# Petition — Calder v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1848%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 912 ## Text 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 — ——o SS o @xy aweawwp pw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 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 @3 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. oon aw &® we he Pe ‘ ~ Ky oO i oe a a ee ee a ee oe ee oe ee ee ee ee ee oe DBemeew7we~s ea @ewenrsesee@es+3t aes @ ® ee ee eee ee 6 ~— (e.¢ OT eeneantnail nt ee yi eiratae, 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 ‘ \ 14 ' 15 . 16 ; 17 ! 18 19 20 21 22 PA] qa 25 j a \ 2 ' 28 z | P 30 PB 4 ‘ 3 31 ‘ | ’ 32 . ‘ i { 9t-48-19-6-10 \ ’ ome ee PS EOL eee Sree Sa PA ORES Ne eee, ~—— ® > we ow ° ¥ : > ye 2 a " = rn ° " ad n c) 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1848%3A1. Public record. Not legal advice.