U.S. v. Muscarella, s. 77-2120

• Decision Date: 20 October 1978
• Docket Number: Nos. 77-2120,s. 77-2120
• Citation: 585 F.2d 242
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred MUSCARELLA, Carl Veller, Anthony Vymola and Ronald More, Defendants- Appellants. to 77-2122.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 242

585 F.2d 242

UNITED STATES of America, Plaintiff-Appellee, v. Fred MUSCARELLA, Carl Veller, Anthony Vymola and Ronald

More, Defendants- Appellants.

Nos. 77-2120 to 77-2122.

United States Court of Appeals, Seventh Circuit.

Argued May 25, 1978.

Decided Sept. 20, 1978.

Rehearing and Rehearing En Banc Denied Oct. 20, 1978.

Patrick A. Tuite, Chicago, Ill., Julius L. Echeles, Chicago, Ill., John T. Theis, William J. Martin, and Robert A. Merrick, for defendants-appellants.

William G. Otis, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before SPRECHER and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Following a jury trial, defendants-appellants Muscarella, Veller, Vymola and More were convicted of conspiring to and using extortion to collect a gambling debt in violation of 18 U.S.C. §§ 2 and 894. ¹ In challenging their conviction on appeal the defendants present the following questions: (1) whether the evidence was sufficient to support the convictions; (2) whether the conduct of the prosecution constituted a deprivation of the defendants' right to a fair and impartial trial; (3) whether the trial court abused its discretion when it denied the defendants' request to see and use the prior criminal record of the prosecution's chief witness; (4) whether the trial court's jury instructions were correct; (5) whether the trial court erred in its separation procedures; and (6) whether the facts of this case constitute an 18 U.S.C. § 894 violation. We affirm.

I. Sufficiency of the Evidence

Because the appellants challenged the sufficiency of the evidence, we set it forth in some detail, noting the role each party played in the extortionate transactions.

The incident resulting in these convictions occurred during a one week period in March, 1977. Ronald More owned the Embassy Carpet Company in Chicago; however, as a sideline business he ran a gambling operation. One of his clients in the gambling operation was Warren Davies, the extortion victim in this case, who owed More as much as $10,000 on his losing bets. Richard Moore, a gambling acquaintance of Ronald More, was the chief prosecution witness. ² Muscarella, Veller and Vymola were Chicago policemen assigned to the district encompassing Ronald More's business. They were acquainted with More and would often stop by his store during the day when they were on duty. Vymola on occasion patronized More's sideline enterprise.

In March, 1977, Davies placed a bet with Ronald More. More informed Davies at that time that he expected payment on Davies' other debts and instructed Davies to deliver the money to "Tony the Cop" at a professional basketball game Davies was to attend that evening. Davies knew that the nickname "Tony the Cop" referred to Anthony Vymola because the two men had met through More on several occasions over the past two years. Although Davies told More he would pay Tony, he did not attend the game. The next day when Davies informed More he could not make good his debt he was told, "Okay, now now you owe me twice as much. You are dead." On a recent previous occasion More warned Davies that he should pay up because "I don't want to see you end up with your arms and legs broken, stuffed into a trunk at the airport." Davies decided that under the circumstances prudence dictated that he leave the area temporarily. He began to drive to California, but stopped near Denver and contacted FBI agents.

Meanwhile, to collect the debt, Ronald More enlisted the aid of Richard Moore, his gambling acquaintance. Ronald More had Richard Moore, posing as "Angelo," a fictitious mob's chief "collector," make phone calls to Davies' brother Tom and Davies' fiancee, Audrey. In making these phone calls veiled threats were made by Angelo regarding members of their families. The front window of the Davies' family business was smashed that same evening and inside Tom Davies found a brick and bottle that appeared to be a simulated molotov cocktail. Also, a window at his home was smashed that night. Angelo testified that More told him that his "copper friends" broke the windows.

The next day Davies flew back to Chicago on the advice of the Denver FBI. He checked into the O'Hare Hilton, and FBI agents moved into an adjoining room. Davies called More, and the FBI taped the threats made by More during that phone call. Angelo and More continued their threatening phone calls to Davies' brother and fiancee.

The following day More instructed Angelo to "get nasty with" Davies. Angelo told Davies that his brother's house and business would "go up in smoke" and that his fiancee's daughter would "disappear" if payment wasn't made. Davies called Angelo to say he was ready to tender partial payment. Around 5:00 p.m. Angelo called More for instructions, and a three-way conversation ensued between Angelo, More and a "Tony," identified to Angelo as one of More's "copper friends" who was there. Tony suggested that collection of the partial payment be made at the Golden Arch restaurant, across the street from More's business. Tony said "Carl" would act as lookout. At 6:30 p.m. Angelo called Davies and told him to be at the restaurant to 7:00 p.m. Davies did not show up but Carl Veller and Fred Muscarella did appear. At 6:40 that evening, FBI Agent Leraas began a surveillance on Embassy Carpet, and five minutes later saw Anthony Vymola and another man enter the store. Around 7:00 p.m. a series of calls were made to find out why Davies failed to show up at the restaurant. During a call by Angelo to More, there was another three-way conference between Tony, Angelo and More, during which Tony suggested that Davies should be tortured. Davies called later to say he would not come into More's neighborhood because he was afraid. More, Tony and Angelo worked out a plan whereby collection would be made that evening at the O'Hare Hilton where Davies was staying. ³ Richard Moore, "Angelo," testified that Tony suggested that if anyone got caught they should say they were helping a friend collect a legitimate debt and that they knew nothing about a gambling debt.

An FBI agent saw three men leave Embassy Carpet at 7:55 p.m. Around 8:30 p.m., an FBI agent observed Vymola listening at Davies' hotel room door and saw Muscarella pause by the door a short time later. Then Vymola left the hotel and went to his car, which was parked in the hotel's lot. Muscarella phoned Davies and told him to come downstairs to the lobby.

Davies met Muscarella and Veller in the lobby. The three men sat together but Davies refused to turn over any money, saying, "I ain't dealing with anybody but this guy Angelo. He is the guy who has been threatening everybody." Veller stood up then and walked around for a moment. Muscarella told Davies he would have to pay "to show good faith." Veller returned to the two men and asked Davies if it would "do any good if I said that I was Angelo." Davies questioned whether Veller was Angelo and continued his refusal to deal with the two men. Veller told Davies, "You are going to have to pay us the money to get Angelo off of your back."

While Muscarella and Veller were talking inside with Davies, Vymola and More were crouched outside behind Vymola's car. When they entered the car FBI agents arrested them at gunpoint. Observing the incident through the hotel lobby windows, Veller and Muscarella ran out to the car, shouting that they were Chicago police officers whereupon they were also arrested.

More testified at trial and admitted his involvement in the extortion, explaining that he was under pressure to pay his own "Chicago Crime Syndicate" debts. He testified that he had asked the policemen for help, but that they did not know the nature of the transaction in which they were involved. He also said he alone smashed Davies' brother's windows, and that he borrowed Veller's car to do it. ⁴

Muscarella's mother-in-law testified that on the evening the windows were broken, Muscarella had taken his son to the hospital to treat the boy's burned hand. She testified that following their return from the hospital he stayed with his son the rest of the night, and thus could not have been involved in the window smashing incidents.

Vymola's mother testified that her son picked up gifts at her house, which is 12 miles away from Embassy Carpet, around 5:45 p.m. the evening of the three-way phone conversations involving plans for the O'Hare Hilton collection. The defense argues that he could not have made the round trip in rush hour traffic in time to participate as "Tony" in the 5:00 p.m. phone call and then be seen entering the store at 6:45 p.m.

A. Anthony Vymola

The evidence amply demonstrates Vymola's involvement in the conspiracy and extortion. More told Davies that "Tony the Cop" would collect the debt at the basketball game. Davies testified he understood the nickname to refer to Tony Vymola whom he had met on previous occasions. More brought "Tony" into the first three-way conversation with Angelo by saying he wanted one of his "copper friends" who was there to take part in the call.

The jury could fairly infer that the "Tony" who took part in the telephone conversations was the same "Tony the Cop" who was to make the collection at the basketball game. Tony Vymola's appearance with his car at the O'Hare Hilton, after the "Tony" on the phone said he would drive there, supports the inference. The testimony of his mother only showed that it may have been difficult for him to have made the 24 mile round-trip in one and a half hours, ⁵ not that it was impossible. The jury was entitled to resolve any ambiguities raised by the testimony in favor of the government.

B. Fred Muscarella

The evidence set forth above shows Muscarella's involvement in the illegal transactions here. He was with Veller at the Golden Arch "drop" site. His fingerprints were on the bottle that was thrown through the window of the Davies' business...