U.S. v. Paschall

• Decision Date: 30 August 1985
• Docket Number: No. 84-5166,84-5166
• Citation: 772 F.2d 68
• Parties: UNITED STATES of America, Appellee, v. Edward Hume PASCHALL and William Albert Ricker, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 68

772 F.2d 68

UNITED STATES of America, Appellee, v. Edward Hume PASCHALL and William Albert Ricker, Appellants.

No. 84-5166.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 11, 1985.

Decided Aug. 30, 1985.

Harold K. Bennett, Asheville, N.C. (Bennett, Kelly & Cagle, P.A., Asheville, N.C., on brief), for appellants.

Kenneth P. Andresen, Chief Asst. U.S. Atty., Charlotte, N.C. (Charles R. Brewer, U.S. Atty., Asheville, N.C., on brief), for appellee.

Before RUSSELL and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

The defendants were convicted of two violations of the Hobbs Act, 18 U.S.C.A. Sec. 1951, when they were employees of the North Carolina Department of Transportation. Count 1 charged them with having accepted for themselves and their wives, an expense-free weekend vacation at Hilton Head Island, occupying a villa owned by a highway contractor. The indictment charged that the benefit was received under color of official right. A hunting vacation in Texas provided by another highway contractor was the subject of the second count. There was a third count charging Paschall with having received a six months old 1980 Cadillac automobile as a gift from a highway contractor. Paschall claimed, however, that he purchased that automobile for cash, paid in three installments, and, though he had no receipts, the jury was unable to agree upon a verdict. The third count was later dismissed.

On their appeals from their convictions, the principal contention of the defendants is that they were passive recipients of gratuities, and that neither had sought the benefits nor misused his office. It is contended, in effect, that a coercive demand that the benefit be given or actual misconduct in office, other than receipt of the benefit, is an essential element of any Hobbs Act offense.

We disagree and affirm the convictions.

I.

In the late 1970's the North Carolina Department of Transportation was engaged in the construction of a new highway from Weaverville to Marshall. The project was divided into three sections designated Parts A, B and C. Part B was let in November 1978 to Asheville Contracting Company whose president was Baxter Taylor. Part C was let in March 1979 to Phillips & Jordan, Inc. of Knoxville, Tennessee and Robbinsville, North Carolina.

The defendant, Paschall, was the Department's resident engineer charged with immediate supervision of the work on behalf of the Department. The defendant, Ricker, was the Chief Inspector under Paschall on Part B, though his only work on Part C is said to have been concerned with the construction of a bridge with which Phillips & Jordan had no involvement.

The testimony showed, indeed the defendants admitted, that they and their wives were flown on a Friday from Asheville, North Carolina to Hilton Head Island, South Carolina in a company plane owned by Asheville Contracting Company and were returned in the company plane to Asheville on the following Monday. While at Hilton Head, they occupied a villa upon which the name of Baxter Taylor was displayed and which was owned either by him or by Asheville Contracting.

The defendants supplied a gloss to this. They said that on their own they had planned a golfing weekend at Sea Pines Plantation on Hilton Head, and that somehow Mr. Taylor learned of it and insisted they use the company plane which was already scheduled to make a round trip from Asheville to Hilton Head on both Friday and Monday. He also offered them the use of his villa if the four visitors would clean it up in preparation for Taylor's own use of it beginning on Monday and if they would see that an automobile that Taylor kept at the Hilton Head airport was operational. They found that the transmission of the automobile was frozen until they added transmission fluid, and they cleaned up the villa.

There was also testimony that the villa rented for $750 a week.

According to Paschall, he received an invitation from Phillips & Jordan to go on a hunting excursion to Texas, and to bring two other state employees with him. He testified that he had first declined but accepted when told that their going would not cost Phillips & Jordan anything since they had already planned to fly some of their own people down. Paschall and Ricker were flown on a corporate plane from Asheville to Knoxville, where they were transferred to a much larger plane and, with representatives of Phillips & Jordan, were flown to Texas. They were housed in a lodge, and Phillips & Jordan provided food, drink, hunting equipment, guns and ammunition.

Rather oddly, Ricker testified that in neither instance did he know who his benefactor was until he saw Mr. Taylor's name at the villa on Hilton Head and until he recognized some of Phillips & Jordan's people in Knoxville. He had not thought to inquire of his friend Paschall.

While the indictment and, largely, the trial thus focused on the two excursions to Hilton Head and to Texas, there was evidence of other trips at the expense of Asheville Contracting and Phillips & Jordan. There was testimony that the excursion to Hilton Head, using Taylor's villa, was an annual event, and there were trips to such things as football games, entirely at the expense of the contractors.

For the benefit of the jury, the prosecutor offered testimony of the motivation of Phillips & Jordan in extending such favors. A representative from that company testified at some length that state engineers and inspectors were required to interpret and enforce specifications of the contract. Things could go smoothly for the contractor when the responsible state official was reasonable and fair, but he could create difficulties when his interpretations of the requirements were rigid and technical. Moreover, the computation of periodic payments was based upon the estimates of such people, and low estimates resulting in underpayment in early phases of the project could create financial difficulties for the contractor. For such reasons, they felt in need of the goodwill of such people and the maintenance of friendly relations with them. Phillips & Jordan were new to highway construction work in North Carolina and were fearful that they might encounter unfair treatment.

II.

The Hobbs Act proscribes robbery or extortion which obstructs, delays or affects commerce or the movement of any article in commerce. It defines the term extortion to mean "the obtaining of property from another, with his consent, induced by the wrongful use of actual or threatened force, violence, or fear, or under color of official right."

The meaning of "induced ... under color of official right" is the question in this case.

It has been held that inducement by a public official, in the sense that he overtly solicited the payment, is not an essential element of the offense. United States v. Hedman, 630 F.2d 1184, 1995 (7th Cir.1980); United States v. Jannotti, 673 F.2d 578, 595 (3rd Cir.1982). Nor is it necessary for the government to prove as a part of its case that the public official misused his office in the sense that he granted some benefit or advantage to his benefactor to which the benefactor was not entitled. United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir.1975); United States v. Scacchetti, 668 F.2d 643, 648 (2d Cir.1982); United States v. Kuta, 518 F.2d 947, 950 (7th Cir.1975). It is enough that the benefactor transfers something of significant value to the public official with the expectation that the public official will extend to him some benefit or refrain from some harmful action, and the public official accepts the thing of significant value knowing that it is being transferred to him because of his office.

The jury in this case was instructed consistently with that principle. The district court emphasized that the thing must be of significant value, which the jury must have understood to mean to be of such value as to be calculated to influence the official's conduct. If the thing was of significant value, the jury was told that it might convict if it found that it was paid and received with the expectation on the part of the payer that it would influence the public official's conduct and with the knowledge on the part of the public official that it was paid to him with that expectation.

III.

The primary contention on appeal is that the instructions were erroneous. The contention is that the defendants "passively" received proffered free trips without ever having affirmatively sought them, and that the contractors had not received from them any advantage to which the contractors were not entitled. In short, they contend that, in order to make out a violation of the statute, the payment must have been made at the behest of the public official, or the public official abused his office in the sense that he granted some advantage to the payer to which the payer was not entitled.

It is true, indeed, that in some of the cases holding that inducement is not an essential element of the offense, there was a misuse of the public office in the sense that that term is used by the appellants, while in some of the cases holding that misuse of the public office is not an essential element of the offense the payment was invited by the public official.

The senses in which the appellants use the relevant terms, however, are simply too narrow.

That there must be inducement springs directly from the statutory definition of extortion, but "induced ... under color of official right" should not be artificially construed to mean that the public official must have demanded or suggested it. When the public official invites the payment, it is, of course, inducement, but some public offices, by their very...