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UNITED STATES v. TORTORA
464 F.2d 1202 (1972)
UNITED STATES of America, Appellee,
v.
John TORTORA, Appellant.
UNITED STATES of America, Appellee,
v.
Samuel SANTORO, Appellant.
Nos. 496, 642, Dockets 71-2114, 72-1170.
United States Court of Appeals, Second Circuit.
Argued April 4, 1972.
Decided July 24, 1972.
Stephen J. Sundvold, Atty. (Henry E. Petersen, Asst. Atty. Gen. and Sidney M. Glazer, Atty., Dept. of Justice, Washington, D.C., on the brief), for appellee.
Irving Anolik, New York City, for appellant Tortora.
Irving Anolik, New York City, of counsel to Lanna, Coppola & Rosato, Yonkers, for appellant Santoro.
Before CLARK, Associate Justice,* LUMBARD and KAUFMAN, Circuit Judges.
LUMBARD, Circuit Judge: Samuel Santoro and John Tortora were found guilty after a jury trial in the Southern District on fifteen counts of engaging in loanshark operations in violation of the federal Extortionate Credit Statute, 18 U.S.C. §§ 892-94, and on one count of conspiring so to do.1 We affirm. Appellants seek reversal of their convictions on several grounds, principal among them being Santoro's claim that his trial could not proceed in his absence. The indictment charged that Santoro and Tortora, along with Joseph Chiaverini,
Gene Genaro and Nicholas Ratteni, lent money to Joseph Formiglia although they had reasonable grounds to believe that the money would be used by Formiglia to make extortionate loans. It further charged that they had used extortionate means to collect the money loaned to Formiglia. The scheme began in November 1969 when Formiglia, a jeweler, borrowed $400 from Santoro, promising to pay $40 a week interest until the $400 principal was repaid. Shortly after this first loan was made Formiglia wanted additional money, but did not want to borrow it under his own name. Thus he conceived the idea of borrowing from Santoro on the pretext that he himself was relending the money at usurious rates. Beginning in early December 1969, Santoro made additional loans to Formiglia, amounting to approximately $11,000 by the middle of February 1970. Tortora frequently was present when these loans were made. Ratteni was present at two of the transactions. By late February 1970, Santoro suspected that Formiglia was not actually relending the money. Chiaverini was delegated to go with Formiglia on his next collection date to visit his "customers." When Formiglia protested that his customers might not like this arrangement, Santoro said, "We'll go around and collect the f____' money or we'll break their heads if they don't pay us." Formiglia feigned sickness on the collection date, but this merely confirmed Santoro's suspicions that Formiglia's customers were nonexistent and that the "loans" were only a pretense to cover Formiglia's own borrowing. Santoro met with Formiglia and threatened to split Formiglia's tongue or put a "bullet through [his] head" unless the money was repaid.
* United States Supreme Court, retired, sitting by designation. 1. Tortora was sentenced to 10 years imprisonment on each of the substantive counts and five years on the conspiracy count, the sentences to run concurrently.
Santoro was sentenced to seven years on each of the substantive counts and five years on the conspiracy count, the sentences also concurrent. In addition, he received a five year sentence for jumping bail, to run concurrently with his other sentences. 2. On August 13, Chiaverini was produced in court. The court heard extensive medical testimony regarding his medical condition. After the hearing, the court ruled that Chiaverini was competent to stand trial. 3. Santoro was later apprehended and pled guilty, on January 25, 1972, to a charge of bail jumping. See note 1, supra. 4. We deal with Tortora's other contentions seriatim. The trial judge's determination that Tortora was competent to stand trial was arrived at only after hearing testimony and personally observing Tortora and was supported by substantial evidence. United States v. Bernstein, 417 F.2d 641, 643 (2d Cir. 1969). The tape recordings were admissible according to the trial judge's discretion and nothing indicates that he abused that discretion. United States v. Kaufer, 387 F.2d 17, 19 (2d Cir. 1967). The statutes are not bills of pains and penalties directed against a class and prescribing guilt without a trial, but define with particularity certain criminal acts whose commission by the defendants must be proved at trial. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1867). The trial judge was entitled to receive hearsay evidence in determining Tortora's sentence. United States v. Schipani, 435 F.2d 26, 27 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971). 5. As we think the controlling question is one of waiver, we find irrelevant those cases which deal with when jeopardy attaches. Thus Santoro's citation of the double jeopardy cases holding that no jeopardy attaches until the jury has been empaneled is of no moment. The rule that jeopardy attaches once the jury is empaneled represents an historical judgment that, after the jury's empaneling, the pressures inherent in a criminal proceeding reach such proportions that a defendant, absent exceptional circumstances, should not be made to run the gantlet more than once. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). But guaranteeing a defendant this right does not answer the very different question of whether and when he has waived his right that the trial take place in his presence. 6. Similarly, Santoro's conviction complies with the requisites of Rule 43 of the Federal Rules of Criminal Procedure. The rule is no more than a restatement of the defendant's constitutional rights, see Advisory Committee Note ("the rule is a restatement of existing laws"), and its protections can be waived by the defendant's conduct. 7. It is difficult for us to conceive of any case where the exercise of this discretion would be appropriate other than a multiple-defendant case.
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