United States v. Zito (467 F.2d 1401, 1972)

LUMBARD, Circuit Judge:

Anthony and Vincent Zito were convicted in a jury trial before Judge Dool-ing in the Eastern District of New York of violating 18 U.S.C. § 894, which prohibits “the use of any extortionate means (1) to collect or attempt to collect any extension of credit, or (2) to punish any person for the nonrepayment thereof.” Both defendants were sentenced to four years imprisonment. We affirm the convictions.

The facts as they appear from the government’s case indicate that in March, 1968, the gas station owned by Edward Doran, the government’s chief witness, was robbed and approximately $3500 was taken. Unable to borrow money from commercial lending institutions, Doran, who wanted to replace the money quickly, went to Vincent Zito and obtained a loan of $3500, agreeing to pay $175 per week. It subsequently developed that this $175 represented 5% per week interest alone. Late charges of 1% per day were assessed for delayed payments, and if an installment was missed, the entire $175 plus accrued late charges was treated as a new loan with a resultant increase in each weekly interest payment.

Doran was hard pressed to meet these installments and soon fell behind. In April, 1968, he went to his wife’s parents and they agreed to lend him $1400 to give to Vincent Zito. Later that summer Doran obtained a $4000 second mortgage on his home, the proceeds of which he also gave to Vincent Zito. Nevertheless, by the fall of 1968 Doran told Zito that he was broke and could pay nothing more. Not long after, an associate of Vincent Zito’s named Andy Strauss contacted Doran. Strauss, who had been living in Zito’s house since March, 1968, claimed that “Vinnie” Zito had told him to enlist Doran in a planned truck hijacking, which would enable Doran to raise money to help pay off the loan. Doran eventually agreed to participate in this and other illegal ventures for the purpose of raising money to pay to the Zitos.

Despite these efforts, by February, 1969, Doran’s debt had climbed to $13,000. Unable to make further payments, and afraid for his safety, on March 11, 1969, Doran left New York for Wyoming. While he was thus in hiding, Vincent and Anthony Zito and one Danny Zippfel met with Mrs. Doran, her father and her brother. Mrs. Doran testified that the Zitos told her that her husband “better come back because he couldn’t run away from them. No matter where he ran they would find him. And they wanted their money.” Mrs. Doran said that this meeting ma