United States District Court, Northern District of Illinois, E.D
May 16, 1984
UNITED STATES OF AMERICA, PLAINTIFF,
ALAN KAYE, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Alan Kaye ("Kaye") is charged in a nine-count indictment
1. the Racketeering Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. § 1962(c)
("Section 1962(c)") (Count One);
2. the mail fraud statute, 18 U.S.C. § 1341
("Section 1341") (Count Two);
3. the Hobbs Act, 18 U.S.C. § 1951 ("Section
1951") (Counts Three through Eight); and
4. the Crimes and Criminal Procedure Act of
1968, 18 U.S.C. § 894 ("Section 894") (Count Nine).
Kaye now moves to dismiss all nine counts as legally
insufficient. For the reasons stated in this memorandum
opinion and order, his motion is granted as to Counts One and
Nine, and fractionally as to Count Two, but denied as to all
During 1981*fn2 Kaye, a Cook County deputy sheriff, worked
one day a month as a part-time Holiday Court bailiff at the
Circuit Court of Cook County ("Circuit Court"). During that
year Kaye actually solicited and received, or attempted to
solicit, money for the asserted purpose of influencing judges
in divorce proceedings:
1. actual receipts from Leo Zutler ("Zutler")
on April 15, November 12 and November 19 relating
to Zutler's pending divorce proceeding;
2. actual receipts from Ronald Elder
("Elder")*fn3 on December 3 and 10 in connection
with Elder's pretended divorce proceedings; and
3. attempted solicitation from Elder in
September and October, when Elder's purported
divorce proceedings were soon to be filed.
Two other facts are relevant to one or more of the counts:
1. As part of Elder's phony divorce a summons
was mailed to an address in Richmond, Virginia,
to be served on Elder's "wife."
2. Even though Kaye represented otherwise to
Zutler and Elder, government prosecutors have
acknowledged they will not attempt to prove at
trial that Kaye in fact had any contact with,
made any payment to or attempted to influence,
Count One — RICO
Section 1962(c) reads:
It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or
the activities of which affect, interstate or
foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of
racketeering activity or collection of unlawful
Count One alleges Kaye:
1. is associated with an "enterprise" (the
Circuit Court) whose activities affected
interstate commerce and
2. participated in the conduct of the Circuit
Court's activities through a "pattern of
racketeering activity" (solicitation and receipt
Kaye raises a number of arguments against the legal
sufficiency of Count One:
1. Kaye's alleged bribery does not constitute
2. Kaye's activities did not have a sufficient
impact on interstate commerce.
3. Kaye was not "employed by" or "associated
with" the Circuit Court.
4. Kaye did not participate in the Circuit
Court's affairs through his acts of bribery.
Each argument will be considered in turn. As will be seen,
only Kaye's final contention is ultimately successful.
1. Racketeering Activity
For purposes of this case "racketeering activity" is defined
in 18 U.S.C. § 1961(1)(A) as:
any act or threat involving murder, kidnaping,
gambling, arson, robbery, bribery, extortion, or
dealing in narcotic or other dangerous drugs,
which is chargeable
under State law and punishable by imprisonment
for more than one year.
Count One charges Kaye with violating Ill.Rev.Stat. ch. 38,
¶¶ 33-1(d) and (e),*fn4
each of which is punishable by
imprisonment for more than one year. Ill.Rev.Stat. ch. 38, ¶
Kaye argues his alleged activity, because the money was not
passed on to any judge, is not the type of bribery encompassed
within the phrase "racketeering activity." That contention is
United States v. Forsythe, 560 F.2d 1127, 1137 n. 23 (3d Cir.
1977) (quoting United States v. Dansker, 537 F.2d 40, 48 (3d
Cir. 1976)) teaches Congress, in defining racketeering
activity, used "bribery" in its generic sense:
conduct which is intended, at least by the
alleged briber, as an assault on the integrity of
a public office or an official action.
That generic meaning focuses on the intent of the
briber to influence official action. See Black's Law Dictionary
173 (5th ed. 1979).
All five subsections of Section 33-1 share that common
gravamen of the crime of bribery. Subsections (a) through (c)
speak of the briber's intent, while subsections (d) and (e)
speak of the intent of the person taking the bribe. None of
the provisions requires that the official action intended by
the briber actually occur or that the public official at whom
the bribe is aimed actually receive it. Thus the Illinois
statute defines bribery consistently with its generic (and
hence its RICO) meaning, and such bribery can constitute
racketeering activity for RICO purposes.
2. Impact on Interstate Commerce
Kaye asserts his activities did not have sufficient impact
on interstate commerce to subject him to RICO's provisions.
But under Section 1962(c) it is the affairs of the
enterprise, not those of the person charged with violating the
section, that must affect interstate commerce. Bunker Ramo
Corp. v. United Business Forms, Inc., 713 F.2d 1272
, 1289 (7th
Cir. 1983); United States v. Nerone, 563 F.2d 836
, 852-53 (7th
Cir. 1977), cert. denied, 435 U.S. 951
, 98 S.Ct. 1577
L.Ed.2d 801 (1978). Moreover the effect on interstate commerce
need not be caused by the racketeering activity or by the
precise type of case involved here (divorce litigation). See
Nerone, 563 F.2d at 850-51.
At trial the government will have to prove the Circuit
Court's effect on interstate commerce. But for purposes of the
indictment, it is enough to track the statutory language.
United States v. Roman, 728 F.2d 846, 850 (7th Cir. 1984).
3. "Employed by" or "Associated with" the
Kaye was admittedly not employed by the Circuit Court.
Nonetheless the government
has urged he was "associated with" that Court in the following
1. Kaye bribed judges (this initially.
suggested theory is now abandoned by the
2. Kaye is a deputy sheriff whose duty was to
attend the Circuit Court.
3. Kaye claimed to be able to influence judges.
RICO's concept of "associated with any enterprise" is very
broad. See Schacht v. Brown, 711 F.2d 1343, 1360 (7th Cir.),
cert. denied, ___ U.S. ___, 104 S.Ct. 508-09, 78 L.Ed.2d 698
(1983); United States v. Lavin, 504 F. Supp. 1356, 1359
(N.D.Ill. 1981). In Kaye's job as a deputy sheriff, it was his
duty to "attend upon" the courts on the days he was assigned as
a Holiday Court bailiff and to obey court orders while the
Circuit Court was in session. Ill.Rev.Stat. ch. 125, ¶ 19 (and
see discussion under Count Two, "Intangible Rights"). All that
bespeaks a clear "association with" the Circuit Court.*fn5
4. Participation in the Conduct of the Enterprise's
Affairs through a Pattern of Racketeering Activity
Kaye argues he did not participate in the conduct of the
Circuit Court's affairs through his acts of bribery, absent any
showing Kaye actually attempted to influence or pay money to a
judge. This time Kaye strikes oil.
Courts differ on what must be shown to meet this element of
Section 1962(c). Compare Bennett v. Berg, 710 F.2d 1361, 1364
(8th Cir.) (en banc), cert. denied, ___ U.S. ___, 104 S.Ct.
527, 78 L.Ed.2d 710 (1983) (defendant's participation in the
operation or management of the enterprise) with United States
v. Cauble, 706 F.2d 1322, 1332-33 (5th Cir. 1983), cert.
denied, ___ U.S. ___, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984)
(defendant's use of his position to commit predicate acts, plus
the effects of those acts on the enterprise).
It is useful to translate RICO's statutory language into the
facts of this case, aided in part by the insertion of
dictionary definitions. In that light the government must
prove Kaye took part, directly or indirectly, in the direction
or management of the Circuit Court's affairs through his acts
of receiving bribes. In those terms Bennett's focus is more
faithful to the statutory language than is Cauble's. Cauble's
requirement that the predicate act merely have some direct or
indirect effect on the enterprise reads all meaning out of the
words "participate . . . in the conduct of the
enterprise's affairs through a pattern of racketeering
activity." Clearly any showing of Kaye's participation in the
direction or management of the Circuit Court (in Congress'
language, "in the conduct of [the Court's] affairs") requires a
showing he did cause bribes to be passed on to judges.
Invoking Cauble, the government argues Kaye's racketeering
activity affected the Circuit Court by changing the parties'
litigation strategy and creating distrust in the court system.
Even under Cauble's test the government's theory is defective:
It asserts a hypothetical indirect effect on the litigants, not
on the Circuit Court itself. Surely a leap of faith is required
to presume the essential next step: that such an indirect
effect on the litigants would affect the Circuit Court's
handling of the lawsuit. But criminal prosecutions demand faith
and good works, not faith alone.
Thus the government likely cannot satisfy either reading,
and certainly cannot satisfy the preferable Bennett reading, of
this element of a RICO case. Count One is dismissed.
Count Two — Mail Fraud
Section 1341 reads:
Whoever, having devised or intending to devise
any scheme or artifice to defraud, or for
obtaining money or property by means of false or
fraudulent pretenses, representations, or
promises, or to sell, dispose of, loan, exchange,
alter, give away, distribute, supply, or furnish
or procure for unlawful use any counterfeit or
spurious coin, obligation, security, or other
article, or anything represented to be or
intimated or held out to be such counterfeit or
spurious article, for the purpose of executing
such scheme or artifice or attempting so to do,
places in any post office or authorized
depository for mail matter, any matter or thing
whatever to be sent or delivered by the Postal
Service, or takes or receives therefrom, any such
matter or thing, or knowingly causes to be
delivered by mail according to the direction
thereon, or at the place at which it is directed
to be delivered by the person to whom it is
addressed, any such matter or thing, shall be
fined not more than $1,000 or imprisoned not more
than five years, or both.
Kaye directs three arguments against Count Two:
1. Mailing the divorce summons was not in
furtherance of the scheme to defraud.
2. By creating an out-of-state "wife" to whom
summons had to be mailed, the government
3. Neither as a private citizen nor as a public
official could Kaye defraud the public out of its
right to honest judges and an honest court
Each will be considered in turn.
1. Mailing in Furtherance of Scheme to Defraud
Under the statute the predicate mailing must be "for the
purpose of executing" the scheme to defraud, a concept the
cases have defined in terms of the mailings being "incidental
to or a normal concomitant of an essential element of that
scheme." United States v. Flick, 719 F.2d 246
, 252 (7th Cir.
1983). Here an essential element of Kaye's scheme to defraud
Elder was that there be a divorce proceeding to "fix." It was
due to Kaye's asserted ability to fix that divorce that the
bribe payments were made and the proceeding was filed. Mailing
the summons to the putative defendant in the divorce proceeding
was a normal part of such proceedings. At least it was
certainly reasonable to foresee such use of the mails would
occur in connection with the divorce (subject to the problem
discussed in the next subsection of this opinion). United
States v. Gorny, 732 F.2d 597
at 601 (7th Cir. 1984). Finally
Kaye's stated ability to fix the case "caused" that mailing.
Kaye's argument on this score fails.
2. Manufactured Jurisdiction
Kaye calls on United States v. Archer, 486 F.2d 670
1973) to contend the government manufactured jurisdiction by
creating a "wife" to whom the divorce summons would have to be
mailed. Archer held the federal agents' placing of interstate
telephone calls was not enough to create jurisdiction under the
Travel Act, 18 U.S.C. § 1952. In doing so, it eloquently
expressed a legitimate concern about the extent to which the
government can fairly structure a scenario to bootstrap
garden-variety state criminal activity into the ambit of
federal prosecutors and federal courts, 486 F.2d at 682:
Our holding is rather that when Congress
responded to the Attorney General's request to
lend the aid of federal law enforcement to local
officials in the prosecution of certain crimes,
primarily of local concern, where the
participants were engaging in interstate
activity, it did not mean to include cases where
the federal officers themselves supplied the
interstate element and acted to ensure that an
interstate element would be present. Manufactured
federal jurisdiction is even more offensive in
criminal than in civil proceedings, cf. 28 U.S.C. § 1359.
As the late Judge Freedman said with
respect to civil actions in
McSparran v. Weist, 402 F.2d 867, 873 (3d Cir.
1968) (en bane), cert. denied, 395 U.S. 903, 89
S.Ct. 1739, 23 L.Ed.2d 217 (1969), manufactured
jurisdiction "is a reflection on the federal
judicial system and brings it into disrepute."
That concern — really a variant on the due process notion of
government conduct that passes the line of "fundamental
fairness" and becomes "outrageous"*fn6
— has found its more
recent echo in the federal courts' wrestling with Abscam and
like examples of what proponents consider creative federal law
enforcement and opponents find impermissible. Archer's
potential application here is obvious. After all the mine-run
Illinois divorce involves spouses who, though they have parted
company, are both local residents. Thus the normal means for
haling the defendant spouse into court is to place the summons
in the hands of the sheriff or a private process server for
personal service. No mailing is involved, and if conduct like
that ascribed to Kaye is to end up in a criminal court it must
be in the state court and not here.
But the plot developed by the federal prosecutor and
enforcement personnel in this case involved not only a
fictitious plaintiff husband and a fictitious defendant wife,
but also a fictitious Virginia residence for the latter. That
separately manufactured fact created a need for a mailing that
would not otherwise exist,*fn7 and that mailing is what
brings Count Two into the present indictment.
Unfortunately for Kaye, however, the language quoted from
Archer was hedged somewhat on denial of rehearing, 486 F.2d at
685-86, and has since been "carefully limited" by the circuit
that authorized it. See, e.g., United States v. Lau,
714 F.2d 209, 210-11 (2d Cir. 1983); United States v. Giordano,
693 F.2d 245, 250-51 (2d Cir. 1982). Other courts too have been
disinclined to apply such equitable notions*fn8 with a broad
brush. See, e.g., United States v. Jannotti, 673 F.2d 578,
610-11 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102
S.Ct. 2906, 73 L.Ed.2d 1315 (1982).
Although our own Court of Appeals has not had occasion to
treat with the problem head-on, its affirmance of this Court
in United States v. Kaminski, 703 F.2d 1004, 1009-10 (7th Cir.
1983) appears to signal denial of Kaye's "manufactured
jurisdiction" argument. Even though the entire arson plan in
Kaminski was staged,*fn9 the Court of Appeals not only
rejected an entrapment defense but found nothing improper in
due process terms.
It may be the facts as developed at trial will pose a
stronger basis for an Archer — type approach. At this point,
however, Count Two must survive.
3. Intangible Rights
Kaye is accused of defrauding the public out of their right
to honest judges and an honest court system. As this Court has
previously held in United States v. Freedman,
586 F. Supp. 450, 452-56 (N.D.Ill. 1983), private citizens without
any connections to public officials cannot defraud the public
out of such intangible rights. Though Kaye would prefer
otherwise, Freedman does not cover the present situation
because Kaye is not a private citizen — he is a deputy
sheriff, a public official.
Under Illinois law the sheriff is a constitutionally
established county officer. Ill.Const. art. 7, § 4(c). Deputy
sheriffs take the same oath of office and have the same duties
as the sheriff. Ill.Rev.Stat. ch. 125, ¶¶ 3, 9, 12. Those
duties include attending the court and obeying its orders, id.
¶ 19, preventing crime, arresting criminals and keeping the
peace, id. ¶¶ 17, 82, and the myriad duties that existed at
common law, such as maintaining and protecting the dignity of
the courts. Dahnke v. People, 57 Ill. App. 619, 625 (1st
Dist. 1894), aff'd, 168 Ill. 102, 48 N.E. 137 (1897).
Here Kaye took the bribes in the course of his duty of
attending the courts and violated his duties of enforcing the
law and maintaining the dignity of the courts, thus depriving
the public of its right to an honest court system.*fn10 See
generally United States v. Keane, 522 F.2d 534, 549 (7th Cir.
1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d
746 (1976). However, it is clear Kaye's violation of his duties
could not have deprived the public of its right to honest
judges without any showing Kaye attempted to pass the money on
to the judges. Thus that part of the indictment must be
stricken, but the bulk of Count Two remains.
Counts Three through Eight — Hobbs Act
Section 1951 states:
(a) 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.
(b) As used in this section —
(1) The term "robbery" means the unlawful
taking or obtaining of personal property from
the person or in the presence of another,
against his will, by means of actual or
threatened force, or violence, or fear of
injury, immediate or future, to his person or
property, or property in his custody or
possession, or the person or property of a
relative or member of his family or of anyone
in his company at the time of the taking or
(2) The term "extortion" 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
(3) 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.
Kaye challenges Counts Three through Eight in two respects:
1. Those counts have not alleged the requisite
nexus to interstate commerce.
2. As to Counts Seven and Eight, Kaye cannot be
charged with acting "under color of official
Again each argument will be dealt with in turn.
1. Nexus to Interstate Commerce
In this circuit the required link to interstate commerce can
be established by
showing (1) a business that engages in interstate commerce and
(2) wrongful activity that depletes the business assets and
thus restricts other potential transactions in interstate
commerce. United States v. Boulahanis, 677 F.2d 586
, 590 (7th
Cir.), cert. denied, 459 U.S. 1016
, 103 S.Ct. 375
, 74 L.Ed.2d
509 (1982). That depletion-of-assets theory is not available
when the victim is an individual rather than a business. Id.;
United States v. Mattson, 671 F.2d 1020
, 1024-25 (7th Cir.
Although Zutler and Elder*fn11 assertedly paid the money to
Kaye in connection with Zutler's divorce proceedings, the
government says it intends to prove that for all practical
purposes Zutler the individual equals Zutler the business,
bringing the depletion-of-assets theory into play. Kaye
retorts that theory is not charged in the indictment and is
contrary to law.
There is no legal requirement that a particular theory be
set forth in the indictment, as long as the indictment charges
the essential elements of the crime (including enough facts to
protect a defendant's Fifth and Sixth Amendment rights).
Roman, 728 F.2d at 850. Tested by that standard, the indictment
sufficiently alleges the necessary nexus to interstate
Kaye's suggestion that a sole proprietor engaged in
interstate commerce cannot provide the requisite link for
non-business-related extortion is nonpersuasive, absent an
appropriate separation between personal and business funds.
United States v. Freedman, 562 F. Supp. 1378, 1382 (N.D.Ill.
1983). If Zutler in fact kept such funds separate, Kaye's
contention might have merit. But for present purposes the
government claims no such separation exists. That is enough to
withstand the current motion to dismiss.*fn12
2. Under Color of Official Right
Counts Three through Six charge extortion both by fear and
under color of official right, while Counts Seven and Eight
charge only the latter. As this Court held in
Freedman, 562 F. Supp. at 1384-88, private conduct by a private
citizen is not "under color of official right."*fn13
already stated in the discussion of Count Two and its
"intangible rights" component, Kaye is not a private citizen
but a public official.*fn14
Kaye's basic premise is that it is unreasonable as a matter
of law for a victim to believe that a Holiday Court bailiff,
by virtue of his position, could cause the result desired by
the extortion victim. But United States v. Rindone,
631 F.2d 491, 495 (7th Cir. 1980), quoting United States v. Mazzei,
521 F.2d 639, 643 (3d Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct.
446, 46 L.Ed.2d 385 (1975), makes it clear the applicable
standard is not the public officials' actual ability to perform
the act but rather the victim's perspective:
De jure ability to perform the promised act need
not be present; sufficient is "a reasonable belief
that the state system so operated that the power in
fact of the defendant's office included the
effective authority" to fulfill the promise.
Kaye reads "power in fact of the defendant's office" too
narrowly, as including only his actual ability to do his
job-related duties. But that is a misapprehension of the case
law. Kaye's job put him on the "inside" of the court system
and gave him at least apparent access to the judges.*fn15
Given the facts that must be assumed as true for the present,
it cannot be said as a matter of law that a victim could not
reasonably believe Kaye's position enabled him to make good on
his promise to pass the money on to judges.
Enough has been demonstrated at this point for Kaye to have
been acting "under color of official right." Counts Three
through Eight survive.
Count Nine — Extortionate Collection of
Extensions of Credit
Section 894 provides in part:
(a) Whoever knowingly participates in any way, or
conspires to do so, in the use of any
(1) to collect or attempt to collect any
extension of credit, or
(2) to punish any person for the
non-repayment thereof, shall be fined not more
than $10,000 or imprisoned not more than 20
years, or both.
It is preceded by a definitional section (18 U.S.C. § 891,
"Section 891") that defines "extortionate extension of credit"
(Section 891(6)) in terms of the understanding between the
"creditor" (defined in Section 891(2)) and "debtor" (defined in
Section 891(3)) at the time credit is extended (defined in
Count Nine alleges Kaye threatened violence to collect from
Zutler an extension of credit allegedly owed to a judge. Now
the government has acknowledged no judicial involvement
exists. In an effort to salvage Count Nine, it contends the
proof at trial will show Kaye was attempting to collect an
extension of credit owed to himself.
United States v. Kramer, 711 F.2d 789, 795 (7th Cir.), cert.
denied, ___ U.S. ___, 104 S.Ct. 397, 78 L.Ed.2d 339 (1983)
teaches when a variance between what is alleged in the
indictment and what is proved at trial is fatal:
A variance between allegation and proof is not
fatal to a criminal conviction, assuming the
proof is of an offense the grand jury intended to
charge, unless it affects substantial rights of
the accused, Rule 52(a) of the Federal Rules of
Criminal Procedure, either by depriving him of an
adequate opportunity to prepare a defense or by
exposing him to a risk of being prosecuted twice
for the same offense.
Usually variance questions do not arise at this stage of the
proceedings, but the government's brief has posed the issue
squarely. This Court finds the variance between the
allegations in Count Nine and the government's expressly
anticipated proof at trial is fatal to that Count.
Count Nine employs an exceedingly odd locution for a loan
— an "extension of credit" — by Kaye himself: an "extension
of credit" arising from a bribe allegedly owed to a judge. At a
minimum that is a bizarre way to describe Kaye as the
"creditor" with whom Section 891 requires the "debtor" (here
Zutler) to have had an "understanding" — at least if Kaye, as
the government now concedes, was acting for himself and not for
any judge. After all the essence of the government's charge is
that Zutler believed Kaye was a conduit to a judge, and that is
the very antithesis of a contrary "understanding" between Kaye
and Zutler, under which Kaye and not the judge was understood
by Zutler to be the "creditor."
This Court concludes Count Nine fails both branches of the
Kramer test.*fn16 Kaye
has not been sufficiently apprised of the true charge, at
least by the terms of the indictment itself, to permit him "an
adequate opportunity to prepare a defense." And as now drafted
Count Nine does not sufficiently identify the government's
real theory of prosecution so as to insulate Kaye from being
prosecuted twice for attempting to collect a "debt" owed to
himself. Count Nine is dismissed.
In his original motion (although not in his reply brief)
Kaye launched a general attack on Counts One, Two, Four, Seven
and Eight as violating the Ninth and Tenth Amendments. That
onslaught asserts the United States' "police power as derived
from the Commerce Clause" is exceeded here because of "an
instigating, perjuring federal agent" and the consequent
"`make believe' impacts on interstate commerce." Those
contentions are without merit. See United States v. Jarrett,
705 F.2d 198, 202-03 (7th Cir. 1983), cert. denied, ___ U.S.
___, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); Kaminski, 703 F.2d
at 1009-10; see generally Jannotti, 673 F.2d 578 (en banc).
Kaye's motion is granted as to the dismissal of Counts One
and Nine, and as to the striking of the indicated allegation
of Count Two. It is denied as to all other counts.
In an effort to make the worse cause appear the better on the
private-citizen "under color of official right" issue, the
government cites United States v. Phillips, 586 F. Supp. 1118
(N.D.Ill. 1984), in which this Court's colleague Judge Aspen
construed the Hobbs Act differently than this Court did in
Freedman, 562 F. Supp. at 1384-88. With all respect, Judge
Aspen's analysis is insupportable.
Because the issue need not be redecided here, given Kaye's
public-official status, this opinion will not deal with
Phillips at any length. Three points however may be quickly
1. It is both simplistic and wrong to read
"under color" by resort to law-dictionary
definitions. That phrase is one with a time
honored history and an established meaning under
a host of Supreme Court decisions (in the
familiar "under color of law" usage of the Civil
Rights Act). United States v. Classic,
313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)
(emphasis added) put it in simple and truly classic
Misuse of power, possessed by virtue of state
law and made possible only because the wrongdoer
is clothed with the authority of state law, is
action taken "under color of" state law.
From Classic through the southern sheriff's brutal
and fatal beating of a black arrestee in Screws v.
United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed.
1495 (1945) until today, the universally recognized
meaning of "under color" has not been one of
false pretense of nonexistent power, but rather the
wrongful use of rightful and real power.
2. Judge Aspen's reference to 18 U.S.C. § 171
(Phillips, at 1121) actually cuts the other way
from his conclusion. Under both common sense and
familiar rules of English, that statute had a
Every officer, clerk, agent or employee of the
United States . . . who, under color of his
office, clerkship, agency or employment. . . .
[E]very person representing himself to be or
assuming to act as such officer, clerk, agent
or employee, who, . . . under color of his
pretended or assumed office, clerkship, agency,
or employment. . . .
Though this Court shares much of Judge Posner's
concern as to the unreasoned use of the canons
of statutory construction (see generally
Posner, Statutory Interpretation — in the
Classroom and in the Courtroom, 50 U.Chi.L.Rev.
800 (1983)), another former professor at the same
law school, the late William Winslow Crosskey,
regularly and sensibly invoked the principle
reddendo singula singulis in dealing with the use
of language like that employed in Section 171. It
is thus a distortion to read "pretended or
assumed" as an ingredient of "under color" —
just the opposite is true. Section 171, like the
Civil Rights Act (and like the Hobbs Act),
plainly treated "under color" as an attribute of
officialdom and not of its simulation.
3. For the reasons stated in Freedman, 562
F. Supp. at 1385-86, Judge Aspen's citation to
United States v. Emalfarb, 484 F.2d 787 (7th Cir.),
cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38
L.Ed.2d 469 (1973) as purportedly supporting his
reading of the Hobbs Act is incorrect, for it
ignores the fact the essence of the offense in
Emalfarb was the "under fear" rather than the
"official" type of extortion.
SUPPLEMENT TO MEMORANDUM OPINION AND ORDER
On May 16, 1984 this Court issued its memorandum opinion and
order (the "Order") dealing with the motion by Alan Kaye
("Kaye") to dismiss each of the nine counts in the indictment
as legally insufficient. Now the government has moved for
reconsideration of the portion of the Order granting dismissal
as to Count Nine. For the reasons briefly stated in this
supplement, that motion is denied.
As Order at 19-22 reflects, it appeared from the parties'
submissions that Count Nine suffered from a fatal variance
between what is alleged in the indictment and what was
expected to be proved at trial.*fn1 In its motion for
reconsideration the government asserts (both by way of the
motion and by appendices to the motion filed under seal,
reflecting transcripts of recorded conversations between Kaye
and Leo Zutler) that no variance will in fact exist. According
to the government Count Nine "was drafted and presented to the
grand jury on the assumption that Kaye was the actual creditor
and was lying about the involvement of other people."
Accordingly the government asserts it will in fact prove
precisely what was tendered to the grand jury as the predicate
for return of indictment Count Nine. In that respect its
current Mem. 3 states:
The government concedes that this is an unusual
case brought under 18 U.S.C. § 894 because the
defendant is lying about who is the actual
But what the government fails to recognize is that its
present position impales it on the other horn of a dilemma:
For the same reason described in Opinion at 21 (in the
paragraph beginning "Count Nine employs an exceedingly odd
locution. . . ."), the facts the government proposes to prove
simply do not charge an offense as defined in 18 U.S.C. § 894
("Section 894"). That section is not self-contained. As with
the familiar patent law doctrine that a patentee may be his own
lexicographer, Congress has chosen to set out its lexicography
for Section 894 in 18 U.S.C. § 891 ("Section 891"). And given
that lexicography, the proof the government concedes it will be
forced to make actually negates any "understanding" between the
"creditor" and the "debtor," so that by definition there can be
no "extortionate extension of credit" (Section 891(6)) and
hence no crime chargeable under Section 894.
Accordingly the government's motion to reconsider the
dismissal of Count Nine is denied. This supplement tracks
precisely the analysis of the Order, and it provides
the requisite basis to reject Count Nine in light of the
government's identification of how that count was presented to
the grand jury.