U.S. v. Riggi
| Citation | 541 F.3d 94 |
| Decision Date | 04 September 2008 |
| Docket Number | Docket No. 06-2862-cr(con).,Docket No. 06-1280-cr(L).,Docket No. 06-2910-cr(con).,Docket No. 06-2683-cr(con).,Docket No. 06-2878-cr(con). |
| Parties | UNITED STATES of America, Appellee, v. Giovanni RIGGI, Michael Silvestri, Girolamo Palermo, also known as Jimmy Palermo, Defendants, Anthony Mannarino, also known as Anthony Marshmallow, Giuseppe Schifilliti, also known as Pino Schifilliti, Philip Abramo, Louis Consalvo, also known as johndoe8, also known as Louie Eggs, also known as Frank Scarabino, Stefano Vitabile, also known as Steve Vitabile, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Roland G. Riopelle, Sercarz & Riopelle, LLP, New York, NY, for Defendant-Appellant Guiseppe Schifilliti.
Inga L. Parsons, Law Offices of Inga L. Parsons, Marblehead, MA, for Defendant-Appellant Philip Abramo.
Sanford Talkin, Talkin, Muccigrosso & Roberts, LLP, New York, NY, for Defendant-Appellant Stefano Vitabile.
John M. Hillebrecht, Assistant United States Attorney (Miriam E. Rocah, Katherine Polk Failla, Assistant United States Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Before: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges.
Stefano Vitabile, Philip Abramo, and Giuseppe Schifilliti (collectively, "defendants") appeal from judgments of conviction, entered following a three-week jury trial in the United States District Court for the Southern District of New York (Mukasey, J.), on charges arising out of their involvement in the Decavalcante organized crime family. The charges include racketeering and racketeering conspiracy, murder and conspiracy to commit murder, conspiracy to commit extortion in the construction industry, conspiracy to make and to collect extortionate extensions of credit, and conspiracy to commit securities fraud. Defendants challenge their convictions on several grounds, of which we reach two: (i) that the admission of eight plea allocutions of non-testifying co-conspirators amounted to plain error under the intervening authority of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and (ii) that the evidence was insufficient to support the convictions on three counts. We find merit in the Crawford claim, vacate the judgments and remand the case for further proceedings.
These prosecutions arose out of a lengthy investigation into organized crime, culminating in the October 2000 arrests of more than twenty persons (including Vitabile, Abramo, and Schifilliti), and the filing of multiple indictments. The case against the three defendants here went to trial on a nine-count superseding indictment. Counts One and Two alleged racketeering and racketeering conspiracy under 18 U.S.C. § 1962(c) and (d). These two counts encompassed, as predicate acts, twelve substantive allegations, some of which were then also set forth as separate offenses in Counts Three through Nine. After a three-week trial held in Spring 2003, the jury found defendants guilty of the first two counts (including that the government had proven ten of the predicate acts), and, among them, five of the remaining substantive counts.
A. Trial
We summarize the facts in the light most favorable to the government, given the defendants' convictions. United States v. Mapp, 170 F.3d 328, 331 (2d Cir.1999). For the period relevant to the indictment, the Decavalcante organized crime family, like many mob families, was led by a "boss," aided by an "underboss" and a "counselor" or "consigliere." They supervised multiple crews of hoodlums, each led by a captain and manned by soldiers (who have been formally inducted as members of the family) and associates (non-members). The family was run by an "administration" made up of top leadership and the various captains.
Defendants are long-time members and leaders of the Decavalcante family. Vitabile served as consigliere for approximately 35 years; Abramo had been a captain since the late 1980s; Schifilliti had been a captain since 1991. At all relevant times, the three defendants were members of the family's administration. Vitabile was also a member of the "ruling panel," a group formed when a boss is imprisoned or otherwise incapacitated.
The government's evidence at trial included testimony from four cooperating witnesses, each of whom had known all three defendants for decades and had run the various rackets and served as enforcers side-by-side with them. They were (in descending order of rank in mob hierarchy): (1) Vincent Palermo (no relation to Girolamo Palermo, whose separate appeal is also decided today), a long-time captain who was a member of the family's ruling panel and became an acting boss at one point; (2) Anthony Rotondo, a captain; (3) Anthony Capo, a soldier; and (4) Victor DiChiara, an associate. Of these cooperating witnesses, at least one—and usually more than one—testified about defendants' involvement in each of the charged crimes.
The government also presented testimony from expert witnesses, law enforcement officers, and family members of some mob victims; surveillance photographs and video; tape-recorded conversations; documentary evidence; and the guilty plea allocutions of eight non-testifying co-conspirators. In order to assess the impact of the allocutions upon the convictions, and to assess sufficiency of evidence, it is necessary to summarize in some detail the evidence supporting each of the proven predicate acts and substantive counts. (The defendants named in the various charges are specified in parentheses.)
1. Conspiracy to murder and murder of Frederick Weiss (Abramo). Weiss, an associate of the Decavalcante Family, was a defendant (along with some members of the Gambino organized crime family) in a prosecution for illegal dumping of garbage. The Gambino family suspected Weiss of cooperating with the government, and asked the Decavalcante family to kill him. Tr. 193-94. Abramo attended a series of meetings in which the murder was planned. Tr. 200, 202-03, 973-74, 976-80, 985, 992-93, 2105, 2115. Abramo cased the area around Weiss's home (the proposed spot for the murder), reported back to then-boss John Riggi about the plan, and on the day of the murder, drove around the area with underboss John D'Amato in case back-up or a diversion would be needed. Tr. 979-80. Cooperating witness Palermo, who was assigned to shoot Weiss, testified that while he was waiting for Weiss to appear, he saw Abramo and D'Amato driving around the neighborhood. Tr. 2120. As Weiss walked from his house to his car parked in front, he was gunned down by Palermo and another family member. Tr. 222, 2121. When the shooters gave their report to Abramo and D'Amato, Tr. 2122, Abramo or D'Amato replied, Tr. 998. Later that day, Abramo and D'Amato met at a restaurant with Palermo and two other cooperating witnesses to congratulate them. Tr. 2123.
2. Conspiracy to murder and murder of Joseph Garofano (Abramo). Garofano was one of the participants in the Weiss hit. His fear that he might be arrested prompted concern in the Decavalcante family that he might cooperate with the government, Tr. 514-15, 996, 1017-18, 1021, so the family leadership decided to kill him too. Again, Abramo participated in planning meetings with other family members. Tr. 1017-18, 1020-22, 2128-32. Cooperating witness Rotondo testified about two meetings he attended with Abramo and D'Amato within a week of the Weiss murder. Tr. 1019, 1032. During those meetings, Abramo urged that Garofano be killed (because "he saw everybody that was there at the [Weiss] hit," Tr. 1021), assigned a soldier in his own crew to carry out the murder, Tr. 1023, and helped to devise and implement the plan by which the hit man would ambush his victim, Tr. 1032-36. On the day of the murder, Rotondo reported to Abramo and warned him to avoid being spotted by Garofano. Tr. 1036. Rotondo then drove Garofano to the site of the hit, and stood guard while Garofano was shot to death. Tr. 1039-40.
3. Conspiracy to murder Annunziata and Vastola (Abramo). Daniel Annunziata and Gaetano "Corky" Vastola, members of the Decavalcante family, were targeted for execution because: Annunziata had refused to allow the Weiss murder to take place at the construction site of his new home, Tr. 964, 980-87, 1052-58; and Vastola, Annunziata's brother-in-law, backed him up and also threatened to "go to war" with the Gambino family rather than kill Weiss at their request, Tr. 209. On one occasion, Abramo and D'Amato met with Annunziata and Vastola to try to get them to come around, and ordered Capo and Palermo to keep watch outside and kill Annunziata and Vastola if anything went wrong. Tr. 206.
Abramo and D'Amato subsequently ordered Capo and Palermo to kill Annunziata and Vastola, Tr. 204, 980-81, 2111, but the intended victims got away, Tr. 2112. Abramo attended several follow-up meetings, but the murders were never carried out. Tr. 1052-58. Ultimately, Annunziata and Vastola somehow made amends and were allowed back into the Decavalcante family. Tr. 1057-58.
4. Conspiracy to murder and murder of Louis LaRasso (Vitabile, Abramo, and Schifilliti). LaRasso was a Decavalcante captain who was deemed a threat to boss John Riggi (who was then in jail) and acting boss John D'Amato. Tr. 124, 322-23, 1066-68. At a mid-1991 meeting that included all three defendants, the family administration voted to kill LaRasso. Tr. 325-36, 1069-74, 2355, 2359. The plan was for Schifilliti to lure LaRasso to meeting at the home of one of Schifilliti's soldiers. Members of Abramo's crew would kill him there, dispose of his body, and leave his car at the airport. Tr. 326-27, 1074-76, 2359-61.
Mrs. LaRasso testified that her husband went missing on November 11, 1991. Tr. 2669-71. LaRasso's car was found at the...
To continue reading
Request your trial
-
Wood v. Ercole, Docket No. 09–2905–pr.
...... See United States v. Riggi, 541 F.3d 94, 105 (2d Cir.2008) (noting “jury's reluctance” to rely on “cooperating witness ...But it is not for us to decide whether we think that we would have voted to convict. The question, rather, is whether ......
-
United States v. Richter
......5 First, they ask us to reverse their convictions for smuggling because the jury instruction ...Smith's testimony. See United States v. Riggi, 541 F.3d 94, 104 (2d Cir.2008) (the presumption in favor of limiting ......
-
U.S. v. Hassan, Docket No. 05-6949-cr.
...... (indeed, as we will explain, as charged in this case, cathinone specifically)—that persuades us that the statute governing khat is constitutional as applied to Hassan. . ... See United States v. Riggi, 541 F.3d 94, 108 (2d Cir.2008). We conclude that the trial evidence was sufficient to support a ......
-
U.S.A v. Sessa
...Accordingly, the evidence presented at trial was sufficient to support petitioner's loansharking convictions. See United States v. Riggi, 541 F.3d 94, 109-10 (2d Cir. 2008) (noting that a cooperating witnesses' statements that, inter alia, delinquent loanshark customers would "wind[ ] up wi......