decided: September 16, 1971; As Amended September 24, 1971, January 6, 1972.
Freedman,*fn* Seitz and Rosenn, Circuit Judges.
Appellants, along with eleven others,*fn1 were named as defendants in an indictment containing one count charging a conspiracy to interfere with interstate commerce by means of extortion, and sixty-five counts charging substantive acts of extortion pursuant to the conspiracy, in violation of 18 U.S.C. § 1951 (the Hobbs Act).*fn2 After a trial of seven weeks, the jury returned a guilty verdict against all the appellants on the conspiracy count and all but two substantive counts.*fn3 On September 22, 1970, Addonizio, Biancone and La Morte were each sentenced to ten years in prison. In addition, Addonizio and Biancone were each fined $25,000.00; La Morte was fined $10,000.00. Vicaro was sentenced to twelve years in prison and fined $10,000.00.
The Government's theory was that, from as early as 1962 until the date of the indictment, there existed a conspiracy including as its members at various times, the Mayor of Newark, New Jersey (appellant Addonizio), certain members of the city government (including appellant LaMorte) and a group headed by defendant Boiardo (including appellants Biancone and Vicaro), the object of which was to extort kickbacks from contractors, suppliers and engineers engaged in public work projects with the city of Newark, and that in many specific instances the object of this conspiracy was attained. Most of the evidence at trial related to two major city projects -- the Southside Interceptor Sewer System (the "Southside project") and the Southerly Extension of Newark's water supply system (the "Southerly Extension"). The following is a capsulized version of the evidence relating to those two projects, viewed in the light most favorable to the Government.
A. The Southside Project.
Plans for this sewage project began in 1954, with the initiation of the first of two preliminary surveys by the engineering firm of Elston T. Killam Associates (Killam). In 1964, Mayor Addonizio's administration awarded Killam a contract for both the design and the construction supervision phases of this project. The plan called for the installation of an interceptor sewer system through which sewage would be transported from the city of Newark to a treatment plant operated by the Passaic Valley Sewage Commission.
One element of the extortion scheme involved the potential suppliers of pipe for this project. Since the Sewage Commission charged the city of Newark for the volume of sewage entering the plant as measured by a metering device, the Killam firm placed great emphasis on the necessity of obtaining pipe with minimum leakage, since ground water leaking into the pipe would increase the metered flow and add to the cost to the city. Killam's drawn specifications therefore required that the pipe to be used be fabricated with rubber and steel joints, the closest fitting joints available. Several companies, including the International Pipe and Ceramic Company ("Interpace", formerly Lock Joint Pipe Company), manufactured pipes with rubber and steel joints. Defendant Gallo owned several companies which made only pipe with rubber and concrete joints, which permitted much greater leakage.
Killam vigorously and successfully opposed an effort by LaMorte, then assistant to the Newark Director of Public Works and later Director, to substitute rubber and concrete joints in the specifications and increase the leakage allowance by 25%. LaMorte, however, succeeded in having Killam reluctantly include the rubber and concrete joints as an alternate in the specifications. LaMorte then met with Harry Gillespie, an executive of Interpace, and informed him that the job was his -- so long as the required 10% was forthcoming. Interpace, a manufacturer of both types of joints, eventually refused to go along.
When Paul Rigo, an engineer with the firm which eventually replaced Killam, spoke to Mayor Addonizio concerning the superiority of rubber and steel joints, the Mayor informed him that the pipe would be supplied by Gallo, since he, the Mayor, "had an interest in [him]." Gallo had by this time expressed his willingness to Sepede, a project engineer, to pay a required ten percent kickback in order to obtain the supply contract. Alerted by Gillespie, several councilmen raised the issue of the two types of pipe at a council meeting and questioned the propriety of using rubber and concrete joints. In response, the Mayor twice stated, falsely, that only Interpace, which had withdrawn from the bidding, manufactured pipe with rubber and steel joints. In fact, a number of firms, including the New Jersey plant of the Martin Marietta Company, manufactured such pipe. The contract to supply the pipe was ultimately awarded to Gallo.
In the meantime, Killam had been forced out of the project because it refused to pay any kickback. LaMorte, accompanied by an otherwise-unidentified "Mr. B.," informed Killam's vicepresident, Joseph Foley, at a luncheon that Killam had somehow "slipped through" the city's system of "kickbacks or shakedowns" and would thereafter be required to kick back 5% of its fee. Foley refused. Later Chairman of the Board, Elston Killam, and President Peter Homack, were summoned to City Hall. When they arrived, they went to the office of the Director of Public Works, where they were intercepted by LaMorte. He introduced them to the appellant, Biancone (who never had any official connection with the city government). Biancone took Killam and Homack into the Mayor's office and introduced them to Mayor Addonizio as the engineers who were designing the Southside project. Immediately after the introduction, however, Biancone and LaMorte took the engineers into the corridor outside of the Mayor's office where Biancone informed Killam and Homack that the administration wanted 5% of the firm's engineering fee. Killam refused, Biancone then demanded 4%, then 3%. Killam refused each demand and said he would pay nothing. He indicated he would not be involved in any kickback, would rather give up the contract on Southside, as well as other work he had secured from the City several years earlier and prior to Addonizio's election as Mayor. A few days later, Killam, despite ten years of work on the project, withdrew from it.
The Killam contract was thereupon assigned to a partnership involving Dr. Charles Capen, an elderly engineer, and John Sepede who, unknown to Capen, had already agreed with the defendant Boiardo to pay the required 10%. Sepede soon became ill with cancer, however, and Capen called Paul Rigo, a young engineer, and asked him to help on the project. Rigo accepted. The day he began work Sepede died.
It was not until several weeks later, in March 1965 that Rigo learned of the Boiardo-Sepede "deal" when LaMorte summoned Rigo to accompany him to meet the "real boss" of Newark. Rigo drove to the offices of Valentine Electric in Newark, where LaMorte introduced him to the defendant Ruggiero "Tony Boy" Boiardo. LaMorte remained outside the room during the ensuing conversation between the two. Boiardo told Rigo that if he wanted to get paid for the work he had done, and to continue to be paid, he would have to pay to Boiardo, in cash, 10% of all monies he received. Boiardo would, in turn, "take care of" the Mayor, council and "anybody else that has to be taken care of down there." Boiardo said this had been the deal with Sepede and that Rigo was going to be bound by it. Rigo, confronted by the demand, refused to pay. Boiardo said "everybody in Newark pays 10% or they don't work in Newark and they don't get paid in Newark. Look what happened to Killam. He didn't get paid or [sic] he didn't pay. He is not in Newark and he is going to sweat a long time before he gets what is owed him."
Faced with these threats, Rigo asked that the demand be lowered to 5%. Boiardo refused, and told Rigo that he, Boiardo, and his group had a plumbing supply firm (the Kantor firm, discussed below) which could cash Rigo's checks for a fee and issue him covering bills. Rigo, protesting that as an engineer he could not justify bills from a plumbing supply firm, told Boiardo that he would have to use his own corporation, Constrad, to cash the checks. Boiardo said that he did not care how Rigo got the cash, but that he had better get it. Rigo capitulated. Boiardo then told him he would be paid soon and that "somebody" would be in touch with him.
After Rigo received the first check, he received a call from someone who sounded like Boiardo, who asked if the payment was ready and said that someone would be down to pick it up that day. Later, Mario Gallo arrived and obtained the first payment. After Rigo received his second check, Gallo again picked up 10% in cash. On the third occasion, LaMorte was the man who phoned to ask if the payment was ready. LaMorte then came to the job site and introduced Rigo to Biancone, the Boiardo man designated to pick up this and later cash payments from Rigo. Rigo testified that he made these payments because he feared that, if he did not, he would cease to receive payments for work already completed.
In the meantime, action had been taken to bring the contractors into line. Biancone, Gallo and Sepede (when he was still alive) agreed that they and their coconspirators would require payments from contractors and suppliers totalling 10% of the contract price, or approximately one million dollars. Contractors interested in the work were advised of what was expected. Ralph Cestone, owner of the Verona Construction Company, was one of the contractors approached by Sepede, Gallo and Biancone. He refused to meet the demands or to join the joint venture of contractors who had agreed, and withdrew from the bidding. The Southside project was subsequently awarded to a joint venture of four separate contractors -- C. Salvatore and Sons, Mal-Bros. Contracting Co., The Catt Corp., and C. F. Malanka and Sons, Inc.
The kickbacks were made through the bank account of the fictitious "Kantor Supply Company." Irving Kantor, who was in the plumbing supply business, was approached in 1962 by Biancone, who asked him to provide a check cashing service for certain contractors who had to pay cash to his boss, "Tony Boy" Boiardo. In return for this service, Kantor would receive 5% of the face value of all checks cashed. Kantor agreed and obtained Biancone's agreement to an arrangement whereby Kantor would set up a "dummy" company (Kantor Supply), which would submit phony invoices to the victim contractors who, in turn, would remit checks to Kantor Supply. Thereafter, 95% of the face value of the checks would be delivered, in cash, to Biancone.
The Kantor Supply account was used to process the payments on the Southside project. Through it passed checks from the joint venturers and from Gallo companies aggregating $9,698,880.98, out of which Biancone received cash of $911,445.00.
B. The Southerly Extension
In May 1965 a few months after he began work on the Southside project, Rigo was enlisted by the City to begin plans for a "Southerly Extension of Newark's water supply," which was urgently needed to alleviate a critical water shortage. At a June 1965 meeting at City Hall attended by Addonizio, LaMorte, Rigo, and Corporation Counsel Norman Schiff, Rigo informed the Mayor that Gallo did not make the sort of high pressure pipe required for the project, and that the contract would have to go to Interpace (Lock Joint). In that case, the Mayor said "Tony Boy better figure out a way to get something out of Lock Joint." Corporation Counsel Schiff asked "Will he get enough?" The Mayor replied, "If he goes after it, he'll get enough."
Shortly thereafter, in a meeting with Charles Albertson, an Interpace vicepresident, Biancone said that Interpace could participate in the Southerly Extension only if it agreed to pay a 10% kickback. Albertson refused. A few weeks later, with Albertson out of town, Biancone met with Interpace's Gillespie and again tried to extract an unspecified figure. Gillespie made no commitment, but informed Albertson of the meeting upon his return and told him to call Biancone. Albertson called Biancone, met him the following day, and finally agreed to a payment of 5%, or $35,000.00.
Albertson recognized that his company was the logical supplier. Time was of the essence and Interpace had two factories in the vicinity of the job site, one in New Jersey and the other in Maryland. Notwithstanding his belief that his company might have been able to obtain the contract despite Biancone, Albertson testified that with the obvious control that Mr. Biancone and his group had over the specifications and the inspectors on the job, he was fearful that if his company took the job, they would be harassed with delays, rejection of product and such, that their cost would probably far exceed the $35,000 he agreed to pay. He also testified that he was aware of how his company had been "closed out" of the Southside Sewer project; that although he did not want to pay this money, he did so because of a degree of fear for his personal and family safety, and fear for his corporation.
By July 1965 Rigo began to feel the burden of making the 10% payments on the Southside project while working at the same time without contract or pay on the Southerly Extension. He spoke to both Mayor Addonizio and LaMorte, but to no avail. The Mayor informed him that any contract on the Southerly Extension would have to be cleared by Boiardo.*fn4
Rigo was later driven to Boiardo's home by LaMorte. Boiardo's response to Rigo's protestations was: "You pay your ten percent or I'll break both your legs."*fn5 Rigo was also informed that the time might come when he would be called upon to collect the payments from the contractors as well. Soon thereafter, Rigo received a contract on the Southerly Extension and began receiving payments thereunder. He remitted 10% of these payments periodically to Boiardo through the conduit of appellant Vicaro.
The bids for construction of the Southerly Extension were taken in August 1965. The low bidder, however, was Verona Construction Company, the firm which had refused to go along on the Southside project. All bids were promptly rejected. The project was thereupon rebid. When the new bids were opened, Verona was again the low bidder, and it was awarded the contract. Subsequently, however, Verona President Cestone capitulated in the face of the City's withholding of progress payments and agreed to pay $100,000 in kickbacks. These payments were made through Rigo, who had been ordered by Boiardo to act as a go-between. Rigo also served as a conduit for the $35,000 in kickbacks made by Interpace.
In late 1967, LaMorte informed Rigo that there was "some kind of sensitive situation"*fn6 which prevented Boiardo from making his regular distributions to the Mayor and other city officials. LaMorte told Rigo that Boiardo therefore wanted Rigo to make these payments directly to these officials, that the price was $10,000 to each of eight councilmen and the Mayor. LaMorte indicated that he felt he was entitled to $25,000, and that Rigo should also give something to Mr. Schiff. Finally, he said that all these payments would be deducted from the 10% that was being collected by Vicaro. Rigo made direct payments pursuant to this arrangement throughout 1968. The termination of the payments coincided roughly with the initiation of an Essex County Grand Jury investigation into certain financial dealings between Rigo and the Mayor.
Count I of the indictment charges that the defendants:
did wilfully, unlawfully and feloniously conspire with each other, and with other persons to the grand jury unknown, to obstruct, delay, and affect interstate commerce, as that term is defined in Section 1951 of Title 18, United States Code, and the movement of materials, equipment, supplies, and labor in such commerce by extortion, as extortion is defined in said section of the United States Code; that is to say, that the defendants did conspire to delay, to obstruct, to impede and to thwart construction undertaken on behalf of the City of Newark, the contractors performing such work and the timely and usual movement of supplies and materials needed to complete such projects, in order to obtain the property of contractors, engineers and others working on said municipal construction pursuant to said contracts, with the consent of such companies, their officers and their agents, said consent having been induced both by fear of financial injury and under color of official right.
In violation of Section 1951 of Title 18, United States Code.
Counts II through LXIV each charge a substantive offense corresponding to single payments made by Paul Rigo to the conspirators "in furtherance of the plan and purpose to commit the offense charged in Count I. * * *" Of these sixty-three counts, II through X, which concern payments made to Boiardo's middlemen, do not name a specific recipient of the payoffs, but simply allege that the "defendants obtained" varying sums on stated dates from Constrad, Rigo's corporation. Counts XI through LXIV, on the other hand, correspond to the period during which Rigo was making payments directly to city officials. Those counts name not only the specific sums and dates, but also the conspirator to whom the payment was made.
Appellants claim that the indictment does not satisfy the test set forth in Hagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 419, 76 L. Ed. 861 (1932):
"The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction'."
It is clear from a reading of the indictment that every count alleges the essential facts constituting the offense charged therein. Esperti v. United States, 406 F.2d 148 (5th Cir. 1969); Rule 7(c), Fed.R.Crim.P. If there be any defect in the indictment, therefore, it must be in its failure either to apprise the defendants of the charges against them or to protect them against double jeopardy.*fn7
In assessing the sufficiency of the conspiracy count, the Hagner test must be read in conjunction with the rule laid down in Wong Tai v. United States, 273 U.S. 77, 81, 47 S. Ct. 300, 71 L. Ed. 545 (1927):
"It is well settled that in an indictment for conspiring to commit an offense -- in which the conspiracy is the gist of the crime -- it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, * * * or to state such object with the detail which would be required in an indictment for commiting the substantive offense. * * * In charging such a conspiracy 'certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary.'"
We are convinced from our own careful reading of Count I, which charges a specified continuing course of conduct over a particular five year period, that it more than meets the Wong Tai test and, as required by Hagner, both adequately apprised the defendants of the charges against them and protected them against any future double jeopardy.*fn8
The sixty-three substantive counts allege payments of specific sums at specific times (fifty-four name the recipient as well), all in furtherance of the conspiracy. Since the conspiracy count is itself sufficient under Rule 7(c) and Hagner, it follows a fortiori that the substantive counts are sufficient as well.
Relying heavily on this court's decision in United States v. Provenzano, 334 F.2d 678 (3d Cir.), cert. den. 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544 (1964), appellants contend that the indictment in this case is multiplicious. In Provenzano the Government proceeded on a single-count indictment, on the theory that the series of payments over a number of years was the result of a "single and unified" extortionate scheme. The defendant argued that each payment should have been alleged in a separate count. In upholding defendant's conviction, Judge Biggs (then Chief Judge), speaking for the court, held only that the Government may legally proceed on a one-count theory. Provenzano does not stand for the proposition urged by the appellants, namely, that the Government must proceed on such a theory.
Indeed, such a holding, on the facts of this case, would ignore the reality of the situation. We think the evidence clearly shows that each of the payments charged in the substantive counts manifested all the elements of the crime of extortion as defined in the Hobbs Act. The statute requires only (1) that the defendants induce their victims to part with property, (2) that they do so through the use of fear, and (3) that, in so doing, they adversely affect interstate commerce. The evidence is clear that Rigo parted with his property on each of the sixty-three alleged occasions.*fn9 We think the evidence is equally clear that on each occasion he was motivated to do so by fear of economic injury to himself and his companies. Rigo testified explicitly and at length about his fears concerning the possibility of delay in his obtaining progress payments and the difficulties he would have experienced acquiring other work, both in and out of the Newark area, if he did not continue delivering the payoffs. The jury could certainly find that this continuing element of fear was the impetus behind each of the payments made. It was not necessary for the Government to prove a separate extortionate demand for each count. United States v. Tolub, 309 F.2d 286 (2d Cir. 1962). Finally, the Hobbs Act prohibits extortion which affects commerce " in any way or degree." It is a reasonable inference (which the jury was entitled to draw) that each individual payment from Constrad to the conspirators, to the extent that it depleted the resources of an interstate company and affected its ability to function, affected interstate commerce to some degree and therefore constituted a separate, independent violation of the Hobbs Act. United States v. Provenzano, supra, 334 F.2d at 693.
Since each count charged, and the evidence proved, a distinct violation of the Act, the indictment was not multiplicitous.
Appellants attack count I on the ground that it "is so broad in its scope -- including the period of time involved -- that the indictment is duplicitous." Assuming appellants' objection goes to the fact that the count alleges a conspiracy to commit several substantive offenses rather than one, the law in this circuit is squarely against them. "The conspiracy is the gist of the offense, and though the count charges an agreement to commit several crimes * * *, each one of which may be the basis for an indictment, the count charges but one offense under 18 U.S.C. § 371." United States v. Knox Coal Co., 347 F.2d 33, 39 (3d Cir.), cert. den. Lippi v. United States, 382 U.S. 904, 86 S. Ct. 239, 15 L. Ed. 2d 157 (1965); Frohwerk v. United States, 249 U.S. 204, 39 S. Ct. 249, 63 L. Ed. 561 (1919).
Appellants advance only a slightly more substantial argument as to counts III, VII and IX, which charged extortions from Constrad, Inc., of $37,000, $20,000, and $20,000 respectively. The proof at trial revealed that only a fraction of the money paid on each of these three occasions actually belonged to Constrad; the balances constituted payments from Cestone, which were merely being funneled through Constrad.*fn10 Appellants therefore argue that, while these three counts may not have been duplicitous on their face, they were in fact duplicitous in that they each implicitly charged two crimes.
The argument is specious. The real thrust of this argument is that the Cestone payments were irrelevant to the charge in counts III, VII and IX. However, as to all three counts, the Government proved all the elements of a Hobbs Act violation as to Constrad, the proof varying from the indictment only as to the amount extorted. Since the evidence as to the Cestone money was admissible to prove the conspiracy count at any rate, we are of the opinion that the discrepancy between indictment and proof on these three counts constituted merely a nonprejudicial variance which does not warrant reversal.
Appellants' other arguments as to duplicity are also without merit.
A. Failure to Grant a Continuance and Retransfer
As one might expect, a not insubstantial amount of pre-trial publicity accompanied the unfolding of this case, concentrated largely in the areas around Newark. Appellants assert that the trial court, through a number of its rulings, failed to adequately shield the trial from the effects of that publicity.
Appellants Biancone and Vicaro along with co-defendant Boiardo, made pre-trial motions for a change of venue to another district pursuant to Fed.R.Crim.P. 21(a), coupled with a request for a continuance of six months. Alternatively, they sought a continuance of one year with the trial to be held within the District of New Jersey. While acknowledging that the volume of pre-trial publicity was "both extensive and intensive," the court denied these motions,*fn11 stating that:
To presume, in advance of the voir dire examination of the prospective trial jurors, that the extent of the pre-trial publicity in this case negates the selection of a fair and impartial jury represents a premature and unwarranted supposition. This court is satisfied that a properly conducted voir dire will adequately protect the rights of these defendants to a fair trial. * * * If the voir dire disproves this assumption, the relief requested could then be reconsidered.
United States v. Addonizio, 313 F. Supp. 486, 493-494 (D.N.J.1970).
The court did, however, transfer the proceedings from Newark to Trenton, observing that:
in view of the concentration of public interest and news coverage in the Newark area, the court is convinced that the jury selection process will be facilitated by the transfer of these proceedings from the Newark to the Trenton vicinage of the district, and that such a transfer will ...