726 F.2d 869 (1st Cir. 1984), 83-1154, United States v. Gibson

Docket Nº83-1154.
Citation726 F.2d 869
Party NameUNITED STATES of America, Appellee, v. Paul W. GIBSON, Defendant, Appellant.
Case DateJanuary 30, 1984
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 869

726 F.2d 869 (1st Cir. 1984)

UNITED STATES of America, Appellee,

v.

Paul W. GIBSON, Defendant, Appellant.

No. 83-1154.

United States Court of Appeals, First Circuit

January 30, 1984

Argued Nov. 7, 1983.

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Albert F. Cullen, Jr., Boston, Mass., with whom Robert V. Carr, and Cullen & Wall, Boston, Mass., were on brief, for defendant, appellant.

William C. Bryson, Atty., Dept. of Justice, Washington, D.C., with whom William F. Weld, U.S. Atty., and Diane M. Kottmyer, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief for appellee.

Before CAMPBELL, Chief Judge, ROSENN, [*] Senior Circuit Judge and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Defendant-appellant, Paul W. Gibson, appeals a jury conviction for attempting to obstruct commerce by means of extortion under 18 U.S.C. Sec. 1951(a) (Hobbs Act). 1 Gibson asserts reversible error, raising five issues on appeal: (1) the trial court committed error in denying a motion for judgment of acquittal; (2) there was a constructive amendment to the indictment; (3) the trial court's jury instruction on reasonable doubt; (4) the trial court erred in not giving instructions on the defendant's theory of defense; and (5) defendant was erroneously denied exculpatory evidence relevant to sentencing and punishment.

We affirm.

We review the evidence in the light most favorable to the government. United States v. Morris, 700 F.2d 427, 432 (1st Cir.1983), cert. denied, --- U.S. ----, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983); United States v. Winter, 663 F.2d 1120, 1127 (1st Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983).

During the relevant period, defendant was the business manager of Roofers Local Union 33. The person extorted was Thomas A. Guilderson, co-owner of Advanced Industrial Systems, Inc. (AIS), a Massachusetts roofing company.

In September of 1982 AIS was working on a $129,800 roofing job in Rhode Island; its employees were nonunion. On September 30, Guilderson received a message from his answering service to call defendant at the office of the Roofers Union. Guilderson called defendant, who questioned him as to the size of the Rhode Island job and then told Guilderson that he had "a problem." Defendant said that the business agent for the Providence Roofers Union, Arthur Cramer, was upset because AIS was nonunion. Defendant then offered "to take

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care" of the "problem" for a "consideration." Guilderson said that he was not aware of any problem, that he would think about it and get back to defendant. Defendant insisted that Guilderson call him the next morning with an answer.

Guilderson promptly called his attorney. He then went to the job site and, after consulting with his partner, removed all of the company's valuable tools from the site so as to safeguard them against vandalism. The next morning Guilderson had his wife call the defendant and tell him that he could not call him back until the following Monday, October 4.

On Monday Guilderson met with two FBI agents and agreed to have his conversation with Gibson recorded. The pertinent parts of the conversation are as follows:

Gibson (referring to Cramer): That's right and he wanted (laugh) just to walk in and try to harass ya and stop ya and do whatever the hell he could for the job. OKay.

Gibson: And I said that I could take care of him, perhaps.

Guilderson: So if I say no I say I don't want to do anything about it.

Gibson: (unintell) that he has to do what he has to do.

Guilderson: Then then then Creamer gonna go ahead and do what he thinks he has to do to ah

Gibson: Right ya

Guilderson: To give us a problem

Gibson: Right

Guilderson: But ah but if I deal with you, you can get hm off my back, is that it?

Gibson: Well, you won't deal with me, what you do is deal with him.

Guilderson: Oh, I'll deal with him.

Gibson: Right

Guilderson: Alright so we are, alright so okay

Gibson: (unintel) he doesn't know you and I happen to know you but ya you will deal through me for him ya, probably, I don't know how he would want to handle that.

Further into the conversation, a meeting was arranged for the next day at Linda Mae's Restaurant in Dorchester. When Guilderson asked how much money he should bring, defendant said that Guilderson should make an offer and he would decide if it was enough. Guilderson offered $500. Defendant then put Guilderson on hold and falsely claiming to have Cramer on another line said, "I got him on the other line, can you make it seven and a half?" The amount of $750 was agreed upon. The following exchange then took place:

Guilderson: Well, let me ask you this, is that gonna take care of my problem?

Gibson: That's gonna eliminate it.

Guilderson: It's gonna eliminate my problem.

Gibson: Uh, huh

Guilderson: Alright

Gibson: Do you know what you are doing here?

Guilderson: Do I know what I'm doing?

Gibson: Ya

Guilderson: I don't seem to have much choice here do I?

Gibson: Ya

During the call defendant said that Guilderson could fight but "I don't know how much [disputed word] he can give you." Guilderson testified that the word not faithfully reproduced was "violence." Defendant claims it was "problems." Near the end of the conversation defendant assured Guilderson that he "can guarantee ya the job is free and clear of any problems."

Guilderson wore a concealed recorder for the payoff meeting which took place in defendant's car near the restaurant. There was the following exchange:

Guilderson: Let me ask you a question, all right let me ask you a question all right? You're a good guy and all like that right? You're doin me a favor on this alright?

Gibson: I hope I am.

Guilderson: Well, what I'm saying is

Gibson: That I am as far as that job is

Guilderson: What I'm saying is ahm I don't want to find out that ah you know

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this guy didn't get taken care of or whatever. How will I know you know that he isn't

Gibson: The guy ain't gonna come and kiss you and say Tommy

Guilderson: That's not what I'm talking about you know what I mean.

Gibson: The guys taken care of. The guy is taken care of.

Guilderson: Okay.

Toward the end of the encounter Guilderson transferred the $750 to Gibson, and the following transpired:

Guilderson: Somebody ... whoever, that's your business. Okay you want the money? You want to count it. (paper rustling)

Gibson: Nope, I can't fucken trust you I would say "where does Tom live?"

Guilderson: Uhm, uhm you mean if the money wasn't there what? You'd say where do I live?

Gibson: Yeah, I'd say "where does Tom live?" or "let me call him up and find out where the hell he lives" and what have you.

Guilderson: Uh, uh

When Guilderson again expressed concern about the Rhode Island job, the defendant said: "Let me tell you something there's nothin going to happen to that, okay? When I said to you this morning I guarantee this job, I can't guarantee you know six months down the road or three months down the road there."

After Guilderson left the car, defendant was arrested.

The Motion for Judgment of Acquittal

Our review of the district court's decision to deny a motion for acquittal is quite limited; we must affirm unless the evidence, viewed in the light most favorable to the government, could not have persuaded any rational trier of fact of the defendant's guilt beyond a reasonable doubt. United States v. Cincotta, 689 F.2d 238, 241 (1st Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982). See also United States v. Weisz, 718 F.2d 413, 438 (D.C.Cir.1983).

Defendant argues that his use of the word "problem(s)" in his conversations with Guilderson meant picketing or other legal union activities. It is well-known that picketing may engender violence to persons and to property. It is for this reason that the Hobbs Act excludes from its reach "the use of force to achieve legitimate labor ends." United States v. Enmons, 410 U.S. 396, 401, 93 S.Ct. 1007, 1010, 35 L.Ed.2d 379 (1973); United States v. Jacobs, 543 F.2d 18, 21 (7th Cir.1976), cert. denied, 431 U.S. 929, 97 S.Ct. 2632, 53 L.Ed.2d 244 (1977); United States v. Quinn, 514 F.2d 1250, 1257 (5th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1976).

If the reference to "problem" in the first conversation had not been coupled with a pointed suggestion that the "problem" could be solved for a consideration, there might be some force to defendant's contention. Any payment received by Gibson for taking care of the "problem" could not have been demanded in pursuit of a legitimate labor objective. See United States v. Quinn, 514 F.2d at 1258-59.

Guilderson understood Gibson's offer to solve his company's "problem" for a consideration as a threat of violence to himself and to company property. He promptly moved to meet his perceived threat of vandalism by removing or securing all of the valuable tools at the job site. We think that the jury could properly infer that Gibson's use of the word "problem" plus his demand for a payoff to solve the problem was deliberately calculated to raise the spectre of violence.

The subsequent recorded conversations also suggested that unless a payoff was made violence was a definite possibility. Defendant's language certainly does not convey the message that the "problem" to be solved was picketing. Defendant never used the word "picketing." The word "problem(s)," albeit vague, has an ominous connotation. The connotation of violence was heightened, not dispelled, by the subsequent conversations.

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The district court's denial of the defendant's motion for acquittal was soundly based.

Constructive Amendment to the Indictment

The question is whether the trial court's instructions to the jury so differed from the indictment as to constructively amend it. To prevail on a constructive amendment to the indictment theory, appellant must show: (1) that he was tried on a charge different from the one in the indictment; or (2) that he...

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