U.S. v. Friedman, Docket No. 98-1398(L).
| Decision Date | 06 August 2002 |
| Docket Number | Docket No. 98-1425.,Docket No. 98-1435.,Docket No. 98-1398(L). |
| Citation | 300 F.3d 111 |
| Parties | UNITED STATES of America, Appellee, v. Gary FRIEDMAN, Carlos Rodriguez, a/k/a Carlos Diaz, and Kenneth Friedman, a/k/a Keith Delellis, a/k/a Anthony Stewart, a/k/a Tony Russo, a/k/a Anthony Zito, Defendant-Appellants, Ruben Hernandez, a/k/a Junior, Charles Sanchez and Juan Galindo, a/k/a Puppet, a/k/a Anthony Ochoa, a/k/a Jason Boodran, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Emily Berger, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, of counsel; Alan Vinegrad, United States Attorney, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee.
Margaret E. Alverson, New York, NY, for Defendant-Appellant Gary Friedman.
Gary Schoer, Syosset, NY, for Defendant-Appellant Kenneth Friedman.
Michael S. Washor (Gail E. Laser, Nicholas Pinto, on the brief), New York, NY, for Defendant-Appellant Carlos Rodriguez.
Before CALABRESI and CABRANES, Circuit Judges, and PRESKA, District Judge.*
We consider here the convictions of Gary Friedman, an attorney who engaged in a wide variety of criminal conduct in the early and mid 1990s, including drug dealing, robbery, and extortion; Kenneth Friedman, Gary's brother, who assisted Gary in carrying out many of his crimes; and Carlos Rodriguez, a former client of Gary Friedman, who was convicted of participating in two of Gary's extortion schemes. The judgments of conviction were entered on July 10, 1998 (Kenneth Friedman) and July 27, 1998 (Gary Friedman and Rodriguez), after a jury trial in the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge). Amended judgments of conviction, modifying appellants' sentences, were entered on August 20, 1998 (Kenneth Friedman), October 18, 2000 (Gary Friedman), and November 16, 2000 (Rodriguez).
When appellants' trial began, they stood charged in a twenty-three count superseding indictment as follows:
• Counts 1-4 charged Gary Friedman with participating in two separate conspiracies to distribute and possess with intent to distribute marijuana (in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(vii)) and with two instances of possession with intent to distribute marijuana (in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D));
• Count 5 charged Gary Friedman with possession of stolen art (in violation of 18 U.S.C. § 2315);
• Counts 6 and 7 charged Gary and Kenneth Friedman with conspiracy to extort Mark Levinas and Robert Marshall (in violation of 18 U.S.C. § 1951) and weapons possession in connection with that crime (in violation of 18 U.S.C. § 924(c)(1));
• Counts 8-10 charged Kenneth Friedman with conspiracy to commit extortion by collection of an unlawful debt (in violation of 18 U.S.C. § 894(a)(1)), interstate travel in aid of racketeering ("ITAR") (in violation of 18 U.S.C. § 1952(a)(2)), and weapons possession in connection with those crimes (in violation of 18 U.S.C. § 924(c)(1)), all related to the kidnaping of Anthony Buttitta in Florida;
• Counts 11-13 charged Kenneth Friedman with conspiracy to commit robbery (in violation of the Hobbs Act, 18 U.S.C. § 1951), travel in interstate commerce with the intent to commit a crime of violence (in violation of 18 U.S.C. § 1952(a)(2)), and weapons possession in relation to these crimes (in violation of 18 U.S.C. § 924(c)(1)), all related to an attempted robbery of D.J. Shiel, a drug dealer in Florida who Buttitta had identified as a potential robbery target;
• Counts 14-18 charged all three appellants with conspiracy to commit extortion (in violation of the Hobbs Act, 18 U.S.C. § 1951), attempted extortion (in violation of 18 U.S.C. § 1951), interstate travel in aid of racketeering (in violation of 18 U.S.C. § 1952(a)(2)), use of an interstate facility in aid of racketeering (in violation of 18 U.S.C. § 1952(a)(2)), and weapons possession in connection with these crimes (in violation of 18 U.S.C. § 924(c)(1)), all related to an alleged plot to extort Peter Kovach, which plot resulted in the deaths of Kovach and Ted Gould (the "California crimes");
• Counts 19-23 charged all three appellants with conspiracy to use extortionate means to collect and attempt to collect an extension of credit ("loan-sharking") (in violation of 18 U.S.C. § 894(a)(1)), substantive counts of loan-sharking (in violation of 18 U.S.C. § 894(a)(1)), and weapons possession in connection with loan-sharking (in violation of 18 U.S.C. § 924(c)(1)); Gary Friedman and Rodriguez were also charged with attempted loan-sharking (in violation of 18 U.S.C. § 894(a)(1)) and Rodriguez was charged with weapons possession in connection with that crime (in violation of 18 U.S.C. § 924(c)(1)), all related to the extortion of Bruce Wolosky.
Before the case was submitted to the jury, the District Court dismissed Counts 3 (possession with intent to distribute marijuana), 11-13, and 21 (). The jury acquitted Gary Friedman of Counts 2 (possession with intent to distribute marijuana), 4 (conspiracy to distribute and possess with intent to distribute marijuana), and 20 (loan-sharking), and it acquitted Kenneth Friedman of Counts 19 and 20 (conspiracy to commit loan-sharking and loan-sharking). The appellants were convicted of all of the remaining charges. The District Court sentenced Gary Friedman to an aggregate term of imprisonment for life plus 300 months, Kenneth Friedman to aggregate term of imprisonment for life plus 540 months, and Carlos Rodriguez to an aggregate term of imprisonment for 468 months.
On appeal, the Friedmans argue that evidence obtained as a result of a traffic stop should have been suppressed; that tape recordings of conversations between them over a jailhouse telephone should have been suppressed; that the Government failed to show an interstate nexus on the Hobbs Act counts; that the Government failed to establish venue for Gary's conviction for possession of stolen art; and that their sentences violated the teachings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Rodriguez challenges the sufficiency of the evidence with respect to his convictions for involvement in the California crimes.1 He also argues that certain hearsay testimony should not have been admitted and that the prosecutor's improper statements during closing arguments deprived him of a fair trial with respect to those charges.
Most of appellants' claims do not warrant extended discussion and are disposed of by a summary order entered simultaneously with this opinion. We write here only to address (1) the Friedmans' claim that tape recordings of conversations between them over a jailhouse telephone should have been suppressed; (2) Rodriguez's challenges to his convictions for involvement in the California crimes; and (3) the Friedmans' Apprendi claims.
We hold that (1) the notice received by Kenneth Friedman that telephone calls from the Torrence County Jail were monitored and recorded was sufficient to support a finding that the recordings of his calls introduced at trial fell within the "ordinary course" exception to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510 et seq., and, thus, were not obtained in violation of Title III; (2) Kenneth and Gary Friedman had no reasonable expectation of privacy in Kenneth's calls to Gary from the Torrance County Jail; (3) Carlos Rodriguez's convictions related to the California crimes were not supported by sufficient evidence that he knew the specific nature of the conspiracy or underlying crime; (4) because the fact of a victim's death resulting from an ITAR "crime of violence" may be used to impose a sentence greater than the otherwise-applicable statutory maximum, under Apprendi, a victim's death is an element of the offense that must be charged in the indictment and proved to a jury beyond a reasonable doubt; and (5) in this case, the failure to charge the jury with the issue of whether the deaths of Kovach and Gould were caused by the Friedmans' extortion of them was harmless. Accordingly, we reverse Rodriguez's convictions on Counts 14, 15, 16, 17, and 18, and otherwise affirm the judgments of the District Court.
We set forth only those facts necessary to decide the claims addressed in this opinion, and we view the evidence in the light most favorable to the Government. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Gary Friedman was an attorney who practiced in New York. The evidence at trial showed that, in 1991, Friedman began committing crimes, including robbery, extortion, kidnapping, and drug dealing. Friedman's primary associate in committing these crimes was his brother, Kenneth. Howard Bloomgarden was a nightclub owner and a friend of Gary Friedman.
From 1992-1993, Bloomgarden sold marijuana in Miami. His supplier was Jorge Aguilar, a dealer based in California. Aguilar would obtain the marijuana in California and ship it to Bloomgarden in Florida by Federal Express. As shipments became larger and more frequent, Bloomgarden enlisted the help of his friend, Peter Kovach, who traveled to California and began arranging for shipments to travel by courier. Bloomgarden also expanded his marijuana trafficking to New York, where his longtime friend, Gary Friedman, led the operation.
In April 1993, a shipment of approximately 800 pounds of marijuana sent from California by Kovach was intercepted and seized by the authorities in Illinois en route to Florida. Kovach used the seizure as an opportunity to break free from Bloomgarden: he arranged a meeting with Aguilar and Jeff Tobin, a major...
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