BROWNING, Circuit Judge:
This appeal concerns the scope of the Hobbs Act, 18 U.S.C. § 1951,
Rudy LaBinia and three accomplices kidnapped the wife and son of the manager of a branch of the First Hawaiian Bank. In a telephone call to the manager, LaBinia and his associates threatened to kill their hostages unless the manager left $400,000 for them at a specified vacant gas station. The plot was foiled by federal agents.
LaBinia ultimately pleaded guilty to a charge under 18 U.S.C. § 1951(a) of affecting commerce by attempting to extort funds from the bank. Some seventeen months after sentencing, the district court granted LaBinia's motion under 28 U.S.C. § 2255 and Fed.R.Crim.P. 32(d) to withdraw his guilty plea. The district court also set aside the judgment and sentence and, in a separate order, dismissed the indictment. The United States appeals from both orders.
LaBinia's co-defendant, Edward Alberti, was also charged with violating 18 U.S.C. § 1951(a), and was tried and convicted. His conviction was reversed by this court in United States v. Alberti, 558 F.2d 1038 (9th Cir. 1977) (unpublished memorandum).
The district court dismissed LaBinia's indictment on the ground that LaBinia was not chargeable under the Hobbs Act because of this court's holding in Alberti that the Hobbs Act does not reach attempted bank extortion. Alberti, in turn, was based solely on our holding in United States v. Snell, 550 F.2d 515 (9th Cir. 1977), that "the federal bank theft statute, 18 U.S.C. § 2113,
In Snell, this court excluded bank-robbery extortion from the coverage of the Hobbs Act, although the language of the statute embraces all persons who "in any way or degree ... affect commerce ... by robbery or extortion." We reasoned that the comprehensive categorizations of the Bank Robbery Act, 18 U.S.C. § 2113, indicated that the statute was intended by Congress to provide an exclusive remedy. Because the statute "subdivides the offense of bank robbery into a series of continuing steps" and "provides for penalties in increasing increments corresponding to the aggravated nature of the theft," it was thought to preempt prosecution under other statutes. 550 F.2d at 517. We concluded that because the accused in Snell "were chargeable under the bank robbery statute, they were not legally chargeable under the Hobbs Act." 550 F.2d at 518. "In respect to bank robbery," we said, "we are unpersuaded that the Hobbs Act is designed to serve interests that the federal bank robbery scheme does not already purport to serve." Id. at 518 n.6. Our premise in Snell was that a congressional intention that the plain language of the Hobbs Act not be taken at face value is to be implied from the structure of the Bank Theft Act.
The Supreme Court explicitly rejected this approach to the construction of the Hobbs Act in United States v. Culbert, supra. In Culbert, the Ninth Circuit, following the Sixth,
435 U.S. at 377-78, 98 S.Ct. at 1116 (footnote omitted).
Members of Congress understood that enactment of the Hobbs Act would lead to some duplication. Because the Hobbs Act predates the federal Bank Robbery Act, duplication of federal robbery statutes was not addressed, but "[t]he legislative debates are replete with statements that the conduct punishable under the Hobbs Act was already punishable under state robbery and extortion statutes." 435 U.S. at 379, 98 S.Ct. at 1117. The existence of overlapping coverage under other criminal statutes does not diminish the scope of the Hobbs Act. In Culbert the Supreme Court stated the purpose of Congress in no uncertain terms: "Our examination of the statutory language and the legislative history of the Hobbs Act impels us to the conclusion that Congress intended to make criminal all conduct within the reach of the statutory language." 435 U.S. at 380, 98 S.Ct. at 1117 (emphasis added).
Appellees contend this statement regarding the meaning of the statute is dictum because Culbert rejects only the implied exclusion from the Hobbs Act of non-racketeering offenses. But so clear a pronouncement
The district court allowed LaBinia to withdraw his guilty plea solely because the offense was not chargeable under the Hobbs Act. Since that ground must be rejected, the plea must be reinstated.
Reversed and remanded with instructions to reinstate the guilty plea, the judgment and the sentence.
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
(b) As used in this section —
. . . . .
(2) The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.