United States v. Tortora
| Decision Date | 24 July 1972 |
| Docket Number | 72-1170.,No. 496,642,Dockets 71-2114,496 |
| Citation | 464 F.2d 1202 |
| Parties | UNITED STATES of America, Appellee, v. John TORTORA, Appellant. UNITED STATES of America, Appellee, v. Samuel SANTORO, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
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Stephen J. Sundvold, Atty. (Henry E. Petersen, Asst. Atty. Gen. and Sidney M. Glazer, Atty., Dept. of Justice, Washington, D.C., on the brief), for appellee.
Irving Anolik, New York City, for appellant Tortora.
Irving Anolik, New York City, of counsel to Lanna, Coppola & Rosato, Yonkers, for appellant Santoro.
Before CLARK, Associate Justice,* LUMBARD and KAUFMAN, Circuit Judges.
Samuel Santoro and John Tortora were found guilty after a jury trial in the Southern District on fifteen counts of engaging in loanshark operations in violation of the federal Extortionate Credit Statute, 18 U.S.C. §§ 892-94, and on one count of conspiring so to do.1 We affirm.
Appellants seek reversal of their convictions on several grounds, principal among them being Santoro's claim that his trial could not proceed in his absence.
The indictment charged that Santoro and Tortora, along with Joseph Chiaverini, Gene Genaro and Nicholas Ratteni, lent money to Joseph Formiglia although they had reasonable grounds to believe that the money would be used by Formiglia to make extortionate loans. It further charged that they had used extortionate means to collect the money loaned to Formiglia.
The scheme began in November 1969 when Formiglia, a jeweler, borrowed $400 from Santoro, promising to pay $40 a week interest until the $400 principal was repaid. Shortly after this first loan was made Formiglia wanted additional money, but did not want to borrow it under his own name. Thus he conceived the idea of borrowing from Santoro on the pretext that he himself was relending the money at usurious rates. Beginning in early December 1969, Santoro made additional loans to Formiglia, amounting to approximately $11,000 by the middle of February 1970. Tortora frequently was present when these loans were made. Ratteni was present at two of the transactions.
By late February 1970, Santoro suspected that Formiglia was not actually relending the money. Chiaverini was delegated to go with Formiglia on his next collection date to visit his "customers." When Formiglia protested that his customers might not like this arrangement, Santoro said, "We'll go around and collect the f____' money or we'll break their heads if they don't pay us."
Formiglia feigned sickness on the collection date, but this merely confirmed Santoro's suspicions that Formiglia's customers were nonexistent and that the "loans" were only a pretense to cover Formiglia's own borrowing. Santoro met with Formiglia and threatened to split Formiglia's tongue or put a "bullet through his head" unless the money was repaid.
A few days later Tortora went to the jewelry store where Formiglia worked and told him, "My man, you are in a lot of trouble . . . what are you going to do about these f____ loans." No arrangements for repayment were made, however. Later that day Santoro telephoned Formiglia, who said that he was going out of town, whereupon Santoro replied, "Have a good time because it's your last trip." The next week Tortora went to Formiglia's store and told him to show up at a meeting at Genaro's fish market regarding repayment of the loans or Tortora would "drag him up by his head."
Frightened by these threats, Formiglia called the Yonkers Sheriff's office and was instructed to telephone Tortora and delay the meeting one day. The Sheriff's office then recorded the conversation.
Wearing a hidden tape recorder supplied by the Sheriff's office, Formiglia met with Tortora the following day at the fish market. Tortora accused Formiglia of juggling the loans and suggested that to repay the loans Formiglia might have to rob a store. Tortora then telephoned Santoro and put Formiglia on the line. Santoro said that if Formiglia did not pay he would break Formiglia's wife's head and burn down his house. Tortora then told Formiglia that he better work out a deal to repay the money.
The next day Formiglia arranged to go to Santoro's house, ostensibly to repay the loans. He brought with him money supplied by the Westchester County District Attorney's Office. After Formiglia had been in the house a short while, investigators from the District Attorney's Office entered and arrested Santoro with his hands on the money. Tortora was later arrested by the FBI.
Both Santoro and Tortora pleaded not guilty to the indictments in January 1971 and were released on bail. The case was called for trial on April 15, 1971. At that time Judge Pollack was advised that the attorney for the government had trial commitments in May, and that the attorney for Ratteni also had trials during May and another set for June 21. Additionally, a government agent assigned to the case was unavailable between July 17 and July 24.
Santoro was then in court with Peter Rosato, a partner of Santoro's retained counsel, Vincent W. Lanna. Rosato told the court that Lanna was then on trial in a state criminal case which would take until the middle of May, had other trial and Army reserve military obligations through the end of August, and would be free only from July 12 to July 26. Judge Pollack thereupon set August 10 as the most convenient date for trial and told Santoro to arrange for substitute counsel if Lanna would be unable to appear.
Lanna wrote to the court on July 21 that Santoro had refused other counsel and insisted that Lanna represent him. The trial judge notified Lanna that the trial would proceed as scheduled and that he was not relieved of his duties as counsel.
The case was called for trial on August 10 with 100 veniremen present. The Government, Genaro and Ratteni were ready. Tortora and Chiaverini were absent, having been hospitalized allegedly for bronchitis and back pains respectively. The court revoked bail and issued bench warrants for their arrest. Santoro was present with Rosato, but Lanna was absent on military duty. The court then assigned Rosato to represent Santoro, but said that an additional attorney would be appointed if Santoro or Rosato desired. Santoro later accepted the court's offer and Mark Landsman was assigned as an additional defense attorney. The court then reset the trial date for August 16.
On August 16 Tortora was brought to court. Dr. George Grayson, chief resident of the Chest Center at Bellevue Hospital, testified that Tortora was able to participate in his defense. After hearing this testimony and observing Tortora, the court ruled that he was competent to stand trial.
The remainder of the defendants, except for Santoro, were also present.2 Rosato and Landsman told the court that they had both last seen Santoro on August 12. Rosato, however, had been telephoned by Santoro on August 15 to arrange for Rosato to drive him to court the next morning. Santoro was not at his apartment on August 16 when Rosato arrived although Santoro's wife indicated that he had been there the day before.
The court found that the trial of the case had commenced on August 10 and that, as Santoro had voluntarily and knowingly absented himself from the trial, there was no reason not to continue the trial with him as a defendant. Santoro was thus tried along with Tortora, Chiaverini, Genaro, and Ratteni.3
The Government's case consisted mainly of Formiglia's testimony and the taped conversations among Formiglia, Tortora and Santoro.
On Thursday, August 19, while the Government was still presenting its case, the court told the attorneys for the defendants that, if at all possible, testimony was to be concluded that week even if it meant a Saturday court day and that the defendants should have their witnesses present and ready to testify. On Friday the Government rested and Ratteni and Chiaverini each presented three witnesses and concluded their cases. Tortora's counsel told the court that he was unable to proceed at that time because Genaro's counsel had mistakenly sent one of Tortora's five witnesses home and the others weren't present. No showing was made as to what the absent witnesses would have testified. The court refused to grant a continuance, stating that the attorneys had been instructed to have all their witnesses present to testify in order that the trial be completed as quickly as possible. When Santoro offered no defense, court was adjourned until Monday. On Monday no further offer of proof was made on behalf of Tortora and none of his witnesses was present to testify.
At the close of the Government's case the court had dismissed the indictment against Genaro for insufficient evidence. The case against the remaining defendants was sent to the jury under proper instructions. The jury acquitted Chiaverini and Ratteni, but convicted Santoro and Tortora.
Tortora claims that he was improperly denied the right to present witnesses on his behalf by the court's refusal to grant a continuance on Friday afternoon. He had been advised by the court, however, to have his witnesses present and ready to testify. Apart from the witness mistakenly excused, Tortora should have had his other witnesses ready so that the trial would have been able to go forward. The witnesses were not even produced on Monday when the trial continued. Moreover, Tortora made no attempt to show that a continuance was warranted. The trial had been delayed numerous times and the trial judge may well have thought he was faced with another ploy to delay it further. Tortora should have made an offer as to what the witnesses would have testified to enable the trial judge to determine whether there was good cause for a continuance. United States v. Costa, 425 F.2d 950, 953 (2d Cir. 1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1843, 26 L.Ed.2d 272 (1970). "It is not every denial of a request for...
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