United States v. DeLutro, 214

Citation435 F.2d 255
Decision Date11 December 1970
Docket NumberNo. 214,Docket 34987.,214
PartiesUNITED STATES of America, Appellee, v. Cataldo Calegro DeLUTRO, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Irving Anolik, New York City, for defendant-appellant.

Edward M. Shaw, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. S.D.N.Y., Jack Kaplan, Asst. U. S. Atty., on the brief), for appellee.

Before WATERMAN, HAYS and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Cataldo Calegro DeLutro appeals from a judgment of conviction of violating the federal loansharking statute, 18 U.S.C. § 894, and the Hobbs Act, 18 U.S.C. § 1951. After a jury trial in the United States District Court for the Southern District of New York before Edmund L. Palmieri, J., appellant received concurrent eight year sentences and a $10,000 fine on each count. The only issue on appeal that requires extended discussion is whether conviction under the anti-extortion statutes cited above is barred if the victim denies at trial that any threats were made or that he was ever put in fear.

According to the facts, as the jury could have found them, that issue arises in the following context. DeLutro, a money lender, loaned one Leonard Horowitz a total of $42,000 in cash over a seven month period ending in the spring of 1969. Horowitz, an 80-year old New Yorker, needed the money for his failing fur business. The money was loaned at interest of four per cent a week, or 208 per cent per year.

In early May 1969, FBI agents questioned Leonard Horowitz and his brother Max about their relationship with DeLutro and obtained permission to install listening equipment at their business office to record a meeting with DeLutro. On May 12, Leonard Horowitz informed DeLutro's messenger that he was unable to make his full weekly payment. Predictably, this brought DeLutro over later that day to collect. A lengthy interchange ensued, first with Leonard alone and then with both brothers present. The entire conversation was recorded, and was watched by an FBI agent hidden a few feet away.

At trial, the Government played the tape of the conversation for the jury, and the FBI agent who saw the entire encounter testified as to defendant's physical actions. Leonard Horowitz was called to testify to the making of the loan and the accuracy of the May 12 recording, which he did. On cross-examination, however, Horowitz stated that DeLutro did not threaten him in the May 12 conversation and that he had not been fearful that violence would be used against him. He also agreed with defense counsel that his past relationship with DeLutro had been "cordial." Judge Palmieri thereafter permitted the Government to question Horowitz further on his state of mind at the time of the May 12 incident, since that door had been thrown wide open. Horowitz then denied that, when shown a picture of DeLutro, he had told FBI agents that DeLutro was "vicious" and that he (Horowitz) "could get killed" and that he had met DeLutro once without telling the FBI because he was afraid for his life and the lives of his family. Two FBI agents then testified that Leonard Horowitz had made precisely those statements to them in May 1969.1

Appellant claims that the evidence was insufficient as a matter of law because "some testimony-in-chief from a victim was essential to prove the corpus delicti of the crime, namely, the `use of extortionate means.'"2 Appellant has correctly singled out the key element in the case. Thus, Judge Palmieri charged the jury that the real issue was whether appellant had used "extortionate means" in collecting a payment due on the outstanding loan. The term, which appears in section 894 of Title 18, is defined in section 891(7) as

any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.

We do not agree that the only way of proving that there was "an * * * implicit threat * * * of violence" was by the testimony at trial of Leonard Horowitz. If that were so, then the purpose of the statute could easily be nullified by terrorizing the victim. However, this does not relieve the Government of the necessity of proving its case. Obviously, it must still present legally admissible evidence that the prohibited threats were made. But it did that here. Except for the constitutional point briefly discussed below, the recording of the conversation between DeLutro and Leonard and then Max Horowitz was clearly admissible in evidence.3 So was the testimony of Agent Seneff, who observed Horowitz's actions and demeanor. While the evidence was...

To continue reading

Request your trial
17 cases
  • State v. Kish
    • United States
    • Supreme Court of Connecticut
    • April 27, 1982
    ...is apparent that the victim's husband was equally available to both parties; in fact, he was in the courtroom. See United States v. DeLutro, 435 F.2d 255, 257 (2d Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971) (court properly refused unfavorable inference instr......
  • United States v. Natale
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 28, 1975
    ...under this statute even where the person threatened has denied at trial that he was put in fear by the threat. United States v. DeLutro, 435 F.2d 255 (2d Cir.1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971). The approach chosen by the trial judge, to define the word "......
  • U.S. v. Dennis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 29, 1980
    ...v. Nakaladski, 481 F.2d 289, 297-99 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973); United States v. DeLutro, 435 F.2d 255 (2d Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 Dennis argues that the magistrate had to be informed of Yingling......
  • United States v. Cerone
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 28, 1972
    ...of his fear may be presented as a means of demonstrating a witness' bias, thereby tending to discredit him. United States v. DeLutro, 435 F.2d 255, 256-257 (2d Cir. 1970); United States v. Schennault, 429 F.2d 852, 855 (7th Cir. 1970). As for defendants' argument that they were prejudiced b......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT