STIRONE v. UNITED STATES

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Argument of Michael Von Moschzisker

Chief Justice Earl Warren: Number 35 Nicholas A. Stirone, Petitioner, versus United States.

Mr. von Moschzisker

Mr. Michael Von Moschzisker: Mr. Chief Justice and may it please the Court.

We come here from the Third Circuit on certiorari, extremely proud that Chief Judge Biggs and Circuit Judge Hastie agreed with us in this three to two decision under the Hobbs Act.

The charge under the Hobbs Act was an obstruction or interference with interstate commerce by extortion.

The sufficiency of evidence of extortion is not here today, but just at the beginning I think I should say it was hotly contested and you should know that this alleged extortionist was paid by check and paid his income tax on it.

He's a labor leader accused of having shaken down a manufacturer by threatening him with labor trouble, but none of the labor leader's men worked for that manufacturer, none of the labor leader's men worked for his suppliers and none of the labor leader's men worked for his customers.

As I say, the defendant was indicted for obstructing or interfering with commerce between the states.

Our first point of our two points here today is that he was indicted for one obstruction of commerce, but the jury was permitted to convict him of another obstruction of commerce for which he was never indicted and our second point which is two-fold, involve the arguments that they admittedly purely local actions of the defendant had no sufficient effect upon commerce between the states.

The evidence showed that there was sand in the bottom of the Ohio River between West Virginia and Ohio and a company called the Ducane Sand Company dredged or dug it up and sold it from out of Ohio or West Virginia or both to a company in Pennsylvania called Ducane Slag Company.

Justice Charles E. Whittaker: Why does the (Inaudible) again?

Mr. Michael Von Moschzisker: Majority of the stock of one was owned by the other as it appears from page 68-A of the record sir, fifty-one percent I think.

Another company called Crane Brothers brought the sand up the Ohio River and then up the Monongahela River to the Brady Street Yard of the Ducane Slag Company in Pittsburgh, Pennsylvania and maybe once or twice to another place, but in general to the Brady Street Yard of Ducane Slag Company.

Ducane Slag Company, which had a lot of other customers also, sold some of this sand to a man named Rider, who was a manufacturer of concrete and the sand was sent over from the Brady Street Yard to another property of Ducane Slag at Belle Vernon, Pennsylvania where Rider did his business of manufacturing concrete on property owned by Ducane Slag.

There was no --

Justice Charles E. Whittaker: It is a batching plant.

Mr. Michael Von Moschzisker: A batching plant, yes sir, and -- what sir?

Justice Charles E. Whittaker: And that's at Vernon place.

Mr. Michael Von Moschzisker: At Belle Vernon the last place I named and no interlocking relationship in the ownership between the Rider Supply Company and either of the -- or in any other company in this case.

The indictment which appears at page 6-A or commences there is one that the Government construes differently than I do and therefore in this case I will take a moment to say what's in it.

The indictment, page 6-A, charges a part of the commerce between the States was the transporting of materials used in the construction of a steel mill and that this man Rider who is going to turn out to be the alleged victim of the alleged extortion had caused a movement of such material in commerce toward his concrete manufacturing plant in Pennsylvania and that the defendant had obstructed commerce and the movement of the aforesaid material in it by extorting $30,000 from Rider.

Now the defendant, none of whose men worked for this man Rider or his suppliers or his customers said that he had obtained a very profitable contract for Rider and that the checks on which he paid income tax was preventative commission.

He will notice in the indictment that Stirone, the defendant appellant was indicted for obstructing the receipt in interstate commerce of sand to be used in manufacturing concrete and that all he was indicted for.

So far what some people sometimes call a technicality, that's all they had any right to try him for it.

The only obstruction of commerce they had any right to try him for, was the obstruction of the receipt of sand, moving toward the concrete manufacturing plant.

Of course, it's a technicality of great importance and unless it continues to exist as an important part of our Law, it will just mean that the baron shouldn't have bothered to go to any meeting in the first place because he could only be tried for something he's charged with.

But over objection at page 51-A, and the objection was based on the ground of materiality which seemed to me would have been exactly the right ground, other objection, the Government at the trial of this indictment was allowed not only to produce evidence that the receipt of sand that they're receiving him might have been obstructed or interfered with, but was also allowed to produce evidence that that sand was used to make concrete and that that concrete was supplied by this man, Rider, to the prime contractor and was used by the prime contractor to help build a steel mill, the Pittsburgh Steel Company and then after the steel mill was built, it shipped hot -- it's called hot room sheet and strip metal from Pennsylvania to the automotive industry, principally in Michigan.

Justice William O. Douglas: What was this (Inaudible) in 51-A, you say?

Mr. Michael Von Moschzisker: 51-A when the Government started to produce evidence sir with regard to the steel mill, Mr. Casey who sat -- who sits here now said at the top of the page, “I'd like to have an objection to any question relating to the out of state shipments so far as Pittsburgh Steel is concerned and then he said it was kind of materiality.

When the Judge, trial judge short --

Justice Felix Frankfurter: In an out of state (Inaudible) the Court for the popped up, was there an attempt to show his statement?

Mr. Michael Von Moschzisker: Yes sir, and perhaps --

Justice Felix Frankfurter: But you had helped to turn interstate commerce and that is charged in the indictment.

Mr. Michael Von Moschzisker: And later on, sir, later on, I believe and contended it didn't show it anyway but at the moment that's what I'm saying.

Thank you.

Mr. Michael Von Moschzisker: When the trial judge charged the jury, and this comes at pages 287-A and 288-A, the trial judge charged the jury that they could find if they chose the necessary obstruction or interference with commerce either with regard to sand, what we've all come to call the receiving end, or in the alternative they could find it with regard to steel products at the end where they were being shipped out after the steel mill was finally erected out of the concrete into which the sand went.

We say that that was very lacking in any element of due process of law and that if anything went to this jury at all, it should only have been an obstruction or interference with sand at the receiving end.

The Government says that the matter was not made an issue at the trial.

I can only answer that questioning if we only know of one way to plead the general issue and that's by a plea of not guilty and we've entered a plea of not guilty.

Justice Felix Frankfurter: Would you have answered the questioning about the charge?

Mr. Michael Von Moschzisker: There -- at the end of the trial, at the end of the charge, Mr. Casey, the trial counsel, made an objection with regard to the judges charged about the steel products and I must say he made that objection in such a general way that I cannot pinpoint it as having included the argument I'm now making.

But his objection on the grounds of immaterial -- on the grounds of immateriality with the evidence offered, I think it does support my argument.

And this --

Justice Felix Frankfurter: The real concept who was the trial judge?

Mr. Michael Von Moschzisker: Sir?

Justice Felix Frankfurter: Who was the trial judge?

Mr. Michael Von Moschzisker: His name was Judge Miller.

Justice Felix Frankfurter: On context, that is the detention has been brought, he would have suggested how now we read the indictment or see I can't do that on contrary, wouldn't made that distributive that he wouldn't have withdrawn this (Inaudible) we don't know?

Mr. Michael Von Moschzisker: We do not know.

Justice Felix Frankfurter: Would you say that he allowed in evidence (Inaudible) improperly because of what he had done in the indictment?

Mr. Michael Von Moschzisker: And we do know that at that time he would have won -- won because the objection by Mr. Casey had been on the ground of lack of materiality.

So at least at that time we know what he did.

Justice Hugo L. Black: Would you mind explaining to me the place in the indictment that you rely on that standing just the same?

Mr. Michael Von Moschzisker: I don't think sir I can point to just one place but looking at page 6-A, of course in the first paragraph the one numbered one, it is said that a part of the interstate commerce of the United States has consisted at the transportation between the several states of materials and supplies for use in the making of ready mixed concrete.

Now they never mention in their indictment, any other part of the commerce between the States, that's the one part they do mention and then over on page 7-A in the paragraph numbered four just about 60% of the way down that paragraph four, I find the words and of course I don't read the whole paragraph, I find the words and the movement of the aforesaid materials and supplies in such commerce.

Justice William O. Douglas: Replicate the cement problems today.

Mr. Michael Von Moschzisker: Well the only aforesaid materials and supplies that have been aforementioned in the previous part of this indictment were materials and supplies for use in making concrete that could have been cement.

It could also have been sand and if the judge had submitted a cement issue to this jury I don't think I'd be here complaining about it, I am complaining about the steel product itself.

Justice John M. Harlan: What about paragraph two of the indictment and the --

Mr. Michael Von Moschzisker: I think paragraph two is entirely consistent with my proposition that I urge here and I thank you very much for reminding me of it.

There again for the purpose of performing the contract causing those supplies and materials to move in interstate commerce for the contract they had to perform was a contract to manufacture concrete.

Justice Charles E. Whittaker: At least then it is referred to that commerce in steel --

Mr. Michael Von Moschzisker: It certainly did not.

Now the Government says in their brief that I'm warmed on this argument anyway because they say it was a question of law for the trial judge and then they cite a lot of cases but of course I almost don't need to stand here and say, that when you check the cases you'll find that the cases don't say that the factual question of whether commerce was obstructed was for the judge that's always for the jury but the cases do say that it's alright for a judge to tell a jury that if they find certain facts, then he tells them as a matter of law, those facts do constitute an obstruction of commerce and only in that sense is this a question for the Court instead of for the jury and we say the fact of whether or not the shipment of steel products was interfered with, was a fact for the petit jury but only after an indictment charged of prima facie and only after a grand jury made a prima facie finding of the commission of that felony.

Justice Tom C. Clark: Well the real question is, isn't it that's the scope of the allegation of the indictment, isn't it?

Mr. Michael Von Moschzisker: Yes sir.

Entirely.

Justice Tom C. Clark: Of course that's for a judge for the judgment to go (Inaudible).

Mr. Michael Von Moschzisker: Correct.

Now --

Justice Charles E. Whittaker: Would you mind telling me, I didn't see it, (Inaudible)

Mr. Michael Von Moschzisker: There were exceptions taken to the charge and as to the part of the charge which dealt with the shipment of steel products into commerce there was an exception taken in one of those speed words.

Your Honor, I accept to what you said about the steel product.

I say I can't stand here and say that the exception was couched in such language as I've been trying to use here to make my point clear.

Justice John M. Harlan: What page is that on?

Mr. Michael Von Moschzisker: That's on page 300-A.

Justice Tom C. Clark: Aren't you (Inaudible) first paragraph at the bottom of the page.

Mr. Michael Von Moschzisker: Of what Sir?

Justice Tom C. Clark: 300-A

Mr. Michael Von Moschzisker: Yes.

Justice Tom C. Clark: An expert charge of that Judge Bennett (Inaudible)

Mr. Michael Von Moschzisker: That's what I'm trying to remember.

I construe it as counsel on the spot, it was said a little while ago, trying to make the exception that I'm make here but --

Justice Tom C. Clark: Yet incomplete?

Mr. Michael Von Moschzisker: But not as completely as I make it here, as to the steel after he mentioned the sand.

Now the other question in the case involves whether this alleged interference was the purely local activity of manufacturing concrete had such an effect on commerce between the States that it could be the subject to this prosecution and of course I should start with the fact, I know perfectly well that by scholastic reasoning involving what somewhat -- someone called abstract notions, everything affects commerce.

And that the statute in this case is very sweeping at what it tries to reach and probably reached about as much as any statute one could possibly pass but I still claim that the effect upon commerce in this case was not only too distant, but also too unsubstantial.

That has two aspects.

First as to the sand, you remember that Rider, the alleged victim of this extortion, was in Pennsylvania and that in Pennsylvania, he purchased the sand from Ducane Slag Company which was also in Pennsylvania which had lots of other customers and that Slag Company was the one who purchased sand from Ducane Sand Company in another state.

Now, the theory by which the trial judge and by which today the Government says that extortion directed against anyone as remotely connected with commerce between the States that this man Rider can be tried in federal court appears at pages 306-A and 307-A of the record where the Trial Judge in his opinion frankly said, starting five lines up from the bottom of 306-A.

That statement was based upon a premise that a deliberate act which tends to prevent Articles from being used, once they have reached their destination, after being shipped in interstate commerce, then it is up the stream of commerce and delays and obstruct and defect interstate commerce as surely as though the same act had cut off the supply at short.

So what they're really contending here today and they cite United States versus Sullivan as they contended in their brief, what they're really contending here today is that an extortion or a robbery because the Hobbs Act covers robberies also, an extortion or a robbery which would prevent a corner druggist from selling something to a customer which had originally come from another state is an extortion or robbery which can properly be made and has been made the subject of federal jurisdiction.

Well if that's so, you won't have anymore days like today because J Edgar Hoover isn't going to have time to catch anymore spies.

Justice Charles E. Whittaker: Well that's our first rule in here and --

Mr. Michael Von Moschzisker: Sir?

Justice Charles E. Whittaker: -- that there was evidence of direct shipping from the Slag Company in West Virginia or Ohio to this (Inaudible), was there?

Argument of Wayne G. Barnett

Mr. Wayne G. Barnett: There was evidence of direct shipment from the company in West Virginia, which happened to be the Sand Company two premises of the Slag Company on which Rider had also put his batching plant.

Justice Charles E. Whittaker: Consigned to Rider?

Rebuttal of Michael Von Moschzisker

Mr. Michael Von Moschzisker: Some evidence of some shipments consigned to Rider but ordered by Slag Company.

Justice Charles E. Whittaker: Would the fact, the latter fact be consequential.

Mr. Michael Von Moschzisker: I think that the latter fact puts me a little bit worst off than I would be otherwise but it seems to me not so badly off as to bring this case within the power of Congress.

Justice Charles E. Whittaker: Would not the evidence of direction from the sand company in West Virginia to the contactor in Pennsylvania for disuse the commerce, interstate commerce, direct commerce?

Mr. Michael Von Moschzisker: The-- when it would-- when ordered by Ducane Slag and shipped to Rider, it seems to me that the shipment would of be direct commerce.

If what this seems to me in answer to Your Honor's question that even there, the effect of an extortion as in this case or as in or of a robbery as it might be in some other case, upon that commerce is still entirely too remote to be controlled by the Congress power.

Justice Felix Frankfurter: Are you -- are you arguing -- are you arguing that this is outside of the Commerce Clause or are you arguing the scope of the Hobbs Act really?

Mr. Michael Von Moschzisker: I thought of that in train all the way down here and it seems to me, I'm really arguing both that I think Congress in the Hobbs Act tried to go almost as far as they could go under the Commerce Clause, I don't think that either the intent of Congress whether the Constitution reaches this.

Justice Felix Frankfurter: Almost, did they -- I mean if you see what Congress almost been doing what is asked, there might be a (Inaudible) this Court would prevail.

Mr. Michael Von Moschzisker: Well you see what troubles me there.

The Government says that Congress tried to go as far as they could but forgetting robbery for the minute, they only tried to cover extortion and they defined extortion as the obtaining of the money.

So whoever, by obtaining money, interferes with commerce, they reach.

It seems to me that Congress could even have gone with it further and could have said whoever by obtaining money or by threatening to pull a strike in effect interferes with commerce or threatens to interfere with commerce in violation of this Act.

Now it so happens they didn't say that.

They just think to find extortion in the narrow sense of receiving money so I think that one way they went as far as they could but only with regard to a very limited type of extortion, but I just can't answer the question yes or no.

Justice Felix Frankfurter: Yes.

It is just not just easy question to be answered in the right way.

Mr. Michael Von Moschzisker: A question to where I wouldn't be -- I would be honored to be here.

Incidentally, the amount of the extortion was not directly geared to the amount of sand that came in.

It was I would say indirectly geared to it.

The alleged extortion was 50 cents on every cubic yard of concrete so of course you could work it out in relationship with the sand by one step but you wouldn't need that one step.

Justice Felix Frankfurter: What – what -- may I ask you?

What change did the definition in Section A -- Section 1 (a) of the Forty-Fifth Amendment make the original 24 (a)?

(Inaudible)

Mr. Michael Von Moschzisker: I can't say that I recall none.

Justice Felix Frankfurter: Steel trade of commerce is used in it defining it to its own.

All of the greater congruent in United States has constitutional jurisdiction that is almost more embracing, more extensive than the Forty-Fifth Amendment which merely says, all other commerce on which the United States has jurisdiction in the original act it would have been constitution (Inaudible) I can't imagine it.

Mr. Michael Von Moschzisker: I think both times they were trying to reach as much commerce as they could but not as much extortion as they perhaps could.

Now on the point that I've been arguing--

Justice Felix Frankfurter: I'm a little troubled there, let's say it reached over the commerce (Inaudible) and extortion wasn't in any restrictive meaning to powers, commerce, extortion is extortion whether it's intrastate or a proportion of the political commerce.

I don't see what fallacy get out of (Inaudible)

Mr. Michael Von Moschzisker: That's why sir, I didn't try to bring that out except in response to a question from the Court.

I don't think that the limited definition of extortion by virtue of its limits helps me or hurts me.

I just thought I should mean that it is there.

Now on the question of whether there was a sufficient connection between the alleged extortion and the receipt of the sand, I should report that that's the one question in which Chief Judge Biggs and Circuit Judge Hastie did not agree with us.

The Court below was unanimously against us on that point, but those two judges were with us on the point about the man being tried for something he hadn't been indicted for.

And those two judges were also with us or if one Chief Judge and one other judge were also with us in the (Inaudible) which is that if I must assume as I hate to do, that it was alright to submit the issue of interfering with the shipment of steel products to this jury, if I have to assume that, then I say that under the decisions of this Court, the shipment of those steel products from a plant which had been built partly out of concrete by a prime contractor for whom Mr. Stirone -- pardon me, for whom the subcontractor who was the victim of the alleged extortion has made the concrete is again a matter in which the relationship between the alleged extortion from Rider who made the concrete or rather mention the prime contractor who made the factory with somebody else placed machines that makes steel products that went to somebody else from Detroit was again not close enough in its relationship to interstate commerce to use one part of Mr. Chief Justice Hughes' phrase and as well as not being close enough, it wasn't substantial enough in its relationship to the shipment of the steel product.

For one reason, as Judge Hastie points out, there's nothing to show that there were plenty of other resources of concrete.

This is no question of a monopoly as in your Sherman Act cases and when supported properly going to authorities.

I should add one more thing that at the time of the extortionate demand, no sand was being received directly from other States.

It was coming in to the Brady Street Yard of the Slag Company, was being unloaded and piled up there, mixed with other sand from Pennsylvania and then eventually sent away by railroad car to Rider, the alleged victims at the time of extortionate demand.

Later on, the sand moved in the way I told Mr. Justice Whittaker when I responded to him.

Thank you.

Chief Justice Earl Warren: Mr. Barnett.

Rebuttal of Wayne G. Barnett

Mr. Wayne G. Barnett: Mr. Chief Justice, may it please the Court.

As counsel for the petitioner says there's no question here about the fact of the extortion.

We're concerned only with the commerce element.

He's giving you most of the facts and I would to like to clear up a few details particularly in the sand commerce.

The relationship of the companies I believe Mr. Justice Whittaker asked about, the sand, the Slag Company owns 49% of the sand company which does the dredging.

The other 51% is owned by the towing company, the Crane Brothers who own the tugs that handle the barges for both companies.

It's true that the sand was sold by the dredging company to the slag company and not directly to Rider.

That was by the relationship between those two companies, all of their production was taken by the slag company and also by the terms Rider's lease, he was required to take his sand from the slag company.

So the slag company did buy the sand from the dredging company and paid for it and then charged Rider for the sand that was directed to go to him.

Now the physical movements however of the sand were in most cases direct from the barge from the dredge in West Virginia to Rider's plant in Pennsylvania.

The barges were taken upstream by the towing company, pass Brady Street which was the plant of the slag company in Pittsburgh and then up another 25 miles to Rider's plant.

Sometimes they were docked temporarily in Pittsburgh at the Brady Street Yard and thereafter picked up by the towing company and taken on upstream but they were never unloaded nad we don't think it makes any difference that the barges did stop temporarily at Brady Street but that some of them did.

Also, as to the matter of the shipments at the time of the extortionate demand, I think it is probably true that at that time the shipments were by rail that however was because the dock wasn't finished at Rider's plant, that was finished in October of 1951, the contract went on until well in the 1954 when the extortion continued.

On the steel commerce, the only fact that was necessary to establish was that the steel mill upon completion would sell its goods in interstate commerce and that testimony was given.

Now --

Justice Charles E. Whittaker: That testimony was -- was before that when the steel mill was built for good devoters and manufacturers to use, which we would like to (Inaudible) solely different to state crime -- and then it was suggested.

I'm just --

Mr. Wayne G. Barnett: Well actually at the time the testimony was given the mill had already been built and in fact part of the mill was in operation before the construction job was completed as what was testified in about the actual shipment.

Justice Charles E. Whittaker: I know but would not the extortion would be as of this is the (Voice Overlap)

Mr. Wayne G. Barnett: Yes.

Yes.

Yes well there is no dispute about what this plant was going to be.

It was to be a hot strip rolling mill making sheet steel and I -- I dare say there's no dispute that sheet steel is used primarily in the automobile industry than the (Inaudible) industry.

Justice Charles E. Whittaker: That's all been included.

Mr. Wayne G. Barnett: Yes that is right but there's no doubt of that expectations generally prevailing.

That commerce did not then exist I agree.

Justice Charles E. Whittaker: Is that enough then to constitute one who works on that confidently that constituted at present with obstruction commerce.

Mr. Wayne G. Barnett: That essentially was the position of the dissenters in the Court of Appeals that it did not argue is that its -- it certainly is a sufficient effect to bring it within the broad scope of the commerce power.

The dissent below relied primarily on Fair Labor Standards Act cases which are limited to persons engaged in commerce and it maybe that that the distinction between existing commerce and future commerce is relevant to such a statute, we think it is not the statutes extends to -- affecting in anyway or degree commerce.

Certainly the future effect is substantial even though it is not present.

A delay in the construction of the steel mill necessarily would cause a delay on the beginning of the shipment of the steel in interstate commerce.

And certainly I think the national interest is as great in promoting an increase of production capacity as it is in avoiding interference with current production.

Justice Felix Frankfurter: How would you know a lot of pass in order to form an allegation?

Mr. Wayne G. Barnett: Well I think well perhaps, the best way to win this case I think is to sustain both of the alternative instructions.

Justice Felix Frankfurter: I'm following you, I follow your resentment but you talked about all this interest we have in to commerce about the incident so we better get down to the allegation of the invite?

Mr. Wayne G. Barnett: Well yes, on the variance point.

Justice Felix Frankfurter: Something like that.

Mr. Wayne G. Barnett: Yes well we think indeed that it was in fact a little thing, we do -- a large part on the variance issue, a large part of petitioner's argument is that this were two different crimes that he was charged with the crime of obstructing sand commerce and was possibly convicted for the crime of obstructing steel commerce.

We're a little surprised to hear the argument that we might be able to indict Mr. Stirone four or five times if we could show also that the obstructed commerce in cement.

Certainly in our view, a single act of extortion is but one crime.

It makes no difference how many ramifications on interstate commerce it may have.

We think therefore that the question comes down to one prejudicial variance between the facts alleged and the facts proved.

Justice Charles E. Whittaker: Does that-- does the sacrament of fact prove or (Voice Overlap)

Mr. Wayne G. Barnett: The variance between those.

Justice Charles E. Whittaker: Or to the one (Inaudible) then on the other side the facts prove with the chart to support that the (Inaudible) you find in our law had still come was obstructed.

Mr. Wayne G. Barnett: I -- I include that sir, yes.

Now the indictment does emphasize we agree on the sand commerce theory as a way in which commerce was affected but thru that channel.

In terms of the allegations of facts, however, it does specifically allege that the sand was to be use for concrete for the steel mill.

So the fact of the destination in concrete was alleged.

The only fact that was not alleged is that the steel mill which ships steel in interstate commerce.

Now that is a matter, I think, of common knowledge and it's hard to see how that might have prejudiced the defendant and the record I think shows that there was no prejudice.

That testimony that steel have absolutely shipped in interstate commerce was offered on the second day of the trial.

The trial went on for almost two weeks after that.

At no time did the petitioner claimed surprise or asked for continuance to make a defense to that testimony and I think the reason was there is no answer to the test --

Justice William J. Brennan: Did you see the text?

Mr. Wayne G. Barnett: No, yes he did object to the admissibility on grounds of materiality.

Now --

Justice Hugo L. Black: Did you cite Paul against Arkinsas?

Mr. Wayne G. Barnett: No, we do not Sir; I think that we should have.

I do not -- I'm not aware of the case.

Justice Hugo L. Black: The case where we held (Inaudible)

Mr. Wayne G. Barnett: Oh your Honor--

Justice Hugo L. Black: Does it state that in time it has to go on contempt?

Mr. Wayne G. Barnett: Oh yes--

Justice Hugo L. Black: Did you know that?

Mr. Wayne G. Barnett: Indeed it is, we would agree and if these are two crimes, we would -- we would agree that the judgment should be reversed.

Justice Hugo L. Black: Certainly a different one.

Mr. Wayne G. Barnett: I'm sorry, sir.

Justice Hugo L. Black: Couldn't there be any difference from (Inaudible)

Mr. Wayne G. Barnett: No, in our view, the scope of the crime or the acts of extortion and the impact on commerce must be proved, we agree.

Justice Hugo L. Black: That's the way the Federal Government gets secu --(Voice Overlap).

Mr. Wayne G. Barnett: Yes that is the jurisdiction of fact.

Justice Hugo L. Black: Otherwise it would have to be emphasized in the statement.

Mr. Wayne G. Barnett: That is right.

That is right.

Justice Hugo L. Black: That's all (Inaudible)

Mr. Wayne G. Barnett: But --

Justice Hugo L. Black: The State rather just to have it's extortion in that sense?

Mr. Wayne G. Barnett: I have not checked that these venue statutes -- but are-- it is almost universally a state crime and I think we will be sure it is Pennsylvania but I agree that --

Justice Hugo L. Black: Nor the (Voice Overlap) of the Federal Government can get it on this very thing you say of enmity?

Mr. Wayne G. Barnett: Yes well I -- nothing is immaterial and we must prove it.

I -- I do not -- I do not think it is essential to allege the precise way in which interstate commerce is affected.

We did alleged one way I agree and only to suggest the facts towards which we -- we tried to show in other briefing.

Justice Charles E. Whittaker: Those points out to a fallacy, you didn't have to allege by what means the commerce (Inaudible) aren't you stuck with it?

Mr. Wayne G. Barnett: well I would agree that that is true if the defendant is prejudiced, if he has mislead in preparing his defense because of that.

But it became clear in the morning of the second day of the trial when we were also relying on steel commerce, we introduced the evidence then and it – it – I'll come back in to the question about the objection, he did object on grounds of materiality and in the colloquy that followed, he argues that steel commerce is too remote and therefore it is not material.

Now just a materiality to recover the water front and it--

Justice Hugo L. Black: What is in charge here towards the company is to keep an eye on things once the (Inaudible) does that make any difference in your evidence?

Mr. Wayne G. Barnett: I think probably it would not accept in terms of misleading the defense.

Now we have to define the acts that constitute the defense I agree and -- and I'm assuming that we alleged identifying facts of the acts of extortion.

Justice Hugo L. Black: But you have to prove beyond a reasonable doubt that Rider come out of it wouldn't you say (Inaudible)

Mr. Wayne G. Barnett: We would have to prove beyond a reasonable doubt that the facts upon which interstate commerce is based, yes sir.

Justice Hugo L. Black: But I understand a bit in this security offer they may have made a mistake that they found beyond a reasonable doubt that (Inaudible) guilt.

Mr. Wayne G. Barnett: Yes sir.

Yes sir.

And I don not -- my point is simply that any-- any failure to specifically allege the steel commerce in indictment and so it's going to prove that variance did not go to the definition of the crime or -- or to the -- it remained a single crime and this was only a different theory to sustain jurisdiction and that the variance did not in anyway prejudiced the defendant.

Justice Felix Frankfurter: But it may prejudice in the sense of money we can't argue to what he is intending because no matter how far reaching scope you give to the Commerce Clause, there are limits, the kind of limits that that Judge Learned Hand pointed out (Inaudible) the case of the law that everything isn't-- everything is related to everything else and therefore that's agreeing to the commerce.

Mr. Wayne G. Barnett: Yes.

Justice Felix Frankfurter: And he might have argued that the shipment of steel is too remote as of the remoteness that qualifies all (Inaudible)

Mr. Wayne G. Barnett: Yes.

Justice Felix Frankfurter: Like the Gunny -- the argument in Gunny case, there are limits in connections we've made for purposes of law.

It amounts to purposes of (Inaudible) blunt equal parlay in that it isn't the concern and yet we like to rely on it and he says it isn't in gear that's what I think it is meant particularly by the acts of the past (Inaudible) who is nowhere this relates to commerce.

Mr. Wayne G. Barnett: Yes-- Yes well I agree he made the objection that it is too remote all the way through he has argued that all the time.

Justice Felix Frankfurter: No, no, no (Voice Overlap) but this stands on that 90 pieces, you said evidence of and I can make an argument either to the Court which is impurely that this is the kind of abuse (Inaudible) and if that is not charged in the indictment notice has given to him that he needn't need it then you say, oh well he -- what difference does it make it comes within the Commerce Clause or he doesn't come --

Mr. Wayne G. Barnett: Well no and -- and it also comes in to the trial early in the stage that has ample opportunity to meet it and he has in fact all the way through I think had a full opportunity to argue that issue of law but I don't take the variance from the indictments as material, it did not affect the opportunity to meet the evidence.

Not the legal arguments.

Justice Felix Frankfurter: We must write the variance and it's fortunate which is hard, there is such a thing as not allowing (Inaudible) could loose and how the-- how they formulate and charge and it's one thing to say if you need a (Inaudible) it doesn't matter which is kind of good.

It's 12 o'clock in the afternoon, it's 10 o'clock in the morning or two people and three people but even for some reason there was a particularity of this technical charge.

Then you say, oh well we can disregard that because if it relates to commerce clause (Inaudible)

Mr. Wayne G. Barnett: But let -- let me but it is my position to this was not in fact prejudiced by the fact that at no time did he object.

Justice William J. Brennan: Meaning that is right.

And that protection has never (Inaudible)

Mr. Wayne G. Barnett: That is right, sir.

That is right.

Justice William J. Brennan: That is what he says some of the work..

Mr. Wayne G. Barnett: That is right.

No, I think in any words, there's a reason to be construed --

Justice William J. Brennan: If you use the word --

Mr. Wayne G. Barnett: Better.

Immaterial, yes sir.

Yes.

Justice Charles E. Whittaker: You mean that (Inaudible)

Mr. Wayne G. Barnett: Well I think not sir.

I think it says something very different that the effect is too remote.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Wayne G. Barnett

Chief Justice Earl Warren: Number 35, Nicholas A. Stirone, Petitioner, versus United States of America.

Mr. Barnett, you may proceed with your argument.

Mr. Wayne G. Barnett: Mr. Chief Justice, and may it please the Court.

Before returning to the question of the effect to the variance, I would like to clarify the distinction I made yesterday in speaking of the steel commerce issue between the scope of the Hobbs Act and the scope of the Fair Labor Standards Act.

I pointed out that the -- the dissenters in the lower court had relied upon Fair Labor Standards Act cases in support of the view that only in effect upon present commerce instead of future commerce would bring it within the act.

I noted that the Fair Labor Standards Act cases are -- that these were the so-called new construction doctrine cases were based upon an interpretation and application of the specific standard of that Act, the application to persons engaged in commerce.

And I noted that whatever the validity of the distinction for that purpose, it would not be applicable to an act which applied to activities affecting commerce.

Now when I'm saying that, I don't mean to imply the distinction is valid under the Fair Labor Standards Act and in fact the Court has at least greatly limited if not over -- overruled the new construction doctrine there.

In addition there's a second branch of coverage in the Fair Labor Standards Act to persons engaged in the production of goods for commerce?

And in applying that, the Court has in fact applied it to those engaged in operations which lead towards the future production of goods.

The case to which I refer is Warren-Bradshaw which is decided in our brief at -- at that page 34.

There the Act was held applicable to an independent contractor engaged in preliminary drilling of oil well.

With his equipment he could only go down to a stated depth, which would be short of the oil sand and the owner thereafter engaged other persons to bring in the well.

Nevertheless, the employees of the contractor doing the first stage of drilling were held to be covered by the Fair Labor Standards Act because their operations were necessary to the future production of oil and we think the relationship of the construction of the steel plant's future production of steel is virtually the same and it may well be that the Fair Labor Standards Act would apply to Rider's employees.

I don't argue that case here, but in relying on the broader scope of the Hobbs Act, I don't mean to imply that the -- the Labor Standards Act would not apply.

Returning to the variant point, I would like -- if I may briefly to outline our position, I think there are really two questions.

The first is whether he was in fact convicted for a crime for which he was not indicted, whether there are two crimes and if that is so, as I said yesterday, we would agree that the judgment should be reversed.

In our view, there is very little question but that the extortion was one crime and the effect on commerce is simply of the jurisdictional element to make -- bring it within the federal jurisdiction.

And in fact, we think the indictment would not be fatally defective if it did not allege at all the specific channels though which interstate commerce was affected.

Now, it is true here as Mr. Justice Whittaker pointed out that we did allege one of the means by which that effect was felt and that might in a particular case work to the prejudice of the -- of the defendant by misleading him as to what he has to prepare for.

Justice John M. Harlan: Do you think that in bringing this indictment (Inaudible)

Mr. Wayne G. Barnett: Well, as I said yesterday, we do allege the fact that the concrete goes into the steel mill.

But I have to concede that we do not allege the fact that the steel products would go into interstate commerce, and in that sense we have not alleged the full -- all of the elements that we have to prove on that.

It may be that the act was noticed.

Justice Potter Stewart: Excuse me.

Mr. Wayne G. Barnett: I'm sorry.

Justice Potter Stewart: I beg your pardon.

The movement of the concrete itself was intrastate, wasn't it?

Mr. Wayne G. Barnett: Oh yes, it was sir.

His plant was located just a few miles from the --

Justice Potter Stewart: And the charge in the indictment alleges that the -- that it was interstate in effect.

Mr. Wayne G. Barnett: Yes, yes.

Justice John M. Harlan: I notice in the Bill of Particulars, the one in Number 1(a) which inquires as to what the interstate commerce was that I can't find that that was -- an answer to that was given, the motion to develop particulars requires as to that the Bill of Particulars themselves doesn't seem to cover it.

Mr. Wayne G. Barnett: I -- I -- as I remember the Bill of Particulars was directed -- I -- I think the questions were directed towards the sand commerce and I think you're quite right.

Justice John M. Harlan: 1 (a) says, “State where the interstate commerce referred to in paragraph 2 originated and where it ended.”

Mr. Wayne G. Barnett: Yes, yes.

Well it doesn't say, “The interstate commerce it was referred to in an indictment was the sand commerce.”

I -- I'm not denying that and that was -- that was true up until the trial.

I don't think at anytime prior to the trial had we specifically spelled out the steel theory and it -- it brought us a -- a new theory introduced at that point and in that sense perhaps is -- was error, but I -- I think as rule 50 says the Court should notice only a prejudicial error.

Justice William J. Brennan: I gather than it's as Justice Harlan did you say that question 1(a) was or was not answered?

Mr. Wayne G. Barnett: It was answered only in terms of the sand commerce.

Justice William J. Brennan: Well I see -- but the actual answer is not in the record, is it?

Mr. Wayne G. Barnett: Oh, I'm sorry.

Justice William J. Brennan: I've noticed --

Mr. Wayne G. Barnett: I think it was not in the --

Justice William J. Brennan: It seems to start with the answer to question six at page 112(a).

Mr. Wayne G. Barnett: No, that was not required to be answered.

I -- I -- I'm wrong on that.

It was only question six on, I think it was, that were answered in the Bill of Particulars, but that issue has not been raised here.

Justice John M. Harlan: I suppose you can read where it would say it's referring only to sand because it refers to paragraph 2 of the question.

Mr. Wayne G. Barnett: Of the question, I think that's probably right because I say -- that the -- we were not directed to answer that.

I know -- I don't know why the -- the motion was limited but that is not an issue here.

But it -- but it is true that -- that we do not -- specifically raise the steel theory until the trial, other than alleging the fact of the destination -- the construction of the steel mill.

Justice William J. Brennan: Or what about this -- it there any significance to show Mr. Barnett to be attached to the concluding words to paragraph 2 of the indictment and more particularly from outside the State of Pennsylvania into the State of Pennsylvania, that would not be pertinent to steel, would it?

Mr. Wayne G. Barnett: Well, I can make it pertinent by the raw materials used in steel production, but I -- I think I have to agree that that alluded to the sand commerce and -- and not to the steel commerce.

Chief Justice Earl Warren: Mr. Barnett, suppose there was not sufficient evidence for any of the jurors to find that the sand was in commerce, do you -- is it your contention that the man should still be convicted on the steel theory?

Mr. Wayne G. Barnett: Yes, sir.

Yes sir that as -- as -- we do not think that you have specify in the indictment.

Chief Justice Earl Warren: Suppose six -- suppose six jurors were of the opinion that -- that the sand was not in commerce and six jurors were of the opinion that the steel was not in commerce but together they -- they found him -- found him guilty.

Mr. Wayne G. Barnett: I -- I -- I'm not -- I'm not sure of the answer to that -- whether the jurors are supposed to be unanimous on alternative instructions whether the -- the jurors can divide on -- on alternative instructions.

My guess would be that that they are to be unanimous on -- on the -- a single instruction.

But in any event --

Chief Justice Earl Warren: Is there any way you can establish in this case that they were -- all agreed that the sand was the issue?

Mr. Wayne G. Barnett: Oh, not at all, not at all.

Chief Justice Earl Warren: Or that the steel was the issue?

Mr. Wayne G. Barnett: No, no.

We have to agree that we cannot tell from the jury's verdict which they found and they may have gone on the steel issue.

Justice Felix Frankfurter: They could have found with implied obedience or attempted obedience to the charge of the Court that the steel thing is -- or this is our objective but it's not in cause, couldn't they?

Mr. Wayne G. Barnett: Yes, they -- they certainly could have and I would like to point out, on the sand commerce the only fact that had to be established was that these barge movements did take place and the barge movements were established by unconvertible records of the dredging company and also the slag company which corroborated with one another.

There was no dispute that the sand movements did take place and we later argued that the conviction could be sustained simply on the ground, but there was no dispute about that issue.

That's not the point I'm arguing now, however.

But -- but we think that this is the kind of variance which is relevant only if it's prejudicial.

That -- that it is not fatal per se and that there certainly was no prejudice in meeting the proof that the steel didn't move in interstate commerce.

Justice Hugo L. Black: You are in effect -- you in effect are arguing there, are you not, that this would be acceptable (Inaudible)

Mr. Wayne G. Barnett: Well we could --

Justice Hugo L. Black: (Inaudible) I suppose it's pretty well settled that the Government has to prove these allegations as being part of the charge?

Mr. Wayne G. Barnett: Well, that -- that is right.

I think the question is what degree of specificity is required in the indictment, whether it would be sufficient just to allege that the extortion delayed and obstructed interstate commerce without spelling out the ways in which that happened, but the Court said --

Justice Hugo L. Black: The Court didn't have anything to say as it said it all, that it had appeared to be interstate commerce.

Mr. Wayne G. Barnett: Oh, I think we do have to allege that and that is the center on --

Justice Hugo L. Black: Did you allege that practice at all?

Mr. Wayne G. Barnett: Yes, yes.

Well --

Justice Hugo L. Black: And that if you do allege more in fact it is not prejudicial at all?

Mr. Wayne G. Barnett: Well no, it is fatal only if it's prejudicial.

In fact we think you have to look at the whole trial to see if the man was prejudiced or surprised by this.

Justice Felix Frankfurter: How do you -- how do you determine -- how do you go about determining that --

Mr. Wayne G. Barnett: Well in --

Justice Felix Frankfurter: Put to one side, if you put to one side, as I gather you do, the confusion that it's taking (Inaudible) in conflict with the defendant, in his conception was -- was irrelevant in the theory of issue.

Mr. Wayne G. Barnett: Well, I -- I --

Justice Felix Frankfurter: How do you determine whether it's prejudicial -- it was just a -- explicitly one thing and then -- and then it's saying explicitly on something else?

Mr. Wayne G. Barnett: I don't think the counsel was confused.

Justice Felix Frankfurter: You mean you objected to the materiality.

Mr. Wayne G. Barnett: Well I -- I -- there was a -- a colloquy that followed that and we explained the reason we were introducing it and he then answered that he did not think the effect on steel commerce was substantial enough to satisfy the statutory requirement, the legal argument that he's making here.

And that is the only argument he has ever made during the whole course of the trial in about either sand commerce or steel commerce.

Justice Felix Frankfurter: But the effect of the admission of that contested author of evidence by the U.S. Attorney was, that it pertained to commerce as though the indictment had charged, it was implicit there that this obstructed interstate commerce.

Now it doesn't follow because of indictment was is no simple term for which the Bill of Particulars was or was not asked, that that allegation is sufficient and broad enough to let in any phase of obstruction that if you do not rest on that kind of a broad indictment, or confine it that you're equally obliged.

Mr. Wayne G. Barnett: Well -- well, I think that if it weren't -- if it were not essential to allege in a specific way in which interstate commerce is affect --

Justice Felix Frankfurter: I don't think it is myself.

Mr. Wayne G. Barnett: -- then I do not think -- see how we resolve because we specify one way except for the possibility of the prejudice and as I say, the evidence of the steel sales in interstate commerce was introduced in the second day of trial, no request for continuance was ever made and no suggestion at all that he was unable to meet that evidence of the single fact --

Justice Felix Frankfurter: But the trial isn't merely what the lawyers do.

A trial is also what the judge does and charges, but if the judge steps outside the scope and confinement of the indictment then he is from my point of view not capable of having really charging the jury.

Mr. Wayne G. Barnett: Yes, I -- I would like to deal with that.

I think it is the responsibility of the lawyer to call the matter to the judge's attention.

I think that's the very purpose of rule 30 which provides that that no error may – may be assigned to an instruction unless it is specifically objected to for stated reasons.

Justice Felix Frankfurter: Do you think that applies even if you travel outside the scope of the indictment?

I'm assuming --

Mr. Wayne G. Barnett: Yes, yes.

Justice Felix Frankfurter: -- for these questions that he did travel outside the scope of the indictment.

Mr. Wayne G. Barnett: No, I think this is also with the plain error, under Rule 52(a) but I -- I think this was not done.

Chief Justice Earl Warren: Mr. Von Moschzisker.

Argument of Michael Von Moschzisker

Mr. Michael Von Moschzisker: Mr. Chief Justice, may it please the Court.

When we asked for a Bill of Particulars, so we could find out among other things what commerce they meant to be talking about, the Government opposed the grant of the bill and that's why that paragraph hasn't been answered and then in the Government's opening in this case particularly the part at 520(a) and 521(a) and most particularly the top of 521(a) in their opening, they told us the commerce they were talking about was the sand.

Justice John M. Harlan: But it is true that at the time this evidence was introduced as to the future potentialities of the steel mill that you were put on notice at that time that the Government rightly or wrongly was going to rely on that evidence as part of its -- the commerce phase if it's in that -- of its case.

Mr. Michael Von Moschzisker: It is true that we were so put on notice after the trial began and it is also true that no grand jury ever made a prima facie case of such as felony or prima facie finding if it's a felony.

Yes, sir.

Justice John M. Harlan: Well the basic question on that is, on the indictment is whether the Government even though it didn't have to specify it at all what the commerce was that it was relying on by having specified sand, was thereafter precluded it from introducing any other elements of obstruction of commerce.

Mr. Michael Von Moschzisker: I would so argue if necessary sir, I think they were obliged to show in their indictment what commerce they were talking about because this statute prohibits obstructing commerce by extortion.

It's not like the Labor Management Relations Act which prohibits a labor leader from accepting money from an employer whose business affects commerce.

Here the extortion has to affect the commerce and not as what I should have more truly answered Mr. Justice Whittaker yesterday.

Sure, that sand on one barge may have been in commerce, sir or the record is somewhat ambiguous on that, but even if it was, the crime couldn't be made out.

If I ran a corner cigar store and some of my cigars came from another State that would be commerce just like the sand on that one alleged barge.

But if a holdup man came in and held up my cigar store, I say the effect on interstate commerce would be the same as that in this case and the effect is not enough for congressional jurisdiction.

The extortion has to affect commerce.

It's not enough for the business or the victim to which to affect commerce, you have to do something like hijacking a truck or stopping something from actually moving in commerce.

Here, that was not done.

What's that?

Justice Felix Frankfurter: In the statute, I don't suppose anybody would argue that the statute such as, every extortion of an owner of a business who might be subject, who would be subject to the Fair Labor Standards Act.

Mr. Michael Von Moschzisker: I would not have supposed anybody would argue that, but when they come before Your Honors and cite the Sullivan case, in support of that position here, wonder.

Good afternoon, Mr. Chief Justice.