United States v. Burke, Crim. No. 22709
| Decision Date | 02 January 1968 |
| Docket Number | 22717 and 22718.,Crim. No. 22709 |
| Citation | 278 F. Supp. 711 |
| Parties | UNITED STATES of America v. William Joseph BURKE, Sherman Chadwick Kaminsky, Joseph Francis Nardello, and Isadore Weisberg. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Drew J. T. O'Keefe, U. S. Atty., Robert St. Leger Goggin, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
F. Emmett Fitzpatrick, Jr., A. Charles Peruto, Melvin Dildine, Dominick Vitullo, Philadelphia, Pa., for defendant.
Defendants herein were indicted and charged for the federal offenses of promoting and conspiring to promote extortion under state law, 18 U.S.C. §§ 1952, 371, and 2. Defendants subjected themselves to federal jurisdiction by their interstate travel for the purpose of carrying on their alleged enterprise, 18 U.S.C. § 1952(a).
The validity of this indictment raises squarely a question of statutory construction.
Defendants were allegedly involved in an interstate ring specializing in the "shaking down" of certain prominent victims whom members of the ring would entice into a compromising homosexual experience and then threaten with exposure unless a price were met. The indictments, which defendants here move to dismiss, were drawn under a statute which in terms prohibits interstate travel "in aid of racketeering enterprises," 18 U.S.C. § 1952(a). The statute further focuses, in pertinent part, on those who cross state lines with criminal intent and thereafter perform or attempt to perform:
(2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
18 U.S.C. § 1952(b) (2). Whether defendants' alleged activity is federally proscribed can be resolved only through analysis of the statutory language and legislative history.
The anti-racketeering statute, as it applies to the present defendants, defines the federal offense of extortion by reference to the standards of Pennsylvania law. Hence to understand fully the scope of the federal crime we must examine separately both the degree of particularity with which § 1952 incorporates the state law and the substantive meaning of the incorporated Pennsylvania crime of extortion.
Section 1952, as a result of legislative compromise, is disjunctively worded so as to cover several discontinuous areas of crime. As the successive Congressional discussions show, the anti-racketeering bill, S. 1653, began with the language that was ultimately enacted into law and which proscribed, broadly, "extortion or bribery in violation of the laws of the State in which committed * * *." 107 Cong.Rec. 13,942 (July 28, 1961). Ultimately rejected was an intermediate version which would have restricted the prohibited activity to extortion or bribery "in connection with" the crimes enumerated in the prior subsection of the statute, viz., "gambling, liquor, narcotics, or prostitution offenses," Cong.Rec. 16,809 (August 23, 1961).
Lest this progression of draft versions be construed to evince a legislative intent to lend a broader reach to the final statute than its language would reasonably suggest, the House and Senate hearings consistently show what the words of the statute themselves attest: that the incorporation of state definitions for the crimes of extortion and bribery was enacted with the expectation that their content would differ substantively from state to state.1 The term "extortion" in 18 U.S.C. § 1952 was thus intended to track closely the legal understanding under state law, and was not designed to be more generic in scope.2 As was said in a recent case under § 1952, "reference to the state law is necessary * * * to identify the type of unlawful activity in which the accused was or was not engaged," McIntosh v. United States, 385 F.2d 274, 276 (8th Cir. 1967). The Pennsylvania definition of extortion, therefore, is strictly controlling in the instant case.
18 P.S. § 4318. Since none of the defendants was a public officer (although two did pose as members of the Philadelphia Police Department), the state crimes with which they were charged are those of Blackmail by injury to reputation or business, 18 P.S. § 4802; and Blackmail by accusation of heinous crime, 18 P.S. § 4803. It is the Government's contention that these crimes fall within the scope of "extortion" as intended by 18 U.S.C. § 1952.
It is true that the terms "extortion" and "blackmail" are often confused in statutory, judicial, and common, language. The Pennsylvania crime of blackmail itself is defined as being committed, inter alia, by "whoever by means of written, printed or oral communications * * * extorts money * * *." 18 P.S. § 4801 (emphasis supplied).
What dicta there is in the Pennsylvania cases tending to equate the crimes of extortion and blackmail is sparse, unsupported, and seems carelessly drawn. In Commonwealth v. Kirk, 141 Pa.Super. 123, at 136, 14 A.2d 914, at 920, aff'd 340 Pa. 346, 17 A.2d 195 (1940), it is said that:
* * * extortion is made a misdemeanor by Act of June 9, 1911, P.L. 833, 18 P.S. § 2932; Com. v. Miller, 94 Pa.Super. 499, 507, 508 1928; Com. v. McHale, 97 Pa. 397, 407, 410 1881.
The statute cited therein was the predecessor to the current blackmail statute, 18 P.S. § 4801. In Kirk, however, as well as in Miller and McHale, the defendant and/or his associate was a public officer. There is an inferential allusion to the interchangeability of blackmail and extortion in Pennsylvania, without any cited support, in Commonwealth v. Downer, 159 Pa.Super. 626, 632, 49 A. 2d 516 (1946), and Commonwealth v. Neubauer, 154 Pa.Super. 528, 530, 16 A.2d 450 (1940). Commonwealth v. Hoagland, 93 Pa.Super. 274 (1928), seems more accurate, however, where it distinguishes the blackmail statute from common law extortion, by saying, at 276:
The offense prohibited by that statute P.L. 833 is not common law extortion. The statute makes the acts therein described misdemeanors whether committed under color of office or not.
And Commonwealth v. Nathan, 93 Pa. Super. 193 (1928) appears simply in error as to the statutory law, where it reports, at 197:
In common understanding, blackmail and extortion describe the same conduct. While extortion at common law was an offense commited sic by an officer under color of his office, the term has a broader significance in modern legislation and applies to persons who exact money either for the performance of a duty, the prevention of injury, or the exercise of influence.
Contra, 18 P.S. § 4318.
In summary, then, to commit the crime of extortion in Pennsylvania, it is no less a prerequisite that the actor be a public officer because the verb "extort" has a more generic meaning in common understanding. The crime of extortion which is "in violation of the laws of the State in which" defendants allegedly carried on their...
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United States v. Nardello
...that the term extortion as used in the Travel Act was intended 'to track closely the legal understanding under state law.' 278 F.Supp. 711, 712 (1968). Reasoning from this premise, the court concluded that in Pennsylvania the offense of extortion was covered only by Pa.Stat.Ann., Tit. 18, §......