Petitioner was indicted and convicted in a Federal District
Court for interfering with interstate commerce by extortion, in
violation of the Hobbs Act, 18 U.S.C. § 1951. The only interstate
commerce mentioned in the indictment was the importation into
Pennsylvania of sand to be used in building a steel plant there,
but the trial judge permitted the introduction of evidence to show
interference also with the exportation from Pennsylvania of steel
to be manufactured in the new plant, and he instructed the jury
that it could base a conviction upon interference with either the
importation of sand or the exportation of steel.
The conviction is reversed. Pp. 361 U. S.
(a) Since the indictment did not charge interference with the
exportation of steel from the State, it was prejudicial error to
submit to the jury the question whether the extortion interfered
with the exportation of steel. Pp. 361 U. S.
(b) The variance between pleading and proof here involved was
not insignificant, and may not be dismissed as harmless error,
because it deprived petitioner of his substantial right to be tried
for a felony only on charges presented in an indictment returned by
a grand jury. Pp. 361 U. S.
(c) Since the jury might have based the conviction on a finding
of interference with the exportation of steel, the conviction must
be reversed. P. 361 U. S.
262 F.2d 571, reversed.
Page 361 U. S. 213
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner Nicholas Stirone was indicted and convicted in a
federal court for unlawfully interfering wit interstate commerce in
violation of the Hobbs Act. [Footnote 1
] The crucial question here is whether he was
convicted of an offense not charged in the indictment.
So far as relevant to this question the indictment charged the
following: from 1951 until 1953, a man by the name of William G.
Rider had a contract to supply ready-mixed concrete from his plant
in Pennsylvania to be used for the erection of a steel processing
plant at Allenport, Pennsylvania. For the purpose of performing
this contract, Rider
"caused supplies and materials [sand] to move in interstate
commerce between various points in the United States and the site
of his plant for the manufacture or mixing of ready mixed concrete,
and more particularly, from outside the State of Pennsylvania into
the State of Pennsylvania."
The indictment went on to charge that Stirone, using his
influential union position,
"did . . . unlawfully obstruct, delay [and] affect interstate
commerce between the several states of
Page 361 U. S. 214
the United States and the movement of the aforesaid materials
and supplies in such commerce, by extortion . . . of $31,274.13 . .
. induced by fear and by the wrongful use of threats of labor
disputes and threats of the loss of, and obstruction and prevention
of, performance of his contract to supply ready mixed
The district judge, over petitioner's objection as to its
materiality and relevancy, permitted the Government to offer
evidence of an effect on interstate commerce not only in sand
brought into Pennsylvania from other States, but also in steel
shipments from the steel plant in Pennsylvania into Michigan and
Kentucky. Again over petitioner's objection, the trial judge
charged the jury that, so far as the interstate commerce aspect of
the case was concerned, Stirone's guilt could be rested either on a
finding that (1) sand used to make the concrete "had been shipped
from another state into Pennsylvania" or (2) "Mr. Rider's concrete
was used for constructing a mill which would manufacture articles
of steel to be shipped in interstate commerce . . ." from
Pennsylvania into other States. On motion of petitioner for arrest
of judgment, acquittal or new trial, the District Court held that
"[a] sufficient foundation for introduction of both kinds of proof
was laid in the indictment." 168 F.
, 495. The Court of Appeals affirmed, all the judges
agreeing that interference with the sand movements into
Pennsylvania was barred by the Hobbs Act. 262 F.2d 571. Judge
Hastie and Chief Judge Biggs disagreed with the court's holding
that Stirone could be tried and convicted for interference with the
possible future shipments of steel from Pennsylvania to Michigan
and Kentucky. 262 F.2d at 578, 580. They were of opinion that no
interference with interstate steel shipments was charged in the
indictment, and that, in any event, it is an unreasonable extension
of the Act to make a federal offense out of
Page 361 U. S. 215
extortion from a man merely because he is supplying concrete to
build a mill which, after construction, will produce steel a part
of which may, if processed, move in interstate commerce.
We agree with the Court of Appeals that Rider's dependence on
shipments of sand from outside Pennsylvania to carry on his
ready-mixed concrete business entitled him to the Hobbs Act's
protection against interruption or stoppage of his commerce in sand
by extortion of the kind that the jury found the petitioner had
committed here. That Act speaks in broad language, manifesting a
purpose to use all the constitutional power Congress has to punish
interference with interstate commerce by extortion, robbery or
physical violence. The Act outlaws such interference "in any way or
degree." 18 U.S.C. § 1951(a). Had Rider's business been hindered or
destroyed, interstate movements of sand to him would have slackened
or stopped. The trial jury was entitled to find that commerce was
saved from such a blockage by Rider's compliance with Stirone's
coercive and illegal demands. It was to free commerce from such
destructive burdens that the Hobbs Act was passed. United
States v. Green, 350 U. S. 415
350 U. S.
Whether prospective steel shipments from the new steel mills
would be enough, alone, to bring this transaction under the Act is
a more difficult question. We need not decide this, however, since
we agree with the dissenting judges in the Court of Appeals that it
was error to submit that question to the jury, and that the error
cannot be dismissed as merely an insignificant variance between
allegation and proof, and thus harmless error, as in Berger v.
United States, 295 U. S. 78
crime charged here is a felony, and the Fifth Amendment requires
that prosecution be begun by indictment.
Ever since Ex parte Bain, 121 U. S.
, was decided in 1887, it has been the rule that, after
an indictment has been
Page 361 U. S. 216
returned, its charges may not be broadened through amendment
except by the grand jury itself. In that case, the court ordered
that some specific and relevant allegations the grand jury had
charged be stricken from the indictment so that Bain might be
convicted without proof of those particular allegations. [Footnote 2
] In holding that this could
not be done, Mr. Justice Miller, speaking for the Court, said:
"If it lies within the province of a court to change the
charging part of an indictment to suit its own notions of what it
ought to have been, or what the grand jury would probably have made
it if their attention had been called to suggested changes, the
great importance which the common law attaches to an indictment by
a grand jury, as a prerequisite to a prisoner's trial for a crime,
and without which the Constitution says 'no person shall be held to
answer,' may be frittered away until its value is almost
121 U. S. 121
1, 121 U. S. 10
The Court went on to hold in Bain:
"that, after the indictment was changed, it was no longer the
indictment of the grand jury who presented it. Any other doctrine
would place the rights of the citizen, which were intended to be
Page 361 U. S. 217
by the constitutional provision, at the mercy or control of the
court or prosecuting attorney. . . ."
121 U. S. 121
1, 121 U. S. 13
case, which has never been disapproved, stands for
the rule that a court cannot permit a defendant to be tried on
charges that are not made in the indictment against him. See
also United States v. Norris, 281 U.
, 281 U. S. 622
Cf. Clyatt v. United States, 197 U.
, 197 U. S. 219
220. Yet the court did permit that in this case. The indictment
here cannot fairly be read as charging interference with movements
of steel from Pennsylvania to other States, nor does the Court of
Appeals appear to have so read it. The grand jury which found this
indictment was satisfied to charge that Stirone's conduct
interfered with interstate importation of sand. But neither this
nor any other court can know that the grand jury would have been
willing to charge that Stirone's conduct would interfere with
interstate exportation of steel from a mill later to be built with
Rider's concrete. And it cannot be said with certainty that, with a
new basis for conviction added, Stirone was convicted solely on the
charge made in the indictment the grand jury returned. Although the
trial court did not permit a formal amendment of the indictment,
the effect of what it did was the same. And the addition charging
interference with steel exports here is neither trivial, useless,
nor innocuous. Compare Ford v. United States, 273 U.
, 273 U. S. 602
Goto v. Lane, 265 U. S. 393
265 U. S. 402
While there was a variance in the sense of a variation between
pleading and proof, that variation here destroyed the defendant's
substantial right to be tried only on charges presented in an
indictment returned by a grand jury. Deprivation of such a basic
right is far too serious to be treated as nothing more than a
variance, and then dismissed as harmless error. Compare
295 U. S.
Page 361 U. S. 218
United States, 295 U. S. 78
very purpose of the requirement that a man be indicted by grand
jury is to limit his jeopardy to offenses charged by a group of his
fellow citizens acting independently of either prosecuting attorney
or judge. [Footnote 3
the basic protection the grand jury was designed to afford is
defeated by a device or method which subjects the defendant to
prosecution for interference with interstate commerce which the
grand jury did not charge.
Here, as the trial court charged the jury, there are two
essential elements of a Hobbs Act crime: interference with
commerce, and extortion. Both elements have to be charged. Neither
is surplusage, and neither can be treated as surplusage. The charge
that interstate commerce is affected is critical, since the Federal
Government's jurisdiction of this crime rests only on that
interference. It follows that, when only one particular kind of
commerce is charged to have been burdened, a conviction must rest
on that charge, and not another, even though it be assumed that,
under an indictment drawn in general terms, a conviction might rest
upon a showing that commerce of one kind or another had been
burdened. The right
Page 361 U. S. 219
to have the grand jury make the charge on its own judgment is a
substantial right which cannot be taken away with or without court
amendment. Here, as in the Bain
case, we cannot know
whether the grand jury would have included in its indictment a
charge that commerce in steel from a nonexistent steel mill had
been interfered with. Yet, because of the court's admission of
evidence and under its charge, this might have been the basis upon
which the trial jury convicted petitioner. If so, he was convicted
on a charge the grand jury never made against him. This was fatal
error. Cf. Cole v. Arkansas, 333 U.
; De Jonge v. Oregon, 299 U.
162 Stat. 793, 18 U.S.C. § 1951. '
"(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
Bain was indicted for making a false statement "with intent to
deceive the Comptroller of the Currency
and the agent
appointed to examine the affairs of said association. . . ." After
sustaining demurrers of Bain to the indictment, the trial court
went on to say that
"thereupon, on motion of the United States, by counsel, the
court orders that the indictment be amended by striking out the
words 'the Comptroller of the Currency and
By this amendment it was intended to permit conviction of Bain
without proof that he had deceived the Comptroller as the grand
jury had charged.
"Yet the institution [the grand jury] was adopted in this
country, and is continued from considerations similar to those
which give to it its chief value in England, and is designed as a
means not only of bringing to trial persons accused of public
offences upon just grounds, but also as a means of protecting the
citizen against unfounded accusation, whether it comes from
government or be prompted by partisan passion or private emnity. No
person shall be required, according to the fundamental law of the
country, except in the cases mentioned, to answer for any of the
higher crimes unless this body, consisting of not less than sixteen
nor more than twenty-three good and lawful men, selected from the
body of the district, shall declare, upon careful deliberation,
under the solemnity of an oath, that there is good reason for his
accusation and trial."
Ex parte Bain, 121 U. S. 1
121 U. S. 11
See also Costello v. United States, 350 U.
, 350 U. S.
-363, n. 6.