# Record and brief — Thordarson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1055

## Text

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81-643 FILED

Bo oct 8 mH

ALEXA?
In THE pete STEVAS.

SUPREME COURT OF THE UNITED STATES
October Term, 1981

STEN THORDARSON, MARTIN FRY,
CRAIG DUNBAR, MARTIN SALGADO,
and CHARLES WISE,
Petitioners,
vs.
UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI
OF APPEALS

d
!
:

STILZ, BOYD, LEVINE &
HANDZLIK

JAN LAWRENCE HANDZLIK
Suite 1200
2049 Century Park East
Los Angeles, CA 90067
(213) 277-6844

Attorneys for Petitioners

QUESTIONS PRESENTED

In the absence of explicit statutory
language and a clear expression of Con-
gressional intent to expand Federal
criminal jurisdiction and to encroach upon
the criminal jurisdiction of the States,
do acts done in furtherance of legitimate
labor goals violate Federal criminal law?

In light of the comprehensive statu-
tory and administrative scheme enacted by
Congress to protect the rights of unions
and union members pursuing legitimate labor
goals, are acts done to secure bona fide
collective-bargaining objectives cognizable
under Federal criminal laws as well as

Federal labor laws?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISiDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A.

PROCEEDINGS BELOW

STATEMENT OF FACTS

ARGUMENT

A.

THE RATIONALE ANIMATING UNITED
STATES v. ENMONS, 410 U.S. 396
(1973) PRECLUDES APPLICATION
OF THE FEDERAL CRIMINAL LAWS
CHARGED IN THIS CASE TO ACTS
DONE IN FURTHERANCE OF A LEGI-
TIMATE LABOR DISPUTE

THE INDICTMENT IMPROPERLY IN-
TRUDES INTO A FEDERALLY
PROTECTED AREA

BEFORE FEDERAL CRIMINAL STAT-
UTES CAN BE APPLIED TO ACTS
OCCURRING IN CONNECTION WITH
A LEGITIMATE LABOR DISPUTE,

A CLEAR EXPRESSION OF CONGRES-
SIONAL INTENT IS NECESSARY

ii

ii

iv

1l

ll

16

25

1. No Specific Legislative
Intent Exists Supporting
the Application of the
Statutes Charged in
this Context.

2. Reference to Related
Statutory Schemes Rein-
forces the Conclusion
that Congress Did Not In-
tend These Statutes To Be
Used in the Context of
Legitimate Labor Disputes
and That the Prosecution
of Such Acts Has Been Left
to the States.

CONCLUSION

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

APPENDIX E:

Opinion of the Court
of Appeals

Opinion of the United
States District Court

Order Denying Rehearing

Statutory Provisions
Involved

Indictment

iii

25

38
45

TABLE OF AUTHORITIES

Page

Cases

Beacon Moving and Storage,
Inc. vw. Local 814, etc.
362 #.Supp. 442
(S.D.N.Y. 1972) 20

Bell v. United States
349 U.S. 81 (1955) 25

Erlenbaugh v. United States
409 U.S. 239 (1972) 31, 38, 39

Langel v. United States
451 F.2d 957
(8th Cir. 1971) 23

NLRB v. Georgetown Dress
Corporation
537 F.2d 1239
(4th Cir. 1976) 24

NLRB v. Union Nacional de
Trabajadores
540 F.2d 1
(lst Cir. 1976),
cert. denied,
429 U.S. 1039 (1977) 24

Rewis v. United States
401 U.S. 808 (1971) 31

Scott v. Moore

640 F.2d 708
(Sth Cir. 1981) 21, 30

United States v. Bailes
120 F.Supp. 614
(S.D.W.Va. 1954)

United States v. Caldes
457 F.2d 74
(9th Cir. 1972)

United States v. DeLaurentis
491 F.2d 208
(2nd Cir. 1974)

United States v. Enmons
410 U.S. 396 (1973)

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

United States v. Love
482 F.2d 213 (5th Cir.),
cert. denied,
414 U.S. 1026 (1973)

United States v. Marubeni
America Corp.
611 F.2d 763
(9th Cir. 1980)

United States v. Parker
586 F.2d 422
(5th Cir. 1978),
cert. denied,
441 U.S. 962 (1979)

-Vv-

30,

18,
27,

23

31

23

United States v. Polizzi
500 F.2d 856
(9th Cir. 1974),
cert. denied,
419 U.S. 670 (1975)

United States v. Quinn
514 F.2d 1250
(5th Cir. 1975),
cert. denied,
424 U.S. 955 (1976)

United States v.
Thordarson, et al.
646 F.2d 1323
(9th Cir. 1981)

United States v.
Thordarson, et al.
487 F.Supp. 991
(C.D. Cal. 1980)

United States v. Turkette

U.S. ,
TOl Ss.ct. 2524,
L.Ed. (1981)
Statutes

18 U.S.C. §844(i)

18 U.S.C. §1951

18 U.S.C. §1952

18 U.S.C. §1961(1)-(5)

-vi-

20,

1, 20-

31, 36,

29-

3, 6,

25,

23,
37,

31,

16,
3,

3, 6,

31

30

40

21
40

ll
16

18
18
18
18
18
18
18
18
28
29
29
29
29
29
29
29
29
29

U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.

§1962
§1962(c)
§1962(d)
§1963
§1963(b)
§1964
§1964 (a) (b)
§3731
§1254(1)
§151
§152(9)
§153
§157
§158
§159
§401
§501
§501 (c)

-vii-

3, 5,

4,

4,
19,

6, 7,

Page

Acts

Anti-Racketeering Act of

1934, §2(a) 41, 42
National Labor Relations Act
of 1947 17-19
Organized Crime Control Act
of 1970, Public Law 91-452 40
Rules
United States Supreme Court Rules,
Rule 21.1(f) 3
Miscellaneous

Proposed legislation, United States
Senate:

$.613, (97th Congress,

lst Session) 34, 35
S.613(a) (1) (2) 34
S.613(c) (2) 34

S$.1722(b), (96th Congress,
lst Session) 33, 34

-viii-

OPINIONS BELOW

The May 20, 1981 Opinion of the
United States Court of Appeals for the
Ninth Circuit is contained in Appendix "A".

It is published as United States v.

Thordarson, et al., 646 F.2d 1323 (9th Cir.
1981).

The March 17, 1980 Opinion of the
United States District Court for the Cen-
tral District of California is contained
in Appendix "B". It is published as

United States v. Thordarson, et al., 487

F.Supp. 991 (C.D. Cal. 1980).

JURISDICTION

The judgment of the Court of Appeals
for the Ninth Circuit was entered on May
20, 1981. An Order denying a petition for
rehearing and rejecting a suggestion for
rehearing en banc was entered on August 5,
1981. That. Order is contained in Appendix
"2

The jurisdiction of this Court is in-

voked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Pursuant to Rule 21.1(f), United
States Supreme Court Rules, the statutory
provisions which this case involves are set
forth in Appendix "D". Those provisions
are:

1. 18 U.S.C. §844(i): Damage by Ex-
plosives to Vehicles (Appendix "D", page 118);

2. 18 U.S.C. §1951: Interference with
Commerce by Threats or Violence (App. D,
pp 118-119);

3. 18 U.S.C. §1952: Interstate Trans-
portation in Aid of Racketeering Enterprises
(App. D, p. 120-121);

4. 18 U.S.C. §1961(1)-(5); Defini-
tions - Racketeer Influenced and Corrupt
Organizations ("R.I.C.0.") (App. D, p. 121-3);

5. 18 U.S.C. §1962(c) and (d); Pro-
hibited Activities (R.I.C.0.) (App. D, p.123);

6. 18 U.S.C. §1963: Criminal Penal-
ties (R.I.C.0O.) (App. D, p. 123);

3

7. $418 U.S.C. §1964: Civil Remedies
(R.I.C.0.) (App. D, pp 125-6);

8. 29 U.S.C. §151: Findings and De-
Claration of Policy (National Labor Rela-
tions Act of 1947) ("N.L.R.A.") (App. D,
pp 126-128);

9. 29 U.S.C. §152(9): Definitions
(N.L.R.A.) (App. D, p. 128);

10. 29 U.S.C. §157: Rights of Employ-
ees as to Organization, Collective Bar-
gaining, etc. (N.L.R.A.) (App. D,pp 128-9);

ll. 29 U.S.C. §401: Congressional
Declaration of Findings, Purposes, and
Policy (Labor-Management Reporting and
Disclosure Act of 1959) (App. D, pp 129-130);

12. 29 U.S.C. §501: Fiduciary Re-
sponsibility of Officers of Labor Organi-

zations (App. D, pp 131-133).

STATEMENT OF THE CASE

A. PROCEEDINGS BELOW

On November 20, 1979, a Federal Grand
Jury for the Central District of California
returned a ten count Indictment in the pre-
sent case. (Clerk's Record, "CR", Docket
Control Number 1) A copy of the Indictment
is contained in Appendix "E",

The Indictment charged the five peti-
titioners, each of whom is an officer or
employee of the Teamsters Union, with being
an “enterprise” engaged in a pattern of
racketeering activity. It was thus alleged
that the petitioners had taken part in a
racketeering conspiracy in violation of 18
U.S.C. §1962(d), the Racketeer Influenced
and Corrupt Organizations statute
( "R.I.C.0."). (Appendix E, pp 134-7)

The Indictment, which alleged that the
petitioners were engaged in an effort to
unionize employees of a moving and storage

5

company, also charged violations of 18
U.S.C. §1952, Interstate Transportation in
Aid of Racketeering Enterprises (the "Tra-
vel Act"); 18 U.S.C. §844(i), Damage by
Explosives to Vehicles; and 29 U.S.C.
§50l1(c), Embezzlement of Union Funds.

(Id.)

On January 21, 1980, a hearing was
held on petitioners’ motion to dismiss
the Indictment for failure to state offen-
ses under Federal Law (CR 54; Reporter's
Transcript, "RT", January 21, 1980).

On March 17, 1980, the District Court
filed an Opinion and Order dismissing the
Indictment. (CR 76; Appendix "B") Judg-
ments of Discharge as to each petitioner
were filed on the same day. (CR 76)

On April 9, 1980, under the authority
of 18 U.S.C. §3731, the Government appealed
to the Court of Appeals for the Ninth Cir-

cuit. (CR 77)

On May 20, 1981, the Opinion of the
Court of Appeals was entered. (Appendix
"A") With one Judge dissenting, the Court
of Appeals reversed the District Court's
dismissal of the counts of the Indictment
charging violations of the R.I.C.0. statute,
the Travel Act and the explosives statute.

_ (Appendix A, pp 20, 69)

The Court of Appeals, holding that the
allegations in the Indictment were suffi-
cient, also reversed the District Court's
dismissal of the counts of the Indictment
charging violations of the embezzlement
statute, 29 U.S.C. §50l(c). (Appendix A,
pp 22, 69)

A petition for rehearing was denied on

August 5, 1981. (Appendix nanyl/

1/ The names of all parties to the pro-
ceeding in the Court of Appeals are con-
tained in the caption of the present
Petition.

B. STATEMENT OF FACTS

Between approximately July 1, 1978
and December 1, 1978, two Local Unions of
the International Brotherhood of Teamsters
sought to unionize employees of Redman
Moving and Storage Company, Thousand Oaks,
California ("Redman"). (CR 1, [Indictment]
pp 1-3; Id. Appendix E, pp 134-7 )

Local 186, aided by Local 389, sought
to induce Redman into recognizing the Team-
sters Union. Redman employees had elected
Local 186 as their bargaining agent. The
election had been certified by the National
Labor Relations Board. In July 1978, after
Redman had refused to recognize the Team-
sters as bargaining agent, Local 186 or-
dered a strike against Redman. (Id.;

RT 12-13)

During the course of this lawful
strike, the acts alleged in the Indictment
purportedly took place. To induce Redman

8

into recognizing the union, three trucks
were purportedly damaged or destroyed, and
plans to destroy another truck were alle-
gedly made. (Appendix E, pp 137-9)

In attempting to induce Redman into
recognizing the Teamsters, expenses were
incurred by the Locals and by certain of
their members. (Appendix E, p139) Payment
of or reimbursement for these expenses by
the Locals was charged as embezzlement of
union funds in the Indictment. These dis-
bursements were also alleged to be part of
the “pattern of racketeering activity”
charged in the R.I.C.0O. count. (Id.)

Certain defendants charged gasoline
purchases for the vehicles which they were
using on union credit cards. Seven gaso-
line purchases ranging in the amount from
$5.00 to $14.00 were alleged. The credit
card bills were paid by the Locals. (Id.
at 151-165)

Telephone calls were charged to union
telephone credit cards, the monthly bills
for which were paid by the Locals. Other
expenses incurred in connection with efforts
to unionize Redman, including automobile
and airplane rental expenses, were paid for
or reimbursed by the Locals. (Id.)

All such expenses were incurred in
connection with the Locals' attempt to
unionize Redman (Id. 139) The constitution
of each Local authorized payment of or re-
imbursement for such expenses. (Appendix B
p.99 and n.13, p 111) The Indictment suggests
that the use of union funds had been auth-
orized for these expenses. (Appendix E,
pp 151-165) The funds were not converted to
the personal use of any defendant or any

other person. (RT 8-9; CR 58, pp 1-2)

10

ARGUMENT

A. THE RATIONALE ANIMATING UNITED STATES

v. ENMONS, 410 U.S. 396 (1973) PRE-

CLUDES APPLICATION OF THE FEDERAL

CRIMINAL LAWS CHARGED IN THIS CASE

TO ACTS DONE IN FURTHERANCE OF A

LEGITIMATE LABOR DISPUTE

In 1973, this Court was asked to
determine whether the Hobbs Act, 18 U.S.C.
§ 1951, proscribed ". . . violence com-
mitted during a lawful strike for the
purpose of inducing an employer's agree-
ment to legitimate collective-bargaining

demands." United States v. Enmons, 410

U.S. 396, 399 (1973).

The Court rejected the application
of the Hobbs Act to acts of violence com-
mitted by union members to secure a
collective-bargaining agreement. The
violent acts, directed at a utility com-

pany, included blowing up a transformer

ll

substation owned by the company and firing
high-powered rifles at company transform-
ers. Id. at 398. Among other things, the
Court held that violence to achieve legi-
timate union objectives was not covered
by the extortion provision of the Hobbs
Act, because there could have been no
“wrongful” taking of the employer's prop-
erty. Id. at 400.

In the present case, the Government
again seeks to prosecute union members
for extortionate acts committed during
the course of and in furtherance of a
lawful labor dispute which had as its
objective the attainment of a legitimate
collective-bargaining agreement. This
time, instead of using the Hobbs Act, the
Government is employing different Federal
criminal statutes to accomplish the same
result. The Government, by attempting

to evade the dictates of Enmois, supra,

12

while ignoring the carefully crafted limi-
tations of Federal labor law, is once more
seeking to expand Federal criminal juris-
diction.

In Enmons, supra, following an anal-

ysis of the pertinent legislative history,
the Court concluded that Congress had not
intended to exercise its power to reach
the acts of violence charged. Id. at

410; see Id. at 413 (Mr. Justice Black-
mun, concurring). The Court noted that
the Government's interpretation of the
Hobbs Act:

",. . « would cover all overtly
coercive conduct in the course
of an economic strike, obstruc-
ting, delaying, or affecting
commerce. The worker who threw
a punch on a picket line, or
the striker who deflated the
tires on his employer's truck
would be subject to a Hobbs

Act prosecution and the possi-
bility of 20 years’ imprison-
ment and a $10,000 fine.” Id.
at 410.

Finally, the Court held that, for
13

two reasons related to its construction
of the term “wrongful,” the Hobbs Act
could not properly be expanded in the
manner sought by the Government, ". ..
{e]ven if the language and history of the
Act were less clear than we have found
them to be. ..." Id. at 4ll. The
Court first stated that a criminal stat-
ute such as the Hobbs Act must be strictly
construed and any ambiguity resolved in
favor of lenity. Id.

The Court then addressed itself to
the same important questions of Federal
criminal and labor law presented by the
present case. In rejecting the Govern-
ment's attempt to bring about a major
expansion of Federal criminal jurisdic-
tion, the Court stated:

"Secondly, it would
require statutory language
much more explicit than that

before us here to lead to the
conclusion that Congress in-

14

tended to put the Federal
Government in the business
of policing the orderly con-
duct of strikes. Neither
the language of the Hobbs
Act nor its legislative
history can justify the
conclusion that Congress
intended to work such an
extraordinary change in
federal labor law or such an
unprecedented incursion into
the criminal jurisdiction of
the States. [citations
omitted)" Id. at 411.

Once again, the Government asks this
Court to thrust the Federal Government
into the business of ". . . policing the
orderly conduct of strikes." Id. By
charging acts of vandalism which amount
to extortion in a legitimate labor con-
text under sections of Federal criminal
law other than the Hobbs Act, the Govern-
ment again seeks to make the Federal
Courts the arbiter of disputes histori-
cally left to the criminal jurisdiction
of the States. Id. at 410, 411-412.

The petitioners are charged with

15

violations of the Racketeer Influenced and
Corrupt Organizations statute ("R.I.C.0."),
18 U.S.C. § 1962(d); the statute prohibi-
ting Interstate Travel in Aid of Racke-
teering (the "Travel Act"), 18 U.S.C.

§ 1952; the Damage by Explosives to Vehi-
cles, 18 U.S.C. § 844(i); and Embezzle-
ment of Union Funds, 29 U.S.C. § 50l(c),
for acts done to induce an employer into
recognizing their union. (Appendix E
[Indictment], pp 136-7) Thus, in an effort
to skirt the proscriptions of Enmons and
the dictates of the National Labor Rela-
tions Act, the Government has employed
different statutes to accomplish the same
objective sought in Enmons.

B. THE INDICTMENT IMPROPERLY INTRUDES

INTO A FEDERALLY PROTECTED AREA

During the period of time covered by
the Indictment, two Locals of the Inter-
national Brotherhood of Teamsters “sought

16

to unionize Redman [Moving and Storage
Company] employees." (Appendix E [Indict-
ment], p 135) In an effort to unionize
Redman, the Locals employed both organi-
zational efforts and a strike. Both the
strike and its objectives were legal, and
the union's activities were protected
under a comprehensive Federal statutory
scheme.

Through numerous pieces of legisla-
tion, including the National Labor Rela-
tions Act, Congress has established a
comprehensive statutory and administra-
tive scheme to protect the rights of
unions and union members pursuing legi-
timate labor objectives. Such legisla-
tion underscores the significance which
Congress attributes to the labor move-
ment. It was the clear intent of Congress
that Federal labor law or State criminal
and civil proceedings be employed to

17

police events occurring during efforts to
achieve legitimate labor objectives.

United States v. Enmons, supra, 410 U.S.

at 411; United States v. DeLaurentis, 491

F.2d 208, 211, 214 (2nd Cir. 1974).

The National Labor Relations Act of
1947 (the “Act") first discusses the burdens
on and obstructions to interstate commerce
caused by “strikes and other forms of in-
dustrial strife or unrest..." Section One
of the Act then goes on to state that:

"It is declared to be the
policy of the United States to
eliminate the causes of certain
substantial obstructions to the
free flow of commerce and to
mitigate and eliminate those
obstructions when they have
occurred by encouraging the
practice and procedure of col-
lective bargaining and by pro-
tecting the exercise by workers
of full freedom of association,
self-organization, and designa-
tion of representatives of their
own choosing, for the purpose of
negotiating the terms and condi-
tions of their employment or other
mutual aid and protection."

29 U.S.C. § 151

18

The Act goes on to create the National
Labor Relations Board, 29 U.S.C. § 153; to
set forth the rights of employees, 29
U.S.C. § 157; to define unfair labor prac-
tices of both employers and unions, 29
U.S.C. § 158; and to set forth the terms
for the selection of labor representa-
tives by employees, 29 U.S.C. § 159. It
is highly significant to note that no-
where in this exhaustive scheme of
Federal labor legislation does Congress
make a criminal act committed as part
of a labor dispute a Federal offense.

United States v. DeLaurentis, supra, 491

F.2d at 212-213.

Labor unions are by their very nature
involved in organizational activity which
includes economic coercion. The Act
acknowledges that coercion brought to
bear in an effort to induce an employer

into recognizing a union has a substantial

19

effect upon interstate commerce. Absent
specific Congressional intent, the use of
coercive tactics to obtain legitimate
labor objectives is beyond the reach of

Federal criminal law. United States v.

Quinn, 514 F.2d 1250, 1257 (5th Cir.
1975), cert. denied 424 U.S. 955 (1976);

cf. United States v. Caldes, 457 F.2d

74, 76-77, 79 (9th Cir. 1972).

In the present case, the Court of
Appeals stated that Federal labor laws
do not provide the exclusive remedy for
dealing with union violence to achieve
collective-bargaining purposes. United

States v. Thordarson, et al., 646 F.2d

1323, 1331 (9th Cir. 1981) (Appendix A,
p17) This is correct; other remedies
are available. Injunctive relief may

be sought in Stete courts. See Beacon

Moving and Storage, Inc. v. Local 814,

Etc., 362 F. Supp. 442, 444-445 (S.D.N.Y.

20

1972) .2/ Compensation for damages may be
obtained under State tort laws. United

States v. Thordarson, et al., supra, 646

F.2d at 1331 n. 13. (Appendix A, p 51)
Federal Court injunctive relief is avail-
able. Scott v. Moore, 640 F.2d 708, 714,
723-4, 731 (5th Cir. 1981). Finally,
criminal acts may be prosecuted under State

law. Thordarson, supra, 1331, 1338 (Judge

Pregerson, dissenting) (Appendix A, pp 18,

19, 72); United States v. Enmons, supra,

410 U.S. at 410-412.
However, the conclusion of the Court

of Appeals that the Federal criminal stat-

2/ The RICO Act authorizes injunctive relief.
These provisions are found in both the criminal
penalties, 18 U.S.C. § 1963(b), and civil remedies,
18 U.S.C. § 1964(a) (b). Under the Government's
theory, the injunctive relief available as a cri-
minal penalty in § 1963(b) could logically be used
to restrain acts done by union members in further-
ance of legitimate labor objectives, which acts
violated § 1962. See United States v. Turkette,
U.S.__, 101 S.Ct. 2524, 2529-2530, | L.Bd (1981)
(discussion of civil remedies under RICO).

21

utes charged here may be applied to acts
committed in furtherance of legitimate
labor disputes lacks persuasive legisla-
tive or judicial support. The Majority
Opinion was unable to point to anything
in the legislative history of Federal
labor laws to support its conclusion.
Instead, the Court below stated:

"Nothing in the language or
legislative history of federal
labor legislation suggests
that federal criminal statutes
--enacted to supplement state
criminal sanctions--should not
Similarly be available to
punish union members and offi-
cials who try to achieve col-
lective bargaining goals by
means of the kind of violence
charged in the indictment
before us." Id. (Appendix A,
p 18)

This falls far short of the explicit
statutory language and clear legisla-

tive history called for in Enmons, supra,

410 U.S. at 4ll.

Nor is the Court of Appeals able to
22

rely upon persuasive judicial precedent
for its conclusion. In again attempting
to turn a lack of authority into support
for its conclusion, the Court cites three
explosives cases in which the issues dealt
with in Enmons and presented by the pre-
sent case were neither raised nor dis-

cussed. Thordarson, supra, 646 F.2d at

1327 n. 8 (Appendix A, pp 40-41).2/ This
paucity of case support is indicative of
the fact that the Government has rarely
sought to use Federal criminal laws to
police labor disputes.

It is without question that certain
acts of violence and threats of violence

committed by either unions or employers

3/ United States v. Parker, 586 F.2d
422 (5th Cir. 1978), cert. denied, 441
U.S. 962 (1979); United States v. Love,
482 F.2d 213 (5th Cir.), cert. denied,
414 U.S. 1026 (1973); Langel v. United
States, 451 F.2d 957 (8th Cir. 1971).
Langel was actually decided before
Enmons, supra.

23

can, in certain narrowly defined circum-
stances, be held to be unfair labor

practices. 29 U.S.C. § 158. See NLRB v.

Union Nacional de Trabajadores, 540 F.2d

1, 10-11 (lst Cir. 1976), cert. denied,

429 U.S. 1039 (1977); NLRB v. Georgetown

‘Dress Corporation, 537 F.2d 1239, 1242

(4th Cir. 1976). In the present case, it
is sufficient to say that nothing done
during the course of the Union's efforts
to induce Redman into recognizing it was
ever found or even alleged to constitute
an unfair labor practice. To now claim
that certain acts allegedly committed in
furtherance of that legitimate labor dis-
pute are Federal crimes is an insidious
intrusion into a federally protected area.

United States v. DeLaurentis, supra, 491

F.2d at 214.
24

C. BEFORE FEDERAL CRIMINAL STATUTES CAN

BE APPLIED TO ACTS OCCURRING IN CON-

NECTION WITH A LEGITIMATE LABOR DIS-

PUTE, A CLEAR EXPRESSION OF CONGRES-

SIONAL INTENT IS NECESSARY

1. No Specific Legislative Intent

Exists Supporting the Applica-

tion of the Statutes Charged in

this Context.

The application of R.I.C.0., the Tra-
vel Act, the explosives statute and the em-
bezzlement statute to acts allegedly com-
mitted in the context of a legitimate labor
dispute is not supported by clear legis-
lative intent. On the contrary, it is the
clear intent of Congress that such acts,
if criminal, shall be left to the States.

United States v. Enmons, supra, 410 U.S.

at 411; United States v. Quinn, supra, 514

F.2d at 1257.

As stated in Bell v. United States,

25

349 U.S. 81, 83 (1955):

"When Congress has the will it has

no difficulty in expressing it ....

When Congress leaves to the Judiciary

the task of imputing to Congress an

undeclared will, the ambiguity should
be resolved in favor of lenity."

The Government attempts to distinguish
Enmons by stating that, while extortion in a
labor context was charged in Enmons, the
present case involves the simple crime of
arson. Such an attempt ignores the very
language of the Indictment, as well as the
principles enunciated in Enmons. As noted
earlier, the Government alleges that, dur-
ing the period of time covered by the
Indictment, the Locals "sought to unionize
Redman employees." (Appendix E [Indict-
ment], p 135) The Government then goes on
to charge:

"It was part of the conspiracy

that the defendants would and did

utilize fear, threats and violence,

including arson and threats of arson
to induce Redman Moving and Storage

Company by unlawful means into recog-

26

nizing the Teamsters Union."
(Id. at p 137)

Thus, even if the Government's re-
strictive interpretation of Enmons is
correct, it is clear that the Indictment
has in fact charged the defendants with ex-
tortion in the context of a legitimate
labor dispute.

The Government's reading of Enmons

is too narrow. United States v. Thordar-

son, supra, 646 F.2d at 1338 (Judge

Pregerson, dissenting) (Appendix A p 70).
A similar attempt by the Government to
avoid the dictates of Enmons was rebuffed

in United States v. DeLaurentis, supra, 491

F.2d 208 (2nd Cir. 1974). In DeLaurentis,

the Government attempted to utilize an 1870
Civil Rights statute to prosecute three
officers of a labor union for conspiring to
“injure, oppress, threaten and intimidate"
members of the union in the free exercise

of their right not to participate in certain

27

labor activity. The Second Circuit re-
versed the defendants’ convictions and
ordered the Indictment dismissed, ruling
that the defendants’ acts had not been made
criminal by Congress. Id. at 2ll, 214.

The Court held that the comprehen-
sive statutory scheme enacted by Congress
as the National Labor Relations Act con-
trolled the regulation of acts such as those

at issue in DeLaurentis. Id. at 21l. The

Court noted that criminal penalties were not
intended for violations of the Act; such
penalties were "conspicuously absent" from

the Act. Id. at 212-213; See United States

v. Caldes, supra, 457 F.2d at 78.

As in this case, the violence charged

in DeLaurentis occurred in the course of a

legitimate labor dispute. As here, the de-
fendants were not charged with seeking per-
sonal gain, but with conspiring to advance

the aims of their union by illegal means.

28

As here and in Enmons, the statutory
language arguably applied to the Acts
alleged. 491 F.2d at 211-212; Enmons,

supra, 410 U.S. at 399; See United States

v. Turkette, supra, 101 S.Ct. at 2527.

Relying upon Enmons, the Second
Circuit ordered the Indictment dismissed,
because the language and history of the
statute charged did not explicitly reflect
the intent of Congress to make even
violent criminal acts committed in fur-
therance of legitimate labor goals Federal

offenses. Citing Enmons and United States

v. Bailes, 120 F.Supp. 614, 637 (S.D.W.Va.
1954), the Second Circuit concluded:
"The Government has unjustifiably

used federal law to convert an un-
fair labor practice into a criminal

29

conspiracy." 491 F.2d at 2144/

The lengthy discussion of the legisla-

tive history of the R.I.C.O. Act in United

States v. Turkette, supra, 101 S.Ct. at

2531-2534 and notes 11-14, makes it clear
that the major purpose of Congress in en-
acting R.I.C.0. was to ". . . address the
infiltration of legitimate business by

organized crime." Id. at 2532. Congress

sought to attack the source of organized

~
:

4/ As the Ninth Circuit stated in Caldes,
supra, 457 F.2d at 79:

"[I]t appears to us that the acts

of vandalism of the type committed
by these appellants would be more
properly and suitably piosecuted in
the state courts and it is doubtful
if Congress intended by Section 195l
to elevate this type of conduct to
the level of the federal court."

See United States v. Quinn, supra, 514
F.2d at 1257; C£. Scott v. Moore, supra;
640 F.2d at 723-724 ("Section 1985(3)
cannot be invoked to disrupt the opera-
tion of a carefully integrated statutory
scheme" and citing United States v. De-
Laurentis, supra),

30

crime's economic power, whether that power
was wielded through legitimate or illegi-
timate enterprises. Id at 2532-2534.

See also United States v. Marubeni America

Corp., 611 F.2d 763, 769 n. 11 (9th Cir.
1980).

It is also established that R.I.C.O.
is not limited to members of "organized
crime" or “labor racketeers” as those terms

are commonly used. United States v.

Thordarson, et al., supra, 646 F.2d at

1328-1329 n. 10. Nor is the reach of the

Travel Act limited in this fashion. 1a.2/

5/ However, Courts have repeatedly rejected
an “expansive" application of the Travel
Act which, among other things, "...might
well produce situations in which...rela-
tively minor state offenses [would be
transformed] into federal felonies." Rewis
v. United States, 401 U.S. 808, 812 (1971),
as quoted in Erlenbaugh v. United States,
409 U.S. 239, n. (1972); United
States v. Polizzi, 500 F.2d 856, 874 (9th
Cir. 1974), cert. denied 419 U.S. 670 (1975)
["...-prosecutions of minor illegal acts in-
cidental to an otherwise legal business."]

31

Nevertheless, before these statutes
may be applied to acts done in furtherance
of legitimate collective-bargaining ob-
jectives, a clear expression of Congres-
sional intent must be found. The explicit
language of the statutes fails to disclose
such an intent. The legislative history
of the statutes fails to disclose such an
intent. In the absence of such an expres-
sion of Congressional intent, it cannot be
concluded that Congress:

". . »« intended to work such an extra-

ordinary change in federal labor law

or such an unprecedented incursion
into the criminal jurisdiction of

the States."
Enmons, supra, 410 U.S. at 41l

Congress is now considering legisla-
tion which would, in effect, limit the
scope of the Enmons' decision. This action
is an indication of the fact that Congress
did not intend present Federal criminal

laws to cover acts committed to further

32

legitimate labor disputes. The legislation
as originally proposed in the Senate was
designed to amend the extortion laws and
contained a highly significant exclusion.
Sub-paragraph (b) of proposed Section 1722
of S.1722 (96th Congress, First Session)
stated:

“(b) BAR TO PROSECUTION.--It is a bar
to prosecution under this section
that the offense occurred in connecti-
on with a labor dispute as defined in
29 U.S.C. 152(9) to achieve legiti-
mate collective bargaining objectives,
unless there is clear proof that the
conduct which constitutes the threat
or placing in fear required under sub-
section (a)(1l) consists of a felony
and the conduct was engaged in for
the purpose of causing death or severe
bodily injury in order to secure such
objectives; and the Attorney General,
Deputy Attorney General, or Assistant
Attorney General for the Criminal
Division certifies in writing that--
"(A) the facts establish the exist-
ence of the additional elements of
the offense required under this
subsection;
"(B) a federal prosecution should
be commenced under this section; and
"(C) the State is unable or unwill-
ing to proceed with any equivalent
prosecution relating to such conduct.

(pp 119-120 of Report No. 96-553)
33

S. 1722 thus recognized the deference ac-
corded to State criminal proceedings in this
sensitive area of federally protected rights.

On March 3, 1981, a Bill which, if
passed, would effectively overrule Enmons
was introduced in the first session of the
Ninety-Seventh Congress. S. 613 is pre-
sently being considered by the Senate
Judiciary Committee. In addition to extor-
tion provisions, S. 613 also prohibits
certain acts affecting interstate commerce
without regard to "extortion" or "wrongful
taking." See 4(a) sub-paragraphs (1) and
(2), which relate to acts involving threats
of death and property damage of a certain
dollar amount. Subsection (c)(2) then
states:

"Nothing in this section shall be

construed as indicating an intent on
the part of the Congress--

34

"(2) to exclude federal juris-
diction over the offenses defined
in this section on the ground that
the conduct is also a violation of
state or local law, or that the
conduct, if it involves force,
violence, or fear thereof, takes
place in the course of a legitimate
business or labor dispute or in
pursuit of a legitimate business
or labor objective."

S. 613 is thus a clear indication of a
belief on the part of Congress (and perhaps
the Justice Department) that acts such as are
charged in this case are not covered by ex-
isting Federal criminal laws.

As was stated in the dissenting
Opinion in the Court below:

"More serious, however, is the
majority's failure to appreciate
that the Enmons decision rests not
solely on the interpretation of
the particular statute involved
there, but on a broad historically
justified concern that the federal
government not intrude into the
business of policing the orderly
conduct of legitimate labor dis-
putes. Punishing lawlessness
perpetrated during labor disputes
has historically been and should
continue to be the province of

35

the States and their law enforce-

ment authorities."

Thordarson, supra, 646 F.2d at

Judge Pregerson, dissenting)

(Appendix A, pp 71-72)

The majority opinion in the Court
below itself recognizes that Enmons cannot
be read as based solely on the language
and legislative history of the Hobbs Act.
After noting that the Travel Act includes
///

///
///
///
///
///
///
///
///
///
///

///

extortion within its definition of “unlaw-
ful activity", and that R.I.C.0. includes
extortion chargeable under State law within
its definition of "racketeering activity",
the majority states:
"In light of the emphasis in Enmons
on the special characteristics of
the crime of extortion. .. its
holding delimiting the scope of the
Hobbs Act arguably should be extended
to similarly limit the scope of the
RICO and Travel Act extortion pro-
visions. That issue, however, is not
before us at this time."
Thordarson, supra, 646 ».2d at 1327-
n. (Appendix A, pp 41-42)
Thus, the application of R.I.C.0O. and
the Travel Act to labor disputes creates
the same risk as the application of the
Hobbs Act to such disputes. Id at 1338
and n. 1 (Judge Pregerson, dissenting).
(Appendix A, pp 71, 72-73) Acts done in
furtherance of legitimate labor goals which
are extortionate in nature as well as acts
of vandalism incidental to legitimate

labor disputes will be transformed into
37

Federal felonies. Neither the language
nor the legislative history of the statutes
in question contemplates such a result.

2. Reference to Related Statutory

Schemes Reinforces the Conclusion

that Congress Did Not Intend

These Statutes To Be Used in the

Context of Legitimate Labor Dis-

putes and That the Prosecution

of Such Acts Has Been Left to the

States.

In a Travel Act case decided before
Enmons, the Court recognized the rule of
statutory construction that reference to
related statutory schemes is proper in re-
solving doubts as to the meaning of a stat-

ute. Erlenbaugh v. United States, supra,

409 U.S. at 243-245. The statutes charged
in the present case and the Hobbs Act per-
tain to the same subject and should there-

fore be construed "as if they were one law”

38

in resolving the issues presented in this
case. Id. at 243. As further noted in

Erlenbaugh, the principle necessarily as-

sumes that:

“[W]henever Congress passes a new

statute, it acts aware of all pre-

vious statutes on the same subject.

[citations omitted].” 409 U.S.

at 244.

The Hobbs Act, passed in 1948, and the
Travel Act, passed in 1961, are both found
in Chapter 95 of Title 18, “Racketeering.”
Even the Government states that they are
part of the same “legislative package.”
(Appellant's Opening Brief, Ninth Circuit,
p17, n. 22) The R.I.C.O. statute, passed
in 1970, is found in Chapter 96 of Title
18, “Racketeer Influenced and Corrupt
Organizations." These related statutes
all pertain to the same subject matter.
Moreover, 18 U.S.C. §844(i), Damage by Ex-
plosives to Vehicles Used in Interstate

Commerce, was enacted along with the

39

R.I.C.0. statute as part of the Organ-
ized Crime Control Act of 1970, Public

Law 91-452. All the statutes are part of
an overall congressional attempt to combat
racketeering activity and organized crime.

United States v. Turkette, supra, 101 S.

Ct. at 2531-2534; United States v. Thor-

darson, supra, 646 F.2d at 1328.

The legislative and judicial history
of the Hobbs Act, as discussed in Enmons,
supra, 410 U.S. at 401-408, and United

States v. Caldes, supra, 457 F.2d at 76-

77, further demonstrates that Congress did
not intend these statutes to be applied to
acts committed in connection with legi-
timate labor disputes.

In the Caldes case, which was decided
before and cited with approval in Enmons,
the Ninth Circuit concluded that the Hobbs

Act:

40

". . . Was not intended to reach low
level violence committed in con-
nection with bona fide labor disputes
between employers and employees."

Id. at 75.

As in the present case, the defendants
in Caldes were union officials attempting to
secure a collective bargaining agreement.
During protracted negotiations with a linen
supply company, the defendants purportedly
damaged property belonging to the company.
As here, the violence was intended to
pressure the company into an agreement.

Ia.

The Ninth Circuit examined the history
of the Hobbs Act, noting that it was en-
ected in reaction to the decision in

United States v. Local 807, 315 U.S. 521

(1942). In Local 807, the Supreme Court

held that Section 2(a) of the Anti-
Racketeering Act of 1934 (the “Copeland
Act") did not prohibit the demanding of
payment for unwanted, unnecessary or fic-

41

titious services by union members.
Id. at 75-76.

In a reaction to that decision, Con-
gress passed the Hobbs Act, which elimi-
nated Section 2(a) of the Copeland Act.
By so doing, however:

"Congress did not intend to eli-
minate traditional labor or union
activity, albeit militant, which has
as its object legitimate ends. The
exclusion was not meant to provide
impunity to the terroristic and ex-
tortionate activities of union
members, but to protect union acti-
vity directed towards legitimate
labor goals even when militantly pur-
sued." Id at 76. [emphasis added]

The Ninth Circuit noted that labor
activity may be proscribed under the Hobbs
Act, if it involves circumstances where
the services offered by the union are im-
posed, unwanted and superfluous or ficti-
tious. Id.at 77. On the other hand, the
Court stated that:

"Labor unions must be able to active-

ly and rigorously pursue the interest
of their members at all times, pro-

42

vided their activity is directed
toward legitimate ends."
Id. at 78.

In Enmons, supra, this Court affirmed

the District Court's dismissal of the
Indictment for failure to state a Federal
offense, holding that the Act did not apply
to the use of force to achieve legitimate
labor ends. 410 U.S. at 401. The Court
noted that no reported case had upheld the
theory that the Hobbs Act proscribed the
use of force to achieve legitimate col-
lective-bargaining demands. Id,at 408.

As the Court stated:

"Indeed not until the indictments
were returned in 1970 in this and
several other cases has the Govern-
ment even sought to prosecute under
the Hobbs Act actual or threatened
violence employed to secure a union
contract ‘calling for higher wages
and other monetary benefits.' [foot-
note omitted] Yet, throughout this
period, the Nation has witnessed
countless economic strikes, often
unfortunately punctuated by violence.
It is unlikely that if Congress had
indeed wrought such a major expansion
of federal criminal jurisdiction in

43

enacting the Hobbs Act, its action

would have so long passed unobserved."

Id.at 409-410.
Those comments apply with equal force to
the statutes employed in the present case.
By attempting to circumvept the dictates of
Enmons, the Government seeks to bring to
Federal Court the numerous instances of
strike-related violence which are a part of
many labor disputes. It was not the intent
of Congress to have such matters litigated
in a criminal context in Federal Court.

This attempt to expand Federal criminal

jurisdiction should be rejected.

44

CONCLUSION

Based upon the foregoing reasons,
it is respectfully submitted that a
Writ of Certiorari should issue to review
the Judgment and Opinion of the United
States Court of Appeals for the Ninth
Circuit.
Respectfully submitted,

STILZ, BOYD, LEVINE &
HANDZLIK

Attorneys for Petitioners

45

ba
ay

>

- A. &
\, he

APPENDIX A

FILLED

May 20, 1981
RICHARD H. DEANE
Clerk, U.S. Court
of Appeals

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Vv.

STEN THORDARSON,

MARTIN FRY,

CRAIG DUNBAR,

MARTIN SALGADO, and

CHARLES WISE,
Defendants~-Appellees.

ee eee ee ee ee ee ee

No. 80-1239

D.C. CR 79-946-RMT

OPINION

Appeal from the United States District
Court for the Central District of

. California
Robert M. Takasugi, United States
District Judge, Presiding
Argued and Submitted September 17, 1980

Before: FERGUSON, PREGERSON, and NORRIS,

Circuit Judges

NORRIS, Circuit Judge:

The government appeals from a district
court order dismissing a ten-count indict-
ment charging defendants with violating
18 U.S.C. §§ 1962(d), 1952, and 844(i),
and 29 U.S.C. § 50l(c). This court has
jurisdiction under 18 U.S.C. § 3731. We
reverse.

I. Facts

In 1978, the employees of the Redman
Moving and Storage Company of Thousand
Oaks, California, elected Teamsters Local
186 as their bargaining agent. When Red-
man refused to recognize the union, Local
186, aided by Teamsters Local 389, called
a strike against the company. During the
time of the strike, Redman trucks in Cali-
fornia, Arizona and Connecticut were
damaged or destroyed.

In November of 1979, a ten-count in-
dictment was filed in the United States

2

District Court for the Central District
of California, alleging that the defen-
dants--all officers or employees of Local
186 or Local 389--conspired to destroy
Redman trucks in an effort to coerce Red-
man into recognizing the Teamsters.

The indictment charges defendants
with the use of explosives to damage ve-
hicles used in interstate commerce in
violation of 18 U.S.C. § 844(i)} (Counts
2 and 3); travel in interstate commerce
to commit arson in violation of the

Travel Act, 18 U.S.C. § 19527

(Counts 4
and 5); conversion of union funds in
violation of 29 U.S.C. § 501(c)> (Counts
6 through 10); and conspiracy to conduct
the affairs of an enterprise through a
pattern of racketeering activity in
violation of the Racketeer Influenced
and Corrupt Organization Act (RICO), 18
U.S.C. § 1962(a) 4 (Count 1).° The al-

3

leged pattern of racketeering included
the conduct charged substantively in
Counts 2 through 10.

The district court dismissed all ten
counts of the indictment. The RICO, Travel
Act and explosives charges (Counts 1-5)
were dismissed on the authority of United

States v. Enmons, 410 U.S. 396 (1973),

which the district court read as "preclud-
{ing] federal prosecution for violent acti-
vity which occurs during the course of a
legitimate labor dispute” absent specific
authorization from Congress. United

States v. Thordarson, 487 F.Supp. 991, 995

(C.D. Cal. 1980). The conversion of union
funds charges were dismissed for failure
to allege essential elements of the offense.

II. Counts 1 through 5: United States v.

Enmons
In Enmons, the defendants were strik-
ing union members charged with using vio-

4

lence to obtain higher wages and other
employment benefits in violation of the
Hobbs Act, 18 U.S.C. § 1951. The issue
was whether acts of violence committed
during a lawful strike for the purpose of
inducing an employer's agreement to legi-
timate collective bargaining demands con-
stituted extortion, defined by the Hobbs
Act as "the obtaining of property from
another, with his consent, induced by
wrongful use of actual or threatened force,
violence or fear." 18 U.S.C. § 1951(b)
(2) .°

In interpreting the statute, Justice
Stewart, writing for the majority, focused
on the word "wrongful," and reasoned that
because it would be redundant to speak of
"wrongful violence" or “wrongful force,"
Congress must have intended “wrongful” to
limit the statute's coverage "to those in-
stances where the obtaining of the proper-

5

ty would itself be ‘wrongful’ because the
extortionist has no lawful claim to the
property." 410 U.S. at 400. Accordingly,
the Court held that violence to achieve
legitimate union objectives is not within
the Hobbs Act's prohibition because there
is no "wrongful" taking of the employer's
property when union members receive wages
and benefits in exchange for genuine ser-
vices bargained for by the employer.

The Court found support in the legis-
lative history of the Hobbs Act for its
interpretation of "extortion". The pre-
decessor of the Act, § 2 of the Anti-
Racketeering Act of 1934, 48 Stat. 979,
proscribed the exaction of valuable con-
sideration by force, violence or coercion,
but expressly excepted "the payment of
wages by a bona-fide employer to a bona-
fide employee." In enacting the Hobbs
Act, Congress eliminated this express

6

wage exception in response to the Supreme

Court's decision in United States v. Local

807, 315 U.S. 521 (1942). In that case,
the Court had held that the wage exception
immunized from prosecution under the Anti-
Racketeering Act New York City truck drivers
who "by violence and threats exacted pay-
ments for themselves from out-of-town
truckers in return for the unwanted and
superfluous service of driving ~ut-of-town
trucks to and from the city." Enmons, 410
U.S. at 402. The Enmons Court, however,
despite Congress’ repeal of the express
wage exception in enacting the Hobbs Act,
read the legislative history as evidencing
an intent to preserve an exemption for
violence in pursuit of legitimate collec-
tive bargaining objectives. Id at 404-07.
In particular, the Court pointed to assu-
rances given during the floor debate that
the Hobbs Act would not interfere with

7

legitimate labor activity and that a sim-
ple assault during a strike would not be-
come a federal crime under the Act. 1a.’
The Court noted that the broad inter-
pretation of extortion advanced by the
government would reach "all overtly coer-
cive conduct in the course of an economic
strike . .. [with the result that] [t]he
worker who threw a punch on a picket line
or the striker who deflated the tires on
his employer's truck would be subject to
a Hobbs Act prosecution and the possibi-
lity of twenty years’ imprisonment and a
$10,000 fine." Id. at 410. In rejecting
this reading of the statute, the Court
concluded:
{I]t would require statutory lan-
guage much more explicit than that
before us here to lead to the con-
clusion that Congress intended to
put the Federal Government in the
business of policing the orderly
conduct of strikes. Neither the
language of the Hobbs Act nor its
legislative history can justify

the conclusion that Congress intended

to work such an extraordinary change

in federal labor law or such an un-
precedented incursion into the
criminal jurisdiction of the United

States.

Id. at 411.

The defendants contend that the effect
of Enmons is to place violence during the
course of legitimate strike activity be-
yond the reach of all federal criminal laws.
We cannot agree. There is no basis in the
Court's decision or its underlying rati-
onale for the creation of an "Enmons doc-
trine" of immunity applicable to all fede-

ral criminal statutes.®

We read Enmons
as holding only that the use of violence
to secure legitimate collective bargain-
ing objectives is beyond the reach of the
Hobbs Act.

The Court's holding in Enmons turned
on its reading of the specific language of

§ 1951--particularly the term "wrongful"
9

in the definition of extortion--and its
reading of the Hobbs Act's singular leg-
islative history. By contrast, the de-
fendants have not cited, and we have not
found, anything in the statutory language
or the legislative history of the Travel
Act, RICO or § 844 of Title 18 which indi-
cates that Congress intended to exclude
from the reach of those statutes violence
in the pursuit of legitimate union ob-
jectives. Indeed, our reading of those
statutes suggests that Congress intended
no such exemption. ?
The Travel Act, on its face, applies
to "[w]hoever travels in interstate ...
commerce or uses any facility in inter-
state commerce .. . with intent to...
promote, manage, establish, carry on...
arson in violation of the laws of the State
in which committed or of the United States."
18 U.S.C. § 1952. Section 844(i) of Title
10

18 covers "[(w]hoever maliciously damages
or destroys, or attempts to damage or de-
stroy, by means of explosive, any...
vehicle . . . used in interstate commerce
- « »« Or in any activity affecting inter-
state .. . commerce." RICO provides that
it shall be unlawful to conspire "to conduct
Or participate .. . in the conduct [of an]
enterprise's affairs through a pattern of
racketeering activity ... ." 18 U.S.C.
§ 1962(c),(d). Racketeering activity in-
cludes "any act or threat involving...
arson . . . which is chargeable under state
law and punishable by imprisonment for more
than one year; .. . any act which is in-
dictable under title 18, United States Code
» « « Section 1952 .. . [and] any act
which is indictable under title 29, United
States Code, .. . section 50l(c)." 18
U.S.C. § 1961(1).

These statutes are written in general

1l

terms and make criminal the prescribed con-
duct without regard to the status or ulti-
mate objectives of the person engaging in

it.?° See, e.g., United States v. Roselli,

432 F.2d 879, 885 (9th Cir. 1970), cert.
denied, 401 U.S. 924 (1971) (Travel Act);

United States v. Perrin, 580 F.2d 730, 733

(Sth Cir. 1978), aff'd, 444 U.S. 37 (1979)

(Travel Act); United States v. Campanale,

518 F.2d 352, 363-64 (9th Cir. 1975),
cert. denied, 423 U.S. 1050 (1976) (RICO);

United States v. Field, 432 F.Supp. 55,

57-58 (S.D.N.Y. 1977), aff'd, 578 F.2d

1371 (2d Cir. 1978) (RICO). We consider it
improbable that Congress, having determined
that arson and the willful iisuse of ex-
plosives constituted a sufficiently grave
threat to persons and property to warrant
the imposition of federal criminal sancti-
ons, intended to make the imposition of
such sanctions depend upon whether the

12

person who willfully causes the fire or ex-
plosion did so for his own personal gain or
for the gain of members of his union.

Nor do we consider the policy arguments
advanced in Enmons applicable to this case.
In Enmons, the Court focused on the special
characteristics of the crime of extortion
which embraces any act or threat of violence,
however minor, used to obtain the property
of another. The underlying concern was that
to apply a federal extortion statute in the
context of the collective bargaining pro-
cess would transform minor acts of labor
violence punishable by state law into
federal felonies, thus placing the federal
government in the business of policing the
routine conduct of strike activity.

There is little, if any, risk that
the crimes charged in this indictment, if
applied to labor violence, would involve
the federal government in policing routine

13

strike activity. The destruction of ve-
hicles used in interstate commerce by
means of explosives and travel in inter-
state commerce to commit arson are hardly
the sorts of minor picket line violence
that the Enmons Court feared would be
transformed into federal crimes under the
Hobbs Act.

Moreover, there is no basis for the
contention that the indictment in this case
constitutes an unintended incursion into
state criminal jurisdiction. Both RICO and
the Travel Act explicitly prohibit conduct
also chargeable under state laws of arson.
18 U.S.C. § 1961(1); 18 U.S.C. §1952(b) (2).
In addition, the legislative history of 18
U.S.C. § 844 clearly shows that it was en-
acted in response to the perceived "absence
of any effective state or local controls"
over explosives. H.R. Rep. No. 91-1549,

9lst Cong. 2d Sess., reprinted in [1970]

14

U.S. Code Cong. & Ad. News at 4007, 4013.

See also United States v. Dawson, 467 F.2d

668, 671-73 (8th Cir. 1971), cert. denied,

410 U.S. 956 (1972). Thus, to the extent
that this indictment, by reaching conduct
also punishable under state law, represents
an incursion into state criminal juris-
diction, it was an incursion plainly and
deliberately undertaken by Congress.?+
To uphold the dismissal of Counts l
through 5, we would be required to create
an exemption for labor violence that would
necessarily be applicable to all federal
criminal statutes. As counsel for the
defendants candidly admitted during oral
argument, if an "Enmons doctrine" were to
immunize a union official from federal pro-
secution under the Travel Act or § 844(i),
it would, in all logic, immunize from
federal prosecution a union official--or,
indeed, an employer--desperate enough to

15

resort to kidnapping to achieve collect-
ive bargaining objectives. To carve out
a narrow exemption from a federal ex-
tortion statute on the basis of its
language and legislative history, as the
Supreme Court did in Enmons, is one thing;
to exempt a wide range of violent be-
havior from all federal criminal liabi-
lity, despite plain language that pro-
hibits such conduct, is quite another.
The defendants nevertheless contend
that the federal regulation of labor union
activities through a comprehensive scheme
of predominantly civil remedies evidences
a Congressional intent to exempt labor
violence from federal criminal prosecu-
tion. This argument is without merit.
The federal labor laws do not purport to
govern all unlawful conduct engaged in by
union members and officials. Thus, while
acts of violence directed at an employer

16

during a strike may be found, in some cir-
cumstances, to restrain or coerce employees
in the exercise of their rights guaranteed
under § 7 of the National Labor Relations

Act, see e.g., NLRB v. Union Nacional de

Trabajadores, 540 F.2d 1 (lst Cir. 1976),

cert. denied, 429 U.S. 1039 (1977); NLRB v.

United Mine Workers, 429 F.2d 141, 147-48

(3rd Cir. 1970), they are not in and of
themselves unfair labor practices. Cf.

Linn v. Plant Guard Workers, 383 U.S. 53,

63 (1966) (defamation arising during a
labor dispute is not an unfair labor prac-
tice absent showing that it interfered
with exercise of specific rights guaran-
teed under the National Labor Relations
Act). Moreover, even to the extent that
federal labor laws do reach union violence
to achieve collective bargaining object-
ives, it is clear that they do not provide
the exclusive remedy for such violence.

17

See Linn v. Plant Guard Workers, supra;

Auto Workers v. Wisconsin Board, 35l U.S.

266, 272-73 (1956). Defendants concede,
for example, that arson and the destruc-
tion of property by means of explosives may
be prosecuted under state criminal laws
whether or not those acts also constitute
unfair labor practices. !? Nothing in the
language or legislative history of federal
labor legislation suggests that federal
criminal statutes--enacted to supplement
state criminal sanctions--should not simi-
larly be available to punish union members
and officials who try to achieve collect-
ive bargaining goals by means of the kind
of violence charged in the indictment be-
fore us.

The defendants’ reliance on United

States v. DeLaurentis, 491 F.2d 208 (2d

Cir. 1974), is also misplaced. In

DeLaurentis, the federal government invoked

18

an 1870 civil rights statute to prosecute
union officials for threatening and inti-
midating union members in violation of

§ 7 of the National Labor Relations Act,
which gives an employee the right to re-
frain from engaging in concerted union acti-
vities. In reversing the conviction, the
Second Circuit held that Congress did not
intend § 7 violations to be enforced under
the 1870 Civil Rights Act, 18 U.S.C.

s 241,14

but rather intended such violations
to be enforced by the procedures and sanc-
tions provided by the National Labor
Relations Act. In this case, the undispu-
ted availability of state criminal law
demonstrates that the procedures and civil
sanctions set forth in the National Labor
Relations Act were not intended to be the
exclusive means of regulating violence to
achieve collective bargaining objectives.

Moreover, in contrast to the broad language

19

of the 1870 Civil Rights Act prohibiting
persons from conspiring to "injure, op-
press, threaten or intimidate any citizen
in the free exercise or enjoyment of any
right or privilege secured by him by the
- « »« laws of the United States," the
language of the statutes involved in this
appeal plainly and specifically reaches
the acts of violence alleged in the in-
dictment.

We therefore reverse the dismissal of
Counts 1 through 5 of the indictment.

III. Counts 6 through 10: the § 501(c)

Violations

The government also appeals from the
district court's dismissal of Counts 6
through 10 of the indictment which charge
the defendant with using union funds to
destroy Redman trucks in violation of
§ 50l(c) of the Landrum-Griffith Act, 29
U.S.C. § 501(c). Section 50l1(c) prohibits

20

a union officer or employee from convert-
ing union funds to his own use or the use
of another.?°
The district court dismissed Counts 6
through 10 apparently for failure to allege

essential elements of the offense. See

United States v. Thordarson, 487 F.Supp.

991, 995-99 (C.D. Cal. 1980). The district
court held that the essential elements of
§ 501(c) include (1) a fraudulent intent to
deprive the union of its funds and (2)
either a lack of union authorization or an
absence of a good faith belief in benefit
to the union. Id. at 996-97. Not finding
these elements alleged in the indictment, /®
the district court dismissed. Id. at 998-
39.

The government contends that the use
of union funds for an illegal purpose con-

stitutes a per se violation of § 501l(c)

under United States v. Boyle , 482 F.2d

21

755 (D.C. Cir.), cert. denied, 414 U.S.

1076 (1973). This court, like the court
below, declines to follow Boyle and the per
se rule it espouses. We nevertheless con-
clude that the district court erred in dis-
missing the indictment for failure to allege
the essential elements of a § 50l(c) of-
fense. We hold that neither a lack of union
authorization nor an absence of good faith
belief in union benefit need be alleged in
an indictment as essential elements of

§ 50l1(c), and that the indictment in this
case adequately alleged fraudulent intent.
We reverse, therefore, the district court's
dismissal of Counts 6 through 10.

A. United States v. Boyle

The defendant in Boyle was convicted
of violating § 50l(c) by using union funds
to make campaign contributions. The con-
tributions were illegal under 18 U.S.C.

§ 610 (repealed Pub. L. No. 94-283, Title
22

II, § 20l(a), 90 Stat. 496 (1976)) which
prohibited labor unions from contributing
money to candidates for federal office.

On appeal, the defendant challenged his
conviction on two grounds. First, he con-
tended that to convict under § 50l(c) the
jury must find either that the expenditure
was made without union authorization or
that the union derived no benefit from the
expenditure. Second, he argued that § 501

(c) was intended to punish only knowingly

illegal or ultra vires expenditures. The

Court of Appeals for the District of Colum-
bia sejested both contentions.

The D.C. Circuit noted that "[nJo
officer or union governing body could in
all logic believe that a transfer for a
criminal purpose was for a legitimate union
purpose, was authorized by the union con-

stitution or by-laws, or was for the

union's benefit." United States v. Boyle,

23

482 F.2d at 765. Nor was there any "hint
in either the statute or its legislative
history that indicates a Congressional in-
tent to excuse from the ambit of § 50l(c)
transfers for a criminal purpose." Id.

The Court thus concluded "[i]Jf the use to
which the money is knowingly transferred
is unlawful, then the transfer constitutes
a violation of § 50l(c)." Id. at 764.

In this case, the union funds were
allegedly used for the purpose of financ-
ing the destruction of Redman trucks. The
government argues that since the expendi-
ture was for an unlawful purpose the
indictment is sufficient to state a § 501
(c) offense under the Boyle decision. We,
however, like the district court, find
Boyle unpersuasive.?’

Section 50l(c) states a "“larceny-type”

offense. United States v. Marolda, 615

F.2d 867, 872-73 (9th Cir. 1980) (Judge
24

Larson, concurring); United States v.

Silverman, 430 F.2d 106, 126-27 (2d

Cir.), modified on other grounds, 439 F.2d

1198 (1970), cert. denied, 402 U.S. 953

(1971). Although the scope of criminal
liability under § 50l(c) extends beyond the
common law offense of larceny and the old
statutory crime of embezzlement, the es-
sence of the § 50l(c) crime, like the older
crimes of embezzlement and larceny is the
"tak[ing] [of] another's property .

knowing that the other person would not have

wanted that to be done.” United States v.

Silverman, 430 F.2d at 126-127; United

States v. Andreen, 628 F.2d at 1241. Thus,

it is well established that proof of a
specific criminal intent to deprive the
union of its funds is required to make out
a § 50l(c) violation.

The Boyle court, however, would in

effect irrebuttably presume the requisite

25

criminal intent where union funds are used
for a criminal purpose. The effect of such
an approach would be to impermissibly con-
vert a “larceny-type" statute requiring a
fraudulent intent to deprive the union of
its funds into a statute subjecting indivi-
dual officers and employees to criminal
liability for union expenditures made for

prohibited purposes. /®

In addition, such an
interpretation would permit a conviction
under § 50l1(c) without a finding by the
trier of fact that the defendant has "taken
another person's property . . . knowing that

the other person would not have wanted that

to be done." United States v. Silverman,

430 F.2d at 126-127. We conclude that such
an approach improperly presumes an essenti-
al element of a § 50l(c) offense. Accord-
ingly, we decline to follow Boyle.

B. The Essential Elements of § 501l(c)

Since it is not disputed that fraudu-

26

lent intent is an element of §50l(c), we
must consider whether lack of authorization
and lack of good faith belief in union bene-
fit are also elements of § 50l(c). In two
recent cases this circuit addressed this
issue without totally resolving it. United

States v. Andreen, 628 F.2d 1236 (9th Cir.

1980); United States v. Marolda, 615 F.2d

867, 869-70 (9th Cir. 1980).

In Marolda, the defendant was convicted
of violating § 50l(c) after the court's
instructions to the jury failed to mention
lack of authorization or lack of union bene-
fit. The court reversed the conviction
because of a prejudicial variance between
the jury instructions and the language of
the indictment, which had explicitly alleged
both lack of authorization and lack of union
benefit. Id. at 870. Thus the court was
not required to reach the issue whether
either or both are essential elements of

27

§ 50l(c). Judge Larson, however, ina
well-reasoned concurring opinion, addressed
the issue and concluded that neither lack
of authorization nor lack of union benefit
is an essential element. Id. at 872.
Rather, he wrote, both bear on the issue

of criminal intent.

In Andreen, the court held that if the
government established lack of authoriza-
tion, it need not prove lack of union
benefit.19 628 F.2d at 1242-43. The court
expressly left open the issue now before us
--whether the government must allege and
prove lack of union benefit if it fails to
establish lack of authorization--although
in dictum it approved the position taken by
Judge Larson in his concurring opinion in

Marolda. Andreen, 628 F.2d at 1242. We

also agree with Judge Larson and now hold
that neither lack of authorization nor lack
of good faith belief in union benefit is an

28

essential element of § 50l(c). Neither,
therefore, need be alleged in the indictment,
even though we recognize that evidence of
either or both is likely to be admissible at
trial as bearing on the issue of criminal
intent to convert union funds to the defen-
dant's own use or the use of another.
Section 50l(c) is one of a number of
statutes in which Congress has extended
federal jurisdiction to cover common law
theft crimes. As noted by Judge Friendly in

United States v. Silverman, 430 F.2d at 126,

the language of § 50l(c) resembles the
language of such "“larceny-type" statutes
as 18 U.S.C. §§ 641, 645, 655-61.7° In
determining the elements of § 50l(c), we
are strongly influenced by the doctrine of
these other “larceny-type" statutes.

Judge Larson, in his concurrence in
Marolda, suggests that Congress, in enact-
ing § 50l(c), “was merely transmuting common

29

law theft crimes involving union funds and
committed by union officers or employees
into Federal crimes." 615 F.2d at 872.

The Supreme Court has stated in dictum that
18 U.S.C. § 641 was intended to combine the
common law theft crimes and also outlaw
acts which might fall into the “gaps or
crevices" separating those crimes.

Morissette v. United States, 342 U.S. 246,

271 (1952). As we read the legislative
history of § 50l(c), Congress' intent in
passing it was the same as with § 641.71
We see no evidence that Congress, in en-
acting § 50l(c), intended to add any new
elements to the common law theft offenses
except those necessary to show federal
jurisdiction and subject matter: that the
accused is (1) an official or employee

(2) of a labor organization (3) involved
in interstate commerce, and that (4) the

funds belong to the labor organization.

30

United States v. Bane, 583 F.2d 832, 836

n.9 (6th Cir. 1978), cert. denied, 439

U.S. 1127 (1979) (identifying the juris-

dictional elements of § 50l(c)); Silverman,

430 F.2d at 11l (same). Instead, as stated

in Morissette, supra, Congress intended to

simplify some of the technical requirements
of the common law crimes.

We therefore see no reason to add lack
of authorization or lack of good faith be-
lief in union benefit to the list of
essential elements of § 50l(c). Neither of
the two has a counterpart in the elements
of the common law theft crimes or of the

other federal theft statutes. **

"Congress
subjected union officers or employees to
the same test of criminal liability as
government employees, bank officers and

the like--not to a lower one." Silverman,

430 F.2d at 127. The two elements which
the government must allege and prove, in

31

addition to jurisdictional elements, in
making out a § 50l(c) violation, are the
same as those announced by the Supreme Court
for § 641: fraudulent intent and conversion
to the defendant's own use or the use of

another. Morissette, 342 U.S. at 271-72.73

See also United States v. Durnin, 632 F.2d

1297, 1300 (5th Cir. 1980).74

We do think that lack of authorization,
lack of union benefit, and the defendant's
failure to believe that there is authoriza-
tion or union benefit, all are likely to
bear on the essential element of fraudulent

intent. See Andreen. 628 F.2d at 1242-43;

Marolda, 615 F.2d at 873 (Larson, J., con-
curring). In a particular case, these
factors may be crucial in determining the
defendant's intent. In such a case, a jury
instruction concerning them is likely to
be appropriate.

For example, in this case, appellants

32

are free to argue that they had no criminal
intent because they believed that blowing
up trucks conferred a benefit on the union
and that the union, were it able to speak,
would have wanted its money spent for such
an unlawful purpose. The government can
argue the contrary and in so doing is free
to introduce evidence that destroying the
trucks was unauthorized and did not work to
the benefit of the union members as a whole.
The trier of fact will then have to deter-
mine whether the government has proved its
case that the defendants have "'taken
another person's property .. . knowing that
the other person would not have wanted that
to be done,'" Andreen, 628 F.2d at 1241,

quoting Silverman, 430 F.2d at 126-27, and

that “the ‘union’ presumably would have
objected if it had been able to speak free-

ly." Silverman, 430 F.2d at 127.

In conclusion, we hold that the indict-

33

ment neec merely allege fraudulent intent,
and need not allege lack of authorization
nor lack of belief in union benefit.

C. The Sufficiency of the Indictment

The district court in this case ap-
parently held that the indictment was in-
sufficient not only because it failed to
set forth either lack of authorization or
lack of good faith belief in union benefit,
but also because it failed to adequately
allege fraudulent inte:.t. Upon review of
the indictment, however, we find that
fraudulent intent is adequately alleged.

Counts 6, 9, and 10 of the indictment
allege that the defendants "did embezzle,
steal, and unlawfully and wilfully ab-
stract and convert to their own use and
the use of another" the funds of the union.
Counts 7 and 8 of the indictment allege
that the defendants "did embezzle, steal
and unlawfully convert to their own use

34

and the use of another" the funds of the
union. Language just like that in Counts 6,
9 and 10 has been held to constitute a
sufficient allegation of criminal intent

under § 50l(c). See Colella v. United

States, 360 F.2d 792, 798-99 (lst Cir.),
cert. denied, 385 U.S. 829 (1966); Doyle

v. United States, 318 F.2d 419, 420-22

(8th Cir. 1963). The word "wilfully,"
read in the context of the statutory lan-
guage used in the indictment as a whole,
is sufficient to allege the requisite cri-

minal intent. See United States v.

Illinois Central Railroad Co., 303 U.S. 239,

242 (1938) ("In statutes denouncing offenses
involving turpitude, ‘wilfully’ is generally
used to mean with evil purpose, criminal
intent or the like") .?° The language in
Counts 7 and 8, though less complete, ade- |
quately informs the defendants of the
charges against which they must defend. See

35

Hamling v. United States, 418 U.S. 87, 117

(1974).
The judgment is reversed and the cause
remanded for further proceedings consistent

with this opinion.

FOOTNOTES

1. 18 U.S.C. § 844(i) provides that:

Whoever maliciously damages or
destroys, or attempts to damage or
destroy, by means of an explosive,
any building, vehicle, or other real
or personal property used in inter-
state or foreign commerce or in any
activity affecting interstate or
foreign commerce shall be imprisoned
e e « OF fined... or both.

2. 18 U.S.C. § 1952 provides in pertinent
part that:

(a) Whoever travels in inter-
state or foreign commerce, or uses any
facility in interstate or foreign com-
merce, including the mail, with
intent to . . . (2) commit any crime
of violence to further any unlawful
activity; or (3) otherwise promote,
manage establish, carry on, or facili-
tate the promotion, management,

36

establishment, or carrying on, of any
unlawful activity, and thereafter
performs or attempts to perform any of
the acts specified in subparagraphs (1),
(2), and (3), shall be fined... or
imprisoned . . . or both.

(b) As used in this section “un-
lawful activity” means (1) any business
enterprise involving gambling, liquor
on which the Federal excise tax has not
been paid, narcotics, or prostitution
offenses in violation of the laws of the
State in which they are committed or of
the United States, or (2) extortion,
bribery, or arson in violation of the
laws of the State in which committed or
of the United States.

Section 50l(c) provides that:

(c) Any person who embezzles or
converts to his own use, or the use of
another, any of the moneys, funds,
securities, property, or other assets
of a labor organization of which he is
an officer, or by which he is employed,
directly or indirectly, shall be fined
- « « OF imprisoned .. . or both.

Section 1961(d) provides:
It shall be unlawful for any person
to conspire to violate any of the pro-

visions of subsections (a), (b), or
(c) of this section.

Section 1962(c) provides:

It shall be unlawful for any person
employed by or associated with any
enterprise engaged in, or the activities

37

of which affect, interstate or foreign
commerce, to conduct or participate,
directly or indirectly, in the conduct
of such enterpr‘se's affairs through a
pattern of racketwering activity ....

An “enterprise” as defined by § 1961(4) in-
cludes:

any individual, partnership, corpora-
tion, association, or other legal
entity, and any union or group of in-
dividuals associated in fact although
not a legal entity.

A “pattern of racketeering activity" as
defined by § 1961(5):

requires at least two acts of racket-
eering activity, one of which oc-
curred after the effective date of
this chapter and the last of which
occurred within ten years (excluding
any period of imprisonment) after

the commission of a prior act of
racketeering activity.

"Racketeering activity" as defined by
§ 1961(1) includes:

(A) any act or threat involving mur-
der, kidnaping, gambling, arson,
robbery, bribery, extortion, or
dealing in narcotic or other
dangerous drugs, which is charge-
able under State law and punishable
by imprisonment for more than one
year; (B) any act which is indict-

38

5.

able under any of the following pro-
visions of title 18, United States
Code: . . . Section 1952 (relating to
racketeering) . . . and (C) any act
which is indictable under title 29,
United States Code, .. . section
50l(c) (relating to embezzlement from
union funds).

All defendants are charged with vio-

lating the Travel Act, RICO and 28 U.S.C.

§ 50l(c). Only defendants Fry and Salgado

are named in the explosives counts.

6.

18 U.S.C. § 1951 provides in pertinent

part:

(a) Whoever in any way or degree
obstructs, delays, or affects commerce
or the movement of any article or
commodity in commerce, by robbery or
extortion or attempts or conspires so
to do, or commits or threatens physi-
cal violence to any person or property
in furtherance of a plan or purpose to
do anything in violation of this sec-
tion shall be fined . .. or impri-
soned .. . or both.

(b) As used in this section--

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

39

7. Justice Douglas, writing for the four
dissenters in Enmons, contended that by
repealing the wage exception in the Anti-
Racketeering Act and by rejecting similar
amendments, Congress intended to include
within the ambit of the Hobbs Act the use
of threats and violence to achieve legi-
timate, as well as illegitimate, labor
objectives. 410 U.S. at 413-19.

8. We are unaware of any other case in
which a criminal defendant has attempted

to assert United States v. Enmons as a

defense to a prosecution under a statute
other than the Hobbs Act. Cf. United

States v. Parker, 586 F.2d 422 (5th Cir.

1978), cert. denied, 441 U.S. 962 (1979)

(affirming without discussion of Enmons
a conviction under § 844(i) on facts
virtually identical to the case sub

judice); United States v. Love, 482 F.

2d 213 (5th Cir.), cert. denied, 414

40

U.S. 1026 (1973) (same); Langel v.

United States, 451 F.2d 957 (8th Cir.

1971) (affirming without discussion of
Enmons a conviction of union members for
possessing a prohibited firearm--a bomb
--in violation of 26 U.S.C. § 5861(d) in
connection with the destruction of an
employer's truck during a bona fide labor
dispute).
9. The Travel Act includes within its de-
finition of unlawful activity “extortion .
- « in violation of the laws of the State
in which committed or of the United
States." 18 U.S.C. § 1952(b)(2). Extor-
tion chargeable under state law is also
included in the definition of "racketeer-
ing activity" provided by RICO. In light
of the emphasis in Enmons on the special
characteristics of the crime of extortion,
see discussion infra, its holding deli-
miting the scope of the Hobbs Act arguably
41

should be extended to similarly limit the
scope of the RICO and Travel Act extortion
provisions. ° That issue, however, is not
before us at this time.

10. Thus, while the Travel Act was pri-
marily directed at suppressing the unlawful
local activities that provide organized

crime with its source of funds, see Legis-

lation Relating to Organized Crime: Hear-

ings on H.R. 468, H.R. 1246, etc., before

Subcommittee No. 5 of the House Committee

on the Judiciary, 87th Cong., lst Sess.

(1961); The Attorney General's Program to

Curb Organized Crime and Racketeering:

Hearings on S.1653, S.1654, etc., before

the Senate Committee on the Judiciary,

87th Cong., lst Sess. (1961), its reach is
not limited to the activities of organized

crime. See, e.g., United States v.

Rosselli, 432 F.2d 879, 884-85 (9th Cir.

1970), cert. denied, 401 U.S. 924 (1971).

42

Rather, the Act forbids persons from
traveling interstate or using the facili-
ties of interstate commerce to commit any
of the offenses enumerated in § 1952(b).

See United States v. Nardello, 393 U.S.

286, 293 (1969). As this court observed in

United States v. Roselli, supra, in re-

jecting the defendants' argument that their
scheme to cheat at gin rummy was not within
the reach of § 1952(b) (1),

The words of Section 1952 are gene-
ral; they contain no restriction to
particular persons or to particular
kinds of gambling, liquor, narcotics
and prostitution offenses ....
[A]s we read the legislative record,
Congress meant exactly what the lan-
guage of Section 1952 states--it de-
liberately chose to make the statute
applicable generally, and without
crippling restrictions, to any per-
son engaged in any kind of illicit
business enterprise in one of the
four fields of activity specified in
the statute, which experience showed
to be those in which organized
racketeers commonly engaged.

Id. at 885.

See also United States v. Barnes, 383 F.2d

43

287, 289 n.2 (6th Cir. 1967), cert. denied,

389 U.S. 1040 (1968); United States v.

Vespe, 389 F.Supp. 1359, 1368-69 (D.Del.),

aff'd sub nom. United States v. Shaffer,

520 F.2d 1369 (3d Cir. 1975).

The district court's conclusion that
RICO does not apply because the “defendants
have not engaged in any activities which
constitute ‘labor racketeering'" must be
rejected for similar reasons. Although
never clearly articulated, the defendants’
theory appears to be that since the primary
purpose of RICO is to rid legitimate orga-
nizations of the influence of organized
crime, and since the defendants’ conduct
was not alleged to be in aid of organized
crime nor part of a “racketeering scheme"
as that term is most commonly used, RICO
does not reach the defendants’ conduct.

This circuit has squarely held, how-
ever, that RICO does not require that the

44

defendants be engaged in "organized crime."

United States v. Campanale, 518 F.2d 352,

363 (9th Cir. 1975), cert. denied, 423 U.S.

1050 (1976). See also United States v.

Grande, 620 F.2d 1026, 1030 (4th Cir.),
cert. denied, 101 S.Ct. 98 (1980); United

States v. Aleman, 609 F.2d 298, 303-04

(7th Cir. 1979), cert. denied, 445 U.S.

946 (1980); United States v. Mandel, 415

F.Supp. 997, 1018-20 (D.Md. 1976);

McCellan, The Organized Crime Act (S.30)

or Its Critics: Which Threatens Civil

Liberties?, 46 Notre Dame Law. 55, 142-44

(1970). While Congress, in enacting RICO,
focused on the type of activities commonly
engaged in by organized crime, § 1962 of
the Act was written to "make[s] unlawful
such activities no matter who engages

therein.” United States v. Campanale, 518

F.2d at 363. Nor did Congress intend to
remove from the coverage of the Act behavi-

45

or that would otherwise constitute "rac-
keteering activity,” as defined in § 1961
(1), solely because it was not engaged in

for personal profit. ‘See, e.g., United

States v. Field, 432 F.Supp. 55, 57-58 (S.

D.N.Y. 1977), aff'd, 578 F.2d 1371 (2d
Cir. 1978).

Moreover, to create an exception for
conduct that is not part of a "“racketeer-
ing scheme," as that term may be commonly
used, would create substantial uncertainty
in the law and raise significant questions
as to the constitutionality of the Act.

In United States v. Culbert, 435 U.S. 371 °

(1978), for example, the defendant argued
that proof of "racketeering" was an element
of a Hobbs Act violation. While acknow-
ledging that the Hobbs Act was aimed pri-
marily at racketeering activities, the Court
rejected the defendant's argument, empha-
sizing that the Act was written in broad

46

language and the legislative history re-
vealed no intention to limit the statutory
language. In addition, the Court noted that
due process requires that a statute define
the elements of a crime with sufficient
clarity that “persons of common intelligence
{will not] necessarily guess as to its mean-
ing and differ as to its application." Id

at 374, quoting Connally v. General Con-

struction Co., 269 U.S. 385, 391 (1926).

Thus, the Court cautioned that serious due
process problems would be raised if a gene-
ral undefined term like "racketeering" was
read into the statute. Id. at 374.

Like the Second Circuit, we are not
unmindful that "the potentially broad reach
of RICO poses a danger of abuse where the
prosecutor attempts to apply the statute to
situations for which it was not primarily

intended." United States v. Weisman, 624

F.2d 1118, 1123 (2d Cir.), cert. denied,

47

101 S.Ct. 209 (1980), quoting United

States v. Huber, 603 F.2d 387, 395-96

(2nd Cir. 1979). We, too, "caution against
undue prosecutorial zeal in invoking RICO.”
Id. The defendants in this case, however,
would have us substitute their own defini-
tion of racketeering for the one provided
by § 1961 of the Act. This we cannot do.
ll. The district court quotes Rewis v.

United States, 401 U.S. 808, 812 (1971),

for the proposition that an "expansive in-
terpretation of the Travel Act would alter
sensitive federal-state relationships,
[and] could over-extend federal police
resources ... ." In Rewis, the Court
held that conducting a gambling establish-
ment frequented by out-of-state bettors
does not, without more, violate the Travel

Act. In the recent case of Perrin v.

United States, 444 U.S. 37 (1979), how-

ever, the Court rejected a claim that the

48

concerns for federalism expressed in
Rewis require a narrow interpretation of
the Travel Act. The issue in Perrin was
whether the Travel Act proscribed com-
mercial bribery that violated state law.
In holding that it did, the Court noted
that:

So long as the requisite interstate
nexus is present, the statute re-
flects a clear and deliberate intent
on the part of Congress to alter the
federal-state balance in order to
reinforce state law enforcement.

In defining an ‘unlawful activity, '
Congress has clearly stated its in-
tention to include violations of
state as well as federal bribery
law. Until statutes such as the
Travel Act contravene some provision
of the Constitution, the choice is
for Congress, not the courts.

Id. at 318.

12. The district court below cited a
number of circuit court decisions in
support of an across-the-board exemption
derived from Enmons. We find these cases

inapposite. United States v. Quinn, 514

49

F.2d 1250 (5th Cir. 1975), cert. denied,

424 U.S. 955 (1976), affirmed a conviction
under the Hobbs Act for receiving payoffs
from an employer in return for calling off
a picket line at the employer's store. The
court noted that although a bona fide labor
dispute existed and the defendant was
authorized to represent the employees, the
payment was received in violation of § 302
of the Taft-Hartley Act and therefore could

not be in pursuit of legitimate labor objec-

tives. There was no discussion in Quinn of
the applicability of Enmons to any federal
statute other than the Hobbs Act

United States v. Cerilli, 603 F.2d

415 (3d Cir. 1979), cert. denied, 444 U.S.

1043 (1980), affirmed a conviction under

the Hobbs Act for extorting political con-

tributions. The court noted that the

Enmons decision was the result of the

unique legislative history of the Hobbs Act
50

and must be applied cautiously outside the
labor context. Id. at 419-20. There is
nothing in the Third Circuit's opinion to
suggest that Enmons creates a general ex-
emption from federal criminal law for
violence in furtherance of legitimate labor
goals. Similarly, the other cases cited
by the district court provide no support
for its holding that "absent specific

authorization from Congress, United States

v. Enmons precludes federal criminal pro-

secution for violent activity which occurs
during the course of a legitimate labor

dispute." Thordarson, 487 F.Supp. at 995.

13. State tort law may also be available
to award compensation for damages result-
ing from violent conduct during the course

of a strike. See Automobile Workers v.

Russell, 356 U.S. 634 (1958); San Diego

Unions v. Garman, 359 U.S. 236, 247-49

(1959).
51

14. Section 241 provides in pertinent part:
If two or more persons conspire to in-
jure, oppress, threaten, or intimidate
any citizen in the free exercise or
enjoyment of any right or privilege
secured to him by the Constitution or
laws of the United States, or because
of his having so exercised the same .

- « they shall be fined not more than
$10,000 or imprisoned not more than 10
years.

15. For the text of § 50l(c), see footnote

3, supra.

16. In considering whether the indictment

alleged these elements, the district court

found that "[i]t is unlikely that there was

a fraudulent intent to deprive the union of

its funds"; that the expenditures were auth-

orized under the unions’ constitutions; that
there was concededly "no evidence that union
funds were used for the defendants’ personal
benefit"; and, following Enmons, that
violent and illegal means for legitimate
union ends "are for the union's benefit."

United States v. Thordarson, 487 F.Supp.

52

991, 998 (C.D. Cal. 1980).

At issue at this stage of the liti-
gation, of course, is the sufficiency of
the indictment, not the sufficiency of the
government's evidence. For example, the
government contends that under the inter-
national union's constitution, the expendi-
tures were not authorized.

17. Although the district court found the
Boyle decision "troubling", it sought to
distinguish Boyle on its facts. Boyle, the
district court found, involved an expendi-
ture of union funds which was prohibited by
criminal statute. In the present case, the

specific expenditure--the reimbursement for

expenses--was not prohibited by statute,

only the eventual use of the money to de-
stroy trucks was illegal, and so the dis-
trict court held that Boyle did not apply.

Thordarson, 487 F.Supp. at 997-98. We,

however, find Boyle indistinguishable from

53

the present case on its facts. The §501l(c)
violation in Boyle involved a transfer from
the United Mine Workers' (UMW) treasury to
the UMW's legislative and lobbying arm.
While the transfer was to facilitate the
making of unlawful contributions, the
transfer itself was not unlawful. See id.
at 758-59 and n.8.
18. The holding in Boyle converts §501(c)
from a “larceny-type” statute tc a statute
criminalizing union expenditures for cer-
tain purposes. Such a reading would make
criminal certain breaches of fiduciary
duty despite the absence of a specific in-
tent to deprive the union of its funds.
We find no support in the legislative his-
tory for such a reading of the statute.

First, the precursors to §§ 501(a)
and 501(c) were added to the Act at dif-
ferent times. These precursors are first
found in S. 1555, 86th Cong., lst Sess.

54

(1959). Section 109(a) of S. 1555. as
reported from the Ccmmittee on Labor and
Public Welfare on April 14, 1959, is almost
identical to § 50l(c). See 105 CONG. REC.
5980 (1959). There was no federal fiduci-
ary obligation in the bill at that time.
See S. REP. NO. 187, 86th Cong., lst Sess.

(1959), reprinted in [1959] U.S. CONG. &

AD. NEWS, 2318, 2376-77 (minority views).
A fiduciary obligation was added to the bill
by an amendment proposed by Senator
McClellan, 105 CONG. REC. 6525, on April
23, 1959, as § 509, and later renumbered
§ 609. 105 CONG. REC. 6523,28 (1959). The
subsequent House bill, H.R. 8342, included
§ 109(a) of S. 1555 almost verbatim as
§ 50l(c), but strengthenec the fiduciary
obligation by replacing § 609 of S. 1555
with § 50l(a). See 105 CONG. REC. 15549-
50 (1959) (remarks of Rep. Bolling); Id.
at 15888 (text of H.R. 8342).

55

Second, the legislative history
states that § 501(b), and not § 50l(c),
was meant to be the enforcement provision
for § 50l(a). The discussion of fiduciary
duties in the analysis of H.R. 8342 dis-
cusses § 501(b) as the enforcement pro-
vision for § 50l(a) and fails to mention
§ 501(c). See H.R. REP. NO. 741, 86th

Cong., lst Sess. (1959) reprinted in

[1959] U.S. CODE CONG. & AD. NEWS 2424,
2479-80 (Supplementary views). The Senate
Republicans’ remarks on the conference
bill, reported by Senator Goldwater, state
that the purpose of § 50l(c) is to make
embezzlement and other thefts of union
funds federal crimes as well as state
crimes, while the purpose of § 50l1(b) is
to enforce the fiduciary duty of union
officials. See 105 CONG. REC. 19766 (1959)
remarks of Sen. Goldwater).

19. The issue on appeal in Andreen was

56

the sufficiency of the evidence for a con-
viction under 18 U.S.C. § 664. The court
treated the case as though it were a § 501
(c) conviction because § 664, which relates
to employee welfare and pension plans, uses
language that parallels § 50l(c).

20. The key language in 29 U.S.C. § 501l(c)
is “embezzles, steals, or unlawfully and
willfully abstracts or converts to his own
use, or to the use of another." The com-
parable language in 18 U.S.C. § 641 is
"“embezzles, steals, purloins, or knowingly
converts to his use or the use of another";
the language in 18 U.S.C. § 656 and § 657
is “embezzles, abstracts, purloins, or
wilfully misapplies."

21. The Senate Minority Report on S. 1555
states that § 109(a), the precursor to

§ 50l(c), does nothing more than make the
state crimes of embezzlement and theft
federal crimes for union officials, and

57

does not give union members any additi-
onal protection. S. REP. NO. 187, 86th

Cong., lst Sess. (1959), reprinted in U.S.

CODE CONG. & AD. NEWS 2318, 2401 (Minority
views, Appendix B). Senator Goldwater,
commenting on this section, renumbered
209(a), stated that it merely created
"concurrent jurisdiction" and was "like
gilding the lily." 105 CONG. REC. 10099
(remarks of Sen. Goldwater). We have found
nothing in the legislative history to con-

tradict these remarks. See also note 18

supra.
22. The elements of embezzlement, when

codified in a statute such as 18 U.S.C.
§ 641, are:

(1) a trust or fiduciary re-
lationship, (2) that the property
claimed embezzled is embraced within
the meaning of the statute, (3) that
it came into the possession or care
of accused by virtue of his employ-
ment, (4) it is property of another,
(5) that his dealing therewith con-
stituted a fraudulent conversion or

58

appropriation of same to his own
use, and (6) such was the intent to
deprive the owner thereof.

United States v. Powell, 294 F.Supp. 1353,

1355 (E.D. Va. 1968), aff'd, 413 F.2d 1037
(4th Cir. 1969).

The elements of common law larceny are
(1) a wrongful taking and carrying away
(asportation), (2) of the personal property
of another, (3) with the fraudulent intent
to deprive the owner of his property with-

out his consent. United States v. Barlow,

470 F.2d 1245, 1251 (D.C. Cir. 1972); see

also Morissette v. United States, 342 U.S.

246, 267 n.28 (1952). Larceny is usually
incorporated in a federal theft statute in
a broadened form by means of the words
"steal" or “purloin": "Stealing, having
no common law definition to restrict its
meaning as an offense, is commonly used to
denote any dishonest transaction whereby
one person obtains that which rightfully
59

belongs to another, and deprives the

owner of the rights and benefits of owner-
ship, but may or may not involve the ele-
ment of stealth usually attributed to the

word purloin.” Morissette, 342 U.S. at 268

n.28, quoting Crabb v. Zerbst, 99 F.2d 562,

565 (5th Cir. 1938). Conversion is even
broader than stealing, since it can be ac-
complished without a wrongful taking (where
the converter's initial possession was law-
ful) and without any intent to keep posses-
sion, so long as the property is misused

or abused. Morissette, 342 U.S. at 271-72.

Thus the addition of elements of lack
of authorization or lack of union benefit
is directly counter to the thrust of the
federal theft statutes to eliminate the
technicalities of the common law offenses.

See generally Id. at 263-73.

23. Although Morissette does not expli-
citly state that conversion is an element

60

of § 641, that is the effect of Moris-

sette's reasoning. Morissette states that

"[plrobably every stealing is a conversion,"
342 U.S. at 271, and then shows that a
stealing is a conversion with the added
elements of a wrongful taking and an intent
to retain possession. Id. at 272. Embez-
zlement and purloining, the other two
offenses combined to make § 641, are also
conversions with other elements added: to
purloin is to steal with the element of
stealth, id. at 268 n.28, and conversion is
an established element of embezzlement.

See, e.g., United States v. Powell, supra,

294 F.Supp. at 1355. It is thus clear from

Morissette that any violation of § 641 must

involve a conversion.

24. We recognize that there appears to be
considerable support in other circuits for
the defendant's position that there are
additional essential elements to § 501(c)--

61

although we note that those circuits fail
to agree on what the additional elements
are. The Sixth Circuit has adopted the
view that § 501(c) does not require a show-
ing of lack of authorization or lack of
union benefit, but does require a showing
of fraudulent intent and a lack of good
faith belief in authorization and union

benefit. United States v. Bane, 583 F.2d

832 (6th Cir. 1978), cert. denied, 439

U.S. 1127 (1979). The Fifth Circuit has
held that the elements of § 50l(c) include
fraudulent intent and either actual lack
of authorization or lack of a good faith

belief in union benefit. United States v.

Dixon, 609 F.2d 827 (5th Cir. 1980); see

also United States v. Nell, 526 F.2d 1223

(5th Cir. 1976) (fraudulent intent and lack
of authorization sufficient). But see

United States v. Durnin, 632 F.2d 1297,

1300 & n.5 (5th Cir. 1980) (suggesting that
62

authorization is irrelevant if fraudu-
lent intent is “thoroughly established").
The Eighth Circuit agrees that fraudulent
intent and lack of authorization are suffi-
cient, but has reserved the issue as to
what elements in addition to fraudulent
intent are required if the expenditure is

authorized. United States v. Goad, 490 F.

2d 1158 (8th Cir.), cert. denied, 417 U.S.

945 (1974). Finally, the Second Circuit
has held that the elements of § 50l(c) are
fraudulent intent and either lack of auth-
orization (or ratification) or lack of good
faith belief in union benefit. United

States v. Santiago, 528 F.2d 1130, 1133-34

(2nd Cir.), cert. denied, 425 U.S. 972

(1976). But see United States v. Silverman,

430 F.2d 106, 117-18; 126-27 (2nd Cir.),
modified on other grounds, 439 F.2d 1198

(1970), cert. denied, 402 U.S. 953 (1971)

(Judge Moore suggests lack of actual union

63

benefit, and not a lack of belief in union
benefit, is required if authorization is
present; Judges Friendly and Hays agree
arguendo).

Like Judge Larson, we are “not certain
why courts began to add new elements to
§ 50l1(c) crimes," Marolda, 615 F.2d at 873,
but we suspect that the procedural posture
of each case has had an effect. Ours ap-
pears to be the first case involving a
government appeal from the dismissal of the
indictment for failure to allege essential
elements of the offense. Preceding § 501
(c) cases have involved post-conviction
appeals when issues relating to lack of
authorization or lack of union benefit
turned on the circumstances of the particu-
lar case, such as the jury instruction, or
the evidence actually adduced a’* trial.

See, e.g., United States v. Dixon, 609 F.

2a 827 (5th Cir. 1980); United States v.

64

Nell, 526 F.2d 1223 (5th Cir. 1976);

United States v. Ottley, 509 F.2d 667
(2d Cir. 1975); United States v. Bane,

supra; United States v. Goad, 490 F.2d

1158 (8th Cir.), cert. denied, 417 U.S.

945 (1974).

For example, United States v. Silver-

man, supra, considered as the seminal case

on the question of the elements of § 501

(c), see, e.g., Goad, supra, and Ottley,

supra, involved challenges both to the in-
dictment and to the sufficiency of the

evidence. The indictment in Silverman,

like the indictment in the present case,
merely tracked the language of § 50l(c) and
then gave the dates and amounts involved in
the transaction underlying each count of

the indictment. Silverman, 430 F.2d at

109-110. Neither lack of authorization nor

lack of union benefit was specifically al-

leged. The indictment, challenged on other
65

grounds, was upheld. Judge Friendly,
however, writing for the majority, held
that the evidence concerning an expenditure
of union funds for a local political cam-
paign was insufficient to sustain a § 501
(c) conviction where the union had autho-
rized the expenditure and the expenditure

benefited the union. Silverman, 430 F.2d

at 126-28. The discussion of authorization
is confined strictly to the issue of the
sufficiency of the evidence.

25. The district court, in discussing the
fraudulent intent issue, stated that "[i]t
is unlikely that there was a fraudulent
intent to deprive the union of its funds
because reimbursement for the expenses in-
curred in labor organizing, and particular-
ly strike-oriented activities, are pro-
bably not for acts ‘that the union would
not have wanted .. . done.'" United

States v. Thordarson, supra, 487 F.Supp. at

66

998. This suggests that the district court
may have dismissed the indictment not be-
cause the indictment failed to allege
fraudulent intent, but because the court
doubted that fraudulent intent could be
proved at trial. If this was the district
court's reasoning, it was in error. An
indictment is sufficient if it adequately
alleges the elements of the offense and

fairly informs the defendant. See Hamling

v. United States, supra, 418 U.S. at 117

and United States v. Bailey, supra, 444

U.S. at 414. The strength of the govern-
ment's case is not at issue. However
difficult it may be to prove fraudulent in-
tent on the facts of this case, the govern-
ment is entitled to an opportunity to pre-
sent its proof.

The government admitted at oral argu-
ment that unless this circuit follows the

rule in United States v. Boyle, supra

67

(fraudulent intent is presumed where the
union funds are spent for an unlawful pur-
pose), the government has little hope of
establishing criminal intent in this case.
We have declined to follow Boyle. We do
not, however, interpret the government's
statement as a concession that we can ap-
propriately reverse the district court only
if we decide to follow Boyle. The govern-
ment's underlying contention is that the
indictment sufficiently alleged all of the
elements of § 50l(c). We hold that the
indictment is indeed sufficient. If the
government concludes that it does not have
adequate proof of fraudulent intent without
use of the Boyle doctrine, it is free to
use its prosecutorial discretion not to

proceed on the § 501(c) counts.

68

PREGERSON, Circuit Judge (concurring
and dissenting): Because section 50l(c) of
the Landrum-Griffin Act is expressly de-
signed to regulate the conduct of union of-
ficials in the use of union funds, I agree
that the district court erred in dismissing
those counts of the indictment that charged
violations of section 50l(c), and join in
Parts I and III of the court's opinion. I
cannot agree, however, with the majority's

view of the scope of United States v.

Enmons, 410 U.S. 396 (1973). I believe that
the rationale animating Enmons precludes
the application of RICO, the Travel Act, or
18 U.S.C. § 844(i) to violence incidental to
a legitimate labor dispute. Accordingly, I
dissent from Part II of the majority's
opinion.

The majority distinguishes Enmons from
the case at bar by reading it as based on
the specific language and legislative his-

69

tory of the Hobbs Act. I agree with the
district court, however, that "it is inac-
curate to so narrowly limit the case."

United States v. Thordarson, 487 F.Supp.

991, 992-93 (C.D. Cal. 1980). The Court in
Enmons explicitly stated that even had the
language and history of the Hobbs Act not
precluded its application to violence dur-
ing legitimate labor disputes, policy
reasons would make such application impro-
per. 410 U.S. at 411. The Court voiced
its reluctance, absent unmistakably com-
pelling statutory language, to conclude
"that Congress intended to put the Federal
Government in the business of policing the
orderly conduct of strikes." Id. This
policy is as appropriate here as in Enmons
and counsels against extending RICO, the
Travel Act, or section 844(i) to “the use of
force to achieve legitimate collective-
bargaining demand." 410 U.S. at 408.

70

The majority neglects this policy
consideration. The only policy argument
stated in Enmons that the majority acknow-
ledges is that "the special characteristics
of the crime of extortion” made the Court
fear that applying the Hobbs Act to labor
disputes risked transforming minor picket
line violence into federal crimes. The
majority scarcely recognizes that applying
the Travel Act or RICO to labor disputes
creates the same risk, since extortion is
one of the “unlawful activities” to which
the Travel Act applies and is included in
RICO's definition of "racketeering activi-
ty."

More serious, however, is the majori-
ty's failure to appreciate that the Enmons
decision rests not solely on the interpre-
tation of the particular statute involved
there, but on a broad, historically justi-
fied concern that the federal government

71

not intrude into the business of policing
the orderly conduct of legitimate labor dis-
putes. Punishing lawlessness perpetrated
during labor disputes has historically been
and should continue to be the province of
the States and their law enforcement au-
thorities. I therefore respectfully dis-

sent from Part II of the court's opinion.

FOOTNOTE

1. The Travel Act penalizes anyone who
travels in interstate commerce with intent
to carry on an “unlawful activity. 18 U.
S.C. § 1952(a) (3). And it includes extor-
tion in its definition of "unlawful acti-
vity."” 18 U.S.C. § 1952(b). RICO pro-
hibits “racketeering activity” in various
contexts, 18 U.S.C. § 1962, and extortion
chargeable under state law is explicitly
included in the definition of such activity.
18 U.S.C. § 1961(1) (A).

72

The majority does acknowledje this
problem but suggests that Enmons "argu-
ably should be extended to . .. limit the
scope of the RICO and Travel Act extortion
provisions." Majority Opinion, note 9.
This concession makes it clear that ,Enmons
cannot be read as based solely on the

legislative history of the Hobbs Act.

73

ean hs Wee

fees

APPENDIX B

FILED

March 17, 1980
Clerk, U.S.
District Court
Central District
of California

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
Vv. )
)
STEN THORDARSON, )
MARTIN FRY, )
CRAIG DUNBAR, )
MARTIN SALGADO, and )
CHARLES WISE, )
)
)
)

Defendants.

No. CR 79-946-RMT

OPINION

I

FACTUAL BACKGROUND

In 1978, Teamsters Local 186 and 389

("Local") attempted to organize employees

74

of Redman Moving and Storage Company
("Redman") located in Thousand Oaks, Cali-
fornia. After Leing elected as the bar-
gaining agent for Redman employees in

July of 1978, Local 186 ordered a strike
against Redman. Since Local 186 did not,
by itself, have the requisite manpower to
conduct the strike, it obtained the assist-
ance of Local 389. Between July and
December of 1978, Redman's truck fleet was
the object of vandalism, including tire
Slashings and truck burnings.

In November of 1979, after a fourteen-
month investigation, Sten Thordarson, Craig
Dunbar and Charles Wise, secretary-
treasurer, business agent, and vice-presi-
dent, respectively, of Local 389, and
Martin Fry and Martin Salgado, secretary-
treasurer and trustee, respectively, of

Local 186, were indicted on ten counts for

75

violations of 18 U.S.C. §§ 1952, 844(i),
and 1962(d) and 29 U.S.C. § 50l(c) in
connection with the burning of two Redman
trucks in Arizona and Connecticut. The
defendants have moved to dismiss the

entire indictment.

II.

COUNTS 4 AND 5 OF THE

INDICTMENT, BROUGHT UNDER

18 U.S.C. § 1952, ARE DISMISSED.

Defendants move to dismiss Counts 4
and 5 of the indictment charging them

with violations of 18 U.S.C. § 1952,/

rely-
ing on the Supreme Court's ruling in

' United States v. Enmons, 410 U. S. 396

(1973). The defendants in Enmons were
charged with using threats of force and
violence during a strike action to obtain
higher wages and benefits for union

76

members, in violation of the Hobbs Act,

18 U.S.C. § 1951.7

The defendants alleg-
edly blew up a transformer substation,
fired high powered rifles at three com-
pany transformers, and drained oil from a
company transformer. The court held that
the alleged acts did not amount to a
“wrongful taking" necessary for a § 1951
extortion violation because violence was
used to achieve legitimate union objec-
tives, such as higher wages in return for
genuine services which the employer seeks.
Enmons, 410 U.S. at 400.

The governmer*'s major attempt to
distinguish Enmons from the case at bar
is its insistence upon limiting that case
to merely an interpretation of the term
"extortion" in § 1951. Because § 1952
does not contain the “wrongful taking"
element of § 1951, it is argued, Enmons

77

is inapplicable to a § 1952 prosecution.
However, after a careful reading of
Enmons and its progeny, it is inaccurate
to so narrowly limit the case. The ruling
in Enmons was based upon the underlying
purpose of § 1951 which was to deal with,

inter alia, labor racketeering activities.

In reviewing the language and legis-
lative history of the Hobbs Act, the
court found no congressional intent to
extend federal criminal jurisdiction to
include violent acts done in pursuit of
legitimate union objectives or to put the
federal government in the business of
policing the orderly conduct of strikes.
Enmons, 410 U.S. at 408-12. In fact,

the issue upon which certiorari was

granted in Enmons, was not whether vio-
lent activity during strikes may consti-~
tute extortion under § 1951, but whether

78

§ 1951 “proscribes violence during a law-
ful strike for the purpose of inducing an
employer's agreement to legitimate collec-
tive bargaining demands." Enmons, 410
U.S. at 399. The court concluded that

the state court was the proper forum for
such a prosecution.”

The court further concluded that even
if the language and history of the Hobbs
Act were less clear, a § 1951 prosecution
would have been improper for two related
reasons. First, criminal statutes must be
strictly construed, with any ambiguity
being resolved in favor of lenity. Rewis

v. United States, 401 U.S. 808, 812 (1971).

Second, unless Congress clearly conveys
its purpose, the court will not assume "a
significant change in the sensitive rela-
tion between federal and state criminal

jurisdiction. United States v. Bass, 404

79

U.S. 336, 349 (1971)." Enmons, 410 U.S.
at 411-412.

Clearly, a labor official, merely by
virtue of his position, is not exempt
from all federal prosecution. Labor
officials have been federally prosecuted
for abusing their power to order picket-
ing or strikes for the purpose of extract-
ing money for their personal benefit.

United States v. Daley, 564 F.2d 645 (2d

Cir. 1977), cert. denied, 435 U.S. 933

(1978); United States v. Quinn, 514 F.2d

1250 (5th Cir. 1975), cert. denied, 424

U.S. 955 (1976). Federal criminal prose-
cution is also not precluded where vio-
lence is used in an attempt to force an
employer to pay for work which the worker
had no intention of performing. United

States v. Kemble, 198 F.2d 889 (3d Cir.),

cert. denied, 344 U.S. 843 (1952). Such

80

labor racketeering is precisely the acti-
vity which § 1951 was intended to curb.
However, § 1951 is inapplicable to “vio-
lence employed during the course of a
valid, bona fide collective bargaining
negotiation for better working hours,

wages and conditions." United States v.

Caldes, 457 F.2d 74, 77 (9th Cir. 1972).
Rather than limiting the Enmons ruling

to extortion cases, subsequent courts have

consistently recognized that the case was

explicitly tied to the labor context.

Short of express congressional intent,

"the effect of Enmons was to remove from

the reach of federal criminal law the use

of coercive tactics to obtain increased

wages . . . when the payment is gained in

furtherance of legitimate objectives.”

United States v. Quinn, 514 F.2d 1250,

1257 (5th Cir. 1975), cert. denied, 424

U.S. 955 (1976). See also, United States

81

v. Cerilli, 603 F.2d 415, 419-20 (3d Cir.

1979). Thus, if Enmons is to be narrowly
construed at all, it is only done so
within the context of legitimate labor

activity. United States v. Culbert, 435

U.S. 371, 376-78 (1978); United States v.

Warledo, 557 F.2d 721 (10th Cir. 1977);
United States v. Jacobs, 543 F.2d 18

(7th Cir. 1976), cert. denied, 431 U.S.

929 (1977).

The courts have similarly delimited
the reach of the Travel Act, 18 U.S.C.
§ 1952. Several courts have stated that
the primary purposes of § 1952 are to
attack organized crime and to aid local
authorities in combatting it. United

States v. Polizzi, 500 F.2d 856 (9th

Cir. 1974), cert. denied, 419 U.S. 1120

(1975); United States v. Peskin, 527 F.2d

71 (7th Cir. 1975), cert. denied, 429 U.S.

818 (1976). An extensive analysis of the

82

legislative history of § 1952 is found in

United States v. Roselli, 432 F.2d 879

(9th Cir. 1970), cert. denied, 401 U.S.

924 (1971). The Ninth Circuit stated
that, “it is quite clear that in enacting
§ 1952, Congress was not concerned with
regulating interstate travel or the use

of interstate facilities, but rather with
directly suppressing unlawful local acti-
vities from which organized crime drew its
sustenance." Roselli, 432 F.2d at 891;

United States v. Colacurcio, 499 F.2d

1401, 1406 (9th Cir. 1974).

The Supreme Court in Rewis v. United

States, 401 U.S. 808 (1971), stated that:

The legislative history of the
[Travel] Act is limited, but
does reveal that § 1952 was
aimed primarily at organized
crime and, more specifically,
at persons engaged in one
state while operating or man-
aging illegal activities in
another. . . [A]n expansive
interpretation of the Travel

83

Act would alter sensitive
federal-state relationships,
could overextend federal police
resources and would transform
relatively minor state offenses
into federal felonies.

Rewis, 401 U.S. at 812.

Rewis@ was followed in United States

v. Brecht, 540 F.2d 45 (2d Cir. 1976),

cert. denied, 429 U.S. 1123 (1977), in

which § 1952 was not extended to acts of
commercial bribery, even though bribery
was a § 1952 offense. "The inquiry into
whether the state violation committed by
the defendant comes within the scope of
the Travel Act depends not upon the
nomenclature used but upon the nature of
the violations." Brecht, 540 F.2d at 50.
The court observed that § 1952 was prima-
rily intended to counter methods used by

organized crime to generate income, such

as “shakedowns” or “loan-sharking." United

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

84

Citing Enmons as to the rule of lenity, the
Brecht court refused to consider commercial
bribery within the ambit of § 1952.

The Enmons rationale is as appropriate
to a § 1952 prosecution as it is toa
§ 1951 prosecution.” Defendants, in the
case at bar, are labor officials whose
unions participated in a lawful strike.
Their alleged acts are ones contemplated
as part of a series of coercive tactics
to achieve the recognition of a union con-
tract. Although, as in Enmons, the
statutory proscriptions arguably apply,°
there is no indication that Congress in-
tended to extend the scope of a statute
aimed at combatting organized criminal
activity to encompass violence arising
out of a lawful strike. Criminal statutes
must be strictly construed, and any ambi-

guity resolved in favor of lenity. Enmons,

85

410 U.S. at 411. Much more explicit sta-
tutory language is required “to lead to
the conclusion that Congress intended to
put the federal government in the business
of policing the orderly conduct of strikes."
Id.

The indictment is an attempt to cir-
cumvent the Enmons proscription similar to
the one rejected by the Second Circuit in

United States v. DeLaurentis, 49l F.2d 208

(2d Cir. 1974). In DeLaurentis, the

government attempted to invoke a civil
rights statute to gain federal jurisdic-
tion over violent activity which had
occurred during a lawful labor dispute.
The court found that explicit provisions
of the National Labor Relations Act, and
not the civil rights statute, controlled
regulation of the alleged acts. Relying
on Enmons, the court concluded that "the

Government has unjustifiably used federal

86

law to convert an unfair labor practice

into a criminal conspiracy." DeLaurentis,

491 F.2d at 214. See, United States v.

Bailes, 120 F.Supp. 614, 637 (S.D.W.Va.
1954).

Acts of violence, such as the ones
alleged in the instant case, occurring
during a lawful labor dispute and result-
ing in damage to persons or property are
punishable under state law. However,
there is nothing in the language or his-
tory of § 1952 to "justify the conclusion
that Congress intended [§ 1952] to work
such an extraordinary change in Federal
labor law or such an unprecedented incur-
sion into the criminal jurisdiction of
the States." Enmons, 410 U.S. at 4ll.
Therefore, Counts 4 and 5 charging vio-
lations of 18 U.S.C. §1952 are dismissed.

IItl.

COUNTS 2 AND 3 OF THE
87

INDICTMENT, BROUGHT UNDER

18 U.S.C. § 844(i), ARE DISMISSED.

Defendants Fry and Salgado are charged
with violations of 18 U.S.C. § 844(i).’
As discussed, supra, absent specific autho-

rization from Congress, United States v.

Enmons, supra, precludes federal criminal

prosecution for violent activity which
eccurs during the course of a legitimate
labor dispute. § 844(i), enacted as part
of the Organized Crime Control Act of 1970
(P.L. 91-452), does not provide such
authorization. ®

Although the application of § 844
may not be limited solely to organized
crime, there is clearly no indication of
any intent by the Congress to extend
federal criminal prosecution into the
labor field. In fact, any such congres-
sional intent is even less apparent in

§ 844 than in the Hobbs Act which was con-
sidered in the Enmons case, supra.” Thus,
a consistent application of the Enmons
doctrine is appropriate to a § 844 prose-
cution. Accordingly, Counts 2 and 3
charging violations of 18 U.S.C. § 844(i)
are dismissed.

IV.

COUNTS 6 THROUGH 10 OF THE

INDICTMENT, BROUGHT UNDER

29 U.S.C. § 501(c), ARE DISMISSED.

Defendants are also alleged to have
violated 29 U.S.c. § 501(c)?° by autho-
rizing and using union funds to pay for
travel, telephone, and unspecified ex-
penses incurred in trips to Arizona and
Connecticut for the unlawful purpose of
locating and destroying two Redman trucks.
The government's theory is that a viola-

tion of § 50l(c) is established when the
89

union official utilizes union funds for an
unlawful purpose, regardless of the exist-
ence of any arguable union benefit.

The leading case is United States v.
Silverman, 430 F.2d 106 (2d Cir. 1970),
cert. denied, 402 U.S. 953 (1971). The

defendant was indicted for embezzlement

in violation of § 50l(c) and charged in
Counts 1 through 8 with diverting union
funds for the payment of printing expenses
incurred in the campaign of Abraham Beame
for mayor of New York under the guise of

a payment for union stationery and in
Counts 10 through 13, for receiving four
checks from the union under the pretense
of a steward's committee expense. Judge
Moore wrote the majority opinion involving
Counts 10 through 13 and dissented from
Judge Friendly's opinion involving Counts

1 through 8.
90

The court noted initially that the
purpose of § 50l(c) was to hold union
officials strictly responsible as fidu-
ciaries for the union funds entrusted to
them and, therefore, to require them to
expend those funds only in accordance
with the union's constitution, by-laws,
and resolutions. The two judges differed,
however, as to the standards for a
§ 50l1(c) conviction.

Judge Moore stated that because the
political contributions in Counts l
through 8 were not per se illegal, it was
necessary to focus on the issue of whether
the contributions were properly authorized
and made for the union's benefit. If
there is no possible union benefit from
the use of the funds (e.g., personal non-
business expenses not incurred in further-

ance of union business, United States v.

91

Dibrizzi, 393 F.2d 642 (2d Cir. 1968), it

makes no difference whether the use was
authorized. Judge Moore held that a con-
viction under § 50l(c) may be obtained

by demonstrating a fraudulent intent to
deprive the union of its funds and either
a lack of authorization or an absence of
benefit to the union. Believing that
there was sufficient evidence for the
jury to find that the contributions were
either for the private benefit of the
defendant or made with only a sham or
invalid authorization from the union,
Judge Moore voted to affirm the convic-
tions in Counts 1 through 8.

However, the majority opinion by
Judge Friendly observed that § 50l(c) is
essentially a larceny-type offense which
amounts to the taking of another person's
property or causing it to be taken, knowing

92

that the other person would not have wanted
that to be done. The “unlawful and wilful"
element of the offense requires that the
funds be used for the converter's personal
benefit (or for the personal benefit of
another) and not for the benefit of the
union. Judge Friendly stated that assum-

ing, arguendo, that Judge Moore's standard

was adopted, the union did benefit from
the political contributions and, in view
of the fact that the union's constitution
contemplated politi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0477%3A0. Public record. Not legal advice.