APPEAL FROM JUDGMENTS OF CONVICTION IN CRIMINAL No. 76-22 (W.D. PA.)
Before Aldisert, Adams and Higginbotham, Circuit Judges.
In recent years, much attention has been paid on the national level to the methods by which political parties finance their partisan activities and by which political leaders choose individuals for certain high-ranking positions. This case involves the relationship, on a local level, between the financing of political parties and the choice of individuals for certain not-so-high-ranking but sometimes lucrative work. Appellants Egidio Cerilli, Maylan Yackovich, Ralph Buffone, and John Shurina have been convicted and sentenced for conspiring to violate the Hobbs Act, 18 U.S.C. § 1951*fn1 and for substantive violations of that Act. We will affirm the respective judgments of sentence.
The appellants are employees of the Pennsylvania Department of Transportation (PennDOT) in Westmoreland County, District 12-5. Cerilli occupied the position of Superintendent while Buffone, Yackovich and Shurina were Assistant Superintendents.
In order to fulfill its snow removal and general road maintenance and repair responsibilities, PennDOT leases equipment from private owners. The leasing is accomplished at the discretion of the local superintendent and all such leases must be approved by the superintendent or his designee. The superintendent has the authority to negotiate rates for these leases up to a maximum rate set by the Department of Highways. Once a lease is signed, the amount of work for which a lessor's equipment is used is also determined at the county level.
A number of lessors testified at trial that one or more of the defendants required that payments be made as condition to the lessors' equipment being used.
Appellants do not challenge these basic facts. Instead they attack their convictions primarily on the theories that these facts do not constitute violations of the Hobbs Act and that the evidence was not sufficient to warrant conviction under the Hobbs Act because appellants' participation in a conspiracy was not proved and because there was an insufficient effect on interstate commerce.*fn2
II. IS THE COERCIVE SOLICITATION OF POLITICAL CONTRIBUTIONS A VIOLATION OF THE HOBBS ACT?
Appellants contend that the payments they obtained were political contributions. The indictment does not specify for what purpose the payments were used. Testimony at trial established that some of the payments were in the form of checks made out to political committees. We will assume for the purpose of this discussion that these payments did constitute political contributions.
Appellants argue that since the Hobbs Act defines extortion as the "Wrongful use of actual or threatened force, violence, or fear," (emphasis supplied), if the force, violence or fear is used for a lawful purpose, the use is not wrongful and extortion is not committed. Appellants submit that the solicitation of political contributions is not only lawful, but is protected by the First Amendment.*fn3 Appellants also argue that extortion "under color of official right" is likewise restricted to situations where the purpose for the obtaining of the payments is unlawful.
Appellants urge that their theory is supported by the Supreme Court's decision in U. S. v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973). In that case, the indictment charged certain members and officials of labor unions with committing acts of violence and destruction against the property of the Gulf States Utilities Company in the course of a strike against that company in order to force that company to agree to a contract providing for higher wages and other benefits. The Court stated that "wrongful" as used in the Hobbs Act "limits the statute's coverage to those instances where the obtaining of the property would itself be "wrongful' because the alleged extortionist has no lawful claim to that property." 410 U.S. at 400, 93 S. Ct. at 1009-1010. The Court concluded that where violence is used "to achieve legitimate union objectives . . . there has been no "wrongful' taking of the employer's property; he has paid for the services he bargained for, and the workers receive the wages to which they are entitled in compensation for their services." Id.
In reaching this conclusion the Court relied heavily on the legislative history of the Hobbs Act. Section 2 of the Anti-Racketeering Act of 1934, 48 Stat. 979, while similar to the Hobbs Act, contained an exception for the payment of wages by an employer to an employee. On the basis of this language, the Court in U. S. v. Local 807, 315 U.S. 521, 62 S. Ct. 642, 86 L. Ed. 1004 (1942) held that a scheme by New York City teamsters to coerce payments from out-of-town drivers and owners for allowing their trucks to enter the city did not violate the Anti-Racketeering Act. In response, Congress passed what became the Hobbs Act. The legislative history made it clear that the new act reached extortion by union members "under the guise of obtaining wages." 91 Cong.Rec. 11900 as quoted in U. S. v. Enmons, 410 U.S. at 403, 93 S. Ct. at 1011. That history also made it clear that the new act "does not have a thing in the world to do with strikes." 91 Cong.Rec. 11912 as quoted in U. S. v. Enmons, 410 U.S. at 404, 93 S. Ct. at 1012.
The Court was quite explicit in stating its reluctance to construe the Hobbs Act as a method of regulating strike actions:
(I)t would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business of policing the orderly conduct of strikes. Neither the language of the Hobbs Act nor its legislative history can justify the conclusion that Congress intended to work such an extraordinary change in federal labor law or such an unprecedented incursion into the criminal jurisdiction of the States.
410 U.S. at 411, 93 S. Ct. at 1015.
We are thus confronted with the question of whether the political contributions here are sufficiently similar to the wage payments in Enmons to bring this case within Enmons' precedential orbit. We conclude that they are not.
Once a collective bargaining agreement is reached, it is generally impossible to determine what portion of the benefits, if any, are the result of violent action. Thus the Court in Enmons could properly conclude that the defendants there had a "lawful claim" to the wages they received. It is clear from this record, however, that the contributions were, in substantial if not total measure, a result of appellants' extortionate actions. Thus, although the solicitation of political contributions is not inherently "wrongful,"*fn4 the solicitations here were "wrongful" in that neither the appellants nor any political committee had a "lawful claim" to those contributions.
More importantly, Enmons is a labor case. The Court's reasoning was obviously and explicitly tied to the labor context and more specifically to the strike context. Any application of Enmons to cases outside of that context must be done with caution. Otherwise there is a danger that Enmons, if read as the appellants read it, could effectively repeal the Hobbs Act. The receipt of money whether by a political party, a charitable institution or by an individual is generally not inherently wrongful. The wrong under the Hobbs Act is the manner in which it is obtained. Thus we understand Enmons as not relying primarily on the legitimacy of the union's objectives but rather on the clear Congressional intent, as expressed both in the legislative history of the Hobbs Act and the entire federal scheme regulating labor-management relations, that violence during labor strikes not be punishable as extortion under the Hobbs Act. There is no corresponding intent to exempt the type of activity here from the ambit of the Act.*fn5
It is well-established that a person may violate the Hobbs Act without himself receiving the benefits of his coercive actions. See U. S. v. Green, 350 U.S. 415, 420, 76 S. Ct. 522, 100 L. Ed. 494 (1956), U. S. v. Trotta, 525 F.2d 1096, 1098 n.2 (2d Cir. 1975), Cert. denied, 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976); U. S. v. Provenzano, 334 F.2d 678, 686 (3d Cir.), Cert. denied, 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544 (1964). U. S. v. Trotta itself involved political contributions and the court there held that this fact did not alter the defendant's criminal liability.*fn6 This court in U. S. v. Homer, 545 F.2d 864 (3d Cir. 1976) (per curiam), Cert. denied, 431 U.S. 954, 97 S. Ct. 2673, 53 L. Ed. 2d 270 (1977), which involved the conviction of a state legislator under the Hobbs Act, stated that evidence that the defendant delivered the money he had extorted to the local party treasurer was not probative of the extortion charge and was therefore properly excluded. On the basis of this well-established line of case law, we conclude that the appellants' conduct here constituted extortion regardless of whether the payments went into appellants' pockets or their party's coffers.
Appellants argue that the passage of 18 U.S.C. § 601 indicates that Congress did not view the type of activity involved here as violating the Hobbs Act. § 601(a) provides:
Whoever, directly or indirectly, knowingly causes or attempts to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, by means of the denial or deprivation, or the threat of the denial or deprivation, of
(1) any employment, position, or work in or for any agency or other entity of the Government of the United States, a State, or a political subdivision of a State, or any compensation or benefit of such employment, position, or work; or
(2) any payment or benefit of a program of the United States, a State, or a political subdivision of a State;
if such employment, position, work, compensation, payment, or benefit is provided for or made possible in whole or in part by an Act of Congress, shall be fined not more than $10,000, or imprisoned not more than one year, or both.
The primary concern of Congress in passing § 601 was obviously with preventing government employees from having to make political contributions in order to obtain or retain their jobs. See S.Rep.No.94-1245, 94th Cong., 2nd Sess., reprinted in (1976) U.S.Code Cong. & Admin.News, p. 2883; H.R.Rep.No.94-986, 94th Cong., 2nd Sess. (1976). It is doubtful whether appellants could be prosecuted under this section since they obtained payments from lessors not employees. Section 601 is clearly not jurisdictionally co-extensive with the Hobbs Act. The jurisdictional basis for § 601 is that the employment, position, work, etc. must have been provided at least in part by an Act of Congress. This is in contrast to the Hobbs Act's jurisdictional requirement of an effect on commerce. We conclude that § 601 is Congress' attempt to deal with a problem related to but not identical with the problem at which the Hobbs Act is aimed. The passage of § 601 thus does not indicate that activities such as those in which appellants have engaged are not proscribed by the Hobbs Act. We hold therefore that the coercive solicitation of political contributions is within the realm of actions that are illegal under the Hobbs Act.*fn7
III. ADEQUACY OF THE EVIDENCE
Having concluded that the relationship between appellant's actions and the political process does not insulate them, as a matter of substantive law, from Hobbs Act liability, we face their argument that this relationship at least affords them a measure of procedural protection. Appellants' contention is that since their "allegedly criminal conduct was inextricably linked to protected political activity . . . (t)he doctrine of Strictissimi juris . . . requires the highest standard of proof to be applied to every question of sufficiency arising at the trial." Appellants' Brief, p. 51.
This doctrine, which literally translated means "of the strictest right," apparently arose out of two Supreme Court cases reviewing convictions under the Smith Act, 18 U.S.C. § 2385. In Scales v. U. S., 367 U.S. 203, 232, 81 S. Ct. 1469, 1487-88, 6 L. Ed. 2d 782 (1961), the Court stated that "Smith Act offenses involving as they do subtler elements than are present in most other crimes, call for strict standards in assessing the adequacy of the proof needed to make out a case of illegal advocacy." The Court in Noto v. U. S., 367 U.S. 290, 299-300, 81 S. Ct. 1517, 1522, 6 L. Ed. 2d 836 (1961) ruled that the individual defendant's criminal intent like other elements of a violation of the membership clause of the Smith Act,*fn8 "must be judged Strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share."
The doctrine was applied in U. S. v. Spock, 416 F.2d 165 (1st Cir. 1969), where defendants who had been involved in the formulation and distribution of "A Call to Resist Illegitimate Authority," were convicted of conspiring to aid others in refusing or evading registration of service in the armed forces in violation of 50 U.S.C. App. § 462(a). Partially as a result of the application of this doctrine, the convictions were vacated. The Seventh Circuit, in U. S. v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972), Cert. denied, 410 U.S. 970, 93 S. Ct. 1443, 35 L. Ed. 2d 706 (1973) which involved convictions under the Federal Anti-Riot Act, 18 U.S.C. §§ 2101, 2102, described the application of the doctrine in the following terms:
When the group activity out of which the alleged offense develops can be described as a bifarious undertaking, involving both legal and illegal purposes and conduct, and is within the shadow of the first amendment, the factual issue as to the alleged criminal intent must be judged Strictissimi juris. This is necessary to avoid punishing one who participates in such an undertaking and is in sympathy with its legitimate aims, but does not intend to accomplish them by unlawful means. Specially meticulous inquiry into the sufficiency of proof is justified and required because of the real possibility in considering group activity, characteristic of political or social movements, of an unfair imputation of the intent or acts of some participants to all others.
The coercive solicitation of appellants here is not the type of "bifarious undertaking . . . within the shadow of the first amendment" that warrants the application of the Strictissimi juris doctrine. We need not sort out the subtle shadings of intent involved in Scales, Noto, Spock, and Dellinger. We need not seriously fear that convictions in cases such as this will chill the legitimate exercise of first amendment rights. Appellants have not been indicted for membership in a political party nor have they been indicted for their personal political preferences. They have been indicted for extortion. We are satisfied that the traditional standards of proof and of judicial review are fully adequate to protect appellants' rights without application of the doctrine of Strictissimi juris.
B. Evidence of Conspiracy
According to appellants, the evidence at trial "showed that the county superintendent of PennDOT and his assistants were committed to aggressive fundraising for the Democratic Party, but no agreement to extort, whether express or implied, was shown." Appellants' Brief, p. 39. We agree with the government that the evidence showed a great deal more than a commitment to aggressive fundraising.
"Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a "development and collocation of circumstances'." Glasser v. U. S., 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942), quoting U. S. v. Manton, 107 F.2d 834, 839 (2d Cir. 1938) Cert. denied, 309 U.S. 664, 60 S. Ct. 590, 84 L. Ed. 1012 (1940). Accord, U. S. v. Schoenhut, 576 F.2d 1010, 1027 (3d Cir.), Cert. denied, 439 U.S. 964, 99 S. Ct. 450, 58 L. Ed. 2d 421 (1978).
At trial, eleven lessors testified to the demands made of them by the appellants. Although the "shake-down" techniques were not always identical,*fn9 the basic pattern of appellants' demanding a specific amount, generally based on a percentage of the lessors' income under the lease, remained essentially constant. Particularly persuasive evidence of joint action is the testimony of several lessors who dealt with two or more of the appellants.
One lessor, Mr. James C. Poole, testified that Cerilli demanded $2,000 in cash from him and that Poole made this payment at Cerilli's home in the presence of Yackovich. William Ramaley testified that he met with Buffone who demanded $700 and that, during this meeting, Cerilli entered the room and was introduced to him. The following year Yackovich contacted him and demanded 5% Of the amount Ramaley had received under his PennDOT lease in the last year.
Walter Seigfried testified that he met with Buffone who told him, "I am the hatchet man, we want 3% Of what you made last year." After some argument, Seigfried agreed, but determined that 3% Of his earnings came to $525 rather than the $750 that Buffone demanded. He, therefore, called Yackovich to make sure that the $525 figure was adequate. Yackovich, after coming to Seigfried's home and reviewing his records, accepted a check for $525. Seigfried then met with Cerilli to determine when his equipment would be put back to work.
Paul Caletri testified that after Buffone or another assistant superintendent had demanded $125, he went to see Buffone, but was taken into Yackovich's office because Buffone was not in. Caletri complained that he had not earned $125 in the previous year and Yackovich looked at a ledger to determine how much Caletri had earned and when money was last demanded of him. Yackovich told him that he would have to discuss the matter with Cerilli and took Caletri into Cerilli's office. After a discussion with Cerilli, Caletri agreed to pay $75. At this meeting, ...