Petition — Calder v. United States
Supreme Court brief1981
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ALEXAND =R L. STEVAS,
CLERK
IN THE
Supreme Court of the United
OCTOBER TERM, 1980
he
JULIUS CALDER,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
HARVEY L. GREENBERG
Attorney for Petitioner
16 Court Street
Brooklyn, N.Y. 11241
(212) 625-6578
SS SS
DICK BAILEY PRINTERS, 290 RICHMOND AVE., S.1., N.Y. 10302
TEL.: (212) 447-5358 — (516) 222-2470 — (914) 682-0848
i
QUESTIONS PRESENTED FOR REVIEW
ARE AS FOLLOWS: .
Was there sufficient proof by the Government to
establish the interference with inter-state commerce which
is essential in a Hobbs Act Prosecution?
- Did the Trial Court improperly remove the issue of
interference with inter-state commerce from the Jury’s
consideration, restlting in a violation of due process?
Were the Fifth ¢Sth) and Sixth (6th) Amendment
Rights of the Petitioner violated by the admission into
evidence at the trial of the incriminating statements made
~ by him to an undisclosed government informant while in
custody? | :
3 A list of all the parties to this proceeding whose judg-
‘ment is Sought to be reviewed is contained in the caption
of this case.
TABLE OF CONTENTS
Page
Questions Presented for Review are as Folows.... i
SN ee oat Cn ne Chai maaan ae ei 1
The Constitutional and Statutory Provisions
SE sic oe EE PR EES ORE 2
UNCON OF Te Cte i si diese oh 3
Reasons for Granting the Writ.................. 10
POINT ONE—
The Government’s Proof Was Insufficient to
Establish the Interference with Inter-State
Commerce which is Essential in a Hobbs Act
POC 6 5 kind ki edb PERE Bea DN ot ees 10
POINT TWO—
The Trial Court Improperly Removed the Issue
of Affect on Inter-State Commerce, Resulting
in a Violation of Due Process................. 12
POINT THREE—
The Fifth and Sixth Amendment Rights of the
Petitioner, Julius Calder, Were Violated by
the Admission Into Evidence at the Trial of
the Incriminating Statements Made by Him
to an Undisclosed Government Informant While
CON bk ett aaa 17
PREVIOUS PAGE WAS BLANK
iv
Conclusion—
For the Above Reasons, a Writ of Certiorari
Should be Issued to Review the Judgment
Order and Decision of the United States Court
of Appeals, Second Circuit..................
FM ids Sink iwi bo'wb ad a5b ae > Bae ote
PG OP cee ee eSR eRe ks eee ae bee ee
CASES CITED
Carbo v. United States, 314 F.2d 718 (9th Cir.
NS Be ee eae SES kas BK a b 0s
sh bike v. U.S., 590 F.2d 544 (4th Cir. 1978).......
Massiah v. U.S., 377 U.S. 201 (1964)............
Maze v. United States, 414 U.S. 398 (1974).......
Morissette v. United States, 342 U.S. 246 (1952). ..
Mullaney v. Wilbur, 421 U.S. 684 (1975).........
Rewis v. United States, 401 U.S. 808 (1971).......
Sandstrom v. Montana, 442, U.S. 510 (1979)...
Screws v. United States, 325 U.S. 91 (1945).......
Stirone v. United States, 361 U.S. 212 (1960)......
21
la
10a
Vv
Tot v. United States, 319 U.S. 463 (1943).........
United States v. Addonizio, 451 F.2d 49, (3d
Cir.) cert. den. 405 U.S. 936 (1972)............
United States v. Alsondo, 486 F.2d 1339 (2d
RE PN CPG Listas es Ce PPR RD Read eee Cees
United States v. Augello, 451 F.2d 1167 (2d Cir.
1971) cert. den. 405 U.S. 1070 (1972)..........
United States v. Bass, 404 U.S. 336 (1971)........
United States v Bosch, 505 F.2d 78 (Sth Cir. 1974).
United States v. Culbert, 435 U.S. 371 (1978).....
United States v. DeGregorio, 605 F.2d 1184 (lst
UG FCC e NEG Cy ciciciks Sige wd BAK
United States v.. DeMarco, 488 F.2d 828 (2d Cir.
United States v. Feola, 420, U.S. 671 (1975)......
United States v. Fields, 466 F.2d 119 (2d Cir.
SRE ae OD Se A Pa i EO
United States v. Gambino, 566 F.2d 414 (2d
EE UC ROR ROOM eel hehe Re eek ree
ma fee. a US. ae ee 3nS5
ONRIREE RRR AS CL RAPE LR a a
13
11
16
10
13
16
13
10
16
13
16
10
18
13
7.
|
vi
United States v. Merolla, 523 F.2d 51 (2d Cir.
NR Paik lbn osc S WRORE AS Se dug ckS es bain des ay
United States v. Robinson, 545 F.2d 301 (2d
SN cca ks Gilie patie Cale bcibw eS eae ws «s
United States v. Rodriguez, 465 F.2d 5 (2d Cir.
I hate n ein eae h «es whe stew
United States v. Romano, 382 U.S. 136 (1965). ...
United States v. Staszcuk, 517 F.2d 53 (7th Cir.
ae ce ae ee hn wick Se WOES 4e ROSS as oe
United States v. Tropiano, 418 F.2d 1069 (2d
Cir. 1969) cert. den., 397 U.S. 1021 (1970)...
United States v. United States Gypsum Co., 438
ete a ad oe ck aka os oS bac ccs
STATUTES CITED
Constitution of the United States, Fifth Amend-
ment, Sixth Amendment.....................
CE CRRA GL Dak Gatanich ssp enacecess
OTHER AUTHORITY
Federal Jury Practice and Instruction (3d ed. 1977)
10
16
16
13
15
10
14
“15
1
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
JULIUS CALDER,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
The Petitioner, JULIUS CALDER, respectfully
prays that a Writ of Certiorari issue to review the Judg-
ment Order of the United States Court of Appeals for the
Second Circuit entered in this proceeding on February 10,
1981. It appears, that said Petitioner was indicted by a
Federal Grand Jury for the Eastern District of New York.
The indictment contained three (3) counts founded on 18
- USC 1951 and 2 (First Count); 18 USC 1951 and 2 (Second
Count),\and 18 USC 1951 and 2 (Third Count).
JURISDICTION
The Judgment Order of the Court-of Appeals for the
Second Circuit was entered on February 10, 1981. This
petition for certiorari was filed within sixty (60) days of
-*
2
that date. This Court’s jurisdiction is invoked under 28
U.S.C. Section 1254(1). There was no petition filed nor
application made for a rehearing in the Court below.
The table of contents and table of authorities required
under Rule 33.5 is hereinbefore set forth.
The opinion of the said Court of Appeals is contained
in the Judgment Order, dated February 10, 1981, appears
in Appendix ‘‘A’’ hereto. No opinion was rendered by the
United States District Court for the Eastern District of
New York, the Judgment of which was appealed to the
United States Court of Appeals for the Second Circuit.
THE CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Fifth Amendment—‘‘No person... shall be com-
pelled in any criminal case to be a witness against
himself.”’
Sixth Amendment—‘‘In all criminal prosecutions, the
accused shall... have the assistance of counsel for his
defense.”’
18 USC 1951—‘‘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 cr attempts or conspires so to do, or commits or
threatens pisysical violence to any person or property in
furtherance of a plan or purpose to do anything in viola-
tion of this section shall be fined not more than $10,000 or
imprisoned not more than twenty years. or both.
3
STATEMENT OF THE CASE
The Government’s case consisted of witnesses who
were the owners and employees of two ‘‘topless burs’’
establishments in Manhattan, known as ‘‘Adam and Eve’’
and ‘‘Guys and Dolls Au Go Go,”’ who testified that dur-
ing the period from September, 1978 to October, 1979 co-
defendant, Joseph Calder, demanded and received three
hundred dollars a week as ‘‘protection money’”’ from each
business. In general, each of the witnesses testified that
Mr. Calder performed no services for the three hundred
dollars, a contention vigorously contested on cross-
examination and during the defense case. No evidence was
presented of physical harm to any individual, or of any
property damage in connection with the alleged threats
made to certain witnesses.
The Government’s investigation of this case began
after Robert Fimbel, who used the name Robert Williams
while working as night manager in the Adam and Eve bar,
was being investigated for paying a bribe to a building in-
spector in late 1978 (T. 106-107, 261-263).* Fimbel, a
police officer concerned with losing his job and his pen-
sion, agreed to cooperate with the New York City Depart-
ment of Investigation and the FBI (T. 266-268).
He told the FBI, and testified at trial, that appellant
Joseph Calder had requested ‘‘protection money’’ so that
‘*nothing happens’’ in the place (T 96-97). After Fimbel
spoke to Sol Sitzer, owner of the bar, Calder was paid
three hundred dollars a week from the cash register (T.
98). This sum paid to appellant every Wednesday when he
visited the bar, usually accompanied by co-defendant
George Monge, who carried a gun (T. 102-104).
Although Fimbel was ‘‘fearful’’ that he would be
hurt, he himself carried a gun strapped to his ankle and
* Numbers preceded by ‘‘T’’ refer to pages of trial transcript.
7%
i.
4
would himself serve as a ‘‘bouncer’’ for rowdy patrons in
the bar (T. 129, 227, 258-259). Furthermore, Fimbel
testified that he had a personal relationship with Mr.
Calder and entered into ‘‘serious discussions’”’ with him
regarding their going into the bar business together (T.
245-247).
When Fimbel was cooperating with the FBI he taped
a conversation with appellant, and testified that although
it was important for him to get some threats of extortion
on the tape, such threats never materialized (T. 273).
According to the Government, owners Sol Sitzer and
Arnold Yourman ‘‘independently’’ came to the FBI not
knowing that Fimbel was cooperating. Both Sitzer (who
owned Adam and Eve and had an interest in Guys and
Dolls) and Yourman, who testified that he owned Guys
and Dolls,* testified about payments to Calder based upon
fear. They further explained that Adam and Eve, a “‘juice
bar’’ serving non-alcoholic beverages and Guy and Dolls,
which had a liquor license, charged outrageous prices for
' drinks. For example, a bottle for which they paid $3.00,
sometimes sold for $500.00. In most cases the bottles were
de-alcoholized wine (T. 496-497). Both owners testified to
extensive ‘‘skimming’’ operations which allowed them to
take hundreds of thousands of dollars from their business
and fail to report this as income on their tax returns (T.
482, 563, 574, 702, 777). Sitzer and Yourman were granted
immunity in connection with the instant case, and, in addi-
tion neither have filed amended returns or paid back taxes
due and owing the Government (T. 617, 745).
* There was a serious question whether Yourman was merely
a ‘‘front’’ for Sitzer at Guys and Dolls since Sitzer was barred
by the State Liquor Authority from having any interest in
liquor-serving establishment (T. 480-486, 630).
5
During the course of Arnold Yourman’s testimony, it
was developed that he had originally sought to borrow
money from Calder to ‘‘buy out’’ Sitzer, with whom he
was having a dispute. This dispute concerned whether
Guys and Dolls dancers should go ‘‘bottomless’’ or stay
‘*topless.’’ Accordingly, Yourman was introduced to
Julius ‘‘Red’’ Calder, Joseph Calder’s brother. At no time
did Calder agree to the requested loan (T. 671-674). Ac-
cording to Yourman, suddenly his employees were
threatened by Joseph Calder and he then began paying
them money. At the request of the FBI, he subsequently
taped conversations with Julius Calder, in which he made
no threats, but merely offered to help Yourman with any
problems he had (T. 748-749).
When the FBI made its entry into the case, Sitzer and
Yourman were told to advise Joseph and Julius Calder
that they were being shaken down by a ‘‘John Corbo
Gang’”’ for ‘‘protection money.’’ Payments to Joseph
Calder stopped during October of 1979 for three weeks.
During this hiatus, agents of the FBI, posing as members
of the rival ‘‘Corbo Gang,”’ had telephone and in-person
conversations with Joseph Calder, Julius Calder and
Thomas DiDonato, which were taped and played at the
trial (T. 896-914). During the course of these conversa-
tions no threats were made by Julius Calder, who in-
dicated that he didn’t know what they (the agents posing
as extortionists) were talking about (T. 910). It is signifi-
cant that during the period that the Calders were ‘‘fired’’
by the topless bars, no damage was done and no threats
appear on tape. Furthermore, it was Yourman who was
calling the Calders for help in handling the ‘‘Corbo Gang’”’
situation (T. 912, 804).
Agent John Bonavolonta, posing as John Corbo, .
visited the 19th Hole Restaurant in Brooklyn, with Agent
Lewis Schiliro posing as an associate. There they met with
co-defendant Thomas DiDonato and has a conversation
that was taped and played at trial. Bonavolonta testified
that he was seeking the meeting with DiDonato. The tenor
of the conversation related to theats made to Joseph
Calder by the Corbo Gang, which DiDonato was attemp-
ting to mediate (T. 1134-1140). At no time were any
threats conveyed by DiDonato to the agents (T. 1140).
In October, 1979 all four defendants were arrested in
a car outside the Adam and Eve bar after Joseph Calder
was alleged to have received a three hundred dollar pay-
ment. This money was marked by the FBI, who were
surveilling Calder from the time he left the bar to the time
of his arrest a few minutes thereafter. None of the marked
money was ever seized by the agents although they
thoroughly searched the four occupants of the vehicle, and
the vehicle itself (T. 1268-1272).
The Government also called as witnesses a number of
employees of the bars in question. Mike Levy, a cashier,
testified that while he gave Calder money from the register
on Wednesday (other employees were also paid on
Wednesdays), there were no threats made to him, evidence
which directly contradicted the testimony of Sol Sitzer (T.
390-391, 402, 439). Louis Pistone, another employee,
testified that Joseph Calder came to Guys and Dolls four
or five times weekly, not once a week as prior witnesses
testified (T. 651, 660). Rocco Meoli, a night manager at
. Guys and Dolls, testified that during the three week hiatus
period in October, 1979, when Calder was not receiving
money, he made requests for the money but made no
threats (T. 863-864).
Finally, the Government called numerous surveillance
agents «who described the entry and exit of Joseph Calder
on various Wednesdays and his return to Brooklyn. Ap- .
parently no surveillance was conducted on days other than
Wednesdays.
Joseph Bennett, was called as a witness by the govern-
ment, outside of the presence of the Jury and testified as
follows:
7
That on November 1, 1979 he was a prisoner at the
Metropolitan Correctional Center (MCC), (1005). At that
time he met the appellant, Julius Calder. A conversation
ensued in which Calder told Bennett he remembered Ben-
nett through a cousin of Bennetts’ (1006). Later that even-
ing, in the TV area of the MCC, Julius Calder and Bennett
had a conversation (1007). Bennett asked Calder, what
happened, why he was locked up? Calder stated:
‘**That he was shaking a guy down at a topless place and he
went to collect money off the guy and the guy was wired
up, and that the F.B.I. had the street blocked off and he
got arrested.’’ (1007).
Calder then stated:
**No, the guy w~s paying regular and I went this one time
to collect from the guy and the F.B.I. had the place set
up.’” (1007-1008).
Calder again stated:
**That he thought the F.B.I. had a good case against him
(1008).
Cross-Examination of Bennett was as follows (1008).
That Bennett was in the MCC two (2) weeks prior to
November 1, 1979. That on October 17, Bennett was
removed to the MCC with reference to a Federal Indict-
ment dealing with stolen motor vehicles in Interstate Com-
merce (1009). That Bennett had already spoken to his
lawyer with reference to making a deal with the govern-
ment to testify for the government in the stolen car case
(1009).
At this time the Trial Court became aware of that the
questioning of Bennett involved an issue as to whether the
appellant’s rights were violated under the Rule of Massiah
377 U.S. 201 (1010). The Court was advised that the ap-
pellant had been arraigned and already has an attorney
(1010-1011).
The Court then allowed the Assistant United States
Attorney to re-examine Bennett on Direct, which was as
follows (1011):
Thet Bennett had been writted to MCC from a New
York State Facility (1011). That no one has instructed
Bennett to act as an agent to investigate or obtain informa-
tion regarding crimes committed in MCC or to attempt to
elicit admissions from individuals also in MCC (1012).
Cross-examination of Bennett then proceeded (1013).
Bennett, at the time he was brought down to MCC,
was looking to make a deal with the government (1013).
Bennett denied that it was part of his deal with the govern-
ment that he was to give all the information that he knew
about any and all crimes, not only those related to the
stolen car case (1013). Bennett was then questioned as to
his written agreement with the government, which stated,
in part, the following:
**Joseph Anthony Bennett agrees to cooperate with agents
of the FBI or other law enforcement agencies, agreed to by
Joseph Anthony Bennett or as this office may require in in-
vestigations arising from information provided by him.’”’
(1014)
The witness stated that while he was at MCC he was
in the process of making his deal with the government
(1015).
At this point, the Court foreclosed any further que.-
tioning on the Massiah point (1016). Exception was taken
to the Court’s ruling (1016). :
The witness was then called to testify in the presence
of the Jury (1029).
His direct testimony was essentially the same as was
stated above, outside of the presence of the Jury
(1029-1033).
9
Cross-Examination of Bennett was as follows:
That after being sentenced on various State charges,
and being confined to the Ulster County Jail, Bennett in-
dicated to his lawyer that he wanted to make a deal with
the federal government (1040). That the deal encompassed
the fact that the United States Attorney would ask the
State Attorneys to recommend minimum sentences on his
three (3) States’ cases (1041). That when Bennett was
brought down to the MCC, he had not yet been sentenced
on the State robbery case (1044). That when he came down
to MCC, he said he would do anything that he could to get
his State robbery count of a possible 25 year sentence cut
down (1045). That after making his deal with the govern-
ment, Bennett testified against his accomplices in the
Federal matter before the Federal Grand Jury (1045-1046).
That after such testimony he remained at MCC. That Ben-
nett was still working on his deal with the government at
the time he met Calder on November 1, (1047).
Bennett then stated that the next time he was brought
over to the United States Attorney’s Office it was in rela-
tion to the stolen car matter. That at that time he told the
United States Attorney what Calder had said to him
(1050).
Bennett then remembered that he spoke to United
States Attorney about Calder’s admissions prior to his
testimony before the Federal Grand Jury in the stolen car
case (1050-1051). Bennett was shown his agreement with
the United States Attorney, which encompassed all other
information he may have, other than the information with
reference to the information of the stolen car (1053).
The long criminal record of Bennett was then discuss-
| ed before the Jury (1056-1066).
+S
nm
10
REASONS FOR GRANTING THE WRIT
POINT I
THE GOVERNMENT’S PROOF WAS INSUFFI-
CIENT TO ESTABLISH THE INTERFERENCE
WITH INTER-STATE COMMERCE WHICH IS
ESSENTIAL IN A HOBBS ACT PROSECUTION
As the defense attorneys contended in the motion to
dismiss the charges, the Government failed to prove that
interstate commerce was affected by the alleged extortion
scheme. Since the evidence was insufficient, the conviction
must be reversed and the indictment dismissed.
The Hobbs Act requires a showing that the extor-
tionate activities affected interstate commerce. United
States v. Merolla, 523 F.2d 51 (2d Cir. 1975). Though the
statute prohibits interference in any way or degree (United
States v. Gambino, 566 F.2d 414, 418 (2d Cir. 1977), Car-
to v. United States, 314 F.2d 718, 732 (9th Cir. 1963),
nevertheless, the Government must show at least a
**potential or subtle’’ effect. United Sttes v. Augello, 451
F.2d 1167 (2d Cir. 1971), cert. denied, 405, U.S. 1070
(1972); United States v. Tropiano, 418 F.2d 1069, 1076 (2d
Cir. 1969), cert. denied, 397 U.S. 1021 (1970). Proof of a
relationship between the extortion and the interstate com-
merce that is ‘‘merely conjectural’’ is inadequate. United
States v. Merolla, supra, 523 F.2d at 54. See United States
v. DeGregorio, 605 F.2d 1184, 1190 (1st Cir. 1979) (the
prosecution must show a “‘realistic probability that an ex-
tortionate transaction will have some effect on interstate
commerce... ’’).
The evidence in the instant case failed to establish any
subtle or potential effect on the interstate commerce con-
ducted by the ‘‘Adam and Eve’’ and ‘‘Guys and Dolls’’
bars. Yourman and Sitzer testified that they purchased from
out-of-state food, garbage bags, and bottles of non-
alcoholic beverages (for the ‘‘Adam and Eve’’) and
domestic champagne (for the ‘‘Guys and Dolls’’). Neither
Pe}
ro
11
owner claimed that he had bought any fewer of these items
as a result of the extortion or that such an effect was likely
to occur in the future. Of the interstate purchases, the only
ones sold by the bars were the beverages. However, the
profit margin was so great and the cost so minimal that
neither establishment would ever reduce their supply
below any possible demand. Bottles that cost Yourman
and Sitzer a few dollars were sold for hundreds of dollars,
obviously because the customers were paying for the com-
pany of the partially clothed waitresses and dancers and
not fo the value of the carbonated apple juice or other
drinks. Under these circumstances, ‘‘the depletion of
assets theory’’ (United States v. Merolla, supra, 523 F.2d
at 54), which applies to normal business operation where
depletion of assets generally affects the extortion victim’s
purchasing power, is simply inapplicable. See United
States v. Addonizio, 451 F.2d 49, 77 (3d Cir.), cert.
denied, 405 U.S. 936 (1972).
Furthermore, any depletion of assets caused by $300
per week extortion was more than compensated for by the
illegal skimming of Sitzer and Yourman. By their own ad- |
missions the two skimmed at least $500 per week from
each of the establishments. As the former night manager
of the bars testified, the owners actually took in two or
three times the amount that they admitted on the stand.
Sitzer’s and Yourman’s low estimates of the profits of the
two bars is attributabale to the fact that they were about to
negotiate with the IRS for the payment of back taxes and
civil penalties. Because they managed to skim far more
than they paid in extortion, Sitzer and Yourman’s assets
were never reduced and their interstate purchases were not
effected. i
In sum, as a result of the peculiar nature of the
business operations in the instant case, it is clear that the
extortion payments could not affect the interstate pur-
chases of the two bars. Because of the Government’s
failure of proof on the issue of the effort upon interstate
commerce, the indictment must be dismissed.
’%
12
POINT II
THE TRIAL COURT IMPROPERLY REMOVED
THE ISSUE OF AFFECT ON INTER-STATE
COMMERCE FROM THE JURY’S CONSIDERA-
TION, RESULTING IN A VIOLATION OF DUE
PROCESS
The Court gave the following charge on the interstate
commerce element of the crime:
Fourth element; the Government must show that interstate
commerce was delayed, interrupted or adversely affected. |
charge you that if you find that the evidence shows beyond
a reasonable doubt that goods were purchased for ‘‘Adam
and Eve’’ and ‘‘Guys and Dolls’’ in interstate or foreign
commerce and that money or property was obtained from
them by extortion, then, as a matter of law, interstate or
foreign commerce was affected (T. 1580).
This charge was erroneous and a violation of due process
of law because it required the jurors to rely on an irrebut-
table presumption to establish an element of the crime.
The Supreme Court has held that:
[T]here are two essential elements of a Hobbs Act crime: -
interference with commerce, and extortion. Both elements
have to be charged. Neither is surplusage and neither can
be treated as surplusage. The charge that interstate com-
merce is affected is critical since the Federal Government’s
jurisdiction of this crime rests only on that interference.
(Stirone v. United States, 361, U.S. 212, 218 (1960)
The Second Circuit’s holding in United States v.
Augello, supra, 451 F.2d at 1170, upon which the district
court relied, that the interstate commerce element is mere-
ly ‘‘jurisdictional’’ and therefore not an issue for the jury
determination, is erroneous.
13
The deleterious effect of extortion upon interstate
commerce is a crucial element of the Hobbs Act. As the
Supreme Court has recently observed:
. . . the purpose of the bill was ‘‘to prevent anyone from
obstructing, delaying, or affecting commerce, or the move-
ment of any article or commodity in commerce by robbery
or extortion as defined in the bill.’’
[United States v. Culbert, 435 U.S. 371, 377 (1978) (em-
phasis in original)
While the presence of interstate commerce gives
federal authorities jurisdiction, §1951 requires additional-
ly, as an element of the crime, that the defendants’ con-
duct ‘‘affect’’ that commerce. Congress’ use of the words
‘‘obstruct, delay or affect’? means that it intended proof
of something more than the presence of interstate com-
merce. Indeed, Congress might have said ‘‘whoever ex-
torts property from anyone involved in interstate com-
merce,’’ but it did not say that; thus, the language actually
used must be given its appropriate significance. Maze v.
United States, 414 U.S. 398, 405 (1974); Rewis v. United
States, 401 U.S. 808 (1971); United States v. Romano, 382
U.S. 136, 144 (1965); Tot v. United States, 319 U.S. 463,
472 (1943); see also United States v. Bass, 404 U.S. 336,
345, 350 (1971). Moreover, the ‘‘significance of labeling a
statutory requirement as ‘jurisdictional’ is not that the re-
quirement is viewed as outside the scope of the evil Con-
gress intended to forestall, but merely that the existence of
the fact that confers federal jurisdiction need not be one in
the mind of the actor at the time he perpetrates the act
made criminal by the federal statute.’’ United States v.
Feola, 420 U.S. 671, 677 n. 9.(1975); see United States v.
Hyde, 448 F.2d 815, 858 (Rives, J., dissenting).
What Augello and similar decisions have done is set
up an irrebuttable presumption with respect to an element
-/ '
14
of the crime. The presumption is that extortion coupled
with the presence of interstate commerce requires a per se
finding of obstruction or interference with commerce.
This results in a violation of due process because it pro-
hibits the jury from considering evidence which may show
that the defendant is not guilty. Screws v. United States,
325 U.S. 91, 107 (1945). Judge Nickerson in fact told the
defense lawyers that they could not argue the issue in sum-
mation. While the attorneys did argue the issue, the
court’s charge effectively instructed the jury to disregard
the defense arguments. The instructions that the court
gave did not merely shift the burden of proof to the defen-
dants (see Mullaney v. Wilbur, 421 U.S. 684, 702-703 n. 31
(1975), but operated as a conclusive presumption—‘“‘an ir-
rebuttable direction by the court to find [an effect on in-
terstate commerce] once convinced of the facts triggering
the presumption.’’ Sandstrom v. Montana, 442 U.S. 510,
517 (1979). As in United States v. United States Gypsum
Co., 438 U.S. 422 (1978)* and Morissette v. United States,
* In Gypsum, where the defendants were charged with
criminal violations of the Sherman Act, the trial court charged:
‘*The law presumes that a person intends the necessary and
natural consequences of his acts. Therefore, if the effect of
the exchanges of pricing information was to raise, fix,
maintain, and stabilize prices then the parties to them are
presumed, as a matter of law, to have intended that
result.’’ (438 U.S., at 430)
Reversing the conviction, the Supreme Court held:
Although an effect on prices may well support an inference
that the defendant had knowledge of the probability of
such a consequence at the time he acted, the jury must re-
main free to consider additional evidence before accepting
or rejecting the inference . . . . [U]ltimately the decision
on the issue of intent must be left to the trier of fact alone.
The instruction given invaded this factfinding function
[Id., at 446].
15
342 U.S. 246 (1952), the presumption ‘‘conflict[ed] with
the overriding presumption of innocence with which the
law endows the accused and which extends to every ele-
ment of the crime and ‘invade[d] [the] factfinding func-
tion which in a criminal case the law assigns solely to the
jury.’’ Sandstrom v. Montana, supra, 442 U.S. at 523.
A due process violation may be avoided by following
the lead of other Circuits, which have upheld or suggested
instructions which leave to the jury the issue of whether
the prosecution has proven an effect on commerce. Thus,
the Third Circuit has approved the following permissive
inference: ‘‘it is the depletion of the resources of a
business by extortion which permits as a reasonable in-
ference if the extortion is established that its operations
are delayed, obstructed, affected.’’ United States v. Ad-
donizio, supra, 451 F.2d at 77 and n. 34 (emphasis in
_ Original). In an en banc decision, the Seventh Circuit has
upheld instructions that required the jury to find, in order
to render a conviction, that the prosecution had proven a
‘frealistic probability’’ that the extortion would affect
commerce or that the ‘‘natural effect’’ of the transaction
would be to affect commerce. United States v. Staszcuk,
517 F.2d 53, 60 and n. 18 (7th Cir. en banc 1975). The
Fifth Circuit Pattern Instruction No. 33 includes the
following:
While it is not necessary to prove that the Defendant
specifically intended to interfere with interstate commerce,
it is necessary as to this issue that the Government prove
that the natural consequences of the acts alleged in the in-
dictment would be to delay, interrupt or adversely affect
‘*interstate commerce,’’ which means the flow of com-
merce or business activities between two or more states.
Similarly, in Federal Jury Practice and Instruction 423-424
(3d ed. 1977), Devitt and Blackmar conclude that “‘[iJt is
better to set forth the specific effects set out in the indict-
16
ment and supported by evidence, and then instruct the
jury that it may find the required interstate element if it
finds that any one of these has been established.”’
The use of a conclusive presumption was especially
prejudicial in the instant case because throughout the pro-
ceeding the defense argued that the Government had failed
to prove any effect upon interstate commerce. Though no
objection was taken to the charge, the defense posi-
tion—that the issue of effect on commerce was a jury
question—was clearly brought to the Court’s attention.
Furthermore, as in United States v. Rodriguez, 465 F.2d 5,
8-9 (2d Cir. 1972), a sufficient objection was made by the
defense’s motion to dismiss the indictment on the ground
that the Government had failed to prove this element. In
any event, the removal of an element of the crime from the
jury’s consideration mandates a reversal of the conviction.
The Courts have repeatedly found ‘‘plain error’’ in the
failure of the trial court to charge an essential element of
the crime (United States v. Fields, 466 F.2d 119, 121 (2d
Cir. 1972) and has even noticed the error when not raised
by the defendants on appeal (United States v. DeMarco,
488 F.2d 828, 832 (2d Cir. 1973); United States v. Alson-
do, 486 F.2d 1339 (2d Cir. 1973); see United States v.
Bosch, 505 F.2d 78, 81-82 (Sth Cir. 1974) (reversed for
failure to instruct on elements of the offense though
**defense counsel participated and acquiesced in each of
the actions challenged’’); see also United States v. Robin-
son, 545 F.2d 301, 306 (2d Cir. 1976) (‘‘Although defense
counsel failed to object to the ‘natural and probable con-
sequences’ charge, we cannot presume a waiver of Robin-
son’s rights under Mullaney v. Wilbur, supra, from the
silent record’’).
Because of the constitutional infirmity in the charge,
the conviction must be reversed and a new trial ordered.
17
POINT III
THE FIFTH AND SIXTH AMENDMENT RIGHTS
OF THE PETITIONER, JULIUS CALDER, WERE
VIOLATED BY THE ADMISSION INTO
EVIDENCE AT THE TRIAL OF THE IN-
CRIMINATING STATEMENTS MADE BY HIM
TO AN UNDISCLOSED GOVERNMENT INFOR-
MANT WHILE IN CUSTODY
The examination of the witness, Bennett, revealed the
following facts:
1. That the Appellant, Julius Calder, had already
been arraigned and had an attorney (1010-1011).
2. That Bennett was in the process or had already
made a deal with the government to reduce his sentences
(1040, 1047).
3. That the written agreement between the government
and Bennett encompassed all information relative to any
and all crimes which may come to his knowledge (1014).
4. That Bennett was still working on his deal with the
government at the time that he met Calder on November |
(1047). '
5. That Bennett would do anything that he could to
get his State robbery count of a possible 25 year sentence
reduced (1045).
The leading case of Massiah v. U.S , 377 U.S. 201, 84
S. Ct. 1199, 12 L. Ed. 2d 246 (1964) held as follows:
**We hold that the petitioner was denied the basic protec-
tions of that guarantee when there was used against him at
his trial evidence of his own incriminating words, which
federal agents had deliberately elicited from him after he
had been indicted and in the absence of his counsel. It is
true that in the Spano case the defendant was interrogated
in a police station, while here the damaging testimony was
18
elicited from the defendant without his knowledge while he
was free on bail. But, as Judge Hays pointed out in his dis-
sent in the Court of Appeals, ‘if such a rule is to have any
efficacy it must apply to ‘indirect and surreptitious inter-
rogations as well as those conducted in the jailhouse. In
this case, Massiah was more seriously imposed
upon . . . because he did not even know that he was under
interrogation by a government agent,”’ (377 U.S. at 206).
In the case at bar, it was anticipated that the govern-
ment did take the position that Bennett was not a govern-
ment agent. That his fortuitous presence at the MCC on
November 1; and, that his chance meeting with the ap-
pellant, Calder, was not arranged by the government. It is
respectfully submitted that such reasoning is specious.
The five (5) points raised at the beginning of this
Point Clearly show that Bennett was an active government
informant willing to do anything and everything, by virtue
of his agreement with the Government,. to enhance his
position with the office of the United States Attorney. It is
respectfully submitted that it would not be speculative to
imagine that had Bennett had the opportunity to talk to
anyone at the MCC, he would have revealed said conver-
sations, if incriminating, to government officials. That is
to say, Bennett was an active informant, whose every act
would be to give information to the government. Talking
to Bennett would be the same as talking through an
eavesdropping device with a direct line to the United States
Attorney’s Office.
In the leading case, U.S. v. Henry, _._U.S.____.27
Cr. L. 3155, (June 16, 1980), the U.S. Supreme Court al-
firmed the reversal of a conviction on facis extremely
similar to the case at.bar.
In Henry, supra, an inmate, one Nichols, who was a
paid informant, was alerted to listen to any statements
made by prisoners regarding the charges against them.
Nichols was told not to initiate any conversations, but to
pay attention to information furnished; 27 Cr. L. 3/56.
19
‘‘The court noted that Nichols had engaged in conversa-
tion with Henry and concluded that if by association, by
general conversation, or both, Nichols had developed a
relationship of trust and confidence with Henry such that
Henry revealed incriminating information, this constituted
interference with the right to the assistance of counsel
under the Sixth Amendment.’’ 27 CrL 3157.
In Henry, supra, the U.S. Supreme Court noted that
the Court of Appeals reviewed the record as showing that
Nichols deliberately used his position to secure in-
criminating information from Henry when counsel was
not present and held that conduct attributable to the
government. 27 CrL 3157.
.» Amn examination of the holding of the Court of Ap-
peals in Henry v. U.S., 590 F.2d 544 (4th Cir.—1978)
reveals the following principle of law:
**Subsequently, several courts held that Massiah did not
apply to all incriminating statements obtained by govern-
ment agents after indictment and in the absence of counsel,
but only to those statements induced by such agents. This
refinement was summarily rejected by the Supreme Court
in two per curiam opinions, McLeod v. Ohio, 381 U.S.
356, 85 S. Ct. 1566, 11 L.Ed. 2d 682 (1965), and Beatty v.
United States, 889 U.S. 45, 88 S. Ct. 234, 19 L.Ed. 2d 48
(1967) McLeod reversed a state court holding that Massiah
was not applicable, absent questioning or deception.
Similarly, Beatty overturned the Fifth Circuit’s determina-
tion that information volunteered to an unknown govern-
ment informer was admissible despite Messiah. The facts
of this case would be identical to those in Beatty except
that Beatty was not in jail at the time of the interception.
Because of the restrictive nature of the jailhouse setting,
the instant case presents a far more compelling situation
for the application of the Massiah rule.’’ Jd. at p. 564.
It is clear, that the damaging nature of any confession
or admission to a trial jury is of such a nature to.rise to the
20
degree of plain error.
The Court of appeals, in Henry, supra, found that
there was other evidence introduced linking Henry to the
crimes, but even so, the Court could not say that beyond a
reasonable doubt Nichols’ testimony did not influence the
jury’s verdict. Id. 590 F.2d at page 547. \t is respectfully
submitted that the concluding remarks of the Supreme
Court in Henry, supra, is applicable to the case at bar:
**When the accused is in the company of a fellow inmate
who is acting by prearrangement as a government agent the
same cannot be said. Conversation stimulated in such cir-
cumstances may elicit information that an accused would
not intentionally reveal to persons known to be govern-
ment agent. Indeed, the Massiah Court noted that if the
Sixth Amendment ‘“‘is to have any efficacy it must apply to
indirect and surreptitious interrogations as well as those
conducted in the jailhouse.’’ The Court pointedly observ-
ed that Massiah was more seriously imposed upon because
he did not know that his codefendant was a government
agent.”’ 27 CrL 3158.
It is respectfully submitted that the appellant, Julius
Calder’s Fifth and Sixth Amendment Rights were violated
by the incriminating statements made by him while in
custody.
21
CONCLUSION
FOR THE ABOVE REASONS, A WRIT OF CER-
TIORARI SHOULD BE ISSUED TO REVIEW THE
JUDGMENT ORDER AND DECISION OF THE
UNITED STATES COURT OF APPEALS, SE-
COND CIRCUIT.
Respectfully submitted,
HARVEY L. GREENBERG, ESQ.
Attorney for Appellant
Office & P.O. Address
16 Court Street
Brooklyn, New York 11241
(212) 625-6578
4
ow i“
.
~
..® UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
a
Nos. 353, 382, 476,.477—September Term, 1980
(Argued November 13, 1980
Decided February 10, 1981)
Docket Nos. 80-1245, i247, 1249, 1281
se
UNITED STATES OF AMERICA,
Appellee,
—) —
JosePH CALDER, JULIUS CALDER, THOMAS DiDONATO and
GEORGE MaNcE, : :
my ik Se \ oh Appellants.
aN" i —_$§
Before:
WATERMAN, MANSFIELD and VAN GRAAFEILAND,
Circuit Judges.
i
Appeals from judgrnents convicting Joseph Calder,
Julius Calder, and George Monge on two counts of
obstruction of commerce by extortion and one count of
conspiracy and Thomas DiDonato on one count of con-
spiracy, following a jury trial before Judge Nickerson in
the United States District Court for the Eastern District
of New York. Appellant Monge also asserts that the
District Court erred in imposing sentence upon him.
Affirmed in all respects.
coal
2a
KENNETH KAPLAN, New York, N.Y. (Kaplan &
Katzberg, New York, N.Y., for Appellant
JOSEPH CALDER
HARVEY L. GREENBURG, New York, N.Y., for
Appellant JULIUS CALDER
GERALD L. SHARGEL, New York, N.Y. (Gra-
ham Hughes, of Counsel, on the Brief),
for Appellant THoMAS DiDONATO
BARRY Bassis, New York, N.Y. (Legal Aid
Society, Federal Defender Services Unit,
New York, N.Y.), for Appellant GEORGE
MONGE
EDWARD R. KORMAN, United States Attorney,
Eastern District of New York (Thomas P.
Puccio, United States Department of Jus-
tice, Attorney-in-Charge; Kenneth F. Mc-
Callion, Joel Cohen, Special Attorneys,
of Counsel), for Appellee UNITED STATES
OF AMERICA
aad
VAN GRAAFEILAND, Circuit Judge:
This case involves the extortion of money from two
bars with the descriptive names of “Guys and Dolls” and
“Adar. and Eve”, located in midtown Manhattan. The
proof, which we must view in the light most favorable to
the Government, shows that, beginning in September
1978, Joseph Calder, accompanied by George Monge,
extorted $300 weekly from each of these bars. There was
evidence that the extortion continued for over a year, the
take from each bar totalling approximately $15,000.
3a
Eventually, the FBI was called upon for help, and it
devised a plan to halt the extortion and to apprehend
those responsible for it. The gist of this plan was that FBI
agents would pose as members of a rival gong attempting
to shake down the same bars. Through this ruse, the
Government secured ample, properly-admitted evidence
tying Joseph Calder’s brother Julius and Thomas Di-
Donato to the extortion scheme.' On the night of October
31, 1979, all four appellants were arrested while in a car
parked outside the Adam and Eve. Joseph Calder had
just collected the weekly $300 payment and had informed
the manager that he and DiDonato “would be around
from now on” to pick up the money. Monge was carrying
a pistol, and a baseball bat was found in the back seat of
the car.
Appellants were convicted under the Hobbs Act, 18
U.S.C. § 1951, which makes federal offenses of robbery,
extortion, and conspiracy to rob or extort, if they “in any
way or degree” affect interstate commerce. The Calder
brothers and Monge were convicted on two substantive
counts and one conspiracy count; DiDonato was con-
victed on only the conspiracy count. Their principa!
argument on appeal is that the evidence was insufficient
to show the impact on interstate commerce required by
the statute and that District Judge Nickerson erred in
instructing the jury on this point. We find no merit in
either contention.
The Government proved that both bars purchased food
and other items from firms in New Jersey, and that Adam
,
' We find no merit in appellant DiDonato'’s argument that the evi-
dence was insufficient to establish that he was a conspirator in the
extortion scheme. His own statements showed him to be a person of
authority in the extortion group, and this evidence was buttressed by
properly-admitted testimony of his fellow conspirators.
*'
4a
and Eve, a “juice bar” without a liquor license, purchased
de-alcoholized wine from a Canadian company. Extor-
tion’s effect upon such interstate commerce need only be
minimal to give rise to Hobbs Act jurisdiction. United
States v. Augello, 451 F.2d 1167 (2d Cir. 1971), cert.
denied, 405 U.S. 1070 (1972). “Given the sweeping power.
of Congress under the Commerce clause, . . . particu-
larly evident in the Hobbs Act, . . . it is enough that the
extortion ‘in any way or degree’. . . affects commerce,
though its effect be merely potential or subtle.” Jd. at
1169-70 (citations omitted). Here, the resources of each
bar were depleted by $15,000 in a period of one year.
There can be little question that this depletion was suffi-
ciently deleterious to the efficient operation of these
establishments to affect, albeit potentially or subtly, their
interstate transactions. This was sufficient to sustain
Hobbs Act jurisdictions. See United States v. Daley, 564
F.2d 645, 649-50 (2d Cir. 1977), cert. denied, 435 U.S. 933
(1978).
Judge Nickerson instructed the jury that if it found
“beyond a reasonable doubt that the goods were pur-
chased for ‘Adam and Eve’ and ‘Guys and Dolls’ in
interstate or foreign commerce and that money or prop-
erty was obtained from them by extortion, then, as a
matter of law, interstate or foreign commerce was af-
fected.” The substance of this charge has been approved
in this and other circuits on numerous occasions. See,
e.g., United States v. Augello, supra, 451 F.2d at 1170;
United States v. Cerilli, 603 F.2d 415, 423-24 (3d Cir.
1979), cert. denied, 444 U.S. 1043 (1980). It was for the
court to determine as a matter of law the jurisdictional
question of whether the alleged conduct affected inter-
state commerce; it was for the jury to determine whether
the alleged conduct had in fact occurred. See United
5a
States v. Ricciardi, 357 F.2d 91, 94 (2d Cir.), cert. denied,
384 U.S. 942 (1966).
The only other challenge to the verdict which merits
comment involves the admission of certain evidence
against Julius Calder. Julius Calder spent the day follow-
ing his arrest in the Metropolitan Correctional Ceniei
where he met a fellow inmate, Joseph Bennett. During a
conversation with Bennett, Calder admitted that he had
been shaking down a topless bar in Manhattan. Bennett
had been indicted for conspiracy to transport stolen
motor vehicles in interstate commerce. Although Ben-
nett’s attorney had discussed with the United States
Attorney the possibility that his client might cooperate in
the stolen car case, no cooperation agreement was entered
into until November 16, 1979, some two weeks after the
conversation between Calder and Bennett.
Citing United States v. Henry, 48 U.S.L.W. 4703 (June
16, 1980), Calder argues that his Fifth and Sixth Amend-
ment rights were violated when the incriminating state-
ment was admitted into evidence. We disagree. The Su-
preme Court held in Henry that the Government had
deliberately elicited a jailhouse admission made by the
appellant to a fellow inmate who was a paid informer
working on a contingent fee basis. While holding the
testimony of the informer to be inadmissible, the Court
implicitly approved the admission of similar incriminating
testimony by another of Henry’s cell mates who was not a
paid informer and had no arrangements to report on
conversations with Henry. /d. at 4704 n.3 and 4706 n.13.
Bennett was not acting as a Government agent when he
talked with Calder. Like the neutral witness in Henry, he
was not disqualified.
Appellant Monge was fined $5,000 on Count One and
sentenced as a youth offender to seven years in the
6a
custody of the Attorney General. Sentence was suspended
on Count Two, and Monge was placed on probation for
five years consecutive to Count One. Sentence also was
suspended on Count Three, and Monge was placed on
probation for three years consecutive to Count Two.
Appellant Monge contends that the sentence under
Counts Two and Three were improper.
In making this argument, Monge relies upon Ninth and
Tenth Circuit holdings, which require sentences imposed
on youth offenders under multi-count indictments to be
consistent in order not to thwart the rehabilitative intent ©
of the Youth Corrections Act. See United States v.
Magdaleno-Aquirre, 590 F.2d 814, 815 (9th Cir. 1979);
United States v. Ortiz, 513 F.2d 198 (9th Cir.), cert.
denied, 423 U.S. 843 (1975); Roddy v. United States, 509
F.2d 1145, 1147 (10th Cir. 1975); Price v. United States,
384 F.2d 650, 652 (10th Cir. 1967). In United States v.
Ortiz, the twenty-one year old defendant was sentenced
under 18 U.S.C. § 5010(b) on a narcotics conspiracy
count and was given a consecutive five-year sentence as
an adult on the companion substantive count, with the
sentence suspended and the defendant placed on proba-
tion. The court vacated the five-year sentence, holding
that it was inconsistent for the district judge to treat the
defendant as an adult, after having found by implication
that he would derive benefit from the rehabilitative treat-
ment to be provided under the Youth Corrections Act.
The reasoning of the foregoing cases is not without
merit. However, it does not apply to our case. Judge
Nickerson did not impose sentence under Counts Two
and Three. He suspended the imposition of sentence and
simply placed the defendant on consecutive terms of
probation. This he was permitted to do by the express
language of the Act.
Ta
Section 5023 provides that nothing in the Act “shall
limit or affect the power of any court to suspend the
imposition or execution of any sentence and place a youth
offender on probation . . . .” It also provides that the
Act shall not be construed to repeal or amend the provi-
sions of the general probation chapter, section 3651 of
which permits a court to suspend the imposition or
execution of sentence and place the defendant on proba-
tion. See Durst v. United States, 434 U.S. 542, 543-44,
549-50 (1978); United States v. Buechler, 557 F.2d 1002,
1006 (3d Cir. 1977).
Commitment under sections 5010(b) and 5010(c) is “in
lieu of the penalty of imprisonment otherwise provided
by law.” Durst v. United States, supra, 434 U.S. at 552.
When a court imposes probation and suspends the impo-
sition of sentence, he is not sentencing the defendant to
prison. In the strict sense of the word, he is not “sentenc-
ing” the defendant at all. See Dunn v. United States, 56\
F.2d 259, 261 (D.C. Cir. 1977); United States v. Chappell,
480 F. Supp. 321, 324 (W.D. Okla. 1978). Assuming, for
the argument, that sentences imposed on all counts in a
youth offender case must be consistent, it does not
_necessarily follow that sentence must be imposed on all
counts. The imposition of probation may be a proper
exercise of the “flexibility [allowed a district judge] in
choosing among a variety of treatment settings and pro-
grams tailored to individual needs.” Durst v. United
States, supra, 434 U.S. at 545. Like the fines and orders
of restitution approved by the Court in Durst, suspension
of sentence and probation may, in a particular case, be
consistent with the rehabilitative intent of the Act.
. The judgments are affirmed.
8a
MANSFIELD, Circuit Judge (Concurring in part and dis-
senting in part):
I concur in all of Judge Van Graafeiland’s carefully
considered and well-reasoned opinion except that portion
upholding the district court’s placement of defendant
Monge on probation for periods beyond the seven-year
term imposed upon him as a youth offender pursuant to
18 U.S.C. § 5010(c).' In my view the court was precluded
by 18 U.S.C. § 5017(d)? from placing Monge on proba-
tion for the additional periods totalling five years beyond
the seven-year term.
The district court was clearly authorized by § 5010(c) to
impose a seven-year prison term on Monge. Indeed Judge
Nickerson could pursuant to § 5010(c) have imposed
concurrent terms upon Monge as a youth offender of up’
to 20 years on Counts 2 and 3, as authorized by 18 U.S.C.
§ 1851. In the alternative, the district court could pur-
i Section $010(c) provides:
“(c) If the court shall find that the youth offender may not be
able to derive maximum benefit from treatment by the Commission
prior to the expiration of six years from the date of conviction it
may, in lieu of the penalty of imprisonment otherwise provided by
law, sentence the youth offender to the custody of the Attorney
General for treatment and supervision pursuant to this chapter for
any further period that may be authorized by law for the offense or
offenses of which he stands convicted or until discharged by the
Commission as provided in section 5017(d) of this chapter.”
2 Section 5017(d) provides:
“(d) A youth offender committed under section $010(c) of this
chapter shall be released conditionally under supervision not later
than two years before the expiration of the term imposed by the
court. He may be discharged unconditionally at the expiration of
not less than one year from the date of his conditional release. He
shall be discharged unconditionally on or before the expiration of
the maximum sentence imposed, computed uninterruptedly from
the date of conviction.”
9a
suant to § 5023’ have suspended the imposition or execu-
tion of sentence and placed Monge as a youth offender on
probation. However, once the district court chose to
impose a prison sentence on Monge, the sentence became
subject to the terms of § 5017(d), which provides that a
youth offender “shall be discharged unconditionally on
or before the expiration of the maximum sentence im-
posed, computed uninterruptedly from the date of con-
-viction.” (Emphasis supplied).
As Judge Van Graafeiland correctly notes, the imposi-
tion of probation under Counts 2 and 3 for terms extend-
ing beyond the seven-year sentence imposed on Monge as
a youth offender under Count | was not strictly a “sen-
tence” of the defendant. However, it clearly placed a
“condition” on the discharge of Monge upon expiration
of the maximum sentence (seven years) imposed on him
‘as a youth offender under Count 1. The probation terms
therefore violated § 5017(d).
I would vacate the probation terms imposed on Monge
on Counts 2 and 3 and remand the case for sentencing on
these two counts. Upon such a remand Monge would face
the risk that Judge Nickerson, upon learning that he was
powerless to impose probation consecutively to the dis-
charge of Monge as a youth offender, might decide that
he was justified under the circumstances in imposing
prison terms on these counts exceeding the seven-year
period imposed on Count 1. See: North Carolina vy.
Pierce, 395 U.S. 711 (1968). ,
3 Section 5023(a) provides:
“(a) Nothing in this chapter shall limit or affect the power of any
court to suspend the imposition or execution of any sentence and
place a youth offender on probation or be construed in any wise to
amend, repeal, or affect the provisions of chapter 231 of this title or
the Act of June 25, 1910 (ch. 433, 36 Stat. 864), as amended (ch. 1,
title 24, of the D. of C. Code), both relative to probation.”
10a
JUDGMENT AND PROBATION
COMMITMENT ORDER
*“* *
Plea Guilty, and the court being satisfied that there is
a factual basis for the plea,
There being a finding/ verdict of Guilty to counts one,
two and three.
Finding & Judgment:
Defendant has been convicted as charged on the of-
fense of violating Title 18, U.S.C., Sections 1951 and 2, in
that from in or about September 1978, to on or about Oc-
tober 31, 1979, both dates being approximate and in-
clusive, within the Eastern District of New York, and
elsewhere, the defendant, together with others, did know-
ingly, wilfully and unlawfully, combine, conspire, con-
federate and agree to and, did, obstruct, delay and affect
commerce, as that term is defined in Section 1951(b)(3) of
Title 18, U.S.C., and the movement of articles and com-
modities in commerce, by extortion.
Sentence or Probation Order:
The Court asked whether defendant had anything to
say why judgment should not be performed. Because no
sufficient cause to the contrary was shown, or appeared to
the court, the court adjudged the defendant guilty as
charged and convicted and ordered that: The defendant is
hereby committed to the custody of the Attorney General
or his authorized representative for imprisonment for a
period of seven (7) years on counts one and two concur-
rent and a fine of Ten Thousand Dollars ($10,000.00) con-
current. Imposition of sentence is suspended on count
three, and defendant is placed on probation for five (5)
years consecutive to counts one and two. Execution of
sentence stayed pending appeal.
Additional Conditions of Probation:
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.