United States v. Donald Lavern Culbert ( 1977 )

OPINION

PER CURIAM:

Culbert was convicted, in a jury trial, of two offenses charged in an indictment consisting of two Counts. Count One charged an attempted bank robbery in violation of 18 U.S.C. § 2113(a) (Supp.1976). Count Two charged an attempt to obstruct, delay, and affect commerce by robbery, extortion, and threats of physical violence, in violation of 18 U.S.C. § 1951 (1970) (hereinafter the “Hobbs Act” or “Act”). We reverse.

Section 2113(a), germane to the first Count, specifies, as one of the elements of the pertinent offense, a taking or attempted taking “from the person or presence of another.” The prosecution’s evidence was to the effect that Culbert and an accomplice attempted to extort $100,000 from a bank by means of telephoned threats of physical violence. The instructions given to the bank’s president were that he should drop the money at a specified site and then return to the bank. Thus, the criminal plan did not contemplate a trespassory taking “from the person or presence of” the bank president or any other person. Absent proof of that essential element of the offense charged in Count One, the judgment of conviction of the offense alleged in that Count must necessarily be vacated. See United States v. Howard, 506 F.2d 1131, 1133 (2d Cir. 1974); United States v. Marx, 485 F.2d 1179, 1182 (10th Cir. 1973), cert. den., 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974) (stating that § 2113(a) is not directed toward the crimes of extortion and obtaining of money by false pretenses). It should be noted that Government counsel, both in their written brief and in oral argument, conceded, with commendable candor, that Culbert’s conviction on Count One should be vacated for the reason above set forth.

For entirely distinct reasons, the conviction based upon Count Two of the indictment cannot stand. The Hobbs Act, in its present form, is a codification of a 1946 enactment which amended the so-called “Federal Anti-Racketeering Act of 1934.” The legality of Culbert’s conviction under the Hobbs Act depends upon whether the facts alleged and proved fall within the scope of the Act, which, in pertinent part, provides:

“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

(b) As used in this section— ******

(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. . ” (Emphasis supplied.)

The Sixth Circuit recently examined, with the utmost care, the legitimate scope of the Hobbs Act. United States v. Yokley, 542 F.2d 300 (6th Cir. 1976). The court there concluded that, “although an activity may be within the literal language of the Hobbs Act, it must constitute ‘racketeering’ to be within the perimeters of the Act.” Id. at 304. A review of the Act’s legislative history reveals, without question, that this was the Congressional intent; thus, we adopt the reasoning of the Sixth Circuit’s eminently sensible opinion. Given the applicable de minimis burden on interstate commerce rule (See United States v. Shackelford, 494 F.2d 67, 75 (9th Cir.), cert. denied, 417 U.S. 934, 94 S.Ct. 2647, 41 L.Ed.2d 237 (1974)) a contrary interpretation of the Act would justify federal usurpation of virtually the entire criminal jurisdiction of the states. Considerations of federalism, apart from the legislative history also emphasized in Yokley, cannot permit a conclusion that Congress intended to work such an extraordinary and unprecedented encroachment into the realm of state sovereignty.

Here, the facts do not suggest that the attempted extortion of the bank assets related, in any way, to “racketeering.” Consequently, the offensive activity fell within the exclusive criminal jurisdiction of the state of California.

The judgments of conviction are

REVERSED.