Petition — Natale v. United States

| s Bupreme Court, U.

a 83 3975

IN THE | MICHAEL ROD/AK, JF

Supreme Court of the United States =

a 75-894

October Term, 1975

JOSEPH NATALE,

Petitioner,

-against

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

RONALD M. KLEINBERG

Counsel for Petitioner

575 Lexington Avenue

New York, N.Y. 10022

incites Lilie” — Mt Ye ml a nn aa a te i de cll ah an Re

Dick Baliey Printers *P.C. Box X, Staten isiand, N.Y. 10302 * Tel. (212) 447-5356

TABLE OF CONTENTS

Page

NTIS soln in c SOhdis Hh Gs weeded s ééu< ced tiao 4

Bais ink as Wks vikce bd ob Cade ds Ke ak en Kh ss 2

Constitutional and Statutory Provisions Involved .......... 2

ee et eek epee caeanees 2

Reasons for Granting the Writ .............0.ceeeeeeees 9

1. The Court of Appeals has Improperly Read 18 U.S.C. 894

by Deleting an Essential Element of the Proof Needed

for Conviction Under this Statute. The Court of Appeals

Eliminated the Need for the Government to Prove that

the Complainant was Placed in Fear of Harm by the

Defendant’s Actions. This Interpretation of the Statute

is in Conflict with Other Circuits Which Require Proof

of the Victims’ State of Mind as an Essential Element of

the Crime. This Question is one of First Impression in

this Court and should be Resolved so that a Potential

Defendant will have fair Warning of the Nature of the

Acts Required for a Conviction under 18 U.S.C. 894... 9

2. The Circuit Court of Appeals Limited the Scope of the

Brady Doctrine 373 U.S. 83 by Refusing to Require that

the Government Produce the Grand Jury Testimony of a

Defense Witness prior to his being Called to Testify on

behalf of the Defendant. That Court Failed to Consider

that such Denial also Deprived the Defendant of his

Sixth Amendment Right to Effective Counsel at Trial... 12

ii

3. This Court has Ruled in the Case of In Re Winship 397

U.S. 358, that the Due Process Clause Protects the

Accused Against Convictions Except upon Proof beyond

a Reasonable Doubt of Every fact Necessary to Con-

stitute the Crime with which he is Charged. The

“‘Winship Rule’’ was Violated in this Case, as well as the

Defendant’s Right to have a Jury Trial when the Trial

Court instructed the Jury that two of the Three Elements

of the Crime were Undisputed. ................0.00: 17

I a a a hs 19

Appendix A—Decision and Opinion of the United States

Court of Appeals for the Second Circuit .............. 23

Appendix B—United States Constitution ................ 43

TABLE OF CASES

Page

Brady v. Maryland, 397 U.S. 742 (1970) .............0.45. 13

Christofil v. United States, 338 U.S. 84 (1949) ............ 18

Gill v. United States, 285 F.2d 711 (Sth Cir 1961) ......... 15

Horning v. District of Columbia, 254 U.S. 135 (1920) ...... 18

In Re Winship, 397 U.S. 358 (1970) ........ cece ee eens 19

Jackson v. United States, 250 F.2d 897 (Sth Cir. 1958) ..... 15

Levin v. Katsenbach, 363 F.2d 287 (D.C. Cir. 1966) ....... 16

th TR TE TNF te me

United States v. Adams, 385 F.2d S48 (2nd Cir. 1967) .....

United States v. Alsop, 479 F.2d 65 (9th Cir. 1973) ........

United States v. Biondo, 483 F.2d 635 (8th Cir. 1973) .....

United States v. Brown, 412 F.2d 381 (8th Cir. 1969) ......

United States v. Curcio, 310 F.Supp. 351 (D.Conn. 1970) ..

United States v. DeCarlo, 458 F.2d 358 (3rd Cir. 1973) ....

United States v. Epps, 438 F.2d 1192 (4th Cir. 1971) ......

United States v. Nakoladski, 481 F .2d 289 (Sth Cir. 1973) ..

United States v. Nixon, 417 U.S. 790 (1974) .......-6.55:

United States v. Tourine, 428 F.2d 865 (2nd 1970) ........

United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967) ..

Wardius v. Oregon, 412 U.S. 470 (1973) .....-- 0 ee ee ee ee

Williams v. Florida, 399 U.S. 78 (1970) .........0- ee eeee

15

2 eee eee --

In THE

Supreme Court of the United States

October Term, 1975

No.

JOSEPH NATALE,

Petitioner,

-against-

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner, Joseph Natale, prays that a writ of certiorari issue

to review the Judgment of the United States Court of Appeals for

the Second Circuit entered on November 28, 1975, which af-

firmed a judgment of the United States District Court for the

Southern District of New York, entered on a Jury verdict con-

victing Petitioner on various counts under the indictment herein.

Opinion Below

The opinion of the Court of Appeals is not yet reported, but is

printed in Appendix A to this Petition. No opinion was rendered

by the District Court.

Jurisdiction

The judgment of the Court of Appeals was entered on

November 28, 1975S. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

Constitutional and Statutory

Provisions Involved

1. The Fifth and Sixth Amendments to the United States

, Constitution.

2. 18 U.S.C. 891; and 18 U.S.C. 894.

Questions Presented

(1) Whether the Court of Appeals was correct in its in-

terpretation of 18 U.S.C. 894 (Collection of Extentions of Credit

by Extortionate Means) by not requiring the Trial Court to

charge the Jury that it is an essential element of that crime for

the Government to prove that the victim was actually placed in

fear of harm by the defendant.

(2) Whether the refusal of the Trial Court to grant the

Defendant's request for the production of the Grand Jury

testimony of its only witness was a violation of both Due Process

of Law under the standards of Procedural Fairness and under

the Brady Doctrine and also a denial of the Defendant's Sixth

Amendment right to have effective representation at trial.

(3) Whether the defendant was denied Due Process of Law

and his right to a Jury Trial when the Trial Court instructed’ the

Jury that two of the three essential elements of the crime were

undisputed.

1. Introduction

The Defendant Natale, along with co-defendants Frank Russo

and John Conti, were tried under a three count indictment which

a

En mes + o.

charged them with a conspiracy to collect extentions of credit by

extortionate means, with the substantive crime of using such

means to collect such extentions, 18 U.S.C. 2 and 894, and with

an attempt to obstruct commerce by extortion, in violation of 18

U.S.C. 1951. The Jury found Natale and Russo guilty on the

extortionate collection counts, but not guilty on the obstructing

commerce count. Defendant Conti was acquitted on all counts.

The Defendants Natale and Russo were sentenced to concurrent

terms of five years imprisonment on each guilty count.

2. Statement of the Case

The Government's proof at trial was based upon testimony of

Peter Amato, a neighbor of the defendant Frank Russo.

In reviewing his background, Amato indicated that he was

employed with the Federal Credit Union in 1973 for a period of

seven months and was soon discharged from that firm because of

his acts of embezzlement. He received a six month suspended

sentence for that crime. Thereafter, he was employed by the firm

of Barbara Creations, a manufacturer of bridal veils, as a

bookkeeper. Amato also embezzled funds from Barbara

Creations, admitting that he stole more than $12,000 from that

firm before the President of Barbara Creations, Murray Weiss,

uncovered his scheme on February 8, 1975.

Amato attempted to borrow money from the Defendant Russo

for alleged investment purposes in March of 1974. Russo in-

troduced Amato to Natale for this purpose. Amato testified that

they (Russo and Natale) gave him $2,000.00 (R127) and then

they (Russo and Natale) told him that it would cost him $75.00 a

week, and that this payment was nothing against the loan. He

was told that the $2,000.00 could be paid back at any time.

In April of 1974, Amato again contacted Russo for another

loan of $500.00. He indicated that the loan was given by Russo,

and was repaid in ten weeks in the amount of $950.00.

In September of 1974, Amato again aporoart.cd Russo and

4

told him that the Barbara Creations company was having cash

flow problems and that if he would be able to loan that company

money, he would be able to solidify his position at Barbara

Creations. (R137).

Pursuant to this request, in November, Amato had a meeting

with Natale, Russo and one Peter Lapin, the accountant and

attorney for Natale. During that meeting, there were discussions

pertaining to the financial conditions of Barbara Creations.

On December 3rd, Amato met Natale and Russo at Russo's

office and was given $10,000.00. Amato indicated that he was

told to repay this loan by payments of $300.00 a week. (R 139).

Amato then indicated that Natale was called out of the room and

Russo told him that it would be a good idea to leave a “token”

for the favor, since no collateral was being asked for to secure the

loan. He then gave Russo $3,000.00 and Russo told him not to

mention the $3,000.00 “token” to Natale. Amato, thereafter,

deposited the $7,000.00 into the Barbara Creations account

(R140).

On January 22 or 23rd of 1975, Amato called Russo and told

him that the Company was overdrawn at the Bank and that he

needed more money. He was given $3,000.00 by Natale and

Russo. He indicated that he was told to repay this loan back four

for three and that the sum of $4,000.00 was to be returned in

three weeks.

At this point in the testimony, Amato first mentions the

transaction which was the basis for the instant indictment and

conviction. On January 31, 1975, he contacted Russo and told

him that the Company was again overdrawn at the Bank. He

testified that he was given $5,000.00 and was told by the

defendants that he would have to repay the sum of $6,500.00 in

one week.

On February Sth, he contacted Russo and told him that he

needed additional time to make the payments and Russo told

him that he would be given until that Friday. On Friday, he

called Russo and told him that he didn't have the money and

didn’t know when he could have it. On February 10th, he told

Russo that he was trying to get the money but he wasn’t having

any luck. In the morning of February 11th while he was leaving

for work, he met Russo and they traveled to work together in

Amato’s car. During that car ride, Amato indicated to Russo

that he didn’t have the money and Russo replied, “Pete you

better stop jerking around. You have got to come up with the

money by 16:00 o’clock because after a while Joey will just waste

you and not worry about the money at ali”. After this con-

versation, Amato decided to report this threat to the police. !

Pursuant to police instructions, Amato went to see Natale and

Russo with a Detective Losito and introduced Losito to Natale

and Russo as a friend by the name of Frank Lucas, who had

been trying to help him raise the money.2

Losito told Natale and Russo that he (Amato) was scared and

that he was with him all day. Losito also said that he hac

dealings with Shylocks before and that he (Amato) was trying to

get the money. Natale then replied, according to Amato, “that

you and ten guys like your friend or Jesus Christ off the cross

couldn't help you if you keep giving me this kind of story about

not paying me back. Then the money won't matter. I will kil!

you" (this conversation is not recorded) (R168).

The next day, Amato called Frank Russo from Barbara

Creations and told Russo that Murray Weiss couldn't get the

money, that he had been trying to raise it but that he did not

have it at that time. Russo asked him how much money Murray's

car was worth. He replied $15,500.00 and Russo said “‘all-right I

1. It was the contention of defense counsel during the trial that the

reason Amato decided to go to the police was to prevent his own arrest for

embezzlement from Barbara Creations and not Uecause of the alleged fear

generated in him by the defendants.

2. Amato was equipped by the Police with recording devices to record

his conversation with Natale and Russo.

:

a a a | . —_ eae " —_ = —_— - ——-—_———

will call you" and then ended the conversation (R170).

He spoke again with Russo later that day and, according to

Amato, Russo inquired if he had obtained the mone_ and wher

Amato replied in the negative, Russo said, “Well, you just tell

him, Muttel, if he doesn’t come up with the money he loses his

car and you lost your house’’. Amato indicated that previously he

had given Russo a deed to his house and some gold coins as

security before he received the $10,000.00 loan (R172).

On February 13th, Amato went to Russo's office and ex-

plained to Natale and Russo that he didn’t have the money.

Natale assured him that there was nothing to worry about and

handed him a yellow sheet of paper. The paper asked for certain

information pertaining to the financial condition of the com-

pany. On February 14th, Amato again called Russo and told

him that he didn’t have any money and didn't know when he

would have it. Russo ended the phone conversation without

giving any answer.

Amato later called back and told Russo that Murray (Weiss)

had returned and had $3,000.00 and the stuff Russo requested

(referring to the financial information of the cor-

poration . . . (R176).

Thereafter, Amato went to Russo’s office and saw Russo,

Natale and the third defendant John Conti. Amato then gave

Russo $3,000.00, which in turn was given to Natale who gave it

to Conti. He also gave Natale the financial information which he

previously requested. Natale indicated that he would give this

information to Peter (Lapin) and he would know what to do with

it (R180).

That night Russo informed Amato that Conti was a “hit

man. . . there to size you up in case Amato hadn't paid.”

February 16th was the christening of Amato’s youngest child

and Russo came to Amato’s house to congratulate him and

spend time with the family (R191). Later in the evening, in

Amato's basement, Russo told Amato that he must have the

balance of the money by the 18th because the 17th was a holiday.

7

On the 17th of February, Amato phonec Russo and told him

that Weiss would like to meet him and discuss some

arrangements concerning how the money was going to be paid

back.

Later that day, Natale and Russo arrived at Barbara Creations

where they met Amato, Weiss and Officer Poltorak, who was

posing as Leon Hauser, Weiss’ partner (R194). At that meeting,

Natale wanted to know what arrangements were going to be

made to pay back the balance of the money. Weiss replied that

“We can make some sort of commitment”. According to

Amato’s testimony, Natale then indicated that he would be

willing to lower the “‘vig’’ by $500.00 and have the rest of the

money paid back in two months. (A reading of the transcript of

this conversation gives a completely different version; whereupon

the mention of “vig’’ is brought up by Weiss and most of the

conversation of Natale pertains to the past conduct of Amato

and the arrangement that could be made for the payment or

renegotiation of the loan.)

Amato further testified that he called Russo that night and

explained to him that Weiss thought it over and decided not to

pay Russo any money.

Amato then indicated that another meeting was arranged at

Barbara Creations. At this meeting, Russo was there with Peter

Lapin; also present were Murray Weiss, Officer Poltorak posing

as Leon Hauser, and Amato. According to Amato, Lapin did

most of the talking and inquired of Weiss if he, Weiss, owed

Amato any money and whether in fact Amato had an interest in

the business. Weiss replied that not only dida’t he have an in-

terest in the business but that Amato was stealing from the

business, and that he was noi responsible for this debt and that

he would not pay it (R199). (The transcript of this conversation

indicated that Weiss did most of the talking and after Weiss told

Lapin about Amato’s conduct, Lapin told Weiss he agreed Weiss

didn’t owe this money.)

Amato testified that during the evening of the 19th of

February, Russo visited him at his house and told him that he

(Amato) had lied and that he was now in trouble and to put him

“in their good eyes is going to cost $5,000.00 extra for lying to

them and stringing them along”. According to Amato, Russo

then said if he didn’t come up with this money that Joey will

come into his house and do a job on his wife and children while

he watched (R202) (this purported conversation was not

recorded).

Even though these purported threats were made, Amato

continued to fraternize with Russo and would drive to work with

him at least three days a week. In fact, on February 16th, Russo

was invited and did in fact attend Amato’s son’s christening. On

that date, he borrowed $100.00 from Russo for the expenses of

his son's christening. Amato also revealed that he helped Russo

in the preparation of his tax returns and that Russo installed

electrical outlets in his house and helped him pane! his basement

without charging him for these services.

Amato testified that he was never physicaliy harmed in any

way by any of the defendants (R228). He also indicated that at

the time he received this money he never had the intention of

paying it back (R203).

9

REASONS FOR GRANTING HE WRIT

1. THE COURT OF APPEALS HAS IMPROPERLY

READ 18 U.S.C. 894 BY DELETING AN ESSENTIAL

ELEMENT OF THE PROOF NEEDED FOR CON-

VICTION UNDER THIS STATUTE. THE COURT

OF APPEALS ELIMINATED THE NEED FOR THE

GOVERNMENT TO PROVE THAT THE COM-

PLAINANT WAS PLACED IN FEAR OF HARM BY

THE DEFENDANT’S ACTIONS. THIS _IN-

TERPRETATION OF THE STATUTE IS IN CON-

FLICT WITH OTHER CIRCUITS WHICH REQUIRE

PROOF OF THE VICTIMS’ STATE OF MIND AS AN

ESSENTIAL ELEMENT OF THIS CRIME. THIS

QUESTION IS ONE OF FIRST IMPRESSION IN

THIS COURT AND SHOULD BE RESOLVED SO

THAT A POTENTIAL DEFENDANT WILL HAVE

FAIR WARNING OF THE NATURE OF THE ACTS

REQUIRED FOR A CONVICTION UNDER 18 U.S.C.

894.

The Circuit Court found that the failure of the Trial Court to

charge that the victim's state of mind was an essential element of

the crime of “Collection of extensions of Credit by extortionate

means’ 18 U.S.C. 894, was not error. This finding was based on

the conclusion that the statute deals only with threats of the

defendant which would reasonably induce fear in an ordinary

person. The Circuit Court held that it is the threat of harm which

is prohibited and that actual fear is not an element of the of-

fense.

In support of this conclusion, three Circuit Court opinions are

cited, United States v. Alsop, 479 F.2d 65 (9th Cir 1973); United

States v. Epps, 438 F.2d 1192 (4th Cir 1971); United States v.

Brown, 412 F.2d 381 (8th Cir 1969). Interestingly enough, all

three cases do not concern themselves with the statute in

question, but rather speak to bank robbery convictions. The

10

cited cases indicate that actual fear need not be proven. It is

submitted that the bank robbery statutes concern themselves

with ‘actual taking’’ and do not relate to the intimidations

needed to convict in contrast with 18 U.S.C. 894. In the bank

robbery statutes, the criminal conduct complained of arises from

the willful conduct of the accused and the fear in the victim is

minimized. However, in enacting Chapter 42 ‘‘Extortionate

Credit Transactions”, Congress incorporated well established

principles of Federal decisional law concerning extortion into the

Act. Thus, the victim’s state of mind is an essential element of

the crime. United States v. Biondo, 483 F.2d 635, 643 (8th Cir.

1973). United States v. Nakoldaski, 481 F.2d 289 (Sth Cir.

1973), United States v. Curcio, 310 F. Supp 351 (D Conn. 1970).

In construing Sec. 18 U.S.C. 894, one must first examine the

definition of the above chapter as expressed in Section 891. Both

sub-divisions (6) and (7) of this section, reflect the intent of the

Congress to incorporate the accepted principles of extortion,

where the conduct both of the defendant and the complainant

are necessary ingredients of the crime.

Under these definitions, it was necessary for the Government

to prove and the Court to charge that the borrower, Amato,

understood the possibility that harmful consequences would be

attendant upon default in his loan payments. Hence, it was

necessary for the Government to prove that the borrowe~ had

such an understanding in that the victim's sta* of mind is an

essential element of the crime. United States v. Biondo, supra.

The narrow construction of this statute by the Circuit Court

also fails to take into account decisions of other Circuits which

spoke to this very issue. For example, in United States v.

DeCarlo, 458 F.2d 358 (3rd Cir. 1973), that Court was called

upon to determine whether a certain letter written by the

deceased, the debtor, was admissible in evidence against the

defendant as a proper exception to the hearsay rule. The Court

admitted the letter and justified such admission to prove the

victim's state of mind. The Court stated ‘‘the victim’s state of

11

mind, even subsequent to the initial treat is relevant in

determining whether Saperstein (the debtor) was in a state of

fear regarding collection of the debt. In footnote 12 of that

opinion, it states:

“It appears that the state of mind of the victim is not

only relevant to the crimes charged in the indictment,

but is an essential element to be proved by the Govern-

ment.”

That opinion also indicates that Section 894(b) makes it clear

that the relevance of the victim’s state of mind is an important

element of that crime. Also.see United States v. Biondo, supra.

The Defendant’s defense relied on the fact that Amato was

never placed in fear, but rather he used the defendant as 2

vehicle to prevent his own arrest by creating an “illusion of

fear’. Therefore, the failure of the Trial Court to properly place

this important issue and element of the crime before the Jury

deprived the defendant of a fair trial.

It is urged that since a basic principle of our criminal law is

that the Government only prosecute people for crimes under

statutes which fairly and clearly define conduct made criminal,

this Court should review and determine whether under 18

U.S.C. 894 the victim’s state of mind is an essential element of

the crime.

12

2. THE CIRCUIT COURT OF APPEALS LIMITED

THE SCOPE OF THE BRADY DOCTRINE 373 U.S.

83 BY REFUSING TO REQUIRE THAT THE

GOVERNMENT PRODUCE THE GRAND JURY

TESTIMONY OF A DEFENSE WITNESS PRIOR TO

HIS BEING CALLED TO TESTIFY ON BEHALF OF

THE DEFENDANT. THAT COURT FAILED TO

CONSIDER THAT SUCH DENIAL ALSO

DEPRIVED THE DEFENDANT OF HIS SIXTH

AMENDMENT RIGHT TO EFFECTIVE COUNSEL

AT TRIAL.

During the second day of this trial, defense counsel requested

from the Court that it be furnished with the Grand Jury

testimony of Lapin in preparation for his testimony as a defense

witness. Lapin had previously testified as a Government witness

before the Grand Jury under a grant of immunity.

The Assistant United States Attorney refused to comply with

this request and indicated that his only obligation would be to

turn over Grand Jury testimony of prosecution witnesses.

Thereafter, the Court ruled that it would deny defense counsel's

request, stating ‘that there is no basis for it whatsoever”.

The Circuit Court of Appeals refused to adhere t. \4e Brady

Doctrine by holding there was no ‘suppression’ in this case

since Lapin was available by subpoena power and appeared and

testified without subpoena, therefore, he was a cooperative

witness and hence there was no information in the possession of

the Government which the defendant would benefit from

knowing. This holding fails to recognize that although Lapin

testified without subpoena, he was not necessarily a cooperative

witness and that in fact part of his testimony was more damaging

than beneficial to the defendant. Lapin, when cross-examined by

the Court and the Prosecutor, testified about usurious loan

3. Prosecutor was probably relying upon 18 U.S.C. 3500 as the basis for

this statement.

13

transactions of the defendant which might ave been refuted by

his testimony in the Grand Jury.4

In our adversary system for determining guilt or innocence, it

is rarely justifiable for the prosecution to have exclusive access to

relevant facts. As was stated in Wardius v. Oregon, 412 U.S.

470, (1973) “exceptions to this are justifiable only by the clearest

and most compelling considerations’’. It is respectfully sub-

mitted that there was no justifiable reason for the Government to

withhold Lapin’s Grand Jury testimony. Yet, the disclosure of

this favorable evidence should have been mandated under the

Brady Doctrine. Also under our adversary system of trial,

counsel must be given every opportunity to present an effective

defense, by both being able to sustain and rehabilitate his own

witnesses. For the Court to curtail this absolute right, was to

deny the defendant's Sixth Amendment right to have effective

representation at trial.

The Supreme Court, in Brady v. Maryland, 397 U.S. 742

(1970), hoped to put an end to the specter of prosecutorial

suppression. The Brady decision stated:

“The suppression by the prosecution of evidence

favorable to an accused upon request violates due

process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith

of the prosecution.”’

In Brady, the Court did not hesitate to indicate that surface

justice should not be tolerated:

‘Society wins not only when the guilty are convicted but

when criminal trials are fair, our system of the ad-

ministration of justice suffers when any accused is tried

unfairly.”’

4. Since Counsel was never shown Lapin’s Grand Jury Testimony, we

can not be as confident as the Court of Appeals in declaring that such

information would be of no benefit to the Defendant.

14

Justice Marshall in his concurring opinion in Moore v. Illinois,

408 U.S. 786, (1971) stated:

‘The prosecutor knew that evidence existed that might

help the defense, that the defense had asked to see it and

that it was never disclosed *** It would be inconceivable

to permit a prosecutor to adduce evidence demon-

strating guilt without also requiring that he bear the

responsibility of producing all known evidence tending

to show innocence.”

Thus, any favorable evidence bearing upon the guilt or in-

nocence of the accused should be provided to defense counsel

upon request. This should have included Lapin’s Grand Jury

testimony.> Assuredly, his testimony tended to be favorable and

in order to properly prepare him as a witness, counsel should

have had access to this favorable Grand Jury testimony. Even if

counsel -had-the opportunity of preparing this witness before

trial, it is conceivable the important matters revealed in the

Grand Jury would have been forgotten by Lapin.

Also, as was evident from his testimony, there is a strong

possibility that this witness did not want to fully cooperate with

defense counsel in preparation “or trial. It must be remembered

that this witness could have been indicted as a co-conspirator

and, in fact, testified under immunity in the Grand Jury.

Conceivably he even violated the defendant’s attorney-client

privilege when he testified in the Grand Jury. He also conferred

with the prosecutor before he testified at trial. Because of these

factors, he would possibly be reluctant to confer as freely with

defense counsel. As a consequence, counsel should have been

allowed to examine the Grand Jury minutes to determine for

himself if there was any favorable information in those minutes

which could be utilized during the trial. If a reasonable doubt

can be created in a jurors mind by the smallest piece of evidence

5. “After an indictment has been founded and the accused

apprehended, the veil of secrecy surrounding Grand Jury proceedings may

be safely lifted when justice so required” United States v. Alper, 156 F.2d

206 (2nd Cir. 1966).

15

or by a single word found in that Grand Jury testimony, it would

have beea sufficient reason to dictate disclosure. Hence, when

guilt or innocence weighs in the balance, the Court and the

prosecutor should not hesitate to disclose this testimony.

Also in presenting his defense, counsel should have been

provided with this testimony for the purpose of rehabilitating the

witness. This is certainly true in this case where this witness had

to withstand vigorous cross-examination of not only the

prosecutor but also the court.

The prosecutor utilized Lapin’s Grand Jury testimony in his

effort to cast suspicion and doubt upon the witness’ veracity.

Certainly equal access to these minutes should have been

provided to defense counsel for the purpose of rehabilitating this

witness in the eyes of the Jury. Yet, without these minutes,

counsel did not have any basis to even lay a foundation for

purposes of rehabilitation. United States v. Youngblood, 379

F.2d 36S (2nd Cir. 1967).

These minutes also should have been provided so as to enable

counsel to properly prepare for his direct examination. For these

minutes could have been used for the purpose of refreshing the

witness’ recollection, and also could have conceivably been

admitted into evidence under the rule of past recollection

recorded. Gill v. United States, 285 F.2d 711 (Sth Cir. 1961):

Jackson v. United States, 250 F.2d 897 (Sth Cir. 1958); United

States v. Adams, 38S F.2d 548 (2nd Cir. 1967). Here, it is ob-

vious that the defense was at the mercy of his adversary, the

prosecutor, who was waiting in the wings armed with this Grand

Jury testimony, waiting to attack upor any showing of in-

consisfencies. Yet, without this Grand Jury testimony, defense

counsel did not have the same advantage. In fact, counsel would

have been precluded from asking pertinent questions of this

witness without his first knowing how the witness testified in the

Grand Jury.

Thus, the Court’s denial of the defendant's request was a clear

denial of procedural due process. It was clearly stated in

Wardius v. Oregon, supra:

“The ends of justice will best be served by a system of

liberai discovery which gives both parties the maximum

amount of information with which to prepare their cases

and thereby reduces the possibility of surprises at trial.

*+*

‘“‘We find ample room in that system as far as due

process is concerned for a rule which is designed to

enhance the search for truth in the criminal trial by

insuring both the defendant and the State ample op-

portunity to investigate certain facts crucial to the

determination of guilt or innocence.”

Also, this Court recently observed in United States v. Nixon,

417 U.S. 790 (1974):

“The very integrity of the judicial system and public

confidence in the system depend on full disclosure of all

the facts, within the framework of the rules of evidence.

To ensure that justice is done, it is imperative to the

function of courts that compulsory process be available

for the production of evidence needed either by the

prosecution or by the defense.”

In conclusion, this Court should reaffirm the saluatory

proposition that a criminal trial is not a game of wits between

opposing counsel, the one with the greatest resources to be the

winner. Levin v. Katsenbach, 363 F.2d 287 (D.C. Cir. 1966). For

the adversary system of trial “is hardly an end in itself; it is not

yet a poker game in which players enjoy an absolute right to

conceal these cards until played"’. Williams v. Florida, 399 U.S.

78, (1970). Therefore it is respectfully urged that this Court rule

that under the circumstances of this case, it was a violation of

law under both the Sth and 6th Amendments of the United

States Constitution, for the District Court to deprive counsel

from reviewing the Grand Jury testimony of its only witness,

before such witness was called to testify on behalf of the

defendant.

17

3. THIS COURT HAS RULED IN T""E CASE OF IN

RE WINSHIP 397 US. 358, THAT THE DUE

PROCESS CLAUSE PROTECTS THE ACCUSED

AGAINST CONVICTIONS EXCEPT UPON PROOF

BEYOND A REASONABLE DOUBT OF EVERY

FACT NECESSARY TO CONSTITUTE THE CRIME

WITH WHICH HE IS CHARGED. THE “WINSHIP

RULE” WAS VIOLATED IN THIS CASE, AS WELL

AS THE DEFENDANT’S RIGHT TO HAVE A JURY

TRIAL WHEN THE TRIAL COURT INSTRUCTED

THE JURY THAT TWO OF THE THREE

ELEMENTS OF THE CRIME WERE UNDISPUTED.

The Trial Court indicated to the Jury that in order to find the

defendants guilty of the crime of collection of extensions of credit

by extortionate means, the Government would have to prove the

following three elements by proof beyond a reasonable doubt:

1. That from or about January, 1975 until March 18, 1975,

Weiss or Amato still owed principal or interest or renewals of

loans which had been made to them.

2. That the defendant actually collected or attempted to

collect all or part of the principal or interest still owed on the

loans by Weiss or Amato.

3. That the defendant knowingly and intentionally used or

participated in any way in the use of any extortionate means to

collect or attempt to collect the loans or to punish Weiss or

Amato for non-payment of the loans. (R591)

The Court then indicated that there appeared to be no dispute

in respect to the first two elements of the crime and that only the

third element of the crime was in sharp dispute. This comment

by the Court invaded the sacred province of the Jury to be the

sole and independent arbiters of the facts and denied the

defendant due process as well as his constitutional right to a Jury

trial (9 Wigmore Evidence #2549, Richardson Evidence [10th Ed

#114], Thayer, Preliminary Treatise on Evidence pp. 183-262.)

18

Once the defendant pleaded not guilty to the crimes charged,

the burden is upon the Government to prove each and every

element of the crime beyond a reasonable doubt. The Court

cannot lessen the burden no matter how conclusive it feels that

the evidence was demonstrated by the Government. For even if it

is assumed that all the evidence is wholly uncontradicted and

that the inferences from the evidence all point in one direction, it

would still be for the Jury to make that determination. If such

were not the case, the Court in essence would be directing a

partial verdict which is never allowed in a criminal trial. A.B.A.

Minimum Standards, Trial by Jury (1968) 4.7(b) Comment.

The Circuit Court of Appeals determined that this comment

by the Trial Judge was not in any sense unfair and that it fell far

short of an actual direction that these facts had been proven

beyond a reasonable doubt. The Appellate Court found comfort

in this Court’s opinion in Horning v. District of Columbia, 254

U.S. 135, 138 (1920) and by the fact that the Jurors were given

the standard or pattern Jury instruction that the Jurors were the

sole Judges of facts and not bound by the comments of the

Judge.

Although this Court ruled in Horning v. District of Columbia,

supra, that similar statements did not deprive the Defendant of a

fair trial, that decision has been overruled subsilento by the In

Re Winship decision. Aiso see Christofil v. United States, 338

U.S. 84 (1949). Additionally, the Horning case is distinguishable

from the ordinary criminal case since there the offense of

operating without a license did not require proof of criminal

intent.©

It is an accepted principle of criminal law, that a charge which

usurps the function of a Jury will not be saved from error by

simply repeating in it from time to time that the Jury and not the

Court is the finder of the facts. United States v. Tourine, 428

F.2d 865, (2d Cir. 1970).

6. The Horning decision has been criticized by Moore in his treatise on

Federal Practice Vol. 8 No. 30.05. Also see the dissent in that opinion by

Justice Brandeis.

19

It is respectfully urged that the compellir g reasons set forth by

this Court in the Jn Re Winship Decision should also prompt this

Court to review this conviction. It is submitted that the Trial

Court improperly invaded the sacred province of the Jury by its

comment that two of the three elements of the crime were un-

disputed. This remark diminished the meaning and import of

the In Re Winship Decision. Thus, it is contended that under the

“In Re Winship’ Rule, a Trial Judge should never instruct a

Jury that elements of the crime are not in dispute when such

facts have not been agreed upon or stipulated by the defense.

CONCLUSION

FOR THE REASONS SET FORTH ABOVE, THIS

PETITION FOR A WRIT OF CERTIORARI

SHOULD BE GRANTED.

Respectfully submitted,

RONALD M. KLEINBERG

Counsel for Petitioner

575 Lexington Avenue

New York, N.Y. 10022

APPENDIX A

Decision and Opinion of the

United States Court of Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 307-08—September Term, 1975

(Argued October 6, 1975 Decided November 28, 1975)

Docket Nos. 75-1276, 75-1298

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH NATALE AND FRANK RUSSO,

Appellants.

Before:

WATERMAN, OAKES and MESKILL,

Circuit Judges.

Appeal from judgments of conviction of conspiracy to use, and

use of, extortionate means, to collect extensions of credit, 18

U.S.C. §§894 and 2, by the United States District Court for the

Southern District of New York, Lloyd F. MacMahon, Judge,

challenging instructions of and interrogation by court;

prosecution’s failure to produce grand jury testimony of, and

examination of, chief defense witness; admissibility of notebook

24

seized at time of arrest; and admissibility of evidence of other

crimes.

Affirmed.

RONALD J. KLEINBERG,

New York, N.Y.

for Appellant Natale

WILLIAM SONENSHINE, EVERSOFF & SONEN-

SHINE, Brooklyn, N.Y., for Appellant Russo.

STEVEN K. FRANKEL, Special Attorney, United

States Department of Justice (Paul J. Curran, United

States Attorney for the Southern District of New York,

John D. Gordan, III, Assistant United States Attorney,

of counsel), for Appellee.

OAKES, Circuit Judge:

This criminal appeal involves a number of trial court rulings

but no question of sufficiency of the evidence of applicability of

the statute. Joseph Natale and Frank Russo appeal from

judgments of conviction entered on May 15, 1975, after a jury

trial in the Southern District of New York before Judge Lloyd F.

MacMahon. They were tried, along with a codefendant, John

Conti, under a three count indictment which charged them with

a conspiracy to collect extensions of credit by extortionate

means, with the substantive crime of using such means to collect

such extensions, 18 U.S.C. §§2 and 894,! and with an attempt to

1. 18 U.S.C. §894(a) provides:

whoever knowingly participates in any way, or conspires to do so, in the use

of any extortionate means

(1) to collect or attempt to collect any extension of credit, or

(2) to punish any person for the non-repayment thereof,

shall be fined not more than $10,000 or imprisoned not more than 20 years, or

both.

obstruct commerce by extortion, in violation of 18 U.S.C.

§1951.2 The jury found appellants Natale and Russo guilty on

the obstructing commerce count. Defendant Conti was acquitted

on all counts. Judge MacMahon sentenced the appellants to

concurrent terms of five years’ imprisonment on each guilty

count. We affirm.

The heart of the crime for which Natale and Russo have been

convicted is the use, or threatened use, of force or violence to a

person, his reputation or his property, as a means of collecting

money lent.See 18 U.S.C. §891[7]. The transactions which

come under the purview of this statute are normally usurious

and. therefore, are unenforceable in courts of law. It is the

effort of usurious money lenders, or “loan sharks.” to seek

extra-legal methods of enforcing their unconscionable

agreements which this statute is designed to restrain.4 And it is

just such efforts which have been proved at trial in this case.

The phrase “extortionate means” is defined to include “any means which

involves the use, or an express or moplicit threat of use, of violence or other

criminal means to cause harm to the person. reputation, or property of any

person.” 18 U.S.C. §891(7).

2. 18 U.S.C. §1951(a) provides:

Whoever in any way or degree obstructs, delays, or affects commerce

or the movement of any article or commodity in commerce, by robbery

or extortion .. . or commits or threatens physical violence to any

person or property in furtherance of a plan or purpose io do anything

in violation of this section shall be fined not more than $10,000 or

imprisoned not more than twent, years or both.

3. Usurious loans are illegal under New York law. N.Y. Penal Law §190.30

(McKinney 1975), and usurious contracts are unenforceable, N.Y. Gen. Obi.

Law §S-SI1 (McKinney 1975)

4. The question of the constitutionality of this federal regulation of intrastate

“loan-sharking” has been previously decided affirmatively by this court in

United States v. Manarite. 434 F 26 1069 (2d Cir. 1970). cert. denied, 2 U.S.

972 (1971). and in United States \ Perez. 426 F 2d 1073 (2d Cir. 1970). aff'd.

Frank Russo had a neighbor, Peter Amato, who, during 1974

and the first part of 1975, worked as the bookkeeper for Barbara

Creations, Inc., a Manhattan manufacturer of bridal veils.

Barbara Creations was having cash flow problems late in 1974

and Amato evidently proposed to its owner. Murray Weiss, that

Amato loan a sum to the corporation to assist it in its financial

straits. Weiss agreed to accept temporary loans from Amato of

$7.000 on December 3, 1974, $3,000 on January 24, 1975, and

$5.000 on January 31, 1975.

Apparently unbeknownst to Weiss, the source of these funds

was not really Amato, but was Joseph Natale and Frank Russo.

Amato had contacted his neighBor Russo, from whom he had

previously borrowed at usurious rates, in November of 1974, and

informed him that if Russo could loan him a substantial sum of

money he would be able to use it to solidify his position at

Barbara Creations. Apparently Amato led Russo to believe that

Amato held an ownership interest in the company. Russo told

Amato to meet with him and Frank Natale in Russo’s office at

1430 Broadway in New York to discuss a possible loan. At their

meeting, Amato provided Natale and Russo and their attorney,

Harris Lapin, with information concerning Barbara Creations

and its officers. On December 3, 1974, Russo and Natale gave

Amato $10,000 in cash, with the understanding that a weekly

payment of $300 interest (‘‘vigorish’’) would be due until the

principal was repaid in full. On the basis that no collateral had

been provided to secure the loan, Russo asked Amato to leave

$3,000 of the amount lent with him, as a “‘token”’ for the favor of

the loan. Amato agreed and deposited the remaining $7,000 in

the Barbara Creations bank account. Three hundred dollars per

week on a net $7,000 loan approximate 222 per cent interest per

annum, even without compounding.

402 U.S. 146 (1971). Perez was affirmed by the Supreme Court on the basis

that Congress's finding that local loan-sharking has a substantially adverse

effect on interstate commerce indicated that the legislation is rationally in

turtherance of Congress's Article | authority over commerce.

On January 22, 1975, Amato again contacted Russo with a

request to borrow funds for Barbara Creations. He told Russo

that the corporation was overdrawn at the bank and needed

money to cover the checks it was writing.» Russo agreed to loan

Amato $3,000, with the understanding that repayment in the

amount of $4,000 was to be made in three weeks. Amato repaid

this loan a few weeks later with money provided by Barbara

Creations’ president, Weiss.

On January 31, 1975, the corporation’s account again became

overdrawn, and Amato, once again flirting with the loan sharks’

jaws, sought a loan of $5,000 from appellants. He met with them

in Russo’s office that day. Amato was given the $5,000, but with

instruction to pay back $6,500 no later than February 6, 1975, It

was the failure to repay this loan, as well as delay in repayment

of a portion of the December, 1974, advance, which led to the

offense charged in this case.

When Amato began to fall behind on his payments, he was

given a series of extensions which culminated in a deadline of

10:00 a.m. on February 11. On the morning of the 11th Russo

met his neighbor Amato as he was leaving his home. He was

friendly enough to tell Amato that he had better come up with

the money by 10:00 a.m. or that Natale “will just waste you, and

not worry about the money at all.’’ Amato decided to report this

threat to the police. An officer was assigned to the case, and the

officer and Amato went to Russo’s office in Manhattan. The

officer posed as a friend of Amato’s who was trying to help him

raise money to repay the loan. While the officer was there, and in

Russo’s presence Natale told Amato that if he kept “giving me

this kind of story about not paying me back . . . then the money

won't matter. I will just kill you.”

5. One factor contributing to Barbara Creations’ chronic cash flow problems

was the extraordinary fact, admitted by Amato, that he was padding the

payroll and taking money out of the corporation's petty cash account. He

extracted approximately $12,000 out of the firm before his activities were

discovered by the president, Weiss, on February 8, 1975, at which time Amato

was fired. Thus we have the rather bizarre spectacle of a fellow borrowing

money at usurious rates to lend it to a corporation from which he was stealing.

The next day, Russo called Amato on the telephone at work

and threatened to take Weiss’ car and Amato’s house if the loan

wasn't repaid immediately. On the 14th, Amato had obtained

$3,000 to repay part of his loan and took it to Russo's office.

When he arrived Natale and John Conti were waiting along with

Russo. Amato paid over the money which was handed by Russo

and Natale to Conti. Later that day, Russo told his neighbor

Amato that Conti was a “hit man . . . there to size you up” in

case Amato hadn't paid.

The final chapter in this saga occurred on February 19, 1975.

Russo and Natale went to the offices at Barbara Creations to

meet with Weiss and Amato. At this meeting, Weiss -informed

the appellants that Amato had no ownership interest im Barbara

Creations, that he had been stealing from the company, that

Weiss was not responsible for any of Amato’s debts and ac-

cordingly would not pay them anything. Apparently this was a

surprise to Russo, for later that day he went to Amato’s home

and told him, “What's it going to be?—you lied and now you are

in trouble and to put you in their good eyes is going to cost you

$5,000 extra for lying to them, stringing them along all this

time.’’ Amato testified that “‘Russo said 10 me if I did mot come

up with this money that Joey will come into my house, do a job

on my wife and children in front of me, while I watched.”

_ For the above series of events, Russo and Natale were con-

victed of the use of extortionate means to collect extemsions of

credit. On this appeal they urge seven separate grounds for

reversal of their conviction.

I. Charge to the Jury on the Elements of the Offemse. The

judge at trial instructed the jury that there are three separate

elements of the §894 substantive offense charged in thhis case.

The Government must prove (1) that there was primcipal or

interest outstanding on the loans, (2) that the defendiants ac-

tually collected or attempted to collect sums due, and (3) that the

defendants employed extortionate means to collect same. Judge

MacManon stated that, as to the first two elements off the of-

tense, ‘1 don't think there is azv dispute in the evidence. . . ©

Appellants claim that this charge amounted to a directed verdict

on those two elements of the offense and that they are entitled,

therefore, to a new trial.

Cases such as United States v. Howard, S06 F.2d 1131 (2d Cir.

1974), and United States v. Fields, 466 F.2d 119 (2d Cir. 1972).

have reestablished that failure to charge each separate element

of an offense may be plain error. Such “errors go directly to a

defendant's right to have the jury told what crimes he is actually

being tried for and what the essential elements of those crimes

are." United States v. Fields, supra, 466 F.2d at 121. Failure to

charge each element of the offense may be reversible error even

where the elements not charged have been wholly uncontested by

the defendant. United States v. Howard, supra, S06 F.2d at

1134. The plea of not guilty places every issue in doubt. and not

even undisputed fact may be removed from the jury’s con-

sideration, either b direction or by omission in the charge. See

United Brotherhood of Carpenters and Joiners of America v.

United States, 330 U.S. 395, 408 (1947); Roe v. United States,

287 F.2d 435, 440 (Sth Cir.), cert. denied, 368 U.S. 824 (1961).

But cf. United States v. Pravato, SOS F.2d 703 (2d Cir. 1974)

(court's inadvertent and erroneous statement that stipulation

covered one element not plain error where all elements charged

and no objection as matter of trial strategy).

In this case, however, the trial judge did charge each element

of the offense. lus indication that he did not “think” there was

any dispute in the evidence as to the first two elements of the

offense fell far short of an actual directicn to the jury that these

essential facts had been proven beyond a reasonable doubt. A

trial judge is permitted to comment upon the evidence if he does

so fairly and makes clear to the jury that all matters of fact are

submitted for their determination. See. e.g.. Horning v. District

of Columbia, 254 U.S. 135, 138 (1920) (Holmes, J.); Gant v.

United States, 506 F.2d 518, 520 (8th Cir. 1974), cert. denied.

420 U.S. 1005 (1975); United States v. Tourine, 428 F.2d 86S,

869 (2d Cir. 1970), cert. denied, 400 U.S. 1020 (1971). When

commenting on the evidence, Judge MacMahon gave the

standard or pattern instructions that the jurors were the sole

judges of facts and not bound by his opinions, informing the jury

that it alone was to decide the weight, effect and value of the

evidence and that the court had no opinions on the evidence.®

See Quercia v. United States, 289 U.S. 466, 469 (1933); United

States v. DeLaMotte, 434 F.2d 289, 292 (2d Cir. 1970), cert.

denied, 401 U.S. 921 (1971). The judge's expressed opinion as to

the absence of dispute over the first two elements of the offense

was not in any sense unfair. The evidence that a debt existed and

that efforts at collection had been made was, in fact, not

disputed by the defense.’ Rather, their position at trial was that

the financial transactions involved here were wholly amicable

and legitimate.® Since the trial court's comment, in its context,

was fair, and since the jury’s role as finder of facts was

repeatedly and accurately explained by the trial court, we find no

error in the challenged instructions. Cf United States v.

Pravato, supra.

6. Additional statements to the same effect were made at least twice more in

the judge's instructions to the jury.

7. It should be noted that Judge MacMahon did not charge that there was

uncontradicted evidence on the elements of the offense which “as a matter of

law” foreclosed jury deliberations on the issues. See United States v. Gollin.

166 F.2d 123, 125 (3d Cir.). cert. denied. 333 U.S. 875 (1948). Rather, the

judge suggested that he did not “think” the evidence adduced by both parties

was “in dispute” as to two of the clements. This ts not tantamount to a

direction that the evidence “not in dispute” proves the elements of the offense

beyond a reasonable doubt.

8. Appellants argue that they had informed Weiss, after their meeting with

him in his office on February 18, 1975S. that he was not legally liable on the

loans they had made Amato. They suggest in their briefs that the jury might

have concluded that this was also their posture toward Amato. But it does not

tollow that because appellants felt Weiss was not obligated on Amato's debt.

they also felt Amato owed them nothing. There is no evidence of a willingness

to torgive the debt. In fact, the evidence of their belief that Amato remained

indebted to them ts not disputed tn the trial record.

More troublesome is appellant Natale’s contention that the

trial court's charge to the jury was inadequate because it failed to

require the jury to find that the threats employed by Russo and

Natale had actually placed Weiss or Amato in fear of harm. The

judge charged the jury that the Government must prove from the

evidence that “an ordinary person would have been put in fear of

immediate bodily harm or future bodily harm from anything

that the defendant said or did to Weiss or Amato... ."’ It is

true that this charge did not require the jury to find that the

persons threatened had actually been placed in fear, but it is the

threat of harm which is prohibited by 18 U.S.C. §894, and

actual fear is not an element of the offense. But see United States

v. Biondo, 483 F.2d 635, 643 (8th Cir. 1973), cert. denied, 415

U.S. 947 (1974) (since “‘victim’s state of mind is an essential

element of the crime charged,”” 18 U.S.C. §1951, hearsay

evidence regarding state of mind admissible). To be convicted,

the defendant must have intended to make a “threat of use, of

violence or other criminal means, to cause harm to the person,

reputation, or property of [another] person.”’ 18 U.S.C. §891(7).

Convictions have been sustained under this statute even where

the person threatened has denied at trial that he was put in fear

by the threat. United States v. DeLutro, 435 F.2d 25S (2d Cir.

1970), cert. denied, 402 U.S. 983 (1971). The approach chosen

by the trial judge, to define the word “threat” in the statute by

reference to the reasonable apprehensions of an “ordinary

person,” gives the statute a proper construction since it focuses

the jury’s attention on the evil being attacked—the defendant's

conduct. Acts or statements constitute a threat under 18 U.S.C.

§891(7) “if they instill fear in the person to whom they are

directed or are reasonably calculated to do so in light of the

surrounding circumstances . . . . “ United States v. Curcio, 310

F. Supp: 351, 357 (D. Conn. 1970) (Timbers, J.) (emphasis

added). It is this “calculated” use of threatening gestures or

words to collect credit extensions which Congress has made

criminal. Actual fear need not be generated, so long as the

defendants intended to take actions which reasonably would

induce fear in an ordinary person.? In other words, it is the

conduct of the defendant, not the victim's individual state of

mind, to which the thrust of the statute is directed. We have no

doubt that Congress meant to protect not only the weak and

timid from extortionate threats, but the strong and intrepid as

well. See United States v. Alsop, 479 F.2d 65, 67 (9h Cir. 1973):

United States v. Epps, 438 F.2d 1192 (4th Cir. 1971). See also

United States v. Brown, 412 F.2d 381, 384 (8th Cir. 1969).

Accordingly, we reject the claim that actual fear is a necessary

element of this offense.!0

Charge to the Jury on Intent and Entrapment. Appellants

argue that the portions of Jidge MacMahon’s charge to the jury

which dealt with criminal intent and entrapment were

prejudicial. The appellants’ first claim is that the judge's

comments on the matter of intent to threaten use of force were

too one-sided and indicated a conviction on the judge's part that

9. We should also observe that the appellants failed to make timely objection

to the instructions pursuant to Fed. R. Civ. P. 30. They cannot, therefore,

object to any mistakes in the charge which are not “plain error.” In light of our

holding that the instructions given were proper, we need not consider this

alternative ground for affirming the judgment. We should note, however, that

at least once in the charge the judge instructed the jury that it must find that

the threats did arouse or were intended to arouse fear in Amato or Weiss. See

note Il infra. Thus, any error in the charge was at least partially moderated in

its total context.

10. Appeilants’ argument on this point under 18 U.S.C. §894 was somewhat

contused. They cited to us the requirement that actual fear be shown to have

existed in convictions under 18 U.S.C. §892 for “making extortionate ex-

tensions of credit.” In prosecutions under that statute, unlike those under

$894. the Government must show a prior “understanding of the creditor and

debtor . . . that delay in making repayment . . . could result in the use of

violence . . . to cause harm to the person, reputation, or property of any

person. ~ 18 U.S.C. §891(6). Since this understanding will exist only where the

Gebtor tears that the threat of force is genuine. the state of mind of the victim

would appear an essential element of that offense to be proved by the

Government. See United States v. DeCarlo, 458 F.2d 358, 367 n. 12 (2d Cir.).

cert. denied. 49 U.S. 843 (1972).

the appellants were guilty. While impartiality is, of course,

required in the judge’s summation, Quercia v. United States.

supra, 289 U.S. at 470, he has discretion to choose which facts

he will mention in his comments, so long as the overall thrust of

the charge is fair to both sides. E.g., United Staies v. Tourine,

supra, 428 F.2d at 869. Judge MacMahon noted that the jury

should consider, in determining whether a conspiracy to use

extortionate means existed, “whether [the persons involved] kept

the usual business records of checks, etc., or whether they deait

in large sums of cash and currency.”’ But these are perfectly

proper comments which do not, on their face, amount to the sort

of repetitious, one-sided summary that unfairly prejudices the

defendants and requires a new trial. This short comment on the

evidence was given in the context of instructions which carefully

protected the jury’s independent right to evaluate the entire case,

and we find that appellants were not prejudiced by it. Compare

United States v. Tramunti, 513 F.2d 1087, 1119-20 (2d Cir.

1975S), cert. denied, 44 U.S.L.W. 3201 (U.S. Oct. 7, 1975), with

Boatright v. United States, 105 F.2d 737, 739 (8th Cir. 1939).11

In the course of instructing the jury, the trial judge informed

them that the defense of entrapment is not available where the

defendants have the intention, readiness and willingness to

commit the crime. The appellants claim that this was a

gratuitous side reference which indicated the judge's belief in

their guilt. In fact, however, a short explanation of that defense,

and its applicability to this case, was made necessary by defense

11. The charge given by Judge MacMahon on the subject of the defendants’

intent to use extortionate means was as follows:

| T]he essential question for you is whether the defendant knowingly

and intentionally aroused or instilled or attempted to arouse or instill a

reasonable fear of bodily harm or economic loss in Weiss or Amato by

creating a menacing atmosphere of intimidation and threats. It ts not

necessary for the victim to become terrified. panic stricken. hysterical

or show the least sign of fright.

The appellants claim that the instruction is insufficient because actual fear

must have been proven as part of this offense. In light of our discussion above.

we cannot accept that view.

7

34

counsel's closing argument which had suggested that Amato had

tried to “entrap” Russo and Natale to protect himself from

embezzling charges. In this situation it was entirely appropriate

for Judge MacMahon to have provided a brief explanation of the

nature of the defense to assure that the jury was not sidetracked

by matters wholly undeveloped in the record and a defense never

really asserted.

Ill. Trial Court's Intervention at Trial. In several instances

the trial judge intervened in the conduct of the trial to ask

questions of various witnesses. We have time and again

cautiored that the judge should be careful to preserve an at-

titude of impartiality and guard against communicating to the

jury any impression that the court is of the opinion that the

defendant is guilty. E.g., United States v. Nazzaro, 472 F.2d 302

(2d Cir. 1973). Our review of the record convinces us that Judge

MacMahon was doing no more than asking such questions as

would serve the ends of justice by assisting the jury in ua

derstanding the evidence. United States v. Cuevas, 510 F.2d

848, 850 (2d Cir. 1975); United States v. Boatner, 478 F.2d 737,

740 (2d Cir.), cert. denied, 414 U.S. 848 (1973); United States v.

Pellegrino, 470 F.2d 1205, 1206.%7 (2d Cir. 1972), cert. denied,

411 U.S. 918 (1973).

The complaint of excessive intervention by the trial judge is

focused on the examination of Harris Lapin, the chief defense

witness and attorney who assisted Russo and Natale at their

February 19, 1975, meeting with Weiss and Amato. !2 Lapin was

being cross-examined regarding Amato's ability to provide

collateral for the loans, when the trial judge asked two questions

about whether Lapin knew what the terms of the loans were to

be. He also asked Lapin whether he knew that the loan

arrangement was usurious,!3 and therefore that any collateral

12. In that meeting Lapin advised Russo and Natale that Weiss and Barbara

Creations were not obliged to repay to the appellants any sums which Amato

had borrowed, even though Amato had lent the money in turn to the cor-

poration.

13. The transaction then being discussed was a loan of $5,000 with

repayment of $6,500 one week later. Even without compounding of interest,

arrangement would be unenforceable. The appellants contend

that this “hostile” line of questioning was intended to ridicule

their witness and to discredit their defense that their relations

with Amato were conducted as normal business transactions. It

is obvious frem the record, however, that the court’s questions

were intended to assist the jury in its evaluation of the nature of

the transactions in this case. This limited interjection by the trial

judge was well within his active responsibility to assure that the

issues were clearly presented to the jury. See United States v.

Brandt, 1% F.2d 653, 65S (2d Cir. 1952). A reading of the

examination of witness Lapin in toto establishes that the claim of

prejudice cannot be sustained; we therefore reject appellants’

claim of error. See United States v. Newman, 481 F.2d 222, 224

(2d Cir. 1973) (per curiam).

IV. Refusal to Produce Grand Jury Testimony of Witness

Lapin. Appellants claim that the trial court erred in refusing to

require the Government to produce the grant jury testimony of

the witness Lapin prior to his being called as a defense witness.

The contention is that this constituted a suppression of ex-

culpatory evidence in violation of the rule of Brady v. Maryland,

373 U.S. 83, 87 (1963) (suppression by prosecution of evidence

favorable to accused upon request violates due process where

evidence is material, irrespective of good or bad faith of

prosecution). The gloss which appellants would have us read

upon Brady is that the prosecution must provide evidence

favorable to the defense which is given by a witness before the

grand jury even though the witness is one who testifies at trial for

the defense.14 This we decline to do.

this indicates an interest rate of over 1500 per cent per year. On redirect Lapin

denied knowing the duration of the gan, but the amount of the interest ap-

parently did not trouble him or raise any questions in his mind, and this is what

the judge's questions concerned.

14. The appellants, of course. have no right to obtain Harris Lapin's grand

jury testimony under the Jencks Act, since Lapin was not a “Government

witness or prospective Government witness... . 18 U.S.C. §3500(a). See

generally United States v. Dioguardi, 428 F .24 1033 (2d Cir.). cert. denied. 400

U.S. 825 (1970). Lapin was called as a witness by, and his testimony was

favorable to. the defense.

“The heart of the holding in Brady is the prosecution's

suppression of evidence’’ favorable to the accused. Moore v.

Illinois, 408 U.S. 786, 794 (1972). The concept of “suppression’’

implies that the Government has information in its possession of

which the defendant lacks knowledge and which the defendant

would benefit from knowing. See Giles v. Maryland, 386 U.S.

66, 96 (1967) (White, J., concurring). Here, as in United States

v. Ruggiero, 472 F.2d 599, 604 (2d Cir.), cert. denied, 412 U.S.

939 (1973), this essential prerequisite to invocation of the Brady

rule is lacking. There was no “suppression” involved in the

Government's turning over Lapin’s grand jury testimony to the

trial court for his decision on the disclosure motion. Nor were the

appellants lacking access to the information which they sought

to obtain from the grand jury minutes. Lapin, who had

represented both of them, was continually available for in-

terviewing, or, had he proved suddenly uncooperative, for

subpoena. !5 In fact, Lapin appears to have cooperated fully

throughout the trial with them. They have failed to advance any

plausible suggestion of prejudice to them from the jury’s ruling,

so that we conclude that there has been no suppression what-

soever of any favorable evidence in this case. See United States v.

Ruggiero, supra, 472 F.2d at 604-05.

V. Examination of Witness Lapin by the Prosecutor. Ap-

pellants claim that the prosecutor improperly discredited the

testimony of witness Lapin by asking, on cross-examination,

whether Lapin recalled ‘‘testifying before a grand jury under

immunity on the 13th of March of this year."’ This is said to have

ineluctably led the jury to the conclusion that the witness's

1S. If a subpoena had been necessary to secure the witness's testimony. and

that testimony had surprisingly been unfavorable, the defense would have been

entitled to examine and use the grand jury transcript to refresh the witness's

recollection or to impeach his testimony. See Dennis v. United States, 384 U.S.

855, 868-70 (1966); United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967).

But here the witness appeared voluntarily and was cooperative with the defense

at trial. On this basis, the appeliants’ claim that the grand jury minutes may

have been usetul for potential impeachment purposes is plainly frivolous.

37

credibility was suspect because grand jury testimony had to be

forced ou: of him over a claim of Fifth Amendment privilege.

Where a2 prosecutor directly asks a defense witness at trial

whether the witness refused to answer questions at the grand jury

proceedings because the answers might have tended to in-

criminate him, courts have found prejudicial error and reversed

the convictions. See, e.g., United States v. Williams, 464 F.2d

927 (8th Cir. 1972); cf. United States v. Glasser, 443 F.2d 994,

1005S (2d Cir.), cert. denied, 404 U.S. 854 (1971). Such direct

efforts to impeach a defense witness are improper under

Grunewald v. United States, 353 U.S. 391 (1957), where the

Supreme Court reversed a conviction because the prosecutor had

improperly cross-examined a defendant as to the assertion of his

Fifth Amendment privilege before a grand jury. The salutary

ruling of Grunewald was based on the view that the question

prejudiced the credibility of the defendant without sufficiently

bearing on the truth of the testimony he had given at trial. /d. at

423-24. Mr. Justice Black’s concurrence in Grunewald took an

even hars!« * stance toward such questioning: “I can think of no

special circumstances that would justify use of a constitutional

privilege to discredit or convict a person who asserts it.’’ Jd. at

42S. This circuit has taken the view that any direct questioning

as to whether a witness had previously invoked his constitutional

right to refuse to testify at a grand jury proceeding constitutes

trial error. However, the error may be harmiless if (1) the wit-

ness’s testimony were remote from the crime charged and (2)

there were no likelihood of confusion in the jury’s mind which

would link the defendants to the witness’s assertion of the

privilege. See United States v. Glasser, supra, 443 F.2d at 1006;

United States v. Sing Kee, 250 F.2d 236, 240-41 (2d Cir. 1957),

cert. denied, 355 U.S. 954 (1958). |

This case differs from Grunewald and its progeny, however,

because here the reference to the constitutional privilege was

neither direct nor clear. This incidental reference to immunity

provided before the grand jury was not itself framed as a

question, but rather was contained in the question being asked.

It was not flagged before the jury as it was in Grunewald and

Williams. It was not even objected to at trial. The prosecutor’s

naughty words were in effect a flyspeck on this record, not a blot.

Furthermore, it is postulating far too great a sophistication on

the part of the jurors to conclude that, from the fact that im-

munity was provided to Lapin before the grand jury, they drew

the inference that he had exercised his Fifth Amendment

privilege to refuse to testify there. The fact that immunity is

provided does not always imply that a Fifth Amendment refusal

to testify has first occurred. For example, under the New York

Criminal Procedure Law §190.40 (McKinney 1967) all witnesses

are granted immunity automatically by reason of their ap-

pearance before the grand jury unless the immunity is

specifically waived. It would be wholly speculative to attribute to

these lay jurors an understanding of the reference to immunity

en passant as anything more than a description of the grand jury

procedure. Here, moreover, the trial judge after only three

questions and answers read by the prosecutor from the grand

jury testimony (bearing on Lapin’s representation of appellants

and acquaintance with Conti) struck the line of inquiry

altogether. Accordingly, we find no error in this questioning and

need not reach the issue whether any putative error was harmless

under United States v. Glasser, supra.

VI. Admission at Trial of a Notebook Seized at Arrest. The

Government introduced into evidence at trial a black notebook

which had been seized at the arrest of the appellants. As the

police entered russo’s office to make the arrest, they found this

notebook lying on the table in front of Russo. The notebook was

in plain view, approximately a foot and a half from where ap-

pellant Natale was standing at the time of the arrest. The book

was lying shut on the desk, but when opened it was seen to be

filled with apparently incriminating records of usurious tran-

sactions, including the ones involved in this case.

There are two objections which have been raised to the ad-

mission of this evidence. The first is that the seizure of the

notebook, though incident to the valid arrest of the appellants,

was in violation of the Fourth Amendment. The validity of such

a search is ta be determined under the criteria of Chimel v.

of the scene incident to arrest to the area that must be searched

to ensure the protection of the officers and the preservation of

easily disposable evidence. We are by no means convinced that

the seizure of the notebook in this case was necessary either to

protect the officers or to preserve the evidence from destruction.

See Coolidge v. New Hampshire, 403 U.S. 443, 472 (1972). But

cf. United States v. Robinson, 414 U.S. 218 (1973) (search of

person incident to arrest valid even as to cigarette package; no

need to protect evidence or arresting officer must be shown). We

realize that some courts have chosen to water down the Chimel

requirements, and have accepted justifications for searches

incident to arrest which fall short of the “emergency” context in

which this exception to the warrant requirement developed. See

United States v. Nevarez-Alcantar, 495 F.2d 678, 682 (10th

Cir.), cert. denied, 419 U.S. 878 (1974) (at arrest for disorderly

conduct, search of locked suitcases valid); Note, The United

States Court of Appeals: 1973-1974 Term Criminal Law and

Procedure, 63 Geo. L.J. 331, 370 (1974). In this case, however,

we need not determine the applicability of Chimel to the cir-

cumstances of this arrest. The reason is that the appellants have

raised this claim that the notebook should be suppressed for

Fourth Amendment violations for the first time at this appeal.

United States v. Mauro, S07 F.2d 802, 805-807 (2d Cir. 1974),

cert. denied, 420 U.S. 991 (1975) (failure to raise suppression

claim prior to trial makes motion to suppress at trial untimely

under Fed. R. Crim. P. 12(b) and 41(f) ).

The appellants did validly raise at trial, and have therefore

preserved for this appeal, a different objection to the admission

of the notebook. The argued that there was nothing in the record

to show that the notebook was the property of either Natale or

Russo, and that absent authentication the document should. be

excluded. See, e.g., McGowan v. Armour, 248 F. 676 (8th Cir.

1918); 7 J. Wigmore, Evidence §2129 (3d ed. 1940); Mc-

40

Cormick’s Handbook on the Law of Evidence §§218-26 (2d ed.

1972). The trial court's rejection of this argument was proper.

Proof of the connection of an exhibit to the defendants may be

made by circumstantial, as well as direct, evidence. The

prosecution need only prove a rational basis from which the jury

may conclude that the exhibit did, in fact, belong to the ap-

pellants. See United States v. Sutton, 426 F.2d 1202, 1207 (D.C.

Cir. 1969) (while ‘‘mere contents” are ordinarily insufficient

evidence of genuineness, contents may be considered in con-

junction with other circumstances); United States v. Montalvo,

271 F.2d 922, 925 (2d Cir. 1959), cert. denied, 361 U.S. 961

(1960). In the words of Rule 901(a) of the new Federal Rules of

Evidence (not yet effective at the time of trial),

[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter

in question is what its proponent claims.

Among the facts which support the finding of authenticity here

are the presence of Natale and Russo at the place where the

notebook was discovered, the fact that the office in which the

arrest occurred and the notebook was seized was the same one in

which Amato had held numerous meetings with Russo and

Natale, Russo’s admission that the office was his, and an entry in

the notebook which referred to the $5,000 Joan for $6,500 made

to Amato. See United States v. Sutton, supra, 426 F.2d at 1207-

08; 7J. Wigmore, supra + '2/'%— (authentication by contents).

These same facts also reveal the probative value of the exhibit as

a record of the transactions testified to by Amato between Amato

and the appellants.!© Thus we hold that the document was

sufficiently authenticated, was of significant probative value,

and was therefore properly admitted into evidence by the trial

court.

16. The entries in the notebook were. of course, evidence that an outstanding

debt remained to be paid by Amato. The validity of this evidence was not

disputed by the appellants, a fact which undercuts their argument in Part I of

this opinion, supru. See especially text at notes 7-8 supra.

41

VII. Use of “Other Crimes’ Evidence and Instructions

Thereon. The appellants contend that it was improper to allow

into evidence certain testimony and documentary proof which

tended to show that Natale and Russo had been engaged in

several usurious transactions both before and during the period

of the conspiracy here charged. The appellants were not, of

course, charged with usury at this trial. Therefore, evidence of

their usurious transactions should not have been admitted if it

were introduced solely to show that the defendants had criminal

characters. United States v. Papadakis, 510 F.2d 287, 294 (2d

Cir.), cert. denied, 421 U.S. 950 (1975). But if this proof of

“other crimes” was used at trial for any valid purpose other than

to show the appellants’ criminal character, then it should have

been admitted so long as its probative value outweighs its

potential prejudice. United States v. Torres, 519 F.2d 723, 727

(2d Cir. 1975); United States v. Papadakis, supra. The

Government contends that this evidence was admissible to show

the “background and development’’ of the conspiracy to use

extortionate means to collect credit extensions. See United

States v. Torres, supra; United States v. Colasurdo, 453 F.2d

S85, 591 & n.3 (2d Cir. 1971), cert. denied, 406 U.S. 917 (1972).

We agree that this evidence helps to establish that Natale and

Russo had continuing debtor-creditor relations with Amato and

others, relations of a type which could not be enforced legally, 17

and therefore might well have been grounded in extra-legal

methods of enforcement. Thus we have no trouble in concluding

that the evidence of usurious behavior was relevant to the proc f

of a conspiracy to employ extortionate means to collect on such

loans. Admission of this evidence was well within the discretion

of the trial court.

Appellants’ final contention is that the failure of the trial court

to give cautionary instructions to the jury as to the limited use of

the “other crimes’ evidence was reversible error. However, the

appellants’ counsel failed to request such a limiting instruction

17. See note 3 supra.

either at trial or at the close of the case in the charge to the jury.

Failure to have asserted this claimed right below precludes

review here. See United States v. Papadakis, supra, 510 F.2d at

295; United States v. Bozza, 36S F.2d 206, 214 (wd Cir. 1966).

Having considered and rejected all of the appellants’

arguments, we affirm the judgment below.

Judgment affirmed.

43

APPENDIX B

United States Constitution

Fifth Amendment

Amendment V

“No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.”

Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.”

UNITED STATES CODE 18 U.S.C. 891

CRIMES AND CRIMINAL PROCEDURE

CHAPTER 42. EXTORTIONATE CREDIT TRANSACTIONS

Sec. 891. Definitions and rules of construction.

892. Making extortionate extensions of credit.

44

893. Financing extortionate extensions of credit.

894. Collection of extensions of credit by extortionate means.

896. Effect on State laws.

1970 Amendment. Pub. L. 91-452, Title Il, Section 223(b),

Oct. 15, 1970, 84 Stat. 929, struck out item 895 “Immunity of

witnesses”.

§891. Definitions and rules of construction

For the purposes of this chapter:

(1) To extend credit means to make or renew any loan, or to

enter into any agreement, tacit or express, wheteby the

repayment or satisfaction of any debt or claim, whether

acknowledged or disputed, valid or invalid, and however arising,

may or will be deferred.

(2) The term “creditor”, with reference to any given extension

of credit, refers to any person making that extension of credit, or

to any person claiming by, under, or through any person making

that extension of credit.

(3) The term “debtor”, with reference to any given extension

of credit, refers to any person to whom that extension of credit is

made, or to any person who guarantees the repayment of that

extension of credit, or in any manner undertakes to indemnify

the creditor against loss resulting from the failure of any person

to whom that extension of credit is made to repay the same.

(4) The repayment of any extension of credit includes the

repayment, satisfaction, or discharge in whole or in part of any

debt or claim, acknowledged or disputed, valid or invalid,

resulting from or in connection with that extension of credit.

(S) To collect an extension of credit means to induce in any

way any person to make repayment thereof.

(6) An extortionate extension of credit is any extension of

credit with respect to which it is the understanding of the

creditor and the debtor at the time it is made that delay in

45

making repayment or failure to make repayment could result in

the use of violence or other criminal means to cause harm to the

person, reputation, or property of any person.

(7) An extortionate means is any means which involves the

use, Or an express or implicit threat of use, of violence or other

criminal means to cause harm to the person, reputation, or

property of any person.

(8) The term “State’’ includes the District of Columbia, the

Commonwealth of Puerto Rico, and territories and possessions

of the United States.

(9) State law, including conflict of laws rules, governing the

enforceability through civil judicial processes of repayment of

any extension of credit or the performance of any promise given

in consideration thereof shall be judicially noticed. This

paragraph does not impair any authority which any court would

otherwise have to take judicial notice of any matter of State law.

Added Pub. L. 90-321, Title II, §202(a), May 29, 1968, 82

Stat. 159.

18 U.S.C. 894

Section 894. Collection of extensions of credit by extortionate

means

(a) Whoever knowingly participates in any way, or conspires to

do so, in the use of any extortionate means

(1) to collect or attempt to collect any extension of

credit, or

(2) to punish any person for the nonrepayment

thereof,

shall be fined not more than $10,000 or imprisoned no more

than 20 years, or both.

(b) In any prosecution under this section, for the purpose of

showing an implicit threat as a means of collection, evidence

may be introduced tending to show that one or more extensions

«a

of credit by the creditor were, to the knowledge of the person

against whom the implicit threat was alleged to have been made,

collected or attempted to be collected by extortionate means or

that the nonrepayment thereof was punished by extortionate

means.

(c) In any prosecution understhis section, if evidence has been

introduced tending to show the existence, at the time the ex-

tension of credit in question was made, of the circumstances

described in section 892(b) (1) or the circumstances described in

section 892(b) (2) and direct evidence of the actual belief of the

debtor as to the creditor's collection practices is not available,

then for the purpose of showing that words or other means of

communication, shown to have been employed as a means of

collection. in fact carried an express or implicit threat, the court

may in its discretion allow evidence to be introduced tending to

show the reputation of the defendant in any community of which

the person against whom the alleged threat was maGe was a

member at the time of the collection or attempt at collection.

Added Pub. L. 90-321, Title II, §202(a), May 29, 1968, 82

Stat. 161.