The opinion of the court was delivered by: DUFFY
The Grand Jury has charged the defendant, Robert Baudin, in a three count indictment, with extortion in obstructing interstate commerce in violation of 18 U.S.C. § 1951 (Count 1), the transportation in interstate commerce of threats to injure the persons (Count 2) and property (Count 3) of others in violation of 18 U.S.C. § 875(c) and (d).
The facts as alleged in the indictment and represented to this court by the parties are as follows.
In June 1978, the defendant executed a contract with the publishing house of Harcourt Brace Jovanovich, Inc. (hereinafter referred to as "HBJ"), covering the publication of defendant's auto-biographical work, "The Fake."
"The Fake", later retitled "Confessions of a Promiscuous Counterfeiter" by HBJ, was originally published in Australia and England by a publishing house unrelated to the instant proceedings. The contract with HBJ, however, granted HBJ the exclusive right to print, publish and market the book in the United States. Under its terms HBJ was apparently vested with broad, if not complete, discretion with respect to the printing, publication and distribution of the book. See Exhibit A to the Affidavit of Assistant United States Attorney Carolyn H. Henneman dated December 10, 1979.
As it developed, however, numerous disputes arose between defendant and HBJ over these precise points. In fact, defendant's major complaints with HBJ are its retitling of his book and the minimal editorial efforts expended by HBJ on the book.
As a result of his continuing controversy with HBJ over his book, defendant delivered a written statement, set forth in the margin, to the New York Post.
In addition to the grievances mentioned above, the statement made clear that defendant intended to conduct certain aerial activities in the vicinity of HBJ's New York offices and that once the defendant was airborne, the statement was to be delivered to HBJ. This apparently was done and the instant indictment resulted.
Defendant now moves pursuant to Fed.R.Crim.P. 12(b), to dismiss the entire indictment on the ground that his alleged conduct, even if true, does not amount to extortion. He reasons that the "property" or "things of value" which he is accused of having attempted to obtain, were objects to which he had a genuine claim of right. Alternatively, defendant urges that Counts 1 and 3 are fatally defective on their face since they fail to charge that defendant had no claim of right to the property or thing of value which he allegedly attempted to extort.
Finally, defendant argues that Count 3 is fatally defective since his statement (the written statement to HBJ), fails as a matter of law to constitute a "threat to injure the person of another." 18 U.S.C. § 875(c). He bases this argument upon certain language in the statement which purports to disclaim any intention to injure HBJ's property or the lives of any individuals in the HBJ building.
For the following reasons these arguments must be rejected and the motion denied.
Count 1 of the indictment charges defendant with violating the Hobbs Act, 18 U.S.C. § 1951. In pertinent part, that Act 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.
"Extortion" is defined in the Act, as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear . . . ." 18 U.S.C. § 1951(b)(2).
Count 3 charges defendant with violating 18 U.S.C. § 875(d) which provides, in pertinent part:
(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing(s) of value, transmits in interstate commerce any communication containing any threat to injure the property or reputation of the addressee . . . shall be fined not more than $ 500 or imprisoned not more than two years, or both.
Counts 1 and 3 are attacked on the theory that "a defendant who engages in violent or fear-producing behavior, in pursuit of a legitimate, lawful objective, is not guilty of extortion under federal law." Defendant's Memorandum at 7. Defendant reasons that his demands, were perfectly legitimate editing, titling and promotion requests to which he was entitled under his agreement with HBJ. He concludes, therefore, that these requests are insufficient, as a matter of law, to support the extortion counts.
In support of his conclusion, the defendant relies exclusively upon the Supreme Court's decision in United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973), and the Sixth Circuit's decision in United States v. Yokley, 542 F.2d 300 (6th Cir. 1976). This reliance is misplaced.
In Enmons, various union members and officials were charged with Hobbs Act violations. The indictment charged that during a strike by union employees for higher wages and other benefits, the defendants engaged in certain violent acts which were ...