U.S. v. Romano, s. 1175

Decision Date24 June 1982
Docket Number1185,Nos. 1175,D,s. 1175
Citation684 F.2d 1057
Parties10 Fed. R. Evid. Serv. 1495 UNITED STATES of America, Appellee, v. Carmine ROMANO and Peter Romano, Defendants-Appellants. ockets 82-1052, 82-1054.
CourtU.S. Court of Appeals — Second Circuit

Robert Lewis Cohen, New York City, for defendant-appellant Peter romano.

Norman A. Olch, New York City (Dolan, MacMahon & Martine, New York City, Louis J. Martine, New York City, of counsel; William Lupo, Legal Asst.), for defendant-appellant Carmine Romano.

Daniel H. Bookin, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., S. D. N. Y., Andrew J. Levander, Walter P. Loughlin, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before LUMBARD, MOORE and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Carmine and Peter Romano appeal from judgments of conviction entered on February 5, 1982, in the Southern District of New York, following a jury trial presided over by the Hon. Lee P. Gagliardi. The Romanos were convicted for their roles in a racketeering conspiracy to extract protection money from the wholesalers in the Fulton Fish Market. They accomplished this through their control of the union representing the workers in the market. Specifically, both defendants were convicted of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d); of violating RICO, 18 U.S.C. § 1962(c); and of aiding and abetting violations of the Taft-Hartley Act, 29 U.S.C. § 186(b)(1) and 18 U.S.C. § 2. In addition, Carmine Romano was convicted of misusing union pension funds, 18 U.S.C. § 1954 and 18 U.S.C. § 2; and Peter Romano was convicted of obstruction of justice, 18 U.S.C. § 1503, and perjury before a grand jury, 18 U.S.C. § 1623. Prior to jury deliberations, the government dropped one count of extortion, 18 U.S.C. § 1951, charged against Carmine. The court sentenced Carmine to twelve years in prison and a fine of $20,000; Peter received a sentence of eighteen months' imprisonment. Finding no errors in the district court's rulings of law or in its conduct of the trial, we affirm.

In October 1981, the Romanos were charged in a 167-count indictment. Their alleged co-conspirators were severed prior to trial and the Romanos were tried on a redacted indictment of 94 counts.

Count One charged the defendants with conspiring to conduct the affairs of the Fulton Fish Market through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). The predicate acts of racketeering activity were alleged to include "among other things, acts of extortion in violation of Title 18, United States Code, Sections 1951 and 2; payment and receipt of illegal labor payments in violation of Title 29, United States Code, Section 186 and Title 18, United States Code, Section 2; misuse of welfare and pension plan funds in violation of Title 18, United States Code, Sections 1954 and 2; and obstruction of justice in violation of Title 18, United States Code, Section 1503."

Among the objects and means of the conspiracy, it was charged that the defendants: (1) "would and did request and receive through, among other things, the use of fear, cash payments and other things of value from businesses in the Fulton Fish Market;" (2) "would and did request and receive through, among other things, the use of fear, approximately $66,450 from businesses in the Fulton Fish Market, supposedly in return for renting cardboard signs stating that said businesses employed members of Local 359;" (3) "did request and receive through, among other means, the use of fear, payments from businesses in the Fulton Fish Market in return for 'protection' against thefts and robberies, and did operate a protection service known as the Fulton Patrol Service ...;" and (4) "received for their own use and the use of their relatives and friends numerous things of value in return for depositing the funds of the Fulton Fish Market Welfare and Pension Funds into a particular bank."

Count Two charged the defendants with a substantive RICO violation, 18 U.S.C. § 1962(c). The predicate acts of racketeering activity alleged were the receipt by Carmine and Peter Romano of illegal payments in violation of 19 U.S.C. § 186(b)(1); the misuse of union pension funds by Carmine Romano, in violation of 18 U.S.C. § 1954; and the obstruction of justice by Peter Romano in violation of 18 U.S.C. § 1503.

Carmine was also charged with twelve counts of violating 18 U.S.C. § 1954 and 18 U.S.C. § 2 in connection with the receipt by him and others of television sets from the Republic National Bank as gifts for sponsoring the opening of new accounts with moneys from the union pension fund.

Counts Fifteen through Sixty and Sixty-one through Ninety-one charged Carmine and Peter respectively with aiding and abetting violations of the Taft-Hartley Act in connection with the rental of cardboard union signs to employers in the Fulton Fish Market for $300 per year. 29 U.S.C. § 186(b)(1); 18 U.S.C. 2.

Carmine was also charged with one count of personally receiving a payment of $300 from the Booth Fisheries Co. in violation of 29 U.S.C. § 186(b)(1). Prior to submission of the case to the jury, the court dismissed, at the prosecutor's request, a count charging Carmine with extortion, 18 U.S.C. § 1951, in connection with the receipt of that payment after the witness to that count failed to testify.

Finally, Peter was charged with perjury before the grand jury, 18 U.S.C. § 1623, and with obstruction of justice, 18 U.S.C. § 1503, in connection with his false statement that he did not possess any materials responsive to a subpoena duces tecum related to the union sign rentals.

I.

The Fulton Fish Market, located just south of the Brooklyn Bridge in lower Manhattan, is the source of most of the fresh fish sold in New York. Every day from about 2 a. m. to about 8 a. m. the market is packed with trucks delivering their perishable cargoes and with customers (mostly retailers and restaurateurs) picking up their day's requirements. The market is composed of two buildings, Old and New Markets, which together house about 80 wholesalers. The approximately 800 employees of these wholesalers, who are members of Local 359 of the United Seafood Workers Union, handle the fish from the time it arrives in the market until the time that it leaves.

Carmine Romano was the Secretary-Treasurer of Local 359 from May 1974 until May 1980, when his brother, Peter Romano, took over. Carmine then assumed a newly created position (at $650/week) as the Executive Administrator of the Fulton Fish Market Welfare and Pension Trust Funds ("pension fund").

In 1975, the association of wholesalers located in the New Market, the New York Wholesale Fish Dealers Association ("Fish Dealers"), approached Carmine Romano for assistance in stopping the thefts plaguing the market. The existing watchmen's service was ineffective, and the Fish Dealers thought that Carmine would be able to protect them. The president of the Fish Dealers testified that "I figured that if the thieves knew that the union was looking out for us, that they wouldn't bother us.... Because they would be afraid of the union."

Shortly thereafter, Carmine created a watchmen's service called the Fulton Patrol Service. Although Carmine's name did not appear on any of the documents related to the Fulton Patrol, ample evidence tied him to the Patrol. For example, he presented the plan to the wholesalers and settled claims for reimbursement by companies that suffered thefts.

The Fish Dealers hired the Fulton Patrol Service for $1300 per week and the number of thefts in the New Market dropped dramatically. However, the Old Market, which had not hired the Fulton Patrol Service, continued to suffer high theft rates. Accordingly, in 1977 the Fulton Fishmongers Association (composed of the merchants located in the Old Market) ("Fishmongers") also hired the Fulton Patrol Service. Soon thereafter, the Old Market saw its pilferage rate drop. Between November 1975 and October 1981, the Fulton Patrol Service collected over $644,000 from the wholesale fish merchants located in the Fulton Fish Market.

Viewing the evidence in the light most favorable to the government, the jury could well have concluded that the Fulton Patrol's success in stemming the tide of thefts was due to the influence that Carmine and his co-conspirators exerted over the thieves in the market and not to the quality of its watchmen service. The deficiencies in the Patrol's operations were manifest. For example, one of the Patrol's watchmen (the brother-in-law of John Pontebbi, the man who ran the Patrol's day-to-day operations) was a kleptomaniac who was known to steal fish from the market himself. A number of watchmen listed on the payroll (and whose checks were regularly cashed by union employees) did not exist. One watchman who did exist and who patrolled on Friday and Saturday nights had previously performed the same services for the prior, unsuccessful watchmen's service. He testified that he knew of only one other watchman who actually worked for the Patrol. Finally, a woman friend of Carmine's was paid $200 per week to receive "less than one call a week" from watchmen not reporting for work.

Substantial evidence also demonstrated the union's influence over the market's thieves. For example, Pontebbi put a former union delegate, Anthony O'Connor (charged in the indictment as a co-conspirator and presently a fugitive from justice), on the payroll because he thought O'Connor knew who the thieves were and could recover any fish that were stolen. Carmine's brother, Vincent Romano, was hired for the same reason at $450 per week. Although Pontebbi claimed that O'Connor and Vincent Romano were hired to watch the other watchmen, none of the men who actually patrolled Fulton Market ever saw either man there.

Companies that suffered thefts came to Carmine Romano when the...

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