Petition for Writ of Certiorari — Leone v. United States
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6
Id. at 767. The circuit accordingly rejected any require-
ment that the government prove an actual effect on
interstate commerce.‘
e
REASONS FOR GRANTING THE WRIT
In light of the circuit split over whether the
Commerce Clause element of the Hobbs Act,
18 U.S.C. § 1951(a), requires proof of an ac-
tual (albeit minimal) effect on interstate
commerce, or only the mere potential for an
effect, this Court should grant the writ to
clarify the interpretation of this important —
federal criminal statute and to require that
the statute be interpreted in accordance
with its plain language.
This petition raises a substantial federal question over
which the circuits are split regarding the interpretation of
the Commerce Clause element in the Hobbs Act, 18 U.S.C.
§ 1951(a). Should juries be instructed in accordance with
the plain language of the statute that the government
must show there was some actual effect on commerce,
however minimal, or is it enough to show merely that
there potentially could have been an effect?
The Court’s review is needed to resolve the circuit
split so as to allow for consistent enforcement of this
important federal criminal statute across the country.
Review is also needed in order to vindicate the plain
‘The circuit court did, however, vacate the sentences and remand
for resentencing in light of Booker v. United States, 125 S.Ct. 738
(2005).
7
language of the Hobbs Act and to avoid the constitution-
ally doubtful reading of the text by the Court of Appeals.
The issue is an important one to resolve in light of the
constitutional concern for not obliterating “the distinction
between what is national and what is local,” United States
v. Lopez, 514 U.S. 549, 566-67 (1995), and of not rendering
“traditionally local criminal conduct ... a matter for
federal enforcement.” Jones v. United States, 529 U.S. 848,
858 (2000) (quoting United States v. Bass, 404 U.S. 336,
350 (1971)).
This case presents an ideal vehicle for resolving the
circuit split because the issue is neatly crystalized by the
facts, where there was uncontradicted testimony that
there was no effect on the purchase of interstate supplies,
and by the district court’s instruction, which expressly told
the jurors they did not have to find any actual effect on
commerce and that the mere potential for an effect would
suffice.
A. The circuits are split on whether the govern-
ment must prove an actual effect on commerce.
As the Third Circuit accurately notes, there is a split
in the circuits regarding whether the Hobbs Act requires
proof of some actual effect on interstate commerce. Urban,
404 F.3d at 765 n.3. Three circuits have ruled that some
actual effect on commerce must be shown for substantive
Hobbs Act violations. The Eighth Circuit in United States
v. Williams, 308 F.3d 833 (8th Cir. 2002), rejected an
instruction which, in language similar to the instruction
here, charged the jury that “the effect on interstate com-
merce may be merely probable or potential, not an actual
effect.” Id. at 837 (emphasis original). The court ruled that
8
“the statute’s plain language requires an actual effect on
interstate commerce, not just a probable or potential
impact.” Jd. at 838. The Eleventh Circuit in United States
v. Carcione, 272 F.3d 1297 (11th Cir. 2001), similarly held
that a “substantive violation of the Hobbs Act requires an
actual, de minimis affect on commerce.” Id. at 1300-01 n.5;
see also United States v. Le, 256 F.3d 1229, 1232 (11th Cir.
2001) (noting that “the type of evidence required for the
Government to satisfy its burden of proof concerning the
interstate commerce nexus differs depending on whether
the defendant is charged with the inchoate offenses of
conspiracy and attempt, or a substantive offense under the
Hobbs Act”; at least a “minimal impact” on commerce is
required for a substantive offense, while evidence of
“potential impact” is sufficient for attempt or conspiracy),
cert. denied, 534 U.S. 1145 (2002). And in United States v.
DiCarlantonio, 870 F.2d 1058 (6th Cir.), cert. denied, 493
U.S. 933 (1989), the Sixth Circuit explained, “While a
substantive Hobbs Act violation requires an actual effect
on interstate commerce, a conspiracy charge requires the
government to prove only that the defendants’ scheme
would have affected commerce.” Jd. at 1061; cf United
States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000) (relying
on cases involving the inchoate offense of attempted
extortion to suggest that the government need only show a
“realistic probability” of an effect on commerce.).
This line of cases is supported by the following model
jury instruction which first covers inchoate and then
substantive Hobbs Act offenses:
If you decide that interstate commerce would po-
tentially or probably be affected if the defendant
had successfully and fully completed his actions,
9
then the element of affecting interstate com-
merce is satisfied. You do not have to find that
interstate commerce was actually affected. How-
ever, if the defendant has finished his actions,
and done all he intended to do, and you deter-
mine there has been no effect on interstate com-
merce, then you cannot find the defendant guilty.
3 L. Sand, et al., Modern Federal Jury Instructions, Inst.
50-15 (The Hobbs Act, Third Element — Affecting Inter-
state Commerce) (2003) (emphasis original). Thus, in cases
alleging substantive Hobbs Act violations such as the
instant case, in which the defendants finished all of their
actions of receiving tips and did all they intended to do,
the question is simply whether there was any actual effect
(even if only a minimal one) on interstate commerce. The
issue of whether there was a “potential” effect should not
arise.’
*In a case presenting an inchoate Hobbs Act violation, such as an
attempt or conspiracy, because the crime is not completed, there is no
actual effect on commerce. Thus, in such a case, consistent with the
first part of the model jury instruction above, the government need only
show that, had the defendant successfully and fully completed his
actions, there was a “realistic probability” of an effect. United States v.
Kaplan, 171 F.3d 1351, 1354 (11th Cir.) (en banc), cert. denied, 528 U.S.
928 (1999). Here, although the indictment, in tracking the language of
the Hobbs Act, alleged on its face that the defendants “unlawfully
obtained and attempted to obtain property ...” (Brief for Appellant
Smith, Supplemental Appendix, 30a), attempt was not factually at issue
in this case, and the government did not request a separate instruction
on attempt. The indictment alleged substantive Hobbs Act violations,
and as the Circuit Court opinion makes clear, the government’s
evidence was that the defendants completed all of their actions of
receiving tips, and the government’s theory of the case was that all of
the Hobbs Act counts constituted substantive violations. Urban, 404
F.3d at 760-61.
10
A majority of circuits, however, with little or no
analysis of the plain language of the Hobbs Act, have held
that even for substantive Hobbs Act offenses, the mere
“potential” for an effect on interstate commerce is suffi-
cient. See United States v. Rivera Rangel, 396 F.3d 476,
482-83 (1st Cir. 2005) (Hobbs Act reaches “even those
effects which are merely potential or subtle”) (quoting
United States v. Hathaway, 534 F.2d 386, 396 (1st Cir.),
cert. denied, 429 U.S. 819 (1976)); United States v. Lynch,
367 F.3d 1148, 1155 (Sth Cir. 2004) (“interstate nexus
requirement is satisfied ‘by proof of a probable or potential
impact’ on interstate commerce,” and the government need
not prove “that a defendant’s acts actually affected inter-
state commerce”) (citation omitted); United States v.
Curtis, 344 F.3d 1057, 1070 (10th Cir. 2003) (“the evidence
[to support a Hobbs Act conviction] need show only a
potential or de minimis effect on interstate commerce”),
cert. denied, 540 U.S. 1157 (2004); United States uv.
Silverio, 335 F.3d 183, 186 (2d Cir. 2003) (“any interfer-
ence with or effect upon interstate commerce, whether
slight, subtle or even potential, . . . is sufficient to uphold a
prosecution under the Hobbs Act”) (citations omitted);
United States v. Peterson, 236 F.3d 848, 852 (7th Cir. 2001)
(“minimal potential effect on commerce is all that need be
proven to support a [Hobbs Act] conviction”) (citation
omitted); United States v. Brantley, 777 F.2d 159, 162 (4th
Cir. 1985) (interstate nexus under Hobbs Act may be
shown by “proof of probabilities without evidence that any
particular commercial movements were affected”), cert.
denied, 479 U.S. 822 (1986).
What is most notable about these decisions adopting
the “potential effects” view is that they do not make any
attempt to reconcile this view with the ordinary meaning
11
of the terms used in the statute. As noted below, the plain
language of the Hobbs Act not only does not suggest that
the mere hypothetical possibility of an effect on commerce
is sufficient for a substantive Hobbs Act violation, it
squarely contradicts, and therefore forecloses, this inter-
pretation. The decisions adopting the “potential effects”
view also fail to distinguish between the proof required for
the inchoate Hobbs Act offenses of attempt or conspiracy,
and the proof required for a substantive Hobbs Act offense.
Accordingly, this Court’s guidance on the interpretation of
such an important federal criminal statute is needed in
order to resolve the circuit split regarding the Commerce
Clause element and provide for consistent application of
the Hobbs Act across the country. :
B. The Third Circuit’s ruling conflicts with the
plain language of the statute.
The plain language of the Hobbs Act requires proof of
an actual effect upon interstate commerce. This effect may
be de minimis, United States v. Clausen, 328 F.3d 708, 711
(3d Cir.), cert. denied, 540 U.S. 900 (2003), but it must
nonetheless exist; it cannot be a mere hypothetical possi-
bility. The Hobbs Act provides in relevant part as follows:
Whoever in any way or degree obstructs, delays,
or affects commerce or the movement of any arti-
cle or commodity in commerce, by robbery or ex-
tortion or attempts or conspires so to do... shall
be fined under this title or imprisoned not more
than twenty years, or both.
12
18 U.S.C. §1951(a).° Thus, in a prosecution like the
instant one for substantive Hobbs Act extortion, the
government must prove that the defendant “in any way or
degree obstructied], delayled] or affect[ed] commerce.”
Nothing about this language permits conviction upon a
showing that the defendant’s acts merely could have
affected interstate commerce.
The key verbs in the statute, “obstructs, delays, or
affects,” are all action verbs and they act directly upon the
object — “commerce.” The use of these action verbs, and the
absence of any language indicative of hypothetical possi-
bilities, such as “could have” or “might have,” shows that
some actual effect, and not merely the hypothetical possi-
bility of an effect, is required.
As this Court has stated, “When terms used in a
statute are undefined, we give them their ordinary mean-
ing.” Jones, 529 U.S. at 855 (quoting Asgrow Seed Co. v.
Winterboer, 513 U.S. 179, 187 (1995)); see also Arthur
Anderson LLP v. United States, 125 -S. Ct. 2129, 2135
(2005) (“the natural meaning of these terms [‘knowingly
... corruptly’ in the federal obstruction statute] provides a
clear answer” regarding their correct interpretation);
Bailey v. United States, 516 U.S. 137, 145 (1995) (“The
word ‘use’ in the [federal firearms] statute must be given
its ordinary or natural meaning, ... ) (quotation marks
omitted).
* The term “extortion” is defined in subsection (b) of the Hobbs Act
to mean “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.” 18 U.S.C. § 1951(bX2). The instant case
was prosecuted under the theory that the plumbing inspectors obtained
property “under color of officia) right.”
13
There is nothing about the “ordinary meaning” of the
verbs “obstructs, delays, or affects” to suggest that the
mere potential for an effect on commerce would suffice.
“Obstruct” means “to block up: stop up or close up: place
an obstacle in or fill with obstacles or impediments to
passing.” Webster’s Third New International Dictionary
1559 (1993) (hereinafter Webster’s 3d). “Delay” means “to
put off: prolong the time of or before: postpone, defer.” Id.
at 595. “Affect” means “to act upon: a: to produce an effect
(as of disease) upon [-] a condition [affect]ing the heart.
b(1): to produce a material influence upon or alteration in
[-] rainfall [affect]s plant growth; areas to be [affectled by
highway construction (2): to have a detrimental influence
on [—] used especially in the phrase affecting commerce.”
Id. at 35. As Webster’s 3d explains, “AFFECT applies to a
stimulus strong enough to bring about a reaction, some-
times emotional, or bring about some modification,
usulally] without total change.” Jd.
All three verbs thus ordinarily signify actions which
bring about some actual effect on the object of the verb.
None of them ordinarily applies to actions which bring
about no modification or change. While the introductory
phrase to the Hobbs Act, “Whoever in any way or degree,”
does give the statute an expansive scope and implies that
any effect, even a minimal one, will suffice, nothing about
this phrase suggests that there need be no actual effect at
all. To the contrary, the language makes plain there must
be some effect, “in any way or degree.”
The instruction upheld by the circuit court contradicts
this plain language. The jury was told,
You do not even have to find that there was an
actual effect on commerce. All that is necessary
14
to prove this element is that the natural conse-
quences of the extortion — of the money payment,
potentially caused an effect on interstate com-
merce to any degree, however minimal or slight.
Urban, 404 F.3d at 762. In affirming this instruction, the
Third Circuit ruled that the government could meet its
burden so long as the “‘natural consequences’ of the
extortionate acts ‘potentially caused’ just a ‘minimal’ effect
on interstate commerce.” Jd.
The word “potentially” means “in a potential or
possible state or condition: with a possibility or capacity
for becoming actual.” Webster’s 3d at 1775. Thus, under
this instruction, the mere possibility that there could have
been a minimal effect on commerce-was sufficient. Since,
as the saying goes, “anything is possible,” this burden was
no burden at all. Any extortionate payment would qualify.
This instruction effectively rendered the Commerce Clause
element of the Hobbs Act a nullity.
The circuit court further nullified the Commerce
Clause element by holding that the government need
prove nothing more than “depletion of assets” to meet this
element. As the court explained, “[E]xtortion which de-
pletes the assets of persons or businesses engaged in
interstate commerce, is as a matter of law, a Hobbs Act
violation.” Urban, 404 F.3d at 767 (emphasis added). Since
the circuit defined “engaged in interstate commerce” as
anyone “who purchased supplies made out-of-state,” id.,
and since every person and business, no matter how local,
does inevitably purchase something made out-of-state at
some time, this holding makes every extortion — which
necessarily depletes the assets of the person or business
making the payment — a federal offense. Accordingly, the
net effect of the circuit court’s ruling, contrary to the plain
15
language of the statute, is to eliminate the requirement of
any actual effect on commerce, and to allow the extortion-
ate payment by itself to satisfy the Commerce Clause
element.
The circuit court’s construction of the Hobbs Act is
contrary to the principle of statutory interpretation that
““‘Judges should hesitate ... to treat [as surplusage]
statutory terms in any setting, and resistance should be
heightened when the words describe an element of a
criminal] offense.’” Bailey, 516 U.S. at 506-07 (quoting
Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994)). The
circuit’s construction in effect renders the language estab-
lishing the Commerce Clause element mere surplusage. -
The circuit’s construction also fails to consider context
~ in this case the primacy of the Commerce Clause ele-
ment in the Hobbs Act. As the Court explained in Bailey,
“‘We consider not only the bare meaning of the word but
also its placement and purpose in the statutory scheme.
[T]he meaning of statutory language, plain or not, depends
on context.’” 516 U.S. at 506 (quoting Brown v. Gardner,
513 U.S. 115, 118 (1994) (citing King v. St. Vincent’s
Hospital, 502 U.S. 215, 221 (1991)). The Commerce Clause
element comes first in the Hobbs Act, and the statutory
drafting makes clear that the gravamen of the offense is
the obstructing, delaying or affecting of commerce. Since
the effect on commerce is the central element of the
offense, it is contrary to this statutory scheme to construe
the element, as the Third Circuit has in this case, in a
manner that renders the element a nullity or mere surplu-
sage.
16
The writ should be granted, therefore, because the
circuit court’s ruling is contrary to the plain language of
the Hobbs Act.
C. The Third Circuit’s interpretation of the Com-
merce Clause element is a constitutionally
doubtful one that threatens to alter the federal-
state balance in the prosecution of crimes.
The Third Circuit’s ruling in this case merits review
because its “potential effects” interpretation vitiates the
Commerce Clause element of the Hobbs Act and effectively
federalizes all extortion, no matter how local. Such an
interpretation, in addition to being contrary to the plain
language of the statute as discussed above, is constitu-
tionally doubtful and raises important questions regarding
Congress’s power to legislate under the Commerce Clause.
This Court should grant review to determine whether a
statutory interpretation that raises such constitutional
doubts should be upheld.
Over the last decade this Court has made clear that
the Commerce Clause sets real limits on Congress’s power.
In United States v. Lopez, 514 U.S. 549 (1995), and United
States v. Morrison, 529 U.S. 598 (2000), this Court struck
down statutes which sought to criminalize or regulate
local conduct but which did not contain an express Com-
merce Clause element. Lopez, 514 U.S. at 551, 567-68
(striking down Gun Free School Zones Act); Morrison, 529
U.S. at 617-19 (striking down statute providing civil
remedy for victims of gender-motivated violence). Shortly
after Morrison, the Court applied the principles of Lopez in
Jones. 529 U.S. 848 (2000). Jones sets out the analytical
framework for the doctrine of constitutional doubt that
should be applied in this case.
17
In Jones, the defendant was convicted of setting fire to
an owner-occupied residence, in violation of the federal
arson statute, 18 U.S.C. § 844(]). The defendant chal-
lenged his conviction, arguing under the plain language of
the statute and the doctrine of avoiding constitutional
doubt that the arson statute does not apply to the arson of
an owner-occupied residence. The Court agreed. Jones, 529
US. at 851.
Like the Hobbs Act involved in the instant case, the
federal arson statute includes an express jurisdictional
element: Section 844({I) applies only to the arson of a
“building, vehicle, or other real or personal property used
in interstate or foreign commerce or in any activity affect-
ing interstate or foreign commerce.” Jones, 529 U.S. at 853
(quoting 18 U.S.C. § 844(I)). The government in Jones
argued that this element was satisfied because the resi-
dence at issue in the case was “used” to secure a mortgage
from an out-of-state lender, to obtain a casualty insurance
policy from an out-of-state insurer, and because the
residence received natural gas from an out-of-state source.
Id. at 885.
The Court rejected this argument, reasoning that
“(a}lthough ‘variously defined,’ the word ‘use’ in legislation
as in conversation, ordinarily signifies ‘active employ-
ment.’” Jd. at 855 (quoting Bailey, 516 U.S. at 143). The
Court thus concluded that the statute applies to “active
employment for commercial purposes, and not merely a
passive, passing, or past connection to commerce.” Jd. This
construction of the statute, the Court explained, was
“reinforced” by Lopez and “the interpretive rule that
constitutionally doubtful constructions should be avoided
where possible.” Jd. at 851. The Court found that the
government’s interpretation of the statute would raise
18
“grave and doubtful constitutional questions” relating to
Congress’s power to legislate under the Commerce Clause.
Id. at 857. As the Court recognized, if the government’s
argument were adopted, “hardly a building in the land
would fall outside the federal statute’s domain.” Jd. This
would “‘significantly change[] the federal-state balance’ in
the prosecution of crimes ... for arson is a paradigmatic
common-law state crime.” Jd. at 858 (quoting United
States v. Bass, 404 U.S. 336, 349 (1971)). The Court
concluded that “[gliven the concerns brought to the fore in
Lopez, it is appropriate to avoid the constitutional ques-
tion that would arise were we to read § 844(I) to render
the ‘traditionally local criminal conduct’ in which peti-
tioner Jones engaged ‘a matter for federal enforcement.’”
Id. (quoting Bass, 404 U.S. at 350).
In light of the importance of avoiding a constitution-
ally doubtful construction, the Jones Court applied several
“interpretive guides” and construed the federal arson
statute strictly in accordance with its plain language.
Jones, 529 U.S. at 858. The Court took note of the rule of
lenity, under which any ambiguity concerning the ambit of
a statute should be resolved in favor of the defense, along
with the related principle that “‘when a choice has to be
made between two readings of what conduct Congress has
made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have-
spoken in language that is clear and definite.’” Id. (quot-
ing United States v. Universal C.I.T: Credit Corp., 344 U.S.
218, 221-22 (1952)). In a similar vein, the Court stated,
“We have cautioned as well, that ‘unless Congress conveys
its purpose clearly, it will not be deemed to have signifi-
cantly changed the federal-state balance’ in the prosecu-
tion of crimes.” Jd. (quoting Bass, 404 U.S. at 349). The
19
Court thus held that the federal arson statute, which
applies only to property “used ... in any activity affecting
... commerce,” does not apply to an owner-occupied home,
but only to “property currently used in commerce or in an
activity affecting commerce.” Id. at 859.
Extortion, like arson, is a “paradigmatic common law
state crime.” Indeed, the Hobbs Act is based squarely on
both the common law understanding of extortion and state
statutes which criminalized it, and it has been interpreted
in light of these sources. See Scheidler v. National Organi-
zation for Women, Inc., 537 U.S. 393, 402-06 (2003) (dis-
cussing common law and state law roots of Hobbs Act, and
concluding based on these sources that extortion under Act
requires that property be obtained); Evans v. United
States, 504 U.S. 255, 260-65 (1992) (holding based on
common law and state law roots of Hobbs Act that extor-
tion under Act does not require proof of affirmative in-
ducement by public official). The analytical framework of
Jones, therefore, should be used in interpreting the Hobbs
Act and in reviewing the Third Circuit’s decision in this
case.
Like the over-broad interpretation of the arson statute
struck down in Jones, the Third Circuit’s interpretation of
the Hobbs Act renders “traditionally local criminal con-
duct” a matter for “federal enforcement.” 529 U.S. at 858.
Indeed, it is hard to imagine any extortion that would not
qualify for federal prosecution under the Third Circuit’s
view. Since, under the Circuit’s view, there need not be any
actual effect on commerce, but only the “potential” for such
an effect, and since such a potential will exist any time an
extortionate payment is made, there is no extortion, no
20
matter how local, that would be beyond the reach of
federal prosecutors.’
Applying the principle that constitutionally doubtful
constructions should be avoided, the Commerce Clause
element of the Hobbs Act should be strictly construed. Just
as Jones observed that Congress did not define the federal
crime of arson “as the explosion of a building whose
damage or destruction might affect interstate commerce”
529 U.S. at 854 (emphasis added), so too, it must be
observed here that Congress did not define Hobbs Act
extortion as any extortion which might affect interstate
commerce. In accordance with the interpretive guides set
out in Jones, this Court should not apply a “harsher
alternative” reading of the statute unless Congress has
“spoken in language that is clear and definite.” Jd. at 858.
The analytical framework of Jones thus requires that the
Hobbs Act be construed strictly in accordance with its
"The Third Circuit states that “Appellants do not clearly articulate
what would be constitutionally doubtful about interpreting the Hobbs
Act to require only proof of a potential effect on commerce.” Urban, 404
F.3d at 766. The Circuit goes on to “surmise” that the argument is “that
Lopez and its progeny require proof of a ‘substantial effect’ on commerce
in an individual case... .” Jd. This is not, however, petitioner’s argu-
ment, either in the circuit or in this Court. Petitioner does not dispute
that a minimal effect is sufficient. Instead, as discussed above, peti-
tioner contends that there must be some actual effect, even if a minimal
one. What is constitutionally doubtful about the Circuit's “potential
effects” view is that by relieving the government of having to prove any
actual effect on interstate commerce, it effectively federalizes all
extortion. It is constitutionally doubtful that Congress has the power
under the Commerce Clause to do this since extortion is a “paradig-
matic common law state crime,” and the Circuit’s view thus renders
traditionally local criminal conduct “a matter for federal enforcement.”
Jones, 529 U.S. at 858. Jones makes clear that such constitutionally
doubtful constructions should be avoided.
21
plain language and that therefore proof of some actual
(albeit minimal) effect on commerce is required.
Moreover, by holding that depletion of assets “as a
matter of law” meets the Commerce Clause element,
Urban, 404 F.3d at 767, the Third Circuit in effect created
a mandatory presumption that relieves the government of
proving the Commerce Clause element. Instead of proving
an effect on commerce, the government need only prove a
depletion of assets of a business or individual that has
purchased goods made out-of-state. This depletion of
assets, by definition, will exist anytime there is an extor-
tionate payment. Such a mandatory presumption, particu-
larly in the absence of congressional action creating the
presumption, is constitutionally doubtful since it relieves
the government of having to prove an element of the
offense as Congress has created it — an effect on interstate
commerce. As this Court has held, Due Process “protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S.
358, 364 (1970)); see also, Sandstrom v. Montana, 442 U.S.
510, 523-24 (1979) (instruction that jury could presume
defendant intends ordinary consequences of his actions
was unconstitutional because it either shifted burden to
defense or created unlawfu! mandatory presumption). The
Commerce Clause element of the Hobbs Act, therefore,
should not be the subject of a mandatory presumption.”
*It should be noted that the “depletion of assets” inferense is not
constitutionally doubtful if presented as a “permissive inference” - if
the jurors are instructed that they may infer from the depletion of
assets, together with all the other evidence, that there was an effect on
commerce. Analogously, a jury may infer intent from a defendant's
(Continued on following page)
22
Accordingly, this Court should grant the writ in order
to review the Third Circuit’s constitutionally doubtful
interpretation of the Commerce Clause element in the
Hobbs Act.
D. This case presents an ideal vehicle for resolving
the circuit split.
Last, the writ should be granted because this case
presents the issue in stark relief, both factually and
legally. The facts are straightforward: Plumbing inspectors
received tips from plumbers whose work they inspected.
The plumbers testified that they did purchase some
actions, but of course, such intent cannot be mandatorily presumed
based on the defendant’s actions. Sandstrom v. Montana, 442 U.S. 510,
523-24 (1979). A “permissive inference” leaves the issue to the jury to
decide, and allows for contrary evidence to be introduced showing that
the inference is not warranted. Francis v. Franklin, 471 U.S. 307, 314
(1985). The cases the Third Circuit cites as supporting the depletion of
assets theory, Urban, 404 F.3d at 765 n.3, do not discuss what type of
inference (mandatory or permissive) is warranted by proof that assets
were depleted. None of these cases, however, expressly adopts the Third
Circuit’s “as a matter of law” formulation which creates a mandatory
presumption. See United States v. Curtis, 344 F.3d 1057, 1070 (10th Cir.
2003) (evidence sufficient where robbery depleted assets of business
engaged in interstate commerce), cert. denied, 540 U.S. 1157 (2004);
United States v. Williams, 342 F.3d 350, 354-55 (4th Cir. 2003) (same),
cert. denied, 540 U.S. 1169 (2004); United States v. Jamison, 299 F.3d
114, 120 (2d Cir. 2002) (same), cert. denied, 5387 U.S. 1196 (2003);
United States v. Turner, 272 F.3d 380, 385 n.2 (6th Cir. 2001) (same);
United States v. Diaz, 248 F.3d 1065, 1084-85 (11th Cir. 2001) (same);
United States v. Bailey, 227 F.3d 792, 798 (7th Cir. 2000) (same); United
States v. Hebert, 131 F.3d 514, 521 (5th Cir. 1997) (upholding instruc-
tion permitting jury to infer effect on commerce from depletion of assets
of business in interstate commerce), cert. denied, 523 U.S. 1101 (1998);
United States v. Bucci, 839 F.2d 825, 830 (1st Cir.) (evidence sufficient
where extortion depleted assets of business engaged in interstate
commerce), cert. denied, 488 U.S. 844 (1988).
23
supplies that were made out-of-state, but most also testi-
fied, without contradiction, that the payment of tips did
not affect their ability to purchase supplies. The chal-
lenged instruction went right to the heart of this issue
because it told the jurors, “You do not even have to find
that there was an actual effect on commerce,” and that the
government need only show that the payment of the tips
“potentially caused an effect on interstate commerce to
any degree, however minimal or slight.” On these facts,
this charge was legally decisive. The case is thus ideal for
resolving a circuit split on an important question of federal
- criminal law — whether under the plain language of the
Hobbs Act, and the doctrine of constitutional doubt, the
government must prove an actual effect on commerce, or
whether the mere possibility that there could have been
an effect is sufficient.
te
vy
CONCLUSION
For the foregoing reasons, petitioner submits that the
petition for writ of certiorari should be granted.
Respectfully submitted,
ALAN L. YATVIN, ESQUIRE
POPPER & YATVIN
230 S. Broad Street ~
Suite 503
Philadelphia, PA 19102
(215) 564-5700
Counsel for Petitioner
APPENDIX
App. 1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-1325/1326/1356/1370/1371/2315/2737/2751
UNITED STATES OF AMERICA
v.
THOMAS URBAN,
Appellant No. 03-1325
UNITED STATES OF AMERICA
v.
JOSEPH J. O’MALLEY,
Appellant No. 03-1326
UNITED STATES OF AMERICA
v.
JOSEPH R. LEONE,
Appellant No. 03-1356
UNITED STATES OF AMERICA
Vv.
GERALD S. MULDERIG,
Appellant No. 03-1370
App. 2
UNITED STATES OF AMERICA
v.
FRED TURSI,
Appellant No. 03-1371
UNITED STATES OF AMERICA
v.
JAMES F. SMITH,
Appellant No. 03-2315
UNITED STATES OF AMERICA
v.
WILLIAM C. JACKSON,
Appellant No. 03-2737
UNITED STATES OF AMERICA
v.
STEPHEN M. RACHUBA,
Appellant No. 03-2751
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 02-cr-00165-13, 02-cr-00165-08,
02-cr-00165-05, 02-cr-00165-06, 02-cr-00165-12,
02-cr-00165-11, 02-cr-00165-03, and 02-cr-00165-09)
District Judge: Honorable Petrese B. Tucker
App. 3
Argued October 28, 2004
Before: SCIRICA, Chief Judge, FISHER,
and GREENBERG, Circuit Judges.
(Filed: April 20, 2005)
Peter A. Levin
1927 Hamilton Street
Philadelphia, PA 19130
Attorney for Appellant, Thomas Urban
F. Emmett Fitzpatrick, Jr. (Argued)
F. Emmett Fitzpatrick Law Offices
6th and Chestnut Streets
926 Public Ledger Building
Philadelphia, PA 19106
Attorneys for Appellants, Joseph J. O’Malley
and William C. Jackson
Alan L. Yatvin
Popper & Yatvin
230 South Broad Street, Suite 503
Philadelphia, PA 19102
Attorney for Appellant, Joseph R. Leone
S. Daniel Hutchison
135 North Broad Street
Woodbury, NJ 08096
Attorney for Appellant, Gerald S. Mulderig
NiaLena Caravasos
F. Emmett Fitzpatrick Law Offices
6th and Chestnut Streets
926 Public Ledger Building
Philadelphia, PA 19106
Attorneys for Appellant, Fred Tursi
App. 4
David L. McColgin (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Attorney for Appellant, James F. Smith
Ari S. Moldovsky (Argued)
Moldovsky & Moldovsky
834 Chestnut Street, Suite 206
Philadelphia, PA 19107
Attorney for Appellant, Stephen M. Rachuba
Amy L. Kurland (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorney for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
Appellants, plumbing inspectors employed by the City
of Philadelphia, were convicted of improperly accepting
payments from plumbers whose work they inspected in
violation of the Hobbs Act and the Racketeer Influenced
and Cerrupt Organizations Act (“RICO”). They raise a host
of contentions on appeal, including primarily a challenge
to the District Court’s jury instruction regarding the
Hobbs Act’s requirement that the covered misconduct have
affected commerce. We find none of Appellants’ contentions
sufficient to support overturning their convictions. We
will, however, vacate their sentences in light of the United
App. 5
States Supreme Court’s recent decision in United States v.
Booker, 125 S. Ct. 738 (2005), and remand to the District
Court for resentencing in accordance with that decision.
2
Appellants Thomas Urban, Joseph J. O’Malley, Joseph
R. Leone, Gerald S. Mulderig, Fred Tursi, James F. Smith,
William C. Jackson and Stephen M. Rachuba were plumb-
ing inspectors employed by the Construction Services
Department (“CSD”), a division of the Department of
Licenses and Inspections (“L & I Department”) of the City
of Philadelphia. The L & I Department is a regulatory
agency charged with construction inspections and business
regulatory affairs. The CSD is responsible for issuing all
construction permits and performing construction inspec-
tions. Appellants were tasked with performing the plumb-
ing component of these inspections, and were expected to
enforce the city plumbing code in order, among other
things, to ensure the safety of the city drinking water.
Appellants were assigned to districts. Plumbers were
required to call the offices of the district in which their job
was located to set up an appointment with an inspector.
Appellants had discretion to decide when to perform the
inspection. In performing inspections and enforcing the
plumbing code, Appellants had the power to cite violations
of the code, issue stop work orders on projects, and revoke
the license of any plumber who failed to comply with the
code.
In the late 1990s, law enforcement became aware that
plumbing inspectors were accepting monetary payments
from plumbers whose work they inspected, or claimed to
have inspected. In the course of its investigation into this
App. 6
practice, the FBI interviewed several confidential sources
— designated as CS1, CS2 and CS3, respectively — who had’
worked as plumbing inspectors alongside Appellants, or as
plumbers whose work Appellants had inspected. An
affidavit executed by an FBI agent, filed by the govern-
ment in support of a request to install hidden cameras ‘n
city vehicles which would be used by suspected plumbing
inspectors, detailed statements given by these confidential
sources. CS1, a former plumbing inspector from 1992 to
1997, stated that 70%-80% of the plumbing contractors
whose work he inspected during that time period “pro-
vided him with a cash ‘tip’ of $5 to $20 in return for his
inspection and for allowing the contractor to work without
interference.” CS1 stated that he made an additional
$3,000 to $6,000 per year from these “tips,” and that
acceptance of “tips” was commonplace among the L&l
Department’s plumbing inspectors. CS1 believed that
plumbing inspectors, including specifically many of the
Appellants, “regularly acceptied] ‘tips’ while working in
their official capacity as City inspectors[.]”
CS2, a small plumbing contractor who had allegedly
interacted with plumbing inspectors through a third party,
stated that he provided money used to pay a plumbing
inspector named “Tursi” in 1999 and on at least ten prior
occasions. CS3, a large general plumbing contractor who
worked with several plumbing subcontractors, stated that
he was told by his subcontractors that payments were
made to an inspector named “O’Donnell” and his replace-
ment named “Smith.” The affidavit also stated that the
affiant had interviewed a “cooperating witness” who had
“made consensual recordings of L&I plumbing inspector
Fred Tursi allegedly extorting money from him.” This
App. 7
cooperating witness advised that he had given $50 to his
plumbers to give to Tursi to “keep him off their backs.”
On the strength of this information, the government
sought and obtained from the United States District Court
for the Eastern District of Pennsylvania an order authoriz-
ing the installation of hidden video cameras in two city
vehicles which would be used by certain of the Appellants
while on official city business. Video captured by these
cameras apparently showed Appellants Jackson, Leone,
O’Malley, Rachuba and Smith accepting cash on numerous
occasions from plumbers during the course of conducting
inspections; in many instances, Appellants apparently
accepted cash payments without performing any inspec-
tion at all.
On March 19, 2002, a grand jury in the Eastern
District of Pennsylvania returned an indictment of 13
plumbing inspectors, including Appellants, charging them
with a violation of RICO, 18 U.S.C. § 1962, and multiple
counts of Hobbs Act extortion, in violation of 18 U.S.C.
§ 1951. A five-week trial ensued in early September 2002.
At trial, the government presented evidence showing that
multiple plumbers made numerous monetary payments of
varying sizes to each of the Appellants. Plumbers testified
that they paid inspectors anywhere from $5 to $200 per
inspection. There was ample evidence at trial that plumb-
ers paid inspectors in order to ensure timely and favorable
inspections, and to prevent unfavorable treatment or
* Numerous plumbers testified that because of labor and equip-
ment costs, any idle time between the completion of a project and the
performance of an inspection harmed their business. It was therefore
essential that plumbing inspectors arrive as soon as a project was
completed, and that they perform the inspection of that project as
(Continued on following page)
App. 8
harassment by inspectors. One plumber testified that “We
felt like if you didn’t do what was, what had been going on
for years, you certainly would not see, you may not see an
inspector showing up when you want him|[,]” while another
testified that he paid inspectors because “[y]ou didn’t want
to get on the bad side of the inspector.” Other plumbers
testified that they paid inspectors because they could not
afford to find out if they would be treated differently by
the inspectors if they did not pay. Plumber Richard
Clements testified that failing to tip could result in an
inspector who would “give me a hard time, or I wouldn’t
get the prompt service.” Yet another plumber testified that
when Appellant Tursi asked him for a larger tip than
offered, he complied because “I felt as though there would
be some kind of problem if I didn’t do it.”
The government presented substantial evidence
demonstrating that Appellants knew that it was improper
to accept monetary payments from plumbers whose work
they were inspecting, thus undermining Appellants’ view
that they were voluntarily (and therefore properly) accept-
ing “tips.” Each Appellant was required, at the time of
hiring, to sign an ethics statement acknowledging that he
was not permitted to accept “any offer, any gift, favor or
service that might tend to influence” him in the discharge
of his duties. Every inspector hired between 1980 and
2000 — including all of the Appellants — was told that it
was against city policy for employees to take any cash in
any amount at any time. An ethics directive from the
Mayor of Philadelphia permitted City employees to accept
up to $100 in gifts per year from any one source, but
rapidly as possible so that the plumbers could move on to their next
project.
App. 9
expressly disallowed their acceptance of cash in any
amount.
Evidence of how Appellants accepted the plumbers’
payments reinforced the government’s contention that
Appellants knew the payments were improper. Plumbers
concealed the payments to Appellants in the pages of their
work permit or by folding it up and transferring the money
in what was commonly referred to as a “green handshake.”
In a conversation taped by a cooperating witness and
played for the jury, Appellant Mulderig explained that
“every time they hand me a permit I, I used to fold it over
like that and then put it in my pocket, you know what I
mean.... when I would go to like Boston Market or
something for lunch I would go in the men’s room and take
it out and put it in my, you know, take the money out of
there and put it in my pocket.” Moreover, video taken by
the hidden cameras in the city vehicles apparently re-
vealed numerous instances of Appellants surreptitiously
receiving the payments and endeavoring to keep the
payments hidden.
In support of the Hobbs Act’s requirement that any
extortionate conduct have an effect on commerce, the
government presented evidence that each Appellant
accepted tips from plumbers who purchased supplies made
out-of-state, i.e., outside of Pennsylvania. Many of these
same plumbers, however, testified that the payments they
made to Appellants did not affect their ability to make out-
of-state purchases.
On October 18, 2002, the jury convicted all Appellants
except William Jackson of the RICO charges, and all
Appellants of the Hobbs Act extortion charges. The Dis-
trict Court imposed varying sentences on Appellants,
App. 10
ranging from twelve months of home confinement to
thirty-four months’ imprisonment, as well as fines, as-
sessments and probation. These eight, timely, consolidated
appeals followed.
II.
The District Court properly exercised subject matter
jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction over the judgments of conviction pursuant to
28 U.S.C. § 1291, and over the sentences pursuant to 18
U.S.C. § 3742. Appellants raise a number of challenges to
their convictions which we will address seriatim.
A. Appellants’ challenges to the jury instructions’ formu-
lation of the Hobbs Act’s effect cn commerce require-
ment and the sufficiency of the government’s evidence
of such effect.
Appellants’ primary arguments on appeal challenge
the formulation of the Hobbs Act’s effect on commerce
element in the District Court’s jury instructions, as well as
the sufficiency of the evidence adduced hy the government
to prove such effect. The Hobbs Act, 18 U.S.C. § 1951(a),
provides:
Whoever in any way or degree obstructs, delays,
or affects commerce or the movement of any arti-
cle 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 property in furtherance of a plan or
purpose to do anything in violation of this section
shall be fined under this title or imprisoned not
more than twenty years, or both.
18 U.S.C. § 1951(a).
App. 11
In pertinent part, the District Court instructed the
jury as follows on the Hobbs Act charges:
You do not even have to find that there was an
actual effect on commerce. All that is necessary
to prove this element is that the natural conse-
quences of the extortion — of the money payment,
potentially caused an effect on interstate com-
merce to any degree, however minimal or slight.
Payment from a business engaged in interstate
commerce satisfies the requirement of an effect
on interstate commerce. If the resources of a
business are expended or diminished as a result
of the payment of money, then interstate com-
merce is affected by such payment and may re-
duce the assets available for purchase of goods,
services or other things originating in other
states.
Under this instruction, the jury could convict even if it
did not find that Appellants’ extortionate acts actually
affected commerce, so long as it concluded that the “natu-
ral consequences” of the extortionate acts “potentially
caused” just a “minimal” effect on interstate commerce.
The jury was instructed to find this standard satisfied
upon proof of a “[p]jayment” made by plumbers “engaged in
interstate commerce,” which payment “diminished” the
plumbers’ “resources,” i.e., by proof of a “depletion of
assets.”
Appellants explicitly challenge the jury instruction’s
statement that proof of a “potential” effect on commerce is
sufficient to prove the effect on commerce element under
the Hobbs Act, and implicitly challenge the jury instruc-
tion’s statement of the depletion of assets theory. In
Appellants’ view, the reference to “potential” effect is
flawed because the Hobbs Act speaks in action verbs —
App. 12
“obstructs, delays or affects commerce” — and conduct
which merely has the “potential” to affect commerce does
not actually obstruct, delay or affect commerce. Appellants
also argue that after a series of Supreme Court decisions
between 1995 and 2000 construing the Commerce Clause,
it would be constitutionally doubtful to interpret the
Hobbs Act as applying to conduct which merely potentially
affects commerce. Appellants further contend that the so-
called “depletion of assets” theory — whereby proof that a
Hobbs Act violation depletes the assets of a business
engaged in interstate commerce conclusively establishes
the effect on commerce requirement — was incorrectly
applied here in light of the plumbers’ testimony that the
payments they made to Appellants did not in fact affect
their ability to engage in interstate commerce. We read
this latter contention as a challenge to both the jury
instruction’s formulation of the depletion of assets theory,
and to the sufficiency of the government’s evidence of
effect on commerce by way of the depletion of assets
theory.
To the extent that Appellants challenge the District
Court’s interpretation of the Hobbs Act in formulating its
jury instructions, or the fidelity of its interpretation and
instructions to the United States Constitution, we exercise
plenary review. United States v. Singletary, 268 F.3d 196,
198-99 (3d Cir. 2001) (citations omitted); Gibbs v. Cross,
160 F.3d 962, 964 (3d Cir. 1998) (citations omitted). In
reviewing a challenge to the sufficiency of the evidence, we
“must determine whether, viewing the evidence most
favorably to the government, there is substantial evidence
to support the jurys guilty verdict.” United States v.
Idowu, 157 F.3d 265, 268 (3d Cir. 1998) (citation and
___ internal quotation marks omitted). We “will sustain the
App. 13
verdict if ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.’ Thus, ‘a claim of insufficiency of the evidence
places a very heavy burden on an appellant.’” United
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citations
and internal quotation marks omitted).
A comprehensive review of our Hobbs Act precedent
over the past thirty years compels us to reject Appellants’
challenges regarding the Hobbs Act’s effect on commerce
requirement and the depletion of assets theory of proving
such an effect. We begin with United States v. Mazzei, 521
F.2d 639 (3d Cir. 1975) (en banc). Mazzei, a Pennsylvania
state senator, engineered lease transactions between state
agencies and a private entity, B.M.I., Inc., and extorted
payments from B.M.I. in connection with the transactions.
He was convicted of two counts of Hobbs Act extortion.
Mazzei argued on appeal that the government had failed
to satisfy the Hobbs Act’s effect on commerce requirement
because although B.M.I. was deemed to be engaged in
interstate commerce, the lease transactions which consti-
tuted the unlawful extortionate acts were local and did not
themselves affect interstate commerce. We rejected this
argument, accepting instead the government’s contention
that depletion of assets of an entity engaged in interstate
commerce was enough, as “[t]his position accord[ed] with
our previous holdings that where the resources of an
interstate business are depleted or diminished ‘in any
manner’ by extortionate payments, the consequent im-
pairment of ability to conduct an interstate business is
sufficient to bring the extortion within the play of the
Hobbs Act.” Mazzei, 521 F.2d at 642 (citing United States
v. Addonizio, 451 F.2d 49 (3d Cir. 1972); United States v.
Provenzano, 334 F.2d 678 (3d Cir. 1964)). We found that
App. 14
the facts easily satisfied this standard. B.M.I.’s subsidiar-
ies “purchase[d] materials in a number of states for use in
manufacturing products sold in almost every state[,]” id.,
and the payments the subsidiaries made diminished
“funds available to B.M_.I. for use in []} interstate activities
... and its interstate business must to this extent be
curtailed.” Id. We “conclude[d] that the Hobbs Act may
constitutionally be construed to reach the indirect burdens
placed on interstate commerce by the extortionate activi-
ties alleged in this case and that such a construction of the
statute accords with Congressional intent to proscribe
extortion which ‘in any way or degree obstructs, delays, or
affects commerce.’” Id. (citations omitted).
In United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979),
we considered appeals of substantive and conspiracy
convictions under the Hobbs Act. The Pennsylvania
Department of Transportation (the “Department”) leased
equipment from private owners in order to perform snow
removal, general road maintenance and repair responsi-
bilities. Defendants were Department employees who had
accepted bribes from such private owners in exchange for
leasing their equipment. The government established at
trial “that all the lessors had bought fuel for their equip-
ment that had travelled in interstate commerce[,]” and
that most of the lessors “had purchased equipment and/or
supplies that had travelled in interstate commerce.”
Cerilli, 603 F.2d at 423.
On appeal, defendants argued that the evidence of
interstate commerce was insufficient to support their
Hobbs Act convictions. We disagreed, reiterating that
“where the resources of an interstate business are de-
pleted or diminished in any manner by extortionate
payments, the consequent impairment of ability to conduct
App. 15
an interstate business is sufficient to bring the extortion
within the play of the Hobbs Act.” Id. at 424 (quoting
Mazzei, 521 F.2d at 642) (other citations and internal
quotation marks omitted). We continued that “[aJll that is
required to bring an extortion within the statute is proof of
a reasonably probable effect on commerce, however mini-
mal, as result of the extortion.” Jd. (citations omitted). As
in Mazzei, we found that the government’s proof of deple-
tion of assets of entities who purchased goods in interstate
commerce satisfied this standard. Id.
We then considered and rejected defendants’ argu-
ment in Cerilli that the depletion of assets theory “should
only be applied where the victim of the extortion is itself
an interstate business.” Id. We concluded that such a
limited view of the Hobbs Act’s scope would be “inconsis-
tent with Congress’ purpose ‘to use all the constitutional
power Congress has to punish interference with interstate
commerce... .’” Id. (quoting Stirone v. United States, 361
U.S. 212, 215 (1960)). We acknowledged that “the effect on
interstate commerce proven here is certainly not very
large,” but made clear that “the Hobbs Act does not pro-
scribe only those extortions that have a large effect on
commerce.” Jd. We therefore affirmed the following jury
instruction given by the district court:
I instruct you instead that you may find inter-
state commerce with the meaning of these in-
structions if you find beyond a reasonable doubt
that the victim purchased goods in interstate
commerce and that the money was extorted from
App. 16
him; then, as-a matter of law, commerce was af-
fected.
Id. at 424 n.11. Thus, Cerilli clearly endorsed the depletion
of assets theory under the Hobbs Act as formulated by the
District Court here.’
Just last year, in United States v. Haywood, 363 F.3d
200 (3d Cir. 2004), w> reaffirmed our adherence to the
depletion of assets theory of proving a Hobbs Act effect on
commerce, and announced that proof of a “potential” effect
is all that is required under the Hobbs Act. Haywood had
been convicted of a substantive Hobbs Act violation for
robbing a Virgin Islands tavern. A witness testified that
the defendant and his accomplice stole “approximately $40
to $60 in bills and approximately $10 in coins.” Haywood,
363 F.3d at 202. A Virgin Islands detective testified at trial
that the tavern sold Heineken and Miller beer, both of
which were shipped in “from the mainland United States.”
Id. at 210. On appeal, Haywood contended “that the
government did not produce sufficient evidence to show
that the bar purchased goods or services from outside the
Virgin Islands.” Id. Haywood primarily contested the
foundation of the detective’s testimony concerning effect
on commerce, arguing that the government was required
* We reaffirmed Cerilli’s endorsement of the depletion of assets
theory in United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) (en
banc). There, we reinstated defendants’ Hobbs Act conspiracy convic-
tions following the district court’s grant of their motion for judgment of
acquittal. In pertinent part, we observed that “[i]n substantive Hobbs
Act convictions, the requisite nexus to interstate commerce has been
found in the depletion of assets theory, because the payment of an
extortion demand may reduce the assets available for the purchase of
goods originating in other states.” Jannotti, 673 F.2d at 592-93 (citing
Cerilli, 603 F.2d at 424) (other citation omitted).
App. 17
to adduce independent evidence such as an invoice in
order to prove that the tavern purchased supplies originat-
ing in mainland United States. We rejected this argument.
More germanely, we also rejected Haywood’s contention
“that there is no evidence to support the exercise of federal
jurisdiction over what is really a territorial crime.” Jd. at
211 n.7. Earlier in the opinion, in laying out the control-
ling Hobbs Act principles, we stated that “[i]f the defen-
dants’ conduct produces any interference with or effect
upon interstate commerce, whether slight, subtle or even
potential, it is sufficient to uphold a prosecution under
[§ 1951).” Id. at 209-10 (citation omitted). We further noted
that “[a] jury may infer that interstate commerce was
affected to some minimal degree from a showing that the
business assets were depleted.” Jd. at 210 (citation omit-
ted). Applying these principles, we found it “clear that
interstate commerce was affected, however minimally,
because the bar sold Heineken and Miller beer that came
from outside the Virgin Islands[,]” id. at 211 n.7, and
because “the bar’s assets were depleted” by the robbery. Jd.
There thus appears to be little doubt that our precedent
supports the District Court’s use of “potential” effect and its
formulation of the depletion of assets theory in the jury
instructions.” Appellants counter with several arguments,
* Our view on these related issues in the context of substantive
Hobbs Act cases is in accord with the weight of authority in our sister
circuits. The majority of our sister circuits have endorsed the “poten-
tial” effect reading of the Hobbs Act’s effect on commerce requirement.
See United States v. Rivera Rangel, 396 F.3d 476, 482-83 (1st Cir. 2005)
(“The Hobbs Act .. . has . . . been held to reach even those effects which
are merely potential or subtle.”) (quoting United States v. Hathaway,
534 F.2d 386, 396 (1st Cir. 1976)); United States v. Lynch, 367 F.3d
1148, 1155 (9th Cir. 2004) (“interstate nexus requi.«.ment is satisfied ‘by
proof of a probable or potential impact’ on interstate commerce”)
(Continued on following page)
App. 18
(citation omitted); United States v. Curtis, 344 F.3d 1057, 1070 (10th
Cir. 2003) (“We have repeatedly interpreted the ‘broad language’ of the
Hobbs Act to mean that for the Government to obtain a conviction
under the Act, the evidence need show only a potential or de minimis
effect on interstate commerce.”) (citations omitted); United States v.
Silverio, 335 F.3d 183, 186 (2d Cir. 2003) (“effect upon interstate
commerce, whether slight, subtle or even potential, [] is sufficient to
uphold a prosecution under the Hobbs Act.”) (citations omitted); United
States v. Peterson, 236 F.3d 848, 852 (7th Cir. 2001) (a “minimal
potential effect on commerce is all that need be proven to support a
conviction [under the Hobbs Act].”) (quoting United States v. Stillo, 57
F.3d 553, 558 n.2 (7th Cir. 1995)); United States v. Brantley, 777 F.2d
159, 162 (4th Cir. 1985) (Surisdictional predicate [of Hobbs Act] . . . may
be shown by proof of probabilities without evidence that any particular
commercial movements were affected.”); but see United States uv.
Williams, 308 F.3d 833, 838 (8th Cir. 2002) (“the [Hobbs Act’s) plain
language requires an actual effect on interstate commerce, not just a
probable or potential impact.”); United States v. Carcione, 272 F.3d
1297, 1301 n.5 (11th Cir. 2001) (“A substantive violation of the Hobbs
Act requires an actual, de minimis affect on commerce.”) (citation
omitted). It is unclear where the Sixth Circuit stands. Compare United
States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000) (“There is no require-
ment that there be an actual effect on interstate commerce — only a
realistic probability that [an offense] will have an effect on interstate
commerce.”) (citation and internal quotation marks omitted) with
United States v. DiCarlantonio, 870 F.2d 1058, 1061 (6th Cir. 1989) (“a
substantive Hobbs Act violation requires an actual effect on interstate
commerce”).
There appears to be no disagreement among our sister circuits as
to the propriety of the depletion of assets theory as a means of estab-
lishing the Hobbs Act’s effect on commerce requirement. See, e.g.,
Curtis, 344 F.3d at 1070 (“Simply proving that a robbery depleted the -
assets of a business engaged in interstate commerce will suffice.”)
(citation omitted); United States v. Williams, 342 F.3d 350, 354-55 (4th
Cir. 2003) (“Commerce is sufficiently affected under the Hobbs Act
where a robbery depletes the assets of a business that is engaged in
interstate commerce.”) (citation omitted); United States v. Jamison, 299
F.3d 114, 120 (2d Cir. 2002) (“a robbery or extortion that depletes the
assets of a business operating in interstate commerce will satisfy the
jurisdictional requirement of the Hobbs Act by a minimal showing of
effect on commerce.”) (citations omitted); United States v. Turner, 272
F.3d 380, 386-87 & n.2 (6th Cir. 2001); United States v. Diaz, 248 F.3d
(Continued on following page)
App. 19
none of which alter our view. First, Appellants invoke a
trilogy of Supreme Court Commerce Clause cases begin-
ning with United States v. Lopez, 514 U.S. 549 (1995), and
proceeding to United States v. Morrison, 529 U.S. 598
(2000) and Jones v. United States, 529 U.S. 848 (2000).
Appellants argue that construing the Hobbs Act to require
only proof of a potential effect would be constitutionally
doubtful in light of this trilogy of cases, thus compelling a
strict construction of the Act as requiring proof of an
“actual effect” in order to avoid constitutional doubt. But
Appellants do not clearly articulate what would be consti-
tutionally doubtful about interpreting the Hobbs Act to
require only proof of a potential effect on commerce. We
surmise that after the Lopez-Morrison-Jones trilogy, the
‘purported constitutional doubtfulness of such a construc-
tion stems from those decisions’ holdings that Congress
may only regulate activities “having a substantial relation
to interstate commerce... . i.e. those activities that sub-
stantially affect interstate commerce... .” Lopez, 514 U.S.
at 558-59. But we have already rejected the argument that
1065, 1084-85 (11th Cir. 2001) (“Robberies or extortions perpetrated
upon individuals are prosecutable under the Hobbs Act when ... the
crime depletes the assets of an individual who is directly engaged in
interstate commerce”) (citations omitted); United States v. Bailey, 227
F.3d 792, 798 (7th Cir. 2000) (under depletion of assets theory, “the
government shows that commerce is affected when an enterprise, which
either is actively engaged in interstate commerce or customarily
purchases items in interstate commerce, has its assets depleted
through extortion, thereby curtailing the victim’s potential as a
purchaser of such goods.”) (citations and internal quotation marks
omitted); United States v. Hebert, 131 F.3d 514, 521 (5th Cir. 1997)
(defining required “effect on interstate commerce [for Hobbs Act
purposes] as a depletion of the assets of a business that purchases out-
of-state goods and supplies.”) (citations omitted); United States v. Bucci,
839 F.2d 825, 830 (ist Cir. 1988).
App. 20
Lopez and its progeny require proof of a “substantial
effect” on commerce in an individual case in order to show
a Hobbs Act violation. See United States v. Clausen, 328
F.3d 708, 711 (3d Cir. 2003). In Clausen, we followed the
lead of other circuits, including the Fifth Circuit, which
had held that after Lopez, “legislation concerning an
intrastate activity will be upheld if Congress could ration-
ally have concluded that the activity, in isolation or in the
aggregate, substantially affects interstate commerce.” See
United States v. Robinson, 119 F.3d 1205, 1211 (5th Cir.
1997); see also United States v. Bolton, 68 F.3d 396, 399
(10th Cir. 1995) (“Lopez did not ... require the govern-
ment to show that individual instances of the regulated
activity substantially affect commerce to pass constitu-
tional muster under the Commerce Clause. Rather, the
Court recognized that if a statute regulates an activity
which, through repetition, in aggregate has a substantial
affect on interstate commerce, . .. ‘the de minimis charac-
ter of individual instances arising under that statute is of
no consequence.’”) (citing Lopez, 514 U.S. at 558-59)
(internal citations omitted) (ellipses added) (emphasis
omitted). With respect to the Hobbs Act specifically, we
stated in Clausen “‘that the cumulative result of many
Hobbs Act violations is a substantial effect upon interstate
commerce,’ and that substantial effect empowers Congress
to regulate pursuant to the Commerce Clause.” Clausen,
328 F.3d at 711 (quoting Robinson, 119 F.3d at 1215).
Importantly, we held that “[fiJn any individual case, proof
of a de minimis effect on interstate commerce is all that is
required.” Jd. (citations omitted). And, as we announced
recently in Haywood, such a “de minimis effect” in an
individual Hobbs Act case need only be “potential.” See
Haywood, 363 F.3d at 209-10 (citation omitted).
App. 21
Appellants also suggest that contrary to our reading of
Jannotti, we held there that proof of an actual effect on
commerce was required under the Hobbs Act. We disagree.
Appellants rely on our statement in Jannotti that “[a]
substantive violation of the Hobbs Act generally is sup-
ported by proof of an actual effect on commerce.” 673 F.2d
at 591 (citations omitted) (emphasis added). But saying
that certain evidence “generally” supports a violation is
not the same as saying that only that evidence supports a
violation. :
Finally, Appellants contend that the jury instruction’s
formulation of the depletion of assets theory created a
mandatory presumption which improperly precluded the
jury from considering evidence that commerce was not in
fact affected by the plumbers’ payments. As the precedent
above makes clear, however, proof of extortion payments
by a person or entity engaged in interstate commerce is all
the government needs to prove in order to satisfy the
Hobbs Act’s effect on commerce requirement, and the jury
instruction faithfully expressed this principle. It is con-
ceivable that, as many of the plumbers testified, the
payments the plumbers made did not actually result in a
reduction in their engagement in interstate commerce -—
for example, the plumbers may have absorbed the cost of
those payments by cutting their profits or by reducing
their labor force. But as we have repeatedly noted, the
government need only prove that Hobbs Act extortion
potentially affected commerce. Our “potential” effect
reading of the Hobbs Act explains our continued adherence
to the depletion of assets theory, because it is beyond cavil
that the depletion of assets of a person engaged in inter-
state commerce has at least a “potential” effect on that
person’s engagement in interstate commerce. Indeed, had
App. 22
the District Court instructed the jury that, notwithstand-
ing proof of depletion of assets of plumbers engaged in
interstate commerce, it could nonetheless acquit if it
credited those plumbers’ conclusory testimony that their
payments to Appellants did not affect their ability to
purchase supplies made out-of-state, it would have mis-
stated the law of this Circuit — extortion which depletes
the assets of persons or businesses engaged in interstate
commerce is, as a matter of law, a Hobbs Act violation.
The above discussion leaves little work left to do in
addressing Appellants’ argument that the government’s
evidence of depletion of assets of plumbers engaged in
interstate commerce was insufficient. The jury instruc-
tion’s formulation of the depletion of assets theory accords
with our precedent. Appellants do not dispute that there
was ample evidence that Appellants took payments from
various plumbers, and that each Appellant took payments
from plumbers who were engaged in interstate commerce,
i.e. who purchased supplies made out-of-state. This
evidence is more than sufficient to establish the Hobbs
Act’s effect on commerce requirement. Therefore, we
conclude that the District Court’s instruction that proof of
a “potential” effect on commerce via the depletion of assets
theory was correct, and that the government’s evidence
was sufficient to support Appellants’ Hobbs Act convictions
pursuant to that instruction.
B.- Appellants’ challenges to the sufficiency of the evi-
dence that they committed extortion “under color of
official right” within the meaning of the Hobbs Act.
Appellants (except for Leone) also challenge their
Hobbs Act convictions on grounds that the government’s
evidence that they committed their extortion “under color
App. 23
of official right” was insufficient. As noted, in reviewing
the sufficiency of the evidence, we “must determine
whether, viewing the evidence most favorably to the
government, there is substantial evidence to support the
jury’s guilty verdict.” Idowu, 157 F.3d at 268. We “will
sustain the verdict if ‘any rational trier of fact could have
found the essential elements of the crime beyond a rea-
sonable doubt.’ Thus, ‘a claim of insufficiency of the evi-
dence places a very heavy burden on an appellant.’” Dent,
149 F.3d at 187.
The Hobbs Act defines “extortion” as “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.” 18 U.S.C. § 1951(b)(2).
“Thus, the statute supports two classes of extortion:
extortion induced by ‘wrongful use of force’ and extortion
‘under color of official right.’” United States v. Antico, 275
F.3d 245, 255 (8d Cir. 2001). Here, the government pur-
sued the “under color of official right” theory of Hobbs Act
extortion. In order to prove Hobbs Act extortion “under
color of official right,” “the Government need only show
that a public official has obtained a payment to which he
was not entitied, knowing that the payment was made in
return for official acts.” Evais v. United States, 504 U.S.
255, 268 (1992). In other words, the government need not
prove that the public official induced the making of the
payment, or that the public official acted or refrained from
acting as a result of payments made.
The government’s evidence here was more than
sufficient to support a finding of extortion “under color of
official right.” It was established at trial that the plumbing
code conferred discretion on plumbing inspectors to re-
quire plumbers to redo a project even where the project
App. 24
was technically code-compliant. Numerous plumbers
testified that it was important to minimize the extent to
which they and expensive personnel and equipment were
forced to wait around at a job site for an inspector to come
and approve the work. These plumbers testified that they
therefore made payments to Appellants because Appel-
lants were plumbing inspectors and possessed authority
which could be exercised to the plumbers’ detriment. One
plumber who made payments to Appellants testified that
he made the payments because it made “the job run that
much better,” made “things work easier,” and made “every-
thing go much better.” Another plumber, Andrew Krom-
chad, testified that after an incident in which Appellant
Urban initially refused to allow him to finish a job by
backfilling, he, Kromchad, began making payments to
avoid “hassle.” When Mr. Kromchad asked Appellant
Urban why he initially refused to permit completion of the
job, Urban responded that Kromchad was like his old boss;
Kromchad testified that what he believed Urban meant by
thi: was that his old boss refused to “tip” inspectors. Yet
another plumber, Michael Brescia, testified that he “felt as
though there would be some kind of problem” if he did not
“tip” the inspectors.
The government also adduced evidence demonstrating
that Appellants had knowledge that they were receiving
the plumbers’ payments in return for favorable exercise of
government authority. At the time of hiring, plumbing
inspectors were required to sign an ethics statement
whereby they agreed not to “accept, nor offer any gift,
favor or service that might tend to influence me in the
discharge of my duties.” There was testimony from a city
personnel manager that every plumbing inspector hired
between 1980 and 2000 — a time period encompassing the
App. 25
dates of hire of each of the Appellants — was instructed
that they were not permitted to take money. The personnel
manager testified that the prohibition on taking money
was reiterated at subsequent integrity training sessions.
Coupled with the evidence concerning the prohibition on
taking money was ample evidence that Appellants did not
receive the plumbers’ payments publicly, or at least openly
in public. Rather, plumbers would conceal the payments
inside the pages of a permit or would fold up cash and
transfer it by way of a “green handshake.”
Thus, the government adduced substantial evidence
that: (1) plumbers made payments to Appellants knowing
that Appellants were public officials exercising govern-
mental authority; (2) plumbers, knowing of the discretion
in the plumbing code and desirous of punctual inspections,
made payments in order to assure advantageous exercise
of that government authority by Appellants; and (3)
Appellants knew that. the plumbers’ payments were made
for an improper purpose, i.e., the influencing of their
governmental authority. This evidence squarely supports
the showing required to prove extortion “under color of
official right” as explained by the Supreme Court in
Evans. Contentions like Appellant Urban’s that there was
no evidence that he “failed to perform his job as a result of
his being tipped and no one claimed to have tipped [him]
in exchange for anything,” or like Appellant Mulderig’s
that Appellants were not influenced by the plumbers’
payments, even if accurate, are unavailing. We therefore
find that Appellants have failed to meet the stringent
standard for overturning their Hobbs Act convictions on
grounds of insufficient evidence of extortion “under cclor of
official right.”
App. 26
C. Appellants’ challenges to their RICO convictions.
Appellants O’Malley, Rachuba, Tursi and Urban
contend that the government failed to prove that they
directed the affairs of an “enterprise” as required to
support a RICO conviction. Appellants also argue that the
government failed to prove the existence of an “enterprise”
for purposes of their RICO convictions because the CSD
cannot be such an “enterprise.” We reject these conten-
tions.
Appellants were charged with violating § 1962(c) of
RICO, which provides that “[i]t shall be unlawful for any
person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or collection of
unlawful debt.” 18 U.S.C. §1962(c). “To establish a
§ 1962(c) RICO violation, the government must prove the
following four elements: ‘(1) the existence of an enterprise
affecting interstate commerce; (2) that the defendant was
employed by or associated with the enterprise; (3) that the
defendant participated, either directly or indirectly, in the
conduct or the affairs of the enterprise; and (4) that he or
she participated through a pattern of racketeering activ-
ity.’” United States v. Irizarry, 341 F.3d 273, 285 (3d Cir.
2003) (quoting United States v. Console, 13 F.3d 641, 652-
653 (3d Cir. 1993)).
Appellants contend that the government failed to
prove that they directed the affairs of the CSD or partici-
pated in its operation or management. In order to partici-
pate, directly or indirectly, in the conduct of an enterprise's
affairs for purposes of § 1962(c), “one must have some part
App. 27
in directing those affairs.” Reves v. Ernst & Young, 507
U.S. 170, 179 (1993). But “one need not hold a formal
position within an enterprise in order to ‘participate’ in its
affairs.” United States v. Parise, 159 F.3d 790, 796 (3d Cir.
1998) (citing Reves, 507 U.S. at 179). Moreover, “the
‘operation or management’ test does not limit RICO
liability to upper management because ‘an enterprise is
operated not just by upper management but also by lower-
rung participants in the enterprise who are under the
direction of upper management.’” Parise, 159 F.3d at 796
(quoting Reves, 507 U.S. at 184) (internal quotation marks
omitted). Reves thus “made clear that RICO liability may
extend to those who do not hold a managerial position
within an enterprise, but who do nonetheless knowingly
further the illegal aims of the enterprise by carrying out
the directives of those in control.” Id.
We have applied Reves to limit RICO liability under
§ 1962(c) to those instances where there is “‘a nexus
between the person and the conduct in the affairs of an
enterprise.” Parise, 159 F.3d at 796 (quoting University of
Maryland at Baltimore v. Peat, Marwick, Main & Co., 996
F.2d 1534, 1539 (3d Cir. 1993)). The government’s evidence
sufficiently established the existence of such a nexus here
simply by demonstrating that the City employed Appel-
lants to perform plumbing inspections and related work,
and that Appellants in fact performed that work.
Appellants also argue that the government faiied to
prove the existence of an “enterprise.” RICO defines
“enterprise” as “includ{ing] any individual, partnership,
corporation, association, or other legal entity, and any
union or group of individuals associated in fact although
not a legal entity[.}” 18 U.S.C. § 1961(4). In order to prove
the requisite “enterprise,” we require proof “(1) that the
App. 28
enterprise is an ongoing organization with some sort of
framework for making or carrying out decisions; (2) that
the various associates function as a continuing unit; and
(3) that the enterprise be separate and apart from the
pattern of activity in which it engages.” Irizarry, 341 F.3d
at 286 (citations omitted).
Here, the government adduced evidence establishing
each of the three elements of “enterprise” set forth in
Irizarry. There is no dispute that the CSD is “an ongoing
organization with some sort of framework for making or
carrying out decisions.” In order to prove the second
element — “associates function[ing] as a continuing unit” —
we have said that the government must show “that each
person performl[ed] a role in the group consistent with the
organizational structure established by the first element
and which furthers the activities of the organization.”
United States v. Riccobene, 709 F.2d 214, 223 (3d Cir.
1983), overruled on other grounds by Griffin v. United
States, 502 U.S. 46 (1991). Again, the government offered
sufficient evidence to support this element. There is no
question that Appellants worked for the “enterprise,” i.e.,
the CSD, and they did so on a continuous basis, daily
issuing permits and performing inspections of plumbing
projects in Philadelphia. Finally, there is no dispute that
the CSD was distinct from Appellants’ extortionate acts.
The CSD is an arm of the government of the City of
Philadelphia created for the purpose of issuing permits for
construction projects in Philadelphia and overseeing those
projects to ensure their compliance with code regulations.
There is no contention that the CSD was created and
existed for the purpose of enabling Appellants’ extortionate
acts.
App. 29
Appellants suggest that an “enterprise” cam only be an
“illegal organization,” and that therefore “an employment
group [like the CSD] created by the City is definitely not
an enterprise.” This misstates the law under RICO. The
plain text of RICO defines enterprise as, inter alia, a “legal
entity[.]” See 18 U.S.C. § 1961(4). And we have frequently
found government entities to be “enterprises” for RICO
purposes. See, e.g., Genty v. Resolution Trust Corp., 937
F.2d 899, 906-07 (3d Cir. 1991) (holding that township can
be an “enterprise” for RICO purposes) (citation omitted);
Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1018 (3d Cir.
1987) (noting that court can be an “enterprise”); United
States v. Bacheler, 611 F.2d 443, 450 (8d Cir. 1979) (holding
that Philadelphia Traffic Court can be an “enterprise”);
United States v. Frumento, 563 F.2d 1083, 1092 (3d Cir.
1977) (holding that the Pennsylvania Department of
Revenue’s Bureau of Cigarette and Beverage Taxes was an
“enterprise”).
Finally, Appellants assert that the government failed
to prove an agreement among Appellants to participate in
an enterprise through a pattern of racketeering activities.
But Appellants were charged with committing substantive
RICO violations under 18 U.S.C. § 1962(c), which does not
require proof of any such agreement. See Parise, 159 F.3d
at 794 (citation omitted). Accordingly, we find that the
government adduced sufficient evidence to support Appel-
lants’ RICO convictions, and will therefore affirm those
convictions.
App. 30
D. Appellants’ challenges to the sufficiency of the indict-
ment and the District Court’s denial of their motions
for a bill of particulars.
Appellants Jackson, O’Malley, Rachuba and Tursi
argue that the indictment failed to allege sufficient infor-
mation enabling them to prepare a defense. They also
contend that given the insufficiency of the indictment, the
District Court erred in denying their motion for a bill of
particulars. We reject these challenges.
We deal first with the sufficiency of the indictment.
We exercise plenary review over a challenge to the suffi-
ciency of an indictment. United States v. Whited, 311 F.3d
259, 262 (3d Cir. 2002) (citation omitted). An indictment
must contain “a plain, concise and definite written state-
ment of the essential facts constituting the offense
charged.” Fed. R. Crim. P. 7(c\(1). “We consider an indict-
ment sufficient if, when considered in its entirety, it
adequately informs the defendant of the charges against
her such that she may prepare a defense and invoke the
double jeopardy clause when appropriate.” Whited, 311
F.3d at 262 (citations omitted).
The indictment here tracked the language of the
Hobbs Act, stating that Appellants “knowingly and unlaw-
fully-obstructed, delayed and affected commerce, and the
movement of articles and commodities in commerce, and
attempted to do so, by extortion” by “unlawfully ob-
tain[ing] and attempt[ing] to obtain property and things of
value.” The indictment further identified in chart form the
approximate dollar amounts of the “things of value” (the
payments taken by Appellants) as well as the persons and
businesses who made the payments. In other words, the
indictment informed Appellants of the statute they were
App. 31
charged with violating, the elements of a violation of that
statute, the persons or businesses victimized, and the time
period during which the payments were made. As such,
the indictment more than adequately informed Appellants
of the charges leveled against them, and enabled them to
prepare their defense and, if applicable, invoke the double
jeopardy clause.
We also disagree with Appellants’ contention that the
District Court erred in denying their motions for a bill of
particulars. We review an order denying a motion for a bill
of particulars for abuse of discretion. See United States v.
Eufrasio, 935 F.2d 553, 575 (3d Cir. 1991) {citation omit-
ted). A bill of particulars is a “formal, detailed statement of
the claims or charges brought by a plaintiff or a prosecu-
tor[.]” Black’s Law Dictionary 177 (8th ed. 2004). The
purpose of a bill of particulars is “to inform the defendant
of the nature of the charges brought against him, to
adequately prepare his defense, to avoid surprise during
the trial and to protect him against a second prosecution
for an inadequately described offense.” Addonizio, 451 F.2d
at 63-64. Only where an indictment fails to perform these
functions, and thereby “significantly impairs the defen-
dant’s ability to prepare his defense or is likely to lead to
prejudicial surprise at trial[,]” United States v. Rosa, 891
F.2d 1063, 1066 (3d Cir. 1989) (citing Addonizio, 451 F.2d
at 62-63), will we find that a bill of particulars should have
been issued.
As discussed above, the indictment provided more
than enough information to allow Appellants to prepare an
effective trial strategy. Moreover, Appellants had access
through discovery to the documents and witness state-
ments relied upon by the government in constructing its
case, including trial evidence reflecting the dates of
App. 32
payments to Appellants and the approximate amounts of
those payments.‘ This access to discovery further weakens
the case for a bill of particulars here. See United States v.
Giese, 597 F.2d 1170, 1180 (9th Cir. 1979) (“Full discovery
. obviates the need for a bill of particulars.”). The
District Court therefore did not abuse its discretion in
denying Appellants’ motions for a bill of particulars.
E. Appellant Leone’s challenge to the District Court’s
admission of videotapes produced by hidden cam-
eras installed in city vehicles.
At trial, the government entered into evidence several
videotapes produced by cameras hidden inside city vehi-
cles used by Appellants, including Appellant Leone. Appel-
lant Leone unsuccessfully moved to suppress the
videotapes, and argues on appeal that the District Court
erred in refusing to grant his suppression motion. For the
reasons that follow, we will affirm the District Court’s
denial of Appellant Leone’s suppression motion.
In February 2000, the government sought an order
from the District Court “to utilize CTV (no audio) to
videotape the activities of the targeted plumbing inspec-
tors in two City of Philadelphia vehicles while performing
their daily work routine.” The affidavit submitted by the
government in support of its request contained statements
given by several confidential sources during interviews
* This evidence apparently included a computer program prepared
by the government and provided to Appellants which enabled Appel-
lants to determine how many inspections each inspector performed for
each plumber during a specific time period, and to identify which of the
inspectors had inspected the work of which plumbers who had stated
that they made payments to inspectors.
App. 33
with the FBI. These statements detailed a relatively
widespread practice by plumbing inspectors, including
Appellants, of accepting cash payments from plumbers
whose work they inspected. On February 18, 2000, on the
basis of the government’s affidavit, the Honorable William
H. Yohn of the United States District Court for the East-
ern District of Pennsylvania issued an order authorizing
the interception of visual, non-verbal conduct and activi-
ties pursuant to Rule 41(b) of the Federal Rules of Crimi-
nal Procedure and the All Writs Act, 28 U.S.C. § 1651.
Judge Yohn found that there was probable cause to believe
that Appellants, among others, were committing Hobbs
Act violations, and found that there was probable cause to
believe that particular visual, non-verbal conduct and
activities concerning these offenses would be obtained
through video surveillance installed in the vehicles. Judge
Yohn ordered that the interception end on the earlier of (a)
thirty days from the date of the order or (b) when inter-
cepted conduct or activity “reveals the manner in which
these individuals and others as yet unknown participate in
the specified offenses and reveals the identities of their
coconspirators, their methods of operation, and the nature
of the conspiracy[.]” Judge Yohn granted several subse-
quent applications by the government to extend the order
beyond the original thirty days.
While on official inspection duty, Appellant Leone
drove one of the cars in which a video camera had been
installed. The video camera captured numerous instances
of Appellant Leone taking money from plumbers that had
been placed between the pages of permits and putting it
into his pocket despite not conducting any inspection of
the project site. Appellant Leone argues that there was not
probable cause supporting the order authorizing the
App. 34
installation of the video cameras because the only infor-
mation supporting the order was not particularized as to
him as required by the Fourth Amendment.’ He also
argues that the information contained in the government’s
affidavit did not create constitutionally sufficient probable
cause because it was stale, i.e., too much time had elapsed
between the dates referenced by the confidential sources
and the District Court’s order authorizing the installation
of the video cameras.
Appellant Leone’s contentions fail. Neither the Fourth
Amendment nor the federal wiretap statute, Title III of
the federal Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. §§ 2510-2520," proscribes the interception
and use of audio or visual data of persons not specifically
named in an application seeking judicial authorization of
such interception. See United States v. Donovan, 429 U.S.
413, 435 (1977) (“It is not a constitutional requirement
that aii those likely to be overheard engaging in incrimi-
nating conversations be named.”); United States v. Kahn,
415 U.S. 143, 152-53 (1974) (rejecting interpretation of
Title III requiring application for judicial authorization to
“identify all persons, known or discoverable, who are
committing the offense and whose communications are to
be intercepted.”) (internal quotation marks omitted);
United States v. Tehfe, 722 F.2d 1114, 1117-18 (3d Cir.
* Leone contends that the government “agrees” that he “had a
reasonable expectation of privacy in his work vehicle.” Nothing in the
government's brief undermines this statement. Thus, we will assume
that the operation of the video cameras installed in the vehicles
amounted to a Fourth Amendment search and seizure requiring the
existence of probable cause.
* We have assumed that Title III applies to video surveillance. See
United States v. Williams, 124 F.3d 411, 416 (3d Cir. 1997).
App. 35
1983).” As the Supreme Court explained in Donovan, so
long as electronic interception is justified by probable
cause that the facility or property through or at which the
intercepted communication takes place is the means or
situs of criminal activity, “the failure to identify additional
persons who are likely to be overheard engaging in in-
criminating conversations could hardly invalidate an
otherwise lawful judicial authorization.” Donovan, 429
U.S. at 435.
Our decision in Tehfe illustrates these principles. It
involved a wiretap on a phone at an address denoted “22nd
Street.” The affidavit supporting the wiretap detailed a
drug distribution ring that included defendant Tehfe as
one of its principals and sought authorization to tap the
phone of defendant Sanchez at 22nd Street. The affidavit
arguably did not specifically identify Sanchez as belonging
to or participating in the drug ring at issue. The wiretap
produced information supporting Sanchez’s arrest. The
district court granted Sanchez’s motion to suppress that
information, noting that the application seeking the
" Our sister circuits agree. See, e.g., United States v. Killingsworth,
117 F.3d 1159, 1165 (10th Cir. 1997) (rejecting contention that recording
conversations of persons unidentified in application for wiretap
authorization violated Title III); United States v. Martin, 599 F.2d 880,
884 (9th Cir. 1979), overruled on other grounds by United States v.
DeBright, 730 F.2d 1255 (9th Cir. 1984) (“There is no constitutional
requirement that the persons whose conversations may be intercepted
be named in the application.”) (citing Donovan, 429 U.S. at 427 n.15, 97
S.Ct. 658); United States v. Hyde, 574 F.2d 856, 862 (5th Cir. 1978)
(“(W]e have never required that a defendant be named in a wiretap
application or accused of using the suspected telephone before evidence
obtained by the wiretap can be used against him. One of the objects of
wiretapping is te ascertain the full extent of participation in criminal
activity, and we need not limit retrospectively the pool of potential
defendants.”).
App. 36
wiretap did not contain evidence specifically linking him to
the illegal drug activity. We reversed, explaining in perti-
nent part:
When reviewing an application, courts must also
bear in mind that search warrants are directed,
not at persons, but at property where there is
probable cause to believe that instrumentalities
or evidence of crime will be found. Zurcher v.
Stanford Daily, 436 U.S. 547, 553-560, 98 S. Ct.
1970, 1975-1978, 56 L.Ed.2d 525 (1978). The af-
fidavit in support of a warrant need not present
information that would justify the arrest of the
individual in possession of or in control of the
property. Nor is it required that the owner be
suspected of having committed a crime. Property
owned by a person absolutely innocent of any
wrongdoing may nevertheless be searched under
a valid warrant.
722 F.2d at 1117-18 (citation omitted). We then applied
these Fourth Amendment principles in Tehfe to wiretap
authorizations, focusing not on the persons specifically
identified as participants in the illegal activity, but rather
on the facility (the 22nd Street phone) employed to further
that illegal activity. Id. at 1118.
The principles expounded in Tehfe apply squarely
here. Just as there was no question that probable cause
existed that the 22nd Street phone line was being used for
criminal purposes, there is no question here that probable
cause existed that plumbing inspectors were accepting
cash payments from plumbers on inspection sites. The
Fourth Amendment and Title III require nothing more.
Appellant Leone’s staleness argument fails as well. He
argues that the only information supporting probable
App. 37
cause as to him were CS1’s statements concerning what he
witnessed as a plumbing inspector from 1992-1997. In his
view, this information could not support probable cause on
February 18, 2000, more than two years after the conclu-
sion of the time period providing the basis for CS1’s
testimony. It is true that the “[a]ge of the information
supporting a warrant application is a factor in determin-
ing probable cause[,]” United States v. Zimmerman, 277
F.3d 426, 434 (3d Cir. 2002) (citations omitted), and that
“[ilf too old, the information is stale, and probable cause
may no longer exist.” Jd. (citation omitted). But “[a]ge
alone ... does not determine staleness. ‘The determination
of probable cause is not merely an exercise in counting the
days or even months between the facts relied on and the
issuance of the warrant.’” United States v. Harvey, 2 F.3d
1318, 1322 (3d Cir. 1993) (quoting United States v. Wil-
liams, 897 F.2d 1034, 1039 (10th Cir. 1990)). “Rather, we
must also examine the nature of the crime and the type of
evidence.” Id. (citations omitted). Thus, where the facts
adduced to support probable cause describe a course or
pattern of ongoing and continuous criminality, the passage
of time between the occurrence of the facts set forth in the
affidavit and the submission of the affidavit itself loses
significance. See Tehfe, 722 F.2d at 1120; United States v.
Harris, 482 F.2d 1115, 1119 (3d Cir. 1973) (“where the
affidavit properly recites facts indicating activity of a
protracted and continuous nature, a course of conduct, the
passage of time becomes less significant.”) (citation and
internal quotation marks omitted). “[Tjhe liberal examina-
tion given staleness in a protracted criminal conduct case
‘is even more defensible in wiretap cases than in ordinary
warrant cases, since no tangible objects which can be
quickly carried off are sought.’” Tehfe, 722 F.2d at 1119-20
(citation omitted).
App. 38
When analyzed under these standards, the evidence
advanced by the government in support of its request for
authorization of the hidden cameras was not stale. The
confidential sources cited in the government’s affidavit
depicted the acceptance of payments not only as a routine
and continuous practice from 1992-1997, but, as evidenced
by CS1’s statements concerning Appellant Tursi’s extortion
in April of 1999, and payments made to inspector O’Don-
nell from April to October 1999, alse as a practice that
continued beyond 1997 into late 1999. In other words,
there was evidence that the plumbing inspectors’ miscon-
duct was an established, routine practice that had
spanned numerous years and had continued at least up
until just months prior to the District Court's initial
authorization of the video surveillance in February of
2000. We therefore conclude that the evidence of the
plumbing inspectors’ continuous misconduct leading up to
the time of the first affidavit’s issuance was not stale, and
therefore provided probable cause for the video surveil-
lance.
F. Appellant Rachuba’s challenge to the District
Court’s denial of his motion to sever his trial from
the trial of the other Appellants.
Appellant Rachuba contends that the District Court
abused its discretion in refusing to sever his trial from
that of the other Appellants because the evidence against
certain of the other Appellants “was voluminous and more
aggressive in nature” than that marshalled against him,
and “created an unavoidable spillover effect continually
prejudicing Rachuba and denying him a fair trial.” We
disagree.
App. 39
We begin with the fundamental principle that the
federal system prefers “joint trials of defendants who are
indicted together[ ]” because joint trials “promote effi-
ciency and serve the interests of justice by avoiding the
scandal and inequity of inconsistent verdicts.” Zafiro v.
United States, 506 U.S. 534, 537 (1993). For this reason,
the choice of whether to sever is reserved “to the sound
discretion of the district courts.” Zafiro, 506 U.S. at 541.
We therefore review a District Court’s denial of a motion
for severance for abuse of discretion. United States v. Hart,
273 F.3d 363, 369 (3d Cir. 2001). “[A] district court should
grant a severance under Rule 14 only if there is a serious
risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.”
Zafiro, 506 U.S. at 539.
Defendants seeking to sever bear a “heavy burden,”
Console, 13 F.3d at 655, and must demonstrate not only
abuse of discretion in denying severance, id., but also that
the denial of severance would lead to “clear and substan-
tial prejudice resulting in a manifestly unfair trial.”
United States v. Palma-Ruedas, 121 F.3d 841, 854 (3d Cir.
1997), rev'd on other grounds by United States v. Rodri-
guez-Moreno, 526 U.S. 275 (1999). “[DJefendants are not
entitled to severance merely because they may have a
better chance of acquittal in separate trials.” Zafiro, 506
U.S. at 540. “Mere allegations of prejudice are not
enough.” United States v. Reicherter, 647 F.2d 397, 400 (3d
Cir. 1981).
Appellant Rachuba has failed to meet his burden. His
argument boils down to the contention that the evidence of
payments accepted by other Appellants enhanced his own
guilt in the view of the jury. We have long held, however,
App. 40
that “‘[a] defendant is not entitled to severance merely
because the evidence against a co-defendant is more
damaging than that against him.’” United States v. Ad-
ams, 759 F.2d 1099, 1112 (3d Cir. 1985) (quoting United
States v. Dansker, 537 F.2d 40, 62 (3d Cir. 1976)). See also
Console, 13 F.3d at 655 (“Prejudice should not be found in
a joint trial just because all evidence adduced is not
germane to all counts against each defendant or some
evidence adduced is more damaging to one defendant than
others.”) (citation and internal quotation marks omitted).
Rather, “[s]lome exacerbating circumstances, such as the
jury’ inability to ‘compartmentalize’ the evidence, are
required.” Adams, 759 F.2d at 1112-13 (quoting Dansker,
537 F.2d at 62). The jury here was fully capable of com-
partmentalizing the evidence against the various Appel-
iants. The jury had at its disposal a chart which specified
which of the Appellants accepted bribes from which
plumbers, thus enabling it to effectively segregate the
evidence adduced against Rachuba from that adduced
against the other Appellants. Moreover, the District Court
expressly instructed the jury to compartmentalize the
evidence, stating in its instructions that “the fact that you
_may find a defendant guilty or not guilty of one of the
offenses should not control your verdict as to any of the
other offenses charged,” and that “you must give separate
and individual consideration to each charge against each
defendant.” We presume that the jury follows such in-
structions, see Zafiro, 506 U.S. at 540, and regard such
instructions as persuasive evidence that refusals to sever
did not prejudice the defendant. See, e.g., United States v.
Voigt, 89 F.3d 1050, 1096 (3d Cir. 1996) (finding that
App. 41
similar limiting instructions “reinforce[d]” its affirmance
of the district court’s denial of motion to sever) (citations
omitted).* For these reasons, we conclude that the District
Court did not abuse its discretion in denying Appellant
Rachuba’s motion for severance.
G. Appellant Rachuba’s contention that the District
Court erred in refusing to grant a mistrial due to ju-
rors’ inadvertent exposure to media.
Appellant Rachuba contends that the District Court
abused its discretion when it refused to grant a mistrial
because jurors were inadvertently exposed to a New York
Times article discussing a federal bribery case involving
New York City plumbing inspectors, as well as a Philadel-
phia Inquirer article reporting about guilty verdicts
handed down in a contemporaneous, though unrelated,
corruption trial in the same federal courthouse. The New
York Times article had been attached to a memorandum
entered into evidence during the testimony of the L&I
* The case before us closely resembles United States v. Garner, 837
F.2d 1404 (7th Cir. 1987). There, City of Chicago sewage inspectors had
been charged with accepting bribes from private contractors in violation
of RICO and the Hobbs Act. The inspectors were convicted following a
joint trial and appealed, among others, the District Court’s refusal to
sever their trials. The Seventh Circuit affirmed the District Court’s
refusal to sever. The court noted that, as here, the evidence adduced
against the sewage inspectors consisted almost entirely of testimony by
contractors concerning the identity of those inspectors they bribed. 837
F.2d at 1414. As such, though the amount of evidence was large, it was
not complex, and thus “the jury was able to ‘segregate the evidence into
separate intellectual boxes’ and to ‘compartmentalize the evidence
against the defendants.’” Jd. (quoting United States v. Cavale, 688 F.2d
1098, 1106, 1108 (7th Cir. 1982)). Furthermore, as here, “the jury was
instructed carefully to give the defendants separate cunsideration, and
to ignore the evidence against the other defendants.” Id.
App. 42
Department’s Administrative Services Director, Richard
Feldgus. The memorandum, issued by L&I Department
Commissioner Bennet Levin in 1993, addressed corruption
in city government and warned city employees not to take
any additional money beyond their city remuneration. The
government asked Feldgus during his testimony to read
from the memorandum. Defense counsel objected to the
government’s anticipated introduction of the article, and
the District Court sustained the objection, precluding the
article’s admission. The District Court further instructed
the jury not to read the article and ordered the govern-
ment to remove the article from the jury evidence books.
The District Court refused to dismiss any of the jurors
following a voir dire during which it questioned them
about the extent to which they had read the New York
Times article.
On the day the Philadelphia Inquirer article was
printed, Appellant Leone’s counsel, joined by, among
others, Appellant Rachuba’s counsel, moved for a mistrial
because he believed at least some of the jurors had read
the article. As with the New York Times article, the Dis-
trict Court conducted a voir dire of the jurors during which
it asked them whether they had read about or discussed
any other federal case reported in the news and, at least
as to one juror whc had specifically read the Inquirer
article, whether having read or heard any such report
would affect his impartiality. Following the voir dire, the
District Court denied the motion for a mistrial based on
exposure to the Inquirer article.
“We review a district court’s order which denies a new
trial based on alleged prejudicial information for abuse of
discretion.” Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir.
1993) (citing Gov't of Virgin Islands v. Lima, 774 F.2d
App. 43
1245, 1250 (3d Cir. 1985)). “A new trial is warranted if the
defendant likely suffered ‘substantial prejudice’ as a result
of the jury's exposure to the extraneous information.”
United States v. Lloyd, 269 F.3d 228, 238 (3d Cir. 2001)
(quoting United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir.
1991)). “In examining for prejudice, we must conduct ‘an
objective analysis by considering the probable effect of the
allegedly prejudicial information on a hypothetical average
juror.” Lloyd, 269 F.3d at 238 (quoting Gilsenan, 949 F.2d
at 95 (internal citations omitted)). We look to see whether
the allegedly prejudicial information influenced the jury
“when it deliberated and delivered its verdict, as we are
concerned with the information’s effect on the verdict
rather than the information in the abstract.” Gilsenan, 949
F.2d at 96. The party seeking the new trial bears the
burden of demonstrating a likelihood of prejudice. Waldorf,
3 F.3d at 710. “We independently review the record to
determine if that party has met that burden.” Lloyd, 269
F.3d at 238 (citing Gilsenan, 949 F.2d at 95).”
* As we explained in Lloyd, unlike many other circuits, we do not
mechanically apply a presumption of prejudice every time a jury is
exposed to extraneous information. See Lloyd, 269 F.3d at 238. Rather,
while we tend to appl. the presumption of prejudice where a juror is
directly contacted by third-parties, Lloyd, 269 F.3d at 238 (citing cases),
“we tend not to apply the presumption to circumstances in which the
extraneous information at issue is a media report, such as a television
story or newspaper article.” Jd. at 239 (citing cases). It is true that even
in the case of media exposure, we will apply the presumption of
prejudice where “the publicity that occurs is [] fundamentally prejudi-
cial... .” Waldorf, 3 F.3d at 710 n.6. But no such presumption applies
“[w)here the improper publicity is of a less serious nature... .” Jd.
(citation omitted). We find that the articles at issue here are not
“fundamentally prejudicial,” and therefore do not apply any presump-
tion of prejudice.
App. 44
In determining prejudice, we have often looked at
numerous factors, including the “extent of the jury’s
exposure to the extraneous information[,]” Lloyd, 269 F.3d
at 240 (citations omitted), the “time at which the jury
receives the extraneous information|[,]” id., “the length of
the jury’s deliberations and the structure of its verdict[,]”
id. at 241, and the existence of instructions from the court
that the jury should consider only evidence developed in
the case. Id. The District Court’s voir dire of the jurors
revealed that their exposure to the two articles was
limited to nonexistent. Eleven of the sixteen jurors re-
sponded that they had not read the New York Times
article, one juror responded that he had [sic] the read the
entire article, and the remaining jurors responded that
they had either just looked at the picture on the first page
of the article or glanced at the article’s contents. Only two
of the jurors said that they had read the Inquirer article.
The District Court’s voir dire of the jurors reveals that the
exposure of the jurors to the article was limited to non-
existent, thus supporting the absence of prejudice.
Second, the jury was exposed to the New York Times
article on the third day of a seventeen-day trial, approxi-
mately four weeks before it would deliberate. This length
of time between exposure and deliberation dilutes any
prejudice resulting from that article. See Gilsenan, 949
F.2d at 96 (finding relevant to its conclusion that no
prejudice ensued the fact that the allegedly prejudicial
information “was received at the outset of the trial and
was followed by a mass of evidence delivered over a 24-
day, six-week period.”).
Third, as in Gilsenan, the jury here delivered a “frac-
tured verdict showing that it carefully delineated among
the offenses and between the appellants[,]” id., thus
App. 45
further supporting the absence of prejudice resulting from
the two articles. The jury convicted Appellant Jackson of
Hobbs Act extortion but acquitted him on the RICO
charge. Moreover, while the jury convicted Appellants of
several Hobbs Act extortion counts, it acquitted them on
several others, particularly significant in this context
given the multiple defendants and high number of indi-
vidual counts.
Finally, the District Court specifically instructed the
jury that it should consider only evidence presented at
trial, that it must disregard any evidence as to which an
evidentiary objection was sustained, and, specifically, that
it must ignore the New York Times article. This, also,
militates against a finding of prejudice. See Gilsenan, 949
F.2d at 96 (deeming relevant to finding of no prejudice the
fact that the “jury was instructed to decide the case on the
basis only of the evidence and not extrinsic information”)
(citation omitted).
In light of the limited exposure of the jurors to the
articles, the early juncture of the trial at which any
exposure to the New York Times article took place, the
length of time intervening between exposure to the New
York Times article and deliberation, the fractured verdict,
and the District Court’s instructions admonishing the jury
not to consider stricken evidence generally, and the New
York Times article specifically, we find that Appellant
Rachuba has failed to carry his burden of establishing
prejudice, and that the District Court therefore did not
abuse its discretion in refusing to grant his motion for a
new trial on this basis.
App. 46
H. Appellants’ challenges regarding certain jury in-
structions given and not given.
Appellants Jackson, O’Malley, Rachuba and Tursi
challenge the propriety of the District Court’s refusal to
incorporate numerous jury instructions proposed by those
Appellants. Appellant Leone challenges the District
Court’s instruction relating to the Hobbs Act charge
against him, arguing that the instruction precluded his
defense that the payments he accepted were gratuities,
not bribes. We reject all of these asserted points of error.
Where the challenge to a jury instruction is a chal-
lenge to the instruction’s “statement of the legal standard,
we exercise plenary review.” United States v. Zehrbach, 47
F.3d 1252, 1260 (3d Cir. 1995) (citations omitted). Other-
wise, we review challenges to jury instructions for abuse of
discretion. Jd. at 1264 (citations omitted). In so doing, we
consider “whether, viewed in light of the evidence, the
charge as a whole fairly and adequately submits the issues
in the case to the jury.” Id. (quoting Bennis v. Gable, 823
F.2d 723, 727 (3d Cir. 1987)). Refusal to give a proposed
instruction is reversible error “only if the omitted instruc-
tion is correct, is not substantially covered by other in-
structions, and is so ‘mportant that its omission
prejudiced the defendant.” United States v. Davis, 183 F.3d
231, 250 (3d Cir. 1999) (citing United States v. Smith, 789
F.2d 196 (3d Cir. 1986)).
Appellants Jackson, O’Malley, Rachuba and Tursi
argue that the District Court erred in refusing to give
sixteen instructions which Appellants proposed. We
address each of these proposed instructions in turn.
Appellants requested that the following be charged with
respect to the RICO charge:
App. «7
In order to find a defendant guilty, your focus is
on the agreement to participate in the enterprise
through a pattern of racketeering activity, not on
the agreement to conduct individual predicate
acts.
Appellants also requested a charge that they must have
“knowingly agree[d] to participate in the enterprise.” None
of this language was appropriate because it speaks to
RICO conspiracy, but the government had not charged
Appellants with RICO conspiracy under 18 U.S.C.
§ 1962(d); as discussed above, it charged Appellants with
substantive RICO violations under 18 U.S.C. § 1962(c),
and the government need not prove any agreement in
order to prove a § 1962(c) violation. See Irizarry, 341 F.3d
at 285 (listing four elements of § 1962(c) violation). The
language used to express the § 1962(c) charge was fully
accurate.
Next, Appellants contend that the District Court
should have issued the following charge:
The Hobbs Act requires that the defendant in-
duce victims to part with their property; that
they do so through the use of fear, and that they
adversely affect interstate commerce.
This language is taken almost verbatim from our decision
in Addonizio, 451 F.2d 49, 59 (3d Cir. 1972). But as the
government points out, the theory of Hobbs Act extortion
in Addonizio was extortion based on fear of economic
injury. See United States v. Kenny, 462 F.2d 1205, 1229 (3d
Cir. 1972) (noting that in Addonizio, “the case was submit-
ted to the jury only on a use of fear theory.”). As we ex-
plained above, the Hobbs Act criminalizes two separate
classes of extortionate conduct: “extortion induced by
‘wrongful use of force’ and extortion ‘under color of official
App. 48
right.’” Antico, 275 F.3d at 255. Here, the government
advanced a theory of Hobbs Act extortion under the latter
class, i.e., extortion “under color of official right.” We have
made clear that the “under color of official right” class of
Hobbs Act extortion does not “require proof of threat, fear,
or duress.” Kenny, 462 F.2d at 1229 (citations omitted); see
also Mazzei, 521 F.2d at 645 (“A violation of the [Hobbs
Act] may be made out by showing that a public official
through the wrongful use of office obtains property not due
him or his office, even though his acts are not accompanied
by the use of ‘force, violence or fear.’”) (citation omitted).
Thus, the District Court’s refusal to accept Appellants’
“fear” instruction was entirely appropriate.
Appellants requested a number of instructions per-
taining to the effect on commerce element under the
Hobbs Act. They first requested a charge that there must
be a “substantial” connection to interstate commerce. But
we expressly rejected this language in Clausen, where we
held that “proof of a de minimis effect on interstate com-
merce is all that is required” to establish the Hobbs Act’s
effect on commerce requirement. See Clausen, 328 F.3d at
711 (citation omitted). Appellants also requested several
instructions purporting to describe the depletion of assets
theory of proving the effect on commerce element. While
much of the suggested language in these requested in-
structions was accurate, the charge actually given by the
District Court” accurately expressed the depletion of
* Specifically, the District Court charged:
Payment from a business engaged in interstate commerce
satisfies the requirement of an effect on interstate com-
merce. If the resources of a business are expended or dimin-
ished as a result of the payment of money, then interstate
commerce is affected by such payment and may reduce the
(Continued on following page)
App. 49
assets theory, thus precluding any finding of reversible
error in the failure to give Appellants’ alternative formula-
tions.
Appellants requested two instructions purporting to
define “extortion” under the Hobbs Act. The first stated
that “[w]hen contributions are made to public officials, the
government must prove that the payments are made only
in return for an explicit promise or undertaking by the
official to perform or not perform an official act.” The
second stated that in order to prove Hobbs Act extortion,
the government had to “prove that the public official knew
that he was being offered payment in exchange for a
specific requested exercise of his official power.” The
District Court correctly refused both, as they misstate the
law. See Evans, 504 U.S. at 268 (“the [glovernment need
only show that a public official has obtained a payment to
which he was not entitled, knowing that the payment was
made in return for official acts”); United States v. Bradley,
173 F.3d 225, 231 (3d Cir. 1999) (stating that “a conclusion
that in a Hobbs Act case the government has to demon-
strate that the public official made an express promise to
perform a particular act and that ‘knowing winks and
nods’ are not sufficient would frustrate the [Hobbs Alct’s
effect.”) (quoting Evans, 504 U.S. at 274 (Kennedy, J.,
concurring)). At the same time, the language actually
employed by the District Court was, once again, com-
pletely aligned with the law of this Circuit. The District
Court charged the jury that “an explicit promise to per-
form the official acts in return for payment is not re-
quired,” language virtually identical to the instruction we
assets available for purchase of goods, services, or other
things originating in other states.
App. 50
approved in Bradley. See Bradley, 173 F.3d at 231 (“the
government does not have to prove that there was an
express promise on the part of the public official to per-
form a particular act at the time of the payment”) (quoting
instruction). The District Court further charged that
“(e]xtortion occurs if the official knows that the payment
or benefit is motivated by a hope that it will influence him
in the exercise of his office, or influence any action that he
takes because of his official position, and if, knowing this,
he accepts or agrees to accept the payment or benefit.”
This, also, comports with our jurisprudence. See Antico,
275 F.3d at 256-58.
Appellants requested three final instructions relating
to the Hobbs Act charge. First, they asked the District
Court to charge that “mere voluntary payment of money
does not constitute extortion.” It is true that purely volun-
tary payments do not rise to the level of Hobbs Act extor-
tion. But this proposed instruction added nothing to the
fully accurate and complete instruction given by the
District Court defining Hobbs Act extortion, some of which
was discussed in the immediately preceding paragraph.
See also App. 3177a (District Court’s instruction further
charging jury that “the use of one’s office to obtain money
or services not due is extortion.”). The District Court’s
instructions sufficiently described Hobbs Act extortion
under color of official right, and their failure to include the
“voluntary payments” language proposed by Appellants
was therefore not error.
Appellants then asked the District Court to charge
that “[t}he prosecution is required to prove that a defen-
dant who accepts money wrongfully used his office to
induce the payments he received[,)” and prove “that a
public official did something, under color of his public
App. 51
office, to cause the giving of benefits.” However, induce-
ment is not an element of Hobbs Act extortion where the
defendant is a public official. See Antico, 275 F.3d at 256
(“the word ‘induced’ is a part of the definition of the offense
by the private individual, but not the offense by the public
official.... The statute merely requires of the public
official that he obtain ‘property from another, with his
consent, ... under color of official right.’”) (quoting Evans,
504 U.S. at 265) (some internal quotation marks omitted)
(emphasis added). Nor is the government required to prove
that the public official defendant actually “did something”
to cause the payment, not only because, as just explained,
proof of inducement by the public is not required, but also
because proof of an explicit quid pro quo is not required.
Id. at 259 (so long as public official knows “that payments ©
or other consideration were extended to him to secure
unwarranted favorable treatment in his official capacity,
he is guilty of Hobbs Act extortion under color of official
right without the need to prove that the official action (or
inaction) occurred.”).
The final Hobbs Act instruction proposed by Appel-
lants was that “in order to find the defendants guilty of
extortion, you must find that gifts given and received were
of significant value.” There is no support in our precedent
for the requirement that payments made be “significant”
in value. In fact, under Clausen, the government need only
prove a de minimis effect on commerce; by necessary
implication, insignificant payments having only a de
minimis effect on commerce are therefore sufficient.
Appellants contend that the District Court erred in
refusing to give two proposed instructions pertaining to
the RICO charge. The first charged the jury that the
prosecution must prove “[s]ome type of organizational
App. 52
structure” in order to establish the existence of a RICO
“enterprise.” RICO and our precedent merely require proof
of an “enterprise,” and the District Court set forth how
RICO and our precedent defines such an “enterprise.”
There is no independent requirement that the government
prove any particular type of “organizational structure”
within the “enterprise.” The second proposed instruction
charged that “[aJn enterprise must be comprised of defen-
dants only[],” citing as support United States v. Nabors, 45
F.3d 238 (8th Cir. 1995). But Nabors does not support the
proposed charge. Nabors held that a RICO “enterprise”
may be comprised only of defendants, not th..t it must be
comprised of defendants only. See Nabors, 45 F.3d at 240-
41 (citation omitted). The operative inquiry is whether the
alleged “enterprise” is distinct from the alleged “pattern of
activity in which it engages” — so long as it is distinct, and
otherwise meets the broad statutory definition of “enter-
prise,” it may be comprised only of defendants, or of
defendants and non-defendants.
Appellants O’Malley and Leone make two final argu-
ments with respect to jury instructions. Following Appel-
lant O’Malley’s testimony at trial, his counsel asked that
the District Court charge the jury that “[a]s a jury, you
may not infer defendant’s [i.c., O’Malley’s) guilt from any
disbelief of his testimony.” The government contends that
this requested charge misstates the law. Indeed, there is
no question “that the factfinder is entitled to consider a
party's dishonesty about a material fact as ‘affirmative
evidence of guilt.’” Reeves v. Sanderson Plumbing Prod-
ucts, Inc., 530 U.S. 138, 147 (2000) (quoting Wright v. West,
505 U.S. 277, 296 (1992)) (other citations omitted); see also
Wilson v. United States, 162 U.S. 613, 620-21 (1896)
(stating that there could be no “question that, if the jury
App. 53
were satisfied, from the evidence, that false statements in
the case were made by defendant, or on his behalf, at his
instigation, they had the right, not only to take such
statements into consideration, in connection with all the
other circumstances of the case, in determining whether or
not defendant’s conduct had been satisfactorily explained
by him upon the theory of his innocence, but also to regard
false statements in explanation or defense, made or
procured to be made, as in themselves tending to show
guilt.”); United States v. Jocic, 207 F.3d 889, 893 (7th Cir.
2000) (“When a defendant decides to testify and deny the
charges ageinst him and the finder of fact thinks he is
lying, his untruthful testimony becomes evidence of guilt
to add to the other evidence.”) (citing United States uv.
Zafiro, 945 F.2d 881, 888 (7th Cir. 1991)). If the suggested
charge had said that the jury “may not infer defendant’s
guilt solely from any disbelief of his testimonyl|,]” this
would at least have been a correct statement of the law, for
“discredited testimony is not considered a sufficient basis
for drawing a contrary conclusion.” Bose Corp. v. Consum-
ers Union of United States, Inc., 466 U.S. 485, 512 (1984)
(citing Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573,
575 (1951)) (emphasis added); see also United States v.
Reed, 297 F.3d 787, 789 (8th Cir. 2002) (“the government
may not rely solely on the jury's disbelief of a defendant’s
denials to met its burden of proof.”) (citations omitted);
United States v. Aulicino, 44 F.3d 1102, 1114-15 (2d Cir.
1995) (“a verdict of guilt cannot properly be based solely on
the defendant’s denial of the charges and the jury’s disbe-
lief of his testimony.”). But this was not the language
employed in the proposed charge. The proposed charge
was incorrect as a matter of law, and the District Court
was right not to include it.
App. 54
Appellant Leone contends that the Hobbs Act charge,
by stating that “[p]assive acceptance of a benefit by a
public official is sufficient basis for this type of extor-
- tion[,]” had the effect of “improperly eliminat{ing] the
possibility that a public official may receive an unsolicited
gratuity that does not constitute a Hobbs Act violation.”
Read in isolation, the “passive acceptance” language does
give us some pause. In reviewing the legal accuracy of jury
instructions, however, we read the instructions as a whole
and in context. See United States v. Coyle, 63 F.3d 1239,
1245 (3d Cir. 1995). Doing so here reveals that the Hobbs
Act instructions as a whole did not allow for the possibility
that Appellant Leone was convicted on proof that he
accepted an unsolicited, voluntary payment. The Hobbs
Act charge required the government to prove that Appel-
lants accepted payment “knowing that the payment was
made in return for taking, withholding, or influencing
official acts.” The Hobbs Act charge also provided that —
“[e]xtortion occurs if the official knows that the payment
or benefit is motivated by a hope that it will influence him
in the exercise of his office, or influence any action that he
takes because of his official position, and if knowing this,
he accepts or agrees to accept the payment or benefit.”
These aspects of the Hobbs Act charge accurately describe
Hobbs Act extortion, and adequately informed the jury
notwithstanding Leone’s contention.
I. United States v. Booker, 125 S. Ct. 738 (2005).
Most of the Appellants have challenged their sen-
tences under United States v. Booker, 125 S.Ct. 738
App. 55
(2005)." Having determined that these sentencing chal-
lenges are best addressed by the District Court in the first
instance, we vacate Appellants’ sentences and remand for
resentencing in accordance with Booker.
Il.
For the foregoing reasons, we will affirm the judg-
ments of conviction as to each of the Appellants, but vacate
the judgments of sentence of each of the Appellants” and
remand to the District Court for resentencing.
" Appellants O'Malley and Tursi also argue that the District Court
committed a sentencing error in fixing their base offense level under
the sentencing guidelines for the RICO convictions. Because we are
vacating O’Malley’s and Tursi’s sentences and remanding to the District
Court for resentencing under Booker, we will not address this particular
challenge to their sentences here.
™ We will vacate the sentences of Appellants Jackson, Rachuba and
Tursi even though they have not expressly indicated that they wish to
challenge their sentences under Booker.
App. 56
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-1325/1326/1356/1370/137 1/2315/2737/2751
UNITED STATES OF AMERICA
v.
THOMAS URBAN,
Appellant No. 03-1325
UNITED STATES OF AMERICA
v.
JOSEPH J. O’MALLEY,
Appellant No. 03-1326
UNITED STATES OF AMERICA
v.
JOSEPH R. LEONE,
Appellant No. 03-1356
UNITED STATES OF AMERICA
v.
GERALD S. MULDERIG,
Appellant No. 03-1370
App. 57
UNITED STATES OF AMERICA
v.
FRED TURSI,
Appellant No. 03-1371
UNITED STATES OF AMERICA
v.
JAMES F. SMITH,
Appellant No. 03-2315
UNITED STATES OF AMERICA
v.
WILLIAM C. JACKSON,
Appellant No. 03-2737
UNITED STATES OF AMERICA
v.
STEPHEN M. RACHUBA,
Appellant No. 03-2751
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 02-cr-00165-13, 02-cr-00165-08, 02-cr-00165-05,
02-cr-00165-06,02-cr-00165-12,02-cr-00165-11,
02-cr-00165-03,and 02-cr-00165-09)
District Judge: Honorable Petrese B. Tucker
App. 58
Argued October 28, 2004
Before: SCIRICA, Chief Judge, FISHER,
and GREENBERG, Circuit Judges.
JUDGMENT
This cause came on to be considered on the record
from the United States District Court for the Eastern
District of Pennsylvania and was argued on October 28,
2004.
On consideration whereof, it is now hereby AD-
JUDGED and ORDERED that the judgments of the
District Court entered February 5, 2003, for Appellants
Gerald S. Mulderig and Fred Tursi; entered February 6,
2003, for Appellants Thomas Urban, Joseph J. O’Malley
and Joseph R. Leone; entered May 1, 2003, for Appellant
James F. Smith; entered June 12, 2003, for Appellant
Stephen M. Rachuba; and entered June 16, 2003, for
Appellant William C. Jackson, be and the same are hereby
VACATED only insofar as they pertain to sentencing. The
judgments are otherwise AFFIRMED. The cases are
REMANDED for further proceedings consistent with the
opinion of this Court.
Attest:
/s/ Marcia M. Waldron
Clerk
DATED: April 20, 2005
»
]
A
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,
Susrem. Sour, 3
rFiLe*
OCT 2 1 2005
t
t
’
Nos. 05-111 and 05-5412 OPER OF THe uni |
eee
In the Supreme Court of the Aunited States
JOSEPH LEONE, PETITIONER
| v.
UNITED STATES OF AMERICA
THOMAS URBAN, ET AL., PETITIONERS
ne
UNITED STATES OF AMERICA
- ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
KATHLEEN A. FELTON
Attorney
Department of Justice
Washington, D.C. 20580-0001
(202) 514-2217
QUESTION PRESENTED
Whether the district court committed reversible
error in instructing the jury on the interstate-commerce
element of the Hobbs Anti-Racketeering Act, 18 U.S.C.
1951(a).
(I)
TABLE OF CONTENTS
Page
Ce ee oe Pree rE mee CU pe Tg ee gee vee e 1
MN otek so 5s eek A 2
EERE IRS NS PERE EES PELE OR Ee 2
FE A DPA RR RRE Span Here A Eee BL ee RSE IN 8
CIO, 6 viv boo vice oe hs hdd Roh bee kaSaeeeewh deen 19
TABLE OF AUTHORITIES
Cases:
Jones v. United States, 529 U.S. 848 (2000) ....... 7,17
Neder v. United States, 527 U.S.1(1999) ......... 17
Scheidler v. National Org. for Women, Inc.,
BE rr aa a wo ee ike 9
Stirone v. United States, 361 U.S. 212
(Se es ee ee 7, 9, 11, 16, 17
United States v. Arena, 180 F.3d 380 (2d Cir.
1999), cert. denied, 531 U.S. 811 (2000) .......... 10
United States v. Atcheson, 94 F.3d 1237 (9th
Cir. 1996), cert. denied, 519 U.S.1156 (1997) ...... 10
United States v. Bailey, 227 F.3d 792 (7th Cir.
DO es wa 8 os Fd es 12
United States v. Booker, 125 S. Ct. 738 (2005) ..... 3, 8
United States v. Buffey, 899 F.2d 1402 (4th
CW SOE aoa was os esi ip 12
United States v. Carcione, 272 F.3d 1297 (11th
Clr BOY) ass a rss ee a i i oi oS 14
United States v. Collins, 40 F.3d 95 (5th Cir.
1994), cert. denied, 514 U.S. 1121 (1995) ......... 1]
(IID)
— eee eee a a a eT
Cases—Continued: Page
United Siates v. Curtis, 344 F.3d 1057 (10th Cir.
2003), cert. denied, 540 U.S. 1157 (2004) ........ 10
United States v. DiCarlantonio, 870 F.2d 1058 -
(6th Cir.), cert. denied, 493 U.S. 933 (1989) ....... 13
United States v. Farrish, 122 F.3d 146 (2d Cir.
1997), cert. denied, 522 U.S. 1118 (1998) ......... 10
United States v. Gray, 260 F.3d 1267 (11th Cir.
2001), cert. denied, 586 U.S. 963 (2002) ...... 10, 14
United States v. Harrington, 108 F.3d 1460
CG, Carlee?) eo ae 10
United States v. Hebert, 131 F.3d 514 (5th Cir.
1997), cert. denied, 523 U.S. 1101 (1998) ......... 10
United States v. Kaplan, 171 F.3d 1351 (11th
Cir.), cert. denied, 528 U.S. 928 (1999) ........... 14
United States v. Le, 256 F.3d 1229 (11th Cir.
2001), cert. denied, 534 U.S. 1145 (2002) .......... 14
United States v. Lopez, 514 U.S. 549 (1995) .. 7,8,9,17
United States v. Miles, 122 F.3d 235 (5th Cir.
1997), cert. denied, 523 U.S. 1011 (1998) ......... 18
United States v. Morrison, 529 U.S. 598 (2000) ... 7,17
United States v. O’Malley, 796 F.2d 891 (7th
Ie ce ak cick tylcescbsvageanes 18
United States v. Perrotta, 313 F.3d 33 (2d Cir.
ME eos be ee he ewe ee 11
United States v. Peterson, 236 F.3d 848 (7th Cir.
WR ys sien eee is Cen ea sds weedeav seer ss 11
United States v. Quigley, 53 F.3d 909 (8th Cir.
as aa ae Sek s phe SN OAS eA he hE 11,13
United States v. Rivera Rangel, 396 F.3d 476
AG Ro OO ee sk en bs ba wah bea cae awes 16
V
Cases—Continued: Page
United States v. Rodriguez, 218 F.3d 1243 (11th
Cir. 2000), cert. denied, 531 U.S. 1099 (2001) ..... 14
United States v. Smith, 101 F.3d 202 (1st Cir.
1996), cert. denied, 520 U.S. 1160 (1997) ........ 18
United States v. Smith, 182 F.3d 452 (6th Cir.
1999), cert. denied, 530 U.S. 1206 (2000) .......... 10
United States v. Staszuck, 517 F.2d 53 (7th
Cir.), cert. denied, 423 U.S. 837 (1975) ........... 16
United States v. Turner, 272 F.3d 380 (6th Cir.
ED a 5 Pi athe es KORN CE REa rd KGCADb SSRN CRE wRCE 14
United States v. Vong, 171 F.3d 648 (8th Cir.
BON oo chal xh ee ond icons BEV eUER ER ah is 10
United States v. Wang, 222 F.3d 234 (6th Cir.
UN a kan cena cwk edocs ct Ada een cea ek ahs 11,14
United States v. Williams, 308 F.3d 833 (8th
COU ices a ckvendnccuns Sad caer ata eee 13
Wisniewski v. United States, 353 U.S. 901
CRUE > NebdbicénkeadaWaudidepeieas véater 13, 14
Constitution and statutes:
U.S. Const. Art. I, § 8, Cl. 3 (Commerce Clause) .. 7, 10
Hobbs Anti-Racketeering Act, 18 U.S.C. .
RI: ok ben tw hare de Fone bisdeiccewes 2, 5, 9,10
Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. 1962(c) ............. 2
BR Is beio cn dinn ci cesdicaiabctadkas 17
In the Supreme Court of the Gnited States
No. 05-111
JOSEPH LEONE, PETITIONER
v.
UNITED STATES OF AMERICA
No. 05-5412
THOMAS URBAN, ET AL., PETITIONERS
Vv.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-55)’
is reported at 404 F.3d 754.
' All references to “Pet. App.” are to the appendix to the petition for
a writ of certiorari in No. 05-111.
(1)
—_2-____—_———
JURISDICTION
The judgment of the court of appeals was entered on
April 20, 2005. The petitions for a writ of certiorari in
both Nos. 05-111 and 05-5412 were filed on July 18, 2005.
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
In an indictment filed in the United States District
Court for the Eastern District of Pennsylvania, petition-
ers (along with six other individuals) were charged with
racketeering, in violation of 18 U.S.C. 1962(¢c) (RICO),
and multiple counts of extortion, in violation of the
Hobbs Anti-Racketeering Act, 18 U.S.C. 1951(a) (Hobbs
Act). Following a jury trial, all petitioners except Wil-
liam Jackson were convicted on the RICO count. In ad-
dition, petitioner Joseph Leone was convicted on nine
counts of extortion (Counts 6-11, 13-15); petitioner Ger-
ald Mulderig was convicted on six counts of extortion
(Counts 16, 18-22); petitioner Joseph O’Malley was con-
victed on eight counts of extortion (Counts 23-30); peti-
tioner James Smith was convicted on eight counts
of extortion (Counts 41-48); petitioner Fred Tursi was
convicted on seven counts of extortion (Counts 52-58);
and petitioner Thomas Urban was convicted on eight
counts of extortion (Counts 60-67). Petitioner William
Jackson was acquitted on the RICO count and convicted
on two counts of extortion (Counts 3 and 5).?
2 Petitioner Leone was acquitted on one Hobbs Act count (Count
12); petitioner Mulderig was acquitted on one Hobbs Act count (Count
17); petitioner Tursi was acquitted on two Hobbs Act counts (Counts 50
and 51); and petitioner Urban was acquitted on one Hobbs Act count
(Count 59).
3
Petitioner O’Malley was sentenced to 30 months of
imprisonment, to be followed by two years of supervised -
release, and was fined $7500. Petitioner Leone was sen-
tenced to 30 months of imprisonment, to be followed by
three years of supervised release, and was fined $6000.
Petitioner Mulderig was sentenced to 30 months of im-
prisonment, to be followed by three years of supervised
release, and was fined $6000. Petitioner Tursi was sen-
tenced to 34 months of imprisonment, to be followed by
three years of supervised release, and was fined $6000.
Petitioner Urban was sentenced to 30 months of impris-
onment, to be followed by three years of supervised re-
lease. Petitioner Smith was sentenced to 30 months of
imprisonment, to be followed by three years of super-
vised release, and was fined $6000. Petitioner Jackson
was sentenced to five years of probation and was fined
$10,000. The court of appeals affirmed petitioners’ con-
victions but vacated their sentences and remanded
for resentencing in accordance with United States v.
Booker, 125 S. Ct. 738 (2005). See Pet. App. 1-55.
1. Petitioners were plumbing inspectors employed
by the City of Philadelphia. They worked in the Con-
struction Services Department (CSD), a division of the
Department of Licenses and Inspections (L&I Depart-
ment). Plumbing inspectors were required to be regis-
tered master plumbers and were expected to enforce the
city plumbing code in order to ensure, inter alia, the
safety of the city’s drinking water. The inspectors cited
violations of the plumbing code, issued stop work orders,
and were empowered to revoke the license of any
plumber who failed to comply with the plumbing code.
Pet. App. 5; Gov’t C.A. Br. 11.
- In the late 1990s, several confidential sources re-
vealed to law enforcement authorities that plumbing
4
inspectors were accepting monetary payments from
plumbers whose work they had inspected or claimed to
have inspected. One such source said that he had re-
ceived a cash “tip” of between $5 and $20 from 70%-80%
of the plumbing contractors whose work he had in-
spected from 1992 to 1997, and that acceptance of such
“tips” was commonplace among city plumbing inspec-
tors. Two other sources were olumbing contractors who
said that they or their subcontractors had paid inspec-
tors on a number of occasions, and who identified
“Tvrsi,” “O’Donnell,” and “Smith” as being among the
ins ectors involved. Based on that information, a court
order was obtained authorizing the installation of hidden
video cameras in two city vehicles used by certain in-
spectors. Videotapes showed petitioners Jackson, Le-
one, O’Malley, and Smith taking money from plumbers
while conducting inspections, or sometimes taking
money without performing any inspection at all. Various
plumbers testified at petitioners’ trial that they had
made numerous payments to petitioners in order to en-
sure timely and favorable inspections and to prevent
unfavorable treatment or harassment by inspectors.
Pet. App. 5-7; Gov’t C.A. Br. 12-18, 22-30, 25-26, 29-30.
Each plumbing inspector was required, at the time
he was hired, “to sign an ethics statement acknowledg-
ing that he was not permitted to accept ‘any offer, any
gift, favor or service that might tend to influence’ him in
the discharge of his duties.” Pet. App. 8. Every plumb-
ing inspector hired between 1980 and 2000 was told that
it was against city policy for employees to accept cash in
any amount at any time. /bid. The secretive manner in
which the plumbing inspectors accepted the payments
supported the government’s contention that the inspec-
tors knew the payments to be improper. Plumbers con-
5
cealed the payments in the pages of their work permits
or folded the money and transferred it to inspectors in
handshakes. /d. at 9. _
2. The Hobbs Act provides that any person who “in
any way or degree obstructs, delays, or affects com-
_ merce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or con-
spires so to do,” shall be guilty of a federal crime. 18
U.S.C. 1951(a). In order to establish the interstate-com-
merce element of petitioners’ offenses, the government
introduced evidence that many of the large plumbing
companies that made extortionate payments did busi-
ness in interstate commerce, performing jobs in New
Jersey and Delaware as well as in Pennsylvania. Gov’t
C.A. Br. 96. In addition, plumbers who appeared as wit-
_ nesses testified that they purchased supplies from out-
side Pennsylvania. See Pet. App. 9. Many plumbers
testified that they did not reduce their interstate pur-
chases as a result of the extortion, but some said that
was because they passed the costs of the payoffs on to
their customers. /bid.; Gov’t C.A. Br. 98 & n.16.
With respect to the interstate-commerce element of
the Hobbs Act offense, the district court instructed the
jury as follows:
The third element that the government must
prove beyond a reasonable doubt is that the defen-
dant’s conduct affected or could have affected inter-
state commerce. Affecting interstate commerce
means any action which in any way interferes with,
changes, or alters the movement or transportation or
flow of goods, merchandise, money or other property
in commerce between or among the states.
—_—
6
It is not necessary to prove that the defendants
intended to obstruct, delay or interfere with inter-
.state commerce or that the purpose of the money
payment was to affect interstate commerce. Fur-
ther, you do not have to decide whether the effect on
interstate commerce was harmful or beneficial to a
particular business or to commerce in general. You
do not even have to find that there was an actual ef-
fect on commerce. All that is necessary to prove this
element is that the natural consequence of the ex-
tortion—of the money payment, potentially caused
an effect on interstate commerce to any degree, how-
ever minimal or slight. Payment from a business
engaged in interstate commerce satisfies the re-
quirement of an effect on interstate commerce. If
the resources of a business are expended or dimin-
ished as a result of the payment of money, then inter-
state commerce is affected by such payment and may
reduce the assets available for purchase of goods,
services, or other things originating in other states.
Gov't C.A. Br. 108-109 n.18.
3. The court of appeals affirmed petitioners’ convic-
tions. Pet. App. 1-55. Petitioners contended, inter alia,
that the district court had erroneously instructed the
jury on the interstate-commerce element of the Hobbs
Act by stating that proof of a “potential” effect on com-
merce was sufficient for conviction. They also argued
that the evidence on the interstate-commerce element
was insufficient to support their convictions. /d. at 10.
Petitioners’ challenges to both the jury instructions and
the sufficiency of the evidence were based in part on
their contention “that the-so-called ‘depletion of assets’
theory—whereby proof that a Hobbs Act violation de-
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.