January 27, 1959
UNITED STATES OF AMERICA, APPELLEE,
NICHOLAS A. STIRONE, APPELLANT.
Before BIGGS, Chief Judge, GOODRICH, MCLAUGHLIN, STALEY and HASTIE, Circuit Judges.
Per Curiam: A petition for rehearing is presented for our consideration. The grounds urged therein have been fully argued to this Court.We find no merit therein that would warrant a rehearing. Accordingly it will be denied.
BIGGS, Ch. J., dissenting: A fatal variance appears between the charge of the indictment and the proof. This Court held correctly that the indictment charged Stirone with obstructing the receipt of sand at Rider's plant but concluded that it was not error for the trial court to have charged that the interference with interstate commerce prohibited by the Hobbs Act, 18 U.S.C., Section 1951, could be found either on the basis of interference with the receipt of the sand or on the ground of obstruction with the shipping of steel from the Allenport plant of the Pittsburgh Steel Company which was in course of construction. Stirone was therefore tried on two charges. One, obstruction of the receipt of sand, and two, interference with delivery of steel from a plant not yet built. The first charge was laid in the indictment. The second was not. The doctrine of Berger v. United States, 295 U.S. 78, 81 (1935) cannot cure the error. It is clear in Berger that the crime for which Berger was convicted was within the words of the indictment, see 295 U.S. at pp. 81-83: the objection here is that the allegations of the indictment do not charge the crime for which Stirone was convicted.
I am also in accord with the views expressed in Judge Hastie's dissenting opinion. The statute is extended unreasonably to embrace interference with prospective distribution of steel from a factory in course of construction. The Allenport plant of the Pittsburgh Steel Company is not and was not a facility in interstate commerce. Cf. Mitchell v. Vollmer & Co ., 349 U.S. 427 (1955); Archer v. Brown & Root, Inc ., 241 F.2d 663, 669 (5 Cir. 1957).
Stirone preserved his rights by appropriate objections.
I therefore must respectively dissent from the order of this Court denying rehearing.
HASTIE, C. J., shares these views and joins in this dissent.
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