United States v. Phillips

• Decision Date: 14 October 1970
• Docket Number: No. 20021.,20021.
• Citation: 433 F.2d 1364
• Parties: UNITED STATES of America, Appellee, v. Thomas W. PHILLIPS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

433 F.2d 1364 (1970)

UNITED STATES of America, Appellee, v. Thomas W. PHILLIPS, Appellant.

No. 20021.

United States Court of Appeals, Eighth Circuit.

October 14, 1970.

Richard Marx, St. Louis, Mo., for appellant.

Richard Minkoff, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., and Peter T. Straub, Asst. U. S. Atty., St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, Circuit Judge, JOHNSEN, Senior Circuit Judge, and HEANEY, Circuit Judge.

JOHNSEN, Senior Circuit Judge.

In United States v. Phillips, 432 F.2d 973, decided September 21, 1970, we affirmed a conviction of Phillips for violation of 18 U.S.C. § 922(g) in having, as a previous felon, carried a pistol on an airline flight from Indianapolis, Indiana, to St. Louis, Missouri. Phillips' present appeal is from a later conviction for violation of 18 U.S.C. § 371, in having conspired with a Mrs. Williams to make the interstate trip to consummate the extortion of $25,000 from a Missouri resident named Bell. Extortion in Missouri is made a state crime by Mo. R.S. § 560.130, V.A.M.S. § 560.130, and use of interstate travel to promote or to engage in that state crime is made a federal offense by 18 U.S.C. § 1952.¹

The indictment on which Phillips was tried ran against him and Mrs. Williams jointly and contained charges against them of a substantive offense under § 1952 and of a conspiracy offense in relation thereto under § 371. The jury acquitted Phillips of the substantive charge, but, as noted, found him guilty of the conspiracy charge. Mrs. Williams, who was the Government's principal witness, had prior to Phillips' trial entered a plea of guilty to the conspiracy count but had not yet been sentenced, which facts Phillips' counsel took particular occasion to bring out to the jury on his cross-examination of her.

Some of the aspects which the jury was entitled to find from the evidence will be indicated. Bell was a small-town businessman in Missouri, where he had a wife and children. Mrs. Williams, who lived in Indianapolis, had been Bell's "paramour" — as he characterized her — for more than four years, and he had bought her a house there in which to make her home. He had engaged in trips throughout this period from Missouri to see her, and he had made payments of cash to her during that time totalling over $100,000.

The last trip in which he had so engaged occurred about two days before Phillips' and Mrs. Williams' conspiratorial trek to St. Louis. He had on this occasion taken Mrs. Williams out to dinner and for an evening of entertainment, and they had returned to the house around 1:00 a. m. Phillips, unknown to Bell, also was a friend of Mrs. Williams, and she had informed him of Bell's current presence in the city. He requested her to keep Bell out that evening so that they would not get back to the house until around or after 1 o'clock. Phillips was at the time employed at the local Chrysler plant and would not get off from work until midnight.

When Bell unlocked the front door and proceeded into the house ahead of Mrs. Williams, he was met in the living room by Phillips with a gun in his hand. Phillips bound Bell's hands and feet, informed him that he knew of Bell's relationship with Mrs. Williams, demanded that Bell raise $25,000, and threatened that unless he did so harm would come to his wife and children. After additional threats, Bell indicated his willingness to return to Missouri on an early morning flight to raise the money, and Phillips then freed him. Phillips after engaging in further emphasis stated that he and Mrs. Williams were going to leave, warned Bell not to use the telephone or otherwise contact the police, and said that he would call Bell in Missouri the next day around noon to be certain that he had gotten the money.

Bell returned to Missouri on the early morning flight, as Phillips had demanded he do. He revealed to his wife the sordid affair which he had been having and told her of his immediate plight. After weighing the situation, he decided to get in touch with the F.B.I. When Phillips telephoned him around noon, he told Phillips that he had arranged to get the $25,000, and Phillips instructed him to meet Mrs. Williams the next morning at a certain time in the restaurant of the St. Louis airport and pay over the money to her.

Before they deplaned at St. Louis, Phillips gave Mrs. Williams an attaché case to which to transfer the money she would receive from Bell from her purse or handbag. As Phillips and Mrs. Williams left the plane, they separated, but each was kept under surveillance by the F.B.I. Mrs. Williams proceeded to the restaurant as planned, where she joined Bell who was seated at the counter. He turned over to her a package of money, which the F.B.I. had made up to insure its identifiability. After she had put the package into her purse or handbag, she was arrested by the F.B.I. Phillips was also arrested, with a gun and ammunition clip on his person. (The transportation of the gun was made the subject of the charge and conviction mentioned at the start of this opinion.)

None of Phillips' contentions here entitle him to a reversal, and we affirm his conviction. The contentions need be only briefly discussed.

Constitutional contentions in such number are set out in appellant's brief as to represent almost a catalog. Bald assertions are made that § 1952 is violative of the First Amendment, the Fifth Amendment, the Sixth Amendment, and the Tenth Amendment, in their relation respectively to the right peaceably to assemble; the right of freedom of speech; the prohibition against double jeopardy; the guarantee of due process against vagueness and uncertainty as to standards of conduct; the denial of equal protection as a matter of due process on the differences existing in the criminal statutes of the various states; the right to trial in the state and district wherein the crime shall have been committed; and the reservation of powers to the states pertaining to matters exclusively within their jurisdiction and not of the federal government.

Such naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion. But if we were to indulge tolerantly in any expression as to them, there could be no occasion to go further than to point out that they have virtually all been previously urged against § 1952 and rejected by us in Spinelli, (Spinelli v. United States), 382 F.2d 871 (8 Cir. 1967) reversed on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. The statements and implications of that opinion, 382 F.2d at 887-888 and 890, are ample to indicate the utter lack of substance in any of them as related to § 1952.

Beyond his constitutional assertions, however, Phillips contends that § 1952 should be construed as being without legislative intent and reach against the "unlawful activity" of individuals, but only against such activity on the part of organized crime or professional syndicates. A similar argument also was made in Spinelli, where the state crime...