U.S. v. Daly
| Decision Date | 28 March 1988 |
| Docket Number | D,Nos. 295,294,s. 295 |
| Citation | 842 F.2d 1380 |
| Parties | 127 L.R.R.M. (BNA) 3238, 108 Lab.Cas. P 10,412, 25 Fed. R. Evid. Serv. 350 UNITED STATES of America, Appellee, v. George DALY and Louis Giardina, Defendants-Appellants. ockets 87-1257, 87-1258. |
| Court | U.S. Court of Appeals — Second Circuit |
Douglas Grover, Sp. Atty., U.S. Dept. of Justice, Organized Crime Strike Force, Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the E.D. New York, Brooklyn, N.Y., Laura Ward, Sp. Atty., U.S. Dept. of Justice, Brooklyn, N.Y., Louis M. Fischer, Deborah Watson, U.S. Dept. of Justice, Washington, D.C., on the brief), for appellee.
James Kousouros, New York City (William F. Suglia, New York City, on the brief), for defendant-appellant Daly.
James M. LaRossa, New York City (John W. Mitchell, LaRossa, Mitchell & Ross, New York City, on the brief), for defendant-appellant Giardina.
Before KEARSE, PIERCE, and PRATT, Circuit Judges.
Defendants George Daly and Louis M. Giardina appeal from judgments entered in the United States District Court for the Eastern District of New York, following a jury trial before Jack B. Weinstein, Chief Judge, convicting Daly on two counts of accepting bribes in violation of the Taft-Hartley Act, 29 U.S.C. Secs. 186(a)(2) and (b)(1) (1982); and convicting Giardina on one count of aiding and abetting Daly in receipt of a bribe, in violation of 29 U.S.C. Secs. 186(a)(2) and (b)(1) and 18 U.S.C. Sec. 2 (1982); one count of obstructing a criminal investigation, in violation of 18 U.S.C. Sec. 1510 (1982); and one count of conspiring
to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. Sec. 1962(d) (1982). Daly was sentenced to two consecutive one-year prison terms, fined $10,000 on each count, and required to pay a special assessment of $50 on each count. Giardina was sentenced to concurrent prison terms of five years each on the conspiracy and obstruction counts and one year on the Taft-Hartley count, to fines totaling $40,000, and to special assessments of $50 on each count. On appeal, Daly contends that the trial court erred in admitting in evidence certain surveillance tapes, and he challenges his sentence as excessive. Giardina contends that the court erred in admitting expert testimony as to the existence and operations of the Gambino organized crime family, and he challenges the sufficiency of the evidence to convict him on any count. For the reasons below, we affirm the judgments of conviction.
Daly and Giardina were named in a 22-count superseding indictment charging them and 14 other defendants with various crimes arising out of activities of the Gambino crime family. Daly was charged in five counts: one count of conspiring to conduct a pattern of racketeering activity through the Gambino family in violation of 18 U.S.C. Sec. 1962(d), three counts of accepting bribes in violation of the Taft-Hartley Act, 29 U.S.C. Secs. 186(a)(2) and (b)(1), and one count of conspiring to pay a bribe to one Thomas Patchell in violation of 29 U.S.C. Sec. 186(a)(2). Giardina was charged in four counts: one count of RICO conspiracy in violation of Sec. 1962(d), one count of aiding and abetting Daly's receipt of a bribe in violation of 29 U.S.C. Secs. 186(a)(2) and (b)(1) and 18 U.S.C. Sec. 2, one count of conspiring to pay a bribe to Patchell in violation of 29 U.S.C. Sec. 186(a)(2), and one count of obstructing a federal criminal investigation in violation of 18 U.S.C. Sec. 1510. Daly, Giardina, and codefendant Julie Miron were severed from the other defendants for trial.
The government's case against these three defendants was presented principally through the testimony of Robert Matthews, an officer of Matthews Industrial Piping Co. ("Matthews Piping"), a piping contractor located in the Bronx, New York; and tape recordings the government had obtained through surveillance of the home of Paul Castellano, then the boss of the Gambino crime family. Summarized briefly and taken in the light most favorable to the government, the evidence at trial showed the following events.
Daly was the business agent-at-large for Local 638 of the Enterprise Association of Steam Fitters ("Local 638"), which had jurisdiction over steam-fitting jobs in the five boroughs of New York City and on Long Island. Giardina, who also was active in New York labor union affairs, was an acquaintance of both Daly and Castellano. Miron was a lumber contractor who was acquainted with Castellano, Daly, and other union officials.
In 1981, Matthews Piping submitted a $10 million bid for a contract to replace the piping in a deepwater oil storage and pipeline facility at Port Mobil in Staten Island, New York ("Port Mobil"). Because Local 638 could supply only a small number of welders with the skills necessary to perform the Port Mobil job, Matthews planned to use welders from other states, and his bid was premised on the lower cost of the imported labor.
Matthews testified that in the fall of 1981, anticipating that he would need the cooperation of Local 638 in his attempt to import welders for the Port Mobil job, Matthews met with Daly, explained why he needed to use imported labor, and gave Daly $5,000 in cash. Daly told Matthews he would see what he could do. In November, Matthews Piping was awarded the Port Mobil contract. Despite the payment to Daly, when the imported welders began working, Local 638 picketed the jobsite. The picketing was led by Thomas Patchell, a business agent for Local 638. Matthews testified that he still believed, however, that Daly could quiet the union. Accordingly, in December 1981, while the picketing Matthews Piping filed charges with the National Labor Relations Board, seeking to have the pickets removed. The parties reached a settlement in which the union agreed to remove the pickets for 30 days. During the 30-day period, Patchell discovered that the imported welders belonged to other locals around the country. He filed charges against these welders for accepting employment with a nonunion contractor, causing the "ring leader" among the out-of-state welders to be fined by his local and threatened with expulsion. As a result, Matthews lost most of his welders on the jobsite. He complained to Daly, but Daly replied that he was unable to control Patchell.
was in progress, he met with Daly and gave him another $5,000 in cash.
In January 1982, seeking advice on how to solve his problem with Local 638, Matthews consulted Miron, whom he had known for some twenty years, because "Miron had pretty good union connections, he knew a lot of the big people." Miron assured Matthews that he would arrange to eliminate the union's objection to the imported welders, but that Miron "would have to pass out a hundred thousand dollars to people." Some weeks later, Matthews delivered $50,000 in cash to Miron at Miron's home, agreeing to bring the remaining $50,000 at a later time. Miron assured Matthews that he would take care of the problem. Miron gave $25,000 of this payment to Daly. He also gave $15,000 to Castellano, who, in turn, gave at least $4-5,000 to Giardina.
Some months after the first visit, Matthews returned to Miron's home with the remaining $50,000. When Miron stated that he had given $25,000 of the first payment to Daly, Matthews replied that he thought Miron foolish to give money to Daly, because he did not believe Daly could be of help. Matthews told Miron that Matthews had previously given Daly $10,000. Miron responded that Matthews should never have paid money to Daly directly.
Despite his efforts to neutralize Patchell, Matthews was forced on May 6, 1982, to sign a collective bargaining agreement with Local 638. As a result, his costs on the Port Mobil job were higher than he had originally anticipated. On several occasions thereafter, Matthews contacted Miron, unsuccessfully demanding the return of his money.
In early May 1983, Matthews sent Miron a registered letter, threatening to go to the authorities if at least some of his money were not returned. In the first week of May, Matthews met with Daly and similarly threatened to go to the FBI or other authorities. As revealed by the surveillance tapes discussed below, Matthews's threat was promptly relayed by Daly to Giardina and by Giardina to Castellano.
At least as early as March 1983, the FBI was conducting an investigation into the activities of the Gambino crime family. In an ongoing electronic surveillance, government agents intercepted and recorded many conversations at the home of Castellano. Tape recordings of several of these conversations were played for the jury in order to provide background information on the nature and structure of organized crime in general and the Gambino family in particular. As discussed in greater detail in Part II.B. below, FBI agent James Kossler testified as an expert on the matters heard on the tapes, and he outlined the process by which the Gambino family had gained control over certain labor unions in the New York City area.
Daly's voice was not identified on any of the tapes. Giardina was a participant in at least three conversations. These included one on May 5, 1983, and one on June 2, 1983, in which Giardina and Castellano discussed the payments that Matthews had made to Daly and Miron.
In the May 5, 1983 conversation, Giardina told Castellano that Daly had called Giardina the day before with some urgency, to tell him that Matthews was threatening to "go[ ] to the Task Force." Castellano responded, "You know why," stating it was because Daly had "robbed his money." Castellano viewed Daly's actions as a detriment to the entire organization. He was The conversation repeatedly returned to Matthews's threat to go to the authorities, with Giardina noting that "he's crying cop," and that Daly was "worried that Matthews is...
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