Esperti v. United States, 25194

• Decision Date: 02 June 1969
• Docket Number: No. 25194,25233 & 25234.,25194
• Parties: Anthony ESPERTI, Appellant, v. UNITED STATES of America, Appellee. Sam Nick FARINELLA, Appellant, v. UNITED STATES of America, Appellee. William Joseph DARA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 148 (1969)

Anthony ESPERTI, Appellant, v. UNITED STATES of America, Appellee.

Sam Nick FARINELLA, Appellant, v. UNITED STATES of America, Appellee.

William Joseph DARA, Appellant, v. UNITED STATES of America, Appellee.

Nos. 25194, 25233 & 25234.

United States Court of Appeals Fifth Circuit.

January 13, 1969.

Rehearing Denied February 6, 1969.

Certiorari Denied June 2, 1969.

Louis Vernell, Miami Beach, Fla., for Esperti.

Steadman S. Stahl, Jr., Hollywood, Fla., Milton S. Grusmark, Miami Beach, Fla., for Farinella.

William G. Earle, Atty., Dept. of Justice, Miami, Fla., for the United States.

Before BELL and MORGAN, Circuit Judges, and GUINN, District Judge.

Rehearing Denied in Nos. 25233 and 25234, February 6, 1969.

Certiorari Denied June 2, 1969. See 89 S.Ct. 2005.

GUINN, District Judge:

Defendants Dara, Farinella and Esperti appeal from conviction on two counts of violation of the Hobbs Act, 18 U.S.C. Sec. 1951¹ the first anti-racketeering statute passed by Congress. Dara received concurrent seven and one-half years on each count. Farinella and Esperti each received concurrent ten year sentences.

On appeal the facts must be considered most favorably to the Government to support the verdicts. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

John Maloney and Joseph Yeager were fifty percent profit-sharing partners in the Red Ball Merchandising Corporation in Hialeah, Florida. Red Ball sold closeout merchandise. Its interstate sales and purchases amounted to ninety percent of its business.

On September 13, 1966, at 4:00 P.M., Maloney was in his office at Red Ball preparing a deposit slip for a $2000 cash bank deposit received via Western Union for a sale to a Chicago customer. The cash was in $100 bills. Maloney left his office and entered Yeager's office where he saw, for the first time in his life, the three appellants. Esperti and Farinella each had guns. Yeager and an employee, William Waldorf, were also in Yeager's office. Esperti's gun was pointed at Yeager and Farinella's at Waldorf.

Esperti grabbed Maloney, threw him on the couch and told him that, "We're here to get the other $25,000.00 for the man in New York." Esperti put the gun alternatively against Maloney's and Yeager's heads and demanded the $25,000 immediately. Meanwhile Dara left the room and reentered with the deposit slip and the $2000 Maloney had been preparing to put in the bank. He said, "Look what I found" and Esperti took it from him adding, "That don't count toward the $25,000." Farinella added, "You've got a lot of merchandise out there. Sell it. Get the money." They left with the $2000. Yeager kept inquiring to whom Red Ball owed the money. This angered Esperti and he hit Yeager.

Two months later Dara and Maloney met at the Shalimar Restaurant and Dara said that he had received a call from New York City to collect some money from Yeager. Defense counsel were unable to establish that Maloney or Red Ball or Yeager owed any individual any sum of money.

Defendants were acquitted of Count I, a conspiracy charge. They were also acquitted of two remaining substantive counts concerning events of the following day which are not pertinent here.

The first question presented is the sufficiency of the indictment. The indictment satisfies the requirements of Rule 7(c) of the Federal Rules of Criminal Procedure. It is drafted substantially in the words of 18 U.S.C. Section 1951. See United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Turf Center v. United States, 325 F.2d 793 (9th Cir. 1963).

The next question presented is the sufficiency of the evidence to show that the Defendants robbed Red Ball Merchandising Corporation of $2000 as defined in the Hobbs Act. The evidence is sufficient and establishes that $2000 was taken unlawfully from the Red Ball personnel against their will by means of the threatened force of the guns brandished by Farinella and Esperti. It is clear that the taking of $2000 from a business engaged in interstate commerce would obstruct, delay or affect commerce. United States v. Provenzano, 3 Cir. 1964, 334 F.2d 678, 692, cert. denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964); United States v. Tolub, 2 Cir. 1962, 309 F.2d 286, 288; United States v. Kramer, 7 Cir. 1966, 355 F.2d 891, 898.

The next contention made by the Defendants is that the attempted extortion and consummated robbery did not obstruct, delay or affect commerce. This contention is without merit. Once the robbery and attempted extortion of Maloney and Red Ball was established, it was not necessary to show that any particular shipment of merchandise moving to and from Red Ball was obstructed or delayed. It is a depletion of the resources of the business which permits the reasonable inference that its operations are obstructed or delayed. United States v. Provenzano, supra.

The Defendants also contend that the witness Maloney should have not been permitted to refresh his recollection with a copy of a statement given by him to an agent of the FBI. It is hornbook law that any writing may be used to refresh the recollection of a witness. See Wigmore, Evidence § 758. This is true even where the document itself would be...