U.S. v. Cassano, 96-3253

Decision Date08 January 1998
Docket NumberNo. 96-3253,96-3253
Citation132 F.3d 646
Parties11 Fla. L. Weekly Fed. C 971 UNITED STATES of America, Plaintiff-Appellee, v. John CASSANO, Joseph Forlizzo, Anthony Lanza a.k.a. Pee Wee, Nicholas J. Musto a.k.a. Nicky, Biagio Riguardi a.k.a. Bratsee, and Michael Zampardi, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Raymond C. Miller, Miller & Williams, Ft. Lauderdale, FL, for Cassano.

Daniel L. Castillo, Tampa, FL, for Musto.

Michael L. Macklowitz, Gino Josh Singer, New York City, for Lanza.

Lewis E. Garlisi, Tampa, FL, for Zampardi.

Bennie Lazzara, Jr., Lazzara & Paul, P.A., Tampa, Fl, for Forlizzo.

W. Thomas Wadley, St. Petersburg, FL, for Riguardi.

Tamra Phipps, Linda Julin McNamara, Assts. U.S. Attys., Tampa, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit Judge.

HULL, Circuit Judge:

Appellants John Cassano, Jr., Joseph Forlizzo, Anthony Lanza, Nicholas J. Musto, Biagio Riguardi, and Michael Zampardi were charged in a multiple count indictment with, inter alia, conspiracy to collect an extension of credit through extortionate means and collecting an extension of credit through extortionate means, both in violation of 18 U.S.C. § 894. Appellants were convicted on the conspiracy count. Appellant Cassano also was convicted of collecting an extension of credit through extortionate means. This appeal followed with Appellants' asserting numerous errors and adopting portions of each co-Appellant's brief.

After review, we find all errors 1 asserted on appeal lack merit. We discuss only whether the government's evidence showed an "extension of credit" under 18 U.S.C. §§ 891, 894 and whether the district court properly denied Appellant Musto's motion for severance and requested jury instruction.

I. FACTS

The evidence at trial was sufficient to show that all Appellants participated in the conspiracy and employed extortionate means in violation of 18 U.S.C. § 894. Each Appellant's conduct is not enumerated because the main issue discussed requires only the facts necessary to determine whether the transactions here involve an "extension of credit" under §§ 891 and 894.

A. The Ball Transaction

Rick Forlizzo, the brother of Appellant Joseph Forlizzo, requested that accountant Wesley Earl Ball help hide money from Rick's ex-wife. Rick Forlizzo accepted Ball's advice to place the money in an off-shore annuity account. Unbeknownst to Rick Forlizzo, Ball misappropriated a portion of the money for personal use. Before Ball could replenish the account, Rick Forlizzo requested that Ball return the money. Ball informed Rick Forlizzo that the money was tied up and that Ball did not have the necessary paperwork to obtain the money.

Rick Forlizzo believed Ball's representations and tacitly agreed to wait to collect until Ball received the paperwork. Thereafter, Appellant Joe Forlizzo requested that Appellant Cassano obtain the money from Ball. During a subsequent meeting between Ball and Appellants Cassano and Zampardi, Cassano yelled and cursed at Ball and inquired whether Ball was going to procure the paperwork necessary to obtain Rick's money. Ball emerged from the meeting shaken. Later, Rick Forlizzo threatened to have Ball killed and Ball agreed to repay the money.

B. The Muzio Transaction

Rick and Joe Forlizzo formed American Mobile Imaging ("AMI") with Michael Muzio. Joe Forlizzo later suspected Muzio of stealing from AMI. Contemporaneously, Muzio discussed buying Joe's interest in AMI. Joe Forlizzo accepted Muzio's offer, under which Muzio forwarded to Joe $500,000 in cash, a consulting contract worth $192,000, and accounts receivable worth $267,576. Muzio paid Joe Forlizzo $25,000 when the buy-out agreement was signed.

When the second installment of $125,000 was due, Appellant Joe Forlizzo and others told Muzio that the buy-out agreement was no longer effective and that Joe Forlizzo and others still owned the controlling interest in AMI. They fired Muzio as CEO of AMI and had Muzio evicted. Muzio formed a new business which competed with AMI.

At this point, Appellants Cassano, Forlizzo, Musto, Lanza, Riguardi, and Zampardi planned and engaged in extortionate efforts to collect from Muzio. Initially, Muzio asserted he had mafia connections in New York. Appellants delayed collection from Muzio while Appellant Lanza investigated Muzio's representations, which proved to be false.

Ultimately, Appellants forced Muzio to relinquish his interest in AMI. Muzio reluctantly relinquished his interest in AMI, worth approximately $4 million, for $100, which Muzio never received. Appellants also forced Muzio to release $100,000 in certificates of deposit and to pay the balance on a credit card bill. Additionally, Appellants attempted to force Muzio to refer all of his new business to AMI. Appellants became frustrated by their inability to collect from Muzio and with Muzio's failure to refer business to AMI. Appellants finally concocted a scheme to kill Muzio and to loot Muzio's assets before his planned death was discovered.

C. Appellant Musto

At the close of the government's evidence at trial, Appellants moved for judgments of acquittal. The district court denied the motions. Appellant Musto announced his intention to rest without presenting any evidence. Appellant Musto requested the district court to sever his trial and later asked for an instruction directing the jury to consider against Appellant Musto only evidence presented during the government's case-in-chief. 2 The district court denied Appellant Musto's requests. Although the co-defendants presented evidence, Appellant Musto's counsel never presented evidence or cross-examined any further witnesses.

II. DISCUSSION
A. Extension Of Credit Under 18 U.S.C. §§ 891 And 894

Appellants were convicted of conspiring to collect and collecting extensions of credit through extortionate means in violation of § 894(a)(1), which states:

(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 ...

shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.

18 U.S.C. § 894(a)(1). Section 891 provides that an "extension of credit" includes any agreement, tacit or express, to defer the repayment or satisfaction of any debt or claim, as follows:

To extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred.

18 U.S.C. § 891(1).

Although directed primarily at loan-sharking and organized crime, § 894 is not limited to that conduct or traditional loans. See Perez v. United States, 402 U.S. 146, 147, 91 S.Ct. 1357, 1358, 28 L.Ed.2d 686 (1971); United States v. Roberts, 546 F.2d 596, 597 (5th Cir.1977). 3 "The breadth of the [statute's] language reflects Congress's desire to craft a flexible set of tools for prosecutors...." United States v. Scotti, 47 F.3d 1237, 1244 (2d Cir.1995) (quoting H.R. Conf. Rep. No. 1397, 90th Cong., 2d Sess. 31, reprinted in 1968 U.S.C.C.A.N.2021, 2029); see also United States v. Stauffer, 922 F.2d 508, 512 (9th Cir.1990); United States v. DiPasquale, 740 F.2d 1282, 1288 (3d Cir.1984).

Although this circuit has not addressed the issue here, other circuit courts have recognized an "extension of credit" arising from deferment of payments on not only legitimate investments, joint ventures, checks and credit cards, but also on gambling debts, embezzled money, and even missing drugs or drug proceeds. See, e.g., United States v. Goode, 945 F.2d 1168, 1170 (10th Cir.1991) (civil judgment); United States v. Lopez, 803 F.2d 969, 974-75 (9th Cir.1986) (bad checks); United States v. Polizzi, 801 F.2d 1543, 1557 (9th Cir.1986) ("debtor" swindled "creditor" on surplus TV deal); United States v. Natale, 764 F.2d 1042, 1045 (5th Cir.1985) (an investment or joint venture); United States v. McMahan, 744 F.2d 647, 650 (8th Cir.1984) (check); DiPasquale, 740 F.2d at 1288 (claimed debt); United States v. Brinkman, 739 F.2d 977, 983 n. 5 (4th Cir.1984) (royalty payments); United States v. Bufalino, 576 F.2d 446, 452 (2d Cir.1978) (stolen jewels); United States v. Czarnecki, 552 F.2d 698, 703 (6th Cir.1977) (gambling debt); United States v. Totaro, 550 F.2d 957, 958 (4th Cir.1977) (checks); Roberts, 546 F.2d at 597 (gambling debts); United States v. Andrino, 501 F.2d 1373, 1377 (9th Cir.1974) (debts incurred playing cards); United States v. Annerino, 495 F.2d 1159, 1166 (7th Cir.1974) (unauthorized use of credit cards and theft of partnership funds); United States v. Bonanno, 467 F.2d 14, 16-17 (9th Cir.1972) (money to purchase drugs subsequently lost). These circuit courts construe an "extension of credit" under §§ 891 and 894 broadly to encompass any agreement, express or tacit, to defer the repayment or satisfaction of a claim or debt. 4

1. The Ball Transaction 5

Our analysis of the Ball transaction begins with the Fifth Circuit's decision in United States v. Natale, 764 F.2d 1042 (5th Cir.1985), because it involves similar facts. Like Rick Forlizzo, the Natale defendant gave money to an associate for investment. After time passed, the defendant demanded his money back, but then gave his associate ten days to repay before threatened actions began. Subsequently, the defendant used extortionate means to collect his money.

On appeal, the Natale defendant asserted that there was no "extension of credit" because he recouped only an investment. The Fifth Circuit agreed that the defendant made an "investment" or "joint venture," but held that "[t]he interpretation of the initial agreement does not, however, resolve the question of whether there was an 'extension of credit.' In...

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