U.S. v. Lisinski, 83-1504

• Decision Date: 02 April 1984
• Docket Number: No. 83-1504,83-1504
• Citation: 728 F.2d 887
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dean J. LISINSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 887

728 F.2d 887

UNITED STATES of America, Plaintiff-Appellee, v. Dean J. LISINSKI, Defendant-Appellant.

No. 83-1504.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 28, 1983.

Decided Feb. 21, 1984.

Rehearing and Rehearing En Banc Denied April 2, 1984.

Thomas D. Decker, Thomas D. Decker & Assoc., Chicago, Ill., for defendant-appellant.

Victoria J. Meyers, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Defendant-Appellant Dean J. Lisinski appeals his conviction of two counts of extortion and one count of attempted extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (1976). Lisinski raises three issues for our consideration:

I) Whether the evidence adduced at trial was insufficient to sustain the extortion conviction;

II) Whether the evidence at trial impermissibly amended the indictment;

III) Whether the trial court abused its discretion in denying Lisinski's requests for the disclosure of grand jury material?

For the reasons stated below, we AFFIRM Lisinski's conviction on all counts.

Facts

In a four count indictment returned in September, 1982, Lisinski was charged with three counts of extortion and one count of attempted extortion by the wrongful use of fear of economic harm and under color of official right. The evidence at trial revealed that Louis Patras, the victim of Lisinski's extortionate demands, was the owner-operator of the William Tell II restaurant in Countryside, Illinois. In early 1980, the restaurant was in jeopardy of losing its liquor license because of an $82,000 Illinois sales tax liability. Because a liquor license was vital to the success of the restaurant, Patras contacted Lisinski, an acquaintance of his, for help. Lisinski worked for the Clerk of the Circuit Court of Cook County and had friends in the Illinois Liquor Control Commission and the Illinois Department of Revenue, the two agencies with whom Patras had to deal to retain his liquor license. Lisinski had previously told Patras that he had political influence and "... if you ever need anything from downtown, I will be able to help you."

On May 14, 1980, Lisinski accompanied Patras to a revocation hearing before the Liquor Control Commission and introduced Patras to its executive director, Jack Wallenda. Unbeknown to Patras, his liquor license was suspended that same day because of his substantial sales tax liability. On June 10, Lisinski took Patras once again to meet Wallenda. At that meeting, Wallenda told Lisinski and Patras that Patras' license had been "blocked." In Patras' presence, Lisinski told Wallenda to "unblock it." (R. 67-69). Wallenda did so and promptly issued Patras a new license. Several days later, Lisinski called Patras and demanded a thousand dollars "... to take care of some people." Patras paid Lisinski the money. This transaction formed the basis of Count I of the indictment of which Lisinski was found not guilty.

Patras continued to experience liquor license difficulties. On April 3, 1981, approximately 1 and 1/2 months before his liquor license was to expire, Patras received a phone call from Lisinski. Lisinski told Patras that it was urgent that he make a $1,000 payoff to Wallenda. Patras balked and said that he did not have the money. Within the hour, two acquaintances of Lisinski called Patras and urged him to make the payoff. Patras succumbed and borrowed as much as he could--$500--which he paid to Lisinski (the $500 which Patras borrowed was ultimately repaid from restaurant funds.) Lisinski told him that the payoff of $500, which formed the basis of Count II of the indictment, might or might not be enough.

Following Lisinski's second demand for money, Patras contacted the FBI and permitted them to tape his dealings with Lisinski. Two further demands for money to assist with Patras' liquor license problems occurred. On May 29, 1981, two days before Patras' liquor license was due to expire, Lisinski telephoned Patras and demanded payment of the $500 remaining from the April 3 payment. Patras, fearful that his license would be permitted to expire, paid the additional $500. On July 24, 1981, Lisinski met with Patras at the William Tell and arranged for a final payment of $3,000. The FBI supplied Patras with $3,000 and witnessed Lisinski accepting the money.

The indictment alleged three counts of extortion corresponding to the June, April and May demands for money. Count IV of the indictment alleged attempted extortion because the funds used were obtained from the FBI. After a bench trial, Lisinski was found not guilty of Count I because the extortionate demand was not made until after Lisinski had assisted Patras to reacquire his liquor license. Lisinski was found guilty on Counts II, III and IV and brings this appeal.

I

Whether the evidence is insufficient to sustain the extortion conviction?

a). Necessity of a Threat?

Lisinski contends that an indispensable element of extortion by wrongful use of fear of economic harm is a threat, whether direct or indirect. Lisinski argues that the evidence at trial showed no threat and that Patras' fear of economic harm was self-generated. The government argues, on the other hand, that no threat is necessary. The government suggests that extortion by wrongful use of fear of economic harm is established by showing that the defendant preyed upon or exploited the victim's fear of economic harm. We agree.

Our analysis commences with the statute. Mills v. United States, 713 F.2d 1249, 1251 (7th Cir.1983). The Hobbs Act 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.

(emphasis supplied) 18 U.S.C. Sec. 1951 (1976).

"The Hobbs Act ... is a broadly drawn statute. The cases construing the Act have repeatedly emphasized that the Congress, in passing the statute wanted to use all of the constitutional power it had to punish interference with interstate commerce by extortion, robbery or physical violence." United States v. Sander, 615 F.2d 215, 218 (5th Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), citing Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). This Circuit and others have long recognized that the term "fear" in the Hobbs Act includes fear of economic harm or loss. See United States v. Dale, 223 F.2d 181, 183 (7th Cir.1955) ("We conclude that 'fear' as defined in the extortion section of the Anti-Racketeering Act should be given its ordinary meaning and consequently 'fear' would include fear of economic loss."); United States v. Cusmano, 659 F.2d 714 (6th Cir.1981); United States v. Forszt, 655 F.2d 101 (7th Cir.1981); United States v. Gerald, 624 F.2d 1291 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981).

Lisinski cites to United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973) for the proposition that extortion by wrongful use of fear of economic harm requires a threat. Enmons involved a situation where striking union members used violent means to achieve legitimate labor ends. The Supreme Court, in finding no violation of the Hobbs Act, analysed the meaning of the word wrongful as used in the statute:

... The term "wrongful" which on the face of the statute modifies the use of each of the enumerated means of obtaining property--actual or threatened force, violence, or fear--would be superfluous if it only served to describe the means used.... Rather, "wrongful" has meaning in the Act only if it limits the statute's coverage to those instances where the obtaining of the property would itself be "wrongful" because the alleged extortionist has no lawful claim to that property.

(footnote omitted) 410 U.S. at 399-400, 93 S.Ct. at 1009-1010. Lisinski argues that since the Hobbs Act applies only to situations where both the defendant's ends and means are illegitimate, the wrongful use of fear requires a threat. Otherwise, concludes Lisinski, "... all entrepreneurs would be guilty if their services or products were designed to respond to a consumer fear."

Lisinski totally misreads Enmons. Enmons is simply authority for the proposition that since all means of obtaining property which involve actual or threatened force, violence or fear are wrongful, "wrongful" means that the statute applies only to situations where the extortionist has no legitimate claim to the property. Otherwise, the use of the word "wrongful" in the statute would be redundant. Enmons does not constitute authority that the wrongful use of fear requires a threat.

Case law amply refutes Lisinski's arguments that the wrongful use of fear requires a threat. Exploitation of, or preying upon, the victim's fear constitutes wrongful use of fear and satisfies the statute. In United States v. Crowley, 504 F.2d 992 (7th Cir.1974), the extortion victims were the owners of bowling lanes who paid off the defendant, a police officer, to protect their business. There, as here, the policeman was not responsible for the conditions which generated the victim's fear. But the policeman exploited that fear, and was convicted under the Hobbs Act:

It is important to note that it is unnecessary for the government to prove that defendant actually created the fear in the minds of his victims. Rather, as the...