198 F.2d 889 | 3rd Cir. | 1952
Lead Opinion
This appeal presents important questions of the construction and application of the Act of July 3, 1946,
The evidence showed that Leonard, a truck driver employed by Doehler-Jarvis Corporation of Pottstown, Pennsylvania, transported a shipment of merchandise by motor truck from the Pottstown plant of 'his employer to Camden, New Jersey, where he attempted to make delivery of part of the merchandise at the RCA-Victor plant before proceeding elsewhere. Leonard had unloaded most of the RCA consignment when Kemble interposed. There is adequate proof that Kemble, after ascertaining that Leonard was not a member of or cleared by Kemble’s union, stopped Leonard from unloading the interstate shipment and employed actual and threatened violence against Leonard and the property in his possession.
The evidence of Kemble’s purpose was supplied by the truck driver Leonard himself and b}'’ Earle Lafferty who was receiving the shipment for the consignee as it was unloaded by Leonard. Lafferty testified as follows:
“ * * * he [Kemble] asked for a union card or book, and the man [Leonard] didn’t have any, and he said, You will have to have a helper from the local unload the truck, and there would be a day’s wages for a man which was $10.00.”
The driver, Leonard, testified to the same effect:
“He [Kemble] told me that I had to put a union man on the truck to unload. I said‘What for?’ He said‘Because the union rules it.’ I said ‘I don’t believe so. We are delivering our own stuff and the union rules say we can.’ He said ‘You will have to hire another man.’ I forget offhand what it was. It was in the neighborhood of $10. I said T am not authorized to pay him * * *
The defendants offered no proof or rebuttal whatever. Thus, on the issue of purpose it was reasonable for the jury to conclude that Kemble, understanding that Leonard did not want or need a helper and was not authorized to employ one, nevertheless forcibly insisted that Leonard pay $10, described as a day’s wages, for a supernumerary to do what Leonard himself was paid to do and was accomplishing when Kemble intervened.
Is violence with such design within the statutory meaning of extortion defined in the Hobbs Act as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force * * * ” ?
Certainly, as a matter of semantics, the quoted words of the statute, “obtaining of property from another”, are broad enough to cover Kemble’s objective. And an examination of the legislative history of the statute convinces us that Congress intended such comprehensive coverage.
Both the original “Anti-Racketeering Act” of 1934, 48 Stat. 979, and the amendatory reenactment of 1946, 60 Stat. 420, which controls the present indictments, are criminal sanctions directed against interference with interstate commerce by coercive conduct in the nature of extortion. Within this area the original Act proscribed, among other things, the use of threats or force to obtain, “the payment of money * * * not including, however, the payment of wages by a bona-fide employer to a bona-fide employee”. 48 Stat. 979, 980. The construction of this exception became a problem for the courts. In United States v. Local 807, 1942, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004, the Supreme Court analyzed this exception in considerable detail. One of its conclusions was that “ * * * an outsider who ‘attempts’ unsuccessfully by violent means to achieve the status of an employee and to secure wages for services falls within the exception. And where * * * the offense charged is conspiracy to violate the section, the defendants are entitled to immunity if their objective is to become bona fide employees and to obtain wages in that capacity, even though they may fail of their purpose”. 315 U.S. at page 531, 62 S.Ct. at page 646, 86 L.Ed. 1004.
In 1945, the House Committee on the Judiciary reported the bill which became the 1.946 revision of the statute. Beyond formal reorganization and improvements in language the principal change accomplished by the new bill was the elimination of the exception the effect of which had been stated in the Local 807 case. More particularly, the 1946 reenactment covered interference with interstate commerce by actual or attempted “extortion” and defined “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force * * But, different from the original statute no exception was made for cases where the property involved should be money demanded to be paid in the form of wages. This change was deliberate. The committee report shows that Congress had the original exception and its effect foremost in mind, for that report sets forth in full text the Supreme Court opinion in United States v. Local 807 construing the controversial exception, and little else. And throughout the ensuing debate on the House floor, proponents of the bill talked principally about the undesirable narrowing of the original statute which had resulted from judicial construction of the exception. 91 Cong.Rec. 11899-11922 (1945). The debate was opened for the proponents of the bill with an explanatory statement by Congressman Hancock that “This bill is designed simply to prevent both union members and nonunion people from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce.” 91 Cong.Rec. 11900. Speaker after speaker expressed essentially the same view of the purpose and effect of the bill. Equally instructive was the effort of Congressman Celler to amend the bill from the floor by inserting a stipulation that extorted property should not include “wages paid by a bona-fide employer to a bona-fide employee”. 91 Cong. Rec. 11913-11917. Not only was this amendment defeated but the debate on it made clear the prevailing view that such solicitude toward the forced payment of wages would destroy the principal intended effect of the bill and preserve the strictures of the Local 807 case.
In these circumstances, the conclusion seems inescapable that Congress intended that the language used in the 1946 statute be broad enough to include, in proper cases, the forced payment of wages. We say “in proper cases” advisedly. For it is not necessary that we here consider the great variety of circumstances in which coercion may be involved in the payment of wages.
A final observation on this phase of the case. We have considered that the original “Anti-Racketeering” Act expressly preserves “the rights of bona-fide labor organizations lawfully carrying out the legitimate objects thereof * * * ”, and that by fair inference the Hobbs Act does the same thing. But the word “lawfully” is an important limitation. It is all important here since no federal or state sanction makes Kemble’s violent conduct lawful.
This disposes of the principal contention of Kemble. He has advanced others concerning the admission of evidence and the content of the prosecutor’s summation. We are not persuaded that any of these contentions is well founded. We find no error in the conviction of Kemble.
The case against the union involves the additional question whether the organization was criminally responsible for Kem-ble’s acts. Proof of responsibility had to meet a statutory standard imposed by Section 6 of the Norris-LaGuardia Act, 29 U.S.C.A. § 106, as recently construed by the Supreme Court in United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973.
It is not disputed that Section 6 of the Norris-LaGuardia Act applies to proceedings under the Hobbs Act.
It 'is noteworthy that the Court did not deal with “participation” by the labor organization as a category distinct from “authorization” or “ratification”. The reason seems clear. In the Carpenters case, as in this case, an organization was indicted solely on the basis of acts of its agents. No effort was made to show any “participation” of the organization except insofar as acts of agents may have been authorized. Thus, demonstration that there was no sufficient proof of union “authorization” by the same token negatived union “participation”. Any different result would have required the invocation of fiction which has no proper place in the imposition of punishment.
There was a dissent in the Carpenters case. The dissenting Justices pointed out that, under the Court’s construction of Section 6, responsibility of a union for acts of its officers or members would be limited for all practical purposes to cases where the wrongdoing in question or similar wrongdoing had been authorized or approved by vote at a union meeting or some equally clear manifestation of group will. The dissenting Justices seem to have believed that such doctrine as normally limits ■ criminal responsibility for acts of agents, applied in conjunction with the normal requirement of proof of each essential element of a
But we must take the law as the Supreme Court finds it. For our purposes the dissent in the Carpenters case but emphasizes the stringency of the rule we are required to follow. This strict rule precludes a conviction here.
In the view most favorable to the prosecution, the evidence in this case showed merely that the wrongdoer was a business agent of the union; that he was charged by the union with responsibility for checking upon and making appropriate representations about the union status of persons unloading trucks; that four other unidentified persons participated with him in the wrongdoing in question; and that at the scene of the wrongdoing, a few minutes after its occurrence, the secretary-treasurer of the union threatened similar “trouble” for another employer if it should “not live up to the union contract”. There was no other evidence tending in any way to show relationship between the union and the violence of its business agent.
As concerns ratification, it does not even appear how, when or whether the union was informed of its agent’s misconduct. It is obvious that the threat by the secretary-treasurer a few minutes after the wrongful act was no clear proof, if proof at all, of approval of wrongdoing by the organization.
The case for prior authorization is no better. Only by invoking the tort conception of respondeat superior can the proof of the business agent’s office and duties have been made a basis of union responsibility. At most it can be said that in an effort to accomplish a lawful mission assigned by the union the business agent acted in an unlawful way not required by his mission and not shown to have been authorized by his principal. The case is essentially like that where an employee, instructed merely to collect a bill, assaults a non-paying debtor. Principles of civil liability may permit the imposition of responsibility on the employer who has in no way assented to the wrong. Son v. Hartford Ice Cream Co., 1925, 102 Conn. 696, 129 A. 778. But cf., Martin v. Curran, 1951, 303 N.Y. 276, 101 N.E.2d 683. However, even normal criminal responsibility does not extend that far. In this regard, the criminal law doctrine is so well settled that its exposition in contemporary judicial opinions is rare. However, some years ago in Nobile v. United States, 3 Cir., 1922, 284 F. 253, 255, this court did have occasion to point out that “Criminal liability of a principal or master for the act of his agent or servant does not extend so far as his civil liability. He cannot be held criminally for the acts of his agent, contrary to his orders, and without authority, express or implied, merely because it is in the course of his business and within the scope of the agent’s employment, though he might be liable civilly.” See also United States v. Food and Grocery Bureau, D.C., S.D.Cal., 1942, 43 F.Supp. 966, 971.
It follows that the evidence here does not meet even the standard which the Justices dissenting in the Carpenters case would have imposed. The added stricture of the prevailing construction .of the Norris-LaGuardia Act is not needed to establish the failure of proof in this case. But it does serve to make that failure clear beyond doubt. Moreover, this special requirement of “clear proof of * * * actual authorization” makes it noteworthy that the district judge in sentencing the union remarked that the question “Whether or not the union ratified or directed this act on the part of Kemble and O’Neall was from the factual standpoint a close one.” And the United States Attorney who argued this appeal conceded with commendable candor and obj ectivity that the evidence against the union was not particularly strong. Of course, we are not bound by these impressions of others. But they confirm our conviction that the case against the union contained no “clear proof of * * * actual authorization”.
In appeal No. 10,422 the judgment and sentence will be affirmed. In appeal No. 10,423, the judgment will be reversed and the cause remanded to the district court with direction to enter a judgment of acquittal.
. 60 Stat. 420,18 U.S.C. § 420d (1946 ed.).
In 1948, between the occurrence of the offence here charged and the indictment, this statute was superseded and its substance reenacted! without consequential change as Section 1951 of the new Title
. “Sec. 5. Whoever commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of section 2 shall he guilty of a felony.”
Section 2 provides:
“Whoever in any way or degree obstructs, delays, or affects commerce, or the movement of any article or commodity in commerce, by robbery or extortion, shall be guilty of a felony.”
. “Sec. 1. As used in this title—
* * * *
“(c) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
. The Hobbs Act itself reaffirms Section 6 of the Norris-LaGuardia Act and declares that it is in no way modified. 60 Stat. 420, 421.
Dissenting Opinion
(dissenting).
The proposition presented by the particular facts before us and which cannot be watered down is whether the attempted unionization of a trucking corporation by a bona fide labor organization, which had for its sole objective the employment of a qualified union helper to unload the truck at the platform of a corporation .having a closed shop agreement with the union, and which was accompanied by violence, is within t'he scope of the Hobbs Act of 1946 which is the successor of the original Federal Anti-Racketeering Act of 1934. This is unqualifiedly a labor dispute in which the union was participating or interested as is shown by the insistence of the majority opinion on t'he quality of proof as to the union, which of course is applicable only in a labor dispute. Section 6, Norris-LaGuardia Act. There is nothing in this case to justify the statement that the defendant Kemble tried to compel payment from the trucking company. Kemble’s entire purpose, as far as this record goes, was to obtain the employment of a competent union helper by the trucker
From the scant facts it is inferable that the defendant union had a contract with RCA-Victor whereby the unloading of deliveries to the latter’s Camden plant was to be performed by members of that union. The contract was not in evidence. That there was some such agreement appears from the Government testimony and is not contradicted. The defense rested without affirmatively presenting any evidence, relying on its motion for acquittal. Defendant Kemble, it will be recalled, was the union’s business agent. The evidence at most showed that the defendants sought to induce Doehler-Jarvis Corporation, a trucking concern, to hire a member of the union as a helper to take care of that company’s unloading of its delivery at RCA and that in the course of the episode there was a threat or threats by Kemble and also that the air was let out of the front tires of the truck involved.
Admittedly, for the defendants to be convicted under the indictment they must have been shown to have been guilty of planning to obtain the property of the trucking corporation with its “ * * * consent induced by wrongful use of actual or threatened force, violence or fear * * The majority opinion flatly states that because there was evidence of violence and threats and because the 1946 law does not contain the exception that appeared in the 1934 Act regarding payment of wages by a bona fide employer to a bona fide employee, Kem-ble is guilty under the Hobbs Act indictment against him. The sole reason for this holding is the legislative history of that Act. The proposed anti-racketeering legislation which later resulted in the Hobbs Act
The Supreme Court in the Local 807 opinion had no occasion to and did not pass upon the problem confronting us, namely, whether, absent the 1934 Act exception, the present situation is to be construed as viola-tive of the federal anti-racketeering statute or specifically, is it a plan or purpose to extort the property of the trucking company. In the 807 decision the Supreme Court of necessity considered, construed and applied the exception to the statute which at that time existed. But there is not the slightest suggestion in the opinion that without the exception the court would have held the present facts within the 1934 federal law. Indeed, carefully reading that decision, the definite impression conveyed is to the contrary.
Admittedly the Hobbs Act is just as exclusionary of legitimate labor objectives as was the 1934 law. See Title II of the Hobbs Act. 60 Stat. 420. The original Act, even without its exception, did not pretend to characterize such an obj ective as the instant one, though accompanied by violence, as attempted extortion. Unquestionably the exception did specifically eliminate from the scope of the 1934 Act the payment of wages by a bona fide employer to a bona fide employee. That provision was inserted in an excess of caution because it was feared that without it serious injury to labor might result. United States v. Local 807, supra, 315 U.S. at page 529, 62 S.Ct. 642, 86 L.Ed. 1004. However, the statute itself was never intended to cover the conceded situation before us for it was aimed directly at “ * * * the elimination of ter-roristic activities by professional gangsters * * United States v. Local 807, supra, 315 U.S. at page 530, 62 S.Ct. at page 646, 86 L.Ed. 1004. The Supreme Court in that same opinion quotes the Senate report on the legislation pending at that time which states its purpose to be “ * * * to close gaps in existing Federal laws and to render more difficult the activities of predatory criminal gangsters of the Kelly and Dillinger types.”
We are dealing with a problem peculiar to labor. It is important to have in mind that it arose prior to the Taft-Hartley statute, 29 U.S.C.A. § 141 et seq., where for-the first time Congress imposed sanctions upon unfair labor practices by unions. It arose from a reputable union’s genuine attempt to organize a trucking corporation. The sole purpose of the defendants was to procure work for capable union men. The employment sought was neither spurious nor superfluous. In this instance it was only because the driver of the truck was not a
The above construction does not mean that the Hobbs Act condones violence just as long as the violence is connected with a legitimate goal. It means rather that under those facts the violence or other misconduct is left to state supervision as it should be. As the Supreme Court said in the Local 807 opinion, 315 U.S. at page 536, 62 S.Ct. at page 648, 86 L.Ed. 1004, “The power of state and local authorities to punish * * * violence is beyond question. It is not diminished or affected by the circumstance that the violence may be the outgrowth of a labor dispute. The use of violence disclosed by this record is plainly subject to the ordinary criminal law.”
I would therefore reverse the judgments of conviction as to both defendants.
While I do not think the Government has made out a case within the Hobbs Act against the defendants, I do think the proofs satisfy the requirement of the Norris-LaGuardia Act with reference to the union’s responsibility for Kemble’s acts and conduct. Under those proofs if a violation of the Hobbs Act had been established the trial court would have been justified in submitting the indictment of the union to the jury. In other words, there was in evidence the needed “clear proof” that the union actually participated in or .authorized what Kemble did and said and what happened under his direction. Section 6 of the Norris-LaGuardia Act, as construed by the Supreme Court in United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973, does not impose practically unrealizable conditions which must be met before a union may be held to liability. The
The evidence below, including justifiable inferences from it, was sufficient to satisfy the ordinary intelligent conscientious juror, of the union’s authorization of and participation in Kemble’s activities during the critical period. Section 6 of the Norris-LaGuardia Act requires no more than that.
. See the evidence of Kemble’s purpose quoted in the majority opinion. In addition, Lafferty testified that “Mr. Kemble wanted him [the truck driver] to go down to the local and get a local man, a helper to unload the truck, * * An KB.I. agent testified that “Kemble said that he told the driver that he could not unload without a union book because it was a closed shop at ROA, * * *. He said that they have a lot of trouble with the Doehler-Jarvis trucks because they were non-union and were trying to unload without union help.”
. The District Attorney, in concluding the opening remarks of Ms summation, said to the jury: “How many of you would get away with it if you went to a truck driver who came, even in to your private place of business, and you threatened to beat Mm up if he didn’t hire somebody you wanted him to liire to unload a truoh?” (Emphasis supplied).
. See S.Rep.No.1440, 73d Congress, Second Session.
Dissenting Opinion
(dissenting).
I concur in Judge McLAUGHLIN’S interpretation of the Hobbs Act. But I do not agree that defendants are entitled to a judgment of acquittal. On the basis of the record before us, I would reverse the judgments of conviction and grant both defendants a new trial.
The statute itself, viewed in the context of the criminal law generally, is clear. By resort to the apparent intent of Congress, the majority has injected into the Act a meaning which its language does not reasonably import. In so doing, they have cast aside the salutary rule that criminal statutes are to be strictly construed. See United States v. Resnick, 1936, 299 U.S. 207, 209, 57 S.Ct. 126, 81 L.Ed. 127.
The crucial issue, as I see it, is whether the intent to seek employment, even though accompanied by violence or threats of violence, is the kind of criminal state of mind Congress intended to punish under the Hobbs Act. At the outset we are confronted with the obvious problem that the Act itself sets forth no statement as to any requisite mans rea. According to the bare words of the statute, anyone who obtains property from another by the wrongful use of force, violence or fear in such a way as to obstruct commerce has committed a violation of the Act and is subject to a maximum penalty of twenty years’ imprisonment. Apparently one would be guilty of a violation of the Act even if his only intent in wrongfully using force were to borrow property from another, so long as the act affected commerce. Suppose Kemble had demanded that Leonard lend him the truck for an hour so that Kemble could perform union duties. Would this have constituted a violation of the Hobbs Act?
The recent decision of the Supreme Court in Morissette v. United States, 1952, 342 U.S. 246, 72 S.Ct. 240, should control here. The defendant there was convicted of stealing government property in violation of Section 641 of the Criminal Code, 18 U.S.C. § 641. That statute, as the one before us here, omitted any mention of a requisite criminal intent. In reversing the judgment of conviction, the Supreme Court held that where Congress uses terms already well defined in the common law and statutory law of the states, it will be presumed to have intended that the courts apply the commonly accepted requirements with respect to criminal intent. “Absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, supra, 342 U.S. at page 263, 72 S.Ct. 250. Since the Hobbs Act itself contains no indication that Congress intends to dispense with the traditional mens rea required in the crimes here involved, the command of the Morissette case seems clear.
The legislative history of the bill only highlights the fact that Congress did not intend to create new statutory crimes, but was using the terms robbery and extortion in their generally accepted meaning in the
All the larceny-type offenses have a basic similarity in that each involves a wrongful taking of property from another. Each is different, however, in that each concerns itself with a different method of taking. But all the larceny-type offenses require one additional ingredient — a criminal intent. See Morissette v. United States, supra, 342 U.S. at page 260-261, 72 S.Ct. 240. Larceny has been defined as the fraudulent taking and carrying away of a thing without claim of right, with the intention of converting it to a use of one other than the owner without his consent. 2 Wharton’s Criminal Law § 1097 (12th ed.) Robbery has been defined as a felonious and forcible taking of the property of another from his person or in his presence, against his will, by violence or by putting him in fear. 2 Wharton’s Criminal Law § 1083. At least one statute embodies the concept ..of a fraudulent taking in the definition of robbery. See Gai Code.Annot. § 26-2501. A corrupt intent has been considered a necessary ingredient of common law extortion.
Since the definitions of extortion and robbery were modeled after the definitions in the New York Code,
The instant convictions should not be allowed to stand unless the record shows evidence of a felonious intent — a corrupt, dishonest intent — an intent to defraud. Do those who seek employment in good faith for a reasonable wage have the requisite mens rea? I think not. Unfortunately, there do not appear to be any direct precedents in criminal law generally. Early' English authorities are available, however, for the closely analogous situation of a forced sale of a commodity. Their view is that it is doubtful whether the offense of robbery is constituted where one, by threats of force, compels another to sell him goods in return for money equal in amount to the value of the goods. 4 Bl.Comm.' § 243 (Lewis’s ed.) ; 2 Wharton’s Criminal Law § 1085. The English cases draw the distinction between a forced sale for a consideration less than the value of the goods and such a sale for a fair and adequate consideration. While the former situation is clearly robbery
The fact that physical violence was threatened should not be allowed to confuse the picture. If Congress had enacted legislation making the obstruction of commerce by violence or threats of violence a crime, these defendants would properly stand convicted. But no such offenses were ever made into law; and this court should not judicially legislate such offenses. The felonious taking of property from another by the use of violence or threats of violence, whether it be denominated extortion or robbery,
The instant convictions should be reversed because the jury, if properly instructed, could most certainly have found that defendants’ only intent was to obtain gainful employment for a union man at a reasonable wage. The coercion of an employment relationship, unlike the defrauding of another of his property, is not an end that the law condemns.
The construction here adopted by the majority will have far-reaching effects on the rights of organized labor. A strike designed to force an employer to pay higher wages or employ additional workers is obviously designed to obtain money from the employer, even though the underlying intent can hardly be considered corrupt. Any sporadic outbreak of violence or threats of violence in connection with such strike might now be considered a violation of the Hobbs Act so long as interstate commerce is affected. A trifling assault thus -becomes a serious felony punishable by imprisonment up to twenty years.
Any strike to obtain ‘higher wages constitutes a use of force to obtain the property of another. Suppose an additional object of such a strike is to force the employer to bargain with a union when another labor organization has already been certified as the representative of the employees, thus rendering the strike an unfair labor practice. 61 Stat. 140, 29 U.S.C.A. § 158(b) (4) (C). Or suppose the strike is in violation of a collective bargaining agreement. These are both examples of strikes which are unlawful, at least in a certain sense.
I do not think that Congress intended such far-reaching effects under the Hobbs Act. Such results can be avoided if we interpret the Act as imposing on the prosecution the burden of proving a felonious, corrupt intent — an intent similar to that customarily required in all larceny-type offenses. Only such an interpretation is in harmony with the Morissette case.
I do not think the defendants are entitled to a judgment of acquittal for there was evidence from which a jury would have been warranted in finding that defendants did not in good faith seek employment. Whether the defendants did or did not seek employment was properly a question for the jury under proper instructions. The record reveals that Kemble approached Leonard at a time when the latter had only a few additional cartons to unload at R.C.A. Yet Kemble demanded that Leonard hire a man for a day at a wage of about $10. If Kem-ble made that demand knowing there were only a few minutes’ work left, the jury would most certainly have been warranted in finding that Kemble did not in good faith seek employment for a union man but was boldly attempting to levy tribute from a non-union employer.
If the jury finds that defendants were not seeking employment in good faith, the dispute was not a labor dispute and Section 6 of the Norris-LaGuardia Act is rendered inapplicable. See 47 Stat. 71, 29 U.S.C.A. § 106; 47 Stat. 73, 29 U.S.C.A. § 113. A dispute between a would-be extortionist and his would-be victim can hardly be termed a labor dispute. With the stringent requirements of Section 6 removed, I think a jury would have been warranted in returning a verdict against defendant union.
I would reverse the convictions and grant defendants a new trial, for the trial court committed prejudicial and fundamental error in not instructing the jury as to the required mental state. Defendants’ requested instruction No. 6 was a fair statement of the law; either it or an equivalent should have been granted.
. In United States v. Kemble, 3 Cir., 1952, 197 F.2d 316, this court followed the Morissette case in an opinion which emphasized the vital importance of an adequate charge on criminal intent. In the instant case no instruction whatever was given to the jury with respect to criminal intent.
. See also statement of Congressman Robsion.at 91 Cong.Rec. 11906 (1945).
. Extortion at common law bas been defined as an abuse of public justice which consists of the unlawful taking by an officer under color of his office any money or thing of value that is not due him, or more than is due him, or before it is due. 4 Bl.Gomm. § 141 (Lewis’s ed.)'
. See 91 Cong.Rec. 11900, 11906. The New York robbery statute is set forth at 39 McKinney’s Consol.Laws of N.Y.An-not. c. 40, Penal Law, § 2120; the extortion statute is at id. § 850.
. People v. Koerber, 1926, 244 N.Y. 147, 153-154, 155 N.E. 79, 82; People v. Garry, 1933, 237 App.Div. 769, 263 N.Y.S. 288.
. Rex v. Simons, 2 East P.C. 712; Spenser’s Case, Ibid.; Rex v. Lovell, L.R. 8 Q.B.Div. 185, 44 L.T.N.S. 319 (1881).
. It is, of course, true that defendants were indicted for threatening to commit and committing physical violence in' furtherance of a plan to obstruct commerce by extortion — not robbery. The dividing line between robbery and extortion, how-ever, can be a very fine one. Where violence or the threat of violence is used, the question of consent or lack of consent becomes largely academic. In fact, at common law, the felonious taking of property from another by threats of physical violence was considered robbery, regardless of whether “consent” was obtained. See 2 Wharton’s Criminal Law § 1093 (12th ed.). Hence, regardless oí whether Kemble be charged with attempted extortion or attempted robbery, the weight of the English authorities cited above is not weakened.
, See Note 7, supra.
. No definition of “wrongful” is contained in the Hobbs Act. The Anti-Kaeketeering Act of 1934 contained the following definition: “Sec. 3. (a) As used in this Act the term ‘wrongful’ means in violation of the criminal laws of the United States or of any State or Territory.” 48 Stat. 979, 980.
Concurrence in Part
(concurring in part, dissenting in part).
Perhaps the difference between my views and those of Judge McLAUGHLIN and Judge STALEY as well as those expressed in the majority opinion respecting the defendant Kemble can be best illustrated by propounding a series of questions and giving what I think would be the answers which the several opinions of the other judges of this court would require. This will also serve to highlight what I conceive to be the errors in the charge of the court below.
First, is this or is this not a labor dispute? Judge McLAUGHLIN would answer “Yes”; Judge STALEY would- say “No”; the majority opinion seems to leave this question unanswered and in effect treats it as immaterial save for the fact that the majority ruling states: “It is enough for this case * * * that payment of money for imposed, unwanted and superfluous services such as the evidence shows Kemble attempted to enforce here by violent obstruction of commerce is within the language and intendment of the statute.”
Second, was Kemble’s sole purpose to obtain employment for a union helper ? Judge McLAUGHLIN would answer “Yes”. Judge STALEY would say in effect that this is a question for the jury; that if the answer be in the affirmative Kemble’s actions are not within the prohibition of the statute; otherwise, the jury properly would have found him guilty, had the charge been adequate. The majority would say that a “Yes” or “No” answer is irrelevant despite the proviso quoted in the immediately preceding paragraph of this opinion.
Third, was there evidence to sustain a conclusion by the jury that Kemble was attempting to gain money or property other than 'by securing a helper’s job for a member of his union?
Fourth, is there evidence to sustain a conclusion that Kemble attempted to obtain money from the truck driver with his consent by the wrongful use of actual or threatened force? See Section 1(c) of the Act of July 3, 1946, 60 Stat. 420, the definition of “extortion”. The majority opinion would say that this was a question for the jury subject to the proviso referred to immediately above and that the jury had resolved it against Kemble. Judge STALEY would rule that this is a jury question, proper instructions being given to the jury, but that the court below should have charged as to the requisite “criminal intent” within the purview of Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, viz., a taking, fraudulently attempted or accomplished, as an element of an extortion. Compare our decision in United States v. Kemble, 3 Cir., 197 F.2d 316. Judge STALEY states that it is necessary to interpret the Anti-Racketeering Act as “ * * * imposing on the prosecution the burden of proving a felonious, corrupt intent — an intent similar to that customarily required in all larceny-type offenses.” Judge McLAUGHLIN would hold that Kemble’s act would not be covered by the statute so long as he was engaged, as Judge McLAUGHLIN concludes he was, in activity on behalf of his union.
As answers to the first three questions I state the following. It is unnecessary to determine whether this was or was not a labor dispute or whether Kemble’s sole purpose was to obtain employment as a union helper for himself or for some one else, or whether he was simply attempting to gain money or property. The statute embraces all of this without differentiation. As to the fourth and last question: Is there evidence to sustain a conclusion that Kemble attempted to obtain money from the truck driver with his consent by the wrongful use of actual or threatened force? My answer is in the affirmative.
The fourth and last question embraces the major issue presented by the instant appeal and since there is sufficient evidence to sustain the conclusion that Kemble attempted to obtain money from the truck driver with his consent by the wrongful use of actual or threatened force, thereby obstructing commerce, I would vote to affirm Kem-ble’s conviction had the charge been adequate.
The court below in its charge to the jury did not deal expressly with many of these questions though it seemed to be of the view that if Kemble attempted to gain money either for himself or for his union as payment for an unloading helper from the truck driver by wrongful use of actual or threatened force the jury was entitled to find Kemble guilty of the crime charged. The charge was correct as far as it went.
From an examination of the legislative history of the 1946 Act, in force when the defendants’ offenses were committed on May 13, 1947, and of the dehates in the House of Representatives, in particular those set out in 91 Cong.Rec. 11,900-11,902, the conclusion is irresistible that Congress intended to obviate the decision of the Supreme Court of the United States in United States v. Local 807, 315 U.S. 521, 62 S.Ct.
The word wrongful, used in Section 1 (c) of the Act, the definition of “extortion”, is not a term of strong art in the criminal law. Wrong is described as “An injury; a tort; a violation of right.” 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, page 3500. The same authority goes on to say that a “wrong” “[I]n its broad sense, includes every injury to another independent of the motive causing the injury.' In its most usual sense wrong signifies an injury committed to the person or property of another, or to his relative rights unconnected with contract; and these wrongs are committed with or without force * * * A public wrong is an act which is injurious to the public generally, commonly known by the name of crime, misdemeanor or offense * * * Private wrongs * * * are injuries to individuals, unaffecting the public; these are redressed by actions for damages * * *” Webster’s International Dictionary, 2nd ed., defines the word “wrong” as follows: “Law. A violation of the legal rights of another; an invasion of right to the damage of the party who suffers it; esp., a tort. Legally, private wrongs are civil injuries, immediately affecting individuals; public wrongs are crimes and misdemeanors which affect the. community.” It would seem to be the case therefore that in employing the word wrongful in the amended Anti-Racketeering Act Congress made use of a very broad term. Cf. the use of the word “unlawful” employed in the definition of “Robbery” in Section 1(b).
But did Congress mean to include within the Act both private and public wrongs, simple torts as well as crimes? If an individual in seeking employment threatened force, thereby obstructing commerce, hut neither committed nor attempted robbery or extortion as those crimes are generally defined in the criminal law, including the law of New York, would his conduct fall within the proscription of the Act? Looking only to the face of the statute my answer would have to be “Yes”, but I cannot bring myself to believe that such was the Congressional intent. Congressman Hancock when he described the purpose of the bill which became the Act of 1946, stated as follows: “This bill is designed simply to prevent both union members and non-union members from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce.” Numerous congressmen made similar comments. Representative Hobbs, the father of the statute, made it very plain that the terms “robbery” and “extortion” as defined in the Act were intended to proscribe public wrongs, crimes, not private wrongs, mere torts, and that the law of New York
The court below, attempting to simplify a complicated legal and factual situation, charged the jury in the terms of the statute. It made no attempt to define the meaning of the term “wrongful” as used in Section 1(c). There was no instruction that the acts which Kemble had committed had to be found by the jury to constitute the crime .of attempted extortion, a crime, as distinguished from a tort, a mere private wrong. The court did not instruct the jury as to the mens rea necessary to sustain the offense designated in the indictment. Indeed, the court made no mention whatsoever of the mens rea or the criminal intent which Kemble had to have had if he was to be found guilty. For these reasons I cannot vote to sustain Kemble’s conviction. I agree with Judge STALEY that Kem-ble’s sixth requested charge was sufficient to raise the issues here discussed. Though the request was not entirely apt or artistic nonetheless the necessary substance was presented. I conclude therefore with Judge STALEY that a new trial should be had as to Kemble.
I agree with the conclusion expressed by the majority, however, that there is insufficient evidence to bring the Local within the provisions of Section 6 of the Norris-LaGuardia Act, 47 Stat. 71, in the light of the decision of the Supreme Court in Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 39S, 67 S.Ct. 775, 91 L.Ed. 973. Therefore, I concur in the view that the judgment as to No. 10,423 should be reversed and a judgment of acquittal entered as to the Local.
. It is unnecessary to here state the final clement, viz., the obstruction of commerce within the purview of the Act since there is no issue as to the existence of the necessary facts to sustain the conclusion that commerce was obstructed.
. An examination of the “Anti-Racketeering” Act, Act of July 3, 1946, in effect on May 13, 1947, 60 Stat. 420-421, when the offenses complained of were committed shows that it is a substitute for the original Act of June 18, 1934, 48 Stat. 979-980. The indictment charging Kem-ble and Local 676, returned February 15, 1950, is loosely drawn, and on its face seems to charge a conspiracy against Kemble and Local 676 but may be construed as charging Kemble and Local 676 with participation, individually, in a plan to obstruct interstate commerce by physical violence and threats of physical violence. Insofar as the record before us shows, no motion was filed to make the indictment more definite or certain or to draw it out. By the end of the trial of the case the court below and counsel for the parties were treating the indictment as charging participation in the acts prohibited by the statute rather than as an indictment for a conspiracy. I adopt their interpretation of the indictment.
. Though this point respecting the charge was not specifically asserted by Kemble, the first ground of the motion for judgment of acquittal or in the alternative for a new trial is broad enough to raise this issue. ,
