U.S. v. Rastelli

Decision Date18 March 1977
Docket NumberNos. 530,D,818,539,s. 530
Citation551 F.2d 902
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Philip RASTELLI et al., Defendants-Appellants. ockets 76-1350, 76-1408, and 76-1410.
CourtU.S. Court of Appeals — Second Circuit

Mervyn Hamburg, Atty., U. S. Dept. of Justice, Washington, D. C. (David G. Trager, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y., on the brief), for plaintiff-appellee.

William Sonenshine, Brooklyn, N. Y. (Evseroff & Sonenshine, Brooklyn, N. Y., Ernest J. Peace, Mineola, N. Y., on the brief), for Petrole and De Stefano.

Roy M. Cohn, New York City (Saxe, Bacon & Bolan, New York City, John F. Lang, Ronald F. Poepplein, New York City, of counsel), for Rastelli.

Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from judgments of conviction entered after an eleven-day jury trial before the Hon. Thomas C. Platt, Jr., in the United States District Court for the Eastern District of New York. Appellants Carl Gary Petrole, Anthony De Stefano and Philip Rastelli were convicted on April 23, 1976 of one count of restraining trade in violation of the Sherman Act, 15 U.S.C. § 1, one count of conspiracy to interfere with commerce by extortion, 18 U.S.C. §§ 1951 and 2, and two counts of interfering with commerce by extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. De Stefano was also convicted on an additional count of violating 18 U.S.C. § 1951. The judgments of conviction are affirmed.

The appellants' racketeering activities were centered in the mobile lunch truck business. The industry consists of individuals who operate trucks especially designed for dispensing beverages and foods. Most of the operators' sales take place at locations such as factories, where a large number of workers can be served during work breaks. The drivers develop their routes independently and when a particular location is considered highly desirable the driver regularly providing the service will often be faced with competition from other lunch trucks. This practice known as "bumping" may lead to a price war between the two mobile food stands. As a result, one of the competitors may relinquish his spot or both may find that they are able to share the stop. The lunch truck operators either supplied themselves or purchased their supplies from commissaries which aggressively competed for their business.

In 1966, largely through the efforts of Petrole, the Workman's Mobile Lunch Association was created and received its corporate charter from the State of New York. Petrole became its president. In its first year there were 48 members who paid an initial membership fee and weekly dues, which started at three dollars per truck, and were later increased to as much as $10. Although at association meetings there was some discussion of such matters as discount purchasing, group insurance, and discounts on charges for repairing the trucks, none of these benefits ever materialized.

Petrole, after serving as president for approximately two years, resigned and was replaced by Louis Rastelli, 1 the nephew of appellant Philip Rastelli. In 1970 De Stefano was elected secretary-treasurer of the association. Philip Rastelli has no formal relationship with the trade group. The government, however, established that he indirectly controlled the association and shared in the proceeds that were extorted from the suppliers of the lunchmen by Petrole and other association officials. The defendants were engaged in classic racketeering activities. Kickbacks, computed as a percentage of the amount of purchases made by association members, were demanded from suppliers. It was understood that failure to make these payments would result in the loss of member customers. In addition, through persuasive demonstrations of force and implicit threats of violence, appellants convinced unfavored lunch truck operators to cease bumping at lucrative stops and to surrender these profitable locations to operators protected by the appellants.

I

The appellants argue that there was insufficient evidence to sustain their convictions on the Hobbs Act counts. In order to prove such violations the government must establish extortion. 2 The defendants' conduct in this case in intentionally creating in their victims a fear of economic loss if the victims failed to "kickback" constituted extortion. United States v. Kramer, 355 F.2d 891, 897 (7th Cir.), cert. granted in part and remanded for resentence, 384 U.S. 100, 86 S.Ct. 1366, 16 L.Ed.2d 396 (1966); United States v. Postma, 242 F.2d 488, 492 (2d Cir.), cert. denied, 354 U.S. 922, 77 S.Ct. 1380, 1 L.Ed.2d 1436 (1957). Appellants contend that they did not place the victims in fear because the relationship between the defendants and their victims was amicable. However, "fear may be present even if confrontations between the victim and the alleged extorter appear friendly". United States v. DeMet, 486 F.2d 816, 820 (7th Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). "The fact that relations between the victims and the extorters were often cordial is not inconsistent with extortion. Knowing that they were at the mercy of the (defendants), it is a fair inference that the victims felt that to save their businesses they had to keep the extorters satisfied." United States v. Hyde, 448 F.2d 815, 834 (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972).

Since there was evidence to support the jury finding that fear was present and since the court's charge was clear that "the mere voluntary payment of money or delivery of property unaccompanied by any fear of economic loss would not constitute extortion" we find the argument of appellants unpersuasive. Essentially appellants are attempting to reargue the evidence, urging upon us as facts what are basically inferences favorable to the defendants but which were rejected by a properly instructed jury. It is basic that we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Under this test appellants must fail. The issue is not whether the defendants actually had the power to select a caterer from whom lunch truck operators would secure their supplies but rather whether the victims were in reasonable fear that the defendants possessed such power and would use it if their demands were not met. United States v. Emalfarb, 484 F.2d 787, 789 (7th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973); United States v. Varlack, 225 F.2d 665, 668 (2d Cir. 1955). The jury could fairly infer that the victims here paid and obeyed the association out of reasonable fear of economic or physical harm. United States v. Gill,490 F.2d 233, 237 (7th Cir. 1973), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974); United States v. DeMet, supra, 486 F.2d at 820.

II

Rastelli raises only one point that merits response. He argues that the district court's failure to grant a continuance upon a substitution of counsel representing him was an abuse of its discretion and denied him a fair trial. We find that Judge Platt's refusal was within the wide bounds of a trial judge's discretion. Thus appellant is not entitled to the relief he seeks and his conviction is affirmed.

The facts surrounding Rastelli's request for a continuance are extensively laid out in this circuit's opinion in In re Sutter, 543 F.2d 1030 (2d Cir. 1976) and will only be summarized here. 3 Rastelli, shortly after being indicted on March 5, 1975, retained his first counsel, John Sutter. The case was adjourned several times and on January 5, 1976, with the consent of the defense and the government, the court set March 29, 1976 as the trial date. On February 28, Sutter undertook the representation of another client in a state homicide trial that began on March 8, 1976. This state trial which lasted six weeks came into conflict with Rastelli's scheduled trial date. After being informed that counsel for Rastelli might not be ready for the March 29 trial, Judge Platt called a pre-trial conference on March 19. At this conference attended by an associate of Sutter and a representative of the law firm of Saxe, Bacon &...

To continue reading

Request your trial
17 cases
  • State v. Hamilton
    • United States
    • Supreme Court of Connecticut
    • January 11, 1994
    ......denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Gandy v. Alabama, 569 F.2d 1318, 1324 (5th Cir.1978); United States v. Rastelli, 551 F.2d 902, 905-906 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 115, 54 L.Ed.2d 91 (1977); Sekou v. Warden, supra, 216 Conn. at 686-89, 583 ...242] factors considered); the decision of the Appellate Court in this case affords us the opportunity to clarify that an appellate court should limit its assessment of the reasonableness of the trial court's exercise of its discretion ......
  • US v. Bonanno Organized Crime Family
    • United States
    • U.S. District Court — Eastern District of New York
    • March 24, 1988
    ...as set forth in the indictment and judgment and commitment order submitted as Exhibit C to the Amended Complaint. See United States v. Rastelli, 551 F.2d 902 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 115, 54 L.Ed.2d 91 (1977).14 Paragraph 31 also alleges that the crimes for which Rast......
  • U.S. v. Salerno
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 1989
    ...States v. Daley, 564 F.2d 645, 650 (2d Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1508, 55 L.Ed.2d 530 (1978); United States v. Rastelli, 551 F.2d 902, 904-05 (2d Cir.), cert. denied, 434 U.S 831, 98 S.Ct. 115, 54 L.Ed.2d 91 (1977); and United States v. Tolub, 309 F.2d 286, 289 (2d App......
  • U.S. v. Capo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 30, 1986
    ...had a "reasonable fear that the defendants possessed such power and would use it if their demands were not met." United States v. Rastelli, 551 F.2d 902, 905 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 115, 54 L.Ed.2d 91 In arguing that the evidence was insufficient to prove that those ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT