U.S. v. Irizarry
| Decision Date | 25 August 2003 |
| Docket Number | No. 01-4484.,01-4484. |
| Citation | 341 F.3d 273 |
| Parties | UNITED STATES of America v. Elvis IRIZARRY, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Roy B. Greenman, (Argued), Budin, Greenman & Greenman, Union, NJ, for Appellant.
Christopher J. Christie, United States Attorney, George S. Leone, Chief, Appeals Division, Ricardo Solano, Jr., (Argued), Assistant United States Attorney, Newark, NJ, for Appellee.
Before: BECKER, Chief Judge,* SCIRICA** and McKEE, Circuit Judges.
Elvis Irizarry appeals his convictions for violating, and conspiring to violate, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d), a drug offense, and several other substantive offenses. His major complaint is that the government improperly joined and tried separate and unrelated crimes and conspiracies he allegedly committed with several individuals over the course of many years. We will affirm the convictions for the reasons set forth below.
Viewed in a light most favorable to the government, the trial evidence showed that Irizarry was a central member of a criminal group that operated out of Jersey City, New Jersey for more than seven years. Irizarry's principal job was carrying out the group's criminal activities, including inter alia, murder, arson, armed robbery, drug trafficking, and the extortionate collection of debts. Franco Durso was Irizarry's boss. Durso told Irizarry what to do "if anything needed to be done so far as... persuad[ing] people to do things, to get something done." App. at 3163. As the boss, Durso had the final say over Irizarry's and the group's activities. For, example, when John McGuinness came to Irizarry with a proposal to rob a check-cashing supermarket in Paterson, New Jersey, Irizarry told McGuiness that he "had to clear it with Franco [Durso] before [McGuiness] could talk to [Irizarry]." App. at 3169.
Irizarry carried out the group's criminal activities through a group of associates that included, among others, Michael Soto, Raymond Looney, Joseph Sammartino, Lee Farrell and Samier Bakhoury (the "crew"). These five individuals formed the core membership of Irizarry's crew although others were associated with it from time to time.
Durso "ran the show" for Massimo Ranieri in Jersey City, and Durso and Irizarry both answered to Ranieri. App. at 3168. Ranieri was next in line to take control of a group that was the Sicilian wing of the notorious Gambino crime family. Ranieri was based in Brooklyn, New York, but also spent time in Florida. Ranieri's criminal activities included debt collection, extortion and murder.
Durso paid a weekly "tribute to Ranieri in the amount of $500 to $600." App. at 3198-99. McGuiness testified that a "tribute" is with regard to "disputes and stuff." Id. For example, McGuiness once approached Durso because "Timmy," a man McGuinness knew, had been "stiffed" on a bet "with some bookmaker in New York." App. at 3201-02. Durso brought McGuiness and Timmy to Brooklyn to meet Ranieri. Ranieri spoke to Timmy alone and "[a] few days later [Timmy] got his money." App. at 3203.
Loansharking was one of the principal ways the group generated income. Durso loaned his own money, as well as money belonging to others including McGuiness, Anthony Rotolo, (also known as "Tony the Guinea)," and Rocco Errico. If Durso was not repaid, Irizarry was sent to collect. Between 1993 and 2000, Irizarry took various crew members — including, Farrell, Looney, Sammartino and Soto — with him on collection rounds in order to have "extra bodies" that would "intimidate people." App. at 2766. When problems arose, Irizarry and the crew would resort to violence. For example, Looney testified about one occasion in early 1996, in which Irizarry confronted John Yengo at Carmine's Bar. Yengo owed money to several people, including Durso, but he was not making payments. Irizarry went into the bathroom to "talk" to Yengo while Looney remained outside. Looney stated he "heard a commotion" coming from the bathroom. App. at 2989. When Looney went inside the bathroom to check, he saw Irizarry and Yengo "scuffling" and saw Irizarry hit Yengo over the head with a hammer. App. at 2989-90. According to Looney, Irizarry then proceeded to "beat[] [Yengo's] ass." Id. Yengo then "immediately [took some money] ... out of his pocket and handed" it to Irizarry. App. at 2990. According to Looney, Yengo tried to explain that he came to Carmine's "to talk to Franco [Durso] to tell him he needed time to pay." Id.
A similar incident involved someone known as "Farice," or "The Fisherman." Farice owed approximately $20,000 to Durso, approximately $30,000 to an individual named "Michael Scurti" and he owed an unknown amount to Rotolo. At some point, Farice received a settlement check and used some of the proceeds to pay Scurti, but not Durso. When Durso learned that Scurti had been favored he told Irizarry, "Let's go down and straighten it the f[_] out." App. at 2992. A week later, Irizarry entered the Italian American Club that was across the street from Durso's pizzeria and returned with a "bloodied up" Scurti. App. at 2992093. Irizarry later told Looney that Scurti "got his ass beat" and he was "going to have to pay that money." App. at 2993.
On another occasion, Looney recalled accompanying Irizarry to a gas station in Fort Lee, New Jersey to make a collection. On the way, Irizarry asked Looney if he would have a problem killing the man who owed the money if he did not pay. Looney assured Irizarry he would do whatever it would "take to get this over with," App. at 2993. However, this incident did not result in anyone being killed.
On yet another occasion, Durso approached McGuiness for information about a pizzeria supplier who owed Durso money, and McGuiness informed Durso of the supplier's schedule. Irizarry arrived at a local pizzeria on the date scheduled for that supplier's deliveries and gave him "a little shot in the head." App. at 3192-94. Although McGuiness did not see the attack, he saw Irizarry go into the pizzeria, and thereafter saw the supplier App. at 3194.
The crew also generated income by trafficking in illegal drugs. From as early as 1991 or 1992, Durso sold cocaine out of his pizzeria and out of two bars in Jersey City — "Carmine's" and "Martucci's". McCloskey assisted Durso's drug trafficking by "cutting" cocaine for Durso, preparing it for resale, and occasionally selling it. Durso sometimes gave McCloskey funds to purchase drugs, and the two referred to themselves as "partners."
Irizarry's role in the trafficking scheme consisted of traveling to New York to purchase cocaine and then transporting it back to Jersey City. Irizarry used crew members Sammartino, Soto, Bakhoury, Farrell and Looney to help transport drugs as early as 1993. The routine was generally the same. One or more crew members drove to New York City with Irizarry. There, Irizarry purchased drugs either at a "bodega" or a Cuban sandwich shop. They would then return together to Jersey City and deliver the cocaine to Durso or McCloskey. On occasion, Irizarry made the crew member transport the cocaine back to New Jersey by train while he drove back alone by car.
Although Irizarry controlled the actual transportation of the cocaine, Durso had ultimate control of the operation. A 1996 episode illustrates the relative authority of the two confederates. Sometime early that year, Irizarry wanted Bakhoury to take over his role in the drug operation while he, Irizarry, was in Italy. However, Durso refused to allow Bakhoury to do so because Bakhoury smoked marijuana, and Durso apparently thought that Bakhoury could not be trusted.
In early 1994, Irizarry hand picked members of his crew for an armed robbery of an armored truck that delivered money to and from the Kingsbrook Jewish Medical Center in Brooklyn, New York. The robbery scheme apparently resulted from a "tip" Irizarry had received from associates in New York with an "inside connection." App. at 2739, 2119. The robbery afforded Irizarry an opportunity "to build a reputation for himself," and he stated that it would also be a good thing for the "old man," i.e., Ranieri. App. at 1467.
Irizarry, Sammartino, Farrell and Bean had several discussions about the details of the robbery, and Durso and Irizarry eventually arranged for a car that would provide the necessary transportation. However, after members of the crew "cased" the hospital, Farrell became concerned over "how dangerous [the scheme] was" and informed Durso of his concerns. App. at 2747-48. The robbery was called off, but Irizarry later told Farrell the robbery was important to him (Irizarry) and that the planners were fortunate they were still alive.
Around the same time in early 1996, Irizarry discussed a number of robberies with other confederates including Soto and Looney. The discussions included robbing a supermarket that cashed checks in Paterson, New Jersey, and a check cashing business in Hoboken, New Jersey. McGuiness targeted both these businesses for the group, but he had to get Durso's permission before discussing the robberies with Irizarry's crew. On each occasion, Irizarry's crew went as far as "casing" the businesses even though they did not actually commit the robberies. The Paterson robbery was called off because Irizarry and another crew member were arrested on the day the robbery was to occur after police officers stopped Irizarry's car and discovered a bulletproof vest and a can of mace.
In 1996, Russell Laviola informed Durso that he was having difficulty collecting rent...
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