Bianchi v. United States

• Citation: 219 F.2d 182
• Decision Date: 10 February 1955
• Docket Number: No. 15045-15047.,15045-15047.
• Parties: Carl BIANCHI, Appellant, v. UNITED STATES of America, Appellee. L. A. THOMPSON, Appellant, v. UNITED STATES of America, Appellee. William POSTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

219 F.2d 182 (1955)

Carl BIANCHI, Appellant, v. UNITED STATES of America, Appellee.

L. A. THOMPSON, Appellant, v. UNITED STATES of America, Appellee.

William POSTER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15045-15047.

United States Court of Appeals, Eighth Circuit.

February 10, 1955.

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Morris A. Shenker and Sidney M. Glazer, St. Louis, Mo. (Morris A. Shenker and Mark M. Hennelly, St. Louis, Mo., for appellant Bianchi, Harry H. Craig, St. Louis, Mo., for appellant Thompson, and Philip A. Foley and William Hough, Clayton, Mo., for appellant Poster, were on the brief), for appellants.

Forrest Boecker, Sp. Asst. to the U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., and Tom DeWolfe, Sp. Asst. to the Atty. Gen., were with him on the brief), for appellee.

Before SANBORN, WOODROUGH, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

These are appeals by defendants, Bianchi, Thompson, and Poster, from conviction on two counts of an indictment and judgments and sentences imposed thereon. The appellants will be referred to herein as defendants, and unless otherwise indicated the defendants shall include the three defendants above named. The charges were based on section 1951, Title 18, United States Code, which is known as the Hobbs Act and the AntiRacketeering Act. This statute, so far as material, provides:

"(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section 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.

"(3) The term `commerce\' means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction."

Count I of the indictment charges defendants with conspiring to obstruct interstate commerce by extortion, and Count II charges the substantive offense of obstructing commerce by extortion. The extortion charged was that the defendants obtained $15,312 for their personal use and profit from the Trojan Construction Company engaged in a project in interstate commerce "by threatening physical violence to the person of the said Felix Johnson and upon the properties of the said `corporation' and by using their aforesaid respective union capacities in a wrongful, arbitrary, unreasonable and oppressive manner to create industrial strife and unrest on the aforesaid pipe line projects by refusing to permit the union workmen engaged and to be engaged on said pipe line projects and who were under the respective union jurisdiction of the said defendants to begin and continue their work duties, among other things, unless and until the said `corporation' should pay the defendants the aforesaid money."

The record is voluminous. Some facts are disputed. In determining the sufficiency of the evidence, this court must, upon defendants' appeals, view the evidence in the light most favorable to the Government, and give the Government the benefit of all inferences which can reasonably be drawn from the evidence. If there is evidence to support the verdict, we are not concerned with the credibility of the witnesses. Hulahan v. United States, 8 Cir., 214 F.2d 441. The facts will be briefly summarized, giving the Government the benefit of the foregoing rule.

The indictment charges and the evidence establishes that Bianchi was labor representative of the Operating Engineers, Poster was labor representative of the Laborers, and Thompson was labor representative of the Teamsters, for the St. Louis area. All defendants met representatives of the Trojan Company at a St. Louis hotel on August 1, 1950, and complained about said company moving into their territory without consulting them as business agents for their respective unions. The representatives of the company explained that it had a national agreement with the unions, and that its employees had union certification, and that under the national agreement it was permitted to come into the area. Defendants stated that national agreements meant nothing to them, and insisted that local labor be used, Thompson further stating that his union was not a party to the national agreement. Defendants had another meeting with the company officials on August 8, at which time the work on the company's project had been stopped. No progress was being made in the negotiations. Bianchi and Thompson went into the bedroom, and shortly thereafter called in Johnson, Trojan's representative, for a private conference, and stated to him that they were not getting anywhere in settling the labor dispute, and that they would fix it up so that the work could be resumed and the job could be completed for the payment to them of three cents a foot for the pipe that Trojan was removing. Johnson asked time to take this proposition up with his company. The following day Thompson and Bianchi had further talks with Johnson who advised them that the company didn't like the arrangement, but would make the payments demanded. Discussion followed as to the method of payment, and it was agreed that the payments would be made in the form of rental for fictitious equipment which would be neither furnished nor used. Some time later Bianchi and Poster called on Johnson to inquire about the progress being made in paying the equipment rentals. The equipment rentals were paid as directed by the defendants. The defendants organized a company known as the Washington Equipment and Construction Company of which Poster was president, and Thompson, vice-president. The jury were warranted in finding that the defendants individually derived the benefit of the fictitious rentals. The testimony of the Trojan Company officers would support a conclusion that the payoff was made because of fear of economic loss, of injury to employees, and of damage to equipment. As to the defendants' testimony, it is summarized by the trial court in its ruling on defendants' motions for acquittal and for a new trial, as follows:

"Neither defendant took the stand in his own defense. Most of the one statement made and the prime effort of the defense presentation was devoted to showing labor relations between certain unions and the Trojan Company. Defendants patently sought to convert the trial into a labor dispute hearing. Because of this failure or refusal of defendants to meet the real issue, we find the matters presented on motion for new trial not plain in their relation to the issues submitted to the jury."

The evidence will be further developed hereinafter.

The defendants' brief sets out in 14 divisions the reasons why they feel this case should be reversed. We have rearranged and consolidated these divisions to some extent. The errors urged, which we will consider in the order listed, are as follows:

1. Overruling of motion for acquittal.

2. Overruling of motions for transfer and continuance.

3. Admission of evidence of fears of officers paying money.

4. Refusal to give requested instructions.

5. Refusal to submit violation of Taft-Hartley Act as included offense.

6. Error in instructions given.

7. Overruling of motions for mistrial and acquittal because of variance between indictment and proof.

8. Errors in limiting defendants' cross-examination and excluding testimony.

9. Invalidity of Anti-Racketeering statute for the reason that the extortion definition is too indefinite.

1. Defendants contend that the threats, if any, do not go beyond putting their victim in fear of financial loss, and that such type of fear is not within the scope of the Anti-Racketeering Act. They insist that for said Act to be applicable fear of physical violence or property damage must be present. The statute here involved is a revision of sections 420a-420e, Title 18, United States Code, 1940 Edition, which was in effect when some of the cases hereinafter referred to were decided. Subdivision (b) of section 420a is as follows:

"Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right * * *." 48 Stat. 979, 980.

Thus, the offense now labeled "extortion" was provided for in substantially the same terms in both the present Act and the one it replaced. The former law contained a provision that it did not apply to cases of payment of wages by a bona fide employer to a bona fide employee. The Supreme Court in United States v. Local 807, etc., 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004, held that the employment exception was applicable to members of a New York truck drivers union, whose bona fide offer of their services to outside truck owners entering the State was rejected and who attempted unsuccessfully by violent means to achieve the status of employees. Congress was dissatisfied with the result of this decision. Hearings were held, later resulting in the enactment found in 60 Stat. 420, which is substantially the same as the present law, 18 U.S.C. § 1951. The legislative changes are reviewed in United States v. Kemble, 3 Cir., 198 F.2d 889, 891. The court said:

"Beyond formal reorganization and improvements in language the principal change accomplished by the new bill was the elimination of the exception the effect of which had

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