257 F.3d 210 (2nd Cir. 2001), 99-1168, United States v Monteleone

Docket Nº:99-1168(L); 99-1169 (CON); 99-1170 (CON); 99-1171 (CON); 99-1209 (CON); 99-1221 (CON).
Citation:257 F.3d 210
Party Name:UNITED STATES OF AMERICA, Appellee, v. JOSEPH MONTELEONE, SR., also known as "Joe Monte", JOSEPH RUSSO, also known as "Jo Jo" and ANTHONY RUSSO, also known as "Chuckie", Defendants-Appellants.
Case Date:July 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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257 F.3d 210 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee,

v.

JOSEPH MONTELEONE, SR., also known as "Joe Monte", JOSEPH RUSSO, also known as "Jo Jo" and ANTHONY RUSSO, also known as "Chuckie", Defendants-Appellants.

Nos. 99-1168(L); 99-1169 (CON); 99-1170 (CON); 99-1171 (CON); 99-1209 (CON); 99-1221 (CON).

United States Court of Appeals, Second Circuit

July 20, 2001

Argued: March 5, 2001.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Sifton, District Judge), denying appellants' motion for a new trial.

AFFIRMED.

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CECIL C. SCOTT, Esq., Assistant United States Attorney, (Loretta E. Lynch, United States Attorney for the Eastern District of New York, New York, Patricia Notopolous, Assistant United States Attorney, on the brief) Brooklyn, N.Y., for Appellee.

VIVIAN SHEVITZ, Esq., South Salem, N.Y., for Defendant-Appellant Joseph Monteleone, Sr.

HERALD PRICE FAHRINGER, Esq., Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, (Erica

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T. Dubno, on the brief) New York, N.Y., for Defendant-Appellant Joseph Russo.

ALAN S. FUTERFAS, Esq., New York, N.Y., for Defendant-Appellant Anthony Russo.

Before: WALKER, Chief Judge, OAKES and CALABRESI, Circuit Judges.

JOHN M. WALKER, JR. Chief Judge:

Joseph Russo, Anthony Russo, and Joseph Monteleone, Sr., appeal from judgments entered March 22, 1999 in the United States District Court for the Eastern District of New York (Charles P. Sifton, District Judge) convicting them, after a jury trial, of racketeering and racketeering conspiracy in violation of 18 U.S.C. §§ 1962(c) and (d); murder and conspiracy to commit murder in furtherance of racketeering in violation of 18 U.S.C. § 1959; conspiracy to make extortionate extensions and collections of credit in violation of 18 U.S.C. §§ 892 and 894; and using and carrying firearms in furthering these crimes in violation of 18 U.S.C. § 924(c). Each defendant was sentenced principally to life imprisonment on each of the racketeering and substantive murder charges and nine years for the murder conspiracy. The Russos were each sentenced to twenty years' imprisonment for the loansharking conspiracy. All of the foregoing prison terms were concurrent, to be followed by consecutive five-year terms for the weapons offenses.

This case has been before this court in a prior incarnation. See United States v. Orena, 145 F.3d 551 (2d Cir. 1998) (reversing the grant of a new trial and reinstating the defendants' convictions on the basis that the government non-disclosures were not material in light of substantial other evidence of guilt), rev'g, United States v. Persico, CR-92-0351, 1997 WL 867788 (E.D.N.Y. Mar. 13, 1997). The defendants now appeal directly from both their judgments of conviction and from the district court's March 18, 1999 Memorandum and Order denying their second Rule 33 motion for a new trial. We affirm the defendants' convictions and the denial of a new trial.

BACKGROUND

In our earlier opinion we recounted much of the factual background pertinent to the instant appeal, as follows:

This case arises from the deadly internal war within the Colombo Organized Crime Family of La Cosa Nostra (the "Colombo Family") that began in 1991 when the Colombo Family split into two opposing factions one loyal to the incarcerated "official" boss of the family, Carmine Persico, Jr., and the other loyal to the appointed acting boss, Victor J. Orena....

On May 13, 1993, a fifteen count superseding indictment was returned against... Joseph P. Russo, Anthony Russo, and Joseph Monteleone, Sr. -- and co defendants Alphonse Persico, Joseph Tomasello, Theodore Persico, Sr., Richard Fusco, Robert Zambardi, Lawrence Fiorenza, Lawrence Mazza, and James Delmastro.

...

The Trial Evidence

The government's evidence at trial came primarily in the form of testimony from four accomplice witnesses Lawrence Mazza, Carmine Sessa, Joseph Ambrosino (all members of the Persico faction), and Salvatore Micciota (a member of the Orena faction) and revealed the following:

Joseph and Anthony Russo were captains in the Colombo Family, and in 1992, after the intra family war commenced, Joseph Russo was named acting

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underboss within the Persico faction; Monteleone was a member of the Russos' crew. After an unsuccessful attempt by Persico loyalists to kill Victor Orena in June 1991 inflamed tensions within the Colombo Family, Sessa attended a meeting that included the Russos, Monteleone, and others, during which the Russos told Sessa that they would call in their men and tell them to prepare for war with the Orena faction. Miciotta, at the time a member of the Russos' crew, testified that he was called to a meeting by the Russos at which the Russos told him and other members of the crew about the intra family war, and to ready themselves for it. Following the meeting, Monteleone told Miciotta "that this was an opportunity for all of us to elevate our stature in the family."

A truce organized by representatives of the other organized crime families of La Cosa Nostra broke down in November 1991 when members of the Orena faction attempted to kill Gregory Scarpa, Sr., a soldier in the Persico faction. Mazza testified that immediately after the attempted murder of Scarpa he went with Scarpa to see Anthony Russo, and after being informed of the attempt on Scarpa's life, Anthony Russo said that he would contact Sessa, Joseph Russo and others to let them know that "the shooting started." A meeting was then held at Joseph Russo's grandmother's house in Brooklyn, at which the Persico captains decided to retaliate. Ambrosino testified that Anthony Russo assured him that they were ready to attack the Orena side. He also testified that, sometime after this meeting, Joseph Russo and Theodore Persico told him [Ambrosino] that they, Anthony Russo, and others had attempted to kill Benny Aloi, an Orena captain, but had "just missed." According to Mazza and Sessa, Monteleone participated in a murder attempt on a different member of the Orena faction, Louis Malpeso, which was also unsuccessful.

During the early months of 1992, the Russos attended several meetings of Persico faction members to monitor the progress of the war. Sessa and Scarpa repeatedly complained that Scarpa and his crew were the only ones who had actually succeeded in killing any Orena faction members, and that they were unfairly shouldering the burden for all the others. The Russos provided assurances that their associates "were out every day looking for people," particularly those former members of the Russos' crew who had switched allegiances to the Orena side, including John Minerva. On March 25, 1992, John Minerva was killed outside a cafe he owned on Long Island. Michael Imbergamo, who apparently had been providing security for Minerva following an earlier attempt on Minerva's life two weeks prior to his murder, was killed along with Minerva. Eyewitness testimony and telephone records placed Monteleone, in an agitated state,... at a bar and a delicatessen less than two blocks away from Minerva's cafe shortly before Minerva's murder.

Soon after the Minerva/Imbergamo murders, the Russos and other members of the Persico faction, including Scarpa, met at Wolf's Delicatessen in Manhattan. Mazza testified that during this meeting, the Russos admitted their involvement in these murders, bragging that "they had been working on getting [Minerva]" and "finally got to him in front of his cafe," and that they were particularly satisfied because Minerva had worked for Joseph Russo's father for many years before deciding to ally himself with Orena.

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Unlike Mazza, Sessa testified that he first learned of the Russos' involvement in the murders not from the Russos themselves but from Scarpa. Soon after the murders, and after learning from Scarpa about the Russos' involvement, Sessa attended a meeting of Persico faction members (including Monteleone) at a New York diner. When he entered the meeting Sessa approached Joseph Russo and congratulated him for his "nice work," and Russo accepted the congratulations. Although Minerva's name was not mentioned, Sessa testified that he believed the reason for the congratulations the killing of Minerva was well understood by Russo. Sessa thereafter heard from another member of the Persico faction of the Colombo Family either Joseph Tomasello or Theodore Persico that Monteleone and another member of the Russos' crew, Tommy Gioeli, as well as a member of Theodore Persico's crew, had committed the Minerva/Imbergamo murders. Sessa, in turn, told Ambrosino that the Russos' crew was responsible for the murders.

The case presented by defendants-appell[ants]1 consisted largely of efforts to discredit the accomplice witnesses, and to portray the cycle of violence that erupted in 1991 as purely a personal vendetta on the part of Scarpa, perpetrated with the aid of Sessa. Defendants... claimed that there was no factional war within the Colombo Family, but merely a "Scarpa/Sessa war." They argued that the attempted murder of Scarpa could be explained by the fact that Scarpa was widely believed to be a government informant, and that, in turn, Scarpa had purely personal motives for murdering his victims to prevent them from revealing that he was an informant and to retaliate against them for the attempt on Scarpa's life. More generally, defendants... tried to portray Scarpa as "a loose cannon," and "argued to the jury that Scarpa was not a person to be trusted and was in fact an informant." Additionally, the Russos pointed to "the lack of hard evidence to link them to the Minerva and Imbergamo homicides," and challenged Mazza's testimony about the Russos' statements at the Wolf's Delicatessen meeting as uncorroborated and unreliable. Id. Monteleone, whose initial line of defense appeared to be that he could not be placed near the murder scene at...

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