U.S. v. Bellomo

• Decision Date: 30 April 1999
• Docket Number: 97-1563,97-1542,97-1588 and 97-1599,Docket Nos. 97-1332
• Citation: 176 F.3d 580
• Parties: -2328, 138 Lab.Cas. P 10,433 UNITED STATES of America, Appellee, v. Liborio BELLOMO, also known as Barney, James Ida, also known as Jimmy, also known as Little Jimmy, also known as the Little Guy, and Nicholas Frustaci, also known as Nicky the Blond, Defendants-Appellants, Thomas Cestaro, also known as Gigali, also known as Gigalese, Thomas Barrett, John Schenone, also known as Big John, Anthony Pisapia, also known as Tony Waterguns, also known as Fat Tony, Louis Zacchia, also known as Louis Zack, Anthony Coiro, Michael Autuori, Leonard Cerami, Louis Ruggiero, Sr., Colombo Saggese, also known as Edward, Joseph Pisacano, James Pisacano, Albert Setford, also known as Spike, Vincent Batista, also known as Skippy, Vincent Romano, and Michael Generoso, also known as Mickey Dimino, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

Page 580

176 F.3d 580

83 A.F.T.R.2d 99-2328, 138 Lab.Cas. P 10,433

UNITED STATES of America, Appellee, v. Liborio BELLOMO, also known as Barney, James Ida, also known

as Jimmy, also known as Little Jimmy, also known as the

Little Guy, and Nicholas Frustaci, also known as Nicky the

Blond, Defendants-Appellants,

Thomas Cestaro, also known as Gigali, also known as

Gigalese, Thomas Barrett, John Schenone, also known as Big

John, Anthony Pisapia, also known as Tony Waterguns, also

known as Fat Tony, Louis Zacchia, also known as Louis Zack,

Anthony Coiro, Michael Autuori, Leonard Cerami, Louis

Ruggiero, Sr., Colombo Saggese, also known as Edward, Joseph

Pisacano, James Pisacano, Albert Setford, also known as

Spike, Vincent Batista, also known as Skippy, Vincent

Romano, and Michael Generoso, also known as Mickey Dimino, Defendants.

Docket Nos. 97-1332, 97-1542, 97-1563, 97-1588 and 97-1599.

United States Court of Appeals,

Second Circuit.

Argued Dec. 1, 1998.

Decided April 30, 1999.

John Pollok and Susan Wolfe, Hoffman, Pollok & Pickholz, LLP, New York, NY (David M. Greenberg, of counsel), for Appellant James Ida.

Alan S. Futerfas, New York, NY (Ellen B. Resnick, of counsel), for Appellant Nicholas Frustaci.

Nelson A. Boxer, Assistant United States Attorney for the Southern District of New York, (Mary Jo White, United States Attorney, Maria A. Barton, Barbara A. Ward, Dietrich L. Snell, Craig A. Stewart, Assistant United States Attorneys, of counsel), for Appellee.

Before: VAN GRAAFEILAND, CABRANES and NOONAN, ^* Circuit Judges.

NOONAN, Circuit Judge:

James Ida and Nicholas Frustaci appeal their convictions, entered following a jury trial in the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ), of violations of RICO, 18 U.S.C. § 1962(c) and (d) and of various additional charges of murder, conspiracy to murder, illegal gambling, conspiracy to control a union election by violence, extortion, interstate transportation of stolen property, mail fraud, and fraud upon the Internal Revenue Service. Ida appeals the forfeiture of his property. We affirm the forfeiture of Ida's property and we affirm his conviction in part; and we affirm Frustaci's conviction.

PRELIMINARY OBSERVATIONS

The indictment charged "the Genovese Family of La Cosa Nostra" as an enterprise as defined by RICO, 18 U.S.C. § 1961(4) and added that the Genovese Family "was part of a nationwide criminal organization known by various names, including 'the Mafia' and 'La Cosa Nostra', which operated through entities known as 'Families'." These allegations in the indictment were proven at trial by the government's witnesses. These characterizations are not challenged on appeal.

A large part of the government's case depended on testimony on "the rules" governing the organization of the Families of La Cosa Nostra. The testimony was that the Families were organized in a hierarchy regularly consisting of the boss, the underboss and the consigliere. Lesser authority was assigned to capos who had a small number of persons reporting to them. The rules required that those working for the capos disclose their criminal activities and share their proceeds with the capos, who in turn would report and share with the higher officers. Members of a Family were initiated into the Family in a formal induction and were thereafter considered "made." Associates worked with made members under the Family's direction. Hangers-on helped the organization but were neither members nor associates. The hierarchy and control structure in La Cosa Nostra have similarly been demonstrated in other cases. E.g., United States v. Gigante, 166 F.3d 75 (2d Cir.1999); United States v. Locascio, 6 F.3d 924, 936-37 (2d Cir.1993); United States v. Pungitore, 910 F.2d 1084, 1098 (3d Cir.1990).

The structure of the crime families was outlined by government experts and also by Alphonse D'Arco, who had been the acting boss of the Lucchese Family, and Carmine Sessa, who had been the acting boss of the Colombo Family. Parts of D'Arco's and Sessa's testimony bear on the structure and rules of the Families of La Cosa Nostra. It was within the province of the jury to decide if this testimony was probative as to the structure and rules of the Genovese Family.

The defendants point out that the rules in a number of respects were not observed. The rule against drug dealing was not observed, for example, by D'Arco. The rule against a member introducing himself or stating his rank in the organization was not always kept as the testimony of D'Arco also indicates. There was a further discrepancy between D'Arco's testimony that a member running a gambling operation did not have to share the proceeds with his capo and the testimony of a government expert that he did. The jury had to decide who to believe on that question. The jury had to decide how regularly the rules were kept. The jury had sufficient information to determine whether a rule could be treated as an indicator of actual conduct or whether a rule was infrequently or never observed.

The defendants appeal many of the evidentiary rulings of the district court on the ground that hearsay was improperly admitted. Under the rule set out by Gigante, 166 F.3d at 82, in order to comply with Fed.R.Evid. 801(d)(2)(E) and admit the testimony of a coconspirator, the district court "in each instance must find the existence of a specific criminal conspiracy beyond the general existence of the Mafia." It is objected that evidence was admitted simply on the theory that the coconspirators' statements were in furtherance of the general conspiracy of La Cosa Nostra.

This court directed the appellants to provide briefing with specific instances of where the hearsay of coconspirators was improperly admitted on this basis. It is now apparent that a number of the instances objected to were not instances of hearsay, that is, statements made by an out-of-court declarant offered by a witness for the truth of the matter stated. See Fed.R.Evid. 801(c); United States v. Detrich, 865 F.2d 17, 20 (2d Cir.1988); 6 Wigmore on Evidence § 1776 (Chadbourn rev. 1976 & 1998 Supp.). The most significant statements fall into the category of commands as to which the witness was the percipient hearer of the command. Statements offered as evidence of commands or threats or rules directed to the witness, rather than for the truth of the matter asserted therein, are not hearsay. United States v. Stratton, 779 F.2d 820, 830 (2d Cir.1985).

In this fashion the defendants object to what was non-hearsay when they object that near the start of his testimony, Carmine Sessa was permitted to testify to what Carmine Persico, the boss of the Colombo Family, told him about his duty to carry out orders, including murder, and his obligation of overriding loyalty to the Colombo Family. Similarly Ida objects to D'Arco's account of his conversation with Victor Amuso when D'Arco was told that he was being made the acting boss. D'Arco testified that Amuso gave this order to him: "None of this and none of this without my okay," accompanying these two expressions with two gestures, one a pinch of his fingers and the other pointing a finger like a gun. There was no hearsay. D'Arco's testimony was to the communication of words he heard and gestures he saw. The meaning of the gestures, as understood by D'Arco, was "no making of members" and "no killing of people" without the boss's okay.

In another instance where Ida alleges hearsay, Sessa was asked, "What was your understanding of why Dominick Somma was being killed?" to which Sessa answered, "I was told that he was dealing in drugs." The answer bore on Sessa's state of mind not on the truth of the motive for murder. Frustaci objects that D'Arco bolstered his credibility by testimony showing his inside knowledge of the crime families particularly by testifying to statements made to him. Such testimony similarly went to D'Arco's state of mind not to the truth of any fact in any declaration to which he testified. Again, Sessa testified that he had "criminal conversations while everybody was around the table." He was able to testify without hearsay as to what he himself had done, viz., engage in such conversation. He also testified that he usually met with his crew on weekdays and in restaurants. This testimony, now italicized in briefing as objectionable hearsay, is but a simple report of Sessa's own conduct.

Sessa also testified that he carried out an order to kill an informer by shooting at him six times as the informer backed into his own garage. Within two hours he reported the shooting to the acting boss of the Colombo Family at the latter's home; that report consisted in a single sentence: "Everything's okay with that thing." The report was made from a pay phone "so there would be no record." Ida objected only to Sessa's testifying to his single-sentence report. The testimony was properly admitted. Sessa was testifying to what he himself had said.

Again, D'Arco testified to a narcotics transaction in which he received a kilo from Davie Petillo, an associate of Lucky Luciano. D'Arco was testifying to his own crime. Another "hearsay" objection is made to D'Arco's testimony that he saw Dilorenzo playing cards with a known federal informer and that "Carlo later on observed the same thing himself and came back and told me it's true." The testimony related specifically to the murder conspiracy with which Ida was charged, and which was proven by independent evidence to include Ida.

Finally, there is a general objection by both appellants to testimony about a number of murders and other acts of violence by the Colombo and Lucchese Families with the effect of leading the jury to think that members of the Genovese Family would behave in the same way of life. The objection is essentially an objection to relevance, not an objection to hearsay. As to relevance, it was--within broad limits not transgressed here--in the...