U.S. v. Gotti
| Citation | 459 F.3d 296 |
| Decision Date | 12 July 2006 |
| Docket Number | Docket No. 04-5071-CR(CON).,Docket No. 04-4217-CR(CON) 04-4842-CR(CON).,Docket No. 06-0726-CR(CON).,Docket No. 04-2746-CR(L) 04-2960-CR(XAP). |
| Parties | UNITED STATES of America, Appellee-Cross-Appellant, v. Peter GOTTI, Defendant-Appellant-Cross-Appellee, Anthony Ciccone, also known as Sonny, Richard Bondi, Richard G. Gotti, Defendants-Appellants, Primo Cassarino, Jerome Brancato, Peter Piacenti, Anna Eylenkrig, Thomas Lisi, Carmine Malara, Jerome Orsino, Frank Scollo, Vincent Nasso, Anthony Pansini, Jules R. Nasso, Salvatore Cannata, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Katya Jestin, David M. Bitkower, Assistant United States Attorneys, Brooklyn, NY, for Roslynn R. Mauskopf, United States Attorney, Eastern District of New York (David C. James, Assistant United States Attorney, Daniel Silver, Special Assistant United States Attorney, of counsel) for the United States of America.
Joseph A. Bondy, Law Offices of Joseph A. Bondy, New York, NY, for Defendant-Appellant-Cross-Appellee Peter Gotti.
Robert A. Culp, New York, NY, George L. Santangelo, Law Office of George L. Santangelo, New York, NY, for Defendant-Appellant Anthony Ciccone.
Richard Medina, New York, NY, for Defendant-Appellant Richard Bondi.
Harry C. Batchelder, New York, NY, for Defendant-Appellant Richard G. Gotti (on submission).
Before FEINBERG and KATZMANN, Circuit Judges, and LYNCH, District Judge.*
This case raises an issue of first impression for this Court: the scope of the Supreme Court's holding in Scheidler v. National Org. for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) ("Scheidler II"),1 in which the Supreme Court tightened the requirements for finding that a defendant has committed extortion under the Hobbs Act, 18 U.S.C. § 1951. On appeal, the defendants-appellants—Peter Gotti, Richard G. Gotti, Anthony ("Sonny") Ciccone, and Richard Bondi—argue that Scheidler II invalidates all of the Hobbs Act counts in this case that were premised on the extortion of intangible property rights. We hold, however, that Scheidler II did not invalidate the challenged extortion counts at issue in this case, because Scheidler II—far from holding that a Hobbs Act extortion could not be premised on the extortion of intangible property rights—simply clarified that for Hobbs Act liability to attach, there must be a showing that the defendant did not merely seek to deprive the victim of the property right in question, but also sought to obtain that right for himself. That standard, which can be satisfied regardless of whether the property right at issue is tangible or intangible, has been met by each of the Hobbs Act counts at issue here. We also reject the numerous other challenges brought by the defendants-appellants to their convictions. Finally, with regard to the defendants-appellants' sentences, we remand Ciccone's and Bondi's cases for resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir.2005), and we remand Peter Gotti's case for consideration of resentencing pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005).2 We also reject the argument advanced in the government's cross-appeal that the district court erred when, in sentencing Peter Gotti under the then-mandatory Sentencing Guidelines, it declined to impose a four-level leadership role enhancement upon him despite its finding that he had served as acting boss of the Gambino Organized Crime Family of La Cosa Nostra (the "Gambino Family").
The 68-count indictment in this case centered on the corrupt influence of the Gambino Family over certain labor unions, businesses, and individuals operating at the piers in Brooklyn and Staten Island. The indictment was brought against seventeen Gambino Family members and associates, including the four defendants-appellants here: (1) Peter Gotti, described in the indictment as the acting boss of the Gambino Family; (2) Ciccone, described as a Gambino Family captain; (3) Richard G. Gotti, described as a "made member" of the Gambino Family; and (4) Bondi, described as a Gambino Family associate.3 The four defendants-appellants all went to trial, along with three other defendants (Primo Cassarino, Richard V. Gotti, and Jerome Brancato, all of whom were described as "made members" of the Gambino Family), while the remaining ten defendants entered guilty pleas.4
The first two counts of the indictment were racketeering and racketeering conspiracy counts brought under 18 U.S.C. §§ 1962(c) and (d). These two counts encompassed, as predicate acts, the substantive allegations that were then also set forth as separate offenses in Counts 3-68.
For purposes of this appeal, the counts of which the defendants-appellants were ultimately convicted can be divided, on the basis of general subject matter, into fourteen categories. Those categories are as follows: (1) the International Longshoremen's Association, AFL-CIO ("ILA") Counts (RICO Predicate Act 1; Counts 3-7); (2) the Management-International Longshoremen's Association Managed Health Care Trust Fund ("MILA") Counts (RICO Predicate Act 2; Counts 8-13); (3) the Local 1 Checkers chapter of the ILA ("Local 1") Counts (RICO Predicate Act 3; Counts 14-18); (4) the Local 1814 chapter of the ILA ("Local 1814") Counts (RICO Predicate Act 4; Counts 19-23); (5) the Howland Hook Container Terminal ("Howland Hook") Counts (RICO Predicate Act 5; Counts 24-25); (6) the Frank Molfetta ("Molfetta") Counts (RICO Predicate Act 6; Counts 26-27); (7) the Money Laundering Counts (RICO Predicate Acts 7-21; Counts 28-46); (8) the Tommy Ragucci ("Ragucci") Counts (RICO Predicate Act 23; Counts 49-50); (9) the Leonardo Zinna ("Zinna") Count (RICO Predicate Act 24; Count 51); (10) the Nicola Marinelli ("Marinelli") Counts (RICO Predicate Act 25; Counts 52-53); (11) the Eduard Alayev ("Alayev") Counts (RICO Predicate Act 26; Counts 54-57); (12) the Steven Seagal ("Seagal") Counts (RICO Predicate Act 27; Counts 58-59); (13) the Gambling Counts (RICO Predicate Acts 31-32; Counts 66-67) and (14) the Witness Tampering Count (RICO Predicate Act 33; Count 68).
Below, we summarize—in the light most favorable to the government, given the defendants-appellants' convictions—the evidence adduced at trial as to each category of counts with respect to the applicable defendants-appellants.
The gravamen of the ILA Counts, Indictment ¶¶ 98-109, was that certain members and associates of the Gambino Family, including defendant-appellant Ciccone, had exercised control over the affairs of the union, first by using force to determine "who filled various International Executive Officer and other ILA positions" in order to "ensure that organized crime associates would be placed in these positions," and then by directing the activities of those office-holders. Id. ¶ 100. These activities gave rise to counts of both extortion and fraud.
With regard to extortion, the indictment alleged that the defendants had wrongfully obtained the following property of ILA union members: "(1) ILA labor union positions, money paid as wages and employee benefits, and other economic benefits that such ILA union members would have obtained but for the defendants' corrupt influence over such union; (2) the right of ILA union members to free speech and democratic participation in the affairs of their labor organization as guaranteed by [Sections 411 and 481 of the Labor-Management Reporting Disclosure Act (`LMRDA'), 29 U.S.C. § 401 et seq.]; and (3) the right of ILA union members to have the officers, agents, delegates, employees and other representatives of their labor organization manage the money, property and financial affairs of the organization in accordance with [Section 501(a) of the LMRDA]." Id. ¶ 99.
As to fraud, the indictment stated that the defendants had defrauded the ILA and its members out of (1) "ILA labor union positions, money paid as wages and employee benefits, and other economic benefits that such ILA union members would have obtained but for the defendants' corrupt influence over such union" and (2) their right to the honest services of their elected officials and other ILA delegates, employees, agents, and representatives. Id. ¶ 104.
At trial, the government adduced substantial evidence in support of the ILA charges. George Barone—a member of the Genovese Organized Crime Family of La Cosa Nostra (the "Genovese Family")—testified that there had been a long-held understanding between the Gambino Family and the Genovese Family concerning the ILA's activities, whereby the Gambino Family "would take care of Staten Island and Brooklyn" and the Genovese Family "would take care of New York and New Jersey." Trial Tr. ("Tr.") 721-22, 727. Barone stated that in the late 1970s, Ciccone became the Gambino representative in charge of the waterfront for Staten Island and Brooklyn, and served as a vice president of the ILA, with the local ILA union officials essentially under his control. Tr. 735-37. Barone himself went to jail from 1983 to 1990, and after being released from jail, again became involved in the Genovese Family's waterfront activities. Tr. 739, 743. At that point, Barone learned that Ciccone was still controlling the waterfront activities in the area, and still possessed influence over the ILA local union officials' activities. Tr. 755.
Additionally, Frank Scollo—former president of Local 1814, an ILA chapter in Brooklyn—testified that "Mr. Ciccone would tell me on many occasions what to do, what not to do." Tr. 1337, 1341-42. Scollo explained that he feared losing his job as president if he contradicted Ciccone's orders. Tr. 1371. He stated his predecessor, Frank Lonardo, had similarly taken instructions from Ciccone. Tr. 1362-63....
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