United States v. Nadaline, 72-1431.

• Decision Date: 23 April 1973
• Docket Number: No. 72-1431.,72-1431.
• Citation: 471 F.2d 340
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank NADALINE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

471 F.2d 340 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Frank NADALINE et al., Defendants-Appellants.

No. 72-1431.

United States Court of Appeals, Fifth Circuit.

January 3, 1973.

Certiorari Denied April 23, 1973.

Henry J. Whelchel, Miami, Fla., Charles A. Stillman, New York City, for defendants-appellants.

Robert W. Rust, U. S. Atty., Arthur W. Tifford, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before COLEMAN, AINSWORTH and DYER, Circuit Judges.

Certiorari Denied April 23, 1973. See 93 S.Ct. 1924.

COLEMAN, Circuit Judge:

Title 18, § 1951(a) of the United States Code The Hobbs Act, approved June 25, 1948, 62 Stat. 793, as amended reads as follows:

"§ 1951. Interference with commerce by threats or violence

"(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both."

The two indispensable elements for conviction under this statute are (1) interference with interstate commerce and (2) extortion, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L. Ed.2d 252 (1960); United States v. Provenzano, 3 Cir., 1964, 334 F.2d 678, cert. denied 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544.

1. The Convictions and Acquittals

The indictment was in seven counts.

Frank Nadaline, Joseph Nadaline, and Lawrence Leroy Smith were found guilty of conspiring to obstruct commerce through extortionate means.

Frank Nadaline and Joseph Nadaline were likewise convicted, as a method of wilfully and knowingly interfering with commerce, of threatening to cause personal harm to John W. Bryan unless the latter agreed not to employ John H. Eggers as a sales representative of Drive-In Cameras, Inc. This offense allegedly occurred on January 20, 1971.

Frank Nadaline and Joseph Nadaline were also convicted of an assault on one John H. Eggers on January 25, 1971, allegedly committed for the same purpose.

Again, as a part of the same course of conduct, for the same purposes, Joseph Nadaline and Lawrence Leroy Smith were convicted of throwing a rock, on January 25, 1971, through the window of Drive-In Cameras, Inc., at 260 South Federal Highway, Pompano Beach, Florida.

The defendants were thereafter sentenced and the judgment of the District is affirmed.

The same jury returned verdicts of "not guilty" in favor of Frank Nadaline as to two additional counts charging him with similar activity as to one Frances Kivett.

Joseph Nadaline and Lawrence Leroy Smith were found "not guilty", in the same context, of a threat of personal harm against John H. Eggers allegedly committed on January 12, 1971.

2. The Background

Frank Nadaline was Chairman of the Board of Harrison Fotochrome, a public corporation with over ten thousand stockholders. Harrison operates photofinishing plants in Denver, Cleveland, New York, and Florida. Joseph Nadaline is Frank Nadaline's son, and manages the professional color division of the corporation. Lawrence Leroy Smith is an employee of Harrison, functioning as a laborer in its Hollywood, Florida, plant.

Among Harrison's competitors in South Florida is Drive-In Cameras, Inc., located chiefly in Fort Lauderdale and Pompano, Florida. Drive-In is partly owned by John W. Bryan. The record shows that it has been and is engaged in interstate and foreign commerce.

John H. Eggers worked at Harrison as a sales representative. As a result of asserted dissatisfaction with the services given the accounts he represented, Eggers resigned his employment on January 11, 1971.

The next day Eggers, the former employee of Harrison, met with Bryan and told him that some of the accounts he represented at Harrison would follow him wherever he went. Realizing the potential of Eggers' services, Bryan hired him.

3. The Activities as to Bryan

Eight days later, at about 9:30 A.M., Bryan received a phone call from Frank Nadaline. Nadaline told Bryan:

"I want you to get rid of Jack Eggers. We fired him for stealing. You don\'t want to hire a thief. I want you to tell me now that you are going to discharge him."

Bryan replied that he would have to think about it. At 11 o'clock that same morning, Frank Nadaline, Joseph Nadaline, and another man came to Bryan's place of business and told him to go into his private office. Frank told his son Joseph to stand outside the office door and not to let anybody use the telephones. Frank and the other man then went into the office with Bryan. The following conversation ensued:

Frank Nadaline (talking to the other man): "You see this guy. You see I want you to work him over."

(To Bryan): "You got five minutes to make up your mind to tell me that you are going to get rid of Eggers."

The other man: "He looks like an intelligent fellow. He don\'t want to go through all of this for one stinking employee."

One of Bryan's business partners, Mrs. Thomas, had noticed the Nadalines go into Bryan's office and became concerned about the situation. She summoned one of her own employees to go into Bryan's office. Upon being interrupted by the employee, Frank Nadaline decided to leave but not before telling Bryan that he wanted a reply to his request by Friday of that week.

4. The Assault of John H. Eggers

On January 25, 1971, Eggers had breakfast at William City Drug Store. Upon leaving the store at about 8:45 A. M., he noticed Frank and Joseph Nadaline standing on either side of his car. Joseph Nadaline told Eggers that he wanted him to come with them. Eggers resisted and was knocked to the ground by Joseph Nadaline. While thus down Eggers was twice kicked by Frank Nadaline.

Joseph Nadaline admitted the confrontation but said that they only wanted to question Eggers about work stolen from their plant and also about a company car which Eggers had abandoned. He claimed that he hit Eggers in self-defense. He also denied that his father was with him but instead stated that another Harrison employee was there. However, he said that he told the other employee that Eggers was trying to rob him and that is why he hit him. As an explanation for this falsehood he said that the other man was "new" and would not have understood the problems the company was having with Eggers.

Robert Mills, owner of the William City Drug Store, said that Frank Nadaline later admitted to him that he hit Eggers. Frank Nadaline testified that he was at a doctor's office on the morning of the alleged assault, but the doctor's office was only a few minutes drive from the drug store and the doctor testified that he could not have seen Frank until 9:45 or later.

5. Breaking a Window of Drive-In Camera

At approximately four o'clock on the morning of January 26, 1971, James Iouna closed the steak house where he worked and met his fiancee out front. The restaurant was located in Pompano, Florida, across the street from a Drive-In camera store. Hearing a crash a glass window had been broken Iouna noticed a gold colored automobile parked in front of the camera shop. They also noticed a black male getting in the car and a white male driving. They observed these two men for a couple of minutes before they drove off. Iouna called the police and gave them a description of the men, their car, and their direction of travel. A few moments later a car fitting the description was stopped by the police about seven blocks from the camera store. The occupants of the automobile, Joseph Nadaline and Lawrence Leroy Smith, matched the description of the men Iouna and his fiancee had seen. Explaining their reason for being in the area at the early morning hour, appellants stated that a window at the Harrison plant in Pompano had been broken and they were following a car which had passed by the plant about the time of that occurrence. At another point Smith testified that they were riding around looking for girls.

6. Alleged Trial Errors

The appeal raises several issues, to be discussed in the following order:

(1) Sufficiency of the evidence.

(2) Non-disclosure of acquaintance between a trial juror and defense counsel as affecting jury's partiality and the effective assistance of counsel.

(3) Alleged prosecutorial misconduct in the cross-examination of appellant Smith and in the government's summation.

(4) The admission of Smith's prior conviction by way of impeachment.

7. Sufficiency of the Evidence

Appellants raise the contention that 18 U.S.C., § 1951 (or The Hobbs Act, as it is more commonly known) is an inappropriate prosecutorial tool in this case and that the evidence was insufficient to meet the requirements of the statute. Appellants argue that even if true the assault upon Eggers, the broken window at the camera store, and the visit paid Bryan by the Nadalines only amounted to "fighting back" by one competitor against another and do not amount to extortion affecting interstate commerce.

The impact of extortion need affect interstate commerce only in a minimal degree, United States v. Hyde, 5 Cir., 1971, 448 F.2d 815, cert. denied 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745.

It has been held that to prove an attempt to extort it is necessary to show an attempt to arouse fear, Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, cert. denied 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498. The threats to Bryan, the breaking of the camera store window, and the assault upon Eggers have all the earmarks of a design to instill fear in both men.

Obviously the extortion here involved was concerned with business accounts and with unrealized profits from those accounts. Such intangible property has been held to be included within those rights protected by the Act, United States v. Tropiano, 2 Cir., 1969, 418 F.2d 1069, cert. denied 397 U.S. 1021, 90 S.Ct. 1262, 25...