Appeal from a judgment of conviction, after a jury trial, of affecting commerce by extortion under color of official right and of attempting to affect commerce under color of official right, both in violation of the Hobbs Act, 18 U.S.C. § 1951. Affirmed.
Before Newman and Kearse, Circuit Judges, and Eginton,*fn* District Judge.
The defendant, Carl Scacchetti, appeals from a judgment of conviction on two counts of a three count indictment entered after trial in the United States District Court for the Western District of New York before a jury and Judge Harold P. Burke. The defendant was convicted on Count II for affecting commerce by extortion under color of official right in violation of 18 U.S.C. § 1951 and on Count III for attempting to affect commerce by extortion under color of official right in violation of the same statute, popularly known as the Hobbs Act. The defendant received concurrent prison terms on each count of one year and a day.
The defendant is an attorney who was elected Judge of the City Court of Rochester, New York in 1972. Jurisdiction of that court comprised both civil and criminal matters, the latter being limited to misdemeanor jury trials, although the defendant conducted arraignments and bail proceedings for criminal defendants charged with both misdemeanors and felonies.
At some point between 1976 and 1978 the defendant became friendly with one Albert Tantalo, a Rochester businessman who owned various automobile and tire operations in the area. Tantalo purchased a large volume of tires of many brands from locations outside of New York State. Tantalo sold some of his tires through a mail order operation to customers, some of whom lived outside the State of New York, and he advertised in national magazines to generate sales.
Another aspect of Tantalo's business involved the purchase of wrecked cars from State Farm Insurance Company. Some of the cars so purchased would come in from outside New York State. He sold used parts salvaged from the wrecked cars to organizations outside the State of New York.
The evidence presented to the jury on Count II essentially was that Albert Tantalo employed a young man named Christopher Alberti. In the spring of 1979 Alberti's license to drive in New York State was revoked. He continued to drive and was stopped and arrested for speeding and for driving with a license under suspension. His case was pending before the defendant in City Court. Alberti advised Tantalo of the situation, and Tantalo contacted the defendant, who said that he would see if he could help Alberti. There were several adjournments in the matter, ostensibly at the requests of Alberti's lawyer, although in fact Alberti had no lawyer. Finally the defendant dictated a disposition for the records of the City Court as follows:
"On motion of Judge Willis, the care of Christoford (sic) Alberti, the speeding charge is withdrawn and dismissed and the driving while license suspended is produced and withdrawn." (Gov't. App. 149)
While these events were taking place between May and July of 1979, a concurrent scenario unfolded. The defendant visited Tantalo at one of his places of business and informed him that he had a friend with an automobile that required repair. The defendant told Tantalo that he could help Alberti in his license suspension case, but that he wanted Tantalo to take care of fixing his friend's car. Tantalo had the car repaired for the defendant's friend, who was never billed for the repair work. Tantalo testified that Alberti paid for the repairs.
The evidence presented to the jury on Count III (the attempt) was to the effect that in the fall of 1979 Tantalo was indicted on conspiracy to distribute and possession with intent to distribute cocaine. After his arrest, he began cooperating with law enforcement authorities. In the course of that cooperation, Tantalo told the authorities about the Alberti incident involving the defendant. At the request of law enforcement agents, Tantalo placed telephone calls to the defendant in the presence of an FBI agent. These conversations were recorded and the tape recordings were presented to the jury. During the course of the conversations, Tantalo requested the defendant to do whatever he could in behalf of one Wesley Hutchinson, scheduled to appear in City Court before the defendant on an assortment of charges. While discussions continued between the defendant and Tantalo about Hutchinson, the defendant at one point mentioned that he wanted Tantalo to do him a favor and that the favor was that Tantalo procure a 35mm camera for the defendant. Law enforcement agents working with Tantalo procured a 35mm camera and a claim ticket for a motor drive attachment, which was not immediately available. The government offered no direct evidence that the defendant had in fact ever done anything in the Hutchinson case, as Tantalo had requested. The government introduced evidence that the defendant did receive the camera, although the evidence was inconclusive about the motor drive. Thereafter, a grand jury returned an indictment against the defendant charging him with violating the Hobbs Act by extortion and by attempting to extort under color of official right. Count II essentially involved the free car repairs that defendant had demanded in exchange for dismissing the Alberti charges. Count III concerned the camera which the defendant had demanded from Tantalo.
Although the defendant has raised nine separate points on appeal, the only issues that appear significant for extended review concern the adequacy of the Hobbs Act charge given to the jury.
Before turning to those central issues, we first dispose of those claims which require only brief discussion. The defendant raises a jurisdictional challenge based upon the alleged insufficiency of evidence presented to the grand jury as to the interstate nature of Tantalo's businesses. The defendant concedes that Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956) forecloses any argument as to the competency of hearsay evidence to support a grand jury indictment, but nonetheless challenges the adequacy of that evidence to satisfy the jurisdictional requirement of effect upon interstate commerce. Even if sufficiency of evidence before the grand jury on a jurisdictional element can be challenged, see United States v. Costello, supra, 350 U.S. at 363 (indictment valid on its face suffices to call for trial on the merits), the grand jury in this instance heard sufficient evidence concerning interstate aspects of Tantalo's business. The trial court's denial of defendant's motion to dismiss the indictment in the instant case was correct.
Defendant next claims that the trial court erred in failing to dismiss the indictment on grounds that the evidence offered at the trial constituted a material variance to the allegations set forth in the indictment. This claim is based on the wording of the indictment that alleged that Tantalo was engaged in interstate commerce, whereas the proof at trial showed that corporations in which Tantalo was involved were engaged in interstate commerce rather than the extortion victim himself. Defendant relies on Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), for the proposition that an accused must be definitely informed as to the charges against him so that he can prepare and present his defense and not be taken by surprise by the evidence offered at trial. However, in this case there was hardly any surprise to the defendant in view of the extensive testimony showing his awareness of Tantalo's relationship to the corporations. In fact, the defendant's interest in Tantalo seems to have been directly caused by his knowledge of the nature of Tantalo's corporate operations. As this court has recently noted, "convictions are not now set aside except for variance resulting in substantial prejudice to the defendant." United States v. Knuckles, 581 F.2d 305, 312 (2d Cir. 1978). No such prejudice exists in this instance.
Defendant next argues that the government failed to prove a prima facie case for the jury that the defendant committed that extortion affecting interstate commerce as contemplated under the provisions of the Hobbs Act. The parties agree, citing Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960), that there are two essential elements to a Hobbs Act offense: (1) interference with interstate commerce and (2) extortion, alleged in this case to be under color of official right. The parties rely on the same decisions of this court to support their respective contentions as to each of these essential elements of the offense. On the interference with commerce point, the decision of this court in United States v. Augello, 451 F.2d 1167, 1169-70 (2d Cir. 1971) cert. denied 405 U.S. 1070, 31 L. Ed. 2d 802, 92 S. Ct. 1518 (1972), is dispositive. The government correctly notes that Augello held that the extortion falls within the purview of the Act even if its effect on commerce is "merely potential or subtle." There is no question but that the use of the Hobbs Act in the type of case here presented does take the statute to its outer ...