U.S. v. Orena

• Citation: 32 F.3d 704
• Decision Date: 15 August 1994
• Docket Number: 1182,D,Nos. 702,s. 702
• Parties: UNITED STATES of America, Appellee, v. Victor J. ORENA, also known as Little Vic, Defendant-Appellant. ockets 93-1397, 93-1697.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 704

32 F.3d 704

UNITED STATES of America, Appellee, v. Victor J. ORENA, also known as Little Vic, Defendant-Appellant.

Nos. 702, 1182, Dockets 93-1397, 93-1697.

United States Court of Appeals, Second Circuit.

Argued May 20, 1994.

Decided Aug. 15, 1994.

Michael E. Tigar, Austin, TX (Gustave H. Newman, Andrew J. Frisch, Newman & Schwartz, New York City, of counsel), for defendant-appellant.

John Gleeson, Asst. U.S. Atty. E.D.N.Y. (Zachary W. Carter, U.S. Atty. E.D.N.Y., David C. James, Asst. U.S. Atty. E.D.N.Y., Brooklyn, NY, of counsel), for appellee.

Before: MESKILL, MINER, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Victor J. Orena appeals from a judgment of conviction entered May 26, 1993 in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, after a jury found Orena guilty of: racketeering in violation of 18 U.S.C. Sec. 1962(c); ¹ racketeering conspiracy in violation of 18 U.S.C. Sec. 1962(d); conspiracy to murder Thomas Ocera in violation of 18 U.S.C. Sec. 1959(a)(5) and New York Penal Law Secs. 125.25 and 105.15; the murder of Thomas Ocera in violation of 18 U.S.C. Secs. 1959(a)(1) and 2 and New York Penal Law Secs. 125.25 and 20.00; conspiracy to murder members of the Persico faction of the Colombo family in violation of 18 U.S.C. Sec. 1959(a)(5) and N.Y.Penal Law Secs. 125.25 and 105.15; conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. Sec. 892; conspiracy to make extortionate collections of credit in violation of 18 U.S.C. Sec. 894; use and carrying of a firearm in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1); and unlawful possession of firearms by a convicted felon in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(2). 821 F.Supp. 870. On this appeal, Orena raises a multitude of challenges to his conviction and sentence. For the reasons that follow, we reject Orena's arguments for reversal and affirm the conviction. We also affirm the district court's denial of Orena's motion for a new trial pursuant to Fed.R.Crim.P. 33.

Background

The charges in this case arise primarily from an internal war between opposing factions of the Colombo Family of the Cosa Nostra (the "Colombo Family") which has resulted in a number of criminal prosecutions in the Eastern District of New York. See, e.g., United States v. Brady, 26 F.3d 282 (2d Cir.1994); United States v. Amato, 15 F.3d 230 (2d Cir.1994) (affirming conviction of defendant initially charged in same indictment as Orena but separately tried).

The Cosa Nostra, also known as the Mafia, includes five New York families, the Bonnano, Colombo, Gambino, Genovese, and Lucchese families, each headed by a boss. The ultimate governing body of La Cosa Nostra is a Commission that superintends the activities of the five New York families and affiliated families in other cities. See United States v. Salerno, 868 F.2d 524, 528 (2d Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989).

Substantial evidence at trial established that after Colombo family boss Carmine Persico was incarcerated for a lengthy term in 1986 and a committee that was appointed to govern the Colombo Family proved unworkable, the Commission appointed Orena as the acting boss of the Colombo Family on Persico's recommendation. There was testimony that this occurred in approximately December 1988, and alternatively, that it occurred in late 1989 or early 1990.

In any event, there was considerable evidence that Orena thereafter aspired to become the official, rather than the acting, boss of the Colombo family, displacing Persico. Persico, in turn, indicated his intention to replace Orena with Persico's son, Alphonse Persico, who was scheduled for release from imprisonment in June 1993. This resulted in conflict between Orena and Persico factions of the Colombo Family in 1991 and 1992, including a number of assassinations and attempted assassinations.

Evidence was also presented concerning Orena's role in the murder of Colombo Family captain Thomas Ocera, which occurred on or about November 13, 1989. In October 1991, Michael Maffatore, a Colombo Family associate who had helped to bury Ocera's body, offered to cooperate with the F.B.I. He led F.B.I. agents to Ocera's grave site, where Ocera's body was unearthed with a metal wire still wrapped around his neck. After several months of investigation, Orena was arrested on April 1, 1992.

At trial, the government offered the testimony of Maffatore and Harry Bonfiglio, who also assisted in Ocera's burial, regarding Ocera's murder. Several other members of the Cosa Nostra testified about the racketeering and loansharking activities of Orena and the Colombo Family, and about Orena's various murder conspiracies. Of particular relevance on this appeal is the testimony of: (1) Joseph Ambrosino, a Colombo Family associate; (2) Alfonso D'Arco, a former acting boss of the Lucchese Family; (3) Salvatore Gravano, former under-boss of the Gambino Family and a government witness in several organized crime cases; and (4) Diane Montesano, Ocera's girlfriend at the time of his murder. The prosecution also introduced into evidence wiretap recordings relating principally to the racketeering and murder charges, as well as loansharking records seized from Ocera's restaurant and from an apartment used by two Orena faction associates. In addition, the district court admitted into evidence numerous firearms seized at the home of Orena's girlfriend, at which he was residing at the time of his arrest, including guns and ammunition hidden under a wooden deck in the back yard of the residence, as well as, inter alia, approximately $60,000 in cash, a bulletproof vest, three beepers, and three mobile telephones. Firearms and related apparatus seized from other Colombo Family members and associates were also presented in evidence.

The jury convicted Orena on all counts. The district court sentenced Orena concurrently to life imprisonment for racketeering, life imprisonment for racketeering conspiracy, life imprisonment for Ocera's murder, ten years on each murder conspiracy count twenty years on each loansharking count, and ten years for unlawful possession of a firearm by a convicted felon; and to a consecutive five-year sentence for the use and carrying of a firearm in relation to a crime of violence. Finally, the court fined Orena $2.25 million ($250,000 for each count), ordered Orena to pay the costs of his own imprisonment at a rate of $1,492 per month, and imposed special assessments in the amount of $450.

Orena appealed his conviction, and subsequently moved in the district court for a new trial under Fed.R.Crim.P. 33. The motion was based upon Gravano's alleged perjury and alleged prosecutorial misconduct in connection with Gravano's and Montesano's testimony. The district court denied the motion. Orena appealed that denial, and the appeal was consolidated with the prior appeal of his conviction. We address both appeals in this opinion.

Discussion

On appeal, Orena presents the following arguments for reversal: (1) those counts of the indictment that depend upon the existence of a RICO "enterprise" fail to state a claim because the schism in the Colombo Family (the charged enterprise) that was alleged in the indictment and proved at trial precludes satisfaction of this statutory requirement; (2) the evidence was insufficient to sustain the substantive and conspiracy RICO convictions; (3) because there was no continuing RICO enterprise, the testimony of Persico loyalists regarding Orena's racketeering activity was improperly admitted as coconspirator testimony; (4) the indictment failed to allege an overt act as part of the murder conspiracy charges, as required by New York law, and therefore is fatally defective; (5) the count that charged a conspiracy to murder members of the Persico faction is also invalid because it failed to name all of the intended victims of that conspiracy; (6) the murder conspiracy and murder charges must be dismissed because they failed to specify the types of homicide that Orena committed or conspired to commit; (7) the district court improperly admitted into evidence certain of the firearms seized from the house in which Orena was arrested, as well as firearms and related apparatus seized from other Colombo Family members and associates, without adequate authentication; (8) the district court improperly admitted the records retrieved from Ocera's restaurant and from an apartment used by Orena faction associates as loansharking records without adequate authentication; (9) the district court improperly excluded evidence that the government presented a conflicting theory of Ocera's death at another trial; (10) Judge Weinstein improperly fined Orena and required him to pay the costs of his incarceration; and (11) the government condoned perjury by Gravano, and improperly failed to disclose relevant evidence regarding the testimony of Gravano and Montesano, as a result of which Orena's motion for a new trial should have been granted. We address each issue below.

A. The RICO Enterprise.

1. The Sufficiency of the Enterprise Charge in the Indictment.

The indictment in this case alleged at the outset that: "The members and associates of the Colombo Organized Crime Family of La Cosa Nostra ('the Colombo family') constituted an 'enterprise,' as that term is described in Title 18, United States Code, Sections 1961(4) and 1959(b)(2), that is, a group of individuals associated in fact." The indictment goes on, however, to detail the internecine warfare in which factions of the Colombo family engaged during 1991 and 1992. Orena contends, in effect, that the indictment was thereby rendered schizophrenic, with the result that all the counts of the indictment that depend upon the existence of a RICO enterprise ² failed to state an offense.

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