U.S. v. Delano

• Citation: 1995 WL 299867,55 F.3d 720
• Decision Date: 16 May 1995
• Docket Number: No. 303,D,303
• Parties: UNITED STATES of America, Appellee, v. Robert E. DELANO, Defendant-Appellant. ocket 93-1395.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 720

55 F.3d 720

UNITED STATES of America, Appellee, v. Robert E. DELANO, Defendant-Appellant.

No. 303, Docket 93-1395.

United States Court of Appeals, Second Circuit.

Argued Nov. 2, 1994.

Decided May 16, 1995.

Laurie Boreanaz Carra, Buffalo, NY (Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, of counsel), for appellant.

Russell P. Buscaglia, Asst. U.S. Atty., W.D.N.Y., Buffalo, NY (Patrick H. NeMoyer, U.S. Atty. for W.D.N.Y., Senta Barry Siuda, Asst. U.S. Atty., W.D.N.Y., of counsel), for appellee.

Before: MESKILL, WINTER and MAHONEY, Circuit Judges.

MESKILL, Circuit Judge:

Appellant Robert Delano appeals from a judgment of conviction of the United States District Court for the Western District of New York, Arcara, J. The jury convicted Delano on five counts of a multiple count indictment which principally alleged that Delano used his position as Commissioner of the Buffalo Parks Department to secure both the services of his employees and those of a private company under city contract for his own personal benefit. For the reasons set forth below, we affirm in part and reverse in part.

BACKGROUND

A. The Indictment

On May 6, 1991 a grand jury in the Western District of New York returned a ten count superseding indictment against appellant Robert Delano. The charges stemmed from Delano's conduct while he served as Commissioner of the Parks Department of the City of Buffalo (Parks Department), a position he held from his appointment in 1985 until his resignation in 1990. Essentially, the government maintained that Delano had operated the Parks Department as a racketeering Count I of the indictment charged that Delano, along with several other unindicted "co-racketeers," had conducted and participated in the affairs of an enterprise--the Buffalo Parks Department--through a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(c). Count II charged the same individuals with having conspired to conduct and participate in the affairs of the Parks Department through a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(d). As the pattern of racketeering, the indictment detailed seventeen acts of racketeering, all of which alleged either extortion under federal law--the Hobbs Act, 18 U.S.C. Sec. 1951, or larceny by extortion under New York state law. Each predicate act charged an instance in which Delano had forced either Parks Department employees or a company under city contract to provide services outside the scope of their regular or contractual duties. The indictment additionally realleged the predicate acts involving the extortion of the private city contractor separately as substantive Hobbs Act offenses in Counts IV and V.

enterprise, routinely extorting his employees and a private city contractor by forcing them to perform work on private homes and businesses, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961 et seq.

Count III of the indictment charged Delano with the theft of public property, in violation of 18 U.S.C. Sec. 666(a)(1)(A). Specifically, that count listed seventeen episodes in which Delano allegedly misappropriated public property in his care or custody, namely, the labor of the Parks Department employees. The remainder of the indictment was devoted to two charges of mail fraud stemming from Delano's participation in the illegal sale of chlorine and three alleged violations of the Clean Water Act, see 33 U.S.C. Secs. 1311(a), 1319(c)(2), for the illegal dumping of that chemical.

B. The Government's Proof

We view the evidence received at trial in the light most favorable to the government. See United States v. Keats, 937 F.2d 58, 62 (2d Cir.), cert. denied, 502 U.S. 950, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991).

1. The Parks Department Under Delano

The Buffalo Parks Department, comprised of approximately 150 workers, primarily cares for and maintains that city's extensive park system and numerous public recreational facilities. The department is organized into five districts, each headed by a "parks supervisor" who reports solely to the Commissioner. Parks supervisors are given the responsibility of managing the day-to-day operations of their districts, a job that entails determining what work needs to be done and which of the workers assigned to their district will do it. All decisions, however, ultimately require the approval of the Commissioner.

The government established that Delano forced Parks Department employees, through the use of extortionate tactics, to perform work outside the scope of their regular employment duties. Parks Department employees testified that Delano frequently "requested," either directly or through one of the parks supervisors, ¹ that they give up their lunch breaks, weekends, or personal leave days (i.e., sick or vacation days) and use that time to perform a variety of tasks, including landscaping, maintenance and repair work, snow plowing, and trash removal, for various individuals or private businesses. Delano provided the services of his employees as favors to his personal friends or political backers. In exchange these individuals would compensate Delano with cash or other benefits. Not surprisingly, the Parks Department employees received little for their efforts, although occasionally Delano would reward them with "no-show overtime," or overtime pay that the employees did not actually have to earn.

Despite their knowledge that this work was not within the scope of their job descriptions, a parade of Delano's former employees testified that they nonetheless honored Delano's "requests" for fear of being harmed economically. Principally, Delano generated this fear through his ability to control the distribution of overtime hours within the Department. Parks supervisors were required to submit daily lists of those employees who were potential candidates for overtime work to Delano's office for his approval. Delano often removed the names of those employees who previously had refused to perform extracurricular work at his behest--a fact known throughout the Parks Department. Thus, Parks Department employees testified that they feared being deprived of the opportunity to earn overtime pay, an attractive source of extra income.

Additionally, the employees testified that they feared that refusal to follow Delano's instructions would result in reassignment to undesirable jobs within the Department. As Commissioner, Delano had the "final say" on all job assignments. Parks Department employees explained that Delano regularly abused this discretionary authority, transferring those who refused to perform requested work to such mindless tasks as chopping ice and wood by hand or painting trash barrels outdoors in mid-winter regardless of the weather. Parks Department employees testified that this frequent practice also instilled in them a sense of fear and, in their view, left them with little choice but to accede to Delano's demands.

2. Clyde Mays Tree Experts, Inc.

The Parks Department also retained private contractors to assist the Department in providing various services. Beginning in 1984, Clyde Mays Tree Experts, Inc. (CMTE) was awarded a city contract to remove and trim trees located on city-owned property. Under the contract the Parks Department's chief forester, Edwin Drabek, would prepare a list of trees which required CMTE's attention and then submit that list to Commissioner Delano's office for his review and final approval. For each tree removed, CMTE would receive a fixed amount of money determined by the tree's size.

Clyde Mays, owner of CMTE, testified that on two occasions Delano requested, through either Drabek or another Parks Department supervisor, Joseph Staszczyk, that CMTE remove trees that were located on private property, and thus not within the scope of the city contract. With respect to the first incident, Mays testified that in late November 1988 Drabek and Staszczyk separately approached him and "asked me if I would go look at a tree that [Delano] wanted taken down" on property owned by Ralph Degenhart, Buffalo's Police Commissioner. In June 1989 Drabek again solicited the services of CMTE, this time to remove two trees abutting the property of Thomas Greco, a friend of Delano's. Mays testified that he complied with both these requests.

In each instance the requested work was performed despite Mays' understanding that CMTE would not be paid for the work. Indeed, Mays testified that he had no intention of even submitting a voucher or invoice to the Parks Department for payment. ² Mays further testified that he honored Delano's requests to remove the trees for fear that if he failed to do so, Delano would make his contract with the city uneconomical. Specifically, Mays feared that Delano would exercise his authority under the contract and send CMTE to scattered worksites throughout Buffalo, thereby making the contract unprofitable due to high travel expenses. This fear, Mays explained, grew out of a conversation Drabek had initiated with him prior to any of the requests to perform the tree removals. According to Mays, Drabek informed him that Delano was unhappy with CMTE's slow pace in removing trees and, moreover, planned to "make things difficult for [Mays]" if he did not speed up CMTE's performance. Mays testified that he viewed this comment as a veiled threat and, therefore, when he was subsequently asked to look at the trees, he interpreted these requests as commands and acquiesced.

C. The Verdict and Post-Trial Proceedings

Following a three month trial the jury convicted Delano of the racketeering and the racketeering conspiracy charges. The verdict interrogatories for these counts indicated that the jury found Delano guilty of five of the seventeen alleged predicate acts with which he was charged. Specifically, Delano was found to have:

1. Extorted CMTE by forcing the company to remove two trees from the property of Thomas...