U.S. v. DeLillo, s. 497

• Decision Date: 08 May 1980
• Docket Number: Nos. 497,s. 497
• Citation: 620 F.2d 939
• Parties: 5 Fed. R. Evid. Serv. 1173 UNITED STATES of America, Appellee, v. Vincent DeLILLO, David Francis and Clearview Concrete Products Corporation, Appellants. to 499, Dockets 79-1327, 79-1341 and 79-1342.
• Court: U.S. Court of Appeals — Second Circuit

Page 939

620 F.2d 939

5 Fed. R. Evid. Serv. 1173

UNITED STATES of America, Appellee, v. Vincent DeLILLO, David Francis and Clearview Concrete Products Corporation, Appellants.

Nos. 497 to 499, Dockets 79-1327, 79-1341 and 79-1342.

United States Court of Appeals Second Circuit.

Argued Jan. 9, 1980.

Decided May 8, 1980.

John K. Villa, Washington, D. C. (Williams & Connolly, Raymond W. Bergan, and Bruce R. Genderson, Washington, D. C., of counsel), for defendants-appellants Vincent DeLillo and Clearview Concrete Products Corporation.

James M. Catterson, Jr., Port Jefferson, N. Y. (Catterson & Nolan, Port Jefferson, N. Y., of counsel), for defendant-appellant David Francis.

Edward R. Korman, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y. (Thomas P. Puccio, Attorney-in-Charge, Organized Crime Strike Force, Eastern District of New York, Brooklyn, N. Y., of counsel), for plaintiff-appellee.

Before LUMBARD, MOORE and MESKILL, Circuit Judges.

LUMBARD, Circuit Judge:

Three defendants appeal from their convictions, after a jury trial before Judge George C. Pratt in the Eastern District, for conspiracy from June 10, 1974 to June 26, 1978 to defraud the United States in violation of 18 U.S.C. § 371 in the construction of a federally funded sewer project in the southwestern portion of Suffolk County. The corporate appellant, Clearview Concrete Products Corporation ("Clearview"), was a major contractor and supplier of concrete pipe for the project; appellant Vincent DeLillo was chief operating officer of Clearview during the period in which the alleged fraud occurred, and appellant David Francis was a longtime employee of Clearview. The three appellants claim that various rulings by the trial judge entitle them to a reversal. We find no error in the conduct of the trial and affirm all three convictions.

Clearview, founded, owned and controlled by members of the DeLillo family, contracted with Lizza Industries, Inc., to supply approximately 97% of the concrete pipe needed for construction of the Suffolk County Southwest Sewer District Project, at a cost of approximately $20 million. Although they conceded at trial that Clearview engaged in numerous acts of fraud, including the conducting of rigged tests of the pipe it manufactured, the bribery of inspectors hired by consulting engineers, and the improper repair of pipes previously installed, the defendants argued that the frauds were committed at the instigation and under the supervision of Walter Gorman, a Clearview employee from June 1974 to November 1976, without the knowledge or cooperation of Vincent DeLillo or David Francis. Gorman testified as the government's chief witness at trial.

Because there is no claim that the evidence was insufficient, a restricted summary of the facts will suffice. The fraudulent conduct in which Clearview engaged included the systematic rigging of hydrostatic and three-edge bearing testing of concrete pipe made by Clearview. There was copious and direct evidence, some gathered during a raid by F.B.I. agents at an actual test on June 26, 1978, that a three-edge bearing machine put together by Clearview and operated on Clearview's premises included the addition of a yellow valve, by which the actual amount of pressure being applied to the pipe under examination could be reduced without any reduction in the reading on the gauges visible to the inspectors. Defendant Francis was detailed to operate the yellow valve in this manner and other Clearview employees were ordered to position their bodies during the tests in such a way as to block the inspectors' view of the yellow valve.

A second aspect of the defendants' conspiracy was the outright bribery of several inspectors. Gorman testified that Vincent DeLillo told him how much he, Gorman, was to pay out on Clearview's behalf to the inspectors. Thomas Monahan, a Clearview employee, corroborated Gorman's testimony in key respects on this issue, and some of the inspectors admitted accepting cash payments.

The third part of the conspiracy involved Clearview's efforts to conceal the results of its earlier misconduct. Having gotten the substandard pipe past the barrier of inspection, Clearview began to get reports, after installation, that major cracks were appearing in the pipe. Vincent DeLillo sent Clearview workmen to the scene to perform woefully inadequate, cosmetic "repairs". These repairs were performed surreptitiously that is, Clearview gave no notice to county officials, and, with the connivance of the contractor, Lizza Industries, the repairs were concealed from project inspectors.

On appeal, defendants Vincent DeLillo and Clearview press three grounds, each of which, they argue, constitute reversible error: First, the admission into evidence for impeachment purposes of testimony by Gorman that Andrew DeLillo, Vincent DeLillo's father, threatened both him and Monahan with retribution should either testify in a manner incriminating to Vincent DeLillo; second, the admission of redacted portions of a tape recording of testimony Monahan gave to the grand jury, for the purpose of impeaching portions of Monahan's testimony at trial; and third, the trial judge's failure to give the jury any instruction on the relation, if any, between the surreptitious nature of the in situ repairs to Clearview's contractual obligations. David Francis raises several other issues: the allegedly incorrect ruling by the trial judge forbidding the demonstration of the three-edge bearing machine in the presence of the jury; the ruling by the trial judge that Francis' counsel's cross-examination of Gorman as to Gorman's prior bad acts could not extend to challenging Gorman's initial answers to such questions; the denial by the trial judge of two motions involving jury selection; and, finally, an alleged variance between the indictment and the proof adduced by the government at trial.

First, we address the question of the admission of Gorman's testimony about Andrew DeLillo's threat. ¹ Initially, it may be noted that Andrew DeLillo was not indicted and did not testify. He was Clearview's founder and controlled it, although ownership had been dispersed among various members of the DeLillo family. In 1974, Andrew, because of ill-health, had turned over the presidency of the company to his son, Vincent, then twenty-two years old. Andrew resumed the reins after the F.B.I. "raid" on June 26, 1978.

We have already noted that Monahan (a Clearview employee who was a brother-in-law of Andrew DeLillo), also testified for the government, corroborating Gorman's testimony in important respects. But in some details Monahan's testimony differed from Gorman's and a pattern in these differences emerged Monahan avoided implicating Vincent DeLillo in Clearview's illegal behavior. As the trial judge summed up the situation: "Monahan's testimony could have been viewed as having been carefully structured to insulate Vincent DeLillo from any involvement in the conspiracy."

The sequence of events immediately prior to the introduction of the threat evidence was as follows: After both Gorman and Monahan had testified on direct and cross-examination without mentioning the conversation in Andrew DeLillo's car in which the threat was made, the government recalled Monahan, who testified, among other things, that he had lied when he implicated Vincent DeLillo in the course of a tape-recorded conversation with Gorman which had been played to the jury. Monahan maintained that other portions of this conversation, damaging to Clearview but not to Vincent DeLillo, were true. The prosecutor then asked Monahan about a conversation with Andrew DeLillo in the latter's car, at which Gorman (along with Andrew DeLillo's chauffeur Vincent Fradella) had also been present. Monahan gave an account which did not include any testimony of a threat uttered by Andrew DeLillo. The government then recalled Gorman and asked him, again among other things, to give his account of the conversation with Andrew DeLillo. Gorman's version tracked Monahan's but included in addition testimony that Andrew DeLillo said "(t)hat whoever this guy (the F.B.I. informant) is, if he hurts my son he will be looking over his shoulder for the rest of his life." The defense objected to Monahan's testimony about the conversation and in its post-trial motion for a new trial urged that admission of the threat was so prejudicial that it should have been excluded under Rule 403 of the Federal Rules of Evidence.

Judge Pratt, in his post-trial memorandum denying the new trial motion, gave us an explicit account of his retrospective performance of the balancing required by Fed.R.Evid. 403, which reads in pertinent part:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . .

We think there was no error in admitting Gorman's testimony regarding Andrew DeLillo's threat.

Appellants argue that our prior cases establish a principle that threat evidence cannot be introduced by the government except under "exceptional circumstances", which can be characterized as fair response to affirmative actions by the defense which "invite introduction of the threat evidence," United States v. Malizia, 503 F.2d 578, 581 (2d Cir. 1974). It is true that the fact patterns of some of our cases in this area fit this characterization. However, at no point has this Circuit ever held that the normal processes of Fed.R.Evid. 403 balancing must be supplemented by an additional, iron-clad requirement that the defense "invite" threat testimony.

In our most recent case, United States v. Check, 582 F.2d 668 (2d Cir. 1978), in which we reversed a narcotics conviction, the entire discussion of threat evidence is described by the panel itself as dicta. 582 F.2d at 684-85. Check reviews prior cases and notes that in each of them "the government, in eliciting death threat testimony, was responding to an issue already...