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UNITED STATES v. FREEDMAN

May 12, 1983

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL FREEDMAN AND RANDALL SCOTT MOORE, DEFENDANTS.



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 the conspiracy.

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 is dispositive.

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 reasons:

    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 ...


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