Opposition — Leppo v. United States

a ne rt, Uso.

“fILED

No. 81-19 OCT § 198)

Inu the Supreme Court of the nit

OCTOBER TERM, 1980

\.. STEVAS,

LETEK

CARROLL LEPPO, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support the

jury’s finding that the requisite impact on interstate com-

merce under the Hobbs Act had been established.

2. Whether the prosecutor impermissibly commented on

petitioner's right to remain silent.

3. Whether incriminating statements voluntarily made

by petitioner during a polygraph examination were admiss-

ible at trial.

(I)

TABLE OF CONTENTS

Page

CRONE DUET ccccccdccdvcccccscveveccceesoness l

DT Vcc accuses iadee bes pabsdbacskrerse dbus l

Te LE re REE ee Ee l

ATQOMIGT ccccccccccccccccccctenecceccvevceceess 2

i cc ei eeeaebkbneds addpeabbaewbeedesseve 6

TABLE OF AUTHORITIES

Cases:

Anderson v. Charles, 447 U.S. 404 .......00 005s 5

Doyle Vv. Gil, 426 U.S. GIO wccccccccccccccces 5

Griffin v. California, 380 U.S. 609 ..... cee eens 4

Lockett v. Ohio, 438 U.S. $86 ...cccccccccccces 4

Stirone v. United States, 361 U.S. 212 ........ 2,3

United States v. Blanton, 531 F. 2d 442,

GE UE ED Cs DEE eo vcccrccccocceceses 5

United States v. Calder, 641 F. 2d 76,

cert. denied, No, 80-6291 (Apr. 20,

Rr er errr Pry Ty Perrin 2

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

CO, eS Ge Sis HED dh cbpccedtocceveces 2

United States v. Craig, 573 F. 2d 513,

Gras CE, Ge Es GE aecococcesvecesvees 3

United States v. Culbert, 435 U.S. 371) ......45. 2

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

cert. denied, No. 80-479 (Nov. 1980) ...... 2, 3.4

IV

Page

Cases— Continued:

United States v. Isaacs, 493 F. 2d 124,

COFE GR ET Ws PTO veccesescectccncese 5

United States v. Littlepage, 450 F. 2d

i Ustad aa eaeue Washceketebddeseebecaces 5

United States v. Staszcuk, 502 F. 2d 875,

rev'd in part, 517 F. 2d 53, cert. denied,

tM «os vena cbvednes eed eeddecesa 3,4

United States v. Summers, 598 F. 2d

PCs Ee baad eke adeeb ke esdenaeesesewas ae

Constitution and statutes:

United States Constitution:

PE 4 cco cee saneeeeeiceee sas 4

Hobbs Act:

ee SE OS a we cau Rae ketet siveesewe 1,4

18 U.S.C. 1951(a) .ncccccccccccvcccvvcccvess 2

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 81-19

CARROLL LEPPO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet. App.

la-2a) and the opinion of the district court (Pet. App.

4a-19a) are not reported.

JURISDICTION

The judgment of the court of appeals (Pet. App. la-2a)

was entered on March 26, 1981, and a petition for rehearing

was denied on May 5, 1981. The petition for a writ of

certiorari was filed on July 2, 1981. the jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Middle District of Pennsylvania, petitioner was

convicted of extortion, in violation of 18 U.S.C. 1951. He

was sentenced to imprisonment for one year, all but three

2.

months of which was suspended, and he was placed on

probation for two years. The court of appeals affirmed.

Petitioner was a County Commissioner for York County,

Pennsylvania. In February 1976 he extorted $300 from an

architectural firm to help pay for a Florida vacation. The

firm had recently been awarded a $388,391 contract with

the county to design a new prison. The $300 payment to

petitioner was initially made from a personal account that

the firm's business agent, Charles Warner, used to make

political campaign contributions on behalf of the firm (II

Tr. 24-29; see W. Tr. 9-12, 21)'!. Warner was reimbursed by

the partners of the firm with partnership profits. The archi-

tectural firm engaged in business in states other than Pen-

nsyivania and purchased goods in interstate commerce (W.

Tr. 4, 7-8).

ARGUMENT

1. The Hobbs Act prohibits extortion that interferes

with interstate commerce “in any way or degree.” 18 U.S.C.

1951(a). Stirone v. United States, 361 U.S. 212,215 (1960).

Petitioner contends (Pet. 11-18) that the proof of interfer-

ence was insufficient here because his extortionate payment

was derived from the after-tax profits of the architectural

firm, which he alleges would not have been used for the

business. His claim is without merit.

Congress intended the Hobbs Act to reach as broadly as

the Commerce Clause permits. United States v. Culbert,

435 U.S. 371, 373 (1978); Stirone v. United States, supra.

Thus, a minimal depletion of the resources of a business

engaged in interstate commerce satisfies this jurisdictional

element. E.g., United States v. Calder, 641 F. 2d 76,78 (2d

Cir.), cert. denied, No. 80-6291 (Apr. 20, 1981); United

States v. French, 628 F. 2d 1069, 1075, 1078 (8th Cir.), cert.

“W. Tr." refers to the transcript volume entitled “Excerpt Testimony

of Charles S. Warner.”

3

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

603 F. 2d 415, 424 (3d Cir. 1979), cert. denied, 444 U.S.

1043 (1980); United States v. Summers, 598 F. 2d 450, 454

(Sth Cir. 1979); United States v. Craig, 573 F. 2d 513, 518

(7th Cir.), cert. denied, 439 U.S. 820 (1978). Whether the

payment is made from pre-tax or after-tax dollars is a

matter of accounting, irrelevant to the question in this case.

In either case the firm's assets are diminished by the amount

of the payment. Thus, whether the payment results in less

personal income for the partners or less reinvestment

income for the firm does not affect application of the Hobbs

Act. Payment of the money could have reduced the firm’s

ability to make interstate purchases; the fortuitous circum-

stance that the money was assertedly paid from a fund

maintained by after-tax dollars does not modify that poten-

tial impact. See United States v. Staszcuk, 517 F. 2d 53

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

Furthermore, the target of petitioner's extortionate

demand was the firm, and not Warner individually, or the

individual partners of the firm. Refusal to succumb to

petitioner’s demand could have adversely affected the firm's

future business with the county. Such a reduction in

government contracts would again, in turn, decrease the

firm’s need for interstate products. See Stirone v. United

States, supra; United States v. Summers, supra, 598 F. 2d

at 454. Finally, the extortion had the effect of corrupting a

business that conducted its affairs in several states. United

States v. French, supra, 628 at 1078.2 The evidence was

more than sufficient to support the jury's verdict in this

case.

?Petitioner’s reliance (Pet. 14-16) on French is misplaced. In French

the court held that (628 F. 2d at 1078) if the extortion involves an

interstate enterprise, like the architectural firm in the instant case, then

interstate commerce is directly affected, “whether this effect is charac-

terized as extraction of a wrongful tribute by a local official from an

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

4

2. Petitioner contends (Pet. 19-23) that in closing argu-

ment the prosecutor impermissibly commented on his

assertion of his Fifth Amendment right to remain silent. See

Griffin v. California, 380 U.S. 609 (1965). When viewed in

context, however, it is apparent that the prosecutor’s

remark was not an impermissible comment. Cf. Lockett v.

Ohio, 438 U.S. 586, 594-595 (1978). During a polygraph

examination conducted pfior to trial, petitioner answered

questions concerning an alleged extortionate payment of

$500 received from the architectural firm in September

1975.3 But when asked about the February payment of

$300, he asserted his Fifth Amendment privilege. In his

opening statement at trial, defense counsel inaccurately

summarized petitioner’s admissions during the polygraph

examination, indicating that petitioner had acknowledged

receipt of the February payment, but thought it was only

improper and not illegal (1 Tr. 27-28). When the evidence

showed otherwise (see iI Tr. 170, 174, 178), the prosecutor,

in his closing argument, sought to correct any misimpres-

sion that the jury may have received.4 The prosecutor

explained that petitioner had not admitted the February

payment during his conversation with the FBI agent;

instead, petitioner (1V Tr. 80):

enterprise whose activities reach across state lines.” Actual proof of

diminished interstate activity was deemed unnecessary. In the long

passage quoted by petitioner (Pet. 14-16; 628 F. 2d at 1076-1077), the

court considered a question that it ultimately chose not to resolve, and

thus the passage was dictum. Similarly, petitioner's reliance on the

language in United States v. Staszcuk, 502 F. 2d 875,879 (1974), rev'd

in pertinent part, 517 F. 2d 53(7th Cir.) (en banc), cert. denied, 423 U.S.

837 (1975), is misplaced. Thus, neither French nor Staszcuk supports a

contrary result in this case or requires review of the issue by this Court.

3Petitioner was acquitted on a count charging this payment as a

violation of the Hobbs Act, 18 U.S.C. 1951.

‘Thus, contrary to petitioner's assertion (Pet. 21-23), the prosecutor's

comment was not based on any fact outside the record.

5

* * * was talking about campaign money. He was talk-

ing about September. He never even said anything to

[the agent] about February and his vacation.

The prosecutor’s comment did not equate petitioner’s

silence with guilt, but rather clarified the extent of petition-

er’s admissions to the FBI agent. It was an entirely appro-

priate response to defense counsel’s erroneous opening

statement. See also United States v. Blanton, 531 F. 2d

442, 444 (10th Cir. 1975), cert. denied, 425 U.S. 935 (1976);

United States v. Isaacs, 493 F. 2d 1124, 1164-1165 (7th

Cir.), cert. denied, 417 U.S. 976 (1974); United States v.

Littlepage, 450 F. 2d 944, 945 (9th Cir. 1971).°

3. Petitioner argues (Pet. 23-24) that his voluntary

statements concerning the September payment should not

have been admitted at trial because the jury probably

inferred from his willingness to speak about the September

incident that he (Pet. 24) “failed to discuss the February

incident out of a consciousness of guilt.” There is no

authority for the proposition that the government may only

use a confession if it relates to all of the offenses charged. No

evidence was introduced at trial that petitioner had refused

to answer any questions concerning the February payment.

Compare Anderson v. Charles, 447 U.S. 404 (1980), with

Doyle v. Ohio, 426 U.S. 610 (1976). Consequently, the jury

had no reason to assume, and no basis for inferring, that

petitioner’s failure to volunteer an explanation for the Feb-

ruary incident was due to a consciousness of guilt.

Petitioner also argues (Pet. 23) that his admissions

should not have been introduced because they were made

during a polygraph examination, and therefore “the defense

was precluded from fully cross examining the FBI agent

5In addition, the court instructed the jury that no adverse inferences

should be drawn from petitioner's failure to testify (J. Tr. 10). “J. Tr.”

refers to the transcript of the jury charge.

6

and from attempting to put the alleged statements in the

proper context.” In fact, however, petitioner was fully able

to question the agent about voluntariness, the length of the

interrogation, any use of force, and whether petitioner's

responses had been accurately recorded, without revealing

that the confession was contemporaneously evaluated by a

polygraph.’ In any event, since these statements pertained

solely to the count on which petitioner was acquitted, their

admission could not have tainted his conviction for the

February extortion.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

OcTOBER 1981

*The results of the polygraph examination were not introduced at

trial,

’The district court conducted a lengthy pretrial voluntariness hearing

to determine the admissibility of the statements.

DOJ-1981-10