(7th Cir. 1957), in which the defendant moved for judgment of acquittal, arguing that the government had failed to prove an intent to extort. Id. at 159. The court rejected this argument stating: "Clearly the proof of a general intent to commit the crime charged is a necessary element. . . . However, it is axiomatic that a person is held to intend the natural consequences of his acts." Id. at 159-60 (citations omitted).
Defendant argues that the rule set down in the above cases does not survive the Supreme Court's decision in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). Defendant's argument is without merit.
In Sandstrom the defendant was convicted of deliberate homicide. Over objections of the defendant, the jury was charged that "the law presumes that a person intends the ordinary consequences of his voluntary acts." Id. at 513. The Court held that such language created an impermissible presumption by shifting the burden of proof regarding the element of intent to the defendant and that the charge thus violated the fourteenth amendment. Id. at 521-24.
The Sandstrom case is different from our case and the cases in Green and Furey, Sandstrom involved a specific intent crime, deliberate homicide, which required proof that a defendant purposely and knowingly caused the death of another. There is no such specific intent requirement under the Hobbs Act. Furey, supra, at 1059. Additionally, Sandstrom involved an instruction which created a conclusive presumption regarding the element of intent. Such an instruction was not given here, nor in Green or Furey.
For all of the reasons above, I believe that my charge, when examined as a whole, properly instructed the jury on the requirements of intent under the Hobbs Act.
2. Claim of right defense
Defendant contends that I erred in ruling that a claim of right to property taken by means of extortion is no defense to the charge in this case. Defendant argues that I also erred in my evidentiary rulings and in my charge to the jury in this regard. Accordingly, defendant argues that he is entitled to a new trial.
Defendant asserts here essentially the same arguments that he raised at trial. Defendant contends that Joseph Lam and Sheryl Hahn entered into a contractual relationship with Jennifer Santilli and Michael Morrone, who were acting as "straw men" for him. According to defendant, these contracts created "interlocking partnerships, Crescent Stained Glass and the Glass Works, with rights and liabilities inter sese." Through these contracts, defendant states, he became entitled to certain property which ultimately became the subject of these proceedings. Defendant argues that the jury could have inferred that Joseph Lam committed certain unprivileged acts regarding the partnerships' business and that Agnes believed that his action on September 13, 1981 in removing the property from Crescent Stained Glass was "not only legally permissible but a socially desirable method of dissolving the partnership." Defendant contends that his lawful right or belief in a right to the property involved is an affirmative defense to the crime of Hobbs Act extortion. Defendant argues that this claim of right is also relevant to the intent requirements under the Hobbs Act.
In support of this position, in his post-trial motion defendant relies heavily on the Model Penal Code. The Model Penal Code contains a little-adopted provision that an honest belief by a defendant that he has a right to the property involved and to acquire the property by the method employed will provide an affirmative defense to prosecution for theft. Model Penal Code § 223.1(3). Such a belief would not, however, provide a defense to offenses such as assault, reckless endangerment, or criminal coercion.
Defendant's reliance on the Model Penal Code is misplaced. The Model Penal Code is not the law in this jurisdiction, nor has the section above been accepted in a majority of states which have adopted the Model Penal Code. More importantly, however, and as defendant admits, this section of the Model Penal Code, directly contravenes the decisional law in this circuit and others regarding Hobbs Act extortion. Thus, defendant asks me to ignore all contrary decisions and adopt as a correct interpretation of the Hobbs Act the Model Penal Code view regarding the claim of right defense.
In addition to the Model Penal Code, defendant relies primarily on the Supreme Court's decision in United States v. Enmons, 410 U.S. 396, 35 L. Ed. 2d 379, 93 S. Ct. 1007 (1973). The defendants in Enmons were members and officials of labor unions representing striking Gulf States Utilities Company employees. The indictment charged that the defendants and others conspired to use and did in fact use violence to obtain for the striking employees higher wages and other employment benefits from the company, in violation of the Hobbs Act. Id. at 398. The defendants' motion to dismiss the indictment was granted by the trial court. Id. After an extensive review of the Act's legislative history, the Supreme Court held that the Hobbs Act does not proscribe violence committed during a lawful strike for the purpose of inducing an employer's agreement to legitimate collective bargaining demands. Id. at 411-12.
Defendant argues that the Enmons decision applies not only to labor disputes, but also is applicable to all cases involving Hobbs Act extortion. Defendant argues that in order to find a violation of the Hobbs Act, the obtaining of the property involved by the defendant must be "wrongful," that is, without a legitimate claim of right to the property. Defendant places great weight on the Court's statement that the term "wrongful" as used in the Hobbs Act has meaning only if "it 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." Id. at 399-400. Defendant argues that while the Supreme Court considered the legislative history of the Hobbs Act in making its decision that the provisions of the Hobbs Act did not apply to violence regarding legitimate labor demands, in fact it was engaging in an explicit exercise in statutory construction focusing on the word "wrongful."
In United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S. Ct. 728, 62 L. Ed. 2d 728 (1980), our court of appeals considered the application of the Enmons doctrine to areas other than labor disputes. The defendants in Cerilli were state employees convicted of Hobbs Act extortion under color of official right for requiring payments in exchange for public contract awards. Id. at 418. Defendants argued that the payments in question were actually political contributions and that the solicitation of political contributions is not "wrongful" under the Hobbs Act. Defendants argued that their theory was supported by the Supreme Court's decision in Enmons. Id. 418-19. Judge Higginbotham rejected this argument, stating that whereas the employees in Enmons may have had a lawful claim to wages, the Cerilli defendants had no lawful claim to the political contribution solicited. Id. at 419. More importantly, however, Judge Higginbotham held that the Enmons decision was explicitly tied to labor disputes:
Any application of Enmons to cases outside of [the labor dispute] context must be done with caution. Otherwise there is a danger that Enmons, if read as appellants read it, could effectively repeal the Hobbs Act. . . . 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 violations 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.
Id. at 419-10.
Other courts faced with arguments similar to those raised by defendant reached the same conclusion as Judge Higginbotham in Cerilli and refused to extend Enmons beyond the labor context. E.g., United States v. Zappola, 677 F.2d 264, 268-70 (2d Cir. 1982), cert. denied, 459 U.S. 866, 103 S. Ct. 145, 74 L. Ed. 2d 122 (1982) (Enmons not applicable where two businessmen beat and threatened a third businessman to coerce the payment of an alleged debt); United States v. Porcaro, 648 F.2d 753, 759-60 (1st Cir. 1981) (Enmons will not prevent Hobbs Act prosecution for use of force and threats to resolve a contractual dispute, even if appellant had a legitimate claim to property); United States v. Warledo, 557 F.2d 721, 729-30 (10th Cir. 1977) (Enmons not applicable to pursuit of an allegedly valid claim against a railroad by the Seminole Nation Treaty People through threats and violence).
For all of the reasons above, defendant's claim of right defense was properly excluded.
argument and stated that "the true gist of defendants' argument is that the use of threats of violence or violence to obtain money . . . is not a violation of the Hobbs Act unless the illegal means were used to press an unlawful claim." Id. at 729. The court held that the trial court was not obliged to permit the defendants to explain their "good" intentions in seeking the money, stating that their intent was not relevant to a showing that the defendants' activity was not "wrongful" within the terms of the Act. Id.
Agnes now raises essentially the same argument as that raised in Warledo. For the reasons stated by the Tenth Circuit, these arguments are without merit.
3. Victims of the extortion
Agnes contends that the jury was erroneously instructed that any of the five persons present at Crescent Stained Glass on September 13, 1981 could be victims of the extortion. Accordingly, he argues that he is entitled to a new trial. I disagree.
Specifically, the jury was instructed:
With regard to the first element, the term "property" includes not only money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth. The victim or person threatened need not be the owner of the business which might be interrupted. It is sufficient that the victim have some interest in the business.