U.S. v. Biaggi, s. 892

• Decision Date: 01 August 1988
• Docket Number: D,918,Nos. 892,s. 892
• Citation: 853 F.2d 89
• Parties: 26 Fed. R. Evid. Serv. 414 UNITED STATES of America, Appellee, v. Mario BIAGGI and Meade Esposito, Defendants-Appellants. ockets 87-1484, 87-1501.
• Court: U.S. Court of Appeals — Second Circuit

Page 89

853 F.2d 89

26 Fed. R. Evid. Serv. 414

UNITED STATES of America, Appellee, v. Mario BIAGGI and Meade Esposito, Defendants-Appellants.

Nos. 892, 918, Dockets 87-1484, 87-1501.

United States Court of Appeals Second Circuit.

Argued March 30, 1988.

Decided Aug. 1, 1988.

Edward A. McDonald, U.S. Dept. of Justice, Brooklyn, N.Y. (Andrew J. Maloney,

U.S. Atty., E.D.N.Y., Leonard Michaels, Sp. Atty., Brooklyn, N.Y., on the brief), for appellee

John L. Pollok, New York City (Mark A. Summers, Charles L. Weintraub, Susan C. Wolfe, Mark Baker, Todtman, Hoffman, Epstein, Young, Goldstein, Tunick & Pollok, P.C., New York City, on the brief), for defendant-appellant Mario Biaggi.

Edward Brodsky, New York City (Thomas H. Sear, Robert J.A. Zito, Maria L. Ciampi, Spengler Carlson Gubar Brodsky & Frischling, New York City, on the brief), for defendant-appellant Meade Esposito.

Charles Tiefer, Deputy General Counsel to the Clerk of the House of Representatives, Washington, D.C. (Steven R. Ross, General Counsel to the Clerk, Janina Jaruzelski, Asst. Counsel to the Clerk, Washington, D.C., on the brief), for the Speaker and Bipartisan Leadership Group of the U.S. House of Representatives as amici curiae.

Before TIMBERS, KEARSE, and FRIEDMAN, ^* Circuit Judges.

KEARSE, Circuit Judge:

Defendants Mario Biaggi and Meade Esposito appeal from judgments of conviction entered after a jury trial in the United States District Court for the Eastern District of New York before Jack B. Weinstein, then-Chief Judge. Biaggi was convicted on one count of accepting gratuities for official acts, in violation of 18 U.S.C. Sec. 201(g) (1982) (current version at 18 U.S.C. Sec. 201(c)(1)(B) (Supp. IV 1986)); one count of use of interstate facilities with intent to carry on an unlawful activity, in violation of 18 U.S.C. Sec. 1952 (1982) (the "Travel Act") (since amended by Pub.L. No. 99-570, 100 Stat. 3207-35 (1986)); and one count of obstruction of justice, in violation of 18 U.S.C. Sec. 1503 (1982). Esposito was convicted on one count of giving gratuities, in violation of 18 U.S.C. Sec. 201(f) (1982) (current version at 18 U.S.C. Sec. 201(c)(1)(A) (Supp. IV 1986)); and one count of aiding and abetting Biaggi's violation of the Travel Act, 18 U.S.C. Secs. 1952 and 2 (1982). Biaggi was sentenced to concurrent prison terms of 2- 1/2 years on the obstruction of justice count and a year and a day on the gratuity and Travel Act counts, and was required to pay fines totaling $500,000. Esposito was sentenced to two years' probation, with 500 hours of community service, and was ordered to pay fines totaling $500,000. On appeal, defendants contend that there was insufficient probable cause for the electronic surveillance of Esposito, which led to much of the evidence against the defendants; that the government improperly excluded Italian-Americans from the jury; that Biaggi's acts were not "official act[s]" within the meaning of Sec. 201; that the Travel Act convictions should be overturned on statutory and constitutional grounds; and that the evidence was insufficient to support Biaggi's conviction of obstruction of justice. They also challenge certain of the court's evidentiary rulings. For the reasons below, we reject all of defendants' contentions and affirm the judgments of conviction.

I. BACKGROUND

Biaggi is a 10-term congressman from New York's 19th Congressional District, which includes parts of Bronx and Westchester Counties. Esposito, former chairman of the executive committee of the Kings County, New York Democratic Committee, was, during the relevant period, a principal in an insurance brokerage firm, Serres, Visone and Rice, Inc. ("SVR"), and a director or affiliate of a printing company, Beaumont Offset Corporation ("Beaumont"). Biaggi and Esposito were indicted in a seven-count indictment focusing on Biaggi's efforts in 1984-1986 on behalf of Coastal Dry Dock and Repair Corporation ("Coastal"), a major client of SVR, and on Esposito's arrangement of payments of expenses for vacations in 1984-1986 for Biaggi and Biaggi's friend. The indictment charged, inter alia, that defendants conspired

to arrange these vacations in furtherance of a fraud on the United States (count 1); that the vacations constituted bribes demanded by Biaggi and paid by Esposito (counts 2 and 3); that the vacations constituted unlawful gratuities paid by Esposito and received by Biaggi in return for official acts performed by Biaggi (counts 4 and 5); that Biaggi's use of interstate facilities in furtherance of his receipt of the bribes or gratuities violated the Travel Act and that Esposito's funding arrangements aided and abetted that violation (count 6); and that after being questioned by agents of the Federal Bureau of Investigation ("FBI") with regard to two of his vacation trips, Biaggi sought to obstruct the grand jury investigation into these matters (count 7). Both defendants were acquitted on counts 1, 2, and 3. Biaggi was convicted on counts 5, 6, and 7; Esposito was convicted on counts 4 and 6. The evidence at trial, taken in the light most favorable to the government, revealed the following events.

A. Biaggi's Actions on Behalf of Coastal; the Vacations

Coastal, whose operations were located in the Brooklyn Navy Yard ("Yard") owned by New York City (the "City"), was in the business of repairing and refurbishing vessels of the United States Navy and other departments of the federal government. During the pertinent period, Coastal was SVR's second or third largest client, usually paying SVR more than $200,000 per year in insurance commissions. In general, the more work Coastal had, the larger its insurance premiums and thus the higher the commissions paid to SVR.

In the early 1980s, Coastal began to experience financial difficulties resulting largely from high fixed costs. It paid substantial rent to the Brooklyn Navy Yard Development Corporation ("BNYDC"), a not-for-profit corporation chartered by the City to run the Yard. Coastal also was required to purchase its electricity, steam, and water from BNYDC at rates higher than those it would have been charged had it purchased directly from the utility companies. In 1983, Coastal's utility rates rose, it lost three bids on Navy contracts, and important rent credits expired. Beginning in March of that year, Esposito met with the chairman of BNYDC several times and with the City's deputy mayor to express concern about Coastal's situation; by September 1983, Coastal was a half-million dollars behind in its payments to BNYDC, and the BNYDC chairman threatened to complain to the Navy.

In March 1984, Esposito provided Biaggi with a round-trip airline ticket and a four-day vacation at a villa owned by Beaumont on the island of St. Maarten. Also present on the trip were Esposito and Esposito's partners in SVR and Beaumont. On May 9, 1984, Coastal's executive vice-president Vincent Montanti wrote Biaggi, urging him to assist Coastal in its dispute with BNYDC.

Shortly thereafter, Biaggi called Deputy Mayor Kenneth Lipper to express concern about Coastal's difficulties. In addition, in June 1984, Biaggi wrote Mayor Edward Koch a letter, on House of Representatives ("House") stationery, "on behalf of Coastal," urging the City "to work out some accomodations [sic ]" with regard to Coastal's dispute with BNYDC. Actions by Biaggi's staff on behalf of Coastal were supervised by his congressional administrative assistant.

Biaggi wrote Mayor Koch again in September 1984, this time on the stationery of the House Committee on Merchant Marine and Fisheries. He noted that high utility costs were causing Coastal to lose Navy contracts and stated that he was "eager to be of any assistance in dealing with the Navy." He also suggested, as he had been asked to do by Coastal, that "my presence or the presence of a member of my staff during meetings between the City and Navy might be helpful in demonstrating Congressional interest."

Despite these efforts, Coastal's problems persisted. In October 1984, SVR had to lend Coastal $110,000 to pay overdue insurance premiums.

In mid-1984, Barbara Barlow, Biaggi's friend, had expressed a wish that she and In July 1985, Deputy Mayor Alair Townsend, Lipper's successor, warned Coastal that she would "shut off" its lights if it did not begin to pay its rent and utility arrears to BNYDC. A few days later, Biaggi called her to express concern about Coastal's situation. Biaggi called Townsend again in September 1985 to repeat his concerns and to urge the City to help Coastal.

Biaggi spend a Christmas holiday vacation at the Bonaventure Spa, a health resort near Fort Lauderdale, Florida. The couple planned to stay at the apartment of another friend of Biaggi, and Barlow informed Biaggi that they would need a sponsor to enable them to use the spa's facilities. Biaggi arranged through Esposito to have sponsorship provided by James LaRossa, an attorney who represented Esposito and Beaumont. Biaggi and Barlow participated in the spa's programs, she from December 22, 1984 through January 2, 1985, and he from December 27, 1984 through January 2. Their spa bill totaled $3,228, which was charged to the LaRossa account. LaRossa's law firm paid the bill and was reimbursed by Beaumont. Biaggi's air fare to Florida was paid by the House Committee on Aging.

While Coastal's difficulties with BNYDC continued through late 1985, a new problem arose. The FBI began investigating the company, causing the Navy to scrutinize claims for compensation more closely and to disallow many such claims. This led to a cash flow problem which in turn made Coastal even less competitive for new Navy contracts. In November 1985, these hardships forced Coastal to cancel substantial amounts of insurance previously purchased through SVR.

On the day Coastal canceled those policies, Esposito, who sought to help Coastal by "working all angles," met with Biaggi and Coastal's Vincent Montanti. Within days, Biaggi sought...