Appeal from a judgment entered in the United States District Court for the Southern District of New York, Charles S. Haight, Judge, after a jury verdict convicting appellant of conspiring to commit extortion "under color of official right," 18 U.S.C. § 1951 (1982), and of extorting and attempting to extort "under color of official right," 18 U.S.C. §§ 1951, 1952 (1982).
Paul Campo appeals from a judgment of conviction entered on March 12, 1985, following a jury trial before Judge Haight in the Southern District of New York. In this, his second trial, Campo was convicted on two counts of extorting and conspiring to extort "under color of official right" in violation of the Hobbs Act, 18 U.S.C. §§ 1951, 1952 (1982).*fn1 Campo does not dispute his receipt of improper payments while a New York City policeman. Rather, he claims there was insufficient evidence to prove that he induced the payments, and thus misused his official office. Because we find that there was sufficient evidence that Campo made a "request, demand, or solicitation" for the payments in his capacity as a police officer, we affirm.
Campo was a patrolman in the New York City Police Department's Tenth Precinct, in the Chelsea section of Manhattan's West Side. He and his partner Raphael Commisso were permanently assigned to patrol sector "A" of the precinct between September, 1979, and October, 1981. They also worked intermittently with other patrolmen or in other sectors.
The Funhouse Disco opened in early 1979 at 526 West 26th Street, in sector "D" of the Tenth Precinct. Catering to a young crowd, the disco was open for business two nights a week, on Saturday mornings until about 6 a.m. and on Sunday mornings until about 8 a.m. The Funhouse attracted large and often unruly crowds, and the disco employed a number of "bouncers," headed by a man named Angelo. In addition, a number of assaults occurred in the vicinity, and many cars parked illegally near the disco.
According to the testimony of Patrolman Thomas Peteroy, in May or June of 1979 Angelo entered into a "contract" with two Tenth Precinct patrolmen. The contract provided that the police assigned to sector "D" would remain in front of the disco as much as possible on weekend nights, and in return would receive $50 a night. Pursuant to the contract, Angelo regularly paid the two policemen assigned to the sector to park in front of the Funhouse, to ticket the double-parked cars, and to keep watch on the vandalism and unruliness that accompanied the late-night revelry. Angelo regularly delivered $50 cash, later raised to $75 for the Saturday-Sunday shift, to the two officers before they went off duty at 8 a.m.
During the course of the contract, Officer Peteroy was regularly assigned to sector "D" on weekend nights. Peteroy testified that on these nights he parked his radio car in front of the Funhouse, left the disco only when ordered to other duty by a radio call, and returned to the disco upon completion of the call. As a result, he failed in his duty to patrol the entire sector. Between fifteen and twenty officers shared at least one such shift with Peteroy. He testified that he split the night's payments with each of those officers, except for three he didn't trust. Commisso rode with Peteroy and split the payments on five to ten occasions. Campo never rode with Peteroy during the course of the contract. Campo did, however, patrol sector "D" on about eleven weekend nights with his regular partner Commisso.
In 1979 Campo and Commisso asked Peteroy if they could have the "D" sector on an upcoming weekend night. Before the shift began, the two officers heard that Angelo wanted to talk with policemen assigned to the sector. When the officers went to 26th Street that night, Angelo waved them over. He told them he would appreciate their giving the block as much attention as they could because of recurring fights and double parking. Commisso testified that he answered: "[W]e would certainly patrol the street as much as we could, but we also had other duties to perform. We had to take care of the rest of our sector and we had to answer our jobs." The street was busy that night, and Commisso and Campo spent quite a bit of time there. Toward the end of the shift, shortly before 8 a.m., Angelo once again waved the police car over. He thanked the officers for being around and dropped $50 through the window of the car. Commisso testified that the officers were surprised and that he thought that is was "a lot of money." After discussing whether to keep the money, the two decided to split it.
After this incident, Commisso and Campo worked the same shift about ten more times, with a total take of no more than $250 each. The officers habitually spent a large portion of such shifts near the Funhouse, and Commiso testified that they anticipated getting paid by Angelo. Near the end of each tour, they would return to the Funhouse as the disco was closing up. Angelo would pay them at that time.
On on night, other work kept the officers away from 26th Street, and Angelo declined to pay them when they came by in the early morning. Angelo resumed payment on subsequent occasions when the officers had been visible outside the disco.
Peteroy further testified that Commisso and Campo discussed with him the fact that the Funhouse was staying open very late into Sunday morning. Thereafter, Peteroy talked with the officers who had originally set up the contract, and the payoff was soon raised to $75 for the Saturday-Sunday shift.
Campo was convicted on both counts of the indictment on September 19, 1983. That conviction was reversed an remanded by this court in light of the en banc decision in United States v. O'Grady, 742 F.2d 682 (2d Cir. 1984). United States v. Campo, 744 F.2d 944, 945 (2d Cir. 1984) (per curiam). Campo's retrial commenced on January 14, 1985, and concluded two days later, when the jury once again returned guilty verdicts on both counts. On March 12, 1985, Judge ...