Before MARIS, GOODRICH and KALODNER, Circuit Judges.
This is an appeal from a conviction under the Hobbs Act, 18 U.S.C. § 1951 (1951). There were two counts, both charging extortion; defendant was found guilty on both. There is no unsolved problem with regard to interstate commerce for the companies against whom the extortion was found to have been practiced are engaged in interstate trucking.
The statute makes it an offense to obstruct, delay or affect commerce by "robbery or extortion". 18 U.S.C. § 1951(a). Extortion is then defined as "obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear * * *." 18 U.S.C. § 1951(b)(2). Defendant says that the facts presented do not establish a violation of the statute. Taking a view of the evidence most favorable to the Government, as we must at this stage,*fn1 we cannot accept this argument.
The defendant, John Sweeney, was a steward in Local 249 of the General Teamsters, Chauffeurs and Helpers Union (Teamsters). A man named Stanley Wray was employed in Pittsburgh to head up the Pittsburgh business of a trucking concern called W. H. Johns Company. For some time Wray had done similar work for the Hirt Trucking Company. Wray, during part of the time here in question, was a member of Teamsters but not Local 249 which operated in and about Pittsburgh.
From time to time prior to October 10, 1955, the defendant had made statements to Wray demanding that he use union "city men" to unload the trucks the employer companies brought into Pittsburgh. He threatened Wray with violent consequences to himself and the trucks if the demand was not complied with. On October 10, 1955, following a demand from Sweeney that Wray attend a meeting at the union hall, Wray went, accompanied by a man named Lombardo, General Traffic Manager of Johns Trucks and the company lawyer. During this meeting the defendant entered and threatened to kill Wray but evidently took no steps to accomplish this end.This meeting adjourned without anything being settled. But later in the day, at a meeting at a Pittsburgh hotel, Mr. Livengood, representing the Johns Company, and Messrs. Kegel, Fagan and Garfold, representing the Union, reached an agreement regarding the unloading of the trucks brought into the Pittsburgh area. By this agreement Wray was to become a member of the local union and the terms of the regional contract affecting employers and truck drivers were to be followed.
The critical point in the chronology comes next. At the conclusion of the satisfactorily ended conference at the hotel, Wray, counsellor Livengood and others went to the lot where Johns and Hirt trucks came and went. Exit from the lot was blocked and Sweeney was there. According to the testimony Sweeney substituted conditions of his making for those which had been reached at the conference. The conditions thus imposed were more onerous to the employer. Sweeney selected the man who was to do the unloading.Instead of paying him at the rate of $17.80 a day as agreed at the conference he was to be paid $17.80 for every truck wholly or partially unloaded. There was also evidence of payment to a welfare fund by which Sweeney imposed more expensive terms on management than the conference had agreed upon.
The testimony shows a long series of threats of violence by Sweeney prior to the ultimatum thus described. It also shows a series of violent acts by Sweeney in forcing his version of the terms imposed. Thus, when the man Sweeney selected to do the unloading was not available (one George Nicholas), Sweeney insisted that Nicholas be paid and used violence and threats of violence on the union member chosen as an alternate to Nicholas.
This evidence shows sufficiently an extortion of money from employers Hirt and Johns and it shows the extortion established both by violence and threats of violence. 18 U.S.C. § 1951(b)(2) (1951). The violence was directed to Wray and other trucking employees. The payments resulted from threats of violence. Payment, induced solely by wrongful use of fear of economic loss, is sufficient under the statute. Bianchi v. United States, 8 Cir., 1955, 219 F.2d 182, 194; United States v. Stirone, 3 Cir., 1958, 262 F.2d 571. Here, there was fear not only of economic loss but of physical injury as well.
It is not charged that Sweeney got the money paid by the trucking companies in the way just described. But it is settled under the statute that the offense is committed even though the person doing the extorting does not get the money. United States v. Green, 1956, 350 U.S. 415, 418-420, 76 S. Ct. 522, 100 L. Ed. 494; United States v. Kemble, 3 Cir., 1952, 198 F.2d 889, 890. The conclusion on this branch of the case is that there is sufficient evidence to make out a case of extortion under the statute.
The appellant raises the question of the sufficiency of the judge's charge on the subject of intent. It is to be noted that at the end of the trial and as the case was about to be submitted to the jury, the trial judge asked counsel for each side if there was anything more either wanted added to the charge. The trial counsel for the defendant categorically stated that there was not. The point, therefore, is not open, unless the omission is so serious as to produce an unjust result.*fn2
But inasmuch as this case must be reversed for a new trial for the reasons stated below, it is not necessary to rule on this point. On retrial the court, in charging the jury on extortion, should, when covering the element of intent, keep in mind the opinions of this Court in United Stats v. Kemble, 1952, 197 F.2d 316, 320-321, and United States v. Nedley, 1958, 255 F.2d 350. Both cases involved larceny-type offenses, of which extortion as defined in the Hobbs Act is one.*fn3 See also Morissette v. United States, 1952, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288.
It is suggested, although not clearly argued by the defendant, that Sweeney's conduct here was not forbidden by the act because it is exempt as lawful labor activity.*fn4 We need not decide in this case how far concerted employee activity through a union, accompanied by violence or threats thereof, is exempted from the act. The reason we do not need to meet this question is that here we do not find evidence in Sweeney's conduct of union activity. The conference at the Pittsburgh hotel, above described, was conducted by representatives of the union and representatives of the employer. An agreement was reached. There was, so far as we know, no violence nor threats of violence at that amicable meeting. The activities of Sweeney seem to have been selfprompted according to the testimony. He ignored the agreement reached and forced another one by ...