United States v. ZemekUnited States v. Zemek
Kenneth E. Kanev, Seattle, Wash., for Caliguri.
Robert Bryan, Lanning & Bryan, Seattle, Wash., for Mazzuca.
Monte E. Hester, Tacoma, Wash., for Janovich.
Graham Hughes, Gerald L. Shargel, New York City, for Carbone.
James S. Kempton, Seattle, Wash., for Williams.
Gary G. Weber, Puyallup, Wash., for Zemek.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT and SNEED, Circuit Judges, and ENRIGHT, District Judge.*
EUGENE A. WRIGHT, Circuit Judge.
Appellants attack the sufficiency of the evidence to support their convictions for a racketeering conspiracy and numerous substantive offenses connected therewith. They also assign error to designated instructions and evidentiary rulings. We affirm.
Count 1 of the seventeen count indictment charged fifteen confederates with conspiring over a seven-year period (1971 to 1978) to conduct the affairs of an “enterprise“, the tavern business of Pierce County, Washington, through a pattern of racketeering.
The alleged racketeering activities included acts and threats of murder, arson and bribery (in violation of state law) and gambling, mail fraud, extortion and obstructing communication to criminal investigators (in violation of federal law). The remaining counts charged several defendants with these substantive federal crimes.
The seven appellants include the owners and operators of several taverns in Pierce County (John Carbone and his son, Joseph; Williams; and Mazzuca); and alleged “strong-arm” (Caliguri); a “middleman” (Zemek); and the “protector” (former Pierce County Sheriff Janovich). The indictment characterized John Carbone as the “leader” of the organization with Ron Williams as his “chief lieutenant.”
Because appellants challenge the sufficiency of the evidence as to several counts, the evidence adduced at trial as to each count will be discussed separately. We view the evidence, as we must, in the 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); United States v. Basey, 613 F.2d 198, 201 (9th Cir. 1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 274 (1980).
FACTS
The mass arrests of defendants in November 1978 marked the culmination of a federal undercover operation begun in the fall of 1977. The investigation was prompted by a rash of arsons at Pierce County taverns and topless dancing establishments. Between 1972 and 1977 three taverns in which Williams, Mazzuca, John Carbone, and Joe Carbone had ownership or management interests were destroyed by fire.1 All were insured. There was evidence that, prior to the fires, the establishments had been experiencing poor business. Thereafter, mortgages and debts were paid, the premises were remodeled or new establishments were opened nearby.
Between 1976 and 1978 seven suspected arsons also occurred at the establishments of competitors in the tavern, disco or topless dancing business.2 Because local law enforcement officers were unsuccessful in apprehending the perpetrators, the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) began a joint investigation of the tavern fires with the sheriff\‘s office in the fall of 1977.
By April 1978, evidence indicated Sheriff Janovich was providing information to a principal target (Williams). The ATF feigned abandonment of the investigation and dissolved the “partnership.” Thereafter, the FBI and ATF conducted an undercover operation.
After his arrest in April 1978, defendant Michael Valentine agreed to cooperate with the ATF. Thereafter, the government recorded conversations between Williams and Valentine in which Williams admitted responsibility for arranging the attempted assassination of a state liquor control board supervisor responsible for policing Pierce County taverns for alcohol and topless dancing violations. In November 1977, the supervisor had been shot four times and seriously wounded.
At trial Valentine testified that he hired defendants Bentley and Johnson to execute the murder contract solicited by Williams. The government introduced evidence of motive. Three taverns in which Williams and the Carbones had management or ownership interests received notices of topless dancing violations, entailing temporary closures in the months preceding the murder attempt. Williams, John Carbone, and Joe Carbone frequently expressed vitriolic dissatisfaction with the inspector\‘s stringent enforcement activities.
Valentine was also instrumental in introducing undercover agents as Chicago “mobsters” whereby they were able to penetrate gambling activities at Mr. Lucky\‘s and Stan & Ollies, taverns and cardrooms owned and managed by Williams and Mazzuca. Gambling included blackjack and pot limit poker games illegal under state law.3
Posing as a potential buyer of Mr. Lucky\‘s tavern and the related gambling activities, an agent was informed that a price could be negotiated to include the law enforcement protection arrangement with the sheriff\‘s office. Mazzuca and Williams participated actively in these negotiations. Williams arranged an initial meeting between the “buyer” and Sheriff Janovich.
In 1976 the Internal Revenue Service (IRS) had initiated a criminal investigation of John Carbone and his activities. Carbone accused Jerome Weinstein, a former business associate, of informing to the IRS. Shortly thereafter, Weinstein\‘s home suffered a series of firebombings and arsons. He was assaulted and seriously injured.
Concurrent with this undercover operation, agents consensually recorded conversations in an attempted extortion scheme involving John Carbone and Williams. John Carbone met with Weinstein soliciting $10,000 to be paid to Williams for protection against harassment. Weinstein agreed to cooperate with the FBI and record conversations with Carbone.
In the fall of 1978 the FBI was also able to infiltrate a nascent plot to bomb a competitor\‘s tavern. In the process of concluding the “sale” of Mr. Lucky\‘s tavern to an undercover agent, Williams sought the “buyer\‘s” help in locating a bomber to blow up the Night Moves tavern, a topless dancing establishment owned by Ron Chase.
The government introduced evidence that Night Moves provided the primary competition for Joseph Carbone\‘s Flitter In. Night Moves had previously been the object of two arsons. In addition, in August 1978 Chase\‘s home had been entered by an armed man subsequently identified as Caliguri who threatened the occupants with bodily injury unless Chase ceased operations.
The FBI arranged for an undercover agent to pose as the bomber. Williams set up the initial telephone contact, giving the number for Vista Auto Sales. John Carbone, Joe Carbone and Williams were observed listening for varying periods to this phone conversation. Caliguri met several times with the bomber to discuss details.
On November 28, 1978, at the time the final telephone contact was expected at Vista Autos, agents arrested John and Joe Carbone and Williams on the premises. The remaining defendants were apprehended the same day.
Six of the fifteen defendants pleaded guilty and testified at trial. Taped conversations between and among Valentine, Weinstein, and undercover agents, on the one hand, and John Carbone, Williams, Mazzuca, Zemek, Caliguri and Janovich, on the other, formed an important part of the government\‘s case.4
After a three month trial,5 the jury acquitted defendant Levage of all charges and returned guilty verdicts against the seven remaining defendants as to all counts in which they were named. The trial court imposed generally concurrent sentences and cumulative fines.6
RACKETEERING CONSPIRACY: COUNT I
Title IX of the Organized Crime Control Act of 1970 added Chapter 96 entitled, “Racketeer Influenced and Corrupt Organizations” (RICO) to Title 18 of the United States Code. RICO prohibits investment in, control, or operation of an “enterprise” through a pattern of racketeering activity. See
Finally, RICO requires a “pattern” of racketeering activity: at least two acts of racketeering committed within a period of ten years.
Section 1962, the substantive portion of RICO, employs the foregoing definitions to create three offenses. See
Appellants raise three objections related to count one: (1) permitting application of RICO to defendants\’ activities; (2) failing to charge multiple conspiracies; and (3) insufficiency of the evidence.
1. RICO Enterprise
Appellants assert that their activities did not fall within the scope of the term “enterprise,” a statutory element of the RICO offense. They argue that their alleged operations were wholly illegitimate, and therefore, outside the purview of RICO which evinces Congressional concern with criminal infiltration of legitimate businesses.
This argument is unavailing in light of Ninth Circuit precedent to the contrary. Furthermore, ample evidence exists to negate appellants\’ premise that the enterprise in question was wholly illegitimate.
This circuit has rejected the argument that wholly illegitimate enterprises are outside the scope of RICO and has held that an association formed for illicit purposes will satisfy the enterprise requirement. United States v. Rone, 598 F.2d 564, 568 (9th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). Although criticized,9 this is the prevailing statutory interpretation.10
A few courts, notably the Sixth and Eighth Circuits, have refused to adopt the expansive definition. United States v. Sutton, 605 F.2d 260 (6th Cir. 1979), submitted for rehearing en banc, April 2, 1980; United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980) (RICO requires discrete economic association separate from pattern of racketeering). Cf. United States v. Mandel, 415 F.Supp. 997, 1020 (D.Md.1976) (pretrial order, not alleged as error on appeal).
Although Rone was decided prior to Sutton, other circuit courts addressing the issue thereafter have not followed the Sixth Circuit. See, e. g., United States v. Aleman, 609 F.2d 298 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980). See also, United States v. Provenzano, 620 F.2d 985, 992-93 (3d Cir. 1980). But see, United States v. Anderson, supra.
Even if the broader definition of “enterprise” adopted in Rone did not bind this panel, the charged enterprise satisfies the narrower definition of a group “organized and acting for some ostensibly lawful purpose, either formally declared or informally recognized.” United States v. Sutton, 605 F.2d at 273. The concern of the Sutton majority and of commentators is that the enterprise concept not be extended to include a loosely confederated group of criminals who perform unrelated criminal acts. See Note, Elliott v. United States : Conspiracy Law and the Judicial Pursuit of Organized Crime Through RICO, 65 U.Va.L.Rev. 109, 119, n. 68 (1978). This is not such a case.
Certain appellants owned or operated more than six taverns in Pierce County during the relevant period. Organized and acting for ostensibly lawful purposes, they undertook to discourage competition and law enforcement investigation through arson, extortion, and physical violence. Further, they used a legitimate business as an alleged “front” for illegal gambling. This is precisely the type of operation Congress intended to encompass within the enterprise concept. See United States v. Swiderski, 593 F.2d 1246 (D.C.Cir.1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2055, 60 L.Ed.2d 662 (1979) (restaurant used as a front for narcotics operations).
2. Multiple Conspiracies
Appellants assert that while count 1 alleged but a single conspiracy, the evidence adduced at trial established two separate conspiracies resulting in a variance affecting their substantial rights. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935).
John Carbone contends: (1) the incidents involving Jerome Weinstein (overt acts 4-5, 10-11, 15, 28, 51-55, 59-61, 65-67, 75, 79, 82, 87-93, 99) constitute a conspiracy independent of the tavern-related crimes; (2) the evidence adduced at trial as to Carbone\‘s participation related only to the “Weinstein matter“; and (3) it was prejudicial error to try him for a single conspiracy.
The recurrent issue of multiple conspiracies involves questions of severance, variance, and misjoinder which restate the basic contention that the evidence proved several separate conspiracies. United States v. Jabara, 618 F.2d 1319, 1327 (9th Cir.), cert. denied, 446 U.S. 987, 100 S.Ct. 2973, 64 L.Ed.2d 845 (1980). The general test is whether there was “one overall agreement” to perform various functions to achieve the objectives of the conspiracy. See United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). Performance of separate crimes or separate acts in furtherance of a conspiracy is not inconsistent with a “single overall agreement.” United States v. Friedman, 593 F.2d 109 (9th Cir. 1979). The general test also comprehends the existence of subgroups or subagreements.
Appellants assert there was no connection between the harassment and extortion of Weinstein and the “larger” conspiracy to control the tavern business in Pierce County. It was the government\‘s theory that Weinstein was an enterprise target because he was believed to have been an IRS informant.
As Weinstein\‘s former business associate, John Carbone was in the best position to know what incriminating evidence Weinstein possessed as to Carbone operations. IRS scrutiny could expose the extent of Carbone\‘s financial interests in various enterprise operations and jeopardize enterprise profits. As the alleged “head” of the enterprise, John Carbone might indeed fear a federal tax investigation.
Several circuits have applied a “factors” analysis to distinguish single from multiple conspiracies. See, e. g., United States v. Cambindo-Valencia, 609 F.2d 603, 623-25 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980); United States v. Becker, 569 F.2d 951, 960 (5th Cir.), cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). Relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency and duration of each conspirator\‘s transactions; and the commonality of time and goals. A single conspiracy can be identified here either by isolating various elements under the “factors” analysis or by aggregating evidence under the “single agreement” test.
The nature of the instant scheme was to operate and control enterprise taverns and related activities with minimal interference from law enforcement agencies. This entailed numerous actions to protect illegal activities (e. g., unauthorized topless dancing and gambling) from law enforcement scrutiny. It engendered a pervasive concern regarding investigation by the state liquor board, the ATF, and the IRS.
The potential threat posed by local law enforcement officials was minimal because the sheriff had been successfully bribed. As Williams related to an undercover agent, the only investigators to fear were the IRS or the “feds.”
Throughout this period, John Carbone insisted that Weinstein had provided or would provide the IRS with information. He indicated to Weinstein his belief that law enforcement efforts could not succeed without a “stoolie.” The harassment activities against Weinstein confirm that he acted upon this belief.
Continuation of enterprise activities was dependent upon concealment. The operations were particularly vulnerable to federal investigation. The so-called “Weinstein matter” was not merely a separate, personal vendetta by John Carbone.
The use of violence to stifle law enforcement efforts was a common denominator. When the state liquor inspector became persistent, a murder attempt was orchestrated. Similarly, a brutal assault was arranged because Weinstein was a perceived threat.
Threats, arson, and extortion were employed against Weinstein, as well as enterprise competitor, Ron Chase. It is undeniable that the Weinstein matter and the tavern conspiracy had overlapping participants. Williams solicited Valentine\‘s services for arson and assault contract procurement in both. Zemek, Levage, and Wilcox were also common participants in arson activities. The evidence revealed a continuing relationship among participants organized in a hierarchical pattern.
The allegedly separate conspiracies were also united in time and place. Count 1 charged a conspiracy from 1971 to November 1978. The attacks upon Weinstein occurred from 1976 to November 1978, within the time span of the conspiracy and during the time when other crimes were occurring (for example, the plot to blow up the competing Night Moves tavern). The Weinstein harassment activities promoted the overall goal of the conspiracy by discouraging cooperation with law enforcement officials and providing an object lesson to minions within the enterprise.
The activities were consistent with one overall agreement to control and manipulate taverns and related illegal activities in Pierce County. The unity of time and place, the common identity of participants, the similarity of method and purpose combine to provide a rim sufficient to connect the various spokes of a single conspiratorial wheel.
Having reviewed the record with care, we conclude that there was no variance between the allegations of the indictment and the evidence presented. Thus, the refusal of the trial court to instruct on multiple conspiracies caused no prejudice and is not reversible error. United States v. Perry, 550 F.2d 524, 533 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 104, 54 L.Ed.2d 85 (1977). The court\‘s instructions were sufficient. See United States v. Kearney, 560 F.2d at 1363.11
As an alternative or supplemental argument in support of its single conspiracy theory, the government asserts that even if a single conspiracy cannot be identified under traditional analysis, the enterprise concept in RICO supplants conventional conspiracy doctrine and defeats appellants\’ multiple conspiracy objections. Because a single conspiracy can be identified using traditional conspiracy analysis, we need not determine if RICO permits a joint trial of otherwise non-joinable conspiracies.12
3. RICO Conspiracy
a. Admission of Co-Conspirators\’ Statements
Before examining the sufficiency of the evidence, we meet appellants\’ objections to the receipt in evidence of co-conspirators\’ statements. Statements by one co-conspirator during the course and in furtherance of a conspiracy are admissible as vicarious admissions against another co-conspirator. See United States v. Sandoval-Villalvazo, 620 F.2d 744 (9th Cir., 1980). Admission of a co-conspirator\‘s statement is predicated upon independent proof of defendant\‘s participation, however. See
Two objections are raised here. First, Janovich argues that a pretrial determination of admissibility is required. Second, John Carbone asserts there was insufficient prima facie proof of his involvement, independent of the co-conspirators\’ statements.
The district court provisionally admitted the co-conspirators\’ statements subject to establishing the requisite independent proof. Thereafter, it expressly found that a prima facie case of involvement had been established as to the appellants. Janovich argues that a pretrial determination of admissibility is required.
This court has held repeatedly that the order of proof is within the sound discretion of the trial court. United States v. Sandoval-Villalvazo, supra. The procedure of conditionally admitting co-conspirator\‘s statements subject to later motions to strike is well within the court\‘s discretion. United States v. Batimana, 623 F.2d 1366, 1369 (9th Cir. 1980). Finding no abuse of discretion, we uphold the court\‘s provisional admission of the statements.13
The test for admission of co-conspirators\’ statements is whether there is “sufficient, substantial evidence” apart from them to establish a prima facie case of conspiracy and defendant\‘s slight connection therewith. United States v. Weiner, 578 F.2d 757, 768-69 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). Although John Carbone does not challenge the existence of a conspiracy, he does assert there was insufficient independent evidence linking him to the conspiracy.
Carbone\‘s own taped conversations with Weinstein provide the primary evidence linking him to specific activities of the conspiracy. Therein, Carbone admitted his experience in providing “protection” and using muscle; his “control” of Williams; his familiarity with gambling operations; and his transactions with persons he described as “Mafia“. His recorded conversations indicated he had observed the assault upon Weinstein.14
He offered no explanation by evidence or argument for these admissions. Carbone\‘s reliance upon United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980) is misplaced. The Fifth Circuit found that absent the statements of co-conspirators, the case against Diecidue was “built of supposition on a foundation of inference.” Id. at 555. Carbone\‘s taped statements provide a direct link to his involvement in controlling taverns and his personal role in the related extortion of Weinstein. The government established the requisite connection to permit admission of co-conspirators\’ statements.
b. Sufficiency of Evidence
John Carbone, Joe Carbone, Zemek, Caliguri, and Janovich challenge directly the sufficiency of the evidence under Count 1.15 Once the facts are established, viewed in the light most favorable to the government, the test for sufficiency is whether jurors could reasonably decide to act in their own serious affairs on factual assumptions as probable as the conclusion the defendants were guilty beyond a reasonable doubt. United States v. Price, 623 F.2d 587, 591 (9th Cir. 1980).
In measuring a conspirator\‘s complicity, the court must decide if there was sufficient evidence to conclude: (1) the charged conspiracy existed; (2) defendant had at least a “slight” connection therewith; and (3) defendant knew he was connected with the charged conspiracy. United States v. Smith, 609 F.2d 1294, 1297 (9th Cir. 1979). Appellants focus upon the final element. The evidence against each will be reviewed individually.
John Carbone\‘s primary argument is that he had retired from the tavern and bail bonding businesses and his only business interest during the relevant period was Vista Auto Sales. There is a significant body of credible, circumstantial evidence that he retained both financial and personal control of several enterprise operations. As discussed above, the most damaging evidence against him was his own taped statements to Weinstein intimating his involvement in illegal activities. Carbone also told of “unloading” money on politicians with the tacit understanding that help would be forthcoming when needed.
Carbone claimed that Janovich would do anything he wished. He bragged that Williams “performed” for him and had made him a millionaire. In taped conversations, Zemek and Williams indicated they perceived Carbone as their superior. There was evidence Williams frequently visited Vista Autos, often prior to making business decisions. John Carbone met privately with Williams and Janovich several times at the office of his attorney.
In April 1977, a disco-restaurant in competition with an enterprise operation was destroyed by fire. Carbone\‘s attorney testified that when co-defendant Levage attempted to retain him to defend arson charges in state court, he was told that John Carbone and Williams would pay the fee.
Vista Autos, an acknowledged Carbone operation, served as the communication center for the planned bombing of Night Moves. John was observed listening to the crucial phone conversation with the bomber for a short time. A few hours later he was observed leaving Joe Carbone\‘s Flitter In accompanied by Williams who carried the identifying signal requested by the bomber.
Carbone does not challenge the evidence as to the Weinstein extortion, relying upon his multiple conspiracies argument rejected above. The record does not support his assertion that there was no evidence against him except as to the Weinstein counts. There was abundant evidence of his connection with the conspiracy revealing his role as a financier and overseer of the enterprise.
Joseph Carbone asserts that he and Williams were “mere associates” and he was not involved in the plots and schemes attributable to Williams. The relationship between Williams and Joe was more than a mere association. Both were insured together for two establishments, Flitter In and Back Door Disco. Williams referred to Joe as his “partner” in topless clubs.
Prior to taking retaliatory actions against a competitor, Williams stated he asked Joe to verify that the “target” did not operate under the protection of an alleged Mafia figure in an adjoining county. John Carbone frequently referred to “Joe and Ron (Williams)” when speaking to Weinstein about his business affairs. We reject Joe Carbone\‘s “mere association” argument.
The government produced evidence of Joe\‘s involvement in “torching” a tavern owned by his father which was experiencing bad business.16 His topless dancing operation, the Flitter In, was in direct competition with Night Moves. There was ample evidence of his involvement in the bomb plot against Night Moves. We find sufficient evidence from which the jury could conclude beyond a reasonable doubt that Joseph Carbone was a knowing member of the conspiracy.
Zemek characterizes the evidence against him as merely indicative of associational ties with the primary actors. He dismisses his taped admissions as “drunk talk” and false bravado. His intimate knowledge of many details belies this purported defense.
On tape Zemek admitted involvement in a firebombing of the Night Moves tavern and his responsibility for one fire at Weinstein\‘s residence. He told of taking money to co-defendant Levage, imprisoned on a state conviction for burning a competing disco.
Zemek solicited Valentine to set fire to a tavern which Williams and he had been unable to acquire. There was sufficient evidence to permit an inference that he was then working for the enterprise.
The Fourth Circuit has said that the “conduct or participate” language in
Caliguri asserts the evidence did not establish that he was a knowing member of the conspiracy. He was identified as the masked intruder who broke into the home of competitor Ron Chase and threatened the occupants if the Chases continued their topless dancing business. He was also identified as the person who tailed Chase.
There was evidence that Caliguri executed Joe Carbone\‘s order to “do something about” an enterprise tavern experiencing bad business. Shortly after that directive, the tavern was destroyed by fire. Caliguri was also active in the plot to blow up Night Moves. When he was arrested, agents found a shaving kit in Caliguri\‘s car containing his gun and the home phone numbers of John and Joe Carbone and Williams. The evidence established Caliguri was a knowing and willful conspirator.17
Sheriff Janovich strenuously asserts that he was but an acquaintance of the principals herein. The evidence showed a long-term relationship between John Carbone and Janovich. John Carbone\‘s attorney testified to several meetings between Janovich, Carbone and Williams at his office. Janovich arranged an introduction and meeting between John Carbone (ostensibly retired) and the jail superintendent of an adjoining county to discuss expanding the Carbone bail bond business. Carbone bragged of his control over Janovich.
In 1976 Janovich arranged a meeting between Williams and an assistant attorney general directing the state\‘s organized crime unit. On tape, Williams revealed that Janovich had warned him of federal “heat” in the spring of 1978.
The indictment assigned Janovich both protection and harassment roles. There was some evidence of his involvement in an “emphasis patrol” of an enterprise competitor, culminating in visits by fifteen law enforcement personnel within a thirty-minute period. The government presented circumstantial evidence of Janovich\‘s efforts to stifle arson investigations. On tape Williams suggested that if business were poor, a tavern could be “torched” and the sheriff would limit investigation.
The most damaging evidence against Janovich was taped conversations regarding the protection aspect of the conspiracy. Therein he acknowledged his awareness of a warning system and his intent not to interfere in illegal gambling operations. That a price was exacted for such cooperation is clear. One gambling operator at an enterprise tavern testified that Janovich pocketed a $100 payment which the “donor” intended for protection. Janovich also accepted $1,300 from the undercover agent posing as the buyer of Mr. Lucky\‘s.
Janovich testified that he accepted these payments as campaign contributions yet they were not reported on campaign disclosure forms. Indeed, no record was made of their receipt. The jury could reject his explanation as implausible. See United States v. Young, 573 F.2d 1137, 1139 (9th Cir. 1978) (it is the exclusive function of the jury to weigh the credibility of witnesses). Janovich\‘s actions were those of a “knowing participant.” See United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980) (county attorney agreed to give advance notice of raids to prostitution ring in return for cash payments and free services).
There was sufficient evidence to support the conviction of each appellant under count 1.18 We now examine the other challenged counts.19
HOBBS ACT
Count 6 charged Zemek, Caliguri, John and Joe Carbone and Williams with violating
Extortion is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
Zemek, Caliguri and Williams argue no violation was established because: (1) no “property” was obtained or sought; (2) no wrongful inducement was employed; and (3) the Chases did not consensually yield any property. All five appellants argue the evidence was insufficient.20
1. Intangible Property
The concept of property under the Hobbs Act has not been limited to physical or tangible “things.” The right to make business decisions and to solicit business free from wrongful coercion is a protected property right. See, e. g., United States v. Santoni, 585 F.2d 667 (4th Cir. 1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1221, 59 L.Ed.2d 459 (1979) (right to make business decisions free from outside pressure wrongfully imposed); United States v. Nadaline, 471 F.2d 340 (5th Cir.), cert. denied, 411 U.S. 951, 93 S.Ct. 1924, 36 L.Ed.2d 414 (1973) (right to business accounts and unrealized profits); United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (1970) (right to solicit business free from territorial restrictions wrongfully imposed by competitors). Cf. United States v. Hathaway, 534 F.2d 386, 395 (1st Cir.) cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976) (rejection of narrow perception of “property“); Battaglia v. United States, 383 F.2d 303 (9th Cir. 1967), cert. denied, 390 U.S. 907, 88 S.Ct. 817, 19 L.Ed.2d 874 (1968) (right to lease space in bowling alley free from threats).
The trial court instructed the jury using the following language from United States v. Tropiano, supra, 418 F.2d at 1075: property includes “any valuable right considered as a source or element of wealth“. No exception was noted. Chase\‘s right to solicit business free from threatened destruction and physical harm falls within the scope of protected property rights under the Hobbs Act.
2. Coercion
It is difficult to view the acts directed against the Night Moves and its proprietor as non-coercive. Threatened force may encompass fear of economic loss as well as physical violence. See Instruction No. 36. Cf. United States v. Gates, 616 F.2d 1103, 1106 (9th Cir. 1980) (inducing payments to avoid county business tax).
Appellants expressly communicated their purpose when a man, later identified as Caliguri, broke into the Chases\’ home, bound the occupants, and threatened to kill them if they did not give the Chases a message to “leave town.” He warned that it was futile to reopen Night Moves because it would “come down again“. The Chases had rebuilt the tavern after it was destroyed by a fire arranged by Williams in February 1978.
3. Consent
Appellants\’ argument that the convictions must be reversed because Chase was not induced to give up property “with his consent ” ignores the fact that count 6 charged attempted extortion. The jury was so instructed.
To prove the substantive act of attempted extortion there must be proof of an attempt to instill fear. Carbo v. United States, 314 F.2d 718, 741 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). Evidence of the previously described acts of intimidation and violence suffices. Appellants\’ objective was to induce Chase to give up a lucrative business. The fact that their threats were unsuccessful does not preclude conviction.
4. Criminal Liability
Notes
Mazzuca received a 15-year sentence for count 1. He was charged and convicted on three other counts for which he received three five-year sentences to be served concurrently with each other and count 1. The court imposed fines totalling $25,000.
Joseph Carbone was sentenced to 18 years on count 1. The sentences on the four remaining counts for which he was convicted are to be served concurrently with count 1. The aggregate fine for all counts was $38,000.
The court imposed no fines against Janovich, Caliguri or Zemek and ordered their sentences be served concurrently. Thus, Janovich and Zemek were sentenced to effective terms of 12 years; Caliguri received a maximum 18-year sentence for the five counts for which he was convicted.
A literal reading of the provision of the statute under consideration indicates that it is aimed at deterring interference with future communication of information. It does not prohibit the making of a threat, as opposed to the infliction of bodily injury, in retaliation for having communicated information to a criminal investigator, at least where such a threat cannot be interpreted as having been intended to interfere with future communication of additional information or with continued cooperation.
515 F.2d at 320 (emphasis added).
The Fifth Circuit‘s distinction between retaliation and deterrence is arguably limited to
(a) It shall be unlawful for two or more persons to conspire to obstruct the enforcement of the criminal laws of a State or political subdivision thereof, with the intent to facilitate an illegal gambling business if
(1) one or more of such persons does any act to effect the object of such a conspiracy;
(2) one or more of such persons is an official or employee, elected, appointed, or otherwise, of such State or political subdivision; and
(3) one or more of such persons conducts, finances, manages, supervises, directs or owns all or part of an illegal gambling business.
Williams was also charged under count 11 but does not challenge the sufficiency of the evidence.
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
Although the quantum of evidence as to certain defendants may have been greater than that as to others, such a disparity has been considered significant only when conspiracy charges were dismissed during trial. See United States v. Polizzi, 500 F.2d 856, 902, n. 11 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820