U.S. v. Perrin

• Decision Date: 20 September 1978
• Docket Number: No. 76-3926,76-3926
• Citation: 580 F.2d 730
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent R. PERRIN, Jr., David L. Levy and Duffy J. LaFont, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 730

580 F.2d 730

UNITED STATES of America, Plaintiff-Appellee, v. Vincent R. PERRIN, Jr., David L. Levy and Duffy J. LaFont Jr., Defendants-Appellants.

No. 76-3926.

United States Court of Appeals, Fifth Circuit.

Sept. 20, 1978.

Perrin C. Butler, New Orleans, La., for Perrin.

John T. Mulvehill, FPD, Henry L. Klein, New Orleans, La., for LaFont.

Vincent R. Perrin, Jr., pro se.

Russell Schonekas, New Orleans, La. (Court-appointed), for Levy.

Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., K. Eric Gisleson, Deputy Chief, Public Integrity Section, Crim. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, THORNBERRY and RUBIN, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants, Vincent Perrin, Jr., David Levy, and Duffy LaFont, Jr., appeal from jury convictions for violating and conspiring to violate the Travel Act. ¹ The indictment charged that the appellants ² used interstate facilities with the intent to promote a commercial bribery scheme in violation of the laws of the State of Louisiana. ³ The proof adduced at trial demonstrated that appellant LaFont approached an employee of the Petty-Ray Geophysical Company, Roger Willis, and proposed that Willis steal from his employer certain seismic exploration charts. In return for the theft, Willis was to receive a percentage of the profits of a corporation specifically organized by appellants Levy and LaFont to exploit the stolen data. Appellant Perrin, a consulting geologist, was to interpret and analyze the data stolen from Petty-Ray.

All the defendants were found guilty of the conspiracy count. Perrin was also found guilty of two substantive counts charged in the indictment. Levy and LaFont were adjudged guilty of four substantive violations of the Act. Perrin received a one-year suspended sentence on each count. Defendants LaFont and Levy received a two-year sentence for each conviction. All of the sentences are to run concurrently. Since no appellant challenges the sufficiency of the evidence, it is unnecessary to burden this opinion with further factual details.

I.

In their first point of error, the appellants contend that commercial bribery as defined in 14 La.R.S. 73 is not "bribery" within the meaning of the Travel Act. While this is a question of first impression in this circuit, sister circuits have split over the issue. In United States v. Brecht, 540 F.2d 45 (2 Cir. 1976) the Second Circuit held that Congress did not intend to include commercial bribery within the meaning of "bribery" as used in the Travel Act. The Second Circuit noted that the legislative history of the Travel Act shows that Congress enacted the Travel Act "for the purpose of punishing interstate travel in aid of racketeering enterprises engaged in by organized crime." 540 F.2d at 49. Furthermore, the court observed that commercial bribery "is not a feature of organized crime and was not subsumed under the traditional offense of bribery." Id. at 50. In United States v. Pomponio, 511 F.2d 953 (4 Cir. 1975), Cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105, the Fourth Circuit reached the opposite conclusion. In Pomponio, the court held that the term "bribery" as used in the Travel Act includes commercial bribery. In reaching its conclusion, the Fourth Circuit noted that all bribery involves moral turpitude and that in United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 539, 21 L.Ed.2d 487 (1969), the Supreme Court cautioned against an unnaturally narrow reading of the terms of the Travel Act. 511 F.2d at 956-957.

For the reasons enumerated below, we believe that Pomponio is the correct reading of the Travel Act and the term "bribery" is a generic one not limited to its meaning in common law. First, we recognize as did the Second Circuit in Brecht, that the primary impetus in Congress for the Travel Act was the fight against organized crime. We cannot imply from this recognition, however, that only crimes "typically associated with the underworld" are the ones outlawed by the Travel Act. Such a limitation on the Travel Act would be tantamount to implying an additional element to the Act. ⁴ The Supreme Court has recently held that the Hobbs Act, 18 U.S.C. § 1951, does not contain a "racketeering" element. United States v. Culbert, --- U.S. ----, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978). Similarly, we find that it is not a requirement of the Travel Act that the underlying crime be one typically associated with the underworld or organized crime. We genuinely doubt our expertise to make such a determination. ⁵

Furthermore, common experience has taught us that organized crime does not limit bribery to bribery of public officials. Few will ever forget the most notorious commercial bribe in American history the bribing of the 1919 Chicago White Sox baseball team. In that sad episode, Abe Attell, supposedly an employee of the New York gambler, Arnold Rothstein, bribed eight players of the Chicago White Sox to throw the first and second games of the 1919 World Series to the Cincinnati Reds. Attell paid Eddie Cicotte, Oscar "Happy" Felsch, Chick Gandil, "Shoeless" Joe Jackson, Freddy McMullin, Charles "Swede" Risberg, George "Buck" Weaver, and Claude Williams about $70,000 for their participation in the scheme. ⁶ See E. Asinof, Eight Men Out (1963).

Second, it is clear that the Congress itself has not limited bribery concepts to common law definitions. In various places in the United States Code, Congress has outlawed bribery of public officials, ⁷ bribery of witnesses, ⁸ bribery of athletes, ⁹ bribery of bank officers, ¹⁰ bribery of agents and employees of carriers by rail, ¹¹ bribery of licensed classifiers of cotton or any grain, ¹² and bribery in connection with quiz shows. ¹³ Certainly, Congress, in writing the Travel Act, did not intend to outlaw only the bribery of public officials while simultaneously prohibiting the disregard of a fiduciary duty in a myriad of other circumstances.

Last, we agree with the Fourth Circuit that United States v. Nardello, supra, presents a ready parallel to the case at bar. In Nardello, the defendant was charged with a scheme involving the unlawful activity of blackmail in violation of the laws of Pennsylvania. 89 S.Ct. at 535. Since the Travel Act specifically outlaws only "extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States," Nardello argued that blackmail in violation of State law was not within the ambit of the Act. ¹⁴ Furthermore, Nardello urged that in using the term extortion, Congress intended only its common law meaning of acts by a public official. Id. at 538. In rejecting Nardello's arguments the Court stated:

In light of the scope of the congressional purpose we decline to give the term "extortion" an unnaturally narrow reading, cf. United States v. Fabrizio, 385 U.S. 263, 266-267, 87 S.Ct. 457, 459, 17 L.Ed.2d 351 (1966), and thus conclude that the acts for which appellees have been indicted fall within the generic term extortion as used in the Travel Act.

89 S.Ct. at 539.

Applying these concepts to the instant case, we believe that Congress intended the term "bribery" to be used in its generic sense and not be limited to its common law meaning. See also United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (refusing to define "stolen" as used in the Dyer Act, 18 U.S.C. § 2312, as meaning common law larceny). We believe it would be incongruous to read the term "extortion" in its generic sense while reading the term "bribery" in the literal common law sense. We therefore conclude that a Travel Act violation may be based on commercial bribery in violation of a state's commercial bribery statute.

II.

In their next point of error, the appellants contend that the Louisiana Commercial Bribery Statute is unconstitutional in that it is vague and overly broad. While the Louisiana Supreme Court has not passed on these arguments, other courts have unanimously rejected constitutional attacks on similar commercial bribery statutes. See State v. Brewer, 258 N.C. 533, 129 S.E.2d 262 (1963), App. dismissed, 375 U.S. 9, 84 S.Ct. 72, 11 L.Ed.2d 40 (1963); People v. Nankervis, 330 Mich. 17, 46 N.W.2d 592 (1951); People v. Davis, 33 N.Y.Cr.R. 460, 160 N.Y.S. 769 (1915); Annotation, Validity and Construction of Statutes Punishing Commercial Bribery, 1 A.L.R.3d 1350, 1357-59. Since the Louisiana Commercial Bribery Statute prohibits behavior about which "men of common intelligence" need not guess, the statute is not unconstitutionally vague. Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Furthermore, the instant scheme was so far within the core meaning of the statute, we need not consider whether the statute is overly broad.

III.

The appellants contend that the interstate nexus supplied by their use of interstate facilities was isolated, minimal, inconsequential, and nonessential to the commercial bribery scheme and insufficient to establish jurisdiction under the Travel Act.

The indictment charged in Count Two that the appellants used interstate facilities to promote their commercial bribery scheme when Willis, on the instructions of Levy, LaFont, and Perrin, called Gravity Map Service in Richmond, Texas, in order to purchase corresponding gravity maps for the stolen seismic data. Gravity Map Service, sent appropriate order forms to Willis via interstate bus. Count Three of the indictment charged that David Levy made a second interstate phone call to Gravity Map Service in Texas for the purpose of ordering corresponding gravity maps. ¹⁵

The appellants point to United States v. Altobella, 442 F.2d...