However, until recently no case had been prosecuted involving extortionate activities by unions, in the course of a dispute with an employer, designed to obtain property which could legitimately have been sought through the collective bargaining mechanism (e.g., higher wages for desired work). United States v. Enmons 41

was such a case. It involved acts of violence (including shooting weapons at transformers and blowing up a transformer station) committed by union officers in the course of a labor dispute with the company as to the terms of a new contract for genuine and desired services. The Supreme Court, dividing 5 to 4, held that the Hobbs Act did not reach such activity, on the ground that, since the objectives of the labor activity were lawful (albeit the means to accomplish them were not), the extortion did not constitute "wrongful" use of actual or threatened force, violence or fear.

This holding, which was based on the majority's reading of the legislative history concerning the extent of the Act's intended application to unions (a reading strongly disputed by the minority) is apparently to be read as confined solely to the employer-employee context. It is at odds with the otherwise uniform construction of the statute as proscribing extortionate means, whether or not the end sought to be attained is legitimate (e.g., a public official's demand for money to take lawful official action or to refrain from taking official action where he has discretion whether to do so).42

Apparently in part what motivated the Court in Enmons was the desire to avoid Federal Hobbs Act coverage over unlawful picket-line violence-usually the product of short tempers-in which minor but intentional damage is done to the property of the employer.43 However, in the Committee's view such acts do not fall within the purview of the Hobbs Act (nor should they be Federally punishable) since there is no intent thereby to obtain the employer's property through the use of force and the acts do not in fact cause the employer to part with his property; in short, such isolated acts of violence do not par

take of the nature of extortion.

As a result of the Supreme Court's holding in Enmons, the opportunity is created for unions or employers to cloak extortionate demands in the guise of an objective which could be legitimately sought through collective bargaining. For instance, rather than violate the Act (under Green) by seeking wages for superfluous services, unions may (under Enmons) demand and obtain with impunity inordinately high wages for the performance of existing and desired services through fear instilled by violence. Such a situation is, of course, highly undesirable. The thrust of an extortion statute should be to punish violent extortionate means to obtain the property of another regardless of the legality of the ends sought, and this principle should apply in the collective bargaining context as well as elsewhere. Thus, an employer who blows up a union office or causes a union official to be assaulted in order to instill fear and thereby obtain property of the union ought to be guilty under the Act irrespective of whether the property could have been obtained lawfully through collective bargaining. And the same should be true in the reverse situation. Ac

41 Supra note 35.

See also, e.g., Battaglia v. United States, 383 F. 2d 303 (9th Cir. 1967), cert. denied, 390 U.S. 907 (1968) (demand to use victim's establishment as a location for defendant's pool table); United States v. Tropiano, supra note 29 (wrongful use of threats to obtain right to solicit business). Compare United States v. Pignatelli, 125 F.2d 643 (2d Cir. 1942), disallowing a "claim of right" defense for extortion threats transmitted through the mails. See United States v. Caldes, 457 F.2d 74 (9th Cir. 1972).

cordingly, the Committee has proposed in effect to overturn the Enmons result by treating the parties engaged in a labor dispute no differently from other persons in terms of the applicable prohibitions under this section, which is limited to extortionate means involving actual or threatened violence.

B. Other Federal Extortion Statutes

In addition to the Hobbs Act, Federal law contains a number of other extortion provisions which would be replaced in whole or in part by proposed section 1722.

44

18 U.S.C. 872 punishes by up to three years in prison extortion by any officer or employee of the United States, or person representing himself to be such, acting under color of office. The concept of extortion in this statute has been held to involve the obtaining of anything by illegal compulsion and to imply unwilling payment.15 The statute has been strictly construed with respect to the classes of persons covered, and has been held, for example, not to include a special master appointed in a single case.46

A similar but more specific statute, 26 U.S.C. 7214 (a), punishes by up to five years in prison any officer or employee of the United States acting in connection with any revenue law of the United States "who is guilty of any extortion or willful oppression under color of law." 18 U.S.C. 874 punishes by up to five years in prison the use of force, intimidation, threats of procuring dismissal from employment, or any other manner of inducement to obtain kickbacks from employees engaged in public works financed in whole or in part by loans or grants from the United States. This statute was designed to insure that workers on Federal projects receive the full wages to which they are entitled from their employers. It is clearly broader than ordinary extortion in reaching "any other manner" or inducement to obtain part of the employee's compensation. The statute has been held to reach a foreman with authority to hire and discharge, and even one with the power only to recommend discharge.47 It also reaches union officials 48 but was held by the Supreme Court not to reach the legitimate conduct of union officials threatening to procure the discharge of any workers failing to make required weekly payments to the union until their union initiation fees were paid in accordance with the union's closed shop agreement with the employer.49

A similar statute of more recent vintage is 42 U.S.C. 7203 (b), which is designed to protect beneficiaries of the Economic Opportunity Act of 1964 from extortion in relation to grants or contracts of assistance thereunder. That section makes it a misdemeanor punishable by up to one year in prison for whoever "by threat of procuring dismissal of any person from employment or of refusal to employ or . . . renew a contract or employment in connection with a grant or contract of assistance under this chapter, induces any person to give up any money or thing of any value to any person."

44 The penalty declines to a maximum of one year if the value of the property extorted is less than $100.

45 See Daniels v. United States, 17 F.2d 339 (9th Cir.), cert. denied, 274 U.S. 744 (1927); cf. United States v. Miller, 340 F.2d 421 (4th Cir. 1965).

46 See United States ex rel. Lotsch v. Kelly, 86 F.2d 613 (2d Cir. 1936).

47 See United States v. Laudani, 320 U.S. 543 (1944); United States v. Price, 224 F.2d 604 (6th Cir.), cert denied, 350 U.S. 876 (1955).

48 See United States v. Alsup. 219 F.2d (5th Cir.), cert. denied, 348 U.S. 982 (1955). 40 United States v. Carbone, 327 U.S. 633 (1946).

18 U.S.C. 875 (a) punishes by up to twenty years in prison whoever transmits in interstate or foreign commerce any communication containing a demand or request for a ransom or reward for the release of any kidnapped person.

18 U.S.C. 875 (b) penalizes to the same extent whoever, with intent to extort any money or thing of value from any person, transmits in interstate or foreign commerce any communication containing a threat to kidnap or injure any person.

18 U.S.C. 876 and 877 make it a crime to use the domestic or foreign mails to commit the offenses prohibited by 18 U.S.C. 875 (a) and (b). The penalty prescribed is identical to that under those provisions.

These offenses commingle the concepts of sending a threat (punished in the proposed Code in sections 1615 and 1616) with obtaining property by extortion, punishable under this section. However, because the offenses do not require that property be actually obtained, they may be said to define conduct constituting an attempted extortion. As such they are primarily carried forward by section 1001 (Criminal Attempt) of the reported bill, in conjunction with this section.

18 U.S.C. 894, enacted in 1970 as part of chapter 42 of title 18 punishing extortionate credit transactions, provides that whoever knowingly participates in any way, or conspires to do so, in the use of extortionate means to collect or attempt to collect any extension of credit, or to punish any person for the nonrepayment thereof, is subject to imprisonment for up to twenty years. The term "extortionate means" is defined in 18 U.S.C. 891 as any means which "involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of another." Section 894 also contains an evidentiary provision permitting the court, in certain circumstances, to receive evidence "tending to show the reputation of the defendant in any community of which the person against whom the alleged threat was made was a member at the time. of the collection or attempted collection," "for the purpose of showing that words or other means of communication, shown to have been employed as a means of collection, in fact carried an express or implicit threat."

This statute was sustained by the Supreme Court as within the powers of Congress under the Commerce Clause, notwithstanding the statute's elimination of the need for proof in an individual case that interstate commerce was affected by the transaction, on the ground that Congress could rationally conclude-as it did in special findings accompanying the legislation that extortionate credit transactions generate a substantial part of the income of organized crime, the activities of which in turn have an adverse effect on commerce.5 50 Notwithstanding its focus on organized crime, the statute is not limited to extortionate collections of credit by an organized criminal element and proof of a connection of the offender with organized crime is not required.

51

Section 1722 carries forward only that part of 18 U.S.C. 894 which proscribes the use of extortionate means to collect an extension of credit: 52 the use of extortionate means to punish a person for the non

50 See Perez v. United States, 402 U.S. 146 (1971); section 201 of P.L. No. 90-321, 82 Stat. 159 (1968).

61 See United States v. Perez, 426 F.2d 1073, 1080-1081 (2d Cir. 1970), aff'd, 402 U.S. 146 (1971).

52 Section 1723, rather than this section, would apply where the threat was to injure someone in his reputation.

repayment of an extension of credit is dealt with in proposed section 1804 (Loansharking).

18 U.S.C. 1952, the Travel Act, is a type of limited Assimilative Crimes Act, punishing interstate travel or the use of interstate facilities to engage in various unlawful activities defined by State Law. Specifically, 18 U.S.C. 1952 punishes by up to five years in prison whoever travels in interstate or foreign commerce or uses any facility thereof (including the mail), with intent to (1) distribute the proceeds of any unlawful activity, (2) commit any crime of violence to further any unlawful activity, or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, etc., of any unlawful activity, and who thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), or (3). The term "unlawful activity" is defined to include, among other things, “extortion. . . in violation of the laws of the State in which committed or of the United States." The courts have interpreted the reference to State law as generic and for definitional purposes only, so that State offenses proscribing extortionate conduct are covered whether denominated as extortion, or otherwise, such as "blackmail" or "theft.” 53 In addition, it matters not that at the time of the Federal prosecution, the conduct is no longer prosecutable in the State because of the running of the State statute of limitations.54

The major problem with this statute is that State laws dealing with extortion vary enormously, making for a singular lack of uniformity in Federal enforcement in terms of the conduct proscribed. Not deeming this an appropriate area in which the Federal role should be relegated to one of reliance on State laws, the Committee, in this section and section 1723, has rejected the Travel Act's approach, opting instead for provisions containing a uniform Federal definition of extortion and blackmail.

3. The Offense

A. Elements

Subsection (a) of section 1722 provides that a person is guilty of an offense if he obtains property of another by threatening or placing another person in fear that any person will be subjected to bodily injury or kidnapping or that any property will be damaged.

Unlike the prior section proscribing robbery, this section contains no requirement that the property be taken from the person or presence of another or that the fear involve "imminent" subjection of another to bodily injury. In addition, threats or fear directed at damage to property are included here, consistent with existing Federal extortion statutes, whereas the robbery section is limited to threats or fear of bodily harm. That portion of the definition of extortion in the Hobbs Act, providing that the property be obtained from the victim "with his consent," has been deleted as meaningless. Since it is clear that the property is surrendered against the will of the victim, it seems pointless to still refer to such act as a "consent" induced by, inter alia, actual or threatened force, violence, or fear.

53 See United States v. Nardello, 393 U.S. 286 (1969); United States v. Karigiannis, 430 F.2d 148 (7th Cir.), cert. denied, 400 U.S. 904 (1970).

54 See United States v. Cerone, 452 F.2d 274 (7th Cir. 1971), cert. denied, 405 U.S. 964 (1972).

The term "property of another" is defined in section 111 to mean property in which a person or government has an interest upon which the actor is not privileged to infringe without consent, whether or not the actor also has an interest in the property. This definition has ramifications with respect to the so-called "claim of right" defense in which the actor alleges that he was merely seeking to repossess his own property.55 The term "property" is also given an expansive definition in section 111, in accordance with the broad construction placed upon the same concept under the Hobbs Act.56

57

With respect to the element of placing in fear, the Committee intends that existing law be continued, permitting evidence of the victim's state of mind as proof of his fear and the reasonableness thereof. Moreover, as to the threat aspect of the offense, subsection (b) of section 1724 expressly authorizes the introduction in a prosecution under this section (as well as under certain parts of section 1723(a)) of evidence concerning the reputation of the defendant in any community of which the victim was a member at the time of the offense charged, "for the purpose of showing that words or other method of communication employed as a means of obtaining the property in fact carried a threat." This provision, which is derived almost verbatim from 18 U.S.C. 894, also carries forward current practice under the Hobbs Act.58

Subsection (b) of section 1722 is particularly significant, since section 1722, like the Hobbs Act and 18 U.S.C. 894 can be predicted to have extensive application to organized crime and other similar extortion situations where, not infrequently, fear is induced although few if any words are spoken. For example, if a known "hit" man is used to secure money or property, express threats may be entirely unnecessary, the reputation of the "hit" man (with the implicit threat carried by his presence) being sufficient to achieve the desired effect.59

The language in the Hobbs Act defining extortion as including the obtaining of property by the "use of... force [or] violence," has been eliminated as redundant. The Committee considers that the phrase "placing another person in fear" includes the use of actual as well as threatened force or violence. Similarly, because the definition of the offense in this section (unlike the Hobbs Act) makes it clear that extortion can occur only if the threat or placing of another in fear relates to any person being subjected to bodily injury or kidnapping or the damaging of any property, the Committee considers that it is unnecessary to include an express exemption for such lawful, concerted labor activities as striking or picketing. Such activities are implicitly excepted from this section since they do not involve a threat or placing of another person in fear that another individual will be subjected to bodily injury or kidnapping or that property will be damaged.

The Committee has chosen not to continue the present Hobbs Act offense of extortion by public servants under color of official right,

55 See the discussion of this defense, infra, in connection with culpability. 56 See United States v. Tropiano, supra note 29, at 1075-1076.

See, e.g., United States v. Stirone, 311 F.2d 277, 280 (3d Cir. 1962), cert. denied, 372 U.S. 935 (1963): Nick v. United States. 122 F.2d 660, 671 (8th Cir. 1940), cert. denied, 314 U.S. 687 (1941): Carbo v. United States, supra note 28, at 727; United States v. Kennedy, 291 F. 2d 457 (2d Cir. 1961).

58 See. e.g., United States v. Tropiano, supra note 29. at 1081, and cases cited therein; United States v. Curcio, 310 F. Supp. 351 (D. Conn. 1970). As under section 1721, the Committee intends that the threat branch of this statute not require proof that the victim was actually placed in fear.

50 Contrast the National Commission's proposal, which the Committee rejects. to define threat as "expressed purpose, however communicated." See Final Report, § 1741 (k).