United States v. Phillips, 83 CR 975.

• Decision Date: 15 March 1984
• Docket Number: No. 83 CR 975.,83 CR 975.
• Citation: 586 F. Supp. 1118
• Parties: UNITED STATES of America v. John G. PHILLIPS.
• Court: U.S. District Court — Northern District of Illinois

586 F. Supp. 1118

UNITED STATES of America v. John G. PHILLIPS.

No. 83 CR 975.

United States District Court, N.D. Illinois, E.D.

March 15, 1984.

Scott Turow, Asst. U.S. Atty., Chicago, Ill., for United States.

Anton R. Valukas, Daniel R. Warren, Jenner & Block, Chicago, Ill., for Phillips.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Attorney John G. Phillips ("Phillips") was indicted by a federal grand jury on December 14, 1983, in a single count alleging attempted extortion under the Hobbs Act, 18 U.S.C. § 1951. Presently before the Court is Phillips' motion to dismiss the indictment or, in the alternative, to strike surplusage from the indictment. For the reasons set forth below, the motion is denied in its entirety.

I.

The charge against Phillips arises from a conversation on July 14, 1982, between Phillips and another attorney, Charles Pressman ("Pressman"), relating to state court litigation entitled Harris Trust & Savings Bank v. Siegel, No. 76 CH 1405, and Siegel v. Harris Trust & Savings Bank, No. 76 L 4927 ("the Siegel case"). In 1976, Phillips had been appointed by the state court to act as guardian ad litem, and later as trustee, in the Siegel case. According to Pressman, Phillips stated during the July 14, 1982 conversation that a decision favorable to Pressman's client in the Siegel case could be obtained for $10,000. Pressman and his law partners reported this conversation to state government authorities, and a federal grand jury investigated and indicted Phillips for attempted extortion.

Phillips first argues that his indictment must be dismissed for lack of federal jurisdiction. Extortion under the Hobbs Act "means 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," 18 U.S.C. § 1951(b)(2). However, the Hobbs Act does not reach every act of extortion or attempted extortion; federal jurisdiction is present only when the extortion "affects interstate commerce." 18 U.S.C. § 1951(a).

Phillips contends that the government cannot demonstrate a realistic probability that Phillips' alleged extortionate demand would have affected interstate commerce. Phillips bases his contention on some deposition testimony taken from Pressman on October 18, 1983. Phillips claims this testimony proves that he offered to pay the alleged extortionate sum himself, thus negating any likelihood that the assets of Pressman's law firm would be depleted or that interstate commerce would be otherwise affected.

Assuming arguendo that Pressman's deposition testimony could properly serve as a basis for dismissing the government's case without a trial, Phillips' contention is unpersuasive. Phillips relies on a very small part of Pressman's testimony to support his argument. Many of Pressman's other responses to inquiries by Phillips' counsel about the July 14, 1982 conversation contradict Phillips' version of the events and support the government's allegation that Phillips was seeking money from Pressman and his partners. Thus, unlike the defendant in United States v. Ponto, 454 F.2d 657 (7th Cir.1971) (en banc), Phillips has failed to establish beyond dispute a defense which requires dismissal of his indictment.¹

II.

Phillips also argues that the government will be unable to sustain a "wrongful use of fear" prosecution at trial. Phillips contends that the economic loss feared by Pressman and his law firm was an unfavorable verdict in the Siegel case, and that he did not in any way threaten to cause such a loss to occur. This argument also fails. Although the state court judge, rather than Phillips, would directly cause the apprehended loss in this case, Phillips is not necessarily relieved of liability under the Hobbs Act. In a number of cases, a declared middleman between the victim and an public official has been prosecuted for wrongful use of fear of economic harm. See, e.g., United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981); United States v. Rosa, 560 F.2d 149, 154 n. 5 (3d Cir.1977) (en banc), cert. denied sub nom. Sica v. United States, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977); United States v. Irali, 503 F.2d 1295, 1299-1301 (7th Cir.1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975). In light of the suggestion that Phillips might influence the ultimate decision maker — the judge — Phillips' argument that he did not threaten to cause any loss is unavailing.

III.

The government in its indictment alleges that Phillips attempted to extort money from Charles Pressman both by the wrongful use of fear of economic harm and under color of official right. Phillips asserts that the "under color of official right" charge is defective on its face because he is not a public official. In essence, Phillips contends that there are two mutually exclusive branches of the Hobbs Act: extortion through the wrongful use of force, violence or fear, which may be committed only by private individuals, and extortion under color of official right, which is reserved for public officials who exploit the trust which the public has reposed in them. The government argues that this bifurcation is unwarranted and that all four of the proscribed means of extortion apply to public and private actors alike. Based on the statutory language, the legislative history and the case law relating to extortion under the Hobbs Act, we find the government's position persuasive.

We begin our analysis with the statutory language. On its face, the Hobbs Act does not appear to contain any class limitations. As stated in Section 1951(a), it applies to "Whoever in any way ... affects commerce ... by ... extortion." (Emphasis supplied). This prohibition could not be phrased more broadly. As noted above, "extortion" is defined as obtaining another's property by "the wrongful use of ... force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2). This list of the different means of committing extortion does not limit the statute's application to any particular categories of persons.

Nor does the phrase "under color of official right" apply only to legitimate office holders. To the contrary, "color" implies "an appearance, semblance, or simulacrum, as distinguished from that which is real ... a disguise or pretext." Black's Law Dictionary 240 (5th ed. 1979). Similarly, one definition of "color of office" is "pretense of official right to do an act made by one who has no such right." Id. at 241. Thus, the phrase "under color of official right" appears to apply not only to actual public officials but also to any person purporting to wield effective governmental power.

Such an interpretation of these words is supported further by a similar statute which existed when the Hobbs Act was passed in 1946. The statute, 18 U.S.C. § 171, prohibited extortion under color of office by federal employees or others who acted on the basis of "pretended or assumed" federal authority. The law, which had been first passed in 1906, 34 Stat. 546 (June 28, 1906) read as follows:

Every officer, clerk, agent or employee of the United States, and every person representing himself to be or assuming to act as such officer, clerk, agent or employee, who, under color of his office, clerkship, agency, or employment, or under color of his pretended or assumed office, clerkship, agency, or employment, is guilty of extortion, and every person who shall attempt any act which if performed would make him guilty of extortion, shall be fined not more than $500 or imprisoned not more than one year, or both. (Emphasis supplied).

Thus, long before the Hobbs Act became law, Congress had recognized that a private person could be prosecuted for extortion under color of an office that did not belong to him.

Under the common law, extortion was a crime which could be committed only by a public official. E.g., United States v. Kenny, 462 F.2d 1205, 1229 (3d Cir.1972), cert. denied sub nom. Sternkopf v. United States, 409 U.S. 914, 93 S.Ct. 234, 34 L.Ed.2d 176 (1972). However, in passing the Hobbs Act and related statutes, Congress intended to expand the reach of the common law notions of extortion to reach private conduct. See United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969) (interpreting "extortion" in 18 U.S.C. § 1952). Therefore, we cannot assume that Congress meant to impose common law limitations on the Hobbs Act — especially when Congress in Section 171 had already proscribed extortion under color of office by public and private persons.²

The legislative intent behind the Hobbs Act also supports the conclusion that this statute was meant to have the broadest reach possible, without the limitations suggested by Phillips. The statute's legislative sponsors repeatedly emphasized that the purpose of the bill was to punish all forms of extortive conduct which affected commerce in any way. Representative Hobbs declared, when he introduced the bill on the floor of the House,

This bill is grounded on the bedrock principle that crime is crime, no matter who commits it; and that robbery is robbery and extortion, extortion ... It covers whoever in any way or decree sic interferes with interstate or foreign commerce by robbery or extortion.

89 Cong.Rec. 3217 (1943).

In light of this and other broad proclamations of legislative intent, the courts have long resisted attempts to limit the scope of the Hobbs Act. As the Seventh Circuit recently explained in United States v. Jarrett, 705 F.2d 198, 202 (7th Cir.1983),

In Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), an extortion prosecution, the Court stated that the Hobbs Act "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion,

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