United States v. Brooklier
| Decision Date | 13 June 1978 |
| Docket Number | No. CR 78-180-HP.,CR 78-180-HP. |
| Citation | 459 F. Supp. 476 |
| Parties | UNITED STATES of America, Plaintiff, v. Dominick Phillip BROOKLIER, et al., Defendants. |
| Court | U.S. District Court — Central District of California |
Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., John C. Gibbons, San Francisco, Cal., Dennis Schloss, Sp. Atty., U. S. Dept. of Justice, for plaintiff.
Anthony P. Brooklier, Marks & Brooklier, Beverly Hills, Cal., for Dominick Phillip Brooklier.
Donald Marks, Marks & Brooklier, Beverly Hills, Cal., for Samuel Orlando Sciortino.
Howard Weitzman, Weitzman & Fidler, Los Angeles, Cal., for Louis Tom Dragna.
Thomas Kontos, Los Angeles, Cal., for Michael Rizzitello.
Wiley Ramey, Encino, Cal., for Thomas Ricciardi.
Terry Amdur, Pasadena, Cal., for Jack Lo Cicero.
Dennis McDonald, Haywood, Cal., for Aladena T. Fratianno.
MEMORANDUM AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS COUNT IV OF THE INDICTMENT FILED APRIL 20, 1978
Defendants Dominick Brooklier and Samuel Sciortino move for dismissal of Count IV of the indictment. Their motions raise three related but distinct arguments. Defendants argue that (1) an actual or potential effect on commerce is a necessary element of an attempted violation of the Hobbs Act, 18 U.S.C. § 1951, and Count IV of the indictment is defective because it does not allege facts showing such an effect; (2) they cannot be found guilty of an attempted violation of the Hobbs Act because of the doctrine of legal impossibility; and (3) Congress lacks constitutional power to proscribe activities such as those alleged in Count IV of the indictment. These arguments will be considered separately.
According to the indictment, after demanding a "piece of the action" from Forex Co. and its operators, the defendants succeeded in obtaining $6,500 from the company through the use of actual and threatened force. Had Forex been a company actually engaged in interstate commerce, defendants probably would not have made this motion. In reality, Forex was "an undercover business established by agents of the Federal Bureau of Investigation and purported to deal in the sale of pornographic films to Mexico and South America." Para. 1(b) of Indictment. In oral argument, the government admitted that no actual effect on interstate commerce was caused by defendants' activities.
Section 1951 of Title 18, United States Code, states in part:
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 shall be guilty of an offense against the United States.
Count IV of the indictment does not charge the defendants with actually obstructing commerce through extortion, but charges only that they did "knowingly attempt to obstruct, delay and affect commerce . . by the wrongful use of actual and threatened force." (Emphasis added.) Since Forex was not actually involved in interstate commerce, defendants argue that they cannot be guilty of an attempted violation of § 1951.
The Language of the Hobbs Act and Extensive Case Law Show that an Attempted Violation of the Act does not Require an Actual Effect on Interstate Commerce.
The wording of § 1951 indicates that an attempt to obstruct commerce by extortion is an offense against the United States. In United States v. Rosa, 560 F.2d 149 (3d Cir.), cert. denied, sub nom. United States v. Sica, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977), defendant Sica was charged with attempted extortion under the Hobbs Act. To support his contention that the statute did not proscribe attempted extortion Sica introduced into evidence a letter from three expert grammarians who opined that although § 1951 makes illegal an attempt to obstruct interstate commerce by actual completed extortion, the statute does not make illegal an actual obstruction of commerce through attempted extortion.
Although the court in Rosa concluded, probably correctly, that the Hobbs Act did proscribe attempted extortion, the grammarians were correct in their opinion that § 1951 makes illegal an attempt to obstruct commerce through completed extortion, which is precisely what the indictment before this court alleges. The defendants, according to the indictment, did extort $6,500 from Forex. This extortion completed a plan that would have actually affected commerce but for a fact unknown to defendants, i. e., that Forex was a company not actually engaged in commerce. In substance, Count IV alleges that defendants attempted to affect commerce by means that constituted actual extortion. Under a literal reading of the statute, such an allegation, if proved, constitutes a violation of § 1951.1
Case law on attempts under the Hobbs Act also makes it clear that the Act may be violated even if no actual interference with interstate commerce results from the violation. In United States v. Staszcuk, 517 F.2d 53 (7th Cir.), en banc, cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975), Staszcuk extorted $3,000 from one Allen in exchange for Staszcuk's non-opposition to a proposed zoning change permitting the construction of a hospital, a project in which Allen was financially interested. Although the zoning change was approved, the hospital was never built. The court stated: "Therefore, there is no evidence that either the zoning change or the payment had any effect whatsoever, either favorable or unfavorable, on interstate commerce." Id. at 55. Despite this conclusion, the court in Staszcuk held that the defendant's conviction for an attempted violation of the Hobbs Act was proper. The Ninth Circuit agrees with the Seventh Circuit's position that an actual effect on interstate commerce is not required for an attempted Hobbs Act violation. In United States v. Phillips, 577 F.2d 495 at 501 (9th Cir. 1978), the Ninth Circuit cited Staszcuk for the proposition that in a prosecution for an attempted Hobbs Act violation, the "effect on interstate commerce need be only probable or potential, not actual."
The defendants argue that in Staszcuk, unlike the case before this court, there was a reasonable probability that interstate commerce would be affected by the extortionate acts. The court in Staszcuk did use this analysis, stating: "Jurisdiction in the particular case is satisfied by showing a realistic probability that an extortionate transaction will have some effect on interstate commerce." 517 F.2d at 60. But Staszcuk did not consider a factual situation analogous to the one presented in this case. It is noteworthy that in Staszcuk, the court concluded that even a potential effect on interstate commerce was sufficient to establish jurisdiction.
In view of the statutory language, which proscribes an attempt to obstruct commerce by extortion, and the cases interpreting § 1951, which have not required an actual effect on interstate commerce for an attempted violation of that section, the court concludes that the indictment properly alleges an attempted violation of the Hobbs Act.
The defendants argue that they cannot be found guilty of an attempted violation of the Hobbs Act because of legal impossibility. Legal impossibility is said to exist whenever the intended acts, even if successfully completed by a defendant, would not constitute a crime under the applicable substantive law. Factual impossibility, on the other hand, refers to those situations in which a circumstance unknown to the defendant renders the consummation of the intended criminal conduct physically impossible. It is generally held that while legal impossibility is a defense to a charge of attempt, factual impossibility is not. See generally United States v. Frazier, 560 F.2d 884, 888 (8th Cir. 1977); United States v. Heng Awkak Roman, 356 F.Supp. 434 (S.D. N.Y.1973), aff'd 484 F.2d 1271 (2d Cir. 1973), cert. denied 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974); W. Lafave & A. Scott, Handbook on Criminal Law 438-45 (2d ed. 1972). It is not always easy, however, to classify a given situation as constituting legal as opposed to factual impossibility.
In raising their impossibility defense, the defendants primarily rely on United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973). In Berrigan, the defendants were convicted of attempted violations of 18 U.S.C. § 1791, which prohibits the smuggling into or out of a federal prison any item without the knowledge of the warden. In fact, with regard to many of the charged counts, the warden knew of the defendants' smuggling. On appeal, the defendants argued with regard to these counts that they could not be guilty of attempted violations of § 1791 because of legal impossibility. The Third Circuit agreed, reasoning that since the activities planned and engaged in by the defendants could not constitute a completed violation of § 1791, the defendants could not be convicted of an attempt to violate that section.
The reasoning of Berrigan, if applied to the case before this court, would require dismissal of Count IV of the indictment. In Berrigan, the defendants engaged in activities that would have violated federal law but for a fact unknown to them, i. e., the warden's actual knowledge of their smuggling operations. Similarly, in the case before this court, the defendants allegedly engaged in activities that would have violated federal law but for a fact unknown to them, i. e., that Forex was not engaged in commerce.
Although case law on this question is rather scarce, most courts and commentators have not adopted the Berrigan approach, a fact apparently known to the court in Berrigan. See Berrigan, 482 F.2d at 186. The Second Circuit, for example, takes an approach to the doctrine of impossibility radically different from that adopted by the Third...
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