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April 5, 1972

Vincent CARVELLI et al., Defendants

Travia, District Judge.

The opinion of the court was delivered by: TRAVIA


TRAVIA, District Judge.

 The defendants, Vincent Carvelli, Jesse Smith, and Rocco Lauria, are charged in a nine count indictment with eight substantive counts *fn1" of violating Title II of the Consumer Credit Protection Act, 18 U.S.C. § 891 et seq., by using extortionate means in collecting an extension of credit as proscribed by 18 U.S.C. § 894, *fn2" and with one count of wilfully and knowingly conspiring to commit offenses against the United States in violation of 18 U.S.C. § 894 by the use of an extortionate means to collect an extension of credit, from on or about November 4, 1967, up to and including the date of the indictment. *fn3"

 Defendant Carvelli has pleaded guilty to Count Nine of the indictment in full satisfaction of all counts pending against him. He is awaiting sentence.

 All the remaining parties and their respective attorneys, by stipulation dated January 20, 1972, and marked Court Exhibit 1 in evidence, agreed that the case be tried by the Court without a jury. The defendants were advised of their right to a trial by jury, and, by the said stipulation and after interrogation in open court, they waived their right to a trial by jury in accordance with the provisions of Rule 23, Fed. R. Crim. P.

 It was further agreed by the parties in said stipulation that the Court, sitting without a jury, may consider the statements of certain Government witnesses and certain exhibits, marked Government Exhibits 1 through 12 in evidence, as all the evidence in the case, as if the same had been presented in open court at a trial of the case, and that judgment may be entered thereon. The defendants, pursuant to their pretrial stipulations, have withdrawn their motions to suppress Government Exhibits 1 through 12. The Government has stipulated that it would not make use of the evidentiary provisions of 18 U.S.C. § 894 (b) and (c). Defendant Smith has moved to strike Government Exhibit 10 on the basis of relevancy. This Court, after examining the exhibit in question, has determined that it is not relevant to the instant case, and it is therefore ordered stricken. *fn4" The defendants have moved for the entry of a judgment of acquittal.

 The following constitutes this Court's findings of fact.

 In commencing operations at an auto repair shop which he purchased in October 1967, Howard Clyde encountered serious financial difficulties. Unable to secure an extension of credit through legitimate channels, Clyde entered into a series of transactions with Vincent Carvelli wherein he borrowed a total of $1250. *fn5" Carvelli was repaid $2250 in a series of weekly payments; the loan was cancelled in February 1968. *fn6"

 In January 1968, his financial condition remaining desperate, Clyde discussed his plight with one, Joseph Lombardi. Lombardi indicated that a loan of $2000 might be possible but confirmation would be required from Jesse Smith. In February 1968, Smith was introduced to Clyde and he agreed to lend him $2000.

 Prior to Clyde's receipt of the money, Lombardi informed him of Carvelli's displeasure with his loss of business to Smith. It was thus agreed shortly thereafter that the $2000 loan would be made by Smith and Lauria, each of them furnishing $1000. On February 16, 1968, Carvelli delivered the first half of the $2000 to Clyde, advising him that he would be required to repay the sum of $3600 on the $2000 loan. Two days later, Carvelli delivered the remainder of the loan informing him that "the terms of this $2000 loan would have to be $50 principal and $100 'vig' a week until the loan was paid off." *fn7"

 During the ensuing several weeks, Lombardi *fn8" appeared at Clyde's shop on a weekly basis to pick up checks as payments came due. *fn9"

 In March 1968, Clyde was informed by Lombardi that all subsequent payments were to be made in cash; Clyde also received a telephone call from a party identifying himself as Jesse Smith insisting that future payments be made in cash. Thereafter, all payments were made in cash to the defendant Carvelli or to the conspirator Lombardi. Eventually, Carvelli took over all collections for the defendants Smith and Lauria.

 During the months of February and March 1968, Rocco Lauria accompanied Carvelli to Clyde's shop to receive a weekly payment; Jesse Smith also accompanied Carvelli on approximately three occasions.

 On April 10, 1968, Carvelli, Smith and Lauria visited Clyde's shop to clarify a misunderstanding as to whom outstanding payments should be made. At that time, Carvelli introduced Lauria to Clyde as "my boss." Lauria and Smith informed Clyde that all subsequent payments were to be made to Carvelli and that Lombardi had been withdrawn from the transaction. When Clyde interjected that he had paid Carvelli in full, Lauria stated: "Are you trying to call me a liar? I'll burn this station down and your house, too. You still owe me $150 and I want it." Smith also made a similar comment, and when Clyde argued back, Lauria again interjected, "Don't talk to me like a dog." Carvelli then interceded and said to Clyde, "I don't want to see you get hurt, these guys are mean." Mrs. Clyde arrived on the scene shortly thereafter, and Lauria made certain remarks that frightened her considerably.

 After the incident, Clyde expressed his fears as to what might happen to himself, his family, and his property to two of his employees and his wife. Clyde and his wife ...

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