United States v. Callanan, 2815.

• Decision Date: 17 July 1953
• Docket Number: No. 2815.,2815.
• Citation: 113 F. Supp. 766
• Parties: UNITED STATES v. CALLANAN et al.
• Court: U.S. District Court — Eastern District of Missouri

113 F. Supp. 766

UNITED STATES v. CALLANAN et al.

No. 2815.

United States District Court E. D. Missouri, S. E. D.

July 17, 1953.

William W. Crowdus, U. S. Atty., Ted Bollinger, Jr., Asst. U. S. Atty., and Marvin C. Hopper, Ass't U. S. Atty., of St. Louis, Mo., Troy B. Conner, Jr., Special Ass't to the U. S. Atty., of Arlington, Va., for plaintiff.

Morris Shenker, of St. Louis, Mo., for defendant Callanan.

Mark M. Hennelly, of St. Louis, Mo., for defendant Bianchi.

John R. Oliver, of St. Louis, Mo., for defendant Lawler.

Philip A. Foley and Wm. J. Hough, of Clayton, Mo., for defendant Secor.

Edward K. Schwartz, of St. Louis, Mo., for defendant Thompson.

HULEN, District Judge.

Defendants move to dismiss the indictment because it does not specify the offense attempted to be charged and employs vague and indefinite terms. This assignment raises a serious issue. The rules on pleading in criminal cases and requirement of an indictment are well known. Generally they are:

"to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had." United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 574, 31 L.Ed. 516.

The charging section of the second count of the indictment plainly presents the question raised. It reads:

"did Willfully, Unlawfully, and Feloniously conspire together, and each with the other, to obstruct, delay, and affect interstate commerce and the movement of articles and commodities in interstate commerce, by extortion of property, to wit, Eight Thousand Dollars ($8,000.00) of lawful monies of the United States of America, from said corporation, with its consent, induced by wrongful use of actual and threatened force, violence and fear."

This indictment deviates from the statute only to name (by reference) a corporation, and state an amount of money. The statute, section 1951, Title 18 U.S.C.A. reads:

"Whoever in any way or degree obstructs, delays, or affects commerce or the movement of an 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." (Emphasis added.)

Extortion is defined by Section (b) (2) of the Act as

"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." (Emphasis added.)

In Frankfort Distilleries, Inc., v. United States, 10 Cir., 144 F.2d 824, 830, the Court said:

"Ordinarily it is not sufficient to charge the offense in the words of the statute creating the offense, unless the words themselves fully, directly, and expressly, without uncertainty or ambiguity, set forth all the essential elements necessary to constitute the crime intended to be punished. * * * Where the statute is general in terms and fails fully, directly, and expressly to set forth with certainty and without ambiguity all of the essential elements necessary to constitute offense, the indictment must descend to particulars and charge every constituent ingredient of which the crime is composed." (Emphasis added.)

In each count of the indictment a corporation (identified by reference) is alleged to have parted with money as a result of extortion. The amount of "extortion" is $8,000. The date is August 15th, 1952. The same allegations are in each count. Aside from these facts the language of the indictment follows the statute.

The intent of Congress is apparent in this Act. Parts of it fully and expressly and with certainty set forth some of the elements necessary to constitute the crime covered. Other parts do not meet this norm. The crime created by the statute is interference with or attempt to interfere with interstate commerce, in certain ways —one is extortion. There can be interferences with interstate commerce that are not crimes and there can be extortions that are not crimes under the Act. A labor strike might interfere with interstate commerce and not violate this law. A union representative might extort money from an employer and if the extortion was solely with respect to an intrastate industry, the act, though wrongful, would not be covered by the Act, because not affecting interstate commerce.

The Act defines extortion. The definition is general and fails fully and with certainty to set forth the essential elements necessary to constitute an offense. We repeat it:

"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." (Emphasis added.)

The indictment follows the language of the Act as just quoted, "wrongful use of actual or threatened force, violence, or fear". Facts sustaining this part of the charge against the defendants could be proven and it would not necessarily follow that defendants had violated the law. The government must go further, and prove that by such conduct (wrongful use of actual and threatened force and violence and fear) interstate commerce has been "affected", or that there was an "attempt" to do so. Absence of reference to interstate commerce in the definition of extortion renders that portion of the law incomplete, and consequently an indictment following that language is incomplete to state a charge under the law. This defect cannot be cured by a bill of particulars. It is substantive.

We think the indictment subject to further criticism in this section by use of the word "wrongful", without alleging any conduct by defendants, but only conclusions in the language of the statute. The case of United States v. Murphy, D.C., 50 F.2d 455, 456, has a forceful impact on the indictment in its use of the word "wrongful" without pleading the acts claimed to be wrongful. The Court, in the Murphy case, had under consideration an indictment based on a statute providing:

"Whoever, upon the high seas or on any other waters within the admiralty and maritime jurisdiction of the United States, willfully and corruptly casts away or otherwise destroys any vessel, of which he is owner, in whole, or in part, with intent to prejudice any person that may underwrite any policy of insurance thereon, or any merchant that may have goods thereon, or any other owner of such vessel, shall be imprisoned for life or for any term of years." (Emphasis added.)

The indictment charged the defendants with

"wilfully and corruptly casting away and destroying the said Steamship `Rose Murphy' upon the high seas."

The Court held the indictment bad:

"I do not think the mere allegation that they agreed to corruptly cast her away takes the place of averring facts showing corruption. It is well recognized that, where statutes use expressions like this, it is not sufficient to use the statutory words, but the facts showing corruption must be averred just as the facts showing fraud must be averred when you charge that a thing was fraudulently done." (Emphasis added.)

The victim named in the indictment is a corporation. The word "wro...