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UNITED STATES v. ZAPPOLA

September 29, 1981

UNITED STATES of America,
v.
George ZAPPOLA and Robert Melli, Defendants



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

The Court decides in this opinion an issue concerning the proper jury charge to give, in a case where the Government accuses the defendants of attempted extortion under the Hobbs Act, 18 U.S.C. § 1951. The Act reads in pertinent part:

 
"(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by ... 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."

 Defendants are charged in Count I with conspiring to extort, and in Count II with attempting to extort, money from World Trade Transport, Inc. "by the wrongful use of actual and threatened force, violence and fear." The Government's theory is that force and violence were actually used (defendant Zappola is alleged to have struck the president of World Trade Transport, Inc., one John Marano, in the face), and that threats of further force and violence were made. Defendants contend that whatever actions they took were motivated by their reasonable belief that World Trade Transport, Inc. owed defendants' company M & R Repair, Inc. money as the result of commercial transactions.

 At the first trial Judge Sand charged the jury, over the Government's objections, that "if you find that the defendant you are considering reasonably entertained a belief that he had a lawful claim to the property or money, then his actions were not wrongful within the meaning of the statute, and you may not convict that defendant of attempted extortion." On remand, the Government again opposes that charge. The issue has been addressed by helpful letters and briefs of counsel, most recently in response to the Court's letter to counsel of September 16, 1981. *fn1"

 I conclude, upon further consideration, that defendants were not entitled in law to the charge previously given. *fn2" It will not be repeated, either within the context of "wrongfulness" or of "intent." I construe the Hobbs Act to proscribe the obtaining of property by force or violence, or by fear engendered by the threat of force or violence; and that a defendant's belief in his entitlement to the property does not constitute a legal defense.

 With the sole exception of United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973), whose special circumstances are considered infra, the parties cite no case, and the Court has found none, where the use of inherently wrongful acts to obtain property has been excused by the actor's belief, or even the assumed fact, that he was entitled to it. On the contrary, a consistent line of authority points the other way; and for sound public policy reasons.

 In United States v. Pignatelli, 125 F.2d 643 (2d Cir. 1942), defendant was convicted of violating a federal statute forbidding the use of the mails in furtherance of an extortion scheme. Specifically, the statute proscribed the mailing of any communication "addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another..." The defendant, Ludovic Pignatelli, laid claim to the title of "Prince Pignatelli," as did his distant relative, Guido Pignatelli, who had had the good fortune to marry a wealthy widow named Henrietta Hartford. Disputes having arisen between Ludovic on the one hand, and Guido and his wife (now "Princess Pignatelli") on the other, Ludovic sought to obtain substantial amounts from these other individuals, and threatened, in a mailed communication which proved to be his undoing, that if his claims were not settled, he would refer to them in an autobiography he was writing, containing a chapter entitled: "Fakers' Titles in the U.S.A.," listing Guido and Henrietta among the fakers. At trial, Ludovic offered to show that, in fact, he had the sole right to the title of Prince. The Court of Appeals, affirming the conviction, held that this question of entitlement was irrelevant, and the evidence properly excluded. The court reasoned that Ludovic's use of an explicitly illegal means to enforce his perceived right branded him as an extortioner, entirely without regard to the existence vel non of that perceived right:

 
"Threats to damage another's reputation are no proper means for determining a controversy. It may be adjusted either by suit or by compromise but settlement must not be effected by using defamation as a club. The threat to publish the book for such a purpose was unlawful and it made no difference whether Ludovic had the sole right to be called Prince or not. Consequently the evidence that he had a superior title was properly excluded." 125 F.2d at 646.

 The court in Pignatelli found support in a New York State court decision, People v. Eichler, 75 Hun. 26, 26 N.Y.S. 998, 999, in which that court, construing a New York statute declaring it a crime to threaten a person with a criminal prosecution for the purpose of extorting money, said:

 
"The fact that the person who in writing or orally makes such a threat for such a purpose believes, or even knows, that the person threatened has committed the crime of which he is threatened to be accused, does not make the act less criminal."

 New York decisions are instructive because the legislative history of the Hobbs Act makes it clear that Congress, in drafting the statute, intended to adopt common law and statutory definitions of extortion, particularly as articulated in New York. *fn3" For that reason, I attach a particular significance to People v. Fichtner, 281 App.Div. 159, 118 N.Y.S.2d 392 (2d Dept. 1952), aff'd, 305 N.Y. 864, 114 N.E.2d 212 (1952). Defendants were managers of a supermarket. Having detected a customer in the attempted theft of a jar of coffee, defendants threatened this individual with arrest and resulting adverse publicity, unless he paid the store $ 75, and signed a paper admitting that during the course of several months he had unlawfully taken merchandise from the store in that amount. Defendants were charged under §§ 850 and 851 of the New York Penal Law. Section 850 provided: "Extortion is the obtaining of property from another ... with his consent, induced by a wrongful use of ... fear ..." Section 851 provided that "fear, such as will constitute ...


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