Professional Documents
Culture Documents
No. 92-1708
UNITED STATES,
Appellee,
v.
SIDNEY WEINER,
Defendant, Appellant.
___________________
ERRATA SHEET
The opinion of
as follows:
On cover sheet
amen
to read "Mezer."
________
Dinisco should be corrected to read "DiNisco".
On page
_______
_________
paragraph 2, "Santiago" should be corrected to read "Santiano."
__________
___________
BOUDIN,
Circuit Judge.
______________
Sidney Weiner,
together with
other defendants,
revolving
In
was
charged in
around loansharking
a multi-count
and illegal
indictment
debt collection.
fraud,
18
U.S.C.
1341,
conspiracy
to
collect
conspiring to conduct
through
collection of
a pattern
of
unlawful debt,
894,
the affairs of
racketeering
in violation of
an
activity or
the Racketeer
U.S.C.
1962(c), (d).
Weiner's case
health,
and he
was severed
stood trial
government's case,
four counts
alone.1
the trial
extortion.
counts
extortion conspiracy
894.
on the
Weiner's motion
to collect an
The jury
to violate,
acquitted Weiner
of the
conspiring
of
the close
court granted
charging conspiracy
credit through
At
to his
and
extension of
convicted Weiner
violating, RICO,
under 18
and of
U.S.C.
of
three
894; it
18 U.S.C.
We affirm.
____________________
1Other
States
______
Cir.
defendants were
v. Oreto, appeals
_____
tried and
convicted in
United
______
et al., 1st
-2-2-
I.
The gist of
here, was
with a
that Weiner,
a bank official,
loanshark enterprise
that
new
enforcers using
position
sufficiency
debts were
properties
affairs.
of the
he
obtain
and
enterprise's
bank
encouraged debtors to
associated himself
that the
as pertinent
owned
Because
to
Weiner
by
loanshark
the
the
evidence, we summarize
the government's
Construed in a light
favorable to the
government's
evidence
the
permitted
jury
to
(1989), the
find
the
following.
In 1982, Weiner, a director, consultant and
of
Capitol Bank
and
Trust Company
of Boston
stockholder
("Capitol"),
hired Oreto to
made by
collect certain
Capitol.
loans in
Oreto headed a
default that
were
loanshark operation
that
as seven
fell
behind
in their
payments.
Through Weiner,
Capitol
-3-3-
convicted involved
Lambert,
debts
obtained a
Lambert
to
instantly
Browder,
in the
amount of
Fred
paying kickbacks
to
Capitol
Frank Falzone,
Capitol by
checks
owed by
loan
officer.
applications and
the loans.
Lambert
Browder
issued bank
borrowed the
money
on
his bookmaker's
instructions
to consolidate
his
bookmaking debts.
When
Falzone
and
Lambert defaulted
on
their
loans,
Dandrow
Weiner.
At
held
the meeting,
responsible
secured
by
borrowers.
for
any
At a
Dandrow would
outstanding debt
kickbacks, and
Dandrow
agreed
on
met
with
Weiner
Oreto's collectors.
loans
the
Weiner did
Santiago is
be
6'4" tall,
the
to contact
and Dennis
Weiner
Petrosino,
told Dandrow
to
Dandrow
another
work
of
with
-4-4-
Petrosino,
discuss repayment
and asked
of his
Falzone to
loan.
accompanied by Santiago
get
Inside the
inside a
car to
car, Petrosino
told Falzone that his loan "wasn't going to go away" and that
Falzone's parents would have
not come up
Falzone did
meeting
with Oreto,
payments at
Falzone
and Oreto
Falzone to
left the
meeting "scared"
payments at Gateway.
car."
a house
told Falzone to
was
On
for a
make weekly
owned by Weiner.
and made
two subsequent
contacted
first
came
into
to his home in
Winthrop to collect.
different
he
was visited
-5-5-
who
Lambert
late
stopped making
In a discussion
Oreto
to Winthrop,
the
with
There,
contact
by
two
held in the
meeting
with
Oreto
at the
business
owned by
Weiner.
payments
on a consistent basis.
Oreto's
intercepted
Fasad's
nightclub,
Lambert thereafter
another
made weekly
"collection
manager,"
telephone conversation.
John
When
Costa,
in
Costa said
an
that
back in
("Community"),
Community
was later
gambling debts
Oreto
Weiner
acquired by
which he
at weekly
repayments to
where
paid
interest
the Community
Capitol.
off by
rates of
was
also
Cooperative
a
director.
Wong had
borrowing money
five
percent.
at Gateway Rent-A-Car.
heavy
from
Wong's
Wong
to pay
put up
his
Oreto.
parents' names to
the loan
papers supplied by
Oreto.
The
of $500 on
Petrosino
worked.
and
another
man
to the
restaurant
where
Wong
-6-6-
to see him.
make
you up
further payments
on
the problem,
the loan.
Wong's parents
placed on their
Weiner agreed
to purchase the
loan
collection
addition
manager, for
to
hiring
Oreto
38
weeks
to collect
that "Sid,
of Costa, Oreto's
in 1984-85.
bank
loans,
In
Weiner
Rent-A-Car and
Weiner's
Fasad's
name.2
nightclub, both
Oreto
was Weiner's
properties held
silent partner
in
in the
evidence
just
recited
government's
effort to
show that
violation of
is
the
core
Weiner had
of
the
conspired, in
"extortionate means" in
____________________
2Wong testified that Oreto at one point told him, "We
are not working in Gateway anymore.
We have a new place
called Fernwood restaurant. Next time you come up to pay me,
you should go to Fernwood."
Fernwood was later renamed
"Fasad's".
-7-7-
debts owed
Weiner
focusing on
includes
use,"
respectively by Falzone,
argues
that the
evidence was
"the use,"
of "violence
person or property.
or "an
or
express or
other criminal
18 U.S.C.
891(7).
Lambert and
insufficient,
"Extortionate means"
implicit threat
means"
to harm
Weiner argues
of
any
that
the evidence
did
not permit
rational jury
to
conclude
We disagree.
with
statute.
The evidence
showed, among
other things,
late at night;
directed to get
and that
Falzone and
Lambert were
Falzone at one
point hiding
in his
house.
The jury
could rationally conclude that the two men had good reason to
be
afraid.
with a
As for
about a beating
-8-8-
Weiner knowingly
extortion.
conspired to collect
An agreement
but nevertheless
enterprise."
rely entirely
implicit in
the
amount
United States v.
_____________
may "be
the debts
to
Moran, 984
_____
joint
criminal
F.2d 1299,
1300
on circumstantial evidence.
United States v.
_____________
knew of the
Weiner's connections
with
means to be
Oreto were
open issue
employed.
Here
extensive, and
Oreto
of the
directly
with
Lambert
loan.
funds, and
loanshark
Costa,
the
Weiner paid
business,
and
collection
Weiner
manager,
Oreto with
consulted
about
the
off-the-record bank
to disclose the
conclude
beyond
reasonable
doubt
a rational jury
that
Weiner
was
-9-9-
said
that
bank president,
later learned
Oreto organization
Weiner
testified and
Oreto
defaulters, that
to be used by the
was
hired
merely
the payments to
and that he
to
locate
(Weiner) was
loan
by the
dismayed when
he
The jury
the testimony
of FBI
witness.
reviewed the
from
the
terminology,
specialist on loansharking,
accounting ledgers
Oreto
transactions
Stirling, a
organization.
reflected
in
His
the
testimony
documents,
seized
explained
loanshark
similar nature.
Expert
the
jury to
understand the
evidence
or to
decide a
an
expert
witness
loansharking.
to
explain
United States v.
______________
pertaining
Lamattina, 889
_________
to
F.2d 1191,
objects
particular.
on
to
one
aspect
Over objection,
documents
showing
the
of
the
testimony
in
number
next
to
-10-10-
Weiner argues
to
that
this opinion
its own.
We agree, but
together
with
person.
one and
reflected
no
as
identical
phone
numbers,
contends that
erred in
its
treatment
dismissed
prior
district court
fraud
of evidence
counts
to the
relating to
verdict.
As
directed judgments
and on
other
the counts
earlier noted,
of acquittal on
counts
that it
the
the mail
charging conspiracy
to
also incorporated in
the
RICO
counts as
predicate
acts of
alleging
The
racketeering.
prejudicial
Weiner
spillover
adequately
moved
of
for
the evidence
the motion
but agreed
evidence relevant
court ordered
to
the evidence
to instruct
the jury
this evidence.
the remaining
in the
Although finding
RICO charges,
the
indictment re-
-11-11-
written
to
exclude
reference
to
the
corresponding
RICO
counts remained
in the case.
In
the
failed to object
to this omission.
Weiner
denying his
judge
now
argues that
the
district
in
court erred
not entitled
jury's
to have
consideration.
perceived,
evidence of
organization
was
As
counts.
evidence excluded
the
other
relevant
this
district
loan
to the
court
correctly
collections by
remaining
RICO
in the racketeering
from the
acts underlying
Oreto's
charges
personally
the dismissed
context of severance:
"[T]he
government
must
prove
an
enterprise and a pattern of racketeering
activity as elements of a RICO violation.
Proof of these elements may well entail
evidence of numerous criminal acts by a
variety of persons, and each defendant in
a RICO case may reasonably claim no
direct participation in some of those
acts.
Nevertheless, evidence of those
acts is relevant to the RICO charges
against each defendant . . . because it
tend[s] to prove the existence and nature
of the RICO enterprise . . . ."
-12-12-
denied,
______
F.2d 248,
to consider this
Cir. 1985),
cert.
_____
F.2d 402, 412 (6th Cir.), cert. denied, 453 U.S. 912 (1981).
____________
Of course, the
cited
mentioning:
jury,
in
In an
See Fed.
___
Weiner's
brief,
The statement
one
says he should
is graphic, to
only
Of the few
is
debtor's eyes.
R. Evid. 403.
meant to be
F.2d
worth
for the
"cut out" a
be sure,
but
Rodriguez-Estrada, 877
_________________
have
153, 156
United States
_____________
(1st Cir.
1989).
of
no actual
instruction
it
offense.
One
actually gave
request
instruction based on
was
on
the
for
and to the
elements of
"good faith
RICO
reliance"
he hired Oreto
at
-13-13-
The
instructions on
court were
F.2d 152,
154-55 (1st
specific
sufficient;
no separate
"good
by the
faith"
Cir. 1991).
Two
sought, and
943
other instructions
comment
challenge to the
discussion.
a crime
foreign
activity
to conduct or
was
added).
RICO
participate in
the
pattern
The three
convicted each
of
racketeering
18 U.S.C. 1962(c)
predicate counts
charged
1962(c) of the
(emphasis
Weiner
commerce
Section
extortion,
See 18 U.S.C.
___
for which
which is
1961(1).
____________________
3The requested charge that "demands for money alone are
simply not threats" could easily be misunderstood to mean
that something more need be demanded; and the further request
that "any anxiety experienced by the four debtors . . . could
be ordinary anxiety [of a debtor called upon to pay]" is a
comment on the evidence. The fact that these statements were
made by appellate courts in commenting on evidence in
particular cases
does not convert
them into required
instructions.
-14-14-
liability
could
be
predicted
upon
pattern
of
by Wong."
Weiner
a "pattern"
precludes
instance of
think
that
showed
liability
collection of an
the
pattern
construction,
the
of unlawful
on the
basis
Although one
extortion
and
unlawful debt.
at trial.
three
debt
of collection
RICO
mooted
government
debts, and
of
a single
The objection
might at
first
convictions automatically
the
issue
(correctly)
of
makes
statutory
no
such
argument.4
We turn, then, to
If
might
well read
the
activity or collection of
phrase
"pattern of
racketeering
the
together
with the
of
lenity in
construing
____________________
4The
"pattern"
offense
involves requirements
of
connection between the offenses, which need not be described
here, but no such requirements exist if one unlawful debt
collection is enough.
Under the "single debt" instruction
given by the court, it is possible (at least in theory) that
the jury could have made no finding of "pattern" at all and
relied solely on the Wong debt.
-15-15-
favor the
interpretation urged
matter becomes
by
But the
opposite result is
1962(c),
of
RICO,
is
proscribed
conduct.
prohibits
the use or
derived "from
collection
(emphasis
although
only
an unlawful
__
one
Subsection
most
four
(a)
in
an
__
added).
unlawful
debt."
categories
pertinent
of
part
enterprise of income
a pattern of racketeering
of
commonly invoked
of
investment in an
18
activity or through
__________
U.S.C.
1962(a)
to acquire or maintain an
a pattern
the
Id.
__
It is
debt is
no
of collection suffice as
to gain an
interest in
but that
or
criminally
defined
requiring
in
at
section
least
occurring within a
1961's
two
definitional provisions
acts
of
specified period
racketeering
of time.
as
activity
18 U.S.C.
-16-16-
1961(5).
But
there
is
no counterpart
definition
of
such a
provisions.
debt" which
pattern were
an element
Instead, section
is defined
conditions, including
as "a
usury.
1961
of one
simply lists
debt" incurred
Id.
__
of RICO's
1961(6).
core
"unlawful
under certain
This further
The three
have
held
that
a single
satisfies section
requirement.
(2d Cir.
collection
1962(c)'s
an unlawful
debt
unlawful
debt"
"collection of
1991);
n. 21 (3d Cir.),
U.S. 1001
United States v.
_____________
statute as a
agree.
H.J. Inc. v.
_________
Co.,
___
(1990);
See also
________
492
prohibited
U.S.
229,
activity
232
is
whole, we
(1989)
defined
(stating
in
that
18 U.S.C.
"[e]ach
1962
to
activity' or
of `collection of
an unlawful
debt.'").
Lastly,
instruction
Weiner
on
the
section 1962(c) is
contends
that
type
participation
of
the
district
court's
required under
-17-17-
in Reves
_____
case
that
the phrase
"to conduct
conduct"
of the
affairs of
section
1962(c),
means
participated
enterprise.
In
in
or participate
a RICO
that
. in
enterprise, as
the
"operation
. .
or
defendant
used in
must
management"
the
have
of
the
`conduct' and
the
the
(1993), a recent
jury was
instructed that
"the terms
enterprise
include
the
intentional
and
deliberate
or management of
the enterprise."
Weiner's
the enterprise in
any form is
conduct fostering
enough to convict.
As
this
review for
in the
____________________
5Arguably, no
waiver should
be inferred, and
no plain
suggests
that
operation
test subsequently
"miscarriage of
We
less
or management of the
the extent
guidance
something
than
mirrored the
"operation
approved in Reves.
_____
justice."
involvement
the
And to
guidance, that
or management"
Plainly there
Georgacarakos, 988
_____________
in
was no
F.2d at 1297.
prescience.
III.
Because litigants stress only the material pertinent
their claims
to
normally receive a
also that
three debt
very
a low level
of threat
collections connected
nature criminal
threats
are
conspiracies
the hallmark
of
was employed
to Weiner.
are masked,
intelligent
-19-19-
in the
But by
their
and
veiled
extortion.
The