960 F.2d 1099 (2nd Cir. 1992), 91-1018, United States v. Minicone
|Docket Nº:||91-1018, 91-1020, 91-1062, 91-1319, 91-1334.|
|Citation:||960 F.2d 1099|
|Party Name:||UNITED STATES of America, Appellee, v. Jack J. MINICONE, Jr., also known as Jake; Jack Zogby, also known as Turk; Anthony J. Inserra; Benedetto Carcone, also known as Benny; Russell E. Carcone, Appellants. Nos. 91, 295-297 and 721-723, Dockets 91-1014, 91-1015,|
|Case Date:||January 23, 1992|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Dec. 4, 1991.
As Amended on Petition for Rehearing April 13, 1992.
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Emil M. Rossi, Syracuse, N.Y. (John A. Cirando, Patrick J. Haber, and Ivette Iza, on the brief), for appellant Jack J. Minicone, Jr.
Edward Z. Menkin, Syracuse, N.Y., for appellant Jack Zogby.
David Lenefsky, New York City, for appellant Anthony J. Inserra.
Anthony J. LaFache, Utica, N.Y., for appellant Benedetto Carcone.
Joseph E. Fahey, Syracuse, N.Y. (Wiles & Fahey, on the brief), for appellant Russell E. Carcone.
Andrew G. Levchuk, Atty., U.S. Dept. of Justice, Washington, D.C. (Frederick J. Scullin, Jr., U.S. Atty., Kevin E. McCormack, and Edward R. Broton, Asst. U.S. Attys., Albany, N.Y., on the brief), for appellee.
Before: TIMBERS, MINER and ALTIMARI, Circuit Judges.
TIMBERS, Circuit Judge:
Appellants Jack J. Minicone, Jr., Jack Zogby, Russell E. Carcone, and Benedetto Carcone appeal from judgments entered December 28, 1990 and January 2, 1991 after a jury trial in the Northern District of New York, Howard G. Munson, District Judge, convicting them of conducting the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) (1988), and of conspiring to conduct and participate in the affairs of an enterprise in violation of 18 U.S.C. § 1962(d) (1988). Appellant Anthony J. Inserra appeals from the judgment entered January 2, 1991 convicting him of conspiring to conduct and participate in the affairs of an enterprise in violation of 18 U.S.C. § 1962(d). Zogby also appeals from the judgment entered January 2, 1991 convicting him of conspiring to receive and transport stolen property in violation of 18 U.S.C. § 371 (1988).
Appellants' chief contentions on appeal are that there was insufficient evidence to support their convictions; that the district court erred in instructing the jury; that the district court erred in not declaring a mistrial; and that the district court erred in sentencing them. The government cross-appeals, contending that the district court erred in applying the Sentencing Guidelines.
We affirm the convictions and the sentences of all appellants, except we vacate Minicone's sentence and remand his case to the district court for the limited purpose of resentencing him in accordance with the Sentencing Guidelines.
We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Following a jury trial, Minicone, Zogby, Benedetto Carcone and Russell Carcone were convicted of conducting the affairs of an enterprise through a pattern of racketeering activity (RICO), in violation § 1962(c). They and Inserra also were convicted of conspiring to conduct and participate in the affairs of an enterprise through a pattern of racketeering activity (RICO conspiracy), in violation of § 1962(d). Zogby was convicted of conspiring to receive and transport stolen property, in violation of § 371.
Appellants' convictions stemmed from their alleged involvement in a wide-ranging criminal enterprise that profited from extortion, loansharking, illegal gambling, and trafficking in stolen property during the period from approximately 1973 to 1989. The alleged enterprise was centered in Utica, New York. It was run by unindicted co-conspirators Anthony Falange and Angelo Conte; both Falange and Conte died before the indictment in this case was returned. Cooperating witnesses Dennis Pritchard and Michael Andrello also participated in the enterprise.
The following is a brief account of appellants' principal activities as disclosed by the evidence at trial.
In 1973, Minicone and Inserra asked Pritchard to "do a score" on two local bookmakers, Philip and Frank DeFazio, after Falange and Conte had been approached by two individuals who were owed money by the DeFazios. Pritchard and another man proceeded to rough up the DeFazios and stole $8,000 in cash from them, $800-900 of which they gave to Minicone and Inserra. Minicone and Inserra did not "do the score" themselves because they feared they would be recognized by the DeFazios.
In 1976, Minicone, Zogby, and Inserra decided to kill Al Marrone shortly after his release from prison because they feared that Marrone wanted to kill Falange, and possibly them as well. They feared also that Marrone wanted to take over their territory. Minicone, Zogby, and Inserra began planning Marrone's murder six months beforehand. They initially contemplated paying $10,000 to an inmate at the penitentiary where Marrone was incarcerated. They rejected that idea, however, and proceeded to interview several other potential "hitmen". Ultimately, they hired Edward Noel, who had spent time in prison with Zogby, to help them kill Marrone. Inserra, Minicone, Zogby and Pritchard met with Noel in the early fall 1976 in a restaurant in Utica to plan the murder. In late September, Inserra and the others showed Noel one of the weapons to be used on Marrone, a semi-automatic rifle with field scope. Two to three weeks before Marrone's murder, Minicone asked to borrow Pritchard's .38 caliber pistol because he believed his own handgun might not be powerful enough to protect him in the event Marrone decided to strike first.
On the night of October 2, 1976, while Minicone and Inserra kept their distance and monitored a police scanner, Noel, Zogby, and another man shot Marrone dead on the sidewalk in front of his girlfriend's home.
Minicone and Inserra were indicted for Marrone's murder. The indictments were dismissed because Noel was a fugitive at the time, and the state did not have the nonaccomplice corroboration required by New York law. The state accepted a plea from Zogby to a lesser charge of soliciting murder, since Pritchard was not available to testify at that time. Zogby later confessed to his participation in the murder while talking with District Attorney Investigator Robert Graziano in Utica. Zogby claimed, however, that he had not fired the shots that killed Marrone.
On October 23, 1983, Thomas Bretti was injured when a bomb on the steps of his home exploded as he approached. The bomb had been made by government witness Andrello. It was planted by Minicone who had been assigned a contract on Bretti's
life by Anthony Falange. Bretti had stopped paying some Utica bookmakers and had gotten into heated arguments with Falange and Louis Brindisi, Falange's attorney.
Appellants engaged regularly in the extortion of local bookmakers. Inserra once stated to Pritchard that "[t]he way we collect money is we scare people, we put fear in them, we rough them up. We have to use violence, but as long as they are scared they will pay." The ubiquitous Carl Mazza helped insure that bookmakers did not fall too far behind in their payments. Local bookmakers were forced to make regular stops at Benny's Swap Shop at 512 Albany Street, Utica, a headquarters of appellants, in order to make their monthly "protection payment".
George "Butch" Sandouk, a longtime Utica bookmaker, regularly stopped by Benny's Swap Shop to make protection payments to the enterprise. On numerous occasions he was observed delivering the payments to Benedetto Carcone, Russell Carcone, and Minicone. On January 12, 1988, prior to Sandouk's arrival at the Swap Shop, Benedetto Carcone informed Minicone that Sandouk was "like clockwork." When Sandouk arrived, Minicone and Benedetto Carcone discussed requiring Sandouk to pay extra during the basketball season:
"Carcone: Hey, how are you, Butch?
Minicone: ... [D]id he tell you about the baskets?
Sandouk: What baskets?
Minicone: You have to pay for the baskets, the baskets.
* * * * * *
Sandouk: Yeah ... alright ... this is towards ...
Minicone: Yours is twenty-five because your [sic] small, right?
Sandouk: Yeah, I know.
Carcone: And you don't have to ride around saying anything to anybody that your [sic] paying this thing.
Minicone: No, he knows better, he had his first time ... he knows better.
* * * * * *
Carcone: If anybody asks you, you're doing the same as you were ... did before.
Sandouk: Nobody knows nothing, I don't say nothing."
George "Hoppy" Tamer operated a bookmaking operation out of Utica for many years. He also ran a card game that allowed him to take a cut of the pot. Around 1983, Tamer was approached by Anthony Falange, who told him to make payments of $50-per-week so he "wouldn't have any problems". He originally made the payments directly to Falange. In approximately 1986 or 1987, at the request of Falange, Tamer began making the payments to Benedetto Carcone. Tamer usually sent his brother-in-law, Hiklel Yaghy, to make the payments. Yaghy would deliver the payments to Carcone at the Swap Shop at 512 Albany Street. Tamer also made occasional payments to Minicone. On one occasion, Tamer paid Minicone while he was seated at a bar with Inserra and Pritchard. After Tamer walked away, Minicone said, "This is a joke. Its like taking candy from a baby with these people. Keep them scared, they keep paying. They even find...
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