U.S. v. Fiore

• Decision Date: 25 May 1999
• Docket Number: 98-1830,Nos. 97-3338,98-1829,s. 97-3338
• Citation: 178 F.3d 917
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Philip FIORE, also known as Pete, and Louis J. Bombacino, also known as John Lordo, also known as Louie, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F.3d 917

UNITED STATES of America, Plaintiff-Appellee, v. Philip FIORE, also known as Pete, and Louis J. Bombacino also known as John Lordo, also known as Louie Defendants-Appellants.

Nos. 97-3338, 98-1829, 98-1830.

United States Court of Appeals Seventh Circuit.

Argued Nov. 2, 1998.

Decided May 25, 1999.

Terry M. Kinney (argued), Mitchell A. Mars, Office of the United States Attorney, Chicago, IL, for plaintiff-appellee.

Robert A. Stevenson (argued), Palos Park, IL, for defendant-appellant.

Before CUMMINGS, ^* BAUER, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

On August 2, 1995, a federal grand jury returned an eleven-count indictment charging nine defendants, all members of the Calabrese Crew (the "Crew"), with racketeering, extortion, mail fraud, and tax violations stemming from a criminal loan-sharking enterprise. Two of the defendants named in the indictment, Philip Fiore and Louis Bombacino, were charged with racketeering, conspiracy, and extortion, pursuant to 18 U.S.C. §§ 894, 1962(d), stemming from their involvement in the Crew's loan-sharking activities. In addition, both were subject to criminal forfeiture. The indictment also charged Bombacino with two counts of witness intimidation, in violation of 18 U.S.C. sec. 1512(b)(3). Bombacino entered into a plea agreement. Fiore, on the other hand, proceeded to trial on the charges brought against him and was found guilty on all counts. We affirm.

I. BACKGROUND

The Crew is one of many street gangs within Chicago's organized crime world. During the 1980's, the Crew engaged in a variety of illicit activities, such as extortion, street tax collection, gambling, and loan-sharking. The Crew's loan-sharking operation consisted of collecting many high interest loans, commonly known as "juice loans," with either an implicit or explicit understanding that failure to repay the juice loan could result in severe injury or death to the borrower or his family.

Philip Tolomeo was a member of the Crew from 1978 until November 1988. In 1988, Tolomeo fled Chicago after embezzling money from other members of the Crew; an act of incredible courage or incredible stupidity. When Tolomeo fled, he took with him comprehensive records detailing his juice loan collections on behalf of the Crew. Tolomeo's records included the names of individuals from whom he collected, the interest rates of the juice loans, and the amounts turned over to his superiors in the Crew. When Tolomeo entered the Witness Security Program, he provided these records to the FBI.

At Fiore's trial, Tolomeo identified all the members of the Crew. Tolomeo also testified as to the hierarchy of the Crew, the jobs performed by each member, and his extensive role as a juice loan collector. According to Tolomeo's testimony, in 1983, Frank Calabrese, the leader of the Crew at that time, introduced Tolomeo to Fiore and instructed him to train Fiore in the juice loan collection business. While working under Tolomeo, Fiore became skilled in methods of debt collection, interest rate calculation, and bookkeeping.

Shortly after Tolomeo trained Fiore, Tolomeo fell out of favor with Frank Calabrese. As a result, Fiore was promoted and assumed Tolomeo's juice collection accounts. This promotion required Fiore to meet directly with Frank Calabrese to discuss juice loan activity. Meanwhile, Tolomeo, who now answered to Fiore, continued his collection activity but was closely scrutinized by Fiore and other members of the Crew. Soon thereafter, Tolomeo left the Crew and entered the Witness Security Program.

In the early 1980s, Bombacino, who had been working for another street crew at the time, approached Tolomeo and asked Tolomeo to relay his interest in working for the Crew to Frank Calabrese. Several years later, Bombacino met with Frank Calabrese and began collecting juice loans for the Crew. According to Tolomeo, Bombacino turned in the proceeds of his juice loan collections to Fiore.

Bombacino was a cavalier juice loan collector. He regularly carried a handgun and often displayed it while collecting juice loans. Bombacino frequently threatened juice loan debtors or their families with physical harm when the debtor was late on payments. Bombacino also used his organized crime connections to intimidate potential witnesses into silence. For example, Bombacino cautioned potential witnesses that the authorities could put him away, but they could never put the whole "outfit" away. Furthermore, when Bombacino learned that the FBI was investigating him for extortion, Bombacino advised his juice loan clientele to lie to federal agents in an attempt to derail the federal investigation. On one occasion, when an undercover agent attempted to arrest Bombacino, he led the agent and several local police officers on a high speed chase, racing across a local park where he tossed juice loan records, a hand gun, and an ankle holster from the window of his automobile; a chase that gives authenticity to some of Hollywood's favorite police chase scenes.

At Fiore's trial, several juice loan victims with whom Fiore and Bombacino did business testified as to their juice loan payments to both men. For example, Richard Bruno, a car salesman, testified to receiving a juice loan from Bombacino in the fall of 1990. Bruno borrowed $500 from Bombacino and paid weekly interest of $50. On one occasion, Bombacino directed Bruno to meet Fiore to make a payment on the loan. Bruno met Fiore who collected the payment for Bombacino. Bruno's name and telephone number were found in juice loan records recovered from a search of Bombacino's house and were also found in a green address book that police recovered from a search of Fiore's house. Throughout Fiore's trial, many juice loan debtors identified their names and phone numbers as names and numbers appearing in the green address book.

Frank Varchetto was another juice loan debtor who testified on behalf of the government. Varchetto testified that he received a juice loan from Bombacino. Varchetto further testified that on one occasion, Bombacino directed him to make a juice loan payment to Fiore. When Fiore came to accept the payment, Fiore cautioned Varchetto that he should lie to the FBI about Fiore's dealings with members of the Crew.

Fiore testified in his own defense at trial, claiming that Tolomeo forced him into becoming a juice loan collector for the Crew when he was unable to pay a juice loan that he had made with Tolomeo. In support of his coercion defense, Fiore claimed that Tolomeo showed him a gun once and he "sort of felt threatened." Fiore also claimed that on another occasion, Tolomeo stated that "things could happen" if Fiore did not repay him. Fiore further testified that Tolomeo left town, claiming that he would be gone for a couple of weeks, and asked that Fiore hold on to a green address book, several slips of paper, and some blank promissory notes. According to Fiore, Tolomeo never returned so he held on to Tolomeo's property until it was acquired by the FBI during the search of his house.

On May 1, 1997, the jury found Fiore guilty on all counts. The jury also returned a forfeiture verdict of $2,600,000 against him. On September 3, 1997, the district court sentenced Fiore to 120 months on each count to run concurrently, followed by three years of supervised release on each count, also to run concurrently. Fiore was also assessed a $5,000 fine.

On April 8, 1997, Bombacino pleaded guilty to all counts of which he was charged in the indictment. On February 7, 1998, the government filed an additional one-count information charging Bombacino with mail fraud. Bombacino pleaded guilty to the mail fraud information.

On March 18, 1998, the court sentenced Bombacino on both the racketeering and the mail fraud charges. With respect to the racketeering charges, the court sentenced Bombacino to 120 months of imprisonment on each count to run concurrently and a three-year term of supervised release. With respect to the mail fraud information, the district court sentenced him to 24 months of incarceration, consecutive to the sentence imposed for the racketeering charges, a three-year period of supervised release, and ordered restitution in the amount of $2,328.

Fiore appeals both his conviction and sentence while Bombacino only appeals his sentence.

II. DISCUSSION

A. Fiore's Request for a Coercion Jury Instruction

Fiore contends that the district court erred by denying his request for a jury instruction on coercion. A district court's decision that a defendant failed to present sufficient evidence to be entitled to a jury instruction on a particular defense theory is subject to de novo review. United States v. Bastanipour, 41 F.3d 1178, 1183 (7th Cir.1994). A defendant is entitled to an instruction on his theory of the case if: 1) the proffered instruction is a correct statement of the law; 2) the theory of defense is supported by the evidence; 3) the theory of defense is not part of the charge; and 4) the failure to include the instruction would deny the defendant a fair trial. United States v. Wilson, 134 F.3d 855, 865 (7th Cir.1998); United States v. Boykins, 9 F.3d 1278, 1285 (7th Cir.1993).

Coercion, also known as duress, is available only if the defendant establishes three elements: 1) an immediate threat of death or serious bodily injury; 2) a reasonable fear that the threat will be carried out; and 3) no reasonable opportunity to avoid the threatened harm other than by committing the criminal act charged. United States v. Sotelo, 94 F.3d 1037, 1039 (7th Cir.1996). A defendant is entitled to an instruction of coercion only after he has produced sufficient evidence from which a rational jury could find all the elements of the defense. Id.

In the immediate case, the record does not support the elements of the coercion defense. As a matter of fact, Fiore's own testimony negates the existence of the first element--an immediate threat of death or serious bodily...