Respondents Brief — Jannotti v. United States

} Uitice - Supreme Court, U.S

i pe iE 'BD

©, 2 SAP .2. 1994

Nos. 83-1891 and 83-1892

ALEXANDER L. STEVAS.,

MLERK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

oS

HARRY P. JANNOTTI, PETITIONER

Vv.

UNITED STATES OF AMERICA

GEORGE X. SCHWARTZ, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

Department of Justice

Washington, D. C. 20530

(202) 633-2217

BEST AVAILABLE COPY

QUESTIONS PRESENTED

|. Whether petitioners were entrapped as a matter of

law.

2. Whether the Due Process Clause requires that peti-

tioners’ convictions be reversed because the government’s

conduct of the investigation was improper.

3. Whether petitioners’ convictions should be set aside

because the trial court did not specifically instruct the jury

that it was to find that the government induced petitioners

to commit the offenses unless the government disproved

that fact beyond a reasonable doubt, when the trial court

did instruct the jury that the government was required both

to prove predisposition and to disprove entrapment beyond

a reasonable doubt.

4. Whether petitioners’ convictions for conspiracy to

commit extortion that interferes with interstate commerce,

in violation of the Hobbs Act (18 U.S.C. 1951), must be

reversed because the illicit payments were received from

undercover FBI agents in connection with a fictitious

scheme and therefore could not actually have affected inter-

state commerce.

5. Whether petitioners’ Hobbs Act convictions should be

set aside on the ground that petitioners did not induce or

demand the payments made to them.

(1)

TABLE OF CONTENTS

Page

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MOT ETO TEE MTT ECT OTTER TTT CTC 14

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TABLE OF AUTHORITIES

Cases:

Berrier v. Egeler, 583 F.2d 51S,

ee Se EP, DD ccc ctedossonsease 23

Davis v. United States, 160 U.S. 469 .......... 23

Government of the Virgin Islands v. Toto,

Ee ee ee 22

Hampton v. United States,

ES eee eee 17, 19

Notaro v. United States, 363 F.2d 169 ......... 23

Perez v. United States, 402 U.S. 146 .......... 26

Sherman v. United States,

ee ere 15, 17

Sorrells v. United States, 287 U.S. 435 ........ 17

Stirone v. United | BR ay) » Sere 26

United States v. Alston, 551 F.2d 315 ......... 23

United States v. Ambrose, 483 F.2d 742 ....... 23

United States v. Benavidez, 558 F.2d 308 ...... 23

United States v. Corrigan, 548 F.2d 879 ....... 23

United States v. Dearmore, 672 F.2d 738 ...... 23

(IIT)

IV

Page

Cases—Continued:

United States v. Kelly, 707 F.2d 1460,

cert. denied, No. 83-308 (Oct. 11, 1983) ...... 16

United States v. Kotteakos, 328 U.S. 750 ...... 22

United States v. Myers, 527 F. Supp. 1206,

aff'd, rev'd and remanded in part, 692 F.2d

823, cert. denied, 461 U.S. 961 ...... 2, 16, 18, 19

United States v. O’Grady, No. 82-1344

CS as SED SR URAUEMECESRUHERS Seemeids 29

United States v. Read, 658 F.2d 1225 ......... 23

United States v. Rindone, 631 F.2d 491 ....... 25

United States v. Rose, 590 F.2d 232,

cert. Gemmed, 662 U.5. SEO ond cic cccacss 25-26

United States v. Russell, 411 U.S. 423 ......... 17

United States v. Sherman, 200 F.2d 880,

gg SRR an ro a 22

United States v. Silvestri, 719 F.2d 577 ........ 16

United States v. Staszcuk, 517 F.2d 53,

cert. denied, 423 U.S. 837 ............ 24, 25, 26

United States v. Tate, 554 F.2d 1341 .......... 23

United States v. Thompson, 493 F.2d 305,

cert. dented, 419 U.S. 834 .....ccccccccccces 26

United States v. Twigg, 588 F.2d 373 ......... 20

United States v. Waldron, 590 F.2d 33,

OEE. GI, GE CITE. Ge cn cc ccnccccccacess 25

United States v. Watson, 489 F.2d 504 ........ 20

Page

Cases—Continued:

United States v. Weisz, 718 F.2d 413,

cert. denied, No. 83-1036 (Feb. 21, 1984) ..... 16

United States v. Williams, 705 F.2d 603,

cert. denied, No. 83-256 (Dec. 5, 1983) ....... 16

United States v. Wolffs, 594 F.2d 77 .......... 23

Constitution and statutes:

U.S. Const.:

Art. I, § 8, Cl.3 (Commerce

Re ich cdensbhes bbukee tener ens 26, 27

Amend. VI (Due Process Clause) ...... 16, 17

Hobbs Act, 16 U.SA.. TORTIE) 6 veccvsacscccs 2, 23

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. T9GHE) 5 ous ccescceresevcsens 2

aE ee

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 83-1891

HARRY P. JANNOTTI, PETITIONER

V.

UNITED STATES OF AMERICA

No. 83-1892

GEORGE X. SCHWARTZ, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals affirming petitioners’

convictions (Pet. App. 1-39) is reported at 729 F.2d 213. An

earlier opinion of the court of appeals (Pet. App. 47-151),

reversing the district court’s order entering post-trial judg-

ments of acquittal, is reported at 673 F.2d 578. The post-

trial opinion of the district court (Pet. App. 175-223) is

reported at 501 F. Supp. 1182. The district court’s pretrial

opinion dismissing certain counts of the indictment (Pet.

App. 153-172) is unreported.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

February 21, 1984. A petition for rehearing was denied on

March 20, 1984. The petitions for a writ of certiorari were

filed on May 18, 1984. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Pennsylvania, each petitioner

was convicted on one count of conspiracy to obstruct inter-

state commerce, in violation of the Hobbs Act, 18 U.S.C.

1951(a). Petitioner Schwartz was also convicted on one

count of conspiracy to violate the Racketeer Influenced and

Corrupt Organizations Act (18 U.S.C. 1962(d)). Petitioner

Jannotti was sentenced to a six month term of imprison-

ment and fined $2,000, and petitioner Schwartz was sen-

tenced to a one year term of imprisonment and fined

$10,000.

1. Petitioners’ offenses arose out of the FBI operation

known as Abscam. That operation involved undercover

agents who posed as representatives of a wealthy Arab sheik

who was seeking to invest money in the United States and to

emigrate here. The Abscam operation led first to Angelo

Errichetti, the mayor of Camden, New Jersey, who was

subsequently convicted of numerous charges arising out of

the investigation. See United States v. Myers, 692 F.2d 823

(2d Cir. 1982), cert. denied, 461 U.S. 961 (1983). Errichetti

introduced the agents to Howard Criden, a lawyer from

Philadelphia. At one point in his dealings with the agents,

Criden told them that, for a fee, he could arrange introduc-

tions to various congressmen who would help the sheik

remain in America after he emigrated. The agents assented.

Four congressmen were subsequently indicted and con-

victed for agreeing to sponsor private asylum legislation on

behalf of the sheik in exchange for cash payments. See

United States v. Myers, supra.

3

One of those congressmen, Representative Myers of Phi-

ladelphia, suggested that if the sheik invested in a project in

his district it would provide a credible explanation for any

future assistance to the sheik. FBI informant Weinberg,

following Myers’s suggestion, contacted Criden, told him

that the sheik was “looking to build a hotel” in Philadel-

phia, and suggested that Criden arrange meetings with con-

gressmen regarding the hotel project. Pet. App. 51-52; Tr.

2384A.! Criden responded that Weinberg should find out

the specifics of the project so that Criden could direct them

to officials who could “give you more help” in connection

with such a project than a congressman would (Pet. App.

52). Criden boasted that he knew “Everybody!” in Phila-

delphia and said: “Remember, I got a[law] partner who's a

city councilman” (ibid.).

A week later, FBI undercover agents Wald and Haridop-

olos, posing as representatives of the sheik, met with Criden

in the agents’ hotel room. Their conversation was video-

taped. Criden assured them that they could deal candidly

with his law partner, city counciiman Louis C. Johanson,

and that the “tariff” for Johanson’s help would be $25,000.

Pet. App. 52-54. Criden also told the agents that petitioner

Schwartz, the City Council President, was a powerful figure

in city government, and that the agents could also “deal”

with Schwartz, although “[hje may want to handle it indi-

rectly” (id. at $3). Criden said the “tariff” for Schwartz

would be $50,000. The agents balked at this figure and

suggested $30,000; Criden agreed to “run it up the flagpole.”

Criden asked for a fee of $10,000 for delivering both city

councilmen. /d. at 54.

'This citation to the transcript is derived from the briefs filed by the

government in the court of appeals.

4

Several hours later, Criden returned to the hotel room

with Johanson. Johanson assured the agents that the hotel

project would be able to avoid any conflict with city licens-

ing and inspecting authorities. Specifically, he said that the

authorities are “not gonna monkey with you for a minute

because they’re gonna be told not to” (Pet. App. 54). Johan-

son went on to state that he, Schwartz, and petitioner

Jannotti “run the City Council.” The following conversa-

tion about Jannotti then occurred (Pet. App. 55):

WALD: Would he be interested in doing business

with us.

JOHANSON: I don’t know that it’s necessary but if

you want to we can.

WALD: I don’t know — if it is — you're the best

judge of that.

JOHANSON: I think George [Schwartz] is ah —

CRIDEN: Well, it might not be a bad idea to bring

Harry [Jannotti] up.

JOHANSON: Wecan bring Harry up. Harry’s the

Majority Leader. He’s the — ya know, second in

command.

WALD: Yea.

JOHANSON: He’s got seniority.

Johanson was given a $25,000 payment. The following

exchanges occurred in connection with this payment (Pet.

55):

HARIDOPOLOS: Are you acquainted with how

much ah, ya know, ah for the favor and for all these

assur — assurances, right.

CRIDEN: Right.

HARIDOPOLOS: You know how much it 1s?

JOHANSON: Sure.

HARIDOPOLOS: How much is it?

JOHANSON: Twenty-five.

HARIDOPOLOS: Okay, ah but, of course, ah, we

have to have these proper assurances. You do us a

favor, we’re doin’ you a favor.

CRIDEN: Obviously.

JOHANSON: Sure.

* a * * *

WALD: And for 25 we've got a friend.

JOHANSON: Right.

Three days later Criden brought Schwartz to meet with

the sheik’s representatives. This meeting was also video-

taped. Criden stated that he had discussed the hotel project

“at length” with Schwartz. Undercover agent Wald said

that he was concerned about “problems such as * * * zon-

ing and variances and this type of thing” and that his

mission was to “take care of any potential problems long

before they exist” (Pet. App. 58). As the court of appeals put

it, “Schwartz responded to this overture with a soliloquy on

his own political power and importance” (ibid.). The fol-

lowing exchange, quoted by the court of appeals, then

occurred (id. at 58-59):

SCHWARTZ: * * * I have been close to every

chairman [of the Democratic National Committee]

* * * J am a member of the Democratic National

2Criden was introduced to Schwartz by a mutual friend, a municipal

judge, who told Schwartz that Criden represented investors who

wanted Schwartz’s “advice” and would be willing to pay for it (Pet.

App. 56). There was evidence that the judge received $3,000 in cash

from Criden for his services (Pet. App. 57 n.5).

6

Committee. I am a member of the State Committee. |

am a member of the City Committee. A Ward Leader.

1, uh, I have a ward — if you know what that means in

politics.

* * * * *

WALD: Is it fair to say that by doing business with

you, uh... my zoning problems become. . .

SCHWARTZ: Right.

CRIDEN: You, you don’t have any.

WALD: Okay. Now. There are what, 17 members,

as, as you say .. . and aiso what uh I read here...

SCHWARTZ: Right.

WALD: Uh, do we have a uh controlling vote...

SCHWARTZ: Yes.

WALD: ... problem here?

SCHWARTZ: No..

WALD: Uh.

SCHWARTZ: No.

WALD: Can you control...

WALD: ... those types of factions?

SCHWARTZ: Yes.

WALD: You can control them?...

SCHWARTZ: The proof was today. The proof was

the election of myself as president again.

WALD: Uh hmm.

SCHWARTZ. In other words, we got uh five or six

n[e]w members that came in. Uh, you tell me your birth

date. I'll give them to you for your birthday.

WALD: All right. You're controlling the council at

this point.

SCHWARTZ: Right.

WALD: As far as I’m concerned.

SCHWARTZ: Right.

CRIDEN: Right. And has been for...

SCHWARTZ: Right. Right.

WALD: Should we have anything that comes up to

a vote, that has to be done ona vote basis, the council is

with you.

SCHWARTZ: Yes.

WALD: You control them at this point.

SCHWARTZ: Yes. Yes. Yes.

CRIDEN: 100 percent.

SCHWARTZ: Yes.

Schwartz subsequently explained that his ability to con-

trol the city government extended beyond the council (Pet.

App. 60-61):

SCHWARTZ: There is a Board of Building Stand-

ards. There, there is built-in relief every stage of the

way. There’s a Zoning Board of Adjustment for

variances.

WALD: Okay. Can you control that?

SCHWARTZ: Yes...

* m : * *

WALD: Okay. Meaning that, if City Council has to

vote on it, we don’t have a problem at this point?

8

SCHWARTZ: Well, I’m going further. There are

other boards and agencies, uh, depending upon what

your client, how idiosyncrant [sic] he wants to be and

how eccentric he wants to be.

WALD: (Laughter) . . . They can become rather

eccentric.

SCHWARTZ: All right. All right. It may be neces-

sary to go to these various boards and commissions.

Now, they are part of the organization. They are part

and parcel and...

WALD: Appointed, appointed officials?

SCHWARTZ: Yes, they are appointed officials.

Uh, but uh, as I say, uh, I always do my homework.

And, uh, the mayor is a very strong mayor. We have a

strong mayor form of government. And all these peo-

ple are his appointees. My understanding with him is

that I go to him — period. I don’t even have to go to

one of the flunkies, one of the functionaries. I go to him

2

The discussion subsequently turned to Schwartz’s pay-

ment, as follows (Pet. App. 61-63):

WALD: * * * We've talked to Howard [Criden],

you know, the figures, the dollars we’re talking about

are in the right ballpark. We're. . .

SCHWARTZ: That’s not my prime concern. I’m

interested in the City of Philadelphia. I’m interested in

a good project. I’m interested in tax rateables. I want to

see Center City develop. Especially Center City. There

are a few parcels left. Well anything else that’s going to

3The Abscam operation disclosed no reason whatever to believe that

Mayor Green of Philadelphia was corrupt; the contrary is true. See page

11, infra.

9

add to the tax rateables of the city that’s going to create

jobs.

WALD: I am again quick to say that I’m not really

interested in the City of Philadelphia to be candid.

SCHWARTZ. Well I have to be. I have to be.

WALD: Perhaps, oh sure. . . (inaudible)

CRIDEN: Your primary concern is to see that if

your employer decides to move, you have a minimum

amount of problems.

WALD: Exactly ... Problems are to be handled

before they arise. Right. Should any minor problems

come up. Should any problems that are councilmatic

in scope. . .

SCHWARTZ: No problem.

WALD: Youcould take care of them. Those are the

type of things...

SCHWARTZ: Right.

WALD: That he asks I make an unequivocal, yes,

it’s been handled, it’s been taken care of and uh...

CRIDEN: You make that an unequivocable yes.

SCHWARTZ: It’s. . . I would say to you that it’s

much easier now than it is than it was four years ago.

x* * * %* *

SCHWARTZ: There are administrative escape

hatches for everything in the City of Philadelphia

under our various codes. There’s a way of doing it

—administrative way of doing it.

WALD: Okay, and that is the type of thing you can

handle for us.

10

SCHWARTZ: Oh yeah, right.

WALD: I can go back and say I met a gentleman.

We had a business deal uh. I’ve made a friend in

Philadelphia.

SCHWARTZ: Yes.

WALD: And things are taken care of...

SCHWARTZ: Right...

WALD: Okay, and the sums appropriate and we’re

in good shape. Okay.

Shortly thereafter, Wald handed Schwartz an envelope

containing $30,000 in cash, the payment previously agreed

upon with Criden. Schwartz accepted the envelope. He then

reaffirmed his commitment (Pet. App. 63):

WALD: The legislative problems we’ve taken care

of ?

CRIDEN: No problem.

WALD: Okay, that I can, that I, that I got assu-

rance on.

SCHWARTZ: Right.

CRIDEN: You have, you have no problem.

WALD: Okay, the other things can be done through

attorneys, but the legislative problems don't exist

anymore?

CRIDEN: That’s right.

SCHWARTZ: No. Do not.

WALD: Okay.

Criden remained behind after the meeting, and Wald

expressed an interest in meeting petitioner Jannotti. Criden

said he would approach Jannotti but said to Wald, “if the

11

answer is no, I’m going to tell you right off the bat, forget it”

(Pet. App. 63). Wald asked if there was anyone else with

whom he should try to do business, and Criden told him

there was not (id. at 64). Notably, notwithstanding

Schwartz’s boasting about his relationship to Mayor Green

of Philadelphia, Criden told the agents that the mayor was

“an All American boy” and that it would be “a critical

mistake” to approach him (id. at 58).

Criden brought petitioner Jannotti to the agents the fol-

lowing evening. This meeting was also videotaped. In

response to Wald’s allusions to the payment Jannotti was

about to receive, Jannotti, echoing Schwartz, emphasized

that he would assist the sheik’s project because it was “legit-

imate” and would aid Philadelphia. But when agent Hari-

dopolos said: “A lot of legitimate, ah, things get bogged

down, we don’t want to be bogged down” (Pet. App. 66),

Jannotti replied (ibid.): “No, I can’t see this being bogged

down.”

Shortly before Jannotti was handed cash, Wald said:

“Did he [Criden], was he very graphic with ya?” and

Jannotti replied “Yes.” Wald said: On exactly how... .”;

Jannotti nodded and said: “He was always up front, up

front” (Pet. App. 67). Immediately before Jannotti was

paid, the following exchange occurred (id. at 68-69):

WALD: Can I go back, ah ah, to my employer, the

Sheik and tell him that I dealt witha man, on Wednes-

day night tell him who he is, dealt with you, Thursday

night, explain who you were, what your position is and

say he and I conducted a cash business transaction and

he guaranteed me, we don’t have a problem in Phila-

delphia. We ah, ah City Councils on our side the man

has the influence with the Finance Committee, he has

influence. . .

12

JANNOTTI: You wouldn’t, you wouldn’t be able

to say we don’t have a problem. Problems might arise,

but problems ah, you might say problems can be

solved.

WALD: Ok, you can handle those problems we

presume.

JANNOTTI: I don’t see why not if its a legitimate, if

it’s a if it’s a legitimate if it’s a, if it’s a legitimate

enterprise, it’s a legitimate piece of business.

WALD: By making friends with you this evening, if

we have to go to City Council and say look, ya know,

give us a break, right, got us some legislation that this is

ok. That its in the right neighborhood, that the time.

CRIDEN: If you want a street for example let’s say

changed from a two way to a one way ok, maybe that

will help you.

WALD: Ok.

CRIDEN: Handle your traffic patiern.

JANNOTTI: We handle that everyday.

WALD: But I go back and I'll say we have this, and

Ill use that as an example that if we have a one way

street situation and it’s just hurting the front, of, of the

place we cannot move people in and out of the hotel

limousines to private vehicles and what have you, ah

the men I dealt with said they will help. I’m not saying

that you could walk in there and change this thing

tomorrow, but.

CRIDEN: Yet.

JANNOTTI: We'll go in there and battle, we'll go in

and battle.

WALD: You’re with us?

13

JANNOTTI: Certain!y, we'll go in and battle.

Wald then handed Jannotti an envelope containing

$10,000 in cash and asked if “that amount is sufficient.”

Jannotti took the envelope and said “We've discussed it”

(Pet. App. 69). The following exchange then occurred

(ibid.):

HARIDOPOLIS: You know how much it is?

CRIDEN: Tell him, you can tell him.

HARIDOPOLIS: How much is it?

CRIDEN: Tell him?

JANNOTTI: We won’t even discuss it.

WALD: Ok, but you did discuss it with Howard?

JANNOTTI: We won’t even discuss it.

HARIDOPOLIS: Is this arrangement please, pleas-

ing to you?

JANNOTTI: As I say, we won’t even discuss it.

WALD: Ok, well, we’ve done our business.

2. Petitioners were indicted with Johanson and Criden.

The prosecutions of the latter two were dropped after they

were convicted in the United States District Court for the

Eastern District of New York on charges growing out of

another aspect of the Abscam operation. Petitioners were

convicted by a jury, but the district court entered a judg-

ment of acquittal on all counts and dismissed the Hobbs Act

charge (Pet. App. 175-223). The district court’s decision

rested on four grounds: that the government had not dem-

onstrated a sufficient connection between petitioners’ activ-

ities and interstate commerce to support the Hobbs Act

convictions (id. at 175-179); that the evidence established

entrapment as a matter of law (id. at 183-218); that the

government’s conduct of the investigation was “so outrage-

ous as to amount to a violation of due process” (id. at 218;

14

see id. at 218-222); and that federal jurisdiction over the

offenses was “artificially created” by the government (id. at

223; see id. at 221-222). The district court remarked, how-

ever, that “[n]Jo-one who has viewed the videotape evidence

in this case could avoid feelings of distress and disgust at the

crass behavior the tapes reveal. The jury’s verdict represents

a natural human reaction to that evidence” (Pet. App. 223).

The court of appeais, hearing the case en banc, reversed

the district court’s order in a comprehensive opinion on

which we rely (Pet. App. 47-116).4 This Court denied certio-

rari. 457 U.S. 1106 (1982). After petitioners were sentenced,

they again appealed, and the court of appeals affirmed (Pet.

App. 1-39).

ARGUMENT

1. Petitioners contend (83-1891 Pet. 25-27; 83-1892 Pet.

21-23) that they were entrapped as a matter of law because

the evidence was insufficient to establish their predisposi-

tion to accept the illicit payments. This contention is

insubstantial.

We note first that the Abscam operation did not target

petitioners at random or for an arbitrary purpose; Criden,

petitioners’ co-conspirator, brought petitioners to the under-

cover agents’ attention. Criden had a demonstrated capac-

ity for delivering corrupt public officials; before he brought

petitioners to meet the agents he delivered Johanson, whose

corruption was manifest. In addition, the agents had reason

to believe that Criden did not make reckless claims about

who was susceptible to corruption; he cautioned the sheik’s

representatives in strong terms against approaching Mayor

Green and other members of the city council. As the court

‘Judges Aldisert and Weis dissented, essentially for the reasons stated

by the district court (Pet. App. 117-151).

15

of appeals noted (Pet. App. $2), “the statements of Criden

and Johanson indicating that [petitioners] would be ready

and willing to accept payments in return for political favors

and that they had done so in the past * * * support the

jury’s determination that [petitioners] were predisposed.”

As the court of appeals also noted, however (Pet. App.

92), petitioners’ own videotaped statements and actions

reveal ample evidence of their predisposition to accept

payments in return for political favors. The evidence per-

mitted the jury to find that petitioners attended a meeting at

which they knew, from Criden, that they would be given

bribes. Agent Wald made it clear at the outset of both

meetings that he was seeking “assurances” and political

favors. Petitioner Schwartz boasted at length in an effort to

impress the persons whom he believed were willing to make

a large payment to him; indeed, he promised to “give” Wald

the votes of city council members “for your birthday.”

Petitioner Jannotti agreed with Wald’s characterization of

their relationship as a “cash business transaction” that

would “guarantee[] . . . that we don’t have a problem in

Philadelphia” (Pet. App. 92-93).

At the end of the meetings, petitioners unflinchingly

accepted large payments — in cash — that could have had

no conceivable honest purpose. While the agreements

between petitioners and the agents were arrived at only after

a degree of circumlocution and oblique references to the

fact that cash was being exchanged for political influence —

a manner of discourse that is hardly surprising in view of the

blatantly illegal nature of the transaction — the agents did

not engage in anything remotely resembling the relentless,

badgering, high-pressure tactics that this Court has held to

constitute entrapment as a matter of law. See Sherman v.

United States, 356 U.S. 369, 373-374 (1958).

In fact, as the court of appeals noted, petitioners can

“point to no statements or gestures which indicate any

reluctance whatsoever to accept the proffered payments”

16

(Pet. App. 102). Petitioners did not attempt to report the

incident or turn the money over to the city government. The

jury viewed the meetings on videotape and had an oppor-

tunity to study “the actions, words, voice inflections and

mannerisms of the defendants and the F.B.1. agents” (id. at

103). The jury was then carefully instructed that “in order to

find predisposition based merely upon the fact that the

defendant did in fact commit the crime * * * it is very

important that you compare and analyze the * * * alacrity

with which the defendant joined the enterprise versus the

extent of the inducement which was offered to him” (ibid).

The jury’s conclusion that the source of petitioners’ willing-

ness to accept corrupt payments was their own predisposi-

tion, and not government pressure, was plainly reasonable

and does not merit review by this Court.

2. Petitioners also assert that even if they were predis-

posed, the government’s conduct of the investigation was so

outrageous that the Due Process Clause requires that their

convictions be reversed (83-1891 Pet. 18-22; 83-1892 Pet.

9-14). This argument has been advanced by other defend-

ants whose convictions resulted from similar aspects of the

Abscam investigation; it has been uniformly rejected by the

courts of appeals, and this Court has denied review. See,

e.g., United States v. Silvestri, 719 F.2d 577, 581 (2d Cir.

1983); United States v. Weisz, 718 F.2d 413, 440-441 (D.C.

Cir. 1983), cert. denied, No. 83-1036 (Feb. 21, 1984); United

States v. Kelly, 707 F.2d 1460(D.C. Cir.), cert. denied, No.

83-308 (Oct. 11, 1983); United States v. Williams, 705 F.2d

603, 619-622 (2d Cir.), cert. denied, No. 83-256 (Dec. 5,

1983); United States v. Myers, 692 F.2d 823, 836-843 (2d

Cir. 1982), cert. denied, 461 U.S. 961 (1983). Petitioners’

contention is equally insubstantial.

Petitioners advance essentially two arguments in support

of this contention. First, they insist that the government’s

role in designing and operating the criminal scheme was

a

17

excessive and that the government “created” crimes that

would otherwise not have occurred (see 83-1891 Pet. 18-19,

20-21; 83-1892 Pet. 10, 12). While it is true that the under-

cover agents conceived important aspects of the criminal

scheme, and that the crimes would not have occurred in this

form if the government had not been involved, that is

routinely true of undercover operations and has never been

thought sufficient to bar a prosecution. It is well settled that

the government does not violate the Due Process Clause

merely by providing a predisposed defendant with the

means and the opportunity to commit a crime. See Hamp-

ton v. United States, 425 U.S. 484 (1976); United States v.

Russell, 411 U.S. 423, 435-436 (1973); Sherman, 356 U.S. at

372; Sorrells v. United States, 287 U.S. 435, 441 (1932).

That is all the agents did here; by acting as representatives of

a wealthy person who was willing to pay bribes to obtain

political favors, the agents reproduced circumstances likely

to arise in reality and provided political figures who were

willing to be corrupted with an opportunity to reveal their

true colors.

The second argument petitioners advance in support of

their contention that the Due Process Clause bars their

convictions is, essentially, the same argument they ad-

vanced in support of their entrapment claim — that they

were not predisposed to commit the acts charged. See 83-

189] Pet. 19; 83-1892 Pet. 11. Specifically, petitioners insist

that Abscam was “designed to lure innocent persons into its

web” (83-1891 Pet. 19; see 83-1892 Pet. 10) and that

“extreme pressure” was brought to bear on petitioners to

accept the bribes (83-1891 Pet. 19; see 83-1892 Pet. 11). But

the question whether the government has pressured inno-

cent persons into committing crimes is properly compre-

hended by the entrapment defense. As we have explained,

there is abundant support for the jury’s conclusion that

petitioners were predisposed beyond a reasonable doubt to

18

accept illicit payments and that they did not succumb to

excessive government pressure.

In general, the record in this case shows that there was

nothing questionable or improper about any aspect of the

operation that led to petitioners’ convictions. The under-

cover agents acted in the way that would be expected of any

person seeking to exchange money for political favors.

They made contact only with persons whom they had rea-

son to believe would be susceptible to corruption, although

there was no constitutional requirement that they limit their

investigation in this way. As the court of appeals explained

(Pet. App. 88-90), the sums they offered cannot be regarded

as excessive. Petitioners object that Criden was paid on a

contingent fee basis and that his actions were not supervised

(83-1891 Pet. 19; 83-1892 Pet. 11); but they suggest no reason

to doubt that a middleman like Criden — to whom, of

course, the agents did not reveal their true identity — would

receive a contingent fee from persons actually interested in

corrupting politicians. Nor do petitioners explain how the

agents could have supervised Criden or paid him on another

basis without compromising the undercover operation.

Similarly, petitioner Jannotti objects that the govern-

ment did not obtain a sufficiently explicit statement from

him to the effect that he understood the corrupt nature of

the agreement (83-1891 Pet. 21). But as the Second Circuit

explained in an Abscam case that involved members of

Congress (Myers, 692 F.2d at 843-844):

Undercover agents offering bribes to Congressmen are

entitled to simulate the guarded conversation that

would be expected of those proposing an unlawful

venture. * * * They need not say, “Congressman, |

have here a cash bribe to be exchanged for your cor-

rupt promise to be influenced in your official action.”

19

Indeed, in another phase of the Abscam operation, Mayor

Errichetti criticized another of the sheik’s representatives

for being insufficiently subtle in offering a bribe to an

official. United States v. Myers, 527 F. Supp. 1206, 1227

n.17(E.D.N.Y. 1981), aff'd in part and rev’d and remanded

in part, 692 F.2d 823 (2d Cir. 1982), cert. denied, 461 U.S.

961 (1983). Here, the jury, after viewing the videotape,

evidently concluded that petitioners’ insistence that the

hotel project be legitimate reflected only their desire not to

commit themselves to public support of an embarrassing

project, and that Jannotti’s too frequent protestations that

he was seeking only to aid Philadelphia were nothing more

than an effort to avoid making a directly incriminating

statement and were belied by his ready acceptance of a cash

payment he obviously expected.

Finally, petitioners contend that they were subject to

unfair pressure because the agents appealed to their “civic

duty” and suggested that the hotel would not be built if they

did not accept the payments (83-1891 Pet. 19; 83-1892 Pet.

11). As the court of appeals demonstrated, no such sugges-

tion was ever made to Schwartz, and the agents’ remarks to

Jannotti, taken as a whole, not only did not place unfair

pressure on him but gave the clear impression that the hotel

would be built in Philadelphia no matter how Jannotti

responded (Pet. App. 96-99). In any event, even if the agents

had made the project contingent on petitioners’ acceptance

of the payments, their actions would not have created temp-

tations and pressures exceeding those with which municipal

officials are sometimes faced; and such officials scarcely do

their “civic duty” when they accept a large cash payment

instead of reporting such an incident to the authorities.

This Court made it clear in Hampton v. United States,

supra, that government involvement in a criminal scheme

would bar the conviction of a predisposed defendant only in

the most extraordinary case, if at all. See 425 U.S. at 495 n.7

(Powell, J., concurring). Since Hampton was decided, there

20

has been only one occasion on which a court of appeals has

held that a prosecution was precluded on this ground, and

that decision was reached by the Third Circuit itself. United

States v. Twigg, 588 F.2d 373 (1978). In this case, the Third

Circuit, en banc, convincingly distinguished Twigg. See

Pet. App. 108-110. Further review of the due process claim

by this Court is plainly unwarranted.

3. Petitioners also contend (83-1891 Pet. 23-25; 83-1892

Pet. 14-20) that their convictions should be reversed

because of an erroneous instruction on entrapment. The

instruction was as follows (Pet. App. 18):

If you find from the evidence that there was induce-

ment, that the crime was induced by the Government

agents * * * you would therefore acquit the defend-

ants unless the evidence as a whole satisfies you beyond

a reasonable doubt that they were predisposed.

In short, the burden is upon the Government in a

case of this kind to prove beyond a reasonable doubt

that there was no entrapment. If the defendants were

induced to commit the crime, then they were entrapped

and should be acquitted unless the Government satis-

fies you beyond a reasonable doubt that they were

predisposed to commit the crime.

The court of appeals ruled that while this instruction cor-

rectly placed on the goverment the burden of proving pre-

disposition beyond a reasonable doubt, it was erroneous in

two respects: it separated the issues of inducement and

predisposition, and it did not clearly state that the jury was

to find inducement unless the government proved lack of

inducement beyond a reasonable doubt (Pet. App. 20-21).

See United States v. Watson, 489 F.2d 504, 510, 511 (3d

Cir. 1973).

ih ine ee 9 ti .

21

Even though it ruled that tne instruction was erroneous,

the court of appeals unanimously declined to reverse peti-

tioners’ convictions, for the following reasons (Pet. App.

21-22):

We are not confronted here with an error affecting

the defendants’ constitutional rights. The entrapment

defense “is not of a constitutional dimension,” United

States v. Russell, 411 U.S. 423, 433 (1973), and the

erroneous instruction affected no other possible con-

stitutional right. We are therefore not required in this

appeal to find beyond a reasonable doubt that the error

was harmless. Chapman v. California, 386 U.S. 18

(1967). Instead, we must use the “highly probable”

standard of appellate review discussed [in] Govern-

ment of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d

Cir. 1976). Applying this standard to the circumstances

of this case, we hold that the erroneous instruction is

not reversible. * * * As noted above, the district court

charged the jury that it was obligated to acquit the

defendants if the government failed to disprove entrap-

ment beyond a reasonable doubt. This part of the

charge was correct.

The charge was erroneous insofar as the district

court improperly required the defendants to show

some evidence of inducement, either by introducing

their own proof or by reference to the government’s

evidence. This evidence, however, was patent: the

government had created an elaborate fiction to con-

vince the defendants that an Arab sheik was prepared

to pay bribes to local officials in exchange for favors.

The district court correctly placed on the govern-

ment the burden of proving predisposition beyond a

reasonable doubt. We find that the government’s evi-

dence established overwhelmingly that the defendants

enthusiastically accepted bribes. There simply is no

22

credible evidence that the defendants were reluctant to

take the money. To the contrary, the evidence shows

the defendants, each of them an elected public official,

boasting of their power and their corruption. In view of

this overwhelming proof, we conclude without hesita-

tion that the defendants were not prejudiced by the

district court’s error.

While we do not necessarily agree with the court of

appeals that the instruction was erroneous (see United

States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952) (L.

Hand, J.), rev’d on other grounds, 356 U.S. 369 (1958)), the

court’s conclusion that any error was harmless plainly does

not merit further review. The instruction did not explicitly

place on petitioners the burden of proving any element of

the entrapment defense; on the contrary, it explicitly

required the government to disprove entrapment beyond a

reasonable doubt. Petitioners themselves repeatedly empha-

size, in connection with their other contentions, “(t]he

extraordinary degree of government inducement in this

case” (83-1891 Pet. 25; see id. at 13, 18-22; 83-1892 Pet. 9-14,

21, 23); it is most unlikely that the jury’s conclusion was

affected by the fact that the instruction did not unequivo-

cally place on the government the burden of proof on the

inducement issue.

In any event, the court of appeals’ conclusion that the

alleged error was harmless is based on the particular facts of

this case. Contrary to petitioners, there is no conflict among

the circuits on the harmless error standard that should be

applied; indeed, that standard is derived directly from this

Court’s decision in United States v. Kotteakos, 328 U.S.

750, 764-765 (1946). See Government of the Virgin Islands

v. Toto, 529 F.2d 278, 283-284 (3d Cir. 1976).° But even if

SMany of the cases cited by petitioner Schwartz (83-1892 Pet. 17-18)

deal not with entrapment but with other defenses or with the govern-

ment’s proof of an element of the offense. Moreover, in each of these

cases the instruction utterly failed to mention the government's burden

23

there were a conflict, it seems clear beyond a reasonable

doubt that any error in connection with the instruction on

inducement would not have affected the jury’s verdict in the

circumstances of this case.

4. The Hobbs Act, 18 U.S.C. 1951(a), provides that

“(whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article * * * in com-

merce, by * * * extortion or attempts or conspires so to do”

is guilty of acrime. Petitioners were convicted of conspiracy

to violate the Hobbs Act. They contend (83-1891 Pet. 10-16;

of proof beyond a reasonable doubt in connection with the defense (or

mentioned it only in a highly confusing fashion). See Davis v. United

States, 160 U.S. 469 (1895) (sanity; burden of proof erroneously placed

on defendant); United States v. Read, 658 F.2d 1225, 1236-1239 (7th

Cir. 1981) (membership in conspiracy); Berrier v. Egeler, 583 F.2d 515,

517-518 (6th Cir.), cert. denied, 439 U.S. 955 (1978) (self-defense);

United States v. Alston, 551 F.2d 315 (D.C. Cir. 1976) (alibi); United

States v. Corrigan, 548 F.2d 879 (10th Cir. 1977) (self-defense). By

contrast, the district court here clearly instructed the jury that the

government had to prove entrapment beyond a reasonable doubt and

that it had to prove predisposition beyond a reasonable doubt.

Contrary to petitioner Schwartz (83-1892 Pet. 18), nothing in United

States v. Benavidez, 558 F.2d 308 (Sth Cir. 1977), suggests that even a

complete failure to give an entrapment instruction is constitutional

error. And none of the cases cited by petitioners (83-1891 Pet. 24-25

n.16; 83-1892 Pet. 19) establishes a rule of automatic reversal for an

erroneous instruction on entrapment. Indeed, most of the cases cited by

petitioner in which the court held an entrapment instruction to be

erroneous involved a failure by the court to instruct clearly that the

government had the burden of proving predisposition beyond a reason-

able doubt. See United States v. Dearmore, 672 F.2d 738, 740-741 (9th

Cir. 1982); United States v. Wolffs, 594 F.2d 77, 79-84 (Sth Cir. 1979);

United States v. Ambrose, 483 F.2d 742, 753 (6th Cir. 1973); Notaro v.

United States, 363 F.2d 169 (9th Cir. 1966). We note that in Ambrose

the court appears to have approved an instruction like that given here

(483 F.2d at 753 n.7). In United States v. Tate, 554 F.2d 1341, 1343-

1345 (Sth Cir. 1977), the court explicitly applied a harmless error

standard.

24

83-1892 Pet. 24-28) that because the hotel project in connec-

tion with which they accepted the illicit payments was ficti-

tious, their acts could not have affected interstate commerce

and therefore did not constitute a conspiracy to violate the

Hobbs Act.

Petitioners rely heavily (see 83-1891 Pet. 11; 83-1892 Pet.

24-25) on United States v. Staszcuk, 517 F.2d 53 (7th Cir.)

(en banc) (Stevens, J.), cert. denied, 423 U.S. 837 (1975).

Petitioners are correct that Staszcuk has been generally

followed by other circuits, but the holding and reasoning of

Staszcuk are decisively contrary to petitioners’ contention.

In Staszcuk, the defendant, a local official, received $3,000

in exchange for his support of a zoning change that would

have enabled an animal hospital to be built, but the hospital

was never built. “Therefore, there [was] no evidence that

either the zoning change or the payment had any effect

whatsover, either favorable or unfavorable, on interstate

commerce.” 517 F.2d at 55. The court nonetheless upheld

the defendant’s conviction for a substantive violation of the

Hobbs Act. The court stated (id. at 59-60; footnotes

omitted):

We are * * * nersuaded that the cases which uniformly

hold that a threatened effect on interstate commerce is

sufficient to bring the statute into play notwithstand-

ing the absence of any actual effect, correctly interpret

the congressional purpose. * * * [T]he commerce ele-

ment of a Hobbs Act violation * * * may be satisfied

even if the * * * extortion had no actual effect on

commerce.

Under this reasoning, petitioners’ convictions must also be

upheld.

Petitioners emphasize the statement in Staszcuk that

Hobbs Act “jurisdiction in [a] particular case is satisfied by

showing a realistic probability that an extortionate transac-

tion will have some effect on interstate commerce” (517

ns BNE ek anil

25

F.2d at 60). But by this the court could only have meant a

realistic probability that the contemplated trans: ction, if it

had come to pass, would have affected commerce. The

court could not have meant that the jury had to assess the

likelihood that the hospital would actually be built; the

court noted that the record did not explain why the hospital

was never built, and it is implausible to suppose that the

result in Staszcuk would have been different if the evidence

showed that the builder’s desire to construct the hospital

was not a serious intention but only a velleity, or that, as a

pract'cal matter, he was never in fact ina position to build

the hospital.

Moreover, unlike the defendant in Staszcuk, petitioners

were convicted of conspiracy, not of a substantive violation

of the Hobbs Act. Petitioners appear to recognize, as they

must, that they could be prosecuted for conspiracy to vio-

late the Hobbs Act even if their actions had no actual effect

on interstate commerce; “the illegality of [a conspiratorial]

agreement does not depend on the achievement of its ends.”

Pet. App. 73 (citing cases). The distinction petitioners

apparently seek to draw is between a conspiracy that didnot

affect commerce and one that could not possibly have

affected commerce. But as the court of appeals noted (id. at

75-76), this is an effort to import a defense of impossibility

into the law of conspiracy — a defense that has been con-

sistently rejected. See, e.g., United States v. Rindone, 631

F.2d 491, 492-494 (7th Cir. 1980) (upholding Hobbs Act

_ conviction of municipal employee who extorted a payment

even though payment was made from funds supplied by

FBI and therefore could not have affected interstate com-

merce); United States v. Waldron, 590 F.2d 33 (1st Cir.),

cert. denied, 441 U.S. 934 (1979) (upholding conviction for

conspiracy to transport stolen goods worth more than

$5,000 even though, unknown to conspirators, goods were

actually worth less than $5,000); United States v. Rose, 590

26

F.2d 232, 235-236 (7th Cir. 1978), cert. denied, 442 U.S. 929

(1979) (upholding convictions for conspiracy to transport

stolen goods even though the persons engaged by conspira-

tors to commit the thefts were FBI agents who never

intended to do so); United States v. Thompson, 493 F.2d

305, 310 (9th Cir.), cert. denied, 419 U.S. 834 (1974)

(upholding conviction for conspiracy to smuggle marijuana

even though substance not shown to be marijuana). Peti-

tioners cite no authority to the contrary.

Finally, the Hobbs Act “speaks in broad language,

manifesting a purpose to use all the constitutional power

Congress has to punish interference with interstate com-

merce by extortion, robbery or physical violence.” Stirone

v. United States, 361 U.S. 212, 215 (1960); see Staszcuk, 517

F.2d at 58. As petitioners appear to recognize, therefore, it

necessarily follows from their contention that Congress

would lack the power under the Commerce Clause to pun-

ish the conduct at issue here. This proposition is plainly

incorrect. See Perez v. United States, 402 U.S. 146, 154-155

(1971). As the court of appeals explained, there is no reason

to distinguish the conduct shown in this record from other

schemes that Congress undoubtedly could reach and has

included within the proscriptions of the Hobbs Act (Pet.

App. 78-79):

[Petitioners] agree that had the government moved

from the verbal ruse that its agents were in the hotel

construction business to the more concrete action of

embarking on that venture * * * the jurisdictional

requirement would have been met. However, we see no

reason to interpret Congress’ legislative power as

dependent upon whether the F.B.I. agents actually

contract for a hotel site * * *. To require that the

government take that additional step before it can

constitutionally reach a proved conspiracy which

would have affected interstate commerce had the facts

27

been as represented misdirects the focus of the conspi-

racy cases. * * *

In this case the jury found that [petitioners] con-

spired to violate the Hobbs Act by their acceptance of

payments in return for their promises to expedite com-

pletion of an elaborate hotel project which, had it been

constructed, would have entailed at least a $30 million

expenditure. Had the project actually been planned as

represented, [petitioners’ ] actions would have violated

the Hobbs Act even if unforeseen difficulties, such as

the overthrow of the “sheik,” prevented any further

action on the project. The federal interest in protecting

interstate commerce is no less under the factual situa-

tion presented in this case. The threat posed by [peti-

tioners’ ] actions is just as great.

Moreover, there can be no dispute that the Commerce

Clause gives Congress the power not just to punish actual

interferences with interstate commerce but to use the crimi-

nal law to attempt to deter those who would interfere with

commerce. Congress could reasonably conclude that impos-

ing criminal liability on those who engage in the conduct

shown by this record would serve a powerful deterrent

purpose and thereby protect interstate commerce from

extortionate official behavior.

5. Finally, petitioners contend (83-1891 Pet. 16-17; 83-

1892 Pet. 28-30) that their Hobbs Act convictions should be

reversed because they did not “induce” or “demand” the

illicit payments but instead were merely “passive” recip-

ients. As the court of appeals demonstrated, quite apart

from the merits of petitioners’ interpretation of the Hobbs

Act, this characterization of petitioners’ role is manifestly

incorrect (Pet. App. 82; citations omitted):

Even if the Hobbs Act were to be construed as requir-

ing some inducement on the part of the public official,

[petitioners’ ] conduct in this case hardly constituted

28

merely passive acceptance of the payments. The evi-

dence does not fit [petitioners’ ] posited il! «strai‘on of

an unexpected bribe mailed to a public official’s office.

On the contrary, rather than remaining in their own

offices, the evidence shows that each [petitioner]

arrived at the * * * [agents’ ] suite after having been

briefed about the purported hotel project, the fact that

there would be a payment made, and the specific

amount of the payment which would be made to each.

* * * Assoon as each defendant was in the * * * suite,

Wald, the F.B.I. agent, promptly repeated the need for

* * * assurances. Thereafter, Schwartz launched into

a discourse on his own importance and power and his

ability to control City Council and the relevant munic-

ipal officals and departments, and Jannotti also con-

firmed his own power. Further, each gave assurances

that there would be no obstacles or that the obstacles, if

any, would be manageable.

After repeatedly being told that the sheik’s representatives

were seeking assurances, and responding with boasts about

their power and expressions of their intention to cooperate,

petitioners were handed envelopes containing, respectively,

$30,000 and $10,000 in cash, and they accepted without

hesitation. In light of this videotaped record, it is wholly

implausible to suggest that petitioners were passive recip-

ients of “gifts” they did nothing to induce.

Petitioners identify no conflict among the circuits on the

question whether the Hobbs Act requires the government to

show that a public official somehow “induced” the pay-

ment. Petitioners cite cases (83-1891 Pet. 16 & n.10; 83-1892

Pet. 29 & n.25) in which government officials were con-

victed under the Hobbs Act after having been charged with

inducing payments. But petitioners do not cite any case in

which a conviction under the Hobbs Act was set aside

29

because the indictment failed to charge (or the jury instruc-

tions failed to require the government tc show) that defend-

ants who were public officials induced the illicit payment.°

*In United States v. O’Grady, No. 82-1344 (July 12, 1984) (en banc),

the Second Circuit reversed a Hobbs Act conviction, stating that “there

must * * * be proof that the public official did something, under color

of his public office, to cause the giving of benefits” (slip op. 7655). The

Second Circuit also said (id. at 7659) that in the present case, the Third

Circuit ruled that inducement was not necessary. (In fact, the court of

appeals in the present case noted only that its prior cases contained the

“suggestion that there need be no inducement” (Pet. App. 81).) But the

Second Circuit distinguished the present case on the ground that the

evidence here “establish[ed] conduct from which inducement can be

readily inferred” (slip op. 7660).

The trial court in O’Grady specifically instructed the jury that the

government “need not show that the defendant in words or otherwise,

induced, requested, demanded, or solicited the benefits” (slip op. 7653).

The trial court also instructed the jury that in order to convict it need

find only that benefits were conferred because the defendant was a

public official and that the defendant knew that the benefits were

conferred for this reason (id. at 7652-7653). It was these instructions

that the Second Circuit found to be incorrect. No comparable instruc-

tions were given in this case. See Pet. App. 238.

In fact, the district court told the jury that they should convict only if

they found a conspiracy “to receive payments in the nature of bribes,

that is to say extortion, from the hotel enterprise” (id. at 268) and that a

particular defendant could be convicted of the Hobbs Act conspiracy

only if he knew “that it was an object of the conspiracy that their intent

was to so solicit or receive bribes which would amount to extortion and

impede interstate commerce” (id. at 271). We note that petitioners do

not now challenge the jury instruction and indeed appear to endorse the

interpretation of the Hobbs Act put forward by the district court in its

opinions (see 83-1891 Pet. 26; 83-1892 Pet. 29).

30

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

SEPTEMBER 1984

DOJ-1984-09