United States v. Frank Mazzei

above, stated Order the reasons For vacated and case will 705 will be

No. to the district court for remanded consistent with this proceedings

further issue mandate shall forth-

opinion.

with. America, STATES of

UNITED

Appellee, MAZZEI, Appellant.

Frank 75-1357.

No. Appeals, Court of

United States Circuit. Third 8,May banc 1975.

Argued en July 1975.

Decided 8, 1975. Denied

Certiorari Dec.

See L. Thornburgh,

Richard Atty., U. S. West, Asst. James J. U. S. Atty., for appellee. Rogers Carroll,

John Philadelphia, Pa., appellant. SEITZ, Before Judge, Chief and VAN DUSEN, ALDISERT, ADAMS, GIB- BONS, ROSENN, HUNTER, WEIS and GARTH, Judges. Circuit OPINION OF THE COURT SEITZ, Judge. Chief Frank Mazzei appeals Defendant from after a jury his conviction trial of two alleging counts extortion in violation of Act, 18 the Hobbs U.S.C. § 1951 challenge questions raises His regarding jurisdictional reach of the Hobbs Act substantive and the content of the crime which it of extortion defines. are in parties agreement basic B.M.I., Inc., a Pennsylvania facts. and the corporation victim of the alleged extortion, holding is the company of six- engage teen subsidiaries which in inter- largely relating state businesses and manufacture installation of bulk re- fractory materials used in blast furnaces. headquartered B.M.I. is building Street, Bingham Pittsburgh, Penn- title to which is sylvania, in the name of wholly-owned subsidiary, Pneumatic Corporation. Concrete Accounting serv- for B.M.I. and all its ices subsidiaries are in the building centered and services billing such of accounts are carried out receivable B.M.I. for from all its subsidiaries the office. 1971, Prior to one-half of Bingham second floor of the Street building occupied. Apart from B.M. floor, I.’s offices on the remainder of January and the whole first Kelly floor On the second submitted Leo proposal Department vacant. third floors of Proper- secretary-treasurer of ty Supplies B.M.I. lease (“Kelly”), portion of a subsidiaries, Bingham was anxious the first its floor and all Street space to reduce building the unused over- to the Bureau of lease Lotteries. The Kelly spoke with costs. Gerald executed lease was head R. received from the Creehan, bank, director of a local 23 or state on March and short- securing possibility ly thereafter inquired about the tenants. defendant of Mr. had learned that the Creehan whether Kelly Mr. Creehan fendant, de- had left an en- Pennsylvania senator, state velope for defendant at Creehan’s bank. office seeking space on request, was the South- At defendant’s Mr. Creehan re- Pittsburgh. message Defendant layed side of was re- the to Kelly, who autho- seeking a location in his portedly district rized the withdrawal and delivery to de- Pittsburgh regional $8,755, office of for the the fendant of which Kelly computed Lotteries, Bureau State to per gross new even be ten cent of the rental legislator he no though as a had statuto- B.M.I. would receive under the lease. respect to the ry power money Bureau’s The was delivered personally to leasing practices. Kelly asked Mr. late Cree- defendant in March 1972. aup meeting set with the han to defend- 1972, November December de- ant. in at stopped fendant the B.M.I. offices meeting was A held in November 1971 he Kelly to ask if was interested in leas- Kelly defendant and between at which ing space Department to the of Labor were mentioned but leases not discussed again Industry, and an executive agency The defendant later in detail. visited with which defendant had statutory and at premises, Kelly’s invitation, the 27, On 1972, connection. December de- meeting dinner was held 8, on January brought fendant officials from the 1972, leases were again where discussed Departments of Property and Supplies approximately At the generally. same and Labor to Industry view the time, premises inspected by a premises. state Other officials visited representative Department of during spring of 1973. Sometime Supplies, Property and the state authori- April 14, 1973, shortly before Kelly and for ty responsible securing office space defendant discussed proposal B.M.I.’s to agencies, for state determine their Industry the Labor and lease. Defend- suitability occupancy a lottery as of- suggested again ant the rental B.M.I. fice. propose and Kelly should informed per arrangement the same ten cent prior notice, Without defendant visited would in effect. B.M.I. submitted a 11, B.M.I. Kelly January at the office on proposal, later revised at defendant’s be- 1972, suggest rental which B.M.I. hest, receipt that led executed in its proposal should submit 20, state July lease from the on Kelly testified that at this state. meet- After defendant indicated that he had to informed ing defendant him “it was payment have his cash that same day, all state leases that a practice ten $11,300 (10%of gross delivered gross per cent of the amount of rent- rental) secretary to defendant’s at his paid to a als would be senate finance ” nearby acknowledged office. Defendant . . . re-election committee. The telephone. receipt to be in begin- cash at the payment ning appeal, challenges of the lease. Defendant On defendant pro- then his compute grounds: (1) two gross rental conviction on ceeded trans- charges on a per pad cent actions from the ten in arose page impact Kelly’s office. on which de- lacked sufficient on interstate jurisdic- rise to give fendant had made his calculations commerce to federal (2) receipt into evidence at tion over them received trial. denied, with- cert. amount money did Act. De- 30 L.Ed.2d the Hobbs United meaning of States v. Provenzano, (3rd of his 334 F.2d 678 challenges portion Cir.), cert. also fendant denied, from 379 U.S. his removal 85 S.Ct. ordered sentence power of L.Ed.2d 544 beyond the Defendant would office state distinguish these cases on the ground court. district in each there was a direct and im Commerce on Interstate Effect mediate effect on interstate commerce in enact- acknowledges that wholly lacking Defendant here. Act, intended to Congress ing has constitutional [it] all the “use Despite local character of the with interstate interference punish giving rise to lease transactions the al v. United . . .” Stirone . commerce case, leged extortion we are of 212, 215, 80 S.Ct. States, 361 U.S. depletion that the opinion B.M.I.’s contends, (1960). He 252 272, L.Ed.2d 4 jurisdictional provides assets basis un involved transactions however, that Hobbs Act for the der the maintenance upon interstate com- touch did not here this action. B.M.I. owns subsidiaries therefore, that, the Hobbs merce purchase materials in a which number of construed constitutionally be cannot Act manufacturing for use in products states his conduct. embrace to every almost sold in state. As a result actions, although that of defendant’s funds available admitted to has Defendant itself, use in such interstate interstate business B.M.I. activi does B.M.I. B.M.I. with ties have been diminished and its identify to inter “legitimate” it is must to this subsidiaries that are business extent be state cur wholly controlled its opera- Because of this effect interstate tailed. on inter in substantial engaged commerce, the fact Conceding alleged the interstate charac- state that the tions. defendant arose from a local lease enterprise, extortion to a the B.M.I. ter jurisdiction agency dispositive, is is not federal state that contends “[i]f still lease transactions in interstate commerce that feels the lacking because engaged here are it does not matter how pinch, local the B.M.I. urges applies squeeze.” that if operation He in nature. “local” Sportswear v. the lease transactions United States Women's can find we Ass’n, 460, 464, 336 U.S. 69 interstate commerce Mfrs. affected S.Ct. themselves alleged (1949). 93 L.Ed. 805 impact Although of the assess the may we context, in an enunciated antitrust interstate commerce. on extortion quoted stated in the principle language hand, on the other government, application questions broad to re has jurisdiction both federal us to find urges congressional power garding under the coverage theory Act on Hobbs See, g., clause. e. commerce Heart of to $20,000 some States, v. Motel United 379 Atlanta U.S. B.M.I. depleted the assets of defendant 85 13 L.Ed.2d 258 S.Ct. power oper- its thereby affected posi- This We therefore conclude that the commerce. in interstate ate constitutionally previous holdings may our be construed to with accords tion placed interstate the indirect burdens resources of an reach on in- where the by “in depleted or diminished terstate commerce extortionate are business alleged in this payments, extortionate activities case and that by manner” impairment ability such a construction statute ac- consequent Congressional pro- intent interstate business is suffi- cords an conduct which “in any way extortion within the scribe extortion bring the cient obstructs, delays, degree v. or affects com- Act. United States the Hobbs play (3rd 1971), 49 Cir. Addonizio, 451 F.2d merce.” 1951(a).1 18 U.S.C. United had a net cash inflow that an absence that B.M.I. entering reason of consider of effect We do Although into the leases. shown the fact B.M.I. un- commerce interstate on

643 (7th jure Met, power grant 816 Cir. tual de 486 F.2d secure v. De States denied, 94 lease so as it long 416 S.Ct. found that Kelly held, U.S. 1973), cert. exploited, United and defendant 1991, 40 L.Ed.2d reasonable (2d system 451 F.2d 1167 Cir. belief that the state Augello, operated so v. States denied, 405 in fact 1971), cert. of defendant’s (1972); cf. L.Ed.2d 802 office included effective authority to Staszcuk, 517 F.2d 53 recipients determine United States the state leases pet. (in banc) filed 1975); cert. here (7th involved. See United Cir. States v. (June 13, 1975) (juris Price, (4th 1974) F.2d U.S.L.W. Cir. (per may curiam); Hobbs Act be sat Staszcuk, United States v. diction su showing possibility pra a “realistic (adopting by isfied reference the panel transaction will opinion extortionate at 502 F.2d (7th Cir. 1974) com on interstate point). effect some Such an exploitation have in (cid:127) wrongful merce.”) volves use of official power long punished that has at common of Defendant’s Con- Nature Extortionate law as extortion “under color of duct See, g., office.” e. Commonwealth v. Wilson, 30 Pa. Super. contends that con- Defendant also 26 (1906). The is might sue duct, Kelly’s other laws it vio- belief whatever and its reasonable late, jury question ness was a not constitute within does which was sub appropriate of the Hobbs Act. The mitted under meaning instructions.2 extortion as defines statute Kelly’s belief in defendant’s power obtaining of from property anoth- over state leases in his district is amply consent, by induced er, with his by established the record. In his most of actual or threatened wrongful use succinct statement in respect, violence, fear, force, color testified: right. that thought I was the method that payments characterizes the Defendant were just state leases handled. I ac- voluntary pur- B.M.I.’s to him as made gospel. it as cepted influence in an area in of his chase no official and in power he had pretended any to he have never how it I don’t know works in Harris- He further contends that power. official . burg. . . has be that [TJhere of coercion no element there power, they influence and and were could not that therefore he and present, letting the senator do it. if he of extortion even had guilty Furthermore, we find after careful “under color official acting been light review of the record in the most government, favorable to Glasser v. States, course, clear, United that de It is (1942), L.Ed. that the evi- statutory power as had fendant granting permitted jury control dence to find that senator state in Kelly’s power agencies. executive But belief defendant’s by state leases respect reasonable. With that defendant to find acted first order in lease, were we note there right,” jury official rumors color of “under was looking he that defendant for space concluded that had ac- not have need doubtedly put portion used defendant’s influence to A court’s instruction was that position jury where itself in a the award of could be convicted if state defendant likely, point right Kelly reasonably at that had leases was found “that Leo believed that rental, full described receive the state senator’s official functions included the se- reasonable, completely curing with officials without of leases the Commonwealth $20,000 paying Pennsylvania” some to insure defendant and “that Senator Mazzei used wrongfully opportunities pow- were lost. the lease his office or used his official er.” Kelly’s specify lottery office. rental rates meetings with that would be and in December acceptable state, 1971 and to the defendant Janu- and to alter produced inspection proposal an B.M.I.’s ary an on the second lease. Also, Department throughout of the of Property the lease negotiations, though even Supplies displayed and no one defendant from to Kelly intimate anyone knowledge had contacted other B.M.I. than making decision proc- Also, defendant ess suggested defendant. involved in the granting of state propose This, B.M.I. to the view, state a leases. in rental our constituted foot, per square sufficient which he said evidence to justify a $4.25 finding rate at which a was the that Kelly recent state could reasonably Philadelphia in had have believed lease that as a awarded concomitant of highest position and the that the state ap- would possessed defendant not mere prove. representations These by the de- over state leases but suggest himself fendant fact had power intimate effective to determine leasing of state practices. awareness whom these leases were awarded even though gave his office him no such de opened negotiations defendant When jure power. to the second respect lease and brought inspect premises, officials to the Department urges, however, officials from

other Defendant Industry appeared Labor without even if he did have some to influ request personnel. leases, from B.M.I. awarding As of state ence he still lease, lottery sug- with the defendant extortion receipt did not commit in his gested proposed $20,000 rental for submission of some from B.M.I. state, per this time at acknowledges foot $4.90 He United States spaces parking provid- (3rd would be Kenny, Cir.), because 462 F.2d 1205 cert. B.M.I. did not denied, ed. When follow his rec- 409 U.S. 93 S.Ct. (1972), ommendation submitted to the state we L.Ed.2d 176 held that per foot proposal that exclud- Act is to be read disjunctively $4.35 services, janitorial defendant quickly ed an instruction that approved Kelly pro- called to advise him that the could be established either when proper at the posal higher through should be rate he the ty is obtained use of fear or janitorial and must cover suggested acting serv- under color by one Kelly defendant “put right. contends, ices. told it in 462 F.2d at 1229. He $4.90,” however, and without the submission of that a coercive use of office B.M.I., proposal by a revised the state must be established even when the pros a lease with a rate returned of ecution is based on the ground $4.90 alternate required provide B.M.I. to right,” which the ad- “color of official of and relies on Furthermore, ditional services. on two statement of this court the in Addonizio 1973, July occasions in defendant assured “while the bribery that untariness, essence of is vol that B.M.I. would secure the Labor the essence of extortion is Industry lease. One such assurance duress.” 451 F.2d at 72. We do not 18, given meeting 1973, in a on July agree with this contention because we year where defendant calculated the five that in prosecution, are satisfied such a figure, gross per rental on which the ten any element of coercion that may be re based, would be pa- cent on a to establish quired extortion under the per introduced into evidence at supplied by trial. In Act is the Hobbs misuse of computations, these defendant used a power. the defendant’s official $22,569.40, yearly rental of the rental The definition of the at the rate computed and the exact $4.90 substantially Hobbs Act is that of its in the lease by rental stated received statute, the predecessor Anti-Racketeer- days B.M.I. from the state two later. 1934, 569, 1-6, ing Act of ch. §§ Stat. Thus, however, had the ability Unfortunately, defendant to ini- legis- the inspection premises, of history tiate state the to lative of neither statute provides congressional Price, intent of supra. hint v. We States do con- not extortion, definition of oth- adopting strue Addonizio hold to contrary, by proponents of the statements er than that case was since submitted jury that the statute no more Act did only theory Hobbs on the money had been incorporate the conventional defini- through fear, than obtained use of extortion contained in New York presented tion of question here and in Ken- See, g., Cong.Rec. e. 11842 ny law. before the was not court there. Walter); (remarks Rep. id. at (1945) convinced, therefore, We are that the Michener). of Rep. (remarks justified this case evidence in finding that the by payments to defend- must, therefore, look to the We an exploitation ant induced its the statute to determine face of reasonable Kelly’s belief that defendant’s meaning. Kenny, As we noted in a state position as senator provided him right” language color of official “under control with effective over the state the common law definition of repeats involved though leases here even he extortion, a crime which could be jure authority lacked de to act in this official, and public committed consequence, sphere. we conclude threat, require proof not did consent was “in- 1229, cit- fear, or duress. 462 F.2d at . . duced . under color of official Nardello, States ing United in violation right” and of the Hobbs Act L.Ed.2d proof even without the exercise of overt coercion. definition, the common law color Under place office took the From Removal Office meaning in the implied ordinary coercion United States v. word extortion. In its sentence of April (7th 1947). F.2d 754 Sutter, 160 Cir. court district ordered defendant re support for the proposition Further moved from office as a Pennsylvania proved need not in a overt coercion state senator. On June prosecution receipt Pennsylvania Senate purported expel right” “under color of property defendant from office. Although we disjunctive wording supplied take notice of the action, Senate’s we strongly that a implies the statute reject government’s urgings that be “force, violence or fear” is showing cause of the intervening expulsion we prosecution when the required should decline to treat the question of theory based propriety of the order of removal on through wrongful exercise of obtained ground of mootness. In the first of office. place, we cannot assume that defendant the concurs in by propriety of his expulsion properly V/e conclude that Kenny Senate, the and this matter has not showing and that a of statute read the adjudicated. yet Thus, the contro of payments “under col- the inducement versy regarding right his to remain in right” may replace proof of official or of the state Senate still a live issue. In “force, of or fear” violence the coercion addition, failure to address the issue of prosecution. A violation in a Hobbs removal leave would unresolved a chal may be made out show of the statute lenged of power assertion the of a feder through the public a ing that al court to remove a state official from property of office obtains use wrongful significance office. The of the assertion office, though or his even him not due power of federal the district court in accompanied by the are not use his acts particular this context demands that we “force, or violence fear.” United of determine defendant’s challenge. Staszcuk, supra (adopting by States panel opinion the at 502 F.2d The district court purported reference to 1974) point); pursuant on this United act to a Pennsylvania Cir. (7th statute, penal nature, (Supp.1974), provides order was but which mere- 65 P.S. § enforcement of ly “judicially in a court of record upon conviction no- crimes, collateral specified consequence or other ticeable of de- of extortion holding public conviction.” simple office “shall fendant’s The any person office, im- fact Congress and the sentence unassailable forfeit his has given power the district court court shall include di- to take posed by the sentencing the removal action from office of a defendant ex- rection impose punishment government cept The person.” such contends within the although prescribed by the district court had no limits statute. The order impose any beyond power power penalty beyond of removal of by Congress for violation court. specified Act, power it did of the Hobbs have the directing The order defendant’s government what con- to enforce from separate removal office is and dis automatic strues as an forfeiture of of- of the tinct from remainder district Pennsylvania by operation fice sentence. We in a position, court’s are offers alternate theories statute. It therefore, adjudicate its invalidity (1) sustain the district court’s order: re- disturbing clearly without authorized imposed moval could as a condition of imprisonment. sentence of fines and pending appeal; (2) release the court has reason, For this we will exercise our power to the policy the inherent enforce to correct power sentence rather statute; (3) expressed in court remanding the than case the execu could take notice and enforce collat- this tion of ministerial act. consequence eral defendant’s convic- judgment of the district court will tion. by deleting portion be modified di- perceive We no basis upon recting that defendant be removed from order of the district court’s removal was of Pennsylvania the office State Senator. justified. Removal from office was in modified, judgment As thus will be as a imposed no sense condition of re affirmed. appeal, indeed, pending lease could been, since not have release after convic GIBBONS, Judge, Circuit dissenting, on the

tion is determined basis consid Judge with Circuit joining. ALDISERT of flight erations likelihood and dan case, This which is one first impres- community, ger to the 18 U.S.C. 3148 § nationally level, at the appellate sion re- not on (1970), and whether defendant us to quires explore the reach of the infringe might policy Penn Act’s proscription of extortion. remaining sylvania by in office. Nor 1951(a). particularly, U.S.C. More any authority can we find for inherent branch deals with that of § case district power in the court to enforce the 1951(b)(2) which defines “extortion” as policy Pennsylvania statute. As a another, obtaining property from “the jurisdiction, court of limited the district with consent . . . under color of possessed court act in Does the Act prohibit case Congress this criminal has in, position person having no official given Supreme statute. As the over, a control state executive branch Court has stated: department taking from in ex- of our country The law takes care political change for exercise weight that not the of a by over two that de- decisions finger upon judge’s any should fall course, majority partment? Of the does one, as except specifically authorized. not so of the is- make bald statement Bonner, 242, 259, 151 In re 14 U.S. they nominally sue. Rather choose 326, 323, (1894). 38 L.Ed. 149 S.Ct. appellant, the fact that the rely upon Mazzei, held the office of senator in the escape principle We can see no from this legislative branch. government’s that state the district by arguments court’s

647 it They ignore permitted choose to the fact that jury the evidence the to con- office, influence, not his Mazzei’s Kelly, was clude that the all-too-willing vic- the results for which accomplished tim, had a reasonable belief that Mazzei made. On this payments power had the de facto to influence the record, only I that Mazzei’s can conclude leasing state’s decisions. But I do not him to be exact- willing perceived victim any find evidence in the record suggest- power-broker. ly he was—a ing Kelly any ground what that had for be- least, position Mazzei’s Kelly’s eyes, at lieving that the 10% commission gross that of an influ- different from rentals was an official emolument of the county political senator, leader ential state or office of state nor does the ma- holding If Mazzei jority suggest no office whatsoever. that such evidence ex- by representing violated majority’s holding ists. The is found in power to that he had the de facto influ- this one sentence: department’s executive ence the state “But in order to find that defendant anyone, then processes, decisional acted ‘under color of official right,’ office, can also be whether in or out of jury need not have concluded may be a desirable convicted. This that he jure had de actual power to not, I It is sub- result —in the abstract. grant secure of the lease so long as mit, intended when it Congress what held, found that Kelly and defend- Act. enacted the Hobbs exploited, ant a reasonable belief that system state so operated Agreement and I. Areas of the power in fact of defend- Disagreement ant’s office included the effective Assuming Congress had made the con- authority to determine recipients of crime, agree duct a I the transac- state leases here involved.” alleged tion in the indictment had a suf- (Majority op. 643). at impact upon ficient interstate commerce transcript to sustain A review of the constitutionally reveals exercise of jurisdiction.1 charge federal criminal the district court did not agree, I that the as well, 1951(b)(2)’s had to find that had definition of ex- reason- system tortion should be read able belief “that the state disjunctively op- so erated that the in fact power cover either coercive extortion or of receipt defend- money ant’s office under color official included effective au- right.2 thority Moreover, recipients to determine agree I examined in the state leases.”4 light government,3 majority most Thus is af- favorable Addonizio, (3d public payments 1. United States v. 451 The use of F.2d 49 office obtain denied, 936, 1971), money statutory Cir. cert. 405 require- U.S. S.Ct. is the crux of 949, right. 30 L.Ed.2d 812 Wrongful United ment color of States v. official Provenzano, (3d Cir.), 334 F.2d be a cert. de use of official can basis for extor- nied, 440, public 379 U.S. 85 S.Ct. tion. It matters not whether L.Ed.2d official (1964). money perform induces perform duties or not to his duties. It matters Kenny, 2. United States v. F.2d 1228- public performs not whether official acts denied, (3d Cir.), cert. 409 U.S. 93 S.Ct. perform or does not acts unrelated to his (1972). 34 L.Ed.2d 176 duties which can undertaken because States, Glasser United position. of his official 86 L.Ed. 680 long So as the motivation of money charged: the victim focuses on 4. The court office, official’s the conduct violates the Hobbs right “Extortion under color official is the Thus, you Act. if find that Senator Mazzei public official, wrongful taking by a such as a BMI, Incorporated being held himself out to senator, money not due to the state official position granting in a to influence the or due to his office. question, you leases in need not find that he Extortion, law, federal as defined is com- actually legally empowered so, to do wrongfully mitted when obtained asking find he was under color of consent under color of victim (Tr. 942-43). obtained, right. When so crime has been committed. firming theory on a different from the and Industry. But let me resolve this actually presented jury. one ambiguity in favor government. of the Then I must conclude that the case was Explicating portion that of the charge jury submitted to the on the theory that margin,5 in the reprinted we see that the Act is violated when an influ- defined the court term district “under peddler, who is senator, ence also a state right” first negatively color says that for a fee he can influence the affirmatively. negative In the and then decisions of a different governmental the court made clear that portion and does so. branch not have to find that jury pay- did The district court understood perfectly anything per- had to do with the ments giving well that it was the case to the non-performance formance or of senato- an influence jury peddling on charge duties, performance or with the rial nothing having to do with jure the de of “acts non-performance unrelated to powers de facto of the office of state only duties which can be under- [such] expressly senator. It declined to charge position.” because of his official taken Thus, requests: these defendant’s negative charge definition the necessity excluded the for a finding that “5. Extortion under color of offi- system placed a state even the de facto right cial occurs when public officer, responsibilities decisional in the state including officers, elected any- obtains senator as such. Nor did the district thing of value under pretense that charge court that had to have had the officer was entitled to it by virtue a reasonable belief in the existence of If person of his office. who happens system. key such sentences in its public to be a officer renders a service affirmative definition of “under color of in his private capacity and demands a right” are these: official payment therefor or makes de- private mand in his capacity, it is not long as the “So motivation of pay- extortion because it was not done un- money by ment of the victim focuses right. der color of official . office, official’s public on the the con- Thus, duct violates the Hobbs Act. if (Alternate request: Extortion) you find that Senator Mazzei held you Before can convict defendant of BMI, Incorporated himself out to as inducing payments under color of offi- being position in a to influence the right, you cial must be satisfied be- granting question, of the leases in you yond a reasonable doubt that the fol- need not find that he was actually le- lowing occurred: so, empowered to gally do to find he acting under color of official (c) that Senator performed Mazzei (Tr. 943) (emphasis added). at acts which could be undertaken charge If we look at the right of his position; because entirety the most in its that can be said (d) that the motivation jury

to have been submitted to the focused on defendant’s position as a (a) it must find Mazzei was a distinguished as senator from his abili- Senator, (b) that represented he ty political to exert (II influence.” he, office, power not his had the 356a-57a). App. granting leases. Moreover, charge is sufficiently am- Contrasting the charge given with the jury that the biguous may so well have requests charge that were explicitly the reference to the understood rejected, simply cannot be said that as a official’s office reference not to the the case went to the on the theory of state senator but to an office “office” it could convict if it found exerting de facto in the Bureau of represented there was or was to be Department or the Lotteries system vesting power Labor state over leases in supra.

5. See note 4 649 denied, 914, 233, 409 93 U.S. S.Ct. 34 the district Nor did senator. the state (1972); 176 L.Ed.2d United States v. Ad that the had understand court donizio, (3d 1971), 451 F.2d 49 Cir. cert. any entertained be- victim the find that denied, 405 92 otherwise, S.Ct. 30 the sub- lief, reasonable L.Ed.2d 812 To the extent that totally for the court right, ject of official holding not the defendants offices re request charge defendant’s rejected sponsible for the desired end were in margin.6 in the reprinted number cases, in those they properly volved were the disagreement with My areas by virtue of 18 2(a). included U.S.C. § First, I then, threefold. do are majority, charged But Mazzei is not having with the case was submitted agree that not participated obtaining in money on be rep- theory that Mazzei jury on the the holding half of or in aid of someone had vir- state senators that resented in the office executive branch of Penn the de facto emolu- system a state tue of government. Rather, sylvania he is leasing control over office of ment charged obtaining money for him Second, agree I do not that decisions.7 by virtue of his self influence there. a crime un- given defines charge the there are no Third Since Circuit cases Third, Act. I do not be- the Hobbs der applying right the color of official provi Act reaches the of- the Hobbs that lieve peddler sion to an influence the majority majority has construct- which the fense looks outside this circuit to United actually defined in ed, than rather Staszcuk, v. (7th States 517 F.2d 53 Cir. charge. court’s filed, 1975), petition for cert. 43 U.S.L.W. II. The Authorities (U.S. 1975) June where the en reference, adopted, by banc court in this circuit has held authority No opinion at right” por panel (7th 502 F.2d 875 color of official Cir. “under 1974), Price, United States v. 1951(b)(2) ped covers influence tion of § (4th 1974) (per curiam). F.2d Cir. three cases in which we dling. In the upon These are slim reeds which to base pub the Hobbs Act to state applied have enlargement major a of federal officials, was tak criminal money extorted lic jurisdiction. enforcement holding per law persons of the by or on behalf en particularly curiam dictum in Price is vested with decisional in municipal offices significant since the actually court the desired end. Unit holds for responsibility the conviction was Somers, (3d sustainable un v. 496 F.2d 723 ed States 1951(b)(2) der the other branch of denied, deal Cir.), 419 U.S. cert. ing But with coercion. even on the color United L.Ed.2d States right aspect, official the case (3d Cir.), cert. of involved Kenny, 462 F.2d 1205 obtained, payment leases OF OFFICIAL RIGHT: 6. “7. COLOR any money determining was not senator whether was obtain- color of of- you not under right and therefore must con- conduct color of official ed under right? Kelly the manner upon Did ficial of the facts which Mr. sider all on their corporation treat Senator Mazzei or Did he seek out acted. making that it was reveal and records him out? Did he be- books the senator seek did and therefore agreement political contribution be- from the outset lieve right? Ulti- paying color offi- the senator involved an tween him and yourselves unofficial, mately, you whether po- ask should or an of the senator cial task pay Kelly agreed senator’s for the Did he believe that he was Mr. favor? litical together parties getting of the something all paying the senator efforts get preferential considera- BMI could supposed Did he so that to do as senator? had to knew Mr. leases which tion for ultimate decision was in the know Maz- than Senator Bureau, approved others Lottery Depart- hands added). 357a) (emphasis App. (II Properties Supplies? zei.” Did the ment of documents, original including proposal light most fa- in the that viewed I concede themselves, place him on no- the leases government evidence would vorable to Mazzei could not exert tice that Senator finding, had such a supported such have securing the leases? Did given. charge that, he have known once or should he know led city councilman who his victim to trust inhered in the office there he that as such had de facto never was that any powers doubt believe issuance of prevent to an oc- the office under color of power which de- jury permit. acted, pretended The cupancy act, must, instruct- fendant or to held, actually if have possible that made ed effectuation the extortionate act. is not issue ... whether “[t]he See, e.g., Bishop, II J. Commentaries on power had the to defendant with- 329, the Criminal Law (2d § at 246 ed. permit, hold the but whether it was 1859); Desty, A Compendium R. for to reasonable [Scotsman believe] 84a, American Criminal Law § at 214-16 had such power.” that he (1887); J. Law May, 81, of Crimes at § Id. at 1350. (4th 104-05 ed. K. Sears & H. Weihofen appeal only the issue The raised whether 1938); Wharton, 3 F. Criminal Law & jure found de must have statu- 1393, Procedure (R. § 790-91 Ander- tory power in the councilman. The case 1957). son leading ed. A case describes simply did ped- not involve influence thus; the crime dling. payment involved a Staszcuk to alderman, who as such standing had “The offense consists in the oppressive zoning exceptional appropriate authority before misuse of the with oppose application zoning to which the law invests the in his incumbent ward, refraining from opposing of an office. It is thus apparent that application. for the the crime of is committable influencing only purpose defendant’s an officer. The officer need alderman, legal not for purchasing conduct not title to possess the office influence his with others. An he per- alderman whose functions executes. A clearly official, is a officer, Staszcuk son who serves as an money under estopped took color to to be one is deny office claims his conduct in appointment. influence that office. his official 2 Bish. Cr. Price Law, appears nor Staszcuk deal Neither 392. So § that a de jure for influence over as a de third-party facto as well officer is punishable No case to which we extortion, conduct. have been as he is for has ever applied any referred other malfeasance in But office. presented character, the circumstances an official either de facto or jure, record. de is essential. The indictment is form, usual charges drawn III. Mazzei’s Conduct Did Not Consti- officers, and, the defendants were tute Law Common Extortion office, by color of their extorted. This At common law extortion was an of- averment, proof is a material of which could fense committed absolutely required to support con- public officer. words, Blackstone’s 9 viction.” is an abuse public justice, “extortion Kitby State, 320, 321-22, v. 57 N.J.L. 31 any consists in officer’s unlawfully 213, A. 213-14 (Sup.Ct.1894). taking, by his office, colour of from any man, any money thing value, pretended Mazzei never hold him, not due to or more due, than is department executive office nor did he it is due.”8 Since the pretend before essence of that he could personally award offense was the abuse of the public the leases. He did no more repre- than Blackstone, grounds, 543, 4 W. 315, 8. Commentaries 320 64 *141. U.S. 88 L.Ed. (1944); Dunlap Curtis, 300 v. 10 Mass. 210 See, e.g., Nardello, Begyn, (1813); United States v. 35, State v. 9. 393 34 N.J. 167 A.2d 355, Weleck, 534, (1961); (1969); 21 State v. 89 S.Ct. L.Ed.2d 487 161 10 N.J. Sutter, (7th United States v. (1952); 160 F.2d 91 A.2d Commonwealth v. Laudani, Wilson, 1947); United States v. Pa.Super. Cir. 134 F.2d The Queen Baine, (3d 1943), rev’d on Eng.Rep. 851 n.1 other Cir. common meaning. some of the law he could influence those execu- As sent opinion points out, majority the word officers who controlled department tive “extortion”, as used in 1951(b)(2), first of leases. This was granting appeared expressly in the Mazzei Anti-Racket- law extortion. was not common eering Act of office of senator. He was amended the misusing the Anti-Racketeering Act of 1934.11 The misusing personal political power statute was addressed primarily conduct of another officer. racketeering, labor and contained no ex- press did, reference extortion. It Statutory Offense IV. The however, both proscribe might what be statutory as is, no federal common law of described There is extortion —that Nevertheless, obtaining payments by use Congress when or crimes. threat of import technical at of force —and what must words of com- use have uses must, in the absence of intended as common law one mon law extortion —that indications, is, obtaining property assume that “under contrary Con- color of of- incorporate wording at intended least ficial gress of the 1934 3, 1946, 537, July attempts 10. Act of ch. participates 60 Stat. 420. Sec. 4. Whoever or in by attempt anything § The 1946 version of 1951 was modified to do in violation of 25, 1948, 645, guilty ch. felony. Act of June read as it does in 62 Stat. 793 to section shall be of a today. read, The 1946 version Sec. Whoever commits or threatens part, pertinent physical any person as follows: property violence to or plan purpose in furtherance of a or to do used in this “Sec. 1. As title— anything in violation of section 2 shall be (a) (1) The term ‘commerce’ means com- guilty felony. aof State, any point merce between ry, in a Territo- any Sec. 6. Whoever violates section of this any point or the District of Columbia and shall, upon thereof, pun- title ished conviction be thereof, points or between outside same lumbia but of, within the by imprisonment for not more than State, Territory, or the District of Co- twenty years byor a fine of not more than through any place outside there- $10,000, or both.” (2) commerce within the District of 18, 1934, 569, 11. Act of June ch. 48 Stat. 979. any Territory, (3) Columbia or commerce over which the all other pertinent part: 12. The 1934 Act read in United States has jurisdiction; ‘Territory’ the term means who, Any person “Sec. 2. in connection with any Territory possession or of the United any any way any or in degree affecting act in relation or in States. any trade or commerce or ar- commodity moving ticle or in trade or commerce— or about to move (b) ‘robbery’ The term means the unlawful obtaining personal taking property, of or (a) obtain, attempts by Obtains or person presence from the or in the of anoth- attempt of use force, violence, or to use or threat to use er, will, by against his means of actual or coercion, or force, violence, inju- or threatened ry, or fear of considerations, or other valuable or future, person or to his immediate or purchase property protec- or rental of or property, property custody pos- or in his or services, including, however, tive session, person property or or of a rela- payment wages by employer a bona-fide family anyone tive or member of or in employee; to a bona-fide or company taking his obtaining. at the time of the or (b) another, property Obtains with consent, by wrongful his force or induced use of (c) fear, right; The term ‘extortion’ or under color means the obtain- ing property another, from or with his con- sent, by wrongful (c) induced use of Commits or threatens to actual commit an or force, violence, fear, physical physical injury threatened or or act of a or violence or right. person property plan color of official or in furtherance of a any way purpose (a) (b); degree Sec. 2. Whoever in to violate sections or or or ob- structs, delays, commerce, (d) Conspires conceitedly any or affects or acts or with any person persons commodity movement of article or other or to commit in commerce, by acts; shall, robbery extortion, foregoing upon the thereof, conviction shall be guilty felony. guilty felony of a and shall be conspires punished by imprisonment years Sec. 3. Whoever from with one to ten another or others, $10,000 or acts in concert a fine or both.” with another 569, 2, anything or with others to do June ch. § in 48 Stat. violation of guilty felony. section 2 shall be of a 979-80. presented passing Senate, some difficulties in its After statute 78 Cong.Rec. racketeering, (1934), to labor and re- application submitted in the House, fairly reading ceived a narrow where it was completely Unit- amended Local v. Teamsters 315 and a new bill ed States substituted. The reasons 521, 62 86 L.Ed. S.Ct. 1004 for this amendment have been described specific reaction to that Supreme deci- Court in United States statute was the 1946 enacted.13 v. Teamsters Local supra, sion at Structurally it differed from the 1934 follows: respects. Those Act in several differ- “After the passed bill had Senate, important purposes for our are ences however, representatives of the Ameri- first section contains a defini- can Federation of Labor expressed the term “extortion” and for tion of fear that the bill in its then form proscribed “extortion” spe- first time might result in injury labor, serious language. But cific definition in and the measure was redrafted of- Act, 1951(b)(2), the 1946 now 1(c) of § ficials Department of Justice although description it broadened the after conferences with the President somewhat,14 merely coercive of the Federation.” forward “under color of carried offi- language right” 2(b) of the § cial 1934 the House revision the term “color With congressional Thus whatever Act. inten- right” appeared of official for the first may tion be ascribed that term must time. in the records of the Seventy- be found Congress. third House Report, along The submitted legislative There is no history (H.R. extant with its new version of S. 2248 tending to show that the 6926), 1934 Act was short. In addition reprint- was empower bill, intended to federal ing reprinted authorities the text of the new police peddling politi- by in the written Homer Cummings, a letter processes cal of the General, states.15 Attorney Whatever then to Hatton W. legislative history Sumners, there suggests of the Chairman House Judici- contrary conclusion. The 1934 origi- ary H.R.Rep.No.1833, Committee. 73d nated in the (1934). Senate as S. 2d Cong., 73d Sess. In United Cong., (1934), reprinted 2d Sess. v. Teamsters Local 78 States the Su- Cong.Rec. (1934). 457-58 It pro- placed heavy emphasis was Court preme posed by Copeland, Senators interpret as a tool to letter, Vandenberg this letter the 1934 Murphy and and contained reprinted no Act. The which I have reference by to extortion “color margin,16 particularly of official in the useful. H.R.Rep.No.238, Sess., Cong., your 13. tute for the 79th 2d bill which re- committee has printed Cong.Serv. 1360, in 1946 U.S.Code under consideration. 1370. After a series conferences with Mr. Keen- Rice, Compare 1(c) Act, supra definitely an approved by Mr. this draft has § 14. been note Act, Green, 2(b) supra president of the Mr. William § 10 with note 12. Labor, the American Federation of and James Cong., S.Rep.No.532, 73d 2d Sess. 15. See Easby-Smith, Esq., S. counsel for Mr. Green. Cong., H.Rep.No.1833, 2d 73d Sess. We believe that the bill in this form will (1934). accomplish purposes legislation of such objections and at the same time meet JUSTICE, “DEPARTMENT OF original made to bill. C., May Washington, D. susceptible original bill The to the ob- SUMNERS, Hon. HATTON W. might jection prohibi- include within that it its Judiciary Committee, legitimate Chairman of the House and bona fide tion employers activities of Washington, Representatives, employees. purpose D. C. As the enclosing am legislation Mr. Sumners: I Dear herewith is not to interfere the legitimate with such bill, antiracketeering up draft S. the new 2248, activities but rather to set severe prepared upon by violence, racketeering which has the infor- penalties for extor- your suggestion coercion, tion, committee as a mal substi- which affects interstate com- fail- implication, Compare language 2(b) the letter’s this negative By under color of Act: “extortion to discuss ure suggests that the drafts- right” “Obtains the property another, prohibition not intend did men consent, by with his induced wrongful not extortionate at com- conduct reach fear, use of force or or under color of ” expect would at least a law. One mon right; by to be made comment passing similarity The between the two defini- they if intended to attach rev- draftsmen must be more tions than accidental. art, meaning to a term of olutionary meaning While the attributed to the and used. long known right” of official by term “color the New the statute The conclusion legislature York courts is to revolutionize the mean- not intended dispositive of the congressional means in- right” is but- ing of “color using phrase, tent in it is highly per- by Congress- a comment made tressed both because suasive its meaning in New York, apparent- of New who man Oliver long York has been settled and because House, bill in the after ly submitted legislative history indicates no inten- committee: cleared it had change tion to that meaning. merely the creation of an ex- “This is phrase “under color of official against statute those who ex- tortion right” origin traces its to a penal code by force or violence from tort prepared Dudley David Field and oth- in interstate engaged com- those Code, ers. Commissionersof the The Pe- Cong.Rec. (1934) merce.” nal Code of the State of New York supplied). (emphasis Interestingly, the definition of little doubt that the drafts- There is code is even closer to the 1934 took term “col- men of Act, in the the one used than is right” from the New official York or of York’s 1909version. New The Field ver- 1909. Section 850 of Law of Penal provided: sion law, the crime of extor- which defined Extortion 613. is the obtaining “§ tion, as follows: read another, property from with his obtaining prop- is the “Extortion consent, aby wrongful induced use of another, obtaining or the erty from fear, or or under color force of official corporation a from an property right.” thereof, officer, agent employee or consent, by wrong- induced a In a note his to that with definition the Commis- fear, or or under color sioners referred to of force an ful use old New York case, right.” People Whaley, official 6 Cow. (N.Y. merce, definitely provision it seems advisable prohibiting have added a new exclude We legitimate conspiracy such activities. as well as the substantive acts and typical racketeering separability As the activities we have also added affect- clause to ing interstate commerce are those in make certain that entire act will connec- not be price fixing tion with and economic declared unconstitutional in the event that its by professional gangsters, application any directed we circumstance is held have invalid. subparagraphs (a) (b), part making any inserted ’’and that this bill is a We feel vital accompanied program suppress such activities unlawful when Federal so-called ‘racket- affecting eering’ violence and interstate activities have assumed commerce. Nation- proportions. Antitrust The Sherman Act is too wide restricted penalties Sincerely yours, in its terms and the thereunder are too moderate to make that act an effective CUMMINGS, HOMER weapon prosecuting racketeers. The anti- Attorney General” racketeering ju- bill would extend the Federal racketeering risdiction in those cases where 17. Penal Law of amended, § as related to acts are interstate commerce and 518, reprinted Laws of ch. in N.Y. Penal are therefore of concern to the Nation as a Law, appendix (McKinney 1967). § whole. derivation of the Sup.Ct.1827), Dispossesses 3. another any tenements; right” language. official “color of Wha- lands or or typical common law extor- ley involved act, 4. Does other whereby an- had been commenced on A suit tion. injured person person, other in his return date of the sum- note. On rights; or property, appear. did not plaintiff After mons the oppression Commits guilty and is that he telling going the defendant misdemeanor.” costs, jus- plaintiff tax Section 556 was carried forward to the adjourned secretly the case. How- tice ever, Code of being Penal re-enacted judgment the defendant confessed verbatim § amount he paid the owed on the An examination of the Penal justice court. The Code of into the collect- note 1909 reveals something else to which he was that is note- technically ed a fee worthy. judgment (formerly Section only if a had been 556 re- entitled en- printed, supra) captioned permitted “Oppression But tered. find, committed color of did, plaintiff’s that the non-ap- It is clear that this title had caused the case to was not pearance be dis- added by McKinney, since judgment caption previous- continued. Thus could ly read “Extortion entered since the committed under have been discontin- col- right” or of justice but was jurisdiction. ousted the uance amended in 1945 to substitute the word “oppression” The fee had been collected “under color for “extortion.” right.” The court defined the offense thus: What does all this tell us? Certainly signifies, “Extortion in an enlarged the New statute York did not contem- sense, any oppression under color of plate prosecution such as the one we

right. sense, aIn stricter signifies are now reviewing. The New York stat- taking money by any officer, by proscribe ute intended to common law office; either, color of his where none extortion required an act pre- due, at all is or not due, so much tended act official capacity. Even yet when it is not due.” M at 663. if I were to accept the majority’s ap- proach, and conclude that Mazzei derived The Field Code does not appear to his de facto solely from posi- have adopted in its entirety. How- senator, tion as state his actions were ever, it served as a prototype for a new not public officer, those of per- or a statute, penal “[a] the Penal Code of 1881. pretending son to [acting] be . such . . Laws of eh. 676. That enactment pretense or color of official au- copied Field’s definition of extortion ver- thority.” Remembering that the com- batim. Section 552 of the Penal Code of mon law term was “color of office” and 1881. significantly, But the 1881 Code not “color right,” that the lat- expanded upon Field’s enactments deal- ter term had been known to American ing with extortion. For 556 § jurisprudence for some years 70 before 1881 enactment contains the marginal Act, the 1934 and that the legislative notation “extortion committed under col- history suggests no reason to interpret right,” or of official appended to a new right color of official any differently section found not in the Field Code: “ from its historical meaning, it offends all public officer, 556. A per- logic sense of to think that the drafts- pretending such, son to who, be unlaw- men this chose term of by accident, art fully and maliciously, under pretense they or that intended it to reach or color of official authority, offense committed Mazzei. another, 1. Arrests or detains him will; against side, this all however, to one Putting I 2. Seizes or levies upon another’s disturbing come to the most feature of property; or this case. If “color of official right”

655 extortion, of the office to which the law duties candi- common mean not does aspired. charge If the give it fair date under which Does it mean? does what case was submitted to the pro- it this is conduct which warning of correct, Meyers is an a fortiori case. I whatever it mean Does scribes? ask, however, anyone dis- whether given reading in a Attorney States United 1934 statute aimed pay- primarily it cover this at Does la- it means? says trict racketeering would offi- bor have anticipated or union officers corporate to ments regulated state Un- that it election public compaign officials? as to as well cials me, least, financing. To at Congress the inten- it does attribute less we warning give clas- fair to that to describe the effect. term to use tion extortion, offense of law common sic V. Conclusion content, then I a well-defined has disjunctive clause in the submit Supreme recently Court has reit- vague. It unconstitutionally is statute “ambiguity that an concerning erated warning of the con- fair gives simply the ambit of criminal statutes should be thing It is one proscribes. it duct favor of lenity.” resolved in Rewis v. v. Ken- did in United States hold, we States, 808, 812, United U.S. 91 S.Ct. Congress disjunctively supra, ny, 1056, 1059, 28 L.Ed.2d 493 Unit- the not uncommon statu- both prohibited Bass, v. ed States of threats— of extortion—use type tory (1971). 30 L.Ed.2d 488 S.Ct. This extortion—abuse of law the common of narrow construction rule is rooted in to cut the quite another It is office. process the belief that due requires that from the anchor clause loose disjunctive warning given fair should be as to what and set it adrift law common subject may conduct be to the sanctions discretion. prosecutorial sea upon law. of the criminal See United States Bass, supra, v. years government In recent has 488; United v. L.Ed.2d States Wiltber- startling broad view as to espoused ger, (5 Wheat.) 76, 95-96, 18 U.S. proscribed 5 L.Ed. the Hobbs conduct what Otherwise far too much dis- Meyers, States United Act. placed will be cretion (E.D.Ill.1975), hands of example, F.Supp. 1067 officials, executive branch enforcement a non-incumbent candidate urged that inevitably be and it will abused. pre-election payoff In the elicited who climate of present persons mistrust payor after elec contracts award life—a mistrust that unfortunate- the statute. The district within fell tion contention; be said to be ly cannot undeserved—it is rightly this rejected court so, to hold that tempting since what Senator Meyers Yet the case is suggest. I reprehensible Mazzei did was ought he law extortion than common closer by some punished authority, and to case, was made in the Hobbs to meet stretch the occa- performance with the connection States, ‘The time such terms have Cf. Bianchi v. United 219 F.2d come into denied, they injected by (8th Cir.), this case cert. the defend- 193-94 They (1955): appear charge ants. once in 99 L.Ed. 1249 and request negative then at defendants’ and in a complain that “Defendants the in- way. requested Defendants and the Court given could structions find defend- gave request their number 54. It reads: they guilty money if ants obtained under col- accepts money prop- ‘If a Union officer representatives. or of office as union De- erty private as a individual and not in his referring fendants are to the common law capacity finding there can be no where, offense of extortion in case of extortion under color of office however in- officers, place color of office takes duty may consistent with official be the ac- force, threats, pressure. No one con- ceptance property.’ of such merely tends that defendants are liable be- position The Defendants are not in to ob- officials, they are union cause obtained ject given request.” to an instruction at their money. As to this contention the trial ruling on motion for a new trial court said: temptation must resist that sion. Courts the long-range preser- interest of

in the limited

vation of even-handed guise in the regulat- If

government. Congress commerce

ing interstate wants peddling for hire in prohibit government local

state and should be specific 1951(b)(2). than in §

far more I more into the

would read no clause “un- right” than the com-

der color law definition extortion.

mon This does not establish common

record law and neither court’s charge majority’s description of the

nor the it. I would define reverse the con-

facts

viction. ADAMS, by Adams,

Devlin Rossini guardian,

parent and natural

Plaintiff-Appellant,

Caspar WEINBERGER, Secretary of

Health, Welfare, Education and

Defendant-Appellee.

No. Docket 75-7098. Court of Appeals,

United States

Second Circuit.

Argued June 1975. Aug.

Decided

Case Details

Case Name: United States v. Frank Mazzei

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 29, 1975

Citation: 521 F.2d 639

Docket Number: 75-1357

Court Abbreviation: 3rd Cir.