Cape v. United States

• Decision Date: 06 October 1960
• Docket Number: No. 16471.,16471.
• Citation: 283 F.2d 430
• Parties: Woodrow W. CAPE, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.2d 430 (1960)

Woodrow W. CAPE, Petitioner, v. UNITED STATES of America, Respondent.

No. 16471.

United States Court of Appeals Ninth Circuit.

October 6, 1960.

R. Max Etter, Spokane, Wash., for appellant.

Dale M. Green, U. S. Atty., Spokane, Wash., for appellee.

Before MAGRUDER, HAMLIN and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

This is an appeal by Woodrow W. Cape from a judgment of conviction under the Hobbs Anti-Racketeering Act, 18 U.S. C.A. § 1951. The indictment was in two counts: the first charged appellant with extorting $1,000 from A. J. Curtis and Ben Mapes, agents of certain corporations engaged in pipeline construction in interstate commerce; the second charged him with extortion by attempting to obtain an automobile from A. J. Curtis; both counts alleged that appellant accomplished the extortion with consent of the victims "* * * by wrongful use of actual and threatened force, violence, and fear * * *." The jury acquitted Cape of the second count, but found him guilty of the first; he was sentenced to one year imprisonment. We have jurisdiction under 28 U.S.C.A. §§ 1291 and 1294.

There are two primary grounds for reversal urged on this appeal: (1) that the District Court erred by refusing to grant the appellant's timely motions for judgment of acquittal when the evidence was and is insufficient to support a verdict of guilty, and (2) that the court committed prejudicial error by admitting in evidence a tape recording of a conversation between appellant and A. J. Curtis when portions of it were inaudible and unintelligible.¹

The evidence adduced at the trial shows that appellant was a business agent and employee representative of Local 598, Plumbers and Steamfitters Labor Union (A.F.L.), at Pasco, Washington; he supplied skilled and unskilled laborers to various pipeline construction companies in the area and adjusted labor disputes over working conditions with particular employers. In February, 1956, the Curtis Construction Company through its owner, A. J. Curtis, obtained a contract with Pacific Northwest Pipeline Company to construct a pipeline distribution and connection system for natural gas, linking the cities of Pasco and Kennewick in the State of Washington with Pacific Northwest's interstate pipeline, then under construction, extending from New Mexico throughout the Northwest. Curtis also obtained separate construction contracts for other phases of the pipeline system in Washington as well as Idaho and Colorado; we are concerned here only with the contract in the Pasco-Kennewick area.

To accomplish the pipeline construction, Curtis formed two additional corporations, the C.B.C. Construction Company, Inc., and Cascade Constructors, Inc.; he transported equipment valued in excess of $300,000 from central offices in Casper, Wyoming to the State of Washington. Appellant, as business agent of Local 598, furnished Curtis with the employees required in the "lineup and welders gang"; their job was to lay and weld pipe after a right-of-way and ditch had been cleared.

The heart of the government's case is centered upon the testimony of Curtis and O. F. Bradford, the superintendent in charge of the Pasco-Kennewick project. Curtis testified that he estimated the job would require ten men, five skilled and five unskilled, in the lineup and welders gang, that they would lay 2,000-3,000 feet of pipe per day, and that the project would be completed in 120 days. He further testified, however, that Cape required him to use sixteen men, all skilled, that the crew averaged only 500-700 feet per day, that the job took over six months to complete, and that at one point the corporations were losing $2,500 per day. The total loss finally suffered was $150,000.

The major factor, according to Curtis and Bradford, in causing the slow progress on the job was the inefficiency of the workers. Curtis testified that "they just wouldn't work," and after approximately two weeks of construction, some of them were fired, but Cape informed Curtis that unless these men were rehired no one would work.

Curtis discussed these problems several times with Cape. On one occasion, during the latter part of April, 1956, Curtis stated that he asked Cape what could be done to alleviate the problems he was having; Cape replied that if he received an automobile, Curtis would cease "having troubles" and would be permitted to bring in some of his own specialists to complete the work on the project.

Shortly afterward a meeting was arranged at Curtis' apartment, and at his suggestion, to further discuss the matter; Cape, Curtis and Bradford were present. Curtis had prepared for this meeting by concealing a small wire recording machine, capable of being lodged on his person unnoticed, and proceeded to record the conversation which ensued. Curtis testified, and his recollection is supported by Bradford's testimony, that he again asked Cape what could be done to halt the "slow-ups" and other troubles on the job; Cape again replied that if Curtis bought him an automobile, a "Ford," before the job was half-completed, the trouble would cease. Curtis and Bradford both testified that Cape had explained the troubles other contractors had had: sugar placed in the gas tanks of their vehicles, equipment found in the bottom of Columbia River, tractors blown up, and other machines simply not operating at all. Curtis testified that he agreed to buy the car for Cape because he was fearful of economic loss on the job and loss or damage to his equipment.

Curtis also stated that he had another meeting with Cape at a restaurant called "Frank's Bar and Grill" in Pasco, Washington during the early part of July, 1956. The automobile was discussed again and Cape "wanted something done about it"; in answer to Curtis' inquiry regarding cost, Cape stated that he could purchase an automobile for $3,600. Curtis testified that he agreed to meet Cape at the Black Angus Motel at 4 P.M. on the same day and pay $800 of the total amount; he then obtained the money from his corporation by check, and after cashing it, turned the money over to Cape in front of the Black Angus Motel; no one else was present. Curtis stated that after this payment the progress on the job improved somewhat and he was allowed to employ two or three of his own specialists at the Pasco-Kennewick job site.

The next meeting, according to Curtis, occurred at the American Legion Club in Pasco where Curtis was eating dinner with Ben Mapes, an employee of the company. Cape approached their table and informed Curtis that he needed $200 by the next morning. Curtis stated that he was leaving town but instructed Mapes to obtain the money and give it to Cape. Mapes testified that he arranged to meet Cape at 11:30 A.M. the next morning at Frank's Bar and Grill; at 9:00 A.M. the next day he obtained a $200.00 check from the corporation's "office man", Mr. Bieghle, cashed it, and handed the money to Cape at "Frank's".

Curtis testified that he met Cape again after the job had been completed, sometime in the fall of 1957. Cape had phoned him in Ontario, Oregon, from Casper, Wyoming and stated that he wanted to return the $1,000,² Curtis was then departing for Casper by airplane; when he arrived, Cape was waiting at the airport with one Raymond Ridders, a pipefitter. Cape offered, and Curtis accepted, the money, but Curtis returned $200 to Cape in order to make the return trip home. Curtis at that time signed a statement prepared by Cape to the effect that Cape had not received any personal gain in their dealings.

Cape testified in his own behalf: he denied causing trouble or making threats of any kind; he denied receiving any money from either Curtis or Mapes; he stated that he drank a considerable amount of liquor before and during the meeting in Curtis' apartment and could not remember much of the conversation; he did recall that Curtis had once offered to give him an automobile at Frank's Bar and Grill, and Bradford later mentioned the offer to him, but asserted that nothing further was said or done about it.

There was other testimony on behalf of Cape by three employees of the company, who explained that there were no "slowdowns" on the Pasco-Kennewick project and that the delays were due to striking rock and water mains, as well as the lack of a sufficient ditch to lay the pipeline. This testimony was controverted not only by Curtis and Bradford, but by William E. Hansen, City Manager of Kennewick, who testified that from his observation of the work in the Kennewick area "there would be men standing around, and it looked like the whole job was feather-bedded."

The appellant's first contention raises a question of the sufficiency of the above evidence, which is both direct and circumstantial. We must view this evidence in the light most favorable to the government, including the reasonable inferences to be drawn therefrom. Schino v. United States, 9 Cir., 1954, 209 F.2d 67. We are guided by the following rule:

"The test to be applied on motion for judgment of acquittal in such a case, however, is not whether in the trial court\'s opinion the evidence fails to exclude every hypothesis but that of guilt, but rather whether as a matter of law reasonable minds, as triers of the fact, must be in agreement that reasonable hypotheses other than guilt could be drawn from the evidence. * * * If reasonable minds could find that the evidence excludes every reasonable hypothesis but that of guilt, the question is one of fact and must be submitted to the jury."

Remmer v. United States, 9 Cir., 1953, 205 F.2d 277, 287; see also, Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391.

We believe that from the evidence presented here reasonable minds could exclude every reasonable hypothesis but that of guilt. The evidence was largely testimonial and squarely in conflict; the jury could, as it eventually did, believe the story of extortion as unfolded by the testimony of Curtis and...