U.S. v. Zannino, 87-1221

• Decision Date: 07 November 1989
• Docket Number: No. 87-1221,87-1221
• Citation: 895 F.2d 1
• Parties: , 29 Fed. R. Evid. Serv. 838 UNITED STATES of America, Appellee, v. Ilario M.A. ZANNINO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

895 F.2d 1

106 A.L.R.Fed. 1, 29 Fed. R. Evid. Serv. 838

UNITED STATES of America, Appellee, v. Ilario M.A. ZANNINO, Defendant, Appellant.

No. 87-1221.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 1989.

Decided Jan. 10, 1990.

Joseph J. Balliro, with whom Edward J. Romano was on brief for defendant, appellant.

Frank J. Marine, Atty., Dept. of Justice, with whom Ernest Dinisco, Sp. Atty., Dept. of Justice, and Wayne A. Budd, U.S. Atty., were on brief for the United States.

Before BOWNES, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

In 1983, defendant-appellant Ilario M.A. Zannino, allegedly a predominant figure in the so-called "Patriarca Family" of La Cosa Nostra, was indicted by a federal grand jury. The indictment charged Zannino and several codefendants with conspiring to participate in an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(c), (d), and with a number of racketeering, loansharking, and gambling violations. The listed predicate acts included two murders and four conspiracies to commit murder. Zannino stood trial after the others, ¹ and then, on only three of the original eight counts directed against him. Having been found guilty before a jury and sentenced to a 30-year prison term, he prosecutes this appeal. We affirm.

I. BACKGROUND

Zannino's indictment grew out of the judicially sanctioned electronic surveillance of apartments at 98 Prince Street and 51 North Margin Street in Boston's North End. ² Hidden microphones recorded numerous conversations among various persons, including Zannino and his codefendants, during the period January-May 1981. The FBI monitored the conversations and, in addition, photographed persons entering and leaving the premises. We summarize certain critical data, taking the evidence as the jury could permissibly have found it, viewing the record in the light most congenial to the prosecution, and drawing all reasonable inferences in the government's favor. See United States v. Ingraham, 832 F.2d 229, 230 (1st Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).

The evidence indicated that the surveilled premises were used as the headquarters for the operation of prosperous, but illegal, gambling and loansharking businesses. Gennaro Angiulo was at the apex of the criminal pyramid and, as such, was ultimately responsible for the delegation of tasks to others. ³ Zannino was a "Capo Regime"--loosely, a captain--in the Patriarca Family, serving under Angiulo.

From at least the fall of 1980 to late spring of 1981, high stakes poker games were held at North Margin St. Photographic surveillance of the building's outside entrance revealed a regular flow of players coming and going. Intercepted conversations disclosed that the poker games were "owned" by a quinquevirate comprised of Zannino, Angiulo, Granito, Ralph Lamattina, and Nick Giso. Francesco Angiulo served as the operation's accountant. John Cincotti managed the staff, collected the dealers' tips, arranged credit for the gamblers, and collected debts. Zannino was the chief operating officer of the venture, supervising Cincotti, determining player eligibility, and overseeing the debt collection function. Donald Smoot was a poker player to whom the house frequently extended credit.

Zannino was also deeply involved with Angiulo in a loansharking operation. ⁴ They were often overheard discussing aspects of the business. Among other things, the loansharks furnished venture capital to gamblers. By early 1981, Smoot owed Zannino $14,000. Smoot made interest payments on this debt at the rate of one percent per week ($140), paying the money to Zannino, Cincotti, or Donato Angiulo. When Zannino "assigned" $2,000 of the principal to Dominic Isabella, Smoot began to make hebdomadal interest payments to Isabella at twice the rate. Smoot was well aware that, considering the circumstances, he could be threatened with physical harm or violence if he failed to pay his indebtedness to appellant.

The evidence at trial also implicated Zannino in a barbooth gambling business ⁵ at the Demosthenes Democratic Social Club in Lowell, Massachusetts during 1980-81. Angiulo oversaw the barbooth operation, with Francesco Angiulo as the accountant, Peter Vulgaropoulus as the manager, and Vincent Roberto (a/k/a "Fat Vinnie") as an assistant manager. Zannino had a financial interest. Numerous conversations were intercepted in which Zannino, Angiulo, and others discussed the barbooth gambling business, including their stake in it, the profits collected, and the house's extension of credit to bettors. Additional evidence was garnered during a warranted search of the Lowell premises in late 1981.

As previously noted, appellant's case was severed from his codefendants. He was tried on three of the counts against him: two counts of running illegal gambling businesses in violation of 18 U.S.C. Sec. 1955 (relating, respectively, to poker games and barbooth gambling), and a third accusing him of making an extortionate extension of credit to Smoot in violation of 18 U.S.C. Sec. 892(a). Appellant was convicted on all three counts.

In this appeal, he assigns myriad errors. There are four major issues: the use of Smoot's testimony; the admissibility of the tape-recorded conversations; sufficiency of the evidence; and defendant's flagship claim--that his ill health required more solicitous treatment than was received. We address these in the indicated order, touch briefly upon a few other arguments, and summarily reject the rest.

II. A DEAD MAN'S TALE

Smoot, a cooperating government witness, had been placed in the witness protection program and testified at the trial of Zannino's codefendants. On that occasion, he was vigorously cross-examined by three different defense counsel. He died prior to appellant's trial. Appellant mounts a two-pronged challenge to the judge's ruling that Smoot's earlier testimony could be introduced.

A. The Confrontation Clause.

Zannino first contends that reading Smoot's previous testimony to his jury violated the Confrontation Clause, U.S. Const. Amend. VI. To be sure, the Constitution prohibits the random admission into evidence of an unavailable declarant's hearsay statements. Yet, we know on the best authority that such out-of-court statements may nonetheless be admitted at a criminal trial in a variety of circumstances. See, e.g., Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987) (coconspirator statements); Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219-20, 27 L.Ed.2d 213 (1970) (statement against penal interest); see also United States v. Seeley, 892 F.2d 1, 2 (1st Cir.1989); United States v. Fields, 871 F.2d 188, 192-93 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989); United States v. Dunn, 758 F.2d 30, 39 (1st Cir.1985).

The touchstone is trustworthiness. When a declarant's unavailability has been shown, the Confrontation Clause may be satisfied if the declaration bears adequate "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Put in constitutional context, "the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement' ". Dutton, 400 U.S. at 89, 91 S.Ct. at 220 (quoting California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970)). Thus, the requirements of the Confrontation Clause regarding the admission of hearsay evidence are met whenever the evidence falls within a firmly rooted exception to the hearsay principle. See Bourjaily, 483 U.S. at 182-83, 107 S.Ct. at 2782-83; Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. As we recently wrote, "to the extent that a traditional hearsay exception has sufficiently long and sturdy roots, a determination that the exception applies obviates the need for a separate assessment of the indicia of reliability which may or may not attend the evidence." Puleio v. Vose, 830 F.2d 1197, 1205 (1st Cir.1987), cert. denied, 485 U.S. 990, 108 S.Ct. 1297, 99 L.Ed.2d 506 (1988).

While a firmly rooted hearsay exception doubtless exists for former testimony given by a declarant who dies, or becomes unavailable, before the trial at issue, see Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 2314, 33 L.Ed.2d 293 (1972); California v. Green, 399 U.S. at 165-66, 90 S.Ct. at 1938-39, that exception is usually thought to hinge on defendant's counsel having had "complete and adequate opportunity to cross-examine" on the earlier occasion. Green, 399 U.S. at 166, 90 S.Ct. at 1939. Here, Zannino's trial had been severed and his counsel, therefore, had no chance to cross-question Smoot when the main racketeering trial occurred. We therefore assume, as appellant urges, but do not decide, that no such exception applies.

The presence of such a categorical exception is not, however, a sine qua non to admissibility, but merely a way of easing the introduction of an unavailable declarant's statements. Where, as here, no such exception is claimed, the court may still look at the totality of the circumstances to see if adequate indicia of reliability attend the evidence. See Bourjaily, 483 U.S. at 179, 107 S.Ct. at 2781; Roberts, 448 U.S. at 66, 100 S.Ct. at 2539; Dutton, 400 U.S. at 89, 91 S.Ct. at 219; Dunn, 758 F.2d at 39. To that end, we independently examine the circumstances surrounding Smoot's testimony in order to ascertain whether it passes sixth amendment muster.

Before embarking upon this voyage, we first address, and reject, appellant's asseveration that, absent the catharsis of cross-examination, an unavailable...