671 F.3d 220 (2nd Cir. 2012), 10-0065-cr, United States v. Coppola

Docket Nº:10-0065-cr.
Citation:671 F.3d 220
Opinion Judge:REENA RAGGI, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Michael COPPOLA, Defendant-Appellant.
Attorney:Robert A. Culp, Esq., Garrison, NY, for Defendant-Appellant. Amy Busa (Peter A. Norling, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Judge Panel:Before: RAGGI, LYNCH, and WALLACE, Circuit Judges.[*]
Case Date:February 14, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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671 F.3d 220 (2nd Cir. 2012)

UNITED STATES of America, Appellee,

v.

Michael COPPOLA, Defendant-Appellant.

No. 10-0065-cr.

United States Court of Appeals, Second Circuit.

February 14, 2012

Argued: May 20, 2011.

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Robert A. Culp, Esq., Garrison, NY, for Defendant-Appellant.

Amy Busa (Peter A. Norling, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: RAGGI, LYNCH, and WALLACE, Circuit Judges.[*]

REENA RAGGI, Circuit Judge:

Defendant Michael Coppola was found guilty after a jury trial in the United States District Court for the Eastern District of New York (John Gleeson, Judge ) of conducting and conspiring to conduct

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the affairs of the Genovese organized crime family through a pattern of racketeering activity evidenced by the use of extortion and fraud to control the New York-New Jersey waterfront generally and International Longshoreman's Association (" ILA" ) Local 1235 in particular, and by the possession of false identification documents. See 18 U.S.C. § 1962(c), (d). On this appeal from the December 31, 2009 amended judgment of conviction sentencing him to concurrent terms of sixteen years' incarceration, Coppola challenges (1) the legal validity of the extortion and wire fraud subpredicates charged as Racketeering Act One, particularly after Skilling v. United States, --- U.S. ----, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); (2) the sufficiency of the evidence to prove any of these subpredicates; (3) the sufficiency of the evidence to prove the pattern element of racketeering; (4) various evidentiary rulings; (5) the jury charge; and (6) the reasonableness of his sentence. For the reasons stated herein, we reject these arguments and affirm the judgment.

I. Background

A. The Crimes of Conviction

Coppola was convicted on a two-count superseding indictment charging him with substantive and conspiratorial racketeering in connection with his activities over three decades as an associate, soldier, and ultimately captain of the Genovese organized crime family, one of the five arms of La Cosa Nostra in the New York metropolitan area.1 The pattern of racketeering through which Coppola was alleged to have conducted and participated in the affairs of the Genovese family was charged in three predicate acts.

Racketeering Act One alleged conspiracy to extort, extortion, and wire fraud in connection with the Genovese family's control of ILA Local 1235. See 18 U.S.C. §§ 1343, 1346, 1951(a), (b)(2). As to the extortion subpredicates, the indictment charged that between January 1974 and March 2007, Coppola and others obtained or conspired to obtain the property of Local 1235 members both in the tangible form of " Local 1235 labor union positions, money paid as wages and employee benefits and other economic benefits that such Local 1235 union members would have obtained but for the defendant and his co-conspirators' corrupt influence over such union," and in the intangible form of " the right of Local 1235 members to have the officers, agents, delegates, employees and other representatives of their labor organization manage the money, property and financial affairs of the organization in accordance with Title 29, United States Code, Section 501(a)." Indictment ¶ ¶ 16, 19. 2 The property was allegedly obtained with the consent of union officials " induced by wrongful use of actual and threatened force, violence or fear." Id.

As to the wire fraud subpredicate of Racketeering Act One, the indictment charged that between January 1974 and March 2007, Coppola and others devised a scheme to defraud Local 1235 union members of (1) the same tangible property charged in the extortion subpredicates,

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and (2) intangible property in the form of " the right of the honest services of the Local 1235 Presidents." Id. ¶ 20. The particular use of wires charged to execute the scheme was an interstate telephone conversation between Coppola and an unindicted confederate, Edward Aulisi, on March 6, 2007.

Racketeering Act Two charged Coppola with the April 10, 1977 attempted and actual murder of Giovanni Larducci, also known as " John Lardiere" and referred to as such in the record. See N.J. Stat. Ann. §§ 2A:113-1, 2A:113-2 (1977).

Racketeering Act Three alleged that between August 1996 and March 2007, Coppola conspired to possess with intent to use various false identification documents. See 18 U.S.C. § 1028(a)(3), (f).

Because the jury found only the first and third predicates proved, our factual discussion focuses on these matters, with the evidence viewed in the light most favorable to the verdict. See, e.g., United States v. Jass, 569 F.3d 47, 50 (2d Cir.2009).

B. Trial Evidence

The government adduced extensive evidence of the Genovese family's criminal control over the Manhattan and New Jersey waterfronts generally and over Local 1235 in particular. Genovese family member George Barone, Genovese associate Michael D'Urso, Gambino family member Primo Cassarino, and Lucchese family member Thomas Ricciardi testified that mob control over the metropolitan area waterfront dated from the 1950s, with an understanding between the Genovese and Gambino families that the former enterprise would dominate unions and businesses operating on the Manhattan and New Jersey docks, while the latter enterprise dominated unions and businesses operating in Brooklyn and Staten Island. Asked how such control was exercised, Barone replied, " intimidation, fear, whatever." Trial Tr. at 1114. While much of Barone's testimony focused on mob dominance of Manhattan-based ILA Local 1804-1, which was eventually exercised by Coppola and his one-time Genovese captain, Tino Fiumara, the totality of the evidence demonstrated that intimidation and fear was the common scheme or plan used by the Genovese family to secure and maintain waterfront control. In a recorded conversation, Local 1804-1 vice-president Thomas Buzzanca stated that " everybody fears and respects [Fiumara]," and " we all live under[ ] fear." Gov't Ex. TR-CD-5b at 1-2, 5 (emphasis added).

Evidence showed that the Genovese family used its control of unions to dictate what businesses worked on the waterfront. D'Urso explained that if an " ordinary guy wanted to go into the trucking business on the docks, or wanted to open up something on the docks" the Genovese family would " sic the union on the them." Trial Tr. at 877. In short, because the Genovese family " ran the union[s]," it " could bring [a legitimate] business to a screeching halt." Id. ; see also Gov't Ex. TR-CD-3 (T1).

Robert Delaney, a New Jersey State police officer who had participated in an undercover investigation of organized crime on the New Jersey waterfront in the 1970s, corroborated this account with particular reference to Coppola. Delaney testified that while he was posing as the owner of a trucking company, Coppola had represented that he and Fiumara, through " contacts," could provide " labor peace on the waterfront where [Delaney's] trucks were picking up containers." Trial Tr. at 148. Such peace, however, came at a price in the form of " tribute" payments that the Genovese family demanded from both waterfront businesses and unions, payments that Barone testified generated " millions"

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of dollars in income for the enterprise. Id. at 1103. Officer Delaney testified that Coppola and Fiumara had required him to pay a percentage of his trucking profits to them in return for getting business on the waterfront and operating without labor disturbances: " We made percentage and cut payments based on the earnings that the company made.... to Mr. Fiumara's group." Id. at 143. D'Urso, who acknowledged collecting tribute payments for the Genovese family, explained that monies extorted from businesses were sometimes channeled to the enterprise through the unions: " [V]endors who have businesses on the docks" would pay " handouts[,] ... contributions, shakedowns, whatever.... They want to get something done they pay off maybe one of the [union] presidents or somebody close to him, find a way to get this stuff down and expedite it quickly." Id. at 884. Barone confirmed the practice, testifying that Burt Guido, whose business operated on the waterfront, made regular tribute payments to Local 1804-1 officials, who would pass the payments on to Barone.

In addition to monthly tribute payments, the Genovese family demanded " Christmases," special year-end payments from waterfront businesses and unions. D'Urso stated, " during Christmas, people show their appreciation.... [L]egitimate businesses that you help, they usually put together a Christmas package for you.... It's a tribute payment." Id. at 882. The practice was evidenced, inter alia, by a December 12, 1978 recorded conversation between Local 1804-1 vice president Buzzanca and William Montella, the owner of a waterfront business called Quinn Marine, in which Montella told Buzzanca that he had a $2,000 tribute payment and a $5,000 " Christmas" payment for Fiumara. Also, a March 14, 2001 videotape of a meeting between Genovese confederates D'Urso and Cafaro shows the two men discussing Barone's demand for a $90,000-$100,000 " Christmas" payment from Andrew Gigante, another waterfront business owner.

With respect to the Genovese family's extortion of labor unions under their control, a recorded September 14, 1998 conversation shows enterprise confederate Stephen DePiro telling Fiumara, " Christmas time I want double.... I don't...

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