U.S. v. Roth, s. 83-1983

• Decision Date: 17 July 1984
• Docket Number: 83-1984,Nos. 83-1983,s. 83-1983
• Parties: 15 Fed. R. Evid. Serv. 1963 UNITED STATES of America, Appellee, v. Michael ROTH, Appellant. UNITED STATES of America, Appellee, v. Marvin ROTH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1222

736 F.2d 1222

15 Fed. R. Evid. Serv. 1963

UNITED STATES of America, Appellee, v. Michael ROTH, Appellant.

UNITED STATES of America, Appellee, v. Marvin ROTH, Appellant.

Nos. 83-1983, 83-1984.

United States Court of Appeals,

Eighth Circuit.

Submitted March 14, 1984.

Decided June 12, 1984.

Rehearing and Rehearing En Banc Denied July 17, 1984.

Arthur S. Margulis, St. Louis, Mo., for appellant Michael Roth.

Thomas E. Dittmeier, U.S. Atty., Kevin F. O'Malley, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS, JOHN R. GIBSON and BOWMAN, Circuit Judges.

ROSS, Circuit Judge.

Michael Roth and Marvin Roth, unrelated codefendants, were indicted by a grand jury for making an extortionate extension of credit, using extortionate means to collect or attempt to collect an extension of credit, and conspiring to use extortionate means to collect or attempt to collect an extension of credit, in violation of 18 U.S.C. Secs. 892, 894 (1976). The defendants were tried before a jury and found guilty on each count contained in the indictment. The district court ¹ sentenced Michael Roth to fifteen years imprisonment on each count, with the sentences to run concurrently, and imposed a fine of $20,000. Marvin Roth was sentenced to twenty years imprisonment on each count, with the sentences to run concurrently, and was also fined $20,000. The defendants appeal their convictions alleging that several errors were committed by the district court. Appellants invoke this court's jurisdiction under 28 U.S.C. Sec. 1291 (West Supp.1983). For the reasons stated herein we affirm the convictions.

FACTS

Jacque Farache, borrowed $30,000 from Aaron Pultman in November 1981. The loan was for the term of one year with interest owing at thirteen percent per month for the first six months, and eleven percent for the last six months. Pultman was the nephew of Marvin Roth, and was Michael Roth's partner in a restaurant establishment known as Bagel & Brew, in St. Louis.

On July 6, 1982, Pultman was arrested in connection with a major drug transaction. Subsequently he was indicted by a grand jury for his involvement in the transaction. The day following the indictment he was found dead in an abandoned automobile. After Pultman's death, Marvin Roth viewed documents at Pultman's home and found evidence that Farache owed Pultman $30,000. ²

On August 3, 1982, approximately 10 days after the discovery of Pultman's body, Farache received a telephone call concerning the repayment of his loan from Pultman. The caller stated that there was a debt of approximately $42,000 "on the books," consisting of $30,000 principal and $12,000 interest. Farache was told that he had 30 days to repay the debt which would be collected "one way or another."

Immediately after receiving this call, Farache contacted Detective Hegger of the St. Louis Police Department and advised him of what had transpired. Farache had been an informant for Detective Hegger Approximately two weeks later Farache received a second and third call to arrange a payment schedule. It was eventually agreed that payments of $3,000 per month would be made against the indebtedness. During these conversations Farache talked to the original caller and "his superior."

since 1980 when he was arrested on drug charges.

Farache again notified Detective Hegger of the calls. Hegger provided Farache with a tape recorder to record future telephone conversations, and had Southwestern Bell place a line identification device on Farache's phone to register the originating number of all incoming calls.

On August 23, 1982, Farache received a call originating from Michael Roth's restaurant. The caller instructed Farache to deliver the first $3,000 payment to a man named Frank at Barnes Hospital in St. Louis.

Equipped with a body recording device Farache went to Barnes Hospital to deliver the $3,000 payment. Officers of the St. Louis Police Department surveilled the meeting, and observed Farache hand the payment to a man later identified as Robert Jackson. Marvin Roth was observed driving away from the scene with Jackson.

Farache received additional calls regarding the loan during the early part of September. All of the calls originated from Michael Roth's restaurant. Police officers posing as customers corroborated the timing of these calls, and identified Michael Roth as the caller.

On September 17, Michael Roth phoned Farache and told him that a payment was expected that day at the "same place." Later that day Farache delivered $1,000 to Jackson, and explained that he could not raise the $3,000 that had been requested.

At this time special agents of the Federal Bureau of Investigation (FBI) applied for and received a court order authorizing the installation of a pen register device on the private telephone at the Bagel & Brew Restaurant. A pen register device records the date, time, and duration of outgoing telephone calls placed from the telephone to which it is attached. The pen register device on the Bagel & Brew telephone became operational on September 21 and continued in operation through November 2.

Michael Roth telephoned Farache again on September 29, to arrange for an October 1 payment. Farache did not have the money to make the payment, and, therefore, did not meet with Jackson as scheduled. Special agents of the FBI observed Marvin Roth and Jackson at the Barnes Hospital payment location, and followed them as they returned to Michael Roth's restaurant.

Michael Roth telephoned Farache to discern why he had not made the payment. Farache insisted that he should not have to continue to make payments since the money had been "lost" as a result of a previously successful police narcotics investigation. Michael Roth indicated to Farache that Aaron Pultman "felt the same way." Farache then asked for different payment terms, but Michael Roth said he was without authority to make those kinds of decisions. Marvin Roth subsequently rejected the idea of discharging the entire indebtedness for a reduced sum.

Officers in the restaurant observed the Roths and Jackson talking shortly after the telephone call. At that time Jackson volunteered to talk to Farache about the indebtedness. On October 5, Jackson and a friend, John Pluff, met with Farache. Several threats were made against Farache, and he was visibly shaken by this encounter.

Shortly after this incident Jackson was approached by the FBI and agreed to cooperate with the government. He made no further pickups for the Roths.

On November 1, Farache received another call from Michael Roth, and arrangements were made for a payment to be delivered at Lambert International Airport. That evening Farache delivered $500 to Marvin Roth, who was then arrested. Thereafter, Michael Roth was arrested.

ISSUES

On appeal both defendants claim that the district court erred in admitting Robert Jackson's testimony regarding his agreement with the government, and in allowing the government to use documents which had not been furnished to the defendants. Marvin Roth raises three additional allegations of error. He claims that the district court erred in denying his motion for severance, in admitting the telephone conversations of his codefendant, and in imposing an excessive sentence.

DISCUSSION

A. Admission of Coconspirator's Guilty Plea

At trial Robert Jackson testified extensively as to his participation with the Roths in the scheme to collect the loan. During the direct examination of Jackson the government sought to elicit testimony from Jackson regarding his agreement with the government. The following exchange took place:

Q. (By Mr. Dowd) Tell us whether or not the Government promised you that you would be charged with only one count of conspiracy to extort funds in this case?

MR. LONDON: May we approach the bench?

(The following occurred at the bench outside the hearing of the jury.)

MR. LONDON: I'm going to have to object, Your Honor. I'm going to object to this line of questioning. He has now injected into this case that the witness has agreed to plead guilty to conspiracy to extort money which is the very charge in this trial before this jury. And I move that it be stricken and the jury instructed to disregard it, and a mistrial be declared. How could this jury be asked to pass upon this with an open mind when the Government now is leading their own witness and bringing the ultimate issue?

THE COURT: Of course, he's the fellow that's making the contacts. I'm going to allow you to--let's avoid leading so much. He has already testified that he made an arrangement with the authorities; is that right?

MR. LONDON: He testified, not only that, it was an arrangement with respect to extortion.

THE COURT: You may ask him what that agreement was.

MR. DOWD: Okay.

(The following occurred within the hearing of the jury.)

Q. (By Mr. Dowd) Mr. Jackson, what was your agreement with the Government?

A. The agreement was that I not make any further pickups and that I would only be charged with one count of conspiracy.

Q. Okay.

A. And that the prosecutors would let the sentencing judge, make him aware of my cooperation.

The appellants contend that this testimony was highly prejudicial.

Ordinarily, one person's guilty plea or conviction may not be used as substantive evidence of the guilt of another. See United States v. Wiesle, 542 F.2d 61, 62 (8th Cir.1976). However, evidence that a codefendant has pled guilty to the same offense is not error unless elicited as substantive proof of the defendant's guilt. Such evidence is clearly admissible to show the witness's acknowledgement of participation in the offense, or to reflect on his credibility. In such circumstances the jury should be instructed that the evidence is received for this purpose alone, and that they are not to infer the guilt of the defendant. See Wallace v. Lockhart, 701 F.2d 719, 725-26 (8th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 340, 78 L.Ed.2d 308 (1983).

In this case...