U.S. v. Persico, 988

• Decision Date: 04 August 1988
• Docket Number: D,No. 988,988
• Citation: 853 F.2d 134
• Parties: UNITED STATES of America, Appellee, v. Alphonse PERSICO, Defendant-Appellant. ocket 87-1545.
• Court: U.S. Court of Appeals — Second Circuit

Page 134

853 F.2d 134

UNITED STATES of America, Appellee, v. Alphonse PERSICO, Defendant-Appellant.

No. 988, Docket 87-1545.

United States Court of Appeals Second Circuit.

Argued April 19, 1988.

Decided Aug. 4, 1988.

Judd Burstein, New York City, for defendant-appellant.

Edward A. McDonald, Attorney-in-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before FEINBERG, Chief Judge, and MESKILL and PIERCE, Circuit Judges.

MESKILL, Circuit Judge:

In 1980, defendant-appellant Alphonse Persico and co-defendant Michael Bolino were tried before the United States District Court for the Eastern District of New York, Weinstein, J. The indictment against them charged that they conspired to make an extortionate extension of credit in violation of 18 U.S.C. Sec. 892 (1982) (count one), conspired to collect an extension of credit by extortionate means in violation of 18 U.S.C. Sec. 894 (1982) (count two), and collected an extension of credit by extortionate means in violation of 18 U.S.C. Secs. 2, 894 (1982) (count three). Both defendants were convicted on all three counts.

In this appeal, Persico challenges a single evidentiary ruling and the proportionality of his sentence under the Eighth Amendment. For the reasons that follow, we affirm.

BACKGROUND

We summarize only the facts relevant to the issues raised on appeal. In March 1976 Persico and Bolino lent $10,000 to Joseph Cantalupo, an FBI undercover informant and small time career criminal. Cantalupo already had several outstanding debts to loansharks. It is unclear whether Persico and Bolino understood that the cash was for Cantalupo's own use, or whether Cantalupo obtained the loan by misrepresenting to Persico and Bolino that it was actually for a certain Edelman. Apparently it was also possible that Cantalupo initially obtained the money for Edelman but kept it for himself when Edelman decided that he did not need it after all. In any event, Persico and Bolino looked to Cantalupo for payments and he was often late.

The government's case rested on the defendants' efforts to collect the loan. Cantalupo wore a recording device to tape numerous conversations with Bolino about the loan. The tapes revealed that they often discussed Cantalupo's inability to make payments and the consequences of his failure to do so. Cantalupo also testified that he met Persico and Bolino on April 22, 1977, at the Diplomat Social Club in Brooklyn, where Persico beat him up for failing to make payments. No tape recording was made of this incident, however.

The principal issue at trial was the use of extortionate means to enforce Cantalupo's repayment schedule. Persico in effect conceded lending the money to him at usurious rates, but contended that the beating was administered in connection with another matter. According to Persico, he was angry with Cantalupo for using Persico's name in an unrelated scheme to extort money from one Wasserman (the Wasserman extortion).

To establish that his displeasure with Cantalupo was related to the Wasserman extortion rather than the loan, Persico offered the testimony of Cantalupo's father, Anthony. Anthony Cantalupo would have testified that he spoke to Persico some time after April 22, 1977, and that Persico said he had beaten Cantalupo for using Persico's name in connection with the Wasserman extortion. Judge Weinstein sustained the government's objection to this line of questioning, however, ruling that the conversation was inadmissible hearsay. Tr. 333. He rejected defense counsel's theory that the conversation was admissible under Fed.R.Evid. 803(3) to prove Persico's state of mind with respect to the beating. Id.

The jury convicted both defendants on all three counts. Bolino was sentenced in August 1980 to five years imprisonment. During the sentencing proceeding in June 1980, however, Persico jumped bail and remained a fugitive until he was recaptured in West Hartford, Connecticut, in November 1987. He was then returned to the Eastern District for sentencing, which was assigned to Judge Platt after Judge Weinstein recused himself. On December 18, 1987, Judge Platt sentenced Persico to prison terms of five years on count one and twenty years on count three. He also imposed a suspended twenty year term on count two, with a five year term of probation on count two to run consecutively with the prison term imposed on the other counts.

This appeal followed.

DISCUSSION

I.

Persico asserts only one trial error in this appeal. He argues that Judge Weinstein erred in refusing to allow Anthony Cantalupo to testify about Persico's alleged statement explaining the reason for the beating of Joseph Cantalupo. As an initial matter, however, we must decide whether we should even consider Persico's challenge to the court's evidentiary ruling in light of Persico's bail jumping after conviction but before sentencing and his seven year fugitive status.

There is no constitutional right to appeal a criminal conviction. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). It is well settled that we have authority to dismiss an appeal when a convicted defendant becomes a fugitive while an appeal is pending and is not recaptured. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (per curiam); United States v. Sperling, 506 F.2d 1323, 1345 n. 33 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). Indeed, "[d]isposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law." Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975) (per curiam). In Molinaro, the Supreme Court explained that "such an escape ... disentitles the defendant to call upon the resources of the Court for determination of his claims." 396 U.S. at 366, 90 S.Ct. at 498-99. This "disentitlement" is an equitable principle. See United States v. Sharpe, 470 U.S. 675, 681 n. 2, 105 S.Ct. 1568, 1573 n. 2, 84 L.Ed.2d 605 (1985).

Courts have identified four considerations that support dismissal in such circumstances. First, a decision respecting a fugitive is effectively unenforceable because the fugitive is beyond the control of the court. See Barker v. Jones, 668 F.2d 154, 155 (2d Cir.1982); see also Estelle, 420 U.S. at 543, 95 S.Ct. at 1178 (Stewart, J., dissenting). A corollary to this consideration is that the defendant who flees during the pendency of an appeal has "arrogated to himself the right not to respond to an unfavorable decision." See United States v. Puzzanghera, 820 F.2d 25, 27 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 237, 98 L.Ed.2d 195 (1987). Second, loss of appellate review is appropriate because a fugitive flouts the judicial process by escaping. See id. at 26; United States v. London, 723 F.2d 1538, 1539 (11th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2684, 81 L.Ed.2d 878 (1984); id. at 1540 (Johnson, J., dissenting). Cf. Hussein v. INS, 817 F.2d 63, 63 (9th Cir.1986) (per curiam) (escape is "inconsistent with the pursuit of judicial remedies"); Ali v. Sims, 788 F.2d 954, 959 (3d Cir.1986) (fugitive demonstrates "disrespect for the legal processes"); In re Stern, 249 F.2d 720, 722 (2d Cir.1957) (per curiam) (dismissing appeal of convicted contemnors whose conduct constituted "an undisputed, studied, and successful attempt to render the court powerless to enforce its decree"), cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364 (1958). Third, a rule of dismissal has the salutary effects of discouraging escape and promoting the efficient operation of appellate courts. See Estelle, 420 U.S. at 537, 95 S.Ct. at 1175; London, 723 F.2d at 1540 (Johnson, J., dissenting). Cf. Ali, 788 F.2d at 959 (noting that "[p]ractical concerns" make it "unreasonable" for court to devote its limited resources to litigants who "blatantly disregard[ ]" procedure by fleeing). Fourth, the delay occasioned by the period of a defendant's flight can prejudice the prosecution should a new trial be ordered after a successful appeal. See United States v. Baccollo, 725 F.2d 170, 172 (2d Cir.1983).

The instant case differs in two respects from Molinaro and certain of the cases that have followed it. First, Persico absconded before sentencing, not while appeal was pending. Second, he was not at large while the appeal was before us. Persico urges us to hold that a convicted defendant who flees and is recaptured prior to sentencing does not forfeit the right to appeal trial errors. The government contends that the better view is that of the Eleventh Circuit, which has held that a defendant "waives his right to appeal from the conviction" in such circumstances. See United States v. Holmes, 680 F.2d 1372, 1373 (11th Cir.1982) (per curiam), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983). Cf. London, 723 F.2d at 1539 (flight during trial constitutes waiver of right to appeal trial errors). In Baccollo, we confronted a similar situation without deciding "whether an appellate court has inherent power to deny an appeal on the ground that before the district court entered its judgment the would-be appellant both absconded from the district court and was returned to that court." 725 F.2d at 172. We held instead that even if we had such power, we had discretion to decline to exercise it and dispose of the "plainly frivolous" appeal on the merits. Id.

Although we have discretion to reach the merits in an appropriate case, see id., the considerations that support the Molinaro line of decisions provide compelling reasons for declining to consider trial errors asserted by a defendant who absconds after conviction and is recaptured before sentencing. We conclude that in the circumstances of this case, we should exercise our discretion to decline to reach the merits of...