U.S. v. DiPasquale

• Decision Date: 31 July 1984
• Docket Number: A,No. 83-1367,No. 83-1368,Nos. 83-1364,No. 83-1369,No. 83-1449,No. 83-1364,83-1365,No. 83-1365,83-1367,83-1364,83-1368,83-1369,83-1449,s. 83-1364
• Citation: 740 F.2d 1282
• Parties: 16 Fed. R. Evid. Serv. 499 UNITED STATES of America, Appellee, v. Anthony DiPASQUALE, Appellant inppeal of James DiPASQUALE, inAppeal of August REDDING, aka "Porky", inAppeal of John SERUBO, inAppeal of Peter SERUBO, inAppeal of Victor SZWANKI, into 83-1369 and 83-1449.
• Court: U.S. Court of Appeals — Third Circuit

Page 1282

740 F.2d 1282

16 Fed. R. Evid. Serv. 499

UNITED STATES of America, Appellee, v. Anthony DiPASQUALE, Appellant in No. 83-1364 Appeal of James DiPASQUALE, in No. 83-1365 Appeal of August REDDING, aka "Porky", in No. 83-1367 Appeal of John SERUBO, in No. 83-1368 Appeal of Peter SERUBO, in No. 83-1369. Appeal of Victor SZWANKI, in No. 83-1449.

Nos. 83-1364, 83-1365, 83-1367 to 83-1369 and 83-1449.

United States Court of Appeals, Third Circuit.

Argued March 1, 1984.

Decided July 31, 1984.

Rehearing and Rehearing In Banc Denied in Nos. 83-1364,

83-1365, 83-1368, 83- 1669 Aug. 28, 1984.

Rehearing and Rehearing In Banc Denied in No. 83-1449 Sept. 11, 1984.

J. Jeffrey Weisenfeld (argued), Goldberger, Feldman, Dubin & Weisenfeld, New York City, for appellants Anthony DiPasquale and James DiPasquale.

Edward Reif, Philadelphia, Pa., for appellant James DiPasquale.

Jeffrey L. Staniels (argued), Asst. Defender, Joseph M. Miller, Asst. Defender, Defender Association of Philadelphia, Philadelphia, Pa., for appellant August Redding.

Robert A. McAteer (argued), Baratta & Takiff, Philadelphia, Pa., for appellant John Serubo.

John Rogers Carroll (argued), Carroll & Carroll, F. Emmett Fitzpatrick, F. Emmett Fitzpatrick, P.C., Philadelphia, Pa., for appellant Peter Serubo.

Ronald Ervais (argued), Philadelphia, Pa., for appellant Victor Szwanki.

Edward S.G. Dennis, Jr., U.S. Atty., E.D.Pa., Philadelphia, Pa., Brenda Gruss (argued), U.S. Dept. of Justice, Washington, D.C., Ronald G. Cole, Sp. Atty., U.S. Dept. of Justice, Philadelphia, Pa., William C. Bryson, U.S. Dept. of Justice, Washington, D.C., for appellee.

Before SEITZ and GARTH, Circuit Judges, and PORTER, District Judge. ^*

OPINION OF THE COURT

SEITZ, Circuit Judge.

The six appellants were convicted and sentenced on one count of conspiracy to collect "claimed debts" by extortionate means in violation of 18 U.S.C. Sec. 894(a). Five of the six were convicted and sentenced on various counts of the underlying substantive offense, also in violation of section 894(a). We have appellate jurisdiction under 28 U.S.C. Sec. 1291.

I. FACTS

We adopt the district court's comprehensive and detailed narration of the facts, see United States v. DiPasquale, 561 F.Supp. 1338, 1341-46 (E.D.Pa.1983). An abridgment of the district court's presentation follows.

A. The Cosmo Incidents.

1. September and November 1979. In 1978 and 1979, Anthony DiPasquale, his brother James, and Michael Cosmo were engaged in the sale of "speed", or methamphetamine. Twice during the autumn of 1979, Anthony, assisted on one occasion by August Redding, forced Cosmo to pay thousands of dollars that Anthony claimed Cosmo owed him. The opinion of the district court, 561 F.Supp. at 1341-42, reflects the details of these first two incidents.

2. December 1979. Cosmo worked for a man who installed carpet, and in December 1979, Anthony asked Cosmo and his employer to carpet his basement. Anthony, Redding, and others played cards while Cosmo and his employer worked in Anthony's basement. When Cosmo attempted to leave the house, Redding and Anthony attacked him with fists, feet, and a fireplace poker, until Cosmo lost consciousness. He awoke in the basement, handcuffed to a pinball machine, with Anthony shouting that Cosmo would die. Cosmo agreed to borrow money to pay what Anthony claimed he owed. ¹ After Cosmo was taken upstairs, Victor Szwanki punched and tormented him. Cosmo was finally released, and he paid Anthony a few days later, after he obtained the money from his relatives.

Based on this incident, Anthony, Szwanki, and Redding were convicted of collecting a claimed debt by extortionate means.

3. January 1980. The following month, Szwanki, James DiPasquale, and two others visited Cosmo at his home. James demanded $25,000 that he claimed Cosmo owed Anthony. When Cosmo denied the debt, James and Szwanki beat and choked him. Although his attackers warned Cosmo not to contact the police, Cosmo reported the incident at his family's insistence. James called Cosmo and told him he would be killed, but for once Cosmo was fortunate.

B. The Kolzer Incident.

In December 1980, James Kolzer loaned Anthony $10,000 to finance Anthony's manufacture of speed. After they split the proceeds of a subsequent drug sale, Anthony claimed that Kolzer owed him $8,000. Kolzer denied the claim. In February 1981, Redding telephoned Kolzer, told him that he was calling at Anthony's behest, and requested $8,000 to get Anthony out of jail. Kolzer denied any indebtedness to Anthony and refused to pay.

Anthony and Kolzer subsequently discussed undertaking another drug deal, and Anthony arranged to meet Kolzer one night in March 1981. Anthony and Szwanki took Kolzer to Joseph West's auto body shop, where they drew their guns on him. Szwanki bound Kolzer, forced him to kneel, and put a bag over his head. Kolzer was beaten with what he believed to be a pipe. Anthony claimed Kolzer owed him $8,000, but demanded more in return for Kolzer's life. During the balance of the night, Kolzer was hung by a chain hoist, beaten repeatedly, and burned. He made telephone calls in an effort to raise money.

When the torture concluded, Anthony washed and bandaged his victim and had self-developing pictures taken of various combinations of Kolzer, Szwanki, and himself. Szwanki took Kolzer to a bar, where he made more telephone appeals for money. Later, Szwanki accompanied Kolzer to Western Union, where they picked up money that Kolzer had raised. Kolzer and Szwanki proceeded to another bar, where they met Anthony and Kolzer's cousin. The cousin provided additional funds, which were given to Anthony. Kolzer was then allowed to depart.

Based on this incident, Anthony and Szwanki were convicted on a second count of collecting a claimed debt by extortionate means.

C. The Crawford Incident.

Swain Crawford was a used car salesman at John's Chevrolet, a car dealership owned by John Serubo and perhaps by his father Peter, who was at least associated with the business. On May 9, 1981, Anthony told Crawford to go to John Serubo's office. In the office were Anthony, both Serubos, and another man, described as "burly". Anthony punched Crawford and asked why he had taken money from Peter Serubo. Anthony struck Crawford repeatedly and smashed a bottle over his head. Peter told Crawford that he owed the Serubos $1,800, and when Crawford denied it, Anthony put a gun to Crawford's head. Crawford telephoned a friend, who said she would make arrangements to get the money.

At Anthony's direction, the burly man and defendant Nicholas Fidelibus took Crawford to West's auto body shop. The men described a beating that Anthony had conducted at the garage and said that the victim had been hung from the hoist. Crawford telephoned his friend again, and she offered a diamond ring. After telephoning John Serubo, Fidelibus and Crawford picked up the ring and returned to John's office.

There, Anthony examined the ring and said that if it was worth less than $12,000, it was not worth Crawford's life. Anthony gave the ring to Peter and told Crawford to pay the $1,800 two days later. On the appointed day, Crawford paid the money to the Peter, and John returned the diamond ring. Peter had a check for $200 drawn to Crawford in payment of sales commissions then due. Crawford was required to endorse the check and to give it to John as payment to Anthony for his collection services.

Based on the Crawford incident, Anthony was convicted on a third count of collecting a claimed debt by extortionate means. John Serubo, Peter Serubo, and Nicholas Fidelibus were also convicted on this count. Fidelibus does not appeal.

D. The Rosetti Incident and the Courtney Incident. The Conspiracy.

The district court describes two further incidents, in which Anthony threatened Francis Rosetti and battered Mark Courtney until each agreed to pay money "owed" to the Serubos. See DiPasquale, 561 F.Supp. at 1345-46. Victor Szwanki was present during the Courtney incident, and the Serubos participated in both incidents.

Based on the various collection incidents, Anthony DiPasquale, Victor Szwanki, August Redding, James DiPasquale, John Serubo, and Peter Serubo were convicted on one count of conspiring to collect claimed debts by extortionate means. We turn now to the merits of their appeals.

II. MERITS

A. Extensions of Credit.

Title II of the Consumer Credit Protection Act, codified as chapter 42, 18 U.S.C. Secs. 891-896, establishes as federal crimes several types of extortionate credit transactions. The appellants stand convicted under section 894(a), which provides:

Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means

(1) to collect or attempt to collect any extension of credit, or

(2) to punish any person for the nonrepayment thereof.

shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.

Under the definitional section, "[t]o extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred." 18 U.S.C. Sec. 891(1).

Despite this sweeping definition, the appellants contend that the indictment did not charge, the district court did not properly define, and the evidence did not reveal, any extensions of credit. Above all else, the appellants deny that they made loans to their victims or that they agreed to defer the repayment of debts.

1. Sufficiency of the Indictment. The district court denied the appellants' pretrial motion to dismiss the indictment, which contains three separate counts that charge "the use of extortionate means ... to collect and attempt to collect a claimed debt ... and to punish [the victim] for the non-repayment thereof." In similar language, the fourth count charges a knowing conspiracy to...