U.S. v. Summers

• Decision Date: 09 July 1979
• Docket Number: No. 78-5351,78-5351
• Citation: 598 F.2d 450
• Parties: 4 Fed. R. Evid. Serv. 1146 UNITED STATES of America, Plaintiff-Appellee, v. Shafter W. SUMMERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 450

598 F.2d 450

4 Fed. R. Evid. Serv. 1146

UNITED STATES of America, Plaintiff-Appellee, v. Shafter W. SUMMERS, Defendant-Appellant.

No. 78-5351.

United States Court of Appeals, Fifth Circuit.

July 9, 1979.

Otto E. Simon, Mobile, Ala., John Patterson, Edmon L. Rinehart, Montgomery, Ala., for defendant-appellant.

Wm. A. Kimbrough, Jr., U. S. Atty., William Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

SIMPSON, Circuit Judge:

Defendant-appellant Shafter W. Summers was convicted of two counts ¹ of violating the Hobbs Act, 18 U.S.C. § 1951 (1976). He was sentenced to concurrent four-year confinement terms on each count, and was fined ten thousand dollars on each count. We find no merit in the various grounds assigned by appellant as reversible error and affirm.

I. FACTS

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we summarize the proof at trial as to each of the counts upon which appellant was convicted.

Count 2 Meador

Appellant Summers was a member of the City Council of the City of Prichard, Alabama, as well as Chairman of the City of Prichard Water and Sewer Board. At the same time, Alva B. Meador was engaged in the utility contracting business through his firm, Meador Contracting Company. Meador submitted a sealed bid on a water line construction project the City of Prichard was about to undertake. On April 12, 1976, all bids were opened; on April 26, 1976, Meador's firm was designated as the successful low bidder; on May 10, 1976, a formal contract was executed. Some time after the bids were opened but before the formal contract was executed, appellant Summers spoke with James D. McCrory, Assistant Superintendent of the City of Prichard Water and Sewer Board. Summers instructed McCrory to contact Meador and tell Meador that if he wanted to receive the contract on the water line construction project he would have to "come up with five percent of the total bid price". McCrory followed Summers' instructions, met with Meador, and informed him of the terms of Summers' demands. Meador agreed to pay; thereafter, the contract was executed. Meador subsequently met with McCrory on four occasions, at which meetings he gave McCrory cash payments of $5,000, $5,000, $5,000, and $3,260.82, respectively. McCrory then brought the cash obtained from Meador to Summers. With the exception of the last "payment", Summers kept all the money: Summers only kept half of Meador's last "payment", and gave the balance to McCrory.

Meador was never contacted directly by Summers with regard to these "payments", nor did he ever have any conversations with Summers about payment of money in return for being awarded the construction contract.

Count 3 Harris

Joseph Edward Harris was engaged in 1972 through 1976 in performing construction work (installation of storm drainage) for the City of Prichard, Alabama, through his firm J. E. Harris Company, Incorporated. Harris had several contracts with the city, each of which was awarded after Harris submitted the lowest bid of all contracting firms competing for these projects. After Harris commenced work on his first project for the City, for which the total contract price was $900,000, he was contacted by appellant Summers. Summers told Harris that he expected Harris to pay two percent of the contract price as work progressed. Harris agreed to do so, for he felt that city officials and inspectors would retard periodic payments for work completed if he did not accede to Summers' demands. ² Harris paid Summers the two percent payments in cash as they fell due. Due to inflation, Harris found it necessary in 1974 to seek a unit price increase on his contract with the city. Harris then met with appellant Summers and another city councilman. Summers informed Harris that he and the other councilman could help Harris obtain the increased unit prices in exchange for an increase in the payments to Summers from two to five percent of the contract price. Harris agreed, increased his cash payments to appellant Summers, and completed performance of his contract with the city.

II. HOBBS ACT EFFECT ON INTERSTATE COMMERCE

Appellant contends that the evidence adduced by the government at trial was insufficient to establish an essential element of a Hobbs Act violation an effect upon interstate commerce. Specifically, Summers raises two points of asserted error. First, he argues that the district court erred in denying his motions for judgment of acquittal on Counts 2 and 3 because there was insufficient evidence to establish that interstate commerce had been affected. Second, appellant claims that the district court erred in charging the jury that, as a matter of law, interstate commerce had been affected if the jury was convinced, beyond a reasonable doubt, that the underlying factual predicate for such a finding had been proven. Both positions are without merit.

A. Hobbs Act Jurisdiction

Appellant Summers was convicted of two counts of violating the Hobbs Act, 18 U.S.C. § 1951 (1976), which provides in pertinent part:

(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.

(3) The term "commerce" means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.

18 U.S.C. § 1951 (1976) (emphasis added).

This statute "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence." Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960); United States v. Chiantese, 582 F.2d 974, 980 (5th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979); United States v. Hyde, 448 F.2d 815, 837 (5th Cir. 1971), Cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972). Cases construing the Hobbs Act have repeatedly emphasized that the statute's plain terms outlaw interference with interstate commerce "in any way or degree". Stirone v. United States, 361 U.S. at 215, 80 S.Ct. at 272; United States v. Chiantese, 582 F.2d at 980; United States v. Amato, 495 F.2d 545, 548 (5th Cir.), Cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 286 (1974). All that is necessary is that the impact of the extortion affect interstate commerce to a Minimal degree. United States v. Nadaline, 471 F.2d 340, 343 (5th Cir.), Cert. denied,411 U.S. 951, 93 S.Ct. 1924, 36 L.Ed.2d 414 (1973); United States v. Hyde,448 F.2d at 837.

Viewing the evidence adduced at trial in the light most favorable to the government, Glasser v. United States, supra, we conclude that the district court did not err in denying appellant's motions for judgment of acquittal. We find that there was sufficient evidence of an effect on interstate commerce as required by the Hobbs Act. With respect to Count 2, Meador testified that some of the equipment used in performing his contract with the City of Prichard was manufactured outside the State of Alabama. He also testified that at the time he was performing this contract, his firm conducted business in the states of West Virginia, Kentucky, and Mississippi. With respect to Count 3, Harris testified that several pieces of heavy equipment, purchased specifically for use in performing his contract with the City of Prichard, were manufactured out-of-state. ³

Both Meador and Harris were sufficiently involved in interstate commerce to warrant Hobbs Act protection against extortion: failure to comply with appellant's extortionate demands might have resulted in a loss of Meador's or Harris' respective contracts with the city or might have significantly affected payments thereunder, with the possible result that future orders for new and replacement equipment would be affected. This minimal effect on interstate commerce falls within the broad language of the Hobbs Act. Cf. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (ready-mix concrete business' dependence upon shipments of sand from out-of-state sufficient for Hobbs Act jurisdiction); United States v. Chiantese, 582 F.2d 974 (5th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979) (parking lot operator's purchase of apparel for employees from out-of-state, purchase of gasoline for lot's automobiles with credit cards issued by out-of-state companies, purchase of insurance from out-of-state insurer, and parking of out-of-state automobiles in the lot on a continuing basis sufficient for Hobbs Act jurisdiction); United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), Cert. denied, 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970) (rubbish collector's surrender of right to solicit additional customers sufficient to invoke Hobbs Act jurisdiction where future out-of-state orders for trash receptacles for new customers were thereby curtailed). The cases on which appellant relies are...