# Petition for Writ of Certiorari — McGovern v. Town of Wilton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1748%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 873 ## Text en A 5 i “# ibtk D | OCT 10 1992 = DEE BHE CLERK In The Supreme Court of the United States a 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? li 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 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. 39 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. 40 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: 41 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 en 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 42 a 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 43 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. i. 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 45 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. 46 ‘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 47 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: 48 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 50 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 51 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. supra at 1813 fn.5.© In discussing the existence of a 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. 52 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. Ea 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 54 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. 55 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, 56 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 57 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: 59 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 60 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.. 63 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 65 la 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 2a 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 3a Appendix A Test: Sally Mvros Clerk, United States Court of : Appeals for the Third Circuit. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1748%3A1. Public record. Not legal advice.