935 F.2d 553 (3rd Cir. 1991), 90-1267, United States v. Eufrasio

Docket Nº:90-1267, 90-1268, 90-1305.
Citation:935 F.2d 553
Party Name:UNITED STATES of America v. Mario EUFRASIO, a/k/a Murph, Appellant. UNITED STATES of America v. Santo IDONE, a/k/a Sam, a/k/a Sam from Chester, a/k/a Papa, a/k/a Big Santo, Appellant. UNITED STATES of America v. Gary S. IACONA, Appellant.
Case Date:May 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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935 F.2d 553 (3rd Cir. 1991)

UNITED STATES of America

v.

Mario EUFRASIO, a/k/a Murph, Appellant.

UNITED STATES of America

v.

Santo IDONE, a/k/a Sam, a/k/a Sam from Chester, a/k/a Papa,

a/k/a Big Santo, Appellant.

UNITED STATES of America

v.

Gary S. IACONA, Appellant.

Nos. 90-1267, 90-1268, 90-1305.

United States Court of Appeals, Third Circuit

May 15, 1991

        Argued Oct. 11, 1990.

        Rehearing and Rehearing In Banc Denied June 19, 1991.

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        Jack A. Meyerson (argued), Marc Durant & Associates, Philadelphia, Pa., for appellants Eufrasio and Iacona.

        John R. Carroll (argued), Carroll & Carroll, Philadelphia, Pa., for appellant Idone.

        Frank J. Marine (argued), U.S. Dept. of Justice, Washington, D.C., Arnold H. Gordon, Albert J. Wicks, Philadelphia, Pa., for appellee.

        Before GREENBERG, HUTCHINSON and NYGAARD, Circuit Judges.

       OPINION

        NYGAARD, Circuit Judge.

        In these consolidated criminal appeals, appellants Santo Idone, Mario Eufrasio and Gary Iacona stand convicted and sentenced for RICO violations, attempted extortion and illegal gambling. Appellants were charged together and tried jointly before an anonymous jury.

        The jury found each defendant guilty on four counts: conspiring to participate, and participating in the affairs of an enterprise through a pattern of racketeering activity and the collection of unlawful debt in violation

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of 18 U.S.C. Sec. 1962(d) and (c) (counts one and two) (the "RICO counts") 1; attempted extortion in violation of 18 U.S.C. Sec. 1951 (count three); and conducting an illegal gambling business in violation of 18 U.S.C. Sec. 1955 (count four).

        Appellants' RICO liability was predicated on attempted extortion, illegal video poker machine gambling and collecting unlawful debts. Only Idone was charged with and convicted on a separate racketeering predicate of murder conspiracy.

        All appellants allege the following errors: with respect to the RICO counts, the superseding indictment failed to charge a valid pattern of racketeering activity; evidence of uncharged crimes was admitted without adequate limiting instructions and without articulating a Fed.R.Evid. 403 balance; the district court empaneled an anonymous jury without a hearing and without stating its reasons on the record; and, various insufficiencies of evidence warrant reversal of appellants' convictions.

        Eufrasio and Iacona argue the trial court erred by not severing their trials from Idone's trial when only Idone was indicted under RICO on the murder conspiracy predicate, evidence of which allegedly prejudiced Eufrasio and Iacona. Additionally, they argue the extortion count of the superseding indictment was ambiguous, and so the trial court erred by denying a requested bill of particulars and curative jury instructions. They also claim the district court's charge to the jury concerning appellants' collection of unlawful debts was inadequate.

        Individually, Eufrasio appeals the government's failure to corroborate certain tape recorded statements made by him, and failure to prove he engaged in a "continuous" business of making usurious loans. Iacona argues it was error not to require the government to prove appellants made threats when collecting unlawful debts. Idone contends it was error not to dismiss the murder conspiracy charge from his trial, or alternatively, to sever the RICO counts from his trial on the other charges. 2

        We reject each of appellants' claims on appeal, and will affirm their convictions. We have appellate jurisdiction under 28 U.S.C. Sec. 1291.

       I.

Facts

        Viewed in a light most favorable to the government, trial evidence showed that during 1982 and 1983, Idone participated in the affairs of an organized crime enterprise through a murder conspiracy; and that during 1981-1986, all appellants conspired to and did participate in the same enterprise through a pattern of illegal gambling and the attempted extortion of a competitor of their gambling business, and through the collection of unlawful debts. 3

        A. The Nature of the Scarfo Enterprise.

        From 1981 to 1986, appellants conspired to participate, and participated knowingly in the Scarfo "Family," a Philadelphia and New Jersey based subdivision of La Cosa Nostra ("LCN" or "Mafia"). 4 At times relevant

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to appellants' convictions, the Scarfo organization was a RICO "enterprise" 5 consisting of approximately 60 full members of the LCN, and at least 100 criminal associates. Appellants' participation in Scarfo-related criminal activities resulted in their RICO convictions.

        The Boss of the Scarfo enterprise, Nicodemo Scarfo ("Scarfo"), oversaw its activities, and appointed lesser mob officers. Below the enterprise's top leadership were "Capos" (captains), each of whom commanded a "crew" of criminal "soldiers" and "associates". The enterprise's top leadership, Capos and soldiers were "made men", that is formally initiated members of the LCN. Associates were uninitiated colleagues of Mafia soldiers, and were responsible to their sponsoring LCN member.

        Associates and soldiers were required by mob rules to obtain their superiors' approval before conducting criminal ventures, and had to report their criminal activities and profits to these superiors. Capos supervised their crews and shared in the proceeds of crew crimes along with the enterprise's top leadership.

        Idone was a "made" member of the LCN who, beginning in the early 1970's, served as a Capo in the Scarfo organization. During the period 1981-1986, Idone supervised a crew of soldiers and associates, including Eufrasio and Iacona. Idone's crew participated in the crimes at issue here: the conspiracy to murder Thomas Auferio; the illegal video poker machine gambling business; the attempt to extort competitors of that business; and the collection of unlawful debts. As required by Mafia rules, Capo Idone periodically reported his crew's criminal activities to his Boss, Scarfo. 6 Eufrasio regularly arranged meetings with Scarfo to facilitate Idone's reporting.

        The function of soldiers and associates, and of the mob generally, was to make money by illegal means. More specifically, the enterprise's diverse purposes were "to control, manage, finance, supervise, participate in and set policy concerning the making of money through illegal means." App. 43.

        B. Idone's Participation in the Enterprise-related Conspiracy to Murder Thomas Auferio.

        To enforce mob discipline in 1982, Scarfo ordered Idone and other Capos to kill Harry Riccobene and his supporters. Riccobene was an insubordinate member of the Scarfo organization. Thomas Auferio, a Riccobene supporter, was also targeted for murder. Idone participated in the ensuing conspiracy to murder Auferio. Idone's participation in that conspiracy was racketeering activity constituting, in part, the pattern of racketeering underlying Idone's RICO convictions.

        Scarfo's Capos attempted to murder Riccobene more than once during the summer of 1982, but botched the job each time. Scarfo complained to Idone and another Capo, Philip Leonetti. Although subsequently incarcerated, Scarfo continued efforts to kill Riccobene and his supporters.

        In early fall 1983, an attempt to kill Riccobene affiliate Thomas Auferio failed. Auferio went into hiding, apparently in Hazelton, Pennsylvania. Scarfo people met with Idone and asked him to help locate Auferio. Idone agreed to have a member of Idone's crew who lived in Hazelton, assist in the hunt for Auferio. A week later, Idone and the other would-be murderers met again. At this meeting Idone said Auferio was no longer in Hazelton, but Idone would have his crew members kill Auferio if they found him.

        Eventually, the Scarfo faction succeeded in killing some Riccobene followers. As a result, the efforts to locate and kill Auferio were called off.

        C. Appellants' Participation in the Enterprise-related Illegal Gambling Business.

        From 1981 until December 1986, Idone, Iacona, Eufrasio, Francis Peticca (a co-defendant

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who did not appeal his conviction) and others, conducted an unlawful video poker machine gambling business. Appellants placed illegal gambling machines in restaurants and bars throughout Delaware County, Pennsylvania. Delaware County is adjacent to Philadelphia, a center of Scarfo activities. Appellants' illegal gambling was a direct violation of 18 U.S.C. Sec. 1955, 7 and also was racketeering activity constituting, in part, the pattern of racketeering underlying appellants' RICO convictions.

        Through electronic surveillance of Iacona's Auto Center in Chester, Pennsylvania, the FBI intercepted appellants' conversations about their illegal gambling operations. As a result, in December 1986, FBI agents executed search warrants and seized numerous video poker machines and cash gambling proceeds from 21 Delaware County bars and restaurants. A contemporaneous raid of the auto center discovered Iacona, Eufrasio, Idone and Peticca on the premises with more of their video gaming machines, thousands of dollars in cash, gambling records, and Scarfo's address and phone number.

        At trial, expert testimony and other evidence showed that appellants had conducted an illegal gambling business involving at least 28 persons and 23 locations; Idone headed that business; Iacona was Idone's partner who worked under Idone by managing day to day gambling activities; and Eufrasio along with Iacona and Peticca, collected gambling revenues and otherwise assisted the illegal gambling operation.

        Philip Leonetti, a former LCN member turned government witness, testified...

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