U.S. v. Aulicino

• Citation: 44 F.3d 1102
• Decision Date: 05 January 1995
• Docket Number: 176 and 641,D,Nos. 175,s. 175
• Parties: UNITED STATES of America, Appellee, v. Robert AULICINO, Jr., David Cleary, and Louis Ruggiero, Jr., Defendants-Appellants. ockets 93-1883, 94-1027 and 94-1214.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1102

44 F.3d 1102

UNITED STATES of America, Appellee, v. Robert AULICINO, Jr., David Cleary, and Louis Ruggiero, Jr.,

Defendants-Appellants.

Nos. 175, 176 and 641, Dockets 93-1883, 94-1027 and 94-1214.

United States Court of Appeals, Second Circuit.

Argued Oct. 12, 1994.

Decided Jan. 5, 1995.

Paul G. Gardephe, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D.N.Y., Elizabeth Glazer, Asst. U.S. Atty., on the brief), for appellee.

Robert J. Krakow, New York City, for defendant-appellant Aulicino.

Steven M. Statsinger, New York City (The Legal Aid Soc., Federal Defender Div., on the brief), for defendant-appellant Cleary.

Gail E. Laser, New York City, for defendant-appellant Ruggiero.

Before: OAKES, KEARSE, and MINER, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Robert Aulicino, Jr., David Cleary, and Louis Ruggiero, Jr., appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following a jury trial before then-Judge Kenneth Conboy, 824 On appeal, one or more of the defendants contend principally that the evidence was insufficient to establish a RICO pattern; that the admission of coconspirator hearsay evidence was improper; and that the district court erred in using an anonymous jury. In addition, Aulicino contends that the evidence was insufficient to establish his guilt on the count on which he was convicted; and Ruggiero and Aulicino challenge their sentences. For the reasons below, we find no basis for reversal.

                F.Supp. 379.   Aulicino was convicted on one count of conspiracy to kidnap, in violation of 18 U.S.C. Sec. 1201(c) (1988), and was sentenced principally to 78 months' imprisonment, to be followed by a five-year term of supervised release.  Cleary and Ruggiero were convicted of participating in, and conspiring to participate in, the affairs of a racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1962(c) and (d) (1988).  In addition, Cleary was convicted on 23 other counts including kidnaping and conspiracy to kidnap, in violation of 18 U.S.C. Secs. 1201(a) and (c) (1988);  extortion, in violation of 18 U.S.C. Sec. 1951 (1988);  travel and commission of violent crimes in aid of racketeering, in violation of 18 U.S.C. Secs. 1952 and 1959 (1988);  and using and carrying firearms in connection with crimes of violence, in violation of 18 U.S.C. Sec. 924(c) (1988).  Ruggiero was convicted on 32 similar counts.  Cleary and Ruggiero were sentenced by Judges Conboy and Allen G. Schwartz, respectively, to life imprisonment, to be followed by five years of supervised release
                

I. BACKGROUND

The present prosecution centered on a kidnaping ring, most of whose targeted victims were highly successful narcotics dealers. The ring was divided into two "crews." One crew, led by Steven Palmer, identified potential victims; members of the other crew, whose leaders were Ruggiero and Cleary, then impersonated law enforcement officers, purported to arrest the victim, abducted him, and ordered him to raise a ransom.

The government's case was presented principally through the testimony of more than 40 witnesses; physical evidence, including law enforcement badges, firearms, and handcuffs, seized from Cleary's home or from Ruggiero, Cleary, Aulicino, and other coconspirators; and tape recordings of conversations between coconspirators and of ransom calls made by Ruggiero to one victim's family. Three of the witnesses, Derrick Augustine, Albert Van Dyke, and William Conklin, were members of the ring who had participated in the planning or execution of the kidnaping conduct. The evidence, taken in the light most favorable to the government, was as follows.

A. The Kidnaping Conspiracy

Palmer conceived the kidnaping scheme in 1990. The group he led included Augustine, Van Dyke, and codefendants James Brown, Keith Green, and Robert Cherry, all of whom were or had been active in drug trafficking in Harlem and the Bronx. Augustine, who had worked for many of the most successful Harlem drug traffickers, was recruited as a member of this crew to select appropriate kidnaping victims. Palmer told his crew that he knew men who would pose as law enforcement officers to abduct the victims and extract the ransoms. For this aspect of the scheme, Palmer called upon Ruggiero and Cleary. The crew led by Ruggiero and Cleary included codefendants Anthony Castelli, Richard Olivieri, and Michael Palazzolo. Palmer, Augustine, and other members of their crew met with Ruggiero and Cleary to discuss potential victims and likely ransoms. They compiled a list of 10 targets. Over the next several months, seven attempts were made, with varying degrees of success.

Augustine testified that in late 1990 he informed Palmer that a drug dealer named Otmar Delaney was doing an active drug business at a garage in Harlem. Palmer relayed the information to Ruggiero. Ruggiero, with an associate apparently identified in the record only as "Tommy," followed Delaney to his home in Yonkers, New York; Ruggiero, stating that he was a police officer, approached Delaney and placed him under "arrest." Ruggiero and "Tommy" put Delaney into the trunk of their car and took him to a motel in New Jersey.

In the motel room, Ruggiero handcuffed Delaney to a chair and tortured him with a staple gun until he eventually agreed to pay $750,000. Ruggiero at first used Delaney's cellular telephone to arrange payment of the ransom by Delaney's half-brother. When the batteries in that telephone went dead, however, Ruggiero left the room to use a public telephone. In Ruggiero's absence, Delaney told "Tommy" he needed water, and when "Tommy" went to the bathroom to get it, Delaney, still handcuffed to the chair, escaped from the room. He explained his predicament to a truck driver in the parking lot, and the two went to the motel manager's office to summon the police. While they were there, Ruggiero entered the lobby, and Delaney retreated, saying that Ruggiero was one of his kidnapers. With one hand still handcuffed to the chair, Delaney commandeered his benefactor's truck and drove off wildly, with the truck driver clinging to the side. The truck collided with two other vehicles and came to a stop. The police arrived; Ruggiero and "Tommy" had fled.

Members of the ring met to discuss the Delaney fiasco. Palazzolo assured the Palmer crew that "nothing like that would ever happen again." (Trial Transcript ("Tr.") 348.) The coconspirators were angry that Delaney had gotten away, and they made new attempts to extort money from him. Ruggiero and Cleary resumed surveillance of Delaney's garage. Members of both crews made telephone calls to threaten new kidnaping attempts unless Delaney paid them. At one point, Ruggiero drove into the garage "[t]o scare them up some, to let them know that they got away but they going [sic ] to get them again[,] and show his face." (Tr. 350.) These postkidnaping extortion attempts apparently ceased when Delaney, with a false promise of payment, lured members of the Palmer crew to a meeting that ended in a shootout.

The next kidnaping victim was Alvin Cassidy Goings, for whom Augustine had sold narcotics for several years. Shortly after Christmas 1990, Ruggiero, Cleary, Castelli, Olivieri, Palazzolo, and members of the Palmer crew met outside of a laundromat owned by Goings and followed him to other locations in the Bronx. Eventually, members of the Ruggiero/Cleary crew pulled Goings over to the side of the road, flashing law enforcement badges. Cleary and Palazzolo took Goings from his car, searched and handcuffed him, and placed him in the ring members' van. The ring extracted from Goings a sizeable ransom. Members of the Palmer crew were told by Palmer and the Ruggiero/Cleary crew that the payment was $400,000; Palmer's crew members believed, based on neighborhood rumors, that the payment might have been as high as $1 million. Cleary later confided to one witness (see Part II.A. below) that the ransom had been $1 million. Some of the ransom from this kidnaping was used to purchase and customize sedans to be used in further kidnapings.

On January 26, 1991, ring members kidnaped Roberto Mercedes, who previously had supplied narcotics to Augustine. Ruggiero, Olivieri, and Palazzolo conducted a close surveillance of Mercedes's sporting goods store, with Cleary and Augustine watching from a greater distance. After Mercedes left his store and went into a barber shop, Olivieri and Palazzolo entered the barber shop and purported to arrest Mercedes. They put Mercedes into their car, and, with Ruggiero, drove off. Ruggiero made numerous ransom calls to Mercedes's family. Despite Mercedes's being tortured, his brother refused to pay the demanded ransom. Some members of the ring began to suspect the ransom demands were futile because members of Mercedes's group preferred that he not be returned.

Because Olivieri and Palazzolo were concerned that Mercedes had seen their faces in the barber shop, Palmer ordered Brown to kill Mercedes; Brown gave Cherry a gun and turned the task over to him. Cherry transported Mercedes in the trunk of a car to a vacant lot in the Bronx, planning to shoot him there. When the trunk was opened, however, Mercedes came out kicking; although shot several times, he escaped and safely reached a police station. Notwithstanding the decision to kill Mercedes, Ruggiero continued to attempt to collect ransom money from Mercedes's brother; he was still trying some 10 minutes after Mercedes had The ring next attempted to kidnap a major Harlem narcotics dealer named Richard Simmons, for whom Augustine had worked. Palmer, Brown, Ruggiero, Cleary, Castelli, Olivieri, and Palazzolo trailed Simmons to a street corner in Harlem, where Ruggiero and Cleary attempted to "arrest" him. However, Simmons had learned of the attacks on Delaney and Goings and had heard a description of Ruggiero;...