United States v. Vito Spillone, United States of America v. John Clyde Abel, United States of America v. Frank Citro

879 F.2d 514 28 Fed. R. Evid. Serv. 318 UNITED STATES of America, Plaintiff-Appellee, v. Vito SPILLONE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Clyde ABEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank CITRO, Defendant-Appellant. Nos. 86-5037, 86-5038 and 86-5043. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1989 (Nos. 86-5037 and 86-5038). Submitted March 7, 1989 * (No. 86-5043). Decided June 15, 1989. Richard G. Sherman, Santa Monica, Cal., Yolanda Barrera, Chief Federal Public Defender, Phillip A. Trevino, Deputy Federal Public Defender, and David R. Evans, Los Angeles, Cal., for defendants-appellants. Louis M. Fisher, Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee. Appeals from the United States District Court for the Central District of California. Before SNEED, FARRIS and PREGERSON, Circuit Judges. SNEED, Circuit Judge: 1 Spillone, Abel, and Citro appeal their convictions for racketeering, extortionate extension of credit, and using extortionate means to collect extensions of credit. We affirm. I. FACTS AND PROCEEDINGS BELOW 2 These…

Spillone, Abel, and Citro appeal their convictions for racketeering, extortionate extension of credit, and using extortionate means to collect extensions of credit. We affirm.

I.

FACTS AND PROCEEDINGS BELOW

These appeals arise from a twenty-two count indictment charging eight defendants with operating a loan sharking enterprise. *517 Because none of the defendants challenges the sufficiency of the evidence, the facts will be recounted only briefly.

Defendants conducted a loan sharking business out of a licensed poker club in Bell, California. Spillone was the alleged leader of the group, Citro made loans and also collected payments. Abel also collected loan payments. The proceeds were turned over to Spillone who returned a percentage of the amount collected to each man. The group charged rates of five or ten percent interest per week.

Appellants and four others were charged with conducting an enterprise through a pattern of racketeering activity and conspiracy to conduct such an enterprise. See 18 U.S.C. § 1962 (cHd) (1982). Spillone was also charged with two counts of making extortionate extensions of credit and one count of using extortionate means to collect extensions of…

concurring in part and dissenting in part.

While I concur in part in the majority opinion, I dissent from Part III.D.5 because I believe that Johnny Angelo’s perjury— which was compounded by FBI Agent Wiechert’s corroborating testimony and the prosecutor’s misleading statements to the grand jury—coupled with the government’s knowing presentation of an untrustworthy and unreliable witness to the grand jury require dismissal of the indictment against Spillone. I also dissent from Part III.D.7 of the majority opinion because I believe that the cumulative effect of the government’s misconduct requires dismissal of Spillone’s indictment.

I. ANGELO’S TESTIMONY

The majority concludes that the prosecu-torial misconduct concerning Angelo’s testimony before the grand jury was, at best, harmless error which did not warrant dismissal of the indictment against Spillone. I strongly disagree. The government used Angelo as a. grand jury witness even though it knew that he was so untrustworthy and unreliable that the DEA and the FBI,had terminated him as an informant. The majority states that the government has no duty to disclose information to the grand jury regarding the credibility of…