U.S. v. Robilotto

Decision Date11 September 1987
Docket NumberNos. 1015,1016,1313,D,s. 1015
Citation828 F.2d 940
Parties126 L.R.R.M. (BNA) 2384, 107 Lab.Cas. P 10,133 UNITED STATES of America, Appellee, v. J. Michael ROBILOTTO, Louis D. Spagnola and Anthony V. Civitello, Defendants- Appellants. ockets 86-1513, 86-1514, 86-1515.
CourtU.S. Court of Appeals — Second Circuit

Mark M. Baker, New York City (Barry Ivan Slotnick, Arthur J. Viviani, Slotnick and Baker, New York City, of counsel), for defendant-appellant J. Michael Robilotto.

John L. McMahon, Saratoga Springs, N.Y., for defendant-appellant Louis D. Spagnola.

Anthony V. Civitello, pro se.

Frank J. Marine, U.S. Dept. of Justice, Washington, D.C. (Frederick J. Scullin, Jr., U.S. Atty., Syracuse, N.Y., Kevin E. McCormack, U.S. Dept. of Justice, Syracuse, N.Y., of counsel), for appellee U.S. of America.

Before FEINBERG, Chief Judge, LUMBARD and MINER, Circuit Judges.

MINER, Circuit Judge:

Defendants-appellants J. Michael Robilotto, Louis D. Spagnola and Anthony V. Civitello appeal from judgments of the United States District Court for the Northern District of New York (Gagliardi, J.), convicting them of various offenses arising from their association with Local Union No. 294 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 294"). Each appellant was charged with various counts of a 50-count superseding indictment, including substantive RICO violations, 18 U.S.C. Sec. 1962(c) (1982); RICO conspiracy, id. Sec. 1962(d); Hobbs Act conspiracy and substantive Hobbs Act violations, id. Sec. 1951; mail fraud, id. Sec. 1341; receiving benefits to influence the operation of an employee welfare plan, id. Sec. 1954; receiving illegal payments as an employee representative, 29 U.S.C. Sec. 186(b)(1) (1982); conspiracy to misapply bank funds and to make false book entries and false statements in credit applications, see 18 U.S.C. Sec. 371 (1982); and filing false federal income tax returns, 26 U.S.C. Sec. 7206(1) (1982).

On appeal, Robilotto contends primarily that the Hobbs Act count on which he was convicted failed to state a criminal offense. He also challenges the sufficiency of the evidence to support his convictions for extortionate conspiracy and for receiving benefits to influence the operation of an employee welfare plan. He argues as well for reversal of his RICO convictions on the ground that there was an insufficient nexus between the pattern of racketeering shown and the affairs of the charged enterprise. Spagnola challenges the district court's entry of a RICO forfeiture judgment against him. Civitello claims primarily that the charges against him were barred by the applicable statute of limitations. We affirm.

I. BACKGROUND

Although appellants raise numerous claims, only a few merit discussion. We summarize below only those facts necessary for a full understanding of the discussion that follows. The evidence adduced at trial demonstrated the existence of two criminal schemes pertinent to this appeal. The first scheme had its genesis in the negotiations for a collective bargaining agreement between Universal City Studios ("Universal") and Local 294 to supply drivers in connection with production of the film, "Ghost Story." Robilotto served as a business agent for Local 294 on the film. 1 Civitello acted as a job steward and captain for Local 294 on the film Spagnola and Spagnola acted as an assistant or co-steward and co-captain. 2 The second scheme involved efforts by Robilotto and Spagnola to obtain loans from the Fulton County National Bank, in exchange for which Robilotto agreed to arrange for substantial deposits in the bank from the Albany Area Trucking and Allied Industries Health and Welfare Fund ("Health and Welfare Fund").

A. The Cover Driver Scheme

After some preliminary negotiations, Robert Brown, a production manager employed by Universal, came to the Albany, New York area in November 1980 to prepare for filming of the motion picture "Ghost Story." Brown met with Civitello to negotiate an agreement with Local 294 to use local teamster drivers on the film. Brown and Civitello reached agreement as to wages and fringe benefits. Civitello then proposed that Universal hire local drivers as "cover drivers" for some of the jobs that were to be performed by the Los Angeles drivers accompanying the preproduction team from California. The term "cover driver," as defined by appellants, refers to hiring a local union member to "cover" for a job that actually is performed by a union member from another jurisdiction. Thus, the employer must hire two workers for the same job, when the work is performed solely by the employee from a foreign jurisdiction. The cover driver thereby receives an unearned salary. Brown initially balked at the proposal. He told Civitello that he never had used cover drivers and that he had no jobs for them to do. Civitello responded that Universal was required to hire cover drivers if it expected to employ teamsters on the motion picture and if it expected to be able to film it in the Albany area. Civitello also suggested the possibility of a work stoppage if cover drivers were not hired. Brown agreed to hire four cover drivers.

Filming began in January 1981. In April 1981, Daniel Slusser, a vice president and general manager of Universal, became aware that cover drivers were being paid by Universal in connection with the filming of "Ghost Story." Slusser also discovered that these cover drivers were doing no work and that several of the drivers, e.g., Irene Civitello, Frank Civitello and Donna Spagnola, apparently were related to some union officials. In fact, many of the cover drivers hired were not union members and were incapable of performing the jobs that they purportedly were covering. Slusser telephoned instructions to several Universal executives that payments to all cover drivers should cease. These instructions were conveyed to Civitello, who then spoke to Slusser. Slusser informed him that the cover drivers would be required to work and would not be paid unless they worked. Civitello responded that Slusser would have to speak to Robilotto.

Later that day, all three appellants met with William Gray, a production supervisor, who repeated that Universal would not pay for non-working cover drivers. Robilotto became angry and began swearing, threatening that they would either pay or he would "shut them down." Gray then arranged for Robilotto to speak to Slusser. Robilotto repeated his threat to Slusser. Slusser agreed to meet with Robilotto in Arizona. The meeting took place in May 1981 and lasted for approximately 15 minutes. After the meeting, Slusser called a Universal executive and told him to continue paying the cover drivers for the remaining two weeks of filming.

At trial, both Brown and Gray testified that they felt threatened by Civitello and Robilotto respectively, and that they paid the cover drivers only in response to those threats. Four cover drivers also testified, including Irene Civitello, ex-wife of appellant Civitello, and several long-time friends of Spagnola. Each testified that they received little or no money from Universal, and several testified that Spagnola had gotten them jobs to facilitate their repayment to him of gambling debts. Universal paid a total of approximately $50,000.00 for the "services" of these four cover drivers.

B. The Bank Loan Scheme

In July 1981, Robilotto and Spagnola contacted Charles Moyses, then vice-president of Fulton County National Bank and an unindicted coconspirator in this case, informing him that they were connected to the local teamsters union and requesting a loan of $150,000.00 to purchase a restaurant in Saratoga Springs, New York. Moyses informed them that it would be necessary to deposit $100,000.00 in the bank in connection with the loan, and asked if they could get deposits from their union. Robilotto responded affirmatively. He later called Moyses to inform him that Health and Welfare Fund certificates of deposit would be transferred to the bank when they matured. Robilotto also told him that Herbert Bender, who was an official of the Health and Welfare Fund, would arrange the transfers. Shortly thereafter, Bender called Moyses to inform him that $300,000.00 would be wired to the bank. That deposit was made in December 1981. On at least two other occasions, Spagnola and Robilotto obtained loans from the bank conditioned on further union deposits. On both occasions, further Health and Welfare Fund deposits were made. Moyses testified at trial that the entire series of loans to Robilotto and Spagnola, totalling more than $474,000.00 over the course of a year, had been approved because Robilotto had arranged for substantial deposits in the Fulton County National Bank from the Health and Welfare Fund.

In his defense, Robilotto offered testimony from John C. Peet, Jr., a trustee of the Health and Welfare Fund, as to the Fund's decision to transfer deposits to the Fulton County National Bank, and from his wife, who testified that she was hired as a cover driver and performed work on the film. Civitello testified in his own behalf. Spagnola did not testify and called no witnesses.

After a two-week jury trial, appellants were found guilty on all 50 counts. Spagnola and Robilotto were sentenced to a total of four years' imprisonment and Civitello was sentenced to a total of six years' imprisonment. In addition, judgments of forfeiture were entered against all three appellants. Robilotto was ordered to forfeit to the United States $107,354.00, to be paid as restitution to the Fulton County National Bank, and to forfeit his position as business agent for Local 294. Civitello was ordered to forfeit $27,940.00 to the government. Spagnola was ordered to make restitution to his victims in the amount of $143,439.00 and to forfeit $173,260.00 to the United States. This appeal followed.

II. DISCUSSION
A. Robilotto's Claims
1. ...

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