U.S. v. Merlino

• Citation: 349 F.3d 144
• Decision Date: 12 November 2003
• Docket Number: No. 01-4374.,No. 01-4436.,No. 01-4441.,No. 01-4392.,No. 01-4453.,No. 01-4375.,No. 01-4394.,01-4374.,01-4375.,01-4392.,01-4394.,01-4436.,01-4441.,01-4453.
• Parties: UNITED STATES of America v. Joseph MERLINO a/k/a Skinny Joey Joseph Merlino, Appellant United States of America v. Steven Mazzone, Appellant United States of America v. Frank Gambino, Appellant United States of America v. Martin Angelina, United States of America v. John Ciancaglini, Appellant United States of America v. Angelo Lutz, Appellant United States of America v. George Borgesi, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

349 F.3d 144

UNITED STATES of America v. Joseph MERLINO a/k/a Skinny Joey Joseph Merlino, Appellant United States of America v. Steven Mazzone, Appellant United States of America v. Frank Gambino, Appellant United States of America v. Martin Angelina, United States of America v. John Ciancaglini, Appellant United States of America v. Angelo Lutz, Appellant United States of America v. George Borgesi, Appellant.

No. 01-4374.

No. 01-4375.

No. 01-4392.

No. 01-4394.

No. 01-4436.

No. 01-4441.

No. 01-4453.

United States Court of Appeals, Third Circuit.

Argued: June 2, 2003.

Filed November 12, 2003.

COPYRIGHT MATERIAL OMITTED

Edwin J. Jacobs, Jr., Joseph A. Levin, Jacobs & Barbone, Atlantic City, NJ, for Appellant Joseph Merlino.

Stephen P. Patrizio (Argued), Dranoff & Patrizio, Philadelphia, PA, for Appellant, Steven Mazzone.

John J. Fioravanti, Jr., Fioravanti & Knight, Doylestown, PA, for Appellant, Frank Gambino.

Jack J. McMahon, Jr., Philadelphia, PA, for Appellant Martin Angelina.

F. Emmett Fitzpatrick, Jr. (Argued), F. Emmett Fitzpatrick Law Offices, Philadelphia, PA, for Appellant John Ciancaglini.

Christopher D. Warren (Argued), Philadelphia, PA, for Appellant Angelo Lutz.

Peter Goldberger (Argued), Law Office of Peter Goldberger Ardmore, PA, for Appellant George Borgesi.

David E. Fritchey, (Argued) Barry Gross, Zane D. Memeger, Steven D'Aguanno, Assistant U.S. Attorney Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before: BARRY, FUENTES, and ROSENN, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

I. INTRODUCTION

Beginning in June of 1999, a federal grand jury in the Eastern District of Pennsylvania returned a series of indictments culminating in January 2001 in the thirty-six count fourth superceding indictment on which the seven defendants who had not already pled guilty went to trial in March of 2001. In broad summary, the defendants were charged with Racketeer Influenced and Corrupt Organization (RICO) conspiracy and a RICO substantive count, with the Philadelphia La Cosa Nostra ("LCN") family alleged to be "The Enterprise." Murder and conspiracy to murder, violent crime in aid of racketeering, extortion and conspiracy to extort, the operation of illegal sports bookmaking businesses, and thefts of goods in interstate commerce were among the thirty-six racketeering acts and thirty-six counts charged.

On July 20, 2001, four months to the day on which trial commenced, all of the seven defendants were convicted of at least some of the charged offenses, including RICO and RICO conspiracy. However, all of the charges, be they racketeering acts or substantive counts, alleging anything to do with murder or violent crimes in aid of racketeering and many of the numerous extortion racketeering acts and counts were found by the jury to be wanting and resulted in findings of "not proven" or acquittals. The government, and there is no way to sugar-coat it, lost the heart of its case.

In December of 2001, the seven defendants were sentenced to terms of imprisonment ranging from 71 months to 168 months. They now appeal, raising pretrial trial, and sentencing issues that, because of the permutations and combinations specific to each of the defendants, total approximately thirty.

We will not address each of the issues raised but, rather, will focus on those issues which we believe particularly warrant discussion. Suffice it to say, however, that whether addressed or unaddressed, we have carefully considered each issue and, aside from one count and a sentencing enhancement as to one defendant, we will affirm the judgments of conviction and sentence.

II.

We begin with some brief procedural background. Joseph Merlino was the sole defendant named on June 30, 1999 in the initial two count indictment that charged him with drug offenses. On December 15, 1999, the first superceding indictment was returned, adding Frank Gambino, Ralph Abbruzzi, Steven Frangipani, and Anthony Accardo as defendants, and expanding the charges against Merlino. The second superceding indictment, returned on March 30, 2000, substantially expanded the charges to approximately what they were when trial commenced, and added as defendants Steven Mazzone, George Borgesi, Martin Angelina, John Ciancaglini, Angelo Lutz, and Stephen Sharkey. The third superceding indictment, returned on October 11, 2000, made only minor changes, and the fourth superceding indictment, returned on January 24, 2001, essentially only deleted defendants Abbruzzi and Frangipani, who had earlier pled guilty to one count. The fourth superceding indictment, which hereinafter we will refer to as "the indictment," thus named nine defendants. Defendants Accardo and Sharkey entered pleas of guilty shortly before trial, also to one count, and trial commenced on March 20, 2001 against the remaining seven defendants, Messrs. Merlino, Mazzone, Gambino, Angelina, Ciancaglini, Lutz and Borgesi.

The 111 page indictment identifies defendants Merlino, Mazzone, Borgesi, Angelina, Ciancaglini, and Gambino as "made" members of the Philadelphia LCN family — "The Enterprise" — and Lutz and the four defendants who pled guilty as "associates" in the family, a family, it was alleged, that has been in "substantially continuous operation for a number of decades." The structure, hierarchy, and manner in which the enterprise operated was set forth in the indictment in detail that would be familiar to any viewer of "The Sopranos" or "The Godfather," including the priority of the sons of "made" members, the ritual initiation ceremonies, and the penalty of death for violating the "Code of Silence" — "Omerta" — with nicknames of co-conspirators such as "Horsehead," "Snitch," and "Pete the Crumb" sprinkled throughout. The indictment described defendant Merlino as having risen through the ranks to be Acting Boss, defendant Mazzone to be Acting Underboss, and defendant Borgesi to be Acting Consigliere.

The thrust of the indictment, and there can be no mistake about it, was violence, be it actual, threatened, or otherwise intended. Count One, the RICO conspiracy count, listed, as noted, thirty-six racketeering acts ("RA's"). The first five, together with RA8, charged defendants Mazzone, Borgesi, Angelina, Ciancaglini, and Gambino with one or more of the following: conspiracy to murder John Stanfa; attempted murder of John Ciancaglini, Jr.; murder and conspiracy to murder William Veasey; murder and conspiracy to murder Joseph Sodano; murder and conspiracy to murder Anthony Turra; and the attempted murder of Anthony Milicia. Defendant Merlino was charged in all of these racketeering acts. Thereafter, the indictment listed racketeering acts alleging extortion — conspiracy to extort "street tax" and protection money (RA6); extortion of Anthony Milicia and Louis Procaccini (RA7); Hobbs Act extortion and extortion of a bookmaking business under Pennsylvania law (RA's 9-24); and extortionate collection of credit and conspiracy to collect an extortionate collection of credit (RA28). Bringing up the rear, so to speak, were allegations of illegal sports bookmaking (RA's 25-27); receipt, possession, and sale of a stolen Lamborghini (RA29); receipt of, respectively, stolen Sony TV sets, electric ceiling fans, women's sweatsuits, baby formula, and bicycles (RA's 30-34); and, as against Merlino, the conspiracy to distribute cocaine and use of a communication facility to further that conspiracy charged in the initial indictment (RA's 35-36). Count Two charged a RICO substantive offense, and the remaining thirty-four counts of the indictment largely tracked the racketeering acts described above. We will, of course, parse the counts as necessary to do so in the discussion which follows.

Given what was charged, and the strong emphasis at trial on the violent offenses (including the promised or feared violence by which extortion can, of course, be defined), it was not an overstatement to say, as we said at the outset, that, for whatever reason, the government lost "the heart of its case." Thus, Merlino was convicted only of Counts One and Two (the RICO conspiracy and RICO substantive counts, respectively), Count Three (collection of an unlawful debt), Count Twenty-Three (illegal gambling business); Counts Thirty, Thirty-Two, and Thirty-Three (receipt of stolen ceiling fans, baby formula, and bicycles); and Count Thirty-Four (conspiracy to receive stolen goods). The only racketeering acts found "proven" as to him were RA6 (conspiracy to extort "street tax" and protection money); RA25 (illegal sports bookmaking); and RA's 31-34 (receipt of the stolen fans, sweat suits, baby formula, and bicycles). Stated somewhat differently, as to defendant Merlino, the jury found "not proven" all of the RA's alleging murder, conspiracy to murder, attempted murder, and extortion, and acquitted on all of the concomitant substantive counts with which he was charged.

Each of the other defendants was also convicted on Counts One and Two. Defendant Mazzone was found guilty as well of Count Twenty-Four (illegal sports bookmaking), and only RA6 (conspiracy to extort "street tax" and protection money), RA7 (extortion of Anthony Milicia and Louis Procaccini) and RA26 (illegal sports bookmaking) were found to be "proven." Defendant Borgesi did not fare quite as well, being convicted also of Counts Three and Four (collection of an unlawful debt); Counts Sixteen, Twenty, and Twenty-Two (Hobbs Act extortion), although he was acquitted of the bulk of the extortion counts; and Counts Twenty-Three, Twenty-Four, and Twenty-Five (illegal sports bookmaking). The jury also found that RA6 (conspiracy to extort), RA's 18, 20, 21, 22, and 24 (extortion), and RA's 25, 26, and 27 (illegal sports bookmaking) were "proven."

Angelina was also found guilty of Count Eight (Hobbs Acts conspiracy), Nine through Thirteen (Hobbs Act extortion), Twenty-Four (illegal sports bookmaking) and Twenty-Eight (receipt, possession, and...