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United States v. Delano

United States Court of Appeals for the Second Circuit

November 2, 1994, Argued ; May 16, 1995, Decided

Docket No. 93-1395

Opinion

 [*722]  MESKILL, Circuit Judge:

Appellant Robert Delano appeals from a judgment of conviction of the United States District Court for the Western District of New York, Arcara, J. The jury convicted [**2]  Delano on five counts of a multiple count indictment which principally alleged that Delano used his position as Commissioner of the Buffalo Parks Department to secure both the services of his employees and those of a private company under city contract for his own personal benefit. For the reasons set forth below, we affirm in part and reverse in part.

BACKGROUND

A. The Indictment

On May 6, 1991 a grand jury in the Western District of New York returned a ten count superseding indictment against appellant Robert Delano. The charges stemmed from Delano's conduct while he served as Commissioner of the Parks Department of the City of Buffalo (Parks Department), a position he held from his appointment in 1985 until his resignation in 1990. Essentially, the government maintained that Delano had operated the Parks Department as a racketeering  [*723]  enterprise, routinely extorting his employees and a private city contractor by forcing them to perform work on private homes and businesses, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq.

Count I of the indictment charged that Delano, along with several other unindicted "co-racketeers,"  [**3]  had conducted and participated in the affairs of an enterprise -- the Buffalo Parks Department -- through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c). Count II charged the same individuals with having conspired to conduct and participate in the affairs of the Parks Department through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). As the pattern of racketeering, the indictment detailed seventeen acts of racketeering, all of which alleged either extortion under federal law -- the Hobbs Act, 18 U.S.C. § 1951, or larceny by extortion under New York state law. Each predicate act charged an instance in which Delano had forced either Parks Department employees or a company under city contract to provide services outside the scope of their regular or contractual duties. The indictment additionally realleged the predicate acts involving the extortion of the private city contractor separately as substantive Hobbs Act offenses in Counts IV and V.

Count III of the indictment charged Delano with the theft of public property, in violation of 18 U.S.C. § 666(a)(1)(A). Specifically, that count listed seventeen episodes in which Delano allegedly [**4]  misappropriated public property in his care or custody, namely, the labor of the Parks Department employees. The remainder of the indictment was devoted to two charges of mail fraud stemming from Delano's participation in the illegal sale of chlorine and three alleged violations of the Clean Water Act, see 33 U.S.C. §§ 1311(a), 1319(c)(2), for the illegal dumping of that chemical.

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55 F.3d 720 *; 1995 U.S. App. LEXIS 11626 **

UNITED STATES OF AMERICA, Appellee, v. ROBERT E. DELANO, Defendant-Appellant.

Prior History:  [**1]  Appellant Robert Delano appeals from a judgment of conviction of the United States District Court for the Western District of New York, Arcara, J. The jury convicted Delano of various offenses, including violation of, and conspiracy to violate, the RICO statute, 18 U.S.C. § 1961 et seq.; theft of public property in violation of 18 U.S.C. § 666; and violation of the Hobbs Act, 18 U.S.C. § 1951. We affirm the 18 U.S.C. § 666 and Hobbs Act convictions and reverse the RICO offenses.

CORE TERMS

extortion, larceny, employees, Counts, indictment, racketeering, convictions, Hobbs Act, predicate act, theft, district court, offenses, violations, color of official right, charges, forcing, remove a tree, mail fraud, conversations, conspiracy, witnesses, bribery, pattern of racketeering activity, public property, plain error, overtime, requests, notice

Criminal Law & Procedure, Standards of Review, Plain Error, Definition of Plain Error, General Overview, Theft & Related Offenses, Larceny & Theft, Indictments, Amendments & Variances, Constructive Amendments, Accusatory Instruments, Jury Instructions, Particular Instructions, Elements of Offense, Appeals, Reversible Error, Charging Instruments, Substantial Evidence, Extortion, Hobbs Act, Elements, Racketeering, Trials, Verdicts, Abuse of Discretion, Evidence, Evidence, Relevance, Preservation of Relevant Evidence, Exclusion & Preservation by Prosecutors, Constitutional Law, Fundamental Rights, Criminal Process, Right to Confrontation, Defendant's Rights