United States v. Culbert – Oral Argument – January 11, 1978

Media for United States v. Culbert

Audio Transcription for Opinion Announcement – March 28, 1978 in United States v. Culbert

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Warren E. Burger:

We will hear arguments next in United States v. Culbert.

Mrs. Beale you may proceed whenever you are ready?

Sara Sun Beale:

Mr. Chief Justice and May it please the Court.

This case comes before this court on the Government’s petition for review of a decision of the Ninth Circuit Court of Appeals, holding that although respondent’s conduct in this case falls within the language of the Hobbs Act, 18 U. S. C. Section 1951.

It was nonetheless not within the reach of that Act because it did not also constitute racketeering.

Accordingly the Court of Appeals concluded that respondent’s conduct fell within the exclusive criminal jurisdiction of the State of California.

Let me reiterate at the outset that there is no dispute that respondent’s conduct fell within the express terms of the Act which reaches the conduct of whoever in any way or in any degree obstructs delays or affects commerce by either robbery or extortion or who attempts or conspires to do so.

Warren E. Burger:

You say there is no dispute except that the Court did not seem to follow that?

Sara Sun Beale:

Well, there is no dispute that it falls within that language.

The question is whether the Act should be construed to have an additional limitation to racketeering, but it falls within the express terms.

The evidence showed that in April of 1975, respondent and his accomplice attempted to extort a $100,000 from the federally insured bank that was doing business in interstate commerce.

Respondent’s accomplice telephoned the bank’s president and threatened to detonate remote-controlled bombs at both the bank and the home of the bank president unless certain instructions were followed.

The bank president then took a package of false currency that has been supplied by the Federal Bureau of Investigation and left it at the spot that has been designated by respondent’s accomplice.

The respondent and his accomplice never picked up this package because it was found almost immediately by two small children who opened it and tore apart the packages of false currency.

Following a Jury trial in the Northern District of California, respondent was convicted of both the violation of the Hobbs Act and also of attempted bank robbery.

Although the Court of Appeals reversed both of these two convictions, the government seeks review in this court only of its ruling regarding respondent’s conviction under the Hobbs Act.

The Court of Appeals concluded relying upon an earlier decision of the Sixth Circuit that conduct such as respondent’s, which was prescribed by the express terms of the Hobbs Act must also be proven to constitute racketeering in order to be within the reach of that Act.

The Court rested this construction on the Act on two distinct grounds; first on its reading of Congressional Intent and second on its view of the considerations of Federalism.

The Court did not in its opinion defined the term “racketeering” and that is the point to which I will return later in my argument.

It did however conclude that there was no evidence of “racketeering” in the present case.

Judge Carter dissented from the reversal of the conviction under the Hobbs Act.

I want to stress that the Court of Appeals did not suggest and respondent does not contend that Congress lacked the constitutional authority to prohibit all of the conducts which does fall within the express terms of the Hobbs Act.

The breadth of Congress’ power under the Interstate Commerce Clause is firmly established and it is in no way a questioned here.

The Court of Appeals simply concluded that considerations of Federalism militated against any conclusion that Congress had intended, what that Court viewed as a major incursion into areas of State concern and as a result that Court adopted the limiting construction of the Act which is at issue here.

The language of the Act itself, which is of course the primary guide to its meaning, contains no support for this construction.

The Act does not define nor does it even mention the term “racketeering” nor does it contain any qualifying words that might be thought to exempt conduct which may not amount to racketeering.

Instead, the Act is broadly drafted to reach anyone, who in anyway or degree obstructs or effects commerce by either robbery or extortion.

Accordingly, the high of this Case is respondent’s contention that the sweeping language which Congress employed requires the limiting construction of the Act in order to prevent a wholesale invasion of the criminal jurisdiction of the States, a result which respondent contends was not within the intention of Congress.

I would like to turn first to the question of the legislative history of the Act.

I will not attempt here to review in great detail the various Congressional Committee reports that were issued in connection with both the Hobbs Act and its immediate predecessor the Act of June 18, 1934, nor will I try and review in detail the debates.

Sara Sun Beale:

These matters are discussed at length in our brief.

I do want to make two principal points in connection —

I take it the theory your case is you do not need to look at the legislative history at all?

Sara Sun Beale:

Well, I think that the language of the Act is very plain, but when one looks at the legislative history one finds nothing that supports the conclusion that is really at variance with that plain and very broad language.

My first point in connection with the legislative history of the Act is that although it was an outgrowth of Congressional concern with so called “racketeering” that in no way indicates that Congress intended some unstated limitation which appears neither in the Act itself nor in the committee reports to some concept of racketeering whatever that maybe.

Mrs. Beale, has the Government utilized the Act to in cases such as this only recently?

Sara Sun Beale:

I think there has been no substantial change in the enforcement of the Hobbs Act in some 30 years since it was enacted.

It has received no new construction and I am not aware of any substantial change.

Has they believe it has been restricted to the way across the state line?

Sara Sun Beale:

Well, there are simple policies that are currently used by the Department to determine what are appropriate areas or appropriate kinds of cases in which Hobbs Act should be enforced and they differ according to whether robbery or extortion is at issue.

The Department at present and I am not certain when this policy was first promulgated, it is not of particularly recent origin, but in robbery cases, the Department as a matter of policy restricts prosecution in most instances to cases where there is either a showing of organized crime involvement or an extensive scheme of some sort.

Now, in practice there is also an attempt to limit other kinds of cases to areas where there is what is thought to be a substantial federal concern and a point that I want to discuss shortly is that concerns really the reality of the concern with the invasion of State interests and a point that I was going to mention is that there were only 166 nationwide indictments under the Hobbs Act in 1976 and that perhaps will give some kind of an idea of what the enforcement pattern currently is.

Ms. Beale, you have mentioned as the Department limits its prosecution in the case where there is a substantial federal concern.

You have cited the States Act Case in your brief if you remember, what was the substantial federal concern there?

Sara Sun Beale:

Well, the States Act case was a prosecution under color of official right, portion of the Act.

Because it is a zoning bribery case, would it not, local zoning?

Sara Sun Beale:

Right, I think one of that considerations is of course and a theme that recurs in legislative history of the Act is a real concern for offenses which (A) affects commerce and (B) where the States have not acted on those prosecuting offences.

In other words, the substantial federal concern is that the State is not doing a good job of enforcing its own laws?

Sara Sun Beale:

Well, I think that where interstate commerce has interfered by means of extortion where color of official right is involved, that is an area, particularly were the concern that Congress expressed whether that the States were not acting is being initiative.

There was not really a terrible interference with interstate commerce in that case, was it not?

Sara Sun Beale:

And then that Neary hospital was never built.

I would not disagree that States Act maybe a case that is on the fringes and that there may not among a 166 prosecutions in a year be some which are not on the edge of the commerce.

Such as the present case accruing in the main —

Is it not true that the statutes frequently have been used, at least in the Seventh Circuit, to prosecute political-type crimes where the local law enforcement authorities were not enforcing the local law?

Sara Sun Beale:

Well, I guess I am not prepared to discuss particularly the Seventh Circuit enforcement.

I do think that it is clear that the Act itself contains this specific provision dealing with extortion under color of official right and that that fits quite comfortably with the concern in the legislative history and that where there are crimes affecting interstate commerce, and particularly where the States do not act, and that is very likely to happen in cases of official corruption, that that would be appropriate area of federal concern.

So I would not be surprised to see a pattern such as that in the Seventh Circuit.

William H. Rehnquist:

Well, why do you say you would not be surprised to see such a pattern in the Seventh Circuit? [Laughter]

Sara Sun Beale:

I am not sure I intended quite, that was only in response to the earlier question.

Well, you are moving forward —

Warren E. Burger:

You have mentioned 166 cases in a year and in addition you have 94 United States Attorney’s Offices and the police senior the monitoring, perhaps I should say the monitoring of the day-to-day decisions is not a simple task I suppose?

Sara Sun Beale:

Oh! I think that is quite right but there is and this is the only point and we raised this in our brief to suggest that there is an effort to try and exert some control on the part of the Department, which is I think wholly consistent when the Act is very broadly drafted and this merely in response to the question of how is the Act enforced.

The Bank here, if I may interrupt, was a National Bank, was it not?

Sara Sun Beale:

Pardon me?

The bank that was the subject of this extortion was a National Bank?

Sara Sun Beale:

That is quite right, it was a federally-insured bank and there was also evidence of its doing business in interstate commerce and I think that is not at all any —

Well, if it had been a State Bank and not insured under the FDIC, would that admit it?

Sara Sun Beale:

Well, I think that it seems to me at least and we have argued in our brief, that the banking industry is one which really has occupies a special position in interstate commerce and it serves as one of the channels of interstate commerce and I think a prosecution for extortion of a State Bank would not be an inappropriate exercise of federal power and I think it could be shown to have an effect probably on interstate commerce in a given case.

The proof in this case showed interstate commerce?

Sara Sun Beale:

That is correct.

Warren E. Burger:

But the statutory authority and the motives of the United States Attorney dispositive or even very important?

Sara Sun Beale:

No, I think that they are not dispositive and as I say this was raised only in connection with trying to quantify what is the practice under the Act, how many prosecutions are there because that goes to the issues suggested by respondents and the concern raised by the Court of Appeals as to whether the broad language of this Act has resulted or will result in some widespread incursion into areas of traditional State concern.

I think it is only relevant for that reason because of the concern expressed below.

Well, Ms. Beale, the literal language of the Act I suppose, would you not agree would color robbery of goods from a department store that were destined to move and had moved in interstate commerce and were destined to be sold to customers of the store?

Sara Sun Beale:

Well, I think an effect on interstate commerce could be shown and it is clear that the Act applies where in fact…

And would it not apply to that case?

Sara Sun Beale:

Well, I think —

Would it also apply to (Inaudible) in the home that has been shifted interstate commerce?

Sara Sun Beale:

I think we may be getting near the fringes here.

What if it is robbery?

If it is robbery, it has to be robbery or extortion?

Sara Sun Beale:

Affecting.

Affecting commerce?

Sara Sun Beale:

Right.

Ms. Beale, I would like to get back to this question I have been trying to get a word and advice on here?

The Court does not relied on the Yokley Case, did not it?

Sara Sun Beale:

That is exactly right.

And this was a robbery of a Kmart store?

Sara Sun Beale:

That is correct.

Do you think that is a different kind of a case?

Sara Sun Beale:

Well, I see no reason for distinguishing either in terms of the legislative intent or the considerations of Federalism as to whether some kind of additional concept not stated in the Act, should be applied or construed into the Act.

The legislative history makes it quite clear that at the time the Hobbs Act was enacted those who opposed the Act argued that every state had laws covering both extortion and robbery and they argued that this Act should not be passed because it would be a wholly unwanted incursion into these areas of State concern that the State had laws.

The proponents of the bill did not in any way disagree with that.

They said yes this is an area, every state has laws regarding extortion and regarding robbery, but in so far as it affects interstate commerce, these laws have not been enforced.

In many instances there is a burden and effect on interstate commerce and Hobbs Act must be passed in order to protect the flow interstate commerce.

That is the argument that carried the day.

No distinction was drawn either in the legislative history or in these debates as to either robbery or extortion.

Then let me ask you an unfair question?

Why did not the Solicitor General of Sixth Circuit in Yokley?

Sara Sun Beale:

I really cannot answer that question.

I think at that point —

Because he was a Circuit Judge at that point.

Sara Sun Beale:

In fact the case I saw — [Laughter]

Thurgood Marshall:

Could that be an embezzlement that would not be under this statute?

Sara Sun Beale:

An embezzlement?

Thurgood Marshall:

Of money because money travels in interstate commerce?

Sara Sun Beale:

Well, I would not think considering the [voice overlap]

Thurgood Marshall:

Would it not affect the interstate commerce, embezzlement of money?

Sara Sun Beale:

Well, the Act is limited to robbery and extortion affecting interstate commerce and I would not think that normal case of embezzlement would fall in the definition of the Act.

Thurgood Marshall:

But robbery would?

Sara Sun Beale:

Well, because robbery is specifically.

Thurgood Marshall:

But why would you draw a line between robbery and embezzlement, unless they stop Congress in passing on embezzlement?

Sara Sun Beale:

I see no Constitutional impediment against Congress passing such a law.

Thurgood Marshall:

Well, what about steeling from a will?

Can you steal the money?

I am just wondering what is left to the state?

Sara Sun Beale:

I am not certain what affect there would be on interstate commerce that could be relied upon by Congress in the case of stealing from a will.

Thurgood Marshall:

Then it is conceded, money rules in interstate commerce, it has too?

Sara Sun Beale:

Well, that is a very broad statement, whether that would support the exercise of.

Thurgood Marshall:

Well, California does make any money?

Thurgood Marshall:

They do not mind if (Inaudible), do they?

Sara Sun Beale:

It certainly should not be.

Thurgood Marshall:

So the money in California has moved in interstate commerce.

Sara Sun Beale:

That is correct.

Thurgood Marshall:

Which is covered by the statute?

Which is wrong?

Sara Sun Beale:

I am not sure that I…

Thurgood Marshall:

If you rob money in the state, you would covered by the statute?

Sara Sun Beale:

Well, it is not clear that merely because some article has that one time passed interstate commerce at will that that would provide sufficient basis for Congress.

The Congress really want to one would have the power to would be able to make findings that any robbery affected interstate.

Thurgood Marshall:

It says robbery in any way or degree obstructs, delays, or affects commerce.

Sara Sun Beale:

Right, that is correct.

Thurgood Marshall:

And so if you rob somebody money, you could at least affect the commerce?

Sara Sun Beale:

Well, an artful counsel might be able to make that argument.

I suspect that Jury would not find that there had really been an effect on interstate commerce, if I rob someone a $5.00 on the corner.

In anyway, I do want to make a few additional points.

One is that the legislative history clearly indicates that there was no settled meaning for the term “racketeering” although Congress was concerned in 1934 and in 1946 with a variety of problems that were described as “racketeering.

That term had no distinct meaning.

The committee which was investigating the problem of racketeering found it necessary to adopt a working definition to guide its investigation and it stated that it was necessary to adopt such a definition because the term “racketeering” was being used to refer to activities that were not even criminal, to activities that were immoral, to activities that were fraudulent, to wide varieties.

Another point that it seems inconceivable in that regard that a committee that was so aware of the vagueness of the definition of the term “racketeering”, would nevertheless have intended to make that a part of a federal criminal statute without mentioning it in the Act, without defining it, without making it as clear in the committee reports.

Another point regarding the legislative history of the Act, is that there is a suggestion both in respondent’s brief and by the Court below that because the originating committee was concerned with racketeering and because there are various expressions of support for the bill as an anti-racketeering measure, the bill should be construed as limited to this one kind of problem only to racketeering.

If that were true, it seems to me that all the ninety some bills that were proposed by the same committee at the close of its investigation on racketeering, which range from kidnapping to munity in Federal Prisons, to interstate transportation of stolen property, that all of those would likewise have to be limited to racketeering.

And it seems to be that it is simply not reasonable to construe all the committee’s work as limited to racketeering, when it never expressed the desire that that should be done and when this was not made an element of that particular statute.

I have already mentioned the fact that the debates on the Hobbs Act make very clear the fact that Congress was well aware of the fact that the crimes being defined in the Hobbs Act were crimes which are already punishable under State law and in deed it was recognized that the definitions which appear in the Hobbs Act were derived and were taken directly from the New York penal code.

William H. Rehnquist:

The Hobbs Act does not preempt State law, does it?

Sara Sun Beale:

No, that is exactly right.

No one has ever suggested that merely because the Congress found it desirable and necessary to define the theory to allow federal prosecutions that had intended that the State should not be allowed to prosecute robbery and extortion and indeed they do so today.

I think it is time to turn from the legislative history to the considerations of Federalism, which really underlay the Court’s reading on the legislative history.

The first point that I would like to make is one which I touch on somewhat earlier.

The Court of Appeals suggested that the limiting construction, which it applied to the Act was essential in order to prevent a really wide scale invasion and incursion on to the criminal jurisdiction of the States.

Sara Sun Beale:

Just mentioning response to Mr. Justice Rehnquist’s question that the Act has never been interpreted nor was in intended to preempt the State.

In addition as I noted earlier, there has been no wide scale incursion into areas causing a general problem.

There were 166 prosecutions nationwide in 1976.

Again, turning to this particular prosecution, we think it is a good example of one where there is a strong federal interest involved.

The Federal Government (Inaudible) has a compelling interest in prosecuting under its own laws an attempted extortion from a bank that it ensures that serves businesses in many states and that is part of an industry that perhaps more than any other facilitates the flow of interstate commerce.

In any event, even assuming that there are factual situations that fall within the literal language of the Hobbs Act, but in which there is no substantial federal interest, requiring proof of “racketeering” would in no way serve to screen out those cases in which there is a minimal federal interest.

Although the Court of Appeals provided no definition of “racketeering.”

It seems clear that there is nothing inherent in their concept which suggests that racketeers prey only on businesses, on persons who are heavily involved in interstate commerce.

Indeed the respondent’s brief indicates and cites a good portion of the legislative history to show that many rackets are of essentially local character.

Therefore, limiting the Act to “racketeering” seems to have very little to do with a legitimate concern for state sovereignty.

Indeed the fact that the prosecution we have at issue here falls out five scope of the Act, as it was defined by the Court of Appeals, despite the vital federal interest, demonstrates the fallacy of assuming that limiting the Act to “racketeering” will somehow serves the purpose of screening out these cases which are less directly related to the federal interest.

William H. Rehnquist:

Ms. Beale, you said that many rackets are of purely local interest.

What did you mean by the term “rackets?”

Sara Sun Beale:

I was referring to the portions of a legislative history that are particularly cited and emphasized in respondent’s brief.

There are many problems in the legislative history which are so called “rackets” or “racketeering,” many definitions, but some of those with which Congress was clearly concerned, as shown by the legislative history seem to be of an essentially local nature.

And it seems clear that Congress took the working definition of the committee in 1934 and adopted that definition in the 1934 Act to make it suitable for use in a federal criminal statute and changed the definition in two primary ways.

The working definition was as an organized conspiracy to commit either robbery or coercion.

The committee added to that definition in the 1934 Act, the requirement that there be an effect on interstate commerce and they deleted the requirement that there be an organized conspiracy.

Thurgood Marshall:

Was there a considerable testimony by crossing the state lines turned to the debates on the Hobbs Act?

Sara Sun Beale:

There certainly were expressions of —

Thurgood Marshall:

Did Mr. Hoover testify on that reply?

Sara Sun Beale:

I am not entirely sure?

Thurgood Marshall:

My point is you say it was strictly local and I think you are wrong?

I think they were right about crossing state line.

Sara Sun Beale:

I think I perhaps I have confused two separate points.

One is that some…

Thurgood Marshall:

I am confused.

Sara Sun Beale:

No, one is that some things that were described in the legislative history as “rackets” were indicated to be areas of primarily local concerns, but as to what the Act has intended and the debates reflect it clearly as matters where there is some basis for federal jurisdiction where there is a crossing of state lines, where there was an institution such as the federally insured bank here, where there is a really substantial federal interest and certainly —

Warren E. Burger:

Good, this might be a good time to remind us that Justice Frankfurt once said that when the legislative history is ambiguous and confused to turn to the clear language of the statute.

I do not remember the name of the case.

Sara Sun Beale:

In fact I think that a close examination of the legislative history, really it makes a stronger case than that.

There is simply is other than the fact that they are just expressions of concern regarding racketeering, there is no showing that any limitation that was unstated in the Act to some definition of “racketeering” was intended so it is even a clearer case than that, which you make.

So we believe that since neither the legislative history nor any concerns for Federalism justify importing a vague concept into the Act, which will simply make more difficult its enforcement, without in any way screening out cases in which there is a lesser federal interest shows that there is no grounds for the construction of the Act chosen by the Court of Appeals and we therefore respectfully submit that its judgment should be reversed.

Warren E. Burger:

Mr. Hewitt.

James F. Hewitt:

Mr. Chief Justice and May it please the Court.

I suppose if (Inaudible) were to give a title to this Case he could title it, “The Lamentable Loophole” because I think that is what the Government is faced with.

When the Bank Robbery Act which came as the result of the anti-gangster program from the mid-30s, it was considered in conjunction with the “Racketeering Act” the title given to the predecessor of the Hobbs Act.

The ultimate statute that came out of the 1937 Amendments, involved a crime of bank robbery which included as an element, intimidation, the essence of extortion.

It required that this intimidation or the obtaining of the money to be from the person or presence of the bank officer and with the structure at that time with the bank laws in this statute, there was this gaping hole.

Unless the property was taken from the person or presence of a bank officer, it was not a federal bank robbery, nor would it be a loss in the FB taking or not trespassory in nature.

So we were left with one novel class of offence that was uncovered, Extortion not from the person.

The Government’s luck, there were three alternatives.

They could have gone to Congress and have that loophole filled, corrected by legislation.

They could find another statute that fits or they could leave the enforcement to the states.

Well, the Government has chose to take the second alternative and stretched commerce statute that was aimed at racketeering to fill the loophole and by doing so the inevitable consequence is a blanket intrusion into an area traditionally enforced by the states.

William H. Rehnquist:

When you say it was aimed at racketeering Mr. Hewitt, what do you mean by “racketeering”?

James F. Hewitt:

I think the working definition adopted by the committee pretty well expresses what “racketeering” meant in the 30s and I suppose what it means to most people at the present time, an organized criminal conspiracy, perhaps an ongoing criminal conspiracy not certainly an isolated event.

William H. Rehnquist:

Do you think anyone could be punished under this statute then?

James F. Hewitt:

As the statute is presently written?

William H. Rehnquist:

Yes.

James F. Hewitt:

I think an isolated robbery of a corner liquor store is a violation of the Hobbs Act if we give it the interpretation as by the Government.

The Yokley case was a stickup of the Kmart department store.

William H. Rehnquist:

But you are saying neither of those can be punished under the statute, are you not?

You agree with the Yokley?

James F. Hewitt:

Yes.

William H. Rehnquist:

Well, what I am asking you is if you take Yokley as the law and the decision of the Ninth Circuit, in this case as the law.

Do you think anyone can be validly indicted under this particular section in view of that if you have to read in the “racketeering” qualifications which to me is rather a Morpheus?

James F. Hewitt:

Yes, I think that they could be indicted and prosecuted and convicted if they were found to be engaged in “racketeering” and I see no reason why the definition could not be the definition offered by the Copeland Committee as the working definition.

William H. Rehnquist:

Even though it does not appear in the statute?

James F. Hewitt:

Even though it does not appear in the statute.

James F. Hewitt:

But Mr. Hewitt you considered the definition of Felony in the Gerone Case, the word Felony has the common meaning of a crime involving punishment in excess of the year, but the Court went beyond that to the legislative history and determined that it only pertain to felonies affecting National Banks.

Thurgood Marshall:

Mr. Hewitt, what is in the statute that where a criminal has to go to the legislative history?

James F. Hewitt:

Well…

Thurgood Marshall:

What hold that phrase?

James F. Hewitt:

I think it is the obvious breadth of the statute.

Thurgood Marshall:

The in terrorem effect?

James F. Hewitt:

Yes, Your Honor.

The obvious…

Thurgood Marshall:

Are we allowed to do that?

James F. Hewitt:

I think the Court must, because — I think what’s happened is that the evolution of the interstate commerce.

Thurgood Marshall:

Well, you say this is unconstitutional?

James F. Hewitt:

No, I am not saying that, Your Honor.

Thurgood Marshall:

Well, then why do we have to do this?

James F. Hewitt:

Because I think it is the duty upon this Court to make sure that there is no unwarranted intrusion or incursion into traditional state police power matters.

Now, when time…

Warren E. Burger:

Where do we find that limitation?

James F. Hewitt:

This Court made the suggestion in a number of cases —

Warren E. Burger:

Where do we find it, in the Constitution somewhere?

James F. Hewitt:

Just the Tenth Amendment, reserving the powers to the states, will certainly be a constitutional.

Warren E. Burger:

And you think the protection of National Banks was reserved exclusively to the States then?

James F. Hewitt:

Well, no Your Honor, National Banks is a different problem here.

Warren E. Burger:

Is it not what we have got here?

James F. Hewitt:

Well, we have a National Bank, but we do not have a National Bank that is protected by the national banking provisions.

We have a National Bank that is sought to be protected as an instrumentality of interstate commerce and it is clear that is not what Congress was thinking of in the 30s.

They were not aiming this legislation at National Banks.

They were aiming them at the Bank Robbery Act at National Banks.

This was aimed at interstate commerce as it was known in 1934 and 1937 and we know that in that era, in the new deal era, Congress was very sensitive about intruding into the state’s reserved powers.

William H. Rehnquist:

Well, how about the Fair Labor Standards Act, which was passed in 1938, would you say that was an example of Congressional sensitivity?

James F. Hewitt:

I think that was, right, there was certainly recognition and discussion on it of whether or not this would be an intrusion in the vested powers of the states and the resolution I think was made that this is an area where the Federal Government does have an interest.

My concern here is that what has happened is that the definition of interstate commerce has evolved with the operation of the de minimis rule to cover just about any instrumentality, including the corner grocery store.

Warren E. Burger:

Do we need to worry about the corner grocery store in a case where we are dealing with a National Bank?

James F. Hewitt:

Well, I bet Your Honor.

I feel safer if I were here with the Kmart department store in Sixth Circuit.

Warren E. Burger:

Or the corner liquor store?

James F. Hewitt:

Yes, well if the statute itself could be so broadly interpreted, and if the only limitation upon its application where there is a threat of intrusion and upsetting of the balance of Federalism.

The only limitation is the digression of the prosecutor that he is not going to push, he is not going to enforce the statute as broadly as it is read.

But he would choose to limit it so as not to intrude upon the vested interest of the States.

I do not think that is a sufficient protection to preserve that balance.

John Paul Stevens:

Mr. Hewitt, I have another problem with your reading in this exception for “racketeering”, if “racketeering” is a conspiracy to use intimidation to extort money or whatever the language was.

Why is it not that what this was anyway?

This is two people involved in this plan to threaten this person with violence in order to get money out of the bank?

Why does it not fit with right within the “racketeering” definition anyway?

James F. Hewitt:

Well, it was never prosecuted on that theory, nor was it —

John Paul Stevens:

Well, if (Inaudible) had violated the statute and you say no it does not violate the statute because it is not “racketeering” and then you describe “racketeering” in a way that I think fits these facts.

Or do I miss something?

James F. Hewitt:

Well, I think the concept of “racketeering,” if were to give it the meaning of the Congress obviously intended in the 30s, must be an ongoing operation more than an isolated transaction, kind of an organized criminal conspiracy as they define it.

Thurgood Marshall:

(Inaudible)

James F. Hewitt:

It may well be, it may well be that if these were evidence of the series of bank robberies by these same individuals, we might have some organized crime or racketeering that fits with that.

Thurgood Marshall:

Your observation would put a rather severe crimp on the federal kidnapping statute, would they not?

Usually you do not have chain store operations with kidnappings, you know as we did in the 30s.

Kidnapping is an isolated act, as this you can see it was an isolated act.

James F. Hewitt:

Well, I think the legislative history behind the kidnapping act has certainly pointed that the isolated transaction rather than any ongoing enterprise.

And certainly Congress had indicated, in enacting the kidnapping statute that it was intruding into what would be ordinarily state police power, but it may specifically find that because of the mobility of the kidnapper, the states were powerless to have proper —

Well it was not the same thing true about the loan sharking statute that you have sustained two or three years ago?

James F. Hewitt:

Yes and I think Congress could be very well similar to, in the loan sharking statute, find that racketeering has such an effect within interstate commerce that all racketeering maybe punished federally.

Is this further away from federal concern than loan sharking?

James F. Hewitt:

I do not think so.

This case?

James F. Hewitt:

Oh! This case?

Yes, this case, the statute?

James F. Hewitt:

I think the primary federal concern here is incidental only, that is, that it was a National Bank of which the federal government has primary power and interest.

Whereas in the loan sharking case you did not have any national aspect expect that it had some, as the dissenters thought, some very remote effect and impact on interstate commerce.

James F. Hewitt:

The Congress there Your Honor, made a finding that loan sharking does affect commerce, either under the bankruptcy clause or the commerce clause, that it was very difficult to show as an element of proof of connection with commerce to justify jurisdiction.

Therefore, one of the classes of activity in which the legislation was aimed and for us loan sharking, it was sufficient to show that the person was a member of that class and nothing more.

Congress could have done the same thing here, but they did not.

My suggestion is that the legislative history indicates very clearly that Congress was frankly talking about labor racketeering.

William H. Rehnquist:

But you have a quote here Mr. Hewitt, with a constitutional basis for this particular prosecution that there was an insufficient basis for connecting this particular extortion with the movement of goods in interstate commerce?

James F. Hewitt:

I do not think we can Your Honor, I think the predicate was laid in the course of the trial that most banks, in effect I almost say all banks, have a sufficient connection upon interstate commerce, sufficient connection with it under the depiction of assets there and many others.

William H. Rehnquist:

To me this is a better case for the Government than Perez, which I think frankly had I been on the Court I would have regarded it as quite doubtful in spite of the blanket Congressional findings, but here it seems to me you have factual findings by a trier effect?

James F. Hewitt:

That facet does not bother me, I agree this is a much stronger case than Perez.

Constitutionally?

James F. Hewitt:

Constitutionally.

But you are not making a constitutional claim?

James F. Hewitt:

No sir, I am certainly not.

I am simply saying that in the legislative history it is clear that Congress was talking in Hobbs Act and the Copeland Act before about extortion and robbery affecting interstate commerce.

During the same legislation, at the same time the legislation was being considered, they were protecting National Banks with the Bank Robbery Statute.

They left a gaping hole, and the question is whether that hole can be filled without doing violence to the considerations of Federalism and we suggest that it can.

Thurgood Marshall:

Just exactly what constitutional right will deny the Yokley?

James F. Hewitt:

Well, I am not really making a constitutional argument Mr. Justice Marshall.

Thurgood Marshall:

Well, what is the federal statute that was violated?

We are trying to find out what is the complaint here is that we can get to?

James F. Hewitt:

The complaints is, and as the Court below.

Thurgood Marshall:

I know you have a complaint but (Inaudible) because you have not complained?

James F. Hewitt:

I have certainly do.

Thurgood Marshall:

But I want to know something that we can address, well, I mean you say that it is not constitutional so it must be statutory?

James F. Hewitt:

Well, yes, it is statutory.

He was convicted of the statute that requires showing more than simply an Act affecting commerce under the de minimis theory.

Thurgood Marshall:

Your theory is that by some provision of the Constitution, you read into a statute something that is in the statute?

James F. Hewitt:

Well, I think that I am asking this Court to read into the statue a limitation that will prevent the statute from being applied, thereby intruding into the vested police power of the states.

Thurgood Marshall:

Well, then it seems to me it applies to show that if we do not do that, your client has at some constitutional provision violated.

Thurgood Marshall:

If not, why are you here?

James F. Hewitt:

No, I do not think there is any constitutional.

Thurgood Marshall:

You are saying it seems to me that unless we go with you, your client is being denied of constitutional right?

James F. Hewitt:

Well, I suppose I can always use due process then like you brought it up, but the constitutional right would be to be tried and convicted by a state court for an offence against the state that is not a federal offence.

Warren E. Burger:

What if the amount extorted or sum to be extorted was enough to render the National Bank insolvent, would you think then if the demand had been that large you would have a real impact on intestate commerce?

James F. Hewitt:

Your Honor I am not concerned with the impact on commerce.

I think there is a sufficient impact here to support constitutional jurisdiction.

Warren E. Burger:

Well, but then if there is a sufficient impact, does not that would be a federal concern and what seems to be the fulcrum of your argument that there is not sufficient federal concern here?

James F. Hewitt:

No, that is not my argument either?

Warren E. Burger:

I think the person wanted to be convicted by a state court?

James F. Hewitt:

That is right, he wants to be convicted for a legitimate crime rather than have the Federal Law twisted around to inject the Federal Government into an area where they do not belong, unless Congress has specifically indicated we wish to inject federal enforcement into this narrow area.

Thurgood Marshall:

Of course if you really can’t be tried and the state to it and the statute, right?

James F. Hewitt:

No, I do not believe it has Your Honor and he could not be tried by the State only because California has a penal code provision that prohibits it.

If he were prosecuted in the State, he could be prosecuted again in the federal government or in the State in which no provision was made.

Thurgood Marshall:

But he has been indicted in the state court?

James F. Hewitt:

No.

Thurgood Marshall:

And how long would the statute must take here?

James F. Hewitt:

Five years, Your Honor.

Are you familiar with the Caminetti Case, Mr. Hewitt?

Back in good many years ago in 1917, involving the Mann Act, where the legislative history of the Mann Act was very clear that it was directed at the so called White Slave Traffic, that where the literal terms of the statute covered, casual, fully non-commercial episode between Missouri and Kansas City, Missouri and Kansas City, Kansas I think and the conviction was affirmed here.

James F. Hewitt:

Yes, Your Honor.

Is it not the argument you are making is precisely the kind of argument that was rejected in that case?

James F. Hewitt:

No, and for this reason I think that it is fairly clear that Congress was directing the Mann Act at that isolated a single.

No, what was clear that Congress was directing it at commercialized advice, an interstate transportation so called White Slaves.

That was the, legislative history was crystal clear, but the literal terms of the statute covered this single, casual, non-commercial episode and this Court, in the opinion by Mr. Justice Day, I think he was affirmed the conviction.

James F. Hewitt:

Yes, I recall that case, very close to in many regards to this, but…

Maybe we are now in a different era?

That case, that decision had been greatly criticized actually.

James F. Hewitt:

I can recall the hypothetical been used to driving across the Fourteenth street Bridge with evil intent would violate the Mann Act at that time because Congress in the 30s was very sensitive to the considerations of Federalism.

The Justice Department at that time, statements were made by Attorney General Mitchell and later by Attorney General Cummings that they were concerned with the fiscal consequences of injecting the Federal Government into the States of assuming too much responsibility, fear that otherwise, if they injected themselves too greatly into state law enforcement that the states would themselves stop beefing up their police and stop chasing after gangsters of the gangster era.

James F. Hewitt:

So I think it is fairly clear that the Racketeering Act of 1934 was aimed at the primary federal interest of interstate commerce.

But certainly a secondary interest was racketeering and having defined “racketeering” as an organized conspiracy to commit extortion, we suggest that the Court could turn to that definition as the definition that Congress obviously was using when it was considering those legislations.

As suggested before in this Court in Gerone, looked at the legislative history to define felony as that term which used in Gerone.

But if as long as the goal as Mr. Justice Day’s opinion, it was thought by the Congress and accepted by the Court.

This was not an undue intrusion into State’s police power, has not the world become more complex and travel much swifter and all other things going opposite from the direction that you argue?

James F. Hewitt:

It certainly has and I would have to concede if Congress were to consider this bill today, Congress would probably find that its advantages to assume this role and this responsibility in the states and I am sure that they would enact a statute as broad as this if not broader if possible.

But I do not think that we can consider what their intent might be today under similar circumstances.

I think the question is, what the intent of Congress was in 1934 and 1937, and later in 1946 when the Hobbs Act amended the Antiracketeering Act, and I submit that there is no indication.

Well, I was speaking of the lapse of time between Mr. Day’s opinion and the late 30s?

That was the movement of all the legislation at that time, and suddenly the country discovered that automobiles and airplanes and a lot of other things had come on the scene and changed the whole pattern of criminal activity, especially if people could commit crimes near state borders and then slip across the next border.

James F. Hewitt:

And I think this reflected in the outgrowth of the 30s legislation to have the mobility and the change in the world and like I say I think Congress could now do this if it made that decision that it is going to enact legislation —

While they made that decision, did they not make that decision in the 30s?

James F. Hewitt:

No, I do not think in this particular statute they did. I think in some areas it was debated, resolved that they would.

A racketeering and gangster activities were such that the Federal Government had to protect Federal Banks, therefore the Bank Robbery Act came out.

As we pointed out in our briefs there were 25 or 30 pieces of legislation that grew out of that crime package.

The only one called a Racketeering Act was this particular statute.

The refill was aimed at racketeering.

Who calls it that?

James F. Hewitt:

Pardon?

Who calls it that?

James F. Hewitt:

Congress called it.

In the legislation itself?

James F. Hewitt:

Yes, that was the title of this particular bill.

In the language of the statute that.

James F. Hewitt:

The Racketeering Act.

No, in the language of the particular statute we are applying here?

James F. Hewitt:

The title?

No, I am talking about the statute?

James F. Hewitt:

Within the statute, no, of course they did not use the term there.

Perhaps Congress assumed that everyone would now they were talking about racketeering.

James F. Hewitt:

I concede as the Government points out that when they passed the recent crime bill they defined “racketeering” specifically.

They could have done all of that with this bill?

James F. Hewitt:

They certainly could have Your Honor, if they felt that —

And they did not?

We spoke with not what they could have done, but with what they did do.

James F. Hewitt:

Well in 40 years, I suppose Congress realized that they may have to define terms more specifically then they did in the mid-30s.

At that time they thought that probably there be no encouragement upon state police powers since at that time a direct effect to put into interstate commerce was required.

They were speaking in terms of the Poultry Racket and the shake downs that gave rise to Court’s decision of local 807.

They were not thinking that interstate commerce would mean upon a grocery store or a small business with just a de minimis affect on commerce.

And I do not think that there is any suggestion in the legislative history that Congress dreamed that this Extortion Act aimed at labor racketeering would ever be use to fill the loophole in the bank robbery statute and I think that is precisely what has been done here.

I do not think that relying upon the Justice Department to limit itself will solve the problem.

I think that the Court has to find whether or not if this statute being broadly applied would be an intrusion into state sovereignty.

I think the Court should give it a restrictive blast and prevent any upsetting of that delicate balance.

No further questions, thank you Your Honor.

Warren E. Burger:

Very well Mr. Hewitt.

Do you have anything further Mrs. Beale?

Sara Sun Beale:

Just a few brief points, the first is that, despite respondent’s arguments there is not one shred of legislative history that indicates intent to place an unstated limitation on this broad language to limit it only to some activities called “racketeering.”

The 1934 Act was officially titled and I quote, “An Act to protect trade and commerce against interference by violence, threats, coercion or intimidation”.

That word racketeering is not mentioned in either of the two Acts, it is not mentioned in the titles and we do not believe that fair reading of the legislative history indicates that it was intended to have some unstated limitations.

We think the fact that there is no definite definition of “racketeering” fully supports that point.

There is a definition of “racketeering” in Section 1961 of Title XVIII, that definition was adopted in I believe in 1970 and certainly it cannot be suggested that that definition was intended to apply in 1934.

The committee definition is clearly not what Congress intended to reach in either of the two Acts, the committee’s working definition, in view of the fact that the committee reports clearly reflect the fact that no limitations to conspiracy or to some kind of organized activity was intended to be required by this Act.

They purposely omitted that particular element and indeed I should note that the committee’s working definition was first publicly published in a report that appeared in 1937, detailing three years of its work.

That working definition does not appear in the committee reports which were put out to define the scope of the 1934 Act that we have in question here and they do not appear directly in connection with the legislative history of that Act.

It is simply a working definition of all of the work of a committee that introduced ninety some bills in 1934, bills relating to kidnapping, to mutiny in federal penal institutions, to interstate transportation of stolen property, as well as to the Act we had under consideration here.

Respondent seems to be arguing that what Congress ought to have done, is to have defined “racketeering” as it did in Section 1961 and then to have made that kind of activity punishable either generally because it found that all racketeering affects interstate commerce or only in so far that it affects interstate commerce, but Congress simply did not do that.

The legislative history does not reflect intent to do that and certainly language of the Acts does not reflect any such intent.

Furthermore the purpose, which respondent is suggesting a limitation of an Act is required; the purpose of keeping the Federal Government from intruding into the areas of state concern is in no way served by limiting this Act to racketeering.

It simply will not have the purpose of screening out cases where there is no very strong or very great federal interest, as it might be defined by individual Judges or Justices.

Indeed, we think as the questions indicated by the Court today, that this is a case of a very strong federal interest, but at least as the Ninth Circuit construes the Act with the racketeering requirement, this case falls outside of the scope of the Hobbs Act.

Sara Sun Beale:

So we think it is not a sensible limitation to limit the incursion on state jurisdiction and there is no support for it in the language or in the legislative history, which is detailed fully in our brief, thank you.

Warren E. Burger:

Thank you counsel, the case is submitted.