763 F.2d 1504 (6th Cir. 1985), 83-3288, United States v. Gallo

Docket Nº:83-3288 to 83-3290, 83-3292, 83-3339, 83-3803 and 83-3804.
Citation:763 F.2d 1504
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph C. GALLO; Frederick Graewe; Hartmut Graewe, Kevin Joseph McTaggart; Angelo A. Lonardo, Defendants-Appellants.
Case Date:May 29, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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763 F.2d 1504 (6th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph C. GALLO; Frederick Graewe; Hartmut Graewe, Kevin

Joseph McTaggart; Angelo A. Lonardo, Defendants-Appellants.

Nos. 83-3288 to 83-3290, 83-3292, 83-3339, 83-3803 and 83-3804.

United States Court of Appeals, Sixth Circuit

May 29, 1985

Argued Nov. 8, 1984.

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Alan P. Caplan (argued), Cleveland, Ohio, for Joseph C. Gallo and Kevin Joseph McTaggart.

Donna M. Congini, Cleveland, Ohio, William C. Bryson (argued), Washington, D.C., Steven R. Olah, Donna M. Congeni, Gregory B. English, Asst. U.S. Attys., Cleveland, Ohio, for the U.S.

Edward F. Marek (argued), Public Defender, Cleveland, Ohio, for Frederick Graewe.

Paul Mancino, Jr. (argued), Cleveland, Ohio, for Hartmut Graewe.

Leonard W. Yelsky (argued), Cleveland, Ohio, for Angelo Lonardo.

Before MERRITT, WELLFORD and MILBURN, Circuit Judges.

WELLFORD, Circuit Judge.

On appeal from their convictions on Racketeer Influenced and Corrupt Organization Act ("RICO"), Continuing Criminal Enterprise ("CCE"), and related counts, Joseph Gallo, Frederick ("Fritz") Graewe, Hartmut ("Hans") Graewe, Kevin McTaggart, and Angelo Lonardo, raise a total of thirty-five issues in the four appellant briefs filed. 1 There are overlapping issues, however, and we will address how the issues relate to each of the appellants.

Following a jury trial in the United States District Court for the Northern District of Ohio (Manos, J.), the five appellants were convicted on a variety of charges relating to their participation in murder, narcotics distribution, and gambling in the Cleveland, Ohio area. The jury found appellants Gallo, Hans Graewe, and McTaggart guilty of racketeering conspiracy, in violation of 18 U.S.C. Sec. 1962(d) (count 1). The jury also found those three appellants and Lonardo guilty of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848 (count 2). The jury further found all of the appellants, including Fritz Graewe, guilty of aiding racketeering

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through interstate travel, in violation of 18 U.S.C. Sec. 1952 (counts 3 through 21), possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (count 35), and using the telephone to facilitate a narcotics offense, in violation of 21 U.S.C. Sec. 843(b) (counts 40 through 48, 50 through 51, 53 through 55, and 57 through 58). 2

Gallo, Hans Graewe, McTaggart, and Lonardo all were sentenced to life imprisonment on the continuing criminal enterprise count. In addition, Gallo, Hans Graewe, and McTaggart received concurrent sentences of 20 years' imprisonment on the racketeering conspiracy count. On each of the Travel Act counts, the district court sentenced each appellant to consecutive terms of five years' imprisonment. On the cocaine possession count, the court imposed a consecutive sentence of 15 years' imprisonment on appellants Gallo, Hans Graewe, and McTaggart, and 10 years' imprisonment on appellant Fritz Graewe. For the unlawful use of the telephone counts, the court imposed consecutive four year terms on Gallo, Hans Graewe, McTaggart, and Lonardo; two years' imprisonment on Fritz Graewe.

All five defendants appeal their convictions and the denial of their motions for new trial, which they filed while the appeal was pending.

I. FACTUAL BACKGROUND

We set out the facts in the light offered by the government and as apparently believed by the jury in reaching its verdicts.

Between 1978 and 1982, appellants and others conspired to control the businesses of gambling 3 and narcotics distribution in the city of Cleveland, Ohio. During that period, they fashioned an agreement between rival criminal factions on the east and west sides of the city, whereby they would jointly control and profit from their control of criminal activities. The evidence indicates that Lonardo was one of the leading directors and investors in the profitable but illicit joint enterprise, that Gallo was a high-level supervisor, and that Hans Graewe, McTaggart, and Fritz Graewe were regular participants in various criminal activities of the enterprise.

The chief witness for the government was Carmen Zagaria, a co-conspirator and coordinator of the enterprise's business activities. He testified in detail about the roles played by defendants and others in narcotics and gambling activities, as well as in violence and intimidation on behalf of the enterprise, which included at least seven murders during the four-year period covered by the indictment. The government called other co-conspirators as witnesses who testified about the criminal activities of the enterprise. The government introduced surveillance evidence and physical and wiretap evidence, which corroborate these witnesses' testimony concerning murders and defendants' roles in gambling and narcotics activities.

In January, 1978, Zagaria started dealing in marijuana. He began with small quantities, buying marijuana in one pound lots

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and selling it by the ounce, utilizing his tropical fish store on Lorain Avenue in Cleveland as a base of operations. Early in 1978, Zagaria met with Keith Ritson, 4 another marijuana dealer; Zagaria and Ritson agreed to cooperate by supplying each other with marijuana as needed. Ritson told Zagaria that McTaggart was selling cocaine and marijuana for him.

In May 1978, Zagaria sought to expand his marijuana business by finding investors for the business and by purchasing large quantities of marijuana in Florida. He agreed with Ritson to obtain marijuana in large lots, from which he would supply a portion of each shipment to Ritson for local distribution.

At about the same time, Hans Graewe told another co-conspirator, James Coppola, that he was looking for a place to invest some money to make a quick profit. Graewe told Coppola that he had succeeded in "ripping off" one Orville Keith for $20,000 in a narcotics transaction. When Keith realized that he had been "ripped off," he began trying to force Graewe to return his money. Graewe told Coppola that he intended not only to keep the money but also to kill Keith to prevent any further bother about it. 5

At Coppola's suggestion, Graewe then invested $14,000 of the stolen funds in Zagaria's marijuana business, and Zagaria agreed to pay him $1500 per week on this investment. In addition, Graewe's brother, Fritz Graewe, agreed to sell marijuana for Zagaria. For the next four years, Fritz regularly purchased marijuana from Zagaria's operation for resale; Hans also sold some of Zagaria's marijuana, and he found other drug salesmen for Zagaria's expanding marijuana business.

Several months later, Zagaria repaid $8000 to Hans who said that he was going to buy a farm with the money; in fact, he subsequently acquired a nearby farm. Several months later, Zagaria made another repayment on Graewe's investment by supplying him an ounce of cocaine and an amount of cash. In addition to these payments, Zagaria paid regular installments to Hans as originally agreed.

Between 1974 and 1978, James Coppola worked as the overseer of a Barboot 6 game located on Broadview Road in Cleveland. In that capacity, Coppola testified, he was working for the "west side" group, which included Ritson, Brian O'Donnell, McTaggart, and Danny Greene. The game came to an end in 1978 shortly after Danny Greene was killed in a bombing incident. 7

In the summer of 1978, Thomas Sinito 8 aproached Coppola and proposed to start a Barboot game that would be jointly sponsored by the rival groups of the east and west sides of Cleveland. Sinito proposed to "split the money and try to stop all this fighting between the east side and the west side." Sinito was a member of the "east side" group, which controlled gambling on the east side of Cleveland.

The representatives of the west side group, including Zagaria, Ritson, and Hans Graewe, agreed to go along with Sinito's proposal to "end all the fighting and have a mutual gambling operation which would benefit both sides of town, keep everybody happy, and split [sic] the profits." Accordingly, Zagaria, Coppola, Hans Graewe, Ritson, and three other men arranged one night to close down the two competing games. They closed the first game without difficulty, and they took over a second

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game, which was then being run in downtown Cleveland. Zagaria and Ritson had sledge hammers with them when the group went to close the competing games, but Coppola told them, "We don't need no sledge hammers. These are all old guys." Coppola let the operator of the second game continue to run the game for the next week in order to try to recoup some of his expenses. He told the man, however, that "next week it is ours."

After Coppola's group took over the downtown Barboot game, the two groups split the profits from the game evenly; in addition, Sinito directed Coppola to give 10 percent of the proceeds to Carmen Basile, the owner of a bar on Cleveland's west side. When Coppola questioned that decision, Sinito replied, "Don't ask questions; just out of respect for the old man, we will give him 10 percent."

In compliance with Sinito's instructions, Coppola began giving Basile 10 percent of the receipts from the Barboot game. Basile, however, regularly charged that he was being cheated, and he and Coppola constantly bickered over the amount of Basile's share. Ultimately, Sinito arranged a meeting to resolve the dispute. Appellant Gallo attended the meeting and told Coppola that Basile was going to supervise Coppola, and that Coppola would be Basile's "underboss." Basile subsequently referred...

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