U.S. v. Shareef

• Citation: 190 F.3d 71,1999 WL 675103
• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-1606
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. JABRIL SHAREEF, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 71

190 F.3d 71 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. JABRIL SHAREEF, Defendant-Appellant.

Docket No. 98-1606

August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: June 28, 1999

Decided: September 01, 1999

Appeal from a judgment of the United States District Court for the Western District of New York, convicting defendant of mail fraud, Hobbs Act, and conspiracy offenses in connection with subcontractor's underpayment of wages, 18 U.S.C. §§1341, 1951, 371.

Affirmed.

[Copyrighted Material Omitted] MARTIN J. LITTLEFIELD, Assistant United States Attorney, Buffalo, New York (Denise E. O'Donnell, United States Attorney for the Western District of New York, Buffalo, New York, on the brief), for Appellee.

VINCENT E. DOYLE III, Buffalo, New York (Connors & Vilardo, Buffalo, New York on the brief), for Defendant-Appellant.

Before: KEARSE, STRAUB, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Jabril Shareef appeals from a judgment entered in the United States District Court for the Western District of New York following a jury trial before William M. Skretny, Judge, convicting him of extortion and attempted extortion, in violation of 18 U.S.C. §1951 (1994) (the "Hobbs Act"), mail fraud, in violation of 18 U.S.C. §1341 (1994), and conspiracy to commit mail fraud, in violation of 18 U.S.C. §371 (1994). Shareef was sentenced principally to 30 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, he contends principally that the government failed to present sufficient evidence to prove the interstate commerce element of a Hobbs Act offense. He also contends that he received constitutionally ineffective assistance from his trial counsel, that he was denied a fair trial by reason of prosecutorial misconduct, and that his sentence was improperly enhanced on the ground that he committed perjury at trial. For the reasons that follow, we find no basis for reversal.

I. BACKGROUND

The present prosecution arose out of a 1991-92 contract for the interior demolition of city buildings in Buffalo, New York (the "Buffalo project"). The contract was put out for bids by the State of New York in cooperation with the Buffalo Municipal Housing Authority. Bidders were required to ensure, inter alia, that all employees would be paid New York's "Prevailing Wage Rate." By statute, New York requires contractors on public work projects to pay "laborers, workmen or mechanics" at least the prevailing rate of wages. N.Y. Labor L. §220(3) (McKinney Supp. 1999). The prevailing rate of wages is "the rate of wage paid in the locality ... by virtue of collective bargaining agreements between bona fide labor organizations and employers of the private sector ... in the same trade or occupation." N.Y. Labor L. §220(5)(a). The contract was awarded to Integrated Waste Special Services ("IWSS") as general contractor; IWSS subcontracted part of the work to a business owned by Shareef. Shareef was informed that employees must be paid the Prevailing Wage Rate.

Shareef and his business associate James Nelson, who supervised Shareef's work crews on the Buffalo project, were charged with failing to pay Shareef's laborers the Prevailing Wage Rate, by means of conduct that violated, inter alia, the Hobbs Act, 18 U.S.C. §1951. The Hobbs Act substantive count of the indictment alleged that Shareef and Nelson

did knowingly, willfully and unlawfully obstruct, delay and affect interstate commerce and the movement of articles and commodities in interstate commerce by extortion, and did attempt to do so, in that the defendants did unlawfully take and obtain property, namely money, from persons, namely employee laborers, with their consent, such consent being induced by the wrongful use of fear of economic loss.

The evidence at the joint trial of Shareef and Nelson, taken in the light most favorable to the government, included testimony by Shareef's office manager and by more than a dozen of his laborers on the Buffalo project that instead of paying each laborer the required gross wage of $21.89 per hour, Shareef paid them $6-to-$10 per hour. Shareef forced the laborers to endorse their paychecks without reading the amounts, and he then paid them in cash at the lower rates. When employees complained to Shareef that they were being underpaid, he threatened to fire them.

Shareef, in his own defense, testified, inter alia, that he had believed everyone on the Buffalo project was being paid $21.89 per hour; that all of the employees were paid by check and no one received cash; and that no laborer ever complained to him about being underpaid. Nelson also testified in his own defense; he denied any knowing involvement in the extortion and fraud. On cross-examination by the government, Nelson admitted having stated to law enforcement agents that he had participated in the fraud and that Shareef had devised the fraudulent scheme; Nelson testified that that statement was true.

The jury convicted both defendants on all counts, to wit, mail fraud, Hobbs Act extortion, and conspiracy to commit those offenses. Shareef was sentenced as indicated above, and this appeal followed.

II. DISCUSSION

On appeal, Shareef challenges the sufficiency of the evidence to support his conviction of Hobbs Act extortion, contending that the government failed to prove the requisite effect on interstate commerce. Shareef also contends that his trial counsel rendered ineffective assistance by not moving for a severance of his trial from that of Nelson; that the Assistant United States Attorney ("AUSA") deprived him of a fair trial by posing improper questions to him on cross-examination and making unfair arguments in summation; and that the district court improperly enhanced his sentence by increasing his offense level on the ground that his trial testimony was perjurious. We reject all of these contentions.

A. Sufficiency of the Evidence of Interstate Commerce

Shareef advances several contentions in support of his challenge to the sufficiency of the evidence to establish the interstate commerce element of the substantive Hobbs Act charge against him. He contends principally (a) that because the indictment "charged that Shareef affected interstate commerce by obtaining money from the laborers," the government was required to prove "that it was the theft of money from the laborers that affected interstate commerce" (Shareef brief on appeal at 16), but that there was no proof of such a direct effect, for Shareef's "company and all of its employees were New York State residents," and "[n]one of the laborers, who were the victims of the alleged extortion, testified that they had any connection to interstate commerce" (id. at 9); (b) that the government could not be permitted to satisfy its burden by proving instead an impact on IWSS because, Shareef argues, that proof would constitute an impermissible variance from the indictment; and (c) that, in any event, the evidence as to the impact on IWSS was insufficient because no "actual[ e]ffect" on IWSS was shown (id. at 10; see also id. at 17 ("IWSS [did not] offer any evidence of any ... injury that it, in fact, suffered")), and a potential effect is, he contends, insufficient to support a substantive Hobbs Act charge. We reject these contentions, which are based on misconceptions of Hobbs Act principles.

The Hobbs Act, to the extent pertinent here, makes it unlawful "in any way or degree" to "obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery or extortion" or to "attempt[] or conspire[] so to do." 18 U.S.C. §1951(a). As recently discussed by this Court in United States v. Arena, 180 F.3d 380 (2d Cir. Jun. 7, 1999) ("Arena"), although a Hobbs Act conviction cannot be sustained if the government failed to prove that "'commerce [wa]s affected,'" Arena, 180 F.3d at 389 (quoting Stirone v. United States, 361 U.S. 212, 218 (1960)), "it is well established that the burden of proving such a nexus is 'de minimis,'" Arena, 180 F.3d at 389 (quoting United States v. Farrish, 122 F.3d 146, 148 (2d Cir. 1997), cert. denied, 118 S. Ct. 1056 (1998)). "'Even a potential or subtle effect on commerce will suffice.'" Arena, 1999 180 F.3d at 389 (quoting United States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982)) (emphasis ours); see, e.g., Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d Cir. 1991) ("any interference with or effect upon interstate commerce, whether slight, subtle or even potential ... is sufficient to uphold a prosecution under the Hobbs Act").

Although Shareef argues that proof of a potential effect on commerce suffices only with respect to a charge of Hobbs Act conspiracy, not a charge of substantive violation, he is mistaken. We have applied the above principles in upholding convictions not only for conspiracy, see, e.g., Arena, 180 F.3d at 389-90, but also for Hobbs Act substantive offenses, see, e.g., id.; United States v. Farrish, 122 F.3d at 148; United States v. Angelilli, 660 F.2d at 35. Accordingly, Shareef's contention that only an actual, not a potential, effect on commerce can suffice to sustain a substantive Hobbs Act charge is squarely contradicted by our precedents.

Further, "[w]e have never held that an indictment alleging a violation of the Hobbs Act must specify the precise nature of the effect upon interstate commerce that the government intends to prove at trial ...." United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). Nor need the government prove that the impact on interstate commerce was intentional, see, e.g., United States v. Daley, 564 F.2d 645, 649 (2d Cir. 1977) (proof of intent to interfere with interstate commerce unnecessary where such interference was one of the natural effects of the offense), cert. denied, 435 U.S. 933 (1978), or that the effect on commerce was direct rather than indirect, see, e.g., United...