# Petition for Writ of Certiorari — Hulahan v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_2337%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1954 - **Citation:** 348 U.S. 856 ## Text 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. g ihc SG Seen hha ARON Wh Wee NWN S DESO I ida arcs eh ee Ata heudg bythe Skah O's ND os Ge bancesaeved ised eaudeesues sy SL ce lin teh evdadasshounheseakes ihe Laka Gea wed dee cake a iene shoe es LOX ha is tung gees Abe hw a ddA eb 4k abd ee SCown Nn He 2 8 & ) 5 — CITATIONS k : b : ij h 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: i a eas eka ech owe se eens wee 2 (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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_2337%3A1. Public record. Not legal advice.