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United States v. Ruggiero

decided: January 23, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOSEPH RUGGIERO, DEFENDANT-APPELLANT



Lumbard, Feinberg and Mansfield, Circuit Judges.

Author: Mansfield

MANSFIELD, Circuit Judge:

The principal issue upon this appeal by Joseph Ruggiero from a judgment convicting him, after a jury trial, of giving false testimony before a federal grand jury in violation of 18 U.S.C. ยง 1623,*fn1 is whether he was denied a fair trial by reason of the failure to turn over to him a transcript of the testimony of certain other witnesses before the grand jury. Ruggiero contends that the refusal of the government to disclose the testimony and of the trial court to direct such disclosure constituted a suppression of exculpatory evidence in violation of his rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We disagree and, finding no merit in the other grounds advanced by appellant, we affirm.

The prosecution of Ruggiero, a politically active attorney, former law chairman of the New York County Republican Party and counsel to the New York State Racing Commission, arises out of testimony given by him on March 4, 1971, before a federal grand jury with respect to the purpose of a $2500 cash payment received by him in 1967 from Herbert Itkin, later a government informer, in the presence of James Marcus, former New York City Water Commissioner, and Charles Rappaport, an associate of Itkin. The indictment also charges Ruggiero with giving false testimony as to his familiarity with the name of one Jack McCarthy, a "labor consultant" to Carey Transportation, Inc. ("Carey"). The government contended and introduced evidence at trial to show that the $2500 payment was an installment of a larger sum furnished by McCarthy on the understanding that Ruggiero would pay over the $2500 to a member of the New York State Public Service Commission, James Lundy, to obtain the denial of an application by Brown Limousine Service ("Brown"), Carey's competitor, for authority to operate buses for air crews and passengers in and out of Kennedy Airport. The substance of Ruggiero's testimony, later repeated by him at trial, was that he received the $2500 solely as a fee for his own services in exerting his influence and that of Vincent Albano, Chairman of the New York County Republican Party, upon Lundy.

To understand the issues, including the significance of the specific grand jury testimony of Ruggiero which formed the basis of the prosecution, a brief summary of those facts which the jury was entitled to find from the evidence is essential. The drama opens in February or March of 1967 when Marcus and Itkin were approached by Jack McCarthy, Carey's "labor consultant," who inquired whether the Brown application could be blocked. McCarthy indicated that "there'd be $10,000 available if it could be stopped." After a preliminary approach by Itkin to Ruggiero, a meeting was held between McCarthy, Itkin, Marcus and Thomas Sheridan, an attorney for Carey, at which the details of a plan to achieve the objective in return for $10,000 were discussed. Itkin and Marcus then met with Ruggiero, who agreed to see Lundy about the matter of stopping the Brown application but expressed annoyance at their having fixed the price "before you found out how much it will cost in Albany, what Lundy will charge?" In a further talk with Itkin, Ruggiero insisted that he needed $7500 to carry out the scheme, saying "You can't pay off a commissioner a few hundred dollars. Now either get me the money or forget the deal." After talking with McCarthy, Itkin agreed to pay the $7500 demanded by Ruggiero.

A few days later Itkin and Marcus, this time joined by Rappaport, met again with Ruggiero. Thereupon Itkin passed $2500 in cash in an open envelope to Ruggiero. Itkin, urging Ruggiero to be successful, advised that Jack McCarthy was "on my neck," to which Ruggiero replied that he had dealt with "McCarthys" and would fulfill his part of the deal. However, the scheme failed. In June of 1967 the Public Service Commission granted the Brown application to the extent of awarding it the right to transport passengers by bus from Kennedy Airport, and crews by bus from major New York City airports, to designated nearby hotels.

McCarthy complained about the Public Service Commission's decision and demanded the return of the money. Ruggiero countered that he was entitled to the balance of the $7500. Though a meeting between Ruggiero and McCarthy never materialized, Ruggiero did meet with Sheridan who demanded the return of all monies. The matter ended in a stalemate.

On March 4 and 9, 1971, Ruggiero testified before a federal grand jury. The following questions and answers formed the basis of the three counts of the indictment here under consideration, on which he was found guilty:

"COUNT ONE

"Q. When Mr. Itkin originally told you how much money would be available, did you tell him that was not enough, because money had to be paid before you could do anything to block Brown? A. No, sir.

"Q. Did you ever suggest anything like that, that it was not enough, because money had to be paid before you could do anything to block Brown, -- to Mr. Itkin, Mr. Marcus or Mr. Rappaport? A. Absolutely not.

"Q. Did they ever ask you to pay anybody any money to block the Brown Company? A. No, sir.

"Q. Was there ever any understanding between any of the four that I've mentioned, -- yourself, Mr. Itkin, Mr. Rappaport or Mr. Marcus, -- for you to receive money to pass on, so ...


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