U.S. v. Covino

• Decision Date: 13 January 1988
• Docket Number: 278,D,Nos. 179,s. 179
• Parties: UNITED STATES of America, Appellee, Cross-Appellant, v. Alfred COVINO, Defendant-Appellant, Cross-Appellee. ockets 87-1170, 87-1181.
• Court: U.S. Court of Appeals — Second Circuit

Page 65

837 F.2d 65

UNITED STATES of America, Appellee, Cross-Appellant, v. Alfred COVINO, Defendant-Appellant, Cross-Appellee.

Nos. 179, 278, Dockets 87-1170, 87-1181.

United States Court of Appeals Second Circuit.

Argued Sept. 15, 1987.

Decided Jan. 13, 1988.

Bruce A. Green, Asst. U.S. Atty., for the Southern District of New York, New York City (Rudolph W. Giuliani, U.S. Atty. for the Southern District of New York, New York City, Aaron R. Marcu, Asst. U.S. Atty., of counsel), for appellee, cross-appellant.

George J. Koelzer (Clarkson S. Fisher, Jr., Ober, Kaler, Grimes & Shriver, New York City, of counsel), for defendant-appellant, cross-appellee.

Before CARDAMONE, WINTER and MINER, Circuit Judges.

WINTER, Circuit Judge:

Alfred Covino appeals from convictions after a jury trial before Chief Judge Brieant under the Travel Act and for wire fraud. The government cross-appeals from the district court's acquittal after the jury had found Covino guilty of extortion in violation of the Hobbs Act. We affirm the Travel Act conviction, reverse the Hobbs Act acquittal, and reverse the wire fraud conviction.

BACKGROUND

Counts One through Eight of the indictment accused Covino, a NYNEX employee, of extorting money and property from a NYNEX contractor in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (1982). The jury convicted Covino on Counts One through Five and on Count Eight. The district judge, however, directed a judgment of acquittal because he concluded that there was insufficient evidence of a wrongful use of fear to establish a Hobbs Act violation. United States v. Covino, 652 F.Supp. 660, 667-68 (S.D.N.Y.1987).

Counts Nine through Sixteen of the indictment charged Covino with traveling in interstate commerce to promote or facilitate "bribery and related offenses in violation of New York State Penal Law Article 180," in violation of the Travel Act, 18 U.S.C. Sec. 1952 (1982 & Supp. IV 1986). The jury convicted Covino on Counts Nine through Thirteen and on Count Sixteen.

Counts Seventeen through Twenty of the indictment accused Covino of wire fraud in violation of 18 U.S.C. Sec. 1343 (1982). The jury convicted Covino on these four counts.

The evidence at trial disclosed the following. In December 1983, after a favorable history of employment with AT & T, Alfred Covino became Director of Network Services at NYNEX Mobile Communications Co. NYNEX provided mobile telephone services and was then involved in a race with a competitor to build "cell sites," small structures containing switching gear used to relay signals from cellular phones within specific geographic areas.

Great Northeastern Building and Management Corporation was a small, newly formed contracting firm that operated out of the house of its half-owner, Robert Brennan. Its regular employees consisted of Brennan as President and his partner Joseph Boyd as Vice President. Brennan's wife helped out as a bookkeeper. Great Northeastern had originally been hired by NYNEX to provide consulting services but later became the prime contractor for the construction of certain cell sites. NYNEX's business eventually accounted for roughly ninety percent of Great Northeastern's business. Great Northeastern was thus heavily dependent upon the favor of NYNEX.

As Director of Network Services, Covino had substantial, although not absolute, control over the selection, supervision and payment of contractors hired to build cell sites. Covino usually could not act for NYNEX without the formal approval of other NYNEX executives, but he could in practice allow or disallow claims for extra work, approve or disapprove invoices and materially aid Great Northeastern in obtaining cell site construction contracts.

At pertinent times, NYNEX had explicit written policies forbidding its employees from soliciting or receiving benefits from persons doing business with NYNEX. These policies did not deter Covino from taking advantage of his substantial power over Great Northeastern. In May 1984, he learned that a former employee of Great Northeastern had improperly billed $3,200 in telephone calls to a NYNEX credit card.

Covino showed these bills to Brennan and warned that if Covino's superior found out about them "it wouldn't look good" for Great Northeastern. Brennan offered to pay the bills, but Covino refused the offer, saying that he would "take care of them" himself.

Not long thereafter, Covino approached Brennan for help in building a sun deck for Covino's home in New Jersey. After being told by Covino to "keep in mind the phone bill," Brennan agreed to build the sun deck at a cut-rate price. Based upon plans Covino obtained from an architect (also a NYNEX subcontractor) who employed Covino's wife, Brennan built, not a sun deck, but an entire "Florida room" addition costing in excess of $20,000. To make it appear that he had actually paid for the addition, Covino asked Brennan to take a $15,000 check and then return to him the same amount in cash. Brennan declined to participate in this cover-up but nevertheless did not ask for any payment for constructing the Florida room. Later in 1984, Covino induced Brennan to arrange and pay for additional work on Covino's house, including repairs to a sump pump, refacing of a fireplace, construction of a closet in the garage, addition of a porch on the rear of the house, and construction of a deck on the Florida room.

Its consulting contract with NYNEX having been terminated in the fall of 1984, Great Northeastern became almost totally dependent upon its construction contracts with NYNEX for its commercial survival. In June 1984, Great Northeastern had NYNEX contracts for $200,000 of work in the Boston area, and a month later the amount was increased to $500,000. This work was to be done in accordance with letters of authorization to be issued by Covino. In November 1984, Great Northeastern received another $500,000 contract for work in New York.

Because of Covino's power in selecting contractors, determining contract amounts, approving billing requests, and authorizing cost-plus-profit change order payments, Great Northeastern's commercial dependency on NYNEX was largely a dependency on Covino's favor. Brennan testified that he feared that if he refused to accede to Covino's demands, Covino would use his power to drive Great Northeastern out of business by withholding payments on completed work and by denying Great Northeastern any new construction work for NYNEX.

In the fall of 1984, Covino shifted his demands from services to cash. Near the end of December 1984, Covino even drew up a written schedule of payments, totalling $100,000. He explained to Brennan that $5 million of construction contracts, a "once-in-a-lifetime situation," were coming up and that he, Covino, wanted his "share." Covino then asked Brennan if he wanted his "share." In response to Covino's requests, Brennan made cash payments totalling $85,000 between January and April 1985.

DISCUSSION

1. The Hobbs Act Acquittal

After the jury convicted Covino on six of the eight counts charging violations of the Hobbs Act, Covino moved for acquittal pursuant to Fed.R.Crim.P. 29(c). In granting the motion, the district court stated that "there was not sufficient evidence of wrongful use of fear to uphold the jury's verdict. Indeed, there was no evidence of conduct by anybody involving a threat." Covino, 652 F.Supp. at 667. The government cross-appeals from this acquittal.

Covino argues that the double jeopardy clause of the fifth amendment bars any appeal by the government after a fact-based acquittal. His contention, however, is contrary to a well-settled rule in the courts of appeals that the government may appeal from a trial judge's acquittal of a defendant for insufficiency of the evidence after a jury has returned a verdict of guilty. See, e.g., United States v. De Garces, 518 F.2d 1156, 1159 (2d Cir.1975). The Supreme Court has never ruled directly on this question, and it has been careful to avoid even an implication that its double jeopardy decisions undermine this rule. See United States v. Scott, 437 U.S. 82, 91 Turning to the merits of the government's cross-appeal, we conclude that sufficient evidence existed to support Covino's conviction for extortion under the Hobbs Act. The Hobbs Act prohibits obstruction, delay or interference with interstate commerce by means of extortion. Extortion is defined as "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).

& n. 7, 98 S.Ct. 2187, 2193, n. 7 (1978); United States v. Martinez, 763 F.2d 1297, 1310 (11th Cir.1985) (reviewing cases and finding "no support in any Supreme Court or circuit court decision" for the view that fact-based acquittal after jury verdict of guilty may not be appealed).

In the view of the district court, unless a Hobbs Act defendant threatens to hurt his or her victim, the forthcoming payment is only commercial bribery, the essential element of which is "pay me and be assisted," but not extortion, the essential element of which is "pay me or be precluded." Covino, 652 F.Supp. at 667 (quoting United States v. Capo, 791 F.2d 1054, 1073 (2d Cir.1986) (Pratt, J., dissenting)). As was made clear by United States v. Capo, 817 F.2d 947 (2d Cir.1987) (in banc), the district court's statement of the law is essentially correct. ¹ We disagree, however, with his view of the sufficiency of the evidence in the instant case.

In a prosecution for extortion by the wrongful use of the fear of economic loss, the government must prove that the victim reasonably believed two things: "first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim's detriment." Id. at 951. A direct threat of future harm is not necessary to establish the reasonableness of the alleged victim's fear. See United...