National Organization for Women, Inc. v. Scheidler

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-3076, 99-3336, 99-3891, 99-3892,
and 01-2050
National Organization for Women, Inc., on
behalf of itself and its women members
and all other women who use or may use
the services of women’s health centers
that provide abortions, and Delaware
Women’s Health Organization, Inc., and Summit
Women’s Health Organization, Inc., on
behalf of themselves and the
class of all women’s health centers in
the United States at which abortions are
performed,
Plaintiffs-Appellees,
v.
Joseph M. Scheidler, Pro-Life Action League,
Inc., Andrew D. Scholberg, Timothy Murphy, and
Operation Rescue,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 86 C 7888--David H. Coar, Judge.
Argued September 14, 2000--Decided October 2, 2001
Before Rovner, Diane P. Wood, and Evans,
Circuit Judges.
Diane P. Wood, Circuit Judge. This case
is in its fifteenth year of contentious
litigation. The defendants are anti-
abortion activists who employ a protest
tactic they call "rescues," in which they
and other activists physically block
access to abortion clinics so that the
patients and staff cannot get in or out
of the buildings. Plaintiffs use words
less benign than "rescue" to describe the
defendants’ activities. We will refer to
them as "protest missions," in the hopes
that this will be understood as a neutral
term. The defendants’ goal is frankly to
prevent abortions from taking place.
Participants in the protest missions
engage in a substantial amount of
protected speech, including efforts to
persuade clinic patients not to have
abortions and to persuade clinic doctors
and staff to quit performing abortions.
Unfortunately, the protest missions also
involve illegal conduct: protesters do
everything from sitting or lying in
clinic doorways and waiting to be
arrested to engaging in more egregious
conduct such as entering the clinics and
destroying medical equipment and chaining
their bodies to operating tables to
prevent the tables from being used. In a
few instances, protesters apparently have
physically assaulted clinic staff and
patients. In addition to staging these
protests, the defendants have issued
letters and statements to other clinics
threatening to stage missions at those
clinics unless they voluntarily shut
down.
The plaintiffs, the National
Organization for Women (NOW) and two
clinics that were the targets of protest
missions, brought this class action
alleging, among other things, that the
defendants’ conduct amounted to a pattern
of extortion which violated the Racketeer
Influenced and Corrupt Organizations Act,
18 U.S.C. sec.sec. 1961-68 (RICO). The
trial judge certified two classes: one,
represented by NOW, of all NOW members
and non-members who have used or would
use the services of an abortion clinic in
the United States, and a second of all
such clinics. After a trip through this
court to the Supreme Court of the United
States during which many of the legal
issues in the case were clarified or
resolved, the case was remanded to the
district court for trial of the
plaintiffs’ RICO claims. A jury found for
the plaintiffs and awarded damages to the
two named clinics, and the district court
issued a permanent nationwide injunction
prohibiting the defendants from
conducting blockades, trespassing,
damaging property, or committing acts of
violence at the class clinics. The defen
dants have appealed a wide range of
issues relating to the conduct of the
trial and the issuance of the injunction.
We find that the district court navigated
its way through this complex and
difficult case with care and sensitivity
and affirm its judgment in all respects.
I
Many of the facts pertinent to this
opinion are set out in the Supreme
Court’s decision remanding the case,
National Organization for Women, Inc. v.
Scheidler, 510 U.S. 249 (1994) (NOW I),
and in our earlier decision in the case,
National Organization for Women, Inc. v.
Scheidler, 968 F.2d 612 (7th Cir. 1992),
and we will not recount them in detail
here. Nonetheless, in order to put the
defendants’ appeal in context, a brief
overview of the facts presented at trial
and of the procedural history of the case
may be helpful.
The individual defendants, Joseph
Scheidler, Andrew Scholberg, and Timothy
Murphy are on the Board of Directors of
one of the corporate defendants, the Pro-
Life Action League (PLAL). The other
corporate defendant is Operation Rescue.
(Randall Terry, the director of Operation
Rescue, was also originally a defendant
in the case, but he has since settled
with the plaintiffs). All of the
defendants were among the organizers of
the Pro-Life Action Network (PLAN), which
is a loose national organization of
groups that engage in protest missions
and other aggressive anti-abortion
tactics. Beginning in the mid-1980’s,
PLAN held annual conventions, organized
in part by the defendants here, which
included seminars on protest strategies.
Those conventions concluded with protest
missions being staged in the convention
city. PLAN also sent a newsletter to its
members and coordinated a hotline that
potential protesters could call to get
information about upcoming missions. The
plaintiffs alleged, and at trial the jury
found, that PLAN was an "organization or
enterprise" for purposes of RICO
liability.
Initially, the plaintiffs alleged that
the defendants’ tactics violated both
RICO and federal antitrust law. In 1992,
however, this court issued an opinion
dismissing both theories of liability,
reasoning that the antitrust laws were
not applicable because the plaintiffs had
not alleged that the defendants exercised
any form of market control over the
supply of abortion services and that RICO
did not reach the defendants’ conduct
because the plaintiffs had not shown that
the alleged racketeering acts were
"economically motivated." 968 F.2d at
617-30. The Supreme Court granted
certiorari on the limited question
whether RICO requires proof that either
the racketeering enterprise or the
alleged predicate acts were motivated by
an economic purpose. (The antitrust
holding of our 1992 decision was thus
left undisturbed.) The Court concluded
that RICO contains no such economic
motive requirement and therefore reversed
our decision on that point. 510 U.S. at
256-62. Thereafter, we remanded the case
to the district court for trial of the
plaintiffs’ RICO claims.
During the course of the seven-week
trial, the plaintiffs introduced evidence
of hundreds of acts committed by the
defendants or others acting in concert
with PLAN which, the plaintiffs
contended, constituted predicate acts
under RICO. The alleged predicate acts
included violations of federal extortion
law (the Hobbs Act, 18 U.S.C. sec. 1951),
state extortion law, the federal Travel
Act, 18 U.S.C. sec. 1952, and conspiracy
to violate these laws. A few of the more
egregious acts the plaintiffs alleged
included:
At a protest mission in Chico,
California, protesters pressed four
clinic staff members up against a glass
entranceway to the clinic for several
hours and refused to let them go even
when they complained they were being
crushed. The glass wall eventually either
loosened or shattered, injuring a clinic
staffer.
At a similar mission in Los Angeles,
protesters grabbed at a patient’s arms
and legs and tried to restrain her
physically from entering the clinic. The
patient was actually at the clinic for a
follow-up to ovarian surgery, and the
attack by the protesters reopened her
incisions. As a result of the attack, the
patient had to be rushed to the hospital.
In several instances, protesters entered
clinics and destroyed medical equipment.
In several cases, protesters not only
blocked doorways with their bodies, but
chained themselves to the doorways of
clinics, or, in some cases, to operating
tables inside clinics.
In December 1985, defendant Scheidler
sent letters to every abortion provider
in the Chicago area calling for a
"Christmas Truce." In these letters, he
requested that the clinics shut down for
a specific day in December, stated that
he would "call to confirm" the clinic’s
decision, and warned that non-complying
clinics would be subjected to "non-
violent direct action," a catch-phrase
PLAN and PLAL frequently used for their
activities.
Based on this and other evidence in the
voluminous record that was created at the
trial, the jury found in response to
special interrogatories that the
defendants or others associated with PLAN
committed 21 violations of the Hobbs Act,
25 violations of state extortion law, 25
acts of conspiracy to violate federal or
state extortion law, four acts or threats
of physical violence, 23 violations of
the Travel Act, and 23 attempts to commit
one of these crimes. The jury awarded
damages to both clinics; once the damages
were trebled, as RICO requires, the
awards totaled over $163,000 to Summit
Women’s Health Organization and over
$94,000 to Delaware Women’s Health
Organization.
After the jury returned its verdict, the
district court held three days of
additional hearings and then entered a
permanent, nationwide injunction
prohibiting the defendants or those
acting in concert with them from
interfering with the rights of the class
clinics to provide abortion services, or
with rights of the class women to receive
those services, by obstructing access to
the clinics, trespassing on clinic
property, damaging or destroying clinic
property, or using violence or threats of
violence against the clinics, their
employees and volunteers, or their
patients.
II
Initially, we must consider the
defendants’ contention that RICO does not
permit private plaintiffs to seek injunc
tive relief. The only court of appeals to
have addressed this issue directly, the
Ninth Circuit, concluded in 1986 that
private plaintiffs cannot seek
injunctions under RICO, relying largely
on the court’s reading of the statute’s
legislative history. See Religious Tech.
Ctr. v. Wollersheim, 796 F.2d 1076 (9th
Cir. 1986). The other courts of appeals
that have addressed the point in dicta
are split. Compare Johnson v. Collins
Ent’mt. Co., 199 F.3d 710, 726 (4th Cir.
1999), In re Fredeman Litig., 843 F.2d
821, 828-30 (5th Cir. 1988), and Trane
Co. v. O’Connor Sec., 718 F.2d 26, 28-29
(2d Cir. 1983) (expressing doubt about
availability of injunctive relief for
private plaintiffs), with Bennett v.
Berg, 710 F.2d 1361, 1366 (8th Cir. 1983)
(McMillan, J., concurring) (suggesting
injunctive relief is available); see also
Lincoln House, Inc. v. Dupre, 903 F.2d
845, 848 (1st Cir. 1990), Northeast
Women’s Ctr. v. McMonagle, 868 F.2d 1342,
1355 (3d Cir. 1989) (noting controversy
but expressing no opinion on resolution).
Our study of Supreme Court decisions
since the 1986 Wollersheim opinion
convinces us that the approach of the
Ninth Circuit (which relied almost
exclusively on the legislative history of
RICO to reach its result, as opposed to
the actual language of the statute) no
longer conforms to the Court’s present
jurisprudence, assuming for the sake of
argument that it was a permissible one at
the time. We are persuaded instead that
the text of the RICO statute, understood
in the proper light, itself authorizes
private parties to seek injunctive
relief.
In interpreting the remedial provisions
of the RICO statute, our inquiry begins
with the statute’s text, and, if the text
is unambiguous, it ends there as well.
See Alexander v. Sandoval, 121 S. Ct.
1511, 1520-21 & n.7 (2001); NOW I, 510
U.S. at 261. RICO’s civil remedies
section provides, in pertinent part:
(a) The district courts of the United
States shall have jurisdiction to prevent
and restrain violations of section 1962
of this chapter by issuing appropriate
orders, including, but not limited to . .
. imposing reasonable restrictions on the
future activities . . . of any person,
including, but not limited to,
prohibiting any person from engaging in
the same type of endeavor as the
enterprise engaged in, . . . or ordering
dissolution or reorganization of any
enterprise, making due provision for the
rights of innocent persons.
(b) The Attorney General may institute
proceedings under this section. Pending
final determination thereof, the court
may at any time enter such restraining
orders or prohibitions, or take such
other actions, including the acceptance
of satisfactory performance bonds, as it
shall deem proper.
(c) Any person injured in his business or
property by reason of a violation of
section 1962 of this chapter may sue
therefor in any appropriate United States
district court and shall recover
threefold the damages he sustains and the
cost of the suit, including a reasonable
attorney’s fee. . . .
18 U.S.C. sec. 1964.
Both parties have offered
interpretations of this text that support
their positions. The plaintiffs read the
statute in a straightforward manner.
Section 1964(a), they contend, grants the
district courts jurisdiction to hear RICO
claims and also sets out general
remedies, including injunctive relief,
that all plaintiffs authorized to bring
suit may seek. Section 1964(b) makes it
clear that the statute is to be publicly
enforced by the Attorney General and it
specifies additional remedies, all in the
nature of interim relief, that the
government may seek. Section 1964(c)
similarly adds to the scope of sec.
1964(a), but this time for private
plaintiffs. Those private plaintiffs who
have been injured in their business or
property by reason of a RICO violation
are given a right to sue for treble
damages. As the plaintiffs note, this
reading of the statute gives the words
their natural meaning and gives effect to
every provision in the statute.
The defendants argue for a less
intuitive interpretation. Relying on
Wollersheim, they argue that sec. 1964(a)
is purely a jurisdictional provision
authorizing the district court to hear
RICO claims and to grant injunctions to
parties authorized by other provisions of
the law to seek that form of relief.
Section 1964(b), in the defendants’ view,
allows the Attorney General to institute
RICO proceedings and authorizes the
government to seek not only the relief
described in that subsection, but also
the relief described in sec. 1964(a).
Section 1964(c) then provides a limited
right of action for private parties. They
read the two clauses of sec. 1964(c),
however, as tightly linked provisions,
under which private plaintiffs may sue
only for monetary damages. The mention of
this type of relief in the second clause
must mean, the defendants argue, that by
implication no other remedies,
particularly injunctive remedies, are
available. We cannot agree that this is a
reasonable reading of the statute.
As an initial matter, we note that the
Wollersheim decision apparently misreads
sec. 1964(b) when it states that sec.
1964(b) explicitly "permits the
government to bring actions for equitable
relief." Wollersheim, 796 F.2d at 1082.
Section 1964(b) does allow the government
to seek equitable relief, but it
specifically mentions only interim
remedies. Although no one doubts that
permanent injunctions are also available
to the government, the government’s
ability to seek permanent, as opposed to
interim, equitable remedies comes from
the general grant of authority for
district courts to enter injunctions
found in sec. 1964(a), not from anything
in sec. 1964(b). (The sentence "[t]he
Attorney General may institute
proceedings under this section" is in
that respect the equivalent of the first
clause in sec. 1964(c), which says "[a]ny
person injured in his business or
property by reason of a violation of
section 1962 of this chapter may sue
therefor in any appropriate United States
district court . . . ." Neither one
addresses what remedy the plaintiff may
seek.) Given that the government’s
authority to seek injunctions comes from
the combination of the grant of a right
of action to the Attorney General in sec.
1964(b) and the grant of district court
authority to enter injunctions in sec.
1964(a), we see no reason not to
conclude, by parity of reasoning, that
private parties can also seek injunctions
under the combination of grants in
sec.sec. 1964(a) and (c).
In addition, we cannot agree with the
defendants’ contention that sec. 1964(a)
is a purely "jurisdictional" statute,
despite the Ninth Circuit’s
characterization of it in that way in
Imagineering, Inc. v. Kiewit Pac. Co.,
976 F.2d 1303, 1307 (9th Cir. 1992)
(construing Wollersheim holding as
jurisdictional). What sec. 1964(a) does
is to grant district courts authority to
hear RICO claims and then to spell out a
non-exclusive list of the remedies
district courts are empowered to provide
in such cases. In that sense, sec.
1964(a) is strikingly similar to the
statute the Supreme Court construed in
Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 90 (1998). The
statute at issue in Steel Co. provided
that "[t]he district court shall have
jurisdiction in actions brought under
subsection (a) of this section against an
owner or operator of a facility to
enforce the requirement concerned and to
impose any civil penalty provided for
violation of that requirement." Id.,
quoting 42 U.S.C. sec. 11046(c). Noting
that "’[j]urisdiction’ . . . is a word of
many, too many, meanings," the Court held
that it would be "unreasonable to read
[the statute] as making all the elements
of the cause of action under subsection
(a) jurisdictional, rather than as merely
specifying the remedial powers of the
court, viz., to enforce the violated
requirement and to impose civil
penalties." Id. This part of the Steel
Co. holding supersedes any rationale to
the contrary that the courts of appeals
may have followed in earlier years. We
find that it is applicable to RICO and
that sec. 1964(a) both confers
jurisdiction on the district courts and
specifies certain remedial powers that
the courts will have in cases brought
before them.
Once we accept that sec. 1964(a) is not
purely jurisdictional, but also describes
remedies available under RICO, the
defendants’ position becomes untenable.
In the defendants’ view, despite the
general provisions for equitable relief
in sec. 1964(a), injunctive relief is not
available to any particular plaintiff
unless it is also provided by some other
section of the statute. This reading
renders sec. 1964(a)’s provision for
injunctive relief a nullity. Because an
alternative reading exists which gives
meaning to every section of the statute,
see Connecticut Nat’l Bank v. Germain,
503 U.S. 249, 253 (1992) ("courts should
disfavor interpretations of statutes that
render language superfluous"), we reject
the defendants’ approach.
The defendants’ final textual argument
springs from the maxim that "where a
statute expressly provides a particular
remedy or remedies, a court must be chary
of reading others into it." Transamerica
Mortgage Advisors, Inc. v. Lewis, 444
U.S. 11, 19 (1979). While we have no
doubt that this is good advice as a
general matter, we do not find it
particularly helpful in this case. This
is not a situation in which Congress has
provided for a private damages remedy and
has remained silent as to the
availability of injunctive relief.
Instead, Congress explicitly provided for
injunctive relief in sec. 1964(a),
although it did not specify in that
section which plaintiffs can seek such
relief. Given that the next two sections
describe two types of plaintiffs, the
government and private plaintiffs, and
spell out additional remedies specific to
each type, we find that the only logical
conclusion is that Congress intended the
general remedies explicitly granted in
sec. 1964(a) to be available to all
plaintiffs.
Although we would be confident resting
our holding purely on the plain text of
sec. 1964, we note that our
interpretation is consistent with
Congress’s admonition that the RICO
statute is to be "liberally construed to
effectuate its remedial purposes." Pub.
L. No. 91-452, sec. 904(a), 84 Stat. 947
(1970). Adhering to this admonition,
which "obviously seeks to ensure that
Congress’ intent is not frustrated by an
overly narrow reading of the statute,"
Reves v. Ernst & Young, 507 U.S. 170, 183
(1993), the Supreme Court has
consistently rejected interpretations by
the courts of appeals that would limit
the scope of RICO actions in ways not
contemplated by the text of the statute.
See, e.g., Cedric Kushner Promotions,
Ltd. v. King, 121 S. Ct. 2087 (2001)
(rejecting argument that employee of
corporation acting within scope of
employment cannot be a "person" distinct
from the corporation); Salinas v. United
States, 522 U.S. 52, 61-66 (1997)
(rejecting requirement that conspiracy
defendant himself has committed predicate
acts); NOW I, 510 U.S. at 256-62
(rejecting requirement that enterprise
have an economic motive); Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479
(1985) (rejecting requirements that
defendant has been convicted of predicate
act and that plaintiff suffer a
"racketeering injury," as opposed to
injury from mere predicate acts); United
States v. Turkette, 452 U.S. 576 (1981)
(rejecting argument that RICO enterprise
must have legitimate as well as
illegitimate aspects). RICO’s liberal-
construction clause has particular force,
as the Supreme Court has stated, when we
are construing sec. 1964, the civil
remedy provision, because it is in this
section that "RICO’s remedial purposes
are most evident." Sedima, 473 U.S. at
491 n.10. In keeping with the spirit of
these cases, we decline to restrict the
remedies available under RICO, when
Congress has provided for broad equitable
relief under sec. 1964(a).
Our interpretation of sec. 1964 is also
in keeping with the underlying purposes
of the RICO statute. As the Supreme Court
recently noted, Congress in enacting RICO
intended to "encourag[e] civil litigation
to supplement Government efforts to deter
and penalize the . . . prohibited
practices. The object of civil RICO is
thus not merely to compensate victims but
to turn them into prosecutors, ’private
attorneys general,’ dedicated to
eliminating racketeering activity."
Rotella v. Wood, 528 U.S. 549, 557
(2000). Recognizing that the statute
gives private citizens the ability to
seek injunctive relief as well as damages
is fully consistent with this role for
civil RICO litigation.
Perhaps realizing that the plain text of
the statute strongly suggests that
private plaintiffs can seek injunctions,
the Wollersheim court relied heavily in
its decision on two pieces of legislative
history. First, the court noted
that,during the floor debate on the bill
in the House, Representative Steiger, the
House sponsor of the bill, introduced an
amendment that would have, among other
things, made private plaintiffs’ right to
seek injunctive relief explicit. The
amendment was withdrawn after another
representative described it on the House
floor as creating "an additional civil
remedy." See Wollersheim, 796 F.2d at
1085-86. Second, the court noted that one
year after the bill’s passage, Congress
failed to pass a bill introduced in the
Senate with the same language as the
Steiger amendment. See id. at 1086. From
these two occurrences, the Ninth Circuit
concluded that "in considering civil
RICO, Congress was repeatedly presented
with the opportunity expressly to include
a provision permitting private plaintiffs
to secure injunctive relief. On each
occasion, Congress rejected the addition
of any such provision." Id.
Again, with respect, we cannot agree
with the Ninth Circuit that these
snippets of legislative history amount to
the kind of "’clearly expressed
legislative intent to the contrary’" that
we would require to cast doubt on
unambiguous statutory language. NOW I,
510 U.S. at 261. Even these excerpts do
not unequivocally indicate that Congress
intended private plaintiffs to be limited
to damages remedies. As the Wollersheim
decision itself notes, there are
indications in the legislative history to
the contrary. Id. at 1085. More
importantly, however, although the
Wollersheim court may well have made a
reasonable decision in 1986 to rely on
Congress’s refusal to enact amendments to
the statute, recent Supreme Court
precedent teaches that this type of
legislative history is a particularly
thin reed on which to rest the
interpretation of a statute. See, e.g.,
Solid Waste Agency of N. Cook County v.
United States Army Corps of Eng’rs, 531
U.S. 159, 169-70 (2001) ("Failed
legislative proposals are a particularly
dangerous ground on which to rest an
interpretation of a prior statute. A bill
can be proposed for any number of
reasons, and it can be rejected for just
as many others."); Central Bank of
Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164, 187 (1994)
("Congressional inaction lacks persuasive
significance because several equally
tenable inferences may be drawn from such
inaction, including the inference that
the existing legislation already
incorporated the offered change."). Given
the Court’s reluctance in recent years to
rely on the type of legislative history
that underpins Wollersheim, we cannot
agree with the Ninth Circuit’s earlier
view that this legislative history trumps
the otherwise plain language of sec.
1964.
In a last effort to save their reading
of the statute, the defendants urge us
that certain differences between
thelanguage of RICO and the language of
section 4 of the Clayton Act (on which
RICO was based) demand the inference that
no private right to injunctive relief
exists under RICO. The Clayton Act, they
note, provides private rights of action
in two separate sections: one for damages
in sec. 4, 15 U.S.C. sec. 15(a), and one
for injunctive relief in sec. 16, 15
U.S.C. sec. 26. RICO, in contrast, has
only one statutory section addressing
civil remedies, and the only subsection
that specifically talks about private
actions mentions only damages. Defendants
argue that Congress’s failure to include
in sec. 1964(c) language analogous to
that in Clayton Act sec. 16 must mean
that it did not intend to allow private
parties to seek injunctions.
We reject this line of analysis for a
number of reasons. First, the mere fact
that the Clayton Act spreads its remedial
provisions over a number of different
sections of the U.S. Code,/1 and RICO
does not, adds little to our
understanding of either statute. More
importantly, the Supreme Court regularly
treats the remedial sections of RICO and
the Clayton Act identically, regardless
of superficial differences in language.
See, e.g., Klehr v. A.O. Smith Corp., 521
U.S. 179, 188-89 (1997) (applying Clayton
Act rule for accrual of cause of action
to RICO); Holmes v. SIPC, 503 U.S. 258,
267 (1992) (applying proximate cause rule
to RICO). Since the Court has already
determined that litigants other than the
Attorney General may obtain broad
injunctive relief under the Clayton Act,
see California v. American Stores Co.,
495 U.S. 271 (1990), cases like Klehr and
Holmes indicate that we ought to adopt
the same interpretation with respect to
RICO. Indeed, American Stores (which came
to the Court from the Ninth Circuit)
pointedly rejected the way in which the
Ninth Circuit had relied on legislative
history to limit the Clayton Act’s
textual grant of private injunctive
relief. Id at 285. This in turn undercut
Wollersheim, which had used the same
methodology as the discredited American
Stores opinion. For all these reasons, we
find that sec. 1964 authorizes injunctive
relief at the behest of both the Attorney
General and private plaintiffs,
authorizes interim measures when the
Attorney General sues, and authorizes
private treble damages only for private
plaintiffs (and not the United States).
The district court thus correctly
concluded that RICO authorized the
private plaintiffs here to seek
injunctive relief.
III
With this much established, we may turn
to the defendants’ First Amendment
arguments. All parties acknowledge that
the defendants engaged in a substantial
amount of protected speech during the
protest missions and other anti-abortion
activities, including picketing on public
sidewalks in front of clinics and
verbally urging patients not to have
abortions. We entirely agree with the
defendants that liability cannot
constitutionally be imposed on them for
this portion of their conduct. But the
record is replete with evidence of
instances in which their conduct crossed
the line from protected speech into
illegal acts, including acts of violence,
and it is equally clear that the First
Amendment does not protect such acts. As
is true in many political protest cases,
the defendants’ protected speech was
often closely intertwined with their
unprotected illegal conduct.
Nevertheless, we believe the district
court adequately ensured that the jury’s
verdict was not based on activities
protected by the First Amendment, and
that the remedies it ordered also
respected the line between protected
expression and unprotected conduct.
The defendants’ First Amendment
arguments fall into two categories.
First, they argue broadly that imposing
liability on them on the basis of their
protest activities violates the First
Amendment. Second, they argue that, even
assuming they could constitutionally be
held liable for their alleged conduct,
the jury instructions and verdict form in
this case did not contain necessary First
Amendment safeguards. Before we reach
either of these arguments, we pause to
consider the standard of review we should
apply in analyzing the defendants’ First
Amendment claims.
The Supreme Court has repeatedly held
that, in cases in which First Amendment
concerns are implicated, reviewing courts
have an obligation to conduct an
"’independent examination of the whole
record’ in order to make sure that ’the
judgment does not constitute a forbidden
intrusion on the field of free expression.’"
Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 499 (1984),
quoting New York Times Co. v. Sullivan,
376 U.S. 254, 284-86 (1964). Although
this maxim has been applied most often in
cases reviewing the factual findings of
lower courts, the Court in Bose noted
that the rule is equally applicable
"whether the factfinding function be
performed in the particular case by a
jury or by a trial judge." 466 U.S. at
501. Citing this rule, the defendants
urge that our review of their First
Amendment challenges must be plenary.
As we have noted before, however, even
though Bose calls for an "independent
examination of the whole record," it is
not entirely clear what this "plenary"
review is supposed to entail. See Brown &
Williamson Tobacco Corp. v. Jacobson, 827
F.2d 1119, 1128-29 (7th Cir. 1987). In
particular, it is not clear whether Bose
requires an independent review only of
the ultimate factual conclusion that the
defendants’ conduct fell outside the
protection of the First Amendment, or
whether this court is required to conduct
a more searching review of "findings of
underlying facts, evaluations of
credibility, and the drawing of
inferences." Brown & Williamson, 827 F.2d
at 1128. In cases in which we are
reviewing a jury verdict rather than the
findings of a lower court, the question
is even more complex, because we must
somehow reconcile the defendants’ First
Amendment rights against the command of
the Seventh Amendment that "no fact tried
by a jury shall be otherwise re-examined
in any Court of the United States, than
according to the rules of the common
law." U.S. Const. amend. VII. Bose itself
involved review of facts found by the
district court under Fed. R. Civ. P.
52(a), and thus the Court had no occasion
to consider this problem. For a different
reason, we conclude that it is not
necessary here to decide whether or not a
broader version of the re-examination of
jury findings is permissible when First
Amendment rights are at issue. Even
assuming that the Bose dicta requires us
to conduct a plenary review of all of the
factual findings relevant to the First
Amendment issues before us (which is the
most favorable position we can take for
the defendants), we find that the jury’s
determinations are fully supported by the
record.
A.
Protection of politically controversial
speech is at the core of the First
Amendment, and no one disputes that the
defendants’ speech labeling abortion as
murder, urging the clinics to get out of
the abortion business, and urging clinic
patients not to seek abortions is fully
protected by the First Amendment. See,
e.g., Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263 (1993). It is
equally clear, however, that the First
Amendment does not protect violent
conduct, Wisconsin v. Mitchell, 508 U.S.
476, 484 (1993), nor does it protect
threats, Madsen v. Women’s Health Ctr.,
512 U.S. 753, 773 (1994), or language
used to carry out illegal conduct,
Giboney v. Empire Storage & Ice Co., 336
U.S. 490, 502 (1949). Even when a
defendant’s conduct involves expressive
elements, the government is free to
regulate the non-expressive aspects of
the conduct if such regulation is
necessary to serve important government
interests. United States v. O’Brien, 391
U.S. 367, 377 (1968). The protection of
the plaintiffs’ rights to seek and
provide medical care free from violence,
intimidation, and harassment is such an
important government interest. See, e.g.,
Hill v. Colorado, 530 U.S. 703, 715
(2000); Schenck v. Pro-Choice Network of
W. New York, 519 U.S. 357, 376 (1997);
Madsen, supra, 512 U.S. at 768. As the
Supreme Court has explained, "violence or
other types of potentially expressive
activities that produce special harms
distinct from their communicative impact
. . . are entitled to no constitutional
protection." Roberts v. United States
Jaycees, 468 U.S. 609, 628 (1984).
In this case, the plaintiffs presented
ample evidence that the individual
defendants and others associated with
PLAN engaged in illegal conduct that
directly threatened an important
governmental interest. The evidence
presented at trial showed that, at PLAN-
sponsored events, protesters trespassed
on clinic property and blocked access to
clinics with their bodies, including at
times chaining themselves in the doorways
of clinics or to operating tables. At
other times, protesters destroyed clinic
property, including putting glue in
clinic door locks and destroying medical
equipment used to perform abortions. On
still other occasions, protesters
physically assaulted clinic staff and
patients. In addition, defendant
Scheidler, on behalf of defendants PLAL
and PLAN, sent letters to class clinics
threatening that they would be subjected
to similar attacks if they did not cease
performing abortions. In light of the
protesters’ conduct at other PLAN events,
the district court correctly concluded
that these letters were not protected
political speech but constituted true
threats outside the protection of the
First Amendment.
Assuming that the defendants can be held
liable for these incidents, all of which
occurred under PLAN sponsorship, then the
plaintiffs produced ample evidence of
illegal conduct that may legitimately be
regulated given the importance of the
governmental interest in protecting the
right to seek and provide medical care.
In a case where a similarly important
governmental interest is not present and
the conduct in question has an expressive
element, we do not disagree with the
defendants that the First Amendment might
well shield that particular conduct from
being used as the basis for RICO
liability. (We express this thought
cautiously only because the balance
between the strength of the government’s
interest and the degree to which conduct
has an expressive element will vary from
case to case.) In any event, this case
presents no such problems. We are
satisfied that the record here easily
supports the jury’s finding of liability.
At this point, the defendants shift
their argument to a more personal one:
maybe someone associated with PLAN was
engaged in unprotected conduct, but the
evidence did not establish that the
defendants themselves were involved, as
opposed to being involved exclusively in
PLAN’s protected speech activities. In
NAACP v. Claiborne Hardware Co., 458 U.S.
886 (1982), the Supreme Court noted that,
where an organization engages in both
protected speech and unprotected, illegal
conduct, the First Amendment does not
permit individuals to be held liable for
the organization’s illegal acts merely
based on their association with the
organization. Id. at 908-09. Rather, in
order to impose liability on an
individual based on that individual’s
association with an organization, a
plaintiff must show both that the
organization itself, rather than just
isolated members, possessed unlawful
goals and that the individual defendant
held a specific intent to further those
illegal aims. Id. at 920.
We agree that Claiborne Hardware is
directly applicable to our case. Although
the plaintiffs established that the
individual defendants themselves
participated in many of the incidents
described during the trial, the
plaintiffs also introduced evidence of
many other incidents coordinated or
orchestrated by PLAN for which they did
not specifically show that the individual
defendants themselves committed the
illegal acts described. In order for the
defendants to be held responsible for
acts committed by other members of PLAN
during PLAN-organized events, Claiborne
Hardware required the plaintiffs to show
that PLAN itself, and not merely isolated
members, intended that the illegal acts
occur, that the defendants were aware of
PLAN’s illegal aims, and that the
defendants held a specific intent to fur
ther those aims through their association
with PLAN.
Even though this is an exacting test,
once again the record shows that the
plaintiffs satisfied it in this case. All
of the individual defendants who remain
in the case were on the board of
directors of PLAL. PLAL and Operation
Rescue, the two remaining organizational
defendants, were in turn the primary
organizers of PLAN. The plaintiffs put
into evidence numerous letters,
newsletters, and other publications
authored by defendant Joseph Scheidler,
executive director of PLAL, and by
Randall Terry, executive director of
Operation Rescue, detailing the
activities planned for upcoming PLAN
events. The activities detailed in these
letters included blocking access to
clinics and entering clinics to block
passageways. As noted above, these types
of protest activities are illegal conduct
unprotected by the First Amendment.
Similarly, the threatening letters to
plaintiff clinics were sent on PLAL
letterhead, signed by Scheidler, and
specifically described the threat as
coming from PLAN. The jury was entitled
to conclude from this evidence that PLAN
itself, not merely isolated members, held
illegal aims.
It is also significant that all of the
individual defendants were high-level
leaders within PLAN, and as such they
knew of PLAN’s illegal aims and intended
to further those aims. The record showed
that defendant Scheidler personally
organized and coordinated many of PLAN’s
activities. Defendants Scholberg and
Murphy also participated in planning
meetings for PLAN events at which illegal
blockades were to take place and spoke at
PLAN conventions designed to train
protesters in the use of these tactics.
The plaintiffs presented more than enough
evidence to convince us that the
individual defendants actively intended
to further PLAN’s illegal goals.
B.
Turning to the defendants’ narrower
First Amendment argument, the defendants
contend that, regardless of whether there
was sufficient evidence from which the
jury could have found that they engaged
in unprotected activities, the jury
instructions and verdict form used by the
trial court allowed the jury to find the
defendants liable based solely on the
defendants’ protected speech. The verdict
form that the district court used asked
the following relevant questions:
1. Is the Pro-Life Action Network (PLAN) a
group of people or organizations
associated together for a common purpose?
2. Were the . . . defendants associated
with PLAN? (See Jury Instruction No. 20
for the definition of "associated with.")
. . .
4. Did any Defendant, or any other person
associated with PLAN, commit any of the
[alleged predicate acts]?
The jury instruction to which the verdict
form referred stated, in relevant part:
Jury Instruction No. 20: Plaintiffs must
show that the defendant was "associated
with" PLAN. That is, the defendant must
have had some minimal association with
PLAN and have known something about
PLAN’s activities as they relate to the
illegal acts under RICO. It is not
necessary that the particular defendant
committed acts unlawful under RICO or was
aware of all of the unlawful acts
committed by the other people who were
associated with PLAN. . . . .
In the district court, the defendants
objected to these instructions, arguing
that they did not require the jury to
find that the defendants harbored a
specific intent to further PLAN’s illegal
aims, as required by Claiborne Hardware.
The district court apparently agreed,
because it added an additional jury
instruction which stated:
Jury Instruction No. 30--Defendants’
Liability for Acts of Others
Liability may not be imposed upon any
defendant merely because that defendant
belonged to a group, some members of
which committed acts of violence. In
order to find the defendants liable, you
must conclude that the enterprise, or
those acting on behalf of the enterprise,
directly or indirectly authorized or
ratified unlawful activities and that the
defendants held a specific intent to
further those illegal objectives.
The defendants did not renew their
objection to the jury instructions after
the district court made this change.
Nevertheless, in this court, the
defendants have argued that, even with
the additional instruction, the jury
instructions did not adequately protect
their First Amendment rights, because the
Claiborne Hardware standard was
incorporated only into the jury
instructions, not into the verdict form.
Initially, we note that by not renewing
their objection to the jury instructions
and verdict form after the district court
added Instruction 30, the defendants at
least implied that they were satisfied
with the court’s resolution of their
objection. Accordingly, we are inclined
to find that the defendants have waived
any objection to those instructions on
appeal. See United States v. Jones, 224
F.3d 621, 626 (7th Cir. 2000) (objection
to jury instruction waived where defense
counsel agreed to instruction at trial).
Because this is a civil trial, not a
criminal trial, there is no equivalent of
"plain error" review for a challenge that
is forfeited rather than waived. In the
interest of absolute fairness, however,
we will consider this point based on the
earlier objections.
Our review of jury instructions is
deferential, and we consider only whether
the instructions, taken as a whole,
adequately informed the jury of the
applicable law. Molnar v. Booth, 229 F.3d
593, 602 (7th Cir. 2000). We are
confident that these instructions did so.
This jury could not have found the
defendants liable without finding that
the defendants themselves specifically
intended to further PLAN’s illegal aims.
Jury Instruction 30 made this requirement
explicit, and absent any indication to
the contrary, we presume that jurors
follow the instructions they are given.
Miksis v. Howard, 106 F.3d 754, 763 (7th
Cir. 1997). There is no requirement for a
district judge to replicate every
instruction on the verdict form itself.
We are confident that the jurors followed
their instructions, heeded Instruction 30
when they considered the questions on the
special verdict form, and that nothing on
the form misled or confused them or
caused them to ignore their instructions.
IV
The last serious contention we must
address is the defendants’ argument that
the injunction in this case is vague and
overbroad. The operative portion of the
injunction reads as follows:
Defendants . . . and any other on their
behalf or in concert with them, are
hereby enjoined from directly or
indirectly:
a. interfering with the right of any
member of the Certified Class of
Plaintiff Clinics to conduct its business
(including but not limited to the right
to provide abortion services) or the
right of any NOW member or any member of
the Certified Class of women to avail
herself of the Plaintiff Clinics’
services (including but not limited to
abortion services), by:
(1) blocking, impeding, inhibiting, or in
any other manner obstructing or
interfering with access to, ingress into
and egress from any building or parking
lot of any Plaintiff Clinic;
(2) trespassing on the premises or the
private property of any Plaintiff Clinic;
(3) destroying, damaging or stealing
property of any Plaintiff Clinic, its
employees, volunteers, or any woman who
seeks to use the services of such a
Clinic;
(4) using violence or threat of violence
against any Plaintiff Clinic or any of
its employees, volunteers, or any woman
who seeks to use the services of such a
Clinic;
b. aiding, abetting, inducing, directing,
or inciting any of the acts enumerated in
subsection a. of this paragraph (the
"Acts") through any of the Defendants or
through others; or
c. Operating an enterprise through any of
the Acts described above.
This injunction does not prohibit or
preclude activities that are
constitutionally protected, including but
not limited to the following conduct:
a. Peacefully carrying picket signs on the
public property in front of any Plaintiff
Clinic;
b. Making speeches on public property;
c.Speaking to individuals approaching the
clinic;
d. Handing out literature on public
property; and
e. Praying on public property.
This injunction shall bind Defendants .
. . and all other persons in active
concert with them, and who have actual or
constructive notice of this Order, and
any other person acting in concert with
PLAN.
The defendants raise two principal
objections to the scope of the
injunction. First, they complain that it
contains a number of terms that are vague
or indefinite, and that as such, it is
likely to chill a substantial amount of
protected speech. Second, the defendants
charge that the injunction makes them
liable for the conduct of persons they do
not control and for actions they do not
authorize or approve. We consider each of
these contentions in turn.
First, we recognize that it is a
delicate task to craft an injunction that
prohibits illegal conduct when that
conduct is closely tied to political
protests and other protected activity.
The court must tread carefully to avoid
hampering protected speech. Here, we do
not disagree with the proposition that
some language in this injunction, taken
in the abstract, is rather general. But
the key question is: Compared to what?
Any effort to deal with a case of this
complexity will inevitably involve some
imprecision. Many criminal statutes
contain key terms such as the word
"material" which are somewhat imprecise
but have never been considered void for
vagueness. The defendants in this case
never proposed any alternative language
for an injunction, despite several
invitations from the district court to do
just that, so the real question is
whether the injunction the court entered
is as precise as possible while still
insuring that the defendants’ illegal
activities are enjoined.
We are satisfied that the injunction
drafted by the district court here has
struck the proper balance and has avoided
any risk of curtailing protected
activities. By its terms, the injunction
prohibits only illegal conduct--
trespassing, obstructing access to
clinics, damaging property, using
violence or threats of violence, or
aiding, abetting, inducing, directing, or
inciting any of these acts. We do not
find any ambiguity in the terms the
district court used to describe the
prohibited conduct, and as discussed
above, none of this conduct is protected
by the First Amendment.
Although we do not believe that the
terms of the injunction would reach
protected speech in any case, the injunc
tion itself includes an additional
safeguard. A specific provision
underscores that it does not prohibit
peaceful picketing, speeches, or praying
on public property, attempts to speak
with patients and staff, handing out
literature, or any other activity
protected by the First Amendment. Given
this explicit language, there can be no
doubt that this injunction reaches only
unprotected, illegal conduct, not
protected speech. The defendants’
alarmist prediction that, under the terms
of the injunction, a protester who
engages in "months of peaceful picketing"
and then takes "two accidental footsteps
onto private property" could be subject
to contempt proceedings not only for
trespass but also for the picketing is
pure fancy and bears no relation to the
actual wording of the injunction.
Nor do we find that the injunction
impermissibly holds the defendants
responsible for the actions of persons
beyond their control. The injunction
applies only to the defendants and to
persons working in "active concert" with
the defendants or in concert with PLAN.
For that reason alone, the injunction’s
sweep is not so broad as the defendants
suggest. Activists and protesters not
closely associated with the defendants or
with PLAN, an organization the defendants
control, are not affected by the
injunction. (This takes care of the
specter of renegades who, the defendants
assert, are utterly beyond their
control.) Moreover, to the extent the
injunction reaches the conduct of
individuals not named in this lawsuit,
the order enjoins those individuals from
violating its mandates. If individuals
acting in concert with the defendants or
PLAN violate the injunction, without
inducement or direction by the
defendants, the violators, not the
defendants, would be in contempt of the
court’s order. Nothing in the order
purports to hold the defendants liable
for actions they do not direct, incite,
or control.
The injunction as it is written is
narrowly tailored to prohibit the
specific types of illegal conduct that
the defendants have engaged in on past
protest missions. As such, it does not
threaten the defendants’ First Amendment
rights. We are confident that the
district court will take as much care in
enforcing the injunction as it plainly
took in crafting it. Indeed, with its
explicit protection of peaceful
picketing, speech, literature, and
prayer, perhaps in the end the injunction
may further rational discourse on one of
the most volatile political controversies
facing the nation today. Violence in any
form is the antithesis of reasoned
discussion. By directing those with
passionate views about the abortion
controversy--on either side--away from
the use of threats and violence and back
to "all the peaceful means for gaining
access to the mind," the injunction the
district court issued is in harmony with
the fundamental First Amendment
protection of free speech.
V
The defendants have raised a hodgepodge
of other challenges to the judgment, none
of which need detain us long. First, the
defendants point out that in the
plaintiffs’ First and Second Amended
Complaints (which were filed before the
first set of appeals in the case) only
the clinic plaintiffs alleged RICO
claims; NOW joined only the counts
alleging antitrust violations. As noted
above, when the Supreme Court granted
certiorari to review our earlier decision
in this case, that grant was limited to
questions concerning the RICO counts. The
antitrust claims fell out of the case
after the Court declined to review our
decision with respect to them. According
to the defendants, once all the counts to
which NOW was a party fell out of the
case, the effect was the same as a final
judgment against NOW, and res judicata
barred the plaintiffs from amending their
complaint to include NOW as a plaintiff
in the RICO counts. The district court,
however, permitted the plaintiffs to file
a Third Amended Complaint, after remand
from this court, which included NOW as a
plaintiff in the RICO counts.
Whether to allow amendments to a
complaint is a question committed to the
discretion of the trial court. Bethany
Pharmacal Co. v. QVC, Inc., 241 F.3d 854,
861 (7th Cir. 2001). Contrary to the
defendants’ assertion, there was no final
judgment in this case after the Supreme
Court’s decision to which res judicata
principles could apply. The case was
still pending, first in this court and
then in the district court. As a general
rule, amendments to complaints are
liberally allowed up to and even after
trial, judgment, and appeal. See United
States v. Security Pac. Bus. Credit,
Inc., 956 F.2d 703, 707-08 (7th Cir.
1992); see also Guse v. J.C. Penney Co.,
570 F.2d 679, 680 (7th Cir. 1978) (even
after plaintiff lost on appeal, there was
no final judgment against plaintiff, and
district court was free to allow
plaintiff to file amended complaint
putting forth new legal theory). The
Supreme Court made it clear in its
opinion that it was evaluating the
complaint only on the pleadings, see 510
U.S. at 256, 262, which is the most
preliminary stage of proceedings one can
imagine. The district court was thus well
within its discretion in allowing NOW to
continue as a plaintiff for the RICO
claims in the Third Amended Complaint.
The defendants also argue that the
clinics’ claims are barred by res
judicata. While this case was pending,
one of the plaintiff clinics, Summit
Women’s Health Organization, filed suit
in state court in Wisconsin seeking an
injunction against Scheidler and several
other defendants to prevent PLAN from
engaging in illegal blockades during a
PLAN convention in Milwaukee. The
Wisconsin courts ultimately dismissed
that lawsuit without prejudice as to most
of the defendants. However, before the
case was dismissed, Scheidler and the
Summit Women’s Health Organization
entered into a settlement agreement that
specified that "all claims against
[Scheidler] relating to conduct which oc
curred prior to the signing of this
stipulation are hereby dismissed as to
[Summit] with prejudice." The defendants
argue that, because the claims that
Summit raises in this case had already
accrued at the time Summit entered into
this stipulation, Summit is barred from
bringing these claims in this lawsuit.
We need not consider what preclusive
effect the Wisconsin settlement might
have, because the defendants waived this
issue in the district court. Res judicata
is an affirmative defense that is waived
if a party does not plead it. Fed. R.
Civ. P. 8(c). Under the local rules of
the Northern District of Illinois, the
defendants were required to list all
their defenses in their trial brief, and
any defenses not listed were waived. The
defendants admit that they did not list
res judicata based on the Wisconsin
litigation as an affirmative defense in
their trial brief, and accordingly they
have lost the opportunity to argue that
issue here. Although we find that this
claim is waived, we also note that, even
if it were not waived and if the
Wisconsin settlement had a preclusive
effect in this case, the preclusion could
run only between Summit and Scheidler and
would not affect any of the other
plaintiffs, including the class members,
or any of the other defendants. The
injunction would not be affected, all of
the defendants would remain jointly
liable for the damages to Delaware
Women’s Health Organization, and all of
the defendants except Scheidler would
remain liable to Summit. The practical
effect of any preclusion would therefore
be negligible.
The defendants have also urged this
court to decertify the two classes,
arguing that NOW and the named clinics
are inadequate class representatives. The
defendants particularly object to the
district court’s decision to include in
the NOW class women who are not members
of NOW, arguing that because NOW is a
partisan advocacy group and the issues
involved in this case concern a matter of
great social controversy, NOW is likely
to have interests antagonistic to the
views of some members of the class. Class
certification decisions are committed to
the discretion of the district court,
however, see Chavez v. Illinois State
Police, 251 F.3d 612, 629 (7th Cir.
2001), and we find that the district
court’s decision to certify the two
classes here was well within the court’s
discretion. It is inaccurate in any event
to imply that the district court
certified a class of "all women." The
court did no such thing. Instead, it
certified a class that included only
those women, whether or not members of
NOW, whose right to seek abortion
services has been or will be interfered
with by the defendants. In order for
these women’s interests to be
antagonistic to the claims NOW is
bringing, the defendants would have to
argue that at least some women in the
class want to seek abortion services, but
do not want to be free from harassment
and intimidation while doing so. This
scenario strikes us as exceedingly
unlikely; at the very least, we agree
with the district court that it "is
clearly speculative and projects
personally held views onto the plaintiff
class." National Organization for Women,
Inc. v. Scheidler, 172 F.R.D. 351, 362
(N.D. Ill. 1997).
As to the defendants’ more general
arguments that the named plaintiffs have
not performed adequately as class
representatives, we note that the named
plaintiffs have pursued this litigation
diligently for fifteen years, through a
trip to the Supreme Court of the United
States and a seven-week trial, and
ultimately were successful in securing a
nationwide injunction against the
defendants prohibiting the conduct they
set out to challenge. Given this record
of performance, we cannot say that the
district court in any way abused its
discretion in certifying these classes.
The defendants have also argued that the
conduct in which they engaged is not
prohibited by RICO for a number of
reasons. First, the plaintiffs alleged as
predicate acts numerous violations of the
federal extortion statute, the Hobbs Act,
18 U.S.C. sec. 1951, and the defendants
argue that the Hobbs Act does not apply
to their conduct. The defendants’ primary
contention on this point is that the
Hobbs Act defines extortion as "the
obtaining of property from another, with
his consent, induced by wrongful use of
actual or threatened force, violence, or
fear," and that the things the plaintiffs
claim were taken here--the class women’s
rights to seek medical services from the
clinics, the clinic doctors’ rights to
perform their jobs, and the clinics’
rights to provide medical services and
otherwise conduct their businesses--
cannot be considered "property" for
purposes of the Hobbs Act. However, this
circuit has repeatedly held that
intangible property such as the right to
conduct a business can be considered
"property" under the Hobbs Act, see,
e.g., United States v. Anderson, 716 F.2d
446, 450 (7th Cir. 1983), and we will not
revisit that holding here.
In a similar vein, the defendants assert
that, even if "property" was involved,
the defendants did not "obtain" that
property; they merely forced the
plaintiffs to part with it. Again, this
argument is contrary to a long line of
precedent in this circuit holding that
"as a legal matter, an extortionist can
violate the Hobbs Act without
eitherseeking or receiving money or
anything else. A loss to, or interference
with the rights of, the victim is all
that is required." United States v.
Stillo, 57 F.3d 553, 559 (7th Cir. 1995).
In addition to their challenges to the
application of the Hobbs Act, the
defendants argue that the district court
erred in giving the jury a generic
instruction describing the elements of
the state law extortion offenses the
plaintiffs alleged as additional
predicate acts. According to the
defendants, there are substantial
differences in the extortion laws of the
states in which these alleged predicate
acts occurred, and the district court’s
attempt to cover all the relevant state
laws with a single, generic instruction
impermissibly discounted these
differences. Without expressing an
opinion on whether this approach was
permissible, we simply note that, if any
error occurred, it was harmless. The jury
found that the defendants committed 21
predicate acts under the Hobbs Act alone,
which is far in excess of the two
predicate acts that RICO requires. In the
face of this finding, any error in the
state extortion law instructions, which
could at most have affected the jury’s
decision on the additional state-law
predicate acts it found, could not have
had any effect on the outcome of this
case.
Finally, while this appeal was pending,
the defendants filed motions in the
district court seeking relief from the
judgment under Rules 60(b)(2) and (3).
The district court denied the motions,
and the defendants appealed. We
consolidated that appeal with this case
and suspended briefing on the 60(b)
issues. We have reviewed the defendants’
motions in the trial court and the trial
court’s resolution of those issues, and
we conclude that no further briefing on
the issues is necessary.
"Rule 60(b) relief is an extraordinary
remedy granted only in exceptional
circumstances." Rutledge v. United
States, 230 F.3d 1041, 1052 (7th Cir.
2000). Our review of the district court’s
decision denying relief is deferential,
and we will reverse only if the district
court has abused its discretion. J&W
Fence Supply Co. v. United States, 230
F.3d 896, 898 (7th Cir. 2000). We find no
abuse of discretion in this case. In
their 60(b) motions, the defendants
argued that they had newly discovered
evidence relating to two specific
incidents described by witnesses during
the trial. In addition, the defendants
posited that newly discovered evidence
called into doubt whether an anonymous
witness who testified at the trial in
fact needed to remain anonymous. The
district court denied the motions on the
grounds that the defendants had documents
in their possession from which they could
have discovered most of the "new"
evidence for well over a decade, and that
relief at this late date accordingly was
not warranted. In addition, the court
noted that it was very unlikely that any
of the "new" evidence, if admitted at
trial, would have had any impact on the
jury’s verdict. Given that Rule 60
motions cannot be used to present
evidence that with due diligence could
have been introduced before judgment,
Rutledge, 230 F.3d at 1052, or to put
forth evidence that is not material or
that would likely not change the result
at trial, Jones v. Lincoln Elec. Co., 188
F.3d 709, 732 (7th Cir. 1999), we find no
error in the district court’s denial of
relief.
We have considered all of the
defendants’ remaining contentions, but
find none that requires comment. For the
foregoing reasons, the judgment of the
district court is Affirmed in all
respects.
FOOTNOTE
/1 The remedial provisions of the Clayton Act are
actually spread over far more than the two sec-
tions the defendants mention. In addition to
sec.sec. 4 and 16, the Clayton Act also includes
(as codified) 15 U.S.C. sec. 15(b) (suits for
actual damages brought by foreign governments),
15 U.S.C. sec. 15a (suits for treble damages
brought by the United States for its own injuries
to business or property), 15 U.S.C. sec. 15c
(parens patriae suits brought by state attorneys
general for treble damages on behalf of natural
persons in the state), and 15 U.S.C. sec. 25
(actions for injunctive relief brought by the
Attorney General).