The opinion of the court was delivered by: Platt, District Judge.
The defendants, Jack Green and General Laborers' Local 397 of
Granite City, Illinois, a Labor Union, etc., were indicted on
nine counts. The first eight counts charged a violation of
18 U.S.C.A. § 1951, and the ninth count charged a conspiracy.
18 U.S.C.A. § 3731. The defendants were tried by a jury on three
substantive counts and the conspiracy count. The Honorable J.
Leroy Adair was the presiding trial judge. The jury found the
defendants guilty on two counts, which charged in substance that
the defendants attempted to extort from an employer engaged in
repair work on an interstate waterway, his money, in the form of
wages to be paid for imposed, unwanted, superfluous, and
fictitious services. There was no charge that defendants were
seeking personal gain but only to extort wages for
The defendants filed a motion for acquittal before the verdict.
The decision on it was reserved by Judge Adair. Rule 29(b)
Federal Rules Criminal Procedure, 18 U.S.C.A. After the verdict
the defendants filed a motion for new trial. Judge Adair heard
arguments and denied these motions, but allowed a motion for each
defendant in arrest of judgment by written order. D.C.,
135 F. Supp. 162. The order was based upon lack of jurisdiction of the
offense on two grounds,
(1) The indictment did not charge facts to set
forth a violation of Section 1951, and
(2) If the act covered the activity alleged it was
This portion of the order is set forth verbatim by the Supreme
Court in United States v. Green, 350 U.S. 415, 76 S.Ct. 522. The
government appealed directly to the Supreme Court by virtue of
18 U.S.C.A. § 3731.
The Supreme Court issued a mandate which in part stated:
"[T]hat this cause be, and the same is hereby,
remanded to the United States District Court for the
Southern District of Illinois for proceedings in
conformity with the opinion of this court."
At this stage of the proceedings this court was assigned to the
case due to the death of Judge Adair.
The defendants insist that Rule 25 of Fed.Rules Crim.Proc. is
applicable and that this court is duty bound to review the
evidence and when the verdict is manifestly against the weight of
the evidence grant a new trial. Rule 25 provides:
"If by reason of absence from the district, death,
sickness or other disability the judge before whom
the defendant has been tried is unable to perform the
duties to be performed by the court after a verdict
or finding of guilt, any other judge regularly
sitting in or assigned to the court may perform those
duties; but if such other judge is satisfied that he
cannot perform those duties because he did not
preside at the trial or for any other reason, he may
in his discretion grant a new trial."
The rule requires this court "to perform the duties to be
performed by the court after a verdict". In the instant case the
trial judge denied both a motion for new trial and for acquittal.
After a reversal of the order allowing a motion in arrest of
judgment the only duty to be performed is to pronounce sentence.
If this court were to again consider these motions it would be
acting as a court of review. Denial of a motion for new trial is
within the discretion of the court. It is not reviewable where no
error in ruling on evidence or in the charge to the jury is
assigned. United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
247, 60 S.Ct. 811, 84 L.Ed. 1129.
Counsel for defendants have quoted from the opinion of the
Supreme Court in an attempt to establish that Judge Adair did not
actually rule on the motions for new trial or for acquittal, but
merely denied these motions "logically" to allow the motion in
arrest of judgment. Of course, the Supreme Court could only pass
upon the sufficiency of the indictment under 18 U.S.C.A. § 3731.
Judge Adair entered an order, after hearing argument,
unequivocally denying motion for new trial and motion for
acquittal, and the Supreme Court recognized this in its opinion.
At page 417 of 350 U.S., at page 524 of 76 S.Ct., the Supreme
"Appellees each filed motions for acquittal or in
the alternative for a new trial. These the trial
court specifically denied. The opinion of the trial
court, D.C., 135 F. Supp. 162, says nothing as to
failure of evidence to support the allegations of the
indictment, or as to trial errors. Instead the court
relied upon the absence of criminality in the acts
charged, and it was therefore logical for the trial
court to deny acquittal and new trial. The court
thought persuasive our recent cases which held union
efforts to secure `made work' for their members were
not unfair labor practices. From its view that
extortion as defined in the Hobbs Act covers only the
taking of property from another for the extortioner's
personal advantage, the necessity to arrest the
judgment followed. Rule 34, Fed.Rules Crim. Proc.,
"We do not agree with that interpretation of the
section. The Hobbs Act was passed after this Court
had construed § 2 of the Federal Anti-Racketeering
Act of 1934, 48 Stat. 979, in United States v. Local