United States v. Egidio Cerilli, in No. 78-2105. Maylan Yackovich, in No. 78-2106. John Shurina, in No. 78-2107. Ralph Buffone, in No. 78-2439

GINBOTHAM, Circuit Judges. OF THE OPINION COURT HIGGINBOTHAM, Jr., A. LEON Circuit Judge. years, recent much has attention been

paid on the national level to the methods political which parties their parti finance san activities political and which leaders choose for individuals certain high-ranking positions. This case involves the relation ship, level, on a local between the financing political parties and the choice individ uals for not-so-high-ranking certain sometimes Appellants Egi lucrative work Cerilli, Maylan Yackovich, Ralph dio Buf fone, and John Shurina have been convicted Rogers John Carroll (argued), Peter conspiring Gold for sentenced to violate the Carroll, berger, Creamer, Duffy, Carroll & Hobbs U.S.C. 19511 and sub- provides: (2) Hobbs The term “extortion” means obtain- ing property another, from his con- § Interference with commerce sent, by wrongful or induced of actual threats violence use or (a) force, violence, fear, any way degree obstructs, in Whoever threatened or or under or delays, right. or affects commerce or the color of movement official any commerce, commodity (3) article or in The term “commerce” means com- robbery attempts Columbia, conspires any or extortion or or merce within District of or do, physical Territory so to or States; commits or threatens or Possession of the United any person property any State, violence point or in further- all between commerce plan purpose Possession, anything Territory, ance of or to do or the District of Co- thereof; point violation this section shall be fined not lumbia and outside all $10,000 imprisoned more points than or not more commerce between within the same twenty years, through any place State; than or both. State such outside (b) As used this section— and all other commerce over Unit- (1) “robbery” jurisdiction. The term means the unlaw- ed States has taking obtaining personal property (c) ful or This shall section not be construed to person presence repeal, modify from the or in the of anoth- or affect section of Title er, will, against 52, 101-115, his means actual or sections 151-166 Title 29 or force, violence, inju- threatened or or fear of sections 151-188 of Title 45. ry, future, person Cerilli, Appellants immediate or his or Yackovich and Shurina property, property custody pos- together. Appellant or in his were tried Buffone’s case session, person property appellants or the of a rela- was severed from those of the other family anyone during tive or member of his or of when he ill became trial. Buffone sub- company taking sequently right jury his at the of the time his trial waived to a obtaining. stipulation government entered into a with the appellants’ participation because in a con- stantive violations that Act. We will respective judgments affirm the of sen- spiracy proved was not and because there tence. was an insufficient effect on interstate commerce.2 I. FACTS appellants employees II. IS THE COERCIVE SOLICITATION Department Pennsylvania Transporta- OF POLITICAL A CONTRIBUTIONS (PennDOT) in County, tion Westmoreland THE VIOLATION OF HOBBS ACT? occupied position Distriсt 12-5. Cerilli Appellants payments contend that Superintendent Buffone, while Yacko- were contributions. they obtained Superin- vich and were Assistant Shurina specify The indictment does what tendents. payments were used. Testimo- In order to fulfill its snow removal and ny that some of the trial established general repair road maintenance and re- payments were in the form of checks made sponsibilities, equipment PennDOT leases will political out to committees. We as- private leasing from owners. The is accom- purpose sume for the of this discussion that plished at the super- discretion of the local payments political these did constitute con- intendent and all such ap- leases must be tributions. proved by superintendent desig- or his superintendent nee. The authority has the Appellants argue since the that negotiate for up rates these leases to a “wrong Hobbs Act defines extortion as the maximum rate Department set force, ful use actual or threatened vio Highways. signed, Once a lease is lence, fear,” (emphasis supplied), if the amount of work for which a equip- lessor’s force, violence or fear is used for a lawful ment is used is also determined at the coun- purpose, wrongful the use is not and extor ty level. Appellants tion is not committed. submit political that the solicitation of contribu A number of lessors at testified trial that lawful, only protected tions is not one or more of the required defendants that Appellants the First Amendment.3 also ar payments be made as condition to the lеs- gue that color of equipment sors’ extortion “under official being used. right” is likewise restricted to situations Appellants challenge do not these basic obtaining for where they facts. Instead attack their convictions payments is unlawful. primarily on the theories that these facts do Appellants urge theory sup constitute violations of the Hobbs that and that the evidence ported Supreme was not sufficient to decision in by the Court’s Enmons, warrant conviction under the Hobbs Act U. S. v. 410 U.S. whereby testimony at the trial of the other 3. The district court committed reversible appellants appellants’ admitting co-conspirator hearsay as well as the other ob- error in jections rulings independent and motions and the court’s evidence without sufficient to, of, prior post conspiracy. at the time trial were evidence of part respect made of the record to Buf- 4. The district court committed reversible guilty by intent, specific fone. Buffone was then found error in its instructions on property attempt. district court and was sentenced. We have fear of loss of granted appeal his motion to consolidate his 5. The district court abused its discretion in appellants. with those of the other denying response He has a continuance adopted appendix the briefs and on behalf hospitalization. filed Cerilli’s mid-trial appellants. of the other arguments We have considered these they conclude are without merit. Appellants argue: also relationship here 3. The the solicitation between 1. Thе failure of the evidence to establish rights protected by and the the First Amend- payors that the were motivated fear of claim, appellants’ ment is also the basis of economic loss warrants reversal. infra, against them discussed that the evidence 2. The failure of the evidence Counts 6 closely attempt must be scrutinized most and 12 to establish an warrants juris. doctrine of strictissimi reversal. stating case, quite explicit its In that Court

35 L.Ed.2d the Hobbs Act as a reluctance to construe members and charged indictment certain regulating strike actions: method of committing unions with officials labor require statutory language would against [I]t violence and destruction acts of explicit than that before us much more of the Gulf Utilities Com- property States to the conclusion that Con- here to lead against that in the course of a strike pany gress put intended to the Federal Govern- company company in order to force policing ment in the business of the or- higher agree providing to a contract derly of strikes. Neither the lan- conduct wages and other benefits. Court stat- legislative nor its guage of the Hobbs Act “wrongful” in the Hobbs ed that as used history justify the conclusion can coverage to those Act “limits the statute’s such an extra- Congress to work intended obtaining prop- instances where the of the labor law or ordinary change in federal ‘wrongful’ because the erty would itself be incursion into the unprecedented such an alleged no lawfúl claim to extortionist has of the jurisdiction criminal States. at at property.” at 1015. concluded that 1009-1010. The Court question We are confronted with the thus legiti- “to achieve where violence is used here whether the contributions objectives . . there has mate union wage pay- to the sufficiently are similar ‘wrongful’ taking employer’s been no bring in Enmons to this case within ments he property; paid he has services precedential We conclude Enmons’ orbit. for, receive the bargained and the workers they not. compen- wages they to which are entitled in agreement is bargaining collective Once a Id. sation for their services.” reached, impossible to deter- generally it is re- reaching In this conclusion the Court benefits, any, if portion mine what history of the heavily legislative lied on the Thus the are the result of violent action. Act. 2 of the Anti-Racket- Hobbs Section properly conclude Court in Enmons could 1934, 979, eering Act 48 while simi- Stat. a “lawful the defendants there had excep- lar to the Hobbs contained It is wages they received. claim” to wages by an em- payment tion for the record, however, clear from this of this ployer employee. to an On basis were, if not to- in substantial contributions 807, language, v. Local the Court U. S. measure, extor- appellants’ a result of tal 521, 642, 86 L.Ed. 1004 315 U.S. 62 S.Ct. Thus, although the solicita- tionate actions. (1942) City held that a scheme New York not inher- political contributions is tion of payments teamsters to coerce from out-of- “wrongful,”4 the solicitations here ently allowing town drivers and owners appel- neither the “wrongful” were in that city not violate the a any political trucks to entеr the did committee had lants nor Anti-Racketeering response, Act. Con- “lawful claim” to those contributions. Act. gress passed what became Hobbs a labor case. importantly, More Enmons is history made it clear that legislative reasoning obviously The Court’s by union the new act reached extortion to the labor context and more explicitly tied obtaining guise members “under Any ap- specifically to the strike context. quoted in wages.” Cong.Rec. 91 11900 as Enmons to cases outside plication of Enmons, 403, at 93 at U. v. S.Ct. S. with caution. Other- must be done context history also made it clear that 1011. That Enmons, if read danger wise there is thing have a the new act “does not it, effectively appellants read could as the Cong.Rec. receipt to do with strikes.” 91 of mon- world Act. The repeal the Hobbs Enmons, 410 a charitable quoted by political party, 11912 v. ey as U. S. whether generally 404, or an individual at 1012. institution U.S. 93 S.Ct. Appellants’ Appendix, p. instructed, polit- jury conduct. 4. The “Solicitation is lawful ical contributions or the sale of tickets 420 inherently law, wrongful. wrong

not tablished line of case we conclude that appellants’ Hobbs Act is the manner in which it conduct here constituted ex- regardless tortion of whether payments obtained. Thus we understand Enmons as appellants’ pockets par- went into or their relying primarily legitimacy on the ty’s coffers. objectives union’s but rather on the intent, clear Congressional expressed as Appellants argue passage that the both in legislative history Hobbs Congress 18 U.S.C. 601 indicates that did Act and the entire federal regulat- scheme type activity not view the involved here ing labor-management relations, that vio- violating 601(a) pro the Hobbs Act. § during lence punishable labor strikes not be vides: as extortion under the Hobbs Act. There is Whoever, directly indirectly, or know- no corresponding exempt intent to type ingly attempts any causes or to cause here activity from the ambit of the Act.5 person to thing make a contribution of a (including services) of value for the bene- It is person well-established that a fit any any political candidate or party, may violate the Hobbs Act without himself deprivation, means of the denial or or receiving the benefits of his coercive ac the threat of deprivation, the denial or Green, tions. See U. 350 S. U.S. of— 522, 76 S.Ct. 100 L.Ed. 494 U. v.S. (1) any employment, position, or Trotta, 525 (2d F.2d 1098 n.2 Cir. work in or for agency or other denied, cert. U.S. entity of the Government of the United (1976); U. S. v. Pro State, States, a political or a subdivi- venzano, (3d Cir.), F.2d cert. State, sion of a any compensation or denied, U.S. benefit of employment, position, such L.Ed.2d 544 U. S. v. Trotta itself work; political involved contributions and the (2) any payment pro- or benefit of a court there held fact did not alter gram States, State, of the United or a the defendant’s liability.6 criminal This State; subdivision of a Homer, court in U. S. v. F.2d 864 work, if such employment, position, 1976) com- (per curiam), pensation, payment, provided or benefit is L.Ed.2d 270 possible for made in whole or in (1977), part involved which the conviction of a Congress, an Act of shall be fined not legislator Act, state under the Hobbs stated $10,000, imprisoned more than not that evidence that the defendant delivered more than one year, or both. money he had extorted to the local party probative treasurer was not primary Congress passing concern of charge extortion and was proper therefore obviously 601 preventing § ly excluded. On the basis of this well-es- government having employees from U.S.C, Appellants suggested payments actually politi- have that 18 do that the here were § 601 contributions, evidences rely such an intent. For the rea- cal we do not on Mazzei and given infra, accept sons do not we that conten- respect point. Rosa with to this tion. believe, however, Neither do we that U. S. v. Sutter, (7th 1947), 160 F.2d 754 Cir. cited Mazzei, (3d Cir.) (in In U. S. v. 521 F.2d 639 appellants, analysis. is relevant to our In that banc), denied, 1014, 446, cert. 423 U.S. 96 S.Ct. case, defendant, employee, a federal obtain- (1975), payments 46 L.Ed.2d 385 were obtained money claiming given ed it that would be to a guise political contributions, variety of charitable causes. The court re- suggested might at trial that the defendant versed his conviction because “the evidence “pocketed money.” have zei, See U. S. v. Maz wholly fails to show defendant used F.Supp. (W.D.Pa.1975). 390 1106 extort, employment his but shows rather Likewise, Rosa, in U. S. v. 560 F.2d 149 appealing that he used causes to defraud.” Cir.) (in denied, banc), U.S. appellants clearly F.2d at 757. The here used (1977), what the de employment to extort. Therefore Sutter fendant did with the “donations” he extorted inapposite. arguen- was unclear. Since we have assumed doctrine, political make contributions in order to ob- This which literally translated means “of jobs. S.Rep.No.94- right,” tain or retain their the strictest apparently See Supreme arose out of two Court Sess., cases re- Cong., 94th reprinted 2nd viewing convictions under Smith (1976) Admin.News, Cong. p. U.S.Code & S., U.S.C. 2385. In Scales v. U. § 2883; H.R.Rep.No.94-986, Cong., 94th 2nd 1469, 1487-88, 81 S.Ct. 6 L.Ed.2d appel- Sess. It is doubtful whether the Court stated that “Smith prosecuted lants could be under this section involving they Act offenses do subtler they since obtained payments from lessors present elements than are other most not employees. clearly 601 is Section crimes, call for strict standards in assessing jurisdictionally co-extensive with the Hobbs adequacy of the proof needed to make jurisdictional Act. The basis for 601 is § illegal out a case advocacy.” The Court employment, position, work, etc. S., 290, 299-300, in Noto v. U. 367 U.S. must provided part have been at least in (1961) L.Ed.2d 836 ruled Congress. an Act of This is in contrast to the individual defendant’s criminal in- jurisdictional requirement Hobbs Act’s tent like other elements of a violation of of an effect on commerce. We conclude membership Act,8 clause of the Smith Congress’ 601 is attempt to deal with § juris, “must judged be strictissimi for other- a problem related to but not identical with wise there danger is a that one in sympathy problem at which the Act is Hobbs legitimate with the organi- aims of such an passage aimed. The 601 thus does not § zation, but not specifically intending to ac- indicate that activities such as those in violence, complish them resort to might appellants engaged pro- have are not punished for his adherence to lawful and scribed the Hobbs Act. We hold there- constitutionally protected purposes, because fore that the politi- coercive solicitation of unprotected purposes of other and which he cal contributions is within the realm of ac- necessarily does not share.” illegal tions that are under the Hobbs Act.7 applied doctrine was in U. S. v. Spock, (1st 416 F.2d 165 Cir. where ADEQUACY III. OF THE EVIDENCE defendants who had been involved in the A. Strictissimi Juris formulation and distribution of “A Call to Having relationship concluded that Illegitimate Authority,” Resist were con appellant’s between actions conspiring victed of to aid others in re process them, does not insulate as a matter fusing evading registration of service in law, of substantive from Hobbs Act liabili- ‍​​‌‌‌​‌​​​​‌​​‌​​​​​​​​​‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌‍the armed forces in violation of 50 U.S.C. ty, argument we face their this rela- 462(a). App. Partially as a result of the tionship at least affords them a measure of application doctrine, of this the convictions procedural protection. Appellants’ conten- Circuit, were vacated. The Seventh in U. tion is that “allegedly since their criminal Dellinger, (7th S. v. conduct was inextricably protect- linked to 1972), cert. political ed activity . . . doc- 1443, (1973) [t]he which involved juris trine of strictissimi requires . . . convictions under the Federal Anti-Riot highest the proof applied standard of to be Act, 2101, 2102, 18 U.S.C. described the §§ to every question of sufficiency arising at application of the doctrine in the following Brief, the Appellants’ p. trial.” terms: society, jury group, assembly persons,

7. The district court’s refusal to instruct the or of contrary is, therefore, to the knowing purposes nоt error. the thereof— $20,000 Shall be fined not more than or part, provides: 8. The Smith in relevant imprisoned twenty years, not more than or organizes helps attempts Whoever or or to both, ineligible employment and shall be for organize any society, group, assembly or of any department the United States or or persons teach, advocate, encourage who or agency thereof, years five next the follow- the overthrow or destruction such ing his conviction. government by violence; force or of, or becomes with, any or is a member or affiliates such evi- government the the agree with activity out of which group When the great deal more than dence showed can be de- develops alleged offense the aggressive fundraising. to commitment undertaking, involv- scribed a bifarious illegal purposes ing legal both and and conspiracy in a criminal “Participation conduct, of the and is within the shadow evidence; a proved by direct need not be amendment, the factual issue as to first plan may and be inferred common alleged intent must be the criminal cir ‘development and collocation of from a juris. strictissimi This is neces- judged S., v. U. cumstances’.” Glasser U.S. sary punishing partici- to one who avoid 86 L.Ed. 680 undertaking in such an and is in pates Manton, 107 F.2d quoting U. S. aims, sympathy legitimate with its 1938) denied, (2d cert. Accord, them accomplish (1940). does not intend to U. L.Ed. 1012 Schoenhut, in- Specially unlawful means. meticulous S. v. justi-

quiry sufficiency proof Cir.), into the required pos- fied and because real 58 L.Ed.2d sibility considering group activity, trial, At eleven lessors testified to social characteristic of move- appellants. demands made of them ments, imputation of an unfair of the techniques “shake-down” Although to all participants intent acts of some identical,9 pat- always the basic were not others. demanding specific appellants’ tern of amount, generally percentage based on a appel- The coercive solicitation of lease, income under re- the lessors’ type here is not “bifarious lants Particularly essentially mained constant. undertaking . the shadow . within joint evidence of persuasive action is of the first amendment” that warrants the several lessors who with testimony of dealt application juris of the strictissimi doctrine. appellants. two of the or more shadings need not sort out the We subtle Noto, Scales, Spock, intent involved in lessor, Poole, Mr. James One C. testified Dellinger. seriously We need not fear that $2,000 demanded in cash from Cerilli will chill convictions cases such as this payment him Poole made this at and that legitimate exercise of first amendment presence Cerilli’s Yackovieh. home rights. Appellants have not indicted been Ramaley testified that William he met membership political party in a nor have that, Buffone demanded dur- $700 who politi- been they personal indicted for their ing meeting, Cerilli entered the room preferences. They following cal indicted have been to him. The was introduced year for extortion. We are satisfied that contacted him Yackovieh and demand- judi- proof Ramaley traditional standards of ed amount had 5% the received fully adequate protect year. cial review are lease in the last his PennDOT rights appellants’ application without Seigfried testified that he met Walter juris. strictissimi doctrine of him, who told “I with Buffone am man, you hatchet we want 3% of what Evidence Conspiracy B. year.” argument, made last After some According appellants, evi Seigfried agreed, but determined that 3% county dence trial “showed that su earnings came to rather his than $525 perintendent of He, PennDOT and his assistants demanded. there- that Buffone $750 fundraising aggressive fore, were committed to to make sure that called Yackovieh agreement Yackovieh, Party, for the Democratic but no figure adequate. af- $525 extort, implied, express Seigfried’s whether coming ter to home and review- Brief, records, Appellants’ shown.” 39. We p. ing accepted a check for $525. his example, appellants contradictory sometimes led to de- 9. For different lessors were asked for percentages upon the same lessor. different of their income mands Also, among leases. lack of coordination “Well, replied, you I know what to determine Shurina met with Cerilli Seigfried then your put back to ... I know how much equipment would made when his worked, you I know how much work. truck something looked at made.” then Shurina that Buffone testified after Paul Caletri repeated the demand in his briefcase and superintendent had de- assistant or another agreed that he to Graham stated $470. Buffone, $125, to see but he went manded I wanted to аmount “because pay that office because into Yackovich’s was taken testimony clearly adequate work.” This complained not in. Caletri Buffone was on the sub- conviction support Shurina’s previous that he had earned $125 hold also Act count. We stantive Hobbs ledger at a year and Yackovich looked closely fits so that, this transaction had earned because how much Caletri determine already of him. de- pattern demanded into the of extortion money and when was last upon have to scribed, adequate told him that he would Yackovich it is an basis and took the matter with Cerilli jury discuss was a could find that Shurina office. After a discus- into Cerilli’s Caletri conspiracy. member of the Cerilli, pay agreed to $75. sion with Caletri explained the meeting, Yackovich At this Commerce C. Interstate by stating that Buffone demand initial $125 that all the The evidence established up,” that things all screwed but “had equipment bought fuel for their lessors had “things would be better.” following year commerce. in interstate that had travelled testimony from another also There was they of the lessors also testified Most Bidese, Mario Superintendent, Assistant supplies equipment and/or purchased had Cerilli, had and Buffone Yackovich in interstate commerce. that had travelled respect with to ob- given him instructions evidence is insuf argue that this Appellants lessors. On another taining money from meet the interstate commerce ficient occasion, him to sell Yackovich instructed Act. The Act of the Hobbs component Bidese, given tickets that Cerilli had certain degree any way “in or punishes anyone who because, not to sell them to lessors obstructs, commerce or delays, or affects Yackovich, take care of according to “we’ll commodity or article the movement during Bidese also testified that that.” ” commerce, or extortion. . by robbery meetings between and 1972 there were super- superintendent and the assistant week, every other every intendents week or Supreme has stated that Court these fundraising discussed was. Congressional purpose language manifests a Cerilli, meetings, Buffone and power all the constitutional Con- “to use at these meet- Yackovich made statements with inter- interference gress punish has to ings to the effect that “the contractors extortion, robbery commerce state coming money they like up weren’t with S., v. U. physical violence.” Stirone Republicans.” used to under the 270, 272, 4 L.Ed.2d supports the Stirone, This evidence more than proprietor of a money finding conspiracy of a to extort Pennsyl- business ready-mixed concrete participation of from the lessors and the brought sand from outside vania who Cerilli, and Buffone in this con- Yackovich victim of extortion. Pennsylvania was the spiracy. stated: The Court business been hindered Had Rider’s participa

The evidence of Shurina’s of sand destroyed, interstate movements primarily from conspiracy came tion stopped. to him would have slackened lessor, Graham, who tes PennDOT Harry to find that jury entitled trial at his called Graham tified that Shurina such a block- was saved from commerce with him. to meet home and asked Graham compliance Stirone’s age by Rider’s meeting, told Graham At this Shurina It was to illegal demands. complained, coercive and Graham he owed After $470. 424 ly depletion resulted in resources there-

free commerce from such destructive bur- passed. capacity Act to make reducing dens that the Hobbs was the lessors’ purchases supplies in inter- of fuel Id. Appellants state commerce. contend held, This court “It is not necessary has “depletion only test should of resources” the purpose of the extortion be to victim applied where the of the extortion commerce, affect interstate . . . but is itself an interstate business. only that one of the natural effects thereof anbe obstruction of that commerce.” U. S. reject being a limitation We such as Addonizio, 49, (3d 1971), v. 451 F.2d 77 Cir. Congress’ purpose use inconsistent with “to denied, 936, 949, cert. 92 405 U.S. S.Ct. 30 power Congress to all constitutional has (1972). L.Ed.2d 812 the resources “[W]here punish interference with interstate com depleted are interstate business S., merce . v. 361 . .” Stirone U. diminished ‘in manner’ extortionate 215, perceive U.S. at 80 at 272. We no S.Ct. payments, impairment the consequent of meaningful distinction between the effect ability to conduct an interstate business is on interstate commerce the Stirone situa- bring sufficient to the extortion within the tion where con- money extorted from a play Mazzei, of the Hobbs Act.” U. S. v. supplier bought crete sand who from out 642; Addonizio, F.2d 521 at U. v.S. 451 state and the here where situation fuel 77; Provenzano, at F.2d U. v. 334 S. F.2d supplies from purchased out of state. 678, denied, (3d Cir.) 692-93 cert. 379 U.S. already This extorting Court has held that 997, 440, 85 L.Ed.2d 544 (1964). S.Ct. 13 money from a owner tavern has the natural bring that is required to an extortion “[A]ll diminishing effect of ability owner’s to proof within statute of a reasonably purchase liquor originating in interstate commerce, probable effect on however min commerce and this natural effect is a suffi- imal, as result of the extortion.” U. v.S. cient basis for conviction under the Hobbs 1117, 1119 Spagnolo, (4th 1976) Cir. though even there was no of a evidence (per curiam) (footnote omitted), cert. de liquor purchases. decline in actual v. U. S. nied, 2974, 433 97 U.S. S.Ct. 53 L.Ed.2d Starks, (3d 1975).10 515 F.2d 112 Cir. U. Santoni, (1977); 1093 U. 585 S. F.2d 1969), Tropiano, S. v. 418 F.2d 1069 Cir. (4th also, 1978). Cir. U. See S. v. Naka the court held that extortion from rubbish ladski, (5th Cir.), denied, F.2d 289 cert. collection limited business that business’ 414 U.S. S.Ct. L.Ed.2d 469 ability purchase receptacles and trucks (1973); S., Carbo v. (9th U. F.2d 718 originating of state from out and that denied, cert. 84 was a on sufficient effect interstate com- (1964). L.Ed.2d “Con merce support a Hobbs Act conviction. gress was as much concerned with the Although the on interstate effect commerce impact prohibited threatened conduct proven certainly very large, here is as with its actual effect.” U. S. v. proscribe only Hobbs Act does not those Staszcuk, (7th Cir.) (in banc), F.2d 53 large extortions that have a effect on com- cert. 46 merce. adequate Because there is evidence L.Ed.2d 56 establish that there some effect

The evidence presented commerce, trial meets prop- the convictions here were these tests. payments made erly supported.11 here clear- you There beyond was a decline in the victim’s resales of these if find rea- instructions liquor. purchased sonable doubt the victim goods in interstate commerce and that above, given the district 11. For the reasons him; money then, from was extorted judge’s also correct. The instructions were law, matter of commerce was affected. is contained in the of those instructions core following excerpt: judge’s ruling The district as a matter lawof requisite that commerce was affected if the you may you jury entirely proper. find I instruct instead facts were found meaning Lowe, (3d Cir.), with the interstate commerce See U. S. v. 234 F.2d 919

425 the usual adopts attempts IV. course UNDER COLOR OF OFFICIAL give RIGHT meaning statutory to all lan- the challenge it is guage, hard to the result argues The dissent that by reached the courts.13 that, improperly court and others have held right where color extortion under of official argument that these words should charged, prove is not the one need that be, fiat, by judicial Act,” “struck from the by force, payment obtained fear or legislative on the is based Hobbs Act’s his- Kenny, duress. See U. S. F.2d tory. the Yet dissent concedes that there is (3d 1972). judge Cir. the in Since district explicit anywhere legis- no discussion jury structed the on the this cir basis of history of the “under color of lative official cuit’s regard, well-settled law in this the right” language. asserts, The dissent how- appellants’ dissent contends that the convic ever, language the statutory was in tion must be reversed. large part derived from New York’s extor- Because this was not advanced contention tion York statute that New courts have appellants the either in or their briefs sharp drawn a distinction between bribery argument, oral generally we would not con- and extortion. The cases cited the dis- Also, sider it on our own initiative. the however, point, sent on this were decided proof of in this coercion case is overwhelm- after the enactment of the 1934 statutory ing. Moreover, panel, aas we are not free predecessor to the Hobbs Act that is the to overrule the recognizes what dissent to source of the right” “under color official be the clear law of this circuit. we Since and, therefore, language these cases shed believe that has properly this circuit decided light congressional no on the purpose be- here, question the in issue we do not believe language. hind this While it is true that banc rehearing in is necessary. the New York statute defined extortion The Hobbs Act definition of color of right extortion under official rather narrow- explicitly obtaining property includes ly, prepared incorporate we not by any following: of the use of “wrongful narrow definition at this time. Before a force, fear, violence, actual or threatened language court decides that such broad right.”12 official color of Since to have a meaning, intended so constricted argues dissent col- extortion under explicit more direction must available (at or of right official least of the outside either in the form statutory of actual lan- fee) proof context of improper requires guage persuasive legislative history. We coercion, of some element essentially is Moreover, have neither here. all the circuit arguing disjunctive reading that a courts that have addressed the issue have statutory language relevant is incorrect. agreed interpretation with this court’s Ruff, upon writing Professor whose the dis- Kenny. p. See cases cited dissent at relies, heavily sent states: n.5. theories Although modern This asserting disjunc- task statutory that a construction have advanced the [of tive reading improp- Hobbs Act is significantly state of the art recent however, is complicated, neces- years, proper believe still er] we that it is for a sity arguing not unambiguous that an alternative court to construe an statute interpretation operation language according meaning to the clear of its terms legislative more consistent with the particularly where other every appellate intent, effect, language, where, so despite court has construed it and should assertions, be struck from the If one legislative Act. the dissent’s histo- denied, Ruff, Corrup 1 L.Ed.2d 56 Federal Prosecution Local (1956); Augello, tion, Georgetown U. S. v. Law Journal (1977) (emphasis supplied). supplied). 1951(b)(2) (emphasis 12. 18 U.S.C. 1, supra. The full text is set out in note here, majority is correct: contrary congressional

ry is silent as to language type to be “struck from may intent. If be used to reach Hobbs Act,” Congress, this is work for activity present involved in the ease. But I for the courts. pretend my do not to be so certain of under- standing of intent the statute V. CONCLUSION enacting prepared in it that I Congress am reasons, foregoing appellants’ For the dispense par- with assistance the to the will judgments of sentence be affirmed. is deciding ties in the issue. It a basic system judges premise legal of our ADAMS, Judge, concurring. Circuit open persuasion to and that it is the role of Judge I in by concur the result reached persuade advocate them. In the the to Higginbotham, join opinion. in his fine present appellants case the find themselves I separately write in to note that in order apparently decision turn- confronted with a light arguments of the issue raised and judgment concerning on ing legal our an dissent, by it is my advanced the was and they, rea- issue understandable view the Court should rehear this case sons,2 have not However addressed. confi- en ‍​​‌‌‌​‌​​​​‌​​‌​​​​​​​​​‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌‍banc.1 may we rightness dent be the of our point by raised the dissent conclusions, ought we not to adhere to them court, presented in the trial nor it opportuni- the affording parties without an argued panel briefed or in this Court. If a argue ty controlling to brief and a issue appeal this Court is to resolve a criminal injected was not case into the until on question, the of its to this basis answer argument. after the unwise, me, give seems at least to to fail to parties the an opportunity to it. address ALDISERT, Judge, dissenting. Circuit impor- For appellate an court decide an one, present tant matter such as sua the years It now this seven since court sponte, argument by without the benefit of case of decided seminal United States v. counsel, is, believe, I neither in the interest Kenny, (3d 462 F.2d 1205 Cir. an- parties judicial system. nor the nouncing revolutionary interpretation a the Hobbs Having my regard, noted U.S.C. 1951.1 We position in this I am stated therein a approach previ- of the view that the that Hobbs Act violation Court, ously by by public on by taken all other based extortion official need threat, courts that have question, proof considered the not include or fear duress. Operating necessary argu- Internal Procedures of the Third in be order to evaluate those Circuit, VIII. ments. parties apparently 2. The did not address provides: U.S.C. § they raised issue dissent because be- (a) any degree way Whoever in or ob- question definitively lieved the to have been structs, delays, or or affects commerce by this resolved Kenny, Court. See United States v. commodity movement of article or in 1972). (3d 462 F.2d 1205 Cir. See also commerce, by robbery or or extortion at- dissenting opinion, in cases cited Under n.5. do, tempts conspires or so to or commits or (Internal Operating the rules this Court Pro- physical any person Circuit, C), panel threatens violence to or cedures of the Third VIII property plan precedent, in furtherance of a must adhere to the Court’s or anything may only sitting do in be violation of this section overturned the Court en $10,000 Kenny binding banc. Because be more even shall fined not than or im- here —as dissent, reversal, despite advocacy prisoned twenty years, its not more than appears agree rehearing original before the both. — panel practical utility. (b) would of little If the As used in this section— arguments raised the dissent —which were Kenny not raised before the in Court —have (2) The term “extortion” means the obtain- merit, only the full re- Court can reverse that ing another, property from his con- course, Kenny controlling sult. Of if were not sent, by wrongful induced use actual or here, panel, inclined, if it were so could fear, force, violence, threatened reverse the conviction basis of the dis- right. color of official analysis, rehearing sent’s and no banc en would having cure I would our error following jury tion. no error We found color of offi- Kenny “Extortion under rule in this instruction: reexamine the full court wrongful taking by is the right cial case, a new trial because trial and order office, him or his money not due officer Kenny charge refused judge gave a accomplished taking was or not the whether point for instruction.3 Addonizio force, threats or use of fear."2 interpretation view our my It is now revolutionary I our decision as describe supported progeny its is not Kenny country’s landmark it became the because underlying legislative intent by the the Hobbs interpreting extortion under case historically nor is it accurate.4 I Hobbs Act without bene departed completely, Act and our failure to reexamine its believe that Judge Ro rehearing, in banc from fit of perpetuation of has resulted in a rationale opinion panel senn’s United only law not in this circuit erroneous Addonizio, States Seventh, Second, Fourth, Eighth First, 1971), cert. followed our Tenth Circuits which have and which, (1972), discuss 949, L.Ed.2d 812 in 30 setting reasoned elabo- without forth a lead Newark, it the ing by mayor of extortion ration for conclusions.5 of brib that “while the essenсe was stated voluntariness, of extor is the essence ery added). I. (Emphasis

tion is duress.” Addonizio, with less year deciding A after right in Addoni I believe this court was of we affirmed the page than one discussion zio, Kenny erred both in determin and public official extortion conviction of a reversing in a ing the substantive law and threat, fear, “proof of or duress.” considera- without decision without in banc panel 1096, ta, 1975), 525 F.2d 1099-1100 Cir. 2. 462 F.2d at 2167, denied, 971, 425 96 S.Ct. 48 cert. judge charged: official trial “Color of 3. The Price, (1976); 794 States v. 507 L.Ed.2d United by public right taking official is defined as the a 1349, (4th 1974); 1350 United States F.2d Cir. office, money not due him whether or of or his Staszcuk, 875, (7th 502 877-78 v. F.2d Cir. force, taking accomplished not the banc, part grounds 1974), en rev’d in on other App. The or the use of fear.” at 1255. threats denied, 837, (1975), 423 U.S. 517 F.2d 53 cert. following point appellants requested the 65, (1976); 46 United States L.Ed.2d 56 96 S.Ct. charge: right in this Statute “Color of official Brown, 364, (8th 1976); Cir. v. 540 F.2d 372 wrong- proof a the demands ful use of Government 313, Hall, States v. F.2d 320-21 United 536 is, office, public a coercive 919, denied, (10th Cir.), 97 cert. 429 U.S. oppressive use of The mere fact that a office. 313, (1976). 285 50 L.Ed.2d public held a and asked for Defendant office Cir.), (4th exception sufficient, all of money With the of Price is not there must be involved providing purpose, opinions Kenny improper fur- cited without a misuse of his office for an e., disjunc- money to obtain that office or i. not due to ther elaboration the reasons App. reading on account of it.” at 46. and of the of office” tive “use elements of Price cited no “duress” extortion. readily opportu acknowledge 1 that I had authority and stated no rationаle. nity taking my present in earlier cases stand 299, Harding, States 563 F.2d In United v. court, particularly v. of this States in United denied, (6th Cir. cert. 434 U.S. 302-07 Mazzei, banc), (3d Cir.) (in cert. 521 F.2d 639 1235, 1062, 762 98 S.Ct. 55 L.Ed.2d 1014, denied, 446, 433 U.S. 46 L.Ed.2d 96 S.Ct. length legislative Sixth Circuit discussed at joined Judge (1975), in which 385 I Gibbons’ Act, history the common law Hobbs view, dissent, that, opinion my moved an extortion, extortion and the law of offense bribery adopt, nearer the 1 now but somewhat view states, as in New York and other well vitality respected the which nevertheless Corpus Juris Secundum and Black’s Law Kenny. Frank A famous statement of Justice Dictionary reaching the conclusion that “col- provides refuge: me “Wisdom too often furter right” accompanied official need not or of by comes, reject ought and so not to never merely one “threats, analysis is force or duress.” Henslee v. Un because it comes late.” Kenny, provides no inde to that similar pendent 600, Bank, 595, 69 S.Ct. ion Planters 335 U.S. justifying intervention reason federal 290, 293, (1949) (dissenting). L.Ed. 259 93 prosecuting corruption as that in local such 386, Hathaway, States v. 534 F.2d 5. United at bar. the case 819, (1st Cir.), 429 U.S. (1976); v. Trot- 50 L.Ed.2d 79 United States said, of a Kenny, 462 F.2d at 1229. We “But Sutter reversed conviction feder private persons may while violate the stat- charged employee violating al with only ute use of fear officials prohibited, statute U.S.C. which § fear, may persons violate the act use of define, did not extortion. The court rea holding public may office also violate the no soned that because common “[t]here by wrongful taking statute under color jurisdiction law of the crimes within right.” Authority official Id. for this dis- Government,” Federal and because “Con joinder “force, violence, or feаr” and gress did see fit to define extortion in right” phrases “color official terms known law . common . 1951(b)(2) was said to be found in United common, ordinary extortion is used in its Nardello, States v. distinguished sense as from the sense in (1969); United law.” it was known at common Sut Sutter, (7th States v. ter, 1947); quoting at 756. After Web Begyn, v. F.2d State N.J. 167 A.2d Weleck, (1961); extortion, held, State N.J. ster’s court definition A.2d 759-760 statute, employee Under Federal an brought Nardello was extortion case guilty place if he uses only his office under the Travel 18 U.S.C. § fear, compulsion another force under holding that extortion the Act en- power, the undue exercise of so that compasses private acts of individuals who parts something person such of val- obtain money virtue of fear and threats. unwillingly involuntarily. ue It essentially interpreta- decision was oppressive position use of official 1952(b)(2) tion proscription of “ex- § is the essence of this offense. tortion ... violation the laws of Id. the State in which or of committed Rejecting petitioners’ United States.” con- dictum, Begyn, v. briefly State obiter blackmail, tention that their was conduct Jersey discussed extortion under stat New extortion, not statute, under Pennsylvania though ute Begyn and common law even the Court defined the federal crime of ex- had not been tried for extortion. State v. tortion: Begyn, at 167 A.2d v. 166-67, State Wel Prosecutions under the Travel Act for eck, likewise, Jersey discusses New statuto involving only pri- extortionate offenses ry and law common extortion. Neither of vate consistently individuals have been ground these be for cases should the in Although . only pri- maintained. . . terpretation a federal statute enacted involved, vate individuals are the indict- years before eases were decided. encompasses ment type activity gen-

erally as money known extortionate since might All of be to the relevant inter- was to be obtained by from victim pretation if of 18 U.S.C. it were § virtue exposure. of fear and threats incorporated assumed that the Hobbs Act give . decline to term [W]e law common definition extortion. “extortion” an unnaturally narrow read- Unfortunately, the cases the Ken- cited ing, . . . and thus that the conclude ny Indeed, court beg question. appellees acts for which been have indict- Supreme Court Nardello held that generic ed fall within the term extortion Travel Act offense of extortion was not as used in the Travel Act. equivalent to common law offense as Nardello, 295-96, supra, 393 U.S. at 89 S.Ct. did the Circuit in Seventh Sutter to 18 at Clearly, 539. was tied decision to the U.S.C. 171.6 § extortion, Travel prohibition Act and no- Begyn, A from passage brief State public where supports the notion that offi- supra, fragility shows the of its relevance to may threat, cials commit extortion without fear or duress under Kenny § conclusion: V, part

6. The dictum Sutter is discussed in infra. punishable by years a maximum of five under the com- The essence [extortion receiving taking 1952(b)(2). by imprisonment. It mon U.S.C. law] officer, office, color of his any public not make sense under the Hobbs would extortion, fee or reward not allowed law robbery prohibits only performing his duties. making punishable by twenty years both simply penalize to would seem to be imprisonment. Recognizing that the Hobbs non-innocently officer who insisted requires a distinction between behavior or a fee larger fee than he was entitled to bribery which constitutes and acts constitu- required to permitted where none was extortion, ting it is also essential I believe paid performance obliga- for the of an distinguish extortion from common law tory function of his office. The matter Congress punish the crime that intended to particular importance obviously in under the Hobbs Act. days public officials received when through compensation fees collected II. early not cases salary. fixed Our bottom, then, At we are faced with the precisely this kind of a situa- dealt interpretation of a criminal I am statute. tion. quick purely that a semantic concede Obviously, at Begyn, supra, 167 A.2d approach statutory language to the can sub- of less that common law definition was that no stantiate a decision duress need be importance when officials received proved provides: the statute because “in- salaries, many so that States “[i]n by wrongful duced use of actual or threat- statutorily has crime extortion been force, violence, fear, ened or under color expanded by private to include acts individ- right.” In an earlier official era of our property uals under which is obtained jurisprudential tradition this literal inter- force, fear, Nardello, means of or threats.” pretation might have carried. supra, 393 at 536. lamented, do 1899 Holmes “We Nardello, government’s sugges- adopted the meant; inquire legislature what the we ask Act, “Congress tion the Travel that under He only what the statute means.”7 would intended that extortion should refer complaint today, although not voice this prohibited by those acts state law which fond of contemporary courts are stating generically would be classified as extortion- starting point every in case in “[t]he ate, e., obtaining something of value i. from volving the construction of a statute is the another with his consent induced the itself,”8 methodology ap language now fear, force, wrongful use of or threats.” Id. pears abjure strictly ap to a semantic 290, 89 crimes S.Ct. at 536. Such are proach. played have with the Mischief We extortion, blackmail, called theft intimi- Rule,10 case,9 Heydon’s Rule of the Golden dation, general or are classified “under the and the Rule.11 We have dallied Literal heading against proper- of offenses directed jurisprudence with what American has 288-90, ty.” Id. at 89 at 536. 12 Meaning Rule.” called the “Plain interpretation Such an makes sense due proscription Impressive to the Travel Act’s of “extor- have warned us authorities tion, arson,” bribery, making all three depend not to too much on the actual lan 7. 8. 9. 3 Co. 10. Daniel, Adamson, 12 Harv.L.Rev. Blackburn). Holmes, International See, 7a, 439 U.S. e. g., App.Cas. Eng.Rep. River Wear Commissioners v. Theory 417, Brotherhood of Teamsters 419 637 (1899). Legal Interpretation, 764-65 99 S.Ct. (Ex. 1584). (1877) 790, 795, (Lord 11. 12. 22 J.). see Society Caminetti See, (Lord Atkinson). Hamilton v. 37 S.Ct. e. g., Compositors, 192, v. United Vacher Rathbone, 61 L.Ed. 442 L.Ed. & States, ^[1913] Sons, 175 U.S. (1917) (Day, J.); Ltd. v. London (1899) (Brown, A.C. 242 107, 419- 121- 470, important has said is as as guage of a statute. Cardozo said that not what it things are same respected, called the intended. Its words will be it is “[w]hen name, easy true, it is for the mind to slide into an but its intentions will be discovered identity is ac assumption that the verbal given equal, superior, respect. and if not by identity in all companied sequences its Very seldom we do now encounter the meaning.”13 Holmes told us: “A word is day: “If the watchwords of another words unchanged, crystal, transparent not a and it plain, meaning act, the they give to and thought may is living vary the skin a duty it privilege is neither the nor the according greatly in color to and content speculative the courts to enter fields in the time in circumstances the meaning.”19 Rather, different search is used.”14 Learned Hand said “it is one of say, we aid to construction now “When the mature surest indexes of a and devel words, meaning in the as used the stat- oped jurisprudence to make a fortress ute, available, certainly is there can be no dictionary; out ‍​​‌‌‌​‌​​​​‌​​‌​​​​​​​​​‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌‍of to the remember that use, ‘rule law’ which forbids its however always statutes have some or ob may appear ‘superficial clear words ject accomplish, ”20 sympathetic to whose longer examination.’ That we no follow imaginative discovery guide surest to rigid approach sound, semantic be- meaning."15 cause in the common law tradition a rule requires judges Current wisdom to case as- from law is never considered in vacuo. “legislative intent,” certain the some- always task The reason for the rule is con- pinpointing what to sum, akin intent of a purpose, subject sidered. disputing parties testator or of matter, context, con- legislative and the his- Proper judicial construction, tract. appear tory major aids in con- view, recognition modern requires im- sidering statutory precept today. It is to plementation of the underlying legislative legislative history of the Hobbs Act that holds, purpose; judge, theory must I now turn. accommodate the societal claims and de- purpose.16 mands reflected in To do III. this, Roger it, Traynor puts Justice we J. Judge dissenting opinion Gibbons’ “literate, need judges,17 not literal” lest a Mazzei, United States v. 651-

court make a construction within the stat- (3d Cir.) (in banc), letter, ute’s but beyond its intent.18 L.Ed.2d 385 approach This forth statutory precept legislative dem- sets history detail onstrates 1951(b)(2), a fundamental difference U.S.C. extortion section judicial process today from that aof half of the Hobbs appellants Act under which century past. Today, legislature what the summary impor- were convicted. A Traynor, Reasoning Law, Lowden v. Northwestern Nat’l Bank Trust & a Circle Co., 160, 165, 696, 699, 739, 298 U.S. (1970). 56 S.Ct. 80 Va.L.Rev. 749 (1936). L.Ed. 1114 See, Hoffman, 454, g., 422 e. Muniz v. U.S. Eisner, 418, 425, 14. Towne v. 245 U.S. 38 469, 2178, (1975); 95 S.Ct. 45 L.Ed.2d 319 Unit 158, (1918). 62 372 L.Ed. Foundation, Forman, Housing ed 421 Inc. v. 837, 848-49, 2051, U.S. 95 S.Ct. L.Ed.2d 621 44 Markham, 737, 15. Cabell v. 739 (1975); Glodgett, 707, Philbrook v. 421 U.S. aff'd, Cir.), 404, 193, 326 U.S. 66 S.Ct. 90 L.Ed. 713-14, 1893, (1975). 95 S.Ct. 44 L.Ed.2d 525 (1945). 165 States, 470, 19. Caminetti v. United 242 U.S. 16. See Train v. Colorado Public Re- Interest 490, (1917). 37 S.Ct. 61 442 L.Ed. Group, Inc., 1, 9-10, search 1938, Levi, (1976). See An also Inc., 16, CPIRG, supra 20. Train v. 426 note U.S. Legal Reasoning, Introduction to 15 U.Chi.L. 10, 96 S.Ct. at 1492. 501, (1948); Murphy, Rev. 520-23 Old Maxims "Plain-meaning Never Die: The Rule" and Stat- Interpretation utory in the "Modern" Federal Courts, (1975). 75 Colum.L.Rev. 1316-17

431 Cong., (1934). 73d 2d In Unit- Sess. will suffi- points in that discussion tant 807, the Teamsters Local Su- cient. ed States v. emphasis placed heavy preme Court in appeared first word “extortion” The Act. interpret as a the 1934 letter tool Anti-Racketeering of 194621which Act the the is contained in substance of letter The Anti-Racketeering Act of amended the paragraphs: these statute did not Although 1934.22 term, must it did what proscribe use susceptible to the original The bill was common law extor- been intended as have might its objection it include within that col- tion, is, obtaining property “under legitimate and fide bona prohibition language right.” The latter of official employers employees. and activities of change forward without has been carried legislation not to As the of the Act that whatever con- since the initial so legitimate activities interfere with such may be ascribed to gressional intention penalties up set for but rather to severe found in the records term must be violence, extortion, or racketeering by Seventy-third Congress. coercion, com- affects interstate legislative history shows Nothing in merce, definitely seems advisable it permit Act intended to the 1934 was legitimate exclude activities. such ped- to police authorities influence federal racketeering As activities typical processes of the states. dling in the affecting interstate commerce are those Indeed, legislative history there is whatever fixing eco- price in with connection contrary suggests conclusion. The professional by nomic extortion directed 73d originated in the S. Act Senate subpara- gangsters, we have inserted (1934), Cong. Cong., reprinted 2d in 78 Sess. (a) (b), making such graphs activities (1934), and contained no refer- Rec. 457-58 accompanied violence unlawful when ence to extortion “color of official affecting commerce. interstate Senate, Cong. right.” passing After (1934), Rec. 5734 was submitted re- The Act is too Sherman Antitrust House, completely it was amended where penalties stricted in its terms and a new bill substituted. reasons too make are moderate to thereunder have this amendment been described weapon prosecut- act effective Team- Supreme Court United States v. antiracketeering bill ing racketeers. sters Local jurisdiction in would the Federal extend 86 L.Ed. 1004 as follows: racketeering are acts those cases where Senate, passed After the bill had related commerce and to interstate however, representatives of the American as a concern to the Nation therefore of expressed Federation of Labor fear whole. might bill then in its form result Judge opinion pointedly referred Gibbons’ labor, injury serious and the measure Congressman to a Oliver comment Depart- officials redrafted York, during the floor debate after New ment Justice after conferences “This is committee: the bill had cleared the President the Federation. merely an extortion statute the creation of With the the term “color of House revision money against by force those who extort time. right” appeared official first engaged those interstate violence from Report, along with The House submitted Cong.Rec. commerce.” (H.R. its new version of S. took The drafters new the text of the short. In addition to right” from the New term of official “color bill, by reprinted letter written York Law of 1909 which defined of the Penal Attorney General the Chairman as Judiciary H.R.Rep. House No. crime of extortion follows: Committee. 18, 1934, 3, 1946, July 48 Stat. 979. 420. 22. Act of June ch.

21. Act of ch. 60 Stat. right” extortion “under color of official obtaining property of Extortion is the another, obtaining prop- which was a misdemeanor: from or the officer, from an erty corporation of a right Extortion under color of official thereof, his con- agent employee with parts: op divided into two turn sent, wrongful use of force by induced unlawful and ma pression, defined as the fear, right.23 of official or under color arresting licious of an individual or sei extortion, 2(b) Compare language property,75 with of the zure of his § asking, 1934 Act: as a officer’s re defined ceiving, agreeing to receive a fee in another, property Obtains the statute or when consent, excess that allowed wrongful use of his induced fear, no such fee is authorized.76 Both of these color of official force and or under misdemeanors, right; whereas the offenses were carry were felonies larceny-type offenses similarity the definitions is between ing up twenty years sentences of legislative history. consistent with Con- prison.77 Alabama, gressman sponsor of the Hobbs of app. (McKinney bill, See N.Y. Penal Law nothing § stated that “there is clearer 1967). robbery and than the definitions of extor- 76Id. § tion They in this bill. have been construed 852.[24] §Id. once, by the courts not but a thousand relationship New York Penal cop- times. The definitions in this bill are Code to the Hobbs Act definition extor- substantially.” ied from the New York Code importance in paramount tion is of con- (1945). Cong.Rec. Congressman sidering of the 1951 offense the elements § Hancock of New York stated: “The bill precepts because of two fundamental robbery contains definitions of and extor- First, statutory interpretation. it is ele- tion which follow the definitions contained is mentary that the ultimate aim to as- in the laws of the of New York.” Id. State Congress certain the intention of in the Judge up Gibbons summed the relevance of statute, intention, enactment of a New York law as follows: discovered, prevail. when “In must the in- While the meaning attributed to the statutes, terpretation the function right” term “color of official the New easily court is stated. It is to construe the legislature York and courts is no language give so effect to the as intent dispositive congressional means in- Congress.” United States v. American tent using phrase, highly per- it is Associations, 534, 542, Trucking meaning suasive both because its in New 1059, 1063, (1940). 84 L.Ed. 1345 York long has been settled and because Second, any ambiguity which exists in a legislative history indicates no inten- penal statute must be construed in favor of change tion to meaning. the defendant. Chief Justice Marshall 521 F.2d at 653. It is therefore critical to predominance stressed the of this rule over examine the New York law of extortion. other “maxims or rules for the construction IV. of statutes”: penal The rule that laws are to be con- Advice has been offered Professor Ruff, Director, strictly, perhaps strued not much less Charles P. C. former Water- gatе Force, old than construction It is Special Prosecution itself. founded New York made a on the clear distinction between ex- tenderness of the law for the individuals; “by wrongful rights tortion plain use of force or and on the fear,” punishable felony, principle, power punishment which was as a that the Ruff, amended, Corrup- 23. Penal Law of Federal § Laws Prosecution of Local Law, reprinted Study Making ch. Penal A N.Y. tion: Case of Law appendix 1967). Policy, (McKinney Georgetown Enforcement L.J. Professor Ruff is now Assistant Deputy Attorney United States. General of the

433 right color of official under judi- Extortion legislative, not in the vested implicate York schema must department. cial under the New defined, and not (1) oppression, as therein (5 Wiltberger, v. United States here, (2) extortion in Kenny or applicable in 95, (1820). 76, 5 37 The Wheat.) L.Ed. for- original law common the sense of Chief Jus Supreme Court has reaffirmed mulation, public as a officer’s ask- consistently defined Marshall’s admonition tice years, recently or’agreeing as United receive a fee through ing, receiving, as to Naftalin, -U.S.-, -, 99 States v. of in excess where no fee is authorized or 2077, (1979). our 60 624 For S.Ct. L.Ed.2d statute, (3) extortion that allowed rule for the are as purposes, reasons mon- wrongful of force fear. Unless use An as the rule itself. examina important specific misrepresen- ey is received under of these reasons demonstrates that this tion fee, public tation it is an authorized that the rule its did violence both to and court guilty of extortion official cannot when we for the broad inter opted reasons of duress. New York law absence Kenny. pretation of extortion in When a of York extor The feature New salient readings two is to be made between choice unusually law clear distinction tion is the statute, “it is appropri of a federal criminal bribery of and extor between offenses ate, harsher we choose the alterna before Diog People v. tion. This is manifested in tive, Congress should have require that 870, uardi, 260, 8 203 168 N.Y.2d N.Y.S.2d language that is clear defi spoken in bribery N.E.2d which held that 683 nite.” United States v. Universal C.I.T. “mutually were exclusive extortion 218, 222, 227, 73 Corp., Credit 344 S.Ct. U.S. charged with crimes” that a defendant 229, (1952). 260 97 L.Ed. if the acquittal extortion was entitled to congressional intent I believe that Id., jury had 8 found that he been bribed. clearly underlying Hobbs 273-74, 881-82, N.Y.2d 203 at N.Y.S.2d legislative unambiguously disclosed its that at 692. court reasoned N.E.2d only a total history. Not is there lack guilty bribery payor equally “makes congressional intent the Act specific could be the case payee, as the never apply to state and local officials coercion, extortion,” payee could the with and that the absence violence or history Congress legislative payor indicates were guilty not be of extortion if the rely York intended to on the New law (emphasis added), rely guilty bribery, id. for its of the crime. To extortion definition 909, Feld, ing App.Div. People v. defy Supreme otherwise is hold v. (1941), and on Hornstein N.Y.S.2d 796 admonition “because criminal Court’s 1003, Pictures, 996, 22 Misc.2d Paramount punishment the moral usually represents 404,412 (Sup.Ct.1942), aff’d N.Y.S.2d community, legisla condemnation 210, aff’d, App.Div. 41 N.Y.S.2d tures and not should define criminаl courts of which were N.Y. 55 N.E.2d both Bass, v. activity.” United U.S. States decided before enactment well 30 L.Ed.2d 488 holding People Hobbs Feld Act. (1971) emphasis). is said this (my It representative bribery of a labor policy embodies instinctive revulsion mutually exclusive and extortion were prison against languishing men unless crimes; essence held that “the Hornstein they clearly has said should. the lawmaker bribery voluntary giving of some is the Thus, errors com Id. one the basic we performance thing to influence the of value Kenny we on the mitted when embarked essence duty, whereas the official the mandate that journey ignore supra, 203 Dioguardi, extortion is duress.” ambiguity in a criminal “where there is 882, 168 N.E.2d at 692. N.Y.S.2d at statute, doubts are resolved in favor of the York law Although nuance of New Wrecking Adamo Co. v. Unit defendant.” interpreta- “unique as a 566, has been criticized States, ed federal restrict tion” which should Act,251 courts the Hobbs believe A fee collected under color of applying it office is (1) totally is consistent with the common does not law unlawful law autho- if — Moreover, origins for the for which congres- of the offenses. rize a fee this collected, ‍​​‌‌‌​‌​​​​‌​​‌​​​​​​​​​‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌‍(2) is fee is or a fee authorized sional New York law reliance demands an only but in amount smaller than that interpretation, that adherence to however it collected, (3) or be might a fee authorized may from the of differ law other states.

but none was due at the this fee was time For this reason Blackstone collected. Y. public defined as abuse of extortion “an Kenny justified is Our conclusion in not justice, any which consists in offiсer’s un- by any reference to the common law origins taking, office, of lawfully by colour his of the crimes of and bribery. extortion I man, money any any thing from or make this statement full with awareness him, is value that not due to or more than true common law definitions are some- due, is or before it is due.” Since a fee is what elusive. any unlawful under one the three cir- simpler wording pre- cumstances is extortion, The historical basis of a com- purposes ferred definition.27 misdemeanor, mon law the corrupt col- fee under color lection of an Against unlawful backdrop of this common law public requirement office.26 The history, important it becomes to understand Justice, unlawful fee be exactly Judge, associated the office what later Minton Sutter, by recipient held is supra, central an under- United States meant in when, standing dictum, the traditional Blackstonian in he stated that at common generally expressed definition in public broader law place “color of office took the language. force, threats, Professor Perkins advises: pressure implied or Stem, force, although Corrup specific Prosecution of Local Political ute still in remains its Unnecessary tion Under Hobbs Act: references to sheriff and coroners have been Bribery Extortion, Distinction Between and legislation. recodified other (1971). Seton Hall L.Rev. interpreting The earliest recorded decision provision the extortion of the Statute of 1969). 26. Perkins on Criminal Law ed. I Westminster arose in context of a civil Similarly, it is said that “[t]he common-law Dive, Bedfоrd, suit Lewis sheriff of misdemeanor extortion consists of the cor- against Maningham John in the amount of 40 rupt taking officer, public of a fee pounds, representing a bond for the release office, due, color of his fee is where no or not pending prisoner trial of a in the sheriffs large due, yet so is a fee fee is due.” custody. defendant, finding for the Chief Scott, W. and LaFave A. Handbook on Crimi- concluded, Mountague part, Justice (1972). emphasized nal Law 704 It is also plaintiff payment improp- the erly had demanded money property at law common he officii colore and stated: pretense obtained “under the was entitled thereto that the officer always Word sui this colore officii is [For] virtue his office.” Ill partem, signifies taken in malem an and Anderson, R. Wharton’s Law Criminal and Pro- badly done under the Countenance of an Of- cedure 790-91 fice, dissembling Visage it and bears a (footnotes omitted). Id. at 367-68 Professor Duty, properly called Extortion. As if reports: Ruff an will Officer take his more for Fees than he may The historical roots of this offense be ought, sui, yet this is done colore officii but leges repetundarum, traced to the Roman Office, is not of his Part and it is called which, B.C., beginning prohibited mag- in 171 Extortion, Robbery, which is no other than and, later, istrates profiting other officials from Robbery, but it is more odious than for Rob- positions. comparable A bery apparent, always hath the Coun- appeared England early offense as as 1275. Vice, Extortion, being equally tenance of Chapter I, 26 of the Statute Westminster great Robbery, as Viсe carries the Mask King’s Officers,” entitled “Extortion Virtue, of discerned, and is more difficult to be tried or provided Sheriff, part that “no nor other consequently more odious Officer, King’s take reward to do his Robbery. than Office, paid they but shall be Ruff, supra (footnotes note at 1179-80 King; doth, take of the and he that so shall omitted). yield much, punished twice as and shall King’s bulk Pleasure.” The of this stat- up property, his some- give victim to extortion.”28 meaning of the word ordinary force, not otherwise have thing which he would means that no statement If Thus, proved although bribery if the both threat, need be pressure done.”32 when none official fee related to charged originated as offenses officer extortion larger charged office, a fee by bribery law or required public a performance law, proper. But by provided devel- than whereas extortion crime victimless charging an im- if, the context of outside along robbery. lines of oped mandatory performance proper fee for the bribery tangent, the offenses At statement means duty, of official out of the may both arise and extortion force, or duress at prove one need not fear operative public facts. A same nucleus of wrongdoing on the prove common law to accepts corruptly an unauthor- official who official, with Pro- agree of an then I part performance of his official ized fee for the explanation is “an fessor Ruff that bribery may guilty of both and duty be common law wholly at odds with the true extreme, opposite how- еxtortion. At the That a number origins of the offense."29 ever, the offenses bear little resemblance. parroted Min- subsequently have of courts congressional references to Accordingly, legitimate not ton’s formulation30 does of extortion in a statute York’s law New uttered. illegitimate when first what was bribery proscribe did not which by repetition. is not cured Error penalties for rack- passed up “to set severe hand, mis- the common law On the other extortion, coercion,” violence, eteering bribery is an offense which demeanor of penalty, necessitate creating twenty year giver and committed both may be which includes interpretation Act a Hobbs originated as an offense recipient. It fear, or duress. A element of threat judge only committed which could be charged with extortion under public official with the adminis- person or other concerned argue able to the Hobbs Act should be in the justice but was broadened tration of something although in fact receive he did beyond to extend eighteenth century value, given at the initiative of it was has judicial officers. A bribe conduct of force, donor, a result of fear or and not as “something given for been defined as emanating from the defendant. duress influencing official improperly extortion, Thus, it is in an indictment action, accepting a giving either per- sound to logically jurisprudentially bribery.”31 bribe constitutes bribery. To hold otherwise mit a defense of between There is an obvious correlation distinction be- completely blur is to bribery the common law offenses Kenny rule has the two crimes. Our tween Nevertheless, in addition to the extortion. precisely that effect. bribe-giver and a bribe-tak- fact that both a this result for government supports the victim guilty bribery er are whereas self-serving reason. To ob- an obvious innocent, distinction of extortion is another Act, the Hobbs a conviction under tain The la- apparent. the offenses is between sentence, twenty year possible its extortion, development of the crime of ter prove “robbery or extor- must government blackmail, including occurred “in order tion,” 1951(a); bribery is not § U.S.C. robbery law cover- plug loophole Act. To establish a illegal under the Hobbs which will not do ing sundry threats a state bribery implicating equally federal case of crimes robbery. . . [B]oth official, must resort to the government threats induce require that the defendant’s Perkins, 26, supra Accord 31. note at 468-69. 28. 160 F.2d at 756. Wharton, supra, at 771-73. note Ruff, supra at 1182. 29. note Scott, supra note 32. LaFave & States, See, g., v. United e. Bianchi (8th Cir.), cert. 349 U.S. 75 S.Ct. 99 L.Ed. 1249 Thus, (1970),33 Travel 18 U.S.C. 1952 in situations where interstate prohibits bribery both and extortion. But travel or use of interstate facilities can jurisdictional the Hobbs is much base knowing use proven, or where broader than that of the Travel Act. An of them official cannot be essential element Travel Act offense demonstrated, government the federal requirement is the travel interstate political prosecute will have to local often commerce, or the use of interstate com- corruption under the Hobbs Act not at States, merce facilities. Rewis v. United all.34 But the government prosecutor fact that a Congress L.Ed.2d 493 noted that did prosecute wants “to who local cor overly application not intend broad ruption” Travel Act which alter “would sensitive finds it easier establish federal federal-state relationships, could overex- jurisdiction under the Hobbs Act than un resources, police tend limited federal possibly der the Act Travel cannot form a might produce well in situations which the obliterating reasoned basis for the distinc customers, geographic origin of a matter of separate tion of between crimes extor would happenstance, relatively transform bribery affirming tion or for the Hobbs minor state offenses into federal felonies.” public Act of convictions local officials who permitted they were not the defense that Prior to ascending the District Court prosecu were bribed. Our tolerance of this bench in Jersey, New Judge Herbert J. legerdemain juris indulgence torial is an in Stern government was the prosecutor in Kenny. prudential anarchy expense of at the basic urging an expansive meaning of extortion prosecution presumption tenets of criminal law —the public of of offi- cials under the Act, Hobbs he innocence, government’s wrote: burden in all prosecutions, and the basic maxim nullum Act, the courts have the Travel Under crimen, poena. charged nulla One with ex deliberate, knowing interstate

required tortion, carrying twenty year a Hobbs Act of similar use interstate travel or the penalty, option have should of defend illegal How- act. facilities achieve ing on the is guilty only basis that he of ever, Act been it has under the Hobbs bribery carrying Travel a if, fact, af- in the “extortion” held that year is penalty. option, five This an in my commerce, is there interstate fected view, explicitly granted by Congress. notwithstanding of the violation It is an option, unfortunately, which sub effect, have intent to absence an stantially our foreclosed in decision Kenn any anticipation or even the absence might y.35 effect result. that such an (a) foreign (as

33. Whoever travels in interstate or controlled substances in defined section any facility 102(6) commerce or uses in Act) interstate or of the Controlled Substances or commerce, foreign mail, including prostitution in- offenses in violation of the laws to— tent they of the in State which are committed or States, extortion, (2) (1) bribery, proceeds United any or distribute unlawful activity; or arson in violation or laws of State (2) any commit which crime of committed or violence to further United States. any activity; unlawful or Stern, (footnotes supra (3) note 9-11 promote, establish, manage, otherwise omitted, emphasis added). on, carry promotion, manage- or facilitate the ment, establishment, on, carrying any or activity, performs my analysis unlawful Although and thereafter or does not follow com- attempts perform any specified pletely Judge Luongo acts United States v. (1), subparagraphs (3), Kubacki, (E.D.Pa.1965), F.Supp. shall be I am $10,000 imprisoned fined not more than persuaded properly perceived that he that a years, for more thаn five or both. public charged official with extortion under the (b) As used this section “unlawful activ- Hobbs Act should be able to defend on the ity” (1) any enterprise means business in- only. guilty bribery basis that he was volving gambling, liquor Feder- on narcotics, paid, al excise tax has not been do, government may business with the

VI. of those facts prosecuted proof can be Kenny rule is its danger of our grave alone, Act has become an then the Hobbs situations embracing myriad potential of controlling extraordinary mechanism federal-state fundamental which threaten the state and local activity on political creating very real tensions and of relations opinion If the Trotta levels. ... par operations in the traditional government official that a local means is illustra raising. The case at bar ty fund soliciting a contri- extortion commits United set of circumstances. tive of one has or organization that from an bution Trotta, States agency, with his contracts might have 971, 96 imprisoned to be thereby liable (1976), illustrates an ask may one well whether There, twenty years, problem. a mu other facet of the fundraising who attends governor works was nicipal commissioner from the firm of solicits contributions demanding that a dinner and charged with a fel- present contribute to the local has committed consulting engineers businessmen judge district ony.36 Republican Committee. it did not because

dismissed the indictment bar, analogy to the case at Applying his any been adverse charge that there had to mind. The intriguing question comes or, indeed, action, actiоn, any threat of case was United States prosecutor in this for contri relationship between the demand Thornburgh who is now Attorney Richard awarded butions and contract Pennsylvania. Can it be said Governor reversed, defendant. Second Circuit Thornburgh, a man of the that Governor Kenny’s progeny, relying another guilty of principles, would be highest moral Braasch, v. United States if he now were a Hobbs Act violation (7th Cir. fundraising dinner and solicit appear at (1975), stating, party from his contributions for payment for the long as the motivation “So I think not. businessmen? Pennsylvania office, the conduct recipient’s focuses on the Kenny believes But the Circuit Second of 18 1951.” falls within the ambit U.S.C. § would such an act allow it because would Trotta, supra, 525 F.2d at 1100. deci color of office have been done under far-reaching language: sion utilizes am of duress. I requirement there is no “in- does not matter whether Trotta [I]t hypothetical case this is a quick add that his payments perform duces duties example as an set forth here and is not Nor does it perform not to his duties.” type exactly the at bar. But it is the facts payments may have been in- matter that rampant” that should of “Hobbs Act run power simply by duced assertion of banc recon- immediately checked pressure stemming position from Trotta’s Kenny rule. this court’s sideration of public official. United States as a dissent, would order a Accordingly, I 1974). Price, (4 To 507 F.2d 1349 appellants. for all new trial power it is the use of the repeat, procure pay- public office itself to money not owed to the

ments of office that constitutes

official or his alleged; adequately This was

offense. we, therefore, hold that the indict-

ment is sufficient on its face. Ruff’s ob-

525 F.2d at 1100-01. Professor holding significant:

servations on this for a public official ‍​​‌‌‌​‌​​​​‌​​‌​​​​​​​​​‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌‍who asks [I]f does, who

political contribution from one note Ruff, supra

Case Details

Case Name: United States v. Egidio Cerilli, in No. 78-2105. Maylan Yackovich, in No. 78-2106. John Shurina, in No. 78-2107. Ralph Buffone, in No. 78-2439

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 29, 1979

Citation: 603 F.2d 415

Docket Number: 78-2105 to 78-2107 and 78-2439

Court Abbreviation: 3rd Cir.