Petition — Williams v. United States

R0-10 4 yd [Sirens ce S.

NO. =o

MICHAEL R ~ JR., CLERK

Iu the

Supreme Court of the United States

OCTOBER TERM, 1980

HENRY E. WILLIAMS,

Petitioner

VERSUS

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

VIRGIL M. WHEELER, JR.

Suite 611

Whitney Bank Building

New Orleans, Louisiana 70130

[504] 524.0681

And

HERBERT SHAFER

432 Delmont Drive, N.E.

Atlanta, Georgia 30305

[404] 266-8827

Counsel for Petitioner

NAT ANNETTE ATER EERIE LENE RUE

AB Letter Service, inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED

Whether coercion is an essential element of the

offense of obtaining property “under color of official right”

under the Hobbs Act. (18 U.S.C. § 1951 (a)(b)(2) ).

ii

TABLE OF CONTENTS

PAGE

Mee rer re re re eo 1

reer eee eer eT rere er ee ee Rs! 1

Cabins Pues 6 ag oasis 0 hdc ok a kee kee eee i

Rentane ME ion ced cuccvauee sued Oe eeeee eee 2

DROMONOIE 6 666s vane nea ve ees cine h ake 0) eee eee 2

Reasons for Granting the Wilt... .... 00060 6sdeenpexanes 5

eo PEUTETEEE TT ee eee TTT ee 16

APPENDIX

Appendix A. Opinion of the United Siates Court of Appeals

For the Fifth Circuit Entered July, 7, 1980A-1

Appendix B. Opinion of the United States District For the

Eastern District of Louisiana Entered June,

20, 1980 A-12

Appendix C. Order Denying Petition For Rehearing and Sug-

mE For Rehearing En Banc entered Octo-

r 27, 1980 A-38

TABLE OF AUTHORITIES

CASES:

Bianchi v. United States, 219 F.2d 182, 193 (8th Cir.) cert den.,

549 US, 924. (0998) ... «seeds «cde ae 13, A-6

Cape v. United States, 283 F.2d 430 (9th Cir.) (1960)...... 11

Stirone v. United States, 361 U.S. 212 (1960) ............ 11

Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69 S.Ct.

290, 293, 93 1..28.209 11909)... ckcctviclseweee 15

United States v. Brown, 540 F.2d 364, 371-72 (8th Cir.

SOU... 5 oh dascocnsctbeava cu 7,14

iii

United States v. Butler, 618 F.2d 411 (6th Cir. 1980) ....... 7

United States v. Cerilli, 603 F.2d 415, 427 (3rd Cir. 1979). . .14

United States v. Critchley, 353 F.2d 358 (3rd Cir. 1965)... .11

United States v. Culbert, 435 U.S. 371,373 (1978)......... 13

United States v. Hall, 536 F.2d 313, 320-21 (10th Cir.). cert.

den. 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d

TE ON SE ER ES A abe ene 7,14

United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.)

den. 429 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976) ..... 7,14

United States v. Hyde, 448 F.2d 815, 832-33 (1971) ....... 13

United States v. Kenny, 462 F.2d 1205 (3rd Cir.) cert. den.

SO OES SRE ERE eae een ey 7

United States v. Kramer, 355 F.2d 891 (7th Cir. 1966) ..... 11

United States v. Kubacki, 237 Fed. Supp. 638

I or ry a en aes 13

United States v. Local 807, 315 U.S. 521 (1942) .......... 10

United States v. Maze, 414 U.S. 395, 398 n.2 (1973) ....... 16

United States v. Mazzei, 521 F.2d 639 (3rd Cir.) (en banc),

cert. den., 433 U.S. 1014 96 S.Ct. 446 46 L.Ed.2d 385

RETA GA CANE See ae a OO Peo 15

United States v. Nardello, 393 U.S. 286, 289 (1969) ........ 8

United States v. Price, 507 F.2d 1349, 1350 (4th Cir.

Ro ca cee ak Vehiaeas tates 7,14

United States v. Provenzano, 334 F.2d 678 (3rd Cir. 1964) . .11

United States v. Staszcuk, 502 F.2d 875, 878 & n.5 (7th Cir.

oo PEEPS TLS RR SEIT arte DO er 7,14

iv

United States v. Sutter, 160 F.2d 754 (7th Cir. 1947) ...... 12

United States v. Tolub, 309 F.2d 286 (2d Cir. 1962) ....... 11

United States v. Trotta, 525 F.2d 1096, 1099-1101 (2nd Cir.

1975), cert. den., 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.

SNE NINE io ok cc eh. sdk Ae ae 7,14

STATUTES: PAGE

Se ES os ws Shad Oh be 4k e dD ee bE Ken ces 13

SO tiM: Cele BONEN ta) TH) OD). 2. oc occ cccccncccv cscs i,2

i oh cans ccbwn cen ee ss 1

SAE OIE TROON) ooh 5s. oc kas ce ceeas tees 10

MISCELLANEOUS

A New Federal Antiracketeering Law, 35 Geo. L.J. 362,

Sy 8k ns ae heck ak Cea sent 10

Antiracketeering Act, 18 U.S.C. §420 (1934)........... 9,10

Hearings Before the Senate Comm. on Commerce, In-

vestigation of the Matter of So-Called “Rackets”

With a View of Their Suppression, 73rd Cong. 2d

Sess., vols. 1 and 11, pts. 1-6 (1933-34)............04. 10

Perkins on Criminal Law, 2d Edition, 368................. 8

Ruff, Federal Prosecution of Local Corruption: A Case

Study in the Making of Law Enforcement Policy, 65

Georgetown Law Journal, 1171, 1179-96 (1979)..... 5,7,15

ae ee OE Te kik 6 6s. co ds bc dae UceMcwneens’ 8

4W. Blackstone Commentaries, 141 .............000000es 8

ee A ee re eee 8

1

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

HENRY E. WILLIAMS,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Henry E. Williams, respectfully

prays that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A,

infra) is reported at 621 F.2d 123. The opinion of the district

court (App. B, infra) is reported at 480 Fed. Supp. 1040.

JURISDICTION

A petition for re-hearing with suggestion for re-

hearing en banc was denied on October 27, 1980. (App. C).

This petition for a writ of certiorari has been filed within sixty

days of the entry of that judgment. The jurisdiction of this

Court is invoked under 28 U.S. Code 51254(1).

2

STATUTE INVOLVED

18 U.S. Code §1951(a)(b)(2) provides:

Interference with commerce by threats and violence

(a) Whoever in any way or degree obstructs, de-

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

commodity in commerce, by robbery or extortion or attempts

or conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a plan or

purpose to do anything in violation of this section shall be

fined not more than $10, 000 or imprisoned not more than

twenty years, or both.

(b) As used in this section - -

(2) The term ‘‘extortion’”’ means the obtain-

ing 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.

STATEMENT OF THE CASE

The Petitioner, a member of the Jefferson Parish,

Louisiana, School Board, received, without ‘‘demand or

threats’ (Govt. App.Br. 6), 1 $4 000 from one Brandin, a gen-

eral contractor doing business with the School Board,

I. Govt.App.Br. nage numbers are references to

the Original Brief of the United States filed in the appellate

court wherein the government either concedes, or is the de-

clarant of the statement of facts referred to.

3

Arguiendo, but not conceding this controverted factual issue,

the money was given to Williams because of his official posi-

tion.

Harding, an officer with a corporation doing busi-

ness with the School Board, loaned Williams $13,000, which

he needed to defray Mrs. Williams’ medical expenses and to

ameliorate business problems. (Govt. App.Br. 9). He loaned

Williams the money ‘‘for a number of reasons: he was a per-

sonal friend of Williams, he was sympathetic and empathic to-

wards Williams and Williams was an influential member of the

School Board.” (Govt. App. Br. 9-10). Harding said that ‘the

felt the transaction ‘was a loan’ and there was no specific offer

to do anything in exchange for the money.” (Govt. App. Br.

13).

Harding invited Williams and his wife to go with

him to Las Vegas. Harding was unable to make the trip, so

they went without him. (Govt. App. Br. 13).

These three transactions were the basis for the

three counts in the indictment charging a violation of Title 18

U.S.C., §1951 (The Hobbs Act).

The jury rendered a verdict of guilty as to all

counts.

Thereafter, Williams filed a motion in arrest of

judgment alleging that the indictment was fatally defective in

failing to charge an offense against the United States. In a sup-

plemental motion, Williams, for the first time, attacked the

constitutionality of §1951, stating that the statute was fatally

vague, general and indefinite.

4

The district court issued an order arresting judg-

ment and entered judgment in Williams’ favor acquitting him

on all counts. In so doing, it held that the ‘‘color of official

right” part of the extortion definition of the Hobbs Act was

unconstitutional. It stated in part:

“This case involves an unusual and apparently

first attempt in this Circuit to apply the ‘color of official right’

part of the ‘extortion’ definition in the Hobbs Act to activities

of a local public official not involving duress or fear of harm.

“There is no allegation in the indictment, nor is

there any evidence whatsoever, that the defendant used actual

or threatened force, violence or fear, not even of economic

loss, to induce the payments. The government’s position is

that ‘force, violence or fear,’ or the threat thereof, is not essen-

tial to the commission of the offense. . .

“Stripped of verbiage. . the statute as charged in

the indictment provides that ‘Whoever obtains something of

value from another, with his consent, induced under color of

official right’ is guilty of an offense against the United States. .

. . (T)he court holds that the part of the statute at issue is un-

constitutionally vague and that therefore the indictment fails

to state an offense. The motion in arrest is granted, the jury

verdict is set aside, and the indictment is dismissed.

‘‘Alternatively, we hold that even if its meaning is

sufficiently clear to be constitutional, the statute does not

mean what, at the government’s request, the court charged it

to mean. Therefore, although there was ample evidence to sup-

5

port the jury verdict based upon the government’s theory and

the court’s charge as to the meaning of the statute, since the

charge instructed the jury that an essential element of the

crime, coercion, was not an element, and since there was no

evidence of coercion, the conviction cannot stand. According-

ly, as an alternative to the order granting the motion in arrest

of judgment, the court sua sponte sets aside its judgment deny-

ing defendant’s motion for judgment of acquittal and grants

the motion.” (App. B, infra ).

The Court of Appeals reversed and reinstated the

jury verdict. (App. A, infra).

Judge Tate, concurring, said:

‘‘Nevertheless, I feel impelled to state, for benefit

of en banc consideration or further review, that — were the slate

clean of prior decisions by other circuits — it is clear to me (as it

was to the district judge) that the congressional intent to punish

racketeering by extortion, with penalties of up to twenty years

imprisonment, included that the extortion be by coercion, eco-

nomic or otherwise. Ruff, Federal Prosecution of Local Corrup-

tion: A Case Study in the Making of Law Enforcement Policy,

65 Georgetown Law Journal, 1171, 1179-86 (1977).” (App. A,

infra).

REASONS FOR GRANTING THE WRIT

Not only are there legal principles opposing the

government’s expansive application of the Hobbs Act’s reach,

but there are policy reasons as well.

The extension of the Hobbs Act, jurisdictionally

6

and substantively, by sanctioning the use of the “‘official right”

language to prosecute local bribery, represents a significant

deviation from this Court’s long standing policy of construing

criminal statutes strictly.

» In addition to the doctrine of strict construction of

criminal statutes, concern for the delicate nature of relationship

between the federal and state governments supports the restric-

tive interpretation of the Hobbs Act proposed here.

Decisions in other circuits sanctioning the use of

the Hobbs Act to prosecute local bribery were premised on an

erroneous reading of the statute and its legislative history.

Finally, if as some prosecutors have urged, mere

passive acceptance of money not due is sufficient to convict a

public official of extortion, the statute, so construed, would be

so ambiguous and over-broad as to be unconstitutionally vague.

Normally acceptable and innocent activity might, when done by

a public official, be construed as criminal, and it would be im-

possible to predict the Act’s limits, if any, at the hands of re-

sourceful prosecutors.

Such broad power to determine what activity may

be proscribed is unsettling in the hands of honorable men; in

the hands of vicious, zealous or overly ambitious prosecutors, it

is terrifying.

To guard against such mischief, it is respectfully

suggested that this Court make coercion an essential element of

the offense of obtaining property ‘‘under color of official right”’

under the Hobbs Act.

7

I,

The decision of the Court of Appeals for the Fifth

Circuit, although in accord with the decisions in eight other

circuits, 2 is based on an inadequate analysis of both the con-

gressional purpose underlying the passage of the Hobbs Act, and

the history of the Common Law offense.

A. THE COMMON LAW OFFENSE 3

"At Common Law, extortion was a crime that could

only be committed by a public official. Public office was a

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

393 (ist Cir.), cert denied, 429 U.S. 819, 97 S.Ct. 64,50

2d 79 (1976); United States v. Trotta, 525 F.2d 1096, 1099-

1101 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167,

48 L.Ed. 2d794 (1976); United States v. Kenny, 462, F.2d

1205, 1229 (3rd Cir.), cert. denied, 409 U.S.914, 93 S.Ct.233,

34 L.Ed.2d 176 (1972); United States v. Price, 507 F.2d 1349,

1350 (4th Cir. 1974) (Alternative holding); United States v.

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

502 F.2d 875, 878 & n.5 (7th Cir. 1974), modified in part on

other grounds, 517 F.2d 52 (en banc), cert. denied 423 US.

837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975): United States v.

Brown, 540 F.2d 364, 371-72 (8th Cir. 1976); United Statec v.

Hall, 536 F.2d 313, 320-21 (10th Cir.), cert. denied, 429 U.S.

919,97 S.Ct. 313,50 L.Ed.2d 285 (1976).

3. This brief is drawn largely from the perceptive

article by Prof. Charles F.C. Ruff, former Director, Watergate

Special Prosecution Force, entitled Federal Prosecution of

Local Corruption: A Case Study on the Making of Law Enforce-

ment Policy, 65 Georgetown LJ. 1171 (1977).

necessary element of the crime. Perkins on Criminal Law, 2d

Edition, 368; United States v. Nardello, 393 U.S. 286, 289

(1969). Blackstone described the crime as “‘an abuse of public

justice, which consists in an officer’s unlawfully taking, by color

of his office, from any man, any money or thing of value, that

is not due him, or more than is due, or before it is due.”’ 4W.

Blackstone Commentaries 141.

An in Corpus Juris Secumdum:

(I)n the common law the term ‘ex-

tortion’ has acquired a_ technical

meaning, and designates a crime com-

mitted by an officer of the law who,

under cover or color of his office, un-

lawfully or corruptly takes any money

or thing of value that is not due him,

or more than is due, or before it is

due. In a more enlarged sense, it sig-

nifies any oppression under color or

pretense of right. 35 C.J.S. Extortion,

355-356 (Emphasis added).

What in the United States is considered to be the

‘‘classic’’ extortion o..ense did not develop in England until the

early eighteenth century, and then in the form of a blackmail

statute. The Waltham Black Act of 1722 created a vast num-

ber of new offenses, many of which were punishable by death.

Among these was the prohibition against sending “‘any letter,

without any name subscribed thereto, or signed with a fictitious

name, demanding money, venison, or other valuable thing,” A

subsequent statute made it a crime to attempt to extort by let-

ters threatening to accuse of crime, and in 1776 extortion of

9

money by verbal threat to accuse a man of unnatural practices

was held to be robbery. These larceny-type offenses were col-

lected in the Larceny Acts of 1871 and 1916, and were codified

under the heading of “‘Blackmail”’ in the Theft Act of 1968:

(1) A person is guilty of blackmail if, with a view

to gain for himself or another or with intent to cause loss to

another, he makes any unwarranted demand with menaces; and

for this purpose a demand with menaces is unwarranted unless

the person making it does so in the belief;

(a) that he has reasonable grounds for making

the demand; and

(b) that the use of the menaces is a proper

means of reinforcing the demand.

(2) The nature of the act or omission demanded is

immaterial, and it is also immaterial whether the menaces re-

lated to action to be taken by the person making the demand.

(3) A person guilty of blackmail shall on convic-

tion or indictment be liable to imprisonment for a term not ex-

ceeding fourteen years.

Ruff at 1179 thru 1180. (Footnotes omitted).

B. THE ANTI-RACKETEERING ACT, 18 U.S.C.

§ 420 (1934)

Did Congress intend to reach local corruption by

creating a felony punishable by 20 years in prison without re-

quiring proof of intent to be influenced in one’s official capac-

ity or of intent to obtain property by force or threats?

Initial inquiry into the intended reach of the

Hobbs Act necessarily includes the reach of its predecessor, the

10

Anti-Racketeering Act of 1934. The purposes and application

of the Anti-Racketeering Act are important for two reasons.

First, the language of the two acts is similar. Second, much of

the Hobbs Act hearings and debate concentrated on the inclu-

sion of activities found by the Supreme Court to be outside the

purview of the Anti-Racketeering Act of 1934 in United States

v. Local 807, 315 U.S. 521 (1942). 4

Therefore, consideration of the scope of the Anti-

Racketeering Act helps in determining more precisely the in-

tended reach of the Hobbs Act.

Prior to the passage of the Anti-Racketeering Act,

broad based hearings were conducted. > While fundamentally

4. The Anti-Racketeering Act, 18 U.S.C. §420

(1934) reads in pertinent part:

§420A. Interference with trade and commerce by

violence, threats, etc:

Any person who, in connection with or in relation

to any act in any degree affecting trade or commerce or any

article or commodity moving or about to move in trade or com-

merce - -

a. Obtains or attempts to obtain, by the use of or

attempt to use or threat to use force, violence,

or coercion, the payment of money or other

valuable considerations, or the purchase or ren-

tal of property or protective services, not

including, however, the payment of wages by a

bona fide employer to a bona fide employee; or

b. Obtains the property of another, with his con-

sent, induced by wrongful use of force or fear,

or under color of official right.

5. Hearings Before the Senate Comm. on Com-

merce, Investigation of the Matter of So-Called ‘‘Rackets” With

a View of Their Suppression, 73rd Cong.2d Sess., vols. | and

Ll, pts. 1-6 (1933-34).

11

concerned with racketeering, the hearings failed to clarify the

meaning or scope of the offense and contributed to the amor-

phous quality of racketeering. See United States v. Culbert, 435

U.S. 371, 373 (1978).

But one thing is clear: nowhere in the legislative

history of the Anti-Racketeering Act is there ane word disclos-

ing a Congressional intent to reach corrupt demands by local

officials. For that matter, nor is there one word on the subject

in the legislative history of the Hobbs Act. Debate on the Hobbs

Act was concerned almost entirely with the Act’s effect on or-

ganized labor. See, Note, A New Federal Antiracketeering Law,

35 Geo. L.J. 362, 364 n.23 (1947).

C. THE FIRST TWENTY YEARS AFTER PAS—

SAGE OF THE HOBBS ACT.

For more than twenty years after passage of the

Hobbs Act the activity pursued by federal prosecutors almost

invariably involved labor officials threatening strikes or work

stoppages unless their victims consented to pay extortionist

fees, ©

6. See, e.g., Stirone v. United States, 361 U.S. 212

(1960); United States v. Kramer, 355 F.2d 891 (7th Cir. 1966);

United States v. Critchley, 353 F.2d 358 (3rd Cir. 1965);

United States v. Provenzano, 334 F.2d 678 (3rd Cir. 1964);

United States v. Tolub, 309 F.2d 286 (2d Cir. 1962); Cape v.

United States, 283 F .2d430 (9th Cir. 1960).

At the circuit court level the conviction in Stirone

was affirmed, The Supreme Court reversed on a variance issue.

Judge Hastie dissented at the circuit court level on the grounds

that the Hlobbs Act was being extended too far:

Finally it should be considered and kept in mind

12

D. UNITED STATES vs. KENNY

Until 1947, there was little detailed analysis of the

federal offense of extortion. (18 U.S.C. § 872). In United States

v. Sutter, 160 F.2d 754 (7th Cir. 1947), Judge Minton, for the

Court, held that the federal extortion statute required a greater

showing than was necessary at common law. Relying on a dic-

tionary definition of extortion, he held that a federal employee

commits extortion when he “‘uses his office to place another

under compulsion of fear, force, or the undue exercise of

power, so that such person parts with something of value un-

willingly and involuntarily.” Sutter at 746. In dictum however,

Judge Minton went on to say that the common law ‘‘color of

public office took the place of the force, threats, or pressure im-

plied in the ordinary meaning of the word extortion,” Sutter at

746, an explanation wholly at odds with the true common law

origins of the offense, but later relied on by some courts to de-

that the control and punishment of local extortion

is primarily the business of local or state govern-

ment. The Hobbs Act is auxiliary and partially

duplicating federal superimposition on state law

enforcement. In the view of Congress this is a desir-

able measure of federal assistance to the States in

the exercise of their police power. But where state

power and responsibility are thus primary and the

national government is merely performing an

auxiliary function, we should not be eager to

stretch federal jurisdiction to cover doubtful cases

offering only a tenuous or speculative theory of

federal jurisdiction. 262 F.2d 571, 579 (3rd Cir.

1958).

13

fine the scope of the parallel provisions of the Hobbs Act. See

Bianchi v. United States, 219 F.2d 182, 193 (8th Cir.) (Com-

mon law rule that color of office takes place of force, threat,

and pressure in case of public official not applicable to union

official), cert. denied, 349 U.S. 915 (1955).

In United States v. Kubacki, 237 Fed. Supp. 638

(E.D. Pa.,1965), where the mayor of Reading, Pa., had been

charged with extortion under the Hobbs Act and bribery under

the Travel Act (18 U.S.C., §1952), the district court held that

the two offenses were mutually exclusive, and then acquitted

him on the extortion charge. This same distinction was raised

subsequently by Judge Wisdom in United States v. Hyde, 448

F.2d 815, 832-33 (1971).

The distinction was erased in United States v.

Kenny, 462 F.2d 1205, 3d Cir., cert. denied, 409 U.S. 914

(1972), where the indictment alleged that the political boss of

Hudson County, New Jersey obtained property with consent in-

duced by ‘the wrongful use of fear and under color of official

right.” Id. at 1210 (Emphasis added.) In affirming the

conviction the Third Circuit rejected the appellant’s objection

to a disjunctive definition of extortion on the ground that the

Act “repeats the commonaw definition of extortion, a crime

which could only be committed by a public officer and which

did not require proof of threat, fear or duress.” Jd. at 1229.

It was on the basis of this ‘‘perfunctory analysis of

both the congressional purpose underlying the passage of the

Hobbs Act and the history of the common aw offenses,” Ruff

_—

14

at 1178, that the Kenny decision was swiftly adopted by the

First, (United States v, Hathaway, 534 F.2d 386, 394 (1st Cir.)

cert. den,, 97 S.Ct. 64 (1974)), Second, (United States v. Trotta,

525 F.2d 1096, 1098-99 (2nd Cir. 1975), cert. den., 425 U.S.

971 (1976)), Fourth, (United States v. Price, 507 F.2d 1349,

1350 (4th Cir. 1974)), Seventh, (United States v. Staszcuk, 502

F.2d 875, 877-78 (7th Cir. 1974) Rev'd in part en banc 617 F.

2d 53 (1975) cert. den., 423 U.S. 837 (1976)), Eighth, (United

States v. Brown, 540 F.2d 364, 372 (8th Cir. 1976)), and Tenth

Circuits, (United States v. Hall, 536 F.2d 313, 316-17, 320

(10th Cir.) cert. den. 97 S.Ct. 311 (1976)).

Kenny has not been without its critics. Judge Al-

disert, dissenting in United States v. Cerilli, 603 F.2d 415, at

427, (3rd Cir. 1979), observed that Kenny ‘‘resulted in a per-

petuation of erroneous law not only in (the Third Circuit), but

in the First, Second, Fourth, Seventh, Eighth, and Tenth Cir-

cuits which have followed (the Third Circuit) lead without set-

ting forth a reasoned elaboration for their conclusions.”

Judge Aldisert went on to say:

“It is now my view that our interpretation in

Kenny and its progeny is not supported by the

legislative intent underlying the Hobbs Act nor is

it historically accurate.’ United States v. Cerllli,

supra, 603 F.2d at 427.

And, in a fetching show of contrition, he said:

“I readily acknowledge that I had the opportuni-

ty of taking my present stand in earlier cases of

15

this court, particularly in United States v.

Mazzei, 521 F.2d 639 (3rd Cir.) (en banc), cert.

denied 433 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d

385 (1975), in which I joined Judge Gibbons’

dissent, an opinion that, in my view, moved

somewhat nearer the view I now adopt, but

which nevertheless respected the vitality of

Kenny. A famous statement of Justice Frank-

Furter provides me refuge: ‘Wisdom too often

never comes, and so one ought not to reject it

merely because it comes late.’ Henslee v. Union

Planters Bank, 335 U.S. 595, 600, 69 S.Ct. 290,

293, 93 L.Ed. 259 (1949) (dissenting).”’ Id. n.4.

Judge Tate concurred reluctantly in the panel deci-

sion below. (App. A):

“Nevertheless, I feel impelled to state, for

benefit of en banc consideration or further re-

view, that — were the slate clean of prior deci-

sions by the ofher circuits -- it is clear to me (as it

was to the district judge) that the congressional

intent to punish racketeering by extortion, with

penalties of up to twenty years imprisonment, in-

cluded that the extortion be by coersion, eco-

nomic or otherwise. Ruff, Federal Prosecution of

Local Corruption: A Case Study in the Making of

Law Enforcement Policy, 65 Georgetown Law

Journal 1171, 1179-86 (1977).”

He voiced his ‘‘personal reservations as to the cor-

rectness of these decisions in their misreliance upon inapposite

judicial decisions rather than upon the congressional intent. . .”

(App. A).

16

CONCLUSION

Since Kenny, federal prosecutors have, by slight

encroachments, expanded the application of the Hobbs Act to

factual situations which border on the trivial and frightening.

Here, for example, the petitioner was charged, in one count of

the indictment, in having taken a trip to Las Vegas, an act for

which, arguably, he could have been sentenced up to 20 years.

This alone should invite a closer look at the meaning of the

‘under color of official right’’ language.

Without disrespect, it is just possible that here, as

in United States v. Maze, 414 U.S. 395, 398, n.2 (1973), all of

the circuits have been wrong.

For the foregoing reasons, it is respectfully submit-

ted that the petition for a writ of certiorari should be granted.

Respectfully submitted,

VIRGIL M. WHEELER, JR.

Suite 611

Whitney Bank Building

New Orleans, LA 70130

(504]524-0681

And

HERBERT SHAFER

432 Delmont Drive, N.E.

Atlanta,GA 30305

[404 ] 266-8827

December, 1980

Counsel for Petitioner

CERTIFICATE OF SERVICE

This is to certify that copies of the Petition for

Writ of Certiorari have have served upon the United States of

America by placing three copies thereof in the United States

Mail, postage prepaid, addressed to The Honorable Wade H.

McCree, Jr., Solicitor General, Department of Justice, Washing-

ton, D.C. 20530, and by placing three copies thereof in the

United States Mail, postage prepaid, addressed to the Honorable

John Volz, United States Attorney for the Eastern District of

Louisiana, Hale Boggs Federal Building, 500 Camp Street, New

Orleans, Louisiana 70130. I further certify that all parties re-

quired to be served have been served.

23rd

New Orleans, Louisiana, this day of Decem-

ber, 1980.

VIRGIL M. WHEELER, JR.

611 Whitney Bank Building

New Orleans, Louisiana 70130

(504) 524-0681

Of Counsel for Petitioner

A-1

APPENDIX A

UNITED STATES v. WILLIAMS

UNITED STATES of America,

Plaintiff-Appellant

v.

Henry E. WILLIAMS,

Defendant-Appellee.

No. 79-2584

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

July 7, 1980.

Government appealed dismissal by the United

States District Court for the Eastern District of Louisiana,

Adrian G. Duplantier, J., 480 F.Supp. 1040, of an indictment

alleging criminal extortion by a local public official under the

Hobbs Act. The Court of Appeals, Roney, Circuit Judge, held

that : (1) defendant’s conviction could be sustained absent a

showing of actual or threatened force, violence, or fear, and (2)

the Act was not unconstitutionally vague.

Reversed and remanded.

Tate, Circuit Judge, concurred and filed opinion.

1, Extortion and Threats - - 7

A conviction for extortion under the Hobbs Act

may be sustained upon a finding that property was unlawfully

obtained under color of official right, absent a showing of ac -

tual or threatened force, violence, or fear. 18 U.S.C.A.

§1951(b)(2).

2. Extortion and Threats - - 7

Proof of coercion was not necessary to sustain con-

A-2

viction of school board member for extortion under the Hobbs

Act. 18 U.S.C.A. §1951(b)(2).

3. Extortion and Threats - - 2

Terms of Hobbs Act were not unconstitutionally

vague in that they gave person of ordinary intelligence a reason-

able opportunity to know what was prohibited, so that he may

act accordingly. 18 U.S.C.A. §1951.

Richard T. Simmons, Jr., Asst. U.S. Atty., New

Orleans, La., for plaintiff-appellant.

Virgil M. Wheeler, Jr., New Orleans, La., Herbert

Shafer, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for

the Eastern District of Louisiana.

Before RONEY, KRAVITCH and TATE, Circuit

Judges.

RONEY, Circuit Judge:

The Government here appeals the dismissal of an

indictment alleging criminal extortion by a local public official

under the Hobbs Act. 18 U.S.C.A. §1951. The district court

held the statuce unconstitutionally vague and, alternatively,

held that proof of coercion is necessary to sustain a convic-

tion for extortion under the Act. See 18 U.S.C.A. §1951(a),

(b)(1). We reverse the district court on both of these holdings,

and order that the jury verdict of guilty be reinstated.

Procedurally , defendant, an elected member of the

school board for Jefferson Parish, Louisiana, was charged in a

three-count indictment with knowingly, willfully and unlaw-

A-3

fully affecting interstate commerce by soliciting and receiving,

from a contractor doing business with the school board, air-

line tickets and cash to which neither he nor his office was en-

titled. Defendant was convicted on all three counts by a jury.

Thereafter the district court granted a motion in arrest of judg-

ment, set aside the jury verdict, and dismissed the indictment

on the ground that the statutory prohibition against ‘‘obtain-

ing . . . under color of official right” is unconstitutionally

vague. Fed. R. Crim. P. 34. Alternatively, the court set aside its

previous denial of defendant’s motion for acquittal and granted

the motion on the ground that, even if the statute is sufficiently

clear to pass constitutional muster, coercion is an essential ele-

ment of the crime and was admittedly not proved.

The Hobbs Act proscribes extortion in furtherance

of a plan in violation of the Act. See generally United States v.

Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978).

The critical portion of the Act appears in the definition of ‘‘ex-

tortion.”

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

property from another, with his consent, induced

by wrongful use of actual or threatened force, vio-

lence, or fear, or under color of official right.

18 U.S.C.A. §1951(b) (critical words italicized). The Govern-

ment concedes there was no allegation or evidence that defend-

ant threatened force, violence or fear to induce the payments.

In instructing the jury, the district court stated,

To prove the crime charged in this

case, the government need not prove

that the payments to the defendant

A4

were the result of force or coercion on

his part or from fear on the part of

the giver.

lt is this charge that the district court later held to be error.

To date, eight circuits have directly held that

Hobbs Act violations based on extortion by a public official

need not include proof of threat, fear or duress.See United

States v. Hathaway, 534 F.2d 386, 393 (1st Cir.), cert. denied,

429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976); United States

v. Trotta, 525 F.2d 1096, 1099-1101 (2d Cir. 1975), cert.

denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976);

United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir.), cert.

denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972);

United States v. Price, 507 F.2d 1349, 1350 (4th Cir. 1974) (al-

ternative holding); United States v. Harding, 563 F.2d 299,306-

07 (6th Cir. 1977), cert. denied 434 U.S. 1062, 98 S.Ct. 1235,

55 L.Ed.2d 762 (1978); United States v. Staszcuk, 502 F.2d

875, 878 & n.5 (7th Cir. 1974), modified in part on other

grounds , 517 F.2d 53 (en banc), cert. denied, 423 U.S. 837, 96

S.Ct. 65, 46 L.Ed.2d 56 (1975); United States v. Brown, 540

F.2d 364, 371-72 (8th Cir. 1976); United States v. Hall, 536 F.

2d 313, 320-21 (10th Cir.), cert. denied , 429 U.S. 919, 97

S.Ct. 313, 50 L.Ed.2d 285 (1976). These courts have held that

the disjunctive language of the extortion definition permits a

conviction on a finding that property was unlawfully obtained

either under color of official office or through force or duress.

No circuit has held to the contrary. See generally Annot., 4

A.L.R. Fed. 881 (1970).

A-5

The language, ‘under color of official right,” is

consonant with the common law definition of extortion, which

could be committed only by a public official taking a fee under

color of his office, with no proof of threat, force or duress re-

quired, See Perrin v. United States, 444 U.S. 37, 100 S.Ct. 311,

62 L.Ed.2d 199, 206-208 (1979); United States v. Nardello,

393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969);

United States v. Hathaway, 534 F.2d at 393; R. Perkins, Crim-

inal Law 367-71 (2d ed. 1969). The coercive element is supplied

by the existence of the public office itself. United States v.

Hathaway, 534 F.2d at 393; United States v. Mazzei, 521 F.2d

639, 64445 (3d Cir.) (en banc), cert. denied , 423 U.S. 1014,

96 S.Ct. 446, 46 L.Ed.2d 385 (1975). ‘‘Threats, fear and duress

became express elements only when the crime was later broad-

ened to include actions by private individuals, who had no offi-

cial power to wield over their victims.’’ United States v. Hatha-

way, 534 F.2d at 393 (citing United States v. Crowley, 504

F.2d 992 (7th Cir. 1974); United States v. Kenny, 462 F.2d

1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233,

34 L.Ed.2d 176 (1972)).

[1,2] With so many decisions on point, extended

discussion is unnecessary. Considering the reasoning of these

cases persuasive, we hold that a conviction under the Hobbs Act

may be sustained upon a finding that property was unlawfully

obtained under color of official right, absent a showing of

“actual or threatened force, violencc, or fear, . . .” 18 U.S.C.A.

§1951(b)(2). This decision disposes of the district court's al-

A-6

ternative action in directing acquittal.

The district court held there was ample evidence to

support the jury verdict under the court’s charge for this mean-

ing of the statute. This leaves the question of whether the

Hobbs Act is unconstitutionally vague.

Although this Circuit has never ruled on a constitu-

tional challenge to the specific portion of the Hobbs Act under

which defendant was charged, convictions under the Hobbs Act

in the face of general constitutional attacks have been sustained.

See, e.g., United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir.

1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d

361 (1976); Bianchi v. United States, 219 F.2d 182, 196 (8th

Cir), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249

(1955).

[3] The issue is whether the words of the statute

are sufficient to inform a public official of conduct that is sub-

ject to criminal sanctions. We hold the terms of this statute to

be sufficiently precise to “give the person of ordinary intelli-

gence a reasonable opportunity to know what is prohibited, so

that he may act accordingly.” Grayned v. City of Rockford,

408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222

(1972); see United States v. Mazzei, 390 F.Supp. 1098, 1104-05

(W.D. Pa.), aff'd in part and modified in part, 521 F.2d 639 (3d

Cir.) (en banc), cert, denied, 423 U.S. 1014, 96 S.Ct. 446, 46

L.Ed.2d 385 (1975). See generally United States v. Quinn, 514

F.2d at 1268; Bianchi v. United States, 219 F.2d at 196. It can-

not be gainsaid that the statute on its face encompasses bribery

A-7

of a public official, and that ‘under color of official right’’ has a

“meaning, as a legal term of art, [that] is well-defined.” United

States v. Trotta, 525 F.2d at 1100; see United States v. Braasch,

505 F.2d 139, 151 & n.8 (7th Cir. 1974), cert. denied, 421 U.S.

910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975).

In United States v. Culbert, 435 U.S. 371, 98 S.Ct.

1112, 55 L.Ed.2d 349 (1978), a defendant tried under the

Hobbs Act claimed a “racketeering” requirement should be read

into the statute. In rejecting the defendant’s proposed construc-

tion and his vagueness attack, the Court noted: “(W]e need

not concern ourselves with these potential constitutional diffi-

culties because a construction that avoids them is virtually com-

pelled by the language and structure of the statute.” 435 U.S. at

374, 98 S.Ct. at 1114. The Court found no need to invoke the

doctrine that any ambiguity be resolved in favor of lenity, be-

cause the Court found no ambiguity in the statute. 435 U.S. at

371, 98 S.Ct. at 1112; see United States v. Wiltberger, 18 U.S.

(5 Wheat.) 76, 95, 5 L.Ed. 37 (1820); cf. United states v. En-

mons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379

(1973) (Court rejects Government’s suggestion that meaning of

Hobbs Act’s definition of extortion be expanded, noting that

criminal statutes must be construed strictly). ‘‘[H ]ere Congress

has conveyed its purpose clearly, and we decline to manufacture

ambiguity where none exists.” United States v. Culbert, 435

U.S. at 379, 98 S.Ct. at 1116. The Court concluded ‘‘that Con-

gress intended to make criminal all conduct within the reach of

the statutory language.” 435 U.S. at 380, 98 S.Ct. at 1117.

A-8

Such a broad reading was recently reaffirmed by this Court in

United States v. Summers, 598 F.2d 450, 454 (5th Cir. 1979).

See also Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct.

270, 272, 4 L.Ed.2d 252 (1960); United States v. Chiantese,

582 F.2d 974, 980 (5th Cir. 1978), cert. denied, 441 U.S. 922,

99 S.Ct. 2030, 60 L.Ed.2d 395 (1979); United States v. Hyde,

448 F.2d 815, 837 (5th Cir. 1971), cert. denied, 404 U.S. 1058,

92 S.Ct. 736, 30 L.Ed.2d 745 (1972). But cf. United States v.

Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973)

(Hobbs Act held inapplicable to use of violence to achieve legiti-

mate union objectives). The absence of any ambiguity in the

statute and the concomitantly broad reading which the

Supreme Court and this Circuit have ascribed to the Hobbs Act

support the conclusion that it is not unconstitutionally vague

on its face. We so hold.

The evidence here showed that when defendant,

a member of the school board, made his requests for money,

the other parties were aware of his public office. United States

v. Braasch, 505 F.2d at 151. One payor, Arthur Brandin, testi-

fied that if defendant had not been a school board member, he

would not have given defendant $4000. The evidence demon-

strated that defendant accepted the money and gratuities,

knowing he was not entitled to them in the discharge of his law-

ful duties, and that payment was induced by his official posi-

tion. Neither on its face nor as applied in this case is the Hobbs

Act unconstitutionally vague. The district court’s decision is re-

versed, and the case is remanded for reinstatement of the jury

A-9

verdict of guilty on three counts of violating 18 U.S.C.A.

§ 1951, and further appropriate proceedings.

Having decided this case in the screening process

without oral argument, it is unnecessary to rule on the Govern-

ment’s motion to expedite.

REVERSED AND REMANDED.

TATE, Circuit Judge, concurring:

I agree with the majority that summary calendar

treatment is appropriate, since (a) the facts and legal arguments

are adequately presented in the briefs and record, and the de-

cisional process would not be significantly aided by oral argu-

ment and (b) under the current state of the law, the disposi-

tive issue has been authoritatively decided by decisions of eight

of the circuits. F.Rule App.Pro., Rule 34(a) (as amended and a-

dopted in 1979); Local Rule 18, United States Court of Appeals

for the Fifth Circuit Local Rules. I further agree completely

with the majority that the definition of ‘‘extortion” in the

Hobbs Act as obtaining property “under color of official right,”

18 U.S.C.A. §1951(b)(2), does not, by reason of the italicized

phrase, invalidate the statute as unconstitutionally vague.

Nevertheless, I feel impelled to state, for benefit of

en banc consideration or further review, that - were the slate

clean of prior decisions by the other circuits - it is clear to me

(as it was to the district judge) that the congressional intent to

punish racketeering by extortion, with penalties of up to

twenty years imprisonment, included that the extortion be by

A-10

coercion, economic or otherwise. 1 Ruff, Federal Prosecution

of Local Corruption: A Case Study in the Making of Law En-

forcement Policy, 65 Georgetown Law Journal 1171, 1179-86

(1977).

Here, a local school board member accepted a

bribe voluntarily given, without any element of duress, in the

justified expectation of receiving favorable public contracts -

conduct to be roundly condemned and subject to prosecution

under state law (not federal law, absent interstate travel). Much

as we may deplore such conduct and wish for its extirpation

and punishment, respect for our federal system demands that,

in the absence of congressional intent validly exercised, local

criminal conduct be punishable through prosecution by the

state rather than by the central government.

United States v. Kenny, 462 F.2d 1205, 1229

(3rd Cir. 1972), first held that conduct is punishable under the

1934 Hobbs Act - i.e., obtaining property ‘“‘by wrongful use of

actual or threatened force, violence, or fear, or under color of

official right” - without proof of an element of duress when

1. As stated for the court by Judge Wisdom, in an

opinion which accepted as undisputed this concept: “It is the

wrongful use of an otherwise valid power that converts dutiful

action into extortion. If the purpose and effect are to intimi-

date others, forcing them to pay, the action constitutes extor-

tion... The distinction from bribery is therefore the initiative

and purpose on the part of the official and the fear and lack of

voluntariness on the part of the victim.’ United States v. Hyde,

448 F.2d 815,833 (Sth Cir. 1971).

A-11

property is obtained by a public official ‘‘under color of official

right.’’ The dissenting opinion of Judge Aldisert in United

States v. Cerilli, 603 F.2d 415, 427 (3rd Cir. 1979), is to me

convincing that the authorities relied upon by Kenny were in-

apposite and that the congressional history discloses a clear

legislative intent not to include non-coercive conduct within the

intended meaning of the prohibited obtaining of property “‘un-

der color of official right.”’’Nevertheless, the United States

Supreme Court denied certiorari when review was sought on

this basis. Cerilli v. United States, 444 U.S. 1043, 100 S.Ct.

728, 62 L.Ed.2d 728 (1980).

Under the circumstances, therefore, and even con-

ceding that the denial of certiorari did not necessarily consti-

tute approval, I do not believe that oral argument would be of

significant aid in the decisional process but, rather, would un-

duly delay panel decision of what a preponderance of the court

might reasonably agree was a dispositive issue authoritatively

decided by eight other circuits. Despite my personal reserva-

tions as to the correctness of these decisions in their misreliance

upon inapposite judicial decisions rather than upon the congres-

sional intent, I therefore respectfully concur.

A12

APPENDIX B

UNITED STATES of America

v.

Henry E, WILLIAMS.

Crim. A. No. 7946.

United States District Court,

E.D. Louisiana.

June 20, 1979.

Defendant, who was convicted on all counts of a

three-count indictment charging violations of Hobbs Act, filed

a motion in arrest of judgment, challenging the constitutionality

of the Hobbs Act. The District Court, Dupiantier, J., held that:

(1) as applied to prosecution of defendant member of school

board for solicitation of a bribe without use of threat or duress,

Hobbs Act was unconstitutionally vague, and (2) even if ‘‘color

of official right” part of “extortion” definition in Hobbs Act

is constitutional, it does not cover solicitation by a public

official of a bribe or of a gratuity, absent element of threat or

duress.

Motion in arrest of judgment granted and, alter-

natively, judgment denying defendant’s motion for judgment of

acquittal set aside and such motion granted.

1. Criminal Law - - 13.1(1)

Test to be applied when a criminal statute is chal-

lenged for vagueness is whether terms of statute are sufficiently

precise to give person of ordinary intelligence a reasonable

opportunity to know what is prohibited so that he may act ac-

cordingly.

2. Extortion and Threats - - 2

A-13

As applied to prosecution of defendant member of

school board for solicitation of a bribe without use of threat or

duress, Hobbs Act was unconstitutionally vague. 18 U.S.C.A.

§ §1951, 1951(b)(2).

3. Extortion and Threats - - 7

" Even if “color of official right”’ part of ‘‘extortion”

definition in Hobbs Act is constitutional, it does not cover solic-

itation by a public official of a bribe or of a gratuity, absent

element of threat or duress. 18 U.S.C.A. § §1951, 1951(b)(2).

Richard T. Simmons, Jr., Asst. U.S. Atty., Chief,

Crim. Div., Geoffrey L. Beauchamp, Asst. U.S. Atty., New

Orleans, La., for plaintiff.

Virgil M. Wheeler, Jr., New Orleans, La., for

defendant.

ORDER AND REASONS

DUPLANTIER, District Judge.

This case involves an unusual and apparently first

attempt in this Circuit to apply the ‘‘color of official right” part

of the “‘extortion’”’ definition in the Hobbs Act to activities of a

local public official not involving duress or fear of harm.

Defendant, Henry Williams, was convicted by a

jury on all counts of a three count indictment charging viola-

tions of 18 U.S.C. §1951, known as the Anti-Racketeering

Act or the Hobbs Act, which, inter alia, prohibits ‘‘extortion”

A-14

affecting interstate commerce. !

(Subsequent to the publication of this opinion, we found for

the first time an exhaustive and scholarly treatment of many of

the issues in this case in a law review article published about

two years before the trial herein. Ruff, “Federal Prosecution of

Local Corruption: A Case Study in the Making of Law Enforce-

ment Policy.”’ 65 Geo. L.J. 1171 (1977).)

“Extortion’”’ is defined in subsection (b)(2) of the

act:

(2) The term “extortion” means the obtaining of

property from another, with his consent, induced

by wrongful use of actual or threatened force, vio-

lence, or fear, or under color of official right.

Each count of the indictment charges that defend-

ant, while a member of the Jefferson Parish, Louisiana, School

Board, an elective office, ‘‘did knowingly, willfully and unlaw-

fully attempt to and did . . . affect interstate commerce. . . by

means of extortion, in that the defendant, did unlawfully seek,

ask, solicit, and receive, under the color of official right. .

|. The act provides:

§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 com-

modity 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.

A-15

[either a cash sum (Counts One and Two) or airline tickets

(Count Three)], not due him or his office and to which neither

he nor his office was entitled. . .° The indictment is set forth

in full in an Appendix hereto.

There is no allegation in the indictment, nor is

there any evidence whatsoever, that the defendant used actual

or threatened force, violence or fear, not even fear of

economic loss, to induce the payments. The government’s posi-

tion is that “force, violence or fear”, or the threat thereof, is

not essential to the commission of the offense. As stated in its

Reply to Defendant’s Supplemental Motion In Arrest of Judg-

ment, the government contends that a local public official vio-

lates the statute (assuming requisite effect upon interstate com-

merce) if he ‘accepts money or things of value knowing that he

is not entitled to these gratuities for the lawful discharge of his

duties and, secondly, that the payment of those gratuities were

(sic) induced by his official position.”

On more than one occasion during pretrial confer-

ences, in response to the court’s inquiries the government con-

firmed that it intended to produce no evidence that defendant

represented to the ‘‘donor” that he was entitled by virtue of his

public office to the property he obtained, nor that there was

actual or threatened fear, express or implied, of economic loss.

The government’s contention, based upon the disjunctives in

the statutory definition, as applied here, is that the statute pro-

scribes ‘the obtaining of property from another, with his con-

sent under color of official right,” which includes accepting

A-16

gratuities and bribes. In defining extortion in its charge to the

jury, the court included the term “induced” before ‘under

color of official right”, on the basis that the defendant is

entitled to the strict interpretation of a criminal statute and

that “induced” could modify every phrase thereafter. The perti-

nent part of the charge is attached as an Appendix hereto. The

court also included another element not specified in the

statutory definition, i.e., that there must be an indication by

the defendant to the “donor’’ that defendant will favor the

“donor” in defendant’s official capacity. In effect, the court

acceded to the government’s contention that, in this case, ex-

tortion is synonymous with the solicitation of a bribe. 2

By a motion in arrest of judgment under Rule 34,

Fed.R.Cr.P., Williams for the first time raised the contention

that as applied to this case, the Hobbs Act is unconstitutionally

vague. 3 His challenge centers on the words “under color of

official right” in the statute’s definition of extortion, used in

2. The defendant requested no special charges nor

did he object to the court’s charges.

3. The court is of the opinion that the motion is

timely under Rule 34, since it raises the point that the indict-

ment does not charge an offense. If Rule 12(b)(2) requires the

filing of the motion prior to trial, the court grants under Rule

12(f) “relief from the waiver” otherwise resulting. To do other-

wise would result in an injustice to the defendant by penalizing

him for his attorney’s failure to raise the point earlier. To hold

that the objection is waived would be especially inappropriate

where, as here, the government concedes that it would not have

sought an amended indictment if the issue had been raised pre-

trial.

A-17

each count of the indictment. If the statute is impermissibly

vague, then the indictment which tracks the statutory language

fails to charge an offense and defendant’s conviction cannot

stand.

Stripped of verbiage which is either inapplicable or

of no consequence, and reconstructed to illustrate the issue

more clearly, the statute as charged in the indictment provides

that “Whoever obtains something of value from another, with

his consent, induced under color of official right” is guilty of an

offense against the United States. For the following reasons, the

court holds that the part of the statute at issue is unconstitution-

ally vague and that therefore the indictment fails to state an of-

fense. The motion in arrest is granted, the jury verdict is set

aside, and the indictment is dismissed.

Alternatively, we hold that even if its meaning is

sufficiently clear to be constitutional, the statute does not mean

what, at the government’s request, the court charged it to mean.

Therefore, although there was ample evidence to support the

jury verdict based upon the government’s theory and the court’s

charge as to the meaning of the statute, since the charge

instructed the jury that an essential element of the crime, co-

ercion, was not an element, and since there was no evidence of

coercion, the conviction cannot stand. Accordingly, as an alter-

native to the order granting the motion in arrest of judgment,

the court sua sponte sets aside its judgment denying defendant’s

motion for judgment of acquittal and grants the motion.

[1,2] The test to be applicd when a criminal

A-18

statute is challenged for vagueness is whether the terms of the

statute are sufficiently precise to “give the person of ordinary

intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.” Grayned v. City of

Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d

222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156,

162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). The court finds

that the statute, as employed in this indictment, fails to meet

this test.

In a recent decision, Dunn v. United States, — U.S.

—, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), the Supreme Court

reaffirmed its “long-established practice of resolving questions

concerning the ambit of a criminal statute in favor of lenity.”

This practice reflects not merely a convenient

maxim of statutory construction. Rather, it is rooted in funda-

mental principles of due process, which mandate that no

individual be forced to speculate, at peril of indictment,

whether his conduct is prohibited. Thus, to ensure that the

legislature speaks with special clarity when marking the bounda-

ries of criminal conduct, the courts must decline to impose

punishment for actions that are not ‘plainly and unmistakably’

proscribed. [citations omitted ] 99 S. Ct. at 2197.

There is apparently no specific discussion as to the

meaning of the phrase “under color of official right” in the

legislative history of the Hobbs Act. The language seems to have

been derived from Section 850 of the New York Penal Law of

1909:

A-19

Extortion is the obtaining of property from

another, or the obtaining of the property of a cor-

poration from an officer, agent or employee there-

of, with his consent, induced by a wrongful use of

force or fear, or under color of official right. 4

The New York law, it should be noted, is different

from the common law definition of extortion. Under the com-

mon law, extortion was defined as ‘‘the unlawful taking by any

officer, by color of his office, of any money or thing of value

that is not due to him, or the taking of more than is due, or the

taking of money before it is due.” :

There are at least two important distinctions be-

tween the common law definition of extortion and that in the

Hobbs Act: The common law refers to ‘‘unlawful taking”, the

Hobbs Act merely to “obtaining”; at common law the “‘taking”

must be “by any officer by color of his office”, under Hobbs

the “obtaining” must be ‘‘under color of official right.” 6

Whatever the elements of the crime of extortion

4. Penal Law of 1909, §850, as amended, Laws of

1917, ch, 518, reprinted in N.Y. Penal Law, appendix $850

(McKinney 1967).

5-U.S. v. Laudani, 134 F.2d 847, 851 (3rd Cir.

1943); see Words and Phrases, ‘Extortion’, 31 Am.Jur.2d “Ex-

tortion, Blackmail and Threats’, 35 C.J.S.’s“Extortion” and

cases cited therein. For a full discussion of the legislative history

of the Hobbs Act and the origins of the statutes definition of

extortion, see the dissenting opinion of Judge Gibbons in U.S.

v, Mazzei, 521 F.2d 639 at 646 (3rd Cir. 1975). See also, U.S. v.

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

©. Por an interesting analysis of questions of inter-

pretation of the Hobbs Act as applied in a number of recent

public official prosecutions, See 5 Loyola, U.LJ. 513 (L974).

A-20

may be under the common law or under state statutes which a-

dopted similar wording, the issue to be decided is whether the

words of this particular statute are sufficient to give a present

day public official fair warning as to what conduct may be sub-

ject to the sanctions of the criminal law. This statute cannot be

made constitutional by incorporation of some historic defini-

tion of extortion, for the statute itself defines the term, and the

indictment refers to only the stated part of the definition. In

any event, we have been referred to no historic definition of

“obtaining . . . induced . . . under color of official right’’; in-

deed, this terminology is apparently of recent origin, whatever

it may mean.

There are a number of questions as to what activi-

ties are meant to be covered by the statute. As a matter of syn-

tax, the statute is clearly disjunctive; the offense is committed

if one obtains property of another induced either by “wrongful

use of actual or threatened force, violence, or fear’’, or ‘‘under

color of official right”. 7 As already noted, the indictment

charges only the latter activity, not the former. However, the

structure of the statute also makes clear that the word ‘‘wrong-

ful” in the definition cannot be held to modify ‘under color of

official right.” Yet, some courts have read into the statute a re-

quirement that a defendant use his office ‘‘wrongfully.”’ 8 The

7. See U.S. v. Kenny, 462 F.2d 1205, 1229 (3rd

Cir, 1972).

8. U.S. v. Kenny, 462 F.2d 1205 (3rd Cir. 1972);

U.S. v. Braasch, 505 F.2d 139 (7th Cir. 1974).

A-21

indictment at issue here charges that the defendant did ‘“‘unlaw-

fully seek . . . and receive . . .’’. By describing activity as

‘unlawful’ an indictment cannot make it so, nor thus cure an

otherwise unconstitutional statute. The statute also leaves open

the question of whether the official must initiate the transac-

tion, that is, make a demand for the money or property, There

is a question whether the word “induced” in subsection (b)(2)

applies to a case brought solely under the “‘official right”

portion of the disjunctive statutory definition. As already

noted, the jury was charged that the word “induced” was part

of the applicable statute and that the government had to prove

that the defendant initiated the transaction. Just as an indict-

ment cannot cure defects in the statute, neither can the court’s

charge.

Apparently, it is only relatively recently that prose-

cutions under the Hobbs Act have been brought against public

officials solely under the “‘official right”’ portion of the statute,

that is, where there is no allegation of force, threats or duress. 9

9. The Court in U.S. v, Staszcuk, 502 F.2d 875,

877 (7th Cir. 1974) remarked, ‘‘Apparentiy this is one of the

first prosecutions under section 1951 to rely solely on subsec-

tion (b)(2)’s definition of extortion as ‘the obtaining of proper-

ty from another, with his consent, induced. . under color of

official right’.” Other cases, while discussing the meaning of

“under color of official right,” have affirmed convictions on the

alternative finding that ‘‘fear of economic loss’’ was present,

U.S. v. Sopher, 362 F.2d 523 (7th Cir, 1966); U.S. v. Trali, 503

F.2d 1295 (7th Cir. 1974); U.S, v. Crowley, 504 F.2d 992 (7th

Cir. 1974); U.S, v. Price, 507 F.2d 1349 (4th Cir. 1974); U.S. v,

Brown, 540 F.2d 304 (8th Cir. 1976); US. v, Adcock, 558 F.2d

397 (8th Cir. 197.); U.S. v. Reilly, 456 F.Supp. 211 (BE .D.Pa,

1978), affirmed, OOL F.2d 577 (3rd Cir, 1979).

A-22

In some reported cases, the issue has arisen as to

whether the statute covers bribery of a public official, where

the payor suggests the scheme and makes the payment freely

and voluntarily. Some courts which have considered this issue

have held that conduct constituting bribery is covered by the

statute, i.e., that the crimes are not mutually exclusive. 10

However, the holdings in other cases imply that there must be

some demand or threat made by the official in order to bring

the transaction under the coverage of the Hobbs Act. 11

Taken literally, the words “obtain property under

color of official right’? would seem to require that an official

represent to another person that he is entitled to something of

10. U.S. v. Braasch, 505 F.2d 139, 151 (7th Cir.

1974); U.S. v. Hathaway, 534 F.2d 386 (1st Cir. 1976); U.S. v.

Hall, 536 F.2d 313 (10th Cir. 1976); U.S. v. Harding, 563 F.2d

299 (6th Cir. 1977). |

Il. See eg., U.S. v. Wright, 588 F.2d 31 at 33 (2d

Cir. 1978); U.S. v. Addonizio, 451 F.2d 49 (3rd Cir. 1972). In

U.S. v. Hathaway, supra, the court commented that an instruc-

tion to the jury which implied that the initiative had to come

solely from the official may have been more favorable to the de-

fendant than required. However, the court was careful to de-

termine that the instructions precluded a conviction based upon

the passive receipt of money. U.S. v. Hyde, 448 F.2d 815 at

832-33 (Sth Cir. 1971) seems to imply that some element of

coercion or intimidation must be present for a prosecution

under the Hobbs Act, although the coercion may consist of a

threat to exert valid official power. On this general subject of

bribery vs. extortion see Stern, “‘Prosecutions of Local Political

Corruption Under the Hobbs Act: The Unnecessary Distinction

Between Bribery and Extortion”; 3% Seton Hall L. Rev. 1

(1971).

A-23

value, as of right, because of his official position, an interpre-

tation which was rejected in U.S. v. Braasch, 505 F.2d 139 at

151 (7th Cir. 1974). In Braasch, the court defined the offense

in these terms:

The use of office to obtain payments is the crux of

the statutory requirement of ‘‘under color of offi-

cial right”, and appellants’ wrongful use of official

power was obviously the basis of this extortion.

See United States v. Staszcuk, 502 F.2d 875 (7th

Cir. 1974), It matters not whether the public offi-

cial induces payments to perform his duties or not

to perform his duties, or even, as here, to perform

or not to perform acts unrelated to his duties

which can only be undertaken because of his offi-

cial position. So long as the motivation for the pay-

ment focuses on the recipient’s office, the conduct

falls within the ambit of 18 U.S.C. §1951. That

such conduct may also constitute “classic bribery”

is not a relevant consideration.

This description of the offense has been followed

and approved in other circuits 12 and is the definition urged by

the government in the instant case.

Such an interpretation of the statute is quite broad

in its coverage of activities by public officials. There is no re-

quirement of a threat by the official; thus voluntary payments,

commonly considered bribery, would be covered by the statute

if solicited by the official. 13 4 case where an official sells his

12. US. vy. Trotta, 525 F.2d 1096, 1100 (2d Cir.

1975): U.S. v. Hathaway, 534 F.2d 386 (Ist Cir, 1976); U.S. v.

Harding, 563 ¥.2d 299 (6th Cir. 1977): See also U.S. v. Mazzei,

521 F.2d 639 (3rd Cir. 1975).

Is. See footnote 6, supra

A-24

power to influence public action, commonly known as

influence peddling, would also be covered. 14 The crime could

also include the receiving of something of value by a public offi-

cial because of some official act he has performed or will per-

form, generally referred to as anillegal gratuity. Surely, in such

a case “‘the motivation for the payment focuses on the recip-

ient’s office.” In short, whatever meaning the common law

attached to extortion, some recent circuit court opinions have

given the term a much broader meaning which covers all sorts of

political corruption or unethical conduct. This broad interpre-

tation of the statute makes no distinction between corrupt or

unlawful activity and certain legitimate activity, such as a cam-

paign contribution.

Thus, if an incumbent candidate solicits campaign

funds from individuals who are in a position to directly or in-

directly benefit from his official decisions, this activity may be

covered by the broad interpretation of the Hobbs Act. The pay-

ors in such a case may not make the payments except for the

official’s position of power, and they more than likely hope to

gain some favorable treatment in exchange for their contribu-

tions. But do such solicitations consitiute extortion? Would the

following?

Ac public official solicits a loan from a bank. The

loan is made; part of the motivation is the bor-

rower’s official position and the hope that the

14. See U.S. v. Mazzei, 521 F.2d 639 (3rd Cir.

1975). Judge Gibbons’ dissent takes issue with such a broad in-

lerpretation,

A-25

bank can benefit therefrom in the form of other-

wise legitimate bank business.

A mayor solicits from an airline whose local ter-

minal operations are regulated by his city an in-

vitation to participate at no cost to him in a pro-

motional inaugural foreign flight.

Through his ‘‘booking agent’’, a Congressman, member of a

committee which considers bills relating to an industry, solicits

a speech-making appearance (with honorarium) before the in-

dustry convention.

All of the foregoing would seem to fit the defini-

tion suggested by the government.

Congress has adopted a comprehensive scheme for

prosecuting federal officials guilty of various types of corrupt

activities. 18 U.S.C. §201(c) dealt with accepting bribes and §

201(g) with accepting illegal gratuities. 15 Extortion by federal

officials is dealt with in 18 U.S.C. § 872:

§ 872. Extortion by officers or employees of the

United States

15. Section 201(c):

(c) Whoever, being a public official or person selec-

ted to be a public official, directly or indirectly, corruptly asks,

demands, exacts, solicits, seeks, accepts, receives, or agrees to

receive anything of value for himself or for any other person or

entity, in return for:

(1) being influenced in his performance of any of-

ficial act; or

(2) being influenced to commit or aid in commit-

ting, or to collude in, or allow, any fraud, or make

opportunity for the commission of any fraud, on

—

A-26

Whoever, being an officer, or employee of the

United States or any department or agency thereof, or repre-

senting himself to be or assuming to act as such, under color or

pretense of office or employment commits or attempts an act

of office or employment commits or attempts an act of extor-

tion, shall be fined not more than $5,000 or imprisoned not

more than three years, or both; but if the amount so extorted

or demanded does not exceed $100, he shall be fined not more

than $500 or imprisoned not more than one year, or both.

It is interesting and significant that in all three

statutes the U.S. Congress establishes far less severe penalties for

the United States; or

(3) being induced to do or omit to do any act in

violation of his official duty;

Shall be fined not more than $20,000 or three times the mone-

tary equivalent of the thing of value, whichever is greater, or

imprisoned for not more than fifteen years, or both, and may

be disqualified from holding any office of honor, trust, or profit

under the United States Section 201(g):

(g) Whoever, being a public official, former public official, or

person selected to be a public official, otherwise than as pro-

vided by law for the proper discharge of official duty, directly

or indirectly asks, demands, exacts, solicits, seeks, accepts, re-

ceives, or agrees to receive anything of value for himself for or

because of any official act performed or to be performed by

him ;

Shall be fined not more than $10,000 or impris-

oned for not more than two years, or both. The statutory lan-

guage of Section 201 is not free from ambiguity. For a discus-

sion of the problems of distinguishing among bribery, illegal

gratuities and lawful activities see U.S. v. Brewster, 165 U.S.

App.D.C. 1,506 F.2d 62 (D.C. Cir. 1975).

A-27

federal officials than the Hobbs Act does for even a minor local

official engaged in the same conduct, if the Hobbs Act means

what the government contends it does. While the extortion pro-

vision in the Hobbs Act applies to federal as well as local offi-

cials, we have found no reported case involving the prosecution

thereunder of a federal official.

The federal employee extortion statute does not

define the term extortion. Apparently, prosecutions are rare, es-

pecially in recent years. There are few reported cases interpret-

ing the statute; two of which have come to our attention apply

inconsistent definitions of extortion. In 1947, the Seventh Cir-

cuit interpreted 18 U.S.C. § 171, which for all relevant pur-

poses is the identical predecessor of § 872. 16 The court held

that “‘extortion” in that statute ‘‘is used in its common ordinary

sense as distinguished from the sense in which it was known at

common law.” The court held that the statute

. .. does more than substitute color of office for fear, threats,

16. U.S. ». Sutter, 160 F.2d 754 (7th Cir. 1947). 18 U.S.C. §

171 provided:

i “Every officer, clerk, agent, or employee of the

United States, and every person representing himself to be or

assuming to act as such officer, clerk, agent, or employee, who,

under color of his office, clerkship, agency, or employment, or

under color of his pretended or assumed office, clerkship, agen-

cy, or employment, is guilty of extortion, and every person who

shall attempt any act which if performed would make him guil-

ty of extortion, shail be fined not more than $500 or impris-

oned not more than one year, or both.” (R.S.Sec. 5481; June

28, 1906, c. 3574, 34 Stat. 546; Mar. 4, 1909, c. 321, Sec. 85,

35 Stat. 1104).

A-28

or pressure. The use of official position must be coupled with

extortion. Under this statute, a Federal employee is guilty only

if he uses his office to place another under compulsion of fear,

force, or the undue exercise of power, so that such person parts

with something of value unwillingly and involuntarily. 17

In an earlier case, the Second Circuit held that Sec-

tion 171 should be interpreted to adopt the common law defini-

tion of extortion:

Extortion is the unlawful taking by any officer un-

der color of his office of any money or thing of

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

before it is due. 18

This common law definition, it is submitted, by

use of the words ‘“‘unlawful”’ and “‘taking’”’ implies the threat of

economic loss by virtue of the imposition or withholding of

official action and thus distinguishes the more serious crime of

extortion from bribery.

In any event, the extortion statute as to federal

officials has never been interpreted as broadly as the interpreta-

tion of the Hobbs Act as to local officials suggested by the

government. It is noteworthy that Congress dealt with federal

officials as to bribery, illegal gratuities and extortion in separate

sections of Title 18. If Congress meant to include all such activi-

17. 160 F.2d at 756.

18. Martin v. U.S., 278 F. 913 at 917 (2nd Cir. 1922).

A-29

ty by local officials under the term ‘‘extortion” in the Hobbs

Act, the statute could have so specified. Bribes and illegal gratu-

ities can affect interstate commerce as much as extorted pay-

ments can. If Congress meant by the last phrase of the Hobbs

Act definition ‘‘under color of official right” to include the so-

licitation of a bribe it would have inserted ‘‘or by solicitation of

a bribe” in the statute in lieu of ‘‘or under color of official

right”.

Given the ambiguities of the common law and the

absence of clear Congressional intent, the courts have been

forced to speculate as to the exact parameters of the offense de-

fined by the Hobbs Act. As a result, public officials are not

given fair warning as to whether their activities are criminal or

not.

One of the primary and most serious problems

with vague statutes is that they encourage arbitrary arrests and

convictions. Papachristou v. City of Jacksonville, 405 U.S. 156,

162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Such laws

place undue discretion in the hand of the police and the prose-

cutor.

The court is convinced that the Hobbs Act, when

employed to prosecute the ‘‘obtaining of property from anoth-

er, with his consent, (induced). . . under color of official right’’

presents just such a problem. Under the words of this statute,

whether one is prosecution and convicted or not may ultimately

depend not upon one’s conduct, but upon one’s popularity,

political affiliation, influence, and even personality. Potential

A-30

abuse and erratic verdicts are inherent in the ambiguities of this

statute. Examples have already been given of public official con-

duct apparently covered by the words of the statute, but never

prosecuted.

We recognize that decisions in some other circuits

interpret the pertinent part of the Hobbs Act extortion defini-

tion as does the government. Under these decisions, the court’s

charge would be proper, the statute would be held Constitu-

tional, and the conviction would stand. 19 However, we have

found no such decision in this Circuit or by the U.S. Supreme

Court, nor has the government. Other cases lend support for our

conclusion as to the meaning of the definition, if it is constitu-

tional. 29 In the one Fifth Circuit decision which deals with is-

sues similar to those here, Judge Wisdom distinguishes between

extortion and bribery, extortion involving an element not nec-

essary to bribery, i.e., duress or threat of harm:

It is the wrongful use of an otherwise valid

power that converts dutiful action into extortion.

If the purpose and effect are to intimidate others,

forcing them to pay, the action constitutes ex-

19. U.S. v. Kenny, 462 F.2d 1205 (3rd Cir. 1972); U.S. v.

Braasch, 505 F.2d 139 (7th Cir. 1974); U.S. v. Kuta, 518 F.2d

947 (7th Cir. 1975); U.S. v. Mazzei, 521 F.2d 639 (3rd Cir.

1975); U.S. v. Trotta, 525 F.2d 1096 (2nd Cir. 1975); U.S. v.

Hall, 536 F.2d 313 (10th Cir. 1976); U.S. v. Harding, 563 F.2d

299 (6th Cir. 1977).

20. U.S. v. Hyde, 448 F.2d 815 (5th Cir. 1971); U.S. v. Addoni-

zio, 451 F.2d 49 (3rd Cir, 1972); ULS. v. Hathaway, 534 V.2d

316 (Ist Cir. 1976).

A-31

tortion. Put another way, it is the right to impartial!

determination of the issue on the merits (i.e.

whether to enforce the law or whether to picket

or strike) that the victim is deprived of when these

actions are taken for the purpose of coercing him

into paying. The distinction from bribery is there-

fore the initiative and purpose on the part of the

official and the fear and lack of voluntariness on

the part of the victim. 21

[3] Applying the distinction in Hyde between ex-

tortion and bribery we hold that if the pertinent part of the

definition of extortion in the Hobbs Act is constitutional, it

does not cover solicitation by a public official of a bribe or of a

gratuity, absent the element of threat or duress.

Nothing herein should be construed to condone

the activities of defendant or the other participants. Their

actions were highly unethical and reprehensible. That the evi-

dence may support state bribery charges against them is not the

issue before us. That the resolution of the issues we must decide

may result in these activities going unpunished is unfortunate

but irrelevant. 22 However high their motives may be, govern-

21. U.S. v. Hyde, 448 F.2d 815 at 833 (5th Cir. 1971).

22. The words of Judge Rubin in a case decided after this order

was issued but before publication of this opinion, U.S. v. McIn-

nis, 601 F.2d 1319 at 1327 (Sth Cir. 1979), are particularly per-

tinent:

There is still truth in ancient wisdom and law in

maxims older than, but respected by, the Constitu-

A-32

ment prosecutors should not be permitted, in order to suppress

a perceived modern evil, to give to an ancient statute a new in-

terpretation never intended by the Congress. 23

APPENDIX

INDICTMENT

The Grand Jury charges that:

AT ALL TIMES HEREIN:

1. HENRY E. WILLIAMS was a member of the

Jefferson Parish School Board, an elective office in Jefferson

Parish, Louisiana.

2. Louisiana Computing Corporation was a corpor-

ation, incorporated under the laws of the State of Louisiana,

under contract to the Jefferson Parish School Board to provide

computer services. On July 7, 1976, HENRY E. WILLIAMS,

seconded a motion for renewal of the Jefferson Parish School

Board contract with Louisiana Computing Corporation.

COUNT 1

On or about April 1, 1976, in the Eastern District

of Louisiana, HENRY E. WILLIAMS, while serving as a member

tion. Criminal statutes are to be strictly construed.

Penal statutes must not be stretched to enable the

government to prosecute a defendant merely be-

cause what he has done is vile, or, as the govern-

ment here suggests, a violation of state law that is

likely to go unpunished by state authorities (cita-

tions omitted).

“3. See 3 Seton Hall L.Rev. 1 urging just such a course of ac-

tion.

A-33

of the Jefferson Parish School Board, an elective office in the

State of Louisiana, did knowingly, willfully and unlawfully at-

tempt to and did obstruct, delay and affect interstate commerce

as that term is defined in United States Code, Section 1951

(b)(3), by means of extortion, in that the defendant did unlaw-

fully seek, ask, solicit and receive, under the color of official

right, the sum of $4,000 cash from a contractor doing business

with the Jefferson Parish School Board, which money was not

due him or his office and to which neither he nor his office was

entitled, from a contractor with the Jefferson Parish School

Board; all in violation of Title 18, United States Code, Section

1°31.

COUNT 2

From on or about June, 1976, until on or about

October, 1976, in the Eastern District of Louisiana, HENRY E.

WILLIAMS, while serving as a member of the Jefferson Parish

School Board, an elective office in the State of Louisiana, did

knowingly, willfully and unlawfully attempt to and did delay

and affect interstate commerce as that term is defined in Title

18, United States Code, Section 1951(b)(3), by means of extor-

tion, in that defendant did unlawfully seek, ask, solicit and re-

ceive from a former official of Louisiana Computing Corpora-

tion, under color of official right, the sum of approximately

$13,000 cash, generated by the payments of fictitious bonuses

to employees of Louisiana Computing Corporation, which

money was not due Williams or his office, and to which neither

he nor his office was entitled; all in violation of Title 18, United

States Code, Section 1951.

A-34

COUNT 3

From on or about June 19, 1975, until on or about

October 31, 1976, in the Eastern District of Louisiana, HENRY

E. WILLIAMS, while serving as a member of the Jefferson

Parish School Board, an elective office in the State of Louisiana,

did knowingly, willfully and unlawfully attempt to and did de-

lay and affect interstate commerce as that term is defined in

Title 18, United States Code, Section 1951 (b)(3), by means of

extortion, in that defendant did unlawfully seek, ask,solicit and

receive from Louisiana Computing Corporation, under color of

official right, airline tickets valued at approximately $1,209.46

as follow:

Date of Approximate

Ticket Date of

(1) 6/19/75 Las Vegas Mr, Henry E. $338.73 6/26/75

Williams 6/30/75(return)

6/19/75 Las Vegas Mrs, Henry E. $338.73 6/26/75

Williams 6/30/78" (return)

*(Memo by District Court: The return date of 6/30/78 is obviously a typographical

error, the correct date is 6/30/75)

(2) 6/23/76 Las Vegas Mr. Henry E. $264.00 6/24/76

Williams 6/26/75(return)

(3)10/26/76 Las Vegas Mr, Henry E. $264.00 10/28/76

Williams 10/31/76(return)

A-35

paid for by Louisiana Computing Corporation which tickets

were not due Williams or his office, and to which neither he

nor his office was entitled; all in violation of Title 18, United

States Code, Section 1951.

CHARGE TO JURY

What does the law mean when it prohibits and

makes it criminal for a public official to obtain something of

value induced by color of official right? This is, of course,

unusual language, language which we don’t use in our everyday

lives, and therefore requires special explanation.

To induce an act means to influence or persuade it

to be done, to bring something about, to cause it to happen. By

color of official right means as a result of one’s official position.

But more is needed before conduct is criminal, than merely the

act of a public official obtaining something by persuading some-

one to give it to him because he is a public official; otherwise,

every time an incumbent public official runs for reelection and

solicits campaign contributions he would be guilty of a crime

under this statute. What is the additional element? There must

be proof that the defendant wrongfully used his official power

to obtain something to which he was not entitled. The govern-

ment must prove that the public official persuaded someone to

give him something of value by indicating, either expressly or

impliediy, either at that time or previously, that as a result, the

public official would favor him in his official capacity. It is not

enough for the giver alone to think that he’ll get some favor

from the public official; the public official must have indicated

A-36

that to him as part of the inducement for the act.

As applied to this case, the defendant would be

guilty if you find as to the acts covered by any count of the in-

dictment that the government has proved beyond a reasonable

doubt that Henry Williams did all of the following:

persuaded or influenced someone to pay him

money (as to count one or two) or furnished him

airline tickets (as to count three)

because he was a public official at the time

and indicated to the person whom he persuaded or

influenced either by Williams’ words or actions,

either at the time of the payment of money or

furnishing of airline tickets or previous thereto,

that as a result of the giving of money or furnishing

of airline tickets, he, Williams, in his official capa-

city as a school board member would favor that

person.

For defendant’t activities involved in this case to

be covered under this statute, you must be convinced beyond

reasonable doubt that Mr. Williams obtained money or airline

tickets and that the act of giving the money or furnishing the

airline tickets was brought about or caused by Henry Williams

leading Brandin (with respect to Count One) or Louisiana Com-

puter Corporation (with respect to Counts 2 or 3) to Believe

that if they gave him money or airline tickets, Williams in his

capacity as a school board member would favor the giver.

To prove the crime charged in this case, the govern-

A-37

ment need not prove that the payments to the defendant were

the result of force or coercion on his part or from fear on the

part of the giver.

It is not necessary that the defendant as a School

Board member have the power and authority to perform the

acts he claimed, but whether it is reasonable, looking at all the

surrounding circumstances, for the subject to believe that the

defendant had that authority or power.

A-38

Gilbert F. Ganucheau

Clerk

October 27, 1980

TO ALL PARTIES LISTED BELOW:

No. 79-2584 U.S.A. -vs- HENRY E. WILLIAMS

(CR-79-46 “H”)

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition ( ) for rehearing, and

the Court having been polled at the request of one

of the members of the Court and a majority of the

Circuit Judges who are in regular active service not

having voted in favor of it, (Rule 35, Federal Rules

of Appellate Procedure; Local Fifth Circuit Rule

16) the petition ( ) for rehearing en banc has also

been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

BY

Deputy Clerk

cc: Mr. Richard T. Simmons, Jr.,

Mr. Virgil M. Wheeler, Jr.,

Mr. Herbert Shafer