United States v. Biondo

• Decision Date: 21 August 1973
• Docket Number: No. 73-1003 and 73-1004.,73-1003 and 73-1004.
• Citation: 483 F.2d 635
• Parties: UNITED STATES of America, Appellee. v. Dominic BIONDO and Willie Francisco Orlando, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

483 F.2d 635 (1973)

UNITED STATES of America, Appellee. v. Dominic BIONDO and Willie Francisco Orlando, Appellants.

Nos. 73-1003 and 73-1004.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1973.

Decided August 21, 1973.

Rehearing and Rehearing Denied September 27, 1973.

COPYRIGHT MATERIAL OMITTED

Irl B. Baris, Newmark & Baris, St. Louis, Mo., for appellants.

Peter M. Shannon, Jr., Dept. of Justice, Washington, D. C., for appellee.

Before Mr. Justice CLARK,^* HEANEY, Circuit Judge, and SCHATZ, District Judge.^**

Rehearing and Rehearing En Banc Denied September 27, 1973.

SCHATZ, District Judge.

Appellants, Dominic Biondo and Willie Francisco Orlando, were convicted of conspiracy to extort money in violation of the Hobbs Act (18 U.S.C. § 1951). A two-count indictment had been returned in the United States District Court for the Eastern District of Missouri charging Biondo and Orlando and two co-defendants, Joseph Anthony Scalise and Anthony Michael Accardi, with having obstructed, delayed and affected interstate commerce (Count One) and having conspired to obstruct, delay and affect interstate commerce (Count Two) by demanding an extortion payment of $15,000 and accepting a partial extortion payment of $5,000 from one Joseph Wozniak who had entered into a business arrangement with Accardi in the operation of three fruit and produce markets within the St. Louis area. Thereafter, Biondo, Orlando and Scalise were tried by a jury and following dismissal of Count One at the close of the government's case in chief, Biondo and Orlando were convicted on Count Two and sentenced to five years imprisonment. Defendant Scalise was acquitted. The indictment of defendant Accardi, who had requested and was granted severance prior to trial, was subsequently dismissed.

The issues presented here are: (1) whether the evidence was sufficient to show that appellants conspired to obtain money by extortion in violation of the Hobbs Act, supra; (2) whether the trial court erred in permitting a fatal variance between the indictment and the evidence; (3) whether appellants' rights under the Jencks Act (18 U.S.C. § 3500) were violated; (4) whether admission of appellant Orlando's statement, given subsequent to his refusal to sign a waiver of rights form, was proper; (5) whether severance of co-defendant Accardi deprived appellants of their rights of due process under the Fifth Amendment, and their rights to compulsory process for witnesses under the Sixth Amendment; (6) whether the court erred concerning the admissibility of certain evidence; (7) whether the trial court erred in denying appellants' motion for a mistrial based upon a comment made by the prosecutor during his closing argument.

We affirm the judgments of conviction for reasons set forth hereafter.

Joseph Wozniak, age seventy, the victim of the purported conspiracy to extort money in violation of the Hobbs Act, had entered into a business arrangement with defendant Anthony Accardi whereby three fruit and produce markets were to be operated within the St. Louis area, namely, Tony's Colonial Market No. 1, Colonial Fruit Market No. 2, and the Woodson Market. Appellants Orlando and Biondo were employees at the markets. On May 18, 1971, Wozniak met with Orlando and Scalise and was informed that Biondo wanted a payment of $15,000 in cash from Wozniak, under threat of harm to his family and to his business interests. In this connection it was threatened that Biondo would run up bills at one of the markets, Colonial No. 2, for which Wozniak would be responsible. So far as the business arrangement is concerned between Wozniak and Accardi, the evidence shows that Colonial Market No. 1 was purchased by Accardi in September of 1970 with $20,000 advanced to him by Wozniak with no written agreement or contract. The Woodson Market was purchased by Wozniak in November of 1970 for $2,000 cash in order to expand Wozniak's and Accardi's fruit and vegetable business. On December 30, 1970, the Colonial Market No. 2 was purchased for $6,000, which sum was supplied by Wozniak. Wozniak signed the lease for Colonial No. 2 and paid an additional $1,450 as a security deposit and rent. Accardi managed the day-to-day operation of Colonial No. 2 and appellant Orlando managed Colonial No. 1 commencing in the fall of 1970. Scalise was one of Orlando's employees as was Biondo. Accardi, besides running the day-to-day operation of Colonial No. 2, also was in charge of Colonial No. 1, where Orlando was the manager. Wozniak visited Colonial No. 1 every day and made decisions, from time to time, as to the operation of this market. Wozniak participated in checking the inventory at the Woodson Market and took in the weekly receipts. At Colonial No. 2, Wozniak sometimes sold produce and at one time installed a lighting system in this market. In February of 1971, Wozniak was obliged to pay for bills which Accardi had failed to pay at Colonial No. 1 and at one time Wozniak was sued by the telephone company for an unpaid telephone bill at one of the markets, either Colonial No. 1 or Colonial No. 2.

Colonial Markets 1 and 2 sold the same products and the same type of produce, substantial quantities of the same having been brought into Missouri from Illinois and other states.

Following the May 18, 1971, meeting of Wozniak, Orlando and Scalise, Wozniak received a telephone call from Biondo, May 19, 1971, again threatening Wozniak's family if the money were not delivered that night. Meanwhile the evidence clearly shows that Orlando, who Wozniak thought was his friend and advisor, was urging Wozniak to pay Biondo the money in order to try to get Biondo on Wozniak's side, and Orlando assured Wozniak that Biondo would not require him to pay any more money if he would pay the $15,000.

Wozniak met with Orlando and Biondo on the evening of May 20, 1971, and stated that he could not raise the entire sum. On May 21, 1971, Wozniak received two telephone calls from Orlando which were monitored by F.B.I. agents with Wozniak's permission (on May 18, 1971, following the initial demand of $15,000, Wozniak had reported the entire matter to the F.B.I.). In these conversations, Wozniak stated that he could raise only $5,000 that day and Orlando, after contacting Biondo, told Wozniak to bring the $5,000 to a designated parking lot at 3:30 p. m. and to get the rest of the money by the following Monday. As scheduled at 3:30 p. m., Wozniak met with appellants and handed Biondo an envelope containing $5,000. This meeting was monitored and observed by F. B.I. agents and appellants Biondo and Orlando were arrested at the parking lot immediately after Wozniak's payment.

We proceed to the issues which appellants have presented for review.

1) Appellants contend that the court erred in submitting the cause to the jury because the prosecution failed to make a submissible case against appellants for the reasons that there was no evidence that Wozniak had an ownership interest in the fruit stand, there was no evidence that Wozniak was fearful of the economic well-being of the fruit stand, and there was no evidence of an effect upon interstate commerce because there was no evidence the fruit stand was engaged in interstate commerce. We disagree. The evidence, which must be viewed in a light most favorable to the prevailing party, shows that Wozniak advanced the $20,000 to Accardi in order to buy a garbage disposal business. Instead, a fruit and produce stand known as Colonial No. 1 was purchased. Wozniak made frequent trips to the stand and participated in some of the operational decisions. The business was expanded by the purchase of two other markets including Colonial No. 2 which Wozniak paid for. He installed a lighting system and participated in the day-to-day operations of this store. He also advanced an additional $9,363 for Colonial No. 1 and paid some of the bills for both Colonial No. 1 and No. 2.

It is not necessary to precisely characterize Wozniak's relationship as owner, partner, joint venturer, or guarantor because the evidence clearly shows that Wozniak had a definite financial interest in the business and was not a mere personal creditor. The Hobbs Act, supra, does not require the victim to be an "owner" of a business involved in interstate commerce. Rather, it seeks to prevent harm to interstate commerce. By directing their threats against Wozniak's financial interest in the business, appellants, in effect, threatened the entire business. Had the threats been carried out, the resources of the business would have depleted and diminished and interstate commerce would have been affected and obstructed. The law is well settled in this regard. See United States v. Amabile, 395 F.2d 47, 49 (7th Cir. 1968), vacated and remanded on other grounds sub nom, Giorando v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), where it was held that the depletion of an individual's personal assets in this context would amount to an obstruction of the business.

Further, Wozniak's family was threatened and we view these threats in the overall light in which they arose. When the threats to the economic well being of the business, that is, running up bills of $100,000 which Wozniak would have to pay, were combined with threats to the safety of Wozniak's family, the evidence clearly supports the conclusion that the threats were directed against the financial interest of Wozniak. A business may be threatened through the people who operate it and a threat toward the financial interest in a business is clearly harmful to that business and, consequently, is violative of the Hobbs Act. See United States v. Augello, 451 F.2d 1167 (2nd Cir. 1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802 (1972).

Appellants also argue that there was no effect upon interstate commerce here because there was no proof that the fruit stand was engaged in interstate commerce, theorizing that there was but "slight...