Common Pleas Court Judge Esther R. Sylvester and Municipal Court Judge Mario F. Driggs were each charged with one count of violating the Hobbs Act when both were judges-elect in December.
Their indictments were brief - less than two pages each - and did not recite whatever evidence the government may have to support the Hobbs Act charges.
Although the act covers extortion in its best-known sense - use of threats or violence to wrongfully obtain something of value from somebody else - it also has been interpreted in recent years as saying that public officials may violate the act merely by accepting money or property not due them and that comes only because of their official position.
"It recognizes that a public official doesn't have to make a threat," said the former federal prosecutor. "A public official can be very chilling by just saying, 'I'll remember you the next time you come before me.' "
Several attorneys defending roofers in the investigation said in recent interviews that a key interpretation of the Hobbs Act, which became law in 1948, came in the federal prosecution of Harry P. Jannotti, the former majority leader of City Council. "Everyone's running to look up the Jannotti case," said one attorney.
A jury convicted Jannotti in 1980 for his role in the Abscam scandal. He had been videotaped accepting $10,000 from FBI agents posing as representatives of an Arab sheik. The trial judge overturned the conviction, saying Jannotti had only "passively accepted" the money, but a panel of the Third U.S. Circuit Court of Appeals in 1982 reinstated the conviction.
In its opinion, the panel's majority quoted a previous Hobbs Act decision that said in part: "The government is merely required to prove that a public official obtained money to which he was not entitled, and which he obtained only because of his official position."
When reporters asked U.S. Attorney Edward S.G. Dennis Jr. yesterday if Sylvester and Driggs had done anything in return for the alleged cash payments, Dennis relied on the Hobbs Act.
"The act itself only requires that the money was intended to influence them in some way," Dennis said at a news conference. "It doesn't have to be that specific."
Jack L. Doherty, a Pittsburgh lawyer who has handled several Hobbs Act cases, said the latest interpretations of the act could technically be seen as prohibiting judges from even accepting a free golf game. But in reality, Doherty said, no prosecutor could get a conviction in a Hobbs Act case unless ''the totality of the testimony" showed some wrongful intent on a judge's part.
Still, one Philadelphia lawyer said he and others have grown increasingly concerned about the lack of a need to show what a public official is thinking about when he receives cash or property in Hobbs Act cases.
"The dominant intent is the intent of the donor, not the donee," the lawyer said.
He added that he believed justice would be poorly served if the government prosecuted sitting judges without very strong evidence that the judges realized the money's intent.
But when asked whether he thought judges who accepted cash from the Roofers Union leadership should not be prosecuted, the lawyer paused and then said, ''The words catch in my throat before I can say, 'Don't indict them.' "