# Petition for Writ of Certiorari — Hollis v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2782%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 820

## Text

\) : . [ Office - Sipreme Court,
53 os 1788 FILED
os MAY 7 68

ALEXANDER L. STEVAS
CLERK

j

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

KENNETH £E. HOLLIS - - - - Petitioner

versus

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AND APPENDIX

JAMES A. SHUFFETT
SHUFFETT, MOONEY, McCOY,
CAMPBELL, LEATHERS & NEWCOMER
1200 Second Nationai Plaza
301 East Main Strect
Lexington, Kentucky 40507
(606) 233-2232

Counsel for Petitioner

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-®.©. BOX 3251, LOUISVILLE, KY.

5/ pp

QUESTIONS PRESENTED

1. Whether the Court of Appeals violated petitioner’s
due process and jury trial rights by affirming on a theory
of Hobbs Act jurisdiction which the government did not
advance at trial or on appeal?

2. Whether certiorari should be granted to resolve the
tension between the appellate rules that courts do not seru-
tinize the reasoning process of juries, yet they may not
affirm on a theory of the case not advanced at trial?

3. Whether certiorari should be granted to establish
guidelines to assist trial courts in determining whether the
Hobbs Act’s commerce requirement has been satisfied?

4. Whether certiorari should be granted to review a
decision which effectively extends Hobbs Act coverage to
embrace all extortion?

5. Whether certiorari should be granted to review a
decision which effectively holds that Hobbs Act jurisdiction
may rest on the same acts which form the bases of Travel
Act convictions?

TABLE OF CONTENTS

PAGE
Questions Presented .................ceereeceeees i
og | rrr ry rr rrs seer iii-iv
SS Prrrrrrrrererrr Tiree rs 1
OTe re ree er Tree ee. 2
Constitutional and Statutory Provisions ............ 2- 3
Eg rrr reer rrr 3- 8
Reasons for Granting the Writ ..................... 8-26
I vais sc ora s os vavewseuGeeu sees senna 26
BE acc cers ccnnncduscoessseeenacneusuaers .. 29-46
Appendix A (Decision of the Court of Appeals, Af-
DOMME) . oo ccc cepevsnes sauwuspenseasannauers 29-36
Appendix B (Order Denying Petition for Rehear-
( PPE rer re 37
Appendix C (Order Granting, in part, Stay of Man-
Gated ciccicecds vv sed scene casauswrecteeeeiaees 38
Appendix D (Bill of Particulars) ................ 39-41

Appendix E (The Government’s Theories Advanced
on Motion for Judgment of Acquittal at the

Close of Its Case-In-Chief) ................04- 42
Appendix F (Motion for Judgment of Acquittal at
the Close of All the Evidence) ............... 43

Appendix G (Arguments on Motion for a New
THU) cv ictvcsvccssds d04eshee ueepeeeaeees 44-46

TABLE OF AUTHORITIES

Constitutional Provisions: PAGE

United States Constitution, Fifth Amendment .... 2
United States Constitution, Sixth Amendment .... 2

Statutes:

End See | er 1, 2-3
ey ea oc ea ed Sal Kkoee 1, 3,4
Cases:
Cole v. Arkansas, 333 U.S. 196 (1948) ............ 10
Dunn v. United States, 442 U.S. 100 (1979) .8-9, 12, 14, 15
Dunn v. United States, 284 U. S. 390 (1932) ...... 12
Gregory v. Chicago, 394 U.S. 111 (1969) .......... 10
Jackson v. Virginia, 443 U. S. 307 (1979) ......... 12, 19
Presnell v. Georgia, 439 U. S. 14 (1978) .......... 10
Singleton v. Wulff, 428 U.S. 106 (1976) .......... 13
Spevack v. Klein, 385 U. S. 511 (1967) ........... 10
Umted States v. Bliss, 642 F. 2d 390 (10th Cir.
ET re ee 15, 21
Umited States v. Boston, 718 F. 2d 1511 (10th Cir.
LUE Chie icy deb bkas cannes ceévnas 20, 21

Umted States v. Dior, 671 F. 2d 351 (9th Cir. 1982) 15
United States v. Elders, 569 F. 2d 1020 (7th Cir.

Re Ce Md dl al lo awk e's bee Xs 18, 20, 23
United States v. French, 628 F. 2d 1069 (8th Cir.),

cert. dented, 449 U. S. 956 (1980) ............ 23
United States v. Harding, 563 F. 2d 299 (6th Cir.

1977), cert. denied, 434 U. S. 1062 (1978) ...... 22
Umited States v. Hyde, 448 F. 2d 815 (5th Cir. 1971),

cert. demed, 404 U. S. 1058 (1972) ............ 17, 24
Umited States v. Johnson, 718 F. 2d 1317 (5th Cir.

OE eee as ede eek donne eas 21

United States v. Jones, 580 F. 2d 219 (6th Cir.1978) 16

Umted States v. Mattson, 671 F. 2d 1020 (7th Cir.
Sgr yale gai ae a 18, 19, 20, 23, 24

iv

PAGE

United States v. Parrilla Bonilla, 648 F. 2d 1373

CRGG CRA. DRS ori dosh Saver eta eee cas 10, 14, 21
United States v. Patrin, 575 F. 2d 708 (9th Cir.

Nees Win SRN spk ee Te eaves se 12, 13, 15
United States v. Staszcuk, 517 F. 2d 53 (7th Cir.),

cert. denied, 423 U.S. 837 (1975) ........ 6, 17, 18, 24

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.
KENNETH E. HOLLIs - - - - Petitioner
VU.
UNITED STATES OF AMERICA - - Respond-nt

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AND APPENDIX

The petitioner respectfully prays that a writ of
certiorari be issued to review the order of the United
States Court of Appeals for the Sixth Circuit entered
in this proceeding on January 16, 1984, affirming the
petitioner’s convictions for violations of Title 18,
United States Code, Sections 1951 and 1952.

OPINION BELOW

The decision of the Court of Appeals affirming the
petitioner’s judgment of conviction upon a jury verdict
was entered and filed on January 10, 1984, and is re-
ported at 725 F. 2d 377 (6th Cir. 1984), and appears
in Appendix ‘‘A’’. No written opinion was rendered
by the District Court for the Eastern District of
Kentucky.

JURISDICTION

The order of the Court of Appeals for the Sixth
Circuit affirming the petitioner’s judgment of convic-
tion and sentence was entered and filed on January 16,
1984. A timely petition for rehearing and suggestion
for rehearing en banc was denied on March 2, 1984,
and this petition for certiorari was filed within sixty
days of that date. This Court’s jurisdiction is invoked
under the provisions of Title 28, United States Code,
Section 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS
CONSTITUTIONAL PROVISIONS:

The Fifth Amendment to the United States Consti-
tution provides in pertinent part:

No person shall be . . . deprived of life, liberty,
or property, without due process of law. . .

The Sixth Amendment to the United States Consti-
tution provides in pertinent part:

In all criminal prosecutions, the accused shall en-
joy the right to a speedy and public trial, by an
impartial jury . . . and to be informed of the na-
ture and cause of the accusation. ...

STATUTORY PROVISIONS:

Title 18, United States Code, Section 1951 (the
Hobbs Act) provides in pertinent part:

(a) Whoever in any way or degree obstructs,
delays, or affects commeree or the movement of

a

3

any article or commodity in conumerce, by rob-

bery or extortion . . . shall be fined . . . or im-
prisoned. ...
(b) As used in this section —
* * * *

(3) The term ‘‘commerce’’ means commerce
. between any point in a State . . . and any
point outside thereof. .. .

Title 18, United States Code, Section 1952 (the
Travel Act) provides in pertinent part:

(a) Whoever travels in interstate or foreign
commerce or uses any facility in interstate or
foreign commerce, including the mail, with intent
to —

(3) otherwise, promote, manage, establish,
carry on, or facilitate the promotion, management,
establishment, or carrying on, of any unlawful
activity, and thereafter performs or attempts to
perform any of the acts — in subparagraphs
es (2), and (3), shall be fined . . . or imprisoned

“(b) As used in this section, ‘‘unlawful activ-
ity’? means . . . (2) extortion, bribery, or arson
in violation of the laws of the State in which com-
mitted o> of the United States.

STATEMENT OF THE CASE

On July 7, 1982, a federal Grand Jury in the East-
ern District of Kentucky returned a four-count indict-
ment against the petitioner, Kenneth E. Hollis. Count
one charged extortion in violation of the Hobbs Act,
18 U.S.C. § 1951. Counts two, three, and four charged

t

that the petitioner used an interstate facility and trav-
eled in interstate commerce for the purpose of per-
forming extortion in violation of state and federal law,
18 U.S.C. § 1952(a)(3) (The Travel Act).

The Court of Appeals decision recites the salient
facts underlying these charges:

Hollis, General Counsel for the Kentucky De-
partment of Labor from 1976-1980, was convicted
of extorting $2100 from Dr. Travis Pugh, a Florida
physician, by threatening to withhold payment for
Pugh’s services unless Pugh returned part of
the payment to Hollis. Pugh had performed
services for the Kentucky Department of Labor
under an agreement made through Hollis.

Pugh and an associate established the I & D
Center, a clinic in Kentucky for reading x-rays
of potential black lung disease victims for the
Kentucky Department of Labor, in April of 1976.
Pugh moved his family to Kentucky with the in-
tention of staying one year, but returned to Flor-
ida after ten days because there were not enough
x-rays to be read in Kentucky. Pugh nonetheless
continued to read x-rays in Florida for the Ken-
tucky Department of Labor, receiving x-rays and
sending reports by mail and flying to Kentucky
whenever needed for depositions.

This contiuued even after the I & D Center
closed in September of 1976, although Pugh agreed
to allow Hollis to withold one payment to insure
Pugh’s return to Kentucky whenever depositions
were needed. Pugh notified Hollis that he would no
longer do any work for the Kentucky Department
of Labor in early February of 1977 and returned

D

to Kentucky for the last group of depositions later
that month. The bill for that final group of depo-
sitions was $5000.

Pugh testified that in October of 1977 Hollis
called him and threatened to hold his check for
$5000 for another six months to a year unless he
gave Hollis half the amount of the check. Because
Pugh needed the money immediately, he testified,
he finally agreed to pay Hollis $2100. Hollis
called Pugh again two days later to make travel
arrangements, and a few days after the initial
call he uew to Florida, where Pugh picked Hollis
up at the airport. The two then drove to Pugh’s
bank, where Pugh deposited the $5000 check Hollis
had brought him, immediately withdrew $2100
eash, and gave the cash to Hollis. Hollis then re-
turned to Kentucky.

725 F. 2d at 378.

Hollis urged that the Government had failed to
satisfy the Hobbs Act’s commerce requirement. This
contention was raised at the close of the government’s
ease-in-chief, at the close of all of the evidence, and
on motion for a new trial.‘ At the close of its case-in-
chief, the government abandoned its attempt to prove

1The theory on which the Court of Appeals based its decision
was not advanced by the Government in the bill of particulars
(Appendix ‘‘D’’), or in the arguments made in response to the
motion for judgment of acquittal at the close of the government’s
case-in-chief (Appendix ‘‘E’’) and at the close of all the evidence
(Appendix ‘‘F’’), or on motion for a new trial (Appendix ‘‘G’’).
The trial judge overruled the motion without comment in each
instance.

6

a violation of state extortion laws. Thereafter, the
government’s proof rested on acts which formed the
bases of Travel Act violations and on events which
occurred long before the extortion. And on each oc-
casion, the trial court overruled petitioner’s motion
without comemnt.

In the Court of Appeals, Hollis explained:

Appellee points to only five places in the record
in an attempt to show that commerce was affected.
Three of the references (Br. 17-18) relate to events
which occurred long before the alleged extortion;
the others are Hollis’ phone calls and flight to
Florida. (Br. 18). Hollis has explained in de-
tail (Br. 35-39) why the jurisdictional require-
ment may not be predicated on Travel Act viola-
tions. Appellee is completely non-responsive... .

The only other evidence relates to events which
occurred at least [eight] months before the alleged
extortion. . . . As the Court explained in United
States v. Staszcuk, 517 F. 2d 53, 60 (7th Cir.),
cert. denied, 423 U. S. 837 (1975) . . . ‘[t]he
jurisdictional inquiry must, of course, focus on
the situation ut the time of the offense.’ [Emphasis
added]. Accordingly, the three references to ac-
tivities which occurred at least [eight] months be-
fore the alleged extortion may not constitute the
basis of Hobbs Act jurisdiction.

2Hence, as the Court of Appeals correctly ru'ed, ‘‘the Travel
Act convictions were based entirely on the Federal Hobbs Act vio-
lation. Accordingly, if the Hobbs Act conviction is reversed so
must be the Travel Act convictions.’’ 725 F. 2d at 378 n. 3.

7

(Reply Br. at 5-6). The Sixth Circuit nonetheless af-
firmed, but did not directly address the questions Hollis
presented for review.

The principal theory of jurisdiction advanced by
the government at trial and on appeal was based on the
Travel Act violations. Yet the United States did not
dispute Hollis’ contention that Hobbs Act jurisdiction
may not properly rest on the same acts which form the
bases of Travel Act violations. The Court of Appeals
skirted the issue: ‘‘We need not consider whether the
acts that formed the bases of the Travel Act violations
(telephone calls and an airplane trip to Florida made by
Hollis) . . . could constitute a sufficient effect on com-
merce.’’ 725 F. 2d at 381 n. 7.

The Court instead predicated Hobbs Act jurisdic-
tion on a novel theory which the government did not
advance at trial or on appeal. Relying on Sherman
Act definitions of commerce, the panel held that Dr.
Pugh’s medical services to the Commonwealth of Ken-
tucky, and the Commonwealth’s payment therefor, con-
stituted the affected commerce. 725 F. 2d at 380. The
Court reasoned :

The transaction between Pugh and Hollis could
also be characterized as receipt by Pugh of $5,000
followed by a $2,100 payment from Pugh to Hollis.
The $2,100 payment to Hollis was also commerce,
however, since Hollis immediately took the money
from Florida back to Kentucky. The practical ef-
fect of the extortion is the same under either char-
acterization: instead of $5,000 moving from Ken-
tucky to Florida, only $2,900 ends up in Florida.

8

Id. n. 5. The Court also opined, in dicta, that the
Hobbs Act ‘‘is broad enough to include even effect on
commerce that occur long before the extortion.’’ 725
F., 2d at 380.

Hollis urged the Court to reconsider its decision
since, inter alia, it violated his due process and jury
trial rights by affirming on a theory which the govern-
ment did not advance at trial or on appeal. Dunn v.
United States, 442 U. 8.100 (1979). The Court denied
tLe petition for rehearing without comment (Appendix
‘“‘B’’), but granted until April 16, 1984, a motion to
stay the mandate pending application for writ of cer-
tiorari (Appendix ‘‘C’’).

REASONS FOR GRANTING THE WRIT

I. The Court of Appeals Violated Petitioner’s Due Process
and Jury Trial Rights by Affirming on a Theory of
Hobbs Act Jurisdiction Which . 2 Government Did Not
Advance at Trial or on Appeal.

An appellate court’s affirmance of a conviction
based on a theory which was neither alleged nor sub-
mitted to the jury violations due process. Dunn v.
United States, 442 U. 8. 100 (1979). Dunn was in-
dicted of making false declarations to a grand jury.
The indictment charged that Dunn’s grand jury tes-
timony was inconsistent with statements made during
ancillary proceedings on September 30, 1976. ‘‘That
was also the theory on which the case was tried and
submitted to the jury.’”’ 442 U.S. at 106. The Tenth
Cireuit affirmed Dunn’s conviction on the ground that
his grand jury testimony was inconsistent with state-

9

ments made on October 21, 1976. The Court reasoned

that since Dunn’s “October 21 testimony was ‘inex-

tricably related’ to his September 30 declaration . . .

[Dunnj could have anticipated that the prosecution

would introduce the October testimony.’’ Jd. at 105.
The Supreme Court held, inter alia:

But while there was no variance between the
indictment and proof at trial, there was a discrep-
ancy between the basis on which the jury rendered
its verdict and that on which the Court of Ap-
peals sustained [Dunn’s] conviction. Whereas
the jury was instructed to rest its decision on
Dunn’s September statement, the Tenth Circuit
predicated its affirmance on [Dunn’s] October
testimony. The Government concedes that this
ruling was erroneous. .. .

To uphold a conviction on a charge that was
neither alleged in an indictment nor presented to
a jury at trial offends the most basic notions of
due process. Few constitutional principles are
more firmly established than a defendant’s right
to be heard on the specific charges of which he is
accused. [Citations omitted]. There is, to be
sure, no glaring distinction between the Govern-
ment’s theory at trial and the Tenth Circuit’s
analysis on appeal. The jury might well have
reached the same verdict had the prosecution built
its case on petitioner’s October 21 testimony adopt-
ing his September 30 statement rather than on the
September statement itself. But the offense was
not so defined, and appellate courts are not free to
revise the basis on which a defendant is convicted
simply because the same result would likely obtain
on retrial,

10

Id. at 106-107. Accord: Cole v. Arkansas, 333 U. 8.
196, 201-202 (1948) (‘‘To conform to due process of
law, petitioners were entitled to have validity of their
convictions appraised on consideration of the case as
it was tried as the issues were determined in the trial]
court.’’). See also Presnell v. Georgia, 439 U.S. 14
(1978) ; Gregory v. Chicago, 394 U. 8. 111, 122-24
(1969) (Black, J., concurring) ; Spevack v. Klein, 385
U. 8S. 511, 518 (1967).

The Dumn rationale applies a fortiori in this case.
Unlike the situation in Dunn, there is a ‘‘glaring dis-
tinction between the Government’s theory at trial and
the [Sixth] Circuit’s analysis on appeal.’’ in «ddition,
‘“‘the validity of the [Court’s] theory is nov self-evi-
dent. Had the government unveiled it at trial, [pe-
titioner] would have had respectable grounds to try
to contest it.’’ United States v. Parrilla Bonilla, 648
F. 2d 1373, 1384 (1st Cir. 1981). Petitioner did in fact
contest the validity of the Court’s theories in his pe-
tition for rehearing en banc; yet the Court denied the
petition without comment. Finally, Dunn is disposi-
tive since the Court of Appeals’ decision constitutes
an implicit concession that the evidence was insufficient
to support the Hobbs Act conviction on the theory on
which it was obtained. See Parrilla Bonilla, 648 F. 2d
at 1386.

The Court of Appeals, acting with the wisdom of
hindsight, determined that the evidence was sufficient
both to invoke federal jurisdiction and to prove a
substantive element of the Hobbs Act offense. Yet to
say that the jury considered the novel theory on which

11

the Court based its decision is to engage in gross fic-
tion. As Hollis urged in his petition for rehearing en
bane, the Court of Appeals effectively took judicial
notice that the government proved the requisite effect
on commerce:

When an appellate court concludes that the
evidence is sufficient to satisfy a theory which was
not advanced by the Government, it effectively
takes judicial notice that the evidence itself exists.
For without a theory linking the facts to some
basis for invoking federal jurisdiction, the evi-
dence is insufficient. The raw facts themselves
provide no basis for federal jurisdiction. It is
only because the panel skillfully constructs a
theory which the facts will support that it con-
cludes the evidence is sufficient.

[Footnote omitted]. Petition for Rehearing, p. 9.

In sum, it is manifest that the Court of Appeals
affirmed Hollis’ Hobbs Act conviction on grounds
which the government did not advance at trial or on
appeal. The Court of Appeals decision therefore
violated Hollis’ right to due process both at trial and
on appeal. Since the theory on which the Court con-
cluded the evidence was sufficient was first unveiled in
the Court of Appeals decision itseif, petitioner was also
denied the right to contest the theory in the Sixth
Circuit. Certiorari should be granted to review a
judgment which squarely conflicts with the mandates
of the Constitution and this Court.

12

II. Certiorari Should Be Granted to Resolve the Tension
Between the Appellate Rules That Courts Do Not
Scrutinize the Reasoning Process of Juries, Yet They
May Not Affirm on a Theory of the Case Not Advanced
at Trial.

If Dunn does not demand that petitioner’s Hobbs
Act conviction be vacated, it must be because the theory
on which the Court of Appeals affirmed was in fact ad-
vanced at trial. One might argue that the Court viewed
the evidence in the light most favorable to the verdict
and concluded that a rational jury could have found
the requisite effect on commerce based on the theory
advanced in the Court’s decision. If so, this case un-
derscores a tension between two important appellate
principles: courts do not scrutinize the reasoning proc-
ess of juries;* yet they may not affirm on a theory of
the case not advanced at trial.

This tension could be obviated simply by saying that
Dunn must yield to the rule that courts do not seruti-
nize the reasoning process of juries. The Court of
Appeals apparently took such an approach in this case
by refusing to grant Hollis’ petition for rehearing.
Other Circuits, however, have resolved this tension in
favor of the defendant-appellant’s constitutional
rights.

In United States v. Patrin, 575 F. 2d 708 (9th Cir.
1978), a pre-Dunn decision, the Court reversed convic-

3See, e.g., Jackson v. Virginia, 443 U. S. 307, 319 n. 13 (1979)
(‘‘the standard announced today .. . does not require scrutiny
of the reasoning process actually used by the factfinder — if
known.’’); Dunn v. United States, 284 U. 8S. 390 (1932) (incon-
sistent verdicts permissible).

TO

13

tions of assaulting Forest Service employees for want
of subject matter jurisdiction. 18 U.S.C. § 1114 ‘‘de-
fine[s] two categories of federal employees. The first
. . . [is] the ‘game eategory’.’”’ 575 F. 2d at 710-11.
‘*( Throughout the trial . . . the government believed
it could validly prosecute the Patrins only under the
animal disease category.”’ Jd. at 711. On appeal,
however, the government cited authority which sanc-
tioned prosecution under the game category.

The Ninth Cireuit framed the issue as follows:
‘‘whether the government, having disavowed any in-
tent to rely upon the game prosecution category dur-
ing trial, can now invoke that section for the first time.
We hold that it cannot.’’ Jd. at 711. Citing Singleton
v. Wulff, 428 U.S. 106, 120 (1976), the Court explained
that ‘‘a federal appellate court does not consider an
issue not passed upon below.’’ Jd. at 712.

Patrin turned not on insufficiency of the evidence,
but rather on the issue of subject matter jurisdiction.
Patrin therefore should apply a fortiori to the issue of
evidence insufficiency. Since jurisdiction is a ques-
tion for the court, the Ninth Circuit arguably had in-
herent authority to invoke the game protection cate-
gory and affirm the convictions. But the Court was
reluctant to rely on hindsight:

We are not convinced that the Patrins would not
have conducted their defense differently had the
prosecutor argued for the application of the game
protection category instead of or in addition to
the animal disease category of § 1114. At the very
least, factual or legal challanges to the application

14

and continuing validity of the 38 year-old designa-
tion . . . could have been raised and explored.

Id. at 712-13.

The First Circuit has extended Dunn’s application
to cases ‘‘where the evidence is concededly insufficient
to support the convictions below on the theory on which
they were obtained.’’ United States v. Parrilla Bon-
illa, 648 F. 2d 1373, 1386 (1st Cir. 1981). Defendants
were convicted of ‘‘entering a restricted naval reser-
vation ‘for the purpose’ of entering without authori-
zation.’’ 648 F. 2d at 1377. Defendants contended
at trial and on appeal that the government failed to
prove that defendants were within the territorial
borders of a ‘‘military reservation.”’

The government ‘‘substantially changed its tack’’
on appeal. Jd. at 1384. It ‘‘conceded that ‘if, in fact,
the ordinary high tide line is the boundary of the base,
then the government failed to prove [appellants]
crossed it.’ . . . the government now maintains that
Camp Garcia encompasses Blue Beach in its entirety,
so that it is immaterial where on the beach appellants
were shown to have lccated.’’ Id.

The First Circuit explained:

The government’s recent position may well, for
all we know, be correct. The difficulty is, it was
never presented in or to the district court, and
therefore comes to this appellate tribunal without
benefit of findings or rulings below, and without
defendants’ having had the chance to confront it
at trial. Moreover, the validity of the govern-
ment’s present theory is not self-evident. Had the

15

government unveiled it at trial, appellants would
have had respectable grounds to try to contest it.

Id. at 1384.

The Court cited two reasons for its decision to re-
verse. The Court explained that affirmance would vio-
late Dunn and other Supreme Court precedent. In
addition, the Court, citing inter alia, Patrin, supra,
concluded :

We think ‘the fundamental concept that issues
on appeal are to be confined to those duly presented
to the trial court,’ [citation omitted] has force in
a criminal proceeding such as this where the evi-
dence is concededly insufficient to support the con-
victions below on the theory on which they were
obtained. [Footnote omitted].

We hold only that the government failed to
prove its case on the theories it advanced before
the district court, and that it is now too late to

save these prosecutions through advancement of a
different ‘theory of the case.’ [Footnote omitted].

Id. at 1386.

In a similar vein, the Circuit Courts of Appeal,
including the Sixth Circuit, have refused to take ju-
dicial notice of patent truths because of the concern
for guaranteeing the right to trial by jury on every
element of an offense. See e.g., United States v. Dior,
671 F. 2d 351, 357-58 (9th Cir. 1982) (refusing to take
judicial notice of American/Canadian Exchange rate
where value is an essential element of a crime) ; United
States y. Bliss, 642 F. 2d 390, 392 (10th Cir. 1981)

16

(defendant’s post-verdict concession that bank was a
‘‘national bank’’ ‘‘cannot be considered as evidence
necessary to sustain a jury’s verdict.’’) ; United States
y. Jones, 580 F. 2d 219, 223-224 (6th Cir. 1978) (to |
take judicial notice that South Central Bell is an inter- ,
state communication facility would deprive the defend- |
ant of his right to have the jury ‘‘ignore even uncon-
troverted facts in reaching a verdict.’’). The Court
of Appeals decision in this case squarely conflicts with
the rationale underlying the reasons courts are loathe
to take judicial notice on appeal. The Court should
have avoided the temptation to construct a theory
which the evidence did support, even if a ‘‘rational
jury’”’ conceivably might have based its decision on
that theory. Certiorari should be granted to guide
appellate courts in resolving the tension between two
rules which courts apply in countless criminal appeals.

III, Certiorari Should Be Granted to Establish Guidelines
to Assist Trial Courts in Determining Whether the
Hobbs Act’s Commerce Requirement Has Been Satis-
fied.

The Hobbs Act’s commerce requirement is unique
in at least two significant respects. First, it is both
a jurisdictional prerequisite and a substantive element
of the crime. Accordingly, the Fifth Circuit has
explained :

At the evidentiary stage of the trial there is
nothing unique about the commerce issue as a
‘jurisdictional element’. The issue does however
impose a great responsibility on the trial court to
proceed with caution because interference with

a

17

interstate commerce is the element of the conduct
here that enabled Congress to declare that com-
mon law extortion can be a federal crime. And
the words ‘affect interstate comerce’ . . . require
a legal conclusion based on the facts presented to
the jury.

Umted States v. Hyde, 448 F. 2d 815, 839 n. 34 (5th
Cir. 1971), cert. denied, 404 U. S. 1058 (1972). As
then-judge Stevens wrote for an en banc Court of the
Seventh Circuit:

The question is novel and significant. The
extraordinary growth of federal criminal litiga-
tion poses a serious threat to the quality of federal
justice; moreover, this growth may not only re-
flect but also contribute to the continuing transfer
of power from the several states to the national
government. Since we have no desire to accelerate
this trend unnecessarily, we approach the question
with a special regard for appellant’s claim that
the federal prosecutor has overreached the proper
limits of his jurisdiction. The importance of the
issue merited the fresh consideration of the court
sitting en banc. It should be decided neither by
simple extrapolation from the precedents on which
the government relies nor by merely distinguishing
the cases which have not yet carried us this far.

United States v. Staszcuk, 517 F. 2d 53, 55-56 (7th
Cir.), cert. denied, 423 U. 8. 837 (1975).

The second feature of the commerce requirement
is that this element may be satisfied so easily. Staszcuk
remains the leading decision on the breadth of Hobbs

18

Act jurisdiction. There the Court held that the Act
does not require that commerce be affected in fact, but
that ‘jurisdiction in the particular case is satisfied by
showing a realistic probability that an extortionate

transaction will have some effect on interstate com- 5
merce.’”’ Staszcuk, 517 F. 2d at 60. [Footnote
omitted].

Further, even a de minimus effect on commerce is
sufficient to satisfy the Act’s requirement. See, ¢.9.,
United States v. Mattson, 671 F. 2d 1020 (7th Cir.
1982). Accordingly, in any given case, the commerce
requirement could conceivably be satisfied by any one
of numerous theories. See, e.g., United States v, El-
ders, 569 F’, 2d 1020 (7th Cir. 1978).

As Hollis urged on petition for rehearing en banc:

It is unreasonable to require a defendant-ap-
pellant to raise and contest all bases of jurisdiction
which the Government could conceivably advance.

. Given that the jurisdiction element may
be proved in an infinite number of ways, it
is simply impossible for an appellant to refute
all theories, particularly those which the United
States doesn’t argue. Accordingly, the Govern-
ment must explain why the evidence is sufficient
to satisfv the commerce requirement, a substantive
element of a Hobbs Act violation. |

[Footnote omitted]. Petition for Rehearing, p. 7.

In the Court of Appeals, petitioner relied on two
decisions in which the Seventh Circuit declined to base
jurisdiction on theories not advanced by the govern-
ment. In United States v. Elders, 569 F. 2d 1020 (7th

ll

19

Cir. 1978), the government advanced four theories on
appeal. Rejecting one, the Court explained: ‘‘[t]he
case was not tried on that theory.’’ Jd. at 1025. It
dismissed another for the same reason: ‘‘The inflated
price issue was never raised in the trial court. . . .
The burden was on the Government to establish Hobbs
Act jurisdiction. . . . The government failed to carry
its entire burden.’”’ Jd. at 1025-26.

In Umted States v. Mattson, 671 F. 2d 1020 (7th
Cir. 1982), the victim withdrew $2,000 from checking
and savings accounts and borrowed an additional $1,000
to make the extortionate payment. The Seventh Cir-
cuit could have found the requisite effect on commerce
by the payment of $3,000, since the extortion directly
affected the amount of the victim’s assets in interstate
commerce. ‘The Court, however, concluded that if
jurisdiction existed, it ‘‘could not conceive of an ex-
tortionate transaction which would not be punishable
under the Hobbs Act.’’ Jd. at 1025,

The trial) judge was urged on three occasions‘ to
determine whether a rational jury could have found
the proof sufficient to establish the requisite effect on
commerce. Jackson v. Virginia, 443 U. 8. 307, 318-19
(1979). On each occasion, the District Court over-
ruled the motion without comment. Had the trial
judge articulated the theory on which the Court of
Appeals predicated its affirmance, petitioner could have
contested it in the District Court. But since the trial
judge did not state on the record the basis for his con-

4At the close of the government’s case-in-chief, at the close of
all the evidence, and on motion for a new trial.

20

clusion that the government satisfied the commerce
requirement, the Court of Appeals was forced either
to reverse or to construct a theory which the facts did
support.

Certiorari should be granted to establish guidelines
to assist trial courts in determining whether the gov-
ernment has satisfied the Hobbs Act’s commerce re-
quirement. Trial courts shoula, on appropriate motion,
require the United States to articulate the reasons it
contends commerce is affected. The trial judge should
determine whether the jurisdictional component has
been satisfied, and then, whether a rational jury could
find the evidence sufficient to support the theories ad-
vanced by the government.

This procedure would permit a defendant to test
the legal merits of such theories before the jury could
consider them. More important, however, it would
enable a defendant to challenge the sufficiency of the
evidence as it relates to the theories advanced by the
government. Such a procedure would minimize the risk
that appellate courts would affirm on theories of the
case not advanced at trial. Finally, it would facilitate
the disposition of claims that the government failed
to prove elements involving inquiries in which both
judge and jury must engage.

The Court of Appeals decision in this case should
be compared with Mattson and Elders, two aecisions
cited above in which the Seventh Circuit refused to
affirm on theories not advanced at trial. It should also
be contrasted with United States v. Boston, 718 F. 2d
1511, 1516-17 (10th Cir. 1983), a decision in which the

21

evidence was properly deemed sufficient. In Boston,
the jury was instructed that it could find the requisite
effect on commerce based on any one of three alterna-
tive theories. 718 F. 2d at 1516-17. The defendant
therefore was permitted a meaningful opportunity to
contest the legal merits of the theories and the suffi-
ciency of the evidence both before and after jury de-
liberation. Had the District Court in this case em-
ployed a similar procedure, the Court of Appeals would
have been spared the chore of constructing a theory
which the facts indeed supported’

This case underscores the need for trial courts to
state on the record the bases for concluding that the
evidence supports legal theories advanced by the gov-
ernment. This need is particularly acute in cases in-
volving mixed inquiries of law and fact. Numerous
federal crimes contain elements which involve such
mixed inquiries. See, e.g., United States v. Johnson,
718 F. 2d 1317 (5th Cir. 1983) (en banc); United
States v. Parrilla Bonilla, 648 F. 2d 1373, 1386 (1st
Cir. 1981) ; United States v. Bliss, 642 F. 2d 390 (10th
Cir. 1981). Certiorari should be granted in this case
not just to correct the injustice inuerent in the deci-
sion below, but to establish guidelines to assist trial
courts in determining whether the evidence is sufficient

‘Petitioner does not contend that trial courts must frame in-
structions with the precision of the one given in Boston. Peti-
tioner instead urges that the government be required to articulate
its theories, and that the triai court be required to state on the
record the basis for the conclusion that the evidence supports those
theories.

22

to satisfy threshold legal issues such as the Hobbs Act’s
commerce requirement.

IV. Certiorari Should Be Granted to Review a Decision
Which Effectively Extends Hobbs Act Coverage to
Embrace All Extortion.

The Court of Appeals held that the extortion ‘‘af-
fected the amount of payment that moved in interstate
commerce.’’ 725 F. 2d at 380. Yet the Court’s opinion
does not explain how commerce was in fact affected.
The $5,000 payment would have moved in commerce
absent extortion; $2,100, the extortionate payment,
moved in commerce only because Hollis returned to
Kentucky. But the fact that ‘‘only $2,900 ends up in
Florida’’ (725 F. 2d at 380 n. 5), does not itself sug-
gest that commerce® was affected. The Court seems
to say that movement in commerce of the extortionate
payment is sufficient. Coupled with the ‘‘realistic prob-
ability’’ and the de minimis rules, e.g., United Svates,
v. Harding, 563 F. 2d 299 (6th Cir. 1977), cert. demed,
434 U. 8. 1062 (1978), the holding embraces all ex-
tortion, since there is always a likelihood that the ex-
tortionate payment wiil end up in interstate commerce.
And virtually all extortionate payments could be said
to affect commerce, for they typically are made in ex-
change for something which relates to commerce. See,

®*The Court holds that the victim’s services and the payment
therefore constitute the ‘‘commerce’’ which the extortion affected.
Yet it does not explain how commerce, according to this definition,
is affected. The extortion affected neither the quality nor quantity
of the victim’s services; it affected only ‘‘the amount of payment
that moved in commerce.’’ 725 F. 2d at 380. As noted, all ex-
tortion carries the potential to affect the amount of money that
moves in commerce.

a

f]

l

23

e.g., United States v. Mattson, 671 F. 2d 1020 (7th
Cir. 1982); United States v. Elders, 569 F. 2d 1020
(7th Cir. 1978).

The opinion implicitly acknowledged that no de-
cision has based Hobbs Act jurisdiction on the extor-
tionate payment itself. United States v. French, 628
F. 2d 1069 (8th Cir.), cert. denied, 449 U. S. 956
(1980), is apparently the only decision the Court con-
sidered analogous to this case. The Court correctly
noted that “‘French is not exactly on point with the
present case... .”’ 725 F. 2d at 380 n. 6. French
held that extortion from a business engaged in com-
meree was sufficient to satisfy the commerce require-
ments. The victim in French, a St. Louis bail bonds-
man, ‘‘acted as agent for a New York insurance firm.”’
725 F. 2d at 380. The Court explained that ‘‘the mo-
ment the extortionate payment was made, there was
an effect on interstate commerce, whether this effect
is characterized as extraction of a wrongful tribute
. . . from an interstate enterprise, or as an infusion
of corrupt practices into an enterprise whose activities
reached across state lines.’’ 628 F. 2d at 1078. The
proof that the victim was an interstate enterprise at
the time of the extortion constitutes the critical distinc-
tion between French and this case.’

TIn United States v. Mattson, 671 F. 2d 1020 (7th Cir. 1982),
the Court could have reasoned that commerce was affected the
moment the victim withdrew $2,000 from checking and savings
accounts and borrowed another $1,000. The Court of Appeals’
holding seems to suggest that commerce is affected whenever the
extortionate payment moves in commerce; in Mattson, $3,000 moved
from banks into the palms of the defendants.

24

The Court of Appeals also noted that ‘‘[nJeither
the [Hobbs Act] nor the Constitution requires that
the company be engaged in an interstate transaction
at the moment of the extortion. . . . Umited States
v. Hyde, 448 F. 2d 815, 836 (5th Cir., 1971), cert.
denied, 404 U. 8. 1058 (1972).’’ 725 F. 2d at 380. The
Court in Hyde, however, held that the government
proved the extortion prevented the establishment of
businesses ‘‘formed . . . with a stated purpose of go-
ing into activities that suyport a finding of interstate
commerce.”’ 448 F. 2d at 836. Hyde does not, there-
fore, extend Hobbs Act jurisdiction to include effects
on commerce which occurred long before the extortion.

Petitioner stressed in the Court of Appeals that
‘‘(t]he jurisdictional inquiry must, of course, focus on
the situation at the time of the offense’. [Emphasis
added]. United States v. Staszcuk, 517 F. 2d 53, 60
(7th Cir.), cert denied, 423 U. 8. 837 (1975). Peti-
tioner also emphasized (Brief at 38) that:

We have found no case which extends Hobbs
Act jurisdiction so far as to encompass the facts
of this case. If a sufficient nexus were found here,
we are unable to conceive of an extortionate trans-
action which would not be punishable under the
Hobbs Act. To so hold would mean that the ex-

tortion of money from any individual . . . could
arguably affect interstate commerce eventually.

United States v. Mattson, 671 F. 2d 1020, 1025 (7th
Cir. 1982).

Certiorari should be granted to review a decision
which effectively extends Hobbs Act coverage to em-
brace all extortion.

25

V. Certiorari Should Be Granted to Review a Decision
Which Effectively Holds That Hobbs Act Jurisdiction
May Rest on the Same Acts Which Form the Basis of
Travel Act Convictions.

The principal theory of jurisdiction advanced by
the Government at trial and on appeal was predicated
on the Travel Act violations. Yet the United States
did not dispute Hollis’ contention that jurisdiction may
not properly rest on the same acts which form the bases
of Travel Act violations. The Court of Appeals skirted
the issue: ‘‘We need not consider whether the acts
that formed the bases of the Travel Act violations
(telephone calls and an airplane trip to Florida made
by Hollis) . . . could constitute a sufficient effect on
commerce.’’

The Court’s holding, however, effectively embraces
this theory of jurisdiction. As noted earlier, if the
decision holds that the extortionate payment itself
affects commerce, then the Act would include virtually
all extortion. If, on the other hand, the Court reasons
that commerce is affected because the payment moved
in interstate commerce, then it effectively holds that
jurisdiction may be predicated on the same acts which
form ‘ie bases of Travel Act convictions.

The Court concluded that this is a case of an ‘‘ex-
tortion of a payment itself in commerce.’’ 725 F. 2d
at 380 n. 6. Yet the payment was in commerce only
because it ‘‘traveled’’ from Kentucky to Florida. Ju-
risdiction is thus based not on the payment itself, but
rather on the fact that Hollis transported the payment
and extortionate payment across state lines. Accord-

26

ingly, this Court should grant certiorari and hold that
the Hobbs Act’s commerce requirement may not rest
solely on the same acts which form the bases of Travel
Act convictions.

CONCLUSION

For any of the reasons set forth above, a writ of
certiorari should issue to review the order of the United
States Court of Appeals for the Sixth Circuit affirming
the petitioner’s convictions.

— submitted,
AMES A. SH

Suurrett, Mooney, McCoy,

CAMPBELL, LEATHERS & NEWCOMER
1200 Second National Plaza

301 East Main Street
Lexington, Kentucky 40507
(606) 233-2232

Counsel for Petitioner

27

CERTIFICATE OF SERVICE AND ENTRY
OF APPEARANCE

James A. Shuffett hereby certifies that this Writ of
Certiorari has been served on the United States by mail-
ing three (3) copies of same, first-class, postage prepaid,
to the Solicitor General, Department of Justice, Washing-
ton, D.C., 20530, on this the 1st day of May, 1984. Su-
preme Court Rules 28.3, 28.4(a), 28.5(b), 19.3

James A. Shuffett hereby enters an appearance on be-
half of the Petitioner, Kenneth E. Hollis. Supreme Court
Rules 28.5(b), 19.3.

James A, SHUFFETT

APPENDIX

29

APPENDIX A
No. 83-5071

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Unitep States or America, - - Plaintiff-Appellee,
v,
KennetH EK. Hous, - - - £Defendant-Appellant.

On Appeal from the United States District Court
for the Eastern District of Kentucky

Decided and Filed January 16, 1984

Before: Excren and Kennepy, Circuit Judges; and
Morton,* Chief District Judge.

Kewnepy, Circuit Judge. Hollis appeals his jury con-
victions of one count of extortion in violation of the Hobbs
Act, 18 U.S.C. § 1951,1 and three counts of violating the

*Honorable L. Clure Morton, Chief Judge, United States Dis-
trict Court for the Middle District of Tennessee, sitting by desig-
nation.

1The Hobbs Act provides in part:

(a) Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity

in commerce, by = or extortion . . . shall be fined .. .

or imprisoned .

(b) As used in this section—

(2) The term ‘‘commerce’’ means commerce . . . be-
tween any point in a State . . . and any point outside
thereof .

18 U.S.C. § 1961.

30

Travel Act, 18 U.S.C. § 1952(a)(3).? Hollis contends that
his convictions must be reversed, among other reasons, be-
cause the evidence was insufficient to show the effect on
commerce required for a Hobbs Act violation.’

Hollis, General Counsel for the Kentucky Department
of Labor from 1976-1980, was convicted of extorting $2100
from Dr. Travis Pugh, a Florida physician, by threatening
to withhold payment for Pugh’s services unless Pugh re-
turned part of the payment to Hollis. Pugh had performed
services for the Kentucky Department of Labor under an
agreement made through Hollis.

Pugh and an associate established the I & D Center, a
clinic in Kentucky for reading x-rays of potential black lung
disease victims for the Kentucky Department of Labor, in
April of 1976. Pugh moved his family to Kentucky with
the intention of staying one year, but returned to Florida

2The Travel Act provides in part:

(a) Whoever travels in interstate or foreign commerce or
uses any facility in interstate or foreign commerce, including
the mail, with intent to—

(3) otherwise promote, manage, establish, carry on, or
facilitate the promotion, management, establishment, or car-
rying on, of any unlawful activity, and thereafter performs
or attempts to perform any of the acts specified in subpara-
graphs (1), (2), and (3), shall be fined . . . or imprisoned

___ (b) As used in this section, ‘‘unlawful activity’’ means. . .
(2) extortion, bribery, or arson in violation cf the laws of the
State in which committed or of the United States.

18 U.S.C. § 1952.

’Since the government did not prove any violation of state ex-
tortion laws, the Travel Act convictions were based entirely on the
federal Hobbs Act violation. Accordingly, if the Hobbs Act con-
viction is reversed so must be the Travel Act convictions.

31

after ten days because there were not enough x-rays to be
read in Kentucky. Pugh nonetheless continued to read ex-
rays in Florida for the Kentucky Department of Labor,
receiving x-rays and sending reports by mail and flying
to Kentucky whenever needed for aepositions.

This continued even after the I & D Center closed in
September of 1976, although Pugh agreed to allow Hollis
to withold one payment to insure Pugh’s return to Ken-
tucky whenever depositions were needed. Pugh notified
Hollis that he would no longer do any work for the Ken-
tucky Department of Labor in early February of 1977 and
returned to Kentucky for the last group of depositions later
that month. The bill for that final group of depositions was
$5000.

Pugh testified that in October of 1977 Hollis called him
and threatened to hold up his check for $5000 for another
six months to a year unless he gave Hollis half the amount
of the check. Because Pugh needed the money immediately,
he testified, he finally agreed to pay Hollis $2100. Hollis
called Pugh again two days later to make travel arrange-
ments, and a few days after the initial call he flew to
Florida, where Pugh picked Hollis up at the airport. The
two then drove to Pugh’s bank, where Pugh deposited the
$5000 check Hollis had brought him, immediately withdrew
$2100 cash, and gave the cash to Hollis. Hollis then re-
turned to Kentucky.

The Hobbs Act penalizes “[w]hoever in any way or
degree . . . affects commerce . . . by robbery or extor-
tion.” 18 U.S.C. § 1951(a). Courts have consistently held
thet this language requires only a de minimis effect on
commerce. E.g., United States v. Richardson, 596 F. 2d 157
(6th Cir. 1979); United States v. Billups, 692 F. 2d 320
(4th Cir. 1982); United States v. French, 628 F. 2d 1069
(7th Cir.), cert. dented, 449 U.S. 956 (1980) ; United States
v. Hathaway, 534 F. 2d 386 (1st Cir.), cert. demed, 429 U.S.

32

819 (1976) ; United States v. Brown, 540 F. 2d 364 (8th Cir.
1976). The Supreme Court has said that the Hobbs Act
was intended “to use all the constitutional power Congress
has to punish interference with interstate commerce.”
Stirone v. United States, 361 U. 8S. 212, 215 (1960), See
also 8. Rep. No. 532, 73d Cong., 2d Sess. 1 (statute designed
“to extend Federal jurisdiction over all restraints of any
commerce within the scope of the Federal Government’s
constitutional powers”) (concerning predecessor of Hobbs
Act). And in United States v. Harding, 563 F. 2d 299, 301-
02 (6th Cir. 1977), cert. denied, 434 U. 8. 1062 (1978), this
Court approved the Seventh Circuit’s holding in United
States v. Staszcuk, 517 F. 2d 53 (7th Cir.) (en banc), cert.
denied, 423 U. S. 837 (1975), that it is sufficient that there
is a “realistic probability” that the extortion would affect
commerce.

A physician’s services if interstate in character may
constitute commerce. In Tarleton v. Meharry Medical Col-
lege, 771 F. 2d 1523, 1531 (6th Cir. 1983), this Court found
that movement of patients across state lines to a medical
facility constituted commerce. If interstate movement of
patients is commerce, we see no reason why the interstate
movement of a physician or of his work product would not
also be commerce. Cf. United States v. Oregon State
Medical Society, 343 U. 8. 326, 338 (1952), (services offered
by medical society not commerce since “wholly intrastate”).
The Evidence in the present case shows that Pugh, a Florida
physician, read x-rays of Kentucky patients in Florida and
mailed his reports from Florida to Kentucky. He also
traveled from Florida to Kentucky to give depositions.
Pugh’s services rendered to the Kentucky Department of
Labor therefore constituted commerce. Similarly, the pay-
ments made by the Kentucky Department of Labor to Pugh
were also commerce. Goldfarb v. Virginia State Bar, 421
U. 8S. 733, 787-88 (1975) (exchange of attorneys’ services

33

for money is commerce). Tarleton, supra; Ballard v. Blue
Shield, Inc., 543 F. 2d 1075, 1079 (4th Cir. 1976) (“the
payment exchanged for professional services constitutes
trade or commerce”), cert. denied, 430 U. S. 922 (1977).*

Hollis contends that his extortion nonetheless did not
affect any of this commerce because at the time of the ex-
tortion Pugh had ceased performing services in commerce.
Since Pugh had already withdrawn from commerce, and
there was no evidence concerning the likelihood that he
would re-enter commerce, Hollis argues that the govern-
ment has not proven any effect on commerce. The parties
argue the applicability of various decisions concerning
sufficiency of an indirect effect on commerce caused by ex-
tortion by or from a business that engages in commerce.
E.g., United States v. Mattson, 671 F. 2d 1020 (7th Cir.
1982). However, the possibility of an indirect effect need
not be considered if the extortion had a direct effect on
commerce,

Such a direct effect on commerce is evident in the pres-
ent case. The payments made by the Kentucky Department
of Labor to Pugh for his services constituted interstate
commerce. Payment for the services was an essential part
of the interstate transaction. But for the extortion, Pugh
would have been paid $5000 for the final group of deposi-

4All the cases cited in this paragraph involve the meaning of
‘*eommerce’’ under the Sherman Act. However, since the Hobbs
Act was intended to use the full congressional power to regulate
commerce, Stirone, supra, any activity that may constitute com-
merce under the Sherman Act may also constitute commerce un-
der the Hobbs Act. There is nothing in the Hobbs Act that would
restrict its reach to interstate movement of tangible goods. See
United States v. Gates, 616 F. 2d 1103 (9th Cir. 1980) (solicitation
of tourist business is commerce under the Hobbs Act).

34

tions. Because of the extortion, Pugh only received $2100.°
Hollis’ extortion therefore directly affected the amount of
payment that moved in interstate commerce.

In United States v. Hyde, 448 F. 2d 815, 836 (5th Cir.
1971), cert. denied, 404 U. 8S. 1058 (1972), the Fifth Circuit
said that “[n]jeither the [Hobbs Act] nor the Constitution
requires that the company be engaged in an interstate
transaction at the moment of the extortion to support
federal jurisdiction.” This is a case where the victim was
engaged in an interstate transaction at the moment of the
extortion, albeit in the payment end rather than the de-
livery end of the transaction. The present case is anal-
ogous to the situation in United States v. French, 628 F.. 2d
1069 (8th Cir.), cert. denied, 449 U. S. 956 (1980). In
French, a St. Louis city marshal was convicted under the
Hobbs Act of accepting reduced settlements for forfeited
bail bonds owed the city in return for cash payments. The
bail bondsman acted as an agent for a New York insurance
firm. The court found that “the moment the extortionate
payment was made, there was an effect on interstate com-
merce.” 628 F. 2d at 1078.°

‘The transaction between Pugh and Hollis could also be char-
acterized as receipt by Pugh of $5000 followed by a $2100 payment
from Pugh to Hollis. The $2100 payment to Hollis was also com-
merce, however, since Hollis immediately took the money from
Florida back to Kentucky. The practical effect of the extortion
is the same under either characterization: instead of $5000 moving
from Kentucky to Florida, only $2900 ends up in Florida.

*Prench is not exactly on point with the present case, since in
French there was no proof that the bondsman was acting for the
out-of-state firm with respect to the particular bonds involved.
The French court therefore had to rely on extortion from a busi-
ness engaged in commerce rather than extortion of a payment itself
in commerce. However, the fact that the French court noted that
lack of proof suggests that the court could have found its decision
easier had the bonds been underwritten by the out-of-state firm.

35

There is nothing in the legislative history of the Hobbs
Act that would require an effect on commerce subsequent
to, rather than contemporaneous with, the extortion. The
House Committee on the Judiciary said in its report on
the proposed Act, “those persons who have been impeding
interstate commerce and levying tribute from freeborn
American citizens engaged in interstate commerce shall
not be permitted to continue such practices.” H.R. Rep.
No. 238, 79th Cong., 2d Sess., reprinted in 1946 U. 8. Code
Congressional Service 1360, 1370. Levying tribute from
persons engaged in interstate commerce would normally
include levying tribute from one engaged in commerce at
the moment the levy is exacted. Congressional intent to
include a broad range of effects on commerce is even clearer
when the language of the Anti-Racketeering Act of 1934,
the Hobbs Act’s predecessor, is considered. That statute
penalized: “Any person who, in connection with or in rela-
tion to any act in any way or in any degree affecting trade
or commerce [extorts].” 48 Stat. 979. This language is
broad enough to include even effects on commerce that
occur before the extortion. For instance, Hollis’ agreement
to pay Pugh for reading x-rays in Florida was an act
affecting commerce, and Hollis subsequent extortion could
be said to be in connection with that act. The Hobbs Act
was intended to broaden, not contract, the scope of the
earlier anti-racketeering law. United States v. Staszcuk,
517 F. 2d 53, 56-57 (7th Cir.) (en banc), cert. denied, 423
U. S. 837 (1975). We need not rely on the 1934 Act, how-
ever, since the language of the current statute is broad
enough to include effects on commerce contemporaneous

36

with an extortion. The evidence against Hollis was suffi-
cient to satisfy the commerce element of the Hobb Act.?

Hollis also contends that a portion of the District
Court’s charge to the jury was impermissibly coercive and
that the government’s actions during discovery require re-
versal. We have considered these contentions and find
them witheut merit.

Accordingly, the judgment of the District Court is
affirmed.

7™We need not consider whether the acts that formed the bases
for the Travel Act violations (telephone calls and an airplane trip
to Florida made by Hollis) or the possibility that the extortion may
have dissuaded Pugh from re-entering commerce could constitute
a sufficient effect on commerce.

37

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 83-5071
Unirep States or America, - - Plaintiff-Appellee
v.
Kenneto BE. Hous, - - - Defendant-Appellant

ORDER—Filed March 2, 1984

Before: Encore. and Kennepy, Circuit Judges; and Morton,
Chief District Judge*

The Court not having favored rehearing en banc in the
above case, the petition for rehearing is referred to our
panel for disposition.

Upon consideration, Ir Is Orperep that the petition for
rehearing be and hereby is Dentep.

Enterep By OrpDER or THE CouRT

/s/ John P. Hehman, Clerk

*Honorable L. Clure Morton, Chief Judge, United States Dis-
trict Court for the Middle District of Tennessee, sitting by desig-

nation.

38

APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 83-5071
Unirep States or America, - ~- Plaintiff-Appellee
v.
Kennetu E. Hous, - - - Defendant-Appellant

ORDER—Filed March 15, 1984

Upon consideration of the appellant’s motion to stay the
mandate pending application for writ of certiorari,

Ir Is Onperep that the motion be and it is hereby granted
until April 16, 1984.

/s/ John P. Hehman, Clerk

39

APPENDIX D
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OP KENTUCKY

FRANKFORT
Criminal No. 82-5
mom
Unirep Statesor America, - - - ~- Plaintiff
v.
Kennetu E. Hous, = - - - - - Defendant

BILL OF PARTICULARS

Comes the United States of America, by counsel, and
files the folowing Bill of Particulars:

1. Interstate Commerce

Dr. Travis Pugh, III was at the time of the alleged
extortion a medical doctor who was engaged in interstate
commerce in the extent that he had earlier contracted with
the State of Kentucky for the delivery of certain profes-
sional services under the State’s Black Lung Program. Dr.
Pugh resided and maintained a practice in Ft. Myers, Flor-
ida. He was mailed medical files, including x-rays from the
Kentucky Department of Labor and the Special Fund of
the Workmen’s Compensation Board, which he returned
by mail to the State after they had been examined and read.
Dr. Pugh traveled on several occasions from Florida to
Kentucky, and returned, for the specific purpose of giving
medical depositions with regard to his reading of the x-
rays. In addition, it was sometimes necessary for Dr.

40

Pugh to make and receive interstate telephone calls in
connection with his work with the State of Kentucky.

The evidence will show that the defendant made two
or more interstate telephone calls between Kentucky and
Florida. On the date described in the indictment, the de-
fendant himself twice flew between the two states. Hach
of these actions was in and affected interstate commerce.

Some of the individual x-rays which were read or reread
by Dr. Pugh had been made by other medical professionals
outside the State of Kentucky, e.g., Ohio.

Further, the Commonwealth of Kentucky was itself
heavily involved, directly and indirectly, in interstate com-
merce. Its finances and funds were deposited in one or
more banks which invested the funds out-of-state. The
State had employees who resided out-of-state and traveled
interstate between their homes and their jobs. The State
was involved with numerous out-of-state vendors and con-
tractors. A number of the employees and physicians con-
nected with the Black Lung Program traveled to out-of-
state seminars for special training.

2. Extortion and Bribery statutes
(a) United States: 18 U.S.C. § 1951 (Hobbs Act).

(b) Kentucky: K.R.S. 514.080(1)(d) (Theft by Ex-
tortion); 521.020(1)(b) (Bribery of Public Serv-
ant) ; 522.020 (Official Misconduct in the First De-
gree).

(c) Florida: Title 44 § 836.05 (Threats; extortion).

The above Bill is made in good faith and with the view
that the defendant is entitled to notice of the facts and
allegations contained herein. The United States expressly
reserves its right to supplement or amend the Bill, with

41

leave of Court, as provided by Rule 7(f), should additional
or contrary information become known to the government.

Respectfully submitted,

Louis DeFalaise
United States Attorney

By:

/s/ C. Cleveland Gambill
Assistant U. 8. Attorney

CERTIFICATE

I hereby certify that the foregoing Bill of Particulars
was served upon the defendant by mailing a true copy
thereof to his attorney of record, Hon. James A. Shuffett
of Shuffett, Kenton, Curry & Karem, 109 North Mill Street,
Lexington, Kentucky 40507-1158, this the 20th day of Sep-
tember, 1982.

/s/ C. Cleveland Gambill

42

APPENDIX E

THE GOVERNMENT’S THEORIES ADVANCED ON
MOTION FOR JUDGMENT OF ACQUITTAL AT
THE CLOSE OF ITS CASE-IN-CHIEF

“With respect to the effect on interstate commerce, the
Sixth Circuit has acknowledged that all we have to prove
is a minimal effect on commerce, and that . . . holding is
found in the case of United States v. Hardy, [sic] 563 F. 2d
299 at Pages 301, 302. It’s a 1977 case, and there are other
cases from the Sixth Circuit on that aspect.

I think that Mr. Shuffett, with all respect, attempted
to draw too fine a line as to the interstate commerce as-
pect of this case. This check was written perhaps in March
of 1977, and it did not get to him until October. During
that time, according to the testimony in this case, Dr. Pugh
was traveling to and from Florida up to Kentucky, and
the check was in fact brought in interstate commerce, and
we submit, Your Honor, that the interstate commerce was
affected. He was involved very much in a business which
was based in Florida at time [sic]and in Kentucky at times,
and he traveled freely between the two states during the
time period of when he was working for the I & D Center
and when he was on his own.”

(Tr., 1/5/83, pp. 498-99).

43

APPENDIX F

MOTION FOR JUDGMENT OF ACQUITTAL
AT THE CLOSE OF ALL THE EVIDENCE

Mr. Shuffett: Your Honor, we would like to renew our
motion for judgment of acquittal made at the close of the
prosecution’s case.

The Court: All right. Let the motion be Overruten.
(Tr. 1/6/83, pp. 813-14).

44

APPENDIX G
ARGUMENTS ON MOTION FOR A NEW TRIAL
Defendant’s Argument

The first area is the commerce element or the four
offenses. Your Honor will recall that the first count, the
Hobbs Act, requires that commerce be affected to some
minimal amount.

Counts 2, 3 and 4 under the Travel Act require travel-
ing in interstate commerce or use of an interstate facility.
Now, in this particular case, there was no commerce af-
fected, as shown by the proof, other than the actual travel
and the use of the facility referred to in Counts 2, 3 and 4.

It is the defendant’s position that there has to be other
commerce in order for Count 1 to have had prima facie
proof presented. Otherwise, it is the same offense, and
the block part attached ought to block the prosecution of
all, or of more than one at least, particularly the first count,
which was in effect superseded by the specific offenses
charged in 2, 3, and 4.

Now, the prosecution probably .. . they probably
could, I don’t know . . . could have proved that Dr. Pugh
was engaged in interstate commerce in some manner. It’s
possible that they couldn’t prove it. But, either way, they
didn’t prove it. There was no testimony concerning Dr.
Pugh, the alleged victim, being in any manner engaged in
interstate commerce. They did not even prove that he
ever bought a box of paper clips from Indiana. Now,
maybe the reason they didn’t prove that was because he
vas operating through a Professional Service Corporation,
and therefore, they could not prove that the partciular in-
dividual was interstate commerce. Maybe his corporation
was involved, but he, himself, may not have been.

45

Kither way, they did not prove it.

We submit that the commerce of interstate travel, for
use of interstate facilities required in Counts 2, 3 and 4
cannot in this case be the commerce affected that is required
under Count 1, the Hobbs Act.

(Tr. 2/1/83, pp. 2-4).

The Government’s Argument

Mr. Trevey: Taking up the first of his arguments, that
of Interstate Commerce . . . and, before I argue any of
this, I think, Detective Henderson here so advised me that
he thought Mr. Shuffett brought up most of these arguments
at the close of, number one, the government’s case, and then,
two, at the close of his case. Similar grounds were argued
at the time and overruled by the Court.

But, just to mention a few of the things that I recall
during the short period of time that I was sitting in the
trial of the case, as far as his affect on commerce was con-
cerned, we established that the telephones were used ex-
tensively. The calls of October the 24th and 26th, which
set up the extortion from Dr. Pugh. The use of the air-
lines, which was admitted by the Defendant Hollis. The
United States also established that there were other doctors
utilized by the Department of Labor which practiced out-
side of the Commonwealth of Kentucky; and, even the
money that was paid on this case to Dr. Pugh, that money
was earned by Dr. Pugh for reading of the x-rays while
he was in the State of Florida.

In addition to that, during the period the conspiracy
was established on testimony, I think, that Dr. Pugh trav-
eled extensively from Florida to Bowling Green, after he
read the x-rays in Florida, to give depositions in Bowling
Green.

He makes some argument as to economic law in his mo-
tion. I don’t think he argued a great deal about it here

ce

46

this morning. But, the United States did establish, and Dr.
Pugh’s testimony was that he was afraid he wouldn’t get
any money at all unless he made this $2,100.00 payment
to Mr. Hollis, and that he was afraid of Mr. Hollis in his
position, inasmuch as Mr. Hollis was General Counsel for
the Department of Human Resources; he did testify that
he was afraid of his position.

(Tr., 2/1/83, pp. 12-14).

The Court: All right. Gentlemen, I believe, the case
was fairly tried, and I don’t believe there’s any ground to
upset the verdict of the jury. The motion for a judgment
of acquittal or in the alternative for a new trial is Over-
BULED.

(Tr., 2/1/83, p. 17).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2782%3A1. Public record. Not legal advice.