Opposition — United States v. New Mexico

No. 77-610

Su the Supreme Court of the Hnited States

Octoser TERM, 1977

Don B. HARDING, PETITIONER

v.

UnitTeD 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

Wave H. McCree, Jr.,

‘Solicitor General, .

BENJAMIN R. CIVILETTI, .

Assistant. Attorney General,

JEROME M: Fert,

WILLIAM C: Brown,

Attorneys, ~

Department of Justice,

Washington, D.C. 20530.

~~ . “

In the Supreme Court of the Hnited States

OCTOBER TERM, 1977

No. 77-610

Don B. HARDING, 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 STAi ES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A15) is

reported at 563 F. 2d 299.

JURISDICTION

The judgment of the court of appeals (Pet. App. A-16 to

A-17) was entered cn September 29, 1977. The petition fora

writ of certiorari was filed on October 26, 1977. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether petitioner's extortionate conduct was shown to

have affected interstate commerce within the meaning of the

Hobbs Act.

(1)

2

STATEMENT

Following a non-jury trial in the United States District

Court for the Western District of Tennessee, petitioner was

convicted of two counts of attempting to affect interstate

commerce by means of extortion, in violation of the Hobbs

Act, 18 U.S.C. 1951. He was sentenced to concurrent terms

of six months’ imprisonment and two years’ probation on

each count and was fined $1,000 on each count (Pet. 5). The

court of appeals affirmed in a comprehensive opinion (Pet.

App. A-I to A-15).

From August 1975 through April 1976, petitioner served

as the executive director of the Tennessee Real Estate

Commission, the state agency that administers the qualify-

ing examination for real estate brokers (App. 25-30, 107).!

The evidence at trial established that during his tenure as

executive director petitioner conducted an ongoing scheme

to extort money from applicants for broker’s licenses in

exchange for improperly providing them with examinatiof:

questions and answers prior to the test (Pet. App. A-2; App.

104-124, 175-177).

Petitioner’s attempt to extort money from two of these

applicants, Brenda Kaye Johnson and Donald Nasca,

formed the basis for the two counts of the indictment. In

February 1976, petitioner met with Johnson, who had just

failed in her third attempt to pass the examination, and

suggested that he could sell her a copy of the questions and

answers to the upcoming examination (Pet. App. A-2).

Johnson agreed, but then reported the incident to agents of

the FBI, who enlisted her aid in investigating petitioner’s

activities. At a subsequent meeting, petitioner delivered the

“App.” refers to the appendix filed by petitioner in the court of

appeals.

3

exam answers to Johnson in exchange for $300 that had

been provided by the FBI (ibid.). The FBI also asked

Donald Nasca, who had twice failed the examination, to

assist in the investigation. Nasca agreed to cooperate, and

he, like Johnson, sent petitioner a letter requesting

assistance in passing the examination (ibid.). Petitioner

responded by offering to sell Nasca a copy of the exam, and

in April 1976 Nasca paid petitioner $300 for the exam

(ibid.). Both Nasca and Johnson tape recorded the meetings

at which they paid petitioner for the examinations (ibid.).

ARGUMENT

In Stirone v. United States, 361 U.S. 212, 215, this

Court observed that the broad language of the Hobbs

Act, 18 U.S.C. 1951—which proscribes extortion affecting

commerce “in any way or degree”—manifests Congress’

intention to use the full extent of its constitutional power

to punish interference with interstate commerce by

extortion, robbery, or physical violence. Against this

background, the courts of appeals have consistently ruled

that only a minimal effect on interstate commerce need be

shown to meet the jurisdictional requirement of the Act.

See, e.g., United States v. Hathaway, 534 F. 2d 386(C.A.

1), certiorari denied, 429 U.S. 819; United States v.

Mazzei, 521 F. 2d 639 (C.A. 3), certiorari denied, 423

U.S. 1014; United States v. DeMet, 486 F. 2d 816, 822

(C.A. 7), certiorari denied, 416 U.S. 969.

Petitioner contends that the court of appeals erred in

finding that even a minimal effect on interstate commerce

resulted from his conduct because the sale of real estate

and the licensing of brokers is solely a matter of state—

not federal—concern.

However, as the court of appeals correctly concluded

(Pet. App. A-5), at least the necessary de minimis effect on

commerce was established. The government introduced

evidence that real estate transactions handled by Tennessee

4

brokers frequently involve purchasers from other states,

including business and commercial investors, that

Tennessee brokers advertise real estate in other states, and

frequently make long distance telephone calls in the course

of business (App. 160-163). One witness testified that

brokers often make use of the Inter-Community Relocation

Service, which involves real estate companies in every city in

the country, and that at least half of the business done by his

firm involved people moving to and from other states (App.

158-164). Indeed, this Court has recognized the interstate

nature of real estate transactions, Goldfarb v. Virginia State

Bar, 421 U.S. 773, 783-785, and Congress has specifically

provided for federal regulation of certain land sales in the

Interstate Land Sales Full Disclosure Act, 82 Stat. 590, as

amended, 15 U.S.C. 1701 et seqg.?

Accordingly, the court of appeals did not err in

concluding that petitioner’s scheme to extort money from

persons who sought to enter the real estate business—but

were unable to pass the state licensing test—affected

interstate commerce.3

2Although, as petitioner emphasizes (Pet. 9-10), the State of

Tennessee regulates the licensing of real estate brokers and the sale of

real estate within the State, this in no way displaces the federal

legislation intended to bar extortion affecting interstate commerce.

Petitioner’s reliance in this connection on Robertson v. California,

328 U.S. 440, is misplaced. Robertson holds that under certain

circumstances, and where Congress has not acted to the contrary,

states may regulate activities of importance to the local community

even if that activity affects interstate commerce. Robertson does not

purport to limit the power of the federal government to act to

regulate activities affecting commerce, and, of course, nothing in the

Hobbs Act prevents the State of Tennessee from regulating real estate

brokerage within its borders.

‘Petitioner directs much of his argument against the rationale of

the decision in United States v. Staszcuk, 517 F. 2d 53, 60 (C.A. 7),

certiorari denied, 423 U.S. 837, which held that the jurisdictional

element of the Hobbs Act could be satisfied by showing that at the

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CONCLUSION

It is therefore respectfully submitted that the petition fora

writ of certiorari should be denied.

Wape H. McCree, Jr..

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

WILLIAM C. Brown,

Attorneys.

JANUARY 1978.

time of the extortionate transaction there existed a “realistic

probability” that commerce would be affected, although the

completed transaction did not affect commerce. Since the transac-

tions here did have an effect on interstate commerce, Staszcuk is

distinguishable, and its rationale is not at issue in this case. To the

extent that petitioner suggests that his scheme did not actually affect

commerce because the FBi intervened and no unqualified brokers

actually passed the exam, he ignores the fact that he was convicted

of attempting extortionate conduct affecting commerce, not of having

succeeded in his endeavors (see App. 190-196). In the case of an

attempt, the jurisdictional element is satisfied if it is established that,

if the criminal plan had been successfully implemented, its natural

and probable consequences would have included an effect on

commerce. See United States v. Gupton, 495 F. 2d 550 (C.A. 5);

Anderson v. United States, 262 F. 2d 764, 769-770 (C.A. 8); Hulahan

v. United States, 214 F. 2d 441 (C.A. 8). That test was clearly met

here.

‘Petitioner does not raise, and this case does not present, the question

now pending before this Court in United States v. Culbert, No. 77-142.

certiorari granted October 3. 1977, /.e., whether conduct within the plain

language of the Hobbs Act is nonetheless not proscribed by that Act

unless it is also proven to constitute racketeering. The court of appeals

held (Pet. App. A-13 to A-14) that petitioner's conduct constituted

racketeering, because “[t]he concept of racketeering * * * has long been

understood to include the obtaining of property under color of official

right * * *.”

DOJ-1977-12