Petition — Billups v. United States

Office-Supreme Court, U.S.

82-1932 FILED

Docket No. MAY 27 1983

CLERK

In the Supreme Court of the United States

October Term, 1982

MYLES E. BILLUPS, SR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Stanley E. Sacks, a member

of the Bar of the Supreme

Court of the United States

Andrew M. Sacks

SACKS, SACKS & LARKIN

P.O. Box 3291

Norfolk, Virginia 23514

Tel: (804) 623-2753

Counsel for Petitioner

EEE

QUESTIONS PRESENTED

1. Whether the Fourth Circuit's

novel interpretation that venue will lie

in the Eastern District of Virginia in the

prosecution for an alleged violation of

29 U.S.C. § 186(b) (the Taft-Hartley Act)

where the entire transaction was com-

menced and completed in a resturant in

New York City violated Petitioner's

Article III and Sixth Amendment rights

to be tried in the District in which the

alleged offense occurred?

2. Whether a conviction for an

alleged violation of 18 U.S.C. § 1951

(the Hobbs Act) can be properly sustained

where the alleged victim himself testified

that he did not harbor any physical or

economic fear, and where the only evidence

of fear was wholly speculative and extremely

slight?

3. Whether the Fourth Circuit's

refusal to grant Petitioner a new trial

in light of a juror's failure to disclose

material information on voir dire when

under a duty to do so, and thereby

creating a serious intercircuit conflict,

denied Petitioner his Sixth and Fourteenth

Amendments rights to a fair trial and an

impartial jury?

4. Whether the Fourth Circuit's

novel interpretation of New York State

Law bribery under 18 U.S.C. § 1952 (the

Travel Act) as also embracing the New

York State law prohibiting the alleged

receipt of a bribe, as opposed to only

the alleged giving of a bribe, violated

the clear statutory mandates of the

Travel Act, and denied Petitioner his

fundamental rights of Due Process under

the Fifth and Fourteenth Amendments of

the United States Constitution?

= 41 «

INDEX

Page

OPINION BEIQW .« «© © © © © © @ 2

SURI OULGASee « « + © © © 0 8 ¢ * 3

STATUTES INVOLVED ...« ce « « e« 3

STATEMENT OF THE CASE. .... .- 3

PMc: » ee a a as

CONCLUSION «. «© «© © © © © e© ee « « 40

APPeeOse «© se te e+e ee ee ee la

CITATIONS

Cases:

Carpenter v. United States, 100

F.4a 76, 737 (BC. Cad.

S9sn) 3 te we we Se eS ee ee

Consolidated Gas and Equipment

Company of America v. Carver,

42/ F.4G lii, 115 (10th Cir.

Suen). # 6 6 ee Se ere eee 34

Frazier v. United States, 335 U.S.

Se? (S966) 44 s+ «s+ 6 ws * o % 35

Photostat Corp. v. Ball, 338

F.2d 783, 786 (10th Cir.

eens) 6s 4 ie fe ee ee ee ee 35

Pointer v. United States, 15l

U.S. 396, 38 L.Ed. 208

(2004) « + «ee 2 6 4 oe * 8 34

Smith v. Phillips, 50 U.S.L.W.

4190, 4192 (Jan. 25, 1982) .. 37

- dii -

United States v. Floyd, 228

F.2d 913 (7th Cir.), cert.

denied, 351 U.S. 938

[avee) 6 46 2 8 y +e © + © BG, 27,28

United States v. Myles E.

Billups, Sr., No. 81-5213

at 26 (4th Cir. October 15,

1982) ey ar ae ae or ee 5

STATUTES:

The Hobbs Act - 18 U.S.C.

§1951 “sce ee oe oe Passim

New York Penal Law §180.15

(McKinney 1975) ..... .- 39

New York Penal Law §180.25

(McKinney 1975). .... . 39

The Taft-Hartley Act - 18

0.8.¢C. Si06(b) (4) (4G) . « 22

Title U.S.C. §1952(a) (3) .

roi, (2, 2 Passim

ic 2 le et ee 3

1S U.S.C. $2237 37

ae OUe8.6. Bizeeent « e+ 4 ee 3

29 U.S.C. §186(b) 7

CONSTITUTION OF THE UNITED STATES

po a 2 Se a

' 24

Beet 208 6 Se se SOR

P 24

- iv-

MISCELLANEOUS

Federal Rule of Criminal

Procedure 18 ....+-e+-e-s+ 9264

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

MYLES E. BILLUPS, SR.,

Petitioner.

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

The Petitioner, Myles E. Billups,

Sr., prays that a writ of certiorari

issue to review the judgment of the

United States Court of Appeals for the

Fourth Circuit affirming his Final

Judgment of convictions of violations

of Title 18, U.S.C §1951; Title 18

U.S.C. §1952(a)(3); and two (2) viola-

tions of Title 29 U.S.C. §186(b),

entered in the United States District

Court for the Eastern District of

Virginia, Norfolk, Virginia.

OPINIONS BELOW

The Order of the United States

Court of Appeals for the Fourth Circuit,

denying Petitioner's Petition For

Rehearing And Suggestion For Rehearing

En Banc was filed on March 29, 1983,

and is printed in the Appendix to this

Petition (App. la). The Opinion of the

Court of Appeals was filed on October 15,

1982, and was amended by an Order

entered by the Court of Appeals on April

29, 1983. The Amended Opinion of the

Court of Appeals is reported at 692

F.2d 320, and is printed in the Appendix

to this Petition (App. 2a - 52a). The

Order of the Court of Appeals amending

the Opinion is printed in the Appendix

hereto (App. 53a - 54a). The Memorandum

and Order of the Trial Court affirming

the jury verdict of conviction is

reported at 522 F.Supp. 935.

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1). The

jurisdiction of the Trial Court was

invoked pursuant to 18 U.S.C. §2331l.

STATUTES INVOKED

Title 18 U.S.C. §1951 is reprinted

in the Appendix hereto. (App. 55a - 57a)

Title 18 U.S.C. §1952(a)(3) is

reprinted in the Appendix hereto.

(App. 58a - 59a)

Title 29 U.S.C. §186(b) is reprinted

in the Appendix hereto (App. 60a - 6la)

STATEMENT OF THE CASE

l. The Nature of the Case and

Proceedings Below

The Petitioner, Myles E. Billups,

Sr., was charged in a ten (10) count

indictment filed in the United States

District Court for the Eastern District

of Virginia, Norfolk Division, on

November 20, 1980, with two (2) violations

of Title 18 U.S.C. §1951, alleging

Hobbs Act extortion; two (2) violations

of 18 U.S.C. §1952(a)(3), The Travel

Act; and six (6) violations of 29 U.S.C.

§186(b), Taft-Hartley misdemeanors.

The indictment is reprinted in the

Appendix hereto (App. 62a - 73a).

During the course of trial

proceedings two of the Taft-Hartley mis-

demeanor charges were dismissed by the

Trial Judge.

After a ten day trial on the

remaining eight counts of the indictment,

Billups on March 26, 1981, was found

guilty by the jury of four counts, to-

wit: (1) One violation of 18 U.S.C.

§1951, the Hobbs, Act (Count One); (2)

One of 18 U.S.C. §1952(a)(3), the Travel

Act (Count Two); (3) and two violations

of 29 U.S.C. §186(b), Taft-Hartley

misdemeanor (Counts Eight and Nine).

The jury found Billups not guilty of

the charges in Counts Three, Four, Six

and Seven of the indictment.

Post trial motions were filed by

the defendant for a Judgment of Acquittal

and a New Trial. A hearing and argument

was held on August 4, 1981, and all

motions were denied, the Court filing a

written Memorandum Opinion on August

28, 1981. United States v. Myles E.

Billups, Sr., 522 F.Supp 935 (E.D.Va.

1981)

Because the matter had received

extensive pretrial publicity, the

Trial Court had granted extensive voir

dire procedures. During these procedures

One Jadis Battle, who ultimately was

selected and who served as a juror,

did not reveal that her son, one William

Battle, was, in fact, a member of Port

Handlers Local 1458 of the Longshoreman's

Association, although the questionnaire

submitted to each potential juror when

completed by them included the foliowing

specific question:

"23. Are you or any immediate

member of your family a

member of a labor union,

and, if so, designate the

name of the union and its

local number, if any?"

(Juror Questionnaire, Tr. 1-2)

That juror's son's Local had a

long-standing animosity toward the

defendant because of some of his official

Union policies which the men thought

had discriminated against their Local

and had deprived them of work (Tr. 110).

Notwithstanding that the defendant

moved to set aside his convictions on

the grounds of juror misconduct based

on the juror, Battle's, failure to

disclose material information, the Trial

Court Judge overruled the Motion even

though the defendant represented that

he would have struck the juror Battle

from the Jury Panel had the informa-

been disclosed,

Thereafter, on August 28, 1981,

the Court sentenced the defendant as

follows: (1) a term of three years

imprisonment and a $5,000.00 fine on

Count One of the Indictment; (2) a term

of three years imprisonment and a

$5,000.00 fine on Count Two of the

Indictment, the term of imprisonment to

run concurrently with that imposed on

Count One; (3) a term of one year

imprisonment and a $5,000.00 fine on

Count Eight of the Indictment, the

imprisonment to run concurrently with

the sentences previously imposed; and

(4) a term of one year imprisonment and

a $5,000.00 fine cn Count Nine, the

imprisonment to run concurrently with

the sentences theretofore imposed.

Thereafter Billups appealed his

conviction to the United States Court

of Appeals For The Fourth Circuit, and

oral argument was held on April 1, 1982.

The Court of Appeals affirmed his

conviction by an Opinion entered and

filed on October 15, 1982 (App. 2a - 52a)

Thereafter Billups filed a Petition

For Rehearing And Suggestion For

Rehearing En Banc. By Order filed on

March 29, 1983, the United States

Court of Appeals For the Fourth Circuit

denied his Petition For Rehearing

(App. la). The Court of Appeals further

by Order entered on April 29, 1983

amended the Opinion previously rendered

herein (App. 53a - 54a)

de Statement of Facts

I. The Defendant, Myles E.

Billups, Sr., and the Port of Hampton

Roads

Myles E. Billups, Sr. is a 54 year

old native of the City of Norfolk. He

has been married 38 years with a family

of seven children (Tr. 2071).

Billups started working on the

docks in 1943 as a warehouseman and

member of the International Longshoreman's

Union (hereinafter "ILA"), and in 1975

was elected to the top labor port in

the port of Hampton Roads, namely,

International Vice President of the

ILA.

The Employers of the Port (Tr.

1680, 1684), are virtually unanimous in

their praise of Billups based on decades

of personal friendship and industry

relationships, and have described him

variously as a "vital link in our total

operation of the Port"; as being

responsible for an excellent" labor

climate in the Port of Hampton Roads,

which “measures favorably with any

Ports in the country” (Tr. 1684); and

as a man of "unblemished character".

Mr. Billups has never been convicted

of any criminal offense prior to the

charges leveled against him in this case.

II. The Unirac Investigation

The Indictment of the defendant was

part of a four year investigation known

as UNIRAC (Union Racketeering) conducted

by the Department of Justice, United

States Attorneys, the FBI and the

Internal Revenue Service for the entire

Atlantic Coast.

Some 2,000 tape recordings, both

consensual and non-consensual were made

by the Government as a part of that

investigation in New York alone. None

of those tapes were introduced by the

government and none of those 2,000

tapes in any way supported the charges

contained in the indictment returned

against Billups; and none of the

estimated 100 surreptitiously recorded

conversations in Hampton Roads were

introduced on behalf of the government.

10

As a part of the investigation

against Billups, the government themselves

initiated and created three meetings

involving Billups, William Montella and

John Marano, two admitted felons.

"Sonny" Montella, former general manager

of Quin Marine, a New York company

which opened a branch in Norfolk between

1974 and 1976, is a convicted extortionist.

He admitted that for years he had lied,

cheated, stolen money and made illegal

payoffs in New York, on the waterfront.

The other Government informer, John

R. Marano, was likewise a convicted

felon, who also became a government

informer to escape punishment for his

admitted crimes. Marano, a former

officer of Prudential Lines in New

York, admitted becoming "a part of

bribes and the cheating and the xickbacks

™ and the stealing" (Tr. 1083) from his

own employer and others; and, admitted

11

that he cooperated with the FBI to

avoid prosecution of multiple crimes

against him (Tr. 1130).

III. The "S.S. LASH PACIFICO"

Incident

Count One, under the Hobbs Act,

alleged an attempt by Billups to obtain

$10,000.00 from Marano, by extortion,

“induced by the wrongful use of fear".

In August, 1975, a Prudential

ship, the S.S. LASH PACIFICO, sustained

damage and could not load or unload any

barges. She was moved to Portsmouth,

for repairs, and on September 6, 1975,

was unloaded by Navy personnel, rather

than ILA longshoremen, which violated

the terms of an existing contract

between the ILA and the Hampton Roads

Shipping Association (Tr. 1773)

When the ILA members learned that

Prudential had violated their contract

they requested Billups to take the

12

matter to the Contract Board of the

Hampton Roads Shipping Association for

adjudication of their claim (Tr. 2129).

On September 9, 1975, there was a

regular meeting of the Board (Tr. 64)

attended by representatives of the

Shipping Association and the ILA. The

Board ruled that the work properly

belonged to the ILA and that "two gangs

should be paid for the time that that

work was performed" (Tr. 1527). That

ruling was an order to Prudential to

"Sit down and negotiate a settlement

with the Union" (Tr. 1780).

After "arms-length negotiation"

the opposing sides agreed on 50 hours

time being paid in accordance with the

Board's decision (Tr. 2134). Eventually

those hours multiplied out to $28,560.75

in wages at the prevailing rate (Tr. 1728).

The net amount, less deductions

for insurance taxes and assessments

13

(Tr. 1730) was paid during the second

week of November (Tr. 1735) to each

individual longshoreman, whose names

had been supplied to Nacirema by the

ILA. The remainder of the money that

had been deducted was vaid by Nacirema

to the proper recipients. Billups

received no money (Tr. 1731).

Marano testified that he told

Prudential's financial officer, one

Ytuarte, in New York, that the ILA's

claim "could be as high as $134,000.00"

(Tr. 992), but that it could be reduced

to $29,000.00, if a $10,000.00 payoff

was made to Myles Billups. Billups

denied any such conversation or request

for any money.

Marano further testified that

Billups was not asking for the money

from him “personally” (Tr. 994), but

from Prudential. So, Marano went to

Spiros Skouras, who has been President

14

of Prudential Lines, for over 20 years

(Tr. 1993).

Skouras testified that Marano told

him initially about the repairs to the

Lash Pacifico (Tr. 1998), but that ina

second conversation Marano told him

that the company, Prudential, was going

to be subjected to "large penalties"

for non-compliance with the contract

(Tr. 1998); however, Marano advised

that he could "handle it" if Mr. Skouras

made Prudential funds "available for

him to handle it under the table" (Tr.

1998).

Mr. Skouras took that to mean that

Marano was requesting funds "to make a

bribe" (Tr. 1998), and he told Marano

that such a payment was "out of the

question"; that it was "an illegal act”

and that he, Skouras, would not be a

party to it (Tr. 1999). Skouras did

not agree to or authorize Marano's

making any such payment, but on the

contrary directed Marano not to do so.

(Tr. 1999).

Then, contrary to instructions and

directions of the President of Prudential

Liens, Marano together with another

employee, Mark Cappell, another convicted

felon who admittedly had stolen also

from his employer, Prudential, (Tr.

1445) planned with Marano to raise

$10,000.00 in cash.

They contacted Lawrence C. Howard,

Jr., then President of Nacirema Operating

Company, whose office and home was in

New York; and on November 26, 1975,

(long after the ship had been unloaded,

repaired and was back in service and

had sailed out of the port of Hamptor

Roads (Tr. 1167) Howard withdrew

$10,000.00 from his own personal account

(Tr. 1311) and delivered a personal

check to Cappell for a “loan” on that

16

same day (Tr. 1313). Later that day,

Chappell quickly abandoned efforts to

have the check cashed because the bank

officials were asking him too many

questions (Tr. 1439). Although Marano

was "very anxious” to have the check

cashed (Tr. 1440) Cappell returned the

check to Howard (Tr. 1441) and made no

further efforts to ever raise the

$10,000.00 (Tr. 1441).

Billups went to New York in November

for a meeting at ILA International

Headquarters (Tr. 2144) as he had done

many times for Union business. On

this occasion he had a meeting at

headquarters with Union lawyers, which

was the sole reason he traveled to New

York. While there he called Marano, as

Marano had suggested he do whenever he

was "in town" (Tr. 2144) and later met

him. No money was in any way requested

of Marano for or received by Billups

(Tr. 2145).

IV. The Wienerwald Restaurant

Incident

Count Eight, alleging a violation

of Title 29 U.S.C. 186(b), a Taft-

Hartley misdemeanor, arises out of

events in the Wienerwald Restaurant,

located in the Ramada Inn, 8th Avenue,

New York City on August ll, 1978.

When the FBI learned that Billups

was going to see Montella on routine

Union business they made plans to have

a microphone placed on Montella and

directed Montella to take $2,000.00

that they gave him and give it to

Billups (Tr. 617).

Montella and the FBI agents

disagreed. Montella told them that he

did not feel it was fair. He told the

FBI agents that Billups had never called

him for money; that Billups had never

asked him for money and that he, Montella,

18

"don't think it's right that I should

give him money” (Tr. 617).

Nevertheless, Montella was required

to act as requested by the FBI and he

met Billups for breakfast on the morning

of August llth.

They were seated in a booth in the

Wienerwald Restaurant and the resulting

tape of that conversation is replete

with the loud background noise of

dishes, utensils, etc. FBI Agent Wayne

Smith testified that from 20 feet away

(Tr. 898) he heard the "noise" of the

envelope (Tr. 903).

Montella testified that he gave

money to Billups during their conversation

in the restaurant. Billups denied that

he took or accepted any money from

Montella, and that when Montella did

take an envelope out of his pocket and

placed it on the table (Tr. 2116) and

said something to Billups like "Myles,

19

there is - - take this" (Tr. 2116);

that he, Billups, gestured in a negative

way to him, shook his head (Tr. 2116)

and took nothing.

V. The Omni Hotel Incident

Count Nine likewise charges a

violation of 29 U.S.C. 186(b), the

facts concerning which arise out of a

social meeting between Montella, Billups

and one Frank Marrone, who was then an

employee in Norfolk of Montella's Quin

Marine. Montella testified that he

arrrived alone and met Billups alone at

which time he virtually immediately

handed him an envelope with money.

Billups denied ever being with Montella

alone at that social meeting, but stated

that Frank Marrone was with Montella

when Billups joined them and that the

three remained in each other's presence

during the entire time that Montella

allegedly passed an envelope to Billups

20

at the beginning of the conversation.

That meeting, having been directed

and arranged by the FBI, was fully and

completely witnessed and surveilled by

seven FBI agents (Tr. 2013) who were

stationed in and around the hotel

before, during and after the social

gathering occurred. None of them ever

witnessed an envelope or anything

passing to Billups.

ARGUMENT

I. THIS CASE PRESENTS A SERIOUS,

COMPELLING, AND IMPORTANT CON-

STITUTIONAL QUESTION OF FIRST

IMPRESSION AS TO WHAT THE PROPER

VENUE IS FOR A PROSECUTION UNDER

18 U.S.C. §186(b) OF THE TAFT-

HARTLEY ACT.

Count Eight of the Indictment in

the case at bar charges, in pertinent

part, that "in the Eastern District of

21

Virginia and elsewhere, the defendant

- .-did...receive, accept, and

agree to receive and accept" money from

immunized Government informant Montella

in violation of §186(b)(1)(d) of the

Taft-Hartley Act. (App. 7la) (emphasis

added). The only proof adduced by the

Government in support of Count Eight

was exclusively confined to alleged

acts which occurred entirely in New

York City, not located within the

Eastern District of Virginia.

(App. 44a-45a).

In spite of the fact that the

Government produced absolutely no proof

that any of the acts alleged in violation

of the statute occurred in the Eastern

District of Virginia, the Trial Court

overruled defendant's Motions for a

judgment of acquittal on the basis of

improper venue, made at the conclusion

of the Government's evidence, and

renewed at the conclusion of all of

the evidence, and after the verdict,

reaching the heretofore unprecedented

holding “that venue for prosecutions

under 29 U.S.C. §186(b)(1) is proper in

districts where commerce was ‘affected'

[by the receipt of the money] regard-

less of where payment took place."

(App. 45a-46a).

The Trial Court rested its novel

holding on the tenuous "fact that the

working relationship between Quin Marine

[Montella's New York-based company] and

Billups was focused on the Hampton

Roads area." (App. 45a-46a).

In respectfully submitting to this

Court that this case presents a compel-

ling opportunity for this Court to

settle the unprecedented question of

what the proper venue is for an alleged

violation of the Taft-Hartley Act, the

Petitioner respectfully directs the

23

Court's attention to several critical

observations made by the Fourth Circuit

in its Opinion.

First, the Fourth Circuit noted

that "[VJenue in a federal criminal

case is an issue of constitutional

dimension," citing Article III and the

Sixth Amendment of the United States

Constitution, and noting that the

constitutional underpinnings of venue

in federal criminal cases are implemented

by Federal Rule of Criminal Procedure

18. (App. 46a-47a).

Second, the Fourth Circuit observed

that "(t]he critical inquiry in this

case is deciding where the crime alleged

was committed, since 29 U.S.C. §186(b)

does not by its terms specify the situs

of the offense there defined." (App.

47a).

Third, the Fourth Circuit commented

on the unprecedented and novel nature

24

of the question presented:

Neither we nor any other circuit

have considered the question of

whether venue for trial of a

Section 186 violation lies ina

district where commerce has been

affected by an illegal offer or

acceptance completed in another

district.

(App. 49a).

Fourth, for the first time in

Federal Criminal Jurisprudence, a United

States Court of Appeals has made the

heretofore unknown comparison of

equating the same venue rationale under

18 U.S.C. §1951, also Known as the

Hobbs Act, and the Taft-Hartley Act, in

spite of the fact that the Fourth

Circuit acknowledges "the widely

differing purposes of the Hobbs Act

and the Taft-Hartley Act," (App. 5la)

holding that:

The same venue rationale, then,

applies to this Taft-Hartley

violation as applies to a Hobbs

Act violation. Venue lies either

wherever commerce is affected

25

or wherever the proscribed act

occurs.

(App. 52a).

The Fourth Circuit reaches this

result by twisting the statutory under-

pinnings of the Hobbs and Taft-Hartley

Acts. The Fourth Circuit reasons that

"a sine qua non of a section 186(b)

violation is that the forbidden act

affect commerce." Id. at 29. Since

the Hobbs Act contains an element "that

such extortion or attempted extortion

affect interstate commerce," (App. 5la)

the Fourth Circuit reasons that the

more expansive venue provisions under-

lining the Hobbs Act must also apply to

the Taft-Hartly Act, citing United

States v. Floyd, 228 F.2d. 913 (7th

Cir.), cert. denied, 351 U.S. 938 (1956)

as primary authority therefor. However,

a close reading of Floyd, supra, clearly

reveals that Floyd, supra, rested its

broad venue holding us to the Hobbs Act

on the authority of 18 U.S.C. §3237, a

special venue statute for offenses

involving transportation and interstate

commerce permitting prosecution "in any

district from, through, or into which

such commerce moves..." Floyd, supra,

at 918-19. The Floyd, supra, Court's

holding is directly linked to the

language of the Hobbs Act itself, such

Similar language not being found on the

face of the Taft-Hartley Act, which

language requires that the extortion or

attempted extortion “obstructs, delays,

or affects sseiciiianails: making such a

result a clear jurisdictional element

of the offense, and bringing it within 18

U.S.C. §3237. 29 U.S.C. §186(b) on the

other hand, only requires a receipt,

and no Court has ever interpreted

Section 186(b) venue in the fashion in

which the Fourth Circuit has twisted

27

the limited holding of the Floyd, supra,

opinion.

Petitioner respectfully submits

that the Taft-Hartley Act is a very

important congressional statute, which

has frequent application throughout the

federal courts, and has far-reaching

impact on the day-to-day interaction of

management and labor in every facet of

American business. That the question

of where the proper venue for a prose-

cution under this act lies is unsettled

and has been given a novel, first

impression interpretation by the Fourth

Circuit, requires the careful scrutiny

of this Court to ensure that constitu-

tional rights and policy have not been

breached.

That the District Court devoted

considerable attention in its post-

trial memorandum to this novel question,

commenting at page 13 that "I have only

28

found three cases dealing with venue

under Taft-Hartley; none is directly

applicable here," further supports

the compelling need for clarification

of this constitutional question by

this Court.

II. THIS CASE PRESENTS AN IMPORTANT

QUESTION OF STATUTORY INTER-

PRETATION OF A WIDELY-USED

CONGRESSIONAL STATUTE, 18 U.S.C.

§1951, ALSO KNOWN AS THE HOBBS

ACT.

Count One of the Indictment in the

case at bar charged that Billups

violated 18 U.S.C. §1951, also known

as the Hobbs Act, "by extorting and

attempting to extort $10,000.00 from

Marano [another immunized Government

informant] ‘induced by the wrongful use

of fear.'" (App. 38a).

The Government's principal witness

29

on this point, and the alleged victim

of the extortion, testified that he

""really couldn't say there was fear'"

in his dealings with Petitioner.

(App. 38a)

Although the Government attempted

to rehabilitate the witness through re-

direct examination, the following

colloquy is the most that the Government

was able to glean from this crucial

witness who just had testified that

he "‘really couldn't say there was

fear'":

Q. When you were dealing with Mr.

Billups in November and December

of 1975 did you and Prudential

have any fear, any economic

concerns in your dealings with Mr.

Billups?

A. Well, the problem was we wanted

to conclude the agreement with Mr.

Billups so that we had no problems

with the ILA in Norfolk.

(App. 39a)

In spite of Petitioner's Motions

for a judgment of acquittal as to Count

One, the District Court and the Fourth

Circuit held that Count One was suffic-

iently supported by the evidence to be

submitted to the jury under an extortion

theory.

This case presents an important

question of statutory interpretation as

to the Hobbs Act, as to whether or

not asserted "economic fear" becomes so

speculative, tenuous, remote, and

slight, as to be insufficient as a

matter of law to support an extortion

theory submitted to the jury.

In addition, this case presents an

important question of statutory inter-

pretation as to the critical distinc-

tions between an alleged extortion, a

much more serious offense, and an

alleged bribe, less serious than an

alleged extortion. As the Fourth

Circuit noted:

31

. Given the fact that Morano

initiated dealings with Billups,

it is arguable that the crime

involved here was bribery, not

extortion.

(App. 4la)

In light of the wide application

of the Hobbs Act in Federal Criminal

Procedure, and in light of the fact

that this is an area of heretofore

unarticulated holdings by this Court,

as evidenced by the necessity of the

Fourth Circuit to cite only Courts of

Appeal cases, and in one critical

instance, a District Court opinion,

(App. 4la), Petitioner respectfully sub-

mits that this is a compelling and ripe

ground for review by this Court.

III. THIS CASE PRESENTS A VERY

IMPORTANT QUESTION REGARDING

PETITIONER'S CRITICAL RIGHT TO

PEREMPTORY JURY CHALLENGES, ON

WHICH QUESTION THERE IS SQUARE

CONFLICT BETWEEN SEVERAL CIRCUITS.

32

During the voir dire of the pro-

spective jury panel, one juror, who

later served on the jury, failed to

disclose, when under a duty to do so,

that her son had recently been a member

of an ILA local, which local was known

by Petitioner to be extremely hostile

to Petitioner due to certain labor

rulings made by Petitioner in the

ordinary course of his busines responsi-

bilities (App. 12a - 14a).

Although the District Court

"concluded that Battle's [the juror in

question] omission was inadvertent,"

(App. 16a) (emphasis added), the fact

that the Fourth Circuit characterizes

the juror's failure to disclose as an

"omission" indicates that it is indis-

putable that the juror did fail to

disclose information during voir dire

when required to do so.

Petitioner respectfully submits

that the Petitioner's right of peremptory

challenge has been held by this Court

to be "one of the most important rights

secured to the accused." Pointer v.

United States, 151 U.S. 396, 38 L.Ed.

208 (i894).

Petitioner cited substantial cases

in his Brief to the Fourth Circuit,

holding that where a prospective juror

fails to disclose, whether inadvertently

or otherwise, "a material fact, which,

if disclosed, would probably have caused

counsel to strike him from the jury,"

Carpenter v. United States, 100 F.2d

716, 717 (D.C. Cir. 1938), or where the

juror's "silence" on voir dire misled

counsel and "had the effect of nullifying

the right of peremptory challenge,"

Consolidated Gas and Equipment Company

of America v. Carver, 257 F.2d lll, 115

(10th Cir. 1958) then "a new trial

34

should ordinarily be granted."

Carpenter, supra, at 717. See Photostat

Corp. v. Ball, 338 F.2d 783, 786 (10th

Cir. 1964) ("right of challenge includes

the incidental right that the information

elicited on the voir dire examination

shall be true."); see generally Frazier

v. United States, 335 U.S. 497 (1948).

Furthermore, the Fourth Circuit

initially issued an Opinion in which

the Court noted that since Petitioner's

attorneys had not claimed that "they

would have utilized a peremptory

challenge to strike" this juror "had

this information been known" at the

time of voir dire, that Petitioner's

claim "must stand or fall on a con-

clusion that juror Battle was incapable

of rendering an impartial verdict."

(App. 53a - 54a)

However, aS a result of Petitioner's

Petition for Rehearing to the Fourth

35

Circuit, the Fourth Circuit issued a

corrected Opinion in which that cited

language and that entire paragraph

referring to that language was deleted,

since Petitioner respectfully directed

the Fourth Circuit's attention to

portions of the record where Petitioner's

counsel had, in fact, represented that

they would have utilized a peremptory

challenge if this information had been

Known (App. 53a - 54a).

Nevertheless, the Fourth Circuit

did not grant rehearing, and made no

effort to address the compelling points

in the above-cited cases submitted to the

Fourth Circuit.

The result of the Fourth Circuit's

action in correcting its Opinion, and

its silence on this point, bring the

Opinion into square conflict with the

other decisions of other circuits as

cited above.

This intercircuit conflict is

especially troubling in light of the

Fourth Circuit's reliance on this

Court's recent opinion in Smith v.

Phillips, 50 U.S.L.W. 4190, 4192 (Jan.

25, 1982), to hold that so long as

Petitioner was given a chance to prove

actual bias, no other asserted grounds

for exvror in jury selection are mean-

ingful. Accordingly, in granting

certiorari to the Petitioner, this

Honorable Court would be addressing an

important intercircuit conflict on a

question that presents itself in every

jury trial, that is, the scope and

breadth of a defendant's right to

peremptory challenge, in the additional

context of clarifying this Cours't

Opinion in Smith, supra.

IV. THIS CASE PRESENTS AN IMPORTANT

QUESTION OF STATUTORY INTER-

37

PRETATION REGARDING THE NOVEL

APPLICATION BY THE FOURTH CIRCUIT

OF UNDERLYING NEW YORK STATE LAW

TO 18 U.S.C. §1952 (THE TRAVEL

ACT) IN HOLDING THAT THERE WAS

SUFFICIENT EVIDENCE TO SUPPORT

THE SUBMISSION OF THAT CHARGE

TO THE JURY.

Count Two of the Indictment in the

case at bar charges, in pertinent part,

that the Petitioner "did travel in

interstate commerce from the Eastern

District of Virginia to New York with

the intent to promote...an unlawful

activity, said unlawful activity being

bribery, in violation of the New York

Penal Code," in violation of Title 18

U.S.C. §1952(a)(3). (App. 65a) (emphasis

added )

In holding that there was sufficient

"evidence from which the jury could con-

clude that Billups travelled...to New

York intending...to illegally receive

money in order to favorably exert his

influence within the ILA," (App. 27a)

at 16, the Fourth Circuit made a here-

tofore unprecedented interpretation for

Travel Act purposes of the underlying

New York State bribery law by holding

such bribery encompassed bribe receiving:

BRIBING A LABOR OFFICIAL

A person is guilty of bribing a

labor official when, with intent

to influence a labor official in

respect to any of his acts,

decisions or duties as such labor

official, he confers, or offers or

agrees to confer, any benefit upon

him.

New York Penal Law §180.15 (McKinney

1975).

BRIBE-RECEIVING BY A LABOR OFFICIAL

A labor official is guilty of

bribe-receiving by a labor official

when he solicits, excepts or agrees

to accept any benefit from any

other person upon an agreement or

understanding that such benefit

will influence him in respect to

any of his acts, decisions, or

duties as such labor official.

New York Penal Law §180.24 (McKenney

1975).

39

Accordingly, in light of the fact

that the Fourth Circuit has reached a

novel interpretation of New York State

law, which is crucial to the Travel

Act, the Petitioner respectfully submits

that important questions of statutory

interpretation are presented in the

Travel Act, a widely used federal

criminal statute, as well as compelling

questions about Petitioner's due process

rights to be judged on the same crime

charged in the Indictment, to-wit, the

giving of the bribe, and not some

different crime not charged in the

Indictment, to-wit, the receipt of a bribe.

CONCLUSION

For the foregoing reasons, the

Petitioner respectfully submits that

40

the Petition for Writ of Certiorari to

this Honorable Court should be granted.

Respectfully submitted,

MYLES E. BILLUPS, SR.

By

O unsée

Stanley E. Sacks, Esquire

Andrew M. Sacks, Esquire

SACKS, SACKS & LARKIN

405 F & M National Bank Building

Norfolk, Virginia 23510

Counsel for Petitioner

41

APPENDIX

INDEX

Page

ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE

FOURTH CIRCUIT DENYING

A PETITION FOR REHEARING ..... la

AMENDED OPINION AND JUDGMENT

OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH

46 ty nn a a a ee ee a a ee

ORDER REFLECTING AMENDMENT

OF THE OPINION OF THE

UNITED STATES COURT OF

APPEALS FOR THE FOURTH

CIRCViT ce «+ © @ © eo eo we wee lle CU

TITLE 18 U.S.C. §1951 . «© « « « « « 55a

TITLE 18 U.S.C. $1952 . « « « «© « « 9Ga

TITLE 29 U.S.C. §186(b) . .«. «© « « « 608

INDICTMENT FILED NOVEMBER

20, 1980 IN THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA,

NORPOLK DIVISION ...+.e« +c « « 628

la

Appendix

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-5213

United States of America, Appellee,

versus

Myles E. Billups, Sr., Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at

Norfolk. Walter E. Hoffman, District Judge.

Upon consideration of the appellant's

petition for rehearing and suggestion for

rehearing en banc, and no judge having

requested a poll on the suggestion for

rehearing en banc,

IT IS ADJUDGED and ORDERED that the

petition for rehearing is denied.

Entered at the direction of Judge

Sprouse for a panel consisting of Judge

Sprouse, Judge Butzner, and Judge Kiser.

Filed FOR THE COURT,

Mar 29 1983

US Court of : ;

Appeals William K. Slate, II

Fourth Circuit CLERK

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-5213

United States of America,

Appellee,

Vv.

Myles E. Billups, Sr.,

Appellant.

Appeal from the United States District

Court for the Eastern District of Virginia,

at Norfolk. Walter E. Hoffman, District

Judge.

Argued: April 1, 1982 Decided: October 15, 1982

Before BUTZNER and SPROUSE, Circuit Judges,

and KISER, * District Judge.

Stanley E. Sacks, Andrew M. Sacks (James C.

Lewis, Sacks, Sacks & Larkin on brief) for

Appellant; Justin W. Williams & Theodore S.

Greenberg, United States Attorneys. (Elsie

L. Munsell, United States Attorney and

Phillip Krajewski, Assistant United States

Attorney, on brief) for Appellee.

*Honorable Jackson L. Kiser, United States

District Judge for the Western District of

Virginia, sitting by designation.

CORRECTED OPINION, PAGE 9, DELETED FIRST PARAGRAPH

SPROUSE, Circuit Judge;

Myles Billups, Sr. appeals his multiple

convictions, entered after a jury trial,

for violating the Hobbs Act, 18 U.S.C.

§1951, the Travel Act, 18 U.S.C. §1952(a) (3),

and for two violations of the criminal pro-

visions of the Taft-Hartley Act, 29 U.S.C.

§186(b) (1).+ He challenges the venue of

the district court on one Taft-Hartley

count, certain evidentiary rulings of the

trial judge, comments made by the judge in

the jury's presence, the district court's

refusal to grant a new trial based on juror

prejudice, and the government's withholding

of allegedly exculpatory material. He also

appeals the trial court's denial of a judg-

ment of acquittal on the Hobbs Act count,

lpillups was Originally indicted under

a ten-count indictment. At trial, two Taft-

Hartley counts were dismissed. The jury

rendered not guilty verdicts on two counts

alleging Taft-Hartley violations, and on

Single counts alleging violations of the

Hobbs and Travel Acts.

4a

alleging that the government failed to prove

that statute's requisite "fear" element. We

affirm.

Le

Billups was an International Vice-

President of the International Longshore-

men's Association (ILA) at Norfolk,

Virginia, obtaining that post after many

years of work and union activity on the

waterfront. In essence, the government's

case charged that Billups abused his office

through a series of illegal transactions

involving extortion and the receipt of

payoffs from maritime employers operating

in the Norfolk/Hampton Roads area. More

specifically, the Hobbs Act and Travel

Act charges against Billups were based on

incidents relating to his extortion of

funds from a waterfront employer in order

to "settle" a claim relating to the unload-

ing of a freighter by nonunion labor - the

5a

Lash Pacifico transaction. The Taft

Hartley counts were based on Billups’

activity in furnishing ILA longshoremen

to a stevedoring company in the Hampton

Roads area - the Quin Marine dealings.

The Lash Pacifico Transaction

In August 1975, the ship S. S. Lash

Pacifico, a freighter owned by Prodential

Lines, encountered difficulty unloading

at Norfolk port and had to be unloaded at

the Portsmouth, Virginia, naval yard by

Navy personnel. In due course, the ILA

claimed a contractual violation by

Prudential for this work performed by

non-ILA members. John Marano, a former

executive vice-president of Prudential,

testified that he contacted Prudential's

stevedoring contractor, Nacirema, and was

told that the union's claim for wages

could be limited to $29,000, but that Myles

Billups would have to be contacted to

6a

arrange this. Marano notified his superior

at Prudential of this, indicating that the

ILA claim could possibly run upwards of

$130,000. In September 1975, Marano tele-

phoned Billups and, according to Marano,

Billups stated that the claim could be

reduced upon the payment to him of $10,000.

Marano met with Prudential's board chair-

man, Spiros Skouras, who told Marano to

"handle" the matter, but that Prudential

would not be a party to illegal activity.

Nevertheless, Marano again contacted

Billups, who indicated a desire to deal

directly with Prudential in this matter

and in cash.

Shortly thereafter, Billups notified

Marano that he would be in New York and

would stop to see him. Marano and a

confederate, Mark Cappell, contacted

Howard, a Nacirema official, asking that

Nacirema inflate its future bills to

Prudential, thus generating the money

7a

allegedly needed to bribe Billups. After

initially rebuffing the plan, Nacirema's

president agreed and gave Chappell a check

for $10,000. Upon encountering difficulty

in cashing the check at a New York bank,

Chappell gave it to Marano, who then

attempted to give it to the appellant.

Billups refused the check, insisting on

cash, and castigated Marano for "dragging

his feet" in raising the $10,000.

Marano testified that Billups con-

tinually reminded him of this $10,000

"debt," and in an effort to raise the

funds, Marano padded his expenses from a

business trip to Morocco. In December,

1975, Marano met with Billups at Prodential

headquarters in New York and delivered

$4,000 in cash to him.

Marano left employment at Prudential

shortly thereafter, and became an under-

cover agent after FBI agents confronted

him with evidence of other waterfront

crimes in which he was involved. At the

FBI's behest, Marano arranged to meet with

Billups in Norfolk, and deliver $1,000,

purportedly to "make good" on the Lash

Pacifico deal. Marano was equipped with

an electronic recording devise, and tapes

of the Billups/Marano meeting were used

as evidence at Billups' trial.

Billups at trial presented a different

picture of these transactions. He denied

receiving or requesting any money from

Prudential or Marano, and contended that

Marano had approached him and offered to

donate $10,000 to an ILA charity as a

token of appreciation for the handling of

the Lash Pacifico incident. According to

Billups, none of this was necessary, as

the Contract Adjustment Board in Norfolk

had set the ILA's Lash Pacifico claims at

$29,000. Billups testified that he told

Marano that if he cared to make such a

donation, a $5,000 gift to the Eastern

Virginia Medical School would be adequate,

and that he refused a $10,000 check from

Marano because it was not made out to the

medical school. At trial, Billups denied

that statements recorded during the con-

versation with Marano were his, and denied

any involvement in the solicitation or

receipt of money for influencing the ILA

actions regarding the Lash Pacifico

incident. The jury, however, found

Billups guilty of one Hobbs Act violation

and one violation of the Travel Act.

The Quin Marine Dealings

Quin Marine is a New York-based con-

cern which provides support services to

shipping companies, and in 1976, it

expanded its operations to the Norfolk,

Virginia, waterfront. In order to operate,

Quin Marine found it necessary to secure

a "work gang," a regularly assigned crew

of ILA members. According to its general

manager, William "Sonny" Montella, Quin

Marine was initially rebuffed in these

efforts by the local ILA. Montella

testified that he contacted Billups for

assistance, and that after Billups spoke

on its behalf, Quin Marine obtained the

needed work gangs. Montella further

testified that shortly thereafter, he

met Billups at the Omni Hotel in Norfolk

and offered him $500 as "gratuity" for

his help. Montella stated that although

initially reluctant Billups took the

money.

In the fall of 1977, Quin Marine was

faced with a potential wildcat strike by

ILA container repairmen. Montella

stated that he met with Billups, who then

"corrected" the problem. Montella testi-

fied that he thereafter gave Billups

$1,000 in cash as a token of appreciation,

and that he gave Billups a second $1,000

“gratuity” in January 1978, in accord with

lla

the waterfront "tradition" of Christmas

gratuities from employers to ILA leaders.

Montella's involvement in illegal

payments to labor and management officials

on the waterfront was discovered by the

FBI, and in May 1978 he became an under-

cover agent. He met with Billups at the

Wienerwald restaurant in New York City

in August 1978 and passed him an envelope

containing $2,000. During the meetina,

Montella was equipped with an electronic

tape recorder and was observed by an FBI

agent. Montella met with Billups under

Similar circumstances at the Omni Hotel

in Norfolk in October 1978 and gave him

an envelope containing $1,000. At trial,

Billups denied taking money and denied

that it was his voice on the tapes of the

purported Montella meetings introduced at

trial. Billups' two Taft-Hartley convic-

tions were based on these August and

October transactions.

12a

A.

Billups contends on appeal that the

nondisclosure of certain information by

a juror during voir dire denied hima

fair trial, and that his conviction there-

fore violated the fifth and sixth amend-

ments.

Due to the large amount of publicity

surrounding Billups' trial, the district

judge required each prospective juror to

complete a written questionnaire, and

submit to oral examination (in groups of

four or five) in chambers. One written

question asked "[a]re you or any immediate

member of your family a member of a labor

union, and, if so, designate the name of

the union and its local number, if any."

Another question asked "[h]Jave you or any

immediate member of your family ever been

employed or done business with anyone in

the waterfront industry?" The juror in

13a

question, Jadis Battle, gave a "no" response

to the first question and a "yes" answer to

the second.

Other prospective jurors in Battle's

group asked the trial judge in chambers

whether the question meant "currently"

a member of a union, or "ever had been" a

union member -- commenting that retired

members of their families had been in a

union. The judge noted their responses

and "amended their answers accordingly."

Battle said nothing during or after this

colloguy, neither the prosecutors or

Billups' attorneys questioned her, and

she was selected to serve on the jury.

After the trial, Billups discovered that

Battle's son William was in fact a member

of the ILA, albeit unemployed as a long-

shoreman, at the time of the voir dire.

A post-trial evidentiary hearing was held

by the district judge, during which Battle

was interrogated both by the judge and

counsel. She testified that at the time

of voir dire, she thought her son was a

former member of the ILA, but later dis-

covered he was in fact an inactive member,

not in good standing for failure to pay

his dues. The defense moved for a new

trial on the ground of juror misconduct,

contending that Battle heard other pros-

pective jurors ask whether the question

meant "current" or "current and past"

union membership, and by her silence con-

cealed a "material fact." They further

argued that there was animosity between

William Battle's local union and Billups,

and that William Battle told an associate

that Billups "was getting what was coming

to him." William Battle did not testify

at the post-trial hearing.

The appellant first argues that since

juror Battle is related to someone who

might be biased against Billups, she is

presumed to be biased. He next contends

15a

that the juror's failure to speak up and

amend her answers at voir dire was tanta-

mount to deliberate concealment, a sure

indicium of bias. Finally, he maintains

that even if the omission was uninten-

tional, a new trial is necessary to pre-

serve the "fairness" of the jury system.

The Supreme Court recently examined

the problem of alleged juror misconduct

discovered after conviction, and declined

to hold that any "implied bias" automati-

cally requires a new trial. The Court

concluded instead that a post-trial hear-

ing affording the defendant an opportunity

to prove actual bias fulfills the require-

ments of due process. Smith v. Phillips,

50 U.S.L.W. 4190, 4192 (Jan. 25, 1982).

That was precisely the procedure followed

in this case. At the post-trial hearing,

Judge Hoffman and attorneys for Billups

and the government interrogated Battle,

and Billups had the opportunity to present

16a

testimony bearing on her ability to

render an impartial verdict.

A review of the record indicates that

Judge Hoffman concluded that Battle's

omission was inadvertent, and that while

her son conceivably could have been pre-

judiced against Billups, there was no

showing that his alleged bad feelings

towards Billups poisoned juror Battles'

mind. See United States v. Bynum, 634

F.2d 768 (4th Cir. 1980). The record

Supports these conclusions, and we cannot

say that the district court erred in

finding that juror Battle did not harbor

"actual bias" against Billups.

B.

Billups next contends that the

government withheld exculpatory material

after he filed a request for it. He

argues that Prudential Lines conducted

an in-house investigation of Marano and

l7a

Chappell after Marano's employment termi-

nated, that the FBI knew of those investi-

gations and had received copies of at

least a portion of investigatory reports

which dealt with Marano and his dealings

at Prudential. He further argues that

such material is exculpatory in that it

supports an inference that Billups was

an unknowing dupe in a complex scheme,

engineered by Marano and Chappell, to

defraud Prudential. The government

responds that it was unaware of the

report, that the defense apparently knew

of it prior to trial, taking no steps to

acquire it, and that in any event, it

did not tend to exculpate Billups or

impeach the testimony of Marano.

It is true that when a specific

request for certain material has been

made the failure of the government to

respond is "seldom, if ever, excusable."

United States v. Agurs, 427 U.S. 97, 106

18a

(1976); Brady v. Maryland, 373 U.S. 82

(1963). Billups filed voluminous documents

prior to trial requesting the government's

release of Brady material. Although

these pretrial motions contained over 25

Brady requests, each was general in nature.

None requested Prudential reports in the

hands of the government, anc we cannot

construe any of the motions as generically

including the material in question. Chavis

v. North Carolina, 637 F.2d 213, 224

(4th Cir. 1980). Thus, the request was

not a "specific request for certain

material." Billups' challenge, therefore,

is viewed under the fule announced in Agurs,

supra, governing the voluntary production

or the production after a general request

for exculpatory material:

[I]f the omitted evidence creates

a reasonable doubt that did not

otherwise exist, constitutional

error has been committed. This

means that the omission must be

evaluated in the context of the

entire record. If there is no

19a

reasonable doubt about guilt

whether or not the additional

evidence is considered, there

is no justification for a new

trial. On the other hand, if

the verdict is already of

questionable validity, addi-

tional evidence of relatively

minor importance might be

sufficient to create a reason-

able doubt.

Id. at 112-13.

The material discovered post-trial

and produced for examination by the

district court consisted of documents

relating to the tax-evasion guilty ple

of Keith Nelson, a former Prudential

employee, in which he states that Marano

and Chappell were involved in payoff and

kickback schemes, and reports of one Billy

Carter, a private investigator hired by

Prudential, involving allegedly illegal

activities of Marano and Chappeil while

at Prudential, which were discovered in

the files ot the United States Customs

Service. Searches of the government's

archives both during and after the trial

20a

failed to produce any Prudential investi-

gative report dealing with Marano or

Billups.

There is substantial direct evidence

of Billups' accepting cash payments from

Marano. Marano freely admitted his past

wrongs while on the witness stand, so there

was little, if any, impeachment value in

the later-discovered material. The

material, if weighed with all the evidence,

would not have tended to create a reasonable

doubt that Billups sought and accepted

illegal payoffs from Marano. Therefore,

we cannot agree that constitutional error

occurred.

III.

Billups next argues that certain

comments of the district judge in the jury's

presence were prejudicial and denied him

a fail trial.

A critical link in the government's

2la

evidentiary chain was a series of audio

tapes of meetings between Billups and

Marano and meetings Billups and Montella.

At trial, Billups essentially denied that

certain inculpatory statements in the

recorded conversations were made by him

and testified that it was not his voice

on the tapes produced at trial. While

Billups was testifying, the following

colloquy took place:

The Court: Was anybody else

with you and Mr.

Marano at the time

of your meeting?

Mr. Billups: No sir.

The Court: Well, can you

recognize Mr.

Marano's voice?

Mr. Billups: Yes sir.

The Court: Well, who do you

think would be the

other voice, a

ghost?

Billups' attorneys objected to this exchange

the following day at a conference in the

judges' chambers. An offer of an immediate

22a

limiting instruction was refused by

defense counsel for tactical reasons, and

the trial judge at the close of the trial

gave the jury the following instruction:

The law does provide me the

privilege of commenting to the

jury on the evidence in the

case. Such comments are only

expressions of the judge's opin-

ion as to the facts and the jury

may disregard entirely, since

the jurors are the sole judges

of the facts. Probably during

the lengthy trial I have made

some statement perhaps in

attempted humor which would

possibly be construed by you as

a comment on the evidence in the

case. I now charge you in

addition to what I have just

stated that you should disregard

any comment by me during the

rial and prior to giving this

charge, as the law is clear that

the credibility of a witness is

solely for your determination.

In his post-trial memorandum, the

trial judge concluded that, in retrospect,

the remark "probably should not have been

made," but if it was error, the defendant

waived it by failing to object at the

first opportunity at which the jury was

not present. Federal Rule of Evidence

614 provides:

(a) Calling by court. The

Court may, on its own motion or

at the suggestion of a party,

call witnesses, and all parties

are entitled to cross-examine

witnesses thus called.

(b) Interrogation by court.

The court may interrogate witnesses,

whether called by itself or by a

party.

(c) Objections. Objections

to the calling of witnesses by

the court or to interrogation by

it may be made at the time or at

the next availabie opportunity

when the jury is not present.

The record discloses that Billups was the

last witness on the day in question, March

23, and when the trial resumed the next

day, March 24, he took the stand as the

first witness. The defense, therefore,

had two opportunities, at the end of the

day on the 23rd and at the beginning of

proceedings on the 24th, when the jury

was not present, to object to Judge

Hoffman's interrogation.

As the Advisory Committee's Notes

to Rule 614(c) make clear, the rule is

"designed to relieve counsel of the

embarrassment attendant upon objecting to

questions by the judge in the presence of

the jury, while at the same time assuring

that objections are made in apt time to

afford the opportunity to take possible

corrective measures." Billups attorneys,

by waiting until after his testimony to

raise the issue with Judge Hoffman defeated

the purpose of the rule by preventing the

contemporaneous correction of the preceived

error, and thus waived any objection on

appeal. Additionally, we have examined

the entire record and conclude that while

the court's remarks may have been impro-

vident, they did not deprive Billups of a

fair trial before an impartial judge and

jury, see United States v. Cole, 491 F.wd

1276, 1278 (4th Cir. 1974); United States

v. Cunningham, 423 F.2d 1269, 1276 (4th

25a

Cir. 1970), and that the judge's cura-

tive instructions served to assist the

jury in giving proper weight to his com-

ments.

IV.

Billups next contends that the

trial court erred in not granting his

motion for a judgment of acquittal on

the Travel Act count.2 The indictment

charged that Billups traveled to New

York in December, 1975, to meet Marano,

2 The Travel Act, 18 U.S.C. §1952,

provides in pertinent part:

(a) Whoever travels in inter-

state or foreign commerce or uses

any facility in interstate or

foreign commerce, including the

mail, with intent to --

(b) (2) [carry on] extortion,

bribery, or arson in violation of

the laws of the State in which

committed or of the United States.

26a

intending to engage in bribery in

violation of New York law, and that

he thereafterperformed acts in further-

ance of that unlawful activity. Billups

argues that while he did meet with

Marano in New York in December, his

intent when he began the interstate

trip controls, and that the purpose

of his trip was to conduct legitimate

union business.

A review of the record discloses

ample evidence from which the jury could

conclude that Billups travelled from

Virginia to New York intending to meet

with Marano and to illegally receive

money in order to favorably exert his

influence within the ILA. The trial

court therefore properly allowed the

jury to consider this count.

V.

Relying on Federal Rules of

Evidence 403 and 404,3 Billups next

challenges the admission of "prior bad

acts" evidence relating to two separate

series of incidents.

3 Rule 403.

EXCLUSION OF RELEVANT

EVIDENCE ON GROUNDS OF

PREJUDICE, CONFUSION OR

WASTE OF TIME

Although relevant, evidence may be

excluded if its probative value is

28a

At trial, the government introduced

testimony relating to the receipt by

Billups of a $500 gratuity from Sonny

Montella in October 1976 and of a $1,000

payment from John Marano in August 1977.

Each of these transactions had been the

subject of an indictment count that was

dismissed by the trial judge. The trial

judge ruled that the evidence was

relevant to show Billups' "opportunity"

to take payoffs and to show knowledge,

intent, motive and capacity. Billups

Footnote 3 continued:

substantially outweighed by the danger of

unfair prejudice, confusion of the issues,

or misleading the jury, or by considera-

tions of undue delay, waste of time, or

needless presentation of cumulative

evidence.

Rule 404.

CHARACTER EVIDENCE NOT

ADMISSIBLE TO PROVE

CONDUCT; EXCEPTIONS; OTHER CRIMES

(a) Character evidence generally.

argues that the opportunity or ability

to meet waterfront employees was conceded,

so admission on that ground was irrelevant.

Also, the limiting instruction to the

jury was confined to the opportunity

ground, rendering the court's other

justifications invalid.

The trial judge instructed the jury

at the time of Montella's testimony as

follows:

THE COURT: Now I say, ladies

and gentlemen of the jury, specif-

ically in this connection without

suggesting that there was or was

not any $500 that was transferred

from Mr. Montella to Mr. Billups I

want you to know that Mr. Billups

is not charged with any specific

offense involving the $500. The

main purpose of the admissibility

of this evidence is to show that

Footnote 3 continued:

Evidence of a person's character or

trait of his character is not admissible

for the purpose of proving that he

acted in conformity therewith on a

particular occasion, except:

(1) Character of accused. Evidence

such opportunity if any that you think

on the part of Mr. Billups may have had

by reason of that act in connection with

future acts, not for that act alone.

If the government's other evidence

was to be believed, it presented a pattern

of transactions between Billups and

Montella, and the challenged evidence

was clearly relevant to show the develop-

ment of a common plan or scheme. Billups'

argument focuses on the work "opportunity”

in the limiting instruction. While the

fact of his ILA office provides evidence

of “opportunity” to take money from

employers for union favors, thus diminishing

he need for further proof on that point,

Footnote 3 continued:

of a pertinent trait of his character

offered by an accused, or by the pros-

ecution to rebut the same;

(2) Character of victim. Evidence

of a pertinent trait of character of the

victim of the crime offered by an

accused, or by the prosecution to rebut

the same, or evidence of a character

trait of peacefulness of the victim

the instruction as a whole clearly con-

templates consideration of the $500.00

payment in light of the entire series of

transactions. We believe, therefore,

that the district court did not abuse

its discretion in admitting this testi-

mony.

Marano's testimony regarding his

payment to Billups of $1,000.00 on

August 1, 1977, was likewise admissible.

Marano testified that this payment was to

partially satisfy his $10,000.00 "debt"

to Billups, and was plainly relevant to

complete the picture of a “common plan

Footnote 3 continued:

offered by the prosecution in a homicide

case to rebut evidence that the victim was

the first aggressor;

(3) Character of witness. Evidence

of the character of a witness, as

provided in Rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts

or scheme." The evidence was relevant

and probative, and the limiting instruc-

tion to the jury, while not as complete

as it should have been, clearly stated to

the jury that it “cannot find him guilty"

for the August 1 transaction.

B.

Billups’ other “bad act" eviden-

tiary challenge relates to the rebuttal

testimony of Embri Stokes, the president

of an ILA local, that Billups solicited

payoffs from him over a long period of

time. Fourteen waterfront employers

had testified, during Billups' case in

Footnote 3 continued:

is not admissible to prove the character

of a person in order to show that he

acted in conformity therewith. It may,

however, be admissible for other pur-

poses, such as proof of motive, oppor-

tunity, intent, preparation, plan,

knowledge, identity, or absence of mis-

take or accident.

chief, that Billups never solicited

gratuities or payoffs from them in

return for his "services" as a union

leader. The Secretary-Treasurer of ILA

Local 1248 in Norfolk, testified that

Billups had a good reputation for

honesty, and related the manner in which

Billups ran union meetings so as to

preserve the appearance of "above board"

dealings. Billups on direct examination

denied soliciting or accepting "any-

thing" from waterfront employers. He

denied accepting “under the table” pay-

ments from employers or from local union

presidents, particularly Embr:i Stokes.

Stokes then testified on rebuttal

that, over the course of several years,

he gave Billups gratuities in exchange

for Billups' favorable action on the

issuance of additional port numbers,

settlement of jurisdictional disputes

and other actions benefitting Stokes'

local. Billups contends admission of

this testimony was error in that it

violated the express provisions of

Rule 404(b), was unduly prejudicial

under Rule 403, and was inadmissible

to impeach his general denials on cross-

examination.

This court met a similar con-

tention in United States v. Johnson, 634

F.2d 735 (4th Cir. 1980), cert. denied,

451 U.S. 907 (1981), and what we said

there is directly applicable here:

Particularly where, as here, a

defendant in a criminal case by

her own testimony and that of

others has deliberately soug.it

as the primary means of defense to

depict herself as one whose

essential philosophy and habitual

conduct in life is completely at

odds with the possession of a

state of mind requisite to guilt

of the offense charged, that

defendant may be considered in

effect to have forfeited any

protection that the first sentence

of the Rule might otherwise have

provided against the type of

"other act" evidence here challenged.

See Walder v. United States, 347

35a

U.S. 62, 74 S.Ct. 354, 98 L.Ed.

503 (1954).

Id. at 737-38. Balancing the probative

value of the challenged evidence against

its potential for prejudice to Billups'

defense, we hold that the trial judge

acted within his discretion in admitting

it.4

VI.

We find no merit in Billups' con-

tention that there was insufficient

evidence upon which to base the jury's

instruction of consciousness of guilt.

The Court informed the jury:

45illups further argues that Stokes'

testimony would only have been admissible

if he were an employer, a member of the

same "class" as the employer witnesses.

Not only do the facts in Johnson disarm

this argument, but it borders on the

incredible to urge that the fourteen

employer witnesses were presented to prove

that Billups was honest and upstanding

only as to employers. The direct evidence

of good character offered by Billups was

intertwined with the principal issue of

whether he extorted money. See United

36a

Without suggesting that there

was or was not an attempt to

suppress or fabricate evidence by

the defendant after a crime has

been committed, that, alone, is

not, of course, sufficient to

establish guilt. Of course either

the prosecution or its attorneys

or the defendant or his attorneys

have a perfect right to interview

prospective witnesses in any case.

You may consider evidence of such

attempts if it existed. However

along with the other evidence in

the case in determining guilt or

innocence, whether or not it

attempts the fabrication or

suppression of evidence showing

consciousness of guilt and a

Significance to be attached to

any such attempt are matters for

the jury to determine.

As we have previously state, "[t]he

law is well established that, in a criminal

case, evidence of a defendant's attempt

Footnote 4 continued:

States v. Benedetto, 571 F.2d 1246 (2d

Cir. 1978).

In light of our holding that Stokes'

testimony was admissible to rebut the

testimony of the employers presented in

Billups’ case in chief, we need not

address the propriety of its use to

impeach Billups’ testimony on cross-

examination. See United States v.

to influence a witness to testify regard-

less of the truth is admissible against

him on the issue of criminal intent."

United States v. Reamer, 589 F.2d 769,

770 (4th Cir. 1978), cert. denied, 440

U.S. 980 (1979). The testimony of

Charles Chambers, Nacirema's stevedoring

supervisor, provided sufficient evidence

to support the instruction. > He testified

that Billups approached him on two

occasions attempting to tailor Chamber's

version of Marano's contributions to

support Billups' position that they were

for charitable purposes.

Footnote 4 continued:

Pantone, 609 F.2d 675 (3d Cir. 1979).

>rurther support for this instruction

is found in United States v. McDougald,

650 F.2d 532, 533 (4th Cir. 1981), in

which we held that where the defendant

makes specific exculpatory statements

of fact which are later contradicted

at trial, the jury may infer from them

a consciousness of guilt.

38a

Vit.

The indictment charged that Billups

violated the Hobbs Act, 18 U.S.C. §1951,°

by extorting and attempting to extort

$10,000.00 from Marano "induced by the

wrongful use of fear." Billups argues

that there was insufficient evidence of

fear to sustain his conviction for

violating this section.

Billups bases his argument for re-

versal on John Marano's testimony, on

cross-examination, that he "really

couldn't say there was fear" in his

dealings with Billups. On re-direct

examination by the government the

following colloquy took place:

6rhe Hobbs Act, 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 com-

modity in commerce, by robbery or extor-

tion or attempts or conspires so to do,

Q. When you were dealing with Mr.

Billups in November and December

of 1975 did you and Prudential

have any fear, any economic con-

cerns in your dealings with Mr.

Billups?

A. Well, the problem was we wanted

to conclude the agreement with Mr.

Billups so that we had no problems

with the ILA in Norfolk.

The government contends that this testi-

mony, coupled with Marano's "genuine and

reasonable" fear that failure to pay

Billups the amount promised would lead

to labor unrest at Prudential was

sufficient to fulfill the Hobbs Act's

fear requirement.

Footnote 6 continued:

or commits or threatens physical violence

to any person or property in furtherance

of a plan or purpose to do anything in

violation of this section shall be fined

not more than $10,000.00 or imprisoned

not more than twenty years, or both.

(b) As used in this section--

(2) The term "extortion" means the

obtaining of property from another, with

40a

Fear of economic harm is, of course,

sufficient to sustain a Hobbs Act viol-

ation, United States v. Iozzi, 420 F.2d

512, 515 (4th Cir. 1970), cert. denied,

402 U.S. 943 (1971). The fear need not

be the consequence of a direct or implicit

threat by the defendant, United States v.

Duhon, 565 F.2d 345 (5th Cir.), cert.

denied, 435 U.S. 952 (1978), and the

government's burden of proof is satisfied

if it shows that the victim feared an

economic harm, and that the circumstances

surrounding the alleged extortionate

conduct rendered that fear reasonable.

United States v. Sander, 615 F.2d 215

(Sth Cir.), cert. denied. 449 U.S. 835

(1980).

Footnote 6 conintued:

his consent, induced by wrongful use of

actual or threatened force, violence,

or fear, or under color of official

right.

Given the fact that Marano initiated

dealings with Billups, it is arguable

that the crime involved here was bribery,

not extortion. See United States v.

Rabbitt, 583 F.2d 1014 (8th Cir.), cert.

denied, 439 U.S. 116 (1978); see generally

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

427-37 (3d Cir. 1979), cert. denied,

444 U.S. 1043 (1980), (Aldisert, J.,

dissenting). Hoever, bribery and

extortion are not mutually exclusive,

United States v. Furey, 491 F.Supp.

1048, 1057 (E.D. Pa. 1980), aff'd, 636

F.2d 1211 (3d Cir. 1981), and so long

as the defendant intends to exploit the

reasonable fear of the victim, Duhon,

supra, at 351, his actions will constitute

extortion under the Hobbs Act. The

jury was presented with sufficient

evidence from which it could conclude

that although Marano may have initiated

the payoff scheme,

the payment and

promises of payment to Billups were

the direct result of a perceived,

reasonable fear on Marano's part that

noncompliance with the deal already

struck could lead to Billups' economic

retaliation. /

VIII.

Finally, we disagree with

Billups' argument that venue in the

Eastern District of Virginia was improper

for trial of count eight of the in-

dictment alleging a violation of 29

U.S.C. § 186(b) (1).

we likewise find no merit to

Billups' contention that there was in-

sufficient evidence that the extortion

would “affect commerce." As we stated

in United States v. Santoni, 585 F.2d

667 (4th Cir. 1978), cert. denied, 440

U.S. 910 (1979), even a de minimis

effect on commerce resulting from a

Hobbs Act extortion is sufficient to bring

the charged criminal activity within the

statute. The evidence adduced at trial

was sufficient to prove that Prudential

was engaged in activities affecting

interstate commerce, and that the poten-

43a

A.

The indictment on which Billups

was convicted charged in pertinent part

that:

2. On or about August 11, 1978,

in the Eastern District of Virginia and

elsewhere, the defendant MYLES E. BILLUPS,

SR., being a representative of employees

who were employed in an industry affect-

ing commerce, to-wit, Vice-President of

the I.L.A., Vice-President of the Atalntic

Coast District Council of the I.L.A.,

President of Hampton Roads District

Council of the I.L.A., and President of

I.L.A. Local 1970, did knowingly,

willfully and unlawfully receive, accept,

and agree to receive and accept a payment

and delivery of money from William A.

Montella, a representative of Quin Marine,

the employer of such employees. (In

violation of Title 29, United States

Code, Section 186(b) (1) and (d).

The Taft-Hartley Act, 29 U.S.C. Section 186

(a) (1) and (b) (1), states in relevant

part:

(a) It shall be unlawful for any

employer or association or employers or

any person who acts as a labor relations

Footnote 7 continued:

tial payment of the $10,000 and the

actual payment of the $4,000 would

effect transactions in commerce.

44a

expert, adviser, or consultant to an

employer or who acts in the interest

of an employer to pay, lend, or deliver,

or agree to pay, lend, or deliver, any

money or other thing of value--

(1) to any representative of

any of his employees who are employed

in an industry affecting commerce; or

(b) (1) It shall be unlawful for

any person to request, demand, receive,

or accept, or agree to receive or

accept, any payment, loan, or delivery of

any money or other thing of value

prohibited by subsection (a) of this

section.

29 U.S.C. §186(a) (1), (b) (1).

The government's principal evidence

as to count eight of the indictment

was provided by the testimony

of William "Sonny" Montella. In

essence, Montella testified that while

he was in New York, Billups telephoned

him from New York and asked that they

meet. The meeting was arranged for

the Wienerwald Restaurant, also in New

York. At the restaurant, Montella

passed Billups an envelope containing

45a

2,000 in cash. The offer and acceptance

of the payment therefore was proved to

have occurred in New York. The proof

linking Billups' acceptance of the money

in New York with the Eastern District

of Virginia was the fact that the

working relationship between Quin Marine

and Billups was focused on the Hampton

Roads area -- admittedly sufficient

to show that commerce in the Hampton

Roads area was "affected" by the receipt

of the money . ® The trial court concluded

that venue for prosecutions under 29

U.S.C. §186(b) (1) is proper in districts

8the parties stipulated that

Montella's company, Quin Marine, was

engaged in commerce, and the jury was

instructed, apparently in reliance on

that stipulation, that:

it is not necessary for the Govern-

ment to prove that that act of receiving

or accepting such money took place in

Virginia. It is sufficient for the

Government to prove beyond a reasonable

doubt that the defendant took the money

46a

where commerce was thus "affected,"

regardless of where payment took place.

We agree,

B.

Venue in a federal criminal case

is an issue of constitutional dimension.

Article III guarantees a federal defendant

a trial “in the State where the said

Crimes shall have been committed" and

the sixth amendment provides him with

a "jury of the State and district wherein

the crime shall have been committed."

These fundamental guarantees have been

implemented by Federal Rule of Criminal

Procedure 18 which provides that

"[e]xcept as otherwise permitted by

statute or these rules, the prosecution

Footnote 8 continued:

and was at the time a representative

of ILA members employed in the Port

of Hampton Roads by Quin Marine Services.

It has already been stipulated, of

47a

shall be had in a district in which the

offense was committed." The critical

inquiry in this case is deciding where

the crime alleged was committed, since

29 U.S.C. §186(b) does not by its terms

specify the situs of the offense there

defined. See Johnson v. United States,

351 U.S. 215, 220 (1956). Since

Congress has not explicitly provided

for venue under section 186(b), the

Situs of the offense "must be determined

from the nature of the crime alleged

and the location of the act or acts

constituting it." United States v.

Anderson, 328 U.S. 699, 703 (1946). The

usual method for making this determina-

tion, one which we have consistently

approved, is an examination of the verbs

Footnote 8 continued:

course, that Quin Marine Services was

an industry affecting commerce.

48a

employed in the statute to define the

offense, United States v. Kibler, 667

F.2d 452, 454 (4th Cir.), cert. denied,

102 S.Ct. 2037 (1982); United States v.

Blecker, supra at 632; United States v.

Walden, 464 F.2d 1015, 1018 (4th Cir.),

cert. denied, 409 U.S. 867 (1972), 410

U.S. 969 (1973), although this method

is not exclusive. As Judge Hoffman

points out in his able opinion ruling

on this point in the district court

proceeding, there are crimes where the

situs is not so simple of definition.

So it is here -- we cannot so easily

garner and apply to the statute involved

all of the rationale of Article III,

the sixth amendment and Rule 18 from

one single verb. The protected interest

is in Virginia where commerce is affected,

however, and other basic venue considera-

tions flow from that reality.

Neither we nor any other circuit have

considered the question of whether venue

for trial of a section 186 violation

lies in a district where commerce has

been affected by an illegal offer or

acceptance completed in another district.

However, it has been held that venue for

a Hobbs Act violation will lie wherever

commerce is affected, ? and the government

contends that the same rationale applies

to this Taft-Hartley Act violation.

The Hobbs Act, 18 U.S.C. §195l(a),

covers a broad spectrum of crimes

affecting any activity in interstate

commerce, whereas section 186 of the

Taft-Hartley Act relates only to the

giving of anything of value by a person

9 united States v. Craig, 573 F.2d

513 (7th Cir.), cert. denied, 439 U.S.

820 (1978).

50a

of a specified class to representatives

of employees of an industry affecting

commerce. 1°

The courts construing congressional

intent as to venue in Hobbs Act violations

have determined that venue lies wherever

commerce is affected or wherever the

robbery, extortion, attempt, conspiracy

or threat occurs, Craig, supra; United

States v. Floyd, 228 F.2d 913 (7th Cir.),

cert. denied, 351 U.S. 938 (1956), and

the Seventh Circuit in Floyd concluded

that:

the [Hobbs Act extortion] offense

consists of two essential elements,

10 The Hobbs Act provides in pert-

inent 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 commits

or threatens physical violence to

any person or property in further-

ance of a plan or purpose to do

(1) extortion or attempted extortion,

and(2) chat such extortion or

attempted extortion affect interstate

commerce. In our judgment, and we

so hold, venue may be properly laid

either in the jurisdiction wherein

the coercion is perpetrated or

in that wherein commerce is affected

thereby.

Id. at 919.

We cannot agree with the government

that entire rationale of the opinion in

Floyd applies to the case sub judice

because of the widely differing purposes

of the Hobbs Act and the Taft-Hartley

Act. We do agree, however, that one

element of a section 186(b) Taft-Hartley

offense is that the "giving" must be

proved to be to a representative of an

employee of an industry affecting commerce.

In other words, if a donor or offerer

were to give or offer a thing of value

Footnote 10 continued:

anything in violation of this section

shall be fined not more than $10,000

52a

to a person other than a representative

of an employee of a commerce-affecting

industry, there would be no offense

under that section. Although worded

differently, a sine gua non of a section

186(b) violation is that the forbidden

act effect commerce. The same venue

rationale, then, applies to this Taft-

Hartley violation as applies to a Hobbs

Act violation. Venue lies either

wherever commerce is affected or

wherever the proscribed act occurs.

AFFIRMED.

Footnote 10 continued:

or imprisoned not more than twenty

years, or both.

53a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-5213

United States of America, Appellee,

versus

Myles E. Billups, Sr., Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at

Norfolk. Walter E. Hoffmann, District Judge.

IT IS ORDERED that the opinion in

this case is amended by deleting the first

full paragraph on page 9 which reads as follows:

It is observed initially that neither

in the trial nor on appeal has there been any

representation that had Billups' attorneys

known William Battle's actual status with the

ILA, they would have utilized a peremptory

challenge to strike Jadis Battie. Thus there

can be no claim that had this information been

known, Billups' attorneys would have invariably

stricken Battle from the array. See United

States v. Rucker, 557 F.2d 1046 (4th Cir. 1977);

see generally United States v. Jones, 608 F.2d

1004, 1009 (4th Cir. 1979), cert. denied, 444

U.S. 1086 (1980) (Murnaghan, J., dissenting).

Billups' claim, therefore, must stand or fall

on a conclusion that juror Battle was in-

capable of rendering an impartial verdict

thus denying Billups a fair trial before an

54a

unbiased jury.

Entered at the direction of Judge Sprouse

with the concurrence of Judge Butzner and

Judge Kiser.

FOR THE COURT,

/s/ William K. Slate, II

CLERK

FILED

Apr 29 1983

US Court of Appeals

Fourth Dircuit

55a

Title 18 U.S.C. § 1951, the Hobbs

Act, provides:

INTERFERENCE WITH COMMERCE BY

THREATS OR VIOLENCE

(a) Whoever in any way or degree

obstructs, delays, or affects commerce

or the movement of any article or

commodity in commerce, by robbery or

extortion or attempts or conspires so to

do, or commits or threatens physical

violence to any person or property in

furtherance of a plan or purpose to do

anything in violation of this section

shall be fined not more than $10,000 or

imprisoned not more than twenty vears,

or both.

(b) As used in this section-

(1) The term "robbery" means

the unlawful taking or obtaining of

personal property from the person or in

the presence of another, against his will,

by means of actual or threatened force,

Or violence, or fear of injury, immediate

or future, to his person or property, or

property in his custody or possession, or

the person or property of a relative or

member of his family or of anyone in his

company at the time of the taking or

obtaining.

(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.

(3) The term "commerce" means

commerce within the District of Columbia,

or any Territory or Possession of the

United States; all commerce between any

point in a State, Territory, Possession,

or the District of Columbia and any

point outside thereof; all commerce

between points within the same State

through any place outside such State; and

all other commerce over which the United

States has jurisdiction.

(c) This section shall not be con-

strued to repeal, modify or affect

Section 17 of Title 15, sections 52,

101-115, 151-166 of Title 29 or sections

151-188 of Title 45.

June 25, 1948, c. 645, 62 Stat. 793.

58a

Title 18 U.S.C. § 1952, the Travel

Act, provides:

INTERSTATE AND FOREIGN TRAVEL OR

TRANSPORTATION IN AID OF

RACKETEERING ENTERPRISES

(a) Whoever travels in interstate

or foreign commerce or uses any facility

in interstate or foreign commerce,

including the mail, with intent to-

(1) distribute the proceeds

of any unlawful activity; or

(2) commit any crime of

violence to further any unlawful ac-

tivity; or

(3) otherwise promote, manage,

establish, carry on, or facilitate the

promotion, management, establishment, or

carrying on, of any unlawful activity,

and thereafter perfcrms or attempts to

perform any of the acts specified in

subparagraphs (1), (2), and (3), shall

be fined not more than $10,000 or im-

prisoned for not more than five years,

59a

or both.

(b) As used in this section

"unlawful activity" means (1) any

business enterprise involving gambling,

liquor on which the Federal excise tax

has not been paid, narcotics or controlled

substances (as defined in section 102(6)

of the Controlled Substances Act), 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.

(c) Investigations of violations

under this section involving liquor shall

be conducted under the supervision of

the Secretary of the Treasury. As

amended Pub.L. 91-513, Title II, §701(i)

(2), Oct. 27, 1970, 84 Stat. 1282.

60a

Title 29 U.S.C. §186(b), of the

Taft-Hartley Act, provides:

RESTRICTIONS ON FINANCIAL TRANSACTIONS

REQUEST, DEMAND, ETC., FOR MONEY

OR OTHER THING OF VALUE

(b) (1) It shall be unlawful for

any person to request, demand, receive,

or accept, or agree to receive or accept,

any payment, loan, or delivery of any

money or other thing of value prohibited

by subsection (a) of this section.

(2) It shall be unlawful for any

labor organization, or for any person

acting as an officer, agent, representative,

or employee of such labor organization,

to demand or accept from the operator of

any motor vehicle (as defined in part II

of the Interstate Commerce Act) employed

in the transportation of property in

commerce, or the employer of any such

operator, any money or other thing of

value payable to such organization or to

an officer, agent, representative or

employee thereof as a fee or charge for

the unloading, or in connection with the

unloading, of the cargo of such vehicle:

Provided, that nothing in this paragraph

shall be construed to make unlawful any

payment by an employer to any of his

employees as compensation for their

services as employees.

62a

IN THE UNITED STATES DISTRICT

COURT FOR THE FASTERN DISTRICT

OF VIRGINIA, NORFOLK DIVISION

(Filed November20, 1980)

UNITED STATES OF AMERICA

Vv. DR. NO. 80-146-N

MYLES E. BILLUPS, SR.

NOVEMBER 1980 TERM - At Norfolk, Virginia

THE GRAND JURY CHARGES THAT:

INTRODUCTION

At all times material to Counts One

through Nine of this Indictment:

1. The defendant, MYLES E. BILLUPS, SR.

was Vice-President of the International

Longshoreman's Association (hereinafter I.L.A.);

Vice-President of the Atlantic Coast District

Council of the I.L.A.; President of Hampton

Roads District Council of the I.L.A., and

President of I.L.A. Local 1970, Port of Hampton

Roads, Virginia.

2. Prudential Lines, Incorporated

(hereinafter Prudential) a Delaware corporation,

with offices at One World Trade Center, New

63a

York City, was a worldwide steamship line

engaged in interstate and foreign commerce

at various ports including the Port of Hampton

Roads, Virginia.

3. John R. Marano was Vice-President

of Prudential.

4. Quin Marine Services, Inc. (here-

inafter Quin Marine) was a New York corporation

with offices in Manhattan and Brooklyn, New

York, Norfolk, Virginia and elsewhere and

was a marine service and repair business.

5. Quin Marine was a business engaged

in and the activities of which affected inter-

state commerce and whose employees belonged

to and were represented by the I.L.A. and

other labor organizations related to and

affiliated with the I.L.A.

6. William A. Montella was the general

manager of Quin Marine.

COUNT ONE

1. Paragraphs 1 through 3 of the

Introduction are hereby realleged and

64a

incorporated by reference as though set

forth in full.

2. On or about November 26, 1975 in

the Eastern District of Virginia, the defend-

ant, MYLES E, BILLUPS, SR., did knowingly,

willfully and unlawfully obstruct, delay

and affect commerce, and the movement of

articles and commodities in commerce, as

that term is defined in Title 18, United

States Code, Section 1951, and did attempt

to do so, by extortion, as defined in Title

18, United States Code, Section 195l, that

is to say, the defendant did obtain and

attcmpt to obtain property, of another, to-

wit: approximately $10,000 from John R.

Marano, as agent, officer and representative

of Prudential Lines, with his consent, induced

by the wrongful use of fear.

(In violation of Title 18 United States

Code, Section 1951).

COUNT TWO

THE GRAND JURY FURTHER CHARGES THAT:

65a

1. Paragraphs 1 through 3 of the

Introduction are hereby realleged and

incorporated by reference as though set forth

in full.

2. On or about November 26, 1975, the

defendant MYLES E. BILLUPS, SR., did travel

in interstate commerce from the Eastern

District of Virginia to New York with the

intent to promote, manage, establish, carry

on and facilitate the promotion, management,

establishment and carrying on of an unlawful

activity, said unlawful activity being bribery,

in violation of the New York Penal Code and there-

after the defendant, MYLES E. BILLUPS, SR., did

perform and attempt to perform acts to promote,

Manage, carry on and facilitate the promotion,

management and carrying on of said unlawful

activity. (In violation of Title 18, United

States Code, Section 1952(a)(3)).

COUNT THREE

THE GRAND JURY FURTHER CHARGES THAT:

1. Paragraphs 1 through 3 of the

66a

Introduction are hereby realleged and

incorporated by reference as though set forth

in full.

2. On or about December 19, 1975, in

the Eastern District of Virginia, the defendant,

MYLES E. BILLUPS, SR., did knowingly, wilfully

and unlawfully obstruct, delay and affect

commerce, and the movement of articles and

commodities in commerce, as that term is

defined in Title 18, United States Code,

Section 1951, and did attempt to do so, by

extortion, as defined in Title 18, United

States Code, Section 1951, that is to say,

the defendant did obtain and attempt to obtain

property of another, to-wit: approximately

$4,000 from John R. Marano, as agent, officer

and representative of Prudential Lines, with

his consent, induced by the wrongful use of

fear. (In violation of Title 18, United States

Code, Section 1951).

COUNT FOUR

THE GRAND JURY FURTHER CHARGES THAT:

67a

1. Paragraphs 1 through 3 of the

Introduction are hereby alleged and incorporated

by reference as though set forth in full.

2. On or about December 17, 1975, the

defendant MYLES E. BILLUPS, SR., did travel in

interstate commerce from the Eastern District of

Virginia to New York with the intent to promote,

manage, establish, carry on and facilitate the

promotion, management, establishment and carrying

on of an unlawful activity, said unlawful activity

being bribery, in violation of the New York Penal

Code; thereafter the defendant MYLES E. BILIUPS,

SR., did perform and attempt to perform acts to

promote, manage, carry on and facilitate the

promotion, management and carrying on of said

unlawful activities in violation of Title 18,

United States Code, Section 1952(a) (3).

COUNT FIVE

THE GRAND JURY FURTHER CHARGES THAT:

1. Paragraphs 1 and 4 through 6 of the

Introduction are hereby realleged and incor-

porated by reference as though set forth in full.

68a

2. In or about May 1976, in the Eastern

District of Virginia, the defendant MYLES E.

BILLUPS, SR., being a representative of

employees who were employed in an industry

affecting commerce, to-wit: Vice-President of the

I.L.A., Vice-President of the Atlantic Coast

District Council of the I.L.A., President of

Hampton Roads District Council of the I.L.A.,

and President of I.L.A. Local 1970, did

knowingly, willfully and unlawfully receive,

accept, and agree to receive and accept a

paymentand delivery of money from William A.

Montei@a, a representative of Quin Marine, the

employer of such employees. (In violation of

Title 29, United States Code, Section 186(b) (1)

and (d)).

COUNT SIX

THE GRAND JURY FURTHER CHARGES THAT:

1. Paragraphs 1 and 4 though 6 of the

Introduction are hereby realleged and incor-

porated by reference as though set forth in full.

2. In or about October 1977, in the Eastern

69a

District of Virginia, the defendant, MYLES E.

BILLUPS, SR., being a representative of employees

who were employed in an industry affecting

commerce, to-wit, Vice-President of the I.L.A.,

Vice-President of the Atlantic Coast District

Council of the I.L.A., President of Hampton

Roads District Council of the I.L.A., and President

of I.L.A. Local 1970, did knowingly, willfully

and unlawfully receive, accept, and agree to

receive and accept a payment and delivery of

money from William A. Montella, a representative

of Quin Marine, the employer of such employees.

(In violation of Title 29, United States Code,

Section 186(b)(1) and (d)).

COUNT SEVEN

THE GRAND JURY FURTHER CHARGES:

1. Paragraphs 1 and 4 through 6 of the

Introduction are hereby realleged and incor-

porated by reference as though set forth in full.

2. In or about January 1978, in the Eastern

District of Virginia, the defendant, MYLES E. BILLUPS

SR., being a representative of employees who were

70a

employed in an industry affecting commerce,

to-wit, Vice-President of the I.L.A., Vice-

President of the Atlantic Coast District Council

of the I.L.A., President of Hampton Roads

District Council of the I.L.A., and President

of I.L.A. Local 1970, did knowingly, willfully

and unlawfully receive, accept, and agree to

receive and accept a payment and delivery of

money from William A. Montella, a representative

of Quin Marine, the employer of such employees.

(In violation of Title 29, United States Code,

Section 186(b) (1) and (d)).

COUNT EIGHT

THE GRAND JURY CHARGES THAT:

1. Paragraphs 1 and 4 through 6 of the

Introduction are hereby realleged and incor-

porated by reference as though set forth in full.

2. On or about August 11, 1978, in the

Eastern District of Virginia and elsewhere, the

defendant MYLES E. BILLUPS, SR., being a repres-

entative of employees who were employed in an

industry affecting commerce, to-wit, Vice-President

7la

of the I.L.A., Vice-President of the Atlantic

Coast District Council of the I.L.A., President

of Hampton Roads District Council of the I.L.A.,

and President of I.L.A. Local 1970, did knowingly,

willfully and unlawfully receive, accept, and

agree to receive and accept a payment and

delivery of money from William A. Montella, a

representative of Quin Marine, the employer of

such employees. (In violation of Title 29,

United States Code, Section 186(b)(1) and (d)).

COUNT NINE

THE GRAND JURY FURTHER CHARGES:

1. Paragraphs 1 and 4 through 6 of the

Introduction are hereby realleged and incor-

porated by reference as though set forth in full.

2. On or about October 3, 1978, in the

Eastern District of Virginia, the defendant

MYLES E. BILLUPS, SR., being a representative

of employees who were employed in an industry

affecting commerce, to-wit, Vice-President of

the I.L.A., Vice-President of the Atlantic Coast

District Council of the I.L.A., President of

Hampton Roads District Council of the I.L.A.,

72a

and President of I.L.A., Local 1970, did knowingly,

willfully and unlawfully receive, accept, and

agree to receive and accept a payment and

delivery of money from William A. Montella, a

representative of Quin Marine, the employer of

such employees. (In violation of Title 29,

United States Code, Section 186(b) (1) and (d)).

COUNT TEN

THE GRAND JURY FURTHER CHARGES:

1. On or about August 1, 1977, in the

Eastern District of Virginia, the defendant

MYLES E. BILLUPS, SR., being an officer and

employer of a labor organization engaged in an

industry affecting commerce, to-wit: Vice-President

of the I.L.A., Vice-President of the Atlantic

Coast District Council of the I.L.A., President

of Hampton Roads District Council of the I.L.A.,

and President of I.L.A. Local 1970, did knowingly,

willfully and unlawfully receive, accept and agree

to receive and accept a payment and delivery of

money from John R. Marano, an employer, with

intent that his receipt and acceptance of this

73a

money influence his actions, decisions and

duties as said officer and employee. (In

violation of Title 29, Section 186(b)(1) and

(d)).

A TRUE BILL

Foreman

Justin W. Williams

Justin W. Williams

United States Attorney

J. Phillip Krajewski

J. Phillip Krajewski

Assistant United States Attorney

Theodore S. Greenberg

Theodore S. Greenberg

Assistant United States Attorney