UNITED STATES of America, Appellee, v. Joseph CALDER, Julius Calder, Thomas DiDonato and George Monge, Appellants.
Nos. 353, 382, 476 and 477, Dockets 80-1245, 80-1247, 80-1249 and 80-1281.
United States Court of Appeals, Second Circuit.
Argued Nov. 13, 1980. Decided Feb. 10, 1981.
Rehearing and Rehearing In Banc Denied April 14, 1981.
Certiorari Denied April 20, 1981. See 101 S.Ct. 1984.
The district judge here did make the required “no benefit” ruling. However, the judge further stated that “the court regards the Youth Corrections Act as absolutely no benefit in your case specifically or in any case that this Court will ever have and will never sentence under that Act.”
While we have a decent regard for the independence of the judiciary, we cannot possibly countenance the position of the sentencing judge which, applied uniformly, would effectively nullify an Act of Congress. “A trial court which fashions an inflexible practice in sentencing contradicts the judicially approved policy in favor of ‘individualizing sentences.‘” United States v. Daniels, 446 F.2d 967, 971 (6th Cir. 1971) (quoting Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)). As we have indicated, “statements by a trial judge reflecting a fixed sentencing policy based on the category of crime rather than on the individualized record of the defendant” cannot be approved. United States v. Baker, 487 F.2d 360, 361 (2d Cir. 1973); see United States v. Ingram, 530 F.2d 602, 603 (4th Cir. 1976).
We take no view as to whether or not Zidbeck should have been accorded YCA treatment. However, a sentencing judge who takes the position that no defendant is entitled to whatever benefits such treatment may provide no matter what the circumstances is hardly in a position to make the required exercise of discretion in a particular case. We therefore remand the matter to the District Court of Connecticut for sentencing before another District Court Judge.
Harvey L. Greenburg, New York City, for appellant Julius Calder.
Gerald L. Shargel, New York City (Graham Hughes, New York City, of counsel, on the brief), for appellant Thomas DiDonato.
Barry Bassis, New York City (Legal Aid Society, Federal Defender Services Unit, New York City), for appellant George Monge.
Edward R. Korman, U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Thomas P. Puccio, U. S. Dept. of Justice, Attorney-in-Charge; Kenneth F. McCallion, Joel Cohen, Sp. Attys., Brooklyn, N. Y., of counsel), for appellee U. S.
Before WATERMAN, MANSFIELD and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This case involves the extortion of money from two bars with the descriptive names of “Guys and Dolls” and “Adam and Eve“, located in midtown Manhattan. The proof, which we must view in the light most favorable to the Government, shows that, beginning in September 1978, Joseph Calder, accompanied by George Monge, extorted $300 weekly from each of these bars. There was evidence that the extortion continued for over a year, the take from each bar totalling approximately $15,000.
Eventually, the FBI was called upon for help, and it devised a plan to halt the extortion and to apprehend those responsible for it. The gist of this plan was that FBI agents would pose as members of a rival gang attempting to shake down the same bars. Through this ruse, the Government secured ample, properly-admitted evidence tying Joseph Calder‘s brother Julius and Thomas DiDonato to the extortion scheme.1 On the night of October 31, 1979, all four
Appellants were convicted under the Hobbs Act,
The Government proved that both bars purchased food and other items from firms in New Jersey, and that Adam and Eve, a “juice bar” without a liquor license, purchased de-alcoholized wine from a Canadian company. Extortion‘s effect upon such interstate commerce need only be minimal to give rise to Hobbs Act jurisdiction. United States v. Augello, 451 F.2d 1167 (2d Cir. 1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802 (1972). “Given the sweeping power of Congress under the Commerce clause, ... particularly evident in the Hobbs Act, ... it is enough that the extortion ‘in any way or degree’ ... affects commerce, though its effect be merely potential or subtle.” Id. at 1169-70 (citations omitted). Here, the resources of each bar were depleted by $15,000 in a period of one year. There can be little question that this depletion was sufficiently deleterious to the efficient operation of these establishments to affect, albeit potentially or subtly, their interstate transactions. This was sufficient to sustain Hobbs Act jurisdictions. See United States v. Daley, 564 F.2d 645, 649-50 (2d Cir. 1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1508, 55 L.Ed.2d 530 (1978).
Judge Nickerson instructed the jury that if it found “beyond a reasonable doubt that the goods were purchased for ‘Adam and Eve’ and ‘Guys and Dolls’ in interstate or foreign commerce and that money or property was obtained from them by extortion, then, as a matter of law, interstate or foreign commerce was affected.” The substance of this charge has been approved in this and other circuits on numerous occasions. See, e. g., United States v. Augello, supra, 451 F.2d at 1170; United States v. Cerilli, 603 F.2d 415, 423-24 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980). It was for the court to determine as a matter of law the jurisdictional question of whether the alleged conduct affected interstate commerce; it was for the jury to determine whether the alleged conduct had in fact occurred. See United States v. Ricciardi, 357 F.2d 91, 94 (2d Cir.), cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 540 (1966).
The only other challenge to the verdict which merits comment involves the admission of certain evidence against Julius Calder. Julius Calder spent the day following his arrest in the Metropolitan Correctional Center, where he met a fellow inmate, Joseph Bennett. During a conversation with Bennett, Calder admitted that he had been shaking down a topless bar in Manhattan. Bennett had been indicted for conspiracy to transport stolen motor vehicles in interstate commerce. Although Bennett‘s attorney had discussed with the United States Attorney the possibility that his client might cooperate in the stolen car case, no cooperation agreement was entered into until November 16, 1979, some two weeks after the conversation between Calder and Bennett.
Citing United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), Calder argues that his Fifth and Sixth Amendment rights were violated when the incriminating statement was admitted into evidence. We disagree. The Supreme Court held in Henry that the Government had deliberately elicited a jailhouse admis
Appellant Monge was fined $5,000 on Count One and sentenced as a youth offender to seven years in the custody of the Attorney General. Sentence was suspended on Count Two, and Monge was placed on probation for five years consecutive to Count One. Sentence also was suspended on Count Three, and Monge was placed on probation for three years consecutive to Count Two. Appellant Monge contends that the sentence under Counts Two and Three were improper.
In making this argument, Monge relies upon Ninth and Tenth Circuit holdings, which require sentences imposed on youth offenders under multi-count indictments to be consistent in order not to thwart the rehabilitative intent of the Youth Corrections Act. See United States v. Magdaleno-Aguirre, 590 F.2d 814, 815 (9th Cir. 1979); United States v. Ortiz, 513 F.2d 198 (9th Cir.), cert. denied, 423 U.S. 843, 96 S.Ct. 78, 46 L.Ed.2d 64 (1975); Roddy v. United States, 509 F.2d 1145, 1147 (10th Cir. 1975); Price v. United States, 384 F.2d 650, 652 (10th Cir. 1967). In United States v. Ortiz, the twenty-one year old defendant was sentenced under
The reasoning of the foregoing cases is not without merit. However, it does not apply to our case. Judge Nickerson did not impose sentence under Counts Two and Three. He suspended the imposition of sentence and simply placed the defendant on consecutive terms of probation. This he was permitted to do by the express language of the Act.
Section 5023 provides that nothing in the Act “shall limit or affect the power of any court to suspend the imposition or execution of any sentence and place a youth offender on probation....” It also provides that the Act shall not be construed to repeal or amend the provisions of the general probation chapter, section 3651 of which permits a court to suspend the imposition or execution of sentence and place the defendant on probation. See Durst v. United States, 434 U.S. 542, 543-44, 549-50, 98 S.Ct. 849, 850, 853, 55 L.Ed.2d 14 (1978); United States v. Buechler, 557 F.2d 1002, 1006 (3d Cir. 1977).
Commitment under sections 5010(b) and 5010(c) is “in lieu of the penalty of imprisonment otherwise provided by law.” Durst v. United States, supra, 434 U.S. at 552, 98 S.Ct. at 854. When a court imposes probation and suspends the imposition of sentence, he is not sentencing the defendant to prison. In the strict sense of the word, he is not “sentencing” the defendant at all. See Dunn v. United States, 561 F.2d 259, 261 (D.C.Cir.1977); United States v. Chappell, 480 F.Supp. 321, 324 (W.D.Okl.1978). Assuming, for the argument, that sentences imposed on all counts in a youth offender case must be consistent, it does not necessarily follow that sentence must be imposed on all counts. The imposition of probation may be a proper exercise of the “flexibility [allowed a district judge] in choosing among a variety of treatment settings and programs tailored to individual needs.” Durst v. United States, supra, 434 U.S. at 545, 98 S.Ct. at 851. Like the fines and orders of restitution approved by the Court in Durst, suspension of sentence and probation may,
The judgments are affirmed.
MANSFIELD, Circuit Judge (Concurring in part and dissenting in part):
I concur in all of Judge Van Graafeiland‘s carefully considered and well-reasoned opinion except that portion upholding the district court‘s placement of defendant Monge on probation for periods beyond the seven-year term imposed upon him as a youth offender pursuant to
The district court was clearly authorized by
As Judge Van Graafeiland correctly notes, the imposition of probation under Counts 2 and 3 for terms extending beyond the seven-year sentence imposed on Monge as a youth offender under Count 1 was not strictly a “sentence” of the defendant. However, it clearly placed a “condition” on the discharge of Monge upon expiration of the maximum sentence (seven years) imposed on him as a youth offender under Count 1. The probation terms therefore violated
I would vacate the probation terms imposed on Monge on Counts 2 and 3 and remand the case for sentencing on these two counts. Upon such a remand Monge would face the risk that Judge Nickerson, upon learning that he was powerless to impose probation consecutively to the discharge of Monge as a youth offender, might decide that he was justified under the circumstances in imposing prison terms on these counts exceeding the seven-year period imposed on Count 1. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1968).