U.S. v. Persico

Citation645 F.3d 85
Decision Date03 May 2011
Docket NumberDocket Nos. 08–5266–cr(L),09–0992–cr,09–1076–cr.
PartiesUNITED STATES of America, Appellee,v.Alphonse T. PERSICO, also known as Kid, also known as Allie Boy, and John J. DeRoss, also known as Jackie, Defendants–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

645 F.3d 85

UNITED STATES of America, Appellee,
v.
Alphonse T. PERSICO, also known as Kid, also known as Allie Boy, and John J. DeRoss, also known as Jackie, Defendants–Appellants.

Docket Nos. 08–5266–cr(L)

09–0992–cr

09–1076–cr.

United States Court of Appeals, Second Circuit.

Argued: June 14, 2010.Decided: May 3, 2011.


[645 F.3d 89]

John David Buretta, Jeffrey Goldberg, Assistant United States Attorneys, Brooklyn, New York (Benton J. Campbell, United States Attorney for the Eastern District of New York, Peter A. Norling, Elizabeth Geddes, James Gatta, Assistant United States Attorneys, Brooklyn, New York, on the brief), for Appellee.Paul Shechtman, New York, New York (Nathaniel Z. Marmur, Stillman, Friedman & Shechtman, New York, New York, on the brief), for Defendant–Appellant Persico.Robert P. LaRusso, Mineola, New York (LaRusso & Conway, Mineola, New York, on the brief), for Defendant–Appellant DeRoss.Before: JACOBS, Chief Judge, KEARSE and LEVAL, Circuit Judges.KEARSE, Circuit Judge:

Defendants Alphonse T. Persico (“Persico”) and John J. DeRoss appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before Joanna Seybert, Judge, convicting them of the murder in May 1999 of William (“Bill,” “Billy,” or “Wild Bill”) Cutolo Sr. (“Cutolo”) in aid of racketeering, in violation of

[645 F.3d 90]

18 U.S.C. § 1959(a)(1) (Count One), witness tampering, in violation of 18 U.S.C. §§ 1512(b)(1) and (b)(2)(A) (Count Six), and conspiracy to commit witness tampering, in violation of 18 U.S.C. § 371 (Count Five), and sentencing them principally to life imprisonment. On appeal, defendants contend, inter alia, that they should have been granted a new trial after the posttrial discovery of Cutolo's body; that there were prejudicial errors in the admission of certain testimony by Cutolo's widow; that the evidence was insufficient to support their convictions on the witness-tampering counts; and that the government improperly withheld information that was material to the defense; DeRoss also contends that the admission of certain testimony by Cutolo's daughter was unduly prejudicial and that the evidence was insufficient to support his conviction on the murder count. Finding no basis for reversal, we affirm the judgments of conviction.

I. BACKGROUND

The present prosecution grew out of a struggle for power within the Colombo Crime Family (or “Colombo Family”), one of five organized crime families (collectively “La Cosa Nostra” or the “Mafia”) in the New York City area. The indictment alleged that the Colombo Family constituted a RICO enterprise, see 18 U.S.C. § 1961(4), whose purposes included the enrichment of its members and associates through illegal activities and through the concealment of those activities, their participants, and the locations of their proceeds. It alleged that Persico, who was also known as “Kid,” “Allie,” or “Allie Boy,” was at various times a soldier, a captain, and the acting boss—or leader—of the Colombo Family; and that DeRoss, who was also known as “Jackie,” was at various times a soldier, a captain, and the acting underboss—or second in command—of that family. At the trial leading to defendants' convictions on the above charges—a prior trial had ended in a hung jury—the government's evidence included tape-recorded conversations, telephone records, and testimony by numerous Federal Bureau of Investigation (“FBI”) agents, Cutolo's wife and his daughter, and several former members or associates of organized crime. The evidence as to Cutolo's murder was circumstantial; there was no eyewitness testimony, and as of the time of trial his body had not been found.

The evidence at trial, taken in the light most favorable to the government, showed the following.

A. The Colombo Family War and the Ascensions of Persico and Cutolo

Each of the five organized crime families was typically run by a boss, assisted by an underboss and a consigliere, or advisor; below that administrative trio were the family's captains, or capos, who supervised the “soldiers,” i.e., those who had been made “members” of the family by formal induction. The soldiers, in turn, managed participants in or contributors to family enterprises who were not “made members” and were called “associates.” (Trial Transcript (“Tr.”) 1139–42.) Crime family protocols were stringent. Members and associates of a family were not allowed to speak to members of other crime families or to higher-ranking members of their own family without a formal introduction. ( See, e.g., Tr. 1414–16.) Members involved in disputes were expected to discuss matters civilly (have a “sit-down”), with at least the appearance of mutual respect. ( See, e.g., id. at 1148, 1200–01, 1910.) And no family member—especially no underboss, a member of the family's administration—could be killed without permission from the boss. ( See, e.g., id. at 1275 (made member), 1827 (underboss), 1756 (“Nobody can kill the

[645 F.3d 91]

underboss without ... exposing yourself to get killed yourself.”); see also id. at 2994 (no “boss” could be killed without permission of the La Cosa Nostra ruling body, the “Commission”).) Salvatore Vitale, a member of the Bonanno Crime Family (or “Bonanno Family”) for some 30 years, testified that by the time he became that family's underboss he had been involved in 11 murders; in each instance he had the permission of the Bonanno Family's boss to commit the murder. ( See, e.g., id. at 2863, 2874.) Michael DiLeonardo, a former captain in the Gambino Crime Family (or “Gambino Family”), testified that various Mafia rules were often broken, but the rule against killing a made member without permission was broken less frequently, as the punishment would be death. ( See, e.g., id. at 1754–56; see also id. at 1744–49 (killing of the new Gambino Family underboss in 1986 was authorized by the Commission after the unauthorized killings in 1985 of Gambino boss Paul Castellano and his underboss).)

In the early 1990s, the boss of the Colombo Crime Family was Persico's father, Carmine Persico, who was serving a lengthy term of imprisonment. Persico and DeRoss, who were captains, were also in prison, but for much shorter terms. Victor Orena was the family's acting boss, a position to which Persico aspired. A bloody war was sparked when someone tried to kill Orena, motivated by the fact that Persico would soon be released from prison and the belief that Orena would refuse to step down as acting boss. ( See, e.g., id. at 1271–76, 1732, 2881–85.) In the intra-family war, there were about a dozen killings ( see id. at 1278); Cutolo was a member of the faction supporting Orena ( see id. at 1276). The war ended in 1992 or 1993 because so many family members had been killed or arrested; but there remained two factions, and the Commission would not allow the Colombo Family to induct new members until the family got itself in order. ( See, e.g., id. at 1282, 1820, 2886–87.) DeRoss, Cutolo, and several others got together and decided to attempt a reconciliation, operating with Persico as their captain. ( See id. at 1282–85.) In about 1998, the Commission decided to back the Persico faction ( see id. at 2891–92); Persico became the family's acting boss, and Cutolo became the acting underboss ( see, e.g., id. at 1421).

Cutolo, by all accounts, was difficult to deal with: intransigent in negotiations with other crime families and harsh with members and associates of his own crime family. ( See, e.g., Tr. 1790–91, 1288–89, 2231–37, 2277–78, 2283–89.) DiLeonardo, as a captain in the Gambino Crime Family, served as that family's liaison with the Colombo Family. ( See id. at 1729.) He was friendly with DeRoss, whose grandchildren played football on a team with DiLeonardo's son, and was even more friendly with Persico. ( See id. at 2106–07, 1797–98.) DiLeonardo testified that, in his liaison capacity, he met with Cutolo dozens of times ( see id. at 1732), and he viewed Cutolo as having aspirations to become the boss of the Colombo Family ( see, e.g., id. at 1821 (“You could see him coming like a train”; he “had a lot of momentum behind him. He wasn't about to sit still.... He was all about Cosa Nostra, and he wanted to wear the main hat, the main.”)). DiLeonardo was concerned that Cutolo might kill Persico. ( See, e.g., id. at 1822 (Cutolo “was a threat to Allie”; “he would have killed him. I know he would have killed Allie in time.”).) DiLeonardo thus warned Persico, “Bill has boss mentality”; Persico understood what that meant. ( Id.)

Joseph Campanella was a Colombo soldier who had grown up with Cutolo and socialized with Cutolo and Cutolo's three adult children. ( See Tr. 1262–63.) When Campanella became a made member of the

[645 F.3d 92]

Colombo Family, Cutolo was his captain ( see id. at 1275); during the Colombo Family war, Campanella was one of Cutolo's bodyguards ( see id. at 1277); and during a 13-month period when Cutolo was in jail, Campanella ran Cutolo's crew of soldiers and associates ( see id. at 1283); but once Cutolo became the Colombo underboss, Cutolo became “distant” ( id. at 1288). There was also controversy over Campanella's owing Cutolo some $300,000, which Cutolo had advanced several years earlier for loansharking activity. ( See id. at 1288, 1346.) In early 1999, Campanella bought himself a Mercedes automobile; DeRoss told Campanella that Cutolo was annoyed that Campanella would be spending substantial sums on himself, rather than repaying any of his debt to Cutolo, and that Cutolo was threatening to break the windows in Campanella's car. Campanella told DeRoss he was “very, very offended” by Cutolo's threat. ( Id. at 1288–89.)

In mid-April 1999, Campanella and DeRoss were to attend an unrelated sit-down and were discussing what they would say. Campanella testified that during their preparations for that meeting “Jack DeRoss asked me how I feel about killing Wild Bill,” and “[h]e was serious.”...

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