Petition — Cerilli v. United States
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Supreme Court, US 4 |
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AUG 15 1979 |
— MICHAR AODAK, JR., CLERK
Supreme Court of the United States
OcroseR TERM, 1979
* €9-248
EGIDIO CERILLI, MAYLAN YACKOVICH, JOHN SHURINA
and RALPH BUFFONE,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
JOHN ROGERS CARROLL,
PETER GOLDBERGER,
Attorneys for Petitioners,
CARROLL CREAMER CARROLL
& DUFFY,
Suite 326,
Three Penn Center Plaza,
Philadelphia, Pennsylvania 19102
(215) 568-5200
Pennsylvania Appellate Printing Co.—Call Toll Free—! (800) 526-7560
TABLE OF CONTENTS
ee eng scien ecw cane 1
EE 2
pemmenms Peeeemied ............................. 2
MI cs. es see ee cee eee. 3
ee 5
REASONS FOR GRANTING THE WRIT:
I: The decision below construes the Hobbs Act in a
manner inconsistent with this Court’s “Enmons”
decision and the Act’s legislative history, and in
a way which makes a federal crime of accepted
political activity in the States .................. 8
a) The meaning of extortion “under color of of-
Se 8
b) The requirement of “wrongful” purpose .... 11
c) The meaning of “fear” .................. 13
II: The decision below would remove all jurisdictional
barriers to complete federalization of the law of
robbery and extortion ....................... 14,
EE 17
APPENDIX
ApPENDIx A—Court of Appeals Decision ........... Al
APPENDIx B—Order Denying Rehearing Pt A42
TABLE OF CONTENTS
Cases CITED:
Buckley v. Valeo,
canine at, ) 12
Edwards v. South Carolina,
372 U.S. 229 (1963) ........................ 12
Maryland v. Wirtz,
ous US. 1835 (1068) .......3................. 16
National League of Cities v. Usery,
426 U.S. 833 CU eee eo ies nev 12
Noto v. United States,
Oe ei... .............. 6
Sandstrom v. Montana,
— U5. — (June 16,1070) .................... 16
Stirone v. United States,
361 U.S. 212 | ae 10, 15
United Bhd. of Carpenters v. United States,
330 U.S. 395 WOE oh Dk ge Se beech ec e che 16
United States v. Bass,
404 U.S. 336 (1971) ........................ 12
United States v. Callahan,
551 F.2d 733 (6th Cir. 1977) ................ 13
United States v. Cerilli,
418 F. Supp. 557 (W.D.Pa. 1976);
428 F. Supp. 801 (W.D.Pa. 1977), aff'd, 558 F.2d
697 (3d Cir.), cert. denied, 434 U.S. 966 (1977) 2
United States v. Culbert,
US ie 10
TABLE OF CONTENTS
Cases Crrep:
United States v. Dellinger,
472 F.2d 340 (7th Cir. 1972), cert. denied,
400 US. WO (1079) ©... 5. eee cewek... 12
United States v. Enmons,
410 US. 306 (1973) ................. 10, 11, 16
United States v. Green,
me Wha, BO CRUE) wok cv ccc ccc cncccce 10, 11
United States v. Mazzei,
521 F.2d 639 (3d Cir.) (in banc), cert. denied,
ee We Be CO) ook neve nc cwcuces 8, 10, 15
STATUTES CITED:
18 U.S.C. §1951, the Hobbs Act ............. passim
| eh st 2
New York Penal Law $§850-855 (1909) ........ 3, 4, 8
AUTHORITIES CITED:
W. LaFave & A. Scott, Handbook on Criminal Law
Sos ET eT ee rs eee 9-10
Ruff, Federal Prosecution of Local Corruption,
65 Geo. L.J. 1171 (1977) .................... 9
IN THE
SUPREME COURT OF THE UNITED STATES
OcToBER TERM, 1979
No.
EGIDIO CERILLI, MAYLAN YACKOVICH,
JOHN SHURINA, and RALPH BUFFONE,
Petitioners,
vS.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
Egidio Cerilli, Maylan Yackovich, John Shurina, and
Ralph Buffone respectfully petition this Court to issue a
writ of certiorari to review the judgment and opinion of the
United States Court of Appeals for the Third Circuit entered
in this proceeding on June 29, 1979.
OPINIONS BELOW
The opinion of the court of appeals is not yet published.
A copy of the court’s opinion is attached as Appendix A.
By order dated July 23, 1979, the court of appeals denied
a petition for rehearing. Appendix B. The trial court wrote
no opinion.
bo
Opinions Below
Opinions concerning earlier stages of this case are
published at 418 F. Supp. 557 (W.D.Pa. 1976); 428 F.
Supp. 801 (W.D.Pa. 1977), affd 558 F.2d 697 (3d Cir. ),
cert. denied, 434 U.S. 966 (1977).
JURISDICTION
The judgment of the Court of Appeals for the Third
Circuit entered June 29, 1979. A timely petition for rehear-
ing was denied on July 23, 1979. Petitioner invokes this
Court's jurisdiction under 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether extortion “by wrongful use of . . . fear, or
under color of official right,” in violation of the Hobbs Act,
is established by showing partisan political fundraising
from lessors of equipment to a State agency by State em-
ployees having power over the assignment of work under
such leases.
2. Whether interstate commerce is obstructed, delayed
or affected “in any way or degree,” so as to establish federal
criminal jurisdiction under the Hobbs Act, by extortion
of money from people who consume goods which have
travelled in commerce, but who neither sell goods nor
perform services in commerce.
STATUTES INVOLVED
Title 18, U.S.C. §1951. Interference with commerce by
threats or 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—
(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, Posses-
sion, or the District of Columbia and any point
outside thereof; all commerce between points
within the same State through any place outside
such State; and all other commerce over which the
United States has jurisdiction.
NEW YORK PENAL LAW OF 1909:
§850. Extortion defined.
Extortion is the obtaining of property from another,
or the obtaining the property of a corporation from
an officer, agent or employee thereof, with his con-
sent, induced by a wrongful use of force or fear, or
under color of official right.
ey a
EE EEEEOOOSOS'S'SCCC ee
§851.
§852.
§854.
§855.
Statutes Involved
What threats may constitute extortion.
Fear, such as will constitute extortion, may be in-
duced by an oral or written threat:
1. To do an unlawful injury to the person or property
of the individual threatened, or to any relative of his
or to any member of his family or to a corporation of
which he shall be an officer, stockholder, employee
or agent; or,
Punishment of extortion.
A person who extorts any money or other property
from another, under circumstances not amounting to
robbery, is punishable by imprisonment not exceeding
fifteen years, if the same is done by means of force
or a threat mentioned in section eight hundred and
fifty or in either of the first four subdivisions of section
eight hundred and fifty-one, . . . .
Extortion committed under color of official
A public officer, or a person pretending to be such,
who, unlawfully and maliciously, under pretense or
color of official authority:
l. Arrests another, or detains him against his will; or,
2. Seizes or levies upon another’s property; or,
3. Dispossesses another of any lands or tenements; or,
4. Does any other act, whereby another person is in-
jured in his person, property, or rights,
Commits oppression and is guilty of a misdemeanor.
Public officer taking illegal fees commits extortion.
A public officer who asks, or receives, Or agrees to re-
ceive, a fee or other compensation for his official serv-
ice:
right.
Statutes Involved 5
l. In excess of the fee or compensation allowed to
him by statute therefor; or,
2. Where no fee or compensation is allowed to him
by statute therefor,
Commits extortion and is guilty of a misdemeanor.
STATEMENT OF THE CASE.
Petitioners were charged in a sixteen-count supersed-
ing indictment with committing extortion by the wrongful
use of fear and under color of official right, in violation of
the Hobbs Act, 18 U.S.C. §1951. Trial commenced Feb-
ruary 13, 1978. Petitioner Buffone became seriously ill in
the course of the trial, and his case was severed. Verdicts
of guilty on various counts were rendered March 25, 1978.
as to the remaining three. Buffone was subsequently tried
on a stipulation applying the testimony at the trial of the
others to him, and likewise convicted. Execution of their
sentences has been stayed pending appeal.
Petitioner Cerilli was Superintendent for Westmore-
land County of the Pennsylvania Department of Transporta-
tion (PennDOT) during the 1971-1973 period involved in
this case. Petitioners Buffone, Yackovich and Shurina were
Assistant Superintendents. In order to fulfill its responsi-
bilities, PennDOT needed to lease equipment from private
owners for snow removal and general road maintenance
and repair. Petitioners had substantial power to determine
who would be successful in obtaining contracts for this
work, whose equipment among the contractors would work
on a given job, how much werk each owner's equipment
would receive in a season, and the rate to be paid for each
piece of equipment, not to exceed the maximum estab-
lished by the Department. “A number of lessors testified
6 Statement of the Case
at trial that one or more of the defendants required that
payments be made as condition to the lessors’ equipment
being used.” Appendix A, slip op. at 4.
Through cross-examination and requests for charge,
and then again on appeal, petitioners propounded the view
that coercive solicitation of political contributions does not
constitute Hobbs Act extortion, since aggressive political
activity is not “wrongful.” The question of federal jurisdic-
tion was also raised throughout, as the required effect on
commerce was shown only on the theory that the lessors,
who themselves did no business in interstate commerce,
were consumers of products which moved in interstate
commerce, and that extortion of them would pro tanto
deplete the resources they had available to purchase such
products.
A divided panel of the United States Court of Appeals
for the Third Circuit affirmed. The panel majority con-
cluded:
Thus, although the solicitation of political contribu-
tions is not inherently “wrongful,” the solicitations
here were “wrongful” in that neither the appellants
nor any political committee had a “lawful claim” to
those contributions.
= Oo aa 2
. . . We hold therefore that the coercive solicitation
of political contributions is within the realm of actions
that are illegal under the Hobbs Act.
Appendix A, slip op. at 6-7, 9. The panel also rejected
petitioners argument that their actions should be judged by
the strictissimi juris standard established in Noto v. United
States, 367 U.S. 290, 299-300 (1961), because petitioners
were not “indicted for membership in a political party nor
have they been indicted for their personal political prefer-
Statement of the Case 7
ences. Id. at 11. The court found sufficient evidence to
establish an effect on commerce by the lessors’ payment of
money to petitioners which “resulted in a depletion of re-
sources thereby reducing the lessors’ capacity to make their
purchases of fuel and supplies in interstate commerce. Id.
at 15. The panel thus rejected petitioners’ argument that
the “depletion of resources” test should only be applied
where the victim of the extortion is itself an interstate
business. Concomitantly, the panel upheld the trial judge's
instruction that “you may find interstate commerce . . . if
you find beyond a reasonable doubt that the victim pur-
chased goods in interstate commerce and that the money
was extorted from him; then, as a matter of law, commerce
was affected.” Id. at 16 n.11.
Judge Aldisert dissented on the grounds that the trial
judge had instructed the jury incorrectly in the meaning of
extortion “under color of official right.” He argued that the
way in which this theory of the offense was explained to
the jury and upheld by the majority ignored the historical
meaning of the phrase, as incorporated in the Hobbs Act,
and blurred any distinction between extortion. which is
prohibited by the Act, and bribery, which is not. Appendix
A, slip op. at 19-41. The majority, however, held that no
element of coercion need be proved in a prosecution under
this clause. Id. at 17-18.
Rehearing and rehearing in banc were refused, Ap-
pendix B.
REASONS FOR GRANTING THE WRIT
I
The decision below construes the Hobbs Act in a man-
ner inconsistent with this Court’s “Enmons” decision
and the Act’s legislative history, and in a way which
makes a federal crime of accepted political activity in
the States.
(a) The meaning of extortion “under color of official
right”
Dissenting from the panel decision and urging in banc
rehearing, Judge Aldisert sets forth in some detail the his-
tory, both legislative and common law, of the technical
expression “color of official right” which Congress incorpo-
rated into the Hobbs Act definition of extortion. See also
United States v. Mazzei, 521 F.2d 639, 651-55 (3d Cir. )
(in banc), cert. denied, 423 U.S. 1014 (1975) (Gibbons &
Aldisert, JJ., dissenting). In short, the rather sparse evi-
dence of congressional intent all suggests that it was the
New York law of extortion which was incorporated into the
Anti-Racketeering Act. In turn, the 1934 Act became the
Hobbs Act in 1946. From 1881 through the time of enact-
ment of these federal laws, New York penal law was set
forth in a code. During the 1930's and °40’s, the law of
extortion was set forth in the 1909 Penal Law §§850 through
855. (These provisions are set forth, in pertinent part, as
Statutes Involved, ante.) The definition section of the New
York Law, $850, is essentially identical to 18 U.S.C. §1951
(b)(2). Unlike the federal law, however, the term “color
of official right” does not go further unexplicated in the
1909 New York code, but rather is elaborated on in §§854
and 855. (Sections 851 and 853 set forth what threats were
sufficient in law to constitute the “fear” referred to in §850.
ee ee eee ee
Reasons for Granting the Writ 9
Section 852 grades the “fear” branch of extortion as a felony.
punishable by a mandatory minimum sentence of five years,
with a maximum of twenty in some instances, and a range
of zero to fifteen for the remainder of “fear” cases.) The
“color of official right” branch of extortion, dealt with in
§§854 and 855, on the other hand, was graded only as a
misdemeanor. Section 854 declares all unlawful and mali-
cious abuses of office whereby others are injured to be
extortion, while §855 is traditional, common law extortion
—the exaction of an unauthorized or excessive fee for official
action.
Thus, New York law as it stood at the time of enact-
ment of what is now §1951(b)(2) supported Judge Aldi-
sert’s analysis: the only subspecies of extortion which was
free of an element of duress was the narrowest, “Black-
stonian’ type. Appendix A, slip op. at 35; see discussion
id. at 36. Judge Aldisert argues, as proposed in an article
by Professor, Assistant Deputy Attorney General and former
Special Prosecutor Charles Ruff, Federal Prosecution of
Local Corruption, 65 Geo. L.J. 1171 (1977), that the Hobbs
Act could be returned to its common law roots by a con-
struction of the disjunctive “or.” A more direct route to
the same end would be to recognize that extortion “under
color of official right,” as incorporated into the Hobbs Act,
had a very specific historical meaning. Official exaction of
unauthorized fees is the classic extortion under color of
official right and may be punished without proof of “force,
violence, or fear.” However, because Congress did not
make bribery an offense under the Hobbs Act, the statute
requires a construction limiting “extortion” to cases where
there is a true “victim,” one who is coerced by the abuse of
office into surrendering his property, “ “which he would not
otherwise have done.” Appendix A, slip op. at 37 (dis-
sent), quoting W. LaFave & A. Scott, Handbook on Crimi-
10 Reasons for Granting the Writ
nal Law 707 (1972). Otherwise, what was not extortion,
but rather bribery under New York (and common) law,
and thus is not forbidden under the Act, is pulled in indis-
criminatery. In this way, all alleged local corruption be-
comes a federal offense, despite careful and limited Con-
gressional action in this delicate area.
The petitioners request to charge highlighting this
distinction was refused, see Appendix A, slip op. at 21 n.3
(dissent), although the testimony of the lessors supported
their view of the case. See Point 1.c. post.
Judge Aldisert’s dissent below vividly depicts the con-
sequences of a “Hobbs Act run rampant,” Appendix A,
slip op. at 41, “cut . . . loose from the anchor of the common
law and set . . . adrift upon a sea of prosecutorial discre-
tion.” Mazzei, supra, 521 F.2d at 655 (Gibbons, J., dissent-
ing). This Court, which has to date considered the Hobbs
Act only in the context of labor racketeering, see United
States v. Enmons, 410 U.S. 396 (1973); Stirone v. United
States, 361 U.S. 212 (1960); United States v. Green, 350
U.S. 415 (1956), and extortion by violence, see United
States v. Culbert, 435 U.S. 371 (1978), should now consider
the revolutionary role the Act has assumed in federalizing
the prosecution of alleged local political corruption. These
cases have not only resulted in an obliteration of the tradi-
tional distinction between bribery and extortion. They
have also led, in this case, to a construction of the Hobbs
Act under which partisan political fundraising as it is com-
monly conducted in our public life has become a federal
felony when engaged in by a state governmental employee
having any power over expenditure of public funds.
For these reasons, the writ of certiorari should be
granted.
A eR ORO a Ae COAL
Reasons for Granting the Writ 1]
(b) The requirement of “wrongful” purpose
Some of the problems arising out of the panel majer-
ity’s analysis should have been avoided by a strict construc-
tion of the term “wrongful” as used in $1951 ( b)(2). Such
a construction is required by this Court's decision in U nited
States v. Enmons, 410 U.S. 396 (1973), which the court of
appeals attempts unsuccessfully to distinguish.
In Enmons, this Court did not somehow exempt labor
disputes from the reach of the Hobbs Act but leave the Act
otherwise unaffected, as the court below seems to think.
Rather, it construed the language of the Act strictly and
resolved ambiguity in favor of lenity—as it was bound to do
—to give meaning to the term “wrongful,” see id. at 411.
Enmons makes clear that mere wrongful means—in that
case force and violence—do not make extortion. The al-
legedly criminal conduct must also seek a wrongful end,
such as a personal payoff, fictitious political “contribution, »
or “wages” in return for unwanted or unperformed services.
Compare Enmons with United States v. Green, 350 U.S.
415 (1956). Contrary to the majority's curious statement
Appendix A, slip op. at 6-7, the solicitation in this case did
not become “wrongful” simply because the Democratic
Party had no “lawful claim” to the money in the same sense
that a worker has a claim to wages. If that were so, every
eleemosynary solicitation would be “wrongful,” and the
annual federal employees United Fund campaign would be
a Hobbs Act felony.
The same logic which requires a restricting construc-
tion of “wrongful” in the fear-and-violence context requires
its application in the “color of official right” setting. As this
Court noted in Enmons, “Congressman Hobbs indicated
that ‘wrongful’ was to modify the entire section. 410 U.S.
at 399 n.2.
12 Reasons for Granting the Writ
There are two other reasons why a more limited and
careful construction of the Act is required. The court of
appeals rather lightly dismisses petitioners’ contention that
their actions were sufficiently linked to protected political
activity to invoke the doctrine of strictissimi juris. It is true
that they were not “indicted for membership in a political
party nor have they been indicted for their personal political
preferences.” Appendix A, slip op. at 11. Neither were the
Civil Rights demonstrators (see, e.g., Edwards v. South
Carolina, 372 U.S. 229 (1963) (breach of the peace) ). Yet
they, too, were protected in the review of their criminal
convictions by “the shadow of the first amendment.” United
States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972), cert.
denied, 410 U.S. 970 (1973). F undraising is not the most
glamorous of the protected political freedoms, but it is no
less one of them. Buckley v. Valeo, 426 U.S. 1, 14-23
(1976). When the Hobbs Act is used in this context, it
must be especially strictly construed.
Second, as this Court also held in Enmons:
“[U]nless Congress conveys its purpose clearly, it will
not be deemed to have significantly changed the fed-
eral-state balance... . [Wle will not be quick to
assume that Congress has meant to effect a significant
change in the sensitive relation between federal and
state criminal jurisdiction.”
410 U.S. at 411-12, quoting United States v. Bass, 404 U.S.
336, 349 (1971). Strict construction of the “wrongful”
limitation is required for this reason as well. especially
when the federal law enforcement machinery seeks to reach
local governmental activity. Cf. National League of Cities
v. Usery, 426 U.S. 833 (1976).
For these reasons as well, the writ should be granted.
Reasons for Granting the Writ 13
(c) The meaning of “fear”
The court below summarily rejected petitioners’ con-
tention that the evidence was insufficient for a reasonable
jury to conclude that the lessors’ consent to make contribu-
tions was induced by their “fear of economic loss.” In
United States v. Callahan, 551 F.2d 733 (6th Cir. 1977),
the court denounced as error the exclusion of defense evi-
dence showing prior routine payments by the alleged victim
company to the union represented by the defendant. In
describing the evidence involved the court declared:
It was appellant’s contention that K & B . . . would
negotiate with local unions and would routinely pay
them off—not out of fear of violence or property dam-
age, but rather as a matter of sound business judg-
ment in order to avoid having to hire through a dif-
ferent local union, with different rules and hiring
practices, at each construction site. On this basis,
appellant contended that Kimble was not motivated
by fear in agreeing to pay the $1,510.00 to members
of appellant’s union and that a required element of
the crime of extortion was therefore absent.
Id. at 736. The court held that if payments to the defend-
ant were made “for the sake of expediency and not out of
fear,” id., a defense would be established.
The decision below conflicts with the decision of the
Sixth Circuit in Callahan. In this case nearly every alleged
victim testified to his own practice of routinely, as a matter
of business expediency, making political contributions, not
to the political party of his own choice but to the party in
power. Walter Seigfried, for example, felt it was “only
fair’ to make contributions to “the system that gave [him]
the work” (T188). After some discussion he and his wife
decided to make the payment saying, “We might as well
and see what happens” (T194, T198). William Ramaley
14 Reasons for Granting the Writ
agreed that “The people making the money should be the
ones to contribute” (T408-T409). Harry Graham felt he
was buying “a little insurance” (T463). Anthony Caletri
said “I was just going along with the group (T529).
Thomas Zimmerman said his father had been a regular con-
tributor to both parties and, of course, his purpose in going
to see one of the petitioners was to demand a quid pro quo
(T1553). James Poole said he made his contributions be-
cause it was his friend, Gene Cerilli, who asked for it (T940-
T941). He had absolutely no fear of Cerilli retaliating in
any way (T945-T946). As to these people, the government
totally failed to prove they were motivated by fear within
the meaning of the Hobbs Act.
Petitioners’ requests to charge on this point (Nos. 5, 7,
20 and 22) were refused, and the district court charged that
mere “anxious concern or alarm or apprehension of antici-
pated harm to a business or threatened loss” would be
sufficient.
The writ of certiorari should be granted to clarify this
important area of the law and resolve the conflict between
the Third Circuit's ruling in this case and that of the Sixth
Circuit in Callahan.
II
The decision below would remove all jurisdictional
barriers to complete federalization of the law of rob-
bery and extortion.
The court below holds that extortion of a local business
which makes no sales of out-of-state products and performs
no services for out-of-state customers “affects commerce”
within the meaning of the Hobbs Act, 18 U.S.C. §1951 (a),
if that business purchases some of its supplies for its own
consumption from out of state. Appendix A, slip op. at
Reasons for Granting the Writ 15
14-16. This holding should not go unexamined by the
Court, for it would demolish the last barrier to complete
federalization of the law of robbery and extortion.
In United States v. Mazzei, 521 F.2d 639, 642 (3d
Cir.), cert. denied, 423 U.S. 1014 (1975), the in banc court
of appeals wrote:
where the resources of an interstate business are de-
pleted or diminished “in any manner’ by extortionate
payments, the consequent impairment of ability to
conduct an interstate business is sufficient to bring
the extortion within the play of the Hobbs Act.
(emphasis added). In Mazzei, subsidiaries of the victim
enterprise, B.M.I., Inc., purchased “materials in a number
of states for use in manufacturing products sold in almost
every state.’ Id. This is precisely the situation held suff-
cient in Stirone v. United States, 361 U.S. 212, 215 (1960 ) ,
where the victim’s Pennsylvania steel business had custom-
ers in Michigan and Kentucky; under those circumstances,
extortion of him affected commerce if it obstructed and de-
layed his purchase of sand from out of state.
In this case, by contrast, the only proof on the com-
merce issue was that the lessors bought fuel for their trucks
from local dealers who in turn obtained it from out-of-state,
and that most of the lessors bought some supplies and
equipment for use in their business which had travelled in
commerce. Appendix A, slip op. at 14. In other words,
they were consumers of out-of-state goods. If extortion or
robbery (the Hobbs Act reaches both equally) affects com-
merce under these circumstances. then every street-corner
mugging is a federal offense, for who among us does not
purchase gasoline, vegetables, clothing or books produced
in another state? The line reached in Stirone, that of an
“interstate business,” was a sound one. It should not be
16 Reasons for Granting the Writ
further eroded, indeed destroyed altogether, without care-
ful consideration of the impact on “the federal-state bal-
ance in crime control. United States v. Enmons, supra,
410 U.S. at 411-12, quoted ante. See Maryland v. Wirtz,
392 U.S. 183, 197 n.27 ( 1968 ).
Moreover, the charge to the jury on this issue—upheld
by the court below on the basis of earlier Third Circuit law,
Appendix A, slip op. at 16 n.11—not only permitted them
to find that petitioners conduct affected commerce, an
essential element of the offense, but literally required it:
“if you find beyond a reasonable doubt that the victim pur-
chased goods in interstate commerce . . . then, as a matter
of law, commerce was affected.” This charge cannot be
reconciled with the constitutional] guarantee of trial by jury.
No matter how clear the evidence. [defendants] are
entitled to have the jurv instructed in accordance with
the standards which Congress has prescribed. To re-
peat, guilt is determined by the jury, not the court.
United Bhd. of Carpenters v. United States, 330 U.S. 395.
410 (1947). As the Court stated very recently, “verdicts
may not be directed against defendants in criminal cases.”
Sandstrom v. Montana, — U.S. ~, — n.d (June 18, 1979).
For these reasons as well, the writ should be granted.
17
CONCLUSION
The decision of the court below would establish a con-
struction of the Hobbs Act prohibition on extortion under
color of official right which significantly intrudes on tradi-
tional political activity, distorts the federal-state balance in
the criminal law, and stretches the intended meaning of the
statute beyond all limitation. It does so by misapprehen-
sion of the Court’s cases construing the Hobbs Act. For
these reasons the petition for certiorari should be granted,
the judgment of the United States Court of Appeals for the
Third Circuit reversed, and either a judgment of acquittal
entered or a new trial granted.
Respectfully submitted,
CARROLL CREAMER
CARROLL & DUFFY
/s/ John Rogers Carroll
JOHN ROGERS CARROLL
/s/ Peter Goldberger
PETER GOLDBERGER
Attorneys for Petitioners,
Suite 326,
Three Penn Center Plaza,
Philadelphia, Pennsylvania 19102
(215) 568-5200
DATED: August 13, 1979
LPL SEESPEEET
APPENDIX A
UNITED STATES COURT OF APPEALS
Nos. 78-2105, 78-2106, 78-2107, 78-2439
UNITED STATES OF AMERICA
vs.
EGIDIO CERILLI,
Appellant in No. 78-2105
MAYLAN YACKOVICH,
Appellant in No. 78-2106
JOHN SHURINA,
Appellant in No. 78-2107
‘\ALPH BUFFONE,
Appellant in No. 78-2439
APPEAL FROM JUDGMENTS OF CONVICTION IN
CriminaL No. 76-22 (W.D. Pa.)
Argued February 13, 1979
Before: ALDISERT. ADAMS and HiccInBoTHAM.
Circuit Judges
(Opinion filed June 29, 1979)
Al
JoHN Rocers Carrou, Eso.
(argued)
PeTrer GoupBercer, Eso.
CaRROLL CREAMER CARROLL
& Durry
326 Three Penn Center
Plaza
Philadeiphia, Pa. 19102
Attorneys for Appellants
Cerilli, Yackovich and
Shurina
Rosert J. Crnpricy,
United States Attorney
DanteL H. SHapma
(argued)
Faye M. GarpNner
James J. West
633 U.S. Post Office
and Courthouse
Pittsburgh, Pa. 15219
Assistant U.S. Attorneys
Attorneys for Appellee
Wim F. Manirssto, Esa.
Maniresto, Donerry, Love
& Tauazico, P.C.
Lawyers’ Building,
Suite 200
Pittsburgh, Pa. 15219
Attorney for Appellant
Buffone
OPINION OF THE COURT
HicernsotHam, A. Leon, Jr., Circuit Judge.
In recent years, much attention has been paid on the
national level to the methods. by which political parties
finance their partisan activities and by which political
leaders choose individuals for certain high-ranking posi-
tions. This case involves the relationship, on a local level,
between the financing of political parties and the choice of
individuals for certain not-so-high-ranking but sometimes
lucrative work. Appellants Egidio Cerilli, Maylan Yacko-
vich, Ralph Buffone, and John Shurina have been con-
victed and sentenced for conspiring to violate the Hobbs
Act, 18 U.S.C. § 1951? and for substantive violations of
1. The Hobbs Act provides:
§ 1951. Interference with commerce by threats or violence
(a) Whoever in any way or degree obstructs, delays, or affects com-
merce or the movement of any article or commodity in commerce, by
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3
that Act. We will affirm the respective judgments of
sentence.
I. Facts
The appellants are employees of the Pennsylvania De-
partment of Transportation (PennDOT) in Westmore-
land County, District 12-5. Cerilli occupied the position of
Superintendent while Buffone, Yackovich and Shurina were
Assistant Superintendents.
In order to fulfill its snow removal and general road
maintenance and repair responsibilities, PennDOT leases
equipment from private owners. The leasing is accom-
plished at the discretion of the local superintendent and
1. (Cont’d.)
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 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 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.
(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.
Appellants Cerilli, Yachovich and Shurina were tried together. Ap-
pellant Buffone’s case was severed from those of the other appellants
when he became ill during trial. Buffone subsequently waived his right
to a jury trial and entered into a stipulation with the government whereby
the testimony at the trial of the other appellants as well as the other
appellants’ objections and motions and the court’s rulings prior to, at the
time of, and post trial were made part of the record with respect to
Buffone. Buffone was then found guilty by the district court and was
sentenced. We have granted his motion to consolidate his appeal with
those of the other appellants. He has adopted the briefs and appendix filed
on behalf of the other appellants.
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4
all such leases must be Approved by the superintendent or
his designee. The superintendent has the authority to
negotiate rates for these leases up to a maximum rate set
by the Department of Highways. Once a lease is signed,
the amount of work for which a lessor’s equipment is used
is also determined at the county level.
A number of lessors testified at trial that one or more
of the defendants required that payments be made as con-
dition to the lessors’ equipment being used.
Appellants do not challenge these basic facts. Instead
they attack their convictions primarily on the theories
that these facts do not constitute violations of the Hobbs
Act and that the evidence was not sufficient to warrant
conviction under the Hobbs Act because appellants’ partici-
pation in a conspiracy was not proved and because there
was an insufficient effect on interstate commerce.
II. Is roe Coercive SouiciTaTIon oF PoLiticaL ConrTripu-
TIONS a VIOLATION OF THE Hopss Act?
Appellants contend that the payments they obtained
were political contributions. The indictment does not
specify for what purpose the payments were used. Testi-
mony at trial! established that some of the payments were
in the form of checks made out to political committees. We
will assume for the purpose of this discussion that these
payments did constitute political contributions.
Appellants argue that since the Hobbs Act defines ex-
tortion as the ‘‘wrongful use of actual or threatened force,
2. Appellants also argue:
1. The failure of the evidence to establish that the payors were motivated
by fear of economic loss warrants reversal.
. The failure of the evidence on Counts 6 and 12 to establish an attempt
warrants reversal.
. The district court committed reversible error in admitting co-con-
spirator hearsay evidence without sufficient independent evidence of
conspiracy.
4. The district court committed reversible error in its instructions on
specific intent, fear of loss of property and attempt.
5. The district court abused its discretion in denying a continuance in
response to Cerilli’s mid-trial hospitalization.
We have considered these arguments and conclude that they are without
merit.
wo NN
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violence, or fear,’ (emphasis supplied), if the force, vio-
lence or fear is used for a lawful purpose, the use is not
wrongful and extortion is not committed. Appellants sub-
mit that the solicitation of political contributions is not
only lawful, but is protected by the First Amendment.
Appellants also argue that extortion ‘under color of offi-
cial right’’ is likewise restricted to situations where the
purpose for the obtaining of the payments is unlawful.
Appellants urge that their theory is supported by the
Supreme Court’s decision in U.S. v. Enmons, 410 U.S. 396
(1973). In that case, the indictment charged certain mem-
bers and officials of labor unions with committing acts of
violence and destruction against the property of the Gulf
States Utilities Company in the course of a strike against
that company in order to force that company to agree toa
contract providing for higher wages and other benefits.
The Court stated that ‘‘wrongful’’ as used in the Hobbs
Act “‘limits the statute’s coverage to those instances where
the obtaining of the property would itself be wrongful be-
cause the alleged extortionist has no lawful claim to that
property.’’ 410 U.S. at 400. The Court concluded that
where violence is used ‘‘to achieve legitimate union objec-
tives . . . there has been no ‘wrongful’ taking of the em-
ployer’s property; he has paid for the services he bar-
gained for, and the workers receive the wages to which they
are entitled in compensation for their services.’’ Jd.
In reaching this conclusion the Court relied heavily on
the legislative history of the Hobbs Act. Section 2 of the
Anti-Racketeering Act of 1934, 48 Stat. 979, while similar
to the Hobbs Act, contained an exception for the payment
of wages by an employer to an employee. On the basis of
this language, the Court in U.S. v. Local 807, 315 U.S. 521
(1942) held that a scheme by New York City teamsters to
coerce payments from out-of-town drivers and owners for
allowing their trucks to enter the city did not violate the
3. The relationship between the solicitation here and the rights protected
by the First Amendment is also the basis of appellants’ claim, discussed infra,
that the evidence against them must be scrutinized most closely under the
doctrine of scrictissimi juris.
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EE SSS ee
6
Anti-Racketeering Act. In response, Congress passed what
became the Hobbs Act. The legislative history made it
clear that the new act reached extortion by union members
‘“‘under the guise of obtaining wages.’’ 91 Cong. Ree. 11900
as quoted in U.S. v. Enmons, 410 U.S. at 403. That history
also made it clear that the new act ‘does not have a thing
in the world to do with strikes.’’ 91 Cong. Ree. 11912 as
quoted in U.S. v. Enmons, 410 U.S. at 404.
The Court was quite explicit in stating its reluctance
to construe the Hobbs Act as a method of regulating strike
actions:
[I]t would require statutory language much more
explicit than that before us here to lead to the conclu-
sion that Congress intended to put the Federal Govern-
ment in the business of policing the orderiy conduct of
strikes. Neither the language of the Hobbs Act nor its
legislative history can justify the conclusion that Con-
gress intended to work such an extraordinary change
in federal labor law or such an unprecedented incursion
into the criminal jurisdiction of the States.
410 U.S. at 411.
We are thus confronted with the question of whether
the political contributions here are sufficiently similar to
the wage payments in Enmons to bring this case within
Enmons’ precedential orbit. We conclude that they are not.
Once a collective bargaining agreement is reached, it is
generally impossible to determine what portion of the bene-
fits, if any, are the result of violent action. Thus the Court
in Enmons could properly conclude that the defendants
there had a “‘lawful claim”’ to the wages they received.
It is clear from this record, however, that the contributions
were, in substantial if not total measure, a result of appel-
lants’ extortionate actions. Thus, although the solicitation
of political contributions is not inherently ‘‘wrongful,’’ 4
4. The jury was instructed, “Solicitation of political contributions or the
sale of tickets is lawful conduct... .” Appellants’ Appendix, p. 1256.
A6
7
the solicitations here were ‘‘wrongful’’ in that neither the
appellants nor any political committee had a “lawful
claim’’ to those contributions.
More importantly, Enmons is a labor ease. The
Court’s reasoning was obviously and explicitly tied to the
labor context and more specifically to the strike context.
Any application of Enmons to cases outside of that context
must be done with caution. Otherwise there is a danger
that Enmons, if read as the appellants read it, could ef-
fectively repeal the Hobbs Act. The receipt of money
whether by a political party, a charitalle institution or by
an individual is generally not inherently wrongful. The
wrong under the Hobbs Act is the manner in which it is
obtained. Thus we understand Enmons as not relying pri-
marily on the legitimacy of the union’s objectives but
rather on the clear Congressional intent, as expressed both
in the legislative history of the Hobbs Act and the entire
federal scheme regulating labor-management relations, that
violence during labor strikes not be punishable as extortion
under the Hobbs Act. There is no corresponding intent to
exempt the type of activity here from the ambit of the Act.
It is well-established that a person may violate the
Hobbs Act- without himself receiving the benefits of his
coercive actions. See U.S. v. Green, 350 U.S. 415, 420
(1956), U.S. v. Trotta, 525 F.2d 1096, 1098 n.2 (2d Cir.
1975), cert. denied, 425 U.S. 971 (1976) ; U.S. v. Provenzano,
334 F.2d 678, 686 (3d Cir.), cert. denied, 379 U.S. 997
(1964). U.S. v. Trotta itself involved political contribu-
tions and the court there held that this fact did not alter
the defendant’s criminal liability.6 This court in U.S. v.
Homer, 545 F.2d 864 (3d Cir. 1976) (per curiam), cert.
5. Appellants have suggested that 18 U.S.C. §601 evidences such an
intent. For the reasons given infra, we do not accept that contention.
6. In U.S. v. Mazzei, 521 F.2d 639 (3d Cir.) (in banc), cert. denied, 423
U.S. 1014 (1975), payments were obtained in the guise of political con-
tributions, but it was suggested at trial that the defendant might have
“pocketed the money.” See U.S. v. Mazzei, 390 F. Supp. 1098, 1106 (W.D.
Pa. 1975). Likewise, in U.S. v. Rosa, 560 F.2d 149 (3d Cir.) (in banc), cert.
dented, 434 U.S. 862 (1977), what the defendant did with the “donations” he
extorted was unclear. Since we have assumed arguendo that the payments
A7
8
dented, 431 U.S. 954 (1977), which involved the conviction
of a state legislator under the Hobbs Act, stated that evi-
dence that the defendant delivered the money he had ex-
torted to the local party treasurer was not probative of the
extortion charge and was therefore properly excluded. On
the basis of this well-established line of case law, we con-
clude that the appellants’ conduct here constituted extor-
tion regardless of whether the payments went into appel-
lants’ pockets or their party’s coffers.
Appellants argue that the passage of 18 U.S.C. § 601
indicates that Congress did not view the type of activity
involved here as violating the Hobbs Act. § 601(a) pro-
vides:
Whoever, directly or indirectly, knowingly causes
or attempts to cause any person to make a contribu-
tion of a thing of value (including services) for the
benefit of any candidate or any political party, by
means of the denial or deprivation, or the threat of the
denial or deprivation, of—
(1) any employment, position, or work in or
for any agency or other entity of the Government
of the United States, a State, or a political sub-
division of a State, or any compensation or bene-
fit of such employment, position, or work; or
(2) any payment or benefit of a program of
the United States, a State, or a political subdivi-
sion of a State;
if such employment, position, work, compensation,
payment, or benefit is provided for or made possible
6. (Cont’d.)
here were actually political contributions, we do not rely on Mazzei and Rosa
with respect to this point.
Neither do we believe, however, that U.S. v. Sutter, 160 F.2d 754 (7th
Cir. 1947), cited by appellants, is relevant to our analysis. In that case, the
defendant, a federal employee, obtained money claiming that it would be given
to a variety of charitable causes. The court reversed his conviction because
“the evidence wholly fails to show that the defendant used his employment to
extort, but shows that he used appealing causes to defraud.” 160 F.2d at 757.
The appellants here clearly used their employment to extort. Therefore
Sutter is inapposite.
A8
9
in whole or in part by an Act of Congress, shall be
fined not more than $20,000, or imprisoned not more
than one year, or both.
The primary concern of Congress in passing §601 was
obviously with preventing government employees from hav-
ing to make political contributions in order to obtain or re-
tain their jobs. See S. Rep. No. 94-1245, 94th Cong., 2nd
Sess., reprinted in (1976) U.S.C.A.N. 2883; H.R. Rep. No.
94-986, 94th Cong., 2nd Sess. (1976). It is doubtful
whether appellants could be prosecuted under this section
since they obtained payments from lessors not employees.
Section 601 is clearly not jurisdictionally co-extensive with
the Hobbs Act. The jurisdictional basis for 4 601 is that
the employment, position, work, ete. must have been pro-
vided at least in part by an Act of Congress. This is in
contrast to the Hobbs Act’s jurisdictional requirement of
an affect on commerce. We conclude that § 601 is Con-
gress’ attempt to deal with a problem related to but not
identical with the problem at which the Hobbs Act is aimed.
The passage of § 601 thus does not indicate that activities
such as those in which appellants have engaged are not
proscribed by the Hobbs Act. We hold therefore that the
coercive solicitation of political contributions is within the
realm of actions that are illegal under the Hobbs Act.”
III. Apgequacy or THE EvIDENCE
A. Strictissimi Juris
Having concluded that the relationship between ap-
pellant’s actions and the political process does not insulate
them, as a matter of substantive law, from Hobbs Act lia-
bility, we face their argument that this relationship at least
affords them a measure of procedural protection. Appel-
lants’ contention is that since their ‘‘allegedly criminal
conduct was inextricably linked to protected political ac-
7. The district court’s refusal to instruct the jury to the contrary is,
therefore, not error.
A9
EE EI:«SC'SCOSY&SSSSFr ee
10
tivity ... [t]he doctrine of strictissimi juris ... requires
the highest standard of proof to be applied to every ques-
tion of sufficiency arising at the trial.’’ Appellants’ Brief,
p. 51.
This doctrine, which literally translated means ‘‘of the
strictest right,’’ apparently arose out of two Supreme Court
cases reviewing convictions under the Smith Act, 18 U.S.C.
§ 2385. In Scales v. U.S., 367 US. 203, 232 (1961), the
Court stated that ‘‘Smith Act offenses involving as they
do subtler elements than are present in most other crimes,
call for strict standards in assessing the adequacy of the
proof needed to make out a case of illegal advocacy.’’ The
Court in Noto v. U.S., 367 US. 290, 299-300 (1961) ruled
that the individual defendant’s criminal intent like other
elements of a violation of the membership clause of the
Smith Act,® ‘“‘must be judged strictissimi juris, for other-
wise there is a danger that one in sympathy with the legiti-
mate aims of such an organization, but not specifically in-
tending to accomplish them by resort to violence might be
punished for his adherence to lawful and constitutionally
protected purposes, because of other and unprotected pur-
poses which he does not necessarily share.”
The doctrine was applied in’ U.S. v. Spock, 416 F.2d
165 (1st Cir. 1969), where jefendants who had been in-
volved in the formulation and distribution of ‘“A Call to
Resist Illegitimate Authority,’’ were convicted of conspir-
ing to aid others in refusing or evading registration of
service in the armed forces in violation of 50 U.S.C. App.
§426(a). Partially as a result of the application of this
doctrine, the convictions were vacated. The Seventh Cir-
cuit, in U.S. v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972),
8. The Smith Act, in relevant part, provides:
Whoever organizes or helps or attempts to organize any society,
group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any such government by force or violence; or
becomes or is a member of, or affiliates with, any such society, group, or
assembly of persons, knowing the purposes thereof—
Shall be fined not more than $20,000 or imprisoned not more than
twenty years, or both, and shall be ineligible for employment by the
United States or any department or agency thereof, for the five years
next following his conviction.
Al10
1]
cert. denied, 420 U.S. 970 (1973) which involved convictions
under the Federal Anti-Riot Act, 18 U.S.C. §§ 2101, 2102,
described the application of the doctrine in the following
terms:
When the group activity out of which the alleged
offense develops can be described as a bifarious under-
taking, involving both legal and illegal purposes and
conduct, and is within the shadow of the first amend-
ment, the factual issue as to the alleged criminal intent
must be judged strictissimi juris. This is necessary
to avoid punishing one who participates in such an
undertaking and is in sympathy with its legitimate
aims, but does not intend to accomplish them by un-
lawful means. Specially meticulous inquiry into the
sufficiency of proof is justified and required because
of the real possibility in considering group activity,
characteristic of political or social movements, of an
unfair imputation of the intent or acts of some par-
ticipants to all others.
The coercive solicitation of appellants here is not the
type of ‘‘bifarious undertaking . . . within the shadow of
the first amendment”’ that warrants the application of the
strictissimt juris doctrine. We need not sort out the subtle
shadings of intent involved in Scales, Noto, Spock, and
Dellinger. We need not seriously fear that convictions in
cases such as this will chill the legitimate exercise of first
amendment rights. Appellants have not been indicted for
membership in a political party nor have they been indicted
for their personal political preferences. They have been
indicted for extortion. We are satisfied that the traditional
standards of proof and of judicial review are fully adequate
to protect appellants’ rights without application of the
doctrine of strictissimi juris.
B. Evidence of Conspiracy
According to appellants, the evidence at trial ‘‘showed
that the county superintendent of PennDOT and his as-
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12
sistants were committed to aggressive fundraising for the
Democratic Party, but no agreement to extort, whether
express or implied, was shown.’’ Appellants’ Brief, p. 39.
We agree with the government that the evidence showed a
great deal more than a commitment to aggressive fund-
raising.
‘*Participation in a criminal conspiracy need not be
proved by direct evidence; a common purpose and plan may
be inferred from a ‘development and collocation of circum-
stances’.’’ Glasser v. U.S., 314 U.S. 60, 80 (1942), quoting
U.S. v. Manton, 107 F.2d 834, 839 (2d Cir. 1938) cert.
denied, 309 U.S. 664 (1940). Accord, U.S. v. Schoenhut,
076 F.2d 1010, 1027 (3d Cir.), cert. denied, 47 U.S.L.W.
3332 (1978).
At trial, eleven lessors testified to the demands made
of them by the appellants. Although the ‘‘shake-down’’
techniques were not always identical,® the basic pattern of
appellants’ demanding a specific amount, generally based
on a percentage of the lessors’ income under the lease,
remained essentially constant. Particularly persuasive evi-
dence of joint action is the testimony of several lessors
who dealt with two or more of the appellants.
One lessor, Mr. James C. Poole, testified that Cerilli
demanded $2,000 in cash from him and that Poole made this
payment at Cerilli’s home in the presence of Yackovich.
William Ramaley testified that he met with Buffone who
demanded $700 and that, during this meeting, Cerilli
entered the room and was introduced to him. The follow-
ing year Yackovich contacted him and demanded 5% of the
amount Ramaley had received under his PennDOT lease in
the last year.
Walter Seigfried testified that he met with Buffone
who told him, ‘‘I am the hatchet man, we want 3% of what
you made last year.’’ After some argument, Seigfried
agreed, but determined that 3% of his earnings came to
$529 rather than the $750 that Buffone demanded. He,
9. For example, different lessors were asked for different percentages of
their income under the leases. Also, lack of coordination among the appel-
lants sometimes led to contradictory demands upon the same lessor.
Al2
13
therefore, called Yackovich to make sure that the $525
figure was adequate. Yackovich, after coming to Seig-
fried’s home and reviewing his records, accepted a check
for $525. Seigfried then met with Cerilli to determine when
his equipment would be put back to work.
Paul Caletri testified that after Buffone or another
assistant superintendent had demanded $125, he went to see
Buffone, but was taken into Yackovich’s office because
Buffone was not in. Caletri complained that he had not
earned $125 in the previous year and Yackovich looked at a
ledger to determine how much Caletri had earned and when
money was last demanded of him. Yackovich told him that
he would have to discuss the matter with Cerilli and took
Caletri into Cerilli’s office. After a discussion with Cerilli,
Caletri agreed to pay $75. At this meeting, Yackovich ex-
plained the initial $125 demand by stating that Buffone
‘had things all screwed up,’’ but that the following year
‘*things would be better.”’
There was also testimony from another Assistant
Superintendent, Mario Bidese, that Cerilli, Yackovich and
Buffone had given him instructions with respect to obtain-
ing money from lessors. On another occasion, Yackovich
instructed him to sell certain tickets that Cerilli had given
Bidese, but not to sell them to the lessors because, accord-
ing to Yackovich, ‘‘we’ll take care of that.’’ Bidese also
testified that during 1971 and 1972 there were meetings
between the superintendent and the assistant superintend-
ents every week or every other week, that fundraising was
discussd at these meetings, and that Cerilli, Buffone and
Yackovich made statements at these meetings to the effect
that ‘‘the contractors weren’t coming up with the money
like they used to under the Republicans.’’
This evidence more than supports the finding of a con-
spiracy to extort money from the lessors and the participa-
tion of Cerilli, Yackovich and Buffone in this conspiracy.
The evidence of Shurina’s participation in the con-
spiracy came primarily from Harry Graham, a PennDOT
Al3
EI EOD'S'SS SS 7
14
lessor, who testified that Shurina called Graham at his
home and asked Graham to meet with him. At this meeting,
Shurina told Graham that he owed $470. After Graham
complained, Shurina replied, ‘‘ Well, I know what you made
. . . [know how much your truck worked, and I know how
much you made.’’ Shurina then looked at something in his
briefease and repeated the demand for $470. Graham
Stated that he agreed to pay that amount “‘because I wanted
to work.’’ This testimony is clearly adequate to support
Shurina’s conviction on the substantive Hobbs Act count.
We hold also that, because this transaction fits so closely
into the pattern of extortion already described, it is an
adequate basis upon which the jury could find that Shurina
was a member of the conspiracy.
C. Interstate Commerce
The evidence established that all the lessors had bought
fuel for their equipment that had travelled in interstate
commerce. Most of the lessors also testified that they had
purchased equipment and/or supplies that had travelled in
interstate commerce, Appellants argue that this evidence
is insufficient to meet the interstate commerce component
of the Hobbs Act. The Act punishes anyone who ‘‘in any
way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by
robbery or extortion... .”’
The Supreme Court has stated that this language mani-
fests a Congressional purpose *‘to use all the constitutional
power Congress has to punish interference with interstate
commerce by extortion, robbery or physical violence.’’
Stirone v. U.S., 361 US. 212, 215 (1959). In Stirone, a
proprietor of a ready-mixed concrete business in Pennsyl-
vania who brought sand from outside of Pennsylvania was
the victim of extortion. The Court stated:
Had Rider’s business been hindered or destroyed, in-
terstate movements of sand to him would have slack-
ened or stopped. The trial jury was entitled to find
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15
that commerce was saved from such a blockage by
Rider’s compliance with Stirone’s coercive and illegal
demands. It was to free commerce from such destruc-
tive burdens that the Hobbs Act was passed.
Id.
This court has held, ‘‘It is not necessary that the pur-
pose of the extortion be to affect interstate commerce, .. .
but only that one of the natural effects thereof be an ob-
struction of that commerce.’’ U.S. v. Addonizio, 451 F.2d
49, 77 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972).
‘‘[W]here the resources of an interstate business are
depleted or diminished ‘in any manner’ by extortionate
payments, the consequent impairment of ability to conduct
an interstate business is sufficient to bring the extortion
within the play of the Hobbs Act.’’? U.S. v. Mazzei, 521
F.2d at 642; U.S. v. Addonizio, 451 F.2d at 77; U.S. v.
Provenzano, 334 F.2d 678, 692-93 (3d Cir.) cert. denied,
379 U.S. 997 (1964). ‘All that is required to bring an
extortion within the statute is proof of a reasonably prob-
able effect on commerce, however minimal, as result of the
extortion.’”? U.S. v. Spagnola, 546 F.2d 1117, 1119 (4th
Cir. 1976) (per curiam) (footnote omitted), cert. denied,
433 U.S. 909 (1977); U.S. v. Santoni, 585 F.2d 667, 672
(4th Cir. 1978). See also, U.S. v. Nakaladski, 481 F.2d
289 (5th Cir), cert. denied, 414 U.S. 1064 (1973) ; Carbo
v. U.S., 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S.
953 (1964). ‘‘Congress was as much concerned with the
threatened impact of the prohibited conduct as with its
actual effect.’’ U.S. v. Staszcuk, 517 F.2d 53 (7th Cir.)
(in bane), cert. denied, 423 U.S. 837 (1975).
The evidence presented at trial meets these tests. The
payments made here clearly resulted in a depletion of re-
sources thereby reducing the lessors’ capacity to make
their purchases of fuel and supplies in interstate com-
merce. Appellants contend that the ‘‘depletion of re-
sources’’ test should only be applied where the victim of
the extortion is itself an interstate business.
16
We reject such a limitation as being inconsistent with
Congress’ purpose ‘‘to use all the constitutional power
Congress has to punish interference with interstate com-
merce. ...”’ Sttirone v. U.S., 361 U.S. at 215. We per-
eeive no meaningful distinction between the effect on in-
terstate commerce in the Stirone situation where money
was extorted from a concrete supplier who bought sand
from out of state and the situation here where fuel and
supplies are purchased from out of state. This Court has
already held that extorting money from a tavern owner
has the natural effect of diminishing the owner’s ability to
purchase liquor originating in interstate commerce and
this natural effect is a sufficient basis for conviction under
the Hobbs Act even though there was no evidence of a de-
cline in actual liquor purchases. U.S. v. Starks, 515 F.2d
112 (3d Cir. 1975).° In U.S. v. Tropiano, 418 F.2d 1069
(2d Cir. 1969), the court held that extortion from rubbish
collection business limited that business’ ability to pur-
chase receptacles and trucks originating from out of state
and that this was a sufficient effect on interstate commerce
to support a Hobbs Act conviction. Although the effect on
interstate commerce proven here is certainly not very large,
the Hobbs Act does not proscribe only those extortions that
have a large effect on commerce. Because there is adequate
evidence to establish that there was some effect on com-
merce, the convictions here were properly supported.”
10. There was a decline in the victim’s resales of liquor.
11. For the reasons given above, the district judge’s instructions were
also correct. The core of those instructions is contained in the following
excerpt:
I instruct you instead that you may find interstate commerce with
the meaning of these instructions if you find beyond a reasonable doubt
that the victim purchased goods in interstate commerce and that the
ne os Plane extorted from him; then, as a matter of law, commerce was
affected.
_ The district judge’s ruling as a matter of law that commerce was affected
if the requisite facts were found by the jury is entirely proper. See U.S. v.
Lowe, 234 F.2d 919 (3d Cir.), cert. denied, 352 U.S. 838 (1956); U.S. »v.
aan 451 F.2d 1167, 1170 (2d Cir. 1971), cert. denied, 405 U.S. 1070
Al6
17
IV. Unper Coxor or Orricia, Ricut
The dissent argues that this court and others have im-
properly held that, where extortion under color of official
right is charged, one need not prove that the payment was
obtained by force, fear or duress. See U.S. v. K emny, 462
F.2d 1205 (3d Cir. 1972). Since the district judge in-
structed the jury on the basis of this circuit’s well-settled
law in this regard, the dissent contends that the appellants’
conviction must be reversed.
Because this contention was not advanced by the ap-
pellants either in their briefs or at oral argument, we
would generally not consider it on our own initiative. Also,
the proof of coercion in this case is overwhelming. More-
over, as a panel, we are not free to overrule what the dis-
sent recognizes to be the clear law of this circuit. Since
we believe that this circuit has properly decided the ques-
tion in issue here, we do not believe that rehearing in banc
is necessary.
The Hobbs Act definition of extortion explicitly in-
cludes the obtaining of property by any of the following:
‘‘wrongful use of actual or threatened force, violence, or
fear, or under color of official right.’’}*_ Since the dissent
argues that extortion under color of official right (at least
outside of the context of an improper fee) requires proof
of some element of coercion, it is essentially arguing that
a disjunctive reading of the relevant statutory language
is incorrect. Professor Ruff, upon whose writing the dis-
sent heavily relies, states:
This task [of asserting that a disjunctive reading
of the Hobbs Act is improper] is complicated, how-
ever, by the necessity of arguing not that an alterna-
tive interpretation of the operation language is more
consistent with the legislative intent, but that the lan-
guage, in effect, should be struck from the Act. If one
adopts the usual course and attempts to give meaning
12. 18 U.S.C. §1951(b)(2) (emphasis supplied). The full text is set
a.
out in note 1, supr
Al7
18
to all the statutory language, it is hard to challenge
the result reached by the courts."
The argument tpat these words should be, by judicial
fiat, ‘‘struck from the Act,’’ is based on the Hobbs Act’s
legislative history. Yet the dissent concedes that there is
no explicit discussion anywhere in the legislative history of
the ‘under color of official right’’ language. The dissent
asserts, however, that the statutory language was in large
part derived from New York’s extortion statute and that
New York courts have drawn a sharp distinction between
bribery and extortion. The cases cited by the dissent on
this point, however, were decided after the enactment of
the 1934 statutory predecessor to the Hobbs Act that is
the source of the ‘‘under color of official right’’ language
and, therefore, these cases shed no light on the congres-
sional purpose behind this language. While it is true that
the New York statute defined extortion under color of
official right rather narrowly, we are not prepared to in-
corporate that narrow definition at this time. Before a
court decides that such broad language was intended to
have so constricted a meaning, more explicit direction must
be available either in the form of actual statutory language
or persuasive legislative history. We have neither here.
Moreover, all the circuit courts that have addressed the
issue have agreed with this court’s interpretation in
Kenny. See cases cited by the dissent at p. 21 n.5. AL
though modern theories of statutory construction have ad-
vanced the state of the art significantly in recent years,
we believe that it is still proper for a court to construe an
unambiguous statute according to the clear meaning of its
terms particularly where every other appellate court has
so construed it and where, despite the dissent’s assertions,
the legislative history is silent as to any contrary congres-
sional intent. If language is to be “struck from the Act,’’
this is work for the Congress, not for the courts.
13. Ruff, Federal Prosecution of Local Corruption, 65 Georgetown Law
Journal 1171, 1197 (1977) (emphasis supplied).
Al8
OO SOU“ ;
19
V. Conciusion
‘or the foregoing reasons, appellants’ judgments of
sentence will be affirmed.
Apams, Circuit Judge, Concurring.
I concur in the result reached by Judge Higginbotham,
and join in his fine opinion. I write separately in order to
note that in light of the issue raised and arguments ad-
vanced by the dissent, it was and is my view that the Court
should rehear this ease en banc
The point raised by the dissent was not presented in
the trial court, nor was it briefed or argued in this Court.
If a panel of this Court is to resolve a criminal appeal on
the basis of its answer to this question, it seems unwise,
at least to me, to fail to give the parties an opportunity to
address it. For an appellate court to decide an important
matter such as the present one, sua sponte, without the
benefit of argument by counsel, is, I believe, neither in the
interest of the parties nor the judicial system.
Having noted my position in this regard, I am of the
view that the approach previously taken by this Court, by
all other courts that have considered the question, and by
the majority here, is correct: the Hobbs Act may be used
to reach the type of activity involved in the present case.
But I do not pretend to be so certain of my understanding
of the statute and the intent of Congress in enacting it
that I am prepared to dispense with the assistance of the
parties in deciding the issue. It is a basic premise of our
legal system that judges are open to persuasion and that
it is the role of the advocate to persuade them. In the
present case the appellants find themselves confronted
with a decision apparently turning on our legal judgment
concerning an issue that they, for understandable reasons,’
1. Internal Operating Procedures of the Third Circuit, VIII.
2. The parties apparently did not address the issue. raised by the dissent
because they believed the question to have been definitively resolved by this
Al9
20
have not addressed. However confident we may be of the
rightness of our conclusions, we ought not to adhere to
them without affording the parties an opportunity to brief
and argue a controlling issue that was not injected into the
case until after the argument.
ALDISERT, Circuit Judge, Dissenting.
It is now seven years since this court decided the
seminal case of United States v. Kemny, 462 F.2d 1205 (3d
Cir. 1972), announcing a revolutionary interpretation of
the Hobbs Act, 18 U.S.C. § 1951." We stated therein that
a Hobbs Act violation based on extortion by a public official
need not include proof of threat, fear or duress. We found
no error in the following jury instruction: ‘*Eixtortion 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.’’ 2
2. (Cont’d.)
Court. See United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972). See also
which were not raised before the Court in Kenny—have merit, only the full
Court can reverse that result. Of course, if Kenny were not controlling here,
the panel, if it were so inclined, could reverse the conviction on the basis of
the dissent’s analysis, and no en banc rehearing would be necessary in order
to evaluate those arguments.
1. 18 U.S.C. § 1951 provides :
not more than $10,000 or imprisoned not more than twenty years, or both.
(b) As used in this section—
(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.
2. 462 F.2d at 1229,
A20
21
I describe our decision as revolutionary because it be-
came the country’s landmark case interpreting extortion
under the Hobbs Act and departed completely, without ben-
efit of in banc rehearing, from Judge Rosenn’s opinion for
the panel in United States v. Addonizio, 451 F.2d 49, 77
(3d Cir. 1971), cert. denied, 405 U.S. 936 (1972), in which,
discussing extortion by the mayor of Newark, it was stated
that ‘‘while the essence of bribery is voluntariness, the
essence of extorlion is duress.’’ (Emphasis added).
I believe this court was right in Addonizio, and that
Kenny erred both in determining the substantive law and
in reversing a panel decision without in banc consideration.
I would cure our error by having the full court reexamine
the Kenny rule in this case, and order a new trial because
the trial judge gave a K enny charge and refused an Ad-
donizio point for instruction.®
It is now my view that our interpretation in Kenny
and its progeny is not supported either by the legislative
intent underlying the Hobbs Act nor is it historically ac-
curate.* I believe that our failure to reexamine its rationale
has resulted in a perpetuation of erroneous law not only
in this circuit but in the First, Second, Fourth, Seventh,
Eighth and Tenth Circuits which have followed our lead
without setting forth a reasoned elaboration for their con-
clusions.®
3. The trial judge charged: “Color of official right is defined as the
taking by a public official of money not due him or his office, whether or not
the taking was accomplished by force, threats or the use of fear.” App. at
1255. The appellants requested the following point for charge: “Color of
official be in this Statute demands proof by the Government of a wrongful
use of lic office, that is, a coercive or oppressive use of office. The mere
fact that a Defendant held a public office and asked for money is not sufficient,
there must be involved a misuse of his office for an improper purpose, i.e., to
im money not due to that office or on account of it.” App. at 46.
4. I readily acknowledge that I had the opportunity of taking my present
stand in earlier cases of this court, particularly in United States v. Maszsei, 521
F.2d 639 (3d Cir.) (in banc), cert. denied, 433 U.S. 1014 (1975), in which
I joined Judge Gibbons’ dissent, an opinion that, in my view, moved somewhat
nearer the view I now adopt, but which nevertheless respected the Vitality
of Kenny. A famous statement of Justice Frankfurter provides me refuge :
“Wisdom too often never comes, and so one ought not to reject it merely
because it comes late.” Henslee v. Union Planters Bank, 335 U.S. 595, 600
(1949) (dissenting).
5. United States v. Hathaway, 534 F.2d 386, 393 (Ist Cir.), cert. denied,
429 U.S. 819 (1976); United States v. Trotta, 525 F.2d 1096, 1099-1100 (2d
A21
22
Ee
A year after deciding Addonizio, with less than one
page of discussion we affirmed the extortion conviction of
a public official without ‘‘proof of threat, fear, or duress.”’
Kenny, 462 F.2d at 1229. We said, ‘‘But while private per-
sons may violate the statute only by use of fear and public
officials may violate the act by use of fear, persons holding
public office may also violate the statute by a wrongful tak-
ing under color of official right.’’ Jd. Authority for this
disjoinder of the ‘‘force, violence, or fear’’ and the ‘color
of official right’’ phrases of § 1951(b)(2) was said to be
found in United States v. Nardello, 393 U.S. 286, 289 (1969) ;
United States v. Sutter, 160 F.2d 754, 756 (7th Cir. 1947) ;
State v. Begyn, 34 N.J. 35, 167 A.2d 161 (1961) ; and State
v. Weleck, 10 N.J 355, 91 A.2d 751, 759-760 (1952).
Nardello was an extortion case brought under the
Travel Act, 18 U.S.C. § 1952, holding that extortion under
the Act encompasses acts of private individuals who ob-
tain money by virtue of fear and threats. The decision was
essentially an interpretation of the § 1952(b)(2) proserip-
tion of ‘‘extortion .. . in violation of the laws of the State
in which committed or of the United States.”’ Rejecting
petitioners’ contention that their conduct was blackmail, not
extortion, under Pennsylvania statute, the Court defined
the federal crime of extortion:
5. (Cont’d.)
Cir. 1975), cert. denied, 425 U.S. 971 (1976) ; United States v. Price, 507
F.2d 1349, 1350 (4th Cir. 1974) ; United States v. Staszcuk, 502 F.2d 875,
877-78 (7th Cir. 1974), rev'd in part on other grounds en banc, 517 F.2d 53
(1975), cert. denied, 423 U.S. 837 (1976) ; United States v. Brown, 540 F.2d
364, 372 (8th Cir. 1976); United States v. Hall, 536 F.2d 313, 320-21 (10th
Cir.), cert. denied, 429 U.S. 919 (1976).
With the exception of Price (4th Cir.), all of the opinions cited Kenny
without providing further elaboration of the reasons for the disjunctive reading
of the “use of office” and the “duress” elements of extortion. Price cited no
authority and stated no rationale.
In United States v. Harding, 563 F.2d 299, 302-07 (6th Cir. 1977), cert.
denied, 434 U.S. 1062 (1978), the Sixth Circuit discussed at length the legis-
lative history of the Hobbs Act, the common law offense of extortion, the
law of extortion and bribery in New York and other States, as well as Corpus
Juris Secundum and Black’s Law Dictionary in reaching the conclusion that
“color of official right” need not be accompanied by “threats, force or
duress.” The analysis is similar to that in Kenny, and provides no independent
reason justifying federal intervention in prosecuting local corruption such as
t in the case at bar.
A22
23
Prosecutions under the Travel Act for extortionate of-
fenses involving only private individuals have been
consistently maintained. ... Although only private
individuals are involved, the indictment encompasses a
type of activity generally known as extortionate since
money was to be obtained from the victim by virtue of
fear and threats of exposure.... [W]e decline to give
the term ‘‘extortion’’ an unnaturally narrow reading,
. and thus conclude that the acts for which ap-
pellees have been indicted fall within the generic term
extortion as used in the Travel Act.
Nardello, supra, 393 U.S. at 295-96. Clearly, the decision
was tied to the Travel Act prohibition of extortion, and
nowhere supports the notion that public officials may com-
mit extortion without threat, fear or duress under § 1951.
Sutter reversed the conviction of a federal employee
charged with violating 18 U.S.C. 4171, a statute which pro-
hibited, but did not define, extortion. The court reasoned
that because ‘‘[t]here are no common law crimes within the
jurisdiction of the Federal Government,’’ and because
‘Congress did not see fit to define extortion in the terms
known to the common law . . . , extortion is used in its
common, ordinary sense as distinguished from the sense in
which it was known at common law.”’ Sutter, 160 F.2d at
756. After quoting Webster’s definition of extortion, the
court held,
Under this statute, a Federal employee is guilty only
if he uses his office to place another under compulsion
of fear, force or the undue exercise of power, so that
such person parts with something of value unwillingly
and involuntarily. It is the oppressive use of official
position that is the essence of this offense.
Id.
State v. Begyn, in obiter dictum, briefly discussed ex-
tortion under New Jersey statute and common law even
A23
24
though Begyn had not been tried for extortion. State v.
Begyn, 167 A.2d at 166-67. State v. Weleck, likewise, dis-
cusses New Jersey statutory and common law extortion.
Neither of these cases should be a ground for the interpre-
tation of a federal statute enacted years before the cases
were decided.
All of this might be relevant to the interpretation of
18 U.S.C. § 1951 if it were assumed that the Hobbs Act in-
corporated the common law definition of extortion. Un-
fortunately, the cases cited by the Kenny court beg that
question. Indeed, the Supreme Court in Nardello held that
the Travel Act offense of extortion was not equivalent to
the common law offense, as did the Seventh Circuit in
Sutter as to 18 U.S.C. § 171.8
A brief passage from State v. Begyn, supra, shows the
fragility of its relevance to the K enny conclusion:
The essence of [extortion under the common law] was
the receiving or taking by any public officer, by color
of his office, of any fee or reward not allowed by law
for performing his duties. The purpose would seem
to be simply to penalize the officer who non-innocently
insisted on a larger fee than he was entitled to or a
fee where none was permitted or required to be paid
for the performance of an obligatory function of his
office. The matter was obviously of particular impor-
tance in the days when public officials received their
compensation through fees collected and not by fixed
salary. Our early cases dealt with precisely this kind
of a situation.
Begyn, supra, 167 A.2d at 166. Obviously, that common
law definition was of less importance when public officials
received salaries, so that ‘ [i]n many States . . . 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.’’ Nardello, supra, 393
6. The dictum in Sutter is discussed in part V, infra.
A24
25
US. at 286. Nardello adopted the government’s suggestion
that under the Travel Act, ‘‘Congress intended that extor-
tion should refer to those acts prohibited by state law which
would be generically classified as extortionate, 1.e., obtain-
ing something of value from another with his consent in-
duced by the wrongful use of force, fear, or threats.’’ Td.
at 290. Such crimes are called extortion, blackmail, theft
by intimidation, or are classified ‘‘under the general head-
ing of offenses directed against property.’’ Jd. at 288-90.
Such an interpretation makes sense due to the Travel
Act’s proscription of ‘‘extortion, bribery, or arson,’’ mak-
ing all three punishable by a maximum of five years im-
prisonment. 18 U.S.C. §1952(b)(2). It would not make
sense under the Hobbs Act, which prohibits only robbery
and extortion, making both punishable by twenty years im-
prisonment. Recognizing that the Hobbs Act requires a
distinction between behavior which constitutes bribery and
acts constituting extortion, I believe it is also essential to
distinguish common law extortion from the crime that
Congress intended to punish under the Hobbs Act.
IT.
At bottom, then, we are faced with the interpretation
of a criminal statute. I am quick to concede that a purely
semantic approach to the statutory language can substan-
tiate a decision that no duress need be proved because the
statute provides: ‘‘induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right.’’ In an earlier era of our jurisprudential tradition
this literal interpretation might have carried.
In 1899 Holmes lamented, ‘‘We do not inquire what
the legislature meant; we ask only what the statute
means.’’" He would not voice this complaint today, for
although contemporary courts are fond of stating that
‘‘[t]he starting point in every case involving the construc-
7. Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417,
419 (1899).
A25
26
tion of a statute is the language itself,’ * methodology now
appears to abjure a strictly semantic approach. We have
played with the Mischief Rule of Heydon’s Case,’ the
Golden Rule,’® and the Literal Rule.’ We have dallied
with what American jurisprudence has called the ‘Plain
Meaning Rule.’’ ”
Impressive authorities have warned us not to depend
too much on the actual language of a statute. Cardozo
said that ‘‘[w]hen things are called by the same name it
is easy for the mind to slide into an assumption that the
verbal identity is accompanied in all its sequences by iden-
tity of meaning.’’'* Holmes told us: ‘‘A word is not a
erystal, transparent and unchanged, it is the skin of a
living thought and may vary greatly in color and content
according to the circumstances and the time in which it is
used.’’"* Learned Hand said ‘‘it is one of the surest in-
dexes of a mature and developed jurisprudence not to
make a fortress out of the dictionary ; but to remember that
statutes always have some purpose or object to accom-
plish, whose sympathetic and imaginative discovery is the
surest guide to their meaning.’’ ®
Current wisdom requires judges to ascertain the ‘‘leg-
islative intent,’’ a task somewhat akin to pinpointing the
intent of a testator or of disputing parties to a contract.
Proper judicial construction, in the modern view, requires
recognition and implementation of the underlying legisla-
8. International Brotherhood of Teamsters v. Daniel, — US. —, 47
U.S.L.W. 4135, 4136 (January 16, 1979).
9. 3 Co. 7a, 76 Eng. Rep. 637 (Ex. 1584).
10. See, e.g., River Wear Commissioners v. Adamson, 2 App. Cas. 743,
764-65 (1877) (Lord Blackburn).
11. See, e.9., Vacher & Sons, Ltd. v. London Soctety of Compositors,
[1913] A.C. 107, 121-22 (Lord Atkinson).
12. Caminetti v. United States, 242 U.S. 470, 485 (1917) (Day, J.);
see Hamilton v. Rathbone, 175 U.S. 414, 419-21 (1899) (Brown, J.).
(1935) Lowden v. Northwestern Nat'l Bank & Trust Co., 298 U.S. 160, 165
i4. Towne v. Eisner, 245 U.S. 418, 425 (1918).
105) Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404
(
A26
27
tive purpose; the judge, the theory holds, must accommo-
date the societal claims and demands reflected in that
purpose.’® To do this, as Justice Roger J. Traynor puts it,
we need ‘‘literate, not literal’’ judges,'’ lest a court make
a construction within the statute’s letter, but beyond its
intent.'®
This approach to statutory precept demonstrates a
fundamental difference in the judicial process today from
that of a half century past. Today, what the legislature
has said is not as important as what it intended. Its
words will be respected, it is true, but its intentions will be
discovered and given equal, if not superior, respect. Very
seldom do we now encounter the watchwords of another
day: ‘‘If the words are plain, they give meaning to the
act, and it is neither the duty nor the privilege of the
courts to enter speculative fields in search of a different
meaning.’’'® Rather, we now say, ‘‘ When aid to construe-
tion of the meaning of words, as used in the statute, is
available, there certainly can be no ‘rule of law’ which
forbids its use, however clear the words may appear on
‘superficial examination.’ ” 2° That we no longer follow the
rigid semantic approach is sound, because in the common
law tradition a rule from case law is never considered in
vacuo. The reason for the rule is always considered. In
sum, the purpose, the subject matter, the context, and the
legislative history appear to be the major aids in consider-
ing statutory precept today. It is to the legislative his-
tory of the Hobbs Act that I now turn.
16. See Train v. Colorado Public Interest Research Group, Inc., 426 U.S.
1, 9-10 (1976). See also Levi, An Introduction to Legal Reasoning, 15
U. Cut. L. Rev. 501, 520-23 (1948) ; Murphy, Old Maxims Never Die: The
“Plain-meaning Rule” and Statutory Interpretation in the “Modern” Federal
Courts, 75 Corum. L. Rev. 1299, 1316-17 (1975).
ms Traynor, Reasoning in a Circle of Law, 56 Va. L. Rev. 739, 749
(1970).
18. See, ¢.g., Muniz v. Hoffman, 422 U.S. 454, 469 (1975): United
Housing Foundation, Inc. v. Forman, 421 U.S. 837, 848-49 (1975): Philbrook
v. Glodgett, 421 U.S. 707, 713-14 (1975).
19. Caminetti v. United States, 242 U.S. 470, 490 (1917).
20. Train v. CPIRG, Inc., supra note 16, 426 US. at 10.
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28
ITI.
Judge Gibbons’ dissenting opinion in United States v.
Maezei, 521 F.2d 639, 651-55 (3d Cir.) (in bane), cert.
denied 423 U.S. 1014 (1975), sets forth in detail the legis-
lative history of 18 U.S.C. § 1951(b)(2), the extortion
section of the Hobbs Act under which appellants were con-
victed. A summary of the important points in that dis-
cussion will be sufficient.
The word ‘‘extortion’’ first appeared in the Anti-
Racketeering Act of 1946 which amended the Anti-
Racketeering Act of 1934.2 Although the 1934 statute did
not use the term, it did proscribe what must have been in-
tended as common law extortion, that is, obtaining property
“funder color of official right.’ The latter language has
been carried forward without change since the initial Act
so that whatever congressional intention may be ascribed
to that term must be found in the records of the Seventy-
third Congress.
Nothing in the legislative history shows that the 1934
Act was intended to permit federal authorities to police
influence peddling in the political processes of the states.
Indeed, whatever legislative history there is suggests a
contrary conclusion. The 1934 Act originated in the Senate
as S. 2248, 73d Cong., 2d Sess. (1934), reprinted in 78 Cona.
Rec. 457-58 (1934), and contained no reference to extortion
by ‘‘color of official right.’’ After passing the Senate, 78
Cong. Rec. 5734 (1934), it was submitted in the House,
where it was completely amended and a new bill substituted’
The reasons for this amendment have been described by
the Supreme Court in United States v. Teamsters Local
807, 315 U.S. 521, 529 (1942), as follows:
After the bill had passed the Senate, however, repre-
sentatives of the American Federation of Labor ex-
pressed fear that the bill in its then form might result
21. Act of July 3, 1946, ch. 537, 60 Stat. 420.
22. Act of June 18, 1934, ch. 569, 48 Stat. 979.
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in serious injury to labor, and the measure was re-
drafted by officials of the iepartment of Justice after
conferences with the President of the Federation.
With the House revision the term “color of official right’?
appeared for the first time.
The House Report, submitted along with its new
version of S. 2248 (H.R. 6926), was short. In addition to
the text of the new bill, it reprinted a letter written by the
Attorney General to the Chairman of the House Judiciary
Committee. H.R. Rep. No. 1833, 73d Cong., 2d Sess. 2
(1934). In United States v. Teamsters Local 807, the
Supreme Court placed heavy emphasis on this letter as a
tool to interpret the 1934 Act. The substance of the letter
is contained in these paragraphs:
The original bill was susceptible to the objection
that it might include within its prohibition the legiti-
mate and bona fide activities of employers and em-
ployees. As the purpose of the legislation is not to
interfere with such legitimate activities but rather to
set up severe penalties for racketeering by violence,
extortion, or coercion, which affects interstate com-
merce, it seems advisable to definitely exclude such
legitimate activities.
As the typical racketeering activities affecting
interstate commerce are those in connection with price
fixing and economic extortion directed by professional
gangsters, we have inserted subparagraphs (a) and (b),
making such activities unlawful when accompanied by
violence and affecting interstate commerce.
The Sherman Antitrust Act is too restricted in its
terms and the penalties thereunder are too moderate
to make that act an effective weapon in prosecuting
racketeers. The antiracketeering bill would extend the
Federal jurisdiction in those cases where racketeering
acts are related to interstate commerce and are there-
fore of concern to the Nation as a whole.
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Judge Gibbons’ opinion pointedly referred to a com-
ment by Congressman Oliver of New York, during the floor
debate after the bill had cleared committee: ‘This is merely
the creation of an extortion statute against those who ex-
tort money by force or violence from those engaged in
interstate commerce.’’ 78 Cona. Rec. 11402 (1934).
The drafters of the 1934 Act took the term ‘‘color of
official right’’ from the New York Penal Law of 1909 which
defined the crime of extortion as follows:
Extortion is the obtaining of property from an-
other, or the obtaining the property of a corporation
from an officer, agent or employee thereof, with his
consent, induced by a wrongful use of force or fear,
or under color of official right.
Compare this language with § 2(b) of the 1934 Act:
Obtains the property of another, with his consent,
induced by wrongful use of force and fear, or under
color of official right;
The similarity between the definitions is consistent with
legislative history. Congressman Hobbs of Alabama,
sponsor of the bill, stated that ‘‘there is nothing clearer
than the definitions of robbery and extortion in this bill.
They have been construed by the courts not once, but a
thousand times. The definitions in this bill are copied from
the New York Code substantially.’’ 91 Conc. Rec. 11900
(1945). Congressman Hancock of New York stated: ‘‘The
bill contains definitions of robbery and extortion which fol-
low the definitions contained in the laws of the State of
New York.’’? Id. Judge Gibbons summed up the relevance
of New York law as follows:
While the meaning attributed to the term ‘‘color
of official right’? by the New York legislature and
courts is by no means dispositive of the congressional
23. Penal Law of i909, § 850, as amended, Laws of 1917, ch. 518, reprinted
in N.Y. Penal Law, appendix §850 (McKinney 1967).
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2 ee i 2 hn .
31
intent in using the phrase, it is highly persuasive both
because its meaning in New York has long been settled
and because the legislative history indicates no inten-
tion to change that meaning.
521 F.2d at 653. It is therefore critical to examine the
New York law of extortion.
IV.
Advice has been offered by Professor Charles F. C.
Ruff, former Direcior, Watergate Special Prosecution
Force, that New York made a clear distinction between
extortion ‘‘by a wrongful use of force or fear,’’ which was
punishable as a felony, and extortion ‘‘under color of offi-
cial right’? which was a misdemeanor:
Extortion under color of official right was in turn
divided into two parts: oppression, defined as the un-
lawful and malicious arresting of an individual or
seizure of his property,” and extortion, defined as a
public officer’s asking, receiving, or agreeing to receive
a fee in excess of that allowed by statute or when no
such fee is authorized.” Both of these offenses were °
misdemeanors, whereas the larceny-type offenses were
felonies carrying sentences of up to twenty years in
prison.”
75. See N.Y. Penal Law app. § 854 (McKinney 1967).
76. Id. § 855.
77. Id. § 852.(24)
The relationship of the New York Penal Code to the
Hobbs Act definition of extortion is of paramount im-
portance in considering the elements of the § 1951 offense
because of two fundamental precepts of statutory interpre-
tation. First, it is elementary that the ultimate aim is to
ascertain the intention of Congress in the enactment of a
24. Ruff, Federal Prosecution of Local Corruption: A Case Study in the
Making of Law Enforcement Policy, 65 GrorcETOWN L.J. 1171, 1183 (1977).
— Ruff is now Assistant Deputy Attorney General of the United
tates.
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statute, and that intention, when discovered, must prevail.
‘*In the interpretation of Statutes, the function of the court
is easily stated. It is to construe the language so as to
give effect to the intent of Congress.’’ United States v.
American Trucking Associations, 310 U.S. 034, 542 (1940).
Second, any ambiguity which exists in a penal statute must
be construed in faver of the defendant. Chief Justice
Marshall stressed the predominance of this rule over other
“‘maxims or rules for the construction of statutes’:
The rule that penal laws are to be construed strictly,
is perhaps not much less old than construction itself.
It is founded on the tenderness of the law for the
rights of individuals; and on the plain principle, that
the power of punishment is vested in the legislative,
not in the judicial department.
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95
(1820). The Supreme Court has reaffirmed Chief Justice
Marshall’s admonition consistently through the years, as
recently as United States v. Naftalin, — US. —, 47
U.S.L.W. 4574, 4577 (May 21,1979). For our purposes, the
reasons for the rule are as important as the rule itself. An
examination of these reasons demonstrates that this court
did violence both to the rule and its reasons when we opted
for the broad interpretation of extortion in K emmy. When
a choice is to be made between two readings of a federal
criminal statute, ‘‘it is appropriate, before we choose the
harsher alternative, to require that Congress should have
spoken in language that is clear and definite.”? United
States v. Universal C.1.T. Credit Corp., 344 U.S. 218, 222
(1952).
I believe that the congressional intent underlying the
Hobbs Act is clearly and unambiguously disclosed by its
legislative history. Not only is there a total lack of specific
congressional intent that the Act apply to state and local
public officials in the absence of violence or coercion, but
the legislative history indicates that Congress intended to
rely on the New York law of extortion for its definition
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of the crime. To hold otherwise is to defy the Supreme
Court’s admonition that ‘‘because criminal punishment
usually represents the moral condemnation of the com-
munity, legislatures and not courts should define criminal
activity.’’ United States v. Bass, 404 U.S. 336, 348 (1971)
(my emphasis). It is said that this policy embodies an
instinctive revulsion against men languishing in prison un-
less the lawmaker has clearly said they should. Jd. Thus,
one of the basic errors we committed when we embarked
on the Kenny journey was to ignore the mandate that
‘‘where there is ambiguity in a criminal statute, doubts are
resolved in favor of the defendant.’’ Adamo Wrecking Co.
v. Umited States, 434 U.S. 275, 285 (1978).
Extortion under color of official right under the New
York schema must implicate (1) oppression, as therein de-
fined, and not applicable in Kenny or here, (2) extortion
in the sense of the original common law formulation, de-
fined as a publie officer’s asking, receiving, or agreeing to
receive a fee where no fee is authorized or in excess of that
allowed by statute, or (3) extortion by wrongful use of
force or fear. Unless money is received under a specific
misrepresentation that it is an authorized fee, a public
official cannot be guilty of extortion under New York law
in the absence of duress.
The salient feature of New York extortion law is the
unusually clear distinction between the offenses of bribery
and extortion. This is manifested in People v. Dioguardi,
8 N.Y.2d 260, 168 N.E.2d 683, 203 N.Y.S.2d 870 (1960),
which held that bribery and extortion were ‘‘mutually ex-
clusive crimes’’ and that a defendant charged with extor-
tion was entitled to acquittal if the jury found that he had
been bribed. Id., 8 N.Y.2d at 273-74, 168 N.E.2d at 692,
203 N.Y.S.2d at 881-82. The court reasoned that bribery
‘“‘makes the payor equally as guilty as the payee, which
could never be the case with extortion,”’ and that the payee
could not be guilty of extortion if the payor were guilty
of bribery, td. (emphasis added), relying on People v. Feld,
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262 App. Div. 909, 28 N.Y.S.2d 796 (1941), and on Horn-
stem v. Paramount Pictures, 22 Mise. 996, 1003, 37 N.Y.S.2d
404, 412 (Sup. Ct. 1942), aff'd 266 App. Div. 659, 41
N.Y.S.2d 210, aff’d 292 N.Y. 468, 55 N.E.2d 740, both of
which were decided well before the enactment of the Hobbs
Act. The holding of People v. Feld was that bribery of a
labor representative and extortion were mutually exclusive
crimes; Hornstein held that ‘‘the essence of bribery is the
voluntary giving of something of value to influence the
performance of official duty, whereas the essence of extor-
tion is duress.”’ Dioguardi, supra, 168 N.E.2d at 692.
Although this nuance of New York law has been criti-
cized as a ‘‘unique interpretation’? which should not re-
strict federal courts applying the Hobbs Act, I believe it
is totally consistent with the common law origins of the
offenses. Moreover, congressional reliance on New York
law demands adherence to that interpretation, however it
may differ from the law of other states.
V.
Our conclusion in Kenny is not justified by any refer-
ence to the common law origins of the crimes of extortion
and bribery. I make this statement with full awareness
that true common law definitions are somewhat elusive.
The historical basis of extortion, a common law mis-
demeanor, was the corrupt collection of an unlawful fee
under color of public office.* The requirement that the
unlawful fee be associated with the office held by the recipi-
25. Stern, Prosecution of Local Political Corruption Under the Hobbs
Act: The Unnecessary Distinction Between Bribery and Extortion, 3 Seton
Hau L. Rev. 1, 13 (1971).
Similarly, it is said that “[t]he common-law misdemeanor of extortion
consists of the corrupt taking of a fee by a public officer, under color of his
office, where no fee is due, or not so large a fee is due, or the fee is not yet
due.” W. LaFave and A. Scort, HANDBOOK GN CRIMINAL Law 704 (1972).
It is also emphasized that at common law the money or property he obtained
“under the pretense that the officer was entitled thereto by virtue of his office.”
III R. ANpeRson, WHARTON’s CRIMINAL Law AND Procepure 790-9] (1957).
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35
ent is central to an understanding of the traditional Black-
stonian definition generally expressed in broader language.
Professor Perkins advises:
A fee collected under color of office is unlawful
if—(1) the law does not authorize a fee for the pur-
pose for which this fee is collected, or (2) a fee is
authorized but only in an amount smaller than that
collected, or (3) a fee might be authorized but none
was due at the time this fee was collected. For this
reason Blackstone defined extortion as ‘‘an abuse of
public justice, which consists in any officer’s unlawfully
taking, by colour of his office, from any man, any
money or thing of value that is not due to him, or
more than is due, or before it is due.’’ Since a fee is
unlawful under any one of the three circumstances
the simpler wording is preferred for purposes of
definition.?”
27. Id. at 367-68 (footnotes omitted). Professor Ruff reports:
The historical roots of this offense may be traced to the Roman
leges repetundarum, which, beginning in 171 B.C., prohibited _mag-
istrates and, later, other public officials from profiting by their positions.
A comparable offense appeared in England as early as 1275. Chapter 26
of the Statute of Westminister I, entitled “Extortion by the King’s Offi-
cers,” provided in part that “no Sheriff, nor other the King’s Officer, take
any reward to do his Office, but shall be paid of that which they take of
the King; and he that so doth, shall yield twice as much, and shall be
punished at the King’s Pleasure.” The bulk of this statute still remains
in force, although its specific references to sheriff and coroners have been
recodified in other legislation.
The earliest recorded decision interpreting the extortion provision of
the Statute of Westminster I arose in the context of a civil suit by Lewis
Dive, sheriff of Bedford, against John Maningham in the amount of 40
pounds, representing a bond for the release “rs trial of a prisoner in
the sheriff's custody. In finding for the de endant, Chief Justice
Mountague conchedad, in part, that the plaintiff had demanded payment
improperly colore officii and stated:
[For] this Word colore officii sui is always taken in malem partem,
and signifies an Act badly done under the Countenance of an Office,
and it bears a dissembling —_ of Duty, and is properly called
Extortion. As if an Officer will take more for his Fees than he
ought, this is done colore offictt sui, but yet it is not Part of his Office,
and it is called Extortion, which is no cther than Robbery, but it is
more odious than Robbery, for Robbery is apparent, and always hath
the Countenance of Vice, but Extortion, being equally as great a Vice
as Robbery, carries the Mask of Virtue, and is more difficult to be
tried or discerned, and consequently more odious than Robbery.
Ruff, supra, note 24 at 1179-80 (footnotes omitted ).
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36
Against the backdrop of this common law history, it
becomes important to understand exactly what Judge, later
Justice, Minton meant in United States v. Sutter, supra,
when, in dictum, he stated that at common law “‘color of
public office took the place of the force, threats, or pres-
sure implied in the ordinary meaning of the word extor-
tion.’’** If this statement means that no force, threat, or
pressure need be proved if the officer charged an official
fee when none was required by law or charged a fee larger
than that provided by law, it is proper. But if, outside
the context of charging an improper fee for the manda-
tory performance of official duty, the statement means that
one need not prove force, fear or duress at common law
to prove wrongdoing on the part of an official, then I agree
with Professor Ruff that this is ‘‘an explanation wholly
at odds with the true common law origins of the offense.’’
That a number of courts have subsequently parroted Min-
ton’s formulation * does not legitimate what was illegiti-
mate when first uttered. Error is not cured by repetition.
On the other hand, the common law misdemeanor of
bribery is an offense which may be committed both by the
giver and the recipient. It originated as an offense which
could only be committed by a judge or other person con-
cerned with the administration of justice but was broad-
ened in the eighteenth century to extend beyond the con-
duct of judicial officers. A bribe has been defined as
“‘something given for the purpose of improperly influenc-
ing official action, and either giving or accepting a bribe
constitutes bribery.’’ ™
There is an obvious correlation between the common
law offenses of bribery and extortion. Nevertheless, in
addition to the fact that both a bribe-giver and a brihe-
28. 160 F.2d at 756.
29. Ruff, supra note 24 at 1182.
30. See, ¢.9., Bianchi v. United States, 219 F.2d 182, 193 (8th Cir.),
cert. denied, 349 U.S. 915 (1955).
31. PERKINS, supra note 26, at 468-69. Accord WHARTON, supra note 26,
at 771-73.
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37
taker are guilty of bribery whereas the victim of extortion
is innocent, another distinction between the offenses is ap-
parent. The later development of the crime of extortion,
including blackmail, occurred “in order to plug a loophole
in the robbery law by covering sundry threats which will
not do for robbery. . . . [BJoth crimes equally require
that the defendant’s threats induce the victim to give up
his property, something which he would not otherwise have
done.’’** Thus, although both bribery and extortion origi-
nated as offenses related to performance of public office,
bribery is a victimless crime whereas extortion developed
along the lines of robbery.
At their tangent, the offenses of bribery and extortion
may both arise out of the same nucleus of operative facts.
A public official who corruptly accepts an unauthorized fee
for the performance of his official duty may be guilty of
both bribery and extortion. At the opposite extreme, how-
ever, the offenses bear little resemblance.
Accordingly, congressional references to New York’s
law of extortion in a statute which did not proscribe bribery
but was passed ‘‘to set up severe penalties for racketeer-
ing by violence, extortion, or coercion,”’ creating a twenty
year penalty, necessitate a Hobbs Act interpretation which
includes the element of fear, threat or duress. A public
official charged with extortion under the Hobbs Act should
be able to argue that although he did in fact receive some-
thing of value, it was given at the initiative of the donor,
and not as a result of force, fear or duress emanating from
the defendant. Thus, in an indictment for extortion, it is
logically and jurisprudentially sound to permit a defense
of bribery. To hold otherwise is to blur completely the
distinction between the two crimes. Our Kenny rule has
precisely that effect.
The government supports this result for an obvious
and self-serving reason. To obtain a conviction under the
Hobbs Act, with its possible twenty year sentence, the
32. LaFave & Scort, supra note 26, at 707.
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government must prove ‘‘robbery or extortion,”’ 18 U.S.C.
§ 1951(a); bribery is not illegal under the Hobbs Act. To
establish a federal case of bribery implicating a state
official, the government must resort to the Travel Act, 18
U.S.C. § 1952 (1970), which prohibits both bribery and
extortion. But the Hobbs Act jurisdictional base is much
broader than that of the Travel Act. An essential element
of any Travel Act offense is the requirement of travel in
interstate commerce, or the use of interstate commerce
facilities. Rewis v. United States, 401 U.S. 808, 812 (1971),
noted that Congress did not intend overly broad applica-
tion of the Travel Act which ‘‘would alter sensitive federal-
state relationships, could overextend limited federal police
resources, and might well produce situations in which the
geographic origin of customers, a matter of happenstance,
would transform relatively minor state offenses into fed-
eral felonies.’’
Prior to ascending the District Court bench in New
Jersey, Judge Herbert J. Stern was the government prose-
cutor in Kenny. In urging an expansive meaning of ex-
tortion in the prosecution of public officials under the
Hobbs Act, he wrote:
Under the Travel Act, the courts have required
deliberate, knowing interstate travel or the similar use
33. (a) Whoever travels in interstate or foreign commerce or uses any
facility in interstate or foreign commerce, including the mail, with intent
to—
(1) distribute the proceeds of any unlawful activity; or
_ (2) commit any crime of violence to further any unlawful
activity; or
(3) otherwise promote, manage, establish, carry on, or facilitate
the promotion, management, establishment, or carrying on, of any
unlawful activity, and thereafter performs or attempts to perform
any of the acts specified in subparagraphs (1), (2), and (3), shall
be fined not more than $10,000 or imprisoned for not more than five
years, or both.
(b) As used in this section “unlawful activity” means (1) any busi-
ness enterprise involving gambling, liquor on which the Federal excise
tax has not been paid, narcotics, or controlled substances (as defined in
section 102(6) of the Controlled Substances Act) or prostitution offenses
in violation of the laws of the State in which they are committed or of
the United States, or (2) extortion, bribery, or arson in violation of the
laws of the State in which committed or of the United States.
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of interstate facilities to achieve the illegal act. How-
ever, under the Hobbs Act it has been held that if, in
fact, the ‘‘extortion’’ affected interstate commerce,
there is a violation of the Act notwithstanding the
absence of an intent to have this effect, or even the
absence of any anticipation that such an effect might
result... .
Thus, in situations where interstate travel or use
of interstate facilities cannot be proven, or where the
knowing use of them by the public official cannot be
demonstrated, the federal government will often have
to prosecute local political corruption under the Hobbs
Act or not at all.™
But the fact that a government prosecutor who wants ‘‘to
prosecute local political corruption”’ finds it easier to estab-
lish federal jurisdiction under the Hobbs Act than under
the Travel Act cannot possibly form a reasoned basis for
obliterating the distinction between the separate crimes of
extortion and bribery or for affirming the Hobbs Act con-
victions of local public officials who were not permitted the
defense that they were bribed. Our tolerance of this
prosecutorial legerdemain is an indulgence in jurispruden-
tial anarchy at the expense of basic tenets of criminal law—
the presumption of innocence, the government’s burden in’
all prosecutions, and the basic maxim nullum crimen, nulla
poena. One charged with extortion, carrying a twenty
year Hobbs Act penalty, should have the option of defend-
ing on the basis that he is guilty only of bribery under the
Travel Act, carrying a five year penalty. This is an option,
in my view, explicitly granted by the Congress. It is an
option, unfortunately, which is substantially foreclosed by
our decision in Kenny.*
34. Stern, supra note 25, at 9-11 (footnotes omitted, emphasis added).
35. Although my analysis does not follow completely that of Judge
Luongo in Unsted States v. Kubacki, 237 F. Supp. 638 (E.D. Pa. 1965), I
am persuaded that he properly perceived that a public official charged with
extortion under the Hobbs Act should be able to defend on the basis that he
was guilty of bribery only.
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7h
The grave danger of our Kenny rule is its potential of
embracing myriad situations which threaten fundamental
federal-state relations and of creating very real tensions in
the traditional operations of political party fund raising.
The case at bar is illustrative of one set of circumstances.
United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert.
denied, 425 U.S. 971 (1976), illustrates another facet of the
problem. There, a municipal commissioner of public works
was charged with demanding that a firm of consulting engi-
neers contribute to the local Republican Committee. The
district judge dismissed the indictment because it did not
charge that there had been any adverse action, any threat
of action, or, indeed, any relationship between the demand
for contributions and any contract awarded by the defend-
ant. The Second Circuit reversed, relying on another of
Kemny’s progeny, United States v. Braasch, 505 F.2d 139,
151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975), stat-
ing, ‘‘So long as the motivation for the payment focuses
on the recipient’s office, the conduct falls within the ambit
of 18 U.S.C. §1951.’’ Trotta, supra, 525 F.2d at 1100. The
decision utilizes this far-reaching language:
[I]t does not matter whether Trotta ‘induces pay-
ments to perform his duties or not to perform his
duties.’’ Nor does it matter that payments may have
been induced simply by assertion of power or pressure
stemming from Trotta’s position as a public official.
United States v. Price, 507 F.2d 1349 (4 Cir. 1974).
To repeat, it is the use of the power of the public office
itself to procure the payments of money not owed to
the public official or his office that constitutes the
offense. This was adequately alleged; and we, there-
fore, hold that the indictment is sufficient on its face.
025 F.2d at 1100-01. Professor Ruff’s observations on this
holding are significant:
([I]f a public official who asks for a political con-
tribution from one who does, or may do, business with
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the government can be prosecuted on proof of those
facts alone, then the Hobbs Act has become an ex-
traordinary mechanism for controlling political activity
on the state and local levels... . If the Trotta opinion
means that a local government official commits extor-
tion by soliciting a contribution from an organization
that has or might have contracts with his agency, and
is thereby liable to be imprisoned for twenty years, one
may well ask whether a governor who attends a fund-
raising dinner and solicits contributions from the
businessmen present has committed a felony.*®
Applying his analogy to the case at bar, an intriguing
question comes to mind. The prosecutor in this case was
United States Attorney Richard Thornburgh who is now
Governor of Pennsylvania. Can it be said that Governor
Thornburgh, a man of the highest moral principles, would
be guilty of a Hobbs Act violation if he now were to appear
at a fundraising dinner and solicit contributions for his
political party from Pennsylvania businessmen? I think
not. But the Second Circuit believes that Kenny would
allow it because such an act would have been done under
color of office and there is no requirement of duress. I am
quick to add that this is a hypothetical case and is not set
forth here as an example of the facts at bar. But it is
exactly the type of ‘‘Hobbs Act run rampant’’ that should
immediately be checked by in banc reconsideration of this
court’s Kenny rule.
Accordingly, I dissent, and would order a new trial for
all appellants.
36. Ruff, supra, note 24 at 1196.
A True Copy:
Teste:
Clerr of the United States Court of Appeals
for the Third Circuit
(A.O. U. S. Courts, International Printing Co., Phila., Pa.)
A4l
ij
NN Le
A42
APPENDIX B
UNITED STATES COURT OF APPEALS
FoR THE Tarrp Circurr
Nos. 78-2105, 2106, 2107 & 78-2439
UNITED STATES OF AMERICA
vS.
EGIDIO CERILLI, Appellant in No. 78-2105
MAYLAN YACKOVICH, Appellant in No. 78-2106
JOHN SHURINA, Appellant in No. 78-2107
RALPH BUFFONE, Appellant in No. 78-2439
SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, ALDISERT, ADAMS,
GIBBONS, ROSENN, HUNTER, WEIS, GARTH and
HIGGINBOTHAM, Circuit Judges.
The petition for rehearing filed by EGIDIO CERILLI,
MAYLAN YACKOVICH, JOHN SHURINA and RALPH
BUFFONE, Appellants in the above entitled case having
been submitted to the judges who participated in the de-
cision of this court and to all the other available circuit
judges of the circuit in regular active service, and no judge
Sur Petition for Rehearing A43
who concurred in the decision having asked for rehearing
before the panel and a majority of the circuit judges of
the circuit in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing
is denied.
By the Court,
/s/ A. Leon Higginbotham, Jr.
A. LEON HIGGINBOTHAM, JR.
Circuit Judge
Dated: July 23, 1979
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.