U.S. v. Bigelow

• Citation: 914 F.2d 966
• Decision Date: 30 October 1990
• Docket Number: Nos. 89-2274,89-2292,89-2294,89-2293,s. 89-2274
• Parties: 31 Fed. R. Evid. Serv. 394 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gregory Scott BIGELOW, Vincent Lima, and Anthony W. Vaughan, Defendants-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 966

914 F.2d 966

31 Fed. R. Evid. Serv. 394

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gregory Scott BIGELOW, Vincent Lima, and Anthony W. Vaughan,

Defendants-Appellants, Cross-Appellees.

Nos. 89-2274, 89-2292, 89-2293, 89-2294.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1990.

Decided Sept. 28, 1990.

Rehearing and Rehearing En Banc

Denied Oct. 30, 1990.

Thomas M. Durkin, Stephanie Uhlarik, Joshua T. Buchman, Asst. U.S. Atty., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee, cross-appellant.

Joshua Sachs, Frederick F. Cohn, John A. Meyer, Chicago, Ill., Carl P. Clavelli, Schiller Park, Ill., Michael J. Coggin, Oak Park, Ill., for defendants-appellants, cross-appellees in No. 89-2274.

Raymond D. Pijon, Joshua Sachs, Frederick F. Cohn, Chicago, Ill., for defendants-appellants, cross-appellees in No. 89-2292.

Frederick F. Cohn, Chicago, Ill., for defendants-appellants, cross-appellees in No. 89-2293.

Carl P. Clavelli, Schiller Park, Ill., for defendants-appellants, cross-appellees in No. 89-2294.

Before BAUER, Chief Judge, CUMMINGS and WOOD, Circuit Judges.

BAUER, Chief Judge.

Carl Sandburg once described Chicago as "Hog Butcher for the World,/ ... Stormy, husky, brawling,/City of the Big Shoulders." ¹ This case combines these elements with unfortunate results. Vincent L. Lima, a wholesale meat distributor, hired two rather large gentlemen, Anthony W. Vaughan and Gregory Scott Bigelow, to collect debts owed to Lima's company. The strong-arm tactics employed by these collectors led to convictions of all three men for conspiracy to participate and the knowing participation in the use of extortionate means to collect extensions of credit, in violation of 18 U.S.C. Sec. 894. All three defendants have appealed their convictions. In addition, the government has appealed the district court's downward departures from the penalties established under the Sentencing Guidelines. We affirm the convictions of Lima, Bigelow and Vaughan. We vacate the defendants' sentences as given, however, and remand for resentencing by the district court consistent with the Guidelines and this opinion.

I. The Facts

Vincent L. Lima is the owner of M & V Provisions ("M & V"), a wholesale meat distributor, in Chicago, Illinois. Lima sells large quantities of meat to retail operations, frequently on credit. M & V has ten employees, but Lima himself handles the collections on large accounts.

On April 14, 1988, Anthony W. Vaughan and Gregory Scott Bigelow were walking around the wholesale meat dealers' business district, drumming up business for their new enterprise: "Crash Course Collections, Inc." Vaughan, who stands between 6'6" and 6'8" feet tall and is relatively husky, and Bigelow, two inches shorter and slightly thinner, were visiting distributors and handing out business cards. The cards stated simply, "We guarantee results." It gave just their first names, "Tony" and "Scott," and a beeper number. In a final burst of subtlety, Vaughan and Bigelow added a drawing of a funeral wreath. At M & V, they talked with Lima's son, Larry, who took one of the cards and passed it along to his father.

Vincent Lima subsequently hired Vaughan and Bigelow to collect on one of his troubled accounts, James Lekkas of Chicago Gyros & Produce. Lekkas owed Lima and M & V approximately $5,000. The account had been outstanding since the fall of 1987. Lekkas had twice bounced checks for his account with Lima and was now apparently hiding from Lima. On April 18, Vaughan and Bigelow confronted Lekkas outside a produce store and demanded that he pay his debt to Lima. When Lekkas claimed that he did not have enough money to pay his bill, Vaughan and Bigelow threatened him and tried to push him inside their car. Breaking free, Lekkas ran inside a nearby store where onlookers had called the police. Vaughan and Bigelow jumped in their car and fled before the police arrived.

Later, Lekkas called Lima and described his treatment by these newly-hired collectors. Lima responded that the matter was out of his hands and that Lekkas would have to deal with the collectors now. Indeed he would: Lekkas continued to receive threatening phone calls from Vaughan informing him to pay the money he owed Lima and that "we know where you live." Two weeks after the incident Lekkas sent an initial payment of $500 to Lima.

After the successful Lekkas collection, Lima gave additional business to Crash Course Collections, Inc. Vaughan and Bigelow were asked to collect from William Burks of Rib King in Dolton, Illinois. Burks had taken delivery of six or seven shipments of meat worth $23,000 on credit, from May to October 1987. Despite several inquiries by Lima and Burks' repeated promises to pay, the debt was never satisfied. Burks had written several bad checks to Lima, and was obviously a source of continuing frustration.

On May 6, 1988, Vaughan and Bigelow appeared at Burks' home at 7:30 in the morning. Burks' thirteen year-old son, John, answered the door and the collectors asked for his father. Burks came downstairs and met Vaughan and Bigelow at the door. They suggested that Burks invite them inside. Burks refused. At this point, all hell broke loose.

Vaughan and Bigelow tried to push past the 270-pound Burks and into his house. When Burks pushed back, Bigelow punched him in the face, knocking Burks to the ground and ripping a hole in his lip. John Burks, having seen the punch, ran into the next room to call the police. Bigelow chased him, shoved him into the couch, and tore the phone from the wall. Mrs. Burks, hearing the commotion, came running downstairs from the second floor and asked what was happening. She was told to "shut the fuck up." Vaughan and Bigelow asked Burks if he knew Vince (Lima) from M & V. Burks admitted he did. The men told Burks to "come up with $10,000 by Sunday, $3,000 a week after that, or you're dead." Vaughan and Bigelow then left the house. Burks immediately called Lima and informed him of the attack. Lima responded simply, "pay up."

Burks decided to take the story of his assault to a more sympathetic listener: the FBI. After hearing Burks' story, an agent placed a recorder on Burks' home phone. Over the next several days, agents monitored and recorded a series of calls between Burks and Lima, and Burks, Vaughan and Bigelow, in which the defendants repeatedly threatened Burks and his family if he failed to pay his debt to Lima and M & V. On May 10, 1988, Vaughan and Lima were arrested. Bigelow, after promising to surrender himself to FBI agents on May 23, 1988, fled Chicago and was eventually found in California. He was returned to Chicago were he was arrested and charged.

Lima, Bigelow and Vaughan were each charged in a nine-count indictment with conspiracy to participate and knowing participation in the use of extortionate means to attempt to collect extensions of credit, in violation of 18 U.S.C. Sec. 894. Following a jury trial before Judge Nordberg from January 23 to February 3, 1989, Lima was found guilty on seven counts, Bigelow on eight counts and Vaughan on all nine. On May 18, 1989, Judge Nordberg sentenced Lima to four weekends in custody, four years probation, four hundred hours of community service and a fine of $5,719.33. Bigelow received a 24-month sentence, to be followed by three years probation. Vaughan was given a 15-month sentence and three years probation. Each of the defendants now appeals his conviction. In addition, the government has appealed the sentences imposed by the district court. We will consider each of the issues raised in turn.

II. Lima: The Ostrich Instruction

In his charge to the jury, Judge Nordberg gave the following instruction on the issue of Lima's knowledge:

You may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed, or that someone has withheld some important facts, yet shut his eyes for fear of what he would learn, you may conclude that he acted knowingly as I have used that word.

Lima contends that this discussion of conscious avoidance, the so-called "ostrich instruction," was erroneously given because such an instruction is inappropriate where actual knowledge is an issue and no question of deliberate avoidance exists. In the alternative, Lima argues that even if an "ostrich instruction" was acceptable, the wording of this particular instruction was improper in the context of this case.

At the outset, we note that in assessing the district court's determination to give this instruction, we must review the evidence and any reasonable inferences that can be drawn from that evidence in the light most favorable to the government. See United States v. Talkington, 875 F.2d 591, 596 (7th Cir.1989); United States v. Johnson, 605 F.2d 1025, 1028 (7th Cir.1979). In addition, we do not review instructions in lonely isolation, but rather in the context of the trial as an integrated whole. See United States v. Herrero, 893 F.2d 1512, 1536 (and cases cited therein).

The language used in the district court's "ostrich instruction" was developed by this court in United States v. Ramsey, 785 F.2d 184, 190-91 (7th Cir.1986). In Ramsey, we noted that every circuit has approved some form of deliberate avoidance instruction. 785 F.2d at 189 (citing cases). Since then we have repeatedly approved the use of the language we provided there. See United States v. DeFazio, 899 F.2d 626, 635-36 (7th Cir.1990); Herrero, 893 F.2d 1512; Talkington, 875 F.2d 591; United States v. Diaz, 864 F.2d 544 (7th Cir.1988); United States v. Holland, 831 F.2d 717 (7th Cir.1987). While we have warned that "this instruction should be given only when it addresses an issue reasonably raised by the evidence," Diaz, 864 F.2d at 549, an ostrich instruction is appropriate when "the defendant claims a lack of guilty knowledge and there are facts and evidence...