U.S. v. Amuso

• Decision Date: 20 April 1994
• Docket Number: No. 135,D,135
• Citation: 21 F.3d 1251
• Parties: 39 Fed. R. Evid. Serv. 569 UNITED STATES of America, Appellee, v. Vittorio AMUSO, also known as Jesse, also known as Vic, Defendant-Appellant. ocket 92-1672.
• Court: U.S. Court of Appeals — Second Circuit

Page 1251

21 F.3d 1251

39 Fed. R. Evid. Serv. 569

UNITED STATES of America, Appellee, v. Vittorio AMUSO, also known as Jesse, also known as Vic Defendant-Appellant.

No. 135, Docket 92-1672.

United States Court of Appeals Second Circuit.

Argued Sept. 20, 1993.

Decided April 20, 1994.

Judd Burstein, New York City (Marc Fernich, Kim P. Bonstrom, of counsel), for defendant-appellant.

Kevin P. McGrath, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y., Geoffrey S. Mearns, Gregory J. O'Connell, Asst. U.S. Attys., E.D.N.Y., of counsel), for appellee.

Before: VAN GRAAFEILAND, WALKER, and JACOBS, Circuit Judges.

WALKER, Circuit Judge:

Defendant-appellant Vittorio Amuso appeals from a judgment of conviction on charges of racketeering, extortion, fraud, bribery, and murder. The government charged Amuso, in a fifty-four count indictment, with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1962(c) and (d), as well as tax fraud and substantive and conspiracy violations constituting the RICO predicate acts. After a jury trial in the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge ), Amuso was convicted on all fifty-four counts and sentenced, inter alia, to life in prison.

On appeal, Amuso challenges evidentiary rulings which (1) allowed evidence of Amuso's flight and continued absence to be used as evidence of consciousness of guilt; (2) excluded certain extrinsic negative character evidence pertaining to a prosecution witness; (3) admitted evidence of criminal conduct by one of Amuso's co-conspirators; and (4) allowed expert testimony regarding the structure and terminology of organized crime families. Amuso also claims that the district court erred in deciding to empanel an anonymous and sequestered jury.

We affirm.

BACKGROUND

In an earlier indictment filed on May 30, 1990, not the subject of the trial below or this appeal, Amuso and fourteen codefendants were charged in various RICO counts with corrupting the profitable window replacement industry in New York City. That indictment (the "Windows indictment") alleged that the defendants gained control of the union responsible for window replacement in New York City, Local 580 of the Architectural and Ornamental Ironworkers, and extorted illegal payoffs from window replacement companies in exchange for labor peace. The Windows indictment also charged as part of the scheme that the defendants controlled window manufacturing and installation companies, rigged bids for public window replacement contracts to favor their companies, and forced legitimate companies out of the market through intimidation and threats of violence.

When the trial on the Windows indictment (the "Windows trial") began on May 8, 1991, Amuso was a fugitive. In May 1990, upon learning of the impending Windows indictment, Amuso had fled New York City and gone into hiding. Amuso remained a fugitive until July 1991 when FBI agents captured him in Scranton, Pennsylvania and brought him back to New York.

In April 1992, the grand jury returned a superseding indictment (the "indictment") that was the basis for the trial in the district court and this appeal. In addition to the Windows indictment charges, the indictment charged Amuso with tax fraud conspiracy and with fourteen murders, attempted murders, and/or conspiracies to murder, at least five of which were said to have been committed while Amuso was a fugitive. The indictment alleged that as boss of the Luchese crime family, Amuso possessed ultimate and exclusive authority to approve murders on behalf of the family, that he exercised this authority frequently, and that he retained this power while on the run.

At a pretrial hearing, Judge Nickerson granted the government's motion for an anonymous and sequestered jury. In May 1992, the Windows and murder charges, along with a charge that Amuso conspired to defraud the United States by filing a false and misleading tax return, proceeded to trial.

The Trial

1. The Windows Counts

The evidence adduced at trial to prove the Windows counts was substantial and is not challenged on appeal. It included testimony by Peter Savino, Amuso's long-time associate in the window industry, who described how Amuso and the heads of other New York crime families effectively controlled the bidding for New York City Housing Authority window installation contracts. Savino's testimony was corroborated by tape recorded conversations among the Windows conspirators, surreptitiously obtained by Savino over an eighteen month period during which he was cooperating with the government. In the conversations, high ranking officials from several crime families discussed the extensive nature of organized crime's control over the window replacement industry in New York and Amuso's involvement in the enterprise. Additionally, Peter Chiodo, a former "captain" of the Luchese family turned government witness, testified that beginning in December 1989 he was Amuso's agent in the Windows conspiracy at the highest level, supervising the labor racketeering activities of Local 580 on the Luchese family's behalf. Chiodo's testimony was also corroborated by tape recorded evidence.

2. The Murder Counts

The primary evidence in support of the murder related charges came through the testimony of Chiodo and another former Luchese family captain, Alphonse D'Arco. D'Arco and Chiodo described a murderous campaign by Amuso between 1988 and 1991 to eliminate anyone he suspected of disloyalty, including an entire faction of the Luchese family and, ultimately, D'Arco and Chiodo themselves. They testified that as boss of the Luchese family, Amuso ordered either one or both of them to carry out thirteen of the murders or attempted murders charged in the indictment. D'Arco also testified that he was ordered to murder the fourteenth intended victim, Chiodo, before he himself became the target of a murder contract ordered The first of the murders charged in the indictment was that of Sorecho "Sammy the Arab" Nalo. Describing the events leading to Nalo's murder, Chiodo testified that Amuso assigned him to supervise the illegal gambling operation of Spyredon "Spiros" Velentzas. Velentzas told Chiodo that Nalo was encroaching on his illegal gambling activities, a portion of which benefitted the Luchese family, and requested the aid of the Luchese family in murdering Nalo. According to Chiodo, Amuso was hesitant at first because Velentzas was not formally affiliated with an organized crime family, but after Chiodo told Amuso that Velentzas feared for his life, Amuso told Chiodo that it was "okay" to proceed with Nalo's murder. Chiodo assigned the murder to several Luchese family soldiers. They subsequently shot Nalo to death in his travel agency on October 25, 1988.

by Amuso. Other witnesses and documents corroborated some of the murder and attempted murder charges, but the convictions on these charges depended primarily on the jury's crediting D'Arco's and Chiodo's testimony. In addition, a government expert testified that no murder by or on behalf of a member of an organized crime family can be carried out without approval of that family's boss.

On or about February 6, 1989, Thomas "Red" Gilmore was shot to death. D'Arco testified that in late 1988, Amuso told D'Arco that he suspected Gilmore of being an informant and that he wanted Gilmore killed. D'Arco met with Amuso periodically thereafter and, according to D'Arco, Amuso continued to press for Gilmore's murder. Eventually, the Luchese soldier assigned to the murder reported to D'Arco that it had been accomplished, and D'Arco in turn conveyed this information to Amuso.

Three months later on May 13, 1989, Michael Pappadio was bludgeoned and shot to death. D'Arco testified that he personally committed the murder with an accomplice, acting on Amuso's orders. Pappadio was a member of the Luchese crime family responsible for monitoring the family's interests in New York City's garment center. Amuso suspected Pappadio of "hiding shops"--that is, keeping extortion income for himself and not reporting it to Amuso. According to D'Arco, when Pappadio refused to comply with Amuso's orders to stay out of the garment district and to bring in certain books and records for inspection, Amuso ordered D'Arco to kill Pappadio. D'Arco described the murder, including his efforts to dispose of the body, and recounted that Amuso praised him when he reported that the murder had been carried out successfully. As corroboration, Chiodo testified to a conversation with Anthony "Gaspipe" Casso, Amuso's "consigliere" and second in command. Referring to Pappadio, Casso told Chiodo, "I've got to look that guy up." Chiodo understood this to mean that Casso was planning to have Pappadio killed. The government also introduced Amuso's tax returns, which showed income from a garment center company called Supreme Garment Carriers, Inc., to substantiate its claim that Amuso had an interest in the garment center.

On September 13, 1989, John Petrucelli, a soldier in the Luchese crime family, was shot to death. According to D'Arco, Petrucelli fell into disfavor with Amuso because he was hiding Constantine "Gus" Farace, an associate of the Bonanno crime family who was suspected of killing a Drug Enforcement Administration agent. Under increasing pressure from federal agents, Amuso instructed D'Arco to tell Petrucelli that "he should kill Gus Farace, and right away, or shoot himself." Shortly thereafter, Casso told D'Arco that Amuso was "fuming" about the Petrucelli situation, and that D'Arco should tell Michael Salerno, another Luchese family captain, to kill Petrucelli. Chiodo testified that Petrucelli was indeed a member of the Luchese family, and that he had discussed Petrucelli at a meeting with Amuso and Casso. At one point during the meeting Amuso said, "They say I kill my friends," which Chiodo understood to be a...