U.S. v. Santarelli, 84-5481
| Decision Date | 27 November 1985 |
| Docket Number | No. 84-5481,84-5481 |
| Citation | 778 F.2d 609 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dominic SANTARELLI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Rosen & Rosen, P.A., E. David Rosen, Miami, Fla., for defendant-appellant.
Robert E. Lindsay, Donald W. Searles, Appellate Section, Dept. of Justice, Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., Michael L. Paup, Chief, Appellate Section, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT and HENDERSON, Circuit Judges, and NICHOLS *, Senior Circuit Judge.
I.
On August 15, 1980, a grand jury sitting in the Southern District of Florida returned an eight-count indictment against Dominic Santarelli, the appellant, Joan Santarelli, his sister-in-law, and Frank Ammirato. Count one charged the defendants with conspiracy to use extortionate means to collect extensions of credit made to Michael C. Abbate and other persons, in violation of 18 U.S.C. Sec. 894 (1982). 1 Counts two through six charged the defendants with substantive violations of section 894. Counts seven and eight charged Dominic Santarelli with subscribing to income tax returns containing false statements for the years 1974 and 1975, in violation of 26 U.S.C. Sec. 7206(1) (1982). 2 On the date of the indictment, Ammirato was in federal custody on another charge; he was arraigned three days later and was denied bail. Dominic and Joan Santarelli became fugitives from justice.
On November 29, 1980, Joan Santarelli was arrested; she was arraigned thirteen days later. On January 26, 1981, she and Ammirato went to trial. After the jury was sworn, the court excused the jury and held a James hearing. 3 See United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). 4 At the conclusion of the hearing, the court dismissed the indictment as to both defendants. 5
On July 18, 1981, Dominic Santarelli was expelled from the Dominican Republic and upon his return to the United States was arrested at Miami International Airport pursuant to a warrant issued on the indictment in this case. A United States Magistrate arraigned him on July 20, and the following day the district court scheduled his trial for September 3, 1981. Prior to trial, Santarelli moved the court to suppress various items of evidence agents of the Federal Bureau of Investigation had obtained from his home in Ft. Lauderdale, Florida on September 26, 1975, pursuant to a search warrant. The district court referred the motion to a magistrate. After an evidentiary hearing, the magistrate filed a report recommending that the district court deny the motion. The court accepted the report and recommendation and denied the motion.
Dominic Santarelli went to trial before a jury on September 28, 1981. At the conclusion of the Government's case in chief, he moved for a judgment of acquittal on all eight counts of the indictment. The court granted his motion as to counts two through six but allowed count one, the conspiracy count, and counts seven and eight, the false tax return counts, to be considered by the jury. On October 6, 1981, the jury returned guilty verdicts as to counts seven and eight and a not guilty verdict as to count one. On June 7, 1984, 6 the district court sentenced Santarelli to concurrent two-year terms of imprisonment and a $10,000 fine, and Santarelli appealed.
Santarelli presents two claims of error. First, he contends that the district court erred in admitting into evidence the items the FBI obtained during the search of his home on September 26, 1975. Second, he contends that the district court erred in denying a requested jury instruction. We address these contentions seriatim.
II.
The FBI's search of Santarelli's Ft. Lauderdale residence took place pursuant to a warrant issued the same day on the basis of an FBI agent's affidavit. In the affidavit, Special Agent Elie T. Scott described Santarelli as a "loan shark" who had been operating a loansharking business out of his residence for several years. Agent Scott based his description of Santarelli's illicit activity on information he had received from one of Santarelli's borrowers, Michael C. Abbate, from other FBI agents, and from a September 19, 1975 telephone conversation between Abbate and Santarelli which Abbate permitted him to monitor.
According to Agent Scott's affidavit, Abbate borrowed large sums of money from Santarelli, in a series of loans totaling in excess of $350,000, between the fall of 1971 and the date of the affidavit. The interest rates on these loans were either five or ten percent per week (i.e., 260 or 520 percent per annum). Abbate obtained these loans and made payments thereon at Santarelli's Ft. Lauderdale residence. The payments were made either to Santarelli, Joan Santarelli, or to loan collectors Frank Ammirato or Philip Damiano. In time, Abbate fell behind in his payments. Santarelli warned Abbate that further delays in making payment would lead to serious injury to Abbate and his family. Santarelli told Abbate that he had murdered five men who had defaulted on their loans and displayed a shotgun and other firearms at his home which he claimed were used to deal with delinquent borrowers. On August 19, 1975, Abbate went to Santarelli's residence to renegotiate the terms of his loan payments. On being advised of the purpose of the visit, Santarelli, to impress upon Abbate the importance of making his payments on time, told Abbate that he had recently murdered his confederate, Philip Damiano, because Damiano had failed to turn over some money he had collected for Santarelli. (The Ft. Lauderdale police subsequently advised the FBI that they had found Damiano's body in a parking lot with bullet holes in the back of the head on August 11, eight days prior to Santarelli's statement to Abbate.) Santarelli showed Abbate a brown cowhide wallet, a gold ring with a diamond setting, and a gold faced, gold banded wrist watch, which Abbate recognized as belonging to Damiano, and said that if Abbate did not keep his payments current he would have Abbate killed.
On September 17, 1975, Santarelli ordered Abbate to take out a $100,000 life insurance policy, with Abbate's wife as beneficiary, and have her assign her interest in the policy to Santarelli. Santarelli had previously caused Mrs. Abbate to assign to him her interest in two insurance policies on Abbate's life: a $50,000 policy issued by Security of Connecticut Life Insurance Company and a $100,000 policy issued by Guarantee Trust Life Insurance Company of Chicago.
On September 19, 1975, Abbate, at Agent Scott's request, telephoned Santarelli at Santarelli's Ft. Lauderdale residence and authorized Agent Scott to monitor the call. During the course of the ensuing conversation, Santarelli told Abbate to bring the "cabbage," i.e., cash, to Santarelli's house as Abbate had always done.
Agent Scott's affidavit was presented to a magistrate of the Southern District of Florida on September 26, 1975, and the magistrate issued the search warrant in question. The magistrate concluded that the affidavit demonstrated probable cause to believe that Santarelli's residence contained various items that were being used to violate, or that constituted evidence of the violation of, 18 U.S.C. Secs. 892-894 (1982), 7 and he authorized any special agent of the FBI or any other authorized law enforcement officer to seize them. Some of these items had been mentioned with specificity in Agent Scott's affidavit, and the magistrate repeated the descriptions in the warrant. These items were: "United States currency, promissory notes, life insurance policies, documents of assignment of life insurance policy proceeds, one brown cowhide wallet with attached notes and papers, one gold ring with diamond setting, and one wrist watch with gold face and gold band." The warrant also authorized the seizure of
all property constituting evidence of the crimes of making and conspiring to make extortionate extensions of credit, financing extortionate extensions of credit, and collections of and conspiracy to collect extortionate extensions of credit which are being kept there in violation of Title 18, United States Code, Secs. 892, 893 and 894. 8
During the search, the agents seized forty-four separately described items from Santarelli's upstairs bedroom which included weapons, ammunition, address books, ledgers, index cards with notations, promissory notes, miscellaneous business and investment records, a wallet, and a gold watch. The agents also seized the contents of a four-drawer filing cabinet located in the hallway closet adjoining the bedroom. These contents included additional index cards with notations, life insurance policies, documents assigning life insurance policy proceeds (including a policy on Michael Abbate), federal income tax returns, bank statements, and business and investment records.
After completing their search of Santarelli's residence, the agents took the items they had seized, which filled eight large cardboard boxes, to the local FBI office to prepare an inventory and determine which items were covered by the warrant. They apparently did so because of the prolonged period it would have taken them to perform this task at the residence.
Santarelli contends that the district court erred in refusing to suppress items seized in this search. He objects, in particular, to the admission into evidence of desk-top calendars for the years 1972, 1973, and 1975, and several index cards and slips of paper, all bearing notations relating to interest payments. It is undisputed that this evidence was indispensible to the Government's claim that Santarelli received interest income that he had not reported in his 1974 and 1975 federal income tax returns. 9 These documents are...
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