Petition — Daley v. United States
Supreme Court brief1978
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LS 2.544400
Supreme Court, U. & .
FILED ‘
| | Noy 18 1977
MICHAEL RODAK, JR., CLERK
IN THE
Supreme Court of the United States
October TERM, 1977
No. ..... vd v4 -%714
TxHeropore G. Datey,
Petitioner,
v.
Unirep States or AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Gustave H. Newman
522 Fifth Avenue
New York, New York 10036
(212) 682-4066
Attorney for Petitioner
Roczr BENNET ADLER
Of Counsel
TABLE OF CONTENTS
PAGE
Oe 1
SE it Ra I i PP ee Ot RES A TOE TIO 2
EE NC Ce Pe 2
Statutory Provisions Involved _...2.02......0.......ccccececeeeees 3
ET en ee FEE a 3
I 3
I, I TO II gi iichactactileehcheedlicnsditapdtinedbisiichalony 11
REARS See LAE EVO I 16
Purchases of Material and Labor ......00...22.......... 18
Reasons ror ALLOWANCE OF THE WRIT
Powr I—
The Trial Evidence Was Legally Insufficient to
Establish Conduct Violative of the Hobbs Act .... 20
A. The Trial Bvidence Was Legally Insufficient
to Establish Racketeering as Required by the
IIIS IID scutes iclineicnidsuieetaistdentcesilidbiibacnnnndabceatiaiieeas 21
B. The Trial Evidence Was Legally Insufficient
to Establish Any Effects on Interstate Com-
merce as Required by the Hobbs Act ............ 26
C. The Trial Evidence Was Legally Insufficient
to Establish Reasonable Fear as Required by
«gf Eyes pene Ite 30
Pont II— PAGE
The Government’s Failure to Competently and In-
dependently Establish a Conspiracy as a Condi-
tion Precedent to Its Use of Conversations of
Alecca and Clausi Requires Dismissal of Count I.
The Consideration of Their Testimony as Ev-
idence in Chief Was Evidentiary Error ................ 31
A. The Submission of the Conspiracy Count to
Cae RIG anccectcncecenesessentesncnnsnsnsnnnssicscanecncsenmnesannncnnetiie 34
Pornt III—
Because of the Court’s Status as the Trial Judge
in a Prior Proceeding Wherein the Court Passed
Upon the Credibility of Raymond Ebert and
Theodore G. Daley and Found Against Local 445,
the Court Should Have Recused Itself ............... 35
Clamne __.__. . csstidipslianaiielinelaneuiadiaieibaamieaniabaiaaiabaiaaaas 41
Appenpix A—
Opinion of United States Court of Appeals .......... la
Appenpix B—
Ber TI eccccersenccetcsnsnenttnninsentenivenvcneenvemnnan l4a
Appenpix C—
DMI ncscctccceeseestcsecennzeccsimacinnssescsnenesessensnnsennasensenscesn 17a
TaBLE oF AUTHORITIES
Cases:
Berger v. United States, 225 U.S. 21 (1921) -............... 36, 37
Commonwealth Coatings Corp. v. Continental Casualty
FG EE 37
PAGE
Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210 (1970) ........ 33
Galella v, Onassis, 353 F.Supp. 196 (S.D.N. 1972), aff’d
in part, rev'd in part, 487 F.2d 986 (2d Cir.) ................ 38
Glasser v. United States, 315 U.S, 60, 62 S.Ct. 457
[1942] ....... po &
Hirschkop v. Virginia State Bar Association, 406 F.
Supp. 724 (E.D. Va. 1975) ...... iectiiinidieeesnsiiattas 38
Hoiry v. Lavine, 553 F.2d 845 (2d Cir. 1977) —...000000..... 36
In re Murchison, 349 U.S. 133 (1955) . 37
Johns Hopkins University v. Hutton, 316 F.Supp. 698
(D. Md. 1970) ... 39
Mitchell v. Sirica, 502 F.2d 375 (MacKinnon, J., dis-
ND eiteiciinniecaenniccdtncstinninte saa : 36, 37
Offutt v. United States, 348 U.S. 11 (1954) —..00000..... 36, 37
Paul v. Davis, 424 U.S, 693, 9€ S.Ct. 1155 (1976) ........ 21
Satterfield v. Edentown-Chowan Board of Education,
530 F.2d 567 (4th Cir. 1975) 39
Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) ........... 39
Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270
STIEIETsuchebboietschcineheseeniepieiaiciiminanaihenactnateneeitshiabianabien 26
Tumey v. Ohio, 273 U.S. 510 (1927) 2000 37
United States v. Brecht, 540 F.2d 45 (2d Cir. 1976) .... 25
United States v. Civella, 416 F.Supp. 676 (W.D.Mo.
1975) ..... 38
United States v, Culbert, 548 F.2d 1355 (9th Cir. 1977),
cert. grtd. —— U.S. (Oct. 5, 1977) ....20-21, 24, 25, 41
iv
PAGE
United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007
CTT onniecscsscsnectinrccernniinammaiiidn 22, 23, 25
United States v Falcone, 311 U.S. 205 (1940) -............... 33
United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969) 33
United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en
bane), cert. denied, —— U.S. ——, 96 S.Ct. 446
CBTID eneecccecs-rcnssinencictusiinsitianinimsinmi 26
United States v. Merolla, 523 F.2d 51 (2d Cir.
| eNO E RE 25, 27, 28, 29
United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090,
Br, BO CRT aanecencenccssecsecntteetensingntien 33
United States v. Patrick, 542 F.2d 381 (7th Cir. 1976) . 39
United States v. Rastelli, 551 F.2d 902 (2d Cir. 1977),
cert, den., U.S. —— (22 Cr.L, 4016 October 3,
BOTT aenecccnececnnesnsierssssntencincctectonestinngeiaaanan 30
United States v. Rosenblatt, 554 F.2d 36 (2d Cir.
OTT acnnenxexsovsnescnnceesscenniesensutiontetiteenmmnesitaaia 33-34
United States v. Shackelford, 494 F.2d 67 (9th Cir.),
cert, denied, 417 U.S. 934, 94 S.Ct. 2647 (1974) _...... 26
United States vy. Stanchich, 550 F.2d 1294 (2d Cir.
BOT ceecsasecceovessnnactnissnissesconsensiiaennseunnaan 33, 34, 35
United States v. Taylor, 464 F.2d 240 (2d Cir. 1972) ... 35
United States v. Yokley, 542 F.2d 300 (6th Cir.
SD snctcsnati s-osounssestsmncsanssnishiitsieissiaiadiieiiiiiaamaanan 23, 24, 25
Whitaker v. McLean, 118 F.2d 596 (D.C. Cir. 1941) ... 36
Other Authorities:
Constitution
0. BALE 2 i ee 35
Federal Rules of Evidence, See. 801(d)(2) _........ oe 33
Hobbs Act
18 U.8.C. 1951 ......... ae dostetatiiuaaim passim
Vv
PAGE
The Landrum-Griffin Act
EN 1, 3, 21n
Nee cccmmennes 3
ESL ES ER 3
ETN a 19
N.Y. Penal Law § 155.40 (McKinney 1975) ................ 25, 26
J. MacKenzie, The Appearance of Justice, 241 (1974) 36
Title 28, U.S.C. Section 455 (1970) 00 36
Note, Disqualification of a Federal District Judge for
Bias—The Standard Under Section 144, 57 Minn.
Nc ccssummsosetewvevevece 37
IN THE
Supreme Court of the United States
Octoser TerM, 1977
THeopore G. Datey,
Petitioner,
v.
Unrrep States or AMEnrica,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioner, Theodore G. Daley, respectfully prays that
a.writ of certiorari be issued to review the judgment of
the United States Court of Appeals for the Second Circuit
entered in this case on October 20, 1977.
Opinions Below
The opinion of the Court of Appeals is unreported and
appears as Appendix A to this petition. The Court of
Appeals affirmed a judgment entered after a jury trial in
the United States District Court, Southern District of
New York (Hon. Morris Lasker, J.), which found peti-
tioner guilty of conspiracy to violate and violating the
Hobbs Act (18 U.S.C. 1951) and with improperly accept-
ing goods and services in violation of 29 U.S.C. 186.
Petitioner was sentenced to a suspended sentence and
2
three years’ probation upon all counts and a $5,000 fine
upon each of the counts charging violations of 29 U.S.C.
186 totaling $25,000.
Jurisdiction
The jurisdiction of this Court is invoked under 28 U.S.C.
1254. This petition for writ of certiorari is filed within
30 days of the entry of the Court of Appeals judgment of
affirmane s.
Questions Presented
1. Was the evidence legally sufficient to support a con-
viction for conspiracy to and violating the Hobbs Act, or
was this prosecution an unwarranted extension of federal
jurisdiction into a purely intra-state affair?
2. Did the trial court err in denying defendant’s re-
cusal motion?
3. Did the court err in finding that sufficient indepen-
dent evidence existed such that the hearsay utterances of
petitioner’s co-conspirators could be considered as evi-
dence-in-chief against him and by failing to dismiss the
conspiracy count?
4. Is the rule in the Second Circuit which permits hear-
say evidence to be utilized upon a showing that a con-
spiracy was established by a preponderance of the evi-
dence legally erroneous and at variance with holdings by
this Court and companion Courts of Appeals?
une er mms ++ ee
3
Statutory Provisions Involved
The Hobbs Act (18 U.S.C. 1951); the Landrum-Griffin
Act (29 U.S.C. 186); 28 U.S.C. 455; 28 U.S.C. 144. These
appear as Appendix B to this petition.
Statement of Facts
Theodore G. Daley was the secretary-treasurer and prin-
cipal officer of Teamster’s Local 445 which took in the
upstate New York counties of Westchester, Putnam,
Dutchess, Rockland, Orange, Ulster and Sullivan (T-40).+
Within this geographic area, the union had employment
jurisdiction over general freight, construction, furniture,
cement plants, brickyards, bus driving industries (T-40).
The union operated various local hiring halls through its
elected business agents (T-46). These business agents
were charged with the responsibility of supplying employ-
ers with teamster employees (T-46). The assignment pro-
cess did not operate in a manner such that the business
agent would assign workers in a sequential fashion from
a list. Rather, different skill requirements for a given job
mandated a fluid assignment process (T-46, 47). Below the
business agents, in the union hierarchy, were shop stew-
ards (T-47). These positions were filled by the business
agent or the secretary-treasurer (T-47).
The Windham Camp
Petitioner Daley*® lives in Wappinger Falls, New York
(T-48). In 1968, Anthony Alecea first learned of Daley’s
+ References in parentheses refer to pages of original transcript
of trial.
* Daley was originally a truck driver. In 1955, he became active
in union affairs and was elected secretary-treasurer of Local 445 and
ultimately over the years built up the local’s membership from 2,000
to 8,000 members (T-130).
4
ownership of property in Windham,* New York (T-49).
Alecca accompanied Vincent La Rocca, a member of Local
445, and Daley to the Windham house to werk on its roof
(T-50).
In the autumn of 1970, Daley first discussed his need
for equipmert at Windham, in this case a backhoe with a
front-end loader on it, with Alecea (T-52). Later, in the
summer of 1971, Daley and Alecca discussed the need for
heavy equipment (T-53). Daley needed a small bulldozer
but Alecea claimed he had trouble**® finding one (T-53, 54).
Ultimately, Tony Naccarato, a member of Local 445 who
had a bulldozer and a “low boy” truck, transported the
bulldozer over the road from Kingston to Windham (T-55).
A week or two later, Daley asked Alecca if he knew
where a large bulldozer could be obtained (T-62). Once
again, a “low boy” was obtained and the machinery trans-
ported to Windham (T-63).
In June 1971, Daley told Alecca that he had spoken to
Clausi about obtaining beams for his cabin. Daley did not
know why Clausi had been unable ot deliver them. Alecca
would find out why (T-88). Clausi told Alecca he would
have to speak to Mr. Marcelle of Callanan Road Improve-
ment Company before the beams could be released ( T-88).
Alecca told Marcelle that the beams were for Daley and
*The Windham Camp consisted of a small frame house with
two bedrooms, a foyer and kitchen (T-1365). In addition, a pool
was installed on the 10 acre mountainous parcel (T-1508). Daley
spent some $13,000 on his Windham camp (T-1445).
** Daley testified it was he who had the trouble getting local
Windham contractors. Alecca told Daley he wou'd send over a
bulldozer that he, Alecca, was using up at his house (T-1485-1486).
All three local contractors were too busy to accommodate Daley at
that point in time (T-1487, 1490-1491). Daley denied failing to
use local contractors solely because of the price they charged (T-
1492).
5
were to be delivered to Windham (T-89). Ultimately,
Clausi told him that the beams were sent to Windham
(T-89).
Later still, Daley told Alecca he needed loads of one-
inch stone* at Windham (T-73-74). In this connection,
Alecca spoke to Tom Turco, the plant superintendent at
the Kingston based Hudson Cement Company.**® Turco
told Alecca he would first have to get approval from his
supervisor Robert Greene (T-78), before he could approve
a donation of ten truckloads of stone (T-78, 438-440). It
was Turco’s understanding that since the material was
going to be used to construct a driveway, “screening” ***
and not crushed stone was being donated (T-443, 465, 466).
Turco’s supervisor Greene likewise believed that “screen-
ing” and not stone was being requested (T-482, 501, 504).
It was not until the following day that Turco realized
that stone had been taken instead of screening (T-467).
Once Turco learned of this, he called Greene, who in turn
called Tony Alecca. He asked Alecca what he was doing.
Alecea told Greene of the need for additional material
based upon a miscalculation. Permission was given to take
a few more loads but, to Greene, the venture was “embar-
rassing”. “Because what was a good will gesture is now
taken advantage of everybody” (T-486).
Thereafter, Alecca told Tom Clausi, a Local 445 shop
steward employed by the Callanan Road Improvement
Company (T-81), to make arrangements to obtain trucks
and drivers to deliver the stone to Windham (T-84).
* Daley denied asking for stone. He asked Alecca for waste ma-
ial (T-1377, 1493, 1496).
wee at that time, Hudson Cement had two labor contracts with
445 (T-79). é'
lee setloviacel a dust-like material (T-483). Its value varies.
At the time of the trial, Hudson Cement was backlogged with a
quarter of a million tons of it. Tt was then a waste product (T-498).
6
Alecca told Clausi, then shop steward for Callanan Road
Improvement Company, to contact Mike Spada and Bob
Kozlowski* to have their trucks down at the Hudson
Cement Company to get them loaded with “number one”
stone (T-199). Once the stone was loaded**, Alecca would
meet with Clausi and Spada at Spada’s garage and indi-
cate where it was to be delivered (T-201). The drivers
consisted of Fred Perry, Frank Qualtere, Mike Spada Jr.,
Bob Snyder and others. There were some ten or eleven
drivers in all (T-203). Daley was told that the stone would
be delivered that evening (T-85).
After the trucks were loaded, Mike Spada Jr., Fred
Perry, Frank Qualtere***, Bob Snyder, Robert Kozlowski,
* During the summer of 1971, Kozlowski, a member of Local 445
as well as a truck owner, had a job supplying trucks on the Callanan
Thruway job (T-688). On the Friday prior to Labor Day, he re-
ceived a telephone call from Clausi who told him to bring some
trucks and drivers to the Hudson Cement Company (T-691).
Kozlowski then asked a number of drivers, his brother Ron, Forte,
Brennan, Stewart and Bockelmann, whether they would drive.
Brennan and Stewart both refused. He then drove to Hudson
Cement and loaded the trucks (T-692).
Kozlowski was finished loading in about a half hour (T-695).
The caravan of trucks then left Kingston for Windham; the trip
was interrupted for a stop for dinner (T-696). As Kozlowski was
driving up Route 296, he saw Daley driving down the mountain in
the other direction (T-698). He asked if Kozlowski’s truck was
going to Daley’s camp. Daley was told it was (T-699).
Most of the stone was dumped directly on the property, except
for a tractor-trailer which dumped its load in the middle of the
on’ its contents were ultimately pushed in with a bulldozer (T-
701).
After the stone was dropped, the truckers headed for home,
stopping to eat and drink beer (T-702). The finally arrived at home
at 2:30 a.m. (T-703).
** Clausi went to Hudson Cement where he met Tom Turco. He
told Tureo that Alecca sent him down for number one stone. Turco
told Clausi to have the trucks weigh in and to on the 3/8 stone pile
(T-207-208).
*** Clausi contacted Qualtere somewhere on a highway. Qualtere
was told he had to bring some waste material up to Daley’s Wind-
7
Ronald Kozlowski, Joe Forte*, Dick Bockelmann**, and
Herb Sutton made the Friday evening trip from Kingston
to Windham (T-210, 211).
Clausi travelled ahead of the truck caravan (T-212).
On the way up to Windham, Clausi met Petitioner, who was
travelling down from Windham (T-213). Clausi told Daley
that trucks with stone were on the way up to Windham
and was told to begin dumping at the back end of Daley’s
cabin (T-214). The loads of stone were ultimately dumped
that evening and the drivers returned home to Kingston
by about 2:30 a.m. Saturday (T-221).
Several hours later, Ted Daley called Clausi and told
him of the need for additional stone deliveries (T-222).
Daley told Clausi he needed 20 or 30 more loads (T-223).
Clausi arranged for it. He then called Bob Kozlowski***
and Mike Spada and asked them to come down to Hudson
ham camp (T-567, 568, 569, 589). He then picked up a Spada
truck, went to Hudson Cement, picked up a load of waste and
followed the other trucks to Windham (T-568).
_ The following morning, he spoke with Clausi, who told him of
the need to drive up another load. He did this.
* Joe Forte was asked to make the drive to Windham by Bob
Kozlowski (T-401). He participated in the loading at Hudson
Cement Company and the drive to Windham. Forte also partici-
pated in the following day’s trip (T-410).
** Bockelmann was contacted following his evening meal (T-
337). He picked up a load of stone at Hudson Cement Company
and was told he was driving it to Windham (T-341). He drove to
Windham arriving at 10:00 p.m. (T-368), dumped his load in the
cut behind Daley’s cabin (T-346) and drove home (T-348). In
addition to driving the truckload of material to Daley’s camp,
Bockelmann also supplied a truck which was driven by Joe Forte
(T-356). This second vehicle was used to make an additional de-
livery of material the following day. Bockelmann was not paid for
his services (T-356-358).
#** The following morning, at 7:00 a.m., Clausi called him and
requested trucks and drivers (T-703). Kozlowski called Bockel-
mann, Forte and Stewart and they agreed to go (T-703). Ulti-
mately, at 1:30 p.m., he went to Hudson Cement, loaded his truck
8
Cement and load their trucks for an additional trip to
Windham (T-223-224).
Neither man objected, and at 1:00 p.m., some fifteen or
sixteen trucks were loaded up with “dirty %%” stone
(T-224-228). Among the drivers on this second trip were
Tony Zmiarch, Frank Qualtere, Bob Snyder, Herb Sutton,
Harley Williams, Frank Mahone, Bob Kozlowski, Ronald
Kozlowski, Dick Bockelmann, Joe Forte, Collins Becker
and Alton Stewart (T-225). Two teamsters refused to make
the drive to Windham—Leland Eaton and William Bren-
nan (T-225, 278-279). The fact of the refusal of these
two men to volunteer their services was not reported to
anyone (T-226, 280).
Anthony Naccarato, a member of Local 445, was em-
ployed as a shop steward by the Lizza Construction Com-
pany on Route 84 near Newburgh in September 1971
(T-510-511). On the Friday evening prior to Labor Day
1971, he received a telephone call from Chet Davis. As a
result of his telephone conversation, Naccarato picked up
a “low bed” truck, took it to Kingston (T-513). Alecea led
him to the Daley camp with the bulldozer (T-515-516).
One afternoon, weeks later, Naccarato received a tele-
phone call from Ray Ebert*, indicating that the bulldozer
was no longer needed and that Naccarto could return it.
He then picked up the bulldozer and returned it (T-521).
Alton Stewart was employed by Callanan Road Improve-
ment Company and was a member of Local 445. Bob Koz-
lowski contacted Stewart and asked him to drive a load to
with 3/8 stone (T-705), and drove up to Windham, arriving some
two hours later (T-706). Kozlowski never asked Daley to compen-
sate him for either his labor or for the cost of ting hi
(T-756, 757). operating his trucks
* Ebert is a business agent for Local 445 (T-520).
9
Windham (T-535). Stewart refused (T-536). That evening
he received a telephone call from Tom Clausi, asking
Stewart to drive a load up to Windham because “... if I
wanted a job, I had better go. So I told him I would take a
trip up the next day” (T-537).
On Saturday morning Stewart received telephone calls
from Bob Kozlowski and Tom Clausi indicating that the
drive was being postponed until noon (T-537). He then
picked up a truck, loaded it and drove to Windham (T-
538). After dumping his load of stone, he returned home
(T-540).
Daley was at the Windham house when the trucks ar-
rived. He was working a bulldozer as the trucks pulled in
(T-226). The stone was dumped and spread. The men
were offered beer and water as refreshments (T-228).
At the quarterly union meeting, Clausi and Alecca told
Daley they were sending up more trucks (T-1421). Clausi
and Daley agreed that an additional seven or eight loads
of stone were needed to complete the Windham driveway
(T-229). Daley never asked where this material came from
(T-1422).
The following Friday evening, September 10th, a num-
ber of trucks, including those of Mike Spada and Bob Koz-
lowski, drove to Hudson Cement Company where they
loaded with “dirty” % stone (T-230). The following day,
the stone was trucked to Windham (T-231, 711). Clausi
accompanied Bob Kozlowski on the trip. Daley was not
present when this Saturday delivery was made (T-1422).
In all, between 30 and 36 truckloads of material were
driven to Windham* (T-239).
* There were four or five Spada trucks and three Kozlowski
trucks (T-710). Kozlowski paid for the gasoline for all his trucks
(T-712).
10
Later in September 1971, Clausi and Daley had a
conversation® outside the international teamster office in
Washington, D.C. in which Daley asked Clausi to acquire
some timbers** for Daley (T-241). Ultimately in October
1971, the timbers were obtained and delivered. These tim-
bers had been used on the State thruway to divert traffic
while repairs were made.
In late October or November, Alecca told Clausi:
“Ted [Daley] is hot. He wants the timber.” (T-246)
As a result, Clausi spoke with John Callanan, the super-
intendent of Callanan Road Improvement Company. As
a result of this, Callanan called Doc Marcelle, who then
spoke to Alecea. Ultimately, the timbers were obtained and
delivered.
Alecea indicated that to his knowledge, Hudson Cement
was not paid for the stone it donated (T-89), nor was
payment made for the timbers, nor were the trucking com-—
panies or the drivers paid for their services (T-90).
In April 1973, Aleeca went to and was interviewed at
the Kingston F.B.L. office. This trip was made subsequent
to an unsuccessful attempt by the rival faction to defeat
the “Daley” slate in the tri-annual union election.
In March 1974, Daley and Bob Kozlowski purportedly
had a conversation at the union hall in which Daley told
him that he could put Kozlowski’s four trucks to work
“tomorrow”, but wouldn’t (T-832).
* Following this conversation, Clausi claimed Alecea called him
several times indicating that Daley was on Alecca’s back about the
timbers (T-243).
** Daley insisted he spoke of the need for railroad timbers (T-
1370). When they were delivered, Daley had no use for them.
He complained to Clausi and Alecea about this. Alecca asked Daley
to keep them because he could use them (T-1372-1374). Subse-
quently, Daley purchased the lumber he required at Windham
Greenhouse Nursery and at the Poughkeepsie junkyard (T-1375).
11
The Question of Fear
It was Clausi’s testimony that some of the men who
were asked to deliver the stone to Windham were unhappy
about the invitation.
“Well, some of them were unhappy. I says, ‘Look, I
am just as unhappy as you are, but if you have any
gripes, don’t pick it out on me. Call Mr. Alecea, call
Mr. Daley’.” (T-239).
Clausi opined that the drivers were afraid that Clausi
would transmit their unhappiness up to Alecca or Daley.
Clausi denied that he would ever have done that (T-238).
When asked why he was a participant in the drives to
Windham, Clausi alluded to his family responsibilities
and stated:
“(F]rom the feeling I got around the union hall, you
either did what you were told or you didn’t work.”
(T-239).
On cross-examination, Clausi stated:
“Ted Daley or Tony Alecca never put pressure on me.
They never threatened me.” (T-296)
Dick Bockelmann indicated that he participated in the
drives to Windham to “insure” his job. He was concerned
that if he did not:
“(mJaybe there would be no more work for me some
place.” (T-364).
He concluded that Daley did not ask him to make the
drive up to Windham (T-376). He likewise conceded that
Daley had never denied him a job (T-277).
Joe Forte, who made three trips to Windham, claimed
he drove because he believed his job would be in jeopardy
12
for non-participation (T-412, 417). He was not threatened
during the period. During earlier grand jury testimony,
Forte indicated that the talk of job loss was only a rumor.
To the best of Clausi’s knowledge, none of the drivers
were paid for their driving (T-239). Clausi was not paid,
but then again, he did not expect to be paid (T-240, 264).
Neither were Spada nor Kozlowski paid.
When the timbers were driven to Windham, the drivers
were compensated because they were working on company
time.
Tom Turco of Hudson Cement indicated that he agreed
to provide the material because he felt that if he didn’t,
they would continue to aggravate him and make pests of
themselves (T-450-451). He was also concerned that nit-
picking grievances might possibly be raised at his plant
(T-452).
At no time did Daley communicate the idea either that
those who drove material filled trucks to Windham would
help themselves or that if they refused to drive they would
be hurt by losing their jobs (T-310-312, 602). Nonethe-
less, Clausi felt that if he or the other teamsters refused
to drive that they would not have obtained employment
on jobs controlled by Local 445 (T-313-314). Clausi de-
nied threatening Alton Stewart that he had better haul
stone or he would not be able to work (T-315). At no time
did Daley pressure Tom Turco of Hudson Cement to do-
nate material for the driveway (T-461). Indeed, Turco
indicated that although 1971 was the contract year with
Local 445, he did not consider that his refusal to donate
material would have any effect upon the contract negotia-
tions.
Bob Greene, Turco’s supervisor, was motivated to donate
material for the driveway because:
13
“(I] could visualize that there could be problems, minor
problems, which would result in loss of time or in-
spection of equipment that could be requested, which
all affect the operating efficiency of the plant.” (T-488).
He was concerned with possible union insistence upon
application of all technical safety rules. Once the initial
loads were taken, Greene just “wanted to get the situa-
tion finished with as soon as possible” (T-489).
At no time was Hudson Cement paid for the stone de-
livered to Windham (T-490). When the owner of Hudson
Cement learned of the donation, he “chewed” Greene out
for doing it (T-492).
Tony Naccarato indicated that he participated in the
drives to Windham for a multitude of reasons:
“More or less for friendship and to keep the ball and
everything going smooth ... The man was taking
care of me. I was working steady. So I figured it
wasn’t going too far to go out of my way to do some-
one else a favor.” (T-527)
Even when pressed by the prosecutor to speculate as to
what he believed would happen if he failed to drive to
Windham, Naccarato replied:
“It was a toss up. I might not get a steady job later.”
(T-527)
Alton Stewart, who refused to participate in the Friday
evening drive to Windham, but who did drive on Saturday
after hearing from Clausi, claimed he participated be-
cause he feared that if he didn’t:
“There would have been a possibility that I may not
have gained employment through the Union.” (T-544)
14
While work assignments were made by the business
agents, first by Alecca and later, after Alecca’s heart ail-
ment, by Mike Marco, a teamster could obtain employment
on his own (T-553).
Frank Qualtere, who drove waste material up to Wind-
ham on the Friday evening and Saturday prior to Labor
Day, indicated that he participated in the drive because
Clausi told him “... you are working so you go or else
you don’t work.” He was afraid that if he did not go he
would not have continued working (T-575, 603).
Leland Eaton was employed on a Callanan job* on the
Thruway in September 1971 when Tom Clausi contacted
him. Although he was also asked to deliver a load of stone
to Daley’s camp, he refused to go. He told Clausi, “I will
work whether I do it or not” (T-657). It was Eaton’s be-
lief that his failure to drive to Windham would not have
economic repercussions.** “I felt an immune position .. .
because I am a truck mechanic” (T-658).
Mike Spada told Eaton that Eaton did not have to par-
ticipate if he didn’t want to (T-1194, 1286).
Clausi never told Eaton that he would relate the latter’s
refusal to Petitioner. At no point after the trips to Wind-
ham were made was Eaton denied an employment oppor-
tunity because of his refusal to drive.
William Brennan was also working on the Callanan
State Thruway job in early September 1971 when Bob
Kozlowski contacted him and asked him to haul stone.
Brennan refused to go; he had already made plans and
* Eaton, however, was driving a Spada truck and also did repairs
on Spada’s trucks (T-657).
** He did, however, drive a truck down and saw to it that it was
loaded (T-658). Eaton was not deprived of any work as a result
of this posture (T-1287).
15
had no intention of changing them. The following Thurs-
day, Clausi asked Brennan to haul material to Daley’s
camp. Brennan refused (T-674). Clausi warned Brennan
that if he wanted to work the following Monday, he had
better make the haul. Brennan retorted:
“If I am not working Monday, there are places to go
to find out why I am not working.” (T-675)
The fact is that Brennan did work the following week,
but instead of working by the hour, he was switched over
and was paid by the number of tons driven. This change-
over had no adverse economic impact on Brennan (T-676).
Kozlowski never reported Brennan’s refusal to drive to
anyone from the Union (T-748).
Bob Kozlowski, who provided trucks on numerous occa-
sions, testified that at no time did Clausi or Daley threaten
him into hauling material to Daley’s camp in Windham
(T-833). He claimed, however, that he supplied trucks
“... for my drivers’ sake. I didn’t want to see them have
any hard feelings with the union over it.” (T-833)
Herb Sutton was working on a Thruway job in Sep-
tember 1971 when Clausi told him that there was a need
to make a “trip to the mountains” with a load of stone.
When Sutton protested, Clausi told him:
“You will either go to the mountains or be looking for
a new job.” (T-781, 789)
Sutton made the trip because:
“IT was afraid if I didn’t go, I would lose my work.
I needed the job.” (T-784)
This discussion followed a talk with Mike Spada wherein
he was told:
16
“(T]o go along with it and save myself a lot of grief
and headaches and trouble.” * (T-789)
This was the only time that Sutton was asked to drive
material to Windham. Nonetheless, the following week
Sutton remarked that he would not transport another load
of material even if it cost him his job (T-791). Sutton
was not terminated from his job as a result of these
utterances. Rather, he worked up through November 27,
1971 on that job (T-801).
Mike Spada, the owner of a trucking business in Kings-
ton, New York (T-1185), indicated that when Tom Clausi
asked him if he minded sending a couple oi trucks loaded
with material up to Daley’s camp, he had no objection
(T-1192). Spada was never threatened or coerced into
supplying trucks for the Windham trip (T-1192-1193).
Matthew Fitzgerald, the Vice President of Callanan
Road Improvement Company which had a thruway con-
struction project in September 1971, indicated that when
he released a quantity of wooden beams for Daley’s use,
it was not prompted by fear that a failure to do so would
result in union trouble (T-1294).
Even after Daley learned of the existence of a Federal
investigation into his union activities and that teamsters
were talking with the F.B.I., he never fired them or at-
tempted to deprive them of work (T-1428).
Local Customs
It was not uncommon for union members to perform
work on each other’s property. Thus, a ravine behind
Alecca’s house was filled in with gravel which was deliv-
ered by Naccarato in trucks supplied by Bob Kozlowski,
* Spada denied ever telling Sutton this.
17
Mike Spada and Dick Bockelmann (98, 263, 361-362). The
men were not paid for their work, but did receive a home
cooked meal (98, 362).
In addition, union members and others came to Alecca’s
house and installed a concrete basement which had been
delivered by Colonial Sand and Stone.
On another occasion, a bulldozer and loader was brought
to Alecca’s property. Later, still, Williams delivered “blue”
stone to the back of Alecca’s property to build a drainage
field. Mike Spada’s trucks were used for this purpose.
Furthermore, on one occasion, Alecca was given a pickup
truck as a Christmas present which was paid for by mem-
bers of Local 445.
On other occasions, Fred Perry and Bob Kozlowski’*
brought Alecca “run-a-back” gravel and Leland Eaton
dumped fill in Aleeca’s backyard while using a Mike Spada
truck. On numerous occasions, Alton Stewart also deliv-
ered loads of material to Alecca. He did this using Bob
Kozlowski’s truck. Similar trips were made by Qualtere
(T-572). He did not pay for this. On one occasion, Alecca
obtained material for use in his own driveway from Hud-
son Cement. On other occasions, Naccarato allowed Alecca
to take fill from his property. Other times, Naccarato al-
lowed relatives and friends to utilize his truck and bull-
dozer without charge.
The donation of materia! by Turco and Greene for use
in Daley’s driveway was not an unusual gesture. They
frequently made donations as a “community relations”
gesture (T-487).
* Kozlowski personally made three deliveries of material to
Alecca’s house, as well as loaned trucks for such purpose (T-750).
A total of a dozen of Kozlowski’s trucks were loaned in all (T-751).
18
On one or two occasions, Hudson Cement gave Alecca
material following his complaints concerning the render-
ing of damage to his property caused by Hudson Cement.
Another time, screening was donated for use in the con-
struction of the parking lot at the union hall* (T-496).
At no time did Daley ever ask Greene for any material
(T-497).
It was also not uncommon for truckers to take, at no
cost, the beams which road construction companies used
as barriers and traffic dividers. Spada used the beams,
with the consent of Callanan Road Improvement Company,
for blocks under his trucks when repairs were necessary.
No threats were ever involved in obtaining such beams.
Daley also worked for union members. On one occasion,
Daley and his son helped Alecea work on his house. On
another occasion, he worked on an inoperable cistern.
In addition, Daley did work for Alecca’s neighbors, as
well as on the home and/or property of Chet Davis, Ray
Ebert, Brad Wilson and Bill McConnell. Similarly, Alecea
helped Daley carve out the path for the circular driveway
at Windham.
Purchases of Material and Labor
Dave Alexander sold Daley a quantity of “black-top” for
the latter’s driveway at his domicile in Wappinger Falls,
New York. He also borrowed a bulldozer for use at the
property.
When Daley decided to increase the size of the Windham
cabin, he retained a local contractor to do the work. Sim-
ilarly, when the pool was installed, the work was performed
* Kozlowski provided his trucks on that occasion (T-752). In
addition, Kozlowski allowed his drivers to use his trucks. He also
donated his trucks for use by community organizations (T-756).
19
by a contractor and was paid for. When a new roof was
installed, the material was likewise purchased.
When Petitioner wanted work done on his driveway, he
hired two contractors to do the work. In addition, bills
for material purchased from Jack Landers Landscaping
Center for railroad ties, from Frank Tompkins for con-
tracting services, and Windham Lumber Company, indi-
cated Daley’s payment for materials obtained or services
rendered.
Insofar as payment for the teamsters who drove from
Kingston to Windham, Daley insisted he had several con-
versations with Alecca concerning his intention to com-
pensate the men. Daley believed that payment of some
$700-$800 wonld be fair to the truckers. Accordingly, he
gave this money, in cash form, to Alecca at the Newburg
union hall. This was confirmed by Chet Davis, who was
present in the upstairs office in Newburgh when the money
changed hands. Petitioner neither sought nor obtained a
receipt from Alecca. He did not then feel a receipt was
necessary. He conceded, in the light of future develop-
ments, that it would have been better to have given Alecca
a check.
Daley did not check with the drivers to insure that the
cash he gave to Alecca had actually filtered down to them.
When an investigation began in 1973, Daley wanted to
speak to the drivers to ascertain whether they had actually
been paid, but did not do so upon the advice of counsel
(T-1428).
Daley denied conspiring with anyone to extort materials
for his Windham camp (T-1462). He also denied causing
Clausi or Alecca to extort any materials for the Windham
eabin (T-1462).
20
Following the Government’s rebuttal case, it rested (T-
1821). The Court then denied defendant’s Rule 29 motion
made at the conclusion of the Government’s direct case,
stating:
“I am satisfied the Government has established the re-
quisite showing as to interstate commerce under both
Acts.” (T-1823).
The Court then denied defendant’s motion for a directed
judgment of acquittal upon all of the evidence (T-1823).
Following closing arguments by both sides, the jury was
charged on the applicable law. The jury convicted peti-
tioner upon all seven counts charged.
On May 6, 1977, Judge Lasker imposed sentence upon
petitioner.
REASONS FOR ALLOWANCE OF THE WRIT
POINT I
The Trial Evidence Was Legally Insufficient to Estab-
lish Conduct Violative of the Hobbs Act.
. In this Court petitioner initially raises an issue we be-
lieve to be of great importance (a) in the administration
of criminal justice, because of the immense burden upon
the federal courts and agencies charged with administra-
tion of federal criminal law which results in misuse of
the Hobbs Act, and (b) in halting federal intervention and
usurpation of local law enforcement and state and local
criminal statutes.
Indeed, this Court’s recent (October 3, 1977) grant of
certiorari in the case of United States v. Culbert, No. 77-
21
142, to review a judgment of the Court of Appeals for the
Ninth Cireuit (548 F.2d 1355) re-examining the thrust and
application of the Hobbs Act to particularly local conduct,
clearly demonstrates the pertinency and need for final ap-
pellate review of the Second Circuit’s affirmance and rea-
sons for affirmance of the application of the Hobbs Act
to the case at bar.
The Government’s resort to and the petit jury’s finding
that Daley’s receipt of material from employers and trucks
and trucking services from employees violated the Hobbs
Act is, we contend, legally untenable. If a conviction under
these counts* is permitted to stand, conduct heretofore
reserved to the States and having an insufficient nexus to
the exercise of Federal jurisdiction will have been assumed
by the Southern District United States Attorney’s Office at
a time and under circumstances when the jurisdiction of
the Federal courts is contracting and not expanding the
focal point of its work. See Paul v. Davis, 424 U.S. 693,
96 S.Ct. 1155 (1976).
The trial evidence was legally insufficient to establish
(1) that the acts alleged and proven at trial had any effect
whatsoever on interstate commerce, (2) that the “victims”
of the alleged extortion acted out of reasonable feai, and
(3) that the acts alleged and proven at trial were in the
nature of racketeering as required by the Hobbs Act.
A. The Trial Evidence Was Legally Insufficient to Establish
Racketeering as Required by the Hobbs Act.
While the United States Constitution is a dynamic doc-
ument, growing to meets the needs of each successive gen-
* We raise no further legal challenge, in this forum, as to that
portion of the verdict which found Daley guilty of violating 29
U.S.C. 186. Given the traditional play which the jury could exer-
cise, its resolution against Daley is not contested herein.
22
eration and subject to applications not envisioned by the
Founding Fathers, statutes enacted by Congress are not as
flexible. Rather, they are static and must be applied only
as intended by the framers of each specific piece of legis-
lation.
The Hobbs Act was enacted “.. . . simply to prevent both
union members and non-union people from making use of
robbery and extortion under the guise of obtaining wages
in the obstruction of interstate commerce . . .” (see remarks
of Congressman Hancock in 91 Cong. §11900 cited with
approval by the Supreme Court in United States v. En-
mons, 410 U.S. 396, 93 S.Ct. 1007, 1011 (1973). However,
as often happens when Congress passes criminal legislation
to eradicate a specific societal evil, Congress utilized very
broad language to facilitate the effective application of
the statute in an attempt to cover all of the possible ills
which it intended to correct. Unfortunately, this overbroad
language of the Hobbs Act has been seized upon by over-
zealous federal prosecutors to bring essentially state viola-
tions within the jurisdiction of the federal courts——a result
which was unintended by the Congress which enacted the
Hobbs Anti-Racketeering Act.
Recenty, however, several courts have re-examined the
limited seope of the Hobbs Act. The Supreme Court in
United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007
(1973), found that the Hobbs Act does not reach violence
committed during a lawful strike for the purpose of induc-
ing an employer’s agreement to legitimate collective bar-
gaining demands. After examining the legislative history
of the Act, the Court reasoned that:
“it would require statutory language much more ex-
plicit than that before us here to lead to the conclusion
that Congress intended to put the Federal Govern-
23
ment in the business of policing the orderly conduct
of strikes. Neither the language of the Hobbs Act nor
its legislative history can justify the conclusion that
Congress intended to work such an extraordinary
change in the federal labor law or such an unprece-
dented incursion into the criminal jurisdiction of the
States.” 400 U.S. at 411, 93 S.Ct. at 1015.
Relying on Enmons and further examining legislative
history, both the Sixth and Ninth Circuits have very re-
cently held that conduct, to be violative of the Hobbs Act,
must come under the rubric of “racketeering”. Therefore,
activities which fall within the literal language of the stat-
ute will not be held to violate the law unless the activities
constitute a form of racketeering.
Thus the Sixth Circuit, in United States v. Yokley, 542
F.2d 300 (6th Cir. 1976), held that the mere armed robbery
of a discount store failed to charge “racketeering” under
the Hobbs Act, but rather charged activity within the
exclusive criminal jurisdiction of the State of Michigan.
The court postulated that if the Hobbs Act encompassed
the mere robbery of a business engaged in interstate com-
merce:
“the robbery of a corner grocery store, pharmacy or
gasoline service station, without more, would be a fed-
eral offense. The offense of armed robbery, tradition-
ally a matter of concern under state criminal laws,
would become a matter within the responsibilities of
the United States Attorneys and the federal courts.
The legislative history of the Hobbs Act and its prede-
cessor statute demonstrate to our satisfaction that no
sweeping result was intended by Congress.” 542 F.2d
at 304.
24
Therefore, the court coneluded:
“although an activity may be within the literal lan-
guage of the Hobbs Act, it must constitute ‘racketeer-
ing’ to be within the perimeters of the Act.” Id.
Similarly, the Ninth Circuit, in United States v. Culbert,
048 F.2d 1355 (9th Cir. 1977), cert. grtd. —~— US.
(Oct. 5, 1977), has
“adopted the reasoning of the Sixth Circuit’s eminently
sensible opinion. ... [A] contrary interpretation of
the Act would justify federal usurpation of virtually
the entire criminal jurisdiction of the state. Consid-
eration of federalism, apart from the legislative his-
tory also emphasized in Yokley, cannot permit a con-
clusion that Congress intended to work such an
extraordinary and unprecedented encroachment into
the state sovereignty.” 548 F.2d at 1357.
Thus the attempted extortion by defendant of $100,000 in
bank assets by means of telephoned threats of physical
violence were held to be unrelated, in any way, to “racket-
eering” and, therefore, not within the scope of the Hobbs
Act.
Indeed, Chapter 95 of Title 18 of the United States
Code, which encompasses, inter alia, the Hobbs Act and the
Travel Act, is entitled “Racketeering”,
The acts purportedly proven in the present case—
namely, the receipt of materials and labor for a vacation
home from union employers and employees who custom-
arily helped one another out—are clearly not “racketeer-
ing” within the scope of the Hobbs Act. Testimony was
given at the trial by various union members that on numer-
ous occasions they had given or received assistance with
respect to home improvement projects and by Mr. Greene,
25
the general manager of Hudson Cement, that they fre-
quently made donations as a “community relations” ges-
ture.
To paraphrase the words of the Sixth Circuit, to inter-
pret $1951 to apply to the instant alleged activities “as
urged by the Government, would encompass literally any
[extortion] occurring in any state”, United States v. Yok-
ley, supra, at 304. “No such sweeping result” could have
been intended by Congress. Id. at 305. The alleged activi-
ties are, in fact, under the exclusive jurisdiction of the
State of New York. See, N.Y. Penal Law §155.40 (McKin-
ney 1975).
Moreover, the theme of federalism with respect to the
Hobbs Act, which runs through the decisions in Enmons,
Yokley and Culbert, has not been totally ignored by the
Second Circuit. In United States v. Merolla, 52° F.2d 51
(2d Cir. 1975), for example, the Court of Appeals found
the effect of defendant’s acts upon interstate commerce
insufficient to warrant converting another locally prose-
cutable offense into a federal Hobbs Act violation.
More recently, in United States v. Brecht, 540 F.2d 45
(2d Cir. 1976), the Second Circuit affirmed that portion of
an Eastern District judgment involving Hobbs Act viola-
tions but strongly questioned the advisability of stretching
the Act to meet modes of conduct only marginally related
to the theme of Congressman Hobbs’ bill. See United
States v. Brecht. supra, at 52 n.14. Judge Gurfein recog-
nized that “the main purpose of Congress in enacting the
Hobbs Act was to combat labor racketeering”. Jd. at 51.
The activities which are normally prosecuted under the
Hobbs Act are those which are “the familiar tools of or-
ganized crime”. 7d. at 52.
In no sense can the alleged activities in the instant case
be classified under the heading of organized crime. A
26
single incident involving the receipt of labor and supplies
to be used in the construction of a driveway at a vacation
home has no more connection with organized crime than
does the robbery of a discount store. The coverage of the
Hobbs Act should not be expanded to trespass upon tradi-
tionally state ground. The act alleged in the instant in-
dictment constitutes, at best, a violation of the state’s ex-
tortion statute. See N.Y. Penal Law, §155.40 (McKinney
1975). To hold otherwise would constitute judicial sanc-
tion of a federal “power grab” in viciation of the sover-
eignty of the State of New York. Such a course should
not be followed.
B. The Trial Evidence Was Legally Insufficient to Establish
Any Effect on Interstate Commerce as Required by the
Hobbs Act.
It is axiomatic that in order to constitute a violation
under the Hobbs Act, an activity must have an effect upon
interstate commerce. Stirone v. United States, 361 U.S.
212, 80 S.Ct. 270 (1960). “The charge that interstate com-
merce is affected is critical since the Federal Government’s
jurisdiction of this crime rests only on that interference.”
Id. at 218, 80 S.Ct. at 274.
The de minimus rule with respect to interstate com-
merce (see United States v. Shackelford, 494 F.2d 67 (9th
Cir.), cert. denied, 417 U.S. 934, 94 S.Ct. 2647 (1974)), has
prompted satisfaction of the interstate commerce require-
ment under the so-called “depletion of assets” theory.
United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc),
cert. denied, U.S. , 96 S.Ct. 446 (1975). The Third
Circuit’s position is that:
“where the resources of an interstate business are de-
pleted or diminished ‘in any manner’ by extortionate
payments, the consequent impairment of ability to con-
_— ————
27
duct an interstate business is sufficient to bring the
extortion within the play of the Hobbs Act.” Jd. at 642.
While recognizing the “depletion of assets” theory, the
Second Circuit has narrowed the scope of its application.
In United States v. Merolla, 523 F.2d 51 (2d Cir. 1975),
the court stated:
“Where the victim of an extortion scheme custom-
arily obtains supplies through interstate commerce,
the diminution of the victim’s resources impairs his
purchasing power and may therefore be found to affect
interstate commerce for the purpose of the Hobbs
Act....
“The victim’s purchase of interstate goods, however,
must be of a continuing nature, or the relationship
between the extortion and any interstate commerce
becomes merely conjectural.” Jd. at 54.
Merolla involved a contract to build a car showroom for
defendant McNamara. Goberman, the general contractor
and alleged victim of the extortion, engaged various sub-
contractors to supply materials and labor. With respect to
the interstate commerce element, the evidence adduced at
trial showed that (1) pursuant to a contract between
Goberman (the victim) and Merkel Electric Co. for the
installation of lighting apparatus, electrical supplies were
delivered to the job site from out of state; (2) steel joists
and steel roof decking were shipped interstate to the job
site in satisfaction of orders which Goberman placed with
Fiberproof Products, Inc.; (3) in fulfillment of an agree-
ment between Goberman and Warren Brody for the in-
stallation of garage doors, doors were delivered to the job
site from their place of manufacture in New Jersey; and
(4) new automobiles which (defendant) McNamara sold at
28
the completed showroom were assembled in other states
and transported into New York. Id. at 54.
Despite these facts, the court in Merolla held that the
Government had failed to establish the requisite interfer-
ence with interstate commerce and, accordingly, reversed
the Hobbs Act conviction and remanded with instructions
to dismiss the indictment.
Similarly, in the instant case, even when the trial evi-
dence is construed in the light most favorable to the Gov-
ernment (see Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457 [1942]), it is patently clear that the conduct
of Petitioner and his alleged co-conspirators had an insuffi-
cient impact on interstate commerce to warrant displace-
ment of an inherently local prosecution by federal law
enforcement agencies,
In the present case, Petitioner was convicted for al-
legedly extorting the use of manpower and trucks from
union employees to transport materials obtained from union
employers. The Government established at trial, in an
attempt to satisfy the interstate commerce aspect of the
Hobbs Act charges, the following: (1) that Local 445 had
business dealings with the International Brotherhood of
Teamsters (IBT) which is located in Washington, D.C.;
(2) that the trucks used to transport the materials and
the gas used to run the trucks were purchased from com-
panies involved in interstate commerce; (3) that the truck
drivers who transported the materials happened to be
engaged with the construction of a highway; and (4) that
Hudson Cement, who supplied the stone, shipped cement
out of New York State, although it rarely shipped stone
to other than New York City.
Any affect on interstate commerce by the just-mentioned
factors is so farfetched and speculative as to be less than
29
the conjectural affect established in Merolla. If a Hobbs
Act conviction can be sustained on such a weak foundation
with respect to the interstate commerce requirement, local
prosecution of the crime of extortion can be subsumed at
the whim of federal prosecutors.
The connection between the IBT and this case is so re-
mote as to be non-existent. The alleged extortion occurred
because of defendant Daley’s position with Local 445. That
Daley may have extorted materials and labor for a vaca-
tion home has absolutely no impact on dealings between
the local and the IBT.
Virtually all motor vehicles and gasoline are produced
in interstate commerce, Allowing a conviction under the
Hobbs Act because the trucks used to transport the stone
and timbers and the gas used to run the trucks were pur-
chased from interstate concerns would turn any extortion
into a federal case if a motor vehicle becomes involved.
Such a result is absurd.
The fact that the drivers who transported the stone to
Mr. Daley’s upstate property happened to be engaged in
the construction of an interstate highway also has a less
than remote connection with interstate commerce. The
transportation of stone took place after hours and on week-
ends. What the drivers do on their free time is their own
personal business. That they may have been victims of
extortion during this free time should not be elevated to
a Hobbs Act violation simply because their jobs entailed
interstate activities.
Finally, although Hudson Cement shipped some cement
out of state, Mr. Greene, Hudson’s general manager, testi-
fied that they shipped “practically all” of their stone to
New York City. Under Merolla, supra, the relationship
between the alleged extortion and interstate commerce be-
30
cause of these small, irregular shipments becomes merely
conjectural.
Due to the conjectural nature of the effect which the
alleged extortion had on interstate commerce, it is incum-
bent that the convictions under Counts I and II involving
the Hobbs Act be reversed and the indictments dismissed.
Alternatively, if any one of the allegedly extortionate
activities—namely, the extortion of the trucks, the truck
drivers, the gas, the stone and the timbers—is found to
have had no effect on interstate commerce, the Hobbs Act
convictions should be reversed. This result is mandated
because the Government submitted these separate extor-
tions under one conspiracy count and one substantive count.
It is possible that the jury found extortion with respect to
one activity, e.g., the stone, but not with respect to all the
activities. Therefore, if the interstate commerce aspect is
insufficient to support a conviction of any one of the al-
leged extortions, it is respectfully submitted that Counts
I and IT of the conviction should be reversed.
C. The Trial Evidence Was Legally Insufficient to Establish
Reasonable Fear as Required by the Hobbs Act.
As indicated in United States v. Rastelli, 551 F.2d 902
(2d Cir, 1977), cert. den., USS. (22 Cr.L. 4016
October 3, 1977), a conviction under the Hobbs Act for
extortion by fear must be founded on “reasonable fear in
,99
the mind of the ‘victim’ ”.
However, when the trial evidence is considered in the
light most favorable to the Government, it is still obvious
that it was neither fear created or knowingly and inten-
tionally capitalized upon by defendant Daley which moti-
vated the drivers and employers to volunteer goods and
services for the Windham camp.
31
Paramount in this respect is the proven fact that Daley
never made any threats to any of the drivers or employers.
Nor was there evidence that he had even threatened others
in any prior or subsequent incidents. Moreover, it is signifi-
cant that more than one driver refused to participate when
asked by Alecca and Clausi. Nevertheless, no retribution
was forthcoming against those who did not take part.
There was also evidence of a cash payment of $100 to $800
by Daley to Alecca for distribution to the drivers for their
services. Finally, in light of the local custom of union
members in aiding one another on home improvement proj-
ects and the custom of Hudson Cement in donating mate-
rials as a community relations gesture—e.g., they donated
material for a driveway at the union hall—it is clear that
the reasonable fear envisioned by the Hobbs Act was not
present in this case.
Accordingly, the guilty verdicts on the Hobbs Act counts
should be set aside.
POINT II
The Government’s Failure to Competently and In-
dependently Establish a Conspiracy as a Condition Pre-
cedent to Its Use of Conversations of Alecca and Clausi
Requires Dismissal of Count I. The Consideration of
Their Testimony as Evidence in Chief Was Evidentiary
Error.
Theodore G. Daley stands convicted of Hobbs Act viola-
tions not because of wha‘ he said or did, but rather be-
cause of the words and deeds of Anthony Alecea and
Thomas Clausi, men whom the Government has character-
ized as co-conspirators such that their statements, both
amongst themselves and, most important, those utterances
to the suppliers of materials and trucks and the truck
32
drivers who were asked to drive to Daley’s Windham camp,
would be admissible against Daley. The defense posture
throughout the case was an emphatic denial that Daley
entered such a conspiracy to extort materials for use at
the Windham camp or the use of trucks and drivers to
haul that material up the mountain from Kingston.
Rather, the defense contended that the materials were
brought to Windham because the drivers freely volun-
teered* their services, and the drivers of the denoted
materials regarded them as essentially useless waste
products.**
Furthermore, if pressure was brought to bear, it was,
the defense contended, the independent voluntary decision
of Alecea and Clausi*** to apply it, and not due to any
agreement, understanding or acquiescence of Daley.
In this context the question whether the Government in-
dependently established a criminal agreement to extort
materials from teamster employers and driving services
from teamster drivers was the paramount issue upon which
the case turned.
The defense strenuously objected to the admission of the
otherwise hearsay conversations of Alecca and Clausi,
—
* Daley contended, without contradiction, that he gave Alecca
$700-800 in cash for transmittal to the drivers. This money appar-
ently never made it past Alecca because the drivers did not receive
any money.
** Daley had asked for screening for use in building a driveway
and damaged highway road dividers from a State thruway job.
*** In the time period in question, 1971, Alecea was President of
Local 445 and a business agent. Clausi was a shop steward em-
ployed by the Callanan Road Improvement Company. Each had
a separate image and identity from that of Daley to independently
demand material with a sense of credibility and/or “throw Daley’s
name around” by attributing a potential for harm or retribution
if cooperation was denied but which never existed.
33
claiming there was insufficient evidence independent of the
words and deeds of the alleged co-conspirators to estab-
lish that a criminal agreement existed (see United States
v. Geaney, 417 F.2d 1116 (2d Cir. 1969) ) sufficient to permit
the testimony to be received under the co-conspirators ex-
ception to the hearsay rule. See Federal Rules of Evi-
dence, Sec. 801(d)(2); Dutton v. Evans, 400 U.S. 74, 91
S.Ct. 210 (1970). Ineed, we contend that the trial record
is barren of any evidence, independent of the declarations
of Alecca and Clausi, from which evidence of a conspiracy
might be found.
We are mindful that the rule in the Second Circuit as
established in United States v. Stanchich, 550 F.2d 1294
(2d Cir. 1977), is that the Government bears a lesser
burden (i.e., by the preponderance of the evidence) in
establishing the existence of a conspiracy for the eviden-
tiary purpose of introducing evidence under the co-conspi-
rators rule than it does ultimately in attempting to sus-
tain a court’s ruling submitting a conspiracy count to the
jury. See United States v. Stanchich, supra, p. 1299. This
standard is, of course, in derogation of the standard man-
dated in United States v. Nixon, 418 U.S. 683, 94 S.Ct.
3090, 3104 n. 14 (1974), wherein this Court required that
the independent evidence be sufficient to take the ques-
tion to a jury, not merely by a preponderance of the evi-
dence. Such direct conflict between the Second Circuit and
the other federal circuits, as well as the highest court
in the land, alone raises a question of law worthy of re-
view by this Court.
It is elementary, of course, that to constitute a conpiracy
there must be an agreement or meeting of the minds, and
unless the parties actually do agree to engage in particular
conduct, there is no conspiracy. See United States v.
Falcone, 311 U.S. 205, 210 (1904); United States v. Rosen-
34
blatt, 554 F.2d 36 (2d Cir. 1977). Thus, even if Alecca and
Clausi believed Daley desired free materials and trucking
services, but Daley himself, as the uncontradicted testi-
mony shows, wanted waste material and volunteer drivers,
then as a matter of law there could be no conspiracy be-
cause there was no agreement as to the essential nature
of the plan. Where the alleged co-conspirators have dif-
ferent understandings and act with distinctive mens rea,
a conspiracy, as herein, to violate the Hobbs Act may not
be found. See United States v. Rosenblatt, supra, p. 41.
Such was the case herein. Thus Judge Lasker erred when
he held that a proper basis was established sufficient to
permit the jury to consider the hearsay statements as
evidence in chief.
A. The Submission of the Conspiracy Count to the Jury.
Even assuming arguendo that this Court is persuaded
a proper basis existed sufficient to sanction Judge Lasker’s
ruling that the hearsay testimony of Alecca and Clausi
should be considered by the jury, such approval does not
foreclose review of the Court’s denial of defense counsel’s
request not to submit the Hobbs Act conspiracy count to
the jury. Indeed, United States v. Stanchich, supra, p.
1299, admonishes the trial bench that not only are two
distinctive rulings involved, but emphasizes that an appre-
ciably higher standard must be applied to a defendant’s
motion to prohibit submission of the conspiracy count to
the jury.
In the latter case the standard is:
“(Whether upon the evidence, giving full play to
the right of the jury to determine credibility, weigh
the evidence, and draw justifiable inferences of fact,
a reasonable mind fairly conclude guilt beyond a rea-
sonable doubt.”
35
See United States v. Taylor, 464 F.2d 240, 243 (2d Cir.
1972) ; United States v. Stanchich, swpra, p. 1299.
In contending, as we do, that sufficient evidence estab-
lishing a conspiracy to violate the Hobbs Act was not pro-
duced, we are not asking this Court to substitute its judg-
ment on questions of fact or matters of credibility. Rather,
we contend, applying the Taylor standard, that there was
simply insufficient evidence to warrant submission of the
Count to the jury. Such submission was clear error war-
ranting review by this Court.
POINT Ill
Because of the Court’s Status as the Trial Judge in
a Prior Proceeding Wherein the Court Passed Upon
the Credibility of Raymond Ebert and Theodore G.
Daley and Found Against Local 445, the Court Should
Have Recused Itself.
Because the Honorable Morris E. Lasker has previously
been required to pass upon the credibility of key defense
witness Raymond Ebert, the defendant Theodore G.
Daley specifically, and the general operations of Local 445
generally, it was necessary that the Court recuse itself
from presiding further in the trial of this case. Under
these circumstances, recusal was required as a matter of
law, as an exercise of judicial discretion in order to
assure the fair and impartial trial guaranteed to Mr. Daley
by the Constitution (Amend. V, VI and XIV), and as re-
quired by the Code of Judicial Conduct. The Canons of
Judicial Ethics strongly suggest that a judge who finds
himself in this posture disqualify himself.
The first canon states that the Code’s provisions are to
be construed in accordance with the highest standards of
judicial conduct. These standards further mandate that a
36
judge “avoid impropriety and the appearance of impro-
priety in all his activities” and “perform the duties of his
office impartially and diligently”.
It is respectfully urged that the high standards for judi-
cial performance as set forth by the Code were not met
since his Honor presided at the trial of defendant Daley.
In light of the nature of the relationship between this
Court and defendant Daley and the witness Ebert arising
out of a prior civil litigation involving union activity
scarcely a year prior to the occurrence of the acts charged
in the indictment, coupled with Judge Lasker’s fact-finding
in conjunction thereto, the appearance of a lack of impar-
tiality may be viewed by many.
By mandating a Judge’s disqualification in such a situ-
ation, the Code lends support to the better-reasoned view
that just as justice must be maintained by the judiciary,
so must the appearance of justice and the absence of pre-
judgment. Offutt v. United States, 348 U.S. 11 (1954) ;
Berger v. United States, 225 U.S. 21, 34-35 (1921); Mitch-
ell v. Strtca, 502 F.2d 375, 381-382 (MacKinnon, J., dis-
senting) ; Hotry v. Lavine, 553 F.2d 845, 851 (2d Cir. 1977) ;
Whitaker v. McLean, 118 F.2d 596 (D.C. Cir. 1941); J.
MacKenzie, The Appearance of Justice, 241 (1974).
In addition to the Fifth Amendment and the Sixth
Amendment rights to a fair trial and the provisions of the
Code of Judicial Conduct, federal statute provides for the
disqualification of a judge for bias or prejudice or by rea-
son of his interest in the parties or the proceedings. Title
28, U.S.C. Section 455 (1970) provides:
“Any justice or judge of the United States shall dis-
qualify himself in any case in which he has a sub-
stantial interest, has been of counsel, is or has been
a material witness, or is so related to or connected
37
with any party or his attorney as to render it improp-
er, in his opinion, for him to sit on the trial, appeal
or other proceeding therein.”
Title 28, U.S.C. Section 144 (1970), which provides for
the disqualification for bias or prejudice of the judge,
states in pertinent part:
“Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a per-
sonal bias or prejudice either against him or in favor
of any adverse party, such judge shall proceed no
further therein, but another judge shall be assigned to
hear such proceeding.” (Emphasis supplied.)
Although the courts have not been uniform in their in-
terpretation of the above statutes, it is the better-reasoned
approach to construe them with due regard for their under-
lying purpose, i.e., the protection of the accused’s consti-
tutional right to a fair trial before a neutral and detached
judge. This purpose necessarily contemplates the main-
tenance of the appearance as well as the actual existence
of impartiality on the part of the judge. Commonwealth
Coatings Corp. v. Continental Casualty Co., 393 U.S. 145
(1968); In re Murchison, 349 U.S. 133 (1955); Offutt v.
United States; Tumey v. Ohio, 273 U.S. 510 (1927) ; Berger
v. United States, supra; Mitchell v. Sirica, supra; Note,
Disqualification of Judges for Bias in the Federal Courts,
79 Harv.L.R. 1435 (1966); Note, Disqualification of a Fed-
eral District Judge for Bias—The Standard Under Section
144, 57 Minn.L.R. 749, 760-762 (1973).
In denying defendant’s application for a mistrial and
motion for recusal, the Court leaned heavily upon the fact
that its status in the prior civil matter was a matter of
38
public record and, hence, the grade school educated Daley
had waived any basis for recusal by not moving pre-trial
on this basis. At the same time, the Court found as a fact
that defense counsel was unaware of this prior proceeding.
We submit that where a defendant becomes aware* of
the fact that his trial judge had a prior involvement with
himself and his enterprise and the criminal trial focuses
upon the defendant’s conduct as a leader of the enterprise,
it cannot be said that the lay defendant has waived his
right to request recusal of the trial court.
In so contending, we do not mean to suggest that a re-
cusal motion can never be waived. Thus, in Galella v.
Onassis, 353 F.Supp. 196 (S.D.N.Y. 1972), aff'd in part,
rev'd im part, 487 F.2d 986 (2d Cir.), Judge Cooper prop-
erly ruled that a recusal motion was untimely because the
proffered grounds were informally raised by movant a
month prior to trial and no motion was filed.
Similarly in United States v. Civella, 416 F.Supp. 676,
680 (W.D.Mo. 1975), the trial court found, inter alia, that
counsel had actual knowledge of the facts for a consider-
able period and yet did not file his motion. In the case at
bar, of course, the Court found that defense counsel had
no awareness of the facts until the crucial side bar con-
ference.
Concededly, in Hirschkop v. Virginia State Bar Associa-
tion, 406 F.Supp. 724 (E.D. Va. 1975), the Court held that
a recusal motion was untimely made because the informa-
tion underlying the motion was “known or knowable” at
a much earlier time than when the motion was filed. It is
important to note that petitioner was an attorney and the
* The Government’s awareness of the Court’s status and its at-
tempt to affirmatively utilize the Court’s prior findings were the
moving force prompting defense counsel’s recusal motion.
39
standard to which he personally would be held to is and
should be higher than that of Daley, who had minimal
formal education and to whom the Court’s identity would
not have struck a responsive chord.
Likewise, in Johns Hopkins University v. Hutton, 316 F.
Supp. 698 (D. Md. 1970), the lack of timeliness contributed
to denial of recusal, but importantly because the motion
was not filed until May 12, 1970 and was dependent, in
part, on facts previously alleged in a prior affidavit filed
on July 31, 1969 and related to facts known or knowable
as early as February 3, 1967. When such a factual hiatus
is compared to the promptness with which defense counsel
moved in the case at bar, it is clear that its holding vis-a-vis
timeliness is distinguishable.
Similarly the decision in Smuck v. Hobson, 408 F.2d 175,
183 (D.C. Cir. 1969), which upheld former District Judge,
now Court of Appeals Judge J. Shelly Wright’s decision
not to recuse himself in a civil quality of education case
where the recusal allegations were based upon prior pub-
lished legal philosophy and claimed improper remarks by
the Judge, from the bench, two weeks prior to the filing
of the motion. Once again, the facts are clearly distin-
guishable from both the basis and dispatch with which de-
fense counsel moved.
The true rule appears to be that the question of timeli-
ness for a refusal motion raises a question of degree, and
that timeliness must be asserted after actual knowledge of
the allegations for disqualification are ascertained. See
Satterfield v. Edenton-Chowan Board of Education, 530
F.2d 567, 574-575 (4th Cir. 1975); United States v. Patrick,
542 F.2d 381, 390 (7th Cir. 1976).
It is clear that the cases relied upon by the District Court
as its basis for denying the recusal motion (T-1270-1271)
40
are factually distinguishable, and neither mandated nor
suggested the result adopted by the Court.
Under the facts of the case at bar, the interest of avoid-
ing the appearance of bias and injustice clearly outweighed
the small inconvenience that reassignment to another judge
in a multi-judge district would have placed upon the expe-
ditious administration of justice.
Accordingly, and in light of the Court’s status as the
Judge in a prior civil labor case involving the defendant
in the case at bar and a vital defense witness, the District
Court erred in failing to disqualify himself from further
presiding at the trial and in not declaring a mistrial. Cer-
tainly, at the very least, the Court was obligated to follow
28 U.S.C. 144 and await a determination by a brother Dis-
trict Judge on the merits of the recusal application. This
failure to refer, as well as the ultimate determination of
the recusal application, were errors requiring a vacatur of
the judgment and a new trial.
Because this Court has not passed upon the applicability
of 28 U.S.C. 455(a) to the facts of a criminal case, the
case at bar provides a satisfactory fact pattern for such
a decision. Indeed, the absence of an authoritative opin-
ion by this Court in this area is particularly vital to afford
guidance for all federal trial judges.
41
CONCLUSION
For the reasons stated, we respectfully pray that a writ
of certiorari issue to review the judgment of the United
States Court of Appeals for the Second Circuit and pair
this case for oral argument with United States v. Culbert,
77-142.
Respectfully submitted,
Gustave H. NewMan
522 Fifth Avenue
New York, New York 10036
(212) 682-4066
Attorney for Petitioner
Theodore G. Daley
Rocer BENNET ADLER
Of Counsel
APPENDIX
Appendix A—Opinion of United States Court of Appeals
UNITED STATES COURT OF APPEALS
For tHe Sgeconp Crrcuir
-—_ =
——-
No. 4—September Term, 1977.
(Argued September 27, 1977 Decided October 20, 1977.)
Docket No. 77-1262
oe
| Unrrep States or America,
Appellee,
Tueopore G. Datey,
Defendant-Appellant.
Before:
Moore, Fersperc and MUuLLIGaAN,
Circuit Judges.
-_ ==
—s
Appeal from judgments of conviction entered in the
United States District Court for the Southern District of
New York, Morris E. Lasker, Judge, after a jury trial, for
violations of the Hobbs Act, 18 U.S.C. $1951, and the
Landrum-Griffin Act, 29 U.S.C. §186(b)(1), (d).
Affirmed.
+o
KennetH V. Hanna, Assistant United States
Attorney (Robert B. Fiske, Jr., United
States Attorney for the Southern District
of New York, Frank H. Wohl, Frederick
T. Davis, Asst. United States Attorneys, of
Counsel), for Appellee.
la
2a
Appendix A—Opinion of United States Court of Appeals
Gustave H. Newman, New York, New York
(Roger Bennet Adler, New York, New York,
of Counsel), for Defendant-A ppellant.
= ==
——
Muuuiean, Circuit Judge:
Theodore G. Daley appeals from judgments of conviction
entered in the United States District Court for the South-
ern District of New York after a three-week trial before
the Hon. Morris E. Lasker, District Judge, and a jury. The
indictment which was filed on August 3, 1976 contained one
count charging Daley with conspiracy to violate the Hobbs
Act’ and another count charging him with extortion, a sub-
stantive violation of the Hobbs Act, 18 U.S.C. § 1951. The
indictment also charged Daley, a union official, with five
counts of accepting guods and services from employers of
union members in violation of the Landrum-Griffin Act, 29
U.S.C. § 186(b)(1), (d). The jury found Daley guilty on
all seven counts on March 10, 1977. Judge Lasker sus-
pended the imposition of sentence on all counts and placed
Daley on probation subject to special conditions for three
years. He also fined Daley $5,000 on each of the five
Landrum-Griffin Act violations. The defendant has not ap-
pealed from the judgments of conviction on these five counts
but has limited his appeal to the convictions under the
Hobbs Act contained in the first two counts of the indict-
ment.’
1 Anthony Alecca, Jr. and Thomas Clausi were named as unindicted co-
conspirators in the indictment.
2 Under the concurrent sentence doctrine as a matter of discretion this
court could refuse to review the validity of the convictions in a multi-
count indictment when the conviction on one count was proper and con-
current sentences have been imposed, Benton v. Maryland, 395 U.S. 784,
787-91 (1969); United States v. Beverly, Dkt. No. 76-1393, slip op.
at 6047 (2d Cir. Sept. 19, 1977). Here Daley has not appealed his con-
victions of the five disdemeanor counts and concurrent sentences have
3a
Appendix A—Opinion of United States Court of Appeals
I
Since 1956 the appellant Daley has been Secretary-
Treasurer, or principal officer, of Teamsters Local 445
(Local) which has several thousand members and a terri-
torial jurisdiction which embraces the counties of West-
chester, Putnam, Dutchess, Rockland, Ulster, Orange and
Sullivan in the State of New York. The evidence presented
by the Government indicated that in the summer of 1971
Daley requested Anthony Alecca, Jr., the President and
number two officer of the Local, to obtain for him some
stone for the purpose of constructing a driveway for
Daley’s camp or mountain cabin in Windham, New York.
Alecea then approached Thomas Turco, who was a super-
intendent for Hudson Cement in Kingston, New York, and
requested approximately ten loads of stone for Daley’s use.
Turco in turn discussed the matter with his superior Rob-
ert Greene, general manager of Hudson Cement, an em-
ployer which was then in contract negotiations with Local
445. Greene decided to provide Daley with a couple of
loads of stone in order to avoid any union problems. Daley
was then advised through Alecca that Hudson Cement
would supply the stone. The next step was to obtain the
equipment and personnel for the project. Alecca instructed
Thomas Clausi, the Local 445 shop steward on a project
to repair the New York State Thruway near Kingston, to
been imposed. However, both the appellant and the Government agree
that the doctrine should not apply where it may involve possible adverse
collateral effects upon the appellant. Benton v. Maryland, supra, 395
U.S. at 790 and n.5 (1969). Here the convictions under the Hobbs Act
are felonies which create a number of penalties under State law not
invoked against those who are found guilty of misdemeanors. In addi-
tion, Daley's convictions under the Hobbs Act clearly bar him from
serving as an official of a labor union for a specified period. 29 U.S.C.
$504. Whether the misdemeanor convictions under Landrum Griffin
would create a similar bar is not settled and we take no position op
that issue.
da
Appendia A—Opinion of United States Court of Appeals
arrange for the trucks and truckers. Alecca told Clausi
to have two Local 445 owner-operators provide dump
trucks and drivers to load and haul the stone after work-
ing hours. Eventually, stone was delivered to Daley’s
cabin on three separate occasions. September 3, 4 and 11,
1971.
In all, thirty to thirty-six truck loads of stone totalling
about 600 tons were delivered by union drivers to Daley’s
cabin. Some ten to fifteen ten-wheel dump trucks, a tractor
trailer and other equipment supplied by Local 445 owner.
operators and contractors who employed union members
were used to make the deliveries. The stone was then sell-
ing at a delivered price of nine dollars per ton at Wind-
ham, which was 60 miles distant from Kingston where the
stone was located. On none of these trips were the drivers
paid for their labor or the truck owners for the use of their
equipment or fuel.* Hudson Cement received no reimburse-
ment for the stone it supplied.
The recerd amply demonstrates that Daley was fully
aware of the arrangement, directed where the stone was
to be placed and was insistent that sufficient stone be de-
livered to satisfy his needs.
Clausi testified that in making the arrangements for
the stone deliveries he was just following orders. He also
testified to his belief that if he or the union members had
refused to make the hauls they would not have received
work. One owner-operator testified that he made a de-
livery to insure his job. Another, Robert Kozlowski, testi-
fied that he agreed to the hauls so that his drivers would
3 There was testimony that in the Kingston community where most of
the drivers lived it was not unusual for Local members to lend their
trucks to close friends for short hauls of two or three miles. Daley,
however, lived in Wappingers Falls, thirty miles from Kingston. He was
not a member of the local community nor was he personally acquainted
with the drivers.
oa
Appendix A—Opinion of United States Court of Appeals
not lose work. Kozlowski further testified that in March,
1974, after the investigation into this matter had begun,
Daley told Kozlowski that he could put Kozlowski’s four
trucks to work but would not do so. Several Local 445
drivers also testified that they made deliveries only be-
cause Clausi threatened that they would lose their jobs
if they refused.
In addition to the stone, Daley later advised Clausi
that he needed some twelve-inch by twelve-inch wooden
beams. Clausi secured some twenty to twenty-five painted
beams from the Maggiola Construction Company. The
beams were hauled to Daley’s cabin from Pearl River,
some sixty miles south of Kingston, by an employee of
Callanan Industries, the contractor on the Kingston Thru-
way job. The employee was paid for his services by
Callanan. An additional twenty-two beams costing $34 to
$35 each were provided by Callanan Industries and were
delivered to Daley’s cabin by a Local 445 driver on Cal-
lanan’s payroll. Daley again had instigated the delivery
of the beams and had helped unload one shipment. No
payment was made for the beams.
Daley testified in his own defense, taking the position,
in substance, that the stone delivery was Alecca’s idea
and that he believed the stone was waste material. He
further testified that the delivery of the beams was a com-
plete surprise and that he kept them at Alecca’s request.
Daley denied that he asked Clausi for additional stone
after the first delivery on September 3, and claimed that
he paid Alecca $700 or $800 to distribute among the truck
drivers.
Daley also called a number of witnesses. Chester Davis,
the current President of the Local, testified that he over-
heard a conversation between Daley and Alecca concern-
ing the trucking of material to Windham, during which
6a
Appendix A—Opinion of United States Court of Appeals
discussion Daley gave Alecca money. Raymond Ebert,
another union official, testified that although Daley was the
union boss he did not control which union members worked.
One Local owner-operator and three of his drivers testi-
fied that they made the deliveries to Daley’s cabin without
fear of reprisal if they did not participate. Two of these
witnesses testified that the material they delivered to the
cabin was waste although this was contradicted by their
prior testimony before the Grand Jury.
Clearly the evidence at trial presented issues of credi-
bility which the jury resolved adversely to the defense.
II
On this appeal Daley argues that the trial evidence was
legally insufficient to establish a Hobbs Act violation.
A. The first contention made by the appellant is that
the acts alleged and proven at the trial had insufficient
impact on interstate commerce to fall within federal! juris-
diction. We commence with the premise that the Hobbs
Act “speaks in broad language, manifesting a purpose to
use all the constitutional power Congress has to punish
interference with interstate commerce by extortion, rob-
bery or physical violence.” Stirone v. United States, 361
U.S. 212, 215 1960).
The pertinent language of § 1951(a) is indicative of the
congressional intent. “Whoever in any way or degree
obstructs, delays, or affects commerce or the movement of
any article or commodity in commerce, by robbery or ex-
tortion ...” is in violation of the Act (emphasis added).
Construing this language, this court has held that “[s]tated
differently, extortion or threats of violence need affect in-
terstate commerce only in a minimal degree to constitute
a violation.” United States v. Tropiano, 418 F.2d 1069, 1076
(2d Cir. 1969), cert. denied, 397 U.S. 1021 (1970). “[I]t
7a
Appendix A—Opinion of United States Court of Appeals
is enough that the extortion in any way or degree [citation
omitted] affects [interstate] commerce, though its effect
be merely potential or subtle.” United States v. Augello,
451 F.2d 1167, 1169-70 (2d Cir. 1971), cert. denied, 405 U.S.
1070 (1972). Furthermore, it is not necessary that the
purpose of the extortion be to affect interstate commerce.
United States v. Varlack, 225 F.2d 665, 672 (2d Cir. 1955).
It is sufficient that one of the natural effects of the offense
is an obstruction of that commerce. United States v. Ad-
donizio, 451 F.2d 49, 77 (3d Cir.), cert. denied, 405 U.S.
936 (1972).
Here the victims of Daley’s scheme of extortion were
workers and contractors on the New York Thruway, a major
artery of interstate commerce. The threats which forced
compliance were the loss of continued opportunities to work
on that interstate highway. The jurisdictional requirement
of the Hobbs Act has been held to be satisfied merely by
the exaction of tribute from local contractors erecting facil-
ities to serve an industry engaged in interstate commerce.
United States v. Addonizio, supra, 451 F.2d at 76-77. A
fortiori, extortion directed at those constructing part of
an interstate highway, which is an instrumentality of in-
terstate commerce, falls within the jurisdictional scope of
the Hobbs Act. The requisite impact on interstate com-
merce has also been found where the resources of a busi-
ness engaged in interstate commerce are diminished by
extortion, thereby permitting the inference that as a con-
sequence of the extortion the operations of the business
have been delayed, obstructed or in some way affected.
United States v. Mazzei, 521 F.2d 639 (3d Cir.), cert. denied,
423 U.S. 1014 (1975); United States v. Augello, supra, 451
F.2d at 1170; United States v. Tropiano, supra, 418 F.2d
at 1076-77. Here evidence demonstrated that Hudson (e-
ment and Callanan Industries, two of the principal victims
of Daley’s scheme, were engaged in interstate commerce:
8a
Appendia A—Opinion of United States Court of Appeals
Hudson, through its out of state shipments of cement, and
Callanan, through its construction work on the New York
Thruway. Clearly, the resources of both companies were
depleted by the extortion. The consequent impairment of
their ability to carry on business in interstate commerce
also brings Daley’s offense within the ambit of the Hobbs
Act.‘ We hold therefore that there was a sufficient inter-
state nexus established to support the conviction.
B. Appellant urges that there was insufficient evidence
to establish “reasonable fear” in the minds of the victims
as is required for a Hobbs Act conviction. United States
v. Rastelli, 551 F.2d 902 (2d Cir.), cert. denied, 46 U.S.L.W.
3216 (U.S. Oct. 4, 1977). The Hobbs Act, § 1951(b) (2),
provides that the “term extortion means the obtaining of
property from another, with his consent, induced by wrong-
ful use of actual or threatened force, violence, or fear... .”
There is no claim made that the jury was improperly
charged. What we said in Rastelli is applicable here:
Essentially appellants are attempting to reargue the
evidence, urging upon us as facts what are basically
4 Appellant's contention that United States v. Merolla, 523 F.2d 51
(24 Cir. 1975) precludes the application of the “depletion of assets”
theory in this case is incorrect. The victim in Merolla was not a pro-
fessional contractor but rather entered a “one shot deal” to build an
auto showroom for the defendant. Addonizio, supra, was distinguished
in Merolla on the basis that the victim there was not maintaining an
“ongoing business” in interstate commerce. Id. at 55. Here Callanan
was engaged in the construction of a highway to serve interstate com-
merce and Hudson Cement made shipments in interstate commerce.
Appellant also urges that in light of Merolla it was error for Judge
Lasker to charge the jury that a potential rather than an actual effect
on interstate commerce satisfied the jurisdictional requirement of the
Hobbs Act. The argument is without merit. Aside from the factual
distinctions hetween the cases, the charge given fully accords with our
holding in United States v. Augello, supra, 451 F.2d at 1170. More-
over, Merolla did not purport to alter the rule that a potential effect
or interstate commerce brings an offense within the scope of the Hobbs
Act. See United States v. Merolia, supra, 523 F.2d at 55.
9a
Appendia A—Opinion of United States Court of Appeals
inferences favorable to the defendants but which were
rejected by a properly instructed jury. It is basic that
we must view the evidence in the light most favorable
to the government. Glasser v. United States, 315 U.S.
60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Under this
test appellants must fail.
Id. at 905.
A reading of the record here reveals testimony by both
employees and employers of Local] 445 that they would lose
their jobs or that their business would be injured if they
failed to comply with Daley’s requests transmitted through
his agents and the named but unindicted co-conspirators,
Alecca and Clausi. Daley was the principal officer of the
Local for fifteen years and there was evidence of his power
to influence adversely the economic interests of both union
members and employers. The materials involved here were
substantial and were provided at considerable expense of
time, effort and money by the victims of Daley’s extortion.
While there was testimony by some that they complied
willingly with Daley’s demands, their credibility was a
matter for the jury to determine. We have no diffienlty
in finding that there was sufficient evidence to justify a
finding that there were victims who complied with Daley’s
demands out of a reasonable fear of retaliation if they
failed to do so. Again it was the jury’s prerogative to
reject the defense contention that the benefits bestowed
on Daley, the sole beneficiary of these transactions, were
prompted by friendship for an innocent and unwitting
donee.
C. Appellant argues that Daley’s activities must amount
to “racketeering” before a Hobbs Act violation can be es-
tablished. The contention is totally without merit. This
court, in recently upholding a Hobbs Act conviction based
10a
Appendix A—Opinion of United States Court of Appeals
on a single incident of commercial bribery by the pur-
chasing agent of a private corporation, explicitly rejected
the concept that the Hobbs Act definition of extortion is
limited to prosecutions involving organized crime. United
States v. Brecht, 540 F.2d 45, 52 (2d Cir. 1976). cert. denied,
429 U.S. 1123 (1977).5 Moreover, the corrupt abuse of the
power of a union official in our view is precisely the type
of activity which the Act was designed to embrace, see,
e.g., United States v. Enmons, 410 U.S. 396, 400 (1973);
and eases cited in United States v. Brecht, supra, 540 F.2d
at 5:, and indeed is a form of labor racketeering.
III
Appellant makes other arguments which we find unper-
snasive. In 1970 Judge Lasker presided over a civil trial
involving a claim of an unfair labor practice against Local
445. Daley and Local official Raymond Ebert, both of whom
testified in Daley’s defense in the trial below, were wit-
nesses in that proceeding. In the civil case Judge Lasker
stated that it was impossible to reconcile the testimony of
Daley and Ebert, the only two witnesses for the Local in
that action, without finding that one of them had been
untruthful. Ten days after commencement of the present
criminal trial and seven months after assignment of the
ease to Judge Lasker, Daley made a motion for recusal
which was denied by. Judge Lasker. The motion was prop-
erly denied. There was no showing or even suggestion
that Judge Lasker had the “personal bias” required by
5 Daley's argument that the Hobbs Act proscribes only organized rack-
eteering activity is premised on two cases, [United States v. Culbert, 548
F.2d 1355 (9th Cir.), cert. granted, 46 U.S.L.W. 3214 (U.S. Oct. 4,
1977); United States v. Yokley, 542 F.2d 300 (6th Cir. 1976). How-
ever, neither case involved the illegitimate labor union activities en-
countered here, which the Hobbs Act was mainly designed to thwart.
United States v. Enmons, 410 U.S. 396, 400 (1973); United States v.
Brecht, supra, 540 F.2d at 51.
lla
Appendix A—Opinion of United States Court of Appeals
28 U.S.C. §§ 144, 455(b) (1). United States v. Wolfson, 558
F.2d 59, 62 (2d Cir. 1977).
Even under the broader standard of the new § 455(a),
which provides that a judge shall disqualify himself in a
proceeding where “his impartiality might reasonably be
questioned,” * Judge Lasker properly denied the motion for
recusal. Of course it is most significant that the alleged
prejudice appellant complains of here originated only in a
prior judicial ruling. See United States v. Bernstein, 533
F.2d 775, 784-85 (2d Cir.), cert. denied, 429 U.S. 998 (1976).
There may be instances in which a judge’s behavior during
prior judicial proceedings can demonstrate sufficient fric-
tion between the judge and the complaining party to sup-
port a finding of bias, see Wolfson v. Palmieri, 394 F.2d
121, 124-25 (2d Cir. 1968); 138 Wright, Miller & Cooper,
Federal Practice and Procedure: Jurisdiction 4 3542 at
352-53, but such was certainly not the situation in this case.
In fact, Daley makes no specific allegations that Judge
Lasker conducted either trial in a manner which even
faintly suggested bias on his part. Appellant’s position is
also undermined by Daley’s protracted delay before mov-
ing for recusal in the district court, despite his actual know]-
edge of a prior judicial encounter with Judge Lasker. See
Duffield v. Charleston Area Medical Center, Inc., 503 F.2d
512, 515-16 (4th Cir. 1974). Defense counsel’s protestations
that he was unaware of Judge Lasker’s previous involve-
ment with Daley are unconvincing since the facts were
clearly known to Daley himself and, as a matter of public
record, were at all times ascertainable by counsel. See
Hirschkop v. Virginia State Bar Association, 406 F. Supp.
721, 724 (E.D. Va. 1975). Moreover, the same firm that
represented Local 445 in the civil action assisted the prep-
6 28 U.S.C. $455(a) provides: “Any justice, judge, magistrate, or
referee in bankruptcy of the United States shal] disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.”
12a
Appendia A—Opinion of United States Court of Appeals
aration of Daley’s defense below. Appellant’s motion was
also rendered untimely by the fact that ten days of trial,
with all the attendant expenditure of judicial resources,
preceded the recusal motion. See Smuck v. Hobson, 408
F.2d 175, 182-83 (D.C. Cir. 1969). Under these circum-
stances, appellant can hardly maintain that Judge Lasker’s
impartiality could reasonably be questioned.’ Cf. United
States v. Wolfson, supra; United States v. Cowden, 545
F.2d 257 (1st Cir. 1976), cert. denied, 430 U.S. 909 (1977).
We further find that the record supportsethe introduc-
tion of hearsay statements by Alecca and Clausi, Daley’s
unindicted co-conspirators. The Government need only es-
tablish by a fair preponderance of the evidence independent
of hearsay statements, that Daley was a participant in the
conspiracy. United States v. Stanchich, 550 F.2d 1294,
1297-98 (2d Cir. 1977). The evidence set forth in Part I
of this opinion amply attests to Daley’s continuing demands
upon his victims and his awareness of the source and nature
of the benefits obtained. The submission of the conspiracy
count to the jury under the standard set forth in United
States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972) was
entirely proper in our view. A jury could fairly find guilt
beyond a reasonable doubt here on the basis of the infer-
ences they might justifiably have drawn from the evidence
and their determination of the credibility of the witnesses.’
7 The result is the same here whether the reasonableness of the objec-
tion to Judge Lasker's impartiality is viewed from Daley's perspective
or from that of a disinterested observer. See United States v. Cowden,
545 F.2d 257, 265 (jst Cir. 1976), cert. denied, 430 U.S. 909 (1977);
Parrish v. Board of Commissioners of the Alabama State Bar, 524 F.2d
98 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 944 (1976).
Rg The standard of United States v. Taylor, supra, is
“whether upon the evidence, giving full play to the right of the jury
to determine credibility, weigh the evidence, and draw justifiable
inferences of fact, a reasonable mind might fairly conclude guilt
beyond a reasonable doubt.”
Td. at 243.
——
13a
Appendix A—Opinion of United States Court of Appeals
Appellant’s arguments regarding improprieties in the
proceedings before the Grand Jury have been waived since
they were not raised before trial as required by Fed. R.
Crim. P. 12(b)(2). United States v. McGrath, 558 F.2d
1102, 1105-06 (2d Cir. 1977); United States v. Blitz, 533
F.2d 1329, 1344 (2d Cir.), cert. denied, 429 U.S. 819 (1976).
Moreover, appellant’s arguments are meritless. United
States v. Marchand, Dkt. No. 77-1131, slip op. 53-1, at 5426
n.29 (2d Cir. Aug. 22, 1977).
We have carefully considered the other matters raised
by appellant and have found them also to be without merit.
The judgment of conviction is therefore affirmed.
l4a
Appendix B—Statutes Involved
Title 18, United States Code, Section 1951, states:
Ҥ 1951. Interference with commerce by
threats or violence
(a) Whoever in any way or degree obstructs, de-
lays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or ex-
tortion or attempts or conspires so to do, or commits
or threatens physical violence to any person or prop-
erty in furtherance of a plan or purpose to do any-
thing 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—
(1) The term ‘zobbery’ means the unlawful taking
or obtaining of personal property from the person
or in the presence of another, against his will, by
means of actual or threatened force, or violence, or
fear of injury, immediate or future, to his person
or property, or property in his eustody or posses-
sion, or the person or property of a relative or
member of his family or of anyone in his company
at the time of the taking or obtaining.
(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 right.
(3) The term ‘commerce’ means commerce within
the District of Columbia, or any Territory or Pos-
15a
Appendix B—Statutes Involved
session of the United States; all commerce between
any point in a State, Territory, Possession, or the
District of Columbia and any point outside thereof ;
all commerce between points within the same State
through any place outside such State; and all other
commerce over which the United States has juris-
diction.
(c) This section shall not be construed to repeal,
modify or affect Section 17 of Title 15, sections 52,
101-115, 151-166 of Title 29 or sections 151-188 of
Title 45.”
Title 29, United States Code, Section 186(b)(1), (d),
states:
“(b)(1): It shall be unlawful for any person to
request, demand, receive, or accept, or agree to re-
ceive or accept, any payment, loan, or delivery of any
money or other thing of value prohibited by subsec-
tion (a) of this section.”
“(d): Any person who willfully violates any of the
provisions of this section shall, upon conviction there-
of, be guilty of a misdemeanor and be subject to a fine
of not more than $10,000 or to imprisonment for not
more than one year, or both.”
Title 28, United States Code, Section 455 provides:
“Any justice or judge of the United States shall dis-
qualify himself in any case in which he has a substan-
tial interest, has been of counsel, is or has been a
material witness, or is so related to or connected with
any party or his attorney as to render it improper,
l6a
Appendix B—Statutes Involved
in his opinion, for him to sit on the trial, appeal or
other proceeding therein.”
Title 28, United States Code, Section 144 (1970) pro-
vides:
“Whenever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit
that the judge before whom the matter is pending has
a personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed
no further therein, but another judge shall be assigned
to hear such proceeding.”
on
17a +
Appendix C—Judgment
UNITED STATES COURT OF APPEALS
For tHE Seconp Circuit
At a stated Term of the United States Court of
Appeals for the Second Circuit, held at the
United States Courthouse in the City of
New York, on the twentieth day of October,
one thousand nine hundred and seventy-
seven.
Present:
Hon. Lzonarp P. Moore,
Hon. Wi-rrep FEINBERG,
How. Wituiam H. Mvtuiean,
Circuit Judges.
77-1262
Unirep States or AMERICA,
Plaintiff-A ppellee,
v.
TxHeEopore G. DaLey,
Defendant-A ppellant.
Appeal from the United States District Court for the
Southern District of New York.
This cause came on to be heard on the transcript of
record from the United States District Court for the
Southern District of New York, and was argued by
counsel.
--18a
Appendix C—Judgment
On ConsipeRATION WHEREOF, it is now hereby ordered,
adjudged, and decreed that the judgment of said District
Court be and it hereby is affirmed in accordance with the
opinion of this court.
A. DanteL Fvsaro,
Clerk
By /s/ ARTHUR M. Hetxer
Deputy Clerk
_—
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