United States v. DiPasquale

• Decision Date: 04 May 1983
• Docket Number: Crim. No. 81-00361-1-8.
• Citation: 561 F. Supp. 1338
• Parties: UNITED STATES of America v. Anthony DiPASQUALE, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

561 F. Supp. 1338

UNITED STATES of America v. Anthony DiPASQUALE, et al.

Crim. No. 81-00361-1-8.

United States District Court, E.D. Pennsylvania.

April 8, 1983.

As Amended May 4, 1983.

COPYRIGHT MATERIAL OMITTED

Ronald G. Cole, Molly H. Colburn, Asst. U.S. Attys., Dept. of Justice, Philadelphia Strike Force, Philadelphia, Pa., for plaintiff.

Robert Scandone, Philadelphia, Pa., for Anthony DiPasquale.

Edward Reif, Philadelphia, Pa., for James DiPasquale.

F. Emmet Fitzpatrick, Philadelphia, Pa., for Peter Serubo.

Ronald Ervais, Philadelphia, Pa., for Victor Szwanki.

Robert A. McAteer, Philadelphia, Pa., for Peter Serubo.

Joseph M. Miller, Federal Defender Ass'n, Philadelphia, Pa., for August Redding.

Timothy J. Savage, Philadelphia, Pa., for Joseph West.

Richard R. Galli, Philadelphia, Pa., for Nicholas Fidelibus.

Edward A. Rudley, Philadelphia, Pa., for Neil Ferber.

OPINION

DITTER, District Judge.

In this case, seven of nine defendants¹ were convicted of various counts of collecting claimed extensions of credit by extortionate means,² and six of those seven were convicted of conspiracy to do so.³ Defendants raise a myriad of post-trial issues ranging from legal and factual insufficiencies in the evidence to errors in pre-trial and trial rulings. For the reasons which follow, all motions must be denied.

Because the Government charged certain defendants with three substantive violations occurring on different dates, in addition to the conspiracy count in which all defendants were charged, I must specify which defendants were charged in each count of the indictment.⁴ Count I charged Anthony DiPasquale, August Redding, and Victor Szwanki with beating and threatening Michael Cosmo on December 13, 1979, to collect a claimed debt of $5000.00. Count II charged Anthony DiPasquale and Victor Szwanki with beating and threatening James Kolzer from March 25, 1981, to March 26, 1981, to collect a claimed debt of $16,000.00. Count III charged Anthony DiPasquale, Nicholas Fidelibus, John Serubo, and Peter Serubo with beating and threatening Swain Crawford on May 9, 1981, to collect a claimed debt of $1800.00. Count IV charged each of these defendants and James DiPasquale with having been members of a conspiracy to collect claimed debts by extortionate means. The conspiracy was alleged to have spanned approximately two years from September, 1979, to November, 1981. Additionally, each of the substantive violations, inter alia, were named as overt acts alleged to have been committed in furtherance of the conspiracy. In short, not all members of the conspiracy allegedly participated in each substantive violation, the time between the first and second substantive violations was approximately fifteen months, and some of the defendants charged in the substantive violation of May 9, 1981, (Count III) had no other apparent connection with the conspiracy.

In view of the fact that many of the defendants' assertions of error revolve around whether the Government proved multiple conspiracies rather than a single conspiracy as charged, I must discuss the facts in detail. Viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the evidence revealed that the defendants conspired to collect claimed debts by beating, threatening with violence, or both, at least five individuals who each had business relationships, whether legal or illegal, with some of the defendants. Each victim was lured to a convenient location for the beating or extortion by one or more of the defendants whom he knew, outnumbered by his assailants, and beaten or threatened with violence for nonpayment of a non-existent debt. Each victim was beaten or threatened with violence until he agreed to repay the "debt", and then directed to arrange by telephone or otherwise to obtain cash from friends, relatives, or other sources, in some instances, while still in the custody and control of the defendants. Additionally, each victim was threatened with more violence if he reported his ordeal to anyone, especially law enforcement authorities.

The first victim, Michael Cosmo, was involved in distributing methamphetamine with Anthony and James DiPasquale during 1978 and 1979. In addition to selling drugs, Cosmo was Anthony DiPasquale's "runner". Cosmo was beaten on three occasions and the victim of extortion on four. The first incident took place in September, 1979, when Anthony DiPasquale telephoned Cosmo and directed him to go to DiPasquale's farm in Cardiff, New Jersey, "Resorts Concrete," a place to which Cosmo had travelled on several occasions to deliver money, pick up drugs, and care for a horse he owned jointly with Anthony. Because upon his arrival at the farm only August Redding was present, Cosmo went to care for the horse and wait for Anthony. After approximately one to two hours, Redding appeared outside the house, pointed a shotgun at Cosmo, informed him that Anthony had telephoned, and ordered him into the house. Redding also asked Cosmo if he had the $5,000 he owed to Anthony. When Cosmo asked Redding what he was talking about, Redding warned Cosmo that "he better come up with the money or he knew what would happen". Redding then beat Cosmo with the rifle butt rendering him unconscious. Upon awakening the next day, Cosmo was taken by a partner of Anthony's, Alfredo, to a house located in Longport, New Jersey, owned by the parents of Anthony's girlfriend. As Cosmo entered the house, he heard Anthony DiPasquale from a floor above shouting that he was going to make an example of Cosmo, and that "he's Cosmo got to go". Anthony then cocked his gun and started down the steps to where Cosmo was being held. At this point, Cosmo thought that he was going to be killed. Holding the gun to Cosmo, Anthony demanded money, and Cosmo not denying the debt, said he would borrow it as soon as possible. When Anthony warned that Cosmo's family would be in danger if he did not pay Anthony $5,000, Cosmo telephoned several people attempting to raise money. Apparently satisfied with Cosmo's promise to pay, Anthony directed that Cosmo be taken back to the farm and released. Two days later, when Cosmo had collected the $5,000, Anthony was notified and within fifteen minutes, arrived at Cosmo's house to pick up the cash.

The second incident occurred in November, 1979, when Cosmo received a telephone call from Anthony inquiring whether Cosmo had the $2,500 he owed to Anthony. Consistent with the September extortion, Anthony warned Cosmo to "get the money or else". Despite the fact that he did not owe any money to Anthony, Cosmo told him he would get it in a few days. Again Cosmo borrowed the money, and upon notification by telephone of this fact, Anthony again came to Cosmo's house to pick it up.

The third incident, the one described in count I of the indictment, occurred a few weeks later, in mid-December, 1979. Cosmo received a telephone call from Anthony inquiring whether Jimmy Minnick still installed carpet for his livelihood and whether Cosmo still worked for him. When Cosmo responded in the affirmative, Anthony said he needed carpet for his basement and asked Cosmo to make the necessary arrangements for its installation. Cosmo said he and Minnick would stop by to measure the area, discuss the type of carpet to be installed, and quote a price for the job. This Cosmo did without incident. The next morning when Cosmo and his employer arrived at Anthony's house to install the carpet, a group of men including defendants Anthony DiPasquale and August Redding, were playing cards. Later in the morning when Cosmo went to leave to take his car to his wife, he was stopped at the door by Redding who hit him, knocking him to the floor. As Cosmo lay there, he was kicked and punched by Redding, and then hit by Anthony in the side of the head with a fireplace poker. Anthony continued to beat Cosmo with the poker finally rendering him unconscious. When Cosmo awoke in the basement of the house, he was handcuffed to a pinball machine. Anthony was at the top of the stairs shouting that if Cosmo did not have "the money" he would die. Cosmo then agreed to borrow money to pay Anthony. Beaten and bloodied, Cosmo went to leave the house only to be stopped by Victor Szwanki who beat him again.⁵ Soon thereafter, Cosmo was released eight blocks from his house with a towel over his head. As a result of this beating, Cosmo was hospitalized for three or four days. Upon his release from the hospital, however, Cosmo again borrowed the money from a family member and paid Anthony.

The final beating occurred in January, 1980, when Cosmo was installing a ceiling with relatives in his home. Visited there by James DiPasquale, Victor Szwanki, and two others, Cosmo was taken to a back room and blamed by James DiPasquale for causing his brother to "go away". James DiPasquale then demanded $25,000 from Cosmo saying he owed it to Anthony. When Cosmo told them he did not owe any money to Anthony, James DiPasquale and Victor Szwanki beat and choked him giving as an excuse that because of him Anthony was in jail.⁶ Despite warnings from his assailants not to go to law enforcement authorities, Cosmo reported the incident to police after being pressured to do so by his family. Shortly thereafter, Cosmo received a telephone call from James DiPasquale informing Cosmo that because he went to the police, he was going to be killed. Cosmo was beaten severely on three occasions, paid thousands of dollars to Anthony DiPasquale, and testified he still feared for his life.

The second victim, James Kolzer, also was involved in a drug selling relationship with Anthony DiPasquale. The relationship began when Kolzer loaned Anthony $10,000 in December, 1980, to enable him to purchase chemicals to manufacture methamphetamine. After a failed manufacturing attempt, Anthony finally was successful in producing a large quantity of the drug. Despite a split...