APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Criminal No. 75-82.
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges.
The Government statutorily appeals under 18 U.S.C. § 3731 (1971)*fn1 from an order of the United States District Court for the Western District of Pennsylvania. The order, inter alia, dismissed two counts of an indictment and suppressed certain evidence. We reverse and remand.
The criminal proceedings of which this case is a part began with information received by federal authorities that Francis P. Long, president of Long Hauling Company, was making "payoffs" to councilmen for the Borough of North Braddock, Pennsylvania, in return for the borough garbage removal contract, in violation of the Hobbs Act, 18 U.S.C. § 1951 et seq. (1971). Based on a tip that one of the illegal payments from Long was scheduled for a particular date and time, an FBI agent arranged to intercept the truck bearing the recipients from Long's place of business.
One of the riders of the truck was John Hackett, a borough councilman, the other defendant herein. A search of Hackett's person pursuant to a search warrant revealed nine envelopes, each containing $240 in cash, which were seized forthwith.
The five-count indictment in the instant case does not concern the alleged payoffs per se but stems from the grand jury investigation which was initiated thereafter. The indictment charges Long and Hackett with various actions to obstruct that investigation, but only the last two perjury counts of the indictment are before us on the Government's appeal. They charge each defendant separately with committing perjury before the grand jury in violation of 18 U.S.C. § 1623 (1971).*fn2 The district court judge concluded that the two counts were insufficient and dismissed them.
The district judge also granted Long's motion to suppress evidence seized from Hackett under the search warrant on the ground that the underlying affidavit failed to allege the degree of impact on interstate commerce required to establish a probable violation of the Hobbs Act.
The Government has appealed from those portions of the order entered by the district court judge which grant defendants' motions.
The interstate commerce aspect of the Hobbs Act was the subject of a recent en banc decision of this court. United States v. Mazzei, 521 F.2d 639 (3d Cir. 1975), cert. denied, 423 U.S. 1014, 96 S. Ct. 446, 46 L. Ed. 2d 385 (1975). See also United States v. Hilton, 534 F.2d 556 (3d Cir. 1976). Chief Judge Seitz, writing for the majority in Mazzei, quoted from Stirone v. United States, 361 U.S. 212, 215, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960), to the effect that Congress intended, by enacting the Hobbs Act, to punish interference with interstate commerce to the fullest extent possible under its constitutional power.
In keeping with Congressional intent, this court's position is:
Where the resources of an interstate business are depleted or diminished "in any manner" by extortionate payments, the consequent impairment of ability to conduct an interstate business is sufficient to bring the extortion within the play of the Hobbs Act.
521 F.2d at 642. Previously in United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972), this court had held that an activity whose "natural effect" was to burden interstate commerce met the commerce element of the Hobbs Act.
By holding that the Hobbs Act prohibits "only conduct which actually 'obstructs, delays, or affects commerce or the movement of any article or commodity in commerce' rather than the indirect relationship to commerce such as was involved in Kirschbaum Co. v. Walling, 316 U.S. 517, 521-23, 86 L. Ed. 1638, 62 S. Ct. 1116 (1942)," the district court in the instant case misconstrued the Hobbs Act's interstate commerce requirement. When viewed by the proper, ...