U.S. v. Thordarson

• Decision Date: 20 May 1981
• Docket Number: No. 80-1239,80-1239
• Citation: 646 F.2d 1323
• Parties: 107 L.R.R.M. (BNA) 2505, 91 Lab.Cas. P 12,800 UNITED STATES of America, Plaintiff-Appellant, v. Sten THORDARSON, Martin Fry, Craig Dunbar, Martin Salgado, and Charles Wise, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1323

646 F.2d 1323

107 L.R.R.M. (BNA) 2505, 91 Lab.Cas. P 12,800

UNITED STATES of America, Plaintiff-Appellant, v. Sten THORDARSON, Martin Fry, Craig Dunbar, Martin Salgado, and Charles Wise, Defendants-Appellees.

No. 80-1239.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 17, 1980.

Decided May 20, 1981.

Charles C. Wehner, Sp. Atty., Los Angeles, Cal., for plaintiff-appellant.

Jan Lawrence Handzlik, Stilz, Boyd, Levine & Handzlik, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, FERGUSON and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

The government appeals from a district court order dismissing a ten-count indictment charging defendants with violating 18 U.S.C. §§ 1962(d), 1952, and 844(i), and 29 U.S.C. § 501(c). This court has jurisdiction under 18 U.S.C. § 3731. We reverse.

I. Facts

In 1978, the employees of the Redman Moving and Storage Company of Thousand Oaks, California, elected Teamsters Local 186 as their bargaining agent. When Redman refused to recognize the union, Local 186, aided by Teamsters, Local 389, called a strike against the company. During the time of the strike, Redman trucks in California, Arizona and Connecticut were damaged or destroyed.

In November of 1979, a ten-count indictment was filed in the United States District Court for the Central District of California, alleging that the defendants all officers or employees of Local 186 or Local 389 conspired to destroy Redman trucks in an effort to coerce Redman into recognizing the Teamsters.

The indictment charges defendants with the use of explosives to damage vehicles used in interstate commerce in violation of 18 U.S.C. § 844(i) ¹ (Counts 2 and 3); travel in interstate commerce to commit arson in violation of the Travel Act, 18 U.S.C. § 1952 ² (Counts 4 and 5); conversion of union funds in violation of 29 U.S.C. § 501(c) ³ (Counts 6 through 10); and conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1962(d) ⁴ (Count 1). ⁵ The alleged pattern of racketeering included the conduct charged substantively in Counts 2 through 10.

The district court dismissed all ten counts of the indictment. The RICO, Travel Act and explosives charges (Counts 1-5) were dismissed on the authority of United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973), which the district court read as "preclud(ing) federal prosecution for violent activity which occurs during the course of a legitimate labor dispute" absent specific authorization from Congress. United States v. Thordarson, 487 F.Supp. 991, 995 (C.D.Cal.1980). The conversion of union funds charges were dismissed for failure to allege essential elements of the offense.

II. Counts 1 through 5: United States v. Enmons

In Enmons, the defendants were striking union members charged with using violence to obtain higher wages and other employment benefits in violation of the Hobbs Act, 18 U.S.C. § 1951. The issue was whether acts of violence committed during a lawful strike for the purpose of inducing an employer's agreement to legitimate collective bargaining demands constituted extortion, defined by the Hobbs Act as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear." 18 U.S.C. § 1951(b)(2). ⁶

In interpreting the statute, Justice Stewart, writing for the majority, focused on the word "wrongful," and reasoned that because it would be redundant to speak of "wrongful violence" or "wrongful force," Congress must have intended "wrongful" to limit the statute's coverage "to those instances where the obtaining of the property would itself be 'wrongful' because the extortionist has no lawful claim to the property." 410 U.S. at 400, 93 S.Ct. at 1009-1010. Accordingly, the Court held that violence to achieve legitimate union objectives is not within the Hobbs Act's prohibition because there is no "wrongful" taking of the employer's property when union members receive wages and benefits in exchange for genuine services bargained for by the employer.

The Court found support in the legislative history of the Hobbs Act for its interpretation of "extortion". The predecessor of the Act, § 2 of the Anti-Racketeering Act of 1934, 48 Stat. 979, proscribed the exaction of valuable consideration by force, violence or coercion, but expressly excepted "the payment of wages by a bona-fide employer to a bona-fide employee." In enacting the Hobbs Act, Congress eliminated this express wage exception in response to the Supreme Court's decision in United States v. Local 807, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004 (1942). In that case, the Court had held that the wage exception immunized from prosecution under the Anti-Racketeering Act New York City truck drivers who "by violence and threats exacted payments for themselves from out-of-town truckers in return for the unwanted and superfluous service of driving out-of- town trucks to and from the city." Enmons, 410 U.S. at 402, 93 S.Ct. at 1010. The Enmons Court, however, despite Congress' repeal of the express wage exception in enacting the Hobbs Act, read the legislative history as evidencing an intent to preserve an exemption for violence in pursuit of legitimate collective bargaining objectives. Id. at 404-07, 93 S.Ct. at 1012-1013. In particular, the Court pointed to assurances given during the floor debate that the Hobbs Act would not interfere with legitimate labor activity and that a simple assault during a strike would not become a federal crime under the Act. Id. ⁷

The Court noted that the broad interpretation of extortion advanced by the government would reach "all overtly coercive conduct in the course of an economic strike (with the result that) (t)he worker who threw a punch on a picket line or the striker who deflated the tires on his employer's truck would be subject to a Hobbs Act prosecution and the possibility of twenty years' imprisonment and a $10,000 fine." Id. at 410, 93 S.Ct. at 1015. In rejecting this reading of the statute, the Court concluded:

(I)t would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business of policing the orderly conduct of strikes. Neither the language of the Hobbs Act nor its legislative history can justify the conclusion that Congress intended to work such an extraordinary change in federal labor law or such an unprecedented incursion into the criminal jurisdiction of the States.

Id. at 411, 93 S.Ct. at 1015.

The defendants contend that the effect of Enmons is to place violence during the course of legitimate strike activity beyond the reach of all federal criminal laws. We cannot agree. There is no basis in the Court's decision or its underlying rationale for the creation of an "Enmons doctrine" of immunity applicable to all federal criminal statutes. ⁸ We read Enmons as holding only that the use of violence to secure legitimate collective bargaining objectives is beyond the reach of the Hobbs Act.

The Court's holding in Enmons turned on its reading of the specific language of § 1951 particularly the term "wrongful" in the definition of extortion and its reading of the Hobbs Act's singular legislative history. By contrast, the defendants have not cited, and we have not found, anything in the statutory language or the legislative history of the Travel Act, RICO or § 844 of Title 18 which indicates that Congress intended to exclude from the reach of those statutes violence in the pursuit of legitimate union objectives. Indeed, our reading of those statutes suggests that Congress intended no such exemption. ⁹

The Travel Act, on its face, applies to "(w)hoever travels in interstate commerce or uses any facility in interstate commerce with intent to promote, manage, establish, carry on arson in violation of the laws of the State in which committed or of the United States." 18 U.S.C. § 1952. Section 844(i) of Title 18 covers "(w)hoever maliciously damages or destroys, or attempts to damage or destroy, by means of explosive, any vehicle used in interstate commerce or in any activity affecting interstate commerce." RICO provides that it shall be unlawful to conspire "to conduct or participate in the conduct (of an) enterprise's affairs through a pattern of racketeering activity " 18 U.S.C. § 1962(c), (d). Racketeering activity includes "any act or threat involving arson which is chargeable under state law and punishable by imprisonment for more than one year; any act which is indictable under title 18, United States Code Section 1952 (and) any act which is indictable under Title 29, United States Code, Section 501(c)." 18 U.S.C. § 1961(1).

These statutes are written in general terms and make criminal the prescribed conduct without regard to the status or ultimate objectives of the person engaging in it. ¹⁰ See, e. g., United States v. Roselli, 432 F.2d 879, 885 (9th Cir. 1970), cert. denied 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971) (Travel Act); United States v. Perrin, 580 F.2d 730, 733 (5th Cir. 1978), aff'd, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (Travel Act); United States v. Campanale, 518 F.2d 352, 363-64 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976) (RICO); United States v. Field, 432 F.Supp. 55, 57-58 (S.D.N.Y.1977), aff'd, 578 F.2d 1371 (2d Cir. 1978) (RICO). We consider it improbable that Congress, having determined that arson and the willful misuse of explosives constituted a sufficiently grave threat to persons and property to warrant the imposition of federal criminal sanctions, intended to make the imposition of such sanctions depend upon whether the person who willfully causes the...