United States v. Donald Lavern Culbert
548 F.2d 1355
9th Cir.
1977
Check Treatment

*2 GOODWIN, ELY, Before CARTER Judges. Circuit

OPINION

PER CURIAM: convicted, trial, jury in a Culbert was charged in indictment two offenses an con- sisting charged One of two Count Counts. attempted an violation of bank 2113(a) (Supp.1976). 18 Count U.S.C. § obstruct, charged attempt delay, Two extortion, affect commerce violence, in physical and threats violation (1970) (hereinafter of 18 the “Act”). reverse. “Hobbs We Act” 2113(a), germane to the Section first Count, specifies, one of the elements of offense, taking or pertinent attempt presence taking person ed “from evidence prosecution’s another.” The accomplice to the effect and an that Culbert $100,000 from a bank to extort physical telephoned means of threats given to violence. instructions president drop bank’s were that he should money specified at a site then re plan the criminal turn to bank. trespassory taking contemplate did not of” the presence “from the person. president other Absent of proof of that essential element One, judgment charged fense in Count alleged in of conviction of the offense vacated. necessarily Count must be Howard, F.2d v. United States Marx, (2d 1974); Cir. (10th den., L.Ed.2d U.S. 2113(a) is not (stating that § directed the crimes extortion and toward Bell, argued, Asst. Federal Pub- Frank O. pretenses). obtaining money by false It Francisco, Defender, Cal., appel- lic for San counsel, should be that Government noted lant. argu in oral both in their written brief and candor, ment, Lockie, conceded, commendable Atty., Asst. U. S. Fran John San Norton, cisco, Cal., Atty., on Count One argued, Arthur F. Culbert’s conviction for ly should be vacated the reason above set the entire criminal federalism, forth. apart Considerations of states. legislative from the history emphasized also reasons, For distinct entirely permit cannot a conclusion that upon conviction based Count Two Congress intended to work such an extraor- indictment cannot stand. The Hobbs *3 unprecedented dinary and encroachment form, present in its is a codification of a into the sovereignty. realm state 1946 enactment which amended the so- Anti-Racketeering “Federal Act called Here, suggest the facts do not that legality 1934.” The of Culbert’s conviction extortion of the bank assets depends upon under the Hobbs Act whether related, in any way, “racketeering.” alleged proved the facts and fall within Consequently, the offensive activity fell Act, which, scope pertinent part, within the exclusive criminal provides: the state of California. way degree any Whoever in or “(a) judgments The conviction obstructs, delays, or affects commerce or REVERSED. the movement of article or commodi- commerce, ty by robbery or extortion CARTER, Judge, JAMES M. Circuit attempts do,

or con- conspires or so to or com- curring dissenting: physical mits or threatens violence to property or in furtherance of a (Rob- I concur in the reversal of Count 1 plan purpose anything or to do in viola- bery), but dissent from the reversal of tion this section shall be fined not (Extortion). Count 2 $10,000 imprisoned more than or not plain unambiguous The language of more twenty years, than or both. (18 1951) prohibits the Hobbs Act (b) As used this section— any robbery attempt or extortion or to rob ****** requisite or extort which has the effect on (2) The term ‘extortion’ means the ob- States, In Stirone v. United commerce. 361 taining property another, from with 212, 270, (1960), U.S. 80 S.Ct. 4 L.Ed.2d 252 consent, by wrongful his induced use of Supreme Court noted: force, violence, actual or threatened “The speaks Act broad lan- [Hobbs] fear, right. or under color of official guage, manifesting purpose to use all ” (Emphasis supplied.) . power Congress the constitutional has to examined, The recently Sixth Circuit punish interference with interstate com- care, legitimate scope the utmost extortion, physical merce Act. United v. Hobbs States 542 violence. The Act outlaws such interfer- ” (6th 1976). F.2d 300 Cir. The court there Id. at 215, any way degree.’ ence ‘in that, “although activity may concluded 80 S.Ct. at 272. be within the language literal of the Hobbs disagree majority, I must with the there- Act, it ‘racketeering’ must constitute to be fore, in their the Hobbs conclusion that Act of the Act.” Id. at perimeters “racketeering.” is limited to 304. A legislative review of the Act’s histo legislative Even the history of the Act reveals, ry question, without this was coverage. Representa- does not so limit its intent; thus, Congressional adopt we purpose tive Hobbs described of his bill reasoning of the Sixth Circuit’s emi way: this nently opinion. applica sensible Given grounded “This on the bedrock ble de minimis burden on interstate com bill is crime, (See principle that crime is no matter United States v. Shackel merce rule it; ford, denied, 67, (9th robbery who commits and that cert. Cir.), 494 F.2d 75 rob- 2647, bery and extortion extortion. U.S. S.Ct. 41 L.Ed.2d 237 (1974)) contrary interpretation any way degree of the Act It covers whoever in justify usurpation would federal of virtual- interferes with interstate or com- to the one in this case. See almost identical extortion.” merce Greiser, (9 v. Cong.Rec. these 1974). I we should follow believe Cir. Green, v. 350 U.S. also United States precedents. L.Ed. 494 76 S.Ct. upholding the majority states ju- to avoid narrow designed Act (amended jus- on Count “would extortion conviction Act). prior construction dicial en- usurpation virtually tify federal previously recognized the This court has the states” and jurisdiction of tire criminal In Carbo Act. reach of the Hobbs broad un- extraordinary and constitute “an would States, 314 F.2d 718 into the realm of precedented encroachment denied, 377 U.S. sovereignty.” state (1964), the court stated: L.Ed.2d 498 to which majority ignores the extent particularly the act “Undeniably [sic] for- on interstate Congress has relied by its racketeering, labor but aimed at *4 jurisdictional provide to a eign commerce Racketeering not limited. terms it is so See, g., e. basis for criminal statutes. clearly areas is included. The in other (18 2312); the Mann Act Act Dyer U.S.C. § provides fair language of the statute 2421-24); of (18 transportation U.S.C. §§ notice that extor- warning adequate and ex-convict, drug fugitive, or by firearms an long tion in area is included so as the (2), (18 922(g)(1), and or addict U.S.C. § user necessary upon effect commerce results.” long a list of (3)). Congress has enacted 314 F.2d at 732. clause.1 based on the Commerce statutes affirmed, previously This court also has “usurpation” majority’s comment of the reach of the without discussion is an “unprecedented encroachment” and least, say of a under Hobbs in view exaggeration, the conviction to many extortion from a bank statutes.2 Act for an these Transportation of strike- of aircraft or 18 U.S.C. 1231. § 1. 18 32. Destruction § U.S.C. facilities; breakers; aircraft transporting Importing or 1301. § 18 U.S.C. 33. Destruction of motor vehi- § 18 U.S.C. tickets; lottery facilities; or vehicle cles motor violat- addict or 18 U.S.C. 1407. Narcotic Importation § 42 and 43. of mam- §§ U.S.C. crossing; mals, fish; or—border birds Obscenity; events; Bribery sporting 1461-65. §§ 18 U.S.C. 224. 18 U.S.C. § importa- disorders; Transportation 1761. § 18 U.S.C. 18 U.S.C. 231. Civil § prison goods; Entry goods tion of 542. into com- § U.S.C. statements; Transportation by den- 18 U.S.C. 1821. § merce false tures; Smuggling importing 545. § U.S.C. States; (the goods Act into the United 1951 and 1952. Hobbs §§ 18 U.S.C. Smuggling goods involved); 546. into for- § 18 U.S.C. statute here countries; eign Transportation wager- 1953. § U.S.C. ing paraphernalia; 659. Thefts from interstate or § U.S.C. commerce; wrecking; Train 18 U.S.C. 1992. § by Riots; 660. officer or di- § U.S.C. Offense 2101. 18 U.S.C. § commerce; corporations engaged Breaking entering rector of 2117. carri- 18 U.S.C. § Transportation explo- facilities; 18 U.S.C. 832. § er sives, commerce; etc. in Transportation 2311-17. of sto- 18 U.S.C. §§ Marking packages 18 U.S.C. 833. contain- § property; len ing explosives; interception. seq. et Wire § 18 U.S.C. 18 U.S.C. and 837. Violation of §§ Many companion have a sec- 2. statutes I.C.C.; regulations of preemptive Congress. intent tion on lack of Transportation 18 U.S.C. 875. of demand § good example. 233 is a § 18 U.S.C. reward; for ransom or chapter “Nothing Firearms; contained in this shall be 18 U.S.C. 921 and 922. §§ part indicating as an intent on construed 1073 and 1074. Travel com- §§ U.S.C. occupy Congress the field in which prosecution giving to avoid testimo- merce to ny; chapter operate provisions to the ex- Wagering State or local laws on the same clusion of information § 18 U.S.C. matter, any provision commerce; subject of this nor shall transmitted any provi- chapter Kidnapping, invalidate be construed to 1201 and 1202. §§ 18 U.S.C. ransom; provision such is sion of State law unless case, a Act. In our scope of Hobbs interfer- jurisdiction, for basis A second It is the is involved. officer, federally insured bank un- federal function with a ence customarily of a federal institution large of federal kind equally number derlies from interfer- federal statutes protected by bankruptcy of- Examples statutes. in interstate com- engaged It is also 151-55); of- ence. (18 postal U.S.C. §§ fenses Hence, protection it warrants 1691-734); and of- merce. (18 U.S.C. §§ fenses more than an attempted extortion against involving federally insured banks fenses It is no ordinary commercial institution. (18 loan associations building and jurisdiction of federal involving great extension 2113). Together, crimes conviction on Count inter- that the extortion foreign commerce or hold interstate 2 is valid. function or officer with a federal ference federal crimes.3

encompass most is not Our court bound relied is whether question true in this case Moreover, the majority. case upon by is in- federally insured national bank an actual distinguishable. It involved commerce so as to fall is volved in interstate store. department of this of a “K-Mart” jurisdictional parameters within extended It is Federal has not been federal criminal statute. obvious (except possibly by the Hobbs banking industry vitally affects inter- extended stores. Furthermore, Act) protection department federally state commerce. federally insured national specifically comes Protection of a insured national bank thing. quite a different definition of commerce statutory *5 jur- has exclusive because the United States majority’s position results in an banking by isdiction over banks and virtue coverage by our criminal anomaly in the of Title 12 of the United Code. Con- States extortionist, if not statutes. A successful crimes gress has evidenced its concern over prosecution under the Hobbs subject against by passing specific a bank banks larceny of bank only could be convicted statute, 18 U.S.C. § 2113(b), with the threats under 18 § U.S.C. going per- unpunished. of violence Such begins: The section 2113 Bank rob- “§ subject 10-year to the maxi- son would be bery and incidental crimes." Various 2113(b), penalty under 18 U.S.C. robbery, § e. mum crimes are listed in addition under 18 20-year penalty than the rather g., attempts, entry to commit 2113(a) is used. And bank, when force stealing money property § U.S.C. unsuccessfully attempts extortion one who dealing money receiving or with the here, could not be against property, away from the property or carried stolen any federal statute. at all under bank, prosecuted rob- committing either assaults intended to Congress have (subsection I cannot believe (subsection (a)) theft bery criminal law. glaring hole in our this (b)). on the conviction Count enacting 18 I would affirm However, Congress, majority on Count agree with but specifically deal U.S.C. did not § reverse that conviction. Marx, would extortion. States denied, (10 Cir.), 416 U.S. F.2d 1179 (1973). 40 L.Ed.2d 764 every today need not decide whether

We occurring extortion interstate be commerce should included jurisdiction bases for federal 3. Additional purposes of this inconsistent with (e. g., (1) power income tax the tax crimes are any provision chapter thereof.” offenses, guns, machine tax on transfers Congress preserved state jurisdic- etc.); and maritime and territorial jurisdiction. extending while federal the area 13; 113- §§ 7 and 18 U.S.C. tion U.S.C. §§ 14).