922 F.2d 1008 (2nd Cir. 1991), 1601, United States v. Coiro

Docket Nº:1601, Docket 90-1192.
Citation:922 F.2d 1008
Party Name:UNITED STATES of America, Appellee, v. Michael COIRO, Defendant-Appellant.
Case Date:January 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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922 F.2d 1008 (2nd Cir. 1991)

UNITED STATES of America, Appellee,

v.

Michael COIRO, Defendant-Appellant.

No. 1601, Docket 90-1192.

United States Court of Appeals, Second Circuit

January 3, 1991

Argued July 18, 1990.

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Gerald L. Shargel (Alan S. Futerfas, New York City, of counsel), for defendant-appellant.

John Gleeson, Asst. U.S. Atty, Brooklyn, N.Y. (Andrew Maloney, U.S. Atty. E.D.N.Y., David C. James, Asst. U.S. Atty., of counsel), for appellee.

Before WINTER, MAHONEY and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Following a jury trial before then-District Judge Joseph M. McLaughlin in the Eastern District of New York, appellant Michael Coiro, an attorney and the sole defendant at trial, was convicted of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(d); conspiring to obstruct justice and to obstruct a criminal investigation, in violation of 18 U.S.C. Sec. 371; two counts of obstructing a criminal investigation, in violation of 18 U.S.C. Sec. 1510(a); and two counts of obstructing a grand jury investigation, in violation of 18 U.S.C. Sec. 1503. Coiro was sentenced to a 15-year term of imprisonment and a $25,000 fine on the RICO count, and to concurrent terms of five years on each of the remaining counts.

On appeal, Coiro contends that his obstruction convictions under 18 U.S.C. Sec. 1510(a) should be reversed because his conduct was not cognizable under that statute, and that one of those counts should be vacated as multiplicitous. Coiro also argues that the district court erred in admitting evidence of the drug-trafficking arrest of two members of the Ruggiero organization, and of Coiro's bribing an employee of the Nassau County District Attorney's office. He further alleges that one of the counts of obstructing a grand jury investigation was not supported by sufficient evidence. Coiro also challenges the constitutionality of the RICO pattern requirement, 18 U.S.C. Sec. 1962(c), and claims that the government failed to establish such a pattern of racketeering activity in this case.

BACKGROUND

Coiro was a criminal defense attorney whose clients included Angelo Ruggiero, Gene Gotti and John Carneglia, partners in a large narcotics enterprise. Coiro was indicted in 1983, along with these three and others, as a result of FBI and grand jury investigations begun in late 1981 into the Ruggiero enterprise.

The evidence at Coiro's trial, based in part on conversations recorded by the FBI with electronic surveillance, revealed Coiro's involvement in the narcotics organization at least as early as February, 1982. Coiro, who had last represented a member of the enterprise in 1975, now helped them by bribing and facilitating the bribing of law enforcement and other officials to obtain confidential information, by assisting the concealment and laundering of narcotics proceeds, and by otherwise using his position as an attorney to assist other members of the enterprise in avoiding criminal prosecution.

In particular, Coiro assisted the enterprise after the death of one of its members, Salvatore Ruggiero, Angelo Ruggiero's brother. Since 1975, Salvatore, although a fugitive facing narcotics and tax evasion charges, continued to engage in drug trafficking. After he died in a crash on May 6, 1982, the FBI and the grand jury began to inquire into his previous activities, into possible harboring by others, and into the location of assets he had amassed from the narcotics business. During this period, Coiro helped to create false stories to be fed to the authorities, conceal evidence, and influence the testimony of prospective witnesses, in order to obstruct the pending law enforcement and grand jury investigations. The nature of Coiro's commitment to the enterprise can be inferred from a conversation intercepted on May 12, 1982:

GOTTI: You're not our lawyer, you're one of us as far as we're concerned.

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COIRO: I know it, Genie, and I feel that way. That's a honor.

The RICO Charge

The RICO charge was based on Coiro's knowing participation in Angelo Ruggiero's narcotics organization and his furtherance of its illegal purposes through bribery and money laundering.

On May 21, 1982, Coiro, Ruggiero and Gotti were recorded discussing whether they should pay additional money to an official in the Nassau County District Attorney's office for further information regarding that office's investigations. The official had previously been paid to provide a confidential list of organized crime figures residing in Nassau and Suffolk counties. Coiro brought that list to the meeting and the three men quoted from it during the conversation. Ruggiero told Gotti:

Soon as he hears anything, he'll be in touch with us immediately. The guy's looking for a nickel, he will continue looking, anything at all. And, I gave 'em a dime already.

Coiro, supporting the additional bribe, observed that "[f]orewarned is forearmed." Gotti agreed, noting that the source was "close to Dillon," the Nassau County District Attorney. After deciding that the extra bribe was worth it "[j]ust to get the hook in there," Gotti emphasized that Coiro was the one dealing with this source: "Mike, all we're dealing with is you, and you deal with the guy."

Coiro had additional corrupt sources in Brooklyn and Queens. On May 12 and May 21, the government intercepted conversations in which Gotti and Coiro discussed a source Coiro had in the Eastern District. On May 13, in a conversation intercepted by the government, Coiro spoke to Ruggiero about his source in Queens, who apparently was aware of sealed materials.

Further, Coiro was involved in the organization's hiring of an individual, named Jack Conroy, to detect electronic surveillance and bribe telephone company employees for information on wiretaps. In an April 25, 1982 conversation, Ruggiero apprised Carneglia of Conroy's source in the telephone company, whereupon Carneglia observed that "This guy'll become a hook." In response to Carneglia's inquiry as to Conroy's trustworthiness, Ruggiero said, "I asked Mike Coiro today. He said, listen, John McNally recommended him. Go to sleep with him." On May 8, Coiro, Ruggiero and Gotti talked about wiretaps Conroy had identified. When Gotti asked, "[c]ould we put stock into this guy," Coiro responded, "Yeah, yeah, put stock in him. The guy, guy worked for ... years in the P.D." Later, Ruggiero noted that he had recently paid Conroy in Coiro's presence, which Coiro acknowledged.

Coiro also assisted the Ruggiero organization by helping to conceal the proceeds of narcotics trafficking. The May 12 conversation among Coiro, Ruggiero and Gotti is instructive:

RUGGIERO: Ah, let me ask you something Mike.... If I get some money.... Will you hold it?

COIRO: Yeah.

RUGGIERO: I'm not talking about large, large.

GOTTI: Before you hold anything, Mike. I got to ask you one more thing. Are you holding anybody else's ...?

COIRO: No, that's all straightened out.

GOTTI: [A]nd nobody's to know, but us.

On May 21, Ruggiero and Coiro again discussed the laundering of narcotics proceeds. Ruggiero told Coiro: "[M]y problem is getting this money to Raymond [Kobus]," a young attorney working for Coiro, and said he wanted to "give him [Kobus] a [percentage] point on the money" for "cash[ing]" the bills, i.e., changing small bills into large ones. Coiro objected to paying Kobus too much: "I wanted him to know there are certain things in this life that he's gotta do, and he's just gotta do it and he don't say a word." Coiro stated that he had already told Kobus that "if they're making money you could rest assured of one thing, you're gonna make money." On Coiro's instructions, Kobus later went to Ruggiero's house to pick up the money.

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The Obstruction Charges

The various obstruction of justice charges on which Coiro was convicted and which he challenges here were based on his conduct in the aftermath of Salvatore Ruggiero's death. The two counts of obstructing a criminal investigation were based upon the fabricated story meant for the FBI that Coiro helped create. Coiro was convicted on two counts of endeavoring to obstruct the grand jury investigating the harboring of Salvatore Ruggiero. Those charges stemmed from Coiro's counseling others to conceal and destroy evidence, to liquidate property derived from Salvatore's fugitive drug trafficking, counseling others to influence the testimony of prospective witnesses, helping to launder Angelo Ruggiero's narcotics proceeds, counseling Angelo Ruggiero to testify falsely, and finally, offering himself to testify falsely.

The specific events leading to Coiro's obstructive conduct began on May 6, 1982, when the Federal Aviation Administration notified Alfred Dellentash of the crash of the private jet carrying Salvatore Ruggiero. Dellentash was a drug smuggling partner of Salvatore and co-owner of the jet. Dellentash and Wayne Debany, another former drug smuggling associate, drove to Salvatore's house in New Jersey, meeting Carneglia, Angelo Ruggiero, and Gene Gotti, whom they notified of Salvatore's death.

Angelo Ruggiero, who supposedly had no contact with his brother, had actually been in continuous contact with his brother for the previous several years. Ruggiero was concerned about possible exposure to harboring charges as well as locating and acquiring his brother's accumulated narcotics assets. He directed the removal of any evidence from his brother's house that might link him to Salvatore.

Also concerned that the FBI would contact Debany and Dellentash to inquire as to how Ruggiero knew that his brother died, Ruggiero summoned the two to his home on the next day. When they arrived, Ruggiero, Carneglia, Gotti and Coiro were already present. The group discussed how to explain Ruggiero's knowledge of Salvatore's death since he was supposedly...

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