558 F.2d 1102 (2nd Cir. 1977), 1282, United States v. McGrath

Docket Nº:1282, Docket 77-1064.
Citation:558 F.2d 1102
Party Name:UNITED STATES of America, Appellee, v. John McGRATH, Defendant-Appellant.
Case Date:July 19, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1102

558 F.2d 1102 (2nd Cir. 1977)

UNITED STATES of America, Appellee,


John McGRATH, Defendant-Appellant.

No. 1282, Docket 77-1064.

United States Court of Appeals, Second Circuit

July 19, 1977

Argued May 13, 1977.

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Leonard J. Meiselman, Mineola, N.Y. (John J. Reilly, Meiselman, Boland, Reilly & Pittoni, Mineola, N.Y., of counsel), for appellant.

Stanley A. Teitler, Asst. U. S. Atty., E. D. N.Y., Brooklyn, N.Y. (David G. Trager, U. S. Atty., Bernard J. Fried, Stanley Marcus, Asst. U. S. Attys., E. D. N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before CLARK, Associate Justice, [*] and LUMBARD and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

After a trial in the Eastern District of New York, before Judge Bramwell and a jury, appellant was convicted of three violations of the Hobbs Act, 18 U.S.C. § 1951, five counts of tax evasion, 26 U.S.C. § 7201, and five counts of filing false tax returns, 26 U.S.C. § 7206. He received concurrent sentences of a year and a day on the three Hobbs Act convictions. Judge Bramwell also imposed a fine of $5,000, and assessed McGrath the costs of the prosecution, $8,662.75. On this appeal, McGrath challenges the sufficiency of the indictment, the joinder of offenses and a number of Judge Bramwell's evidentiary rulings.

We affirm.

The Facts.

From the mid-1950s until his retirement in 1974, John McGrath was the Park Maintenance Supervisor of the Long Island State Park Commission, an agency of the State of New York. The Commission exercises jurisdiction over the state parks located on Long Island, as well as the Southern State Parkway, a major east-west highway on Long Island. 1

As part of his official duties, McGrath awarded contracts to tow truck operators to remove disabled cars from the Southern State Parkway. The indictment charged McGrath with extorting illegal payments from five tow truck operators in return for parkway towing contracts, in violation of the Hobbs Act. 2

McGrath did not report the income he received from his extortionate venture, thereby providing a basis for charges of tax evasion and filing false and fraudulent returns. In addition, the government proved that McGrath failed to report interest income on several bank accounts, capital gains and mortgage payments received from a purchase money mortgage on the sale of a house, as well as rental income from two houses on Fire Island. After McGrath was informed that he was the subject of an investigation by the Internal Revenue Service, but before indictment, he filed "amended" tax returns for every year from 1969 to 1973. These showed the income from his real estate investments and bank accounts, but not the proceeds of his extortion. The jury convicted him on the tax evasion and false filing counts and on three extortion counts. McGrath was acquitted on the remaining two extortion counts.

The Indictment.

The indictment, as originally filed, charged McGrath with extorting payments in his capacity as an employee of the "Long Island State Parks and Recreation Commission."

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Since 1972, that has been the official name of McGrath's employer. Before that time, it was officially known as the "Long Island State Park Commission." There is no dispute that McGrath's duties and authority were the same before and after the change in official titles.

After the jury was empanelled and both sides made opening statements, McGrath moved to dismiss the indictment because of the variation in the names of the Commission. Judge Bramwell then adjourned the trial. During the adjournment, the government reconvened the Grand Jury, which amended the indictment to show the correct official names of the Commission. The trial was then resumed. The major thrust of McGrath's appeal is his contention that the Grand Jury was powerless to make the change.

Innumerable cases have allowed amendment by the Court or the prosecutor without Grand Jury action, under circumstances similar to those of the instant case. See e.g., United States v. Cirami, 510 F.2d 69 (2d Cir.), cert. denied, 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 451 (1975) (appellants, rather than corporation of which they were officers, stated to owe tax); Heisler v...

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