Appeal from the United States District Court for the Eastern District of Illinois- No. 75-27-E JAMES L. FOREMAN, Judge.
Cummings, Circuit Judge, Bauer, Circuit Judge, and Perry, Senior District Judge.*fn*
PERRY, Senior District Judge.
Defendants Charles Meyers and Jack Scoville were indicted by the Grand Jury for the Eastern District of Illinois upon a charge that they entered into a conspiracy to affect commerce by extortion in violation of the Hobbs Act, 18 United States Code, Section 1951.*fn1 The defendants moved to dismiss the indictment and the District Court granted the motion. On appeal the Government asks this court to remand the case and direct the District Court to reinstate the indictment. We reverse and remand.
1. At times pertinent hereto defendants CHARLES MEYERS and JACK SCOVILLE were trustees of the East Side Levee and Sanitary District, East St. Louis, Illinois.
2. At other times pertinent hereto defendants CHARLES MEYERS and JACK SCOVILLE were candidates for trusteeship and trustees-elect for the East Side Levee and Sanitary District.
3. At times pertinent hereto, the trustees of the East Side Levee and Sanitary District occupied a position of public trust where through the exercise of their judgment, contracts were to be awarded to contractors and suppliers doing business with the East Side Levee and Sanitary District, East St. Louis, Illinois.
4. From on or about the month of September, 1972 to on or about January, 1973, in the Eastern District of Illinois, the defendants CHARLES MEYERS and JACK SCOVILLE and others did conspire to affect commerce by obtaining property of another, with his consent, induced under color of official right, that is to say CHARLES MEYERS and JACK SCOVILLE with others did conspire to obtain in excess of $6,000, individually, that the defendants were not entitled to, in consideration for their future official acts as trustees for the East Side Levee and Sanitary District so that the defendants CHARLES MEYERS and JACK SCOVILLE would suspend their independent and unbiased judgment on the merits when considering the awarding of contracts, all in violation of Title 18, United States Code, Section 1951.
In the defendants' motions to dismiss the indictment, they contended that they held no public offices at the time of the acts complained of, that they were merely candidates for office at that time, and that not being public officials at the time complained of they had not violated Title 18, Section 1951 and could not be prosecuted thereunder. The Government contended that while defendants were not public officials at the time of the payment of $6000.00 to each of them, defendants thereafter were elected and did become public officials; that they kept said sums of money after becoming public officials; that they conspired to do so and that said conspiracy continued after they became public officials; and that they were therefore liable for violation of the provisions of 18 U.S.C. § 1951. For the purpose of defendants' Motions to Dismiss, counsel for the parties entered into a stipulation to the following facts:
1. The defendants, MEYERS and SCOVILLE, took office as Trustees of the East Side Levee and Sanitary District on December 6, 1972, at 10:00 A.M. Neither defendant was a public office holder prior to December, 1972. Defendants were candidates for said office as a result of a primary election in March, 1972 and the defendants were elected to said office on November 7, 1972.
2. A meeting between the defendants and the complaining witnesses occurred during the month of October, 1972 at which the indictment alleges a conspiracy was formed.
3. If money was paid to the defendants, it is alleged said payment occurred in October, 1972 before the defendants took office, and the defendants retained said money through May, 1973.
In the District Court's order granting the motion to dismiss, the District Court assumed that the stipulated facts precluded any conspiracy and dismissed the indictment, thereby depriving the Government of its right ...