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UNITED STATES v. AGNES

February 27, 1984

UNITED STATES OF AMERICA
v.
LOUIS AGNES



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 On October 18, 1982, Louis Martin Agnes, Mitchell Inselberg, Michael Morrone and Jennifer Santilli were charged in a two count indictment with obstruction of interstate commerce in violation of the Hobbs Act, and conspiracy to violate the Hobbs Act. Agnes was convicted on March 14, 1983, after a four-week trial, of interfering with interstate commerce by means of extortion. He was acquitted of the conspiracy charged in Count II. The three co-defendants were acquitted on both counts.

 Agnes filed post-trial motions seeking judgment of acquittal or, in the alternative, a new trial, on April 4, 1983 pursuant to an extension of time I granted him because of a change in his counsel. *fn1" On April 2, 1983 I issued an order permitting defendant to file a memorandum of law in support of his motions within fourteen days following the filing of the trial transcript because defense counsel stated that he could not adequately brief the motions without reference to the trial transcript of the proceedings. On August 15, 1983 the transcript was filed. Thereafter defendant filed his memorandum of law and the government responded. On November 30, 1983 I issued an order denying Agnes' motions and scheduled sentencing. This memorandum contains a statement of my reasons.

 The evidence at trial showed as follows: In the fall of 1980 Agnes met and became friendly with Joseph Lam and Sheryl Hahn, who were both stained glass artisans working at the Glass Workbench, a stained glass workshop and gallery in New Hope, Pennsylvania. Agnes was interested in their work and visited them at the Glass Workbench on occasion to make purchases of stained glass objects made by them. Agnes told Lam and Hahn he believed that their craftsmanship was superior to that of other stained glass artisans in the area and stated that if they ever decided to open a shop at their own, he would be interested in providing them with financial backing.

 In April, 1981, Hahn and Lam learned that the lease on the building in which the Glass Workbench was located would soon become available and they decided to take Agnes up on his offer and open their own business. After some discussion, Agnes loaned Hahn and Lam $5,000 in cash, at no interest. Agnes asked Lam to sign an I.O.U. for the money and stated that he would have a friend of his, Edward Tierno, draft more formal loan documents for their signatures.

 Lam and Hahn opened their new business, Crescent Stained Glass Company, in mid-April, 1981. It was not until one month later that Agnes and Tierno met with Lam and Hahn with the formal documents prepared by Tierno. However, instead of the loan agreement that they believed Tierno would prepare, the documents were in the form of two limited partnership agreements which formed two interlocking partnerships, Crescent Stained Glass, which manufactured stained glass, and Glass Works, which sold stained glass objects. Hahn and Lam were upset and confused. Not only was the form of the documents unexpected, but Agnes' name did not appear on them. Instead, the documents contained the names Michael Morrone and Jennifer Santilli along with Lam's and Hahn's names. Agnes told them that these names were used as "straw parties" to represent his interest because he was going through divorce proceedings and did not want his wife to learn of his assets. Because of these circumstances Lam and Hahn did not want to sign the agreements. They eventually did sign them that evening, however, because Agnes became angry and began threatening them. The agreements described the $5,000 loan as a capital investment by Marrone and Santilli. The agreements provided that beginning in July, 1981, the $5,000 would be repaid over a period of twenty-one months, at a rate of $238.10 per month. The total amount repaid would be $5,000.10.

 Although the loan payments were not to begin for three months, Agnes began asking Lam for money from the business almost immediately. In May, 1981, at Agnes' insistence, Lam leased a Mercedes Benz automobile for Agnes. In June and July, 1981, Lam gave Agnes two cash payments of $1,000 each in response to his constant demands for more money.

 On September 13, 1981 at 8:30 p.m. Agnes arrived at the shop, entering through the back door with Inselberg, Santilli, Morrone, and three men. The shop had closed earlier in the evening but Hahn and Lam were present, along with Thomas Bryant, Leigh DiMezza, and Michael Rogers, who were employees. Agnes announced to those present that "the business is closed," and that he was "pulling the plug." Agnes then threatened Lam, stating "don't get in my way or I'll break every bone in your body starting with your face." Agnes then hit Lam in the face. Agnes stated that because Lam ripped him off, he was taking everything in the shop. Agnes told Lam that if Lam knew what was good for him, he would make sure that no one interfered with Agnes and those accompanying him. All present were put in fear by defendant's actions and threats.

 Agnes then supervised the removal of all the items from the shop. He told Lam that if he did not want all the stained glass items to be broken in the loading process, he had better help pack. During this time, Agnes directed those who had accompanied him, coordinating their efforts. He decided which items that they would take and which would be left behind. Agnes also told Morrone to guard Lam so that he did not leave the store or prevent them from removing items from the store.

 Agnes continued to threaten Lam throughout the evening. He repeatedly told Lam, among other things, that he was going to break Lam's legs, that he would break Lam's hand so that he could never make stained glass again, that he should put a bullet through Lam's head, and that Lam didn't deserve to see his next birthday. Lam, as well as Hahn, and the other store employees who witnessed these events were all severely frightened and intimidated by Agnes and his threats and threatening behavior. When one employee, Thomas Bryant, attempted to hide certain consigned items from Agnes so that they would not be taken, Agnes confronted him, threatened him, and then hit him in the jaw causing Bryant to fall and injure his head. Bryant had to receive medical treatment for these injuries, which were diagnosed as a concussion. None of the others tried to prevent Agnes and the others from emptying the store, even though they knew a number of the items were consigned and did not belong to Crescent. Morrone continued to guard Lam and Agnes continued to behave in a threatening manner. The New Hope police, alerted to some unusual events occurring at the store, came to the shop twice. Each time Lam told them that everything was alright, after being threatened by Agnes.

 Almost everything in the shop was taken including business records, stained glass items, personal and consignment goods. Before he left, Agnes forced Lam to sign a receipt which stated that Lam sold the contents of the shop to Agnes for $1. Lam signed the receipt after Agnes told him that he would never cut glass again if he refused to sign and Morrone told him to do what Agnes wanted and he wouldn't be hurt. As he left, Agnes told Lam he would break Lam's legs if Lam touched the business checkbook and that he would return the next day to put a bullet through the shop's inventory of raw glass, which did not fit in the Mercedes Benz and the pickup truck in which the group arrived.

 In March, 1982, during searches made pursuant to separate warrants, the Philadelphia Police Department and the FBI removed business records for the business and some of the stained glass items from Agnes' apartment.

 Agnes has moved for a judgment of acquittal, arrest of judgment, or, in the alternative, for a new trial. *fn2" I shall address the grounds he raises seriatim.

 1. Jury instructions regarding intent

 Defendant argues that a new trial is warranted due to "fundamentally deficient jury instructions on a key issue in this case i.e., the defendant's criminal intent." Defendant contends that my instructions failed to adequately discuss the intent one must possess in order to be found guilty of extortion under the Hobbs Act. In support of his allegations, defendant quotes an isolated portion of my charge, which he contends is inadequate to inform the jury of the intent necessary to find him guilty of Hobbs Act extortion. When read as a whole, I believe that my instructions to the jury adequately address the issue of intent.

 The adequacy of jury instructions is to be determined by an examination of the charge as a whole. United States v. Palmeri, 630 F.2d 192, 201 (3d Cir. 1980), cert. denied, 450 U.S. 967, 67 L. Ed. 2d 616, 101 S. Ct. 1484 (1981). Accordingly, small portions of a charge are not to be judged in artificial isolation. Id. The portions of the charge challenged by the defendant must therefore be read in the full context of my instructions.

 When I began my charge to the jury, I instructed them that they should consider my charge as a whole, and should not emphasize one instruction to the exclusion of another. Tr. 17-16. I described to the jury the charges contained in Count I of the indictment, telling them that defendant was charged with obstructing interstate commerce and attempting to do so by extortion in violation of the Hobbs Act. Tr. 17-27. I read the relevant portions of the statute. Tr. 17-28. I then outlined the elements of the offense, stating that the Government was required to prove each element beyond a reasonable doubt: (1) that the defendant induced his victim to part with property; and (2) that the defendant did so by extortion as defined in my instructions; and (3) that in doing so, interstate commerce was interrupted or adversely affected. Tr. 17-28. I told the jury that extortion is "the obtaining of property from another with his consent, when the consent is induced by the wrongful use of actual or threatened force, violence or fear." Tr 17-29/30. By way of further explanation, I stated that the mere voluntary payment of money or delivery of property not induced by the wrongful use of actual or threatened force, violence or fear would not constitute extortion. Tr. 17-31. I then gave the instruction challenged by the defendant:

 
It is not necessary for the Government to show that a defendant intended to specifically obstruct, delay or affect interstate commerce. It is necessary that the Government's evidence prove that the defendant intended to commit an act prohibited by the statute, the natural consequences of which would be to obstruct, delay or affect commerce.
 
Intent and motive should never be confused. Motive is what prompts a person to act, while intent refers only to the state of mind with which the act is done.

 Tr. 17-33/34.

 Defendant objects to that portion of my charge in which I stated that the government must prove "that the defendant intended to commit an act prohibited by the statute." This instruction, when examined in light of my prior statement that the defendants were charged with violating the Hobbs Act by extortion and my definition of that term, clearly states that the government must prove that the defendants intended to commit extortion as I defined that term. Thus, when read as a whole, my instructions stated that the government was required to prove beyond a reasonable doubt that the defendants intended to obtain property from the victim by inducting that person's consent through the wrongful use of actual or threatened force, violence or fear. This clearly goes beyond that which is required under the Hobbs Act. See United States v. Mitchell, 463 F.2d 187, 192 (8th Cir. 1972), cert. denied, 410 U.S. 969, 35 L. Ed. 2d 705, 93 S. Ct. 1449 (1973); United States v. Furey, 491 F. Supp. 1048, 1061 (E.D. Pa.), aff'd, 636 F.2d 1211 (3d Cir. 1980), cert. denied, 451 U.S. 913, 68 L. Ed. 2d 304, 101 S. Ct. 1987 (1981).

 Defendant contends that my instructions to the jury were deficient because I did not tell the jury that they must find that the defendant intended to instill fear into the victim.

 My instructions to the jury were taken almost verbatim from those contained in Devitt & Blackmar. No one submitted to me a point for charge on the issue defendant now raises. Defendant's attorney submitted no proposed points for charge, but joined in those filed by other defense counsel. Neither counsel for the other defendants nor the government submitted such a proposed instruction. *fn3" Likewise, no one raised any objection to my charge for the reason defendant now raises. Thus, I had no opportunity at trial to evaluate the point defendant now raises.

 In United States v. Furey, supra, the defendant was charged with attempted extortion and conspiracy to extort in violation of the Hobbs Act. Id. at 1052-53. Like the defendant here, he asserted as error the court's failure to charge the jury that they must find that the defendant intended to instill fear in the mind of his victim. Id. at 1062. After reviewing the legislative history of the Hobbs Act and New York state decisional law defining extortion, Judge Bechtle rejected this contention. Id. at 1061-63. He stated that the Hobbs Act is a general intent statute and not a specific intent type of statute, and that Congress intended that it not be necessary that the defendant intend to instill fear in the victim, but only that the natural and necessary effect of the defendant's actions on the victim. Id. In my charge I instructed the jury that the victim's consent must be induced by threats or actual violence, force or fear, and that the voluntary delivery of property not induced by threats or fear would not constitute extortion. I thus adequately described the requisite effect of the defendant's actions on the victim.

 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 ...


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