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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 832

## Text

= FILED
83-2072 JUN 4 $094
as E ? . STEVAS,
Hi
l
IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

DEAN J. LISINSKI, Petitioner

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT
OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Thomas D. Decker

Thomas D. Decker &
Associates, Ltd.

135 South LaSalle St.

Suite 853

Chicago, IL 60603

(312)263-4180

Counsel for Petitioner

QUESTIONS PRESENTED
FOR REVIEW

1. Whether the Hobbs Act, 18
U.S.C. § 1951, is violated when fear of
economic harm motivates payments of
money, but the recipient has not threat-
ened the payor, directly or indirectly.

2. May the Petitioner's engagement
as an agent of the "victim" in a bribery
scheme, unaccompanied by extortionate
conduct toward the victim, constitute a

violation of the Hobbs Act?

TABLE OF CONTENTS

Table of Authorities. ......
Gpinion Below . . «++ ++ se «
WMRABGSGCIOR. «6 2 ts bt tw et et
Statute Involved. ....... -»
Statement of the Case ......
Reasons For Granting The Writ...

I. Certiorari Should Be
Granted Because The
Opinion Below Conflicts
With This Court's Con-
struction Of The Hobbs
i. = * & 6 & © &@ © «© e

II. Certiorari Should Be
Granted To Resolve The
Conflict Created By This
Case With Lower Court's
Interpretations Of The
Hobbs Act Requiring
ee ee ee

Livingston v. Lisinski. .

Lisinski v. Other
SS ee

III. Certiorari Should Be
Granted Because The
Hobbs Act's Legisla-
tive History Indicates
That The Defendant Must
Threaten The Victim...

ii

13

14

22

28

IV. Certiorari Should Be
Granted Because The
Statutory Interpreta-
tion By The Seventh
Circuit Violates This
Court's Delineation
Between Federal and
State Criminal Juris-
Gaweeee Ga-« 2/6 -s © -« 31

V. Certiorari Should Be
Granted Because The
Hobbs Act Does Not
Criminalize A Bribery
Scheme In Which The
Defendant Acted As An
Agent Of The Payor. ... 36

Cemeeeeaee., « 6 64: «4-64 8 ew *% Se 6 40

Appendix

iii

TABLE OF AUTHORITIES

CASES

Callanan v. United States,
223 F.2d 171 (8th Cir.),
cert. denied, 350 U.S. 862 (1955).

H.K. borter Co. v. NLRB,
397 U.S. 99 (1970) . 2. ~~ 2 ws

Palko v. Connecticut,
ain Lee Sens «6 © & 6 64s

People v. Dioguardi,
8 N.Y.2d 260, 203 N.Y.S.2d
870, 168 N.E.2d 683 (1960) ....

People v. Weinseimer,

Il7 App. Div. 603, 102 N.y.S. 579,
aff'd, 190 N.Y. 537, 83 N.E.

Bee eeeree- 6.5 #68 6 8 0 8 8s

Rewis v. United States,
401 U.S. 808 (1971). . . 2. 2. 2s .

United States v. Bass,
404 U.S. 366 (1971). . . 2...

United States v. Billups,

692 F.2d 320 (4th Cir. 1982), cert.
denied, U.S.
Sue Bs Ges OC (1983). Sy ee ee sa ee

United States v. Brecht,
540 F.2d 45 (2d Cir. 1976),
cert. denied, 429 U.S. 1123 (1977)

United States v. Cerilli,

603 F.2d 415 (3rd Cir. 1979), cert.

denied, 444 U.S. 1043 (1980)... .

iv

Page

21,
25,

23

19

20,

29

30

32,

33

21

34

12

24,
30

25

34

United States v. Crowle
504 F.2d 992 (7th Cir. +574) ;. *«

United States v. Duhon,
565 F.2d 345 (5th Cir.),
cert. denied, 435 U.S. 952 (1978).

United States v. Enmons,

SiG UoB. 396 CA97S). « 2 2 2 2 et

United States v. Gerald,
624 F.2q 1291 (5th Cir. 1980),
cert. denied, 450 U.S. 920 (1981).

United States v. Green,
350 U.S. 415 (1956). .......

United States v. Hathaway,
534 F.2d 386 (ist Cir.),
cert. denied, 429 U.S. 819 (1976).

United States v. Hyde,
448 F.2d 815 (5th Cir. 1971),
cert. denied, 404 U.S. 1058 (1972)

United States v. Kubacki,
237 F. Supp. 638 (E.D. Pa. 1965) .

United States v. Livingston,
8 @ > 8¢\ >) eae

United States v. Nardello,
ie = 2 Be.) ree

United States v. Porcaro,
648 F.2d 753 (lst Cir. 1981)...

United States v. Pranno,
385 F.2d 387 (7th Cir. 1967),
cert. denied, 390 U.S. 944 (1968).

passim

26,
36, 37

passim

25

12

19

25

36, 37

passim

19

12

36, 37

United States v. Quinn,

514 F.2d 1250 (5th Cir. 1975),
cert. denied, 424 U.S. 955 (1976).

United States v. Rabbitt,
583 F.2d 1014 (8th Cir. 1978),
cert. denied, 439 U.S. 1116 (1979)

United States v. Rastelli,
551 F.2d 902 (2d Cir.),
cert. denied, 434 U.S. 831 (1977).

United States v. Russo,

708 F.2d 209 (6th Cir.),

cert. denied, U.S. ___,

104 S.Ct. 487 (1983) .......

United States v. Sander,
615 F.2qa 215 (5th Cir.),
cert. denied, 449 U.S. 835 (1980).

United States v. Warledo,
Sa? Became tan ERUCH Cae. ADT7). »

United States v. Zappola,
OF? Fu.am 208 (am CAEtF 2 6 6 8 et

Williams v. United States,

G58 UsB. 279 (iFGEI. 2 2 eo te we ew
STATUTES

AO U.8.€. 9 O7e8 ders een tt GT ON AE

a word which in one set of facts may
stand for oppression or enormity is of

like effect in every other." Palko v.

Connecticut, 302 U.S. 319, 323 (1937).

When, then, does preying upon another's
fear become extortionate?
The answer lies in coercion. See

United States v. Hathaway, 534 F.2d 386,

395 (lst Cir.), cert. denied, 429 U.S.

819 (1976). At common law, the holder of

a public office was guilty of extortion
when, by virtue of his post, he coerced
payment for what he was duty bound to do.

United States v. Nardello, 393 U.S. 286,

289 (1969). Logically some states extend-
ed criminal extortion to other forms of
coercion. Id. In enacting the Hobbs
act, Congress took its definition of
extortion from the New York criminal law:
""the obtaining of property from anoth-

er . . . with his consent, induced by a
wrongful use of force or fear, or under

=~} 9=

ieee

color of official right.’ N.Y. Penal Law

§ 850 (1909). . .." See Enmons, 410

U.S. at 406 n.16 and legislative history
recounted therein.

The coercive use of fear demands a
threat, as inseparably as clouds and
rain. "The essence of the crime is
obtaining property by a wrongful use of
fear, induced by a threat to do an unlaw-

ful injury." People v. Dioguardi, 8

N.Y.2d 260, 268, 203 N.Y¥.S.2d 870, 877,
168 N.E.2d 683, 688 (1960) (construing
Section 850 on which the Hobbs Act defini-
tion of extortion is based). The threat

may be express. United States v. Sander,

615 F.2d 215, 219 (5th Cir. 1980) (quoted
to the contrary by the Seventh Circuit in

Lisinski, App. 6-7), cert. denied, 449

U.S. 835 (1980). It may be subtle.

Sander, 615 F.2d at 218; see also United

States v. Quinn, 514 F.2d 1250, 1266-67

(Sth Cir. 1975), cert. denied, 424 U.S.

@20-

955 (1976)(defendant “selling his influ-
ence under the threat of picketing which
would destroy his victim's business.")
And the threat may be implicit in the
defendant's power to bring to pass what
the victim fears. Crowley, 504 F.2d at
998 (defendant policeman's implied threat
to withhold needed police services);

Callanan v. United States, 223 F.2d 17l,

175 (8th Cir.), cert. denied, 350 U.S.

862 (1955)(defendant labor leaders created
reasonable fear even if they were not
responsible for past difficulties victim
feared would recur.) The power to harm
the victim need not be real, as long as
the victim reasonably fears that the

defendant can do so. United States v.

Rastelli, 551 F.2d 902 905 (2d Cir.),

cert. denied, 434 U.S. 831 (1977); see

also United States v. Billups, 692 F.2d

320, 331 (4th Cir. 1982), cert. denied,

U.S. , 104 S. Ct. 84 (1983)

a

(payment "the direct result of a perceived,
reasonable fear on [victim's] part that
noncompliance with the deal already struck
could lead to [defendant's] economic
retaliation.")

But where extortion convictions have
occurred without a threat, however subtle,
and without the defendants' having the
power or even the reasonably perceived
power from which they might imply a
threat, the Courts of Appeals have

reversed. Livingston, 665 F.2d at 1005.

See also United States v. Rabbitt, 583

F.2d 1014, 1027 (8th Cir. 1978), cert.
denied, 439 U.S. 1116 (1979).

They consistently reversed, that is,
until the Seventh Circuit affirmed the
petitioner's conviction by holding that no
threat at all, not even an implied or
subtle one, was required for extortion.

LISINSKI v. OTHER PRECEDENT

In the present case, the Seventh

«9%

(ROPING TSAR EAE ROOT TEN RN OOPS

—

Circuit asserted that "[c]Jase law amply
refutes Lisinski's arguments that the
wrongful use of fear requires a threat."
App. 6. In fact, the court's citations
and quotations only evidence the danger
that broad statements of principle some-
times outdistance the facts that gave

them birth. H.K. Porter Co. v. NLRB, 397

U.S. 99, 110 (1970)(Douglas, J., dis-
senting). In holding that extortion can
be proved where there was no threat or
pressure at all, the Seventh Circuit
eliminated coercion itself as the grava-
men of the crime. In that, it stands
alone among the circuits.

To refute the need for a threat, the

Lisinski panel first cited an earlier

Seventh Circuit case, Crowley, 504 F.2d
at 996. In Crowley, however, the defen-
dants were police officers who had the
power to bring about the dearth of police
services the victim feared. They had

atte

been charged with extortion under color
of official right. Id. at 994. As to
its alternative holding on the charge of
wrongfully using fear, Crowley stated
that there had been an implied threat.
Id. at 998.

Quoting Crowley, the Lisinski panel

included its parapharse of the Eighth

Circuit's decision in Callanan v. United

States, 223 F.2d 171, 175 (8th Cir.),

cert. denied, 350 U.S. 862 (1955). But

the labor leader defendants in Callanan

had argued only that their victim's fear
pre-existed their extortionate demand.
There was no evidence of express threats,
but none was needed to make the victim's
fear reasonable in the context of past
labor problems. The Eighth Circuit saw
that implicit threats could be just as
effective: "It appears to us that the
offense of extortion under the Hobbs Act

has been committed if the defendants have

=24-

illegally created fear in their victim,

which fear has induced the victim to part
with his money or property." Id. (emphasis
added.) The New York Court of Appeals

cited Callanan v. United States in con-

struing extortion to require a threat.

People v. Dioguardi, 168 N.E.2d at 689.

Callanan does not at the same time support

the Seventh Circuit's refutation of the
need for a threat.

Next Lisinski cites United States v.

Gerald, 624 F.2d 1291, 1299 (5th Cir.

1980), cert. denied, 450 U.S. 920 (1981).

In an abbreviated Hobbs Act discussion,
Gerald does not consider whether threats

are required for extortion. Like

Callanan, it states that the victim's

fear may have sprung from some other

source than the defendant, and in support

it cites United States v. Hyde, 448 F.2d

815, 833 (5th Cir. 1971), cert. denied,

404 U.S. 1058 (1972), a case that is rife

-25-

with threats both express and implicit,

the latter dependent on the defendants'
power to use the Alabama Attorney General's
office to operate a massive extortionate
scheme. Id. at 834.

Lisinski's next choice of a Fifth

Circuit case also does not support the
Seventh Circuit's reading threats out of
the law of extortion. It quoted from

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

218 (5th Cir.), cert. denied, 449 U.S.

835 (1980), taking a long passage in
which the Fifth Circuit noted that the
defendant denied making threats. App. 7.
But on the next page, the Fifth Circuit
wrote that the “evidence at trial showed
that [defendant] did threaten [the victim]
with economic loss if he failed to supply
the promised bribe money." Sander, 615
F.2d at 219. Sander is authority for the
fact that threats may be subtle, id. at
218, but not that extortion is found

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was allegedly made for.
What happened in Count l, as I under-
stand the evidence, is that the license
was, I believe it was reinstated. I
checked my notes on that. I think he came
-- that is, Patras came to Mr. Lisinski
and said, "I need some help,” and Mr.
Lisinski agreed that he would do things
and he did those things or the liquor
license, I believe, was reinstated.
Actually, I believe, Mr. Lisinski in this
instance filled out part of it. Is that
Exhibit 4? Yes.
MR. SYFERT: Yes, it is, your Honor.
THE COURT: And took it down, or was
there at the time it was submitted. Then
it was some several days -- actually six
days -- six or seven days thereafter that p- 43
Mr. Lisinski said that he had to take care
of somebody and requested $1,000. That

was the beginning of the whole series

App. 17

of transactions, which I have difficulty
in finding constituted extortion.

Although the government argues that
the extortion was out of fear that some-
thing was going to happen in the future, I
don't see any such conversationg [sic]
about that. Maybe that was in Mr.

Patras' mind and maybe it wasn't. But it
was a whole year almost -- let's see -- it
was April, six months later that the
matter came to a head again, and that is
when Mr. Lisinski said he had to get
$1,000 on April 3, 1981 to take care of
the, I believe, possibility that the
liquor license was going to be -- well, I
guess the liquor license had been revoked
at that time.

But to counter Mr. Decker's con-
tention that Mr. Patras was the motivating
individual or force in this transaction,

it seems to me that the fact that Mr.

App. 18

Lisinski came to Mr. Patras after the
fact, in October of 1980, and said he
needed $1,000 to take care of somebody
sets the stage for what happened not only
at that time but for what happened in the
future.

After ali, Mr. Patras was given to
understand that these things couldn't be
done without paying somebody. It stands
to reason that he wasn't going to pay any-
body if he didn't have to. Granted he
went around paying people for things that
he had to do in order to accomplish his
means in other instances besides this. He
was a person that was perfectly willing to
do that but, on the other hand, he wasn't
going to do it if he didn't have to. It
was Mr. Lisinski who brought the question
up in the first instance.

MR. DECKER: Well, Mr. Patras said he

expected to pay. That was his state of

App. 19

p. 44

a

mind, his intent.

THE COURT: Expected to pay on the
first instance?

MR. DECKER: He expected to pay when
he went to Mr. Lisinski in May of 1980.

He did not limit his expectation in terms
of time. Presumably it extended through-
out the pericd of his problem.

THE COURT: Well, it seems to me that
it is fairly clear that he wouldn't have
paid, he wouldn't have taken the money out
of the till or the restaurant, partic-
ularly when the restaurant was in finan-
cial difficulties, if he didn't feel that
he had to in order to accomplish what he
had to do.

MR. DECKER: I think that is right
but that would be true of any briberty,
[sic] wouldn't it, your Honor.

THE COURT: It would be true of a

bribery but it would also be true of a

App. 20

person that is being subjected to extor-
tion.
MR. DECKER: That is right.

THE COURT: I would say the situation
| would be, perhaps, different but we only
have to deal with the facts that are in
the record. It might have been different
had Mr. Lisinski said to -- excuse me --
if Mr. Patras had said to Mr. Lisinski,
"I want to get my liquor license rein-
stated and I want you to help me. I'm
going to ask you to give somebody $1,000
to accomplish that." But that isn't the
way it happened. It happened just the
other way around. He asked him if he p. 45
could help, Mr. Lisinski's help, and then
Mr. Lisinski said I have to have $1,000 in
order to confirm what has happened here or
to pay off whoever did it, and he gave him

the $1,000. I don't consider that partic-

aS sas =” - —- even

ular transaction to have been extortion,

App. 21

——

frankly. As I said before, I have a
logical problem in saying that you can
extort something from somebody after the
fact, after the official act has been
accomplished. Because you don't have any
fear at that time, economic fear, that
anything is going to happen to you. You
have already gotten your license
restored.

So, I think that Mr. Lisinski has not
been properly charged under Count 1 and I
would find him not guilty under Count l.

However, as I said before, that lays
the pattern and the groundwork for what
happened in the future and every time that
something came up and Mr. Patras went to
Mr. Lisinski or even when Mr. Lisinski
came to him there was knowledge that
someone had to have some money in order to
accomplish this. At least Mr. Patras

thought somebody ought to have some money.

App. 22

I don't believe that the distinction
between economic harm to the William Tell
Corporation or the restaurant as an entity
can be successfully distinguished from
economic harm to Mr. Patras, which is what
is charged in the indictment. Mr. Patras
had all of his time, all of his energy,
all of his assets, if he had any net
assets, committed to these two restaurants
and the William Tell II was the one that
was in trouble. In fact, I don't know
what happened to the first restaurant,
whether it was even still in existence.
Whether it was or not, the economic harm
that he was afraid of was William Tell II
was going to be put out of business by not
having a liquor license. I can't follow
or, at least, I can't accept Mr. Decker's
argument that there are two separate
entities here that were fearing economic

harm and that therefore, since the jury

App. 23

p. 46

did not charge economic harm to William
Tell II there is a fatal variance or an
amendment, as you call it, to the
indictment by proof.

It seems to me that the economic harm
that was feared was clearly that in the
mind of Mr. Patras and it came through the
William Tell II as an entity but, never-
theless, was Mr. Patras' fear. In fact,
it would be a little difficult to imagine
a corporation as an entity having a fear
apart from its owner and apart from its
owner and apart from its president.

I suppose that is the reason you
object to the evidence about interstate
commerce with respect to alcoholic
beverages.

MR. DECKER: Yes.

THE COURT: From what I have said I
don't believe that is a distinction that

makes any difference as far as the law

App. 24

is concerned in this case.

I think IT have answered all of your
questions, Mr. Decker, or at least all of
your arguments on the basis of the
evidence.

To be specific, I find that the
government has proved paragraphs 1 and 2
of Count 1 beyond a reasonble doubt, which
has to do with the financial interest of
Mr. Patras in the William Tell II
Restaurant, which is not identified as a
corporation but which is identified by pe!
name, and the process for which liquor
licenses were obtained. That all is
alleged in paragraph 1 of Count 1, which
is incorporated in Count 2.

Paragraph 2 is an allegation of the
Original liquor license and the purchase
of liquor through interstate commerce,
which I believe has been proved beyond a

reasonable doubt.

App. 25

SE OE FI

ee

ES cna

Then passing on to paragraph 2 of

Count 2, there is no question about the
payment. As a matter of fact, it hasn't
been denied as to the $1,000 which was
asked for and paid by Louis Patras on
April 3, 1981 to Dean Lisinski in order to
help keep the liquor license for the
William Tell Restaurant and that the
defendant, therefore, knowingly and
unlawfully obtained $500 from Louis
Patras, which was not due to him or to the
Liquor Control Commission and was obtained
from Louis Patras based on consent of
being induced by the wrongful use of fear
of economic harm.

So, I will find Mr. Lisinski guilty
beyond a reasonable doubt of Count 2.

The same two paragraphs of Count l
are incorporated in Count 3, which I have
already found have been proved beyond a

reasonable doubt. Paragraph 2 is the

App. 26

ae

demand of $500 on May 29, 1981. It is
alleged that Mr. Lisinski wrongfully and
unlawfully obtained the $500 from Louis
Patras, which was obtained from him based
on consent being induced by the wrongful
use of fear of economic harm. There,
again, is no dispute that the payment was
made. It is my finding that it was made
because of a fear of economic harm. p. 48
Therefore, I will find Mr. Lisinski guilty
on Count 3.

Count 4 is the same except for the
admitted fact the $3,000 did not come from
Mr. Patras or from William Tell. However,
unbeknownst to Mr. Lisinski it was re-
quested from Mr. Patras and he attempted

to obtain it from Mr. Patras under fear of

wrongful use of economic harm and, al-

though it was not actually an interference
with interstate commerce and it was not

actually a payment which Mr. Patras

App. 27

aaa

or William Tell made itself, the $3,000
was an attempt to commit the crime of
extortion. I will find Mr. Lisinski
guilty on Count 4 of the indictment.

So, I will direct the Clerk to enter
a finding of not guilty on Count 1 and
guilty on Counts 2, 3 and 4 of the indict-
ment.

I will let the government have these
exhibits back which I have. I guess that
would include the transcript because they
don't need to be filed in the court
record. I presume they are already in the
transcriot of the court reporter's notes.

MR. STETLER: I don't believe they
were your Honor. I didn't notice the
stenographer taking notes at the time.

THE COURT: Wasn't she?

MR. STETLER: We will have a clear
record for the Court of Appeals because

the exhibits are clearly marked, the

App. 28

es or wee ———S
~ a ee TT TT ——_

eee ap See WH Onn

ee

eA NE OE TE TI

transcripts.

MR. DECKER: In order to prepare post
trial motions, your Honor, I will order a
copy of the proceedings today and for that
reason would request thirty days for post
trial motions.

THE COURT: All right. I can set a

date for a hearing in.

App. 29

---

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