543 F.3d 25 (2nd Cir. 2008), 06-3280, United States v. Eppolito

Docket Nº:06-3280(L), 06-3396(CON).
Citation:543 F.3d 25
Party Name:UNITED STATES of America, Appellant, v. Louis EPPOLITO and Stephen Caracappa, Defendants-Appellees.
Case Date:September 17, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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543 F.3d 25 (2nd Cir. 2008)

UNITED STATES of America, Appellant,

v.

Louis EPPOLITO and Stephen Caracappa, Defendants-Appellees.

Nos. 06-3280(L), 06-3396(CON).

United States Court of Appeals, Second Circuit.

September 17, 2008

Argued: Oct. 18, 2007.

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Mitra Hormozi, Assistant United States Attorney, Brooklyn, N.Y. (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Barbara D. Underwood, Counsel to the United States Attorney, David C. James, Robert W. Henoch, Daniel Wenner, Assistant United States Attorneys, Brooklyn, NY, on the brief), for Appellant.

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Joseph A. Bondy, New York, NY, for Defendant-Appellee Eppolito.

Daniel Nobel, New York, NY, for Defendant-Appellee Caracappa.

Before: KEARSE, SACK, and HALL, Circuit Judges.

KEARSE, Circuit Judge:

The United States appeals from orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, entered following jury verdicts finding defendants Louis Eppolito and Stephen Caracappa guilty on all counts of a superseding indictment (“ Indictment" ) that charged them with, inter alia, racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“ RICO" ), 18 U.S.C. § 1962(d). The district court granted each defendant a judgment of acquittal on the RICO conspiracy count pursuant to Fed.R.Crim.P. 29, ruling that there was insufficient evidence of that conspiracy's existence within five years of the commencement of this prosecution, and hence that the prosecution of defendants on that count is barred by the statute of limitations, see 18 U.S.C. § 3282(a). The court also ruled that unless its dismissal of the RICO conspiracy count were overturned on appeal, defendants should have a new trial on the other counts-which charged both defendants with distribution of and conspiracy to distribute narcotics, and charged Eppolito with attempted money laundering-because the evidence on the RICO conspiracy count may have unfairly affected the jury's consideration of those counts. On appeal, the government contends principally that the evidence was sufficient to support the jury's finding that the conspiracy continued to exist within five years of the commencement of this prosecution, and that, in any event, defendants' conspiracy to conceal their associations, criminal conduct, and ongoing goals continued into the limitations period. Finding merit in the government's first contention, we reverse the orders of the district court and remand for reinstatement of the jury's verdicts and the imposition of sentences.

I. BACKGROUND

Louis Eppolito (sometimes referred to in the trial testimony as “ Lou" or “ Louie" ) and Stephen Caracappa (sometimes referred to in the testimony as “ Steve" ) are former police detectives who were employed by the New York City Police Department (“ NYPD" ) until the early 1990s. The present prosecution was commenced on March 9, 2005; the Indictment alleged that Eppolito and Caracappa, along with others, were leaders of a racketeering enterprise whose principal purpose was to generate money for its participants by assisting and protecting members and associates of organized crime families (collectively the “ Mafia" ). It alleged that from approximately May 18, 1979, through March 9, 2005, Eppolito and Caracappa conspired to conduct the affairs of the enterprise through a pattern of racketeering activity that included bribery, obstruction of justice, witness tampering, narcotics trafficking, money laundering, kidnaping, and murder.

The evidence at trial included the testimony of law enforcement agents, former members or associates of organized crime families in the New York City area with respect to events in the 1980s and 1990s, and a government informant who secretly tape-recorded his conversations with Eppolito, Caracappa, and others in Las Vegas in 2004-2005. The jury found that Eppolito and Caracappa had committed all of the racketeering acts alleged against them in the Indictment and found them guilty on all of the counts in which they

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were charged. As we are reviewing a Rule 29 judgment of acquittal, we describe the record in some detail, taking the evidence in the light most favorable to the government and in accordance with the jury's verdicts. We note also that Eppolito and Caracappa, while endorsing the district court's ruling that the evidence was insufficient to support the jury's finding that the RICO conspiracy continued to exist into the limitations period, have not challenged the sufficiency of the evidence on the RICO conspiracy count in any other respect.

A. Events in the New York Area

At the times pertinent to the Indictment, the New York City area Mafia consisted of five Organized Crime Families: the Bonanno, the Colombo, the Gambino, the Genovese, and the Lucchese. The government's key witness at trial was Burton Kaplan, a former associate of the Lucchese Crime Family who had been involved in, inter alia, narcotics trafficking, sales of stolen goods and misbranded clothing, and attempts to negotiate stolen financial instruments. At the time of this trial, Kaplan had served roughly one-third of a 27-year sentence imposed on him for conspiracy to engage in narcotics trafficking. Pursuant to his cooperation agreement in connection with the present case, Kaplan had pleaded guilty to, inter alia, participating in the RICO conspiracy alleged in the present prosecution. At trial, Kaplan testified principally that Eppolito and Caracappa were a partnership that in 1986-1993 provided various services to him as an associate of organized crime and, through him as an intermediary, to his close friend Anthony Casso, a Lucchese Crime Family member who in the late 1980s became its underboss, i.e., second in command.

In the early 1980s, Kaplan had been in prison with Frank (“ Frankie" ) Santoro, Jr., who was loosely associated with the Gambino Crime Family. In late 1985 or early 1986, after both men had been released from prison, Santoro approached Kaplan and said that Santoro had a cousin who was a police detective, whom he identified as Eppolito, and that “ Eppolito and his partner" -only later identified to Kaplan as Caracappa (Trial Transcript (“ Tr." ) 426-27)-would, in exchange for money, provide Kaplan with law enforcement information and other types of assistance. At that time, Eppolito was an NYPD detective in the 63rd Precinct in Brooklyn; Caracappa, likewise an NYPD detective, was a member of a task force whose members included local detectives and agents of the Federal Bureau of Investigation (“ FBI" ). While Eppolito generally had access only to information in his precinct, Caracappa's position with the task force gave him access to a great deal of information about both local and federal matters. Kaplan testified that Santoro, in offering the services of Eppolito and Caracappa, said Eppolito could

search around and find out if I had anything pending against me or if I was under any kind of surveillance and that ... [Santoro's] cousin had a partner that had a prestigious job and between the two of them, they could help me and if I had any problems physically, they could help me.

(Tr. 515.)

Frankie approached me and said that his cousin was a detective and that if I wanted his cousin [could] get me information and could help me if I ever have a problem and could probably help me on ongoing investigations.

....

... He offered to get me information on any investigation that was going on

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and if I had a serious problem in the street, he offered to do murders for me.

(Tr. 426, 427; see also id. at 516 (“ He said that if I had any kind of serious problem, that-that he himself, his cousin and his cousin's partner were capable of doing a murder." ).)

Kaplan initially rejected Santoro's offer, explaining that he “ didn't want to do business with any cops" because it “ possibly could come back and haunt [him] if one of them would later on in life become an informant." (Tr. 427-28.) Santoro assured Kaplan “ that [Santoro] had done things with them previously and that they were good stand-up guys and that he would have no fear of anything, doing anything with them." (Tr. 517.) The term “ stand up," in the vernacular of organized crime, means refusing to give information to law enforcement agents, even if that refusal means receiving punishment and going to jail. (Tr. 748; see also id. at 551-52 (conversely, to “ go bad" means “ become [an] informant [ ]" ).)

1. The Murder of Israel Greenwald

Notwithstanding his initial rejection of Santoro's offer of assistance from Eppolito and Caracappa, Kaplan soon had a change of heart. In early 1986, having learned that his participation in a scheme involving stolen Treasury bills was in danger of being exposed, Kaplan hired Santoro, Eppolito, and Caracappa to murder one of the other participants in the scheme, Israel Greenwald.

Santoro, Eppolito, and Caracappa carried out their mission by following Greenwald's car on a highway and turning on flashing lights on their car, thereby causing Greenwald to stop on the side of the road. They told Greenwald that he was a suspect in a hit-and-run and that they needed to take him to the police station for a lineup. They then drove Greenwald instead to the premises of an auto repair shop in Brooklyn, where Santoro shot and killed him. Kaplan paid Santoro $30,000 for the murder; Santoro kept $5,000, unbeknownst to Eppolito and Caracappa, and divided the remaining $25,000 among himself, Eppolito, and Caracappa.

2. The Murder of Jimmy Hydell

In mid-1986, there was an unsuccessful attempt on the life of Casso, who was then the acting underboss of the Lucchese Crime Family. The attack took place in...

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