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United States v. Zappola

decided: April 30, 1982.

UNITED STATES OF AMERICA, APPELLEE,
v.
GEORGE ZAPPOLA AND ROBERT MELLI, DEFENDANTS-APPELLANTS.



The defendants appeal from judgments of conviction for attempted extortion in violation of the Hobbs Act, 18 U.S.C. §§ 1951 & 2 (1976), entered in the Southern District of New York, Haight, J. presiding. Affirmed.

Before Lumbard and Oakes, Circuit Judges, and Friedman, Chief Judge, Court of Claims.*fn*

Author: Lumbard

This appeal turns on whether defendants, charged with attempted extortion and conspiracy to extort, may assert, as a defense, that their demands for compensation for business losses caused by their intended victims were made in the reasonable belief that the victims owed them such compensation. We hold that the district court did not err in refusing to charge that such reasonable belief is a defense. The defendants, George Zappola and Robert Melli, were convicted in the Southern District of New York, Haight, J., of attempted extortion in violation of the Hobbs Act, 18 U.S.C. §§ 1951 & 2 (1976), following a ten-day jury trial that ended on October 21, 1981. On December 11, 1981, the court sentenced Zappola to nine years imprisonment and Melli to six years. Finding no error, we affirm.

I.

George Zappola and Robert Melli owned and operated the M&R Repair Co. ("M& R"), which repaired containers for shipping companies at its lot in Newark, New Jersey. Its largest client was Japan Line, Inc., a large shipping company centered in Port Newark. In 1976 and 1977, the containers were delivered to M& R by World Trade, Inc., a trucking company owned by John Marano, William Ross, and Harold Hagy. At the direction of Japan Line, World Trade would move containers and container chassis to and from piers, railyards, and repair and depot facilities.

In early 1977, World Trade stopped delivering containers to M&R for repair work, and began sending them to a competing shop, Maher Terminals. There is some evidence that the diversion of Japan Line containers was directed by Marano, whose son-in-law, Joseph DeNicholas, and former employee, Louis Fenza, both worked at Japan Line. Meanwhile, Marano surreptitiously approached Japan Line with a proposal to start a joint venture to do Japan Line's storage and repair work. He had previously discussed a joint venture with Zappola.

In May of 1977, Zappola began to notice the sharp drop in business in his yard. He called Marano to ask if he knew why containers were no longer being delivered to M&R and Marano replied that the World Trade simply brought the containers wherever Japan Line directed.

On June 6, 1977, Marano received a call asking him and Ross to come to M&R. Marano and Ross went over to the M&R office, which was in a trailer in the M&R repair yard. Zappola and Melli were waiting for them in the back room. Zappola began cursing and yelling, accusing them of stealing his business by diverting containers to another facility. Zappola claimed that as a result he had lost $38,000. Pulling a gun on Marano, Zappola said, "You're the SOB that's doing it."

Marano denied the accusations, but Zappola was not appeased. He smashed Marano in the face, sending Marano's glasses flying and cracking a tooth. As Marano tried to stem the flow of blood from his mouth and nose, Zappola demanded that Marano and Ross make good M&R's losses from the diverted containers. Crying, pleading, Marano tried to explain that the decision to divert the containers was Japan Line's and he had nothing to do with it. Zappola called him a liar, fired the gun into the wall, and smashed Marano in the face again, almost knocking him out of the chair.

Before releasing Marano and Ross, Zappola turned to Melli and asked him to search the two to see if they were "wired," adding that if they were, "I'll kill them right now."

Satisfied that his message had been delivered, Zappola told the two to get out while they still could. "We'll be in touch," was his parting shot.

Marano reported this conversation to the FBI, with whom he had been cooperating in an unrelated matter. The FBI monitored Marano's future contacts with the defendants.

On Wednesday, June 22, 1977, Marano and Melli met at the Holiday Inn in Jersey City. Melli demanded that Ross and Marano pay him and Zappola $39,000 "by Friday" and implicitly threatened them with violence if they failed to pay up. He began with the claim that "we were fleeced thirty-nine six, by your business.... Look, we're short thirty-nine thousand, six hundred dollars.... We got f***. We, wanna get paid."

Melli made it perfectly clear that he expected Marano and Ross to make good M& R's loss: "You got to the end of week to come up with it.... Give me that f*** money." Nor did he shy away from suggesting the consequences of not paying: "I'm not gonna argue with you.... I don't want to hear no for an answer.... If you're gonna pay, then we forget about it. I'm not going to take any more of it. ...


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