U.S. v. Cagnina
| Decision Date | 10 February 1983 |
| Docket Number | No. 81-5709,81-5709 |
| Citation | 697 F.2d 915 |
| Parties | 12 Fed. R. Evid. Serv. 492 UNITED STATES of America, Plaintiff-Appellee, v. Sam CAGNINA, a/k/a "Sam", "Fat Man", "Charles Lawton", Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Alan I. Karten, Miami, Fla., for defendant-appellant.
William C. Bryson, Joel Gershowitz, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.
Sam Cagnina was convicted of a variety of crimes, including violation of the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C.A. Sec. 1962(c), (d). On appeal he claims (1) the Government failed to prove the "enterprise" element of a RICO offense, (2) misjoinder, (3) the district court erred in admitting declarations by unindicted co-conspirators, (4) the district court erred in denying his request for the Government to produce prior testimony of witnesses, and (5) consecutive sentences should not have been imposed for the RICO conspiracy and the substantive RICO offense. We affirm.
Cagnina was indicted with eleven others in 1978. Because he was not arrested until 1980, he was tried alone. The jury found Cagnina guilty of conspiracy to violate RICO, 18 U.S.C.A. Sec. 1962(d); a substantive RICO offense, 18 U.S.C.A. Sec. 1962(c); uttering counterfeit securities of the United States, 18 U.S.C.A. Sec. 472; conspiracy to utter counterfeit securities, 18 U.S.C.A. Sec. 371; possession of cocaine with intent to distribute, 21 U.S.C.A. Sec. 841(a) and 18 U.S.C.A. Sec. 2; truck hijacking, 18 U.S.C.A. Sec. 659; and stealing property of the United States, 18 U.S.C.A. Sec. 641. Cagnina was sentenced to a total of 45 years imprisonment with a subsequent special parole term of five years.
A brief review of some of the facts is helpful in evaluating Cagnina's contention that the Government failed to prove the existence of an "enterprise." In considering the facts, the evidence is viewed in the light most favorable to the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The acts recited below were committed during the years 1971 to 1977. Much of the evidence was presented through the testimony of Cagnina's co-conspirators and colleagues in the criminal activity.
Cagnina met Clyde Lee, who picked up lottery tickets and collected and paid bets for Harlan Blackburn, at a meeting arranged by Blackburn. Blackburn asked Lee to wait with Cagnina while he went home to retrieve $10,000 to pay for narcotics Cagnina had brought. After waiting for a while in Lee's car, Cagnina said he was leaving and began to drive away in his car when he stopped and shot at Lee. Several months later Cagnina and Pico Lopez, his partner in the drug business, asked Louis Llerandi to take a $10,000 contract to kill Lee. They said Lee was an informant and that Cagnina had shot at Lee but failed to kill him. The next month Llerandi shot Lee several times while Lee was in a phone booth near his home. Llerandi was paid only $5,000 because Lee did not die.
Two years later a Tampa police officer conducting an investigation of homicides perpetrated by Blackburn interviewed Cagnina. Cagnina denied committing any of the murders but claimed he would commit murder "if the price was right." He also stated that he associated with people who were willing to murder for money.
Later that year Llerandi offered Cagnina $10,000 to kill Lopez because Llerandi believed Lopez was responsible for beating and robbing his drug partner of two kilos of cocaine. Cagnina agreed to take care of it. Later Llerandi gave Cagnina $500 to buy a triggering device for a bomb, and a few days later a bomb in Lopez's car exploded. Lopez and a woman sitting in the car with him were thrown from the car, but neither was killed. Llerandi paid Cagnina $6,500.
Cagnina and Llerandi helped Donald Becker and George Webber, Miami massage parlor operators, to open a massage parlor in Tampa. They located a suitable building and, in meetings attended by Ronald Yaras, negotiated for weekly payment of money in exchange for "protection" against problems with local law enforcement. When the Tampa police raided the massage parlor and Becker was forced to hire an attorney to reinstate the license, he protested the payments to Cagnina, who insisted that the payments continue.
Cagnina and Llerandi introduced Becker to Terry Lee Garcia, who helped Becker open a massage parlor in Key West for Yaras. When the Key West business failed to make money, Yaras suggested to Llerandi that he contact Cagnina about burning it since it was insured. On Llerandi's recommendation Cagnina agreed to arrange with Junior Hernandez to burn the Key West massage parlor. Shortly thereafter it was burned.
Hernandez asked Jeffrey Moon to help him burn the Magic Fingers, a massage parlor in competition with Becker's and Webber's Tampa massage parlor. Hernandez told Moon he had unsuccessfully firebombed the Magic Fingers before. He assured Moon that they would be paid $1,500 for the job and that they could choose to be paid partially in drugs. Moon and Dwight Davis splashed gasoline inside the building, and it was ignited by the pilot light of a heater. Hernandez, Moon and Davis drove to Miami to collect payment from Cagnina, and received $100.
Cagnina told Llerandi that Yaras had separated from his wife and that Yaras wanted to have her "beaten, raped, and shot up with dope." Cagnina also stated that this presented a good opportunity to kill Yaras. Shortly thereafter Cagnina informed Llerandi that he had Garcia kill Yaras, and that Llerandi had become "the protector of the massage parlors in Miami." The next day Garcia told Llerandi how he had shot Yaras.
George Webber disappeared, and after a few days Becker sought Cagnina's help in finding him. Several days later Cagnina summoned Becker to his house, threw him a set of keys, and told him he had a new partner. While Webber had been in Orlando preparing to open a new massage parlor, Garcia and two other men had driven him to a desolate place, shot him in the head, and driven the body to Miami. There Cagnina and Garcia put Webber's body in the trunk of the car and drove the car into a rock pit.
Hernandez told Albert Lyons he could make money hijacking trucks, and gave him the Miami telephone number of a man named "Sam" to be called after he and Richard Gatlin stole a truck loaded with groceries. Lyons and Gatlin stole a truck in Tampa, drove it to Miami, and called the telephone number. Cagnina and Garcia then met Lyons and Gatlin and led them to the Esmeralda Market. Lyons and Gatlin were paid $2,000 by Cagnina and $4,000 by Garcia. Cagnina instructed them to steal canned goods or meat in the future instead of the baked goods they had delivered and to deal directly with him rather than going through Hernandez.
Lyons and Gatlin next stole a truckload of beer in Tampa. When Cagnina could not be reached by telephone, they called Ramon Dorta, owner of the Esmeralda Market, as Cagnina had directed them. Because the baked goods had not sold well, Lyons and Gatlin received only $2,000 for the beer. The third load Lyons and Gatlin drove to Miami was pork, stolen from a wholesale distributor. Dorta refused to pay more than fifteen cents a pound even though Cagnina had told Lyons and Gatlin they would be paid fifty cents a pound for meat. Therefore, after unloading part of the load into a van procured by Dorta, they sold the remainder of the load to another market. Lyons and Gatlin stole a truck loaded with beef from a motel parking lot in Tampa. After driving it to Miami, they failed to reach either Cagnina or Dorta by telephone. Both Gatlin and Lyons were arrested, so no delivery was made.
Cagnina telephoned Hernandez and said he needed a load of eggs. At Hernandez's direction, Jeffrey Moon hijacked a truckload of eggs worth $1,385. The eggs were property of the United States government. Moon, Hernandez, and Davis drove the eggs to Miami. On the way, Hernandez telephoned Cagnina, who told him to deliver the eggs to the Esmeralda market. Dorta paid Hernandez $1300 for the eggs.
Alberto Porro carried a bowling bag into Cagnina's house and placed it in a closet. Later, he repacked the bag in Cagnina's presence. The bag contained a large glassine envelope of cocaine. Silvio LaPace purchased cocaine at Cagnina's house. On one occasion, Cagnina took cocaine to Charles Kabbaby's house, where it was used by Cagnina, Kabbaby, LaPace, Bobby Mix and others.
The following year, at Kabbaby's direction, Mix prepared a boat to go to South America to pick up marijuana. Cagnina told Mix that he would make sure Mix got paid for his work on the boat. The boat sank en route to South America. Later Kabbaby said that Cagnina was to pay Kabbaby $30,000 if the boat sank.
Cagnina told Mix that he had a quantity of marijuana he wanted to sell. Mix contacted a friend in Washington, D.C., who said he had friends who could sell it. The marijuana was transported to Washington in increments over a two or three week period. Twice a week, Cagnina went to Mix's house to pick up the proceeds from the marijuana sale. Cagnina sometimes delivered cocaine on these visits.
On another occasion, LaPace agreed to arrange the sale of a quantity of cocaine to James Harris, an undercover DEA agent. LaPace told Harris that two of his sources for cocaine were Cagnina and Kabbaby. Harris purchased four ounces of cocaine from Kabbaby for $5,600. A few days later, LaPace told Harris that Cagnina and Kabbaby were associates in the drug business, that LaPace had introduced them to each other, and that they were involved in the importation of cocaine and marijuana from Colombia. LaPace later sold Harris four ounces of...
To continue reading
Request your trial
-
State v. Ball
... ... See, e.g., United States v ... Page 159 ... Cagnina, 697 F.2d 915, 921 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983); United States v. Pelullo, 964 F.2d 193, 212 (3rd ... ...
-
U.S. v. Pepe
...described in the indictment, or knew his fellow conspirators, or was aware of all the details of the conspiracy. See United States v. Cagnina, 697 F.2d 915, 922 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). That each conspirator may have contemplated partic......
-
U.S. v. Silva
...the Government was in possession of the Florida grand jury material. The Jencks Act would therefore not apply. United States v. Cagnina, 697 F.2d 915, 922-23 (11th Cir.1983).5 The converse of this situation was at issue in Illinois v. Abbott & Associates, 460 U.S. 557, 103 S.Ct. 1356, 75 L.......
-
U.S. v. Zielie
...that "reading an enterprise limitation into Sec. 1963(a)(1) renders that section surplusage." Id. at 955; Cf. United States v. Cagnina, 697 F.2d 915 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983) (enterprise can include informal criminal network engaged i......