Petition for Writ of Certiorari — Gioffre v. United States

—

Supreme Court, U.S,

85-1987 PILED

MAY 24 1986

JOSEPH F. SPANIOL, JR.

' ERK

No.

In The

Supreme Court of the United States

October Term, 1986

JOSEPH C. GIOFF

i @

vs.

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

ROBERT F. SIMONE

Attorney for Petitioner

1919 Walnut Street

Philadelphia, PA 19103

(215) 563-7005

i

QUESTIONS PRESENTED FOR REVIEW

Le Whether defendant who

has received nothing of value but

acted only as a messenger or conduit

may be found guilty of violating

the Hobbs Act.

2. Whether the defendant

police officer, who delivered money

to other policemen in different

geographical areas of the citys

and different divisions of the

police department from that in

which defendant was employed, acting

purely as a messenger on behalf

of friends, can be said to have

operated "under color of official

right."

ii

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Citations

Reference to the Opinions Below

Statement of Grounds on which

Jurisdiction is invoked

Pertinent Statutes, Rules and

Constitutional Provisions

Statement of the Case

Reasons for Allowance of Appeal

I. The Hobbs Act Violation

Requires Receipt of Value by

the Defendant at least in-

directly

II. The Prosecution's failure

to Prove Required Acts under

Official Color

III. Conclusion

Appendix A

Excerpt from Testimony of

September 17, 1985 --

denial of post-verdict

motions by Judge Giles

iii

10

10

12

15

A-1l

iii

Appendix B

Opinion and Order affirm-

ing Convictions in the

Third Circuit March :)

1986 A-6

Appendix C

Third Circuit Order Extend-

ing Stay of Mandate until

May 30, 1986 A-30

TABLE OF CITATIONS

Cases Cited:

United States v. Cerilli,

603 F.2d 415 (3rd Gite, 1979)... 1}

United States v. Green,

weeny Obs, 615 i.) ee 10

United States v, Margiotta,

688 F. 2d. 108 (2d Cir, 1982). 12

United States v. Mazzei,

521 F. 2d 639 (3rd Gar, 1974)... 12

United States v. O'Grady,

742 F. 2d 682 (2d Cir, 1984)... 14

United States v. Provenzono,

334, F. 2d 678 (3rd Cir, 1964). 1l

Unites States v. Trotta,

525 F. 2d 1096 fee Cir, 1975).. 12

iv

Statues Cited:

18 U.S.C.§ 1254. cc wee ev ccccccces 2

18 U.S.C.§ 19O5SL. cece eee eee cece Jes

1

REFERENCE TO THE OPINIONS BELOW

The defendant was found guilty

of one count charging a Hobbs Act

Violation by jury on June 14, 1985,

after which post-verdict motions

were filed and denied by opinion

from the bench delivered by United

States District Court Judge Giles

September 17, 1985, (Appendix A

attached). Thereafter appeal to

the Third Circuit resulted in the

conviction's being affirmed by

Opinion and Order dated March 31,

1986, (Appendix B attached). Third

Circuit Judge Mansmann issued Order

dated April 28, 1986, extending

the issuance of certified judgment

in lieu of formal mandate until

May 30, 1986 (Appendix C attached).

2

STATEMENT OF GROUNDS ON WHICH

JURISDICTION IS INVOKED

Petitioner, Joseph C. Gioffre

seeks Writ of Certiorart to

review the judgment rendered by

the United States Court of Appeals

for the Third Circuit on March

7 1986, (Appendis B attached).

The judgment affirmed Petitioner's

criminal conviction entered in

the United States District Court

for the Eastern District of

Pennsylvania following a jury

trial and denial of post-verdict

motions (appendix A).

The Supreme Court has juris-

diction to review the judgment

below by Writ of Certiorari pursuant

28 U.S.C. §1254 (1).

3

PERTINENT STATUTES, RULES AND

CONSTITUTIONAL PROVISIONS

This Petition arises from

a criminal prosecution for violation

of the Hobbs Act, 18 U.S.C. §1951.

4

THE STATEMENT OF THE CASE

Petitioner Joseph C. Gioffre

was a distinguished police officer

with a record of twenty years

service in Philadelphia and many

commendations prior to his indict-

ment in February 1985 on five counts

of alleged Hobbs Act Violations.

The defendant's case came to trial

in June 1985 and he was acquitted

of all charges with the exception

of count four of the indictment.

Examination of the allegations

in count four and the proof pre-

sented by the government at trial

demonstrates that the defendant

did not commit a violation of the

Hobbs Act and that an important

legal and public interest would

be served by the Court's review-

ing the conviction to clarify theli-

nh ”””~“‘“‘“Ci<=“‘=“‘‘RNTNSCN

5

mits on such federal extortion pro-

secutions.

The Hobbs Act appears at 18

U.S.G. §1951 and, consequently,

prosecution for its violation

falls within the jurisdiction of

the United States District Court.

Of course, that Act outlaws inter-

ference within interstate commerce

by means of extortion which is

defined, for purposes applicable

to this case, as taking property

for benefit of the defendant under

color of official right.

Review of the evidence at

trial shows that police officer

Gioffre neither took property for

himself nor acted under color of

official right.

In fact at trial the testimony

related to count four in the indict-

6

ment came from numbers banker

Lester Barry who identified himself

as a life long friend of the de-

fendant, childhood playmate and

acquaintance for over twenty-five

years. Barry admitted to approach-

ing the defendant on four occasions

in the early 1980's attempting

to induce Gioffre to assist Barry's

numbers business by serving as

a messenger to deliver pay-offs

for police officers in parts of

the City and divisions of the police

department remote from that in

which the defendant was employed.

After several occasions when

the defendant refused Barry's

blandishments, Gioffre finally

agreed to deliver payoff money.

Significantly the defendant received

nothing for himself. He never

a

7

delivered money or did anything

else for Barry within the area

of the division in which defendant

was employed by the police depart-

ment. He never took any actionor

refrained from taking any actionre-

lated to his own police duties

as a result of requests by Barry.

He served only as a messenger and

his only motivation was the repeated

appeals to friendship which the

so-called "victim" made to him

in the early 1980's before he

finally succumbed.

The petitioner contended at

trial and post-verdict motions

that he had not received value

nor acted under official color

to satisfy the extortion requirement

of the Hobbs Act. Basically, Judge

Giles in his bench opinion denying

8

the motions (Appendix A) concluded

that the petitioner knew that the

money which he delivered would

affect other policemen and con-

sequently was culpable because

of his official responsibilities

as a police officer. The defense

respectfully contends that such

an evaluation really avoids’ the

question of whether this particular

official acted in relation to his

duties as an officer or whether

his personal misconduct, unrelated

to the job, can be the basis of

a Hobbs Act prosecution merely

because he served in an official

capacity.

The Circuit Court of Appeals

(Appendix B ) affirmed the con-

viction. Now the petitioner asks

this court to review and vacate

his conviction. He submits that

the conviction and later affirmance

mistakenly applies the Hobbs Act

to one not guilty of using his

official title or position and

not guilty of accepting illicit

gain for himself directly or in-

directly.

10

REASONS FOR ALLOWANCE OF THE WRIT

as THE HOBBS ACT VIOLATION RE-

QUIRES RECEIPT OF VALUE BY THE

DEFENDANT AT LEAST INDIRECTLY.

The prosecution offered no

testimony at trial to show that

defendant Gioffre kept any of the

money he was delivering for him-

self or that any of the proceeds

were earmarked for him. On the

contrary, the trial court concluded

when refusing his post-verdict

motions that his motivation was

solely friendship.

The United States Supreme

Court in United States v. Green,

350 U.S. 415 (1956) concluded that

direct receipt of money or value

was not necessary to constitute

extortion. The Third Circuit Ap-

peals Court reviewed the question

11

in even moredetail in the case of

United States v, Provenzano, 334

F.2d 678 (1964) when the defendant

argued that none of the monies

in issue ever went directly into

his pocket. In that case the

opinion by Chief Judge Biggs stated

at page 685 that direct or indirect

receipt of the money was not

necessary as long as ‘cineets

were made at the extortioner's

direction to a person named by

him."

Similarly in the case relied

upon by the Third Circuit to affirm

Gioffre's conviction, United

States _v. Cerilli, 603 F:2d 415

(38. - €ir., 1979), the defendant,

though not directly receiving the

money, arranged for his designee

to take it. In the instant case,

12

however, the prosecution really

extends the scope of the extortion

definition to a messenger. The

extension, however motivated by

honest zeal to remove all police

corruption violates the terms of

the Act.

II. PROSECUTION'S FAILURE TO PROVE

REQUIRED ACT UNDER OFFICIAL

COLOR.

The conviction of Gioffre

violates the logic of many previous

cases holding that extortion only

occurs when the defendant makes

wrongful use of his office to

receive money. See for example,

United States vv. Margiotta, 688

F.2d 108 (2d. Cir., 1982), United

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

(3d. Cifes 1974), United States

v. Trotta, 525 F.2d 1096 (2d. Cir.,

1975), cert. denied, 425 U.S. 971

(1976).

In this case, excerpts’ from

cross-examination of the payor

of monies which Gioffre delivered

clarify that the defendant never

used his office to protect’ the

numbers banker or even to facilitate

corrupt agreement between the banker

and police recipients of the

payments:

Q. You were aware he [Gioffre]

had no control personally

as a police officer over your

numbers operation, isn't that

correct?

Ta 7° ae So ee

Q. Now, you have testified

that you went to Mr. Gioffre,

sought him out, correct?

a ae. .

Q. And you tried to corrupt

him, didn't you?

A. Well, if asking him to

do me a favor is trying to

Corrupt him, I guess I was

trying to corrupt him, yeah....

14

Q. Well, I believe you

testified it took you four

times to finally convince

him to deliver the envelope

to you?

A. I am saying at least on two

occasions.

Q. Now, he could't help you

himself with regard to pro-

tection, isn't that correct?

A. No, he couldn't.

Q. And you didn't give him

the money so that he himself

would use his badge to protect

you, isn't that correct?

'? That is correct sir.

The Second Circuit Court of

Appeals addressed just such a

situation in United States -

O'Grady, 742 F.2d 682 (1984) where

the

page

en banc opinion declared at

687:

the conduct proscribed by

the Hobbs Act is the wrong-

ful use of public office,

not merely the acceptance

of benefits. Although receipt

of benefits by a public

official is a necessary element

of the crime, there must also

be proof that the public

15

official did something, under

color of his’ public office,

to cause the giving of

benefits. [emphasis added]

In this case, although other

police officers may very well have

acted officially to induce the

"victim" to make payments, no pro-

secution evidence proves that

Gioffre did.

III. CONCLUSION

Although policemen Gioffre's

agreement to deliver money for

the numbers banker was_ probably

the most tragic mistake of his

personal and professional career,

he neither accepted benefit ffor

himself nor acted in his capacity

as an official and so is not guilty

of the Hobbs Act violation and

this Court's protection for him

is properly sought in the interest

16

of justice.

Respectfully submitted,

BY:

ROBERT F. SIMONE, ESQUIRE

COUNSEL FOR PETITIONER,

JOSEPH C. GIOFFRE

1919 Walnut Street

Philadelphia, PA 19103

(215) 563-7005

A-1

Appendix A

EXCERPT FROM THE TESTIMONY OF

SEPTEMBER 17, 1985 -- DENIAL OF

POST-TRIAL MOTIONS BY JUDGE GILES

THE COURT: I have considered

the briefs, the record and _ the

defendant's reply to the govern-

ment's response to the motion for

a new trial and/or judgment of

acquittal. The motion of defendant

is denied.

Mr. Gioffre acted out of

friendship, knowing that Mr. Barry

relied upon his badge to pass money

through to others in the police

department.

In the light most’ favorable

to the government, the evidence

indicated that Mr. Gioffre knew

and appreciated what he was doing

with the money, what the money

was for, although he may not have

actually seen how much was in any

A-2

delivery. He knew the business

in which Mr. Barry was’ engaged,

indeed, Mr. Barry testified that

he had given money directly to

Mr. Gioffre in his location, for

protection of his numbers business.

Mr. Gioffre permitted his

badge to be used and for an illegal

purpose, therefore, he acted under

color of right in accepting the

money from Mr. Barry.

At another level, the evidence

is that he was induced by friend-

ship, induced being a word to convey

an indirect causation, to do what

he did, however reluctantly.

With respect to the interstate

commerce aspect to the argument

of the defendant, that is dispelled

by virtue of the stipulations

pertaining to Lester Barry's

A-3

business, equipment having been

purchased through [nterstate

Commerce.

With respect to the testimony

that Mr. Barry may have at’ some

other trial also referred to Mr.

Gioffre by a code name of Mr. Gray,

I find that itis notthe type of

evidence that would have used or

could have been used to impeach

the testimony of Mr. Barry because

it does not exclude Mr. Barry's

testimony in other cases that he

also referred to Mr. Gioffre as

Joe DiMaggio.

With respect to the testimony

proffered or the position taken

on the rule 35 motion, by an officer

Kelly, the he received money from

Mr. Barry to pass on to certain

police officers, in the police

department, for the protection

A-4

of Mr. Barry's numbers and poker

came operations, I find that is

not the kind of evidence that

would merit a new trial in the

interest of justice. The evidence

in this case, was that Mr. Barry

paid a number of people at different

times. Mr. Kelly may have been

one of the people paid at one time,

not to the exclusion of a time

that money was paid to Mr. Gioffre

under the code name of Joe DiMaggio

or under the code name of Mr. Gray.

So, there is no testimony

proffered here that Mr. Kelly was

known by the code name of Joe

DiMaggio, rather the evidence

is uncontradicted, except through

Mr. Gioffre, that Mr. Gioffre was

known by the code name Joe DiMaggio.

The jury deliberated on this matter,

A-5

considered Mr. Gioffre's testimony,

in conjunction with that proffered

by Mr. Barry and concluded beyond

a reasonable doubt that Mr. Barry

was to be credited.

For these reasons, the de-

fendant's motion is denied.

A sentensing date has_ been

set.

We'll move that to 9 o'clock.

A-6

Appendix B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 85-1584

UNITED STATES OF AMERICA

vs.

JOSEPH C. GIOFFRE,

Appellant

Appeal from the United States

District Court for the Eastern

District of Pennsylvania

(D.C. CR. NO. 85-00052-01)

District Judge: Hon. James T. Giles

Submitted Pursuant to Third Circuit

Rule 12(6) March 19, 1986

Before: HUNTER and MANSMANN,

Circuit Judges and McCUNE,

District Judge*

(Filed March 311986)

MEMORANDUM OPINION

MANSMANN, Circuit Judge.

In this criminal appeal from

a judgment of conviction and sentence,

A-7

defendant Gioffre alleges’ several

trial errors, questions the _ suf-

ficiency of the evidence with regard

to his conviction of extortion

under the Hobbs Act, and challenges

the constitutionality of the Hobbs

Act. Finding no merit in any of

the issues raised, we will affirm.

The circumstances of this

case evolve from the allegedly

criminal actions of Gioffre while

he served in his official capacity

as a Philadelphia police officer.

* The Honorable Barron P. McCune,

United States District Court

for the Western District of

Pennsylvania, sitting by designa-

tion.

A-8

Defendant was indicted in

four separate counts: specifically,

defendant was charged with Con-

spiracy to Violate the Hobbs Act

(18 U.S.C. §1951) (Count I) and

was also charged with three sub-

stantive counts of Hobbs Act Extor-

tion (18 Ae §1951) (Counts

tke 29 O06. Foe

On June 21, 1985, the district

court granted defendant's Motion

for Judgment of Acquittal on Count

Il. Following a jury trial, de-

fendant was acquitted on Counts

I and V of the indictment and was

found guilty on Count IV of the

indictment. Defendant's post-trial

motions were denied, and he was

sentenced to two years of imprison-

ment on Count IV and to pay a

fine of five thousand dollars.

A-9

Il.

Gioffre first asserts that

the evidence on the Hobbs Act con-

viction is insufficient as a matter

of law. To the extent that Gioffre

challenges the legal determinations

of the district court our _ scope

of review is. plenary. Universal

Minerals, Inc. v. C.A. Hughes &

Co., 669 F. 2d 98, 101-02 (3d Cir.

1981). In the alternative, Gioffre

argues that there was insufficient

evidence submitted at trial on

the Hobbs Act extortion charge

to compel a finding of guilt beyond

a reasonable doubt. When deciding

such a sufficiency claim, we must

determine whether there is substan-

tial evidence, viewed in the light

most favorable to the government,

to uphold the jury's verdict.

A-10

United States vv. Adams, tae ee

2d 1099, 1113 t38@ “Seater. cert.

denied, 106 S.Ct. 336 (1986).

Gioffre's sufficiency claim is

focused only upon the extortion

elements required for a Hobbs Act

conviction: specifically Gioffre

contends that the government failed

to prove 1) that Gioffre had obtain-

ed any property from the victim

and 2) that Gioffre was acting

under color of official right with

respect to the relevant acts. To

this end, it is Gioffre's contention

that there was no_ showing that

he received any benefits from the

payments Lester Barry made to him

other than Mr. Barry's friendship,

which he further contends does

not constitute property within

the meaning of the act. Also

A-11

Gioffre maintains that he did not

exercise the powers of his public

office, and there was no showing

made that Gioffre was aware that

Mr. Barry was making payments to

him because of his official position

as a Philadelphia police officer.

There are two essential

elements of a Hobbs Act crime:

namely, interference with commerce

and extortion. Stirone v. United

States, 361 U.S. 212, 218 (1960).

The term "extortion" is defined

by the act as follows:

(2) The term “extortion”

means the obtaining of

property from another,

with his consent, in-

duced by wrongful use

of actual or threatened

force, violence, or

fear, or under color of

official right.

The extortion element was proven in

this case.

A-12

According to case precedent,

in a Hobbs Act’ prosecution for

extortion under color of official

right, "'[t]he Government is merely

required to prove that a= public

official obtained money to- which

he was not entitled and which he

obtained only because of his of-

ficial position'™” United States

v. Jannotti,673 F.2d 578, 595 (3d

Cit.). cart. dented, 46457 ©.3. 1306

(1982), quoting United States _ v.

Hedman, 630' F.2d 1184, 1195 (7th

Cir.), cert. denied, 450 U.S. 965

(1981). Furthermore, the Hobbs

Act covers the acceptance of bribes

by public officials when payment

was not obtained by force, threats,

or use of fear, and there need

not be evidence or inducement or

prior request for such payments.

A-13

Jannotti, supra, at 595. st: 4a

also well established that a person

may violate the Hobbs Act without

himself receiving the benefit of

his extortion. United States v.

Cerilli, 603 F.2d 415, 420 (3d

Cir.), cert. denied, 444 U.S. 1043

(1979).

Finally, viewing the evidence,

as we must in light most favorable

to the government as verdict winner,

it is clear that Gioffre's convic-

tion for extortion under the Hobbs

Act must stand. Lester Barry,

an illegal numbers banker, testified

that he paid the police money for

protection from arrest in order

1. According to Barry's testimony,

a numbers banker is a type of ad-

ministrator responsible for a number

of people who turn in numbers that

they wrote. The banker pays the

commission to the writers on the

amount they wrote, pay the winners

and does anything else _ required

in connection with the business.

A-14

that he would be able to continue

to run his illegal numbers oper-

ations and poker machines, In

particular, he testified that he

paid money once a month to police

officer Gioffre to pass on to

others. Barry identified Gioffre

from the witness stand, revealed

that Gioffre's code name for the

pickup of protection money was

"Joe DiMaggio," and also indicated

that he specifically told Gioffre

that the purpose for the payment

was for protection from arrest. The

records which’ were seized show

numerous payments from Barry to

"Joe DiMaggio" from 1979 to 1981.

Moreover, these records also contain

Gioffre's unlisted home phone number

next to the code name "Joe DiMaggio."

The evidence established that

A-15

Gioffre, a police officer, obtained

money to which he was not entitled

only because of his official position.

That he might not have benefited

from the money he collected from

Barry is of no consequence. Given

this, Gioffre's sufficiency claim

fails.

III.

Gioffre argues that the Hobbs

Act, as applied in his case, is

unconstitutionally vague. Gioffre

maintains that the statute and

case law do not alert a reasonably

intelligent person to the fact

that when a police officer receives

money from an extorted victim and

passes that money on to other police

officers, it is the type of conduct

which is prohibited under the Hobbs

aet «

—————

A-16

It is well-established princi-

ple of due process that a statute

is void for vagueness if its pro-

hibitions are not clearly defined.

Grayned v. City of Rockford, 408

U.S. 104, 108 (1972). Vagueness

is not, however, a problem in

this case. The term "extortion"

is clearly defined in the act

as “the obtaining of property from

another . . . under color of of-

ficial right." 18 U.S.C. 1951

¢€ ame oP It has been noted that

the phrase “under color of official

right" is consonant with the common

law definition of extortion, which

could be committed only by a public

official taking a fee under color

by his office, with no proof of

threat, force or duress required."

United States Vv. Williams, 621

EE

A-17

Fea@ badass 26 (3th Cir.). cart.

denied, 40 U.S. 919 (1981). See

also United States v. Mazzei,

390 F.Supp. 1098 (W.D.Pa.), modifiel

on other grounds, 521 F.2d 639

(3d Cir.) (en banc), cert. denied,

423 U.S. 1014 (1975) (phrase "under

color of official right" is suf-

ficient to give a person of ordinary

intelligence fair notice of what

is prescribed by the statute.)

The coercive element is’ supplied

by the existence of the public

office itself. United States v.

Mazzei, 521 F.2d 639, 644-45 (3d

Cir.) (en banc), cert. denied,

423 U.S. 1014 (1975). Given the

definitional explanation within

the Act itself of extortion and

the long-standing meaning of the

phrase "under color of official

right," Gioffre's argument that

A-18

he, a public official, had no notice

of a_ possible Hobbs Act prose-

cution for his conduct of accepting

monthly cash payments from an il-

legal numbers banker for protection

from arrest, is patently without

merit.

IV.

Defendant argues that’ there

was a variance between the allega-

tions contained in the indictment

and the proof presented at trial

which resulted in his being preju-

diced. To this”7 end, defendant

points out that the indictment

charged that he obtained money

from Lester Barry under color of

official right while the proof

offered at trial was that Gioffre

acted merely as a courier for frry

out of his friendship for Barry.

A-19

Variance between allegations

of the indictment and proof pre-

sented at trial may be fatal if

it destroys the basic right to

be tried only on the charges pre-

sented in the indictment. United

States v. Schoenhut, 576 F.2d 1010,

1021 (3rd Cir.) cert. denied,

439 U.S. 964 (1978). We have held

that a judgment of acquittal is

warranted where the variance is

a "modification in the elements

of the crime charged." Id. at

1021, quoting United States vv,

Somers, 496 F.2d 723, 744 (3d

Cir.), cert. denied, 419 U.S. 832

(1974). If, however, the variance

A-20

does not alter the elements of

the offense charged, we are to

focus upon whether or not the de-

fendant has experienced prejudice;

that is, whether defendant's sub-

stantial rights have been affected

by the variance. Schoenhut, supra,

at 1021. Here there is not an

alteration of the elements of the

offense charged, and defendant

does not raise such an allegation.

Rather, defendant claims that he

was prejudiced in his defense by

the variance. In this later regard,

we have held that a variance works

no prejudice upon a defendant's

substantial rights 1) if the indict-

ment sufficiently informs the de-

fendant' of the charges against

him so that he may prepare his

defense and not be misled or sur-

A-21

prised at trial and 2) if the vari-

ance is not the type which would

place the defendant in danger of

being prosecuted a second time

for the same offense. Id. at 1021-

22.

We need not, however, apply

this test to determine if defendant

was prejudiced since there is no

variance to be tested. The indict-

ment in this case charged extortion

under color of official right and

that is precisely what was proven

at trial. That Gioffre may have

acted out of friendship to Barry

and that Gioffre received no direct

benefit from the extortion does

not flaw the case or create a

variance. The government in keeping

with the allegations in the indict-

ment proved that Gioffre accepted

A-22

money to which he was not entitled

from Lester Barry under color of

official right. Specifically, the

government offered evidence showing

1) that Lester Barry had to pay

the police to keep his gambling

operations running; 2) that Gioffre

was a police officer; and 3) that

Barry paid Gioffre money to pass

on to the other police officers

who were involved in the illegal

activities. Gioffre thus received

the payments under color of official

right. Moreover, as has been previ-

ously established, a person may

violate the Hobbs Act without him-

self receiving the benefit of his

extortion. Cerilli, supra, at

420. Accordingly, defendant's

argument fails.

A-23

ve

Gioffre argues that the

district court abused its discertion

in denying his motion for new trial.

Because a transcript of another

trial in which Lester Barry testi-

fied was only available after

Gioffre's trial and because the

transcript may have been used to

impeach Barry, Gioffre maintains

that his motion should have been

granted. In essence, Gioffre argues

that the availability of new evi-

dence in his case merited a new

trial. Specifically, the new evi-

dence was the use of the code name

"Mr. Gray" to refer to Gioffre.

Generally, there are five

requirements which must be met

before the district court will

order a new trial on the basis

A-24

of newly discovered evidence: i)

facts must be alleged from which

the court may infer diligence on

he part of the movant; 2) the evi-

dence relied on must not be merely

cumulative or impeaching; 3) it

must be material to the issues

involved; and 4) it must be of

such a nature that on a new trial

the newly discovered evidence would

probably produce an acquittal.

United States v. Herman, 614 F.2d

369, 371 (3d Cir. 1980). Gioffre

has not. met these requirements

In Fact, he indicates that the

new evidence would be important

only for impeachment purposes,

and this alone dces not warrant

a new trial.

Moreover, the district court

in denying the motion pointed out

A-25

the following cogent factor with

which we agree:

With respect to the testi-

mony that Mr. Barry may

have at some other trial

also referred to Mr.

Goiffre by a code name

of Mr. Gray, I find that

is not the type of evi-

dence that would have

used or could have been

used to impeach the testi-

mony of Mr. Barry because

it does not exclude Mr.

Barry's testimony in

other cases that he also

referred to Mr. Gioffre

as Joe DiMaggio.

The district court cannot be found

to have abused its discretion in

denying defendant's motion for

new trial.

Tike

Finally, as we understand

Gioffre's last argument, he faults

the district court for its jury

instruction as it related to Count

IV Hobbs Act Extortion involving

Lester Barry, the count upon which

A-26

defendant was convicted. In partic-

ular, defendant argues 1) that

the instruction should have indi-

cated how defendant's official

office factored into the extortion

and 2) that the instruction should

have made it clear that defendant

must have obtained the property

of another.

Whenever ar appellate court

reviews the jury instructions of

the trial court, it must review

the ikacrectians as aewhole in

order to perserve their context.

Cupp _v. Naughten, 414 U.S. 141,

146-47 (1973); United States v.

Palermi, 630 F.2d 192, 210 (3d

Cift.}, cert. denied, 650 8.5. 967

(1981). We review defendant's

allegations in light of this re-

quirement.

A-27

In pertinent part the district

court offered the following charge

on extortion under the Hobbs Act:

Extortion is defined

in title eighteen, section

1951, is committed when a

person obtains money from

any other, with his consent,

under color of official right.

Extortion, under color

of official right, is the

wrongful taking by a public

official of money not due

him, or his office, whether

or not the taking was ac-

complished by force, threats,

of violence.

In other’ words, force,

threats or violence does not

have to be used. Extortion

can be under color of official

right, that is a person uses

his or her public position,

as an official, to cause the

taking or payment of money.

Here the Government’ has

charged Mr. Gioffre with con-

spiring to obtain money from

individuals, clubs, and

businesses operating within

the city of philadelphia

involved in various

activities, including the

operations of private clubs,

sale of liquor, serving of

liquor after the hours allowed

A-28

by law and prostitution.

In proving the existence

of extortion, under color

have official right, ze. is

not necessary to prove that any

coercion, duress or fear in-

duced those businesses or

persons to part with their

money or property. It is

sufficient that the public

official knowingly used _ his

office to acquire money not

due him for performance of

his official duties.

* &£ & &

It is not necessary for

the prosecution to prove that

the defendant himself directly

or indirectly received the

fruits of extortion, or any

benefit there from.

The Government must prove

beyond a reasonable doubt

that the defendant obtained

property from another, with

that person's consent, induced

under color of official right.

We find that this charge in

its totality clearly sets’ forth

all of the elements of extortion

under the Hobbs Act. In addition,

we find that, contrary to de-

A-29

fendant's allegation, the charge

did instruct the jury that in order

to convict defendant, they had

to find that he wrongfully used

his office to obtain money from

Lester Barry.

TO THE CLERK:

Please file the foregoing

Memorandum Opinion.

/s/ Carl Los Mansmann

Circuit Judge

A-30

Appendix C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-1584

United States of America

VS.

Gioffre, Joseph C., Appellant

Pursuant to Rule 41(b) of

the Federal Ruies’7 of Appellate

Procedure, it it O R D E R €E OD

that issuance of the certified

judgment in liew of formal mandate

in the above cause be, and it is

hereby stayed until May 30, 1986.

/s/ Carol Eos Mansmann

Circuit Judge

Dated: April 28, 1986

ae nc RR RES RE sm mT, ORL ess pies gb tT pag Tr tam re an aaa