817 F.2d 947 (2nd Cir. 1987), 409, United States v. Capo

Docket Nº:409, 421, Dockets 85-1290, 85-1291.
Citation:817 F.2d 947
Party Name:UNITED STATES of America, Appellee, v. Robert CAPO, Tadeusz Snacki, a/k/a
Case Date:April 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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817 F.2d 947 (2nd Cir. 1987)

UNITED STATES of America, Appellee,

v.

Robert CAPO, Tadeusz Snacki, a/k/a "Ted Snacki", and Walter

Snacki, Defendants-Appellants.

Nos. 409, 421, Dockets 85-1290, 85-1291.

United States Court of Appeals, Second Circuit

April 24, 1987

Argued Nov. 10, 1986.

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Ronald S. Carlisi, Rochester, N.Y., for defendant-appellant Capo.

Norman Palmiere, Rochester, N.Y. (Palmiere & Pellegrino, P.C., of counsel), for defendant-appellant Tadeusz Snacki.

Rosemary G. Roberts, Rochester, N.Y., Asst. U.S. Atty., W.D.N.Y. (Roger P. Williams, U.S. Atty., W.D.N.Y., of counsel), for appellee.

Before FEINBERG, Chief Judge, KAUFMAN, OAKES, TIMBERS, MESKILL, NEWMAN, KEARSE, CARDAMONE, PIERCE, WINTER, PRATT, MINER, ALTIMARI, and MAHONEY, Circuit Judges.

ON REHEARING IN BANC

GEORGE C. PRATT, Circuit Judge, joined by FEINBERG, Chief Judge, IRVING R. KAUFMAN, OAKES, MESKILL, JON O. NEWMAN, CARDAMONE, PIERCE, WINTER, MINER, ALTIMARI, and MAHONEY, Circuit Judges:

Defendants were convicted in the United States District Court for the Western District of New York, Michael A. Telesca, Judge, for conspiring to violate and for substantive violations of the Hobbs Act, 18 U.S.C. Sec. 1951, as well as for various false statement, witness tampering, and obstruction of justice counts. A divided panel of this court affirmed those convictions, United States v. Capo, 791 F.2d 1054 (2d Cir.1986), and, following a poll of the active judges of the court, the Hobbs Act convictions were reheard in banc. The point of demarcation between the panel majority and dissent concerned the applicability of the Hobbs Act to the facts of this case. While the panel majority held that the underlying job-selling scheme fell within the bounds of traditional Hobbs Act jurisprudence, it is the majority position upon rehearing that, without sufficient evidence to establish the requisite elements of extortion by wrongful use of fear of economic loss, defendants were improperly convicted under the federal extortion statute.

While this rehearing of the Hobbs Act counts bears little practical consequence for defendants--they remain convicted of the false statement, witness tampering, and obstruction of justice counts, for which their sentences are concurrent with their Hobbs Act sentences--we nonetheless must exercise our responsibility to ensure that federal criminal statutes are not enforced in a manner inconsistent with congressional intent. Because congress did not intend federal intervention in this factual setting, we vacate the decision of the panel majority on the Hobbs Act counts, and reverse defendants' Hobbs Act convictions.

BACKGROUND

The Eastman Kodak Company ("Kodak"), which has its headquarters in Rochester, New York, is a major economic force in upstate New York. The job-selling scheme underlying these convictions took place at Kodak's Elmgrove plant, one of the company's primary manufacturing facilities, where approximately 13,000 people were employed at all times relevant to this appeal. Early in 1981, John Baron, an unindicted co-conspirator, was hired as an employment counselor in Kodak's Industrial Relations Department. One of Baron's first responsibilities was to hire a group of

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permanent production employees. As directed, Baron initially hired approximately 1,400 people who had previously been laid off at Kodak, after which he followed standard Kodak procedure for hiring the remainder of the needed permanent production employees.

The primary tool at a Kodak employment counselor's disposal consisted of an accumulated file containing approximately 55,000 applications. The hiring process was designed so that when a job requisition was filed, the counselor would review the relevant applications and hire, based upon, among other considerations, prior experience, prior service with Kodak, and length of time the application had been on file. In reality, however, the hiring that gave rise to these prosecutions did not, and probably could not, follow this carefully considered format; in addition to the turnover caused by normal attrition in a large work force, employment counselors at Kodak were called upon episodically to conduct "supplemental" hirings.

In 1982, Kodak announced the supplemental hiring of approximately 2,300 people needed to commence production of the company's new "disc camera". According to Baron, the standard application system, which at its best was inefficient, collapsed under the dramatic demand to hire these new, temporary employees immediately. Baron's boss, Mr. Seils, testified that, in addition to the standard application system, Kodak had long used an internal job referral system through which department heads and other supervisors would submit lists of names of prospective applicants they wished to see hired. Seils further testified that, in the rush to satisfy the hiring needs created by the disc camera production, the referral system became the primary means of hiring, as it was far more efficient than the standard application mechanism. Indeed, even with the referral system, Baron characterized the disc-camera supplemental hiring as "out of control", indicating that people could have walked off the street without previously applying and nevertheless been hired.

It was in this hectic setting of the disc-camera supplemental hiring that the instant job-selling scheme took hold. Baron's friend, Kodak supervisor Stanford Forte, Sr., referred several people to Baron, including defendant Tadeusz Snacki ("Ted"), and Ted's wife and nephew. For hiring them, Baron was rewarded with a leather coat and a color TV. Thereafter, Forte gave Baron a VCR and asked Baron to hire three other people. When Baron again complied, Forte shared $1,500 with Baron that Forte had received from the three referrals. The following month, Forte prevailed upon Ted Snacki to help Baron move, and during the move, Baron agreed to hire Ted's son. One month later, Ted, who had not known Baron before Forte introduced them, gave Baron a wedding gift of $400.

At the same time these deals were being made, the job-peddling scheme spread to others. Ted's brother, Walter Snacki ("Walter"), an employee of another company, Rochester Products, embarked upon a string of referrals for money, all of which resulted in Kodak employment for the payors. Walter passed the word to a number of co-workers at Rochester Products that he could assure that they or their relatives or friends would be hired at Kodak for the payment of $500, or, in one case, of $600.

For example, Walter was overheard by a co-worker, Josephine Kane, discussing with another fellow employee his connection at Kodak. Kane asked Walter if he would get her husband, William, a job. Walter told her that he would see, and sometime later told Kane he could do it for $500. Kane gave Walter her husband's application, on which she had been instructed to leave the date blank, but said she would not pay until William had been hired. Shortly thereafter, her husband was offered a job. Even though William Kane turned down that first offer of employment, Walter was able to secure for him a second offer some months later after William had reconsidered, although on that occasion Walter demanded that the money be paid in advance.

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The exchange upon which the panel majority placed greatest emphasis transpired between Walter and Paul Kelso, another Rochester Products co-worker and Walter's friend. Kelso wanted to separate from his wife, Marjorie Ann, but with two children and his wife unemployed, it was not then economically feasible. Although Marjorie Ann previously had applied to Kodak on her own, she had not been successful. Walter informed...

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