Petition — French v. United States

& 0 A 4 rd 9 Supreme Court, U. S,

FILED

No.

SEP 25 1900

MICHAEL RODAK, JR, CLERK |

IN THE

Supreme Court of the United States

R. C. FRENCH,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS

EIGHTH CIRCUIT

SHAW, HowL_Lett & SCHWARTZ

CHARLES M. SHAW

225 S. Meramec, Suite 324T

Clayton, Missouri 63105

725-9700

Attorney for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED FOR REVIEW

I

WHETHER THE UNITED STATES COURT OF AP-

PEALS FOR THE EIGHTH CIRCUIT, AS EVIDENCED BY

ITS OPINION OF AUGUST 7, 1980, ERRED IN REVERS-

ING THE DECISION OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF MISSOURI

THAT GRANTED PETITIONER’S MOTION FOR JUDG-

MENT OF ACQUITTAL TO TWO COUNTS OF

VIOLATING 18 U.S.C. § 1951 (Hobbs Act Extortion) AND

THEREBY VACATED PETITIONER’S CONVICTION

ENTERED BY THE JURY AS TO THOSE COUNTS IN

THAT:

A. THE UNITED STATES GOVERNMENT

HAS FAILED TO ESTABLISH THAT THE

PETITIONER, R. C. FRENCH, WHILE A

CITY MARSHALL FROM THE CITY OF

ST. LOUIS, MISSOURI EXTORTED

MONEY UNDER COLOR OF OFFICIAL

RIGHT FROM CLAUDE TORREY, A

BAIL BONDSMAN, OF THE STATE OF

MISSOURI.

B. THE UNITED STATES GOVERNMENT

HAS FAILED TO ESTABLISH THAT BY

HIS BUSINESS DEALINGS WITH SAID

CLAUDE TORREY, THE PETITIONER,

R. C. FRENCH INTERFERRED WITH

INTER-STATE COMMERCE.

TABLE OF CONTENTS

Page

Ceti Gull ksaea was bens s4600 00 040 |

eh sb wha ce dese bedscstecsieccssn 2

hack ks ss sckinedecseeers ees viens 2

Son bc oss vncnansuseneses 3

Reasons for Granting the Writ .............ccececees 9

Chea eh hopes acco densoceccceseces 12

EE SE 12

Appendix:

Appendix A — Memorandum and Order of the

United States District Court for the Eastern

District of Missouri, Eastern Division, of January

11, 1980 in United States v. R. C. French......... A-l

Appendix B — Opinion of the United States Court

of Appeals, Eighth Circuit of Avgust 7, 1980 in

United States v. R.C. Fremch .......ccccscecees A-7

Appendix C — Order of United States Court of

Appeals, Eighth Circuit denying Appellee’s Peti-

tion for Rehearing and Rehearing En Banc, August

28, 1980 in United States v. R. C. French......... A-24

Cases Cited

Stirone v. United States, 361 U.S. 212, 218 (1960)...... 9

United States v. Nedley, 225 F.2d 350 (3d Cir. 1958).... 9

United States v. Addonizio, 451 F.2d 49, 72 (3d Cir.

1972); cert. denied 405 U.S. 936 (1972) reh. denied

ee rere De re errr

People v. Dioguardi, 8 N.Y.2d 260, 168 N.F.2d 683, 203

IU, EA SIs Bs DOUED Kab e ise edbveataneesen

United States v. Mazzei, 521 F.2d 639, 645 (3d Cir.

eT ee ee ne Seine prdsn kaw ans

United States v. Staszcuk, 517 F.2d 53 (7th Cir. 1975)

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

United States v. Price, 507 F.2d 1349 (4th Cir. 1974)

cert. denied, 423 U.S. 1014 (1975)...............

United States v. Braasch, 505 F.2d 139 (7th Cir. 1974)

cert. denied, 421 U.S. 910 (1975).......... cece

United States v. Adcock, 558 F.2d 397, 406 cert. denied,

SGT i et OTs 6s va ied ces cb aad es 2 dhe

United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972)

cert. denied, U.S. 914, 409 (1972) ...............

United States v. Cerilli, 603 F.2d 415, 426-437 (C.J. Al-

disert dissenting); cert. denied, 100 S.Ct. 728

CSO kis a da eek a EL CES Lehn a ee

United States v. American Trucking Association, 310

WF is ae EE & oh icida cacowesdubehonbasve

United States v. Bass, 404 U.S. 335, 348 (1971) ........

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) ...

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

United States v. Brecht, 540 F.2d 45 (2nd Cir. 1976)....

United States v. Emmons, 410 U.S. 396 (1973) ........

10

10

11

iii

Brotherhood of Railroad Trainmen v. Baltimore & O.R.

Dikg EP PE UTD cbc bcs ansckverasevciaes 11

Rewis v. United States, 401 U.S. 808, 872 (1971)....... 1}

United States v. Bass, 404 U.S. 336, 349 (1971) ........ 11

Statutes Cited

NS RS ere ree SEee PEt eee ee eee 2,3,9

Journals Cited

Ruff, Federal Prosecution of Local Corruption: A Case

Study in the Making of Law Enforcement Policy 65

Georgetown L.J. 1171, FISS CUSTT) .. 0. cc cecccccscecs 10

No.

IN THE

Supreme Court of the United States

R. C. FRENCH,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS

EIGHTH CIRCUIT

R. C. French, your Petitioner, respectfully prays that a Writ

of Certiorari be issued to review the judgment of the United

States Court of Appeals, Eighth Circuit, entered in the above-

entitled cause on August 7, 1980.

OPINIONS BELOW

This cause was originally decided by the United States District

Court for the Eastern District of Missouri, Eastern Division on

January 11, 1980, see Appendix ‘‘A’’. Subsequently, this cause

was then decided by the United States Court of Appeals for the

Eighth Circuit on August 7, 1980, see Appendix ‘‘B’’. A Peti-

vEN. oe

tion for Rehearing or, in the Alternative, Motion for Rehearing

En Banc was timely filed with the United States Court of Ap-

peals, Eighth Circuit on August 19, 1980. The Petition for

Rehearing and Rehearing En Banc were ordered denied on

August 28, 1980. (See Appendix ‘‘C’’).

JURISDICTION

The judgment of the United States Court of Appeals for the

Eighth Circuit was entered on August 7, 1980. The order of the

United States Court of Appeals for the Eighth Circuit denying ~

Petitioner’s Motion for Rehearing or, in the Alternative, Mo-

tion for Rehearing En Banc was entered on August 28, 1980.

The jurisdiction of this Court is invoked under 28 USC, Section

1254 (1) and Rule 19.1(b) of the Rules of the Supreme Court of

the United States.

RELEVANT STATUTES

§ 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—

(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 com-

pany at the time of the taking or obtaining.

a oe

(2) The term ‘‘extortion’’ means the obtaining of prop-

erty 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 af-

fect section 17 of Title 15, sections 52, 101-115, 151-166 of Title

29 or sections 151-188 of Title 45.

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

18 U.S.C. §1951 (1976 Edition found in Volume III at

page 1231).

STATEMENT OF THE CASE

R. C. French was charged by the United States Grand Jury of

the Eastern District of Missouri in a seven count Indictment

with Michael Moran, the Chief Deputy Marshal of the City of

St. Louis. Count I of this Indictment charged Moran and the

Petitioner with violating 18 U.S.C. 1961, 1962(d), and 1963 by

conspiring together to violate 18 U.S.C. 1951. Counts II, III,

IV, V, and VI charge Petitioner R. C. French with violating 18

U.S.C. 1951 (Hobbs Act Extortion) by obtaining from certain

bail bondsmen, under color of official right, certain sums of

money. In particular, Count V charged R. C. French with ob-

taining approximately the sum of $300.00 from Claude Torrey,

a bail bondsman, on or about June 9, 1978 and Count VI charg-

ed R. C. French with collecting approximately $100.00 from

said Claude Torrey, on or about August 7, 1978. Count IV also

an tiie

charged Michael Moran with aiding and abetting Petitioner R.

C. French in committing a 1951 Hobbs Act violation. Count VII

charged Michael Moran with violation of a federal law not per-

tinent to this Petition. Federal jurisdiction to hear this case in

the United States District Court was predicated on 18 U.S.C. §

3231.

The trial was held before the Honorable John K. Reagan,

District Judge, Eastern District of Missouri. This trial started on

October 29, 1979 and ran to November 6, 1979. At the conclu-

sion of the case presented by the United States Government, the

Honorable Judge Reagan granted the Petitioner his Motion for

Judgment of Acquittal as to Count I. After hearing all the

evidence, the jury in this case returned a verdict of finding the

Petitioner R. C. French guilty of Counts V and VI and not guil-

ty of the remaining counts. Michael Moran was found not guilty

on all of the counts.

R. C. French then filed a Motion for Judgment of Acquittal

at the Close of All the Evidence in the case. On November 30,

1979 the Petitioner French also filed a legal memorandum in

support of his Motion for Judgment of Acquittal at the Close of

All the Evidence in the case as pertaining to Counts V and VI.

On January 11, 1980 the Honorable John K. Reagan, District

Judge of the Eastern District of Missouri entered an order sus-

taining Petitioner French’s Motion for Acquittal as to Counts V

and VI thereby setting aside his conviction on those Counts and

ordering the Clerk of the Court to enter a Judgment of Acquit-

tal on both of said Counts. Said order was based on the failure

of the government to present sufficient evidence to bring about

a finding that R. C. French committed the requisite extortion

acts and that the said acts did have the required effect upon in-

terstate commerce to find a violation of the Hobbs Act.

The United States Government appealed said order to the

United States Court of Appeals for the Eighth Circuit. On

August 7, 1980 the United States Court of Appeals for the

—

Eighth Circuit reversed the ruling of the trial judge as to his

order reversing the conviction of Petitioner-R. C. French and

remanded the case to the Honorable Judge Reagan to reinstate

the judgment of conviction and to sentence the Petitioner.

In presenting the facts in the light most favorable to the

Government, the following evidence presented at trial is rele-

vant to this Petition:

On April 29, 1973, R. C. French was appointed Marshal of

the City of St. Louis. After he took office, one of French’s first

jobs was to take care of a large quantity of bond forfeitures of a

group of bondsmen named Group Underwriters. After entering

into discussions with the mayor of St. Louis, Mayor Poelker,

the mayor suggested to French that he should talk to the Law

Department about a reasonable settlement for these forfeitures.

The Petitioner discussed these potential offers of settlement to

Group Underwriters with Jack Koehr of the St. Louis City

Counselor’s office. Koehr told Mr. French to try and be fair and

reasonable in these settlements. As a result, French collected

some money from Group Underwriters but was unable to col-

lect the full amount of the bond forfeitures.

Based on the Charter of St. Louis and his conversations with

Mayor Poelker, it was R. C. French’s understanding that the

mayor was the only one who could have authorized the power to

settle bonds. The mayor told Mr. French that he could bargain

with Mr. Koehr about the bonds, but that the final decision

rested with Mayor Poelker on whether Mr. French could com-

promise bond judgments. Finally, Jack Koehr never told Mr.

French that Petitioner could not settle bond judgments.

Sometime after the Group Underwriter’s settlement, several

of the professional bondsmen, including Claude Torrey, com-

plained that they were getting treated differently than the in-

surance companies. Mr. French then would settle $500 bonds

for these bondsmen for $212 then at $262 and finally at $312.

However, R. C. French would make the final determination on

the amount of a bond settlement.

wien

After Petitioner took office, he started a bad bond list, which

he called a Disqualification List. The purpose of this list, which

came out once a week, was to alert the various agencies across

the city and the county that certain bondsmen should not be do-

ing business. However, by Mr. French’s own admission, this list

was not complete.

Though his name was not on it at the start, Claude Torrey’s

name managed to appear on the Disqualification List several

times. Claude Torrey is a professional bondsman. Between the

years of 1974 and 1978, Torrey used his car in business about

90% of the time. He estimates he uses about 40 gallons of gas a

week. Torrey also advertises in the Yellow Pages and uses the

services of a beeper company. Torrey bonds non-Missouri

residents, but these bonds were all on counts within the state of

Missouri. On occasion, Torrey must leave the boundary of

Missouri to find defendants who had forfeited their bonds. In

addition, Torrey writes bonds for two insurance companies, one

of which is located in New York City. Finally, Torrey uses

various kinds of business supplies, some of which are purchased

in Texas.

During the period in question, Torrey handled between 50

and 75 defendants per year in his bonding business. If he was

unable to find a defendant, Torrey would have to pay a bond

forfeiture which would be in full amount of the bond, $500,

plus $12 court costs.

Torrey initially met Mr. French in 1973 after Petitioner took

the office of St. Louis City Marshal. Torrey then had a second

meeting with the City Marshal where he was told that Torrey

would not be allowed to pay gratuities to deputies. According to

Mr. French, this was done to keep a smooth, clean-cut office.

Later in 1973 or early 1974, Torrey alleged that Mr. French

offered to Torrey that, in cases where Torrey could not find the

defendants, Petitioner would help get bond forfeitures set aside

for a fee between $25 and $75. Sometime in 1974, Torrey once

= pe

again visited R. C. French. This time, he claims that French

directed him to pay a $10 surrender fee directly to Mr. French.

Originally, these were payments that Torrey had been making to

the Deputy Marshals of the City of St. Louis. Torrey estimated

he paid this fee 100 times. From 1973 to the end of 1977, Torrey

claimed that he paid money to the City Marshal some 50 to 75

times after Torrey failed to find a defendant.

Torrey charged that starting in 1977, Mr. French indicated to

him that R. C. wanted $100 in cash in addition to the amount of

the bond settlement. Torrey stated that the City Marshal told

him that he had the authority from the City Counselor’s office

to compromise bond judgments for $212 or $262.

At first, Torrey was angry at this announcement and he

wanted to discover the purpose of the extra $100 and whether a

bond forfeiture could be set aside for $212 or $262. So, he went

over to see Jack Koehr, the City Counselor. However, after

discovering that Koehr was not in the office and was out to

lunch, Torrey left the Counselor’s office and never returned.

It was Torrey’s understanding that he would not be placed on

the Disqualification List if Torrey would start paying R. C.

French the money. So, Torrey would write out a check made

payable to the City of St. Louis for the amount of the bond

forfeiture and allegedly paid R. C. French an extra $100 in cash.

Specifically, on June 9, 1978, Torrey made a check out for $636,

payable to the City of St. Louis Marshal’s Office for three bond

forfeiture judgments and on August 7, 1978, Torrey made a

check out for $262, payable to the City Marshal, City of St.

Louis for one bond forfeiture judgment. Each time Torrey

claimed he made a $100 payment per bond forfeiture. It is also

alleged that around December, 1977, Torrey wrote another

check for $262 made payable to the City Marshal, City of St.

Louis, and a payment of $100 cash to R. C. French.

Nonetheless, there were also times between 1974 and 1977

when Torrey paid off in full the bond judgment plus the court

costs. On each of those occasions Torrey decided to pay the full

judgment to get a tax deduction. R. C. French’s alleged

response to Torrey paying off the entire judgment was that he

preferred that Torrey would not pay off his forfeiture in that

manner.

—_ on

REASONS FOR GRANTING THE WRIT

The reason why this Court should grant this Petition for Writ

of Certiorari is that the Eighth Circuit of the United States

Court of Appeals has decided two important questions of

federal law, as cited in the Questions Presented for Review sec-

tion, in interpreting U.S.C. § 1951. Said questions have not

been, but should be settled by this court due to the increasing

number of Hobbs Act cases.

As pointed out by this Court, to prove a violation of the

Hobbs Act, the United States Government must show both ex-

tortion and an interference with commerce. Stirone v. United

States, 361 U.S. 212, 218 (1960). Regarding the extortion ele-

ment of this offense, as pointed out by the Eighth Circuit in its

opinion of this case, there is not a great deal of applicable

legislative history to interpret the meaning of ‘‘color of official

right’’. (See Appendix B, Pg. 7, n. 4) 18 U.S.C. § 1951 cases.

The only guidelines stated by the Eighth Circuit are that Con-

gress intended to adopt the definition of extortion in common

law, particularly as it was defined in New York. (See Appendix

B, pg. 7). Federal Appellate Courts, especially the Third Circuit

has held that New York law would define Hobbs Act extortion.

United States v. Nedley, 255 F.2d 350 (3d Cir. 1958). In earlier

matters, using New York cases as a basis of interpretation, the

Third Circuit held that in all the Hobbs Act Extortion situations

the essence of this crime was duress. United States v. Ad-

donizio, 451 F.2d 49, 72 (3d Cir. 1972); cert. denied 405 U.S.

936 (1972) reh. denied 405 U.S. 1048 (1972); citing, People v.

Dioguardi, 8 N.Y.2d 260, 168 N.F.2d 683, 202 N.Y.S.2d 870

(N.Y. 1960).

In later decisions, the various circuits have stated that ‘‘under

color of official of right’’ cases there needs to be no showing of

overt coercion. United States v. Mazzei, 521 F.2d 639, 645 (3d

Cir. 1975); United States v. Staszcuk, 517 F.2d 53 (7th Cir.

1975). cert. denied, 423 U.S. 837 (1975). United States v. Price,

507 F.2d 1349 (4th Cir. 1974). cert. denied, 423 U.S. 1014

—

a

(1975). However, in the Mazzei case, the Third Circuit main-

tained that in those types of extortion, the jury still must at least

find that the ‘‘victim’’ had and the defendant exploited a

reasonable belief that the defendant had the actual authority

that the defendant said he possessed. United States v. Mazzei,

supra, at 643, see also, United States v. Braasch, 505 F.2d 139

(7th Cir. 1974), cert. denied, 421 U.S. 910 (1975). In the Eighth

Circuit, that Court stated in a ‘‘color of official right’’ case,

United States v. Adcock, 558 F.2d 397, 406; cert. denied, 434

U.S. 921 (1977); that the state of mind of the victim of the ex-

tortion is a necessary element to a Hobbs Act extortion convic-

tion. Jd. at 403. However, in the French opinion, the Eighth

Circuit held that this case was irrelevant. (See Appendix B, p. 12

n. 5).

Thus, this Court should examine this case to see if the Eighth

Circuit should be allowed to read the Hobbs Act so broadly.

The interpretation of the Eighth Circuit in the case at bar would

completely erase the necessity of presenting the victim at trial.

In other words, whether the ‘‘victim’’ suffers any harm or is in-

jured in any way or feels he is compelled to do something that

he would not normally wish to do becomes totally irrelevant and

unnecessary. !t is Petitioner’s contention that in victim oriented

offenses, the victim’s state of mind should be of some

significance.

Another reason that the Court should consider this Petition is

the growing concern among scholars and federal judges concern-

ing the development of this form of Hobbs Act extortion. A

law professor, now an Assistant Deputy Attorney General of

the United States, has written an in-depth report on the dangers

of federal prosecution of local corruption and illegal practices.

Ruff, Federal Prosecution of Local Corruption: A Case Study

in the Making of Law Enforcement Policy. 65 Georgetown L. J.

1171, 1196 (1977). In addition, in a recent Hobbs Act case, one

Federal Court of Appeals’ Judge for the Third Circuit has ex-

pressed a need to re-evaluate the prior decisions in that circuit

—

regarding its decision in United States v. Kenny, 462 F.2d 1205

(3d Cir. 1972) cert. denied, U.S. 914 409 (1972) which was the

- first case in that circuit to hold that the Government need not

establish proof of threat, fear or duress in an extortion ‘‘under

color of official right’? case. United States v. Cerilli, 603 F.2d

415, 426-437 (C.J. Aldisert dissenting); cert. denied, 100 S.Ct.

728 (1980).

Finally, this Court should grant this Petition in order to

discover whether the Eighth Circuit followed the intentions of

Congress in passing the Hobbs Act. United States v. American

Trucking Associations, 310 U.S. 534, 542 (1940); United States

v. Bass, 404 U.S. 335, 348 (1971). There is some holding in the

various Federal Court of Appeals decisions that the purpose of

passing to the Hobbs Act was particularly with the labor union

to control professional gangsterism. Carbo v. United States, 314

F.2d 718 (9th Cir. 1963); United States v. Yokley, 542 F.2d 300

(6th Cir. 1976); United States v. Brecht, 540 F.2d 45 (2nd Cir.

1976); see also, United States v. Emmons, 410 U.S. 396 (1973).

In addition, the Hobbs Act is under a chapter of criminal of-

fenses titled Racketeering Statutes. The official title of the

Hobbs Act is ‘‘Interference with commerce by threats or

violence’’. In view of the lack of legislative history in this area

of law, these titles, tools of statutory interpretation, should be

given some importance in deciding whether the case at bar fits

within the intentions of Congress in passing the Hobbs Act.

Brotherhood of Railroad Trainmen v. Baltimore & O.R.R., 331

U.S. 519 (1947). It is Petitioner’s contention that the Eighth

Circuit has gone far beyond the intentions of Congress.

Finally, this Court should determine whether the Petitioner

has made the requisite effect on interstate commerce. Par-

ticularly, this Court must decide whether this decision by the

Eighth Circuit has expanded federal jurisdiction to the point of

altering ‘‘sensitive federal-state relationships’’. Rewis v. United

States, 401 U.S. 808, 872 (1971); United States v. Bass, 404 U.S.

— 12 —

336, 349 (1971). As recognized by these cases by this Court, the

state government should be left alone to prosecute those people

who have committed a crime against the state or a municipality

of the state. Basically, if anything, that is what has transpired in

the case at bar. If there is a victim as presented by these facts, it

would be the City of St. Louis. It was the City of St. Louis who

was denied the bond forfeiture money to which it has legally en-

titled by the laws of Missouri. Thus, it is the State of Missouri

that should pursue this matter if it desires without any in-

terference from the federal government.

CONCLUSION

WHEREFORE, it is respectfully submitted that this Petition

for Writ of Certiorari should be sustained.

SHAW, HOWLETT &

SCHWARTZ

Charles M. Shaw, M.B.E. #13501

225 S. Meramec, Suite 324T

Clayton, Missouri 63105

725-9700

Attorneys for Petitioner

PROOF OF SERVICE

This is to certify that Charles M. Shaw, Shaw, Howlett &

Schwartz, Attorneys for Petitioner herein, have served upon the

following, three copies of the above Petition for a Writ of Cer-

tiorari: Solicitor General, Department of Justice, Washington,

D.C. 20530; Robert D. Kingsland, United States Attorney, 1114

Market Street, St. Louis, Missouri 63101.

APPENDIX

_— =

APPENDIX ‘‘A’”’

Memorandum and Order of the United States District Court for

the Eastern District of Missouri, Eastern Division, of January

11, 1980 in United States v. R. C. French.

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 79-124CR (B)

United States of America,

Plaintiff,

VS.

R. C. French,

Defendant.

MEMORANDUM AND ORDER

(Filed January 11, 1980)

Defendant French was found guilty on Counts V and VI of an

indictment charging him with violating Section 1951, 18 U.S.C.

He was acquitted on all other counts charging him with similar

offenses. Theretofore, at the close of all the evidence, French

had moved for a judgment of acquittal. We reserved ruling the

motion. The motion is now before us for disposition.

Section 1951 (the Hobbs Act) proscribes extortion which in

any way or degree obstructs, delays or affects commerce. ‘‘Ex-

tortion’”’ as used in the statute includes ‘‘the obtaining of prop-

erty from another, with his consent, induced . . . under color

of official right.’’ Extortion under color of official right is the

wrongful taking by a public officer of money or property not

due him or his office.

The motion for acquittal brings into question the sufficiency

of the evidence to warrant a finding either of extortion or of an

a

adverse effect of the alleged extortion upon commerce. In deter-

mining this issue, we, of course, view the evidence in the light

most favorable to the government. ,

At the times in question French was the Marshal of the City

of St. Louis, one of whose duties (under the City Charter) was

to collect the full amounts of bail bond judgments pursuant to

judgment orders of the City Court. Count V of the indictment

charged that French unlawfully affected commerce or attemp-

ted to do so by obtaining under color of official right the sum of

$300 not due him or his office directly or indirectly from Claude

Torrey, a bail bondsman, in return for not complying with an

order of the St. Louis City Court to collect the full amount of

three bond judgments owed the City of St. Louis by said bonds-

man. Count VI, which involved only one bond judgment

charges a similar offense except for the date and the amount

French allegedly obtained from the bondsman.

The government’s evidence was to the effect that although

French was ordered to collect the full amount owing to the City

by the bondsman, he would (without specific authority) ‘‘com-

promise’’ and satisfy each $512 bond forfeiture judgment for

less than the full amount. The procedure followed with respect

to each judgment was to obtain from Torrey a check payable to

the City of St. Louis in the amount of either $212 or $262 anda

cash payment of $100, representing that he (French) intended to

pocket the cash, in return for French’s promise not to collect the

balance owing the City. In each instance the total payments by

Torrey were in an amount substantially less than he owed the

City. As a result, Torrey was enabled to continue to engage in

his bail bond business. '

' Rules 32.14 and 37.107 of the Missouri Supreme Court prohibit

bail bondsmen with outstanding forfeiture judgments from writing

bail bonds anywhere within the State of Missouri.

— < jm

Understandably, Torrey would have preferred not to pay the

$100 in cash to French in addition to the check for $212.

However, it is obvious that, realistically, it was immaterial to

him whether that cash payment was remitted to the City or was

kept by French, so long as the total payment he made was

substantially less than the amount owing by him. From his point

of view as a businessman, Torrey was eliminating a $512 judg-

ment debt for the sum of $312. Confronted with the choice of

paying $512 or of paying $312 to be relieved of his judgment

debt, Torrey obviously chose the latter. His choice would have

been the same whether or not he was aware that French would

appropriate to his own use $100 of the sum paid by Torrey.

The basic facts in this case are unlike those in any reported

case to which we have been cited or of which we are aware in

which the alleged extortion was under color of official right. In

the instant case (under the government’s evidence), it was

French’s duty to collect (and the obligation of Torrey to pay)

$512, the full amount of each judgment. French had no authori-

ty to accept less than that amount by way of ‘‘compromise.”’

Hence a// the money paid by Torrey to French was due the of-

fice of French as the city’s collection agent. Theoretically, of

course, Torrey may have been ‘‘compromising’’ (without con-

sideration therefor) each judgment against him for $212, but as

a practical husiness matter he was paying to the office of the

Marshal the sum of $312 with the resultant saving of $200 on

each judgment.

There is no theory under which the $100 cash per judgment

which Torrey paid to French was not rightfully money which

belonged to the City. The fact that French disclosed to Torrey

his intention to keep the $100 cash instead of remitting it to the

City does not metamorphasize an embezzlement into an extor-

tion situation. Unquestionably, as we have stated, Torrey would

have paid to the office of the Marshal the $312 in one payment

(either by check or in cash) in order to effect a saving to him of

$200 even if he had not been told that French intended to

embezzle the $100.

a on

By way of contrast, in none of the cases sustaining convic-

tions under the Hobbs Act was the money which the defendant

extorted actually owing, directly or indirectly, to the defendant

or to his office. The typical Hobbs Act ‘‘color of official right”’

prosecutions involve situations where money is paid or sought

for the avoidance of police or other official harrassment or

where an official obtains money for official favors.

For example, in United States v. Brown, 8 Cir. 1976, 540 F.2d

364, contractors made apartment rental payments for Brown’s

benefit in return for what they believed would be a friendly rela-

tionship toward them in his capacity as the city’s Building Com-

missioner. Under no view of the facts could the amount of the

rental payments be held to be payable or owing to the City or to

the office of Brown. In United States v. Rabbitt, 8 Cir. 1978,

583 F.2d 1014, the defendant, Speaker of the Missouri House of

Representatives, obtained a substantial sum of money in return

for his ‘‘services’’ in steering to passage by the House a bill in

which those paying the money were interested. Again, as in

Brown, the money could not conceivably be held to be owing to

the State of which the defendant was an official. And in U.S. v.

Adcock, 8 Cir. 1977, 558 F.2d 397, the defendant, Chairman of

the Iowa Liquor Control Commission, obtained money and

property in return for official favors. In another Eighth Circuit

case, U.S. v. Merry, 8 Cir. 1975, 514 F.2d 399, the defendant, a

police officer, threatened official action against the operator of

a massage parlor if substantial sums of money were not paid to

the defendant. All of the cases in other circuits which we have

studied also involve factual situations in which the money paid

or demanded was not due or owing. None of them arose in an

embezzlement context.

We hold that inasmuch as all of the moneys paid by Torrey

under color of his office were actually owing to the office of the

marshal as agent of the City, the receipt and retention by French

of the cash payments would constitute embezzlement, a state of-

fense, rather than extortion.

— A-5 —

We are also convinced that the evidence wholly fails to show

the requisite effect upon interstate commerce. There can be no

doubt that for purposes of the Hobbs Act ‘‘(t)he connection

with interstate commerce need only be slight.’’ U.S. v. Rabbitt,

supra, 583 F.2d at 1023. As held in Rabbitt: ‘‘If the resources of

a business which affects interstate commerce are depleted and

diminished as a result of extortion, then interstate commerce is

affected.’’ So, too, it is not necessary that the subject of the ex-

tortion constitute interstate commerce or that its purpose be to

affect such commerce. U.S. v. Spagnola, 4 Cir. 1976, 546 F.2d

117.

In the instant case, the government’s proof was to the effect

that the activities of the bondsman affected commerce to some

slight extent. However, what we are here concerned with is

whether the ‘‘extortion in some degree, however slight, affected

interstate commerce.’’ Under the explicit language of Section

1951, that is the crux of the offense. The evidence sufficiently

showed that Torrey, in his bail bond business, made purchases

of services and supplies which originated in other states, the

government’s theory being that the allegedly extortionate

payments diminished or depleted his resources available for

such purposes. We do not question the correctness of this

theory, but find it inapplicable under the instant facts.

In the usual Hobbs Act case, it is obvious that the extor-

tionate payments of moneys which were not owing would

necessarily, even though only slightly, diminish the resources

which would be available for activities affecting commerce. In

the present case, however, it is clear that as the result of making

the cash payment of $100 to French, Torrey’s resources for his

purchases of services and supplies were increased, not diminish-

ed. That is, had he paid what he justly owed (the full amount of

the judgment) his available resources would have been substan-

tially less than the amount thereof which remained after making

the $100 payment. Since French, under the government’s evi-

dence (and the indictment), had no authority to accept less than

—_ >

the full amount of the judgment, it follows that as the result of

the unauthorized ‘‘compromise’’ Torrey received a benefit to

which he was not entitled and which he could not have insisted

upon. Thus, after making the cash payments of $100, which

were misappropriated by French, Torrey had some $200 in

*‘windfall profits’? on each judgment with which to purchase

supplies and services, a sum which would not have been

available to him but for the ‘‘compromise.”’

We add that whatever may have been the derelictions of

French, we are limited in our consideration of the motion for

acquittal to the specific factual allegations set forth in Counts V

and VI. It is on that basis which we have concluded that the mo-

tion should be sustained.

Accordingly, IT IS HEREBY ORDERED that the motion of

defendant French for acquittal on Counts V and VI should be

and it is hereby sustained. The judgment of conviction on

Counts V and VI of the indictment is hereby set aside and

vacated and the Clerk is hereby ordered to enter a judgment of

acquittal on both of said Counts.

Dated this 11th day of January, 1980.

/s/ JOHN F. REGAN

United States District Judge

— *.

APPENDIX ‘‘B’”’

Opinion of the United States Court of Appeals, Eighth Circuit

of August 7, 1980 in United States v. R. C. French.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1096

United States of America,

Appellant,

. Vv.

R. C. French,

Appellee.

Appeal from the United States District Court

for the Eastern District of Missouri

Submitted: May 22, 1980

Filed: August 7, 1980

Before BRIGHT, HENLEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

The United States appeals from an order of the district court

setting aside a jury verdict finding appellee R.C. French, former

Marshal of the City of St. Louis, guilty of two counts of affec-

ting interstate commerce by extortion, in violation of the Hobbs

Act, 18 U.S.C. § 1951. For the reasons stated below, we reverse

and remand to the district court with directions to vacate the

judgment of acquittal and hold it for naught, to reinstate judg-

ment of conviction pursuant to the jury verdict and to sentence

appellee accordingly.

—

Appellee, who had been indicted by a grand jury on five

counts of violating the Hobbs Act, 18 U.S.C. § 1951, and one

count of violating the Federal Anti-Racketeering Act, 18 U.S.C.

§§ 1961, 1962(d), 1963, was tried before a jury which returned a

verdict of guilty on two counts of violation of the Hobbs Act.

Appellee had moved for acquittal at the clos€ ofthe govern-

ment’s evidence, at which time the court reserved its ruling.

After the jury’s verdict, the court granted appellce’s motion,

vacated appellee’s conviction and entered a judgment of acquit-

tal on both counts.

In the two counts upon which the jury had found appellee

guilty, he was accused of violating the Hobbs Act' by affecting

interstate commerce through extortion under color of official

right as city marshal. The district court was of the view that the

government failed to prove either essential element of the crime:

that appellee committed ‘‘extortion’’ as that act 1s defined

under the Hobbs Act, and that the extortion affected commerce

' The Hobbs Act provides in relevant part:

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

commerce or the movement of any article or commodity in

commerce, by robbery or extortion . . . 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 prop-

erty 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. . . all commerce be-

tween any point in a State . . . and any point outside

thereof; . . . and all other commerce over which the

United States has jurisdiction.

18 U.S.C. § 1951.

ns i

and thereby came under the coverage of federal criminal law. A

failure by the government to prove either of these essential

elements of the crime would entitle appellee to an acquittal. See

Stirone v. United States, 361 U.S. 212, 218 (1960). The govern-

ment, however, claims that the proof was sufficient to support a

finding against appellee on both matters. Reviewing the

evidence in the light most favorable to the verdict, see United

States v. Hemphill, 544 F.2d 341 (8th Cir. 1976), cert. denied,

430 U.S. 967 (1977), we agree that the verdict should not have

been set aside.

I. Hobbs Act Extortion

At the time of the alleged extortion, appellee’s official duties

as city marshal included collection of bail bonds which had been

forfeited when a defendant failed to appear in the municipal

courts to answer the charges against him. If the bond was

forfeited, the surety on the bond would be required to pay to the

city the amount of the bond plus court costs.

The counts upon which appellee was found guilty involved

four forfeited bonds, each in the amount of $500 with $12 court

costs, and each naming Claude Torrey, a professional bail

bondsman, as surety. It is undisputed that appellee did not ob-

tain the full $512 for the city in settlement of any of the four

bonds; instead, appellee received from Torrey two checks

payable to the city, one for $636 to settle three of the bonds and

another for $262 to settle the fourth bond. Torrey testified that

as a quid pro quo for making these settlements, appellee re-

quired an additional cash payment for his own personal benefit

of $100 per bond, which Torrey paid to appellee in a lump sum

of $300 cash at the time of the $636 settlement and in $100 cash

at the time of the $262 settlement.

Torrey also testified that he would have been unwilling to

make the cash payments but was induced to pay by appellee’s

— A-10 —

offer to settle the bonds for less than $512 a piece, something

appellee would not do without the cash payment.’ According to

Torrey, appellee claimed to have the power to settle the bonds.

Although the evidence indicated that appellee did not in fact

have legal authority to settle the bonds for less than $512, it is

undisputed that appellee did accept the reduced payments and

took no further steps to enforce the bonds. Taking the evidence

in the light most favorable to the verdict, we therefore regard it

as established that appellee took personal cash payments in

return for accepting reduced amounts on behalf of the city to

settle defaults.

The Hobbs Act contains a definition of prohibited extortion

as ‘‘the obtaining of property from another, with his consent . .

. under color of offical right.’’ 18 U.S.C. § 1951(b)(2). ‘‘Extor-

tion ‘under color of official right’ will . . . be established

whenever evidence shows beyond a reasonable doubt ‘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.’’ United States v. Brown, 540 F.2d 364,

372 (8th Cir. 1976), citing United States v. Kenny, 462 F.2d

1205, 1229 (3d Cir.), cert. denied, 409 U.S. 914 (1972). The

? The government contends that an additional factor in the extor-

tion was appellee’s failure to place Torrey’s name on a ‘‘bad bond

list’’ of bondsmen who had failed to pay the city the amount due on

forfeited bonds. Were Torrey not to have made the cash payoffs to

appellee, asserts the government, appellee would have placed Torrey’s

name on the bad bond list either for failure to pay the four bonds in-

volved in the accusations against appellee, or some other bond

defaults Torrey had failed to satisfy. However, the counts of the in-

dictment upon which appellee was found guilty charged only that ap-

pellee had extorted the cash payments in return for failing to enforce

specific bonds. Moreover, the government’s brief on this point below

did not present this theory and the court below did not consider it. As

we disagree on other grounds with the district court’s analysis of the

extortion issue, we therefore do not address the ‘‘bad bond list”’

theory advanced by the government.

— A-ll —

district court concluded that this requirement had not been met,

because the full sum of all money Torrey paid to appellant was

less than the sum rightfully due to the sheriff’s office as pay-

ment on the defaulted bonds. Under the district court’s

analysis, because Torrey owed $512 on each bond, any payment

of up to $512 was money rightfully due the sheriff’s office, even

if appellee made known to Torrey that a part of the payment

($100 cash) was due to him personally as a quid pro quo in

return for settling the bond at less than the face amount. The

district court concluded, ‘‘There is no theory under which the

$100 cash per judgment which Torrey paid to French was not

rightfully money which belonged to the City.’’ United States v.

French, Cr. No. 79-124CR(B) (E.D. Mo. Jan. 11, 1980) (slip op.

at 3-4). That is, the government therefore failed to prove that

appellee had taken money not due his office.’

We cannot agree that as a matter of law no extortion was pro-

ven. There was evidence that Torrey paid one sum of

money—$212 or $262—by check to the city to settle a defaulted

bond, and a second sum of money—$100—in cash to appellee

as a fee for making the settlement. The jury could have believed

that Torrey’s debt to the city was satisfied by payment of the

amount of the check which was accepted in settlement of the

bond; indeed, appellee himself testified that he accepted $212

’ The district court characterized appellee’s conduct as ‘‘embezzle-

ment’’ in distinguishing the conduct from extortion under the Hobbs

Act. On appeal the government argues that appellee’s conduct was not

embezzlement. We are concerned only with whether or not the con-

duct was Hobbs Act extortion, regardless if it met the definition of

some other local or common law offense, and regard the district

court’s discussion of embezzlement as an illustration of how the

money taken by appellee could have been rightfuly due appellee’s of-

fice, no matter how wrongful appellee’s own conduct may have been.

Our disagreement with the district court is that we think the jury could

have found that appellee took money not rightfully due his office, and

we express no opinion on whether appellee’s conduct constituted

embezzlement under local law.

— A-12 —

and $262 payments to settle the $512 default obligations of

bondsmen. Even if appellee did not have lawful authority to

make such a settlement, the evidence indicates that the city did

not pursue the obligation further after the settlement was paid.

If the settlement check for $212 or $262 to the city in fact put an

end to appellee’s obligation under the bond, the additional cash

payment would not be money due appellee’s office, but would

be a wrongful fee not due appellee or his office. Taking the

evidence in the light most favorable to the government, the jury

could have concluded that appellee received a wrongful fee for

himself, beyond the amount the city sought to collect.

There is no doubt that Hobbs Act extortion ‘‘under color of

official right’’ includes this kind of corrupt use of public office

by the official to obtain such a wrongful personal fee. While the

legislative history referring directly to the ‘‘color of official

right’’ provision is not helpful on this point,‘ the legislative

‘ The only legislative history we have found for the ‘‘color of of-

ficial right’’ language is a colloquy on the floor of the House of

Representatives during debate on the predecessor of the Hobbs Act,

H.R. Rep. No. 653, 78th Cong., Ist Sess. (1943), which was passed by

the House of Representatives but failed in the Senate. ‘The remarks

with respect to that bill . . . are wholly relevant to an understanding of

the Hobbs Act, since the operative language of the original bill was

substantially carried forward into the Act.’’ United States v. Enmons,

410 U.S. 396, 404-05 n.14 (1973). During debate labor supporters ex-

pressed concern that the ‘‘color of official right’’ language would

make it extortion for labor union officials to demand union dues.

Reps. Hobbs and Summers (Chairman of the House Judiciary Com-

mittee which report the bill) both insisted that the language applied to

only public officials. 89 Cong. Rec. 3228-29 (1943). The represen-

tatives saw the conduct covered by this provision as something akin to

the common law crime of false pretenses. ‘‘In other words, you pre-

tend to be a police officer, you pretend to be a deputy sheriff, but you

are not.’’ Jd. at 3229 (remarks of Rep. Hobbs). Other comments by

supporters indicated that the bill might also be construed broadly to

cover ‘‘money acquired by somebody claiming to be a public officer,”’

id. (remarks of Rep. Summers), a comment suggesting potential for

quite broad coverage of wrongful acts by public officials or those

assuming the guise of public office. The brief debate that occurred in

1943, however, was not clear enough to be determinative of the scope

of the ‘‘color of official right’’ language, especially in light of the con-

fusing reference to false pretenses type crimes, which would seem out

of place in an extortion statute.

— A-13 —

debates on the Hobbs Act suggest that Congress intended to

adopt the common law definition of extortion as it had been

adopted by the states, with especial reference to the law of New

York, from which the Hobbs Act’s language was taken. See 91

Cong. Rec. 11843 (remarks of Rep. Michener), 11900 (remarks

of Rep. Hobbs), 11909 (remarks of Rep. Summers), 11910 (col-

loquy of Reps. Robeson and Springer), 11913 (remarks of Rep.

Rhea), 11914 (remarks of Rep. Russell) (1945). See also United

States v. Enmons, supra, 410 U.S. at 406 n.16; United States v.

Harding, 563 F.2d 299, 302-06 (6th Cir. 1977), cert. denied, 434

U.S. 1062 (1978); United States v. Mazzei, 521 F.2d 639, 644-45

(3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975); id. at

650-55 (Gibbons, J., dissenting). See generally Stern, Prosecu-

tions of Local Political Corruption under the Hobbs Act, 3

SETON HALL L. REV. 1 (1971).

Appellee’s conduct in this case is not meaningfully

distinguishable from that found to be extortion in an old New

York case, People v. Whaley, 6 Cow. 661 (Sup. Ct. 1827), upon

which the ‘‘color of official right’’ language in the New York

extortion statute (and thereby the Hobbs Act) was in part based.

See United States v. Mazzei, supra, 521 F.2d at 653-54 (Gib-

bons, J., dissenting). Whaley involved the extortion conviction

of a judge who had presided over an action for debt on a note.

In the debt action the creditor had failed to appear in court and

the case was apparently dismissed or ‘‘discontinued.’’ However,

the debtor nevertheless confessed judgment and the judge

received payment in spite of the discontinuance of the debt ac-

tion, an act found to be extortion. In the instant case, because

the jury could have found that Torrey’s check to the city put an

end to his obligation to the city on the bond, Torrey’s position

was analogous to that of the debtor after the creditor’s action

had been discontinued. Nevertheless, appellee demanded addi-

tional payment from Torrey in settlement of the bond, as the

New York judge had demanded payment upon the debt despite

discontinuance of the action. It does not avail appellee to claim

that the additional payment was a part of the full amount of

ow pth on

Torrey’s bond, any more than it would have availed the defen-

dant in the Whaley case to claim that he took nothing other than

money the debtor confessed to owing. In either case, the jury

could have found nevertheless that the money taken was not due

to the taker, whoever else might have been rightfully entitled to

payment. In short, appellee used his office to take money

wrongfully, for appellee was not entitled to any personal fee for

discharging the bond.

Moreover, even if the full $512 were actually due the city on

each bond, it would be extortion for appellee to seek and obtain

a $100 fee for himself personally as a quid pro quo for refrain-

ing from collecting the full amount he should have collected on

the bonds. In general, a public officer who corruptly seeks a

payment in return for short-changing his duty to enforce the law

has committed extortion. ‘‘It matter not whether the public of-

ficial induces payments to perform his duties or not to perform

his dutes. . . . So long as the motivation for the payment focuses

on the recipient’s office, the conduct falls within the ambit of

[Hobbs Act extortion].’’ Unitd States v. Braasch, 505 F.2d 139,

151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975). See also

United States v. Brown, supra, 540 F.2d at 372-73 (payments by

construction contractors to city building commissioner with

regulatory authority over them); United States v. Price, 507

F.2d 1349 (4th Cir. 1974) (per curiam) (payment by property

owner in return for county council member’s use of influence to

obtain occupancy permit for property despite building code

violations); Ladner v. United States, 168 F.2d 771 (Sth Cir.),

cert. denied, 335 U.S. 827 (1948) (conspiracy to extort payments

in return for failure to prosecute unlawful acts); People v.

Sheridan, 186 A.D. 211, 174 N.Y.S. 327 (1919) (extortion by

elevator inspector demanding payment in return for failure to

report defective elevator); Annot., 70 A.L.R.3d 1153, 1160

(1976). But see Ruff, Federal Prosecution of Local Corruption,

65 GEO. L. REV. 1171, 1174-96 (1977). In this case appellee is

likewise alleged to have taken payments for himself personally

in return for shortchanging his duty to the city by failing to col-

Fee mies A-15 —

~

=

lect the full $512 amount of the bonds. Appellee therefore

would have induced payments to himself on the basis of perfor-

ming or not performing his official duties. Such conduct is

Hobbs Act extortion under color of official right. It makes no

difference in our analysis whether appellee’s duty involved col-

lection of money or some other task. See, e.g., United States v.

Frumento, 405 F. Supp. 23, 30-31 (E.D. Pa. 1975) (indictment

was sufficient to charge Hobbs Act extortion conspiracy, where

revenue Official sought wrongful fee in return for aid to

cigarette dealer in evading taxes).

Such conduct is no less extortion because the ‘‘victim’’ may

in some sense receive an economic benefit when the public of-

ficial neglects his duty. See United States v. Butler, Nos.

79-5046, 79-5047 (6th Cir. Mar. 26, 1980) (slip op. at 14). Cf.

United States v. Howe, 353 F. Supp. 419 (W.D. Mo. 1973) (ex-

tortion ‘‘victim’’ compelled to allow vending machine on

premises and to give up only part of profits to extortioner;

therefore some profits were retained by the ‘‘victim’’). The

argument that the ‘‘victim’’ has suffered no loss is merely the

converse of the argument that the money appellee took was part

of the sum rightfully due the city. But the jury could have found

that the money appellee took was a wrongful personal fee in

return for reducing or failing to enforce the city’s claim.

It is the wrongful purpose of the taking under color of official

right that makes appellee’s conduct extortion under the Hobbs

Act. The Supreme Court in United States v. Enmons, supra,

410 U.S. at 400, distinguished between a case of Hobbs Act ex-

tortion by a labor union official threatening violence to obtain a

personal payoff, and a case not covered by the Hobbs Act

where union members threaten violence in a strike to obtain a

more favorable wage settlement. Although the Court pointed

out that the latter kind of strike violence may be unlawful under

local law, there is no violation of the Hobbs Act where the

union members threaten violence to obtain higher wage

payments, a legitimate end which is not a wrongful taking of

— A-16 —

money under the Hobbs Act. By contrast, a union official does

commit Hobbs Act extortion by using threats to obtain a per-

sonal payment which would not be a legitimate end of labor ac-

tivity and which is therefore a wrongful payment. Likewise, in

the instant case there was evidence that appellee obtained a

wrongful payment for himself under color of office, an act

analogous to a union official who took a personal payoff in

return for accepting a reduced wage level in settlement of a

strike. Under the Enmons case, the taking was wrongful for

purposes of the Hobbs Act.

Furthermore, in Enmons special factors may have entered

into the Court’s consideration of strike violence by union

members seeking higher benefits, for the text of the Hobbs Act

and legislative history demonstrate a Congressional purpose not

to restrain strike activity. Jd. at 400-408; see 18 U.S.C. § 1951(c)

(no implied repeal under the Hobbs Act of other federal labor

laws governing strikes). Therefore, the Hobbs Act does not

cover coercive action by unions in pursuit of legitimate labor

goals of higher wages or increased benefits, but the Hobbs Act

coverage may nevertheless extend to other kinds of wrongful

taking of money to which the extortioner may also have a

rightful claim. Thus, one court has held in a Hobbs Act case

that the Enmons holding did not support a defense that the

allegedly extortionate acts of the defendants, members of the

Seminole Nation, were in pursuit of a rightful claim for repara-

tions on behalf of the Nation. United States v. Warledo, 557

F.2d 721, 728-30 (10th Cir. 1977) (approving exclusion at trial of

evidence relating to reparations claim). Under state law the rule

appears to be that one who takes money extortionately cannot

defend on the basis that the money collected thereby was in

satisfaction of a legitimate debt. E.g., State v. Adjustment

Department Credit Bureau, 94 Idaho 156, 483 P.2d 687 (1971);

People v. Maranian, 359 Mich. 361, 102 N.W.2d 568 (1960);

People v. Fichtner, 28 A.D. 159, 118 N.Y.S.2d 392 (1952),

aff'd, 305 N.Y. 864, 114 N.E.2d 212 (1953). See generally

— A-17 —

Annot., 135 A.L.R. 728 (1941). Likewise, it does not justify ex-

tortion of a wrongful payment under color of official right that

the payment came from one who had a legitimate debt to the

government. Thus, we are convinced that the evidence could

support conviction for Hobbs Act extortion in this case.’

Il. Effect on Commerce.

The Hobbs Act does not prohibit extortion generally, but

rather penalizes ‘‘[w]hoever in any way or degree obstructs,

delays, or affects commerce or the movement of any article or

commodity in commerce, by... extortion. . .”’ 18 U.S.C. §

1951(a). As the district court recognized, ‘‘[i]f the resources of a

business which affects interstate commerce are depleted and

* Appellee relies on two other cases which do not support his posi-

tion. United States v. McNeive, 536 F.2d 1245 (8th Cir. 1976), was a

mail fraud case in which a plumbing inspector took small personal

payments from contractors. The evidence failed to show that the

payments affected the inspector’s ‘‘discretionary judgment [or]

result[ed] in any official preferential treatment ....’’ Jd. at 1251.

The court stated that acceptance of the payments could not be

characterized as an ‘‘extortion.’’ Jd. In the instant case by contrast

evidence showed that the cash payments to appellee resulted in

“‘preferential treatment’’ when the defaulted bonds were settled at a

reduced rate.’’

United States v. Adcock, 558 F.2d 397 (8th Cir.), cert. denied, 434

U.S. 921 (1977), was a Hobbs Act extortion case in which a member of

a state liquor commission took kickbacks in return for inducing the

commission to purchase wine from the ‘‘victim’’ for resale in state

operated liquor stores. In holding that evidence of the ‘‘victim’s’’

state of mind was admissible to prove that the payments were com-

pelled by fear of economic loss, this court noted, ‘‘extortion connotes

some form of coercion.’’ Jd. at 404. In this case appellee is charged

solely with extortion under color of official right. As the court in Ad-

cock recognized, this kind of extortion need not be accomplished by

force, threats or use of fear. See id. at 403. Hence, it is irrelevant that

Torrey made the cash payments to appellee voluntarily, so long as ap-

pellee was acting under color of official right. See generally United

States v. Rabbitt, 583 F.2d 1014, 1026-28 (8th Cir. 1978), cert. denied,

439 U.S. 1116 (1979).

— A-18 —

diminished as a result of extortion, then interstate commerce is

affected,’’ United States v. Rabbitt, 583 F.2d 1014, 1023 (8th

Cir. 1978), cert. denied, 439 U.S. 1116 (1979), and ‘‘[t]he con-

nection with interstate commerce need only be slight.’’ /d.,

citing United States v. Culbert, 435 U.S. 371 (1978). See also

United States v. Irali, 503 F.2d 1295 (7th Cir. 1974), cert.

denied, 420 U.S. 990 (1975) (effect on commerce found where

payment of $150 was extorted by local official from tavern

owner who purchased liquor from state distributors who in turn

purchased liquor interstate).

There was no dispute that Torrey in the course of his bail

bond business purchased articles, such as gasoline and certain

office supplies, that had been in interstate commerce. However,

the district court found that, although Torrey did purchase sup-

plies for his bail bond business from interstate commerce, the

resources available to Torrey to make such purchases were not

depleted by any payments to appellee. The court reasoned that,

because Torrey’s total payments to the city and appellee

amounted to less than the face amount of the bonds that would

have been due otherwise, Torrey had more, not less, money to

purchase items in interstate commerce as a result of his payment

to appellee. On this basis, the district court held that the govern-

ment failed to prove an effect on interstate commerce under a

depletion-of-resources analysis.

For reversal the government argues that the Hobbs Act pro-

hibits all extortion affecting commerce, not just extortion which

has an ‘‘adverse’’ effect.° We have some difficulty with this

* Moreover, argues the government, Torrey’s wrongful cash

payments to appellee temporarily depleted Torrey’s resources, even if

in the long run Torrey would have had more resources because of his

avoidance of his legitimate debt to the city. We do not understand

how Torrey’s aggregate resources were temporarily depleted by his

cash payments to appellee, as the evidence indicates that Torrey set-

tled the bonds at the time of the extortion and therefore no time inter-

val occurred between the extortionate payment and receipt of the net

financial benefit of the settlement.

— A-19 —

theory. Although the Hobbs Act on its face prohibits all extor-

tion which ‘‘in any way or degree . . . affects commerce,’’ the

legislative history of the Act strongly indicates that Congress in-

tended to protect the free flow of commerce and prevent exac-

tion of any unlawful tribute from interstate commerce, and in-

dicates no Congressional intent whatsoever to punish activity

absent some adverse effect on interstate commerce. See H.R.

Rep. No. 238, 79th Cong., Ist Sess. (1945), reprinted in [1946]

U.S. CODE CONG. & AD. NEWS 1360, 1370; 91 Cong. Rec.

11839-848, 11899-922 (1945) (debate in House of Represen-

tatives on Hobbs Act). Moreover, the government’s theory

seems to suggest that a robbery or extortion automatically

would affect commerce as long as the victim engages in trans-

actions involving articles which have been in interstate com-

merce. Courts have found such an effect where the evidence

shows some depletion of resources which the victim would

otherwise have used in transactions involving articles which had

been in interstate commerce,’ or even in some cases where the

E.g., United States v. Blakey, 607 F.2d 779 (7th Cir. 1979) (extor-

tion of payments from illegal Speration which used for a ‘‘front’’ a

tire business which resold tires purchased in interstate commerce);

United States v. Richardson, 596 F.2d 157, 161 & n.6 (6th Cir. 1979)

(evidence that payments extorted from intrastate business would have

been used to purchase articles from interstate commerce); United

States v. Chiantese, 582 F.2d 974, 980 & n.16 (Sth Cir. 1978), cert.

denied, 441 U.S. 922 (1979) (evidence that local parking lot used

financing and articles from interstate commerce); United States v.

Irali, supra, 503 F.2d at 1298 (evidence that extorted payments im-

peded ability of victim to purchase supplies which had been in in-

terstate commerce). Cf. Stirone v. United States, supra, 361 U.S. at

215 (extortionate threats against local business which used supplies

from interstate commerce affected commerce because threatened in-

terference with business would slow up or stop use of supplies).

—_— po

evidence showed only a possibility that the money taken would

have been used in such transactions.* The government’s theory

in this case would base federal jurisdiction upon a more tenuous

nexus with interstate commerce, as there was no testimony that,

absent the extortion, Torrey would have spent less or more

money on the articles which he regularly purchased from in-

terstate commerce, or that failure to pay appellee off would

threaten any consequences which would result in an increase or

decrease in commerce.’ The government’s theory would, there-

fore, extend Hobbs Act coverage to any money taken by rob-

bery or extortion from anyone who engaged in transactions in-

volving goods which had been in interstate commerce, a reading

of the Hobbs Act which in practicality would extend federal

* See e.g., United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979), cert.

denied, 100 S. Ct. 728 (1980); United States v. Staszcuk, 517 F.2d 53

(7th Cir.) (en banc), cert. denied, 423 U.S. 837 (1975). But see Com-

ment, 66 J. CRIM. L. & CRIMINOLOGY 306, 318-20 (1975) (arguing

that because the Hobbs Act contains no legislative finding that extor-

tion affects interstate commerce, effect upon commerce must be

proven in every case and a potential effect would not be adequate to

support invoking the Hobbs Act). See also Comment, 1972 U. ILL. L.

F. 805.

* The government at oral argument seemed to argue that, if Torrey

did not pay appellee off, Torrey may have been disqualified as a bonds-

man for failure to satisfy his obligation under the bonds. The govern-

ment seems to suggest that lorrey would then be placed on the **bad

bond list,’’ see note 2 supra. We regard this theory as speculative, for

the record suggests to the contrary that Torrey would have likely paid

the bonds in full if faced with no other alternative than disqualifica-

tion. (Indeed there was testimony that, when appellee at one time at-

tempted to increase the settlement totals to about $400, including both

payment to the city and to appellee personally, Torrey decided to pay

the whole $512 instead because income tax savings by deducting the

full $512 outweighed the savings of paying a reduced amount part of

which would be a nondeductible cash payoff.) Therefore, we cannot

conclude that appellee obtained the payments under an implied threat

to disqualify Torrey as a bondsman and thus curtail that part of Tor-

rey’s business which involved interstate transactions. Cf. Stirone v.

United States, supra, 361 U.S. at 215.

— A-21 —

jurisdiction over just about any robbery or extortion. Such an

assumption by the federal government of general jurisdiction

over common law crimes traditionally covered by local law is

something we would not lightly imply. See United States v.

Bass, 404 U.S. 336, 349 (1971); Rewis v. United States, 401 U.S.

808 (1971).

We note, however, that there is also support for the govern-

ment’s position. The Hobbs Act ‘‘speaks in broad language,

manifesting a purpose to use all the constitutional power Con-

gress has to punish interference with interstate commerce by ex-

tortion... .’’ Stirone v. United States, supra, 361 U.S. at 215.

Appellant cites cases wherein the extortionate conduct assert-

edly resulted in an ultimate increase in interstate commerce, as

where a public official seeks a payment in return for a favorable

vote that improves the ‘“‘victim’s’’ business and thereby

ultimately increases interstate commerce. Perhaps the language

of the Hobbs Act covering ‘‘whoever in any way or degree af-

fects commerce,’’ 18 U.S.C. § 1951(a), creates jurisdiction over

all extortion with even the most indirect connection to interstate

commerce. We do not need to decide in this case, however,

whether or not Hobbs Act jurisdiction could be based upon such

indirect effects upon commerce because there was evidence

from which the jury could have concluded that Torrey’s bail

bond business itself was interstate commerce.

Torrey testified that he was acting as an agent for a New York

insurance firm, Stiverson Insurance Company, which received a

premium on the bonds he wrote.'® Torrey further testified he

wrote bonds on defendants who lived out of state and that he

travelled out of state with some regularity in order to return

‘© Torrey testified that he wrote bonds as an agent for a St. Louis

insurance firm. The record does not make clear if the New York firm

or St. Louis firm or both firms underwrote the bonds in question in

this case.

— A-22 —

defendants under his bonds who had filed.'' We note that there

was no proof any out-of-state firm was directly involved in the

particular bonds mentioned in the counts upon which appellee

was convicted and no proof of interstate activity directly

relating to these particular bonds. Nevertheless the evidence

does support the conclusion that the alleged extortionate

payments were taken from a business regularly and substantially

involved in interstate commerce, and we think this evidence suf-

ficient to bring appellee’s conduct under the coverage of the

Hobbs Act.

Because the extortionate payments were extracted directly

from an interstate enterprise, this case differs from a Hobbs Act

prosecution of a public official who extorts money from a

purely local enterprise, where the extortioner affects commerce

by extracting funds that would have been used to purchase ar-

ticles in interstate commerce. Under the Hobbs Act an indirect

effect on commerce must be shown where the extortion does not

directly involve an interstate enterprise. In the instant case by

contrast the extortion directly affected interstate commerce,

because the business from which payments were taken was itself

engaged in interstate commerce. United States v. Gates, 616

F.2d 1103 (9th Cir. 1980); United States v. Rabbitt, supra, 583

F.2d at 1023; United States v. Phillips, 577 F.2d 495 (9th Cir.),

cert. denied, 439 U.S. 831 (1978); United States v. Harding,

supra, 563 F.2d at 302; United States v. Brown, supra, 540 F.2d

at 373; United States v. Hathaway, 534 F.2d 386 (ist Cir.), cert.

denied, 429 U.S. 819 (1976). ‘‘Neither the [Hobbs Act] nor the

Constitution requires that the company be engaged in an in-

terstate transaction at the moment of the extortion to support

federal jurisdiction.’’ United States v. Hyde, 448 F.2d 815, 836

'' Torrey testified without contradiction that he wrote 6 to 8 bonds

per year on out of state defendants and travelled 3 to 4 times per year

out of state to apprehend bail jumpers whom he had bonded. Accord-

ing to Torrey, he wrote 50 to 75 bonds per year or else 2 to 3 per week.

—r Pe

(Sth Cir. 1971), cert. denied, 404 U.S. 1058 (1972). The pay-

ment cannot be hidden by an accounting trick that would

demonstrate that the wrongful payment had no effect on the

bottom line of the income sheet. Jd. Whatever the significance

to Torrey of the payment, the jury found that appellee took

money wrongfully from an interstate enterprise.

Furthermore, even if we were to conceive the entire extor-

tionate transaction as a benefit to Torrey’s business, as appellee

suggests, we still conclude interstate commerce was affected.

The evidence indicates that Torrey did not lawfully have to

make the cash payments to appellee; in some cases he went

ahead and actually paid the full amount ($512) due on the bond.

If appellee offered a reduced settlement of $212 or $262 to

bondsmen in return for a wrongful $100 cash payment, appellee

put those bondsmen willing to engage in corruption at a com-

petitive advantage vis-a-vis any bondsman who would not make

the cash payoff. By becoming involved with an enterprise in in-

terstate commerce and creating an incentive to participation in

corrupt practices, appellee affected the quality of interstate

commerce if not its quantity. Cf. United States v. Harding,

supra, 563 F.2d at 300-01 (effect on commerce where official of

state real estate commission solicits payoff in return for offering

to help ‘‘victim’’ cheat on qualifying examination for real estate

brokers engaged in interstate transactions). Therefore, the mo-

ment the extortionate payment was made, there was an effect on

interstate commerce, whether this effect is characterized as ex-

traction of a wrongful tribute by a local official from an in-

terstate enterprise, or as an infusion of corrupt practices into an

enterprise whose activities reached across state lines.

Accordingly, the judgment of acquittal is reversed, and the

case is remanded to the district court with directions to vacate

the judgment of acquittal, reinstate the judgment of conviction

based on the jury verdict, and to sentence appellee.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

am Mit a

APPENDIX ‘“‘C”’

Order of United States Court of Appeals, Eighth Circuit deny-

ing Appeiiee’s Petition for Rehearing and Rehearing En Banc,

August 28, 1986 in United States v. R. C. French.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1096

September Term, 1979

United States of America,

Appellant,

vs.

R. C. French,

Appellee.

Appeal from the United States District Court

for the Eastern District of Missouri

The Court, having considered appellee’s petition for rehear-

ing and suggestions for rehearing en banc and being now fully

advised in the premises, hereby orders the petition for rehearing

and suggestions for rehearing en banc denied.

August 28, 1980