U.S. v. Amato

• Decision Date: 19 January 1994
• Docket Number: No. 573,D,573
• Citation: 15 F.3d 230
• Parties: 39 Fed. R. Evid. Serv. 620 UNITED STATES OF AMERICA, Appellee, v. Pasquale AMATO, Defendant-Appellant. ocket 93-1398.
• Court: U.S. Court of Appeals — Second Circuit

Page 230

15 F.3d 230

39 Fed. R. Evid. Serv. 620

UNITED STATES OF AMERICA, Appellee, v. Pasquale AMATO, Defendant-Appellant.

No. 573, Docket 93-1398.

United States Court of Appeals Second Circuit.

Argued Dec. 3, 1993.

Decided Jan. 19, 1994.

Andrew Weissmann, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, David C. James, Assistant United States Attorney, Brooklyn, NY, of counsel), for appellee.

Herald Price Fahringer, New York, NY (Diarmuid White, Benjamin Brafman, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, New York, NY, of counsel), for defendant-appellant.

Before: KEARSE, PIERCE, and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

Defendant Pasquale Amato appeals from a judgment entered following a jury trial in the United States District Court for the Eastern District of New York (Weinstein, J.), convicting him of all seven counts under a superseding indictment charging him with substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(c), (d); murder and conspiracy to murder, 18 U.S.C. Sec. 1959(a)(1), (5); conspiracy to make extortionate extensions and collections of credit (that is, loansharking), 18 U.S.C. Secs. 892, 894; and illegal possession of a gun and ammunition, 18 U.S.C. Sec. 922(g)(1). Amato was sentenced to life in prison on the murder and RICO counts, and the statutory maximum prison terms on the remaining counts, with the sentences to run concurrently. Amato was also fined $250,000 on each of the seven counts. 821 F.Supp. 870.

On appeal, Amato principally challenges the sufficiency of the loansharking evidence, and several evidentiary rulings regarding loansharking and internecine mob warfare. He also contends that the gun count should have been severed and that he was denied "individualized" sentencing. Finding no merit in his contentions, we affirm.

I. BACKGROUND

In 1992, Pasquale Amato, Victor Orena, Carmine Sessa and Michael Sessa, members of the Colombo organized-crime family, were indicted on a variety of charges, including loansharking, the loansharking-related murder of Colombo family member Thomas Ocera, and various slayings and murder attempts related to a Colombo family internal dispute. A prior opinion of this court, familiarity with which is assumed, resulted from this prosecution. See United States v. Orena, 986 F.2d 628 (2d Cir.1993). Amato was tried separately. The following facts are drawn from the government's evidence at Amato's trial, which consisted primarily of testimony by four coconspirators, and court-authorized and consensual tape recordings. The four cooperating witnesses were Michael Maffatore and Harry Bonfiglio, who disposed of the body of Thomas Ocera; Joseph Ambrosino, a member of the Colombo family; and Alphonse D'Arco, the one-time acting boss of another crime family.

The senior members of the Colombo family, as in other mob families, consist of a boss, an underboss and a counselor. This administration runs a network of crews. Each crew is composed of a number of soldiers headed by a captain. Some of the soldiers are "made" members of the family, that is, formally sworn to allegiance in an induction ritual. Other soldiers are "associates" who for the most part are aspiring to become made members. The soldiers and captains carry out most of the criminal activities, channelling much of the proceeds to upper layers of the criminal hierarchy.

One of the principal income-generating activities of the Colombo family is loansharking. The cash capital for loansharking usually comes from the higher levels of command and is funnelled down through the captain to his crew members. A crew member lends money to a customer at extortionate rates of interest, commonly three to five percent per week, and enforces repayment with violence or threats of violence. The crew member retains only part of the interest payment, known as vigorish, and the remainder flows back up the chain of command.

During the early 1990s, the Colombo family was in upheaval because its boss, Carmine "Junior" Persico, was incarcerated and was being threatened with ouster by the acting boss Victor Orena, Amato's codefendant. Family members split into factions loyal to Persico or Orena, took up arms, and fought an internecine war. Amato had been a captain in the Colombo family since at least 1988 and was closely allied with Orena, at one point serving as his acting underboss. Although members of Amato's crew were caught up in the Colombo family internal dispute, Amato was not indicted for any of the ensuing carnage. According to trial testimony, members of Amato's crew included (i) Jack Leale, who, with Amato, killed Thomas Ocera for reasons apparently unrelated to the family dispute; (ii) Joseph "Joey" Amato (no relation), who ran a loansharking operation and was described as Amato's "right arm"; (iii) Robert Donofrio, who ran a loansharking operation to which Amato contributed $20,000; and (iv) Joseph Ambrosino, who testified against Amato at trial.

Thomas Ocera was a made member of the Colombo family. In addition to his loansharking activities, Ocera ran a restaurant called the Manor in Merrick, Long Island. There was evidence that Ocera may have been a member of Amato's crew, and that Amato contributed funds to Ocera's loansharking business. Amato and Leale met frequently with Ocera at the Manor in the morning before it opened.

On October 5, 1989, about a month before Ocera's death, the Suffolk County police executed a search warrant for the Manor, and seized Ocera's record books. Among these records was a datebook containing names and numbers that were shown at trial to be accounts of loans made and vigorish owed. Ocera tried and failed to get the police to return the datebook. Testimony provided by a manager at the Manor revealed that, in the month following the search, Ocera began to drink heavily and grew despondent, talking about how he expected to be killed. He and the restaurant manager received anonymous death threats, and, in one incident, were menaced by a car driven by a Colombo family soldier.

Early in November 1989, Victor Orena ordered Leale to kill Ocera, reportedly because Ocera was skimming money from the loansharking operation. On November 13, 1989, Leale lured Ocera to Amato's house. There, with Amato's help, Leale garroted Ocera and placed the body in the trunk of a car he had borrowed from his brother-in-law, Bonfiglio. Leale, assisted by (among others) his driver Maffatore and Bonfiglio, buried Ocera's body later that night in Forest Park, Queens. Amato did not appear at the Manor for his morning meeting with Ocera the next day or ever again. The day after the murder, in accordance with crime family practice, Leale was awarded Ocera's two gambling clubs. Bonfiglio and Maffatore, however, were not compensated, and grumbled in intercepted conversations about not receiving credit from Amato for helping to bury Ocera. Both eventually cooperated with law enforcement authorities and fingered Amato and Leale.

Directed to the spot by Maffatore, the FBI unearthed Ocera's remains on October 3, 1991, almost two years after the murder. An arrest warrant was issued for Leale. Four weeks later, he was found shot to death in a parking lot on Long Island. On January 31, 1992, the FBI searched Amato's home and seized a Davis Industries .380 gun and ammunition that had been purchased in the same consignment as guns found in the possession of other Colombo family members. By April 1992, the government had amassed enough evidence to indict Amato and Orena for Ocera's murder and for weapons possession. A superseding indictment added counts under the RICO and loansharking statutes, and also charged Orena and the Sessas with slayings and murder attempts related to the Colombo family war. The charges against Amato were eventually severed and, in January 1993, he was convicted of all seven counts against him after a jury trial before the Honorable Jack B. Weinstein, who also presided at the jury trials of two of Amato's co-defendants.

II. DISCUSSION

A. Admissibility of Coconspirators' Statements Regarding Loansharking

Amato challenges two items of loansharking evidence as inadmissible hearsay: (1) the testimony of Ambrosino, an Amato crew member, that Donofrio told him that: Amato loaned Donofrio $20,000 in June 1991 at the rate of one percent per week, and Donofrio made two payments to Amato before suspending payments as a result of the Colombo family internal dispute; and (2) Ocera's loansharking records, conceded by Amato to be authentic, that were seized from the Manor by the Suffolk County police. We affirm the trial court's rulings that this evidence was not hearsay and was admissible under Fed.R.Evid. 801(d)(2)(E) as the statements of coconspirators.

To admit a coconspirator's statement under Rule 801(d)(2)(E), the trial court must first find by a preponderance of the evidence that the statement was made by a coconspirator of the defendant during the course of the conspiracy and in furtherance of it. See United States v. Tracy, 12 F.3d 1186, 1195-1196 (2d Cir.1993). The trial court's preliminary factual findings under Rule 801(d)(2)(E) will not be disturbed unless clearly erroneous. United States v. Maldonado-Rivera, 922 F.2d 934, 959 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991). At issue is whether a preponderance of the evidence established that Donofrio and Ocera were participants with Amato in the Colombo family loansharking conspiracy, and if so, whether their statements and records implicating Amato were made during the course and in furtherance of the conspiracy. As to Amato's membership in the conspiracy, this standard was met by evidence that loansharking was a principal activity of the Colombo family and that Amato was a captain in the family hierarchy.

As to Donofrio,...