United States v. Wechsler

408 F.2d 1184

Opinions

PER CURIAM:

A divided panel of this court affirmed the convictions of these defendants under 18 U.S.C. §§ 371, 1952, on February 5, 1968, 392 F.2d 344. On March 7, 1968, the court denied a petition for rehearing en banc by a vote of five to one, with one judge abstaining. Subsequently, the original panel unanimously affirmed denial of a motion for a new trial lodged in the district court, 406 F.2d 1032. Recently the same panel authorized the filing of a second petition for rehearing based upon the decision of the United States Supreme Court in United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (Jan. 13, 1969). In response to our invitation, the appellants and the United States have submitted briefs and we have carefully considered them. After consultation with non-panel members of the court, we now reject the second petition for rehearing.

We do not read Nardello as undercutting our prior decision. The issue that divided us before was that of the duration of bribery admittedly prohibited by the State of Virginia — whether it extended to that point in time at which the zoning corruption was accomplished. We thought that it did despite language in the Virginia cases that the crime, of bribery is complete when the bribe is paid.¹ Doubtless in Virginia an indictment need not charge that the briber got his quid pro quo, but it does not follow that the Supreme Court of Appeals of Virginia would adopt the same language in construing its statute if the payment and receipt of the money were beyond the jurisdiction. We think it not at all clear that if these corrupt zoning officials had received their bribes in the District of Columbia, for example, that their subsequent activity in Virginia to procure rezoning would be beyond the reach of Virginia’s bribery statute.

Nardello,2 supra, displays, we think, some degree of impatience with fine lines, careful distinctions and labels. It rejects the contention that “peculiar versions of state terminology are controlling,” and looks at the elements of state crime generically. The question is said to be “whether the particular state involved prohibits the extortionate activity charged.” We do not doubt that Virginia does. It is made plain that the term “extortion” as used in the Travel Act was not intended to track closely the legal understanding under state law. It is enough that the corrupt activity of the appellants in procuring rezoning was illegal under Virginia law.

The petition for rehearing is Denied.

1 . We noted that Cotten’s bribe was deposited in his account two days after enactment of the Travel Act. 392 F.2d 344, 347.

2 . The Supreme Court noted probable jurisdiction in Nardello on June 17, 1968, the same date on which it denied certio-rari in this case.