Reply Brief — Operation Rescue v. National Organization for Women, Inc.

Nos. 01-1118, 01-1119

JOSEPH SCHEIDLER, ANDREW SCHOLBERG,

TIMOTHY MURPHY, AND THE PRO-LIFE ACTION LEAGUE, INC.,

Petitioners,

v.

NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL.,

Respondents.

OPERATION RESCUE,

Petitioner,

v.

NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Seventh Circuit

REPLY BRIEF OF PETITIONERS JOSEPH

SCHEIDLER, ANDREW SCHOLBERG, TIMOTHY

MURPHY, AND THE PRO-LIFE ACTION LEAGUE, INC.

THOMAS BREJCHA ALAN UNTEREINER*

DEBORAH FISCHER ARNON D. SIEGEL

Thomas More Society KATHRYN S. ZECCA

29 South LaSalle Street SHERRI LYNN WOLSON

Suite 440 Robbins, Russell, Englert,

Chicago, IL 60603 Orseck & Untereiner LLP

(312) 782-1680 1801 K Street, N.W.

Suite 411

D. COLETTE WILSON Washington, D.C. 20006

104 E. Buckthorn Street (202) 775-4500

Inglewood, CA 90301

(310) 672-3104 * Counsel of Record

Counsel for Petitioners

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............... ecnanbens ii

I. THE HOBBS ACT DOES NOT PUNISH EVERY

INTERFERENCE WITH CONTRACTUAL RIGHTS

OR THE RIGHT TO CONTROL PROPERTY ...... 1

A. Respondents’ Definition Of Extortion Is In-

consistent With The Text, Structure, And

Legislative History Of The Hobbs Act ......... 2

B. Respondents’ Definition Departs From The

Traditional Meaning Of Extortion Under

ST CE ‘ennccesvedévesedebenkuatsas 8

C. Respondents Are Wrong To Suggest That

The Judgment Can Be Salvaged ............. 13

II. RICO DOES NOT AUTHORIZE PRIVATE PLAIN-

TIFFS TO SEEK INJUNCTIVE RELIEF ......... 14

GRMMEEEY occccccccdedessssevccvesesveeesos 20

i

TABLE OF AUTHORITIES

Page(s)

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001) .......... 19

Barnes v. Gorman, 122 S. Ct. 2097 (2002) ............ 19

Bell v. Hood, 327 U.S. 678 (1946) .........0cee cece 19

Califano v. Yamasaki, 442 U.S. 682 (1979) ........... 20

Carpenter v. United States, 484 U.S. 19 (1987) ........ 12

Cleveland v. United States, 531 U.S. 12 (2000) ........ 12

College Savings Bank v. Florida Prepaid

Postsecondary Educ. Expense Bd.,

EEE 6 on beeebsbevecvesecccs cee 10

D.R. Wilder Mfg. Co. v. Corn Prods. Refining Co.,

DED wesndesbbareaddecceccece 16, 17

Evans v. United States, 504 U.S. 255 (1992) ......... 3,8

Ford v. Wainwright, 477 U.S. 399 (1986) ...........65. 3

Franklin v. Gwinnett County,

Ns te oi dete eavenecteacesecs 19

Gebser v. Lago Vista Indep. Sch. Dist.,

SPEED wbbbbesscenecocccdeeccctes 19

Great-West Life & Annuity Ins. Co. v. Knudsen,

EE, Sere 12

TABLE OF AUTHORITIES—Continued

Page(s)

Griffin v. United States, 502 U.S. 46 (1991) ........... 14

Grupo Mexicano v. Alliance Bond Fund, Inc.,

SEE ccuscouccoecesoscoceses 16, 20

Holmes v. SIPC, 503 U.S. 258 (1992) .......... 16, 17, 19

In re Fredeman Litig., 843 F.2d 821 (Sth Cir. 1988)... .. 18

Lenev. Pefia, $18 U.S. 187 (1996) ..............005: 20

Maryland v. Baldwin, 112 U.S. 490 (1884) ............ 14

McCormick v. United States, 500 U.S. 257 (1991) ...... 10

Minnesota v. Northern Sec. Co.,

i E -cceccddbecceucessectcesees 16

Northeast Women’s Center, Inc. v. McMonagle,

ee eee 5

Paine Lumber Co. v. Neal,

es Ff ncssetatsasdeese 15, 16, 17

People v. Barondess, 31 N.E. 240 (N.Y. 1892) ......... 11

People v. Cadman, 57 Cal. 562 (1881) ..............4. 9

People v. Spatarella, 34 N.Y .2d 157 (1974) ........... 11

People v. Squillante, 185 N.Y .S.2d 357

oscil 11

People v. Tonielli, 22 P. 678 (Cal. 1889) .............. 9

People v. Vidaver, 112 N.Y.S. 606 (Gen. Sess. 1908) .... 7

People v. Wisch, 296 N.Y .S.2d 882 (Sup. Ct. 1969) ..... il

Reves v. Ernst & Young, 507 U.S. 170 (1993) ...... 18, 19

Sedima, S.P.R.L. v. Imrex Co., |

GO GIS SD 0 csc ccvcesiodeccccesses 16, 19

Smith v. United States, 508 U.S. 223 (1993) ........... 10

Stirone v. United States, 361 U.S. 212 (1960) ......... 4,9

Sunkist Growers, Inc. v. Winckler & Smith Citrus

Prods. Co., 370 U.S. 19 (1962)... 2.6.22 eceeeees 14

Tafflin v. Levitt, 493 U.S. 455 (1990) ...........0005- 16

United States v. Cooper Corp., 312 U.S. 600 (1941) .... 16

United States v. Craft, 122 S. Ct. 1414 (2002) .......... 3

United States v. Enmons, 410 U.S. 396 (1973) ....... 7, 10

United States v. Hudson and Goodwin,

BE ULB. SE CRSEED cc ccccccccccccccscccccccscces 3

United States v. Tropiano,

418 F.2d 1069 (2d Cir. 1969),

cert. denied, 397 U.S. 1021 (1970) ......... sO

Page(s)

United States v. Turkette, 452 U.S. 576 (1981) ......... 19

Yates v. United States, 354 U.S. 298 (1957) ........... 14

Statutes:

RETA Rea eae ag a 14, 15

SSPEARS SETS Se ee ere cee ARTE. 15

RS SET TOT eT ae 20

EIEN eee ee mea 20

I RII... ccnccscccccccccscccese: 20

Ea nD OE 12

IN. i ucushnesacdeuceecs passim

Ta idndeien passim

SETTLES LE OR TRE 3

Federal Anti-Racketeering Act of 1934,

48 § 979, ch. 569 (1934)... 0... e eee eee 1, 13

CAL. PENAL CODE § 518 ............e cece ceeeeeeeee 9

EEE TEE OD 9

EEE odosdoccccéuscecscseccodeus 9

vi

N.Y. PENAL LAW § 851 (1909) ............-0005. 10, 11

Miscellaneous:

91 CONG. REC. 11,906 (1945) ...... 2... c cece ee eeees 13

W. BLACKSTONE, COMMENTARIES (17th ed. 1830) ....... 5

Penner, The “Bundle of Rights” Picture of Property,

43 UCLA L. REV. 711 (1996) .............00000e 4

RESTATEMENT OF PROPERTY (1936) ............22-55- 4

Vandevelde, The New Property of the Nineteenth

Century: The Development of the Modern Concept

of Property, 29 BUFF L. REV. 325 (1980) ......... 4,5

Respondents open their brief with a long jury speech con-

sisting of a highly selective account of disputed evidence

presented at this contentious trial. The assumption underlying

this recitation is that every single bad act over the course of 15

years of anti-abortion protests that was referred to at trial was

perpetrated by a “PLAN member.” Even if that were true (and

it is not), and even if these incidents happened the way respon-

dents portray them (and they did not), the critical point is that

there is no basis whatsoever for concluding that the jury cred-

ited or relied on respondents’ litany.

The jury in this case found that only four “[a}cts or threats

of physical violence” to a “person or property” had occurred.

J.A. 144 (emphasis added). There is no way of knowing, be-

Cause respondents vigorously opposed greater specificity in the

jury’s findings, whether those four unidentified incidents by

unidentified protesters involved acts of violence against people

or only threats of violence against “property” (broadly defined

as “anything of value” (J.A. 136) (emphasis added)). The re-

maining “crimes” that respondents repeatedly cite — which,

according to the jury’s findings, did not involve acts or even

threats of physical violence — consisted of “extortion” as that

offense was sweepingly defined in the jury instructions. In any

event, this case is not about the conflicting evidence presented

at trial; it is about the proper legal definition of extortion under

the Hobbs Act and the availability of injunctive remedies in

dents have nothing persuasive to say.

I. THE HOBBS ACT DOES NOT PUNISH EVERY IN-

TERFERENCE WITH CONTRACTUAL RIGHTS OR

THE RIGHT TO CONTROL PROPERTY

In our opening brief (at 10-18), we explained that the Sev-

enth Circuit’s broad definition of extortion is inconsistent with

the text, structure, and legislative history of the Hobbs Act and

its predecessor, the Federal Anti-Racketeering Act of 1934. In

effect, the lower courts transformed extortion into the far

broader, but less serious, crime of coercion — even though there

2

is clear evidence that Congress, in passing the Hobbs Act, elect-

ed not to punish coercion. See 0-1118 Pet. Br. 23-24, 29-32.

And the Seventh Circuit’s analysis represents a vast departure

from the settled meaning of a term of art — the “obtaining of

property from another” — contained in the Field Code of 1865

and carried forward in the New York extortion statutes on

which the Hobbs Act was modeled. See id. at 18-28.

Strikingly, respondents make no effort to defend the actual

holding of the Seventh Circuit or the language of the jury in-

structions. Instead, respondents have come up with new

definitions: the “property” of the clinics — defined as the “right

* * * to provide medical services” in the jury instructions (J.A.

136) and the “right to conduct a business” in the Seventh Cir-

cuit’s opinion (01-1118 Pet. App. 29a) — has now been trans-

formed into a right to “direct the use and disposition” of “the

tangible physical assets of a clinic.” Resp. Br. 10. The “prop-

erty” of the putative patients — defined as “a woman’s right to

seek services from a clinic” in both the instructions and the

opinion — now makes its debut as a right “to the benefits

of * * * fee-for-service contracts with medical providers.” Jd.

at 12. And the concept of “obtaining” — defined as causing

someone to “give up” a “property right” in the instructions and

even more broadly in the Seventh Circuit’s opinion as any “loss

to, or interference with the rights of, the victim” — has now been

repackaged as wresting “control over the use and disposition of

an asset.” Resp. Br. 24. As we explain below, respondents’

newly minted formulations — which cannot salvage a judgment

predicated on different legal definitions — are erroneous.

A. Respondents’ Definition Of Extortion Is Inconsistent

With The Text, Structure, And Legislative History Of

The Hobbs Act

Respondents argue (at 12) that petitioners committed extor-

tion by “overrid{ing] the clinics’ lawful decisions about use of

sonnel, and the patients’ rights to the benefits of their fee-for-

service contracts with medical providers.” This argument pro-

ceeds in three steps. First, respondents equate “property” with

3

“property rights” by resorting to the modern analogy of prop-

erty as a “bundle of sticks.” See Resp. Br. 14-18; see also U.S.

Br. 16-17 (arguing that “the right to control and use property is

itself property”) (emphasis added). Relatedly, respondents also

say that all “rights created by contract” are “property.” Resp.

Br. 16. Second, respondents contend (invoking Blackstone)

that the right to exclusive “control” over the “use, enjoyment,

or disposal” of property is “[a}t the center of the bundle.” /d. at

16, 17, 19; see also U.S. Br. 16, 18-19. And third, they argue

that preventing someone else from exercising this right to

control (or a contractual right) is tantamount to “obtaining” that

right. Resp. Br. 24-29. This argument is flawed at every turn.

1. a. To begin with, “property” within the meaning of the

Hobbs Act is simply not the same as any “right” or “interest” in

property. As explained in our opening brief (at 13-14), Con-

gress knows how to reach deprivations of, or interference with,

“property rights” but has not done so in the Hobbs Act. Indeed,

certain of the cases cited by respondents expressly distinguish

between “property” and a “right in property,” the very distinc-

tion respondents deny.’

Equally important, respondents’ use of the “bundle of

sticks” paradigm is fundamentally anachronistic. It was not

until 1913 and 1917 that Wesley Hohfeld published his seminal

' E.g., United States v. Craft, 122 8. Ct. 1414, 1422 (2002). Most of the

“property” cases cited by respondent (at 14-17) and the government (at 15-

16) address the meaning of that term in federal tax law or under the Takings

or Due Process Clauses of the Constitution. Of course, where the

government’s taxation power is concerned, property is given its broadest

possible meaning. See Craft, 122 S. Ct. at 1422-23. And, when interpreting

the scope of constitutional rights, the Court’s jurisprudence has been known

to “evolve{].” Ford v. Wainwright, 477 U.S. 399, 405 (1986). But where a

federal crime is involved, the federal courts are not free to implement their

own “evolving” concepts of “property.” See United States v. Hudson and

Goodwin, 11 U.S. 32, 33 (1812) (no federal common law of crimes). And

where Congress has incorporated common law concepts or terms of art in a

criminal statute — such as “extortion” and “obtaining of property from

another” — courts must give those terms their traditional meaning. See Evans

v. United States, 504 U.S. 255, 264 (1992).

4

articles reconceptualizing property as a “complex aggregate of

rights, privileges, powers, and immunities against other

persons” (Vandevelde, The New Property of the Nineteenth

Century: The Development of the Modern Concept of Property,

29 BuFF. L. REV. 325, 361 (1980)) — a conception later adopted

in the RESTATEMENT OF PROPERTY (1936). The models used by

Congress for the Hobbs Act — the Field Code of 1865 and the

New York Penal Codes of 1881 and 1909 — all predate these

developments. These models therefore cannot be analyzed

using the “bundle of sticks” metaphor, which is predicated on

Hohfeld’s theory. See Penner, The “Bundle of Rights” Picture

of Property, 43 UCLA L. REV. 711, 712-14 (1996).

Respondents insist (at 13), however, that “property” must

be treated as a “deliberately inclusive” term, citing Stirone v.

United States, 361 U.S. 212 (1960). But this Court’s recogni-

tion in Stirone of the Hobbs Act’s “broad language” (id. at 215)

was a specific reference to the Act’s coverage of robberies and

extortions that “in any way or degree” (18 U.S.C. § 1951(a))

interfere with interstate commerce. See 361 U.S. at 215. Con-

trary to respondents’ suggestion (at 13), Stirone does not hold

that every word in the Hobbs Act is to be broadly construed (an

approach that would violate the rule of lenity). In fact, as we

demonstrate in our opening brief (at 31-32), the legislative his-

tory shows that Congress intended to limit “extortion” to its

traditional definition under New York law — a limitation re-

garded as necessary to protect the rights of labor.

Respondents also maintain (at 15 n.16) that “property”

includes the patients’ contractual right to “exchange money for

medical services.” There was of course no showing below (or

any requirement of a showing) that the members of the patient

class had any such “contracts.” As we explained in our opening

brief (at 25-26), the notion that contract rights are “property”

under the Hobbs Act is contrary to New York law. See also id.

at 16-17.? Equally important, if accepted it would convert the

? Respondents’ authority for the proposition that “property” under the Hobbs

Act includes contract rights (see Resp. Br. 16 n.17) includes only one Hobbs

5

state-law torts of interference with contractual relations and

prospective advantage into federal crimes under the Hobbs Act.’

b. Next, respondents selectively invoke Blackstone for the

proposition that the right to “control” over the “use, enjoyment,

or disposal” of property is “[a]t the center of the bundle.” Resp.

Br. 16. Because Blackstone’s concept of property was limited

to physical things, however, respondents would necessarily lose

this case if the Hobbs Act embodies Blackstone’s general defi-

nition of property.* And, of course, respondents ignore Black-

stone’s more specific discussion of the narrower concept of

“property” in criminal law, including under the crime of extor-

tion. See 4 W. BLACKSTONE, COMMENTARIES 141 (17th ed.

1830) (extortion requires obtaining of “any money or thing of

value”) (emphasis added).

c. Even if one accepts the premise that the right to

exclusive control of property and contract rights are “property,”

there is no basis for concluding that petitioners obtained from

the respondent clinics (or the patients) the right to “control the

use” of clinic assets (or the contractual right to purchase ser-

vices). At most, respondents interfered with the clinics’ right

Act decision, Northeast Women’s Center, Inc. v. McMonagle, 868 F.2d 1342,

1350 & n.8 (3d Cir. 1989), another abortion protest case that discussed this

issue only in passing and cited no authority. Respondents also cite (at 16

n.17) a Second Circuit case involving mail fraud, but they neglect to cite this

Court’s contrary decision in Carpenter. See 01-1118 Pet. Br. 16-17.

* The Solicitor General pointedly refrains from addressing the “property”

theories charged to the jury relating to the interests of the physicians and

patients (as opposed to the clinics). See U.S. Br. 15 n.6. The lower court’s

opinion, however, specifically identifies all three theories of extortion and

rejects petitioners’ challenge to all three, explair.ing that the Seventh Circuit

had previously held that “intangible property such as the right to conduct a

business” is “property.” 01-1118 Pet. App. 29a (emphasis added).

* Blackstone defined property as the “sole and despotic dominion which one

man claims and exercises over the external things of the world, in total

exclusion of the right of any other individual in the universe.” 2 W.

BLACKSTONE, COMMENTARIES 2 (17th ed. 1830) (emphasis added); see also

Vandevelde, 29 BuFF. L. REV. at 330-33 (discussing “physicalist” and

“absolutist” features of Blackstone’s general theory of property).

6

‘

of control or temporarily thwarted its exercise (during the pen-

dency of the sit-ins). Nor did petitioners obtain the patients’

alleged contractual rights. Of course, petitioners do not have

these rights today (which is rather difficult to square with re-

spondents’ suggestion that petitioners have “obtained” them).

To suggest that an interference of this kind is tantamount to

“obtaining” obliterates the distinction between those concepts.

2. Respondents downplay several important aspects of the

Hobbs Act that highlight the broad reach and ramifications of

their proposed definition of extortion.

First, respondents (and their amici) largely ignore the fact

that extortion under the Hobbs Aci extends to the wrongful

“obtaining of property from another” by inducing the victim to

consent not only though “force” or “violence” but also through

“fear” — a broad term that, under the jury charge, included “fear

of wrongful economic injury.” J.A. 136 (emphasis added).’ For

all we know, the jury’s determination that petitioners committed

extortion relied on a finding that their sit-ins and political pro-

tests had engendered a fear of “wrongful economic injury.”

As Operation Rescue explained in its opening brief (at 43-

44), it is doubtful that Congress intended to criminalize sit-ins

and other political protests as extortion when it used the phrase

“force, violence, or fear.” It is certainly possible to read that

phrase as including only physical force, violence, and fear of

either physical force or violence. But as noted in our opening

brief (at 22 n.16), New York extortion law defines “fear” in

sweeping fashion to include fear of adverse economic conse-

quences in a very broad sense.° The Court’s analysis of the

* Respondents go so far as to rewrite the question presented to omit the word

“fear.” See Resp. Br. i (referring to use of “violence and threats of violence”).

* Congress, of course, did not incorporate into the Hobbs Act the broad

definition of “fear” contained in the New York statute (see 01-1118 Pet. Br.

3a). But that broad concept has been accepted by many federal courts, see

Rutherford Amicus Br. 13-17, and was reflected in the jury instructions in this

case. If “force, violence or fear” is limited to physical force, violence, and

fear of either physical force or violence, then the Hobbs Act instructions in

7

remainder of the definition of extortion must take this feature

into account.’ Thus, if the Solicitor General is correct that caus-

ing a “business to cede control over what goods or services [it]

will offer” (U.S. Br. 24) qualifies as the “obtaining of property

from another,” then doing so by engendering a reasonable fear

of economic harm is now punishable by 20 years in prison.

Second, respondents do their best to ignore the serious fed-

eralism implications of their position for the closely related

crime of official extortion. Both crimes prohibit the “obtaining

of property from another,” and neither respondents nor the gov-

ernment suggests that this language carries a different meaning

under the two offenses. See U.S. Br. 20 (admitting that prose-

cutions for official extortion “typically involved the receipt of

money”).* But if respondents’ interpretation of the Hobbs Act

is correct, then official extortion would be expanded to cover

any interference with the “control over the use and disposition

of an asset” (Resp. Br. 24) done under color of official right.

This would bring within the ambit of the Hobbs Act a vast array

of official conduct that has traditionally fallen outside the pur-

view of official extortion. See Alabama Amicus Br. 10-12.

this case were erroneous and the judgment must be reversed.

’ The government insists (at 24) that extortion can be committed even if the

defendant does not have “a profit-making objective.” At common law,

however, the intent to wrongfully acquire the victim’s property, known as

animus furandi, was an indispensable element of all theft crimes, including

extortion. See People v. Vidaver, 112 N.Y.S. 606, 606 (Gen. Sess. 1908)

(indictment charging attempted extortion must include allegation of threat

“made with intent to wrongfully obtain property from the [victim]”); United

States v. Enmons, 410 U.S. 396, 406 n.16 (1973) (“[E}xtortion requires an

intent to obtain that which * * * the party is not entitled to receive.”) (internal

quotation omitted); see also U.S. Br. 29 n.16 (conceding that “intent to steal”

is an essential element of robbery).

* The government notes (at 21) that in passing the Hobbs Act, Congress

expanded the common law definition of extortion to include acts by private

individuals. It does not follow, however, that Congress intended to expand

the definition of “property” in both official and private extortion. U.S. Br.

21. As explained in our opening brief (at 18-19, 28-32), the legislative

history of the Hobbs Act shows otherwise.

8

3. As we showed in our opening brief (at 28-32), Con-

gress, in passing the Hobbs Act and the 1934 Act, intended to

exclude conduct that would constitute the separate, and much

less serious, crime of coercion. Congress had before it the New

York definitions of both extortion and coercion when it consid-

ered both pieces of legislation, and was acutely aware of the

difference between the two offenses. 01-1118 Pet. Br. 29-31 &

n.23. Respondents’ broad reading of extortion subsumes con-

duct that New York law punished only as coercion in 1946, in

direct contravention of Congress’s intent.

Respondents have nothing persuasive to say in response.

They first suggest, inconsistently, that (1) “extortion is simply

a subset of coercion that involves property” and (2) “coercion

is a lesser included offense” of extortion. Br. 26 n.32. In fact,

the crimes are distinct (see 01-1118 Pet. Br. 2a-3a); it is only

respondents’ sweeping definition of “the obtaining of property

from another” that threatens to collapse the two crimes into one.

Next, respondents (at 26 n.32) point to this Court’s shorthand

reference to “coercive extortion” in Evans. But we do not dis-

pute that non-public extortion involves the use of wrongful

compulsion (or coercive means) by the perpetrator. It does not

follow, however, that the crime of coercion and the crime of

extortion are the same (or even substantially overlapping).

B. Respondents’ Definition Departs From The Traditional

Meaning Of Extortion Under New York Law

Respondents acknowledge that Congress modeled the

Hobbs Act after the New York Penal Codes of 1881 and 1909.

Resp. Br. 18; accord U.S. Br. 17. This is fatal to their argument.

1. As explained in our opening brief (at 19-23), the Field

Code of 1865 — and the New York Penal Codes of 1881 and

1909 that adopted and carried forward the Field Code’s defini-

tion of “extortion” — meant something quite specific and limited

when they referred to the “obtaining of property from another.”

Every extortion case we have found in New York or other juris-

dictions prior to the Field Code’s publication (and every case

cited in the cross-referenced notes to the larceny provision)

involved a defendant who actually acquired from the victim

9

“property” in a very narrow sense. The same is true of every

reported extortion case decided between 1865 and 1946, when

the Hobbs Act was passed, not only in New York (see 01-1118

Pet. Br. 24) but also in the 10 other States that modeled their

extortion statutes after the Field Code. See 01-1118 Pet. Br. 27

n.21.’ In addition, every reported federal case brought under

the 1934 Act — which also punished the “obtain[ing of] the

property of another” — involved an extortionist who sought

money from a victim. Jd. at 31 n.24.

Not until 1969 — more than a century after the Field Code

and almost a quarter century after the Hobbs Act — did the New

York and lower federal courts embark on a judicial expansion

of the term of art “the obtaining of property from another.” See

01-1118 Pet. Br. 26 n.20 (citing New York cases). The first

ederal decision to do so of which we are aware, United States

v. Tropiano, 418 F.2d 1069, 1075-76 (2d Cir. 1969), cert. de-

nied, 397 U.S. 1021 (1970), which is the fountainhead of all the

later federal decisions, held that the “right to pursue a lawful

business” and “to solicit customers” is “property” that can be

obtained under the Hobbs Act. In reaching that result despite

a “serious[{] challenge[]” raised by the defendant (418 F.2d at

1069), the Second Circuit relied on three grounds: (1) the same

misreading of Stirone advanced by respondents in this Court

(see page 4, supra); (2) an uncritical reliance on prior Hobbs

Act cases that had interpreted the distinct concept of “fear” (see

page 10, infra); and (3) federal due process decisions recogniz-

ing a broad concept of “property.” Jd. at 1075-76.

Notably, the third basis for the decision in Tropiano has

* Contrary to respondents’ contention (at 21), People v. Cadman, 57 Cal. 562

(1881), did not “hold” that “the intangible right to pursue an appeal is

property.” As we noted in our opening brief (at 27 n.21), the California

Supreme Court there simply “assum{[ed]” for the purposes of the appeal that

such a right might qualify as “property.” 57 Cal. at 564. In addition,

Cadman did not construe California’s extortion statute modeled after the

Field Code, CAL. PENAL CODE § 518, but rather Sections 519 and 523, which

separately punished the sending of threatening letters. 57 Cal. at 563; see

also People v. Tonielli, 22 P. 678, 679 (Cal. 1889).

10

been invalidated by this Court’s decision College Savings Bank

v. Florida Prepaid Postsecondary Education Expense Board,

527 U.S. 666 (1999). There, the Court observed that while

“t]he assets of a business (including its goodwill) unquestion-

ably are property[,] * * * business in the sense of the activity of

doing business, or the activity of making a profit is not property

in the ordinary sense.” Jd. at 675 (emphasis in original); see

also id. at 674 (although the right to acquire property by honest

labor and right to conduct a lawful business are to be treated as

property in courts of equity, they are not property). Thus, it is

far from clear that Tropiano remains good law."°

In any event, neither respondents nor the government ex-

plains why, if “the obtaining of property from another” means

what they say it means, it took more than a century for federal

and state prosecutors to discover that. “It is unlikely that if

Congress had indeed wrought such a major expansion of federal

criminal jurisdiction in enacting the Hobbs Acct, its action would

have so long passed unobserved.” United States v. Enmons,

410 U.S. 396, 410(1973); see also McCormick v. United States,

500 U.S. 257, 277 (1991) (Scalia, J., concurring).

Respondents and the government contend, however, that

New York law did recognize a broader concept of “property”

that was relevant to the crime of extortion. Resp. Br. 19-20 &

n.23; U.S. Br. 17-18. But all of the cases they cite either were

decided decades after the Hobbs Act was passed, or are distin-

guishable because they discuss the types of threatened

“injur[ies]” to “person or property” that will give rise to “fear”

within the meaning of N.Y. PENAL LAw § 851 (1909). The

latter cases construe the word “property” in a very different

context, however, as a close examination of Section 851 makes

clear. See 01-1118 Pet. Br. 3a (setting out entire text of Section

851); see also Smith v. United States, 508 U.S. 223, 229 (1993)

'© No doubt because he recognizes this problem, the Solicitor General now

attempts to recast Tropiano as involving “the exclusive right to control the

conduct of [a] business’s operations” rather than what the Second Circuit said

it involved: the right “te pursue a lawful business” and “to solicit customers”

(418 F.2d at 1076). See U.S. Br. 23; compare id. at 19.

11

(explaining that “(t]he meaning of a word” in a statute must be

“analyzed in light of the terms that surround it”).

Given the broad sweep of Section 851, which defines

“fear” expansively to include any threat of exposure of a secret

or some type of “disgrace,” it would have been difficult to con-

clude that the New York legislature intended to limit the “per-

son or property” that can be threatened with injury to those

forms of property traditionally protected against wrongful

acquisition. See People v. Barondess, 31 N.E. 240, 242 (N.Y.

1892) (explaining that “the section [i.e., Section 851] has not

employed the term in that manner”). Why would the legislature

have intended to punish compelling a business owner to make

a pay-off induced by a threat to reveal a secret but not a threat

to shut down the business through a work stoppage? In either

case, a pay-off was extorted by a wrongful inducement. Thus,

the government is quite wrong in suggesting (at 18) that there

was “no basis” for interpreting the word “property” in Section

850 differently from “person or property.” Indeed, one New

York court found such a basis. See People v. Squillante, 185

N.Y.S.2d 357, 361 (Sup. Ct. 1959)."'

Moreover, the government’s contention that “property”

must have the same meaning everywhere it appears in a statute

undermines its own reading of the Hobbs Act. Section 1951(a)

punishes not only acts of “extortion” and “robbery” (and at-

tempts and conspiracies to commit those offenses) but also acts

or threats of “physical violence to any person or property in

furtherance of a plan or purpose to do anything in violation of

this section.” 18 U.S.C. § 1951(a) (emphasis added). As used

'' Respondents (at 20 n.23) unfairly disparage Squillante, an opinion written

by Justice Bernard S. Meyer (who went on to serve on the New York Court

of Appeals in 1979-1986), as involving “tortured reasoning.” Respondents

(at 19-23 & n.23) and the government (at 18-19) rely heavily on People v.

Spatarella, 34 N.Y .2d 157 (1974). But in that case, and in People v. Wisch,

296 N. Y.S.2d 882, 886 (Sup. Ct. 1969), New York courts — construing a later

penal code enacted in 1965 — relied on the older cases involving the meaning

of “fear” as defined in N.Y. PENAL Law § 851 (1%/9), and did so without

offering any analysis of Section 851 and without even citing Squillante.

12

in this residual clause of the Hobbs Act, “property” plainly con-

notes something tangible, since intangible property cannot be

the subject of “physical violence.” Thus, if this Court were to

apply the government’s canon of construction, the govern-

ment’s interpretation of the Hobbs Act (and respondents’)

would have to be rejected.”

2. Next, respondents say (at 13) that we fail to offer a

“coherent theory of what property” includes. They are mis-

taken. To begin with, the historical definition we derive from

the New York case law — “money, tangible things of value, or

notes, bills, or other written documents entitling the holder to

money or other tangible property” (Br. 19) — is hardly indeter-

minate. The fact that this definition does not feature a bright

conceptual line (as between real and personal property) is a

function of the common-law development of property-law

crimes, which proceeded incrementally by expanding the

protections of the criminal law to new forms of property. This

Court has not hesitated to require the lower courts to engage in

a historical inquiry of this kind where one is warranted. See

Great-West Life & Annuity Ins. Co. v. Knudsen, 122 S. Ct. 708,

716-17 (2002). In the alternative, we also offer several defini-

tions that draw upon limits recognized in New Y ork law and ex-

pressed in the language of the Hobbs Act, such as the require-

ment that “property” at least be something that is wansferable

(and capable of being “obtained”). See 01-1118 Pet. Br. 14, 24-

26. Respondents’ attempt (at 17-18 & n.20) to counter that

argument by citing non-New York cases and academic com-

mentary that are far afield is wholly unpersuasive.

3. Respondents say (at 12) that our historical reading of the

2 As we noted in our opening brief (at 16-17, 34 n.27), the mail fraud statute

reaches a larger category of “property” than does the Hobbs Act. The mail

fraud statute refers to “any scheme or artifice to defraud, or for obtaining

money or property” (18 U.S.C. § 1341 (emphasis added)). The latter phrase

— which was added in an amendment — was intended to mirror the reach of

the “scheme or artifice to defraud” language, which is far broader than the

language of the Hobbs Act. See Cleveland v. United States, 531 U.S. 12, 19

(2000); Carpenter v. United States, 484 U.S. 19, 27 (1987).

13

Hobbs Act is “too circumscribed to achieve its obvious pur-

poses,” but as we have demonstrated (at 28, 30-31), Congress’s

purpose in enacting the Anti-Racketeering Act of 1934 and the

Hobbs Act was in fact relatively narrow: to bring a halt to the

“rackets” that were being used by gangsters and organized

crime to extract payments and other “tribute” from businesses."

4. Respondents warn (at 12-13) that if our reading of the

Hobbs Act is accepted, “terrorists” who committed other state

or federal crimes (such as conspiracy to kidnap, assault, crimi-

nal coercion) would no longer be punishable under Section

1951. The text and legislative history of the Hobbs Act make

clear, however, that Congress never intended the statute to be

the panacea respondents suggest. And, of course, there is noth-

ing to prevent Congress from amending the Hobbs Act (or cre-

ating new crimes) if it wishes to add yet another layer of crimi-

nal proscriptions to those that already exist under other federal

and state criminal laws.'*

C. Respondents Are Wrong To Suggest That The Judg-

ment Can Be Salvaged

As we have noted (01-1118 Pet. Br. 17 n.12), it is impossi-

ble to determine which predicate acts formed the basis for the

'? Despite their condemnation elsewhere of “foray(s] into legislative history”

(Resp. Br. 43), respondents seize upon a reference made by a Member of

Congress to the “night-riders” of Kentucky (id. at 18). The point of this

statement, however, was that “crimes” such as “murder, rape, kidnaping,

arson, theft, * * * robbery and extortion” are “not confined to racketeers in

the labor movement.” 91 CONG. REC. 11,906 (1945) (emphasis added).

Nothing in this passing remark detracts from our showing (Br. 32 n.25) that

the examples of extortion used throughout the legislative debates reflect the

historical definition set forth in our opening brief.

‘* Similarly, Amici Former Federal Prosecutors et ai. insist (at 21) that our

reading of the Hobbs Act would have “grave implications for federal law

enforcement” because it would “decriminalize” conduct that Congress has

proscribed in eight other sections of Title 18. But only one of the cited

statutes contains language similar to that of the Hobbs Act. See 18 U.S.C. §

2113({a). Nor have amici shown that Congress, in passing these other

provisions, similarly drew upon New Yoi< extortion law circa 1946, which

in turn borrowed its core concepts from the 1865 Field Code.

14

jury’s RICO verdict, or for its determination of damages. It is

possible, therefore, that the verdict was based on Hobbs Act

violations that, as a matter of law, were not violations at all.

Under this Court’s well-settled precedent, the judgment must

therefore be vacated. See Maryland v. Baldwin, 112 U.S. 490,

493 (1884); Sunkist Growers, Inc. v. Winckler & Smith Citrus

Prods. Co., 370 U.S. 19, 29-30 (1962). Notably, this principle

necessitates a reversal of the entire verdict if any of the three

theories of extortion charged to the jury was legally defective.

maintain otherwise, contending that “the

jury’s verdict would stand” (Br. 34) even if this Court deter-

mines that petitioners did not violate the Hobbs Act because the

jury found that petitioners committed other predicate acts. In

Griffin v. United States, 502 U.S. 46 (1991), this Court

“affirmed a general verdict even though it may have rested on

a prong of the instruction as to which the evidence was insuffi-

cient.” Resp. Br. 35 n.46 (emphasis added). But Griffin also

reaffirmed the rule of Yates v. United States, 354 U.S. 298

(1957), which held that a general verdict that might have rested

on legal error — and not insufficiency of the evidence — must be

vacated. See Griffin, 502 U.S. at 56, 58-59. None of the lower

court cases cited by respondents (at 34) is to the contrary. Ata

minimum, then, the judgment must be vacated.

Il. RICO DOES NOT AUTHORIZE PRIVATE PLAIN-

TIFFS TO SEEK INJUNCTIVE RELIEF

1. The Antitrust Models for Section 1964(c). Respondents

do not deny what this Court has repeatedly recognized: Section

1964(c) was modeled on Section 4 of the Clayton Act, which in

turn was modeled on Section 7 of the Sherman Act. 01-1118

Pet. Br. 37-38. Nor do they dispute that the relevant language

of these three provisions is in every material respect identical.

These antitrust models were clearly understood, when RICO

was enacted, as not authorizing private injunctive relief.

Respondents nevertheless contend that the same language

carries a different meaning in Section 1964(c) because of differ-

ences between the language of Section 1964(a) of RICO and the

corresponding jurisdictional provisions of the Sherman Act (15

15

U.S.C. § 4) and the Clayton Act (15 U.S.C. § 25). See Resp. Br.

41-43. Specifically, respondents note that, whereas each of the

antitrust provisions contains two components separated by a

semicolon (the first vesting equitable jurisdiction in the district

courts; the second authorizing the United States to “institute

proceedings * * * to prevent and restrain * * * violations”),

Congress elected in RICO to put those components into sepa-

rate subsections (§§ 1964(a) and (b)). Although they describe

this as a “key structural difference[]” (Resp. Br. 41), respon-

dents identify no reason why the choice of a semicolon over a

separate subsection heading should qualify as such, and it is

difficult to imagine why it should. Accord U.S. Br. 11.

Respondents also make much of the fact that the Sherman

and Clayton Act provisions state that “it shall be the duty” of

the Attorney General to “institute proceedings in equity to pre-

vent and restrain” violations (15 U.S.C. § 25(a) (emphasis

added)), whereas Section 1964(b) states that the Attorney Gen-

eral “may institute proceedings under this section.” 18 U.S.C.

_ § 1964(b) (emphasis added). See Resp. Br. 42-43. But there is

no real difference between those formulations; in both cases,

the Attorney General is given the discretion (“duty”) to institute

injunctive proceedings if he chooses. Moreover, any conceiv-

able difference in the Attorney General’s enforcement discre-

tion would shed no light on the very different question whether

private parties are authorized to seek injunctive relief.

Nor have respondents accurately disputed our submission

that, at the time RICO was enacted, this Court’s decisions had

clearly established that private injunctive relief was not autho-

rized under the precursor Sherman Act provisions. Indeed,

Paine Lumber Co. v. Neal, 244 U.S. 459 (1917), which respon-

dents misread, see 01-1119 Merits Reply Br. 6-7, was decided

over a dissent arguing — as respondents argue here — that “in the

absence of some provision to the contrary, the right to relief by

injunction * * * rests upon settled principles of equity.” 244

U.S. at 473. Notably, respondents make no effort to explain the

many other decisions of this Court identified by the Solicitor

General (at 10 & n.4) that applied the holding of Paine Lumber.

16

Respondents fare no better in seeking to distinguish Paine

Lumber on the ground that it predated “the merger of law and

equity” in 1938. Resp. Br. 42; see also Motorola Amicus Br.

17-18. This Court has repeatedly reaffirmed the holding of that

case — including post-merger. See United States v. Cooper

Corp., 312 U.S. 600, 608 & n.9 (1941). In any event, the

merger of law and equity “did not alter substantive rights.”

Grupo Mexicano v. Alliance Bond Fund, Inc., 527 U.S. 308,

322 (1999). It merely removed one (purely procedural) reason

why Congress might have chosen to discuss equitable and legal

remedies separately; it did not remove other, non-procedural

reasons, such as the policy rationales animating Congress’s

decision to assign to the federal government the exclusive au-

thority to seek injunctive relief under the Sherman Act (and

RICO). See Minnesota v. Northern Securities, 194 U.S. 48,

70-71 (1904); D.R. Wilder Mfg. Co. v. Corn Prods. Refining

Co., 236 U.S. 165, 175-76 (1915); U.S. Br. 14-15.

Respondents point out that this Court occasionally has

“rejected the antitrust analogy when analyzing RICO.” Br. 43

(citing Tafflin v. Levitt, 493 U.S. 455 (1990), and Sedima,

S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985)). Those cases, how-

ever, are exceptions to the rule. See 01-1118 Pet. Br. 39. In

Sedima, which relied on the antitrust analogy in resolving one

issue but not another (473 U.S. at 489-90), there was strong

evidence in RICO’s legislative history that Congress “sought to

avoid” problems that would arise if the specialized “body of

precedent” dealing with antitrust standing were imported into

RICO in the form of an analogous “racketeering injury”

requirement. 473 U.S. at 498-99. In Tafflin, this Court ruled

that its traditional, exacting standard for overcoming the pre-

sumption in favor of concurrent jurisdiction could not be satis-

fied by “the Clayton analogy” alone. 493 U.S. at 459-63.

Here, in contrast, reliance on the antitrust analogy is partic-

ularly fitting: the availability of private injunctive relief under

RICO hinges on the meaning of text in Section 1964(c) that is

in every material respect identical to the Clayton and Sherman

Act provisions from which it was drawn. See Holmes v. SIPC,

17

503 U.S. 258, 268 (1992)."°

2. Other Arguments Based on RICO’s Text and Structure.

Respondents seek to overcome the inference based on the

antitrust models by contending (at 37) that Section 1964(a) “un-

ambiguously” confers on district courts broad equitable

jurisdiction. But that hardly answers the critical question of

who may properly invoke the district court’s equitable powers.

That question is answered by 18 U.S.C. § 1964(b) (emphasis

added): “The Attorney General may institute proceedings under

this section.” Contrary to respondents’ suggestion, Section

1964(b)’s unqualified authorization of actions by the govern-

ment — which respondents quote only selectively (Resp. Br. 38)

— is simply not equivalent to Section 1964(c)’s far more limited

authorization of private litigants who can demonstrate an

“injur[y]” to their “business or property” to “sue therefor” and

recover the specified remedies of treble damages and costs.

Next, respondents emphasize that Section 1964 nowhere

expressly “precludes injunctive relief to private parties.” Br.

37; see also id. at 39. But this Court has never imposed such an

onerous and absurd drafting obligation on Congress, nor should

it here. In fact, this Court rejected this very argument in inter-

preting the language of the Sherman Act on which civil RICO

was modeled. See U.S. Br. 10-11 & n.5. In D.R. Wilder Mfg.

Co., the Court acknowledged that “there are no words of ex-

press exclusion” in the Sherman Act barring individuals from

“act[{ing] in the enforcement of the statute,” but concluded that

“such exclusion must be implied * * * because of the familiar

doctrine that where a statute * * * gives a new right and de-

clares the remedy, the * * * remedy can be only that which the

Statute prescribes.” 236 U.S. at 174-75 (internal quotations

omitted). The Court reaffirmed that principle in Paine Lumber.

See 244 U.S. at 470-71.

'* We did not “concede that private injunctions were available” in our “1993

brief to this Court.” Resp. Br. 44 0.55. All we said is that the “civil

remedies” provided under Section 1964 “include injunctions.” That is beyond

dispute: Section 1964 authorizes the government to seek injunctive relief.

18

Finally, respondents assert that Congress “combined the

language” from “§ 4, * * * § 15, * * * and § 16°’ of the Clayton

Act “into a single section, § 1964.” Resp. Br. 43 n.54 (empha-

sis added). But there is no trace in Section 1964 of the

“language” of Section 16 (which expressly authorizes private

injunctive relief under the Clayton Act). Congress rejected

repeated proposals to add a provision like Section 16 to civil

RICO. See 01-1118 Pet. Br. 38, 41, 45-47.

3. The Legislative History. Multiple proposals were pre-

sented to both the House and the Senate — during RICO’s con-

sideration and in succeeding Congresses — that would have ex-

pressly authorized private injunctive relief. See 01-1118 Pet.

Br. 45-48; 01-1119 Pet. Br. 15-18 & n.16; U.S. Br. 12-13. Re-

spondents take issue with the idea that Congress “rejected”

these proposals. While it is true that (except for the Senate’s

vote in 1972) the House and Senate never took formal votes on

these proposed amendments, it cannot be disputed that the op-

tion of authorizing private injunctive relief was presented again

and again in House and Senate committees as well as on the

floor, and that both chambers ultimately chose a competing

alternative. 01-1118 Pet. Br. 45-46. Under this Court’s cases,

that is significant. Jd. at 48 (citing cases).

Respondents also dispute the significance of our showing

that Section 1964(c) was “a branch grafted onto the already-

completed trunk of the statute.” Jn re Fredeman Litig., 843

F.2d 821, 829 (Sth Cir. 1988). But we are not suggesting that

Section 1964(c) must “be read in a vacuum, as if § 1964(a)

were not part of the statute.” Resp. Br. 46. What we are saying

is that Section 1964(c)’s origin as an add-on provision refutes

the Seventh Circuit’s premise that Section 1964(c) bears exactly

the same relationship to Section 1964(a) as does Section

1964(b). See 01-1118 Pet. Br. 43-44. That flawed premise also

disregards the fact that subsections (a) and (b) originated in a

single provision of the Sherman and Clayton Acts.

4. The Liberal Construction Clause and Inherent Powers.

According to respondents (at 40-41), this Court in Reves v.

Ernst & Young, 507 U.S. 170 (1993), pointed to RICO’s liberal

19

construction clause and underscored “the importance of broadly

construing RICO’s remedies section.” Like the Seventh Cir-

cuit (01-1118 Pet. App. 10a), however, respondents selectively

quote from Reves, which rejected an argument based on the

clause. Respondents also omit this Court’s statement that the

“purposes Congress had in mind * * * must be gleaned from

[RICO] through the normal means of interpretation.” 507 U.S.

at 183-84 (emphasis added); see also Holmes, 503 U.S. at 274."

Equally meritless is respondents’ invocation (Br. 38-39) of

federal courts’ “inherent powers” as a reason to disregard the

strong evidence that Congress never intended to authorize pri-

vate injunctive relief. The principle underlying Bell v. Hood,

327 U.S. 678 (1946), is limited to compensatory relief for plain-

tiffs who otherwise would be left without any remedy. See

Barnes v. Gorman, 122 S. Ct. 2097, 2130 (2002).'’ Nor is

Franklin v. Gwinnett County, 503 U.S. 60 (1992), of help to

respondents. Franklin, like Bell, deals with remedial questions

in the context of a right of action that has been implied by the

judiciary (and in any event it authorizes judicial recognition of

“appropriate” remedies only, see 503 U.S. at 73). In RICO, by

contrast, Congress has (1) expressly created a private right of

action under Section 1964(c); (2) specified the remedies that are

available in such an action; and (3) authorized the government

'* In addition to Reves, respondents cite six of this Court’s cases in support

of their argument based on the liberal construction clause. Br. 40 & n.52.

But only two of those cases even mention the liberal construction clause —

and neither supports respordents’ position. In United States v. Turkette, 452

U.S. 576, 587 (1981), the Court stated that it would have reached the same

conclusion “[w]ith or without” the clause. And in Sedima, S.P.R.L. v. Imrex

Co., 473 U.S. 479 (1985), the Court cited the -»se only after it had

determined that there was “no room in the ~taw.ory language for an

additional, amorphous ‘racketeering injury’ req.a ‘ment.” /d. at 495.

"’ Respondents attempt (Br. 39-40 n.51) to distinguish Alexander v.

Sandoval, 532 U.S. 275 (2001), on the ground that it involved the “right to

sue,” not remedial issues. The argument overlooks this Court’s teaching that

the “statutory structure” is “pertinent not only to the scope of the implied

right, but also to the scope of the available remedies.” Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 284 (1998).

20

to institute other proceedings in whic’. different remedies are

available. See Lane v. Pefia, 518 U.S. 187, 197 (1996)

(presence of express remedies provision “brings this case out-

side the ‘general rule’ * * * discussed in Franklin”).

Lastly, there is no merit to respondents’ reliance (at 38-39)

on the “historic equitable” powers of the federal courts. Those

background principles did not carry the day in construing the

Sherman Act’s remedies (see pages 15-16, supra), or in Grupo

Mexicano, and they should not here either. Moreover, this case

is readily distinguishable from Califano v. Yamasaki, 442 U.S.

682 (1979), which turned on the complete absence of any evi-

dence in “either the [statutory] language or the legislative his- ©

tory” of an intent on Congress’s part to preclude injunctive

relief. And cases such as Califano are fundamentally different

because they involved arguments that particular statutory provi-

sions categorically barred the federal courts from exercising

their traditional equitable authority. But Congress has not pre-

cluded the federal courts from exercising their equitable powers

in all civil RICO cases; it has simply insisted that these powers

be invoked by the federal government only.

* * > . *

As respondents have candidly admitted (Br. in Opp. 15),

the Court’s resolution of this case will not materially diminish

the statutory protections available in the future to abortion clin-

ics or their patients. The FACE Act, 18 U.S.C. § 248, forbids

the actual or attempted interference, through “threat of force or

by physical obstruction,” with “any person because that person

is or has been * * * obtaining or providing reproductive health

services.” Id. § 248(a)(1). It not only imposes criminal penal-

ties (although less severe ones than the Hobbs Act) but also

authorizes private civil actions for compensatory and punitive

damages and for “temporary, preliminary, or permanent injunc-

tive relief.” Jd. § 248(c\1\(B). The FACE Act, in short, is

everything RICO and the Hobbs Act are not.

CONCLUSION

The judgment of the court of appeals should be reversed.

icago, IL 60603

(312) 782-1680

D. COLETTE WILSON

Inglewood, CA 90501"

in 90301

(310) 672-3104

OCTOBER 2002

21

SHERRI LYNN WOLSON

Robbins, Russell, Englert,

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 41]

pee ay D.C. 20006

(202) 775-4500

* Counsel of Record