There can be little doubt that the evidence brings this case within the literal language of the statute. A "pattern" is defined as two or more acts of racketeering activity, and "racketeering" is defined to include both bribery and mail fraud. The jury was instructed that they must acquit the defendant on the RICO charge unless they concluded that he did receive the $27,500 bribe, and also was guilty of at least one count of mail fraud. It is clear that all of the mailings which gave rise to the mail fraud charges were in connection with the single scheme to obtain the $27,500 bribe. But it is equally clear that each act of mailing constitutes a separate offense, even though related to the same scheme to defraud. If this is so, there would seem to be no obstacle to treating each as a separate act of "racketeering" for purposes of the RICO statute.
While the question is a close one, I have concluded that a single, ongoing scheme to defraud by obtaining bribes or kickbacks, which involves a series of unlawful acts, can establish a "pattern" for purposes of RICO, and that it is not necessary to establish two or more totally independent criminal acts.
III. THE MAIL FRAUD COUNTS
Contrary to the defendant's arguments, I am satisfied that the evidence amply supports the mail fraud convictions. The jury could properly find that the mails were used in carrying out the fraudulent scheme and that the defendant "caused" the mailings. The substitution of Mr. Pirillo as counsel for the Sylk interests was an essential part of the fraudulent scheme. Mailings by which Mr. Pirillo entered his appearance and directed distribution of the settlement proceeds, related directly to the fraudulent scheme. Thus, this case is readily distinguishable from United States v. Tarnopol, 561 F.2d 466 (3d Cir. 1977), relied upon by the defendant. In Tarnopol, the fraud consisted of falsifying the company's books by omitting certain sales, so as to create a "slush fund" with which to bribe disc jockeys. The victims of the scheme were the persons entitled to greater amounts of royalties, the listening public, and the Internal Revenue Service. The Court held that routine mailings of packing slips, in the normal course of business, by employees not connected with the later failure to record some of the sales evidenced by these packing slips, could not be deemed a mailing "for the purpose of executing" the scheme to defraud. All of the mailings in that case were routine and legitimate; moreover, they were totally independent of, and unnecessary to, the fraudulent scheme. In the present case, by contrast, Mr. Pirillo's entry of appearance was not a legitimate act, but was an integral part of the fraudulent scheme.
In U.S. v. Klein, 515 F.2d 751 (3d Cir. 1975), also relied upon by the defendant, the mail fraud conviction was reversed because of the insufficiency of the evidence to establish that the defendant was aware of, or a participant in, the fraudulent scheme. It furnishes no aid to the defendant in this case.
IV. THE HOBBS ACT COUNT
The defendant argues that the evidence was insufficient, as a matter of law, to make out a violation of the Hobbs Act, because Mr. Sylk voluntarily paid the fee to Mr. Pirillo, because Mr. Pirillo may have initiated the arrangement to split the fee with the defendant, without any express request by the defendant to that effect, and because, according to the defendant, the defendant did not exert any influence concerning the amount of the settlement paid to Mr. Sylk. In my view, all of these contentions lack merit.
The jury could reasonably have found that, when the defendant advised Mr. Sylk to change lawyers, and suggested his friend, Mr. Pirillo as a suitable replacement; when Mr. Pirillo was presented as someone with good "connections" with the City administration; when Mr. Sylk agreed to pay Pirillo 20% of the amount of the settlement in excess of $200,000 on the express condition that that would be the total fee, and that Mr. Sylk would not have to make any additional payments to City officials; and when Mr. Sylk was induced to pay a substantial additional sum ($10,000, plus 20% of the interest earned by the escrowed settlement proceeds) for Mr. Pirillo's services in connection with the arbitration proceeding, Mr. Sylk was acting upon the reasonable and well-founded belief that the payments would expedite a favorable outcome, and that unless he agreed to make these payments the officials handling the transaction for the Redevelopment Authority/City interests would carry out their official duties in a manner less likely to produce benefits for Mr. Sylk. It cannot be disputed that, if the defendant had directly told Mr. Sylk that the payment of a kickback would produce a satisfactory settlement, this would have been a "wrongful taking under color of official right" sufficient to make out a violation of the Hobbs Act. U.S. v. Kenny, 462 F.2d 1205 (3d Cir. 1972). In like vein, if the defendant had told Mr. Sylk that payments to other City officials would be necessary, and Mr. Sylk had acted upon that suggestion, the statute would clearly be violated. The only distinction between these hypothetical examples and the present case is that here the communications were more subtle. But the jury was justified in concluding that Mr. Sylk was willing to make a payoff, and believed that he was making a payoff, of one or more public officials in order to gain his ends, and that he was unlikely to succeed in his goal without making such payoff. In these circumstances, it is immaterial that the defendant made no direct demand, or that Mr. Sylk may not have fully appreciated the identity or identities of the person or persons being bribed.
With respect to the question as to whether it was Mr. Pirillo or the defendant who originally mentioned having the defendant share in the fee, the following comments are appropriate: (1) Whether Mr. Pirillo or the defendant first put the matter into words is of little moment, if he was then merely expressing what was in the minds of both from the beginning, and the evidence leaves little doubt about that (Mr. Pirillo seemed to regard it as a foregone conclusion; and the defendant seemed also to take it as a matter of course). (2) Even if the defendant had had no intention of asking for or receiving a share of the Pirillo fee, his acquiescence in that arrangement when Mr. Pirillo first suggested it, and his later acceptance of the fee, would suffice, in the circumstances of this case, to establish a Hobbs Act violation. One cannot create the impression that a kickback would be helpful, and thereafter receive the kickback, and successfully defend against a Hobbs Act charge by arguing that the original impression was erroneous, and the later decision to accept the payoff a mere after-thought. (3) The jury could properly conclude that the only rational explanation for the defendant's actions in placing Mr. Pirillo as Sylk's lawyer (itself a flagrant breach of the defendant's official duties) while concealing his involvement in that transition from his own lawyer and other City officials is that it was part of a preconceived scheme to obtain a kickback.
Finally, it is immaterial whether the defendant did or did not actually help produce a favorable outcome for Mr. Sylk; moreover, it is quite clear that he did. He set the stage for a satisfactory negotiation by injecting Mr. Pirillo into the situation. He greatly enhanced the need for a settlement by executing the Heilweil agreement and, whether alone or in conjunction with Mr. Carroll, he helped drive up the price by disclosing in advance the amount the City might be willing to pay.
I reject as frivolous the assertion that the amount of the settlement payable to Mr. Sylk was determined by the arbitration proceeding, as a separate and independent matter.
In addition to contending that the defendant's conduct did not amount to "extortion" within the requirements of the Hobbs Act, the defendant also argues that the requisite impact upon interstate commerce was not established. Whether measured by the $93,500 paid to Mr. Pirillo, or the $27,500 portion thereof paid to the defendant, or whether viewed from the perspective of the interstate activities of the Redevelopment Authority itself, the evidence established an actual impact upon interstate commerce. See, U.S. v. Mazzei, 521 F.2d 639, 642 (3d Cir. 1975). Moreover, only threatened effect need be shown. U.S. v. Staszcuk, 517 F.2d 53 (7th Cir. 1975).
V. ADMISSIBILITY OF DECLARATIONS OF WILLIAM SYLK
William Sylk, the payor of the kickback, appeared before a Federal Grand Jury and denied under oath that any kickback had been paid, or that the defendant had anything to do with his retention of Mr. Pirillo. He thereafter returned to the Grand Jury, recanted his earlier falsehoods, and testified in conformity with the Government's theory of the case. He was then indicted for perjury, and entered a guilty plea to one count of perjury. He thereafter became ill, and died before the Salvitti trial commenced. This series of events generated some interesting evidentiary problems at the trial.
The Government did not seek to introduce Mr. Sylk's Grand Jury testimony, but was permitted to introduce the testimony of Mr. Sylk's son, Thomas Sylk, as to certain declarations made by William Sylk to him, concerning William Sylk's motives in retaining Mr. Pirillo as his lawyer, and his willingness to pay what he regarded as an unduly generous fee. Essentially, William Sylk explained to his son his desperate need for cash, and his philosophy, "When in Rome, do as the Romans do." I am satisfied that this evidence was properly admitted to establish William Sylk's "state of mind," which was relevant to the Hobbs Act count and to the bribery predicate of the RICO count; and that it was not barred by the hearsay rule. The limitations on the probative force of this evidence were explained to the jury, and it was emphasized that Mr. Sylk's declarations not only could not be considered as evidence of anything except his state of mind at the time, but also that his declarations did not even purport to suggest that the defendant was expected to be a recipient of the kickbacks. It should also be mentioned that the declarations of William Sylk added little, if anything, to the Government's case, in light of the testimony of Thomas Sylk and others who testified from their own observations.
A second set of issues with respect to William Sylk's declarations arose in connection with the defendant's stated desire to impeach William Sylk's credibility. The defendant argues, first, that the evidence, even if normally admissible, should not have been received in view of the fact that the declarant was an admitted perjurer and otherwise an unreliable witness; second, that his unavailability for cross-examination made it impossible adequately to impeach his credibility; and third, that at the very least, the jury should have been made aware of all of the negative factors affecting William Sylk's credibility.
I was not, and am not, persuaded that the out-of-court declarations by William Sylk should have been excluded because of their inherent unreliability. But, notwithstanding the limited of mind" probative force of this evidence, the jury was confronted with the need to assess its credibility. The rulings made in the course of trial on these issues were to the following effect: The jury was instructed at length about the potential unreliability of evidence from a tainted source, and it was noted that, if Mr. Sylk's declarations accurately reflected his state of mind, he, as a participant in a dishonest and fraudulent arrangement, was a tainted source. Defense counsel was advised that he would be permitted, if he so desired, to further impeach William Sylk's credibility by bringing out his perjury conviction, but that if this course were followed, the Government would be permitted to show the relevant circumstances surrounding the perjury conviction (i.e., that the perjury consisted of his earlier denial of involvement in the kickback scheme). Needless to say, the defense elected not to pursue the perjury matter before the jury.
I believe these rulings were fair to both sides, and were correct.
VI. EVIDENCE OF OTHER WRONGDOING
The Government's evidence was to the effect that Alfonso Tumini, Esq., a young lawyer working for Mr. Pirillo, delivered $15,000 in cash in an envelope to the defendant on March 30, 1974, and an additional $12,500 in cash on or about May 6, 1974. The Government was also in possession of evidence that the defendant had earlier solicited, and accepted, a $5,000 cash bribe from two individuals named Ellick and Gerner, in connection with an unrelated zoning matter. Well in advance of trial, the Government furnished counsel for the defendant with copies of the statements of Messrs. Ellick and Gerner, advising him that they might be called as witnesses at trial.
The zoning bribe was allegedly solicited and accepted in April of 1973. At that time, the defendant was a member of the Board of the Parking Authority of the City of Philadelphia, but apparently had not yet become a member of the Board of the Redevelopment Authority, although the record is not crystal clear on that subject.
There was no reference to the Ellick-Gerner zoning transaction in the Government's case in chief. The defendant took the stand in his own defense, in order to deny receipt of the $27,500 cash payments from Mr. Tumini. Defense counsel was obviously anxious to avoid opening the door to evidence concerning the zoning transaction, and therefore attempted carefully to limit his questioning of the defendant, but the defendant could not be restrained:
"Q. Did you ever receive an envelope with money in it at the Redevelopment Authority on or about March 30, 1976, from Mr. Tumini?
"A. I have never received the money with an envelope in it -- rather an envelope with money in it on March 30, '76, '75, '74, '73. I have never received an envelope with money in it at the Redevelopment Authority from anyone, let alone Mr. Tumini.