Petition — Mancini v. United States

Supreme Court, U. 8.

-m FILED

APR 28 1077

: N. CLERK

INTHE .

Supreme Court of the United States

OCTOBER TERM, 1976

no. %6°1496

CHARLES CARMEN MANCINI,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THEODORE 8. WOROZE

Attorney for Petitione

2410 Peachtree Cain Tower

229 Peachtree Street, N“

Atlanta, Georgia *“

404-659-7070

SCOFIELDS’ QUALITY PRINTERS. P. o. BOX 63096. N. Oo. LA. 70163 - 604/822-1611

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

CHARLES CARMEN MANCINI,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Fifth Circuit entered on January 26,

1977, and a Motion for Rehearing and Rehearing En

Banc denied on March 29, 1977.

CITATIONS TO OPINIONS BELOW

The Opinion of the Court of Appeals is reproduced

and attached to this Brief as “Appendix A.”

2

JURISDICTION .

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1254.

QUESTION PRESENTED

Where this Court upheld the constitutionality of

Section 891, et seq., Title 18 U.S.C.A. (the so-called

“Loan Shark Act”), in Perez v. United States, 402 U.S.

146, on the finding that “loan sharks” are members of a

“class which engages in extortionate credit transac-

tions as defined by Congress and the description of

that class has the required definiteness”, and further,

that Congress made a reasonable finding that “loan

sharking” affects interstate commerce; may the lower

courts extend such holding to encompass the collec-

tion of a gambling debt where the defendant is not a

member of a class which engages in “extortionate

credit transactions” as defined by Congress, and

where further, Congress made no reasonable finding

that gambling, per se, affects interstate commerce?

STATUTES INVOLVED

The following statutes are involved:

U.S. C. A. Title 18:

Section 891. Definitions and rules of oon -

struction.

J

we

(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 mak-

ing 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 im-

plicit threat of use, of violence or other crim-

inal means to cause harm to the person,

reputation, or property of any person.

Section 892. Making extortionate exten-

sions of credit.

(a) Whoever makes any extortionate ex-

tension of credit, or conspires to do so, shall be

fined not more than $10,000 or imprisoned not

more than 20 years, or both.

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 non-

repayment thereof, ä

4

shall be fined not more than $10,000 or im-

prisoned not more than 20 years, or both.

STATEMENT OF THE CASE

Mancini was a gambler who was convicted for using

extortionate means to collect a gambling debt, in two

counts (conspiracy and substantive) in violation of

Section 894, Title 18, U.S.C.A.

REASONS FOR GRANTING THE WRIT

I.

The Fifth Circuit in the Subject Case Has

Decided an Important Question of Federal

Law Which Has Not Been, But Should Be, Set-

tled by This Court.

This Court decided in Perez v. United States, 402 U.S.

146, 28 L.Ed.2d 686, 91 S.Ct. 1357, that Title 18, Section

891 (the so-called “Loan Shark Act”) was constitu-

tional as applied since Perez, a “loan shark”, was

clearly “a member of the class which engages in extor-

tionate credit transactions as defined by Congress and

the description of that class has the required definite-

ness”, Perez, at U.S. 153, L.Ed.2d 691.

This Court has not embraced the issue as to whether

or not the application of the “Loan Shark Act” is con-

stitutional when applied to transactions involving the

use of extortionate means to collect an extension of

credit, regardless of the nature of such credit exten-

sion. .

II.

The Fifth Circuit Has Decided a Federal Ques-

tion in a Way in Conflict with The Applicable

Decision of this Court.

This Court, in Perez v. United States, 402 U.S. 146,

upheld the constitutionality of Sections 891, et seq., Ti-

tle 18, U.S. C. A., because the Court found that Perez, a

“loan shark’, was clearly “a member of the class

which engages in extortionate credit transactions as

defined by Congress and the description of that class

has the required definiteness Perez, at U.S. 153. Man-

cini, the Petitioner, a gambler who used extortionate

means to collect a gambling debt, is not a member of a

class which engages in extortionate credit transac-

tions as defined by Congress. This may be seen by the

express definition of an extortionate extension of

credit, Section 891(6), Title 18, U.S.C.A.

Mancini was convicted for Section 894, the constitu-

tionality of which was not analyzed by this Court in

Perez v. United States, 402 U.S. 146.

The Perez Court determined that Congress had made

a reasonable finding that loan sharking” affected

interstate commerce. The courts now seek to extend

such finding into the area of gambling, per se, as

affecting interstate commerce. That gambling, per se,

does not affect interstate commerce in contemplation

of Federal legislation is clear from the enactment of

Section 1955, Title 18, U.S.C.A. That is, said Section

shows that gambling must necessarily reach certain

substantial proportions as a condition precedent to a

finding that it affects interstate commerce.

It is certainly not necessary to incorporate Section

894, Title 18, U.S.C.A., into the “Loan Shark Act” in or-

der to prevent the evils of “loan sharking”’. Mancini

concedes that if it were necessary to incorporate Sec-

tion 894 in the “Loan Shark Act” in order to prevent

“loan sharking', then his cause would be without

merit. (See Westfall v. United States, 274 U.S. 256, 259.)

There being no finding by Congress that the collec-

tion of debts by extortionate means affects interstate

commerce and people who use extortionate means to

collect debts not being members of a class which

engage in “extortionate credit transactions” as de-

fined by Congress (Section 891, Paragraph 6, Title 18,

U.S. C. A.). Section 894, Title 18, U.S. C. A. is, per se,

unconstitutional.

CONCLUSION

Congress and the courts, on the basis of this Court's

holding in Perez v. United States, 402 U.S. 146, that

“loan sharking” affects interstate commerce, have ex-

tended the ambit of the “Loan Shark Act” imper-

missibly. To suggest that it is necessary, in order to

prevent the evils of loan sharking”, to classify as a

Federal crime the extortionate collecting of any exten-

sion of credit is stretching the limited contours of

rationality beyond recognition. The alarming trend of

ever-increasing Federal jurisdiction in the area of law

enforcement need not be nourished by extensions ab-

sent constitutional bases.

Respectfully submitted,

THEODORE S. WOROZBYT

Attorney for Petitioner

7

2410 Peachtree Cain Tower

229 Peachtree Street, N.E.

Atlanta, Georgia 30303

404-659-7070

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of

the within and foregoing Petition for Writ of Certiorari

on Mr. Ivan Michael Schaeffer, Attorney, Appellate

Section, Criminal Division, United States Department

of Justice, P. O. Box 899, Washington, D.C. 20530, by

depositing same in the United States mail in an

envelope properly stamped and sealed.

This the — day of April, 1977.

THEODORE S. WOROZBYT

Attorney for Petitioner

—

ca

APPENDIX “A”

UNITED STATES of America,

Plaintiff-Appellee,

V.

Ronald Edison ROBERTS, a/k/a a Ron

Roberts,“ and Charles Carmen

Mancini, Defendants-Appellants.

No. 76-1076.

United States Court of Appeals,

Fifth Circuit.

Jan. 26, 1977.

Appeals from the United States District Court for

the Northern District of Georgia.

Before AINSWORTH and RONEY, Circuit Judges,

and ALLGOOD,* District Judge.

AINSWORTH, Circuit Judge:

Appellants Roberts and Mancini were convicted on

both counts of a two-count indictment, charging them

with conspiracy to collect an extension of credit by xge

of extortionate means, and with use of extortionate

means to collect an extension of credit, in violation of

18 U.S.C. §§ 2, 894! The charges grew out of an attempt

by Mancini, a bookmaker, and his codefendant,

Roberts, to collect on a gambling debt owed Mancini

by one David Madison. Appellants raise three issues

on appeal.

* Chief Judge for the Northern District of Alabama, sitting by

designation.

2a

First, Roberts alleges error in the findings and con-

clusions of two federal magistrates, adopted by the

trial court herein, with respect to the jury-selection

process in the Northern District of Georgia, under

which the members of his petit jury panel were

selected. Roberts challenges the process as being

violative of the Jury Gelection and Service Act of 1968,

28 U.S.C. § 1861 et seq., and the local jury-selection

plan. The same issue is raised in United States v.

Davis, 5 Cir., slip opinion 75-3747, page 1054. F. ad

. which we also decide today. We incorporate

herein the holding of that opinion as to jury selection

and, accordingly, reject appellant’s argument. Se-

cond, appellant Mancini challenges his conviction on

the ground that 18 U.S. C. § 894, pertaining to the

collection of extensions of credit by extortionate

means, was not directed to the collection of gambling

debts. Third, Roberts objects to the trial court’s in-

struction to the jury on the issue of specific intent.

The extortionate-credit victim, Madison, was

employed by a supermarket chain in Atlanta, Georgia.

He met Mancini in September 1974 and acquired a bet-

ting number from an associate of Mancini's.

Thereafter, Madison began placing bets on sports

events, and would meet Mancini on a weekly basis to

settle up their account. Madison became indebted to

Mancini for the week ending February 15, 1975, after

which time he quit betting. According to Madison, the

amount owed was $420, while Mancini testified that

the amount was $4,020. Madison did not pay Mancini

the following week, as had been their custom, and, in

fact, the debt remained unpaid for several weeks.

Madison testified that Mancini spoke to him about

payment of the debt and, when Madison said that he did

3a

not have the money and would require more time to

pay it, Mancini said that he was going to turn the debt

over to someone else. Shortly thereafter, Roberts con-

tacted Madison. Madison testified that Roberts spoke

to him on a number of occasions, both in person and on

the telephone, and that Roberts threatened him with

physical violence if he did not pay the debt. At trial,

there was also a tape recording of a telephone conver-

sation introduced into evidence in which Roberts

threatened Madison with harm to his person, his

wife’s person and his reputation. Furthermore,

Madison testified, Roberts informed him that the debt

was going up $200 a day, and later told him that the

debt had gone up to $4,020. Mancini testified that he did

not threaten Madison and that he (Mancini), assuming

Madison might respond more positively toa stranger,

employed Roberts to try to collect the debt. Roberts

was to collect a 25% commission on the amount he

collected. Mancini further testified that he did not

agree with Roberts that threats would be used in

attempting to collect the debt. Roberts admitted mak-

ing the telephone call, but denied that he intended to

threaten or to harm anyone. He attributed his remarks

to drinking, which he said exacerbated his diabetic

condition, thus making him high.

The statute penalizes conspiracy or knowing par-

ticipation “in any way ... in the use of any extor-

tionate means... to collect or attempt to collect any

extension of credit.” 18 U.S.C. § 894(a)(1) (emphasis

added.) The chapter on extortionate credit transac-

tions further provides:

(1) To extend credit means to make or

renew any loan, or to enter into any agree-

ment, tacit or express, whereby the repayment

4a

or satisfaction of any debt or claim, whether

acknowledged or disputed, valid or invalid,

and however arising, may or will be deferred.

* * „ *

(7) An extortionate means is any means

which involves the use, or an express or im-

plicit threat of use, of violence or other

criminal means to cause harm to the person,

reputation, or property of any person.

Id. § 891 (emphasis added).

The broad statutory language plainly encompasses

a debt arising out of a gambling transaction. United

States v. Andrino, 9 Cir., 1974, 501 F.2d 1373; United

States v. Briola, 10 Cir., 1972, 465 F.2d 1018, cert.

denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 688 (1973);

United States v. Keresty, 3 Cir., 1972, 465 F.2d 36, cert.

denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258. In fact,

the enactment has been applied specifically to a debt

emanating from a bookmaking operation. See Briola,

supra. The legislative history of the statute, further-

more, shows a congressional intent to include gam-

bling within the statutory proscription. See H.R.Rep.

No. 1397, 90th Cong., 2d Sess. 31 (Conference Report),

reprinted in [1968] U.S.Code Cong. & Ad.News, pp.

2021, 2029. Appellant argues that the statute reaches

only loansharking activity. The cases offered in sup-

port of that proposition! all involved loansharking

1 United States v. DeCarlo, 3 Cir., 1972, 458 F. ad 358, cert. denied,

409 U.S. 843, 93 S. Ct. 112, 34 L. Ed. ad 83; United States v. Fiore, 1 Cir.,

1970, 434 F. ad 966, cert. denied, 402 U.S. 973, 91 8. Ct. 1659, 29 L. Ed. ad

137 (1971); United States v. DeStafano, 2 Cir., 1970, 429 F. 2d 344, cert.

denied, 402 U.S. 972, 91 8.Ct. 1656, 29 L.Ed.2d 136 (1971); United

States v. Biancofiori, 7 Cir., 1970, 422 F. ad 584, cert. denied, 398 U.S.

942, 90 S.Ct. 1857, 26 L.Ed.2d 277.

and, therefore, referred to such activity; however,

there is nothing in those cases which suggests that

Congress’ concern was exclusively with loanshark-

ing. In Perez v. United States, 402 U.S. 146, 91 S.Ct.

1357, 28 L.Ed.2d 686 (1971), upon which Mancini also

relies, the Supreme Court held that Congress could

regulate “extortionate credit transactions” as a class

of activities.” 402 U.S. at 153-54, 91 S.Ct. at 1361. The

reasoning of Perez and its progeny, e.g., Andrino,

supra; United States v. Annerino, 7 Cir., 1974, 495 F.2d

1159; Keretsy, supra, makes clear that the instant

transaction is within the covered class; the con-

stitutionality of the statute as so applied has been es-

tablished since Perez.

Roberts contends that the district court’s instruction

to the jury on specific intent improperly shifted to the

defendant the burden of proof as to this issue. Roberts

concedes that he made a threatening phone call to

Madison which was monitored by the FBI and played

at trial. His sole defense is lack of the requisite intent.

The disputed charge instructed the jury as follows:

Int is reasonable to infer that a person or-

dinarily intends the natural and probable con-

sequences of facts [sic] knowingly done or

knowingly omitted, and so unless the contrary

appears from the evidence, you, the jury, may

draw the inference that the accused and each of

them intended all the consequences which one

standing in like circumstances and possess-

ing like knowledge should reasonably have

expected to result from any act knowingly

done or knowingly omitted.

6a

Appellant relies principally on Mann v. United States,

5 Cir., 1963, 319 F.2d 404, cert. denied, 375 U.S. 986, 84

S.Ct. 520, 11 L.Ed.2d 474 (1964), a case in which this

court held the giving of the same charge as the one

here at issue to be erroneous where the “overall effect“

therein was “to place a burden upon the defendant to

produce evidence to overcome a presumption of

guilt.” Id., 319 F.2d at 410. Mann offers no solace to

Roberts, however, in light of United States v. Duke, 5

Cir., 1976, 527 F.2d 386, cert. denied. U.S., 96

S.Ct. 3177, 50 L.Ed.2d 1190 (1976), a case in which we

held last year that the giving of the Mann charge in a

context similar to that today before us did not con-

stitute reversible error. A “jury charge is to be read

and tested as a whole, and not by a single isolated

sentence.“ Id., 527 F. ad at 392; United States v. Wilkin-

son, 5 Cir., 1972, 460 F.2d 725, 732. The trial judge in-

serted in his charge several statements® that placed

the burden of proof on the Government and that we

have held to be factors weighing against reversal of a

conviction on the basis of the Mann charge. Duke,

supra, 527 F.2d at 392-93. Finally, considering, as we

must, the type of case and nature of the evidence, id. at

393; Wilkinson, supra, 460 F. ad at 733, particularly the

undisputed threatening phone call made by Roberts,

2 The other cases relied upon by appellant, United States v.

Durham, 5 Cir., 1975, 512 F. ad 1281, cert. denied, 423 U.S. 871, 96 S. Ct.

137, 46 L.Ed.2d 102; United States v. Jenkins, 5 Cir., 1971, 442 F.2d

429; Helms v. United States, 5 Cir., 1964, 340 F. ad 15, cert. denied, 382

U.S. 814, 86 S. Ct. 33, 15 L.Ed.2d 62 (1965), illustrate the erosion,

rather than the reinforcement, of the Mann rule.

3 For example, instructions that the law presumes a criminal

defendant to be innocent of crime; that the presumption of in-

nocence alone is sufficient to acquit a defendant unless the jury is

satisfied beyond a reasonable doubt of defendant's guilt; that the

burden is always upon the Government to guilt beyond a

reasonable doubt; and that the burden never to a defendant to

produce any witnesses or any evidence.

7a

“the jurors were not reduced solely to presuming in-

tent as they were in Mann.” Wilkinson, supra, 460 F. 2d

at 733. The giving of the challenged charge did not con-

stitute reversible error in the instant case.

AFFIRMED.