United States v. Davidoff

845 F.2d 1151, 1988 WL 35248
CourtCourt of Appeals for the Second Circuit
DecidedApril 20, 1988
DocketNos. 1084, 1085, Dockets 86-1523, 87-1035
StatusPublished
Cited by86 cases

This text of 845 F.2d 1151 (United States v. Davidoff) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Davidoff, 845 F.2d 1151, 1988 WL 35248 (2d Cir. 1988).

Opinions

JON O. NEWMAN, Circuit Judge:

This appeal concerns primarily the extent of the Government’s obligation to provide notice in a bill of particulars of uncharged acts of racketeering it intends to prove to obtain a conviction for violation of the Racketeer Influenced and Corrupt Organizations statute (RICO), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986). The issue arises on an appeal by Harry Davidoff from a judgment of the District Court for the Eastern District of New York (Joseph M. McLaughlin, Judge) convicting him, after a jury trial, of one count of conspiracy to violate the RICO statute, in violation of 18 U.S.C. § 1962(d), and four counts of extortion offenses, in violation of 18 U.S.C. § 1951 (1982). Because we conclude that in the circumstrances of this case it was error not to grant the defendant’s request for a bill of particulars, we reverse and remand for a new trial.

Facts

This case concerns extortion perpetrated against air freight forwarders operating at John F. Kennedy International Airport (JFK). The extortion was orchestrated and carried out by members of the Lucchese Crime Family, which the Government alleged was a RICO “enterprise.” 18 U.S.C. § 1961(4). The extortionate payments were extracted in return for labor peace, frequently by threatening to have labor unions enforce to the hilt the onerous terms of their collective bargaining agreements. Once an employer made the requested payments, the unions moderated [1153]*1153their insistence on compliance with the terms of the labor agreements.

Defendant-appellant Harry Davidoff was a vice-president of Local 851, International Brotherhood of Teamsters. He had previously founded Teamsters Local 295. These locals represented clerical workers and truckers, respectively, employed by air freight and trucking companies handling air freight business at JFK. There was evidence that Davidoff in practice had authority to make decisions concerning the actions of both unions.

The 28-count indictment originally charged Davidoff and nine co-defendants with a RICO conspiracy and various extortion offenses. Before trial, three co-defendants pled guilty, and the charges against one were severed. Five co-defendants pled guilty during the trial. Trial continued against Davidoff alone on a redacted indictment limited to the five counts that named him as a defendant — one count of RICO conspiracy and four counts of extortion offenses. The RICO conspiracy count alleged a “pattern of racketeering activity,” 18 U.S.C. § 1961(1), (5), consisting of acts of extortion, in violation of 18 U.S.C. § 1951, and unlawful payments to unions, in violation of 29 U.S.C. § 186 (1982 & Supp. Ill 1985). The RICO conspiracy count further alleged that it was part of the conspiracy to commit extortion offenses and that these offenses “included, but were not limited to,” the violations set forth in the four remaining counts of the indictment. These four counts all alleged extortionate demands directed in one way or another at Air Express International Corp. (“AEI”). Two of these extortion counts charged a conspiracy and an attempt to extort money from AEI, Consolidated Freightways, Inc. (“CF”), and CF’s subsidiary, CF Air Freight (“CFAF”). The theory of these two counts was that the defendants had threatened to block a proposed merger of AEI and CFAF unless they received money from the principals of the companies to the proposed merger. By virtue of their collective bargaining agreements, Locals 295 and 851 had the power effectively to block any merger that purported to enable a company acquiring AEI to use members of other unions to handle AEI’s work. The other two extortion counts charged a conspiracy and a completed extortion of money from AEI alone. The theory of these two counts was that the defendants demanded and received payments from AEI primarily under threat of strict enforcement of the locals’ collective bargaining agreements.

Prior to trial Davidoff and his co-defendants moved under Fed.R.Crim.P. 7(f) for a bill of particulars, asking the Government to “state with particularity the unspecified violations indicated [in the RICO conspiracy count] by the phrase ‘but were not limited to.’ ” The Government opposed this request on the ground that the information sought was “evidentiary in nature.” Judge McLaughlin denied this and most other aspects of the request for a bill of particulars, requiring the Government to supply information concerning only securities fraud counts, which did not name Davidoff as a defendant. United States v. Santoro, 647 F.Supp. 153, 188 (E.D.N.Y.1986). The District Judge’s ruling did not deal explicitly with the request for identification of the unspecified extortion offenses. He noted that providing much of what was sought by the entire request for a bill of particulars would reveal the Government’s proof and that some of the information requested was already contained in documents previously made available to the defendants.

At trial, over Davidoff’s objection, the Government was permitted to introduce evidence of extortions directed against three air freight companies, Pandair, Randy International, and TAT, Inc. None of these companies had been identified in the indictment, and none of the extortions aimed at them involved AEI. The Government asserted that these extortions constituted other acts of racketeering. Defendant objected on the ground that he had not been informed that the Government would seek to prove extortions against these three companies. The objections were overruled, though the basis of admissibility was not specified. Later, in the course of denying a motion for a new trial, the District Judge indicated that the evidence of extortion [1154]*1154against these three companies had been properly presented to prove the existence of a RICO enterprise, citing United States v. Bagaric, 706 F.2d 42 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983).

When the case was submitted to the jury, Judge McLaughlin charged that the element of a pattern of racketeering activity required a finding that the defendant agreed to commit at least two of the specified racketeering acts, referring to the four extortion offenses directed against AEI, which were alleged as separate counts in the indictment. The jury found Davidoff guilty of the RICO conspiracy count and the four extortion counts. He was sentenced to twelve years’ imprisonment, fined $125,000, and ordered to forfeit $25,000.

Discussion

The principles governing requests for a bill of particulars are well settled.

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Cite This Page — Counsel Stack

Bluebook (online)
845 F.2d 1151, 1988 WL 35248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-davidoff-ca2-1988.