People v. Dioguardi

8 A.D.2d 426, 188 N.Y.S.2d 84, 44 L.R.R.M. (BNA) 2553, 1959 N.Y. App. Div. LEXIS 7826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1959
• Status: Published

Opinions

M. M. Frank, J.

The defendants appeal from judgments convicting them of the crimes of conspiracy and extortion.

The indictment contains two counts: the first charges conspiracy to commit the crime of extortion (Penal Law, § 580); the second charges extortion (Penal Law, §§ 850, 851, subd. 1). The latter count alleges that between January 23 and July 17, 1956, the defendants wrongfully, unlawfully and corruptly obtained the sum of $4,700, the property of Tower-Crossman Corporation and Atlas Stationery Corporation (hereinafter referred to as Tower and Atlas), from Anthony J. Kerin, Sr., Anthony J. Kerin, Jr. and Jack G. Schuman, officers thereof, ‘ ‘ with their consent by the wrongful use of fear, induced by threats of the defendants to do an unlawful injury to the property of said corporations * *

The operative facts are largely undisputed. The two corporations functioned generally as one unit from the same offices, and were unquestionably dominated and controlled by Kerin, Sr. Prior to November, 1955, the employees were unorganized and unaffiliated with any labor union. During that month, a Mr. Freeman, representing the Retail Clerks’ Local No. 585, CIO, communicated with the complainants for the purpose of organizing the employees, without definite result. Shortly thereafter, two men, Beshlian and De Lange, on behalf of Local 210 of the AFL Teamsters’ Union, informed the complainants that their local intended to unionize the employees. Mr. Kerin, Sr. became alarmed at these activities, not only because he had been advised that the organizational efforts might lead to picketing and possibly to a strike, but because he was unimpressed with the labor representatives who had made these approaches. He consulted his lawyers, but they could give him no ready assurances of relief from labor trouble. However, they arranged for him to meet an officer of a concern in the same line of business and through that person he was introduced to one Lafayette, an official of Local 1601, Retail Clerks’ Union. Kerin urged Lafayette to arrange for the employees of Atlas and Tower to join that local. At one point in the conferences, he offered Lafayette a present or a gratuity, which was refused. However, Kerin requested and received a predated letter from Lafayette, to enable him to assert that he was negotiating with a union, in the event that officials of other labor unions communicated with him. Kerin received assurances from Lafayette that an organizer would be sent to the offices of Atlas and Tower with membership blanks to enlist the employees into Local 1601.

On January 16, 1956, without prior notice, pickets appeared at one of the entrances of the corporate offices carrying signs that read: “ This employer, Tower & Grossman Corporation, is unfair to members of International Brotherhood of Teamsters, Local 138, affiliated with the A. F. of L., 23-03 45th Road, Long Island City, New York, Telephone Ex 2-2300.” Local 138 was thus the fourth labor group that sought to unionize Kerin’s business, although that local had made no initial contact before that date. As a result of the picketing by Local 138, some truck drivers refused to cross the picket line.

Now thoroughly alarmed, Mr. Kerin was advised by Mr. Coogan, one of his lawyers, that no immediate stay of the picketing could be obtained from the courts or the Labor Relations Board. It was suggested that Mr. White, a labor law specialist, might be of assistance.

Mr. White’s services were engaged and, with the approval of Kerin and Coogan, he consulted several labor leaders, including the defendant McNamara. At a meeting with him, Coogan and White, without disclosing the names of their clients, outlined the difficulties, and sought McNamara’s help by requesting that he arrange for the employees to join Local 295 of the Teamsters’ Union, of which he was an officer. A discussion took place as to whether the other labor unions could be induced to consent to an immediate election, but when they were identic tied to McNamara, he expressed doubts that those locals would withdraw or consent to an immediate poll. In a private conversation between them, McNamara told Coogan that he thought he could arrange to have the employees inducted into his local and the pickets withdrawn, but that it would cost between five and ten thousand dollars.

Coogan reported his conversation with McNamara to the senior partner of his law firm, and it was decided that the firm would no longer participate in any negotiations with McNamara. However, they did advise Kerin of the talles and suggested that, if he desired, he might personally meet with McNamara. It was Coogan’s opinion that if Kerin talked with McNamara, “ a plan could be worked out where the pickets would be removed and we would have no labor trouble ”.

An appointment was arranged, and on Friday, January 20, 1956, Mr. Kerin, Sr., his son and Mr. Schuman took lunch with McNamara and one Holt at a private club. Mr. Kerin detailed the various benefits that he had provided for his employees, voiced his concern about the problem confronting him and sought McNamara’s co-operation and assistance. McNamara indicated that he thought an acceptable program could be arranged. Kerin, Sr., and McNamara then left the others and went to another room, where they privately discussed the terms of a labor contract. It was there that McNamara informed Kerin that it would be necessary for the corporations to engage Equitable Research Associates as their labor consultant, at a monthly retainer of $100 for each company. In addition, an immediate payment to Equitable of $3,500 would be required, to reimburse the various locals for the expenses incurred in their efforts to organize Tower and Atlas. Mr. Kerin agreed to the terms suggested. When McNamara and Kerin rejoined the others, the latter outlined the plan to his son and Schuman and informed them that he had accepted it. McNamara was asked whether the arrangement would accomplish the immediate withdrawal of the pickets and he responded that it would. On Jannary 23, 1956, the complainants ascertained and observed that the pickets were gone and Kerin instructed Schuman to issue checks to Equitable. That same day McNamara appeared at the corporate offices and picked up the checks, one for $2,000 from Tower and the other for $1,500 from Atlas, simultaneously presenting- for signature a letter contract of retainer from Equitable Research Associates already signed by its president, the defendant John Dioguardi. The Equitable contract was not executed by the complainants at that time, but was forwarded to Mr. Coogan, who redrafted it. It was then signed on behalf of Atlas and Tower, and delivered to McNamara who obtained Dioguardi’s signature thereon and returned it to the complainants. At Kerin’s request no union contract was consummated with McNamara at that time, because Kerin was about to take a trip abroad. Later, after some negotiation an agreement was signed on June 12,1956.

No complaint about any part of the entire transaction was ever made by Kerin or any other officer of Atlas or Tower. The payments of $200 monthly to Equitable were made regularly. The arrangement came to the attention of the District Attorney when Equitable’s books were seized and the officers of Atlas and Tower were interrogated during the course of an investigation into Dioguardi’s affairs. Although the payments were discontinued at the suggestion of the Assistant District Attorney in charge of the investigation, nevertheless the sum of $200 each month was segregated by the corporations for eventual payment to Equitable.

During this period, none of the complainants met the defendant Dioguardi nor were they aware that he was the same person who had been widely publicized as “ Johnny Dio ”. It was not until some months later, when they learned from newspaper items that Dioguardi was “ Johnny Dio ”, that they suggested it might be advisable to meet with him. By arrangement, Mr. Schuman met Dioguardi at the offices of Equitable Research Associates and a brief conversation ensued. Schuman testified, “ I said that we were pleased with the arrangement that had been made and the way it had worked out; that the picket line was no longer there; we no longer had organizers at our door; and that we had had no further problems. And Mr. Dioguardi said, in substance, that that is the way it should be.”

While, in his opening statement, the prosecutor asserted that McNamara conveyed an unlawful threat to injure the business of Tower and Atlas unless the money was paid, at the close of the case, the prosecution theory shifted to one in which the charge of extortion was predicated upon the contention that the defendants seized upon the pre-existing fear of the corporate officers in order to obtain money or property belonging to the corporation.

On the state of the evidence, the prosecutor properly conceded in his summation that there was no proof that either defendant had anything to do with the efforts made by any of the four unions, which caused Kerin to be gravely concerned about the future of his business and led him to seek out McNamara. Moreover, he cautioned the jury that “ there is no proof, there is no circumstance from which you can draw the inference that McNamara or Dioguardi placed the picket line there.”

The nub of the question, therefore, is whether the crime of extortion can be committed by one who does not himself induce the fear that actuates the payment of money, but who, because of a pre-existing fear, independently instilled by others, not accomplices or co-conspirators, receives money for the purpose of removing or allaying that fear.

Time and again during the trial, Kerin made it clear, as he stated he had before the Grand Jury, that McNamara instilled no fear in him. The fear of damage to his enterprises by unwelcome labor activities antedated McNamara’s entry on the scene, and Kerin looked to him to be relieved of his troubles.

There was not the slightest suggestion at the trial of any threat made by McNamara, that if the arrangement he proposed was not consummated, he would cause a continuation of the picketing, or that either defendant would interfere with the business. While it is true that fear may be instilled and threats made in soft language or subtly couched phrases, that was not the situation here. The relationship between Kerin and McNamara was cordial and friendly. Kerin had sought out McNamara and after they agreed upon terms, Kerin showed his appreciation by presenting McNamara with gifts that he brought from Europe.

While there was no proof as to the time when the defendant Dioguardi became a participant in McNamara’s activities, it is indisputable from the record that it was after his codefendant’s first meeting with Coogan and White.

It was urged at the trial that if criminally responsible at all for any of the acts with which they were charged, the defendants were guilty of subdivision 2 of section 380 of the Penal Law (solicitation and acceptance of a bribe by a labor representative). Upon the proof in the record, that is undoubtedly correct, but we are not concerned with it. Since the defendants were not indicted or tried for that crime, we are not required to pass on that issue. Parenthetically, it may be noted that the Legislature, at its last session, amended the section (Penal Law, § 380, as amd. by L. 1959, ch. 609) to convert the misdemeanor to a felony, probably for the purpose of eliminating the difficulties of proof to sustain a charge of extortion. However, if the defendants were guilty of bribery, pursuant to the statute, they could not be guilty of extortion, for the two crimes are mutually exclusive (People v. Feld, 262 App. Div. 909).

Extortion is not a new crime. Especially as it deals with property obtained under color of official right, its genesis in the common law occurred several centuries ago, and Blackstone specifically mentioned it in his Commentaries. It developed as an extension of robbery (People v. Griffin, 2 Barb. 427; People v. Barondess, 61 Hun 571, 575). Extortion, as alleged here, was added to the old Penal Code at least as early as 1881, Its commission depends upon several essential factors. There must be the obtaining of property from another, with his consent, and the delivery of the property must be induced by force or fear. The fear so induced must result from threats made to accomplish that purpose. Thus, while we deal with an indictable offense of long standing and though it has been enforced in innumerable cases, out attention has not been directed to a single reported ease in which a conviction was sustained where the threat was made and the fear instilled, as here, by persons not proven to be in particeps criminis with the recipient of the property. Of course, that is not to say that extortion is not committed when a new fear is imposed upon an old or pre-existing one.

The prosecution contended and the court charged that the crime was complete if the defendants “ seized upon the opportunity created by the existence of ” an independent antedating misfortune to demand personal tribute. In reliance upon this theory our attention is directed to several cases in other jurisdictions (United States v. Varlack, 225 F. 2d 665, 668; People v. Hopkins, 105 Cal. App. 2d 708; Commonwealth v. Neubauer, 142 Pa. Superior Ct. 528; Callanan v. United States, 223 F. 2d 171, cert, denied 350 U. S. 862). None of the cited cases presents a situation in which the defendant was a stranger to the inducing fear.

It should be noted that the indictment specifically charges that money was obtained from the complainants 1 ‘ by the wrongful use of fear, induced by threats of the defendants to do an unlawful injury to the property of the said corporations ’ ’. Therefore, to sustain the conviction, the proof should have established that fear was induced by threats made by the defendants, as alleged in the indictment. However, Mr. Kerin, Sr., the dominant individual in the corporations involved, testified repeatedly throughout the trial that his relationship with McNamara was cordial and friendly; that McNamara was always a gentleman; that he liked the way he did business; and that he had no fault to find with the agreement he had made with him. Moreover, regarding the contract with Equitable signed by the defendant Dioguardi, Kerin unequivocally stated that he believed he had entered into a perfectly legal transaction, and 61 that our attorney had prepared this arrangement for us; that our attorney had the opportunity of telling me, 1 Mr. Kerin, don’t go through with this and go down and see the District Attorney ’; and if he had done that, I never would have signed this contract ’ ’.

Mr. Kerin, Sr., his son and Shuman, all testified, in effect, that what they feared was that the labor difficulties confronting them and the picketing which ensued would injure their business. However, there was not a scintilla of proof that the defendants were the inducing cause of that fear, or connected in any way with the incidents creating the condition from which the fear emanated.

The record makes it clear beyond cavil, that Kerin sought out McNamara and importuned him for assistance. Nor is there the slightest suggestion that McNamara expressly or impliedly threatened to take any action detrimental to Atlas or Tower, if his proposal was not adopted by the complainants. The only conclusion most favorable to the prosecution, that may be drawn from the evidence, is that McNamara would not intervene to assist Kerin in overcoming the labor difficulties in which the corporations were embroiled, unless his proposals were accepted. McNamara was under no obligation or duty to take such affirmative action and his failure to do so can scarcely be termed a threat or an extorsive act. If it were otherwise, every response to a request for assistance in return for a monetary payment would constitute the crime of extortion.

It is, of course, important to consider Kerin’s state of mind. As hereinbefore indicated, the record is clear that the defendants made no threats and there was no fear instilled in Kerin and his associates attributable to them. In that connection, Kerin’s offer, before McNamara came on the scene, of a present or gratuity to Lafayette to induce him to organize the Tower and Atlas employees is an unmistakable indication of complainant’s state of mind. Not alone does it point to the absence of any extorsive conduct on the part of the defendants but it warrants the reasonable conclusion that Kerin eagerly sought help in obtaining a favorable contract from a friendly union, for which he was willing, if not anxious, to pay.

By way of analogy, the gravamen of the Federal Anti-Racketeering Act is extortion (U. S. Code, tit. 18, § 19-51) defined almost identically with the section here involved. In Nick v. United States (122 F. 2d 660, 671, cert, denied 314 U. S. 687), the Circuit Court said, “ The gist of the unlawful act is extortion. Extortion involves a state of mind as an element of an offense under the Act. Unless there is some form of compulsion (either physical or fear) there is no crime under this Act. If the exhibitors paid this money of their own initiative and voluntarily there would have been no violation of the Act. It was, therefore, essential to show that such payment was under such compulsion.”

People v. Gardner (144 N. Y. 119, 124) assists in clarifying the point. In that case the defendant was convicted of attempted extortion. It appears that he obtained money from the complainant, a brothel keeper, upon a representation that if she paid it, he would not accuse her of crime. It was not disputed •that the complainant was not put in fear by the defendant at any time, for in negotiating with him she was acting under instructions from the police. While the case involved problems with which we are not concerned, the question of the defendant’s threats as inducing fear is important here. The Court of Appeals pointed out that every element of the crime of extortion was present except that the payment was not actuated by fear, and that “ The threat of the defendant was plainly an act done with intent to commit the crime of extortion, and it tended, but failed, to effect its commission ’ ’. It logically follows that the threat which induces the fear must be made by the defendant or someone acting in concert with him and the fear thus instilled must be attributed to the person charged.

A fair reading of the definition of threats constituting extortion (Penal Law, § 851) indicates that the defendant charged must be a participant in the creation of the fear induced by threats.

In People v. Rollek (280 App. Div. 437, 439, affd. 304 N. Y. 905) the Appellate Division, Fourth Department held, in substance, that there must be “ a threat which creates fear in the person threatened ” to sustain a conviction. In this case both elements are absent. There was neither proof from which the jury could infer a threat by McNamara, nor was there evidence that the complainants were put in fear by any conduct on the part of the defendants.

To adopt the theory of the prosecution would require us to extend the scope of both pertinent sections of the Penal Law (Penal Law, §§ 580, 581), and we are not authorized or empowered to do so.

In construing penal statutes “ according to the fair import of their terms ”, as we are directed to do by the Penal Law (§ 21), we may not extend their scope so that acts, otherwise innocent and lawful, become crimes, unless there is a clear and positive expression of legislative intent to make them criminal (People v. Shakun, 251 N. Y. 107; People v. Phyfe, 136 N. Y. 554; People v. Adamkiewicz, 298 N. Y. 176, 179; see, also, People v. Fein, 292 N. Y. 10, 14; Hornstein v. Paramount Pictures, 292 N. Y. 468, 471).

Nor should a penal statute admit of such a double meaning that a citizen may act upon one conception of its requirements and the courts upon another (People v. Brill, 255 App. Div. 452, 454; United States v. Capital Traction Co., 34 App. Cas. [D. C.] 592).

Mindful as we are of the commendable efforts of law enforcement agencies to curb insidious activities in labor-management relationships, the courts, nevertheless, may not disregard the fundamental rights of one charged with crime. Under the American system of law, even the most corrupt and reprehensible individual may not be deprived of liberty unless his guilt is established within the confines of an applicable penal statute. A desirable end can never justify the use of impermissible or improper means.

The judgments of conviction should be reversed on the facts and the law, and the indictment dismissed.