United States v. Williams

• Court: U.S. District Court — Eastern District of Louisiana
• Writing for the Court: Virgil M. Wheeler, Jr., New Orleans, La., for defendant
• Citation: United States v. Williams, 480 F.Supp. 1040 (E.D. La. 1979)
• Decision Date: 20 June 1979
• Docket Number: Crim. A. No. 79-46.
• Parties: UNITED STATES of America v. Henry E. WILLIAMS.

480 F. Supp. 1040

UNITED STATES of America v. Henry E. WILLIAMS.

Crim. A. No. 79-46.

United States District Court, E. D. Louisiana.

June 20, 1979.

Richard T. Simmons, Jr., Asst. U. S. Atty., Chief, Crim. Div., Geoffrey L. Beauchamp, Asst. U. S. Atty., New Orleans, La., for plaintiff.

Virgil M. Wheeler, Jr., New Orleans, La., for defendant.

ORDER AND REASONS

DUPLANTIER, District Judge.

This case involves an unusual and apparently first attempt in this Circuit to apply the "color of official right" part of the "extortion" definition in the Hobbs Act to activities of a local public official not involving duress or fear of harm.

Defendant, Henry Williams, was convicted by a jury on all counts of a three count indictment charging violations of 18 U.S.C. § 1951, known as the Anti-Racketeering Act or the Hobbs Act, which, inter alia, prohibits "extortion" affecting interstate commerce.¹

"Extortion" is defined in subsection (b)(2) of the act:

(2) The term "extortion" 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.

Each count of the indictment charges that defendant, while a member of the Jefferson Parish, Louisiana, School Board, an elective office, "did knowingly, willfully and unlawfully attempt to and did . . affect interstate commerce . . . by means of extortion, in that the defendant, did unlawfully seek, ask, solicit, and receive, under the color of official right . . . either a cash sum (Counts One and Two) or airline tickets (Count Three), not due him or his office and to which neither he nor his office was entitled . . .." The indictment is set forth in full in an Appendix hereto.

There is no allegation in the indictment, nor is there any evidence whatsoever, that the defendant used actual or threatened force, violence or fear, not even fear of economic loss, to induce the payments. The government's position is that "force, violence or fear", or the threat thereof, is not essential to the commission of the offense. As stated in its Reply to Defendant's Supplemental Motion In Arrest of Judgment, the government contends that a local public official violates the statute (assuming requisite effect upon interstate commerce) if he "accepts money or things of value knowing that he is not entitled to these gratuities for the lawful discharge of his duties and, secondly, that the payment of those gratuities were (sic) induced by his official position."

On more than one occasion during pretrial conferences, in response to the court's inquiries the government confirmed that it intended to produce no evidence that defendant represented to the "donor" that he was entitled by virtue of his public office to the property he obtained, nor that there was actual or threatened fear, express or implied, of economic loss. The government's contention, based upon the disjunctives in the statutory definition, as applied here, is that the statute proscribes "the obtaining of property from another, with his consent under color of official right," which includes accepting gratuities and bribes. In defining extortion in its charge to the jury, the court included the term "induced" before "under color of official right", on the basis that the defendant is entitled to the strict interpretation of a criminal statute and that "induced" could modify every phrase thereafter. The pertinent part of the charge is attached as an Appendix hereto. The court also included another element not specified in the statutory definition, i. e., that there must be an indication by the defendant to the "donor" that defendant will favor the "donor" in defendant's official capacity. In effect, the court acceded to the government's contention that, in this case, extortion is synonymous with the solicitation of a bribe.²

By a motion in arrest of judgment under Rule 34, Fed.R.Cr.P., Williams for the first time raised the contention that as applied to this case, the Hobbs Act is unconstitutionally vague.³ His challenge centers on the words "under color of official right" in the statute's definition of extortion, used in each count of the indictment. If the statute is impermissibly vague, then the indictment which tracks the statutory language fails to charge an offense and defendant's conviction cannot stand.

Stripped of verbiage which is either inapplicable or of no consequence, and reconstructed to illustrate the issue more clearly, the statute as charged in the indictment provides that "Whoever obtains something of value from another, with his consent, induced under color of official right" is guilty of an offense against the United States. For the following reasons, the court holds that the part of the statute at issue is unconstitutionally vague and that therefore the indictment fails to state an offense. The motion in arrest is granted, the jury verdict is set aside, and the indictment is dismissed.

Alternatively, we hold that even if its meaning is sufficiently clear to be constitutional, the statute does not mean what, at the government's request, the court charged it to mean. Therefore, although there was ample evidence to support the jury verdict based upon the government's theory and the court's charge as to the meaning of the statute, since the charge instructed the jury that an essential element of the crime, coercion, was not an element, and since there was no evidence of coercion, the conviction cannot stand. Accordingly, as an alternative to the order granting the motion in arrest of judgment, the court sua sponte sets aside its judgment denying defendant's motion for judgment of acquittal and grants the motion.

The test to be applied when a criminal statute is challenged for vagueness is whether the terms of the statute are sufficiently precise to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). The court finds that the statute, as employed in this indictment, fails to meet this test.

In a recent decision, Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), the Supreme Court reaffirmed its "long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity."

This practice reflects not merely a convenient maxim of statutory construction. Rather, it is rooted in fundamental principles of due process, which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. Thus, to ensure that the legislature speaks with special clarity when marking the boundaries of criminal conduct, the courts must decline to impose punishment for actions that are not `plainly and unmistakably' proscribed. citations omitted 99 S.Ct. at 2197.

There is apparently no specific discussion as to the meaning of the phrase "under color of official right" in the legislative history of the Hobbs Act. The language seems to have been derived from Section 850 of the New York Penal Law of 1909:

Extortion is the obtaining of property from another, or the obtaining of the property of a corporation from an officer, agent or employee thereof, with his consent, induced by a wrongful use of force or fear, or under color of official right.⁴

The New York law, it should be noted, is different from the common law definition of extortion. Under the common law, extortion was defined as "the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due to him, or the taking of more than is due, or the taking of money before it is due."⁵

There are at least two important distinctions between the common law definition of extortion and that in the Hobbs Act: The common law refers to "unlawful taking", the Hobbs Act merely to "obtaining"; at common law the "taking" must be "by any officer by color of his office", under Hobbs the "obtaining" must be "under color of official right."⁶

Whatever the elements of the crime of extortion may be under the common law or under state statutes which adopted similar wording, the issue to be decided is whether the words of this particular statute are sufficient to give a present day public official fair warning as to what conduct may be subject to the sanctions of the criminal law. This statute cannot be made constitutional by incorporation of some historic definition of extortion, for the statute itself defines the term, and the indictment refers to only the stated part of the definition. In any event, we have been referred to no historic definition of "obtaining . . . induced . . . under color of official right"; indeed, this terminology is apparently of recent origin, whatever it may mean.

There are a number of questions as to what activities are meant to be covered by the statute. As a matter of syntax, the statute is clearly disjunctive; the offense is committed if one obtains property of another induced either by "wrongful use of actual or threatened force, violence, or fear", or "under color of official right".⁷ As already noted, the indictment charges only the latter activity, not the former. However, the structure of the statute also makes clear that the word "wrongful" in the definition cannot be held to modify "under color of official right." Yet, some courts have read into the statute a requirement that a defendant use his office "wrongfully."⁸ The indictment at issue here charges that the defendant did "unlawfully seek . . . and receive . . .". By describing activity as "unlawful" an indictment cannot make it so, nor thus cure an otherwise unconstitutional statute. The statute also leaves open the question of whether the official must initiate the transaction, that is, make a demand for...