U.S. v. Natale

• Citation: 764 F.2d 1042
• Decision Date: 20 June 1985
• Docket Number: No. 84-1699,84-1699
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. NATALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1042

764 F.2d 1042

UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. NATALE, Defendant-Appellant.

No. 84-1699.

United States Court of Appeals, Fifth Circuit.

June 20, 1985.

Anthony J. Natale, pro se.

Kerry P. FitzGerald, Dallas, Tex., for defendant-appellant.

James A. Rolfe, U.S. Atty., Christopher Lee Milner, Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, POLITZ and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Anthony J. Natale and codefendants, George Malina and Albert Wash, were charged in a two-count indictment arising out of the use of strong-arm tactics to collect an alleged debt. Natale, Malina and Wash were charged in Count I with conspiracy to collect an extension of credit by extortionate means, in violation of 18 U.S.C. Sec. 894, and in Count II with the use of extortionate means to attempt to collect an extension of credit, in violation of 18 U.S.C. Sec. 894 and 2. After a joint jury trial, Natale was acquitted on Count I but found guilty on Count II; Malina and Wash were acquitted on both counts. The district court imposed a sentence on Natale of five years, with the condition that he be confined for a period of six months with the remainder of the term to be served on probation, and a fine of $5,000.

Natale challenges his conviction on the grounds that there was insufficient evidence to establish that an extension of credit was made, and that the district court's supplemental instruction to the jury was not responsive to the jury's question. We have reviewed each of Natale's arguments, and for the reasons we explain in detail below, affirm his conviction.

I

Gary Barnhart was the owner and operator of the English Garage, a business engaging in the repair and restoration of imported classic automobiles such as Jaguars and Rolls Royces. In April of 1983, Natale, one of Barnhart's customers, discussed with Barnhart the possibility of restoring a 1955 Aston Martin owned by Barnhart. Natale told Barnhart of an acquaintance, Jim Graham, who could provide Barnhart with the capital needed for the restoration. Sometime later, Barnhart entered an unwritten business agreement with Natale pursuant to which Graham advanced $8,000 to Barnhart; in exchange Barnhart agreed to give Graham half the profit from the sale of the car. Natale received a $2,000 fee from Barnhart for his services.

Barnhart and Natale entered into a similar arrangement regarding two Jaguars that Barnhart had purchased in May 1983. Under the terms of the agreement Barnhart received $10,000 from Graham to repair the two Jaguars. The transaction was again conducted through Natale who received a second fee of $1,000.

Natale and Barnhart met frequently over the next several months, discussing the restoration of the automobiles. Natale, however, became concerned that the restoration was progressing too slowly and on October 25, 1983, Natale wrote Barnhart, stating:

I can no longer tolerate the situation with the phantom Aston Martin, & the two Jags. I need my money back & the $1000 you promised for advancing the money on the first deal. If this does not happen in 10 days, the $ back or the cars produced plus their [unencumbered] titles then I will very swiftly come down on you with the full weight of the law .... (Emphasis added.)

Natale sent a second demand letter to Barnhart on November 1, which stated: "This is my second written attempt to elicit a response from you--in addition to many phone calls. I want the money paid you for two Jaguars and one Aston Martin ...."

On November 7, 1983, Natale filed a criminal complaint with the Dallas County District Attorney. The complaint stated the terms of the joint venture agreement, and charged that Barnhart had not complied with the agreement. The district attorney declined to take any action and advised Natale to pursue the action in civil court.

By March 1984 the automobiles still had not been restored, and Natale had not received a refund of the money that Graham had invested in the cars. Natale then informed Barnhart that Graham was getting impatient, and that if Barnhart did not refund the money very quickly, Graham's "axe squad" would attempt the collection. Natale also told Barnhart that he knew of a man who was put in the trunk of his car with a bullet in his head for failing to repay Graham.

In the meantime, Barnhart was contemplating the sale of his business for reasons not directly related to the Graham debt. Barnhart and Natale discussed on several occasions during March the sale of Barnhart's business to a Mr. Gilbert, another acquaintance of Natale. Natale was apparently acting as a middleman, and Barnhart provided Natale with financial statements regarding the business's operations, financial position, and the European companies Barnhart used in connection with importing the automobiles. The proposed sales agreement, pursuant to an understanding with Natale, also provided for the repayment of the Graham loan as a condition of the sale.

Natale and Barnhart arranged a meeting on March 30, 1984 at the Amore Restaurant in Dallas to discuss further the plans regarding the sale of Barnhart's business. When Barnhart arrived at the restaurant, Natale was already seated at a table; two men, later identified as codefendants Malina and Wash, were seated at an adjoining table. Barnhart joined Natale who asked him if he had brought the money that Barnhart owed Graham. When Barnhart replied that he had not, Natale said that he was "sorry for what's about to happen." Wash and Malina then came over to Natale and Barnhart. Wash put one arm around Barnhart's shoulder and held a revolver against Barnhart's ribs. Malina then instructed Barnhart to bring the money in cash back to the restaurant on the following Tuesday (April 3).

Worried, and apparently having difficulty coming up with the money, Barnhart spoke to Natale on the telephone on Sunday, April 1. During their conversation, Natale assured Barnhart that if Barnhart raised the money, Wash and Malina would not harm him. Although Barnhart attempted to raise the money to pay Graham, by Tuesday, April 3 he had only raised approximately $2,800. On the afternoon of April 3, Barnhart went to the Federal Bureau of Investigation for assistance.

FBI agents wired Barnhart with a tape recorder and instructed him to meet with Wash and Malina as planned. Barnhart then went to the restaurant where he met Wash and Malina who asked Barnhart if he had brought the money. When Barnhart replied that he did not have it all, Wash and Malina told Barnhart that if he saw Natale, he should tell Natale that he had been beaten for not paying the full amount. At the conclusion of the meeting, Wash and Malina were arrested.

Later, Natale was arrested. All three defendants were then indicted by a federal grand jury sitting in Dallas, Texas, on April 10, 1984, for a single count of conspiring to participate in the use of extortionate means in an attempt to collect an extension of credit in violation of 18 U.S.C. Sec. 894. A two-count superseding indictment was returned June 19, 1985. In Count I, Natale, Malina and Wash were charged with conspiring to collect an extension of credit by extortionate means, and in Count II, with the use of extortionate means to collect an extension of credit, in violation of 18 U.S.C. Sec. 894 and 2. As previously stated, only Natale was found guilty, and only on Count II. This appeal followed.

II

The issues in this case focus on the language of the statute. Natale was convicted under 18 U.S.C. Sec. 894 which provides:

Whoever knowingly participates in any way, or conspires to do so, in the use of extortionate means

(1) to collect or attempt to collect any extension of credit or (2) to punish any person for the non repayment thereof,

Shall be fined not more than $10,000 or imprisoned not more than twenty years or both.

Natale contends that the evidence is insufficient to sustain his conviction in violation of 18 U.S.C. Sec. 894, since the government failed to prove that there was an "extension of credit." Natale argues that there are two ways in which a transaction can be an extension of credit. First, there must be a loan, or second, there must be an agreement whereby the repayment or satisfaction of a debt or claim will be deferred. Natale asserts that the evidence established only that the transaction here was in the nature of an investment or joint venture, and not in the nature of a loan or an extension of credit. He argues that the testimony of his witnesses supports his characterization of the transaction.

In considering whether there is sufficient evidence to sustain a conviction, we must determine whether a reasonable trier of fact could have found that the evidence establishes guilt beyond a reasonable doubt. United States v. Loalza-Vasquez, 735 F.2d 153 (5th Cir.1984); United States v. Bell, 678 F.2d 547 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). In applying this standard, we must consider the evidence, direct and circumstantial, in the light most favorable to the government. We also must accept all reasonable inferences which tend to support the jury's verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Marx, 635 F.2d 436 (5th Cir.1981).

We begin our consideration by noting again the statutory language. The term "to extend credit" is defined in 18 U.S.C. Sec. 891(a)(1) as follows:

To extend credit means to make or renew a loan, or to enter into an agreement, tacit or express, whereby the repayment or satisfaction of debt or claim whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred.

As applied to our facts, the definition of an extension of credit may be simplified to mean: to enter into any agreement whereby the satisfaction of any claim will be deferred.

We agree...