USCA1 Opinion
August 26, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1708
UNITED STATES,
Appellee,
v.
SIDNEY WEINER,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court issued on August 23, 1993, is amended
as follows:
On cover sheet under Attorneys' names "Mazer" should be corrected
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to read "Mezer."
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Dinisco should be corrected to read "DiNisco". On page 4,
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paragraph 2, "Santiago" should be corrected to read "Santiano."
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1708
UNITED STATES,
Appellee,
v.
SIDNEY WEINER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Feinberg,* Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Harry C. Mezer for appellant.
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Sean Connelly, Attorney, United States Department of Justice,
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with whom A. John Pappalardo, United States Attorney, Ernest S.
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DiNisco, Assistant United States Attorney, and Todd E. Newhouse,
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Assistant United States Attorney, were on brief for appellee.
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August 23, 1993
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*Of the Second Circuit, sitting by designation.
BOUDIN, Circuit Judge. Sidney Weiner, together with
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other defendants, was charged in a multi-count indictment
revolving around loansharking and illegal debt collection.
In the nineteen counts directed at Weiner, he was accused of
mail fraud, 18 U.S.C. 1341, conspiracy to collect
extensions of credit by extortionate means, 18 U.S.C. 894,
and conducting and conspiring to conduct the affairs of an
enterprise through a pattern of racketeering activity or
collection of unlawful debt, in violation of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
1962(c), (d).
Weiner's case was severed for reasons relating to his
health, and he stood trial alone.1 At the close of the
government's case, the trial court granted Weiner's motion
for acquittal as to all of the mail fraud counts and all but
four counts charging conspiracy to collect an extension of
credit through extortion. The jury convicted Weiner of
conspiring to violate, and violating, RICO, and of three
counts of extortion conspiracy under 18 U.S.C. 894; it
acquitted Weiner on the remaining count under 18 U.S.C.
894. The district court then sentenced Weiner to a term of
two years' imprisonment. Weiner now appeals. We affirm.
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1Other defendants were tried and convicted in United
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States v. Oreto, appeals pending, No. 91-1769, et al., 1st
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Cir.
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I.
The gist of the government's case, so far as pertinent
here, was that Weiner, a bank official, associated himself
with a loanshark enterprise headed by one Frank Oreto, Sr.;
that the loanshark enterprise encouraged debtors to obtain
bank loans, sometimes unlawfully, to pay off prior loanshark
debts; that new bank debts were collected by loanshark
enforcers using extortion; and that Weiner used his banking
position and properties he owned to facilitate the
enterprise's affairs. Because Weiner challenges the
sufficiency of the evidence, we summarize the government's
proof in some detail. Construed in a light favorable to the
verdict, see United States v. Rivera-Santiano, 872 F.2d 1073,
___ _____________ _______________
1078-79 (1st Cir.), cert. denied, 492 U.S. 910 (1989), the
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government's evidence permitted the jury to find the
following.
In 1982, Weiner, a director, consultant and stockholder
of Capitol Bank and Trust Company of Boston ("Capitol"),
hired Oreto to collect certain loans in default that were
made by Capitol. Oreto headed a loanshark operation that
loaned cash to borrowers at interest rates as high as seven
percent per week, and that employed tall, physically imposing
men who used threats of violence to collect from debtors who
fell behind in their payments. Through Weiner, Capitol
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compensated Oreto, with off-the-record cash payments from the
bank, for his services in collecting Capitol's own loans.
The three extortion conspiracy counts for which Weiner
was convicted involved debts owed by Frank Falzone, Fred
Lambert, and Chun Hing "Joe" Wong. Falzone and Lambert each
obtained a $2500 loan from Capitol by paying kickbacks to
Fred Dandrow and Ron Browder. Dandrow introduced Falzone and
Lambert to Browder, a Capitol loan officer. Browder
instantly approved their loan applications and issued bank
checks in the amount of the loans. Lambert borrowed the
money on his bookmaker's instructions to consolidate his
bookmaking debts.
When Falzone and Lambert defaulted on their loans,
Dandrow was summoned to Oreto's house to meet with Oreto and
Weiner. At the meeting, Oreto said that Dandrow would be
held responsible for any outstanding debt on the loans
secured by kickbacks, and Dandrow agreed to contact the
borrowers. At a second meeting with Oreto which Weiner did
not attend, Dandrow was introduced to "Beardsy" Santiago and
told to bring Santiago to the borrowers' homes. Santiago is
6'4" tall, weighs between 230-280 pounds, and was described
by Dandrow as resembling "a motorcycle gang member." Dandrow
later met with Weiner and Dennis Petrosino, another of
Oreto's collectors. Weiner told Dandrow to work with
Petrosino in collecting the loans.
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Dandrow went to Falzone's home, accompanied by Santiago
and Petrosino, and asked Falzone to get inside a car to
discuss repayment of his loan. Inside the car, Petrosino
told Falzone that his loan "wasn't going to go away" and that
Falzone's parents would have to pay the loan if Falzone did
not come up with the money. Falzone testified that he was
"pretty scared" and "just wanted to get out of the car." On
another occasion, Santiago drove Falzone to a house for a
meeting with Oreto, and Oreto told Falzone to make weekly
payments at Gateway Rent-A-Car, a business owned by Weiner.
Falzone left the meeting "scared" and made two subsequent
payments at Gateway. Eventually Falzone's mother contacted
Capitol to arrange a repayment schedule with the bank.
Lambert first came into contact with the Oreto
organization after receiving a phone call instructing him to
go to Gateway Rent-A-Car. There, he met "two big guys" who
said they "wanted their money." Lambert began to make weekly
payments of $25 which he paid to Oreto's men who would come
to his home in Winthrop to collect. Lambert stopped making
payments after he moved to another town. When he later moved
back to Winthrop, he was visited late one night by two
different "big," "heavy" men. In a discussion held in the
men's car, Lambert agreed to resume payment and handed over
$25 on the spot.
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When the payments later ceased, Lambert was summoned to
a meeting with Oreto at the Fasad's nightclub, another
business owned by Weiner. Lambert thereafter made weekly
payments on a consistent basis. He testified that Oreto and
his men scared him. The Lambert loan was discussed by Weiner
and Oreto's "collection manager," John Costa, in an
intercepted telephone conversation. When Costa said that
Lambert had been located and Costa proposed to "get back in
action with him," Weiner approved this plan.
Wong obtained his loan from the Community Cooperative
Bank ("Community"), where Weiner was also a director.
Community was later acquired by Capitol. Wong had heavy
gambling debts which he paid off by borrowing money from
Oreto at weekly interest rates of five percent. Wong's
repayments to Oreto were made at Gateway Rent-A-Car. Wong
then obtained a $30,000 loan from Community in order to pay
off his debt to Oreto. With Oreto's knowledge, Wong put up
his parent's house as collateral for the loan and signed his
parents' names to the loan papers supplied by Oreto. The
loan from Community was approved by Weiner.
Oreto required Wong to make weekly payments of $500 on
the loan. When Wong fell behind on his payments, Oreto sent
Petrosino and another man to the restaurant where Wong
worked. The men grabbed Wong, who was hiding in the kitchen,
took him outside, and told him that Oreto was mad and wanted
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to see him. In a meeting at Fasad's the next day, Oreto told
Wong, "it's not nice, you don't pay . . . I can beat you up
with a baseball bat." Wong fled to New Hampshire and had his
wife make further payments on the loan. Wong's parents
eventually learned that a mortgage had been placed on their
house without their consent. After they contacted Community
to report the problem, Weiner agreed to purchase the loan
from the bank.
The Oreto loanshark operation itself was the subject of
extensive evidence, certain of its records having been seized
by the authorities. The seized records revealed that "Sid,
the bank" paid part of the weekly salary of Costa, Oreto's
collection manager, for about 38 weeks in 1984-85. In
addition to hiring Oreto to collect bank loans, Weiner
allowed Oreto to conduct his loansharking business at Gateway
Rent-A-Car and Fasad's nightclub, both properties held in
Weiner's name.2 Oreto was Weiner's silent partner in the
ownership and operation of Fasad's.
II.
The evidence just recited is the core of the
government's effort to show that Weiner had conspired, in
violation of 18 U.S.C. 1984, to use "extortionate means" in
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2Wong testified that Oreto at one point told him, "We
are not working in Gateway anymore. We have a new place
called Fernwood restaurant. Next time you come up to pay me,
you should go to Fernwood." Fernwood was later renamed
"Fasad's".
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seeking to collect an extension of credit, or more precisely,
three loan debts owed respectively by Falzone, Lambert and
Wong. Weiner argues that the evidence was insufficient,
focusing on the element of extortion. "Extortionate means"
includes "the use," or "an express or implicit threat of
use," of "violence or other criminal means" to harm any
person or property. 18 U.S.C. 891(7). Weiner argues that
the evidence did not permit a rational jury to conclude
beyond a reasonable doubt that extortionate means were proved
or that he conspired to have the loans collected through such
means. We disagree.
Falzone and Lambert were not expressly threatened with
violence but implicit threats suffice under the express terms
of the statute. The evidence showed, among other things,
that Falzone and Lambert were confronted by large, physically
imposing men; that these men showed up at their homes, on one
occasion late at night; and that Falzone and Lambert were
directed to get into a car to discuss payment of the loans.
Both Falzone and Lambert testified that they were frightened,
with Falzone at one point hiding in his house. The jury
could rationally conclude that the two men had good reason to
be afraid. As for Wong, Oreto's statement about a beating
with a baseball bat is about as plain and direct a threat as
one can imagine.
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A rational jury could also conclude beyond a reasonable
doubt that Weiner knowingly conspired to collect the debts
through extortion. An agreement may "be implicit in the
working relationship between the parties that has never been
articulated but nevertheless amount to a joint criminal
enterprise." United States v. Moran, 984 F.2d 1299, 1300
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(1st Cir. 1993). In proving a conspiracy, the government may
rely entirely on circumstantial evidence. United States v.
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Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied, 113
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S.Ct. 1005 (1993). Once again, we think that the evidence of
Weiner's knowing complicity may not be overwhelming but that
it was assuredly adequate.
In this case, there is no reasonable doubt that Weiner
employed Oreto to collect bank debts so the only open issue
is whether Weiner knew of the means to be employed. Here
Weiner's connections with Oreto were extensive, and Oreto
operated from properties owned by Weiner or held in his name.
"Sid," "Sid, the bank" and "Sid Weiner" were mentioned in the
records of the loanshark business, and Weiner consulted
directly with Costa, the collection manager, about the
Lambert loan. Weiner paid Oreto with off-the-record bank
funds, and when the Wong parents threatened to disclose the
forgery, Weiner took over the loan from the bank.
This evidence was sufficient to permit a rational jury
to conclude beyond a reasonable doubt that Weiner was
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conscious of the means to be used by the Oreto organization
and hired Oreto for just that reason. Weiner testified and
offered the jury a different interpretation of the evidence.
He said that Oreto was hired merely to locate loan
defaulters, that the payments to Oreto were ordered by the
bank president, and that he (Weiner) was dismayed when he
later learned of Oreto's loansharking activities. The jury
was entitled not to credit the thrust of this testimony.
Weiner's next objection concerns the testimony of FBI
Special Agent Raymond Stirling, whom the government called as
an expert witness. Stirling, a specialist on loansharking,
reviewed the accounting ledgers and other documents seized
from the Oreto organization. His testimony explained
transactions reflected in the documents, loanshark
terminology, and other matters of a similar nature. Expert
testimony is allowed pursuant to Fed. R. Evid. 702 if it will
help the jury to understand the evidence or to decide a
particular fact in issue in the case. We have upheld the use
of an expert witness to explain matters pertaining to
loansharking. United States v. Lamattina, 889 F.2d 1191,
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1193-94 (1st Cir. 1989).
Weiner objects to one aspect of the testimony in
particular. Over objection, Stirling testified that, based
on documents showing the same telephone number next to
references in the records to "Sid," "Sid, the bank," and "Sid
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Weiner," it was his opinion that these persons were one and
the same. Weiner argues that this opinion reflected no
special expertise but was a routine inference that the jury
could draw on its own. We agree, but regard the error as
harmless. The inference was compelling that the references
(all to "Sid"), together with identical phone numbers,
referred to the same person. Stirling's opinion "connecting
the dots" added little or nothing.
Weiner next contends that the district court erred in
its treatment of evidence relating to the counts that it
dismissed prior to the verdict. As earlier noted, the
district court directed judgments of acquittal on the mail
fraud counts and on other counts charging conspiracy to
collect other loans through extortion. The dismissed counts,
involving other loanshark debtors, were also incorporated in
the RICO counts as predicate acts of racketeering. The
district court entered verdicts of acquittal on these counts
because in its view the government had failed to adequately
link Weiner to the charged activity. Weiner moved for a
mistrial, alleging prejudicial spillover of the evidence
introduced to support the dismissed counts.The district court
denied the motion but agreed to instruct the jury in the
closing charge to disregard this evidence. Although finding
the evidence relevant to the remaining RICO charges, the
court ordered the evidence stricken and the indictment re-
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written to exclude reference to the corresponding RICO
predicate acts because it thought the jury might otherwise be
confused about which counts remained in the case. In the
charge, the court neglected to instruct the jury to disregard
the stricken evidence, and Weiner's lawyer failed to object
to this omission.
Weiner now argues that the district court erred in
denying his motion for mistrial or, alternatively, that the
judge should have told the jury not to consider the evidence
relating to the dismissed counts. The problem is that Weiner
was not entitled to have this evidence excluded from the
jury's consideration. As the district court correctly
perceived, evidence of other loan collections by Oreto's
organization was relevant to the remaining RICO charges
against Weiner, regardless of whether Weiner was personally
involved in the racketeering acts underlying the dismissed
counts. As the Second Circuit has explained in the analogous
context of severance:
"[T]he government must prove an
enterprise and a pattern of racketeering
activity as elements of a RICO violation.
Proof of these elements may well entail
evidence of numerous criminal acts by a
variety of persons, and each defendant in
a RICO case may reasonably claim no
direct participation in some of those
acts. Nevertheless, evidence of those
acts is relevant to the RICO charges
against each defendant . . . because it
tend[s] to prove the existence and nature
of the RICO enterprise . . . ."
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United States v. DiNome, 954 F.2d 839, 843 (2d Cir.), cert
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denied, 113 S.Ct. 95 (1992). Thus, despite the dismissal of
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the separate counts, the jury was entitled to consider this
evidence in support of the RICO counts. Accord United States
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v. Mitchell, 777 F.2d 248, 260 n.3 (5th Cir. 1985), cert.
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denied, 476 U.S. 1184 (1986); United States v. Morelli, 643
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F.2d 402, 412 (6th Cir.), cert. denied, 453 U.S. 912 (1981).
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Of course, the evidence, although relevant, might have
been overly prejudicial. See Fed. R. Evid. 403. Of the few
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examples cited in Weiner's brief, only one is worth
mentioning: In an intercepted conversation played for the
jury, one of Oreto's operatives says he should "cut out" a
debtor's eyes. The statement is graphic, to be sure, but
extortion through threats of violence is not a pretty crime.
"By design, all evidence is meant to be prejudicial; it is
only unfair prejudice which must be avoided." United States
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v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989).
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Here, the evidence was pertinent in depicting the nature of
Oreto's organization; and, as a mere threat, with no actual
known victim, it assuredly did not overwhelm the jury.
Finally, Weiner objects to the district court's failure
to give several instructions requested by Weiner and to the
instruction it actually gave on the elements of a RICO
offense. One request was for a "good faith reliance"
instruction based on Weiner's claim that he hired Oreto at
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the direction of the bank president, a retired state probate
judge. The instructions on specific intent given by the
district court were sufficient; no separate "good faith"
instruction was required. See United States v. Dockray, 943
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F.2d 152, 154-55 (1st Cir. 1991). Two other instructions
sought, and refused, aimed to refine the extortion concept;
but one was potentially misleading and the other a comment
upon the evidence.3
Weiner's challenge to the RICO instruction is two-fold
and requires more discussion. Section 1962(c) of the RICO
statute makes it a crime to conduct or participate in the
conduct of the affairs of an enterprise affecting interstate
or foreign commerce "through a pattern of racketeering
activity or collection of unlawful debt." 18 U.S.C. 1962(c)
__
(emphasis added). The three predicate counts for which
Weiner was convicted each charged extortion, which is a
racketeering act under the statute. See 18 U.S.C. 1961(1).
___
Of these three counts, one count (the usurious loan to Wong)
involved an unlawful debt as well.
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3The requested charge that "demands for money alone are
simply not threats" could easily be misunderstood to mean
that something more need be demanded; and the further request
that "any anxiety experienced by the four debtors . . . could
be ordinary anxiety [of a debtor called upon to pay]" is a
comment on the evidence. The fact that these statements were
made by appellate courts in commenting on evidence in
particular cases does not convert them into required
instructions.
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The district court in this case instructed the jury that
RICO liability could be predicted upon a pattern of
racketeering activity or, alternatively, "upon the collection
of a single unlawful debt, i.e., the single loanshark debt
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owed by Wong." Weiner takes issue with the latter, quoted
portion of the instruction because, he says, section 1962(c)
requires a "pattern" of collection of unlawful debts, and
this precludes RICO liability on the basis of a single
instance of collection of an unlawful debt. The objection
was duly presented at trial. Although one might at first
think that the three extortion convictions automatically
showed a pattern and mooted the issue of statutory
construction, the government (correctly) makes no such
argument.4
We turn, then, to the construction of the statute. If
one focused only on section 1962(c)'s language and structure,
one might well read the phrase "pattern of racketeering
activity or collection of unlawful debt" and think that the
word "pattern" modifies "collection of unlawful debt" as well
as "racketeering activity." The imprecise wording of section
1962(c), together with the rule of lenity in construing
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4The "pattern" offense involves requirements of
connection between the offenses, which need not be described
here, but no such requirements exist if one unlawful debt
collection is enough. Under the "single debt" instruction
given by the court, it is possible (at least in theory) that
the jury could have made no finding of "pattern" at all and
relied solely on the Wong debt.
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criminal statutes, might favor the interpretation urged by
Weiner if our inquiry stopped with section 1962(c). But the
matter becomes more complicated, and the opposite result is
suggested, when other parts of the statute are consulted.
Section 1962(c), although the most commonly invoked
provision of RICO, is only one of four categories of
proscribed conduct. Subsection (a) in pertinent part
prohibits the use or investment in an enterprise of income
derived "from a pattern of racketeering activity or through
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collection of an unlawful debt." 18 U.S.C. 1962(a)
__
(emphasis added). Subsection (b) similarly makes it a crime
to acquire or maintain an interest in an enterprise "through
a pattern of racketeering activity or through collection of
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an unlawful debt." Id. 1962(b) (emphasis added). It is
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thus clear that the collection of a single unlawful debt is
enough under subsections (a) and (b). Weiner has suggested
no reason why Congress might have intended that a single act
of collection suffice as a source of criminal investment or
to gain an interest in an enterprise but that criminally
conducting the enterprise's affairs required multiple acts of
collection.
In addition, the term "pattern of racketeering activity"
is defined in section 1961's definitional provisions as
requiring at least two acts of racketeering activity
occurring within a specified period of time. 18 U.S.C.
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1961(5). But there is no counterpart definition of a
"pattern of collection of unlawful debt," as one would expect
if such a pattern were an element of one of RICO's core
provisions. Instead, section 1961 simply lists "unlawful
debt" which is defined as "a debt" incurred under certain
conditions, including usury. Id. 1961(6). This further
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confirms that section 1962(c) was unartfully drafted but must
be construed in pari materia with sections 1962(a) and (b).
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The three circuit courts to have considered this issue
have held that a single collection of an unlawful debt
satisfies section 1962(c)'s "collection of unlawful debt"
requirement. United States v. Giovanelli, 945 F.2d 479, 490
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(2d Cir. 1991); United States v. Vastola, 899 F.2d 211, 228
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n. 21 (3d Cir.), vacated and remanded on other grounds, 497
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U.S. 1001 (1990); United States v. Pepe, 747 F.2d 632, 645
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(11th Cir. 1984). Viewing the RICO statute as a whole, we
agree. See also H.J. Inc. v. Northwestern Bell Telephone
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Co., 492 U.S. 229, 232 (1989) (stating that "[e]ach
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prohibited activity is defined in 18 U.S.C. 1962 to
include, as one necessary element, proof either of `a pattern
of racketeering activity' or of `collection of an unlawful
debt.'").
Lastly, Weiner contends that the district court's
instruction on the type of participation required under
section 1962(c) is at odds with the Supreme Court's decision
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in Reves v. Ernst & Young, 113 S.Ct. 1163 (1993), a recent
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case decided after Weiner's trial. In Reves, the Court held
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that the phrase "to conduct or participate . . . in the
conduct" of the affairs of a RICO enterprise, as used in
section 1962(c), means that the defendant must have
participated in the "operation or management" of the
enterprise. 113 S. Ct. at 1170.
In this case the jury was instructed that "the terms
`conduct' and `participate' in the conduct of the affairs of
the enterprise include the intentional and deliberate
performance of acts, functions or duties which are related to
the operation or management of the enterprise." Weiner's
objection, as we understand it, is that the word "include" in
the instruction could suggest that lesser conduct fostering
the enterprise in any form is enough to convict. As this
objection was not made in the district court, we review for
plain error, see United States v. Georgacarakos, 988 F.2d
___ ______________ _____________
1289, 1294 (1st Cir. 1993), and we find none.5
Aside from the word "include," there is nothing in the
instruction nor in any other part of the court's charge which
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5Arguably, no waiver should be inferred, and no plain
error requirement imposed, where the Supreme Court's ruling
comes out of the blue and could not have been anticipated.
See Castringano v. E.R. Squibb & Sons, Inc., 900 F.2d 455,
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461 (1st Cir. 1990). Here, however, Reves resolved a split
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between circuits (apparently the First Circuit had not ruled
on the issue) so the objection could easily have been made at
trial.
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suggests that something less than involvement in the
operation or management of the enterprise will do. And to
the extent that the jury was given specific guidance, that
guidance precisely mirrored the "operation or management"
test subsequently approved in Reves. Plainly there was no
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"miscarriage of justice." Georgacarakos, 988 F.2d at 1297.
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We think that the district court should be commended for its
prescience.
III.
Because litigants stress only the material pertinent to
their claims on appeal, appellate courts normally receive a
series of snapshots of a case rather than the full canvass of
the trial. It may be true in Weiner's case that the evidence
showed only that he was loosely confederated with Oreto, and
true also that a low level of threat was employed in the
three debt collections connected to Weiner. But by their
very nature criminal conspiracies are masked, and veiled
threats are the hallmark of intelligent extortion. The
outcome here was within the bounds of reason.
Affirmed.
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