U.S. v. Biasucci

• Decision Date: 17 March 1986
• Docket Number: Nos. 459,s. 459
• Citation: 786 F.2d 504
• Parties: UNITED STATES of America, Appellee, v. Joseph BIASUCCI, Jesse David Hyman, a/k/a "Doc," Stanley Gramovot, Alan Albenga, Melvin Cooper, Anthony Charles Capo, Jr., Oscar Louis Albenga, a/k/a "Al" and Chaim Gerlitz, Defendants-Appellants. to 464, 471 and 509, Dockets 85-1206 to 85-1212 and 85-1224.
• Court: U.S. Court of Appeals — Second Circuit

Page 504

786 F.2d 504

UNITED STATES of America, Appellee, v. Joseph BIASUCCI, Jesse David Hyman, a/k/a "Doc," Stanley Gramovot, Alan Albenga, Melvin Cooper, Anthony Charles Capo, Jr., Oscar Louis Albenga a/k/a "Al" and Chaim Gerlitz Defendants-Appellants.

Nos. 459 to 464, 471 and 509, Dockets 85-1206 to 85-1212 and

85-1224.

United States Court of Appeals Second Circuit.

Argued Nov. 25, 1985.

Decided March 17, 1986.

Gerald L. Shargel, New York City, for defendant-appellant Biasucci.

Michael Young, New York City (David Breitbart, New York City, of counsel), for defendant-appellant Hyman.

Susan G. Kellman, New York City, for defendant-appellant Gramovot.

Ralph Naden, New York City, for defendant-appellant Alan Albenga.

Thomas Puccio, New York City (Stroock & Stroock & Lavan, New York City, of counsel), for defendant-appellant Cooper.

Joel M. Stein, New York City, for defendant-appellant Capo.

Robert Blossner, New York City, for defendant-appellant Oscar Albenga.

Julia P. Heit, New York City, for defendant-appellant Gerlitz.

John F. Savarese, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Bruce A. Baird, Aaron R. Marcu, Warren Neil Eggleston, Asst. U.S. Attys., New York City, of counsel), for appellee.

Before TIMBERS, PIERCE and MINER, Circuit Judges.

MINER, Circuit Judge:

Eight defendants appeal from judgments of conviction entered following a jury trial in the United States District Court for the Southern District of New York (Sand, J.) stemming from their involvement in a loansharking operation. Their principal contentions on this appeal are that certain videotapes recorded by a camera surreptitiously installed in a private business office should have been suppressed, that misconduct on the part of the prosecutor deprived them of a fair trial, that the trial court erroneously charged the jury on the state of mind the government must prove to establish the "collection of an unlawful debt," and that imposition of consecutive sentences for convictions under two statutes violated the double jeopardy clause of the Fifth Amendment. Finding that none of these or any of appellants' other arguments warrant reversal, we affirm the convictions in all respects.

I. BACKGROUND

Appellants Joseph Biasucci, Jesse David Hyman, Melvin Cooper, Oscar Louis Albenga, Alan Albenga, Stanley Gramovot, Anthony Capo, Chaim Gerlitz, and seven others were indicted for a variety of Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-1968 (1982) ("RICO"), and extortion, 18 U.S.C. Secs. 891-896 (1982), offenses. ¹

The charges against appellants stemmed from ten loans totaling approximately two-million dollars made by Resource Capital Group ("Resource Capital") in 1981 and 1982. Hyman and Cooper, who directed Resource Capital, were the central figures in these transactions. They conducted the scheme by drawing in customers with credit problems through promises of legitimate financing. They then would tell their customers that those funds were unavailable, but that the customers could get "emergency funds" at interest rates of one and one-half to five percent per week. As part of the effort to conceal the true nature of these transactions, the customers were obliged to sign documents falsifying the actual interest rates. Customers also were required to provide mortgages on their property, or shares in their businesses, as security for the loans. Interest payments were due weekly, and when the borrowers had difficulty meeting the payments, they were threatened with loss of their property, loss of control of their businesses, or physical injury.

The other appellants were involved with the loansharking operation in various ways. Biasucci and Gerlitz made funds available to Hyman and Cooper to operate the loansharking business and shared in the illicit profits collected from the business's customers. Gramovot brought one of the enterprise's victims to Resource Capital and later shared in the effort to take control of her business. Oscar Albenga was the chief collector of money from victims and Alan Albenga worked under his direction. Capo physically assaulted one of the enterprise's victims and, together with several other defendants, attempted to force that victim to sign over his interest in his business to the defendants.

At trial, the government established the existence of this racketeering enterprise and its loansharking activities principally through the testimony of victims of the loansharks, over 100 tape-recorded conversations from the Resource Capital offices and other locations, several videotapes recorded by a camera that had been surreptitiously installed in the Resource Capital offices, and various records and documents seized from the Resource Capital offices. After a thirteen-week trial and five days of deliberation, the jury returned guilty verdicts against the eight appealing defendants on various counts of the indictment and acquitted seven other defendants on all counts. ²

This appeal presents essentially four issues. First, appellants argue that the visual electronic surveillance of the Resource Capital offices, conducted pursuant to a court order, was improper because no statutory authority provided for such surveillance, and that even if authority did exist, the government failed to demonstrate a valid basis for such surveillance. Second, they contend that the RICO statute, 18 U.S.C. Secs. 1962(b) and (c), required that the government establish that each defendant had specific knowledge of the actual rate of interest charged on a usurious loan and that Judge Sand's failure to so instruct the jury was error. Third, appellants argue that they were deprived of a fair trial by certain acts of prosecutorial misconduct. Finally, Hyman and Cooper claim that the same conduct formed the basis for their convictions under both section 1962(b) and section 1962(c) and that consecutive sentences on these convictions, therefore, violated the double jeopardy clause of the Fifth Amendment. Finding these arguments, as well as all others presented by appellants, to be without merit, we affirm the convictions.

II. DISCUSSION

A. Visual Electronic Surveillance

On November 30, 1982, District Judge Thomas C. Platt issued an order pursuant to Fed.R.Crim. P. 41 and 57(b) authorizing Federal Bureau of Investigation ("FBI") agents to enter the Resource Capital offices and install a hidden video camera, which would record the movements of all persons who entered the premises over a thirty-day period. ³ Prior to trial, the defendants unsuccessfully moved to suppress the fruits of this surveillance, and the government thereafter offered into evidence ten of the videotapes. Appellants Hyman, Cooper, and Gerlitz argue that this surveillance was improper because no statutory authority provided for video surveillance in domestic criminal investigations, and even if authority did exist, the government failed to demonstrate a valid basis for such surveillance.

Appellants correctly note that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520 (1982), which authorizes federal judges to issue warrants (orders) for domestic wiretapping and electronic eavesdropping, does not authorize federal courts to permit visual electronic surveillance of private premises. United States v. Torres, 751 F.2d 875, 880 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985); United States v. Ianniello, 621 F.Supp. 1455, 1467 (S.D.N.Y.1985); In re Order Authorizing Interception of Oral Communications and Videotape Surveillance, 513 F.Supp. 421, 422-23 (D.Mass.1980); People v. Teicher, 52 N.Y.2d 638, 652-53, 439 N.Y.S.2d 846, 853, 422 N.E.2d 506, 513 (1981); Sponick v. City of Detroit Police Department, 49 Mich.App. 162, 198, 211 N.W.2d 674, 690 (1973). The statute sanctions only the "interception of wire or oral communications." 18 U.S.C. Secs. 2516(1), 2518(1) (1982); cf. United States v. New York Telephone Co., 434 U.S. 159, 166, 98 S.Ct. 364, 369, 54 L.Ed.2d 376 (1977) (pen registers are not governed by Title III because they are not concerned with "the aural acquisition of the contents of any wire or oral communication " (emphasis in original)).

Nor does the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. Secs. 1801-1811 (1982) ("FISA"), which is broad enough to embrace visual electronic surveillance, id. Sec. 1801(f), authorize such surveillance in domestic criminal investigations. The FISA allows the government to use electronic surveillance only for the purpose of obtaining "foreign intelligence information." Id. Sec. 1804(a)(7)(B); see United States v. Duggan, 743 F.2d 59, 77-78 (2d Cir.1984) (FISA warrant properly limited to foreign intelligence purposes); S.Rep. No. 604, 95th Cong., 2d Sess. 5, 7-10 (1978), reprinted in 1978 U.S.Code Cong. & Ad. News 3904, 3906, 3908-11.

On the other hand, nothing in Title III or the FISA indicates that Congress intended to prohibit video surveillance in domestic criminal investigations. ⁴ Thus, all that can be said is that Congress has not yet enacted any legislation explicitly authorizing domestic electronic video surveillance. Prior to the 1968 enactment of Title III, there similarly was no specific statutory authorization for wiretapping or electronic eavesdropping. Nevertheless, the Supreme Court had approved the court-ordered use of a concealed electronic device to record conversations, holding that the government had satisfied Fourth Amendment requirements. Osborn v. United States, 385 U.S. 323, 328-31, 87 S.Ct. 429, 432-34, 17 L.Ed.2d 394 (1966); cf. Katz v. United States, 389 U.S. 347, 354-59, 88 S.Ct. 507, 512-16, 19 L.Ed.2d 576 (1967) (wiretapping of telephone booth held unconstitutional because FBI agents did not obtain prior judicial approval); Berger v. New York, 388 U.S. 41, 58-59, 87 S.Ct. 1873, 1883-84, 18 L.Ed.2d 1040 (1967) (New York wiretapping statute held...