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United States v. Torquato

decided: July 5, 1979.

UNITED STATES OF AMERICA
v.
TORQUATO, JOHN R. APPELLANT (D.C. CRIM. NO. 77-00272-01)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA -- PITTSBURGH

Before Weis and Garth, Circuit Judges, and Gerry,*fn* District Judge.

Author: Garth

Opinion OF THE COURT

John R. Torquato appeals from the judgment of sentence entered upon his conviction for conspiring with others to violate the Hobbs Act, 18 U.S.C. ยง 1951, and for substantive violations of that Act. He raises a number of legal issues on appeal, only one of which we think merits discussion. This one issue is whether Torquato made a sufficient threshold showing of selective prosecution to entitle him to an evidentiary hearing in which he could explore the factual predicate for his claim of unlawful discrimination on the part of the government in subjecting him to prosecution.

Based upon our review of the evidence presented to the district court, we conclude that Torquato failed to establish a showing of selective prosecution sufficient to entitle him to an evidentiary hearing. Additionally, we hold that his other claims are without merit. We therefore affirm Torquato's judgment of sentence.

I

The evidence adduced at trial indicates that from 1971 to 1976 Torquato, along with John George and Harold G. Stevens,*fn1 extorted funds from persons who leased heavy equipment to the Pennsylvania Department of Transportation ("PennDOT") in Cambria County, Pennsylvania. Torquato was the County Chairman of the Democratic Party in Cambria County from 1971 until 1978. He also held the position, during the years relevant to the indictment, of Supervisor of County Audits in the Department of Auditor General for the Commonwealth of Pennsylvania. During all times relevant to this case, George was an Assistant Superintendent of Highways for PennDOT in Cambria County.

According to testimony at trial, Torquato, because of his position as County Chairman, held De facto power to determine who would obtain work or contracts with PennDOT in Cambria County. Several lessors of heavy equipment testified that they had meetings with Torquato in which they sought his approval to enter into leases with PennDOT. During these meetings, Torquato would indicate that the Quid pro quo for obtaining a lease with the state would be payment of a percentage kickback "to the party." It was the understanding of the lessors, as reflected in their testimony, that PennDOT would lease their equipment only if they made such kickbacks. In 1971, the required payment was five percent of a lessor's gross income from PennDOT. This amount was increased to ten percent in the fall of 1972.*fn2

Most of the kickback payments were collected by George. Several witnesses testified that George would come to their place of business or job site to collect a percentage payment at the time of the arrival of their twice monthly rental payment from PennDOT. According to a number of government witnesses, when George collected money or discussed payments with them, he would indicate that he was acting under the direction of Torquato. George himself testified that he collected money from various lessors of equipment in Cambria County, and that he did so at the behest of Torquato.*fn3 He further testified that when he collected the money, he would immediately turn it over to Torquato.

Although the kickback payments made by the lessors were often characterized at trial as "political donations" or "contributions," the evidence would indicate that these payments benefited Torquato personally, and not the Democratic Party. With respect to those payments made by check, an employee of the Laurel National Bank testified that the checks had been cashed rather than deposited in any account.*fn4 This testimony was corroborated by that of Janell Morana, a secretary for the Cambria County Democratic Committee. Morana testified that she received all of the Party's money, recorded it, and deposited it into appropriate accounts. After examining the kickback checks that had been submitted into evidence, she testified that she had cashed them all at the direction of Torquato. When the checks were cashed, the proceeds were placed in an envelope and returned to Torquato. Morana further testified that at the time George was collecting large sums of cash from various lessors, she received no cash to deposit in the Party's account.

In addition to the foregoing, the government introduced evidence that the activities of the lessors affected interstate commerce and that Torquato and George attempted to impede an investigation of their activities conducted by the Federal Bureau of Investigation. On June 29, 1978, a jury found Torquato guilty of conspiring to violate the Hobbs Act, and of various substantive violations of that Act.

During the trial of this case, Torquato's attorney requested that the government make available to him a report which he understood had been prepared by a committee of the Pennsylvania House of Representatives investigating state contract practices in Cambria County. In response to the request, the government attorneys stated that they had looked for but could not find the report. Subsequent to the trial, they disclosed that they had found two reports and turned them over to Torquato's counsel. One report is entitled "Final Report Pennsylvania House of Representatives Select Committee on State Contract Practices." However, the cover sheet indicates that it is an "Initial Draft" submitted by two men identified as "special counsel." (Hereinafter, this report will be referred to as the "Initial Draft)." The other report, as it appears in the record, lacks a cover sheet. Nonetheless, the parties are in agreement that this report is actually the final report of the House Committee. (Hereinafter, this report will be referred to as the "Final Report)."

Based on the information contained in these reports, as well as on other evidence submitted to the district court, Torquato filed post-trial motions to dismiss the indictment and to accord him an evidentiary hearing on the issue of selective prosecution.*fn5 The basis for these post-trial motions was the claim that the United States Attorney for the Western District of Pennsylvania possessed information which indicated that Robert Gleason, Chairman of the Republican Party in Cambria County, had extorted funds from lessors when the Republican Party was in office prior to 1971. Torquato argued that the failure of the United States Attorney to prosecute Gleason within the statute of limitations period,*fn6 despite this evidence, made his own prosecution discriminatory and unlawful. He contended that they had made a sufficient prima facie showing to be entitled ...


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