# Petition for Writ of Certiorari — Gioffre v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1955%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 819

## Text

—

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1955%3A1. Public record. Not legal advice.