United States v. Nelson
| Decision Date | 15 February 1980 |
| Docket Number | No. G78-115 CR5.,G78-115 CR5. |
| Citation | 486 F. Supp. 464 |
| Parties | UNITED STATES of America, Plaintiff, v. Earl E. NELSON and John A. MacLellan, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
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James S. Brady, U. S. Atty., Grand Rapids, Mich., for plaintiff.
William Waterman, Pontiac, Mich., Cassius E. Street, Jr., Lansing, Mich., Irving Tukel, Southfield, Mich., for defendants.
HILLMAN, Douglas W. District Judge.
On July 26, 1978, the grand jury indicted Earl E. Nelson, a Michigan State Senator, with violating the Hobbs Act (18 U.S.C. § 1951) by accepting $5,000.00 from John A. MacLellan, a lawyer, businessman and lobbyist, in exchange for his introducing legislation designed to legalize greyhound dog racing in the State of Michigan. 18 U.S.C. § 1951 reads, in part, as follows:
MacLellan, in Count II of the indictment, is charged with aiding, abetting, counselling, inducing and procuring Nelson's offense, in violation of 18 U.S.C. § 2(a). That section reads:
"Whoever commits an offense against the United States or aids, abets, counsels, commands, or induces or procures its commission, is punishable as the principal."
Both defendants have filed numerous motions which this court now considers.
A former member of the State House of Representatives, Earl E. Nelson was a State Senator for the 24th Senatorial District of the State of Michigan. He was first elected to that position in 1974, and served one term.
John A. MacLellan is named in the indictment as the sole shareholder and President of Michigan Information and Research Services, Incorporated, a company formed and utilized to provide State Legislators and others with current information on pending legislation. MacLellan is further named as one of the "organizers, principals, managers, and administrators, of Michigan Greyhound Racing Enterprises, Inc.", a corporation of the State of Michigan, formed for the purpose of promoting greyhound dog racing and for obtaining the necessary legislation for the legalization of that sport. Michigan Greyhound Racing Enterprises, Inc., was created on March 7, 1977; MacLellan was not, however, one of its incorporators.
The indictment charges that on or about February 24, 1977, in the City of Lansing, Michigan, Nelson obstructed, delayed and affected commerce by unlawfully obtaining $5,000.00 not due to him or his office from John A. MacLellan. This money was said to have been paid in order to obtain Nelson's service as a sponsor for legislation designed to legalize greyhound dog racing in the State of Michigan. The indictment further alleges that greyhound dog racing, if legalized, would depend upon the movement in interstate commerce of "greyhound race dogs, investment monies, participant greyhound dog owners, customers, advertisement, and other materials necessary in the operation of greyhound dog racing tracks." The $5,000.00 payment was said to have been borrowed by MacLellan from the Bank of Lansing, and applied to two installment loan accounts in the name of the defendant, Earl E. Nelson, with a balance having been applied to Nelson's personal checking account. MacLellan's consent to this arrangement was allegedly induced under "color of official right".
On May 11, 1977, Michigan Senate Bill 549, sponsored by Nelson and seven other Michigan Senators, was introduced into the State Senate and assigned to the Senate State Affairs Committee. The bill was subsequently transferred, however, to the Appropriations Committee, where it was assigned to the Special Subcommittee on Parimutuel Greyhound Legislation chaired by Senator Nelson. Although the State Governor firmly opposed SB 549, the bill received wide backing from across the state, including the support of the state AFL-CIO, the Michigan Association of Counties, the Greater Detroit-Building Trade Council, the Wayne County Board of Commissioners, the City of Detroit Common Council, and the American Federation of State, County and Municipal Employees. Nevertheless, on October 25, 1977, with only three of the original eight sponsors voting for passage, the Nelson bill was defeated by the full Senate on a vote of 29 to 5.
Shortly before Senator Nelson announced that he was going to be a candidate for re-election in 1978, the media released to the public stories about the loan and the fact that Senator Nelson had been one of the co-sponsors of dog racing legislation in 1977. Based upon this release of information to the public, the United States Attorney for the Western District of Michigan commenced a grand jury investigation into the transaction. As part of the investigation, bank officials and bank records of defendants' bank were among persons and papers that were subpoenaed.
Nelson was invited to appear before the grand jury, but declined. MacLellan, on the other hand, was offered broad and transactional immunity for his testimony against Nelson. He rejected this offer, and was subsequently subpoenaed. The grand jury likewise subpoenaed Attorney Richard A. MacLellan, nephew of John MacLellan, and questioned him about his knowledge of the loan transaction. He acknowledged that he had, at various times, acted as an attorney for Michigan Greyhound Racing Enterprises, Incorporated. While Richard MacLellan answered no questions pertaining to his client, John A. MacLellan, according to the defendants, he was compelled to answer questions concerning Michigan Greyhound Racing Enterprises, Incorporated.
The grand jury received no testimony from any of Nelson's seven co-sponsors to SB 549. Nor was it informed that between 1962 and 1965, nine bills identical to Nelson's bill were introduced into the Michigan Senate and were defeated.
Moreover, in the years 1972 and 1973, greyhound dog racing bills were likewise referred to the Appropriations Committee, although Nelson was not a member of the Senate at that time. Furthermore, between 1962 and 1977, 20 bills identical to or similar to Senate Bill 549 were introduced into the Michigan House of Representatives. The vast majority of these bills similarly had numerous sponsors. Finally, by 1977, when Nelson introduced SB 549, which was designed to legalize greyhound dog racing in the State of Michigan, twelve other states had already legalized this sport.1 Again, the grand jury received none of this information. Nevertheless, on July 26, 1978, the grand jury indicted Nelson for "extortion" in violation of 18 U.S.C. § 1951. MacLellan was charged in Count II of the indictment with aiding and abetting Nelson's alleged offense, in violation of 18 U.S.C. § 2(a). A copy of the indictment is included as an appendix to this opinion.
The indictment in this case charges that Nelson's unlawful acceptance of $5,000.00 affected interstate commerce. According to the indictment, as a result of Nelson's acceptance of this money, he introduced Senate Bill 549 which, if passed, would legalize a sport dependent upon interstate commerce for the movement of greyhound racing dogs, investment monies, participant greyhound dog owners, customers, advertisements, and other materials necessary in the operation of greyhound dog racing tracks. The defendants assert that the indictment insufficiently alleges jurisdiction, however, and they seek dismissal of it on that ground.
The jurisdictional element of the Hobbs Act is set out in 18 U.S.C. § 1951(a) and (b)(3). That section reads in part:
"(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce by . . . extortion . . . (commits an offense under this section)."
Congress defined the term "commerce" in Section (b)(3) by stating:
Because SB 549, introduced by Nelson pursuant to the alleged $5,000.00 bribe, died on the floor of the State Senate in 1977, the defendants argue that interstate commerce was never, in fact, affected. They recognize, however, that a "potential" effect on interstate commerce is enough jurisdictional basis for a Hobbs Act conviction. The defendants nevertheless claim that where the effect on interstate commerce is "potential" rather than "actual" something more is needed. That is, no conviction under the Hobbs Act can be sustained unless there is a realistic probability, at the time of the offense,...
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