U.S. v. Joseph

• Decision Date: 16 January 1986
• Docket Number: No. 85-1144,85-1144
• Citation: 781 F.2d 549
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank JOSEPH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 549

781 F.2d 549

UNITED STATES of America, Plaintiff-Appellee, v. Frank JOSEPH, Defendant-Appellant.

No. 85-1144.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 3, 1985.

Decided Jan. 16, 1986.

Hugh M. Davis, Detroit, Mich., for defendant-appellant.

David J. McKeon, Maura Corrigan, Detroit, Mich., William C. Bryson, Dept. of Justice, Washington D.C., for plaintiff-appellee.

Before MARTIN and CONTIE, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Frank Joseph appeals from his convictions for violation of 18 U.S.C. Secs. 894, 1962(c), (d). For the reasons that follow, the convictions pursuant to 18 U.S.C. Secs. 894, 1962(c) are reversed and the conviction pursuant to 18 U.S.C. Sec. 1962(d) is remanded to the district court for proceedings consistent with this opinion.

I.

On March 21, 1984, defendant Frank Joseph was indicted in three counts for violation of 18 U.S.C. Secs. 894, 1962(c), (d). Count I enumerated the Sec. 1962(c) violations. This count alleged that Joseph, together with Thomas Tripp, Robert J. Doniere, Dean E. Knopp, Samuel Giordano, Anthony Palazzolo, Donald R. Christy and David G. Dewood, Jr., was engaged in an "enterprise" pursuant to 18 U.S.C. Sec. 1961(4) for the purpose of engaging in violations of Ohio Rev. Code Sec. 2915.02, Mich. Comp. Laws Ann. Sec. 750.157a(b), .301, .314, 18 U.S.C. Secs. 891-894, 18 U.S.C. Sec. 1952, 18 U.S.C. Sec. 1961(6), and 18 U.S.C. Sec. 2421. As part of this "enterprise," the indictment listed twenty "unlawful debts," 18 U.S.C. Sec. 1961(6), which the defendants had collected. Count I specifically alleged that Joseph had conspired to violate Michigan gambling laws and had unlawfully attempted to collect an extension of credit from Gerald Briskin, M.D., in violation of 18 U.S.C. Sec. 894. Count II alleged that the defendants violated 18 U.S.C. Sec. 1962(d) by conspiring to collect debts incurred in gambling schemes which violated Ohio and Michigan gambling laws. This conspiracy was allegedly effected through high stakes card games using a rigged deck. Count IV alleged that Joseph violated 18 U.S.C. Sec. 894 by unlawfully attempting to collect an extension of credit from Gerald Briskin, M.D., by impliedly threatening to cause harm to Briskin if he failed to pay the extension of credit.

Joseph's counts were tried to the court September 5, 1984 to September 24, 1984. The following evidence was received at trial.

Robert Doniere testified that Joseph was involved in setting up a card game in which a jeweler, Joel Watnick, lost four or five thousand dollars. Doniere also stated that Joseph made unsuccessful attempts to lure a dentist from Michigan and a television salesman into card games.

Joel Watnick testified that Joseph introduced him to Doniere. Watnick claimed that Doniere induced him to attend a card game in which he lost three thousand dollars. He stated that Joseph was not at the game and that he paid the losses to Doniere.

In a proffer of testimony in chambers, Gerald Briskin testified that in the fall of 1980 he became involved in a card game with Frank Joseph, Larry Lang, and others including someone who looked like Thomas Tripp. After the card game Briskin wrote out an IOU for $154,000, half of which was Briskin's liability and the other half, Lang's. Briskin testified that Joseph was dealing, and that, at that time, he met Tony Palazzolo. Briskin stated that although he had not met Palazzolo before the card game, he "had heard vague rumors that he was connected with what purported to be organized crime, that he was a gambler." On the evening of the game, Palazzolo gave Briskin his card and Briskin called him because he "thought that he might be influential," although he "had no facts regarding his connections." Further, "[h]e [Palazzolo] was the only person at that card game that was friendly." Briskin testified that he later contacted Palazzolo because "[h]e said he might be helpful in the matter, and I had known a cousin of his, which I had known prior to the time of the game, and Tony had been very friendly and he said if he could be helpful, call him, so I called him and we had dinner together." Briskin and Palazzolo discussed the debt and Palazzolo indicated that he would attempt to intervene. Later Briskin met with Joseph and Palazzolo at the Host Hotel at Metropolitan Airport. Palazzolo was "neutral," Briskin testified, and said little. Briskin testified:

Q What was the reputation of Mr. Palazzolo?

A Again, it was a vague kind of thing, and it was essentially that he had Mob connections and gambled.

Q What was Mr. Palazzolo's reputation, to your knowledge, regarding collection methods?

A I had no knowledge of that.

Q Did Mr. Palazzolo ever advise you that he was connected with what you call the Mob?

A No.

Q Did Mr. Joseph ever represent to you that Mr. Palazzolo was connected to anybody?

A No.

Q Did Mr. Joseph ever ask Mr. Palazzolo to sit down and talk with you concerning a gambling debt?

A Not in my presence.

Briskin indicated that he had treated a relative of Palazzolo some years earlier, and, therefore, told Palazzolo that he owed him a favor. Palazzolo never threatened Briskin, nor did Joseph. However, Joseph "was angry, he was demanding, he wanted to know what I was going to do about the money."

Under further examination by the court, Briskin testified that he went to Palazzolo because he thought Palazzolo could help him resolve his debt. Briskin testified that his knowledge of Palazzolo's reputation did not cause him to fear Joseph.

The district court found Briskin's testimony regarding Palazzolo's reputation inadmissible. The court held:

If Palazzolo's position as a member of the Mob put fear into him and this reputation supported any effort Joseph made to collect, then I think it would be clearly relevant and then we would have to go to the 403 weighing of prejudice against probative. But, if what he heard about the Mob had nothing to do with whether he would or would not pay Joseph, it is not relevant. So, therefore, I will sustain the objection and you may not ask the question.

In his in-court testimony, Briskin testified that in September 1980 Larry Lang invited him to a meeting to discuss investment in a casino in the Dutch Antilles. The meeting was held at an apartment in Southfield, Michigan. Joseph was playing poker when Briskin arrived. Lang introduced Briskin to Palazzolo. When Briskin questioned Lang about the investment, Lang asked Briskin to play his hand while he made a call. Briskin won some money then Lang resumed play. Later Lang asked Briskin to play his hand. Briskin received a strong hand, and, when the betting escalated, asked Lang to return to the game. Lang refused to return and Briskin resumed play. After Lang again refused to return, Briskin finished the hand and was beaten by Joseph. Lang and Briskin signed an IOU for $154,000 with each liable for half. Lang was upset and had to be restrained by Palazzolo who said something about "Frank Joseph was connected with the Josephs that had an investment in the Aladdin Hotel and don't get rough."

Briskin received a call from Joseph asking Briskin to come to his restaurant. Joseph asked Briskin to sign some blank checks, which Briskin refused, and to provide a financial statement. Briskin took the position that the debt was Lang's, not his, but he did leave Joseph with a book contract worth $30,000. Briskin later called Palazzolo and met him for dinner at which time Palazzolo indicated "he would see what he could do." Joseph, Palazzolo, and Briskin met at the Host Hotel at Metropolitan Airport. Palazzolo was just an observer and Joseph was angry when Briskin denied the debt. Joseph and Briskin had further contacts but when Briskin could not come up with the money, Joseph said "forget it."

About the situation, Briskin testified: "I felt threatened but I was never really threatened. I was, you know, I was apprehensive and I was uncomfortable.... It was all in my own mind." Briskin stated that he was never overtly threatened. Further, "it was a very uncomfortable feeling to have someone calling and demanding money and I, you know, I just felt uncomfortable and it was to me an uncomfortable threatening kind of situation. I had no idea what was going to happen and the ambiguity and uncertainty of it created the sense of threat that I felt." Briskin testified that Joseph never threatened violence to his person. Joseph displayed his anger by his tone of voice and "[h]is movements became a little more obvious but that is all."

On September 24, 1984, the district court entered findings pursuant to Fed.R.Crim.P. 23(c). The court found Joseph guilty of attempting to collect an extension of credit by extortionate means pursuant to 18 U.S.C. Sec. 894. The court noted that, in the recorded conversations, there was constant pressure by Joseph on Briskin to pay the debt. The court held that "[t]he test to be used is whether an ordinary person in Briskin's shoes would have been in fear of present or future violence. The test is an objective one, not a subjective one." The court found that the definition of "extortionate" in 18 U.S.C. Sec. 891(7) had been met due to implicit threats of violence. Specifically,

[T]he court reaches this conclusion because of the intervention of Palazzolo in the matter, the bringing of Palazzolo into it, the references to the mob, the knowledge of Briskin that Palazzolo was a member of the mob, the repeated demands of Joseph for payment, the angry actions of Joseph, and Briskin's statement that he did feel threatened because of the ambiguity and uncertainty of the situation.

The court also found Joseph guilty of a substantive RICO violation pursuant to 18 U.S.C. Sec. 1962(c). The court found that Joseph was associated with an enterprise which affected interstate commerce. The court found the requisite two predicate acts necessary for a pattern of racketeering activity in the violation of...