Earl Warren: Mr. Davis.
Oscar H. Davis: May it please the Court. This case is here on direct appeal to this Court from the District Court in the Southern District of Illinois under the Criminal Appeal Act. Under that section of the Criminal Appeals Act which provides for a direct review here of a decision of a District Court arresting and judgment of conviction for insufficiency of indictment, where the decision of the District Court rest upon the construction for the validity of the statute upon which the indictment is found. The statute, upon which the indictment in this case has found it, is the Hobbs Act which was passed by Congress in July 1946. And in general it prohibits and punishes extortion and robbery affecting interstate commerce, accomplished by force and violence and wrongfully induced fear. The facts of the case on the record which is before this Court are not complicated. An indictment was brought forth by the grand jury in nine counts against two appellees, Jack Green and Local 397 of labor's union. We are concerned here with only the first two of those accounts because the District Attorney elected to go forward only on four counts and the jury acquitted on two counts. Now, the counts upon which we are -- with which we're concerned her are accounts one and two appearing at the very beginning of the record, pages one and two. And what they charge is, that these two defendants violated the Hobbs Act by attempting to extort and by force and violence attempted an actual force and violence and fear. Attempted to extort from Government contractors engaged in work affecting interstate commerce, property of these Government contractors in the form of wages for imposed, fictitious, superfluous and unnecessary labor -- labor of person's called “swampers”, common laborers called “swampers” who were -- according to the indictment to be employed in connection with equipment being operated by the contractors on these Government projects. Swampers, I understand, are supernumeraries, common laborers who are sometimes employed in connection with heavy equipment, most generally for going ahead of the equipment to tell the operator of the equipment whether there are holes which he ought to avoid, and also, to take out branches, twigs and other obstacles which are on his way. Now the -- as I have said, there was an actual trial on this case that lasted for about 10 days. The District Attorney elected to go forward only on four charges, counts of the indictment, the jury convicted only on the first two. After the conviction, the defendants made a motion for an arrest of judgment. They also made a motion for a new trial and a motion for a judgment of acquittal. Now, the motion for a judgment of acquittal was denied by the District Judge and the motion for a new trial was denied by the District Judge. And the motion for arrest of judgment was granted on two grounds only and the first ground was that the Hobbs Act did not cover the -- a crime which was charged in the indictment. And the second ground was that if it did, if the Hobbs Act did cover that -- that type of crime, then the statute was -- would probably be unconstitutional. And I stressed, that the District Judge denied the motion in respect to other grounds which the appellees had raised below and he also denied a motion for judgment of acquittal and for new trial. And so, the cases here under the criminal --
Speaker: Do you consider there's any ambiguity in the record at all, as to whether he went on the indictment only or whether it was a sort of a combination of indictment evidence?
Oscar H. Davis: No, Mr Justice Harlan, we don't think there is any ambiguity and we think that issue was -- hasn't resolved already in this Court. Because at the very beginning when the Government filed this notice to appeal and jurisdictional statement, a motion to dismiss was made which the Court denied implicitly by noting probable jurisdiction, and the Court did not ask for discussion of its jurisdiction further. And so, of course --
Felix Frankfurter: Probable means the question is may be over.
Oscar H. Davis: Yes. But the Court did not ask for further discussion. We have not --
Felix Frankfurter: You don't want to take your time on that point, is that it? You don't want to take -- use any part of your time to discuss that?
Oscar H. Davis: Unless the Court desires it. I -- I think --
Hugo L. Black: But personally, I am interested in it.
Oscar H. Davis: I'd be glad to discuss it, Mr. Justice Black.
Hugo L. Black: I'd -- if you're not ready to these questions, of course we consider it but I -- I am interested in that point. I'm not good with all of that.
Oscar H. Davis: The -- the District Judge said that he wanted -- that he came to the conclusion. He -- on page 15 of the opinion of the District Judge, Mr. Justice Black, the third full paragraph, the District Judge says, "When the motion to dismiss the indictment was made in the beginning, the defendant's didn't argue very strongly that the statute didn't cover this particular crime or the allegations of the indictment." So, he didn't consider it very fully. So, now after the trial they renew that contention and he has looked at the indictment and he has looked at the statute and the legislative history, and he has come to the conclusion that Congress did not intend to make what the indictment charges a crime. Now, those -- that we think is pretty clear indication that what he was doing was looking only at the allegations of the indictment. For your information, Mr. Justice Black, the Government has in its statement as to jurisdiction and particularly in its brief in opposition to the motion to dismiss discussed that -- that issue much more fully. And also, in a memorandum which is filed in opposition to the cross designation by the appellees, the appellees designated the entire trial record and the Government moved to strike that designation. In that connection, we filed this mimeographed document which also contains our answer to the -- to the statement that the District Judge did more than merely construe the statute, which is what the Criminal Appeals Act deals with and so far as direct appeal is concerned, and that he construed the indictment or that he rested upon the evidence which was before him. I don't know --
Felix Frankfurter: You'd say -- I didn't -- go on, finish your --
Oscar H. Davis: I -- I just don't know if I have much more to add to the -- to the statement that we have made in the -- in these documents to which I have referred the Court. We think it appears pretty clearly that all he did is to say the Hobbs Act doesn't cover this situation, Mr. Justice.
Felix Frankfurter: Would you agree that if the District Court says, I find that the allegations at the indictment do not charge of a crime under the statute that his statement is conclusive on us as to what he did?
Oscar H. Davis: That's right Mr. Justice. Under the -- under the cases which this Court has decided on the Criminal Appeals Act, I think, that's very clear that if the District Judge construes the indictment says, “That I find that the indictment does not allege requirement of the statute,” that is conclusive on this Court because the Court is bound by the construction of the indictment by the District Court. That's -- that's the -- that's what has been held in -- in many of these cases. As I say, we have not briefed it. I would be very pleased if any member of the Court would desire further brief on this point to -- to supply one. But we have not briefed it because we thought that the issue was resolved in this Court by the -- in this very case, by the denial of the motion to dismiss and by the granting of the Government's motion to strike the cross designation by the appellees of the record.
Earl Warren: Well, the facts of the case are pertinent to this hearing?
Oscar H. Davis: The facts in -- in the evidence --
Earl Warren: The evidence.
Oscar H. Davis: -- Mr. Justice?
Earl Warren: Yes.
Oscar H. Davis: No. We don't think they are. We think that all that's pertinent is the allegations of the indictment which are that these two defendants by force and violence, actual or threatened compelled these two Government contractors to employ these labors. Now, of course, the case will go back if the Court should uphold out position here to the District Court and then if the appellees appeal to the Court of Appeals on the issue of whether there was force and violence in the case. But I --
Earl Warren: I thought a moment ago though you said that the -- that the judge just -- the trial judge just looked at the evidence and the statute and came to this conclusion?
Oscar H. Davis: If I did, I misspoke myself, Mr. Chief Justice.
Earl Warren: Well, (Voice Overlap) --
Oscar H. Davis: I meant he looked at the indictment and the -- and the --
Earl Warren: I thought you said the evidence.
Oscar H. Davis: Well --
Earl Warren: I may -- I may have done (Voice Overlap) --
Oscar H. Davis: If I did, I misspoke myself.
Earl Warren: Yes.
Oscar H. Davis: I meant he looked at the indictment --
Earl Warren: Yes.
Oscar H. Davis: -- and the statute and came to a conclusion.
Felix Frankfurter: If you haven't said the former then you'd be out of Court.
Oscar H. Davis: Yes. Mr. -- I -- I would fairly be out of Court because this Court would have no jurisdiction to review that kind of decision. But the issue then as we see it in this Court is the very limited one. And that is whether the Hobbs Act covers a -- an indictment which alleges in nontechnical terms that the defendants by force and violence compelled persons engaged in interstate commerce to employ unnecessary and unwanted employees, in colloquial terms "featherbedding." But featherbedding with this crucial difference, featherbedding compelled by force and violence not featherbedding alone. Not featherbedding compelled by a lawful activity such as picketing or collective bargaining negotiations or -- or possibly even a strike because what we have in this case on this indictment is featherbedding compelled by actual or threatened force and violence. And the issue here is whether the statute covers that type of activity.
Speaker: Didn't your indictment alleging more than that? What about fictitious?
Oscar H. Davis: Yes, Mr. Justice Harlan.
Speaker: But so far as there are no services at all?
Oscar H. Davis: The indictment possibly could be construed that way but the District Judge did not so construe it. He construed it to mean that -- that it -- the services would be rendered if the -- if the employer would take them. And we think, as I quote, “We're bound in this Court by the construction of the indictment.” So, on that issue we don't argue that they were fictitious in -- in this Court on this appeal.
Earl Warren: But did he construe it that way because of the evidence in this case or -- or in an abstract way?
Oscar H. Davis: Well, I would say he did it in an abstract way, Mr. Chief Justice, that he -- he read the indictment and he decided that because it was imposed, unwanted, superfluous and that those were the dominant characteristics in -- in this case, as far as we can tell from reading the memorandum opinion of the District Court. The Government thinks that its position that the Hobbs Act does cover this crime is supported both by the words of the statute and overwhelmingly by the legislative history. And the short answer, we think, is applied first by the -- by the statute, which appears on pages 2 and 3 of the Government's brief. If you just read the words of the statute and compare them with the words of the indictment, we would think that -- that there is nothing in the indictment which is not covered by the statute. The statute begins by saying whoever -- whoever abstracts, delays, and so forth and the word "whoever" is a very broad word showing that the reach which Congress intended for this kind of statute. And particularly, it can cover a labor union. It can cover a labor union official or business agent of the union. And the second element is whoever in anyway or degree -- in anyway or degree and that too shows the reach of the statute. And the third element in this case is extortion or I should say first that the third element is interstate commerce. We don't have that issue in this case because the District Judge decided that in favor of the Government on the basis of the indictment and therefore that issue is not open here. But the crucial element is the element of extortion. An extortion is defined in the statute on the next page under subsection (b) (2) on page 3 and it says, "term extortion means the obtaining of property from another -- the obtaining of property from another.” And that is exactly what the statute -- what the indictment charges here that the defendants attempted to obtain the property from another in a form of wages. Now, wages are property and therefore that element of the statute is fulfilled. And the second element is, wrongful use of actual or threatened force, violence or fear or under color of official right. Well, under color of official right does not have any pertinence to this case but the indictment does allege the wrongful use of actual or threatened force, violence and fear. I stress the word "and" because it's not forced, violence or fear it's forced, violence and fear in the indictment.
Felix Frankfurter: But the indictment -- would the indictment have to say more than turn to the statute in this kind of a case?
Oscar H. Davis: No, it wouldn't, Mr. Justice.
Felix Frankfurter: After all we could ask for a bill of particulars so -- so far as --
Oscar H. Davis: That's right.
Felix Frankfurter: -- as the adequacy of allegations told, I could (Inaudible) you need to go beyond understanding the statute.
Oscar H. Davis: Well, that's right. But I don't want to fall into this trap --
Felix Frankfurter: No, no.
Oscar H. Davis: -- Mr. Justice. If the Court should merely hold that the -- that the indictment on its face stated the crime under the Hobbs Act and didn't go on to discuss the real issue in the case, which is extortion of featherbedding, we would then be faced with exactly the same problem by an appeal to the Court of Appeals. And that's -- the -- the issue in this case --
Felix Frankfurter: I don't follow the -- I don't follow it.
Oscar H. Davis: Well --
Felix Frankfurter: If it suffices and used the terms of the statute, what is right about that as a matter of law, the indictment is impregnable. It is simply alleging that, meaning to prove whether a given course of conduct, a specific standards or events do constitute extortion. Why do we have to go beyond that?
Oscar H. Davis: Well, there is no real substantial issue in the case then because, certainly, if the indictment alleged only what the statute provided it might be that -- that on proof we could show that -- that a highway robber man came along and -- and held up this land. And -- and we of course not be -- we would not be presenting and the Court would not be deciding the real issue in the case --
Felix Frankfurter: What?
Oscar H. Davis: -- which is presented by the statements which followed. That is, that -- that the property which was obtained are wages in the form of --
Felix Frankfurter: But you may say, I suppose -- I think, we haven't put the answer to my question in light of what just it is that while extortion just allegedly that the defendant extorted would satisfy the requirement of criminal procedure if the pleader goes on and defines what it means by extortion then you have the right confess that that which particularize this concept is extortion.
Oscar H. Davis: And if Mr. Justice, the pleader does not agree -- agrees that this additional particularization is not superfluous and we do not think it is superfluous. We think it is the gist of the case.
Hugo L. Black: May I ask you what the Court meant by this? What this Court now to say that when a labor organization or officer of said organization advocated and demanded in the form of labor which has been customary and agreed to by contractors or laborers in the community that the violation of this particular Act would just mean to be unreasonable. What was he talking about, anything in the indictment?
Oscar H. Davis: Yes. I think he was talking --
Hugo L. Black: Where is that?
Oscar H. Davis: I think he was talking about the provision in the indictment, the provision of the indictment which refers to money in the form of wages. This is the top of page 2 reading from count 1. Money in the form --
Hugo L. Black: What page?
Oscar H. Davis: -- of wages -- of the record --
Speaker: Well --
Oscar H. Davis: Money in a form of wages to be paid for imposed, unwanted, superfluous, and fictitious services of laborers commonly -- commonly known as swampers.
Hugo L. Black: Well, was anything there about the showing that it was customary or not customary in that community to demand what he was demanding here?
Oscar H. Davis: I think that the judge was interpreting the indictment to provide --
Hugo L. Black: And there was a dispute about that in the evidence, wasn't it?
Oscar H. Davis: If I'm free --
Hugo L. Black: Of that particular fact?
Oscar H. Davis: If I'm free to discuss the evidence --
Hugo L. Black: Well --
Oscar H. Davis: -- which is not here.
Hugo L. Black: What I'm trying to find out is what he meant here and frankly it looks to me like he was discussing the evidence, not the indictment.
Oscar H. Davis: I think not. I think the judge who after all was an experienced trial judge and was -- and knew that you can only grant a -- a motion for arrest of judgment under Rule 34 of the criminal rules on two grounds. That is if the Court didn't have jurisdiction or that the --
Hugo L. Black: And you -- you're talking about what --
Oscar H. Davis: -- indictment didn't state those things.
Hugo L. Black: -- what he knew. Well, what he mean by this? I conclude that the trouble in this community and all the particular jobs was caused by a disagreement between contractor and labor and was in nowise an attempt to extort for the use of either the union or the defendant bringing any money or property of the contractor.
Oscar H. Davis: Well, I think he was --
Hugo L. Black: What do you mean by that?
Oscar H. Davis: I think he was interpreting the indictment which --
Hugo L. Black: Everything in the indictment?
Oscar H. Davis: Yes. As a reasonable interpretation --
Hugo L. Black: Did he say so?
Oscar H. Davis: Yes. I think --
Hugo L. Black: What -- was there any evidence with reference to that -- what he's talking about here?
Oscar H. Davis: At the trial? There was a certain amount of evidence as to --
Hugo L. Black: That certainly, that was the issue, wasn't it?
Oscar H. Davis: No, I don't -- I -- I think it was -- it was an issue which was attempted to be raised.
Hugo L. Black: Did the defendant's claim that in this -- that in this community and this particular job, they had a disagreement between the contractor and the laborer and that it was not an attempt to extort for the use of the union?
Oscar H. Davis: Well, the indictment alleged --
Hugo L. Black: What was (Voice Overlap)
Oscar H. Davis: The indictment alleges that a disagreement between a labor union and the contractors, the labor union is one of the defendants and it says that the labor union attempted to -- to get the contractor to agree to something and that's a labor dispute and it says in what way? They wanted the contractor to employ swampers.
Hugo L. Black: But he said in this community. What he mean -- what did that have to do with the sufficiency of an indictment if it's not a decision on the facts?
Oscar H. Davis: The indictment alleges that this took place at a certain part of the County of Madison, in the State of Illinois and that's what he was referring to.
Hugo L. Black: Well, did the --
Oscar H. Davis: The District Judge --
Hugo L. Black: -- the indictment say anything about this community?
Oscar H. Davis: No, no. But I think that the District Judge and -- and -- I think we have to know that the District Judge was acting under Rule 34 which is limited and -- and what the test of the District Judge can do. He says, he was granting a motion for arrest of judgment and not a motion for acquittal. If he did grant a motion of acquittal, we might think it wrong but we couldn't come here. He denied the motion for acquittal and he denied the motion for a new trial. And if you take into --
Hugo L. Black: You're chief argument seems to be that we must assume that the judge is so familiar with this group that he wouldn't have discussed it, but it quite -- looks like he did.
Oscar H. Davis: No. Mr. Justice, I think if you read the entire opinion including the part where he talks about the main difficulty that I find with these proceeding is the charge in the indictment. That's how he start his opinion.
Hugo L. Black: I understand that.
Oscar H. Davis: Yes. I don't think that -- that fairly construed this opinion discusses the evidence. I think the judge was attempting to rest his -- his decision on the indictment and of course on his construction of the Hobbs Act. And that's the type of case which we think --
Hugo L. Black: Of course, if he wasn't -- if he wasn't, the question -- what he was intending to do if he was not discussing the indictment here which should turn him loose on the ground that the evidence hasn't shown he was guilty, wasn't it?
Oscar H. Davis: Well, it could have been that because he denied the judgment for -- of a motion for judgment of acquittal. He denies that specifically. And this opinion starts out by saying he denies the motion for judgment -- acquittal. And the order of the Court says, he denies it twice. So --
Felix Frankfurter: What about the fore part of the sentence which Justice Black read. Its -- Judge Moore in Saint Louis where the -- and could this -- and the jury couldn't have talked about this community?
Oscar H. Davis: No. And he talked about a similar indictment.
Felix Frankfurter: Similar indictment?
Oscar H. Davis: Indictment. I think he -- perhaps in a somewhat --
Felix Frankfurter: Any --
Oscar H. Davis: -- inartistic way, the judge was simply construing the --
Hugo L. Black: But -- but he wasn't talking about the community and Judge Moore's community, wasn't he?
Oscar H. Davis: Oh, no.
Hugo L. Black: He was talking about this community.
Oscar H. Davis: Well, the -- the indictment alleges that where this happened --
Felix Frankfurter: That he relied on what Judge Moore did in a different community.
Oscar H. Davis: That's right. And on in -- on the basis of an affidavit --
Hugo L. Black: Well suppose --
Oscar H. Davis: I mean, an indictment which was similar.
Hugo L. Black: Suppose the rule -- suppose the practice had been one thing in Judge Moore's community. Would this judge by reason of his supreme knowledge of the rules have had a right to judicially know that the practice in his community was the same as in Judge Moore's community?
Oscar H. Davis: I don't think he was talking about the practice, Mr. Justice Black. I think he was talking about what was alleged in the indictment. What the actual proof was, was not before him at the time.
Hugo L. Black: Which was Judge Moore's case?
Oscar H. Davis: It's a non-reported case referred to at the bottom of page 16, United States against (Inaudible) et al.
Earl Warren: Did he consider the evidence at all in the --
Oscar H. Davis: I don't know what --
Earl Warren: Judge Moore?
Oscar H. Davis: -- what Judge Moore did. I haven't looked at that.
Hugo L. Black: Do you know anything about how Judge Moore turned turn him loose or why he turned him loose except what this judge said?
Oscar H. Davis: I don't even know that he did turn him loose, Mr. Justice --
Hugo L. Black: Could we find it in any book?
Oscar H. Davis: No. I -- I have no knowledge about those.
Hugo L. Black: We can't rely then on what Judge Moore ruled as to an indictment, can we?
Oscar H. Davis: No. That isn't the question. The question, I think, Mr. Justice is what this judge ruled as to this indictment and we --
Hugo L. Black: What I thought.
Felix Frankfurter: The point is that what --
Hugo L. Black: If he did.
Felix Frankfurter: -- the judge there said, refer to what Judge Moore did in a similar indictment, not in a similar trial.
Oscar H. Davis: He says after reading the indictment, Mr. Justice Black, I concur with the decision of Judge Moore in a similar indictment.
Hugo L. Black: Where was the judge -- in that Court?
Oscar H. Davis: Southern District of Illinois.
Hugo L. Black: Where was Judge Moore?
Oscar H. Davis: In Missouri.
Speaker: Saint Louis.
Oscar H. Davis: Yes.
Hugo L. Black: Saint Louis.
Oscar H. Davis: Yes.
Earl Warren: Is Judge Moore's opinion reported any place?
Oscar H. Davis: I don't know if that it is, Mr. Chief Justice. I haven't looked for it and I haven't found it. It isn't -- no, I'm sure it isn't recorded because if it were it, it would be under the annotations and I've seen all the cases under the annotations of the statutes so I'm --
Felix Frankfurter: Is Judge Adair (Inaudible) did you say Madison County?
Oscar H. Davis: I don't know where Judge Adair's --
Felix Frankfurter: The same -- what county is it, you mean?
Oscar H. Davis: The -- the allegation of the indictment is that this occurred in Madison County in Southern Illinois. Judge Adair is the District Judge or was the District Judge for the Southern District of Illinois. The case was actually tried in Quincy, Illinois, and little further north. Before I sit down, I would like to say that -- that the legislative history of this case of -- in relation to this statute is overwhelming, absolutely overwhelming. About 15 years ago this Court had a case, United States against Dickerson in 310 U.S.in which the words of the statute appeared upon it one way but the legislative history appeared overwhelmingly to point the other and in that case the Court shows the legislative history over the words of the statute. But we have here a case, we think, where the words of the statue point the same direction as the legislative history overwhelmingly points. I don't have time orally to go into all the -- all the elements of the legislative history. But, I think that if the Court will review both the hearings and the -- and the reports and the actual debates in Congress, they will say that prime purpose, the purpose stated again and again and again throughout the debates of -- of this -- of the statute, the Hobbs Act was to overturn the ruling of this Court in 1942 in the Local 807 case where this Court held that practices which we think are comparable to this were not within the former anti-racketeering statute because it had certain exceptions with relation to labor. Exceptions for a bona fide wages paid to a bona fide employees by a bona fide employers.
Stanley Reed: Did I understand you say the Dickinson case?
Oscar H. Davis: The Dickerson case --
Stanley Reed: Dickerson.
Oscar H. Davis: -- in 310 U.S. That, of course, Mr. Justice, doesn't relate to this statute. It's just a -- and immediately proceeding that is --
Stanley Reed: I noticed -- you didn't cite that case?
Oscar H. Davis: No. An immediate proceeding of that decision of the Dickerson case is the decision in which you were the author, United States against American Trucking Association where you also relied very heavily on legislative history. So, I say he had the legislative history coincides and reinforces the words of the statute because I think there can be no doubt that if one goes to the legislative history, that the prime purpose of Congress was to overturn the ruling in the Local 807 case and to make featherbedding a federal crime if it affected interstate commerce and if featherbedding was compelled by force and violence. Now, a good deal has been said in the brief of my Brother about featherbedding not being a crime, it just so. Well, of course not. This is featherbedding compelled by force and violence. That's what Congress was getting after. They wanted to prevent people from being compelled to hire employees whom they didn't want, compelled by force and violence. And the -- the whole -- not only the drift but the whole drive of the legislative history and of the amendments which Congress rejected including amendments by Congressman Cuellar and Congressman La Follette, Indiana which would have preserved some of the argument for which the appellees are contending. The whole drive of that history was in the direction of the position in which the overnment is contending for here and which the Third Circuit adopted in the Kemble case and which this Court denied certiorari about two years ago. And that is that where an indictment alleges that featherbedding was compelled by force and violence. It is within the terms of the statute because it constitutes extortion under -- under the statute.
Stanley Reed: I suppose at this time we don't have to consider it, I think in regard to the force and violence (Voice Overlap) --
Oscar H. Davis: No, Mr. Justice, you don't. All that's here is the indictment which alleges sufficiently the force and violence.
Earl Warren: Mr. Davis, the thing that concerns me is that the trial judge said at the outset, he determined that the indictment was good and then he speaks about the similarity with this case in the Southern District -- the Eastern District of Missouri. He says in this type of cases the original demand is unlawful and certainty the means to carry out the demand in those cases were unlawful and within the purview of the statute and the constitutional limits of Congress to enact statute to protect interstate commerce. Then he says this, “In the case at hand, I conclude that Green's original activity in attempting to obtain from Arthur W. Terry, Jr., his money in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers which said charge was seriously controverted, was of itself not a violation of this statute." Now, how could he say that without considering the evidence in the case?
Oscar H. Davis: Because, Mr. Chief Justice, he construe the indictment is alleging that all -- that what this union and this business agent were doing were attempting to get these contractors to employ men but -- and if they had not used force and violence, they would lawfully have been able to get these contractors to employ these men. If for instance they had done it by picketing or by negotiating, there's no doubt that it would not have been a violation of any -- any statute federal or state to hire these men. And he -- what he is saying is that I can't think that a -- a Congress made an activity of this type to be unlawful, merely because force and violence were used. And -- and that's what he says. In the next paragraph, it seems in -- on page 16 after he cites the two cases in this Court which as he construe the indictment would make the employment of these swampers to be perfectly legal because they were actually gonna do the work. Then he says, it seems incongruous that Congress intended a lawful action on the part of Green in demanding money in the form of wages from the contractor to being paid, for imposed unwanted, and fictitious services of laborers accompanied by either threats of force and violence, which under state law accounted only misdemeanors can be punished as a severe felony. He is looking simply we think at the -- at the indictment as he construes it and he construes the indictment to provide that -- that what they were doing would be lawful if the force and violence perhaps and we agree to that. And so therefore, we think it is a construction of that.
Hugo L. Black: What was the relevance here of the idea of -- it being controverted here?
Oscar H. Davis: I think that's just a side remark that he --
Hugo L. Black: Just a side remark?
Oscar H. Davis: After all, Mr. Justice, this did take place after the -- after the --
Hugo L. Black: Well, was it seriously controverted in the evidence, that -- that allegation?
Oscar H. Davis: Oh, yes.
Hugo L. Black: That it was seriously controverted in the evidence and he referred to that and said this allegation indictment was here and seriously controverted.
Oscar H. Davis: But he says --
Hugo L. Black: And then he says was of itself not a violation of the statute. It was within his rights and responsibility to the union representative which was not prohibited by the statute.
Oscar H. Davis: But he is talking about the allegations of the indictment.
Hugo L. Black: Indictment of -- but -- but he is not when it says controverted.
Oscar H. Davis: Yes.
Hugo L. Black: Referring to the evidence is enough.
Oscar H. Davis: No. I think what he is saying, Mr. Justice Black, is that I can't believe that where a labor union is -- is trying to get employment and this is a customary activity in the -- or this is done in -- in areas that Congress meant to outlaw that kind of activity.
Hugo L. Black: May I ask you this? Because I'm not sure -- I'm not sure we've ever passed on it. Suppose one might agree with you that he was construing the indictment in a certain way and having construed it in that way, he acquitted it, could you appeal it anywhere?
Oscar H. Davis: Oh, no. If he --
Hugo L. Black: You could --
Oscar H. Davis: If he acquitted --
Hugo L. Black: So that what he meant here was that this allegation, if what he meant in the allegation was that it was seriously controverted. And he thought that evidence was enough to show that the controverted -- that those who were controverting were right and not the allegations. Then he is acquitted and he can't be tried anymore.
Oscar H. Davis: If -- if the judge meant that on the evidence he held with the defendants rather (Voice Overlap) --
Hugo L. Black: Even -- however, he construed the indictment.
Oscar H. Davis: That's true.
Hugo L. Black: Even he construed it wrong.
Oscar H. Davis: But I -- I recall again to you Mr. Justice Black that he starts out of his opinion --
Hugo L. Black: I understand that (Voice Overlap) --
Oscar H. Davis: -- the motion for judgment acquittal are --
Hugo L. Black: -- but as -- with reference to a defendant in a criminal case, we don't usually, maybe we will, but we don't usually look around with a microscope to try to find at some place where he says, he'd turn him loose that maybe he is sorry he did it.
Harold Burton: This question comes up on the motion in arrest of judgment, isn't it?
Oscar H. Davis: That's right, Mr. Justice.
Harold Burton: That then -- that raises the questions only to the efficiency of the indictment.
Oscar H. Davis: That's right under Rule 34 --
Hugo L. Black: And that Rule was before the Court, wasn't it?
Oscar H. Davis: That is the -- that is the question which we understood the Court took when it made a probable jurisdiction --
Felix Frankfurter: But maybe -- that he would have to say that Judge Adair in order to avoid directing an acquittal in which he believe in order to avoid granting the defendant an acquittal for which he thought he was entitled rather -- rather skillfully (Inaudible) afterwards guilty. He said in arrest of judgment instead of, “I directly bring in a verdict of acquittal”, is that it?
Oscar H. Davis: That's right.
Felix Frankfurter: That -- they hold that.
Oscar H. Davis: That's right.
Hugo L. Black: Well, I do -- but I want to see if you agree to that as I understood it. You agree that in order to hold that the man honestly believed, the judge honestly believes on this record, that a man acquitted here, that he's got to raise the conclusion that there was something nefarious about what Judge Adair did.
Felix Frankfurter: I wasn't talking about (Voice Overlap) --
Hugo L. Black: That he was (Voice Overlap) --
Oscar H. Davis: Nefarious?
Hugo L. Black: That he skill -- that he skillfully --
Oscar H. Davis: No.
Hugo L. Black: -- concealed was he was trying to do.
Felix Frankfurter: But he would have to do that because an acquittal is not reviewable but a motion in arrest of judgment is reviewable --
Oscar H. Davis: Mr. --
Felix Frankfurter: -- either here or the Court of Appeals.
Oscar H. Davis: That's right.
Felix Frankfurter: So, in order to deprive the defendant of his right to an acquittal is not reviewable by the Court. He was great to deal in the property, to use another word, that in arrest of judgment nor to deprive him of his right to be acquitted.
Oscar H. Davis: Not only did he say an --
Hugo L. Black: Do you agree with that?
Oscar H. Davis: -- arrest of judgment but --
Hugo L. Black: You -- does the Government agree to that?
Oscar H. Davis: I think one -- one needn't agree to that, though I think that's a permissible interpretation of what was done.
Felix Frankfurter: Well, what's the act -- just give me the answer to that interpretation that if he was entitled to the acquittal, it was the duty of -- of conscientious judge to order and acquittal and not deprive him of that right under the Constitution by calling it a motion of arrest of judgment.
Oscar H. Davis: The only answer I can think, Mr. Justice --
Hugo L. Black: Who named it a motion in arrest of judgment?
Oscar H. Davis: The -- the --
Felix Frankfurter: The judgment --
Oscar H. Davis: The appellee and the judge calls it that way.
Felix Frankfurter: Not the appellee, the judge.
Oscar H. Davis: The judge does --
Hugo L. Black: He came up on a motion -- suppose the motion had come up on -- an arrest of judgment and he had said instead of saying only what -- what you have quoted to find this precise type that we've just read, would you say -- would you read that as an intention to acquit? He had never said that he was ruling on the indictment.
Oscar H. Davis: I think it would be a very hard question, Mr. Justice Black.
Hugo L. Black: And you wouldn't have to attack the judge's motives, would you?
Oscar H. Davis: I'm not -- it's not my place to -- and I don't believe that any member of the Court is attacking the judge's motive.
Felix Frankfurter: I was acquitting the judge.
Oscar H. Davis: Yes.
Felix Frankfurter: I was acquitting instead of attacking him.
Oscar H. Davis: I -- I think that's correct. But may I call the attention of Mr. Justice Black, one more thing, one more material element in this dispute. On page 18 of the record, the judge sustains the emotion for arrest of judgment solely on the grounds here and above set forth solely. So --
Hugo L. Black: Solely on the ground set forth. Now, where is that?
Oscar H. Davis: On page 17 and 18. This is the order on the motion.
Hugo L. Black: Yes. The -- the grounds above set forth.
Oscar H. Davis: That's right.
Hugo L. Black: Was he talking about his opinion or the (Voice Overlap) --
Oscar H. Davis: No. He's talking about the immediate grounds set forth above in -- on page 17, immediately above in -- in his order in which he quotes from the part of the motion in arrest of judgment in which the appellees quite properly move under Rule 34 for arrest of judgment. And under the grounds which Rule 34 says that you can use for a motion for arrest of judgment.
Felix Frankfurter: When -- may I ask one more? It is now contented that it could -- it is now contended that the indictment --
Oscar H. Davis: I'm sorry, I didn't get the page, Mr. --
Felix Frankfurter: Page 50, the last paragraph. It is now contended that the indictment does not heretofore that that -- it is the meaning of the above section. Who contended that?
Oscar H. Davis: The appellees.
Felix Frankfurter: They said this indictment doesn't make out a case under the statute. That's what the Court was considering and he so find.
Oscar H. Davis: Their motion --
Felix Frankfurter: And that is the determination of the statute and I don't understand elementary law?
Oscar H. Davis: The motion which the defendants made appears in the record at pages 12 and 13 --
Hugo L. Black: Have you --
Oscar H. Davis: -- and is limited to the -- to the grounds which one can raise under Rule --
Felix Frankfurter: Is that the right of then myself, doesn't it?
Oscar H. Davis: [Laugh]
Earl Warren: Mr. Fitzgerald.
Arthur M. Fitzgerald: The Court please.
Hugo L. Black: (Inaudible)
Arthur M. Fitzgerald: I tried this case merely to follow because they convicted my client. But during the --I think it did take either nine days to try the motion at that time, practically orderly, was consumed by evidence. Now, its utterly impossible to say to Judge Adair and I have in mind what the Court -- this Court has repeated -- not to repeatedly but several times said, that we look at the substance not merely at the name. Now, I cannot conclude at all. Judge Adair was an able man but was not a well man. In fact, he died about six or seven weeks ago.
Earl Warren: Who is that?
Arthur M. Fitzgerald: Judge Adair who tried this case. His home was at Quincy. Mr. Frankfurter, I think asked his home. He -- that --
Felix Frankfurter: Is that at Adams County? You said --
Arthur M. Fitzgerald: No, sir. That is over in Adams County, carry over on the Mississippi River, a considerable distance away from the -- and it is northwest of Alton and Granite City, Illinois which --
Felix Frankfurter: Those are (Inaudible) naming your county, did they have both in Adams and in Madison County.
Arthur M. Fitzgerald: Well, the Adams County is Quincy where Judge Adair lived and where this case was tried. And Madison County is where these locks are located around the chain of rocks which has been an impediment to the navigability of the Mississippi River and it's a great lock, it's the largest in the world which was established there. There is a footnote, if the Court please, I'm supplementing a mere reference by Mr. Davis to the -- or duties of a swamper and there's a footnote in our brief, I forgot on what page it was. I think it's -- it's on page 14 of our brief with reference to the duties of a swamper and they're very much flagrant of course than the reference made by Mr. Davis. Now, I want to -- on our brief and in the motions that we've made originally for the dismissal of this case because of the fact this was not in fact a judgment arresting a judgment but once in fact a judgment because I thought which in the civil law is commonly called non obstante veredicto. I still think that that is what it is. It's utterly impossible, the whole purpose that Your Honors have in asking and -- making a part of your rules at any memorandum opinion or an opinion of the Court rendering a decision which comes before Your Honors for considerations shall be -- shall be concluded as part of the record. Now, that can only have the purpose of guiding the Court. Of course, it isn't and you normally am sure for this Court or persons who've had experience and they practiced in order to realize the Court's after all, all are men. Judges differ. Their opinions maybe stated one way when in fact the thing that they have in mind is an entirely different thing than that which is said. There is no way from several references in this memorandum opinion of the judge that it can be said that the judge was referring to the indictment, when he said I conclude in the case -- case at hand that brings original activity in attempting to obtain from Terry his money in the form of wages to be paid and -- for imposed, unwanted, superfluous, and fictitious services, which charge was seriously controverted. Now, how could that be controverted from anything the indictment says. It's an (Inaudible) It couldn't possibly have been. This opinion, you know, the judgment, an arrest of judgment as the record shows was returned, was entered by Judge Adair on January 24th, 1955. During this case, returned its verdict as I recall it, on September 23rd, the year before. During that time and after the argument of this case, the matter of opinion before the Court took some considerable time. And we were wondering why there had not been a judgment entered upon the matter of which we would've had notice. We finally -- we didn't receive the memorandum opinion and a copy of the judgment order from the judge which we had no knowledge about until we did this, as I say some four, nearly five months later. Now, we haven't abandoned it but I don't want to take the time up just anymore unless Your Honors desire to ask questions about it, upon the question now which deals with whether or not to have jurisdiction under the provision of the statute authorizing the appeal under certain circumstances that are confined with the Court.
Stanley Reed: Before -- before you do that, the trial -- the judge said, Judge Adair, that motions for judgment of acquittal a new trial were asked?
Arthur M. Fitzgerald: That's right.
Stanley Reed: Where -- where does that show in this?
Hugo L. Black: Page 10.
Arthur M. Fitzgerald: They have not been shown, a mere -- I think this docket entry were a part of the record. I had hoped --
Speaker: (Inaudible)
Hugo L. Black: Docket entry is on page 10 of that --
Arthur M. Fitzgerald: Yes. It involved the (Voice Overlap) --
Stanley Reed: The only -- the only --
Arthur M. Fitzgerald: Yes, Your Honor.
Stanley Reed: The only motion that I find is the motion of Green in arrest of judgment on page 12.
Arthur M. Fitzgerald: Yes, sir. But I thought that the record here does show those docket --
Stanley Reed: Yes it's here.
Arthur M. Fitzgerald: -- entries of the filing of those motions.
Speaker: The alternative, a new trial?
Arthur M. Fitzgerald: What page is that on?
Stanley Reed: It's on page 10.
Earl Warren: Page 10.
Arthur M. Fitzgerald: Page 10, I think it is Your Honors.
Earl Warren: Bottom of the page.
Stanley Reed: But the only motion that we have here is the -- is the motion in arrest of judgment, isn't not?
Arthur M. Fitzgerald: That's the only of course that the -- the Government as -- to mean was important in this case.
Stanley Reed: And the only one that you believe is important?
Arthur M. Fitzgerald: I filed a motion or permission to print this entire record.
Stanley Reed: And that was the denied.
Arthur M. Fitzgerald: That was denied. It was tendered to the clerk of the Courts $7000 from that purpose for the reason that we desire to have the Court, have all of the record. I thought that the necessity for printing our motions for a new trial, motions for directed verdict, conclusion of the Government's case and again the conclusion of all of the evidence weren't important in due of the issue that was presented here in this case.
Speaker: But this is all the record that we here now.
Arthur M. Fitzgerald: That's right. This is the only record Your Honor has. You should've asked questions about whether they were disputed facts that the Court was referring to, Mr. Davis is of the opinion, of course, I respect it, that he is merely referring to the indictment. But I'm utterly unable to find in the indictment any justification for that conclusion. I'll go on to the thing that I think is an issue in this case and Mr. Davis very frankly -- he has conceded that there is but a single issue in this case, and that is whether featherbedding and, of course, he faces his opponent force and violence, is one of the objects of the Hobbs Act. Let us go to the Copeland Act that was passed in 1934, in a two-seven decision --
Stanley Reed: Well I -- I don't understand if that that was the contention of Mr. Davis or perhaps I misunderstood him (Voice Overlap) --
Arthur M. Fitzgerald: (Voice Overlap) --
Stanley Reed: -- I understand the statute to be that featherbedding brought about by a forced environment.
Arthur M. Fitzgerald: Yes, sir. I thought I had stated that. I meant that featherbedding and of course it must be featherbedding by a robbery or extortion and I'm going to get to those things. That means force and violence which produces that result as well as having an intention in the part of a -- upon the part of the robber or of the -- the extorter. I want to go over the Act in this case because the construction of this law, it seems to me, is essential orderly from -- not only, and I am very pleased here, Mr. Davis says that he would like to submit it, a form of congressional record of what the purpose of the Act was. In the Copeland Act and the Hobbs Act of 1946 was enacted because the provision in the Copeland Act set -- that it modify in all situations although there has been in effect robbery and the extortion because while those terms were not used in the Copeland Act and were embodied in both the original Hobbs Act of 1946 and the codification of 1948 had nevertheless, that was the purpose that was had in mind that from the very time that that statute was enacted, first enacted it was known as the Anti-Racketeering or labeled in the Code or was the Racketeering Act. That is all that have been always been carried along both as to the Hobbs Act for resuming as to the codification. For the first time in the Act of 1946, the Hobbs Act, the first one before the codification modified it a little but not in substance, the terms robbery were specifically mentioned and extortion also was specifically mentioned. Primarily, we're talking about interference from Congress, I mean commerce, interference with commerce was not to be confused with crimes merely --crimes which are interference are one thing but the regulation of commerce primarily is a regulation. It is not that denouncement of a felonious charge against anyone and it has been so treated and treated many times. Now, Copeland in 1934, the Hobbs in April, as I remember of 1946, the Lea or Petrillo Act in June of 1946, the Taft-Hartley Act the next year and the legislative history is pretty interesting in those connections. The Taft -- Senator Taft said that the had that reframed because they're awaiting for a decision of this Court, the validity of the Lea Act where the finding was different and that Act was held on -- it was held constitutional. Now, I think without question in my mind that Congress has the power if it desires and as defined because there are no common law definitions of crime in the federal laws. If it defines robbery with an intent and this order is implicit in robbery and in extortion upon the part of the robber or the extorter to take from one by force and threats his property, money or whatever it is, it's personal of course. And that those threats shall compel him or induce him both on contempt and the (Inaudible) Now, if Congress passes such a law then of course, I think it is within the power of Congress. That was not what Justice Adair had in mind. Judge Adair had in mind that under the indictment in this case where although the word "extortion" is used the facts that are charged as the basis upon which that extortion charge rest is nothing but featherbedding and those words that are used in this statute amounts to nothing except the things defined in the Lea or the Petrillo Act. Now, that decision in the Lea or Petrillo Act was passed, I think, as I remember about in 1900 -- no, these were the statutes. I -- I don't remember just the date of the Lea of Petrillo Act and that's merely because I'm getting too old, I have a good memory. But prior to the opinion which was handed down by this Court in that case, Judge Taft said that there were some doubt about validity and that the matter was before the Court and they thought they would abstain the -- not do anything further about the Petrillo or the Lea case until that decision was handed down and they never have done anything since. Now, it does not seem to me to be sensible or reasonable. One, that where it works, a robbery and extortion that have always been felonious clients, they're not regulatory things would a definition that even the stupidness, federal knows which are faced and premised upon first an intent to commit robbery upon the part of the robber or upon the part of the extorter, and they're so close kinship between Kick -- the Kickback Act and the blackmailing principle that they're all involved in that larceny thought. They are all implicitly included for the benefit of the robber or the extorter. They're not doing it in many humane ways. There isn't anything about it that's charitable. It's a selfish, stupid, rotten thing from its very inception. Now, if it were the intention of the makers of the Hobbs Act of Congress when they passed that Act at the time within two months and a half afterwards when they passed the Lea Act to have said that featherbedding was to be included in it. Why didn't say so? They did pass the Lea Act after the decision of this Court holding that it was constitutional. They did nothing about it. Now, in featherbedding as the most prevalent thing in the world generally in the labor union, then it would be one of those things that ought to be definitely designated. Judge Adair's opinion was, in my judgment when he said withhold -- to hold so that this -- that this indictment was a sufficient indictment under the Hobbs Act would be to extend the jurisdiction of this Court beyond my constitutional limits and the jurisdiction of Congress beyond its powers. Now, what does that mean? It means just what the Fifth and the Sixth Amendments of the Constitution were adopted for that person's charge would a felonious crime, those are the infamous crimes, shall be specifically informed. It is not essential that that be done by a bill of particulars and there is nothing in this indictment that complies in my opinion with the apparent obligation of the pleader and the preparation of an indictment which is set out from a perspective of the entire Hobbs Act and of course that's what the Court always does in construing a statute. Now, just one other thought that I have. I don't keep time very well and I presume that it could buzz the lights when I'm nearly through. Judge Adair sought that to construe this Act as an intention upon the part of Congress to want, I will put it perhaps I would say insinuatingly, though in fact are to lure a person into a sense of false, security, featherbedding were included within the terms and intention of Congress, and of course we cannot include any such intention to Congress. Congress didn't want that. Congress had no such intention and Congress never intended that any construction it placed upon this indictment, which would violate the restraining influence and sanitary purposes of the Fifth and the Sixth Amendments and there can be no question about that. Now, that was the sole meaning and the sole part that Judge Adair must have had. Unfortunately, did not see him. I happen to be out of the country at the time of his death, so I don't know from any conversation about the matter (Voice Overlap) --
Earl Warren: Mr. Fitzgerald,how -- how do we differentiate between these two situations? In this case, you have a misdemeanor featherbedding statute and then a long term, this racketeering statute, assuming that Congress did intend to do it.
Arthur M. Fitzgerald: Yes, sir.
Earl Warren: And they make the featherbedding by force and violence to felony, punishable by 20 years in the penitentiary. Now, take that on the one side and take on the other side the ordinary situation that we have in -- in larceny if the legislature provides, if -- that if someone steals something of small value say of $5, it's a misdemeanor. But if it's done by force and violence, it's robbery and a felony. Now how --
Arthur M. Fitzgerald: It is from the person he had served --
Earl Warren: How do you distinguish between those two?
Arthur M. Fitzgerald: That's right. Force and violence of course with the intention Your Honor. And we must keep that in our minds. Now, in the Local 807 case, there are two interesting statements that are found there and the Government contends that the 807 case and it is -- it was a case upon which there was initiated the bills and the number of them were filed. It resulted in the enactment and codification of the Hobbs Act and I think it was a very necessary thing to do. The Government was mistaken when it said that we thought that the fact that a person was a member of a labor union or a labor union was immune. It is our contention in this case merely because of the fact that it was a labor union or a member of it. We never had any such idea. The Hobbs Act applies to any robber or to any extorter whether he is a member of the labor union or Salvation Army or the United States Army or any of the organization or does it individually, if he does it with an intention to rob, and implicit in that in all robbery is that it is with a selfish person -- selfish reason of robbing for his own benefit. Now, every single case --
Earl Warren: Robbing -- what was that last phrase, robbing for what?
Arthur M. Fitzgerald: His own benefit.
Earl Warren: You mean --
Arthur M. Fitzgerald: There's no altruism in robbery or extortion --
Earl Warren: No. But If he rob --
Arthur M. Fitzgerald: (Inaudible)
Earl Warren: -- if he rob to give it to charity, would he be relieved of the obligation?
Arthur M. Fitzgerald: He would absolutely be a robber.
Earl Warren: Could be a robber, wouldn't it?
Arthur M. Fitzgerald: Why the Court -- what -- but you overlooked the thought. He gets it first. Give afterwards, either his conscience or because he thinks that he will in some way atone or if he thinks it will make him a big shot locally he does that. Still, he does it for his own selfish purpose. That's the inherent thing in both of those crimes and there is not a single conviction. Under the old Copeland Act or under the Hobbs Act where that is not the facts, we go back to the old companion case in which a $1,100,000 was gotten by a buyout from the motion picture industry. And every other case that's cited by the Government or found by us is a case in which personal moneys for the fellow who was the extorter in every instance were kept and those amounts run from small amounts like $7500 to $50,000 to $1,100,000. That's the purpose of this law. Justice Byrnes said in this majority decision in the 807 case in replying to an objection of the Government that the objection of the Government in this case has this true significance that it places an added burden upon the prosecutor rather than upon the accused. That is the prosecutor must first establish a criminal intent upon the part of the defendant and he must then make the further showing with respect to the victim's state of mind, he must through that intent and the accomplishment of the fear, fact of this rule is to run through a conviction of robbery more rather than less difficult. Now, Chief Justice Stone would dissent it clarifies that proposition. You said the robbers forced and is intended effect upon the victim are essential elements of the crime both of which the prosecutor must prove. Jury was told that convict -- it must plan -- this is a conspiracy case, find conspiracy or agreement where respondents violate the statute and that they must have -- must have the purpose or intention to commit the crime. As I have said, the intention to commit the crime, commit the offense includes the intention, to use force and violence on the -- the victim. Now, in view of the history in the long known thing which in the Taft-Hartley Act designates featherbedding as an unfair labor practice in which in the Lea Act is made a misdemeanor and in the opinion in that case called a regulatory law. How then can it be said that the persons bringing and any members of the union, and they just included as the union could have had any such intent, as that's implicit and as the term "robbery" as defined by the statute itself and the term "extortion" which must of course does include because it's a basic part of the old larceny law, the same necessary essentials that is important in the definition of this felonious crime. It seems to me that to say that these people had such an intention in this case is to read into the things which the Court's opinion showed should not and do not belong to that. I think I have used my time.
Earl Warren: You have --
Arthur M. Fitzgerald: Thank you very much.
Earl Warren: You have two more minutes more if wish.
Arthur M. Fitzgerald: But no -- if he -- would he like the undertaker (Inaudible) had a funeral and he had a friend who was a real estate man in Florida and after the little talk by the undertaker about asking if there was anyone who would desire to say anything about the deceased and no one said anything, the real estate man came up and he said, "Well, it seems nobody else is going to talk. I'd like to tell you what great land we have in Florida.” It's been a very nice thing to talk to. I thank you very much.