Earl Warren: Number 51, United States, appellant versus Joseph Francis Nardello and Isadore Weisberg. Mr. Solicitor General.
Erwin N. Griswold: May it please the Court. I move the motion pro hac vice for the purpose of arguing this case of Mr. Philip A. Lacovara of my staff who was a member of the Bar of the State of New York.
Earl Warren: Motion is granted. Mr. Lacovara.
Philip A. Lacovara: Mr. Chief Justice, may it please the Court. This case which is here on direct appeal from the United States District Court for the Eastern District of Pennsylvania grows out of the efforts to uncover and prosecute the members of a multi-state ring which specializes in extorting money from victims upon threat to accuse them of homosexual activities. The indictments in the present case were returned under a federal interstate racketeering statute. The so-called Travel Act Section 1952 of the Federal Criminal Code which makes it a federal offense to travel in interstate commerce with the intent to carry on an unlawful activity including extortion in violation of the laws of the state in which committed and thereafter to perform an act promoting that objective. The indictments in the present case were on appellee's motion dismissed by the District Court. The Court found first that in using the term extortion, Congress intended that the term should track closely the legal understanding of that term under state law. But that in Pennsylvania, the crime captioned extortion is the common law form of extortion, that is the crime committed by a public officer who takes an unauthorized or excessive fee. In that sense, the appellees had not been alleged to be public officers and in fact were conceded not to be. The indictment failed the state in offense against them. It's the Government's contention that this statute uses the term extortion and the other terms that are listed in the statute generically, so that conduct has referred to a sort of criminal activity, extortion at acts and that interstate travel to promote this type of act is reached by the federal statute so long as the conduct is made unlawful by the law of the state whatever the particular label the state happens to attach to it. The issue before the Court this morning is whether the Government's construction rather then the District Court is the correct one. The Travel Act which was enacted in 1961 is part of a series of measures to combat organized crime and racketeering makes it a general offense provides generally that interstate travel to promote an unlawful activity as subsequently defined is a federal violation. Interstate -- unlawful activity could be in violation of the law of the state or of the United States and for relevant purposes the statute makes it a federal violation to travel in interstate commerce to carry on extortion in violation of the laws of several -- of a particular state. The allegations in the present indictments alleged that at least one of the conspirators traveled in interstate commerce from Chicago to Philadelphia in two cases and from Camden, New Jersey to Philadelphia, and the third with the intent to promote an activity unlawful under Pennsylvania law. The controversy in this case arises from the fact that under Pennsylvania law, extortion at conduct is termed blackmail rather than extortion but Pennsylvania does have as I mentioned the continuation of the original ancient common law and notion of extortion, the acceptance by public officer of unlawful fees. The District Court on its analysis of the language of the statute and its legislative history concluded that Congress intended when it spoke of extortion and violation of the laws of the state in which committed that the federal term should track closely the legal understanding of that term in state law. We contend that this construction of the statute, this serves the remedial objectives of this federal legislation and in supportively narrows its plain meaning. I should like to turn first to the background and purpose of the statute. I mentioned that this was one of a series of measures submitted by the Department of Justice in 1961 to bring federal resources and the federal criminal process to bear on a problem which had outgrown the capacity of state and local governments to deal with. And that is the situation which we've encountered through the ability of the modern organized syndicate criminal to conduct illegal operations from a remote state sending minions back and forth across state lines to carry out various forms of illicit activity using the long distance telephone to manage or carry out various forms of violations of state laws. This mobility and this diffusion of organization made it extremely difficult for state and local authorities to investigate or to prosecute violations of their local laws. Now, the statute as it's clear both from its language and its legislative history does not pruport to close off the channels of interstate commerce to all attempts to violate state law because its focus was organized crime and racketeering, the organs of communication from one state to another were to be interrupted for those who would travel in commerce to carry out unlawful activities only with respect to activities which years of investigation by state and local crime commissions by the Federal Government and by Congressional Committees had shown to be the mainstays of organized crime. And for that reason, the term “unlawful activity” in the Travel Act is defined to include only business enterprises involving gambling, prostitution, liquor and narcotics violation and extortion, bribery and arson in violation of state or Federal law. These were the activities that these investigations had established to be one of the principal occupations of the organized modern nationwide criminal operations. The question before the Court is what Congress intended to reach by using the term “extortion in violation of the laws of the state in which committed.” The District Court has held that in Pennsylvania and therefore as it recognized in at least 12 other states which also do not condemn extortionate activities under the heading extortion but instead maintained some continuation of the common law notion of extortion that this federal statute reaches only travel in interstate commerce into a state by a public official of that state to accept an unauthorized fee. Now, it is our contention that this narrow construction by the District Court is plainly an error. Abusive office was not one of the principal forms of violations that motivated Congress to pass this federal legislation dealing with interstate travel to promote extortion. There are several reasons that make that clear. First, it's unlikely that a public official of a state is going to be a member of an organized criminal syndicate but in any event, his opportunity in the District Court's analysis to commit extortion in the common law ancient sense derives from his position as a public officer within the state. And therefore, he is not the type of individual who is unlikely to be amenable to investigation and prosecution by the local authorities.
Potter Stewart: In reading your -- in reading the briefs of this case, I was impressed by the -- negatively impressed by the seeming lack of legislative history bearing really a very explicitly on this question is -- and I assume there is not, is that correct?
Philip A. Lacovara: Yes, the Senate or House hearings do not reveal any specific focus on the question of what extortion was meant. However, I think it is significant that in the course of wending its way through Congress, this Bill was sought to be amended by the House in a way in which I think will illustrate the actual intent and focus that Congress had in using the term extortion. As I mentioned, the unlawful activities are defined to mean four illegal business operations as well extortion, bribery, and arson. The House Committee subsequently ratified by the full House tried to limit extortion and bribery to offenses committed in connection with the illegal businesses otherwise defined in the statute. The Department of Justice vigorously objected, the Department of Justice had sponsored this measure. The Department vigorously objected to that amendment and wrote to Chairman Celler of the House Committee that this amendment would eliminate from the purview of the statute extortions which were unrelated to the other business enterprises mentioned in the statute but which were and had historically been major forms of extortion perpetuated by organized crime and this letter from the Justice Department explicitly mentioned that such forms of extortion practice by organized crime include shakedown rackets, shylocking or the charging of usurious interests on loans, and labor extortion.
Byron R. White: Where is that -- what part of the brief?
Philip A. Lacovara: Letter is not in the brief. It's quoted --
Byron R. White: Reply brief.
Philip A. Lacovara: In the record? No, there was -- this case arises on dismissal of an indictment. There's no record.
Byron R. White: There's no record.
Philip A. Lacovara: The -- it is quoted in a law review article which we cite the Palner article in Volume 28 of the Brooklyn Law Review. It apparently was not published as part of the hearings or the committee reports because it was submitted after the reports had been printed by the various committees. All that we have is the Conference Report which merely states the conclusion that the Senate had agreed to the House insistence.
Byron R. White: Do those records do have (Inaudible)?
Philip A. Lacovara: The article was written by an attorney of the Department of Justice. I realize that may seem self-serving. We have no reason to doubt his good faith but that is the only place that --
Byron R. White: But where did he get it from?
Philip A. Lacovara: Apparently, I think that's --
Byron R. White: Can you get it again? If you want to use a letter like that, you must find it in the department's files.
Philip A. Lacovara: We -- I'm sure we can obtain the copy of that letter and submit it if the Court wishes to see it, if the Court wishes to see the full letter.
Byron R. White: Well I'd be happy to look at it, if you want us to look at any of it, I would think you would furnish the whole record.
Philip A. Lacovara: Very fine, I'll make final arrangements to do that. But it was in that context that the conference committees deleted the limiting language and restored the bill to its fuller scope, we don't rely solely on that one isolated and perhaps not terribly accessible piece of legislative history. Our basic argument as we went to in great length in the brief is that the background of the legislation shows that we're dealing with the types of activity engaged in by organized crime syndicates and public officer exactions are not a principal form of this activity. The other terms used in the statute also are clearly used in their generic sense. The term gambling or narcotics violations clearly doesn't and as the hearings themselves will show, it does not point only to a section of a state law which is captioned gambling or narcotic violations. This is an effort by Congress to refer us to categories of crime which if made unlawful by the state where the activity is going to be conducted.
Potter Stewart: Well now, extortion is linked here with bribery and bribery involves by definition public officers, doesn't it?
Philip A. Lacovara: Yes. That I think underscores the soundness of our position because under the District Court's approach, the use of those two terms side by side in the statute would make one of them superfluous in at least a third to a quarter of the states.
Potter Stewart: I don't understand that, was arson -- was arson added later?
Philip A. Lacovara: Arson was added in 1965.
Potter Stewart: The original -- the original language was extortion or bribery.
Philip A. Lacovara: That's right.
Byron R. White: In any event which is the brief to the letter you and I were discussing?
Philip A. Lacovara: Except for the citation in the -- of the law review article, there is none.
Earl Warren: We'll recess now, Mr. Lacovara, you may continue your argument.
Philip A. Lacovara: Thank you Mr. Chief Justice. I'd like to resume by returning to the point that Mr. Justice Stewart raised in his question noting the relative sparseness of the legislative history on the question of what Congress understood by the term extortion. I began to respond to the question by suggesting that since Congress dealt in a clause in which it uses the term extortion, with another offense which it termed bribery that the District Court's analysis would in Pennsylvania and about at least seven and perhaps many more states made one of the other of these two terms redundant because in Pennsylvania, the crime caption extortion is simply a form of bribery. That I think is not the limit of the fair inferences that can be drawn from the legislative history. I mentioned earlier that this legislation was considered along with the package of other measures that have been submitted in 1961 to deal with the subject of organized crime. Two other statutes which were submitted and being considered by Congress of the very same time, the hearings in both the House and the Senate were held on a series of measures and two of the bills that were before Congress at the time, used the term extortion in the sense that we suggest that Congress understood in passage of the Travel Act. The first was a measure to amend and expand the Fugitive Felon Act which at the time was limited only to those who had fled from states to avoid prosecution for certain defined felonies, certain enumerated felonies, one of which was extortion under -- by threat of violence. Another one of the measures that Congress was considering at the very time that it had Travel Act's terms before it was a proposal to provide for a grant of immunity in situations where there was an arguable violation of either the Labor Management Relations Act or the Hobbs Act which punished opposite sides of the same coin. The Hobbs Act punishes extortion presumably covering labor extortion and the 1960 --1947 Labor Act makes it an offense for an employer to give money or thing of value to a union official apart from his wages. So that there was before Congress at the time it was considering the Travel Act two pieces of legislation which used the term extortion in the precised generic sense of a coercive exaction under threat or force or accusation that had been used to underlie the earlier measures.
Earl Warren: Am I correct in my belief that nowhere in the statutes under consideration did Congress use the word blackmail?
Philip A. Lacovara: That is correct sir. That's the source of the difficulty. We have suggested on a related alternative argument that blackmail has for a hundred years or more have been considered a synonym for extortion and indeed the Pennsylvania courts and the Pennsylvania legislature used these terms interchangeably and in cases which the District Court saw fit to reject as ill considered, the Pennsylvania State Courts have in fact sustained indictments drawn under the blackmail statute's alleged in the instant indictments even though those indictments in the State Courts charged extortion by accusation of heinous crime rather than blackmail as the statute has captioned.
Earl Warren: Have you made any study to determine how many states consider the facts in this case as being extortion?
Philip A. Lacovara: Yes. In our appendix to our brief, Mr. Chief Justice, we set forth that there are at least 13 states which punish this form of conduct under a blackmail statute and at least seven of those states, extortion is a separately defined offense but it relates to the common law form of extortion. Now, in it, we also set forth that there are other classifications of extortion at conduct in other states, robbery, threats, and menaces. In a number of those other states, similarly, there is a crime expressly called extortion that does relate either to the public officer exaction or to some other anachronistic, we might say, notions of extortion in five or six states, the only offense called extortion is the charging by a Railroad company of an unfair tariff and presumably under the District Court's mechanical analysis, the only offenses that would be reached by the Travel Act in those states would be the submission by mail of a bill by a railroad company of an inflated charge. That is not in any way related to the organized crime focus of this measure. We did not collect in our appendix all of the possible permutations of relating the categorization of the statutes. You'll -- you will notice Mr. Chief Justice that the last category on page 30 and 31 of our brief lists statutes which make some mention in their caption of extortion. They -- some of them are however hybrids like fear used to extort or larceny by extortion. In some of those states, there is a crime caption simply extortion which is the public officer exaction. How the District Court would deal with these we can't imagine but this confirms we believe that we should be looking not to labels but to substance in interpreting the statute. The focus of the congressional concern in this area was with the type of activity which years of investigation had shown organized crime syndicates customarily resorted to in maulting their profits. They had not be shown and no one has yet suggested not even the District Court that acceptance of unlawful fees is a traditional form of organized crime. We consider rather that Congress used the term extortion as it used the other terms in the statute in its generic sense as relating to a category of possibly unlawful conduct i.e. an attempt to obtain money or property from an individual by a threat either to commit injury upon him or his family or his property or to obtain some advantage or to accuse him of a heinous crime or some other indictable offense. The District Court supported its analysis by pointing to the language of the statute and to the undisputed congressional policy of respecting the variations in state criminal law definitions. Neither of these factors however supports the District Court's analysis. First, the language of the statute does not even say that it is an offense to travel in interstate commerce to engage in activity in violation of extortion laws of the state. We might have a somewhat graver problem in accepting the government's construction if that were the usage but we have instead an act which punishes interstate commerce to promote extortion in violation of the laws of state in which committed. We suggest, this is quite susceptible and is infact of the construction and is in fact the intended construction of meaning that Congress was concerned about a category of activity and so long as that activity, that type of activity is actually made unlawful under the laws of the state in which the activity is committed. It is reached by this federal statute. Similarly, the congressional awareness that the contours of criminal activity will vary from state to state even within a particular type of activity, in no way suggests that the label that the particular state happens to affix in outlawing some forms of that activity should rigidly control the interpretation of this federal statute. The exchanges in the legislative history relied on by the District Court related to gambling, it was expressly recognized that for several reasons, an individual who operated a lawful gambling business in Nevada would not be in violation of this statute if he traveled to promote that activity. Now, the District Court somehow extrapolated from that that Congress intended that the definition of the terms used in the federal statute should track closely their legal understanding under state law. The cited passage in no way supports that no one either on the committee or any of the witnesses testifying indicated that whether or not the gambler, the Las Vegas gambler's travel was lawful was going to turn on whether or not his activities were dealt with under the statute talking of gambling. It was assumed throughout the legislative history that even if the state had a statute outlawing a lottery under the statute gambling and outlawed book making separately under a statute entitled book making. A bookmaker who travels in interstate commerce would still be in violation of the statute.
Speaker: Is this the first time that's the question has arisen in the District Court?
Philip A. Lacovara: Yes, there have been other prosecutions under the extortion branch of this statute including some for extortion of conduct engaged in, in states which punish only blackmail, or punish a crime called blackmail and which have instead under the heading extortion the public officer exaction case conduct. There's a reported decision to that effect, United States versus Hughes in 385 F.2nd where the extortion was conducted in North Carolina which is one of the states listed in our blackmail list and which also has an extortion statute similar to that in Pennsylvania. There was no challenge in that statute to the reach of the extortion term of this legislation.
Hugo L. Black: When was the law passed?
Philip A. Lacovara: This Act was passed in 1961. This is another argument that we believe supports our construction even though concededly the legislative history is not expressed on the question of how Congress defined or understood the term. When Congress legislates on a criminal subject in the 1960s, we think it highly desirable that it be taken to be using terms in their common place everyday sense because it is this sense which the average man of ordinary intelligence who must gauge his conduct by the measure should be held to understand it. And as we've seen recent pieces of federal legislations as well as the Pennsylvania judicial and legislative treatment and the scholarly opinions cited in our brief all illustrate that today the 1960s extortion does not mean an exaction by a public official, the mere acceptance of an unauthorized fee even on the absence of any coercion. It means rather an attempt to obtain something of value from the individual by making a threat to do some injury to him or to his reputation.
Hugo L. Black: Does it not make the statute rather vague --
Philip A. Lacovara: No, sir.
Hugo L. Black: If you do not confine it to the crime which is named in the state?
Philip A. Lacovara: No not necessarily. If we look to Pennsylvania law to see what a man of ordinary intelligence in Pennsylvania would have had understood this conduct to proscribe, we submit, he would have been on fair notice that the federal statute was prohibiting his conduct even though the conduct is termed blackmail on Pennsylvania. I've already referred to the judicial decisions in Pennsylvania which it sustained extortion indictments under blackmail statutes. The blackmail statutes themselves used the term whoever with intent to extort makes certain types of threats. If the individual consulted the general index to the Pennsylvania statues to see what extortion and violation of state laws meant, one of the earliest listing under the general heading extortion is a reference is a to the blackmail statutes. There is a cross-reference under the extortion statute in Pennsylvania which says for extortions by others than public officers see the sections involved in this case. So I think not only do we have the ordinary understanding of the average citizen in Pennsylvania and elsewhere in the English speaking world that extortion means a coercive attempt to obtain property under threat but we have expressed authority that Pennsylvania regards this form of conduct as extortion and we see no notice or vagueness problems in the statute.
Hugo L. Black: Do you think your argument runs in a way of foul of the general principle that criminal statutes must be strictly construed?
Philip A. Lacovara: Well, in -- we accept the general validity of that proposition. We don't think it cuts against us here. We want this statute strictly construed in accordance with the fair meaning of its terms. We're not trying to expand the notion of extortion beyond what it commonly means. We're not trying to reach into the remote extensions of what may be extortionate. It's also perhaps notable to point out that as the District Court recognized, this conduct is malum in se. It is clearly a violation of Pennsylvania law so we don't have the situation where the individual is completely blameless or not depending on the meaning of this federal statute. His guilt under the federal statute may turn on what extortion means but we're not trying to use a god out of the air to impose criminal liability on otherwise innocent conduct. So we think that there's no offense here against the general maxim about construing criminal statute. I would like to save any remaining time for rebuttal if the Court has no questions.
Earl Warren: You may.
Philip A. Lacovara: Thank you.
Earl Warren: Mr. Fitzpatrick.
F. Emmett Fitzpatrick, Jr.: Mr. Chief Justice, may it please the Court. The law of Pennsylvania in its definition of extortion is not a new or unusual definition. It tracks very closely if I may borrow a term from the District Court's opinion, the common law definition of extortion and it requires without getting any more detailed than is necessary for purposes of this argument that at least one of the parties involved in an exchange of money to do something must be an individual who is a public officer and a public officer who has something to do with the reason why the money is passed. This statute was applied in Pennsylvania to prosecute when they are discovered officials who have breached their duty, their sacred trust to the public and have accepted a bribe. It is not as it has been characterized by the Government in its brief, in its oral argument merely a statute that involves excessive fees. The excessive fee mentioned is solely to exclude the defense that while I didn't know I could charge $2.50 for $1.50 gold license. This is the statute that Pennsylvania uses when it is necessary to prosecute corrupt officials. The crime of bribery in Pennsylvania is further defined by the legislature and is set down in the Penal Code of 1939 and that involves a few different elements when a bribe must be given or accepted by certain enumerated officials no longer just an undefined quest of public officials and it has to do with specific actions that they are supposed to take. I might say that by defining extortion I know and by defining bribery I assume and by all of its definitions of common law crimes Pennsylvania has not limited violations of these crimes to those things which are contained in the statute. There are cases dealing with what Pennsylvania calls common law extortion and this case is quite frankly are generally in the area of who should be a public official. The common law definition of public official has for some reason by the Courts been granted a wider sphere than the statutory definition but in no instance, in the Commonwealth of Pennsylvania is activity which takes place between two individuals who are not public officials, who were not named in the statute whereby one says to the other, “If you don't give me a certain amount of money, I will expose you or I will beat you up or I will print something in the newspaper about you.” In no instance is this particular type of conduct prosecutable either by extortion or under the bribery statute.
Earl Warren: Suppose this prosecution have taken place in say in California where this fact situation would be covered by the extortion statute assuming that it does, I believe it does, would this conviction stand?
F. Emmett Fitzpatrick, Jr.: Assuming the facts as Your Honor has stated them and I certainly defer to your judgment in the area, I think that it would, there is no question in my mind.
Earl Warren: I don't assert that it would that's just --
F. Emmett Fitzpatrick, Jr.: No, I will assert that it would. Yes, I will admit and in other states it could result in a conviction if their statute were drawn differently.
Earl Warren: Well then, wouldn't that indicate that Congress intended to proscribe this kind of conduct by this statute?
F. Emmett Fitzpatrick, Jr.: No sir, it would not. And I say that most respectfully.
Earl Warren: Yes of course.
F. Emmett Fitzpatrick, Jr.: I think really that the prosecution that you have just mentioned and the fact that a successful prosecution may be obtained in California under these same set of facts was not within the intention with the purview of the individuals who drew the Travel Act. I think this is a bonus that frankly, they never considered for reasons that I would like to set forth. In Pennsylvania, there is absolutely no question but that the set of circumstances described in the bill of indictment could not have resulted in a conviction for the crime of extortion in violation of the laws of Pennsylvania. The United States Government admits this in this instance because the Government when it drew the bills of indictment as set forth in the appendix charges in the to which section that the defendants have committed not the crime of extortion as the Act requires but two different crimes of blackmail in Pennsylvania. And from this jumping off point with the understanding that under no circumstances could these defendants had been convicted in Pennsylvania of the crime of extortion or bribery, I would like to adopt for just one moment if I may the example used by my brother at the bar, the average man. Now here comes the average man and have used the Travel Act of 1961 which is an Act in its philosophical content which is designed to do many things to straighten out the country. But of course, we're limited to what it says and let us assume for one moment hypothetically because we cannot counsel people to commit crimes and very seldom can we give them much good counsel after they have committed it. But let's assume running through the mind of the average man who was supposed to understand the law and to whom the known certainty of the law is the safety of all whether or not if he takes time to examine it, he is able to conclude clearly and beyond any doubt and without any vagueness that his intended or past conduct is a violation of the Travel Act.
Thurgood Marshall: Mr. Fitzpatrick, how about the average congressman, do you think when he put this word extortion in there he did or did not intend to cover this specific act?
F. Emmett Fitzpatrick, Jr.: I frankly sir do not think that the average congressman ever even thought of this particular type of activity.
Thurgood Marshall: Do you think that it's unreasonable to think that Congress intended extortion to mean what it was generally understood to cover in 1961?
F. Emmett Fitzpatrick, Jr.: Yes sir, I do. As defined by the Government in this instance.
Thurgood Marshall: Do you believe that in 1961, the word extortion in this generic sense in his understanding at that time was broad enough to cover the facts in this indictment?
F. Emmett Fitzpatrick, Jr.: I will have to admit that. I will have to admit that under one definition it was. But may I respectfully suggest that the key term here is not extortion. If extortion were left alone in this statute, I would not be before this Court. Extortion was not left alone in this statute. Extortion was further modified by a term “In violation of the laws of the state wherein committed.” And at the time this was passed, the Travel Act, the United States Congress had to be aware of a fact set forth in the Government's brief that there are at least 17 of the 50 states that define extortion as Pennsylvania does.
Thurgood Marshall: Do you say -- can you point to any of the legislative history the said Congress was aware of that fact?
F. Emmett Fitzpatrick, Jr.: No sir, I cannot. There is a complete negation of the legislative history in this area. We must arrive --
Thurgood Marshall: But you don't believe that the general understanding at that time would have covered this, the word extortion?
F. Emmett Fitzpatrick, Jr.: I do feel that if the word extortion were not modified by Congress was in violation of the laws of the state it would have covered this circumstance. I do further feel that if Congress had specifically intended these or this particular type of activity to be covered under this Act, he could have defined extortion as it did in the Hobbs Act. It set forth an entire descriptive term of exactly what the conduct was that it was proscribing. I further suggest fully -- respectfully point out to this Court or urge upon it, that by not doing that and that by limiting the term extortion by the words “In violation of the laws of the state” Congress meant that what was the result was not uniformity but the diversion or the divisiveness that was already present in the United States among the various states. Now why? The only reason that I can suggest again by hindsight and I suppose this is the greatest scheme of imagination that a lawyer can play is that extortion and bribery have a common bond and the common bond is governmental corruption. In either one of those, the forces of local government have to be corrupted. Let us back off just one step. Congress did not by the passage of the Travel Act intend to expand either the definition of crime or the jurisdiction of the United States Government or anything else. The Travel Act is wedded body and soul to state law. If the state law does not declare it to be a crime regardless of the conduct, it is not a crime under the Travel Act.
Earl Warren: So, what bothers me and what prompted my question was this and I know in California and maybe in other states too many years ago, there was great confusion as to what would constitute larceny as distinguished from larceny by trick and device and from obtaining money under false pretenses and it confused the courts, it confused everyone so they combined all three and called it theft. Now, would you say if the Government had said larceny in here that in those states where they had called it theft instead of larceny that it would not be intended to apply?
F. Emmett Fitzpatrick, Jr.: No sir, I would not because --
Earl Warren: Well, what is the distinction between that and your case?
F. Emmett Fitzpatrick, Jr.: The distinction there sir is that what the Government is doing is picking out an element which is a part and a clear part of a larger crime that is theft. Larceny is one of three sections of theft according to the definition presently before us. In this instance, extortion is not that and this is not extortionate conduct. I respectfully suggest that there is no clearer way that Congress could have said extortion using the word in its technical sense in the Commonwealth of Pennsylvania in violation of the laws of the state. If extortion were part of a larger overall generic conglomeration of bribery and extortion and blackmail, and Congress had used the word, I would admit as I do in the hypothetical posed by Your Honor that they would have been guilty under this particular section but that is not the case here.
Earl Warren: Well, I understand here that from this brief, the Government that there's some 25 states I can't count them all but I think it's about that where the facts in this case would be covered by the word extortion.
F. Emmett Fitzpatrick, Jr.: That is correct sir.
Earl Warren: Now, in most states, you say that this law would be applicable.
F. Emmett Fitzpatrick, Jr.: That is correct. And in 17, it would not.
Earl Warren: Even though the same conduct --
F. Emmett Fitzpatrick, Jr.: The same conduct.
Earl Warren: Wasn't criminal in those states.
F. Emmett Fitzpatrick, Jr.: Correct and I think really that we have faced the problem but the problem is precisely this. We cannot assume Congress did not know it. We have to assume that Congress did know it and did what it did not to provide uniformity but to take into account the existing law in the states.
Earl Warren: Well, what was the purpose of Congress in passing this law? Wasn't it to stop crime that in commerce?
F. Emmett Fitzpatrick, Jr.: I think that certainly is true Your Honor. And I think that that is the label or the intention or the purpose behind almost everything. But now, let us be very realistic for a moment although no one knows much about organized crime in this country except what we read in law review articles and life magazine. But nowhere --
Earl Warren: No body has a broader language than that.
F. Emmett Fitzpatrick, Jr.: There are some law review articles that go perhaps a bit beyond that sir and some other treatises. One, I beg to point out that the President's Crime Commission at least the last one, had I understand a very intimate knowledge of the workings of one smaller city in Pennsylvania when it mentioned the city by the name of Wyncote. I understand that was a label to apply to a city in Pennsylvania so we cannot assume that they were completely ignorant of them. But really what they're attempting to cut-off is the income at least as I have heard it defined here from people who are far more expert in this area than I. From organized crime, I have never heard of two private citizens who have a relationship such as exists here where one says to the other, if you do not pay me $500.00 or $5,000.00, I will accuse you of being a homosexual. I have never heard of this being a part of organized crime or putting a dollar in the organized crime comforts. On the other hand --
Earl Warren: But there are others who have heard of that and I am one of them.
F. Emmett Fitzpatrick, Jr.: There may very well be, sir.
Earl Warren: I'm one of them -- the -- that's been an instrument of interstate crime for ages. This very situation that you're talking about where people will lure someone in to a compromising position and then threaten them that if they don't -- if they don't come through some money that they're going to prosecute them for a crime and assuming that they are police officers themselves, when they are not police officers. That's just as common as this claim.
F. Emmett Fitzpatrick, Jr.: I wouldn't deny that sir.
Earl Warren: Beg your pardon?
F. Emmett Fitzpatrick, Jr.: I would not deny that. But I would say most respectfully that what I have not heard of is that the money when it is paid going to organized crime. I have never heard of this particular scheme which I certainly admit exists being a tool of organized crime and I respectfully suggest to you that a clear reading of this Act indicates only one thing, and that is that Congress never heard of it either even when it passed this Act. And when it included --
Thurgood Marshall: I respectfully suggest that you should read some of the material that was given to Congress before this Bill was passed.
F. Emmett Fitzpatrick, Jr.: That may well be sir.
Thurgood Marshall: From an agency that does know something about organized crime.
F. Emmett Fitzpatrick, Jr.: That may --
Thurgood Marshall: The United States Department of Justice.
F. Emmett Fitzpatrick, Jr.: Well then, may I respectfully suggest that --
Thurgood Marshall: Don't go around to your law review article once try there.
F. Emmett Fitzpatrick, Jr.: May I respectfully suggest sir that if Congress did have this knowledge --
Thurgood Marshall: You going to say that it's not in there?
F. Emmett Fitzpatrick, Jr.: That if Congress did have this knowledge they did not include it within the statute, if this really was an important factor in Congres's mind, they did a very poor job of including it within the statute.
Thurgood Marshall: Say -- I suppose Congress should have said that if somebody holds somebody up and threatens to expose them unless they pay money, that will be a crime.
F. Emmett Fitzpatrick, Jr.: Congress has done it, may I respectfully say sir, in the Hobbs Act which they passed just a short time before.
Thurgood Marshall: We're talking about this one.
F. Emmett Fitzpatrick, Jr.: I understand that. All I am saying is that Congress had the right, the power and the ability to define extortion.
Thurgood Marshall: If you admit that -- you admit that extortion meant the same thing to you that I think it meant to Congress, you admit that.
F. Emmett Fitzpatrick, Jr.: Extortion does. There's no question about it. Extortion in its widest terms includes everything.
Thurgood Marshall: But you said that in order to make a National Law, Congress also intended that it should cover all the vagrancies of all of the 50 -- 48 state statutes.
F. Emmett Fitzpatrick, Jr.: When you say cover, if you may take into account that they are different and recognize that difference in the Act, yes I do admit that.
Thurgood Marshall: do you --
F. Emmett Fitzpatrick, Jr.: If you're asking me if I feel that Congress meant by this term extortion, to include just generally extortionate conduct, no sir I do not. I think that they intended. They recognized the problem that there were different definitions in different states and they wanted to let them alone. Now, they cover in all 50 states that type of extortionate conduct which deals with governmental officials. I know of no state that is exempt under the breakdown supplied by the Government or anyone else. In anyone of the 50 states, extortion certainly defines any act of crime by which a governmental official is corrupt and so does bribery. And what I am suggesting to this Court by hindsight that Congress intended to do was to ensure that Local Governments were able to cope with the problem and once having assured that to withdraw the Federal Government from the field of law enforcement in this area and really that makes us much sense as the Travel Act because the Travel Act does not create anything that is a new crime. The Travel Act merely says that if you travel in interstate commerce to commit a crime in violation of the law of the state, you have committed a separate federal offense. Now, in this instance, these people could very well have been arrested and prosecuted in the Commonwealth of Pennsylvania. As a matter of fact, I am informed that some of them were. Exactly who, when and where I do not know and it is outside of the record. But there is no reason in the world that these people could not be convicted of a crime, if indeed they committed it and if indeed the prosecution took place in effect or in accordance with the accepted rules of criminal procedure and recognize their rights. We are not saying that these people should walk the street. What we are doing is trying to define what Congress said in this Act. And I respectfully suggest that it makes just as much sense to believe that Congress intended to recognize that there were differences among the various states when it said in violation of the laws of the state wherein committed. And when it said in violation of the laws of the state, to me this means a little bit more than in definition of the laws of the state. We may have other procedural problems built in within a state like the statute of limitations or even other things beyond the imagination, I think that Congress clearly intended when it said in violation of the laws of the state just that that if this was not a type of activity that was in violation of the laws of a state, it could not be an unlawful activity for purposes of this particular Act.
Hugo L. Black: Do you think that Congress could pass a law providing that any man who leaves one state to go into another and commit certain offenses or engage in certain conduct which is not a violation of the local law, Congress could make the other crime?
F. Emmett Fitzpatrick, Jr.: Yes, sir.
Hugo L. Black: Suppose it was a purely local crime, ordinarily treated as such?
F. Emmett Fitzpatrick, Jr.: I think that by virtue of the --
Hugo L. Black: Could the commerce clause be used for that purpose?
F. Emmett Fitzpatrick, Jr.: I'm sorry Mr. --
Hugo L. Black: Could the commerce clause be used for the purpose?
F. Emmett Fitzpatrick, Jr.: In my opinion, it could sir.
Hugo L. Black: While giving the Federal Government how to create crimes in states if the person had traveled in interstate commerce for the purpose of doing that, engaging in that conduct.
F. Emmett Fitzpatrick, Jr.: In my opinion, Congress could make a criminal law that Congress of the Federal Government could punish. I don't know that they could create a violation of the state law. I think that's another problem. I don't think that the defined conduct would necessarily be a violation of the law of New Jersey or Pennsylvania but it could in my opinion be violation of the Federal Law if Congress chose to do it. I think they've done that with the Hobbs Act. They have defined extortion to include the generally accepted term of extortion and they have provided criminal penalties therefore.
Hugo L. Black: (Inaudible)
F. Emmett Fitzpatrick, Jr.: Regardless of the laws of Pennsylvania. Now, in this instance, they did not do that and they said specifically that this is only a crime in those states where it is in violation of the laws of those states.
Hugo L. Black: What you're saying is when they could do the other and they say violate a particular thing that is a crime in the state, that you shouldn't read to do it in a more than that?
F. Emmett Fitzpatrick, Jr.: That is correct sir. That is exactly what I am saying here. I think that Congress had the ability and the power and the knowledge to broaden the statute to where we seem by hindsight today to feel that it will be more effective. But for some reason, they did not. I really hate to defend what they did because I know so little about it. I don't know what their intention was at the time. We have heard that there was an intention to water this down by saying that the extortion and the bribery should pertain only to gambling offenses and prostitution. And if there was an objection to this and that was removed but we really don't know what was in the mind of Congress when they passed it except by a clear reading of it. And the average man if I may return again to him who has to read these things I respectfully suggest could just as easily come to the conclusion that this type of conduct in Pennsylvania is not a violation of the Travel Act and the average could certainly do it --
Earl Warren: Violation of the laws of Pennsylvania.
F. Emmett Fitzpatrick, Jr.: Of violation of the laws of Pennsylvania, it clearly is and there is absolutely no question but that this complaint of conduct here was the violation of the laws of Pennsylvania. What this Court really has to decide is whether the Federal Government should punish it or Pennsylvania should punish. Assuming something in future, what I might respectfully point out to this Court that if the United States District Court judge could come to the conclusion that this is not a violation of the laws of Pennsylvania from reading it, so could our average man and really the vagueness provision in this instance if we're getting that far into it is something that violates basic rights. If Congress intended that extortion should mean extortionate conduct or covered these set of circumstances, they had the full power to do it. But they did not.
Potter Stewart: If you don't have the Hobbs Act cited in your brief.
F. Emmett Fitzpatrick, Jr.: The Hobbs Act sir is cited in the Court's opinion. I believe I do not have the page at the moment. I remember reading it, page 25 Mr. Lacovara tells me.
Hugo L. Black: Is that what's called the antitrust (Voice Overlap)?
F. Emmett Fitzpatrick, Jr.: The term extortion means the obtaining of property from another with his consent induced by wrongful use of action or a threatened force violence or fear or under collar of official right and that certainly if it were here, I would not have the pleasure of appearing before this Court.
Potter Stewart: And when was that enacted? You said it was--
F. Emmett Fitzpatrick, Jr.: I do not know independently, the courts speak of it as being an earlier but I do not know how much earlier than the Travel Act sir.
Potter Stewart: Alright, thank you.
F. Emmett Fitzpatrick, Jr.: I do not believe, I must disagree respectfully with my brother, when he tells the Court that the interpretation as imposed upon this Section by the United States District Court would seriously hamper the Government's attempt to wipe out interstate crime particularly organized crime. With all due respect, I once again say factually that I do not know and have not seen widely circulated at least that this particular type of extortion is at least as large a tool of organized crime as prostitution as gambling, as liquor law violations, as loan sharking really. And I think that what the Government is trying to do in this particular section of the Travel Act, in this one little section with the exception of arson which was added later, is to ensure that local law enforcement is able through non-corrupt officials to deal with these and with many other problems that would be outside this thing.
Byron R. White: What about loan sharking?
Byron R. White: Yes, sir.
Byron R. White: Could that be reached by this law?
F. Emmett Fitzpatrick, Jr.: I think it would, I think at least those sections of it sir that it have to deal with the violence, with the threatened violence of loan sharking would be reached by another section of the law.
Byron R. White: What?
F. Emmett Fitzpatrick, Jr.: The one that is not quoted widely herein, subsection 2 of Section 1952, “commit any crime of violence to further any unlawful activity.”
Potter Stewart: Yes, but unlawful activity as defined would not include loan sharking.
F. Emmett Fitzpatrick, Jr.: Would not include loan sharking, you're quite correct.
Potter Stewart: Unless it's extortionate.
F. Emmett Fitzpatrick, Jr.: I apologize.
Potter Stewart: Unless it was extortionate.
F. Emmett Fitzpatrick, Jr.: Well, therein lies a very difficult problem if a man owes a debt.
Potter Stewart: Well, it's a problem that's in this case.
F. Emmett Fitzpatrick, Jr.: Not necessarily if I could respectfully just for a moment and this had not --
Byron R. White: Well, you would admit I suppose that if the state law covered loan sharking as extortion, in a statute with a label extortion on it, could it then construe to include loan sharking.
F. Emmett Fitzpatrick, Jr.: Yes.
Byron R. White: You wouldn't have any problem.
F. Emmett Fitzpatrick, Jr.: No problem. But the state laws that deal with loan sharking do not do --
Byron R. White: Or if the state law used to and construe extortion, if he extorts a statute to cover A, B, C, D and E, and then they refined their statutes and they took out of the extortion -- out from under extortion, they called it loan sharking.
F. Emmett Fitzpatrick, Jr.: I would have no problem with that.
Byron R. White: Why wouldn't you? It isn't called extortion.
F. Emmett Fitzpatrick, Jr.: It was at time --
Byron R. White: It isn't extortion under -- illegal under state law according to your argument, is loan sharking illegal under state law?
F. Emmett Fitzpatrick, Jr.: Loan sharking is illegal under those sections of state law at least in Pennsylvania which have to do with the charging of unlawful interest. If a person loans money and it is repaid and the interest in Pennsylvania does not exceed 6% per annum, simple it is not loan sharking. There are of course numerous exceptions but the only vehicle that Pennsylvania has to deal with loan sharking has to do with the charging of excessive interest. And really it comes under our Banking Code. It is not in Pennsylvania a criminal offense.
Byron R. White: What --
F. Emmett Fitzpatrick, Jr.: Pardon me. It is not under the criminal code, it is a criminal offense.
Byron R. White: We got an opposite track with just a hypothetical case but I suppose your argue -- what you're making with the -- you would certainly stick to it if some state that used to include the loan sharking, shylocking or something under extortion suddenly had a specific statute applied to shylocking and there's no longer indictable or punishable under the extortion statute. It just -- they just said, we're going to split this out and make it a special offense.
F. Emmett Fitzpatrick, Jr.: I would have--
Byron R. White: And then wouldn't be extortion illegal under state law, would it?
F. Emmett Fitzpatrick, Jr.: It would not at that time sir but I would frankly have less problem with that I would with the Chief Justice's hypothetical were. This was part of a larger overall crime where you had a conglomeration of sections.
Byron R. White: The only reason it would be is because extortion in common understanding would cover situations like that where money is collected under a threat or violence.
F. Emmett Fitzpatrick, Jr.: Yes sir but in my opinion --
Byron R. White: That's precisely the Government's argument in this case.
F. Emmett Fitzpatrick, Jr.: Not as I understood it sir. As I understood the Government's argument in this case, it was that Congress intended this to include something broader than it said and we are not really dealing here with a loan sharking situation. We are dealing here with not an undefined area of crime either, if I might respectfully point out. We are dealing here with a specific violation of a law of Pennsylvania. The crime in Pennsylvania that was committed here was a blackmail by accusation of heinous crime. It is a specific statute in Pennsylvania. It is not an undefined thing that's used to be part of something else. It's a specific statute and it was never even in the common law included under the term of extortion. Now, extortion has certainly today expanded and I have to admit it and it can include almost anything that comes close to the area. I have to admit that too. What I cannot concede that Congress even though it recognized this as an average man, as a good lawyer, as a good legislative research man that Congress intended by the language that it used here to apply this definition of extortion. It could have done so, so easily in a number of other different ways but it did not. In this instance, it said in violation of the laws of the state and it had to mean something by that term. A limitation as it appears at least in this instance what that term had to mean something. If they had not put in violation of the laws of a state, once again I don't think I would be before this Court even though they had just used the term extortion. I don't think I would have gotten beyond the District Court with the argument if it were to be made at all.
Hugo L. Black: Suppose --
Potter Stewart: Excuse me, go ahead. Mr. Fitzpatrick you were -- you were calling our attention to the practical problems with which Congress presumably was attempting to deal that is the actual activities of which are said to create large income for organized crime in this country and pointed out that this particular activity well-known is not one that does so as compared to gambling and other things but while we're on that practical -- on that practical level, a person would never travel just realistically in interstate commerce for the purpose of extortion in the limited sense that Pennsylvania uses it whether a police officer in Pennsylvania doesn't go out and travel to New York. He has to operate in Pennsylvania, doesn't he?
F. Emmett Fitzpatrick, Jr.: Well --
Potter Stewart: Be meaningless if it were --
F. Emmett Fitzpatrick, Jr.: It unless sir, the rare circumstances that it would go to New York for the pay off or that some would come to Philadelphia to pay off a judge or a legislator or the chief of police.
Potter Stewart: But generally the leverage that a law officer has to extort is right within his own state using his office?
F. Emmett Fitzpatrick, Jr.: That is correct.
Potter Stewart: Using his state office.
F. Emmett Fitzpatrick, Jr.: Yes, that is correct.
Potter Stewart: Or local office.
F. Emmett Fitzpatrick, Jr.: That is correct.
Potter Stewart: And so --
F. Emmett Fitzpatrick, Jr.: But there could be circumstances particularly in a city like Philadelphia that as bad as I seen. In one instance here, the individuals were accused of coming from Camden which is of course across the river now. One of these defendants lived in Camden and in a circumstance like that, it might very well be that someone who had a gambling operation in Philadelphia might live in Camden and might pay off a police official and we might get them under the provisions under this Act in this fashion. I see my time is --
Earl Warren: I was just looking at what the late Robert Kennedy had to say. He was Attorney General at that time and his interpretation of this law is that this law has a broadest scope and the greatest potential of the new anti-racketeering statutes. Now, wouldn't that indicate to you that they meant the term extortion not be a limited term but a term that would incorporate a meaning of extortion as it is known in any part of the United States?
F. Emmett Fitzpatrick, Jr.: I once again must agree that the term extortion does do that to me sir. I cannot stand before this Court and take an unreasonable position. But I once again must point out that in my opinion, the limiting phrase in violation of the laws of the state must mean something also. And if it does in Pennsylvania at least, it limits it not to this kind of activity. And what I respectfully point out that in the opinion of the Court that I just read this morning, I believe they quoted Professor Wexler who had almost the opposite to say about this statute that it was not very meaningful and that it did not reach out, it did not do the things that some of its proponents have thought that it should do. The purpose of it I think is noble and I have no objection to that and I really have no objection to those sections of it which are clear but I cannot in my own mind rationalize that Congress intended to do that which that it could have done so easily by the language that it used in this instance. Perhaps Congress did not intend it. And in that vagueness I think is the reason why the District Court felt that it should fall and the reason why I urge upon you that you sustain the action the District Court in this matter.
Hugo L. Black: May I ask you a question about your loan shark illustration? Suppose that a law would be passed by Congress stating anyone who goes from Pennsylvania to Montana for the purpose of lending money to individuals that are less at more than 3% interest shall be guilty of a federal crime. What would you say about that?
Hugo L. Black: Well, I would say I'm afraid does not come as the result of accumulated experience over the years. But my frank, of course, back opinion would be that the Federal Government could in one fashion or another justify such a law.
Hugo L. Black: Well, would argue then like you're arguing here that they didn't intend to do a thing like that?
F. Emmett Fitzpatrick, Jr.: No sir, I would not. I would clearly not if the Congress here had intended my opinion to outlaw extortionate activity.
Hugo L. Black: Well, do you think Congress would pass a law trying to regulate the interest rate in Montana --
F. Emmett Fitzpatrick, Jr.: I think --
Hugo L. Black: Put down its law at 3%.
F. Emmett Fitzpatrick, Jr.: Whether they would get a 3% or not is something I really don't want to get involved with the bankers over because I know nothing about it. But I do think that if Congress felt that it would aid in its drive on organized crime or aid some other noble purpose, they would pass such a statute. Now, that again would depend upon the circumstances at the time. What I should hope that if they did pass that they would not put in the language which is so vague and confusing as they have in this case that they would say exactly what they meant. Thank you.
Earl Warren: Thank you Mr.
Philip A. Lacovara: Mr. Justice White, I'm not sure what the result of the colloquy was between counsel and you on the question of possible effect of re-labeling or separating out provisions that at one time were called extortion. But on page 22 of our brief I'd like to call your attention to the fact that up until 1939, the homosexual extortion conduct presently termed blackmail was in fact called extortion by threats to accuse of an infamous crime. Mr. Chief Justice, you also mentioned an anomaly that would be caused by accepting the appellee's position that is the statute would not apply to conduct unlawful in Pennsylvania but would apply to conduct unlawful in California simply because the difference in the labels atop the statutes. We needn't speculate about that. There's currently before the Court on petition for writ of certiorari raising other issues, Pyne versus United States, number 507 which does involve identical type of homosexual extortion statute -- identical type of homosexual extortion scheme involved here. But there, the gang members went from Chicago West to Utah which calls the conduct extortion rather than East to Pennsylvania. But we submit that there's no reason for thinking Congress didn't wish to reach both types of --