Opposition Brief — McGovern v. Town of Wilton

wesepee were MI hg We we

2. & D

FEB 5 1993

No. 92-961

a ee

In the Supreme Court of the Cinited States

OcTOBER TERM, 1992

MITCHELL LIPSHUTZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

VICKI S. MARANI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the jury that convicted petitioner, a judge

who accepted a payoff from a union official, was properly

instructed on the elements of 18 U.S.C. 1951 where the

jury was told that it could convict only if it feund that

petitioner accepted the cash knowing it was given with

the expectation that he would extend some benefit or

refrain from taking some harmful action.

2. Whether the government proved the interstate

commerce element of 18 U.S.C. 1951 beyond a reasonable

doubt.

(1)

TABLE OF CONTENTS

Page

I Sadana asdicbed nun cdidepaduncbeninabsdaquneehacebasebeess 1

PIII nscckcsseccncncnssapsescsosnnssnncssncsncsncosnensencesessosesonsosoceses iva

a sadeamnbamsnanncatehesnincovaces 2

Tn airatilleskiuadinnctasaentokanasidasnsttinnesaetevsbnnestnbasnnstense 10

ss een gecmbavnsnsnntinouces 16

TABLE OF AUTHORITIES

Cases: ;

Berkemer v. McCarty, 468 U.S. 420 (1984) ...................0 13

Evans v. United States, 112 S. Ct. 1881 (1992) ................ 10, 12

McCormick v. United States, 111 S. Ct. 1807 (1991) ........ 6, 10, 12

Solorio v. United States, 483 U.S. 485 (1987) .................. 13

Stirone v. United States, 361 U.S. 212 (1960) .................. 15

United States v. Cerilli, 6038 F.2d 1043 (8d Cir.), cert.

I I I sci tacensseneneqnannensnscsansscese 15

United States v. McKenna, 889 F.2d 1168 (1st Cir. 1989). 15

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

cert. denied, 475 U.S. 1012 (1986) ................cceeeeceeeeeeeees 15

Constitution and statutes:

U.S. Const. Amend. V (Double Jeopardy Clause) ............ 9

ccc nccck while dhubeencneubcansspneshsoonscsoonesse 2

Is camsenunnsnabacosonciis 12

oa saichbanbtceannnnescnenesees 12

(III)

'

'

‘

'

i

.

i

’ )

i vel

: -

t

,

’

,

'

‘

‘

F mn

‘

.

f

5

~ —

ad

i Pa)

’ bile stn

a

ie : rae

) phe lata

; Pe ny

~~

Ce eee ee) ae eee ay eee ae oe

$$ LL en

In the Supreme Court of the Ginited States

OCTOBER TERM, 1992

No. 92-961

MITCHELL LIPSHUTZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals, Pet.

App. la-3a, is unpublished, but it is noted at 972 F.2d

1333 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

July 18, 1992. The petition for a writ of certiorari was

filed on October 13, 1992 (a Tuesday following a

Monday holiday). The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania,

petitioner was convicted of extortion under color of

official right, in violation of 18 U.S.C. 1951. He was

sentenced to 18 months’ imprisonment. Pet. C.A. App.

Da3.' The court of appeals affirmed. Pet. App. la-3a.

1. a. In 1985, the Roofers Union in Philadelphia

was the subject of an investigation concerning payoffs

to political officials. Through electronic surveillance

of the union hall, law enforcement authorities

discovered that Steven. Traitz, the union’s business

agent, planned to continue the union’s practice of

giving cash at Christmas to public officials—

including petitioner, then a judge of the Philadelphia

Municipal Court—who could be of help to the union

and its members. Gov’t C.A. Br. 3; see also Pet. 9-13,

15-16.

On December 3, 1985, Traitz told a union member

that he intended to give $300 to some judges and $500

to others. “In other words,” he explained, “the guys

that I use, I[] get ‘em 500.” Pet. C.A. App. Da56-Da57;

see also id. at Dall3 (Traitz remarking to union

1 The record on appeal in this case consisted of a videotape

recording of the trial and tape recordings of conversations.

Transcripts of the latter were reproduced in the appendix that

petitioner filed with the court of appeals. The videotape was

also transcribed, but the court of appeals required the parties

to cite to the videotape, except for the small portion of the

transcript reproduced in the appendix. In discussing the

evidence at trial, we cite principally to petitioner’s appendix

and to the government’s brief in the court of appeals, which in

turn cites to the relevant portions of the videotape.

~~

3

member on December 9, 1985, that “the Judges will

take care of us. I take care of them good.”). On

December 5, 1985, Traitz and several union stewards

stuffed envelopes with the cash intended for public

officials. Gov’t C.A. Br. 4, 38. Traitz mentioned that a

previous business agent for the union “used to give

his top judges 500.” Pet. C.A. App. Da71; Pet. 15

(quoting Traitz). Traitz announced that, to “[t]he

guys with balls, I’m gonna [glive five.” Jbid.; Pet. 15

(quoting Traitz). Identifying petitioner as one such

judge, Traitz stuffed an envelope for him with $500.

Ibid.; see also Pet. C.A. App. Da71, Da78, Da94, Da100;

Gov’t C.A. Br. 4, 38.

On December 6, 1985, during a conversation about

when the money would be distributed, Traitz told a

union member that he would be seeing petitioner.

Pet. C.A. App. Dall0-Dalll. Four days later, peti-

tioner, accompanied by his girlfriend Linda Dincel,

accepted the money from Traitz at the Riverfront

Restaurant in Philadelphia. Gov’t C.A. Br. 5; see also

Pet. 16, 19. Later that day, Traitz told union

members that he was not worried about a particular

judge who “got scared” because “it'll go in front of

one of my other friends and I’ll be alright. * * * I can

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

‘Hey, I need help.” Pet. C.A. App. Da118-Da119.

b. In the fall of 1985, Robert Nagel, an employee of

Town and Country Roofing, approached Traitz about

obtaining legal representation for Nagel’s nephew,

Eric Burns, who had been arrested by Philadelphia

police for theft and receiving stolen property. Those

offenses were misdemeanors triable in Municipal

Court before petitioner. On November 27, 1985,

4

Burns’ trial date, Traitz called petitioner and told him

that Burns would be appearing before him.? Traitz

identified Burns as “one of my guys’ nephews” and

said that Burns needed a “clean bill to get into the

army.” The case was called, but the complaining wit-

ness was unavailable due to illness. Petitioner

continued the case to a special listing before himself

on December 30, 1985. Gov’t C.A. Br. 3, 4, 40; Pet.

C.A. App. Da46-Da50; see also Pet. 13-15, 20.

On December 30, Burns appeared before petitioner

for trial. Gov’t C.A. Br. 5. The case was tried to the

bench. /bid.2 After hearing the evidence, petitioner

(who apparently had forgotten Traitz’s call about the

case) found Burns guilty of receiving stolen property,

noting that he did not “have too much trouble”

arriving at that verdict. Pet. C.A. App. Dal63-Dal64.

Burns’ attorney then asked if Robert Nagel, Burns’

uncle, might speak on Burns’ behalf. /bid. Petitioner

replied that he would hear Nagel only on the question

of sentencing, explaining that “(t]he case has already

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

Id. at Dal64. After Nagel stated that Burns was

planning to enlist in the armed forces, the following

exchange occurred:

BY MR. PADOVA [defense counsel]:

Q. Who does [Burns] work for?

2 Only Traitz’s end of the conversation was recorded,

because the recording device was in the union hall’s ceiling.

Gov’t C.A. Br. 4.

8 The transcript of the Burns trial, Pet. C.A. App. Dal29-

Dal70, was admitted into evidence at petitioner’s trial. Gov’t

C.A. Br. 40.

5

A. He works for the Roofer’s Union, and he

works for me. I am in the Roofer’s Union.

THE COURT [petitioner]:

It just seems a shame if he wants to go into

the Air Force—

MR. NAGEL:

I have heen suggesting the Navy, Your

Honor.

THE COURT:

Let me see counsel in the back.

Id. at Dai65-Dal66.

Petitioner then conducted an off-the-record dis-

cussion in which he berated defense counsel for not

calling Nagel as a character witness and told the

assistant district attorney that the case would be

reversed on appeal. Pet. C.A. App. Dal166; Gov’t C.A.

Br. 8. Petitioner set aside the conviction, granted a

new trial, incorporated the record from the previous

trial, and accepted a stipulation as to what Nagel’s

testimony would be. Petitioner then acquitted Burns.

Pet. C.A. App. Dal66-Dal169; Gov’t C.A. Br. 8.

c. On February 10, 1986, two FBI agents inter-

viewed petitioner at his home. When asked if Traitz

had given him an envelope containing $500 at the

Riverfront Restaurant on December 10, 1985, peti-

tioner replied that he would have to “cudgel” his

memory. When asked if Traitz had ever asked him to

6

intercede in a case, petitioner said that he could not

recall. Gov’t C.A. Br. 8-9, 40; Pet. 26-27.‘

d. On April 29, 1986, one day before the filing

deadline, petitioner filed a financial disclosure form

with the Pennsylvania Supreme Court listing a $500

personal gift from Traitz. Gov’t C.A. Br. 9; Pet. 39.

2. Petitioner testified in his own defense. He

admitted that Traitz gave him $500 in the Riverfront

Restaurant on December 10, 1985, but he claimed that

he and Traitz were longtime friends and that the

money was a wedding gift. He denied that he had set

aside Burns’ conviction as a result of his telephone

conversation with Traitz about the case. Gov’t C.A.

Br. 9, 26-27; Pet. 4-5.

At the close of the evidence, petitioner moved for a

judgment of acquittal, relying on McCormick v.

United States, 111 S. Ct. 1807 (1991), to support his

claim that “the mere receipt of money in itself is

ambiguous.” July 17, 1991, Tr. 172. The court denied

the motion. It noted that, unlike this case,

McCormick involved a payment that was alleged to be

a campaign contribution. The court explained that it

could see “the great danger to anybody holding public

office of confusing their responding to a constituent’s

needs and having also received a campaign con-

tribution from that constituent.” Jd. at 173. “But,”

the court continued, “what is a judge allowed to do for

a constituent? Nothing.” /bid.

4 Linda Dincel, who had been present at the restaurant

when petitioner received the $500, was also present during

much of petitioner’s interview with the FBI agent, but made

no comment. She married petitioner 12 days later. Gov’t C.A.

Br. 9.

7

Prior to instructing the jury, the district court

described the instructions it planned to give. With

respect to the elements of extortion under color of

official right, the court said, among other things, that

it intended to instruct the jury that “i]t is enough

that the benefactor transfers something of significant

value to the public official, with the expectation that

the public official wili 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.” July 19, 1991, Tr. 148. Defense counsel

responded: “I take it then, you’re rejecting the

Defendant’s point for charge that was submitted this

day to the Court?” Jd. at 149. The court said “yes.”

Defense counsel then turned to what he referred to as

a question “of particular concern, * * * the

admissibility of the tapes.” bid.°

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

5 While arguing that petitioner sought an instruction that

“required proof of a quid pro quo,” Pet. 5, petitioner has not

reproduced the instruction that was requested, and we have

not been able to locate such a requested instruction, either in

the record or elsewhere. (Government trial counsel’s recollec-

tion is that defense counsel gave the district court a handwrit-

ten proposed instructi8n shortly before the court described the

instructions it planned to give.)

8

public official will extend to him some benefit

or refrain from some harmful action. And the

public official accepts the thing of significant

value * * * that 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 benefit knowing the motive.

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 of its

case that the public official misused his office

in a sense that he granted some benefit or

advantage to his benefactor to which the

benefactor was not entitled.

A public official misuses his office when he

passively receives and retains property

because of his office. In short, 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 office in and of

ecto mata ae

9

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.

Pet. C.A. App. Dal74-Dal75. See also id. at Dal73

(government must prove beyond a reasonable doubt

that “the money was given to the defendant due to his

official position, that is, because he was a judge,” and

that “the defendant accepted the money knowing that

it was being given to him because of his official

position”), Dal75-Dal76 (same), Dal77-Dal178 (same).

4. The court of appeals affirmed by judgment order.

Pet. App. la-3a. The court stated that it had con-

sidered petitioner’s contention that “the district

court erred in ruling that the Hobbs Act does not

require proof of a quid pro quo in the context of

alleged under color of official right offenses,” as well

as his claim that the case “must be remanded for a

hearing as to whether the money paid to [petitioner]

by Traitz was derived from a fund properly classified

as an asset of the Roofer’s Union|.}” Pet. App. 2a.°

6 The cuurt likewise rejected petitioner’s contentions that

the government had not “adduced sufficient evidence of [his]

knowledge that the money was provided to him because of his

office,” Pet. App. 2a; that some of the district court’s eviden-

tiary rulings “violated [his] rights to confrontation and a fair

trial,” Pet. App. la-2a; and that his prosecution in federal court

violated the Double Jeopardy Clause and his right to a speedy

trial, Pet. App. 2a. Although petitioner mentions the last of

10

ARGUMENT

1. Petitioner first contends, Pet. 40-63, that the

district court should have instructed the jury that it

could not convict him unless the government proved

that he agreed to commit a specific act in return for

the payoff. There is no merit to that contention.

In McCormick v. United States, supra, which

involved the receipt of campaign contributions, this

Court heid that “(t]he receipt of contributions is * * *

vulnerable under the [Hobbs] 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.” 111 S. Ct. at 1816. The Court

reasoned that “[t]o 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 con-

tributions or expenditures, as they have been from

the beginning of the Nation.” Jbid. In Evans v.

United States, 112 S. Ct. 1881 (1992), in contrast,

which involved the receipt of a $7,000 payment that

was not a campaign contribution, the Court held “that

the Government need only show that a public official

has obtained a payment to which he was not entitled,

knowing that the payment was made in return for

official acts.” 112 S. Ct. at 1889.’

those contentions in his statement of the case, Pet. 6-9, he has

not otherwise pursued any of them in this Court.

7 The difference is in the specificity of the agreement. That

is, it would not be a violation of the Hobbs Act to make a

campaign contribution to a legislator because the legislator was

11

In this case, petitioner did not claim that the $500

was a campaign contribution. Instead, he claimed that

Traitz gave him the $500 as an early wedding gift.

Pet. 5. It is clear that the jury did not believe

petitioner, but instead accepted the evidence adduced

by the government that the $500 was paid for access,

influence, and favorable treatment in cases involving

union members. That evidence included the recorded

conversations between Traitz and union members

about how petitioner “comes through” for them,

Traitz’s telephone call to petitioner asking him to

give the nephew of a union member a “clean bill” in a

case about to come before him, and petitioner’s

setting aside of his own verdict in that case after the

union member reminded him, at sentencing, of the

union connection. In other words, petitioner was

placed “on retainer” by the annual payment. And the

evidence showed that he “came through,” even though

the jury was instructed that the government did not

need to prove that petitioner had actually misused his

office.

generally in favor of protectionist trade policy and the

contributor’s business would profit from protectionist legisla-

tion. But it would be a violation of the Hobbs Act, under

McCormick, for a candidate to accept a campaign contribution

that was expressly conditioned on the candidate’s agreement to

vote in a particular manner on a specific matter. It would also

be a violation of the Hobbs Act, under Evans, for a legislator to

accept a cash payoff (not a campaign contribution) from a

person the legislator knows to have an interest in protectionist

legislation, where the legislator knows that the payment was

made in return for the legislator’s official acts of support for

protectionist trade policies, even if no specific act was promised

in exchange for the payment.

12

The jury instructions that were given in this case

were consistent with EHKvans. The jury was

instructed that, in order to convict, it had to find 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 that “the

public official accepts the thing of significant value

knowing that it is being transferred to him because of

his office.” Pet. C.A. App. Dal74. That was sufficient

to satisfy Evans, for it shows that the jury found that

petitioner believed the payment was made “in return

for official acts.” 112 S. Ct. at 1889.°

2. Petitioner also contends, Pet. 63-64, that the

government failed to prove the interstate commerce

element of 18 U.S.C. 1951 beyond a reasonable doubt.®

8 Petitioner states, Pet. 52, that in McCormick, 111 S. Ct. at

1813 n.5, this Court “recognized that a conflict exists in the

Circuits respecting the applicability of the quid pro quo

requirement to non-campaign funds.” In fact, in the footnote

cited by petitioner, the Court recognized that there was an

inter-circuit conflict on the question whether an affirmative

act of inducement by a public official was an element of the

offense of extortion under color of official right. The Court

observed that resolution of that conflict would have to await

another day. 111 S. Ct. at 1813 n.5. That day came in Evans v.

United States, supra, and the Court held that inducement is

not required.

® Section 1951(a) prohibits obstructing, delaying, or affect-

ing commerce “in any way or degree.” Section 1951(b)(3)

defines “commerce,” in pertinent part, as “all commerce

between any point in a State * * * and any point outside

thereof; all commerce between points within the same State

through any place outside such State; and all other commerce

over which the United States has jurisdiction.”

sss ceiiimmiamaiiiaauaasmeamaiaaii

13

On appeal, petitioner raised a claim that he

conceded (Pet. C.A. Br. 47) he had not presented to the

district court. He requested a remand to determine if

the union’s legal services fund was an asset of the

union or a trust fund that belonged to eligible

members of the union as opposed to the union as an

entity. Pet. C.A. Br. 47-48. The court of appeals

denied the request for a remand without discussion.

| Pet. App. 2a.

| In this Court, petitioner asks for more. He argues

that the legal services fund “is not an asset of the

union,” that “the United States has failed to prove the

necessary jurisdictional element of the offense,” and

that “[a]n error in recognition of this factor would

constitute plain error.” Pet. 64. Review of that

contention is not warranted, if only for the reason

that it was neither raised in the court of appeals nor

addressed by that court. See, e.g., Solorio v. United

States, 483 U.S. 435, 451 n.18 (1987); Berkemer v.

McCarty, 468 U.S. 420, 443 (1984).

In any event, there is no merit to petitioner’s

contention. The evidence showed that the Roofers

Union locals for which Traitz served as the business

agent included within their jurisdiction the States of

New Jersey, Pennsylvania, and Delaware, and that

union members performed work for contractors in all

three States. Gov’t C.A. Br. 35, 37. The evidence also

showed that the $500 paid to petitioner came from two

sources: (1) kickbacks paid to Traitz by a law firm

that represented union members under a prepaid legal

services plan, which was funded by the union-

affiliated contractors and which operated on behalf of

union members from all three States, and (2) checks

14

drawn on the union’s account at Continental Bank and

payable to union stewards, ostensibly to reimburse

them for travel and telephone expenses, but which

were in fact cashed by Traitz’s secretary and given to

Traitz. Gov’t C.A. Br. 4-5, 35, 37-38; see also Pet. 12 &

n.3, and Pet. C.A. App. Da42-Da43, Da58-Da61, Da84.

The district court instructed the jury that in order

to convict petitioner, it had to find beyond a

reasonable doubt that because of the $500 payment to

him, “interstate commerce was delayed, interrupted

or adversely affected.” Pet. C.A. App. Dal76. The

court explained that “interstate commerce may be

adversely affected within the meaning of these

instructions by an increase in the cost of doing

business in interstate commerce, or by the reduction

of profits from interstate business.” Jbid. It

concluded by stating that “[iJf 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 * * * then the interstate

commerce element has been satisfied.” Jd. at Da177."°

10 After the court instructed the jury, petitioner’s attorney

asked the court “to instruct the jury that in the event that they

find that the money that was used by Steven Traitz in this case

came from Herbert Fisher, that they may not consider that

money was derived in any way from a source which would

affect interstate commerce.” Pet. C.A. App. Dal87. (Fisher

was a member of the law firm—Bloom, Ocks and Fisher—that

represented union members under the union’s prepaid legal

fund and that kicked back ten per cent of its fees in cash to

union officials, who then distributed the money to public

officials helpful to the union. Gov’t C.A. Br. 38.) Petitioner

himself then expanded on this request, arguing that “if the

15

The instructions accurately defined the interstate

commerce element for the jury. See Stirone v.

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

United States v. McKenna, 889 F.2d 1168, 1173 (1st

Cir. 1989); United States v. Murphy, 768 F.2d 1518,

1530-1531 (7th Cir. 1985), cert. denied, 475 U.S. 1012

(1986); United States v. Cerilli, 603 F.2d 415, 424 (3d

Cir. 1979), cert. denied, 444 U.S. 1043 (1980). A

reasonable jury could find that the $500 payment to

petitioner affected commerce within the meaning of

the Hobbs Act by depleting or diminishing assets of

the union, which operated in and derived its money

from three States. Accordingly, the interstate

commerce element of the statute was satisfied.

money had—once it reached Mr. Fisher was his and he illegally

gave it, then the union wasn’t entitled to it and therefore it was

not a proper asset of the union and therefore the proper assets

were not depleted. It’s not a proper asset if somebody steals

money.” Pet. C.A. App. Dal87. In other words, petitioner

contended that if the payoff he obtained had been received by

the union as a kickback, he was absolved of liability. The court

properly denied the requested instruction, ibid., as there is no

legal basis for petitioner’s contention that extortion cannot

affect interstate commerce if the funds paid to the defendant

were unlawfully obtained by the victim in the first place.

16

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WiLLIAM C. BRYSON

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

VICKi S. MARANI

Attorney

FEBRUARY 1993