Waterman and Hays, Circuit Judges, Bartels, District Judge.*fn*
On March 27, 1968, the appellants were indicted in New Haven, Connecticut, in a four-count indictment, charging them with wilfully and knowingly attempting to and actually obstructing, delaying and affecting interstate commerce and the movement of supplies from outside Connecticut by extorting and attempting to extort property from certain refuse removal dealers by the wrongful use of threatened force, violence and fear, in violation of the Hobbs Act, 18 U.S.C.A. § 1951.*fn1 Counts 1, 2 and 3 of the indictment charged substantive violations of the Hobbs Act, while Count 4 charged conspiracy under the same Act. Tropiano and Grasso were named only in Counts 1, 2, and 4, while Pellegrino was named in all counts. The Court ordered an acquittal of all appellants as to Count 2, and a severance as to Count 3 relating to Pellegrino alone.
After a trial of eighteen days, the jury on November 15, 1968, returned a verdict of guilty against all the appellants accused in Count 1, and against all, except Pellegrino, accused in Count 4 -- the conspiracy charge. Tropiano was sentenced to twelve years imprisonment on each count, to be served concurrently, and a $10,000 fine on Count 1; Grasso was sentenced to ten years imprisonment on each count, to be served concurrently, and a $7,500 fine on Count 1; and Pellegrino was sentenced to eight years imprisonment and a $5,000 fine on Count 1.
It is undisputed that Tropiano and Grasso together with Dolores Proto were partners in the C & A Refuse Removal Company (hereafter C & A), engaged in the business of collecting rubbish, with customers or "stops" in Milford, Connecticut; that Pellegrino was likewise engaged through B & L Carting Corporation in Bridgeport, Connecticut; and that Leonard Caron, with the help of his wife Ruth, ran a family-owned company under the name of Caron Refuse Removal, Inc., similarly engaged in the rubbish removal business in the Bridgeport area.
The thrust of the Government's case was that when Caron's company replaced C & A in servicing one or more of the C & A's Milford "stops," Tropiano, Grosso and Pellegrino, by threats of violence, forced Caron to cease and desist from attempting to take away any more C & A's Milford "stops" and to consent not to solicit any more business in that area. This contention rested almost entirely upon the testimony of Leonard Caron, supported in parts by the testimony of his wife and corroborated in peripheral areas by several other witnesses. The appellants charge, among other things that the testimony of Caron and his wife was incredible as a matter of law. It is thus in order to examine this testimony which, in essence, reveals the following:
Jo-Nick's and Milford Rivet "Stops"
Caron moved to Milford in 1966 and decided that he would begin servicing Milford private refuse removal customers. At first he serviced two or three "virgin" accounts which had not been previously serviced. Then late in February, 1967, he began servicing the grocery store by the name of Jo-Nick's, located a block from his home, which prior thereto had been serviced by C & A. Thereafter, on March 2, 1967, Caron received a telephone call from Pellegrino, a competitor, at which time the latter stated that Grasso and Tropiano wished to speak to him. Caron invited them to his home but Pellegrino declined, arranging, instead, a meeting at Howard Johnson's restaurant for that evening. Pellegrino picked up Caron in his car and drove him to the restaurant, where Pellegrino introduced Tropiano and Grasso as owners of C & A and also as Pellegrino's partners and backers. At this meeting Grasso said that Jo-Nick's was his account, that Caron should leave it alone and that if Caron did not cooperate, Grasso would push him out of Milford -- "way out if he needed to," and Tropiano said "We know how to take care of guys like you." Caron refused to accede. On the way home Pellegrino told Caron that he was crazy and that "these two men were not to be fooled with," that Caron was liable to get his "head broke or something similar to that." Two days later, on March 4th, Caron and his wife sought the advice of Lieutenant Donald Paige of the Connecticut State Police in Fairfield. Caron shortly thereafter removed the refuse container he had left at Jo-Nick's and discontinued service for approximately two weeks, until the middle of March, when he again resumed service of Jo-Nick's. The resumption of service resulted in a storm of phone calls from Grasso and Pellegrino, during which Grasso kept repeating that the customer was his and that Caron should keep away. Pellegrino again stated that Caron was "fooling with the wrong people." In one call Pellegrino told Mrs. Caron that her husband "was playing with a rough bunch of guys" and that she should tell him "to lay off before he got hurt."
By late March, Milford Rivet Company discontinued its arrangement of service in Milford with C & A and awarded the business to Caron, who began servicing the company on April 1, 1967. Grasso then attempted to induce other refuse removal dealers to exert pressure upon Caron to cease and desist his Milford activities. Accordingly, on April 3rd Grasso and Pellegrino visited Peter Bertase, who with his son-in-law William Lock-wood was the owner of Call Peter, Inc., also in the refuse removal business. Grasso advised Bertase, "If I don't get (the stops) back, I'm going to do something about it" or "there would be trouble." He ordered Bertase to call Caron, which he did, attempting to induce Caron to surrender the "stop." Bertase informed Caron that he had a similar problem with Grasso when Bertase had taken five accounts from C & A and "out of five I got one. I gave four back."
The BIRCA Meeting of April 7, 1967
Bridgeport Independent Refuse Collectors' Association (BIRCA) is a refuse collectors' trade and social organization in and around Bridgeport. Pellegrino was a member but Grasso and Tropiano were not. Pellegrino and Grasso caused a special meeting of this group to be called for April 7th by speaking to the president, William Lockwood. Caron with his father and two other members, Joseph Pauley and Charles Williams, attended this meeting in Fairfield, Connecticut, which was held at the garage of the Reliable Sanitation Company, a BIRCA member. On the way Caron stopped and picked up a one-way pocket radio transmitter from Connecticut State Police Trooper David Paige and Lieutenant Pat Carroll of the Fairfield Police Department for protective contact with the police. At the meeting Pellegrino introduced Grasso and Tropiano and turned the meeting over to Grasso, who told the members that Caron should keep away from his customers and that if the members did not cooperate to keep Caron out of Milford, he would purchase trucks and send them into Bridgeport with "enough muscle" to give the local people "a rough time." When Caron asserted his right to do business where he chose, Grasso said, to use Caron's words, "that where he comes from in New York, guys like me they knew how to take [care] of me; I would end up with either my arms broke or in the river," and that "you can stretch a rubber band just so far and it's going to break and somebody is going to get hurt." Tropiano stated that he had the money to buy the trucks and to furnish the muscle if Caron was not persuaded to stop servicing Milford customers. After the open meeting, Tropiano had a conference in the back room, during which he told Lockwood that it was the latter's duty to obtain the stop from Caron for Tropiano or buy the stop back and give it to C & A or pay C & A directly for the stop. When Caron denied undercutting Grasso's price for the Milford Rivet account, Grasso called Caron a liar. Caron, nevertheless, continued to service this account.
On April 9th, in order to convince Grasso and Tropiano that Caron was not undercutting their service price, Mrs. Caron interviewed Robert Reiss, the manager of Milford Rivet Company, and obtained from him a false purchase order of $125.00 a month, which was given to Pellegrino on April 10th. According to Reiss, she appeared so nervous and disturbed at the time that he made an appointment to see the Mayor of Milford. A week later Caron received a call from Pellegrino, who said Caron was "a fool * * * that I have a very nice family and that it would be a shame if something happened to my children on their way to school, or my wife." Caron did nothing about the two accounts but he took his children off the school bus and had his wife drive them to and from school four times a day. At the same time his home was placed under police surveillance, and Mrs. Caron was in such an emotional state that her doctor prescribed tranquilizers.
Not until the following July 4th did Caron hear from any of the appellants. On that day Grasso arrived uninvited at Caron's home during a family picnic. Caron told Grasso that he would not relinquish the two accounts but he agreed not to solicit any more business in Milford and, specifically, not to solicit any of Grasso's customers. Caron planned to build a business in Milford and his agreement to surrender this plan was due to fear for ...