Com. v. Douglas

Citation236 N.E.2d 865,354 Mass. 212
PartiesCOMMONWEALTH v. Jack DOUGLAS et al.
Decision Date03 May 1968
CourtUnited States State Supreme Judicial Court of Massachusetts

John P. White, Jr., Boston, for defendant, O'Neill.

David S. Nelson, Boston, for defendant, Douglas, Joseph S. Oteri, Boston, for defendant, Alexander Celeste, and Monroe L. Inker, Newton, for defendant, Frank Celeste, joined in a brief.

Murray P. Reiser, Asst. Dist. Atty. (Roger Michael Carey, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

Douglas, Frank Celeste, Alexander Celeste, and Arthur J. O'Neill were indicted for various offences. Douglas and O'Neill were each charged with threats to extort. Alexander Celeste was charged with being an accessory before the fact to such threats. Frank Celeste and Alexander Celeste were each indicted for violation of G.L. c. 140, § 110, making it a crime for an unlicensed person to conduct a small loan business (see fn. 3). All four defendants were charged with conspiracy to extort. Frank Celeste was found not guilty on the conspiracy indictment, but the other three defendants were found guilty. Each defendant was found guilty of the other offences, listed above, with which he was charged. 1 The cases are before us under G.L. c. 278, §§ 3oA--33G, as amended. On somewhat conflicting evidence the facts set out below could have been found. The jury were not required to believe, or to regard as controlling, other evidence, which might tend to reflect adversely on the testimony and the behavior of the Commonwealth's principal witness, Melvin Sacks (as a partner in his insurance firm and as an employee of the Celestes from October, 1965, to August, 1966).

No defendant held a State license to make small loans. See G.L. c. 140, § 96, as amended through St.1962, c. 795, § 1 (see later amendment by St.1967, c. 190). In September, 1963, Alexander Celeste lent $500 to Sacks, an insurance broker. Interest was to be at the rate of $25 a week (equivalent to 260% per annum). Payments were to be made to one or the other of the Celestes. Some of about eight payments of $25 were made to Alexander Celeste. The other payments were made to Frank Celeste at Sack's place of business. The payments were not applied to the principal of the loan. Early in November 1963, Sacks paid Alexander the $500 princiapl.

In November, 1964, Alexander Celeste again lent Sacks $500 on the same terms. Frank Celeste appeared about once a week to collect $25, and thirty-nine payments of $25 were made between November, 1964, and August, 1965 (a total of $975). During the period, O'Neill began to accompany Frank Celeste when he made collections. No payments were made directly to Alexander Celeste. Sacks did not deduct on his 1965 Federal income tax return any interest payments on this loan.

After these thirty-nine payments had been made, at a time when four or five $25 payments were due, Frank Celeste told Sacks to credit the amount to Frank's insurance account with the insurance firm in which Sacks was a partner with Malcolm Post. This credit involved about $175 for insurance premiums due. Sacks made no interest payments on the loan thereafter, at least until September, 1966. Sacks closed or sold his insurance agency and for a time after late August, 1965, was unemployed. In October, 1965 (when Sacks, in accordance with his 1964 arrangement with Alexander Celeste, owed the $500 principal plus four of five interest payments), Sacks was told by Alexander Celeste in Frank Celeste's presence, that he could start working for the Celeste brothers at a used car lot ('New England Auto') in Dorchester. He said that they would 'table' the loan, pending a later arrangement for paying it. Sacks worked for eight to ten months for New England Auto, was clerk of the corporation, did bookkeeping for it, and was a stockholder in the concern. Sacks left New England Auto in August, 1966, although he worked to some extent on their books for two months thereafter. There was testimony indicating disputes between the Celestes and Sacks concerning the latter's sales activities.

On August 24, 1966, Douglas reported to Alexander Celeste by telephone in Sacks's presence that there had been a call from the district attorney's office concerning Sacks. Sacks, at Alexander Celeste's house, told Celeste that the call was about money Sacks had borrowed from another lender. Sacks's testimony was that Celeste then hit him in the face, and kicked him in the stomach. See, however, the verdict that Alexander Celeste was not guilty of assault and battery (fn. 1). On this occasion, Alexander told Sacks 'it was a cardinal sin to borrow money from another loan shark while owing one.' Alexander also told Sacks that if he 'knew what was good for * * * (his) wife and kids,' he had better not say anything to anyone from the district attorney's office. On an earlier visit Alexander had shown Sacks two sticks of dynamite, and on this occasion said that he would not 'think twice about blowing up' Sacks's house. Sacks also testified that he saw various victims 'take a beating' in back of the Celestes' garage.

Sacks in fact had borrowed from one Zine and owed money to one Carbone. The latter, when called as a witness in the absence of the jury, claimed his constitutional privilege not to testify.

On August 25 or 26, 1966, Sacks was told by Douglas that he knew Sacks was leaving the employment of New England Auto, that Sacks 'still owed some money, and that * * * (he would) have to make arrangements to pay it.' Sacks had a similar talk with Frank Celeste and with Alexander Celeste. He also had a telephoned inquiry from Douglas who 'asked * * * what * * * (Sacks) was doing about getting some money' and said, 'You better have it. * * * (Y)ou should pay it, if you don't want any trouble.' On September 1, Douglas called again and demanded money by the next weekend. On September 8, 1966, Sacks spoke by telephone with O'Neill and Douglas. O'Neill said, 'If you don't want to get hurt, you'd better get some money * * * real fast.' Douglas said, '(Y)ou are almost at the end of the road.' On September 14, O'Neill told Sacks, 'You'd better have some money or you could be put in the hospital for four or five weeks.' That day Sacks gave O'Neill $300.

On September 19, Sacks's father withdrew $1,000 from a savings bank and gave Sacks a check for $1,000. Sacks cashed this and paid the proceeds to Douglas. Douglas reported to Sacks that he paid these proceeds to Alexander Celeste. Two days later Douglas asked for the balance. When Sacks replied that he could not get $1,000 'just like that,' Douglas said, 'When you feel that cold barrel (of a gun) to your head, you'd be surprised how many ways you can think of of coming up with some money.' He added, '(Y)our kid must have a long walk * * * from school, and you wouldn't want anything to happen to her knee caps on the way home, would you?' From early in September, Sacks received numerous telephone calls from Douglas substantially every day pressing for payment. Some of these calls were to Sacks's house, but many went to Sacks's new place of employment in Quincy.

In September and early October, Sacks consulted an attorney, Mr. Jordan Ring, a neighbor. Mr. Ring then represented a client who had made an attachment on Sacks's house. Sacks wished to get this attachment removed so that he 'could raise the money to pay Al Celeste.' It was brought out in part on cross-examination, and expanded in redirect examination, that Sacks told Mr. Ring the story of the threats. He informed Mr. Ring that he had told a detective from the district attorney's office nothing, because he did not 'want any harm to come to * * * (his) family and' himself. He informed Mr. Ring that he (Sacks) 'would rather pay the money' than go to the district attorney's office in view of the risks. Mr. Ring 'insisted that * * * (Sacks) go to the District Attorney's office.'

On October 11 or 12, 1966, Douglas went to Sacks's place of employment and renewed his demands. Sacks told Douglas he had no money for him. Douglas replied, 'I should bust you right in the face right now, but I am not going to. I'm going to see what I can do for you but you'd better have some money in the next day or so.'

Sacks called Mr. Ring. Two detectives from the district attorney's office visited him on October 11, 12, and 15. With Detective McLean listening on an extension telephone, Sacks 'called * * * Douglas back,' apparently in response to a message left with Mrs. Sacks by Douglas. Douglas said, 'I can get you a few more days. * * * I should have busted you this morning. You're a no-good * * *.' He also told Sacks that he had 'better come up with the money.' 2

Sacks gave the police permission to install a tape recorder on his telephone line. On October 17, there was recorded one of many telephone conversations between Sacks and Douglas during this period. In this conversation Douglas made demands for payment. Mr. Ring, Sacks's attorney, heard the conversation, which originated with a call by Sacks, with the aid of a speaker attached to the recorder on which one 'can hear what is being taped.' He verified the accuarcy of the tape, which was received in evidence, after an extended voir dire. Douglas admitted that the recorded voice was his. The machine 'was not telephone equipment.' It was installed without the participation or consent of the telephone company, without any judicial authorization, and without Douglas's knowledge. The tape recorder gave off no 'beeps' which would inform a person on the line that it was operating. The first machine did not work and it was replaced prior to October 17. This, so the detective who installed it testified, was not a 'wire tap,' because the machine was installed with the permission of Sacks, the telephone subscriber.

On October 17, Sacks paid to Douglas five...

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