The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Michael Freedman ("Freedman") and Randall Scott Moore ("Moore")
are charged with (1) conspiracy to commit extortion, extortion
and attempted extortion, in violation of 18 U.S.C. § 1951 (the
"Hobbs Act" or "Section 1951") and (2) mail fraud, in violation
of 18 U.S.C. § 1341 ("Section
1341").*fn1 Freedman and Moore*fn2 have moved to dismiss the
Hobbs Act charges (Counts I to IV) on grounds of legal
insufficiency. For the reasons stated in this memorandum opinion
and order that motion*fn3 is granted.
Background Facts and Counts I to IV*fn4
At the time material to the Indictment Freedman and Moore were
attorneys licensed to practice in the State of Illinois. Sean
O'Toolis ("O'Toolis") was a defendant in pending Illinois
criminal prosecutions.*fn5 O'Toolis was also involved in making
electronic television-signal receiving devices, an enterprise in
which he used supplies that had originated outside Illinois and
moved in interstate and foreign commerce.
O'Toolis retained Freedman and Moore to represent him in the
Illinois criminal actions. Freedman and Moore conspired to obtain
about $3,000 from O'Toolis by telling him they would use part of
the money to bribe the state judge presiding at his trial and
thereby prevent O'Toolis' conviction. Freedman and Moore obtained
three payments ($1,500, $300 and $500) from O'Toolis on different
dates, each time representing to him the money would be used or
was needed to bribe the judge. Unknown to Freedman and Moore,
O'Toolis had decided to cooperate with state authorities, and the
money paid Freedman and Moore was actually provided by the office
of the Cook County State's Attorney. No approach to the state
court judge was actually made, and the judge was not involved in
Count I charges Freedman and Moore "did conspire to commit
extortion . . . which extortion would affect commerce" in that
they conspired to obtain $3,000 from O'Toolis "with his consent,
said consent having been induced under color of official right."
Counts II to IV differ from each other only by charging the three
different payments. Each Count states Freedman and Moore "did
commit and attempt to commit extortion . . . which extortion
would affect commerce" in that they obtained the indicated amount
from O'Toolis "with his consent, said consent having been induced
under color of official right."
At various points in the parties' briefing of the motion to
dismiss Counts I to IV, they have posed the following issues:
1. whether the facts the United States intends to
prove would show the nexus to interstate commerce
required for Hobbs Act jurisdiction;
2. whether those facts would support the charge in
Counts II to IV that Freedman and Moore committed as
well as attempted to commit extortion;*fn6
3. whether Freedman and Moore can be charged with
having acted "under color of official right"; and
4. whether the conspiracy charge of Count I can
stand independently of the substantive offense
charges of Counts II to IV.
Those issues*fn7 will be discussed in turn, although the third
Effect on Interstate Commerce
Section 1951(a) provides:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section shall be fined not more
than $10,000 or imprisoned not more than twenty
years, or both.
Section 1951(b)(3) then defines "commerce" broadly to include
all interstate (and foreign) commerce:
The term "commerce" means commerce within the
District of Columbia, or any Territory or Possession
of the United States; all commerce between any point
in a State, Territory, Possession, or the District of
Columbia and any point outside thereof; all commerce
between points within the same State through any
place outside such State; and all other commerce over
which the United States has jurisdiction.
By its very terms the Hobbs Act thus protects commerce, and it
penalizes only inchoate or completed robbery, extortion or
violence that obstructs or affects commerce. Although Congress
cast the Hobbs Act net widely, United States v. Culbert,
435 U.S. 371, 373, 98 S.Ct. 1112, 1113, 55 L.Ed.2d 349 (1978), a
connection to interstate or foreign commerce is a prerequisite
to federal criminal jurisdiction under the Act, United States
v. Mattson, 671 F.2d 1020, 1023 (7th Cir. 1982).
Freedman and Moore argue (Dec. 21, 1982 Motion 4-5; Feb. 7
Mem. 2-7) the facts alleged do not show a nexus between their
impugned actions and interstate commerce for two independent
1. There was no connection between O'Toolis'
payments and his interstate business.
2. In any event, the money obtained from O'Toolis
was provided by the State's Attorney and did not come
out of O'Toolis' own funds.
Neither contention has merit.
Our Court of Appeals teaches the requisite effect on interstate
commerce under the Hobbs Act may be established by the "depletion
of assets" theory. Under that concept "commerce is affected when
`an enterprise, which either is actively engaged in interstate
commerce or customarily purchases items in interstate commerce,
has its assets depleted through extortion, thereby curtailing the
victim's potential as a purchaser of such goods.'" United States
v. Hedman, 630 F.2d 1184, 1192 (7th Cir. 1980) (quoting United
States v. Elders, 569 F.2d 1020, 1025 (7th Cir. 1978)), cert.
denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981).
Here the Indictment alleges extortion of payments from O'Toolis
while he was engaged in an enterprise requiring his use of
electronic supplies obtained from sources outside Illinois. True,
O'Toolis' enterprise may have been illegal, as Freedman and Moore
suggest (Motion To Sever 2).*fn8 But O'Toolis' business clearly
involved him in the interstate market for electronic equipment.
Cf. United States v. Rindone, 631 F.2d 491, 493 (7th Cir. 1980)
(extortion victim "was engaged in interstate commerce. His
business regularly purchased wire and other electrical equipment
from sources outside the State of Illinois."). Whatever else may
be said of O'Toolis' business, that involvement establishes the
requisite link between his ...