U.S. v. Panaro, PLAINTIFF-APPELLEE

• Decision Date: 28 February 2001
• Docket Number: PLAINTIFF-APPELLEE,99-10446,DEFENDANT-APPELLANT,No. 99-10450,99-10450
• Citation: 241 F.3d 1104
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. ROBERT PANARO, UNITED STATES OF AMERICA,, v. STEPHEN CINO,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1104

241 F.3d 1104 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ROBERT PANARO, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. STEPHEN CINO, DEFENDANT-APPELLANT.

No. 99-10450, 99-10446

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted December 11, 2000

Filed February 28, 2001

NOTE: SEE AMENDED OPINION AT 266 F.3d 939.

[Copyrighted Material Omitted]

David Z. Chesnoff, Goodman, Chesnoff & Keach, Las Vegas, Nevada; John Fadgen, Las Vegas, Nevada, for the defendants-appellants.

Eric Johnson and Cynthia Shepheard, Assistant United States Attorneys, Las Vegas, Nevada, for the plaintiff-appellee.

Appeals from the United States District Court for the District of Nevada D.C. No. CR-97-00082-4-LRL Philip M. Pro, District Judge, Presiding

Before: David R. Thompson, Diarmuid F. O'Scannlain, and A. Wallace Tashima, Circuit Judges.

Thompson, Circuit Judge

Appellants Robert Panaro and Stephen Cino, both having ties to organized crime families, were charged with various criminal acts, including crimes related to the murder and extortion of Herbie Blitzstein, a person also associated with organized crime. Relevant to this appeal, Panaro was convicted of one count of conspiracy to interfere with interstate commerce by extortion in violation of the Hobbs Act, 18 U.S.C. S 1951(a). Cino was convicted of two counts of conspiracy to interfere with interstate commerce by extortion in violation of the Hobbs Act, 18 U.S.C. S 1951(a) and two counts of money laundering, in violation of 18 U.S.C. S 1956. Both Panaro and Cino appeal their convictions and sentences. We have jurisdiction under 28 U.S.C. S 1291 (1994), and we affirm.

FACTS

Panaro and Cino, along with fourteen co-defendants, were charged in a fifty-count indictment with various racketeering related charges, including murder, conspiracy to commit extortion, money laundering, counterfeiting, wire fraud, and mail fraud. At trial, Joseph DeLuca, one of the co-defendants, testified that he met Blitzstein in 1991. Blitzstein, a "gangster " with ties to the Chicago La Cosa Nostra ("LCN"), gave DeLuca $25,000 to set up Any Auto Repair in Las Vegas, Nevada.¹ The business included repairing, buying and selling cars. DeLuca testified that he often bought auto parts for this business from outside the state of Nevada.

According to DeLuca, he would give cash from the business to Blitzstein, who would in turn lend the money out on the street at high interest rates in loanshark or shylock loans. At least one of Blitzstein's borrowers resided outside Nevada. DeLuca testified that he and Blitzstein split evenly all the proceeds from the auto shop business and the loansharking enterprise.

In late 1995, Blitzstein introduced DeLuca to Peter Caruso, who had ties to the Buffalo, Chicago, and Los Angeles crime families. In the fall of 1996, Caruso told DeLuca that DeLuca was being cheated by Blitzstein. Caruso also told DeLuca that he intended to steal Blitzstein's share of the auto shop and loansharking businesses and asked for DeLuca's help. At that time, DeLuca was reluctant, and told Caruso he would not get involved without the advice and consent of co-defendant Panaro. DeLuca testified that he trusted Panaro to protect him because of their prior business relationship and because Panaro was a "made" man in the mafia.

In a meeting shortly thereafter between DeLuca, Panaro, and Caruso, Panaro expressed his intention to take over Blitzstein's share of the loansharking enterprise. Panaro told DeLuca he could have all of the auto shop business and half of the outstanding shylock loans. Caruso said they were going to rob Blitzstein's house and that "if something happened to him, oh well." DeLuca understood this to mean that Blitzstein was going to be killed.

DeLuca testified that soon after this meeting, Panaro told him that Caruso did not have the authority to kill Blitzstein without permission from New York. Panaro said he was going to have to check with co-defendant Cino, an LCN soldier, about the murder/extortion plan.

John Branco, a co-defendant turned government informant, testified that he met with Panaro and Cino in December 1996. At this time, Panaro and Cino asked Branco to tell Caruso not to kill Blitzstein. Panaro said that after the first of the year, they would confront Blitzstein and tell him "It's all over for you. Don't bring your fuckin' face in this fuckin' garage ever again." Later that day, Branco passed on Panaro and Cino's message to Caruso.

DeLuca testified that Panaro called him on January 4, 1997 and set up a meeting at a Denny's Restaurant. DeLuca and Panaro were the first to arrive. While they were waiting for the others, DeLuca told Panaro that Caruso was prepared to proceed with the burglary and murder during the first week of January 1997. Panaro agreed to Caruso's plan. After Cino, Branco, and Caruso arrived, Panaro whispered to Cino and DeLuca whispered to Branco that Caruso was planning to kill Blitzstein during the burglary. Branco expressed concern and said they should just focus on forcing Blitzstein out of the business. For the rest of the meeting, the conspirators discussed their plan to force Blitzstein to give up his interests in the auto shop and loansharking businesses. Panaro, Cino, and Branco agreed to accompany DeLuca to meet with Blitzstein at the auto shop. DeLuca testified that everyone present was to benefit from the extortion and the robbery.

The day after this January 4 meeting, DeLuca told Panaro he had reservations about the plans to rob and kill Blitzstein, and that he was afraid of Branco. Panaro responded that he would take care of Branco and that "if something was going to happen to [Blitzstein], oh well." On January 6, Caruso called DeLuca and told him "[t]hat thing... that needed to be done is done." DeLuca testified that he understood this to mean that the burglary and murder of Blitzstein had been accomplished. Blitzstein's dead body was discovered on January 7. The coroner determined that Blitzstein had been killed the evening of January 6.

Alfred Maruiello pleaded guilty to charges related to Blitzstein's murder. Maruiello admitted to being hired by Caruso to kill Blitzstein. After Blitzstein's death, Panaro asked DeLuca to compile a list of the outstanding shylock loans and share that information with Branco. As instructed, DeLuca gave the list, with loans totaling approximately $247,000, to Branco. Panaro, Cino, and Branco agreed to divide the proceeds from the loansharking business. In addition, they agreed they would get DeLuca to pay them a regular amount of money for the privilege of operating the auto shop. Not long thereafter, the defendants were arrested. They were tried, convicted and sentenced, and these appeals followed.

ANALYSIS

I.

A. Extortion of Blitzstein

Panaro and Cino argue the evidence was insufficient to support their convictions for the Blitzstein extortion conspiracy. They contend there was no communication of any threat to Blitzstein. Indeed, he was murdered before being confronted by the conspirators. Panaro and Cino further argue the government failed to present evidence to show a nexus between Blitzstein's planned extortion and interstate commerce.

Having reviewed the record, we conclude the evidence was sufficient to support the convictions of Panaro and Cino for conspiracy to extort property from Blitzstein. During the January 4, 1997 meeting, Panaro and Cino made repeated reference to their intention to implicitly threaten Blitzstein with violence to force him to give up his interests in the auto shop and loansharking businesses. After discussing DeLuca's fear that Blitzstein would retaliate against him for forcing Blitzstein out of the businesses, Panaro said "[y]ou wanted him shut up, so we're here to shut him up" and "we're here to protect you." Panaro also said "he's going to see us there, he knows, he knows he's history." If Blitzstein refused to forfeit his interest in the businesses, Panaro explained Branco would "pick him up bodily" and throw him out of the building. Panaro said, referring to Blitzstein, "[h]e ain't gonna say nothing. Just throw him out. He see us all sittin' there." Branco followed up with "[h]e'll know why we are here."

At trial, Branco testified as a witness for the government. He said that having himself, Cino, and Panaro present at the planned meeting when Blitzstein was to be kicked out of the businesses was significant because it "would be enough to let [Blitzstein] known that these are members of the mafia and if he doesn't leave he's going to have problems from other people too." Branco testified that he, Cino, Panaro, and DeLuca were each to share in Blitzstein's businesses. Viewing the evidence in the light most favorable to the government, we conclude a reasonable jury could have found Panaro and Cino guilty of conspiracy to extort property from Blitzstein in violation of the Hobbs Act, 18 U.S.C.S 1951(a). The evidence showed that DeLuca, Cino, Panaro, and Branco agreed to force Blitzstein to give up his interests in the auto shop and loansharking businesses through the use or threat of force or fear.

We also conclude that the evidence established a sufficient nexus between the conspiracy and interstate commerce. DeLuca testified that he bought auto parts for the auto shop from out-of-state suppliers "many times" and that at least one of Blitzstein's borrowers resided outside Nevada. This evidence is sufficient to establish the necessary interstate commerce connection. See United States v. Nelson, 137 F.3d 1094, 1102 (9th Cir. 1998); United States v. Atcheson, 94 F.3d 1237, 1243 (9th Cir. 1996). As we explained in Atcheson, even a slight impact on interstate commerce is sufficient to sustain a conviction for extortion under the Hobbs Act. Id.

B. Extortion of DeLuca

Cino contends there was insufficient evidence to support his conviction for the DeLuca extortion conspiracy. Cino argues...