Petition — Calder v. United States

RECEIVED

80-6291 MAR 4 14s

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1980

.

»

ue

No.

JOSEPH CALDER,

Petitioner,

-VS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

KENNETH J. KAPLAN

Attorney for Petitioner

JOSEPH CALDER

233 Broadway

New York, New York 10007

(212) 964-9666

ie

TABLE OF CONTENTS

Table of Authorities.

Opinion Below .

Jurisdiction

! Questions Presented for Review

Constitutional Provisions, Statutes and Rules

‘* Involved . eae j

Statement of the Case .

Reason for Granting the Writ

1. There was insufficient proof at

trial to establish the jurisdic-

tional element under the Hobbs Act.

Conclusion

TABLE OF CASES AND OTHER AUTHORITIES

CASES:

United States v. Addonizio, 451 F2d 49 at 77

(3d Cir. ee oa wae «ke. ee ee si

ited States v. Augello, 451 F2d 1167, 1169-70

Ua cis 197) . cere denied, 405 U.S. 1070 (1976).

United States v. Crowley, 504 2d 992, 997

COU, ROTORS 6 ue oe Se ee ee

ates v. Daley, 564 F2d 645, 649

Cir.), cert. denied, 435 U.S. 933 (1977)

United States v. Demet, 486 F2d 816 (7th Cir 1973)

cert denied, 416 U.S. 969 (1974) . .. +++ +s:

yyiges States v. Merolla, 523 F2d 5l, 54 (2d Cir.

United States v. Staszcuk, 5170 2d 53, 60

t r en banc) cert. denied,

433 U.S 4 4

. 837 (1975).

ed States v. Tropiano, 418 F2d 1069, 1076

eri Cir. 19609), cert. denied, 397 U.S. 1021 (1970)..

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254 (1). The judgment of the Court of Appeals was filed on

January 31, 1979.

QUESTION PRESENTED FOR REVIEW

Whether there was sufficient proof at trial to establish the

jurisdictional element under the Hobbs Act.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RUT i.” T(NVOLVED:

United States Constitution

This case involves the Commerce Clause of the United States

Constitution.

PEGS LL TE Re + ee He

re}e

Statutee:

This case involves the application of the commerce clause to

wage

the Hobbs Act, 18 U.S.C. §1951.

RECEIVED :

MAR 4 1981

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

JOSEPH CALDER,

Petitioner,

-vs- :

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI Se

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, JOSEPH CALDER prays that a writ of certiorari issue

to review the judgment of the United States Court of Appeals for the

Second Circuit entered against him on February 10, 1981, which affirmed:

(1) a district court judgment convicting petitioner of extortion in

violation of 18 U.S.C. § 1951.

Opinions Below

The Court of Appeals affirmed each of the judgments of convictior

in an opinion, United States v. Calder et al., F. 2d 2d Circuit Slip .

Sheet Ops., September Term, 1980, at p.1365.The Opinion of the Court

of Appeals is annexed hereto as Appendix "A".

—

STATEMENT OF THE CASE

A. THE GOVERNMENT'S CASE

The Government's case consisted of witnesses who were the owners

and employees of two "topless bar" establishments in Manhattan, known

as “Adam ak Eve" and "Guys and Dolls Au Go Go", who testified that

during the period from September, 1978 to October, 1979 appellant

Joseph Calder demanded and received three hundred dollars a week as

"protection money" from each business. In general, each of the wit-

nesses 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 2

a bribe to a building inspector in late 1978 (T.106-107, 261-263).

Fimbel, a police officer concerned with losing his job and his pension,

agreed to cooperate with the New York City Department 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 Sizer, owner of the :

bar, Calder was paid three hundred dollars a week from the cash registe=

(T.98). This sum was paid to apvellant every Wednesday when he

visited the bar, usually accompanied by co-defendant George Monge,

who carried a gun (T. 102-104).

ae

¥Numbers preceded by "I" cefer to pages of trial transcript

Although Fimbel was "fearful" that he would be hurt, he himself

carried a gun strapped to his ankle and would himself serve as a

"bouncer" for rowdy patrons in the bar (T. 129, 227, 258-259) . Further-

more, 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 avpellant, 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 named 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 Guys 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 ex-

tensive "skimming" operations which allowed them to take hundreds of

thousands of dollars from their businesses 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 addition neither have filed amended returns or paid back taxes

due and owing the Government (T. 617, 745).

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”.

_¥There was a serfous 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-servi

480-486, 630). y q erving establishments (T

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). According 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 the course of these conversations no threats were made by

appellant Joseph Calder, who indicated that he didn't know what

they (the agents posing as extortionists) were talking about (T.910).

It is significant 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).

In October, 1979 all the defendants were arrested in a car outside

the Adam and Eve Bar after Joseph Calder was alleged to have received

a three hundred dollar payment. 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).

B. THE DEFENSE CASE

None of the defendants testified on their own behalf. Joseph

Calder called three witnesses. The first two, Nora Petrella and

Joseph Ricevuto, were employees at Adam and Eve and Guys and Dolls,

a rR Ore

respectively. They both testified that Joseph Calder was at the

premises not only on Wednesdays, but some three to four days a week,

staying there four or five hours each day (T. 1188-1189, 1233). In

addition, they stated that he performed certain functions inside the

premises, such as calming down rowdy patrons and stopping fights (T.

1195, 1235). There was further testimony that Joseph Calder's function

in the bar might have been to protect against raids by the police or

liquor authorities (T. 1226-1230).

Appellant also called Father Sebastian Buccellato, who explained

that the nickname "Joe Priest" derived from appellant's days as a

ceudnarten and that he was known 2s such among the clergy 4s well as

others in the community (T. 1263-1265).

Co-defendant George Monge called Guy Maggiore as a witness.

Maggiore, a twenty-one year old friend of Monge, testified that Monge

was dating Calder's daughter and would often drive him around because

Calder was a diabetic and had once "blacked out” behind the wheel.

Maggiore testified that he had also driven appellant into the city

upon occasion (T. 1281-1286) .

REASONS FOR GRANTING WRIT

THERF. WAS INSUFFICIENT PROOF AT

TRIAL TO ESTABLISH THE JURISDICTIONAL

ELEMENT UNDER THE HOBBS ACT.

“the Government's proof at trial was insufficient to satisf

the jurisdictional requirement of the Hobbs Act. The evidence

failed to provide a nexus between the three hundred dollars rec:

weekly by appellant and any impact, however minimal, on interst-

commerce. Furthermore, there was no evidence that the victims’

chases in interstate commerce were in any degree depleted by pa”

to appellant.

The pertinent language of the Hobbs Act, 18 U.S.C., 1951,

vides in pertinent part:

Whoever in any way or degree obstructs, delays,

ox, affects commerce OF tis merce, by Topbery

or extortion . . . is in violation of the Act.

Although the courts has construed the above language to includ

affects on commerce that are de minimus, “potential” or “subtle”

United States v. Augello, 451 F2d 1167, 1169-70 (2d Cir. 1971),

denied, 405 U.S. 1070 (1972); United States v. Tropiano, 418 F2

1076 (2d Cir. 1969), cert. denied, 397 U.S. 1021 (1970); Unite:

v. Daley, 564 F2d 645, 649 (2d Cir.), cert denied, 435 U.S. 933

some effect has always been a necessary predicate. In the inst

case, however, there is simply no nexus between the acts allege

interstate commerce. In short, the interstate commerce allegat:

merely a sham to provide federal jurisdiction.

The testimony adduced at trial, offered to provide this es

element of the offense beyond a reasonable doubt, was given sho

shrift by the prosecution 4

1 TESTIMONY OF SOL SITZER:

Q Now, during the years 1978 and 1979, di

‘ used at Acam and Eve? , did you purchase £.

es.

The Government failed to produce any invoices or documents to

show that goods were actually from out of state, nor were there

any inquiries into how many purchases were made from out of state

Teontinued. F

Q And basically where was that purchase (sic) from?

. Flagstaff Food Corporation in New Jersey.

Q Did you also purchase juices which were sold at Adam

and Eve?

A. Wines, juices, champagnes, non-alcoholic beverages,

beers.

Q When you say wines, do you mean the de-alcoholized

wines?

A De-Alcoholized, non-alcoholic wines that came from Canada.

Q Where did you purchase juices from or wines?

A The wines, Martinelli Wine Company in Canada.

THE COURT: In Canada?

THE WITNESS: Yes, sir.

Q_ And from which company did you purchase such items as

garbage bags, etc.?

A There is a Minisco in New Jersey. Minisco Plastic Bag

Company, I'm not sure. I know its Minisco. (T.456-457)

TESTIMONY OF ARNOLD YOURMAN

Q Now, during this period of time, 1978 through 1979, from

what corporation did Guys and Dolls purchase its food?

A Flagstab (sic) Corporation. They were a New Jersey

Company.

Q Did you have any other goods shipped from out of State?

A Yes. From outside the State we used to get our garbage

bags. It was called Municipal Company. They are in

Palisades Park, New Jersey. We got our ballons (sic), our

decorations from a compeny in -- I think it's in East

Rutherford. I'm not sure of the address-

2 = you purchase any juices at Guys and Dolls?

es

Q Did any of that come from out of State?

A No, not the juices.

Q But the food came from out of State?

A Correct.

Q Now, during the year from approximately September of '78

through September of -- or October, 1979, how much money

was paid out of the assets of Guys and Dolls to Joseph

Calder?

A Approximately $15,000.

Q Did that have any impact on your profits?

A Yes, it did.

Q To what extent?

A $15,000 that I didn't have to work with (T. 687-688).

pencaxte In addition, Sol Sitzer testified on cross-examination

that the bottles of cider for which he paid two dollars were sold

for three hundred and fifty to five hundred dollars each (T. 520).

It was painfully obvious that the customers who frequented the Adam

and Eve and the Guys and Dolls establishments were not paying this

money for the beverages, but because of the topless women who worked

in the bar, who provided sexual services (T. 637). To suggest that

somehow the’ resources of these bars were depleted by the payments to

Calder so as to diminish their purchasing power in interstate commerce

(See United States v. Merolla, 523 F2d 51, 54 (2d Cir. 1975); United

States v. Addonizio, 451 F2d 49 at 77 (3d Cir. 1972), cert. denied,

United States v. Demet, 486 F2d 816 (7th Cir. 1973), cert. denied,

.

e

.

*

—

416 U.S. 969 (1974), is so highly conjectural as to be unrealistic.

The most persuasive factor which militates against a finding of

any interference with interstate commerce is the testimony of owners

Yourman and Sitzer regarding their extensive skimming of cash (hundreds

of thousands of dollars) from the businesses in question (T. 482, 563,

574, 702, 777). Ona daily basis large amounts of cash were taken

from the cash register by the owners and appropriated by them to

evade paying income tax. It is not disputed that Calder was paid

out of these cash receipts. Accordingly, the evidence shows that

the cash payments to appellant merely depleted the owners’ own cash

—=e +

e-

Government counsel expressed his own concern whether there was

sufficient evidence to sustain the jurisdictional element when,

near the conclusion of the Government's case, he asked the Court

whether the evidence was "sufficient from a legal standpoint.”

1 ee refused to give an “auvisory opinion on the issue (T.1091-

Appellant Calder move pursuant to Rule 29 of the Federal Rules of

Criminal Procedure for a dismissal based upon the failure of the

Government to prove the affect on interstate commerce, which motion

was denied by the Trial Court (‘. 1598-1599).

- RPS Pactre o

—<—<£ = -- i

hoards, and in no way depleted their businesses’ purchasing power

to pay their distributors (who would surely be paid by check and

taken as an ordinary tusiness deduction) . Accordingly, absent the

showing of an “actual impact” on interstate commerce, United States

v. Crowley, 504 2nd 992, 997 (7th Cir. 1974), or a “realistic prob-

ability”, United States v- Staszcuk, 517 24 53, 60 (7th Cir.)

(en banc), cert. denied, 433 U.S. 837 (1975), that the extortionate

activity,would have some effect on interstate commerce, however

small, the Government failed in its burden of proving the requisite

nexus. We are thus left with a local matter of no substantial fede-

ral concern.

CONCLUSION ;

For all the above reasons, the petition for a writ of

certiorari should be granted.

; Respectfully submitted,

Assigned Coussel for

petitioner JOSEPH CALDER

New York, New York

February 23 , 1981

UNITED STATES COURT :OF APPEALS

For the Second Cireuit

Nos. 353, 482, 476, 477 September Term 1980

(Argued .November 13, 19806 Decided firs I, fh]

Docket Nos. 80-1245, 1247, 1249, 1281

‘ 7 YJ S |

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UNITED STATES OF AMERICA, ‘(\ lo

Appellee,

Vv.

JOSEPH CALDER, JULIUS CALDER,

THOMAS DI DONATO and GEORGE

MONGE,

Appellants. .

BEFORE: WATERMAN, MANSFIELD and VAN GRAAFEILAND, Circuit

Judges.

Appeals from judgments 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 conspiracy, following a jury

trial before Judge Nickerson in the United States District

Court for the Eastern District of New York. Appeliant Monge

also asserts that the District Court erred in imposing sen-

tence upon him. Affirmed in all respects.

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.

(Graham Hughes, of Counsel, on

the Brief), for Appellant THOMAS

DI_DONATO

BARRY BASSIS,. New York, N.Y.

(Legal Aid Society, Federal

Defender Services Unit, New York,

N.Y.), for Appellant GEORGE MONGE

ree are 6 00 10ee ene

i —-

EDWARD Rk. KORMAN, United St raters,

Attorney, Eastern District ol!

New York

(Thomas P. Puccio, United Statcs

Department of Justice, Attorney~

in-Charge; Kenneth F. McCallion,

Joel Cohen, Special AttorneyS,-

of Counsel), for Appellee UNITED

STATES OF AMERICA r'

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VAN SuUAAF?H Chalets’, § Boe eet

4

This case involves the ext_rtion of money from two

bars with the descriptive names of "Guys and Dolls" and

"Adam and Eve", located in midtown Manhattan. The proof,

which we must view in the light most favorable to the Govern-

ment, shows that, beginning in September 1978, Joseph Calder,

accompanied by George Monge, extorted $300 weekly from each

of these bars. There was evi lence that the extortion con-

tinued for over a year, the take from each bar totalling

approximately $15,000.

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 gang attempting

to shake down the same bars. Through this ruse, the Govern-

ment secured ample, properly-admitted evidence tying Joseph

Calder's brother Julius and Thomas DiDonato to the extortion

scheme.

On the night of October 31, 1979, all four appel-

lants 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 convicted on only the

conspiracy count. Their principal argument on appeal is

that the evidence was insufficient to show the impact on

interstate commerce required by the statute and that

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District Judge mickerson erred an instructing the jury on hy

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 and

ta4

Eve, a "juice bar" without a liquor license, purchased

de-alcoholized wine from a Canadian company. Extortion'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 (2a Cir. 1971), cert. denied, 405 |

U.S. 1070 (1972). "Given the sweeping power of Congress oni

the Commerce clause, . . . particularly evident in the Hobbs |

Act, . . . it is enough that the extortion ‘in any way or f

degree' . . . affects commerce, though its effect be merely

potential or subtle." Id. 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 sufficiently deleterious to the efficient oper-i4

ation of these establishments to affect, albeit potentially |

or subtly, their interstate transactions. This was

sufficient to sustain Hobbs Act jurisdictions. See United q

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- "4

chased for ‘Adam and Eve' and ‘Guys and Dolls’ in interstate )

or fureign commerce and that money or property was obtained

from them by extortion, then, as 4 matter of law, interstate

or foreign commerce was affected.” The substance of this

charge has been approved in this and other circuits on :

numerous occasions. See, ©-9-» United States v. Augello, *

i.

supra, 451 F.2d at 1170; United States v. Cerilli, 603 P.2d 7

415, 423-24 (3d Cir. 1979), cert. denied, 444 U.S. 1043

-4-

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(1980). It was for the court ty determine as a matter of

law the jurfeaictional question of whether the alleged |

conduct affected interstate commerce; it was for the jury

to determine whether the alleged conduct had in fact occurred.

See United states V- Ricciardi, 357 F.2d 91, 94 (2a 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 following his

arrest in the Metropolitan correctional Center, where he met

a fellow inmate, Joseph Bennett. During 4 conversation with

Bennett, Calder admitted that he had been shaking down 4 top-

less bar in Manhattan. Bennett had been indicted for con~

spiracy to transport stolen motor vehicles in interstate

commerce. Although Bennett'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 petween Calder and Bennett.

citing United States V- Henry, 48 U.S.L.W. 4703

(June 16,: 1980), Calder argues that his Fifth and Sixth

Amendment rights were violated when the incriminating state~

ment was admitted into evidence. We disagree. The Supreme

Court held in Henry that the Government had deliberately }

elicited 4 jailhouse admission made by the appellant to a '

fellow inmate who was 4 paid informer working on 4 contingent

fee basis. while holding the testimony of the informer to

be inadmissible, the Court implicitly approved the admis-

sion of similar incriminating testimony by another of

Henry's cell mates who was not 4 paid informer and had no

'*

arrangements to report on conversations with Henry- Id. at ‘

'

4704 n.3 and 4706 n.13- Bennett was not acting 4s & sovernmen

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agent dhen 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 custody

of the Attorney General. Sentence was ‘suspended on Count i |

Two, and Monge was - placed on probation for five years con~

secutive to Count baie 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 <he Youth Corrections Act. See United States v.- Magdalero-

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 @

narcotics conspiracy count and was given & consecutive k

five-year sentence 4S an adult on the companion substantive

count, with the sentence suspended and the defendant placed

on probation. The court vacated the five-year sentence,

holding that it was inconsistent for the district judge te

treat the defendant as an adult, after having found by impli

cation that he would derive benefit from the rehabilitative

treatment to be provided under the Youth Corrections Act.”

The reasoning of the foregoing cases is not withdut

merit. However, it does not apply to our case. Judge

Nickerson did not impose sentence under Counts Two and Thre«

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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.

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

—_—_—_— ee ed. ee eee eee >

offender on probation... ." It also provides that the

Act shall not be construed to repeal or amend the provisions

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 probation. 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 imposition of — ~

sentence, he is not sentencing the defendant to prison.

In the strict sense of the word, he is not “sentencing”

the defendant at all. See Dunn v. United States, 561 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 programs 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

-7-

rehabilitative intent of the Act.

The judgments are affirmed.

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FOOTNOTES :

2 ‘ * ‘ |

1. We find no merit in appeilant DiDonato's argument that ;

. the evidence was insufficient to establish that he was a

: conspirator in the extortion scheme. His awn statements |

) :

’ ° showed him to be a person of authority in the extortion

° group, and this evidence was buttressed by properly-admitted

Be”

if testimony of his fellow conspirators. | 3

8 i

! '

9

; 10

11

7

' 12

. ' 18

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14

' 15 .

16

; 17

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18

19

20

21

22

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a

46

CYT Boone

S154 tw ag

‘UNITED STATES

v. CALDER

| MANSFIELD, Circuit Judge (Concurring in part

dissenting in pratt

T concur in all Of Judge Van Graa

rine

carefully considered and well-reasoned Opinio

portion upholding the district court's placement of

defendant Monge on Probation for periods tleiaias the seven-

year term imposed upon*hiin as a youth offender Pursuant to

18 U.S.C. $5010(c).1/ In my view the court was precluded

by 18 U.S.c. $5017(d)2/ from Placing Monge on probation '

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

Pursuant to §50233/ have Suspended the imposition or

execution 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 imposed,

computed uninterruptedly from the date of conviction.” i

(Emphasis supplied). !

As Judge Van Graa!‘eiland correctly notes, the :

imposition of probation under Counts 2 and 3 for terms

extending beyond the seven-year sentence imposed on Monge

aS a youth offender under Count 1 was not Strictly a

"sentence" of the defendant. However, it Clearly placed a

2 wee we ee

MPS Fe em, ae 8 ee ee een cee. .

_

no

c~,

OPT eres cone

S-1- toon 1073

en er

ss

"Combo ion™ on 5 ee PER ne 42 aie ty cet Sp bet Rene cot

the maximum sentence (seven Years) Linpored on tam was a4

youth offender under Count 1. The probation terms

chevetoce violated §5017(d).

I would vacate the probation terms impose: 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 bicbiniion, upon learning that he was

powerless to impose probation consecutively to the

discharge 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 v. Pierce, 395 U.S,

711 (1968).

FOOTNOTES

os

==

J/ Section 501 0(c) Provides;

"(c) If the court snall find ,

that the youth offender May not be able

tment and

~S Sars a

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fad

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ow

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2

by law for the offense or offenses of which

he stands convicted or until discharged

11 by the Commission as Provided in section :

5017(d) of this chapter, * j

~-

2 Section 5017(d) Provides;

"(d) A youth offender committed

> ~~ EO OS OG DEE Terre,

>

15 under section 5010(c) of this chapter fr i

i Shall be released conditionally under

16 Supervision not later than two years '

before the Cxptration of the term imposed ! ‘

17 by the court. He may be discharged |

unconditionally at the expiration of not

18 less than one year from the date of his .

conditional release. tte Shall be discharged

19 unconditional ly On or before the expiration

of the ma x imum sentence imposed, computed

20 uninterrupted ly from the date ef conviction.,* |

|

21 ‘

22 ! 3/ = Section 5023(a) Provides; i

23 "(a) Nothing in this chapter

shall Limit or affect the Power of any :

4 court to Suspend the imposition or i

execution of any sentence and Place a

25 youth offender on Probation or be_

construed in anv wise to amend, repeal,

6 or affect the Provisions of ch pter 231

of this title or the Act of June 25

27 1910 (en, 433, 36 Stat. 864), as amended.

(ch. Ll, title 24, Of the po. of CC. Code),

2a both relative to probation, * '

29

39

i

31 '

32 ~i-

!

tow ;

71 et. 1M ~ tery ‘

Court, U.S.

FILED

MAR 4 1981

| Niexander L. Stevas, Clerk

IN THE

¢ SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-6291

JOSEPH CALDER,

Petitioner,

-Vs-

UNITED STATES OF AMERICA,

Respondent.

RECEIVED

» MARY 1981

OFFICE OF THE CLERK

MOTION FOR LEAVE TO PROCEED IN FOPMA PAUPERIS

Pursuant to the provisions of Title 28 U.S.C. §1915,

and Rule 53 of the Rules of this Court, petitioner JOSEPH CALDER,

asks leave to file the attached petition for a writ of certiorari

to the United States Court of Appeals for the Second Circuit without

payment of costs and to proceed in forma pauperis.

The certifitate of counsel for the petitioner in support

of this motion is annexed hereto.

Counsel or Petitioner

JOSEPH CALDER

New York, New York

February 23, 1981

Court, 6S.

FILED

MAR 4 wel

| Kexander L Stesas, Cast

IN THE an

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-6291 |

JOSEPH CALDER,

Petitioner,

-Vs-

UNITED STATES OF AMERICA,

Respondent.

RECEIVED

MAR 9 1981

OFFICE OF THE CLERA a

~— SUPREME CouRT, 2 —

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Pursuant to the provisions of Title 28 U.S.C. §1915,

and Rule 53 of the Rules of this Court, petitioner JOSEPH CALDER,

asks leave to file the attached petition for a writ of certiorari

to the United States Court of Appeals for the Second Circuit without

payment of costs and to proceed in forma pauperis.

The certificate of counsel for the petitioner in support

of this: motion is annexed hereto.

——

Counsel or Petitioner

JOSEPH CALDER

New York, New York

February 23, 1981

SUPREME COURT OF THE UNITED STAT S jrexander L. Stevas, Clerk |

= epee

October Term, 1980

No. 80-6291

JOSEPH CALDER,

Petitioner,

-Vs-

UNITED STATES OF AMERICA

Respondent. RECEIVED

MAR 9 1981

OFFICE OF THE CLERK °

SUP

CERTIFICATE OF COUNSEL IN SUPPORT

OF MOTION TO PROCEED IN FORMA PAUPERIS

KENNETH J. KAPLAN, ESQ., being a member of the Bar of this

Court, and assigned by the United States Court of Appeals for the

Second Circuit, pursuant to the Criminal Justice Act, to represent

petitioner, hereby certifies as follows in support of petitioner's

motion for leave to proceed without being required to prepay costs or

fees:

1. The United States District Court for the Eastern Dis-

trict of New York assigned me to represent the petitioner at his

trial in that court, due to the financial inability of petitioner to

pay the costs of his defense.

2. The United States Court of Appeals for the Second Circuit,

assigned me, pursuant to the Criminal Justice Act, to represent

petitioner upon his appeal to that Court, due to petitioner's inability

to pay the costs of his appeal.

3. Petitioner is not presently gainfully employed and has

not been employed during the duration of my representation of him.

Petitioner has advised me that he is unable to pay the costs of this

petition, or to give security for the same, he further advised me

that he believes he is entitled to the redress he seeks by the petition.

He has requested me to file this petition on his behalf.

4. The nature of the petition for a writ of certiorari is

as follows:

Following a jury trial in the United States District Court

for the Eastern District of New York, petitioner was found guilty of

extortion in violation of 18 U.S.C. §195. On June 6, 198, appellant

was sentences to a six year term of imprisonment. He contends that

he was denied a fair trial in that there was insufficient evidence to

establish the jurisdictional requirement of an affect or interstate

commerce under the Hobbs Act.

Respectfully submitted

KENNET ° LA

Assigned Counsel for

Petitioner JOSEPH CALDER

New York, New York

February 23', 1981