U.S. v. Esposito
| Decision Date | 18 September 1985 |
| Docket Number | 84-1126 and 84-1612,Nos. 83-3233,s. 83-3233 |
| Citation | 771 F.2d 283 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank Rudolph ESPOSITO and Richard Piekarski, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gerald M. Werksman, Chicago, Ill., Frank Oliver, Northfield, Ill., for defendants-appellants.
James B. Meyer, Asst. U.S. Atty., R. Lawrence Steele, Jr., U.S. Atty., Hammond, Ind., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.
Defendant Piekarski was convicted of five violations of the Hobbs Act (18 U.S.C. Sec. 1951) and one violation of the Travel Act (18 U.S.C. Sec. 1952). Defendant Esposito was convicted of seven violations of the Hobbs Act and four violations of the Travel Act. Each was sentenced to twenty years imprisonment on each of the Hobbs Act counts, with the sentences to run concurrently, and to five years on the Travel Act counts, to run concurrently with each other, but consecutively to the twenty-year terms. They appeal.
There was ample evidence that defendants attempted extortion of money from Timothy Janowsky who did business in Indiana and that Janowsky made purchases in interstate commerce. There was ample evidence that each defendant travelled from Illinois to Indiana with the intent to extort. Their arguments on appeal rest on other facts of the indictment and trial which will be described in the course of discussion of the respective points.
Each Hobbs Act count alleged that Janowsky did business as Geno's Vending in Merrillville, Indiana, a business engaged primarily in supply and servicing, via delivery vehicles, coin-operated vending machines and electronic amusement machines in the Northwest Indiana area; that the vehicles, machines, and associated equipment and supplies would move into Indiana for sale to and use by Geno's Vending; that defendants attempted to affect the movement of these machines and vehicles by extortion; that they attempted to obtain from Janowsky, doing business as Geno's Vending, 50% of the profit realized by Janowsky, doing business as Geno's Vending, derived from electronic game and amusement machines leased from or operated by Geno's Vending.
The claim of variance arises in part from the evidence that the extortionate demands were for 50% of the profits from electronic poker machines used for gambling, whereas the indictment charges a demand for 50% of the profit derived from electronic game and amusement machines. Janowsky also supplied other types of coin-operated machines, and derived proceeds which were not included in the extortionate demands.
There was testimony that electronic poker machines are amusement machines. Giving the words their ordinary meanings, an electronic poker machine appears to be a type of electronic game or amusement machine even though the poker machine has features which make it more useful than others as a gambling device. Defendants argue that the poker machine is not an amusement device because under an Indiana statute, Ind.Code Ann. 35-45-5-1 (Burns 1985), an electronic poker machine would be classified as a gambling device and distinguished from "pinball machines and similar amusement devices." The Government tells us that whether an electronic poker machine is a per se gambling device under the cited statute is an unsettled controversy in Indiana. In any event, the Indiana statute does not control the definitions for the purpose of the meaning of the indictment in the instant case.
The remaining claim of variance arises from the evidence that Janowsky not only owned and operated an establishment known as Geno's Vending in Merrillville, as alleged in the indictment, but also Blackbeard's Arcade in Crown Point. The poker machines and other goods were purchased in interstate commerce in the name of Geno's Vending. The Government asserts that:
The evidence at trial showed that the electronic poker machines were purchased by Geno's Vending, shipped to Geno's Vending, paid for by Geno's Vending, and the profits derived therefrom were considered profits of Geno's Vending. The proof at trial was that the receipts from all gaming machines (video games and electronic poker machines) were combined and considered profits of Geno's Vending.
Appellee's Br. at 21-22. Defendants point to evidence that proceeds from the electronic poker machines, used as gambling devices, were not handled and recorded in the ordinary course at the Geno's Vending establishment. They were taken to Janowsky's home, and counted and recorded by him and his wife. Some, perhaps, were included as receipts of Blackbeard's. Defendants appear to consider Geno's Vending as an entity, Blackbeard's Arcade as a different entity, and each as separate from Janowsky, the individual who owned and operated them. They argue that the indictment alleged Geno's Vending was the "victim" of the attempted extortion, but the proof showed a different "victim," Janowsky, who did not purchase goods in interstate commerce. This distinction between Janowsky and the business he conducted is insignificant for present purposes. If the extortion had been successful, Janowsky would have given up substantial sums of money, and his capacity to purchase goods in interstate commerce would have been curtailed, whether or not the flow of money had nominally gone through his Geno's Vending establishment, and whether or not the goods purchased in interstate commerce would continue to be purchased in the name of Geno's Vending. Any variance did not affect an essential element of the offense nor impair the substantial rights of either defendant. United States v. Cina, 699 F.2d 853, 856-58 (7th Cir.1983). Defendants had adequate notice of the charges and their protection against second prosecution for the same offense was not impaired.
In furtherance of defendants' theory that the funds to be extorted did not belong to Geno's Vending they subpoenaed Janowsky to produce the records of Geno's Vending. He was unable to produce the poker machine records, and testified that he had burned them after he was first approached by defendants. Defendants had demanded a list of the locations of the electronic poker machines. After receiving the subpoena he had defaced some of his checks and bank records, allegedly because he did not want defendants to get a list of his accounts and account numbers.
Defendants' motion to dismiss based on this destruction of evidence was denied. They also requested an instruction that:
When a witness is shown intentionally to have destroyed, altered or defaced evidence, which, were it produced in its original undamaged form would be expected to support his testimony, his destruction or alteration thereof gives rise to a presumption that the evidence, were it available in its undespoiled form, would contradict and rebut the testimony of the witness who despoiled it.
(Emphasis added.)
The district judge refused the instruction, ruling that the destroyed records were irrelevant, apparently upon reasoning, similar to ours in finding no variance, that it made no significant difference whether the poker machine proceeds were accounted for in the ordinary course of bookkeeping of Geno's Vending, or separately received and recorded by Janowsky.
In any event, Janowsky's destruction of evidence did not entitle defendants to dismissal nor to the instruction requested.
In brief, the spoliation doctrine relied on applies to a party, not a witness who is not a party, and there is no suggestion here that the Government or its agents participated in Janowsky's destruction nor condoned it. In addition to an intentional destruction, bad faith must be shown. And if the doctrine applied, it would give rise to an inference, not a presumption.
As Wigmore states the spoliation doctrine,
[A] party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit.
2 J. WIGMORE, EVIDENCE Sec. 278 (Chadbourn rev. 1979) p. 133 (emphasis omitted). This court has noted that the spoliation doctrine applies if two conditions are met. S.C. Johnson & Son v. Louisville & Nashville R. Co., 695 F.2d 253, 258 (7th Cir.1982). A party must destroy evidence, and its destruction must have been in bad faith. Id. See Coates v. EEOC, 756 F.2d 524, 550-51 (7th Cir.1985).
Appellants contend that the district court erred in denying their motion to dismiss which alleged that Janowsky's business was not protected under the Hobbs Act, 18 U.S.C. Sec. 1951, because the evidence established that he was involved in some illegal activities. This circuit has held that the Hobbs Act was not limited to wholly legitimate operations, but extends to "mixed legal-illegal business ventures." United States v. Blakey, 607 F.2d 779, 783 (7th Cir.1979).
Blakey controls this case. Indeed, even if Janowsky's business had been totally illegal the Hobbs Act would apply. United States v. Ambrose, 740 F.2d 505, 511-12 (7th Cir.1984); United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1189, 75 L.Ed.2d 435 (1983).
Defendants employed Dennis Burke, a private investigator, to assist them in preparing their defense. Burke assigned the case to Lawrence Polte, an employee. Six weeks before trial, Polte (who may no longer have been an employee) was arrested and charged under the Hobbs Act, apparently for an attempt to extort money from Janowsky. The charge was later...
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