U.S. v. Groff, s. 78-5437 and 78-5480

• Decision Date: 07 July 1981
• Docket Number: Nos. 78-5437 and 78-5480,s. 78-5437 and 78-5480
• Citation: 643 F.2d 396
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John M. GROFF and Curtis Turbyfill, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 396

643 F.2d 396

UNITED STATES of America, Plaintiff-Appellee, v. John M. GROFF and Curtis Turbyfill, Defendants-Appellants.

Nos. 78-5437 and 78-5480.

United States Court of Appeals, Sixth Circuit.

Argued April 1, 1980.

Decided Feb. 27, 1981.

Rehearing Denied July 7, 1981.

Howard Siegrist, Southfield, Mich., for appellant in case no. 78-5437.

James K. Robinson, U. S. Atty., Detroit, Mich., Marshall Tamor Golding, Washington, D. C., Sidney M. Glazer, Dept. of Justice, Appellate Section, Criminal Division, Washington, D. C., for appellee in both cases.

Thomas N. Howard, Francis Higgins, Detroit, Mich., for appellant in case no. 78-5480.

Leah A. Simms, Detroit Strike Force, Detroit, Mich., for appellee in case no. 78-5480.

Before WEICK, LIVELY and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Appellants John M. Groff and Curtis Turbyfill, with seven others, were named as defendants in a ten-count indictment charging substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d) (1976) (counts 1 and 2); three wire fraud offenses, 18 U.S.C. § 1343 (1976) (counts 3, 4 and 5); four extortionate credit collection offenses, 18 U.S.C. § 894 (1976) (counts 6 through 9); and one count of travel in interstate commerce to collect a debt by extortionate means, 18 U.S.C. § 1952 (1976) (count 10).

Turbyfill was charged in counts 1, 2, 3, 4, 7 and 8. Groff was charged in counts 1 and 2. The trial court dismissed the wire fraud charges (counts 3 and 4) against Turbyfill and the jury acquitted him of the extortionate credit collection charges (counts 7 and 8). He was convicted, however, on the substantive and conspiracy racketeering enterprise charges (counts 1 and 2). Groff was convicted of the substantive racketeering enterprise offense (count 1), but was acquitted of conspiracy (count 2).

Both appeals challenge the sufficiency of the evidence to sustain appellants' conviction and Groff further alleges that the indictment was insufficient to inform him of the charges against him. We disagree and affirm.

I.

Turbyfill was involved in the "scams" run on Charles Wicks, Kenneth Pichette and Gordon Glaser, while Groff was involved only with the scam on Wicks. These scams took place in the context of a much larger enterprise which is detailed in the opinion filed in the companion case, United States v. Morelli, No. 79-5031, 643 F.2d 402 (6th Cir.), also decided today. The evidence produced at trial depicted Turbyfill's and Groff's involvement with the enterprise's scams as follows.

Luca and LaPuma met with Groff at a bar on a visit to Warren, Ohio. While at the bar, Groff introduced them to Charles Wicks, whom Groff had known for some time. After Wicks left, Groff suggested to Luca and LaPuma that they could cheat Wicks at cards. On a later visit to Warren, Ohio, during which Turbyfill accompanied Luca, a card game with Wicks was arranged. Both Groff and Turbyfill acted as players. Wicks lost more than $10,000 in this game. Since Wicks was able to pay only $200 to $300 at the time, Groff assured the others that he would call or see Wicks about picking up the balance.

Later, Turbyfill again accompanied Luca to Warren, Ohio, this time to pick up a $3,000 to $4,000 payment on the debt. Luca then informed Wicks that the Groff brothers would pick up the rest. Luca engaged in numerous interstate telephone conversations with the Groffs concerning collection of Wicks' debt. Some time later, Wicks gave Groff a deed to some property. Groff and his brother sold the property and gave the proceeds to LaPuma, for which they received $1,000. The proceeds from the sale of this property were insufficient to satisfy Wicks' debt. Luca, Turbyfill and Vito Cappozoli then went to Warren, Ohio to intimidate Wicks into paying the debt. Cappozoli was dressed as, and apparently looked like, a mob hit man. They received a check from Wicks that later bounced. Eventually, the full debt was collected. Turbyfill also accompanied Luca and others to a racetrack in West Virginia to see Wicks. Another card game was played at the Waterford Inn. Wicks lost an additional $1,200 during this game and extortionate means were used to collect this debt.

Turbyfill played in other rigged card games in which the victims were bilked of substantial sums of money. He also participated in the collection of the resulting debts. In late 1971 or early 1972, Turbyfill played in a game at Luca's apartment in Warren, Michigan, during which Kenneth Pichette lost $3,000. Turbyfill later accompanied Luca on a few visits to collect Pichette's debt. Turbyfill also played in the second game that Luca and LaPuma set up At the close of the government's case, all defendants moved for a directed verdict of acquittal. In an extensive opinion delivered from the bench, Senior United States District Judge Ralph M. Freeman considered the motions of each defendant with respect to each count. Initially, he noted that both defendants agreed that the first two requirements of a RICO enterprise violation had been proven: the enterprise existed and it was engaged in and its activities affected interstate commerce. Judge Freeman then thoroughly analyzed the evidence against each defendant.

with Gordon Glaser. During this game, Glaser lost between $2,000 and $3,000. The next day, Turbyfill participated in a discussion with Luca and LaPuma concerning the best method for collecting Glaser's gambling debt. They decided that Luca should collect this debt. Extortionate efforts were eventually used to do so.

John Groff could not be convicted of the substantive RICO violation on the pattern of racketeering theory, Judge Freeman held. There was no evidence of Groff's involvement in the enterprise other than his participation in the extortionate credit collection alleged in count 7. Since this could establish only a single predicate crime, no pattern was shown on Groff's part. Groff could not be chargeable with the other predicate crimes committed by the conspirators because those crimes were not, in Judge Freeman's words, "in any way related to or a foreseeable result of the immediate purposes for which Groff joined the conspiracy, that being to win money from Wicks in a card game in Warren, Ohio." The jury could decide Groff's guilt on the substantive RICO charge under the collection of an unlawful debt theory, however, since there was evidence presented that Groff participated in the card game that led to Wicks' debt and since Groff received and sold certain property of Wicks to satisfy this debt.

The jury, Judge Freeman ruled, could find Curtis Turbyfill guilty of engaging in a pattern of racketeering activity, but only the conduct alleged in counts 7, 8, 9 and 10 could be used as the basis for such finding. Regarding count 7, sufficient evidence was presented that Turbyfill participated in the card game in Warren, Ohio which resulted in Wicks' debt, that he participated in conversations which dealt with ways to instill fear in Wicks to collect the debt, and that he accompanied Luca and Cappozoli on a trip to Warren, Ohio in an attempt to intimidate Wicks into paying the debt. Although Turbyfill did not directly participate in the extortionate debt collection alleged in count 8, the jury could reasonably infer from his involvement in the first Wicks scheme that he participated in the West Virginia card game knowing that any debt unpaid by Wicks would be the subject of a later extortion.

Turbyfill did not participate in the first card game with Glaser which gave rise to the extortionate credit collection alleged in count 9. Judge Freeman ruled, however, that the conduct alleged in count 9 could be used as a basis for establishing a pattern of racketeering activity on Turbyfill's part. Since Turbyfill participated in the second card game with Glaser, and since the jury could reasonably infer that extortion was a foreseeable result of attempts to obtain money from Glaser, it was a substantial crime committed in furtherance of the immediate objectives for which Turbyfill joined the conspiracy. Although Turbyfill did not directly participate in the interstate telephone calls from Luca to Wicks and the Groff brothers that led to the charges in count 10, there was substantial evidence from which the jury could conclude that Turbyfill traveled from Michigan to Ohio for the purpose of facilitating the extortion of Charles Wicks.

Judge Freeman also ruled, however, that the activities alleged in counts 3, 4 and 6 could not be used to establish a pattern of racketeering activity on Turbyfill's part. There was not enough evidence, in Judge Freeman's view, to connect Turbyfill with the two acts of wire fraud alleged in counts 3 and 4. Since the Pichette debt collection occurred prior to the Wicks and Glaser scams, Turbyfill could not have known at Finally, Judge Freeman held that the government could go to the jury with the RICO count against Turbyfill under the collection of an unlawful debt theory. There was evidence presented that Turbyfill accompanied Luca and Cappozoli to Warren, Ohio to collect the Wicks debt and that he accompanied Luca to Pichette's home to collect that debt. He also participated in the card game with Wicks in West Virginia and in the second game with Glaser. The collection of these unlawful debts was foreseeable.

the time of LaPuma's extortionate debt collection techniques. He could not, therefore, be held criminally liable for the extortionate acts in collecting the debt alleged in count 6.

Our view of the record convinces us that in considering and ruling upon the various motions for directed verdict, Judge Freeman used an abundance of caution and was always mindful of the dangers which attend prosecution under so broad an Act as RICO.

II.

The defendants principally complain that since they were not convicted of any of the predicate crimes alleged, it necessarily followed that they could not have...