United States v. Compagna

• Decision Date: 02 April 1945
• Docket Number: No. 103.,103.
• Citation: 146 F.2d 524
• Parties: UNITED STATES v. COMPAGNA et al.
• Court: U.S. Court of Appeals — Second Circuit

146 F.2d 524 (1944)

UNITED STATES v. COMPAGNA et al.

No. 103.

Circuit Court of Appeals, Second Circuit.

December 20, 1944.

Writ of Certiorari Denied April 2, 1945.

William Scott Stewart, of Chicago, Ill., for appellants Compagna, deLucia, D'Andrea, Gioe, and Rosselli.

J. Bertram Wegman, of New York City, and Harold Simandl, of Newark, N. J. (Emanuel H. Reichart, of New York City, of counsel), for appellant Louis Kaufman.

Vito Marcantonio, of New York City, for appellant Maritote.

Francis Biddle, Atty. Gen., and Boris Kostelanetz, Sp. Asst. to the Atty. Gen., of New York City (Raymond P. Whearty and Amedeo L. Lauritano, Asst. U. S. Atty., both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

Writ of Certiorari Denied April 2, 1945. See 65 S.Ct. 912.

L. HAND, Circuit Judge.

Compagna and six others have appealed from convictions for violation of subdivision (d) of § 420a, Title 18 U.S.C.A.: a conspiracy to extort money from producers and exhibitors of moving pictures during the years 1935 to 1940. They rely upon some twenty assignments of error, of which the first and the most important is that there was not enough evidence to support the verdict. Since the case against Kaufman is somewhat different from that against the rest, we will reserve consideration of his appeal until we have disposed of those of the others. The only other alleged errors of any consequence concern the general conduct of the trial: e. g., the admission of supposedly incompetent evidence, the judge's charge, the prosecutor's misconduct, and the fact that the judge spoke to the jury out of court after they had retired. For a discussion of the constitutionality of the statute — also an assigned error — we need only refer to Nick v. United States, 8 Cir., 122 F.2d 660, 138 A.L.R. 791.

To an intelligent understanding of the appeal, it is necessary to give an outline of the general venture in which the accused were involved, as the jury might have found it from the testimony. The fabric of this was woven out of the testimony of two accomplices — Bioff and Browne; particularly that of Bioff, a man with a long, discreditable and criminal past, confessedly guilty of perjury in an earlier examination of the same transactions here in question. Their story was in substance as follows. Browne had been a member and business agent for the Chicago local of an international trade union of stage hands and moving picture machine operators, which covered the United States and Canada. In 1932 he ran for president of the union and was defeated. Shortly thereafter he met Bioff, who already knew the accused and others of their kind and had engaged in illicit operations with them. The record does not definitely disclose the nature of the original association of these two men, but a jury might find it too to have been illicit. In any event, they made more money than they had been used to having and spent it freely enough to attract the attention of one Circella, who kept a night club in Chicago, and who was one of a group, or gang, of confederates who lived by blackmail. The cupidity of these men became aroused by this news; and, after preliminaries unnecessary to detail, they forced upon Browne and Bioff an agreement by which they should receive, first one-half and, later two-thirds of all that the two might collect from moving picture exhibitors. Among the confederates were, not only the appellants here, but a number of others — among them, Circella, already mentioned. The first step was to elect Browne president of the union, in which they succeeded. Circella and Bioff were then given offices in the union as personal representatives of Browne, as president, and both drew salaries. Early in 1935 all had been arranged, and Bioff and Browne, who were to be the spearheads, began to blackmail exhibitors of moving pictures in Chicago. So far as appears, they did not expressly threaten violence, but confined themselves to a pretence of union activity; that is, they threatened to call strikes against their victims unless they were plentifully paid. Among their earliest victims was an exhibitor in Chicago, one Barger, who operated a small theatre, and whom Bioff forced to share equally with him all Barger's profits. Later, by the same pressure, Bioff imposed upon this unfortunate man as employees: first, Maritote, and later, D'Andrea, neither of whom rendered any services whatever, but who were paid $175 a week and later, $200. By the autumn of 1935 the enterprise had apparently become so profitable that Bioff extended it to New York. One Basson was the local agent of the New York local, and had undertaken negotiations for a wage increase with some large exhibitors in that city, with the threat of a strike as a sanction; but Bioff, speaking for Browne, without whose consent no strike was regular, intervened and upon the payment of $150,000 from the exhibitors collectively, refused to permit the strike.

Until the beginning of 1936, the collections had all been from exhibitors, either in Chicago or New York, but early in that year the group decided to include producers, who, as is well known, produce films for the most part in California. It had been the custom of the industry to have an annual meeting each year in New York between representatives of the various unions in the industry and of the producers; and in 1936 Bioff went to this meeting and met Schenck, a representative of a large producer. Bioff threatened to close up the theatres of exhibitors throughout the country unless Schenck could raise a very large sum from the producers generally. After some higgling, the two finally agreed upon a schedule, or tariff, by which the larger producers were each to pay annually $50,000; and the smaller, $25,000. The group found the threat of a strike against the theatres more effective a sanction than a strike against the producers themselves; for, by stopping the outlets they could entirely paralyze the production of films. The arrangement so concluded lasted almost until the indictment was filed on March 18, 1943, and resulted in the collection of over $600,000, in addition to nearly $500,000 collected from exhibitors.

The evidence connected all the accused now at bar with this undertaking, although for the most part this was through the testimony of Bioff, corroborated in some degree by Browne. As is so often the case in criminal appeals, we are asked to reverse the conviction because the testimony on which the verdict was based was incredible; as always, we reply that that question is not for us, but for the jury. If, viewing the situation as a whole, they chose to believe Bioff, their conclusion was final. Coming to the individuals separately, nothing need be said about Compagna; Bioff connected him with the venture in the most direct way; apparently he was the chief. To deLucia Bioff repeatedly paid part of the blackmail; and, on occasion, he did the same to Gioe, though not so often. Circella introduced Rosselli to Bioff as the representative of the group in California; Bioff arranged to pay him a part of the money extracted from the producers in that state, though the payments were disguised by bookkeeping designed to hide the nature of the transaction. As we have already said, Maritote and D'Andrea were given sinecures in the business of Barger, at weekly payments of from $175 to $200. It was impossible to doubt — nothing being shown to the contrary — that men, receiving such payments in such a way, were privies to the scheme. They could not have supposed that they were bona fide employees of Barger; nor is it tenable to assume that a ruthless and grasping crew of blackmailers would provide soft berths for subordinates who were ignorant of the general nature of the undertaking of which they were the beneficiaries. We start therefore with the hypothesis that all of the accused now at bar were parties to a blackmailing conspiracy of wide scope, long duration, and vast returns.

It is apparent that such a conspiracy was within the statute, provided that the threats used to extort the money were "coercion," as defined in subdivision (a) of § 420a; and provided further that the extortion was "in connection with" an act "affecting" interstate commerce. To take up the second point first, it was enough proof of the effect of their acts upon interstate commerce, that the group found it more effective, when they were blackmailing the producers, to threaten them with a strike against the theatres. Nothing could more completely illustrate the unity of the whole industry; all its parts were like those of a single elastic member in which an impact upon one part is instantly transmitted everywhere. Moreover, not only would the producers feel the check upon the interstate movements of their films when the exhibitors were tied up; but since many of the exhibitors did business on a small margin, and must have a constant supply of films to keep going at all, a very short cessation of that supply at the sources might destroy them, and end them forever as outlets. If these were the facts, the business was interstate as matter of law, and the question should not have been submitted to the jury; and since nobody contested the facts, but only their legal effect, it was unnecessary for the judge to say anything on the issue. Coming back now to the first of the questions we just put, the accused "coerced" exhibitors and producers, if it was "coercion" to threaten them with strikes. The statute does not, indeed, make it a crime to force a rise in wages by such a threat; the twice expressed exception that it shall not apply to the payment of wages would alone prove that, as indeed would the general purpose to be drawn from the whole. But if the accused at bar were not concerned in any wage dispute, but threatened to call strikes, not in the interest of the workmen, but to feather their own nests, they "coerced" their victims within...