The opinion of the court was delivered by: KORMAN
Matthew Taylor ("Taylor") was charged in a multi-count indictment with extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, and other crimes. After a four week trial, Taylor was convicted of attempted extortion and extortion at two construction sites where the Flintlock Construction Company ("Flintlock") was the principal contractor. Count Twenty-Two charged that, on or about October 1, 1990, the defendant Matthew Taylor together with others
attempted to obtain money for a Coordinator and employment for members of United Brooklyn at the Flintlock Construction, Inc. site on Roebling Street in Brooklyn, from and with the consent of Flintlock Construction, Inc., which consent the defendants attempted to induce by the wrongful use of actual and threatened force, violence and fear
(the "Roebling Street site"). In almost identical language, Count Twenty-Four charged Taylor with extortion at the Hewes Street construction site on or about July 1, 1991 (the "Hewes Street site"). The only difference was that Count Twenty-Four charged Taylor with attempt to commit extortion as well as the consummated offense of extortion. The earlier count was limited to the inchoate crime of attempt. Moreover, Taylor was charged both as a principal and as an aider and abettor in both counts.
Taylor moved for a judgment of acquittal, alleging that there was insufficient evidence to show he directly extorted or attempted to extort the specific property alleged in the indictment, i.e., "money for a Coordinator and employment for members of United Brooklyn." While Taylor impliedly conceded that the evidence was sufficient to sustain a conviction for obtaining subcontracts for his companies from Flintlock at the two sites, Tr. 6, Oct. 21, 1994, he argued that these subcontracts cannot sustain his conviction on Counts Twenty-Two and Twenty-Four because he was not charged with obtaining them by extortionate means. Taylor also moved under Rule 33 for a new trial, citing recanted testimony. These motions were denied prior to sentencing. The purpose of this memorandum is to set forth in detail the reasons for these rulings.
Matthew Taylor and Delroy Collins ("Collins") founded United Brooklyn ("UB") in late 1987 or early 1988. Tr. 501. UB was one of a number of so-called "coalitions" operating in New York City, which the prosecution alleged subjected the construction industry to continuous extortionate conduct. While Taylor did not testify, the defense at trial was predicated on the assumption that the conduct in which UB and other coalitions engaged was necessary to force construction contractors to employ minority workers.
Critical to the commission of the extortion scheme pursued by Taylor and his accomplices was the "shape."
Collins testified that a "shape" is "when the people come to the office seeking jobs, we considered those the shape members. Shaping is going on the jobs, construction sites, looking for work." Tr. 498. The "shape" would use "threats" or "fights" or physical interference with the work, such as "pulling the plug on the generator" or "turning over equipment," Tr. 513-14, to get the contractor to hire some UB members and to pay a "coordinator" designated by UB.
Taylor also owned several companies that provided security or performed subcontracting work (the "Afro companies"). Part of the UB modus operandi was to approach the contractor for jobs and coordinator payments, and then to extort subcontracts for these Taylor-owned companies. Collins described the use of the UB "shape" for these purposes:
Q: Now who got the contractors to sit down with Matthew Taylor about his . . . security company and contracting company . . .
A: It all started with the shape. Going to the job either -- going to the job either from demonstrating the job, bringing the contractor to what we call to the table.
UB was not the only such coalition operating in New York during this period. Taylor was indicted along with members of other coalitions using methods similar to UB to extort money and jobs from construction contractors. See, e.g., Tr. 509. One of the "benefits" of signing up with a coalition such as UB was that, if other coalitions subsequently showed up at the site, these other coalitions would probably not press their extortionate demands. Pursuant to an understanding between them, most coalitions would yield to the first coalition that had been retained by the contractor. See Tr. 509-510. UB was also one of the largest coalitions and would use force if it was not shown such deference. See Tr. 543.
The person designated by UB to deal with other coalitions was sometimes, although not always, designated as the "coordinator." The "coordinators" would receive a set weekly salary unrelated to any efforts that they were required to undertake on the contractor's behalf. While it was a matter of dispute whether the "coordinator" was a legitimate position, there was sufficient evidence for the jury to conclude that the salary was provided for little or no work and that it was essentially designed as a cover for a "seldom show," if not a "no show," job. Indeed, Andrew Weiss, the president of Flintlock, declined to pay $ 1500 a week to a UB designated coordinator at the Roebling Street site. Weiss testified that the position was nothing more than a "no show" job, and that such payments were not permissible on a federally funded project. Tr. 903.
Taylor founded, financed and controlled UB. Taylor put up the money to start UB, handled the cash before UB got a bank account, and arranged for UB's incorporation. Tr. 746-48, 875. When UB moved into its Fourth Avenue office in January, 1991, Taylor paid for the rent and telephones out of his own pocket. Tr. 518, 746. Collins or Taylor would personally lead the "shapes" at the beginning. Tr. 503. Early UB business cards said "Organizer: Matty Afro Taylor," referring to Matthew Taylor. Tr. 508. Taylor's brother, Mert Taylor, was also involved in UB. Tr. 502.
Although Collins was the de jure president of UB, Tr. 875, Taylor was the de facto head of UB. Taylor decided which construction sites would be approached, Tr. 641-42, 794, and he and Collins would decide, once a "shape" convinced a contractor to hire a coordinator, who would get the money and the position. Tr. 525. Taylor took money for various coordinator positions, and used his control to gain "most" of the coordinator positions for himself. Tr. 773. As Collins testified:
Q: Now why did . . . Matthew Taylor, have so many coordinators' positions, as compared to you and your brother?
A: 'Cause he was the boss.
Tr. 535. One tape of a conversation between Taylor and a coalition member named Angel, recorded in early 1992, exemplifies Taylor's direct involvement in targeting construction sites to be approached by the "shape." During that phone conversation, Taylor gives Angel a list of jobs to "go by" and he tells Angel to "get information that he can from the foreman about the jobs" on Hall Street. Tr. 641. Angel asks "what do you want me to do on Hall Street, shut them down?" and Taylor replies "make the guy call me." Tr. 642.
At some point in 1992, after the extortionate acts alleged in Counts Twenty-Two and Twenty-Four, Taylor "distanced" himself from UB because he feared he was being investigated. Tr. 792. While Taylor spent less time at UB headquarters, he nevertheless continued to actively monitor and control its day to day activities. Collins described Taylor's relationship with UB during that period in the following colloquy:
A: I mean, he'll call in. I would still have to report to him and let him know day in and day out activity, as well as any other organizers. He'll meet with them after work, before work, call each other and talk about what taking place today or what happened or what to do before the day start, either what particular job he might want us to go to that morning or the next day.
Q: You were the head man, correct?
A: No. Down in the office, inside United Brooklyn, I was in charge of day to day activities down there, but as ...