Battaglia v. United States

• Decision Date: 04 October 1967
• Docket Number: No. 21784.,21784.
• Citation: 383 F.2d 303
• Parties: Charles Joseph BATTAGLIA, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.2d 303 (1967)

Charles Joseph BATTAGLIA, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 21784.

United States Court of Appeals Ninth Circuit.

October 4, 1967.

Albert J. Krieger, Robert Kasanof, New York City, for appellant.

Joseph Corey, Sp. Atty., Dept. of Justice, Washington, D. C., Edward E. Davis, U. S. Atty., Tucson, Ariz., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and MERRILL and KOELSCH, Circuit Judges.

MADDEN, Judge:

Battaglia, who will be hereinafter sometimes referred to as the defendant, appeals from his conviction on January 20, 1967, of a violation of § 1951 of Title 18, United States Code, the statute known as the Hobbs Act.¹ He had been indicted, together with Spinelli and Estes, on March 5, 1965, on a charge of having interfered with interstate commerce by having, by threats, obtained from one Greenwell space in a bowling alley operated by Greenwell for a coin-operated pool table and a share of the profits from its operation. Spinelli and Estes were tried separately from Battaglia and were acquitted on December 9, 1965. Battaglia obtained five continuances on account of illness. His trial began on January 19, 1967, and he was convicted on January 20.

Battaglia's enterprise, Tucson Vending Co., was engaged in placing vending machines, pinball machines and other such equipment in places such as bowling alleys under arrangements with proprietors to share the profits from the machines. In June, 1963, such an arrangement between Battaglia and Greenwell was initiated. Some machines were installed and proved profitable. Battaglia agreed with Greenwell that he would indemnify Greenwell against any liability of Greenwell to another company, Canteen, with which Greenwell had a contract about a cigarette vending machine, and Greenwell then agreed to let Battaglia install additional machines, but refused to sign an exclusive contract with Battaglia until the expiration of the Canteen contract.

One Gumbin was the lessee from Greenwell of the cocktail lounge in the premises of Greenwell's bowling alley. A coin-operated pool table in Gumbin's cocktail lounge had proved profitable, and Greenwell and Gumbin agreed, in December, 1963, to place another such pool table in the bowling alley, and the table was obtained from a source other than Battaglia's company. A few days later, Battaglia angrily complained to Greenwell that he and Greenwell had an agreement that such machines would be obtained only from Battaglia. Greenwell denied that there was such an agreement. Battaglia reminded Greenwell what had happened to one Serota. They both knew that he had been murdered and his body had been found in the trunk of his automobile. Battaglia said, "You have a very attractive wife. I know which way she goes home, and I'm sure you don't want anything to happen to her, and you don't want anything to happen to your factory."

The argument quieted down. Battaglia offered to buy the offending pool table from Gumbin, Gumbin refused to sell it. Soon thereafter, in the night, the felt on the pool table was slashed. Greenwell telephoned Battaglia and accused Spinelli and Estes, Battaglia's men, of having slashed the table. Battaglia answered, "If you think the slashing of the cover is so bad, how would you like to have a bowling ball through the slate?" The effect of such an occurrence would be serious and almost irreparable damage to a pool table.

Greenwell told Gumbin to remove the pool table from the bowling alley. He replaced it with a table obtained from Battaglia's company.

The parties stipulated that both the pool table which was removed from Greenwell's bowling alley and the table supplied by Battaglia, which replaced it, had been shipped to Tucson, Arizona, from outside that state.

I THE INTERSTATE COMMERCE QUESTION

Battaglia's appeal asserts a failure of proof that there was an obstruction or an effect upon interstate commerce as required by the Hobbs Act. Chief Justice Marshall, in Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 6 L.Ed. 23 (1824), said of the Commerce Power vested in Congress by the Constitution:

"This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Constitution."

In spite of this expansive language of the Chief Justice in Gibbons v. Ogden, the extent of the power of Congress under the commerce clause was extensively litigated and remained unclear until the 1937 decision of the Supreme Court in the case of National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893. The opinion of Chief Justice Hughes in that case validated the power of Congress to regulate any activity which affected interstate commerce. Two years later, in the case of National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 672, 83 L.Ed. 1014, Mr. Justice Stone, in answering Fainblatt's argument that Congress could not regulate activities which had only a small effect on interstate commerce, wrote:

"Examining the Act in the light of its purpose and of the circumstances in which it may be applied, we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which the courts would apply the maxim de minimis."

Since the rendition of the foregoing decisions the only question left for litigation has been, not the question of the constitutional power of Congress, but the question of the intent of Congress to include, or not to include, within the reach of a statute the kind of activity involved in the litigation. In United States v. Stirone, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252, the Court said that the Hobbs Act speaks in "broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference `in any way or degree.'"

The defendant urges that, although the pool table here involved which his alleged extortion caused to be removed from use at Greenwell's bowling alley had been shipped in interstate commerce to a dealer in Tucson before it was acquired and installed by Greenwell in his bowling alley, its interstate journey and ended before it was acquired by Greenwell, and therefore later events relating to it did not affect interstate commerce. In National Labor Relations Board v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279, the Court held to the contrary as to the Labor Relations Act.² In United States v. Stirone, 168 F.Supp. 490, 496, the Court said:

"* * * a deliberate act which tends to prevent articles from being used once they have reached their destination after being shipped in interstate commerce dams up the stream of commerce and delays, obstructs and affects interstate commerce as surely as though the same act had cut off the supply at its source."

We find no error in the district court's interpretation of the Hobbs Act or its application to the facts of this case.

II THE CROSS-EXAMINATION OF MRS. GREENWELL

Mrs. Greenwell was a witness for the prosecution, who by her testimony supported her husband's testimony that he had requested her to drive home after work by a better lighted, though longer, route than she had been using, and to telephone him when she started home; that upon her insistence on knowing the reasons for those requests, he had told her of the defendant's threatening statement about her. The defendant on cross-examination questioned her about her going alone to a dog track and to dances. When the court questioned the materiality of the subject of these questions, counsel said in effect that further questioning might tend to show that Greenwell was moved by jealousy, rather than by fear for his wife resulting from the defendant's threats. The court indicated that it thought the questions were irrelevant, but expressly gave counsel permission to pursue the line of questioning. Counsel then examined about other matters, then returned to the subjects of the dog track and dances, asking the witness whether during the period January, 1964, to April, 1964, she went to the dog track or went dancing. It will be remembered that the trial took place in April, 1967. The witness answered that she did not remember whether she had or had not gone to the dog track or gone dancing during that period.

We see nothing in the defendant's complaint that he was improperly restricted in his cross-examination of Mrs. Greenwell. He was given express permission to pursue the inquiry, and did so. His further questions produced no answers which made further cross-examination promising for him, and he dropped the subject. He urges in his brief that he "quite reasonably * * * in view of the court's evident hostility to the line of questioning, moved to something else rather than risk the ire of the trier of fact." But, having moved to something else, he later made use of the express permission which the court had given him and returned to the same line of cross-examination and, so far as the record shows, exhausted it. In effect he is now urging that once a trial judge has erroneously indicated that he thinks a line of questioning is irrelevant, he has committed reversible and incurable error, even though he immediately thereafter changes his ruling and the line of questioning is followed, without interruption, to its end. We are not willing to adopt such a wasteful and improvident rule.

III THE ELECTRONIC SURVEILLANCE PROBLEM

On January 11, 1967, eight days before the trial began, a Department of Justice attorney disclosed to the court and to counsel for the defense that extensive electronic surveillance of the defendant had...