Callanan v. United States, 15139-15143.

• Decision Date: 05 July 1955
• Docket Number: No. 15139-15143.,15139-15143.
• Citation: 223 F.2d 171
• Parties: Lawrence CALLANAN, Appellant, v. UNITED STATES of America, Appellee. 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. R. M. SECOR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

223 F.2d 171 (1955)

Lawrence CALLANAN, Appellant, v. UNITED STATES of America, Appellee.

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.

R. M. SECOR, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15139-15143.

United States Court of Appeals Eighth Circuit.

June 3, 1955.

Rehearing Denied July 5, 1955.

COPYRIGHT MATERIAL OMITTED

Thurman Arnold, Washington, D. C., and Morris A. Shenker, St. Louis, Mo. (Sidney M. Glazer, Mark M. Hennelly, Harry H. Craig, Wiley, Craig & Armbuster, St. Louis, Mo., Philip A. Foley, William J. Hough, Clayton, Mo., and Arnold, Fortas & Porter, Washington, D. C., were with them on the brief), for appellants.

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

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

VAN OOSTERHOUT, Circuit Judge.

The appellants, Callanan, Bianchi, Thompson, Poster, and Secor, who were defendants below and will hereinafter be designated as defendants, appeal from conviction, judgment and sentence upon an indictment in two counts charging each of them with conspiracy to extort and the substantive offense of extortion, the indictment being based upon Title 18, section 1951, U.S.C., known as the Hobbs Act or the Anti-Racketeering Act. The extortion charged was obtaining $28,000 from the Burden Construction Company, paid by reason of Burden's fear of economic loss. The Burden Construction Company was engaged in several pipe line construction contracts in Missouri, which the indictment alleges involved interstate commerce. Defendants were labor representatives of various crafts supplying labor to the construction project.

Defendants in their brief set out in 15 divisions the reasons why they contend they are entitled to a reversal. As rearranged and summarized, the errors claimed are:

1. Overruling of motion of each defendant for acquittal.

2. Failure to give defendants' requested instruction as to application of section 6 of the Norris-LaGuardia Act, 29 U.S.C.A. § 106.

3. Refusal to give requested instructions concerning difference between Anti-Racketeering Act and Taft-Hartley Act, 29 U.S.C.A. § 141 et seq.

4. Overruling of defendants' contention that the Anti-Racketeering Act is invalid for the reason that the extortion definition is too indefinite.

5. Overruling of defendants' various motions for transfer and continuance.

6. Improper admission of Government's evidence.

7. Wrongful exclusion of defendants' evidence.

8. Refusal to give requested instructions and error in instructions given.

9. Overruling motions for a new trial based on unauthorized communications between a deputy marshal and jurors.

We shall first consider defendants' contention that their motions for judgment of acquittal made at the close of the evidence should have been sustained.

We have recently considered many of the problems arising under the Hobbs Act. Hulahan v. United States, 8 Cir., 214 F.2d 441; Bianchi v. United States, 8 Cir., 219 F.2d 182, certiorari denied 75 S.Ct. 604. In the cases just cited we have answered many of the contentions raised by the defendants on these appeals. There is ample evidence in the record to support a finding that commerce was obstructed and affected. In the Bianchi case we rejected the defendants' contention that the Taft-Hartley Act modified the Hobbs Act so as to make the later Act inapplicable to labor representatives. In the Bianchi case we also held that "fear" as used in the extortion definition of the Hobbs Act would include fear of economic loss.

The defendants urge that they are entitled to an acquittal because the record shows no previous labor trouble attributable to the defendants upon which Burden could base his claim of fear. As to this, the Government in its brief states:

"* * * There are two answers to this. The first is one which we believe it is of the highest importance to mention early in the discussion of this case. That is, that ultimately the issue in these cases is not so much the cause of the victim\'s fear, as it is whether or not defendants played upon that fear, in other words, made use of that fear to extort money or property. The Act with which we are concerned 18 U.S.C. § 1951, commonly known as the Hobbs Act, defines extortion as `the wrongful use of force, violence or fear.\' The issues determinative of guilt are whether the victim was fearful, whether that fear was reasonable, and whether the defendants made use of that fear."

The Government's contention appears to be sound. Extortion is defined by Title 18, section 1951(b) (2), as follows:

"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 * * *."

In the Bianchi case we held that the word "wrongful", as used in the foregoing definition, means an illegal act, that is an act which violates the criminal laws of the United States or any State or Territory. In Nick v. United States, 8 Cir., 122 F.2d 660, at page 671, we said:

"* * * The gist of the unlawful act is extortion. Extortion involves a state of mind as an element of an offense under the Act. Unless there is some form of compulsion (either physical or fear) there is no crime under this Act. * * * It was, therefore, essential to show that such payment was under such compulsion. The existence of this compulsion might be proved in several ways but one proper way is to show the state of mind under which the committee acted. * * *"

In United States v. Sutter, 7 Cir., 160 F. 2d 754, at page 756, Judge Minton, now Justice Minton, quotes with approval the following definition of extortion:

"Extortion is defined by Webster as the `* * * act or practice of taking or obtaining anything from a person by illegal use of fear, whether by force, threats, or any other undue exercise of power * * *.\' Webster\'s New International Dictionary, Second Edition, Unabridged (1942)."

In United States v. Compagna, 2 Cir., 146 F.2d 524, at page 529, in discussing the admissibility of evidence to show the fear in the minds of the victims, the court, although finding that no direct threats of violence were made and that there was no evidence that any of the defendants had been involved in previous strikes, goes on to hold that in any event the admission of evidence of the victims' fears was not prejudicial, saying:

"* * * The victims\' fears originated from acquaintance with the general disorders and violence which had accompanied other strikes. As such, it was part of what everybody knows, and I cannot see how it could have prejudiced the accused with the jury. Indeed it was entirely proper for the jury to infer that the accused expected to play upon precisely such fears, when Bioff threatened to call strikes."

It appears to us that the offense of extortion under the Hobbs Act has been committed if the defendants have illegally created fear in their victim, which fear has induced the victim to part with his money or property. If the fear is created in the victim for the purpose of extorting money or property, the offense is present whether the defendants are responsible for any past difficulties in the way of prior illegal strikes or unfair labor practices which may have created the fear, or whether the fear may have been created by what might have happened to others in similar cases. As above stated, in the Compagna case, there is no indication that the fear complained of was created by any illegal action of the defendants prior to the extortion. We approved the language hereinabove quoted from the Compagna case in the Bianchi case. The Anti-Racketeering Act does not curtail any legitimate labor activities. The court on this issue properly instructed the jury as follows:

"The anti-racketeering statute under which the charges are based has no reference or bearing on action by a labor organization leader, honestly acting and representing members of his organization. It has reference to and bears on interference with interstate commerce by the compulsory payment of money extorted by a labor leader for his own individual enrichment. The act clearly is protective to labor organizations, and labor members, and their membership, as it is to employers."

If fear was created in the victim's mind, if such fear was a reasonable one, and if the defendants by making use of that fear extorted money or property, the foundation for guilt is established. In the Bianchi and Hulahan cases there were express threats that if the money was not paid labor difficulties would follow. In this case we find no evidence of a direct threat. Burden's testimony is that he was invited to lunch by Callanan, which invitation he accepted, and that at such private luncheon at which no others were present the following conversation was had:

"I related to Callanan that we had sustained terrific losses on the Platte line. * * * And that something drastic had to be done, if we were going to complete the other Sinclair line without greater loss. * * * And I told him that the stewards would have to be working stewards, and that just a whole lot more progress would have to be made. That there had been so much trouble up there, that we were fearful of two or three things: First, loss financially; second, was danger to our men; third, damage to our property. I told Callanan that this would all have to be changed.

"Callanan asked me then how much money we had in this, how much — would I estimate we were going to make on this job. I told Callanan that that would be hard to answer, so many things depends on something like that, and he said, `Well would there be a cent a foot in that\' for their press. I told him that according to the — although I did not have

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