Appendix — Charbonier v. United States

A-1

4691

UNITED STATES of America, Plaintiff-Appellee,

v.

James BURKE, Louis Lopez and Henry Hill,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Raul CHARBONIER and Luis Charbonier,

Defendants-Appellants.

Nos. 72-3742, 73-1045.

United States Court of Appeals,

Fifth Circuit.

June 12, 1974.

Defendants were convicted before the United States Dis-

trict Court for the Middle District of Florida, Ben Krentzman,

J., of making extortionate extensions of credit, using extor-

tionate means of collecting debts, interstate travel in further-

ance of extortion, interstate travel for promotion of an illegal

gambling enterprise, and use of interstate telephone facilities

in an unlawful gambling enterprise, and they appealed. The

Court of Appeals, Gee, Circuit Judge, held that evidence was

sufficient to support convictions; that victims’ testimony

about the operation of a gambling scheme constituted “verbal

acts” rather than hearsay and were admissible; that defend-

ants were not prejudicially misled by preliminary statement

that the conspiracy rules of evidence were not applicable or by

the failure of the prosecution to define the scope and purpose

of any conspiracy or joint venture in crime; that trial court

did not abuse its discretion by allowing prosecutor to “work

with” witness over weekend in order to discuss upcoming

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1974, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi- Cee ees

cation constitute no part of the opinion of the court. INDEXED

APPENDIX 1

A-2

4652 UNITED STATES v. BURKE

cross-examination; that the trial court did not abuse its

discretion in denying severance to certain defendants; and

that the trial court’s failure to specially instruct’on admitted

perjurious testimony and to apply the maxim “falsus in uno,

_ falsus in omnibus” to particular witness’ testimony was not

error.

Affirmed.

1. Gaming @928(1)

Threats 7

‘Evidence was sufficient to sustain convictions of making

extortionate extensions of credit, using extortionate means of

collecting debts, interstate travel in furtherance of extortion,

interstate travel for promotion oi an illegal gambling enter-

prise and use of interstate telephone facilities in an unlawful

gambling enterprise. 18 U.S.C.A. §§ 892, 894, 1952.

2. Criminal Law =419(2)

Victims’ testimony about operation of fraudulent gam-

bling scheme concerning what one codefendant said or did

constituted “verbal acts” or statements which were elements

of extortion crimes charged rather than inadmissible hearsay.

18 U.S.C.A. §§ 892, 894, 1952.

3. Threats 7

Victims’ testimony concerning what codefendant, who

organized extortionate gambling scheme, said or did was

relevant and was properly admitted in evidence in the trial

against remaining defendants. 18 U.S.C.A. §§ 892, 894, 1952.

4. Criminal Law 423(1)

The acts of one partner in crime are admissible against

the others when it is in furtherance of the criminal undertak-

ing.

5. Criminal Law <=423(9)

Victims’ testimony, concerning statements by the defend-

ants residing in Miami that the defendants’ “cousin from up

north” would bring people down here “and get the money one

A-3

UNITED STATES v. BURKE 4693

way or another,” concerned statements which constituted the

very activity in combination with which the remaining de-

fendants were charged and were admissible and attributable

to the other defendants. 18 U.S.C.A. §§ 892, 894, 1952.

6. Criminal Law *=662(1)

Where the declarants, as defendants, were unavailable to

the government, there was sufficient indicia of reliability of

the victims’ statements concerning the declarants’ statements

and the references in victims’ testimony were not crucial to

the government’s case nor devastuting to the defense, the

admission of victims’ testimony concerning statements by

codefendants referring to other defendants did not deny the

other defendants the right to confront the witnesses against

them. U.S.C.A.Const. Amend. 6.

7. Criminal Law 1171.2

Where defendants were afforded full opportunity to

present their objections to admission of victims’ testimony

concerning declarations and acts of a codefendant, and there

was sufficient independent evidence to establish the existence

of common understanding of crimir:2] objective between all

defendants, the defendants were not prejudiced by prelimi-

nary statement that the conspiracy rules of evidence were not

applicable or by failure of the prosecution to define the scope

and purpose of any conspiracy or joint venture in crime.

8. Witnesses <=414(2)

Victim’s testimony about his statements to his treating

doctor on the night after he was beaten by the defendants

was admissible for purpose of supporting victim’s story after

the defense had attacked the story as recent fabrication even

if the statements about his beating were not necessary for

medical diagnosis or treatment.

9. Criminal Law =>422(1), 1169.7

Testimony of government agent relating to an interview

with one defendant was irrelevant and thus inadmissible; the

error in admitting such evidence was not prejudicial.

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4644 UNITED STATES v. BURKE

10. Witnesses ©>367(1)

Where defendants did not show material differences from

state trial in witness’ testimony or any other way in which his

testimony was biased by the state trial and the trial court had

earlier ruled that evidence of the state acquittal was irrele-

vant, trial court properly refused to permit defendants to

show the witness’ bias by introducing statements by the

witness, after defendants’ acquittal in state court, that wit-

ness was unhappy with, and skeptical of, that trial’s outcome.

11. Criminal Law *=666'4

Where defense had full weekend to prepare its cross-ex-

amination and made no showing of any prejudice resulting

from two-hour conference between witness and the prosecutor

during the weekend, trial court did not abuse its discretion in

granting permission for the prosecutor to “work with” witness

over the weekend in order to discuss the upcoming cross-ex-

amination.

12. Criminal Law @622(1)

Motion for severance is addressed to the discretion of the

trial judge. Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.

13. Criminal Law =622(1)

In order to challenge successfully the refusal of trial

judge to grant a motion to sever, a defendant must show

prejudice which results in the denial of a fair trial. Fed.Rules

Crim.Proc. rule 14, 18 U.S.C.A.

14. Criminal Law 2=622(2)

Trial court did not abuse its discretion in denying defend-

ants a severance from codefendants even though defendants

subpoenaed the codefendants as witnesses and timely moved

for severance where there was no showing that the codefend-

ants’ testimony would be exculpatory in effect or would raise

strong doubts as to defendants’ guilt, there was no showing of

antagonistic defenses and considerations of judicial economy

and administration weighed heavily in favor of the denial.

A-5

UNITED STATES v. BURKE 4695

Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.; U.S.C.A.Const.

Amend. 14.

15. Criminal Law ©=721(3)

Prosecutor’s argument “* * * that the people who

were there were all the witnesses who testified to the facts

and all of the defendants, that they were there when this

occurred; and you have all the testimony as to what hap-

pened.” was not of such character that the jury would natu-

rally and necessarily take it to be comment on failure of the

accused to testify.

16. Criminal Law 1171.1(1, 2)

Record in prosecution for making extortionate extensions

of credit, using exto:tion as means of collecting debts, inter-

state travel in furtherance of extortion, interstate travel for

promotion of an illegal gambling enterprise and use of inter-

state telephone facilities in an unlawful gambling enterprise

established that argument and actions of prosecutor were not

so misleading, inflammatory or prejudicial as to deny defend-

ow?

ants a fair trial. 18 U.S.C.A. §§ 892, 894, 1952.

17. Criminal Liaw @785(15)

Where witness acknowledged during federal trial that his

denial at state trial that he knew of his brother’s gambling

was false ard was made because he had been afraid at the

time to expose his knowledge of the gambling because of the

treatme it received by his brother and the witness had lan-

guage difficulties, trial court’s refusal to specially instruct the

jury about admitted perjurious testimony and to apply the

maxim “falsus in uno, falsus in omnibus” to the witness’

testimony was not error.

18. Criminal Law @201

Judgment <—828(3.10)

Federal government was noi precluded by doctrines of

double jeopardy and collateral estoppel from trying defend-

ants on federal extortion charges because the defendants were

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4696 UNITED STATES v. BURKE

acquitted on state charges of kidnapping, extortion and as-

sault with intent to murder. 18 U.S.C.A. §§ 892, 894, 1952.

Appeals from the United States District Court for the

Middle District of Florida.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

GEE, Circuit Judge:

On appeal from their conviction for various gambling and

extortion offenses, appellants raise issues of sufficiency of the

evidence, admission of inadmissible hearsay, denial of the

right to confrontation, failure to sever the trial of Burke, Hill

and Lopez from the trial of Raul and Luis Charbonier, prose-

cutorial misconduct, improper jury instructions, and collateral

estoppel. Concluding that their contentions are meritless, we

affirm the convictions.

In November, 1970, the United States indicted James

Burke, Henry Hill, Louis Lopez, Raul Charbonier and Luis

Charbonier’ on five counts. The charges consisted of (1)

making extortionate extensions of credit;* (2) using extor-

1. Cosmo Rosado (‘‘Pupi’’), the Charboniers’ cousin, was indicted

also, but he died shortly before trial.

2. In violation of 18 U.S.C.A. § 892:

§ 892. Making extortionate extensions of credit

(a) Whoever makes any extortionate extension of credit, or

conspires to do so, shall be fined not more than $10,000 or

imprisoned not more than 20 years, or both.

(b) In any prosecution under this section, if it is shown that all

of the following factors were present in connection with the

extension of credit in question, there is prima facie evidence that

the extension of credit was extortionate, but this subsection is

nonexclusive and in no way limits the effect or applicability of

subsection (a):

(1) The repayment of the extension of credit, or the perform-

ance or any promise given in consideration thereof, would be

unenforceable, through civil judicial processes against the debtor

(A) in the jurisdiction within which the debtor, if a natural

person, resided or

(B) in every jurisdiction within which the debtor, if other than

a natural person, was incorporated or qualified to do business

at the time the extension of credit was made.

A-7T

UNITED STATES v. BURKE 4697

tionate means of collecting debts;* (3) interstate travel in

furtherance of extortion; (4) interstate travel for promotion

(2) The extention of credit was made at a rate of interest in

excess of an annual rate of 45 per centum calculated according to

the actuarial method of allocating payments made on a debt

between priucipal and interest, pursuant to which a payment is

applied first to the accumulated interest and the balance is applied

to the unpaid principal.

(3) At the time the extension of credit was made, the debtor

reasonably believed that either

(A) one or more extensions of credit by the creditor had been

collected or attempted to be collected by extortionate means, or

the nonrepayment thereof had been punished by extortionate

means; or

(B) the creditor had a reputation for the use of extortionate

means to collect extensions of credit or to punish the nonrepay-

ment thereof.

(4) Upon the making of the extension of credit, the total of the

extensions of credit by the creditor to the debtor then outstanding,

including any unpaid interest or simular charges, exceeded $100.

(c) In any prosecution under this section, if evidence has been

introduced tending to show the existence of any of the circum-

stances described in subsection (b)(1) or (b)(2), and direct evi-

dence of the actual belief of the debtor as to the creditor's

collection practices is not available, then for the purpose of

showing the understanding of the debtor and the creditor at the

time the extension of credit was made, the court may in its

discretion allow evidence to be introduced tending to show the

reputation as to collection practices of the creditor in any commu-

nity of which the debtor was a member at the time of the

extension.

3. In violation of 18 U.S.C.A. § 894:

§ 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 not 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 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 under this section, if evidence has been

introduced tending to show the existence, at the time the exten-

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4698 UNITED STATES v. BURKE

of an illegal gambling enterprise; and (5) use of interstate

telephone facilities in an unlawful gambling enterprise.‘

The scheme that led to the indictments was crude but

effective. Raul Charbonier owned the Char-Pal a combina-

tion lounge-liquor store in Tampa, Florida. His friend Gaspar

Ciaccio also owned and operated, in conjunction with his

brother Fano Ciaccio, a lounge-liquor store, the Temple Ter-

race Lounge, located not far from Charbonier’s establishment.

sion of credit in question was made, of the circumstances de-

scribed 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 made was a

member at the time of the collection or attempt at collection.

4. The last three counts in violation of 18 U.S.C.A. § 1952:

§ 1952. Interstate and foreign travel or transportation in aid of

racketeering enterprises

(a) Whoever travels in interstate or foreign commerce or uses

any facility in interstate or foreign commerce, including the mail,

with intent to— ‘

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful

activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate

the promotion, management, establishment, or carrying on, of any

unlawful activity,

and thereafter performs or attempts to perform any of the acts

specified in subparagraphs 1), (2), and (3). shall be fined not

more than $10,000 or imprisoned for not more than five years, or

both.

(b) As used in this section “unlawful activity” means (1) any

business enterprise involving gambling, liquor on which the Feder-

al excise tax has not been paid) narcotics or controlled substances

(as defined in section 102(6) of the Controlled Substances Act), or

prostitution offenses in violation of the laws of the State in which

they are committed or of the’ United States, or (2) extortion,

bribery, or arson in violation of the laws of the State in which

committed or of the United States.

(c) Investigations of violations under this section involving

liquor shall be conducted under the supervision of the Secretary

of the Treasury.

A-9

UNITED STATES v. BURKE 4699

Early in 1970, Raul Charbonier approached Gaspar Ciaccio

with a gambling proposition. Raul could obtain a rigged line

or odds sheet on baseball games during the upcoming season

from his cousin Pupi in New York, and he offered Ciaccio the

opportunity to bet on the games using the line. Gaspar

Ciaccio informed his friend Dr. Felix LoCicero of the opportu-

nity and introduced him to Charbonier. In June, 1970, after

Charbonier explained the scheme in detail to Ciaccio and

LoCicero and enlisted them, they began betting. Charbonier

guaranteed that the line was rigged so Ciaccio and Dr. LoCice-

ro would win. The system allowed only bets on the team

designated as the favorite in any particular game, at the odds

specified. The gamblers could select any number of games on

the list to bet on. Charbonier received the line by telephone

from New York and phoned the daily lists to either Ciaccio or

LoCicero.

The betting began with bush-league sums in early June,

1970. As promised, Ciaccio and LoCicero won consistently in

the beginning, and they increased the amounts of their bets as

the season progressed. By the All-Star game break in July,

they had compiled $7,500-$8,000 in unpaid winnings. The

wagers by that time had reached the major leagues—as much

as $1,000 per game. The All-Star game marked the end of

Ciaccio’s and LoCicero’s hitting streak. After winning the bet

on that game, they began striking out consistently. By early

August, both had not only lost their previously-compiled win-

nings but were deeply in the hole. Although they had paid in

over $7,800, Ciaccio and LoCicero still owed over $13,000 when

they called the game. When a friend of Ciaccio’s, Tony

Marchese (who was a bit more knowledgeable about gambling

and baseball) saw one of the odds sheets Charbonier supplied

Ciaccio, he informed Ciaccio, that, contrary to Charbonier’s

promise of a line rigged to win, the odds were deceptively

rigged to insure losing bets. Ciaccio and LoCicero informed

Charbonier that they refused to play any longer.

A-10

4700 UNITED STATES v. BURKE

LoCicero paid Charbonier another $1,000 on August 24 and

had no further contact with him until October 8. The’Charbo-

niers did not forget Ciaccio. Raul Charbonier pressed Ciaccio

to pay his remaining losses several times between August and

October. Ciaccio refused to pay the amount because he be-

lieved he had been duped. Once Charbonier assured Ciaccio

that, if he did not pay tive debt, Charbonier’s cousin would

come down from New York and “he would bring some people

down here and get the money one way or another.” Raul

added to his lineup about that time by substituting his brother

Luis as a pinch-hitter. In late August, Luis demanded that

Ciaccio pay up. Ciaccio again refused.

To complete the lineup, Cosmo Rosado, James Burke, Henry

Hill and Louis Lopez flew from New York to Tampa the night

of October 8 arriving about 9:45 p.m. Rosado rented a car

and informed the rental agent that he would use the car for

an indeterminate time up to five days without a local address.

Around 10:30 that night, Luis Charbonier and Rosado, ac-

companied by the others from New York, accosted Ciaccio in

his own lounge. After some serious haggling about Ciaccio’s

debt, Luis Charbonier and Rosado told Ciaccio to accompany

them to Charbonier’s lounge. When Ciaccio refused, Burke

nudged a gun against his ribs. Having thus received an offer

he couldn’t refuse, Ciaccio went along, surrounded by the five

antagonists. Foregoing any further pleasantries, Hill and

Lopez, sitting on either side of Ciaccio in the back seat of the

car on the way to the other lounge, began beating him. Lopez

split open Ciaccio’s forehead with a pistol. Hill and Lopez

stated that they would kill Ciaccio, but that it would not be

worthwhile since they wanted their $8,000.

Raul Charbonier greeted Ciaccio, when they arrived at the

Char-Pal, with, “I told you this was going to happen to you,

didn’t I? I told you this.” While at the Char-Pal, the

collectors placed Ciaccio in the stockroom and beat on him

some more. While Gaspar Ciaccio was enduring his status of

punching bag, Raul Carbonier called Gaspar’s brother, Fano

A-11

UNITED STATES v. BURKE 4701

Ciaccio, at the Temple Terrace Lounge. Raul explained to

Fano that they had his brother and they were “working him

over.” Raul said, “These fellows are from up North and they

want their $8,000.” Fano went to the Char-Pal Lounge to

negotiate with Charbonier. After Fano explained he did not

have the $8,000, Rosado told him that he could have a week to

produce it. Subsequently, Raul Charbonier brought Gaspar

back to the Temple Terrace Lounge. Some friends helped

Gaspar change his bloody clothes and took him to a nearby

hospital, where he was treated and the wound in his forehead

was stitched up. Gaspar Ciaccio, who was away from work

for a week after the beating, borrowed $8,000 from relatives

and paid it to Charbonier by the end of the week.

Raul Charbonier had not forgotten LoCicero either. About

midnight on the same night as Ciaccio’s beating, Charbonier

called LoCicero. Charbonier informed LoCicero that they had

Gaspar, they had gasoline in the car, and they wanted to come

over to see LoCicero. Charbonier agreed that, if LoCicero

would promise to pay the balance in the morning, he would

keep them away from him. LoCicero agreed. He offered a

thumbnail sketch of his reaction: “I was scared as hell.” At

the earliest opportunity, he paid Raul Charbonier $4,000 to

cancel the gambling debt.

Early on October 9, Rosado turned in the rental car at the

airport. Rosado, Burke, Hill and Lopez returned to New York

that same morning, flying through Miami.

On November 2, 1970, six days after the federal indictment

was returned, state officials charged these defendants with

kidnapping, extortion and assault with intent to murder Gas-

par Ciaccio. The state case proceeded expeditiously and was

tried in early March, 1971. All defendants were acquitted.

The federal case was delayed by various legal maneuverings

of the defendants until October, 1972. The trial court di-

rected a verdict of not guilty on Count V as to Burke, Hill and

Lopez, because no evidence of phone calls by them existed.

The jury found the Charboniers guilty on all counts and

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4702 UNITED STATES v. BURKE

Burke, Hill and Lopez guilty on Counts I through IV. The

court sentenced each individual to ten years’ imprisonment.

Evidentiary Issues

{1] Burke, Hill and Lopez contend pro forma that the

evidence was insufficient to sustain their convictions. The

contention is frivolous in light of the overwhelming and

detailed testimony by Ciaccio and others about these appel-

lants’ conduct. But Burke, Hill and Lopez seriously insist that

massive infusions of inadmissible hearsay denied them a fair

trial and their respective rights to confront the witnesses

against them.’

{2] First, they complain of Ciaccio’s and LoCicero’s testi-

mony about the operation of the gambling scheme-during the

spring and summer. They assert as inadmissible hearsay

virtually everything the witnesses said that Raul Charbonier

said or did. These statements, rather than hearsay, as appel-

lants assert, were “verbal acts,” statements which were ele-

ments of the crimes charged. With the exceptions discussed

below, none of the statements or acts attributed to Charbonier

r-lerred to Burke, Hill and Lopez.

[3,4] The issue, then, is whether this non-hearsay evidence

was admissible in the trial against Burke, Hill and Lopez.

Doubtless it was relevant. It established and detailed the

gambling scheme which was the context for the extortionate

extensions of credit and the extortionate collection methods.

Additionally, the gambling supplied the element which made

the interstate travel and use of interstate telephone facilities

5. The Charboniers do not brief but simply adopt, where applicable,

the arguments of Burke, Hill and Lopez on the issues of inadmissible

hearsay, severance and collateral estoppel. Where applicable, we

reject the Charboniers’ adoption of those arguments.

Burke, Hill and Lopez, in turn, do not brief but simply adopt,

where applicable, the arguments of the Charboniers on the issues of

prosecutorial misconduct, improper comment on defendants’ failure

to testify, denial of confrontation and due process as to witness

Cram, and failure of the court to give requested instructions.

Where applicable, we reject Burke's, Hill's and Lopez’ adoption of

those arguments.

A-13

UNITED STATES v. BURKE 4703

illegal. No issve of prejudice or necessity for cautionary

instructions arose because these defendants were not men-

tioned as involved in the original arrangements or operations

of the gambling scheme. Whether these particular acts of

Charbonier were attributable to Burke, Hill and Lopez was

essentially irrelevant. As to them, it was only the action of

October &th to which federal criminal liability could be as-

cribed. To the extent the jury may have associated these

defendants with the origination of the gambling, it was per-

missible under the traditional principle that the acts of one

partner in crime are admissible against the others when it is

in furtherance of the criminal undertaking. Orser v. United

States, 362 F.2d 580, 585 (Sth Cir. 1966).

The witnesses did relate a few statements by the Charboni-

ers referring to Cosmo Rosado, the “cousin from up North”

and to “people” that his cousin would “bring down here and

get the money one way or another.” Most clearly incrimina-

ting to these three appellants was the phone conversation

between Raul Charbonier and LoCicero of October 8th, related

by LoCicero on the witness stand:

I received a telephone call and the words were, “Doc, this

is Raul. They have Gaspar in the car. They have gasoline

in the car. And they want to come over to see you. If you

guaranty me you will pay the balance by tomorrow I will

tell them not to come over.”

I related at that time that I thought that matter had

been settled. Says, “No. They want their money now.”

Says, “Well you come to my office tomorrow and I will have

the money for you.” He suid, “That is good enough for

”

me.” And hung up.

[5,6] Again, these statements were not hearsay but were

statements which constituted the very activity in combination

with which the defendants were charged. As such, they were

admissible and attributable to Burke, Hill and Lopez. Addi-

tionally, these statements did not deny these appellants the

A-14

4704 UNITED STATES v. BURKE

Sixth Amendment right to confront the witnesses against

them. Although the rationale for admission of these state-

ments is not the co-conspirator exception to the hearsay rule,

the analysis of these “verbal acts” in light of the confronta-

tion clause necessarily follows many of the same guidelines.

The declarants, as defendants, were unavailable to the

government; sufficient indicia of reliability, both as to Char-

bonier’s threatening purpose and as to the reference on Octo-

ber 8th to “they,” meaning Burke, Hill and Lopez,’ was

supplied by overwhelming independent evidence of these ap-

pellants’ activities; also, in light of the direct evidence of

Burke's, Hill’s and Lopez’ participation, references to “they”

were not “crucial” to the government’s case nor “devastating”

to the defense. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27

L.Ed.2d 213 (1970); Park v. Huff, 493 F.2d 923 (5th Cir. 1974);

Davenport, The Confrontation Clause and the Co-conspirator

Exception in Criminal Prosecutions: A Functional Analysis,

85 Harv.L.Rev. 1378 (1972).

[7] Appellants insist not only that the evidence was inad-

missible but that they were prejudicially misled by a prelimi-

nary statement that the conspiracy rules of evidence were not

applicable and by the failure of the prosecution to define the

scope and purpose of any conspiracy or joint venture in crime.

We find no evidence in the record of disadvantage or preju-

dice to appellants. They were afforded full opportunity to

present their objections, which they did—promptly, thorough-

ly and unctuously. The tria! judge, at an appropriate time,

found that sufficient independent evidence of the “co-partner-

ship,” “joint venture,” or common undertaking of a criminal

objective existed to establish that relationship between de-

fendants, to reinforce the reliability of the extra-judicial

6. Thus we need not consider whether conspiracy must actually be

charged in order to invoke that exception. Compare United States

v. Harrell, 436 F.2d 606, 616 (5th Cir. 1970), with United States v.

Williamson, 482 F.2d 508, 513 (5th Cir. 1973).

7. And Cosmo Rosado.

A-15

UNITED STATES v. BURKE 4705

statements, and to furnish the necessary relevance of the

evidence. Orser v. United States, supra, at 585.

[8,9] Two more minor evidentiary questions warrant dis-

cussion. First, appellants insist that Gaspar Ciaccio’s testimo-

ny about his statements to his treating doctor on the night of

October 8th after his beating were inadmissible hearsay. As-

suming appellants are correct that the statements about his

heating were not necessary for medical diagnosis or treat-

ment, the testimony was still admissible to support Ciaccio’s

story after the defense had attacked Ciaccio’s story as a recent

fabrication. McCormick, Evidence (2d) § 251 (1972). Second-

ly, appellants claim that the testimony of a government agent

relating an interview with Raul Charbonier on November 13,

1970, was inadmissible. We agree that it was inadmissible

simply as irrelevant, if for no other reason. During the

interview, Charbonier denied the whole gambling and extor-

tion scheme. Additionally, it was not in furtherance of the

criminal goal for which defendants were charged. And it

lacked any reference to any other defendant. Whatever

effect the statement may have generated, however, it was not

substantial or prejudicial enough to warrant reversal.

{10] Earl Cram, a witness, had seen Gaspar Ciaccio come

out of his lounge on October 8th surrounded by four of the

defendants and Rosado. After cross-examination of Cram,

defendants sought to show his bias by introducing statements

by Cram, after defendants’ acquittz| in state court, that he

was unhappy with, and skeptical of, that trial’s outcome.

Defendants did not show material differences from the state

trial in Cram’s testimony or any other way in which his

testimony was biased by the state trial outcome. Additional-

ly, the district court had earlier ruled that evidence of the

state acquittal was irrelevant and it was within his discretion

to foreclose the defendants’ attempt to refer to it.

(l1] Direct examination of Gaspar Ciaccio lasted until late

on a Friday afternoon before a three-day weekend. The

district judge granted permission for the prosecutor to “work

A-16

4706 UNITED STATES v. BURKE

with” Ciaccio over the weekend in order to discuss the upcom-

ing cross-examination. Defendants urge that this deprived

them of the “timely thrust of naturalness” inherently essen-

tial to cross-examination. The defense had the full weekend

to prepare its cross-examination and they have not shown any

prejudice resulting from the two-hour conference between

Ciaccio and the prosecutor. Thus, we cannot say the district

court abused its discretion in allowing it.

Severance

{12,13] Appellants insist that the district court erred in

failing to grant a severance of the Charboniers’ trial from

that of Burke, Hill and Lopez. Rule 14, F.R.Crim.P., provides

that a motion for a severance is addressed to the discretion of

the trial judge. Opper v. United States, 348 U.S. 84, 75 S.Ct.

158, 99 L.Ed. 101 (1954); Smith v. United States, 385 F.2d 34

(5th Cir. 1967). To challenge successfully the refusal of a trial

judge to grant a motion to sever, an appellant must show

“prejudice resulting in the denial of a fair trial.” United

States v. Martinez, 486 F.2d 15 (5th Cir. 1973); United States

v. Nakaladski, 481 F.2d 289 (5th Cir. 1973). In Byrd v.

Wainwright, 428 F.2d 1017 (5th Cir. 1970), we enumerated

guidelines for evaluating motions for severance based on a

desire to offer exculpatory testimony of a co-defendant.”

[14] We agree that the defendants satisfied two of the

criteria. (1) Burke, Hill and Lopez subpoenaed the Charboni-

ers as witnesses and, although tardily, sufficiently communi-

cated to the trial judge that they desired to use the Charboni-

ers as witnesses; (2) the appellants timely made (although

over a year after indictment) the requisite motions and re-

newed them during trial.

On the other hand, we cannot say that these appellants

satisfied the other criteria sufficiently to warrant a conclusion

8. See United States v. Martinez, 486 F.2d 15, 22 (5th Cir. 1973),

where we said that the Fourteenth Amendment due process criteria

are similar to those of Rule 14, F.R.Crim.P.

A-17

UNITED STATES v. BURKE 4707

that the district court abused its discretion. (1) The Charboni-

ers filed affidavits which tracked exacily the language of the

indictments but expressed it in the negative. These affidavits

failed to clearly show what the Charboniers would have testi-

fied to. The movants made no showing that the Charboniers’

testimony would be exculpatory in effect or would raise

strong doubts as to Burke’s, Hill’s and Lopez’ guilt. Byrd,

supra at 1020-1021. (2) The likelihood that the Charboniers

would testify if tried separately was enhanced by the Charbo-

niers’ affidavits to that effect, but that likelihood was dimin-

ished by the failure to show why the Charboniers would have

been willing to testify at a separate trial but not in the joint

one. The usual reason for such a strategy is inconsistent or

antagonistic defenses—the testimony that exonerates the

movant will implicate the co-defendant witness. Byrd, supra

at 1022; United States v. Johnson, 478 F.2d 1129 (5th Cir.

1973). Appellants made no such showing to the trial judge.

(3) Considerations of judicial economy and administration

weigh heavily in favor of the district court’s decision. By

various manuevers defendants delayed commencement of the

trial for almost two years after indictment, the trial itself

required nearly three weeks, and separate trials would have

required virtual duplication of great effort and expense.

Miscellaneous

[15] Appellants urge that the following remark by the

prosecutor during rebuttal argument was improper comment

on the failure of the defendants to take the stand:

Defense counsel stated that, while they were not there

and I wasn’t there—I want to point out to you, ladies and

gentlemen, that the people who were there were all the

witnesses who testified to the facts and all of the defend-

ants, and they were there when this occurred; and you have

the testimony as to what happened.

In the context presented, countervailing arguments by counsel

that neither the prosecutor’s nor the defense counsel's state-

A-18

4708 UNITED STATES v. BURKE

ments constitute evidence in the case, we cannot conclude that

this statement “. . . was manifestly intended or was ‘of

such a character that the jury would naturally and necessarily

take it to be a comment on the failure of the accused to

testify.” United States v. White, 444 F.2d 1274, 1278 (5th

Cir. 1971).

[16] Appellants also insist that the prosecutor below en-

gaged in other serious misconduct sufficient to deny them a

fair trial. After reviewing the record of the incidents, state-

ments and arguments alleged to have been prejudicial, we

conclude that they were not so misleading, inflammatory or

prejudicial as to deny defendants a fair trial.

[17] In the state trial, Fano Ciaccio had denied that he

knew of his brother’s gambling. At the federal trial, he

acknowledged that his earlier statement was false and ex-

plained that he had been afraid at the time to expose his

knowledge of the gambling because of the treatment received

by his brother. Additionally, due to language difficulties

Fano was confused and made misstatements on cross-exami-

nation which he or the prosecutor had to correct. On these

factors, defense counsel requested the district judge to special-

ly instruct the jury about admitted perjurious testimony and

to apply the maxim “falsus in uno, falsus in omnibus” to

Fano’s testimony. The trial judge refused to so instruct the

jury, but he allowed defense counsel to argue the point to the

jury. In light of all the circumstances and the thorough

instructions given by the court, we cannot conclude the failure

to give these instructions was error. Cf. Luna v. Beto, 395

F.2d 35 (5th Cir. 1968).

{18] Finally, appellants’ contention that the federal

government was precluded by doctrines of double jeopardy

and collateral estoppel from trying these defendants under

these charges after the state court acquitted them is foreclos-

ed by Bartkus v. Illinois, 359 US. 121, 79 S.Ct. 676, 3 L.Ed.2d

684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct.

A-19

UNITED STATES v. BURKE 4709

666, 3 L.Ed.2d 729 (1959); see United States v. Vaughan, 491

F.2d 1096 (5th Cir. 1974).

Affirmed.

A-20

IN THE UNITED STATES COURT OF APPEALS

, “TFTL RCUIT

FOR TUE Fit Cl APPENDIX 2

~JURT OF A.

NO. 73-1045 FILED

AUGQ 1974

*.DWARD W. WAwswor7

CLE"

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAUL CHARBONIER and LUIS CHARBONIER,

Defendants-Appellants.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING

August 9 , 1974)

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and the

sane is hereby Dewten.

ez

Ar® oiwwae =

{1] A-21 (1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA :

Vv.

COSMO ROSADO,

also known as

also known as

also known as

also known as

LUIS CHARBONIER;

RAUL CHARBONIER,

JAMES BURKE;

HENRY HILL; and

LUIS LOPEZ

Cosme Rosado,

C. Rasano :

Casey Rosado, CASE NO. 7 -2F7- F2.T~

"Pupi"; :

JR.; :

The Grand Jury charges:

COUNT ONE

On or about October 8, 1970, at Tampa, in

Hillsborough County, Florida, in the Middle District

of Florida,

COSMO ROSADO,

also known as Cosme Rosado,

also known as C. Rasano,

also known as Casey Rosado,

also known as "Pupi";

LUIS CHARBONIER;

RAUL CHARBONIER, JR.;

JAMES BURKE;

HENRY HILL; and

LUIS LOPEZ

as creditors, knowingly, intentionally and unlawfully

did make and cause to be made an extortionate extension

of credit within

the meaning of Section 891(6), Title 18,

United States Code, to Gaspar Ciaccio, and Dr. Felix

LoCicero, as debtors, that ‘is, said defendants had been

engaged in a gambling enterprise and said defendants

claimed that Gaspar Ciaccio and Dr. Felix LoCicero owed

to said defendants the amount of $14,500 as a gambling

deot and that with respect to which debt or claim it was

1) A-22 [1]

the understanding of the said defendants, the creditors,

and Gaspar Ciaccio and Dr. Yelix LoCicero, he debtors,

that delay in making repayment and failure to make re-

payment could result in the use of violence and other

criminal means to cause harm to the persons, reputations

and properties of the said Gaspar Ciaccio and Dr. Felix

LoCicero; in violation of Sections 2 and 892, Title 18,

United States Code.

COUNT TWO

On or about October 8, 1970, at Tampa, in

Hillsborough County, Plorida, in the Middle District

of Florida,

COSMO ROSADO,

also known as Cosme Rosado, ~

also known as C. Rasano,

also known as Casey Rosado,

also known as "Pupi";

LUIS CHARBONIER; .

RAUL CHARBONIER, JR.;

JAMES BURKE;

HENRY HILL; and

LUIS LOPEZ

knowingly, intentionally and unlawfully participated in

the use of an extortionate means as defined in Section

891(7), Title 18, United States Code, to collect from

Gaspar Ciaccio and Dr. Felix LoCicero an extension of

credit and to punish Gaspar Ciaccio for the non-repayment

thereof, to wit, the defendants expressly and implicitly

threatened the use of violence and other criminal means

to cause harm to the persons, reputations and properties

of the said Gaspar Ciaccio and Dr. Felix LoCicero and,

in fact, defendants did use violence and other criminal

means in causing harm to the person of the said Gaspar

Ciaccio; all in violation of Sections 2 and 894, Title

18, United States Code.

ae

Or 4 ere ~~

(11 A-23 [1]

COUNT THREE

On or about October 8, 1970, at Tampa, in

Hillsborough County, Florida, in the Middle District of

Picorida,

\

COSMO ROSADO,

also known as Cosme Rosado,

also known as C. Rasano,

also Known as Casey Rosado, \

also known as "Pupi";

LUIS CHA NIER;

RAUL CHA NIER, JR.;

JAMES BURKE;

HENRY HILL; and

LUIS LOPEZ

knowingly, wilfully and unlawfully did travel and cause

to travel in interstate commerce from New York City,

tiew York, to Tampa, Florida, with the intent to promote,

manage, establish, carry on and facilitate the promotion,

management, establishment, and carrying on of an unlawfi

activity, such unlawful activity being the extortion of

persons residing in Tampa, Florida, in violation of the

laws of the State of Florida, to wit: Plorida Statutes

Annotated, Section 836.05, and that thereafter the said

defendants did perform and attempt to perform acts to

promote, manage, establish, carry on and facilitate the

promotion, management, establishment, and carrying on

of the said unlawful activity; all in violation of

Sections 2 and 1952, Title 18, Unjted States Code.

COUNT FOUR

On or about October &, 1970, at Tampa, in

Hillsborough County, Florida, in the Middle District

of Florida,

—~_s sae a ti)

COSMO ROSADO,

also known as Cosme Rosado,

also known as C, Rasano,

also known as Casey Rosado,

also known as "Pupi";

LUIS CHARBONIER;

RAUL CHARBONIER, JR.;

JAMES BURKE;

HENRY HILL; and

LUIS LOPEZ

knowingly, wilfully and unlawfully did travel and causc

to travel in interstate commerce from New York City, New

York, to Tampa, Florida, with the intent to promote,

manage, establish, carry on and facilitate the promotion,

management, establishment, and carrying on of an unlawful

activity, such unlawful activity being a business enter-

prise involving gambling offenses in violation of the

laws of the State of Florida, to wit: Florida Statutes

Annotated, Sections 849.14 and 849.25, and that there-

after the said defendants did perform and attempt to

perform acts to promote, manare, establish, carry on

and facilitate the promotion, management, establishment,

and carrying on of the said unlawful activity; all in

violation of Sections 2 and 1952, Title 18, United States

Code.

COUNT FIVE

That from on or about April 1, 1970, and

continuing thereafter to on or about October 8, 1970, at

Tampa, in Hillsborough County, Florida, in the Middle

District of Florida,

COSMO FOSADO,

Also known as Cosme Rosado,

also kmown as C. Rasano,

also known as Casey Rosado,

also known as "Pupi";

LUIS CHARBONIER;

RAUL CHARBONIER, JR.;

JAMES BURK.;

HENRY HILL; and

LUIS LOPEZ

-4-

A-25 5 {1]

use and cause to be used a facility in interstate

corer, that is, the telephone, between Tampa, Florida,

arnt tne State of New York, with the intent to promote,

manage, establish, carry on and facilitate the promotion,

management, establishment and carrying on of an unlawful

eczivity, such unlawful activity being a business enter-

prise involving gambling offenses in violation of the

laws of the State of Florida, to wit: Florida Statutes

annotated, Sections 849.14 and 649.25, and that thereafter

the said defendants did perform and attempt to perform

acts to promote,manage, establish, carry on and facilitate

the promotion, managenent, establishment, and carrying on

of the said unlawful activity; all in violation of Sections

2 and 1952, Title 18, United States Code.

A TRUE BILL

JOHN L. BRIGGS

United States Attorney

A-26

8

IN THE CRIMINAL COURT OF RECORD

IN AND FOR HILLSBOPOUGE COUNTY, FLORID,

NO. 22808 DIVISION _A_

STATE OF FLORIDA INFORMATION FOR

APPENDIX 5

vs

COSME ROSADO la Cosmo Rosado a/k/a —_

C. Rosado a/k/a asey (Oar ENDAsT)

Rosado

JUDGMENT

“ao 12 1971

.D. SIMMO

if U

om a4

a S Cosey te

was this day adjudged Not Guilty in the above entitled

DONE AND ADJUDGED in Open Court at Tamps, Hillsborough County, Flonds

thie 12th dey of Merch ss 4 p. 19_71,

, rr’

IN THE CRIMINAL COURT OF

IN AND FOR HILLSBOROUGH GoGneS. FLORIDA

NoO.___72608 DIVISION _ A

STATE OF FLORIDA INFORMATION FOR

vs TO COMMIT MURDER In

THE towed DEGREE

ER Mg |

(887 EmDanT) F L fe fi)

JUDGMENT “AP 12 197)

This ie to eartity that___RAUL Cuannonten, zn. | &: D. SIMMONS

wae thie day adjudged Not Quilty in the above entitied cause

DOME AMD ADJUDGED ia Open Court st Tampa, Millcborough Cousty, Pride

thle 22th dey of march og bag 71

-

é ieee

A-27

Appendix 5

10

IN AND FOR MILLESORGUGH GoGo, FLORIDA

NO._72808 DIVISION A

STATE OF FLORIDA INPORMATION FOR

Vs

LUIS CHARBONIER

EXTORTION

(OEP ENOAMT)

JUDGMENT

ASSAULT WITH INTENT TO CIMMIT MURDER IN

FILE D

VAR 12 1071

L.D. SIMMONS

LAR CR Cot |

IN THE CRIMINAL COURT RECORD

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

NO._72608 DIVISION _A_

STATE OF FLORIDA INFORMATION FOR

vs INTENT TO COMMIT MURDER IN

JAMES BURK EXTORTION

Se —

— FILED

JUDGMENT “aR 12 1971

en of — tens some L.D. SIMMONS

‘vat lle day adjudged Not Guilty in the above extitied couse

sng ny AMUDGED 'n Open Court ot Tampa, Mulsheroegs Cusaty Florida

this 12th day of March AD, 19 71

A-28

epee bry

of tise

— So

=. . LABORATORY 4 -

FeD=: Buchs OF AVSTICATSI

Wastes 432 C 20555

esI, Miami dere: 11/24/90

VBI File Ne. 166-£22°¢

sau €, GISZSONS ER, JR.; LUIS Les. Ko. PC-F27-27 C3:

CUAVBONICR; COS*Z NOSADO, axa

COs.i9 Kosado, "Pupi"; LUIS LOviz;

LNSUBS, (TWO); GASPAR CIACCIO,

D::. FEL CICERO - VICTIMS;

ITAR - EATCATION

ec. ene ‘ece:wed 11/10/70

me Front floor mat

Q2 Rear floor met

Resilt of examination:

No blood was identified on specimen 9: or Y2.

j* ae. MRD cecal

‘a Fiuro aiiatieal

-~ oo

NoVS & 1270

rei— thhe a

APPENDIX 7

Dte hw OF 14 * 4 E-b