U.S. v. Wright

• Decision Date: 18 August 1986
• Docket Number: No. 85-4208,85-4208
• Citation: 797 F.2d 245
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick H. WRIGHT, Jr, and William E. Armstrong, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 245

797 F.2d 245

55 USLW 2190

UNITED STATES of America, Plaintiff-Appellee, v. Patrick H. WRIGHT, Jr, and William E. Armstrong Defendants-Appellants.

No. 85-4208.

United States Court of Appeals Fifth Circuit.

Aug. 18, 1986.

George M. Strickler, Jr., New Orleans, La., Thomas W. Davenport, Jr., Lavalle B. Salomon, Monroe, La., for Wright.

Mack E. Barham, David B. Girard, New Orleans, La., for Armstrong.

D.H. Perkins, Jr., Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, JOHNSON and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Two attorneys appeal their convictions for violating the Hobbs Act, 18 U.S.C. Sec. 1951, by conspiring to extort and by extorting money from a law firm and its clients in exchange for not prosecuting drunken drivers in city court in Monroe, Louisiana. The appeal presents us with the question whether there was sufficient nexus between the alleged extortionate crimes and interstate commerce to support this federal prosecution. The defendants argue that their acts had only an attenuated impact on interstate commerce, an interference so remote as to amount to no effect at all. We hold, however, that the alleged extortionate conduct was shown at trial to have an impact on interstate commerce sufficient to support a finding that the interstate commerce element of a Hobbs Act violation was proved by the prosecution. We also hold that the evidence adduced at trial was sufficient to convict the defendants of both a conspiracy and extortionate conduct in violation of the Hobbs Act. We therefore affirm.

I.

The defendant Patrick Wright was City Attorney for Monroe, Louisiana. He hired the defendant William Armstrong as an assistant city attorney. Wright resigned in July 1980 to enter private practice, while Armstrong remained assistant city attorney until he was removed in March 1984. Between late 1980 and mid-1983, Armstrong was the only assistant city attorney handling traffic offenses.

Wright's private practice included personal injury, real estate, domestic relations, and defense of "driving while intoxicated" (DWI) cases. He defended a large number of DWI cases that were prosecuted by Armstrong. Some of these cases went to trial, some ended with a guilty plea, and some resulted in "DA's probation" for Wright's clients.

"DA's probation" is a practice common in Monroe City Court whereby the city agrees to defer prosecution on the condition that the defendant avoids further trouble. After one year of DA's probation, the charges are generally allowed to prescribe. The decision to use DA's probation is discretionary with the city attorney.

The convictions of Wright and Armstrong resulted from allegations involving six of Wright's clients: Burns, Hill, Gohn, Newman, Tallant and Mathieu. The conspiracy count was proved with evidence relating to all six cases, while the substantive counts were proved with evidence from only the Burns case. In each of the six cases, the defendant was arrested and charged with DWI, but no prosecution occurred.

The Hill case was "nol prossed" after the charges were deemed to have prescribed. The Gohn, Newman, Tallant, and Mathieu cases were either reset or continued without date certain under DA's probation, and no further action was taken on them. The Burns case, however, was more complicated. An arrest warrant was sworn out for Burns in December 1980, but by March 1982, having not been executed, it was recalled by Armstrong. Service was never successfully made on Burns, and Armstrong recalled the warrant, ostensibly because the DWI charges against Burns had prescribed under La.Code Crim.Proc. art. 578 (West 1981).

When Burns heard that there was a warrant outstanding for his arrest, he contacted Armstrong concerning his situation. In the course of their conversation, Armstrong suggested that Burns retain a lawyer to institute a civil action for injuries sustained by Burns in the accident. Armstrong recommended several attorneys, including Wright. Burns retained Wright to represent him in a civil action and signed a one-third contingent-fee contract with Wright. Burns' lawsuit was filed in May 1981, and was handled almost entirely by Jack Wright, Wright's young associate. After the court ruled on a motion in limine and admitted the results of a blood alcohol test showing that Burns had been legally intoxicated at the time of the accident, the case was settled in June 1982 for $35,000.

After the settlement was agreed upon, Wright told Jack Wright that Armstrong was to receive a referral fee from the Burns case of approximately one-third of the attorney's fee. When Jack Wright protested this arrangement, Wright spoke to Armstrong about the size of the fee, and the two of them agreed that Armstrong should take $3,000. Burns received approximately $21,000 after expenses, and Jack Wright with co-counsel shared the remainder.

Eventually some complaint was made (by whom it is unclear), and Patrick Wright and William Armstrong were indicted for having violated the Hobbs Act, 18 U.S.C. Sec. 1951, and for conspiring to violate the Act. All of the counts involved alleged extortion by the City Attorney's Office of Monroe, Louisiana, in connection with the prosecution of DWI cases in Monroe City Court. Both defendants were convicted in a bench trial on one count of conspiracy (Count IV), having waived their right to a trial by jury. Armstrong was additionally convicted on one count of a substantive violation, i.e., that under color of official right, he solicited and received from Wright $3,000 in return for preventing the DWI prosecution of Wright's client, Burns (Count V). Wright was convicted on one count of aiding and abetting Armstrong in the substantive violation (Count VI).

The district court denied the defense motions for arrest of judgment and for a new trial. Wright and Armstrong were each sentenced to serve two concurrent two-year terms. Both Wright and Armstrong have filed timely appeals.

II.

The first of the defendants' arguments on appeal is that the government has failed to establish that the extortion affected interstate commerce. By statutory definition, in order for the extortion to constitute a federal crime under the Hobbs Act, some connection must be established between the extortionate conduct itself and interstate commerce. 18 U.S.C. Sec. 1951(a). "The charge that interstate commerce is affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference." Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). ¹ The interstate commerce connection is determined on a case-by-case basis.

Although the government raises several theories on appeal, the district court, in its judgment of conviction, relied on only one theory when it found sufficient effect on interstate commerce. Crediting expert testimony that local failure to prosecute DWI cases encourages more drunken driving, which jeopardizes highway safety by causing more accidents, and thus interferes with interstate travel on interstate highways, the district court found that "the failure to prosecute DWI offenses in return for the payment of money adversely affected interstate commerce...." The defendants argue that this was error because the government did not prove that the acts alleged in the indictment had an impact or effect on interstate commerce. According to Wright and Armstrong, the government's theories on interstate commerce are based on speculation and are too attenuated to show a nexus between the criminal conduct and interstate commerce.

The Supreme Court has long recognized that the purpose of the Hobbs Act is to "use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence." Stirone, 316 U.S. at 215, 80 S.Ct. at 272. In addition, the Court has recognized that Congress intended to define as a federal crime conduct that it knew was already punishable under state law. United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1117, 55 L.Ed.2d 349 (1978). The legislative history indicates that Congress believed that the states had not been effectively prosecuting extortion that affected interstate commerce," and that the federal government had an obligation to do so." Id., 435 U.S. at 380, 98 S.Ct. at 1117; 91 Cong.Rec. 11848, 11904, 11911, 11920 (1945).

The law in this circuit seems pretty clear that the impact on interstate commerce need not be substantial to meet the statutory requirement. All that is required is that commerce be affected by the extortion "in any way or degree." United States v. Sander, 615 F.2d 215, 218 (5th Cir.1980); United States v. Summers, 598 F.2d 450, 454 (5th Cir.1979); United States v. Chiantese, 582 F.2d 974, 980 (5th Cir.1978); United States v. Amato, 495 F.2d 545, 548 (5th Cir.1974); United States v. Nakaladski, 481 F.2d 289, 298 (5th Cir.1973). See also United States v. Hyde, 448 F.2d 815, 836-37 (5th Cir.1971).

In the case before us, the district court relied on the testimony of a government witness, Robert Voas, qualified as an expert in the field of alcohol and highway safety. Mr. Voas testified that the consumption of alcohol is "a major, perhaps the major factor in causing highway accidents." His experience evaluating law enforcement techniques in the area of DWI led him to conclude that the more serious an automobile accident is, the more likely it is that a drinking driver is involved. Voas also testified that a person who has been arrested for DWI has a much greater chance of later being involved in a fatal accident than has a person with no DWI arrest or conviction record. It was Voas' opinion that the higher risk can be reduced either by treating the drinking driver or by suspending or revoking his driving privileges. Voas...