Opposition — Grigson v. United States

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No. 76-1141

In the Supreme Court of the United States

OCTOBER TERM, 1976

OpiE DUKE GRIGSON, PETITIONER

Vv.

United STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DANIEL M. FRIEDMAN,

Acting Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

SIDNEY M. GLAZER,

SARA CRISCITELLI,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1141

OpiE DUKE GRIGSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals rendered no opinion. The opinion

of the district court (Pet. App. la-6a) is not reported.

JURISDICTION |

The judgment of the court of appeals was entered on

December 13, 1976. A petition for rehearing was denied

on January 20, 1977. The petition for a writ of certiorari

was filed on February 17, 1977. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a state officer who obtains money from a truck

owner operating in interstate commerce in return for

failing to enforce a state weight limitation obstructs or

affects commerce by extortion in violation of 18 U.S.C.

1951, the Hobbs Act.

(1)

NS

4

2

STATUTE INVOLVED

18 U.S.C. 1951 provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays,

or affects commerce or the movement of any article

or commodity in commerce, by robbery or extortion

or attempts or conspires so to do, or commits or threat-

ens physical violence to any person or property in

furtherance of a plan or purpose to do anything in

violation of this section shall be fined not more than

$10,000 or imprisoned not more than twenty years,

or both.

(b) As used in this section-

7. + &+ & *

(2) The term “extortion” means the obtaining

of property from another, with his consent, induced

by wrongful use of actual or threatened force,

violence, or fear, or under color of official right.

(3) The term “commerce” means commerce

within the District of Columbia, or any Territory

or Possession of the United States; all commerce

between any point ina State, Territory, Posses-

sion, or the District of Columbia and any point

outside thereof; all commerce between points

within the same State through any place outside

such State; and all other commerce over which the

United States has jurisdiction.

STATEMENT

Following a jury-waived trial before the United States

District Court for the Eastern District of Kentucky, peti-

tioner was convicted of two counts of extortion in viola-

tion of 18 U.S.C. 1951, the Hobbs Act. He was sentenced

to concurrent terms of two years’ imprisonment. The

court of appeals affirmed (Pet. App. 7a).

3

The facts are set forth in the opinion of the district

court (Pet. App. la-3a). Briefly, the evidence showed that

petitioner, a Kentucky law enforcement officer, stopped a

truck belonging to the Hughes Construction Company on

October 15, 1975, and cited the driver, Philip Shinkle,

for operating an overweight vehicle. After the driver ad-

mitted that he knew the truck was overweight, petitioner

offered to “work something out” with Ben Hughes, the

owner of the truck (Tr. 9). The same day, petitioner met

with the Hughes, who paid petitioner $50 from the assets

of the business to “take care” of the ticket (Tr. 10, 19, 22).

Thereafter, the driver and the owner did not appear in

court and did not pay any fine in connection with the of-

fense. It is uncontested that Hughes Construction Com-

pany was engaged in interstate commerce at the time of

the incident (Tr. 20).

On February 20, 1976, petitioner cited Curtis Mays, a

truck driver for the Tri-State Drywall Supply Company,

another firm engaged in interstate commerce, for operating

an overweight truck. Petitioner told Mays that the fine

could be $500 to $600 and suggested that Mays’ boss

contact petitioner so that they might work something

out (Tr. 23-27, 32). Donald Dwire, Mays’ boss, telephoned

petitioner that afternoon, arranged a meeting with him,

and then contacted the Federal Bureau of Investigation

(Tr. 33-34). Several days later, an FBI agent posing as

Mr. Dwire met with petitioner. Petitioner said that he would

accept $100 to take care of the citation, and the agent

paid him $100 in funds belonging to the FBI (Tr. 39-44;

Gov't. Ex. 5).

ARGUMENT

1. Petitioner contends (Pet. 15-19) that his conduct in

demanding and obtaining payments for voiding citations

issued in his official capacity did not constitute extortion

4

within the meaning of the Hobbs*Act, 18 U.S.C. 1951.

That statute defines extortion as “the obtaining of property

from another, with his consent, induced by wrongful use

of actual or threatened force, violence or fear, or under

color of official right.” Petitioner argues that the “color

of official right” portion of the statute cannot be violated

in the absence of coercion by threat, fear or duress.

This contention, which is inconsistent with the disjunc-

tive formulation of the statute, has been uniformly rejected

by the courts of appeals to which it has been presented,

and this Court has consistently refused to review the issue.

See United States v. Hathaway, 534 F. 2d 386 (C.A. 1),

certiorari denied, No. 75-1529, October 4, 1976; United

States v. Trotta, 525 F. 2d 1096 (C.A. 2), certiorari denied

425 U.S. 971; United States vy. Mazzei, 521 F. 2d 639

(C.A. 3), certiorari denied, 423 U.S. 1014; United States

v. Braasch, 505 F. 2d 139, 151 n. 8 (C.A. 7) certiorari

denied, 421 U.S. 910; United States v. Crowley, 504

F. 2d 992 (C.A. 7); United States v. Hyde, 448 F. 2d 815

(C.A. 5), certiorari denied, 404 U.S. 1058; United States

v. Kenny, 426 F. 2d 1205 (C.A. 3), certiorari denied, 409

U.S. 914.

Petitioner appears to argue (Pet. 18-19), that these

events constituted bribery and not extortion, relying upon

two of the opinions in United States v. Staszcuk, 502

F. 2d 875, 882 (C.A. 7) (Campbell, J., concurring), on re-

hearing en banc, 517 F. 2d'53, certiorari denied, 423 U.S.

837. Nothing in those opinions suggests, however, that

payment solicited by an official to abstain from threatened

enforcement of the law does not constitute extortion within

the meaning ofthe Act, and in fact the law is clear that

bribery and extortion are not mutually exclusive offenses.

See, e.g., United States v. Hathaway, supra, 534 F. 2d

at 394. In United States v. Braasch, supra, like Staszcuk a

5

Seventh Circuit case, the court of appeals rejected the

argument that officials who take money for failing to per-

form their duties would not be guilty of extortion. The

court stated (505 F. 2d at 151):

It matters not whether the public official induces

payments to perform his duties or not to perform his

duties, or even, as here, to perform or not to perform

acts unrelated to his duties which can only be under-

taken because of his official position. So long as the

motivation for the payment focuses on the recipient’s

office, the conduct falls within the ambit of 18 U.S.C.

§1951. That such conduct may also constitute “classic

bribery” is not a relevant consideration.

This has been the consistent view of the courts of ap-

peals. “Threatening to take official action - even where it

is action that the official is duty-bound to take - for the

purpose of coercing the victim to pay the official is extor-

tion.” United States v. Hyde, supra, 448 F. 2d at 832;

see also United States v. Gill, 490 F. 2d 233 (C.A. 7),

certiorari denied, 417 U.S. 968; United States v. DeMet,

486 F. 2d 816 (C.A. 7), certiorari denied, 416 U.S. 969.

Petitioner’s explicit threat to enforce the citation for the

weight violation unless money was paid to him constituted

extortion within the meaning of the statute.

2. Although petitioner’s extortionate demands were

directed at two companies engaged in interstate com-

merce, he also contends (Pet. 9-16) that his conduct did not

sufficiently “affect commerce” to support application of

the Hobbs Act. The courts below correctly rejected this

argument.

In enacting the Hobbs Act, Congress intended to utilize

its constitutional power to regulate commerce to the full-

est possible extent. Stirone v. United States, 361 U.S. 212,

6

215. The purpose of the Act parallels the central design

of the Commerce Clause itself and therefore proscribes

extortion that “in any way or degree obstructs, delays or

affects commerce” United States v. Staszcuk, supra, 517

F. 2d at 58. The statute thus grants federal jurisdiction in

all situations where commerce is affected, even where the

affect may be minimal. United States v. Tropiano, 418

F. 2d 1069 (C.A. 2), certiorari denied, sub nom. Grasso v.

United States, 397 U.S. 1021; Carbo v. United States,

314 F. 2d 718, 732 (C.A. 9), certiorari denied, 377 U.S.

953; United States v. Gill, supra; United States v. Amato,

495 F. 2d 545 (C.A. 5).

Whatever the outer jurisdictional limits of the Hobbs

Act, extortion directed at the owners and drivers of trucks

engaged in commerce has always been considered to be

within the reach of the Act. Cf. United States v. Enmons,

410 U.S. 396, 401; United States v. Local 807, 315 U.S.

521. Here, the fact that petitioner’ scheme imposed on

trucking companies engaged in interstate commerce the

burden of paying funds to petitioner is sufficient to meet the

jurisdictional prerequisite. The statute does not require

the court to make the comparison urged by petitioner (Pet.

9) between the amount of money extorted and the fine

that might have been levied had the citation been enforced.

It is speculative whether petitioner would have stopped

the truc's at all absent the opportunity they presented for

extortion. That the ability to issue lawful citations was

utilized in a fashion that placed a burden on those engaged

in interstate commerce is sufficient to sustain the Hobbs

Act violation.' Cf. Perez v. United States, 402 U.S. 146,

151-154.

'The violation here affected commerce in an additional fashion by

interfering with the enforcement of laws regulating the weight of

7

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

DANIEL M. FRIEDMAN,*

Acting Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SIDNEY M. GLAZER,

SARA CRISCITELLI,

Attorneys.

May 1977.

trucks. These state weight maximums are designed to protect the

structural soundness of arteries of commerce, and there is a “realistic

probability” that an interference with the enforcement of such

laws would also have had some effect on interstate commerce by

damaging the highways.

*The Solicitor General is disqualified in this case.

DOJ-1977-05