Petition — Shelton v. United States

é# Court, ¥.

| FILED

MAY 22 i978

77-1664 |.

RODAK, JR., CLER

IN THE

Supreme Court of the United States

October Term, 1977

——e—__

LORENZO SHELTON,

Petitiorer,

vs.

UNITED STATES OF AMERICA,

Respondent.

-_— ——@ ——

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

Court of Appeals No. 77- 5223

—_—— oe —_—__

CARL ZIEMBA

Attorney for Petitioner

2000 Cadillac Tower

Detroit, Michigan 48226

) (313) 962-0525

—_— —_—_

. ,

Interstate Brief & Record Co.. Wurlitzer Bldg. 1509 Broadway. Detroit, Mi 48226

962-8745 962-8746

TABLE OF CONTENTS

Page

EE ee ey re ee ii

SEE vo shadivscevusckucacevans<éeseeues 2

TT ee ae aide ays 2

es TS i cudneokeeadeeceesenase 2

Constitutional Provisions and Statutes Involved... 3

I occ cueveebicests \suadsspaenacs 4

Reasons for Granting the Writ ................... 6

A. This case presents an important and novel

question of double jeopardy. .............. 6

B. This case involves a dangerous and

unwarranted application of the Hobbs Act.. 9

Sc didvcbodaknek0ogh edktuneannneanemanes 11

PE ids anwspensecsrentesnunchevonesnns 12

Appendix A

Pc bsiddeheccecsavecndesbhaviieunkes steed 13

Appendix B

il

AUTHORITIES CITED IN THE

—_ - Supreme Court of the United States

Ashe v Swenson, 397 US 436 (1970)............. 9

Crain v United States, 162 US 625 (1896) ........ 7 ; October Term, 1977

Green v United States, 355 US 184 (1957)........ 9

United States v Spears, 449 F2d 946 (CA DC 1971) 7

United States v Uco Oil Co, 546 F2d 833(CA91976). 7 LORENZO SHELTON,

| Petitioner,

Constitution: | vs.

UNITED STATES OF AMERICA,

UI, SS rae oe ce Cater at ae net a ean 3 Respondent.

Statutes:

——_o ——__

WEE UE 5 oy concn dese on cenccoeesusaeeee 4,6

18 8 FE a § 1951 Gee esceeeeeseeeesesceesee een 2,4,6,7 PETITION FOR WRIT OF CERTIORARI

es MEE < 2i cs dude is cecaeencesep senses 2 TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

Court of Appeals No. 77- 5223

Petitioner, Lorenzo Shelton, by his attorney, Carl

Ziemba, respectfully prays this Court issue a Writ of

Certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit entered March 31,

1978 in Docket No. 77-5223.

tt

OPINION BELOW

The Opinion of the Court of Appeals is printed as

Appendix A, infra. The Opinion is not yet officilly

reported.

JURISDICTION

The Judgment of the Court of Appeals was the Opinon.

A petition for rehearing was denied by Order dated Ma 2,

1978; it is printed as Appendix B, infra.

Jurisdiction is conferred by 28 U.S.C. § 1254.

QUESTIONS PRESENTED

I

Was petitioner placed in double jeopardy where:

(1) petitioner and one La’ oursiere were charge: in

the first indictment as co-conspirators to vicate

the Hobbs Act but only petitioner was namedias a

defendant on a charge of conspiracy unde 18

U.S.C. § 1951;

(2) and a jury was impaneled and sworn and hard

testimony and the Government moved to disniss

because the district judge ruled that LaCoursere

was an agent of the police and could not le a

co-conspirator;

(3) andthe Government secured a second indictnent

charging petitioner under 18 U.S.C. § 1951 vith

obtaining money under color of official rght

from the same LaCoursiere;

(4) and petitioner was convicted under the seond

indictment?

Il

Does the Hobbs Act apply to a factual situation where:

(1) petitioner was employed by the housing

commission of the City of Detroit but had nothing

whatever to do with letting city contracts for

repairs to public housing and had nothing to do

with handling and accepting bids on contracts;

(2) LaCoursiere sought out petitioner and asked

petitioner to help him submit low bids on repair

contracts to public housing;

(3) LaCoursiere and petitioner agreed that

LaCoursiere would pay petitioner a percentage of

the profits made by LaCoursiere on contracts

which he won as low-bidder;

(4) LaCoursiere paid petitioner sums of money on

three occasions without LaCoursiere’s being

placed in fear or being threatened and without

petitioner's withholding or threatening to

withhold anything which he owed to LaCoursiere

by virtue of his official position?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Fifth Amendment to the United States Constitution

provides:

‘[NJor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

4

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 threatens physical violence to any

person or property in furtherance of a plan or

purpose to do anything in violation of this section

»*> - ©

‘(2) The term ‘‘extortion’’ means the

obtaining or property from another, with

his consent, induced by wrongful use of

actual or threatened force, violence, or fear,

or under color of official right.’

STATEMENT OF FACTS

Under the first indictment, petitioner alone was charged

as a defendant. LaCour: ‘ere and Kettner were named

co-conspirators of petitioner.

This indictment in one count charged a conspiracy

under 18 U.S.C. § 1951 [net under 18 U.S.C. § 371] to

obstruct commerce by extortion, consent having been

induced under color of official right.

Petitioner went to trial on this first indictment. A jury

was impaneled, sworn and it heard testimony. It

developed from the testimony that Kettner just wasn’t a

co-conspirator under the terms of the indictment. It

became known to petitioner during the trial for the first

time that LaCoursiere was, during the entire period of the

alleged conspiracy, a government agent. The district judge

agreed with petitioner that LaCoursiere could not be a

co-conspirator under these circumstances.

5

The Government's attorney saw that he had no case

under the indictment. He moved the court to dismiss the

indictment. The motion was granted.

The Government obtained a second indictment.

This second indictment charged petitioner in three

counts with obtaining money under color of official right

on three different occasions from the same LaCoursiere,

who had been named petitioner's co-conspirator in the

first indictment. The three occasions named in the three

counts had been named as three overt acts of the

conspiracy charged in the first indictment.

Prior to the trial on the second indictment, petitioner

moved to dismiss the indictment on double jeopardy

grounds [among others]. This motion was denied in the

district court.

The case was tried to a jury.

Evidence adduced on trial reflected that petitioner was a

maintenance coordinator in the operation section of the

City of Detroit public housing commission. From time to

time, contracts were let to the lowest bidder for repair

work on various housing units of the commission. These

contracts were let by the Purchasing Department.

Petitioner had nothing whatever to do with the evaluation

of bids or the letting of coniracts.

LaCoursiere and Kettner met in jail. Kettner suggested

to LaCoursiere that a mutually beneficial arrangement

might be set up between LaCoursiere, Kettner and

petitioner. Kettner arranged a meeting between

LaCoursiere and petitioner. This arrangement followed:

LaCoursiere had a home repair company. He wanted to get

into the business of winning repair contracts from the City

of Detroit. He didn’t know how to bid on city repair

contracts and he didn’t know how to be the low bidder.

Petitioner was to give LaCoursiere ideas on how to bid on

6

city contracts, what procedures to use and what lists to get

on so that he might receive bid forms automatically.

LaCoursiere had borrowed $100 000 from an uncle and

wanted to put the money to work and he urged petitioner

to give him enough information so that he might

successfully bid on city repair contracts. It was agreed that

petitioner would receive ten per cent of the net profit

made on these contracts.

On the first occasion that money was paid to petitioner,

LaCoursiere advanced to petitioner $250 when petitioner

was in financial embarrassment. On the second occasion,

petitioner borrowed $450 from LaCousiere. On the third

occasion, LaCoursiere paid petitioner $55 which squared

the parties to that point on the basis of the ten per cent

agreement.

Petitioner did not testify; he adduced no evidence

whatever. Petitioner made appropriate motion for

acquittal which was denied.

The jury acquitted petitioner on the first count and

convicted him on the other two counts.

REASONS FOR GRANTING THE WRIT

A. This case presents an important and novel

question of double jeopardy.

Both the first indictment which charged conspiracy to

extort and the second indictment which charged the

substantive offerse of extortion [both under color of

official right] were laid under the Hobbs Act, 18 U.S.C.

§ 1951.

~-

7

The first indictment charging conspiracy was not laid

under 18 U.S.C. § 371.

18 U.S.C. § 1951 provides punishment for anyone who

obstructs commerce:

(1) by robbery

(2) by extortion

(3) by attempts to rob

(4) by attempts to extort

(5) by conspiring to rob

(6) by conspiring to extort

(7) by threatening physical violence to a person in

furtherance of a plan to rob

(8) by threatening physical violence to a person in

furtherance of a plan to extort

(9) by threatening physical violence to property in

furtherance of a plan to rob

(10) by threatening physical violence to property in

furtherance of a plan to extort.

There is clear authority that Congress did not intend to

create more than one offense, that Congress intended to

enumerate different kinds of conduct as reflecting

different modes of achieving the proscribed result, not

separate and distinct offenses, and that the Government

should have charged the ‘conspiracy’ and the ‘substantive’

modes in one indictment. United States v Spears, 449 F2d

946 (CA DC 1971); United States v Uco Oil Co, 546 F2d 833

(CA 9 1976); Crain v United States, 162 US 625 (1896).

8

It cannot be said that Congress intended to empower the

Government to charge a person successively upon one set

Oo. facts, first with obstructing commerce by robbery; and

failing that, second to charge him with obstructing

commerce by extortion; and failing that, third to charge

him with obstructing commerce by attempting to rob —

and so on until the government achieves a conviction.

Petitioner urges to this Court that double jeopardy

reposes in this situation:

(1) the Government came into court with the first

indictment and told the court that LaCoursiere

had conspired with petitioner to extort; that

LaCoursiere was a co-conspirator; that

LaCoursiere was a ‘co-wrongdoer’ with peti-

tioner, his partner in crime.

(2) then, failing in that theory, the Government came

into court with the second indictment and told

the court that LaCoursiere was the victim of

petitioner, that LaCoursiere was no longer the

co-conspirator of petitioner, no longer his partner

in crime, but the victim of petitioner's extortion.

It does not comport with our concepts of fair play to

countenance the Government's bringing a second

prosecution against petitioner upon the same facts upon

an entirely different theory without explanation for the

change in theory save that the Government's first

prosecution was unsuccessful.

When the Government makes a violent change in theory

from charging that LaCoursiere was petitioner's partner in

crime to charging that LaCoursiere was petitioner's victim

of crime, then petitioner seriously urges to this Court that

the Government is violating the Double Jeopardy Clause

guarantee

9

‘that the State with all its resources and power

[shall] not be allowed to make repeated attempts

to convict an individual for an alleged offense,

thereby subjecting him to embarrassment, expense

and ordeal and compelling him to live in a

continuing state of anxiety and insecurity... .’

Green v United States, 355 US 184, 187 (1957); Ashe v

Swenson, 397 US 436, 450 (1970), Brennan, J,

dissenting.

o0o°0

B. This case involves a dangerous and

unwarranted application of the Hobbs Act.

The Hobbs Act was not meant to apply to a situation,

even if corrupt, in which some person was not victimized.

Here, LaCoursiere was neither robbed nor extorted. No

threats of any kind were made against him.

Petitioner did not withhold or threaten to withhold any

service or ministerial act which by virtue of his office he

was bound to render to LaCoursiere without extracting

payment.

Petitioner committed no act nor withheld any act toward

LaCoursiere which in any manner threatened financial

loss to LaCoursiere.

The evidence in the case clearly supports the following

propositions:

(1) petitioner had absolutely nothing to do with

awarding contracts or distributing public money;

(2)

(3)

(4)

(5)

(6)

(7)

10

LaCoursiere desired to legitimately bid on city

contracts and he desired to be the lowest bidder;

the City of Detroit desired to let its contracts at the

lowest bid possible and in fact let bids to the

lowest bidder;

whatever contract LaCoursiere succeeded in

winning he won by virtue of the fact that he was

the lowest bidder on the contract and he was

accepted by the city because he was the lowest

bidder;

no other contractor was prohibited from bidding

on any contract and no other contractor was

prevented from making a bid lower than did

LaCoursiere except his own determination that

making a lower bid was not in his interest;

there was no evidence and no claim that the work

performed by LaCoursiere on contracts awarded

to him by the city was inferior or not up to

specifications or that the city was in any manner

defrauded or that the city lost any money or paid

more on a contract won by LaCoursiere than the

city would have paid otherwise;

LaCoursiere had capital which he wanted to put to

work to make money; LaCoursiere at some point

decided that he could make money by doing work

for the city but that he didn’t know how to go

about making bids on contracts let by the city;

LaCoursiere approached petitioner with the

proposition that petitioner would advise

LaCoursiere how to bid and how to make a low

bid; LaCoursiere benefited from petitioner's

knowledge of contract bidding procedures and

not from any office held by petitioner.

1]

LaCoursiere ‘hired’ petitioner, not because of some

‘office’ petitioner held, but simply because petitioner had

the background and the knowledge of procedures of

bidding on city contracts to be able to advise LaCoursiere

on how to make a low bid.

It was not a case of LaCoursiere’s being required to pay

‘more than would otherwise be required’ (Appeals

Opinion, App. A, p 22).

It was not a case of LaCoursiere’s having to pay in order

to remove an obstacle to his bidding on city contracts.

It was a case of LaCoursiere’s being eager to pay for

information which he would not otherwise have and

which petition was not under any obligation of office to

give him.

In short, there just wasn’t any violation of the Hobbs

Act.

CONCLUSION

It is respectfully urged to this Court that this case

presents an important and novel question of double

jeopardy; and that it presents a serious and unjustified

extension of the reach of the Hobbs Act which bodes much

mischief.

12

RELIEF SOUGHT

Petitioner respectfully prays this Court issue its Writ of

Certiorari to the Court of Appeals for the Sixth Circuit.

Respectfully submitted,

Carl Ziemba

Attorney for Petitioner

2000 Cadillac Tower

Detroit, Michigan 48226

(313) 962-0525

Dated: May 11, 1978

13

APPENDIX A

OPINION

(United States Court of Appeals

for the Sixth Circuit)

No. 77-5223

Appeal from the United States District Court for the

Eastern District of Michigan, Southern Division.

United States of America, Plaintiff-Appellee, v.

Lorenzo Shelton, Defendant- Appellant.

(Decided and Filed March 31, 1978.)

Before: Phillips, Chief Judge, Edwards and Peck,

Circuit Judges.

Edwards, Circuit Judge. Appellant was convicted in a

jury trial before the United States District Court for the

Eastern District of Michigan on an indictment charging

violation of the Hobbs Act, 18 U.s.C. § 1951 (1976). He was

sentenced to two years, with all but 90 days suspended.

14

His ably argued appeal presents two questions of some

importance. First, was the constitutional prohibition

against double jeopardy violated by the fact that appeilant

was first prosecuted unsuccessfully upon a charge ot

conspiring to violate the Hobbs Act and was subsequently

prosecuted under the same Act for the substantive offense

of extorting money ‘under color of official right’’? Second,

does the language of the Hobbs Act (and Congressional

intent in adopting it) serve to confer federal jurisdiction

over the tacts of this case?

Both questions require reference to the language of the

Hobbs Act, which is Section 1951 of Chapter 95 (entitled

Racketeering’) of the Criminal Code which we reprint in

full below.

Section 1951. Interference with commerce by

threats of violence.—(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 threatens 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—

(1) The term ‘‘robbery’’ means the unlawful

taking or obtaining of personal property trom the

person or in the presence of another, against iris

will, by means of actual or threatened force, or

violence, or fear of injury, immediate or future, to

his person or property, or property in his custody

Or possession, or the person or property of a

relative or member of his family or of anyone in his

company at the time of the taking or obtaining.

15

—

(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 in a State, Territory,

Possession, 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.

(c) This section shall not be construed to

repeal, modify or affect section 17 of Title 15,

sections 52, 101-115, 151-166 of Title 29 or sections

151-188 of Title 45.

18 U.S.C. § 1951 (1976).

THE DOUBLE JEOPARDY QUESTION

The definition of crime contained in § 1951(a) above is

phrased in the disjunctive. Thus in adopting this statute,

Congress sought to make it a crime both to affect

commerce by ‘robbery or extortion” or by ‘‘conspir[ing] so

to do.”’

On May 27, 1976, the U.S. Attorney's office indicted

appellant (and two other named persons) for the crime of

conspiring to obstruct interstate commerce by extorting

money from one of them under color of appellant's public

office. The jury was sworn and the trial began. The

evidence which was disclosed concerning the activities of

~

16

the two other alleged coconspirators showed that ne of

them, Kettner, was involved in the conspiracy soug}t to be

proved only up toa date in 1975. It also showed that during

the alleged conspiracy the other named coconsfpirator,

LaCoursiere, was cooperating with the Federal Bureau of

Investigation. On these facts, at defendant's instarve, the

District Judge ruled that LaCoursiere could rot be

considered a coconspirator and that the profs of

conspiracy were limited to dates earlier than the dates of

payment of money by LaCoursiere to appellant. These

payments had been charged as overt acts in the conspiracy

indictment. '

With these rulings confronting the government, the

U.S. Attorney moved to dismiss the indictment aid the

court granted the motion. The second Hobts Act

indictment against appellant followed charging the

substantive offense of extortion under color of official

right.

There is, of course, no question but that jeopardy

attached in the first trial. Appellant's contention is that the

Hobbs Act indictments and trials constituted double

jeopardy because the two indictments charged the same

crime. We do not agree.

EE ————

' They are also the principal grounds for the subsequent Hobbs Act

extortion indictment.

ee --

17

The fundamental rule concerning prosecution of two

offenses was stated in Blockburger v. United States, where

the Court said:

[W]here the same act or transaction constitutes a

violation of two distinct statutory provisions, the

test to be applied to determine whether there are

two offenses or only one, is whether each provision

requires proof of a fact which the other does it.

Blockburger v. United States, 284 U.S. 299, 304

(1932).

Generally, of course, conspiracy to commit a crime and

the substantive crime itself may be charged as separate

offenses. lannelli v. United States, 420 U.S. 770, 777, 785

n.17 (1975); Pereira v. United States, 347 U.S. 1, 11 (1954);

United States v. Mayes, 512 F.2d 637, 652 (6th Cir.), cert.

denied, 422 U.S. 1008 (1975); United States v. Bradley, 421

F.2d 924, 927 (6th Cir. 1970).

In Pereira v. United States, supra, Chief Justice Warren,

writing the opinion for the Court, said:

The petitioners alleged that their conviction on

both the substantive counts and a conspiracy to

commit the crimes charged in the substantive

counts constitutes double jeopardy. It is settled

law in this country that the commission of a

substantive offense and a conspiracy to commit it

are separate and distinct crimes, and a plea of

double jeopardy is no defense to a conviction for

both. See Pinkerton v. United States, 328 U. S. 640,

643-644, and cases cited therein. Only if the

substantive offense and the conspiracy are

identical does a conviction for both constitute

double jeopardy.

Pereira v. United States, supra at 11.

18

In a very recent case the Supreme Court recanvassed the

double jeopardy problem and quoted approvingly from

lannelli v. United States, supra:

This test emphasizes the elements of the two

crimes. ‘‘If each requires proof of a fact that the

other does not, the Blockburger test is satisfied,

notwithstanding a substantial overlap in the proof

offered to establish the crimes... .” lannelli v.

United States, 420 U.S. 770, 785 n. 17 (1975).

If two offenses are the same under this test for

purposes of barring consecutive sentences at a

single trial, they necessarily will be the same for

purposes of barring successive prosecutions. See/n

re Nielsen, 131 U.S. 176, 187-188 (1889); cf. Gavieres

v. United States, 220 U.S. 338 (1911).

Brown v. Ohio, 432 U.S. 161, 166 (1977).

See also Simpson v. United States, 46 U.S.L.W. 4159, 4160-61

(U.S. Feb. 28, 1978).

In our instant case the proofs required for the conspiracy

indictment differed in two major aspects from those

required to prove the substantive extortion indictment.

The conspiracy charged required proof of Kettner’s

participation in the planning of the crime. The substantive

extortion charge did not. On the other hand, the

indictment for extorting money from LaCoursiere under

color of official right required proof that money was

extorted. No such testimony was legally required for the

conspiracy indictment — although obviously the United

States Attorney considered it a vital part of his

contemplated argument to the jury.

ke Swe wccemo- =

(ie

19

We recognize that appellant contends, all of the above to

the contrary notwithstanding, that he should still prevail

on his double jeopardy argument under an “‘exception”’

stated in Wharton's Rule, 2 F. Wharton, Criminal Law 634

(7th ed. 1874). In lanneili v. United States, supra, justice

Powell's opinion held that ““‘Wharten’s Rule does not rest

on principles of double jeopardy.’ Jd. at 782. On the

contrary, the Court described the rule as a judicial

presumption to be applied only in the absence of contrary

legislative intent, where the charges involve the same

parties and rely upon the same facts, and where the

consequences of the crimes affect only the parties

themselves.

Recognizing these principles, the District Judge in this

case said:

Conspiracy to obstruct commerce by extortion of

payments for the award of repair contracts in

Detroit does not affect only the parties to the

conspiracy; such a conspiracy, if proved,

victimizes the people of Detroit, the many

contractors who might have competed more

successfully for repair contracts had the method for

awarding them been lawful, and the contractor

who paid a premium for the award of the contracts.

Thus, there is no reason to except the Hobbs Act

from the “historical difference between the

conspiracy and its end.” [lannelli v. United States,

supra at 779.)

We agree.

20

We also note that in our judgment Congress clearly

intended to make conspiracy to extort and the substantive

crime of extortion two different offenses, since both 18

U.S.C. §§ 1951(a) and 1951(b) (2) (1976) are phrased in the

alternative.

THE RACKETEERING ISSUE

Appellant also claims that ‘‘racketeering” is an element

of any Hobbs Act crime, that ‘racketeering’ was not

charged in this indictment, and, hence, appellant's con-

viction is void. In this regard appellant relies upon this

court’s opinion in United States v. Yokley, 542 F.2d 300 (6th

Cir. 1976), and the Ninth Circuit’s majority opinion in

Linited States v. Culbert, 548 F.2d 1355 (9th Cir.). cert.

granted, — U.S. —, 98 S.Ct. 53 (1977) (argued January 11,

1978). This precise issue phrased as broadly as appellant

phrases it in this case is now before the United States

Supreme Court awaiting decision, but the two cases upon

which appellant relies in this regard are readily

distinguishable from our present case. Both Yokley and

Culbert involved extortion by use of force or violence. This

court’s opinion in Yokley and the Ninth Circuit's opinion

in Culbert not only relied upon the absence of

‘racketeering’ in the crimes there dealt with, but also

regarded the prosecutions undertaken in the two cases as

invasions of state criminal law sovereignty which were

unintended by Congress.

The facts in our instant case are much closer to this

court’s decision in United States v. Harding, 563 F.2d 299

(6th Cir. 1977), cert. denied, 46 U.S.L.W. 3526 (Feb. 21,

1978). In Harding the court distinguished Yokley by

wee a ~—

Se

21

pointing to the common law history of extortion. At

common law the crime of extortion was defined as the

corrupt taking of money by a public official “under color

of official right.” It seems clear to us that Congress had

this concept of ‘racketeering’ specifically in mind in

adopting the Hobbs Act. In that sense the crime of

extortion of money “under color of official right’ was

another and more legalistic way of describing

“racketeering.” In this respect we note that in United States

v. Nardello, 393 U.S. 286 (1969), the Supreme Court in

Chief Justice Warren's opinion discussed the meaning of

extortion in the Hobbs Act and stated:

At common law a public official who under color of

office obtained the property of another not due

either to the office or the official was guilty of

extortion. In many States, however, the crime of

extortion has been statutorily expanded to include

acts by private individuals under which property is

obtained by means of force, fear, or threats.

United States v. Nardello, supra at 289 (footnote

omitted).

See also United States v. Staszuk, 517 F.2d 53 (7th Cir.

1974) (en banc) (Stevens, J.) (adopting by reference the

panel opinion at 502 F.2d 875, 878), cert denied, 423 U.S. 837

(1975); United States v. Crowley, 504 F.2d 992, 994-95 (7th

Cir. 1974); United States v. Braasch, 505 F.2d 139, 151-53 &

n.8 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975).

Under the circumstances recited above, we dco not

believe that either Supreme Court precedent or precedent

in this court and the courts of appeals generally requires

reversal of this case because the word ‘‘racketeering”’ was

not employed in either the indictment or the charge.

22

OTHER ISSUES

Appellant also appears to contend that this was a

victim less crime and that the money paid was freely rather

than unwillingly paid and that on these grounds,

appellant should be entitled to reversal.

As we have already pointed out in discussing the first

issue, the District Judge found, and we agree, that the

victims of this crime potentially include the people of

Detroit who were deprived of the proper use of public

funds, as well as the contractor who paid more than would

otherwise be required, and the contractors who competed

unsuccessfully.

If appellant's argument as to this issue is intended also

to suggest that the crime should not be punished because it

is de minimis, the answer must be that a little tolerated

corruption can expand rapidly into great corruption.

Additionally, appellant claims that there was no

unwilling victim. We note, however, that the District

Judge gave a charge which specifically excluded the

passive acceptance of a bribe as grounds for conviction:

Extortion under “‘color of official right’’ means

that property was unlawfully obtained from

another person by a public officer, under the color

ee.

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of his office, and the property so obtained was not

due and owing to the public officer, nor was the

property due and owing to the office he

represented. This type of extortion by a public

officer does not require proof of any specific

threats or the use of fear. It is required, however,

that the public official be the initiator or inducer of

the obtaining of the money or property. It is this

requirment of inducing or initiating by the action

or inaction of the defendant that distinguishes this

crime from bribery. Before you can convict the

defendant, you must believe beyond a reasonable

doubt that he in some manner induced or initiated

a transaction resulting in the payment of money to

him as charged in the Indictment.

The jury’s finding of guilt must be read as representing

the jury’s belief that appellant did induce or initiate the

transaction as to which he was found guilty.

We have read the entire Appendix and find therein

ample evidence from which the jury could properly have

reached this conclusion.

Finding no other material issue presented and no

prejudicial error in this record, we affirm the judgment of

conviction.

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APPENDIX B

ORDER

(United States Court of Appeals

for the Sixth Circuit)

No. 77-5223

(Filed May 2, 1978)

United States of America, Plaintiff-Appellee, vs.

Lorenzo Shelton, Defendant-Appellant.

Before: PHILLIPS, Chief Judge, EDWARDS and PECK,

Circuit Judges.

On receipt and consideration of a petition for rehearing

in the above-styled case; and

Noting therein no substantial arguments which had not

been carefully considered by this panel in advance of

issuance of the court’s opinion,

Said motion is hereby denied.

Entered by order of the Court

John P. Hehman, Clerk

By: ‘s' Grace Keller

Chief Deputy

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