U.S. v. Coonan

Decision Date16 July 1991
Docket NumberD,No. 280,280
Citation938 F.2d 1553
PartiesUNITED STATES of America, Appellee, v. James COONAN, Kevin Kelly, James McElroy, Kenneth Shannon, William Bokun, John Halo, Edna Coonan, Richard Ritter, Thomas Collins, Florence Collins, Defendants, Kevin Kelly, Defendant-Appellant. ocket 90-1223.
CourtU.S. Court of Appeals — Second Circuit

Vivian Shevitz, New York City (Georgia J. Hinde, of counsel), for defendant-appellant.

Laurie E. Brecher, Asst. U.S. Atty., S.D. New York (Otto G. Obermaier, U.S. Atty., David E. Brodsky, Helen Gredd, Asst. U.S. Attys., S.D. New York, of counsel) for appellee.

Before NEWMAN and ALTIMARI, Circuit Judges, and CONBOY, District Judge. *

ALTIMARI, Circuit Judge:

Defendant-appellant Kevin Kelly appeals from a judgment of conviction, entered in the United States District Court for the Southern District of New York, following a jury trial before Judge Whitman Knapp.

In a seventeen count indictment, Kevin Kelly and co-defendants James Coonan, Edna Coonan, Thomas Collins, James McElroy, Richard Ritter, Florence Collins, William Bokun, John Halo and Kenneth Shannon were charged with various offenses arising from their participation in a racketeering enterprise. After a five-week trial, Kelly was convicted of participating in and conspiring to participate in a racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1962(c) & (d) (1988). Kelly was also convicted of attempted murder and assault for the purpose of maintaining and increasing his position in the racketeering enterprise, in violation of 18 U.S.C. Sec. 1952B (Supp. V 1987) (subsequently renumbered as 18 U.S.C. Sec. 1959 (1988)); conspiracy to make extortionate extensions of credit, in violation of 18 U.S.C. Secs. 891 & 892 (1988); conspiracy to use extortionate means to collect extensions of credit, in violation of 18 U.S.C. Secs. 891 & 894 (1988); conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1988); and conspiracy On appeal, Kelly challenges his RICO convictions, contending that there was insufficient evidence to support the jury's finding of a racketeering enterprise and arguing that RICO is unconstitutionally vague. Further, Kelly claims that his conviction violated principles of double jeopardy as well as RICO's statutory language because one of the predicate acts of racketeering charged in the indictment was a crime of which he had previously been acquitted in state court. Kelly also complains that his conviction was based in large part on unreliable evidence that he was precluded from challenging. Finally, Kelly attacks his sentence as improperly cumulative.

to commit extortion in violation of 18 U.S.C. Sec. 1951 (1988). Kelly was acquitted of conducting a gambling business, in violation of 18 U.S.C. Sec. 1955 (1988). As a consequence of these convictions, Kelly was sentenced to fifty years of imprisonment.

For the reasons stated below, we affirm the judgment of conviction on all counts.

BACKGROUND

Defendant-appellant Kevin Kelly and his nine co-defendants were charged with racketeering and various other offenses related to their participation in the affairs of the "Westies" (also known as "Coonan's Crew," the "Westside Guys," and the "Westside Irish Mob"), an organized crime group based in the Hell's Kitchen section of Manhattan. Although Kelly did not join the Westies until the late 1970s or early 1980s, an overview of the criminal organization's history is essential to understanding the specific charges at issue. The following facts and inferences can reasonably be drawn from the evidence adduced at trial.

1. The Westies Rise to Power

The Westies were formed in the mid-1960s when James Coonan and his confederates attempted to wrest control of criminal activity in Hell's Kitchen from the then predominant gang leader, Michael "Mickey" Spillane. Coonan was ultimately victorious in his efforts to drive Spillane from power and seize control of the West Side. Throughout the 1970s and early 1980s, the Westies, under Coonan's leadership, maintained and expanded their position as the preeminent organized crime group in Hell's Kitchen. By the mid-1970s, Francis "Mickey" Featherstone had become Coonan's righthand man and the Westies' second-in-command. The Westies' money-making activities centered around loansharking, narcotics dealing, extorting local labor unions and controlling New York's West Side piers. In conducting their various illicit businesses, Coonan and his gang routinely engaged in extreme acts of violence and effectively cultivated a reputation for barbarism. For example, in January 1978, Coonan, and fellow Westies, Mickey Featherstone and Anton "Tony" Lucich, murdered and dismembered Richard Tassiello, a loansharking customer who had fallen behind in his payments. In May 1977, in a similarly macabre incident, Coonan, William "Billie" Beattie and other members of the Westies, murdered and dismembered Charles "Ruby" Stein, a loansharking financier to whom Coonan owed a substantial sum of money.

In the late 1970s, the Westies' power was further enhanced when it entered into an alliance with the Gambino Organized Crime Family. The Gambinos agreed to finance the Westies' loansharking operation and also permitted the Westies to use the Gambino name and reputation in connection with their own illicit businesses. In exchange, the Westies paid the Gambino Family ten percent of the proceeds from various illegal activities.

At trial, the government established that Kelly's participation in the Westies began in the late 1970s. The evidence against Kelly concerned several specific areas of criminal activity and criminal acts.

2. The Westies' Loansharking Operation

In the mid-1970s, Coonan established a loansharking business through which he supplied money at high rates of interest to Westies members. In turn, the members loaned money at usurious rates of interest to inhabitants of the Hell's Kitchen community.

Although Kelly initially served as a collector and enforcer for other gang members, he was eventually rewarded with his own loansharking operation. Consistent with the Westies' reputation, Kelly utilized violence to ensure that his loansharking customers kept up their payments. For example, Kelly and fellow Westie Kenneth Shannon dealt with one delinquinent loansharking customer by stripping and beating the customer, and then leaving him tied to a tree. In another incident, Kelly and fellow Westie James McElroy, pistol-whipped a loansharking customer for missing his payments and for making disparaging remarks about the Westies.

3. The Westies' Cocaine Conspiracies

From 1984 until 1986, the Westies were involved in four interrelated cocaine distribution operations. Kelly and two other Westies members were primarily responsible for control of cocaine distribution in bars located on the Upper East Side of Manhattan. Kelly also lent assistance to other gang members who operated their own cocaine distribution operations. In particular, Kelly supplied both cocaine and financing to his fellow gang members, and helped them collect debts.

4. The Murder of Vincent Leone and the Conspiracy to Extort ILA Local 1909

Vincent Leone was an officer of Local 1909 of the International Longshoremen's Association ("ILA") and an associate of the Gambino Family. The Gambinos assigned Leone to help the Westies oversee criminal activities on the West Side piers, where members of Local 1909 worked. In November 1983, the Westies discovered that Leone had been skimming money from the profits generated on the piers. Consequently, Coonan, who was then in prison, sent word through his wife Edna that Leone was to be killed. At the same time, Coonan ordered the murder of a Westie who had defied him and also instructed that another Westie was to be "put out of business." As directed, Edna Coonan approached Mickey Featherstone and offered him "control of the piers" if he would undertake the assignment. Featherstone refused. Several days later, however, Featherstone mentioned Coonan's request to Kelly and McElroy. Kelly expressed interest and, accompanied by McElroy, visited Coonan in prison. During their prison meeting, Coonan confirmed that he wanted Leone killed and promised Kelly and McElroy control of the piers if they engineered the murder and convinced Featherstone to assist in overseeing waterfront criminal activity.

On February 11, 1984, Leone was driving in his car with Kelly and McElroy. Either Kelly or McElroy asked Leone to pull over. When the car stopped, Kelly shot Leone six times in the head. After the shooting, Kelly and McElroy fled the scene in a car driven by fellow Westie William "Billie" Bokun.

Following Leone's murder, Coonan instructed Kelly and McElroy to meet with Local 1909 officials Thomas Ryan and John Potter. At the meeting, Kelly accused Ryan of working with Leone to skim money that belonged to the Westies. Kelly also conveyed Coonan's instruction that henceforth Potter was to take responsibility for the money being paid from the ILA to the Westies. Accordingly, Potter began making weekly payments to Kelly, who shared the proceeds with Coonan, Featherstone, McElroy and Shannon. After Coonan was released from prison in late 1984, he began collecting the money himself and distributing the funds to his fellow Westies, including Kelly.

5. Extortion of Teamster's Local 817 and the Conspiracy to Murder John "Jackie" Lynch

Prior to 1980, Local 817 of the International Brotherhood of Teamsters' (known as the "Theatrical Teamsters") office was located at Ninth Avenue and Forty-Second Street in the heart of Hell's Kitchen. Local 817 subsequently moved its office to Long Island, with no apparent affect on the criminal conduct discussed below. Members of the Theatrical Teamsters generally were employed in various jobs within the entertainment industry, such as transporting Throughout...

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