U.S. v. Salerno
| Decision Date | 19 May 1992 |
| Docket Number | D,Nos. 195,246,s. 195 |
| Citation | 964 F.2d 172 |
| Parties | UNITED STATES of America, Appellee, v Anthony SALERNO; Paul Castellano; Aniello Dellacroce; Gennaro Langella; Anthony Corallo; Salvatore Santoro; Christopher Furnari, Sr.; Philip Rastelli; Ralph Scopo; Carmine Persico; Stefano Canone; Anthony Indelicato, Defendants, Carmine Persico and Gennaro Langella, Defendants-Appellants. ockets 91-1277, 91-1315. |
| Court | U.S. Court of Appeals — Second Circuit |
Linda S. Sheffield, Atlanta, Ga., for defendant-appellant Carmine Persico.
Gerald J. McMahon, New York City, for defendant-appellant Gennaro Langella.
J. Gilmore Childers, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., Helen Gredd, Asst. U.S. Atty., S.D.N.Y. of counsel), for appellee.
Before MINER and MAHONEY, Circuit Judges, and MISHLER, * District Judge.
Defendants-appellants Carmine Persico and Gennaro Langella appeal from an order of the United States District Court for the Southern District of New York, Richard Owen, Judge, entered April 16, 1991 that denied their motion pursuant to 28 U.S.C. § 2255 (1988) to vacate their convictions affirmed in United States v. Salerno, 868 F.2d 524 (2d Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24, 25 (1989) (the "Commission case"). Persico and Langella seek to vacate these convictions as violative of the Double Jeopardy Clause of the Fifth Amendment because of their earlier convictions affirmed in United States v. Persico, 832 F.2d 705 (2d Cir.1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988) (the "Persico case").
Persico and Langella were initially convicted of substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) and (d) (1988), and related crimes in the Persico case. See Persico, 832 F.2d at 707-09. They then moved to dismiss the pending indictment in the Commission case, which also accused them of substantive and conspiracy RICO violations and related crimes, see Salerno, 868 F.2d at 527-28, on double jeopardy grounds. Their motion was denied, and we affirmed that denial in United States v. Langella, 804 F.2d 185 (2d Cir.1986), cert. denied, 488 U.S. 982, 109 S.Ct. 532, 102 L.Ed.2d 564 (1988). Persico and Langella were subsequently convicted in the Commission case, and reiterated their double jeopardy claim on direct appeal from that conviction. Following Langella, we rejected that challenge. See Salerno, 868 F.2d at 538.
On this appeal, Persico and Langella assert that the Supreme Court's subsequent decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), mandates that their convictions in the Commission case be vacated as violative of the Double Jeopardy Clause. We conclude, however, that: (1) Grady establishes a "new rule" which cannot be applied to Persico and Langella retroactively in a collateral challenge to their convictions in the Commission case; and in any event, (2) the application of the Grady rule would not call for reversal of their convictions in the Commission case. We accordingly affirm the district court's denial of their application for § 2255 relief.
The factual background for the convictions giving rise to this appeal has been recounted in numerous prior opinions, see, e.g., Salerno, 868 F.2d at 527-29; Persico, 832 F.2d at 707-09; Langella, 804 F.2d at 186-88, familiarity with which is assumed. We summarize that background here only to the extent necessary to frame the issues presented by this appeal.
The Persico indictment charged Persico, Langella, and twelve other defendants with participating and conspiring to participate in the affairs of an enterprise "often known as the Colombo Organized Crime Family of La Cosa Nostra" through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) and (d) (1988). The alleged pattern, insofar as it involved participation by Persico and Langella, consisted of a Hobbs Act conspiracy to extort money from certain New York City construction companies engaged in the concrete-pouring business, in violation of 18 U.S.C. § 1951 (1988) (Persico and Langella); extortion of ten named construction companies in violation of § 1951 (Langella); receipt of illegal payoffs from the same ten construction companies in violation of 29 U.S.C. § 186(b)(1) (1988) (Langella); embezzlement of union funds in violation of 29 U.S.C. § 501(c) (1988) (Langella); various acts of bribery of public officials in violation of 18 U.S.C. § 201(b)(1) & (3) and (c)(1)(A) (1988) (Persico and Langella); loansharking and loansharking conspiracy in violation of 18 U.S.C. §§ 891-892 and 894 (1988) (Langella); and conduct of an illegal gambling business in violation of 18 U.S.C. § 1955 (1988) and N.Y.Penal Law §§ 225.00 to .20 (McKinney 1989) (Langella). These counts also charged Langella with participation and conspiracy to participate in the affairs of the named enterprise through collection of unlawful debt in violation of 18 U.S.C. § 1962(c) and (d) (1988).
In addition, the Persico indictment alleged parallel counts of conspiracy to extort and bribery of a public official against both Persico and Langella, and of extortion, receipt of illegal payoffs, loansharking and loansharking conspiracy, and conduct of an illegal gambling business against Langella.
The Commission indictment charged Persico, Langella, and seven other defendants with conspiring to participate and participating in the affairs of an enterprise "often described as the 'Commission' of La Cosa Nostra" through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) and (d) (1988). Persico, Langella, and Ralph Scopo were the only defendants named in both indictments. 1 The indictment alleged that the Commission was a council of leaders of various organized crime families, distinct from these families, established to resolve interfamily disputes and "regulat[e] among the several La Cosa Nostra Families regarding the operation, conduct, and control of illegal activities," and to carry out "joint ventures" between families.
The Commission indictment primarily charged crimes relating to an extortionate conspiracy that "controlled the allocation of contracts to pour concrete on construction jobs where concrete costs exceeded two million dollars." The contracts were allocated to a group of construction companies engaged in that activity and known as the "Club." The alleged pattern of racketeering activity, insofar as it involved participation by Persico and Langella, consisted of a Hobbs Act conspiracy to extort money from "Club" members in violation of 18 U.S.C. § 1951 (1988), and fifteen separate extortions and attempted extortions in violation of § 1951.
The indictment further charged Persico and Langella with a parallel count of conspiracy to extort in violation of 18 U.S.C. § 1951 (1988); fifteen parallel counts of extortion and attempted extortion in violation of § 1951; and six corresponding counts of receiving illegal payoffs in violation of 29 U.S.C. § 186(b)(1) (1988).
The government furnished a bill of particulars in the Persico case that further specified the objectives and victims of the extortionate scheme. The bill of particulars stated that the conspiracy charged in the Persico indictment "was confined to extorting payoffs in connection with construction jobs in which the portion of the contract price relating to the pouring of concrete did not exceed $2 million," and that the extorted proceeds were intended solely "for the benefit of [the indicted defendants] and other members and associates of the Colombo Family." The bill of particulars also stated that the "extortion payments were not divided or intended to be divided among other New York Families of La Cosa Nostra or among the 'Commission' of La Cosa Nostra," and that the jobs involved in the Persico extortionate scheme "were not jobs that were allocated pursuant to an arrangement involving certain concrete contractors known as the 'Club.' "
Before the Persico trial began, Persico, Langella, and Scopo moved to sever the racketeering act and related count that charged a conspiracy to extort from the Persico indictment and join them for trial with the indictment in the Commission case. After reviewing both indictments, the district court denied the motion, ruling that the indictments charged two separate extortionate schemes. See United States v. Persico, 621 F.Supp. 842, 855-56 (S.D.N.Y.1985).
In the Persico trial, the government offered proof of the Commission conspiracy in order to delineate the bounds of the conspiracy charged against the Persico defendants and to provide background information for certain taped conversations. See Langella, 804 F.2d at 187-88. In the Persico summation, the prosecutor emphasized that the only conspiracy charged was the Colombo family's extortionate conspiracy concerning concrete contracts under two million dollars.
On June 13, 1986, the jury in the Persico case returned verdicts convicting Persico and Langella of all racketeering acts and substantive counts arising out of the Colombo Family's extortionate scheme. Id. at 188. Persico and Langella then moved to dismiss the indictment of them in the Commission case on the ground that the Double Jeopardy Clause barred their further prosecution in view of their convictions in Persico. Id. The district court denied the motion, and we affirmed. Id. at 188-90.
Persico and Langella contended in Langella that there was only one extortionate conspiracy concerning the concrete-pouring business, and that the government used two million dollars as an arbitrary dividing line to separate a single conspiracy and prosecute it as two separate conspiracies. Id. at 188. We rejected that view. We noted that whether...
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