722 F.2d 873 (1st Cir. 1983), 83-1082, United States v. Kelly

Docket Nº:83-1082.
Citation:722 F.2d 873
Party Name:UNITED STATES of America, Appellee, v. James A. KELLY, Jr., Defendant, Appellant.
Case Date:November 30, 1983
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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722 F.2d 873 (1st Cir. 1983)

UNITED STATES of America, Appellee,


James A. KELLY, Jr., Defendant, Appellant.

No. 83-1082.

United States Court of Appeals, First Circuit

November 30, 1983

Argued Sept. 7, 1983.

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John S. Leonard, Boston, Mass., by appointment of the Court, with whom Theodore E. Daiber and The McLaughlin Bros., Boston, Mass., were on brief, for defendant, appellant.

Amos Hugh Scott, Sp. Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., and Mark E. Robinson, Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN, Circuit Judge, FAIRCHILD, [*] Senior Circuit Judge, and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Defendant-appellant, James A. Kelly, Jr. appeals from a jury conviction on one count of extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. Appellant was charged in a one-count indictment with extortion induced under color of official right. The indictment alleges specific instances in which the appellant knowingly, willfully, and unlawfully affected interstate commerce by extorting money and other items of value from Masiello & Associates Architects, Inc. The indictment goes on to assert that in exchange for monetary enrichment as well as for travel, entertainment, and equipment, Kelly misused his office as Senator, and Chairman of the Massachusetts Senate Ways and Means Committee to influence "the award, supervision and continuation of contracts sought or held by Masiello & Associates Architects, Inc."

Kelly raises the following issues: (1) that there was a constructive amendment to the indictment; (2) that the district court erred in denying appellant's various motions to assuage alleged prejudicial publicity by a change of venue, a continuance, jury sequestration during trial, and jury sequestration during deliberations; (3) that the district court wrongly denied a motion for investigation and inquiry of jury bias and jury misconduct; and (4) that the court erred in denying appellant's motion for a new trial. Finding no error, we affirm.

Constructive Amendment of the Indictment

Turning to the issue of the constructive amendment to the indictment, we first look at the actual grand jury indictment of September 30, 1980. The one-count indictment charged Kelly under 18 U.S.C. Sec. 1951 (Hobbs Act) 1 and identified him as a Senator

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of the Commonwealth of Massachusetts and Chairman of the Ways and Means Committee of the Massachusetts Senate at all times during the 1970-1976 period covered in the indictment. Specifically, the indictment charged that Kelly committed extortion affecting interstate commerce by accepting money, travel, and equipment from Masiello & Associates in exchange for Kelly's favorably influencing Masiello & Associates contracts with the Commonwealth. The indictment charged that Kelly's actions were all done "under color of official right."

Appellant contends that the admission of testimony that he used actual threats against members of Masiello & Associates or caused them to fear retaliatory action is not proof of extortion "under color of official right," but rather, an element of extortion by "wrongful use of actual or threatened force, violence, or fear," a separate offense. Therefore, reasons the appellant, such evidence constructively amended the indictment, and furthermore, was more prejudicial than probative.

Appellant's brief is seductively persuasive on the constructive amendment theory. However, after careful analysis of the relevant case law, legislative history, and the record, we must reject his contention. The appellant's argument that the language of 18 U.S.C. Sec. 1951(b)(2) is disjunctive is correct: "The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." (Emphasis added.) We agree that Hobbs Act extortion indictments and prosecutions based on the "under the color of official right" prong need not include proof of "actual or threatened force, violence, or fear." See United States v. Williams, 621 F.2d 123, 124 (5th Cir.1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981) (eight circuits agree that "under color of official right" charge does not require proof of threats); United States v. Harding, 563 F.2d 299, 305 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1968) (Hobbs Act language is disjunctive); United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976) (statute is phrased in the disjunctive); United States v. Kenny, 462 F.2d 1205 (3d Cir.1972), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972) (seminal case, setting forth the proposition that "under color of official right" language is disjunctive).

To comprehend this disjunctive interpretation it is imperative to view in historical perspective the origin of the bifurcated nature of the statute's language. Because the legislative history is silent on the congressional intent in promulgating the disjunctive language, 2 the meaning of the language is therefore interpreted through the development of case law. The Hobbs Act's two branches represent, on one hand, the early common law definition of extortion, and, on the other hand, the present day extension of the statute to individuals who are not public officials. Blackstone described the crime of extortion as "an abuse of public justice, which consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value that is not due him, or more than is due, or

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before it is due." 4 W. Blackstone, Commentaries 140-41. See United States v. Harding, 563 F.2d 299, 306 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); United States v. Butler, 618 F.2d 411, 418 (6th Cir.1980),cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980). United States v. Kenny, 462 F.2d 1205 (3d Cir.1972), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972), often regarded as the case that placed the official imprimatur on the disjunctive reading of the statute states: 3

[P]rivate persons may violate the statute by use of fear and public officials may violate the act by use of fear, persons holding public office may also violate the statute by a wrongful taking under color of official right.

Id. at 1229.

To prevail on the theory that there has been a constructive amendment to the indictment, appellant must show that his fifth and sixth amendment rights have been infringed. The fifth amendment requires that a defendant be tried only on a charge made by the grand jury. 4 Stirone v. United States, 361 U.S. 212, 216-17, 219, 80 S.Ct. 270, 272-73, 274, 4 L.Ed.2d 252 (relying heavily on Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), defendant may not be convicted on a charge not made by the grand jury); Ex parte Bain, 121 U.S. 1, 5-6, 7 S.Ct. 781, 783-84, 30 L.Ed. 849 (1887) (fifth amendment mandates that indictment may not be amended without resubmission to grand jury); United States v. Ylda, 653 F.2d 912, 914 (5th Cir.1981) ("The misconstruction of an indictment is reversible error if it is possible that the defendant was tried and convicted for a crime other than that alleged in the indictment."); United States v. Trotta, 525 F.2d 1096, 1099 (2d Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976) (defendant may be tried only on grand jury's indictment and no other). The sixth amendment, working in tandem with the fifth amendment, requires that the defendant "be informed of the nature and cause of the accusation." U.S. Const. amend. VI.

These two constitutional provisions require that allegations and proof mirror each other. The rationale is clear: no person should be denied the right to thoroughly prepare his or her defense, and should not be subject to "another prosecution for the same offense." Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1934). See United States v. Gonzalez, 661...

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