United States v. Kemble

et al. STATES v. KEMBLE UNITED

Nos. Appeals

United States Court Third Circuit. April 21,

Argued Sept. 4, 1952.

Decided McLaughlin Staley, Judges, Circuit

(cid:127)dissented, Biggs, Judge, Chief dissented part. Gray, Philadelphia, A. William (Al- Pa. Plone, Camden, J.,

bert K. N. Lester J. Schaffer, Philadelphia, Pa., Gray, Ander- son, Rome, Philadelphia, Pa., Schaffer & brief), appellants. Richman, Jr., Newark, C. Grover N. J. Rutkowski, Atty., (Stanley E. Asst. U. S. Rounds, Atty., B. Asst. U. Tren- Stuart S. ton, J., brief), appellee. N. on the BIGGS, Judge, Before Chief and MAR- IS, McLaughlin, Goodrich, ka- LODNER, HASTIE, STALEY and Cir- Judges. cuit HASTIE, Judge. Circuit presents appeal important ques This application tions construction and 1946,1 July the so-called 420,18 (1946 ed.). superseded 60 Stat. U.S.C. 420d this statute was and its sub- consequential between the occurrence of the reenacted! without stance charged indictment, offence change here and the Section 1951 the new Title 890 “ * * * asked a he crime makes [Kemble] Hobbs a book, man of or in card and engage to acts the United States by any, he didn’t have and designed violence to obstruct [Leonard] said, helper You will have have to indictment under Section extortion. An truck, and from the local unload the Drivers and charged Truck

of the statute day’s wages man Union, Kem there would be a for a Aaron Helpers Local acts which was ble, agents, with $10.00.” its business one of Elwood Leonard against one of violence driver, Leonard, testified the same pursuant to property possession, his effect: obstruct, de “plan purpose to their told me that I had “He [Kemble] and the move lay and affect commerce put a union man on the truck to un- and commodities of certain articles ment I load. said‘What for?’ He said‘Be- by The defend extortion”. in commerce the union rules it.’ I said ‘I cause together and both were tried ants were delivering don’t believe so. We sentenced to two Kemble was convicted. say union rules our own stuff and the imprisonment and the union was years can.’ He said ‘You have to we will years. probation three Both placed forget offhand another man.’ I hire appealed. neighbor- It was what was. Leonard, a showed that The evidence T am not author- of said hood $10. employed by driver pay truck ized him Doehler-Jarvis Pottstown, Pennsylvania, Corporation of proof offered no or rebut- The defendants shipment merchandise transported of Thus, pur- on the tal whatever. issue of plant of the Pottstown truck from motor jury reasonable for to con- pose it was Camden, Jersey, New employer 'his Kemble, understanding clude that delivery attempted to make of he where did not want or need a Leonard merchandise at the RCA-Vic- part of the employ one, not authorized to nev- and was plant elsewhere. proceeding before tor forcibly pay ertheless insisted Leonard unloaded most of the RCA Leonard day’s $10, wages, for as a a su- described interposed. Kemble when consignment what pernumerary to do Leonard himself Kemble, adequate proof that aft- There is paid accomplishing was do and was not a ascertaining that Leonard was er Kemble intervened. when union, or cleared member of Kemble’s from inter- stopped unloading Leonard design violence with such within Is employed actual shipment and state statutory meaning extortion defined against Leonard and violence threatened obtaining Act as “the property possession. in his another, consent, from with property his by wrongful use of actual or purpose induced of Kemble’s The evidence ” * * * ?3 threatened force More nar Leonard him- supplied the truck driver rowly, payment which is the Kemble tried Lafferty Earle receiv- who was self and b}'’ levy compel tribute as such a amounts shipment consignee for the as it ing the property “obtaining of to forceful from Lafferty Leonard. tes- unloaded Or, analysis does at- another”? follows: tified as any way degree However, or ob- “Whoever United States Code. structs, delays, commerce, prosecution or affects or as this. Act of June commodity repealer permitted saving article or the movement clause robbery commerce, by extortion, or c. Sec. felony.” guilty preceding shall be section 1. note U.S.C.A. 2. “Sec. physical to do erty shall in furtherance anything guilty of a violence Whoever provides: violation commits or threatens felony.” any person plan or section or prop- actual fear, his obtaining “Sec. “(c) consent, or under color of 1. As used in this or The term threatened ^[*] property induced ‘extortion’ ^[*] by wrongful from force, violence, official title— another, right.” means the use ^[*] tempted attempted tual “extortion” and defined exchange transaction payment obtaining “extortion” “the wages services, albeit forced services, another, consent, es- induced acceptance of with his a forced for and threatened wrongful use actual of some essential tablish the absence * * But, force from the different Hobbs Act extortion? original exception for was made semantics, the Certainly, as a matter of property cases the should where involved statute, of “obtaining words the quoted of money paid be demanded to in the form be enough another”, from are broad property wages. change of This deliberate. ex- objective. cover Kemble’s And an report Congress The committee that shows history the legislative of of amination the exception original had the and its effect Congress that intend- us statute convinces mind, report foremost in for that sets forth comprehensive coverage. ed Supreme in full the text Court in “Anti-Racketeering original Both the United v. construing States Local 807 the 979, 1934, 48 and the amenda of Act” Stat. exception, controversial and little else. And 1946, 60 tory reenactment Stat. of throughout ensuing the debate the House indictments, are present the controls which floor, proponents princi- of the bill talked inter directed criminal sanctions pally about the undesirable narrowing of by commerce coer with interstate ference original the statute which had resulted from nature of extortion. cive conduct the judicial exception. construction of the proscrib original this area the Within Cong.Rec. 11899-11922 (1945). The de- ed, things, among other the use of threats opened bate was for the proponents of the money obtain, payment “the force to explanatory bill with by statement Con- * * * however, including, pay gressman Hancock that “This bill is de- wages employer bona-fide ment signed prevent simply to both union mem- employee”. 48 bona-fide people bers and nonunion from making exception construction of this became robbery use of and extortion under problem for the courts. In United guise obtaining wages in the obstruction v. Local States interstate commerce.” Cong.Rec. Supreme 86 L.Ed. Court S.Ct. speaker 11900. Speaker expressed after analyzed exception in this considerable essentially the same view detail. One of “ its conclusions and effect the bill. Equally instructive * ‘attempts’ who un an outsider Congressman was the effort of Celler to successfully by means violent to achieve amend the bill the floor inserting a employee of an secure the status stipulation that extorted excep wages for services falls within the “wages paid by not include em- bona-fide ** tion. And where the offense ployer employee”. to a bona-fide 91 Cong. section, charged conspiracy to violate the Rec. 11913-11917. only Not was this immunity if defendants are entitled to amendment defeated but the debate on it become em objective is to bona their fide made clear the prevailing view that such wages capaci ployees and to obtain solicitude toward the payment forced they may though pur fail of ty, even their wages destroy would the principal intended page pose”. U.S. effect preserve of the bill and the stric- tures of the Local 807 case. 1945, the House on the In Committee Ju- In circumstances, these the conclusion diciary reported bill which became the inescapable seems intended Beyond statute. revision for- 1.946 language used in the 1946 statute improvements reorganization and mal enough include, broad proper cases, principal accomplish- language change payment wages. forced We say “in bill was the the new elimination ed proper advisedly. cases” For it is not nec- exception the effect of which had been essary we here great consider the par- 807 case. Local More stated variety of circumstances in which coercion ticularly, reenactment covered in- payment may wages. be involved by ac- with interstate terference case, edge Carpenters We need not consider the normal demand thereof”. wages compensation for services Court under reasoned that employer. quoted predi- language liability may not be or valuable to desired satisfy case, decide, enough showing we on a and all cated which imposed, merely requirements doc- payment money un- of the tort respondeat superfluous superior trine or even wanted services such as the attempted stricter shows Kemble to en- normal criminal law evidence doctrine “corporate re- force here violent obstruction of com- defines the area of criminal sponsibility language merce is within the intend- for the officers and acts of agents employ- scope ment of the statute. course or Beyond both there must ment”. of these phase of A final observation on this proof be particular “clear act original case. We have considered charged, type or act generally of that “Anti-Racketeering” expressly pre- Act quality, expressly authorized, had been or rights serves “the of bona-fide labor or- necessarily granted followed au- ganizations lawfully carrying legiti- out the ** thority subsequently * * * or was rati- objects ”, thereof mate and that by fied association after [the] fair inference the Hobbs does the knowledge actual 330 of its occurrence.” thing. “lawfully” same But the word is an 406-407, 781, U.S. at 67 S.Ct. important important limitation. It is all here since no federal or state sanction noteworthy It 'is that the Court did not makes Kemble’s conduct violent lawful. “participation” by deal with or- disposes principal conten- This ganization category as a distinct from “au- of tion Kemble. He has advanced others The thorization” or “ratification”. reason concerning the admission of evidence and Carpenters case, seems clear. In the as in prosecutor’s the content of the summation. case, organization this was indicted sole- persuaded any are not these We ly agents. on the basis of acts of its No is well founded. We find no contentions any “participation” effort was made show in the conviction of error Kemble. organization except insofar as acts Thus, agents may have been

The case the union involves the authorized. question demonstration that there no organiza- additional sufficient whether the proof criminally responsible for union “authorization” the same tion was Kem- “participation”. responsibility negatived token ble’s acts. Proof of had to imposed Any different statutory required result would have meet a standard Sec- prop- the invocation of fiction which tion 6 the Norris-LaGuardia 29 place imposition punishment. er in 106, recently U.S.C.A. construed Supreme in Court United Brotherhood of Carpenters There was a dissent in the Carpenters of America v. Unit- Joiners dissenting pointed out case. Justices States, 395, 775, 67 ed that, under the Court’s construction of Sec- 91 L.Ed. 973. for responsibility tion a union acts disputed is not 6 of or members for officers would limited pro practical purposes applies all to cases where the Norris-LaGuardia Act wrongdoing wrong- ceedings question Act.4 And Sec or similar under the Hobbs approved provides doing individual been authorized or tion 6 that neither an meeting equally organization can re vote at a union or some nor “be held a labor group manifestation will. dis- sponsible court of the Unit clear or liable senting seem have believed that acts of individ ed for unlawful States Justices n members, except up normally officers, agents, such doctrine as criminal or limits ual applied participation in, responsibility agents, for acts proof of actual or on clear of, acts, conjunction requirement with the normal or of actual authorization proof of each essential after actual element of a of such acts knowl- ratification way is in no modified. itself reaffirms Section 6 Hobbs Act Act and declares the Norris-LaGuardia Co., 1925, Ice ford Cream Conn. doubt, sat- beyond reasonable crime cf., Curran, But Martin v. A. 778. of the Norris-LaGuardia isfy provisions N.E.2d 683. How N.Y. Act. ever, responsibility criminal even normal must the law as the we take But regard, does not In extend far. this purposes the dissent it. For Court finds our criminal doctrine is so well settled law emphasizes the Carpenters case but exposition judicial contemporary that its required to stringency of the rule we are opinions However, years ago some is rare. precludes con- rule This strict follow. States, Cir., in Nobile v. United viction here. F. did occasion to pros- view most favorable to the point liability prin out that “Criminal the evidence in showed ecution, this case cipal agent act of his master wrongdoer merely that the was a business servant civil does not extend so far as his union; charged by agent that he was liability. criminally cannot He be held checking responsibility the union agent, contrary his acts of to his upon making appropriate representa- orders, authority, express and without persons tions the union un- about status implied, merely because the course trucks; loading that four other unidentified of his scope business and within the of the persons wrong- participated with him in the agent’s employment, though might be doing question; and that at the scene civilly.” liable See also United States v. wrongdoing, the its oc- few minutes after Bureau, S.D.Cal., Grocery D.C., Food and currence, secretary-treasurer the the F.Supp. union an- threatened similar “trouble” for employer up other if it “not live It follows that the evidence here does the union contract”. There was no other not even the meet standard which the Jus- tending way any evidence to show rela- Carpenters dissenting tices in the case tionship between the union violence and the imposed. The added stricture agent. of its business prevailing the Nor- construction .of Act is not needed ris-LaGuardia to estab- ratification, As concerns it does not even proof lish the in this failure of case. But appear how, when or whether the union it does serve make that failure clear be- was agent’s informed misconduct. Moreover, yond special doubt. this re- is secretary- obvious threat by the quirement proof “clear ac- treasurer few wrong- minutes after the tual makes authorization” it noteworthy proof, all, ful was no proof act clear if judge sentencing the district un- the approval by wrongdoing organ- the question ion remarked that the “Whether ization. or not ratified or the union directed this part act on the of Kemble and O’Neall was prior The case for authorization is standpoint from the factual a close one.” Only by no invoking better. con the tort Attorney States And the United who ar- ception respondeat proof superior can the gued appeal conceded with commenda- agent’s of the business office duties obj ectivity ble candor and that the evidence responsi made a have been basis of union against particularly the union was not bility. At most can be said that course, strong. we by Of are not bound accomplish effort to a lawful mission as impressions they these of others. But con- signed by agent the union the business acted firm our conviction that the case way required by in an unlawful his proof union contained no “clear mission and not shown to au have been * * * actual authorization”. principal. his thorized case es 10,422 appeal sentially judgment like that In employee, where an in No. merely bill, appeal affirmed. to collect sentence be structed assaults a will No. 10,423, non-paying Principles judgment will debtor. be of civil lia reversed and may permit bility imposition remanded to the district cause re judgment enter sponsibility employer on direction to ac- who way quittal. wrong. assented to the v. Son Hart ' exclusionary simply omitting provisions (dissent- McLAUGHLIN, Judge Circuit in the amended Act.” ing). From the it is partic- scant facts inferable presented by the proposition the defendant union had a contract with be and which cannot us ular facts before whereby unloading attempted RCA-Victor of de- whether down is watered plant liveries to the latter’s Camden trucking corporation of a unionization performed by be members that union. organization, which had labor bona fide That of a contract was not evidence. objective for its sole agreement appears there helper to the truck was some qualified unload testimony corporation .having a from the Government and is not platform union, The defense and contradicted. rested without shop with the agreement closed violence, evidence, rely- accompanied affirmatively presenting which was ing acquittal. scope its motion for Defendant of the Hobbs Act of within t'he recalled, Kemble, original Fed- union’s will which is the successor agent. Anti-Racketeering Act This The evidence at most of 1934. business eral sought dispute in which showed that the defendants unqualifiedly a labor Corporation, interested duce a truck- participating union was Doehler-Jarvis major- ing concern, hire a member of the union insistence of the is shown company’s ity quality proof as to as a to take of that opinion on care t'he applicable delivery at unloading of its RCA and that union, which of course is episode dispute. Norris- course of the there was only in a nothing in this threat Kemble also that There is or threats LaGuardia Act. the air front statement de- was let out of the tires of justify case to compel payment truck to involved. fendant Kemble tried company. Kemble’s en- trucking from the Admittedly, the to con- defendants goes, was this record purpose, tire as far as they victed indictment have under the must competent to the of obtain planning guilty been shown to have been of 5 helper by the un- the trucker to do union trucking cor- to obtain the degree question loading. This is not of “ *** poration consent fairly There is inference or semantics. by wrongful of duced use actual or threat- permissible unfairly from the facts that * * force, fear ened violence or interested the or Kemble was at all union opinion flatly states that because majority company paying protection trucking in the there evidence violence and threats was of concedes this and money. The Government does and because the 1946 law not contain squarely both the trial6 issue the faced appeared exception the that in the complete position as is appeal. Its and .on wages by regarding payment Act of a bona that, even majority is of the court that employer employee, fide fide Kem- a bona to the was purpose of defendants though the Hobbs guilty ble is the Act indict- under outlined, en- violence did because as above ment against him. sole reason guilty of decreed them Congress has sue legislative history holding of by, Act as is * * the Hobbs racketeering under proposed anti-racketeering legis- Act. The “ * brief, in the Government said lation resulted in the Hobbs Act which later trying 5. See the Kemble’s evidence to unload non-union were with- majority opinion. In addi- quoted help.” in the out union Lafferty tion, that “Mr. Kemble testified concluding Attorney, The District go driver] down truck [the him wanted summation, opening of Ms said remarks get man, a a local the local you jury: many of “How to the ** truck, An KB.I. unload to agent you get away went with it if truck said he testified that “Kemble your private came, in to even driver who place he unload could not the driver told you business, and threatened book because it was a union without somebody up didn’t hire beat Mm if * * ROA, shop He said *. closed you him to liire to unload a wanted they with the lot trouble have supplied). (Emphasis truoh?” they were trucks because Doehler-Jarvis slightest time But not the existed. there is because Congress in 1945 did come before suggestion Supreme deci- that without Court the then recent exception the court would held sion Local in United States v. present the 1934 federal facts within law. But L.Ed. 1004. 62 S.Ct. decision, Indeed, opin- carefully reading Congress main in that interest impression conveyed definite is to the con- ion of the Court was in the conclusion trary. be- objective that if was effect obtain employees come fide and to bona Admittedly just the Hobbs as ex- accompanied wages capacity, even if in that legitimate clusionary objectives labor violence, objective within the was was the law. Title II of See exception to Act. The Govern- the 1934 original Act. 60 Stat. 420. frankly categorically admit- ment had exception, pre- even without its did not use co- ted in that matter that "Those who obj tend to characterize such an ective as the genuine employment ercion to secure one, though accompanied by instant vio- engaged objective; legitimate in a lence, attempted Unquestion- extortion. activities, perhaps consti- although their ably exception specifically did eliminate par- peace, tuting do not breaches scope payment from the the 1934Act the extortion(Em- take the nature wages employer by a bona fide to a bona phasis supplied.) Local United States v. employee. provision That fide was inserted 807, supra, page The real U.S. at in an excess of caution because it was quarrel was with the decision injury feared that without it serious la- with- had also held Court might bor United States v. Local result. exception where the the situation supra, U.S. at good re- services were tendered in faith and However, 86 L.Ed. 1004. the statute itself jected em- required union still never intended to cover conceded ployer equivalent pre- pay the situation before us for it was aimed direct- vailing wage. The Government “ ly at the elimination of ter- argued pay- litigation that such by professional gangsters roristic activities payment ment to be as a classed ** United States v. Local su- protection than for services and was rather pra, page page U.S. at at 62 S.Ct. grouped payments to be with where the 646, 86 Supreme L.Ed. 1004. The Court actually re- unions did offer to work or opinion that same quotes report the Senate fused to work. With the above mind legislation pending on at that time quoted Congressman statement of Hancock “ * * * purpose which states its to opinion majority readily un- becomes gaps close existing to Federal laws and clearly derstandable indicates what and to render more difficult the activities of Congress other were and the members predatory Kelly criminal gangsters of the always about was vicious disturbed Dillinger types.” practice protection payments compelling dealing problem peculiar We again its head. ugly had raised important labor. It to to have in mind Supreme Court Local prior that it arose to the Taft-Hartley stat- pass no occasion to and did not had ute, seq., 141 et U.S.C.A. where for-the § us, upon problem confronting namely, imposed Congress time upon first sanctions whether, exception, Act absent the 1934 practices by unfair unions. It arose present situation is be construed as viola- reputable genuine union’s attempt from federal anti-racketeering tive of the trucking organize corporation. The sole plan specifically, purpose is it or ex- procure of the defendants was to trucking company. tort the capable employ- work men. The Supreme In decision the the 807 Court of sought spurious was ment neither nor su- necessity considered, applied construed perfluous. only this instance was it be- exception the statute the driver of the which at that cause truck was not a S.Rep.No.1440, Congress, 7. See Session. 73d Second opinion it is interpreted by majority as question of union that member of the Supreme Court in strange to find that the Hobbs all. The arose at a union use of what would not make did obviously a Fed- general Act it stands is as June have been a claim, ready to such answer a certain directed to eral criminal statute its namely, the limit Congress, racketeering. Its of crimes known as class com- power interstáte constitutional over predecessor show history its and that of merce, forbidden Hobbs Act had legisla- type of Federal real for that need practices Instead those to all workers. Its definition purpose is clear. tion. Its was, replying say what so the Court did That ambiguity. extortion is free say province to “But it is not our within bona fide definition does not include prohibited Congress has some that because un- behalf of a seeking practices power prohibit, within despite possible violence in connection ion power.” prohibit Ibid. must all within its in this oc- That the effort therewith. never currence and that kind effort not mean The above construction does blackmail, at which the it is blackmail just Act condones violence Hobbs Congress is directed. If Act long as the is connected with violence circumstances finally the instant desired legitimate It means rather that under goal. widened readily have be covered it could those the violence other miscon- facts impact the statute. We the conditioned supervision it should duct is left to state majority power have to do so. be. As Lo- Court said unioniza- opinion designates sought opinion, page cal 807 U.S. company ex- trucking as an tion of this pow- “The unnecessary services impose punish tortive effort to er of state local authorities to * Congress upon employer. When beyond question. violence coercion prevent that sort of wished to affected the circum- diminished with “Coer- (which has to do may the Lea Act be the out- stance that the violence broadcasting; practices affecting growth dispute. cive of vio- a labor The use ** stated, carefully ”) so plainly lence record is sub- disclosed made 506(a) (1), (2), (3), (4), and ordinary C.A. ject criminal law.” imprisonment punishable a violation judgments therefore reverse the I would year, 506(d). not more than one defendants. of conviction as to both upon prison term conviction The maximum I do not think the Government While twenty transgression is Hobbs Act made out a case within the Hobbs repels the conclu- years. sense Common defendants, I do think a teamster sion proofs requirement the Nor- satisfy the prison term for possible twenty year face a reference to the ris-LaGuardia Act with type which if committed offense responsibility Kemble’s acts and union’s of not would in a sentence a musician result proofs if those a violation conduct. Under musicians year. more than When the one Act had been established of the Hobbs constitutionality of challenged the union justified have been in sub- trial court would forbidding the the Lea Act the section of mitting indictment the union to violence, a li- force, etc. to coerce use words, jury. in evi- In other there was employ any person in excess of censee to proof” “clear that dence the needed per- to employees needed the number of actually participated in or .authorized services, inter alia the union form actual hap- and did and said what what Kemble proc- due the section violated argued that pened Section 6 under his direction. “ singles out broad- because it ess as construed the Norris-LaGuardia regulation while leav- employees for casting Supreme in United Brotherhood Court employees free to en- ing classes other Carpenters America v. and Joiners practices forbidden to very 395, 775, in the gage States, 330 U.S. 67 S.Ct. United Petrillo, impose 973, practically States United v. L.Ed. does workers.” radio 1538, 1542, which must be met conditions unrealizable 332 U.S. liability. The be held may to Act is to before a union Hobbs be construed If the confront- Hobbs At outset we are matter, at Act. majority in that Act it- problem that the 973, ed with the obvious 783, page L.Ed. page 67 S.Ct. any requi- self forth no as that, im- sets statement say “There is was careful bare words According to the site mans rea. an as- plication what said that we have prop- statute, obtains anyone who in circumstances organization sociation or wrongful use of authority erty by the explicit from another give covered 6 must § way force, as violence or fear agents in a la- its violate officers or a viola- obstruct has committed controversy Act U.S. bor the Sherman [15 subject maximum tion of to a 1-7, other any C.A. law §§ note] imprisonment. penalty years’ any twenty give approval to act that antecedent Apparently guilty of a viola- one would be may its the cus- officers do. And only intent practice particular tion of the Act even if his tom or traditional of a borrow wrongfully using au- force were to union can be a of actual also source another, property long the act bind so thorization of an officer to act for and Suppose Kemble had proof commerce. the union.” The called for Sec- affected him the truck equivalent union demanded Leonard lend tion 6 need not be the perform Kemble or con- could to violate the Hobbs Act an hour so resolution beyond any this have constituted vincing doubt. union duties. Would Hobbs Act? a violation of the below, justifiable including The evidence it, satisfy from was sufficient to inferences Supreme Court recent decision of ordinary juror, intelligent conscientious States, United in Morissette v. par- authorization of union’s control here. U.S. 72 S.Ct. ticipation during in Kemble’s activities of steal- there was convicted defendant period. critical Section 6 of the Norris- ing government in violation requires LaGuardia Act no more than that. Code, 18 U.S.C. 641 of the Criminal statute, the one before us That STALEY, Judge (dissenting). Circuit here, requisite mention omitted Judge reversing judgment I concur in intent. In McLAUGHLIN’S criminal terpretation conviction, Act. I Court held But do of agree already defendants well de- Congress are entitled to a where uses terms judgment acquittal. statutory On law law the basis of the in the common fined us, presumed record judg- states, before to have in- reverse it will be commonly ments of grant apply conviction both defend- that the courts tended respect ants a new trial. accepted requirements to crim- itself, contrary inal direc- viewed context intent. “Absence of the criminal law generally, By may clear. satisfaction with wide- tion taken as apparent departure resort Congress, accepted definitions, ly intent of not as a States, majority injected v. into the Act a from them.” Morissette United meaning language supra, does not rea- 72 S.Ct. U.S. sonably import. doing, they no in- so Hobbs Act itself contains have cast Since the salutary dispense aside the rule that criminal stat- intends dication strictly required utes to be construed. mens See Unit- with the traditional rea Resnick, involved, ed States v. here the command of U.S. the crimes 209, 126, 57 S.Ct. seems clear.8 127. the Morissette case issue, only The it, crucial history see The of the bill legislative whether the employment, Congress intent to though highlights seek fact did not even the accompanied crimes, statutory violence or to create new but was threats of vio- tend lence, robbery is the in using kind of terms and extortion criminal state of mind the accepted punish meaning the generally intended to their in under the charge quate Kemble, Cir., 1952, 8. In United v. on criminal intent. the States 3 316, 197 F.2d instruction whatever was this instant case followed respect given jury Morissette case an criminal in em- which phasized importance vital of an ade- intent.

898 requisite Congressman clear that a felonious intent is a point criminal law. On Thus, robbery12 both Hohhs, say: of this to and extortion. of the author robbery defendants were held to have violated terms not “They extortion] [the courts, once, New not York extortion in collect statute have been construed ing they in union dues because but a times. The definitions lacked thousand requisite People v. copied New York felonious this bill intent. Gass are from man, 1943, 878, 885-886, substantially.”9 11900 45 Cong.Rec. 182 Code 91 Misc. 1944, App. 268 (1945). N.Y.S.2d affirmed 377, 1946, 173, Div. 51 N.Y.S.2d affirmed larceny-type basic All offenses 254, 295 154. N.Y. 66 N.E.2d 166A.L.R. wrongful similarity in that each involves not instant be al- convictions should Each is taking property from another. lowed to unless evi- stand the record shows however, different, in concerns that each corrupt, of a dence felonious intent —a dis- taking. itself with a different method honest defraud. Do intent —an intent larceny-type require one all But offenses good those who seek faith ingredient criminal intent. additional —a requisite wage reasonable have the States, supra, 342 v. See Morissette United Unfortunately, mens I think not. rea? 260-261, Larceny 72 U.S. at 240. prece- appear do direct there taking has been defined as the fraudulent Early' generally. dents in criminal law thing away of a without claim carrying however, available, English authorities right, converting with the intention of closely analogous for the situation of ato use of one other than owner with- commodity. forced Their view is sale out his 2 Criminal Law consent. Wharton’s whether the offense of is doubtful (12th ed.) Robbery been defined 1097 § one, by robbery is constituted where threats taking as a felonious and forcible compels force, goods sell him another to person another his money equal amount return for presence, will, his his violence goods. value 4 Bl.Comm.' of the § putting him in Wharton’s fear. ; 2 Law (Lewis’s ed.) Wharton’s Criminal one Law 1083. At least Criminal § English 1085. cases draw dis- § concept a fraudulent tak- embodies the ..of for a tinction between a forced sale consid- robbery. See Gai ing the definition of goods eration less than value corrupt A intent Code.Annot. 26-2501. § adequate for a fair and con- and such a sale necessary ingredient has been considered sideration. While former situation is La law extortion.10 Tour v. of common clearly robbery13 very it is much doubted 681, 693-695, Stone, 190 So. 139 Fla. robbery. whether latter situation can be 704, 709-710. Crown, Hawkins, in his Pleas of the sums “ of extortion and Since definitions up this in these view words: robbery the definitions were modeled after enormity be no such there seems to Code,11 decisions of the in the New York implied as is wrongdoer intention of statutes, construing York those Hawkins, New courts felony.” in the notion' of Pleas especial prior be of Crown, p. (7th ed.) at least Ch. § significance. Pleading York cases make it New See also Archbold’s Criminal Congressman McKinney’s Rob- Consol.Laws of N.Y.An- 9. See also statement Law, 2120; Cong.Rec. (1945). 40, Penal the extor- § not. c. sion.at id. tion statute bas been de- 10. Extortion common law justice Koerber, public People abuse of 244 N.Y. fined as an v. People taking by 79, 82; 153-154, v. Gar unlawful of- 155 N.E. consists of the any money ry, App.Div. 769, 1933, 237 263 N.Y.S. color of his ficer under office him, thing due of value that him, is due or before it is than or more Spen- 712; Simons, 2 P.C. 13. Rex v. East (Lewis’s ed.)' § 4 141 due. Bl.Gomm. Lovell, Ibid.; Case, Rex v. L.R. 8 ser’s (1881). Cong.Rec. 11900, 11906. 44 319 Q.B.Div. The L.T.N.S. 91 See robbery is forth York set New (4th American London ed. from the 7th instant be re- convictions should ed) .14 versed jury, properly because the if structed, certainly could most found physical violence was fact only that defendants’ intent to obtain threatened not be allowed to confuse should gainful employment a union man at picture. leg- If had enacted wage. reasonable The coercion of an em- making islation of com- the obstruction ployment relationship, unlike the defraud- by merce violence or threats of violence ing property, of another of his is not an end crime, properly these defendants would that the law condemns. stand were convicted. But no such offenses adopted The construction law; here the ma- ever made into should and jority far-reaching will have effects on the judicially legislate such offenses. The rights organized A labor. strike de- taking property felonious another signed employer pay higher to force an the use of violence or threats vio- wages employ lence, additional workers is ob- whether be denominated extortion viously designed money to obtain from the robbery,15 really compound felony, is employer, though even underlying person intent the actor has offended both the can hardly corrupt. be Any considered C.J.S., property victim. See sporadic outbreak of 1; 3; violence or threats of Am.Jur., Robbery, Robbery, § § State, violence in connection with such strike Montsdoca v. 84 Fla. might now be considered a violation 157, 159, 27 1291. If the actor So. A.L.R. long Hobbs Act so only person victim, as interstate commerce offends of his a mere battery trifling affected. A assault thus -becomes assault has been committed. felony punishable by imprison- serious only An property offense up twenty ment years. simple larceny. be a But if a defendant felony be convicted the serious of en- Any ‘higher strike wages to obtain con- gaging in violence or threats of violence stitutes a use of force prop- to obtain the property order another, to obtain the the erty Suppose of another. an additional ob- prosecution prove only that the ject of employ- such a strike is to force the engage defendant had the intent in vio- bargain er to with a union when another violence, lence or threats of but also that he organization already been certified respect had a felonious intent with representative employees, thus property corrupt victim’s intent —a rendering prac- the strike an —a unfair labor fraudulent intent. When we cast aside this tice. 158(b) U.S.C.A. § requisite, we, majority, second as does the (4) (C). suppose Or strike is in viola- effect, amend the statute us from before bargaining agreement. tion of collective designed punish one extortion and rob- examples These are both strikes bery affecting commerce punishing to one unlawful, at least in a certain sense.16 violence affecting or threats of violence might reasonably Both attempts termed obviously commerce. This task is for Con- property obtain of another gress the courts. wrongful use of force. If —not such strikes is, course, true that defendants regardless (12th ed.). Hence, oí threatening were indicted for to commit charged whether Kemble be with at- committing physical violence in' fur- tempted attempted robbery, extortion or plan obstruct weight English therance authorities robbery. dividing extortion —not cited above is not weakened. robbery extortion, line between how-- supra. Note See very ever, can be fine one. Where vio- “wrongful” used, threat of lence or the 16. No definition of violence is con- question of consent or lack of con- tained Act. The Anti- Kaeketeering largely fact, sent becomes Act of 1934 academic. contained the law, taking following (a) at common the felonious definition: “Sec. 3. As ‘wrongful’ from another threats used in this Act the term physical robbery, violence was considered means in violation of the criminal laws regardless of whether “consent” was or of ob- of the United States State Territory.” See tained. Wharton’s Criminal Law 48 Stat. commerce, should we instruction No. affect interstate would 6 was a fair statement law; complete have equivalent the Hobbs the offenses under either it granted. Act. been do I not intended think that BIGGS, part, Judge (concurring in Chief such effects under the far-reaching dissenting part). in Act. Such if results can be avoided we Perhaps my the terpret difference views prosecu- between imposing the Act on the as and felonious, those of Judge tion the McLAUGHLIN and proving burden a Judge expressed corrupt STALEY well those as as intent—an intent similar that opinion the majority in customarily respecting the de- required larceny-type in all of- fendant Only interpretation Kemble can be best illustrated fenses. such an is propounding questions giv- a harmony series and Morissette case. the ing what I think be answers would I do not think defendants are entitled opinions which the several the other judgment acquittal to a for there was judges require. of this This court would jury evidence from which a would have will serve what highlight also conceive I finding been warranted in that defendants charge to be errors employment. good did not in faith seek below. Whether the not defendants did or did seek First, is this not labor dis- or is this a employment properly question was a for the pute? Judge an- McLAUGHLIN would proper jury under instructions. The record “Yes”; say would- Judge swer STALEY approached reveals that Kemble Leonard “No”; to leave majority seems only at a time when the latter had a few effect question treats this and unanswered additional at R.C.A. cartons to unload Yet save for as fact immaterial Kemble hire that Leonard a man demanded ruling enough “It for majority states: day a wage for a of about Kem- If $10. payment money this case that ble knowing made that demand there were superfluous imposed, unwanted and only left, a few jury minutes’ work shows the evidence Kemble as services attempted would most have been certainly warranted here ob- enforce violent finding good Kemble did not faith of commerce the lan- is within struction employment man seek for a union but was the statute.” guage intendment of boldly tribute attempting levy from a employer. non-union Second, was Kemble’ssole to ob- ? Judge for union tain a jury If the finds that defendants were “Yes”. answer McLAUGHLIN would seeking employment faith, good say in Judge STALEY would effect dispute dispute was not a labor and Section question jury; this is a if Norris-LaGuardia is rendered be Kemble’s ac- answer in the affirmative inapplicable. 71, 29 See 47 Stat. U.S.C.A. prohibition tions are not within the 106; 73, 29 47 Stat. U.S.C.A. 113. A § statute; properly otherwise, jury would dispute between a would-be extortionist charge guilty, had the been have found him hardly his would-be victim can termed a say adequate. majority would dispute. stringent require- With the despite irrelevant “No” answer is “Yes” or removed, jury ments Section 6 think immediately quoted pre- proviso in returning have been warranted opinion. paragraph ceding verdict defendant union. grant Third, reverse the convictions evidence sustain a I would was there trial, jury that Kemble at- the trial court conclusion defendants new gain money prejudicial tempting to other fundamental er- committed helper’s job 'by for mem- instructing jury securing the re- than ror in Judge requested McLAUGH- mental Defendants’ his union?17 quired state. ber of unnecessary nec- final no issue to the existence to here state the essary clement, viz., conclusion facts sustain the the obstruction commerce purview Act since there obstructed. within “No”; pose union Judge was to obtain as a would LIN’S answer else, jury helper or say this is a for himself or for some one STALEY would would, simply attempting gain I question. majority opinion whether he to money think, property. immaterial ex- or The statute embraces hold issue to be cept respect proviso quoted in the all of As to to the this without differentiation. question: the fourth evi- supra. and last Is there paragraph, second dence to a conclusion that Kemble sustain Fourth, a con is there evidence to sustain attempted money truck to obtain from the attempted to clusion that Kemble obtain wrongful driver with his consent money from truck with his con driver My use actual or an- threatened force? wrongful sent use of actual or threat swer is in the affirmative. 1(c) ened force? of the See Section question The fourth last embraces July 3, 1946, 420, Stat. the definition major presented by ap- issue the instant majority opinion “extortion”. The would peal and since there is sufficient evidence to jury say question that this was a attempt- sustain conclusion that Kemble subject proviso to the to immedi referred money ed to obtain truck driver ately jury above and that the had resolved with his consent wrongful use of ac- against Judge Kemble. would STALEY force, thereby or tual threatened obstruct- jury question, proper rule in that this is a ing commerce, I vote to affirm Kem- would given jury, structions but that being to charge ble’s conviction been ade- charged below as to quate. requisite “criminal intent” within the purview States, Morissette v. jury United charge The court below in its 246, 240, viz., taking, U.S. 72 S.Ct. fraud expressly many did not deal with of these ulently attempted accomplished, as an questions though it seemed to be of the view Compare element of an extortion. our attempted gain money if Kemble de Kemble, Cir., cision in United States v. pay- either for himself or for his as 197 F.2d Judge STALEY states that ment for unloading from the necessary interpret is the Anti-Rack by wrongful truck driver use of actual or “ * * * eteering Act as imposing on the jury threatened force was entitled to prosecution the proving burden of a felon guilty charged. Kemble find crime ious, corrupt intent intent —an similar charge was correct as far as it went.18 customarily required larceny- in all legislative From an examination of the type Judge offenses.” McLAUGHLIN history of the 1946 in force when the hold Kemble’s act would not be defendants’ offenses were committed on by the long covered statute so as he was en May the dehates in the gaged, Judge as McLAUGHLIN concludes Representatives, particular House was, activity on behalf of his union. Cong.Rec. 11,900-11,902, those out in set As answers to the questions first three I conclusion irresistible that following. state the unnecessary the decision intended obviate of the Su- determine whether this was not a preme Court of the United States in United dispute pur- or whether 521, Kemble’s sole States v. Local 62 S.Ct. physi- An examination of the “Anti-Racketeer- to obstruct interstate ing” Act, July physical Act of in effect cal violence and threats of vio- May 13, 1947, 420-421, when as us lence. Insofar record before complained shows, the offenses of were commit- no motion was filed to make the ted shows that it is a substitute for the definite indictment more or certain original By Act of June 48 Stat. draw it out. the end the trial of charging 979-980. The indictment Kem- below and counsel for the case the court February treating parties ble and Local 1950, indictment were returned loosely drawn, pro- charging participation and on its face the acts charge conspiracy seems rather as an hibited the statute than adopt may conspiracy. Kemble and Local but be con- indictment charging interpretation strued indictment. Kemble Local 676 their participation, individually, plan in a commonly known public generally, Act, the 1934 on based crime, or of- misdemeanor the name of Act to Anti-Racketeering and to recast the * * * wrongs Private fense Sec- exception embodied obliterate the “ * ** individuals, unaffecting the injuries are not phrase 2(a), in the tion by actions public; are redressed these wages however, payment of cluding, * * *” Interna- damages Webster’s em- a bona-fide employer to a bona-fide * * * ed., word Dictionary, defines tional 2nd 3(b), ”, in Section ployee A violation “wrong” “Law. as follows: ‘property’, ‘mon- sentence, “The terms another; an invasion legal rights of of here- used ey’, considerations’ or ‘valuable party who right damage of to the wages to include deemed in shall not be it; Legally, private esp., a tort. suffers bona-fide employer to a paid by bona-fide a immediately af- injuries, civil wrongs are In the employee.” 48 Stat. See individuals; wrongs are public fecting “extortion” Congress defined the term Act the. affect and misdemeanors indi- crimes property from obtaining the case community.” seem to be It would by the induced his consent vidual word employing the therefore threatened or “wrongful” of actual use Anti-Racketeering wrongful in the amended by Con- Act was intended The 1946 force. very broad Congress made use every whether individual gress apply the word “unlawful” the use term. Cf. union aof acting behalf he was on “Robbery” in employed in the definition by his was obstructed not if commerce or 1(b). I Section violence. threats of or use of violence accept Judge McLAUGH- cannot therefore with- Congress mean to include did But statute, and interpretation LIN’S wrongs, public private and Act both in the opin- majority from the proviso quoted an in- simple crimes? If torts as well as paragraph of this in the ion second employment threatened seeking dividual put gloss or limitation to me to seems commerce, force, hut thereby obstructing intended which was the statute robbery attempted or nor committed neither majority assuming Congress. But generally de- as those crimes are extortion proper the court’s opinion’s proviso is law law, including the criminal in the fined to such a of reference charge was devoid York, fall within would his conduct of New consistency would therefore condition and Looking only proscription of the Act? charge to majority to hold the require the my answer to the face inadequate.19 been bring myself “Yes”, I cannot have to be but 1(c) in Section wrongful, Congressional word used believe that such was the “extortion”, the definition he de- Congressman Hancock when intent. strong art in the criminal bill which be- not a term of the scribed the injury; “An described as Wrong is as follows: law. the Act of stated came right.” tort; simply prevent Bouvier’s both designed violation “This bill is Revision, Dictionary, Rawle’s Third members members and non-union Law goes authority on to robbery The same making and extortion use sense, “wrong” obtaining wages its broad guise of say that under the “[I]n independ- every injury to another commerce.” Nu- includes interstate obstruction of injury.' causing com- congressmen the motive made similar ent of merous Hobbs, an in- wrong signifies the father Representative most usual sense ments. person plain statute, very jury committed made it another, rights de- “robbery” relative uncon- or to his “extortion” terms contract; wrongs proscribe and these intended to nected with in the Act were fined crimes, wrongs, private force public wrongs, committed with without injurious New York public wrong torts, A is an act which is and that the law of mere Though point respecting charge acquittal alternative ment of enough specifically by Kemble, to raise this was not asserted trial broad new ground judg- , motion first issue. proscription. furnished basis TELECHRON, CORP. v. TELICON Inc. Representative said, “They [the No. 10512. robbery have .been terms and extortion] 'but the courts not once construed Appeals States Court of United in this times. The definitions thousand Third Circuit. copied bill Code New York Argued February 5,1952. substantially.” See the statement also Representative specifically Robsion, and Sept. 9, 1952. Decided Representative Hancock, fol- remarks of lows, of rob- “The bill contains definitions

bery defi- follow the and extortion the State

nitions contained in the laws of ” Cong.Rec. of New York See 91

11,900-11,906. below, simplify attempting

The court complicated situation, legal and factual

charged jury in the terms of the stat- attempt

ute. made no define

meaning “wrongful” the term as used 1(c). no There was instruction

that the acts which Kemble had committed

had jury to be found to constitute the crime, attempted extortion,

crime .of tort,

distinguished private from a a mere

wrong. The court jury did instruct the necessary

as to the mens rea to sustain designated

offense In- the indictment. deed, the whatso- court made mention

ever of the mens or the rea criminal intent

which Kemble had to have had if was to guilty. found For I these reasons can- vote sustain Kemble’s conviction. agree

I Judge STALEY that Kem- requested charge

ble’s sixth was sufficient Though

to raise issues here discussed. request entirely apt was not or artistic necessary

nonetheless the substance was

presented. I Judge conclude therefore with

STALEY that a new trial should be

as to Kemble. agree expressed with the conclusion however, majority, that there insuf- bring

ficient evidence to the Local within provisions Section of the Norris- light

LaGuardia decision Court in Broth- Carpenters erhood of of Amer- Joiners States, 39S,

ica v. United 67 Therefore, 91 L.Ed. 973. I concur in 10,423 judgment view that as to No. judgment

should be reversed and ac-

quittal entered as to the Local.

Case Details

Case Name: United States v. Kemble

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 4, 1952

Citation: 198 F.2d 889

Docket Number: 10423_1

Court Abbreviation: 3rd Cir.