# Petition — Natale v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 950

## Text

| 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1484%3A1. Public record. Not legal advice.