United States v. Kenny

• Decision Date: 22 May 1972
• Docket Number: No. 71-1886 to 71-1890.,71-1886 to 71-1890.
• Citation: United States v. Kenny, 462 F.2d 1205 (3rd Cir. 1972)
• Parties: UNITED STATES of America v. John V. KENNY et al. Appeal of William A. STERNKOPF, Jr., in No. 71-1886. Appeal of Fred J. KROPKE, in No. 71-1887. Appeal of Joseph B. STAPLETON, in No. 71-1888. Appeal of Philip W. KUNZ, in No. 71-1889. Appeal of Bernard MURPHY, in No. 71-1890.
• Court: U.S. Court of Appeals — Third Circuit

462 F.2d 1205 (1972)

UNITED STATES of America v.John V. KENNY et al.Appeal of William A. STERNKOPF, Jr., in No. 71-1886 Appeal of Fred J. KROPKE, in No. 71-1887 Appeal of Joseph B. STAPLETON, in No. 71-1888 Appeal of Philip W. KUNZ, in No. 71-1889 Appeal of Bernard MURPHY, in No. 71-1890.

Nos. 71-1886 to 71-1890.

United States Court of Appeals, Third Circuit.

Argued February 18, 1972.

Decided May 22, 1972.

As Amended June 9, 1972.

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Mac Asbill, Jr., Sutherland, Asbill & Brennan, Washington, D. C., David M. Satz, Jr., Newark, N. J., Rufus E. Brown, Michael L. Denger, Washington, D. C., for appellant, William A. Sternkopf, Jr.; Saiber, Schlesinger & Satz, Newark, N. J., of counsel.

John J. Carlin, Jr., James E. Davidson, Farrell, Curtis, Carlin & Davidson, Morristown, N. J., for Fred J. Kropke.

Lawrence P. Brady, Jr., Jersey City, N. J., for Joseph B. Stapleton.

Arnold M. Stein, Stein & Einhorn, Denville, N. J., for Philip W. Kunz.

Robert A. Baime, Irvington, N. J., for Bernard Murphy.

Herbert J. Stern, U. S. Atty., John J. Barry, Marc L. Dembling, David R. Hinden, Richard M. Langway, Asst. U. S. Attys., on the brief, Newark, N. J., for appellee.

Before VAN DUSEN, ADAMS and GIBBONS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

On November 16, 1970 a federal grand jury in Newark returned a thirty-four count indictment against John V. Kenny, Thomas Whelan, Thomas Flaherty, Walter Wolfe, John J. Kenny, William Sternkopf, Jr., Fred Kropke, Frank G. Manning, Joseph Stapleton, Philip Kunz, James R. Corrado and Bernard Murphy.Prior to trial the defendantsFrank G. Manning, and John J. Kenny(no relation to John V. Kenny and called hereinafter J. J. Kenny) were severed and were granted immunity pursuant to 18 U.S.C. § 2514.Corrado pleaded guilty to one count on May 21, 1971.During the trial, on June 11, 1971John V. Kenny(hereinafter J. V. Kenny), because of physical inability to continue, was severed.At the close of the Government's case five counts of the indictment were dismissed on the motion of the Government.On July 5, 1971, the jury returned verdicts of guilty against seven of the eight remaining defendants on all twenty-nine remaining counts and against defendant Kunz on seventeen of those counts.Sentences were imposed on August 10, 1971¹ and all defendants except Wolfe appealed.Thereafter the defendants Whelan and Flaherty withdrew their appeals.Thus of the twelve named in the indictment the appeals of five, Sternkopf, Kropke, Stapleton, Kunz and Murphy, are before us.

Count I of the indictment charges that each of the defendants, during the period from November 1, 1963 to the date of the indictment, conspired in violation of 18 U.S.C. § 1951² to obstruct, delay, and affect interstate commerce by impeding construction undertaken on behalf of the City of Jersey City and the County of Hudson by contractors engaged in interstate commerce, in order to obtain the property of such contractors with their consent, which was induced both by the wrongful use of fear and under color of official right.Count II of the indictment charges that each of the defendants, during the period from November 1, 1963 to November 16, 1970, in violation of 18 U.S.C. § 371³ conspired to commit violations of 18 U.S.C. § 1952⁴ by using the facilities of interstate commerce to carry on an unlawful activity, that activity being the crimes of bribery and extortion in violation of the laws of the State of New Jersey.Thus the indictment charges violations of two separate federal conspiracy statutes; the specific prohibition in § 1952 against conspiracies to obstruct, delay or affect commerce (Count I) and the general prohibition in § 371 against conspiracies to commit an offense against the United States (Count II).The offense alleged against the United States in Count II is the substantive violation of § 1952—interstate travel to commit extortion or bribery in violation of state law.Section 1952, unlike § 1951, does not contain a specific prohibition against conspiracy.Section 1951 prohibits both substantive offenses and conspiracies.Counts III through XXXIV of the indictment each charges a separate substantive violation of § 1951 by the extortion of a specific sum of money from a specific contractor.

Each of the defendants was, or had been, a highly placed public official or political leader in Jersey City or Hudson County or both.It was the Federal Government's theory that each acting in concert with one or more of the others used his position to fasten upon both the city and county administrations a system whereby no one could do business with either without kicking back a percentage, usually 10%, of the contract price.According to the Federal Government this was achieved in three principal ways.First, the competitive bidding process was perverted by a "pre-qualification" arrangement which enabled the defendants to exclude from bidding contractors unwilling to kick back.Second, payments for work already done would be withheld until the kickback was made.Finally, on contracts not subject to competitive bidding the contract would not be awarded to anyone unwilling to kick back.At the head of this corrupt system, according to the Federal Government, was the defendantJ. V. Kenny, who, although he held no public office or official party position in the years in question, was de facto the absolute boss of the political party in power.Under his leadership, it was contended, the defendants fastened a thoroughly meshed arrangement on both city and county administrations by which they subverted those governmental units into corrupt vehicles for their own private enrichment.

These contentions were amply proved by the testimony of numerous witnesses, but particularly by the testimony of the two defendants, Manning and J. J. Kenny, who as immunized witnesses detailed their own participation in the corrupt system, its methods of operation, its pervasiveness, and its long term success.The testimony of these acknowledged participants was corroborated in detail not only by the testimony of numerous victims, but by proof of the existence of substantial hoards of ill gotten gains accumulated by one or more of the participants.The proof in the record of the existence of a system for diverting the apparatus of city and county government to private, unlawful ends is overwhelming.

Each of the appellants, however, contends that as to him the proof was not all that overwhelming, that the Government's case placed him at the periphery at best, and that he was prejudiced before or during the trial in various ways.Most of the appellants urge common legal and factual issues, and these will be so discussed.Where the situation of any appellant is unique specific reference will be made to him.

I.Contentions with Respect to Discovery of the Government's Case

All defendants engaged in extensive pre-trial motion practice looking to discovery of the Government's case.That case was substantially documentary.The court ordered the Government, on defendants' motion, to permit them to inspect all tangible evidence related in any way to the case, to furnish in advance copies of any records which the Government might use at the trial and to furnish a copy of the grand jury testimony of each defendant who had testified before the grand jury.As it turned out, there was a room full of documents.This room was kept open to the defendants six days a week prior to the trial and even on Sunday during the trial.Several of the defendants contend that the court's approach was so overly liberal that they never made any meaningful use of the vast volume of materials made available.This contention is without substance.The nature of the conspiracy was such that it generated a great deal of tangible evidence, including $50,090.00 in currency, all of which was available for inspection.The only evidence which was not, pursuant to the court's order, available for inspection prior to trial, was evidence of certain transactions which did not come to the Government's attention until the trial was under way.The court gave the defendants an adequate opportunity during trial to prepare to meet any such later discovered evidence.

Several defendants contend that the court erred in denying their motion for a bill of particulars.The court in the exercise of its sound discretion declined to require the Government to answer a set of detailed interrogatories in the guise of a bill of particulars.This decision to permit liberal inspection of all tangible evidence placed a greater burden of preparation on the defendants than would have been the case had their suggested course, requiring answers to a detailed bill of particulars, been followed.This, however, was a matter within the discretion of the court.The court leaned heavily toward liberal discovery throughout the case, and the defendants cannot be heard to complain about the balance of the burden of preparation which it struck between the prosecution and the defense.Ample opportunnity for preparation was available, and from the evidence in the record was in fact availed of.

Defendant Stapleton contends that the court erred in denying his motion, pursuant to Fed.R.Crim.P. 16(a), for a copy of the statements of government witnesses setting forth conversations with him.We rejected the same contention in United States v. Fioravante, 412 F.2d 407, 410(3d Cir.1969), cert. denied, Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88(1969).Rule 16(a) does not require the discovery of witness statements.Those statements are governed by the provisions of the Jencks Act, 18 U.S.C. § 3500.That statute was complied with during the trial.

Finally, defendants Kropke and Stapleton contend that it was error for the court to refuse discovery, prior to trial, of the contents of affidavits...