U.S. v. Fitapelli

• Decision Date: 21 April 1986
• Docket Number: No. 84-3551,84-3551
• Citation: 786 F.2d 1461
• Parties: 1986-1 Trade Cases 67,059 UNITED STATES of America, Plaintiff-Appellee, v. Joseph "Jo Jo" FITAPELLI, Vito Signorile, d/b/a Eagle Sanitation, Geraldo De Vivo, Suncoast Disposal, Inc., Donald Fowler, Thomas Kerrigan, Imperial Carting Associates, Inc., Carlo Di Nardi, d/b/a Solar Sanitation, Bernard Agostino, Vicenzo "Jimmy" Acquafredda, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1461

786 F.2d 1461

1986-1 Trade Cases 67,059

UNITED STATES of America, Plaintiff-Appellee, v. Joseph "Jo Jo" FITAPELLI, Vito Signorile, d/b/a Eagle Sanitation, Geraldo De Vivo, Suncoast Disposal, Inc., Donald Fowler, Thomas Kerrigan, Imperial Carting Associates, Inc. Carlo Di Nardi, d/b/a Solar Sanitation, Bernard Agostino Vicenzo "Jimmy" Acquafredda, Defendants-Appellants.

No. 84-3551.

United States Court of Appeals Eleventh Circuit.

April 21, 1986.

Kerry H. Brown, Tampa, Fla., for Fitapelli.

Wayne J. Boyer, Leonard J. Mankin, Dunedin, Fla., for Signorile.

Ronnie G. Crider, Alan K. Smith, Clearwater, Fla., for De Vivo and Suncoast.

James D. Whittemore, Tampa, Fla., for Fowler, Kerrigan and Imperial.

Larry C. Hoffman, Clearwater, Fla., for DiNardi.

Robert Fraser, Tampa, Fla., for Agostino.

Carolyn J. House, Tampa, Fla., for Acquafredda.

David H. Runyan, Asst. U.S. Atty., Tampa, Fla., John J. Powers, III, Edward T. Hand, U.S. Dept. of Justice, Antitrust Div., Washington, D.C., for the U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT, Circuit Judge and SIMPSON, Senior Circuit Judge.

SIMPSON, Senior Circuit Judge:

A grand jury indicted fourteen defendants on one count of violating Sec. 1 of the Sherman Act, 15 U.S.C. Sec. 1, by conspiring to fix prices and allocate customers in the garbage business in Pinellas County, Florida. The defendants were jointly tried on a superseding indictment and the jury found eight individual and two corporate defendants guilty. All convicted defendants have appealed and the district court has stayed all sentences pending review by this court. Each of the appellants has adopted his codefendants' arguments pursuant to Fed.R.App.P. 28(i). All points discussed have been properly preserved for appeal. We shall limit our discussion to the meritorious arguments raised below which require reversal.

A central theme of all of the appellants' briefs is that the indictment failed to plead, and the government failed to prove, the nexus between the defendants' illegal business activities and interstate commerce which is the sine qua non of establishing jurisdiction under Sec. 1 of the Sherman Act. Jurisdiction may be proven under either or both of two theories: (1), the defendant's offending activities took place "in the flow of interstate commerce" (flow theory) and (2), the defendants general business activities had or were likely to have a "substantial effect on interstate commerce". (effect theory). McClain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 241-46, 100 S.Ct. 502, 508-11, 62 L.Ed.2d 441 (1980); Construction Aggregate Transport v. Florida Rock Industries, 710 F.2d 752, 766-67 (11th Cir.1983) (CAT ); Shahawy v. Harrison, 778 F.2d 636, 640 (11th Cir.1985); Feminist Women's Health Center, Inc. v. Mohammed, 586 F.2d 530, 539 n. 1 (5th Cir.1978); cert. denied 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979); United States v. American Service Corp., 580 F.2d 823, 825 (5th Cir.1978), cert. denied 439 U.S. 1071, 99 S.Ct. 842, 59 L.Ed.2d 37 (1979). The trial court charged the jury under both theories. Accordingly, we must examine the indictment and the evidence to see whether they have been sufficiently pleaded and proven.

In judging the sufficiency of the indictment, the court must look to the allegations and, taking the allegations to be true, determine whether a criminal offense has been stated. United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.) cert. denied 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978) (Cadillac ).

There is no trick to pleading jurisdiction under the Sherman Act in a criminal case. The indictment, viewed as a whole and in a practical sense, must simply set forth the elements of the offense charged in order that the constitutional right against double jeopardy will be insured and the defendant may be informed of the accusations against him. Cadillac, 568 F.2d at 1082. The government's brief identifies three paragraphs from the superceding indictment upon which the defendants were tried. Those paragraphs state:

6. Imperial Carting Associates, Inc., Suncoast Sanitation, Inc., and Suncoast Disposal, Inc. were corporations engaged in business affecting interstate commerce.

7. The individual defendants and corporate defendants obtained substantial quantities of equipment and supplies from sources outside the State of Florida for providing waste disposal service.

8. The individual defendants and corporate defendants provided waste disposal service to customers whose solid waste was generated as a consequence of activities which were within the flow of interstate commerce.

Collectively, and when read in concert with the remainder of the indictment, the three paragraphs are sufficient to allege jurisdiction under Sec. 1 of the Sherman Act and patently insufficient to allege that the defendants were operating "in the flow of commerce". Although the government argued below, and argues here that paragraph 8 above is sufficient to charge the flow theory, that paragraph, in plain language, alleges that the defendants' customers generated solid waste as a consequence of the customers' activities which were within the flow of interstate commerce. The allegations of paragraph 8 when read in the context of the whole indictment were sufficient to allege a possible effect on interstate commerce, see, U.S. v. Cargo Service Stations, 657 F.2d 676, 678-79 (5th Cir. Unit B 1981) cert. denied 455 U.S. 1017, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1972), but were not even arguably sufficient to allege the flow theory. We are well aware that an allegation of jurisdiction under the flow theory may be "somewhat conclusory" and still withstand attack. Cadillac, 568 F.2d at 1081-82. However, the government's allegations of flow fall far short of any jurisdictional allegation in a Sherman Act case that we or our predecessor court have ever upheld before. (We further note that the allegations of the "effect" are, charitably speaking, barely adequate to sustain jurisdiction.) We therefore find the indictment fatally defective insofar as it supported the admission of evidence, jury instruction or argument on the flow theory.

Perhaps sensing the weakness of the indictment and its argument in defense of it, the government argues that any insufficiency was harmless error because the government and the district court both gave advance notice, through arguments and orders rendered prior to trial, that the flow theory would be presented to the jury and that appropriate instructions would be given. This is not a case in which the harmless error standard may be applied to a mere variance in the indictment. The court instructed the jury on a theory of jurisdiction which had not been charged by the grand jury. In charging the jury that they could find the defendants guilty under either or both theories the trial court materially amended the indictment and destroyed the defendants' right to be tried only on the charges against them. United States v. Stirone, 361 U.S. 212, 214, 80 S.Ct. 270, 271, 4 L.Ed.2d 252 (1960); United States v. Bizzard, 615 F.2d 1080, 1082 (5th Cir.1980). We therefore must reverse the convictions. ¹

Because all defendants have raised the question of the sufficiency of the evidence of jurisdiction to support their convictions, we must review this question to determine whether their Fifth Amendment protections against double jeopardy will be offended by retrial. ² In addressing this question, we must view the evidence in the light most favorable to the government and draw all reasonable inferences in favor of the guilty verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); U.S. v. Bell, 678 F.2d 547, 548 (5th Cir. Unit B 1982); (en banc ) aff'd 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Viewed even by this liberal standard, we cannot find sufficient evidence of jurisdiction to sustain the defendant's convictions under the flow theory. Although the government's brief recites a great deal of evidence which it would have this court interpret as placing the defendants' illegal activities in the flow of commerce, the greater...