UNITED STATES, Aрpellee, v. EDWARD T. PERROTTA, Defendant, Appellant.
No. 00-2427
United States Court of Appeals For the First Circuit
May 6, 2002
[Hon. Ernest C. Torres, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
David N. Cicilline for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and James H. Leavey, Assistant United States Attorney, were on brief for appellee.
May 6, 2002
* Of the District of New Hampshire, sitting by designation.
I. Background
In April оf 1995, Perrotta loaned $50,000 to Folco at an interest rate of one percent per week (52 percent per year). Folco, in turn, loaned the $50,000 to Anthony Regine at an interest rate of two percent per week (104 percent per year). Under Rhode Island law, annual interest rates in excess of 21 percent are not legally enforceable. Regine testified, however, that he believed “something would happen to me or to my family” if he failed to make timely payments to Folco.
In March of 1999 a grand jury indicted Perrotta, Folco, and several others on various racketeering-related charges. The indictment chаrged that Perrotta had financed extortionate extensions of credit from Folco to Regine, in violation of
Perrotta moved to dismiss the indictment on the ground that
On appeal, Perrotta argues that the evidence was insufficient to support his convictions, that the district court erred in admitting into evidence weapons seized during a search of his home and car, that the seizure of the weapons violated the Fourth Amendment, and that
A. The Charges
Under
[a]ny extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.
Count Three charged that Perrotta had aided and abetted Folco in making extortionate extensions of credit to Regine, in violation of
Count Two charged Perrotta with financing extortionate extensions of credit from Folco to Regine in violation of
Perrotta does not deny having loaned $50,000 to Folco, or that Folco then loaned the $50,000 to Regine. Nor does he dispute the government‘s claim that Folco‘s loan of $50,000 to Regine was extortionate. His sole contention is that the evidence was insufficient “to support a finding that Mr. Perrotta knew of the intention of Mr. Folco to employ violence in his collection efforts.”
B. Folco as Loan Shark
In weighing Perrotta‘s challenge to the sufficiency of the evidence against him, we view the evidence in the light most favorablе to the verdict, and draw all reasonable inferences in favor of the verdict. United States v. Benjamin, 252 F.3d 1, 5 (1st Cir. 2001). There was ample evidence at trial that Folco was a loan shark, including a notebook in which Folco had recorded the
On April 22, 1995, Folco agreed to loan Regine $25,000 at an interest rate of two percent per week. Regine needed this money to pay off other loan sharks who were charging him even higher rates of interest.2 Folco told Regine that he would get the money from a third party, who turned out to be Perrotta, and Regine expressed his understanding that Folco would “charge me a point,” that is, one percent per week, on top of the interest the third party (Perrоtta) would be charging Folco.
On April 24, Folco told Cedroni that he had said to “the old man” (Perrotta was 52 years old in 1995) that he “might need . . . 50,000 more.” Folco reported that he had asked Perrotta “who am I gonna go to if I need that kind of money?“, and “the old man” had responded: “Me! Come to me. . . . I‘ll give you anything you want.” That same day, Perrotta telephoned Folco, and the following conversation ensued:
Perrotta: Hey, I got you a putter for ya.
Folco: Yeah.
Perrotta: Do you want me to bring it over tomorrow?
Folco: Yeah.
They agreed that Perrotta would deliver the “putter” at 8:30 the next morning. Also on April 24, Folco told Regine “[o]ne guy is gonna give me 25 G‘s tomorrow morning.” Folco also indicated that he could get Regine an additional $25,000 in the near future.
Three minutes after Perrotta departed, Regine arrived at Folco‘s residence. He thanked Folco and explained that he would “take it [the $25,000] to . . . Joe,” another loan shark to whom Regine was indеbted at an even higher rate of interest. In an apparent reference to the second $25,000 loan which Folco and Regine had discussed, Folco said: “I talked to a guy, gonna get back to me. Gave me the bullshit, Jesus, ahh . . . I want a point and a half [one and a half percent], he give me that shit.” Folco told Regine that he had rejected this proposal, but that he expected to hear from the “guy” before the end of the week.
Indeed, Perrotta phoned Folco two days later about a second “putter“:
Perrotta: You didn‘t like that, you didn‘t like that ah that putter I got yah, I got you another one.
Folco: Alright.
Perrotta: You know and then you you whichevеr one you like ah you keep and ah the one you don‘t like you can give it to me back so I can give it to somebody else.
Folco: I‘ll be here.
Later that day, Perrotta showed up at Folco‘s residence, again without a golf putter. In what the jury could have found was a reference to the schedule for interest payments, Folco said to Perrotta “[e]very Wednesday,” and there was evidence that Folco and Perrotta in fact met on subsequent Wednesdays. Folco also said “I‘ll be like ten weeks, that‘s all,” which the jury could have found was a statement of the term of the loan.
The following day Regine came to Folco‘s home. Folco reported that “[t]he guy that brought me the money yesterday[]” had supplied “[a]ll twenties.” The two men counted the money and determined that it indeed amounted to “25 thousand.” Regine promised to pay Folco “the other five [hundred] [two percent of $25,000] Tuesdays” (earlier in the conversation he had reiterated his existing obligation to give Folco “five” on Tuesday for the original $25,000). In other words, Folco got his money on Tuesday and Perrotta got his on Wednesday.
Consistent with the evidence summarized above, a notebook found in Folco‘s residence contained entries that the jury could have found were a record of two loans of $25,000 each from Perrotta to Folco. FBI expert Jerome Simpson offered the opinion that these loans, at an interest rate of one percent per week -- “below the rate of all of the other loans in this [notebook], and . . . below
This was not the first time Perrotta had advanced money to Folco, as evidenced by the following conversation between Folсo and Eddie Lato, one of his “business” partners:
Lato: You know, what he [Perrotta] does sometimes . . . you ask him for two [thousand] he freezes. He‘s got something about . . . I don‘t know if he thinks you‘re gonna try and rob him. . . .
Folco: Today it wasn‘t that. Last time I asked him, “Ya, anything you want?” Took ten off him, remember.”4
In addition, Folco made reference in a recorded conversation to an earlier “deal” he had done (for “a point“) with the source of the $50,000 he was lending to Regine.
D. The Seizure of Perrotta‘s Cash and Weapons
A search conducted on June 23, 1995, turned up $4,703 in cash on Perrotta‘s person, $4,800 in cash around Perrotta‘s house, two handguns and ammunition in a nightstand in a first-floor bedroom, a third handgun, brass knuckles, a fake bomb in Perrotta‘s garage, and a billy club in his car. The next day, Folco had the following conversation with Lato:
Lato: Um. Perrotta, they got. I‘m afraid.
Folco: What they [unintelligible] on him?
Lato: Bombs, guns, everything.
Folco: He ain‘t worried about [unintelligible]. If he blows up. Hm. [Unintelligible] he‘s dead.5
Lato then informed Folco that (presumably the police) “[t]ook 10 off of Perrotta,” consistent with the seizure the day before of $9503 from Perrotta. Lato reported that he had spoken to Perrotta after the raid, and that either he or Perrotta had said to the other: “it‘s over for us.”6 Folco expressed concern that “[s]omebody will rat.” Lato agreed: “And they gonna say that we, we, we bankrolled the whole fucking thing.”
E. The Evidence of Perrotta‘s Knowledge of Folco‘s “Business”
First, there was evidence tending to show that Perrotta had repeated dealings with Folco in relation to Folco‘s money-lending operation. The jury could have inferred from Folco‘s report to Cedroni that he had told “the old man” that he “might need . . . 50,000 more” (emphasis added) that Perrotta was an ongoing participant in Folco‘s loan sharking business. The same inference is supported by Folco‘s reference to a previous “deal” he
Second, if the jury found that Perrotta knew that Folco was re-lending the $50,000 to a third person -- as Folco‘s statement to Perrotta, “I‘ll let him [presumably Regine] count it [the money Perrotta had just delivered],” suggests -- it could also have concluded that Perrotta must have realized that Folco and that person understood that violence or other criminal collection techniques might be used. This is because, for Folco to turn a profit, he would have had to charge interest in excess of the one percent per week he was paying Perrotta, which would make the obligation legally unenforceable in Rhode Island. See United States v. Oreto, 37 F.3d 739, 752-53 (1st Cir. 1994) (fact that loan was “grossly usurious” was a factor indicating violence might be used to collect). The jury could have credited Simpson‘s testimony that, in his opinion, the loan from Perrotta to Folco at the relatively low rate of one percent per week “was probably a loan from one loan shark to another,” and that Folco‘s role in the transactions was, as he explained to Regine, to “guarantee
In sum, while there was no direct evidence that Perrotta understood the extortionate nature of Folco‘s transactions with Regine, there is enough circumstantial evidence to support a jury finding that he must have realized how Folco would enforce, if necessary, Regine‘s repayment obligations.
III. Admission of the Weapons
Perrotta filed a pre-trial motion in limine “to exclude, as evidence against him, all tangible evidence seized from his residence as such evidence is inadmissible pursuant to Federal Rule of Evidence 404(b) and introduction of the same would deny the defendant the fair trial to which he is entitled.” At the motion hearing, Perrotta argued that introduction of the guns, brass knuckles, billy club, and fake bomb would be “highly prejudicial.” Those items, he contended, are “irrelevant to the crimes charged and will clearly result in the [j]ury being invited to convict Mr. Perrotta . . . because . . . of bad character or things that the [j]ury in this climate will not like -- possession of firearms and . . . other weapons.” The district court denied the motion.
At trial, police officers testified to the discovery of the guns, brass knuckles, and fake bomb in Perrotta‘s residence, and the billy club in Perrotta‘s car. Except with respect to the
On appeal, Perrotta argues that the district cоurt should have excluded the weapons under Fed. R. Evid. 404(b) as evidence of other crimes, wrongs, or acts, or because their probative value was substantially outweighed by the danger of unfair prejudice under Fed. R. Evid. 403.8
To admit evidence of [other] bad acts, a trial court must find that the evidence passes two tests. First, the evidence must have ‘special relevance’ to an issue in the case . . . and must not include “bad character or propensity as a necessary link in the inferential chain.” Second, under Rule 403, evidence that is specially relevant may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
United States v. Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000) (quoting United States v. Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996)). Wе review the district court‘s evidentiary rulings for abuse of discretion. United States v. Gilbert, 181 F.3d 152, 160 (1st Cir. 1999).
Although Perrotta argues that the weapons had none of the special relevance to the charges against him required by Rule 404(b), he did not challenge the police testimony that the weapons were found in his possession. Nor did he challenge Lato‘s “[b]ombs, guns, everything” remark on special relevance grounds. Thus, even if we were to conclude that the introduction of the actual weapons lacked the special relevance required by the rule and only served to create a negative inference about Perrotta‘s character, we would have to consider the important fact that evidence about Perrotta‘s possession of the weapons was already in the case because of the testimony to which Perrotta did not object on 404(b) grounds. “Under Fed. R. Evid. 103(a), this court must review a challenged evidentiary decision to determine whether ‘a substantial right of the party is affected.‘” Doty v. Sewall, 908 F.2d 1053, 1057 (1st Cir. 1990) (quoting Fed. R. Evid. 103(a)). We have held that “no substantial right of the party is affected where the evidence admitted was cumulative as to other admitted evidence.” Id. To the extent that Perrotta was concerned that the admission of the weapons into evidence wrongly alerted the jury to the fact that he had possеssed them, any such error would be harmless. The jury already knew that fact from the testimony of witnesses about the weapons.
For the sake of completeness, however, and to dispel any notion of unfairness surrounding the admission of the testimony about the weapons, we add that if Perrotta had objected to the
The government also argues that the seized weapons were relevant generally as “tools of the trade” of extortion because they are useful to protect the lender and intimidate borrowers, and thus they tend to show that Perrotta was a loan shark. We have said that “in drug trafficking firearms have become ‘tools of the trade’ and thus are probative of the existence of a drug conspiracy.” United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989). The government urges us to extend the “tools of the trade” rationale for the admission of weapons to the crime of extortion,
B. Rule 403
Perrotta also argues that the weapons should have been excluded under Rule 403, as their probative value was substantially outweighed by the danger of unfair prejudice. Since the jury was not being asked to make any specific determinations concerning the physical characteristics of the weapons, we discern no particular
“‘[O]nly rarely -- and in extraordinarily compelling circumstances -- will we, from the vista of a cold appellate record, reverse a district court‘s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.‘”
United States v. Pitrone, 115 F.3d 1, 8 (1st Cir. 1997) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). Here, the government has been unable to explain why the jury needed to see the actual weapons, beyond the usual corroborative purpose
Similarly, although the brass knuckles and billy club were surely unfamiliar items to the jurors,10 and were real rather than fake, we again see nothing in the record to suggest that the brass knuckles and billy club would have inflamed the jury to decide the case on an emotional basis. See id. We therefore conclude that the district court did not abuse its broad discretion in admitting the weapons seized from Perrotta into evidence.
IV. Suppression of the Weapons
Perrotta argues that the seizure of his weapons violated the Fourth Amendment because the weаpons were not described in the search warrant. His argument ignores the plain view doctrine, which permits the seizure of items located in plain view if “(1) the seizing officer has a prior justification for being in a
Perrotta fails to explain why the plain view exception is inapplicable to this case. The search was conducted рursuant to an investigation of a loansharking conspiracy that used violence to enforce repayment obligations. The officers had reason to believe that the weapons could have evidentiary value in connection with their investigation, as Perrotta could have used the weapons to collect debts or to protect his cash. It makes no difference that the weapons were not used to commit the crimes for which Perrotta was convicted; the Fourth Amendment requires simply that the investigators, at the time of the seizure, had reasonable grounds to believe that the items “may [have been] contraband or evidеnce of a crime.”11 Id.
V. Due Process
Perrotta argues that
Perrotta cites no precedent that supports his view of
Affirmed.