U.S. v. Cerilli, 78-2105

• Decision Date: 29 June 1979
• Docket Number: No. 78-2107,No. 78-2105,No. 78-2106,Nos. 78-2105,No. 78-2439,78-2105,78-2106,78-2107,78-2439,s. 78-2105
• Citation: 603 F.2d 415
• Parties: UNITED STATES of America v. Egidio CERILLI, Appellant inMaylan Yackovich, Appellant inJohn Shurina, Appellant inRalph Buffone, Appellant into 78-2107 and 78-2439.
• Court: U.S. Court of Appeals — Third Circuit

Page 415

603 F.2d 415

UNITED STATES of America v. Egidio CERILLI, Appellant in No. 78-2105 Maylan Yackovich, Appellant in No. 78-2106 John Shurina, Appellant in No. 78-2107 Ralph Buffone, Appellant in No. 78-2439.

Nos. 78-2105 to 78-2107 and 78-2439.

United States Court of Appeals Third Circuit.

Argued Feb. 13, 1979.

Decided June 29, 1979.

John Rogers Carroll (argued), Peter Goldberger, Carroll, Creamer, Carroll & Duffy, Philadelphia, Pa., for appellants Cerilli, Yackovich and Shurina.

William F. Manifesto, Manifesto, Doherty, Love & Talarico, P. C., Pittsburgh, Pa., for appellant Buffone.

Robert J. Cindrich, U. S. Atty., Daniel H. Shapira (argued), Faye M. Gardner, James J. West, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.

Before ALDISERT, ADAMS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

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 ¹ and for substantive violations of that Act. We will affirm the respective judgments of sentence.

I. FACTS

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. ²

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. ³ 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," ⁴ 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. ⁵

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. ⁶ 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...