U.S. v. Campanale
| Decision Date | 04 June 1975 |
| Docket Number | Nos. 73-2643,73-2747 and 73-2865,73-2833,s. 73-2643 |
| Parties | 77 Lab.Cas. P 10,948 UNITED STATES of America, Appellee, v. Enrico CAMPANALE and Donald Matthews, Appellants. UNITED STATES of America, Appellee, v. Mike GRANCICH et al., Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CHAMBERS and HUFSTEDLER, Circuit Judges, and KING, * District Judge.
STATEMENT OF THE CASE
A nine-count indictment returned on June 29, 1972, 1 in the United States District Court for the Central District of California charged appellants and three co-defendants 2 with conspiracy to conduct a pattern of racketeering activity (Counts 1 and 2) in violation of 18 U.S.C. § 1962(d), and with substantive offenses of requesting and receiving money in violation of 29 U.S.C. § 186 (Counts 3 and 4), obstructing and attempting to obstruct interstate commerce by extortion in violation of 18 U.S.C. § 1951 (Counts 5, 6 and 7), and picketing for personal profit in violation of 29 U.S.C. § 522 (Counts 8 and 9). 3 Another indictment returned on February 13, 1973, just prior to trial 4 charged Galea and Martinez with one count of obstruction of justice through injury to property of Robert Dougherty because of his testimony before a grand jury, in violation of 18 U.S.C. § 1503. The two indictments were consolidated for trial.
The June indictment in Counts 1 and 2 charged two extortion conspiracies in the Vernon, California, area by members of Meat and Provisions Drivers, Teamsters Local 626 (hereinafter "Local 626") 5 and Pronto Loading and Unloading Company (hereinafter "Pronto") 6 to participate in a pattern of racketeering activity. Specifically, Count 1 charged a conspiracy between 1968 and 1972 to conduct a pattern of racketeering activity by intimidating and forcing meat packers to contract for Pronto's services and by extorting money from Pronto's competitors in the unloading business as a condition for continuance in business, and set out seven overt acts of which three occurred after October 15, 1970. 7 Count 2 charged a conspiracy between 1968 and 1972 to conduct a pattern of racketeering activity by extortionate intimidation of meat packers, and set out ten overt acts of which five occurred after October 15, 1970.
Following a jury trial in March 1973, Galea, Grancich, Jayich, and Macht were convicted of the Count 2 conspiracy; Grancich was convicted of the Count 1 conspiracy and of the substantive offenses in Counts 3 and 4; Campanale and Matthews were convicted of the Count 1 conspiracy and of the substantive offenses in Counts 5 and 6; Galea was convicted of the Count 1 conspiracy, the substantive offenses in Counts 3, 4, 5, and 7, and the offense charged in the February indictment; Martinez was convicted of the offense charged in the February indictment.
Campanale and Matthews filed separate notices of appeal (Nos. 73-2643 and 73-2833.) Grancich, Jayich, and Macht (No. 73-2865) and Galea and Martinez (No. 73-2747) filed a joint notice of appeal. 8 All appeals were heard together.
We reverse as to the Count 2 conspiracy and affirm as to all other counts.
Appellants Campanale and Matthews joined in the other appellants' arguments and raised nine issues or errors, as follows:
I. The trial court's denial of their motion for a separate trial.
II. The trial court's denial of their motion for a bill of particulars and to strike surplusage and to dismiss the indictment.
III. The trial court's denial of their motion for a judgment of acquittal.
IV. The trial court's admission of evidence "against Appellants Campanale and Matthews on matters that were not the subject of the indictment against them."
V. The trial court's action in restricting cross-examination and excluding evidence, especially as to the financial condition of employers in the unloading service industry in Vernon, California.
VI. The trial court's instructions, especially with respect to the conspiracy charges.
VII. The admission of evidence as to acts occurring prior to October 15, 1970, in support of the conspiracy charges, as a matter of evidentiary law.
VIII. The admission of evidence as to acts occurring prior to October 15, 1970, in support of the conspiracy charges, as a matter of statutory interpretation.
IX. The constitutionality of the Organized Crime Control Act of 1970 if interpreted to permit evidence as to acts occurring prior to October 15, 1970, in support of a conspiracy charge under the statute.
Appellants Galea, Grancich, Jayich, Macht, and Martinez joined in all of the arguments presented by Appellants Campanale and Matthews, and raised four additional issues, as follows:
X. The conduct of the trial judge was such as to deprive appellants of their right to a fair trial.
XI. The prosecuting attorney was guilty of purposeful and flagrantly prejudical conduct such as to deprive appellants of their right to a fair trial.
XII. The evidence adduced at trial was insufficient to justify any of the convictions.
XIII. 18 U.S.C. § 1503 does not apply to the conduct brought out at the trial.
Jayich and Macht were business agents of Local 626. They were found not guilty of any substantive offense, but guilty of the Count 2 conspiracy offense. Also found guilty of the Count 2 conspiracy offense were Chacon and Rico. 9 As to the latter two, the trial judge entered a judgment of acquittal notwithstanding the verdict. We agree with these appellants that their situation was indistinguishable as a matter of law from that of Chacon and Rico.
The government's argument in this regard is notably skimpy. The government's brief states:
The evidence was also sufficient to convince the jury beyond a reasonable doubt that business agents Jayich and Macht were members of the Count 2 conspiracy. Once a conspiracy has been clearly established, slight evidence may be sufficient to connect a defendant with the conspiracy. (citing cases).
This "slight evidence" is summarized by the government as follows:
(On April 2, 1971) Macht prevented Ruchti employees from picking up meat at a packing house and told Ruchti II that he could not do business in California without Grancich's approval. (Tr. 466, 783.) On April 28th, Jayich chased a Ruchti truck and told the driver he would like to work him over (Tr. 785, 816). On April 28th and 29th Macht made threatening gestures with his fists against Ruchti II and against the son of the owner of the property rented by Ruchti Transport. (Tr. 825, 828.) On May 5th when Galea and Loya tried to break in the door of the Paramount cooler, Macht and Jayich stopped meat deliveries to the cooler (Tr. 794, 799). The evidence, therefore, was sufficient that Jayich and Macht were members of the Count 2 conspiracy.
The April 28th and 29th actions detailed took place in connection with picketing carried on as part of a dispute over wage claims. These picketing activities were the subjects of Counts 8 and 9, respectively, of the June indictment. Those charged in these counts, including Jayich and Macht, were found not guilty. But the April 28th incident was set out as one of the "criminal violations" committed by the defendants in furtherance of the conspiracy and the only "criminal violation" naming Jayich and Macht (and also Chacon and Rico).
The considerations which led the trial judge to grant a judgment of acquittal non obstante veredicto to Chacon and Rico apply with equal force to Jayich and Macht. We find the evidence adduced at the trial to be insufficient to sustain the convictions of Jayich and Macht under Count 2 of the June 29, 1972, indictment.
As to the Count 2 conspiracy itself, the government failed to prove any separate conspiracy.
Although 18 U.S.C. § 1962(c) is rescued from ex post facto invalidity because the statute requires that at least one act of "racketeering activity" occur after the effective date of the statute, 10 no solid evidence exists that any such overt act did occur with reference to the Count 2 conspiracy.
The first series of post-1970 acts on which the government relies are the payments from members of the unloading business to members of the union. The government relies on these same payments to support also the Count 1 conspiracy. This raises a preliminary question whether Counts 1 and 2 charge separate conspiracies, and, if so, what the difference is.
Count 1 11 lists seven crimes committed in furtherance of that conspiracy. Count 2 12 lists six of these same crimes to support that conspiracy. The implication arises that the government is attempting to make two conspiracies out of one so as to increase each defendant's liability. But even when a conspiracy contemplates several crimes, only one conspiracy can be charged and punished. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). 13 The conspiracy to take money from the various unloading businesses was a single conspiracy requiring participation in the affairs of both Pronto and Local 626.
Even if one accepts the government's position that there were separate conspiracies a joint conspiracy between Pronto and Local 626 members to extort payments from unloading companies and a separate conspiracy to extort payments from the meat packers payments from Pronto to Local 626 cannot support the second conspiracy. Such payments between conspirators are irrelevant to the asserted purpose of the Count 2 conspiracy.
The government also relies on a second group of post-1970 acts to support the Count 2 conspiracy. These acts grew out of a dispute between Local 626 and a Mr. Ruchti, the owner of a meat delivery business. The union claimed that Ruchti owed it money. Galea, Jayich, and Macht attempted to collect this money by picketing and interfering...
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