U.S. v. Polizzi

• Citation: 801 F.2d 1543
• Decision Date: 10 October 1986
• Docket Number: 85-5171,Nos. 85-5170,s. 85-5170
• Parties: 21 Fed. R. Evid. Serv. 1257 UNITED STATES of America, Plaintiff-Appellee, v. Michael S. POLIZZI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph E. MATRANGA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1543

801 F.2d 1543

21 Fed. R. Evid. Serv. 1257

UNITED STATES of America, Plaintiff-Appellee, v. Michael S. POLIZZI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Joseph E. MATRANGA, Defendant-Appellant.

Nos. 85-5170, 85-5171.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 10, 1986.

Decided Oct. 10, 1986.

Roger W. Haines, Jr., Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Roger W. Haines, Jr., Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Neal S. Fink, Detroit, Mich., Eugene G. Iredale, San Diego, Cal., for defendants-appellants.

Appeal from the United States District Court for the Southern District of California.

Before HUG and FLETCHER, Circuit Judges, and GEORGE, ^* District Judge.

HUG, Circuit Judge:

Michael S. Polizzi ("Polizzi") and Joseph E. Matranga ("Matranga") appeal their convictions for conspiracy to collect and the collection of extensions of credit by extortionate means under 18 U.S.C. Sec. 894 (1982) and travel in aid of racketeering under 18 U.S.C. Sec. 1952 (1982). ¹

Polizzi and Matranga jointly raise contentions concerning the jury instructions and a contention that a key government witness committed perjury. They also raise separate issues regarding the jury instructions, a quashed subpoena, Jencks Act and Brady material, a severance, sufficiency of the evidence, the admissibility of certain evidence, prosecutorial misconduct, and a continuance.

BACKGROUND

The Government's principal witness was Harry Hall, a longtime "con man" who admittedly made his living by defrauding people, including persons associated with the Mafia. Hall had a long criminal record. Hall testified that he began cooperating with the Government in part because he believed that he was going to be killed. Neither defendant testified.

Hall testified that, in 1977, he began borrowing large sums of money from Matranga or from people referred by Matranga. Hall testified that he never put up collateral for these loans, that the interest was ten percent a month, and that it was understood that he would be physically hurt if he failed to pay. He had known and socialized with Matranga for many years and Matranga had indicated at various times that he knew people in the Mafia. At the time Hall borrowed the money, Hall Hall testified that he and Matranga concocted a false cover story (a "surplus TV deal," whereby Hall would purchase surplus televisions from the Federal Government and resell them at a profit) to enable Matranga to obtain money to lend to Hall. Matranga told this cover story to John Priziola in order to get $100,000 to lend Hall. Matranga later told Hall that Priziola was the number two man in the Detroit Mafia. Matranga was Priziola's son-in-law.

had "heard" that he would "get hurt" if he did not repay Matranga.

There was substantial evidence from Hall, other witnesses, and FBI tapes that Matranga often threatened Hall's life when he became delinquent in repaying these loans. Hall testified that after one of these threatening demands for money he was very concerned and worried. Another witness testified that Hall looked upset and scared after confronting Matranga. Matranga often bragged of his organized crime connections and Hall testified regarding such underworld persons that if they demand "a piece of the action ... because of their prominence in the Mafia, you usually succumb to them."

In 1981, Matranga told Hall to call Polizzi. Matranga had told Hall in 1975 that Polizzi was the number four man in Detroit organized crime. Polizzi wanted to know when Hall was going to pay his mother-in-law. Polizzi's mother-in-law was Frances Priziola, John Priziola's widow. ² In 1982, Matranga and Polizzi met with Hall, and Polizzi, after complaining that his mother-in-law had not been receiving any payments, told Hall, "[f]rom now on, the money you are giving [Matranga], I want my mother-in-law to get that money ... enough is enough." In 1983, Polizzi told Hall (who again protested that he had been making payments to Matranga): "my mother-in-law hasn't gotten a dime ... other than what you sent to the bank that time." In May 1983, Polizzi reminded Hall that he still owed "six seventy." Hall testified that he felt threatened by Polizzi's reputation. Between 1980 and 1983, Hall made various payments to Matranga and to Polizzi.

ANALYSIS

I. Collection by Extortionate Means Instruction

Polizzi and Matranga contend that the trial court erred in instructing the jury that actual fear is not an element of the offense of using extortionate means to collect an extension of credit under 18 U.S.C. Sec. 894. This involves a matter of statutory construction, which we review de novo. United States v. Fields, 783 F.2d 1382, 1384 (9th Cir.1986); United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

18 U.S.C. Sec. 894(a)(1) provides that "[w]hoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means to collect or attempt to collect any extension of credit" is guilty of a crime punishable by a $10,000 fine or 20 years in prison, or both. "Extortionate means" is defined by 18 U.S.C. Sec. 891(7) (1982) as "any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person."

Polizzi and Matranga requested the trial court to instruct that actual fear is an element of this offense. The trial court refused and instead instructed the jury:

If you find, under all the circumstances shown in the evidence, an ordinary person would have been put in fear of immediate bodily or economic harm, or future bodily or economic harm from anything the defendant said or did, then you may find that the defendant did use extortionate The government need not prove that the victim was actually afraid of the defendant, since actual fear is not an element of the offense. Rather, it is the intent to create fear of harm which is prohibited.

means to instill fear within the meaning of these instructions.

It is the threat of violence or harm to the debtor to collect or attempt to collect the extension of credit that is prohibited by section 894; the production of actual fear in the debtor is not an element of the offense. The Second Circuit has so held in a number of cases. United States v. Sears, 544 F.2d 585, 587 (2d Cir.1976); United States v. Natale, 526 F.2d 1160, 1168-69 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976). It is the nature of the actions of the person seeking to collect the indebtedness, not the mental state produced in the debtor, that is the focus of the inquiry for the jury. The person to whom threats are made could be a government agent, or not be in actual fear for some other reason, and yet a section 894 violation could occur. However, a more practical reason for Congress having defined the offense in this manner is that a victim may be easily intimidated and thus testimony concerning his actual fear might be difficult to obtain. The legislative history that led to the enactment of the provisions dealing with extortionate credit transactions confirms this. It was noted that the major difficulty in prosecuting crimes of this type is the reluctance of victims to testify. Conf.Rep. No. 1397, 90th Cong., 2d Sess. reprinted in 1968 U.S.Code Cong. & Ad.News 1962, 2021, 2026. The instruction, as given, is in accord with this authority.

Polizzi and Matranga contend that a passage in United States v. Nace, 561 F.2d 763, 768 (9th Cir.1977), supports their contention. There the issue before the court was the relevance of testimony concerning organized crime. The opinion stated that the evidence was relevant to the issue of the debtor's fear and that "[s]uch fear is an essential element of the crime charged. 18 U.S.C. Secs. 894, 891(7); United States v. Curcio, 310 F.Supp. 351 (D.Conn.1970)." Id. In the context in which this statement was made, it is apparent that all that Nace held was that the debtor's fear was relevant and probative to the section 894 offense. There is no indication that the court was expressing an opinion on the issue before us or attempting to create a conflict with the opinion previously expressed by the Second Circuit in Natale. This is evident from the fact that the authority cited by this court in Nace was also cited with approval in the Second Circuit's Natale opinion. Both opinions cite to the Curcio case, with the pertinent language from Curcio being cited in Natale as follows:

Acts or statements constitute a threat under 18 U.S.C. Sec. 891(7) "if they instill fear in the person to whom they are directed or are reasonably calculated to do so in light of the surrounding circumstances." United States v. Curcio,....

Natale, 526 F.2d at 1168 (emphasis in Natale opinion). Thus, our statement in Nace clearly was directed solely at the issue of admissibility of evidence, not at the statutory prerequisites for establishing the offense. ³

II. Extortionate Extension of Credit Instruction

Matranga contends that the Government relied on an alleged violation of 18 U.S.C. Sec. 892 (1982) to prove violations of section 894, and that therefore the trial court improperly refused to instruct the jury on the elements of section 892, which proscribes the making of extortionate extensions of The district court has broad discretion in formulating jury instructions. United States v. Steel, 759 F.2d 706, 710-11 (9th Cir.1985). When reviewing a challenge to jury instructions, this court considers the instructions as a whole, United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975); United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, sub nom., Utz v. U.S. --- U.S. ----, 106 S.Ct. 592, 88 L.Ed.2d 573 (1985), and reviews them for an...