U.S. v. Crockett
| Decision Date | 12 November 1992 |
| Docket Number | 90-2128,Nos. 90-1733,s. 90-1733 |
| Citation | 979 F.2d 1204 |
| Parties | 37 Fed. R. Evid. Serv. 217 UNITED STATES of America, Plaintiff-Appellee, v. Clarence CROCKETT and Albert Tocco, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert L. Michels (argued), Office of U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Patrick A. Tuite (argued), Chicago, Ill., for defendant-appellant.
Kenneth H. Hanson (argued), Chicago, Ill., for defendant-appellant.
Before RIPPLE and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Albert Tocco was tried and convicted of violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c) (RICO), 18 U.S.C. § 1962(d) (RICO conspiracy), seventeen counts of aiding and abetting violations of 18 U.S.C. § 1951 () in violation of 18 U.S.C. § 2, nine counts of extortion in violation of 18 U.S.C. § 1951, five counts of understating his income, and one count of obstruction of justice. Co-defendant Clarence Crockett was convicted of RICO conspiracy, substantive RICO, travelling in interstate commerce to carry on and distribute the proceeds of unlawful activity, extortion, and failure to file income tax returns. They appeal their convictions on a variety of grounds. For the reasons set forth in this opinion, we affirm.
We limit our presentation of the facts to those necessary to the disposition of this appeal. The evidence adduced at trial depicted the operation of a criminal enterprise headed by Albert Tocco; extortion was the principal activity of that enterprise. Because most of the targets of the organization's acts of extortion were themselves engaged in illegal activity, they were unable or unwilling to go to the police for help. The targeted entities included automotive salvage businesses involved in disassembling stolen cars and selling the parts ("chop shops"), houses of prostitution, illegal gambling operations, as well as taverns and a vending machine business. The acts of extortion were carried out with threats of violence, including murder and arson. Both violence and threats of violence were also used to maintain discipline within the organization.
Clarence Crockett and a number of other individuals worked for the enterprise by collecting monthly "street tax" payments from the victims of the organization's acts of extortion. Mr. Crockett worked closely with William Dauber, who, together with his wife, was later murdered at Albert Tocco's direction. Dauber would make the initial demand for payments, and Mr. Crockett would appear every month to collect the money. Beginning in 1977, Mr. Crockett collected monthly payments of $500 from Sheldon Fishman, who ran East Side Auto Parts, an automobile salvage yard. He also collected payments from Jerald Rosenstein and Calumet Auto Wrecking in Hammond, Indiana; Robert Brecka and Universal Auto Parts; Ronald Sowder, Robert Walker, and Fat Boys Auto; and Cheryl Gasbarro, Joseph and Michael Badali, and their illegal gambling operation.
In the fall of 1979, Joyce Valerie Walker, who ran a house of prostitution in Dolton, Illinois, received a telephone call from Dauber, who said "You don't know me, but I know you ... I know what you're doing, and you have to pay." Tr. Vol. 8 at 1294. He told her that a man would come to her door once a month, around the middle of the month. A few days later, Mr. Crockett knocked on her door and announced, "I'm the man." Id. at 1300. Walker asked, "The man for what?," and Mr. Crockett said again, "I'm the man." Walker replied, "I don't know what you are talking about." Mr. Crockett again said, "I am the man," and then she understood and gave him an envelope with $400 in it. Id. Thereafter, for approximately a year and a half, Mr. Crockett collected from Walker every month.
Mr. Crockett was not involved in Mr. Tocco's extortion of Herbert Panice. In 1980, Panice opened the Show Club, a house of prostitution, in Chicago Heights. Panice approached Mr. Tocco, whom he knew by reputation as the boss of Chicago Heights, for help in obtaining a liquor license. Mr. Tocco accompanied Panice to a Charles Bills also worked for Mr. Tocco, first with Dauber and then with Mr. Crockett, collecting street tax from chop shops. Bills also collected street tax from taverns. He testified that when one tavern owner, Steven Pasek, refused to pay, Mr. Tocco told Bills that Pasek Tr. Vol. 4 at 319. Consequently, Bills set fire to the garage at Pasek's parents' home, where Pasek kept his favorite Cadillac. Pasek then resumed making payments of street tax.
meeting with the mayor of Chicago Heights, at which the Mayor told Panice that it was unlikely he would get a license. After the meeting, Mr. Tocco told Panice he would see what he could do. In a few weeks, Panice was granted a license to serve liquor until 2:00 a.m. Later he was given a 4:00 a.m. license. Four or five months after Panice was given the license for the Show Club, Mr. Tocco came to the Show Club and announced that he and Panice were now partners and that Panice would have to pay him $4,000 a month. Panice agreed. He testified that Mr. Tocco never threatened him, that he was not in fear of Mr. Tocco, and that he understood that the purpose of the payments was to "help keep my license," Tr. Vol. 9 at 1528, or to "protect my license." Id. at 1568. Panice made the payments until the Show Club was raided by the FBI in August 1984, after which business fell off and Panice became embroiled in legal problems
At trial, evidence was also presented concerning four murders. Dino Valente, the owner of a vending machine business, refused to cede his vending machine routes to Mr. Tocco. According to the testimony of Robert Hardin, Mr. Tocco had Valente shot to death one night after meeting with Mr. Tocco at a restaurant owned by Mr. Tocco. After the murder, Mr. Tocco bought Valente's vending machine routes from Valente's widow. Hardin also testified that he helped Nick D'Andrea murder August Maniaci in Milwaukee. Maniaci apparently owed Mr. Tocco money. According to Hardin, this murder was also committed at Mr. Tocco's direction. William Dauber and his wife were murdered on orders from Mr. Tocco after Dauber began cooperating with the FBI. Dauber's car was run off the road, and he and his wife were shot to death. Mrs. Tocco testified that Dauber had told her that he knew he was going to be "whacked" and that Mr. Tocco "would be the one to do it." Tr. Vol. 14 at 2535. Mrs. Tocco also testified that Mr. Tocco told her that Dauber was killed because he was a "snitch" and had been "stepping on too many people's toes." Id. at 2537.
Mr. Tocco flew to Greece on September 17, 1988, after withdrawing hundreds of thousands of dollars from his bank accounts. He was indicted on October 17 and failed to appear for his arraignment. When Mr. Tocco's eight-year-old son was sent to Greece to join him, FBI agents discovered Mr. Tocco's whereabouts. Mr. Tocco was expelled from Greece. He flew to Rome and, accompanied by FBI agents, returned to the United States, where he was placed in pre-trial detention at the Metropolitan Correctional Center in Chicago. While in pre-trial detention he instructed his wife to pass along a message to two of his associates that it would be "nice" if Panice (the owner of the Show Club who made monthly payments to Mr. Tocco) had a heart attack. Tr. Vol. 14 at 2567. Mr. Tocco also asked his wife to have one of his associates arrange for another prospective witness, Joseph Badali, to change his testimony. Tr. Vol. 15 at 2598-99.
On December 7, 1989, a jury found Mr. Tocco guilty of thirty-four of the counts charged. The district court subsequently sentenced Mr. Tocco to 200 years' imprisonment and also imposed a substantial fine. Mr. Crockett was found guilty on twenty-three of the counts charged against him, and the district court sentenced him to twenty years' imprisonment. Both Mr. Tocco and Mr. Crockett now appeal their convictions.
Mr. Tocco presents several arguments in this appeal. He argues that Count One (RICO conspiracy) of the indictment was insufficiently specific in defining the pattern of racketeering activity alleged and that it was constructively amended at trial. Mr. Tocco also contends that the admission of certain evidence was erroneous because its probativeness was outweighed by its prejudicial effect. Additionally, Mr. Tocco challenges the sufficiency of the evidence on several of the extortion counts and on the relation of certain predicate acts to the RICO enterprise. In his final argument, Mr. Tocco raises a constitutional challenge to the district court's decision to impanel an anonymous jury.
Mr. Tocco challenges his conviction on Count One (RICO conspiracy) on several grounds. First, Mr. Tocco contends that the trial court erred in not dismissing the RICO conspiracy count; he argues that, because the count failed to specify the acts that comprised the pattern of racketeering activity, it did not state an offense under 18 U.S.C. § 1962(d). Second, he challenges the admission of evidence concerning two murders not specified in the indictment as part of the pattern of racketeering alleged under Count One. He submits that the admission of this evidence resulted in a constructive amendment of the indictment. Third, he contends that this evidence was extremely prejudicial and therefore its admission was erroneous under Federal Rule of Evidence 403.
Given the nature of Mr. Tocco's contentions, we initially...
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