U.S. v. Spillone

• Citation: 879 F.2d 514
• Decision Date: 07 March 1989
• Docket Number: Nos. 86-5037,86-5038 and 86-5043,s. 86-5037
• Parties: 28 Fed. R. Evid. Serv. 318 UNITED STATES of America, Plaintiff-Appellee, v. Vito SPILLONE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Clyde ABEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank CITRO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 514

879 F.2d 514

28 Fed. R. Evid. Serv. 318

UNITED STATES of America, Plaintiff-Appellee, v. Vito SPILLONE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John Clyde ABEL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Frank CITRO, Defendant-Appellant.

Nos. 86-5037, 86-5038 and 86-5043.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1989 (Nos. 86-5037 and 86-5038).

Submitted March 7, 1989 ^* (No. 86-5043).

Decided June 15, 1989.

Richard G. Sherman, Santa Monica, Cal., Yolanda Barrera, Chief Federal Public Defender, Phillip A. Trevino, Deputy Federal Public Defender, and David R. Evans, Los Angeles, Cal., for defendants-appellants.

Louis M. Fisher, Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California.

Before SNEED, FARRIS and PREGERSON, Circuit Judges.

SNEED, Circuit Judge:

Spillone, Abel, and Citro appeal their convictions for racketeering, extortionate extension of credit, and using extortionate means to collect extensions of credit. We affirm.

I. FACTS AND PROCEEDINGS BELOW

These appeals arise from a twenty-two count indictment charging eight defendants with operating a loan sharking enterprise.

Because none of the defendants challenges the sufficiency of the evidence, the facts will be recounted only briefly.

Defendants conducted a loan sharking business out of a licensed poker club in Bell, California. Spillone was the alleged leader of the group. Citro made loans and also collected payments. Abel also collected loan payments. The proceeds were turned over to Spillone who returned a percentage of the amount collected to each man. The group charged rates of five or ten percent interest per week.

Appellants and four others were charged with conducting an enterprise through a pattern of racketeering activity and conspiracy to conduct such an enterprise. See 18 U.S.C. Sec. 1962(c)-(d) (1982). Spillone was also charged with two counts of making extortionate extensions of credit and one count of using extortionate means to collect extensions of credit. See 18 U.S.C. Secs. 892, 894 (1982). He was convicted on all counts and sentenced to serve ten years and pay a $20,000 fine. In addition to the conspiracy count, Abel was charged with four counts of making extortionate extensions of credit and seven counts of using extortionate means to collect extensions of credit. He was acquitted of the RICO conspiracy count and one count of making an extortionate extension of credit; he was convicted of all other counts. He was sentenced to serve five years. Citro was charged with six counts of making extortionate extensions of credit and five counts of using extortionate means to collect extensions of credit. He was also acquitted of the RICO conspiracy count and one count each of making an extortionate extension of credit and using extortionate means to collect an extension of credit. He was sentenced to serve two years.

II. JURISDICTION

The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1982). This court's jurisdiction rests on 28 U.S.C. Sec. 1291 (1982).

III. SPILLONE'S APPEAL

A. Electronic Surveillance Orders

This court reviews de novo whether a wiretap order complies with 18 U.S.C. Sec. 2518 (1982 & Supp. V 1987). See United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986).

Spillone argues that the wiretap orders issued in this case did not comply with Sec. 2518(4)(c) (1982) which requires that the order include "a statement of the particular offense to which [the order] relates." Three wiretap orders were issued in this case. Spillone objects to the portion of each order that provides: "The interceptions sought herein [are for investigations] ... concerning the offenses enumerated in Section 2516 of Title 18, U.S.C." Section 2516 lists virtually every serious crime in the United States Code. See 18 U.S.C. Sec. 2516 (1982 & Supp. V 1987).

We must look to the entire order to determine if it complies with the statute. See United States v. Kalustian, 529 F.2d 585, 589 (9th Cir.1975). We have never required wiretap orders to specify the particular crimes involved in exact detail. For example, in United States v. Licavoli, 604 F.2d 613, 620 (9th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980), the court considered an order authorizing interception of conversations concerning "receiving, concealing, ... selling or disposing of goods ... knowing the same to be stolen ... in violation of Title 18, U.S.C., Section 2315." The defendant objected because the order did not limit the interception to conversations concerning stolen diamonds. The court held that the order complied with the statute. Id. In United States v. Turner, 528 F.2d 143, 153-55 (9th Cir.), cert. denied, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975), this court held that an order which identified conversations concerning "narcotics" was sufficient to satisfy the statute. See also United States v. Carneiro, 861 F.2d 1171, 1179 (9th Cir.1988) (holding that wiretap order complied with statute when it specified the particular statutes being investigated and stated that the defendant was being investigated for distributing controlled substances).

In this case, the order was similar to the order approved in Licavoli and much more specific than the one approved in Turner. Spillone ignores that paragraph A of the order listed the particular offenses which were being investigated and which included violations of the Hobbs Act, 18 U.S.C. Sec. 1951 (1982), interstate travel in aid of extortion, 18 U.S.C. Sec. 1952 (1982), extortionate credit transactions, 18 U.S.C. Secs. 892-894 (1982), conspiracies to commit those offenses, 18 U.S.C. Sec. 371 (1982), and a RICO violation, 18 U.S.C. Sec. 1962 (1982). In addition, the May 12, 1981 order provided that "these wire and oral communications will concern racketeering activities involving extortion and murder...." The two later wiretap orders followed the same format. The wiretap orders complied with the statute.

In addition to violating the statute, Spillone also argues that by failing to specify the offense, the wiretap order violated the Fourth Amendment's prohibition against general warrants. In Berger v. New York, 388 U.S. 41, 58-59, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040 (1967), the Court struck down a New York statute authorizing wiretaps, in part, because the statute did not require the court to specify the particular offense being investigated. This argument has no merit. By specifying the specific crimes being investigated, the warrant satisfied Berger.

B. Counsel's Closing Argument

Spillone next complains of the district court's interruption of his counsel's closing argument on seven occasions. The court instructed counsel not to interject his personal opinion into the argument and also prohibited counsel from using anecdotes and making analogies to well-known cases. Spillone has not cited any authority supporting his argument that this was reversible error.

"The trial court has broad discretion in controlling closing arguments, and, in the absence of an alleged violation of specific constitutional rights, we will apply an abuse of discretion standard of review." United States v. Schuler, 813 F.2d 978, 982 (9th Cir.1987). The trial court has a duty to control final argument and to prevent any improper arguments. See United States v. Young, 470 U.S. 1, 9-10, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1985). The trial court did not abuse its discretion in requiring counsel to confine his remarks to the record and in prohibiting counsel from making references to other cases.

C. Admission of Prior Conviction

Next, Spillone objects to the admission of a prior conviction. In 1971 Spillone was convicted of making an extortionate extension of credit and sentenced to twelve years confinement. He was released on parole in 1976 and discharged in 1981. Prosecutors urged admission of Spillone's prior conviction on the grounds that it showed intent and knowledge. The district court agreed, despite Spillone's representations that he would not argue intent. Spillone suggested that he would contend that the government's witnesses were fabricating their testimony. The district court gave a limiting instruction and then permitted the prosecutor to tell the jury that Spillone was convicted of extortionate extension of credit in 1971.

We review the trial court's decision to admit evidence of prior criminal acts under Fed.R.Evid. 404(b) for abuse of discretion. United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir.1987).

We use a four-part test to determine whether evidence is admissible under rule 404(b). See United States v. Miller, 874 F.2d 1255, 1268 (9th Cir.1989). The government has the burden of proving that the evidence satisfied this test. See United States v. Alfonso, 759 F.2d 728, 739 (9th Cir.1985). First, there must be sufficient evidence to support the jury's finding that the defendant committed the other crime. Miller, 874 F.2d at 1268-69. ¹ Spillone concedes that this is so. Second, the other crime must not be too remote. Spillone vigorously argues that the prior conviction was too remote because it was over ten years old.

Courts have seldom discussed the proper way to evaluate a defendant's objection that a prior bad act or conviction is too remote. The Seventh Circuit has suggested that remoteness must be considered in conjunction with other factors. "Questions about 'how long is too long' do not have uniform answers; the answers depend on the theory that makes the evidence admissible." United States v. Beasley, 809 F.2d 1273, 1277 (7th Cir.1987). We agree with the Seventh Circuit and decline to adopt an inflexible rule excluding evidence of prior bad acts after a certain amount of time elapses. Depending upon the theory of admissibility and the...