U.S. v. Papia

Decision Date19 August 1977
Docket NumberNos. 76-1420,s. 76-1420
Citation560 F.2d 827
Parties2 Fed. R. Evid. Serv. 414 UNITED STATES of America, Plaintiff-Appellee, v. Sally A. PAPIA, Russell J. Enea, Joseph V. Basile, and Maximillion J. Adonnis, Defendants-Appellants. to 76-1422 and 76-1492.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas P. Doherty, Frank J. Schiro, Joseph P. Balistrieri, Franklyn M. Gimbel, Milwaukee, Wis., for defendants-appellants.

William J. Mulligan, U. S. Atty., David B. Bukey, Atty., Milwaukee, Wis., for plaintiff-appellee.

Before BAUER and WOOD, Circuit Judges, and DILLIN, District Judge. *

BAUER, Circuit Judge.

Codefendants Russell Enea, Joseph Basile and Maximillion Adonnis appeal their convictions for conspiring to use extortionate means to collect a debt in violation of 18 U.S.C. § 894. Sally Papia, who was acquitted on a like conspiracy charge, appeals her conviction for having attempted to collect a debt through extortionate means.

On appeal, all the defendants argue that insufficient evidence exists to support their convictions, that the trial court erred in admitting statements of co-conspirators against them, and that they should have been tried separately. Additionally, Papia argues that the conspiracy and extortion counts brought against her should have been tried separately, that her acquittal on the conspiracy count requires that she be given a new trial on the extortion count, and that the jury was improperly instructed. Enea argues that the trial court erred in failing to respond properly to a question from the retired jury, and that the jury should not have been given transcripts of taped conversations played at trial. Basile argues that he should have been granted a mistrial because of the Government's improper inquiry into his prior theft conviction. Adonnis argues that the trial court erred in permitting a government witness to testify against him in rebuttal. We find all of the defendants' contentions to be without merit and affirm their convictions for the reasons noted below.

I.

Defendants' convictions result from their efforts to collect a debt owed by Kurt Amidzich to Sally Papia. Amidzich had borrowed about $5,000 from Papia while he was employed as a chef at her restaurant. When Amidzich left Papia's employ to open a rival restaurant in partnership with Richard Schmitz and others, Papia was so aggrieved that she insisted that Amidzich repay his debt immediately and told him, "I ought to have your head busted."

A week after the new restaurant, the Northbrook Inn, opened for business, Papia, Enea and James Jennaro visited the establishment. While alone at the bar with Schmitz, Papia complained to Schmitz that he had stolen her chef away. After advising Schmitz that Amidzich owed her $5,000, Papia warned him that

"People have gotten hurt by not showing respect . . . . People that operate or do things such as what you have done to me, Dick, can have problems in business. . . . You could come out here some morning and this place could be burned down."

Papia then told Schmitz that she was holding him personally responsible for seeing that Amidzich's debt was repaid and that, "if you see it's paid, everything will be all right. We can be friends."

Schmitz later related this conversation to Amidzich, who told Schmitz not to worry because the matter would be taken care of. Amidzich then sent Papia a letter, in which he wrote:

"During your recent visit you leaned on Dick pretty good. Some of the things you said upset him and caused him great concern. I've got enough problems as it is and I would consider it a personal favor if you would lay off the muscle."

Papia responded to the letter with a telephone call, in which she told Amidzich to come up with the money or, if he could not, have his partners do it.

During the next two months, Papia made several efforts to collect the debt, including an attempt to force payment by taking possession of Amidzich's automobile. The debt, however, was never paid by Amidzich or his partners in the Northbrook Inn, and the car was returned after Amidzich complained to the authorities.

On December 29, 1974, Joseph Basile called Jacob Schlechter, an unindicted co-conspirator, and instructed Schlechter to set the Northbrook Inn on fire that night. Schlechter did so in the company of his wife, who later contacted the police and began supplying information concerning the ongoing conspiracy. Following the fire, Schlechter went to Basile's home to collect money for his work. Basile gave Schlechter $100 and told him that another $900 would be forthcoming from out of town. Schlechter asked what the fire was all about, and Basile told him that it was ordered because Amidzich had "screwed over" Sally Papia and because of a "personal grievance" Basile had against Amidzich.

On New Year's Eve, two days after the fire, Papia ran into Amidzich at a local restaurant. Dropping a lighted match into an ash tray, Papia said, "I told you this was going to happen."

In early January, Schlechter asked Basile for the balance of the money due him for setting the fire. Basile deflected the request by advising Schlechter that they were getting pressure from a Frank Balistrieri, who had lost some juke boxes in the Northbrook Inn fire, and that Schlechter should not tell anyone of his involvement in the fire.

On January 7, Russell Enea approached Schlechter in Papia's restaurant and asked him if he knew anything about the fire. Schlechter, complying with Basile's order to keep mum, said that he did not. Three days later, apparently satisfied that Schlechter could be trusted, Enea again approached Schlechter and directed him to break Amidzich's wrists "so he never cooks again." Enea said that "Max" would get in touch with Schlechter to talk about the job. Shortly thereafter, Max Adonnis contacted Schlechter and told him to kidnap Amidzich and take him to a garage so that Adonnis and Enea could break his wrists personally. Schlechter and Adonnis then discussed the plan with Herbert Holland, who was to assist in the endeavor. Adonnis explained to Schlechter and Holland that Amidzich owed Sally Papia $5,000, that he had "screwed over Sally," and that he wasn't going to get away with it. Adonnis gave Schlechter a slip of paper listing Amidzich's address, the make of his car and its license plate number. A week later, Adonnis passed along a photo of Amidzich taken in Papia's restaurant on which Papia's handwriting appeared.

During the next couple of weeks, Holland, Schlechter and Adonnis attempted to locate Amidzich without success. On January 18, Enea, disturbed by the lack of progress, approached Schlechter and, gesturing with his wrists, inquired what Schlechter was doing about Amidzich. Schlechter and Holland renewed their efforts to locate Amidzich but failed to do so, much to the expressed chagrin of Enea and Adonnis. Finally, Adonnis saw Amidzich at a local restaurant and obtained his new address, place of employment and license plate number, which information he passed on to Schlechter with instructions to do the job right away.

After purchasing a baseball bat and two ski masks for use in the battery, Schlechter and Holland went to Amidzich's place of employment in the early morning hours of February 9, 1975. While waiting for Amidzich to leave work, the two were confronted by police because the auto in which they were riding matched a description of a stolen car. Apparently shaken by the incident, Schlechter and Holland decided to go home and contact Adonnis, who advised them to halt their efforts while he checked out possible problems with the police.

On February 14, Schlechter and Holland were arrested on state charges unrelated to the case at bar. The baseball bat, ski masks, and the slip of paper listing Amidzich's address and license plate number were found in Schlechter's possession at the time of his arrest.

That same evening, Enea visited Amidzich at work and told him:

"You know by fate last week you were saved. . . . You were going to see your own blood and they were going to break both your wrists so you would never be able to cook again. . . . They missed you and I'm going to do it personally."

While awaiting trial on the state charges, Schlechter agreed to cooperate with authorities investigating the Northbrook Inn fire and to meet with his co-conspirators while equipped with a hidden tape recorder. On March 6, Schlechter taped a conversation with Adonnis, who told Schlechter of the efforts he and Enea had made to raise bail money for him. Schlechter asked Adonnis if "that thing" with Amidzich was still on. Adonnis replied, "Right now it's gonna be very, very cool" because he had been told by a police informant that they were all under investigation. When Schlechter asked whether Enea was going to come up with some money for him, Adonnis replied that Enea was trying to work something out and hoping that "when things calm down a bit, maybe you will make another move." Schlechter then asked if "Sally got wind of all this." Adonnis responded that "all she knows is that the two of us got somebody." Adonnis reassured Schlechter, however, that Papia would learn of his efforts: "You're doing it for her. When it gets done, she'll know cause she's gonna pay you."

On March 12, Schlechter taped a conversation with Basile, who admitted that he "took the rap" for the Northbrook Inn fire when confronted by an upset Frank Balistrieri, who wanted to know why Basile had the place burned down without telling him. During the conversation with Schlechter, Basile also admitted that he and Enea had agreed to burn the Northbrook Inn down:

"I said (to Enea), I'd like to burn that place down. I never liked (Amidzich) to begin with, that's what I told him. He said, OK, why don't we do that then. I said, I got to have some expense money."

Moreover, Basile acknowledged that Enea had checked with him before directing Schlechter to kidnap and assault...

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