U.S. v. Taglione, 76-2257

• Citation: 546 F.2d 194
• Decision Date: 31 January 1977
• Docket Number: No. 76-2257,76-2257
• Parties: 2 Fed. R. Evid. Serv. 647 UNITED STATES of America, Plaintiff-Appellee, v. Joseph TAGLIONE, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 194

546 F.2d 194

2 Fed. R. Evid. Serv. 647

UNITED STATES of America, Plaintiff-Appellee, v. Joseph TAGLIONE, Jr., Defendant-Appellant.

No. 76-2257.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1977.

Theodore J. Sakowitz, Fed. Public Defender (Court-Appointed not under Act), Michael J. Rosen, Asst. Fed. Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Michael P. Sullivan, William R. Northcutt, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COLEMAN, AINSWORTH and INGRAHAM, Circuit Judges.

COLEMAN, Circuit Judge:

I. FACTS

Appellant, Joseph Taglione, Jr., was convicted of unlawfully and wilfully committing extortion, which extortion did obstruct, delay and affect commerce and the movement of articles and commodities in commerce in violation of Title 18, U.S.C., § 1951. ¹ The relevant facts are as follows: On March 1, 1975, Shell Oil Company shipped a box of D-16 credit card invoices ² totalling $78,000 from its distribution plant in Zionsville, Indiana, to its credit card center in Tulsa, Oklahoma, via transport truck and air carrier.

These invoices never reached the Tulsa Center. Instead, the box containing the invoices, along with two boxes containing live worms, was found by appellant and two friends ³ lying on the side of the road in the snow at the Indianapolis airport. The boxes containing the worms were stamped "Allegheny Airlines" and were returned to that airline. The box containing the invoices was stamped only "Shell Oil Co., Credit Card Center, Tulsa, Okla." This box contained four smaller cartons which were divided between the three men, placed in their luggage and taken to Fort Lauderdale, Florida. Taglione testified that he felt this was necessary to protect the property since the weather would probably have destroyed them if left on the ground.

On Monday, March 3, Al Hogan, credit manager for the Tulsa Center, received a phone call on Shell's toll free number from Taglione, posing as one John Tumarco. ⁴ The caller indicated that he represented a client who had found $100,000 worth of Shell invoices which he would release to Shell for a finder's fee of $25,000. Hogan responded that $25,000 was too high since Shell could probably restore most of the invoices through the dealer-held copies. He indicated, however, that Shell might consider a slight reward. At no time did Hogan tell Taglione that Shell would not consider a negotiated reward.

Hogan testified that he asked for the invoices gratuitously but Taglione refused, indicating that he would destroy them if the fee was not paid. The appellant did not recall Hogan demanding their return without a finder's fee but admitted he did "offer" to destroy the invoices if Shell could reconstruct them and they were actually worthless.

A second phone call on March 3 by Taglione, still posing as Tumarco, was received by Jack Hall, manager of the Accounting & Services Department at the Tulsa Center. Taglione gave a description of the invoices he was holding and a March 4 call was arranged. At that time, a further detailed description of the invoices was given, to satisfy Shell that these were the missing invoices. A meeting was also arranged the next day for the supposed Tumarco to meet with Bill Edwards, a corporate security representative for Shell Oil Company, to check the authenticity of the invoices. Concerning the reward, Hall said he would have a figure by that time. This conversation was taped and played to the jury.

The March 4 meeting of Edwards and Taglione at the Shell Oil Port Everglades office in Fort Lauderdale was also taped and played to the jury. That tape exposed the appellant, using the name of John Tumarco, acting as business manager for an undisclosed party, negotiating for a reward or finder's fee of 25% of the worth of the invoices, about.$19,000. A meeting for March 6 was arranged for the transfer of the invoices and the.$19,000.

Edwards and Taglione met on March 6 at the Central Bank of North Dade at the suggestion of Taglione, since, as he testified, cash would be involved and he had dealt at this bank for seven years. This meeting was also taped. The tape revealed that Taglione offered to put the money in a safety deposit box and requested a letter of appreciation indicating the amount of the reward. He also requested a polygraph test to prove that the invoices were not stolen. Taglione hesitated in producing the invoices, at one point driving off and then returning; further negotiations for the requested amount were held and Taglione finally produced the invoices and was arrested.

On February 2, 1975, Taglione, Thomas Schlaebitz, and Richard D'Andrea were tried on a 3-count indictment charging all three defendants with conspiracy to obstruct, delay and affect commerce and the movement of articles and commodities by extortion in that the defendants conspired to obtain approximately $20,000 from Shell Oil Company with the consent of Shell Oil being induced by the wrongful use of the fear of financial and economic injury in that the defendants would withhold from Shell Oil a shipment of Shell credit card invoices unless and until Shell paid the $20,000. A second count charged the three defendants with actual commission of the crime.

Defendants Schlaebitz and D'Andrea were acquitted of both counts on February 5, 1976. The jury was unable to reach a verdict as to Taglione on either count and a mistrial was declared.

On April 22, 1976, the second trial commenced against Taglione. Because both alleged co-conspirators had been acquitted the conspiracy count was dismissed. On April 23, the jury returned a verdict of guilty on the remaining count and appellant was sentenced to 12 years.

The conviction is now vigorously attacked on several points.

First, it is said that the Court erred in denying appellant's motion for mistrial based upon the prosecutor's comments in closing argument concerning appellant's prior record on a marijuana conviction. We find no merit in this argument since the evidence had been brought out in cross examination of the defendant and counsel had ample opportunity for an effort to rehabilitate in his own closing remarks.

II. JURY INSTRUCTION

On the ground that it denied him the right of having his defense submitted to the jury, appellant challenges the trial court's charge to the jury on the rights of a finder of lost property. The Judge instructed the jury that:

"(T)he finder of a lost property is not entitled to the property as against the true owner. The finder of goods is entitled to recover from the owner only the necessary and reasonable expenses incurred in the successful recovery and preservation of the goods.

"It is the duty of a finder of lost goods to return them to the owner if he is known and, if the owner is unknown, to follow the reasonable procedures for discovering the true owner."

Appellant's objection is that the use of the word "only" led the jury to believe that as a matter of law the appellant could not bargain for or request a reward. Appellant's defense, ⁵ not mentioned in the charge, was that his dealings with Shell were merely negotiations for a reward or a finder's fee.

The trial court's charge to the jury is a correct statement of the law as far as it goes. See 1 Am.Jur.2d Abandoned, Lost, Etc. Property §§ 19 and 28; 36A C.J.S. Finding Lost Goods § 4. A finder is entitled as a matter of law only to his expenses. However, it does not follow that it is a criminal offense to ask for more, as long as the request is not accompanied by extortionate conduct.

There was evidence in the record, which, if credited by the jury, could have supported Taglione's defense. The substance of the defendant's theory should have been submitted. There was no evidence that Shell made an absolute demand for the return of the invoices, with no reward or expenses to be paid rendering Taglione's continued possession of the invoices unlawful per se. The evidence showed that Taglione offered the return of the invoices in exchange for 25% of the worth of the invoices. Shell never rebuffed Taglione's negotiations. To the contrary, it joined in the bargaining as to the amount of a "finder's" fee. Hogan spoke of the possibility of a slight reward; Hall told Taglione that Shell would give him a figure at his first meeting with Edwards; Edwards stated that for such a sum he would have to consult a higher-up and asked if Taglione wanted cash. All this does not raise an open and shut defense, but it does raise a theory of defense which the defendant was entitled to have considered.

Where the evidence presents a theory of defense for which there is foundation in the evidence, refusal to charge on that defense is reversible error. Strauss v. United States, 5 Cir. 1967, 376 F.2d 416, 419. In United States v. Megna, 5 Cir. 1971, 450 F.2d 511, we said:

Nearly fifty years ago the Circuit Court of Appeals for the Fifth Circuit laid down the rule that "Where the evidence presents a theory of defense, and the court's attention is particularly directed to it, it is reversible error for the court to refuse to make any charge on such theory". . . .

450 F.2d at 513.

As we said in Strauss, supra :

We find no requirement that a requested charge encompass, in the trial judge's eyes, a believable or sensible defense. The judge is the law-giver. He decides whether the facts constituting the defense framed by the proposed charge, if believed by the jury, are legally sufficient to render the accused innocent. The jury is the fact-finder.

The jury did not have to believe the defenses, but it should have been given the opportunity.

376 F.2d at 419.

Although Taglione is entitled to a new trial on the foregoing ground, we should discuss appellant's other points of error which may arise if the case is tried for a third time.

III. EVIDENCE OF A SUBSEQUENT SIMILAR OFFENSE

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