Petition for Writ of Certiorari — Ingram v. United States

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85 - 2008 FILED

———__ !

NO. JUN 2 1988

| JOSEPH F ae |

IN THE r

Supreme Court of the United States

OCTOBER TERM, 1986

HENRY E. INGRAM, JR.

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES

FOURTH CIRCUIT COURT OF APPEALS

BOB WARREN

117-D CHERRY STREET

BLACK MOUNTAIN, NORTH CAROLINA 28711

(704) 669-5709

COUNSEL FOR PETITIONER

a eee

APPELLATE PRINTING SERVICES. INC HERITAGE BLOG RICHMOND VA (804) 643-7789

QUESTIONS PRESENTED

Whether the defense of legal

impossibility can be abrogated by the

courts when Congress has not yet pro-

vided the elimination of this defense

for the statute which the accused is

charged with violating?

Whether there was sufficient evi-

dence presented to sustain a conviction

of conspiracy to violate the Hobbs Act

when there was no interstate commerce

affected and no probable effect on

interstate commerce?

III

Whether a defendant has the right

to be tried by a jury composed of a

cross section of citizens within the

division where the crime is alleged to

have occurred rather than by a jury

drawn from a statewide jury box?

Whether an entrapment charge should

have been submitted to the jury?

Note: Clifford Brantley is the only

other party involved in this case

who is not listed in the caption.

TO THE HONORABLE WARREN E. BURGER,

CHIEF JUSTICE, AND ASSOCIATE JUSTICES

OF THE SUPREME COURT OF

THE UNITED STATES

Henry E. Ingram, Jr., the Peti-

tioner herein, prays that a Writ of

Certiorari issue to review the deci-

sion and judgment of the United States

court of appeals for the Fourth Cir-

cuit entered in the above entitled

case on November 7, 1985.

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Opinions Below

Jurisdiction

Statutes and Constitutional

Provisions Involved

Statement of Case

Reasons for Granting Writ

Conclusion

Appendix

Page

TABLE OF AUTHORITIES

Booth v. State, 398 P. 2d 863

CORR. Ce. Appe 19GB) cccccsccececess

Brown v. Allen, 344 U.S. 443,

97 L.Ed. 469, 73 S.Ct. 397 (1953)..

Carter v. Greene County, 396 U.S.

320, 24 L.Ed.2d 549, 90 S.Ct. 518

(1970) ..cceces eee cccccccccccccesese

Dupoint v. United States, 388 F.2d

39 (Sth Cir. 1968) .ccccccsccccccces

Duren v. Missourt, 439 U.S. 357,

58 L.Ed.2d 579, 99 S.Ct. 664

(19746) wccccccecece TOrerrrerer errr

Hampton v. United States, 425 U.S.

484, 48 L.Ed.2d 113, 96 S.Ct.

LGAB (1976) wcccccccccccccsccees eee

ladner v. United States, 168 F.2d

772 (Sth Chir. 1948) .ccccccccccscess

Model Penal Code, Tentative Draft

No. 10 (1960)...... 15, 16, 17, 21,

Osborn v. United States, 385 U.S.

323, 17 L.Ed. 2d 394, 87 S.Ct.

MERGE sctnbcascscccunccbunessca Oe

People v. Rollino, 37 Misc. 2d 14

233 N.Y.S. 2d 580 EE OUES 66nees 66054

iii

Peters v. Kiff, 407 U.S. 493, 33

L.86.2d 83, 92 S.Ct. 2163 (972)... 3

Rewis v. Untited States, 401 U.S.

SOS C1 OTL) cevccccscccessscvessss 45,55

Section 2, Title 18, U.S .Cecccccesecs 8

Section 1254(1), Title 28 U.S.C..... 4,5

Section 1861, Title 28, U.S.C..... 28,29

Section 1951, Title 18, U.S.C.

oencedeesesenee 5,11,12,16,45, 30,54,356

Section 195l(a), Title 28, U.S.C.A... 51

Section 1952, Title 18, U.8.C.Aoweece 49

Section 371, Title 15, U.S .Ceccsccses 7

Sherman v. United States, 356 U.S.

369, 2 L.Ed.2d 848, 78 S.Ct. 819

ths ) Pr rrreerrre rrr Terre re Tere 33

Smith v. Tezae, 311 U.S. 128, S$

L880. GA, B.Ce. TGR CEO) vc icvccccs 31

Sorrelle v. United States, 287 U.S.

435, 77 L.Bdé. 413, 53 $.Ce. 210

Taylor v. Louisiana, 419 U.S. 522,

42 L. Ed. 2d 690, 95 S.Ct. 692

to ip) POUT EPPETETTORTUCRITOR CTT eee 31

United States Constitution, Fifth

AMONGMOENE . cc ccccvecccceececvcsecccces 9

United States Constitution, Sixth

AMORGMODE oo ccccccccesvecoveces 9,28,30

United States Constitution,

Fourteenth Amendment.......seeeeees 10

United States v. Archer, 486 F.2d

670. Gnd Cir. 1973) vsccvessccousenn 49

United States v. Bagnariol, 665

F.2d S77 (Sch Cic. 1961] ) isvcastavdea 17

United States v. Berrigan, 482 F.2d

171 (3rd Cie. T9732 scenes oneweveseen 19

United States v. Brooklier, 459

F.Supp. 476 (C.D. Cal.

£976) 0406020 %00ee soouseses BI guneoesee

United States v. Darnell, 545 F.2d

$05 (8th Cies 197G)is sss coe eee io,as

United States v. Duz-Mor Diagnostic

Laboratory, Inc., 650 F. 2d 223

(Sth Cir. , 1962) wciovscecceveseuuee 18

United States v. Everett, 692 F. 2d

596 (Sth Cir, E9GZ) sis0e0uees vectbn 18

United States v. Feola, 420 U.S.

671, 43 L.Ed.2d S41, 93 SCE.

1255 (1975) .ccssvovssesdbeueuue 25,08

United States v. Fernandez, 480

F.26 726 (Zand Cir. 1973} ssicneveses 30

United States v. Frazier, 560 F.2d

684 (6th Cir. 1977). <.cuseisveccanaee 22

United States v. George Everett,

700 F.2d 900 (3rd Cir. 1983)....... 20

United States v. Gambino, 566 F.2d

414 (ad Cir. 2977) 6.40% shark ete 50

United Statee v. Hair, 356 F.Supp.

S20 CDBG. LSTR) ovcncvcscsvecens 15,19

United States v. Heng Awkak Roman,

356 F. Supp. 434 (S.D.N.Y., 1973).. 21

United States v. Holmes, 767 F.2d

Saw CESGR Choe TPGS) oes ccccccconses 23

United States v. Hunter, 478 F.2d

EGR: (30h Che. E978) 6 vccctcscvcescs 19

United States v. Jannottt, 673 F.2d

STO (Se Cics. T9GRP visi ewes 19,36, 52

United States v. Marin, 513 F.2d 974

oS Us © ae fk ne ee ee 21

United States v. Mattson, 671 F.2d

i Mts. Est ek + rere 20,21,25

United States v. Ovideo, 525 F.2d

881 (Sth Cir. 1976)......6. eas 18

United States v. Perl, 584 F.2d

E3ee. 66h Cie. BOFGs 666600 decease 32,35

United States v. Russell, 411 U.S.

423, 36 L.Ed.2d 366, 93 $.Ce. 1637

ae BAR rrr Tr eer Terr Eee Tee 33

United States v. Santont, 585 F.2d

Ser See CEP. SU er ois saa eh heeees 46,47

United States v. Spagnolo, 546 F.2d

SRET THER CLS. TESTS) 6c ccs oes ves 46,47

United States v. Staszcuk, 517

F.29 53 (7th Cir. i9%3}i«« ae cer ecoe

United States v. Stanford, 547 F.2d

2065 (9th Gir. L976) sce veveewsS cues 17

United States v. Truglio, 731 F.2d

1123. (4th Che. 2904) oniceeaeew wages a0

United States v. Waldron, 590 F.2d

33 {let Cie. LOTS. + oss ex ToT ee 21

Ventimiglia v. United States,

242 F.29 G20. Goth Citi, PSST sues 16

Working Papers of the National

Commission on Reform of Federal

Criminal Laws, Vol. 1, 360 (1970)... 16

OPINIONS BELOW

The published opinion of the fourth

circuit court of appeals decided Novem-

ber 7, 1985, is reproduced in Appendix

at page 39, and the order denying

petitioner's petition for rehearing

filed April 2, 1986, is reproduced in

Appendix at page 58.

JURISDICTION

The fourth circuit's order affir-

ming in part and reversing in part peti-

tioner's convictions in the district

court was filed November 7, 1985, and

the jurisdiction of the Supreme Court is

invoked under §28 U.S.C. 1254(1).

aii

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

Section 1254(1), Title 28 U.S.C.

reads as follows:

"81254 Courts of Appeals; cer-

tiorari; appeal; certified questions.

Cases in the courts of appeals may

be reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari granted

upon the petition of any party to any

civil or criminal case, before or after

rendition of judgment or decree;..."'

Section 1951, Title 18 U.S.C. reads

as follows:

"(a) Whoever in any way or degree

obstructs, or affects commerce or the

movement of any article or commodity in

commerce, by robbery or extortion or

attempts or conspires so to do, or com-

mits or threatens physical violence to

any person or property 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--

(1) The term "robbery" means

the unlawful taking or obtaining

of personal property from the

person or in the presence of

another, against his will, by

means of actual or threatened

force, or violence, or fear of

injury, immediate of future, to

his person or property, or pro-

perty in his custody or possesion,

or the person or property of a

relative or member of his family

or of anyone in his company at

the time of the taking or

obtaining.

(2) The term "extortion" means

the obtaining 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.

(3) The term "commerce" means

commerce within the District of

Columbia, or any Territory or |

Possession of the United States;

all commerce between any point in

a State, Territory, Possession,

or the District of Columbia and

any point outside thereof; all

commerce between points within

the same State through any place

outside such State; and all other

commerce over which the United

States has jurisdiction.

construed to repeal, modify or affect

section 17 of Title 15, sections 52,

101-115, 151-166 of Title 29 or sections

151-188 of Title 45."

Section 371, Title 18 U.S.C. reads

as follows:

"If two or more persons conspire

either to commit any offense against the

United States, or to defraud the United

States, or any agency thereof in any

manner or for any purpose, and one or

more of such persons do any act to

effect the object of the conspiracy,

each shall be fined not more than

$10,000 or imprisoned not more than five

years, or both.

If, however, the offense, the com-

mission of which is the object of the

conspiracy, is a misdeameanor only, the

punishment for such conspiracy shall not

exceed the maximum punishment provided

for such misdemeanor. June 25, 1948, c.

645, 62 Stat. FOI.”

Section 2, Title 18 U.S.C. reads as

follows:

"(a) Whoever commits an offense

against the Unites States or aids,

abets, counsels, commands, induces or

procures its commission, is punishable

as a principal.

(b) Whoever wilfully causes an act

to be done which is directly performed

by him or another would be an offense

against the United States, is punishable

as a principal."

The Fifth Amendment to the

Constitution of the United States:

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or in-

dictment of a grand jury, except in

cases arising in the land or naval for-

ces, or in the militia, when in actual

service in time of war or public danger;

nor shall any person be subject for the

same offence to be twice put in jeopardy

of life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without due

process of law; nor shall private pro-

perty be taken for public use, without

compensation."

The Sixth Amendment to the

Constitution of the United States:

"In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trail, by an impartial

jury of the state and district where the

crime shall have been committed, which

district shall have been previously

ascertained by law, and to be informed

of the nature and cause of the accusa-

tions; to be confronted with the wit-

nesses against him; to have compulsory

process for obtaining witnesses in his

favor, and to have the assistance of

counsel for his defense."

Section 1 of the Fourteenth

Amendment to the Constitution of the

United States:

§ 1. All persons born or natura-

lized in the United States, and subject

to the jurisdiction thereof, are citi-

zens of the United States and of the

state wherein they reside. No state

shall make or enforce any law which

shall abridge the privileges or immuni-

ties of citizens of the United States;

nor shall any state deprive any person

of life, liberty, or property, without

due process of law; nor deny to any per-

son within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Clifford Brantley, then Sheriff of

Jasper County, South Carolina, and Henry

E. Ingram, Jr., a Hilton Head business-

man who held no public office, were in-

dicted in a two count indictment filed

March 21, 1984. The first count alleged

a conspiracy "'to knowingly and willfully

obstruct, delay and affect commerce as

defined by Section 1951(b)(3) of Title

18 of the United States Code and did

attempt so to do, by means of extortion,

in violation of Title 18, United States

Code, Section 1951.'"' The second count

alleged a substantive violation of the

same Hobbs Act. The essence of the

allegations was that Ingram and Brantley

conspired together and that Brantley,

abetted by Ingram, extorted a total of

$2,300.00 in cash from Theodore Domine,

an undercover FBI agent, posing as a

wealthy entrepreneur from Cleveland,

Ohio. Domine, who went by the name Ted

Spinoso during the undercover investiga-

tion, told Ingram and Brantley that he

wanted to run a large-stakes gambling

operation in Jasper County. The indict-

ment alleged that Domine paid Brantley

so that Brantley would allow the gam-

bling enterprise to operate in his

county.

Count two further alleged that

"...-Brantley, aided and abetted by the

defendant Henry E. Ingram, Jr., knowing-

ly and willfully did obstruct, delay

and affect commerce as defined by

Section 1951(b)(3) of Title 18 of the

United States Code, and did attempt to

obstruct, delay and affect commerce by

means of extortion.'' The commerce al-

leged to have been obstructed was the

gambling enterprise established by

Domine and the interstate connection

alleged in the indictment was that the

gambling operation involved the sale of

liquor and use of equipment manufactured

outside the state of South Carolina with

participants from outside the state of

South Carolina.

Both Brantley and Ingram were tried

by a jury drawn from a statewide pool of

jurors over objections from trial coun-

sel rather than from the pool of jurors

within the Charleston Division where the

crimes allegedly occurred and where the

court normally convened.

At the end of the trial on May 18,

1984, both defendants were convicted of

the conspiracy and substantive counts,

Brantley receiving a sentence of five

years and a fine of $2,200.00 on count

one and a sentence of seven years on

count two, the sentence to run concur-

rently, and Ingram receiving concurrent

sentences of four years on each count.

The case was appealed to the fourth

circuit which found that the govern-

ment's evidence at trial was that the

FBI moved its own gambling equipment

from Virginia to South Carolina and had

its agents pretend to gamble and to

purchase whiskey. Because there were no

commercial transactions, the entire

operation was merely a pretense not

affecting interstate commerce. Since

the jurisdictional predicate was not

satisfied, the fourth circuit reversed

the conviction for the substantive

offenses but sustained the convictions

on the conspiracy count.

Petitioner hereby seeks certiorari

through this petition.

REASONS FOR GRANTING WRIT

Certiorari Should Be Granted To

Resolve Conflicts Among The Lower Courts

The validity of the doctrine of

"impossibility" contained in the law of

criminal attempt has been referred to

by this court in Osborn v. United

States, 385 U.S. 323, 333, 17 L.Ed.2d

394, 87 S.Ct. 429 (1966), but no deci-

sion has yet been rendered to resolve

major conflicts among the lower courts.

In addition to the lack of uni-

formity among different jurisdictions,

there appear to be as many differing

opinions from scholars on the law of

attempt which one court said ". .. has

provoked a vast amount of discussion,

more or less learned.'"' United States

v. Darnell, 545 F.2d 595, 597 (8th Cir.

1976) (footnote omitted), cert. denied,

429 U.S. 1104, 51 L.Ed.2d 556, 97 S.Ct.

1134 (1977).

Numerous courts have voiced the

same message as the Darnell court did

at 598 when it said "[t]he problem cries

for legislative solution. Until it

comes the issue lurks in a semantic

swamp.'' See United States v. Hair,

356 F.Supp. 339, 342 (D.D.C. 1978);

People v. Rollino, 37 Misc. 2d 14,

18-19, 22, 233 N.Y.S. 2d 580, 584-86

(1962); Booth v. State, 398 P.2d 863,

872 (Okl. Cr. App. 1964).

Proponents of the Model Penal Code

proposed a revision of the federal cri-

minal code which would have eliminated

legal impossibility as a defense to an

attempt charge as early as 1960.

Tentative Draft No. 10, at 323 (1960),

and the National Commission on Reform of

Federal Criminal Laws has proposed a

general attempt statute, applicable to

every federal offense. Working Papers

of the National Commission on Reform of

Federal Criminal Laws, Vol. 1, 360,

(1970).

In spite of this hue and cry,

Congress has not yet seen fit to elimi-

nate legal impossibility as a defense to

an attempt or conspiracy to violate the

Hobbs Act, 18 U.S.C. §1951.

The circuit courts have reacted

differently in allowing the defense of

legal impossibility to be used by defen-

dants in prosecution under the Hobbs

Act.

The fourth circuit case of Venti-

miglia v. United States, 242 F.2d 620

(1957) has been frequently cited by

other courts in other circuits to

explain the distinction between "legal"

and "factual'’ impossibility. The fourth

circuit held in that case that there can

be no conspiracy to commit a crime when

it is legally impossible to commit the

underlying substantive offense. The

lower court did not mention Ventimi-

glta, which was not a case involving the

Hobbs Act, in the opinion in the case at

bar; rather the court below found that

the approach of the Model Penal Code

§ 5.01(1) (a) (not yet adopted by Con-

gress) would apply to the petitioner

herein, t.e., if the true facts had been

as the defendants believed them to have

been, commerce would clearly have been

affected (App.54).

The court cited the discussion in

United States v. Brooklier, 459 F.Supp.

476, 479-82 (C.D.Cal. 1978), a Hobbs Act

case, as apparent support for the rea-

soning that the defendants had no

defense since the mistake was one of

fact and not one of law. Presumably the

fourth circuit would still afford some

defendants charged with conspiracy the

right to present a legal impossibility

defense if the fact situation was

characterized as a mistake of law.

Such is not the situation in the

ninth circuit which has totally rejected

legal impossibility as a defense to a

charge of conspiracy to commit any

offense against the United States,

characterizing it in one case as

"nonsense." United States v. Stanford,

547 F.2d 1085 (1976); United States v.

Bagnariol, 665 F.2d 877, cert. dented,

456 U.S. 962, 72 L.Ed. 2d 487, 102 S.Ct.

2040 (1981); United States v. Duz-Mor

Diagnostic Laboratory, Inc., 650 F.2d 223

(1982); United States v. Everett, 692

F.2d 596, cert. denied, 460 U.S. 1051,

75 L.Ed.2d 930, 103 S.Ct. 1498 (1982).

However, the ninth circuit has preserved

legal impossibility as a defense to a

charge of attempt, Fverett, supra, by

requiring, as the fifth circuit does,

objective acts to unequivocally corro-

borate the necessary criminal intent,

thereby minimizing possible erroneous

official conclusions about a defendant's

guilty mind.

Whether the test which the fifth

circuit set out in United States v.

Oviedo, 525 F.2d 881, 885 (1976) of ob-

jective acts performed by a defendant to

corroborate criminal intent would apply

in a conspiracy case is not clear since

Oviedo was charged with an attempt to

distribute heroin where the supposed

heroin was in fact a non-controlled

substance. The Oviedo court did not

find the factual and legal impossibility

definitions helpful, and after dis-

cussing how the second and third cir-

cuits had dedlt with two attempt cases,

the fifth circuit court used its objec-

tive basis to determine that the evi-

dence was insufficient to determine

criminal intent. Because the fifth cir-

cuit in the earlier conspiracy case of

United States v. Hunter, 478 F.2d 1019

(1973) discussed merger of an attempt

with the completed crime, there is no

reason to believe that the fifth circuit

would treat a legal impossibility

defense in a conspiracy case any dif-

ferently than it did in Oviedo, supra.

The third circuit in Untted States

v. Berrigan, 482 F.2d 171, 186 (1973), a

case involving attempting to smuggle

letters in and out of a federal prison,

takes the position that ". . . conduct

intended to be prohibited by federal law

must be explicitly prohibited by statu-

tory authority." The court then holds

that ". . . attempting to do that which

is not a crime is not attempting to conm-

mit a crime,"

citing United States v.

Hair, supra. In United States v.

Jamnottt, 675 F.2d 578, 592 (3rd Cir.

1982) the court, in a Hobbs Act

conspiracy case, recognized the legal

impossibility defense but rejected it

because it found that there existed the

requisite nexus to interstate commerce

and the defense was not applicable.

The third circuit in a recent case

discussed the intent of Congress in eli-

minating the impossibility defense where

drug laws were involved and found that

the intent expressed by Congress would

govern the court's interpretation.

"Unlike Berrigan, this case involves a

statute by which Congress intended to

punish attempts even when completion of

the attempted crime was impossible."

United States v. George Everett, 700

F.2d 900 (3rd Cir. 1983).

The seventh circuit in United

States v. Mattson, 671 F.2d 1020 (1982)

came to exactly the opposite conclusion

as the fourth circuit did in the case at

bar. When the seventh circuit found

that the alleged conspiracy did not in

of itself affect interstate commerce,

the court found no federal jurisdiction

and would not permit the convictions to

stand. Matteson, eupra at 1025.

While the seventh circuit did not

discuss Mattson in terms of the legal

impossibility defense, it is obvious

that the court's analysis encompassed

this defense.

The first and second circuits are

in basic agreement concerning attempts

and conspiracies with §5.01(1) of the

Model Penal Code which provides that a

person is guilty of an attempt “if

acting with the kind of culpability

otherwise required for commission of the

crime he [sic]: (a) purposely engaged in

conduct which would constitute the crime

if the attendant circumstances were as

he [sic] believes them to be."' Model

Penal Code §5.01 (proposed official

draft May 4, 1962). United Statee v.

Waldron, 590 F. 2d 33 (lst Cir. 1979);

United States v. Heng Awkak Roman, 356

F. Supp. 434 (S.D.N.Y. 1973) aff'd 484

F. 2d 1271 (2nd Cir. 1973); United

States v. Marin, 513 F. 2d 974 (2nd

Cir. 1974).

The eighth circuit, in determining

whether the legal impossibility defense

was available in an attempted extortion

under the Hobbs Act, discussed the

distinction between factual and legal

impossibility in United States v.

Frazier, 560 F.2d 884, 888 (1977) and

rejected Frazier's assertion because the

situation fell into the factual impossi-

bility category. The eighth circuit's

earlier discussion of the defense

in United States v. Darnell, supra,

indicates that the court would treat

conspiracies in the same manner as other

attempts by making a determination of

whether the situation claimed was a fac-

tual or legal impossibility. Obviously,

this circuit recognizes the defense, but

as in other lower courts, the applicabi-

lity is difficult and confusing.

The eleventh circuit briefly

discussed factual impossibility in a

Hobbs Act conspiracy and attempt case,

but then cited an eleventh and a ninth

circuit case not involving the impossi-

bility defense, and Jannotti, supra,

without giving a clear indication of

whether or not the legal impossibility

defense might be valid in another fac-

tual situation. United States v.

Holmes, 767 F. 2d 820, 824 (11th Cir.

1985). |

The tenth circuit and the sixth

circuit have apparently not ventured

into this complicated area of the law,

but as seen by the cited cases, the

conflict is so substantial that had the

petitioner before the Court been charged

with the same offense in the seventh

circuit's jurisdiction, then his

remaining conviction would have been

reversed. This denial of equal protec-

tion needs to be addressed by the Court,

not only for the petitioner's sake, but

to resolve the tre.utment of this defense

of legal impossibility by the lower

courts.

II, III and IV

Certiorari Should Be Granted

Because The Decision of the Fourth

Circuit Court of Appeals Is Not In

Accord With Applicable Decisions Of This

Court.

The fourth circuit in the case at

bar said, "[t]he defendants were the

victims of false pretense, and the

falsity induced the erroneous assump-

tion. In those circumstances, what the

defendants may have believed is too fra-

gile a connection with commerce to

supply the jurisdictional predicate for

conviction upon the substantive charge

of obstruction by extortionate means."

App.

**KkK

"It was wholly unnecessary for the

FBI to move gambling equipment from

Virginia to South Carolina; or to have

it agents pretend to gamble and to

purchase whiskey. We do not think the

commercial predicate for federal juris-

diction can be found in such pretence on

the part of federal agents."' App.49,50.

The lower court then found that

even though there was no federal juris-

diction for the substantive court

alleging a Hobbs Act violation, the con-

viction of conspiracy to violate the

same Act would stand.

As stated previously, the seventh

circuit reached exactly the opposite

result in Mattson, supra, at 1025:

"This argument, however, overlooks

the point that the alleged conspiracy to

extract money from Anderson did not in

and of itself affect interstate

commerce."

***

"The Hobbs Act requires that

interestate commerce be affected by

extortion, not by a result of extortion;

there must be a nexus between extortion

and interstate commerce before federal

jurisdiction is present."

The court then reversed the convic-

tion due to a lack of federal jurisdic-

tion.

This Court stated quite clearly in

United Stateé v. Feola, 420 U.S. 671,

695, 696, 43 L.Ed.2d 541, 559, 95 S. Ct.

1255 (1975) that the operative fact

investing federal jurisdiction, regard-

less of the defendant's perception, was

the victim's status as a federal officer:

"...The jurisdictional requirement

is satisfied by the existence of facts

tying the proscribed conduct to the area

of federal concern delineated by the

statute. Federal jurisdiction always

exists where the substantive offense is

committed in the manner therein

described, that is, when a federal

officer is attacked. Where, however,

there is an unfulfilled agreement to

assault, it must be established whether

the agreement, standing alone, consti-

tuted a sufficient threat to the safety

of a federal officer so as to give rise

to federal jurisdiction. If the

agreement calls for an attack on an

individual specifically identified,

either by name or by some unique charac-

teristic, as the putative buyers in the

present case, and that specifically

identified individual is in fact a

federal officer, the agreement may be

fairly characterized as one calling for

an assault upon a federal officer, even

though the parties were unaware of the

victim's actual identity and even though

they would not have agreed to the

assault had they known that identity.

Where the object of the intended attack

is not identified with sufficient speci-

fictty so as to give rise to the conclu-

ston that had the attack been carried

out the victim would have been a federal

officer, it ts impossible to assert that

the mere act of agreement to assault

poses a sufficient threat to federal

personnel and functions so as to give

rise to federal jurisdiction. [Emphasis

added. }

Where there is not even a probable

effect on interstate commerce, how has

the government carried its burden to

prove federal jurisdiction?

United States v. Staszcuk, 517 F.

2d 53, 59, 60 (7th Cir.) (en bane),

cert. denied, 423 U.S. 837, 96 S. Ct.

65, 46 L. Ed. 2d 56 (1975) cited by the

fourth circuit in its opinion held

"...that the commerce element of a Hobbs

Act violation--the federal jurisdic-

tional fact--may be satisfied...by

showing a realistic probability that an

extortionate transaction will have some

effect on interstate commerce."

(Footnote omitted.) The Staszcuk court

at 59 emphasized that the prosecutor was

required in every Hobbs Act case ''to

prove some connection with interstate

commerce....''. (Emphasis added.)

By not requiring this proof in the

case before the court, the fourth cir-

cuit has departed from the law as

interpreted by this Court and other

lower courts.

III

The Sixth Amendment provides an

accused the right to a jury trial "...in

the state and district where the crime

shall have been committed which district

shall have been previously ascertained

br Lawecce”

The purpose of the Jury Selection

and Service Act of 1968 can be found in

section 1861, 28 U.S., which states:

"It is the policy of the United

States that all litigants in Federal

courts entitled to trial by jury shall

have the right to grand and petit juries

selected at random from a fair cross-

section of the community in the district

or division wherein the court convenes

.'' As amended March 27, 1968

The definition of "division" in

81869 Title 28 U.S.C. is:

"(1) one or more statutory divi-

sions of a judicial district; or (2) in

statutory divisions that contain more

than one place of holding court, or in

judicial districts where there are no

statutory divisions, such counties,

parishes, or similar political sub-

divisions surrounding the places where

court is held as the district court plan

shall determine: Provided, That each

county, parish, or similar political

subdivision shall be included in some

such division."

Several courts have discussed the

requirements of the Jury Selection and

Service Act relating to arbitrary enfor-

cement of court plans and constitutional

mandates pertaining to a cross-section

of the community drawn from a division.

Dupoint v. United States, 388 F. 2d 39

(5th Cir. 1968); United States v.

Truglio, 731 F.2d 1123 (4th Cir. 1984);

United States v. Fernandez 480 F. 2d

726, 734 (2nd Cir. 1973).

Before the trial of the petitioner

began, the chief judge of the district

court of South Carolina, apparently sue

sponte, issued an order that the jury

for the trial of petitioner's case be

drawn from a statewide jury box, rather

than from a divisional jury box, namely

the Charleston Division box, in which

division the defendants resided and in

which the crime was alleged to have

taken place.

Trial counsel objected to this pro-

cedure and produced evidence that indi-

cated a substantial reduction of

non-white qualified jurors in the sta-

tewide jury panel versus the Charleston

Division panel. Both the trial judge

and the fourth circuit found no merit in

petitioner's motion to have the jury

drawn from the Charleston Division.

The Sixth Amendment could not be

much clearer in spelling out exactly

what the government must do when

selecting a jury.

This Court, in a long line of

cases, has assumed that juries will be

representative of the community of the

accused, Smith v. Texas, 311 U.S. 128,

85 L. Ed. 84, 61 S. Ct. 164 (1940);

reasonably reflect a cross-section of

the population, Brown v. Allen, 344 U.S.

443, 97 L. Ed. 469, 73 S. Ct. 397

(1953); Carter v. Greene County, 396

U.S. 320, 24 L. Ed. 2d 549, 90 S. Ct.

518 (1970); Taylor v. Louisiana, 419

U.S. 522, 42 L. Ed. 2d 690, 95 &. CK.

692 (1975); Duren v. Missouri, 439 U.S.

357, 58 L. Ed. 2d 579, 99 S. Ct. 664

(1979).

Also, this Court has said that a

criminal defendant of any race has

standing to challenge the jury selection

process as unconstitutionally excluding

Negroes upon denial of due process

grounds, Peters v. kiff, 407 U.S. 493,

33 L. Ed. 246 63, 92 &. CE. ZiGS Ciera

Petitioner would urge the Court to

correct the denial of his Sixth

Amendment rights.

While the fourth circuit stated

that there was insufficient evidence to

charge entrapment in the case at bar,

that decision does not conform to the

fourth circuit's holding in United

States v. Perl, 584 F. 2d 1316, 1321

(1978) and earlier fourth circuit cases;

nor is the ruling of the lower court in

accord with decisions of this Court

involving entrapment.

This Court first recognized the

defense of entrapment in Sorrells v.

United States, 287 U.S. 435, 448, 77 L.

Ed. 413, 53 S. Ct. 210 (1932) when Chief

Justice Hughes wrote:

"We are unable to conclude that it

was the intention of the Congress in

enacting [a criminal] statute that its

processes of detection and enforcement

should be abused by the instigation by

government officials of an act on the

part of persons otherwise innocent in

order to lure them to its commission and

to punish then."

The Sorrells Court was sharply

divided over whether the issue was a

matter for the jury or the court, and

when the Court considered the defense

again twenty-five years later in

Sherman v. United States, 356 U.S. 369,

377 2 L.Ed.2d 848, 78 S. Ct. 619

(1958), the nature of the defense was

further explained. The majority,

speaking through the Chief Justice,

found entrapment as a matter of law and

noted that the circuit courts, when pre-

sented with this issue, had, since

Sorrells, unanimously concluded that

"unless decided as a matter of law, the

issue of whether a defendant has been

entrapped is for the jury."

The 5 to 4 decision in U.S. v.

Russell, 411 U.S. 423, 426 36 L. Ed. 2d

366, 93 S. Ct. 1637 (1973) upholding the

conviction said that creative involve-

menc by government agents is not a

defense which may be asserted by a pre-

disposed defendant as a matter of law

and let stand the jury's decision after

a charge by the trial judge which

instructed the jury to acquit the defen-

dant if a reasonable doubt existed as to

"...whether the defendant had the pre-

vious intent or purpose to commit the

offense...and did so only because he was

induced or persuaded by some officer or

agent of the government."

By a 5 to 3 decision, this Court in

Hampton v. United States, 425 U.S. 484,

48 L. Ed. 2d 113, 96 S. Ct. 1648

(1976), ruled that the entrapment

defense did not apply as a matter of

law, and the trial judge was correct in

not giving a charge to the jury based

upon the facts before the Court.

In the case at bar, the petitioner

took the stand and admitted some of the

allegations explaining that he did not

understand why those actions were

against the law and if his testimony

were taken as the truth, he established

an entrapment defense. After the trial

judge refused to charge the jury on

entrapment and after the jury had de-

liberated for approximately an hour, the

jury returned to the courtroom and the

following exchange occurred:

JUROR: May I ask one question of

the Court, sir?

THE COURT: All right, sir.

JUROR : . Pertaining to our proce-

dure?

THE COURT: Yes, sir.

JUROR : It's come to the forefront

in there, possibility of

entrapment in this pro-

ceeding. Is that to be

considered in any way?

THE COURT: No, sir, entrapment is not

an element for you to con-

sider.

JUROR : Thank you.

(Jury Excused.)

The fourth circuit in Peri, supra,

at 1321, simply held that "...in order

to assert the defense of entrapment in a

federal prosecution, [a defendant] must

produce evidence of government involve-

ment in the scheme to entrap."

The petitioner contends that this

is a reasonable requirement and once the

scheme of the government agent is

established, then the burden would shift

to the government to convince the jury

beyond a reasonable doubt that there was

no entrapment using the Sorrells formula.

Certainly in petitioner's case, he pro-

duced evidence through inconsistencies

in the FBI agent's testimony that sup-

perted his version of what happened, so

much so that the jury thought there was

an issue as to entrapment, even though

no charge had been given.

In these days of frequent use of

FBI agents as agent provocateurs,

Judge Aldisert's remarks are the most

persuasive argument petitioner can find

to beseech this Court to grant his peti-

tion.

"Popular opinion may not care

greatly about the fates of those

entrapped and convicted by the govern-

ment and its agents provocateur, but

federal judges must care about the sword

that is plunged into the body of trust

between a people and their government.

That body can withstand only so many

wounds before its life will be no more."

United States v. Jannottt, supra at 623

(Aldisert, J. dissenting)

CONCLUSION

For the foregoing reasons, peti-

tioner asks that this petition for writ

of certiorari be granted.

May 29, 1986 Respectfully submitted,

LA MW

Bob Warren

117D Cherry Street

Black Mtn., NC 28711

(704) 669-5709

COUNSEL FOR PETITIONER

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-5233

‘United States of America,

versus

Clifford Brantley,

No. 84-5234

United States of America,

versus

Henry E. Ingram, Jr.,

No. 84-6674

United States of America,

versus

Clifford Brantley and

Henry E. Ingram, Jr.,

Appellee,

Appellant.

Appellee,

Appellant.

Appellee,

Appellants.

Appeal from the United States District

Court for the District of South

Carolina, at Columbia. William W.

Wilkins, Jr., District Judge. CR 84-56

Argued March 5, 1985

Decided November 7, 1985

Before HALL and MURNAGHAN, Circuit

Judges, and HAYNSWORTH, Senior Circuit

Judge

Robert B. Wallace; Glenn B. Hester (Paul

E. Tinkler; Wallace and Wallace; J.

Robert cooper; Law Offices of J. Robert

Cooper of brief) for Appellant; John

McIntosh, Assistant United States

Attorney (Dale L. Dutremble, Assistant

United States Attorney; Henry Dargan

McMaster, United States Attorney; John

R. McGravy, III, Third Year Law Student

on brief) for Appellee.

HAYNSWORTH, Senior Circuit Judge:

The defendants were convicted of

extortion in violation of the Hobbs Act,

and of conspiracy to commit extortion in

violation of that statute. Since the

only claimed actual effect upon inter-

state commerce was pretensive activity

by FBI agents, we reverse the convic-

tions of the substantive offenses but

affirm the convictions on the conspiracy

count.

An FBI agent named Domine was sent

from Cleveland, Ohio to investigate, in

an undercover capacity, a report of

corruption on the part of a state

magistrate on Hilton Head Island, South

Carolina. He pretended to be interested

in opening and operating a gambling den,

for which he would need some protection

from law enforcement officials. He met

the defendant Ingram who, among other

things, owned and placed gambling devi-

ces known as poker machines. They dis-

cussed the possibility of Domine renting

a vacant restaurant on Hilton Head

Island and of insulating an illegal

gambling operation from intrustion by

law enforcement officials. It turned

out that the vacant restaurant was una-

vailable on a short term basis, but

Ingram, who had grown up in Jasper

County, South Carolina and sometimes

dabbled in real estate, told Domine of a

vacant restaurant in Hardeeville, Jasper

County, South Carolina, which he thought

appropriate for Domine's purpose.

Brantley, the sheriff of Jasper County,

was a friend of Ingram's, and Ingram

assured Domine that Brantley would pro-

tect the illegal gambling operation if

paid $500 a month. Ingram also sug-

gested that Domine give Brantley $200

during the first meeting to demonstrate

his good intentions about later

payments.

Domine and Ingram visited Brantley

in his office in Ridgeland, the county

seat of rural Jasper County. Domine

explained his intention to rent the

restaurant building and, once a month,

bring in people from such cities as

Cleveland, New York and Chicago for

gambling at very high stakes. Brantley

expressed approval of the proposal,

though he insisted that local people not

be involved. At the conclusion of the

meeting, Ingram gave the sheriff $200

which Domine had provided for that pur-

pose.

Domine rented the building on a

monthly basis. Gambling tables and

equipment were brought down from the FBI

training academy in Quantico, Virginia

and installed in the club. Thereafter,

once a month for the next four months,

six to eight FBI agents were assembled

at the club. They gambled, but with

money supplied by the FBI. They con-

sumed alcoholic beverages that had been

provided by the FBI, and they "paid" for

their drinks with money furnished by the

FBI.*

In each of those four months,

* The liquor at the bar was in large

bottles. In South Carolina, licensed

restaurants and lounges may sell alcoho-

Lic beverages for consumption on the

premises, but only in mini-bottlee, such

as those used on tue airlines. This

"alub" was unlicensed.

Domine met with Sheriff Brantley. He

told the sheriff that he was operating

the gambling casino as he had planned

and, each time, gave the sheriff $500.

On more than one of those occasions, the

sheriff stated that it was unnecessary

for Domine to pay him anything, or that

Domine owed him nothing, but he accepted

the money on each occasion.

Ir.

Though what was done at the club

was blatant sham, the government con-

tends that it supplied the necessary

effect upon commerce. The gambling

equipment had been transported from

Virginia. The whiskey had moved in

interstate commerce for there is no

licensed distillery in South Carolina.

Some of the agents may have come from

other states.

These, however , were not commercial

transactions. The FBI transported its

own gambling devices from Virginia to

South Carolina, but they were not the

subjects of commercial transactions.

The whiskey had moved in interstate com-

merce, but the FBI made no commercial

use of it. It simply provided the

assembled agents with free drinks. If

the FBI's use of the whiskey had been

reasonably necessary or appropriate, its

previous movement in interstate commerce

may well have supplied the jurisdic-

tional effect upon commerce, but such an

effect may not be found in pretense and

contrivance. If some of the assembled

agents came from cther states, that was

of no moment. See Rewis v. United

States, 401 U.S. 808, 811-12 (1971).

The fact is that nothing ever happened

at the club except pretense.

One violates the Hobbs Act, 18

U.S.C.A. § 1951, when he "obstructs,

delays, or affects commerce...[by]

extortion,"

and, by definition, the com-

merce affected must be interstate con-

merce or commerce with or within the

District of Columbia or a United States

territory or possession. Id. at §

1951(b)(3). The jurisdictional predi-

cate may be satisfied though the impact

upon commerce is small, and it may be

shown by proof of probabilities without

evidence that any particular commercial

movements were affected. Thus, in

United States v. Santoni, 585 F.2d 667

(4th Cir. 1978), it appeared that the

FBI had set up a corporation to solicit

business cleaning public buildings in

Baltimore, Maryland where corruption was

suspected. The cleaning corporation

actually received a contract to clean a

public building, and, as required by the

contract, it purchased and used a clean-

ing compound manufactured in Pennsyl-

vania. It also leased and brought into

the state scaffolding necessary for the

work. Use of the cleaning compound and

the scaffolding were held enough to

satisfy the commerce requirement. Id.

at 671.

In United States v. Spagnolo, 546

F.2d 1117 (4th Cir. 1976), we held that

an effect upon commerce could be proven

by proof of probabilities. There a co-

owner of a construction firm had been

forced at gunpoint to sell his half

interest in the business. His removal

as an officer of the business was held

to have had such a probable effect on

interstate commerce that the jurisdic-

tional predicate was satisfied, though

there was no attempt to prove that

identified shipments in commerce were

affected. Jd. at 1119.

In those cases, however, there was

a strong element of reality in the com-

mercial aspect of the activity. In

Santont, the contract required the pur-

chase and use of a cleaning compound

manufactured in Pennsylvania, and the

necessary scaffolding was actually pro-

cured out of state. In Spagnolo, it was

highly probable that the withdrawal of

the "financial source" of the construc-

tion company would affect commerce in

countless ways, for the effect of the

conduct of such a business on commerce

varies with the volume and nature of the

construction work. There is nothing in

those cases, however, to suggest that

the necessary commercial connection may

be shown by producing a child of

fantasy.

It may be enough that the parties

intended to complete a transaction which

would have affected commerce, though

their intention was frustrated. In

United States v. Staszcuk, 517 F.2d 53

(7th Cir.) (en banc), cert. denied, 423

U.S. 837 (1975), with the help of a

bribe of a city councilman, a zoning

change was procured to permit the erec-

tion and operation of an animal hospi-

tal. Later, after obtaining bids on the

construction, the owner concluded that

construction of an animal hospital was

not feasible, and the land was put to a

use permitted by the earlier zoning. It

was held that it was enough that con-

merce would have been affected if the

project had been carried through to con-

clusion as contemplated when the zoning

change was effected. In that case, of

course, there was nothing pretensive

about the representation of the owner;

he simply had underestimated his pro-

jected costs when he procured the zoning

change. That case does not suggest that

the requisite effect upon commerce may

be found in pretense.

The Hobbs Act proscribes inchoate

offenses as well as actual obstructions

of commerce. When we come to the con-

victions on the conspiracy count, the

perspective will not be the same, but we

do not think the convictions of the

substantive offenses may be sustained on

the basis of the defendant's mistaken

assumption that commerce would be affec-

ted. The defendants were the victims of

false pretense, and the falsity induced

the erroneous assumption. In those cir-

cumstances, what the defendants may have

believed is too fragile a connection

with commerce to supply the jurisdic-

tional predicate for conviction upon the

substantive charge of obstruction by

extortionate means.

We are influenced by another con-

sideration: that federal agents may

not manufacture jurisdiction by con-

trived or pretensive means. In United

States v. Archer, 486 F.2d 670 (2d Cir.

1973), the Court of Appeals for the

Second Circuit held that a violation of

the Travel Act, 18 U.S.C.A. §1952, may

not be shown when the jurisdictional

predicate was an unnecessary interstate

telephone call placed by one of the

agents. The court held that when the

jurisdictional predicate is based upon

acts of undercover agents, the matter

should be examined with greater than

ordinary care, and that contrived acti-

vity by such agents may not satisfy the

requirement. Id. at 681-82; c.f. United

States v. Gambino, 566 F.2d 414, 419 (2d

Cis. 4977 3%

It was wholly unnecessary for the

FBI to move gambling equipment from

Virginia to South Carolina, or to have

its agents pretend to gamble and to

purchase whiskey. We do not think the

commercial predicate for federal juris-

diction can be found in such pretense on

the part of federal agents. Nor do we

think the conviction for the substantive

offenses may be sustained on any theory

of the subjective intention of the

defendants or the effect of their con-

duct on commerce if they themselves had

not been the victims of false represen-

tations and the club had been opened and

operated as the undercover agent had

represented.

The defendants were also convicted

of conspiracy to violate the Hobbs Act,

and in those convictions we perceive no

infirmity. The statute not only pro-

scribes extortion affecting commerce; it

expressly extends its prohibition to one

who attempts or conspires to affect com-

merce by extortionate means. 28 U.S.C.A.

§ 1951l(a).

As with other conspiracies, a con-

viction of conspiring to obstruct com-

merce in violation of the Hobbs Act may

be founded upon proof of an agreement to

engage in conduct which would violate

the statute. Though proof of some overt

act in furtherance of the conspiracy may

be required, proof that its purpose was

accomplished is not. Unlawful conspira-

cies may be frustrated or aborted for a

variety of reasons, including the inter-

vention of law enforcement officials

before the unlawful purpose is accom-

accomplished. Failure of its purpose,

however, can never legitimate an unlaw-

ful conspiracy to commit a crime. Thus

it was held in Ladner v. United States,

168 F.2d 771, 773 (Sth Cir. 1948), that

the defendants were properly convicted

of conspiring to violate the predecessor

of the Hobbs Act though the victim

refused to pay the toll. See e.g.

United States v. Jannotti, 673 F.2d 578

(3d Cir.), (en banc), cert. denied, 457

U.S. 1106 (1982), subsequent appeal, 729

F.2d 213 (3d Cir.), cert. denied 105

S.Ct. 243 (1984); United States v.

Brooklier, 459 F. Supp. 476 (C.D. Cal.

1978).

In Jannottt, it appeared that

undercover agents purporting to repre-

sent a fictious Arab sheik represented

to influential members of Philadelphia's

city council that the sheik proposed to

build a hotel of substantial size in

Philadelphia, but that he would make no

commitment to the project unless he had

in advance satisfactory assurance that

he would encounter no problem in obtain-

ing necessary zoning variances and auto-

mobile traffic re-routing and would not

be hindered or delayed by unreasonable

enforcement of building codes or regula-

tions. The councilmen gave such

assurances and accepted substantial

payments in exchange for then.

Though the sheik and the proposed

hotel were entirely fictitious, the

majority of the en bane court held that

the necessary effect upon commerce had

been shown. The majority disclaimed a

holding that the commercial connection

could be found in the subjective inten-

tions of the defendants that commerce be

affected but, drawing on Staszcuk,

concluded that "the defendants' conduct

constituted a sufficient threat to

interstate commerce so as to implicate

an ‘area of federal concern' sufficient

to give rise to federal jurisdiction."

673 F.2d at 592.

In Brooklier, 459 F. Supp. 476

(C.D. Cal. 1978), it appeared that the

FBI had set up a shell corporation which

purported to be engaged in the exporta-

tation of pornographic films to Mexico

and South America. The indictment al-

leged that the defendants demanded and

obtained $6,500, believing the victim to

be a private corporation engaged in an

illegal enterprise. The indictment

charged them with an attempt to violate

the Hobbs Act. The court denied a motion

to dismiss and, in a comprehensive opi-

nion, held that the defendants could be

convicted of the attempt charge if the

allegations of the indictment were pro-

ven. Commerce would have been affected

if the facts had been as the defendants

believed them to have been, and the fact

that an effect upon commerce was impos-

sible in light of the true facts was no

defense, since the defendants' misappre-

hension was a mistake of fact and not one

of law. Id. at 479-82.

Upon a charge of a conspiracy or an

attempt to violate the Hobbs Act, it is

simply irrelevant that, because of facts

unknown to the conspirators or to the

actor, an actual effect upon commerce

was impossible.

This is consistent with the general

rule applicable to inchoate offenses.

Though the circumstances may be misap-

prehended, if one "purposely engages in

conduct which would constitute the crime

if the attendant circumstances were as he

believes them to be,'' the actor is guilty

of a criminal attempt. Model Penal Code,

§ 5.01(1)(a). The same principle is ap-

plicable when two or more persons con-

spire to engage in the conduct. The

facts may be taken to be as the conspira-

tors believed them to be.

In this case, there was abundant

proof that Brantley and Ingram entered

into a conspiratorial agreement to vio-

late the Hobbs Act. Brantley accepted

the initial extortionate payment from

Ingram and subsequent ones from Domine.

If the true facts had been as they

believed them to have been, commerce

would clearly have been affected.

This was not the case of a local

enterprise that might now and then have

been patronized by residents of other

States. The scheme as described to the

defendants was to bring down people from

large northern cities for high stakes

gambling. Patronage of non-residents

was to be sought, while local people

were to be excluded from participation.

Such an operation would have been the

cause of interstate travel by many, if

not all, of the patrons of the establish-

ment. See Rewis v. United States, 401

U.S. 808, 813-14 (1971). That travel

would have had an impact upon public

transportation facilities and local

hostelers. It would have occasioned the

local consumption of food and drink,

some of which would have moved in inter-

state commerce. The conduct in which the

conspirators thought they were engaged

would have had more than an adequate

effect upon commerce to constitute a

violation of the Hobbs Act. Brantley and

Ingram were the victims of pretense in

the description of the project, but that

does not sanitize their purpose or their

willing participation in a conspiracy to

violate the Hobbs Act.

IV.

We find no merit in any of the