Petition — Dozier v. United States

OCTOBER TERM, 1981

GILBERT L. Dozier,

Pet.tioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WILLIAM H. Jerrress, Jr.*

STEPHEN L. NIGHTINGALE

MILLER, Cassipy, LArroca & LEWIN

Suite 500

2555 M Street, N.W.

° Washington, D.C. 20037

(202) 293-6400

*Counsel of Record

Of Counse’:

CAMILLE F. GRAVEL, JR.

HELEN G. ROBERTS

GRAVEL, RoBerRTSON & Brapy

711 Washington Street

Alexandria, Louisiana 71301

ec

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. Whether the prohibition in the Hobbs Act, 18

U.S.C. 1951, against extortion “under color of official

right” applies to solicitations of political contributions by

a public official without proof of force, threats or use of

fear.

2. Whether that portion of the Act, if applicable to

such conduct, is void for vagueness.

3. Whether a governmental agency under the control

of an elected public official constitutes an “enterprise”

within the meaning of the Racketeer Influenced and Cor-

rupt Organizations Act, 18 U.S.C. 1961 et seq.

TABLE OF CONTENTS

Page

ND TORO ia b's Ui aay eRade we cc adi acceeeesas 1

DCL, «5 u466d peuwbahWaddes 00sebenadudel 1

EE NOD Son ok rer haku ects as cucesieaet 2

REEL SS RE SS ES a Re ee 3

A. The Offense: Charged ................ccceeeees 3

B. The Motion 1 \ Dismiss The RICO Count ....... 4

C. The Evidence At Trial ..............ccceceeees 4

D. The Decision Of The Court Of Appeals .......... 7

REASONS FOR GRANTING THE Warr PT Cee yp 10

A. Anolicable In The Akeones R That The Hobbs Act Is

Coercion Extends The

Seeute Be Beyond Its Intended Limit ............. 10

B. The Hobbs Act Standard For Extortion Under Color

Of Official Right, peer Wien Detitionsr Was Svied

And Convicted, Is Unconstitutionally Vague .... 13

© Seer ee Wate sess

i: i cdeb odkeds issusnche budeksus 19

SED cy JASE Robbe dbs 66 4Rbb 0 0s secvcbhocbess 23

TABLE OF AUTHORITIES

CASES: Page

Bonner v. City of Prichard, Alabama, 661 F.2d 1206

SD WED -dhee.b che kud SnbsReRsae sd <sesek 8

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ......... 9

Buckley v. Valeo, 424 U.S. 1 (1976) .............005. 15

Cole v. Arkansas, 333 U.S. 196 (1948) .............. 17

Connally v. General Construction Co., 269 U.S. 385

EE Ua cidaghnetnb he cenenebuddapatcas ave vous 15

Dunn v. United States, 442 U.S. 100 (1979) ........ 17, 19

Grayned v. City of Rockford, 408 U.S. 104 (1972) .... 15

Gregory v. Chicago, 394 U.S. 111 (1969) ............. 17

Leary v. United States, 395 U.S. 6 (1969) ........... 7

National League of Cities v. Usery, 426 U.S. 833 (1976) 20

Ohio v. Helvering, 292 U.S. 360 (1934) .............. 20

Parker v. Levy, 417 U.S. 733 (1974) ..........00005- 15

Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) .... 17

Smith v. Goguen, 415 U.S. 566 (1974) ..........0006. 15

Stromberg v. California, 283 U.S. 359 (1931) ........ 17

United States v. Addonizio, 451 F.2d 49 (3d Cir.), cert.

denied, 405 U.S. 986 (1972) ...........000eeeees 10

United States v. Barber, 476 F. Supp. 182 (S.D. W.Va.),

d mem. sub nom. Vignola v. United States, 605

.2d 1199 (3d Cir. 1979), cert. denied, 444 U.S. 072

ee Se cea tints 20

United States v. Braasch, 505 F.2d 139 (7th Cir. 1974),

cert. denied, 421 U. S. 910 ER IRC ae 11, 13

United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974) 14

United States v. Brown, 540 F.2d 364 (8th Cir. 1976) . 11

United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert.

denied, 435 U.S. 904 (1978) ............ceeeeees

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

denied, 444 U.S. 1043 (1980) ..............2005- ll

United States v. Frumento, 563 F.2d 1083 (3d Cir. 1977),

cert. denied sub nom. Millhouse v. United States,

es Ss) on. Oi cconaclinsascebscncs 20

iv

Table of Authorities Continued

Page

United States v. z, 603 F.2d 682 (7th Cir. 1979)

cert. denied, 8 & 7) (RRP aes or

United States v. Hall, 5386 F.2d 313 (10th Cir.), cert.

denied, 429 U.S. 919 (1976). .... 2.2... ee eee eeeee ll

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

cert. denied, 434 U.S. 1062 (1978) ...............

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

denied, 429 U.S. 819 11976) Read bene bb ane beeen

United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert

denied, 404 U.S. 1058 (1972) ..............545. 10, 18

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

denied, 409 U.S. 9 4 BPR Ere 10

we a v. Kubacki, 237 F. Supp. 688 (E.D. Pa.

United States vy. Mazzei, 521 F.2d 639 (3d Cir.), cert

denied, 423 U.S. 1014 (1975) .............-00ee-

United States v. Rodriguez, 465 F.2d 5 (2d Cir. 1972) . 7

United States v. Sisk, 476 F. Supp. 1061 (M.D. Tenn.

BE nbc chsh eeaeae biased baneececacegesetuaed 22

United States v. Staszcuk, 502 o. toe a i

modified in other respects, en banc),

cert. denied, 423 U.S. 837 (1975) ...............4. ll

ie ge Thompson, ___ F.2d ____ (6th Cir. Feb.

1982), — for rehearing en banc granted

March 3 Sain deh TALUO TS pvaksxunaeoen 20, 23

United States v. eae, 525 F.2d 1096 (2d Cir. 1975), cert.

denied, 425 U.S. 971 (1976) ............. 9, 11, 13, 15

United States v. Turkette, 452 U.S. 576 (1981) ..... 21, 22

United States v. Williams, 621 F.2d 123 (5th Cir. 1980),

cert. denied, 450 U.S. 919 (1981) ..... 8, 11, 12, 18, 15

STATUTES:

ee Le: es cat nes oc wdc cclees meeeel 17

18 U.S.C. § 1951 (1976) 2.2... cece cece cc cceenes passim

BE WEG. § BOGE CORED onc ice dctscccccncaccccvenee 3, 19

Vv

Table of Authorities Continued

Page

Ss EEE COED b's dcwadc vubebectcs dequuves 22

De pas FE MIP UEP GEN iN esh tie doncecncemedes 21

PURE SP EMUED ci-db0 weeds codec cevceebeeda 22

18 U.S.C. § 1962(b) (1976)... 2... cece ee eee cece eee 22

ee AEs: RD TEU co vcctbepreseccccscceoeduc 2,3

Be as 6 ED CREED 0% cv ecccpavatnccccccscucnes 22

Be Chae ds OF MUON) CHOU enn cc cndusipeciccnsvcceéas 1

OTHER:

J. Nowak, R. Rotunda and J. Young, Constitutional

Law, MINI se oc hdutc neatly aga nudes ous 20

Note, The Racketeer Influenced and Corrupt Organiza-

yo Act: —) ye i; = ion — Bj 7

ication and a Proposal for Reform,

Sy Me SEED: a hae da Rebus sacabvbneedcbatece an 21

Ruff. Federa! Prosecution of Local Corruption: A Case

eet tin int: a w Enforcement Policy, 65

J. 1171, 11 STUER otupaeccoakdhvavevs 13

Tarlow, RICO: The New Darling of the Prosecutor's

Nursery, 49 Fordham L.Rev. 165, 205 (1980) .... 20

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1981

No.

GiLBert L. Dozier,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion and judgment of the court of appeals (App.

A, infra, pp. 1a-30a) is reported at 672 F.2d 531 (5th Cir.

1982). A memorandum opinion of the district court, deny-

ing petitioner’s motion to dismiss Count One of the indict-

ment (App. B, infra, pp. 31a-32a), is reported at 493 F.

Supp. 554 (M.D. La. 1980). The trial court’s order deny-

ing motions for a judgment of acquittal and for a new trial

(App. D, infra, p. 35a) is not reported.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1) (1976). The opinion and judgment of the

court of appeals were entered on April 8, 1982, and a

timely petition for rehearing and suggestion for rehear-

ing en banc were denied by order dated May 13, 1982

(App. C, infra, p. 32a). This petition is timely filed within

60 days of that date.

STATUTES INVOLVED

The Hobbs Act, 18 U.S.C. § 1951 (1976), provides in

pertinent part as follows:

§ 1951. Interference with commerce by threats or

violence

(a) Whoever in any way or obstructs,

delays or affects commerce or the movement of

any article or commodity in commerce, by

slibeny of eutattlaner ehtampiearectatinnse

to do, or commits or threatens physical violence

to any person or property in furtherance of a

or purpose to do anything in violation of

this section shall be fined not more than $10,000

or imprisoned not more than twenty years, or

sent, induced by wrongful use of actual or

threatened force, violence, or fear, or under

color of official right.

The portion of the Racketeer Influenced and Corrupt

Organizations statute under which the petitioner was

charged, 18 U.S.C. § 1962(c) (1976), provides:

3

The definitional section of the RICO statute, 18 U.S.C.

§ 1961 (1976), provides in pertinent part as follows:

As used in this chapter—

4) “enterprise” includes any individual, part-

nership, corporation, association or other legal en-

tity, and any union or group of individuals associ-

ated in fact although not a legal entity; . . .

STATEMENT

A. The Offenses Charged

The petitioner, formerly the elected Commissioner of

Agriculture of the State of Louisiana, was convicted on

one count under the RICO statute, 18 U.S.C. § 1962(c)

(1976), and three counts under the Hobbs Act, 18 U.S.C.

§ 1951 (1976). The RICO count charged Dozier with con-

ducting the affairs of the Department through a pattern

of “racketeering activities,” which consisted of solicita-

tions of funds by Mr. Dozier from persons or businesses

that were subject in some manner to regulation by the

Louisiana Department of Agriculture. The indictment

characterized these solicitations as both violations of the

Hobbs Act and bribery under state law. In Counts Two

through Five, four of the solicitations were charged as

separate offenses under the Hobbs Act.

The allegations of the indictment tracked the statutory

language, and identified the alleged “victims” and the

sums solicited. Contrary to the belief of the court of

appeals, however, the indictment did not identify specific

+

official actions—“quid pro quos”—that Dozier allegedly

promised to take or withhold in exchange for money. '

B. The Motion To Dismiss The RICO Count

Before trial, the defense moved to dismiss the RICO

Count on the ground (now presented in this Petition) that

the Louisiana Department of Agriculture, a public agen-

cy headed by an elected official, could not be an “enter-

prise” for purposes of the RICO statute. The trial court

denied the motion (p. 3la, infra), relying on previous

Fifth Circuit rulings on similar contentions.

C. The Evidence At Trial

The trial lasted three weeks. The government’s theory

was that Dozier attempted to obtain funds from persons

who needed assistance or feared unfavorable action from

the Department of Agriculture by leading them to believe

that he would assist them if they made contributions. The

evidence showed that following his election in December

1975, Dozier sought funds to pay his campaign deficit, and

began to plan—and to seek political contributions—for an

anticipated race for Governor four years later. In 1979, he

decided rather to campaign for reelection as Commission-

er of Agriculture, but was defeated for reelection and left

‘The court of appeals stated that the indictment “was rife with

‘specifically identifiable’ guid pro quos” (p. 12a, n.4 infra), and de-

scribed the “allegations” as including specific promises or threats

made by Dozier in connection with attempts to obtain funds (pp.

2a-3a, infra). In fact, only one guid pro quo was alleged in the entire

indictment: a promise to Temple Brown, a dairy owner, that Dozier

would make him “the czar of the milk industry” if he raised money for

Dozier from dairy owners across the State. This alleged quid pro quo

was not argued to the jury by the prosecutor, nor was it mentioned by

the court of appeals, as the claimed basis for the extortion charge.

5

office in March 1980. The alleged acts of attempted extor-

tion or bribery occurred on various dates between his

initial election and his defeat in the reclection campaign.

The evidence on two of the charges, viewed in the light

most favorable to the government, is set out in the opin-

ion of the court of appeals (infra, pp. 8a-9a). The govern-

ment’s witnesses on other charges in the indictment also

testified to conduct by Dozier from which, with varying

degrees of clarity, it could be inferred that they would be

helped or hurt depending on their willingness to con-

tribute. Dozier, who testified in his own behalf, denied

that he expressly or impliedly tied his requests for con-

tributions to official actions on any of the occasions de-

scribed in the indictment.

While the evidence was sufficient to support the ver-

dicts, when viewed in the light most favorable to the

government, it was not so compelling as to make the

jury’s decision an easy one. The evidence showed that of

the eleven* victims of Dozier’s alleged extortion, only

four raised or contributed any funds to him at all, and of

those four, none received the official action they testified

that they sought. Of the remaining seven “victims,” from

whom Dozier allegedly attempted to obtain in excess of

$275,000, none contributed any money, yet five did re-

ceive the official action they sought. The government's

lead witness on the first of the charges described in the

opinion of the court of appeals, Loy Weaver, while

strongly suggesting in his trial testimony that he believed

Dozier was seeking a quid pro quo for favorable action on

an auction barn charter, admitted that on an earlier occa-

? One predicate offense alleged in the indictment was dismissed on

the government’s motion prior to trial.

—-

6

sion he had testified quite differently. Mr. Weaver—a

former FBI and DEA agent—had stated to a legislative

committee fifteen months before the trial as follows (Tr.

216-217):

. . . [[)n my opinion, Mr. Dozier did not violate the

wy y your opinion, maybe he did, but I don’t think

. . . He has every right to solicit campaign contribu-

tions and I don’t deny that. I think the setting was

wrong. I think the ique was wrong but that is a

political consideration not a question of criminal

nests in my judgment. ... Mr. Cain, you

w there is a very very thin line between what is

timate solicitation of contributions and what is a

v vaness. Searvane yesgpte our enemy and ask

for a contribution, you cou: that a threat.

Another witness, Floyd Volentine, while stating on

direct examination (over objection) that he considered

Dozier’s requests for political contributions from groups

of auction barn owners to have been “blackmail” and

“morally wrong,” described on cross-examination what

Dozier actually said, as follows (Tr. 892):

Mr. Dozier stated he was heavily in debt as a result of

his campaign for Commissioner; that he wanted

$30,000 out of the auction market people, that would

come to about $1000 apiece; he was going to make us

the best Commissioner of Agriculture that this state

nas over DEN Set ee be able to help us; he

was oe 0 Soe co Oop Be; be Wee aires bo et

the private veterinarians in the

market place, and that he was going to get the fee

raised that was paid the auction markets for assisting

in testing the brucellosis.

That’s the only pitch, Mr. Gravel, he made. . . .

The trial court’s instructions on the Hobbs Act, which

applied to the predicate offenses under RICO and the

7

substantive Hobbs Act counts, permitted the jury to find

a violation on either of two alternative theories: extortion

(1) through the “use of actual or threatened force, vio-

lence, or fear” or (2) “under color of official right.”* It

described the latter as “the wrongful taking by a public

officer of money or property not due him or his office,

whether or not the taking was accomplished by force,

threats, or use of fear,” and defined the term “wrongful”

to mean “the obtaining of property unfairly and unjustly

by one having no lawful claim thereto.” Tr. 3274. No-

where did the court's instructions suggest that a convic-

tion could be based only on a showing that Mr. Dozier had

solicited funds in exchange for specified official actions—

i.e., a quid pro quo.

The jury returned guilty verdicts “2 the RICO count

and three of the four Hobbs Act counts, and a not guilty

verdict on the remaining count. The defense filed a post-

trial motion for a judgment of acquittal on the grounds

(now the subject of this Petition) that the Hobbs Act does

not apply to non-coercive solicitations as a matter of

statutory construction and that, as construed in binding

Fifth Circuit precedent and as described to the jury, it is

unconstitutionally vague as applied to solicitations of po-

litical contributions. The trial court denied the motion

without opinion.

D. The Decision Of The Court Of Appeals

On appeal, the petitioner explicitly raised the point

that the Hobbs Act’s proscription of extortion “under

* Accordingly, the legal sufficiency of each of these theories is

before the Court. Where it cannot be known which of two theories a

jury chose, a defect in either requires reversal. See Leary v. United

States, 395 U.S. 6, 31-32 (1969); United States v. Rodriguez, 465 F .2d

5, 10 (2d Cir. 1972).

er Pees nt

8

color of official right” does not apply to attempts to cbtain

funds without proof of force, threats, or use of fear, but

did not further argue the point in deference to the prior

rejection of that contention by a panel of the Fifth Circuit

in United States v. Williams, 621 F.2d 123 (5th Cir.

1980), cert. denied, 450 U.S. 919 (1981). * Likewise, the

petitioner explicitly raised but did not argue at length the

point that a governmental entity is not an “enterprise” for

the purpose of the RICO statute, in deference to the

rejection of that argument by a panel of the Fifth Circuit

in United States v. Brown, 555 F.2d 407, 416 (5th Cir.

1977), cert. denied, 435 U.S. 904 (1978). The petitioner

urged the full court to consider both contentions in a

petition for rehearing en banc, which was denied without

opinion.

The opinion of the court of appeals did address the

petitioner’s cuntention that the Hobbs Act, insofar as it

punishes attempts to obtain funds “under color of official

right,” is void for vagueness as applied to the solicitation

of political contributions. The Court declined to decide

the constitutional sufficiency of previous interpretations

by the Fifth and other Circuits of the standards

for conviction under the Act, which had defined the

offense to include two elements: (1) that the public official

sought or obtained funds “knowing he was not entitled to

them in the discharge of his lawful duties,” and (2) that

the payments were “induced by his official position,”

United States v. Williams, supra, 621 F.2d at 126, or that

“the motivation for the payment focuse[d] on the reci-

‘ The Fifth Circuit follows “the absolute rule that ¢ prior decision of

the circuit (panel or en banc) could not be overruled by a panel but

only by the court sitting en banc.” Bonner v. City of Prichard,

Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981).

9

pient’s office,” United States v. Trotta, 525 F.2d 1096,

1100 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976).

Rather, the court of appeals upheld the validity of the Act

on the basis that it prohibits a public official from “condi-

tioning performance of official acts on the payment of fees

in the name of contributions.” P. 10a, infra. * Relying on

the erroneous impression that the indictment charged

“speci y identifiable’ quid pro quos” offered by Mr.

Dozier in exchange for funds, * and finding the evidence

sufficient to establish that Dozier “demanded specific

amounts of money for specific favors,” p. 12a infra, the

court found that his conduct fell “within the ‘hard core’ of

the statute’s proscriptions.” /d. (quoting from Broadrick

v. Oklahoma, 413 U.S. 601, 608 (1973)). It therefore held

that he was not in a position to complain of the vagueness

of the Act as applied to political fund-raising activities “on

the margin of the law.” Jd.

* At other points in the opinion, the Court expressed the test in

only slightly different terms. “Whether described familiarly as a

payoff or with the Latinate precision of guid pro quo, the prohibited

exchange is the same: a public official may not demand payment as

inducement for the promise to perform (or not to perform) an official

act.” p. 7a, infra. “[A]ny public officer, elected or otherwise, who

makes performance (or nonperformance) of an official act contingent

upon payment of a fee—whether or not the fee actually is paid or the

act actually performed—is guilty of extortion ‘under color of official

right.’” pp. 13a-14a, infra.

*See note 1, p. 4 supra.

10

REASONS FOR GRANTING THE WRIT

A. The Court Of Appeal’s Ruling That The Hobbs Act Is

Applicable In The Absence Of Coercion Extends The Stat-

ute Beyond Its Intended Limit

The decision below is the latest of a recent series of

cases in which the courts of appeals have held that a public

official may be convicted of extortion “under color of

official right” without any proof of “threat, fear, or

duress,” beginning with United States v. Kenny, 462

F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914 (1972).

Prior to Kenny, the courts uniformly required a showing

of coercion for a conviction under the Hobbs Act. For

example, in United States v. Hyde, 448 F.2d 815, 833 (5th

Cir. 1971), cert. denied, 404 U.S. 1058 (1972), the Fifth

Circuit distinguished extortion under the Hobbs Act from

the offense of bribery in which the victims were “willing

participants”:

The distinction [of extortion] from bribery is there-

fore the initiative and on the part of the

official and the fear poh of voluntariness on the

part of the victim.

See United States v. Addonizio, 451 F.2d 49, 72 (3d Cir.),

cert. denied, 405 U.S. 936 (1972); United States v.

Kubacki, 237 F. Supp. 638, 641-42 (E.D. Pa. 1965).

Without substantial discussion and without acknowl-

edging the novelty of its holding, the court in Kenny

repudiated the well-established distinction between ex-

tortion and bribery and heid, for the first time, that

extortion “under color of official right” does “not require

proof of threat, fear, or duress.” 462 F.2d at 1229. A

number of cases have followed Kenny without substantial

independent consideration of the issue that the Third

fee

ll

Circuit resolved so peremptorily. ’ Thus, the Hobbs Act

has been extended to any case in which a defendant has

“accepted . . . money and gratvities, knowing he was not

entitled to them in the discharge of his lawful duties, and

that payment was induced by his official position,” United

States v. Williams, 621 F.2d 123, 126 (5th Cir. 1980), cert.

denied, 450 U.S. 919 (1981), with only cursory attention

to whether this construction is valid.

Putting aside for the moment the difficulty of applying

this test to political fund-raising activities, which was

acknowledged by the court below, these holdings have

divorced the Hobbs Act’s proscriptions from their focus

on coercion and have made of the Act a vehicle for the

prosecution of conduct not contemplated by Congress to

fall within. its reach. Both the error of the Kenny rule and

its “revolutionary” implications for federal prosecutions

of public officials were carefully reviewed by Judge

Aldisert in United States v. Cerilli, 603 F.2d 415, 426-27

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

denied, 429 U.S. 819 (1976); United States v. Trotta, 525 F.2d 1096,

1100 n.7 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United

States v. Harding, 563 F .2d 299 (6th Cir. 1977), cert. denied, 434 U.S.

1062 (1978); United States v. Staszcuk, 502 F.2d 875, 878 n.5 (7th Cir.

1974), modified in other respects, 517 F.2d 53 (en banc), cert. denied,

423 U.S. 837 (1975); United States v. Brown, 540 F.2d 364, 371-72

(8th Cir. 1976); United States v. Braasch, 505 F.2d 139, 151 n.7 (7th

Cir. 1974), cert. denied, 421 U.S. 910 (1975); United States v. Hall,

536 F.2d 313, 321 (10th Cir.), cert. denied, 429 U.S. 919 (1976). Only

Harding engaged in any independent consideration of the issues, and

the Eighth Circuit there characterized its analysis as “a few addition-

al words of explanation” for its agreement with “other courts which

have considered the issue.” 563 F.2d at 302.

12

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

1043 (1980), who summarized his conclusion as follows:

=e now my view that our inte aap ye ered

its progeny is not suppo y the legislative

intent underlying the Hobbs Act nor is it historically

accurate. I believe that our failure to reexamine its

rationale has resulted in a perpetuation of erroneous

law not only :n this circuit but in the First, Second,

Fourth, Seventh, Eighth and Tenth Circuits which

have followed our lead without setting forth a

reasoned elaboration for their conclusions.

When a panel of the Fifth Circuit first adopted the

Kenny rule, Judge Tate wrote separately to state “for

benefit of en banc consideration or further review,” that it

was “clear” to him “that the congressional intent to pun-

ish racketeering by extortion, with penalties of up to

twenty years imprisonment, included that the extortion

be by coercion, economic or otherwise.” United States v.

Williams, supra, 621 F.2d at 126. Indeed, even Judge

Gibbons, who wrote the opinion in Kenny, has written in

dissent to criticize the extension of the Hobbs Act to

certain forms of non-coercive conduct now encompassed

within the interpretation applied by the courts of appeals.

See United States v. Mazzei, 521 F.2d 639, 646-56 (3d Cir.

1975) (en banc), cert. denied, 423 U.S. 1014 (1975) (Gib-

bons, J., dissenting). And a former United States Attor-

ney and head of the Watergate Special Prosecution

Force, after reviewing the uses to which the Hobbs Act

has recently been put, has written:

Given this flurry of prosecutorial activity, it is

propriate to consider whether the original

of the Kenny tion is supportable either as a

matter of legislative intent or as a matter of historical

. If substantial uncertainty exists on both

accuracy

these counts, it must then be whether courts

should continue to accept the broad interpretation of

13

the Hobbs Act espoused by the Government, given

the vast potential for federal intrusion into state and

local law enforcement that such an interpretation

entails.

Ruff, Federal Prosecution of Local Corruption: A Case

Study in the Making of Law Enforcement Policy, 65

Geo.L.J. 1171, 1178-79 (1977).

B. The Hobbs Act Standard For Extortion Under Color Of

Official Right, Under Which Petitioner Was Tried And

Convicted, Is Unconstitutionally Vague.

For the reasons stated above, this Court should grant

certiorari to decide whether extortion “under color of

official right” under the Hobbs Act applies without proof

of threats, force, or duress. Even if the Kenny rule is a

proper construction of the Act, however, the effort of the

court below to save that construction from the vice of

vagueness as applied to the solicitation of political con-

tributions represents both an unsettling departure from

prior law and an unlawful affirmance of the petitioner’s

conviction on a legal theory upon which he was not tried.

Prior to the decision of the Fifth Circuit in this case, the

prevailing requirement for conviction of extortion “under

color of official right” was that the defendant sought or

accepted funds “knowing he was not entitled to them in

the discharge of his lawful duties, and that payment was

induced by his official position.” United States v. Wil-

liams, supra, 621 F.2d at 126. Other courts had set forth

the standard in similar terms: “So long as the motivation

for the payment focuses on the recipient’s office, the

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

United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir.

1975), cert. denied, 425 U.S. 971 (1976); United States v.

Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied,

421 U.S. 910 (1975).

14

Ordinarily, a public official has no business accepting

money to which he is not “lawfully entitled” by reason of

contract, honorarium or the like, and where he does so, he

has reason to know that he is in danger of criminal

prosecution. The further requirement in such a case that

the payment be “induced by his official position” is one

that—while far from precise—may afford a sufficient

standard to meet the notice requirement of a criminal

statute. But where the solicitation or payment in question

is a political contribution, the formulation breaks down

entirely, for a public official is never “lawfully entitled” to

a political contribution, yet he must solicit and receive

them if he i .o campaign for election or reelection.

That fact leaves such an official, under the prevailing

interpretation of the Hobbs Act, with a single standard to

define the difference between a criminal offense carrying

a 20-year prison sentence, and a lawful receipt of a politi-

cal contribution: whether the contribution is “induced” or

“motivated” by his office. It does not require extended

discussion to demonstrate the precarious position such a

vague standard creates for candidates who know that

large contributors to their campaigns hope for and expect

a sympathetic ear for the needs and the views of their

industry, trade union, profession, or other special in-

terest. As the District of Columbia Circuit observed in

reversing a conviction for failure adequately to instruct

the jury on the difference between bribery, unlawful

gratuity, and innocent receipt of funds, “No politician

who knows the identity and business interests of his

campaign contributors is ever completely devoid of

knowledge as to the inspiration behind the donation.”

United States v. Brewster, 506 F.2d 62, 81 (D.C. Cir.

1974).

15

In short, the interpretation of the Hobbs Act under

which the petitioner was indicted and tried is so vague

when applied to solicitations of political contributions that

people “of common intelligence must necessarily guess at

its meaning and differ as to its application.” Connally v.

General Construction Co., 269 U.S. 385, 391 (1926).

Furthermore, the demand for specificity in this context

is particularly urgent because the activity in question is

protected by the First Amendment. This Court recog-

nized in Buckley v. Valeo, 424 U.S. 1, 19, 21 (1976), that

“virtually every means of communicating ideas in today’s

mass society requires the expenditure of money” and thus

that fund-raising is “necessary for effective advocacy.”

When a statute is capable of reaching first-amendment

activity, this Court has “demand{ ed] a greater degree of

specificity than in other contexts.” £.g., Smith v. Go-

guen, 415 U.S. 566, 573 (1974); Parker v. Levy, 417 U.S.

733 (1974). “Uncertain meanings inevitably lead citizens

to ‘steer far wider of the unlawful zone.’ ” Grayned v. City

of Rockford, 408 U.S. 104, 109 (1972). *

In response to the petitioner’s challenge to the con-

stitutionality of the Hobbs Act as applied to solicitations

* Apart from its tendency to chill a necessary element of modern

first-amendment activity, the prevailing interpretation of the Hobbs

Act creates an unacceptable risk of selective and arbitrary enforce-

ment. “A vague law impermissibly delegates basic policy matters to

policemen, judges, and juries for resolution on an ad hoc and subjec-

tive basis, with the attendant dangers of arbitrary and discriminato-

ry application.” Grayned v. City of Rockford, supra, 408 U.S. at 109

(citing many cases). This risk is particularly severe and intolerable in

the area of political activity. This Court’s review is appropriate to

assure that controversial or unpopular candidates are not singled out

by prosecutors or convicted by juries guided by standards as vague

as those now embodied in the Hobbs Act.

16

of political contributions, and recognizing the validity of

these concerns, the court below expressly disavowed that

the formulation it had earlier announced in United States

v. Williams, supra, was intended as “a well-chiseled

standard in that context,” infra, p. 6a n.1. It also declined

to accept the Second Circuit’s formulation of extortion

“under color of official right” set forth in United States v.

Trotta, supra. Rather, it adopted a totally new standard

to define the offense of extortion “under color of official

right,” as follows: “[A) public official may not demand

payment asi. ducement for the promise to perform (or not

to perform) an official act.” Infra, p. 7a. °

By interpreting the statute, when applied in the con-

text of political contributions, as a prohibition against the

demand for or receipt of money in exchange for the prom-

ise or performance of an official act, the court below has

made the Hobbs Act a bribery statute applicable to all

state and local public officials whenever their duties im-

pact on interstate commerce. That Congress never in-

tended the Hobbs Act as such a criminal statute is evi-

denced not only by the legislative history and previous

interpretations of the Act, but by other Congressional

action. When Congress set out to prohibit the solicitation

of political contributions as a condition to the performance

or nonperformance of an official act by a state or local

official, it did so in plain language—and made the offense

* The court did not say whether this standard—requiring proof of a

quid pro quo—is to be applied only in the context of political contribu-

tions or is to be applied generally under the “under color of official

right” portion of the Hobbs Act.

17

punishable as a misdemeanor, rather than by 20 years

imprisonment as provided in the Hobbs Act. ”

Furthermore, even if the court of appeals’ construction

of the statute were consistent with the language and

history of the Act and sufficient to save it from the vice of

vagueness, it could not be retrospectively applied in this

case. This Court has recognized that an appellate court

may not reject a vagueness challenge on the basis of a

narrowing construction that was not available to the trier

of fact. E.g., Shuttlesworth v. Birmingham, 382 U.S. 87,

92 (1965); Gregory v. Chicago, 394 U.S. 111, 118-24 (1969)

(Black, J., concurring). See Cole v. Arkansas, 333 U.S.

196 (1948); Stromberg v. California, 283 U.S. 359 (1931);

Dunn v. United States, 442 U.S. 100 (1979). When a jury

has not had an opportunity to apply a limiting construc-

tion, the appellate court is “unable to say” that the convic-

tion did not rest on “an unconstitutional construction” of

the statute. Shuttlesworth v. City of Birmingham, su-

pra, 382 U.S. at 92. Thus, an affirmance violates the

defendant’s right to have a jury apply proper standards to

” Section 601 of Title 18, tan Cee provides as follows:

Whoever, directly or indirectly, causes or

to cause any person to make a of thing of vale

Cinuing services forthe benefit of any cana oa

at Ly nee ee gy ps ammecemnam or the ths eat of

or deprivation, of

ae position, or work in or for

day y of the Government of the United States, 8

State, or a political subdivision of a State, cqagunaaiion

or tant d cach eapleyuent, ae a or

(2)any ee ae J 4. dor:

ee crete ayment or

of Congress, shall be fined not more than $10,000, or impris-

a! not more than one year, or both.

18

his case. In this case, the record confirms that Mr. Dozier

was not tried on the theory on which his conviction was

affirmed.

a. The indictment was phrased in the language of the

statute and thus did not suggest that a “quid pro quo” was

required for a conviction.

b. The operative jury instruction on the Hobbs Act

did not require a quid pro quo, but rather only a “wrong-

ful taking . . . whether or not the taking was accom-

plished by force, threats, or use of fear.” “Wrongful”

was defined to mean “the obtaining of property unfairly

and unjustly by one having no lawful claim thereto.”

ce. Under the Louisiana Bribery Statute, the prosecu-

tor argued for a conviction without any showing of a quid

" The instructions delivered at trial regarding extortion “under

color of official right” included the following (Tr. 3274):

taking by a officer of money or property not due i

office, the force,

Reet oe ere ore

However, it is clear that these sentences are designed only to address

19

pro quo, confirming that the government’s view was that

political contributions could be punished on terms differ-

ent than those later announced by the Fifth Circuit (Tr.

3029):

[I}t is not necessary that bribery solicited be for a

act, or what we ma ame tg Pade It’s

p « epedanedball ery y dye Bows er?

things, of course, intent and hg law that that

the court will to you that require that it be

salched with the intend be iaflemune hes in the come

duct of his office, not for a specific thing, but

general. "

To be sure, the prosecutor attempted at trial to prove

that Mr. Dozier’s solicitations did involve quid pro quos.

However, the jury was never instructed to resolve that

question to determine the petitioner’s guilt or innocence.

A conviction on a theory not presented to a jury cannot be

upheld solely because there is “no glaring distinction

between the Government’s theory at trial and the [court

of appeals’) analysis on appeal.” Dunn v. United States,

supra, 442 U.S. at 107. The constitutionality of the vague

construction of the Hobbs Act under which Mr. Dozier

was convicted is squarely presented for review.

C. AGovernmental Agency Headed By An Elected Official Is

Not An “Enterprise” Within The Meaning Of 18 U.S.C.

§ 1961

- Whether a governmental agency under the control of

an elected public official may be deemed an “enterprise”

® The prosecutor was arguing from the following jury instruction

concerning the Louisiana Bribery Statute (Tr. 3244-45):

Si peaey . is whether the political contribution is made or

not ific action, but with the

intent to influence mazen [a] guid prone for servant in relation to

his position, employment or duty. ( added).

within the meaning of the federal racketeering statute is

an important question regarding the construction of a

significant federal criminal statute that this Court has not

yet resolved.” As this case amply demonstrates, the

Department of Justice persistently prosecutes alleged

offenses by individual public officials under the theory

that all public agencies are enterprises. See Tarlow,

RICO: The New Darling of the Prosecutor’s Nursery, 49

Fordham L. Rev. 165, 205 (1980). The holding of the court

below that such a use of the RICO statute is proper is

squarely contrary to the statutory language and history,

as reviewed and explained by a panel of the Sixth Circuit

in a decision now under reconsideration en banc. United

States v. Thompson, ___. F.2d ____ (6th Cir. Feb. 8,

1982), petition for rehearing en banc granted March 26,

1982." The significance of the issue fully justifies the

'’ Whether public corporations or boards that amount merely to

state-operated commercial ventures engaged in interstate commerce

qualify as “enterprises” under the statute is not in question here. See

United States v. Frumento, 563 F .2d 1083 (3d Cir. 1977), cert. denied

sub nom., Millhouse v. United States, 434 U.S. 1072 (1978); United

States v. Barber, 476 F. Supp. 182 (S.D. W.Va.), aff'd mem. sub

nom. Vignola v. United States, 605 F.2d 1199 (3d Cir. 1979), cert.

denied, 444 U.S. 1072 (1980). These entities do not perform “tradi-

tional governmental functions,” National League of Cities v. Usery,

426 U.S. 833, 852 (1976), but rather share a common goal—profit

maximization—with private business enterprises. See J. Nowak, R.

Rotunda & J. Young, Constitutional Law, 370 (1978) (distinguishing

“essentially governmental” state functions, which are not subject to

federal taxation, from those that are “proprietary (business) in na-

ture and properly taxed”); Ohio v. Helvering, 292 U.S. 360 (1934).

“ The Thompson case, which involved the Office of the Governor of

the State of Tennessee as the alleged “enterprise,” was reargued en

banc on April 26, 1982, and no decision has yet been issued.

21

Department of Justice’s conclusion in its petition for

rehearing in Thompson, as follows:

The importance of the issue in this case is hard to

overstate. .. . We believe that the issue presented

in this case [is] equal in importance to the question of

whether the racketeering statute reaches illegiti-

mate as well as legitimate enterprises, a —

which . . . was ultimately resolved by the Supreme

As this Court recently confirmed, United States v.

Turkette, 452 U.S. 576 (1981), the statutory definition of

“enterprise” is, on its face, broad and unambiguous. Close

scrutiny of 18 U.S.C. § 1961(4) (1976) reveals, however,

that it is unambiguous only with respect to the form that

an enterprise may take; the definition does not address

the purpose for which an enterprise exists. Business,

both legal and illegal, may be conducted in many forms,

and it was Congress’ clear intention that RICO would

cover all of these forms. But the word ‘ enterprise” im-

plies an economic, profit-seeking orientation that did not

escape Congress’ attention. In fact, the legislative histo-

ry “is replete with examples of legislators’ use of the word

‘business’ synonymously with the statutory concept of

‘enterprise.’” Note, The Racketeer Influenced and Cor-

rupt Organizations Act: An Arvalysis of the Confusion in

its Application and a Proposal for Reform, 33 Vand. L.

Rev. 441, 474 (1980). Congress could not have meant, for

example, that every individual is an enterprise, but only

that every individual, like every legal or nonlegal entity,

can be an enterprise if he pursues certain economic goals.

Because most state agencies do not pursue the goals that

characterize “enterprises” as Congress understood that

term, they do not fall within the statutory definition. This

argument has not been addressed by any of the courts of

appeals

Other internal evidence of RICO’s scope confirms this

interpretation of “enterprise.” Sections 1962(a) and

1962(b) clearly contemplate that an enterprise is some-

thing in which one can invest and hold a property interest,

and applying RICO’s civil remedies to state agencies

would yield anomalous results. Section 1964(a) authorizes

district courts not only to prohibit “any person from

engaging in the same type of endeavor as the enterprise

engaged in,” but also to order “dissolution or reorganiza-

tion of any enterprise.” 18 U.S.C. § 1964(a) (1976) (em-

phasis added). It is inconceivable that Congress would or

could have sanctioned the use of such sweeping remedial

power against state agencies that undertake only tradi-

tional governmental functions. The “primacy” of RICO’s

remedial provisions and their “total inapplicability . . . to

governmental entities corroborate what the legislative

history demonstrates: Congress had no intention of in-

cluding governmental units within the ambit of the ‘enter-

prise’ provisions . . . .” United States v. Grzywacz, 603

F.2d 682, 691 (7th Cir. 1979) (Swygert, J., dissenting),

cert. denied, 446 U.S. 935 (1980). °

The importance of the issue and its implications for use

of the draconian RICO statute in federal prosecutions of

state and local officials are apparent. Given the split of

Contrary to the conclusion of one court, United States v. Sisk,

476 F. Supp. 1061, 1062 (M.D. Tenn. 1979), the enumeration of

bribery and extortion as “racketeering activities” in 18 U.S. § 1961(1)

provides no evidence that a governmental entity may constitute an

“enterprise.” That an agency performing traditional governmental

functions is not a RICO enterprise does not mean that the Act

“cannot be used to rach corruption of government by organized

outside forces . . . [or] that public officials are immune from RICO

actions. . . . Following Turkette, the corrupting organizations may

opinion on the issue among judges of the courts of appeals

(including one panel holding, now under en banc review,

that squarely conflicts with the decision of the court be-

low), the issue plainly warrants review by this Court.

CONCLUSION

For the reasons set forth herein, the Court should

grant the petition for writ of certiorari.

Respectfully submitted,

WILLIAM H. JEFFRESS, JR.*

STEPHEN L. NIGHTINGALE

MILLER, CassipDy, LARRocA & LEWIN

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

*Counsel of Record

Of Counsel:

CAMILLE F.. GRAVEL, JR.

HELEN G. ROBERTS

GRAVEL, ROBERTSON & BRADY

711 Washington Street

Alexandria, Louisiana 71301

themselves be charged as RICO enterprises, and the evils Congress

feared and legislated against can be fought.” United States v.

Thompson, supra (slip op. at 11). Ifthe government can demonstrate

a proper RICO enterprise, bribery and extortion are chargeable

offenses, but this does not suggest that the inclusion of those offenses

was intended to alter the commonly accepted link between “enter-

prise” and the business of making money.