395 F.2d 47 (7th Cir. 1968), 16314, United States v. Amabile

Docket Nº:16314.
Citation:395 F.2d 47
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph AMABILE, Defendant-Appellant.
Case Date:April 26, 1968
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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395 F.2d 47 (7th Cir. 1968)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph AMABILE, Defendant-Appellant.

No. 16314.

United States Court of Appeals, Seventh Circuit.

April 26, 1968

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Charles A. Bellows, Chicago, Ill., for defendant-appellant.

Thomas A. Foran, U.S. Atty., Gerald Werksman, Asst. U.S. Atty., Edward V. Hanrahan, U.S. Atty., Chicago, ill., for plaintiff-appellee; John Peter Lulinski, Gerald M. Werksman, Asst. U.S. Attys., of counsel.

Before SCHNACKENBERG, SWYGERT and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

This appeal is to review Joseph Amabile's conviction for conspiring with Salvatore Battaglia, Dave Evans and non-defendant Rocco 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

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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 Riley, president of the Riley 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 Amabile 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 Republic, 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).' 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

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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 Amabile 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 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168;

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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 Amabile then...

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