U.S. v. Barone

• Decision Date: 06 December 1996
• Docket Number: No. 94-1593,94-1593
• Parties: 47 Fed. R. Evid. Serv. 211 UNITED STATES of America, Appellee, v. Pasquale G. BARONE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1284

114 F.3d 1284

47 Fed. R. Evid. Serv. 211

UNITED STATES of America, Appellee, v. Pasquale G. BARONE, Defendant, Appellant.

No. 94-1593.

United States Court of Appeals First Circuit.

Heard Dec. 6, 1996.

Decided June 6, 1997.

Bernard Grossberg, for appellant.

Cynthia A. Young, Attorney, United States Department of Justice, with whom Donald K. Stern, United States Attorney, and Jeffrey Auerhahn, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Defendant-appellant Pasquale G. "Patsy" Barone and seven co-defendants were charged in a sixty-five-count superseding indictment with a variety of RICO ¹ and other offenses. The indictment charged Barone with RICO conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); the underlying substantive RICO offense in violation of 18 U.S.C. § 1962(c) (Count Two); conspiracy to commit the murder of Vincent James "Jimmy" Limoli, Jr. in aid of racketeering (Count Three), and the murder of Limoli in aid of racketeering (Count Four), both in violation of 18 U.S.C. § 1952(B), now codified as amended at 18 U.S.C. § 1959.

Because of the pendency of the government's appeal from the district court's ruling in favor of Barone on his motion to suppress certain post-arrest statements, see United States v. Barone, No. 89-289-WF, 1991 WL 353883 (D.Mass.Aug.21, 1991), aff'd, 968 F.2d 1378 (1st Cir.1992), the district court ordered that Barone be tried separately from his co-defendants (who, with the exception of one who was a fugitive at the time, subsequently pleaded guilty). On October 20, 1993, after a nine-week trial, the case was submitted to the jury. On October 25, and again on October 27, 1993, the district court gave the jury a "modified Allen charge" in response to communications from the jury indicating that it was deadlocked. On October 28, 1993, the district court, acting pursuant to Federal Rule of Criminal Procedure 23(b), dismissed one of the jurors for just cause after conducting a lengthy inquiry into the effect on the juror and the jury of the juror's unsolicited receipt of extrajudicial information from a Federal Protective Service Officer. Having determined that the remaining jurors were capable of continuing to deliberate fairly and impartially, the district court exercised its discretion under Rule 23(b) to allow the remaining eleven jurors to deliberate to a verdict, rather than declare a mistrial.

On October 29, 1993, the eleven-member jury returned verdicts of guilty as to Counts One through Three, but failed to agree as to Count Four, the murder charge. The district court accepted the jury's verdicts as to Counts One through Three and declared a mistrial as to Count Four. On December 20, 1993, Barone filed a motion for a new trial, which the district court denied on January 25, 1994. United States v. Barone, 846 F.Supp. 1016 (D.Mass.1994). On April 25, 1994, the court sentenced Barone to life imprisonment on Count Three and to twenty years on each of Counts One and Two, with each sentence to be served concurrently with the others. Barone now appeals his conviction. We affirm.

I.

The superseding indictment charged Barone with agreeing to participate and participating in the following predicate acts of racketeering, see United States v. Saccoccia, 58 F.3d 754, 764 (1st Cir.1995), cert. denied, 517 U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996), as an "associate" of the Patriarca Family of La Cosa Nostra (also known as the Mafia; hereinafter "LCN"), alleged to be the RICO enterprise: (i) assault with intent to murder, murder of Anthony "Dapper" Corlito, and conspiracy to do the same; (ii) assault with intent to murder, murder of Jimmy Limoli on behalf of Vincent M. "Vinnie" Ferrara, and conspiracy to do the same; and (iii) assault with intent to murder Social Services Credit Union ("credit union") security guard Kenneth McPhee, assault with intent to rob Kenneth McPhee and credit union employee Lucy LoPriore, and robbery of Lucy LoPriore of property belonging to the credit union. The indictment also charged Barone with a number of overt acts of the racketeering conspiracy.

We summarize the facts relating to these predicate acts, insofar as relevant to the issues raised in this appeal, taking the evidence as the jury could permissibly have found it, and viewing the record and drawing all reasonable inferences in the light most favorable to the government. See, e.g., United States v. Zannino, 895 F.2d 1, 4 (1st Cir.1990).

The testimony of expert and cooperating witnesses established the existence, structure, and nature of the Patriarca Family--as an organized "enterprise" within the meaning of 18 U.S.C. § 1961(4), conspiring to and engaging in loansharking, bookmaking, drug trafficking, extortion, murder, obstruction of justice, and other illegal activity--and Barone's activities and relationships to others as an associate of the Patriarca Family. See generally United States v. Angiulo, 847 F.2d 956, 973-75 (1st Cir.1988) (allowing FBI agent to testify as an expert regarding the structure and operations of the Patriarca Family of LCN, and the nature of the defendants' relationships to the organization).

In the early 1980s, the Patriarca Family was run by boss Raymond Patriarca, Sr., underboss Gennaro "Gerry" Angiulo, consigliere Vittore Nicolo Angiulo, and capo regimes including Donato F. "Danny" Angiulo, Samuel S. Granito, and Ilario M.A. Zannino. When Raymond Patriarca, Sr. died in July 1984, Raymond Patriarca, Jr. became the boss and William Grasso became the underboss. In the late 1970s and early 1980s, Vincent Ferrara was an associate of the Patriarca Family assigned to the regime of Danny Angiulo. In 1983, Ferrara became a "made member" and soldier in Danny Angiulo's regime. ² Barone and his close friend Limoli were associates of the Patriarca Family who both wanted to become "made members" of the organization, and who began their efforts to accomplish this goal by selling illegal fireworks for Ferrara in the 1970s.

Walter Anthony Jordan (hereinafter "Jordan") testified for the government at Barone's trial. He and his brother Chris Jordan were also associates of the Patriarca Family. Jordan met Barone and Limoli in late 1981 or early 1982. Barone later married Jordan's sister Kim. Limoli was Barone's best man at the wedding and became godfather to Barone and Kim's child. Beginning in the summer of 1984, Jordan sold illegal fireworks, giving the money from the sales to Limoli or Barone. Jordan testified that Barone told him that all the money from these sales went to Ferrara, with Barone receiving a percentage, along with Ferrara's loyalty. Jordan also testified that Barone told him that he needed Ferrara's permission in order to commit any illegal activities, and that he was "under [Ferrara's] wing," and would be a "made member" of the Patriarca Family one day, moving up in the ranks with Ferrara.

One of the predicate acts of racketeering with which Barone was charged is the murder of Anthony Corlito, who, along with Giacomo A. "Jackie" DiFronzo and others, was a member of a rival North End gang. Jordan testified that Ferrara and DiFronzo "didn't get along" because DiFronzo had "ripped off" the Angiulos' North End card games during the late 1970s. Elizabeth DiNunzio, Limoli's sister, testified that Limoli told her that Gerry Angiulo hired Ferrara--who then enlisted the aid of Limoli--to kill DiFronzo because DiFronzo "had a bad drug problem" and "was robbing all the people in the North End." DiNunzio testified that Limoli told her that, on December 11, 1977, after fighting with DiFronzo at an Endicott Street club, Ferrara shot DiFronzo in the head; that Limoli thereafter kicked DiFronzo in the head; and that the two placed DiFronzo in a chair and set the chair and the club on fire.

Jordan testified that Corlito swore vengeance on Ferrara for the murder of DiFronzo, and that Corlito was murdered by Ferrara, Limoli, and Barone on July 21, 1979. According to Jordan, Barone told him that he, Limoli, and Ferrara came upon Corlito and his girlfriend on Fleet Street and started shooting at Corlito. After Ferrara left the scene, Limoli continued to fire at Corlito and Barone urged Limoli to leave. Eventually, Barone and Limoli ran to Hanover Street, where they got into a car and drove off. DiNunzio testified that Limoli told her that Ferrara paid Limoli and Barone $1,000 each for killing Corlito.

Another racketeering offense with which Barone was charged is the November 5, 1982 robbery of credit union teller Lucy LoPriore of a bag of cash belonging to the credit union as she and security guard Kenneth McPhee walked from the First National Bank on Hanover Street to the credit union at the corner of Parmenter and Salem Streets in the North End. According to witnesses, the robbery occurred between 10:00 and 10:30 a.m. and was perpetrated by two masked men. In the course of the robbery, McPhee was shot in the calf and in the neck. The owner of a Salem Street hardware store saw Limoli run down Salem Street from Parmenter Street.

Jordan testified that Barone told him that he and Limoli were responsible for the robbery and that Barone had shot the security guard in the neck. Barone said that the stolen cash amounted to $30,000, with Ferrara taking $15,000, and Limoli and Barone splitting the rest between them.

DiNunzio testified that, on the morning of the credit union robbery, Limoli came to her house carrying a box and asked her for lemon juice, saying that if you wash your hands with lemon juice, "they can't tell that you shot a gun." According to DiNunzio, after the robbery was reported on the noontime news, Limoli admitted to her that he and Barone had committed the robbery; that he had shot security guard McPhee in the foot; and that Barone had shot McPhee in the neck. DiNunzio testified that Barone and Chris Jordan...