United States v. Vespe

• Decision Date: 31 January 1975
• Docket Number: Crim. A. No. 74-71.
• Citation: 389 F. Supp. 1359
• Parties: UNITED STATES of America, Plaintiff, v. Basil VESPE, Defendant.
• Court: U.S. District Court — District of Delaware

389 F. Supp. 1359

UNITED STATES of America, Plaintiff, v. Basil VESPE, Defendant.

Crim. A. No. 74-71.

United States District Court, D. Delaware.

January 31, 1975.

Ralph F. Keil, U. S. Atty. and Bruce L. Thall, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Victor F. Battaglia and William H. Uffelman, of Biggs & Battaglia, Wilmington, Del., for defendant.

OPINION AND ORDER

LATCHUM, Chief Judge.

On August 6, 1974, the Grand Jury returned a four count indictment¹ against Albert Martin ("Monk") Shaffer, Jr. and Basil Vespe.² The first three counts charged Shaffer with three substantive violations of either traveling in interstate commerce, or using and causing to be used interstate telephone facilities, with intent to carry on an unlawful activity involving extortion in violation of 18 U.S.C. § 1952(a)(3). The fourth count charged Shaffer and Vespe jointly with conspiracy to travel in interstate commerce and to use or caused to be used interstate telephone facilities with the intent of carrying on an unlawful activity, i.e., extortion, in violation of 18 U.S.C. § 371.

Both defendants filed pre-trial motions to dismiss the indictment under Rule 7(c), F.R.Crim.P., on the ground that it failed to charge any offense.³ These motions were denied on September 23, 1974, United States v. Shaffer, et al., 383 F.Supp. 339 (D.Del.1974).

On September 15, 1974, Shaffer was found shot to death⁴ in his home state of New Jersey which left Vespe as the sole defendant to stand trial on Count IV of the indictment.

Trial commenced on October 15, 1974 and concluded on October 22. The jury found Vespe guilty as charged. The case is now before the Court on defendant's motion for judgment of acquittal pursuant to Rule 29(c) or for a new trial, pursuant to Rule 33, F.R.Crim.P. The Court will treat the two motions separately.

I. MOTION FOR JUDGMENT OF ACQUITTAL

The applicable standard when passing on a motion of judgment for acquittal after trial under Rule 29(c) is well settled. "The Court scrutinizes the evidence, including reasonable inferences to be drawn therefrom, from the point of view most favorable to the government and assumes the truth thereof. If there is substantial evidence justifying the inference of guilt, irrespective of the evidence adduced by the defendant, the Court must deny the motion." United States v. McGonigal, 214 F.Supp. 621, 622 (D.Del.1963); United States v. Roy, 213 F.Supp. 479, 480 (D.Del. 1963).

Count IV of the indictment relating specifically to Vespe charged that he and Shaffer, in violation of 18 U.S.C. § 371, did willfully and knowingly combine, conspire, and agree with each other to violate 18 U.S.C. § 1952(a)(3) by (1) traveling in interstate commerce between New Jersey and Delaware and (2) by using and causing to be used interstate telephone facilities from New Jersey to Delaware with the intent to carry on the unlawful activity of extortion, to wit, the obtaining of monies from Joseph Remedio through threats of physical injury and property damage in violation of Delaware law, 11 Del.C. § 846(1) and (2). The indictment charges eight overt acts were committed in furtherance of the conspiracy as follows: Shaffer traveled from New Jersey to Delaware on July 10, 1974 and used interstate telephone facilities on July 10, 12 and 22, 1974 and that Vespe traveled from New Jersey to Delaware on July 17, 1974 and used interstate telephone facilities on July 12, 15 and 22, 1974.

The Court charged the jury that in order to convict Vespe for conspiracy the government was required to prove beyond a reasonable doubt (1) that the conspiracy described in the indictment was willfully formed, and was existing at or about the time alleged; (2) that the defendant willfully became a member of the conspiracy; (3) that one of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment at or about the time and place alleged; and (4) that such overt act was knowingly done in furtherance of some object or purpose of the conspiracy. (Tr. 740).⁵

A. Insufficient Evidence.

The first ground of the motion for judgment of acquittal is based on defendant's contention that there was insufficient evidence to show the existence of an agreement between Shaffer and Vespe to obtain money from Joseph Remedio through the use of threats.

The evidence adduced at trial from the point of view most favorable to the government reveals the following facts: Joseph W. Remedio ("Remedio") is a general contractor with offices in Wilmington, Delaware, who has been in the construction business in Wilmington and the surrounding areas for 24 years. (Tr. 104-105). As a general contractor, he bids on proposed construction jobs, and if he is awarded the project as the low bidder, he oversees and builds the project with the use of subcontractors and his own employees. (Tr. 104-105). Remedio first established a business relationship with Vespe, a concrete subcontractor, beginning in 1970 in connection with the Peck Sussex Rug Mills building that Remedio was constructing at Bridgeville, Delaware. (Tr. 106, 109, 219, 631-632). In 1971, Vespe's firm also was the concrete subcontractor on two high-rise public housing projects being built by Remedio at Millville and Penns Grove, New Jersey. (Tr. 111). A dispute arose over Vespe's performance and his subcontracts on these projects were terminated with the result that there is civil litigation pending in a New Jersey state court in which both Remedio and Vespe claim each is owed money by the other. (Tr. 112, 184, 220).

Sometime about September 1973, Remedio was visited by two brothers from Philadelphia by the name of DeCarlo, (Tr. 113, 237, 489); they presented a document purportedly signed by Vespe, addressed "To Whom It May Concern" which authorized DeCarlo to collect any balances due Vespe without mentioning any amount or any specific project on which Vespe worked. (Tr. 113-114). The DeCarlos stated they were sent down to collect a balance for Vespe of approximately fifty to sixty thousand dollars and wanted to know what Remedio intended to do about it. (Tr. 114). Remedio responded that he owed Vespe no money, that all money had been expended on the project to complete Vespe's unperformed subcontract work, and that he was not going to pay any additional sum. (Tr. 114). When the DeCarlos were told this, they began to threaten Remedio and specifically stated that they knew that he had a nice family, and if he didn't want any trouble and anybody to get hurt, he better start paying his debt. (Tr. 114-115).

On July 3, 1974 when Remedio returned to his office he found two telephone messages to call Shaffer, whom he did not know (Tr. 123), immediately on a subject matter of importance. (Tr. 115). Remedio was unable to reach Shaffer by telephone until the following day, July 4. Shaffer told Remedio he wanted to discuss the Vespe matter. When Remedio indicated there was nothing to discuss and that their attorneys were handling the matter which was already in court (Tr. 116), Shaffer responded that he wished to hear nothing about a court or lawyers, that he was coming to see Remedio at his Wilmington office on Monday or Tuesday, that he had better be there, that, if Remedio was not in his office when Shaffer arrived, it was going to be too bad for him and that he could get a bullet in his head. (Tr. 116-117).

Following Shaffer's telephone conversation, Remedio called Detective Lt. Terrence Patton of the Wilmington Police Bureau (Tr. 123, 62), Remedio's brother-in-law (Tr. 124, 62), and related to him Shaffer's telephone threats and the earlier visit of the DeCarlo brothers. (Tr. 122-123). Patton advised Remedio to contact him if he heard from Shaffer again. (Tr. 123). The following Monday and Tuesday (July 8 and 9) Remedio heard nothing further from Shaffer. (Tr. 123). Remedio had been in the process of moving his offices, a move which had been completed over the preceding weekend. (Tr. 123, 106).

On July 10 (a Wednesday) Shaffer telephoned Remedio's office and stated: "We went to your old office and we just found out you moved; we will be there in ten minutes, don't leave." (Tr. 124). Remedio immediately contacted his brother-in-law, Detective Patton, who told Remedio to detain Shaffer in the front office until the police officers could arrive. (Tr. 124).

Detectives Patton and Leroy H. Landon soon thereafter arrived at Remedio's new place of business and were ushered back to Remedio's office. Shaffer and an associate were already in the reception area waiting to see Remedio when the detectives arrived. (Tr. 125, 67-69, 77). The detectives were wearing plain clothes and when Shaffer and his associate were shown into Remedio's office, Remedio introduced them as his business associates. (Tr. 125, 69, 78-79).

Shaffer introduced himself to Remedio and indicated he was there "to talk about the Vespe matter." He stated that Vespe contended Remedio owed Vespe over $80,000. Shaffer claimed he was with the organization, was comptroller, and had been authorized to collect any accounts receivable. (Tr. 126). After Remedio told Shaffer that he had terminated Vespe's subcontract on the Millville project because he refused to take corrective measures, Shaffer said: "Vespe owes me $400,000 and I want it," and that "we are visiting all the accounts receivable, and it seems like there were four of them just like yours, they are all in court, and I am getting to the bottom of it because I am owed all this money." (Tr. 127). Shaffer also said that although he was the comptroller, he still had a large investment in the corporation, and was upset about the expenditures that Vespe had made, such as a 51-foot yacht charged to the company. (Tr. 127-128). Remedio showed Shaffer documents supporting his position that no money was owed. After about a half hour of discussion, Shaffer, stating that he had seen enough and felt satisfied, said that he would be in touch with the...