The opinion of the court was delivered by: NEAHER
Defendant, a former public official, was indicted while in office for allegedly attempting to affect and affecting commerce by the extortion of political contributions from a partnership of consulting engineers in violation of the Hobbs Anti-Racketeering Act, 18 U.S.C. § 1951.
He has moved to dismiss the indictment, contending (1) it lacks "a plain, concise and definite" statement of specific facts essential to the offense as required by Rule 7(c), F.R.Crim.P.; (2) it is too vague to protect his constitutional rights to be informed of the nature and cause of the accusation against him; and (3) it is insufficient as a matter of law for failure to allege how, why or in what manner the alleged extortion had an effect on interstate commerce. The merit of those objections must be tested only against the face of the indictment. Extrinsic particulars cannot be relied on to supply any missing essential element. Russell v. United States, 369 U.S. 749, 769-770, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962).
Briefly, the indictment describes defendant's official position and authority as the Commissioner of Public Works, Town of Oyster Bay, Long Island. The alleged extortion victim, William F. Cosulich Associates (hereinafter "Cosulich"), is identified as a firm of consulting engineers that provided such services to the Town of Oyster Bay and engaged in interstate commerce. The defendant's powers of office, to the extent they could affect the retention and employment of Cosulich for the Town, are spelled out in some detail, concluding with the allegation that, as was reasonably understood by Cosulich, defendant had
"the power to take action which could adversely affect William F. Cosulich Associates in obtaining and performing contracts with the Town of Oyster Bay, Long Island."
With that, each of the two counts in the indictment alleges in haec verba that defendant violated the Hobbs Act "by knowingly and wilfully demanding and obtaining from William F. Cosulich Associates" a specified sum of money on or about a specific date (different in each count),
"for the benefit of the Republican Committee of the Town of Oyster Bay, Long Island, with the consent of William F. Cosulich Associates, and its members, to the aforesaid payment having been induced by the defendant GERARD P. TROTTA under color of official right." (Emphasis supplied.)
Before discussing defendant's criticism of those allegations, some comment on the precise nature of the alleged offense is in order. Defendant is charged with affecting commerce by means of "extortion" in violation of 18 U.S.C. § 1951(a), as that term is defined in § 1951(b)(2), supra n. 1. Comparison of that definition with the above emphasized language of the indictment reveals that this case is founded solely on the statutory definition of extortion as "the obtaining of property from another, with his consent, induced . . . under color of official right." Id.
Recent case law leaves no doubt that the language "under color of official right" is regarded as broad enough to include within its scope any public official or employee who wrongfully uses his official position to exact a payment not due him or his office, under circumstances which can be said to affect commerce "in any way or degree", supra n. 1. United States v. Braasch, 505 F.2d 139, 151 (7 Cir. 1974) (police officers exacting "protection" money from liquor establishments); United States v. Crowley, 504 F.2d 992, 995 (7 Cir. 1974) (police officer demanding periodic payoffs for "providing security" to bowling alley); United States v. Staszcuk, 502 F.2d 875, 877-78 (7 Cir. 1974) (city alderman accepting payment not to oppose a zoning application); United States v. Kenny, 462 F.2d 1205, 1229 (3 Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176 (1972) (city and county officials exacting "kickbacks" as a condition to award of public contracts); United States v. Irali, 503 F.2d 1295, 1299-1301 (7 Cir. 1974) (clerk in city collector's office expediting liquor license application for suggested payment); United States v. Price, 507 F.2d 1349, 1350 (4 Cir. 1974) (county council chairman requiring payment to insure grant of motel permit).
The offense of extortion "under color of official right" is separate and distinct from coercive extortion -- whereby property is obtained "by wrongful use of actual or threatened force, violence, or fear"
-- in that proof of such duress is generally thought not to be required.
Instead, the "office held by the official provides the coercive impetus which generates the payment."
More generally, it has been held that this portion of the Hobbs Act states an offense equivalent to the common law crime of extortion, a crime that originally only a public official could commit.
Against this background can it be said that the statutory language used in this indictment renders it insufficient and constitutionally vague, and fails to give defendant adequate notice of the charges against him? The defendant argues in essence that no facts appear on the face of the indictment which identify any conduct on his part pointing to criminality. Thus, he contends, he is left uninformed of the specific acts or conduct alleged to be in transgression of federal law.
The standard for judging the sufficiency of an indictment employing the words of a statute was recently reiterated by the Supreme Court in Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 2907, 41 L. Ed. 2d 590 (1974):
"It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.' United States v. Carll, 105 U.S. 611, 612, 26 L. Ed. 1135 (1881)." (Emphasis supplied.)
The government rejects the claims of insufficiency, vagueness and inadequacy of notice, asserting that all of the "crucial facts" are alleged. These are identified as (1) the defendant's official position; (2) his ability to take official action adversely affecting the victim; (3) the victim's awareness of that power; and (4) the defendant's demand for, and receipt of, monies from the victim on the dates alleged.
In the government's view these are the essential elements of the offense charged, aside from the commerce element. As its brief states, "our position was that a demand for monies made by someone holding a public office from another person who could 'adversely and directly be ...