UNITED STATES of America, Plaintiff-Appellee, v. Casimir STASZCUK, Defendant-Appellant.
No. 73-1869
United States Court of Appeals, Seventh Circuit
May 16, 1975
517 F.2d 53
Argued En Banc Feb. 18, 1975. Certiorari Denied Oct. 6, 1975. See 96 S.Ct. 65.
In March 1974, Gilstrap‘s case was put on the inactive docket in the Circuit Court of the City of Chesapeake, Virginia. However, in June 1974, his eight-year sentence was reduced to two years. Virginia then recommenced extradition, which Gilstrap has resisted. He also promptly moved the Circuit Court to dismiss his indictment on the ground that he was denied his right to a speedy trial. On denial of his motion, he filed this petition for a writ of habeas corpus in the district court.
Although Gilstrap has not yet been convicted on the Virginia indictment, he is currently in custody under the Virginia detainer, and his application for the writ is not premature. Nevertheless, he must first exhaust his state remedies. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-89, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Kane v. Virginia, 419 F.2d 1369, 1373 (4th Cir. 1970). By the terms of the statute, he must seek relief from the Virginia Supreme Court unless review there is unavailable or ineffective to protect his rights.
Gilstrap contends that he has exhausted his state remedies by his motion to dismiss the indictment. With its denial, he says, he can do no more because the Virginia Supreme Court will not review an interlocutory order denying a pretrial motion to dismiss an indictment. Sturgill v. Commonwealth, 175 Va. 584, 7 S.E.2d 141 (1940). As Woodard v. Commonwealth, 214 Va. 495, 201 S.E.2d 785 (1974), illustrates, post-trial review of a speedy trial issue is available in Virginia, but Gilstrap insists that this is an ineffective remedy.
However, post-trial review is not the only way in Virginia to secure adjudication of a claim that the state has denied a prisoner a speedy trial. Habeas corpus is available as a pretrial remedy. In Green v. Commonwealth, 40 Va. (1 Rob.) 731 (1842), the Court ordered the pretrial release of a prisoner who sought a writ of habeas corpus because the Commonwealth had not complied with a Virginia statute mandating a speedy trial. We have no reason to believe that the same procedure would not be available to test the alleged violation of the United States Constitution. Cf. Whitlock v. Superintendent, 213 Va. 429, 192 S.E.2d 802 (1972). Since
James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before FAIRCHILD, Chief Judge, and SWYGERT, CUMMINGS, PELL, STEVENS, SPRECHER, TONE and BAUER, Circuit Judges.
STEVENS, Circuit Judge.
Count III of the indictment1 charged that on December 8, 1970, appellant did obstruct, delay and affect commerce as defined in the Hobbs Act2 by extorting $3,000 from a person named Allen.3 The government proved that defendant received the $3,000 and that he did not oppose a subsequent zoning change authorizing the construction of an animal hospital. However, no such hospital was ever built. Therefore, there is no evidence that either the zoning change or the payment had any effect whatsoever, either favorable or unfavorable, on interstate commerce. The question presented is whether the federal statute reaches this extortion.
The question is novel and significant. The extraordinary growth of federal criminal litigation poses a serious threat to the quality of federal justice; moreover, this growth may not only reflect but also contribute to the continuing transfer of power from the several states to the national government. Since we have no desire to accelerate this trend unnecessarily, we approach the question with a special regard for appellant‘s claim that the federal prosecutor has overreached the proper limits of his jurisdiction. The importance of the issue merited the fresh consideration of the court sitting en banc. It should be decided neither by simple extrapola-
We first restate the essential facts and then explain why we believe that a fair consideration of the statutory purpose and its constitutional predicate require that the district court judgment be affirmed.
I.
In September, 1970, William Harris planned to build an animal hospital on property located in the 13th ward of the City of Chicago. As then zoned, such a use of the land was prohibited. Harris therefore paid $5,500 to Al C. Allen, who had acquired a reputation as “the zoning man“;4 Allen talked to defendant Staszcuk, who was then serving as alderman of the 13th ward; on September 15, 1970, an amendatory ordinance was introduced in the City Council.
On December 8, 1970, the zoning man paid the alderman $3,000. On that date, the alderman participated in the public hearing on the proposed ordinance, questioning objectors and, at least implicitly, supporting the proposal. Following the public hearing on December 8, pursuant to customary procedure, the zoning committee deferred action on the matter. A few weeks later, on January 27, 1971, the ordinance was approved by the committee and adopted by the City Council. Harris was thereafter free to construct his animal hospital.
In March, Harris received bids from three contractors. For reasons not explained in the record, however, the veterinarian apparently changed his plans and the hospital was never built. Instead, Harris improved his property with construction that would have been permitted before the zoning ordinance was amended.
The estimator for one of the three contractors testified that in his judgment construction of the animal hospital would have required the use of components manufactured outside of the State of Illinois.5 Neither of the other bidders testified. The nexus between the extortion and interstate commerce may therefore be described thusly: the extortion eliminated the alderman‘s possible opposition to the removal of a restriction which prevented Harris from building the hospital; if Harris had not changed his plans, the construction of the hospital would have involved the use of out-of-state materials. The jury found this nexus sufficient under the trial court‘s instructions on the commerce issue.6 A panel of this court originally concluded that it was too tenuous and reversed the conviction on Count III. After reargument and reconsideration we now affirm that conviction.
II.
The present form of the statute is a codification of a 1946 enactment, the Hobbs Act, which amended the so-called “Federal Anti-racketeering Act of
That purpose was described in Judge Learned Hand‘s opinion for the majority of the Circuit Court of Appeals in the Local 807 case as follows:
In conclusion we may add that a consideration of the evil at which Congress was aiming, seems to us to confirm the construction we are putting upon what it said. For a number of years before 1934—at least in the City of New York—the levy of blackmail upon industry, especially upon relatively small shops, had become very serious, and the local authorities either would not, or could not, check it. The courts were powerless, because the witnesses were terrorized and could not be protected if they told what they knew; the public felt themselves at the mercy of organized gangs of bandits and became much wrought up over the situation. It was, at least primarily, to check such Camorras that Congress passed this measure. United States v. Local 807, 118 F.2d 684, 687-688 (2d Cir. 1941).
A description of the statute as designed to eliminate the “levy of blackmail upon industry, especially upon relatively small shops,” casts a revelatory light on the problem presented by this case. An effective prohibition against blackmail must be broad enough to include the case in which the tribute is paid9 as well as the one in which a victim is harmed for refusing to submit. Since the payment would normally enable the business to continue without interruption,10 the inference is inescapable that Congress was as much concerned with the threatened impact of the prohibited conduct as with its actual effect.
Moreover, congressional concern was not merely a matter of providing federal protection to each of the “relatively small shops” being victimized, but rather reflected the legislative judgment that these entrepreneurs, in the aggregate, represented a component of indus-
The statute is not regulatory in character but instead is intended to remove artificial restraints on the free flow of goods. The elimination of “blackmail upon industry” can have no inhibitory effect on interstate commerce; it can only facilitate the operation of a free economy. Like the Sherman Act, which is broadly directed against private regulation of the free market, and which has been construed as an exercise by Congress of “all the power it possessed” to prevent restraints on commercial competition, see Apex Hosiery Co. v. Leader, 310 U.S. 469, 495, 60 S.Ct. 982, 84 L.Ed. 1311, and Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 76 L.Ed. 1204, the purpose of the Hobbs Act parallels the central purpose of the Commerce Clause itself.
That central purpose was described in these words by Justice Rutledge:
If any liberties may be held more basic than others, they are the great and indispensable democratic freedoms secured by the First Amendment. But it was not to assure them that the Constitution was framed and adopted. Only later were they added, by popular demand. It was rather to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view to Philadelphia. Thus the generating source of the Constitution lay in the rising volume of restraints upon commerce which the Confederation could not check. These were the proximate cause of our national existence down to today.
As evils are wont to do, they dictated the character and scope of their own remedy. This lay specifically in the commerce clause. No prohibition of trade barriers as among the states could have been effective of its own force or by trade agreements. It had become apparent that such treaties were too difficult to negotiate and the process of securing them was too complex for this method to give the needed relief. Power adequate to make and enforce the prohibition was required. Hence, the necessity for creating an entirely new scheme of government.
* * * * * *
So by a stroke as bold as it proved successful, they founded a nation, although they had set out only to find a way to reduce trade restrictions. So also they solved the particular problem causative of their historic action, by introducing the commerce clause in the new structure of power. W. Rutledge, A Declaration of Legal Faith, at 25-26 (1947).
The primary purpose of the Commerce Clause was to secure freedom of trade, to break down the barriers to its free flow, and to curtail the rising volume of restraints upon commerce that the Articles of Confederation were inadequate to control. A statute which has a purpose which so unambiguously parallels the fundamental purpose of its constitutional predicate must receive an expansive construction.
It is, therefore, not surprising to find that the language of the statute, its legislative history, and its interpretation by the Supreme Court all confirm an intent by Congress to exercise its full powers under the Commerce Clause. The definition of the word “commerce” in the 1934 Act encompassed “all other trade or commerce over which the United States
Against this background, we have no alternative but to conclude that Congress intended the Hobbs Act to apply to a case such as this and that it had ample power to effectuate that intent.
III.
There was no need to prove that the extortion was actually intended to obstruct or to affect interstate commerce. The commerce element of the Hobbs Act violation is jurisdictional. Recently the Supreme Court removed such doubt as theretofore existed about the prosecutor‘s burden of proving “anti-federal scienter.” See United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975).13
We are also persuaded that the cases which uniformly hold that a threatened effect on interstate commerce is sufficient to bring the statute into play notwithstanding the absence of any actual effect, correctly interpret the congressional purpose.14 Finally, we have no doubt that the extortion revealed by this record is a species of the “blackmail upon industry” which Congress mustered its full power to eradicate. The muscle of the faithless public servant is just as intolerable as the muscle of the Camorras described by Judge Hand.15
This does not mean, however, that we may ignore the constitutional limits on the power of the national government. Nor may we disregard the statutory language which requires the prosecutor to prove some connection with interstate commerce in every case.16 We hold, however, that the commerce element of a Hobbs Act violation—the
The jurisdictional inquiry must, of course, focus on the situation at the time of the offense. In this case the crime occurred on December 8, 1970. No actual effect on commerce occurred either before or after that date. It was, nevertheless, entirely reasonable for the jury, assessing probabilities as of that time, to find that a potential effect on commerce had been proved. The jury could reasonably infer that, as a result of the extortion on that date, there was then a likelihood that the movement across state lines of a furnace, plate glass, and plumbing and electrical fixtures would be affected. The events which occurred after December 8, 1970, the evidence concerning the interested parties’ plans and expectations, and the contractor‘s testimony about the need to use out-of-state components to build an animal hospital in Illinois were all relevant to the commerce issue. Contrary to the prosecutor‘s view, however, we do not think appellant‘s guilt or innocence may be determined entirely on the basis of the intent of the property owner or the zoning man; nor, on the other hand, do we think federal jurisdiction is defeated by the fortuitous circumstance that, after the crime had been committed, a change of plans occurred and the hospital was never built.19 Finally, contrary to appellant‘s argument, even though it is possible that another contractor might have been able to construct the hospital entirely with local materials, the testimony was adequate to support the conclusion that the use of out-of-state components was far more probable. The jury, like Congress, was entitled to assess probabilities.
The jury was properly instructed on the commerce issue and its verdict is supported by the evidence. The conviction on Count III is affirmed.20 For the reasons stated in the panel opinion of September 10, 1974, the convictions on Counts IV, V, VI, and VII are reversed and the convictions on Counts I, II, VIII and IX are affirmed.
The court en banc has let stand the original panel decision affirming the convictions on Counts I, II, VIII and IX and reversing the convictions on Counts IV, V, VI and VII. United States v. Staszcuk, 502 F.2d 875 (7th Cir. 1974).
Count III, which the panel reversed, has now been affirmed by a majority of the en banc court. Inasmuch as the original opinion will retain viability in regard to eight counts, no purpose would be served by repeating the reasons stated therein for originally reversing Count III.
Therefore, I respectfully dissent from the en banc affirmance of Count III on the grounds set forth in 502 F.2d at 879 and would reverse that Count.
SWYGERT, Circuit Judge (dissenting).
I concur in Judge Sprecher‘s dissent. I also dissent from the court‘s opinion on another ground: the trial judge‘s handling of the voir dire examination of the prospective jurors.
Judge Stevens, writing for the majority, treats the matter in footnote 20 of his opinion. There he says that upon reviewing the record the court adheres to the original conclusion that the entire examination brought out sufficient information for peremptory challenge purposes, but that the court disapproves “the trial judge‘s refusal to inquire about the marital status of male jurors or to ascertain the employment status of their spouses.” Although the court voices its disapproval, there is no consequence. Apparently the error is chalked up as harmless. This flaw in the examination, along with others I shall mention, was not harmless error in my opinion. Certainly enough has been said by this circuit to make clear to the trial bench the necessity of an adequate voir dire examination and the danger of truncated, hurried procedures which may mitigate against the selection of unbiased, qualified jurors. United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972); United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972).
As we indicated in United States v. Lewin the voir dire examination should include questions that go beyond what may bring out information that could be the basis for a challenge for cause. It should also include questions relevant to the nature of the case and the identity of the parties that might establish the basis for an informed, intelligent peremptory challenge. Otherwise, the right to exercise challenges preemptorily would be useless. As this court said in United States v. Dellinger: “[If] this right is not to be an empty one, the defendants must, upon request, be permitted sufficient inquiry into the background and attitudes of the jurors to enable them to exercise intelligently their peremptory challenges . . . .” 472 F.2d at 368.
With these pronouncements in mind, how can it be said that information that a prospective juror has previously served as a petit or grand juror in criminal matters is not relevant background for making a peremptory challenge decision. Yet the trial judge here refused to ask the relevant question. As the defendant argues, the failure of the jurors, upon being asked, to express any reason why they could not fairly and impartially try the case might not alert them to unperceived prejudice or bias that previous jury service may have created in their minds. Cf. United States v. Martin, 507 F.2d 428 (7th Cir. 1974).
Furthermore, the refusal of the trial judge to inquire about the length of residence of the jurors at their present addresses and about their residence immediately prior thereto deprived the defendant of relevant information concerning the social background of the jurors.
Finally, the trial judge did not ask a question concerning a highly relevant aspect of the jurors’ possible experience with zoning matters. He did frame the following question to them:
Now we are going to see if we can find out whether any of you have ever
had any property in which there was some discussion, or maybe more than a discussion, in regard to changing the zoning regulations in regard to this property, and again I see no hands raised, so I am assuming that none of you have ever had property where you had any desire to have the zoning changed.
But more should have been asked. Inquiry should have been made, as defendant requested, as to whether any of the jurors had ever resisted or taken a “position” with respect to any proposed zoning change. Some juror may have had experience, good or bad, with a zoning request that did not affect his real estate directly but did affect indirectly his interests either as an adjacent property owner or a nearby resident. Such information could have been the basis for a peremptory challenge.
A meaningful opportunity for the defendant to exercise his right to peremptory challenges was thus thwarted by the trial judge. The Government argues in its brief:
In this case, as in all cases, the voir dire could have been more elaborate and penetrating. But if the overcrowded criminal docket in this jurisdiction is not to buckle under its own weight, a trial judge who, on the facts presented, does not impinge upon the essential demands of fairness must be accorded leeway in determining when the voir dire has produced a fair jury capable of just judgment.
In the first place there was an impingement upon the essential demands of fairness. Secondly, overcrowded criminal dockets are no excuse for such impingement. Given an overcrowded docket, other means could have been utilized to accommodate the need to save time and yet afford fairness. For example, a questionnaire, formulated at a pretrial conference, which would have covered most if not all the relevant questions, could have been furnished the prospective jurors before they were called into the courtroom. Regardless of such suggested solutions, shortcut procedures, as here, do not comport with fair trials. I would reverse and remand for a new trial.
PELL, Circuit Judge (dissenting).
Count Three of the indictment charged that Casimir Staszcuk “did obstruct, delay and affect commerce” . . . “by means of extortion” in violation of
The net effect of the majority decision is to construe the statute to read: “Whoever in any way or degree potentially obstructs, delays, or affects commerce, even though he does not actually obstruct, delay, or affect commerce . . .”
The majority despite its scholarly consideration of what it deems Congress probably intended as the scope of its exercise of constitutional power to regulate commerce, ignores that which Congress did in fact enact. In the recent case of Burns v. Alcala, 420 U.S. 575, 580, 95 S.Ct. 1180, 1184, 43 L.Ed.2d 469 (1975), the Supreme Court referred to the “axiom that words used in a statute are to be given their ordinary meaning in the absence of persuasive reasons to the contrary.” The ordinary meanings of the jurisdictional words, “obstruct, delay,
The portion of the statute which would reach nearest to the applicability point here is “affect commerce.” That phrase is not a stranger to other legislation, thus, in the National Labor Rela-
tions Act we find the Board being empowered “to prevent any person from engaging in any unfair labor practice affecting commerce.”
The use of the word “affect” in the analogous NLRA situation and recognition that Congress intended to indicate the fullest employment of its commerce power authority is discussed in the en banc opinion in National Labor Relations Board v. Suburban Lumber Co., 121 F.2d 829, 831-32 (3d Cir. 1941), cert. denied, 314 U.S. 693, 62 S.Ct. 364, 86 L.Ed. 554:
“The National Labor Relations Act uses what have been described as words of art to indicate the fullest employment of this Congressional authority. The selection of the word ‘affect’ is of recent origin. Although it appears in the language of some of the earlier Supreme Court opinions, it only found its way into relatively new legislation, and so is not present in such statutes as the Federal Trade Commission, the old Employers’ Liability Act, and the Sherman Act. They qualify interstate commerce with such words as ‘in‘, ‘engage in’ or ‘restraint‘, whereas such modern statutes as the National Labor Relations Act, the Bituminous Coal Act, and the new Employers’ Liability Act, prefer the more vehement ‘affect‘. That the word has the widest conceivable scope is apparent both from its dictionary definition and its judicial interpretation. The dictionary says: ‘To act upon; produce an effect on; touch‘, and the cases are equally unanimous in emphasizing this inclusive character and so hold it to mean ‘acting upon‘, ‘working a change in’ or ‘concerning‘.” (Footnotes omitted.)
That there must be some effect on commerce even though small would appear to be the underlying premise of the Supreme Court‘s position on the National
“The power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small. Hanley v. Kansas City Southern Ry. Co., supra [187 U.S. 617, 619, 23 S.Ct. 214, 47 L.Ed. 333]. The exercise of Congressional power under the Sherman Act,
15 U.S.C.A. §§ 1-7 , 15 note, the Clayton Act, 38 Stat. 730, the Federal Trade Commission Act,15 U.S.C.A. § 41 et seq., or the National Motor Vehicle Theft Act,18 U.S.C.A. § 408 , has never been thought to be constitutionally restricted because in any particular case the volume of the commerce affected may be small. The amount of the commerce regulated is of special significance only to the extent that Congress may be taken to have excluded commerce of small volume from the operation of its regulatory measure by express provision or fair implication.“The language of the National Labor Relations Act seems to make it plain that Congress has set no restrictions upon the jurisdiction of the Board to be determined or fixed exclusively by reference to the volume of interstate commerce involved. Section 2(6) defines commerce as ‘trade, traffic, commerce, transportation, or communication among the several States,’ without reference to its volume, and declares in subsection (7) that ‘The term “affecting commerce” means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.’ Section 10(a) confers on the Board authority ‘to prevent any person from engaging in any unfair labor practice (listed in section 158) affecting commerce.’
“The Act on its face thus evidences the intention of Congress to exercise whatever power is constitutionally given to it to regulate commerce by the adoption of measures for the prevention or control of certain specified acts—unfair labor practices—which provoke or tend to provoke strikes or labor disturbances affecting interstate commerce. Given the other needful conditions, commerce may be affected in the same manner and to the same extent in proportion to its volume, whether it be great or small. Examining the Act in the light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis.” National Labor Relations Board v. Fainblatt, 306 U.S. 601, 606-607, 59 S.Ct. 668, 671-672, 83 L.Ed. 1014 (1939).2
Here the question is not great or small; it is, putting it very simply, some or none. In the language of Fainblatt, I can perceive no basis for inferring an
The Government in arguing that potential effect on interstate commerce is sufficient relies on United States v. Pranno, 385 F.2d 387 (7th Cir. 1967), cert. denied, 390 U.S. 944, 88 S.Ct. 1028, 19 L.Ed.2d 1132; United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745; United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970); Hulahan v. United States, 214 F.2d 441 (8th Cir. 1954), cert. denied, 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 675, and United States v. Augello, 451 F.2d 1167 (2d Cir. 1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802.
While language in these cases might suggest potential effect was sufficient, the language does not appear to have been necessary to the courts’ holdings, although, of course, for the reasons I have indicated herein, to the extent that it was necessary to a holding I believe it incorrect. In Pranno, the defendants told the victim that a building permit would not be issued unless the victim paid them $20,000. Apparently some building material from other states had already been brought into Illinois at the time of the extortion. This court held that there was sufficient connection with interstate commerce. “Withholding the building permit would delay construction and the beginning of production. The interstate movement of building materials, raw materials, and finished goods would be correspondingly delayed. . . . The statute seems to be read as not only prohibiting the obstruction of commerce by extortion, but also prohibiting extortion by any threat, the carrying out of
which would obstruct commerce.” 385 F.2d at 389. The extortion money was paid so that the interstate movement of the goods, in fact, continued.
In Hyde, the defendants, including the Attorney General of Alabama, conspired to extort payments from life insurance companies and small loan companies. On appeal, the defendants argued that some of the companies were not engaged in interstate commerce at the time of the extortion. The Fifth Circuit held that the Hobbs Act nevertheless applied: “The companies were formed, and registration for a stock sale was sought, with a stated purpose of going into the activities that support a finding of interstate commerce. Neither the statute nor the Constitution requires that the company be engaged in an interstate transaction at the moment of the extortion to support federal jurisdiction.” 448 F.2d at 836. All of the companies did eventually engage in interstate commerce.
In Tropiano, the defendants, who were engaged in the rubbish collection business, threatened other persons who were involved in the same business with violence if they did not stop soliciting business in the city in which the defendants operated. The victim eventually agreed not to solicit any of the defendants’ customers or any further business in the city. At the time of the threats, the victim employed trucks and containers which were manufactured in another state. The Second Circuit held that there was sufficient connection with interstate commerce for the Hobbs Act: “[The victim‘s] surrender of his right to solicit additional customers in Milford automatically limited his future orders for receptacles for new customers and the trucks required to serve such customers.” 418 F.2d at 1076.
In Hulahan, the defendant, a representative of a local labor union, attempted to extort and extorted money from three construction companies by threats of labor trouble. Two of the companies were dependent, for the continuation of the work undertaken by them, upon
In Augello, the Second Circuit held there was sufficient nexus with interstate commerce since the depletion of the victim‘s resources, due to the extortion payments, affected the victim‘s purchase of goods from interstate commerce. The evidence indicated that the victim purchased supplies from another state at the time of the extortion.
In sum, this court is squarely holding in a case, really of first impression, that the Hobbs Act has eliminated the necessity of actual effect on interstate commerce so long as it reasonably appeared at the time of the extortion that there would be such effect. I cannot agree that Congress intended such an extension.3
Although I did approve of and concur in the opinion of the panel of this court when the case was first heard, since the matter has been before the court for reconsideration via the en banc route, I have reexamined the matter of the voir dire on the basis of the record and in the light of Judge Swygert‘s dissenting opinion. I am persuaded that the curtailment of sufficient opportunity to deter-
mine a proper basis for the selection of a jury was substantial enough to deny the appellant a fair trial. I therefore join in the dissent of Judge Swygert.
Richard RHOADS et al., Plaintiffs-Appellees, v. J. Benjamin McFERRAN, Individually and as Director of Personnel for the New York State Department of Social Services, and Sidney Houben, Individually and as head of the Bureau of Disability Determinations, New York State Department of Social Services, Defendants-Appellants.
Nos. 801, 802, Dockets 74-2605, 75-7088.
United States Court of Appeals, Second Circuit.
Argued April 2, 1975.
Decided May 30, 1975.
which there is no question. Most frequently it is found for understandable reasons that the amount received has not been reported on income tax returns, thereby presenting a tax evasion case. Also, the Hobbs Act defendant may not have confined himself to one act of extortion but may have engaged in several other such acts as to which there was no question of effect on commerce. This aspect, of course, is not persuasive if the prosecutorial effort is to demonstrate by “throwing the book” that the defendant is guilty of multiple crimes.
Notes
The de minimis concept, which by definition would seem to require some effect and which would likewise appear to preclude a jurisdictional basis of no effect at all, was given consideration by this court in the case of Community Currency Exchange, Inc. v. National Labor Relations Board, 471 F.2d 39, 41-42 (7th Cir. 1972):“(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 violence 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—
* * * * * *
(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 all . . . commerce over which the United States has jurisdiction.”
“It is true, however, as the company urges here, that the Board‘s broad jurisdiction is limited by the de minimis doctrine. The de minimis concept, as enunciated in NLRB v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 83 L.Ed. 1014 (1939), operates to deny federal jurisdiction where a business‘s effect on commerce is so negligible that for jurisdictional purposes the enterprise is considered purely local. Although the concept is not susceptible to a mechanical application based upon a business volume formula, the Third Circuit has held that ‘de minimis in the law has always been taken to mean trifles—matters of few dollars or less.’ NLRB v. Suburban Lumber Co., 121 F.2d 829, 832 (3d Cir. 1941). We adopted that reasoning in NLRB v. Aurora City Lines, Inc., 299 F.2d 229, 231 (7th Cir. 1962). We do not deem the exchanges’ effect on commerce trifling, either from the standpoint of dollar amount or business impact.”
While perhaps not dispositive of the legal issue presented by Count Three, two collateral policy reasons suggest themselves for the view of the lack of necessity for straining to find that Congress did extend itself to the extent that the majority opinion finds it did.“On or about December 8, 1970, at Chicago, in the Northern District of Illinois, Eastern Division,
CASIMIR STASZCUK,
the defendant, knowingly, wilfully and unlawfully did obstruct, delay and affect commerce, as defined by Section 1951(b)(3) of Title 18 of the United States Code, by means of extortion. More specifically, defendant, a public official, obtained property not due either him or his office, in the form of $3,000., paid partly by check and partly by cash, from Al C. Allen, with his consent being induced under color of official right. This payment was made because Allen believed and feared that he would be unable to procure a zoning change on property located on Pulaski Road between 56th Place and 57th Street, in the Thirteenth Ward of Chicago, unless he compensated defendant to refrain from objecting to such a change as a member of the Chicago City Council;
“In violation of Title 18, United States Code, Section 1951.”
(1) In a period of constant study of the problems presented by the overload of cases in the federal courts, and the suggested elimination of some types of jurisdiction, e. g., diversity cases, a limitation on the sweep of jurisdictional claims into local cases might be pertinent for consideration.
(2) The Hobbs Act defendant is quite frequently guilty of other federal violations as to
“It is not necessary for you to find that the defendant Staszcuk knew or intended that his actions would affect, delay or obstruct commerce or the movement of any article in commerce; it is only necessary that the natural effect of the act committed by him, whether he was conscious of it or not, would be to affect, delay or obstruct commerce.” (Tr. 585-586)
“The statute seems to be read as not only prohibiting the obstruction of commerce by extortion, but also prohibiting extortion by any threat, the carrying out of which would obstruct commerce. We have no doubt of its coverage here.” 385 F.2d at 389 (Emphasis added.)
“The jurisdictional requirement is satisfied by the existence of facts tying the proscribed conduct to the area of federal concern delineated by the statute. Federal jurisdiction always exists where the substantive offense is committed in the manner therein described, that is, when a federal officer is attacked. Where, however, there is an unfulfilled agreement to assault, it must be established whether the agreement, standing alone, constituted a sufficient threat to the safety of a federal officer so as to give rise to federal jurisdiction. If the agreement calls for an attack on an individual specifically identified, either by name or by some unique characteristic, as the putative buyers in the present case, and that specifically identified individual is in fact a federal officer, the agreement may be fairly characterized as one calling for an assault upon a federal officer, even though the parties were unaware of the victim‘s actual identity and even though they would not have agreed to the assault had they known that identity.” 420 U.S. at —, 95 S.Ct. at 1269.