United States v. Oscar E. Hyde

America, UNITED STATES Plaintiff-Appellee, al., Defendants-

Oscar E. HYDE et Appellants.

No. 27777. Appeals,

United States Court Fifth Circuit.

June Judge,

Rives, dissent- Circuit filed

ing opinion. Judge,

Rives, dissented Circuit rehearing by panel. petition

denial of Godbold,

Gewin, Coleman, and Cir- Judges, peti- participate

cuit rehearing

tion for en banc.

817

charged conspiracy with extortion and Act, extort1 2in violation Hobbs By statutory U.S.C. 1951.2 definition § the extortion interstate com must affect Shortly Kelly trial, merce. before the Merritt, Rogers, Redden, L. Drew R. suffered a heart attack and the court Mills, Rogers, Howard, Birm- Redden & granted Kelly’s motion for a continuance Hyde. ingham, Ala., E. for Osear (See and a severance. Part VI Beddow, Embry Fullan, Jr., James M. weeks, opinion.) lasting After a trial six Ala., Birmingham, Beddow, for Rich- & Hyde guilty found and Flowers mond M. Flowers. on all counts. Each was sentenced Boult, Jr., Counsel, The F. Reber Staff eight count, years serve a term of on each ACLU, Roger Baldwin Foundation concurrently. Hyde the terms to run Director, Inc., Morgan, Jr., At- Charles $10,000 fined each of first two Gantt; lanta, Ga., for B. Melvin L. Joe $5,000 counts and Flowers was fined Norton, Wulf, York Eleanor Holmes New each count. Gantt was convicted on the City, of counsel. charged.3 three counts with which he was Wayman Atty., Sherrer, G. R. U. S. given He was concurrent sentences of Macey Taylor, Atty., Birm Asst. U. S. years counts, five on the first two ingham, Ala., plaintiff-appellee. suspended; he was sentenced to year day serve one and a on count four. RIVES, WISDOM, CLARK, Before Judges. Circuit Attorney Flowers was the General of January January Alabama from WISDOM, Judge: Circuit top Hyde Gantt was his assistant. friend, Hyde, political was close to Flowers as a Flowers, Oscar E. Richmond Joe Gantt, Kelly, supporter, and business associate.4 The Breck and James C. were (3) Hyde charged The term com- 1. “commerce” means and Flowers were each on Columbia, conspiracy (I II) merce within the of District two counts of and and any Territory substantively violating or or Possession of the on two counts of States; IV). (III all commerce between the Act and Gantt was any point State, Territory, charged I, Kelly II, in a Pos- on and Counts IV. session, charged or the District of Columbia was I and II. counts Six any point thereof; coconspirators and outside all com- others named as were but points merce between within the same not indicted. any through place outside such State State; language 2. The of the statute is as follows: all commerce over other by 1951. Interference with commerce § jurisdic- which the has United States threats or violence tion. (a) any way degree Whoever or obstructs, delays, or affects commerce 3. footnote 1. See or or the movement article com- modity commerce, by robbery or ex- Hyde, Flowers, Kelly, had financial attempts conspires do, tortion or or so to dealings among physical number themselves for a or threatens vio- or commits years. president of Flowers became any person property or in fur- lence to Company in Insurance plan purpose Alabama General therance of a or to do corporation’s 1956; Kelly secre- was the anything in violation of this section company tary. years the $10,000 After several not more shall be fined than Kelly en- Flowers imprisoned twenty years, became insolvent. than not more company’s note held a Flori- dorsed the or both. In late 1950’s Flowers bank. (b) da Kelly together acquired in this section— As used businesses several $ $ $ & purpose Mississippi avowed for the (2) means the term “extortion” pay money making off another, property sufficient obtaining from note was time the by wrongful From the consent, the note. induced his with through 1963 election force, executed vio- or threatened use lence, actual pay- Attorney General fear, Flowers of official or under color Then, in the note. made on ments were right. filing companies out of suits theory is that business case Government’s showing com- years in state during was office courts Flowers panies illegally high pay- charging rates conspired to were extort the defendants companies and threat- for their loans. The defendants life insurance ments from companies ened life insurance companies under certain in Alabama small loan taking payoffs ac- made to them certain that unless threat of Flowers’s they through failing cases, (or, take Flowers the Securities other tion — approve intra- the ef- Commissioner—would not action) certain necessary companies for the com- state stock issues preventing the fect doing panies to do business and would not in the State. business license stock salesmen. Attorney the duties ofOne Hyde typical or one of In a situation statute, en Alabama, General conspirators made threats the unindicted regulating com small loan the laws force always —almost oral threats —to excess of respect panies to loans Gantt, however, case, In one pretext victims. Attorney also the General $300. inspection under of a routine In this Commissioner. State Securities Prichard, Century small Discount of approval capacity include his duties company, com- loan removed some of the offerings se public of all intrastate pany’s necessary to its records business regulation of broker-deal curities operations; time, at the same Flowers of stock handling sales ers intrastate causing quo proceeding warranto par Customarily in Alabama issues. against company to be filed Attorney han General ticular Assistant contrary ground operating that it involving the Securities matters dled law; Hyde later communicated of Flowers assumed Commission. When parent company that the suit could be long Bridges, he Owen fice relieved dismissed and records returned Attorney standing General- Assistant price; company paid price $62,- the — all Commissioner Assistant Securities paid Typically, the extortion was his relating to securities. duties legitimate seemingly contracts. During place appointed Gantt. Flowers companies, For the loan the contracts Bridges Assistant period insurance, were life a form for credit super Commissioner, had he Securities of assure re- insurance debtors to of stock applications for the sale all vised payment of For the life insurance loans. signature At of and had affixed companies, usually the contracts were for permitting the torney to orders General advisory services connection with stock Bridges’s After stock. sale of insurance sales. All of these contracts were shams: himself, removal, on Gantt’s Flowers parties the interested understood from sign recommendation, the orders beginning no the visory insurance or ad- public of approving issues the sale of being of real service value was therefore, Flowers, knew should stock. purchased. companies pay- The which to ap presumed every known of to have ments made channeled the funds to were Commis plication State to the Securities defendants, usually Hyde. to offering public of approval of a sion for securities. Hyde visibly was the most active put context we sketch To ease conveyed he most of defendants: showing de- how the some of the facts arranged payments. threats operated. fendants however, position, an Gantt’s made him example, important participant For too. certain The defendants threatened arrange helped pay-offs he the contract companies small that unless loan pay obligated they through itself Flow- Trans-Southern to to them were made — $90,000 put to the defendants. Attorney Trans-South- ers as General—would Hyde $50,000. put up pressures Hyde response payment, for the note for to pay $50,000 persuaded to the bank. the bank to settle and others obtaining approval Company, life all credit Insurance of the era was interested After insurance Alabama. in Alabama and also business sale of stock ability exempt pro- obtaining Aspinwall questioned approval of sales his offering. Orr, Hyde arranged business, public prior Donald duce such Aspinwall organizing Trans-Southern, met to meet with Flowers. Flow- then Hyde’s Aspinwall Hyde in order ers confirmed to told him that who pad- approved it exemptions his deal and he would deal was have certain give ap- any company $25,000and to obtain lock that refused him would cost public of stock credit to United proval issue life insurance business of the equal Security conspira- to 5 amount Life Insurance. The him an would cost percent figure $75,000 price the issue. Orr tors set a Aspinwall as the amount of pay “package agreed this, $25,000, re- paid should for a exemptions. package Aspinwall At the direction deal”. was forced ceived the exchange totaling $20,000 buy Hyde, amounted to checks this: Montgom- $75,000, Aspinwall payable to a law received advance made firm nothing, ery approval public a law Orr knew issue of stock about which Orr, Associates; obtaining legal Aspinwall help service for no that did firm charter; company difficulty that had no con- $5,000 a a national bank salesmen; performed concerning licensing no serv- nection with Orr company. Attorney After ice for him or for his no trouble from the General's exemptions and the issued office. had been public ob- approval issue had been Flowers di- evidence showed that him to tained, and told called Orr Gantt rectly from benefitted some Montgomery. purpose of come to Shortly schemes. after one victim had meeting explained to Orr as Gantt paid Re- Pan-American Public $2500 writing agreement put was to into Advertising, lations and a sham Florida Hyde. previously made with Orr had public company, relations check agreement obligated This Trans-Southern company for the same amount was Security pay $5,000 Mer- month to deposited personal in Flowers’s bank ac- $90,000 chants, corporation, until a shell count. Life Insurance Com- Paramount paid $70,000 paid. some had been Orr pany Alabama, subsidiary pay more on the did not contract but difficulty company, Arkansas se- though after Flowers left office. Even curing approval public issue of the contract the sum under the terms of sale of notified the com- Gantt stock. Security owing, Mer- $20,000 still pany’s attorney approval of the stock no action to recover chants took registration might year. Hyde take a significant the details of the sum. When price $25,000 approval. set a of to secure being explained contract to Orr paid money by Paramount checks Gantt, appearance Flowers made brief attorney by Hyde. made out to an selected of the told Orr that the execution and pay-off, $10,000, The first sent to was suggested by and Moore contract as Gantt Hyde’s office; attorney endorsed the necessary keep “in order to Oscar deposit signed check for and then a check [Hyde] happy”. drawn on this account to the Richmond attempted, Flowers too success- Campaign Flowers Committee stay background. fully, direction, Es- $8,000. Hyde’s amount of At to all the was the company paid sential schemes however two additional amounts ever-present $5,000 use of his office as an sword persons. of He de- each other dangling of Damocles over the heads payments scribed one of these as a “flat lay-off”. his He of state- company approval victims. made a number The secured ments victims and to neutral third for its stock issue within hours after parties indicating Hyde spoke agreeing $25,000 payment. that to make the Aspin- instance, Hyde part For offered The him. evidence also showed that wall, Security money Life President of United extorted from First American that and women were discrimina- Company included blacks Insurance Life Kelly jury system. torily excluded from the mortgage $50,000 for loan argue They erred Flowers’s also that the court Hyde’s buy in Florida for house hearings denying them to chal- which use. lenge composition juries. of the do not con- appeal the defendants On except sufficiency of the evidence test grand jury The of the District They following respects. assert in the Ala the Northern District of Court for that at worst the evidence shows indicted case bama the defendants bribery rather actions constituted their August 2, 1968, is, ef before Act. Hobbs extortion than Jury and date Se fective Service sufficiency of the evi- They contest et lection Act U.S.C. § affected actions to show their dence According census, seq. to the 1960 79.2 Act. Hobbs under the

interstate commerce percent population of the adult sufficiency of the evi- contests Gantt Northern District of Alabama at participation in the al- show his dence to white, percent time was black. 20.8 leged extortion. male, percent population 47.4 percent appeal grand be discussed 52.6 issues on will female. following indicted defendants was com order: in the only posed men, three Composition and Petit I. of Grand tweny-one men were blacks. Juries The record shrieks lack II. Flowers’s Motion for Severance extensive factual statistical evidence Bribery III. Extortion presented usually involving in cases Evi- IV. Interstate Commerce: alleged systematic exclusion of blacks dence, Indict- Variance jury system5 (unless from the a case Jury Charge ment, presents systematic discrimination obvi guilt V. Gantt’s ous virtually from the total or ex total VI. Based Motion for Continuance blacks).5 clusion of Instead, the defend Kelly’s Severance Illness and rely ants on uncertain conclusions drawn depositions, from two last-minute Testimony one Admission VII. from Clerk of Court Davis and one from Minds Show State Victims’ deputy, Jones. As the defendants Improper VIII. Statements guesses translated per clerks’ into Trial centages, Davis estimated that blacks Prejudicial Newspaper IX. Public- composed percent 6.1 jurors; Jones ity percent. estimated 10 Davis estimated composed percent women 7.4 I. GRAND COMPOSITION OF jurors; percent. Jones estimated AND PETIT JURIES Contrasting these estimates with the figures showing state 1960 defendants contend census grand jury population percent which returned indict be 20.8 black percent female, ment and the trial returned the defendants con illegally the verdict (See were tend in that blacks constituted and women White they Crook, pool, M.D.Ala.1966, were F.Supp. 401) drawn from 251 jury wheel, representing discriminatorily master were a cross- excluded the jury system they section of community; the in the assert district.7 example, specialized 5. showing standing For 7. Rabinowitz v. United No is necessary 1966, challenge 5 Cir. for a 366 F.2d 34. defendant jury composition illegal under the example, 6. For Patton v. of Missis- State jury federal statutes. Rabinowitz sippi, 1947, 463, 184, S.Ct. Cir. 366 F.2d 96; Alabama, 92 L.Ed. Norris v. State attacks, 1. As to n. constitutional 294 urge standing L.Ed. their Alabama, categories In Northern District fell within certain established judge.9 7,000 at time this was tried and before case district These effect, Jury names went into were Act then combined with another supervision 7,000 Court, jury names left Clerk of under from the list com piled Judge, attempted 14,000 to establish in 1959. From Chief these names selecting system Jury for a fair cross-section Commissioner selected the final 6,000 jurors. by choosing list In to 1754 1963 the Clerk wrote at random the (so-called “key jurors persons or “nomi men” number of from each of the 31 jur asking suggestions nators”) district, counties reflecting for in for 18,- suggested proportion county’s population ors8 These nominators ques sent 715 names. The Clerk then that of the district.10 The Commissioner 18,715 jurors county named. allocated tionnaires to each in four questionnaires inquiries broad categories bankers, farmers, about had mer — race, chants, did call for information on the and but others —in accordance with jurors. Approxi prospective sex the ratio category of each to the total population mately 11,000 questionnaires county.11 were re in the From this 6,000 pared group this list grand turned. The clerks names the and 7,000 excluding petit jurors, qualified down to venires were selected lot. explicit denying fell those who within one of order the motions to dis statutory miss exclusions and those the indictment, also who the court distin ground Flowers, judge orally those that best known of instructed Attorney them, prosecuted disqualify. deposed: them to General Davis alleged “[Ujnder rights of civil workers murderers oral instructions appealed Negro particular and paign for votes his cam- statute that we governor. argument persons No made instructed to excuse those standing challenge any sixty-five years age, as to over under- those representation of women. women with small or children hard- ships, a one man business and those 8. The text of the letter to the nomi- occupations. Teachers, seasonal nators as follows: if particular ask to be excused under that important very I am with the faced travelling statute. Persons filling for the task box time, ministers, lawyers, most Northern of Alabama with District undertakers, druggists, doctors and thirty-one names from the counties in nurses and those who have a record of district, race, regard without hardship excuses.” creed, sex, politics, and in this task your seeking help. selecting juries I am The method of enclosing I a few blank am sheets for Northern District also referred to in your convenience, together Roofing Mfg. Parnell, with a state- Atlas 1969, Co. v. jurors qualifications Morrow, ment of 409 F.2d Jackson v. you grateful descriptive this court. I shall Cir. appears me the men information sponse will send names of in the Clerk’s re- your organization, others, questionnaire appearing to a women you good jur- Jury Selection, Hearings would make Federal whom Before think Improvements the Subcomm. on ciary, ors. in Judi- you give Cong. (1967). 90th 1st I know that will this matter Sess. 741-52 your very consideration, and you careful challenge 11. The defendants use clerks’ select such men and women as categories “bankers, the four mer- involving pass want case chants, excluding farmers and others” as property. your life, liberty I feel Negroes points and women. brief Gantt’s good your confident government interest occupational percentage of out each impartial equal group purposefully that was included in justice you to take the time will cause bankers, per cent; list: 3.2 good prospective to furnish names of jurors. merchants, per cent; farmers, per 9.8 8.4 per others, cent; and It 78.6 cent. can- point discriminatory said that this is a 9. The clerks excluded not be any showing popu- process the statu- those fell within breakdown without who composition disability, tory (physical the defendant or exclusions lan- lation showing impact groups. conviction) plus guage disability, of the on other criminal

guished jury system tried, in stant ease was the Northern Dis- its selection usually The venire was com- system de trict of Alabama. from district persons, posed and three “key of 39 36 whites system: men” as the scribed blacks; women. 37 men and two Chief terminology [“key men”] While Judge Brown, Court, held that for the correct, of the may the court be plaintiffs “unlike failed Rabinowitz” keyman or the so-called opinion that showing” “adequate to make an jury that the system this dis used in nominator “spectacularly” box was not a cross- jury filling box of the in trict showing community. section of the The factual within 1963 does fall systematic, purposeful exclusion keyman situation, aas also described adequate and women is no more blacks great system, which was discussed the case now before the Court than length Court the United States was in Jackson Morrow. in Ra Appeals for the Fifth Circuit jury discuss We discrimi- below the v. United Cir. binowitz * * * arguments appel- Every seg nation raised F.2d 34. ¶ society represented lants. both

ment of nominating procedure in the and Anyone say A. would have process. court both final selection figures proportion gave the clerks for the personally judicially knows that serving juries of blacks and women on are jurors prospective selected have been uncertain of the fairness of the indicators creed, color, regard race, without jury system selection in the district. The sex, political and that or affiliation clerks were to state from hesitant ' petit juries grand drawn percentage recollection the number or as aforesaid the box was filled jurors falling categories. in the two represented section a reasonable cross Jones, Clerk who had the closest contact community regard to without jurors, percentage with the estimated creed, color, political sex, race, or af representation of blacks and women at filiation. percent twenty percent respec- ten tively. person A fair-minded have to shortcomings conclude that whatever jury eases In discrimination system jury may have in selection jury composition of the focus is on the result, terms of the end it cannot said jury rather on wheel than box or master designed systematically it was jury.12 But the defend the individual description exclude A blacks women. showing of com ants have made no system all the record position jury —about it cannot be box: prima short of shows—falls facie show- given in extrapolated numbers from the ing of intentional discrimination. “The depositions. Both the clerks’ clerks’ inadequate system] evil an * lies [in questions at answers to defense * * systematic in the and inten- torneys confusion whether indicated “eligible tional exclusion” of class or they gave the blacks and numbers showed group community disregard in the in the females whose names were prescribed standards of selec- those the venire lists or who box were appeared Ballard v. tion.” response who or those 187, 195, 261, 265, call of the or those who ac the tually venires L.Ed. 181. juries. composition sat from that Morrow, box cannot be decided Jackson v. against jurors appearing of the veniremen by blacks 903, a civil action actually serving. Many officers, plaintiffs-ap- those sum police white sys- asking moned wrote be excused pellants selection attacked the simply appear did not The de- very the in- court. where district tem Appeals, Jury Gevvin, the Fifth Circuit Court of Selection 12. See (1969). Implementation in Mercer L.Rev. Act of 1968: Service

825 community on a could helter-skelter effort to show made no fendants educational, social, portion non-appearing economic, basis of composition of the unlikely job-status representation. and It is not of the venires. Negroes chil- poor with small and women approach Consistent with this and in disproportionately form a dren would prima showing a absence of of facie Judge large group. part As of this systematic cognizable exclusion Morrow, in Jackson v. 404 Brown said rely group, the cases have tended to F.2d at 906: purposes jury and standards jury testimony Have in- concern- commissioners All have here is selectors: we Negroes, tentionally cognizable groups? males, ing excluded number of white typical races on the women both This Court has had ex wide average (see 2, supra) or venire note perience dealing syste cases with the This for summoned the week case. Negroes juries. matic exclusion of from establishing way clearly long is complete is a When there absence or larger make-up of the source —the “spectacular” underrepresentation Ne 6,000 jury box names. The venire groes juries, the courts have read all after excuses had been what remained figures establishing prima case facie ex- allowed. These incuded —to a liberal purposeful discrimination on the unchallenged Judge’s tent on the own theory against that discrimination Ne word into the stated record —women groes explanation is most reasonable family responsibilities. Included also composition jury system mileage were the traditional individual scrutiny.13 cases, In fed such hardship which excuses would encom- government state, eral or the as the case pass laborers, many of whom are Ne- may be, overcoming has burden groes. gap There is thus a total prima showing facie case de statistically makes unsafe —either or systematic liberate or exclusion dis judicially draw mathe- inferences on —to In each case the con court crimination. using probabilities matical re- the venire siders whether the record shows starting ending sult as both the jury operate brazenly selectors in a anti- point. Negro manner, example, by as for as serting Negroes that few meet the moral jury composition courts B. cases qualifications service. See setting precise numerical tend to avoid 1966, Rabinowitz v. United 5 Cir. reflecting percentage requirements 366 F.2d 34. The court scrutinizes community. This cross-section employed method determine there (see true of both constitutional cases achieving a lack of concern for a cross- Alabama, 1965, 202, Swain 380 85 v. U.S. example, community. section of the For 824, 759; v. 13 Brooks L.Ed.2d S.Ct. key did the white commissioners or Beto, 40, 1966, 1, n. 5 Cir. F.2d 22 366 per men restrict to their selection 1169, denied, 975, cert. 386 S.Ct. U.S. 87 white, sonal acquaintances, also all 135; Billingsley Clayton, 5 L.Ed.2d 18 gain knowledge make little noor effort to 1966, 13, 15-18, Cir. 359 cert. de Negroes? any qualified See Cassell nied, 841, 92, L.Ed. 385 U.S. 87 S.Ct. Texas, 1950, 282, 339 U.S. 70 S.Ct. 74) 2d former and cases based on the Peyton, Witcher v. L.Ed. (see federal act Hunt v. United Cir. 405 F.2d 725. 1968, 400 F.2d cert. Conversely, found courts have denied when complete 566). exactly mere jury system nor exclusion L.Ed.2d A neither reflecting under- population rather serious token inclusion but black-white prima purpose- black, Georgia, 1967, case of facie Thus Whitus v. by showing was made ful discrimination L.Ed.2d per grand that, per cent of the venire found cent that 9.1 Court where 42 petit per county population venire cent of the 7.8 adult per taxpayers cent of was black. and 27 black per of cent can-Americans constituted 35 they in several cases representation have only population, they 17.5 constituted good purpose non-discrim- and relied on jury pool. per The Court finding jury sys- cent of the inatory explanations findings. persuasive two non-discriminatory. there found has been This

tems First, jury selectors, clerk and standard constitutional true as a both commissioner, ef- made deliberate had statutory un- standard as a federal names of Mexican-Ameri- forts to obtain jury The statute. former federal der the They jury understood for the cans box. pattern in Supreme followed this Court duty a cross- to obtain that it was their Alabama, 1965, 380 U.S. Swain Second, community. evi- of the section L.Ed.2d There at- lower educational dence showed jury system of Tal- Court found pop- tainments of the Mexican-American County ladega il- was not tainted expla- non-discriminatory Negroes ulation legality despite the fact disproportion. for much of the nation per cent of constituted 10-15 petit jury panels drawn from the box sparse these criteria Under they per of the while constituted 26 cent produced the defendants evidence here reaching population. male In adult system. inAs not show an invalid does heavily relied conclusion Court underrepresentation of Ne Swain, First, commis- two factors. “purpose groes per se does not amount their sioners did selection restrict ful on race alone.” discrimination based personal acquaintances, they nor did ex- at 829. at press Negroes view that less were a selec defendants have shown neither they fit service. fact were system tion to the need insensitive unaware the race the individuals community nor the cross-section appeared whose names on the list of non-discriminatory factors absence jurors not know the number of explain disproportion.14 Negroes sought They in their beats. alleged C. The They names from various sources. system selection key man Negroes business contacts with and were key men inherently because biased general Negro familiar with white and com male white “the leaders are community. They members relied friends their munity,” to recommend tend membership organ- lists of biracial peo acquaintances, therefore Second, pointed izations. the Court out unrepresenta ple are as recommend “meaningful attempt there was no although they. names But tive as proportion demonstrate that the same avail key 1963 were relied on in men Negroes qualified the stand- no factual able, the defendants made being ards administered the com- group composition study of that missioners.” 85 S.Ct. at general Con support assertions. their assertions, trary defendants’ pointed ap- depositions adopted This such an their Court also court clerks among proach selected those Hunt v. United out Negro members which considered nominators Negro organizations, challenge petit jury panel VFW to a as viola- teachers’ organized statutory included posts, tive of the federal scheme. labor although common laborers.15 Mexi- skilled and The evidence showed that both always 14. The defendant the burden 15. The district court noted: has per- inquiries showing jury were directed to “These discrimination. Evi- following organi- representing “spectacular” underrepresenta- dence of sons V.F.W.; Legion; burden, making prima : American tion meets the zations organizations; labor fraternal facie case of discrimination. The bur- civic and lodges; organizations; going bank- Masonic probate; den of government forward then shifts to the county super- ; judges explain figures in ers superin- education; city non-discriminatory way. intendants hearing grand efforts obtain names filed clerks also made a motion for a on the organizations. January 20, clerks issue. It was not until women’s key choosing 1969, just men testified that one week before the trial was get begin, a cross-section. made to scheduled effort was to —and fact did — attorneys began discovery, that defense sent the clerks The letter is, depositions took that the of the two requested their key assistance men * * * grand jury court clerks on the issue of “filling jury without the box composition. creed, sex, regard politics race, to ” * * * although jury question- say, “Although And Defense counsel the suggested request discovery naires deposition taken, sent to those Clerk’s was sex, producing as individual’s data, information some raw did not concerning no race was information enter into the district court’s decision”. sought any way. colloquy or recorded in that occurred between the defense counsel and shows trial court Non-discriminatory hav factors depositions put that were in evidence. key ing nothing to do with use of Moreover, stamp dep- the clerk’s on the might explain disproportion men they ositions show that filed were on jury might disproportion have lists. The January 22, judge 1969. The trial there- might it occurred, or been accentu have fore benefit of the transcribed ated, winnowing steps proc at two depositions before he entered his order First, 18,700 ess. ques to whom January 23, of dismissal 1969. The trial sent, only 11,000 tionnaires were return judge objection, that he had stated “no Second, clerks, ed them. on the basis put- as the is far Court to concerned questionnaires, determined that ting it all record”. There only 7,000 qualified. step were At either assumption basis for the defendants’ that Negroes might easily and women judge the trial did not consider the evi- dropped disproportionately out but brought depositions. dence out their non-discriminatory fashion.16 Mobley This case is unlike either v. allege D. The defendants 768, 5 Cir. 379 F.2d improperly hearing denied a Walker, v. Scott Cir. on grand jury composition. issue 561, heavily appellants. relied on agree. We cannot Mobley the trial denied the de- The indictment questionnaires was returned fendant access to on in Au- file gust September helped 16, 1968, that would have to determine the Flowers moved composition to dismiss the indictment racial of the list because from of improper composition grand petit juries grand his were drawn. jury. November attorney This 20 Flowers’s Court reversed denial access education; Co., 1946, tendants of ern Pacific Jeanes teachers special supervisors; county L.Ed. boards was revenue; county agents, very large home the result demon- exclusion of a agents; agriculture portion groups stration of certain it but was stabiliza- jury tion and conservation service effectuated officers.” commissioner’s policy excluding groups conscious from Bennett, jury Voluntary non-participa- Labat v. 5 Cir. lists. require distinguishable. does not that all tion is See neutral cri- Grimes represent groups teria which tend to some 391 F.2d 709. Contrary suggestion, less than others be abandoned. to the defendants’ What jury concerned the Court in Labat was fact the new statute does duty jurors supposedly impose ques- use of the to neutral answer criterion resulted, factors, empower with other in a total tionnaires and does courts Negroes juries. potential jurors appear require exclusion of to an- Nor system questionnaires does the fact based on swer does not indicate voluntary questionnaires pursue question- return failure unanswered tends underrepresent groups illegal some former neces- naires under sarily jury taint Labat deci- statute. sion. In both Labat and Thiel v. South- hearing jury groups remanded for on the other identifiable were not under- investigator represented. In Scott Walker an issue. Here the defendants at-

working tempt for the explanation defendant was denied to convert a burden of attempt government access to official records his that the has when is shown composition composition spectacularly determine dis- proportionate lists. therefore more court was into a burden statistical willing rely testimony analysis general allegations whenever composition selection officials discrimination are made. We cannot reversing agree lists the convic- proposition. broad testimony tion. was sufficient That con also F. The defendants prima purposeful make a facie case system tend selection jury discrimination.17 by the illegal under Rabinowitz rendered this case the defendants key In were not of men in the letter inclusion denied re- access of records following “I know sentence: they the clerk’s tained office. Yet your very give you care- this matter will filed no with their affidavits motions consideration, only such and select ful they timely failed to make a or detailed you would want men and women as study Indeed, liberty based on records. life, involving your pass on a case delayed a mo- letter, trial court decision on the entire property.” text of For quash request tion to at the of defense see note 8. counsel because “had not had time that such Supreme said Court has depositions”. to take the The defendants its unconstitu- face a standard not opportunity depose had full officials Commissioner, Jury v. tional. Carter responsible jury Ap- for the selection. 518, 320, 1970, L.Ed. 90 S.Ct. pellants right their were not denied to a 1970, Fouche, v. 2d Turner hearing. 567. L.Ed.2d argue that also Defendants E. extra-statu- inclusion such Nor is the system suggester the Northern jury in jury tory criteria in selection standards illegal per se illegal was of Alabama per District se district courts for federal States, 5 Cir. jury Rabinowitz v. statute former selection under the 34. Rabinowitz language majority opinion 366 F.2d despite in the per Rabinowitz,19 system illegal key se. man declare the in cir- No court States, supra; Mobley v. United See of such stand- use has held cuit Rather, supra. illegal Hunt v. United of a show- in the absence ards is showing aof Rabinowitz, on a Rabinowitz turned ing, as that made such Negroes great underrepresentation highly subjective were standards highly subjective jury due group jury lists official a small used group small used standards no effort who made little or selectors grossly jury inade- commissioners com- fair cross-section of the obtain a quate gross of names.18 sources munity and that the result was Negroes underrepresentation illegal per se, If not the defendants jury system. has This Court several argue, key system so of a use man judgments times to reverse refused suspect to the state the shifts extra-statutory standards where similar Negroes proving burden jury per list of almost 5.9 cent of despite 17. The court found that the fact Negro. 2,000 names was per population that 13 cent the adult Negro, per no more than cent majority voted A the en banc court 19. Negro. list This those of the were Judge Judge opinion, but Rives’s was found to be token inclusion. opinion concurring made clear Brown’s by the court noted that selection commis- Judge disagreed with Rives’s he acquaint- personal was based on sioners any specification illegality of the views ance. beyond those enumerated of standards Rabinowitz, although per See Rabinowitz statute. 34.5 cent Negro, population 366 F.2d of the adult 5 Cir. ju- were used the selection of federal Fifth Circuit Judicial Council.20 After Morrow, finding ries. Jackson registration See “rep that voter lists jury- (same n. 5 resent a fair cross section of the com munity Northern District of Ala- lists in the Northern District of Ala States, supra bama) ; Hunt v. United bama” the Council determined that juror (“a prospective should esteemed solely selection should be based on voter good community person registration in his as a plan list. The also estab integrity, character, approved categories sound lished certain people who judgment education”). and fair request be excused on individual categories and other exempt who were challenged let- statement If the altogether service.21 make ter stood alone and we could key assumption men day violent The first of trial the defendants whites, upper-or-middle-class challenge all array moved and to might challenged quash statement be un- petit the venire from which their having apparently ground fair because of its was to be drawn. The challenge been addressed to the interests was that the venire was not key representative rather than to those of the com- men of a cross-section of the munity. community solely But the statement must be because of the excuses light exemptions considered letter established in the conjunction and in with the ad- plan. whole selection The district court de- jury monition that the list was to be nied the motion. regard race, creed, compiled to “without appeal, On the defendants raise two key sex, politics.” Moreover, men or the points regard jury. petit with to the sent these them- who were letters were First, they allege that the court erred selves, according deposi- to the clerks’ summarily denying the motion be- tions, representative of a cross-section they cause present were entitled to tes- community. of the timony support to the court of the 1867(d). motion under 28 U.S.C. This petit jury § for G. The the de provides section that when defendants according fendants’ trial was selected allege facts that plan of the district for the court * * * Alabama, adopted Northern District of true, if would constitute pursuant Jury Selection Serv comply substantial failure to approved by ice Act of 1968 and provisions moving title, of this Gewin, Jury 20. See The Selection 1. Members in active service in the Implementation Service Act of 1968: Armed Forces of the' United States. Appeals, the Fifth Circuit police Court of depart- 2. Members of the fire or (1969). Mercer any state, district, territory, L.Rev. ments of possession or subdivision thereof. plan following 21. The contained the ex- executive, legis- 3. Public officers in the exempt categories: judicial cused and lative, or branches of the Gov- (1) request, excused on any ernment of the United or years age. 1. state, Persons district, territory possession over 65 or or Actively engaged 2. members of thereof, actively subdivision who are clergy. engaged performance of official legal custody 3. Women who have of a duties. Public officer shall mean a age child children or person of 10 public who is either elected to years. directly appointed by office or who is Actively practicing attorneys, physi- person public elected to office. cians, dentists, registered nurses, years age 4. Persons over 70 at the druggists. executing juror qualification time of grand 5. Persons who have served as form. petit juror or in a language state or federal exemptions court 1-3 is taken past years. within the two statute. deputy any 6. Clerks and clerks of state or federal court of record. and, (2) exemptions, present The Act under which statement. entitled party shall testimony stipulates plan promulgated motions support of such objection beginning clerk, of the trial if at the jury commission means which a defend- exclusive available, any records relevant challenge ground may ant “on the otherwise avail- public or papers not not selected con- such commissioner used able formity provisions the title.” with the relevant evidence. clerk, other 1867(e). defend- Thus the U.S.C. § judge did trial clear is not It foregone any opportunity to ants hearing; stated he deny request for a challenge composition of the racial willing to point he was a later that at statutory grounds. on venire testimony, put the defendants allow attempt of to raise the defendants “who Jones of Clerk particularly objections reliance constitutional defense counsel the facts would know” also falls victim F.R. voter lists bring the record. out wanted requires a de- Crim.P. might assuming consti- Even his fendant make known to court denial, summary there were tute a grounds objections therefor. and the allegation true facts in Although object defendants illegally have been the venire to show venire, objection made no plan provided rea- constituted. basing lists, solely on lists voter categories ex- for excuses and sonable Therefore this cannot consider Court fact, four emptions. three plain issue unless amounts to error. categories de- exemptions that See Landers challenged established fendant 577; Wright, Federal Congress in statute. 28 U.S.C. § Practice and Procedure § (6). 1863(b) allege Second, plan that the This contention does not jury was chosen was under which Using plain rise to error. the level of on voter its reliance defective because voting rolls, ap on the basis of registration produced an under- lists22 pellants’ figures, blacks would constitute representation The statute of blacks. per random cent of the source of the prescribes sole source lists as the voter selection for the lists while need- are for unless other sources names per popu constitute 20 cent of the adult supplements a fair cross- to achieve ed lation of the district. On the facts of community. section of the U.S.C. § case, disparity such a does not re argue 1863(b) (2). that The defendants flect unconstitutional discrimination source the voter lists are not a sufficient against underrepresentation blacks. The although because, list here certainly great give is not so as to blacks 850,071 per adults cent of white mere inclusion. token Nor can be registered vote, only per cent are to 54.5 purpose said that there a to exclude was regis- 220,282 Negro of adults are voting primary blacks. The reliance on tered in the district. by Congress prescribed rolls was way, cases, ground best in most to achieve objection venire This of containing brought trial, lists fair cross-sections of the up either was not at the Congress, community.23 the Vot- in the motion or in the oral written plan Jury Gewin, court after the Council district 22. See Selection and Serv- approved Implementation it. ice Act 1968: Appeals, 20 Mercer Fifth Circuit Court of Any erroneous. such conclusion (1969). L.Rev. procedure itself refers to the The statute party which a defendant to ac- the dis- There some indication validity plan, thought may judge may approval tion attack trict thereby making proper. an attack such auto- of the Fifth Judicial Council Circuit matically plan, constitutional Grave § 28 U.S.C. validated the selection any questions challenge implying party effort to from would arise that a could not

§31 ing Rights previously testify highlight guilt had Act in order to voting rolls acted to ensure others and to stress that Flowers “honesty, courage open integrity to all desire had are who South vote, despite in his historical discrimination belief was innocent against Negroes. criminal offense to the stand take jury system exclusion trial. Alabama failed to show In sum, at the time of the defendants’ we blacks in the Northern District hold that purposeful, women systematic co-defendant stances to' comment on the failure standing of the reasons ^[*] Court This contention shows a misunder- ^[*] one in de Luna to ^[*] >> defendant testify25 in certain circum- recognize In that led the right aof case possession two men tried were II. FLOWERS’ MOTION FOR drugs. They been in an au- had arrested SEVERANCE immediately them, tomobile after one contends that he should Flowers Gomez, package drugs had tossed a granted have been of trial. severance theory out of the car window. The grounded This on an as contention each defendant the trial was right serted to comment the failure guilty pos- the other defendant testify, of his as this co-defendants Luna, testify, session. who did not de Court discussed De Luna v. United theory relied on the that he never (Wis 308 F.2d 140 drugs. possessed Gomez took dom, J.).24 hold De We Luna package stand and testified that the dilemma is absent here. exclusively when de Luna’s and that police de saw the handed the Luna he theory Flowers’s defense rests on the package to him told to toss Gomez (1) (2) no crime occurred and if closing argu- it out the window. In Hyde acting criminally, Gantt ments, attorney, Gomez’s in an effort he was not involved in the crime. He theory bolster that his client was argues right “had that he to avail one, innocent de Lu- commented legal every himself of of in- inference na’s failure to take the stand. including him, nocence available guilt attorney of others.” Flowers’s ar- de Luna “an attor- we referred to * * * gued ney’s duty to the trial that he wanted to his client point jury’s possible out the co-defendants’ failure draw the attention to the prior approval right substitute Judicial Council fere with the not to other judicial testify for determination of the issue in his own defense. presented adversary parties. a live case 25. No court a on has reversed conviction Luna, defendant, 24. right In De the first whose the basis of the De Luna to com attorney ment, separate trial, commented on the second defend- in a the failure of acquitted. testify, testify. Wright, ant’s failure to was another to See Federal p. The second was convicted. This Court Practice and Procedure 225 461 § at appeal only (1969). Usually had on the conviction of the the court that finds second, helpful any it which reversed. The actual defenses are not such that holding in the case was that the comment rational inference favor of could one attorney See, of co-defendant’s on de drawn from other’s silence. testify g., 1967, Kahn, Luna’s to failure de e. violated v. United States right denied, Luna’s Fifth Amendment to remain cert. majority silent. A of felt the Court that L.Ed.2d Other 661. involving right disagreed certain cases “the head-on with to courts have collision two between defendants” a de- comment even in the De Luna situation. attorney duty Marquez, fendant’s to would have a See United States S.D.N.Y. F.Supp. 1016, (Weinfeld, J.) comment on a co-defendant’s failure to testify (assertion implica privilege and that such case the trial carries no grant pro guilt should severance that tion of is therefore so without right value). of one defendant to draw the infer- bative guilt ence of the other’s not inter- attempt fail- that guilt Luna’s in an to hold de bribe?” We from inference * * * although integral may Go- there have been some to [as] silence bribery, to there was sufficient evidence F.2d defense.” 308 mez’s right defend- allow the to these to draw convict recognized Gomez’s We fail- ants guilt of extortion. de Luna’s from inference only testify the entire because argue ure “vic- defendants that theory developed of mu- trial shady operators tims” were and that guilt: either Gomez or tually exclusive just payments therefore to avoid guilty, not both but was de Luna Attorney actions of office General’s guilty would de Luna To them. show bribery must be rather than extortion. reasoning exonerate Gomez. argument therefore relies on the legal that extortion occurs when case in this defense Flowers’s right shady threatened, operators showing rationally profit from not could legal right business, stay in have no These de guilt Hyde and Gantt. and that therefore there no extor- was interlocking parts aof fendants were Assuming tive threat this case. mutually exclu were no There whole. making companies all some or guilt the case. Flow sive theories engaged payments practices were theory no was ers’s main defense Attorney office General’s by any been committed crime had might properly prosecuted or closed Hyde Showing defendants. offices, pay- their conclusion that gives support guilty were Gantt bribery ments must be not does follow. defense position. Flowers’s second Hyde theory and Gantt that even Threatening ac to take official But guilty not involved. he was it tion —even where is action that guilty not Hyde Gantt proving duty-bound official to take —for guilt theory. support Their coercing pay purpose the victim innocence, but his inconsistent official is extortion. See proving innocence.26 gave no assistance Sopher, States Cir. denied, cert. or BRIBERY? III. EXTORTION 286, 17 L.Ed.2d 210. in ef appeal defendants On language makes statute operators life insur fect concede may of officials clear that the actions companies made companies ance and loan constitute extortion: payments influ regulation (2) Attorney The term “extortion” means ence the General’s ask, obtaining another, they property But, their businesses. wrongful consent, alleged with his induced extorted victims “[w]ere force, willing participants use of actual or threatened vio- from or were allegation severance, unsupported pre-trial the mere his motion likely give would be more his co-defendants co-defendant Flowers asserted that testimony separate exculpatory give exculpatory trial evidence and that could prej- finding they unwilling grounds for a of such do co- is not would be to so as g. appeal States, 5 E. assert Smith v. United defendants. He does not udice. right 1967, to States a for a Cir. basis contention had, Kahn, 1967, it be v. F.2d 824 at 841. if he would 7 Cir. severance. Even 381 reversing has dis- In one the few cases a con- little avail. The trial of of strong grant ground, determining there was whether to viction on cretion exculpatory States, 5 that testi- reason to believe a severance. Smith v. forthcoming mony 1967, from the co- of this would be F.2d 34. Because Cir. 385 joint separate advantage trial: the second a defendant in a of discretion and open cases, times in court v. had three trial in certain United States defendant prior proceeding Kahn, 824, 840, 1967, a exonerated the one in a F.2d 7 Cir. 381 seeking clearly prejudice v. to United States defendant must show severance. 1965, Echeles, require of failure 352 on the basis a reversal held A courts have to sever. number of 833 fear, lence, picket color of or under offi- force the law or whether or to right. strike) deprived cial that the victim is of these actions are when taken language 1951(b) (2). The U.S.C. § coercing purpose paying. him into interpretation is consistent with an that bribery The distinction from therefore right wrongful may use of an official purpose part the initiative Yet it not be basis for extortion. does the official and the fear and lack explicitly question answer whether part voluntariness on the victim. threatening extortion includes to do what There evidence in this case duty do. official has to finding support to commentary In the Model Penal Code companies paying into fees in coerced such action is within defini the Code’s legal to order avoid harmful action. application tion of extortion And the explicit made. some threats were cases Act in Hobbs the area to which instance, For an official of Fac Alabama primarily it was directed —labor rela toring Company and Finance testified tions —makes clear that this is extortion. Hyde him told he although instance, employer For an has agreement payments an enter right tranquility no absolute to labor corporation’s issue stock would not be right organize a labor leader has by approved Attorney of General’s pickets purposes, strikes and for certain Also, Tortorigi, part fice. Louis owner it is extortion for a union leader Finance, operator of Jeffco testified employer threaten an with labor troubles began company two weeks after the payments. g. in order to coerce Unit E. operations Moore, Harvey employee an Kramer, ed States F. Cir. Hyde,28 approached him and said that part granted 2d cert. denied in buy he credit life in worthless part, stay surance with the out trouble Dioguardi, People L.Ed.2d cf. Attorney According office. General’s 8 N.Y.2d 203 N.Y.S.2d Tortorigi, Moore called it “shake 880, 168 N.E.2d 683. Top down”. officials of the interested companies, such as Held Paramount wrongful It is the use of Life Insurance of Alabama and Orr power otherwise valid duti converts Trans-Southern testified purpose ful action If into extortion. Attorney learned of General’s others, and effect are intimidate forc approve fice would not stock issues un ing pay, them to the action constitutes they paid Hyde. less way, extortion. Put another is the right impartial noted, previously determination As we in the case (i. Discount, Attorney Century issue on the merits e. whether to en- Gen- commentary policeman although 27. The to the Model tortionate Penal Code, Tent. Draft No. 206.3 be derelict if he did not “Theft arrest. § (1954) (which further, Intimidation” And section typical Proposed case covered included subsection Official (8) office, Draft of 1962 as extortion under color § 223.4 “Theft Ex- tortion”) inspector following language: where an includes elevator or tax report harm threatened need not be collector threatens violations ‘un- may privileged might large lawful’. The actor be lead to non-criminal duty penalties. even bound to inflict lies to that the harm offense close bribery, threatens; yet employs which he if he same transaction may crimes, harm threat of to coerce a constitute both but if the transfer property present for his own benefit of intimidation he clear- element ly belongs among present apply. those to whom section will theft applied. sanctions should be The case of policeman Harvey duty who was is under a to Moore named as a co-con- spirator point. make an arrest Count Two of the indictment illustrates His to threat arrest was not as a unless the ar- but named defendant. pays money clearly restee him is ex- they paid to that did because action nesses who so took affirmative office eral’s they Century in- ruin frighten officers feared financial otherwise. Discount’s This occurred the defendants. paying to credibility The defendants attack the part vital records removed when Gantt furnishing of the the above witnesses investigation At- and when an official testimony. They argue that the witness- torney a suit filed Flowers General retrospect es were bribers that Hyde against company. with was they testimony doctored to exon- their Attorney General’s the members creating picture erate themselves immediately seizure of after office Supreme said extortion. has The Court once that the records and said to Gantt very response to contentions: similar investigation company had of the short this is that answer to “[t]he from he take it launched would been credibility question for of a is a witness there, * * * implying be the that would jury. not to It for us Brozman, presi- for extortion. basis weigh the evidence or to determine parent Century Acceptance, dent of credibility of witnesses. The verdict he came company, testified that when must be if there is sub- sustained happening to see what Alabama evidence, taking stantial the view most sug- Harvey subsidiary, Moore Government, support favorable help gested be him he could States, 1944, it.” Glasser v. United problems. to see took Held in his Moore 77-80, 457, 468-469, sought Hyde, payoff. who appears 86 L.Ed. There 703-704. appeal no reason on this to disturb the supporting There was also evidence jury’s finding. fact finding general of a on the scheme The fact that relations between part of the to extort the victims and the extorters were often Indeed, companies. these similar cordial not inconsistent with out, Hyde great extortion. pointed deal offered Knowing they mercy were at the of the credit life insurance business Attorney office, General’s it is a fair Aspinwall Alabama to of United Secur- inference that the that to ity victims felt save (USLI) Life Insurance in return for they keep their businesses had to ex- per gross premiums. cent of the torters purpose satisfied. was to use the collec- USLI as agent payments tion from other com- presented government The evidence panies. part That of a scheme payments respect with some simply pre- of extortion than rather explicit threats reference to made no paredness spontaneous widespread, infer that these could coercion. efforts to bribe Flowers’s is shown pattern general people knew statement made time. Ac- at the same sought Hyde out with extortion cording Aspinwall’s testimony, Flow- knowledge they deal have to would any company ers said that loan get eventually their order to him give not insurance USLI the credit life persons approved. if these Even issues padlocked. business Addition- would coerced, they is, will- were Coe, ally, Jerry attorney, testified bribers, ing other find that could Hyde, Flowers, presence payments coerced were made victims sought to have him serve as a collection paying extortion. into agent following for the extortion in the Hyde people manner: would refer seek- EV- INTERSTATE COMMERCE: IV. ing approval of to Coe and stock issues IDENCE, FROM IN- VARIANCE charge tell him what fees them— DICTMENT CHARGE TO AND implication being would JURY pay have to fees order to have Sufficiency A. Evidence approved their issue later —and money. him applies tell how to distribute Act Hobbs testimony degree There way was also obstructs, from the wit- one “in who delays, in affects” interstate commerce. Alabama was in interstate commerce following 1951(a). ways: The defendants it had a reinsur- U.S.C. § agreement urge appeal jurisdictional ance with a Tennessee insur- Manage- proved company; dis- and below. We ance element Arkansas was ment, part family agree. corporate record of in the a There evidence of Arkansas, support of Paramount Life the conclusion that each Insurance companies company’s policies issued in the indictment the Alabama mentioned books, kept inter- and in for a to some extent its financial was involved both and that the extortion fee. state commerce sufficiently interstate commerce affected (4) Corp. Trans-Southern was estab- juris- support the exertion federal $50,000 capital, $15,000 lished with seed statutory criterion. diction under of which was contributed a resident following Colorado. con-

The record shows Trans-Southern was holding corporations company in the ceived a a those mentioned of as for life —all company in interstate indictment —were involved insurance and a bank. Trans- following ways:29 in Southern Life was established as commerce and part operations its had reinsur- (1) Factoring Finance and Alabama agreement ance insur- a Tennessee factor, Corp., purchased Ala- company. company acquired ance represent- bama manufacturers invoices the bank. ing purchasers. sales out-of-state (5) Century pay- Corporation Thereafter it would have to collect Discount twenty purchasers. corporations in fact Alabama from the ments out-of-state wholly buying rep- Century Acceptance effect, Cor- such owned invoices publicly corporation financing poration, in sale owned resented of interstate City, compa- Kansas These transactions. Missouri. nies were in small loan business. register- (2) Associates, Aspinwall & essentially The subsidiaries were local Ex- with the and ed Federal Securities parent company: offices of the when change Commission, to, was established funds, they lending needed additional did, wholly-owned create later parent corporation in would borrow subsidiary, Aspinwall Company, Florida City, Chicago, Kansas New York purpose building a marina cities, other forward funds to Additionally, Security Florida. United offices;. local when ex- these offices Company, corporation Life Insurance hand, they cess funds on would remit paid Aspin- the extortion to benefit City. During period them to Kansas Associates, wall & in inter- was itself conspiracy, offices Alabama primarily state commerce. Located corporation $5,000,000 held about Alabama, also did USLI business in receivables. Georgia engaged Mississippi. It was enough activity interstate raise several ob trading SEC to order it to cease its stock. jections to reliance these First facts. (3) corporate identity prob raise the Paramount Life Insurance Ala- instance, they argue up by bama lem. For was set Held and others indictment refers control of Paramount to interstate commerce Life Insurance of Discount, Century proof whereas Arkansas. Arkansas residents invested Century Acceptance $130,000 Foundation, paid the shows that Paramount organizer showing extorted which fee that no became the Para- twenty made mount which operating subsidi Alabama. As an company, life aries Alabama received funds insurance Paramount States, 1944, appeal apply 29. On Glasser v. of course we the fa- 60, 80, guilty miliar rule that after 86 L.Ed. a verdict of the evidence must be Gilliland considered light government. most favorable to the 385 F.2d 912. organization engage Additionally, Century Acceptance. that will in such an from Tropi although the inter- commerce. See States they point out ano, Aspinwall cert. aspect Cir. & commerce state denied, indictment, Grasso v. cited Associates (in nothing; 1021, 90 25 L.Ed.2d 530 paid it company was Unit- by Company— requirement met Security terstate commerce Insurance ed Life Aspin- expectation of refuse people of further orders same as controlled state). out paid trucks and containers from to secure wall & Associates —that registration. Aspinwall Associates’ & further contend The defendants they point And out the Arkansas on commerce the effect interstate money put into Paramount financiers re de minimus the statute while Alabama, only into but Life Insurance of quires impact. a What substantial Company, Paramount Foundation shown done with defendants were to have funds in and invested its turn established respect this: commerce is to interstate in Life Insurance stock of Paramount having power the con to interfere with Alabama. operations of a number tinued Alabama be approach cannot formalistic many that, companies although Such local in of these true nature to hide used ways, significant aspects, had interstate of extortion enterprises the effect the defendants threatened existence companies was set of them. Each money companies and extorted integrated, operating one practice price In from them of survival. companies large enterprise. were These doing, so under Count indict One ex- together the minds ment, tied the ex defendants threatened impact interstate com- on Their torters. company istence of a finance that would divi- their diminished was not (Alabama merce interstate sale transactions corporations nor was sion into different Factoring); company proposed of a particu- identity of the it (As affected to build a marina another state family that ac- corporation in each lar pinwall Associates); & and of life two pay ex- up tually put funds companies, insurance one of which tortion. (Paramount) was on the established ba large sis of financial contribution from Additionally, ar the defendants continuing Arkansas financial gue companies not were that some of corporation relations with its sister engaged at in interstate commerce Arkansas, (Trans- and the other of which They say, of the extortion. time Southern) partly by was established Factoring instance, Alabama out-of-state investment and had a rein any months buy until several invoices agreement surance with a cor Tennessee Aspin paid And fees. after extorted poration. Count relies Three its marina Company did not build wall effect on Paramount Life Alabama. year extortion. after or so until In the on which facts Counts Two and argument is without merit. This based, Four are the extorters threatened registration companies formed, and operations to close the local of an inter sought, with a stated for a sale was stock operation state small loan in which there going purpose into the activities interchange money awas continual finding com support interstate parent company between the in Missouri nor the Con merce. Neither statute local subsidiaries. company requires stitution im engaged sufficient transaction These facts show an interstate support pact to meet commerce the extortion interstate the moment of impact on statutory jurisdiction. requirement. reasonable read A federal language statutory not be ing “in need substan interstate commerce argue. delays, tial, degree obstructs, Stir way or af as the States, 1960, 361 U.S. is that it in one United commerce fects” interstate Supreme preventing 4 L.Ed.2d cludes establishment “ * * * also conclude that the involvement Hobbs Act Court said the manifesting language, speaks Paramount Life of Alabama Insurance broad purpose alone suffi- all the constitutional interstate commerce was to use Congress punish power cient for it to consti- interfer interference with has affecting extor tute interstate commerce with- ence interstate commerce with tion, meaning robbery in physical And violence.” of the statute. Appeals, in Court of the Second Circuit B. Variance the Indictment from Tropiano, 2 Cir.

United States v. resting contend that defendants denied, cert. Grasso finding jurisdictional a interstate United on commerce enumerated facts above 1258, 25 L.Ed.2d held that has in Fifth conflict with their Amend- “ * * * extortion of vio or threats right only charges ment to trial on lence need affect interstate commerce brought grand in an indictment degree in a minimal constitute jury. a violation.” standard Hobbs Act is therefore different In Stirone v. United Act, that under re Sherman which supra the Court voided a conviction be quires impact substantial interstate prose cause the district court allowed Malinsky, commerce. States v. charged put cution to into and evidence S.D.N.Y.1956, 19 F.R.D. 426. respect with to information aspect

By standard, about an jurisdiction interstate the extor re- quirement aspect tion in certainly victim addition was met toas Counts specified in Two and The de Four on indictment.30 the basis of the inter- allege prosecution Century Acceptance fendants here ference and charged relied on totality facts not in the in Also subsidiaries. inter- dictment state rather than those interstate contacts under Count One was suf- grand jury ficient commerce facts that did for interference with these busi- charge.31 consider and nesses to affect interstate commerce. We portation Stirone, charged between the several states indictment cheeks, receivable, victim, ready-mix accounts and Conversely, many terstate commerce. of aspects the interstate commerce the of c) jury’s a) jury’s [withdrawn from considera- [withdrawn from considera- n tion] tion] d) b) The Century Corporation, Paramount Life Insurance The Discount Company Alabama, of corporation, Alabama cor- an Alabama was established poration, established, to, as, and did busi- and did do business a small loan as, legal company, ness an old line reserve life in- and finance which business company and, such, lending borrowing money surance the re- included and company' purchasing selling serves of said stocks, in were invested and and debts and obligations. Century bonds and other securities. The The Discount Cor- purchase poration corporate said subsidiary and sale of these securi- is a the of required transportation among Century ties Acceptance Corporation, a Mis- monies, checks, several corporation, through states of records souri its account, and operates securities. subsidiaries finance and loan e) Corporation, companies (16) The Trans-Southern in sixteen states and corporation, an Alabama life, accident, was estab- further writes credit health to, as, lished physical and did damage function a hold- and insurance and their ing company, operations in required assets of which transportation part ownership consisted of among stock monies, the several states of the Bank of checks, Huntsville and the Trans- records of account and securi- Company. Southern Life Insurance ties. reserves (18 the said 1951) Trans-Southern Count Three: U.S.C. § Compay Life Insurance were invested Jury charges: The Grand further stocks, bonds and other forms of se- Paragraphs 2(d) 1 and of Count curities, purchase and sale of which realleged One of this Indictment are here required transportation among incorporated though and herein as set monies, several states of checks records out full. of account and other securities. Fur- pertinent hereto, 2. That at all times ther, operation Bank original incorporators of Paramount required transportation Huntsville Company Life Insurance Alabama checks, currency among and (hereinafter securities referred to as Paramount of the several states. Alabama) principal were the officers and (18 1951) Count Two: § charges: U.S.C. shareholders Paramount of Arkansas Jury The Grand Arkansas, further Rock, with offices in Little pertinent hereto, That 1. part at all times incorporators and further said of the interstate commerce voting subscribed to the stock of Para- United States has consisted of the trans- through mount of Alabama the Arkansas portation between the several states of Management Corporation of Little Rock. including articles and commodities mon- (18 1951) Count Four: § U.S.C. ies, notes, receivable, accounts and other Jury charges: The Grand further security representing forms of debts and Paragraphs 2(b) 1 and of Count obligations used in the maintenance Two of this indictment are here real- operation, of small loan com- finance leged incorporated though herein as panies and other financial institutions. set out full. pertinent 2. That at all times here- to, following entities, business proof 32. The of the interstate as- commerce Jury unknown, others doing spect Century Century Grand Discount Acceptance business within the of Ala- allegations State followed bama, engaged inter- except and further were Counts Two and for minor Four above, to state commerce as described variations. wit: Charge Jury C. companies See involved in case. 31, supra. description of the note Hyde, argue Flowers Gantt further particular specific com- activities of the appeal judge’s the trial instruc- language

panies indicat- is introduced erroneously deprived tions its given ing specifies ex- are finding regarding role in facts in- allegations amples of the broad about terstate commerce. aspects of the establish- interstate All of the Act cases Hobbs operations companies.33 ment and agree that the court determine should indicting grand apparent It alleged whether the facts meet the statu types ac- mind tory requirement affecting interstate proved at would consti- tivities the trial e.g., commerce. See Hulahan United v. tute sufficient interstate commerce con- 441, 8 Cir. 214 F.2d cert. statutory tact to meet the criterion. denied, 99 L. proof go beyond therefore Ed. Nick 8 Cir. indictment. denied, cert. But Nor is it L.Ed. 550. fatal the convic cf. Kramer, supporting tion States proof there was no 891, 900, specific part vacated, some of another interstate com 100, allegations 1366, U.S. 86 merce As S.Ct. 16 L.Ed.2d 396. indictment. long approach remaining telling This portions as is the of in used rather the than jury validly general charge crime, the in dictment a ex terms what it means the surplusage allowing jury affect istence of the commerce the in indictment validity will not affect the determine of a whether the meet convic facts States, criterion, tion. jurisdic See Thomas 5 because this United is v. 531; 1967, Cir. tional 398 F.2d element for United which the court has States great Straus, 1960, responsibility.34 v. ju- 5 Cir. 283 F.2d It for 155. is the incorporates general underlined, 33. Count Three the defendants’ al- counsel that he legations proof of Count Thus “if believed” “bore it” One. the down on as plain signs of interstate that commerce facts other than inflection as well as by repetition specified paragraph put those in he the issue two of factual the squarely general jury. charges count within to the is still the grand jury language judge’s in the trial indictment. used charge is United derived from Nick v. 1941, 660, 8 122 cert. Judge aptly F.2d points out, Cir. As Rives “At 687, 302, evidentiary stage denied 314 62 86 U.S. S.Ct. of the trial there 550; unique nothing L.Ed. v. Hulahan is about the commerce is- ‘jurisdictional 1954, 441, 8 denied sue Cir. cert. as a element’ ”. The 856, 81, impose great 348 U.S. 99 issue 75 S.Ct. L.Ed. does however re- Green, 1957, sponsibility United States 246 proceed 7 Cir. on the trial court to 155, 871, caution, F.2d cert. denied 355 78 because interference with 122, Nick, S.Ct. L.Ed.2d In interstate commerce is the element of the charged involving indictment extortion Congress conduct here enabled to de- association of and oth movie exhibitors clare that common law extortion can be a appellants persons in er Louis. The St. federal crime. And words “affect in- alleged in the district court erred terstate commerce” as used 18 U.S.C. stating “that if evidence the wit require legal § 1951 conclusion based on outlining stoppage effect of nesses jury. presented the facts to the picture industry in the motion Louis St. judge proceeded We that the think trial by you, is is to believed and believed cautiously when on four occasions he used result, course, sub is direct and jury “if the words believed” to make the upon with or stantial interference effect jury’s it understand that was the function * * * Court [The interstate commerce. to determine whether the Government’s proper Appeal There is no basis held:] allegations were true or false as to the de- It is not for this criticism. relating fendants’ activities to interstate to determine what is or is not interstate It commerce. seems clear us that question commerce—that is a of law. It “if charge words believed” addressed to the that if is for the court and mean “if the believed”. are certain facts covered evidence accept explanation judge’s We the trial then is shown there such interference. Judge supplied) Hand, Learned has said: facts, “If these were the the business was and its what the court stated This is ques law, interstate as matter sup- proper.” (Emphasis statement plied) tion should not have been submitted to * * * Hulahan the extortion nobody jury; the facts, and since contested the companies de- local construction involved pendent upon legal effect, but their it was shipment sup- interstate unnecessary say anything * * plies in- said: “The *. Court (Emphasis supplied) on the issue.” Unit complains Hulahan struction of which Compagna, 1944, ed States v. 2 Cir. you, charge T as as follows: reads F.2d cert. denied 324 U.S. law, you if believe matter of years 89 L.Ed. 1422. Ten later testimony witnesses the Government position the Second reiterated Circuit its jurisdic- federal with reference to the Varlack, in United States v. in- tional element of interstate commerce 225 F.2d 665: “We conclude under our say, case, the Gov- in this that is volved applicable law, view of the proper testimony with reference to the ernment’s * * * to instruct materials, bringing various commodi- testimony if it believed the ties, equipment, from out state respect Government witnesses with job question federal sites foreign engaged interstate by commerce judicial you district, then are instructed * * * alleged then, victim activities shown defendant’s law, jurisdictional a matter of ele yon testimony, believe the Government’s if present only questions and the ments were same, delay, obstruct and affect open were whether the acts left language interstate commerce as constituted extortion or an at under which these used the statutes tempt to extort and whether the defend * * * charges brought. are We think conspired money prop ants to obtain jury, court, and not it was for ” * * * erty by such means. whether the Government’s to determine problem same before us was raised believed, bring evidence, the ac- the Third Circuit States within tivities of the defendant the statute Lowe, cert. Cir. jurisdiction.” (Em- and sustain federal denied, L.Ed. phasis supplied). Green, In the court 2d 56. “ * * * being How so as this said: fwr problem ap by “The next raised the high- tramway commerce an interstate pellant presents question law. He of way may or whatever we desire to call by complains original the instructions of it, you testimony believe the the of if supplemental in the court and certain witnesses, unquestion- Government given instruc structions because these highway. ably an interstate commerce jury de tions did not leave to the the * * * clearly of It was the function alleged termination of whether the con interstate to determine whether the Court affected commerce duct the defendant the commerce was affected and whether in of article the movement jurisdiction under the Act.” Court testimony There in commerce. was supplied). (Emphasis part concerning this the case the piece gas pipe played Ricciardi, line in a dis In United States v. 2 Cir. system origin denied, 1965, tribution which had its F.2d certiorari 357 partic in Texas to the effect that 942, 1464, L.Ed.2d 384 U.S. 86 S.Ct. 16 piece ular of line was connected to a proper 540, the commented on the Court part the line meter which was main allocation of duties between court supply. from the source The trial jury determining jurisdictional ques- judge these statements to mentioned brought tions in criminal cases under 29 you jury Tf believed be and said “Although in as 186 follows: § U.S.C. yond satisfy [they] doubt a reasonable jurisdictional both cases now before us the necessary jurisdictional ele the federal jury, question the to the was submitted the ment interstate commerce under question what activities constitute law under which this indictment was industry affecting 29 commerce under judge drawn.’ instruction the always re- 186 has almost been U.8.G. following Hulahan was v. United garded question the as a law court 1954, 441, cert. denied 214 only decide, leaving jury the to the 81, 675, 856, L.Ed. 348 75 99 U.S. S.Ct. the de- what activities determination report closely though he as as had the engaged in. [Cita- had in charged him when he fendant fact on his desk before jury. tions The same allocation omitted]. We have doubt that he the jury right." (Emphasis supplied) between court and has also functions Sparf Harlan, Act, Mr. the similar Hobbs The first Justice been made under * * *” 15 (Emphasis 18 U.8.0. ry to determine the facts have whether The instructions of the trial is, they judge proved, whether be- been that below meet He this standard.35 respect explained jurors they lieve the evidence with factual elements the indictment determine whether “believed” explained charge. prosecution’s regard in the evidence with he would be United States v. that own judgment, presented Judge system I, law in a reasonable doubt that if ing, 919, formly applied, an) ; 94, cussing leaves to the Law) S.Ct. at the will of the exhibit dict ed, doubt, “ ‘ * * * the evidence is uncontradicted eration in that ease. tionally, Justice ne’s Eunomus or 185], quoting Law and Constitution of overstepped court leave to the statutory requirement and is uneontradict had done so in the at 27. of the facts rather than “an 15 S.Ct. 289 * * quences of various sets of facts. charges case of See 156 S.Ct. (Com. Judges you is whether credibility apply bring judge’s general uncontradieted, the the court testimony 91 franchise which inheres in the attempt past ; *. cannot prohibition against directing Clark has under are convinced Anthes, the issue such a criminal case means that general S.Ct. judge may Rives denies that he is in. 21, 24-25; &281 Really, to Harman, pardoning ladies and eases and 39 L.Ed. jury you his bounds as law various constructions even the (Chief you 2231, tell from Chief Justice If the evidence meets the construing Justice Harlan guilty establishes his legislature 156 U.S. at Dialogues Concerning [Com. v. 15 S.Ct. 290-291 terms. The trial court function for is what said, Harlan’s about all “the final determination 288, requires uncontradicted evidence Ragsdale, jury only directly revive the democratic though were convinced [4 Pa.St. and thus left charge even a function is Justice beyond gentlemen, cert. secondary instruct the Also some of L.Ed.2d 696. simply stating England). happened. the (Foster, Anthes, Gray all the evidence den’d 403 concluded that while not dis- Judge should be uni- I rationale under consid- culprit the fact what verdict 5 Cir. Shaw left for a reasonable long Count legal evidence 269]) guilt.” at the court. the excerpted materials in Count & properly 286-287 to has not making Vaugh- beyond Crown (Wyn- as he a ver whose conse- Addi- ; 1971, them jury, find- U.S. your jury And I.’ Id. As as ” 35. The under the Hobbs jury’s theory should not judge effect, however, notion of law. determine Title if from the yond dence if fendants fected found, found, United States Code Hobbs so as to interstate commerce that a the defendants ants named has been that to interstate Code, ed that the evidence be tion. and that one of Court yond requirements Counts Jury, it ernment’s Count dence, if believed. As to Count Now, Now, I instruct * ^[*] following you believed, each count guilty judge’s charge the law as well”. if raw a reasonable 18, insofar Section has One or as a find one or Act and sustain federal conspiracy as a One and as to Count you reasonable justice is the Ladies and requirements having what to determine whether the interstate evidence connection met * ^[*] evidence, if the conduct of power Section bring as found, as matter of language: matter of find from within the meets the in this count to beyond you that matter of as the conduct commerce duty by charged, 1951 of Four, I for what is determine named in this is interstate affected interstate Act is to broaden the Two the overt acts to substitute its the Hobbs Count the activities of the ^[*] allowing doubt, * existed as presented doubt, 1951, more committed, Three, a reasonable commerce was af- has with Count have been met Gentlemen of the in criminal believed, law, of the Hobbs government’s the requirements charge Title Two or the Court being affected. one or The inevitable you law, United States scope the Court been Court the facts but ^[*] * I that evidence, properly the defend- indictment, to charge charged of the de- find from Act, commerce defendant establish- count, to that you affected, jurisdic- included you, be- more of the evi- charged doubt, guilty Four, cases :|: * com- both that that law, gov- own Act you evi- has has the be- government that, Indeed, at each if believed to interstate commerce. statutory jury jury, re point meet instructed the when the court quirement. require A number of courts have to the interstate commerce as supporting ment, be done this when the facts the words court used “if aspect jury impress upon that interstate commerce of the case lieved” long fairly simple.37 in jury’s But in a to determine was the function one, allegations against de case volved such as review

whether light allegations the factual carried risks fendants were true false. charge over-simpli omission, over-enumeration, de of earlier instructions compounded by scribing fication of facts court as law some the role jury over-complication giver of other as fact- facts. and the role question finder, phrase under whether summarize evi “if believed” to have dence is one efforts within the trial court’s dis scores the court’s careful Gillilan, of its cretion. See United States the nature understand 1961, (L. Hand), attorneys 2 Cir. did ob 288 F.2d 796 function. The defense denied, Apex Distributing ject Co. v. had not made clear cert. that the court 38, States, 821, to determine S.Ct. to the that it was 26; Orfield, 7 L.Ed.2d Pro trial Criminal of the facts. But existence pointed cedure under the Federal 30.13 he Rules twice § out (1967). pp. vocally emphasized “if 42-43 be words thereby made clear lieved” and had In the context of think this case we underlined, “I if be their role: the trial court did not its abuse lieved, on it”. on four and down all bore failing discretion in enumerate Again, point you “Now, on I out interstate commerce defense facts. The inter each one of the instructions as to made no effort facts contradict underlined, I state commerce finding relied on in interstate commerce red, Finally, respect if believed.” Additionally, affected. none of “ * * * to Count Four the Court said: charges proposed submitted the de- law, found, the Court a matter has fendants contained such an enumera- in connection with evidence tion. See Stilson v. United Four, believed, Count the re meets 583, 588, 63 L.Ed. U.S. ” (cid:127) * * * quirements of the statute. Although defense counsel sub- whole, Taking the Parr instructions charges proposed mitted a number of v. United 5 Cir. issue, the interstate commerce all these cert. denied 358 misinterpretation reflect a of the law say cannot L.Ed.2d we they attempted give effect the court directed a verdict question of law whether the facts Gollin, this issue. Cf. United States alleged were sufficient to meet the stat- 166 F.2d 123.36 utory affecting requirement or ob- recognize acceptable structing We interstate Al- commerce. approach charging might though neither of these factors would alleged have been to enumerate the facts neutralize a directed verdict merce, thereby sustaining jurisdiction and stitutes of this court jurisdiction scope Court’s within the and is a matter for the court to deter- the Hobbs Act. mine not a for to and matter determine. clearly 36. In Gollin the court took the is- F.2d at 166 125. away following sue from the instruction: you See, g., in- Under this state of facts are Hulahan e. 1954, 441, 445, denied, that structed as a matter of law the cert. F.2d Cir. moving 81, truck was interstate com- 348 U.S. 75 S.Ct. 99 L.Ed. merce at the time it is contended v. United Nick Cir. government 660, 673, denied, that the beer was stolen cert. 314 U.S. therefrom. That a law. matter of 86 L.Ed. 550. disputed The facts are not that eon- court, question of enumeration is efit is irrelevant. One need receive no personal within trial guilty extortion; court’s discretion. benefit to be gravamen of the offense is loss to EVIDENCE OF V. GANTT’S GUILT victim. Provenzano, United States v. 678, 686, denied, Cir. cert. appeal, attorney On ar Gantt’s 13 L.Ed.2d gues only that one testified that witness Gantt received benefit from alleged conspiracy, respect evi Four, that there was no With to Counts Two and extortion, that participated dence this involved and Gantt in the extortion from sugges Century Acceptance. that the had initiated the witness It who was Gantt tion that could a he sell some stock to took the from records the office of Cen- price. tury brought friend of gument a Gantt at This ar low Discount of Prichard and Hyde is without merit. to a them hotel in Mobile where said that the office staff should do re- evidence does that Gantt show investigating he would take ceived benefit from The friend this deal. certainly matter from there. It was to whom “sold” a these stocks were was proper for the to infer from this carpenter, Bowen, was the one who participant evidence that was Gantt Wilson, Harvey brother-in-law of one operation. the extortion amounting $13,- the coterie. Checks to price company respect One, the- at which the With to Count Gantt although oretically bought Orr, Trans-Southern, stock called back this his into begin really sign agreement Security paid it had for never been to office to Merchants, an with, Harvey conduit, all went to Gantt and Wil- another to effectuate cheeks, They Hyde pay $90,000. had Bowenendorse the deal made with to son. Additionally, for and Bowen himself received acting was Attor- Assistant $350 Gantt ney as the straw man. General-Assistant Securities Com- direction, he missioner. Under Flowers’ finding supports The evidence also charge processing requests It that this transaction was extortionate. grant- issues, approval for stock Baker, true Diversi- officer ing exemptions end to sell stock front suggested Corporation, fied Financial licensing issue, prior public exempt, Gantt there was available sum, could stock salesmen. to a front-end that could be sold stock from the evidence Gantt conclude very price. But friend of at a low Gantt pattern. part of the extortion testimony, may been from simply suggestion the method MOTION FOR CONTINUANCE VI. paying the extortion. Baker testified KELLY’S ILLNESS BECAUSE OF commit- that he was told his executive AND SEVERANCE Gantt, he he tee that needed see Gantt, wanted trouble from beginning days Three before suggested him that he felt Gantt Kelly, co- one of the of the trial James get up give had to order to he stock defendants, at heart serious suffered stock salesmen licensed. his inbe that he would It was clear tack. evi- extortion was entitled find proceed trial for no condition dence. possibly in for an three least months period. his case was Therefore Regardless definite whether Gantt de three of the other from that an severed this instance receive benefit sought They a continuance transaction, other fendants. there was extortionate prejudice the basis of trial on participation their evidence Gantt’s Kelly’s arising absence. allegedly from charged and One conspiracies in Counts continuance, charged judge denied the trial The offense and Two the substantive this assert appeal defendants the other and on was no That there in Count Four. receiving personal ben- as error. evidence Gantt only that were sert that contend this was the evidence defendants The any continuance under Scott connection to a between defendants entitled payments and 5 Cir. Trans-Southern’s to Se- curity a denial found that The this court Merchants. record does not in which support testimony of discre- was abuse this assertion. The of a continuance judge passing Hyde, to the trial was that met told Orr with who tion allowed get pay That case postponement. him for that he would have to his on motions to distinguishable. approved. Kelly merely men were There two stock issue was is conspiracy present defraud. charged meeting. Later, a to at this with Gantt according conspirator to Bard, Montgomery; told the chief Orr to come to when indictment, pleaded did, con- had nolo presented he Gantt him with a con- had trial. Scott Scott’s tract before between Trans-Southern and Secu- tendere testify rity making his trial subpoenaed to at Bard Merchants as the cover for attend, agreed agreed but he payments to and Bard earlier to with his Hyde. Kelly minute telephoned last on so at the re- to do later Orr to failed overdue, payment advice. him doctor’s mind that a was point. but this was a minor is different in two here situation Kelly First, by a co-defend respects. was The second transaction cited attorneys stat to tried. involved First American Life ant still be pres- Company. Branum, that there was ed to the trial Insurance testify Kelly certainty company, Hyde, his ident that of the met with re- certainly demanded, pay Hyde and that he would fused to what first own defense Hyde, bargained testify price Flowers at the trial and at which not over severance, Gantt, given even his he would be allowed to issue stock. Two agreement un permit Given the his health would it. eventual facets testimony certainty ex Kelly: first, could be com- are relevant to Kelly, pected pany agreed Kelly $50,000 defendants were from to with lend buy Hyde’s Florida; on the to a entitled continuance not which to house ground necessary Hyde second, to obtain a was to name was to be able testimony person put company’s pay- See of a crucial witness. to on the years. per for four roll at month Blackwell v. $1000 denied, Kelly named, cert. the one and the under- was standing, by L.Ed.2d 747. from Bran- as shown letter payments Kelly, um to trial, according Second, proof at pay to used month off would be each important Kelly to the con- was much less mortgage Hyde was the chief ac- note. Bard, charged spiracy than was here meeting; tor for the defendants response conspirator in Scott. chief documentary there was evidence Kelly’s pres- defense contention salary Kelly link between aspects rebut crucial in order to ence was mortgage in- payments. note prosecutor proof, stated testimony toas dependent fact added proof put about on no intended he Kelly that Kel- statement was Branum’s judge re- Kelly’s acting The trial alone. buying ly he was said the house denying mo- on this lied statement money company’s Hyde with for continuance. tion actually But Richmond Flowers. figure; Kelly he was is not central attributable independent action messenger basically conduit and a statement, co-conspirators. It focusing can be seen funds. This trial the defendants truth of which appellants cite transactions the three position evaluate in a would be respect pay- in their With briefs. untrue. rebut —if Trans-Southern, the defendants ments meeting Kelly Kelly arranged testimony Third, tele- point Orr’s suggested intro- that he Aspinwall his phoned some of him said Kelly’s Hyde. absence Aspinwall payments as- duce The defendants late.

845 denied, prejudicial cross-exam- cert. not here. On was ination, able to show that L.Ed. the defense was 550. per- Aspinwall asked third in fact had require explicit The statute does not an get Kelly son, Wilkinson, in touch to have threat from the defendant. him. with requires only It that defendant in- mo At the the court denied time part property duce victim to his with likely continuance, for a it was tion through the use 18 U.S.C. fear. § indefinitely. Kelly would be unavailable 1951(b) (2). permitted The is unlikely testi It he would find such inducement use fear During trial, his fied at the trial. testimony of mind as to the state councils from the defendants’ absence ** of the victim *. prejudicial: a chief not was not he Tolub, United States v. 309 F.2d at trial, conspiracy. actor Before The fearful of mind victim’s state great time had deal the defendants proving is a crucial element extortion. they Kelly and in obviously to consult which with testimony oth- of victims as what opportun made use of them, testimony ers said to ity as in their cross-examination shown they others is as to what said to victims meeting Aspinwall respect to with his admitted not for the truth the infor- Kelly. therefore, hold, that the We mation in the but for the fact statements judge not his discretion trial abuse they that the victim heard them and that v. denying McKissick a continuance. produce would have tended to fear in his 379 F.2d 5 Cir. United Wigmore point- mind. As Professor has ed out: VII. ADMISSION OF TESTIMONY Wherever utterance is offered to TO STATE OF SHOW VIC- evidence the state mind en- TIMS’ MINDS person consequence sued in another object to sev The defendants utterance, is no obvious that types ad trial eral of evidence the sought is assertive or testimonial use testimony First, object to mitted. by it, to be made of and the utterance concerning state and others victims admissible, as the far therefore so payoffs were ments made to victims Hearsay rule is concerned. necessary official to avoid unfavorable (1940). Wigmore, Evidence See Attorney office. § action General’s States, supra. Nick Thus it instance, Held, president For of Para- ground objection third for Insurance, that an mount Life testified making person vic- the statement to the attorney payments him told were produced or even tim is as a not witness necessary approval of stock issues. defendant’s that he is right named. payments He also that he knew testified preserved cross examination is things required I “because of knew he that truly can ask the witness whether he Orr testified to be true in the state.” fear-producing state- heard these him told that two named individuals ments. ap- pay percent companies had to may testimony used to not be Bran- Such proval of in Alabama. stock issues fact made pay- show that learned that urn testified that he of such general made use required threats otherwise from his ments were convincing pay. the victims fear in of events in the state. awareness properly instructed here was ap- previously Act cases have Hobbs testimony determin- consider testimony allowing proved similar ing of mind. victims' state bearing mind. victim’s state of on the object vehemently Tolub, The defendants 2 Cir. See United States testimony from Tor- Kennedy, 286; admission F.2d States v. Newsome, torigi’s attorney, that after Nick v. United receiving de- him of had told his client Cir. 846 Tortorigi allegedly payment this improper incidents, mand for he told ber main- judge, ly prosecution how-

was The trial actions of “blackmail”. the volun- tary ever, witnesses, instructed the advance denied the statements only relevant the statement it was defendants fair We find that trial. Tortorigi’s allegations this to mind. For state of some of the in- enumerated purpose error; the statement was admissible. volve no those that are erroneous deprive did not fair the defendants of a The other evi defendants’ trial. dentiary objections require no extended (1) object They discussion. to victims’ alleged At least one of the im they money. testifying why paid the government proper actions the attor example This is another of the admis neys clearly scope seems to us within the sibility of evidence to show the victims’ why prosecution of rebuttal. asked state of See Bianchi mind. government was concerned witness 8 F.2d Cir. 219 enough taking picture about of his (2) Wigmore, (1940). Evidence 581 § conferring while he was with federal prior government’s to a reference agents public place request in a witness, refresh statement of used to agents get picture re back. He memory, “deposition” as a was not his plied, “I was concerned that were prejudicial. Roberson v. Reliance on picture taker someone who was close * * Cir. Attorney General’s office (3) therefore, misplaced. Branum’s proper This was On cross-ex- rebuttal. handwritten notes on the details of questioned amination the defense had Wolfinbarger settlement between agents sending about witness for Hyde, meeting made at a at which Bran- picture attempted had to draw present, urn was were admissible inference from incident exception the Business Records drinking had It witness been time. hearsay rule. 1732. See U.S.C. § attorney proper government was for the Brewster, United States v. explanation to ask his of the events. he 231 F.2d 213. Branum testified There statements regularly kept trans- informal notes of prosecutor im that do seem witnesses situations. actions on note in such cards proper. they prejudice the Yet did not these over to an- He turned memoranda defendants’ trial. company safe- other officer charge (1) witness, One who Making keeping. de- memoranda interroga- company's books, testified on agree- complicated tails of oral business tion as follows: defense counsel rec- be business ment would within the exception. gentlemen record would Such a ords These told me wanted regular necessary operations for the and records of Dixie to see the books litigation in company. There Air, Inc., purpose of determin- for the view, self-serv- is not ing the document so or Richmond Flowers whether Mr. Hoffman, 1943, ing. money anyone any See Palmer else had received 109, 111-115, L.Ed. ; registering stock Dixie Air some rather And a factual reported it is 648-651. in- someone had some conclusory memo- record: than a purpose and that come some- American First what randa contain hasn’t, found no rec- one else and we received; gave memo- it and what Dixie Air made ords where nothing explicit extor- say about randa payment Richmond Flowers Mr. anyone tion. normal attor- above the else ney who were fees fees and accountant IMPROPER STATEMENTS VIII. attorneys paid and account- local IN THE TRIAL ants. question objected italicized appellants raise The defense ground testimony num- portion of a whether the cumulative effect defendants, prejudice against prejudiced either referring individually cumulatively. pending prosecutions tax against con- some of the defendants. We Allegedly improper statements bring clude that statement would not the in the abstract. should not be viewed jury’s Addition- fact the this to mind. they impact question The is what had ally, from the record it is clear particular the the trial context of attorney statement Flowers’s elicited the quantity the terms of their relevance and questioning despite his the trial the evidence in case. untainted judge’s him from do- effort to dissuade convictions, reversing several decisions ing any so to avoid mention order said the fac this Court has that one prosecution. tax defense the The other and the tors the closeness of the case attorneys ques- objection the made no resulting greater impact im the discussion, prior the the tion at out proper have. Ber statements would See hearing jury, line of about this the ger States, 1935, v. United questioning. 1314; Washing 79 L.Ed. attorney (2) government The asked States, ton v. United 5 Cir. if one witness on redirect examination States, 793; Handford coming federal he remembered And 5 Cir. where F.2d 295. “during Pepper in- courthouse the Ed despite upheld convictions have been im official, vestigation.” Pepper, public statements, proper pointed out we along Hyde the was indicted before impact impropriety the small the grand jury returned indictment the particular the the context of trial. See attorney government did case. this States, Gurleski v. United pur- injecting not this name seem to be Handford v. United attempting ; posefully apparently he was F.2d 890. Cir. first had told when the witness show This trial lasted six weeks about the de- payoffs, an him about issue approximately resulted in a record of cross-exam- much of on fense made pages. prosecution introduced judge that he trial stated ination. The concerning evidence a number of trans- thought jury “that drew no inference actions; the case not close on might that some some other case there sufficiency of the evidence. The defense may may these defendants attorneys capable, experienced were at- in.” have been involved torneys objected every who conceiv- They spirited able error. conducted a (3) prosecutor, after cross exam- respect grand ining using defense. With to the statements his a defense witness they recollection, to, little, any, refer there testimony “seems to refresh his testimony saying likelihood that could have been his “We offered returning evidence, misled into a ver- [them] whatever offer upon passion prejudice.” dict based admission and refused worth.” The court the Handford a mistrial on 260 F.2d at the defense moved object forcing ground them testimony in front the admission of IX. PREJUDICIAL NEWSPAPER harmful it seem that made PUBLICITY testimony. there But material was prosecutor’s state- implication in the is no expect, prosecution As one would any- testimony contains ment pub- of the defendants received extensive already re- thing he had other than what licity during both before and the trial. memory about. freshed witness’ The defense moved at the outset objections sequester jury. court The trial several other There were judge do not part denied motion. He direct beginning statements If the at of the trial not merit discussion. to read amount stories listen to improper, did not news broad- verdict, guilty repeated the defense After trial. He about casts ground day trial each moved for new end of at the admonition sought pres- prejudicial publicity left the every time other almost jurors hearing on the ence room. court question in order them re- motion during number of times A garding prejudicial from the influence brought the defense the trial publicity. The trial denied newspaper headlines court’s attention summarily. appeal motion the de- On prejudicial, to be and stories said fendants assert error denial There some for a mistrial. asked mistrial, sequestration, the motions for occasions of these discussion on several hearing jury prejudice. on regard interrogating jurors the about is defendants’ contention ing any prejudicial influence. On one pre-trial prejudicial pub not based on attorneys defense declined occasion the licity. They impartial do attack the not interrogation apparently on this offer of ity beginning jury at the of the theory harmful the it would more trial. Instead the attack is directed at helpful. point At it seems than another during jury influence on the the trial judge from the record that the trial alleged judge errors of the trial characterized the idea that as facetious failing steps to take further to insure any interrogating jury the about jurors the were not affected the prejudicial influence should come publicity. point him. At one did ask court any as a whole whether of them prejudicial-publicity Most of the cases had And the read the news stories. precautions deal with the that a trial reporters court excluded judge from several should take to determine whether hearing.38 jury’s sessions outside the exposed has been to what dear- publicity First, Since we decide was action. this Circuit has determined prejudicial court, jurors not we find no need to deter- it is for the not adequacy judge’s themselves, mine the steps of the trial to determine whether their im- jurors partiality destroyed by any pre- to ensure that has been any exposed judicial publicity they exposed news media discussion of have been judge charge Therefore, pub- the case. The to. when there has been beginning licity possibly prejudice at the trial look not to that would jurors, at news stories or listen to broadcasts defendant’s case if it reached the concerning trial, repeated jurors and he this the court should first ask the what during they admonition often the trial. He did information have received. Then it language suggested prejudicial not use the about should ask effect and Project independent American it Bar Association should make an determina- Justice, juror’s impartiality Minimum tion whether the Standards Criminal Relating destroyed. id.; to Fair Trial and Standards See v. Silverthorne Unit- 196_ States, 3.5(e) (Tent, draft). Free Press ed § infra. preferable Further, problem it the re- This is because makes there is jurors jurors. interrogating striction method of understandable to point they preju- troublesome, judge More at one whether or heard read any publicity. dicial case the court described as facetious the idea that interrogating exposure anyone jurors asked the if had about as whole done this. circuits have held that should come from him. Other news stories interrogation required only practice, preferable But individual is this is the when prejudicial effect, requested by attorneys, after it is to determine to avoid defense juror prejudicing determined that a prejudicial has read or heard further defendant’s case. Margóles 3.5(f) information. Fair Free Press See Trial and § Commentary. Additionally, Cir. 407 F.2d the trial judge evidence, The ABA recommends that even asked the at the end of exposure any questioning anyone about received what as a whole juror publicity prejudicial prevent take publicity has had should that would individually. place deciding impartially Fair Trial and Free the case them from 3.5(f). Press § introduced the basis of the evidence problems court. There are two ap- they any put highly the defendants on ly prejudicial information will is stand, likely but is considered pearing in media or whether news testify jury’s own prejudice the at least Flowers will his exposure such would hardly impartially in- ability defense.” This can be called to determine given flammatory reporting. story One The cases have of the case. merits “Mystery Up drawing Pops the line be- headlined Document attention to less Trial; May prejudicial publicity But Not Be Admitted.” tween what story gave hint as to the nature Those that have consid- what not. jurors support conclusion of the document. The had seen this issue our ered government preju- at- publicity the document when the here was not during Manning, torney held it cross-examination dicial. United States v. See jurors of a defense witness. Thus the Cir. Gordon nothing ar- have learned from the 438 F.2d 858. ticle had not known before re- types This case does not involve the tiring from the court room while clearly prejudicial publicity found attorneys considered the ad- almost all of the cases which new missibility of the document. trials are ordered. In most of those containing cases there were news stories gist appellants’ argument of the information the defendant about following appears language in the would not be before admissible one of the briefs: put or that not in fact was be These headlines and the lowing articles fol- Typical fore the in court. cases government them an evaluation testimony constituted volved a witness’ given the case with the conclusion jury’s presence, out of the Mar prosecutor’s position strong goles was v. United Cir. position the defense 727; was weak. It F.2d assertion of defendant’s typical in- of most of the articles privilege his fifth amendment of the out they pre- troduced as jury’s presence, exhibits that Paler States v. mo, sented a narrative condensation of the 468; 7 Cir. the de damaging aspects testimony most past fendant’s misdeeds unrelated to the by ignoring prosecution witnesses, charge being tried, on which he was weakening admissions made on cross- States, 1959, Marshall v. United omitting proof examination and often 1250; U.S. 3 L.Ed.2d outright They contradictions. con- McKinney, United States v. interpretation stituted one-sided 1019, rehearing granted [a] * * * reached, different result 434 F.2d 831. type prejudicial story Another news appellants attempt thus liken is one that contains editorial comment their situation to that in Silverthorne guilt, the writer about the defendant’s States, supra, v. United where the Court generally either based on infor believed Appeals for the Ninth Circuit re- mation, Sheppard Maxwell, 1966, 384 versed a conviction. But the stories 16 L.Ed.2d clearly one, there were evaluative. In or on an evaluation presented of evidence opinion noted, read, headline “[t]he court, Silverthorne v. United 9 ‘DON’S AID TOP TAKES STAND- Cir. 400 F.2d 627. DELIVER’, FAILS TO and character- ized in followed, the article which In this case there were no such news appellant’s having defense as failed.” stories. report- several articles Also, by widely an article read col- speculated ers as to whether the de- emphatically umnist condemned de- testify. fendants would typical It guilty. Additionally, fendant as these, however, that entire comment newspapers ran several headline stories following language this issue was the implying buried in that the story: defendants had been middle of “De- lawyers fense misconduct, have not indicated whether involved sexual inflamma- tory having nothing material to do with thorne other cases where convic- the trial. tions have been reversed. These stories destroy could not in the circumstances In this case the most that can be said objectivity the calmness and with which about the news sum- stories jurors carrying must act out their high days’ points marized the of the role. constitutional Tying Busy events. Thus “Prosecution Loose Ends” does not necessarily involve ^{[*] [*] [*]} ends are evaluation the loose judgments below are therefore air-tight those of an case. Nor does the affirmed. headline Defense work cut has “Flowers highlight- out” more reflect than a RIVES, Judge (dissenting): Circuit ing taking controversy place respectfully I court room. That dissent. these headlines reflect typical reporting rather than editorializ- beginning majority Near the ing by implication can be seen from the opinion, my colleagues “sketch some of given similar treatment to the defense showing the facts how the instance, reporter case. For the same operated.” The “facts” so are sketched responsible for the two stories under damning. They show defendants to previously headlines, mentioned wrote guilty of extortion and leave little under the head “Flowers Placed in hot doubt as to their interference with com- seat, calmly denies accusations” fol- assume, however, my merce. I col- lowing paragraphs: lead leagues do not mean to state “facts” as having day ap- Richmond found Flowers is the District his Court proved denying Court, every charge, He’s but mean no more court. every allegation, every say than to accusation— there was sufficient evi- categorically, ju- point by point. almost dence from which reasonable-minded beyond rors could have believed a rea- gen- attorney The former Alabama sonable doubt true such are the eral commissioner, and state securities “facts.” That is made clear in later voice, flinching sonorous of never in part majority opinion of the also phalanx staccato answers to a of de- dealing sufficiency with the of the evi- questions, fense settled into the wit- dence, particularly but as to the element Monday, ness chair at and he’s 11:02 of interference with commerce. Their today. still there explains footnote 29 that “after a verdict say We reporting cannot guilty that such would the evidence must considered be prejudiced jury. light a gov- As Mr. Justice most favorable to the Holmes wrote in Holt establishing v. United ernment” true the 245, 249, 5,2, 54 L.Ed. “facts.” prefatory These in remarks are made * * * judge’s hope there is may prejudge force in the the that we not the juries play guilt view that if agree are fit to the of the I defendants. that the part assigned law, they by to them our evidence was sufficient from the which will be able to do properly what a has could have found the de- every to do guilty. time However, that he tries a case it fendants was also them, on the province facts without and we within the of the to find say wrong cannot guilty. that he was in them not thinking that the men before him were crowning glories sys- One of the of our competent for their task. government tem of in is that all crim- Although jurors thought prosecutions enjoys cannot im- be inal the the accused pervious prejudicial right by jury. to outside impartial influ- to trial an Our ence, here right we do not have a case of the forefathers considered that of such pressure kind guaranteed twice, importance news media for a con- that it was viction such as that in found first in Silver- Article Section Clause

§51 in then the Constitution and that, Sixth “We have said with few ex- say trying I am to What Amendment. ceptions, the rules which obtain eloquently expressed most authority has been civil to cases relation by Supreme Frank- Court Justice jury upon instruct court to arising furter : upon all is- matters of law tried, applicable sues are be insist- “In view the Government’s im- trial of most criminal cases. The evidence there is abundant ence portant exceptions is of those is that it im- indicate that Bollenbach court, competent not for the in a crim- enterprise plicated criminal case, jury peremp- inal to instruct may beginning, it be not torily guilty of the to find the accused question is amiss to remind that charged, offense criminal of- guilt spelt may out of be not whether charged. fense than that less guilt record, has been but whether grounds upon exception which according pro- by found by Judge rests were stated Mc- well appropriate and standards cedure Crary, concurring, Miller Mr. Justice courts. trials in the federal criminal McCrary, Taylor, States “Accordingly, treat we cannot ‘In It was there said: in the circum- manifest misdirection may case, civil the court aside set of those of this case as one stances verdict, plain- it be for whether not af- errors’ ‘do ‘technical which upon ground defendant, tiff or rights par- fect the substantial contrary given it is law disregard- must be therefore ties’ case, court; in a criminal but 1181, 28 U.S.C. ed. 40 Stat. § acquittal, if the is verdict one solely if All law technical viewed power court set It has no it aside. punishing crime from concern for form for court be useless heeding the mode without case, involving only * * to submit a civil * pre- accomplished. From law, questions consideration suming ‘prej- be too all errors to often verdict, jury, of a where when judicial pendulum udicial,’ need found, if not accordance with swing presuming all errors law, court’s view of would be set appellate ‘harmless’ accomplished aside. result is The same that one is left without doubt court given instruction advance is, process claims who its corrective find a in the verdict accordance with all, guilty. place of the In view after opinion court’s of so the law. But not by jury importance has trial of acquit- in criminal cases. A verdict of Rights, Bill of it is not to be in our aside; therefore, tal cannot be set Congress supposed that intended if the direct of court can a verdict appellate the of substitute belief guilty, indirectly it can do that which accused, guilt judges in the how- of ” directly.’ power it has no to do engendered by justifiably ever record, guilt for of dead ascertainment Judge Tamm, speaking D.C. for judicial by jury appropriate under heavily case, in Circuit a recent relied guidance, however cumbersome in on earlier of Circuit decisions this process may be.” stating is the rule: what I submit true States, 1946, Bollenbach v. United 326 of “The that a directed verdict rule 402, 607, 614, 615, 406, 90 66 S.Ct. guilty matter no invalid is enforced is L.Ed. 350. case in the how conclusive evidence principle upon I submit this may be.1 While appeal decision of this should explained by guilt ‘Despite strong turn was elder Justice evidence of "1 hold this erroneous we cannot Harlan, Court, organ as the charge No how matter was harmless. States, 1895, Sparf Hansen United v. may evidence, a court conclusive 51, 273, 105, 106, 294, 156 U.S. 15 guilt. of While direct a verdict not 39 L.Ed. 343: jury charge not direct this did 852 guilty. power direct a verdict guilty, it take did defendant find question jury [his] deciding a material from instruction An States, 286 United guilt.’ v. Edwards adversely a matter of law fact issue as (5th 1960). 681, Cir. 682 F.2d regarded partial aas to the accused guilty a verdict direct not did case guilty prohibited verdict of instructed effect form, substantive given. just stated. In United the rule rule instruction supra Cir., Raub, 177 States v. [7th guilt in against directed verdicts the con- F.2d the Court reversed 312] in which perforce situations cludes plain error rule under viction di short judge’s fall instructions jury where the was instructed recting guilty but which verdict material element of the offense do of so the effect nevertheless as a matter law. established eliminating con relevant ing other “ appellant entitled ‘The fact finds one if the siderations question of there have the whether Supreme Court true. As to be attempt was an enter the bank States, v. United said Bollenbach robbing purpose it submitted 406, 402, 607, 614, 90 66 S.Ct. appropriate instruc- (1946), question is ‘the L.Ed. 350 things, covering, among tions other guilt may spelt of a out whether type the elements of this of offense.’ guilt been record, has whether but 1967, States, Mims v. United 5th Cir. according pro found F.2d 375 135. appropriate and standards cedure Court, case, “The fol- the Mims courts.’ the federal trials in criminal principle lowed the announced States, United v. also See Schwachter earlier Edwards it said: ease where was 1956); (6th 640, Cir. 644 F.2d 237 “ Gollin, 166 F.2d v. States strong ‘Despite evidence (3d Cir.), denied 333 U.S. cert. guilt, we cannot hold that errone- L.Ed. charge ous was harmless. No matter (1948); Carothers evidence, how conclusive the court 1947).” (5th Cir. F.2d may guilt. not direct a verdict charge Hayward, 136 While not direct United States v. guilty, to find the U.S.App.D.C. 300, defendant question did take from the present majority decision guilt.’ Evans’ Edwards v. United is, our submit, conflict with I case 5th Cir. F.2d Jones, (Judges Gewin decision Skinner, 5 Clark) in United States And, opinion, in another has the Court matter 164. The Cir. said: quote importance that I seems such “ objections ‘In the face of stated opin- Judge length able Jones’ precision clarity complaining ion: charge partial as a direction of towas of instruction “The this effect guilty of verdict and a failure to guilty jury to find the Skinner direct jury issue, submit to the a crucial the lacking in appeared he was it unless obliged Court was to take corrective the offense capacity commit to mental steps jury clearly so that the un would charged. A directed he was with three, two, derstand that it had not guilt permitted, not is

verdict of for issues decision. to do The failure though in- defense of even this true is this was a substantial and harmful sanity is raised. States, error.’ Roe v. United 5th Cir. guide is charted decision to our 1961, “The 435, F.2d 287 cert. denied 368 by leading by decided 824, the cases one of 43, 82 S.Ct. 7 L.Ed.2d 29. is it said: this Court where case, As in the case, Roe inso “ given jury wide latitude district ‘A has a court should trial court during commenting verdict, guil- guilty, the evidence three choices of not ty jury, guilty by insanity. he has or not but his instructions to reason of 853 1895, States, 51, 105-106, v. 156 U.S. 15 States United decision recent 273, 343; Compton 39 L.Ed. 275, is 1970, F.2d Martin, 434 5th Cir. Cir., States, 8 377 decisions. the above conflict not in 408, 411; States, Edwards v. United 681, 683; of in the case principles stated Cir. “The Taylor, C.C.D.Kan., 1882, States swpra,, require v. United Mims F. 474. 52(b) of Rule plain rule error not well established its basis is Pro- Rules of Criminal of the Federal normally a matter of discussion. There objection although cedure, apply is, however, deep undercurrent of rea- Only given. as the instructions made right simply, sons. Put to be tried jury, tendered choices were two by jury finally peers of one’s exacted not guilty a verdict of of a verdict king meaningless from if be would jury insanity. guilty by reason of king’s judges turn.39 could call the might reject the in- it not told that Indeed, jury’s “39 . under our law a ver sanity neverthe- but defense Skinner dict, representing the common sense and of- elements of find that less community, highly wisdom is so beyond had not been established fense regarded may government itself so, return doubt and a reasonable by jury insist on trial rather than trial by judge. Singer guilty. v. United verdict of not saying quoted “Lord Coke L.Ed.2d 630. Charles is the life of the law. reason Case, (C.P. Eng.Rep. Bushel’s Twist, his Dickens, one of Oliver 1670). In the exercise of its functions say ass. It is an characters law not must be free day may those in this be that there are verdict, direct it control its but must for think it and time would absurd who judicial pressure, be free from con- both appellate hold a trial court court to temporaneous subsequent. Com- charge failing jury that error (5 Anthes, 1857, monwealth v. 71 Mass. guilty might find not it a defendant Gray) 185, 209-210; Larkin, Rex v. having deny an offense which he not Devlin, [1943] K.B. P. Trial and rea- committed. Yet such is the law 14, 56, Jury (3d impr. 75-91 with adden- son is the life the law.” dum, 1966); Plucknett, A T. Concise 437 F.2d at History (5th of the Common Law 137-38 clearly the rule are reasons 1956); Howe, Judges ed. Juries Judge Aldrich Chief stated Law, Criminal 52 Harv.L.Rev. important case recent in an Circuit First (1939). Both have been said result reversing court because the district special questions. from the submission of special questions submitted “ ‘It is one the most essential general verdict in addition right features of trial Again, guilty. rea- guilty those or not compelled that no should be importance that are of such extreme sons general find but a in crimi- verdict length: may quoting at pardoned in I cases, and nal removal judge, if the evidence “In trials the civil safeguard design its violate one-sided, may sufficiently direct destroy spirit.’ its against even defendant find though ease plaintiff Spe- entered the Clementson, Special Verdicts G. bearing proof. F.R.Civ.P. Juries, (1905). the burden Findings by cial may “ a court a criminal ease special inter- submission ‘[T]he of a verdict to return order ac- are to rogatories, answers to which overwhelming guilty, * no matter how * *, general company verdict guilt.38 principle is so of This evidence a [began to catechize effort] as an * * Carpenters as to its reasons of “38. Brotherhood America v. United of Joiners Special History Morgan, of Ver- Brief A 408, States, 1947, 395, U.S. 67 S.Ct. 330 Interrogatories, Yale Special 32 dicts Sparf 775, 91 L.Ed. v.

854 Amendments, Proposed Walker, and the Procedure also (1923). See 575, 592 L.J. (1963). 617, F.R.D. 618-619 31 Verdicts, Jury 118 New Finality of jury’s by the less concerned “We are merges (1968). This 866, 867-68 L.J. subsequent criticism possible of fear the court reason into more basic a findings we respect special than to with special but, circumstanc because noted open, subtle, perhaps are with es, accept v. in United States did not answering special ques- direct effect 272, 1957, F.Supp. Ogull, S.D.N.Y., 149 jury’s may upon ultimate tions 276, discussion affirmed without way to no easier There is conclusion. Gernie, point, sub nom. United States force, reach, perhaps a verdict 664, denied, 1958, cert. Cir., 252 F.2d by step. step approach guilty it to than L.Ed.2d U.S. may wishing acquit, for- juror, be to A By progression of mally a catechized. “ questions jury special ‘To ask the to re- questions seems of which each infringe might power to its be said de- quire an answer unfavorable fetters; legal may to deliberate free from fendant, juror be led a reluctant general power large, on its at a ver- which, to arrive for a conviction vote by having support it may dict without result he have resisted. would by report or a of its delibera- majority reasons accomplished by be tions; power or to follow by and on its jury, initiated the course has been but through instructions by follow the judge, him and directed abridgement Moreover, court. questions. the frame modification of this institution would may the law “It be said since partly function, historic restrict its logical consistent, if the should be tempering that of of law com- rules proper questions substance were brought upon mon sense to bear an un rather than would be desirable specific facts of a case.’ agree, however, desirable result. We Hand, L. distinction made with the cogency so felt Mr. this is concurring J., Baltimore Skidmore Douglas Black Justice and Mr. Justice Cir., 1948, Ry., O. & they special disapprove inter- denied, cert. rogatories even in civil cases.40 speaking in favor 93 L.Ed. when “40. impair ‘Such devices are used to special cases. verdicts in civil wholly away power take of a “ verdict, subject T should like to general to render a verdict. One of ancient, fundamental reasons for hav- narrowly practical, to a re- as was ing general pre- verdicts was to fact, view which should make right by jury serve the of trial as an very elaborately pretend what we indispensable part government. a free upon it should be: a decision based Many famous constitutional most England prosecutions there law. In criminal controversies revolved litigants’ insistence, particularly around judgment may be, my there and in cases, in seditious libel are, inter- other considerations which right general to render a verdict attempt vene make such an unde- being compelled without return sirable.’ subsidiary findings sup- number of port general English its verdict. Some Uppermost of these considerations jurors jail go had to because principle jury, the conscience upon right gen- insisted their to render community, permitted must be repeated eral verdicts over com- tyrannical logic. judges Indeed, look at more than this is mands of not to do so. Rule 49 is but another means utilized upon began principle our which we by courts to weaken the constitutional discussion. If it otherwise there power juries judges and to vest why no more reason a verdict power according more to decide cases against should not be directed a defend- judgments.’ to their own ant in a criminal than in a civil case Statement of Mr. Black Justice and Mr. guarantees The constitutional one. Douglas Justice on the Rules of Civil

855 by jury require process importance and trial Because mat- due ter, tedium, quote I be the risk at criminal afforded defendant unfettered, length protection order from the record in to dem- the full indirectly. beginning directly v. Morris onstrate that from the to the or See States, Cir., 1946,156 Judge 525.” end of trial 9 F.2d the District effec- United tively deprived [Emphasis its role as added.] guilt the finder of the of the defendants 1969, Spock, 416 v. United States insofar essential concerns that ele- 165, 180, 181, 182. F.2d crime, ment of interference with recognized my Indeed Brother Clark commerce. Rags true rule States United In re- the course the Government’s 21, dale, 27, when Cir. ply opening counsel statements of said: he defendants, following for the occur- firmly committed “This Circuit is red : rule, appears what to be universal May please “MR. it TAYLOR: evi- no matter how conclusive the Court, gentlemen, my ladies name dence, may court not direct a verdict Macey Taylor, is Assistant Mr. guilt part. in whole or United Attorney]. Weaver United [the States (5th Skinner, States v. I prosecution him will assist Any 1971). Cir. instruction such reply, I the case. would like to plain would error amount very permission, the Court’s few though noticed, not as- would even be things distinguished counsel said signed. United Mims v. you they may been in- 1967).” (5th F.2d 135 Cir. advertently misleading. foregoing principles law With the quite “It is true that the effect on in- mind, let turn the record to find us terstate commerce is an element Judge whether the District instead offense, duty us but each of has a question decided of interfer- perform in this case. Counsel will ence with commerce. objections introduce evidence and make pro- you judges “is directed at Hobbs Act stated be will against tection of interstate commerce of the facts and will make the Court injury from extortion.” States certain determinations. And I sub- Green, 1956, 415, 420, you 350 U.S. mit to it the Court’s func- is yours find, L.Ed. Protec- tion and not that —first very gist tion of commerce is interstate existed commerce crime, language affected, imped- as the of the statute act involved any way ed, delayed or makes clear: or “Whoever interstate commerce. degree delays, obstructs, com- affects object “MR. REDDEN: to that in- We * * * * * * merce extortion law, please correct statement of * * * than shall fined not be more Court, might because that have to be $10,000 imprisoned than more disputed found from That fact. twenty years, or both.” U.S.C. § province every be the As Mr. Justice Black wrote for a unani- instance, not the Court. mous Court Stirone v. TAYLOR: “MR. We submit Court’s function to determine inter- “Here, 4 L.Ed.2d 252: as the trial court state commerce and on it. its effect charged jury, there are two essential “THE I COURT: At this time will let Act inter- elements of a crime: Hobbs it stand. commerce, ference with and extortion. except. REDDEN: “MR. We charged. Both to be Nei- elements have spite of what surplusage “MR. TAYLOR: be ther neither can might vitally you, you told surplusage.” counsel treated as precisely by predicted

concerned with all them facts as had been you case, yourself need not concern Government counsel: commerce, with interstate commerce (1) “Now, Ladies and Gentlemen of affected, impeded, or obstructed. jury, duty it is the of the Court and not the object determine to that whether We REDDEN: “MR. government’s evidence, believed, it, if please the es- exclude and move tablishes that interstate commerce with simply incorrect That Court. affected conduct the defend- that to the fact reference bring ant so as to activities of no function. scope defendants within the Honor, that’s Your TAYLOR: “MR. juris- Hobbs Act and sustain federal court’s function. diction. pos- you “I may you It is instruct that It be. if find “THE COURT: evidence, beyond from the a reasona- sible. doubt, ble conspiracy that a existed Well, will the Court “MR. TAYLOR: charged as in Count One or in Count ease. you of this on the law instruct or Two in both Counts One and Two you it that he instruct I believe will indictment, and that one of the determine function to the Court’s charged overt acts in each count was commerce interstate or not whether committed, found, that the Court has or and affected has been established as a law, require- matter of that hasn’t, impeded If it or obstructed. ments of the Hobbs Act under Section you.” away from the case he will take 1951 of Title 18 of the United States Code have been met as to interstate Thus, evi- heard before the being p. commerce (App. affected.” dence, the United it informed 298) Attorney, concurrence with States “you Judge, not need that the District (2) “Now, Three, I to Count as commerce, yourself inter- concern with charge you you that if find affected, impeded, or ob- state commerce doubt, evidence, beyond a reasonable he structed,” “I believe and further one or more of the named you Court’s that it is the will instruct count, guilty charged, be in- not determine whether or function to found, matter the Court has as a established commerce has been terstate law, requirements impeded or obstructed.” affected or Act, interstate commerce Hobbs impression statements which these affected, has been has been met tentatively ap- counsel, of Government government’s evidence, if believ- inevitably proved by Judge, 299) (App. p. ed.” jurors re- was never the minds of Four, charge (3) I “As to Count throughout trial. six weeks moved you you if find one or more jurors to ac- it not for the Was natural the defendants named this count cept of the United States the invitation guilty presented be from the “you evidence Attorney concern need not you, beyond doubt, commerce, reasonable yourself com- interstate with law, found, a matter of affected, Court has merce, impeded, or ? obstructed” connection prediction evidence the United Further Four, believed, Judge] the re- Count meets Attorney [the “he States quirements you of Title Section is the Court’s instruct will Code, as the insofar States to determine whether function having af- conduct the defendants established commerce has been interstate commerce, there- fected interstate impeded or obstructed” and affected by sustaining jurisdiction the Court’s prophecy. a true turned out scope Act.” charge the Hobbs within the separate parts four of his 301) (App. p. Judge jurors, instructed the District (4) “Now, commerce, extortion and ference with interstate commerce with statute, as defined in are urge essential the statement that “The defendants govern- proof appeal elements of jurisdictional element proved ment must added, meet (emphasis before offense can below” proven 18, opinion p. be under 835), Title Section 1951. see and in its discussion jurisdictional states that “this ele- is “Whether or not commerce has been great ment for which court has a affected is a matter law for the responsibility” (opinion p. 839). With evidence, Court to determine from the deference, I submit that at the eviden- if believed. tiary stage trial, proof aof of that issue goes jurisdiction to proof only by “The court’s of extortion the evi- beyond proof same sense dence of the other reasonable doubt issue, say, you, jury, matter extortion. That is to if there to deter- were no (App. 310-311) p. support mine.” evidence whatever ei- ther issue the conviction the defend- Lawyers, jurors, know that as well as ants process. would be a violation of due questions of do arise in which fact cases Thompson Louisville, 1960, v. 362 U.S. are the determination the trial 199, 80 624, S.Ct. 4 L.Ed.2d 654. At the judge example, jury. For and not of the evidentiary stage of the trial there statutes decisions other states nothing unique about is- commerce proved. are facts Eastern Build- “jurisdictional sue In element.” ing Williamson, 1903, and Loan Assn. v. support of the statement made in the 122, 126, 127, 527, 189 U.S. 47 preceding sentence, may be best to ex- Nonetheless, L.Ed. 735. it is the func- plain length my at the basis of dissent- tion of the trial of the instead ing view. foreign to determine of the the state the United proof presented district courts law from the on that original jurisdiction Finney of all 1903, States have Guy, issue. against 558, 342, 343, 839; offenses the laws 335, United 23 47 L.Ed. S.Ct. Extortion, Roche, 1952, 18 3231. Liechti v. U.S.C. § 5 198 F.2d States. Cir. obtaining money 177; the sense of or some 174, Daniel Em- Lumber Co. thing by a offi- S.A., 1954, other of value misuse of presas Hondurenas, well-recog- power position, is a 465, cial Accord, 469, Rule 470. nized Ex- common-law crime. 26.1, 28, C.J.S. Fed.R.Crim.P., added Feb. 1966. 1, p. Ex- 31 Am.Jur.2d tortion similarly, § Somewhat decision where of a tortion, Blackmail, etc., p. 902. Of question § of domestic trial law court of- no common depends surrounding course are law inquiry “there on an into against fenses States circumstances, facts and the court must are grant therefore federal crimes summary judgment refuse until by Congress.” explicitly prescribed those facts have circumstances been ed., Practice, 2d 1A Moore’s Federal sufficiently developed to enable the court Congress [5], p. 0.323 has the reasonably 3734. to be it is mak- certain If power regulate ing under the Constitution ques- a correct of the determination among states, commerce the several with Chamberlin, tion of law. Palmer v. foreign nations, and within the District Cir. any territory posses- of Columbia or Thus, present case, the District Acting sion of under the United States. Judge and the seem to Government power, Congress this broad commerce laboring been delusion that the Act, enacted the Hobbs 18 U.S.C. § issue of interference with commerce Thus, is no this case there doubt that jurisdiction court, went to the juris- the District vested with Court was hence was for the court decide. The matter, is, subject diction majority opinion begins try charged its discussion of persons with violation sufficiency Hobbs Act. inter- evidence guilt beyond In try doubt. punish for a reasonable Jurisdiction charged short, “jurisdictional” nexus particular was vested in crimes permit commerce does not return of the element Court the District Judge deprive jury of its District indictment. Albrecht v. regarding finding inter- L.Ed. role the facts 505; 22 Law 143. The state commerce. Criminal § C.J.S. submitted themselves objecting to the instructions jurisdiction Thus, the Court. quoted length, defend- have been the District time the trial commenced fully complied ants Fed.R. Rule jurisdiction Court had vested with been Crim.P. persons of the offense and of the both Court, on “MR. Please the REDDEN: of the defendants. defendant, separately behalf of each that, “Generally, It is law hornbook por- severally, except to that and we jurisdiction depends the of a court on the charge oral tion Your Honor’s existing it state of the time is facts you if that wherein Your Honor stated invoked, juris- and once a court obtains evidence, find from the stated person diction the the accused you substance, find from the evi- if matter, subject it of the retains the same beyond that a dence reasonable doubt n disposition until final or determination charged conspiracy in Count as existed of the in accord law.” case with the the indict- and in Count Two of One 165, p. Criminal Law C.J.S. § ment, in fur- an that overt act conspir- True, jurisdiction object having therance the of that when a court acy of those subject as each matter of the accused committed found, counts, a mat- denies to has as the accused a basic constitu- the Court right law, law, process tional such as due ter of that interstate commerce except jurisdiction its ceases its acts are has been We further affected. substantially along But line to void. there is no claim here that the same jurisdic- refer- with Court has thus the same statement made undermined Four. tion ence to Three and vested it at commencement Count Count course, rephrased it of the trial. Of Your Honor counts because are substantive those Why sufficiency then is the of the evi- charges, say- opposed conspiracy as dence to the on effect interstate com- you substance, if ing, think, I placed category merce different beyond a reasonable are convinced “jurisdictional element” which falls defend- doubt that one or more of the province within de- charged guilty ants of extortion as Why cide? not that element count, requirements of the in said jury precisely the same as the decide by the met evi- Hobbs Act have been element of extortion vel non? Both ele- believed; ground, if dence on this go ments of the federal substance charged jury, and Court has extortion, jury crime. If the finds no of the state- I time in one think one crime, federal, then no has been state or count, ments with reference to some proved. jury If the finds no interference predicated it the words that was not on commerce, with then no federal crime if believed. proved. has been “THE Yes. COURT: True, juris- the Federal Government’s import I diction of this crime rests on interfer- think the “MR. REDDEN: ence with commerce. But such interfer- what Honor said elim- Your has charged jury adequately had ence been from the mind of the inates they jurisdiction they prerogative, do not if indictment, and would have lost if the facts of relative determined not the evidence believe any affect such the accused. existence of interference commerce favor commerce, commerce, simply on That would a failure affect amount reject I feel that convince the defendants’ that evidence. they that on instruction wouldn’t each one of the as to instructions right. underlined, think had that I interstate commerce merce or objection dence mind of the 856-857, United States v. Honor has rogative, “if believed.” When confronted with the ply structions, fense makes known even if the defendants had failed to com- which which he desires the court was to be United elements of meration Rule the defendants Crim.P., cient trict had not defense complied facts].” objection to the action of the court and facts.” or order of the court is Each of the four I lieved, “THE “MR. REDDEN: (App. reject recognized with Rule would overrule grounds majority opinion instruction had that that a 51, attorneys Court’s relative Court in itself might majority proposed determine 324, 325) (Opinion, made on all attorneys with Rule if Fed.R.Crim.P.: any COURT: uses [of (Opinion, p. heretofore they party, guilt therefor.” said plain error or 30, States affect on commerce evidence, right,” “the under Rule error. 5 Cir. clear to the to four and they contained such might concedes Ragsdale, supra. the error would have to do not is so fundamental charges eliminates the court your p. 842.) import 30, interstate object to I identical wouldn’t separated deciding the time the District they underlined, existence of com- comments: As not cure All quoted, propose existence objection Indeed the error bore Skinner, made believe * * 842.) Having rule. that, “The de- “[I]t duty rested on 52(b), of what Your submitted expressed right, Nonetheless down take or his the action think expression one of the from the the commerce the court * ante Mims the Dis- charges to it. sought, supra; Fed.R. Judge ruling “none suffi- * * sir.” enu- pre- 135, evi- pp. be- in- it. v. usual vocal jury consisted of whether with them which the majority ferred to court as 842.) the red lieved’ underscores believed.” nature of its function.” efforts reproduce, placed jurors evidence with lief. With merce.” ment is: “In who would sent. The objections in the lieved,” they red, or “if struction Court’s structed that [the tions and your own lives. you prejudice, courtroom. from a fair should be considered and viewed dence it is mine the facts course made while the “Now, ^[*] “You are if as District emphasis, boilerplate believed jury.” charge describing The “earlier your duty believed.” explanations underlining Judge presented they fact-finder, law-giver is in error when it (App. ^[*] have majority of defendants’ the evidence Even have deference, experience could light fear or light they ‘believed’ the the regard Judge] beyond Not once was the judges had consideration “if which the record cannot p. ^[*] did instructions, to if the and on the words jurors of earlier instructions in this case without believed 36) no means underlined entertain and gives (App. p. not take the court’s careful instructions” or had heard some your to interstate function favor, ^[*] equate of the I submit no more you explained presented reasonable doubt jurors the role understand the phrase ‘if overruling were the ones attorney to determine own observa- here prosecution’s (Opinion, p. -X- role of such that state- such as: such a 328) facts, affairs of says, in red “if had seen than the knowing that the evi- jury “if charge to the source deter- so an ^[*] solely jury” com- “He you and the ab- be- be- be- in- re- in- by responded, underlined, believed, may during “I if “If you the trial think (App. p. dny way all four and bore down on it” the Court has intimated 325), again, “Now, you point opinion facts, you I out to toas are not worthy on the which each timony every ness’s mind, to indicate facts. bound You should is the “You, weight and demeanor matter intelligence, motive credibility sole and stand. given, of belief. carefully jurors, witness has their whether the circumstances under opinion. Consider also exclusive evidence which tends testimony are the Consider each wit- and manner while scrutinize the the witness witnesses testified, and sole any rela- deserves. state of judges alone tes- matter of meets 310) having nection with Count far as Court if believed.” affected is a matter of law for * * * Section “Whether or not commerce ^{[******] [*]} « * * the conduct affected interstate vS- determine law, * requirements the Court has United States that the evidence (App. of the defendants Four, of Title found, Code, 299, 301, commerce evidence, has believed, ^[*] inso- as been con- may tion bear to either each witness Act cases None the Hobbs case; side of the manner in which go anything majority like so relies might each affected witness Judge de- toward far as the District verdict; which, if at the extent finding priving role in of its all, supported each is either witness regarding commerce. facts interstate contradicted other evidence.” genesis is the of that line of cases 295) (App. holding in Nick 673: general Potent those instructions may they been, special make ref- (assignment no “The second item subject the by erence to of interstate com- (i)) the is at a statement directed prevail particular The merce. should the ‘if wit- court that the evidence general. addition, outlining stoppage the the over nesses the effect of industry instructions left the Court’s uncorrected in picture St. the motion structions marks, quoted supra, p. 856-857. commerce tions had no that ney District observations of lieved. merce by was affected a matter of establishes defendant Further, “* ^[******] “ the District Court’s in his government’s * not has Hobbs * * * Judge’s government’s question, by as: the opening * been application to the * * law, that it is the jurors were led to believe Act, the by affected, rulings that to determine whether *. United interstate evidence, court that statement duty of the Court such evidence, general conduct of the interstate has on those has been requirements States repeated if commerce interstate found, as believed, and the instruc- Attor- if be- com- met re- in- Circuit phasis added.] —that with ence. is or what certain facts covered are Following the court direct no gumentative is not for dence comment Louis is to be believed criticism effect and substantial by you, proper shown then its statement that interstate in Hulahan upon This is what is a and substantial the upon is that basis if that is must believe question interstate result, they in that charge the there is such for this criticism. commerce. holding, interference interstate believe evidence is to determine of law. the court commerce.’ it states by the evidence proper.” course, is United and is that interference certain commerce improper There interfer- It is for is with there believed that Eighth stated direct is ar- [Em- what evi- It if is is approved system 214 F.2d the fol- distribution which its origin lowing testimony instructions: There was Texas. “ particular piece law, the effect charge you, T as a matter of of line you testimony was connected to a which meter if believe part was of the main line from the witnesses with reference Government supply. judge source of jurisdictional The trial men federal element of to the tioned these statements in this interstate commerce involved you beyond case, by and said say, believed is to the Government’s ‘if [they] bring- reasonable testimony satisfy doubt reference to the necessary jurisdictional ing materials, commodities, federal ele of various ment of equipment, interstate under from out state to commerce job question law under which this indictment this federal sites district, judicial you drawn.’ In this instruction the then are instruct- following Hulahan v. United ed that activities as shown Stat defendant’s es, Cir., 1954, 441, 445, testimony, you 214 F.2d the Government’s if delay, certiorari same, did denied believe the obstruct though closely as L.Ed. as interstate commerce as affect report language he had had the desk be under is used the statutes charged jury. brought. charges him he when are fore these right. he say, you We have doubt That is to find facts position Hulahan taken ease the Government testified strengthened by the decision witnesses, has Court determined Second Circuit v. Var States a matter of there has law been lack, 1955, 225 F.2d 670.” [Em substantial affect on interstate com- phasis added.] merce shown here the United States your question and that is not for de- holding of the Seventh Circuit you However, before can termination. Green, 1957, States v. guilty find the defendant Eighth 160, 161, following Cir- you all of the counts indictment cuit’s decision in Nick and Hulahan: beyond find must a reasonable doubt the tri- “At close of the evidence money the defendant has extorted gave following instruction al court property conspired do, or so to as or charge] jury: is a viola- to the ‘[The in those terms are defined the statute force, by in- or threatened tion force given by you and other instructions persons of or con- ” timidation workers [Emphasis the Court.’ added.] is in of what cerned the construction Relying Hulahan, the Second Cir alleged interstate com- to have an been approved “virtually in cuit identical” charge highway. That the merce Varlack, struction. States v. you must which and that is the matter 665, 670, 671, F.2d 225 being far as this decide here. Now so Lowe, In United States tramway an commerce interstate 919, 922, 923, 234 F.2d it was said: may highway desire or whatever we testimony problem by ap- it, you “The next believe the raised the call of if pellant presents is un- question witnesses, it of law. He the Government original complains questionably interstate commerce of the instructions ’* * * clearly by highway. supplemental the court It was and certain given to determine instructions the court these in- the function of because was af- jury structions did not to the whether interstate commerce leave the ju- alleged had determination of whether the court whether fected and As stated the Act. conduct the defendant affected com- risdiction supra, any merce or the movement article in Hulahan v. United it testimony page think in commerce. in at 446: ‘We There was jury, concerning court, part not the case was for the and which gas piece pipe played the Government’s line in a determine whether any bring un- believed, element of a crime convicted evidence, would if jury returns its verdict and until the less defendant within activities guilt. jurisdic- federal sustain and statute v. United also Nick tion.’ attempt See course, I revive Of make A.L.R. Cir., jury in theory that the democratic [Emphasis added.] 791” not should determine criminal cases That the law as well. the facts but line, in this of the cases Thus each authoritatively as settled question was attempted Court District which Sparf in Hansen far as 1895 and back follow, clearly expressly left to the and States, supra, jury it question of whether believed explained As L.Ed. testimony wit- Government Judges Howe, of Criminal “Juries commerce, regarding interstate nesses Law,” 589: 52 Harv.L.R. present effect case the while rulings, open- Supreme District Court’s “In Court was that case the ing final conclusively upon of counsel to dis- statements first called Court, to direct pose than problem instructions more for years States find the United one been discussed hundred litigated crime. as to of the that element federal and the lower majority court, in courts. The of the necessary for me to ex- It is not thus fifty-five opinion page written supra, press disagreement Nick, with Harlan, held that the Mr. Justice progeny. Nonetheless, and its with ex- cases, bound, in criminal in civil deference, disagree Hu- I do treme with judge’s to follow the instructions doctrine, expansion lahan’s Nick dissenting all of law. matters already reasons which become seventy-three pages opinion of some evidentiary stage apparent. At the J., Shiras, Gray, con- Mr. Justice trial, jurisdiction already firmly elaborately curring, painstakingly court, vested trial and was deci- examined the state federal for the to determine whether the Court concerning question de- sions evidence, believed, Government’s preferable, his- termined that it was bring the activities the defendants torically politically, to acknowl- Instead, it was within the statute. right edge had a function of determine the disregard criminal the court’s cases guilt of the defendants as to each and all instructions.” crime. elements federal Hansen, Sparf the decision Since Further, whether commerce was and most it has been true federal way degree obstructed, delayed, or af- jury’s other American courts that question law, pure fected is not a but right general in crim- to return a verdict upon question fact, is a mixed of law and gives power, but inal cases it a naked say which the should have the final legal right a moral or to determine not Lastly, in its verdict. utmost im- regard- upon its own initiative the law portance, I submit when court 52 Harv. less of the court’s instruction. charge permitted that, jury majority decision L.R. 584. evidence, it believes the Government’s destroy present not seeks to case element the crime has estab- been goes “power” much but lished, there occurs a in that breach further and substitutes great liberty effectively bulwark of so swing the finder To of facts. right established the constitutional is, judicial pendulum I sub- that far jury. be tried If constitution- mit, of the defendants’ in clear violation guaranty preserved intact, al is to be rights. constitutional charge court should as to the foregoing law, extrava- application to the In addition leave long dissent, strong gantly mis- I of the law the facts. as well In fact composition form, givings both as in as to the defendant should grand petit jury, and of the but elaborating.

shall refrain from With remaining majority parts

opinion, agreement. I in substantial am judgments I dissent from the of affirm-

ance.

ON FOR REHEARING PETITIONS

AND PETITIONS FOR REHEAR- EN

ING BANC

PER CURIAM: Rehearing

The Petitions for denied are having polled

and the Court been

request of one of the members majority

Court and a the Circuit

Judges regular who serv- are active having (Rule it, ice not voted in favor of Procedure; Appellate

35 Federal Rules 12)

Local Fifth Peti- Circuit Rule Rehearing tions for En also Banc1 are

denied.

RIVES, Judge, Circuit dissents rehearing petitions the denial of the panel.

UNITED STATES America

Raymond Joseph EVERS DiRosa.

Appeal Joseph DiROSA.

No. 71-1187. Appeals, States Court of Third Circuit.

Argued June Sept. 30,

Decided Judges Gewin, 1. Circuit petition Coleman and God- tion or action on the for rehear- participate bold ing did not in the considera- en banc. notes who owned a con- obligations. plant Pennsylvania, sup- other forms of debts and crete in “caused plies pertinent hereto, and materials move in That at all times interstate points following commerce between in business entities and others various Jury plant unknown, States and site of his to the Grand were do- mixing ing ready the manufacture or mixed business within the State of Ala- * * engaged concrete bama Over the defendant’s and were interstate objections, Paragraph 1, the district commerce as described in court allowed the government above, to offer to wit: evidence that inter- a) Factoring additionally state commerce was The Alabama and Finance affected agreed supply Company, corporation because the victim an Alabama had to, plant into busi- cement to build a steel established and did enter that would ship product as, Factor, ness and its function interstate commerce. lending money, buying business included following language invoices, purchasing 31. The taken from and materials the indictment: builders and contractors. The said (18 1951) Count One: U.S.C. customers Factoring and clients of Alabama § Jury Charges: Company The Grand and Finance had pertinent in, hereto, in, 1. That all times offices and did business states part of the interstate commerce of the other than the state of Alabama. b) Aspinwall Associates, an Ala- United States has consisted of transportation corporation, to, between the bama several states established including as, holding company, of articles and commodities and did function monies, debentures, stocks, bonds the assets the stock of which consisted of Aspinwall Company. Aspinwall other forms of securities used the es- operation Company, corporation, tablishment and life an Alabama insur- companies, banks, to, did, ance and other finan- construct and was established operate part cial institutions. A further a boat marina State such commerce consists of the trans- Florida. prosecution showing It is true that not the facts af- the extortion showing specific spec- make some fected interstate commerce were not alleged facts Thus indictment. ified in the indictment.32 prosecution attempt made no to show Yet we do not think that case the reserves of Paramount falls within the rule of These Stirone. Compa- Trans-Southern Life Insurance defendants’ convictions are based through nies were invested securities scope indictment, facts outside the interstate commerce. Nor was it shown para- the defect in Stirone. The first purchased by that the bank Trans-South- graph against of the indictment these Corporation any dealings ern in- very describes broad terms

Case Details

Case Name: United States v. Oscar E. Hyde

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 23, 1971

Citation: 448 F.2d 815

Docket Number: 27777_1

Court Abbreviation: 5th Cir.