United States v. Cacace

• Citation: 796 F.3d 176
• Decision Date: 05 August 2015
• Docket Number: 14–1649–cr.,Docket Nos. 14–903–cr
• Parties: UNITED STATES of America, Appellee, v. Joel CACACE, John Capolino, aka Johnny Cop, Nicholas Bova, Frank Campione, aka Frankie Camp, Joseph Competiello, aka Joey Caves, Dino Calabro, aka Big Dino, Angelo Giangrande, Orlando Spado, aka Ori Spado, Joseph DiGorga, Michael Catapano, Christopher Curanovic, John Franzese, aka Sonny Franzese, Defendants, Thomas Gioeli, aka Tommy Shots, aka Tommy Machines, Dino Saracino, aka Dino Little, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

796 F.3d 176

UNITED STATES of America, Appellee

v.Joel CACACE, John Capolino, aka Johnny Cop, Nicholas Bova, Frank Campione, aka Frankie Camp, Joseph Competiello, aka Joey Caves, Dino Calabro, aka Big Dino, Angelo Giangrande, Orlando Spado, aka Ori Spado, Joseph DiGorga, Michael Catapano, Christopher Curanovic, John Franzese, aka Sonny Franzese, Defendants

Thomas Gioeli, aka Tommy Shots, aka Tommy Machines, Dino Saracino, aka Dino Little, Defendants–Appellants.

Docket Nos. 14–903–cr

14–1649–cr.

United States Court of Appeals, Second Circuit.

Argued: April 30, 2015.

Decided: Aug. 5, 2015.

Elizabeth A. Geddes (James D. Gatta and David C. James, on the brief), Assistant United States Attorneys, for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

Adam D. Perlmutter (Daniel A. McGuinnes, on the brief), New York, N.Y., for Defendant–Appellant Thomas Gioeli.

Samuel M. Braverman (Jennifer B. Arlin, on the brief), Fasulo Braverman & DiMaggio, Bronx, N.Y., for Defendant–Appellant Dino Saracino.

Before: JACOBS, POOLER, and HALL, Circuit Judges.

Opinion

PER CURIAM:

Defendants-appellants Thomas Gioeli and Dino Saracino appeal from judgments entered by the United States District Court for the Eastern District of New York (Cogan, J. ). Defendants were convicted of crimes they committed as members of the Colombo crime family. On appeal, Gioeli argues that there was insufficient evidence to support his conviction for racketeering conspiracy; that the government suppressed statements made by a confidential source until after trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; that the government seized materials from his home in violation of his Fourth Amendment rights, and the materials should therefore have been suppressed; that two of the three racketeering predicate acts the jury found to have been proven against him were multiplicitous; and that the government's conduct throughout the investigation and prosecution of this case was so outrageous that it violated his due process rights. Saracino argues that the government violated his due process rights under Brady ; that the district court erred in denying his motion to sever his trial; and that the district court violated his constitutional rights at sentencing by taking into account crimes for which he had been acquitted and a crime for which he had not been charged. Defendants seek a judgment of acquittal, or in the alternative, a new trial.

We resolve all of defendants' arguments in the government's favor, and AFFIRM the judgment and all contested decisions issued by the district court.

Background

In May 2008, a grand jury in the Eastern District of New York returned a superseding indictment (“S–1 indictment”) against several individuals alleged to be members of the Colombo crime family, including defendants-appellants Thomas Gioeli and Dino Saracino as well as Joseph Competiello and Dino Calabro.

The S–1 indictment included the following allegations. The Colombo crime family operates in the New York City area and is part of a national crime syndicate known as La Cosa Nostra or the mafia. The mafia is a highly structured organization, and its families operate under a formal internal hierarchy. “Associates” occupy the lowest rung. An associate who is able to survive the often bloody internal politics of the mafia can eventually be selected to become a formal member of the family through a process known as getting “made.” Newly minted members are commonly referred to as “soldiers.” The family is organized into groups of associates and soldiers known as “crews.” Each crew is run by a “captain,” who is responsible for supervising the criminal activities of his crew. The captain provides the members of his crew with support and protection in exchange for a share of each member's earnings. At the top of the pyramid is the “boss.” The boss is assisted by an “underboss” and a counselor, or “consigliore,” and is responsible for setting policy, resolving internal and external disputes, and approving all significant actions.

According to the government's theory of the case and testimony elicited at trial, the relationships of defendants with each other and their involvement with the Colombo family are as follows. Gioeli is a longtime member of the family and was made a captain by the mid–1990s. Calabro, Saracino, and Competiello were associates under Gioeli throughout the 1990s. Calabro became a member in 2000 and was made a captain shortly thereafter. Saracino and Competiello became members in 2004, at which time Saracino reported to Calabro, and Competiello reported to Gioeli. In the mid–2000s, Gioeli became “captain of all captains,” a position he held until his arrest under the S–1 indictment in June 2008.

The landscape of this prosecution was in flux during the months after the filing of the S–1 indictment as the government continued its investigation of the Colombo family. Calabro and Competiello began cooperating with the government, and the individuals named as defendants and the charges against them evolved through a series of superseding indictments filed in June 2008 (“S–2 indictment”), December 2008 (“S–4 indictment”), and July 2010 (“S–6 indictment”). The S–6 indictment includes eight counts and charged Gioeli and Saracino as defendants.¹ Count One charged Gioeli and Saracino with Racketeering Conspiracy, in violation of 18 U.S.C. § 1962(c), and alleged that Gioeli and Saracino engaged in nine and eleven predicate racketeering acts, respectively. The racketeering acts relevant to this appeal are: Racketeering Act 2A, conspiracy to murder Frank Marasa, charged against Gioeli; Racketeering Act 3, conspiracy to murder members of the Orena faction of the Colombo family, charged against Gioeli and Saracino; Racketeering Act 5A, conspiracy to murder John Minerva, charged against Gioeli; and Racketeering Act 9, murder of and conspiracy to murder Richard Greaves, charged against Gioeli and Saracino. Both defendants were also charged with substantive counts of Murder in-aid-of Racketeering for the deaths of Richard Greaves (Count Two), Ralph Dols (Count Three), and William Cutolo (Count Four). In addition, Saracino was charged with Extortionate Extension of Credit Conspiracy (Count Five), Prevention of Testimony (Count Six), Withholding Testimony and Records (Count Seven), and Obstruction of Grand Jury Proceedings (Count Eight).

Among the numerous pretrial motions filed in this case was a motion by Saracino for severance, or in the alternative to empanel a separate jury to determine his guilt—a motion the court denied. The trial began on March 19, 2012 and lasted for several weeks. The parties called dozens of witnesses, including several government cooperators. The jury returned its verdict on May 9, 2012. Gioeli and Saracino were both found guilty of Racketeering Conspiracy based on the jury's finding that the government had proven each defendant's participation in at least two racketeering acts. Specifically, the jury found that the government had proven three racketeering acts against Gioeli (conspiracy to murder Marasa, conspiracy to murder members of the Orena faction, and conspiracy to murder Minerva) and five racketeering acts against Saracino (conspiracy to murder members of the Orena faction, two acts of extortionate extension of credit, conspiracy to murder Michael Burnside, and witness tampering). The jury found Gioeli not guilty on all other counts, and found Saracino guilty on Counts Five through Eight.

In June 2012, Gioeli filed a motion for judgment of acquittal or for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure, arguing, inter alia, that the trial evidence was insufficient to support the verdict, and that Racketeering Acts 3 and 5A were multiplicitous and therefore violated his rights under the Double Jeopardy Clause of the Fifth Amendment.² In July 2013, the district court denied the motion in all respects. In May and June of 2013, however, the government had disclosed statements from a confidential source related to the murders of Greaves and Marasa. Thus, in August 2013, each defendant filed a second Rule 33 motion arguing that his guilty verdict should be vacated and a new trial granted on the ground that the prior non-disclosure of evidence constituted a due process violation of the sort identified in Brady. The court denied the motions in October 2013.

Gioeli received a below-guidelines sentence of 224 months' incarceration. In Saracino's case, the court imposed the statutory maximum term for each count of conviction and ran several of those sentences consecutively, which yielded a final sentence of 50 years' imprisonment. When marshalling and evaluating the factors that must be taken into account pursuant to 18 U.S.C. § 3553(a), the district court found, over Saracino's objection, that Saracino was involved in the murders of Greaves, Dols, and Cutolo, of which he was acquitted, and the murder of Joseph Scopo, for which he had never been charged.³

Defendants raise a number of issues on appeal. Gioeli argues: (1) his guilty verdict was not supported by sufficient evidence; (2) the government's failure to disclose statements by a confidential source until after trial constituted a Brady violation; (3) the government's seizure of certain materials from his home violated the Fourth Amendment, and those materials should have been suppressed; (4) two of the three racketeering acts the jury found to have been proven against him were multiplicitous; and (5) the government's conduct throughout the investigation and prosecution of this case was so outrageous that it violated his due process rights. Saracino also challenges the district court's Brady ruling and further argues: (1) the court erred in denying his motion for severance; and (2) the court violated his constitutional rights at sentencing by, inter alia , taking into account...