Petition — Santoni v. United States

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IN THE

Supreme Court, U,

FILED

NOV 0 1978

| “Micnaer RODAK, JR., CLERK

aii

peta and

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

nxn. %8"8483

GEORGE JOSEPH SANTONI

Petitioner

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Harold I. Glaser

Richard M. Karceski

Saul Z. Reese

Attorneys for Petitioner

1504 Arlington Federal Bldg.

Charles & Lexington Streets

Baltimore, Maryland 21201

685-7666

INDEX

TABLE OF CONTENTS

Mpgmhem Belew . 1. « 4 6 ee ee le te 1

mg ee ee ee ee ee ee ee ee 2

Question Presented .......... 2

Statutory Provision Involved ..... 2

Statement of the Case ......... 4

Statement of Facts ..+« ss eee es 4

Reason for Granting the Writ ..... 9

ee ee ee ee ae ee ee ee ee ee 24

Appendix A

Opinion of the United States Court

of Appeals for the Fourth Circuit A. 1

Appendix B

Appendix to Petitioner's Brief

to the United States Court of

Appeals for the Fourth Circuit A.17

TABLE OF CITATIONS

Cases

Glasser v. United States, 315 U.S.

Ge Seen « a2 « 6 eo c/a

Heart of Atlanta Motel v. United

States, 379 U.S. 241 (1964)

Lester v. McFadden, 415 F.2d 1101

(4th Cir. 1969) (Haynsworth,

Sota = «64 * a «4 8 @ = © ©

McSparrow v. Weist, 402 F.2d 867

(3rd Cir. 1968) (en banc),

cert. denied, 395 U.S. 903

a -- « «wa « © «¢ 6. « -<

National League of Cities v. Usery,

423 U.S. 833 (1976) . . ‘

Stirone v. United States, 361 U.S.

EE ca ae a eS ee

United States v. ARcher, 486 F.2d

670 (2nd. Cir. 1977) .

United States v. Augello, 451 F.2d

1167 (2nd Cir. 1971) ..

United States v. Culbert, 548 F.2d

(9th Cir. 1977) (per curiam)

United States v. Elders, No. 77-

1181, slip op. at 12 (7th Cir.

Feb. 1, 1978) (Bauer, J.,

G@ieeenting) « . « «+ «+ « «

United States v. Enmons, 410 U.S.

. Be 3 2) ;

Page

iii

United States v. Gambino, 566 F.2d

414 (2nd. Cir. 1977)

United States v. Hunter, 478 F.2d

1010 (7th Cir.) cert. denied,

414 U.S. 857 (1973) ; geste

United States v. Hyde, 448 F.2d

815 (5th Cir. 1971), cert.

denied, 404 U.S. 1058 (1972)

United States v. Kuta, 518 F.2d 947

(7th Cir.) cert. denied, 423

S.8. 3034 (a97S) « « « « *

United States v. Merolla, 523 F.2d

Si (2n@ Cie. 1975) . -« « «

United States v. Russell, 411 U.S.

Sie ante) + 8 & © 3% ene

United States v. Spagnola, 546 F.2d

1117 (4th Cir. 1969) (Haynsworth,

C.J.) . . . . a - - - . 7 . . a

United States v. Staszcuk, 502 F.2d

875 (7th Cir. 1974), aff'd. in

part and rev'd in part on other

grounds 517 F.2d 53 (7th Cir.

oy) ) ae ae ee ee re oe | Pet

United States v. States, 488 F.2d

76n (BGR Cie. i873) <«' + 6 «

United States v. Yokley, 542 F.2d

200 (6th Cir. 1976) .....

STATUTES

Hobbs Act 18 U.S.C. §1951 (1970) . . 9,21

The Travel Act 18 U.S.C. §1952 (1970)

28 U.S.C. §1359 (1970)

MISCELLANEOUS

N. Abrams, Consultant's Report on

Jurisdiction, 1 Working Papers

of the National Commission on

Reform of Federal Criminal

Laws (1970) ....

Kilbert and Fort, National League

of Cities v. Usery: Its

Meaning and Impact; 45 Wash. L.

Rev. 613, 632 (1977) . ;

Stern, Prosecutions of Local Political

Corruption Under the Hobbs Act:

The Unnecessary Distinction

Between Bribery and Extortion,

3 Seton Hall L. Rev. 1 (1971)

IN THE

3 SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

GEORGE JOSEPH SANTONI

Petitioner

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR TIE FOURTH CIRCUIT

Petitioner, George Joseph Santoni, prays

that a Writ of Certiorari issue to review

the opinion and judgment of the United

“ States Court of Appeals for the Fourth

Circuit filed in the above entitled case on

19 October, 1978.

OPINION BELOW

The opinion of the United States Court

of Appeals for the Fourth Circuit is a pub-~

lished opinion which appears in Appendix A

to this Petition, A.1 - A.16 , infra.

JURISDICTION

The Judgment of the United States Court

of Appeals sought to be reviewed was filed

on 19 October, 1978. The jurisdiction of

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

QUESTION PRESENTED

1. Is a minimal interstate commerce

connection, provided solely by the activi-

ties of the Government investigative agents

themselves, absent some express showing of

manifest necessity, insufficient as a matter

of law to confer Federal criminal jurisdic-

tion under the Hobbs Act?

STATUTORY PROVISION INVOLVED

This case and the issue presented

involves the statutory provision of the

Hobbs Act, 18 U.S.C. § 1951:

"(a) Whoever in any way or degree

obstructs, delays, or affects com-

merce or themovement of any arti-

cle 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 further-

ance of a plan or purpose to do

anything in violation of this sec-

tion 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 from the person

or in the presence of another,

against his will, by means of

actual or threatened force, or

violence, or fear of injury,

immediate or future, to his per-

son or property, or property in

his custody or possession, or the

person or property of a relative

or member of his family or of any-

one in his company at the time of

the taking or obtaining.

(2) The term ‘extortion’ means

the obtaining of property from

another, with his consent, induced

by wrongful use of actual or threat-

ened 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.

strued 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.

June 25, 1948, c. 645, 62 Stat. 793."

STATEMENT OF THE CASE

On 7 December, 1976, the Grand Jury for

the United States District Court for the

District of Maryland handed up an indictment

charging Petitioner, George Joseph Santoni,

with having violated 18 U.S.C. § 1951 and

26 U.S.C. § 7206 (1).

The trial of Santoni commenced on 26

April, 1977, before The Honorable Edward S.

Northrop, Chief Judge, with the aid oz a

Jury. On 5 May, 1977, the Jury returned

verdicts of guilty on four Hobbs Act Counts;

Appellant was found not guilty on the tax

evasion count.

Subsequent to the entry of the verdict

of the Jury, a Motion for New Trial was

filed on behalf of Petitioner. This Motion

was heard and denied.

Thereafter, George Joseph Santoni,

Petitioner, was sentenced to the custody of

the Attorney General or his authorized

representative for imprisonment for a period

of five years. It is from this conviction

and sentence that Petitioner noted his

Appeal to the United States Court of Appeals

for the Fourth Circuit. His conviction hav-

ing been affirmed, it is from that decision

that Petitioner notes his timely request to

this Honorable Court.

STATEMENT OF FACTS

In September, 1974, Salvatore Spinnato

spoke to Special Agent Dudley Hodgson of the

Federal Bureau of Investigation about alleged

political corruption and contract kickbacks

in the City of Baltimore. Subsequently,

Spinnato agreed to serve as a "consultant" to

a company which would be formed by the FBI.

The purpose of this company was not to engage

in commerce or make a profit: it was to

investigate wrongdoing in the Baltimore area.

As a result of his conversations with

Spinnato, Agent Hodgson discussed the matter

with the Baltimore office of the FBI; FBI

Headquarters in Washington, D.C.; and the

United States Attorney's Office in Baltimore.

The formation of an undercover company was

authorized and the fundstherefore were pro-

vided by FBI Headquarters in Washington, D.C.

This undercover company, the "Municipal

Chemical Corporation," was incorporated in

Maryland in February, 1975. Agent Hodgson,

using the false name "Douglas Hollier,"

became its president. Agent Hodgson invented

a fake background to accompany his fake name,

and lied, at times under oath, to city and

state officials when he considered it nec-

essary to the investigation.

Spinnato was associated with the

Municipal Chemical Corporation from its

inception: he had agreed to help the com-

pany bid for city contracts, conduct demon-

strations, assist in whatever day-to-day

work might be required, and attempt to get

other people involved in order that the FBI

“could see exactly what's going on in the

City of Baltimore as far as contracts are

concerned."

Spinnato and Petitioner had known one

another prior to the formation of Municipal

Chemical: they first met around 1970 when

they planned and entered into a short-lived

and ill-fated business venture. Around the

middle of June, 1975, Spinnato contacted

Petitioner and tcld him that he (Spinnato)

had associated himself with a company that

had wealthy backers who were interested in

securing city contracts. That company was,

of course, the Municipal Chemical Corporation.

Over the course of the next few days,

Spinnato and Petitioner had several conversa-

tions concerning the Municipal Chemical

Corporation and city contracts. Spinnato

testified that during this period Petitioner

demanded $2,500 from Municipal Chemical or he

(Petitioner) would "shut us down." Shortly

thereafter, Spinnato testified, Petitioner

demanded an additional $500. Spinnato testi-

fied that he received from an FBI agent two

envelopes bearing the letterhead of Municipal

Chemical Corporation; one envelope contained

$2,500, the other contained $500. Spinnato

further testified that he gave these envelopes

to Petitioner.

Sometime prior to this transaction, FBI

Special Agent Ronald Miller became associated

with Municipal Chemical. His ostensible pur-

pose for joining the company was to provide

an additional $10,000 needed by the corpora-

tion; his real purpose for coming aboard was

a feeling on the part of the FBI that an

additional undercover agent was needed.

Agent Miller adopted the false name "Ron

Marco" and a false background to match. Agent

Miller was listed, under his false name, as

vice-president of Municipal, and Agent Miller

admitted at trial that he had perpetrated a

deceit upon the State of Maryland by filing

an affidavit swearing that everything in

Municipal's Articles of Incorporation was

true.

The testimony of both FBI agents tended

to corroborate Spinnato's account of passing

the $3,000 to Petitioner. Agent Miller tes-

tified that he took two envelopes, put $2,500

in one and $500 in the other, and gave both

to Agent Hodgson. Agent Hodgson testified

that he turned both envelopes over to Spinnato,

and that he (Hodgson) saw Spinnato give both

envelopes to Petitioner.

Subsequently, Municipal Chemical Corpor-

ation entered into a subcontract with a Mr.

Nicolaidis, of Olympos Painting Company,

whereby Municipal would perform certain work

on a Baltimore City School in return for

$16,000 to be paid by Olympos. There was

some evidence apparently from which the jury

concluded that it was extortionate activity

on the part of Petitioner that caused Mr.

Nicolaidis to enter into the subcontract with

Municipal. At any rate, Spinnato testified

that shortly after the subcontract was signed

he gave Petitioner an envelope bearing the

letterhead of Municipal Chemical Corporation

containing $1,600, in payment of the ten

percent kickback that Spinnato testified

Petitioner had demanded. Here again, the

testimony of both Agent Hodgson and Agent —

Miller tended to corroborate Spinnato's

account of passing the $1,600 to Petitioner.

Over the next couple of weeks, Municipal.

Chemical carried out its part of the subcon-

tract. In doing so, Municipal used a chemical

sealer known as Hydron-300, as required by

the contract. Municipal purchased some

Hydron-300 in Maryland, and some in Pennsyl-

vania. Agent Hodgson testified that Hydron-

300 is manufactured in Pennsylvania, but

there was no testimony that Hydron-300 is

manufactured only in Pennsylvania, or, indeed,

that domestically manufactured Hydron-300 was

unavailable.

In performing its duties under the sub-

contract, Municipal Chemical made use of a

"Sky-Climber" power scaffold which appears to

have been manufactured by or rented from a

California firm. Here again, however, there

was no testimony that a domestically produced

version of such an apparatus was unavailable.

Olympos Painting Company worked on the

same school as did Municipal Chemical Corpor-

ation; their tasks, however, were different.

Mr. Nicolaidis, the president of Olympos,

testified, but nowhere in his testimony is

the slightest reference to interstate commerce

to be found. Although his testimony reveals

that he made use of Hydron-300, he did so at

Municipal's request, and, indeed, the Hydron-

300 was provided by Municipal. Although Mr.

Nicolaidis's testimony indicates that some

of the Hydron-300 he used came from his own

supply, there was no testimony that indicates

that his Hydron-300 was manufactured or pur-

chased out of state.

Spinnato testified that he met with

Petitioner after the school job was completed,

at which time Petitioner demanded $10,000 in

exchange for which Municipal Chemical would

be awarded city demolition contracts.

Spinnato further testified that he and Agent

Hodgson met with Petitioner the following

day and the matter of a $10,000 payment in

exchange for demolition contracts was again

discussed. Agent Hodgson testified that

Petitioner said that it would cost $10,000

to get into demolition, and that, after get-

ting the go-ahead from FBI Headquarters in

Washington, he (Hodgson) gave Petitioner

$10,000 on October 31, 1975.

By February 3, 1976, the FBI had decided

that Spinnato should leave the operation. By

that time the FBI was paying Spinnato $300

a week for his services. On February 11, 1976,

the FBI decided to "close down the operation,"

and the Municipal Chemical Corporation, for

all practical purposed, ceased to exist.

REASON FOR GRANTING THE WRIT

A minimal interstate commerce connection,

provided solely by the activities of the

Government investigative agents themselves, is,

absent some express showing of manifest nec-

essity, insufficient as a matter of law to

confer Federal criminal jurisdiction under

the Hobbs Act.

Petitioner, George Joseph Santoni, stands

convicted of four counts of violating the

Hobbs Act, 18 U.S.C. § 1951 (1970). Petitioner

concedes at the outset that the Hobbs Act

“speaks in broad language, manifesting a pur-

pose to use all the constitutional power Con-

gress has to punish interference with inter-

state ccmmerce by extortion, robbery or physi-

cal violence. The Act outlaws such inter-

ference ‘in any way or degree'". Stirone v.

United States, 361 U.S. 212, 215 (1960).

Thus, a defendant's impact upon interstate

commerce need not be substantial in order to

support a conviction.

As this court has said:

As its language indicates, the

{Hobbs Act] is not to be narrow-

ly construed nor is it "Limited

to a conduct which directly and

immediately obstructs a partic-

ular movement of goods in inter-

state commerce" but covers any

extortions which in any degree

may reasonable be regarded as

affective commerce... . [A]J1ll

that is required to bring an

extortion within the statute is

proof of a reasonable probable

effect on commerce, however min-

imal, as a result of the extor-

tion.

United States v. Spagnolo, 546 F.2d 1117,

ITI8-19 (4th Cir. 1976) (per curiam) (foot-

notes, citing cases, omitted).

Cited with approval in Spagnola, 546

F.2d at 119 n.6, was United States v. Staszcuk,

517 F.2d 53 (7th Cir. 1974) (en banc), cert.

denied, 423 U.S. 837 (1975) where Judge

(now Justice) Stevens, speaking for the

Seventh Circuit Court of Appeals, said:

We hold. . . that the commerce

element of a Hobbs Act violation--

the Federal Jurisdictional fact--

may be satisfied even if the record

demonstrates that the extortion had

no actual effect on commerce...

{JJurisdiction in the particular

case is satisfied by showing a

realistic probability that an

extortionate transaction will

have some effect on interstate

commerce.

517 F.2d at 59-60. Staszcuk was, and arguably

still is, the case that has gone furthest in

reducing the degree of interstate commerce

connection necessary to justify a Hobbs Act

conviction. See id. at 66 (Pell, J.,

dissenting).

To be sure, Staszcuk stands for the

proposition that the connection between the

extortion and interstate commerce need only

be de minimus; but Staszcuk just as surely

stand for the principle that this connection,

minimal though it may be, need be proved in

every Hobbs Act case. After discussing the

Satan reach of the Hobbs Act, Judge Stevens

went on to note,

This does not mean, however, that

we may ignore the constitutional

limits on the power of the national

government. Nor may we disregard the

statutory language which requires

the prosecutor to prove some con-

nection with interstate commerce

in every case. The language of

this statute does not permit us

to treat it as a determination that

since the class of activities giving

rise to federal concern has an

adverse effect on commerce, Congress

intended any activity within the

class to be subject to prosecution

without the necessity of any show-

ing of an actual or potential

effect on commerce in the partic-

ular case. Compare United States

v. Hunter, 478 F.2d 1019, 1020-21

(7th Cir.), cert. denied, 414 U.S.

857 (1973).

517 F.2d at 59 & n. 16.

In other words, some interstate nexus

must be proved. It may be strong, it may be

weak, it may be past, present, or future;

but whatever it is, it must be proved. It

is not surplusage and cannot be treated as

surplusage. Proof of "(t]he charge that

interstate commerce is affected is critical

since the Federal Government's jurisdiction

of this crime rests only on that interfer-

ence." Stirone v. United States, 361 U.S.

212, 218 (1960).

No interstate nexus was proved in count

two of the instant case. The victim of the

extortion charged in count two, (A.17-21) was

the olyinpos Painting Company. The trial

court's instruction on count two, insofar as

it related to the required element of inter-

state commerce was as follows:

2. That in obtaining and attempt-

ing to obtain contracts from the

City of Baltimore and others for

the chemical cleaning of buildings

the Olympos Painting Company intend-

ed to move and did cause to be moved

certain articles, commodities, men,

materials and supplies and machin-

ery in interstate commerce from the

State of Maryland to outside the

State and vice-versa. (A. 29)

The trial court then charged the jury that,

"as a matter of law," any one such trans-

action, if believed beyond a reasonable doubt

by the jury to have occurred, would have

affected interstate commerce. (A. 30)

The récord is devoid of any evidence of

Olympos Painting Company's moving or attempt-

ing to move articles, commodities, men, °

materials and supplies and machinery across

state lines. Mr. Nicolaidis, the president

of Olympos, testified: his testimony can be

found. Neither there nor anywhere_else in

the record is there such evidence.~ In short,

. There was evidence that pt used some

Hydron-300 that had been provided by Municipal.

There was also evidence that this particular

batch of Hydron-300 had been purchased or

manufactured out of state. Nonetheless, it

is Petitioner's position (developed in depth,

infra) that the Government cannot establish

the required element of interstate commerce

there is no way a jury could reasonably have

concluded, in accordance with the Court's

instruction, that the Olympos Painting Company

had any interstate connection.

Municipal Chemical Corporation was the

"victim" of the extortions charged in counts

one, three and four, (A.17~-23),but unlike

Olympos, Municipal did more "certain. .

materials, supplies and machinery," (A. 29)

across state lines: some chemical sealer

was bought in Pennsylvania, a scaffold was

rented from California. Nonetheless,

Petitioner submits that if Municipal Chemical

Corporation had imported materials from every

state in the Union, that fact alone would not

have satisfied the jurisdictional element of

the Hobbs Act.

Whether a particular set of facts satis-

fied the jurisdictional requirement of the

Hobbs Act--whether it constitutes interstate

commerce--is a question of law, to be decided

by the court; whether these facts are proved

is a question of fact, to be decided by the

jury. See, e. United States v. Hyde, 448

F.2d 815, 839-41 & n.34. (5th Cir. 1971),

cert. denied, 404 U.S. 1058 (1972). Here,

the trial court's charge to the jury on

counts one, three and four, insofar as it

related to the required element of interstate

1 solely through the actions of its own agents.

Here, the only arguable link between Olympos

and interstate commerce is Olympos's use of a

particular batch of chemical provided to it by

the Government's own undercover agents. This,

Petitioner submits, is insufficient to estab-

lish the interstate nexus required by the

Hobbs Act.

commerce, differed in no substantial respect

from the corresponding charge on count two:

Municipal Chemical was treated just like any

other company that happened to have been the

extorted party in a Hobbs Act case. (qa, 29-30)

But Municipal Chemical Corporation was

not just another company. Municipal was

planned, set up, incorporated, staffed,

funded, and directed by the Federal Bureau of

Investigation. The corporation was not formed

to make money or to engage in interstate com-

merce; it was formed with the express purpose

of allowing itself to be "victimized" by some

unlucky extortionist. Assuming, but certain-

ly without conceding, that it is legaily and

logically possible to extort an FBI organiza-

tion that wants to be extorted, the fact re-

mains that extortion, even if it be proved,

does not constitute a violation of the Hobbs

Act unless the extorted party's connection

with interstate commerce be proved as well.

United States v. Staszcuk, 502 F.2d 875, 879

& n.l0O (7th Cir. 1974), aff'd in part and

reversed in part on other grounds, 517 F.2d

53, cert. denied, 423 U.S. 837 (1975).

We have here, then, a case where the

doubly crucial element of interstate commerce--

it comprises both the jurisdictional predicate

and a substantive element of the offense--

was provided by the Government.

Appellant is aware of only one other

Hobbs Act case in which the Government has

resorted to such tactics.2 A similar situa-

2 United States v. Gambino, 566 F.2d 414

(2a Cir. 1977). Defendants in Gambino were

convicted of, inter alia, violation, or vio-

lations, of the Hobbs Act. It appears that

the Hobbs Act violation (or some, or all,

tion, however, was involved in United States

v. Archer, 486 F.2d 670 (2d Cir. 1973), a

prosecution brought under the Travel Act, 18

U.S.C. § 1952 (1970). There, federal agents,

apparently in an attempt to transform a local

crime into a federal offense, see 486 F.2d

at 681, engaged in acts which, had they been

engaged in by private parties, would have

satisfied the jurisdictional (interstate

commerce) requirement of the Travel Act. In

of the Hobbs Act violations) stemmed from

defendant's extortion, or attempted extortion,

of a corporation set up by the FBI. Reject-

ing defendant's jurisdictional challenges,

the court affirmed the Hobbs Act convictions.

The court distinguished United States v.

Archer, 486 F.2d 670 (2d Cir. 1973), on the

ground that the federal agents in Archer con-

trived to engage in interstate activity for

the sole purpose of creating jurisdiction.

In Gambino, however, the court found--based

apparently on the trial court record-- that

the activities of the undercover corporation

"were necessarily wedded to interstate com-

merce." 566 F.2d at 419. In the case at bar

there was no evidence presented which even

tends to prove that the activities of the

Municipal Chemical Corporation "were nec-

essarily wedded to interstate commerce."

In an attempt to distinguish Archer on

another ground, the court indicated that the

Hobbs Act's jurisdictional predicate-- inter-

state commerce-- would have been satisfied

even had the FBI corporation not engaged in

interstate commerce. See 566 F.2d at 419.

The nub of this alternative holding seems to

be that the FBI corporation was in the garbage

collection business, and that it had been

proved--again, based apparently on the record

Archer, the Second Circuit Court of Appeals,

speaking through the pen of Judge Henry

Friendly, went to some lengths to discuss the

fact that the Government's "attempt to set up

a federal crime for which these defendants

stand convicted went beyond any proper prose-

cutorial role and needlessly injected the

Federal Government into a matter of state con-

cern." Id. at 674-78.

The decision in Archer (reversals of the

convictions with instructions to dismiss the

indictments) was, however, based "on another,

although not unrelated ground,” id at 678:

Our holding is . . . that when

Congress responded to the Attorney

General's request to lend the aid

of federal law enforcement to local

officials in the prosecution of

below--that the garbage collection indus-

try as a whole "was sufficiently related to

interstate commerce." See id.

With all respect, Petitioner submits that

this argument simply misses the mark. The

Hobbs Act, despite its broad language, clearly

requires proof of an interstate nexus of the

particular party extorted in each particular

case. It is not enough that the victim of

the extortion be a member of a class which,

as a class, affects or is affected by inter-

state commerce. See, e.g., United States v.

Staszcuk, 517 F.2d 53, 59 & n.16 (7th Cir.)

(Stephens, J.), cert. denied, 423 U.S. 837

(1975). And, even if this were enough,

which it surely is not, there is no evidence

in the case at bar that the Municipal Chemical

Corporation was in fact a member of such a

class.

certain crimes, primarily of local

concern, where the participants

were engaging in interstate activ-

ity, [CJongress did not mean to

include cases where the federal

officers themselves supplied the

interstate element and acted to

ensure that an interstate element

would be present.

Id. at 682.

In the case at bar, taking the facts in

the light most favorable to the government,

Glasser v. United States, 315 U.S. 60, 80

(1942), it is clear that "the federal

officers themselves supplied the interstate

element and acted to ensure that an inter-

state element would be present." In Hobbs

Act prosecutions, if the required interstate

nexus cannot be proved directly, it is

proved by linking the victim--the extorted

party--to interstate commerce. This, indeed,

was the Government's strategy in the instant

case. See, e.g., the jury instructions on

this issue. ( A. 29-30)

Petitioner strongly urges this court to

examine the following portions of the trial

court's instructions to the jury; the trial

court's reading of the indictment pertaining

to the Hobbs Act counts,(A.17-23), the trial

court's paraphrase of these counts, (A23-28)

the trial court's instructions on the method

whereby the jury was to determine the issue

of interstate commerce, (A,29-39) and

finally, the trial court's comments upon the

evidence,(A.30-31). These few pages contain,

to Petitioner's knowledge, the sum total of

the trial court's instructions on the sub-

ject of interstate commerce, and the trial

record itself, viewed through the filter of

these instructions, is insufficient, as a

matter of law, to prove any interstate nexus

save those slender threa deliberately

extablished by the Government's own under-

cover methods.

Petitioner is well aware of the burden-

some task involved in wading through 1500-

some pages of transcript in search of the

truth; still the sad fact remains that it is

impossible to point out a single sentence, or

paragraph, or page to support the fact that the

record, as a whole, is totally lacking in

evidence of any interstate connections other

than those few shreds created by the govern-

ment agents themselves. Nonetheless, the

record as a whole is clear; the Government

has tried to supply the element of interstate

commerce--the jurisdictional predicate and

substantive element of the crime--solely

through the actions of undercover FBI agents.

Petitioner strenuously urges this court

to take heed of Judge Friendly's admonition

in Archer that "[mJanufactured federal juris-

diction is even more offensive in criminal

than in civil proceedings." Petitioner fur-

ther asks this court to consider the con-

structive comparison with 28 U.S.C. § 1359

suggested by Judge Friendly. See, e.g.,

McSparran v. Weist, 402 F.2d 867, 8 3rd

Cir. ) (en banc), cert. denied, 395 U.S.

903 (1969) (manufactured federal jurisdiction

"is a reflection on the federal = sys-

tem and brings it into disrepute") Further-

more, this court has fully and explicitly

adopted the reasoning of the third circuit

in McSparran. See Lester v. McFaddon, 415

F.2d 1101, 1104 (4th Cir. 1969) (Haynsworth,

C.J.).

Petitioner also asks this court to

remember that, although some may question the

propriety of the Government's role in this

case, the issue here is not one of entrapment:

the question whether Petitioner was predisposed

to commit a crime is irrelevant. This is not a

case like United States v. Russell, 411 U.S.

423 (1973), where Government agents supplied

to the defendant a chemical "element" with-

out which he might have been unable to commit

the crime; rather, this is a case like Archer:

government agents, solely through their own

behavior, supplied to the court an element

without which there would have been no federal

jurisdiction and no federal crime.

Petitioner also asks this court to con-

sider the impact on our federalist system

were the practice of federal undercover agents'

manufacturing criminal jurisdiction to be given

the stamp of judicial approval. "Today there

is widespread concern whether the federal crim~

inal law has not outrun reasonable bounds.

486 F.29 at 677; see, e. United States v.

States, 488 F.2d 76I, (8th Cir. 1973)

(Ross, J., concurring), cert. denied, 417

U.S. 909 (1974). Professor Norman Abrams,

reporting to the National Commission on

Reform of Federal Criminal Laws, discussed

the "extreme" model whereby "all conduct that

is traditionally made criminal under State

law would constitute a violation of Federal

law." Speaking in his capacity as reporter

to the Commission he found such an "extreme"

unpalatable: "Plenary Federal criminal

jurisdication would carry with it general

Federal police power and a truly national

police force. The concomitant centralization

of law enforcement authority in Washington

would be clearly unacceptable." N. Abrams,

Consultant's Report on Jurisdiction, 1 Working

Papers of the National Commission on Reform

of Federal Criminal Laws 33, 35 (1970).

Although it “is clearly . . . unacceptable

that the federal government be given juris-

diction ever all violations of state criminal

law, already "'[fJederal auxiliary criminal

jurisdiction’ has spread to the point where

"[t]here is practically no offense within the

purview of local law that does not become a

Federal crime if some distinctive Federal

element happens to be present.’ 486 F.2d at

678 (quoting from N. Abrams, supra at 36)

(emphasis added). Petitioner submits that to

judicially countenance the federal prosecutor's

providing the “distinctive federal element"

solely through the actions of the Government's

own undercover agents is tantamount to giving

the federal prosecutor complete discretion to

exercise "clearly . . . unacceptable” extreme

of plenary criminal jurisdiction. That such

pleanary criminal jurisdiction could be

established even by Congress is open to con-

stitutional question, see, e.g., N. Abrams,

supra at 35; that it could be established

at the whim of a federal prosecutor seems

unthinkable.

This final point--the impact of the

decision in this case on the allocation of

power between the state and federal govern-

ments--is not to be lightly dismissed.

Petitioner submits that this case should be

considered in light of the clear trend towards

ensuring the states’ continued responsibility

for matters traditionally considered of pri-

marily state concern. See, e.g., National

League of Cities v. Usery, 4 U.S. 833

(1996) Kilberg & Fort, National League of

Cities v. Usery: Its Meaning and Impact, 45

Geo. Wash. L. Rev. 613, 632 11377) Uitational

League of Cities holds .. . that federal

power derived from the commerce clause is not

plenary, as was previously thought.")

Moreover, even when the accepted powers

of the federal government under the commerce

clause were at their zenith, the Hobbs Act

was never pushed to the hilt. See, e.g.,

United States v. Enmons, 410 U.S. 396 973).

The Act, if read literally and applied with

an expanded notion of "interstate commerce,"

see, e.g., Heart of Atlanta Motel v. United

States, 379 U.S. 241 (1564), would give the

federal courts criminal jurisdiction over

virtually every intrastate robbery and extor-

tion, a fact gleefully pointed out by a United

States Attorney commenting in the Seton Hall

Law Review. See, Stern, Prosecutions of

Local Political Corruption Under the Hobbs

Act: The Unnecessary Distinction Between

Bribery and Extortion, 3 Seton Hall L. Rev. l,

11-12 (1971). ‘This sort of expansive reading

of the Hobbs Act is meeting with more and

more judicial skepticism. See, e.g., United

States v. Yokley, 542 F.2d 300 (6th Cir.

1976), where Harry Phillips, Chief Judge of

the Sixth Circuit Court of Appeals, noted:

This [broad] interpretation and

application of §1951, as urged

by the Government, would encompass

literally any armed robbery occur-

ing in any state. Accordingly,

under the interstate commerce rule,

the robbery of a corner grocery

store, pharmacy, or gasoline ser-

vice station, without more, would

be a federal offense. The offense

of armed robbery, traditionally a

matter of concern under state

criminal laws, would become a

matter within the responsibilities

of the United States Attorneys and

the federal courts. The legisla-

tive history of the Hobbs Act and

its predecessor statute demonstrates

to our satisfaction that no such

sweeping result was intended by

Congress.

Id. at 305-05 (Phillips, C.J.).

The sixth circuit's opinion in Yokley

was recently followed by United States v.

Culbert, 548 F.2d 1355 (9th Cir. 1977) (per

curiam). The Ninth Circuit Court of Appeals,

in a per curiam opinion, praised the reason-

ing in Yokley and said:

[A] contrary interpretation of the

[Hobbs] Act would justify federal

usurpation of virtually the entire

criminal jurisdiction of the states.

Considerations of federalism, apart

from the legislative history also

emphasized in Yokley, cannot per-

mit a conclusion that Congress

intended to work such an extra-

ordinary and unprecedented en-

croachment into the realm of state

sovereignty.

548 F.2d at 1357

It is not without significance that the

ninth circuit, in Culbert, appears to have

overruled, albeit sub silentio, a line of

cases in which it had accorded the Hobbs Act

a considerably broader reach. See id. at

1358 (Carter, J., concurring and dissenting).

Similarly. the seventh circuit, which had

previously required less in the way of an

interstate commerce nexus to support a Hobbs

Act conviction then had any other circuit,

see, e.g., United States v. Kuta, 518 F.2d

947 (7th Cir.), cert. denied, 423 U.S. 1014

(1975); United States v. Staszcuk, 517 F.2d

(7th Cir.), cert. denied, 423 U.S. 837 (1975),

has “turned [its] back on the ‘expansive

interpretation to cover a wide range of

extortionate activity’ and [has] opted for

a narrow alley of jurisdictional footpaths."

United States v. Elders No. 77-1191, slip op.

at 12 (7th Cir. Feb. 1, 1978) (Bauer, J.,

dissenting). Recitation of the pertinent facts

in Elders would be lengthy; but it will suffice

for present purposes simply to note that the

interstate commerce connection in Elders was

more substantial than the connection in the

instant case even if it be assumed, arguendo,

that an undercover FBI Corporation can pro-

vide the interstate nexus required by the

Hobbs Act. Nonetheless, Elders' Hobbs Act

conviction was vacated.

A final example of what appears to be a

growing trend towards a more narrow view of the

jurisdictional reach of the Hobbs Act is

United States v. Merolla, 523 F.2d 51 (2nd.

Cir. 1975). In Merolla, the second circuit

Court of Appeals, w had previously required

quite little in the way of an interstate com-

merce connection in order to sustain a Hobbs

Act conviction, see, e.g. United States v.

Augello, 451 F.2d 116 2d Cir. 1971), reversed

the defendant's section 1951 convictions on

the ground that the extorted party's connec-

tion with interstate commerce "appeared to be

a one-shot deal," 523 F.2d at 55. Here again,

recitation of the pertinent facts would be

lengthy, but the circuit court opinion con-

tains evidence of several facts the existance

of which has, in earlier times, led courts to

hold, in Hobbs Act cases, that the interstate

commerce requirement had been satisfied.

In conclusion, Petitioner submits that

the "interstate commerce connections" proved

at trial in this case were, at most, minimal

and are, under the more enlightened view of

the jurisdictional reach of section 1951 now

emerging in the federal judicial circuits of

this country, insufficient as a matter of law

to establish federal criminal jurisdiction

under the Hobbs Act. Moreover, these minimal

"interstate commerce connections" were sup-

24 . A. l

plied solely through the actions of the sit 7 APPENDiX A

Government's own agents. Petitioner respect-

fully submits that, under these circumstances, : ; OPINION OF THE UNITED STATES COURT OF

his Hobbs Act convictions cannot stand. APPEALS FOR THE FOURTH CIRCUIT

CONCLUSION

No. 77-2006

Petitioner respectfully requests that

this Honorable Court grant the requested

Writ of Certiorari for the reasons discussed

above.

UNITED STATES OF AMERICA,

Respectfully submitted, Appellee,

Harold I. Glaser Vv.

Richard M. Karceski GEORGE JOSEPH SANTONI,

Saul Z. Reese Appellant.

Attorneys for Petitioner

No. 77-2007

UNITED STATES OF AMERICA,

Appellee,

Vv.

JOHN JAKE KONSTANTINE JAKUBIK,

Appellant.

, : Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Edward S. Northrop, District Judge.

Argued July 17, 1978 Decided October 19, 1978

Before BOREMAN and FIELD, Senior Circuit

Judges, and HALL, Circuit Judge.

FIELD, Senior Circuit Judge:

George Santoni and John Jakubik appeal

from their convictions under 18 U.S.C. § 1951

(Hobbs Act),1 following a joint jury trial.

1 18 U.S.C. § 1951 reads in pertinent part

as follows:

(a) Whoever in any way or degree ob-

structs, 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 com-

mits 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 -

x kk *

(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 com-

merce within the District of Columbia,

A. 3

The appellants were jointed under Rule 8(b)

of the Federal Rules of Criminal Procedure

and charged in a multicount indictment.

Santoni was charged with violating 18 U.S.C.

§ 1951 (extortion) and § 2 (aiding and abet-

ting) in Counts One through Four and with

violating 26 U.S.C. § 7206 (1) (tax evasion)

in Count Five; he was convicted on Counts

One through Four and acquitted on Count Five.

Jakubik was charged with violating 18 U.S.C.

§§ 1951 and 2 in Counts Two and Three; he

was convicted on Count Two and acquitted on

Count Three. Both Santoni and Jakubik appeal,

contending that there was an insufficient

nexus with interstate commerce to support a

conviction under the Hobbs Act. In addition,

Jakubik argues that (1) "property" was not

extorted within the meaning of the Hobbs Act,

(2) it was reversible error for the trial

court to deny his pre-trial motion for sev-

erance based on improper joinder under Rule

8(b), and (3) it was reversible error for the

trial court to deny his Rule 14 motion for

severance when only one day before the end of

their joint trial Santoni stated that he

would not take the witness stand.

This case centers around the federal

government's attempt to uncover in the city

of Baltimore a practice under which contrac-~

or any Territory or Possession of the

United States; all commerce between

any point in a State, Territory, Pos-

session, or the District of Columbia

and any point outside thereof; all com-

merce between points withing the same

State through any place outside such

State; and all other commerce over

which the United States has jurisdic-

tion.

A. 4

tors were required to kick back a percentage

of their contract fees to various officials

in exchange for assurances of future contracts

and the evasion of inspections during the per-

formance of their contracts. As a part of this

investigation, Municipal Chemical Corp. was

organized in February, 1975, with the finan-

cial support of the FBI, for the specific

purpose of obtaining evidence relative to

political kickbacks and extortion incident to

local government contracts in Baltimore.

Although the realization of profit was not a

primary goal of Municipal Chemical, the

corporation was designed to acquire and per-

form contracts in the field of chemical clean-

ing and building demolition while pursuing its

undercover activity. Salvatore Spinnato was

hired to work in cooperation with the FBI as

a paid consultant to Municipal Chemical, and

was the only person in the corporation famil-

iar with chemical cleaning. FBI agents Dudley

Hodgson and Ronald Miller acted as officers

of Municipal Chemical. During the period

covered by the indictment, appellant Santoni

was a member of the Maryland House of Delegates

and had been assisted in his election effort

by appellant Jakubik who was a building main-

tenance foreman for the city of Baltimore.

In May of 1975, Olympos Painting Co.

acquired a contract to clean two public schools

in the Baltimore area. Later in that spring

Spinnato informed Santoni, whom he had known

previously, that he was involved with Municipal

Chemical and that it had bid unsuccessfully on

the cleaning contract awarded to Olympos

Painting. Santoni informed Spinnato that he

could help Municipal Chemical but that it

would cost ten percent of all contract fees

plus an initiation fee of $3,000. Spinnato

paid Santoni the $3,000, and Santoni advised

him that he could obtain a subcontract for

Municipal Chemical from Olympos Painting.

A. 5

Jakubik arranged for a meeting between Santoni

and Konstantinos Nicolaidis, president of

Olympos Painting, at which meeting Santoni

was introduced by Jakubik, according to

Nicolaidis' testimony as "a state delegate

[who] can help you if you ever have a problem

* * *. And it is good to have a friend like

this * * * on account of [Santoni's] being

a politician and state delegate." At this

meeting Santoni requested that Olympos

Painting give Municipal Chemical a subcontract

to clean one of the two Baltimore schools, but

Nicolaidis was reluctant to enter into such

an arrangement.

At a subsequent meeting Santoni, Jakubik,

Spinnato, Hodgson, Miller and Nicolaidis dis-

cussed the possibility of a subcontract for

Municipal. After Nicolaidis refused Municipal

Chemical's offer to perform the work for

$32,000, according to Nicolaidis' testimony,

Jakubik reminded Nicolaidis “about he knowing

people, that they can help contractors, that

it's good to have these people as friends, and

sometimes you couldn't affort to have them

against you." During this same meeting,

Santoni informed Nicolaidis that there would

be no trouble with inspectors. Nicolaidis

subsequently agreed to award the subcontract

to Municipal Chemical at the price of $16,000

because, according to his testimony, " I

thought I was getting into or associating

with people that would be helping me in future

contracts." On July 21, 1975, after signing

and delivering the subcontract to Nicolaidis,

the principals of Municipal Chemical paid

Santoni $1,600 to cover the ten percent kick-

back fee.

In the performance of its subcontract,

Municipal Chemical used Hydron 300, a chemical

manufactured in Pennsylvania, as expressly

required by the original contract. In

A. 6

addition Municipal Chemical rented power

scaffolding and accessories from Sky-Climber,

Inc., of California. After completing its

work under the subcontract, Municipal Chemical

sold 55 gallons of Hydron 300 to Nicolaidis

for use by Olympos Painting in completion of

the contract.

About the time the school subcontract

was being completed, Santoni informed Spinnato

that it would cost Municipal Chemical $10,090

for his assistance in the acquisition of dem-

olition contracts, and agent Hodgson paid

Santoni the amount requested by him. In

February of 1976, approximately one year

after its formation, Municipal Chemical Corp.

was forced to terminate its operations because

Spinnato's undercover activity had been

revealed.

INTERSTATE COMMERCE

Counts One through Three were based upon

the chemical cleaning contract and subcontract

while Count Four involved the attempt to

acquire demolition contracts. With respect

to the chemical cleaning contract and sub-

contracts, appellants argue that (1) the

government created the only connection with

interstate commerce and thus manufactured the

jurisdictional requirement, and (2) Municipal

Chemical was only a "one shot deal" and thus

there was no real effect on interstate com-

merce as a result of appellant's activities.

We do not agree and conclude that the requis-

ite nexus with interstate commerce under the

Hobbs Act was established in Counts One

through Three.

Appellants contend that Municipal Chemical,

the government created corporation, provided

the only connection with interstate commerce

A. 7

by making purchased of Hydron 300 and renting

scaffolding, both of which were manufactured

out-of-state. They argue that the logical

extention of holding that the interstate com-

merce jurisdictional element was met in such

fashion would permit the government to assume

federal jurisdiction over purely state crim-

inal cases by manufacturing a nexus with

interstate commerce. In making this argument

the appellants rely strongly on United States

v. Archer, 486 F.2d 670 (2 Cir. 1973), which

involved 18 U.S.C. § 1952 (Travel Act), mak-

ing it a federal crime to use any facility

in interstate commerce to carry on an illegal

activity. In Archer the only connection with

interstate commerce consisted of interstate

phone calls initiated by a government agent

for the express purpose of creating jurisdic-

tion, with the exception of one transcontin-

ental call which the court discarded as "'a

casual and incidental occurrence.'" Id. at

682. The Second Circuit expressed its dis-

approval of the government's methods of

uncovering the illegal activity and its attempts

to create jurisdiction. While the conviction

was reversed, upon rehearing the court narrowed

its holding to those cases where the interstate.

commerce element "is furnished solely by

undercover agents." Id. at 685-86. The

Second Circuit's subsequent decision in United

States v. Gambino, 566 F.2d 414 (1977), appears

to further restrict Archer. In Gambino the

FBI had organized a sanitation collection com-

pany in an effort to uncover extortionate pres-

sure being place on similar companies by the

defendants. The only connection with inter-

state commerce was the government's out-of-

state purchases of equipment, and dumping of

garbage in New Jersey because of cheaper rates.

The court distinguished Archer by noting that

it involved the contrived use of interstate

facilities whereas in Gambino "the activities

of [the government corporation] were

A. 8

necessarily wedded to interstate commerce."

566 F.2d at 419 (emphasis added). In our

opinion the present case is distinguishable

from Archer and falls within the rationale

of Gambino since the contract with the city

required the use of Hydron 300. Regardless

of who performed the work on the two Baltimore

schools, interstate commerce would have been

involved in the cleaning process by this

required use of Hydron 300. In addition the

rented scaffolding, manufactured out-of-state,

was a necessary part of the cleaning process.

Appellants’ reliance on Archer is further

undercut by our decision in United States v.

LeFaivre, 507 F. 2d 1288 (4 Cir. 1974), cert.

denied, 420 U.S. 1004 (1975), where we con-

cluded that the interstate requisite of the

Travel Act is satisfied if there is "some

utilization of a facility in interstate com-

merce and it is not requisite that such use

be substantial or integral to the operation

of the illegal enterprise." id. at 1299.

Appellants further rely upon United

States v. Yokley, 542 F.2d 300 (6 Cir. 1976),

where the court place a restrictive construc-

tion upon the Hobbs Act, observing that the

government's interpretation of the statute

"would encompass literally any armed robbery

occurring in any state." Id. at 304. The

approach of the court in Yokley however, was

rejected in United States v. Culbert,

U.S. , 46 U.S.L.W. 4259 (March 28, 1978),

where the Supreme Court stated:

With regard to the concern about

disturbing the federal-state balance,

moreover, there is no question that

Congress intended to define as a

federal crime conduct that it knew

was punishable under state law.

The legislative debates are replete

with statements that the Hobbs Act

A. 9

was already punishable under state

robbery and extortion statutes.* * *

Our examination of the statutory

language and the legislative his-

tory of the Hobbs Act impels us

to the conclusion that Congress

intended to make criminal all con-

duct within the reach of the statu-

tory language.

Id. at 4261. The fact that the present con-

victions may also constitute state criminal

offenses is thus immaterial for our purposes

provided that there was a sufficient nexus

with interstate commerce to satisfy the

Hobbs Act.

The appellants contend that Municipal

Chemical was a "one-shot deal" and, accord-

ingly, there was no effect on interstate com-

merce. In making this argument they rely

primarily upon United States v. Merolla, 523

F.2d 51 (2 Cir. 1975), and United States v.

Elders, 569 F.2d 1020 (7 Cix. 1978). In our

Opinion, however, the continuing nature of

Municipal Chemical's activity and its use of

material which necessarily traveled in inter-

state commerce is sufficient to distinguish

the present case from those cited by appel-

lants. Of further significance on this point

is the fact that Municipal Chemical had no

intention of ceasing operations following

performance of the cleaning contract, and it

was only when Spinnato's undercover activity

had been revealed that it terminated its

operations.

Santoni also challenges Count Four,

contending that the government failed to offer

any evidence of interstate transactions con-

nected with the proposed demolition contract.

In our opinion, however, Santoni's argument

A. 10

- on this point is answered by our decision in

United States v. Spagnolo, 546 F.2d 1117 (4

Cir. 1976) (per curiam), cert. denied, 433 U.S.

909 (1977), where we elected to place a broad

construction upon the Hobbs Act, stating "all

that is required to bring an extortion within

the statute is proof of a reasonably probable

effect on commerce, however minimal, as a

result of the extortion." Id. at 1119. The

defendants in Spagnoto had forced the victim,

under threat of physical harm, to execute a

sale of his interest in a construction firm

which received most of its materials through

interstate commerce and, additionally, required

him to pay to the defendants the sum of $1,500.

We noted that the withdrawal of the victim was

reasonable calculated to reduce the funds nec-

essary to purchase materials in interstate

commerce, and that the defendants' conduct in

forcing him to sell his interest in the firm

satisfied the interstate commerce requirements.

In our opinion Santoni's conduct in

extorting $10,000 from Municipal Chemical with

respect to the demolition contracts parallels

that of the defendants in Spagnolo. In each

instance, interstate commerce was affected by

the extortion of funds which otherwise might

reasonably have been expected to be channeled

into the purchase of material in interstate

commerce.

PROPERTY

Jakubik urges upon us that his conviction

under Count Two cannot stand because "property"

was not extorted within the meaning of the

Hobbs Act. He argues that the property alleged

to have been extorted was the subcontract,

and that in the absence of benefit to the

extortionist the Hobbs Act requires some loss

to the victim; that since the subcontract was

entered into for valuable consideration, there

A. ll

was no loss to Olympos Painting.

Extortion under the Hobbs Act does not

require a direct benefit to the extortionist,

United States v. Green, 350 U.S. 415, 420

(1556); “Ttyhe gravamen of the offense is

loss to the victim," United States v.

Frazier, 560 F.2d 884, 887 (8 Cir. 1577) and

such loss includes intangible as well as

tangible property. United States v. Nadaline,

471 F.2d 340, 344 (5 Cir. 1973), cert. denied,

411 U.S. 951 (1973); United States v. Tropiano,

418 F.2d 1069, 1075-76 (2 Cir. 1969), cert.

denied, 397 U.S. 1021 (1970). In Tropiano

the defendants were partners in a refuse

removal company known as C & A. When Caron

Refuse Removal, Inc., replaced C & A in ser-

vicing some of C & A's customers, the defend-

ants by threats of violence forced Caron

Refuse to cease further attempts to acquire

C & A's customers and to consent not to solic-

it any more business in that area. The Second

Circuit held that the property extorted was

the right of Caron Refuse to solicit business

free of territorial restrictions wrongfully

imposed by its competitors. 418 F.2d at 1076.

We agree with the government that here, as in

Tropiano, the property extorted was the right

of Olympos to make a business decision free

from outside pressure wrongfully imposed, and

this is sufficient to sustain the convictions

on Count Two.

PRE-TRIAL MOTION FOR SEVERENCE

Jakubik contends that under the standards

set forth in Rule 8(b) of the Federal Rules

of Criminal Procedure, 2 he and Santoni were

Fed. R. Crim. P. 8(b) provides:

A. 12

improperly joined in the indictment. If the

defendants were improperly joined under Rule

8(b), severance was, of course, mandatory and

not a matter of discretion with the trial

court. United States v. Marionneaux, 514

F.2d 1244, Cir. 1975); Ingram v.

United States, 272 F.2d 567, 569-70 (4 Cir.

1959); 8 Moore's Federal Practice 48.04 [2]

(2d ed. 1977). On the other hand, if joinder

was proper the trial court was permitted to

exercise its discretion in determining whether

or not to proceed with a joint trial. Ingram

v. United States, supra, at 569-70; see United

States v. Whitehead, 539 F.2d 1023 (4 Cir.

1976). The test for joinder under Rule 8(b)

is whether the defendants "are alleged to

have participated in the same act or trans-

action or in the same series of acts or trans-

actions." Where the defendants' acts are part

of a series of acts or transactions, it is not

necessary that each defendant be charged in

each count, nor to show that each defendant

participated in every act or transaction in

the series. United States v. Scott, 413 F.2d

932, 934-35 (7 Cir. 1969), cert. denied, 396

U.S. 1006 (1970); 1 C. Wright, Federal Practice

and Procedure § 144, at 324 (1969). Although

"series of acts or transactions" is not defined

(b) Joinder of Defendants. Two or

more defendants may be charged in the

same indictment or information if they

are alleged to have participated in

the same act or transaction or in the

same series of acts or transactions

constituting an offense or offenses.

Such defendants may be charged in one

or more counts together or separately

and all of the defendants need not be

charged in each count.

A. 13

in the Rule, such phrase logically includes

those transactions so interconnected in time,

place and manner as to constitute a common

scheme or plan. United States v. Jackson,

562 F.2d 789, 796 (D.C. Cir. 1977); United

States v. Tcott, supra. The series of acts

engaged in by Santoni and Jakubik constituted

a scheme or plan of extortions through the

wrongful use of fear of financial injury and

under color of official right. Although

Jakubik was not charged in Count Four rela-

tive to the demolition contract, it is clear

that the charge under Count Fourt was part

of the series of extortions involving the

officers of Municipal Chemical and engaged

in by Jakubik and Santoni. Count Five involved

a charge against Santoni of tax evasion due

to his failure to report the income extorted

from Municipal Chemical. Thus it, too, was

part of the series of acts engaged in by the

defendants since such evasion was necessary

to conceal the extortionate activity.

Accordingly, joinder was proper, and the

trial court did not err in proceeding with

the joint trial of Santoni and Jakubik.

RULE 14 MOTION FOR SEVERANCE

Near the end of their joint trial Santoni

indicated for the first time that he would

exercise his Fifth Amendment privilege not

to testify. After being apprised of Santoni's

intention, Jakubik moved for a severance pur-

suant to Rule 14 of the Federal Rules of

Criminal Procedure.3 Jakubik contends that

7 Fed. R. Crim. P. 14 provides:

If it appears that a defendant or the

government is prejudiced by a joinder

of offenses or of defendants in an

A. 14

he expected Santoni to testify in their

joint trial because counsel for Santoni so

indicated during his opening statement.

Incident to his motion, Jakubik proffered

that if he was granted a severance, Santoni

would testify in Jakubik's separate trial

that (1) Jakubik's involvement in the extor-

tion was purely a political favor to Santoni;

(2) Jakubik exaggerated his political impor-

tance;(3) Jakubik received none of the money

which passed from Municipal Chemical to

Santoni; (4) Jakubik never threatened. anyone

nor engaged in any effort to extort anything;

and (5) Jakubik had no knowledge of the

extortionate activity. Santoni's counsel

agreed that Jakubik's proffer accurately

reflected what Santoni would testify to in

a separate trial.

The grant or denial of a motion for

severance under Rule 14 lies within the sound

discretion of the trial court and its action

on such a motion will be overturned only

when there has been a clear abuse of such

discretion. United States v. Gay, 567 F.2d

916, 919 (9 Cir. 1978); United States v.

indictment or information or by such

joinder for trial together, the court

may order an election or separate trials

of counts, grant a severance of defendants

or provide whatever other relief justice

requires. In ruling on a motion by a

defendant for severance the court may

order the attorney for the government to

deliver to the court for inspection in

camera any statements or confessions made

by the defendants which the government

eC ge to introduce in evidence at the

trial.

A. 15

Jamar, 561 F.2d 1103, 1106 (4 Cir. 1977).

The trial court must weigh the inconvenience

and expense to the government and witnesses of

separate trials against the prejudice to the

defendants inherent in a joint trial, and its

determination will not be disturbed unless the

denial of a severance deprives the movant a

fair trial and results in a miscarriage of

justice. United States v. Walsh, 544 F.2d

156, 160 (4 Cir. 1976), cert. denied, 429

U.S. 1093 (1977); United States v. Frazier,

394 F. 2d 258, 260 (4 Cir. 1968), cert.

denied, 393 U.S. 984 (1968). The movant must

show something more than merely a better

chance of acquittal and "must overcome the

burden imposed by a stringent standard of

review." United States v. Jamar, supra, at

1106.

Jakubik relies principally upon our

decision in United States v. Shuford, 454

F.2d 772 (4 Cir. 1971). In that case, how-

ever, the testimony of his co-defendant was

crucial to Shuford's defense and was unavail-

able from any other source. In holding that

a severance should have been granted, we

recognized the unique factual setting of the

case, stating:

We reach this conclusion, aware of

the vital importance of Jordan's testi-

mony to Shuford's defense, and in light

of the substantial expectation that

Jordan, if severance were granted, would

indeed testify as indicated. We empha-

size that our approach in this case

does not mandate a severance in every

situation where one defendant desires

the testimony of another. We hold only,

on the specific facts of this case, that

Jordan's testimony took on unusual

importance for Shuford's defense; that

this testimony could become available

A. 16

only be severance; and that in these

circumstances it was reversible error

to deny Shuford's motion.

(Footnote omitted).

Id at 779. The factual setting which sup-

ported the motion in Shuford differs signifi-

cantly from Jakubik's case for Santoni's

proffered testimony lacks the degree of ex-

culpation which was present in Shuford.

Testimony that Jakubik's involvement was

purely political and that he exaggerated his

political importance had no bearing upon the

Hobbs Act violation, and the other items in

the proffer were largely conclusory and had

less than a pivotal bearing upon Jakubik's

guilt or innocence. Under these circum-

stances, we cannot say that the trial court

abused its discretion or that Jakubik was

denied a fair trial by the denial of his

motion.

The judgments of conviction are affirmed.

AFFIRM” ED

ee =

A. 17

APPENDIX B

APPENDIX TO PETITIONER'S BRIEF

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

electronic recordings introduced’ in evidence

in this trial were obtained legally, and you

are not to consider the question of how those

recordings were obtained.

Now, a paper containing the formal

accusations against the defendants has been

drawn up in this case. It is called an

indictment. The indictment, while it tells

what the defendants are accused of, is not

evidence against them. To judge the evidence,

however, you need to know what the Government

is trying to prove. Therefore, I am going to

read the pertinent parts of the indictment

and instruct you on the law applicable to the

statutory sections set forth in the indict-

ment.

You will note that the indictment charges

that the offense was committed on or about a

certain date. It is not necessary that the

proof establish with certainty the exact

date of the alleged offense. It is sufficient

that the evidence shows beyond a reasonable

doubt that the offense was committed on a

date reasonably near to the date alleged.

I'm going to read the indictment, and,

as I say, that is what the Government would

prove in the case and I am going to let you

take the copy of the indictment, of course,

to the Jury room with you.

The Grand Jury for the District of

Maryland charges:

A. 18

1. At all times hereinafter mentioned

the City of Baltimore, Maryland, has, from

time to time, awarded contracts for the

construction of public projects including

demolition of publicly-owned buildings and

maintenance of publicly-owned buildings,

which projects were and are dependent for

completion upon commerce, as that term is

defined in Section 1951 of Title 18, United

States Code, for materials, equipment, sup-

plies, labor and professional services.

2. At all times hereinafter mentioned

the Municipal Chemical Corporation, 4620

York Road, Baltimore, Maryland 21210, was a

corporation formed under the general laws of

the State of Maryland.

3. At all times hereinafter mentioned

the aforesaid Municipal Chemical Corporation

had as its president one Douglas Bennett

Hollier, a name adopted for the purpose of

concealing that person's true identity as a

Special agent of the Federal Bureau of

Investigation, Baltimore, Maryland.

4. At all times hereinafter mentioned

the aforegoing Municipal Chemical Corpora-

tion had as an employee, one Ron Marco, a

name adopted for the purpose of concealing

that person's true identity as a Special

agent of the Federal Bureau of Investigation,

Baltimore, Maryland.

5. At all times hereinafter mentioned,

George Joseph Santoni was a public official

of the State of Maryland; to wit, a member

of the House of Delegates of the Maryland

General Assembly; and, for part of the time

hereinafter mentioned, was a public official

of the City of Maryland. Of the what? Of

the City of Maryland? City of Baltimore, I

guess, isn't it?

A. 19

MR. FAIRBANKS: Yes, Your Honor.

THE COURT: To wit, -- what it says is

City of Maryland; to wit, a Utility Aid in

the Department of Public Works, Bureau of

Construction Management, Division of Utility

Construction, City of Baltimore.

6. At all times hereinafter mentioned

in this count the aforesaid Municipal Chemical

Corporation was attempting to obtain contracts

from the City of Baltimore for the chemical

cleaning of brick, stone work and masonry on

City owned buildings. For the purpose of

preparing to perform and performing the chem-

ical cleaning, the Municipal Chemical Corpor-

ation intended to move and did cause to be

moved articles, commodities, men, materials,

supplies and machinery in interstate commerce

between various states of the United States,

and the State of Maryland, and more particu-

larly, from the outside the State of Maryland

to the City of Baltimore within the State of

Maryland.

7. On or about June 26, 1975, in the

State and District of Maryland,

GEORGE JOSEPH SANTONI

the defendant herein, knowingly, willfully

and feloniously did obstruct, delay and affect

commerce, as the term commerce is defined in

Section 1951 of Title 18, United States Code,

and the movement of persons, articles and

commodities in commerce by extortion, as

that term is defined in Section 1951 of

Title 18, United States Code, in that, on or

about the date specified in this count, and

this is the first count, the defendant,

George Joseph Santoni, did obtain approximately

$3,000.00 in United States Currency from the

Municipal Chemical Corporation and from its

A. 20

officers, owners and agents, with the consent

of the said Municipal Chemical Corporation

and its officers, owner and agents, said con-

sent having been induced by George Joseph

Santoni both by the wrongful use of fear of

financial, economic and physical injury, and,

under color of official right.

COUNT TWO

And the Grand Jury for the District of

Maryland further charges:

1. The allegations contained in para-

graphs one, two, three, four, five and six

of Count One are incorporated by reference

herein as though fully set forth in this

count, and those I think you will remember

as you look at them were the ones describing

Baltimore and the Chemical Corporation and so

forth which you can see when you look it over.

2. At all times hereinafter mentioned,

the defendant, John Jake Konstantine Jakubik

was a public official in the City of Baltimore,

to wit, building maintenance general foreman,

Department of Education, City of Baltimore.

3. At all times hereinafter mentioned,

the Olympos Painting Company, 123 South

Clinton Street, Baltimore, Maryland, was a

corporation organized under the general laws

of the State of Maryland, and was the low

bidder on Baltimore City Contract number

BP32275 to perform certain work on school

building 87 in the City of Baltimore.

4. At all times hereinafter mentioned

in this count, Konstantinos Nicolaidis was

the president of the Olympos Painting Com-

pany.

5. On or about July 21, 1975, in the

da ac te

A. 21

State and District of Maryland, and elsewhere,

George Joseph Santoni and John Jake Konstantine

Jakubik did knowingly, willfully and feloni-

ously obstruct, delay and affect commerce as

the term commerce is defined in Section 1951

of Title 18, United States Code, and the

movement of persons, articles, and commodities

in such commerce, by extortion, as that term

is defined in Section 1951 of Title 18, United

States Code, in that, on or about the date

specified in this count, the defendants,

George Joseph Santoni and John Jake Konstantine

Jakvubik did obtain for the aforesaid Municipal

Chemical Corporation a subcontract to perform

certain work on the project mentioned in par-

agraph three of this count, from the Olympos

Painting Company, and its president,

Konstantinos Nicolaidis, with the consent of

said company and its president and said con-

sent having been induced by the defendants,

George Joseph Santoni and John Jake Konstantine

Jakubik, both by the wrongful use of fear of

financial, economic and physical injury, and

under color of official right.

COUNT THREE

And the Grand Jury for the District of

Maryland further charges:

1. The allegations contained in par-

agraphs one through six of count one, and

paragraph two of count two, of this indict-

ment are incorporated by reference herein as

though fully set forth in the count.

2. On or about July 21, 1975, in the

State and District of Maryland, George

Joseph Santoni and John Jake Konstantine

Jakubik, the defendants herein, knowingly,

willfully and feloniously obstruct, delay

and affect commerce, as the term commerce is

defined in Section 1951 of Title 18, United

A. 22

States Code, and the movement of persons,

articles and commodities in such commerce,

by extortion, as that term is defined in

Section 1951, Title 18, United States Code,

in that, on that date specified in this

count, the defendants George Joseph Santoni

and John Jake Konstantine Jakubik did obtain

approximately $1,600.00 in United States

Currency from the Municipal Chemical Corpor-

ation and from its officers, owners and agents,

with the consent of the said Municipal Chemical

Corporation and its officers, owners and

agents, said consent having been induced by

George Joseph Santoni and John Jake Konstantine

Jakubik both by the wrongful use of fear of

financial, economic, and physical injury,

and under color of official right.

COUNT FOUR

And the Grand Jury for the District of

Maryland further charges:

1. The allegations contained in para-

graphs one through six of count one are

incorporated by reference herein as though

fully set forth in this count.

2. At all times hereinafter mentioned

in this count, the aforesaid Municipal

Chemical Corporation, in addition to attempt-

ing to obtain contracts from the City of

Baltimore for the chemical cleaning of brick,

stone work and masonry on City-owned build-

ings, was also attempting to obtain contracts

from the City of Baltimore for the demolition

of City-owned buildings, which demolition work,

if obtained, would have caused Municipal

Chemical Corporation to move articles, com-

modities, men, materials, supplies and machin-

ery in interstate commerce between various

States of the United States and the State of

Maryland, and more particularly from outside

ire

A. 23

the State of Maryland to the City of Baltimore,

within the State of Maryland.

3. On or about October 31, 1975, in the

State and District of Maryland, George Joseph

Santoni, the defendant herein, knowingly,

willfully and feloniously did obstruct, delay

_ and affect commerce as the term commerce is

defined in Section 1951 of Title 18, United

States Code, and the movement of persons,

articles and commodities in such commerce,

by extortion, as that term is defined in

Section 1951 of Title 18, United States Code,

in that, on or about the date specified in

this count, the defendant, George Joseph

Santoni did obtain approximately $10,000.00

in United States Currency from the Municipal

Chemical Corporation and from its officers,

owners and agents, with the consent of the

said Municipal Chemical Corporation and its

officers, owners and agents, said consent

having been induced by George Joseph Santoni

both by the wrongful use of financial, econ-

omic and physical injury and under color of

official right.

Now, count five, I'm going to pass over

for a minute, and I'll come back to that when

I get through the various elements of the

crimes that I have described, namely, what is

commonly known as the Hobbs Act, and it refers

to extortion in connection with goods moving

in interstate commerce, so make sure that I

do that, gentlemen.

All right. The defendant Santoni is

charged with extortion in Counts one, two,

three and four of the indictment.

Defendant Jakubik is charged with extor-

tion in counts two and three of the indict-

ment.

A. 24

Now, the particular statute which this

indictment refers to is known as Title 18,

U. S. Code, Annotated, Section 195l1(b) and

(2), defines extortion as follows:

The term extortion means the obtaining

of property of another, with his consent,

induced by wrongful use of actual or threat-

ened force, violence or fear, under color of

official right.

The term fear does not necessarily refer

to physical fear or fear of violence. It

includes fear of economic loss.

The term under color of official right

means a wrongful taking by a public official

of money not due him, or his office.

A violation of the extortion statute may

occur either by wrongful use of fear of vio-

lence, or fear of economic loss or under color

of official right.

Counts one, two, three and four of the

indictment charge an offense in violation of

the Hobbs Act, as I have mentioned, Title 18,

U.S.C., Section 1951. Count one charges

that Mr. Santoni, on or about June 26, 1975,

while he was then a public official of the

State of Maryland, obtained approximately

$3,000.00 in United States currency from the

Municipal Chemical Corporation and its officers,

by the wrongful use of fear of financial and

physical harm, and, under color of official

right. Count one also charges that the acts

of defendant Santoni obstructed, delayed

and affected commerce in that the Municipal

Chemical Corporation was attempting to obtain

contracts from the City of Baltimore for the

chemical cleaning of brick, stone work and

masonry on City-owned buildings and, for the

purpose of preparing to perform and perform-

A. 25

ing said acts, intended to move and did cause

to be moved articles, commodities, men, mater-

ials, supplies and machinery in interstate

commerce.

Count two charges that Mr. Santoni and

Mr. Jakubik on or about July 21, 1975, while

they were both public officials, extorted a

subcontract to perform certain work on a

City job from Konstantinos Nicolaidis and

the Olympos Painting Company by the wrongful

use of fear of financial and physical injury

and under color of official right.

Count two also charges that the acts of

the defendants delayed, obstructed and

affected interstate commerce in that the con-

tract involved maintenance of publicly-owned

buildings which were dependent for completion

upon commerce and that the subcontract was

to be given to the Municipal Chemical Corpor-

ation which intended to move and did cause to

be moved articles, commodities, men, materials,

supplies and machinery in interstate commerce.

Count three of the indictment is similar

to count one, except that Mr. Jakubik is

charged along with Mr. Santoni with obtaining

approximately $1,600.00 from the Municipal

Chemical Corporation and its officers, owners,

and agents by the wrongful use of fear of

financial, economic ane physical injury and

under color of official right.

Count four involves the same charges,

but against Mr. Santoni alone. He is charged

with obtaining approximately $10,000.00 from

the Municipal Chemical Corporation and its

officers, owner and agents by the wrongful

use of fear of financial, economic and

physical injury, and under color of official

right. It also makes the same allegations

concerning interstate commerce as counts one

through three.

Section 1951 says too, again, interfer-

ence with commerce by threats or violence,

and I am reading and quoting from the Statute,

(a) whoever in any way or degree obstructs,

delays or affects commerce or the movement of

any article or commodity in commerce, by

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 violence of

this section shall by guilty of an offense

against the United States.

Now, in addition, the term extortion, I

think I read it to you, but I will read it to

you again. It's known as Title 18, U.S.C.,

Section 1951 (b)(2). (b) as used in this

section, and then it says, 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.

In order to establish the offense of

extortion charged in the indictment, the

Government must prove three essential ele-

ments.

First, that the defendant induced his

victims to part with property;

Two, he did so by extortion as defined

in these instructions;

Three, that in doing so, interstate

commerce was delayed, interrupted or adversely

affected.

The Government is required to extablish

each of these elements beyond a reasonable

doubt. The law never imposes on the defend-

ant in a criminal case the burden of intro-

ducing any evidence or of calling any witnesses.

A. 27

A separate crime or offense is charged

in each count of the indictment. I think you

all sat on.a case before and you know that,

but in any event, counts two and three charge

both defendant Santoni and Jakubik with extor-

tion, while counts one and four charge Mr.

Santoni alone with the extortion and count

five charges a tax on against Mr.

Santoni alone.

Each offense, and the evidence pertain-

ing to it, should be considered separately.

The fact that you may find one or both of the

accused guilty or not guilty of one of the

offenses charged should not control your ver-

dict as to any other offense charged against

either of the defendants.

Count two of the indictment charges that

the defendants Santoni and Jakubik extorted

a subcontract from Olympos Painting Company

for the benefit of Municipal Chemical Cor-

poration. This count does not allege that

either Mr. Santoni or Mr. Jakubik derived any

direct personal benefit therefrom; further,

even though you may find from the evidence in

the case that Mr. Jakubik received none of the

$1,600.00 paid on July 21, 1975 at Smitty's

Restaurant, you are instructed that the fact

that a defendant received no personal benefit

from extortionate acts is not determinative

of his guilt or innocence with regard to

those acts.

One need receive no personal benefit to

be guilty of extortion; the gravamen of the

offense is loss to the victim.

Interstate commerce may be adversely

affected, within the meaning of these instruc-

A. 28

tions, by an increase in the cost of doing

business in interstate commerce, or by the

reduction of the profits from interstate

business. It is not necessary to show an

actual interruption or delay.

The victim's state of mind is an essen-

tial element of defense. Therefore, agent

Hodgson's and agent Miller's state of mind

must be considered by you, the Jury, in

respect to economic fear, mental fear, or

physical.

The term fear as used in the statute has

the commonly accepted meaning. It is a state

of anxious concern, alarm, apprehension or

anticipated harm to a business or of a

threatened loss, or apprehension of anticipa-

ted harm to one's person. The term thus

includes both physical fear or fear of econ-

omic harm.

Extortion under color of official right

is the wrongful taking by a public officer

of money not due him or his office, whether

or not the taking was accomplished by force,

threats, or use of fear. You will note that

extortion as defined by Federal law is com-

mitted when property is obtained by consent

of the victim by wrongful use of fear, or

when it is obtained under color of official

right, and in either instance, the offense

of extortion is committed.

It is not necessary that a public official

who exacts a payment for an apparent consid-

eration of securing favorable official action

have the power to effect such action. It is

only necessary that the victim reasonably

believes that the official has that power.

Unless the payments here alleged were

made under some form of compulsion, or

A. 29

because of defendants', or one of their

public offices, there is no violation of the

extortion statute within the charges set out

in the indictment.

As stated before, the Government must

show beyond a reasonable doubt that inter-

state commerce was delayed, interrupted, or

adversely affected by the acts charged in

the indictment. I am not going to give you

an abstract definition of interstate commerce.

I instruct you, instead, that you may find

interstate commerce within the meaning of

these instructions, if you find beyond a

reasonable doubt either:

1. That in obtaining and attempting to

obtain contracts from the City of Baltimore

and others for the chemical cleaning of

buildings, the Municipal Chemical Corporation

intended to move and did cause to be moved

certain articles, commodities, men, materials,

supplies and machinery in interstate commerce

from the State of Maryland to outside the

State and vice-versa.

2. That in obtaining and attempting to

obtain contracts from the City of Baltimore

and others for the chemical cleaning of

buildings and the Olympos Painting Company

intended to move and did cause to be moved

certain articles, commodities, men, materials

and supplies and machinery in interstate com-

merce from the State of Maryland to outside

the State and vice-versa.

3. That in attempting to obtain demoli-

tion contracts from the City of Baltimore,

the Municipal Chemical Corporation contem-

plated the movement of articles, commodities,

men, supplies, and machinery and materials

in interstate commerce from outside the

State of Maryland to within the State and

A. 30

vice-versa.

I charge you, as a matter of law, that

as a matter of each company alleged to have

been extorted, that is in counts one, three

and four, the Municipal Chemical Corporation

and, count two, the Olympos Painting Contract-

ing Company, if you find credible, beyond a

reasonable doubt, any of the testimony and

documents which the Government has intro-

duced into evidence with respect to any one

transaction relating to the jurisdictional

element of interstate commerce involved in

this case, that is to say, as to each such

company, if you find that any one transaction

has been proven beyond a reasonable doubt

with respect to that company's involvement

with interstate commerce, then you are instruct-

ed that, as to those counts of the indict-

ment which relate to that company, the

activity involved in this case did delay,

obstruct and affect commerce, as that language

is used in the statute under which those

counts have been brought.

In other words, your responsibility as to

the interstate elements is only to determine,

as to each company, whether or not any such

transaction has been proven beyond a reason-

able doubt. This Court has determined, as a

matter of law, that any one such transaction,

if proven, as to each company, constitutes a

sufficient effect on interstate commerce

within the meaning of the law; that question

is not for your determination. Now, I'm

going to comment on the evidence. The

evidence, there was evidence and there were

some invoices which indicated the Hydron-300

came from Pennsylvania. I thin there were

three, were three, were there not, three

invoices.

MR. MARTIN: Yes, sir.

A. 31

MR. FAIRBANKS: Yes, Your Honor.

THE COURT: Of course, before you can

find the defendants guilty on any count of

the indictment charging them with violating

the Hobbs Act, which is section 195l, that

we've been talking about, you must find that

all other elements of the crime, as to each

count, as I will explain to you, have also

been proven beyond a reasonable doubt.

It is not necessary for the Government

to show that the defendant intended to

specifically obstruct, delay or affect inter-

state commerce. All that is necessary as to

this issue is that the Government's evidence

prove that the defendant intended to commit

an act prescribed by the statute, the natural

consequences of which would be to obstruct,

delay or affect commerce.

Intent and motive should never be con-

fused. Motive is what prompts a person to

act, and intent refers only to the state of

mind with which the act is done. Good

motive alone is never a defense where the

act done is a crime, for the motive of the

accused is immaterial except insofar as

evidence of motives may aid determination of

state of mind or intent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.