Before BIGGS, Chief Judge, HASTIE and SMITH, Circuit Judges.
BIGGS, Ch. J.: The defendant-appellant Anthony Provenzano, was indicted on November 15, 1960, in a single-count indictment charging him, an officer of Local 560, International Brotherhood of Teamsters (Local 560), with obstructing, delaying, and affecting interstate commerce from January 1, 1952 to June 1, 1959, by extorting through economic fear from Dorn's Transportation Company, Inc. (Dorn Company or the Company) or from Walter A. Dorn (Dorn), its Vice President in charge of operations, the sum of $17,100 in violation of 18 U.S.C. § 1951 (the Hobbs Act). The indictment is set out below.*fn1 Provenzano was convicted and has appealed.
The record discloses the following: On some date prior to January 1, 1952, Dorn Company decided that it would move its trucking terminal from New York City to Secaucus, New Jersey, and did in fact move its terminal there on January 1, 1952. The Company executed a five-year lease with the owner of the premises at Secaucus at a monthly rental of $1700, paying the rent six months in advance. At some date, after January 1, 1952 but during the time the Company was still under the jurisdiction of New York Teamster Local 707, Provenzano and Anthony Castellito, business agents for Local 560, appeared at the Secaucus terminal and presented a contract with Local 560 bearing Provenzano's signature to the Company's terminal manager for execution. The Company executed this contract on a later date not critical here.
Labor problems seemed to develop almost as soon as the Secaucus terminal was opened. An early problem involved a day switcher, Melchiona, i. e., a yard man employed to connect and disconnect trailers to trucks at the terminal. There is evidence to support the conclusion that Provenzano wanted Melchiona made a full-time dayswitcher at the Secaucus terminal. The Company apparently acceded to this desire. Soon thereafter a more serious labor problem arose. The drivers refused to back their trucks into the terminal bays at the Secaucus terminal and to "break" the trailers from the tractors in the bays, assertedly resulting in congestion of the terminal yard. There was testimony that it was the duty of the drivers to back their trucks into the terminal bays and break their units. The period of congestion, according to the Government's witnesses lasted for from four to nine weeks, occurring in the first six months of 1952, although immediately following the move from New York to New Jersey the Company's business had not increased. The terminal managers testified that it was the refusal of the drivers to back their trucks into the bays and to break their units that created the congestion. The Company's Vice President of Sales, Hoeting, testified that during this period of congestion:
"It wasn't one or two drivers, it was the group . . .",
and that this "slowed down the operation." Garcia, a dispatcher and a terminal manager at Secaucus, testified that every driver refused to back his truck into the bays during the period of congestion. Dorn testified that "the operation had become expensive, service suffered, and we had a continual problem."
The record further shows that Dorn in 1952 was Vice President of the Company, that the enterprise was controlled by his brother, and that Dorn himself owned 15% of the stock. Garcia reported to Dorn that the drivers were refusing to back their trucks into the bays. Adelizzi, the general manager of the Empire State Highway Transportation Association, had apparently proved useful in settling the switching dispute referred to previously and for this reason Dorn again brought Adelizzi to New Jersey. Adelizzi testified that the Company had reported it was having difficulty with its men who in some respects "were really sabotaging the job with slowdowns, or refusing to do what they were told." When Adelizzi returned to New Jersey there was a meeting between him, Dorn, Provenzano, Castellito, Melchiona, and Hoeting in an effort to resolve the Company's troubles. The meeting ended at "loggerheads". There was a second meeting which was no more successful. Castellito and Provenzano had told Dorn that "the men don't have to do this," i. e., back their trucks into the bays and break them, that this was yard work under the New Jersey practice. There followed a meeting in late April or early May of 1952 between Dorn and Provenzano and Castellito. According to Dorn's statement he told Provenzano and Castellito on this occasion:
"This is a situation we can't live with. We have to do something about it."
He asked them why the problem could not be straightened out. They replied that Dorn would have to see them in order to adjust it. Dorn asked for time, stating that he had no authority or control over the Company and that he could not make payments. He testified that at this time he "had the understanding that we were talking about the price of a man . . . approximately $100 a week." In May 1952 the three men, Dorn, Provenzano, and Castellito, met again and Dorn testified that he told them that he was willing to do something but that he did not have access to this kind or type of money, i. e., $100 a week. He stated to Castellito and Provenzano in substance that if he could find a way he would be willing to pay. He was asked by counsel for the Government:
"And what did you agree to do?"
"The best I could . . . I believe I felt that I had committed myself to the $100 a week if it could be possible."
In the latter part of May or in June 1952, Dorn met Provenzano and Castellito and on this occasion paid between $350 and $400 in cash to Provenzano in the men's room of the Swiss Town House, a restaurant. During the next fifteen months Dorn met Provenzano on three more occasions and paid him between $350 and $400 in cash on each occasion. Dorn testified on direct examination as follows:
"Q. What was the reason for your agreeing to do whatever Mr. Provenzano and Mr. Castellito asked you?" "A. I felt it was necessary to the operation of our business." "Q. What had been the effect on the operation of your business?" "A. The operation had become expensive, service suffered and we had a continual problem."
(Objections and rulings of the Court have been omitted from the foregoing quotation.)
Dorn testified that he had been making payments to the extent that he was able to do so and he had not advised the Company of the payments. If Dorn's testimony be believed it will be apparent that by mid1953 he had been paying Provenzano at the approximate rate of $100 a month, i.e., at approximately $1200 a year, instead of the rate of $5000 a year as apparently had been contemplated.
On some date in the second quarter of 1953, at another meeting, Provenzano informed Dorn that he had a lawyer whom Dorn could put on retainer and gave Dorn a slip of paper bearing the name of Michael Communale. The pertinent conversation on this occasion between Dorn and Provenzano according to the testimony of Dorn on direct examination was as follows:
"Q. How did the name Michael Communale come into this luncheon conversation between you and Mr. Provenzano?" "A. Mr. Provenzano mentioned Mr. Communale to me as a lawyer whom I could put on retainer." "Q. Had there been previous discussion with Mr. Communale with respect to placing a lawyer on a retainer - with Mr. Provenzano, rather?" "A. Not that I recall."
"Mr. Dorn, will you tell us what actually took place during the course of this discussion with Mr. Provenzano when the name of Michael Communale was mentioned? Now, tell us what happened."
"We had lunch and Mr. Provenzano mentioned to me that he had a lawyer. He gave me the name of the lawyer on a slip of paper. I mentioned the fact that in Albany we retained a lawyer at $200 a month. To the best of my recollection there was no specific demand made at that time, nor was there any discussion of the retainer fee."
He was asked in respect to a letter of retainer*fn2 that he wrote Communale much later:
"With respect to the substance of the letter, where did you get that information?"
Dorn testified in respect to the retaining of Communale that "it was the method of making the payment that I had committed myself to make at the second meeting in 1952." Dorn admitted that he had never met Communale. Compare the statement contained in the final paragraph of the retainer letter.
We deem further quotations from Dorn's testimony in respect to the engagement of Communale as unnecessary in this opinion.
The evidence shows that commencing on June 1, 1953, Dorn Company sent to Communale a check in the amount of $200 on or about the first of each month, every month until June 1, 1959, that the checks sent in September, October, November, December, 1953, and in January, 1954 were in the amount of $400 each. An examination of the evidence discloses only one mention of $200 as the amount of a monthly retainer in any conversation between Dorn and Provenzano.*fn3 The record also demonstrates that of the 73 checks sent by Dorn Company to Communale some were deposited in trust accounts and the rest were cashed. It will be noted that Dorn did not send the retainer letter (Government Exhibit No. 69) until August 10, 1953, and that it referred to an earlier conversation which the evidence seems to demonstrate never took place. The payments to Communale were carried on the books of Dorn Company as legal expenses.
The record also shows that on April 5, 1957, Dorn wrote Communale stating that he wished to cease retaining him as of May 1, 1957 and to employ him on an individual case basis thereafter. This letter is in evidence as Government's Exhibit No. 27.*fn4 The evidence is clear, however, that the payments by Dorn Company to Communale continued despite the letter terminating Communale's retainer until June 1, 1959, and that until that day the monthly payments were made in the usual manner.
The evidence also demonstrates that Communale was Assistant Prosecutor of Hudson County, New Jersey, from 1952 to 1959; that while he was Assistant Prosecutor he maintained a private law office in Jersey City, New Jersey; that throughout the period during which he allegedly represented Dorn Company he never met Dorn; that he never spoke with anyone from Dorn Company; and that his communications with Dorn Company were limited to approximately half a dozen letters, which with the exceptions of the two set out in notes 2 and 4 of this opinion are without real significance and dealt with very minor matters.
The record further shows that during the entire period in which payments were made, the first and only labor grievance between Dorn Company and Local 560 occurred in January, 1959, but that in the period 1960 through 1962 eight labor grievances arose.
As was said by the Supreme Court in Glasser v. United States, 315 U.S. 60, 80 (1942): "It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." For this reason we have ...