U.S. v. Bucci, 87-1271

Decision Date08 October 1987
Docket NumberNo. 87-1271,87-1271
Citation839 F.2d 825
PartiesUNITED STATES of America, Appellee, v. Anthony J. BUCCI, Sr. and Ronald H. Glantz, Defendants, Appellants. . Heard
CourtU.S. Court of Appeals — First Circuit

Robert B. Mann, Providence, R.I., for appellant Ronald H. Glantz.

Anthony J. Bucci, Jr., with whom Bucci Law Offices, Providence, R.I., was on brief, for appellant Anthony J. Bucci, Sr.

John M. Campbell, Dept. of Justice, Public Integrity Section, Criminal Div., with whom William F. Weld, Asst. Atty. Gen., Criminal Div., Washington, D.C., Lincoln C. Almond, U.S. Atty., and Anthony C. DiGioia, Asst. U.S. Atty., Providence, R.I., were on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

On October 25, 1985, a grand jury returned an indictment charging defendants Ronald Glantz and Anthony J. Bucci with conspiracy to commit extortion (Count I) and extortion (Count II) in violation of 18 U.S.C. Sec. 1951 (Hobbs Act). 1 At the time of the alleged extortion, Glantz was City Solicitor of Providence, and Bucci was an attorney in private practice. Bucci's brother-in-law, Clement Cesaro, was then director of the Providence Department of Public Works, a position he obtained with Bucci's assistance. After a three-week trial, a jury found appellants guilty of extorting $77,350 from James Notarantonio in exchange for a contract from the City of Providence.

In another appeal from this same conviction, United States v. Glantz, 810 F.2d 316 (1st Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987), we reversed the district court's order granting defendants a new trial. The court had allowed a new trial because it believed that the prosecutor's closing argument had improperly influenced the jury. We concluded that the "substantially appropriate nature of the prosecutor's comments, the repeated correction of any possible deficiencies, and the strong government case all [led] to the conclusion that the district court abused its discretion in taking the rare step of ordering a new trial." Id. at 324. In this appeal, appellants challenge their conviction on different grounds. They claim that the district court erred by denying their motion for: (1) judgment of acquittal for failure by the government to prove a Hobbs Act violation; and (2) mistrial for impermissible use by the government of peremptory challenges. Bucci also claims that the district court erred in denying his motion for dismissal of the indictment for abuse of the grand jury process. Appellants finally contend that the district court erred in imposing the sentence. We affirm the conviction, but remand for resentencing.

FACTS

Notarantonio testified as follows. In early 1979, Glantz, whom Notarantonio knew to be the City Solicitor and an aide to the Mayor, called him to ask whether he would be interested in leasing garbage trucks to the City of Providence. Notarantonio agreed and made plans for acquiring the trucks. At some point in late March or early April, Glantz summoned Notarantonio to drive with him to a meeting in Boston. Just before arriving at Anthony's Pier 4 Restaurant, where the meeting was to take place, Glantz informed Notarantonio that they would be meeting with Anthony Bucci, whom Notarantonio knew of as a powerful political leader in Providence. Once the three men were seated together in the restaurant, Glantz informed Notarantonio that Bucci could "put this deal together with the garbage trucks." Bucci agreed, but added that he wanted "twenty percent." When Notarantonio objected, Bucci assured him that "money [would be] no object" because Cesaro, the highway director, was his brother-in-law. Notarantonio testified that it was his understanding at the close of the meeting that if he refused to agree to pay appellants twenty percent, "there would [be] no deal." The next day, Notarantonio telephoned Glantz to tell him that he "could put the

package together." Glantz responded by informing Notarantonio of the price that the city would pay for each truck. In the contract that Notarantonio signed with Cesaro on May 10, 1979, Notarantonio agreed to lease the city ten garbage trucks for two years at a monthly cost per vehicle of $2,100, the exact amount set by Glantz on the telephone weeks before. 2 From July 27, 1979 through October 30, 1980, Notarantonio delivered eight checks to appellants. On most occasions he gave them each check soon after receiving payment from the city for the lease of the garbage trucks. 3
THE HOBBS ACT VIOLATION

Appellants assert that the district court erred in not granting their motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. 4 First, they contend that the government did not prove a Hobbs Act violation because it did not show that appellants induced payment from Notarantonio through fear of economic loss. Second, they contend that by failing to establish that they induced the last payment--arguably the only one made within the statute of limitations--through fear of economic loss and under color of official right, the government failed to prove a Hobbs Act violation within the statute of limitations. Finally, they argue that the government failed to show that appellants' conduct affected interstate commerce within the meaning of the Act. As we address each of these arguments, we will consider the evidence as a whole in the light most favorable to the government to determine whether a rational trier of fact could have found appellants' guilt beyond a reasonable doubt. See United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983).

The Hobbs Act prohibits extortion affecting interstate commerce. 5 By "extortion" the Act means "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. Sec. 1951(b)(2) (1982). Like other circuits, we have interpreted this definition in the disjunctive, finding that the prosecution can establish a violation by showing that a defendant induced payment either through the use of actual or threatened force, violence, or fear, or under color of official right. See United States v. Kelly, 722 F.2d 873, 875 (1st Cir.1983), cert. denied, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984). Moreover, we have clarified that "fear" can mean the "fear of economic loss," United States v. Hathaway,

34 F.2d 386, 394 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976), including "the possibility of lost business opportunities...." Id. at 396
The Inducement for Payment

Notarantonio's testimony provided more than sufficient evidence from which the jury could conclude that appellants conspired to induce and did induce the payment from Notarantonio both through fear of economic loss and under color of official right. Although it is true that neither Glantz nor Bucci specifically threatened Notarantonio with loss of the potential contract, the government need not establish that they actually issued such a threat. Its burden is satisfied if it can show that the victim believed that economic loss would result from his or her failure to comply with the alleged extortionist's terms, and that the circumstances surrounding this conduct rendered that fear reasonable. See United States v. Billups, 692 F.2d 320, 330 (4th Cir.1982), cert. denied, 464 U.S. 820, 104 S.Ct. 84, 78 L.Ed.2d 93 (1983); see also United States v. Lisinski, 728 F.2d 887, 891 (7th Cir.1984); Hathaway, 534 F.2d at 395. The victim, in short, must have understood the defendant's conduct as an implied threat.

In this case, the strongest proof that Notarantonio understood appellants' conduct as an implied threat comes from Notarantonio himself. He testified that appellants communicated to him during the meeting that he would not be awarded the contract if he refused to agree to pay them twenty percent of it. From this, the jury could conclude that Notarantonio feared the possibility of losing an important business opportunity. See Hathaway, 534 F.2d at 394, 396. The jury could further conclude that Notarantonio feared the loss not only of future income from contract payments, but income already invested in a number of the trucks by the date of the meeting. As he bluntly put it: "it was either do it or forget it.... [and] I already had trucks purchased." Finally, the jury could conclude that Notarantonio feared that if he stopped making kickbacks for the duration of the contract, he would stop receiving payments from the city. See United States v. Swift, 732 F.2d 878, 879 (11th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985).

Notarantonio also testified to the reasonableness of his belief after the meeting that appellants could carry through on their implied threat to deny him the contract. He knew that as head of the city's legal department and aide to the Mayor, Glantz "could get [him] out" as easily as "he got [him] in." He also knew that Bucci was a powerful political leader in Providence. And he learned during the meeting that Bucci had particular influence over the contract award in this case because Cesaro, the head of the department that would be leasing the trucks, was Bucci's brother-in-law. It is not important, as Glantz and Bucci suggest, that neither of them directly controlled the awarding of contracts. Rather, the government need only show as it did that Notarantonio held, and appellants exploited, a reasonable belief that these two men--City Solicitor and aide to the Mayor, on the one hand, and city political leader and brother-in-law of the head of the Department of Public Works, on the other--had the power to determine whether he would receive the contract award and subsequent payments under it. See United States v. Mazzei, 521 F.2d...

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