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United States v. Kemble

decided: September 4, 1952.

UNITED STATES
v.
KEMBLE ET AL.



Author: Hastie

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

This appeal presents important questions of the construction and application of the Act of July 3, 1946,*fn1 the so-called Hobbs Act, which makes it a crime against the United States to engage in acts of violence designed to obstruct commerce by extortion. An indictment under Section 5*fn2 of the statute charged Truck Drivers and Helpers Union, Local 676, and Aaron Kemble, one of its business agents, with acts of violence against one Elwood Leonard and property in his possession, pursuant to their "plan and purpose to obstruct, delay and affect commerce and the movement of certain articles and commodities in commerce by extortion". The defendants were tried together and both were convicted. Kemble was sentenced to two years imprisonment and the union was placed on probation for three years. Both have appealed.

The evidence showed that Leonard, a truck driver employed by Doehler-Jarvis Corporation of Pottstown, Pennsylvania, transported a shipment of merchandise by motor truck from the Pottstown plant of his employer to Camden, New Jersey, where he attempted to make delivery of part of the merchandise at the RCA-Victor plant before proceeding elsewhere. Leonard had unloaded most of the RCA consignment when Kemble interposed. There is adequate proof that Kemble, after ascertaining that Leonard was not a member of or cleared by Kemble's union, stopped Leonard from unloading the interstate shipment and employed actual and threatened violence against Leonard and the property in his possession.

The evidence of Kemble's purpose was supplied by the truck driver Leonard himself and by Earle Lafferty who was receiving the shipment for the consignee as it was unloaded by Leonard. Lafferty testified as follows:

"* * * he [Kemble] asked for a union card or book, and the man [Leonard] didn't have any, and he said, You will have to have a helper from the local unload the truck, and there would be a day's wages for a man which was $10.00."

The driver, Leonard, testified to the same effect:

"He [Kemble] told me that I had to put a union man on the truck to unload. I said 'What for?' He said 'Because the union rules it.' I said 'I don't believe so. We are delivering our own stuff and the union rules say we can.' He said 'You will have to hire another man.' I forget offhand what it was. It was in the neighborhood of $10. I said 'I am not authorized to pay him * * *'"

The defendants offered no proof or rebuttal whatever. Thus, on the issue of purpose it was reasonable for the jury to conclude that Kemble, understanding that Leonard did not want or need a helper and was not authorized to employ one, nevertheless forcibly insisted that Leonard pay $10, described as a day's wages, for a supernumerary to do what Leonard himself was paid to do and was accomplishing when Kemble intervened.

Is violence with such design within the statutory meaning of extortion defined in the Hobbs Act as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force * * *"?*fn3 More narrowly, is the payment which Kemble tried to compel such a levy of tribute as amounts to forceful "obtaining of property from another"? Or, does analysis of the attempted transaction as an exchange of wages for services, albeit a forced payment for and a forced acceptance of services, establish the absence of some essential of Hobbs Act extortion?

Certainly, as a matter of semantics, the quoted words of the statute, "obtaining of property from another", are broad enough to cover Kemble's objective. And an examination of the legislative history of the statute convinces us that Congress intended such comprehensive coverage.

Both the original "Anti-Racketeering Act" of 1934, 48 Stat. 979, and the amendatory reenactment of 1946, 60 Stat. 420, which controls the present indictments, are criminal sanctions directed against interference with interstate commerce by coercive conduct in the nature of extortion. Within this area the original Act proscribed, among other things, the use of threats or force to obtain, "the payment of money * * * not including, however, the payment of wages by a bona-fide employer to a bona-fide employee". 48 Stat. 979, 980. The construction of this exception became a problem for the courts. In United States v. Local 807, 1942, 315 U.S. 521, 62 S. Ct. 642, 86 L. Ed. 1004, the Supreme Court analyzed this exception in considerable detail. One of its conclusions was that "* * * an outsider who 'attempts' unsuccessfully by violent means to achieve the status of an employee and to secure wages for services falls within the exception. And where * * * the offense charged is conspiracy to violate the section, the defendants are entitled to immunity if their objective is to become bona fide employees and to obtain wages in that capacity, even though they may fail of their purpose". 315 U.S. at page 531, 62 S. Ct. at page 646, 86 L. Ed. 1004.

In 1945, the House Committee on the Judiciary reported the bill which became the 1946 revision of the statute. Beyond formal reorganization and improvements in language the principal change accomplished by the new bill was the elimination of the exception the effect of which had been stated in the Local 807 case. More particularly, the 1946 reenactment covered interference with interstate commerce by actual or attempted "extortion" and defined "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force * * *." But, different from the original statute no exception was made for cases where the property involved should be money demanded to be paid in the form of wages. This change was deliberate. The committee report shows that Congress had the original exception and its effect foremost in mind, for that report sets forth in full text the Supreme Court opinion in United States v. Local 807 construing the controversial exception, and little else. And throughout the ensuing debate on the House floor, proponents of the bill talked principally about the undesirable narrowing of the original statute which had resulted from judicial construction of the exception. 91 Cong.Rec. 11899-11922 (1945). The debate was opened for the proponents of the bill with an explanatory statement by Congressman Hancock that "This bill is designed simply to prevent both union members and nonunion people from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce." 91 Cong.Rec. 11900. Speaker after speaker expressed essentially the same view of the purpose and effect of the bill. Equally instructive was the effort of Congressman Celler to amend the bill from the floor by inserting a stipulation that extorted property should not include "wages paid by a bona-fide employer to a bona-fide employee". 91 Cong.Rec. 11913-11917. Not only was this amendment defeated but the debate on it made clear the prevailing view that such solicitude toward the forced payment of wages would destroy the principal intended effect of the bill and preserve the strictures of the Local 807 case.

In these circumstances, the conclusion seems inescapable that Congress intended that the language used in the 1946 statute be broad enough to include, in proper cases, the forced payment of wages. We say "in proper cases" advisedly. For it is not necessary that we here consider the great variety of circumstances in which coercion may be involved in the payment of wages We need not consider the normal demand for wages as compensation for services desired by or valuable to the employer. It is enough for this case, and all we decide, that payment of money for imposed, unwanted and superfluous services such as the evidence shows Kemble attempted to enforce here by violent obstruction of commerce is within the language and intendment of the statute.

A final observation on this phase of the case. We have considered that the original "Anti-Racketeering" Act expressly preserves "the rights of bona-fide labor organizations lawfully carrying out the legitimate objects thereof * * *", and that by fair inference the Hobbs Act does the same thing. But the word "lawfully" is an important limitation. It is all important here since no federal or state sanction makes Kemble's violent conduct lawful.

This disposes of the principal contention of Kemble. He has advanced others concerning the admission of evidence and the content of the prosecutor's summation. We are not persuaded that any of these contentions is well founded. We find no error in the conviction of Kemble.

The case against the union involves the additional question whether the organization was criminally responsible for Kemble's acts. Proof of responsibility had to meet a statutory standard imposed by Section 6 of the Norris-LaGuardia Act, 29 U.S.C.A. ยง 106, as recently construed by the Supreme Court in United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 67 S. Ct. 775, 91 L. Ed. 973.

It is not disputed that Section 6 of the Norris-LaGuardia Act applies to proceedings under the Hobbs Act.*fn4 And Section 6 provides that neither an individual nor a labor organization can "be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof". In the Carpenters case, the Supreme Court reasoned that under the quoted language liability may not be predicated on a showing which would satisfy merely the requirements of the tort doctrine of respondeat superior or even the stricter normal criminal law doctrine which defines the area of "corporate criminal responsibility for the acts of officers and agents in the course or scope of employment". Beyond both of these there must be "clear proof that the particular act charged, or act generally of that type and quality, had been expressly authorized, or necessarily followed from a granted authority * * * or was subsequently ratified by [the] association * * * after actual knowledge of its occurrence." 330 U.S. at 406-407, 67 S. Ct. 781, 91 L. Ed. 973.

It is noteworthy that the Court did not deal with "participation" by the labor organization as a category distinct from "authorization" or "ratification". The reason seems clear. In the Carpenters case, as in this case, an organization was indicted solely on the basis of acts of its agents. No effort was made to show any "participation" of the organization except insofar as acts of agents may have been authorized. Thus, demonstration that there was no sufficient proof of union "authorization" by the same token negatived union "participation". Any different result would have required the invocation of fiction which has no proper place in the imposition of punishment.

There was a dissent in the Carpenters case. The dissenting Justices pointed out that, under the Court's construction of Section 6, responsibility of a union for acts of its officers or members would be limited for all practical purposes to cases where the wrongdoing in question or similar wrongdoing had been authorized or approved by vote at a union meeting or some equally clear manifestation of group will. The dissenting Justices seem to have believed that such doctrine as normally limits criminal responsibility for acts of agents, applied in conjunction with the ...


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