Opposition Brief — Wright v. United States

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No. 86-1127

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OCTOBER TERM, 1986

PATRICK H. WRIGHT, JR., AND

WILLIAM E. ARMSTRONG, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the government proved that petitioners’ extor-

tionate conduct affected commerce, as required by the

Hobbs Act, 18 U.S.C. 1951(a).

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ......... 7

Stirone v. United States, 361 U.S. 212 (1960) ........... 7, 10

United States v. Anderson, 809 F.2d 1281 (7th Cir.

ay ea 9, 10, 11, 13

United States v. Angelilli, 660 F.2d 23 (2d Cir. 1981), cert.

I TO MED occu eh sane nsec cds viele 8, 10

United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981),

Soe SE ER e+, rr 9, 10

United States v. Billups, 692 F.2d 320 (4th Cir. 1982),

cert. denied, 464 U.S. $20 (1963) ... 2... eee 8, 11

United States v. Boulahanis, 677 F.2d 586 (7th Cir.), cert.

ER RE 0 13-14

United States v. Brantley, 777 F.2d 159 (4th Cir. 1985),

cert. denied, No. 85-2003 (Oct. 6, 1986) ............. 11

United States v. Culbert, 435 U.S. 371 (1978) ........... 7,10

United States v. Darby, 312 U.S. 100 (1941)... 2. ....... 7

United States v. Elders, 569 F.2d 1020 (7th Cir. 1978) .... i3

United States v. Harding, 563 F.2d 299 (6th Cir. 1977),

cert, Gemeen, 4546 U.S. 1062 (1978) .. 2... eee 8

United States v. Lewis, 797 F.2d 358 (7th Cir. 1986) ..... 11

United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982) .. 12,

13, 14

United States v. Merolla, 523 F.2d 51 (2d Cir. 1975) ..... 10

United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985),

cert. denied, No. 85-924 (Feb. 24, 1986) ............. HZ, 13

United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978),

cert. denied, 439 U.S. 1116 (1979) .................. 8

United States v. Starks, 515 F.2d 112 (3d Cir. 1975) ..... 8

United States v. Staszcuk, 517 F.2d 53 (7th Cir.), cert.

RM oe) 12

(II1)

Cases — Continued: Page

United States v. Tuchow, 768 F.2d 855 (7th Cir. 1985)... 8

United States v. Zemek, 634 F.2d 1159 (9th Cir. 1980), |

cert. denied, 450 U.S. 985 (1981) ................... 8

Statute:

Hobbs Act:

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Jn the Supreme Court of the Anited States

OCTOBER TERM, 1986

No. 86-1127

PATRICK H. WRIGHT, JR., AND

WILLIAM E. ARMSTRONG, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-21a)

is reported at 797 F.2d 245. The opinion denying rehearing

(Pet. App. 22a-23a) is unreported. The opinion of the

district court (Pet. App. 24a-32a) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. la-21a)

was entered on August 18, 1986, and a petition for rehear-

ing was denied on November 6, 1986 (Pet. App. 22a-23a).

The petition for a writ of certiorari was filed on January 5,

1987. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. Following a bench trial in the United States District

Court for the Western District of Louisiana, petitioners

were convicted of extorting money under color of official

(1)

2

right, in violation of the Hobbs Act, 18 U.S.C. 1951, and

of conspiracy to commit that offense. They were each

sentenced to two years’ imprisonment. The court of ap-

peals affirmed (Pet. App. la-21a).

The evidence at trial showed that before 1980 petitioner

Wright was the City Attorney for Monroe, Louisiana. He

hired petitioner Armstrong as an assistant city attorney. In

July 1980, Wright resigned from his position to enter

private practice. That practice included the defense of

“driving while intoxicated” (DWI) cases; Wright

represented clients in numerous DWI cases that were pros-

ecuted by Armstrong. Armstrong remained an assistant

city attorney until he was removed in March 1984. Be-

tween late 1980 and mid-1983, Armstrong was the only

assistant city attorney handling traffic offenses. Pet. App.

2a.

In November 1980, one William Burns was involved in

an automobile accident with a large tanker truck. Burns

suffered serious injuries and was rushed to the hospital. A

blood sample taken from him at the hospital revealed that

he was intoxicated at the time of the accident. Tr. 50-52.

An arrest warrant was sworn out for Burns in December

1980. When Burns heard that there was a warrant out-

standing for his arrest, he contacted Armstrong to inquire

about it. In the course of their conversation, Armstrong

suggested that Burns retain a lawyer to institute a civil ac-

tion against the owner and operator of the tanker truck.

Armstrong suggested Wright as an attorney for Burns to

retain in connection with his civil action.' Burns later re-

' Armstrong testified that Wright’s name was only one of several

names he gave to Burns (Tr. 1472-1473). However, the government in-

troduced a transcript of the initial client interview between Burns and

Wright (GX G24), which reflected that Wright and Armstrong had

already discussed the Burns case, including Burns’s medical expenses

and his blood alcohol level (GX G24, at 6, 16; Gov’t C.A. Br. 33-34).

This evidence suggests that Armstrong may have sent Burns specifical-

ly to Wright.

tained Wright’s law firm on a one-third contingent-fee

basis to represent him in the civil action. Burns’s lawsuit

was filed in May 1981 and was handled almost entirely by

an associate of Wright’s. After the court in the civil suit

entered an order upholding the admissibility of the results

of Burns’s blood alcohol test showing him to have been in-

toxicated at the time of the accident, the case was settled

for $35,000. Pet. App. 3a.

Burns was never prosecuted for DWI. By March 1982,

Armstrong had recalled the warrant, ostensibly because

the charges against Burns had lapsed under Louisiana law.

Pet. App. 3a.

After the settlement was agreed upon, Wright told his

associate who was handling the case that Armstrong was

to receive a referral fee of approximately one-third of the

attorney’s fee. When the associate protested, Wright spoke

to Armstrong, and the two agreed that Armstrong would

take $3,000.2 Burns ended up receiving approximately

$21,000, after expenses, and Wright’s law firm paid Arm-

strong the $3,000 “referral fee.” Pet. App. 3a-4a.

2. At trial, in order to establish that the extortion af-

fected interstate commerce, as required by the Hobbs Act,

the government introduced, inter alia, detailed testimony

of Robert Voas, an expert in the field of alcohol and

highway safety (Tr. 911-969). Voas testified that “[m]Jost

injurious crashes [are] strongly related to alcohol” (Tr.

926), and he indicated that the annual cost of alcohol-

related automobile accidents is about $24 billion (Tr.

929-930). He stated (Tr. 947) that in his opinion, the

failure to prosecute DWI cases results in more accidents

2 The government’s theory at trial was that the payment was in ex-

change for Armstrong’s not prosecuting Burns for DWI. Petitioners’

theory at trial was that Armstrong received his share of the total at-

torney’s fee simply for giving Burns a list of the names of possible at-

torneys, a list that included Wright’s name.

4

on the nation’s highways. With respect to an individual

who is charged with DWI, Voas explained, such a person,

“by virtue of having been arrested is known to research as

having a higher risk in the future from that point on as

compared to any other average driver of being involved in

an accident [and] of being arrested in the future for drunk

driving” (Tr. 938). Voas noted (Tr. 939) that if someone is

convicted and has his license taken away, his chances of

being in a DWI accident in the future are significantly

reduced. Similarly, individuals who are arrested and con-

victed of DWI are more likely to obtain treatment and

thereby reduce their risk of being involved in future DWI

accidents (Tr. 939-940). Voas also testified (Tr. 944,

960-961) that if individuals are arrested for DWI and are

not prosecuted, the deterrent effect of drunk driving laws

is reduced. Moreover, Voas explained that even ina single

case, the individual whose case is dismissed is thereby less

deterred by the drunk driving laws, and others who know

that person and learn of the dismissal will be less deterred

as well (Tr. 946-947). In addition, Voas testified, the

failure to bring DWI prosecutions where there is sufficient

evidence to convict lowers the morale of police officers,

and they are less inclined to make DWI arrests in the

future (Tr. 945-946). Pet. App. 6a-7a.3

> The government also offered testimony of two other witnesses on

this issue. Norman McPherson, a program coordinator with the Na-

tional Highway Traffic Safety Administration, testified that his agen-

cy’s strategy to get drunk drivers off the road is to establish a percep-

tion that drunk drivers will be prosecuted and convicted (Tr. 970,

972). Hodges Walker, an insurance consultant, testified that the in-

surance premium of someone who has been convicted of DWI will be

“meh higher” than that of someone who does not have such a convice-

tion (Tr. 975, 990).

In addition, an attorney defending the civil action brought by Burns

testified that the prosecution of Burns for DWI “would have been one

of the more important considerations we would have placed on at-

tempting to settle the case” (Tr. 146-147, 183). Indeed, the defense

Crediting Voas’s testimony, the district court found that

the failure to prosecute the Burns DWI case had “an ob-

vious and accumulated effect on interstate commerce”

(Pet. App. 31a).

3. On appeal, petitioners argued that the district

court, sitting as the trier of fact, erred in finding that the

alleged extortion affected interstate commerce within the

meaning of the Hobbs Act. At the outset, the court of ap-

peals noted that “the impact on interstate commerce need

not be substantial to meet the statutory requirement” and

that “fa]ll that is required is that commerce be affected by

the extortion ‘in any way or degree’ ” (Pet. App. 6a (cita-

tions omitted)). The court went on to conclude (/d. at 7a)

that because the district court credited Voas’s testimony,

“(petitioners’] argument that the government has over-

reached itself by prosecuting acts having an insufficient

nexus with interstate commerce must be rejected.” The

court added (ibid.) that the district court’s decision to

credit Voas’s testimony was not clearly erroneous. °

attorneys handling the case “made repeated inquiries of Armstrong

about the status of the criminal charges against Burns” (Pet. App.

27a-28a). The district court found (id. at 28a) that “[o]bviously the

progress of [the] criminal matter was of interest to the attorneys in the

civil case and might have had an effect upon it or its outcome.” The

court noted (id. at 27a) that Armstrong “use[d] his office in a manner

which could have affected the outcome of the civil case.”

4 In addition, the district court (Pet. App. 26a-27a) rejected peti-

tioners’ claim that the $3,000 paid to Armstrong was simply a referral

fee. It noted that (i) Armstrong had no client to refer to Wright’s law

firm: (ii) Burns was not aware of the arrangement; (iii) acceptance of a

referral fee was a conflict of interest on Armstrong’s part; and (iv)

there was no agreement between Armstrong and Wright (or between

Armstrong and Wright’s law firm) providing for a tee for referrals.

‘ The government offered additional reasons why the extortion at-

fected interstate commerce. For example, it argued (Tr. 1755; Gov't

C.A. Br. 43-43a) that as a result of the dismissal of Burns’s DWI case

6

Judge Brown dissented. Notwithstanding his belief that

petitioners’ conduct was “undoubtedly unethical, probably

criminal, and should be not be tolerated in a democratic

society,” he concluded that the connection between the

dismissal of Burns’s DWI case and interstate commerce

was insufficient to support the jurisdictional requirement

of the Hobbs Act (Pet. App. 20a-21a).°¢

and the law firm’s payment of $3,000 to Armstrong, the law firm,

which had an interstate practice, was left with less money. It also

argued (Tr. 1755-1756; Gov’t C.A. Br. 43-44, 46) that the insurer of

the tanker truck (an interstate carrier) paid a larger settlement as a

result of the dismissal of Burns’s DWI case. And it argued (Tr. 1756;

Gov't C.A. Br. 44) that commerce was affected by the dismissal of the

DW' case because of the relationship between drunk driving accidents

and insurance premiums. Petitioners argued that those asserted links

to interstate commerce had not been listed in the indictment and

therefore could not be relied upon (Pet. App. 8a). The government

disagreed, arguing that the allegations in the indictment were suffi-

ciently broad to encompass any effect on interstate commerce flowing

trom the extortion (Gov't C.A. Br. 45-46). Both the trial court and the

court of appeals viewed Voas’s testimony as adequate and therefore

did not examine these additional links to commerce.

In addition to finding a sufficient nexus to commerce, the court of

appeals rejected petitioners’ claim that the evidence was insufficient to

Support their convictions. With respect to Armstrong, it noted (Pet.

App. 9a) that the district court had found that Armstrong recalled

Burns’s arrest warrant and gave “different excuses at different times”

as to Why he took that action. In the court’s view, “[t}he evidence sup-

portf{ed] the conclusion that Armstrong accorded special treatment to

that particular warrant” (/d. at 13a). With respect to Wright, the court

noted that he aided and abetted Armstrong’s extortion “by actively in-

ducing and soliciting the payment to Armstrong” (id. at 14a).

Moreover, the court observed, when Wright’s associate complained

about the arrangement, Wright convinced Armstrong to take a

smaller fee and convinced his associate to pay that fee (/d. at 14a-1Sa).

Finally, the court noted (/d. at 15a) that “Wright and Armstrong con-

spired together to extort money from Wright’s law firm” and that

Wright’s law firm, not Wright himself, was the real payor of the

$3,000 check.

* Although Judge Brown voted in favor of panel rehearing, no

judge on the Fifth Circuit voted to rehear the case en bane (Pet. App.

ARGUMENT

Petitioners contend (Pet. 7-14) that the courts below

erred in finding that the extortionate conduct involved in

this case affected interstate commerce. Specifically, they

argue that “in a Hobbs Act prosecution the effect on com-

merce must be an effect of the extortion and not an effect

of the result of extortion or an effect presumed to arise

from a class of conduct in which the defendant has par-

ticipated” (id. at 12 (emphasis in original)). Contrary to

their assertion, the case law does not support this vague

and artificial distinction. The court of appeals’ decision is

correct and is fully in accord with the decisions of this

Court and the other courts of appeals.

1. Under the Hobbs Act, 18 U.S.C. 195l(a), the

government is required to prove that the alleged extortion

“in any way or degree obstruct[ed], delay[ed], or

affect{ed]” interstate commerce. As this Court has made

clear, that statutory language manifests a congressional

purpose “to use all the constitutional power Congress has

to punish interference with interstate commerce by extor-

tion, robbery or physical violence.” Stirone v. United

States, 361 U.S. 212, 215 (1960); see also United States v.

Culbert, 435 U.S. 371, 380 (1978). Cf. United States v.

Darby, 312 U.S. 100, 114 (1941) (quoting Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824) (“The power of

Congress over interstate commerce ‘is complete in itself,

may be exercised to its utmost extent, and acknowledges

no limits other than are prescribed in the Constitution.’ ”).

In light of Congress’s intent to invoke the full breadth of

its commerce power, the courts of appeals in Hobbs Act

cases have uniformly held that the magnitude of the effect

23a). In denying panel rehearing, the panel majority indicated (/bid.)

that the government had established all the elements of a Hobbs Act

violation, including a nexus to interstate commerce, “as elucidated in

cases from this and other circuits as well as the Supreme Court.”

8

on commerce is immaterial and that even a de minimis or

potential impact on commerce is sufficient. See, @.2.,

United States v. Tuchow, 768 F.2d 855, 870 (7th Cir.

1985); United States v. Billups, 692 F.2d 320, 331 n.7 (4th

Cir. 1982), cert. denied, 464 U.S. 820 (1983); United States

v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981), cert. denied,

455 U.S. 910 (1982); United States v. Zemek, 634 F.2d

1159, 1173 n.20 (9th Cir. 1980), cert. denied, 450 U.S. 985

(1981); United States v. Rabbitt, 583 F.2d 1014, 1023 (8th

Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United

States v. Harding, 563 F.2d 299, 302 (6th Cir. 1977), cert.

denied, 434 U.S. 1062 (1978); United States v. Starks, 515

F.2d 112, 124 (3d Cir. 1975).

Petitioners’ assertion (Pet. 12) that the effect on com-

merce must be an effect of the extortion and not an effect

of the result of extortion would undermine Congress’s in-

tent under the Hobbs Act to use all of its power to punish

extortionate conduct affecting interstate commerce.

Moreover, it would be inconsistent with the unanimous

circuit court holdings that even a de minimis or potential

effect is sufficient. Petitioners have cited nothing in the

legislative history of the Hobbs Act to support such a

distinction. Beyond ihat, the arbitrary distinction peti-

tioners propose would lead to absurd results. Under peti-

tioners’ theory, an “effect of the extortion” involving only

a small amount of money would provide Hobbs Act

jurisdiction, whereas a multi-million dollar “effect of the

result of extortion” would not provide such jurisdiction.

Such a result is without legal or logical support.’

’ Petitioners err in asserting (Pet. 7-9, 12) that the government’s

evidence showed only a class-wide effect on commerce. Voas’s

testimony revealed that the failure to prosecute an individual case in-

creases the likelihood that that defendant and those who learn about

the failure to prosecute that case will be involved in alcohol-related

automobile accidents (Tr. 938-939, 946-947). In any event, the cases

cited by petitioner (Pet. 9n.5), which have upheld federal jurisdiction

.

ne ne eD enn

9

Petitioners assert (Pet. 13) that prior to the present case,

“no court had ever allowed the government to establish

Hobbs Act jurisdiction with a showing of an impact on

commerce less direct than the depletion of assets of an

enterprise engaged in commerce.” That claim is erroneous.

For example, in United States v. Bagnariol, 665 F.2d 877

(9th Cir. 1981), cert. denied, 456 U.S. 962 (1982), a case

similar to the present one, the court rejected precisely the

distinction urged by petitioners here. The defendant in

that case was convicted of attempting to extort money

from a fictitious organization in return for assistance in

the enactment of gambling-related legislation. The govern-

ment introduced expert testimony showing the effects on

commerce of expanded gambling activity, including an in-

flux of tourists and workers from other states. In rejecting

the defendant’s claim that the nexus to interstate com-

merce was inadequate, the court explained (id. at 896 n.13

(emphasis added)):

The government did not rely on the interstate com-

merce effects of the extortion payment, but on the

potential effects of the gambling legislation for which

defendant agreed to work. The potential interstate

commerce effects need not derive solely from the

transaction involved in the extortion, but may crise

from the natural consequences of the extortion. In

this case, the natural consequences were increased

gambling and its concomitant effect on interstate

commerce.

Accord, e.g., United States v. Anderson, 809 F.2d 1281

(7th Cir. 1987) (payments by truck drivers to fix DWI

tickets affected commerce because of the increased

likelihood that the drivers would be on the roads in the

future).

based on class-wide effects in other contexis, confirm Congress's

broad authority to regulate activity that in any way affects interstate

commerce.

10

Likewise, in this case the government adduced evidence

showing that the failure to prosecute DWI cases results in

more alcohol-related automobile accidents on the nation’s

highways. As both courts below held, this evidence was

sufficient to demonstrate that the failure to prosecute the

Burns DWI charge had some actual or potential impact on

commerce.

2. Petitioners’ assertion (Pet. 12) that the present case

conflicts with case law in the Second, Fourth, and Seventh

Circuits is without merit. The only Second Circuit case

cited by petitioners is United States v. Merolla, 523 F.2d

§1 (1975). That case does not draw the distinction urged by

petitioners. Rather, that case turned on the fact that the

government failed to show any interference with interstate

commerce.’ The court in no way ruled out the result

reached in cases such as Bagnariol, Anderson, and the

present case. Indeed, the Ninth Circuit in Bagnariol

specifically noted (665 F.2d at 895) that its analysis was

fully consistent with Mero/la. And subsequent to Merolla,

the Second Circuit has reiterated its consistent position

that “[t]he jurisdictional requirement of the Hobbs Act

may be satisfied by a showing of a very slight effect on in-

terstate commerce” and that “[e]ven a potential or subtle

effect on commerce will suffice.” Angeli/li, 660 F.2d at 35

(citing cases).

’ Likewise without merit is petitioners’ claim (Pet. 8) that the pres-

ent case conflicts with decisions of this Court. This Court’s decisions,

such as Srirone and Culbert, underscore Congress’s intent to use the

full reach of its power to criminalize extortionate conduct that in any

way affects commerce.

® The statement in Merol/a (523 F.2d at 55) that only a “one-shot”

enterprise was involved was made in connection with the court’s rejec-

tion of a depletion of assets theory on thie ground that the enterprise

would not have used the funds paid to the defendants to make future

commercial purchases. That reasoning does not apply to the issue

raised here, which does not involve a depletion of assets theory.

ae ss MO ee

11

The one case cited by petitioners from the Fourth Cir-

cuit, United States v. Brantley, 777 F.2d 159 (1985), cert.

denied, No. 85-2003 (Oct. 6, 1986), likewise does not

adopt the distinction they urge. In Brantley, the court

simply held that a showing of an effect on commerce could

not be based solely on “pretensive activity by FBI agents”

in setting up a fictitious gambling house (id. at 161).

Under Fourth Circuit case law it is clear, as it is elsewhere,

that “even a de minimis effect on commerce resulting from

a Hobbs Act extortion is sufficient to bring the charged

criminal activity within the statute.” Bil//ups, 692 F.2d at

331 n.7.

Similarly, the Seventh Circuit has not adopted the

distinction urged by petitioners. Thus, in United States v.

Anderson, supra, the defendants took bribes to fix tickets

issued to three truck drivers for driving under the in-

fluence of alcohol.'!® The court upheld Hobbs Act jurisdic-

tion, reasoning that “{t]he fact that a truck driver is able to

pay a bribe to obtain a favorable disposition on a ticket

for driving under the influence of alcohol increases the

probability that he will be able to drive in the future.” 809

F.2d at 1286. In Anderson, it was not the extorted

payments themselves that were determined to have af-

fected commerce; rather, the court noted that commerce

was affected by the fact that the tickets were fixed and the

drivers thus enabled to stay on the roads. Put another

way, it was the resu/t achieved by paying the bribe that af-

fected commerce, not the actual payment itself. The

Anderson case demonstrates that in the Seventh Circuit, as

in other circuits, an impact on commerce from the result

of extortion may form the basis for Hobbs Act jurisdic-

tion. See also United States v. Lewis, 797 F.2d 358, 367

'° Although each driver had transported articles across state lines

and planned to do so again, one of the drivers to whom certain of the

counts related was unemployed (Anderson, 809 F.2d at 1286).

12

(7th Cir. 1986) (“[A]ll the government’s evidence must

show is a realistic probability that, after the demand for

payment was made (that is, the effect need not be

simultaneous with the attempted extortion), there would

be a de minim/(i]s effect on interstate commerce.”); United

States v. Murphy, 768 F.2d 1518, 1531 (7th Cir. 1985)

(noting that “[t]he commerce power reaches everything

related to commerce, even though particular instances of a

class of activities do not themselves occur in or affect com-

merce’), cert. denied, No. 85-924 (Feb. 24, 1986); United

States v. Staszcuk, 517 F.2d 53, 60 (7th Cir.) (affirming

Hobbs Act conviction in case involving payment in ex-

change for withholding opposition to zoning change to

permit an animal hospital to be built, even though the

hospital was never actually built), cert. denied, 423 U.S.

837 (1975).

The only case that articulates petitioners’ distinction be-

tween the effect and the result of extortion is the Seventh

Circuit’s decision in United States v. Mattson, 671 F.2d

1020, 1025 (1982). In Mattson, city employees extorted

money froma building maintenance worker in connection

with his application for an electrician’s license. The

government argued that Hobbs Act jurisdiction existed

because the issuance of the license would have affected the

financial condition of the worker’s employer and his out-

side electrical contractor (on whom the employer would no

longer need to rely). In rejecting that argument, the court

concluded that interstate commerce would not be affected

because the worker himself “was not conducring a business

engaged in, or purchasing items from, interstate com-

merce” and his employer never reimbursed him for the ex-

torted payments he made to the defendant (/bid.). The

court reasoned (/bid.) that a finding of an effect on com-

merce in that case would essentially mean that any extor-

tion of money from any individual would satisfy the

jurisdictional requirement. In the course of its opinion,

the court stated, without citing any authority, that “[t}he

13

Hobbs Act requires that interstate 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” (/bid. (emphasis in

Original)).

The Mattson court’s holding was essentially based on

the conclusion tinat there was not even a de minimis impact

on commerce in that case. The court’s distinction between

commerce affected by extortion and commerce affected as

a result of extortion was at best dictum, which was un-

necessary to the result reached in the case. As Anderson

and the other Seventh Circuit cases cited above reveal, the

Seventh Circuit itself has not followed the distinction

made in Mattson.'' Indeed, the effect on interstate com-

merce in the present case—the likelihood of increased

automobile accidents on interstate highways from the

failure to prosecute DWI cases—was more substantial

than the effect on commerce in several post-Mattson

Seventh Circuit cases upholding Hobbs Act jurisdiction.

See, e.g., United States v. Murphy, 768 F.2d at 1530-1531

(payments left attorneys with less money to purchase

envelopes, stationery, and law books from outside the

State), cert. denied, No. 85-924 (Feb. 24, 1986); United

States v. Boulahanis, 677 F.2d 586 (7th Cir.) (social club’s

'' Nor are petitioners aided by the Seventh Circuit’s decision in

United States v. Elders, 569 F.2d 1020 (1978) (discussed at Pet. 10).

There, the government argued that “kickbacks” paid to a city official

by a business doing work for the city artificially inflated prices paid by

the city for the work, thereby depleting the city treasury of funds that

would be used to purchase goods shipped in interstate commerce. The

court rejected the argument because the government adduced no

proot of the inflated prices, the depletion of assets, or the purchase of

goods in interstate commerce. 569 F.2d at 1025. Here, by contrast, the

government introduced evidence establishing that the tailure to prose-

cute DWI cases increases the number of accidents on interstate

highways.

14

extortion payments left it with less money from which to

spend its customary $68 per month on coffee from out of

State), cert. denied, 459 U.S. 1016 (1982).

Because the distinction drawn in Mattson between the

effect and the result of extortion has not been followed in

later Seventh Circuit cases, and because the language in

Mattson was dictum and was unsupported by any legal

authority, there is no basis for petitioners’ claim of a con-

flict between the Fifth and Seventh Circuits. The decision

in the present case therefore does nothing more than apply

settled principles to a particular factual setting.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

MARCH 1987

US GOVERNMENT PRINTING OFFICE 1987— 181.483 40266

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