Appeal from conviction in the United States District Court for the Southern District of New York, Robert L. Carter, Judge, of conspiracy to extort and substantive convictions of attempted extortion or acts of extortion on the basis of insufficiency of the evidence, a conscious avoidance charge, and juror taint.
Before : OAKES, NEWMAN, and KEARSE, Circuit Judges.
Thomas Ciambrone appeals from a conviction in the United States District Court for the Southern district of New York, Robert L. Carter, Judge, for one count of conspiracy to commit extortion and three counts of attempted extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1982). Ciambrone was sentenced to a term of imprisonment of ten years on each of the counts on which he was convicted, the sentences to run concurrently, and to pay a fine of $4,000 on each count. We affirm.
There is no question that there was a conspiracy to commit extortion and that numerous overt acts were committed in furtherance of that conspiracy. Thus, the major question before us is whether there was sufficient evidence of appellant Ciambrone's participation in the conspiracy. Additional questions are raised as to the admission of co-conspirator statements against him, the district court's instruction on conscious avoidance, the possibility that a juror's remarks that the defendants "were on the fringe of the Mafioso" or "part of the mob" tainted the jury deliberations, and whether appellant should have been tried with his obviously guilty younger brother, Jerry Chambrone, and with joseph Vincent Riggio, Jr., who among other things sought to blow up the car of one of the victims and did manage to burn down another victim's house and business office with Molotov cocktails. Jerry Chambrone was convicted and did not appeal. Riggio pled guilty and testified for the Government.
The goal of the extortion scheme was to regain for T.J. Associates ("T.J."), a company owned and operated by Thomas Ciambrone and his brother Jerry, certain delivery business of Computer Sciences Company ("CSC"), a nationwide computer services company. CSC had transferred that business from T.J. to Apple Messenger Service ("Apple"), a company operated by Donald Miller. Appellant Thomas Ciambrone was president of T.J., and though he lived in Florida during the time period covered by the indictment--May 1982 through January 1984--was in regular contact with the T.J. office in White Plains, New York, and responsible for major business and operations decisions. Jerry Chambrone was the on-the-spot manager of T.J. and responsible for the day-to-day operations of the business.
CSC provided accounting and payroll services to a number of businesses, and using its data base, it would print out payroll checks that were delivered to clients in various geographical areas. For some time prior to November 1982, T.J. made CSC deliveries to Zone 48, which is in Westchester, Putnam, and Dutchess Counties in the state of New York. After Brinson Weeks, a CSC employee, was transferred from corporate headquarters in California to the White Plains office, however, he hired Apple to replace T.J., and on November 15, 1982, Apple began servicing the Zone.
About the time that T.J. lost the Zone 48 business to Apple, Jerry Chambrone spoke about it to Joseph Riggio, a childhood friend of Jerry and of his brother Thomas. Chambrone told Riggio that Apple president Miller had "infiltrated a trucking route which was under contract by T.J. and had made no attempt to come and try and talk to us ab[o]ut it." Chambrone asked Riggio to talk to Miller and "make the man understand what he was doing wasn't right."
As a result, Riggio went to Miller's home in West Milford, New Jersey, on November 20, 1982. Riggio urged Miller to stop doing business with CSC. Although Riggio denied it, Miller testified that during this conversation Riggio threatened to burn down his house and blow up his car. Riggio himself admitted at trial that he had compared the payroll delivery business to the garbage business, suggesting that truckers have "area rights" and that "the only way to survive" is to have "respect for each other's work." Miller also testified that Riggio "said he was sent by Tom Ciambrone." Riggio told Miller, as they both testified, that the [Ch/Ci]ambrones had "obligations in New York City" and that "[t]here are certain friends that take a personal interest in their business dealings and financial obligations." Miller told Riggio he wanted to speak to Thomas Ciambrone, and Riggio agreed to arrange a meeting.
Riggio then relayed his conversation with Miller to Jerry Chambrone and warned Jerry that Thomas Ciambrone's conversation with Miller should be "strictly business" since Miller might be tape recording the conversation. Jerry Chambrone said he would relay Riggio's description of the conversation with Miller to Thomas and told Riggio that his brother would take an 11:30 flight from Florida to New York the following day, November 21, 1982. Riggio relayed this information to Miller, who agreed to meet with Thomas Ciambrone on November 22, 1982.
Thomas Ciambrone caught his 11:30 flight and made several attempts to reach Miller during the day and evening of the 22nd. The Apple president, however, spent the day with the New Jersey State Police, and Ciambrone's initial efforts to contact him at work were thus unsuccessful. At 9:30 p.m., after making numerous phone calls and after going to the Apple office and banging on the door, Thomas Ciambrone finally reached Miller by telephone at home and they agreed to meet the following day.
Miller wore a microphone and transmitter during his meeting with Ciambrone so that the conversation that took place was recorded by the New Jersey State Police. A transcript and tape recording of that conversation were in evidence at trial with only a few details of the conversation in dispute. This court has listened to the tape recording. The conversation is important to the case and therefore will be recounted here at some length.
After some preliminary amenities, Miller asks Ciambrone, "So what do you have to talk to me about?" Ciambrone responds, "I just thought there was a couple things you should know so, the rest of it is up, up to you." According to the Government's version of the tape, Thomas Ciambrone then says, "We have a contract with them. I want you to realize that, ya know. And uh, are you facing me because I am on tape recorder or . . .?" According to appellant's version, he says, "We have a contract with them. I want you to realize that, ya know. And, uh, are you facing that way because I'm not tape record--[unintelligible]." We think the Government's version makes more sense and, having listened to the tape, are convinced that in any event Thomas Ciambrone, following up on Riggio's suggestion to Jerry Chambrone, was-almost in a laughing manner- checking out whether he was being tape recorded. Miller replies, "No. You want me to sit this way?" Appellant says, "I don't care." He then begins to talk about his contract with CSC and T.J.'s eighteen years of work for the computer company. Partly unintelligible conversation takes place in the course of which Thomas Ciambrone says that "we're goin[g] to court," and then he says that
all the other messenger services, heavy, heavy messenger services, uh, armored trucks, (unintelligible) they haven't bothered to touch it because they know the situation and I guess you didn't know so I just figured I let you know because what it will end up being is we're going to court. You'll probably be named in it which will be very stupid. You'd have to be.
After discussing the litigation, Ciambrone adds, "I just figured when the drivers, for some reason have been pissed, and said they were gonna take things in their own hand and all the rest of that shit, I said that's stupid. Right!" This last comment could clearly be taken as a hint at violence on the part of T.J.'s drivers.
After some more discussion, Ciambrone informs Miller,
I felt personally, okay, I can't speak for other people but since I'm the owner of the company uh, I think you should just . . . .You're turning open a big can of worms here. They're using ya. And I know you want the business. They're holdin[g] back. Show you letters, payment that they owe us for some work that we've done.
Miller tells Ciambrone that CSC asked him to apply for the business, that he gave the company a price on Zone 48, and that CSC accepted his offer.
The conversation then turns to a subject of critical importance in determining whether Ciambrone was involved in the conspiracy. With obvious reference to Riggio's comments of two days before, Miller says, "Alright now I'm being threatened. Where, where do I come down there. Where do I stand?" Ciambrone abjures, "Not by me you're not [being threatened]." Miller responds, "Well, Joe Riggio came here and said he was sent by you. Said he . . . ." Ciambrone interrupts,
No sir, not by me. I don't, I don't threaten anybody. I never threatened anybody in my life. Ever. Like I said, and I say this very seriously. The drivers have gotten really, they grew up with everybody here and some of the people what work for you grew up with them. Okay. Uh, I don't deal in business that way, I never have."
Parenthetically, it may be noted that the reference to the drivers is presumably to Ciambrone's earlier comment ...