at Cosmo, informed him that Anthony had telephoned, and ordered him into the house. Redding also asked Cosmo if he had the $5,000 he owed to Anthony. When Cosmo asked Redding what he was talking about, Redding warned Cosmo that "he better come up with the money or he knew what would happen". Redding then beat Cosmo with the rifle butt rendering him unconscious. Upon awakening the next day, Cosmo was taken by a partner of Anthony's, Alfredo, to a house located in Longport, New Jersey, owned by the parents of Anthony's girlfriend. As Cosmo entered the house, he heard Anthony DiPasquale from a floor above shouting that he was going to make an example of Cosmo, and that "he's [Cosmo] got to go". Anthony then cocked his gun and started down the steps to where Cosmo was being held. At this point, Cosmo thought that he was going to be killed. Holding the gun to Cosmo, Anthony demanded money, and Cosmo not denying the debt, said he would borrow it as soon as possible. When Anthony warned that Cosmo's family would be in danger if he did not pay Anthony $5,000, Cosmo telephoned several people attempting to raise money. Apparently satisfied with Cosmo's promise to pay, Anthony directed that Cosmo be taken back to the farm and released. Two days later, when Cosmo had collected the $5,000, Anthony was notified and within fifteen minutes, arrived at Cosmo's house to pick up the cash.
The second incident occurred in November, 1979, when Cosmo received a telephone call from Anthony inquiring whether Cosmo had the $2,500 he owed to Anthony. Consistent with the September extortion, Anthony warned Cosmo to "get the money or else". Despite the fact that he did not owe any money to Anthony, Cosmo told him he would get it in a few days. Again Cosmo borrowed the money, and upon notification by telephone of this fact, Anthony again came to Cosmo's house to pick it up.
The third incident, the one described in count I of the indictment, occurred a few weeks later, in mid-December, 1979. Cosmo received a telephone call from Anthony inquiring whether Jimmy Minnick still installed carpet for his livelihood and whether Cosmo still worked for him. When Cosmo responded in the affirmative, Anthony said he needed carpet for his basement and asked Cosmo to make the necessary arrangements for its installation. Cosmo said he and Minnick would stop by to measure the area, discuss the type of carpet to be installed, and quote a price for the job. This Cosmo did without incident. The next morning when Cosmo and his employer arrived at Anthony's house to install the carpet, a group of men including defendants Anthony DiPasquale and August Redding, were playing cards. Later in the morning when Cosmo went to leave to take his car to his wife, he was stopped at the door by Redding who hit him, knocking him to the floor. As Cosmo lay there, he was kicked and punched by Redding, and then hit by Anthony in the side of the head with a fireplace poker. Anthony continued to beat Cosmo with the poker finally rendering him unconscious. When Cosmo awoke in the basement of the house, he was handcuffed to a pinball machine. Anthony was at the top of the stairs shouting that if Cosmo did not have "the money" he would die. Cosmo then agreed to borrow money to pay Anthony. Beaten and bloodied, Cosmo went to leave the house only to be stopped by Victor Szwanki who beat him again.
Soon thereafter, Cosmo was released eight blocks from his house with a towel over his head. As a result of this beating, Cosmo was hospitalized for three or four days. Upon his release from the hospital, however, Cosmo again borrowed the money from a family member and paid Anthony.
The final beating occurred in January, 1980, when Cosmo was installing a ceiling with relatives in his home. Visited there by James DiPasquale, Victor Szwanki, and two others, Cosmo was taken to a back room and blamed by James DiPasquale for causing his brother to "go away". James DiPasquale then demanded $25,000 from Cosmo saying he owed it to Anthony. When Cosmo told them he did not owe any money to Anthony, James DiPasquale and Victor Szwanki beat and choked him giving as an excuse that because of him Anthony was in jail.
Despite warnings from his assailants not to go to law enforcement authorities, Cosmo reported the incident to police after being pressured to do so by his family. Shortly thereafter, Cosmo received a telephone call from James DiPasquale informing Cosmo that because he went to the police, he was going to be killed. Cosmo was beaten severely on three occasions, paid thousands of dollars to Anthony DiPasquale, and testified he still feared for his life.
The second victim, James Kolzer, also was involved in a drug selling relationship with Anthony DiPasquale. The relationship began when Kolzer loaned Anthony $10,000 in December, 1980, to enable him to purchase chemicals to manufacture methamphetamine. After a failed manufacturing attempt, Anthony finally was successful in producing a large quantity of the drug. Despite a split of the proceeds in accordance with an agreement, Anthony insisted that Kolzer owed him $8000. As a result of Kolzer's having denied owing Anthony money and rather, stating that it was Anthony who owed money to him, the methamphetamine partnership between Kolzer and Anthony DiPasquale terminated. Kolzer's next contact with any of the defendants was in early February, 1981, when he received a telephone call from August Redding. Redding said he was calling at the direction of Anthony DiPasquale who had been arrested and needed $8000 to get out of jail. Repeating his position from the December incident, Kolzer told Redding that Anthony owed Kolzer money and that he had no money for Anthony. Kolzer paid neither Redding nor Anthony DiPasquale on this occasion. In March, 1981, after discussing a renewal of the drug sales partnership with Anthony, Kolzer received a telephone call from Anthony directing him to meet Anthony at a Sunoco station in Philadelphia at 11:00 P.M. that evening. Thinking he was back in business with Anthony, Kolzer drove to the service station and there met Anthony DiPasquale and Victor Szwanki. Anthony entered Kolzer's car and directed him to drive to an auto body shop which was owned by Joseph West. When they finally gained access to the body shop,
Anthony told Kolzer to reach under a car in the shop to retrieve a bag which Anthony said he put there for Kolzer. Discovering that the bag was empty, Kolzer stood up and turned to see Anthony and Szwanki with guns drawn. Szwanki then searched Kolzer, tied his hands behind his back, forced him to kneel, and placed a bag over his head. Kolzer's hands and feet were tied together and he was hit repeatedly in the back and head with a pipe. Despite claiming Kolzer owed $8,000, Anthony said it would cost more for Kolzer to get out of the body shop alive. First kneeling and then hung upside down on a chain attached to a hook, Kolzer was kicked and beaten continuously throughout the night. He was burned with a paint-drying lamp. During the beating, Kolzer was interrogated as to how he was going to raise the money and threatened with death. Though not admitting that he owed any money, Kolzer said he would telephone friends and relatives to get commitments for money.
At dawn apparently satisfied with Kolzer's efforts to raise $12,000 to $15,000, Anthony washed the blood from Kolzer and bandaged his face and hands. Anthony then ordered West to photograph Szwanki with his arm around Kolzer's shoulder. Kolzer was then taken from the body shop, first to a bar to make more telephone calls, and then to a row house where he heard Anthony and Szwanki talking about killing him. Instead of suffering that fate, Kolzer was taken to a Western Union office to pick up money wired to him from his son. After giving the money to Szwanki, Kolzer was taken to yet another bar to meet a relative who had gathered money for him pursuant to his telephone requests. When the money was given to Anthony, Kolzer was told he was free to leave. Anthony then kissed him, told Kolzer he was a "hell of a man," and that he had taken a "hell of a beating." Szwanki merely shook hands with Kolzer and laughed. Kolzer went home and then to the hospital, telling his family and physician he had been mugged at the train station in Trenton, New Jersey. Kolzer testified he had lied about the cause of his injuries because he was afraid of Anthony who had warned him of the consequences of telling the truth.
The third victim, Swain Crawford, was a used car salesman at John's Chevrolet, a Philadelphia automobile dealership which was owned by John and Peter Serubo. Crawford testified that on May 9, 1981, he left the building where he worked and went to the new car showroom to pick up his paycheck. After getting his check, Crawford saw Anthony DiPasquale
who told Crawford to go to John Serubo's office. In the office Crawford found John and Peter Serubo, Anthony DiPasquale, and an unidentified "burly" man. Soon after Crawford was told to sit down, Anthony DiPasquale punched him in the side of the head and asked why he had taken money from Peter Serubo. While John and Peter Serubo watched, Anthony continued to hit Crawford, eventually smashing a whiskey bottle over Crawford's head. Then, Peter Serubo told Crawford he owed $1800 to the Serubos. When Crawford denied owing the money, Anthony DiPasquale put a gun to Crawford's head. With the gun so aimed, Crawford telephoned a friend in an effort to raise the money.
Crawford's friend said she did not have the money and that she would have to telephone downtown to get it. Peter Serubo then directed the burly man to "get the old man," who Crawford identified as defendant Nicholas Fidelibus. When Fidelibus arrived at John Serubo's office and learned of the situation, he said they should break Crawford's legs and shoot him. At Anthony DiPasquale's direction, however, Crawford was taken by Fidelibus and the burly man to Joe West's auto body shop, the situs of Kolzer's beating. There, Crawford was given coffee, informed of several beatings administered at the body shop by Anthony DiPasquale, and told that he had nothing to worry about if he paid the money. Crawford then telephoned his friend again who told him she had a diamond ring valued at $1800. Crawford told this to Fidelibus who telephoned John Serubo to transmit the information. Upon finishing his conversation with John Serubo, Fidelibus announced they were going to get the ring. Crawford and Fidelibus obtained the ring and returned to John Serubo's office. Inspecting the ring, Anthony DiPasquale announced that if the ring was not worth $12,000, it was not worth Crawford's life.
Anthony then gave the ring to Peter Serubo and said that Crawford would return on Monday, May 11, 1981, with the $1800. As Crawford was released, he was warned by Anthony DiPasquale not to go to the police. Crawford did in fact return on May 11, 1981, with the money. He went to Peter Serubo's office and there found Peter Serubo and Hank Brown, the comptroller of John's Chevrolet. The three men then went to Brown's office and met John Serubo. Crawford paid the $1800 to the Serubos and the diamond ring was returned to him. Then, Peter Serubo asked Brown whether John's Chevrolet owed any commissions to Crawford. After Brown responded there was $200 due, Peter Serubo directed Brown to draw a check for $200 to Crawford who was in turn directed to endorse the check and give it back to John Serubo as payment to Anthony DiPasquale for collecting the $1800. Crawford testified that he did not owe the Serubos any money and that he did not go to the police because he feared for his life.
The last incidents about which testimony was received were neither listed in the indictment as substantive violations nor as overt acts committed in furtherance of the conspiracy. Because both occurred within the time period of the conspiracy alleged by the Government and were incidents similar in kind to those involving Messrs. Cosmo, Kolzer, and Crawford, they were admitted into evidence as further proof of the conspiracy.
Francis Rosetti operated an automobile body shop and repair service in Philadelphia. On occasion, Mr. Rosetti purchased automobile parts from John's Chevrolet for use in his business. A few days after the Crawford incident,
John Serubo came to Joe West's body shop inquiring as to the whereabouts of Anthony DiPasquale. After West replied that Anthony was at home, he and Serubo left the body shop in separate cars and drove to Anthony's house. West, Serubo, and Anthony DiPasquale then got into Serubo's automobile and drove to a house on a back road in Bensalem, Pennsylvania. Anthony DiPasquale knocked on the door and spoke to a pregnant woman. When Anthony returned to the car, he commented that the woman had said Frannie did not live there anymore. As they drove back to Anthony DiPasquale's house, Anthony said they would get hold of Rosetti at his garage the next day. The following day, Anthony DiPasquale came to Joe West's body shop and said he was going to John Serubo's to find out how much money Rosetti owed to the Serubos. Shortly thereafter, Anthony returned with photocopies of bills evidencing Rosetti's debt to John's Chevrolet for auto parts and said to West, "Lets take a ride." They then drove to Rosetti's garage, found him, and went to a back room to discuss the debt. Rosetti immediately started to yell asking why they had scared his wife the day before. Anthony told Rosetti to shut up and that he owed money to John's Chevrolet. Despite Rosetti's assertion that he already had paid John's Chevrolet, Anthony said he was there to collect the money. Anthony DiPasquale and Joe West left Rosetti's garage without incident. A few days later, West attended a meeting in Peter Serubo's office with Peter and John Serubo, Anthony DiPasquale, Francis Rosetti, and Rosetti's business partner. After considerable discussion, Rosetti agreed to pay the Serubos $5000 and they gave him two days to do so. Throughout the meeting Anthony DiPasquale and Rosetti yelled at each other regarding Anthony's visit to Rosetti's house. As the meeting ended, Anthony said to Rosetti, "next time it won't be so friendly." On the day payment was to be made, Anthony DiPasquale telephoned West and directed him to pick him up in West's car. West complied and they drove to Rosetti's house in Bensalem. At Anthony's direction, West knocked on the door and was given by Rosetti and his wife an envelope containing $5000 in cash. West gave the envelope to Anthony who counted out one half of the money, $2500, put it in his pocket, and directed West to give the rest to Peter and John Serubo. West did this after Anthony DiPasquale telephoned the Serubos to inform them that West would be there shortly with the money.
Mark Courtney was a salesman for a company which customized vans and a former sales manager for John's Chevrolet. In his position with the van company, Courtney dealt with John's Chevrolet and the Serubos. When employed at John's Chevrolet, Courtney had been introduced to Anthony DiPasquale by John Serubo who referred to Anthony as the man who took care of their problems. On June 3, 1981, John Serubo telephoned Courtney, told him that someone was at the car dealership interested in exporting a large quantity of customized vans and that Courtney should come there as soon as possible. Thinking that John Serubo was speaking of a profitable business venture, Courtney drove to John's Chevrolet and went to Peter Serubo's office where he found John and Peter Serubo, Anthony DiPasquale, Victor Szwanki, and another person. Peter Serubo told Courtney that John's Chevrolet was paying too much money for customized vans and that a rival dealership paid less. When Courtney explained that the difference in price was due to the increased volume of business done by the rival dealership, Anthony DiPasquale hit him over the right eye with a half full whiskey bottle. Courtney was hit repeatedly by Anthony while Peter Serubo screamed that Courtney owed them $5000 because of the price differential for vans charged John's Chevrolet and the rival dealership. Anthony DiPasquale then took $300 from Courtney's wallet as payment for the "debt" collection and took him to the bathroom to wash off the blood on him from the beating. When Courtney returned to Peter Serubo's office, he was asked how he was going to get the money which Peter Serubo demanded by the next day. Courtney then left John's Chevrolet and telephoned his employer for the money.
The next day, Courtney returned to John's Chevrolet and gave the $5000 to Mr. Brown, the comptroller. Courtney further testified he did not go to the police because he would have been killed by one or more of the defendants.
Defendants contend I erred in not granting their pre-trial and mid-trial motions for relief from prejudicial joinder and severance. In their pre-trial motions, defendants first argued there had been a misjoinder of offenses and defendants under Fed. R. Crim. P. 8 because the facts alleged in the indictment revealed multiple conspiracies rather than the single conspiracy charged. Second, defendants moved for severance under Fed. R. Crim. P. 14 contending that because much of the Government's evidence focused on the acts of Anthony DiPasquale, the lead defendant who was charged in all counts of the indictment, they would be prejudiced by a spillover of evidence to them. In essence, they argued that the jury would not be able to compartmentalize the evidence as to each defendant.
There was no error in my refusing defendants' motions.
Federal Rule of Criminal Procedure 8 states in its entirety:
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
A motion alleging misjoinder under Rule 8 is addressed to the pleadings. Schaffer v. United States, 362 U.S. 511, 514, 4 L. Ed. 2d 921, 80 S. Ct. 945 (1960); United States v. Somers, 496 F.2d 723, 732 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974). Furthermore, the Third Circuit has been consistent in finding that the good faith allegation of a single conspiracy satisfies the mandate of Rule 8 as it provides a common link between defendants and offenses. United States v. Somers, supra, 496 F.2d at 729-30. See also United States v. Bloom, 78 F.R.D. 591, 612-13 (E.D. Pa. 1977) (citing Somers). Here, although not all named in each count of the indictment, each defendant was charged with having collected a debt by use of extortionate means in violation of 18 U.S.C. § 894(a), and conspiracy to do so. Therefore, they were charged with offenses "of the same or similar character . . . [or with acts] connected together or constituting parts of a common scheme or plan," Fed. R. Crim. P. 8(a), and accordingly, the offenses were properly joined in the same indictment. As to joinder of defendants under Rule 8(b), notwithstanding that the defendants steadfastly contended the indictment charged multiple conspiracies, there was no allegation the Government had acted in bad faith in drafting the indictment. Furthermore, to accept defendants' argument at the pretrial stage would have required me to prejudge the Government's evidence. Therefore, the defendants were properly joined pursuant to Rule 8(b) and I did not err in so ruling.
The court may grant a severance [pursuant to Fed. R. Crim. P. 14] when the defendant can show that the jury could not reasonably be expected to "compartmentalize" the evidence as it relates to him. United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971), and that the failure to sever clearly and substantially prejudices him to the point of depriving him of a fair trial. United States v. Reicherter, supra, 647 F.2d 397. Where the Government charges multiple defendants with a single conspiracy, the interests of judicial economy usually favor a single trial. United States v. Jackson, 649 F.2d 967 (3d Cir. 1981). The possibility that evidence will be admissible against some but not all defendants does not require severance. United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176 (1972).