United States v. De Cavalcante

Decision Date10 March 1971
Docket NumberNo. 19310-19312.,19310-19312.
Citation440 F.2d 1264
PartiesUNITED STATES of America v. Samuel Rizzo DE CAVALCANTE, Appellant in No. 19310, Gaetano Dominick Vastola and Daniel Annunziata. Appeal of Gaetano Dominick VASTOLA, in No. 19,311. Appeal of Daniel ANNUNZIATA, in No. 19,312.
CourtU.S. Court of Appeals — Third Circuit


Leon H. Kline, Philadelphia, Pa., for appellant Samuel Rizzo De Cavalcante.

Querques, Isles & Weissbard, Orange, N. J., for appellants Gaetano Dominick Vastola and Daniel Annunziata; Michael A. Querques, Orange, N. J., of counsel.

George J. Koelzer, Asst. U. S. Atty., Newark, N. J., for appellee.

Before ALDISERT, ADAMS and ROSENN, Circuit Judges.


ADAMS, Circuit Judge.

The three appellants here were convicted of a conspiracy1 to extort in violation of 18 U.S.C. § 1952,2 and De Cavalcante was also convicted on two counts alleging substantive violations of § 1952. The events alleged to constitute the crimes occurred in the latter part of 1966. The defendants were indicted on May 22, 1968, and were tried in September, 1970. After an eight-day trial before a jury, the defendants were found guilty. De Cavalcante received the maximum sentence of three consecutive terms of imprisonment of five years each; Vastola received a single term of five years; Annunziata received a term of three years.

On this appeal the appellants have raised a number of significant issues, but we find it necessary to deal only with three of them: whether interstate travel by the victims of a crime is sufficient to satisfy the travel requirements of 18 U.S.C. § 1952; whether the prosecution improperly altered the indictment in this case; and whether the defendants were entitled to judgments of acquittal on the conspiracy count.

The facts may be summarized as follows. In September, 1966, Thomas Coogan, Kenneth Martin, Morris Wasserman, James Smith, James Brennan, and Patrick Dello Russo were conducting illegal gambling — using crooked dice — at the Americana Motel in Trevose, Pennsylvania. Defendants Vastola and Annunziata heard of this gambling, went to Trevose on September 27th, and engaged the other six men in a short dice game. After losing a few hundred dollars, Vastola complained of the small amount of bets, threw what was purported to be $10,000 in cash on the table, and said he and Annunziata would be back the following evening to play for higher stakes.

The next night the eight men proceeded to use legitimate dice for about ten minutes. At that point Smith alerted his cohorts that he was about to introduce the crooked dice by giving to Brennan the agreed upon signal: "It's up to you." But before the dice were thrown, Vastola and Annunziata drew their revolvers and ordered everyone not to move. Vastola told the gamblers that he had heard they were robbing "his people" from New York and he was now going to rob them. While Annunziata held the others at gunpoint, Vastola took $2,800 from the gamblers, demanded $300 per week from them, and took the "crooked dice" to show "his people" how they had been cheated.

After Vastola and Annunziata left the American Motel, Brennan told the others he would ask De Cavalcante to help them settle the dispute. On September 30th, the six men met with De Cavalcante and Vastola at De Cavalcante's office in Kenilworth, New Jersey. De Cavalcante stated that Vastola had told him that he wanted $20,000 from the gamblers, and that he thought Vastola had a "legitimate complaint." When Vastola began shouting at the gamblers, De Cavalcante told Vastola to calm down and left the room with him. Upon returning to the room alone, De Cavalcante said he had persuaded Vastola to accept $12,000 in "settlement" from the gamblers. When Vastola then demanded cash payment, the gamblers complained of not having that much money. De Cavalcante told them he would pay Vastola directly for them, and that they could then pay him back. De Cavalcante sent Dello Russo to see a money lender in Brooklyn for his part of the repayment, and said Brennan could deduct his share from money which De Cavalcante owed him. On October 1, 1966, Martin and Smith met De Cavalcante at Swift's Colonial Diner in Trenton, and paid him $3,000. Further payments of $400 each were made to De Cavalcante in New Jersey on October 12th and on October 26th, but no separate crime is charged regarding their last two payments.

On October 1st, the Philadelphia office of the Federal Bureau of Investigation received an anonymous telephone call indicating that the six gamblers were being extorted. A federal grand jury was convened on October 26th to investigate the charges and eventually brought the indictments in this case.

The Government's theory is that Brennan and Dello Russo were in conspiracy with De Cavalcante, Vastola and Annunziata to extort money from the Philadelphia gamblers. The defense answers that while Vastola and Annunziata certainly committed the crime of robbery in Trevose, no federal statute was thereby violated. They argue that the evidence does not show any conspiracy, and that De Cavalcante was merely a friendly arbitrator in a dispute between two groups of hoodlums — a role which, however unsavory, does not amount to a violation of 18 U.S.C. § 1952.

A. Sufficiency of the Indictment

Each of the three counts of the indictment charged in substance as follows: that De Cavalcante "did wilfully aid, abet, counsel, command, induce, procure, and cause Thomas Coogan, Morris Wasserman, Kenneth Martin and James Marion Smith to travel in interstate commerce * * * with intent to promote, manage, establish, carry on, and facilitate * * * extortion * * *" (emphasis added).

The problem here arises because rather than being confederates, Coogan, Wasserman, Martin and Smith were the victims of the alleged crime. The first question presented therefore is whether a crime has been charged under 18 U.S. C. § 1952 when the interstate travel in question is by the victims of the extortion rather than by the alleged extorters.

Standing alone, § 1952 is not violated by such travel. However, for unexplained reasons, the Government chose to use the aiding and abetting language of 18 U.S.C. § 2:

"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."

Since one cannot aid and abet someone to do an innocent act within the meaning of § 2(a), see e.g., United States v. Provenzano, 334 F.2d 678, 691 (3rd Cir. 1964), the Government argues for the application of § 2(b) to this case, based upon the inclusion in the indictment of the words "did * * * cause."

Applying § 2(b) to § 1952 in effect makes possible the separation of the travel requirement from either the intent or overt act requirements. Such separation causes both semantical and conceptual problems in applying § 1952. However, the Committee on the Judiciary made clear when Title 18, United States Code was revised and codified that § 2(b) was to make culpable one who "causes the commission of an indispensable element of the offense by an innocent agent or instrumentality. * * *" H.R.Rep. No. 304, 80th Cong., 1st Sess. A5 (1947). Indeed, Dyer Act prosecutions for interstate transportation of stolen automobiles, while not squarely in point, often invoke this principle. E.g., United States v. Leggett, 269 F.2d 35 (7th Cir. 1959). Similarly, in United States v. Kelley, 395 F.2d 727 (2d Cir. 1968), a bookmaker was found guilty — on the basis of § 2(b) — of violating § 1952 where the only use of interstate commerce was by prospective bettors calling the bookmaker on the telephone. It is true that in both Leggett and Kelley the interstate travel element was provided by the actions of one who, while innocent of a crime, could be viewed as the alter ego of the criminal. But use of the word "causes" in the statute conveys an intent sufficiently broad to encompass not only voluntary acts of true agents, but also the involuntary acts of victims. Although the Government has pointed to no case in which actions of a victim were alleged to provide one element of the crime charged under § 1952, and although the indictment in this case was no doubt in-artfully drawn, we find the allegations in the indictment here to be sufficient to charge a crime under § 1952.3

B. Amendment of the Indictment

An equally significant attack is made by the defendants upon what they view as a major difference in the theory of the crime as charged by the grand jury, and the premise upon which the defendants were convicted. The conspiracy count of the indictment charged as follows:

"From on or about September 27, 1966, to on or about November 16, 1966, in the State and District of New Jersey and elsewhere, the defendants SAMUEL RIZZO DE CAVALCANTE, GAETANO DOMINICK VASTOLA, and DANIEL ANNUNZIATA unlawfully, wilfully, and knowingly did combine, conspire, confederate, and agree together and with each other, and with divers other persons whose names are to the Grand Jury unknown, to commit offenses against the United States, * * *" (emphasis added).

The grand jury handed down this indictment on March 22, 1968. The defendants, in late April, moved for discovery and a bill of particulars, asking for, among other things, the names of all alleged co-conspirators, including specifically those denominated in the indictment as "divers other persons." On May 15, 1968, the United States replied "that it does not know the identity of any co-conspirators not named in Count One of the indictment." A similar statement was made by the Government on November 10, 1969 — eighteen months later — at a hearing on defendants' discovery motions....

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