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August 13, 1976

Egidio CERILLI et al.

The opinion of the court was delivered by: ROSENBERG

 Egidio Cerilli, Ralph Buffone and Maylan Yakovich, defendants in the above entitled case, filed a motion for judgment of acquittal. The motion is in proper order by reason of the fact that an appropriate motion was made immediately after the Government had rested its case, and at the close of all evidence in the case prior to the matter being presented to the jury.

 The case commenced trial on April 26, 1976. After approximately three weeks trial, because of an ailment as ascertained by a medical crew at a highly recognized hospital, one of the jurors could not proceed with further deliberation and a motion of the defendants for a mistrial was granted.

 The defendants attack the Government's case on its ten count indictment, on its failure to show that interstate commerce was either involved or affected; and additionally, as to the last nine counts variously against the individual defendants, that the evidence as a whole is lacking in the required showing of the three necessary elements: (1) that the defendants induced victims to part with property; (2) that they did so by "extortion" -- the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official rights; and (3) that in so doing, interstate commerce was delayed, interrupted or adversely affected.

 The first count of the indictment charges all three defendants with conspiracy to violate an Act of Congress as follows:

"From on or about March 2, 1971 continuing to on or about December 1, 1972, in Westmoreland County, in the Western District of Pennsylvania, the defendants, EGIDIO CERILLI, RALPH BUFFONE, MAYLAN YAKOVICH and others whose names to the grand jury are unknown, did unlawfully, knowingly and willfully conspire, combine, confederate and agree together and with each other to obstruct, delay and affect interstate commerce as the term 'commerce' is defined in Section 1951, Title 18 United States Code and the movement of articles and commodities in interstate commerce by extortion, as the term 'extortion' is defined in Section 1951, Title 18 United States Code, that is to say, the defendants, in connection with the Pennsylvania Department of Transportation's practice of leasing equipment from the below listed owners, wrongfully and unlawfully did demand and did cause James C. Poole to pay $3,000, Thomas Altman to pay $200, Ramaley Brothers to pay $700, Earl Keibler-Excavating Contractor to pay $837, Walter G. Seigfried to pay $525, Paul Caletri & Sons Excavation to pay $75 with the consent of each of the above described payors induced by the wrongful use of fear and under color of official right." (Count 1, paragraph 18).

 This count then lists the substantive acts upon which the nine additional counts are based as overt acts as the supports for the First Count conspiracy charge.

 Count 8 charges defendant Ralph Buffone with attempting to extort $750 from Walter G. Seigfried at sometime in late April or early May, 1971. Count 9 charges defendants Maylan Yakovich and Ralph Buffone with extorting $525 from Walter G. Seigfried on or about May 3, 1971. Count 10 charges defendants Egidio Cerilli and Maylan Yakovich with extorting $75 from Paul Caletri & Sons Excavation from on or about April 1, 1972 to on or about April 27, 1972.

 The United States instituted this action by an indictment against the defendants, Egidio Cerilli, Ralph Buffone and Maylan Yakovich, by authority of authorization contained in Title 18 U.S.C. § 1951, which in pertinent part reads:

"Interference with commerce by threats or violence
(a) Whoever in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce by . . . extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both."

 In support of their motions for judgment of acquittal, the defendants claim in their combined brief that the prosecutor did not produce competent evidence to confer jurisdiction: first, that the evidence was insubstantial and therefore insufficient for a jury to find the defendants guilty beyond a reasonable doubt on such charges; second, that the prosecution failed to show that interstate commerce was affected; and third, that the prosecution failed to show evidence as to the element of extortion by certain defendants as charged in certain counts; and that, on the whole the prosecution failed to show that any extortion was practiced in violation of the Hobbs Act in order to permit a jury to find a verdict of guilt beyond a reasonable doubt as required by law, as to any count contained in the indictment, but particularly as to the conspiracy charge as contained in Count 1.

 All the evidence presented in the case by the prosecution follows substantially closely the charges contained in the indictment, except of course, the conclusionary or inferential evidence required to find that a conspiracy existed in accordance with the charge contained in Count 1 of the indictment. I said that the evidence is set forth substantially as it follows the charges contained in the indictment because on the whole there was evidence to that effect, but by reason of cross-examination the question of credibility of the witnesses became involved. As for instance, in the case of one of the witnesses, a contractor, testified that he had made a statement for the benefit of certain investigators and that he had submitted it to his daughter before he signed it; whereas, another witness for the prosecution, the daughter of the contractor, testified that her father did not submit it to her, but that the first time she saw this statement was when the investigators showed it to her. Thus, credibility became a matter for the jury as the prosecution presented its evidence.

 The case, on the whole, charged three defendants who were employed in various positions in the Pennsylvania Department of Transportation for the Commonwealth with seeking contributions for either the local Democratic Workers' Committee situate in Greensburg, Westmoreland County, or for, on one or two occasions, the Democratic Workers' Committee in Harrisburg. There was no question in all of the evidence that no monies or contributions were sought for the benefit personally of the three individuals. One of the defendants had been a hold-over from previous administrations and testified that this was a continuation of practices, as formerly, by the previous administration. In any event, out of approximately 103 contractors, only six here used as prosecuting witnesses were named as victims of extortion under the Hobbs Act.

 The Pennsylvania Department of Transportation is a division of the Commonwealth of Pennsylvania and has headquarters in various counties of the Commonwealth. In this particular instance, it has headquarters at Greensburg, Westmoreland County, and here were housed the administrators or heads of a division for this particular section. In some instances two or three counties were included for certain purposes in a particular area. The Department of Transportation, as it is commonly known as PennDot, is in control of the State highways of the Commonwealth and is the responsible department for constructing, re-constructing and maintaining these roads throughout the year. During the winter time, it is required to remove snow and to salt or cinder the highways in order to make them passable and useable. For these purposes it owns and operates Commonwealth equipment, but on occasion, and especially in emergencies, such as floods, or in the winter, additional specific equipment is needed to supplement that owned by the Commonwealth, such as graders, salt and cinder spreaders and the like. For these it enters into annual contracts for contingent uses to which these may be put if and when needed. Of approximately 103 contractors for this particular zone, not all their equipment is used, while some are used more than others. So that whether or not any of the contractors who agreed to conditionally lease their equipment ...

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