jurisdiction for the specific conduct prosecuted under the Hobbs Act in this case. Support for this holding can be found in the legislative history of the Freedom of Access to Clinic Entrances ("FACE") Act wherein Congress studied the effect upon interstate commerce of violent and obstructive conduct directed towards reproductive health centers. See, e.g., H.R. Conf. Rep. No. 488, 103d Cong., 2d Sess. 7 (1994), reprinted in 1994 U.S.C.A.A.N. 724, 724 (finding that violent protest conduct directed at reproductive health clinics interferes "with the interstate commercial activities of health care providers"); H.R. Rep. 306, 103d Cong., 2d Sess. 7-8 (1993), reprinted in 1994 U.S.C.A.A.N. 699, 704-05 (relating story of patient who traveled from Virginia to Kansas to obtain abortion for fetus with malformed heart).
The aggregate effect of violence directed at reproductive health facilities upon interstate commerce is actually increasing the interstate nature of abortion services. Because of the fear of violence, the number of doctors performing these services has declined, particularly for women in rural areas, leaving only 17% of U.S. counties with abortion providers. H.R. Rep. No. 306 at 8, 1994 U.S.C.A.A.N. at 705. This in turn has compelled the physicians who do perform abortions to travel periodically to underserved communities in neighboring states, as did the late Dr. David Gunn. See H.R. Rep. No. 306 at 7, 1994 U.S.C.A.A.N. at 704. For further support that obstructive and violent conduct targeting reproductive health clinics constitutes interference with interstate commerce to a degree sufficient enough to satisfy Lopez, see United States v. Wilson, 73 F.3d 675, 1995 WL 765450, at *2-13 (7th Cir. 1995) and Cheffer v. Reno, 55 F.3d 1517, 1520 (11th Cir. 1995) wherein the post-Lopez constitutionality of the FACE Act was upheld.
Furthermore, it can hardly be doubted that the specific act of a butyric acid attack against a medical clinic is an activity which, through repetition, has a substantial effect on interstate commerce; Congress found as much in considering the FACE Act. See H.R. Rep. No. 306 at 9, 1994 U.S.C.A.A.N. at 706 (57 butyric acid attacks against clinics in 1992 with estimated cleanup costs of $ 500,000). The court is of the opinion that these congressional findings respecting the effect upon commerce of antiabortion violence supports the conclusion that the government has proven a sufficient nexus with interstate commerce to invoke federal jurisdiction in this case.
Because a rational juror could have readily found that the defendants' conduct interfered with interstate commerce, the court will not disturb their verdict on this ground.
2. "Obtaining" Property
Defendant Arena argues that the facts proven by the government do not constitute "obtaining" of property within the meaning of the Hobbs Act. Defendant posits that "if he [the extorter] doesn't control the property, he doesn't exercise dominion over that property, he doesn't violate the statute." Transcript of Motions, Exh. A attached to Wentworth Mem. of Law, Doc. 74, at 6. Arena does not claim that the benefit must accrue to the extorter, id. at 8, 9, but that the benefit must at least be diverted to someone else by the extorter, id. at 10. Arena maintains that the "obtaining" must be done with a "larcenous intent." Id. at 7. This argument, that a defendant must have the specific intent to steal in order to be convicted of Hobbs Act extortion, is premised on the notion that terms in the Hobbs Act must be defined by reference to the New York extortion statute from which the federal law was derived. Id. at 6-7. Defendant Wentworth joins these arguments, arguing that the mere destruction or deprivation of property is not the obtaining of property. Id. at 25.
The court starts from the uncontested precept that the right to conduct a lawful business free from threats and violence is property within the meaning of the Hobbs Act. Town of West Hartford v. Operation Rescue, 915 F.2d 92, 101 (2d Cir. 1990), cert denied sub nom. Syversen v. Summit Women's Ctr. West, Inc., 126 L. Ed. 2d 144, 114 S. Ct. 185 (1993); United States v. Tropiano, 418 F.2d 1069, 1077 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1262 (1970). Like other terms in the Act, "obtaining" is given a broad definition. West Hartford, 915 F.2d at 101. For instance, an extorter need not receive the benefit of his conduct. United States v. Green, 350 U.S. 415, 420, 100 L. Ed. 494, 76 S. Ct. 522 (1956); United States v. Clemente, 640 F.2d 1069, 1079-80 (2d Cir.), cert. denied, 454 U.S. 820 (1981).
But defendants argue that the property must flow to someone; the intent must be larcenous, not merely mischievous. Transcript of Motions, Exh. A attached to Wentworth Mem. of Law, Doc. 74, at 6. Defendant Arena relies upon a number of cases for this mens rea requirement -- not only in his post-trial motions, but in his pretrial motions and charge conference arguments. See id. at 6-7; Arena Mem. of Law in Support of Request to Charge, Doc. 85, at 4. The court has examined these authorities and found them fatally distinguishable. United States v. Nedley, for instance, stands for the proposition that robbery under the Hobbs Act requires the specific intent to steal. 255 F.2d 350, 357 (3d Cir. 1958). The court has no quarrel with that contention, since the instant case involves extortion.
Similarly, United States v. Evans concerned extortion under color of official right, not extortion by force or fear. Compare, e.g., 504 U.S. 255, 261 (1992) ("Congress has unquestionably expanded the common-law definition of extortion to include acts by private individuals pursuant to which property is obtained by means of force, fear, or threats.") with id. at 263-64 ("Although the present statutory text is much broader than the common-law definition of extortion because it encompassed conduct by a private individual as well as conduct by a public official, the portion of the statute that refers to official misconduct continues to mirror the common-law definition.") (footnotes omitted). Arena's reliance on United States v. Enmons, 410 U.S. 396, 35 L. Ed. 2d 379, 93 S. Ct. 1007 (1972) is also misplaced, because that case was decided on the basis that the force or fear used was not "wrongful," id. at 399-400, not because the defendants lacked the intent to steal.
The only precedent which states the proposition that extortion by force or fear is a larceny-type offense is United States v. Sweeney, 262 F.2d 272, 275 & n.3 (3d Cir. 1959). For support of that point, the Third Circuit cited Nedley, which has been distinguished, and in footnote 3, made reference to the New York state definition of extortion. The court concedes that prior to the adoption of the Hobbs Act the New York crime of extortion was a specific intent crime, e.g., People v. Clark, 242 N.Y. 313, 328, 151 N.E. 631, 636 (N.Y. 1926), and remains so today, N.Y. Penal Law § 155.05(1)&(2)(e) (McKinney 1988 & Supp. 1996) (all forms of larceny require "intent to deprive another of property or to appropriate the same"). However, that concession does not compel the conclusion that Hobbs Act extortion requires specific intent. Indeed, the cases interpreting the federal crime of extortion are to the contrary.
This precise holding -- that is, Sweeney's conclusion that Hobbs Act extortion requires specific intent -- was considered and rejected in United States v. Bryson, 418 F. Supp. 818, 826 (W.D. Okla. 1975). Similarly, in United States v. Furey, the district judge observed that a proposed version of the Hobbs Act included the modifying phrase "knowingly or willfully." 491 F. Supp. 1048, 1059 (E.D. Pa.), aff'd, 636 F.2d 1211 (3d Cir. 1980), cert. denied, 451 U.S. 913 (1981). The judge reasoned that the omission in the final version "clearly indicates that the Hobbs Act was not intended to be a specific intent statute." Id. Other cases are in accord: United States v. Warledo, 557 F.2d 721, 729 n.3 (10th Cir. 1977); United States v. Green, 246 F.2d 155, 159 (7th Cir.), cert. denied, 355 U.S. 871, 2 L. Ed. 2d 76, 78 S. Ct. 122 (1957). This court agrees with these authorities and holds that extortion under the Hobbs Act does not require the specific intent to deprive or appropriate another's property, but is rather a general intent crime.
Thus, even if defendants did not possess the specific intent to steal the property of the victims, they still could have "obtained" their property for purposes of the Hobbs Act. The government directs the court's attention to United States v. Lewis, a Seventh Circuit case that supports the contention that an extorter can "obtain" property without receiving or directing a tangible benefit. Footnote 3 of that opinion reads
Most extortionists undoubtedly seek a direct and tangible benefit from their demands. Others do not, however, because they may be motivated only by a desire to humiliate the victim or a third party, and the discomfort they cause is the gain they derive from the scheme. Nonetheless, the Hobbs Act prohibits certain interferences with interstate commerce, and an extortion demand may have the proscribed deleterious effect on such commerce, even though the defendant never receives a transfer of property from the victim.
797 F.2d 358, 364 n.3 (7th Cir. 1986), cert. denied, 479 U.S. 1093 (1987).
In this case, the jury had before it proof from which it could rationally conclude that the gain derived by Arena and Wentworth was the closing, even if temporary, of clinics offering medical services they considered abhorrent and immoral; and/or the publicity such conduct generated for their cause; and/or the potential for intimidating other physicians from performing abortions. Arena and Wentworth benefited not only from the psychic and moral assurance that there were, at least for a time, two fewer facilities where women could obtain abortions, but from the symbolic victory for their ideology. In accord is Northeast Women's Ctr. v. McMonagle, a civil RICO action against antiabortion activists wherein the predicate offenses were Hobbs Act violations. 868 F.2d 1342 (3d Cir.), cert. denied, 493 U.S. 901 (1989). The Third Circuit rejected defendant's challenge on appeal that an economic motive was required to sustain an extortion charge. Id. at 1349.
In this regard, this court points out that McMonagle, a 1989 Third Circuit case, appears to be at odds with that circuit's holding from thirty years earlier in Sweeney that extortion under the Hobbs Act requires a larcenous intent.
In obtaining the benefits described above, the defendants induced the victims to consensually depart with their right to conduct a lawful business free from violence and threats. Cf id. Because the evidence was easily sufficient to prove beyond a reasonable doubt that defendants obtained the property of defendant with the requisite intent, a judgment of acquittal is improper, and a new trial would not further the interests of justice.
3. Consent Induced By Force, Violence, or Fear
Defendant Arena argues that in order for an extorter to induce the consensual relinquishment of property, the victim must know the extorter's identity. Transcript of Motions, Exh. A attached to Wentworth Mem. of Law, Doc. 74, at 10. Wentworth agrees, contending that there must be some precursory communication of a threat in order for the crime of extortion to be committed. Wentworth Mem. of Law, Doc. 74, at 7. This, the court believes, ignores the plain wording of the statute which provides that the consent of the victim can be induced by "actual or threatened force, violence, or fear." 18 U.S.C. § 1951(b)(2) (italics added).
Furthermore, the weight of authority contravenes defendants' assertions. For instance, the Second Circuit in United States v. Billups stated that "the fear need not be the consequence of a direct or implicit threat by the defendant." 692 F.2d 320, 330 (2d Cir. 1982) (citing United States v. Duhon, 565 F.2d 345 (5th Cir.), cert. denied, 435 U.S. 952, 55 L. Ed. 2d 802, 98 S. Ct. 1580 (1978)). Similarly, in United States v. Capo the Second Circuit held that "it is not necessary that the fear have been caused by the defendant" in order to sustain a Hobbs Act extortion conviction. 791 F.2d 1054, 1062 (2d Cir. 1986), rev'd on other grounds, 817 F.2d 947 (2d Cir. 1987) (en banc).
In support of this point, the Capo panel cited to Duhon and to United States v. Margiotta, 688 F.2d 108, 135 (2d Cir. 1982), cert. denied, 461 U.S. 913, 77 L. Ed. 2d 282, 103 S. Ct. 1891 (1983). The reference to Margiotta is presumably because that opinion endorses a Hobbs Act extortion theory wherein the defendant exploits the fear of a victim, even though the victim's fear was not caused by any initiative of the defendant. See id.
The court is of the opinion that these precedents are equally applicable to a theory of extortion by actual use of force or violence. That is, it is not necessary that Planned Parenthood or Dr. Yoffa knew that defendants were responsible for the butyric acid attacks. What is required is that defendants did (or attempted to do) and conspired to obtain the property of the victims by inducing them, through the wrongful use of actual force or violence, to consensually give up their property. The conduct supporting the charges of Hobbs Act extortion in the McMonagle case included unlawful trespasses into clinics, assaults upon clinic employees, and vandalism -- i.e., actual force and violence rather than threats. 868 F.2d 1342, 1345 (3d Cir.), cert. denied, 493 U.S. 901 (1989).
In the instant matter, the evidence proved beyond a reasonable doubt that the actual use of force or violence induced the victims to consensually relinquish their property to defendants. More specifically, the butyric acid attacks induced Planned Parenthood and Dr. Yoffa to decide to temporarily close their businesses. The proof was sufficient for the jury to find that this closing, or perhaps the actual termination of these businesses, was the end sought by defendants.
Although the court has addressed all the defendants' particularized challenges to the applicability of the Hobbs Act, defendant Wentworth has raised a more general complaint that the crime of federal extortion was never meant to apply to what amounts to criminal mischief. Wentworth Mem. of Law, Doc. 74, at 14. For this suggestion, Wentworth relies on this language from the en banc rehearing in United States v. Capo:
It is the sensitive duty of federal courts to review carefully the enforcement of our federal criminal statutes to prevent their injection into unintended areas of state governance. . . . Exercising that duty, we find it necessary to nullify this attempted application of the Hobbs Act to circumstances it was never meant to reach. Incremental extensions of federal criminal jurisdiction arguably present a more pernicious hazard for our federal system than would a bold accretion to the body of federal crimes. At a minimum, a clear extension of federal responsibility is likely to be sufficiently visible to provoke inquiries and debate about the propriety and desirability of changing the state-federal balance. Less abrupt, more subtle expansions, however, such as nearly occurred here, are less likely to trigger public debate, and, yet, over time cumulatively may amount to substantial intrusions by federal officials into areas properly left to state enforcement. By holding that the Hobbs Act does not encompass state-law bribery, we seek to demarcate a point beyond which Congress intended federal prosecutors not to pass.