U.S. v. Daley

• Decision Date: 20 October 1977
• Docket Number: D,No. 4,4
• Citation: 564 F.2d 645
• Parties: 82 Lab.Cas. P 10,203 UNITED STATES of America, Appellee, v. Theodore G. DALEY, Defendant-Appellant. ocket 77-1262.
• Court: U.S. Court of Appeals — Second Circuit

Page 645

564 F.2d 645

82 Lab.Cas. P 10,203

UNITED STATES of America, Appellee, v. Theodore G. DALEY, Defendant-Appellant.

No. 4, Docket 77-1262.

United States Court of Appeals Second Circuit.

Argued Sept. 27, 1977.

Decided Oct. 20, 1977.

Kenneth V. Handal, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Frank H. Wohl, Frederick T. Davis, Asst. U. S. Attys., New York City, of counsel), for appellee.

Gustave H. Newman, New York City (Roger Bennet Adler, New York City, of counsel), for defendant-appellant.

Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

Theodore G. Daley appeals from judgments of conviction entered in the United States District Court for the Southern District of New York after a three-week trial before the Hon. Morris E. Lasker, District Judge, and a jury. The indictment which was filed on August 3, 1976 contained one count charging Daley with conspiracy to violate the Hobbs Act ¹ and another count charging him with extortion, a substantive violation of the Hobbs Act, 18 U.S.C. § 1951. The indictment also charged Daley, a union official, with five counts of accepting goods and services from employers of union members in violation of the Landrum-Griffin Act, 29 U.S.C. § 186(b)(1), (d). The jury found Daley guilty on all seven counts on March 10, 1977. Judge Lasker suspended the imposition of sentence on all counts and placed Daley on probation subject to special conditions for three years. He also fined Daley $5,000 on each of the five Landrum-Griffin Act violations. The defendant has not appealed from the judgments of conviction on these five counts but has limited his appeal to the convictions under the Hobbs Act contained in the first two counts of the indictment. ²

I

Since 1956 the appellant Daley has been Secretary-Treasurer, or principal officer, of Teamsters Local 445 (Local) which has several thousand members and a territorial jurisdiction which embraces the counties of Westchester, Putnam, Dutchess, Rockland, Ulster, Orange and Sullivan in the State of New York. The evidence presented by the Government indicated that in the summer of 1971 Daley requested Anthony Alecca, Jr., the President and number two officer of the Local, to obtain for him some stone for the purpose of constructing a driveway for Daley's camp or mountain cabin in Windham, New York. Alecca then approached Thomas Turco, who was a superintendent for Hudson Cement in Kingston, New York, and requested approximately ten loads of stone for Daley's use. Turco in turn discussed the matter with his superior Robert Greene, general manager of Hudson Cement, an employer which was then in contract negotiations with Local 445. Greene decided to provide Daley with a couple of loads of stone in order to avoid any union problems. Daley was then advised through Alecca that Hudson Cement would supply the stone. The next step was to obtain the equipment and personnel for the project. Alecca instructed Thomas Clausi, the Local 445 shop steward on a project to repair the New York State Thruway near Kingston, to arrange for the trucks and truckers. Alecca told Clausi to have two Local 445 owner-operators provide dump trucks and drivers to load and haul the stone after working hours. Eventually, stone was delivered to Daley's cabin on three separate occasions: September 3, 4 and 11, 1971.

In all, thirty to thirty-six truck loads of stone totalling about 600 tons were delivered by union drivers to Daley's cabin. Some ten to fifteen ten-wheel dump trucks, a tractor trailer and other equipment supplied by Local 445 owner-operators and contractors who employed union members were used to make the deliveries. The stone was then selling at a delivered price of nine dollars per ton at Windham, which was 60 miles distant from Kingston where the stone was located. On none of these trips were the drivers paid for their labor or the truck owners for the use of their equipment or fuel. ³ Hudson Cement received no reimbursement for the stone it supplied.

The record amply demonstrates that Daley was fully aware of the arrangement, directed where the stone was to be placed and was insistent that sufficient stone be delivered to satisfy his needs.

Clausi testified that in making the arrangements for the stone deliveries he was just following orders. He also testified to his belief that if he or the union members had refused to make the hauls they would not have received work. One owner-operator testified that he made a delivery to insure his job. Another, Robert Kozlowski, testified that he agreed to the hauls so that his drivers would not lose work. Kozlowski further testified that in March, 1974, after the investigation into this matter had begun, Daley told Kozlowski that he could put Kozlowski's four trucks to work but would not do so. Several Local 445 drivers also testified that they made deliveries only because Clausi threatened that they would lose their jobs if they refused.

In addition to the stone, Daley later advised Clausi that he needed some twelve-inch by twelve-inch wooden beams. Clausi secured some twenty to twenty-five painted beams from the Maggiola Construction Company. The beams were hauled to Daley's cabin from Pearl River, some sixty miles south of Kingston, by an employee of Callanan Industries, the contractor on the Kingston Thruway job. The employee was paid for his services by Callanan. An additional twenty-two beams costing $34 to $35 each were provided by Callanan Industries and were delivered to Daley's cabin by a Local 445 driver on Callanan's payroll. Daley again had instigated the delivery of the beams and had helped unload one shipment. No payment was made for the beams.

Daley testified in his own defense, taking the position, in substance, that the stone delivery was Alecca's idea and that he believed the stone was waste material. He further testified that the delivery of the beams was a complete surprise and that he kept them at Alecca's request. Daley denied that he asked Clausi for additional stone after the first delivery on September 3, and claimed that he paid Alecca $700 or $800 to distribute among the truck drivers.

Daley also called a number of witnesses. Chester Davis, the current President of the Local, testified that he overheard a conversation between Daley and Alecca concerning the trucking of material to Windham, during which discussion Daley gave Alecca money. Raymond Ebert, another union official, testified that although Daley was the union boss he did not control which union members worked. One Local owner-operator and three of his drivers testified that they made the deliveries to Daley's cabin without fear of reprisal if they did not participate. Two of these witnesses testified that the material they delivered to the cabin was waste although this was contradicted by their prior testimony before the Grand Jury.

Clearly the evidence at trial presented issues of credibility which the jury resolved adversely to the defense.

II

On this appeal Daley argues that the trial evidence was legally insufficient to establish a Hobbs Act violation.

A. The first contention made by the appellant is that the acts alleged and proven at the trial had insufficient impact on interstate commerce to fall within federal jurisdiction. We commence with the premise 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." Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960).

The pertinent language of § 1951(a) is indicative of the congressional intent. "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion . . . " is in violation of the Act (emphasis added). Construing this language, this court has held that "(s)tated differently, extortion or threats of violence need affect interstate commerce only in a minimal degree to constitute a violation." United States v. Tropiano, 418 F.2d 1069, 1076 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970). "(I)t is enough that the extortion in any way or degree (citation omitted) affects (interstate) commerce, though its effect be merely potential or subtle." United States v. Augello, 451 F.2d 1167, 1169-70 (2d Cir. 1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802 (1972). Furthermore, it is not necessary that the purpose of the extortion be to affect interstate commerce. United States v. Varlack, 225 F.2d 665, 672 (2d Cir. 1955). It is sufficient that one of the natural effects of the offense is an obstruction of that commerce. United States v. Addonizio, 451 F.2d 49, 77 (3d Cir.), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972).

Here the victims of Daley's scheme of extortion were workers and contractors on the New York Thruway, a major artery of interstate commerce. The threats which forced compliance were the loss of continued opportunities to work on that interstate highway. The jurisdictional requirement of the Hobbs Act has been held to be satisfied merely by the exaction of tribute from local contractors erecting facilities to serve an industry engaged in interstate commerce. United States v. Addonizio, supra, 451 F.2d at 76-77. A fortiori, extortion directed at those constructing part of an interstate highway, which is an instrumentality of interstate commerce, falls within the jurisdictional scope of the Hobbs Act. The requisite impact on interstate commerce has also been found where the resources of a business engaged in interstate commerce are diminished by extortion, thereby permitting the inference that as a consequence of the extortion the operations of the business have been delayed, obstructed or in some way affected. United...