U.S. v. Brantley, s. 84-5233

• Citation: 777 F.2d 159
• Decision Date: 07 November 1985
• Docket Number: Nos. 84-5233,84-5234 and 84-6674,s. 84-5233
• Parties: UNITED STATES of America, Appellee, v. Clifford BRANTLEY, Appellant. UNITED STATES of America, Appellee, v. Henry E. INGRAM, Jr., Appellant. UNITED STATES of America, Appellee, v. Clifford BRANTLEY and Henry E. Ingram, Jr., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 159

777 F.2d 159

54 USLW 2291

UNITED STATES of America, Appellee, v. Clifford BRANTLEY, Appellant.

UNITED STATES of America, Appellee, v. Henry E. INGRAM, Jr., Appellant.

UNITED STATES of America, Appellee, v. Clifford BRANTLEY and Henry E. Ingram, Jr., Appellants.

Nos. 84-5233, 84-5234 and 84-6674.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1985.

Decided Nov. 7, 1985.

Robert B. Wallace, Charleston, S.C., Glenn B. Hester (Paul E. Tinkler, Wallace & Wallace, Charleston, S.C., J. Robert Cooper, Law Offices of J. Robert Cooper, Atlanta, Ga., on brief) for appellant.

John McIntosh, Asst. U.S. Atty., Columbia, S.C. (Dale L. Dutremble, Asst. U.S. Atty., Henry Dargan McMaster, U.S. Atty., Columbia, S.C., John R. McCravy, III, Third Year Law Student on brief) for appellee.

Before HALL and MURNAGHAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

The defendants were convicted of extortion in violation of the Hobbs Act, and of conspiracy to commit extortion in violation of that statute. Since the only claimed actual effect upon interstate commerce was pretensive activity by FBI agents, we reverse the convictions of the substantive offenses but affirm the convictions on the conspiracy count.

I.

An FBI agent named Domine was sent from Cleveland, Ohio to investigate, in an undercover capacity, a report of corruption on the part of a state magistrate on Hilton Head Island, South Carolina. He pretended to be interested in opening and operating a gambling den, for which he would need some protection from law enforcement officials. He met the defendant Ingram who, among other things, owned and placed gambling devices known as poker machines. They discussed the possibility of Domine renting a vacant restaurant on Hilton Head Island and of insulating an illegal gambling operation from intrusion by law enforcement officials. It turned out that the vacant restaurant was unavailable on a short term basis, but Ingram, who had grown up in Jasper County, South Carolina and sometimes dabbled in real estate, told Domine of a vacant restaurant in Hardeeville, Jasper County, South Carolina, which he thought appropriate for Domine's purpose. Brantley, the sheriff of Jasper County, was a friend of Ingram's, and Ingram assured Domine that Brantley would protect the illegal gambling operation if paid $500 a month. Ingram also suggested that Domine give Brantley $200 during the first meeting to demonstrate his good intentions about later payments.

Domine and Ingram visited Brantley in his office in Ridgeland, the county seat of rural Jasper County. Domine explained his intention to rent the restaurant building and, once a month, bring in people from such cities as Cleveland, New York and Chicago for gambling at very high stakes. Brantley expressed approval of the proposal, though he insisted that local people not be involved. At the conclusion of the meeting, Ingram gave the sheriff $200 which Domine had provided for that purpose.

Domine rented the building on a monthly basis. Gambling tables and equipment were brought down from the FBI training academy in Quantico, Virginia and installed in the club. Thereafter, once a month for the next four months, six to eight FBI agents were assembled at the club. They gambled, but with money supplied by the FBI. They consumed alcoholic beverages that had been provided by the FBI, and they "paid" for their drinks with money furnished by the FBI. ^*

In each of those four months, Domine met with Sheriff Brantley. He told the sheriff that he was operating the gambling casino as he had planned and, each time, gave the sheriff $500. On more than one of those occasions, the sheriff stated that it was unnecessary for Domine to pay him anything, or that Domine owed him nothing, but he accepted the money on each occasion.

II.

Though what was done at the club was blatant sham, the government contends that it supplied the necessary effect upon commerce. The gambling equipment had been transported from Virginia. The whiskey had moved in interstate commerce for there is no licensed distillery in South Carolina. Some of the agents may have come from other states.

These, however, were not commercial transactions. The FBI transported its own gambling devices from Virginia to South Carolina, but they were not the subjects of commercial transactions. The whiskey had moved in interstate commerce, but the FBI made no commercial use of it. It simply provided the assembled agents with free drinks. If the FBI's use of the whiskey had been reasonably necessary or appropriate, its previous movement in interstate commerce may well have supplied the jurisdictional effect upon commerce, but such an effect may not be found in pretense and contrivance. If some of the assembled agents came from other states, that was of no moment. See Rewis v. United States, 401 U.S. 808, 811-12, 91 S.Ct. 1056, 1059-60, 28 L.Ed.2d 493 (1971). The fact is that nothing ever happened at the club except pretense.

One violates the Hobbs Act, 18 U.S.C.A. Sec. 1951, when he "obstructs, delays, or affects commerce ... [by] extortion," and, by definition, the commerce affected must be interstate commerce or commerce with or within the District of Columbia or a United States territory or possession. Id. at Sec. 1951(b)(3). The jurisdictional predicate may be satisfied though the impact upon commerce is small, and it may be shown by proof of probabilities without evidence that any particular commercial movements were affected. Thus, in United States v. Santoni, 585 F.2d 667 (4th Cir.1978), it appeared that the FBI had set up a corporation to solicit business cleaning public buildings in Baltimore, Maryland where corruption was suspected. The cleaning corporation actually received a contract to clean a public building, and, as required by the contract, it purchased and used a cleaning compound manufactured in Pennsylvania. It also leased and brought into the state scaffolding necessary for the work. Use of the cleaning compound and the scaffolding were held enough to satisfy the commerce requirement. Id. at 671.

In United States v. Spagnolo, 546 F.2d 1117 (4th Cir.1976), we held that an effect upon commerce could be proven by proof of probabilities. There, a co-owner of a construction firm had been forced at gunpoint to sell his half interest in the business. His removal as an officer of the business was held to have had such a probable effect on interstate commerce that the jurisdictional predicate was satisfied, though there was no attempt to prove that identified shipments in commerce were affected. Id. at 1119.

In those cases, however, there was a strong element of reality in the commercial aspect of the activity. In Santoni, the contract required the purchase and use of a cleaning compound manufactured in Pennsylvania, and the necessary scaffolding was actually procured out of state. In Spagnolo, it was highly probable that the withdrawal of the "financial source" of the construction company would affect commerce in countless ways, for the effect of the conduct of such a business on commerce varies with the volume and nature of the construction work. There is nothing in those cases, however, to suggest that the necessary commercial connection may be shown by producing a child of fantasy.

It may be enough that the parties intended to complete a transaction which would have affected commerce, though their intention was frustrated. In United States v. Staszcuk, 517 F.2d 53 (7th Cir.) (en banc ), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975), with the help of a bribe of a city councilman, a zoning change was procured to permit the erection and operation of an animal hospital. Later, after obtaining bids on the construction, the owner concluded that construction of an animal hospital was not feasible, and the land was put to a use permitted by the earlier zoning. It was held that it was enough that commerce would have been affected if the project had been carried through to conclusion as contemplated when the zoning change was effected. In that case, of course, there was nothing pretensive about the representation of the owner; he simply had underestimated his projected costs when he procured the zoning change. That case does not suggest that the requisite effect upon commerce may be found in pretense.

The Hobbs Act proscribes inchoate offenses as well as actual obstructions of commerce. When we come to the convictions on the conspiracy count, the perspective will not be the same, but we do not think the convictions of the substantive offenses may be sustained on the basis of the defendants' mistaken assumption that commerce would be affected. The defendants were the victims of false pretense, and the falsity induced the erroneous assumption. In those circumstances, what the defendants may have believed is too fragile a connection with commerce to supply the jurisdictional predicate for conviction upon the substantive charge of obstruction by extortionate means.

We are influenced by another consideration: that federal agents may not manufacture jurisdiction by contrived or pretensive means. In United States v. Archer, 486 F.2d 670 (2d Cir.1973), the Court of Appeals for the Second Circuit held that a violation of the Travel Act, 18 U.S.C.A. Sec. 1952, may not be shown when the jurisdictional predicate was an unnecessary interstate telephone call placed by one of the agents. The court held that when the...