The opinion of the court was delivered by: BARRY
Extensive press coverage, trumpeting charges of "extortion", followed the arrest and subsequent indictment of Gilbert Nelson, City Attorney for the City of New Brunswick, and James V. Gassaro, Director of Police. In that indictment, on which defendants were found guilty on June 11, 1987 on all counts,
defendants Nelson and Gassaro were charged with conspiracy to commit mail fraud (Count 1) and conspiracy to violate and a substantive violation of the Hobbs Act, 18 U.S.C. § 1951 (Counts 2 and 3). Nelson was also charged with and convicted on two counts of obstruction of justice (Counts 5 and 6), defendant George Shamy with one count of obstruction of justice (Count 5), and Nelson and Shamy together with conspiracy to obstruct justice (Count 4).
Following the return of the verdict, I dismissed the Hobbs Act counts.
There is, in my judgment, uncertainty in the Third Circuit as to a major issue of criminal law, i.e. whether, under the color of official right prong of the Hobbs Act, the prosecution must prove that a public official used the power of his office to induce payments not due him or his office. I determined that resolution of this apparent uncertainty should not be decided on a Fed.R.Crim.P. 29 motion because to do so would deny the government any opportunity to obtain review of my decision. I note that as defendants are entitled to justice in this court, so, too, is the government and, by virtue of the timing of my action, the government has the right of appeal. If the Court of Appeals resolves the uncertainty I see in favor of the government, the convictions on the Hobbs Act counts can be reinstated.
I. The Hobbs Act "proofs "
The government's proofs as arguably relevant to the Hobbs Act counts give new meaning to the word "meager". Richard Malouf, the purported victim yet the driving force behind the Count 1 scheme to defraud the City of New Brunswick, held an option to purchase and a right of first refusal on any offer made to purchase the property he leased from DeAngelis Buick in the City of New Brunswick. When, on November 17, 1982, an offer to purchase the property was made by one Antonio Zappia, Malouf was requested to exercise his right of first refusal within 30 days if he so desired.
In December 1982, Malouf contacted Nelson, a friend of thirty years, and thereafter met with Nelson and Gassaro, another life long friend. Malouf told them that he thought the property would be an excellent location for a City maintenance and repair garage and asked Nelson to ascertain whether the City would be interested. Nelson himself thought it was a good idea because the City had been looking for a location for just such a facility.
Malouf: I . . . turned to Mr. Gassaro and asked him if he would be interested in going partners with me on this piece of property, because I was -- I had just relocated to the highway and didn't have a lot of extra money to tie up in this piece of property. And I said to him that I thought it would be a good investment even if the City didn't buy it, because of the location and the renovations going on in the City, that it would be a good investment for us.
Q. Why did you ask Mr. Gassaro to become your partner?
A. Well, Jim and I have been friends a long time, many years, and over the course of the years when we'd bump into each other we would talk about things and once in a while we'd discuss maybe going partners on a project or something for an investment, an office building or something. And I just thought that this was a nice piece of property and it would, you know, being we knew the City, we knew the area, it would be a good investment. And, you know, in my mind I thought it would -- it wouldn't hurt to have Jim as a partner.
Q. And why in your mind did you think it wouldn't hurt to have Jim as your partner?
A. Well, because I thought maybe if -- if the City would consider it, that he might give a little support for it.
Q. Now, did you discuss that explicitly, what you had in your mind with Mr. Gassaro?
Q. That you thought his position ...