# Petition — Hays v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0865%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 965

## Text

| —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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0865%3A1. Public record. Not legal advice.