949 F.2d 1183 (2nd Cir. 1991), 90-1629, United States v. Paccione

Docket Nº:and 90-1629.
Citation:949 F.2d 1183
Party Name:UNITED STATES of America, Appellee, v. Angelo PACCIONE, Anthony Y. Vulpis, John J. McDonald, A & A Land Development, Stage Carting, Inc., August Recycling, Inc., New York Environmental Contractors, Inc., National Carting, Inc., Rosedale Carting, Inc. and Vulpis Brothers, Ltd., Defendants-Appellants. Nos. 1569-1576 and 1603, Dockets 90-1587 to 90-15
Case Date:November 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1183

949 F.2d 1183 (2nd Cir. 1991)

UNITED STATES of America, Appellee,

v.

Angelo PACCIONE, Anthony Y. Vulpis, John J. McDonald, A & A

Land Development, Stage Carting, Inc., August Recycling,

Inc., New York Environmental Contractors, Inc., National

Carting, Inc., Rosedale Carting, Inc. and Vulpis Brothers,

Ltd., Defendants-Appellants.

Nos. 1569-1576 and 1603, Dockets 90-1587 to 90-1593, 90-1597

and 90-1629.

United States Court of Appeals, Second Circuit

November 15, 1991

Argued June 17, 1991.

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[Copyrighted Material Omitted]

Page 1185

Elliot R. Peters, Asst. U.S. Atty., New York City (Roger S. Hayes, Acting U.S. Atty. S.D. N.Y., Jeffrey B. Sklaroff, Deirdre M. Daly, David E. Brodsky, Daniel C. Richman, Asst. U.S. Attys., New York City, on the brief), for appellee.

Nathan Z. Dershowitz, New York City (Victoria B. Eiger, Dershowitz & Eiger, New York City, Alan M. Dershowitz, Amy Adelson, Cambridge, Mass., on the brief), for defendants-appellants Angelo Paccione, A & A Land Development, August Recycling, Inc., National Carting, Inc., and Stage Carting, Inc.

Barbara L. Hartung, New York City (Alan P. Williamson, Morvillo, Abramowitz & Grand, New York City, on the brief), for defendant-appellant Anthony Vulpis.

Robert Kasanof, New York City (Edward M. Chikofsky, New York City, on the brief), for defendant-appellant John McDonald.

Karen Silverman, New York City (James M. LaRossa, Michael S. Ross, LaRossa, Mitchell & Ross, New York City, on the brief), for defendants-appellants Rosedale Carting, Inc. and Vulpis Bros., Ltd.

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Before MESKILL, KEARSE, and McLAUGHLIN, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Angelo Paccione, Anthony Y. Vulpis, and John J. McDonald (collectively the "individual defendants"), and defendants A & A Land Development, Stage Carting, Inc., August Recycling, Inc., National Carting, Inc., Rosedale Carting, Inc., and Vulpis Brothers, Ltd. (collectively the "corporate defendants"), appeal from judgments entered in the United States District Court for the Southern District of New York convicting them, following a jury trial before Constance Baker Motley, Judge, of racketeering and mail fraud offenses in connection with waste dumping operations. Paccione, Vulpis, and the corporate defendants were convicted of participating and conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d) (1988) (counts 1 and 2), and five counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2 (1988) (counts 5-9). Paccione was also convicted on an additional mail fraud count (count 12). McDonald was convicted on one count of mail fraud (count 12). Paccione and Vulpis were sentenced principally to 151 months' imprisonment, to be followed by three-year terms of supervised release; McDonald was sentenced principally to 12 months' imprisonment and ordered to pay a $79,500 fine. In lieu of forfeiture, fines, and restitution, the corporate defendants, Paccione, and Vulpis entered into a court-approved agreement to pay the government $22 million.

On appeal, defendants contend principally (1) that they were deprived of due process by the use of an anonymous jury, (2) that the conduct charged to them was not within the purview of the mail fraud statute, and (3) that the trial court made various evidentiary errors. Paccione and Vulpis also contend that the district court erred in computing their sentences under the federal Sentencing Guidelines ("Guidelines"). For the reasons below, we affirm the judgments of conviction.

I. BACKGROUND

In 1988, much of the private carting business in the New York City boroughs of Brooklyn and Queens was controlled by Paccione and Vulpis. Paccione was the president and majority shareholder of defendants August Recycling, Inc., National Carting, Inc. ("National"), and Stage Carting, Inc. ("Stage") (collectively the "Paccione companies"); Vulpis owned 50% of defendants Rosedale Carting, Inc. ("Rosedale"), and Vulpis Brothers, Ltd. (collectively the "Vulpis companies"). Together, these entities generated income of some $23,000,000 per year. The present prosecution arose principally out of defendants' fraudulent operation in 1988 of an environmentally hazardous landfill on 110 acres of largely undeveloped land on Staten Island, New York. Victims of this fraud included the City of New York ("City") and CSX Realty Corporation ("CSX"). Defendants operated by, inter alia, disregarding regulations promulgated by the City's Department of Consumer Affairs and the New York State ("State") Department of Environmental Conservation ("SDEC") and fraudulently obtaining dumping permits from the City's Department of Sanitation ("CDOS") and the City's Department of Transportation ("CDOT"). In addition, certain defendants engaged in a fraudulent scheme with respect to the disposal of infectious medical waste. The evidence presented at the 12-week trial, taken in the light most favorable to the government, revealed the following.

  1. The Illegal Dumping Scheme

    Waste disposal in New York City is subject to stringent regulations adopted primarily in recognition of health and environmental dangers. "Clean waste" or "clean fill," which generally includes clean earth and/or ashes, dirt, concrete, rock, gravel, stone, slag, and sand, is often used to upgrade building sites, and upon obtaining the proper permits, a contractor may dump specified quantities of clean fill on any identified location. For other types of waste, however, the regulations are more

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    restrictive. Private carters seeking to dispose of waste other than clean waste within the City must use a City-owned landfill. The principal City landfill is the Fresh Kills Sanitary Landfill ("Fresh Kills") on Staten Island. Under regulations promulgated by the City and SDEC, carters must pay the City a dumping fee for use of Fresh Kills. From March to October 1988, this fee was $18.50 per cubic yard of putrescible trash and construction or demolition debris; the fee for asbestos, which was classified as hazardous waste and required greater disposal precautions, was significantly higher.

    Arlington Yard, a 110-acre former railroad yard located several miles from Fresh Kills, contains the largest undeveloped parcel of real property on Staten Island. Though it still contained some remnants of former rail operations and some small piles of refuse, until mid-1988 Arlington Yard was overgrown with vegetation and trees, attracted wildlife, and was considered suitable for residential development.

    In 1988, some 72 acres of Arlington Yard were owned by CSX, an entity headquartered in Virginia. CSX had previously sold two peripheral segments of the Yard to one Kenneth I. Wilpon; the Wilpon parcels were managed by W & W Properties ("W & W"), a partnership formed by Wilpon and Fred E. Weiss, a Staten Island real estate developer. (As discussed in greater detail in Part II.A. below, Weiss, originally named as a defendant in this action, was murdered prior to trial.) In 1988, W & W proposed to CSX that clean fill be placed on their adjoining properties to prepare the land for development. CSX considered the proposal but never gave permission to Wilpon, W & W, or defendants to place any waste, clean or otherwise, on its property.

    In the spring of 1988, Paccione and Vulpis formed defendant A & A Land Development ("A & A") and obtained permits from CDOT, CDOS, and SDEC, for the operation by A & A of a clean fill operation on the W & W land. Defendants never had authorization from CSX to use its part of Arlington Yard, and they never sought authorization to dump anything other than clean fill on the W & W portion of the Yard. Nonetheless, from May until mid-September 1988, A & A proceeded to operate a full-scale commercial dump at Arlington Yard, on both W & W and CSX land. Trucks filled with putrescible garbage, construction and demolition debris, medical waste, and asbestos dumped their loads into recently excavated pits. When the pits were filled, more waste material was heaped on, creating a plateau some 20 to 30 feet high. The heap was then covered with a thin layer of the "clean" dirt that had been excavated to create the pits, so that the dump appeared to consist entirely of clean fill.

    During the A & A dump's first two months of operations, CSX continued to consider W & W's proposal to put clean fill on CSX property, mistakenly believing that dumping was proceeding only on the W & W land. In June, Paccione mailed CSX a letter falsely reassuring it of the quality of the A & A operation. For example, the letter stated that daily inspections and testing were being conducted; in fact there were no such inspections. Paccione also stated that "[a]ll material delivered to the site comes from various excavation and construction sites"; instead much of the material brought to the site was garbage, medical waste, and asbestos.

    CSX executives visited Arlington Yard in late July and only then became aware that a dumping operation was underway on CSX's land. They immediately instructed Paccione, Vulpis, and Weiss in person to cease all dumping on CSX property; CSX gave the same instructions to Wilpon and Weiss by telephone and in writing. In a visit in early August, CSX executives again toured the property; they saw garbage in a pit and smelled foul odors. They repeatedly wrote to Paccione, Vulpis, Wilpon, and Weiss, stating that the dumping on CSX's property was unauthorized. In mid-August, having failed to get defendants to stop using its property, CSX obtained a temporary restraining order barring A & A from CSX's land. Defendants ignored the restraining order and continued to pile...

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