Petition — Michael Rizzitello v. United States

Supreme Court brief1983

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

10. 28

MICHAEL RIZZITELLO,

PETITIONER,

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ECEIVED

1982

JIBS

fie OF THE CLERK

SUPREME COURT, U.S.

Supreme Court, U.S.

FILED

DEC 30 1982

Alexender L. Stevas, Clerk

Howard W. Gillingham

The Bradbury Building

304 So. Broadway, Suite 223

Los Angeles, CA 90013

(213) 687-4124

Lawyer for Petitioner

by C. J. A. appointment

in D.C.

Calif. and

continued in 9th Cir.

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TABLE OF CONTENTS

Table of Autborities

Opinion Below

Jurisdiction

Questions Presented

Reason For Granting Writ

Statutes

Statement of the Case

Statement of Facts

Question Presented

1. Does federal jurisdiction under

the Hobbs Act [18 U.S.C. 1951]

exist where no actual or poten-

tial effect on interstate com-

merce can be shown?

2. May the federal government

“manufacture” a federal nexus

by inducing the defendants to

cross a state line?

Conclusion

Appendix "A"

Memorandum Opinion of the Court

of Appeals for the Ninth Circuit

Appendix B

Order Denying Petition for

Rehearing En Banc

Proof of Service

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TABLE OF AUTHORITIES

Stirone v. United States

United States v. Archer

United States v. Brooklier

+ SUpp-

United States v. Bryson

TI F. Supp. 6168 8. Okla. 1975)

United States v. DeMet

20 816 (?th Cir. 1973)

United States v. Elders

569 F. 2d 1020 (7th Cir. 1978)

United States v. Feola

* * 7

United States v. Gupton

459 G. 2a 550 (Eth Cir. 1974)

United States v. Local 807

United States v. Perez

United States v. Panno

- 2a 387 t ir. 1967)

United States v. Staszcuk

= t ir. 1975)

United States v. Varlach

Pa is

10,12,13

15,16,17

4,6,7,9,13

9, 10, 13,14

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PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Michael Rizzitello, respectfully prays that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Ninth Circuit

entered in the above-entitled cause on September 3, 1982.

OPINION BELOW

The opinion of the Court of Appeals for the Ninth Circuit

appears in Appendix "A" hereto. The order denying the Petition

for Rehearing and rejecting the Suggestion for Rehearing En

Banc appears in Appendix B“. No opinion was rendered by the

trial judge, however, a published opinion rejecting the motion to

dismiss was filed in United States v. Brooklier, 459 F. Supp. 476

(C.D. Cal. 1978), which concerned the same factual] situation in an

earlier indictment which was ultimately dismissed on other grounds.

JURISDICTION

The judgment of the Court of Appeals for the Ninth Circuit

affirmed petitioner's conviction was entered on September 3, 1982.

The order denying the Petition for Rehearing and ‘ejecting the

suggestion for Rehearing En Banc was entered November 1, 1982.

The jurisdiction of this Court is invoked pursuant to 62 Stat.

| 928, 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Does a violation of the Hobbs Act occur where there

exists no actual or potential effect on interstate commerce?

2. Can a manufactured“ jurisdiction suffice to confer

federal jurisdiction under the Hobbs Act?

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REASONS FOR GRANTING WRIT

This case presents the important question whether Congress

intended that the Hobbs Act be used to prosecute cases where no

actual or potential effect on interstate commerce could be shown.

The prosecution, in an attempt to provide the necessary interstate

commerce nexus, has manufactured“ the supposed connection with

commerce by inducing one of the alleged co-conspirators to cross

a state line to receive a supposed "extortion" payment.

The case presents important questions concerning the extent

and reach of federal power in prosecution offenses which have

no effect on interstate commerce; it presents equally important

questions concerning the extent to which law enforcement can be

permitted to go in "creating" a federal offense where none would

otherwise exist.

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STATUTES L

18 U.S.C. 1962(c) & (ad):

associated with any enterprise engaged in, or the activities of

which affect interstate commerce or foreign commerce, to conduct

or participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity

or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to

'violate any of the provisions of subsections (a), (b), or (e) of

this section.

18 U.S.C. 1951:

(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 years, or both.

STATEMENT OF THE CASE

On February 20, 1979, a federal grand jury in Los Angeles

returned a five count indictment against petitioner Rizzitello

and co-defendants Dominick Brooklier, Samuel Sciortino, Louis

Dragna, and Jack Locicero.

Count One alleged that each of the defendants was employed

by and were members of an enterprise“, known as the Los Angeles

"family" of the La Cosa Nostra. It was further alleged that the

defendants conspired together to commit acts of racketeering through

the enterprise“ in violation of 18 U.S.C. 1962(d).

77 ae

Count Two alleged that each of the defendants, acting through

the charged "enterprise", committed seven specific acts of

racketeering as defined in 18 U.S.C. 1961.

Count Four alleged that Rizzitello and co-defendant Locicero

conspired to extort $7500 from Forex Company, which was in

actuality an undercover operation of the F. B. 1. which purported

to deal in pornographic films. Count Four specifically alleged

that the defendants attempted and conspired "to obstruct, delay

and affect commerce" in violation of 18 U.S.C. 195l(a).

Following unsuccessful motions to dismiss the indictment_/

defendant was convicted by a jury of Counts I, II, and IV. He

was acquitted of a fourth count, which alleged an attempted

extortion of pornographer Theodore Gaswirth.

Following preparation of a presentence report, petitioner

was sentenced to the custody of the Attorney General for a period

of five (5) years pursuant to 18 U.S.C. 4205(b)(2) on each of the

three counts, the sentences to run concurrently.

Petitioner has been at liberty since his indictment on

bond in the amount of $50,000.

1/ Counsel for defendants moved pretrial to dismiss |

Count Four of the indictment on the grounds that it failed to

show federal jurisdiction in that there could have been no effect

on interstate commerce, as required by 18 U.S.C. 1951,

as the Forex Company was not actually in business, but was merely

an undercover operation of the F.B.I. The trial judge relying

on Judge Pregerson's opinion in U.S. v. Brooklier, 459 F. Supp.

476 (1978), which concerned the same factual situation in a

previously dismissed indictment, found that no effect need be shown)

where a conspiracy to violate 18 U.S.C. 1951 is alleged.

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STATEMENT OF FACTS

The bulk of the evidence concerning petitioner involved his

participation in the attempted extortion of the Forex Company.

Forex, which was an undercover operation of the F.B.I. purporting

to deal in pornographic films, was never actually in business,

and had only props as inventory. It was not disputed that

Rizzitello and co-defendant Locicero sought and obtained $7,500

from the "owners" of the Forex Company, who were in actuality

Special Agents of the F. B. 1. The thrust of defendants’ motions to

dismiss and judgment of acquittal was since Forex was never in

business, the attempted extortion could have no actual or potential

effect on interstate commerce.

One payment, in the amount of $1,000, was made to unindicted

co-defendant Thomas Ricciardi in Las Vegas, Nevada, by the under-

cover agents of the F.B.I. They advised Ricciardi that they had

to be in Las Vegas on business, and it would be necessary for him

to come to Nevada to receive his weekly payment. The meeting in a

Las Vegas Hotel suite was recorded and the payment was claimed to

show a sufficient interstate nexus for a violation of the Hobbs

Act.

The case raises the question of whether a violation of the

Hobbs Act can occur where the object of the attempted extortion

is not actually in business, and therefore cannot conceivably have

an actual or potential effect on interstate commerce. The case

also raises the question whether such affect on interstate commerce

is necessary where an attempt or conspiracy to extort is alleged,

as opposed to an ectual extortion. In the instant indictment,

the government alleged both an attempt and a conspiracy, eventually

electing to proceed on the theory of conspiracy. In United States

v. Brooklier, supra, the original trial judge ruled that no effect

on commerce need be

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shown where an attempt is alleged; this ruling was reaffirmed

by the new trial judge when the government eventually elected

to proceed on the theory that the defendants conspired to

extort monies from Forex.

QUESTIONS PRESENTED

1. DOES FEDERAL JURISDICTION UNDER THE HOBBS ACT

{18 USC 1951] EXIST WHERE NO ACTUAL OR POTENTIAL

EFFECT ON INTERSTATE COMMERCE CAN BE SHOWN?

On three separate occasions, counsel for defendants moved

to dismiss the Hobbs Act charge (Count IV) and strike the

corresponding acts of racketeering alleged in Counts I and II

of the indictment.

The motion alleged that Count IV must be dismissed because

the attempt (or conspiracy) to extort money from Forex, the

undercover FBI operation could not have any actual or potential

effect on interstate commerce, as required by 18 U.S.C. 1951.

At the time of the original filing of the motion, Judge

Harry Pregerson heard and denied the request for dismissal,

finding that an attempt to violate the Hobbs Act did not

require any effect on interstate commerce. That ruling was

published at 459 F. Supp. 476 (C.D. Cal. 1978).

The motion was thereafter renewed and denied when two

subsequent indictments were returned, and when the government

eventually determined to allege a conspiracy to extort, the

new trial Judge, Terry Hatter reaffirmed the original ruling

by Judge Pregerson.

In his original decision, Judge Pregerson concluded that

where an inchoate crime of attempt (and arguable conspiracy)

was alleged, no actual or potential effect on commerce need be

shown. While conceding no specific case law supported that

conclusion, Judge Pregerson concluded that a reading of United

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States v. Staszcuk, 317 F. 2d 53 (7th Cir. 1975) was per-

suasive authority for his position. 2/ tc is submitted that

the better view is that an effect on interstate commerce is

a jurisdictional necessity, whether a choate or inchoate

crime is charged under the Hobbs Act. A review of statutory

and constitutional authority supports the position advanced

by petitioner herein.

A. Constitutional Basis of the Hobbs Act (18 U.S.C. 1951)

The present form of Title 18 United States Code 1951,

commonly known as the Hobbs Act, reflects a codification of a

1934 enactment called the “Federal Anti-Racketering Act of

1934", The subsequent amendments in 1946 were intended to

encompass the conduct held beyond the reach of the 1934 Act

by the Supreme Court in United States v. Local 807, 315 U.S.

521 (1942).

This broadening amendment concerned primarily the proper

differentiation between "legitimate" labor activity and labor

"racketeering".

The present Hobbs Act authority is bottomed on the Commerc

Clause contained in Article 1, Section 8, of the United States

Constitution. The primary purpose of the commerce clause was

to secure freedom of trade, to break down the barriers to its

free flow, and to curtail the rising volume of restraints

upon commerce that the Articles of Confederation were inadequ-

ate to control

The language of the statute, cited supra., its legislative

history and previous judicial interpretations all confirm an

intent by Congress to exercise its power under the commerce

2/ Subsequent to United States v. Brooklier, ora,

and the opinion at 476 F. Supp. 476, the Ninth Circuit adopted

Judge Pregerson reasoning in United States v. Bagnariol, 665

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clause. The definition of the word "commerce" in the 1934

Act encompassed "all other trade or commerce over which

the United States has constitutional jurisdiction". The

Senate Report approvingly quoted a Department of Justice

memorandum that the proposed statute was designed “to extend

federal jurisdiction over all restraints of any commerce with-

in the scope of the federal government's constitutional power".

See Senate Report, No. 532, 73rd Cong. 2nd Sess. at 1 (1934).

As the Supreme Court stated in Stirone v. United States,

361 U.S. 212, the broad language of the Hobbs Act manifests "a

purpose to use all the constitutional power Congress has to

punish interference with interstate commerce by extortion, rob-

bery, or physical violence”. Id. at 215.

Clearly, the Hobbs Act draws its full and complete vitality

from the commerce clause and was intended to apply to those

proscribed activities which adversely affect commerce.

b. Application of the Hobbs Act

Consistent with the language of the statute and the expres-

sed legislative intent to cope with the problems of labor

racketeering, courts have consistently held the Act should

apply to a wide range of extortionate activity. In each case,

a nexus has been required between the extortionate conduct

and interstate commerce in order to confer federal jurisdiction.

That nexus may be de minimis, United States v. DeMet, 486

F. 2d 816, 822 (7th Cir. 1973), but it must nonetheless exisc.

Its. connection with or effect on interstate commerce must at

least present a "realistic possibility at the time of the

extortionate act". United States v. Statszuk, supra, at 59-60.

Jurisdiction is satisfied where an extortionate payment was

demanded after the event which had any possible effect on

interstate commerce. - United States v. Kuta, 518 F.2d 947 (7th

Cir. 1975)

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Courts have found potential future effect on interstate

commerce sufficient to invoke the statute. United States v.

DiGregorio, 605 F.2d 1184 (ist Cir. 1979), or a showing that

funds were diverted which might have otherwise been employed

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

667 (4th Cir. 1978).

However, where no actual or potential effect on interstate

commerce can be shown, a prosecution under the Act will fail.

United States v. Elders, 569 F2d 1020 (7th Cir. 1978.

C. Inchoate Offenses under the Hobbs Act

The Act prohibits not only the acts of obstructing or at-

tempting to obstruct commerce through extortion, but also

conspiracies to do so. A violation of the Act is complete

when one attempts or conspires to induce a victim engaged in

interstate commerce to part with property. United States v.

Glynn _, 627 F.2d 39 (7th Cir. 1980).

The fact that the offense alleged in Count Four of the in-

stant indictment is an anticipatory crime--attempt and/or

conspiracy--does nothing to alter the requirement that the

interstate nexus must be established. In discussing the juris-

dictional nexus for inchoate crimes. under the Act, the Second

Circuit in United States v. Varlach, 225 F.2d 665, 671 (1955)

stated:

An examination of the various forms taken by the

legislation since the passage of the Anti- Racketeering

Act of 1934 makes in clear beyond cavil, that the

Congress sought to apply criminal sanctions to acts

constituting extortion or robbery or attempts or

conspiracies to commit such acts providing only, as

indeed the constitutional prerequisites to legislative

jurisdiction require, that the conduct obstructed, de-

layed, affected, or in some way related to interstate

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commerce."

D. Intent Requirements under the Act

The necessity for the interstate commerce nexus where an

ttempt or conspiracy is charged under the Act can be discerned

y reviewing the intent requirements necessary for conviction.

The Hobbs Act is clearly a statute requiring on general

intent; it contains no language requiring “willful” or "know-

ing" conduct.

Furthermore, the legislative history of the Act indicates

that, during passage of the present law, an amendment had been

proposed as an alternative to the present language which did

contain the “knowingly” and “willfully” language, but was

rejected by Congress. See 91 "Congressional Record“, pp.

11918-19 (1943).

The Congress was aware of the alternate language requiring

specific intent but nevertheless did not include it in the

resent Act. Court have consistently held the Act to require

nly a general intent to create a violation. United States v.

Bryson, 418 F. Supp. 818 (W.D. Okla. 1975).

A defendant need not intend to contemplate an effect on

ommerce. United States v. Nakaladski, 481 F.2d 289 (7th Cir.

1968). The prosecution need only show that he agreed to embark

pon a course of extortionate behavior likely to have the

tural effect of obstructing commerce. United States v.

upton, 495 F.2d 550 (Sth Cir. 1974).

Congressional insistence upon a general intent statute was

ntended to maximize constitutional power to punish actual

nterference with interstate commerce by extortion. Stirone v.

nited States, supra. The intent of the defendant becomes

econdary to the desire of Congress to curb adverse effect of

ommerce. It is the defendant's effect on commerce, rather than

is state of mind which drew greater congressional scrutiny.

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If the interstate commerce nexus must be satisfied to

sustain a conviction for a substantive offense, no different

jurisdictional element should exist where an attempt or

conspiracy is alleged.

In United States v. Feola, 420 U.S. 671 (1975),, the

Supreme Court held that where a substantive statute has as an

element of proof some federal jurisdictional factor, such as

the interstate commerce nexus in the Hobbs Act, unless the

substantive statute requires that a defendant be aware of this

factor, the conspiracy charge will not require ic.

It is undisputed that conviction for a completed extort-

fonate act under the Hobbs Act requires proof of some actual

or potential effect on commerce. United States v. Staszuk,

supra. at 53. The government need not show that the defendant

formed the specific intent to obstruct commerce; it need show

he committed an act whose necessary and natural consequence

is to affect commerce. United States v. Pranno, 385 F.2d

387, 389 (7th Cir. 1967).

The government conceded that the Forex Company had no

actual effect on commerce. It seems clear that under the

facts in the instant case, it could not have any potential

effect on commerce either. Such an effect would be necessary

before a completed extortionate act could be punishable under

the Hobbs Act.

Accordingly, mere belief by a defendant that Forex was en-

gaged in interstate commerce is insufficient to satisfy the

jurisdictional nexus under the Hobbs Act. Where that belief

would be insufficent to sustain a conviction for a substentive

offense, it should similarly be insufficient to support a

conviction for conspiracy or attempt.

An analysis of Judge Pregerson's opinion in United States

V. Brooklier, supra., reveals that he has misconstrued the

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intent of the Hobbs Act. in finding that no effect on inter-

stato commerce need be shown where an anticipatory violation

of the Act is alleged.

Judge Pregerson cited the Supreme Court opinion in United

States v. Perez, 402 U.S. 146 (1971), a case arising under the

Consumer Credit Protection Act [18 U.S.C. 891] for the prop-

osition that Congress could punish extortionate activity under

the Hobbs Act without a specific showing in every case that

the proscribed activity affects commerce.

Perez, supra, relied on a “class of activities" concept

and concluded that Congress could properly legislate against

loan sharking on a nationwide scale without having to inquire

whether each instance of loan sharking affected interstate

commerce. Brooklier, supra at 482. Judge Pregerson concluded

that Congress intended a similar approach where inchoate

crimes are charged under the Hobbs Act.

Such a “class of activities" approach to Hobbs Act violat-

fons has been rejected by the Seventh Circuit in United States

v. Staszcuk, supra. In an en banc opinion written by Judge

Stevens, (now Mr. Justice Stevens), the Court concluded:

The language of the statute [Hobbs Act] does

not permit us to treat it as « determination

that since the class of activities giving rise

to federal concern has an adverse effect on

commerce, Congress intended any activity within

the class to be subject to prosecution without

necessity of any showing of an actual or potential

effect on commerce in the particular case. Id at 59,

n. 16.

This analysis squarely rejects the conclusions upon which

this case was originally decided, and which the Ninth Circuit

has accepted. An ascertainableinterstate nexus is a necessary

prerequisite to a prosecution under the Hobbs Act, whether the

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offense charged is a completed or inchoate offense. It is sub-

mitted that the Ninth Circuit in United States v. Bagnariol,

supra, and the instant case, has incorrectly interpreted the

Hobbs Act and wrongly affirmed the conviction herein.

II. May a "Manufactured" Federal Nexus Satisfy the

Interstate Commerce Requirement?

on September 2, 1976, agents of the F. B. I., posing as the

operators of Forex, the undercover F.B.I. operation, traveled

to Las Vegas and arranged to meet unindicted coconspirator

Thomas Ricciardi at the MCM Grand Hotel.

Ricciardi traveled from Los Angeles to Las Vegas and met

with the agents in a hotel room for the purpose of picking up

a payment of $1,000 which was the product of the defendants’

extortionate conduct.

Special Agent Larson, one of the F.B.I. agents masqueradin

as an employee of Forex, told Ricciardi in a recorded conver-

sation that he and Special Agent Fi eck had to go to Las

Vegas in an ef fort to get financing for a video cassette mach-

ine. Transcript, Volume XVI, pp. 4376-77.

That meeting was charged as an act of racketeering in

both Counts One and Two; it was alleged as both an attempt and

conspiracy to commit extortion under the Act. Ricciardi's

conversation with agents Larson and Fishbeck in the Las Vegas

hotel room was played for the jury during the trial.

In reality, of course, there was no video cassette machine;

no business deal which required the trip to Las Vegas. Forex

was never in business.

Clearly, the trip to Las Vegas was merely an attempt to in-

duce one of the defendant's to cross a state line so as to

provide the necessary interstate commerce nexus.

Such an attempt to manufacture federal jurisdiction has

been condemned by the Second Circuit in United States v. Archer

(und Cir. AVS) US 7.24670,

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Nothing in the record supports the bald statement in the opinion

that the activities engaged in by the parties were of an interstate

character. Aside from the statements of the agents that they were

involved in an international pornography operation, nothing would

suffice to provide the necessary interstate or international nexus.

The factual setting in the instant case is remarkably similar

to that condemned in Archer, supra. There, as in the case at

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bar, a blatant attempt was made to provide an interstate nexus

where none existed. This honorable court should reaffirm the

holding in Archer by condemning the activities engaged in here.

{

CONCLUSION

| The case, although essentially a single-issue question, would

14 result in the vacating of all three counts of which petitioner

1% was convicted. His conviction on Counts One and Two--the RICO

16 counts--depend on a finding that the predicate acts of

17 racketeering--The Hobbs extortions--were properly brought. If

18) the Court were to find that Count IV--the substantive Hobbs Act--

19 was not properly brought because of the absence „f the necessary

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20 interstate nexus, Counts One and Two would also have to be vacated

21 due to an absence of the required two acts of racketeering.

22 Convictions were rendered on those two counts only because the

23 court below found that the Hobbs Act alleged in Count IV could

24 be alleged as several separate acts of racketeering in Counts One

28 and Two.

26 For the foregoing reasons, this Honorable Court should grant

27 petitioner's request and issue an order reviewing the convictions

28 below for the reasons asserted herein.

30 bar: December 29, 1982

Submitted,

’ yer

ichael Rizzitello

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