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UNITED STATES v. BARNA

January 10, 1978

UNITED STATES OF AMERICA
v.
JOHN BARNA, ANDREW EWONISHON, JAMES J. MOORE, FRANK E. RUPP, JR., JOSEPH F. CERRA, and FRANK T. MANCUSO, Defendants


HERMAN


The opinion of the court was delivered by: HERMAN

The six named Defendants were charged in the first count of a six-count indictment with conspiracy to extort in violation of the Hobbs Act, 18 U.S.C. ยง 1951. Defendant Moore was charged, in Counts II and III, and Defendant Barna was charged, in Counts IV, V and VI, with substantive violations of the Hobbs Act. Counts II, III and VI were dismissed by the Court. At trial the jury found all Defendants guilty of Count I and Defendant Barna guilty of Counts IV and V. All Defendants have moved for a new trial or, in the alternative, for arrest of judgment.

 INTERSTATE COMMERCE

 The substance of the offense charged is that Defendants wrongfully used their position as members of the Carbondale Area School Board to secure payment to themselves of "kickbacks" from the firm of Riggi & Riggi, in return for the award of a contract for architectural services in connection with the construction of a new school building. The most substantial of the grounds advanced in support of Defendants' motion is that the effect of this transaction on interstate commerce *fn1" has been neither proven nor adequately pleaded.

 (1) Riggi & Riggi contracts with firms in California and Ohio for architectural renderings. TR 105-106. (There was no testimony as to whether any renderings were made in connection with this project.)

 (2) Bids on the project were solicited from contractors located outside of Pennsylvania. TR 110.

 (3) Materials acquired from out of state were incorporated in the new school building, the construction of which was supervised by Riggi & Riggi. TR 132.

 (4) Payments to Riggi & Riggi for work done on the project were often held up by Defendants pending negotiation of the amount to be "kicked back" from each payment. TR 124.

 The above evidence of interstate activity is scant, but it is sufficient to permit the jury to infer that Defendants' demand for "kickbacks" delayed the construction project, and its concomitant interstate flow of goods, in some degree, however insubstantial. This is sufficient to support a conviction.

 Defendants also contend that the effect of their acts on interstate commerce is not adequately pleaded in the indictment. Count I of the indictment essentially incorporates the language of the Hobbs Act, charging that Defendants:

 
". . . did conspire to knowingly, wilfully and unlawfully obstruct, delay and affect commerce [and] the movement of articles and commodities in commerce as that term is defined in Section 1951(b)(3), Title 18 U.S.C. by extortion as defined in Section 1951(b)(2), Title 18 U.S.C. in that the defendants aforesaid and the unindicted co-conspirators aforesaid, in their positions as members of the Carbondale Area School Board, Carbondale, Pennsylvania, did conspire to obtain property that was not due to them by wrongful use of fear and under color of official right.
 
The substance of the conspiracy is ...

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