Unpublished Disposition, 911 F.2d 740 (9th Cir. 1985)

MEMORANDUM^* 

Frank Serrao appeals from his conviction for conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c), making extortionate extensions of credit, in violation of 18 U.S.C. §§ 2 and 892, and using extortionate means to collect extensions of credit, in violation of 18 U.S.C. §§ 2 and 894.

PERTINENT FACTS

The evidence at trial showed that Serrao, along with co-defendants Vito Spillone, Frank Citro, and John Clyde Abel, engaged in loansharking in the Los Angeles area between October 1980 and December 1981. The organization took over loansharking activity at the California Bell Club, a licensed poker club in Bell, California. Along with other participants in the scheme, Serrao made loans charging interest rates of five to ten percent per week. Serrao threatened physical reprisal to the borrowers to ensure that they repaid their loans. Serrao collected the loan payments and turned them over to Spillone, who acted as the head of the organization. Spillone gave Serrao a percentage of the money he collected.

Serrao was convicted after a jury trial on count 2, for conducting the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c), counts 7 and 17, for making extortionate extensions of credit in violation of 18 U.S.C. §§ 2 and 892, and counts 8, 11 and 19, for using extortionate means to collect extensions of credit in violation of 18 U.S.C. §§ 2 and 894. He was acquitted on count 1, for conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d), and count twelve, for use of extortionate means to collect an extension of credit in violation of 18 U.S.C. §§ 2 and 894. Serrao timely appealed.

The convictions of co-defendants Spillone, Citro, and Abel were upheld in a separate appeal in United States v. Spillone, 879 F.2d 514 (9th Cir. 1989).

DISCUSSION

Serrao raises seven arguments on appeal:

One. The district court improperly instructed the jury to continue deliberations after the jury had reached a partial verdict and reported that it was deadlocked on the remaining counts.

Two. The evidence was insufficient to convict him on count eleven, for using extortionate means to collect extensions of credit in violation of 18 U.S.C. §§ 2 and 894.

Three. The district court abused its discretion by admitting a recorded conversation into evidence and by failing to give a limiting instruction.

Four. The district court failed to comply with 18 U.S.C. § 2518(4) (c) in issuing orders permitting electronic surveillance.

five. The district court erred in failing to dismiss the indictment for prosecutorial misconduct.

Six. The district court improperly instructed the jury on the elements of a violation of 18 U.S.C. § 892.

Seven. The district court improperly instructed the jury on the elements of a violation of 18 U.S.C. § 894.

I. The Instruction to Continue Deliberations

Serrao challenges the district court's instruction to the jury to continue deliberating after the jury informed the trial judge that it had reached an impasse. We review a claim of error in the instructions given to a jury for abuse of discretion. United States v. Wauneka, 842 F.2d 1083, 1088 (9th Cir. 1988).

This matter was submitted to the jury on September 16, 1985. Three court days later, the jury informed the trial judge that it had reached a verdict on fifteen counts but was undecided on the remaining thirty-seven counts. The district court did not receive the verdicts that the jury had reached. The district court told counsel that it intended to instruct the jurors to continue their deliberations. When no party objected, the court told the jurors to "please continue your deliberations in this case, and keep in mind all the instructions that were given to you previously."

After deliberating two more days, the court received a note stating that the jury had reached verdicts on additional counts. With the agreement of counsel, the court sent the jury a note asking how many verdicts had been reached. The jury reported it had reached a unanimous verdict on thirty-two counts. The district court received and ordered that those verdicts be recorded. Of the eight counts with which Serrao was charged in the indictment, he was found guilty on counts seven, eight, eleven, seventeen, and nineteen, and acquitted on count twelve. The jury did not resolve the two remaining counts with which Serrao was charged.

The district court heard argument on whether to require the jury to continue its deliberations. Serrao objected to further deliberations. The district court overruled the objection and ordered the jurors to continue their deliberations, but refused to give an Allen charge requested by the government. Allen v. United States, 164 U.S. 492, 501 (1896).

Subsequently, the district court received a note from juror Mouton. The juror's note stated:

I believe it is necessary for you to further clarify the instructions regarding the rights of an individual juror to hold an opinion that is contrary to those of the others. This request is made because I feel that an inordinate degree of pressure is being put on me to change my mind. The jurors have questioned me intensively in a manner and tone as though I am personally on trial despite the fact that I have stated my decisions to be well thought out and final. Please clarify instruction on line 12 through 14 of page 33.

The instruction cited in the note provides, in pertinent part:

Now, the verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with the view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide this case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion, if convinced it is erroneous, but do not surrender your honest conviction as to the weight or the effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

The court informed counsel that it would read juror Mouton's note to the jury and instruct them to continue deliberating. Serrao's counsel did not object to this procedure.

The jurors returned to the courtroom. Juror Mouton's note was read to them. The court advised the jury that the instruction

is as clearly written as it can be, and that includes, hopefully, all of the instructions, but clearly the instruction that you are referring to and the paragraph in which that instruction is contained as to your duties as jurors in your deliberations, and in asking each of you to continue in your deliberations, I ask you to continue with that instruction and all other instructions in mind.

After two additional days of deliberation, the jury sent a note to the court advising that it was still deadlocked on the remaining counts. Over Serrao's objections, the court stated: "I am instructing the jury to continue their deliberations in this case." The court again refused the government's request that it give the jury an Allen instruction. Three days later, the jury returned a verdict on each of the remaining counts. Serrao was convicted on count two, but acquitted on count one.

Serrao contends that the district court's instructions to the jury amounted to an Allen charge. He also asserts that the court erred by failing to admonish the jury that the integrity of individual conscience in the jury deliberation process must not be compromised.

"The test for impropriety of an Allen charge is whether, in its context, the instruction had a coercive effect." United States v. Wauneka, 842 F.2d at 1088. " 'This circuit evaluates coerciveness on the basis of (1) the form of the instruction; (2) the period of deliberation following the Allen charge; (3) the total time of jury deliberations; and (4) the indicia of coerciveness or pressure upon the jury.' " Id. (quoting United States v. Foster, 711 F.2d 871, 884 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984)). Allen instructions "are potentially more coercive than are instructions merely to continue deliberating. A test for evaluating the coerciveness of an Allen instruction is therefore ordinarily more than adequate to evaluate the coerciveness" of an instruction to continue deliberating. United States v. Frazin, 780 F.2d 1461, 1471 n. 10 (9th Cir.), cert. denied, 479 U.S. 844 (1986).

In Frazin, we considered whether an ex parte instruction to a deadlocked jury to continue deliberating was coercive. Id. at 1470-71. The instruction, given in writing, stated: "Please continue your deliberations in the above entitled case." Id. at 1464. After noting that the jury deliberated for three and one-half hours, we concluded that the instruction was neither coercive on its face nor under the circumstances of the case. Id. at 1470. We concluded in Frazin that an admonishment to continue deliberating "meant just what it said--that the jury should continue deliberating, not, that it must reach a verdict." Id.

In United States v. Ramirez, 710 F.2d 535 (9th Cir. 1983), we were confronted with an instruction given to a jury after it had indicated on the verdict form that it could not reach a verdict as to one defendant. Id. at 544. The district court instructed the jury that the verdict form was "unacceptable" and that it should continue deliberating. Id. We found that the instruction was not coercive on its face, because the district court did not insist on a dispositive verdict. Furthermore, the jury in Ramirez deliberated for a full day after the instruction was given and ultimately reached a verdict on only two of the seven counts charged against the defendant. Id.

In this matter, the record does not demonstrate that the district court's instruction that the jury should continue deliberating was perceived by it as pressure to reach a verdict. The jury deliberated for two days after the district court's first instruction to continue deliberating, and an additional three days after the district court's second and final instruction. Cf. United States v. Frazin, 780 F.2d at 1470 n. 10 (" [D]eliberations of 3 1/2 hours are within the range of time that we have considered adequate in particular circumstances to rebut the charge that an Allen instruction coerced a verdict."). The jury also acquitted Serrao of one of the two counts upon which it was deliberating. See United States v. Ramirez, 710 F.2d at 544 (dispositive verdicts on only two of seven counts charged rebuts charge of coercion from instruction to continue deliberations). As a result, the district court's instructions to the jury to continue deliberating did not have a coercive effect under the circumstances of this case.

Serrao also argues that, by instructing the jury to continue deliberating after reading juror Mouton's note to them, the district court identified Mouton as a "possible sole dissenter" and improperly pressured him to change his mind. Serrao relies on United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984), for the proposition that identification of a possible sole dissenter in open court in the presence of the jury is unduly coercive. Id. at 531-32.

Sae-Chua involved a modified Allen charge. Id. at 531. In Sae-Chua, the district court received a note from the jury stating that, although the majority of the jury favored conviction, one juror persisted in voting not guilty despite his belief that the defendant was guilty. Id. The district court then brought the jury into the courtroom and polled the jurors as to whether they believed further deliberations could result in a verdict. Id. All but one of the jurors responded affirmatively. Id. The district court then gave a modified Allen charge. Id. The jury returned a verdict of guilty several hours later. Id. We noted in Sae-Chua that the procedure followed by the district court not only disclosed the numerical division of the jury, but also revealed the identity of the dissenting juror. Id. at 532. "The dissenting juror was aware of the fact that the judge possessed this knowledge. Under these circumstances the charge could only be read by the dissenting juror as being leveled at him." Id. We held that the giving of the modified Allen charge was unduly coercive under these circumstances. Id.

Sae-Chua is factually distinguishable from the instant matter. After reading juror Mouton's note, the district court admonished the jury to keep in mind its instruction that a juror should not surrender an honest conviction for the mere purpose of returning a verdict. The record does not show that the procedure followed by the court pressured juror Mouton to reach a verdict.

II. Sufficiency of the Evidence on Count Eleven

Serrao asserts that the evidence is insufficient to support his conviction on count eleven. "In determining the sufficiency of the evidence on appeal, the standard of review is whether, in viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Power, 881 F.2d 733, 736-37 (9th Cir. 1989).

Serrao, Citro, and Abel were charged, in count eleven of the indictment, with aiding and abetting the use of extortionate means to collect on an extension of credit to Richard Carey, a floorman at the California Bell Club, in violation of 18 U.S.C. §§ 2 and 894. The evidence introduced at trial showed that Carey borrowed $1,000 from Citro in March 1981. The terms of the loan were ten percent interest per week, with any additional payment applied to the principal. Carey obtained a second loan for $1,500, under the same terms, in late April or early May 1981. In June 1981, Abel began picking up the payments from Carey.

In the summer of 1981, Carey fell behind in his payments. In August 1981, two men approached Carey at the California Bell Club and told him that he must make a payment that night, or there would be trouble. Carey asked Abel about the conversation with the two men about 45 minutes later. Abel stated that if Carey made the payments, there would be no problem. Carey understood that statement to mean that he must make his payment or "there could be some repercussions possible." Carey made a payment that night to Abel.

In September 1981, Serrao began picking up the payments from Carey. At some point after Serrao began collecting from Carey, Carey fell behind on his payments. Serrao became upset, and he told James Costello, the California Bell Club manager, that he was going to "whack" Carey. Costello calmed Serrao down and arranged with Carey to pay his debt.

Serrao contends that, because he did not make the threat directly to Carey, the evidence was insufficient to convict him of using extortionate means to collect an extension of credit to Carey. 18 U.S.C. § 891 defines "an extortionate means" as "any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person." 18 U.S.C. § 891(7) (1988). 18 U.S.C. § 894 provides, in pertinent part:

(a) Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means

(1) to collect or attempt to collect any extension of credit, or

(2) to punish any person for the nonrepayment thereof, shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.

(b) In any prosecution under this section, for the purpose of showing an implicit threat as a means of collection, evidence may be introduced tending to show that one or more extensions of credit by the creditor were, to the knowledge of the person against whom the implicit threat was alleged to have been made, collected or attempted to be collected by extortionate means....

18 U.S.C. § 894 (1988).

Section 894 creates the substantive offense of aiding and abetting the use of extortionate means to collect an extension of credit. 18 U.S.C. §§ 2, 894 (1988); United States v. Quintana, 457 F.2d 874, 875 (10th Cir.), cert. denied, 409 U.S. 877 (1972). To convict a defendant of aiding and abetting a crime, "a jury must find beyond a reasonable doubt that the defendant 'willingly associated himself with a criminal venture and participated therein as something he wished to bring about.' " United States v. Castro, 887 F.2d 988, 995 (9th Cir. 1989) (quoting United States v. Cloud, 872 F.2d 846, 850 (9th Cir.), cert. denied, 110 S. Ct. 561 (1989)). "The abettor's criminal intent may be inferred from circumstantial evidence, and the government must prove only that the abettor intended to assist the perpetrator of the crime." Id. at 995-96.

In this case, the evidence showed that Carey had been previously threatened by Abel, and that Serrao told Carey that he was replacing Abel as the collection agent. Serrao does not dispute that the loansharking scheme existed, that he was part of the organization, that he made extensions of credit, or that he collected payments from Carey. The jury could have reasonable concluded that, by redirecting Carey's payments from Abel to himself, Serrao knowingly took advantage of Abel's prior threats to intimidate Carey into making payments. See United States v. Polizzi, 801 F.2d 1543, 1555 (9th Cir. 1986) (evidence was sufficient to sustain a conviction for using extortionate means to collect an extension of credit when prior collection agent used threats and subsequent collection agent redirected payments to himself). Thus, the evidence was sufficient to convict Serrao for aiding and abetting the use of extortionate means to collect an extension of credit.

Serrao contends that the district court erred in admitting Government's Exhibit 50 into evidence over his objection that the exhibit was more prejudicial than probative. We review "the district court's decisions balancing the probative value of evidence against its prejudicial effect for abuse of discretion." United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989).

Government's Exhibit 50 is a tape recording of a conversation between Spillone and Serrao. The transcript of the tape recording, as reproduced in the government's brief, is as follows:

SERRAO: * * * One thing. What do you want me to do with this Russell Brown.

SPILLONE: Oh yeah.

SERRAO: He quit his job. I went to Gardena and I seen him there. He been playin'.

SPILLONE: Oh yeah?

SERRAO: What are ya' gonna do? Last time ya' told me ya' gonna start working, back to work and ya ain't even gotta record here of bein' rehired.

SPILLONE: [Unintelligible]

SERRAO: Can't get blood out of a turnip. That was the attitude. Okay, this other guy, Joe Broom? He was there. He was playing the low hand. I said "What are you gonna do?" He said "Break my legs. Is that what you want to do?" I said, "If that's what you want done, that's what we do." I said, "this is the attitude you take after we give you the fuckin' money. This is the attitude you take now?" So what you want me to do?

SPILLONE: Motor 'em.

SERRAO: Kill Brown and Russell? Joe Broom and Russell? Russell is his amico.

UNIDENTIFIED THIRD MALE: That is bad to be too reckless.

SPILLONE: You can't get blood out of a turnip.

Appellee's Brief at 25-26 n. 37. Serrao argued before the district court that the tape recording should be excluded pursuant to Federal Rule of Evidence 403 because its prejudicial effect outweighed its probative value.

In United States v. Polizzi, 801 F.2d 1543 (9th Cir. 1986), we reviewed the correctness of a district court's decision to admit a tape recording into evidence in which a defendant talked about killing a loanshark victim for nonpayment. Id. at 1556. We noted that " [s]ection 894 prohibits the 'knowing' use of extortionate means; and, therefore, the defendant's state of mind is an element of the offense." Id. We concluded that the district court did not abuse its discretion in admitting the tape recording into evidence because it tended to prove the defendant's state of mind. Id.

Government's Exhibit 50 is similarly probative of Serrao's state of mind. The conversation shows Serrao's awareness of the operation of the scheme and his willingness to use extortionate means to collect payments. The district court did not abuse its discretion in admitting Government's Exhibit 50 into evidence over Serrao's Rule 403 objection.

Serrao also asserts that the district court should have given a cautionary instruction to the jury concerning Government's Exhibit 50. He relies upon United States v. Aims Back, 588 F.2d 1283 (9th Cir. 1979), in support of this contention. Aims Back is inapplicable under the circumstances of this case. In Aims Back the defendant requested a limiting instruction. Id. at 1285-86. Serrao failed to request a limiting instruction. See United States v. Jenkins, 785 F.2d 1387, 1396 (9th Cir. 1986) (party asserting error must request a curative instruction to preserve issue for appeal).

Absent a party's request, the failure to give a cautionary instruction must be reviewed for plain error. Fed.R.Evid. 103(d). " ' "A plain error is a highly prejudicial error affecting substantial rights." ' " United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.) (quoting United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986) (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979))), cert. denied, 110 S. Ct. 179 (1989). The jury instructions focused the jury's attention on its duty to consider only the crimes charged in the indictment in light of the evidence proving the necessary elements of those crimes. See United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (general charge to jury that defendant is not on trial for any act not alleged in indictment is sufficient); United States v. Walls, 577 F.2d 690, 697 (9th Cir.) (same), cert. denied, 439 U.S. 893 (1978). Government's Exhibit 50 was directly probative of Serrao's state of mind, an element of one of the crimes charged in the indictment. Thus, the admission of the tape recording was not plain error.

In his opening brief, Serrao states that the final four issues that he raised on appeal are "submitted on the basis of United States v. Spillone, (9th Cir. 1989) 879 F.2d 514." Appellant's Opening Brief at 16, 17, 18, 19. These issues were resolved against Serrao's co-defendants in Spillone. 879 F.2d at 517-18, 520-25, 525-27. Serrao does not challenge this court's disposition of those issues in Spillone nor present any argument in his brief concerning them. Pursuant to Federal Rule of Appellate Procedure 28, the appellant's brief "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on." Fed. R. App. P. 28(a) (4) (emphasis added). Serrao's failure to comply with Federal Rule of Appellate Procedure 28 waives these issues on appeal. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923 (9th Cir. 1988); see also Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1548 (9th Cir. 1988) (per curiam) ("If a brief fails to contain the contentions of the appellant with respect to the views presented, and fails to contain citations to authorities, statutes and the record, the issue is waived.").

CONCLUSION

The judgment of conviction is AFFIRMED.