Appeal from a judgment of the United States District Court for the Eastern District of New York following trial before Weinstein, J., and sentencing before Platt, J. Defendant-appellant Persico was convicted of loansharking and conspiracy offenses, 18 U.S.C. §§ 892, 894. Because Persico became a fugitive after conviction and before sentencing, and remained at large for over seven years, the Court declines to reach the merits of his claim of trial error. His sentence was not constitutionally disproportionate. Affirmed.
Feinberg, Chief Judge, and Pierce, Circuit Judges.
In 1980, defendant-appellant Alphonse Persico and co-defendant Michael Bolino were tried before the United States District Court for the Eastern District of New York, Weinstein, J. The indictment against them charged that they conspired to make an extortionate extension of credit in violation of 18 U.S.C. § 892 (1982) (count one), conspired to collect an extension of credit by extortionate means in violation of 18 U.S.C. § 894 (1982) (count two), and collected an extension of credit by extortionate means in violation of 18 U.S.C. §§ 2, 894 (1982) (count three). Both defendants were convicted on all three counts.
In this appeal, Persico challenges a single evidentiary ruling and the proportionality of his sentence under the Eighth Amendment. For the reasons that follow, we affirm.
We summarize only the facts relevant to the issues raised on appeal. In March 1976 Persico and Bolino lent $10,000 to Joseph Cantalupo, an FBI undercover informant and small time career criminal. Cantalupo already had several outstanding debts to loansharks. It is unclear whether Persico and Bolino understood that the cash was for Cantalupo's own use, or whether Cantalupo obtained the loan by misrepresenting to Persico and Bolino that it was actually for a certain Edelman. Apparently it was also possible that Cantalupo initially obtained the money for Edelman but kept it for himself when Edelman decided that he did not need it after all. In any event, Persico and Bolino looked to Cantalupo for payments and he was often late.
The government's case rested on the defendants' efforts to collect the loan. Cantalupo wore a recording device to tape numerous conversations with Bolino about the loan. The tapes revealed that they often discussed Cantalupo's inability to make payments and the consequences of his failure to do so. Cantalupo also testified that he met Persico and Bolino on April 22, 1977, at the Diplomat Social Club in Brooklyn, where Persico beat him up for failing to make payments. No tape recording was made of this incident, however.
The principal issue at trial was the use of extortionate means to enforce Cantalupo's repayment schedule. Persico in effect conceded lending the money to him at usurious rates, but contended that the beating was administered in connection with another matter. According to Persico, he was angry with Cantalupo for using Persico's name in an unrelated scheme to extort money from one Wasserman (the Wasserman extortion).
To establish that his displeasure with Cantalupo was related to the Wasserman extortion rather than the loan, Persico offered the testimony of Cantalupo's father, Anthony. Anthony Cantalupo would have testified that he spoke to Persico some time after April 22, 1977, and that Persico said he had beaten Cantalupo for using Persico's name in connection with the Wasserman extortion. Judge Weinstein sustained the government's objection to this line of questioning, however, ruling that the conversation was inadmissible hearsay. Tr. 333. He rejected defense counsel's theory that the conversation was admissible under Fed. R. Evid. 803(3) to prove Persico's state of mind with respect to the beating. Id.
The jury convicted both defendants on all three counts. Bolino was sentenced in August 1980 to five years imprisonment. During the sentencing proceeding in June 1980, however, Persico jumped bail and remained a fugitive until he was recaptured in West Hartford, Connecticut, in November 1987. He was then returned to the Eastern District for sentencing, which was assigned to Judge Platt after Judge Weinstein recused himself. On December 18, 1987, Judge Platt sentenced Persico to prison terms of five years on count one and twenty years on count three. He also imposed a suspended twenty year term on count two, with a five year term of probation on count two to run consecutively with the prison term imposes on the other counts.