Unpublished Disposition, 867 F.2d 613 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 613 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.John Pasquale ANTONELLI, Ernest Anthony Davino, MichaelVincent Buono, Defendants-Appellants.

Nos. 85-1207, 85-1208 and 85-1230.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 1989.Decided Jan. 26, 1989.

Before JAMES R. BROWNING, BEEZER and KOZINSKI, Circuit Judges.


MEMORANDUM* 

Defendants Antonelli and Davino appeal their convictions for aiding and abetting the collection of extensions of credit by extortionate means. Defendant Buono appeals his convictions for two counts of extortionate extensions of credit and for conspiracy to violate RICO, 18 U.S.C. § 1962(c), and violating RICO, 18 U.S.C. § 1962(d). Each defendant makes several different challenges to the convictions. We affirm.

FACTS

The three appellants, and several other co-defendants not before us in this appeal, were involved in loansharking in Las Vegas. Buono was a loanshark. Davino and Antonelli were collectors of loans for loansharks. Buono was found guilty of making extortionate extensions of credit to Arthur Prosser (Count I) and to Gary Taub (Count II). 18 U.S.C. § 892. He was also convicted of a RICO conspiracy offense (Count XIX) as well as a substantive RICO offense (Count XX). 18 U.S.C. § 1962(c), (d). Antonelli and Davino were both convicted of aiding and abetting in collecting the extortionate extensions of credit (Count X). 18 U.S.C. §§ 2, 894. Each appellant has filed separate briefs and we address their challenges seriatim.

ANTONELLI, 85-1207

Antonelli first argues for reversal on the ground that he was unable to cross examine a government witness, Lila Beustad. This challenge is meritless as the testimony was stricken by the district court and the jury was instructed to disregard the testimony. Furthermore the challenged testimony was cumulative as other witnesses placed Antonelli at the scene of extortionate collections of credit. The Beustad testimony was not so prejudicial that the striking of the testimony and the curative instruction insufficiently ameliorated the denial of cross examination of Beustad. See United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980); Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir. 1977) (weighing prejudice against denial or limiting of cross examination).

Antonelli next argues that a mistrial should have been granted due to alleged prosecutorial misconduct. The district court's denial of a motion for a mistrial is reviewed for an abuse of discretion. United States v. Wauneka, 842 F.2d 1083, 1089 (9th Cir. 1988). The basis for the motion was that the prosecutor elicited testimony from witness Charles Disney that Disney first met Antonelli by selling him a controlled substance. Antonelli argues that the government knew that this response would be forthcoming and that the district court had prohibited such an inquiry. The government strongly denies that any improper answer was knowingly elicited. Antonelli's motion for a mistrial was denied and the court admonished the jury to disregard the challenged testimony.

Unless, viewed in the context of the whole trial, alleged prosecutorial misconduct more probably than not materially affected the verdict, a district court will not be reversed for refusing to grant a mistrial. United States v. Christophe, 833 F.2d 1296, 1300-01 (9th Cir. 1987). In this case the alleged misconduct was hotly contested by the government, a curative instruction was given, and the testimony was not again elicited from or addressed by the witness. It cannot be said that the one statement tying Antonelli to drugs, extrinsic to the element of guilt, more probably than not affected the verdict in light of the substantial evidence of guilt.1  Accordingly, we affirm the denial of the mistrial motion.

Antonelli lastly argues for reversal due to the prosecutor's reference during closing argument to Antonelli's laughter at counsel's table during a witness's testimony. The court, immediately after the laughter occurred, admonished the defendant to conduct himself in an appropriate manner. No objection to the prosecutor's closing remarks was made. Accordingly, this issue is reviewed for plain error. United States v. Hutson, 843 F.2d 1232, 1238 (9th Cir. 1988).

It is clear "that where a prosecutor comments on the conduct of a non-testifying defendant ... the defendant's character is improperly put at issue and his fifth amendment rights not to testify and not to be convicted except on the basis of the evidence admitted at trial are violated." United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987). In Schuler the court reversed because the district court overruled the defendant's contemporaneous objection to the prosecutor's remark on the subject of defendant's in court behavior and failed to give a curative instruction.

In order to conclude that an error is plain error it must be both highly prejudicial and affect substantial rights. United States v. Young, 470 U.S. 1, 16-17 n. 14 (1984); Hutson, 843 F.2d at 1238. "Reversal of a criminal conviction on the basis of plain error is an exceptional remedy which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

It is clear that the error has affected substantial rights. Schuler, 813 F.2d at 982. The error was not, however, highly prejudicial when viewed in light of the strong evidence of guilt. Hutson, 813 F.2d at 1238-39 (finding that strong evidence of guilt outweighed any prejudice). In this case the record is replete with testimony placing Antonelli as a collector of loans by the use or threat of violence. Given that the evidence weighs heavily against Antonelli and that the prosecutor's comments merely underscored the court's own irritation with the laughter, the prosecutor's misconduct does not rise to the level of plain error justifying reversal.

Accordingly, Antonelli's conviction is affirmed.

Davino, 85-1208

Davino first argues that the evidence was insufficient to support his conviction. A challenge to the sufficiency of the evidence is reviewed in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Tobias, No. 88-1096, slip op. at 15383 (9th Cir. December 21, 1988).

Davino contends that he was a mere bystander and that he never participated in the collection of extortionate loans. Davino places great reliance on the testimony of Disney that Davino looked "bashful" at the time that Antonelli and Davino were collecting from Disney. Davino contends that he just "stood around" and looked "bashful" and that he did not speak with Disney at the time. Our review of the trial transcript reveals that Disney testified that Davino did speak, albeit infrequently and bashfully, during the collection episode in question. This bashfulness is explained by Disney having called Davino and Antonelli "asses" for collecting loans for others at the same time that they owed money to Disney. The testimony of Disney and co-defendant Corsano, who testified that Davino was indeed a collector of extortionate loans, was more than sufficient to support the conviction under the above standards.

Davino next argues that the testimony elicited from Disney was so highly prejudicial as to require a mistrial. Davino argues that his conviction should be reversed because of error on the part of the district court in denying his motion for a mistrial. This argument is meritless. Davino relies upon five instances of allegedly prejudicial evidence. Four of the five concern Antonelli. Davino contends that because he was linked up to Antonelli that the prejudice spilled over to Davino. The fifth contested bit of evidence had Davino present at a meeting at which it could be inferred that Disney intended to pay his loans with drugs.

The same standards of review discussed in Antonelli's mistrial challenge apply and the result is the same. The district court carefully considered the drug related issues and admonished the prosecutor to step lightly as no drug related testimony would be permitted. The court accepted the prosecutor's representation that he was taken by surprise by the answers to the drug and bookmaking issues and concluded that no mistrial was warranted. There was simply no abuse of discretion in denying the mistrial as the comments only marginally, if at all, prejudiced Davino. The district court's denial of the motion for a mistrial is affirmed.

Davino lastly argues that a statement made by co-defendant Corsano which implicated Davino in the collection effort against Disney was inadmissible hearsay. The statement of Corsano was admissible under the co-conspirator exception to the hearsay rule. Fed.R.Evid. 801(d) (2) (E). Davino relies upon outdated law when he objects that he was unable to confront the hearsay declarant. Bourjaily v. United States, 107 S. Ct. 2775 (1987) clearly controls this case and there simply was no confrontation problem. The conspiracy, including Davino's participation therein was clearly proved up at trial by way of the statements themselves and by independent evidence of Davino's participation supplied by Disney. Davino's hearsay challenge accordingly fails. United States v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988) (stating that some independent evidence of participation in the conspiracy is still required).

Accordingly, Davino's conviction is affirmed.

Buono, 85-1230

Buono challenges the sufficiency of the evidence to support his convictions under Counts I and II. Under the very deferential standard for reviewing sufficiency challenges stated above, the evidence supports the convictions. Buono challenges only one element of the crime of extortion in the two counts: he contends that there was no proof of an extortionate understanding between the victims and Buono.

With regard to Count I, the victim, Arthur Prosser, testified that another loanshark's "people were in a different city than Mike's [Buono] were". Later, when asked if he was in fear of Buono, Prosser responded, "No sir; not personally." These statements when taken in conjunction support a reasonable inference that organized crime figures were somehow involved. This supports a finding of an extortionate understanding. See United States v. Nakaladski, 481 F.2d 289, 301 (5th Cir. 1973) (mention of "Mafia" highly probative of an extortionate understanding). Prosser also testified that he was aware of the violent tendencies of at least one of Buono's collector's (Butch).

With respect to Count II, the victim, Gary Taub, testified that he feared for his job if he did not repay Buono. There was also testimony by co-defendant Corsano that Buono would travel long distances with a muscleman in order to "visit" those who had skipped out of Las Vegas without paying Buono. Again, this is sufficient to infer an extortionate understanding.

Buono also challenges the convictions on Counts XIX and XX as based upon insufficient evidence.

First, with respect to the substantive RICO charge Buono contends that he was a mere affiliate of the loansharks who gathered and agreed jointly to renegotiate loans to common debtors. Buono solely challenges the sufficiency with respect to the requirement that he be an "associate" in the RICO enterprise. Buono's argument boils down to the bare conclusion that the ample evidence that he acted in concert with other loansharks does not support an inference that he was an associate of a criminal enterprise. We disagree. See United States v. Tille, 729 F.2d 615, 620 (9th Cir. 1984) ("Associated outsiders who participate in a racketeering enterprise's affairs fall within RICO's structures."). Under the same sufficiency standards discussed above a rational trier of fact could easily conclude beyond a reasonable doubt that Buono was an associate of the enterprise.

Buono's challenge to the evidence supporting the RICO conspiracy conviction similarly fails. He again argues that he was an independent loanshark who merely associated with other loansharks and that such conduct does not support a conspiracy conviction. The evidence of Buono meeting with the other loansharks and renegotiating loan amounts, standing alone, is sufficient to find that Buono was a co-conspirator. Viewed in the light most favorable to the government the convictions were supported by sufficient evidence.

Conclusion

For the foregoing reasons each of the defendant's convictions is affirmed.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Antonelli does not challenge the sufficiency of the evidence