U.S. v. Jacobs, 75-1777

• Citation: 543 F.2d 18
• Decision Date: 12 October 1976
• Docket Number: No. 75-1777,75-1777
• Parties: 93 L.R.R.M. (BNA) 2513, 79 Lab.Cas. P 11,690 UNITED STATES of America, Plaintiff-Appellant, v. Robert JACOBS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 18

543 F.2d 18

93 L.R.R.M. (BNA) 2513, 79 Lab.Cas. P 11,690

UNITED STATES of America, Plaintiff-Appellant, v. Robert JACOBS, Defendant-Appellee.

No. 75-1777.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1976.

Decided Oct. 12, 1976.

Samuel K. Skinner, U. S. Atty., Thomas Johnson, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant.

Richard G. Schultz, Chicago, Ill., for defendant-appellee.

Before FAIRCHILD, Chief Judge, HASTINGS, Senior Circuit Judge, and EAST, Senior District Judge. ^*

FAIRCHILD, Chief Judge.

The Government appeals from an order of the district court dismissing a perjury indictment against defendant Robert Jacobs. We must decide whether United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973), which held the Hobbs Act, 18 U.S.C. § 1951, inapplicable to use of force in achieving legitimate labor ends, also protects Jacobs, a union employee, from prosecution for perjury before a grand jury which was investigating possible Hobbs Act violations.

On May 15, 1975 the May 1975 Grand Jury returned a one-count indictment against Jacobs charging him with violation of 18 U.S.C. § 1623 (making false declarations before a grand jury). The indictment alleged that Jacobs had falsely declared that he had never carried or brandished a gun in the course of his union organizing activities. The indictment read, in part:

"The May 1975 Grand Jury charges:

1. On September 19, 1973, at Chicago, in the Northern District of Illinois, Eastern Division, the September 1973 Grand Jury was sitting as a duly impaneled and sworn grand jury of the United States.

2. At the time and place aforesaid, the September 1973 Grand Jury was conducting an investigation and receiving testimony from witnesses pertaining to possible violations of Title 18, United States Code, Section 1951, and other federal criminal statutes.

3. It was a matter material to said investigation that the grand jury should know and should be informed of the methods by which representatives and agents of the Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local No. 705, sought to obtain recognition by gasoline and service station dealers of Local 705 as the exclusive bargaining representative of their employees.

4. From in or about the Spring of 1963 through October 1968, Robert Jacobs was employed as an agent of Local 705 whose duties and responsibilities included, among others, organizing gasoline and service station employees and obtaining recognition of Local 705 as a bargaining representative by gasoline and service station dealers."

Succeeding paragraphs set out defendant's denials that he had carried or brandished a gun in the course of his activities, and the falsity of those denials.

The district court on June 23, 1975 dismissed the indictment on the grounds that the indictment on its face showed that the grand jury was investigating conduct that was unindictable under Enmons, supra, and that to survive Enmons the indictment would have to allege some reason to question the legitimacy of the union activities being investigated.

On appeal, the parties failed to agree on the precise issue of the case. Counsel for Jacobs, conceding arguendo the false declarations, contends that the issue is one of materiality. He argues that Jacobs' false declarations before the September 1973 Grand Jury were in response to questions which were not material to the grand jury's investigation and therefore they were not proscribed by 18 U.S.C. § 1623. The Government, on the other hand, contends that the questions and false declarations were clearly material to the investigation, and frames the issue as whether the indictment shows on its face that the inquiry being conducted was unauthorized. False declarations made before a grand jury material only to an investigation beyond its jurisdiction or authority do not constitute perjury. Brown v. United States, 245 F.2d 549, 552 (8th Cir. 1957).

We agree with the Government's analysis of the issue, remembering, of course, that we are presently testing the sufficiency of an indictment. The indictment alleges that Jacobs' false declarations were material, and it seems clear that whether Jacobs brandished a gun while calling on service stations in the process of organizing employees and seeking recognition seems clearly material to the alleged purpose of the investigation the methods by which recognition was sought. The real question is whether the alleged purpose was wholly beyond the grand jury's authority. Can it be said, from the face of the pleading, either that the grand jury was looking only for conduct which, under Enmons, was not a federal offense, or that no conduct which might be found in an investigation so described could be indictable after Enmons ?

In Enmons, employees of a utilities company were charged with conspiring to obstruct commerce during a strike: firing rifles at three company transformers, draining the oil from a transformer, and blowing up a transformer substation. The Supreme Court held that an indictment under the Hobbs Act must be dismissed, because "the Act does not apply to the use of force to achieve legitimate labor ends." Enmons, supra, 410 U.S. at 401, 93 S.Ct. at 1010. Such acts of violence are left to state court prosecution.

In view of the fact that organizing and seeking recognition seem clearly legitimate union ends, appellant urges us, in effect, to find that his false declarations were material only to a grand jury investigation which could not have resulted in an indictment.

Enmons itself teaches, however, that some activity, even in a labor context, can violate the Hobbs Act:

. . . (T)he Hobbs Act has properly been held to reach instances where union officials threatened force or violence against an employer in order to obtain personal payoffs, and where unions used the proscribed means to exact 'wage' payments from employers in return for 'imposed, unwanted, superfluous and fictitious services' of workers. Enmons, supra, 410 U.S. at 400, 93 S.Ct. at 1010. (Footnotes omitted.)

In other words, violence joined with illegitimate objectives may result in a Hobbs Act violation.

A recent Fifth Circuit case illustrates the point. In United States v. Quinn, 514 F.2d 1250 (5th Cir. 1975), a clergyman who was authorized to represent certain employees in a labor dispute was convicted of a Hobbs Act violation for receiving payments from an employer in return for calling off a picket line. The Fifth Circuit affirmed the conviction, even though conceding as to one count of the indictment that:

1. A bona fide labor dispute existed between American Discount and its employees;

2. The attainment of higher pay was, on the part of the employees, a legitimate labor...