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United States v. Nedley


May 14, 1958


Author: Kalodner

Before BIGGS, Chief Judge, KALODNER, Circuit Judge, and WRIGHT, District Judge.

KALODNER, C.J.: Has the Hobbs Act*fn1 raised nob with centuries-old concepts of the crime of "robbery" to such extent that to establish its commission the Government need no longer prove (1) a specific intent to steal and to permanently deprive the owner or possessor of his property; (2) a "taking" and (3) a "carrying away"?

Otherwise stated: Is mere unlawful interference, by force, violence and/or putting in fear, with the dominion and control being exercised by the operator of a vehicle, with resulting obstruction or delay in the movement of articles or commodities in interstate commerce, "robbery" or an "attempt at robbery" under the Hobbs Act?

The District Court took the affirmative side with respect to the foregoing;*fn2 the Government did so below and does so here; the defendants, perforce vigorously and understandably so, disagree, since they were found guilty and sentenced for violation under the robbery provisions of the Hobbs Act.*fn3

Viewing the evidence in the light most favorable to the Government, as the jury's verdict required, the facts are as follows:

On August 4, 1955, George Moore and Perry Honaker were operating a tractor-trailer from St. Louis, Missouri, to Pittsburgh, Pennsylvania. The tractor was owned independently by Moore; Honaker acted as his helper. The trailer, owned by Refrigerated Food Distributor, contained merchandise for Gimbels Department Store in Pittsburgh.

Moore parked his truck off the highway near a gasoline station on Route 8 in Shaler Township, Allegheny County, Pennsylvania at around 6:30 P.M. and walked to an adjacent restaurant with Honaker. According to Moore, while they were there, Nedley, one of the defendants, questioned him about his destination and told him he would be unable to unload in Pittsburgh because of a general freight strike and that he should turn around and go back; Moore and Honaker left the restaurant and walked to the parked truck; Nedley at that time threatened to "hammer" them up and put them out of business if they moved the truck; the defendants Jochim, Baurhenn and Ciancio were present when the threat was made.

Moore phoned the Shaler Township Police and asked for protection; the police arrived at around 7:30 P.M. and after dispersing the striking truckers, who then numbered five, escorted the tractor-trailer to the Millvale Borough Line; Nedley and Jochim followed the truck in a Buick automobile driven by Ronnie Kanoza, now deceased; Baurhenn and Ciancio joined them in a Pontiac automobile driven by Ciancio; Moore's vehicle struck the Buick when it blocked his attempt to go through a busy intersection in Millvale; after the collision Jochim ran to the truck, jumped on the running board and struck Moore in the face through an open window; Moore grabbed a wrecking bar about eighteen or twenty inches long and opened the cab door, knocking Jochim from the running board; as Moore emerged from the tractor someone standing on the gas tank between the cab and the trailer jumped on him; Moore was disarmed by Nedley in the struggle and never struck anyone with the bar; however, he hit a couple of the defendants with his fists; Jochim knocked him down, one of them "stomped" him and put him "out of business"; Honaker was struck by one of the defendants while he was in the cab; he got out of the truck and struck one of the defendants, later identified as Nedley, on the back of the head with a tire iron; Honaker was injured in the leg when one of the defendants secured the tire iron and threw it at him as he ran to a nearby gasoline station.

With respect to the foregoing, the defendants, members of a striking teamsters union, vigorously denied the use of threats at the restaurant; Nedley stated that he merely exchanged union cards with Moore and asked him not to cross their picket lines; that he and the other defendants had been assigned picket duty at nearby freight terminals where union agreements had not been signed; the meeting with Moore and Honaker at the gasoline station on Route 8 was accidental; that the collision with Moore's truck in Millvale occurred as his car started through a green light; Jochim walked over to the truck; Moore attacked him with the wrecking bar and struck him in the face and arms as he attempted to ward off his blows; Nedley finally succeeded in disarming Moore; Nedley was then struck from behind and they all fell to the ground in the struggle; Ciancio and Baurhenn arrived during the melee and Baurhenn apparently joined in it.

The record further discloses that the police appeared on the scene shortly thereafter and immediately put an end to the Donnybrook fair. Moore and Honaker, along with Jochim and Nedley, were taken to the Millvale jail after receiving emergency treatment at a nearby hospital. The other defendants were taken directly to jail. All were charged with disorderly conduct in the Borough of Millvale. Moore and Honaker were released the following day and proceeded with the delivery of their cargo to Gimbels Department Store without further interruption.

The four defendants were indicted on two counts for violation of the Hobbs Act and a third count charging violation of the Conspiracy Act, 18 U.S.C. Section 371.

The first count charged the defendants with violation of the Hobbs Act in that they "did attempt to obstruct and delay commerce ... by robbery of the tractor and trailer, then and there in the possession of George R. Moore; to wit, by attempting to deprive the said possessor of said tractor and trailer of the power to exercise dominion and control over same by means of force and violence and causing him to fear injury to his person and to the property in his possession or custody; and specifically, by oral threat at Jess' Restaurant, on Pennsylvania Route No. 8 near Etna, Allegheny County, Pennsylvania, and by further threats and force and violence on or near East Ohio Street in Millvale, Allegheny County, Pennsylvania."

The second count charged the defendants with violation of the Hobbs Act in that they "in furtherance of a plan and purpose to obstruct and delay commerce and the movement of articles and commodities which were being transported in commerce ..." committed the acts charged in the first count both as to Moore and his helper, Honaker.

The third count charged the defendants "did conspire together and with each other ... to obstruct and delay commerce, and the movement of certain articles and commodities which were being transported in commerce ... by robbery of the tractor and trailer ..." by committing the acts charged in the first two counts, and that "in furtherance of said conspiracy to obstruct and delay commerce as aforesaid ... did assault, strike and injure George R. Moore and Perry Melvin Honaker ..."

Prior to the court's charge to the jury, the Government, at a side-bar conference anent defendants' motion for judgment of acquittal, agreed that the evidence had to sustain a finding that there must have been a robbery or an attempt to commit robbery as defined by the Hobbs Act, or a conspiracy to do so, and the case went to the jury on that theory.

The jury verdicts were as follows: Jochim and Nedley guilty on all three counts; Ciancio not guilty on all three counts; Baurhenn not guilty on the first and second counts but guilty on the third - the conspiracy count. As earlier stated, Kanoza, a participant in the events leading up to the fight, died shortly after the incident and consequently was not indicted. Jochim and Nedley were sentenced to pay a $1.00 fine on each of the three counts and to terms of imprisonment of fourteen months on count one, fourteen months on count two, and one year on count three. The sentences were to run concurrently. Baurhenn was fined $1.00 and committed to custody for a period of one year on the conspiracy count.

The District Court in its opinion, at 153 F.Supp. 887 (1957), denying the defendants' motion for judgment of acquittal or in the alternative for a new trial, stated at pp. 891, 892:

"... the indictments upon which the convictions are predicated appear loosely drawn by confining the offense of attempt to obstruct and delay commerce to the single element of 'robbery of the tractor and trailer.'

"To give legal credence to the convictions, therefore, it will be necessary to establish the offense of robbery as defined in the statute ...

"... I ... believe that a deprivation of possession by placing in fear and resort to physical force and violence for a period however brief is sufficient to complete the offense of robbery.

"... the definition of robbery as defined by Congress is not the common law definition. The statute does not impose the absolute requirement of a taking since the Act provides also for 'obtaining'. Nor does it require an asportation or that the perpetrator must intend to permanently deprive the owner or possessor of his property. The nature of the force or threats is considerably broader than the common law provisions.

"I am satisfied that the jury could have concluded, under the broad purview of the statute, that the overt acts, threats and violence on the part of defendants constituted robbery, more particularly depriving the persons in possession of dominion and control over the vehicle and cargo ..."

On these appeals the Government rather curiously disregards the District Court's view that the defendants' conduct "constituted robbery" but categorizes it instead as "an attempt to commit robbery".*fn4

The hard core of the Government's position here, as already indicated, amounts to this: Interference, by force and violence with one's lawful dominion and control of a vehicle, with resulting obstruction in interstate commerce, without more, constitutes robbery or attempted robbery under the Hobbs Act; in the statutory definition of robbery there is no requirement of a "taking" or attempted "taking" of the vehicle or its contents or of the asportation of either vehicle or its contents.

Thus, the Government contends, when the defendants threatened violence at the restaurant in Shaler Township should Moore and Honaker attempt to proceed with their tractor-trailer to Pittsburgh, the defendants' conduct amounted to attempted robbery under the Hobbs Act, and the same was true with respect to the episode in Millvale where the free-for-all ensued, because there the defendants by actual violence deprived Moore and Honaker "of possession, dominion and control" of their vehicle.*fn5

The decisional law is replete with extortion prosecutions under the Hobbs Act, but, prior to this case, no court has had the robbery provision before it for consideration. The extensive legislative history of the Act*fn6 which, it might be noted parenthetically the District Court did not consider, is particularly helpful in defining the precise scope of the statutory interdiction.

In House debate on the bill, Representative Hobbs, its sponsor, stated "there is nothing clearer than the definition of robbery and extortion in this bill. They have been construed by the Courts not once, but a thousand times. The definitions in this bill are copied from the New York Code substantially."*fn7 To the same effect are Representative Walter's statements "that definition is the definition of robbery contained in the New York Code",*fn8 and Representative Michener's statement that "there has been and will be so much talk about what constituted robbery and extortion and it is well to remember that the New York definitions are being used in this bill."*fn9

It is doubtful that legislative intent could be more clearly spelled out. That being so, we are required to look to the New York Penal Laws relating to robbery and the construction given them by the New York courts.*fn10

Section 2120 of the New York Penal Law defines robbery as "the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person or property ..."

Section 2121 of the New York Penal Law provides: "To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to overcome resistance to the taking ..."

It will be noted that in Section 2120 the term used is "taking" while Section 2121 uses "obtain".

The Courts of New York in construing the State's statutory definition of robbery have made no distinction between "taking" and "obtaining".

Further, while neither Sections 2120 and 2121 specify any requirement of "intent" or "asportation" or "carrying away", the New York courts have ruled that they are elements of robbery and must be established in order for a conviction to stand.

The foregoing was succinctly spelled out in People v. Koerber, 244 N.Y. 147, 153, 154; 155 N.E. 79, 82, (1926) as follows:

"... we find that the gist of robbery is larceny by force from the person (Penal Law, §§ 2120, 2122), and that the gist of larceny is the taking and carrying away of personal property of another with the specific intent to steal such property (Penal Law, § 1290). If on an indictment for larceny or robbery the testimony leaves uncertain the intent with which the accused took the property, the jury should be instructed to give the defendant the benefit of the doubt ... That the intent is usually to be inferred from the act does not change the rule that a taking without intent to steal is not larceny at common law ...

"Robbery, as thus defined, is 'a particular species * * * of crime' of which 'the actual existence of any particular * * * intent is a necessary element' within the meaning of Penal Law § 1220."

See also People v. Levan, 295 N.Y. 26, 64 N.E.2d 341 (1945) in which People v. Koerber, supra, was cited with approval.

That there must be an intention to "keep wrongfully", that which has been stolen, was held in Irving Trust Co. v. Leff, 253 N.Y. 359,364, 171 N.E. 569, 571 (1930). It was there said:

"To steal means to take away from one in lawful possession without right with the intention to keep wrongfully."

The construction by New York courts of their state's statutory definition of robbery is in complete accord with settled construction of common law robbery.

Robbery, at common law, is "the felonious and forcibly taking from the person of another of goods or money to any value by violence or putting him in fear." 4 Bl.Com. 241. The very gravamen of robbery is the felonious intent - animus furandi - the intention to steal.

In Commonwealth v. White, 133 Pa. 182 (1890) Mr. Chief Justice Paxson tersely pinpointed (1890) Mr. Chief Justice Paxson tersely pinpointed felonious intent with this statement (p. 188):

"If it was not done with a felonious intent, it was not robbery ..."

In United States v. Cohen, 274 F. 596, 597 (1921) we defined the statutory offense of stealing an interstate shipment to be the "unlawful taking and carrying away with intent to convert to the use of the taker and permanently deprive the owner."

In United States v. Kemble, 197 F.2d 316 (1952) we reversed because the trial judge had failed to adequately charge the jury with respect to animus furandi "of a specific intent to steal".

The Government vigorously urges that robbery, as defined by the Hobbs Act "varies from the requirements of common law robbery" and that "there is no absolute requirement of a 'taking' ... since the act also interdicts the 'obtaining'". It must be noted that in doing so it is merely echoing the District Court's statement, earlier quoted, that "The statute does not impose the absolute requirement of a taking since the Act also provides for 'obtaining'". As to that contention it need only be said, as earlier pointed out, that Section 2120 of the New York Penal Laws used the term "taking" while Section 2121 used "obtain or retain" and the courts of that state have never made any distinction between them. In this connection it may be observed that the predecessor to the present Hobbs Act (48 Stat. 979, 980), proscribed the conduct of one who "obtains or attempts to obtain" money by threat, force, coercion, etc.*fn11

We cannot subscribe to the proposition that Congress intended by the inclusion of the word "obtain" to scrap centuries-old concepts of the elements of a felony such as robbery and to obliterate requirements of "taking" and "carrying away". The same holds true with respect to "specific intent to steal" and to "permanently deprive" the owner or possessor of his property.

As the Supreme Court of the United States so pertinently observed in Morissette v. United States, 342 U.S. 246 (1952) at p. 263:

"The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.

"The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them."

To the same effect see United States v. Turley, 352 U.S. 407 (1957). It was there said (p. 411):

"We recognize that where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning."

It would be flogging a dead horse to extend discussion of the Government's untenable position. It is enough to say that the Government does not even venture an assertion that there is in the record an iota of evidence to even indicate, let alone establish, any specific intent on the part of the defendants "to steal" and "to take away - with the intention to keep wrongfully" the tractor-trailer.

The Government has chosen to premise its case against the defendants on its view that, as the District Court stated, "... the definition of robbery as defined by Congress is not the common law definition", and that obstruction of interstate commerce by threats, force or violence is "robbery" or "attempt to commit robbery" within the meaning of the term "robbery" as used in the Hobbs Act.

We disagree with the view of the Government and that of the District Court.

"Robbery" under the Hobbs Act, is common law robbery, and robbery as defined by the New York Penal Laws and construed by the courts of that State. In order to establish commission of the crime the Government must prove forcible taking and carrying away with the specific intent to steal personal property taken from the person of another by violence or putting in fear, and with the intention to permanently keep the property so taken.

The most the Government proved in this case was (1) threats of violence by the defendants at the roadside restaurant in Shaler Township should the tractor-trailer attempt to proceed to Pittsburgh, (2) an attempt by the defendants to harrass and impede the movement of the tractor-trailer at Millvale while on its way to Pittsburgh by "cutting-in" in front of it and "dragging", and (3) a free-for-all-fight when the tractor-trailer struck the defendants' Buick which was "cutting-in".*fn12

To categorize any or all of these events as "robbery" is to make a mockery of the term. Assuming that there was inexcusable unlawful interference both at the restaurant in Shaler Township and in Millvale, with the dominion and control being exercised by the operators of the tractor-trailer, with resulting violence, there was no "taking" of the vehicle, forcible or otherwise, nor was there evidence of intent to steal. As was so well said in People v. Flack, 125 N.Y. 324, 334, 26 N.E. 267, 270 (1891), cited with approval in Morissette v. United States, supra, at page 274:

"It is alike the general rule of law and the dictate of natural justice that to constitute guilt there must be not only a wrongful act, but a criminal intention."

For the reasons stated the judgment of conviction and sentence as to the defendants will be reversed and the cause remanded to the District Court with direction to enter a judgment of acquittal.*fn13

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