U.S. v. Sacco

• Decision Date: 05 October 1977
• Docket Number: 1108,Nos. 1107,D,s. 1107
• Citation: 563 F.2d 552
• Parties: UNITED STATES of America, Appellee, v. Frank SACCO and Benjamin Gentile, Appellants. ockets 76-1373 and 76-1374.
• Court: U.S. Court of Appeals — Second Circuit

Page 552

563 F.2d 552

UNITED STATES of America, Appellee, v. Frank SACCO and Benjamin Gentile, Appellants.

Nos. 1107, 1108, Dockets 76-1373 and 76-1374.

United States Court of Appeals, Second Circuit.

Argued July 20, 1977.

Decided Oct. 5, 1977.

Frank Sacco, appellant pro se. ¹

Donald E. Nawi, New York City (Howard L. Jacobs, New York City, of counsel), for appellant Gentile.

Michael C. Eberhardt, Sp. Atty. U. S. Dept. of Justice (Robert B. Fiske, Jr., U. S.

Atty., Audrey Strauss, Asst. U. S. Atty., Southern District of New York, New York City, of counsel), for appellee.

Before MESKILL, Circuit Judge, and NEAHER ^* and COFFRIN ^**, District Judges.

NEAHER, District Judge:

Frank Sacco and Benjamin Gentile appeal from judgments of conviction entered upon jury verdicts returned on September 26, 1972 after a nine-day trial in the Southern District of New York before the Honorable Lee P. Gagliardi, District Judge. Appellants were found guilty of one count of making an extortionate extension of $1,000 credit and, along with a co-defendant John Rhines, not a party to this appeal, of one count of conspiring to participate in the use of and five counts of using extortionate means to collect extensions of credit, in violation of 18 U.S.C. §§ 891, 892, 894 and 2. ²

Shortly before trial, Sacco had refused to proceed with counsel assigned to try the case and elected to conduct his defense pro se. The attorney remained to assist Sacco in the course of the trial to prevent errors as to the law. Following denial of the co-defendants' motions for a discretionary severance on grounds of prejudice, Rule 14 F.R.Crim.P., the trial proceeded against all defendants.

Of appellants' claims of error raised on appeal, we find only the following to warrant discussion: (1) Gentile's claim that the trial of his case should have been severed from that of Sacco because of Sacco's prejudicial remarks to the jury in the conduct of his pro se defense; (2) Gentile's and Sacco's claim that their convictions should have been set aside because the government's evidence was tainted by illegal wiretapping; and (3) Sacco's claim that it was error to summarily deny his taint motion because of his failure to appear at the taint hearing.

Finding no merit in any of appellants' claims, we affirm.

I.

In view of the nature of the issues raised on appeal, we summarize only briefly the facts the jury could have found beyond a reasonable doubt from the evidence adduced by the government. That evidence was more than sufficient to establish that in 1970 Sacco, aided and abetted by Gentile, engaged in a loan shark extortion of one James Sonny Robbins, the owner of an auto wrecking business, and that Gentile and Rhine, as Sacco's collectors, attempted with threats of violence, explicit and implied, to collect payments on loans made to Robbins by putting him in fear of physical harm if he failed to pay.

Robbins' problems began in May or June 1970 when Sacco and Gentile came to his junkyard in a bullet-ridden car and Sacco told Robbins "We got to get rid of this car." In connection with its disposal, Robbins accepted a $1,000 loan and was told he would have to make payments of $75 per week which was equivalent to an annual interest rate of 260%. Robbins made the payments for a few months but then fell behind. This led to a succession of telephone calls The jury was not required to credit Sacco's attempt to show that he was merely a partner in Robbins' junkyard and that the $75 weekly payment he acknowledged receiving was his share of the profits and not interest. Suffice it to say that the jury's verdict against all defendants was amply supported by the evidence and that Sacco's contention that the element of fear on Robbins' part was not sufficiently shown is frivolous. Accordingly, we turn to the principal issues raised by appellants.

and visits from Sacco, Gentile and Rhines demanding that Robbins continue payments on the amount owed, which was said to have increased to $9,000. On these occasions statements were made by appellants intimating that neither Robbins nor his wife or children would have any trouble "as long as you keep your payments up" but suggesting that "rough boys" would be sent if Robbins failed to do so. Robbins understandably viewed these as threats of physical harm to himself or his family if he failed to make the demanded payments.

II. SEVERANCE

Gentile claims that Sacco made prejudicial remarks about him to the jury while conducting his defense pro se which deprived Gentile of his right to a fair trial, and it was error not to grant him a separate trial. The prejudice urged is that Sacco's repeated statements to the jury about Gentile could not be counteracted by cross-examination because Sacco did not testify. Cf. Bruton v. United States, 391, U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

This case illustrates that a defendant's right to defend a criminal charge pro se, see 28 U.S.C. § 1654 and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1976), may not be an unmixed blessing in a multi-defendant case even when assisting counsel is assigned. The trial had no sooner begun than Sacco told the jury in his opening statement that Gentile "will testify in this trial that he acted on my instructions to collect monies from Mr. Robbins which were due me . . . (and) never threatened Mr. Robbins in any manner." Gentile, however, had changed his mind about testifying after previously telling Sacco he would do so, and did not take the stand.

While Sacco's statement was unfortunate, it was not such as to require a severance. Gentile's counsel made no objection when the remark was uttered and did not request a curative instruction. ³ Furthermore, in moving for a mistrial, he did not argue that the remark was inculpatory, but rather that the jury would expect Gentile to testify and would not be able to forget that when he failed to take the stand. We find no merit in those contentions. Sacco's opening statement was if anything exculpatory, not inculpatory. Prejudice was most unlikely when Judge Gagliardi in his introductory remarks had already informed the jury that what was said in opening statements was not to be considered as evidence, and later on in his final instructions made it clear that the defendants had an absolute right not to testify.

Nor do we agree that Sacco's conduct of his defense was so inept or comments he made in summation so prejudicial as to deprive Gentile of a fair trial. ⁴ United States v. Calabro, 467 F.2d 973 (2 Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973); United States v. Aviles, 274 F.2d 179 (2 Cir.), cert. denied, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960). Cf. United States v. Bubar, 467 F.2d 192, 205 (2 Cir. 1977). Sacco's cross-examination of government witnesses and questioning of his own witness must be viewed in light of the defense of collective innocence assumed by the defendants. None of the matters referred to in Gentile's catalogue of Sacco's tactical errors ⁵ were so antagonistic or inconsistent with that defense as to prejudice his co-defendants. Compare United States v. Johnson, 478 F.2d 1129 (5 Cir. 1973), and DeLuna v. United States, 308 F.2d 140 (5 Cir. 1962), with United States v. DiGiovanni, 544 F.2d 642 (2 Cir. 1976), and United States v. Barrera,486 F.2d 333 (2 Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1944, 40 L.Ed.2d 291 (1974).

Similarly, Sacco's comments in summation cannot be said to have prejudiced Gentile. Although there was no testimony of a conversation between the two, Sacco, in recounting Robbins' testimony of his need for $1,000 and Gentile's reply that he would talk to the boss, added "So Benny (Gentile) spoke to me." Whether Gentile and Sacco had a conversation was not a fact in dispute. The evidence was uncontradicted that after Gentile's visit, he and Sacco returned and offered Robbins the money.

Other comments of Sacco that there was no conspiracy to put fear into Robbins, that Gentile did what he was told, and that defendants did not deny meeting with Robbins and probably had many more meetings, were neither inculpatory nor inconsistent with defendants' collective view of the evidence. When the statements were made, defense counsel neither objected or requested a curative instruction, although given ample opportunity to do so by the trial judge. In addition, Judge Gagliardi reminded the jury during Sacco's summation that they were to be concerned solely with the evidence, not comments of counsel, and that their recollection of the evidence was controlling. In the circumstances, we find no substantial prejudice to Gentile by reason of Sacco's remarks.

Nor was there a violation of Gentile's sixth amendment right of confrontation, as he contends. For Bruton to apply, the statements of a nontestifying co-defendant must be " 'clearly inculpatory' as to the complaining co-defendant and (be) 'vitally important to the government's case.' " United States v. Wingate, 520 F.2d 309, 313 (2 Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976); United States v. Catalano, 491 F.2d 268, 273 (2 Cir.), cert denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974); United States ex rel. Nelson v. Follette, 430 F.2d 1055, 1058 (2 Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 899, 27 L.Ed.2d 818 (1971). That was not the case here.

Although the record here reveals no abuse of discretion in the denial of a severance, the problem of the pro se defendant which confronted the district court and counsel for co-defendants deserves comment. As more and more defendants appear pro se, that problem is certain to recur. Accordingly, it may be useful to note the steps taken by Judge Gagliardi to minimize the potential for prejudice to co-defendants, all of which we commend, and to suggest additional precautions which might serve to prevent a pro se defendant from so prejudicing a jury as to require...