United States v. DeMasi

• Decision Date: 09 July 1971
• Docket Number: Docket 71-1050.,No. 1002,1002
• Citation: 445 F.2d 251
• Parties: UNITED STATES of America, Appellee, v. James DeMASI, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

445 F.2d 251 (1971)

UNITED STATES of America, Appellee, v. James DeMASI, Appellant.

No. 1002, Docket 71-1050.

United States Court of Appeals, Second Circuit.

Argued May 14, 1971.

Decided July 9, 1971.

James Schreiber, Robert G. Morvillo, Asst. U. S. Attys., Whitney North Seymour, U. S. Atty., for appellee.

Irving Anolik, New York City, for appellant.

Before FRIENDLY, Chief Judge, WATERMAN, Circuit Judge, and ZAVATT, District Judge.^*

WATERMAN, Circuit Judge:

After a trial before a jury, appellant James DeMasi was convicted on two counts of violating the Hobbs Act (18 U.S.C. § 1951) by interfering with interstate commerce through attempts to gain control of a night club in New Rochelle, New York, by force and violence, and was also convicted on one count of conspiring to violate that section. He was sentenced to concurrent sentences of ten years on each count, but has been enlarged on bail pending determination of this appeal.

The events giving rise to this prosecution occurred in 1963. Sensing an unexploited market for a "family-type" night club in New Rochelle, one Edward Blackoff, in March of that year, opened the "Round-A-Bout Club" which provided restaurant and bar facilities as well as a bandstand for "live" music. Sometime in April appellant, also known as "Jimmy Dimps," visited the Club around closing time and asked to speak to Blackoff. In the presence of the Club's manager, Jack Withrow, appellant related that he had heard that Blackoff had said that "no racket guys or unsavory characters were going to be allowed in the Club and that he in particular was barred." Blackoff denied that he had made the statements. He added that he did not know appellant and he concluded the conversation by assuring DeMasi that he was welcome as long as he behaved himself. Appellant thereupon became a regular customer, stopping in three or four times a week.

In the early part of May the Club's bartender, Vincent "Cha Cha" Aiello, told Blackoff and Withrow that they "could expect to be visited by a group of well-known racket men * * * because they had heard so much about the Club." A few evenings later Aiello introduced three men to Blackoff and Withrow: Nickey Nelson,¹ Matty (Nelson's bodyguard), and "F. O.," manager of a Bronx bar. DeMasi was already present in the bar and these men joined him at a table. Later that night the Club experienced its first disruption. Two men, each over six feet in height, claiming to have been short-changed, broke glasses, shouted obscenities, and created a disturbance. Withrow was unable to calm them. Nelson's bodyguard, Matty, was equally unsuccessful. It was Nelson himself, a man of much smaller size, who escorted the two to the door without resistance. Meanwhile Blackoff, who had heard the commotion while in the restaurant, entered the bar as the men were being ejected. He thanked Nelson and ordered free drinks for his party. Nelson urged Blackoff to learn the identity of the men because they had not respected his presence. DeMasi added that they "deserved to get their lumps," and Nelson gave Blackoff the telephone number of F. O.'s bar in the Bronx, making it clear that he was to be informed if the men returned so that he could punish them.

About a week later the two troublemakers returned to the Club demanding that they be compensated for damage allegedly done to their clothes when they were ejected. When Withrow refused, the men threatened to wreck the Club. However, Blackoff mentioned that Nelson was looking for them and the men became less adamant in their demand. Blackoff gave them a check and they left.² As they were driving away, Withrow copied down the car's license number.

A couple of days later Nelson and Matty appeared at the Club to inquire about the return of the two men. Blackoff and Withrow explained what happened. Nelson then asked for the license number because, he asserted, he had access to police records and could discover the identity of the car's owner. Further he pledged that the men would be punished. Subsequently, Aiello told Blackoff that Nelson had located the troublemakers who were "connected with other gangsters" and that they had been punished. Blackoff was to consider the matter closed. Nonetheless, the effect of these and later disturbances on the Club's business was dramatic. By June the family groups stopped coming, and business went steadily downhill.

During the earlier part of June appellant became increasingly disruptive while at the Club and frequently refused to pay his bills. On a Friday, after arriving in the company of a woman and another man, he started to swear loudly and break some glasses. He was asked to leave by another customer who claimed that he had a one-third interest in the Club.³ When appellant heard this, he said, "We will see who owns one-third of this Club," and told Blackoff that, inasmuch as Blackoff had been using Nickey Nelson's name, "I am going to fix you." He then ran to a hallway telephone and made a call. Blackoff overheard DeMasi tell the other party that he was at the Club, that "there was a lot of trouble here," and that his listener should "come up right away." Shortly thereafter Matty arrived with four or five "tough-looking" men and conferred with appellant. Both then approached Blackoff. Matty repeated the charge that Blackoff had used Nelson's name without authority to do so and added that Blackoff would have to pay for it. Blackoff again denied the charge, and, after further verbal exchanges, DeMasi, Matty, and the others left.

In order to resolve the misunderstanding, Blackoff and Aiello on Saturday drove to the Bronx bar managed by F. O., ostensibly to drop off some glasses F. O. had wanted but, in fact, to see Nelson.⁴ Blackoff carried the glasses into the bar and gave them to F. O., who at the time was standing behind the bar counter. Looking into the mirror behind the counter, Blackoff noticed one of the two men who had caused the trouble at his Club and who supposedly had been punished by Nelson. He also saw Matty calmly standing not far from the troublemaker. At this point Blackoff realized that the two disturbances at the Club had been staged, and he sought a quick exit. However, as he neared the door, he was accosted by Matty who repeated the charges from the evening before and demanded in addition that he be made manager of the Club. Blackoff responded that he already had a manager, namely Withrow, but Matty was unimpressed. He told Blackoff that unless he was made manager, the "Club would be wrecked * * *, he would be beaten up and his wife and child would be beaten with lead pipes filled with cement * * *." Matty demanded an answer by evening.

Blackoff returned to the Club and related the events to Withrow, a waitress, and Lemanno, a butcher from Connecticut who provided the Club's meat requirements. Lemanno suggested that Blackoff contact some men in the Bronx known to Lemanno who would know about Nelson and Matty so that Blackoff could evaluate the demand, and they left together in search of the information. Soon after, Matty arrived at the Club demanding to see Blackoff. Withrow explained that Blackoff was not there but Matty decided to await his return. As the delay grew longer, Matty became impatient and struck Withrow.

During the evening Blackoff called the Club to ask if Matty was waiting for him and he received an affirmative answer. He called again still later to speak with Withrow, but Matty grabbed the telephone from Withrow and ordered Blackoff to return to the Club. When Blackoff arrived, Matty struck him, repeated his demands, and warned Blackoff not to contact the police. He said that once he was taken in as manager, he might buy out Blackoff after a year, but he mentioned no price. He also assured Blackoff that should he be made manager, no more men would be demanding money, and that there would be no more disruptions and appellant, especially, would be kept out. Blackoff equivocated, and after a few drinks Matty departed.

On Sunday Withrow learned from a waitress that some men were "going to come up * * * and beat everybody up in the Club with lead pipes * * * and smash the Club." That evening DeMasi and approximately fifteen men filed into the Club and marched to the bar, where they proceeded to harass Aiello. Very shortly thereafter Matty called Blackoff to ask how things were going. Blackoff told him that appellant was there with fifteen men who "looked like they were going to start causing trouble" and asked Matty to "get them out." When Matty arrived, he spoke quietly with DeMasi, and, following this talk, DeMasi and his cohorts left.

Blackoff thereupon told Matty that he would not go through with the proposal, saying that he would rather close the Club. Matty repeated his threats but to no avail. Blackoff demanded that he leave and Matty, being cooperative, agreed to go if Blackoff would drive him to F. O.'s bar. Blackoff declined but Aiello volunteered.

Aiello returned sometime later that night in a frightened state. He had spoken with Nelson, Matty and F. O., and he told Blackoff that they would give Blackoff "one hour" to reconsider or they would come up and "take care of him." Blackoff listened to Aiello and then ran from the Club to flag down a police car. He explained to the officer what was happening and the officer agreed to watch for Nelson's arrival. Later the officer stopped a car that had been circling the Club; it contained Nelson and an unidentified passenger. Nelson did not enter the Club.

On Monday Blackoff went to the New Rochelle police and disclosed the extortion scheme. In September, 1963, business having fallen off completely, he closed the Club.

The federal grand jury indictment charging appellant, Melillo (Nelson) and a still unidentified "John Doe" was filed almost four years later, in March, 1967. Appellant argues that this lengthy pre-indictment delay violated his right to a speedy trial as guaranteed by the Sixth Amendment and...