451 F.2d 49 (3rd Cir. 1971), 19295, United States v. Addonizio
| Docket Number | 19391-19393.,19295 |
| Date | 16 September 1971 |
| Citation | 451 F.2d 49 |
| Parties | UNITED STATES of America v. Hugh J. ADDONIZIO, Appellant in No. 19391, et al. Appeal of Ralph VICARO in No. 19295. Appeal of Anthony P. LA MORTE, Appellant in No. 19392. Appeal of Joseph BIANCONE, Appellant in No. 19393. |
| Court | U.S. Court of Appeals — Third Circuit |
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Argued Feb. 18, 19, 1971.
As Amended Sept. 24, 1971 and Jan. 6, 1972.
Certiorari Denied Feb. 22, 1972.
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Patrick M. Wall, New York City, for Ralph Vicaro.
Bernard Hellring, Hellring, Lindeman & Landau, Newark, N. J. (Michael Edelson, Paterson, N. J., on the brief), for Hugh J. Addonizio and others.
Peter S. Valentine, Glickman & Valentine, Newark, N. J (Julius A. Feinberg, Bloomfield, N. J., on the brief), for Anthony P. La Morte.
Thomas R. Dyson, Jr., Washington, D. C., for Joseph Biancone.
Herbert J. Stern, U. S. Atty, Newark, N. J. (Garrett E. Brown, Jr., John W. Bissell, William Braniff, Asst. U. S. Attys., and Donald W. Merkelbach, Special Asst. U. S. Atty., Frederick B. Lacey, U. S. Atty., Newark, N. J., on the brief), for appellee.
Before FREEDMAN, [*] SEITZ and ROSENN, Circuit Judges.
OPINION
ROSENN, Circuit Judge.
Appellants, along with eleven others, 1 were named as defendants in an indictment containing one count charging a conspiracy to interfere with interstate commerce by means of extortion, and sixty-five counts charging substantive acts of extortion pursuant to the conspiracy, in violation of 18 U.S.C. § 1951 (the Hobbs Act). 2 After a trial of seven
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weeks, the jury returned a guilty verdict against all the appellants on the conspiracy count and all but two substantive counts. 3 On September 22, 1970, Addonizio, Biancone and La Morte were each sentenced to ten years in prison. In addition, Addonizio and Biancone were each fined $25,000.00; La Morte was fined $10,000.00. Vicaro was sentenced to twelve years in prison and fined $10,000.00.
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I.
THE EVIDENCE
The Government's theory was that, from as early as 1962 until the date of the indictment, there existed a conspiracy including as its members at various times, the Mayor of Newark, New Jersey (appellant Addonizio), certain members of the city government (including appellant LaMorte) and a group headed by defendant Boiardo (including appellants Biancone and Vicaro), the object of which was to extort kickbacks from contractors, suppliers and engineers engaged in public work projects with the city of Newark, and that in many specific instances the object of this conspiracy was attained. Most of the evidence at trial related to two major city projects-the Southside Interceptor Sewer System (the "Southside project") and the Southerly Extension of Newark's water supply system (the "Southerly Extension"). The following is a capsulized version of the evidence relating to those two projects, viewed in the light most favorable to the Government.
A. The Southside Project.
Plans for this sewage project began in 1954, with the initiation of the first of two preliminary surveys by the engineering firm of Elston T. Killam Associates (Killam). In 1964, Mayor Addonizio's administration awarded Killam a contract for both the design and the construction supervision phases of this project. The plan called for the installation of an interceptor sewer system through which sewage would be transported from the city of Newark to a treatment plant operated by the Passaic Valley Sewage Commission.
One element of the extortion scheme involved the potential suppliers of pipe for this project. Since the Sewage Commission charged the city of Newark for the volume of sewage entering the plant as measured by a metering device, the Killam firm placed great emphasis on the necessity of obtaining pipe with minimum leakage, since ground water leaking into the pipe would increase the metered flow and add to the cost to the city. Killam's drawn specifications therefore required that the pipe to be used be fabricated with rubber and steel joints, the closest fitting joints available. Several companies, including the International Pipe and Ceramic Company ("Interpace", formerly Lock Joint Pipe Company), manufactured pipes with rubber and steel joints. Defendant Gallo owned several companies which made only pipe with rubber and concrete joints, which permitted much greater leakage.
Killam vigorously and successfully opposed an effort by LaMorte, then assistant to the Newark Director of Public Works and later Director, to substitute rubber and concrete joints in the specifications and increase the leakage allowance by 25%. LaMorte, however, succeeded in having Killam reluctantly include the rubber and concrete joints as an alternate in the specifications. LaMorte then met with Harry Gillespie, an executive of Interpace, and informed him that the job was his-so long as the required 10% was forthcoming. Interpace, a manufacturer of both types of joints, eventually refused to go along.
When Paul Rigo, an engineer with the firm which eventually replaced Killam, spoke to Mayor Addonizio concerning the superiority of rubber and steel joints, the Mayor informed him that the pipe would be supplied by Gallo, since he, the Mayor,
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"had an interest in [him]." Gallo had by this time expressed his willingness to Sepede, a project engineer, to pay a required ten percent kickback in order to obtain the supply contract. Alerted by Gillespie, several councilmen raised the issue of the two types of pipe at a council meeting and questioned the propriety of using rubber and concrete joints. In response, the Mayor twice stated, falsely, that only Interpace, which had withdrawn from the bidding, manufactured pipe with rubber and steel joints. In fact, a number of firms, including the New Jersey plant of the Martin Marietta Company, manufactured such pipe. The contract to supply the pipe was ultimately awarded to Gallo.
In the meantime, Killam had been forced out of the project because it refused to pay any kickback. LaMorte, accompanied by an otherwise-unidentified "Mr. B.," informed Killam's vicepresident, Joseph Foley, at a luncheon that Killam had somehow "slipped through" the city's system of "kickbacks or shakedowns" and would thereafter be required to kick back 5% of its fee. Foley refused. Later Chairman of the Board, Elston Killam, and President Peter Homack, were summoned to City Hall. When they arrived, they went to the office of the Director of Public Works, where they were intercepted by LaMorte. He introduced them to the appellant, Biancone (who never had any official connection with the city government). Biancone took Killam and Homack into the Mayor's office and introduced them to Mayor Addonizio as the engineers who were designing the Southside project. Immediately after the introduction, however, Biancone and LaMorte took the engineers into the corridor outside of the Mayor's office where Biancone informed Killam and Homack that the administration wanted 5% of the firm's engineering fee. Killam refused, Biancone then demanded 4%, then 3%. Killam refused each demand and said he would pay nothing. He indicated he would not be involved in any kickback, would rather give up the contract on Southside, as well as other work he had secured from the City several years earlier and prior to Addonizio's election as Mayor. A few days later, Killam, despite ten years of work on the project, withdrew from it.
The Killam contract was thereupon assigned to a partnership involving Dr. Charles Capen, an elderly engineer, and John Sepede who, unknown to Capen, had already agreed with the defendant Boiardo to pay the required 10%. Sepede soon became ill with cancer, however, and Capen called Paul Rigo, a young engineer, and asked him to help on the project. Rigo accepted. The day he began work Sepede died.
It was not until several weeks later, in March 1965 that Rigo learned of the Boiardo-Sepede "deal" when LaMorte summoned Rigo to accompany him to meet the "real boss" of Newark. Rigo drove to the offices of Valentine Electric in Newark, where LaMorte introduced him to the defendant Ruggiero "Tony Boy" Boiardo. La Morte remained outside the room during the ensuing conversation between the two. Boiardo told Rigo that if he wanted to get paid for the work he had done, and to continue to be paid, he would have to pay to Boiardo, in cash, 10% of all monies he received. Boiardo would, in turn, "take care of" the Mayor, council and "anybody else that has to be taken care of down there." Boiardo said this had been the deal with Sepede and that Rigo was going to be bound by it. Rigo, confronted by the demand, refused to pay. Boiardo said "everybody in Newark pays 10% or they don't work in Newark and they don't get paid in Newark. Look what happened to Killam. He didn't get paid or [sic] he didn't pay. He is not in Newark and he is going to sweat a long time before he gets what is owed him."
Faced with these threats, Rigo asked that the demand be lowered to 5%. Boiardo refused, and told Rigo that he, Boiardo, and his group had a plumbing supply firm (the Kantor firm, discussed below) which could cash Rigo's checks for a fee and issue him covering bills.
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Rigo, protesting that as an engineer he could not justify bills from a plumbing supply firm, told Boiardo that he would have to use his own corporation, Constrad, to cash the checks. Boiardo said that he did not care how Rigo got the cash, but that he had better get it. Rigo capitulated. Boiardo then told him he would be paid soon and that "somebody" would be in touch with him.
After Rigo received the first check, he received a call from someone who sounded like Boiardo, who asked if the payment was ready and said that someone would be down to pick it up that day. Later, Mario Gallo...
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