Petition for Writ of Certiorari — Hulahan v. United States

In th

- Supreme Court of the United States

Peat pet tee Ce Oe

: PAUL H. HULAHAN (PETITIONER), APPELLANT,

Vs.

UNITED STATES OF AMERICA, APPELLEE.

P, elition for Whit of Cwlteran

_ Your petitioner, Paul H. Hulahan, respectfully requests

_ this Honorable Court to grant a Writ of Certiorari in this

‘cause and review the opinion and decision of the United

‘States Court of Appeals, Eighth Circuit, and in support of

‘said petition submits the following:

_ 1. The decision of the United States Court of Appeals,

a er

Seem repent,

2

2. The verdict and judgment was entered in the United

States District Court, Eastern District of Missouri, Eastern

Division on the 21st day of January, 1954, and the judg-

ment was affirmed by the United States Court of Appeals

on the 20th day of July, 1954.

3. No motion for rehearing in the United States Court of

Appeals, Eighth Circuit, has been filed.

4. The questions presented for review are: 1. The suffi-

ciency of the evidence to sustain the verdict and judgment. —

2. Assuming that the evidence was sufficient to prove an

extortion, whether interstate commerce was affected, or

could have been affected had the threatened acts been

carried out, under the statute. 3. Was the jury properly in-

structed on the question of interstate commerce?

5. The Statute involved in this matter is Title 18, United

States Code, Section 1951, 62 Stat. 793, reading as follows:

“INTERFERENCE WITH COMMERCE BY

THREATS OR VIOLENCE

(a). Whaeeas bel ente-wer or digren ebetiuds, dail

or affects commerce or the movement of any article or

commodity in commerce by robbery or extortion or at-

tempts or conspires so to do, or commits or threatens. !

section shall be fined not more than $10,000 or im-

prisoned not more than twenty years, or both. ‘

(b) As used in this section—

(1) The term “robbery” means the unlawful taking

or of peniiied. prepecty: Somme the penen.

in presence of another, against his will, by means

or or threatened force, or violence or fear of

~ injury, Immediate or future to his person or proper

or property in his custody or possession, or the person

3

or property of a relative or member of his family or

of anyone in his company at the time of the taking or

obtaining.

(2) The term “extortion” means the obtaining of

property from another, with his consent, induced by

wrongful use of actual or threatened force, violence,

or fear, or under color of official right.

(3) The term “commerce” means commerce within

the District of Columbia, or any Territory or Posses-

sion of the United States; all commerce between any

point in a State, Territory, Possession, or the District

of Columbia and any point outside thereof; all com-

merce between points within the same State through

any place outside such State; and all other commerce

over which the United States has jurisdiction.

(c) This section shall not be construed to repeal,

modify or affect section 17 of Title 15, sections 52,

101-115, 151-166 of Title 29 or sections 151-188 of Title

45. Le

6. Petitioner was indicted on July 23, 1953, on eight counts

under the provisions of the Statute above quoted. Count

One of the indictments charged a conspiracy with persons

then deceased, to extort money from one M. G. Carpenter,

who was constructing a home development project in St.

Louis County, Missouri. Counts two and three charged an

attempt to delay, obstruct and interfere with interstate

commerce through the demands on M. G. Carpenter, in-

volving the same set of facts as Count one.

Counts four and five charged an attempt to and an extor-

» tion of four hundred dollars from one John Farrington, an

employee of Jones-Hattelsater Construction Company by

petitioner, thereby having attempted to and did delay,

affect and interfere with interstate commerce.

4

Counts six, seven and eight charged a conspiracy with a

person, then deceased, to extort money from one Joseph L.

Pohl, the extortion of money from the said Pohl and the

delay, obstruction or interference with interstate com-

merce, and the attempt to extort and delay, affect or ob-

struct interstate commerce, respectively.

Under the first three counts the evidence of the govern-

ment tended to show that Petitioner with one Gribbler had

gone to M. G. Carpenter and stated that if he would pay

each of them $2,000.00 then and $2,000.00 a month for a

year they would assure him that there would be no labor

trouble on the project. Petitioner was referred to Car-

penter’s attorney and after discussing the matter with him,

the entire matter was dropped.

The government’s evidence under Counts four and five

tended to show that sometime after a strike had been

settled on a construction job being done by Jones-Hattel-

sater Construction Company for Valier-Spies Milling Com-

pany, petitioner went io Farrington and stated that peti-

tioner should be paid about $1,000.00 for his help in

settling the strike. That a payment of $400.00 was made to

petitioner.

The evidence of the government as to Counts 6, 7 and 8

tended to show that the McCarthy-Pohl Construction Com-

pany was doing grading work for the City of St. Louis at

the Municipal Airport preliminary to the construction of —

runway extensions and other work. That during a strike

‘by the laborer’s union, a payment was made to petitioner, —

and the strike was settled. Pohl did not testify, but one

Ashby testified that Pohl had stated to him that he was

sists ed ad dg cps gc fs

5

Petitioner, a business agent for Laborers’ and Hod-

carriers’ Union No. 42, had no men working the jobs

mentioned in Counts one, two, three, five, six, seven and

eight.

All projects involved were construction work. In Counts

one, two and three it was a community housing project. In

Counts four and five, an addition to a flour mill. In six, —

seven and eight preparing for extension of the Airport.

On all counts there was evidence of purchase of materi-

als, or rental of equipment from outside the State of

Missouri. There was no evidence that any material had

been delayed in interstate commerce or of any interference

with interstate commerce. There was evidence of delay in

construction in counts four, five, six, seven and eight, but

no showing was made that any shipments or interstate

commerce was affected or delayed due to those delays in

construction.

None of the purported demands were made against

companies actually engaged in interstate commerce, all

purported demands being made against construction com-

panies. —

7. The United States Court of Appeals, Eighth Circuit, in

its opinion and decision has declared that the construction

of buildings, materials for which are purchased from out-

side the State, constitute interstate commerce within the

meaning of the statute. Further, the Court has held by

its opinion and decision in this case that the construction of

facilities for future use in interstate commerce, constitute

interstate commerce within the meaning of this Statute.

This holding is clearly contrary to and in conflict with the

decisions of this Court in the cases of Levering & Co. vs.

Morrin, 289 U. S. 103, Industrial Association of San Fran-

cisco vs. United States 268 U. S. 64 and New York Central

Railroad Co. vs. White 243 U. S. 188.

In the case of Levering & Co. v. Morrin, supra, this court

stated as follows:

“If thereby shipment of steel in interstate commerce

was curtailed, that result was incidental, indirect and

remote and therefore, not within the Anti-Trust Acts

as this Court prior to the filing of the present bill had

already held.”

As pointed out by this Court in the case of Industrial

Association of San Francisco vs. United States, supra, it

was not interstate commerce which was sought to be re-

strained, Sut the object of this restraint was a regulation of

building operations within a local area.

This Court in the case of New York Railroad vs. White, _

supra, held that the construction of facilities for future

use of interstate commerce did not constitute interstate _

commerce. :

Petitioner contends that the opinion of the United States

Court of Appeals has gone beyond the decisions of this

Court on what constitutes interstate commerce and what

actions have an effect on interstate commerce. If the

possible shipment of steel in the Levering & Co. vs. Morrin

case, supra, did not affect interstate commerce, then the

purported actions of the petitioner in this case could not —

have affected interstate commerce. The mere fact that M. —

G. Carpenter and Co. bought materials from outside the _

State of Missouri did not make an attempt to extort money —

from the.company an act affecting interstate commerce,

The sameis true of the facts in all counts of the Indict-

meni. The opinion is contrary to decisions of this Court and —

;

if permitted to stand would have the effect of declaring

pA

a

“'

that any act might-affect interstate commerce. The crime

of extortion would be removed from the jurisdiction of the

courts of the various states and placed solely and wholly

within the jurisdiction of the Federal Courts.

Petitioner contends that it was not the intention of Con-

gress in passing this act to make the act all inclusive, and

the opinion and decision of the United States Court of

Appeals goes beyond the intention of the act, and beyond

all precedents in this matter. The opinion has completely

omitted from consideration the fact: that none of those on

whom the purported extortion was committed, were en-

gaged in interstate commerce. The future use of facilities

is too remote to confer jurisdiction under this Statute as

has been pointed out by this Court, the proposed future use

may never occur.

This is the first case wherein it has been attempted to

punish under this Statute for purported extortions where

interstate commerce was not actually in existence. The

cases cited in the opinion of the Court are those cases

wherein the commodity was in interstate commerce and

the extortion would affect the flow of interstate commerce.

This was not true in this case, and the Court of Appeals

has not distinguished these cases on their facts. Being a

case of first impression this Court should take jurisdiction

of this matter, and determine the issues involved, as”

many other prosecutions are being made on similar facts.

Therefore this case is of great interest and the issues being

of first impression, the Court should grant the. Writ re-

The sufficiency of the evidence has been challenged by

_ Petitioner at all stages in this matter. Petitioner contends

Z _ that the evidence was insufficient under all counts, especi-

ally in those counts wherein, petitioner represented no em-

ployees and had no control over the work in any manner.

For the reasons stated, petitioner requests this Court

issue a Writ of Certiorari and review the opinion and de-

cision of the United States Court of Appeals, Eighth Cir-

cuit, in this matter.

Respectfully submitted,

C. ARTHUR ANDERSON,

Attorney for (Petitioner) Appellant.

722 Chestnut Street, St. Louis 1, Missouri.

APPENDIX.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Pau H. HuLaHAN, Appellant,

vs. No. 15000

UNITED STATES OF AMERICA, Appellee.

Appeal from the United States District Court for the

Eastern District of Missouri

{July 20, 1954]

C. Arthur Anderson (Charles M. Shaw and Wayne C.

Smith, Jr., filed a separate reply brief), for Appellant.

Forrest Boecker, Special Assistant to the United States

Attorney (Harry Richards, United States Attorney,

and Tom DeWolfe, Special Assistant United States

Attorney General, were with him on the brief), for

Appellee.

Before SANBORN, JOHNSEN and CoLLet, Circuit Judges.

Sansorn, Circuit Judge.

Paul H. Hulahan, upon his plea of not guilty to an indict-

ment containing eight counts, was tried by a jury and con-

victed. The Statute upon which each of the counts was

10

based is $1951, Title 18 U.S.C. That statute, so far as

pertinent, provides:

“Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or

commodity in commerce, by * * * extortion or attempts

or conspires so to do, * * * shall be fined not more than

$10,000 or imprisoned not more than twenty years,

or bo ”

The statute defines “extortion” as “the obtaining of

property from another, with his consent, induced by wrong-

ful use of actual or threatened force, violence, or fear, or

under color of official right.” “Commerce,” as defined in

the statute, “means * * * 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.”

The jury found Hulahan guilty upon each of the eight

counts of the indictment. The District Court imposed a

sentence of twelve years imprisonment and a fine of $1,000

upon each count, the sentences of imprisonment to be

served concurrently. Hulahan has appealed. He contends

that the Court erred in denying his motion for a judgment

of acquittal made before, and renewed after, verdict. He

also contends that there was error in the Court’s charge

to the jury.

It is elementary that in reviewing the question of the

adequacy of the evidentiary basis for a verdict of guilty, —

this Court must take that view of the evidence which is

most favorable to the Government and give to the Govern- _

ment the b t of all inferences which reasonably can be —

drawn from such evidence. Glasser v. United States, 315 _

U. S. 60, 80; Neal v. United States, 8 Cir., 114 F. (2d) 1000, —

Se

E1 ewe ate

1002; Hansbrough v. United States, 8 Cir., 156 F. (2d) 327.

This is saying no more than, that a jury verdict, whether

factually right or wrong, is conclusive upon this Court if

sustained by substantial evidence or by permissible infer-

ence drawn therefrom. Elzig v. Gudwangen, 8 Cir., 91 F.

(2d) 434, 444. With the credibility of witnesses or weight

of evidence this Court can have no concern. Glasser v.

United States, supra, page 80 of 315 U. S.; United States v.

Compagna, 2 Cir., 146 F. (2d) 524, 526.

When the defendant in a criminal case is convicted upon

several counts of an indictment, the judgment will be sus-

tained if he was properly convicted under any count which

is good and is sufficient in itself to support the judgment.

Gantz v. United States, 8 Cir., 127 F. (2d) 498, 501; Bowen

v. United States, 8 Cir., 153 F. (2d) 747, 748-749; Hans-

brough v. United States, 8 Cir., 156 F. (2d) 327, 328. A lawful

conviction under a single count of the indictment in this

case will sustain the judgment appealed from.

Hulahan, however, contends that the evidence of the

Government was insufficient to sustain his conviction

under any count of the indictment because the evidence

failed to show that he was, within the meaning of the

Statute, guilty of extortion or of any attempt or conspiracy

to extort, and that the evidence also failed to prove that

what he was shown to have done had affected, or could

have affected, interstate commerce.

It is unnecessary to state in detail the charges contained

in each of the counts of the indictment, or the evidence

adduced in support of each of thim.

Stated generally and briefly, the charges against Hula-

han, a representative of a local labor union, were, in sub-

stance, that, contrary to the statute, he conspired to extort,

alah Saas

12

attempted to extort or extorted, by threats of labor trouble

and other threats, money for his own personal use from

representatives of three different companies engaged in

construction work in St. Louis County, Missouri, two of

which companies were dependent, for the continuation of

the work undertaken by them, upon local labor represented

in part by Hulahan, and upon equipment, supplies and

materials shipped into Missouri from points in other states.

One of the companies, M. H. Carpenter, Inc., was engaged

in constructing a home development project known as

Glasgow Village. The second company was constructing a

flour packaging and storage building for the Valier and

Spies Milling Company, which used the instrumentalities

of interstate commerce for obtaining grain and distributing

the company’s products. The third construction company —

. was doing the grading in connection with the construction

of new runways and the improvement of old runways for

the St. Louis Municipal Airport, in order more adequately

to serve interstate commerce by air.

We shall refer to the first and second counts of the

indictment. The first count charged Hulahan with having

conspired with Gribbler, who was also a labor union repre-

sentative (since deceased), to obstruct, delay and affect

commerce, as defined in $1951, Title 18 U.S.C., and the

movement of articles and commodities in commerce, by

extortion, and alleged that, in furtherance of such con-

spiracy, Hulahan and Gribbler attempted to obtain, by

threats, $50,000, for their personal use and profit, from

Miles H. Carpenter, representing M. H. Carpenter, Inc.,

which was constructing the project known as Glasgow —

Village, The second count of the indictment charged Hula-

han with ‘attempting to obstruct, delay and affect com- —

merce, as defined in $1951, Title 18 U.S.C., by extortion

es #50000 for his person

13

use and profit from Miles H. Carpenter representing M. H.

Carpenter, Inc.

In support of these charges, Miles H. Carpenter testified

that Hulahan and Gribbler represented all the white labor-

ers on the project; that the lumber for constructing the

project came from the west coast and was shipped to Bissell

Station adjoining the project and was trucked to the job

site from that Station; that about a carload a week was

scheduled for delivery; that the order for lumber was

under Carpenter’s control, and deliveries could be delayed

or accelerated according to what was needed; that yellow

pine was purchased in Arkansas, Louisiana, Texas and

Tennessee, and delivered by truck from the mills to the

job site; and that bath tubs and other fixtures were shipped

in from Alliance, Ohio. Carpenter in his testimony told of

his conversations with Hulahan and Gribbler at a time

when there were 128 houses under construction on the

project, to be finished within a year. He testified that

Hulahan, after stating that he and Gribbler could be “of a

lot of help,” said: “You pay us $2,000 apiece and $2,000 a

month and we will see that you never have any labor

trouble out here. The job will run smoothly and you will

not have any trouble.” Carpenter also told of Hulahan’s

intimation that it would not run smoothly otherwise. Car-

penter testified that he told Hulahan and Gribbler that

he must have a few days to think their proposition over,

and that this was the first time he had ever been approached

by a labor representative for a “shakedown.” Carpenter

- testified that he then employed his counsel, Selden Blumen-

feld, “to call up Hulahan, talk with Hulahan, and get

Hulahan off my neck.”

The following testimony of Selden Blumenfeld is illus-

trative of Hulahan’s conduct in attempting to exact money

_ from Carpenter:

4

“T am a St. Louis lawyer and: represented Miles H.

Carpenter in a labor matter involving Glasgow Village

in the spring of 1951. In March, 1951, I talked to

Hulahan over the telephone. I told Hulahan that I

represented Carpenter and that Carpenter had dis-

cussed with me matters that had gone on between

Hulahan and Carpenter, and that Carpenter had re-

tained me to handle the matter further with Hulahan,

and that I wanted to meet him and discuss the matter —

in further detail. Hulahan said, ‘Well, where can we

meet?’ I suggested that, we meet in my office, that I

didn’t know him, and wouldn’t recognize him if we

met in any other place, and he said, “Well, I don’t want

to come down to your office. Your office might be

bugged.’ I didn’t understand the meaning of ‘bugged’

at that time, but later I found out that it is an expres-

sion used to mean that the office might be wired to

take down a conversation. I tried to assure Hulahan

that the office was not wired, and then suggested that

inasmuch as I didn’t know him to recognize him by

seeing him, that he might come to my office and

introduce himself and from my office we could go over

to the American Hotel and have luncheon and carry

on our discussion there. Hulahan said that that was

agreeable.

“I met Hulahan personally about the latter part of

March, 1951. I met him shortly after noon on March

20, 1951. I met him at my office on March 29, 1951, at

706 Chestnut Street. On March 29, 1951, Hulahan came

to my office and he was announced and came into my

room and stood there for a moment, and we shook

hands and I got up from my chair and walked over

to the hall tree to get my topcoat to leave with him.

Then, I think Hulahan said, ‘Well there is no use for

us to.leave. We can talk here.’ So I went back to my —

chair. we started our conversation. Hulahan said

that he had this conversation with Mr. Carpenter some —

days before that and that the proposal he, Hulahan, —

a

ao

Wes

15

had made to Mr. Carpenter could then be modified

somewhat. Hulahan stated that if Carpenter would

pay a lump sum of $50,000 in cash, he, Hulahan, would

see to it that there would be no labor difficulties on

the Glasgow Village job, and that there would be no

jurisdictional disputes between the various crafts that

were working there. Hulahan said that production on

the job would be increased and the general efficiency

of all the crafts would be better. Hulahen said that if

something was not done along the line suggested by

him, that is to say, payment of the $50,000 due him

from Carpenter, that there would always be labor

difficulties on the job, and that the production would

be held to a minimum, men would be pulled off the

job, and work that might have been done would have

to be done over again because of damages that might

occur to the work.” A

There is no doubt that, under the evidence of the Gov-

ernment, Hulahan was guilty of conspiracy to extort, of

attempts to extort, and of actually in two instances extort-

ing, money from the construction companies named in the

indictment, by means of express or implied threats of labor

trouble. We think that Hulahan was shown to have been

doing the very things that Congress, in enacting §1951,

Title 18 U.S.C., sought to reach and to make federal

offenses, provided interstate commerce was affected.

Hulahan contends that what he was shown by the evi-

dence to have done was not proved to have affected inter-

state commerce directly or substantially or at all, and that

the effects of his attempts to exact tribute or his exaction

of tribute from the companies engaged in local construc-

tion work in Missouri were too indirect, unsubstantial and

remote to bring him within the scope of the federal statute.

This Court, however, in Nick v. United States, 8 Cir., 122 F.

(2d) 660, 668 (certiorari denied 314 U.S. 687, rehearing

16

denied 314 U.S. 715, rehearing denied 316 U.S. 710), held

that the Anti-Racketeering Act, 18 U.S.C., 1940 Ed., §§420a-

420e, from which $1951, Title 18 U.S.C., is derived, was

based upon the protection of interstate commerce, was

valid, and was sufficient in scope to cover extortion from

local exhibitors of moving picture films who were depend-

ent upon interstate commerce for films to exhibit. We

have no doubt that Congress has the power to deal with

extortion or attempted extortion actually or potentially

affecting interstate commence, just as it has power to deal —

with unfair labor practices so affecting interstate com- —

merce. Nick v. United States, supra, page 668 of 122 F. (2d). —

See and compare, National Labor Relations Board v. Fain- —

blatt, 306 U.S. 601, 604-606; National Labor Relations Board

v. Denver Building & Construction Trades Council, 341

U.S. 675, 683-684; National Labor Relations Board v. Crowe

Coal Co., 8 Cir., 104 F. (2d) 633, 638-639, certiorari denied

308 U.S. 584. Compare, also, United States v. Employing

Plasterers Association of Chicago, 347 U.S. 186.

It seems apparent from the language of the statute that

it was the intent of Congress to protect interstate com-

merce against extortion or attempted extortion which in

any way or in any degree reasonably could be regarded

as affecting such commerce. The exaction of tribute from

contractors engaged in local construction work who are de-

pendent upon interstate commerce for materials, equip-

ment and supplies, or who are engaged in constructing —

facilities to serve such commerce, is, in our opinion, ies

scribed by the statute in suit.

The instruction of which Hulahan complains reads as.

follows: — ‘

“I charge you, as a matter of law, that if you believe _

the testimony of the Government witnesses with seni

17

ence to the federal jurisdictional element of interstate

commerce involved in this case, that is to say, the Gov-

ernment’s testimony with reference to the bringing of

various materials, commodities, and equipment, from

out of state to the job sites in question in this federal

judicial district, then you are instructed that defend-

ant’s activities as shown by the Government’s testi-

mony, if you believe the same, did delay, obstruct and

affect interstate commerce as that language is used in

the statutes under which these charges are brought.

That is to say, if you find the facts to be as testified to

by the Government’s witnesses, the Court has de-

termined as a matter of law that there has been a sub-

stantial effect on interstate commerce shown here by

the United States and that question is not for your

determination. However, before you can find the de-

fendant guilty under any or all of the counts in the

indictment you must find beyond a reasonable doubt

that the defendant has extorted mozxey or property or

conspired so to do, as those terms are defined in the

statute and other instructions given you by the Court.”

This instruction amounts to nothing more than a state-

ment that, if the jury believed the evidence of the Govern-

ment relative to the interstate shipment of materials, com-

modities and equipment for use by the construction com-

panies, the activities of Hulahan, if they constituted extor-

tion or attempts or conspiracies to extort, would necessarily

have affected interstate commerce within the meaning of

the statute. We think it was for the court, and not the

jury, to determine whether the Government’s evidence, if

believed, would bring the activities of the defendant within

the statute and sustain federal jusisdiction. A similar in-

struction was challenged in Nick v. United States, supra,

page 673 of 122 F. (2d). In that case, this Court said:

18 :

“* * * It is not for the jury to determine what is or

what is not interstate commerce—that is a question of

law. It is for the court to charge the jury that if certain

facts covered by the evidence are shown then there ig

such interference. This is what the court stated and its

statement is proper.”

Cf. United States v. Compagna, 2 Cir., 146 F. (2d) 524

Our conclusion is that Hulahan had a fair trial; that th

jury was justified, under the evidence, in finding .

guilty; and that the judgment appealed from should h

Attest:

Clark, U. S. Court of Appeals, Eighth Circuit.

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CITATIONS

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Cases:

Nick et al. v. United States, 122 F. 2d 660, certiorari

denied, 314 U.S. 687, rehearing denied, 314 U.S.

RE WUE ons Rabe s Kod shacehataeckxs 10, 13

Be I til ak eh eanieese iain sheds Cess « 12

United States v. Campagna, 146 F. 2d 524, cer-

tiorari denied, 324 U.S. 867, rehearing denied, 325

EE AGA LS Ob RAS CEN WERKE dR E ESHA ROSS 10

PE EU AMES Vad Sn vee sa wesc s tepeneseveusés 11

347 US. 186. PAREGcEMA WERK RAS Meee aca hoane bbs 11

Wickard v. Filburn, 317 U.S. 111................ 12

Statute:

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(1)

Suthe Supreme Court of the Wnited States

OcToBER TERM, 1954

No. 294

Pav. H. HULAHAN, PETITIONER

Vv.

UnITEeD STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH ~

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (Pet. 9) is

not yet reported.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on July 20, 1954. The petition for a writ of

certiorari was filed on August 19, 1954. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

|

QUESTION PRESENTED

Whether extortion of money by threats of caus-

ing a work stoppage from contractors who were

engaged in erecting a building project using mate-

rial obtained from outside the state and in con-

structing extensions of an airport and flour mill

doing interstate business interfered with commerce

within the purview of 18 U.S.C. 1951.

STATUTE INVOLVED

18 U.S.C. 1951 provides:

Interference with commerce by threats or vio-

lence.

(a) Whoever in any way or degree obstructs,

delays, or affects commerce or the movement

of any article or commodity in commerce, by

robbery or extortion or attempts or conspires

so to do, or commits or threatens physical vio-

lence to any person or property in furtherance

of a plan or purpose to do anything in violation

of this section shall be fined not more than

$10,000 or imprisoned not more than twenty

years, or both.

(b) As used in this section—

’ (1) The term ‘‘robbery’’ means the un-

lawful taking or obtaining of personal prop-

erty from the person or in the presence of

another, against his will, by means of actual

or threatened force, or violence, or fear of

injury, immediate or future, to his person

or property, or property in his custody or

3

possession, or the person or property of a

relative or member of his family or of any-

one in his company at the time of the taking

or obtaining.

(2) The term ‘‘extortion’’ means the ob-

taining of property from another, with his

consent, induced by wrongful use of actual

or threatened force, violence, or fear, or

under color of official right.

(3) The term ‘‘commerce’’ means com-

merce within the District of Columbia, or

any Territory or Possession of the United

States ; all commerce between any point in a

State, Territory, Possession, or the District

of Columbia 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.

(ec) This section shall not be construed to

repeal, modify or affect section 17 of Title 15,

sections 52, 101-115, 151-166 of Title 29 or sec-

tion 151-188 of Title 45.

STATEMENT

In the District Court for the Eastern District

of Missouri, a jury found petitioner guilty on all

counts of an eight-count indictment charging vio-

lations of 18 U.S.C. 1951, by conspiring to obstruct,

delay and affect commerce by extortion, by ob-

structing, delaying and affecting commerce by ex-

tortion, and by attempting to obstruct, delay and

4

affect commerce by extortion (R. 61-62). He was

sentenced to twelve years’ imprisonment on each of

the eight counts, the sentences to run concurrently,

and fined $1000 on each count (R. 66-67). On ap-

peal the judgment was unanimously affirmed (Pet.

App. 18).

The record may be summarized as follows:

Counts 1, 2, and 3

M. H. Carpenter and his associates, doing busi-

ness as M. H. Carpenter Company, began, in 1950,

the development of a new community in North St.

Louis County, Missouri, to be known as Glasgow

Village (S.R. 8).’ The development, when com-

pleted, was to comprise 2000 units (R. 28). Much

of the construction material was shipped to the

building site from points outside the State of Mis-

souri. The lumber came in full carload shipments

from the west coast (S.R.1). Yellow pine lumber

was purchased from several southern states: Ar-

kansas, Louisiana, Texas and Tennessee. Bath-

tubs were shipped from Alliance, Ohio; garbage

disposals from Los Angeles, California; screens

from Saginaw, Michigan; sheathing from Minne-

apolis, Minnesota ; and plaster board from Buffalo,

New York (R. 27). These materials and supplies

were scheduled for periodic deliveries, subject to

being accelerated or retarded depending on the

needs of the purchaser and occurrences which might

arise (S.R. 9).

1 The designation “S.R.” refers to the Supplemental Record

of Appellee.

_

5

Petitioner and Joe Gribbler, now deceased, were

business agents for the white laborers employed

on the Glasgow Village development (S.R. 1, 9).?

In mid-March, 195i, petitioner and Gribbler came

to Carpenter’s office on the building site and invited

him to come outside to their car for a conversation.

During the conversation, petitioner, alluding to the

large size of the project, demanded that Carpenter

pay $2000 apiece to petitioner and Gribbler, and

$2000 a month thereafter and promised Carpenter

that ‘‘ we will see that you never have any labor trou-

ble out here’’ (S.R. 3). Petitioner and Gribbler also

promised at that time to ‘‘take care of everybody

all along the line’’ to avoid labor trouble with the

other crafts (S.R. 4). When Carpenter remarked

that this was the first time he had ever been ap-

proached by a labor representative for a ‘‘shake-

down’’ petitioner told him it was customary in St.

Louis and that ‘‘they’re all paying it.’”’ (S.R. 4.)

Carpenter referred petitioner’s demand to his

attorney, Selden Blumenfeld, with instructions to

“‘get Hulahan off my [Carpenter’s] neck’? (S.R.

5). When Blumenfeld contacted petitioner in late

March, 1951, petitioner, modifying the proposal

made to Carpenter, said that if Carpenter would

pay a lump sum of $50,000 in cash, he, Hulahan,

would see that there would be no labor difficulties

on the Glasgow Village job, and that there would

be no jurisdictional disputes between the various

crafts that were working there. He further stated

? However, the petitioner testified that no members of the

Local which he represented were employed on the job (R. 42).

—

6

that if the sum was not paid him, there would al-

ways be labor difficulties on the job, that production

would be held to a minimum, that men would be

pulled off the job, and that work that might have

been done would have to be done over again because

of damages that might occur to the work (S.R. 6).

Following the refusal of Carpenter in early April,

1951, to meet the demand, petitioner told Blumen-

feld that he would accept from Carpenter and his

associates $5000 within 90 days and $2000 a month

for the duration of the construction of the Glasgow

Village job (S.R. 7). When Blumenfeld pointed

out that the latest demand was far in excess of the

original, petitioner suggested that Carpenter could

hide such payments in the payroll and charge it up

as an item of expense (S.R. 7-8).

Counts 4 and 5

Jones-Hattelsater Construction Company was, in

1950 and 1951, engaged in constructing a new build-

ing for bulk flour storage with equipment to be used

to operate the bulk storage, and an office building

for the Valier and Spies Milling Company, a divi-

sion of the Flour Mills of America, Inc. (S.R. 10,

13). The construction company obtained the

storage equipment and some reinforcing steel from

other states (R. 32). Valier & Spies purchased

wheat from out of state with which to make and

produce finished mill products. It received hard

wheat from Kansas and Nebraska; spring wheat

from Minnesota; and soft wheat from [Illinois

(S.R. 14). Ninety per cent of the finished mill

products were shipped out of the state (S.R. 14).

_—_

7

John Farrington, construction superintendent

for Jones-Hattelsater Construction Company on

the Valier & Spies project, before commencing con-

struction dealt with petitioner concerning a supply

of laborers for the project and the rules and regu-

lations to appertain to laborers employed (S.R.

10). Farrington continued to deal with petitioner

on such matters after the start of construction in

April 1950. In October 1950 petitioner called a

strike, causing a complete work stoppage which

lasted four or five weeks, over the question of who

should carry metal forms on the job (S.R. 10). In

early December, 1950, petitioner approached Far-

rington and stated that since he had helped to get

the job back in progress it ought to be worth about

$1000 to the construction company. He further

remarked that if he was paid he would smooth the

work out. When petitioner’s demand was referred

to Clarence P. Reedy, Vice President of the con-

struction company, Reedy authorized the payment

of a couple hundred dollars to petitioner to keep

down trouble on the job (S.R.10). Petitioner was

given a check for $200 made out to cash (S.R. 10-

11). In February, 1951, petitioner again told Far-

rington that ‘‘he would like to have a little more

of that green stuff to keep this job smoothed down’’

(S.R. 11). Reedy,. when informed of this new

demand, authorized payment to petitioner of a

couple hundred dollars ‘‘if it will calm things down

any.’’ Farrington gave petitioner $200 in cash

(S.R. 11, 12).

The four or five-week strike called by petitioner

—

8

in October, 1950, on the Valier & Spies construction

project delayed completion of the building (S.R.

14). This strike, by delaying construction, ham-

pered Valier & Spies in their program to reduce

their cost of handling flour and finish milled prod-

ucts, and cost them between twenty-five and thi.ty

thousand dollars (S.R. 14).

Counts 6,7 and 8

During the period of time between 1949 and 1952

McCarthy-Pohl Contractors, Inc., pursuant to a

contract with the City of St. Louis, was engaged

in draining, grading, and leveling an area of land

at the Lambert-St. Louis Municipal Airport, as

perliminary work in an expansion program for the

extension of existing runways, construction of new

runways, and preparation of sites for the construc-

tion of a new terminal building and some hangars.

(S.R. 14-16). The Lambert-St. Louis Municipal

Airport is owned and operated by the City of St.

Louis for the use of commercial, private, and mili-

tary airplanes. These flights carry passengers,

mail, freight, and express, and connect with air

carriers in and out of Missouri going transconti-

nentally, and north and south. The runways, taxi-

ways, hangars and administration buildings of this

airport service interstate flights to all major termi-

nals throughout the United States and are used

by many large interstate and foreign air carriers.

The expansion program for the airport in which the

McCarthy-Pohl Contractors, Inc., were engaged

was necessitated by the increase in air travel, the

change in type of air craft used in air travel, and

ee

the need for extended runways, additional runways,

new hangars, and a terminal building to handle the

additional traffic in an expeditious manner. Any

delay in the expansion program by delay in the con-

struction of the new facilities would delay the han-

dling of additional air traffic (S.R. 15-16). Some

of the equipment used by the McCarthy-Pohl Con-

tractors, Inc., in this construction work was pur-

chased or rented from sources outside the State of

Missouri (R. 37).

On September 14, 1950, the common laborers, en-

gaged on the Lambert-St. Louis Municipal Airport

construction project, went on strike (S.R.18). On

September 18, 1950, Joe Pohl, President of the

McCarthy-Pohl Contractors, Inc., met petitioner,

Gribbler, Higgins, and others at a union hall in St.

Louis, Missouri (S.R. 16-17). They demanded

money from Pohl and he agreed to pay them (S.R.

17). On September 19, the day following the meet-

ing of Pohl and petitioner in the union hall, Pohl

met petitioner in the Lennox Hotel in St. Louis

and delivered to him an envelope containing $1000

in cash (S.R. 17). At the time petitioner received

the money from Pohl, petitioner was armed with a

gun in a shoulder holster, which gun was visible

(S.R. 17). On the same day that payment was made

the strike of the common laborers ended (S.R. 18).

Again on October 23, 1950, Richard V. Ashby, es-

timator for the McCarthy-Pohl Contractors, Inc.,

met petitioner in the Lennox Hotel, St. Louis, Mis-

souri, and delivered to him on behalf of McCarthy-

Pohl Contractors, Inc., an envelope containing $800

in cash. At the time Ashby delivered the $800 to

9

—

10

petitioner, petitioner was armed with a gun in a

shoulder holster (S.R. 17-18).

ARGUMENT

Petitioner does not in this Court press the con-

tention that his acts do not amount to extortion.*

He contends that his extortions did not and could

not have affected interstate commerce since there

was no evidence that any shipment of material in

interstate commerce ‘had been interfered with or

delayed. This argument misconstrues the language

of the statute which relates to ‘‘whoever in any

way or degree obstructs, delays, or affects commerce

or the movement of any article or commodity in

commerce. ”’

As to Counts 1, 2, and 3, evidence was adduced to

prove that the M. H. Carpenter Company did, in

the course of its construction of Glasgow Village,

import into the State of Missouri from other states,

lumber, bathtubs, screens, sheeting, and plaster

board. Had the threats of petitioner to create labor

trouble on the Glasgow Village construction project

to enforce his extortionate demands been carried

out and a strike called by laborers for whom peti-

8 The evidence set forth in the Statement shows that peti-

tioner approached representatives of each of three companies

and demanded from them varying sums of money for his own

use, reinforcing his demand by a threat, either open or veiled,

that if the money was not forthcoming the victim would be

harassed by labor disputes. Such demands constitute extor-

tion within the meaning of the statute. Nick et al. v. United

States, 122 F. 2d 660 (C.A. 8), certiorari denied, 314 U.S. 687,

rehearing ‘denied, 314 U.S. 715, 316 U.S. 710, and United

States v. Campagna, 146 F. 2d 524 (C.A. 2), certiorari denied,

324 U. S. 867, rehearing denied, 325 U.S. 892.

_——

11

tioner acted, it is self-evident that the movement of

such materials in interstate commerce to the con-

struction site would have been obstructed and de-

layed. The impact of such demands would have

affected interstate commerce. United States v. Em-

ploying Lathers Association, 347 U. S. 198, and

United States v. Employing Plasterers Association,

347 U.S. 186.

As to Counts 4 and 5, evidence was adduced to

establish that the Valier & Spies Milling Company,

for whom the Jones-Hattelsater Construction Com-

pany was erecting a new bulk flour storage build-

ing with equipment, and an office building, was en-

gaged in interstate commerce in that it received

wheat from Kansas, Nebraska, Minnesota, and Illi-

nois, and shipped ninety per cent of its finished

mill products outside the State of Missouri. The

strike of laborers on the construction job called

by petitioner was proved to have hampered the mill-

ing company in its program to reduce the cost of

handling flour and finished mill products. Pay-

ments by the contractor to petitioner in response

to the latter’s extortionate demands to avoid future

labor troubles clearly affected interstate commerce

to the degree that labor trouble would have inter-

fered with interstate purchases of material.

On Counts 6, 7, and 8, the evidence established

that Lambert-St. Louis Municipal Airport, in serv-

ing as an air terminal and service point for many

interstate air carriers on interstate flights, was

an interstate air transportation facility. The pro-

gram for the expansion of the facilities of this air-

a

12

port clearly involved interstate air transportation.

The threat to and actual delay would have increased

the cost of interstate rentals of equipment.

Since petitioner’s extortion could, and did, dis-

rupt and interfere with the efforts of the milling

company and the airport to stimulate and expand

their interstate business, it did, in that way and in

that degree, delay and affect interstate commerce.

This Court held in Wickard v. Filburn, 317 U.S.

111, that the production of wheat by a farmer in

excess of his acreage allowance, though intended

for his own consumption and use on his farm, could

have such a substantial effect on interstate com-

merce in wheat as to make it subject to congres-

sional control. So extortion enforced by threats

of labor stoppages, in connection with construction

of facilities of interstate commerce, is properly

within the cognizance of Congress as a matter which

affects interstate commerce. Since Congress has

declared that ‘‘ Whoever in any way or degree ob-

structs, delays, or affects commerce’’ by extortion

or robbery shall be guilty of violating the statute, it

is not for this Court to weigh the exact impact of

petitioner’s conduct on interstate commerce so long

as some impact is, as in this case, established. Cf.

Polish Alliance v. National Labor Relations Board,

322 U.S. 643, 648.*

4 The contention of petitioner that it is question of fact for

the jury whether or not the conduct of petitioner has an “effect

on commerce” is contrary to the law. The question of whether

and to what extent the proven extortions, threats to extort

and conspiracies to extort affected the proven commerce is a

ee

13

CONCLUSION

The decision below is in accord with established

law, and no conflict is presented. It is therefore

respectfully submitted that the petition for a writ

of certiorari should be denied.

Simon E. SoseE.orr,

Solicitor General,

WarREN OLNEY ITI,

Assistant Attorney General,

BEATRICE ROSENBERG,

RICHARD J. BLANCHARD,

Attorneys.

SEPTEMBER, 1954.

question of law to be resolved by the court and not by the

jury. An instruction similar to that given in this case was

approved in Nick v. United States, 122 F. 2d 660 (C.A. 8),

certiorari denied, 314 U.S. 687, rehearing denied, 314 US. 715,

316 U.S. 710.

YW U. S. GOVERNMENT PRINTING OFFICE: 1954 314947 334