# Petition — Gibson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 960

## Text

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

rs

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

aa

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

ca

* 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’ * 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. _

>
fe
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
a,
ae ay
oF,

a

oO
“so
aa
a
ise
SA
es
~
‘*
ee
ea
oe

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 ™
i
»

st es,

%,.

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

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ee

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
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

y
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
r"

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

ao

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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yi J > « ,
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
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an a

eer

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Oi "; ye ie
! wal whe .

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ath 5° alee

ee a

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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

S

on 4 constructive anenduent to the

7 iy atte aS -

show: Qo thet to,se ete es

a
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, . 3 i —_ td irr a
vs > ‘ : * + e ~
4 a pe te - a 99s — *
_ -- . x 4 ’ 4

els,

s.* 0. *
mt
~ -

[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

was not tried on a charge different ©

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
p
=

Po

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 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,

%
7
:

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,
v.

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.

---

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