U.S. v. Pepe

• Decision Date: 28 November 1984
• Docket Number: Nos. 81-5453,81-5965,s. 81-5453
• Citation: 747 F.2d 632
• Parties: 17 Fed. R. Evid. Serv. 412 UNITED STATES of America, Plaintiff-Appellee, v. Angelo PEPE and Thomas Miglionico, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Albert Joseph FACCHIANO, Francis Santo, Paul Santo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 632

747 F.2d 632

17 Fed. R. Evid. Serv. 412

UNITED STATES of America, Plaintiff-Appellee, v. Angelo PEPE and Thomas Miglionico, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Albert Joseph FACCHIANO, Francis Santo, Paul Santo,

Defendants-Appellants.

Nos. 81-5453, 81-5965.

United States Court of Appeals Eleventh Circuit.

Nov. 28, 1984.

Joseph Mincberg, Lubin & Mincberg, West Palm Beach, Fla., for Pepe.

Federico A. Moreno, Miami, Fla. (Court-appointed), for Miglionico.

Joseph Beeler, Miami, Fla., for Facchiano.

David Lenihan, Albany, N.Y., for F. Santo and P. Santo.

William C. Bryson, Robert J. Erickson, Washington, D.C., for U.S.

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

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Albert "Chink" Facchiano, Thomas Miglionico, Angelo Pepe, Francis "Jigger" Santo, and Paul Santo were convicted under the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. Sec. 1961-68 (1982), for conducting loan sharking activities in southern Florida. In this consolidated appeal, they question the legal sufficiency of the indictment to charge one of the RICO offenses and of the evidence to support their multiple convictions. They also question several of the trial judge's rulings made prior to, during, and after the trial.

We conclude that the allegations of the indictment were sufficient to charge the RICO offense in question and that the evidence proved each of the offenses charged against appellants, except the one charged against Francis "Jigger" Santo in count five of the indictment. We also conclude that the trial judge did not err in making the pretrial, trial, and post-trial rulings that appellants question. Accordingly, except as to Francis Santo's conviction on count five, we affirm.

I.

A. The Factual Background

From January 1, 1973 through December 1975, Alexander Heller, Howard Horowitz, Sanford Rafsky, and Herbert Zucker ("the partners" and primary victims of appellants' loan sharking activities) were owners and officers of Z & H, Inc. (Z & H), which manufactured ladies' sportswear in Hialeah, Florida. The partners formed Z & H in late 1972. Rafsky was its president, although his name did not appear on Z & H's corporate documents because he had recently declared bankruptcy. In January 1973, the partners traveled to Las Vegas to obtain cash from casinos with which to capitalize Z & H. Heller, Horowitz, and Rafsky procured $35,000 in credit from the Aladdin Hotel, gambled briefly, cashed their chips and returned to Florida, owing approximately $32,000 to the hotel. ¹ The following May, two "strong, burly-looking" men from Las Vegas arrived at Z & H's Hialeah plant and threatened the partners with physical harm ² unless they paid their debt to the Aladdin Hotel. At this point Angelo Pepe, Z & H's plant superintendent, interceded on behalf of the partners. Pepe took the two men aside for a chat and they left shortly thereafter, stating that Pepe was a "good friend." Rafsky then gave Pepe a check for $5,000 to settle the $32,000 debt in full. Pepe took the check, telling the partners that it was for "Chink" (Facchiano) who apparently had sufficient influence to cancel the debt to the casino. ³

By mid-1973, Z & H could not pay its bills and was unable to secure bank loans. Z & H's financial difficulties were the genesis for the crimes committed in this case. The partners borrowed money from, and were victimized by, two groups of loan sharks. The first group, consisting of appellant Albert "Chink" Facchiano and his lieutenant, Vincent "Terry" Terriacca, made two extortionate loans to the partners. The second group, headed by appellant Francis "Jigger" Santo and staffed by two enforcers, appellants Thomas Miglionico and Paul Santo, made three loans to the partners. Both groups employed appellant Angelo Pepe as a loan solicitor, collection agent, and enforcer. The two groups also combined their resources to extort loan payments from the partners.

When Z & H became strapped for cash, Pepe told the partners that he could obtain "shylock loans," setting the stage for the partners' first contact with the loan sharking group. The partners expressed interest, and Pepe introduced Herbert Zucker to Terriacca, Facchiano's lieutenant, in Miami. Terriacca told Zucker that he was in the business of loaning money at high interest rates, and he offered to loan the partners $10,000 at three percent interest per week. Terriacca warned Zucker that the partners would suffer severe consequences if they failed to pay off the loan. The three men parted without negotiating a loan; Pepe cautioned Zucker that "those people don't play games." Thereafter, Rafsky asked Pepe to try to negotiate a lower interest rate. Pepe and Zucker met Terriacca again, and Terriacca, acceding to Pepe's request, told Zucker that the interest rate would be two percent per week. The parties agreed to a $10,000 loan at that rate, and Terriacca warned Zucker, "I don't want you to get hurt, so pay it back on time." Before the loan closed, Pepe cautioned Zucker that "this is a tough, hard organization, and be sure to pay back the loan, otherwise [someone would] get hurt." He also told Zucker that Terriacca was a lieutenant for "Chink" (Facchiano), who operated the largest "shylocking" operation in south Florida for an organized crime "family." They closed the loan in July 1973 at a third meeting, arranged by Pepe. Terriacca instructed Zucker to pay the loan off through Pepe in ten weekly installments. The partners paid off the loan, as scheduled, through Pepe.

Z & H continued to have financial difficulties, and in late 1973 the partners asked Pepe if he could arrange another loan. This time Pepe went to Francis "Jigger" Santo, a South Florida bookmaker, and obtained a $20,000 loan, at an interest rate of one and one-half percent per week, payable in weekly installments of $2,000. Pepe gave the partners $18,000 of the loan proceeds and, with their acquiescence, kept $2,000 as a commission. The partners used $15,000 of the money to purchase two thoroughbred race horses named "Jigger's Gal" and "Sew for Four." "Sew for Four" was a success, and the partners paid Pepe some of the interest due on the Santo loan.

In February 1974, the partners got Pepe to obtain a second loan from Francis Santo, $25,000 at an interst rate of two and one-half percent per week payable in cash through Pepe. The first Santo loan was still unpaid, so Rafsky gave Santo a $50,000 check as collateral to cover both loans. Francis Santo warned the partners that they would get hurt if they failed to pay off the loans. Pepe also told Rafsky that "things [will] get rough if you don't get the payments made on time." To ensure that the partners' payments would be forthcoming, Francis Santo made the partners hire Thomas Miglionico as a laborer in Z & H's plant, so that Miglionico could "watch [Santo's] money."

Z & H's cash flow problems continued, and on June 25, 1974 Pepe arranged a third loan from Francis Santo for $20,000 at three percent interest per week, again payable weekly through Pepe. As before, Pepe gave the partners $18,000 of the proceeds and kept $2,000 as a commission. The partners used the $18,000 to buy fabric. Later that month Pepe obtained on behalf of the partners, through Terriacca, a second Facchiano/Terriacca loan for between $15,000 and $20,000, at three percent interest per week.

By August 1974, the partners were substantially in arrears on the three Santo loans and the second Facchiano/Terriacca loan. Terriacca harassed Rafsky frequently, often coming to Z & H's plant, but Rafsky still made no payments on the loans. Francis Santo told Rafsky that unless payment was forthcoming he would break Rafsky's legs or tear his eyes out. Santo offered to take the race horses in lieu of payment. Pepe and Miglionico also pressured the partners. Pepe told them to pay up because he was "being hounded by Terriacca and Chink [Facchiano]"; Miglionico said that he would protect Francis Santo's interests at all costs.

Fearing for his safety, Rafsky fled to New York. Soon after his arrival, however, Paul Santo, Francis Santo's son, who lived in Massachusetts, began calling Rafsky demanding that he make payments on his father's loans. Finally, in January 1975, Rafsky agreed to meet with Paul Santo at a steak house in New York City to discuss the Francis Santo loans. Rafsky took three friends with him to the meeting for protection. At the meeting, Paul Santo, warning Rafsky that he became violent when he lost his temper, demanded that Rafsky pay $75,000 in satisfaction of the Francis Santo loans. The next day Rafsky offered Paul Santo a $5,000 check as partial payment, but Santo refused to take the check, demanding that Rafsky pay in cash. Shortly thereafter Rafsky sent Paul Santo $5,000 in cash through Edward Vanasco, one of Santo's friends. This partial payment, however, did not diminish the Santos' collection efforts. The Santos and Pepe made threatening phone calls to Rafsky, prompting Rafsky to pay Paul Santo an additional $2,500 in cash. Rafsky also had a friend give Paul Santo two small cash payments. Paul Santo and Rafsky subsequently met for a second time in a New York City restaurant. Rafsky again came with three friends; Santo brought Vanasco and Pepe. After a heated argument Rafsky agreed that he still owed Francis Santo $65,000.

When the partners failed to make any further payments, Paul Santo told Rafsky to meet him again in New York City, this time at the Essex House. The meeting was held on September 23, 1975, but Rafsky failed to appear because he feared for his safety. Instead, he sent two friends, Norman Kops and Lionel Reifler. They met with Paul Santo, Vanasco, and Facchiano, who had traveled to New York City from South Florida to attend the meeting. Facchiano opened the meeting by...