United States v. Joseph Amabile

395 F.2d 47, 1968 U.S. App. LEXIS 7180

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 26, 1968
• Docket: 16314_1
• Status: Published

Opinions

CUMMINGS, Circuit Judge.

This appeal is to review Joseph Amabile's conviction for conspiring with Salvatore Battaglia, Dave Evans and non-defendant Roceo Pranno to violate the Hobbs Act (18 U.S.C. § 1951). The gravamen of the charge was that in January 1965, the conspirators obtained $48,500 from the Riley Management Corporation through threats of bodily harm to its president and economic harm to both. Battaglia’s and Evans’ convictions were affirmed in United States v. Battaglia, 394 F.2d 304 (7th Cir. 1968).

Amabile first argues that the Government failed to prove that he conspired to obtain money from Riley Management Corporation by extortion. A like argument was advanced by Battaglia and Evans and rejected in their appeals. For the reasons stated in the prior opinion, the evidence was sufficient to support Amabile’s conspiracy conviction. See 394 F.2d at p. 310.

Amabile’s next point is that his “extortionate threat made against a man [William Eiley, president of the Eiley Management Corporation] whose business touches interstate commerce” does not violate the Hobbs Act because the threat was only indirectly and remotely connected with interstate commerce. We disposed of this issue in the opinion dealing with Amabile’s co-defendants. See 394 F.2d at p. 311. However, since Ama-bile presses the issue to considerable extent, further discussion may be warranted.

The Hobbs Act “speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252. As to the commerce power, the Supreme Court has recently stated in Katzenbach v. McClung, 379 U.S. 294, 305, 85 S.Ct. 377, 384, 13 L.Ed.2d 290:

“The power of Congress in this [commerce] field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Eepublic, not to interfere.”

Since Congress has used all its “broad and sweeping” commerce power in enacting the Hobbs Act, the courts have rightly attributed great scope to the statute. Thus in language applicable here, Judge Sanborn stated as follows in Hulahan v. United States, 214 F.2d 441, 445 (8th Cir. 1954), certiorari denied, 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 675:¹

“It seems apparent from the language of the statute that it was the intent of Congress to protect interstate commerce against extortion or attempted extortion which in any way or in any degree reasonably could be regarded as affecting such commerce. The exaction of tribute from contractors engaged in local construction work who are dependent upon interstate commerce for materials, equipment and supplies, or who are engaged in constructing facilities to serve such commerce, is, in our opinion, proscribed by [the Hobbs Act].” (Emphasis supplied)²

As in Hulahan, Amabile was exacting tribute from a builder “dependent upon interstate commerce for materials, equipment and supplies” and was therefore within the reach of the Hobbs Act. It is unnecessary that the extortion have as substantial an effect on interstate commerce as a combination in restraint of trade. United States v. Malinsky, 19 F.R.D. 426, 428 (S.D.N.Y. 1956).

As pointed out in our prior opinion, the $48,500 payment made pursuant to Amabile’s threats depleted Riley Management Corporation’s reserves. Depletion is pertinent in considering commerce under the Hobbs Act. Thus in United States v. Provenzano, 334 F.2d 678, 692 (3d Cir. 1964), certiorari denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544, a Hobbs Act commerce instruction was approved which stated in part:

“Where the resources of a business are depleted or diminished in any manner or degree by payments of money obtained by extortion the capacity to efficiently conduct such business is to the extent of the drain on its resources likely to be impaired.”

The Hobbs Act does not require that the threats to Riley and his family be directly aimed at interstate commerce. In the statute Congress defined extortion as obtaining property through “actual or threatened force, violence, or fear” (18 U.S.C. § 1951(b) (2)). There is no requirement that the extortion be directed at interstate commerce as long as the extortion “in any way or degree obstructs, delays, or affects commerce” (18 U.S.C. § 1951(a)). To accept appellant’s construction would mean that Congress had exempted the most efficacious of threats. Certainly Congress did not intend such an anomalous result.

Like his co-defendants, Amabile asserts that the District Court unduly restricted cross-examination. He first asserts that he was not permitted to undermine Riley’s testimony that the Lansing, Illinois, building project was meant to be kept a secret from Amabile and Palermo. As we pointed out in our earlier opinion, “Evans’ counsel was permitted to elicit that the Riley company had prepared a brochure to promote sales of the Lansing apartments, and that the Hammond Times published a story about the project in August, 1964.” 394 F.2d 316. In addition Battaglia’s counsel was permitted to cross-examine Riley, without objection, about advertising for the Lansing project, selling units therein before construction, and taking salesmen to Las Vegas to promote this project. It is clear that Amabile was given sufficient latitude to rebut the secrecy of the Lansing project.

Amabile also complains of the District Court’s refusal to let his counsel ask Riley about the contents of five statements he had given to the Federal Bureau of Investigation, made available to defense counsel under the Jencks Act (18 U.S.C. § 3500). Riley had already testified that he advised the FBI of the 1962-1963 threats of Palermo and Ama-bile and that he had not read the statements. He of course had no way of knowing whether his complaints of the physical threats of Amabile and Palermo had been transcribed by the FBI in those statements. Amabile’s counsel made no attempt to introduce the statements, so that they are not in the record. If the FBI statements were actually devoid of any reference to the Amabile-Palermo threats, Amabile’s counsel should have called the recording FBI agents in order to lay a proper foundation for the admission of the five statements to impeach Riley. As Judge Friendly ruled in United States v. Borelli, 336 F.2d 376, 391 (2d Cir. 1964), certiorari denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555:

“when the witness is confronted with what appears to be an inconsistency, he may deny having made the contradictory statement to the agent and counsel’s only recourse would be to call the agent and endeavor to have him prove the contrary.”

See also 3 Wigmore on Evidence (3d ed.) § 1025.

Amabile repeats another argument offered by his co-defendants in their appeals, namely, that he was not permitted to show that Riley expected consideration in a state court theft indictment and in a federal tax investigation in return for his testimony herein. We rejected this argument in the prior appeal in the last paragraph of our discussion under “Restriction of Cross-examination and Refusal to Admit Defense Exhibits” (394 F.2d at p. 314). The elaboration of this subject in Amabile’s briefs calls for a more detailed discussion.

Of course, a defendant may normally show that a prosecution witness expects favorable treatment from the Government in return for his testimony. 3 Wigmore on Evidence (3d ed.) § 967. It is also well settled that the credibility of a witness may not be impeached by showing that he has been arrested and indicted. Michelson v. United States, 335 , 69 S.Ct. 213, 93 L.Ed. 168; United States v. Bolden, 355 F.2d 453, 457 (7th Cir. 1965), certiorari denied, 384 U.S. 1012, 86 S.Ct. 1919, 16 L.Ed.2d 1018; Wigmore, op cit., § 980a. This principle applies a fortiori to a federal tax investigation that has not resulted in charges being brought against the witness. In the present case, the District Judge was faced with a collision of these two principles. He was entitled to balance the conflicting interests and therefore did not abuse his discretion in keeping Riley’s theft indictment and federal tax investigation from the jury.

Viewed in isolation, Amabile’s effort to explore Riley’s motives for testifying in the Government’s favor might be proper. But we must heed the counsel proffered in Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704 (concurring opinion):

“In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.”

Applying this counsel, Amabile’s entire cross-examination of Riley has been scrutinized.

Riley was subjected to a lengthy cross-examination, and Amabile’s attempts to go into the state court indictment and tax investigation occurred very early. Thereafter, on at least seven occasions, Riley was asked questions implying that he was an unsavory character and financially irresponsible.³ Counsel for Ama-bile then again sought to return to the state court proceedings against Riley. The series of intervening questions was so obviously improper that there has been no attempt on appeal to justify them. Considering the impropriety of the entire inquiry, it is patent that Ama-bile’s references to the state indictment and federal tax investigation were designed to prejudice the jury against Riley through smear, and innuendo rather than to impugn his veracity. Cf. United States v. Pennix, 313 F.2d 524, 528-530 (4th Cir. 1963).

The District Court’s rulings are also supportable on the ground that appellant’s “questions do not appear sufficiently likely to have developed evidence that would have significantly weakened the Government’s case” by showing the witness’ bias. United States v. Jones, 360 F.2d 92, 96 (2d Cir. 1966), certiorari denied, 385 U.S. 1012, 87 S.Ct. 721, 17 L.Ed.2d 549. The United States Attorney does not control investigations being conducted by the Internal Revenue Service. Such investigations are common and usually involve no threat of an indictment. As to the state court criminal action, the United States Attorney was of course not empowered to accord any consideration. On this record, the District Court could properly conclude that the questions were speculative, unrelated to the charges against the defendant and not of sufficient probative value to show bias. District of Columbia v. Clawans, 300 U.S. 617, 632, 57 S.Ct. 660, 81 L.Ed. 843 ;⁴ Lott v. United States, 230 F.2d 915, 918 (5th Cir. 1956), certiorari denied, 351 U.S. 953, 76 S.Ct. 848, 100 L.Ed. 1477; Leary v. United States, 383 F.2d 851, 868 (5th Cir. 1967), certiorari granted on another issue, 392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362; United States v. Higgins, 362 F.2d 462 (7th Cir. 1966), certiorari denied, 385 U.S. 945, 87 S.Ct. 316,17 L.Ed.2d 224; Abeyta v. United States, 368 F.2d 544 (10th Cir. 1966).⁵

Because the United States Attorney was not empowered to influence the course of the state theft case or the tax investigation, and because the questions, in the light of other improper questions to Riley during his cross-examination, were part of a smear campaign, we cannot say that the District Court abused its discretion in its rulings concerning these two subjects.

Amabile claims that his counsel was given insufficient time to read a 6-page statement that witness Henry La-Key had given to the FBI.⁶ This statement was delivered to defense counsel under the Jencks Act at 10 A.M. on April 21, 1967. He had sufficient opportunity to read it from then until 2 P.M., when the usual noon recess ended and the cross-examination of LaKey began. There has been no showing that his cross-examination of LaKey would otherwise have been different if more time had been allowed for study of LaKey’s statement. Co-defendants’ counsel did not even raise the point on appeal. In the absence of a showing of prejudice, the District Court did not abuse its discretion by allowing only such time as is “reasonably required for the examination of such statement” (18 U.S.C. § 3500 (c)).

Battaglia contended on his appeal that the Government should have granted his request for production of Mike DiVito’s grand jury testimony. We held that production was unnecessary. See 394 F.2d 304. In addition to DiVito’s grand jury testimony, Amabile insists that he was entitled to the minutes of the grand jury testimony of witnesses Henry LaKey and William Riley.⁷ Each request was made during the cross-examination of these witnesses. We find no error was committed by the District Court’s failure to turn over these grand jury minutes.

“The extent of cross-examination rests in the sound discretion of the trial judge. Reasonable restriction of undue cross-examination, and the more rigorous exclusion of questions irrelevant to the substantial issues of the case, and of slight bearing on the bias and credibility of the tvitnesses, are not reversible errors.” (Emphasis supplied)

Amabile relies principally on Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, but that case adheres to the earlier standard that a trial court need not allow the defense to examine grand jury minutes in the absence of a showing of a particularized need. At the time that Amabile’s counsel requested the grand jury testimony of each of these witnesses, unlike counsel for the defendants in Dennis, he did not show particularized need and cannot now supply that requirement by hindsight.

Here, as in United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077, and Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323, defendants sought a wholesale disclosure of grand jury testimony as a matter of right, whereas in Dennis the defendants only sought a disclosure of particular testimony.

Moreover, in Dennis, there was a 7-year time lag between the grand jury and trial testimony. Thus as Judge Waterman pointed out in United States v. Youngblood, 379 F.2d 365, 367 (2d Cir. 1967), “there was reason to assay the latter [trial] testimony, some of which is 15 years after the event against the much fresher testimony before the grand jury” concerning occurrences between 1948 and 1955. Here there was no such significant interval between the 1966 grand jury testimony of these witnesses and their 1967 trial testimony.

When Amabile’s counsel asked to inspect the grand jury testimony, the Assistant United States Attorney offered to give a copy to the Court for an in camera inspection.⁸ This offer was not accepted by defense counsel. If it had been accepted, the statements might have been turned over to them, so that any error in this connection was of defendant’s own making.

For all these reasons, there was no abuse of discretion in denying production of the grand jury transcripts.

In United States v. Youngblood, 379 F.2d 365, 370 (2d Cir. 1967), the Court of Appeals for the Second Circuit promulgated a prospective rule giving the defense access as of right to a witness’ grand jury testimony on the subjects about which he testified at the trial, unless the Government can show that access should be denied. At the oral argument of this appeal, the Government stated that it had no objection to such a prospective rule in this Circuit. We approve of the Youngblood procedure and adopt it with respect to trials commencing after this judgment is entered.

Amabile’s final point is that the District Court erred in failing to order a pre-trial preliminary examination before a commissioner pursuant to Rule 5(c) of the Federal Rules of Criminal Procedure.⁹ However, by its terms, Rule 5 was meant to afford an arrested person an opportunity to challenge the existence of “probable cause to believe that an offense has been committed and that the defendant has committed it.” As the Supreme Court has stated, a preliminary hearing under Rule 5 is not required where, as here, an indictment has already been returned (Jaben v. United States, 381 U.S. 214, 220, 85 S.Ct. 1365, 14 L.Ed.2d 345), for the grand jury already has found probable cause for holding the defendant for trial. Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967), Sciortino v. Zampano, 385 F.2d 132, 133 (2d Cir. 1967), certiorari denied, 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 873.¹⁰ Neither the language of Rule 5 nor its history supports Amabile’s assertion that its purpose was to afford pre-trial discovery.

The judgment of the District Court is affirmed.

1 . Recent instances where this Court has affirmed Hobbs Act convictions in cases involving construction projects are United States v. Kramer, 355 F.2d 891 (7th Cir. 1966), certiorari denied (except on an irrelevant point), 384 U.S. 100, 86 S.Ct. 1366, 16 L.Ed.2d 396, and United States v. Sopher, 362 F.2d 523 (7th Cir. 1966), certiorari denied, 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210.

2 . The Hulahan ease has been followed by this Court at least twice: United States v. Floyd, 228 F.2d 913, 916, 918-919 (7th Cir. 1956), certiorari denied, 351 U.S. 938, 76 S.Ct. 835, 100 L.Ed. 1466; United States v. Green, 246 F.2d 155, 160 (7th Cir. 1957), certiorari denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76.

3 . Seven such occasions are as follows:

“Q. Weren’t you arrested while you were drunk for exposing yourself?” *****

“Q. Did you ever get into a fight with a young man at the El Morrocco Club because you were so drunk?” *****

“Q. As a matter of fact, isn’t it true in order to get that loan you bribed one of the officers [of the savings and loan association] ?

“A. No, sir.

“Q. And paid him $25,000?”

“Q. Did you know it was an offense against the laws of the United States to bribe an official of a loan association for the purpose of obtaining a loan?” *****

“Q. Weren’t you sued by Margaret Gillespie for fraud?” *****

“Q. As a matter of fact, you were broke at that time.”

* * * * *

“Q. * * * did you sign a check to a payee by the name of Bona for $23,-000 which came back ‘NSE’?”

4 . In Clawans, the reversal of the District Court was affirmed, but the Court observed (300 U.S. at p. 632, 57 S.Ct. 660) :

5 . Amabile has cited no case holding that it is reversible error to refuse to allow a defendant to show that a prosecution witness is biased because he expects favorable treatment on a pending indictment in another jurisdiction or in a tax investigation. In United States v. Masino, 275 F.2d 129 (2d Cir. 1960), favorable treatment had actually been accorded to the witness, and in Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, the trial judge warned the witness awaiting sentence on a guilty plea that leniency depended upon cooperation with the gov-eminent. Wheeler v. United States, 351 F.2d 946 (1st Cir. 1965), and Harris v. United States, 371 F.2d 365 (9th Cir. 1967), are distinguishable because they involved direct financial benefits to the witness. ■

6 . This statement is part of the record on appeal and took us and Government counsel less than 11 minutes to read. The District Court was able to digest and rule on ten such statements by witness Riley during the April 27th luncheon recess.

7 . Excerpts from Riley’s grand jury testimony were appended to Battaglia’s petition for rehearing of his appeal. They show that Amabile purportedly made the following threat to Riley in 1964 as to the tax investigation of Riley:

“Don’t tell them anything. You know what happens to guys who talk, don’t you?”

Riley replied to Amabile and Palermo: “What is the matter with you guys? On one hand you tell me you will kill me if I don’t pay you the money; on the other hand these guys [Internal Revenue agents] tell me they will put me in jail.”

8 . The Supreme Court has not disapproved of in camera inspection by a trial court in order to enable it to rule on a defense motion for production of grand jury testimony. Dennis v. United States, 384 U.S. 855, 874, 86 S.Ct. 1840, 16 L.Ed. 2d 973.

9 . Bule 5(c) provides in pertinent part: “ * * * If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. i\s sje * if

10 . In Sciortino, Judge Hays showed that the contrary rule in Ross v. Sirica, 380 F.2d 557 (D.C.Cir.1967), was not supported by a majority of that Court, nor has it been adopted in any other Circuit. See 385 F.2d at p. 134.