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UNITED STATES v. LEVY

August 23, 1988

UNITED STATES OF AMERICA, Plaintiff,
v.
MORRIS LEVY, HOWARD FISHER, and DOMINICK CANTERINO, Defendants



The opinion of the court was delivered by: BROTMAN

 I. Introduction

 Defendants Levy, Fisher and Canterino have made various post-trial motions following their convictions on two counts of conspiracy to extort John LaMonte. The defendants contend the following relief is appropriate:

 (A) a judgment of acquittal, pursuant to Fed. R. Crim. P. 29, based on the insufficiency of the evidence, or a new trial, pursuant to Fed. R. Crim. P. 33, on the ground that the convictions are against the weight of the evidence;

 (B) a new trial, on the ground that the jury was "improperly influenced and inflamed by the prosecution's implicit and explicit references to organized crime";

 (C) dismissal of the indictment, based on Assistant United States Attorney Repetto's "promise" that he would terminate the prosecution if the defendants' allegations that the Federal Bureau of Investigation ("F.B.I.") assisted John LaMonte in illegal bootlegging activity and witness intimidation were proved;

 (D) a new trial because of the circumstances of the government's belated decision not to call LaMonte as a witness;

 (E) dismissal or a new trial based on the government's "concession" that LaMonte is an untruthful witness, since the surveillance evidence used at trial was obtained through the use of wiretap applications containing representations made by LaMonte, and since LaMonte may have testified before the grand jury; or

 (F) a hearing to determine whether surveillance evidence used at trial should have been suppressed based on an F.B.I. Agent's failure to disclose certain prior wiretap information in wiretap applications.

 II. FACTUAL BACKGROUND

 The transaction which gave rise to the indictment underlying the prosecution of defendants Levy, Fisher and Canterino involved a sale of "cut-out" records *fn1" by Music Corporation of America ("MCA") to Consultants for World Records ("World"). World, in turn, sold the majority of these records to Out of the Past, a record wholesale company owned by John LaMonte. As part of this deal, Roulette Records ("Roulette") agreed to act as guarantor for payment to MCA. Morris Levy is, and was at the time of this transaction, the President of Roulette, and Howard Fisher is and was the comptroller. The arrangement was such that whatever portion of the sales price that was not paid to MCA by LaMonte or World would have to be paid by Roulette.

 The government alleged at trial that defendants Levy, Fisher and Canterino conspired together with several other unindicted co-conspirators, including Gaetano Vastola and Elias Saka, to use extortionate means against John LaMonte to force him to satisfy the MCA debt by either making cash payments or by returning merchandise. In support of this charge, the government introduced numerous surreptitiously recorded conversations among the alleged co-conspirators, during which the topic of discussion was how and when LaMonte was going to make payment. Defendants do not dispute that such conversations took place, but do argue that at no time during these talks was an agreement reached to use force or threats of force against LaMonte to make him pay the MCA debt.

 Accordingly, defendants moved for judgments of acquittal, pursuant to Rule 29, at the close of the Government's case. These motions were denied. Defendants then reviewed their motions after the close of the defendants' case. The court reserved on these motions, which were subsequently incorporated into defendants' present applications for post-conviction relief.

 III. DISCUSSION

 (A) Rule 29 motion

 Rule 29 of the Federal Rules of Criminal Procedure provides in pertinent part:

 
(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It should not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

 Fed.R. Crim P. 29(c).

 
On a motion for judgment of acquittal the court must view the evidence in the light most favorable to the Government. United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). If there is sufficient evidence in the record upon which a rational jury could find beyond a reasonable doubt that the Government has proved all the elements of the offenses charged, a motion for judgment of acquittal may not be granted. Id.; United States v. Doan, 710 F.2d 124, 126-27 (3d Cir. 1983).

 Defendants were charged with and convicted of engaging in a conspiracy to use extortionate means to collect an extension of credit, in violation of 18 U.S.C. ยงยง 894 and 1951. Under both of these sections, the term "extortionate means" encompasses the use of express or implicit threat of use of physical force.

 In order to prove a conspiracy, the government has to establish "an agreement, either explicit or implicit, to commit an unlawful act, combined with intent to commit the underlying offense. " United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.), cert. denied, 475 U.S. 1024, 89 L. Ed. 2d 330, 106 S. Ct. 1220 (1986). Moreover, "one of the requisite elements the government must show in a conspiracy case is that the alleged conspirators shared a 'unity of purpose', the intent to achieve a common goal, and an agreement to work together toward the goal." United States v. Wexler, 838 F.2d 88, 91 (3d Cir. 1988), citing United States v. Kates, 508 F.2d 308, 310-11 (3d Cir. 1975).

 1. Levy and Canterino

 In denying the earlier Rule 29 motions of Levy and Canterino, this court noted that Government Exhibit 138 ("G-138"), a tape recording of a September 23, 1985 meeting in Morris Levy's office at Roulette, could, in the context of the other evidence presented, support judgments of conviction against Levy and Canterino. Participating in this meeting at various times and to varying degrees were Morris Levy, Gaetano Vastola, Howard Fisher, Elias Saka and Dominick Canterino. *fn2"

 There is no doubt that the topic of conversation during this meeting was collection of the debt owed by LaMonte, either in the form of money payment or return of merchandise. What was disputed at trial, however, is whether there was any agreement among defendants and the unindicted co-conspirators to use extortionate means to collect that debt.

 As the court stated in its prior opinion on the Rule 29 motions of Levy and Canterino, a reasonable jury could infer, based on the recorded evidence embodied in G-138, that during the September 23, 1985 meeting, an agreement was reached to use extortionate means to force LaMonte to either ship goods back to MCA or pay his debt. G-138A at 948. *fn3" At several points during the G-138 conversation, the suggestion was made that LaMonte was going to be made to "ship or pay."

 For example, at page 62 of G-138A, Levy says to Vastola:

 
What do you do, you're asking me the same question you asked me a year ago. You make him pay. You go take the goods, you go do what you gotta do and you make him pay. He's got to pay.

 Vastola replies:

 
Oh yeah, he's got to pay.

 Later in the conversation, after Canterino has arrived, Saka states:

 
You know something. I was sure until he told me that Charlie's in in trouble but ah, ah, but if, ah if Charlie's gonna get out of his trouble he needs goods like this. And if I don't sell them to Charlie I'll find, we'll find somebody but the thing is not to leave the stuff in his hands. Because with him it will disappear. See we're talking about going in and physically taking the goods out of his place.

 Id. at 122. Then, at page 134 Vastola states:

 
Alright, we're resolving it this way if it's alright with everybody. We're going over there Friday morning, we're gonna make him ship back all the stuff . . . .

 Finally, Vastola is heard to say:

 
Well, Mersh [referring to Levy], here's what I'm saying. I'm not responsible for John LaMonte or anything pertaining to this deal. So what I'm trying to bring out to you is I want this thing resolved more than you because I know what it means. I know what the problem you're having right now with MCA and I want it resolved and we're gonna resolve it. One way or the other John LaMonte will pay this money. I don't care how he's gonna pay it.

 Id. at 154. It is also worth noting that at no time during the meeting is there discussion of invoking any legal process or means to obtain repayment from LaMonte.

 Additionally, G-138 indicates that Levy, Canterino Vastola and Saka have reached an agreement as to how to resolve the LaMonte problem. See, e.g. id. at 152:

 
Canternio: Is this going to get resolved now?
 
Levy: If they shipped the goods back, the important part of it's resolved. You know I mean, the other part of it I don't know as far as you and me I am I'm gonna live the same, we're all gonna live the same, fuck it whether that happens or not. (UI) I ain't got nothing to (UI) You know what I'm saying then?
 
Vastola: Yeah
 
Levy: But if this gets resolved here, that's the most important ...

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