Petition — Hays v. United States

| —e Court, U. S$

- ILED

‘8.0 -8 66 NOV 28 1960

IN THE SUPREME COURT | MICHAEL RoDaK. JR., CLERK

OF THE UNITED STATES OF AMERICA

WILLIAM ARNOLD HAYS,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF, APPEALS

FOR THE SIXTH CIRCUIT

FRANK C. HOLLOMAN, JR.

ATTORNEY FOR THE

PETITIONER

212 ADAMS AVENUE

MEMPHIS, TENNESSEE

38103

(901) 526-6707

QUESTIONS PRESENTED FOR REVIEW.

Has the Sixth Circuit Court of Appeals

improperly construed the scope of the

Hobbs Act (18 U.S.C. 8 1951-2) so as to

deny the petitioner certain fundamental

guarantees by rejecting a distinction

between bribery and extortion under color

of right and inferring an element of the

crime from the status of the defendant?

-a-

TABLE OF CONTENTS

Opinion below .

Jurisdiction

Statutory and Constitutional

Provisions .

Statement of the Case

Argument.

Appendix .

33

TABLE OF AUTHORITIES

CASES

Krulewitch v. United States,

336 U.S. 440 (1949) 9

Morrissette v. United States,

342 U.S. 246 (1950) 10

People v. Dioguardi, 8 N.Y.2d 260,

203 N.Y.S. 2d 870, 168 N.E.2d 683 (1960). 17

United States v. Addonizio,

451 F.2d 49 (3rd Cir. 1971), cert. 23;

denied 405 U.S. 936 (1971) 28

United States v. Braasch,

505 F. 2d 139 (3rd Cir. 1974),cert.

denied 6421 U.S. 910 (1975)... ... 38,22,28

United States v. Butler,

618 F. 2d 411 (6th Cir. 1980), cert.

denied 48 U.S.L.W. 3821 (June 16, 1980) . .10,

14,21

United States v. Coolidge, 14 U.S.

(1 Wheat.) 415 (1816) P 9

United States v. Hall,

336 7. 26 2k3S teen Cit... 297e) . ss 3 eee

United States v. Harding,

553 F. 2d 299 (6th Cir. 1977) 10,14

United States v. Hathaway,

534 F. 2d 386 (lst Cir. 1976) Raiao

United States v. Hudson & Goodwin,

11 U.S. (7 Cranch.) 32 (1812) 9

United States v. Hyde,

448 F.2d 815 (5th Cir. 1971), cert.

denied 404 U.S. 1058 (1972) cae

-C-

United States v. Kahn, 472 F.2d 272

(2nd Cir. 1973) yh Oe oe BS

United States v. Laudini,

134 F. 2d 847 (3rd Cir. 1943) 12

United States v. Mazzei,

o24 F. 2d 639 (3rd Cir. 1975) 22,24

United States v. Nardello,

393 U.S. 286 (1969) 30

TREATISES

31 Am Jur 2d Extortion, Blackmail, Etc.

S81, p.900 .

11 C.J.S. Bribery 8 1, p.840.

35 C.J.S. Extortion 8 1, p.355

35 C.J.S. Extortion 8 2, p.358 .

ao ©.J.8.. Extortion 6 15 Bb. (1), p.370 .

STATUTES

eu eG: BS ESR. .

U.S. Const., Amend. 5.

NO.

IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

OCTOBER TERM, 1980

WILLIAM ARNOLD HAYS,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

William Arnold Hays petitions for a writ

of certiorari to review the judgment of the

United States Court of Appeals for the Sixth

Circuit entered in this cause October 2, 1980.

OPINIONS BELOW.

The judgment of the Court of Appeals was

rendered October 2, 1980 with a brief opinion.

A copy of the order is made Appendix A. No opin-

ion was rendered by the district court.

JURISDICTION.

The judgment of the court of appeals was

entered October 2, 1980, and the petition is

being filed within 60 days of that date.

This Court's jurisdiction is invoked under

28 U.S.C. § 1254 (1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The petitioner was convicted of a

violation of 18 U.S.C. § 1952, which provides

in pertinent part:

(a) Whoever in any way or degree

obstructs, delays or affects commerce or the

movement of any article or commodity in

commerce, by robbery or extortion or attempts

or conspires so to do, or commits or

threatens physicial 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

$10,000.00 or imprisoned not more than

twenty years, or both.

-

(b) As used in this section -

Kick

(2) The term "extortion" means the

cbtaining 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.

The Fifth Amendment to the United States

Constitution provides in pertinent part:

"No person shall ... be deprived of life

or liberty, or property, without due process

oc Lew...”

STATEMENT OF THE CASE.

Petitioner William Arnold Hays was

indicted on seven counts of obtaining monies

under color of official right on seven

different occasions from two persons, in

violation of 18 U.S.C. § 1951 (the Hobbs Act).

The petitioner occupied an executive

position in Shelby County, Tennessee govern-

ment. The foundations of all counts in the

indictment are theorhetically identical. The

thrust of the charges was that the petitioner,

. ?

through his position, manipulated the contract

bid system through which county business was

done or used his position to advance priori-

ties in land acquisition by the county for

road building.

The Government maintained that certain

parties made payments to the petitioner as a

result of the petitioner's manipulations,

said payments focusing on the petitioner's

position as an executive in county government.

The jury convicted the petitioner only

as to six of the seven counts of the Indict-

ment. The proof consisted mainly of the

testimony of a former county executive who

was an unindicted aider and abettor as to

two counts and two businessmen who testified

they made payments either to the petitioner

or persons who were to forward the monies

to the petitioner.

The petitioner was found guilty as to

Count I of the Indictment of obtaining

$4,500.00 from James Edward Hockaday whose

company had subcontracted defoliant chemical

4.

sprayi F : i

praying, work from the company which had been

» s . *y* *«s ;

the successful bidder through the county's

contract bid system. Hockaday testified that

he made this payment in cash to the petitioner

in the petitioner's car.

As to Count II, the petitioner was found

to have received, along with one James L.

Butler, $2,500.00 from Hockaday. Hockaday's

company had been the successful bidder on the

sale of certain equipment to the Shelby County

government.

As to Count III, the petitioner was

found guilty of receiving $1,250.00 from

Hockaday. Again Hockaday's company had

successfully bid for the sale of certain

equipment to the county.

As to these three counts Hockaday's

testimony was consistently that the bid

system was manipulated so that his company

or in Count I, a company with whom he had

arranged to subcontract, would be the

successful bidder. Hockaday further

testified that these payments were kick-

_F

backs or pay-offs arising out of the bids.

The petitioner was acquitted as to Count

IV.

The petitioner was found guilty as to

Count V consisting of the receiving of

$3,750.00 from Hockaday. A company owned

by Hockaday and one Jerry Lucas was the

successful bidder on a tree-trimming contract.

Hockaday's testimony was that he paid the

$3,750.00 to Lucas to give to the petitioner.

This $3,750.00 was said to have constituted

Hockaday's one-half contribution to the pay-

off due on the contract. Lucas refused to

testify at the trial, invoking the Fifth

Amendment privilege. Hockaday testified

that he did not know whether or not the

petitioner ever received the money but did

state that he felt he had to make the pay-

ment to do business with the county.

The petitioner was found guilty as to

Counts VI and VII which are separate pay-

ments arising out of the same event. A

6.

property developer, Cary Whitehead, testified

that as a result of the advancement of the

priority of a road through land owned by hin,

he made two separate payments to the

petitioner.

Whitehead testified that he made an

$1,800.00 payment to the petitioner

personally. He then testified that he paid

$8,000.00 to one James Cole who did not

testify at the trial for delivery to the

petitioner. These two payments con:tituted

Counts VI and VII of the Indictment.

The petitioner testified in his own

defense and denied that he received any

monies whatsoever.

The trial was held in the federal dist-

rict court for Western District of Tennessee

pursuant to the jurisdiction vested in that

court by 18 U.S.C. §3231.

The testimony at the trial was lengthy

and complicated, consisting in great part of

the procedures and politics of Shelby County

government. Myriad Matters seemingly unre-

7.

lated to the charges in the indictment were

also made a part of the testimony.

The petitioner has limited his reference

here to those events bearing directly on the

transactions in which the defendant is said to

have been the recipient of a payment.

ARGUMENT.

I. The conduct of the petitioner was

such as to constitute the passive acceptance

of a bribe, an offense not properly within

the scope of the Hobbs Act.

In the criminal law there exist certain

fundamental precepts:

(1) That conduct which is to be declared

criminal will be clearly defined by statute.

oo. Gomes... Art. 5,69, 10; -ene

(2) That in the federal criminal law,

there are no common law crimes, United States

v. Hudson and Goodwin, 11 U.S. (7Cranch.) 32

(1812); United States v. Coolidge, 14 U.S.

(1 Wheat.) 415 (1816); Krulewitch v. United

States, 336 U.S. 440 (1949); and

(3) That when the legislature "borrows

terms of art in which are accumulated legal

tradition and meaning of centuries of practice,

it presumably knows and adopts the cluster of

ideas that were attached to each borrowed word

in the body of learning from which it was

taken and the meaning its use will convey to

the judicial mind unless otherwise instructed."

Morrisette v. United States, 342 U.S. 246, 263

(1950).

The petitioner would direct the attention

of the Court to that portion of Hobbs Act where

the term "extortion" is defined, 18 U.S.C.

§1951 (2). The petitioner was convicted of

extortion, the obtaining of property from

another, with his consent, "under color of

official right."' The term "under color of

official right" carries a technical meaning

which is descriptive of a certain type of

conduct and does not reach the passive

acceptance of a bribe.

"Under color of official right" is

essentially ambiguous and overbroad until the

court construes and defines the term in

accordance with the rules of construction.

The sixth circuit court of appeals has addres-

sed the meaning of the term as used in the

Hobbs Act in United States v. Harding, 563 F.

10.

2d 299 (6th Cir. 1977) and elaborated on the

scope of the term in United States v. Butler,

618 F. 2d 411 (6th Cir. 1980).

The petitioner urges that the interpre-

tation set out in the Harding and Butler cases

criminalizes conduct not specifically pro-

scribed by statute and, therefore, denies a

defendant charged thereunder his right to

procedural due process, U.S. Const., 5th amend.

The petitioner asserts that extortion

under color of official right does not reach

acceptance of a bribe as the sixth circuit

has determined. The petitioner asserts that

the sixth circuit has reached such a conclusion

in derogation of fundamental constitutional

guarantees and by so doing has usurped the

function of the legislature. It is not

disputed that congress adopted the common law

meaning of extortion in the Hobbs Act.

A. THE COMMON LAW ORIGINS

Bribery is defined as "the voluntary

giving or offering to, or the acceptance by,

any public officer or official, of any sum

ll.

of money, present, or thing of value, to

influence such officer or official in the

performance of any official duty required

of him, or to incline him to act contrary to

known rules of honesty and integrity." 11 C.J.

S., Bribery, § 1, p. 840.

(I)n the common law, the term extortion

has acquired a technical meaning and designates

a crime committed by an officer of the law who,

under cover or color of his office, unlawfully

and corruptly takes any money or thing of value

that is not due to him, or more than is due,

or before it is due.

35 C.J.S. Extortion, § 1, p. 355. Similarly,

31 Am Jur 2d Extortion, Blackmail, Etc., § l,

p. 900, similarly, United States v. Laudini,

134 F. 2d 847, 850, n.1. (3rd Cir. 1943).

Discussions of extortion as a common law

crime as found in the legal treatises consist-

ently speak in terms of affirmative action

on the part of the official: "An officer who

demands fees not allowed by law is ... guilty

of extortion," 35 C.J.S. Extortion, §2, p. 358;

ce.

"It is extortion at common law for an officer

to take more than the prescribed amount ....,

Id. (emphasis supplied).

The petitioner urges that the "taking"

element of the offense of extortion requires

an affirmative inducement on the part of the

official.

The sum alleged to have extorted must

have been demanded as a fee for some official

duty, and must have been demanded of a person

liable therefor; fees voluntarily paid by a

person not liable, although improperly and

unjustly taken, are not obtained by color of

office.

32 €.J3.5. Extortion, § 13 &. (1), p.. 379

(emphasis supplied).

It has also been stated that the person

paying "must have yeildedto official authority,"

31 Am Jur 2d §4, p. 903, and that "no extortion

is committed by an officer who receives ... a

voluntary payment of a fee where noting is

due." Id. at §5, p. 90. The petitioner urges

that the language of 18 U.S.C. §1951 is not

}

so worded as to encompass the acceptance

of voluntary payments but rather adopts the

common law definition of extortion which does

not criminalize the acceptance of voluntary

payments.

B. The Interpretation of the Hobbs

Act by the Court of Appeals for

the Sixth Circuit

The petitioner will address his argument

to the reasoning and conclusions of the sixth

circuit court of appeals in United States v.

Harding, 563 F. 2d 299 (6th Cir. 1977) and United

States v. Butler, 618 F. 2d 411 (6th Cir. 1980).

The petitioner urges that the court's

reliance is misplaced and results in the

judicial creation of a crime.

In Harding the defendant was convicted

of extortion under facts which showed that the

defendant sold the questions and answers to

a licensing examination administered by the

state real estate commission. The defendant

contended that such conduct did not constitute

extortion under the Hobbs Act.

The court first looked to the Hobbs Act

14.

definition of extortion: "the obtaining of

property from another, with his consent,

induced by wrongful use of actual or threat-

ened force, violence, or fear, or under color

of official right." 18 U.S.C. §1951. The

court then reviewed the legislative history

of the act. The thrust of the act was aimed

at outlawing the use of force or violence,

actual or threatened, to affect interstate

commerce, particularly in labor union

activities. Nothing in the legislative

history indicates that when the term "color

of official right" was included in the

statute, anything other than its common law

definition was intended. 563 F 2d. 299, 302-

04.

For some time there existed confusion

among the courts as to whether or not extor-

tion under color of official right required

an additional element of force or duress.

This issue was eventually resolved by the

courts to the effect that the additional

element of force or fear was not required in

15.

instances of extortion under color of

official. 563 F. 2d 299, 305.

The court goes on, however, to rely on

certain of these cases for the determination

that extortion and bribery are not mutually

exclusive. The petitioner argues the court's

reliance is misplaced.

The court acknowledged the common law

definition of extortion, 563 F. 2d 299, 304,

and that its incorporation into modern statu-

tory definitions of extortion which included

an element of force, fear, or duress created

so-e confusion. The court determined that

-!"(t) he common law understanding of extortion

ae does not require this distinction between

extortion and bribery." Id.

The petitioner argues that the common law

meaning of the term extortion is clear and did

indeed distinguish between bribery and extortion.

The court had acknowledged in its review of the

legislative history of the Hobbs Act that the

languages of Hobbs Act was substantially

identical to that of the New York state extortion

16.

statute. Id.

The court recognized that the leading New

York case on extortion held that bribery and

extortion are mutually exclusive, focusing

on the duress requirement of extortion versus

the voluntariness of a bribe. Id., citing

People v. Dioguardi, 8 N.Y. 2d 260, 203 N.Y.S.

2d 870, 168 N.E. 2d 683 (1960), The court

indicated that this New York case was

considered the source of confusion as to

whether not extortion under color of right

involved an element of duress. This point

of confusion has since been resolved, 563 F.

2d 299, 305, but petitioner argues the

Dioguardi fundamental distinction between

extortion and bribery remains viable.

The Sixth Circuit went on to review those

cases which in interpreting the scope of the

Hobbs Act extortion under color of official

right rejected any distinction between bribery

and extortion.

The petitioner would show to the Court

that in each of those cases relied on by the

Lf.

Sixth Circuit in Harding as rejecting, any

distinction in bribery and extortion there

exists a fundamental weakness.

The court relies first on the holding of

Unites States v. Braasch, 505 F. 2d 139 (7th

Cir. 1974). Cert. denied 421 U.S. 901 (1975).

The Sixth Circuit noted that the issue in

Braasch was whether or not force or duress was

an element of extortion under color of official

right, but found that the Braasch court re-

jected the bribery / extortion distinction.

United States v. Harding, 563 F. 2d 299, 305

(6th Cir. 1977).

The petitioner urges that a careful reading

of the Braasch opinion reveals the following.

The defendant in Braasch were police officers

who had actively used their official position

to harass liquor establishments and business

owners had paid the defendants to stop, a

protection pay-off scheme - United States v.

Braasch, 505 F. 2d 139 (7th Cir.1974), cert.

denied 421 U.S. 910 (1975).

18.

The defendants urged their conduct was

acceptance of a bribe and not common Law

extortion. The court (found, however, that the

conduct of the defendants was within the ambit

of common law extortion in that the officers

used the authority and power of their office

to obtain money not due the office or the

officers. Id. at 151. The court went on to

point out that the use of nublic office to

obtain payments was the crux of the violation

and that the focusing of the payor's

motivation on the recipient's off'ce caused

the conduct to "fall within the ambit of 18

U.S.C. § 1951."" Id. The court then stated:

"That such conduct may also constitute ‘classic

bribery" is not a relevant consideration."

Id.

The petitioner would argue to the Court

that indeed whether or not the activity of

the defendants was bribery was not a relevant

consideration. The defendants in Braasch

engaged in a course of conduct which was

19.

"classic extortion", the active misuse of

office to obtain money not due the office or

officer. The defendants were not the passive

recipients of a bribe.

The Sixth Circuit seized upon the Braasch

court's statement that "such conduct may also

constitute 'classic bribery' is not a relevant

consideration" as standing for the rejection

of a bribery / extortion distinction.

United States v. Harding, 563 F 2d 299, 305

(6th Cir. 1977).

In setting out the holding of the Braasch

court, the Sixth Circuit included footnote 7

to the court's opinion. Id. Footnote 7 read:

"As appellants themselves point out, ‘the modern

trend of the federal courts is to hold that

bribery and extortion as used in the Hobbs

Act are not mutually exclussive.'" United

States v. Braasch, 505 F 2d 139, 151 fn./7,

(7th Cir. 1974), relied upon in United States

v. Harding, 563 F 2d 299, 305 (6th Cir. 1977).

20.

The authority relied upon in this

footnote was United States v. Kahn, 472 F.2d

272, 278 (2nd Cir. 1973), Cert. denied 411

U.S. 982. But in Kahn the court was con-

sidering if extortion was an absolute defense

to a bribery charge grounded in state law.

the court noted that New York state law

specifically provided that extortion was an

absolute defense to a bribery charge, but

that the explicitness of New York could not

be read into Pennsylvania law, the law

under consideration by the court. 'Id.at 278.

The court went on to hold that proof of

extortion is relevant on the issues of intent

and willfulness with regard to a charge of

bribery. Id. It was in the context of

court reached the apparent conclusion that

bribery and extortion are not mutually

exclusive.

The apparent result has been picked up

other courts as a basis for the proposition

that activity which constitutes extortion

is not mutually exclusive of activity which

rs

constitutes extortion and as such may form

the basis for a conviction under the Hobbs

Act. United States v. Hathaway, 534 F. 2d

3386, 394 (lst Cir. 1976), Cert. denied 429

U.S. 819 (1977); United States v. Braasch,

505 F. 2d 139, 151 fn. 7, (7th Cir. 1974),

Cert. denied 421 U.S. 910 (1975); United

States v. Hall, 536 F. 2d 313, 321 (10th

Cir. 1976), Cert. denied 429 U.S. 919 (1976).

The greatest tragedy of this reliance

is that the Kahn case did not even involve

a prosecution under the Hobbs Act, but

rather involved a prosecution under the

Travel Act, 18 U.S.C. § 1952, making it a

crime to use an interstate facility to

violate state law, including state laws

against bribery. United States v. Kahn, 472

F. 2d 272, 277 (2nd Cir. 1973).

The Sixth Circuit then went on to rely

on the case of United States v. Mazzei, 521

F. 2d 639 (3rd Cir. 1975), Cert. denied 423

U.S. 1014 (1975), as serving as the renuncia-

tion of a prior recognition of a distinctio.

22.

between bribery and extortion articulated

in United States v. Addonizio, 451 F. 2d 49

(3rd Cir. 1971). Cert. denied 405 U.S. 936

(1971). The Sixth Circuit stated, "(T)he

Third Circuit distinguished its own precedent

in United States v. Addonizio .... and held

that '(a)ny element of coercion that may be

required to establish extortion under the

Hobbs Act is supplied by the misuse of the

defendant's official power.''' United States

v. Harding, 563 F. 2d 299, 305-6 (6th Cir.

1977).

The petitioner asserts that this state-

ment baldly does not accurately reflect

the distinction between Addonizio and Mazzei.

In Addonizio the Third Circuit in considering

whether or not a contractor's kickback scheme

formed the basis for extortion, noted the

New York courts; distinction between bribery

and extortion: ‘'(W)hile bribery was a volun-

tary payment made in order to exert undue

influence on the performance of an official

duty, extortion involves payment in return for

ea.

something to which the payor is already

entitled. In other words, while the essence

of bribery is voluntariness, the essence of

extortion is duress." 451 F. 2d 49,72 (93rd

Cir. 1971), citing Horstein v. Paramount

Pictures, 22 Misc. 2nd 966, 37 N.Y.S. 2nd 404

(1924). The court in Addonizio went on to find

a lack of voluntariness in the payments made

but did not discount the distinction in bribery

and extortion.

In United States v. Mazzei, 521 F. 2d 639

(3rd Cir. 1975). the defendant at the court of

appeals urged that a Hobbs Act conviction

resting on the obtaining of money "under

color of official right"' required a showing

of coercion on the part of the official.

The defendant relied upon the court's state-

ments in Addonizio that ''while the essence

of bribery is voluntariness, the essence of

extortion is duress."" Id. at 644.

The defendant in Mazzei was a state

senator who actively and personally approached

the payor about the state's leasing premises

from him and informed the payor that a

24.

"contribution" was customary. Id. at 641.

The Third Circuit in Mazzei stated it did not

"agree"’ with the defendant's contention and

held that if a violation of Hobbs Act based

under "color or official right"’ required any

showing of coercion on the part of the official,

the element of coercion" is supplied by the

misuse of the defendant's official power."

Id.

The petitioner would show to the Court

that the language of the Mazzei court is a

reflection of the confusion that once prevailed

among the court as to whether coercion was an

element of extortion under color of official

right. The Third Circuit's language does

not reflect a disregard for the distinction

between bribery and extortion nor does it

distinguish the holdings of Addonizio, as the

Sixth Circuit suggests. United States v.

Harding, 563 F. 2d 299, 305-6 (6th Cir. 1977).

The Sixth Circuit next relied on the case

of United States v. Hathaway, 534, F. 2d 386

(lst Cir. 1976), Cert. denied 429 U.S. 819

z3.

(1977). The defendants in Hathaway urged

that extortion under color of official

right as a violation of the Hobbs Act required

actual or threatened force or violence and

that their activity constituted bribery. Id.

at 393-4. The court held that the Hobbs Act

language adopted the common law meaning of

extortion. The court adopted the Third

Circuit's approach in Mazzei that if force or

coercion as generally contemplated by

statutory extortion is required, then the

misuse of public office supplies that

element. Id. at 393.

The Sixth Circuit set out the holding

of United States v. Hathaway as to the

coercive element of extortion under color of

official right, then stated, "Th (First

Circuit) went on to note that bribery and

extortion as used in Hobbs Act are not

mutually exclusive."' United States v.

Harding, 563 F. 2d 299, 306 (6th Cir. 1977).

The petitioner would show that the

Hathaway court actually stated merely in

26.

dicta, "We agree, however, with recent

federal decisions indicating that bribery and

extortion as used in the Hobbs Act are not

mutually exclusive."' United States v. Hathaway,

534 F. 2d 386, 394 (lst Cir. 1975). The

Hathaway court relied on United States v.

Braasch, 505 F. 2d 139 (/th Cir. 1974), and

United States v. Kahn, 472 F. 2d 272 (2nd Cir.

1972), which have been addressed and distin-

guished as unsound for that proposition

earlier in the petitioner's argument.

The Sixth Circuit noted that the court

in United States v. Hall, 563 F. 2d 313

(10th Cir. 1976) made findings similar to

those of the Hathaway court. The Hall

court stated, "We disagree with the

argument advanced that bribery and extortion

are mutually exclusive. To be sure they are

distinct crimes .... It cannot be said that

in a bribery case there is never an aspect of

coercion on the part of the bribee."" Id. at

321. The Hall court relied on United States

aT

v. Addonizio, United States v. Hyde, United

States v. Kahn, and United States v. Braasch,

all of which have been set out in petitioner's

argument previously except the case of United

States v. Hyde.

In United States v. Hyde, 448 F 2d 815

(Sth Cir. 1971), Cert. denied 404 U.S. 1058

(1972), the court continued to recognize a

distinction between bribery and extortion.

Speaking of extortion, the court said: "The

distinction from bribery is therefore the

initiative and purpose on the part of the

official and the fear and lack of voluntari-

ness on the part of the victim.” Id. at 833.

The Sixth Circuit in Harding drew on

all these cases as standing for the propo-

sition that under the Hobbs Act there is no

distinction between bribery and extortion.

The rejection of a distinction is amplified

the court's apparent adoption of the

proposition that if involuntariness is the

essence of extortion, then the focusing of the

payor's motivation on the payee's office makes

28.

out a case of extortion. United States v.

Harding, 563 F. 2d 299, 307 (6th Cir. 1977).

The Sixth Circuit unequivocally diregarded

any distinction between bribery and extortion

in United States v. Butler, 618 F. 2d 41l

(6th Cir. 1980), Cert. denied 49 U.S.L.W. 3245

(1980). Relying on its earlier analysis

in United States v. Harding, the Sixth Circuit

stated: "In light of an almost unanimous

holding by the circuits that bribery and

extortion are mutually exclusive, we hold that

any wrongful use of a public official's power

for private personal gain is proscribed by

the Hobbs Act." Id. at 419.

In addition to its reliance on Harding,

the Sixth Circuit stated that its interpretation

in Harding and Butler was supported by this

Courts "broad" interpretation of extortion in

United States v. Nardello, 393 U.S. 286 (1969).

The Sixth Circuit relied upon this Court's

statement:

At common law a public official who under

color of office obtained the property of another

29.

not due either to the office or official

was guilty of extortion. In many states,

however, the crime of extortion has been

statutorily expanded to include acts by private

individuals under which property is obtained

by meand of force, fear or duress.

United States v. Butler, 618 F. 2d 411, 418

(6th Cir. 1980), citing United States v.

Nardello, 393 U.S. 286, 289 (1969).

The petitioner respectfully states that

the remark of this Court is not a "broad

interpretation", as relied on by the Sixth

Circuit, but is merely a reflection of the

status of law.

The Sixth Circuit relied on its analysis

in Harding and the "broad interpretaion" of

this Court to arrive at the conclusion that:

On this analysis, the legal significance

of the distinction between a public official

taking a bribe and public official taking

valuables under threat (common law extortion)

is diminished. The 'coercive' element on the

part of the official, and the 'duress' or

30.

"fear' element on the part of the ‘victim’ are

implied from the public official's position of

authority over the victim.

United States v. Butler, 618 F. 2d 411, 418

(6th Cir. 1980).

The petitioner respectfully argues that

the result of the Sixth Circuit's interpreta-

tion is the judicial creation of a new hybrid

crime. The court has ignored the common law

foundation of extortion as used in Hobbs Act.

Instead it has added a new element to the

crime, implied this new element from the status

of the defendant, and incorporated a separate

crime into the reach of the Hobbs Act.

The court has achieved this by inferring

that whenever an individual makes a payment to

a public official and the motivation for such

payment focuses on the office of the payee,

there is no voluntariness on the part of the

payor.

By so presuming, the court has, for all

practical purposes, done away with the defense

of bribery to the crime of extortion. The

ak ae

¥j

court has effectively incorporated the crime

of bribery into the crime of extortion. In

so doing the court has also made a victim

of the person who initites the bribe, there-

fore, immunizing from prosecution one who

might rightfully be a defendant.

The petitioner asserts that under a

proper, constitutional interpretation of the

Hobbs Act, his conviction in the trial court

should have been set aside.

CONCLUSION.

The petitioner would show that the

foregoing establishes that the lower court

has departed from accepted and usual

course of judicial proceedings and prays that

this Court exercise its power of supervision

and issue the writ of certiorari.

RESPECTFULLY SUBMITTED,

Frank C. Holloman, Jr.

Attorney for the Petitioner

212 Adams Avenue

Memphis, Tennessee 38103

(901) 526-6707

32

APPENDIX

33

80-5016

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

V.

WILLIAM ARNOLD HAYS,

Defendant- Appellant.

/

Before: ENGEL and MERRITT, Cicuit Judges, and

GUY, District Judget

The defendant William Arnold Hays appeals

from a judgment of conviction following a ver-

dict of guilty of extortion under the Hobbs Act,

18 U.S.C. 8 1951-1952. His principal assignment

of error is his claim that the conduct proved,

at best, that he was guilty of accepting a

bribe, an offense not within the proper scope

+ Hon. Ralph B. Guy, Jr., Judge, United States

District Court for the Eastern District of

Michigan, sitting by designation.

(1)

of the Hobbs Act. Hays' assertion in this regard

has been previously considered by this court and

decided adverse to his claim in the companion

case of United States v. Butler, 618 F.2d 41l

(6th Cir. 1980).

Hays also asserts that the district court

erred when it failed to declare a mistrial after

learning that a juror had failed to disclose on

voir dire that her nephew was prosecutor for the

City of Memphis. Defendant also claims that the

court erred in permitting the use before the

jury of charts which were confusing and mis-

leading; that it erred in overruling defendant's

motion for a directed verdict of acquittal as

to counts 5 and 7 of the indictment; and fur-

ther, that it erred in its instructions to the

jury as to the elements of a violation of the

Hobbs Act.

Upon consideration, the court is of the

opinion that appellant's claims of error are

without merit. Accordingly,

IT IS ORDERED that the judgment of the

district court is affirmed.

(2)

ENTERED BY ORDER OF THE

COURT

/s/ John P. Hehman

Clerk

Issued as mandate: October 24, 1980

Costs: None

(3)

CERTIFICATE OF SERVICE

I, Frank C. Holloman, Jr., Attorney for

the petitioner, William Arnold Hays, do hereby

certify that I have served a copy of the

foregoing Petition for Writ of Certiorari

to the United States Court of Appeals for the

Sixth Circuit filed on behalf of William

Arnold Hays by depositing same in a United

States post office or mailbox, with first-

class postage prepaid, addressed to the

Solicitor General, Department of Justice,

Washington, D.C. 20530, on this the

day of :

1980.

Frank C. Holloman, Jr.