                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2005

USA v. Mussare
Precedential or Non-Precedential: Precedential

Docket No. 02-3301




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEAL
              FOR THE THIRD CIRCUIT


                         No. 02-3301


             UNITED STATES OF AMERICA,

                              v.

               JOHN CIOFFI MUSSARE, III,
                       a/k/a J.J.

                   John Cioffi Mussare, III,

                                               Appellant


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
             (D.C. Criminal No. 00-cr-00281-2)
             District Judge: Hon. Malcolm Muir


                    Argued May 27, 2004

BEFORE: RENDELL and COWEN, Circuit Judges and
     SCHWARZER*, District Judge

                    (Filed April 28, 2005)




*Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by
designation.
Peter Goldberger, Esq. (Argued)
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276

Counsel for Appellant

Theodore B. Smith, III (Argued)
Office of the United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108

John J. McCann, Esq.
Office of the United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701

Counsel for Appellee


                           OPINION




COWEN, Circuit Judge

       John Cioffi Mussare, and a co-defendant, William R.
Bruce, III, were charged in an indictment with various drug and
extortion crimes. They were convicted of one count of
conspiring to distribute marijuana, as well as two counts of using
extortionate means to collect an extension of credit in violation
of 18 U.S.C. § 894. Mussare appeals, raising various
constitutional and evidentiary challenges to the extortion
convictions.1 He also appeals his sentence. We will affirm.



       1
       This appeal arose out of the same incident underlying
United States v. Bruce, 02-3316. The cases were consolidated for

                                2
                                I.

       On January 21, 2000, Clinton James Taylor, Bruce, and
Mussare met at an all-night party in Williamsport, Pennsylvania.
At some point during the evening, Bruce and Mussare expressed
an interest in obtaining marijuana, and Taylor indicated that his
roommate, Jim Kane, might have some. On Saturday, January
22, Bruce and Mussare accompanied Taylor to his apartment.
Kane did not have any marijuana, but either Taylor or Kane
suggested that they could get some if Bruce and Mussare
provided the money. Bruce then gave Kane $115 for the
purpose of buying drugs.

        Kane gave the money to Taylor, who used it to buy seven
bags of heroin. Kane and Taylor intended to resell the heroin,
make a profit, and use the proceeds to buy marijuana for Bruce
and Mussare. It is unclear whether Mussare and Bruce knew of
the heroin buying scheme, but they were present at the apartment
when Taylor left with the money and when he returned with the
heroin. Kane and Taylor then consumed some of the heroin
themselves, after which Kane left to sell the remaining bags.
Mussare and Bruce remained at the apartment, waiting for Kane
to return. Kane was unable to sell the remaining bags of heroin,
and did not return that night. Mussare and Bruce left Sunday
morning.

      On Sunday evening, Mussare and Bruce returned to the
apartment for the marijuana. Kane explained that he had been



the purposes of argument only. In his briefs, Bruce raised several
additional constitutional challenges to the conviction. Mussare has
indicated that he wishes to adopt Bruce’s arguments for the
purposes of his own appeal, as permitted by Rule 28(i) of the
Federal Rules of Appellate Procedure. Because these cases were
not consolidated for the purposes of decision, we will not discuss
the substance of those arguments here. Those arguments are
unpersuasive, however, and for the reasons stated in United States
v. Bruce, 02-3316, we will affirm Mussare’s conviction even in the
face of the additional challenges.

                                3
unable to sell the heroin, and informed Mussare and Bruce that
he did not have the marijuana he owed them or the money they
had given him.

        On Monday, January 24, 2000, Mussare, Bruce, and
Taylor were together at Jason Tortelli’s apartment. Several other
people were also there, including David Shay. The group was
drinking and smoking marijuana. At some point during the
evening, Shay and Taylor were talking on the phone to Shay’s
girlfriend, Stacy Bardo. During that conversation, Shay punched
Taylor and told Bardo that he, Bruce, and Mussare had Taylor
and were looking for Kane, because he owed them money. Later
in the evening, Taylor was assaulted again, this time by Bruce,
who punched him in the face and kicked him repeatedly.

        Around 11:00 p.m. on January 24, Tortelli told his guests
to leave. Taylor, Mussare, Bruce, Shay, and Robert Confer then
went to Taylor’s apartment to find Kane. Kane was not there.
During the course of the night, Taylor was tied up, kicked,
burned with cigarettes, pistol-whipped with a paintball gun, and
beaten with various objects. The letters “I M Thief” were
burned onto his torso with a heated coat hanger. Shay, Mussare,
and Bruce all took part in the assault. Taylor eventually offered
to call his mother to obtain the money.

       The next morning, Mussare and Bruce took Taylor back
to Tortelli’s apartment2 , where Taylor called his mother, told her
that he had been beaten, and asked her for $500 so that he could
pay the people who had beaten him.3 Mussare accompanied
Taylor to his mother’s house, where Taylor told his mother that
Mussare had nothing to do with what happened and obtained the
money from her. Taylor’s mother also gave Mussare five dollars
in gas money for helping her son. Taylor gave Mussare the rest
of the money after they returned to the car, and Mussare dropped


       2
           There was no phone at Taylor’s apartment.
       3
       Taylor initially asked his mother for $100 or $200, but
Mussare was standing next to him during the call and told him to
get $500.

                                  4
Taylor off at home.

       Taylor eventually told his parents what had really
happened. They took him to the emergency room for treatment
and called the police. The police searched Taylor’s apartment
and found evidence of the assault.

        A grand jury sitting in the Middle District of
Pennsylvania returned a four-count indictment against Bruce,
Mussare, and Shay, charging them with controlled substance
offenses and extortion offenses. Shay began to cooperate with
the government, and on April 25, 2001, the grand jury returned a
superseding indictment against Mussare and Bruce only. The
five count superseding indictment charged Mussare and Bruce
with (1) conspiracy to possess and distribute heroin and
marijuana to persons under 21 years of age; (2) aiding, abetting,
and attempting to possess marijuana with the intent to distribute
it to persons under 21 years of age; (3) aiding, abetting, and
attempting to possess heroin with the intent to distribute it to
persons under 21 years of age; (4) conspiracy to collect a debt
through extortionate means; and (5) using extortionate means to
collect a debt.

       A jury returned a verdict acquitting Bruce and Mussare of
the heroin charges, but convicting them of the extortion-related
charges and conspiracy to possess marijuana. At the sentencing
hearing, Mussare objected to the government’s request for an
upward departure based on permanent bodily injury, arguing that
the departure should only be for serious bodily injury. The
District Court rejected this argument and found that Bruce and
Mussare had inflicted permanent bodily injury on Taylor.
Mussare was sentenced to 210 months in prison and three years
of supervised release. This appeal followed.

                               II.

                               A.

       Mussare first argues that there was insufficient evidence
to support the conviction under Section 894. Review of a

                                5
verdict for sufficiency of the evidence is plenary. United States
v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997). We will reverse a
jury verdict for insufficiency of the evidence “only when the
record contains no evidence, regardless of how it is weighted,
from which the jury could find guilt beyond a reasonable doubt.”
United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1997)
(citation omitted).

       Section 894 provides:

       (a) Whoever knowingly participates in any way, or
       conspires to do so, in the use of extortionate means
                (1) to collect or attempt to collect any
       extension of credit, or
                (2) to punish any person for the
       nonrepayment thereof, shall be fined under this
       title or imprisoned not more than 20 years, or both.

18 U.S.C. § 894. An extension of credit is defined to mean “to
make or renew any loan, or enter into any agreement, tacit or
express, whereby the repayment or satisfaction of any debt or
claim, whether acknowledged or disputed, valid or invalid, and
however arising, may or will be deferred.” 18 U.S.C. § 891(1).
Because of the disjunctive “or,” if the extortionate collection of a
debt involves a loan, there is no additional requirement that the
parties agree to defer repayment of the loan.

       The statute does not define the term “loan.” The term is
generally defined as “[d]elivery by one party to and receipt by
another party of a sum of money upon agreement, express or
implied, to repay it with or without interest.” Black’s Law
Dictionary 936 (6th ed. 1990).

       Mussare argues that the evidence is not sufficient to show
that he and Bruce loaned any money or in any other way
extended any credit to Taylor and Kane. But Taylor testified “I
borrowed–asked to borrow $115 from J. J. Mussare, and it was
given to Jim Kane, and then given to me to buy heroin with.”
(App. at 299.) He also testified that he understood that the
money was to be repaid, either in cash or marijuana. (Id. at 300.)

                                 6
Mussare argues that the jury’s acquittal on the charges of
conspiracy to possess heroin establishes that the jury rejected
Taylor’s testimony characterizing the transaction as a loan.
However, it would not be inconsistent for the jury to acquit
Mussare on the possession of heroin charge, but still believe that
the transaction was a loan. It does not appear that there was any
evidence that Mussare and Bruce sought the heroin for
themselves or even agreed to the heroin buying scheme; they
simply wanted marijuana. Alternatively, even if inconsistent,
there is no requirement that a jury’s verdict be consistent.
See United States v. Powell, 469 U.S. 57, 62-63 (1984). We will
not interpret the jury’s acquittal on the heroin charge as a
rejection of Taylor’s testimony, and that testimony clearly
provides evidence that the transaction was a loan.

        We also observe that, even if a reasonable jury could not
find that a loan existed, it nevertheless could reasonably
conclude that there was an agreement to defer repayment of the
debt Kane and Taylor owed to Bruce and Mussare. Taylor
received the money on Saturday, January 22. Bruce and
Mussare remained at Kane’s apartment until Sunday morning,
while Kane and Taylor each left the apartment, first to purchase
heroin and then to try to sell it for profit. Bruce and Mussare left
the apartment Sunday morning, but returned that evening for
their marijuana. At that point, Kane told them that he had been
unable to resell the heroin, and that he had neither the marijuana
he had promised them or the money to repay them. Bruce and
Mussare again left without incident. It was not until Monday
evening that Bruce and Mussare assaulted Taylor. From this
sequence of events, a reasonable jury could find an agreement to
defer repayment of the debt. See United States v. DiPasquale,
740 F.2d 1282 , 1287 (3d Cir. 1984) (“A tacit agreement may be
implied from the circumstances surrounding the creation of the
debt.”). As such, there was sufficient evidence to support the
jury’s finding that an extension of credit had been made, either
because the initial payment was a loan or because an agreement
to postpone the payment of a claimed debt could be inferred.

                                B.



                                 7
        Mussare next argues that the District Court erred in
admitting certain statements made by Bruce during a gathering
after the beating took place. The District Court admitted these
statements under the hearsay exception for statements of a co-
conspirator. Mussare argues that these statements did not
qualify under that exception and that the admission of those
statements violated his rights under the Confrontation Clause.

        The government asserts that Mussare failed to preserve
this issue through a motion in limine or objection, and that the
issue is therefore waived. Mussare did refer to concerns about
hearsay testimony in his motion for severance. Although we
have held that a pre-trial motion in limine relieves a defendant of
his need to make contemporaneous objections in order to
preserve an issue on appeal, we have not held that a pre-trial
motion for severance is similarly sufficient. Gov’t of the Virgin
Islands v. Joseph, 964 F. 2d 1380, 1384-85 (3d Cir. 1992). We
need not decide that issue here. Several witnesses testified to
hearing Mussare and Bruce make statements about the incident
at a party the following night. Mussare objected on hearsay
grounds to the testimony of two of the witnesses regarding these
statements, and the District Court allowed the testimony under
the co-conspirator exception. Mussare did not object to other
instances of testimony about the statements, but if the previous
objections did not preserve the issue as to the later testimony, we
may still review the admission of the testimony for “plain errors
affecting substantial rights.” Fed. R. Evid. 103(d).

        To establish plain error, Mussare must prove that there is
‘(1) error, (2) that is ‘plain,’ and (3) that ‘affects substantial
rights.’” United States v. Mitchell, 365 F.3d 215, 257-58 (3d Cir.
2004) (quoting Johnson v. United States, 520 U.S. 461, 467
(1997)). If Mussare establishes these elements, we may exercise
our discretion and review the forfeited error if “(4) the error
‘seriously affects the fairness, integrity, or public reputation of
judicial proceedings.’” Id. at 258 (quoting Johnson, 520 U.S. at
467)). Mussare alleges that the admission of the statements
constituted a violation of his rights under the Confrontation
Clause, and such a violation would constitute plain error. In
addition, a Bruton violation is sufficiently severe that it would

                                 8
seriously affect the fairness of judicial proceedings. For these
reasons, we deem the issue to be properly before us.

        The Confrontation Clause guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend
VI. The Supreme Court has interpreted this to mean that, in a
joint trial, the confession of one non-testifying criminal
defendant may not be used as evidence against a co-defendant.
Bruton v. United States, 391 U.S. 123 (1968). We have
interpreted Bruton expansively, holding that it applies not only to
custodial confessions, but also when the statements of the
non-testifying co-defendant were made to family or friends, and
are otherwise inadmissible hearsay. Monachelli v. Graterford,
884 F.2d 749, 753 (3d Cir. 1989); United States v. Ruff, 717
F.2d 855, 857-58 (3d Cir. 1983). A hearsay statement is
admissible under Bruton and its progeny, however, if it falls
within a “firmly rooted” hearsay exception or is “supported by a
showing of particularized guarantees of trustworthiness.”
United States v. Moses, 148 F.3d 277, 281 93d Cir. 1998)
(quoting Idano v. Wright, 497 U.S. 805, 816-17 (1990)).

         Mussare argues that Bruce’s inculpatory statements do
not fit under the hearsay exemption for a co-conspirator’s
statements because they were not made in furtherance of the
conspiracy. But we may affirm on any ground supported by the
record. See United States v. Jasin, 280 F.3d 355, 362 (3d Cir.),
cert. denied 537 U.S. 947 (2002); United States v. Paumbo, 639
F.2d 123, 128 (3d Cir. 1981) (reversing for improper admission
of evidence only after searching for other rules of evidence that
would have justified the district court’s decision). Here, Bruce’s
statements were admissible under Federal Rules of Evidence
804(b)(3), which allows the admission of any “statement which .
. . at the time of its making . . . so far tended to subject the
declarant to . . . criminal liability . . . that a reasonable person in
the declarant’s position would not have made the statement
unless believing it to be true.”

      The witnesses testified that Bruce bragged that he and
Mussare had beaten and branded Taylor the evening before.

                                   9
Where statements inculpate both the speaker and the defendant
challenging their admission, the statements are admissible so
long as they were “self-inculpatory” and not simply self-serving
attempts to deflect criminal liability. Moses, 148 F.3d at 280.
Nothing here suggests that Bruce was attempting to deflect
liability; rather, he took credit for criminal activity. Bruce’s
statements unquestionably tended to subject him to criminal
liability – indeed, one witness recalled that his bragging
prompted an acquaintance to threaten to call the police – and
were thus admissible under Rule 804(b)(3).

       “[A] statement that meets the requirements of Rule
804(b)(3)” is admissible under Bruton because it “by definition
possesses ‘particularized guarantees of trustworthiness.’”
Moses, 148 F.3d at 281. Thus, the District Court did not err in
admitting the witnesses’ testimony about Bruce’s inculpatory
statements.

                                C.

        Mussare also objects to certain limitations the District
Court placed on his cross-examination of two witnesses. He
argues that the District Court unduly limited his
cross-examination of cooperating co-defendant Shay regarding
the deal he had made with the government. In addition, he
argues that the District Court erred in restricting his
cross-examination of Taylor, the victim, regarding outstanding
state criminal charges.

        Limitations that a district court places on
cross-examination are reviewed for abuse of discretion. United
States v. Chandler, 326 F.3d 210, 213 (3d Cir. 2003). The
Confrontation Clause guarantees the right of a criminal
defendant to confront witnesses for the purpose of
cross-examination, and an important part of the
cross-examination is a the exposure of the witness’s biases or
motivation for testifying. Delaware v. Van Ardsall, 475 U.S.
673, 678-79 (1986). Nevertheless, a district court retains “wide
latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on

                                10
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.” Id.

        In Chandler, we found an abuse of discretion when the
district court substantially limited the defendant’s attempts to
cross-examine government witnesses regarding the sentence
reductions they had received and hoped to receive in exchange
for their cooperation and testimony. Id. at 216. The district
court had prohibited any discussion of the penalties the
witnesses would have faced if they did not cooperate. We
recognized a two-part inquiry in determining whether a specific
limitation violates a defendant’s rights under the Confrontation
Clause: (1) whether the limitation significantly limited the
defendant’s right to inquire into a witness’s motivation for
testifying; and (2) whether the constraints imposed fell within
the reasonable limits that a district court has the authority to
impose. Id. We held that the proper inquiry under the first
prong was “whether, if the trial court had not prohibited [the
defendant] from cross-examining [the witnesses] with respect to
the magnitude of the sentence reduction they believed they had
earned or would earn, through their testimony, the jury ‘might
have received a significantly different impression of their
credibility.’” Id.

        In this case the District Court allowed testimony
regarding the fact that Shay was initially charged in an
indictment with the exact same crimes as Mussare and Bruce,
and that a superseding indictment naming only Bruce and
Mussare was handed down only after Shay agreed to cooperate.
The District Court also allowed testimony regarding the plea
deal that the government had discussed with Shay, and why he
had agreed to testify for the government. Shay denied having
any set deal with the government, but did say that the
government would be lenient with him if he testified. Defense
counsel was permitted to introduce a copy of the letter to Shay
confirming the existence of an agreement to cooperate, and
promising an “extremely favorable plea proposal” in exchange
for his cooperation. Shay also testified that bail was initially
denied in his case, but that he was released on conditions after he

                                 11
agreed to cooperate, while Mussare and Bruce remained in jail.
He testified that he hoped that, by cooperating, the government
would “let the charges go back to the state, plead guilty to a
simple assault for what I did, and then forward my future to the
United States Marines” without serving any more jail time.
(App. at 164-65.) The District Court also permitted Mussare’s
attorney to read the original indictment into the record as part of
Shay’s testimony.

        The District Court sustained objections to only a few
questions; two dealt with the maximum penalties Shay would
face if convicted under the initial indictment, and a third dealt
with what his lawyer told him regarding his plea bargain. Shay
was permitted to testify that he knew the government would not
dismiss the federal charges against him if he did not testify
against Bruce and Mussare, and that, in that case, he would be
going to trial on the same charges Bruce and Mussare were
facing. Although the District Court did not permit testimony
regarding the maximum penalty under the guidelines, it indicated
that there may be alternative ways of seeking the same
information.

        Chandler does not require that Shay have been permitted
to testify regarding the magnitude of the sentence reduction he
hoped to receive. Instead, it requires an examination of whether
the magnitude of reduction would likely have changed the jury’s
mind regarding Shay’s motive for testifying. The evidence
showed that Shay expected to have all federal charges against
him dismissed, face only state charges, and receive no jail time.
The evidence also showed that, absent his cooperation, Shay
would be facing the exact same charges as Mussare and Bruce.
Because of the extensive testimony permitted regarding the plea
bargain, the actual number of years in jail that Shay would
otherwise have faced was not likely to have altered the jury’s
impression of his motive for testifying.

       In Chandler, we left unresolved the question of “whether
the Confrontation Clause entitles a defendant categorically to
inquire into the ‘concrete terms of a cooperating witness’s
agreement with the government, including the sentence that

                                12
witness may have avoided through his cooperation.’” Id. at 221.
In order to find a violation in this case, we would have to go
beyond even that question and hold that, even after all of the
details of the plea bargain, as the witness understands them, have
been disclosed, the defendant would still have a categorical right
to inquire into the penalty a cooperating witness would otherwise
have received. We have found no cases holding that such a
categorical right exists, and we decline to so hold. We find that
the District Court did not abuse its discretion with regard to the
limitations placed on the cross-examination of Shay.

        Mussare next argues that the District Court erred in
excluding two documents relating to the outstanding state
criminal charges of the victim, Taylor. He argues that these
documents should have been admitted by the District Court,
because they tend to show Taylor’s bias toward the government
in testifying. In making this argument, Mussare relies heavily on
Davis v. Alaska, 415 U.S. 308 (1974). Mussare’s reliance on
Davis is misplaced.

        In Davis, the trial court prevented any mention of a
government witness’s juvenile record, which indicated that the
witness was serving probation. Id. The defendant offered this
evidence in an attempt to impeach the witness’s credibility, by
showing that the witness had a motive to lie for the prosecution.
Id. at 309. The Supreme Court held that it was an error for the
trial court to prevent any reference to the witness’s record,
because the defendant had a right to show a potential bias,
including any pressure the government might be able to exert
based on the witness’s status as a probationer, as well as the
witness’s fear that he would become a suspect in the matter. Id.
at 316-17.

        Davis is inapplicable here. Taylor was not simply a
government witness, he was the victim in this case, so there was
little danger that he would fear becoming a suspect, and thus
alter his testimony. In addition, the District Court did not
exclude all testimony regarding Taylor’s past. Taylor was
permitted to testify about his drug abuse and his past convictions
for shoplifting. He was also permitted to testify about certain

                                13
crimes for which he had not been convicted, such as car theft.
Mussare was not permitted to question Taylor about certain
charging documents, but those documents were extrinsic
evidence, and not admissible under the Federal Rules of
Evidence. See Fed. R. Evid. 608(b). Although the District
Court did not permit extensive questioning regarding the
pending state charges against Taylor, any effect additional
testimony would have had on his perceived honesty would have
been minimal. In addition, there was no evidence of a plea
bargain in the pending case that was contingent upon Taylor’s
testifying in this case; Mussare’s counsel merely speculated that
might be the case. The District Court did not abuse its discretion
in excluding the evidence.

                                D.

        Appellant challenges his sentence under United States v.
Booker, 543 U.S.        , 125 S. Ct. 738 (2005). In light of the
determination of the judges of this court that the sentencing
issues appellant raises are best determined by the District Court
in the first instance, we will vacate the sentence and remand for
resentencing in accordance with Booker.

                                E.

       For the foregoing reasons, the judgment of the District
Court entered on August 16, 2002 will be AFFIRMED as to the
conviction. The sentence will be vacated and the matter will be
remanded to the district court for resentencing in accordance
with Booker.




                                14
