U.S. v. Lanese

• Citation: 890 F.2d 1284
• Decision Date: 29 November 1989
• Docket Number: 1379,Nos. 1374,D,s. 1374
• Parties: 29 Fed. R. Evid. Serv. 446 UNITED STATES of America, Appellee, v. Michael Vincent LANESE, et al., Defendants, Michael Vincent Lanese, a/k/a "Vinnie" and Thomas Romano, a/k/a "T.R.," Defendants-Appellants. ockets 89-1079, 89-1133.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1284

890 F.2d 1284

29 Fed. R. Evid. Serv. 446

UNITED STATES of America, Appellee, v. Michael Vincent LANESE, et al., Defendants, Michael Vincent Lanese, a/k/a "Vinnie" and Thomas Romano, a/k/a "T.R.," Defendants-Appellants.

Nos. 1374, 1379, Dockets 89-1079, 89-1133.

United States Court of Appeals,

Second Circuit.

Argued July 17, 1989.

Decided Nov. 29, 1989.

Paul B. Bergman, New York City, for defendant-appellant, Michael lanese.

James J. Ruane, Bridgeport, Conn., Meehan & Meehan, for defendant-appellant, Thomas Romano.

J. Douglas Wilson, Dept. of Justice, Washington, D.C. Stanley A. Twardy, Jr., U.S. Atty., D.Conn., John H. Durham, Boston Strike Force, New Haven, Conn., for appellee.

Before WINTER and MAHONEY, Circuit Judges, and RE, Judge. ^*

RE, Chief Judge:

Defendants-appellants, Michael Vincent Lanese and Thomas Romano, appeal from judgments of conviction following a jury trial in the United States District Court for the District of Connecticut. Lanese and Romano were convicted of conspiring to "use ... extortionate means ... to collect any extension of credit," and "us[ing] ... extortionate means to collect any extension of credit," both in violation of 18 U.S.C. Sec. 894(a)(1) (1982). Lanese was sentenced to 78 months' imprisonment to be followed by three years' supervised release, and fined $25,000. Romano was sentenced to 72 months' imprisonment, to be followed by three years' supervised release.

Lanese contends that the district court erred in refusing to admit evidence of an alleged extortionate activity by the government's principal witness, Eugene Golino, and thereby deprived Lanese of his constitutional right of confrontation and a fair trial. Lanese also contends that the district court erred in failing to sever his trial from the other co-defendants, in admitting evidence of previous alleged criminal activity of codefendant Iannucci, and in failing to instruct the jury as to multiple conspiracies. Finally, Lanese contends that the district court impermissibly sentenced him as "a manager or supervisor [of a] criminal activity involv[ing] five or more participants or ... otherwise extensive," pursuant to section 3B1.1(b) of the Sentencing Guidelines.

With the exception of the sentence imposed, we find the contentions of Lanese without merit, and the judgment of conviction is affirmed. Since the district court did not make a specific finding of the identities of the "five or more participants," or that the criminal activity was "otherwise extensive," this court cannot determine whether Lanese's sentence was correctly increased pursuant to section 3B1.1(b). Accordingly, as to Lanese, we remand, for the specific findings required by section 3B1.1(b) of the Sentencing Guidelines.

Romano, in agreement with Lanese, contends that the district court erred in not admitting evidence of the alleged extortionate activity of Golino. Romano further asserts that the district court erred in not admitting a police report as to the destruction of his car. He also contends that the district court erred in having sentenced him as a "manager or supervisor [of a] criminal activity involv[ing] five or more participants or ... otherwise extensive."

With the exception of the sentence imposed, the contentions of Romano are without merit, and the judgment of conviction is affirmed. Since the district court erred in sentencing Romano as a "manager or supervisor [of a] criminal activity involv[ing] five or more participants or ... otherwise extensive," we reverse and remand for a resentencing of Romano.

BACKGROUND

In the fall of 1986, Eugene Golino began placing bets on sporting events with an After repaying the $12,000 debt owed to Iannucci, Golino continued gambling. He incurred an additional debt of $29,650 to Iannucci in February 1987, and told Iannucci that he could not pay the debt immediately. After being told by Iannucci that he "would get a visitor," Golino was again approached by Plotkin. Golino made monthly payments of $1,600 to Plotkin to pay off the debt owed to Iannucci. In addition, Plotkin advanced Golino $5,000 towards the debt, and demanded weekly payments of $250, as "juice." The $250 payments did not reduce the debts owed to either Plotkin or Iannucci.

                illegal gambling business run by codefendant Joseph Iannucci, in Bridgeport, Connecticut.  Golino incurred a gambling debt of $12,000 to Iannucci.  Golino testified that, when he approached Iannucci and told him that he could not pay the debt immediately, Iannucci responded that "[s]omebody would come and see me."    Subsequently, Golino was approached by Arnold Plotkin who, according to Golino, "showed me a baseball bat and a gun," and demanded payment of the debt
                

In September 1987, Plotkin introduced Golino to Thomas Romano. Plotkin instructed Golino to make his $1,600 monthly payments to Romano. However, Plotkin continued claiming the $250 weekly payments from Golino. After Plotkin was shot to death, Romano demanded the $250 weekly "juice" payments from Golino.

Golino then began placing bets with a bookmaker referred to him by Romano. After he satisfied his debt to Iannucci, Golino also placed bets with Iannucci's service. By late November 1987, Golino had incurred losses of approximately $55,000 to Romano's bookmakers and $25,650 to Iannucci's bookmakers.

On December 18, 1987, Golino met with Romano at a Bridgeport diner, and paid $5,000 towards his gambling debts. Romano then telephoned Michael Lanese, who joined Romano and Golino at the diner. Lanese, who according to Golino "had a gun on his hip in a brown leather case[,]" asked Golino "[w]here's my money?" Lanese had Golino sign a promissory note, payable to "my friend Michael Lanese" for $80,000, which represented the approximate amount of money owed to both Romano and Iannucci.

In January 1988, Golino approached Federal Bureau of Investigation agents and agreed to cooperate in an investigation of illegal sports betting operations in Bridgeport. Several times during January 1988, Golino, either using a tapped telephone or wearing a concealed tape recorder, discussed his gambling debts with Romano. The tapes revealed that Romano urged Golino to pay his debts, and frequently warned Golino that if he did not pay he would be harmed or killed. On January 29, 1988, Golino and Romano met at a Bridgeport restaurant, and were joined by Lanese and two others. After Romano became suspicious of a vehicle, which was an FBI surveillance van parked near the restaurant, the meeting was moved to a nearby park.

According to Golino, at the park, Lanese "grabbed me by the throat, and he started shoving me up against the fence." Golino testified that Lanese told him " '[y]ou'd better have my money if you know what's good for you.... If you don't want to be lying next to Arnie Plotkin or visiting him, you'll have my money.' " Subsequently, Golino entered the federal witness protection program.

On June 23, 1988, Lanese, Romano, and Iannucci were indicted in the United States District Court for the District of Connecticut. They were charged with using "extortionate means ... to collect and attempt to collect extensions of credit, namely illegal gambling debts," in violation of section 894(a)(1) of title 18 of the United States Code, and for conspiracy to commit the same crime. Plotkin was named as an unindicted co-conspirator. Following a jury trial, although all three defendants were convicted, only Lanese and Romano have appealed.

DISCUSSION

Both Lanese and Romano contend that the district court erred in not permitting them to cross-examine Golino, the prosecution's In 1981, Golino, acting on behalf of his father-in-law, made several loans to Anthony Kicska, a distant relative by marriage of Golino. When Kicska defaulted on the loan, Golino accompanied his father-in-law to Kicska's place of business. According to Lanese, as Golino "was having a good time laughing about it[,]" Golino's father-in-law threatened to shoot Kicska if he did not repay the loans. Both Golino and his father-in-law were arrested in 1982. The charges were dropped after both Golino and his father-in-law agreed to pay Kicska $5000 each in restitution.

key witness, about the circumstances surrounding Golino's 1982 arrest for extortion.

Lanese argues that the district court's refusal to permit cross-examination on Golino's previous arrest deprived Lanese of his sixth amendment right to confront the witnesses against him by denying him the opportunity to cross-examine the key government witness on a matter of bias.

Lanese contends that Golino's past experience with the criminal justice system "showed a specific bias and motive for Golino to testify falsely against Lanese; i.e., that Golino's motive in seeking the assistance of the FBI was not, as he asserted, fear and protection from perceived physical harm from Lanese, but was inspired by a hope to obtain restitution from Lanese...." He further argues that Golino was motivated to "interest" the FBI in the case by "exaggerat[ing] or even mak[ing] up elements of violence and, in the specific case of appellant Lanese, that he saw a gun."

We do not agree. It is highly improbable that Golino believed that, by going to the FBI, he could obtain restitution as Kicska did in 1982. The circumstances of the Kicska incident, although far from clear, did not involve illegal gambling debts, and apparently arose from a dispute among relatives or acquaintances. In contrast, Golino's debts to Lanese and Romano were based on illegal gambling, and were for a much higher amount than Kicska's. Furthermore, the tapes and underlying circumstances in this case provide significant evidence of threats of violence against Golino.

Romano argues that the district court's refusal to permit cross-examination of Golino's previous arrest denied Romano a fair trial because it did not allow the jury "sufficient information by which to assess the credibility of the witness." We disagree. The jury...