United States v. Frank Rindone

631 F.2d 491, 1980 U.S. App. LEXIS 15208
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 1, 1980
Docket79-1457
StatusPublished
Cited by48 cases

This text of 631 F.2d 491 (United States v. Frank Rindone) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Frank Rindone, 631 F.2d 491, 1980 U.S. App. LEXIS 15208 (7th Cir. 1980).

Opinions

PER CURIAM.

Defendant-appellant Frank Rindone was an electrical inspector employed by the Chicago Department of Electrical Inspection. Following an FBI investigation of Rin-done’s conduct in accepting payments from electrical contractors in exchange for the issuance of work permits, defendant was charged on October 31, 1978 in a three-count indictment with violating the Hobbs Act, 18 U.S.C. § 1951.1 After a jury trial, defendant was found guilty on one count of affecting commerce and attempting to do so by extorting $100 from an electrical contractor, Lee Roy Harper, under color of official right.

On appeal, defendant asserts the following grounds for reversal: (1) insufficient nexus with interstate commerce to invoke jurisdiction under the Hobbs Act, (2) insufficient evidence that the receipt of payment was under color of official right, and (3) denial of defendant’s sixth amendment right to effective counsel by the court’s submission to the jury of a transcript of a tape recording without notifying counsel.

I.

The most plausible of defendant’s arguments is that because the Federal Bureau of Investigation (FBI) supplied the money used in the extortionate transaction, no depletion of the payor’s assets was possible and thus the nexus with interstate commerce is not sufficient to invoke Hobbs Act jurisdiction. Defendant’s argument, however, fundamentally misreads the Act and [493]*493the line of judicial interpretation it has spawned.

The Hobbs Act proscribes not only the acts of obstructing or affecting interstate commerce through extortion but also proscribes “attempts ... so to do.” In short, a section 1951 violation is complete when one attempts to induce a victim engaged in interstate commerce to part with property. United States v. Glynn, 627 F.2d 39, at 42 (7th Cir. 1980); United States v. Frazier, 560 F.2d 884, 887 (8th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978). Thus, sufficient evidence to prove an attempt to extort has been found even where the payment demand was made but the victim refused to comply. United States v. Rosa, 560 F.2d 149 (3d Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977). In the present case, Rindone’s offense was complete at the time he demanded payment but before the actual transfer of money.

In United States v. Staszcuk, 517 F.2d 53, 60 (7th Cir.) (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975), then-judge Stevens noted that the “jurisdictional inquiry must, ... focus on the situation at the time of the offense.... No actual effect on commerce occurred either before or after that date. It was, nevertheless, entirely reasonable for the jury, assessing probabilities as of that time, to find that a potential effect on commerce had been proved.” This approach the court found justified on the theory that in enacting section 1951 “Congress was as much concerned with the threatened impact of the prohibited conduct as with its actual effect.” Id. at 57. Taking note of the federal interest in deterring even futile threats to interstate commerce, this court found that “jurisdiction in the particular case is satisfied by showing a realistic probability that an extortionate transaction will have some effect on interstate commerce” as measured from the time of the offense. Id. at 60.

The question here then becomes whether, viewing the evidence in the light most favorable to the government, there is sufficient evidence that would allow a jury to find that a “realistic probability” existed at the time of the payment demand that Harper’s assets would be depleted by the extortionate transaction. It is undisputed here that Harper, at the time of the transaction, was engaged in interstate commerce. His business regularly purchased wire and other electrical equipment from sources outside the State of Illinois. This is not a situation, as in United States v. Elders, 569 F.2d 1020 (7th Cir. 1978), where no future interstate purchases were even possible because the victim had long since ceased to purchase out-of-state goods and had decided to go out of business and dissolve his corporation. There is nothing in the record to indicate that Harper’s business would be anything but fully viable or that interstate goods purchases would cease after the illegal transaction. Thus, the fortuitous use of FBI funds after completion of the extortion attempt does not in any way diminish the “realistic probability” that, at the time of the attempt, Harper’s assets would be potentially depleted.

This reading of the Hobbs Act jurisdictional requirement is amply supported by authority in this and other circuits. In United States v. Crowley, 504 F.2d 992, 994 (7th Cir. 1974), involving a police protection scheme, jurisdiction was upheld on a depletion of assets theory notwithstanding that the victim tendered the extortion payment with FBI-provided money. A depletion of assets theory has also been sustained in a number of cases where it was factually impossible that the extortion money could ever affect interstate commerce because the payment was intended to be immediately recovered, United States v. Phillips, 577 F.2d 495 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978), where the victim corporation was an FBI-created shell that in fact had no interstate dealings, United States v. Brooklier, 459 F.Supp. 476 (C.D.Cal.1978), and where the entity extorted was only a speculative venture that never became established or purchased goods interstate, United States v. Bellomini, 454 F.Supp. 44, 47 (E.D.Pa.1978). [494]*494As the court noted in Brooklier, “[t]his extortion completed a plan that would have actually affected commerce but for a fact unknown to defendants, /. e., that [the victim] was a company not actually engaged in commerce.” Id. at 478. The presence here of a fact not known to Rindone, i. e., that the FBI provided the payoff money, is likewise irrelevant to the jurisdictional inquiry. That the extortion could not at the moment of the payoff have actually affected commerce is not enough to defeat the jurisdictional nexus. All that is required is the showing made here that at the time of the attempt, a realistic probability existed that interstate commerce would be affected.

Our finding here is also supported by the well-settled law in this circuit that jurisdiction is satisfied by an implied, even unrealizable, threat to affect the future business operation of the victim if the extortionate demand is not met. United States v. Kuta, 518 F.2d 947, 951 (7th Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975); United States v. Crowley,

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Bluebook (online)
631 F.2d 491, 1980 U.S. App. LEXIS 15208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-frank-rindone-ca7-1980.