U.S. v. Malpeso

• Decision Date: 03 June 1997
• Docket Number: 979 and 980,D,Nos. 922,s. 922
• Parties: 47 Fed. R. Evid. Serv. 572 UNITED STATES of America, Appellee, v. Louis MALPESO, aka Bobo; Robert Gallagher; Joseph Amato, Defendants-Appellants. ockets 96-1237, 96-1262 and 96-1263.
• Court: U.S. Court of Appeals — Second Circuit

Page 155

115 F.3d 155

47 Fed. R. Evid. Serv. 572

UNITED STATES of America, Appellee, v. Louis MALPESO, aka Bobo; Robert Gallagher; Joseph Amato,

Defendants-Appellants.

Nos. 922, 979 and 980, Dockets 96-1237, 96-1262 and 96-1263.

United States Court of Appeals,

Second Circuit.

Argued March 24, 1997.

Decided June 3, 1997.

Judd Burstein, Burstein & Fass LLP, New York City (Marc Fernich, Burstein & Fass LLP, New York City, of counsel), for Defendant-Appellant Louis Malpeso.

John L. Pollok, Hoffman & Pollok, New York City (Gerald L. Shargel, Jeffrey Lichtman, Michael S. Pollok, Hoffman & Pollok, New York City, of counsel), for Defendant-Appellant Robert Gallagher.

Alan S. Futerfas, New York City, for Defendant-Appellant Joseph Amato.

Valerie Caproni and Sung-Hee Suh, Assistant United States Attorneys, Brooklyn, N.Y. (Zachary W. Carter, United States Attorney, Eastern District of New York, David C Before NEWMAN, Chief Judge, MINER and GODBOLD, ^* Circuit Judges.

James, Assistant United States Attorney, Brooklyn, N.Y., of counsel), for Appellee.

MINER, Circuit Judge:

Defendants appeal from judgments entered in the United States District Court for the Eastern District of New York (Dearie, J.), following a jury trial, convicting them of numerous offenses arising from their participation in a war between competing factions of the Colombo organized crime family. Defendant-appellant Louis Malpeso was convicted on four counts of acts of violence or conspiracies to commit acts of violence, for the purpose of maintaining and increasing position in a criminal enterprise, in violation of 18 U.S.C. § 1959, two counts of using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Malpeso was sentenced to a 95-year term of imprisonment, a 3-year term of supervised release, restitution in the amount of $24,962.35, and a $350 special assessment. Defendant-appellant Robert Gallagher was convicted on four counts of violating 18 U.S.C. § 1959 and two counts of violating 18 U.S.C. § 924(c)(1), and was sentenced to a 39-year term of imprisonment, a 3-year term of supervised release, restitution in the amount of $13,740.00, and a $300 special assessment. Defendant-appellant Joseph Amato was convicted on one count of being an accessory after the fact to murder, in violation of 18 U.S.C. § 3, and, under a separate indictment and after a separate trial, one count of violating § 924(c)(1), and was sentenced to a 211-month term of imprisonment, a 3-year term of supervised release, restitution in the amount of $11,222.35, a fine of $50,000 and a $100 special assessment.

BACKGROUND

The charges in this case arose from an internal power struggle (the "Colombo war") between two rival factions of the Colombo Organized Crime Family of La Costa Nostra (the "Colombo Family" or the "family"): those loyal to Carmine Persico, the imprisoned family boss, and those loyal to Victor J. Orena, the acting boss of the family. We have chronicled on many occasions the events of the Colombo war, most recently in United States v. Orena, 32 F.3d 704 (2d Cir.1994), United States v. Brady, 26 F.3d 282 (2d Cir.1994), United States v. Scopo, 19 F.3d 777 (2d Cir.1994), United States v. Amato, 15 F.3d 230 (2d Cir.1994), and United States v. Orena, 986 F.2d 628 (2d Cir.1993). Thus, we will discuss only those events relevant to the prosecution giving rise to this appeal, all of which occurred between mid-1991 and 1994, when conflicts between the rival factions became violent.

Malpeso, Gallagher and Amato, all members of the Orena faction, were charged with crimes relating principally to two planned "hits" on Persico faction members that went awry. The first involved the killing of Matteo Speranza, a 17-year-old boy who worked in a bagel store believed to be owned by two Persico faction members (the "Speranza Murder"). The second involved the shooting of Daniel Norden, a 16-year-old boy and innocent bystander, who sustained nearly fatal injuries (the "Avenue P shooting"). Additional evidence was presented at trial concerning other incidents in which one or more of the defendants were involved in plots or attempts to murder members of the Persico faction.

The charges were proved primarily through the testimony of an accomplice witness, Christopher Liberatore ("C.Liberatore"), who participated in several violent incidents with the defendants. C. Liberatore's testimony regarding the defendants' participation in the Colombo war was corroborated by tape-recorded conversations, law enforcement surveillance, evidence seized during searches, and the testimony of his father, Anthony Liberatore ("A.Liberatore"), another accomplice witness.

I. The Speranza Murder

Orena faction members met frequently at "Cafe on N", a social club owned by Joseph Scopo and operated by Gallagher, Craig Marino and John Baudanza (all Orena loyalists). In 1991, John Rosatti, also an Orena loyalist, came to Cafe on N to speak to Orena. Rosatti wanted Gregory Scarpa, Sr., a Persico faction member, killed because he had apparently abused one of Rosatti's employees. Subsequently, members of the Orena faction tried unsuccessfully to kill Scarpa, setting off an extended course of violence between the factions.

By late 1991, Orena loyalists had a standing order to kill anyone who was loyal to Persico. C. Liberatore was an "associate" in the Orena faction, as opposed to a full "member", ¹ and was assigned to follow Malpeso's orders. Malpeso was one of several members of the Orena faction who followed Pasquale Amato ("Patty Amato"), a captain in the Colombo Family. Over the next few months, there were various shootings and murders involving the two factions, the facts of which were related by C. Liberatore at trial.

On December 6, 1991, C. Liberatore and Malpeso were at Cafe on N celebrating their birthdays when those present at the cafe learned that Vincent Fusaro, an Orena faction associate, had been killed by Scarpa and his crew. In response, a plan was devised by Malpeso and Amato to murder Persico loyalists Frank Guerra a/k/a "BF" and Anthony Ferrara the following night. In the early morning of December 8, 1991, Malpeso, Amato, the Liberatores and Tommy Cappa set out in three cars to find and kill Guerra and Ferrara. Malpeso drove a "safe car," a car in which no firearms were carried. A. Liberatore was driving a second car, with C. Liberatore as the shooter. Amato and Cappa were in Amato's car. Everyone but Malpeso was armed.

The hit team drove to Ferrara's house and then to Guerra's house, but found no activity at either, so they proceeded to Wanna Bagel, a shop believed to be owned by Ferrara and Guerra. At the bagel shop, the lights were on and a person was inside, but the hit team determined that it was neither Ferrara nor Guerra. The team drove back to Ferrara's house, and then to Guerra's house, where they decided to park and wait for Guerra's return. At this point, the team noticed a black Lincoln repeatedly passing by them. Sensing that the automobile might contain enemies, they decided to move on, with the Lincoln trailing them. A few minutes later, C. Liberatore entered Malpeso's car to provide protection in case there was a gun fight with the Lincoln's occupants.

The Lincoln soon stopped following the group. However, when it turned away, the hit team followed, eventually ending up in a driveway. There, Malpeso ordered C. Liberatore to shoot the Lincoln's passengers, but C. Liberatore, with the support of Amato, declined. At this point, the team disbanded.

C. Liberatore and Malpeso went back to Malpeso's apartment. Shortly thereafter, Malpeso was informed by phone that his sons had been shot. According to C. Liberatore's testimony, Malpeso indicated that he thought the people in the black Lincoln were responsible, and ordered C. Liberatore to go "get the guys in the black [Lincoln]," "go find Anthony [Ferrara] and [Guerra]," and "go kill the guys in the bagel store." (Tr. at 353). C. Liberatore called A. Liberatore, who picked him up at Malpeso's and agreed to help carry out Malpeso's orders.

The two Liberatores drove to Ferrara's, then Guerra's, then the last location of the Lincoln, then to the bagel store. They repeated that circuit twice, finally stopping at the bagel store. C. Liberatore waited until a customer left, then entered the store and looked to see if anyone was in the back. Seeing no one, he asked Speranza, the clerk behind the counter, where Ferrara and Guerra were. Speranza asked why C. Liberatore was looking for them, and reached under the counter. Seeing Speranza reach under the counter, C. Liberatore pulled out his gun and The Liberatores went to an off-track gambling location run by Malpeso, where they told Malpeso, Amato and others present what had happened. Patty Amato arrived and, after a private conversation with Malpeso and Amato, ordered Amato to hide C. Liberatore from the police. Amato then directed Chris Barrett, an associate of his, to take C. Liberatore to Barrett's apartment and keep him there until further notice. Barrett did so. According to A. Liberatore's testimony, he, Amato and other confederates then went back to A. Liberatore's car and drove it to an industrial area in Canarsie, where they wiped it down for fingerprints and pulled the ignition out to make it appear as though it had been stolen and abandoned.

shot Speranza several times, then fled the store. The Liberatores drove home, where C. Liberatore showered while A. Liberatore abandoned the car in the Georgetown section of Brooklyn. The gun used in the shooting was broken and disposed of, and A. Liberatore's wife was told to report his car stolen.

II. The Avenue P Shooting

Following the Speranza murder, C. Liberatore continued to be assigned to Malpeso, who continued to be part of Patty Amato's crew. According to C. Liberatore's...