U.S. v. Massino
| Decision Date | 10 October 2008 |
| Docket Number | Docket No. 07-1618-cr. |
| Citation | 546 F.3d 123 |
| Parties | UNITED STATES of America, Appellee, v. Joseph MASSINO, also Known as Joey Messina, John Joseph Spirito, also Known as Johnny Joe, Emanuel Guaragna, Anthony Frascone, also Known as Anthony Nicole, also Known as Anthony The Hat, Anthony Siano, Russel Trucco, also known as The Truck, Anthony Donato, Vincent Basciano, Defendants, Patrick DeFilippo, also known as Patty from the Bronx, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Winston Y. Chan, Assistant United States Attorney (Greg D. Andres, Peter A. Norling, Amy Busa, Assistant United States Attorneys, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Defendant-Appellee.
Before: HALL, LIVINGSTON, Circuit Judges, and McMAHON, District Judge.*
Defendant-Appellant Patrick DeFilippo appeals from the judgment of the District Court for the Eastern District of New York (Garaufis, J.), convicting him of conspiring to racketeer, three counts of illegal gambling (conspiracy and substantive), and conspiring to collect on an extension of credit through extortionate means. The district court sentenced DeFilippo to a collective term of forty years' imprisonment. On appeal, DeFilippo claims several errors: (1) the erroneous admission of several statements by cooperating and expert witnesses; (2) the unwarranted striking of testimony given by a cooperating witness and imposition of restrictions on cross-examination of that witness; (3) insufficiency of the evidence; and (4) procedural unreasonableness in sentencing, consisting of errors in the district court's application of the Guidelines. We address most of DeFilippo's evidentiary challenges and his sufficiency challenge in a separate summary order filed simultaneously herewith. We review here DeFilippo's challenge to the admission of certain testimony given by cooperating witness James Tartaglione, as well as his sentencing challenges. We find that the admission of that testimony was in error, but the error was harmless. Accordingly, for the reasons stated herein and in the accompanying summary order, the judgment of conviction and sentence are AFFIRMED.
On January 11, 2006, a federal Grand Jury returned a Superseding Indictment ("the Indictment") charging Patrick DeFilippo and Vincent Basciano with eleven counts stemming from their involvement with the Bonanno Crime Family ("the Family"), one of the Five Families of New York. The Indictment explained that the Family was "an organized criminal group" that was organized into subgroups headed by captains (or "capos"). The Family's purpose was "to generate money for its members and associates," and it achieved this objective "through various criminal activities." The Indictment accused Basciano and DeFilippo of being members and captains within the Family.
Count 1 of the Indictment charged DeFilippo and Basciano with a racketeering conspiracy. The racketeering conspiracy was based on thirteen predicate racketeering acts, all of which allegedly involved both defendants unless otherwise noted: (1) supervision of an illegal gambling business (applicable only to Basciano); (2) illegal gambling involving Joker-Poker machines; (3) conspiracy and attempt to murder David Nunez; (4) bookmaking (applicable only to DeFilippo); (5) extortionate extension of credit (applicable only to Basciano); (6) extortionate extension of credit (applicable only to Basciano); (7) conspiracy to use extortionate means to collect on an extension of credit (applicable only to DeFilippo); (8) collection on an extension of credit through extortionate means (applicable only to DeFilippo); (9) collection on an extension of credit through extortionate means (applicable only to DeFilippo); (10) conspiracy to murder and murder of Gerlando Sciascia (applicable only to DeFilippo); (11) conspiracy to murder and murder of Frank Santoro (applicable only to Basciano); (12) murder-for-hire (applicable only to Basciano); and (13) conspiracy to collect on an extension of credit through extortionate means (applicable only to Basciano).
Counts 2, 3, and 4 all charged offenses related to illegal gambling and bookmaking. Count 5 charged an extortionate collection of credit conspiracy, and Counts 6 and 7 charged substantive extortionate collection of credit. Counts 8, 9, and 10 charged DeFilippo with murder in aid of racketeering, conspiring to murder in aid of racketeering, and using a firearm during a crime of violence, respectively, for the murder of Gerlando ("George") Sciascia and the use of a firearm during that murder. Count 11 charged Basciano with an additional extortionate credit collection offense.
DeFilippo and Basciano were tried jointly in 2006. After an eleven-week trial, the jury returned its verdict on May 9, 2006. It found DeFilippo guilty of Count 1 (racketeering conspiracy), Counts 2, 3, and 4 (illegal gambling and bookmaking), and Count 5 (extortionate credit collection conspiracy). The jury found DeFilippo not guilty of Counts 6 and 7 (substantive extortionate credit collection). The jury failed to reach a unanimous verdict on Counts 8, 9, and 10 (murder of George Sciascia, conspiracy to murder George Sciascia, and use of a firearm during the murder of George Sciascia).
With respect to Count 1, the racketeering conspiracy, the jury also returned a special verdict identifying the racketeering acts on which it had found DeFilippo guilty. The jury determined that the Government had proven two acts involving illegal gambling, one act of extortionate credit collection conspiracy, and the conspiracy to murder, and attempted murder of, David Nunez. The jury concluded that the Government had failed to prove two acts of substantive extortionate credit collection. Finally, the jury failed to reach a unanimous decision as to whether the Government had proven the racketeering acts of conspiracy to murder, and murder of, George Sciascia.
The district court sentenced DeFilippo in March 2007. It imposed a combined sentence principally consisting of forty years' imprisonment. This sentence was fifteen years below the applicable Guidelines sentence. Further details about the sentencing process are provided in the discussion of DeFilippo's sentencing-related challenges, infra.
On appeal, DeFilippo challenges his conviction and sentence on several grounds. Here, we address two evidentiary issues and two sentencing challenges. With respect to the district court's rulings on the admission of evidence, we address DeFilippo's claims that the district court erred when it admitted James Tartaglione's testimony concerning two subjects: (1) whether Tartaglione knew of anyone whom the Government had charged with a crime of which that person was not guilty; and (2) an out-of-court statement made by another individual about "killing kids." We also address DeFilippo's two challenges to his sentence. We address all of DeFilippo's other challenges in an accompanying summary order.
The first two of DeFilippo's challenges that we address in this opinion relate to the district court's evidentiary rulings, which we review "only for abuse of discretion." United States v. Wexler, 522 F.3d 194, 202 (2d Cir.2008).
DeFilippo's first challenge involves the Government's questioning of James Tartaglione, a high-ranking member of the Family who testified as a cooperating Government witness at trial. At some point in the past, Tartaglione had recorded his conversations with other members of the Family at the request of the Government. Two of the recordings were introduced into evidence and played for the jury. One recording contained an exchange between Tartaglione and Basciano (DeFilippo's co-defendant) about the possibility that Basciano might be arrested and charged with a 2001 murder:
Basciano: They're gonna be tough to pinch me on this.... You wanna know why? ... They have no nothing.... How are they going to pinch me on that?
Tartaglione: You, do you want me ... my honest opinion? (pause) Vinny?
Basciano: Oh yeah yeah.
Tartaglione: I'm gonna give you my honest opinion. What they do—
Basciano: They paint you in a certain light.
Tartaglione: They paint you—
Basciano: A hundred percent.
Tartaglione: Listen, but they don't only hit you with this charge. Nine thousand six hundred and eighty-four other charges.
Basciano: ha ha ha ha ha ha.
Tartaglione: You're guilty of this anyhow, so they throw this in there.
Basciano: I go home tonight I eat my macaroni.
Tartaglione: That's right.
Immediately after playing this exchange for the jury, the Government asked Tartaglione what he had meant by "[t]hey paint you in a certain light" and the reference to "[n]ine thousand six hundred and eighty-four other charges." When asked why he had made the statement about "other charges," Tartaglione responded: (Trial Tr. at 4794.) This response fully answered the question but apparently was not the answer the Government had been hoping for. So, the Government continued questioning Tartaglione about what he had meant:
Q: During the course of time that you have been involved in the [Family], do you specifically know of anyone that's been charged with a crime that they were not guilty of?
Defense: Objection, 6012.
Defense: Objection.
Defense: Objection.
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