United States v. Donald Lavern Culbert

548 F.2d 1355 UNITED STATES of America, Appellee, v. Donald Lavern CULBERT, Appellant. No. 76-1860. United States Court of Appeals, Ninth Circuit. Feb. 23, 1977. Frank O. Bell, argued, Asst. Federal Public Defender, San Francisco, Cal., for appellant. John Lockie, Asst. U. S. Atty., San Francisco, Cal., Arthur F. Norton, argued, Atty., U. S. Dept. of Justice, Washington, D. C., for appellee. Appeal from the United States District Court for the Northern District of California. Before ELY, CARTER and GOODWIN, Circuit Judges. OPINION PER CURIAM: 1 Culbert was convicted, in a jury trial, of two offenses charged in an indictment consisting of two Counts. Count One charged an attempted bank robbery in violation of 18 U.S.C. § 2113 (a) (Supp.1976). Count Two charged an attempt to obstruct, delay, and affect commerce by robbery, extortion, and threats of physical violence, in violation of 18 U.S.C. § 1951 (1970) (hereinafter the "Hobbs Act" or "Act"). We reverse. 2 Section 2113(a), germane to the first Count, specifies, as one of the elements of the pertinent offense, a taking or attempted taking "from the person or presence of another." The prosecution's evidence was to the…

concurring and dissenting:

I concur in the reversal of Count 1 (Robbery), but dissent from the reversal of Count 2 (Extortion).

The plain and unambiguous language of the Hobbs Act ( 18 U.S.C. § 1951 ) prohibits any robbery or extortion or attempt to rob or extort which has the requisite effect on commerce. In Stirone v. United States, 361 U.S. 212 , 80 S.Ct. 270 , 4 L.Ed.2d 252 (1960), the Supreme Court noted:

I must disagree with the majority, therefore, in their conclusion that the Hobbs Act is limited to “racketeering.”

Even the legislative history of the Act does not so limit its coverage. Representative Hobbs described the purpose of his bill this way:

See also United States v. Green, 350 U.S. 415, 419 , 76 S.Ct. 522 , 100 L.Ed. 494 (1956) (amended Act designed to avoid narrow judicial construction of prior Act).

This court has previously recognized the broad reach of the Hobbs Act. In Carbo v. United States, 314 F.2d 718 (9 Cir. 1963), cert. denied, 377 U.S. 953 , 84 S.Ct. 1625 , 12 L.Ed.2d 498 (1964), the court stated:

This court also has previously affirmed, without discussion of the reach of the Act, the conviction of a person under the Hobbs Act for an attempted…

Culbert was convicted, in a jury trial, of two offenses charged in an indictment consisting of two Counts. Count One charged an attempted bank robbery in violation of 18 U.S.C. § 2113 (a) (Supp.1976). Count Two charged an attempt to obstruct, delay, and affect commerce by robbery, extortion, and threats of physical violence, in violation of 18 U.S.C. § 1951 (1970) (hereinafter the “Hobbs Act” or “Act”). We reverse.

Section 2113(a), germane to the first Count, specifies, as one of the elements of the pertinent offense, a taking or attempted taking “from the person or presence of another.” The prosecution’s evidence was to the effect that Culbert and an accomplice attempted to extort $100,000 from a bank by means of telephoned threats of physical violence. The instructions given to the bank’s president were that he should drop the money at a specified site and then return to the bank. Thus, the criminal plan did not contemplate a trespassory taking “from the person or presence of” the bank president or any other person. Absent proof of that essential element of the offense charged in Count One, the judgment of conviction of the offense alleged in that Count must…