APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (NEWARK) (D.C. Crim. No. 74-165).
Gibbons, Hunter and Maris, Circuit Judges.
Benito DeGaetano and James Sheehan were convicted by a jury on all eight counts of an indictment charging them with conspiracy to use extortionate means to collect extensions of credit in violation of 18 U.S.C. § 894*fn1 (Count I), making extortionate extensions of credit in violation of 18 U.S.C. § 892*fn2 (Counts II, III, IV, and VII), and using extortionate means to collect or attempt to collect extensions of credit in violation of 18 U.S.C. § 894 (Counts V, VI, and VIII). Because of the insufficiency of proof and an improper charge connected with Counts I, VII, and VIII, we must vacate and remand appellants' convictions on those counts. We must also vacate and remand the convictions on all the counts charging the making of extortionate loans (II, III, IV, and VII), since the court in its charge on those counts improperly deprived the jury of its fact-finding role. We find no error, however, in the convictions on Counts V and VI (using extortionate means to collect extensions of credit) and affirm the judgments of conviction on those counts.
Because the questions on appeal deal principally with the sufficiency of proof and the relation between the court's charge and the evidence, a fairly detailed consideration of the indictment and the evidence is required. On May 16, 1974, DeGaetano and Sheehan were indicted for violations of 18 U.S.C. §§ 2, 892, and 894. Also charged in the same indictment was one Carlo Benedetto. Benedetto was never apprehended, and the charges against him were severed at the Government's request on February 3, 1976.
Count I of the indictment charged defendants with conspiring to use extortionate means to collect extensions of credit from John Massaro and Ronald Puczilowski. Counts II, III, and IV charged the making of extortionate loans to Massaro. Counts V and VI charged the use of extortionate means to collect loans from Massaro. Count VII charged an extortionate extension of credit to Puczilowski and Count VIII the use of extortionate means to collect a loan from Puczilowski. The testimony with respect to the Massaro transaction differed greatly from that dealing with the Puczilowski loan, in that there was no evidence directly linking DeGaetano and Sheehan to the latter transaction.
John Massaro testified that he was in a financial bind in the summer of 1971. A friend told him that he could obtain a loan from Sheehan and DeGaetano. Accordingly, Massaro went to Budget Auto Sales in Passaic, New Jersey, where he found Sheehan, DeGaetano, and "Rocky" Benedetto. He borrowed $600 on which he agreed to pay "vig" - interest - of five dollars per hundred per week. Thus, Massaro was paying thirty dollars a week interest on the $600 loan.
A few weeks later, Massaro said, he borrowed an additional $400 and began paying an additional twenty dollars a week in "vig." In August, 1971, Massaro obtained a third loan, this time for $500, to be repaid within a week, together with another twenty-five dollars a week interest.
Massaro testified that he could not keep up the interest payments, so he began stalling the three defendants. He wrote them a check, but it bounced. When the three began to press him, he began to "move around" to avoid them. He arranged to have his sister pay the $500 immediately due. Thinking "everything was cool," Tr. at 40, Massaro went home again. Sheehan, DeGaetano, and Benedetto arrived at his home and escorted him outside, away from his wife. Benedetto was carrying a pistol. They threatened Massaro and DeGaetano punched him in the head.
In October, Massaro said, his sister finally obtained the $500, and Massaro once again began meeting his interest payments. But in December, he again fell short. When he went to Budget Auto Sales to explain, Benedetto, in the presence of Sheehan and DeGaetano, "smacked [Massaro] around a few times." Tr. at 44-45.
Massaro said that in early 1972, he went to jail for writing bad checks. Until December of 1972, when he left jail, no payments were made to Benedetto, DeGaetano, or Sheehan. At that time, he called Benedetto and promised to make good on the loan. While in jail, however, Massaro had contacted the FBI, precipitating the investigation that led to this indictment.
Patricia Ann Park, who was married to Massaro during the time in question, testified that Benedetto, Sheehan, and DeGaetano showed up at the Massaro home at least once a week during the summer and fall of 1971, looking for Massaro. Sheehan also went often to the cocktail lounge where Park worked as a barmaid, hoping to catch Massaro. They repeatedly told her that Massaro had better come up with the money. Several times, Park called Budget Auto Sales and tried to explain to Benedetto that Massaro needed more time.
On one occasion in early 1972, Park returned home from work to find Sheehan and DeGaetano ransacking her house. They made threats against Massaro, and DeGaetano struck Park.
Thereafter, Park divorced Massaro. She testified, though, that in 1973 DeGaetano entered her new home, uninvited and in the presence of her new husband, and demanded to know where Massaro was. DeGaetano told her that he wanted Massaro to pay up.
Ann D'Amore was a friend of Park. She testified that in 1971 and 1972 she was living in the Massaro home in return for performing housecleaning and babysitting services for Park. She also testified that during September, October, and November of 1971, Sheehan and DeGaetano visited the Massaro home almost every day, seeking Massaro. She was present the night Sheehan and DeGaetano ransacked the house and confirmed Park's story about being ...