870 F.2d 769 (1st Cir. 1989), 87-1832, United States v. Sturm

Docket Nº:87-1832.
Citation:870 F.2d 769
Party Name:UNITED STATES of America, Appellee, v. John Andrew STURM, Defendant, Appellant.
Case Date:March 22, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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870 F.2d 769 (1st Cir. 1989)

UNITED STATES of America, Appellee,

v.

John Andrew STURM, Defendant, Appellant.

No. 87-1832.

United States Court of Appeals, First Circuit

March 22, 1989

        James B. Dolan, by Appointment of the Court, with whom Badger, Sullivan, Kelley & Cole was on brief for defendant, appellant.

        David L. Douglass, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., was on brief, for appellee.

        Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and ATKINS, [*] Senior District Judge.

        SUBSTITUTE OPINION

        TORRUELLA, Circuit Judge.

        The defendant John Sturm appeals from Judge Woodlock's denial of his Motion for a Judgment of Acquittal after a jury verdict finding him guilty of attempted extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951, and of attempted bank robbery in violation of the bank theft statute, 18 U.S.C. Sec. 2113(a). See United States v. Sturm, 671 F.Supp. 79 (D.Mass.1987). Sturm requests this court either to enter a judgment of acquittal or, in the alternative, to vacate his convictions and remand for a new trial.

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We affirm the district court's denial of Sturm's Motion for a Judgment of Acquittal, but vacate both convictions and remand for a new trial.

       I.

        When evaluating the denial of a Motion for Judgment of Acquittal, we view the facts in the light most favorable to the government. See United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987). In May 1985, Sturm obtained a $110,000 loan from the Worcester County Institution for Savings (WCIS) by signing a promissory note and granting a purchase money mortgage in connection with his acquisition of an Aero Commander aircraft for $214,000. In addition to the aircraft, the loan was secured by other related collateral, including the plane's logbooks. Logbooks record the repair and maintenance history of a plane and are required by the Federal Aviation Administration for all commercial aircraft. A plan without logbooks ordinarily can be used only for noncommercial purposes, and thus has a lower value.

        Sturm fell behind on his loan payments in April and May 1986, but eliminated the arrears when WCIS requested him to do so. WCIS then learned that the People's Bank in Connecticut was considering filing a mechanic's lien against the Aero Commander because of problems in connection with their own loan to Sturm for purchase of another plane. On the basis of this information, WCIS repossessed defendant's Aero Commander in August. The act of repossession did not include the logbooks.

        WCIS held an auction to sell the plane on September 26, 1986. Because the auction did not produce what the Bank considered to be the fair market price for the aircraft, WCIS took ownership of the plane. Bank officials learned that the low valuation was directly related to the unavailability of the plane's logbooks. After the auction, Steven Tonken, a WCIS officer, asked Sturm for the logbooks. The defendant replied, "I don't know where the books are right now but I can get them for you for a price." Trial Transcript, Vol. I, at 70. Later, he added that he "could be persuaded to recall or remember where the logbooks were for a fee." Id. Tonken refused to pay Sturm a fee for the logbooks.

        Sturm called WCIS officers inquiring about the status of the aircraft on October 29 and November 26. On each occasion, he offered to help find the logbooks if he were paid a fee. When the officers explained that it was in Sturm's interest to have the plane sold at the highest possible price, Sturm disagreed, stating that he was not worried about residual indebtedness because he was going to file for bankruptcy. WCIS contacted the Federal Bureau of Investigation after the November 26 call. All subsequent conversations were recorded.

        On December 2, Sturm spoke to Phillip Zoppo, another WCIS official. He told Zoppo that he could not find the logbooks but wanted to make some money selling airplanes for WCIS at a commission. Sturm then pointed out that the logbooks would increase the value of the aircraft by more than $45,000, and therefore that the logbooks themselves were worth about $20,000. He added that he could find the books "if the price is right." Government Exhibit 5-A at 9. Zoppo asked Sturm why WCIS should pay to recover its own property. Sturm replied, "I understand the books should go with the airplane and everything, but in fact they're not." Government Exhibit 6-A at 2. In a subsequent conversation later the same day, Zoppo informed him that senior management had acceded to his demands; WCIS would pay him $20,000 for the logbooks.

        Two days later, on December 4, Sturm called Zoppo and informed him that he had the logbooks. The next day, two FBI agents posing as WCIS officers met with Sturm. He said he had gone to the Cayman Islands to retrieve the logbooks, and offered to exchange them for $20,000 in cash. The agents reiterated that if he left with the $20,000, WCIS would be paying for property which it rightfully owned. Sturm replied, "You keep bringing that up. You don't need to." Government Exhibit 9-A at 6. One of the agents mentioned to Sturm that the transaction reminded him of

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kidnapping, to which Sturm responded, "I know." Id. at 15. Sturm was arrested in the WCIS parking lot after he showed the agents the logbooks in the trunk of his car.

       II.

        The Hobbs Act, 18 U.S.C. Sec. 1951 (1982), states in pertinent part:

(a) Whoever in any way or degree ... affects commerce or the movement of any article ... in commerce, by robbery or extortion or attempts or conspires to do so, ... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

(b) As used in this section

* * *

(2) 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.

        The defendant claims that his conviction for attempted extortion should be reversed for any one of four reasons. First, Congress did not intend the Hobbs Act to apply to actions based on a creditor's fear of nonrepayment. Second, Sturm could not be guilty of extortion because he had a claim of right to the logbooks. Third, even if Sturm did not actually have a claim of right to the logbooks, he cannot be guilty of extortion because he thought he had a claim of right to the logbooks. Fourth, the trial judge failed to instruct the jury that extortion under the Hobbs Act is a crime of specific intent, requiring proof that the defendant intended to violate the statute.

A.

        Sturm's first claim is that Congress did not intend the Hobbs Act to apply to actions based on a creditor's fear of nonrepayment. He supports this claim by pointing to the absence of any mention of such actions in both the statute's legislative history and in cases interpreting the statute. He argues that extending the statute to include such actions would interfere with state sovereignty and squander federal judicial resources.

        We find Sturm's arguments unpersuasive. The statute provides a precise definition of extortion, and there is persuasive evidence that Congress intended "to make punishable all conduct falling within the reach of the statutory language." United States v. Culbert, 435 U.S. 371, 377, 98 S.Ct. 1112, 1116, 55 L.Ed.2d 349 (1978) (holding that proof of racketeering was not a separate prerequisite to criminal liability under the Hobbs Act). The purpose of the statute was "to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion as defined in the bill." H.R.Rep. No. 238, 79th Cong., 1st Sess., 9 (1945) (emphasis added) (quoted in Culbert, 435 U.S. at 377-78, 98 S.Ct. at 1115-16). The statute manifests Congressional intent "to use all the constitutional power [it had] to punish interference with interstate commerce by extortion, robbery, or physical violence." Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). We recognize that ambiguity in the scope of criminal statutes should be resolved "in favor of lenity," Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), but "here Congress has conveyed its purpose clearly, and we decline to manufacture ambiguity where none exists," Culbert, 435 U.S. at 379, 98 S.Ct. at 1116. In light of the plain language of the Act and the intent of its framers, the absence in the legislative history and prior case law of any specific mention of an action based on a creditor's fear of nonrepayment is less than compelling.

        Sturm's federalism arguments meet a similar fate. With respect to the enactment of the Hobbs Act, the Supreme Court has concluded that

there is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law. The legislative debates are replete with statements that the conduct punishable under the Hobbs Act was already punishable under state robbery and extortion statutes. Those who opposed

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the act argued that it was a grave interference with the rights of states. Congress apparently believed, however, that the states had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so.

        Culbert, 435 U.S. at 379-80, 98 S.Ct. at 1116-17 (citations omitted). In addition, following the lead of the Supreme Court, other appellate courts have refused to exempt particular industries that have traditionally been regulated by the states, such as liquor, see United States v. Gill, 490 F.2d 233, 237 (7th Cir.1973), cert. denied, 417 U.S. 968, 94...

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