Petition for Writ of Certiorari — Swift v. United States

SEP 19 1984

ALEXANDER i. STEVAS,

vawe i

pwr wwe e a8

a

In the Supreme Court of the United States

7 October Term, 1984

ROGER SWIFT,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOEL S. PERWIN, Esq.

(Counsel of Record )

PoDHURST, ORSECK, PARKS, JOSEFSBERG,

Eaton, Meapow & Ot tn, P.A.

1201 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

(305) 358-2800

Attorney for Petitioner

September 19, 1984

E. L. MENDENHALL, INCc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTION PRESENTED FOR REVIEW

WHETHER THE CIRCUIT COURT ERRED IN HOLDING

THAT CONVICTION FOR EXTORTION UNDER COLOR

OF OFFICIAL RIGHT UNDER THE HOBBS ACT, 18

U.S.C. §1951(b) (2), DOES NOT REQUIRE ANY PROOF

THAT THE DEFENDANT PUBLIC OFFICIAL INDUCED

OR SOLICITED THE PAYMENT.

Ill

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...:................ I

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te ieschsncheniaasnnancsalisantinannetcenenoaanaoennane 2

is icascsatonhcingsicancdcisenasnensabntndannsaacvenana 4)

ce ol 8 ys ft 6) 5

REASONS FOR GRANTING THE WRIT . Mkt cssdinocinats 9

CONCLUSION ...... eas Mn cdathes i eualuabavanadlgpheciipanties ieneatantnba 13

TABLE OF CASES AND AUTHORITIES

Continental Illinois National Bank and Trust Co. of

Chicago v. United States, 403 F.2d 721 (Ct. Cl. 1968),

cert. denied, 394 U.S. 973 (1969) ........ adatdaiiaiinaiaistdee 11

Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977) ............ 11

Landro v. Glendenning Motorways, Inc., 625 F.2d 1344

ae hc clcadi ase ceil ianisisaneeninibabanaacicien 11

United States v. Butler, 618 F.2d 411 (6th Cir.), cert.

I IN, EE ED aincscccsacesnenneeesccnsnmssisrenernsciees 10

United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979),

cert. denied, 444 U.S. 1043 (1980) ~..000. ee. 10

United States v. Crowley, 504 F.2d 992 (7th Cir. 1974) 10

United States v. Frade, 709 F.2d 1387 (11th Cir. 1983) 11

United States v. Hedman, 630 F.2d 1184 (7th Cir. 1980),

cert. denied, 450 U.S. 965 (1981) .......... 9,10

United States v. Hyde, 448 F.2d’815 (5th Cir.), cert.

A ED acisasannvsswuicncennssnnssincennccnsene 10

United States v. Jannotti, 673 F.2d 578 (3rd Cir.), cert.

RE ED WM RM CRIED 6a ccnnssaccnccccccnerecsscsensneseusnans 10

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

site dadereleusansannrnniednhihsn sham ananenincbnen 10

IV

United States v. Mazzei, 521 F.2d 639 (3rd Cir.) (en

banc), cert. denied, 423 U.S. 1014 (1975)... 10

United States v. O'Grady, No. 83-1344 (2nd Cir., July

a SE NN OD ccs cccnsttcntntoemmebneaies 3, 4, 10,11, 12

United States v. Rabbitt, 583 F.2d 1014 (8th Cir.),

cert. denied, 439 U.S. 1116 (1978) -...00.... en. 10

United States v. Sisk, 476 F.Supp. 1061 (M.D. Tenn.

1979), aff'd, 629 F.2d 1174 (6th Cir. 1980) 20000000... 10

United States v. Sutter, 160 F.2d 754 (7th Cir. 1947) 10

United States v. Trotta, 525 F.2d 1096 (2nd Cir. 1975),

cert. denier, 425 U.S. 971 (1976) .....................0....0..... 10

Oe Mes IED. posahceiehcscenones scsi de-tsinacntasccalcmnaneins 11

Ba ele I shaped Ritch ai cpdeenbacth aiccnnic-chuniibiggnccealaiala 2, 5,6

oS ee Ce” be aa ee 2

Ruff, Federal Prosecution of Local Corruption; a Case

Study in the Making of Law Enforcement Policy, 65

ibe EO, CED kreeet eee ea 10

No. |

In the Supreme Court of the United States

October Term, 1984

ROGER SWIFT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioner, Roger Swift, respectfully prays that a

writ of certiorari issue to review the opinion and judg-

ment of the United States Court of Appeals for the Eleventh

Circuit entered in this proceeding on May 21, 1984, and

rendered by denial of rehearing on June 22, 1984.

OPINION BELOW

The decision of the Court of Appeals is reported at

732 F.2d 878, and appears in the appenu:x hereto at page

Al. The judgment of the District Court appears at AQ, its

order denying post-trial motions at A8; neither are

reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

May 21, 1984 (Al10). A timely petition for rehearing was

denied on June 22, 1984 (All). This Court’s jurisdiction

is invoked under 28 U.S.C. §1254(1).

This petition for certiorari was not filed within 60

days of the appellate court’s June 22 order denying re-

hearing (or by August 21, 1984), as provided by Rules

20.1 and 20.4 of the Rules of the Supreme Court. The

reason is that after the appellate court denied his petition

for rehearing, the petitioner (hereinafter “Swift”) initially

determined not to file a petition for writ of certiorari in

this Court. The primary basis upon which Swift had

sought review in the circuit, court, as we explain more

fully below, was that the trial court had erred in effec-

tively instructing the jury that conviction for extortion

by a public official under 18 U.S.C. §1951 requires no more

than proof of ordinary bribery—of the mere passive re-

ceipt of money by such a public official, in the absence of

any affirmative solicitation. At the time the appeal was

brought, the petitioner’s success on this point required

that he convince the circuit court to reject the reasoning

of a number of recent Abscam-era cases which appear to

abolish any distinction between bribery and extortion—

holding that the mere passive receipt of money by a public

official is sufficient inducement to constitute extortion—

and instead to adopt the holdings of a number of earlier

cases that conviction for extortion requires some proof of

affirmative exhortation or inducement by the defendant.

In reliance upon the more-recent line of cases, the

circuit court rejected that argument and affirmed the

conviction. Since at that time there was no recent de-

3

cision of any circuit court to the contrary, and mindful of

this Court’s onerous calendar, Swift concluded that the

chances of succeeding upon certiorari were remote, and

determined not to seek such a writ.

All of that changed with the en banc decision of the

United States Court of Appeals for the Second Circuit in

United States v. O'Grady, No. 83-1344 (2nd Cir., July 12,

1984) (en banc) (53 U.S.L.W. 2090)—holding that con-

viction for extortion under color of official right does re-

quire proof that the public official affirmatively induced

payment of the benefits received. The O’Grady decision

created an explicit inter-circuit conflict on the precise

point at issue in this case, thus creating the opportunity

for the petitioner in this case to seek review by this Court

in the good-faith belief that review might now be ac-

cepted.

The O’Grady case was decided July 12, 1984, and a

summary of O’Grady appeared for the first time in the

United States Law Week issue dated August 21, 1984.

That issue was received in the unde-signed counsel’s office

on August 23 or 24, and was circulated to the undersigned

counsel on August 24. The undersigned counsel read about

the O’Grady opinion on the evening of August 24, and

immediately began to prepare a motion seeking an exten-

sion of time in this Court to file a petition.

Rules 20.1 and 20.6 of the Rules of the Supreme Court

do provide for extensions of up to 30 days in which to file

such a petition; but Rule 29.2 says that such a request for

extension should be submitted at least 10 days before the

specified filing date. Swift’s petition was due to be served

by August 21, and therefore any such motion for extension

was due to be served by August 11. However, Rule 29.2

does provide that a later-filed extension will be considered

“in the most extraordinary circumstances... .” Thus

the undersigned counsel prepared such a motion over

the weekend of August 25, and forwarded it to this Court

by express mail on the next business day, August 27.

The motion was received by the Clerk of this Court

on August 28, and was returned to the undersigned counsel

witi. a letter dated August 29 (Al4), explaining that the

Court will consider a late motion for extension only if

such a motion is filed within the origal 60 days allowed

by the rules. However, the letter ass® noted that the

filing of a petition for writ of certiorari out of time in a

criminal case is not a jurisdictional defect, and that the

petition would be docketed even if filed late. The un-

derSigned counse] then commenced work on the petition,

and is serving this petition within 30 days of the original

due-date of August 21—that is, within the 30-day period

of extension permitted by the rules in extraordinary cases.

It is respectfully submitted that this is such an extraor-

dinary case. The initial decision not to seek review in

this Court was the right one, in the absence of any inter-

circuit conflict on the point in question. The intervening

O’Grady decision changed that calculus, creating an explicit

inter-circuit conflict, and making review of the opinion of

the circuit court in this case appropriate. It is respectfully

submitted that such review will not burden the calendar

of this Court. If review of the O’Grady decision is denied

by this Court, then of course it seems likely that review

in this case will be denied also. On the other hand, if this

Court agrees to review the O’Grady decision, then review

of the instant case will not create any significant additional

judicial labor. We are asking only for the opportunity to

stand or fall with this Court’s decision to review O’Grady.

Since we are filing this petition within the permissible 30-

day extension permitted by the rules, and since we have

5

engaged in no dilatory conduct or neglect, we respectfully

submit that this is one of a very few extraordinary cir-

cumstances in which such a late petition should be re-

ceived.

FEDERAL STATUTE

18 U.S.C, $1951. Interference with commerce by

threats or violence

(a) Whoever in any way or degree obstructs, de-

lays, or affects commerce or the movement of any

article or commodity in commerce, by robbery or ex-

tortion or attempts or conspires so to do, or commits

or threatens physical violence to any person or prop-

erty in furtherance of a plan or purpose to do anything

in violation of this section shall be fined not more than

$10,000 or imprisoned not more than twenty years, or

both.

(b) As used in this section—

(2) The term “extortion” means the obtain-

ing of property from another, with his consent,

induced by wrongful use of actual or threatened

force, violence, or fear, or under color of official

right.

STATEMENT OF THE CASE

With only a few exceptions, the relevant facts of this

case are fairly presented in the Circuit Court’s opinion;

where appropriate we will reference additional evidence

in the Record on Appeal.' Swift was indicted for extortion

under 18 U.S.C. §1951 (A12). The indictment expressly

charged that in his capacity as Sewer Director of the City

of Key West, Florida, Swift was guilty of extortion “in

that” he “solicited aid demanded a sum of money” from

an agent (Bobby Joe McBee) of a construction company

(CFW), and that CFW’s “consent” to make payment was

“induced both by fear of economic loss and under color

of official right,” in return for which Swift promised to

expedite payments to CFW for vouchers for completed

work, and to eliminate construction delays (A12-A13). In

other words, by its indictment, the government obligated

itself to prove not simply that Swift was the passive re-

cipient of a bribe, but that he had affirmatively acted to

solicit and demand the money in return for promised

favors.

As the Circuit Court’s opinion notes (A4), Swift’s

defense, in reliance upon the government’s burden to prove

what it had alleged in the indictment, was that he had

taken the money only because exhorted by McBee to do

so. He offered repeated evidence that the company was

having trouble with the federal government, and that

some of its highest officials had entered into plea agree-

merts under which they had promised to cooperate fully

with any governmental investigation of the utility con-

struction industry (see Tr. 75, 80-83, 87, 170-72, 177).

1. “R.” refers to the Record on Appeal. “Tr.” refers to the

separately-paginated transcript cf the jury trial held in this

case on August 1 and 2, 1983. The two volumes of the transcript

are designated Documents No. 71 and 72 in the Index to the

Record on Appeal.

The petitioner has not requested that the clerk of the circuit

court certify and transmit the record to this Court under Rule 19

of the Rules of the Supreme Court. Both sides of this case

have agreed on the relevant facts throughout, and no such cer-

tification is necessary. Should any controversy arise, we will

request certification of the record under Rule 19.

Swift’s suggestion to the jury was that McBee and CFW

had set him up to curry favor with the government, and

he testitied that it was McBee who had initiated ialk about

the pay-off—as consistent with CFW’s common practice

on construction jobs—and who had consistently exhorted

Swift to take the money (Tr. 414-18, 430). Swift attributed

to McBee the representation that McBee would be leaving

CFW in the near future, and that CFW would not give

him a good recommendation unless he accomplished this

standard task (Tr. 416). The circuit court’s opinion neg-

lects to acknowledge that this defense was expressly cor-

roborated by one of the tape-recorded conversations (see

A3), in which McBee said expressly that Swift’s acceptance

of the money would “mean a difference of me getting a

job somewhere else” (Tr. 510). Thus, Swift’s story was

not only inconsistent with the government’s indictment,

but was corroborated by the tape recording. On the other

hand, as the circuit court’s opinion makes clear (A3), there

was also evidence to contradict Swift’s story.

As the op nion notes (A4)}, the trial court’s initial

instruction to tue jury was entirely consistent with the in-

dictment and with Swift’s understanding of the govern-

ment’s burden. The opinion neglects to note that the initial

charge was proposed by the government (R. 98). The

judge charged the jury to find extortion only if it concluded

that Swift had “induced” McBee to part with the money by

obtaining it under color of official right (Tr. 575-76). The

court noted that “the wrongful use of otherwise valid of-

ficial power may convert dutiful action into extortion,”

and continued: “So, if a public official threatens to take

or withhold official action for the wrongful purpose of in-

ducing a victim to part with property, such a threat would

constitute extortion, even though the official was already

duty bound to take or withhold the action in question”

(Tr. 576). Thus, the trial court plainly charged the jury,

consistent with the governmeiit’s indictment, that Swift’s

conviction might be predicated only upon some affirma-

tive exhortative conduct—as opposed to merely passive re-

ceipt of the money.

As the opinion notes (A4), the jury sent back three

questions after its first hour of deliberation. They are

quoted at A4. The trial court’s responses, with the ex-

press approval of both Swift and the government, were

that it was necessary for Swift to make the first approach

to be guilty of extortion; and that Swift might be guilty

even if McBee had offered the money first, but only so

long as that money was demanded by Swift before it was

offered by McBee. But the court declined to tell the jury

the difference between bribery and extortion, peer it

back to the initial instructions (A4).

That afternoon the jury sent back two more questions,

only one of which is relevant to this appeal. It asked if

the jury decided that McBee had offered some money for

help in resolving CFW’s problems, and that Swift had

stated a dollar amount, if that was extortion (A4). There

followed an extended colloquy between the court and coun-

sel, in which the government disclaimed its obligation to

prove the charge in the indictment, abandoned the earlier

jury charges which the government had first proposed, dis-

covered the Abscam-era cases for the first time, and urged

the court to charge that Swift was guilty of extortion for

taking the money alone (Tr. 601-15). As the circuit court’s

opinion notes (A5), the trial court was persuaded

to answer “yes” to the jury’s afternoon question—that

is, that it was still extortion if McBee offered some money

and Swift stated the amount; and further, that the answer

to the first of the morning questions should have been

“no” rather than “yes”—that is, that it was not necessary

for Swift to make the first approach in order to be guilty

of extortion. Within 10 or 15 minutes, the jury returned

with its conviction (Tr. 627-28).

Without question, the jury had believed Swift’s ver-

sion of what had happened—that McBee had made the first

approach; that McBee had offered the money; that McBee

had exhorted Swift to take it; and that Swift did no more

than name an amount under this urging, and then take it.

The trial court’s answers informed the jury that Swift

would be guilty of extortion simply because he named the

amount, even if Swift was telling the truth that he named

the amount only because McBee had hounded him to do

sO.

The circuit court found nothing wrong with that con-

clusion. In reliance upon the decision in United States v.

Hedman, 630 F.2d 1184, 1195 (7th Cir. 1980), cert. denied,

450 U.S. 965 (1981)—holding that it is unnecessary to show

that the defendant “induced” the payment, but only that

he “obtained money to which he is not entitled”—the

circuit court held that Swift was guilty of extortion because

the evidence showed that he was “acting under color of

official right when he accepted the payments from McBee’’

(A6). The circuit court continued: ‘Thus, the district

court’s instructions/answers to questions to the effect that

the government need not prove that [Swift] initiated the

conduct or coerced the payment of the money were correct ’

(id.).

REASONS FOR GRANTING THE WRIT

We acknowledge that the circuit court’s decision was

consistent with the weight of authority which existed at

the time it was made. Indeed, that is why Swift did not

10

initially seek review by this Court. Although there are

some earlier cases which hold that the mere passive receipt

of a bribe is not extortion—that the defendant must have

taken some affirmative action to induce the payment*—

the later Abscam-era cases effectively abolished the distinc-

tion between bribery and extortion, holding that the pas-

sive receipt of money by a public official is enough.’ It

was not until the O’Grady decision that a direct and

present inter-circuit conflict was created.

In O’Grady, the government proved only that a New

York City transit official had accepted assorted benefits

from some companies under contract to provide subway

cars to the city, and the district court instructed that

the government was not required to show that the de-

fendant “in words or otherwise” induced or solicited those

benefits. In an en banc decision, the Second Circuit re-

versed, holding that conviction for extortion requires proof

2. See, e.g., United States v. Rabbitt, 583 F.2d 1014, 1027

(8th Cir.), cert. denied, 439 U.S. 1116 (1978); United States v.

Trotta, 525 F.2d 1096, 1101 (2nd Cir. 1975), cert. denied, 425

U.S. 971 (1976); United States v. Mazzei, 521 F.2d 639, 645 (3rd

Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975); United States

v. Crowley, 504 F.2d 992, 995 n.5 (7th Cir. 1974); United States

v. Hyde, 448 F.2d 815, 833 (5th Cir.), cert. denied, 404 U.S. 1058

(1971); United States v. Sutter, 160 F.2d 754, 756 (7th Cir. 1947);

United States v. Sisk, 476 F. Supp. 1061, 1062 (M.D. Tenn. 1979),

aff'd, 629 F.2d 1174 (6th Cir. 1980); United States v. Kubacki,

237 F. Supp. 638, 641 (E.D. Pa. 1965).

3. See, e.g. United States v. Jannotti, 673 F.2d 578 (3rd Cir.),

cert. denied, 457 U.S. 1106 (1982); United States v. Hedman, 630

F.2d 1184, 1195 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981);

United States v. Butler, 618 F.2d 411, 417 (6th Cir.), cert

denied, 447 U.S. 927 (1980). For an exhaustive summary of

all of the cases on this issue, see the Second Circuit’s discussion

in United States v. O’Grady, supra. See generally United States

v, Jannotti, 673 F.2d 578, 627 (3rd Cir.) (Aldisert, J., dissenting),

cert. denied, 457 U.S. 1106 (1982); United States v. Cerilli, 603

F.2d 415, 426-37 (3rd Cir. 1979), cert. denied, 444 U.S. 1043

(1980); Ruff, Federal Prosecution of Local Corruption; a Case

Study in the Making of Law Enforcement Policy, 65 Geo. LJ.

1171 (1977).

11

of some affirmative conduct under color of office which

causes the provision of benefits. That kind of inducement

can take many forms—like requests, demands, solicitations,

some quid pro quo, or other circumstantial evidence show-

ing that the official had induced the payments. Even an

inchoate impression that the official expected payment

might be enough—but the passive receipt of money would

not. That would be bribery, punishable under another

statute (18 U.S.C. §201(c)).

It would serve no useful purpose to borrow selectively

from the Second Circuit’s masterful treatment of the

legislative history of the Hobbs Act, and of the cases en-

forcing it. On the legislative history, the O’Grady opinion,

and the authorities which it cites, establish that the

common-law definition of extortion did not encompass the

merely-pass.ve receipt of money by a public official; that

the federal statute was predicated primarily upon a New

York statute which drew an explicit distinction between

bribery and extortion; and that the legislative history of

the Hobbs Act leaves little question that Congress in-

tended to preserve that distinction. Any other construc-

tion of the statute would render it identical to the bribery

statute, 18 U.S.C. §201(c), at least regarding public officials

—in that bribery of a public official would always con-

stitute extortion by a public official, and extortion by a

public official would always constitute bribery of a public

official. At the least, the courts should indulge “a pre-

sumption against construing a statute in such a way as

to render it superfluous.”*

4. Landro v. Glendenning Motorways, Inc., 625 F.2d 1344,

1356 (8th Cir. 1980). See United States v. Frade, 709 F.2d 1387,

1401 (llth Cir. 1983); Jackson v. Kelly, 557 F.2d 735, 740 (10th

Cir. 1977); Continental Illinois National Bank and Trust Co. of

Chicago v. United States, 403 F.2d 721, 724 (Ct. Cl. 1938), cert.

denied, 394 U.S. 973 (1969).

12

There can be no question that if Roger Swift had

been convicted in the Second Circuit instead of the

Eleventh Circuit, he would now be preparing for a new

trial. Admittedly, there was sufficient evidence in this

case to permit the conclusion that it was Swift who had

demanded the money under color of his office. But there

was also sufficient evidence to permit a conclusion that

even though he eventually succumbed to McBee’s pressure

and named an amount of money, he did so only after re-

peated exhortation—in short, that his naming of a dollar

amount was not a form of inducement, but a surrender

to unrelenting pressure. And yet, the trial court’s answers

to the jury’s inquiry permitted Swift’s conviction even

under such circumstances. The circuit court acknowledged

as much, in its observation that Swift was properly con-

victed because he was “acting under color of official right

when he accepted the payments from McBee” (A6) (our

emphasis).

We respectfully submit that it is fundamentally unfair

for Swift’s status as guilty or innocent—and thus his

freedom—to depend so directly upon the judicial circuit

in which he was tried. The conflict between the circuits

on this question is direct.and irreconcilable. It should be

resolved by this Court, in O’Grady and in this case.°

5. If permitted to brief this case on the merits, we would

make two additional points in support of reversal: 1) because

of the language of the government’s indictment in this case

(A12-A13), the government obligated itself to prove exhortation

or inducement even if no such proof is required under the

extortion statute. Thus, the trial court’s belated instructions to

the jury constituted either a constructive amendment to, or a

fatal variance from, the indictment, which is a violation of the

defendant’s due-process rights; and 2) that even if the Abscam-

era cases are correct, the trial court’s charge in this case was

erroneous in light of the trial court’s correct decision to instruct

the jury on entrapment—because the late instructions erroneously

imposed upon Swift the burden to prove his entrapment defense.

The circuit court was wrong to reject both points.

13

CONCLUSION

It is respectfully urged that a writ of certiorari should

issue to review the judgment and decision of the United

States Court of Appeals for the Eleventh Circuit in this

case.

Respectfully submitted,

PODHURST, ORSECK, PARKS, JOSEFSBERG,

Eaton, Meapow & OLNm, P.A.

1201 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

(305) 358-2800

By: Jor, S. PERWIN

rj"

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APPENDIX

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Roger SWIFT, Defendant-Appellant.

No. 83-5690

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

May 21, 1984.

Defendant was convicted in the United States District

Court for the Southern District of Florida, Norman C.

Roettger, Jr. J., of Hobbs Act violation, and he appealed.

The Court of Appeals, James C. Hill, Circuit Judge, held

that evidence that defendant, a city sewer director, was

acting under color of official right when he accepted pay-

ments from contractor in return for facilitating approval

of periodic progress payments to contractor for construc-

tion of several sewage pumping stations was sufficient to

sustain Hobbs Act extortion conviction, regardless whether

defendant initiated conduct or coerced the payment.

Affirmed.

1. Extortion and Threats (Key) 16

Evidence that city sewer director was acting under

color of official right when he accepted payments from

construction company in return for facilitating approval

of periodic progress payments to company for construction

of several sewage pumping stations was sufficient to sustain

A2

conviction of extortion under the Hobbs Act, regardless

whether director initiated conduct or coerced payment of

the money. 18 U.S.C.A. §§ 1951, 1951(a).

2. Criminal Law (Key) 847

District court was not estopped from correcting er-

roneous instruction simyly by failure of prosecutor to

realize problem and timely object.

Joel S. Perwin, Podhurst, Orseck, Parks, Josefsberg,

Eaton, Meadow & Olin, Miami, Fla., for defendant-ap-

pellant.

Martha Rogers, Linda Hertz, Andrea Simonton, Asst.

U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the

Southern District of Florida.

Before HILL, JOHNSON and HENDERSON, Circuit

Judges.

JAMES C. HILL, Circuit Judge:

[1] Roger Swift appeals to this court from his con-

viction in the district court for violation of the Hobbs Act,

18 U.S.C. § 1951. Swift contends that the district court’s

answers to questions posed by the jury during their de-

liberations were prejudicially confusing and incorrect as a

matter of law. Finding no error, we affirm.

The Hobbs Act provides:

Whoever in any way or degree obstructs, delays,

or affects commerce or the movement of any article or

commodity in commerce, by bribery or extortion or

attempts or conspires to do so, or commits or threatens

physical violence to any person or property in fur-

A3

therance of a plan or purpose to do anything in vio-

lation of this section shall be fined not more than

$10,000 or imprisoned not more than 20 years or both.

18 U.S.C. § 1951(a). At trial, the government sought to

prove that Swift used his position as sewer director of Key

West, Florida to obtain money from the CFW Construction

Company in return for facilitating approval of periodic

progress payments to it for the construction of several

sewage pumping stations.

The evidence produced at trial showed that Swift, in

January, 1983, accepted $25,000 from Bobby Joe McBee,

an employee of CFW. (McBee was “wired” by the FBI

at the time he made the payment.) At trial, Swift did not

contend that he never accepted the money, but based his

defense on the claim of entrapment. Swift testified that

McBee first approached him, at the direction of the FBI,

offering money and that CFW had “set him up” to curry

favor with the government. The government, however,

produced evidence that Swift first approached McBee and

CFW requesting money and persistently contacted them,

insisting on receiving payment. The government also pro-

duced evidence showing that Swift, who had authority te

approve CiW’s payment requests, emphasized to CFW

his ability to deny those requests and told them that he

could alleviate any problems they might experience with

job inspections conducted by the project engineer hired by

the city. Swift wrote out a “schedule of payments” that

he expected to receive from CFW. Swift testified, how-

ever, that McBee insisted that Swift accept the payments,

giving as his reason that if he left his job at CFW without

paying Swift he would not receive a good recommendation

for another job. Swift nevertheless admitted that he, and

not McBee, first specified the amount of money that Swift

expected to receive.

Pe

A4

On appeal, Swift does not contend that the trial court’s

charge to the jury was incorrect in any way. The claimed

error is based on the answers given by the trial judge

to three questions asked by the jury during their delibera-

tions. The first two questions were asked by the jury

simultaneously at about 10:45 a.m. on the first full day of

deliberations. The questions, with the answers initially

given by the trial judge, are as follows:

Question I:

Is it necessary for Swift to approach McBee first

to be an act of extortion?

Answer: Yes.

Question II:

If CFW (McBee) offers the money first, is this

still extortion (if Swift accepts the money) ?

Answer: Yes, provided the money was demanded by

Swift before it was offered by CFW.

In reply to a third question that inquired as to the dif-

ference between accepting a bribe and extortion, the court

responded: “Please confine yourselves to the offense

charged, i.e. extortion with the definition given you.” The

court then recessed until 2:10 p.m. at which time the jury

asked another question.’ The jury asked:

Question:

If CFW or McBee offer “some money” for help in

resolving problems and Swift stated a dollar amount,

$25,000, and then the money is paid—is this extortion?

1. The jury actually asked two questions; however, one of

the questions is not relevant to the issues on appeal.

AS

The trial judge gave the following answer:

Upon further reflection and research the answer to

the first three questions you submitted this morning

should have been a “no” answer rather than “yes.”’

The answer to this jury question, as stated above,

is “yes.”

The issues remain for you to decide whether the

government has proved beyond a reasonable doubt

both of the following:

(1) whether Roger Swift committed extortion as

defined in the instructions of law; and, if so,

(2) whether Roger Swift had the predisposition

to commit the offense as defined in these instructions.

In arriving at your verdict you are reminded to

consider all the evidence and all of the court’s in-

structions.

Swift’s attorney objected to the third answer on two

grounds. First, he argued that Swift could not be found

guilty of extortion unless Swift initiated the demand for

payment. Second, he argued that the entrapment issue

was woven into the determination of extortion and that

entrapment should be considered before the jury deter-

mined the other elements of extortion. The defense

counsel argued that the answer to the question should be

“maybe” rather than “yes.” On appeal, Swift relies on

essentially the same arguments, adding a claim that the

government, by agreeing to the trial judge’s decision to

answer the first question yes, was estopped later to change

its position.

An examination of the cases demonstrates that Swift's

attempted distinction of bribery and extortion (on the basis

A6

of inducement of the payment by the defendant) is without

merit. In United States v. Hedman, 630 F.2d 1184 (7th

Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67

L.Ed.2d 614 (1981), the court stated:

It is settled law in this Circuit as well as others

that in a Hobbs Act prosecution for extortion under

color of official right it is unnecessary to show that

the defendant induced the extortion payment or that

the payor was entitled to the benefit obtained from

such payment. The government is merely required

to prove that a public official obtained money to which

he is not entitled and which he obtained only because

of his official position.

630 F.2d at 1195 (footnote omitted) (citing cases from

seven circuits). The case law in the Fifth and Eleventh

Circuits is in accord. In United States v. Williams, 621

F.2d 123 (5th Cir.1980), cert. denied, 450 U.S. 919, 101

S.Ct. 1366, 67 L.Ed.2d 346 (1981), the court expressly re-

jected the contention that “coercion is an essential element

of the crime... .” Id. at 124; see also United States v.

Glass, 709 F.2d 669, 674 (11th Cir.1983). It is clear in this

case that the evidence showed that Swift was acting

under color of official right when he accepted the payments

from McBee. Thus, the district court’s instructions/answers

to questions to the effect that the government need not

prove that Smith initiated the conduct or coerced the pay-

ment of the money were correct.

[2] Given that Swift’s arguments concerning the

meaning of extortion are without merit, it is clear that his

other claims are also groundless. The district court is not

“estopped” from correcting an erroneous instruction simply

by the failure of the prosecutor to realize the problem and

timely object. See United States v. Valencia, 645 F.2d

AT

1158 (2d Cir.1981) (trial court has power to correct er-

roneous instruction). Moreover, any possible confusion

that may have resulted from the erroneous answer to the

jury’s first question operated to the defendant’s benefit

by requiring the government to prove not only induce-

ment under color of official right, but a specific demand

by the defendant. Such an error, which operates to the

benefit of the defendant, does not serve as the basis for

reversal. See United States v. Thomas, 567 F.2d 638 (5th

Cir.), cert. denied, 439 U.S. 822, 99 S.Ct. 90, 58 L.Ed.2d

114 (1978). Swift raises several other contentions con-

cerning the propriety of the court’s answers to the jury’s

questions; however, we have carefully reviewed his argu-

ments and brief, and we do not find any reversible error

by the district court.

The judgment is

AFFIRMED.

A8

(Filed September 26, 1983)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 83-100-Cr-NCR

UNITED STATES OF AMERICA

v.

ROGER SWIFT

ORDER

THIS CAUSE is before the court on motion of defen-

dant for a new trial. Upon consideration of the record in

this case, it is

wo

ORDERED that defendant’s motion is denied.

DONE AND ORDERED this 26 day of Sept., 1983.

/s/ Norman C. Roettger, Jr.

United States District Judge

Norman C. Roettger, Jr.

cc AUSA(Rogers)

Josefsberg

United States of America vs. a U . District Court ter

ROGER L.. SULET. ( ' ---'!

OerFembant

u 1 BOCKET NO — ge | 100-CR-NCR_ ~-—

la the presence of the attorney for the government

the defendant sppeared ia person on tis date -

Come, | LJ WITHOUT COUNSEL SGnmeear cho nen sibctend Getentenn a0 cadfn vo eexnash ent exhib whales detenters date! tem

Counsel sppouted by the court sad the defendent thereugen w arved esemtence of counsel.

Xj witwcounsa (Robert C, Josefsberg. Esq. _ “Fal

tame of C eumae!!

nga GUILTY, and the court being satisfied that ==» L_JNOLO CONTENDERS, LXUNOTCLATS? “9 PRS 47

there is e fectual basis for the plea,

a

“eae”

LJ NOT GUILTY. Defendant is di q

There being o fepgrgg/verdict of { — oer ru “4

ve { Ce JCunry. - oy

Defendant has been convicted as charged of the oftensety of Attempt to obstruct, dela ‘end

— / affect commerce by means of extortion, in Wisterioe oF 16’usc’2 51.

) The court asked whether delendam had anything to sey why judgment should not be pronounced Because no sufficient cause to the contrary

was shown, or appeared to the court. the court_adpediged the defendant guilty as chacged and Convicted and osdered that The defendant y

hereby Comemitied to the custody of the Artorney Ceneral or his authorized representative for impnsonment for 6 pened of FIVE (5)

unvemss | YEARS or until otherwise discharged 7 due procesa.of.lew.. It is furthe

= > ORDERED that execution of sentence is deferred until October 18, 1983

pucaTan }_at 10 A.M. at-which tims the defendant shall report to the institution

ensa designated by the Bureau of Prisons at his ow expense, or in the

alternative,'-he wust. report to the U.S. Marshal in Miami .by.10 A.M. on

October :18 ,::4983. .

rEOAL

ComerTiners

ae

asta Tien

:

ADDITIONAL | In addition to the special condstsons of probsucn wmpgosed above, 1 is hereby ordered that the general candstions of probation set oul on the

COMOITIONS reverne ude of thes judgment be unpaved. The Count may change the conditions of probation, reduce or extend the penod of prubstion, and}

oe at amy ume during the probation period o: within 6 maxmum probeucn penod of five years permitiod by lew, may issue 2 wartent and

PROBATION —er——s——r—vvr—ovrvvr 4

Cena eT

encanearn

The court orders commitment to the custody of the Attorney Ceneral and recommends, kis

2 cortited copy of Uws pigment

ead commament to the US Mar

earan shel of other otter

: : CERTIFIED AS A TRUE COPY On \

Gad BY THis SEP =<

LJ wu 5. Orsenct judge fs) / ue f Ch. i

NC. » RR. haot 4 1082 5 (7aDeruTy

BEST AVAILABLE COPY

Al0

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 83-5690

Non-Argument Calendar

D.C. Docket No. 83-00100-CR-NCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGER SWIFT,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

Before HILL, JOHNSON and HENDERSON, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Florida, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to Circuit Rule 23;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment

of conviction of the said District Court in this cause be

and the same is hereby, AFFIRMED.

Entered: May 21, 1984

For the Court: Spencer D. Mercer, Clerk

By: /s/ Illegible

Deputy Clerk

ISSUED AS MANDATE: JUL 23 1984

All

(Filed June 22, 1984)

{N THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 83-5690

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGER SWIFT,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING

Before HILL, JOHNSON and HENDERSON, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied

ENTERED FOR THE COURT:

/s/ James C. Hill

United States Circuit Judge

Al2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

NO. 83-100

18 U.S.C. §1951

M/S 20 years - $10,000

UNITED STATES OF AMERICA,

Plaintiff,

V.

ROGER LEO SWIFT,

Defendant.

INDICTMENT

The Grand Jury charges that:

On or about and between May 29, 1982, and January

13, 1983, at Key West, Monroe County, in the Southern

District of Florida, the defendant, ROGER LEO SWIFT,

did knowingly, willfully, and unlawfully attempt to ob-

struct, delay, and affect commerce, as that term is defined

in Section 1951 of Title 18, United States Code, by extor-

tion, as extortion is defined in said section of the United

States Code, in that the defendant, ROGER LEO SWIFT,

a public official, to wit, Sewer Director, City of Key West,

solicited and demanded a sum of money, to wit, forty-five

thousand dollars ($45,000), and obtained a sum of money,

to wit, twenty-five thousand dollars ($25,000) from Bobby

Joe McBee, an agent and representative of CFW Construc-

tion Company, Inc., a Tennessee corporation which had

a contract with the City of Key West, with the consent

of CFW Construction Company, Inc., said consent having

been induced both by fear of economic loss and under

Al3

color of official right, which said sum was paid to the

defendant, ROGER LEO SWIFT, in return for: an agree-

ment to expedite payment of CFW Construction Company,

Inc.’s vouchers for completed work and to eliminate pro-

ject construction delays.

All in violation of Section 1951, Title 18, United States

Code.

A TRUE BILL

/s/ (Illegible )

Foreperson

/s/ Stanley Marcus

Stanley Marcus

United States Attorney

/s/ Martha P. Rogers

Martha P. Rogers

Assistant United States Attorney

Al4

OFFICE OF THE CLERK

- SUPREME COURT OF THE UNITED STATES

WASHINGTON, D. C. 20543

August 29, 1984

Joel S. Perwin, Esq.

Podhurst, Orseck, Parks, et al.

Suite 1201, City National Bank

Building

25 West Flagler Street

Miami, Florida 33130-1780

RE: Roger Swift v. United States

Dear Mr. Perwin:

Your application for an extension of time within which

to file a petition for a writ of certiorari was received on

August 28, 1984 and is herewith returned as out of time.

An application for an extension of time within which

to file a petition for a writ of certiorari in a criminal case

must be presented to the Clerk within 60 days of the judg-

ment sought to be reviewed. See Rules 20.1 and 29.2.

Therefore, your application for an extension of time was

due on or before August 21, 1984.

However, filing a petition for a writ of certiorari out

of time in a criminal case is not a jurisdictional defect.

You can still file your petition, and it will be docketed and

sent to the Court with a notation as to its untimeliness.

Please note that pursuant to Rule 28.4 of the Rules

of the Supreme Court, service must be made upon the

Al5

Solicitor General of the United States when the United

States is a party to an action.

Very truly yours,

ALEXANDER L. STEVAS, Clerk

By /s/ Edward L. Turner, Jr.

Edward L. Turner, Jr.

Assistant Clerk

Enc.