Petition for Writ of Certiorari — McGovern v. Town of Wilton

Supreme Court brief1992

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| OCT 10 1992

= DEE BHE CLERK

In The

Supreme Court of the United States

October Term, 1992

MITCHELL LIPSHUTZ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

RAYMOND A. BROWN

BROWN & BROWN, P.C.

-and-

ALAN DEXTER BOWMAN, P.A.

Gateway One, Suite 900

Newark, New Jersey 07102

(201) 622-1846

Attorneys for Petitioner

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

QUESTIONS PRESENTED

1. Whether in a prosecution every violation of the ‘‘under

color of official right’ Hobbs Act offense which involves a non-

campaign contribution the United States is required to prove quid

pro quo beyond a reasonable doubt? Specifically, this case presents

this Court with the issue left unresolved in McCormick v. United

States, ___ U.S. ___, 111 S.Ct. 1867 (1991), as to whether every

violation of the Hobbs Act by an elected official requires proof

of a quid pro quo?

2. Whether the interstate commerce element of the Hobbs

Act requires that the specific source of the funds be identified

as being within interstate commerce? Specifically, whether in this

case the United States was required to prove beyond a reasonable

doubt that the monies were union funds?

TABLE OF CONTENTS

Page

CQuestiens PUGORIONG. « ..55. SOO. eee ee i

Tees OF COUR... 6 i ha eee eee li

TOU OF CRONOUS oo 66 ccc cea duenaeee eee iv

Opinion Batow.. «0... 6<iesciveskbe eae eee ee l

er re l

PUURCTTRTTETeTer Tree ee 2

statement Of te Case. si. scucawaieeeen eee 2

| | PTET rere ee ee 2

A. The Question Al ROMP 6 isi icaco deen eee 2

B. The Analysis Of The District Court ........ 4

tl. The Uniced States’ PROOG....+05 cxccunbeansauacs 6

A. The Aborted State Court Prosecution....... 6

B. The Alleged Hobbs Act Violation .......... 9

III. The Evidence Adduced In Defense.............. 27

A. The Testimony of Donald Padova.......... 27

Contents

Page

B. The Testimony of Petitioner And His Wife.. 28

i ere 39

OO be cased cn eereveeeces 40

Point I. Certiorari Must Be Granted To Resolve The

Issue Left Unanswered In McCormick As To Whether

The United States Must Prove A Quid Pro Quo As An

Element Of An Under Color Of Official Right Hobbs

Act Prosecution Where The Payment At Issue Is Not

Alleged To Have Been A Campaign Contribution... 40

i. McCormick v. United States............... 44

rr, Cs ie teense eces aces 47

iii. In Omitting The Element Of Quid Pro Quo The

District Court Clearly Misinstructed The Jury

te ieee eas béwes 51

iv. The Hobbs Act Was Intended To Proscribe

Extortion As Opposed To Bribery.......... 57

Point II. Certiorari Should Be Granted To Clarify The

Interstate Commence Element Of The Hobbs Act As

It Relates To The Source Of Funds Used In An

Ea. acs 68 welds ans 63

ee hkib ewe ce ecceevé 65

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Commonwealth v. Eric Burns, Philadelphia Municipal Court

Pe: ED occ kk uceae ase kaw waa ane 20, 21, 35, 38

Evans v. United States, _.__- ~U.S. ___, 119 L.Ed.2d 57

(9992) ..... 3, 4, 47, 48, 49, 50, 51, 53, 54, 55, 56, 62, 63

Lewis v. Benedict Coal Co., 361 U.S. 459 (1960) ....... 64

State v. Dozier, 672 F.2d 531 (Sth Cir. 1982)........... 47

Turner v. Local Union No. 302, 604 F.2d 1219 (9th Cir.

SOTO ci ndekaneeechnneen cel ae ae i ee 64

cob eile éb5 0'gele SNe hae ede DA ene sate Same 54, 55

United States v. Braesch, S05 F.2d 139 (1974) .......... 59

United States v. Hall, 536 F.2d 313 (10th Cir. 1976) .... 59

United States v. Hathaway, 534 F.2d 386 (Ist Cir. 1976)

Contents

Page

United States v. Jannotti, 742 F.2d 578 (3rd Cir. 1982)

United States v. Nelson, 672 F. Supp. 812 (D.N.J. 1987), aff’d

in part and rev’d in part, 852 F.2d 706 (3rd Cir. 1988)

MTEVCCE AEA URC EAUCR Us Cae E ELE PERUECAaR ESA 43, 56, 61

United States v. O’Grady, 747 F.2d 682 (2nd Cir. 1984)

- CANN wen ENDS Mapes ERE RDS Cas MUMR TS Red 52, 53, 54, 61

United States v. Sorondo, 845 F.2d 945 (11th Cir. 1988)

Waggoner v. Dallaire, 649 F.2d 1362 (9th Cir. 1981) .... 63

Statutes Cited:

Sf oe Me rere i, 2, 8, 9, 40, 44, 50, 52, 56

gS at ee eer rr rT Tere rrr Serre ere 57

Contents

ER oe Pee eee ee eee l

APPENDIX

Appendix A — Judgment Order of the United States Court

of Appeals for the Third Circuit Dated July 13, 1992

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

MITCHEL LIPSHUTZ, PETITIONER

- V8.-

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

THIRD CIRCUIT COURT OF APPEALS

Petitioner prays that a writ of certiorari issue to review

the judgments of the Third Circuit entered in this proceeding on

July 13, 1992.

OPINION BELOW

The Judgment Order of the Third Circuit Court of

Appeals is appended to this petition.

JURISDICTION

The jurisdiction of the Supreme Court to review the Final

Judgment of the Third Circuit Court of Appeals is based on 28

U.S.C. §1254(1).

CONSTITUTIONAL, STATUTORY AND RULE

PROVISIONS INVOLVED

Petitioner seeks review of issues of law arising under 18

U.S.C.A. $1951.

Statement Of The Case

Introduction

a. The Question At Issue

The instant matter presents this Court with an appropriate

and compelling “»%portunitv to resolve the issue left unanswered

in United States v. mcCormick, ___—*U.S. __,111

S.Ct 1867 (1991), as to whether every violation of the

Hobbs Act by an elected official requires proof of a quid pro

quo. In McCormick, this Court ruled that acceptance of a

campaign contribution is wholly outside the purview of the

Hobbs Act unless it is proven to entail a quid pro quo. The

McCormick Court specifically declined to decide the question

at issue as to the applicability of the Hobbs Act to non-campaign

contributions. The Court so limited its ruling because the

a |

singular contention of the petitioner before it was that payments

made to him were campaign contributions.

The decision of the McCormick Court not to resolve

the issue as to receipt of non-campaign contributions has

generated much attention and engendered confusion as to the

definition of the “under color of official right” element of the

Hobbs Act. So too, as will be discussed infra, this Court’s

recent decision in Evans v. United States, _§.-: U.S.__

119 L.Ed.2d 57 (1992), has ignited substantial

controversey because a concurring justice and three dissenting

justices therein interpret the majority opinion as extending the

quid pro quo requirement set forth in McCormick to non-

campaign contributions. In this context, it should be

emphasized that the issue in Evans was not whether the statute

requires aquid pro quo. Rather, Evans related to aclaim by

the petitioner therein that inducement by the public official is an

element of the “under color of official right” offense.

Inducement and quid pro quo are distinct concepts. !

I: Inducement relates to an affirmative approach by the public official.

Quid pro quo relates to the necessity that the public official accede to a

receipt of funds which he knows to be offered in return for an official act.

Inducement goes beyond quid pro quo in requiring that the public official

initiate the exchange of a thing of value.

Although the Evans majority expressed a resolve to

decide only the question as to whether inducement is an element

of “under color of official right,” its holding necessarily

impacted upon the quid pro quo issue. Such an analysis was

necessary because the Evans majority was constrained to

describe each of the elements of “under color of offical right” in

order to reach its conclusion that inducement is not included

therein. The holding in Evans in our view clearly set forth

quid pro quo as an element of any Hobbs Act “under color of

official right” violation. We stress that at least four justices of

this Court have expressly interpreted Evans in this fashion.

b. The Analysis Of The District Court

Petitioner herein was an elected municipal court judge in

the city of Philadelphia. He was indicted under the Hobbs Act

for acceptance of money from a representative of Roofer’s

Union Local 30/30B. That union routinely offered Christmas

presents to local judges, court officials and some district

attorneys. Petitioner admitted acceptance of $500.00 from

Stephen Traitz, who was the business manager of the local.

Traitz was also a long-time friend of petitioner, who had

supported him (petitioner) in various political campaigns, both

with physical effort and fund-raising. With regard to the

$500.00 which underpinned the indictment, petitioner testified

that he believed it was offered as a wedding gift. He accepted it

on that basis.

At trial, petitioner argued that the Hobbs Act “under

color of official right” offense required proof of a quid pro

quo. Accordingly, it was urged by petitioner that the legal

instructions to the jury must incorporate the element of quid

pro quo. Petitioner cited McCormick for this proposition.

jurist. The district court also stated that McCormick was

limited to campaign funds and opined that the result would have

been diffeerent if the petitioner therein was an elected judge.

The district court stated:

In that McCormick case, you have other

matters in there. That’s a person who is holding

state office [who] has to respond in some way or

other to constituents’ demands... what is a judge

allowed to do for a constituent? Nothing... I

think if he were a judge they wouldn’t have made

that decision... I am going to instruct the jury in

this case that its enough that Steven Traitz have

transferred something of significant value to the

defendant with the expectation that the defendant,

a public official, will extend to him some benefit

or refrain from some harmful action, and the

public official accepts the thing of significant

value knowing that it is being transferred to him

because of his office. [Transcript of July 17,

1991 at pages 172-176].

It is absolutely clear that this matter squarely raises the

issue left unresolved in McCormick. The district court denied

Court should grant certorari to resolve the issue in question.

Resolution of this issue is not only of great juridical significance

- it may restore the dignity of a presently impeached and

disgraced jurist whose life has been placed in disarray by

acceptance of what he believed to be unencumbered wedding

gift.

II.

The United States’ Proofs

A. The Aborted State Court Prosecution

AUSA Peter F. Schenck prosecuted the entirety of the

instant matter in the Eastern District of Pennsylvania. Schenck

both conducted grand jury proceedings acted as trial prosecutor.

Moreover, Schenck’s association with development of a

prosecution of petitioner commenced prior to his role as federal

prosecutor herein. Prior to his present employment by the

United States Attorney, Schenck was in private practice and

thereafter worked within the Office of the Attorney General of

Pennsylvania. Schenck also worked for the United States

Attorney prior to entering private practice. Schenck departed

from private practice and assumed the state prosecutor position

specifically “to handle matters involving the Judicial Inquiry

Review Board... and the proceeding with investigations of any

judges for state violations and other matters.” This matter arose

So too, in his state prosecutor capacity, Schenck

supervised an investigation of petitioner for the very matters

which underpinnned this federal prosecution. That investigation

resulted in the filing of a state criminal complaint against

petitioner. Prior to the filing of the complaint, state authorities

communicated with agents of the federal government, including

the United States Attorney’s office with whom Schenck later

became re-employed. The respective law enforcement agencies

agreed “that [the instant matter] would be a state prosecution

rather than a federal prosecution.”

Subsequent to the filing of the state court complaint, a

preliminary hearing was conducted. Thereafter, “the [state] case

was not put forward or pushed forward or moved forward.”

Schenck stated that “it was [his] fault that it didn’t go forward

and it was basically due to negligence on [his] part.” The

Commonwealth’s failure to timely pursue the matter resulted in a

bar to prosecution based upon state laws relating to a speedy

trial. The bar to a state prosecution became applicable in mid-

1988.

In December of 1989, after the state court prosecution

became barred, Schenck accepted employment with the United

States Attorney. In January of 1990, discussions commenced in

that office relative to a federal prosecution of petitioner.

Schenck pressed for transformation of this matter from a state

court bribery charge into a federal Hobbs Act violation as a

means of resuscitating it. Schenck testified:

I told [my supervisor] that the [state prosecution]

had been lost... I told him that it was largely my

fault. And that I believed that there was... a

potential Hobbs Act case there.

Schenck thereafter “sat down with agents [and] reviewed the

files that were [available], to see what, if anything, was there in

addition to what had been furnished to him in the State.” This

federal prosecution arose from his review of those materials and

presentation of this matter to a federal grand jury.2

B. The Alleged Hobbs Act Violation

Electronic Surveillance Of The Roofer’s Unioa

In September of 1985, federal authorities “made application to

the United States District Court for authority to intercept

communications within the [Roofer’s] union hall.” The

authorities obtained permission “to install listening devices in the

office of Steven Traitz Jr., who was the business manager of the

union, that being the lead official of the union [and] also an

adjoining room that was named the business agent’s meeting

2 The conduct of this matter demonstrates the inherent unfairness in

extension of the Hobbs Act to conduct clearly governed by state bribery

laws. The state bribery prosecution was not pursued diligently. Over-broad

extension of the Hobbs Act permitted the same prosecutor to prosecute

petitioner in both state and federal court for the same conduct.

a. The Pertinent Recordings Played At Trial

Several of the conversations recorded within the union

premises were adduced at trial as evidence over petitioner’s

objections. The recordings were played notwithstanding the fact

that petitioner’s voice was not intercepted during any

conversation.

® October 8, 1985

Steven Traitz Jr. (hereinafter “Traitz”) and Michael

“Nails” Mangini were intercepted on October 8, 1985. The

single reference to petitioner was with reference to the fact that

he was “cross-endorsed” in his campaign for a position as a

Common Pleas Court judge.

ae October 22, 1985

Traitz and Tommy Brown were intercepted on October

22, 1985. Grace identified Brown as “a casual employee of the

union [whose] function was to run errands and he is a retired

employee of the Philadelphia court system.” Traitz and Brown

essentially discussed “who we give [money to at Christmas] and

what we give to them.” Brown’s role was to generate a list.

3. October 29, 1985

Traitz and Tina Collins were intercepted on October 29,

1985 discussing particular matters. Collins was the office

manager of Roofer’s Union Local 30/30B. The United States’

purpose in adducing the conversation was to infer that petitioner

“comes through” for Traitz. The transcript reflects the following

exchange:

Traitz:

Boy the judge gave me all that shit

to do and he’s a funny judge. If

you don’t do it, he gets mad.

Collins:

Judge Braig

Traitz:

Yeah. Look at all that shit there he

gave me. Lipschutz gave me this.

But when they come through, they

come through, ya know what I

mean?

Collins:

Yeah, right.

Traitz:

Can’t complain.

4. November 4, 1985

Traitz and Mangini were intercepted on November 4,

1985. Traitz advised Mangini that Common Pleas Court judge

Joseph Brague “wants to talk to us.” Traitz further stated “the

judges that I can’t get to, he can get to. So I gotta go to him and

[petitioner].”

} 2 November 11, 1985

Traitz, Edward Hurst and others were intercepted on

November 11, 1985. Hurst was an official of Local 30 and

administrator of union benefit plans. The conversation relates to

$168,592 which was paid to the law firm of Bloom, Ocks and

Fisher. That firm had a contract to provide legal services to the

union. Traitz instructed Hurst that he expected a 10% kickback

of the funds provided to the firm of Bloom, Ocks and Fisher. 3

3 On November 21, 1985 Traitz was intercepted discussing the 10%

kickback with Herman Bloom and Herbert Fisher. Traitz informed Bloom

and Fisher that he “gotta have it before Christmas.” Bloom and Fisher are

partners in the firm of Bloom, Ocks and Fisher.

In a taped conversation with Herbert Fisher on December 17, 1985,

which was played at Fisher’s trial and made part of the appendix on his

appeal to the Third Circuit, see United States v. Fisher, No. 89-1604

(Supplemental Appendix at 459), Traitz conveyed how he had to get the

judges in the right “position” or they would not accept the gifts: “You

gotta set the right spot, you gotta get the right time. You got... You get

6. November 12, 1985

Traitz, Hurst and Brown were intercepted on November

12, 1985. The conversation was basically a session wherein

determinations were made as to what individuals would receive

monetary Christmas gifts and in what amounts. Traitz states

“There’s a couple of judges on here that I’m gonna give a little

extra to. You follow me... Like [petitioner].”

yf November 26, 1985

Traitz was intercepted in a conversation with Mangini

and others on November 26, 1985. Traitz stated that “[his] guy

failed [him] today... That’s where you can appreciate a Braig or

[petitioner]. That’s when you really appreciate them.”

8. November 27, 1985

’ Traitz was intercepted in a conversation with Mangini

and others on November 27, 1985. Mangini informed Traitz

that “Eric... he’s in front of [petitioner]... comin in at eleven

o’clock.” In response, Traitz requested that Collins attempt to

some of them judges that start runnin’. When you start handin’ you gotta

hit ‘em in a good position.”

contact petitioner. Collins thereafter stated to Traitz

“[Petitioner’s] office on 70.” Because the telephones were not

electronically monitored as part of the surveillance, interception

of the conversation was limited to Traitz’ comments. The

transcript of Traitz’ utterances states:

Traitz:

On the Top? Okay. Hello... Hey,

Boss, I missed ya. I put it, I put it

in, my name on your answerin’

thing this morning. I called you at

the house, but you were already

gone... Ah, a little better. I'll tell

you what I did. I was up country

for, for three weeks. I bought a, I

bought a farm up there... yeah.

Well, some weekend with me...

Ah, today? No, Judge, no. One

day next week I want to have lunch

with you. I wanna talk to you.

You got a cold?... (Background

talk). Well, I'd like, I'd like to, I'd

like to know about “em Judge... but

I ain’t seen ya’ in a couple weeks. I

missed ya’.

ca a e

...you got a kid goin’ in front of

you at eleven o’clock. Eric

Burns... He’s one of, one of, one

of my guy’s nephews...

* ® .

It’s an, it’s the kid’s goin’ into the

army, judge, and he just needs a

clean bill to get into the army. He’s

gonna, he’s gonna go into the

army... okay. Eric is his first

name. I don’t know how, it starts

with a B, looks like a B-R...

B-U-R-M-S? Or N-S. Burns. It

might be Burns. Alright. Judge.

How about maybe, maybe Tuesday

we get lunch, huh? Well, is that too

far ahead for you to... all right.

Okay, I'll, I'll, I'll see you

Tuesday... I gotta a couple o’

things I gotta talk to you about any

how. How’s Linda”... Good,

okay. give her my best... Oh,

yeah, well, yo... We.., it should...

Hey, she, she’s a good girl. Okay,

Judge. Ah, check this kid for me.

He, he wants to go into the army

and, and he needs a clean bill... See

ya’ Judge... thank you... That’s a

guy with fuckin’ balls.

Authorities “later identified Eric Burns as a young man

who was employed as a roofer by a company called Town and

Country Roofing.” Burns was not a member of the Roofer’s

union.

9. December 5, 1985

Traitz and others were intercepted on December 5, 1985.

500.” Traitz thereafter announced that he intended to “give...

the guys with balls, I’m gonna [give] five.” Traitz included

petitioner, Braig and “Bernie Maher” in this category.

10. December 9, 1985

Traitz and Mangini were intercepted on December 9,

1985 at 10:25 a.m. In this conversation Traitz advised Mangini

“I’m gonna meet [petitioner] tomorrow.” At 4:1! p.m. on that

same day, Traitz was intercepted in a conversation with Robert

Crosley. Traitz informed Crosley “I gotta meet [petitioner]

tomorrow at 12 o’clock down at the... down at their... the non-

union restaurant.”

11. December 10, 1985

Traitz was intercepted on December 10, 1985 conversing

with several others. Traitz stated:

I was with [petitioner] all day... He’s a beautiful

guy. Yo, and balls that fuckin’ big... You gotta

appreciate them judges with balls because there’s

so many of ‘em that got no balls... I can always

go to Braig or go to [petitioner] and tell ‘em

“Hey, I need help.”

12. December 27, 1985

Traitz was intercepted on December 27, 1985

participating in a telephonic conversation with petitioner. The

————

conversation establishes Traitz’ awareness of petitioner’s

impending marriage. The transcript of Traitz’s utterances to

petitioner states:

Traitz:

| Okay. Hello, hello, hello, hi ya

| Judge. Did you have a good

Christmas? Uh that’s, I ‘Il talk to

| you later about it. Everything else

all right? Sure, Judge, yeah,

okay... okay... okay... okay. I

think Joe’s gonna stay Judge oh I

only heard that the other day. You

were sitting with me when I heard

it. Ah Judge,you’re my friend eh

Joe Smith eh Ozzie Myers is a better

friend you know what I mean.

Okay I'll yo I can guarantee I’ Il give

go to him. I sure will. Okay, we

need Lucien, we need Lucien, Joe

Smith, yeah who else we need

Judge? Oh excuse me... okay...

thank you Judge. All right let me

Eddie All right well I hope to God

nobody’s taken it. Okay. Let me

get rolling, right on it right away.

Why who’s the third, Lucien, Joe

Smith. Ah, and for your thing.

What about the first of January?

Are you doing anything? Are you

and Linda getting married? Well I,

ya know, the moming of the 31st,

that what day? That’s Monday? All

right well if a you let me know, I’d

like to at least just kiss the bride.

Okay, Boss? Good Luck. Good

ne my friend. See ya Judge. Bye

ye.

~ . —

at» oem ~smammeat —

Traitz was intercepted participating in a telephonic

conversation with petitioner on January 2, 1986. The transcript

13. January 2, 1986

of Traitz’ utterances states:

Traitz:

left to. Did they tell you I called

down there? Oh, no. Judge, I

called two hours ago. yeah. Oh,

oh, because I was going if and I

figured, I thought you were busy,

you know and I don’t like to bother

you. Yeah. How, how’s Linda...?

(Pause) (Talking in background).

Yes, he did... Not, not in your life,

Judge. Not in you life. Yeah. Oh,

I know your, you know, my

commitments is big. But yours is

twice as big. Okay. What do you

want me to come down cause I'll

come down? Okay. O, yeah, I’m

coming. Judge, if, if the only thing

that could stop me is if something

important come up... Judge, Judge,

Judge. I, I, I, I°ll talk to you about

that. I’ll talk to you about that. I’ll

you, I'll talk to

you, I'll talk to you. No, sir. I

don’t want to do that. Eh, I spoke

be patient because it, it, it’s pretty

hard to get him what he wants over

there. I’m working in the security

re ttt ha

but I’ll come up with something.

But I didn’t want you to think that I

forgot about this. Okay, Judge.

All right, Judge. Okay... Eh, ah,

what’s the difference pertaining to,

Judge, because I'll run right down

there now. If it’s, is anybody in

any danger? Okay. Okay. Well,

I'll see you tomorrow. What room

is that, Judge? Okay. 333. Okay,

okay, see you tomorrow, Boss.

Congratulations. Bye-bye.

b. Visual Surveillance Of A Meeting Between

Petitioner And Traitz On December 10, 1985

Jerome Peters is employed by the Federal Bureau of

Investigation. Peters is assigned to the Special Operations Unit.

That unit provides surveillance coverage. On December 10,

1985 Peters “and three other special agents from the Special

Operations Unit “were requested to conduct a surveillance on

Traitz.

Traitz was followed to the Riverfront Restaurant, where

he arrived at 12:36 p.m. Petitioner and his then finance, Linda

Dincel Lipschutz, joined Traitz at approximately 1:00 p.m.

Notwithstanding that he was positioned “10 yards away at

another table,” Peters did not overhear any of the conversation

nor did he “observe the passage of anything between Traitz and

[petitioner].”

ii.

Commonwealth v. Eric Burns

a. The Initial Appearance Before Petitioner

On November 27, 1985 the litigants in

Commonwealth v. Eric Burns, Philadelphia Municipal

Court No. 85-080536, appeared before petitioner in his capacity

as a Municipal Court judge. Immediately prior to petitioner's

the roofer’s union. Traitz advised petitioner that Burns was

seeking to enter the Army and “needs a clean bill.” Defendant

Burns was charged with various theft offenses. The

Commonwealth sought a continuance because the victim of the

theft was ill and unable to testify. Petitioner granted the

Commonwealth’s request and continued the matter until

December 30, 1985.

b. The Subsequent Trial

- The Guilty Finding

The litigants in Burns re-appeared before petitioner for

trial on December 30, 1985. Donald Padova represented the

defendant, Eric Burns. Marilyn Davidson represented the

Commonwealth. The Commonwealth’s evidence commenced

with the testimony of Officer Dennis Weiss. While on routine

patrol, Weiss observed Burns “kneeling on the ground.” The

officer decided to investigate because “[he] thought possibly that

[Burns] had been sick.” When Weiss approached Burns he

observed “some articles on the ground.” He questioned Burns

as to his activities in relation to those articles. The response

resulted in a decision to frisk Burns and subsequent discovery of

particular contraband. Weiss testified:

Some things were in a box and some were

scattered on the ground... There was a carton of

cigarettes, I believe some papers... He said he

found these articles on the ground and he was

looking through them to see if he needed

anything. [I searched and] found a screwdriver

in his back pocket and I found two containers of

pills, which were down the front of his pants.

The “name William Daehling” was imprinted onto the containers

of pills found within Burns’ pants.

EN eee Eas see Oe

William Daehling also testified at the hearing. Dachling

testified that the items found on Burns were stolen from within

his (Daehling’s) truck. Daehling testified:

I had it parked right outside my mom’s house... I

noticed my door was opened, my glove

compartment was opened, cigarettes were going

out of it. A knife was taken, which I carry for

work, and I had my pain pills and everything in

there for my back, everything was gone.

Thereafter, the Commonwealth rested.

Burns testified in his own behalf as the only witness

presented by the defense. Burns denied any complicity in

breaking into the truck. He claimed that he found Daehling’s

property discarded between a mailbox and bushes. He stated:

There was like a group of kids down Linden

Avenue and like a party down there, and I was

going up to a freind’s house and there. And I

stopped to go to the bathroom, and there was a

box under there, and I pulled it out and I was

looking through it when the police officers came

up. And that is all that really happened... I found

{the box] under the mailbox, in between the

bushes there... I was loo at the pills and

stuff, and the [police came up] and I was holding

them, so I just shoved them down here like, so

that they wouldn’t see it. I should have just

dropped them.

Petitioner thereafter found Burns guilty. Petitioner

The defendant took items which he knew or

should have known, or could have known, were

not his and took possession of them... He is

either guilty of receiving or guilty [of] having

taken articles that were lost, misplaced or

mislaid... He did not testify he thought they were

abandoned, he thought they were just there,

whatever that means... I find the defendant guilty

of receiving stolen property.

Subsequent thereto, petitioner’s consideration turned to

sentencing issues. Petitioner sua sponte noted “the defendant

would have been wiser to go into ARD... but each person is

entitled to make up his own mind as to what he wants to do.”

Burns’ attorney thereafter requested that petitioner allow Burns’

uncle to allocute “if this Court is thinking about sentencing at

this time.” Petitioner agreed with the proviso that Padova “make

it clear to him it’s on the question of sentencing. The case has

already been disposed of as far as the verdict is concerned.”

Robert Edward Nagle was thereafter introduced to petitioner.

He allocuted as to his relationship with and knowledge of

Burns. Nagle stated:

The reason why we didn’t take the ARD program

is, number one, I know the boy real well, I don’t

believe that he did what he did... Number Two,

: we are going to enlist him, he is going to enlist in

the Armed Forces... the Air Force would not take

| an ARD... He works for the roofer’s union and

he works me, I am in the roofer’s union.

eRe AE Id ater an

Petitioner stated “it just seems a shame if he wants to go into the

Air Force... let me see counsel in the back.” Pursuant to

petitioner’s direction, an off-the-record conference was

conducted.

2. The Setting Aside Of The Verdict

The proceedings reconvened subsequent to the

conference. Counsel for defendant Burns made “a motion on

the nature of arrested judgment.” Counsel averred that the

purpose of the motion was to facilitate character testimony.

Petitioner responded “I won’t grant a motion for arrested

judgment, I will grant [however] a motion for a new trial. The

new trial will take place now.” In an obviously agreed upon

sequence of events, the prosecutor “moved to incorporate all

testimony from the former trial “and rested on that record. The

testimony of defendant Burs was also admitted by reference.

Defense counsel at this juncture recited a stipulation between the

prosecutor and himself as to character testimony which would be

provided by Nagle. Defense counsel thereafter rested.

Petitioner reversed the prior finding of guilt. He stated:

Based upon the character testimony as the

deciding factor in a case of this kind, and under

Neen

these circumstances, the Court finds the

defendant not guilty.

Cc. The Prosecutor’s Account Of The Post-Verdict

Conference

As was noted above, Marilyn Davidson represented the

Commonwealth in the Burns matter. Davidson testified at trial

as to the nature of the off the record conference which occurred

after the guilty verdict. Davidson described her recollection of

the conference. She stated:

The judge lit into [defense counsel], by the judge

I’m referring to the defendant in this case. He

yelled at him, claimed that he was an ineffective

defense attorney, that he had erred in his

preparation of the case -- or in his presentation of

the case, that he had character testimony, which

he did not use at trial, and that his client had a

very good case against him for ineffective

assistance of counsel. He went on to say that, as

we all know, character testimony is sufficient to

raise a reasonable doubt and in this case it would

have done so, and the defendant has a very good

‘case against you, meaning Mr. Padova, Donald

Padova, who was the defense attorney. And he

then went on to say that in the interest of justice

he was going to allow the defense to reopen this

case and introduce the character testimony as part

of its case in chief.

At that point it was -- I made a protest in that I

felt that if the -- first of all, the Court had already

come up with a verdict, and the verdict was a

very sound verdict in that the defendant had

basically given his own guilty verdict by his own

testimony, he had admitted that he was in

possession of the stolen property and he had

admitted basically that he was certainly

considering taking it, he was looking through it

to see what was there. It was a strong case, the

officer’s testimony had not been impeached in

any way. And I felt that there was no reason to

change the verdict on the basis of some erstwhile

character testimony that wasn’t even character

testimony. He said, I’m sure the Commonwealth

will not object, because otherwise it will be in the

court system for years and years and years, we'll

go up to -- the defendant will bring another

action, ineffective assistance of counsel, and it

will go on up to the motions court, and there’s no

reason to clog up the system with something so

little. And basically he -- that ended the

iii.

The February 12, 1986 Interview

Of Petitioner By Federal Agents

On February 12, 1986 Agent Grace interviewed

petitioner at his (petitioner’s) residence. Grace testified:

I had asked Mr. Lipschutz if he had known Steve

Traitz, and he indicated that he has known him --

he had known him for some time. I asked him if

he knew an individual named Tom Brown --

Thomas Brown, he wasn’t quite sure. We had a

photograph of Mr. Brown, and once Mr.

Lipschutz saw the photograph, he recognized

Mr. Brown and said that he was an employee of

the Philadelphia Court system, or had been an

employee of the Philadelphia Court system. I

4 Davidson did not make any notation on the file or elsewhere as to

her alleged objection.

had asked Mr. Lipschutz if he recalled meeting

with Mr. Traitz at the Riverfront Restaurant on

December 10th of 1985, and if he had in fact

received an envelope containing $500 cash at that

time. Mr. Lipschutz told me that he would have

to cudgel his memory as to whether he met with

and received an envelope from Mr. Traitz on that

date. I asked Mr. Lipschutz if Mr. Traitz had

ever requested him to intercede in a case or

perform -- or asked for a favor in at that time

Judge Lipschutz’ official capacity as a judge, and

he said that he could not recall if Mr. Traitz had

ever asked him to intercede on his behalf. I told

Mr. Lipschutz that evidence had been obtained

that the meeting occurred on December 10th,

1985, that an envelope had been exchanged.

And I had asked him to give some additional

thought as to whether he received a cash

payment. And at that point the interview

terminated and we left.

III.

The Evidence Adduced In Defense

A. The Testimony Of Donald Padova

Padova represented Eric Burns in the proceeding heard

by petitioner. Padova testified that Burns was offered placement

into the Accelerative Rehabilitative Disposition Program

(hereinafter “ARD”) but refused. Padova described the

| program. He stated:

ARD is a pretrial intervention.... charges are held

in abeyance while you are in this program. If

you live up to the terms of the program, be it for

a period of six months, or a year, whatever the

terms may be, at the end of that time the

Commonwealth will dismiss the charges... You

may [also] be eligible to go ask that [the] record

be expunged.

Padova also testified as to his recollection of the

conference which resulted in a setting aside of the guilty verdict

initially pronounced by petitioner. He stated that Davidson in all

respects agreed with the disposition proposed by petitioner.

Padova stressed that Davidson did not express any reluctance “to

enter into the stipulation concerning Mr. Nagle’s testimony

about Eric Burns’ good character.” In this context, it is

noteworthy that Padova encountered Davidson subsequent to the

indictment herein and she commented about the stipulation.

Padova testified:

I passed [Davidson] in the hallway at City

Hall.... it was sometime after there was some

publicity about this case, [she] said to me and I

took it in a joking fashion, she said ‘That’s the

last time I’ will do a favor for or give, a break to

a defense attorney, that she had gotten called in to

explain what had happened in the back.

B. The Testimony Of Petitioner And His Wife

Linda Lipschutz

Linda Dincel Lipschutz married petitioner on February

22, 1986. The marriage ceremony was originally scheduled for

December 31, 1985. The December 31 date was selected

because it would facilitate joint filing of an income tax retum and

a comcomitant monetary saving. The date of the wedding was

postponed because the physician who performed the necessary

blood tests lost the samples.

Linda Lipschutz met petitioner in 1976. During the

period prior to their marriage, petitioner introduced her to Traitz.

Both Traitz and petitioner advised her that “they were buddies

from way back when and for a long time.” Lipschutz met Traitz

prior to petitioner’s first election to a Municipal Court judgeship.

She began to encounter Traitz on a regular basis during

petitioner’s 1985 campaign for election to the Common Pleas

Court. Lipschutz stated that “almost at every affair or every

meeting that [she and petitioner] went to, like in different wards,

he was there.”

Lipschutz described the December 10, 1985 luncheon

date with Traitz which she attended with petitioner. She stated

that Traitz placed two envelopes on the table which he

categorized as wedding gifts. Each envelope contained

$250.00. Lipschutz testified:

Well, we went inside and Mr.Traitz was already

there, Steve, as I called him, and he was

speaking to someone, so Mitchell and I had

stepped aside for a few moments. And when

Steve had finished his telephone conversation, he

then came to like, there’s like an inner door that

takes you into the restaurant area. And we went

through the door and the maitre d’ proceeded to

seat us and we were seated -- it was pretty

crowded that day and we were seated like at an

aisle table and everything by like one of the

waiter stands where they get the water and things

like that. And we sat down, we talked about just

generalities.

We were talking about the boxing program, the

amateur boxing program, and we went from that

conversation to my hounding him again because I

had asked him to help my father get a job as a

security person and everything, my dad was

retired and going crazy at home, he didn’t have

anything to do, and bugging everybody in

general, and I thought that perhaps Steve would

be able to find something for him. And Steve

made the comment that he would do his level

best.

From that, we then started talking about our

wedding that was going to take place on New

Year’s Eve and we wanted to be sure, because I

had had previous telephone conversations with

Steve, and it was like you had to beat him and

like tie him down to say now, look, you’re

gonna be there, right? And we want you to be

there. And he made a comment about well, yeah,

he was going to be the best man. And I said

“well, if you showed up, you would be, but you

know you have to get there first” and everything.

And he was like very, “Oh, God, guys, I’m

gonna be there and I’m not gonna let you down,”

and all this kind of stuff.

And like through all these conversations we're

eating and this and that. Then he went into his

jacket pocket that he had and he took out two

envelopes and he gave Mitchell. He put them

down, one in front of Mitchell and one in front of

me, and said “Well, I want you guys to have

your wedding present ahead of time.” He said

“With your going away you'll find yourself

something nice.” And he was also happy I had

just quit my job that I had been at for 14 years

because I just can’t -- couldn’t take it any longer,

and he said “Well, now you can stay home and

be a housewife because that will be a good job

for you.” And it was like, “No, I’m not going to

stay home, I’!l find another job.”

Steve and I had an argument about who was

going to pay for lunch because I wanted to treat

for lunch and God forbid you should treat to

lunch if you’re a woman, so he took out his

credit card and he paid for the lunch. And he got

the receipt back with the credit card and he said

“Linda, I need for you to give me your dad’s

telephone number one more time so I can give

him a call.” So I gave him my dad’s telephone

number and he had written it down on the back

of the receipt and he said “now, you’re sure you

want him to have a security job?” And I said

“Yup.” And he wrote security beneath it. And

we started to get up and I greedily grabbed both

envelopes and put them in my pocketbook and

we got our kisses and holiday wishes and was

told to please be sure to make it to the union

Christmas party when we got back from our

vacation and then we left, we each went our

separate ways.

ii.

Petitioner’s Testimony

a. Petitioner’s Background And Introduction To

Traitz

Petitioner testified in his own behalf at trial. He was 67

years old at the time of trial. Petitioner was born and has

essentially spent his entire lifetime in and around Philadelphia.

He attended Philadelphia public schools and thereafter received

both his undergraduate and law degrees from the University of

Pennsylvania. Petitioner was elected to Phi Beta Kappa in

undergraduate school and to Order of the Coif in law school.

Upon graduation from law school, petitioner “worked initially

for some law firms.” He thereafter accepted employment with

the City Solicitor’s office. Petitioner subsequently became

solicitor to the Board of Magistrates where he structured the

Philadelphia Traffic Court.

After entering private practice, petitioner represented

various union members. In this capacity, he met Traitz.

Petitioner stated:

I represented union members, particularly union

members who were dissidents who at that time

were trying to oust certain union leaders of

certain locals who were -- the best word I can

think of, corrupt. And the union rank and file,

many of them, wanted them ousted and I

represented them for that purpose.

I represented Spephen Traitz and some of his

friends. I also represented them in regard to

activities on the picket line. I would go with

them when there was some difficult picketing, to

try to see to it that they picketed within the limits

of what laws there were or what court orders

there were to make sure they were not violated

and that they would do things lawfully, so they

did not get into trouble.

b. Political Campaigns - The Necessary

Associations And Fundraising

Petitioner was elected to a Municipal Court judgeship in

1979. During the campaign, petitioner received financial

contributions from the Roofer’s Union and various other

unions. Petitioner described the activities associated with an

election campaign for a judgeship. He stated:

Well, I suppose it’s basically the same as is

entailed in an election campaign for anything.

You have to attend functions, dinners,

luncheons, meetings, particularly ward meetings

where you appear in front of the ward leader or

chairman, the members of the ward committee,

those are the committeemen basically, and in

front of women’s groups, men’s clubs, all kinds

of functions. It’s a not only a daily attendance,

it’s usually three, four, five places to be on a

particular -- at a particular time.

Fundraising is also a substantial aspect of campaigning.

In this context, petitioner sought the financial support of the

Roofer’s Union and other unions in his 1985 campaign for a

Common Pleas Court judgeship. Petitioner enlisted the aid of a

labor coordinator, John Morris, to assist in solicitation of

assistance from labor organizations. Morris was associated with

the Teamster’s Union. Subsequent to Morris’ acceptance of the

position, other responsibilities precluded him from effectively

discharging this function. Petitioner thereafter requested that

Traitz assume Morris’ functions in the campaign. Traitz agreed

to this proposal. Because of Traitz’ position as his labor

coordinator, petitioner either spoke to or saw him every day

during the campaign.

e. The December 10, 1985 Meeting

Traitz also became relatively closely acquainted with

Linda Lipschutz prior to her marriage to petitioner. In fact,

Traitz urged petitioner to “marry her before somebody grabs her

away.” The freindship relationship which encompassed all the

parties prompted the December 10, 1985 luncheon with Traitz to

which petitioner brought his then wife-to-be. Traitz at the

luncheon “put down... two envelopes and stated” good luck to

you guys... here’s something to get something.” When they

exited the restaurant, petitioner and Linda Lipschutz visited Dr.

Silk’s office for blood tests. The following day, they departed

on a 10 day cruise.

d. Commonwealth v.Eric Burns

On November 27, 1985 Traitz contacted petitioner

regarding Eric Burns. It was not uncommon for petitioner to

receive telephone calls from concerned individuals which related

to particular cases. Such calls ordinarily emanate from

ministers, priests and rabbis. Petitioner’s practice was to treat

such callers with respect. However, he at no time permitted a

telephonic contact to influence his judicial judgment. Petitioner

explained the disposition in Burns at trial. He stated:

On December the 30th. Well, when the case

started in front of me, I recognized Mr. Padova.

I did not recognize Mr. Burns, but I recognized

Mr. Padova and I realized that this was the case

that Mr. Traitz, concerning which Mr. Traitz had

spoken to me. Of this good kid who had a clean

record. And I heard the case. And I was

convinced... [that] his disposition when he found

the things, was that he was going to keep it even

though it was clear that it belonged to somebody.

And I heard the evidence and I just did not hear

enough evidence to convince me that he was the

one who had broken into, although I think it was

unlocked, so -- but that he had legally,

legalistically broken into the truck and taken. So,

that I never found him guilty, in fact, found him

not guilty of actually taking the evidence from the

truck. That was one thing...

I believed that he did have the intent not to retum

the bags, the items. And therefore, I found him

guilty of receiving stolen property and not guilty

of the actual taking.

Well, the next thing that was done was, would

have been the question of sentencing. And in

preparation for that, the Clerk of Quarter

Sessions, assigned to the room at that point,

hands you up a sheet. Hands you up a sheet that

shows what the defendant’s records was. And I

looked at the sheet and the defendant had no

record. And he in fact, had a clean record. And

I asked why didn’t this go into ARD and I was

told that he had rejected it. Which made it seem

to me even more likely, because most person’s if

they do do something like that, however minor

and they get caught at it, welcome ARD, because

they then just have to be good for a short period

like 6 months and their record is wiped out and

it, for all practical purposes, as good as a not

guilty except for the fact that you cannot again,

get into the ARD program.

Well, frankly, at that point, I was trying to think

of what to do to make things right. Because,

here’s a young man, who if I had heard that he

had no record, that he did, in fact, have a clean

record, I would not have found him guilty

because character testimony, by itself under the

law, can raise a reasonable doubt.

When we went into the chambers conference, I

pointed out to Mr. Padova how his error had

caused me to do something that I felt wasn’t just.

That had caused me to find the young man guilty

and prevent his going into the service, which at

that time, is what had been indicated to me. And

that I was really surprised because I thought that

he knew better than that, not to introduce such an

important piece of testimony. And I said then, to

him and of course, Ms. Davidson was present.

And I said, the only thing that you really can do

now, is to take an appeal. However if this boy

really wants to go into the service, it’s a shame

and if you would agree, both the District

Attorney would agree, because of the nature of

this case, it being a small case, the District

Attorney wanted to put into ARD, not the defense

or anyone else. I said because of the nature of

the case and the circumstances, rather than go

through that appeal process, I would be willing

to allow you to have a new trial or re-open the

case and put in the character testimony. I then

turned to Ms. Davidson, whom I had never seen

in my courtroom before, so that I assumed she

was a new Assistant District Attomey. And I

didn’t want to help one person by hurting another

person. So, I asked her, do you want to contact

you office, your superiors to find out if they

would have any objection, after that she said that

she had no objection. She said it’s perfectly all

right with me, Counsel did make a mistake,

that’s clear and it’s perfectly all right with me.

And I asked her, do you want to call your office

to make sure? Because, as I said, I didn’t want

to see her get into trouble. And she said, no.

And we discussed it further and before we left

the room, I said to her a second time, are you

sure you don’t want to call your superior? and

she said no, I’m in charge of the room here.

This my room, they put me in a charge, I’m in

charge and I make the decision and we can go.

And we went back into the courtroom. I allowed

the case to be re-opened, the character testimony

to go in by stipulation and made the decision of

not guilty, which I would have done in the first

place, [had] there been the character testimony.

Petitioner denied that his disposition of the Burns matter

was to any degree influenced by the wedding gift.

S. The February 13, 1986 FBI Interview

On February 13, 1986 petitioner had been home all day

suffering from a virus. When the FBI agents entered his

residence, he was downstairs drinking tea. The agents made

various inquiries of petitioner. They specifically asked petitioner

whether he received an envelope at the December 10 luncheon

with Traitz. Petitioner responded that [he] wasn’t sure of the

date and [he] really wasn’t feeling well enough to concentrate

but... would try to cudgel [his] mind whether on that date he had

received an envelope.” The agents also asked whether Traitz

requested that petitioner intercede in a court proceeding

involving a roofer. Petitioner responded to the agents that

“nobody had asked [him] to intercede for anybody.”

NAO A NA ili i ind Nat th ea nate

f. The Disclosure Report Concerning The

Wedding Gift

On April 29, 1986 petitioner filed the required disclosure

form relative to receipt of personal gifts by a judicial officer.

The form listed the $500.00 wedding gift received from Traitz.>

C. Character Witnesses

Petitioner presented a plentitude of substantial character

witnesses. These witnesses included, inter alia: Jerome

Shestack Esq., who is in the House of Delegates of the

American Bar Association and was previously First Deputy City

Solicitor Donald Marino Esq., who was previously Chief of the

Major Trial Division in the Philadelphia District Attorney’s

Office and Chancellor of the Philadelphia Bar Association

Richard M. Rosenbleeth Esq., a senior partner in the law firm of

Blank, Rome, Comisky and McCauley Willie D. Harris, Esq.,

who is a member of the Board of Governors of the Philadelphia

Bar Association William Rafsky, who is Deputy Managing

Director of the City of Philadelphia Clem R. Moragne, who is

5 Petitioner also testified as to and identified a watch which he gave

to Traitz “shortly before the election of 1985.” The watch was an

expression of freindship and appreciation for Traitz’ work on petitioner

campaign. Traitz’ wife brought the watch to court and testified at trial.

deputy administrator in the Orphan’s Court of Common Pleas:

Lucien Blackwell, who is presently a United States

Congressman and was formerly a city councilman and president

of a Longshoreman’s local and Jannie L. Blackwell, who was a

candidate for the Philadelphia city council at the time of trial.

On the basis of the jury’s consideration of the foregoing

evidence, petitioner was convicted of the Hobbs Act violation

charged in the indictment. As was noted above, over

petitioner’s objection, the jury was not instructed that the United

States was required to prove a quid pro quo.

Reasons For Granting The Writ

POINT I

Certiorari Must Be Granted To

Resolve The Issue Left Unanswered

In McCormick As To Whether The

United States Must Prove A Quid

Pro Quo As An Element Of An Under

Color Of Official Right Hobbs Act

Prosecution Where The Payment At

Issue Is Not Alleged To Have Been

A Campaign Contribution

Petitioner argued to the district court that an indictment

which charges an alleged “color of official right” violation of the

Hobbs Act requires that the United States prove quid pro quo.

te . Sins

ORR DD OU Aa MON Asal Ne tlaOEAF 0D ah te

Petitioner relied substantially upon McCormick v. United

States v.__-«U.S_, 111 S.Ct 1867 (1991), as support

for his interpretation of the elements of an “under the color of

official right” violation. The United States disagreed with

petitioner’s position as to the law and persuaded the district court

that the statute requires only that “the defendant know that he’s

receiving the money in light of his official position.” The United

States submitted that McCormick and its quid pro quo

requirement is limited to acceptance of campaign contributions.

In adopting the position of the United States, the district court

stated:

I am going to instruct the jury in this case when

the time comes that it’s enough that Steven Traitz

have transferred something of significant value to

the defendant with the expectation that the

defendant, a public official, will extend to him

some benefit or refrain from some harmful

action, and the public official accepts the thing of

signficant value knowing that it is being

transferred to him because of his office. That’s

the law that I will give to the jury, that’s what I

think the law is.

Consistent with its rejection of petitioner’s view as to

quid pro quo, the district court instructed the jury that passive

receipt and retention of property violates the Hobbs Act. The

district court instructed the jury as follows:

Extortion under color of official right is the

wrongful taking or accepting by a public official

of money or other property not due him or his

office. It is enough that the benefactor transfers

something of significant value to the public

official with the expectation that the public

official will extend to him some benefit or refrain

from some harmful action. And the public

official accepts the thing of significant value

knowing that it is being transferred to him

because of his office.

All that is necessary is that the motivation for the

‘payment or giving of property, be the public

official’s office to which the defendant was not

entitled. In short, the benefits must have been

given to the defendant because of his public

office and the defendant must have accepted the

isoneiie nenien tia ieniiae,

There’s no requirement that the public official

induced the payment, or giving of other property

in the sense that he demanded it, initiated it,

suggested it or solicited it. The public office

itself provides the inducement for the giving of

the property.

The Government need not prove as part its case

that the public official misused his office in a

sense that he granted some benefit or advantage

pre or gene to which the benefactor was not

A public official misuses his office when he

passively receives and retains property because

. Inshort, the Government need not

show that the defendant did anything for the

person or entity which gave him property or even

promised to do so. A public official’s retention

of things of value paid to him by private persons

for performance of official duty is a misuse of his

Nt anaes dit see eB Nc chine id “et

office in and of itself. This is true, even if the

public official accepts property for an implicit

promise of fair treatment.

It is not necessary to prove that the defendant

obtained or accepted money or property through

the use of coercion, duress or fear toward the

payor. (emphasis added)

The Third Circuit Court of Appeals, in a judgment order,

affirmed the district court.

We submit that the Third Circuit erred and in so doing

affirmed deprivation of petitioner’s right to a fair trial. The

United States was relieved of its burden to prove beyond a

reasonable doubt a critical element of the offense, viz. quid

pro quo. In the event that this Court agrees with our position

as to the applicability of McCormick to non-campaign

contributions, it must reverse petitioner’s conviction. In this

context, we note as did the McCormick Court that a clear

conflict exists in the various Circuit Courts of Appeals with

respect to the quid pro quo issue as it relates to non-campaign

contributions. The authority which supports quid pro quo as

an element has the most juridical cogency. See, United States

v. Nelson 672 F.Supp. 812, 817-818 (D.N.J. 1987),

aff'd in part and rev’d in part 852 F.2d 706 (3 Cir.

1988) (Under color of right prong of the Hobbs Act the United

States must prove that the public official used the power of his

office to induce payments not due him or his office).

We urge this Court to clarify any confusion and

specifically pronounce quid pro quo as an element of an

“under color of official right” Hobbs Act violation. Once this

Court has so stated, the posture of this matter will be that

petitioner was convicted on a jury finding of less than all of the

required elements of the offense charged in the indictment. Such

an obvious affront to due process will require the setting aside of

the verdicts. Fundamental fairness demands no less.

McCormick v. United States

In McCormick v. United States, supra at 1813,

the United States Supreme Court granted certiorari “because of

disagreement in the Courts of Appeals regarding the meaning of

the phrase under color of official right as it is used in the Hobbs

Act .” The petitioner’s challenge in McCormick to the

judgement below was limited to the rejection of his claim that

payments made to him by or on behalf of doctors were campaign

contributions, the receipt of which did not violate the Hobbs

Act. 111 S.Ct. supra at 1814. The Court in McCormick

commenced its analysis with the finding “(that] it is proper to

inquire whether payments made to an elected official are, in fact,

campaign contributions and we agree that the intention of the

parties is a relevant consideration in pursuing this inquiry.” 111

S.Ct. supra at 1815. The McCormick Court, however,

disputed the “approach [of] distinguishing between legal and

illegal campaign contributions.” Id.

The McCormick Court ruled that mere acceptance of a

campaign contribution in any context is not a Hobbs Acts

violation. The Court in McCormick stated:

Serving constituents and supporting legislation

that will benefit the district and individuals and

groups therein is the everyday business of a

legislator. It is also true that campaigns must be

run and financed. Money is constantly being

solicited on behalf of candidates, who run on

platforms and who claim support on the basis of

their views and what they intend to do or have

done. Whatever ethical considerations and

appearances may indicate, to hold that legislators

commit the federal crime of extortion when they

act for the benefit of constituents or support

legislation furthering the interests of some of

their constituents, shortly before or after

campaign contributions are solicited and received

from those beneficiaries, is an unrealistic

assessment of what Congress could have meant

by making it a crime to obtain property from

another, with his consent, “under color of official

right.” To hold otherwise would open to

prosecution not only conduct that has long been

thought to be well within the law but also

conduct that in a very real sense is unavoidable

so long as election campaigns are financed by

private contributions or expenditures, as they

have been from the beginning of the Nation. It

would require statutory language more explicit

that the Hobbs Act contains to justify a contrary

conclusion. [111 S.Ct. supra at 1816].

Notwithstanding the above-quoted finding, the

McCormick Court stated “it is [not] impossible for an elected

official to commit extortion in the course of financing an election

campaign.” 111 S.Ct. supra at 1817. The Court set forth

the analytic framework for such a violation. The Court ruled

that acceptance of a campaign contribution can constitute a

violation of the Hobbs Act where it entails a quid pro quo.

111 S.Ct. supra at 1817. The McCormick Court stated:

Political contributions are of course vulnerable if

induced dy the use of force, violence, or fear.

The reccipt of such contributions is also

vulnerable under the Act as having been taken

under color of official right, but only if the

payments are made in return for an explicit

promise or undertaking by the official to perform

or not to perform an official act. such

situations the official asserts that his official

conduct wil! be controlled by the terms of the

promise or undertaking. This is the receipt of

money by an elected official under color of

—_— right within the meaning of the Hobbs

ct.

‘ene i hina.

This formulation defines the forbidden zone of

conduct with sufficient clarity. [111 S.Ct.

supra at 1817].

The McCormick Court relied upon language set forth

within State v. Dozier, 672 F.2d 531, 537 (5 Cir.

1982). McCormick v. United States, supra at 1816.

With respect to the issue as to whether every violation of the

Hobbs Act by an elected official requires proof of a quid pro

quo, the McCormick Court declined to rule. The Court stated

that “McCormick’s sole contention in this case is that payments

made to him were campaign contributions.” 111 S.Ct. supra

at 1817 fn.10.

ii.

Evans v. United States

In Evans v. United States v.. _ U.S_, 1 1 9

L.Ed.2d. 57 (1992), this Court granted certiorari to

resolve a conflict in the Circuits over the question whether an

affirmative act of inducement by a public official, such as a

demand, is an element of the offense of extortion “under color of

official right” prohibited by the Hobbs Act. This Court in

Evans ruled that it is not. Because inducement and quid pro

quo are distinct but related concepts, the ruling in Evans has

clear juridical significance in the analytic equation as to whether

the McCormick requirement of quid pro quo applies to non-

campaign contributions. In this context, we observe that Evans

involved an alleged campaign contribution. However, the

majority’s holding in Evans was not limited to campaign

contributions in any phraseology within the opinion. And, as

was noted above, a concurring justice and three dissenting

justices specifically stated that the majority in its holding

extended the McCormick requirement of quid pro quo to

non-campaign contributions.

The district court in Evans instructed the jury that

passive acceptance of a benefit by a public official is sufficient to

form the basis of a Hobbs Act violation if the official knows that

he is being offered the payment in exchange for a specific

requested exercise of his official power. The Eleventh Circuit

Court of Appeals affirmed that instruction as correct. The

majority of this Court in Evans concluded “that the [instruction]

satisfies the quid pro quo requirement of McCormick.”

119 L.Ed.2d supra at 72. The majority of this Court

stated:

The offense is completed at the time when the

public official receives a payment in retum for his

agreement to perform specific official acts;

fulfillment of the quid pro quo is not an

element of the offense. [Id.] (emphasis added)

The Evans Court majority specifically synthesized its

holding. The holding essentially defined “under color of official

right” and did not restrict its application to campaign

contributions. The “in return for” language clearly established

quid pro quo as an element. The Evans Court stated:

We hold today that the Government need only

show that a public official has obtained a

payment to which he was not entitled, knowing

Id.]} (emphasis added).

It cannot be gainsaid that a majority of this Court in

Evans clearly articulated that the payment must be given in

return for official acts. The majority of this Court stated that

such a requirement is derived from the statutory language “under

color of official right”, which has a well-recognized common-

law heritage that distinquished between payment for private

services and payments for public services. 119 L.Ed.2d

supra at 72 fn20. It bears repeating that the majority of the

Evans Court did not state that its holding was limited to

campaign contributions. And, we iterate that at least four

lit 49

justices of this Court specifically interpreted the majority holding

in Evans as extending the McCormick requirement of quid

pro quo to non-campaign contribution contexts.

Justice Kennedy, in a concurring opinion, stated that “in

[his] view the dissent is correct to conclude that the [majority’s

holding] requires a quid pro quo as an element of the

Government's case in a [Hobbs Act] prosecution”. Evans v.

United States, supra at 75. Justice Kennedy further stated:

Although the Court appears to accept the

requirement of a quid pro quo as an alternative

rationale, in my view this element of the offense

is essential to a determination of those acts which

are criminal and those which are not in a case in

which the official does not pretend that he is

entitled by law to the property in question....

Readers of today’s opinion should have little

difficulty in understanding that the rationale

underlying the Court’s holding applies not only

in campaign contribution cases, but all § 1951

prosecutions. That is as it should be, for, given

a corrupt motive, the quid pro quo, as I have

said, is the essence of the offense. [119

L.Ed.2d supra at 75-78].

The Chief Justice and Justices Scalia and Thomas

dissented. Justice Thomas wrote the dissenting opinion. The

dissent completely disagreed with the majority's holding as to

the configuration of the offense. The dissent espoused the view

that the petitioner was not guilty of a § 1951 “by color of his

office” violation because “the money or thing received must have

been claimed, or accepted, in right of office, and the person

paying must have yielded to official authority.” Evans v.

United States, supra at 81. The dissent stated “because the

Court misapprehends the color of office requirement, the crime it

describes today is not the common-law crime that Congress

presumably incorporated into the Hobbs Act.” Id at 82.

The dissent also specifically stated that it interpreted the

majority’s holding as extending the quid pro quo requirement

set forth in McCormick to non-campaign contribution

contexts. Justice Thomas stated:

“[TJhe quid pro quo limitation imposed [in

McCormick] represented a reasonable first step in

the right direction... that limitation was overly

modest... Today’s extension of McCormick’s

reasonable (but textually and historicaily

artificial) quid pro quo limitation to all cases

of official extortion is both unexplained and

inexplicable - except insofar as it may serve to

rescue the Court’s definition of extortion from

substantial overbreadth. [119 L.Ed.2d

supra at 84].

iii.

In Omitting The Element Of Quid

Pro Quo The District Court

Clearly Misinstructed The Jury

The McCormick Court recognized that a conflict exists

in the Circuits respecting the applicability of the quid pro quo

requirement to non-campaign funds. That conflict was

precedentially unaffected by the McCormick decision. The

Court in McCormick stated that “the conflict on this issue is

clear, but this case is not the occasion to resolve it.” 111 S.Ct.

conflict, the McCormick Court made reference to decisions in

the Second, Fourth, Ninth and Eleventh Circuit Courts of

Appeals. An analysis of the law in those circuits is instructive.

The Second Circuit in United States v. O’Grady,

747 F.2d 682 (2 Cir. 1984), stated that mere acceptance of

benefits by a public official is not extortion under color of

official right. The O’Grady Court found that the Hobbs Act

requires that “the public official make wrongful use of his office

to obtain money not due him or his office.” Id. at 687.

Simply stated, the O’Grady Court held that “the conduct

proscribed by the Hobbs Act is the wrongful use of public

office, not merely the acceptance of benefit.” 742 F.2d supra

6 This case is clearly the appropriate occasion to resolve it.

at 687. The O’Grady Court relied upon United States v.

NRE

Dozier, supra. United States v. O’Grady, supra at

689. As was noted above, the Dozier decision was also cited

in McCormick as support for the decision therein. See,

McCormick v. United States, supra 1816.

Another significant aspect of O’Grady is that the Court

therein specifically analyzed Third Circuit precedent and

concluded that the law of that Circuit “does not permit a

r conviction for extortion under color of official right absent

evidence that the public official misused his office to obtain

benefits.” 742 F.2d supra at 689. See, United States v.

Jannotti, 742 F.2d 578, 595 (3 Cir. 1982) (payment

made after assurances that there would be no obstacles to

construction hotel project). Based on the ruling herein, it would

appear that at least one panel of the Third Circuit disagrees with

the O’ Grady Court.’

7 Comments by the judges at oral argument indicated that they may

have been of the mistaken view that Evans affirmed United States v.

Kenny, 462 F.2d 1205, 1229 (3 Cir. 1972), from which the

instruction in the instant case was essentially extracted. Justice Thomas,

dissenting in Evans, criticized Kenny because it “obliterated the

distinction between extortion and bribery essentially creating a new crime

encompassing both.” Evans v. United States, supra at 86-87.

In United States v. Aguon, 851 F.2d 1158,

1166 (9 Cir. 1988), the Ninth Circuit Court of Appeals

stated “we find ourselves in agreement with the Second Circuit's

conclusion that inducement is an element required for conviction

under the Hobbs Act.” The Aguon Court stated:

We note with approval that the Second Circuit

has analyzed the facts of cases in which other

courts of appeals have explicitly rejected the

necessity of proof of inducement and concluded

that “the facts of those cases, and of most

reported decisions construing extortion under

color of official right, establish conduct from

which inducement can readily be inferred.”

O’Grady, 742 F.2d at 689. Writing for the

Seventh Circuit, Judge Posner noted: “There is

an air of the academic about this intercircuit

conflict because, as a matter of fact, in none of

the cases in which the issue has been pressed

was the official passive.” [Id.].

In United States v. Evans, 910 F.2d 790, 796-

797 (11 Cir. 1990), aff'd Evans v. United States,

supra, the Eleventh Circuit deviated from the ruling in

O’Grady. Evans was ultimately presented to this Court for

disposition of the inducement issue. However, the Evans

formulation adopted prior to this Court’s ruling as to the public

official’s Hobbs Act liability extends beyond that utilized by the

district court below. The Eleventh Circuit stated in Evans

RETR

in 1rinsisirisamnieanni

“under the law of this circuit... the official [must] know that he

is being offered the payment in exchange for a specific requested

exercise of discretion.” 910 F.2d supra at 796. Simply

t. the EI th Circuit : c

exchange for a promise. Or, more specificially, that Circuit is

essence utilized a quid pro quo standard.® That standard was

thereafter adopted by a majority of this Court.

The Fourth Circuit in United States v. Spitler, 800

F.2d 1267, 1274-1275 (4 Cir. 1986), ruled consistent

with the conception of the district court herein. The Spitler

Court stated that “the public official [must] accept the thing of

significant value knowing that it is being transferred to him

because of his office.” Id. at 1274-1275. Significantly, the

Spitler Court found that the defendant “not only retained the

benefits that TEI had provided to him, but also coercively

demanded the items.” Id. Thus, the official in Spitler was

not passive. See, United States v. Aguon, supra at

1166.

8 A reading of the circuit court opinion in Evans underscores the

necessity of understanding the distinction between the quid pro quo and

inducement issues.

We are of the view that United States v. Nelson,

supra, sets forth the most cogent position within published

authority in this Circuit. The decision in Nelson rests

somewhere between the majority and dissenting opinions in

Evans. Although it is district court authority, we pressed the

Third Circuit to adopt it. The Nelson Court ruled that a public

official charged with a Hobbs Act violation must be

demonstrated to have used his power to induce payments not

due his office. The Court in Nelson found that an uncertainty

existed in this Circuit post-Janotti because of “ellipses used

[therein] in quoting from “United States v. Kenny, 462

F.2d 1205, 1229 (3 Cir. 1972). United States v.

Nelson 672 F.Supp supra at 815. The Neison Court

stated:

Without pausing to analyze why the language of

the Hobbs Act and the common law dictate that

inducement or demand should be the anchor of

color of official right, it is clear that without the

anchor, official right goes out to sea, bizarre

results obtain, and uncertainty again rears its

head... It would defy logic to penalize the mere

receipt of a gratuity, effectively, a lesser included

offense of bribery, the same as the greater

offense... Certainly, too, more than a gift or a

mere taking is required if state and local officials

are not to face penalties potentially ten times

greater than federal officials, under federal law,

for identical conduct. See, 18 U.S.C.A. §

201(g)... whether it is called inducement,

exploitation, use of office, demand, coercion...

there must be a causation component for there to

be extortion, i.e. something done by an official

which causes one to knowingly part with money

or property. [672 F.Supp supra at 815-

818].

In sum, we respectfully submit that this Court must grant

certiorari to clarify the uncertainty as to application of the

McCormick “color of right/quid pro quo” requirement to

non-campaign contributions. This case squarely raises the issue

and only this Court can resolve it.

iv.

The Hobbs Act Was Intended To

Proscribe Extortion As Opposed To

Bribery

The most cogent analysis of 18 U.S.C.A. § 1951(a)

is set forth in the concurring opinion in McCormick v.

United States, supra at 1818, authored by Justice Scalia.

We so advised the Third Circuit in a reply brief. The analysis

therein leads forcefully to the conclusion that the statute does not

to any degree prescribe bribery but was intended only to

emcompass extortion. Simply stated, the key to understanding

the statute is a comprehension of the distinction between bribery

and extortion. Justice Scalia’s concurring opinion traces the

relevant provisions from the Anti-Racketeering Act of 1934 to

their unchanged inclusion in the Hobbs Act of 1948. A detailed

discussion of Justice Scalia’s concurring opinion is instructive.

At the outset, we further observe that in Evans v. United

States, supra, the Chief Justice and Justices Scalia’s and

Thomas dissented on the ground that § 1951(a) is limited to

extortion.

Federal prosecutors “in the 1960’s” first sought to apply

the Hobbs Act “to reach what was essentially the soliciting of

bribes by state officials.” McCormick supra at 1819.

However, courts generally rebuffed these initial efforts. The

courts ruled “that public officials were not guilty of extortion

when they accepted, or even when they requested, voluntary

payments designed to influence or procure their official action.”

Id. The courts held that the Hobbs Act required fear and a lack

of voluntariness in order to constitute extortion as opposed to

mere bribery. Simply put, courts interpreted the Hobbs Act as

prescribing extortion and excluding bribery from its purview.

See, United States v. Hyde, 448 F.2d 815, 833 (5

Cir. 1971); United v. Addonizio, 451 F.2d 49, 72 (3

pose 58

Cir. 1971); United States v. Kubacki, 237 F.Supp.

638, 641 (E.D.Co. 1965).

Thereafter, in 1972 Third Circuit incited a departure from

the Hobbs Act extortion/duress concept in United States v.

Kenney, supra at 1229. The Kenney Court ruled that

kickbacks to public officials established extortion under color of

official right despite the lack of proof as to threat, fear or duress.

The Seventh Circuit adopted the Kenney Court’s interpretation

of the statute in 1974. See, United States v. Braesch, 505

F.2d 139, 1511 (1974). Several other circuits followed in

later years. See, United States v. Hathaway, 534 F.2d

386, 393 (1 Cir. 1976); United States v. Hall, 536

F.2d 313, 320-321 (10 Cir. 1976).

Justice Scalia succinctly described the issue of statutory

construction which has erroneously resulted in inclusion of

bribery cases within the statute’s reach. We stress that the

distinction between bribery and extortion is that bribery does not

require duress or inducement. The extortion proscribed within

the Hobbs Act was clearly intended to entail inducement and/or

quid pro quo. In McCormick, supra at 1819-1820,

Justice Scalia stated:

one’s office” that brings bribery cases within the

Statute’s reach, and that creates the necessity for

the reasonable but textually inexplicable

distinction the Court makes today. That

. “The obtaining of

property ... under color of official right” more

naturally connotes some false assertion of official

entitlement to the property. This interpretation

might have the effect of making the § 1951

definition of “extortion” comport with the

definition of extortion at common law. One

treatise writer, describing “extortion by a public

office” states: “At common law it was essential

that the money or property be obtained under

color of office, that is, under the pretense that the

officer was entitled thereto by virtue of his office.

The money or thing received must have been

claimed or accepted in right of office, and the

person paying must have yielded to official

authority.” 3 R. Anderson, Wharton’s Criminal

Law and Procedure 790-792 (1957).

It also appears to be the case that under New

York law, which has long contained identical

“under color of official right” language and upon

which the Hobbs Act is said to have been based,

see Ruff, supra at 1183, bribery and

extortion were separate offenses. An official

charged with extortion could defend on the

ground that the payment was voluntary and thus

he was guilty only of bribery. People v.

Feld, 262 A.D. 909, 28 N.Y.S.2d 796,

797 (Supp. Ct. 1941); See, People v.

Dioguardi, 8 N.Y.2d 260, 273-274, 203

N.Y.S.2d 870, 168 N.E.2d 683 (1960).

I am aware of only one pre-Hobbs Act New

York prosecution involving extortion “under

color of official right,” and there the defendant, a

justice of the peace, had extracted payment from

a litigant on the false ground that it was due him

as a court fee. People v. Whaley, 6 Cow.

(N.Y.) 661, 661- 663 (Sup.Ct.1827).

Finally, where the United States Code explicitly —

criminalizes conduct such as that alleged in the

present case, it calls the crime bribery, not

extortion-and like all bribery laws I am aware of

(but unlike § 1951 and all other extortion laws I

am aware of) it punishes not only the person

receiving the payment but the person making it.

See, 18 U.S.C. § 201(b) (criminalizing

bribery of and by federal officials). Compare 18

U.S.C. § 872 (criminalizing extortion by

federal officials, making no provision for

punishment of person extorted). McCormick,

though nota federal official, is subject to federal

prosecution for bribery under the Travel Act, 18

U. S.C. § 1952, which criminalizes the use of

interstate commerce for purposes of bribery-and

reaches, of course, both the person giving and

the person receiving the bribe.

The impressive analysis which underpins Justice Scalia’s

concurring opinion in McCormick was essentially precursed in

United States v. Nelson, supra.The Nelson Court

stressed “the bizarre results which can obtain if inducement is

read to refer to everything in the statute but color of official

right.” 672 F.Supp supra at 816. “Logically and rationally

it cannot be gainsaid that when a public official merely accepts

unsolicited benefits knowing that they were given because of his

public office, it is not extortion.” United States v. Nelson,

supra at 817 citing United States v. O’Grady, 742

F.2d 682 (2 Cir. 1984). In this context, the Nelson Court

observed “it would defy logic to penalize the mere receipt of a

gratuity, effectively a lesser included offense of bribery, the

same as the greater offense. 672 F.Supp supra at 817.

As was noted above, the Chief and Justices Scalia and

Thomas dissented in Evans v. United States, supra, on

the basis of their adoption of Justice Scalia’s reasoning in his

concurring opinion in McCormick. Writing for the dissent,

Justice Thomas stated:

Although the Court purports to define official

extortion under the Hobbs Act by reference to the

common law, its definition bears scant

resemblance to the common-law crime Congress

presumably codified in 1946... the common law

makes plain that the offense was understood to

involve not merely a wrongful taking by a public

official, but a wrongful taking under a false

pretense of official right... bribery and extortion

are different crimes. An official who solicits or

takes a bribe does not do so... under any

pretense of official entitlement... Where extortion

is at issue, the public official is the sole

; because he acts under color of office,

the law regards the payor as an innocent victim

and not an accomplice... [the majority's]

interpretation has no basis in the statute that

Congress passed in 1946. If the Court makes up

this version of the crime today, who is to say

what version it will make up tomorrow when

confronted with the next perceived rascal? [119

L.Ed 2d supra at 79-90]

We submit that no cogent authority contradicts the ratiocination

of Justice Thomas’ dissent. The Evans majority took a step

toward this position when it extended the requirement of quid

pro quo to non-campaign contributions.

POINT II

Certiorari Should Be Granted To

Clarify The Interstate Commence

Element Of The Hobbs Act As It

Relates To The Source Of Funds

Used In An Extortion

The affect on interstate commerce jurisdictional element

of the Hobbs Act violation at issue herein was proved on the

assumption that the Welfare Fund from which the prepaid legal

services plan was paid constituted an asset of the union.?

Employee trust funds which are the product of collective

bargaining agreements are not considered assets of the union.

See, Waggoner v. Dallaire, 649 F.2d 1362, 1368 (9

Cir. 1981) (As a matter of federal law, the union and its

representatives are not agents of a trust fund created by collective

9 The district court instructed the jury as follows:

If you find beyond a reasonable doubt that the roofers union had

jurisdiction over Pennsylvania, New Jersey and Delaware, and its assets were

depleted by a $500 payment to the defendant and then the interstate

commerce element has been satisfied..

bargaining agreement; trust authorities are distinct and

independent entities separate from the union that negotiates the

collective bargaining agreement establishing the trust). Cf.

Turner v. Local Union No. 302, 604 F.2d 1219,

1227 (9 Cir 1979) (The purpose of separation into a trust

fund is to prevent employers from tampering with the loyalty of

union officials and to prevent union officials from extorting

tribute from employers).

In the event that the Welfare Fund is not an asset of the

union, the United States has failed to prove the necessary

jurisdictional element of the offense. An error in recognition of

this factor would constitute plain error which resulted in a

manifest miscarriage of justice. Lewis v. Benedict Coal

Co. 361 U.S. 459 (1960). See, United States v.

Sorondo, 845 F2d 945, 958 (11 Cir 1988). Jurisdiction

is the cornerstone element of any federal offense.

Conclusion

For the foregoing reasons, we respectfully request that

this Court grant certiorari.

Respectfully Submitted

(cv it ™

ALAN DEXTER BOWMAN

Counsel For Petitioner

Alan Dexter Bowman

Raymond A. Brown

Raymond M. Brown

Of Counsel And On The Petition

APPENDIX A — JUDGMENT ORDER OF THE UNITED |

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

DATED JULY 13, 1992

No. 91-1946

UNITED STATES OF AMERICA

MITCHELL S. LIPSCHUTZ,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 90-00482-01)

District Judge: Robert F. Kelly

Argued July 8, 1992

Before: SLOVITER, Chief Judge, STAPLETON, and SEITZ,

Circuit Judges

JUDGMENT ORDER

After consideration of the contentions raised by appellant,

to wit:

1. Whether the district court violated appellant’s rights to

confrontation and a fair trial by admitting audio recordings of

hearsay conversations between Steven Traitz and others which

contained references to alleged past ‘‘other crimes’’ committed

by appellant and detailed a comprehensive and apparently

successful effort by the Roofer’s Union to corrupt a major portion

Appendix A

of the Philadelphia judiciary?;

2. Whether the district court erred in ruling that the Hobbs

Act does not require proof of a quid pro quo in the cortext of

alleged under color of official right offenses?;

3. Whether appellant was denied a fair trial by improper

cross-examination of his character witnesses on the part of the

United States?;

4. Whether this prosecution in federal court is violative of

appellant’s speedy trial and double jeopardy rights?;

5. Whether this matter must be remanded for a hearing as

to whether the money paid to appellant by Traitz was derived

from a fund properly classified as an asset of the Roofer’s Union?;

and

6. Whether the United States adduced sufficient evidence of

appellant’s knowledge that the money was provided to him because

of his office?,

It is ORDERED and ADJUDGED that the judgment of the

district court be and is hereby affirmed.

By the Court,

s/ Dolores K. Sloviter

Chief Judge

Certified as a true copy and issued

in lieu of a formal mandate on

August 4, 1992

Attest:

s/ Sally Mrvos

SALLY MRVOS

Dated: JUL 13 1992

Appendix A

Test: Sally Mvros

Clerk, United States Court of

: Appeals for the Third Circuit.

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.