United States v. Annerino, 73-1201-73-1203.

• Decision Date: 12 April 1974
• Docket Number: No. 73-1201-73-1203.,73-1201-73-1203.
• Citation: 495 F.2d 1159
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel J. ANNERINO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.2d 1159 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Samuel J. ANNERINO et al., Defendants-Appellants.

Nos. 73-1201-73-1203.

United States Court of Appeals, Seventh Circuit.

Argued February 25, 1974.

Decided April 12, 1974.

John C. Ambrose and Philip J. Schmidt, Jerome Feldman, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., Frederick H. Branding, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before KILEY, Senior Circuit Judge, SPRECHER, Circuit Judge, and JAMESON,^* Senior District Judge.

JAMESON, Senior District Judge.

Appellants were convicted in a nonjury trial of conspiracy to use extortionate means, as defined in 18 U.S.C. § 891(7)¹, to collect and attempt to collect an extension of credit from Ernest White and to punish White for nonrepayment, in violation of 18 U.S.C. § 894.

Statement of Facts

The evidence, in the light most favorable to the Government, may be summarized as follows :

White had shared an office with appellant Metrick. When White left he owed Metrick approximately $3,500. Between September, 1970 and June, 1971 White made two payments by check on this debt.

On June 19, 1971 appellant Bean, with Jeff Metrick, who was indicted but acquitted, visited White. Jeff Metrick told White that they had taken over his debt to Jeff's brother Brian and were there to collect $7,000. When White disputed the amount, Bean said that there "wasn't going to be any further monkeying around on this, that they were going to collect the money" ; that if White didn't come up with the money, he could be "severely hurt" and that since they knew where his children lived, he should take that into consideration.

White called Brian Metrick and asked if the visit was a joke. He was told that Metrick had assigned his debt as collateral for a loan and that it "was completely out of his hands", and because he was dealing with "very dangerous people", who "meant what they said", he should do everything possible to pay off the loan. White then contacted the F.B.I. and subsequent conversations were surveilled.

White met with the three appellants at a restaurant on June 25, 1971 when, after some discussion, Annerino said "Let's cut out the bullshit and get down to the business why we are here". Annerino told White to bring the $2,250, which White admitted owing, the following Monday, when they would determine the exact amount of the balance owing and the manner of payment. Annerino stated that they knew where White's wife lived and where his daughters attended school ; that White should forget any ideas about going to the authorities because Annerino would be "out on bond damn quick" and they were backed by a large organization with "five or six guys that could take his place". Bean stated that if White were going into the hospital, "it was going to be because they put him there" and that if he had any thought of running and hiding he better do it pretty fast. Annerino said it wouldn't do White or his family any good if he did flee.

A few days later White met with Bean and Brian Metrick. Bean arrived first and when he found White did not have the money, stated that Annerino was "uncontrollable and had a very bad temper" and if he were present and found White did not have the money, he would have "pulled a gun and shot White's guts out right under the table". After Metrick arrived there was some discussion regarding another meeting and the payment of $4,000 in addition to the $2,250, and Bean said if White didn't make the payments they were going to "dig him a big hole".

In monitored telephone conversations Metrick told White, inter alia, that "Sam Annerino and Harold Bean are just enforcers. They report to somebody else"; that "these fellas have killed people, to be perfectly honest with you" ; that if White did not show up with the money, "they'll kill you". Bean asked White if he wanted to "end up in a coffin".

Contentions on Appeal

All appellants contend that the indictment should have been dismissed because it was based upon the hearsay testimony of one F.B.I. agent. Annerino argues that (1) the district court erred in not dismissing his case for the denial of a speedy trial ; (2) a statement made by him was admitted in violation of Miranda; (3) the trial court erred in admitting hearsay statements of his co-conspirators ; and (4) the evidence was insufficient to sustain the conviction. Bean and Metrick contend that the Government failed to present required proof that they were members of organized crime and their activities involved an extortionate extension of credit. All appellants argue that the Government failed to prove that White's debt involved an extension of credit, as defined in 18 U.S.C. § 891(1).

Indictment

The grand jury heard the testimony of one F.B.I. agent who related conversations he had with White and conversations White had with appellants and related to the agent. In addition the jury heard tapes of conversations between White and appellants, with the F.B.I. agent, who had monitored and recorded the tapes, stating the names of the speakers.

Indictments based upon hearsay of this nature are not improper. As this court said in United States v. Aloisio, 440 F.2d 705, 707 (1971), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed. 2d 51 (1971) :

"In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, the Supreme Court categorically refused to invalidate an indictment based upon hearsay evidence under either the Fifth Amendment or its supervisory powers over federal courts. This Court has repeatedly rejected similar attacks upon the quality of evidence relied upon by grand juries."

It is true, as appellants argue and this court has recognized, that the Second Circuit has criticized the practice of relying on investigative reports and similar hearsay before a grand jury. In United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), upon which appellants heavily rely, judgments of conviction were reversed with instructions to dismiss the indictment, where the jury may have been misled into thinking it was getting eyewitness testimony whereas it was actually being given an account whose hearsay nature was concealed.² There is no evidence here to suggest that the grand jurors may have been misled into thinking the agent was testifying from personal knowledge. Nor is there merit in appellant's argument that if White had testified the jurors could have questioned him and concluded that an indictment should not be returned.

Speedy Trial

The indictment was returned on July 20, 1971, and the trial commenced on November 3, 1972. Annerino contends that this 15-month delay violated his Sixth Amendment right to a speedy trial.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the Court, recognizing that the right to a speedy trial "is necessarily relative", 407 U.S. at 522, 92 S.Ct. 2182, identified four factors to be considered in determining whether a particular defendant has been deprived of his right : "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192.

The Government concedes that a 15-month delay in this type of case gives rise "to a certain presumed amount of prejudice". The delay in itself, however, does not constitute a denial of the right to a speedy trial. As the court noted in Barker, there is "no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months", 407 U.S. at 523, 92 S.Ct. at 2188, and we have previously held that even longer delays in cases of a similar nature are not per se deprivations of the right to a speedy trial. See, for example, United States v. DeTienne, 468 F.2d 151, 156-157 (7 Cir. 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973) (19-month delay).

The Government correctly points out that the reason for the 15-month delay is attributable to an "amalgam of factors". On October 8, 1971 counsel for Annerino made his first appearance in connection with a Government request for a protective order with respect to surveillance tapes. The court noted that "we are nowhere near ready for trial" and set a motion schedule pursuant to local court rules.

At a status hearing on November 10, 1971 counsel for Annerino's co-defendants were granted an additional 14 days to file motions. Without objection the case was continued until January 27, 1972. At another status hearing on that date counsel for co-defendant Bean was granted an additional ten days to file a motion to suppress. On March 28 the trial was set for June 20. On June 20 the court was informed that counsel for Bean was engaged in a trial and that counsel for the Metricks had suffered a heart attack and would "not be available for trial until the fall". Counsel for Annerino was granted ten days to file a memorandum in support of a renewed motion to dismiss for lack of a speedy trial.

At a further hearing on July 21, 1972³ the court suggested that "If Mr. Annerino wants a speedy trial, he can go to trial next Monday, separated from the other defendants". The Government indicated that some of its witnesses would not be available, and the court set the trial for September 21. The Government was ready for trial on that date, but the court was informed that counsel for Bean was commencing a trial before another judge and counsel for the Metricks would not be recuperated from his heart attack until mid-October. The court continued the case to November 1, noting that he did not think the "circumstances of this delay" sufficiently prejudicial to Annerino to "justify separating him out for a separate trial".

In discussing the reason for the delay the Court stated in Barker, supra at 531, 92 S.Ct. at 2192:

"Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be

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