U.S. v. Desena
| Decision Date | 09 April 2002 |
| Docket Number | Docket No. 00-1808.,Docket No. 01-1027. |
| Parties | UNITED STATES of America, Appellee, v. Michael DESENA, aka Richie Bigfoot, Kevin Kiernan, aka Sideways, Orlando R. Placido, aka Ripcord, Richard Recchion, aka Ricky Magic, Robert Desautels, aka Bobby D, Thomas Vandiver, aka Tommy Trucker, aka Trucker, Louis Candelaria, aka B.C. Rock, William Sharpe, aka Tattoo Billy, Anthony Romeo, aka Eclipse, aka Fat Tony, Steven Deflorio, aka Sarge, Kirk Peters, Jay A. Clancy, aka One-Eye Jay, aka One-Eye, Gabriel Giordano, aka Gary, Christopher Socci, aka Hop Sing, Salvatore Figliolia, aka Stone Cold, aka Sal, Peter A. Mihalitsianos, aka Smooth, Anthony Dibiase, aka Tony the Wig, Evan Rosenthal, aka Rain, Nicholas Ragni, aka Mood, Robert J. Bauer, aka Bluto, Phillip Pepe, aka Philly, Michael Connors, aka Bam-Bam, Jorge Duquen, aka Kathleen M. Hawk, Joseph Serrano, aka Panhead Joe, Paul Borrero, aka Apache, Patrick Torres, aka Taco, Bryan Walton, aka Pogo, Halpin Scott, aka Holeshot, John Kolakowski, aka Loudmouth, Ralph Rubino, Douglas Jay Estep, aka Fat Boy, Defendants, Anthony Lambros, aka Tony Intense, and Thomas La Duca, aka Tom-Tom, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
John H. Jacobs, New York, N.Y. (Elizabeth E. Macedonio, Law Office of John H. Jacobs, New York, New York, of counsel), for Appellant, Lambros.
Valerie S. Amsterdam, New York, N.Y. (Amsterdam & Branden, New York, New York, of counsel), for Appellant, Laduca.
Gary R. Brown, Assistant United States Attorney, Brooklyn, N.Y. (Alan Vinegrad, United States Attorney, Jo Ann M. Navickas, Leonard Lato, Assistant United States Attorneys, Eastern District of New York, Brooklyn, NY, of counsel), for Appellee.
Before FEINBERG, CARDAMONE, and SOTOMAYOR, Circuit Judges.
This appeal brings before us two of 33 co-defendants charged in a lengthy indictment with involvement in a large scale national criminal enterprise. According to the government, the Pagan Outlaw Motorcycle Club (Pagans), of which defendants are members, engaged not only in legitimate activity, but also "a broad array of racketeering activity" that involved various crimes of violence. For 50 years the Pagans have been engaged in a "turf" war with the rival Hell's Angels motorcycle club, which reportedly continues to this day. See Elissa Gootman, Biker Attack Is Called Clash Over L.I. Turf, N.Y. Times, Feb. 25, 2002, at B1. The charges in this case stem in part from the Pagans' efforts to keep the Hell's Angels out of Long Island, New York. As the record makes clear, the sounds of the skirmishes in this gang war are not the roar of cannon, but rather, for these violent outlaws, the squeal of rubber on concrete, the whine of a motorcycle's exhaust, and the report of random shots heard echoing in the wake of their departure from the scene.
Defendants Anthony Lambros and Thomas Laduca are two of only four Pagan defendants to have gone to trial on the criminal charges against them. They appeal from judgments of conviction entered November 13, 2000 and December 19, 2000, respectively, in the United States District Court for the Eastern District of New York (Hurley, J.). Although defendants were charged within the same indictment, the issues before us arise out of different criminal incidents. Accordingly, we discuss separately the facts underlying their appeals.
Lambros was found guilty of four counts of committing violent crimes in aid of racketeering activity. Two counts consisted of charges of assault with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(3) (1994), and the other two counts charged conspiracy to assault with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(6).
Only one count is pertinent to this appeal — the conspiracy charge pertaining to assaults on members of the Hell's Angels. Lambros asserted an entrapment defense, claiming that law enforcement officials — and Detective Jack Kennedy in particular — fed misinformation to biker groups to encourage tension between them. Kennedy was a member of the local police Biker Task Force who allegedly spent much time in surveillance of the Pagans. Lambros asserts Kennedy came to know each Pagan by name and would report to them what harms were caused them by the Hell's Angels. The Pagans would then be incited to seek revenge. Lambros argues that without such information, no conspiracy against the Hell's Angels would have developed.
To establish this defense, Lambros planned to call Kennedy as a witness. Kennedy had been in the courtroom from time to time during the trial. Yet while the prosecution agreed to produce him without a subpoena, he failed to appear the day he was to testify. Appellant insists his Sixth Amendment right to compulsory process was denied, as well as his Fifth Amendment () right to due process.
Although the jury convicted Laduca on 13 counts, the district court overturned the convictions on two counts. Laduca challenges three of the remaining counts on this appeal for insufficient evidence. These counts relate to separate events, each of which is chronicled below.
At trial the government produced an eyewitness, Evan "Rain" Rosenthal, a former Pagan who testified that he and Laduca spent an evening in September 1997 following a group of Hell's Angels. Laduca was charged with committing a violent crime in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(6) (1994), and using or carrying a firearm in connection with that violent crime in violation of 18 U.S.C. § 924(c) (1994), for the events of that evening. According to Rosenthal, their immediate goal was to avenge injuries sustained by Gabriel "Gary" Giordano, a fellow Pagan said to have been shot by a Hell's Angel.
Rosenthal testified that he drove around town while Laduca was armed with a 9 millimeter handgun. They spotted a group of six to eight Hell's Angels on motorcycles. Laduca loaded his gun and directed Rosenthal to follow them, saying he wanted to shoot one of the Hell's Angels and especially to "get" the prospect who had shot Giordano. They followed the group to a gas station and parked nearby. Although Laduca pointed his gun out the open car window, Rosenthal explained that no shooting occurred because the Hell's Angels pulled out from an exit on the other side of the station and did not drive by Rosenthal and Laduca. Rosenthal and Laduca later contacted two other Pagans, Orlando "Ripcord" Placido and Keith "Conan" Richter, who joined them in their pursuit. Richter was also armed. After following the Hell's Angels to several bars, Laduca again rolled down the passenger window of Rosenthal's vehicle and pointed his gun, but a vehicle came between them and his target. After nine hours of this hunt, Richter called the mission off for the night.
Giordano also testified for the prosecution and corroborated Rosenthal's testimony. While hospitalized for his injuries, Giordano was visited by Laduca, who allegedly told him that he, along with Rosenthal, Placido and Richter, had followed a group of Hell's Angels and tried to shoot one of them to avenge him. Appellant told Giordano he had not been successful because the police had been present at one point and at a later point a vehicle had blocked his view.
Another incident occurred earlier in October 1996, for which Laduca was charged under one count with using and carrying a firearm during a conspiracy to assault in violation of 18 U.S.C. § 924(c)(1), or aiding and abetting the use of weapons in such a conspiracy to assault, in violation of 18 U.S.C. § 2(a) (1994). The incident involved about 60-80 Pagans and Pagan affiliates who had gathered in the Catskills to assault members of the Cycle Lords, a group affiliated with the Hell's Angels. Three Pagans who were part of that mission — Rosenthal, Nicholas "Mood" Ragni, and Kirk "Kick" Peters — as well as Scott "Holeshot" Halpin, the president of the Tyrants Motorcycle Club (Tyrants), testified for the prosecution.
According to Halpin, whose group was affiliated with the Pagans, the Pagans were having "problems" with the Cycle Lords in the Catskills. To resolve the problems, the head of the Pagan's Catskills chapter, a man known as "Timmy," organized a raid on a bar where the president of the local Cycle Lords chapter was said to live. Forty or 50 Pagans and Tyrants, some with ax handles, knives and guns, took part in this raid. No Cycle Lords were found. Undaunted, Timmy scheduled a larger raid for the following weekend. This second raid is a subject of this appeal.
Nicholas Ragni, who at the time was the head or "diamond" of the Pagan East Suffolk chapter, confirmed that the Catskill Pagans were having trouble with the Cycle Lords and wanted to "put a scare into them." Although Ragni did not take part in the first raid, he testified that he and other Long Island Pagans were summoned to take part in the second one. Specifically, Ragni recounted how "[w]e were all informed to go up there with rifles, with guns, and that Timmy would take us to two bars where these people hang out, if we caught them we were to beat the [s___] out of them." Rosenthal and Peters, two of the rank-and-file Pagans in Ragni's chapter, testified that they were ordered by Ragni to go upstate on a "mandatory" run but were not given any details in advance. Peters further stated it was not uncommon for the Pagan leadership to withhold details of plans from the general membership.
Halpin reported that Laduca drove from Long Island to the Catskills with Douglas Jay "Fat Boy" Estep on the October weekend scheduled for the second hunt of Cycle Lords. When the pair...
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