U.S. v. Zappola, s. 910
| Decision Date | 30 April 1982 |
| Docket Number | Nos. 910,911,D,s. 910 |
| Citation | 677 F.2d 264 |
| Parties | 10 Fed. R. Evid. Serv. 572 UNITED STATES of America, Appellee, v. George ZAPPOLA and Robert Melli, Defendants-Appellants. ockets 81-1488, 81-1490. |
| Court | U.S. Court of Appeals — Second Circuit |
Anne C. Feigus, New York City (Ronald P. Fischetti, New York City, of counsel), for defendant-appellant Robert Melli.
Paul B. Bergman, New York City (LaRossa, Brownstein & Mitchell, New York City, of counsel), for defendant-appellant George Zappola.
Thomas Fitzpatrick, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., S.D.N.Y., Gerard E. Lynch, Mark F. Pomerantz, Asst. U. S. Attys., New York City, of counsel), for appellee.
Before LUMBARD and OAKES, Circuit Judges, and FRIEDMAN, Chief Judge, Court of Claims. *
This appeal turns on whether defendants, charged with attempted extortion and conspiracy to extort, may assert, as a defense, that their demands for compensation for business losses caused by their intended victims were made in the reasonable belief that the victims owed them such compensation. We hold that the district court did not err in refusing to charge that such reasonable belief is a defense. The defendants, George Zappola and Robert Melli, were convicted in the Southern District of New York, Haight, J., of attempted extortion in violation of the Hobbs Act, 18 U.S.C. §§ 1951 & 2 (1976), following a ten-day jury trial that ended on October 21, 1981. On December 11, 1981, the court sentenced Zappola to nine years imprisonment and Melli to six years. Finding no error, we affirm.
George Zappola and Robert Melli owned and operated the M&R Repair Co. ("M& R"), which repaired containers for shipping companies at its lot in Newark, New Jersey. Its largest client was Japan Line, Inc., a large shipping company centered in Port Newark. In 1976 and 1977, the containers were delivered to M& R by World Trade, Inc., a trucking company owned by John Marano, William Ross, and Harold Hagy. At the direction of Japan Line, World Trade would move containers and container chassis to and from piers, railyards, and repair and depot facilities.
In early 1977, World Trade stopped delivering containers to M&R for repair work, and began sending them to a competing shop, Maher Terminals. There is some evidence that the diversion of Japan Line containers was directed by Marano, whose son-in-law, Joseph DeNicholas, and former employee, Louis Fenza, both worked at Japan Line. Meanwhile, Marano surreptitiously approached Japan Line with a proposal to start a joint venture to do Japan Line's storage and repair work. He had previously discussed a joint venture with Zappola.
In May of 1977, Zappola began to notice the sharp drop in business in his yard. He called Marano to ask if he knew why containers were no longer being delivered to M&R and Marano replied that the World Trade simply brought the containers wherever Japan Line directed.
On June 6, 1977, Marano received a call asking him and Ross to come to M&R. Marano and Ross went over to the M&R office, which was in a trailer in the M&R repair yard. Zappola and Melli were waiting for them in the back room. Zappola began cursing and yelling, accusing them of stealing his business by diverting containers to another facility. Zappola claimed that as a result he had lost $38,000. Pulling a gun on Marano, Zappola said, "You're the SOB that's doing it."
Marano denied the accusations, but Zappola was not appeased. He smashed Marano in the face, sending Marano's glasses flying and cracking a tooth. As Marano tried to stem the flow of blood from his mouth and nose, Zappola demanded that Marano and Ross make good M&R's losses from the diverted containers. Crying, pleading, Marano tried to explain that the decision to divert the containers was Japan Line's and he had nothing to do with it. Zappola called him a liar, fired the gun into the wall, and smashed Marano in the face again, almost knocking him out of the chair.
Before releasing Marano and Ross, Zappola turned to Melli and asked him to search the two to see if they were "wired," adding that if they were, "I'll kill them right now."
Satisfied that his message had been delivered, Zappola told the two to get out while they still could. "We'll be in touch," was his parting shot.
Marano reported this conversation to the FBI, with whom he had been cooperating in an unrelated matter. The FBI monitored Marano's future contacts with the defendants.
On Wednesday, June 22, 1977, Marano and Melli met at the Holiday Inn in Jersey City. Melli demanded that Ross and Marano pay him and Zappola $39,000 "by Friday" and implicitly threatened them with violence if they failed to pay up. He began with the claim that
Melli made it perfectly clear that he expected Marano and Ross to make good M& R's loss: Nor did he shy away from suggesting the consequences of not paying:
Melli also noted that Zappola had not even wanted him to come and speak with Marano, and implied that he was doing Marano a favor by giving this last warning: By contrast, Melli acted like a nice guy: "(I'm) gonna give you the courtesy to come down and say what I gotta say, and that's it." However, Melli was not negotiating, but delivering an ultimatum: If Marano and Ross wanted to
In the same conversation, Melli warned Marano to tell Ross to keep Ross's two sons away from the M&R yard, where they apparently had caused some trouble. Melli tied the threats to Ross's sons with the demands for the $39,000: And again:
Melli concluded with a thinly veiled threat: if Marano and Ross failed to pay by Friday, "Whoever's left will take care of it."
In the next few days Marano spoke three times on the phone with Zappola. Each time Zappola repeated his claims that Marano had stolen business from M&R. However, Zappola was very circumspect on the phone, making no outright threats or demands for money. He said things like, "I'm still not gonna sit still for it." "Don't mistake my kindness for weakness, John." But when Marano asked, Zappola answered, When Marano told Zappola that Melli had asked for $40,000 and complained that he couldn't raise that kind of cash, Zappola replied, "If you would have did it the right way I would have given you the shirt off my back."
Zappola, Melli, Marano, and Ross next met on Monday, June 27, 1977, at Ponte's Restaurant near the docks on New York's lower West Side. Zappola again claimed that Marano was responsible for M&R's losses, adding that "the clock was still running and now it's up to $42,000 that (Marano and Ross) owed him." Marano and Ross tried unsuccessfully to convince the defendants that they were not responsible for the diversion of the containers from M&R. As the meeting ended, Melli said, "It's $40,000 and we want it by Friday." Zappola added, "We'll be in touch."
Neither defendant took the stand at trial. The defense produced witnesses to support the claim that Marano was stealing M&R's repair business and to rebut the testimony that Zappola fired a gun in the M&R trailer.
The critical issue for the district court was the charge on wrongfulness. In the first trial of these defendants, Judge Sand, over government objection, charged that the jury must acquit if it found that the defendants reasonably believed they were legally entitled to the money they demanded from Marano and Ross. In spite of the favorable charge, the defendants were convicted on two counts each, but we reversed, holding it was error for the district court to rule that a potential witness was unavailable. 646 F.2d 48 (2d Cir. 1981). At the retrial, Judge Haight ruled in the government's favor on the issue of wrongfulness, holding in a memorandum opinion entered on September 29, 1981, that "unless a labor union is involved, the use or threat of force or violence brings the case within the Hobbs Act, and it matters not whether the defendant had, or believed he had, a right to the property which came into his hands as the result of such persuasion." 523 F.Supp. 362, 366. Judge Haight declined to give the charge that Judge Sand had given, instead charging the jury as follows:
(I)f you find that the government has proved beyond a reasonable doubt that a particular defendant used or threatened force or violence or attempted to induce fear for the prohibited purpose of obtaining money with his victim's consent, then the element of wrongfulness has been satisfied and in that circumstances it makes no...
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