U.S. v. DiNome

• Decision Date: 22 January 1992
• Docket Number: 8,D,13,12 and 14,Nos. 9,7,10,11,15,s. 9
• Citation: 954 F.2d 839
• Parties: 34 Fed. R. Evid. Serv. 909 UNITED STATES of America, Appellee, v. DiNOME, et al., Defendants, Salvatore Mangialino, Anthony Senter, Joseph Testa, Ronald Ustica, Carlo Profeta, a/k/a Carlos a/k/a Carmello, Douglas Rega, Judith May Hellman, Wayne Hellman, and Sol Hellman, Defendants-Appellants. ockets 89-1458, 89-1459, 89-1527, 89-1537, 89-1550, 89-1556, 90-1229, 90-1230 and 90-1263.
• Court: U.S. Court of Appeals — Second Circuit

Page 839

954 F.2d 839

34 Fed. R. Evid. Serv. 909

UNITED STATES of America, Appellee, v. DiNOME, et al., Defendants Salvatore Mangialino, Anthony Senter, Joseph Testa, Ronald Ustica, Carlo Profeta, a/k/a Carlos a/k/a Carmello, Douglas Rega, Judith May Hellman, Wayne Hellman, and Sol Hellman Defendants-Appellants.

Nos. 9, 7, 8, 11, 10, 15, 13, 12 and 14, Dockets 89-1458,

89-1459, 89-1527, 89-1537, 89-1550, 89-1556,

90-1229, 90-1230 and 90-1263.

United States Court of Appeals Second Circuit.

Argued Sept. 23, 1991.

Decided Jan. 22, 1992.

Harriet B. Rosen, New York City, for defendant-appellant Salvatore Mangialino.

Herald Price Fahringer, New York City (Diarmuid White, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, of counsel), for defendant-appellant Joseph Testa.

Benjamin Brafman, New York City, for defendant-appellant Anthony Senter.

Lee A. Ginsberg, New York City (Freeman, Nooter & Ginsberg, of counsel), for defendant-appellant Ronald Ustica.

Daniel Nobel, New York City, for defendant-appellant Carlo Profeta.

David L. Lewis, New York City (Lewis & Fiore, of counsel), for defendant-appellant Douglas Rega.

David Cooper, New York City, for defendant-appellant Judith May Hellman.

Lorin Duckman, New York City, for defendant-appellant Wayne Hellman.

Jay Gregory Horlick, Brooklyn, N.Y., for defendant-appellant Sol Hellman.

J. Gilmore Childers, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Miguel A. Estrada, James A. Goldston, Michele Hirshman, Cari Robinson, Cathy Seibel, Daniel C. Richman, Helen Gredd, Asst. U.S. Attys., of counsel), for appellee.

Before WINTER and ALTIMARI, Circuit Judges, and POLLACK, District Judge. ^*

WINTER, Circuit Judge:

This is an appeal arising out of a sixteen-month jury trial involving a host of racketeering and other criminal charges, detailed in the margin, ¹ based on the activities of Appellants Testa, Senter, Mangialino, Profeta, Ustica, Rega, and the now-deceased Sol Hellman ² were either members of, or persons demonstrated to have ongoing relations with, the DeMeo Crew. Appellants Wayne and Judith May Hellman were the son and daughter-in-law of Sol Hellman. The DeMeo Crew engaged in a vast array of illegal activities, including kidnapping, loansharking, narcotics distribution, pornography, extortion, firearms conspiracy, and the operation of an international stolen car ring. From the early 1970's to the 1980's, these activities were furthered by calculated violence, including the brutal murders of various persons viewed by the Crew as a threat to their business. Eventually, the Crew's leader, Roy DeMeo, was himself murdered.

                the so-called DeMeo Crew, a component of the Gambino organized crime family.   Over 1000 pages of briefs have been filed raising dozens of common and individual claims of error.   Except for those raised by Wayne and Judith Hellman, every such claim is meritless.   Indeed, all but a few are so meritless that we dispose of the great bulk of them in a summary order, filed simultaneously with this opinion, pursuant to our Local Rule § 0.23.   This published opinion is limited to a discussion of certain claims common to all appellants, the reasons for a reversal as to two appellants, and certain arguments raised with regard to convictions for a civil rights murder
                

A seventy-eight count indictment charged twenty-four persons with various crimes in connection with the activities of the DeMeo Crew. A number of the charges in the original indictment were severed, and an initial trial was held on non-RICO auto theft and exportation charges. A second trial addressed the RICO and remaining substantive charges. This appeal arises from the convictions in the second trial.

A. Length and Complexity of Trial

Appellants argue that the length of the trial, the complexity of the factual and legal issues, and the sheer numbers of defendants, witnesses, and crimes charged, denied them a fair trial. In this regard, they rely principally on United States v. Casamento, 887 F.2d 1141 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990), in which we expressed "misgivings about trials of [a similar] magnitude." See id. at 1151. However, we also "recognize[d] that district judges must retain a considerable degree of discretion in determining whether, on balance, the fair administration of justice will be better served by one aggregate trial of all indicted defendants or by two or more trials of groups of defendants." Id.; United States v. Chang An-Lo, 851 F.2d 547, 566 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). A district court's denial of a motion to sever will, therefore, be reversed only upon a showing that the district court clearly abused its discretion. Id.; Casamento, 887 F.2d at 1149.

There is no support in caselaw or in logic for the proposition that a lengthy trial, a large number and variety of charges, and numerous defendants violate due process without a showing that the issues were actually beyond the jury's competence. No such showing was made in the instant matter. The crimes here may have been large in number and variety, but they were rather ordinary in nature, except in their viciousness. The evidence could also be understood without difficulty, the alleged complexity stemming more from the abundance of evidence than from the subtlety of the analysis needed to consider it.

The claim that the jury must have lacked the capacity to understand the instructions given it is thus sheer speculation. As we stated in Casamento, Although the jury had to evaluate a tremendous amount of evidence, the nature of the evidence and the legal concepts involved in the case were not extraordinarily difficult to comprehend, as they might be, for example, in a complex antitrust case involving abstruse economic theories or an employment discrimination case involving technical statistical evidence and formulae.

887 F.2d at 1150. The voluminous body of evidence, the careful instructions of the trial judge regarding the right of each defendant to individualized consideration, the opportunity afforded the jurors to take notes throughout the trial, the outline of the elements of the offenses provided by the judge to the jurors, the numerous requests for readbacks, the length of the deliberations, and the absence of any concrete evidence of unusual juror confusion, reinforce our conclusion that the jury comprehended the case.

B. "Spillover" Prejudice

Many appellants claim error in so-called "spillover" prejudice resulting from the admission of evidence of violent activities engaged in by other members and associates of the DeMeo Crew. Separate trials, they assert, would have avoided this prejudice.

The particular claims of each defendant regarding spillover prejudice are addressed in the summary order. However, we note here that the government must prove an enterprise and a pattern of racketeering activity as elements of a RICO violation. 18 U.S.C. § 1962(c). Proof of these elements may well entail evidence of numerous criminal acts by a variety of persons, and each defendant in a RICO case may reasonably claim no direct participation in some of those acts. Nevertheless, evidence of those acts is relevant to the RICO charges against each defendant, and the claim that separate trials would eliminate the so-called spillover prejudice is at least overstated if not entirely meritless.

In the present case, the evidence of numerous crimes, including the routine resort to vicious and deadly force to eliminate human obstacles, was relevant to the charges against each defendant because it tended to prove the existence and nature of the RICO enterprise, the DeMeo Crew. Such evidence was also relevant to prove a pattern of racketeering activity by each defendant. See United States v. Friedman, 854 F.2d 535, 563 (2d Cir.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989). As we stated in United States v. Indelicato,

In some cases both the relatedness and the continuity necessary to show a RICO pattern may be proven through the nature of the RICO enterprise. For example, two racketeering acts that are not directly related to each other may nevertheless be related indirectly because each is related to the RICO enterprise. The nature of the enterprise may also serve to show the threat of continuing activity. Where the enterprise is an entity whose business is racketeering activity, an act performed in furtherance of that business automatically carries with it the threat of continued racketeering activity.... We do not suggest ... that the defendant is to be held accountable for the racketeering acts of others. We simply note that such an association may reveal the threat of continued racketeering activity and thereby help to establish that the defendant's own acts constitute a pattern within the meaning of RICO.

865 F.2d 1370, 1383-84 (2d Cir.1989) (en banc). The evidence of the DeMeo Crew's various criminal activities was, therefore, relevant to the RICO charges against each appellant--save Wayne and Judith Hellman, for reasons discussed infra--because it tended to prove: (i) the existence and nature of the RICO enterprise and (ii) a pattern of racketeering activity on the part of each defendant by providing the requisite relationship and continuity of illegal activities.

Appellants' "spillover" claim is thus misnamed. The typical spillover claim is that evidence admissible against only one defendant is prejudicial to all defendants and that individual trials should have been held to avoid that prejudice. See, e.g., United States v. Cervone, 907 F.2d 322, 341-42 (2d Cir.1990), cert. denied, --- U.S. ---, 111 Presumably, a RICO defendant could stipulate that the charged RICO enterprise existed and that the predicate acts, if proven, constituted the requisite pattern of racketeering activity. The evidence of crimes by others might then be excluded, and...