McIntosh v. United States, 18597

• Decision Date: 13 November 1967
• Docket Number: No. 18597,18598.,18597
• Citation: 385 F.2d 274
• Parties: William R. McINTOSH, Appellant, v. UNITED STATES of America, Appellee. Joe Dale WILSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

385 F.2d 274 (1967)

William R. McINTOSH, Appellant, v. UNITED STATES of America, Appellee.

Joe Dale WILSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18597, 18598.

United States Court of Appeals Eighth Circuit.

November 13, 1967.

David E. Blanton, of Blanton, Blanton & Rice, Sikeston, Mo., for appellants.

Robert M. Ornstein, Atty., Dept. of Justice, Washington, D. C., for appellee, Fred M. Vinson, Jr., Asst. Atty. Gen., Edward T. Joyce, Atty., Dept. of Justice, Washington, D. C., on the briefs.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

MATTHES, Circuit Judge.

William R. McIntosh and Joe Dale Wilson have appealed from judgments of conviction entered upon a jury verdict finding them guilty of violating 18 U.S.C. § 1952 (1961). Count III of a three count indictment, the only one on which appellants were convicted, charged in substance that they and one Walter Richardson, Jr.¹ in violation of Section 1952(a) (2) used a facility of interstate commerce, a telephone, with intent to commit a crime of violence to further the unlawful activity of extortion, "said unlawful activity being in violation of the laws of the State of Missouri, Section 560.130 * * *." The indictment further alleged that these three individuals either placed or caused to be placed a long distance telephone call from Sikeston, Missouri to Memphis, Tennessee, and demanded of one William Tanner $5,000.00 for the release of his brother, Henry Tanner, and that they performed or caused to be performed various acts facilitating the perpetration of their extortion scheme.

There is no dispute as to the pertinent facts giving rise to the prosecution. The appellants did not testify and offered only one piece of documentary evidence.

On April 23, 1965 Walter Richardson, Jr. placed a long distance telephone call to Henry Tanner in Memphis, Tennessee. Pursuant to the conversation he had with Richardson, Tanner and a friend, Ralph deVelasco, traveled by automobile to Sikeston, Missouri where they met Richardson and the appellants at the latter's place of business. After Tanner had arrived, Richardson announced that he and the appellants had set a trap for Tanner. At this point McIntosh brutally assaulted Tanner, while Richardson fiendishly fired a shotgun over the head of Tanner. Richardson contended that Tanner owed them $5,000 which they intended to get that night or kill him. Wilson made a telephone call to William Tanner, Henry's brother, in Tennessee. Henry conversed with his brother, and in substance asked him to raise $5,000.00 to secure his release. Wilson interrupted this conversation and stated to William Tanner that he would be informed "where to deliver the money later." After the conversation William Tanner called the F.B.I. and reported the incident.

Shortly after the telephone call Henry was forcibly escorted from the scene of the assault by Richardson and McIntosh. Later, after an apparent change of heart, appellants and Richardson released Tanner and deVelasco, and they returned to Memphis. Henry was hospitalized and treated for the injuries he sustained as the result of the assault and beating at the hands of Richardson and McIntosh. No money was ever paid to either the appellants or Richardson.

The principal question before this Court is whether the government, in order to sustain a conviction under Section 1952, must show that appellants have actually completed or consummated the underlying unlawful activity punishable under state law, that is, have procured money from the victim of their extortion scheme, or need only demonstrate that appellants have used interstate facilities with the intent to commit a crime of violence in furtherance of their scheme to extort money, and thereafter have engaged in conduct designed to promote the unlawful activity.

Appellants filed timely motions to quash the indictment on the ground that it failed to charge an indictable offense under Section 1952. They now contend in a brief prepared by their trial counsel² that the court erred in denying their motions and in instructing the jury that it was not necessary that appellants have completed their extortion plot in order to be convicted under Section 1952. They premise their contention upon the ground that the indictment alleged only that appellants' unlawful activity violated Section 560.130 of the Missouri Statutes,³ and that extortion, in contrast to an attempt to extort, is a prerequisite for an offense under Section 560.130. They argue from this premise that the proscription of the Missouri Statute was not violated for the reason that no money was paid to bring about the release of Henry Tanner. Hence they submit that an essential element of the offense under Section 1952 is lacking and therefore their convictions cannot stand. For the reasons stated below we sustain the district court's action and affirm.

We take a different view of the prerequisites for an offense under Section 1952. That Section provides in pertinent part:

"(a) Whoever * * * uses any facility in interstate or foreign commerce * * * with intent to —

(1) * * *

(2) commit any crime of violence to further any unlawful activity; or

(3) * * *

and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

(b) As used in this section `unlawful activity\' means * * * (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States."

Considered in light of its plain meaning Section 1952(a) (2) makes it unlawful for any person to utilize any interstate facility, including the telephone, with the intent to commit any crime of violence which would further an unlawful activity, such as extortion, in violation of state law. The proscribed conduct is the use of interstate facilities with the requisite intent to promote some unlawful activity, rather than the commission of acts which may be in violation of the state law. The inclusion in the indictment of an allegation that the unlawful activity was in violation of state law does not mean, as appellants argue, that prosecution under Section 1952 must fail in the absence of proof that the unlawful objective (here extortion) was fully accomplished. Consummation of the state substantive offense is not the indispensable gravamen of a conviction under Section 1952. Reference to the state law is necessary only to identify the type of unlawful activity in which the accused was engaged. Indeed, the indictment would probably be subject to attack if it failed to allege the state crime the accused had intended to violate by means of an interstate facility.⁴

Appellants place considerable reliance upon Marshall v. United States, 355 F.2d 999 (9th Cir. 1966), cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966), to support their thesis that where the unlawful activity is extortion, money or property must be procured from the victim in order to sustain a conviction under Section 1952. Appellants assume that the extortion plot in Marshall was consummated and that money was in fact obtained. Although the Ninth Circuit in Marshall did not clearly delineate the facts relating to the unlawful conduct, we have satisfied ourselves by reference to the briefs filed therein that the facts are analogous, and that the defendants attempted to but did not accomplish their plan to extort money.⁵ We glean from the language of the Marshall opinion that although the "unlawful activity" of extortion must be one defined and proscribed by state law, it need not be an accomplished fact to sustain a conviction under Section 1952, so long as the other elements of the statute are alleged and proven.

One of the crucial questions in Marshall was whether subdivision (2) of Section 1952(b), which defines "unlawful activity" to include extortion, encompassed a single act of extortion as well as a continous course of extortion that had been accomplished or facilitated through interstate facilities. The Court concluded that Section 1952(b) (2) did apply "to the facts charged herein — travel with intent to carry on or facilitate an unlawful activity — to-wit: a single act of extortion." 355 F.2d at 1003. (Emphasis supplied.)

Other decisions, we believe, support our interpretation of Section 1952. In particular, United States v. Azar, 243 F.Supp. 345 (E.D. Mich.1964), although factually distinguishable, is apposite to the legal issue before us. In that case the defendants were charged under Section 1952 with transporting from one state to another "tip sheets" in connection with certain gambling activities. One of the main contentions for acquittal in behalf of the defendants was that the government had failed to prove that any of their actions constituted a violation of either the laws of the State of Michigan or of the United States. They argued that their distribution of "tip sheets" violated no Michigan Law and that none of their actions with respect to the "tip sheets" constituted "unlawful activity" within the meaning of Section 1952. In rejecting their contention Judge Talbot Smith stated:

"Defendants miss the thrust of the law Section 1952. * * * It is not required that the travel be in itself a criminal act, nor that the subsequent act be itself, unlawful, if it does in truth

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