Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.
Claude Palmiotti appeals from a judgment of conviction on Counts One and Two of an indictment charging violations of the Hobbs Anti-Racketeering Act, 18 U.S.C. § 1951. The substance of the crimes alleged is that on June 18, 1956 appellant attempted to extort $350; and on June 25, 1956 succeeded in extorting $190, from an agent of Robert S. MacLean, Inc., "by wrongful use of threatened force or fear." The Third and Fourth Counts charged substantive offenses of a similar character alleged to have been committed later in the same year, but on these counts appellant was acquitted. He was sentenced to two years imprisonment on Count Two, and on Count One a suspended two-year sentence was imposed, with probation of three years to commence after the expiration of the sentence on Count Two. The trial judge allowed bail pending this appeal.
The grounds of appeal are: (1) that the indictment is fatally defective; (2) that there was no evidence sufficient to warrant the submission of the case to the jury because of the alleged absence of proof that appellant threatened a work stoppage if his demands were not acceded to; (3) that it was error to show the jurors a moving picture taken by the FBI of appellant receiving the $190 alleged in Count Two; (4) that certain comments by Government counsel and by the trial judge during the prosecution's summation were improper in that they allegedly erroneously made it appear that appellant had admitted that he was guilty of the extortion of the $190, and that the motion picture in and of itself proved his guilt; (5) that appellant was deprived of a fair trial because of the allegedly erroneous admission over objection of evidence: (a) of prior acts of extortion in 1954; (b) of certain checks received to corroborate the proof of the payments alleged to have been made in 1954 and 1956; (c) of conversations with others not in the presence of appellant, and other proof received to establish the state of mind of the victim of the extortion charged in the indictment; and (6) because of the refusal to instruct the jury as requested by appellant.
It is also claimed that the requisite interference with interstate commerce is not shown, but we merely mention this in passing, as the proof was ample to satisfy the statutory requirement and the instructions of the trial judge on this subject were unexceptionable.
Peter J. Smykla was connected with Smykla & MacLean, Inc., and Robert S. MacLean, Inc., two corporations specializing in the setting of stone in construction projects in New York. Certain of appellant's dealings were with Robert S. MacLean, but he died on February 23, 1956 and Mrs. MacLean succeeded to his interests in both companies. Much of the work of these two construction concerns involved the installation of granite blocks in bridges and highways and their practice was to order their stone precut at out-of-the-state quarries to the exact dimensions they specified.
Appellant was the business agent of the Granite Cutters Union and his activities covered a wide field. But to Smykla and MacLean his interest as shown in this record was confined to individuals in appellant's union known in the trade as fitters, men whose normal occupation was to cut the stone to the proper dimensions to prepare it for installation. While there are references here and there to anchor holes in the granite, and doubtless there were times when an occasional anchor hole needed some further chiseling, this is a peripheral matter, no more than a distracting diversion from the main issues, and we shall say no more about it. The plain fact was that neither Smykla nor MacLean had any use for the fitters. There was no work for them to do. And it is equally plain that any work stoppage or strike on the construction jobs would interfere with shipments of the quarried stone from other states - and the granite ordered for the job in connection with which the $190 was paid was contracted for with the Swenson Granite Co. of Concord, New Hampshire, and was shipped on trailer trucks from Concord to the job site in New York City.
By way of background to the chronological sequence of events which we shall now briefly outline, it may be said that the simple issues presented by Counts Two and Three of the indictment, involved, as it turned out, after the motion picture apparatus was brought into the courtroom, and the activities of the FBI were revealed, a question of veracity between Smykla and appellant. Smykla testified in substance that appellant demanded $350, pointed out the large expense of hiring the unnecessary fitters, adding the pregnant comment that "there would be no trouble" if this sum was paid, and that Smykla protested and argued, finally induced appellant to reduce the tribute he demanded to $200, and that he paid the money only because he feard a work stoppage or strike if he refused. Appellant testified that he was paid $190, but insisted that the payment was entirely as a voluntary gift, and that he took the money only because "I didn't want to antagonize the man by refusing what he was going to give me." He denied that he had sought to obtain any such sum as the $350 described by Smykla. At no time did appellant advance any claim that the money was paid to him or received by him in furtherance of any legitimate purpose of his union. He simply took the money, put it in his pocket, and used it for his own personal ends. Moreover, the trial judge instructed the jury not once but several times that they could find appellant guilty of extortion only if Smykla made the payment "because of fear or because of threatened force or threats of force made by the defendant." As to the attempt to extort $350 as charged in Count One, it is too obvious for comment that if Smykla's testimony was believed appellant was guilty as charged in that count.
With this background in mind, the sequence of events, in barest outline, was as follows: in the early part of 1954 the Smyka-MacLean corporation was engaged as subcontractor setting granite on a job on the Southern State Parkway on Long Island. Appellant sought out Smykla and MacLean and told them that fitters from his union must be put on the job. When Smykla explained that the stone was precut to size and no fitters were needed, appellant produced Rule 5 of the Regulations of the Stonecutters to the effect that where the stone was cut outside of the local jurisdiction where the job was being performed "members of his local have got to be put on the job as fitters or stand by even though we may not need them." The conversation, as testified by Smykla, proceeded as follows:
Palmiotti: Do you know what it would cost you?
Smykla: It isn't going to cost me anything.
Palmiotti: You got to put them on.
Then followed a computation by appellant of the cost of the unnecessary fitters at six, seven or eight thousand dollars and a statement that "if we pay him $2000 he would see to it that no fitters would be put on the job, and there will be no trouble on the job."
Appellant was induced to reduce his demand to $1500, insisting that no other union men would come in and ask for anything, and "that he had a connection with DeKoenig in Long Island." The upshot was that Smykla and MacLean felt the pressure of the shakedown and paid up, but in installments of $400 in April, $400 in June, $350 in July and the final $350 in August, 1954. The checks evidencing these payments and the ...