U.S. v. Chance
| Citation | 306 F.3d 356 |
| Decision Date | 19 September 2002 |
| Docket Number | No. 99-4437.,99-4437. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Philip A. CHANCE, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Craig S. Morford (briefed), Office of the U.S. Attorney, Cleveland, OH, Frank J. Marine (argue and briefed), U.S. Department of Justice, Organized Crime & Racketeering Section, Washington, DC, for Plaintiff-Appellee.
Leonard W. Yelsky, Yelsky & Lonardo Cleveland, OH, Peter D. Goldberger (argued and briefed), Law Office of Peter Goldberger, Ardmore, PA, for Defendant-Appellant.
Before: BATCHELDER and COLE, Circuit Judges; BECKWITH, District Judge.*
Defendant-Appellant Philip A. Chance appeals his conviction and sentence on one count of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c), one count of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d), two counts of conspiring to obstruct, delay, or affect commerce through extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and one count of conspiring to obstruct the enforcement of the criminal laws of a state with the intent to facilitate an illegal gambling business, in violation of 18 U.S.C. § 1511. The district judge sentenced Appellant to 71 months of imprisonment and two years of supervised release, and imposed a mandatory $500 special assessment. In sentencing Appellant to 71 months of imprisonment, the district judge upwardly departed three levels from the applicable final offense level on the grounds that the fact that Appellant's conduct was undertaken as chief law enforcement officer of Mahoning County, Ohio was not taken into consideration by the Sentencing Guidelines. The district court also imposed a two level increase in the offense level pursuant to U.S.S.G. § 3C1.1 for obstruction of justice on the grounds that Appellant committed perjury during the trial. On appeal, Appellant challenges the sufficiency of the evidence supporting the convictions, the district court's decision to impose a sentencing enhancement for obstruction of justice, and the district court's decision to upwardly depart from the guideline sentence. Appellant also claims the district court erred by permitting the prosecution to conduct cross-examination regarding criminal convictions or indictments of other employees of the Mahoning County Sheriff's Department. For the reasons set forth below, we affirm Appellant's convictions on Counts 1, 2, and 3 of the indictment. We reverse Appellant's convictions on Counts 4 and 5 of the indictment. In addition, we affirm the district court's decision to upwardly depart from the guideline sentencing range but remand the case for the district court to justify the extent of the departure.
As the evidence presented in this case will be discussed in greater detail in Part II, infra, at this time we will only give a brief recounting of the facts in this case.
In 1992, Appellant Philip A. Chance ran for the office of Mahoning County Sheriff but lost in the primaries to incumbent Ed Nemeth.1 Appellant did, however, garner forty percent of the votes in the primary. Buoyed by this achievement, Appellant decided to run for Sheriff again in 1996. Missing from his 1996 campaign, however, was a key ingredient of his 1992 campaign-the financial support of Youngstown mall developer Anthony Cafaro. Financially strapped and with his campaign in need of funds, Appellant turned to Youngstown Mafia boss Lenine "Lenny" Strollo for help.
Lenny Strollo was having problems of his own in 1996. Strollo was a member of the Pittsburgh branch of La Cosa Nostra. Thanks to extensive payoffs to politicians and high-ranking law enforcement officials, Strollo controlled all the illegal gambling operations in the communities and suburbs surrounding Youngstown. Gambling operations within Youngstown itself, however, were a different matter. Here, Strollo had two interrelated problems. One problem was that he had competition not only from independent gambling operations, but also from the Cleveland branch of La Cosa Nostra.2 The second problem was that the police chief in Youngstown was unbuyable and Strollo's agreement with the incumbent sheriff, Ed Nemeth, had apparently run its course. Thus, Strollo had no influence within Youngstown proper. To illustrate, one of Strollo's early efforts to extort a "street tax" from the independent bookmakers for the privilege of operating in Youngstown was largely unsuccessful because of lack of cooperation from local law enforcement. Therefore, Strollo decided to back Appellant in the election for county sheriff and then use the Appellant's department to close down those gambling operations who refused to pay up.
The other principal players in this crime drama were John Chicase, Lawrence "Jeep" Garono, and Charles O'Nesti. Chicase, also a former deputy sheriff, was a close friend of Appellant's and a key member of Appellant's campaign staff. Although after leaving the Sheriff's Department Chicase ran a legitimate security business, he also participated in Strollo's criminal operations. It was Chicase, along with a collector named Tony Zappia, who carried out Strollo's initial attempt to extort a street tax from the independent gambling operations. Coincidentally and fortuitously, Jeep Garono and Chicase were first cousins. Garono owned a legitimate landscaping business, but was also one of the top lieutenants in Lenny Strollo's gambling organization. Charles O'Nesti, a long-time friend of Lenny Strollo, was an aide to U.S. Representative James Traficant and had a well-known reputation for being the mob's "bagman" in Youngstown.
Testimony at trial showed that during the election campaign, Appellant asked Chicase to approach Jeep Garono about soliciting money on his behalf from Lenny Strollo despite Chicase's warnings that if he took money from Strollo he "would be selling his soul to the Devil." Appellant also asked O'Nesti to ask Strollo for money for his campaign. Strollo testified that initially he and Appellant met at his house several times and that Appellant understood what would be required when he took office. The understanding, of course, was that Appellant would use the Sheriff's Department to shut down the non-cooperating gambling operations identified by Strollo but leave unmolested Strollo's own operations. After the initial few face-to-face meetings, Appellant and Strollo used Chicase, Garono, and O'Nesti as go-betweens so the two would not be connected and ruin Appellant's bid to become sheriff. Testimony at trial further showed that Strollo used Garono, O'Nesti, and Chicase to funnel over $30,000 to Appellant for his campaign. In addition, Strollo paid for the cost of catering one of Appellant's fundraisers by forgiving a $12,000 gambling debt owed to him by the caterer's nephew. In addition, after the election, Strollo paid for a gambling junket to Atlantic City taken by Appellant and Chicase.
Appellant won the election and installed Chicase as the head of the vice department. According to Chicase's testimony, Garono identified two gambling operations, one on Lane Street in Youngstown and one at the Open Hearth Restaurant, which Strollo wanted the Sheriff's Department to raid. Chicase testified that Appellant gave him permission to conduct the raids with the full knowledge that the requests for the raids came from Strollo. On another occasion, O'Nesti asked Chicase to raid a barbut3 game at an establishment called the Greek Coffee House. It turned out, however, that this particular game was operated by Bernie Altshuler, another one of Strollo's top men. Therefore, Garono told Chicase to leave it alone. Faced with conflicting instructions, Chicase went to Appellant, who told him not to raid the game and said that he would "take care of" O'Nesti. As a result, the Sheriff's Department never raided the Greek Coffee House game.
In addition to his agreement with Lenny Strollo, Appellant had his own plan to extort campaign contributions from Youngstown fireworks millionaire Bruce Zoldan. Zoldan was a supporter of Appellant's opponent and therefore did not contribute to Appellant's campaign. Chicase testified that during the election, he and Appellant discussed shutting down Zoldan's business after taking office (presumably on bogus safety violations) in response to his lack of support. After Appellant took office, Chicase was involved in a meeting regarding transferring some prisoners from Columbiana County to Mahoning County with Zoldan's chief of security, Robert Martino. Martino testified that when that meeting broke up, Chicase pulled him aside to tell him to tell Zoldan that if Zoldan "didn't come across he was going to shut his operation down." Martino relayed the message to Zoldan and as a result, Zoldan purchased approximately $2,000 in tickets to a golf outing being held to reduce Appellant's campaign debt.4
On February 2, 1999, a grand jury for the Northern District of Ohio returned a six-count indictment against Appellant and John Chicase. Appellant was charged in five of those six counts. Chicase later entered into a plea agreement with the government and testified against Appellant at trial. Count 1 of the indictment charged Appellant with conducting the affairs of an enterprise through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). As predicate acts of the RICO charge, the indictment alleged three separate acts of bribery in violation of Ohio Revised Code § 2921.02, two separate acts of...
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