U.S. v. Schweihs
| Decision Date | 09 November 1992 |
| Docket Number | 90-1464,Nos. 90-1463,s. 90-1463 |
| Citation | 971 F.2d 1302 |
| Parties | 36 Fed. R. Evid. Serv. 369 UNITED STATES of America, Plaintiff-Appellee, v. Frank John SCHWEIHS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony F. DADDINO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mark A. Flessner, Asst. U.S. Atty. (argued), Office of U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee U.S.
Allan A. Ackerman and Sharon G. Kramer (argued), Chicago, Ill., for defendant-appellant Frank J. Schweihs.
John L. Sullivan, Chicago (argued), for defendant-appellant Anthony F. Daddino.
Before POSNER and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
The fifteen counts of the indictment of Schweihs and Daddino all involved the Hobbs Act, 18 U.S.C. § 1951. The Act punishes anyone who affects interstate commerce by extortion, or attempts or conspires so to do. COUNT ONE charged Schweihs and Daddino with conspiring with each other and other persons to affect interstate commerce by extortion of money from William R. Wemette and Leonard Cross. The conspiracy allegedly began in the summer of 1985 and continued through September 15, 1988.
COUNTS TWO, THREE, and FOUR charged Schweihs and Daddino with attempts to affect interstate commerce by extortion by obtaining money from Wemette and COUNTS FIVE through THIRTEEN charged Schweihs alone with similar attempts (except that in COUNT SIX the money was allegedly obtained from Cross). These substantive counts alleged the amounts of money and the date each was obtained (from May 1, 1987, to September 15, 1988), and the proof at trial was clear that the amounts were obtained on the dates charged. Attempt was charged on the theory that because the money paid by Wemette and Cross was reimbursed by the FBI, Wemette may not have been hindered in purchasing supplies in interstate commerce, and commerce may thus not have been affected and the Hobbs Act offense not consummated.
COUNT FOURTEEN charged Schweihs with an attempt to affect interstate commerce by extortion by attempting to obtain money from Steven Toushin. 1 Here neither the extortion nor the affect on commerce was allegedly consummated. In any event Schweihs was acquitted on this count.
COUNT FIFTEEN charged Schweihs with soliciting Wemette and Cross to engage with Schweihs in obtaining money from Toushin by the wrongful use of actual and threatened force, violence and fear, intending that Wemette and Cross engage in conduct constituting a felony under the Hobbs Act. Solicitation under these circumstances was charged as an offense under 18 U.S.C. § 373(a).
Following a joint jury trial, the jury found Schweihs guilty on COUNTS ONE, FOUR through THIRTEEN and FIFTEEN and not guilty on COUNTS TWO, THREE and FOURTEEN. The jury found Daddino guilty on COUNTS ONE through FOUR. The district judge sentenced Daddino to 41 months imprisonment on COUNT ONE and 45 months imprisonment on COUNTS TWO and THREE to run concurrently and 5 years of probation on COUNT FOUR to run consecutively. 2 Schweihs was sentenced to 157 months imprisonment on COUNTS ONE, SIX through THIRTEEN and FIFTEEN and 180 months for COUNTS FOUR and FIVE to run concurrently. 3
Schweihs and Daddino now appeal their convictions and their sentences.
For purposes of this opinion, we construe the evidence in the light most favorable to the verdict. William Wemette was the owner of an adult video store in Chicago. He had a business assistant and friend by the name of Leonard Cross who lived with him. From about 1974 to 1988, Wemette and Cross paid "street tax" to members of the Chicago "Outfit," an organized crime group, apparently willing and able to harm anyone who would not pay. Wemette and Cross paid the "street tax" to protect themselves and their business from harm. In 1984, Wemette's business was having financial difficulties, but Amato, the current "street tax" collector, informed Wemette that if he did not pay the tax, his business would be shut down possibly by an accident or a fire. Wemette complained to other organized crime figures and was told to contact Frank Schweihs. He met with Schweihs, whom he knew had a reputation as a violent person, and Schweihs arranged for a new person, Anthony Daddino, to begin collecting the "street tax" payments. Thereafter, Daddino collected $1,100 per month from Wemette and Cross.
In 1987, Wemette contacted the FBI about the "street tax" payments. Wemette agreed to work undercover for the FBI and record his conversations with Daddino and Schweihs. After several months, Wemette, at the direction of the FBI, refused to make any further payments to Daddino until his protests about his competitor's expansion were heard by someone higher up in the "Outfit." Daddino advised him against withholding the payments and warned him that he might not like the next guy that came to collect. Schweihs then began to collect the monthly payments from Wemette and Cross. When Schweihs came to their apartment to collect the tax, he often discussed the possibility of expanding or moving Wemette's business and making himself a partner in that business. On numerous occasions, Schweihs mentioned his connections with the "Outfit." They also discussed the competition from Steven Toushin's nearby video business, and Schweihs asked Wemette and Cross for information about Toushin and his business. Video recordings and transcripts of most of these conversations were introduced at the trial.
The taped conversations took place on some twenty occasions from May 1, 1987, to September 15, 1988. Primarily they were between Daddino and Wemette, or Schweihs and Wemette, with occasional participation by Cross. During a number of these conversations a payment of "street tax" was made. The conversations did not contain express threats that Wemette or Cross or their business would be harmed if the payments were not continued. Schweihs in particular often spoke about mutual friends and events during the period he and Wemette had known each other. He offered favors and advice concerning the operation of Wemette's business and listened to his complaints. A jury could have interpreted the conversations as friendly in tone.
On the other hand, the making of the same or similar payments of "street tax" over many years, without receiving legitimate goods or services in return, is itself the basis of a reasonable inference that the payments were induced by fear of harm. The conversations clearly indicated that Daddino and Schweihs were acting for others in an organized way. Schweihs made reference to several instances of violence and death, subject, in context, to the interpretation that Schweihs was associated with those events, if not a perpetrator of them. References to an "accident" happening to someone or something were a euphemism for violent harm befalling that person or property.
The critical issues for the jury were whether the payments by Wemette and Cross had been induced by wrongful use of threatened force or fear, including fear of harm to business or property, and whether the defendants were innocent collectors, or knew that the payments were the product of fear. 4 The possibility that the jury might give a benevolent interpretation, as sought by defendants, made other evidence tending to show knowledge and malevolent intent especially significant.
Nick LaPapa and Joe Lascola both testified to prior extortionate dealings by Schweihs. Schweihs argues that this testimony was inadmissible because the prior alleged extortionate dealings were dissimilar from the conduct charged, and the evidence created hostility in the jury and resulted in unfair prejudice against Schweihs. Schweihs further argues that admission of this evidence of prior bad acts constructively amended the indictment in violation of the fifth amendment.
Nick LaPapa testified that in 1986 he had just returned home from the hospital when Schweihs visited him. LaPapa was president of a service employees' labor union. Schweihs told LaPapa that he wanted to be partners with LaPapa in the union and that if LaPapa did not agree he would hurt him very badly. LaPapa testified that he feared Schweihs and knew that he had a reputation as a violent person. LaPapa could not give Schweihs an immediate answer, and finally, Schweihs gave him a week to decide but threatened him again as he left.
Schweihs set up another meeting with LaPapa to request that LaPapa remove certain union officers and replace them with Schweihs' friends. When LaPapa said that he could not remove the officers, Schweihs threatened to break the officers' legs and force them to resign. After this meeting, LaPapa went to the FBI. Wearing a body recorder, LaPapa met with Schweihs in a restaurant. Schweihs referred to the first meeting in LaPapa's home and mentioned the name of a union employee from whom he wanted LaPapa to get money. LaPapa became angry and told Schweihs that he had had no right to come into his home and threaten him and his family. Schweihs then became angry and stormed out of the restaurant.
Joe Lascola testified that when he opened a beef stand in 1981 Schweihs convinced the city to remove a traffic island, thus improving access to the beef stand. Lascola had not asked Schweihs to do this. Schweihs then began to comment that Lascola and he were partners in the beef stand. There was also evidence tending to show that Schweihs spent six months reconstructing a bar owned by Lascola. Lascola did not request his help and did not pay him for his time. Schweihs made all of the decisions about how the bar would be reconstructed. After the reconstruction was finished, Lascola testified that...
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