726 F.2d 913 (2nd Cir. 1984), 82-1398, United States v. Ruggiero

Docket Nº:82-1398 and 82-1399.
Citation:726 F.2d 913
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Benjamin RUGGIERO, Nicholas Santora, Anthony Rabito, and Antonio Tomasulo, Defendants-Appellants. Nos. 1158, 1362, 1168 and 1363, Docket 82-1395, 82-1396,
Case Date:January 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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726 F.2d 913 (2nd Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Benjamin RUGGIERO, Nicholas Santora, Anthony Rabito, and

Antonio Tomasulo, Defendants-Appellants.

Nos. 1158, 1362, 1168 and 1363, Docket 82-1395, 82-1396,

82-1398 and 82-1399.

United States Court of Appeals, Second Circuit

January 18, 1984

Argued April 26, 1983.

Final Briefs Submitted Nov. 3, 1983.

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[Copyrighted Material Omitted]

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Barbara S. Jones, Asst. U.S. Atty., S.D.N.Y., New York City (John S. Martin, Jr., U.S. Atty., S.D.N.Y., Gerard E. Lynch, New York City, of counsel), for plaintiff-appellee.

Robert Koppelman, (Edward M. Chikofsky, Rosso Silverman & Vitaliano, of counsel) New York City, for defendant-appellant Ruggiero.

Frank A. Lopez, Brooklyn, N.Y. (Meyer & Light, Brooklyn, N.Y., of counsel), for defendant-appellant Santora.

Paul Rao, Jr., New York City, for defendant-appellant Rabito.

Irwin Klein, New York City, for defendant-appellant Tomasulo.

Before NEWMAN and PRATT, Circuit Judges, METZNER, District Judge. [*]

GEORGE C. PRATT, Circuit Judge:

Appellants Benjamin Ruggiero, Nicholas Santora, Antonio Tomasulo, and Anthony Rabito appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, after a six-week jury trial before Hon. Robert W. Sweet. Their indictment and convictions resulted from a six-year investigation into the Bonanno organized crime family that had uncovered evidence of a wide range of criminal activities, including murder, gambling, narcotics distribution, and armed robbery.

The indictment charged ten defendants in various combinations under four counts. Count One charged a RICO conspiracy under 18 U.S.C. Sec. 1962(d) (1982), part of the Racketeer Influenced and Corrupt Organizations Act. It alleged that all ten defendants had conspired to participate in the affairs of an enterprise, the Bonanno organized crime family, through a pattern of racketeering activity in violation of Sec. 1962(c). The alleged pattern of racketeering activity consisted of 13 separate conspiracies to violate various state and federal laws involving the defendants in various combinations. They were charged with conspiring to murder, to receive stolen goods, to steal goods in interstate commerce, to rob various people, to distribute methaqualone, and to run an illegal gambling business. Count Two charged the appellants, together with John Cerasani and Vincent Piteo, with a substantive RICO violation under Sec. 1962(c). The alleged pattern of racketeering consisted of the substantive crimes which were the subjects of nine of the predicate conspiracies charged under Count One. Counts Three and Four charged appellants Rabito and Santora, together with James Episcopia, with substantive and conspiracy offenses of possessing and distributing methaqualone under 21 U.S.C. Secs. 841 and 846 (1982).

Five of the defendants named in the indictment were not tried. Piteo pled guilty to reduced charges before trial, and his conviction is being affirmed by a simultaneously filed opinion. Episcopia's trial was severed. The government entered an order of nolle prosequi against Dennis Mulligan. Joseph Messina and Dominick "Sonny Black" Napolitano did not appear for trial, and the New York City Police Department subsequently confirmed that Napolitano had been murdered.

At trial Cerasani was acquitted on all counts. Appellant Ruggiero was convicted of the RICO conspiracy and acquitted of the RICO substantive charge. Appellant Santora was convicted of both RICO charges and the narcotics conspiracy, but acquitted on the narcotics substantive count. Appellant Rabito was acquitted on the RICO conspiracy, but convicted on both narcotics counts. Appellant Tomasulo was convicted of the RICO conspiracy. Thus, on the RICO conspiracy count the jury convicted Ruggiero, Santora, and Tomasulo; on the RICO substantive count it convicted only Santora; on the narcotics conspiracy count it convicted Santora and Rabito; and on the narcotics substantive count it convicted only Rabito.

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This appeal focuses primarily on two issues involving predicate acts for the RICO conspiracy count. The first issue is whether in a RICO conspiracy prosecuted under 18 U.S.C. Sec. 1962(d) it is permissible for the government to use a conspiracy to commit murder as one of the predicate acts of racketeering activity. We hold that it is. The other issue is whether it is permissible similarly to use a conspiracy to conduct an illegal gambling operation in violation of 18 U.S.C. Sec. 1955. We hold that it is not. There is no merit to any of the other individual or collective claims of error.

I. FACTS

  1. The Undercover Operations

    Beginning in 1976, special agent Joseph Pistone of the FBI began an undercover assignment to infiltrate "fences"--persons who receive stolen goods--associated with organized crime in New York City. Using the name "Donnie Brasco", Pistone assumed the identity of a burglar and jewel thief. In this undercover role, Pistone met appellant Ruggiero, who was affiliated with the Bonnano crime family. Pistone placed bets with and helped Ruggiero make collections for a bookmaking operation run by Ruggiero out of his social club in lower Manhattan. In 1977 Ruggiero confided to Pistone that he had become a "made" member of the Bonnano organized crime family of La Cosa Nostra. He later introduced agent Pistone to various members of the Bonanno family, who were engaged in a variety of criminal activities, primarily in New York City and Tampa, Florida.

    Pistone learned that the boss of the family was Carmine Galante, later succeeded by Philip "Rusty" Rastelli, and that the family was organized into five divisions or "crews", each of which was headed by a captain. Ruggiero was a member of Mike Sabella's crew, later captained by codefendant Napolitano. Although transferred by the FBI out of New York in January of 1978, Pistone still kept in frequent contact with Ruggiero.

    Meanwhile, FBI agent Edgar Robb assumed an undercover identity in an unrelated investigation in Florida. Using the name "Tony Rossi", Robb, along with other agents, opened the "King's Court Bottle Club" in Holiday, Florida to obtain evidence of criminal activity there.

    In March 1980, at agent Pistone's suggestion, Ruggiero met agent Robb at the King's Court, ostensibly to enable Robb to seek Ruggiero's assistance in expanding his operations, and to reduce pressure from other organized crime members. Ruggiero agreed to help and to provide agent Robb "peace of mind"--in exchange for $3,000 plus $250 a week.

    In April 1980, Ruggiero returned to the King's Court with Napolitano, who had replaced Sabella as Ruggiero's captain. Napolitano ordered agents Pistone and Robb to become involved in loan sharking and bookmaking on his behalf.

    Napolitano operated his crew from a social club on Graham Avenue in Brooklyn, called the Motion Lounge, where Pistone on several visits met various members of Napolitano's crew, including codefendants Santora, Cerasani, and Tomasulo. Tomasulo ran a bookmaking operation from the Capri Car Service, located diagonally across the street from the Motion Lounge.

  2. Electronic Surveillance and Other Investigatory Techniques

    The government made extensive use of electronic surveillance during the course of its investigations. Agent Pistone was "wired" with a transmitter during many of the encounters he had with the defendants. The government also placed a series of authorized wiretaps on the telephones of appellants Rabito, Napolitano, Tomasulo, and Ruggiero. In addition, FBI surveillance followed Rabito and photographed him on occasion.

  3. The Conspiracies to Murder

    Through Ruggiero, agent Pistone learned that in 1981 the five Bonanno captains, Napolitano, Joseph Messina, Philip Giaccone, Alphonse Indelicato, and Dominick Trinchera, were embroiled in a dispute over

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    control of the family. Napolitano and Messina remained loyal to Rastelli, who was in prison; aligned against them were Giaccone, Indelicato, and Trinchera, who sought to wrest control of the family from Rastelli.

    On May 5, 1981, the three rebel captains were lured to a meeting and murdered. Indelicato's body was discovered in a vacant lot in Queens, but the bodies of Giaccone and Trinchera were never found. The evidence did not conclusively establish who actually was responsible for the murders, but Napolitano, Ruggiero, Rabito, and Messina were all strongly implicated.

    For instance, agent Pistone had tried to reach Ruggiero by telephone on May 5, 1981, the day of the murders, but was unable to do so. Three days later FBI surveillance identified Ruggiero leaving Rabito's apartment with two other men, all carrying suitcases, and they all drove away in a car registered to Santora. That same day, May 8, 1981, agent Pistone spoke to Ruggiero in a taped conversation. Ruggiero explained that he had "come in" because his wife had not packed him enough clothes, and then told Pistone that he would be gone "awhile yet", but proclaimed that "everything is fine, we're winners", and that a "lot of punks ran away--but--they came back--we gave them sanctuary." He added, there was "one more situation" they had to take care of. On another occasion Ruggiero stated that he, Santora and two others were at the "hit". He also complained that Messina was supposed to take care of Indelicato's body but had "screwed it up". In addition, both Ruggiero and Santora described details of the shooting of Trinchera.

    On May 12, 1981, Ruggiero told agent Pistone that Napolitano wanted to see him in New York. At the meeting Napolitano told Pistone, "we took care of those three guys, they're gone", but that Indelicato's...

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