Opposition — Hays v. United States

No. 80-866

~-

In the Supreme Court of the United States

OCTOBER TERM, 1980

WILLIAM ARNOLD HAYS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases:

Hyden v. United States, cert.

denied, No. 80-5678 (Jan 12, 1981) .....

Mazzei v. United States, 423 U.S.

es We erecnceseeceens

United States v. Braasch, 505 F. 2d 139,

cert. denied, 421 U.S. 910 .............

United States v. Brown, 540 F. 2d 364 ...

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

cert. denied, No. 79-6479 (June 16, 1980)

United States v. Cerilli, 603 F. 2d 415,

cert. denied, 444 U.S. 1043 ............

United States v. French, 628 F. 2d 1069,

cert. denied, No. 80-479 (Nov. 3, 1980) ..

United States v. Grande, 620 F. 2d

DEGRA, COSC ERSCe OVO SSO NODOHORT DENS

United States v. Hall, 536 F. 2d 313,

cert. denied, 429 U.S.919 .............

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

cert. denied, 434 U.S. 1062 ............

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

cert. denied, 429 U.S. 819 .............

United States v. Hedman, 630 F. 2d

a ais cdc ie ta seu hea ean

United States v. Laudani, 134 F. 2d 847 ..

United States v. Phillips, 577 F. 2d 495,

cert. denied, 439 U.S. 831 .........005-

wry :

Cases—Continued:

United States v. Trotta, 525 F. 2d

1096, cert. denied, 425 U.S. 971 ...........

United States v. Williams, 621 F. 2d

RE Ee cls (A SORE |

Statute:

Hobbs Act, 18 U.S.C. 1951 ......... eee eee

Page

In the Supreme Court of the Mnited States

OCTOBER TERM, 1980

No. 80-866

WILLIAM ARNOLD HAYS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that the court of appeals has improp-

erly construed the Hobbs Act, 18 U.S.C. 1951, to encom-

pass conduct that constitutes bribery rather than extortion.

1. Following a jury trial in the United States District

Court for the Western District of Tennessee, petitioner was

convicted on six counts of unlawfully obtaining money

under color of official right, in violation of 18 U.S.C. 1951.

He was sentenced to 18 months’ imprisonment and a $5,000

fine.

Petitioner was a high ranking official with the county

- government of Shelby County, Tennessee. The evidence at

trial showed that he received money from two local busi-

nessmen in connection with contracts between the busi-

nessmen and the county government. He received a total! of

2

some $12,000 in “kickbacks” from James Edward Hocka-

day in connection with four contracts obtained by Hocka-

day (Counts I-III, V). He also received approximately

$10,000 from a local real estate developer in two separate

payments, in connection with an arrangement under which

the developer received priority on a road project that went

through land he owned (Counts VI-VII) (Pet. 3-7).!

Two other Shelby County officials were convicted in

connection with the same kickback scheme. The court of

appeals affirmed these convictions in a thorough opinion

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

this Court subsequently declined to review that decision

(No. 79-6479, cert. denied (June 16, 1980), and No. 80-5678,

cert. denied (Jan. 12, 1981)). Relying on its decision in the

Butler case, the court of appeals affirmed petitioner’s con-

viction by order (Pet. App. 1-3).

2. Petitioner raises the same issue that was raised by the

defendants in the Butler case: whether the Hobbs Act, 18

U.S.C. 1951, applies to the “passive” receipt of funds by

public officials when the receipt of funds is not accompan-

ied by force, threats of force, or express official coercion.

That conduct, petitioner contends, constitutes acceptance

of a bribe, not “extortion”, and it therefore does not fall

within the reach of Section 1951.

Precisely the same claim was raised by Butler and Hyden

in petitioner’s companion case, United States v. Butler,

supra. Both Butler and Hyden raised the issue before this

Court, and the Court denied certiorari in both cases. Butler

v. United States, No. 79-6479 (June 16, 1980); Hyden v.

United States, No. 80-5678 (Jan. 12, 1981). See also French

v. United States, No. 80-479 (Nov. 3, 1980); Cerilliv. United

'The evidence showed that the developer made an $1,800 payment

directly to petitioner and an $8,000 payment to an intermediary for

delivery to petitioner (Pet. 7).

3

States, 444 U.S. 1043 (1980); Trotta v. United States, 425

U.S. 971 (1976); Mazzei v. United States, 423 U.S. 1014

(1975); Braasch v. United States, 421 U.S. 910 (1975). For

the reasons stated in our briefs in opposition to petitions for

a writ of certiorari in those cases,? we submit that certiorari

should be denied here as well.

The courts of appeals have unanimously rejected the

construction of the Hobbs Act for which petitioner con-

tends. See, e.g., United States v. Hedman, 630 F. 2d 1184,

1194-1195 (7th Cir. 1980); United States v. French, 628

F. 2d 1069, 1071-1075 (8th Cir. 1980), cert. denied, No.

80-479 (Nov. 3, 1980); United States v. Williams, 621 F. 2d

123, 124 (Sth Cir. 1980) (coliecting cases); United States v.

Grande, 620 F. 2d 1026, 1031 (4th Cir. 1980); United States

v. Cerilli, 603 F. 2d 415, 425-426 (3d Cir. 1979), cert. denied,

444 U.S. 1043 (1980); United States v. Phillips, 577 F. 2d

495, 503 (9th Cir.), cert. denied, 439 U.S. 831 (1978); United

States v. Harding, 563 F. 2d 299, 302-307 (6th Cir. 1977),

cert. denied, 434 U.S. 1062 (1978); United States v. Hall,

536 F. 2d 313, 321 (10th Cir.), cert. denied, 429 U.S. 919

(1976); United States v. Hathaway, 534 F. 2d 386, 393 (Ist

Cir.), cert. denied, 429 U.S. 819 (1976); United States v.

Trotta, 525 F. 2d 1096, 1098-1099 (2d Cir. 1975), cert.

denied, 425 U.S. 971 (1976). Consistent with the plain lan-

guage of the Act, these courts have uniformly held that

Section 1951 prohibits the taking of property “under color

of official right” even absent proof of inducement by actual

or threatened force, violence, or fear.

Petitioner contends that at common law extortion “under

color of official right” required some kind of affirmative

action by the public official, rather than merely passive

acceptance of a payment for some unauthorized service or

*We are providing petitioner with a copy of our response in Butler.

4

benefit conferred. Even the authorities relied on by peti-

tioner establish, however, that common law extortion

under color of official right included both “demanding”

money and “taking” money if the defendant was a public

official. See Pet. 11-13; United States v. Laudani, 134 F. 2d

847, 851 n.1 (3d Cir. 1943). Likewise, although petitioner

asserts that the Sixth Circuit has incorrectly held in his case

that extortion and bribery are not mutually exclusive, the

courts of appeals have uniformly rejected that claim.?

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

WADE H. MCCREE, JR.

Solicitor General

FEBRUARY 198]

31n addition to the cases cited above, see United States v. Brown, 540

F. 2d 364, 371-372 (8th Cir. 1976) and United States v. Braasch, 505

F. 2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975).

DOJ-1981-02