United States v. Robert Capo, Tadeusz Snacki, A/K/A "Ted Snacki", and Walter Snacki

817 F.2d 947, 1987 U.S. App. LEXIS 6441

• Court: Court of Appeals for the Second Circuit
• Decided: April 24, 1987
• Docket: 409, 421, Dockets 85-1290, 85-1291
• Status: Published

Opinions

KEARSE, Circuit Judge,

joined by

TIMBERS, Circuit Judge, dissenting:

While I agree with much of the en banc majority’s opinion as to the proper interpretation of the Hobbs Act, I dissent because the result it reaches depends on the majority’s own interpretations of the evidence that are contrary to permissible inferences apparently drawn by the jury.

As the majority points out, we all agree that the instructions given to the jury were correct. The dividing point in this case is the proper factual inferences to be drawn from the evidence adduced at trial. Of that evidence, summarized in the panel majority opinion, see 791 F.2d at 1057-59, the most overt statement by a defendant that the jury could have interpreted as inducing fear on the part of the victims that they would be “denied any chance to obtain [Kodak employment] unless [they] paid,” United States v. Brecht, 540 F.2d 45, 52 (2d Cir.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 578 (1977), was Walter Snacki’s response to a question from Paul Kelso as to why Walter must be paid in order for Kelso’s wife to get a job at Kodak. Walter asked, “You want her to get a job, don’t you[?]” Further, though Walter may not have come right out and made the same statement to others, he nonetheless apparently managed to convey the impression that defendants had the power to withhold Kodak jobs unless the demanded payments were made. Josephine Kane, who made or arranged payments for four people to get jobs, testified as follows:

“Q. [Cross-examination by Ted Snacki’s lawyer] Now, it is true, Mrs. Kane, is it not, that on none of these four occasions did Walter Snacki tell you that if you didn’t pay him the money none of those people would get employed — would ever get employed at Eastman Kodak Company, correct?

A. No. He did not come out and say that, no.”

“Q. [Redirect examination by the government] Mrs. Kane, Mr. Palmiere just asked you whether in your conversations with Mr. Snacki regarding these jobs he ever told you that these individuals wouldn’t get a job if they didn’t pay, and I believe your answer was he didn’t come right out and say that.

Was there something that led you to believe that that might be the case?

A. Well, when he said that, you know, if he had the right amount of money he could get him the job. So I automatically figured they weren’t going to get a job, you know, unless they got the money. But he didn’t come out and say it.

The jury, properly instructed that it could not return a verdict of guilty on any Hobbs Act count unless it found that the victim reasonably feared that the defendant could and would impede his chances of getting a Kodak job, found the defendants guilty of most of the Hobbs Act charges against them. The en banc majority reaches the conclusion that the evidence was insufficient to support these verdicts by giving its own “fair[] interpretation],” ante at 954, to Walter’s statement to Kelso, and by making its own finding that other evidence “supports the conclusion,” ante at 953, that payments were made “voluntarily” and not out of any fear that defendants could or would impede the victims’ being hired at Kodak. Were I the factfinder, I might agree. But because the factfinder was the jury and our province is to review its findings by taking the evidence and drawing all inferences in the light most favorable to the government, I dissent.