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United States v. Mase

decided: June 6, 1977.

UNITED STATES OF AMERICA, APPELLEE,
v.
EDWARD V. MASE, APPELLANT



Appeal from a judgment of conviction for using extortionate means to collect an extension of credit, in violation of 18 U.S.C. § 894, following a jury trial in the United States District Court for the District of Connecticut, Jon O. Newman, Judge. Appellant claims, inter alia, that the evidence was insufficient and that a trial in the Hartford jury division of the court after a mistrial in New Haven, due to pre-trial publicity, requires reversal. Affirmed.

Moore, Smith and Feinberg, Circuit Judges.

Author: Smith

SMITH, Circuit Judge:

Edward Mase appeals from a judgment of conviction by the United States District Court for the District of Connecticut, Jon O. Newman, Judge. Mase and Edward Gianotti were each indicted on one count of conspiracy and one count of using extortionate means to collect an extension of credit to Paul Dwyer, in violation of 18 U.S.C. § 894.*fn1 Following a three-day trial, the jury found Mase guilty on the substantive count and was unable to reach a verdict on the conspiracy count.

Extended discussion is warranted on only two of the many arguments Mase raises on appeal: that the evidence was insufficient to support the jury's verdict and that a trial in Hartford after a mistrial in New Haven, due to pre-trial publicity, requires reversal. We find no error and affirm the conviction.

I.

Dwyer testified that in 1972 he had placed bets with an Edward Papagoda and had lost about $1,250, of which he had repaid $285. In May, 1976 Dwyer began betting with Gianotti, and by June 5, 1976 Dwyer was ahead about $1,600 in his bets with Gianotti. On June 5 and June 6, Dwyer placed numerous bets on sporting events with Gianotti and lost about $5,600. On June 8 Dwyer told Gianotti that he needed time to pay his debt. On June 15 Dwyer got a message to call Mase, whom he had never met, and on June 17 Mase and Dwyer had the first of several meetings. According to Dwyer, during the next week Mase twice threatened to assault him if he did not pay at least $1,000 by June 22. On June 21 Dwyer went to the FBI, for whom he had previously been a paid informant. On June 22 Mase came to Dwyer's house and again threatened to assault him.

Unknown to Mase, Dwyer was wearing a body recorder, and two FBI agents were in the next room. When Mase unexpectedly opened the door to this room, he was placed under arrest. The recording of this June 22 conversation between Mase and Dwyer, along with the recordings of a previous telephone conversation on June 22 between Mase and Dwyer and a later telephone conversation on June 22 between Dwyer and Gianotti, tend to corroborate Dwyer's testimony. Mase offered no evidence.

Mase does not claim that the jury could not have believed Dwyer's testimony. Mase does claim that under these facts there was, as a matter of law, no extension of credit to Dwyer by Gianotti between June 4 and June 6, 1976, as alleged in the Bill of Particulars.

Section 891(5) of Title II of the Consumer Credit Protection Act, 18 U.S.C. § 891 et seq., says "to collect an extension of credit means to induce in any way any person to make repayment thereof," and § 891(1) says "to extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim . . . however arising, may or will be deferred." Mase argues that between June 4 and June 6 there was neither a loan nor an agreement to defer repayment of any debt or claim.

Title II contains no definition of a loan, a debt, or a claim. Mase relies on cases involving tax treatment of a transaction,*fn2 the application to an Illinois official of the Hatch Act, 5 U.S.C. § 1501 et seq.,*fn3 and the interpretation of a commercial contract*fn4 to support his argument that a loan always involves the "delivery of money or advance of funds . . . it cannot encompass the placing of a bet." (Appellant's Brief, at 30). These cases are not, however, determinative in construing a criminal statute. We think Congress intended a broad definition. The jury could decide under § 891(1) if there was a loan or an agreement to defer repayment of "any debt or claim . . . however arising. . . ." We think Judge Newman's supplemental jury charge on the essential point - whether there was an extension of credit - was adequate.*fn5 Mase's requested charge might well have confused the jury.

Mase concedes that "in this case, as the evidence developed, the essential element in issue was what, if anything, constituted an agreement to defer repayment." (Appellant's Reply Brief, at 10). While not every placing of a bet involves a simultaneous agreement to defer repayment,*fn6 the jury could find, based on the evidence concerning the past relationship of Gianotti and Dwyer, that when Dwyer placed the bets with Gianotti on June 5-6 there was at that time a tacit agreement between them that Dwyer was deferring repayment of Gianotti's debt if Dwyer won and that Gianotti was deferring repayment of Dwyer's debt if Dwyer lost. We think Congress intended to cover such activity even if the creation of the debt and the extortionate collection are not engaged in by members of organized crime or loan sharks. United States v. Schwartz, 548 F.2d 427, 428 (2d Cir. 1977); United States v. Sears, 544 F.2d 585, 586 (2d Cir. 1976). Cf. United States v. Briola, 465 F.2d 1018, 1021 (10th Cir. 1972).

Under the Commerce Clause, Congress has the power to regulate the extortionate credit transaction in which Mase was involved, "though purely intrastate." Perez v. United States, 402 U.S. 146, 154, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971); United States v. Keresty, 465 F.2d 36, 42-43 (3d ...


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