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UNITED STATES v. PHILLIPS.

March 15, 1984

UNITED STATES OF AMERICA
v.
JOHN G. PHILLIPS.



The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Attorney John G. Phillips ("Phillips") was indicted by a federal grand jury on December 14, 1983, in a single count alleging attempted extortion under the Hobbs Act, 18 U.S.C. § 1951. Presently before the Court is Phillips' motion to dismiss the indictment or, in the alternative, to strike surplusage from the indictment. For the reasons set forth below, the motion is denied in its entirety.

I.

The charge against Phillips arises from a conversation on July 14, 1982, between Phillips and another attorney, Charles Pressman ("Pressman"), relating to state court litigation entitled Harris Trust & Savings Bank v. Siegel, No. 76 CH 1405, and Siegel v. Harris Trust & Savings Bank, No. 76 L 4927 ("the Siegel case"). In 1976, Phillips had been appointed by the state court to act as guardian ad litem, and later as trustee, in the Siegel case. According to Pressman, Phillips stated during the July 14, 1982 conversation that a decision favorable to Pressman's client in the Siegel case could be obtained for $10,000. Pressman and his law partners reported this conversation to state government authorities, and a federal grand jury investigated and indicted Phillips for attempted extortion.

Phillips first argues that his indictment must be dismissed for lack of federal jurisdiction. Extortion under the Hobbs Act "means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right," 18 U.S.C. § 1951(b)(2). However, the Hobbs Act does not reach every act of extortion or attempted extortion; federal jurisdiction is present only when the extortion "affects interstate commerce." 18 U.S.C. § 1951(a).

Phillips contends that the government cannot demonstrate a realistic probability that Phillips' alleged extortionate demand would have affected interstate commerce. Phillips bases his contention on some deposition testimony taken from Pressman on October 18, 1983. Phillips claims this testimony proves that he offered to pay the alleged extortionate sum himself, thus negating any likelihood that the assets of Pressman's law firm would be depleted or that interstate commerce would be otherwise affected.

Assuming arguendo that Pressman's deposition testimony could properly serve as a basis for dismissing the government's case without a trial, Phillips' contention is unpersuasive. Phillips relies on a very small part of Pressman's testimony to support his argument. Many of Pressman's other responses to inquiries by Phillips' counsel about the July 14, 1982 conversation contradict Phillips' version of the events and support the government's allegation that Phillips was seeking money from Pressman and his partners. Thus, unlike the defendant in United States v. Ponto, 454 F.2d 657 (7th Cir. 1971) (en banc), Phillips has failed to establish beyond dispute a defense which requires dismissal of his indictment.*fn1

II.

Phillips also argues that the government will be unable to sustain a "wrongful use of fear" prosecution at trial. Phillips contends that the economic loss feared by Pressman and his law firm was an unfavorable verdict in the Siegel case, and that he did not in any way threaten to cause such a loss to occur. This argument also fails. Although the state court judge, rather than Phillips, would directly cause the apprehended loss in this case, Phillips is not necessarily relieved of liability under the Hobbs Act. In a number of cases, a declared middleman between the victim and an public official has been prosecuted for wrongful use of fear of economic harm. See, e.g., United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981); United States v. Rosa, 560 F.2d 149, 154 n. 5 (3d Cir. 1977) (en banc), cert. denied sub nom. Sica v. United States, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977); United States v. Irali, 503 F.2d 1295, 1299-1301 (7th Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975). In light of the suggestion that Phillips might influence the ultimate decision maker — the judge — Phillips' argument that he did not threaten to cause any loss is unavailing.

III.

The government in its indictment alleges that Phillips attempted to extort money from Charles Pressman both by the wrongful use of fear of economic harm and under color of official right. Phillips asserts that the "under color of official right" charge is defective on its face because he is not a public official. In essence, Phillips contends that there are two mutually exclusive branches of the Hobbs Act: extortion through the wrongful use of force, violence or fear, which may be committed only by private individuals, and extortion under color of official right, which is reserved for public officials who exploit the trust which the public has reposed in them. The government argues that this bifurcation is unwarranted and that all four of the proscribed means of extortion apply to public and private actors alike. Based on the statutory language, the legislative history and the case law relating to extortion under the Hobbs Act, we find the government's position persuasive.

Nor does the phrase "under color of official right" apply only to legitimate office holders. To the contrary, "color" implies "an appearance, semblance, or simulacrum, as distinguished from that which is real . . . a disguise or pretext." Black's Law Dictionary 240 (5th ed. 1979). Similarly, one definition of "color of office" is "pretense of official right to do an act made by one who has no such right." Id. at 241. Thus, the phrase "under color of official right" appears to apply not only to actual public officials but also to any person purporting to wield effective governmental power.

Such an interpretation of these words is supported further by a similar statute which existed when the Hobbs Act was passed in 1946. The statute, 18 U.S.C. ยง 171, prohibited extortion under color of office by federal employees or others who acted on the basis of "pretended or assumed" federal authority. The law, ...


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