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 ...