998 F.2d 1112 (2nd Cir. 1993), 271-274, United States v. Bianco

Docket Nº:271-274, 287, 275 and 276, Dockets 91-1672, 91-1701 to 91-1706.
Citation:998 F.2d 1112
Party Name:UNITED STATES of America, Appellee, v. Nicholas L. BIANCO, a/k/a Nicky; Louis R. Failla, a/k/a Louie; Gaetano J. Milano, a/k/a Costello; Americo Petrillo, a/k/a Rico, a/k/a Cigar; Frank A. Pugliano, a/k/a Frankie Pugs; Louis Pugliano, a/k/a Louie Pugs; Salvatore D'Aquila, Jr., a/k/a Butch, Defendants-Appellants, Richard Joseph Beedle; John F. Casta
Case Date:July 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1112

998 F.2d 1112 (2nd Cir. 1993)

UNITED STATES of America, Appellee,

v.

Nicholas L. BIANCO, a/k/a Nicky; Louis R. Failla, a/k/a

Louie; Gaetano J. Milano, a/k/a Costello; Americo

Petrillo, a/k/a Rico, a/k/a Cigar; Frank A. Pugliano, a/k/a

Frankie Pugs; Louis Pugliano, a/k/a Louie Pugs; Salvatore

D'Aquila, Jr., a/k/a Butch, Defendants-Appellants,

Richard Joseph Beedle; John F. Castagna, a/k/a Sonny;

Frank Colantoni; John E. Farrell, a/k/a Jack Sailorman,

a/k/a Jack Fast; Matthew L. Gugliemetti, Jr., a/k/a Matty;

Jack Johns, a/k/a Jackie, Defendants.

Nos. 271-274, 287, 275 and 276, Dockets 91-1672, 91-1701 to 91-1706.

United States Court of Appeals, Second Circuit

July 19, 1993

Argued Nov. 18, 1992.

Page 1113

Robert J. Devlin, Jr., Assistant U.S. Atty., D. Conn. (Albert S. Dabrowski, U.S. Atty., John H. Durham, Chief, Crim. Div., and Peter S. Jongbloed, Asst. U.S. Atty., of counsel), for appellee.

Wendy Sibbison, Greenfield, MA (Stephanie A. Levin and Holly Sobel Armitage, of counsel), for defendant Milano.

Barry M. Fallick, New York City (Rochman Platzer Fallick Rosmarin & Sternheim, Bobbi C. Sternheim, of counsel), for defendant D'Aquila, Jr.

Jeremiah Donovan, Old Saybrook, CT, for defendant Failla.

Richard S. Cramer, Wethersfield, CT, for Defendant Petrillo.

William A. Dimitri, Jr., Providence, RI (Dimitri & Dimitri and Edward J. Romano, of counsel), for defendant Bianco.

Vincent A. Bongiorni, Springfield, MA, for defendant Frank Pugliano.

Harry L. Manion, Boston, MA (Anthony Cardinale and Vincent A. Bongiorni, of counsel), for defendant Louis Pugliano.

Page 1114

Before PRATT and ALTIMARI, Circuit Judges, and HEANEY, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

Trial of this organized-crime racketeering case commenced on April 17, 1991, and continued for 45 days. All seven defendants were convicted of belonging to a RICO conspiracy in violation of 18 U.S.C. § 1962(d). Five of them were convicted of related RICO substantive charges under 18 U.S.C. § 1962(c). Five were convicted of either conspiracy or substantive violations of 18 U.S.C. § 1959, which prohibits violent crime in aid of racketeering. Two were convicted of wire fraud in violation of 18 U.S.C. § 1343. One was convicted of extortion in violation of 18 U.S.C. § 894(c). All defendants have appealed.

The RICO charges, the principal crimes at issue, focused on the organized-crime Patriarca family of La Cosa Nostra (LCN) as the enterprise, which operated in New England over a period of many years under the leadership of Raymond L.S. Patriarca, who died in 1984 after designating his son, Raymond J. Patriarca, and William Grasso of New Haven, Connecticut, to head the enterprise.

The RICO charges were amply supported at trial by evidence that established not only the existence and history of the Patriarca family enterprise, but also each defendant's participation, or agreement to participate, in at least two of a long list of predicate acts of racketeering activity, including murder, drug trafficking, extortion, obstruction of justice, and gambling.

On appeal, defendants raise 42 different points and argue them in a total of 411 pages of briefing. They challenge the indictment, the jury charge, the sentences, the makeup of the jury, numerous evidentiary and procedural rulings, and the sufficiency of the evidence. To all that, the government responds with two briefs totaling 270 pages.

We have carefully reviewed all of defendants' arguments in light of the record, briefs, and oral argument, and we find most of them to be so lacking in merit as to be unworthy of discussion. One of defendants' arguments--their all-out attack against the "roving bug" tape recording of their LCN initiation ceremony--requires extensive analysis. Two other arguments--a claimed flaw in the makeup of the jury panel, and the admission of evidence obtained from a search of defendant Failla's private home in East Hartford, Connecticut--require brief comment. We will discuss first the latter two arguments, and then take up defendants' challenge to the government's "roving bug".

  1. Jury Panel.

    Defendant Milano is joined by his co-defendants in contending, for the first time on appeal, that the systematic, albeit inadvertent, exclusion of Blacks and Hispanics from the qualified jury wheel of the Hartford division of the District of Connecticut, between late 1989 and late August 1992, resulted in a violation of their sixth-amendment right to a fair trial. During this period, through an apparent computer-related error in processing names and addresses, the wheel included no citizens from the division's principal cities, Hartford and New Britain, where two-thirds of its voting-age, minority population resides. Defendants argue that this denied them a fair cross-section of jurors in the community.

    Defendants base their claim, in large measure, on Judge T.F. Gilroy Daly's order dated August 26, 1992, made in a separate case, where the same defective jury panel had been used. United States v. Osorio, 801 F.Supp. 966 (D.Conn.1992) (inadvertent exclusion of residents of New Britain and Hartford communities from qualified jury wheel, resulting in exclusion of approximately two-thirds of Blacks and Hispanics in the division as source of names for grand jury selection, constituted systematic exclusion of those groups from jury-selection process and gave rise to prima facie fair-cross-section violation).

    Osorio may well be distinguishable, because it was based on a timely pretrial challenge to the juror-selection process, and it involved a grand jury, not a petit jury. We do not, however, address the merits of defendants' challenge to their jury panel on this direct appeal after conviction. The issue was

    Page 1115

    not presented to the district court; the record before us in this case provides an inadequate basis to resolve the issue. We therefore leave the issue to be pursued through whatever post-conviction remedies defendants may still have available to them.

  2. Admission of Evidence Seized from Failla's Home.

    Defendant Failla contends that the trial court erred in refusing to suppress certain evidence that was seized during a search of his home. Failla specifically claims that the warrant authorizing the search was defective because it was not particular enough to limit the scope of the search. The government responds by arguing that (1) the descriptions used in the warrant at issue are more narrow than descriptions upheld in other cases; (2) even if the warrant was not particular enough, any ambiguity in the warrant is resolved by reference to the affidavit; and (3) even if we were not to rely on the supporting affidavit, we should uphold the search under the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

    1. Background Facts.

    The district court issued a warrant to search Failla's home at 58 Cloverdale Drive, East Hartford, Connecticut, and a small shed outside the home in order to seize the following items:

    [N]otes, Ledgers, Envelopes, Papers, and Records Containing Initials, Names, Addresses, Dollar Amounts, Codes, Figures, and the Like: United States Currency.

    No further limitation was made, nor was there any reference in the warrant itself to loansharking or any other crime. However, the supporting affidavit of special agent Richard T. Roberts set forth additional detail. It stated that the agents were looking for evidence of Failla's loansharking, described Failla's ongoing extortionate activities, and set forth portions of four conversations in which Failla stated that in his home he had records of his activities.

    While the agents were executing their search of the house, they brought particular items they found to special agent William Hutton, who decided whether or not they should be seized. Hutton had familiarized himself with the warrant and its supporting affidavit, and was aware that he was looking for evidence of loansharking.

    2. Challenge to the Breadth of the Warrant.

    Failla moved in the district court to suppress any evidence seized during the course of the search on the ground that the warrant failed to particularly describe the property to be seized. This motion was denied after a hearing, and a number of the seized items were introduced during the trial.

    The fourth amendment requires that warrants "particularly describ[e] * * * the person or things to be seized." U.S. Const. amend. IV. The particularity requirement "makes general searches * * * impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). It prevents a "general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971).

    The government points out that where agents have done all that could reasonably have been expected in drawing up a warrant, the inability to provide a more precise description of the criminal instruments to be found will not render the warrant defective. See, e.g., United States v. Young, 745 F.2d 733, 759 (2d Cir.1984) (courts tolerate greater degree of ambiguity where agents have done best they reasonably could under circumstances), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Dunloy, 584 F.2d 6, 8 (2d Cir.1978) (warrant not impermissibly broad when officers were unable under circumstances to provide more precise description).

    Those cases, however, do not help the government, for each involved a situation where...

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