UNITED STATES of America, Plaintiff-Appellee, v. Clarence McCLAIN, Defendant-Appellant.
No. 89-3087.
United States Court of Appeals, Seventh Circuit.
Decided May 28, 1991.
As Amended June 19, 1991.
934 F.2d 822
Argued Nov. 9, 1990.
Mark D. DeBofsky, DeBofsky & DeBofsky, Chicago, Ill., for defendant-appellant.
Before CUDAHY, POSNER and EASTERBROOK, Circuit Judges.
CUDAHY, Circuit Judge.
Appellant Clarence McClain was indicted, together with eight other defendants, as the result of a federal investigation into corruption in the award of a Chicago city contract. Only he and codefendant Morgan Finley chose not to plead guilty, and
I.
In 1983 the City of Chicago began to consider options for increasing city revenue. One of the methods discussed was changing its parking ticket collection system from an outdated and ineffective criminal system administered by the Cook County Circuit Court to a more expedient and successful administrative system, which would include hiring private collection agencies. Needless to say, obtaining the contract to collect the city‘s $600 million in overdue parking tickets was a lucrative prospect—so lucrative, in fact, that it attracted the attention of a private New York collection agency, Systematic Recovery Service (SRS). Setting its sights on the Chicago collection contract, SRS hired Michael Burnett, whose assignment was to “do whatever it takes” to win the contract. Tr. at 1081.
On arriving in Chicago, Burnett found and began collaborating with Clarence McClain, who, while holding no official position in city government, boasted colorfully of the power he wielded over city contract awards. Burnett needed this kind of influence, since SRS was challenged for the Chicago collection contract by Datacom, a competitor in the parking ticket collection business. Just as this collaboration with McClain was getting under way, however, Burnett‘s allegiance shifted dramatically. He was arrested in Nashville, Tennessee on federal firearms charges during the summer of 1984. To deflect these charges, Burnett informed the Federal Bureau of Investigation agents of the unfolding scheme in Chicago and agreed to continue participating in that scheme as a government informant. Thus, as SRS‘s parking ticket plan evolved, thousands of hours of conversations between Burnett and the indicted conspirators were recorded, forming the basis for this prosecution.
McClain‘s alleged involvement in the scheme consisted of several affirmative acts, as well as knowledge of, and acquiescence in, others. The government claimed that he had a hand in the development and submission of a detailed “Parking Study“—a report masquerading as an independent and impartial assessment of different cities’ parking ticket collection practices, but in reality a contrived pitch for SRS and critique of Datacom, secretly funded by SRS itself. Apparently McClain also planned and participated in the bribing of John Adams, deputy director of Chicago‘s revenue department. Adams, who was indicted but pleaded guilty before trial, was to help SRS procure the parking ticket contract. McClain was further alleged to have cheated SRS out of $20,000 by fabricating a tip that Ira Edelson, the acting revenue director of Chicago, had been bribed by Datacom and must be bought back. We will note details of these and other matters as appropriate in the analysis of the defendant‘s claims on appeal.
For his participation in the overall scheme described above, McClain was charged with conspiring to violate RICO,
II.
McClain was indicted on six counts of attempted extortion in violation of the Hobbs Act, five of which resulted in convictions. Each count charged that “Clarence McClain, defendant herein, attempted to commit extortion, as that term is used in [the Hobbs Act] ...,” and went on to describe one of six specific incidents of alleged attempted extortion. The Hobbs Act penalizes “Whoever in any way or degree obstructs, delays, or affects commerce ... by robbery or extortion or attempts or conspires so to do....”
A. The Pinkerton Instruction
Special verdict forms submitted to the jurors gave them four options for grounding a conviction of McClain on each count of attempted extortion: (1) under color of official right; (2) through wrongful use of fear of economic harm; (3) by aiding and abetting another; or (4) by being a member of a conspiracy when another member committed attempted extortion in furthering the conspiracy. The first two alternatives represent two means for carrying out attempted extortion based on the distinction drawn in the language of the act. United States v. Holzer, 816 F.2d 304, 310 (7th Cir.1987) (describing two prongs of Hobbs Act). On each of the five guilty verdicts, the jury checked only option (4): namely, that McClain conspired with another who attempted extortion. Interestingly, the jury was not instructed that the Hobbs Act itself prohibited conspiring to extort;2 rather the only conspiracy instruction alleged to support these convictions was a Pinkerton instruction. Over defense counsels’ objection,3 the jury heard the following instruction: “A conspirator is responsible for offenses committed by his fellow conspirators if he was a member of the conspiracy when the offense was commit-
McClain contends that the convictions were the result of a deficiency in the instructions, arguing under United States v. Manzella, 791 F.2d 1263, 1268 (7th Cir. 1986), that the Pinkerton instruction was far too vague and without reference to the specific complications of the jury‘s task in relation to particular charges.4 Manzella involved a conviction for possession of cocaine with intent to distribute, as well as conspiracy to possess and distribute. On appeal, we determined that, while there was ample proof of a conspiracy to possess and distribute cocaine, “the greatest weakness in the government‘s case [was] the lack of evidence that Manzella possessed cocaine,” 791 F.2d at 1266, leading us to question the substantive count. To save that conviction, the government gleaned from the record an instruction which it contended properly invoked the Pinkerton theory of liability.5 We found the instruction lacking in the particularity required to explain Pinkerton‘s vicarious liability:
The jury must be made to focus on the coconspirator‘s act, on whether it is a crime, on whether the coconspirator‘s guilt of this crime was proved beyond a reasonable doubt, and on whether it was committed in furtherance of the conspiracy in which the defendant participated.... [The instruction in this case] fails to present the Pinkerton doctrine in an intelligible form to the jury.
Id. at 1268. The defendant has a right to have his guilt determined by a jury, we concluded, not by an appellate court. Id. at 1269.
To apply Manzella to a given instruction, it is necessary to look not only at the Pinkerton instruction itself, but at the evidence supporting a particular charge and at the specific difficulties confronting a trier of fact in applying a Pinkerton theory to the evidence. Hence it is impossible to address a Manzella objection without some inquiry into the proof adduced at trial.6 When application of coconspirator liability is straightforward, a simple Pinkerton instruction may suffice. Compare United States v. Galiffa, 734 F.2d 306 (7th Cir. 1984), discussed infra. But as the proof of
According to the allegations, McClain either attempted to extort or conspired with others who attempted extortion by accepting SRS money to pay for the parking study (Counts 12 and 13); channeling payment by SRS to John Adams (Count 14); coaxing $20,000 from SRS for McClain‘s personal benefit, on the pretense of buying Ira Edelson back from Datacom‘s stable (Count 15); and accepting payment from SRS for helping it to procure the parking contract (Count 16).7 Through its responses on the special verdict forms, the jury indicated that it did not believe McClain himself attempted to commit any of the charged extortions under either prong of the Hobbs Act, but rather that others with whom McClain conspired committed these specified attempted extortions in furtherance of their conspiracy. In several of the instances, there are serious questions whether any coconspirator could have perpetrated the attempted extortion.
The theory that underlay the government‘s conspiracy charge in Count 14 was simple enough. John Adams was a public official, the deputy director of revenue for the City of Chicago. The payments from SRS to Adams, amounting to $10,000 in “loans,” were in return for his help in securing for it the parking ticket contract; McClain helped plan this bribe and carry it out. The jury might easily enough have concluded that Adams, a public official who could act “under color of official right,” extorted money from SRS in furtherance of the conspiracy. If the jury believed that McClain conspired with Adams in this scheme, it could convict McClain for Pinkerton liability on the substantive offense of attempted extortion. Due to its simplicity, Count 14 seems only to require a rather basic and uncomplicated Pinkerton instruction. Counts 12, 13, 15 and 16, on the other hand, involve legal subtleties that call into question the adequacy of the instruction on which these convictions depend.
Thus, with respect to SRS‘s supposed payment for the cost of the parking study in August 1984, five potential participants were involved. Besides McClain and Burnett, the only persons to have a connection to the two $5,000 payments described in Counts 12 and 13 were Michael Sandow (the unindicted President of SRS), Charles Knox and David Hammond (both attorneys who together undertook to assemble the study). Burnett was, of course, at all relevant times a government agent, and so was presumably incapable of participating in the conspiracy. United States v. Lively, 803 F.2d 1124, 1126 (11th Cir.1986). Michael Sandow was an officer of the victim company. Hence, while his participation in the extortion scheme was unclear, it was presumably impossible for him to be a perpetrator of extortion with whom McClain could have conspired. By the statute‘s very terms, a person from whom funds are extorted cannot be guilty of extortion as a principal. This leaves Knox and Hammond, both of whom were private citizens (and not public officials). Without resolving the question whether either of these two as a matter of law could, under the circumstances, commit extortion, it is
According to Count 15, in late October of 1984, McClain played a trick on SRS, keeping for himself the $20,000 he convinced SRS was needed to pay off Ira Edelson. Only three parties could be implicated in this act: McClain, Burnett and Sandow. Again, Burnett could not, as an informant, conspire with anyone. Sandow remains an officer of the extorted company whose role was never that of extorter. The government did not allege or prove the involvement of Ira Edelson, whose name McClain apparently used only as a means of securing the payment. Therefore, as in Counts 12 and 13, there is no evident extorter in Count 15 with whom McClain could have conspired.
In Count 16, the government charged that McClain again reaped the benefits of his relationship with SRS when he received $5,000 from Michael Burnett for his continued services in January of 1985. Those persons potentially involved in the allegations of this count were again McClain, Burnett and Sandow. The same deficiency that affects Count 15 therefore applies to Count 16. There was apparently no extorter with whom McClain might have conspired, the jury verdict notwithstanding.
With this evidentiary background in mind, we can proceed to analyze the defendant‘s Manzella challenge. The brief instruction referenced by the government was among the first in a very long list read to the jury. This purported Pinkerton instruction appeared amidst the introductory instructions that set out the broad legal principles the jury was to follow. It said, simply, “A conspirator is responsible for offenses committed by his fellow conspirators if he was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of or as a natural consequence of the conspiracy.” Tr. at 4897.8 Given the complexity of superimposing a Pinkerton theory of liability on the facts of the four allegations of attempted extortion (Counts 12, 13, 15 and 16) that we have analyzed, we think that the capsulized form of the Pinkerton charge may have seriously oversimplified the jury‘s task. The much more detailed discussion of the government‘s burden on the attempted extortion counts against McClain—eleven transcript pages and twenty-six instructions later—made no reference to the Pinkerton theory of liability, much less focused the jury‘s attention on the specific predicates to Pinkerton liability. Tr. at 4908; see also Proposed Jury Instructions Submitted by the Government—Amended 6-8-89, nos. 27, 54m, United States v. Finley, 934 F.2d 837 (7th Cir.1990) (companion case) (bound pleading vol. 9 of 10). Indeed, these counts may have presented a stronger case for a particularized Pinkerton instruction than Manzella, which required proof of a far simpler crime and did not involve a government informant with whom conspiracy is legally impossible. Without more particular guidance with respect to Counts 12, 13, 15 and 16, the jury received too little direction, leaving it to find guilt without apparently adequate foundation.
It seems apparent the district court did not have McClain‘s attempted extortion counts particularly in mind in giving the Pinkerton instruction. The instruction conference makes plain that the court allowed the instruction for application to codefendant Finley‘s unrelated (but far clearer and simpler) extortion conspiracy, and that this may account for the absence of particularity in the instruction.9 But the
The government cites to the contrary our earlier decision in United States v. Galiffa, 734 F.2d 306 (7th Cir.1984), in which we upheld a challenged Pinkerton instruction. But the instruction in Galiffa, which focused the jury‘s attention on the particular substantive crime at stake and stressed the government‘s burden in proving the elements of that crime, adequately informed the jury of its duty. Id. at 313. Additionally, Galiffa was tried together with at least four codefendants, one of whom was necessarily responsible for the substantive act if it occurred. Thus, because the trial in Galiffa clearly presented to the jury the other actors who might have committed the substantive crime, it was much easier for the jury to focus on the essentials of the substantive act, and the risk of erroneous determinations attributable to vague or confusing instructions was greatly lessened. Here, in marked contrast, the instructions did not spell out the government‘s burden in establishing McClain‘s guilt of attempted extortion under a Pinkerton theory. The Pinkerton instruction was not linked to the crime of attempted extortion or its elements. In the case before us, the complex indictment, the ubiquity of the government informant and the absence of coconspirators standing trial required that the court explain specifically and in detail how the jury should apply Pinkerton to the facts before it if Pinkerton were to be the basis of liability with respect to attempted extortion.10 Cf. United States v. Zabic, 745 F.2d 464, 474-75 (7th Cir.1984) (upholding particularized Pinkerton instruction). We must therefore reverse the convictions under Counts 12, 13, 15 and 16 because of the deficiency of the instruction as applied to those counts. We believe that Count 14 may be affirmed since application of vicarious liability in that count required far less specific and detailed instructions. It is evident that the requirements for a Pinkerton instruction vary depending on its application.
B. Private Citizens and the Hobbs Act‘s “Official Right” Prong
Extortion requires “obtaining of property ... by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
We have in our cases drawn a clear distinction between extortion through threat or putting in fear and extortion “under color of official right.” While the “fear”
The argument against this view is that persons can maintain such a vise-like grip on power, even without office, that prosecution under the “official right” prong should be permissible. But despite this argument, we think the distinction earlier drawn is supported both by the statute and the history of enforcement under the Hobbs Act. Congress made this distinction clear in the plain wording of the statute, which sets off “under color of official right” from the other means of extortion. As we have previously noted, use of the disjunctive in its recital of extortionate conduct evinces Congress’ intent to maintain the broad common-law definition of extortion when carried out by public officials. United States v. Crowley, 504 F.2d 992, 994-95 (7th Cir.1974); cf. United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969) (describing in dictum trend in legislation to broaden common law extortion proscriptions to private persons who obtain property by means of force, fear or threats). Unlike at common law, statutory extortion through threats or putting in fear could be carried out by private persons or public officials, but extortion by bribery would remain illegal only for public officials. Nor does this construction render the clause “under color of” meaningless. No one has the right, guaranteed by any office he occupies, to extort money from others. Thus to prohibit extortion merely through “official right” would have been to outlaw the impossible and to provide a seamless but absurd defense for any official who merely claims he was acting beyond the scope of his official powers. The qualifier “under color of” was required for the statute to proscribe the intended conduct.11
Under the historical practice which bears this analysis out, “influence-peddling” has become a wide-spread (albeit not universally commended) art form at both the local
As we have pointed out, McClain was actually acquitted under the “official right” prong of the statute, the jury having concluded that he was guilty only on a conspiracy theory. Nevertheless, he challenges the “official right” charge by reshaping his claim of error into an evidentiary challenge, arguing that had he not stood indicted under the “official right” prong, much unfairly prejudicial evidence admitted at trial would have been excluded. Specifically, McClain points to the numerous conversations in which he boasted of the influence he wielded over public officials, even Mayor Washington himself. These statements, he argues, were admitted only to prove the predicate authority for an “official right” conviction under the government‘s impermissible charge. As such, the statements were irrelevant for any proper purpose, and the prejudice that resulted from their admission constituted reversible error.
McClain faces a heavy burden in challenging the admission of his statements. Evidentiary decisions are for the trial judge, and we will not disturb them unless she has abused her discretion. United States v. Briscoe, 896 F.2d 1476, 1489-90 (7th Cir.), cert. denied, ——— U.S. ———, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). But even without this deference, we would agree with the trial judge‘s determination. Although we believe it improper to have charged McClain under the official right prong of the Hobbs Act, McClain points to nothing in the record which supports the claim that these statements were admitted only for proving his guilt under that prong. We agree with the government that the statements also supported another extortion theory it offered to the jury, extortion by putting in fear—specifically in this case, “fear of economic harm.” See, e.g., Balzano, 916 F.2d at 1285-86 (fear of economic harm sufficient to support Hobbs Act conviction); Holzer, 816 F.2d at 309-10 (same). Of course, even private citizens can be subject to suit under the “fear” prong of the Hobbs Act. Burke, 781 F.2d at 1244. Whatever the evidence might eventually show, McClain could have committed attempted extortion had he suggested to SRS that he could prevent its receipt of the
III.
McClain next levels a series of objections at evidentiary rulings made by the district court. Again, we review these decisions mindful of the appropriately deferential standard. Briscoe, 896 F.2d at 1490. First to be challenged is the court‘s decision to restrict the defense‘s questioning of Michael Burnett. Burnett‘s statements permeated the tapes that implicated McClain, not surprisingly because he was SRS‘s agent in charge of recruiting help to secure the parking ticket contract. The government decided not to call Burnett as a witness. Instead, it offered only Burnett‘s taped statements during conversations with McClain, and the court added a limiting instruction that the jury consider these statements only for the context they provided—“Statements by Michael Burnett on these tapes and in conversation are what the law calls hearsay.... The statements are only relevant as to what the listener says, does, or believes in response to them.” Tr. at 1881. While the district judge allowed the defendant to call Burnett as a witness and inquire into the circumstances surrounding the operation, she denied McClain the right to impeach Burnett, except insofar as Burnett‘s specific testimony might contradict prior statements, and then only to allow McClain to introduce those prior inconsistent statements. Given these restrictions, McClain decided against calling the informant. McClain complains that denying him the opportunity to impeach Burnett violated his sixth amendment right to confront the witnesses against him and conflicted with
A claim on all fours with McClain‘s sixth amendment claim has previously been rejected by this court in United States v. Davis, 890 F.2d 1373, 1379-80 (7th Cir.1989), a case not only analogous to this one but arising from the same corruption scandal. Davis, a Chicago alderman who allegedly accepted SRS bribes for helping secure the same parking contract, likewise protested that his sixth amendment rights were abridged when the judge refused him the right to impeach Burnett on cross. As in this case, Burnett was never called by the government, but his statements saturated the taped conversations with Davis. We held in Davis that the same limiting instruction as given here eliminated Burnett as a “witness” against the defendant. Hence no sixth amendment right to cross-examine applied.
Neither
McClain next challenges the admission of certain tapes for the purpose of impeaching him. While the defendant did not take the stand, he did offer tapes of exculpatory statements he made, indicating he accepted only legitimate consulting fees from SRS. Over the government‘s objection, McClain insisted that these statements be admitted for their truth. In its rebuttal case, the government then tried to impeach McClain‘s credibility, offering prior expansively exculpatory statements he made in public, which seemed to have been thoroughly deflated by the evidence presented at trial. McClain alleges error in the admission of these taped statements on both evidentiary and constitutional grounds.
In United States v. Noble, 754 F.2d 1324, 1330-32 (7th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985), this court held that the government may impeach even a non-testifying defendant if that defendant offers past exculpatory statements into evidence. The defendant in Noble offered a taped conversation with a government informant, in which he denied knowledge of any counterfeiting operations. The government then offered, to impeach the defendant, a record of his prior conviction for counterfeiting. We found that the conviction was properly admitted through
McClain‘s other evidentiary challenges arise in the tax case against him. One source of inaccuracy on McClain‘s 1984 return, according to the government, was a deduction taken for gas bills he never actually paid. The defendant stopped payment on two checks to People‘s Gas on account of the unpaid bills for two buildings he owned. McClain defended against the tax charge by arguing that his violation was not “willful“—he simply forgot that he had stopped payment on those checks. As part of its false tax return case, the government offered evidence that a representative of the gas company found illegal, unmetered gas taps leading from the company‘s gas lines into McClain‘s buildings and disconnected them. Tr. at 2240-49. McClain asserts that this proffer constituted inadmissible evidence of past crimes, wrongs or acts under
Defendant objected at the time the gas tap evidence was offered, but the district court allowed the evidence to be admitted. The government‘s explanation both to the trial judge and on appeal is that it did not introduce the evidence to prove that McClain connected the illegal taps; to the contrary, the government specifically elicited testimony that its witness had not drawn this conclusion. Rather, the government asserts that this evidence was relevant to show McClain‘s intent in filing the false tax return (a purpose which would meet the objection under
We must confess some skepticism at this string of inferences, especially the second step. Even assuming McClain knew of the taps and their discovery, why would the interruption of free gas necessarily goad McClain into canceling payment for the gas legitimately received and billed? McClain had apparently been willing to pay for this billed gas all along; because stopping payment is such a speculative response to the discovery of the taps, the causal connection drawn by the government is dubious. Thus there are plausible grounds for believing that the evidence was introduced partly in hopes of damaging McClain‘s character. Nevertheless, the trial judge accepted the government‘s explanation of its proffer, and because she treated the evidence as proof of intent, her inquiry invoked only the relevancy/prejudice balance of
Weighing relevancy against unfair prejudice is peculiarly within the province of the trial judge. United States v. Degaglia, 913 F.2d 372, 375 (7th Cir.1990); United States v. McNeese, 901 F.2d 585, 598 (7th Cir.1990). But even if we were to find any abuse of discretion in this balancing, or in finding no violation under
The second challenge to the district court‘s evidentiary tax rulings merits little discussion. In response to the charge that McClain had failed to report the $20,000 received from SRS in October or November of 1984, the defendant wanted admitted into evidence his 1985 tax return, on which
IV.
In addition to RICO conspiracy, extortion and false tax return convictions, McClain was tried and convicted for violating the mail fraud statute,
But something happened between the return of their new parking credentials and Knox and Hammond‘s subsequent submission of the study that convinced them this accolade did not belong in their document. Perhaps the two realized the worthlessness of the membership, available to anyone with one hundred ninety dollars and a completed application; perhaps they balked when they realized their coconspirator had used the U.S. mail, elevating their fraud to a federal offense. In any event the document, as it was received by the City of Chicago, made no mention of any membership in the IMPC.
This absence suggests a fundamental defect in the mail fraud conviction, namely the relationship of the mailing to the fraudulent scheme. “The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law.” Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944). Even under the lenient test established by Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 1447-50, 103 L.Ed.2d 734 (1989), the mailing before us cannot be said to have furthered the fraud attempted by the conspirators. Although Knox and Hammond apparently believed at one point that IMPC membership would enhance their credibility, they must have changed their mind: no indication of these credentials appears on the study itself.
The problem presented by this case differs from the issue common to the line of Supreme Court cases discussed in Schmuck. In each of those cases, and in Schmuck itself, the adequacy of the mailings was questioned because the schemes had arguably reached fruition before the mailings took place. In our case, the mailing was to serve some antecedent purpose in the fraudulent scheme, but that prior purpose was apparently abandoned before it even impacted on the scheme. While at the time of the mailing, the defendant believed the credentials would be used to facilitate the fraud, we do not believe that an earlier and apparently abandoned intent is sufficient. Whatever may have been the original purpose of the mailings, if their subject was never used in furtherance of the scheme, they cannot properly serve as predicates to a mail fraud conviction.
In answering this question as we do, we leave unresolved another issue raised by the defendant on appeal. The mailing on
V.
Finally, McClain challenges the length of sentence imposed for his false tax return conviction. On Count 22, filing false tax returns, the district court apparently sentenced the defendant to a five-year term of imprisonment, to run concurrently with his eight-year prison sentence for the RICO conspiracy conviction. The government concedes on appeal that the maximum sentence allowed under
VI.
McClain‘s convictions on Count 1 (conspiring to violate RICO) and Counts 4, 5 and 7 (Travel Act) are AFFIRMED. The conviction on Count 14 (Hobbs Act) is AFFIRMED. The conviction on Count 22 (filing false tax return) is AFFIRMED, but we remand for resentencing. The convictions for Counts 12, 13, 15 and 16 (Hobbs Act) and Count 24 (mail fraud) are REVERSED and REMANDED for further proceedings not inconsistent with this opinion.
EASTERBROOK, Circuit Judge, concurring.
The prosecutor charged McClain with violating the Hobbs Act by extorting money “under color of official right“. The jury acquitted him. Whether a private person can violate the Hobbs Act in the way this indictment alleged is irrelevant to the jury‘s verdict on other counts, to the sentence, and to the disposition of this appeal. I therefore do not join Part II.B of the opinion, although I join the remainder of the opinion and the judgment.
My colleagues do not pretend that their discussion of the Hobbs Act plays any role in explaining the outcome of this appeal. They seek to clarify the law rather than support a judgment. I favor clear and simple rules, but under Article III of the Constitution our authority to announce rules depends on the presence of a concrete controversy. There is none between these parties about the proper reading of the Hobbs Act. Other defendants are at loggerheads with the United States on this question; district judges disagree about the subject; but so far as McClain is concerned, this opinion is advisory. His interests are no more at stake than they would have been had the prosecutor dismissed this charge before trial.
We cannot settle the scope of the Hobbs Act; only Congress or the Supreme Court can do so. Today‘s discussion will not precipitate a decision by either body. The majority‘s analysis, being unrelated to the judgment, is also unreviewable. Dicta sometimes point the way to an inevitable outcome or adduce new arguments for the consideration of other courts. We do neither. Arguments are balanced; two of my colleagues choose sides.
Cert-proof essays leave the “losing” party, unable to obtain review from a higher tribunal, behind the eight ball. Until we produce a decision in a form subject to review by our superiors, we are just stirring the pot. The Department of Justice will continue to frame indictments in these terms; judges will continue to ponder the arguments rehearsed in the majority‘s opinion; panels of this court will consider it their duty to examine the subject anew when finally seized of a concrete controversy. Perhaps the prosecutor will reformulate the charge under