United States v. Briola, 71-1615

• Decision Date: 27 September 1972
• Docket Number: No. 71-1615,72-1246.,71-1615
• Citation: 465 F.2d 1018
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph BRIOLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

465 F.2d 1018 (1972)

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

Nos. 71-1615, 72-1246.

United States Court of Appeals, Tenth Circuit.

September 7, 1972.

Rehearing Denied September 27, 1972.

James L. Treece, U. S. Atty., and Richard J. Spelts, Asst. U. S. Atty., for plaintiff-appellee.

John J. Flynn and Michael D. Kimerer of Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for defendant-appellant.

Before LEWIS, Chief Judge, and KILKENNY^* and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

In this case the defendant-appellant, Joseph Briola, was charged with having knowingly and wilfully used extortionate means, contrary to § 891(7) of Title 18, United States Code,¹ in attempting to collect from one Donald Meyer, an extension of credit. The indictment further charged that the defendant, together with one James R. Clapes, who was not named as a defendant, caused harm to the person of said Donald Meyer, in violation of Title 18 U.S.C. § 894.²

Appellant Briola challenges the sufficiency of the evidence to establish that there existed an extension of credit within the meaning of the statute. He here contends that in the dearth of such evidence even the use of force does not fulfill the statutory requirements.³ Our inquiry will then be addressed mainly to this element, namely, adequacy of the evidence in support of the allegation that the defendant was engaged in attempting to collect an extension of credit.

In the fall of 1970 the defendant, together with one James R. Clapes and Anthony Ligrani, were engaged in a bookmaking operation. Defendant-appellant owned 50 percent of the enterprise and Clapes and Ligrani 25 percent each. In October 1970, Donald Meyer was hired by the partnership to work as phone man. His duty was to receive bets from customers over the phone and to relay this information to the partners. The evidence showed that Meyer had some of his own customers for whom he would pay and collect money as well as relay information to Briola, but as to most of his contacts he would merely receive the bets and relay the information. All of these bets were handled on a credit basis.

In November Meyer placed a series of bets on his own account and lost $900.00. He had placed these bets in the name of Wynn Don, who was said to have been a real person and an acquaintance of Meyer at Park Hill Golf Club. According to Meyer he had taken a bet from him on one occasion. Following this November incident, Meyer advised Briola and Clapes that he had personally made the bets that were charged to Wynn Don. He was told by Briola that "everybody can made a mistake but don't make any more." Thereafter, Meyer repaid this loss to the partnership.

He did not repeat this practice until the New Year's football games of January 1, 1971, but here again he used the name of Wynn Don in placing a number of bets. He lost approximately $10,000.00. Soon after the games Briola called Meyer to discuss the Wynn Don loss. Being uncertain as to what to do about this, Meyer called Clapes and told him that Wynn Don had left town and would not pay. Clapes in turn advised Briola, and thereafter the three partners set up a meeting at Briola's apartment with Meyer. This meeting lasted about an hour and a half.

Clapes testified that before the meeting the thought passed his mind that Meyer had placed the bet on his own behalf, and he further testified that Meyer was asked if any of the bet was his. At first, Meyer maintained that the bettor was really Wynn Don and the discussion was as to how to locate him. Meyer testified on direct that he agreed to repay the money since he was responsible for it. Thereafter, according to further testimony of Meyer, Briola grabbed him and slapped him several times. The upshot of it was that Meyer agreed to try to get the money from his mother and stepfather, and he was questioned closely as to their identity and financial abilities. After agreeing to get the money he said that Wynn Don would return to town later and he could get reimbursed from him. At that point Clapes administered a second beating. The sum total result was that Meyer was severely beaten as evidenced by black eyes, loose teeth and other outward indications. He also said that he was kneed in the groin. Arrangements were made for payment of the money the next day.

Defendant contends, as indicated above, that if anything the witness Meyer was being punished for stealing from his employer and that this particular incident was not within the proper scope of the statute in question since there was not the kind of extension of credit that was there contemplated.

It is undoubtedly true that this statute was primarily aimed at what is commonly called loansharking, but it is not limited in its terms to a loan in the sense of money passing. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). From our reading of Perez we are convinced that the real thrust of the legislation is directed to the use of extortionate means in order to collect monies which the creditors maintain are owing to them, regardless of whether the loan arose from a traditional type of loan or resulted from the assumption of responsibility as a result of force or threats. The relationship of the use of extortionate means of collecting extension of credit to bookmaking and similar activities was specifically noted in Perez. The indebtedness which is now before us is within the Act's ambit.

The term "to extend credit" is broadly defined by the statute (18 U.S.C. § 891(1)) as follows:

(1) To extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred.

Thus, the definition embraces a debt which has come into being under circumstances like the instant ones.

Subsection (3) provides:

(3) The term "debtor", with reference to any given extension of credit, refers to any person to whom that extension of credit is made, or to any person who guarantees the repayment of that extension of credit, or in any manner undertakes to indemnify the creditor against loss resulting from the failure of any person to whom that extension of credit is made to repay the same.

In the case at bar there is no insufficiency of evidence in the record to establish that the witness Meyer accepted responsibility for the payment of the debt prior to or contemporaneously with the use of force to collect it. The record also shows that Meyer was indeed the debtor from the inception of the debt and that Wynn Don was fictitious in this transaction at least, and hence the jury could very well have believed that the partners knew this from the previous incident. Also, since Wynn Don was Meyer's customer he was responsible for payment of the loss. Thus, there existed a basic debt involving an extension of credit within the meaning of the statute.

The defendant-appellant seeks to avoid responsibility by questioning the time sequence of the creation of the debt and the beating. He would have criminal responsibility turn on whether the beating was administered immediately before or immediately after the creation of the promise to pay. This analysis must fail, first, because the evidence, as previously noted, is sufficient to support a finding that the debt arose prior to the first beating. Apart from that, we are impressed that the series of events constituted a single transaction within which the acknowledgment of the debt and the extortionate means were substantially contemporaneous. That, to our way of thinking, is sufficient. As noted, the essence of the offense is the use of force or threats for the purpose of extorting money. If the crime is made to turn on specific sequence, it introduces an artificial standard which robs the definition of the offense of its substantiality. The meeting in question was for the purpose of collecting the $10,000.00 and there were no noticeable formalities. Certainly, the defendant and Clapes were not concerned with having a legally enforceable contract.

Finally, the...