U.S. v. Jarabek, 82-1849

• Decision Date: 01 February 1984
• Docket Number: No. 82-1849,82-1849
• Citation: 726 F.2d 889
• Parties: 15 Fed. R. Evid. Serv. 178 UNITED STATES of America, Appellee, v. Allen L. JARABEK, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 889

726 F.2d 889

15 Fed. R. Evid. Serv. 178

UNITED STATES of America, Appellee, v. Allen L. JARABEK, et al., Defendants, Appellants.

No. 82-1849.

United States Court of Appeals,

First Circuit.

Argued Oct. 5, 1983.

Decided Feb. 1, 1984.

Earle C. Cooley, Boston, Mass., with whom Deborah A. Ramirez, Newton Center, Mass., Robert W. Thuotte, Brookline, Mass., Hale & Dorr, Boston, Mass., and William E. White, Fall River, Mass. were on brief, for defendants, appellants.

A. John Pappalardo, Asst. U.S. Atty., Dedham, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BREYER, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and SMITH, ^** Senior District Judge.

TIMBERS, Circuit Judge.

Allen L. Jarabek and Thomas E. Alecrim appeal from judgments of conviction entered in the District of Massachusetts on November 4, 1982, after a ten day jury trial, for conspiring to violate and violating 18 U.S.C. Sec. 1951 (1982) (Hobbs Act). For the reasons set forth below, we affirm.

I. FACTS AND PRIOR PROCEEDINGS

We find it appropriate to set forth the facts in some detail. As in any Hobbs Act prosecution, the facts are critical--especially in the instant case where the charged extortion was of a subtle character. Except where otherwise stated, all events prior to the indictments occurred during 1979 and January 1980. There was evidence from which the jury could have found the following facts.

(A) The Construction Project

In the Spring of 1979, the City of Fall River, Massachusetts, requested bids from contractors to supply and install a security fence around the perimeter of the B.M.C. Durfee High School. The bids were opened on May 16. New England Chain Link Fence Co., Inc. (New England Fence), a corporation based in Dorchester, Massachusetts, whose president was Richard A. Miara, was the low bidder. New England Fence at that time grossed approximately $800,000 per year. It obtained its materials through interstate commerce. After resolution of some confusion regarding the terms of the contract, it was finally executed on August 13. ¹ Work was begun at The initial work done at the site was the installation of 112 fence posts. This installation was in an area staked out by the city engineer, but which was not covered by the original contract specifications. Miara did not become aware of this until September 19. An on-site inspector for the City of Fall River supervised the work. In late August, however, appellant Jarabek, who at that time was an elected member of the Fall River School Committee and Chairman of the Subcommittee on Buildings and Grounds, appeared at the work site and complained that the posts had not been installed as specified in the contract. His complaint was not about the location of the posts but rather about the depth to which they had been installed. This was followed by a letter dated August 31 from appellant Alecrim, who at that time was the Assistant Superintendent of the Fall River School Department. In his letter Alecrim stated that the quality of work performed at the site did not meet specifications and that work should not be resumed until all parties could discuss the problem. This letter, according to Miara, was the first contact that he personally had had with any official from Fall River. Miara telephoned Alecrim. During the course of their conversation, a meeting was scheduled at Alecrim's office for September 4. No work was done on the fence between August 31 and September 4.

the high school site soon thereafter by a subcontractor hired by Miara.

On September 4, Miara met with Alecrim in the latter's office, along with the Superintendent of the School Department and the City's on-site supervisor, to discuss the problems that had arisen. In particular, they discussed the complaint that the holes that had been dug for the fence posts apparently were neither the correct depth nor the correct shape. It was agreed at the meeting that the 112 posts already installed could remain in the ground; that work would continue in another area of the school grounds; and that the on-site inspector was to report immediately to School Department officials any further deviations from the contract specifications.

After that meeting, and on the same day, Miara visited the jobsite for the first time. The subcontractor's crew had resumed work in an area away from the location of the disputed posts. During this visit by Miara, Jarabek arrived at the site. Jarabek informed Miara that the 112 posts would have to be removed. Miara then related to Jarabek the agreement reached that morning in Alecrim's office. Apparently angered by this, Jarabek left the jobsite and returned a short while later with Alecrim. Alecrim told Miara that it was Jarabek who had the final word; if he wanted the posts removed, they would have to be removed. Miara then asked Jarabek whether anything could be done to "iron things out". By this, Miara later testified, he wondered whether he could offer a guarantee, or fix the posts, or do anything except pull the posts out. Jarabek replied that the only acceptable solution was to pull the posts out. Alecrim confirmed this in a letter to Miara the following day, September 5, with a copy to Jarabek.

On September 6, Alecrim wrote another letter to Miara. In this letter, Alecrim stated his position that, pursuant to a resolution of the School Committee, work should be stopped completely until a meeting of all parties could be held. He further stated that a meeting of school officials scheduled for September 10 would be an appropriate time to discuss the matter. Miara contacted his attorney, Robert Cohen, who agreed to accompany Miara to the September 10 meeting.

At that meeting, Jarabek restated his demand that all posts in place be removed. After extensive discussion reportedly dominated by Jarabek, a compromise was reached allowing Miara to leave in place the concrete foundations for the posts, but requiring him to cut the posts off at ground Miara next ordered his subcontractor to resume work at the high school. No further problems were encountered until September 18, when Miara was told that once again Jarabek had come to the jobsite and had complained about the new holes that had been dug. On September 19, Miara was misinformed that the school committee had not approved the change order the previous evening and was not going to do so. The committee in fact did not meet until the evening of September 19. The change order was neither approved nor rejected at that meeting. On September 19, however, Miara ordered the subcontractor to stop work and to leave the jobsite, since he finally had been informed that the area where all the work had been done was not covered by the original contract.

                level and to install them nearby.  Also part of the compromise was an agreement by the school officials to process within 10 days a change order with respect to the original contract which would provide for the heavier gauge fencing and additional fencing footage.  Miara, through his attorney, then stated that, if the change order did not come through, the contract would be performed by New England Fence according to the original specifications.  Miara later testified that, even at the time of this meeting, he was unaware that his workers were in an area not covered by the original contract.  Immediately after the meeting, Jarabek approached Miara and asked him if he was making any money on the contract.  Miara replied in the negative.  Jarabek then asked him if he wanted to get out of the contract completely, to which Miara replied no. 2   The terms of the compromise reached at the school committee meeting were confirmed by letter dated September 13 from Cohen to the city attorney
                

On Friday, September 21, Miara received a telephone call from his attorney, Cohen. Cohen had just spoken to the city attorney. Cohen reminded Miara that it had been agreed on September 10 that, if a change order was not approved, New England Fence would proceed according to the original contract. Cohen urged Miara to try to resolve the problem with Alecrim.

On Monday, September 24, Miara called Alecrim and asked for a meeting with Alecrim the following day to go over the terms of the original contract. According to Miara, Alecrim then stated, "Dick, if you hadn't come on so strong, maybe things could have been a little easier." When asked what he meant, Alecrim responded, "It's an election year and campaigning is very expensive." When Miara realized that Alecrim was talking about money, he asked how much. Alecrim told him $2000. Miara then stated that, if the money would help expedite the job, he would go along with it. At this point, Miara reminded Alecrim of his (Miara's) September 4 inquiry to Jarabek whether anything could be done to "iron things out".

Miara then called his attorney, Cohen, and recounted the conversation with Alecrim. Cohen urged Miara, because of the serious implications involved, to go to the meeting the following day to ascertain whether Alecrim indeed was demanding money from Miara. Miara agreed to do so and to report back to Cohen.

On the following day, September 25, Miara went to the jobsite where he met with Alecrim and others. When Miara and Alecrim were alone, Alecrim brought up the subject of the money and asked Miara if he would still go along with it. Miara said that he would, but only on the conditions that the 112 posts already installed be allowed to stay in and that the change order be approved. Alecrim replied that approval of the change order presented no problem, but that Jarabek probably would not go along with leaving the 112 posts in the ground. Alecrim offered to call Jarabek, to which Miara agreed. Alecrim placed a call and asked the answering party to have "Allen"

                call back.  Ten minutes later, the phone rang.  Alecrim answered, "Hi, Allen.  Dick's decided to contribute to the war chest, but he wants some concessions."

...