United States v. Nicholas A. Stirone

symptoms disclosed incipient plaintiff of UNITED STATES America plant employer’s rays X taken granted de- hospital. The below summary judgment, STIRONE, Appellant. A. Nicholas motion for fendant’s decision, unreported memorandum in an No. 12543. employer’s ground lia- upon that the Appeals United States Court of governed solely pro- bility was Third Circuit. Workmen’s of the Connecticut visions Argued Sept. 1958. Compensation Act. Decided Dec. 1958. legislature The Connecticut Rehearing 27, 1959. Denied Jan. Workmen’s Com provided its sole avenue pensation Act shall be the sustaining recovery employee for an arising injury out of and personal employment. Conn. of his course Un section Gen.Stat. em arises less tuberculosis compensable dis ployment, Bros., Inc., Dibner Madeo I. ease. 616, 105 A.L.R. 186 A. 121 Conn. However, plaintiff’s claim upon con tubercular based not concededly dition, to the traceable upon employment, but conditions negligent nonfeasance, failure case has In no Connecticut

warn. expressly nonfeas

been decided that may “accidental in

ance amount to definitely may jury which located place where when and the as to time * * the accident occurred Conn. Supp., 3037d. But section Gen.Stat.1955 aggravation, employ- course

ment, nonoccupational disease has of a compensable under the to be been held School, McTernan

Act. Cashman v. we 34 A.2d 874. And think

Conn. Judge reasoning Smith was correct inspect ray the X failure carefully promptly

plates to warn sufficiently plaintiff ac- located “the injury when and as the time cidental or, in

place the accident occurred” where continuing alternative, “repetitive warn constituted failure employment incident” to the acts compensation available. The earlier, contrary, judge’s decision Corp., Wiblyi Motors un- v. General

reported, Civil No. D.C.Conn. properly overruled.

(1953), was

Affirmed. came follow- verdict long, fought hard Defend- trial. ant, many appeal, ques- raises incorrectly

tions which he claims were by decided the district whose care- thorough opinion may ful and found D.C.W.D.Pa.1957, F.Supp. 490. Defendant, official, union labor was alleged money to extorted from a have man named William G. who Rider was ready-mixed supplying the business of concrete. The of Government’s version facts, accepted by jury, was Rider, the defendant had follow- come to entering profitable Rider’s into a supply contract to for mixed concrete the construction of a mill steel in Alien- port, Pennsylvania, he had and that threatened Rider with loss of that give if contract did he the defend- not fifty yai"d cents a cubic all ant for con- job. crete furnished for The this suffi- ciency justify of recital this convic- to Pa., Pittsburgh, Casey, M. Vincent tion under the statute will be considered Philadelphia, vonMoschzisker, Michael later. Defendant’s first contention is Rich, Casey, (Margiotti V. & J. Pa. Pittsburgh, way that interstate was in no commerce brief), ap- Pa., for on the by affected his actions. pellant. Atty., Teitelbaum, S.U. I. Hubert I. Interstate Commerce. Paletta, (Leonard J. Pittsburgh, Pa. Pa., Atty., Western Dist. Asst. U. S. ques interstate commerce ap- brief), Pa., Pittsburgh, on the simpler tion defendant’s pellee. argument appear. would have In making ready-mixed this concrete GOODRICH, Rider STALEY Before bought pumped sand Judges. which was HASTIE, Circuit Ohio, Virginia the Ohio River West trict property threatened Extortion induced ^[*] any That statute any conviction under the affects This is an GOODRICH, Circuit (cid:127)» robbery way article Pennsylvania from or Hobbs rendered or wrongful degree obstructs, delays, defined force, appeal penalizes or another, commodity Act, extortion or in Western as “the from a violence, use of actual or 18 U.S.C. in a with anyone Judge. movement judgment obtaining his prosecution * * commerce, who consent, § 1951. fear Rider or Dis “in or Whether work pany. which came unloaded pany’s settle Pennsylvania, ried on. or both. The Slag sold contract barges but was pumped land It from It it was Duquesne part delivered being was on of sand is sufficient to that Rider’s him mentioned Duquesne consigned consigned outside carried on. This consigned sand Slag Slag to Rider does not were case, were place from the Sand Products Com Products Com operations to Rider and Pennsylvania. brought that some of point directly being where his Duquesne Company, out, river, sand into car 1951(b) (2) 1951(a) (1951). (3951). U.S.C. § IS U.S.C. n pleted ship product was interstate commerce it would There much of its matter. notably process. out of Pennsylvania, Michigan Kentucky. court, necessary should charge, in its told if it sand; progress have been the of all the was satisfied Mr. Rider’s concrete “that evidence it is there was constructing was used for mill quantity sent a considerable would manufacture articles steel way. need to do Rider We shipped commerce” and worry problem ma- ourselves with the they believed the extorted defendant having inter- from terial come to rest money they in- from Mr. Rider were having journey and then state commerce something structed “as a matter of law there that it else done it after has been a inter- substantial effect facts, toas The reached destination. its by state commerce shown the United any rate, as are some of sand at States.” baking Philadelphia con- if a clear as through broker, cern, flour to ordered a by questions There are two raised Minneapolis him at shipped from be this. The first has to do with whether States, Philadelphia. United Hulahan v. phase the the covers of indictment point Cir., 1954, 214 is 8 F.2d alleged whether, not, crime and if there here; predecessor, Nick v. likewise its is a fatal variance indictment between States, F.2d proof. above, and indict- As said the La- A.L.R. National 791. See charged ment inter- interference with International Board v. bor Relations receiving, state commerce on Milling Inc., 1951, Co., U.S. Rice sending stating end, by except 95 L.Ed. S.Ct. sand was for a steel mill. good; far, commerce interstate So so delivery sand of this If there variance, was involved in the was a no harm was af- was done if such commerce to Rider and it and it is not a source of re- part of the on the versible error. fected extortion The defendant was not surprised; committed testimony an offense is there (cid:127)defendant about product Hobbs destination of under the Act. of the mill objected to, was argument but counsel’s phase of There another against it was directed to the substan- however, point, commerce- interstate concerning tive scope law inter- difficulty. presents The sec more which state commerce. The record discloses paragraph indictment ond prepared that counsel was for the intro- party charged a was a Rider testimony duction of the rather erection of steel “for the contract surprised by it. It is now too late to Pennsyl Allenport, processing plant at point,. raise the See the discussion perform purpose vania, and, for the Berger v. United States. supplies contract, caused said 55 S.Ct. 79 L.Ed. 1314. com move in interstate materials points in the various merce between second The under this plant of his site United States charge head is the correctness of the as mixing manufacture of for the a matter of substantive law. Is in an ” * * * ready concrete. mixed furnishing terference with a man who is charge facts with the of this connection which, material for a mill when com shipment sand of the about shown pleted, products which, will manufacture already discussed. been

"has successfully marketed, shipped will be During course the trial wit- state close to inter company plant state commerce to be whose made a from steel federal ness gave being Allenport evi- offense? It is to be built at noted the lan guage very broad, steel mill was com- used in when the the statute dence completed, produce fed- will materials seemingly cover all that intended to regard.3 com- themselves will in interstate legislation move can cover eral merce, pro- be whereas material authority Mitchell helpful findWe plant duced would be in Archer Co., Inc., & Vollmer v. C. W. prin- used for further On construction. ciple indistinguishable. the cases are engaged construc employees There Archer declined to completed, which, when a lock tion thought had whether Vollmer part Intercoastal Gulf was to swept away learning prior all the on the engaged in Waterway, held to be were question of or concerned what touched meaning within the commerce sufficiently Act, 29 U.S.C.A. Fair Labor Standards subject regulation. made the of federal done, lock, seq. when While et Contracting Hodges See also Mitchell v. instrumentality to become Co., Cir., 1956, do 238 F.2d 380. Nor process commerce, in the while was we here. that we think sufficient in the much as it was construction apply regulation the federal to the stage here. mill steel preparatory as the case in hand is current authorit within Pennsylvania Railroad Reed v. And in ies.4 Co., Court, re Supreme 100 L.Ed. Sufficiency II. of the Evidence. Cir., versing F.2d in 3 decision our Employers’ Federal held that We now turn to the defendant’s seq., Liability Act, 51 et 45 U.S.C.A. § contention that the evidence was insuffi duties applied whose worker an office point cient sustain a conviction. This company’s tracings dispose very file were we can quickly. The rolling stock, equipment testimony and structures. Rider, of Rider and Mrs. if by the believed, held decision was support The Vollmer is sufficient to a find year within to include last pay Fifth Circuit that Rider was forced to this- building of a money through commerce” “interstate to Stirone fear of eco causeway traffic which interstate profitable over nomic loss to his business with completed. company constructing flow when it would mill. the steel Cir., Root, Inc., 5 argument v. Brown & Archer is true that could be made also contrary. decision aigument F.2d 663. The to the But the brought contrary commerce” within “interstate jury. was made to the In cause production deed, for the of material defendant denied he was at way place and construction construction where Rider he was said completed alleged would plant day which when of a of the conversation and de in the produce be used materials nied conversation ever took only causeway this, dif place. however, The construction. All is settled aspect finding of the finding this last ference between case, supra, supported case at bar amply testimony. and the Archer in the Rea plant, when bar the in the case at fear of sonable economic loss is 1951(b) (3) (1951). plying 3. See 18 U.S.C. the Fair Labor Standards Act * * * construction, prior means term ‘commerce’ “The stated that over which the all other commerce of the radio existence station removed it jurisdiction.” “any has States United status of naked from ‘new’ con- yet activity struction Hodges Contracting Co., page being.” Mitchell v. In 238 F.2d at 384. See also Newjer Contracting Co., F.2d the Fifth Circuit States v. United brought D.C.D.N.J.1958, F.Supp. ambit of Fair within the engaged employees employees Act Labor Standards which the court held that of a company engaged of a new radio-tele- in the construction construction in con- building newspaper. super highway for a local work on a vision struction which Although enterprise completed a new television was would when facilitate the flow previously op- newspaper, had other for the of traffic to states were within the court, ap- a radio station. The Fair Labor Standards erated Act. he Bianchi to come statute. committed other crimes simi within the lar States, F.2d to the United one with which now he is charged. 182, 194. The trouble is that while such probative highly evidence is prej it is III. Evidence Similar udicial jury may and a court or find it Offenses. determining géneral self whether the defendant bad man rather objection, prosecution, over whether he particular committed a permitted introduce rebuttal crime. testimony de of similar offenses So, general rule, as stated extortions, coerced fendant. These payments or courts, most is that evidence of other they place, money, took offenses is inadmissible criminal in a following occurred the incident prosecution particular crime. testimony had complains. Rider This qualified by This rule is ex number of case been offered in the Government’s ceptions capacity stated in terms of the judge it. refused chief the trial but prove specific the evidence to some intent, showing Later received as it was fact intent, plan, or issue as such scheme design. scheme, plan or design. g., Klass, E. United States admissibility Cir., 1948, 373, 377; 166 F.2d one other than the of offenses evidence Bradley, Cir., States v. 152 F.2d ais is on trial for which very defendant range relevancy, 425. But since the Contradictory state difficult one. showing other purpose than for the and the in the decisions abound ments judicial crop propensity, infinite,8 criminal is almost subjected to has been may we phrased think the rule be a little re of law writers criticism severe mechanically. less Evidence of of other difficulty one is The view articles.5 may fenses be received if relevant for inherent the nature which is problem.6 in any purpose other than to a mere show obligated Anyone deter propensity disposition part on the guilt defend a or innocence of mine the the defendant to the commit crime.9 in charged particular crime with a ant variably a show influenced would be judge may, Of the course trial crimes commits defendant discretion, in the the exercise of that his sound Certainly probative general. logically it is exclude evidence which is rele criminal prove a defendant a that propensity, vant to an issue other than This crimes. man who commits probative a if he case is showing finds that the value of strengthened evidence substantially is such evidence is out- following care- general contain articles 5. The 9. Even this statement must be problems qualified prosecutions the ful consideration for sex offenses. Stone, jurisdictions Exclusion Rule of The area. A number of admit evidence England, 46 Evidence: Pact of other similar Similar offenses where offered to Stone, (1933); prove propensity 954 Harv.L.Rev. for illicit sexual re particular person. Evi- Pact g., Exclusion of Similar lations with a Hodge Rule E. America, States, 988 1942, Harv.L.Rev. : 51 dence v. United 75 U.S. App.D.C. 332, (1938). (incest); 126 F.2d 849 Terry, 1925, State v. 199 Iowa attempt Sykes hopeless (incest); State, to reconcile 203 N.W. 232 is v. “It heads; precedents (statu the various under Tenn. the S.W. 185 tendency depends tory rape). the An much extensive for too annotation on prin- subject dealing flexible with a is contained in 167 the Court ciple.” A.L.R. 565. Wigmore, Evidence 302 at A few § decisions have admitted evidence persons 1940). (3d of sex crimes with ed. other particular person involved in the Compare McCormick, 127 at 328-31 on trial. Evidence crime Fairbanks v. States, Note, U.S.App.D.C. (1954). United 345, 29 Mich.L.Rev. See (1931). 226 F.2d with Commonwealth Kline, 1949, v. 361 Pa. 65 A.2d 348. at 327. 8. Id. weighed by risk its admission indictment.” limited that Then he danger un- testimony will create a substantial consideration of the show- ing intent, prejudice. plan Feld- due United States or scheme. 399; man, Cir., 136 F.2d given If the limitations Shurtleff, States jury by judge the trial more strict were Uniform 43 F.2d 947-948. See make, required by than he was law to 45; Code Model Rules of Evidence is, clearly, that not a of which matter (1942). it But Rule of Evidence complain. defendant can greater in mind must borne that evidence, probative force of the Prejudicial IV. at Misconduct likely prejudicial more is to The Trial. against party whom it offered. complains defendant case think there In this we engendered prejudice by at the trial receiving no abuse discretion in prosecuting attorney. find We do not testimony. de- Rider testified that prejudice. very vigorous such ly It was a place him his fendant had interviewed at Lawyers contested case. both for on a certain date and of business sounding sides “clash’d on their shields him with had the defendant threatened the din of war.”10 made Each side pay- make if he did labor trouble charges against for the witnesses denied Stirone ments to defendant. suggestion other side. There was a speci- meeting place time and prosecuting attorney injected the personal his having collected he admitted fied but guilt belief of the defendant’s money he said was from Rider which argument. his into There some talk legitimate commission fair perhaps support which would con securing Rider rendered services this, any point If there tention. profitable contract. The defendant timely made and does so it testimony argues is be- if Rider’s We, not need to be considered. course, agree relationship be- nature lieved the lawyer’s view own Rider was defendant and tween probity as to of witnesses or the the un- proved other evidence was and this something of a case is soundness not question necessary. before the But the argued We, to the trier of fact. the story jury was whether Rider’s doubt, too, whether invectives thrown having not, defendant or be believed vehemently opponent for an or at witnesses lawyer in it. The evidence denied opponent jury for assist a was, therefore, to ex- relevant through But decide a case. as we read purpose in plain intent or Stirone’s here we think record do not soliciting money Unit- from Rider. See prejudicial error was al committed Blount, Cir., 229 2 ed States v. though exasperat counsel each no doubt 671-672; v. States F.2d United very judge much. other ed the The trial Cir., 1955, Wall, 225 F.2d 905. 7 calmly the contestants check held judge limited The trial this evidence h,is charge model was a of fairness. We strictly. very He jury cautioned the nothing complain is think there may that the “that the fact defendant department. Judge As Hand another committed similar have is act pointed years ago, a number out Di any of itself evidence not he is States, Cir., 1925, Carlo v. 2 charged guilty offense in the in- prosecuting attorney F.2d jurors He told the dictment.” that be- may be shorn “of not oratorical all em they testimony could consider fore this phasis.” they first find must “that other evi- case, standing alone, dence in es- There is brief, mention beyond though a argument, reasonable an oral tablishes doubt the of a com particular charged plaint did the accused acts based circulation of a Milton, Lost, I, Paradise 1. 668. Bk. pointed pamphlet jurors. As commerce. Cf. for United States v. Em- by ploying objection judge, Ass’n, 1954, Plasterers’ trial 347 U.S. timely not be considered. S.Ct. made and need L.Ed. 618. is, likewise, complaint There a about In some situations business by subpoenas use of the Government. against which an extortionate demand We find this trivial. has part made been can be shown to be a judgment court district intimately of or related interstate will be affirmed. any disruption commerce so that of that necessarily significant business has ef HASTIE, Judge (dissenting). upon Circuit fect Thus, commerce. and most obviously, directly if the business affect principal questions in this One of the ed an extortionate demand inter erred case is whether the below court transportation wrong is within charging as follows: g. Kemble, the Act. E. United States beyond you a if “Or are satisfied Cir., 1952, Again, if 198 F.2d 889. Mr. Rider’s reasonable doubt against proprie extortion is directed a constructing used concrete was engaged tor providing, operating or mill which would manufacture a working something upon otherwise so shipped in- articles of steel to be closely functioning related interstate you if also commerce and terstate commerce as to merit characterization defendant extorted believe that facility instrumentality as a of such you money Rider, in- are from Mr. commerce, may itself a matter law structed as bring hampering en extortion effect a substantial there been terprise within the statute. Cf. Mitchell commerce shown on interstate Co., 1955, v. C. W. Vollmer & words, In other the United States. 1196; Over L.Ed. you to be as find the facts Corp., 1943, sheet v. North Shore contends, Government 656; S.Ct. affected, ob- has been Inc., Root, Archer Brown & delayed.” structed 1957, 241 F.2d 663. Stating thus raised this the issue only But here commerce said to be asks: prospective affected distribution man with an interference “Is goods factory produced to be furnishing material who about to be I think it constructed. completed, which, will when mill would be an of unwarranted extension which, products manufacture wrongful concept of the conduct affect- marketed, be successfully will ing interstate commerce embrace this close shipped of the supplying interference with of build- commerce interstate ing material for a structure which will offense?” a federal made be activity eventually house an which will give majority an question the To this create some new commerce. In other regret amI that I thought answer. affirmative been circumstances essen- concur. jurisdiction unable to federal under tial regulated agreed commerce clause that con- recognized that and is It existing 1951, related some duct be com- Act, and the 18 U.S.C. § Hobbs merce, solely to stat- and not commerce con- on that founded present indictment planned begin- templated or to have its purport an extortion- to make do ute ning proprietor in the future. This upon view is a business demand ate strongly exemplified supported upon and except a clear crime federal a showing cases, of which our own decision with the interference that such Kelly Ford, Davis, “obstructs, Inc., actually Bacon & v. business Cir., 1947, 555, 162 F.2d is an often cited interstate commerce delays affects” refusing leader, to extend the in such of article Fair La- some movement or the 82, conception 122; activi S.Ct. 87 L.Ed. v. bor ty Act United States Standards Wrightwood goods Dairy affecting production Co., 1942, U.S. new to the construction S.Ct. 86 L.Ed. It commerce plants 726. solely future true that it is “fi]f intended interstate goods dis production pinch, that for interstate feels the it does matter concept vitality operation applies how of this local the tribution. The Reed, squeeze.” by Murphey 335 the attested See United States Mfgs. Sportswear Ass’n, 1949, and 93 L.Ed. S.Ct. Women’s U.S. 460, 464, in Mitchell on that decision comment supra, figure at speech & v. C. W. Vollmer Co. But this page 75 S.Ct. at carries note with idea special “squeeze” “pinch” aversion seems to me be must real and the speculative uncomfortably con perceptible. criminal law for guilt proof of clusions in chain present On the no record more can be appro more limitation even this makes said an en- was done to what essential, priate, applying the indeed tirely might conceivably local business Hobbs Act. impact have future on Most commerce. certainly not even a likelihood actual difficulty affect In addition to this impact upon interstate commerce can ing present yet begun, commerce not properly proved said been to have be- speculative presents factor. case a second yond reasonable doubt. Yet made The against extortionate threat was government least was the burden supplier con of mixed a local undertook to bear in case. this criminal entirely speculative whether crete. It is single preventing material- Finally, or not this it should be and considered furnishing kept on man from mixed concrete in mind that control serving job punishment the construction he was primar- of local extortion is ily inter would govern- have affected even future the business of local or state abun state commerce. concrete auxiliary Was ment. The Hobbs Act is an supply? partially other duplicating dant or Were there super- short and imposition federal sup ready anxious to materialmen on state law enforcement. In delay ply Congress needed without concrete the view of is a desirable job? noth for the The record tells us measure of federal assistance ing. proof police But without some states the exercise their supplier power. loss of in fact have power would But where state and re- delaying sponsibility some eventual primary effect are thus and the mill, suggested productivity any government merely perform- national auxiliary even on com function, ultimate effect we should not steps specula eager merce several removed is jurisdiction to stretch federal degree. tive to an extreme Cf. United offering only cover doubtful cases Drive-In, Inc., 7 speculative States theory v. Starlite tenuous or of federal Indeed, 204 F.2d 419. under jurisdiction. I Schwartz, See Federal authoritative rule to stand the be Criminal Jurisdiction and Prosecutors’ where the in Discretion, is an 1948, conduct Contempo- 13 Law and solely rary with a Problems, 64, terference business, distinct local 70. We should insist re jurisdiction there substantial must that federal before clear effect, very sultant demonstrable imposing federal sanctions in an area speculative effect, upon aof primarily antithesis juris- local concern. Federal certainly justify commerce far interstate federal diction from clear considering. circumstances we now are power. under intervention the commerce Farms, Inc., Mandeville Island Amer dissenting What said has been in this Crystal Sugar Co., 1948, ican only opinion one concerns of the two 219, 996, 1328; 92 L.Ed. 68 S.Ct. upon Wick which bases could have Filburn, 1942, upon ard v. found the essential U.S. effect inter- charge. 631; objection al- here is that the. under the court’s commerce legations charge theory the of the indictment do upon which We know cannot finding accused the crime for which was convict- jury proceeded Stirone ed. guilty. Therefore, send I would newa court case the district back to I am ex- also accord with the views theory of the erroneous

trial at which dissenting Judge pressed in HASTIE’S commerce interstate involvement opinion. The statute is extended un- eliminated. would be reasonably with embrace interference prospective of steel from a distribution factory in course of construction. Rehearing On Petition Allenport plant Pittsburgh Steel Judge, and BIGGS, Chief Before Company facility is not and was not a Goodrich, McLAUGHLIN, STALEY in interstate Cf. Mitchell v. commerce. Judges. HASTIE, and Circuit Co., 1955, C. W. Vollmer & 349 U.S. 1196; Archer v. Root, Inc., Brown & PER CURIAM. F.2d rehearing presented petition for A grounds rights preserved by ap- consideration. Stirone for our his argued fully urged objections. propriate have been therein therein find no merit We this court. respectfully I therefore must dissent rehearing. Ac- warrant that would denying from the order of hearing. re- cordingly denied. it will be Judge HASTIE shares these views dissenting. Judge, BIGGS, Chief joins in this dissent. appears between the variance A fatal proof. charge indictment and of the correctly the indict- held This court obstructing charged with Stirone ment plant receipt of sand Rider’s but not error for was concluded charged in- have trial court with

terference Act, Hobbs prohibited U.S.C. on the basis be found could either Inc., receipt COMPANY, Appellant, & of the ARMOUR with of interference ground of obstruction sand or shipping Al- steel from the with the MITCHELL, Appellee. L. Robert Pittsburgh plant lenport Steel No. 13494. Company of con- was course Appeals States Court Stirone therefore tried struction. Sixth Circuit. charges. One, obstruction of the on two Dec. sand, two, receipt interference delivery plant from steel with charge yet laid The first built. The second was not. indictment. Berger States, v. United The doctrine S.Ct. cannot cure error. Berger the crime for which clear Berger was within was convicted indictment, see words 81-83, pages 630- pages 55 S.Ct. at

Case Details

Case Name: United States v. Nicholas A. Stirone

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 27, 1959

Citation: 262 F.2d 571

Docket Number: 12543

Court Abbreviation: 3rd Cir.