641 Fed.Appx. 153 (3rd Cir. 2016), 13-3221, United States v. Massimino

Docket Nº:13-3221, 13-3263, 13-3383
Citation:641 Fed.Appx. 153
Opinion Judge:VANASKIE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. JOSEPH MASSIMINO, a/k/a Mousie; DAMION CANALICHIO, a/k/a DAME; and ANTHONY STAINO, JR., a/k/a ANT, Appellants
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-3383): John S. Han, Esq., Frank A. Labor, III, Esq., Office of United States Attorney, Philadelphia, PA. For ANTHONY STAINO, JR., Defendant - Appellant (13-3383): Gregory J. Pagano, Esq., Philadelphia, PA. For UNITED STATES OF AMERICA, Plaint...
Judge Panel:Before: VANASKIE, SLOVITER and RENDELL, Circuit Judges.
Case Date:January 15, 2016
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 153

641 Fed.Appx. 153 (3rd Cir. 2016)

UNITED STATES OF AMERICA

v.

JOSEPH MASSIMINO, a/k/a Mousie; DAMION CANALICHIO, a/k/a DAME; and ANTHONY STAINO, JR., a/k/a ANT, Appellants

Nos. 13-3221, 13-3263, 13-3383

United States Court of Appeals, Third Circuit

January 15, 2016

Submitted Under Third Circuit L.A.R. 34.1(a) September 10, 2015.

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 2-09-cr-00496-004, 2-09-00496-008, 2-09-cr-00496-001). District Judge: Hon. Eduardo C. Robreno.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-3383): John S. Han, Esq., Frank A. Labor, III, Esq., Office of United States Attorney, Philadelphia, PA.

For ANTHONY STAINO, JR., Defendant - Appellant (13-3383): Gregory J. Pagano, Esq., Philadelphia, PA.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-3263): Heather A. Castellino, Esq., Bucks County Office of District Attorney, Doylestown, PA; Suzanne B. Ercole, Esq., Frank A. Labor, III, Esq., David E. Troyer, Esq., Office of United States Attorney, Philadelphia, PA; John S. Han, Esq., Office of United States Attorney, Philadelphia, PA.

For DAMION CANALICHIO, Defendant - Appellant (13-3263): Lucille A. Bongiovanni, Esq., Bongiovanni Law, Philadelphia, PA.

Before: VANASKIE, SLOVITER and RENDELL, Circuit Judges.

Page 154

OPINION[*]

VANASKIE, Circuit Judge.

Appellants Joseph Massimino, Damion Canalichio, and Anthony Staino, Jr., are

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reputed members of the Philadelphia La Cosa Nostra (LCN), an organized crime ring, who were convicted of or pleaded guilty to a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d). Over the course of a lengthy trial, the Government presented evidence that Appellants conspired to engage in both (1) a pattern of racketeering activity that included extortion, loansharking, and illegal gambling, as well as (2) the collection of unlawful debt.1 Appellants now raise various challenges to their convictions and sentences. For the following reasons, we will affirm.

I.

In January 2011, a federal grand jury in the Eastern District of Pennsylvania returned a Third Superseding Indictment against fourteen defendants, including Appellants, in connection with their involvement in the Philadelphia LCN and its criminal activity over a number of years. Appellants and eight other defendants were charged with participation in a RICO conspiracy in violation of 18 U.S.C. § 1962(d) (Count 1). Massimino was also charged with one count of conspiracy to conduct an illegal gambling business, in violation of 18 U.S.C. § 371 (Count 43), and two counts of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955 (Counts 44 and 48). Canalichio was charged with two counts of conducting an illegal gambling business (Counts 47 and 49). Staino was charged with eleven counts of collection of unlawful debt, in violation of 18 U.S.C. § 1962(c) (Counts 2-12); two counts of conspiracy to make extortionate extensions of credit, in violation of 18 U.S.C. § 892(a) (Counts 24 and 39); one count of conspiracy to collect extensions of credit by extortionate means, in violation of 18 U.S.C. § 894(a)(1) (Count 25); ten counts of collection of extensions of credit by extortionate means, in violation of 18 U.S.C. § 894(a)(1) (Counts 13-23); one count of conspiracy to conduct an illegal gambling business (Count 43); one count of conducting an illegal gambling device business (Count 44); and one count of conducting an illegal sports bookmaking business, in violation of 18 U.S.C. § 1955 (Count 49).

In October 2012, Appellants and four other defendants proceeded to trial in the District Court for the Eastern District of Pennsylvania. The trial, which lasted over four months, included thousands of pages of testimony from dozens of FBI agents, cooperators, and other government witnesses. Some witnesses described discrete interactions with specific defendants, while others provided testimony as to the LCN's coded jargon and hierarchical structure.2 The Government also introduced voluminous amounts of

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wiretap material and other covertly recorded conversations. The evidence on the whole established that the Philadelphia LCN, as an organization, exercised control over illegal gambling, bookmaking, and loansharking operations, all bolstered by implicit or explicit threats of physical violence. For the sake of brevity, we will restate only the facts necessary for resolution of this appeal.

A. Massimino

The evidence at trial was that Massimino was not only a made member of the Philadelphia LCN, but that at times he served as the Family's underboss, or second-in-command. The Government's case against Massimino was based on his participation in at least four separate activities: (1) the illegal operation of video poker machines; (2) the extortion of M& P Vending; (3) the annual collection of a " street tax" from bookmaker Jack Buscemi; and (4) the attempt to collect on an unlawful loan from debtor Jerry Iamurri. We briefly detail those incidents below.

At trial, the Government demonstrated that Massimino, as manager of an LCN establishment known as Lou's Crab Bar, oversaw the collection of illegal gambling proceeds from two video poker machines at that location. In a series of raids conducted in April 2001, the FBI seized dozens of the Philadelphia LCN's video poker machines. Massimino and Joseph Ligambi, a co-defendant and the purported boss of the Philadelphia LCN, attempted to stem their losses from the FBI's raid by acquiring a still-existing video poker route operated by M& P Vending, a company co-owned by government trial witness Joseph Procaccini and grand jury witness Paul Drzal. Procaccini testified that in May 2001, he and Drzal were asked to meet with Massimino and Ligambi at Lou's Crab Bar. Knowing that the two were LCN members, Procaccini offered Ligambi and Massimino a share of M& P Vending's profits so the two would " leave [Procaccini and Drzal] alone." Supp. App. 4217-18. Procaccini was concerned for his safety, testifying " we would get hurt if we didn't play ball with them," Supp. App. 4220-21, and that he " was afraid of getting beat up or getting hurt in some way" if they resisted, Supp. App. 4277.

At the end of the meeting, Massimino instructed Procaccini and Drzal to prepare a list of M& P Vending's video poker locations, which they did. Days later Massimino introduced them to Staino, who accompanied them to the machines and replaced the locks on the machines' cash receptacles, effectively placing them under LCN control. Procaccini refused subsequent demands from Massimino and Staino that he sign an agreement of sale formally conveying the video poker machines to them. He conceded that he accepted roughly $63,000 from Massimino and Staino over the following months, but asserted that this was only a portion of the profit from the machines and that he never would have voluntarily sold the machines at that price.

The Government also introduced evidence that Massimino, acting on behalf of the Philadelphia LCN, extorted bookmaker Jack Buscemi, who testified that he paid " Christmas money" to the LCN so he could operate his bookmaking business without " disruption," such as interference with the business or physical violence. Supp. App. 2615-17. Buscemi testified that in 2002, he met with Massimino at Lou's Crab Bar and delivered a $7,500 " Christmas payment." Supp. App. 2627-28. In 2003, Buscemi made a second payment to Massimino for the same purpose.

In March 2004 Massimino was convicted on state racketeering charges in New Jersey, but even while incarcerated, he continued

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to participate in LCN affairs. Before reporting to state prison, Massimino told Buscemi that an LCN associate, Gaeton Lucibello, would be collecting future payments, which Buscemi made to Lucibello in 2004, 2005, and 2006. The Government also introduced recordings of Massimino's prison calls, on which Massimino instructed LCN associate Robert Verrecchia on how to handle the illegal gambling proceeds at Lou's Crab Bar in Massimino's absence.

Finally, the Government produced a letter seized from Massimino's outgoing prison mail pursuant to a federal subpoena. In the letter, Massimino asked a friend, Archie Rosenberg, to communicate a threat to an LCN debtor, Jerry Iamurri, regarding an outstanding $35,000 loan. The letter stated, in part: Get in touch with Michael [Curro] and tell him to tell his mother to tell her husband [Jerry Iamurri] that he better get my fuckin money. I don't care who the fuck he owes he better get mine. This mother fucker owes me 35,000. I don't care if he has to rob a bank. He fuckin better get my money. . . . I'm tired of the stories and bullshit. He won't be able to hide anywhere in the U.S.

Supp. App. 5680.

B. Canalichio

The Government's evidence at trial was that Canalichio was a made member of the LCN who participated extensively in the organization's illegal bookmaking and loansharking. To establish Canalichio's general status in the LCN, the Government introduced recorded conversations in which other LCN members referred to Canalichio's induction into the LCN and discussed his incarceration status. The Government also introduced photos recovered from Canalichio's home in which Canalichio was seen posing with Philadelphia LCN notables, including Massimino. The bulk of the substantive evidence against Canalichio, however, came from (1) the testimony of cooperating witnesses who had been...

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