U.S. v. Meyers
| Decision Date | 21 May 1976 |
| Docket Number | No. 75--1743,75--1743 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Charles MEYERS and Jack Scoville, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Henry A. Schwarz, U.S. Atty., Michael J. Nester, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellant.
Bruce N. Cook, E. St. Louis, Ill., James J. Gomric, Belleville, Ill., for defendants-appellees.
Before CUMMINGS, Circuit Judge, BAUER, Circuit Judge, and PERRY, Senior District Judge. *
Defendants Charles Meyers and Jack Scoville were indicted by the Grand Jury for the Eastern District of Illinois upon a charge that they entered into a conspiracy to affect commerce by extortion in violation of the Hobbs Act, 18 United States Code, Section 1951. 1 The defendants moved to dismiss the indictment and the District Court granted the motion. On appeal the Government asks this court to remand the case and direct the District Court to reinstate the indictment. We reverse and remand.
The indictment charged:
1. At times pertinent hereto defendants CHARLES MEYERS and JACK SCOVILLE were trustees of the East Side Levee and Sanitary District, East St. Louis, Illinois.
2. At other times pertinent hereto defendants CHARLES MEYERS and JACK SCOVILLE were candidates for trusteeship and trustees-elect for the East Side Levee and Sanitary District.
3. At times pertinent hereto, the trustees of the East Side Levee and Sanitary District occupied a position of public trust where through the exercise of their judgment, contracts were to be awarded to contractors and suppliers doing business with the East Side Levee and Sanitary District, East St. Louis, Illinois.
4. From on or about the month of September, 1972 to on or about January, 1973, in the Eastern District of Illinois, the defendants CHARLES MEYERS and JACK SCOVILLE and others did conspire to affect commerce by obtaining property of another, with his consent, induced under color of official right, that is to say CHARLES MEYERS and JACK SCOVILLE with others did conspire to obtain in excess of $6,000, individually, that the defendants were not entitled to, in consideration for their future official acts as trustees for the East Side Levee and Sanitary District so that the defendants CHARLES MEYERS and JACK SCOVILLE would suspend their independent and unbiased judgment on the merits when considering the awarding of contracts, all in violation of Title 18, United States Code, Section 1951.
In the defendants' motions to dismiss the indictment, they contended that they held no public offices at the time of the acts complained of, that they were merely candidates for office at that time, and that not being public officials at the time complained of they had not violated Title 18, Section 1951 and could not be prosecuted thereunder. The Government contended that while defendants were not public officials at the time of the payment of $6000.00 to each of them, defendants thereafter were elected and did become public officials; that they kept said sums of money after becoming public officials; that they conspired to do so and that said conspiracy continued after they became public officials; and that they were therefore liable for violation of the provisions of 18 U.S.C § 1951. For the purpose of defendants' Motions to Dismiss, counsel for the parties entered into a stipulation to the following facts:
1. The defendants, MEYERS and SCOVILLE, took office as Trustees of the East Side Levee and Sanitary District on December 6, 1972, at 10:00 A.M. Neither defendant was a public office holder prior to December, 1972. Defendants were candidates for said office as a result of a primary election in March, 1972 and the defendants were elected to said office on November 7, 1972.
2. A meeting between the defendants and the complaining witnesses occurred during the month of October, 1972 at which the indictment alleges a conspiracy was formed.
3. If money was paid to the defendants, it is alleged said payment occurred in October, 1972 before the defendants took office, and the defendants retained said money through May, 1973.
In the District Court's order granting the motion to dismiss, the District Court assumed that the stipulated facts precluded any conspiracy and dismissed the indictment, thereby depriving the Government of its right to present evidence supporting the charge of conspiracy.
The indictment charged that Meyers and Scoville and others during a period of time commencing in or about September, 1972, and terminating in or about January, 1973, did conspire to affect commerce by obtaining property (in excess of $6000) of another with his consent and induced under color of official right. As indicated in the indictment, the substance of the conspiratorial agreement was that Meyers and Scoville conspired to obtain money in excess of $6000, individually,--money to which they were not entitled,--in consideration for their future official acts as trustees for the East Side Levee and Sanitary District, so that they would suspend their independent and unbiased judgment on the merits when considering the awarding of contracts.
In the initial paragraph of its order granting the motions to dismiss, 2 the District Court stated:
This case presents the novel and interesting question whether candidates for political office can obtain property (i.e. $6000) from another with that person's consent induced under color of official right within the meaning of 18 U.S.C. § 1951. (Footnote omitted.) 395 F.Supp. at 1068.
In the penultimate paragraph of its order, the District Court concluded that
. . . A mere candidate for public office can not obtain property from another with that person's consent induced under color of official right. 395 F.Supp. at 1070.
We respectfully suggest that the issue as formulated by the lower court misses the mark. What the court appears to have overlooked is that Meyers and Scoville were not charged with the substantive offense of extortion; they were charged with conspiracy. Thus the question is not 'whether candidates for political office can obtain property (i.e. $6000) from another with that person's consent induced under color of official right within the meaning of18 U.S.C. § 1951'; rather, it is whether, within the meaning of the Hobbs Act, it is a crime for candidates for political office to conspire to affect commerce by extortion induced under color of official right during a time frame beginning before the election but not ending until after the candidates have obtained public office. As we said above, Meyers and Scoville were not charged with the substantive offense of extortion. They were charged with conspiracy to obtain property under color of official right. We agree with the Government that the indictment did not charge that they conspired 'under color of official right.' Rather, they were charged with conspiracy to obtain property 'under color of official right.' In essence, however, Meyers and Scoville urge this court to hold that the statutory phrase 'under color of official right' modifies the word 'conspires' rather than the words 'obtaining of property from another'. This would be an unreasonable interpretation.
Both the phrase 'under color of official right' and the phrase 'obtaining of property from another' appear in the same subparagraph,--subparagraph (2) of paragraph (b) of § 1951,--and the phrase 'obtaining of property from another' precedes the phrase 'under color of official right'. On the other hand, the only reference to conspiracy occurs in a different and parallel paragraph,--paragraph (a) of § 1951,--where the word 'conspires' appears. Thus, in accordance with established canons of statutory construction, 3 we can only construe § 1951 to mean that the phrase 'under color of official right' refers, relates back to, and modifies the phrase 'otaining of property of another', so that § 1951 proscribes, not the act of conspiracy under color of official right, but the act of obtaining property under color of official right.
More important, however, is the consideration of the Government's contention that even if the phrase 'under color of official right' in § 1951(b)(2) were held to modify the word 'conspires' in § 1951(a), the alleged conspiracy existed even after Meyers and Scoville took office. The Government alleges that a conspiracy was entered into at a time when Meyers and Scoville were candidates for public office, that the alleged conspiracy did not end until at least May of 1973, at which time Meyers and Scoville had been public officials for several months, and that through May of 1973, Meyers and Scoville allegedly retained the money they had earlier obtained from the contractors.
What Meyers, Scoville, and the court below overlooked is the crucial factor of continuity in the crime of conspiracy. It is well settled that a criminal conspiracy is a continuing crime in that the conspiracy continues until the goal for which it was formed has been attained. See, e.g., United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1026 (1974), cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). Here the object of the conspiracy was the suspension of unbiased judgment in consideration for money received. The object of the conspiracy was not the suspension of the unbiased judgment of a private individual, but was the...
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