United States v. Kenny, No. 71-1886 to 71-1890.
Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Writing for the Court | VAN DUSEN, ADAMS and GIBBONS, Circuit |
Citation | 462 F.2d 1205 |
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. |
Decision Date | 22 May 1972 |
Docket Number | No. 71-1886 to 71-1890. |
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.
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 defendants Frank 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, 1971 John V. Kenny (hereinafter J. V. Kenny), because of physical inability to continue,
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
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 defendant J. 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.
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...
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U.S. v. Rigas, No. 08-3218.
...of enriching the Rigases through Adelphia. A "master conspiracy [can involve] more than one subsidiary scheme." United States v. Kenny, 462 F.2d 1205, 1216 (3d Cir.1972). The allegations related to conversion of Adelphia funds by the Rigases — a subsidiary scheme within the New York Indictm......
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U.S. v. Hathaway, Nos. 75-1352
...139, 151 & n.8 (7th Cir. 1974) (Clark, J.), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); cf. United States v. Price, 507 F.2d 1349 (4th Cir. 1974). The stat......
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U.S. v. Cerilli, No. 78-2105
...under color of official right is charged, one need not prove that the payment was obtained by force, fear or duress. See U. S. v. Kenny, 462 F.2d 1205 (3d Cir. 1972). Since the district judge instructed the jury on the basis of this circuit's well-settled law in this regard, the dissent con......
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United States v. Rinaldi, 3:18-CR-279
...v. Hayes, 2007 WL 3085998, *1 (M.D.Pa. 2007) (citing United States v. Urban, 404 F.3d 754, 772 (3d Cir. 2004); United States v. Kenny, 462 F.2d 1205, 1212 (3d Cir. 1972)). "[T]he granting of a bill of particulars remains a discretionary matter with the trial court." Addonizio, 451 F.2d at 6......
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U.S. v. Rigas, No. 08-3218.
...of enriching the Rigases through Adelphia. A "master conspiracy [can involve] more than one subsidiary scheme." United States v. Kenny, 462 F.2d 1205, 1216 (3d Cir.1972). The allegations related to conversion of Adelphia funds by the Rigases — a subsidiary scheme within the New York Indictm......
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U.S. v. Hathaway, Nos. 75-1352
...139, 151 & n.8 (7th Cir. 1974) (Clark, J.), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); cf. United States v. Price, 507 F.2d 1349 (4th Cir. 1974). The stat......
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U.S. v. Cerilli, No. 78-2105
...under color of official right is charged, one need not prove that the payment was obtained by force, fear or duress. See U. S. v. Kenny, 462 F.2d 1205 (3d Cir. 1972). Since the district judge instructed the jury on the basis of this circuit's well-settled law in this regard, the dissent con......
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United States v. Rinaldi, 3:18-CR-279
...v. Hayes, 2007 WL 3085998, *1 (M.D.Pa. 2007) (citing United States v. Urban, 404 F.3d 754, 772 (3d Cir. 2004); United States v. Kenny, 462 F.2d 1205, 1212 (3d Cir. 1972)). "[T]he granting of a bill of particulars remains a discretionary matter with the trial court." Addonizio, 451 F.2d at 6......