United States v. Burke
| Decision Date | 09 August 1974 |
| Docket Number | 73-1045.,No. 72-3742,72-3742 |
| Citation | 495 F.2d 1226 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James BURKE, Louis Lopez and Henry Hill, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Raul CHARBONIER and Luis Charbonier, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Barry A. Cohen, Paul Antinori, Tampa, Fla., for James Burke et al.
Raymond E. LaPorte, Tampa, Fla., for Raul Charbonier and Luis Charbonier.
John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for the United States.
Before WISDOM, AINSWORTH and GEE, Circuit Judges.
On appeal from their conviction for various gambling and extortion offenses, appellants raise issues of sufficiency of the evidence, admission of inadmissible hearsay, denial of the right to confrontation, failure to sever the trial of Burke, Hill and Lopez from the trial of Raul and Luis Charbonier, prosecutorial misconduct, improper jury instructions, and collateral estoppel. Concluding that their contentions are meritless, we affirm the convictions.
In November, 1970, the United States indicted James Burke, Henry Hill, Louis Lopez, Raul Charbonier and Luis Charbonier1 on five counts. The charges consisted of (1) making extortionate extensions of credit;2 using extortionate means of collecting debts;3 (3) interstate travel in furtherance of extortion; (4) interstate travel for promotion of an illegal gambling enterprise; and (5) use of interstate telephone facilities in an unlawful gambling enterprise.4
The scheme that led to the indictments was crude but effective. Raul Charbonier owned the Char-Pal, a combination lounge-liquor store in Tampa, Florida. His friend Gaspar Ciaccio also owned and operated, in conjunction with his brother Fano Ciaccio, a lounge-liquor store, the Temple Terrace Lounge, located not far from Charbonier's establishment. Early in 1970, Raul Charbonier approached Gaspar Ciaccio with a gambling proposition. Raul could obtain a rigged line or odds sheet on baseball games during the upcoming season from his cousin Pupi in New York, and he offered Ciaccio the opportunity to bet on the games using the line. Gaspar Ciaccio informed his friend Dr. Felix LoCicero of the opportunity and introduced him to Charbonier. In June, 1970, after Charbonier explained the scheme in detail to Ciaccio and LoCicero and enlisted them, they began betting. Charbonier guaranteed that the line was rigged so Ciaccio and Dr. LoCicero would win. The system allowed only bets on the team designated as the favorite in any particular game, at the odds specified. The gamblers could select any number of games on the list to bet on. Charbonier received the line by telephone from New York and phoned the daily lists to either Ciaccio or LoCicero.
The betting began with bush-league sums in early June, 1970. As promised, Ciaccio and LoCicero won consistently in the beginning, and they increased the amounts of their bets as the season progressed. By the All-Star game break in July, they had compiled $7,500-$8,000 in unpaid winnings. The wagers by that time had reached the major leagues — as much as $1,000 per game. The All-Star game marked the end of Ciaccio's and LoCicero's hitting streak. After winning the bet on that game, they began striking out consistently. By early August, both had not only lost their previously-compiled winnings but were deeply in the hole. Although they had paid over $7,800, Ciaccio and LoCicero still owed over $13,000 when they called the game. When a friend of Ciaccio's, Tony Marchese (who was a bit more knowledgeable about gambling and baseball) saw one of the odds sheets Charbonier supplied Ciaccio, he informed Ciaccio, that, contrary to Charbonier's promise of a line rigged to win, the odds were deceptively rigged to insure losing bets. Ciaccio and LoCicero informed Charbonier that they refused to play any longer.
LoCicero paid Charbonier another $1,000 on August 24 and had no further contact with him until October 8. The Charboniers did not forget Ciaccio. Raul Charbonier pressed Ciaccio to pay his remaining losses several times between August and October. Ciaccio refused to pay the amount because he believed he had been duped. Once Charbonier assured Ciaccio that, if he did not pay the debt, Charbonier's cousin would come down from New York and "he would bring some people down here and get the money one way or another." Raul added to his lineup about that time by substituting his brother Luis as a pinch-hitter. In later August, Luis demanded that Ciaccio pay up. Ciaccio again refused.
To complete the lineup, Cosmo Rosado, James Burke, Henry Hill and Louis Lopez flew from New York to Tampa the night of October 8 arriving about 9:45 p.m. Rosado rented a car and informed the rental agent that he would use the car for an indeterminate time up to five days without a local address.
Around 10:30 that night, Luis Charbonier and Rosado, accompanied by the others from New York, accosted Ciaccio in his own lounge. After some serious haggling about Ciaccio's debt, Luis Charbonier and Rosado told Ciaccio to accompany them to Charbonier's lounge. When Ciaccio refused, Burke nudged a gun against his ribs. Having thus received an offer he couldn't refuse, Ciaccio went along, surrounded by the five antagonists. Foregoing any further pleasantries, Hill and Lopez, sitting on either side of Ciaccio in the back seat of the car on the way to the other lounge, began beating him. Lopez split open Ciaccio's forehead with a pistol. Hill and Lopez stated that they would kill Ciaccio, but that it would not be worthwhile since they wanted their $8,000.
Raul Charbonier greeted Ciaccio, when they arrived at the Char-Pal, with, At the Char-Pal the collectors placed Ciaccio in the stockroom and beat on him some more. While Gaspar Ciaccio was enduring his status of punching bag, Raul Carbonier called Gaspar's brother, Fano Ciaccio, at the Temple Terrace Lounge. Raul explained to Fano that they had his brother and they were "working him over." Raul said, "These fellows are from up North and they want their $8,000." Fano went to the Char-Pal Lounge to negotiate with Charbonier. After Fano explained he did not have the $8,000, Rosado told him that he could have a week to produce it. Subsequently, Raul Charbonier brought Gaspar back to the Temple Terrace Lounge. Some friends helped Gaspar change his bloody clothes and took him to a nearby hospital, where he was treated and the wound in his forehead was stitched up. Gaspar Ciaccio, who was away from work for a week after the beating, borrowed $8,000 from relatives and paid it to Charbonier by the end of the week.
Raul Charbonier had not forgotten LoCicero either. About midnight on the same night as Ciaccio's beating, Charbonier called LoCicero. Charbonier informed LoCicero that they had Gaspar, they had gasoline in the car, and they wanted to come over to see LoCicero. Charbonier agreed that, if LoCicero would promise to pay the balance in the morning, he would keep them away from him. LoCicero agreed. He offered a thumbnail sketch of his reaction: "I was scared as hell." At the earliest opportunity, he paid Raul Charbonier $4,000 to cancel the gambling debt.
Early on October 9, Rosado turned in the rental car at the airport. Rosado, Burke, Hill and Lopez returned to New York that same morning, flying through Miami.
On November 24, 1970, six days after the federal indictment was returned, state officials charged these defendants with kidnapping, extortion and assault with intent to murder Gaspar Ciaccio. The state case proceeded expeditiously and was tried in early March, 1971. All defendants were acquitted. The federal case was delayed by various legal maneuverings of the defendants until October, 1972. The trial court directed a verdict of not guilty on Count V as to Burke, Hill and Lopez, because no evidence of phone calls by them existed. The jury found the Charboniers guilty on all counts and Burke, Hill and Lopez guilty on Counts I through IV. The court sentenced each individual to ten years' imprisonment.
Burke, Hill and Lopez contend pro forma that the evidence was insufficient to sustain their convictions. The contention is frivolous in light of the overwhelming and detailed testimony by Ciaccio and others about these appellants' conduct. But Burke, Hill and Lopez seriously insist that massive infusions of inadmissible hearsay denied them a fair trial and their respective rights to confront the witnesses against them.5
First, they complain of Ciaccio's and LoCicero's testimony about the operation of the gambling scheme during the spring and summer. They assert as inadmissible hearsay virtually everything the witnesses said that Raul Charbonier said or did. These statements, rather than hearsay, as appellants assert, were "verbal acts," statements which were elements of the crimes charged. With the exceptions discussed below, none of the statements or acts attributed to Charbonier referred to Burke, Hill and Lopez.
The issue, then, is whether this non-hearsay evidence was admissible in the trial against Burke, Hill and Lopez. Doubtless it was relevant. It established and detailed the gambling scheme which was the context for the extortionate extensions of credit and the extortionate collection methods. Additionally, the gambling supplied the element which made the interstate travel and use of interstate telephone facilities illegal. No issue of prejudice or necessity for cautionary instructions arose because these defendants were not mentioned as involved in the original arrangements or operations of the gambling scheme. Whether these particular acts of Charbonier were attributable to Burke, Hill and Lopez was essentially irrelevant. As to them,...
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