Opposition — Daley v. United States

No. 77-714

Gn the Supreme Gourt of the ited Sites

Octoser TERM, 1977

THEODORE G. DALEY, PETITIONER

v.

Untrep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THR UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JE.,

Sokoitor General,

BENJAMIN R. CIVILETTI,.

Asetztant Attorney General,

WILLIAM C, BROWN,

Attorney,

Department of Justice,

Washington, D.O. 20530.

Page

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CITATIONS

Cases:

Berger v. United States, 255 U.S. 22__--- 10, 11

Davis v. Board of School Commissioners,

517 F. 2d 1044, certiorari denied, 425

I ee a ee 11

Hirschkop v. Virginia State Bar Associa-

MS, ee 11

Satterfield vy. Edenton-Chowan Board of

Education, 530 F. 2d 567_.......-.-..- 11

Stirone v. United States, 361 U.S. 212___- 6

United States v. Cowden, 545 F. 2d 257,

certiorari denied, 430 U.S. 909__-.___- 10

United States v. Culbert, 548 F. 2d 1355,

argued January 11, 1978 (No. 77-142)_- 5

United States v. DeMet, 486 F. 2d 816,

certiorari denied, 416 U.S. 969_______. 7

United States v. Grinnell Corp., 384 US.

EE dankdcctinnsendusenenansnanesepee 10

United States v. Haldeman, 559 F. 2d 31,

certiorari denied, sub nom. Ehrlichman

v. United States, 431 U.S. 933__.______ 10, 11

United States v. Hathaway, 534 F. 2d 386,

certiorari denied, 429 U.S. 819__________ 6

(i)

IV

Cases—Continued —

United States v. Mazzei, 521 F. 2d 639,

certiorari denied, 423 U.S. 1014-------- 6-7

United States v. Merolla, 523 F. 2d 51---- 7 r

United States v. Nixon, 418 U.S. 683------ 8 ont the Supreme Gourt of the Anited States

United States v. Oliva, 497 F. 2d 130------ 8

United States v. Partin, 552 F. 2d 621, October TERM, 1977

certiorari denied, October 17, 1977 (No.

11-34) ------------------------------ 11 Me. 11-714

United States v. Petrozziello 548 F. 2d 20- 8 ot

United States v. Stanchich, 550 F. 2d 1294- 8 THEODORE G. DALE ;

United States v. Wolfson, 558 F.2d59---- WU 7 —

United States v. Yokley, 542 F. 2d 300_--- 5 Unitep § °

Wisniewski v. United States, 353 U.S. 901- 7 TATES OF AMERICA

Wolfson v. Palmieri, 396 F. 2d 121------- 10 —

Statutes and rule: ON PETITION FOR A WRIT OF CERTIORARI NITE

Hobbs Act, 18 U.S.C. 1951--------------- 2 STATES COURT OF 4 PEALS FOR THE iene Geneeer

ON ———————————— 10, 11 |

28 U.S.C. (Supp. V) 455_.--------------- 11 BE

98 U.S.C. (Supp. V) 455(a)------------- 10 | TEF FOR THE UNITED STATES IN OPPOSITION

28 U.S.C. (Supp. V) 455(b) (1)---------- 10

29 UBC. 106.22cccccnccncccsccsssseuse 2 ' OPINION BELOW

re ae roa emer : | _ The opinion of the court of appeals (Pet. App. A)

BF UBL. BG) cocescssessssennea ) is reported at 5 645

od. BR. Bevid. 98 (6)ccosceccueeeeee 9 | POTS a8 SUS F.28 O66.

JURISDICTION

| The judgment of the court of appeals (Pet. App.

| C) was entered on October 20, 1977, and the petition

for a writ of certiorari was filed on November 18

1977. The jurisdiction of this Court is invoked ender

| 28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether the Hobbs Act, 18 U.S.C. 1951, applies

only to “racketeering,” and, if so, whether petitioner’s

extortionate conduct constitutes “racketeering.”

2. Whether the evidence was sufficient to support

the jury’s verdict.

3. Whether the statements of co-conspirators were

properly admitted into evidence.

4. Whether petitioner’s mid-trial motion for recusal

of the trial judge was properly denied.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted of obstructing commerce by

means of extortion, in violation of the Hobbs Act, 18

U.S.C. 1951, of conspiring to commit that offense, also

in violation of Section 1951, and of five counts of ac-

cepting, as a union officer, goods and services from

employers of union members, in violation of 29 U.S.C.

186(b)(1) and (d). Petitioner received a suspended

sentence on all counts and was placed on probation

for three years; he was fined $5,000 on each of the

five counts charging violations of 29 U.S.C. 186 (Pet.

App. 2a). The court of appeals affirmed (Pet. App.

la-l3a).

Since 1956 petitioner has been the Secretary-Treas-

urer, or principal officer, of Teamsters Local 445, a

local of several thousand members covering several

New York counties. Petitioner functioned as _ the

“boss” of the Union and controlled the union hiring

ee ee

3

procedures (Tr. 39, 47, 363-364, 411-412, 442, 526, 543,

832, 1034, 1529).

In the summer of 1971 petitioner asked unindicted

co-conspirator Anthony Alecca, Jr., the second rank-

ing officer in the Local, to obtain some stone to con-

struct a driveway at petitioner’s camp in Windham,

New York (Tr. 37, 40, 73-74). Alecea contacted a rep-

resentative of Hudson Cement in Kingston, New

York, a company with which the union was then en-

gaged in contract negotiations (Tr. 74-80, 438, 481).

The general manager of Hudson Cement, after being

advised that the stone was for petitioner’s use, agreed

to provide several loads in order to avoid any prob-

lems with Local 445 (Tr. 79-80, 439-440, 481-482,

487-489). Aleeeca then instructed Thomas Clausi,

the Local 445 shop steward on a project to repair

the New York State Thruway near Kingston, to ar-

range for trucks and drivers to haul the stone 60

miles from Hudson Cement in Kingston to petitioner’s

eamp (Tr. 81-85, 198-200, 358, 712).

‘ Tn all, 30 to 36 truckloads of stone totalling about

600 tons were delivered to petitioner’s camp by union

drivers between September 3 and 11, 1971. This stone

was selling at a delivered price of nine dollars per ton

at Windham, the site of petitioner’s camp. Some

ten to fifteen dump trucks, a tractor-trailer, and

other equipment snpplied by Local 445 owner-opera-

tors and contractors who employed union members

were used to make the deliveries. The drivers who de-

livered the stone were not paid for their labor, the

truck owners were not paid for the use of their equip-

4

ment or fuel, and Hudson Cement received no reim-

bursement for the stone it supplied (Pet. App. 4a).

Clausi testified that he was following orders in ar-

ranging for the stone deliveries and that he believed

that if he or the other union members had refused to

make the hauls, they would not have received work

(Tr. 238-239, 312-313). Several owner-operators and

drivers testified that they agreed to participate in the

delivery so that they would not lose their employment

(Tr. 238, 364, 410-412, 534-544, 568-569, 575, 781-

784). Clausi threatened several drivers with loss of

their jobs if they did not cooperate in the project, say-

ing to one driver, for example, that “[y]ou will either

go to the mountains or be looking for a new job” (Tr.

534-544, 781-784).

Petitioner also ordered Clausi to get him a quantity

of 12-inch by 12-inch wooden beams (Tr. 87-88, 241).

Clausi secured about 20 of the beams from a construc-

tion company, and they were delivered by an employee

of Calianan Industries, the contractor on the New

York Thruway project at Kingston (Tr. 241-246, 715-

726). Later, petitioner told Alecca that he had spoken

to Clausi about delivering still more beams to his

camp and that he wanted to know why they had not

been delivered (Tr. 87-88). Alecea and Clausi then

contacted officials of Callanan Industries, who agreed

to provide the beams to petitioner (Tr. 88-89, 246-

249). ‘Twenty-two additional beams—each worth about

$35—were then delivered to petitioner’s camp by a

union driver on the Callanan payroll (Tr. 248-250,

621, 636).

5

ARGUMENT

1. Petitioner asserts (Pet. 21-26) that the proserip-

tions of the Hobbs Act apply only to “racketeering”’

and that his conduct does not constitute “racketeer-

ing.” The question whether “racketeering’’ is an ele-

ment of the Hobbs Act is presently before this Court

in United States v. Culbert, No. 77-142, argued Janu-

ary 11, 1978.’ However, even if this Court were to

hold that the Hobbs Act is so limited, the outcome of

this case should not be affected since no definition of

“racketeering” in the context of the Act should ex-

clude petitioner’s extortionate conduct. Indeed, al-

though the court of appeals in Culbert did not dis-

cuss the legislative history of the Act (548 F. 2d 1355

(C.A. 9)), it adopted the view of the Sixth Circuit in

United States v. Yokley, 542 F. 2d 300, 303, which

began from the premise that Congress’s purpose in

adopting the Hobbs Act was to curb “labor racketeer-

ing.” As the court below observed (Pet. App. 10a) :

* * * the corrupt abuse of the power of a union

official in our view is precisely the type of ac-

tivity which the Act was designed to embrace,

see, e.g., United States v. Enmons, 410 U.S. 396,

400 (1973); and cases cited in United States v.

Brecht, [540 F. 2d 45, 51 (C.A. 2)], and indeed

is a form of labor racketeering.

2. Petitioner also contends (Pet. 26-30) that the

evidence was insufficient to support the jury’s verdict

2 We are sending a copy of our brief in Culbert to petitioner’s

counsel,

6

because the necessary effect on interstate commerce

was not established.’

In Stirone v. United States, 361 U.S. 212, 215, this

Court observed that the broad language of the Hobbs

Act—which proscribes extortion affecting commerce

“in any way or degree”—manifests Congress’s inten-

tion to use the full extent of its constitutional power

to punish interference with interstate commerce by

extortion, robbery, or physical violence. Against this

background, the courts of appeals have consistently

ruled that only a minimal effect on interstate com-

merce need be shown to meet the jurisdictional re-

quirement of the Act. See e.g., United States v. Hath-

away, 934 I. 2d 386 (C.A. 1), certiorari denied, 429

U.S. 819; United States v. Mazzei, 521 F. 2d 639 (CLA.

* Petitioner also urges (Pet. 30-31) that the evidence was insuffi-

cient to show that the goods and services provided by the victims

of his scheme were obtained through the use of fear in violation of

the Hobbs Act. The court of appeals correctly concluded (Pet.

App. 9a) :

“A reading of the record here reveals testimony by both em-

ployees and employers of Local 445 that they would lose their jobs

or that their business would be injured if they failed tocomply 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 evi-

dence 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

Daiey’s demands, their credibility was a matter for the jury to

determine. We have no difficulty in finding that there was suffi-

cient evidence to justify a finding that there were victims who

complied with Daley’s demands out of a reasonable fear of re-

taliation if they failed to do so,”

7

3), certiorari denied, 423 U.S. 1014; United States v.

DeMet, 486 F. 2d 816/822 (C.A. 7), certiorari denied,

416 U.S. 969. :

There was ample evidence to meet this statutory re-

quirement. Some of the victims of petitioner’s scheme

of extortion here were contractors for repairs on the

New York Thruway, a major artery of interstate com-

merce, and employees of these contractors; their com-

pliance was obtained by threats that they would lose

their work on that project. Moreover, Hudson Cement

and Callanan Industries, two of the principal victims

of petitioner’s scheme, were engaged in ongoing inter-

state commerce: Hudson made regular out of state

shipments of cement, and Callanan was engaged in

major construction work on the New York Thruway.’

Since the materials involved here were of substantial

worth, the resources of both companies were measur-

ably depleted by the extortion, and the resulting im-

pairment of their ability to carry on business in inter-

state commerce also brings petitioner’s offense within

the ambit of the Hobbs Act.

3. Petitioner next contends (Pet. 31-35) that his

conspiracy conviction should be reversed because the

trial court admitted into evidence the out-of-court

statements of unindicted co-conspirators Alecca and

° Petitioner’s reliance on United States v. Merolla, 523 F. 2d 51

(C.A. 2), is misplaced. As the court below noted (Pet. App. 8a n.

4) the victim in Merolla was not engaged in an ongoing business

in interstate commerce, but rather entered into a “one shot deal”

to build an auto showroom for the defendant. In any event, any

possible intracircuit conflict on this issue is a matter for resolution

by the court of appeals. See Wisniewski v. United States, 353 U.S.

901.

8

Clausi. Although petitioner does not single out spe-

cific statements that he contends were inadmissible, he

is apparently referring to statements Clausi and Al-

ecca allegedly made to various contractors and truck-

ers, about which those persons testified at trial (see

Pet. 31).

This argument is totally without merit. As the court

of appeals correctly concluded, there was ample

independent evidence to establish the conspiracy and

Daley’s participation, and we rely upon its discussion

of this evidence (Pet. App. 12a).* Moreover, we

observe that many, if not all, of the statements to

which petitioner apparently refers were not hearsay.

The statements of witnesses who testified to threats

* Petitioner suggests (Pet. 33) that this Court should review this

aspect of the court of appeals’ holding because there is a conflict

among the circuits regarding the quantum of non-hearsay evi-

dence that must be introduced before the government may invoke

the co-conspirator exception to the hearsay rule. We agree that

there is a conflict. Compare United States v. Stanchich, 550 F. 2d

1294, 1298 (C.A. 2) (a “fair preponderance of the [independent]

evidence”) ; with United States v. Oliva, 497 F. 2d 130, 1382 (C.A. 5)

(“Prima facie case”) ; see aiso United States v. Petrozziello, 548 F.

2d 20, 23 (C.A. 1) (“if it is more likely than not”) ; cf. United

States v. Nivon, 418 U.S. 683, 701 n. 14 (enough “substantial, inde-

pendent evidence of the conspiracy” to take the case to the jury)

(dictum). Since the non-hearsay evidence here was more than suffi-

cient to invoke the co-conspirator exception under any of these

tests, this case is not an appropriate vehicle to resolve the conflict

regarding the requisite quantum of non-hearsay evidence.

Petitioner also suggests (Pet. 34-35) that even if the evidence of

the co-conspirators’ statements was admissable, the submission of

the conspiracy count to the jury was improper. As the court of

appeals correctly concluded (Pet. App. 12a), this contention is

without merit, since there was ample evidence from which the jury

could find guilt established beyond a reasonable doubt.

9

made by Clausi and Alecca were introduced not to

show the truth of the matters allegedly asserted by

Clausi and Alecea (see Fed. R. Evid. 801(¢)), but

simply to show that such threatening statements were

made. Moreover, both Clausi and Alecea testified and

were available for cross-examination.

4, Finally, petitioner contends (Pet. 35-40) that the

trial judge erred in refusing to recuse himself. Peti-

tioner moved for recusal on the tenth day of trial, ap-

proximately seven months after the case had been as-

signed to Judge Lasker (Pet. App. 10a). The request

was based on the fact that Judge Lasker had presided

in a civil proceeding involving Local 445 seven years

previously. In connection with that prior case the

court had stated that he did not believe that the state-

ments of the various witnesses could be reconciled

without “ ‘finding somebody is perjuring himself’ ”

(Tr. 1092). Petitioner and Raymond Ebert had been

the only witnesses for Local 445 in that proceeding,

and petitioner argued that the court must have re-

solved the credibility issue against one or both of

them, since the court ruled in favor of the employer

(Tr. 1092-1092). Both petitioner and Ebert were de-

fense witnesses in the instant proceeding.

The trial judge declined tv recuse himself, observ-

ing that even after defense counsel brought the mat-

ter to his attention he had only a “very vague recol-

lection” of the earlier case (Tr. 1090-1091). He con-

cluded (Tr. 1097) that because “so much time and

energy had been invested in the case,’’ he would not

recuse himself “unless [he] believe[d] at any time

10

that a decision which I will be called upon to make

could be influenced by my still foggy recollection of

what occurred five or six or seven years ago * * *.”

He also assured the parties that if he believed the de-

cision of whether the case should be submitted to the

jury depended “to * * * any substantial extent” on

his estimate of the credibility of either Daley or

Ebert he would advise them so that they could reopen

the question of recusal (ibid.).

A federal judge is required to disqualify himself in

cases of “personal bias or prejudice,’’ 28 U.S.C. 144,

and in any ease in which “his impartiality might

reasonably be questioned” or in which he has a “per-

sonal bias or prejudice concerning a party.’’ 28 U.S.C.

(Supp. V) 455(a), (b)(1). As the court of appeals

correctly concluded (Pet. App. 10a-lla), since peti-

tioner does not allege that the trial judge conducted

“either trial in a manner which even faintly suggested

bias on his part,” but only that seven years previously

the judge had ruled adversely to the party on whose

behalf petitioner had testified, the trial judge properly

denied the recusal motion. Wolfson v. Palmieri, 396

F. 2d 121 (C.A. 2); see United States v. Cowden, 545

F. 2d 257, 265 (C.A. 1), certiorari denied, 430 U.S.

909. Indeed, it has long been settled that a disquali-

fying bias under these statutes ordinarily “must

stem from an extrajudicial source” and not from

the fact that a judge presided at a related case

or acquired information in his judicial capacity. See

United States v. Grinnell Corp., 384 U.S. 563, 583:

Berger v. United States, 255 U.S. 22, 31; United

States v. Haldeman, 559 F. 2d 31, 131-139 (C.A. D.C.),

1l

certiorari denied sub nom. Ehrlichman vy. United

States, 431 U.S. 933; United States v. Partin, 552 F.

2d 621, 636-639 (C.A. 5), certiorari denied, October

17, 1977 (No. 77-34).° In the circumstances here, par-

ticularly in view of the fact that petitioner relayed un-

til the tenth day of trial before requesting recusal

(Pet. App. 10a), the trial court properly denied his

motion.’

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Wave H. McCrer, Jr.,

Solicitor General,

BENJAMIN R. CIvVILETTI,

Assistant Attorney General,

WituiaM C. Brown,

Attorney.

FEBRUARY 1978.

5 Section 455 was amended and broadened in 1974. The amended

statute, like its predecessor, is aimed at “bias” stemming from

“an extrajudicial source.” See United States vy. Wolfson, 558 F. 2d

59, 62 (C.A. 2); Davis v. Board of School Commissioners, 517

F. 2d 1044, 1051-1052 (C.A. 5), certiorari denied, 425 U.S. 944.

* As the court below observed, petitioner’s protestations that

defense counsel were unaware of his previous involvement with

the trial judge “are unconvincing since the facts were clearly

known to [petitioner] himself and, as a matter of public record,

were at all times ascertainable by counsel” (Pet. App. lla). See

Satterfield v. Edenton-Chowan Board of Education, 530 F. 2d

567, 574 (C.A. 4); Hirschkop v. Virginia State Bar Association,

406 F. Supp. 721, 724 (E.D. Va.).

* Contrary to petitioner's claim (Pet. 40), 28 U.S.C. 144 does

not require the trial judge to refer a recusal application to another

district judge to pass on its legal sufficiency. See, e.g., Berger v.

United States, supra, 255 U.S. at 36; United States v. Haldeman,

supra, 559 F. 2d at 131.

U.S. GOVERNMENT PRINTING OFFICE: Ie76