Petition — Gibson v. United States

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83-1619 wes oo

October Term, 1983

PAUL W. GIBSON, .

Petitioner

| v. BE;

: UNITED STATES OF AMERICA ‘

Respondent ;

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

Albert F. Cullen, Jr. is

CULLEN & WALL ;

141 Tresont Street =

5 Boston, Massachusetts Pi x

et - Telephone: (617) 482 PS

ie. Paul W. Gibson ; i

missibly invited the jury to shift |

the burden of proof by instructing

the jury that if you think there is

@ real possibility that 2p tin see rs a

dant is not guilty he gets the x

benefit of the doubt.

Il. Whether the trial court by

its instructions permitted the jury to -s

find petitioner guilty if the jury | -

found that Plaintiff had threatened ==

- a *

picketing or other non-violent «= _ aA

activities of organized labor, Pome ge:

te a ee

TABLE OF AUTHORITIES

Cases

See te ae eres 5 Sa U.S. 141,

Ex. Parte » 121, U.S. 1.

Ford v. goeeee States, 273 U.S.

393, 47 * . > L.Ed.

793 (1927)

Gaither yv. United States 413

F.2d 1061 ees Cir. 1969)

Lane, 265 0. S. 393

Ste. 5 568 L.Bd.. 1070 ‘Ui924)

Russell v. elt: tes 369

aa : we

aces a5 ee *

. ? .

HO ine Nae y vom

a et aomed “a SS FEO ESD .

a Cases

United

& tates v. ; ‘a 3

(1930)

‘Uni tates v. | 446

° Cir.

‘United States v. Winter, 663 23 2

; F.2d 1120 (ist Cir. 1981) ad

Watson v. Jago, 558 F.2d 27 yas

330 (éth cir. 1976) ne

in Re Winship. 397 U.S. 8,12

358 90 S.ct. 1068 (1969)

Statutes | ie

The opinion of the Court of E

Appeals is not yet reported. It is ae

ES. incorporated into the petition as 7

- Appendix A . The District Court j “i

Bt entered no opinion pertaining to the . M

questions presented in this petition. sa

_ JURISDICTION

ee * The judgment of the Court of h

Appeals was entered on January 30, :

1984. The text of the judgment is

“incorporated. in this Petition as

| Appendix B . Jurisdiction of this —

Court is invoked pursuant to 28 U.S.C.

| asec, bgt eM

STATUTES

Title 18 United States Code § 1951

Interference with commerce by

mee iiaten

a r any way or

obstructs, delays, or affects commerce

or the movement of any article or con-

modity in commerce, by robbery or

me Sagas or attempts or conspires so

or commits or threatens physi-

cal "viitewe to any person or property

in furtherance of a plan or purpose to

do anything in violation of this sec-

tion shall be fined not more than —

nde ~ing or imprisoned not more than

Ege papih or both.

me ) As used in this section -

O) is omitted]

) The term “extortion” means

aS cae of property from

herp rcv! Fir 1 his consent, induced

4 ongful use of actual ai

eatened force, viols

fear, or under color of official

t. a

3) The term “coumerc el ‘means.

commerce within District of

Sol la,

ub sia e ited | ae

* i <n” ' = ho _ ea ee ee Oe Pe ee RO es TP ee Vn.

; oe Ts: FR we <a fon, 6 ee 7 pa, er) v2 4

= i Ah, UF >

* On October 21, 1982, the grand

_ jury for the District of Massachusetts

indicted Petitioner Paul W. Gibson

under 18 U.S.C. 1951(a), charging him

with attempted extortion of Advanced

Industrial Systems, Inc. (hereinafter

referred to as A.1.8.), a Massachu-

setts corporation, through threats to

Thomas Guilderson, an officer of A.1.8.

It was alleged that the attempt to |

obtain money was “induced by the wrong-—

ful use of fear of economic harm to

AES. “and physical hara to the Person

. , ea ye a hie a Se a

om 3 hee : ae Sl

such payment. was made. . %

Federal jurisdiction was based on

the alleged violation of the above

cited criminal statute.

After arraignment on November 1,

1983, Paul Gibson filed pre-trial

motions including a motion for a bill

of particulars requesting, inter alia,

the means by which the alleged offense

was committed. This portion of the

motion was denied.

The jury trial began on January 18,

1983, and continued until January 21,

1983. At the close of the ‘government’ *<

case, Paul Gibson moved for a judgnent. . | |

of acquittal. _ The action was denied. ae

Petitioner testified in hie o “aa

* fil? FE Ag * Te” 2» eee. > a te Bee sh

— 4 Soe ae" i! S 5 5 ee ae . “ GIS ey -* ny gahnt

> ° ey.

* . - ~

-— Bewtified thet when he spoke to

Guilderson about "problems" that : :

A.I.S. could have at a job site in we

‘ Rhode Island, he was referring to “f

informational picketing or other se

legitimate labor activity. :

On January 20, 1983, both sides

- vested. The defendant renewed his ey

; motion for judgment of acquittal; the

court again denied the motion. Peti-

. tioner subsaitted requests for jury ‘e

; instructions, including an instruction

: | " ill

3 ‘defining a reasonable doubt as "a a fe

“od doubt based upon reason and common

_ sense."

bo Cae The judge instructed the jury. with me

7% ; 2p aa

z rx -

e _-Fespect to ‘presumption of Annocence et

we! cr"

es oe ae te oo beh

crime charged by credible evidence

beyond a reasonable doubt.

= wer rp of proving the 9 a9

t guilty beyond a reasonable

doubt reste upon the government.

This burden never shifts through-

out the trial.. The law does not

require a defendant to prove his

innocence or for that matter to

produce any evidence. The defen-

dant may rely on evidence brought

out on cross examination of wit~

nesses for the goverment. and in

this case he relies both on that

and also on the evidence that he

presented during the course of his

defense.

If the government fails to prove

the defendant guilty beyond a reas-

onable doubt, the jury must acquit

pees ze £; saaeey ph say

tisa ase us everyday

sonvereatian and it does not the"

ing from the state of the evidence.

Proof beyond a reasonable doubt is

proof that leaves you firmly con-

vinced of the defendant's guilt. _

seetieal nad cent

After the instructions were given

the defendant objected, inter alia, to

that portion of. the charge. "I object

to your reasonable doubt charge... I

think it shifts the burden"

The trial court also charged the

% jury as follows:

The tera "wrongful" is used in the

statute and is required to be

‘ , o ew 4

Soh op nerwea# ’, f

tnd >!

7»

. f

Pay or ho ae

ae ay

oF,

“so

ise

‘*

Sat tees

payoffs, and this

Rhode Island and was taking soney

to pocket it periodically, well ve

then, if you reach that conclusion

and if the other elements of the

offense as I have been and will be di

eels pe Yee oe ge 3s

neo wong e or to er

lawf activity + union, and

that is part of government's

allegation, that is, that the

defendant knew of the vulnera-

bility to union activity of the

Guilderson company down in Rhode

Island and he exploited it, it is

the government's allegation,

telling Guilderson that he could

take care of it if he paid hina

some money.

Well, if the intent on behalf of

the def t was to do that, was

to get a personal payoff by means

of exploiting Guilderson's fear of

violence to the job in Rhode

Island or personal harm to his

family, and if you have the impact

on interstate commerce and the

other essential elements that I

have and will be describing, then

if the government proves t at

& beyond a reasonable doubt it has

proved its case.

Following the conviction of the Peti-

tioner, the Court of Appeals for the

«> First Circuit affirmed the judgnentof

: the District Court. o

jee Oe

The fundamental elementary right ’

of the defendant to put the government

to its proof is an essential part of

our criminal jurisprudence. In Re

Winship, 397 U.S. 358, 359, 90 S.Ct.

1068, 1070 (1969); see, Taylor v.

Kentucky, 436 U.S. 478, 483 98 S.Ct.

1930, 1933 (1978). In the present

case the district court's instruction

on reasonable doubt eroded the concept

of reasonable doubt and shifted the

burden of proof. The instruction

J ™

st es,

%,.

< at

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- wT .

SRR > NAS ees

treated the matter of proof asa fair ee

fight between equal: adversaries each

being put to ite Proof - “the

jury of the guilt of the defendant and

on the other hand the defendant to

create a “real possibility" that he is

not guilty.

After the instructions on

reasonable doubt were given the

defendant objected, inter alia, to

that portion of the charge. "I object

to your reasonable doubt charge... I

think it shifts the burden." The

The Court: I want to say

something v briefly on that

particular point. I did give what

have always given and t

+f ot

past and which is perhaps

: vulnerable for the reason stated

by Mr. Cullen. I don't think so,

but he has a point. What I want

the record to show is that the

source of it was what I just

stated in order that the

definition may be considered, if

this case should get to a hic~her

court. ¢

In the Commentary to the

Definition of Reasonable Doubt to

which the court made reference it is

stated:

The committee recognizes that many :

ear opinions lend strong :

port to the standard ‘

Pomuslasion that a reasonable rr?

doubt is a doubt that would cause.

a person to hesitate to act in the

most important of one's own |

affairs. E.G. . 44.060

_ - iw yr h - en ee a. 4 - pve ~~. ore v a> Serer oe 8

ie = _ n : . a* . Pia « a ; ‘ ~

: “ < ‘

about past events does not usually

play amajor’role. Indeed, ae:

decisions we make in the gost” rey

t affairs of = lives -

choosing a ngeeas |e a job » & place

to live, and the - generally .

involve a very heavey element of iy

uncertainty and risk-taking. They . ‘ee

jurors ought to sske in crinisal i

cases. *

In fact the Committee did not consider

whether the instruction impermissably

shifts the burden of proof.

The total instruction on

reasonable doubt conveyed a clear

message. It told the jury that the

jury could ask itself two questions.

The first: Based nets the evidence

are you firmly convinced that the

| defendant is guilty?. The second; Do

or you think there is a real wien < B 4

that. he is not guilty?» : : Z e

| The court conveyed the tapression — ie

A .: ‘that if the jury did not i cee

a me was @ ta possabtlity ome on

defendant was not guilty they should.

convict. By using the phrase “on the

other hand" the court enphasized the

fact that it might be an either/or o

situation. That is, they could : :

convict either because they were. "

firmly convinced based on the evidence Z

that he was guilty or because they did 4

not think there was a real possibility ‘

that he was not. Such an instruction ts

is clearly erroneous. The jury must : q

be left solely with the sense that it 3

is the government's obligation to | : he

convince thea of his guilt with utmost oe

certainty. In ‘re Winship, supra, 397 ta a

U.S. at 364, 90 8.Ce. at 1073. The

question is not whether the jury

thinks he ie not guilty. He ts .

bd tries iat wri guilty. We 4 is enti ele a : 3

suspicion or conjecture. Taylor v.

Kentucky, supra, 436 U.S. at 484, 98

S.Ct. at 1934. While the charge did

mention the presumption of innocence

it was greatly undermined by this

instruction on reasonable doubt.

The trial court in effect told the

jury that in order to acquit the doubt

must be "a real possibility that the

defendant is not guilty."

This shifting of the burden to the

defendant was further emphasized to

the jury by the court's including in

its instruction just a few short

paragraphs before the objected to

language the statement:

The burden of gS apd

Ley

+ od

”

‘of witnesses for the ‘goverment, ‘

and iff this case he relies both on

that and also on the evidence thet

ABS oem i during the course oi

By including these comments just

before its instructions on reasonable

doubt the court conveyed to the jury

the impression that the defendant

relied on his evidence and

cross-examination to create the "real

possibility" of innocence referred to

shortly thereafter. The impression

was created that the defendant had

some burden to create a reasonable

doubt, or as the court phrased it here

“a real possibility that he is not

guilty." The overall effect of this

instruction on presumption of

innocence and reasonable doubt |

conveyed to the jury the sease that :

gis iApeeet Set pear see

establish doubt .3/

Viewing the judge's instruction on

reasonable doubt in the context of the 2

overall charges (see, Cupp v. 3

Naughton, 414 U.S. 141, 146-147, 94 N ae

§.Ct. 396, 400 (1973)) it is clear “4

that the offending paragraphs came at i

the outset of the charge ‘and formed an vi

integral part of the instructions on P

burden of proof. The district court ‘

itself indicated it had inserted new

language which might be questionable.

37 Wo specific objection was made to

~ the court's comments as to the

| The error was of such a nature that in

= ‘the present case it could not be :

« erased or diminished by the balance of \

| the charge. There is no way to g:

determine which question the jury oe

‘ posed to itself during its 2

deliberations and decision. The error ye

: was not harmless beyond a reasonable | 4

doubt for in this case the erroneous a

instruction might have made the 3 i

difference between acquittal and 2% *

conviction. j . ‘

) Accordingly, the Court of Appeals +f

_ erred in upholding Petitioner's Rea ts

conviction. ‘i | gia

In the indictment in this case,

the "wrongful use of fear of economic

harm to A.I.S. and physical harm to

the person of said officer and his

family" was particularized: "in that

the defendant threatened that violence

would be done to the business of

A.1I.S. and that physical harm and

violence would be done to said officer

and his family unless such payment was

made." 7

The means by which the extortion

was allegedly committed were clearly

limited to threats of violence to the

business or threats of physical hara

to Guilderson and his family. The |

ee “3 Aodictnent did not include a threat of io

: estoy ptcbaring ¢ or m aioli} labor ee —

activity.

The trial court gave misleading

instructions which allowed the jury to

find the defendant guilty if they

believed that he hed threatened

picketing or other legitimate labor

action. This was an impersissable

amendment of the indictment, and

requires reversal. United States v.

Cusmano 659 F.2d.714 (6th Cir. 1981).

The relevant section of the

court's charge to the jury follows:

The term "wrongful" is used in the

statute and is required to be

proved to limit the coverage of

the Hobbs Act. Obtaining pr

by force or fear is wrongful only

in those instances where the

alleged uxcoeneents® has no. wba gen

weltctaeer “hake

pom te of ‘AT.8. oF or

oe “ oe

oe ' Co ee

—— A - Tens = ace wer On - ree =~ es aes « Fr 2

x ia . wie <3 s

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The Hobbs Act then does not, for

: exaaple, condemn the use of

coercive measures to obtain wage

increases or to carry out a

collective bargaining agreement,

if there is an ent between a

union and an eaployer. On the

other hand, the Hobbs Act does

forbid the use of coercive means

to exact personal payoffs, and

this aspect of the case is clear: .

that if the government proved that

the defendant was exploiting fear

or anxiety on the part of

Guilderson about gett into

trouble with the union down in

to pedbet Spi pecteaiesily, well,

to pocket it ally, well,

: then, if you reach that conclusion

- and if the other elements of the

offense as I have been and will be

further desc eae to you have

been proved a reasonable

doubt, then you would be warranted

to finding the defendant guilty.

ake

Thus "coercive means” to exact ;

personal payoffs are prohibited, with “i A

no limitation of the natuare of such

“coercive means." As long as

a Petitioner was exploiting fear about

"getting into trouble with the union

down in Rhode Island" for his personal ©

profit, the jury could find Petitioner _

De! Fi RS

by “problems” with nion local in >

° 4 ‘

: nm ge

aoe 7 : 3 Rs a

a“ : ee, 9 , ; Daee: oe eae east 2x i Mi ae ok

* 4 4 . i RE: ae

guilty. | : ae

The trial court strengthened the

jury's impression that a threat of

peaceful: picketing would support a | )

finding of guilty as it continued: 1 |

It has not been suggested by

anyone here in the case that a

union official may exact payments

-to himself personally to cnanbanitine

labor peace. Unions have all

sorts of legitimate rights under ,

the law and, indeed, under the Bh.

Constitution, but persons

connected with the union gay not

bargain away those rights for

personal fake: A union leader way 3

not say: We won't picket if you >

pay me . perasns’ 7 a sum of money. ee

le Court of Appeals stated |

in its discussion of this question,

“As already pointed out, defendant i 3

never used the word "picketing" and ;

his choice of words could reasonably Cs.

be inferred to connote physical 7 sap ee

violence," this overlooks the fact =

that Petitioner had testified at trial

A ¥s

x th

picketing or other legitimate

activities. While it is true that a

union leader cannot extort personal

payments by threats of picketing, a

threat of picketing or other lawful

activity was not charged in the

indictment in this case. But the jury

was never instructed that a threat of

peaceful picketing or other lawful

activity could not support a

conviction. Indeed, the instruction,

as it continues, leads to quite the

opposite conc lusion:

There may be a perfect right under

but that is the rigne thet ie”

prsersred ~ § the law, and there is

the Hobbs

ro terbids, if other esential

elements are en » officials

ti a company down in :

sland and he exploited it, -

SS el

could take care of it if he paid .

him some money. a

The grand jury that returned the

indictment was willing to charge that o

Paul Gibson threetened violence to the “’

business of A.I.S. and physical hara :

and violence in the family of i

Guilderson. But the court had no way :

of knowing that the grand jury

considered a threat of picketing or

other legitimate labor activity; the

blunt fact is that the grand jury did

not so charge. By allowing the jury

to consider a means of extortion not

charged in the indictment, the court,

in effect, amended the indictment.

“an enendsent of the indictment

occurs where the charging terms of the

or court after the grand jury has |

passed upon them” Gaither v. United

States 413 F.2d 1061, 1071 (D.C. Cir.

1969)."[T]he settled rule in the

;

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« - A

an bk “ea RY oes

SM NL

federal courts [is] that an indictment ; :

may not be. amended except by 4

resubmission to a grand jury, unless :

the change is simply a matter of a

form. Ex. Parte Bain, 121 U.S. 1. [7

S.Ct. 718]; United States v. Norris,

281 U.S. 619 [50 S. Cr. 424]; Stirone

v. United States, 361 U.S. 212 [80

S.Ct. 270)." Russell v. United States

369 U.S. 749, 770, 82 S. Ct. 1038,

1050 (1962). United States v. Winter,

663 F.2d 1120, 1139 (let Cir. 1981).

"A court cannot permit a defendant to

be tried on charges that are not made

in the indictment against hia.”

2 Pu UH. ot 27, 00'S 08. ac.gr8. “os ee

‘3 j vo ‘ ;

. Seb a Pe ty

ie a. en ee

"ae

In Stirone, the indictment charged

that the defendant interfered with

interstate importation of sand, but

the trial court charged the jury that

a verdict of guilty could rest on

interference with interstate shipments

of steel. This Court reversed,

stating:

The grand jury which found this

indic tment was satisfied to charge

that Stirone's conduct interfer

with interstate importation of

sand. But neither this nor any

other court can know that the

grand jury would have been willing

to charge that Stirone’s conduct

would interfere with interstate

exportation of steel from a mill

later to be built with Rider's

concrete. And it cannot be said

with certainty that with a new

basis for conviction aR

Stirone was convicted solely

the charge made in che, indiz cent

cee frum ee asa aaa sag

t c m™ -

seat of the?

U.S. 393, 402° . Ct. » 527,

68 L. Ed. 1070. While there was a

variance in the sense of a

variation between _—- and

proof, that variation here

destroyed the defendant's

substantial right to be tried only

on charges presented in an

peace returned by a grand

rp oe Deprivation of such a basic

is far too serious to be

created as nothing more than a

variance and then dismissed as

harmless error.

at 217, 80 S.Cr. at 273

In the present case, the jury

might have based its conviction on a

threat of picketing, a means not

charged by the grand jury. The

government cannot argue that the

erroneous charge is harmless error.

The Sixth Circuit has decided ea

case on all fours with this appeal.

In United States v. Cuanano, 659 F.2d

714 (6th Cir. 1961), the indic taent

charged a violation of the Hobbs het. ate

% i od 4 = 4

| "ike wrongtul wae of a fone and t r

was particularized, "in that the

defendant's did threaten certain

drivers .. . with unprofitable truck

loads, the loss of their jobs and the

loss of equity in their equipment."

Id., at 715. The indictment thus

alleged only one means of extortion:

threats of economic loss. Id., at

715. The trial court instructed the

jury that they might consider threats

of a physical violence, and the jury

returned a verdict of guilty. The

Court of Appeals reversed, holding

that ". . . when one means of |

extortion is charged, a conviction

must rest on that charge and not

another, even if it is aseuned that

under an indictment drawn in general

terms @ conviction might rest upon a

‘ Pisin of either form. of extortion. . ae

As a matter of law a defendant i

prejudiced by a constrictive

amendment. . Watson v. Jago, 558 F.2d.

330 (6th Cir. 1976). An improper

amendment which allows conviction on a

ground not alleged by the indictment.

is fatal error and is per se

. Teversable.~ Stirone, supra at 219, 80

S.Ct. at 274; United States v. Stewart

Ci*aical Laboratory, Inc., 652 F. 2d

804 (9th Cir. 1981). The Court of

Appeals erred in not reversing the

conviction on the basis of the

constructive amendment by the trial

court of the indictment.

j o-

For the foregoing reasons the -

Petition for-a Writ of Certiorari

og should be granted.

Attorney for a PO

Paul W. n aN ae as

sae . % ae - ©

i. - 37

“ + +

ae -

7 +

: & - * :

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UNITED ‘COURT OF

No." 83-1154 | | *o

UNITED STATES OF AMERICA, il

Appellee, a

Vv.

4 PAUL W. GIBSON |

et Defendant, Appellant.

APPEAL FROM THE UNITED STATES #

“3 DISTRICT COURT .

FOR THE DISTRICT OF MASSACHUSETTS

-[Hon. W. Arthur Garrity, Jr.

U.S. District Judge} —

a j

. a <

: “ga

_ “s ’

BOWNES, Circuit Judge.

Defendant-appellant, Paul W. Gibson,

appeals a jury conviction for

attempting to obstruct commerce by —

means of extortion under 18 U.S.C. §

1951(a) (Hobbs Act). Gibson

asserts reversible error, raising five

issues on appeal: (1) the trial

court committed error in denying a

motion for judgment of acquittal; (2)

there was a constructive amendment to

1. 180U.S.C. § 1951(a) provid

Whoever in any way or degree

obstructs, delays or affects

commerce or the movement of any

commits or

‘article or. ate in Roars.

cleeapta or cone . 80 £0 40, or

the indictment; (3) the trial court's

% jury instruction on reasonable ‘doubt;

s | (4) the trial court erred in not

giving instructions on the defendant's j

- theory of defense; and (5) defendant

‘ was erroneously denied exculpatory A

: evidence relevant to sentencing and e

punishment. : %

We affirm.

We review the evidence in the *

light most favorable to the

: government. United States v. Morris,

700 F.2d 427, 432 (1st Cir.), cert.

4 | denied, 103 S.Ct. 2128 (1983); United

States v. Winter, 663 F.2¢1120, 1127.

(Ist Cir. 1981), cert. denied, 103 a

S.ct. 1249 (1982), ee

During the relevant pertod,

co-owner of Advanced Industrial

Systems, Inc. (AIS), a Massachusetts

ee eee

"3S

‘aes Se

roofing company. 4

In September of 1982 AIS was a

working on a $129,800 roofing job in ;

Rhode Island; its employees were a

nonunion. On September 30 Guilderson f

‘

received a message from his answering

service to call defendant at the

v , office of the Roofers Union.

Guilderson called defendant, who

questioned him as to the size of the

Rhode Island job and then told

Fa eh ASwpet, a iy fant 8 :

ee ae ee ce he ate se

ee NN

: " rey 4

Py ents Foe

Guilderson that he had "a problen." — m

d Defendant said that the business agent ~~

a for the Providence Roofers Union, :

he would think about it and get back

to defendant. Defendant insisted that

Guilderson call him the next morning

with an answer.

Guilderson promptly called his

attorney. He then went to the job

site and, after consulting with his

partner, removed all of the company's

valuable tools from the site so as to

safeguard them against vandalism. The

next morning Guilderson had his wife

call the defendant and tell him that

he could not call him back until the

following Monday, October 4.

On Monday Guilderson met with two

FBI agents and agreed to have his

conversation with Gibson recorded.

The pertinent parts of the |

conversation are as follows:

$25 bc ar

<¥ - .

NRE

hell he could for the job. Okay.

3 Gibson: And I said that I could

take care of him, perhaps.

Guilderson: So if I say no I say

: don't want to do septhing about 2

= Gibson: (unintell) that he has to

2 do what he has to do.

Guilderson: Then then then Cramer

gonna go ahead and do what he

thinks he has to do so ah

a t By2*

URES. (rel a aa tn

Z _ Gibson: Right ya | 4

. Guilderson: To give us a problem .

| Gibson: Right 4

f. Guilderson: But ah but if I deal :

aw with you, you can get him off ay

| ‘back, is that it?

‘ . Gibson: Well, you won't deal with eo

ae" me, what you do is deal with hin. me:

: Guilderson: Oh, I'll deal with =

Mase Het aay

Gibson: Right a8 eee

derson: Alright sowe are,

rect, ¥

Further into the conversation, a

meeting was arranged for the next day

at Linda Mae's Restaurant in |

Dorchester. When Guilderson asked how

much money he should bring, defendant

said that Guilderson should make an

offer and he would decide if it was

enough. Guilderson offered 5500.

Defendant then put Guilderson on hold

and falsely claiming to have Cramer on

another line, said, "I got him on the

other line, can you make it seven and

a half?" The amount of $750 was

agreed upon. The following omneree

then took place: ;

iGufidersoa!: Well, let me ask you

this, is that gonna take c core sof

my Serehant se ie

Gibson: Do you know what you are

doing here? eo

Guilderson: Do I know what I's ge

doing? ;

Gibson: Ya z

Guilderson: I don't seex to have

much choice here do 1?

Gibson: Ya

During the call defendant said

that Guilderson could fight but "I

don't know how auch [disputed word] he

can give you." Guilderson testified 4

that the word not faithfully 3

reproduced was "violence." Defendant s

claims it was “probleas.” Near the ‘el

rae

end of the conversation defendant

assured Guildersoa that he “ean

guarantee ya the job is free and clear.

of any problems."

.Guilderson: Let me ask you a

bapa ps all ht let me ask you

a. tion all r 2? You're a

: g0°% guy and all ike that right?

ou're doin me a favor on this

alright?

Gibson: I hope I an.

ee Well, what I'm saying

Gibson: That I am as far as that

job is

Guilderson: What I'm ES is

ahm I don't want to find out that

ah you know this guy didn't get

taken care of or whatever. How

will I know you know that he isn't

Gibson: The guy ain't gonna come

and kiss you and say Tommy

Guilderson: That's not what I's

: talking about ale ‘know what I mean.

Gibson:. The 's taken care of.

The guy is t care of.

Guilderson: Okay.

Toward the end of the enc ounter

Be, ed Se

c. 4

ner Na,

mest

any

YAS

af a :

oer wa &

a. iss

a ) be ON . are

‘

You want to count it. (paper

rustling)

Gibson: Nope, I can't fucken

trust you I would say “where does

Tom live?"

Guilderson: Uha , uhm you mean if

the money wasn't "there what?

You'd say where do I live?

Gibson: Yeah, I'd say "where does

Tom live?" or “let me call him up

and find out where the hell he

lives" and what have you.

Guilderson: Uh, uh

When Guilderson again expressed

concern about the Rhode Island job,

the defendant said: “Let me tell you

something there's nothin going to

happen to that, okay? When I said to

you this morning I guarantee this job, -

I can't guarantee you know six Poy iiee.” e

-down the road or three months down the.

“reat there.”

« - “ ’

my abe . 2.

vi Fates ee Se ae =e ot

> ee Se See ea aS cal

an a

eer

= £ oy

Oi "; ye ie

! wal whe .

ath 5° alee

ee a

~~"

be. wT as

Motion for of . *

Our review of the district court's e

“ decision to deny a motion for

a acquittal is quite limited; we must ‘

fy .

affirm unless the evidence, viewed in se

* the light most favorable to the “4

’ government, could not have persuaded ;

any rational trier of fact of the 4

3 defendant's guilt beyond a reasonable - ;

e doubt. United States v. Cincotta, 689 +

4 F.2d 238, 241 (1st Cir.), cert. as

4 denied, 103 S.Ct. 347 (1982). See 7 ;

: also United States v. Weisz, 718 F.2d a

413, 438 (D.C. Cir. 1983).

Defendant argues that his use of

the word "problea(s)" in his

conversations with ieee a

- picketing or other decok-eane

this reason that the Hobbs Act

exc ludes fren its reach "the use of

force to achieve legitimate labor

ends." United States v. Enmons, 410

U.S. 396, 401 (1973); United States v.

Jacobs, 543 F.2d 18, 21 (7th Cir.

1976), cert. denied, 431 U.S. 929

(1977); United States v. Quinn, 514

F.2d 1250, 1257 (Sth Cir. 1975), Cert.

denied, 424 U.S. 955 (1976).

If the reference to "problem" in

the first conversation had not been

coupled with a pointed suggestion that

the “problem” could be solved for a

‘consideration, there might be some

force to defendant's contention, Any

_ payment. received by Gibson for taking =

Sa a of the rer a could ‘not have

Lie ag ae

ips, a

CO Rae Pe I a ar A es ee Ba. ORE Tet mer. ee,

Guilderson understood Gibson's

mi, offer to solve his company's "problea" , A

4 for a consideration as a threat of i

: violence to himself and to company .

: property. He promptly moved to meet -

: his perceived threat of vandalism by "4

; removing or securing all of the of

y | valuable tools at the job site. We :.

; think that the jury could properly b

a infer that Gibson's use of the word é

. "problem" plus his demand for a payoff 4

- to solve the problem was deliberately :

calculated to raise the spectre of 4

violence: | fe

The subsequent recorded fe

conversations also Bia iigee ager a e

- constructively amend it. To prevail

nal ae

indictment theory, appellant aust ie gh

. *,

used the word "picketing." The word

“problea(s)," albeit vague, has an

ominous connotation. The connotation 3

of violence was heightened, not “

dispelled, by the subsequent *

conversations. “9

The district court's denial of the ss

defendant's motion for acquittal was 4

soundly based. d

Constructive Amendment to the

Indic tment

The question is whether the trial

court's instructions to the jury so

differed from the indictment as to

on 4 constructive anenduent to the

7 iy atte aS -

show: Qo thet to,se ete es

infcraed of the nature and cause of : 4 2

the accusation. United States v. i

Kelly, No. 83-1082, slip op. at 6-7 ‘

(lst Cir. Nov. 30, 1983).

Defendant's argument starts with :

the indictment: a

2. From on or about :

September 30, 1982 to on or about

October 4, 1982, the defendant, é

Paul W. Gibson, did knowingly, <a

willfully and unlawfully attempt .

to obstruct, delay and affect .

commerce by means of extortion in Ne

that the r upeganem ab Paul W. |

Gibson, did at t to obtain P

money of A.I.S. an officer of K

A.1.8., with pa Rowe Sane ae a

consent wro

use of pts of economic Duan ae

A.1I.S8. and physical harm to the

reon of s officer pines eee :

ask in. ¥

chreataned that. violence ve ey ast8- bs nie

pe Be done to che b harm and vio : ..

would be done to said officer and

a ae

Salis Sie Oe . oS ee ies 2 Sa

x ¥

payoff may be sufficient to convict."

The jury instruction was framed in

terms of 18 U.S.C. § 1951(b)(2), a

definitional section of the Hobbs Act

which reads in relevant part, “[t]he

term ‘extortion’ means the obtaining

of property from another, with his

consent, induced by wrongful use of

actual or threatened force, violence,

or fear ...." The trial court

correctly explained the extortive

act: exacting a personal payoff from

another to eliminate any union |

activity on the Rhode Island job. aite;

and the means by which the act was

accomplished: threatened violence

;

~ 2

, " “ yore 4 , Ws ~

Ge ty eT Tee ee eee een

a oe ; : : : : ig

[Footnote continued]

It has not been suggested by

yone here in the case that a

union official may exact payments

to himself personally to guarantee

labor peace. Unions have all

sorts of itimate rights under

the law, indeed, under the

Constitution, but persons

connected with the union gay not

bargain away those rights for

personal gain. A union leader may

not say: We won't picket if you

pay me personally a sum of money. -

re may be a perfect right under

the law for the union to picket, .

but that is the right that is

preserved by the law, and there is

no right, and, indeed, the Hobbs

Act forbids, if other essential

elements are proved, officials

taking a or their own

purposes, that is, lining their

own pockets in order to preserve

labor peace or to vent lawful —

activity by the union, and that is +f

part of the 's :

allegation that is, that the yt

defendant knew of the |

vulnerability to union acti ° 4

the Guilderson company in.

be Rhode Island and he exploited it, te

¢ ‘ it is the al .

“ by telling

could take |

vs Tae

- ' 3 2 2

is ; % : »

‘a was to get a pert

= ~ « en ae Poe

‘. ng of . : ; of be .

‘ . 7 hee +: : -— - : ;

-" Pes : es. . v% ev bs . 7 te. ¢

e= bs 2 7 PP et A = ry A , ae, ” a . yn: *

BR 9 ne Se Cn eed aePenrs

7 oy nar : - P h =e ee ad ot? oh) St a

ier 4 ifthe 5 eee a se

2% aa >. 3 i —_ td irr a

vs > ‘ : * + e ~

4 a pe te - a 99s — *

_ -- . x 4 ’ 4

els,

s.* 0. *

~ -

[Footnote continued ]

Rhode Island or og hara to

his family, and if you have the

impact on interstate commerce and

the other essential elements that

I have and will be describing,

then if the government that

a reasonable t it has

proved its case.

The court did not, as defendant

contends, give misleading instructions

allowing the jury to find defendant

guilty if they believed that he had

threatened picketing or other

legitimate labor action. As already

pointed out, defendant never used the

word “picketing” and his choice of

words could reasonably be inferred to

connote physical violence. Defendant

from.che cos in theiadigteest.qad be

was fully informed of the nature of

the a hee

; 2 *

The Instruction on Reasonable Doubt a

The challenged instruction was as

follows:

If the government fails to

prove the defendant guilty beyond

@ reasonable doubt, the jury must

acquit hia. Proof a

reasonable doubt is a phrase used

in everyday conversation and it

does not need extensive or

elaborate definition. It is a

reasonable doubt based upon reason 4

and common sense and arising fros

the state of the evidence.

‘Proof beyond a reasonable

doubt is proof that leaves you :

firsly convinced of the a

defendant's guilt. b

There are very few things in :

this world that we know with

absolute certainty and in criminal a

cases the law does not require a

< * 3° hs of

Ne: y whe the one of innocence. (Emphasis

3 _ This instruction is part of a

ae ss pattern jury instruction on reasonable

4 doubt formulated by the Federal _

“"‘ Sudictal Center. : _

Pattern Criminal Jury Instruction §21,

: Federal Judicial Center (1982).

a4 ore Defendant argues that the phrase

"on the other hand" improperly led the ¥

“ Jury to believe “chat [it] could Co ee

convict either het eese [it was] firaly S

is convinced, based on the evidence, that — -

uil cy, or because [it] €id not

7 thiol ithets ves a real possibilicy

sonst site 2 sot." Thus, ic te he ihe :

: eee Ct ae i its SO ee, ye . you se i } ry aM A.

- - . “ r % . ~~

Appellant's argument proves once

again that any attempt to define

"reasonable doubt" will probably

trigger a constitutional challenge.

See United States v. Drake, 673 F.2d

15, 20-21 (lst Cir. 1982), for a

compendium of cases in this circuit

involving attacks on definitions of

reasonable doubt. It can be said

beyond any doubt that the words

“reasonable doubt" do not lend

thenaselves to accurate definition.

Altough we think that the sentence

beginnng with “If, on the other ‘hand™

eight possibly engender some confusion

as to the rbunten'ot vveatels it grooe

ots he

Par

es ie i ee ae

eer ss

context of the overall charge." Cupp

‘Vv. Naughten, 414 U.S. 141, 146-47

(1973) - The district court also

instructed the jury: "The burden of

proving the defendant guilty beyond a

‘reasonable doubt rests upon the —

government. This burden never shifts

thorughout trial. The law does not

require a defendant to prove his

innocence or for that matter to

produce any evidence." This was

sufficient to dispel any possible

confusion or misunderstanding “eure

frou the ‘reasonable ne basig’ definition.

to a specific instruction on his

theory of the case." 2 C. Wright & A.

Miller, Federal Practice and Procedure

§ 428 at 689 (1982); see United States

v. Brake, 596 F.2d 337, 339 (8th Cir.

1979). The refusal to give a

particular requested instruction,

however, is reversible error only if

“the instruction (1) is

substantively correct; (2) was not

substantially covered in the charge

actually delivered to the jury; and

(3) concerns an important point in

the trial so that the failure to give

it seriously impaired the defendant's

ability to effectively present a given

defense." United States v. Grisson,

645 F.2d 461, w. ia SEs 3982). ‘ ae

“ ae iheoers: ~ ee a

instructions. United States v.

Morris, 700 F.2d 427, 433 (ist Cir.),

cert. denied, 103 8.C. 2128 (1983);

United States v. Gaines, 690 F.2d 849,

855 (llth Cir. 1982); United States v. oe

Skinner, 667 F.2d 1306, 1310 (Sth cir.

1982); United States v. Brake, 576. <

F.2d at>339; United States v. Westbo, a

576 F. , 289 (10th cir. 1978). 4

We have carefully read the charge

and conclude that each of the seven

points of appellant's theory of

defense> was clearly and adequately

Appellant's seven-

ee is tet forth ay satiate Sin!

ty, A pat to do.

[Footnote continued]

incident of free speech.

[3] Threats to do only what party

making them has a lawful right to

do are not unlawful.

{4}. Labor union members may bring

such lawful pressure to bear as is

within their control to induce

non-union employees to join chen.

[5] There is an exceptior to the

statute. You may not convict a

labor union official of a

preet.s rpsnecn. e Danie: e he +

pursuing legitimate objectives o

organized labor.

[6] Paul W. Gibson <ontends he

accepted the money on behalf of

the union and that his goals of

either obtaining work for the

members of his union or of

obtaining compensation to his

union for the agreement not to

exercise its legitimate rights are

ee goals of organized

Fe ey eS re ree ee ee ee eae

By Se, 2 d > he ye ; ; "6 % Pi . + ois

of defense, the trial court charged,

/ “Auter alia, "The Hobbs Act then does

not, for example, condean the use of f

ar coercive measures to obtain wage <*

increases or to carry out a collective ’

bargaining agreement, if there is an

agreement between union and an

employer."" The second theory of + kd Se

defense was also covered by the

district court: "Unions have all

ss worte of legitimate rights under the ig}

law and, indeed, under the BS a S

i, Constitution .... [T]Jhere may be a ae

perfect right under the law for the — a

union to picket, but that isthe right —_—

: that is preserved by the law...." of ’ 3

. h- -

Py ia ie ge We

U.S.C. § 1951 violation, and the

-_ government's burden of ptoof.

4 The jury instructions were clear,

% comprehensive, complete, and

s accurate. Defendant's contention that

a the charge negated his “ability to

sl present a given defense" is without

Exculpatory Evidence

A week before the sentencing date

defense counsel moved that the

government produce "any and 411

information in its possession which is

_ favorable to the defendant Bs the

that these named individuals "spoke

well of the defendant and knew of no

criminal conduct." The motion further

alleged that this information and

similar statements the government

might have “would assist the defendant

and his counsel in preparing and

presenting to the court an appropriate

report regarding his character and the

circumstances surrounding his behavior

which would be helpful in imposing

sentence."

We agree with the district court

that this attempt to dredge ones

* - favorable out of the government files

2 does not cone within the letter,

by defendant. It carefully read and

took into consideration a large number

of letters attesting to defendant's

good character. The court tejected

the government's recommendation of a

three-year sentence and imposed a one

year sentence. Its reasons for the

sentence were stated fully in the

record.

There was no error in the

sentencing process.

Affirmed

government of prior similar misconduct

UNITED STATES COURT OF APPEALS

For the First Circuit

83-1154

UNITED STATES OF AMERICA,

Appellee,

PAUL W. GIBSON,

Defendant, Appellant.

JUDGMENT

Entered January 30, 1984

This cause came on to be heard on

appeal from the United States District

Court for the District of Massachu-

setts, and was argued by counsel.

Upon consideration whereof, it is

now here ordered, adjudged and decreed

as ation: The judgment of the

District Court is affireed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.