U.S. v. Russo, Docket No. 99-1481(L).
| Decision Date | 22 August 2002 |
| Docket Number | Docket No. 99-1481(L).,Docket No. 99-1502. |
| Citation | 302 F.3d 37 |
| Parties | UNITED STATES of America, Appellee, v. Andrew RUSSO and Dennis C. Hickey, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Herald Price Fahringer, (Erica T. Dubno on the brief), Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, New York, NY, for Appellant Russo.
John W. Mitchell, New York, NY, for Appellant Hickey.
Daniel S. Dorsky, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney, Eastern District of New York, for Appellee.
Before LEVAL, STRAUB and KATZMANN, Circuit Judges.
Defendants Andrew Russo and Dennis C. Hickey appeal from judgments of the United Stated District Court for the Eastern District of New York (David G. Trager, J.) convicting them, after a jury trial, on charges of witness tampering, obstruction of justice, and hindering an investigation by the Federal Bureau of Investigation (FBI), in violation of 18 U.S.C. §§ 1503 and 1512(b)(3). These charges related to an FBI investigation into efforts to tamper with a juror in violation of the court's order in a prior trial involving the defendant Russo's son, Joseph Russo. (Hereinafter "Russo," without first name, refers to the defendant Andrew Russo.) We affirm.
In early 1994, Russo's son, Joseph, and four others were tried before Judge Charles P. Sifton in the Eastern District of New York on charges of racketeering, murder, and related offenses. The defendants were alleged to be members of the Colombo crime family. The case was known colloquially as the Persico case, based on the name of the leader of the Colombo family at the time, Carmine Persico. Pursuant to Judge Sifton's order, the identities of the jurors for the Persico trial were kept secret. Judge Sifton's order, issued on February 4, 1994, provided in pertinent part:
The selection of jurors will be made anonymously, that is, without identification of the names or addresses of the jurors or the jurors' employers. The parties, their agents, servants, employees, and all persons in active concert or participation with any of them, who receive actual notice of this order by personal service or otherwise, are directed (1) not to contact or attempt to determine the name, address or identity of any juror without prior leave of this Court and (2) to communicate the contents of this order to any person to whom the contents of any questionnaire is disseminated.
During the trial of the Persico case, one of the alternate jurors recognized a spectator, apparently a friend of the defendant Joseph Russo, as Teresa Castranova, with whom the juror had attended elementary school. The alternate juror informed Judge Sifton of her recognition of the spectator; the court did not inform either the government or the defense of the juror's revelation.
Before deliberations began, the alternate jurors were discharged. On April 20, 1994, Joseph Russo and the other defendants were found guilty by the jury. Judge Sifton then discharged the remaining jurors.
In late April or early May 1994, Nicholas Vasile, a private investigator, contacted the mother of the alternate juror. Vasile told her that her daughter had been recognized by someone with whom she had gone to school, and asked to speak with the daughter. He left his business card. The mother refused to provide Vasile with her daughter's address. Upon being informed of these events by her mother, the juror contacted Judge Sifton, who referred the matter to the United States Attorney for investigation.
An agent from the FBI was assigned to investigate the case, and a grand jury was convened. The FBI agent contacted Vasile, who admitted approaching the juror's mother; he claimed he had obtained the juror's name from a man he did not know. The grand jury issued a subpoena for Teresa Castranova's testimony. The assigned FBI agent searched for Castranova for a year, from May 1994 until May 1995, but was unable to find her. The Government subsequently obtained evidence that Defendants Russo and Hickey had arranged to keep Castranova in hiding while the FBI was looking for her.
Eventually, the present indictment was filed. Andrew Russo was charged in Counts One and Two with obstruction of justice and conspiracy to obstruct justice by participating in efforts to contact the juror in violation of the court's order. 18 U.S.C. §§ 1503, 1512. Counts Three and Four charged both Russo and Hickey with obstruction of justice, in that they caused "Janet Doe" (being Theresa Castranova) to evade the grand jury subpoena, and hindering a government investigation by preventing the communication to law enforcement officers of information relating to the possible commission of a criminal offense, consisting of the efforts to contact the juror in contravention of the court's order.
Prior to trial, the government gave notice that it intended to introduce evidence of the defendants' respective roles in the Colombo family. The defendants moved to preclude this evidence. At a hearing on the matter, the court carefully questioned the government as to the relevance of this evidence. The government argued that without evidence of the defendants' organized crime membership, it would be impossible for the jury to understand their motivations or the conduct of certain government witnesses. The court denied the defendants' motion, stating that it was "reasonably satisfied the government cannot try this case in a credible way without the reference to organized crime." The defendants themselves ultimately introduced a great deal of evidence on organized crime in an effort to discredit the government's witnesses.
The government's case at trial was based largely on the testimony of Russo's mistress, Dorothy Fiorenza, and a Colombo family associate, Mario Parlagreco, who had been incarcerated with both Andrew and Joseph Russo. In addition, the government introduced voluminous transcripts of recorded prison conversations between Andrew Russo, Joseph Russo, and Hickey; letters between Castranova and Joseph and Andrew Russo, and videotape evidence of Andrew Russo and Castranova.
The evidence, briefly summarized, showed that Castranova had been hidden for over a year on a horse farm on Long Island owned by Hickey in order to avoid the FBI subpoena, and that both Russo and Hickey were involved in the plan to keep her concealed from the FBI. For example, when Russo's probation officer paid a surprise visit to the horse farm, Castranova hid under a bed, and Russo helped ensure that she would not be seen. When Castranova's young son asked in the presence of the probation officer where his mother was, Russo falsely told the probation officer that the boy was his nephew. To keep Castranova content during her isolated concealment, Russo provided her with vehicles, while Hickey gave her money and sent new appliances to the farm for her. Russo told Castranova to choose a cover name, and she began using the name "Laurie." She also changed her hair color from blonde to brown. Fiorenza testified that Castranova had told her that the contingency plan, if anything went wrong, was to meet at the Marriott Hotel. When Castranova wanted to visit Joseph Russo, Andrew Russo told her she could not. According to Fiorenza, In addition, Fiorenza, who visited Joseph Russo in jail at Andrew Russo's request and passed messages between father and son, testified that when she reported to Andrew Russo that his son had said there would be trouble because of Hickey, Russo responded "[t]here's a lot of heat out here, [Hickey's] helping us."
The government also presented evidence that Andrew Russo had knowledge of Judge Sifton's order not to contact the jurors. Although Andrew was incarcerated on other charges during Joseph's trial, he communicated regularly with Joseph about the case. Andrew planned the strategy for Joseph's defense; Joseph's attorney was not permitted to make any legal decisions without Andrew's approval. Andrew Russo kept transcripts from the Persico trial on Hickey's farm, including the transcript containing Judge Sifton's order prohibiting contact with the jurors. An address book belonging to Andrew had the investigator Vasile's name written on the first page in capital letters, underlined, with Vasile's home phone number. Another of Russo's address books, which was found at Hickey's home, also had Vasile's name and home telephone number written in it. Other evidence supporting the obstruction of justice charges was Fiorenza's testimony that Castranova told her that she had recognized one of the jurors and that a man had been sent to contact the juror. Fiorenza also testified that she passed messages from Joseph Russo to Andrew Russo such as "what is going on with this Dick Tracy," or "ask my father what's going on with this Nick V." Andrew Russo responded, via Fiorenza, "tell him forget it, forget it ... there's too much heat."
In accordance with Judge Trager's denial of the defendants' motion to preclude, the government introduced evidence of the defendants' roles in the Colombo family. Fiorenza testified that Andrew Russo told her that "they" were making him a boss. Parlagreco identified Andrew Russo as a member of the "Colombo gang," and testified that he was "told that [Andrew Russo] was a captain." In addition, Parlagreco testified that Joseph Russo had told him that "Dennis Hickey was with him and his father," that Andrew Russo had told him that "Hickey was with him," and that he overheard Joseph Russo telling a captain of the Lucchese family that "Hickey is over here, with us." Parlagreco explained that to be "with" a...
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