26 F.3d 297 (2nd Cir. 1994), 1049, United States v. Minicone

Docket Nº:1049, Docket 93-1594.
Citation:26 F.3d 297
Party Name:UNITED STATES of America, Appellant, v. Jack J. MINICONE, Jr., also known as Jake, Defendant-Appellee, Jack Zogby, also known as Turk; Anthony J. Inserra; Benedetto Carcone, also known as Benny; Russell E. Carcone, Defendants.
Case Date:June 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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26 F.3d 297 (2nd Cir. 1994)

UNITED STATES of America, Appellant,

v.

Jack J. MINICONE, Jr., also known as Jake, Defendant-Appellee,

Jack Zogby, also known as Turk; Anthony J. Inserra;

Benedetto Carcone, also known as Benny; Russell

E. Carcone, Defendants.

No. 1049, Docket 93-1594.

United States Court of Appeals, Second Circuit

June 7, 1994

Argued March 10, 1994.

Page 298

Deborah Watson, U.S. Dept. of Justice, Washington, DC (Gary L. Sharpe, U.S. Atty. N.D.N.Y., Kevin E. McCormack, Asst. U.S. Atty., Syracuse, NY, of counsel), for appellant.

John A. Cirando, Syracuse, NY (Emil M. Rossi, Patrick J. Haber, Ivette Iza Zenner, Syracuse, NY, of counsel), for defendant-appellee.

Before: LUMBARD, FEINBERG and MINER, Circuit Judges.

MINER, Circuit Judge:

The Government appeals from a judgment entered on July 23, 1993 in the United States District Court for the Northern District of New York (Munson, J.), after a second remand, sentencing defendant-appellee Jack Minicone to a 379-month term of imprisonment on his January 1991 conviction for conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c), and conspiring to conduct and participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d). The relevant conduct bearing on the sentence included the 1976 murder of one Al Marrone. According to the sentencing guidelines, Minicone should have been sentenced to a 480-month term of imprisonment. The district court's downward departure was based on a combination of Minicone's minor role in the Marrone murder and the misconduct of the murder victim.

For the reasons that follow, we vacate the sentence imposed by the district court and remand the case with instructions that the district court impose the statutory maximum prison term of 480 months.

BACKGROUND

This appeal provides us with the opportunity to write the third and final chapter in what has become the four-year sentencing saga of Jack Minicone. Because the extensive factual background of this case is set forth in our two previous opinions, United States v. Minicone, 960 F.2d 1099 (2d Cir.) ("Minicone I "), cert. denied, --- U.S. ----, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992) and United States v. Minicone, 994 F.2d 86 (2d Cir.1993) ("Minicone II "), familiarity with which is presumed, we recite only those facts relevant to the disposition of this appeal.

Following a jury trial in the United States District Court for the Northern District of New York, Minicone was convicted in January of 1991 of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c) (Count One), and of conspiring to conduct and participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d) (Count Two). These convictions were based on evidence at trial that Minicone and co-defendants Jack Zogby, Anthony Inserra, Benedetto Carcone, and Russell Carcone were involved in a wide-spread criminal enterprise, centered in Utica, NY, that spanned the period between the years 1973 and 1989 and included extortion, loansharking, illegal gambling, trafficking in stolen property and murder.

Among the activities in which Minicone was implicated was the 1976 murder of Al Marrone. Minicone, Zogby, and Inserra planned to kill Marrone shortly after his release from prison because he had threatened to kill them and their co-conspirator, Anthony Falange, and also because they feared that Marrone planned to take over their territory. The three began plotting the murder six months in advance. They interviewed several hitmen and ultimately hired Edward Noel to assist in the murder. Minicone, Zogby, Inserra and co-conspirator Dennis Pritchard met with Noel early in the fall of 1976 to plan the murder. On the night of October 2, 1976, while Minicone and Inserra kept their distance and monitored a police

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scanner, Noel, Zogby and another man shot and killed Marrone on the sidewalk in front of his girlfriend's home.

Minicone also was involved in the attempted murder in 1983 of Thomas Bretti. Minicone had been assigned to kill Bretti and attempted to do so by planting a bomb on the front steps of Bretti's home. Bretti was seriously and permanently injured when the bomb...

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