U.S. v. Brady, s. 590

• Decision Date: 13 May 1994
• Docket Number: D,842,613,760,Nos. 590,762,s. 590
• Citation: 26 F.3d 282
• Parties: 40 Fed. R. Evid. Serv. 1102 UNITED STATES of America, Appellee, v. Richard Alan BRADY, Frank Pontillo, also known as Franky Steel, Robert Montano, Michael DeMatteo and John Pate, Defendants-Appellants. ockets 93-1215, 93-1220, 93-1251, 93-1252, 93-1618.
• Court: U.S. Court of Appeals — Second Circuit

Page 282

26 F.3d 282

40 Fed. R. Evid. Serv. 1102

UNITED STATES of America, Appellee, v. Richard Alan BRADY, Frank Pontillo, also known as Franky

Steel, Robert Montano, Michael DeMatteo and John

Pate, Defendants-Appellants.

Nos. 590, 613, 760, 762, 842, Dockets 93-1215, 93-1220,

93-1251, 93-1252, 93-1618.

United States Court of Appeals, Second Circuit.

Argued March 7, 1994.

Decided May 13, 1994.

Michael G. Considine, Asst. U.S. Atty., E.D. of N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D. of N.Y., David C. James and Valerie Caproni, Asst. U.S. Attys., E.D. of N.Y., of counsel), for appellee.

William M. Kunstler, Kunstler & Kuby, New York City, for defendant-appellant Richard Alan Brady.

Barbara L. Hartung, New York City, for defendant-appellant Frank Pontillo.

Christine E. Yaris, New York City (Joel Cohen, of counsel), for defendant-appellant Robert Montano.

Paul Greenfield, Crupain & Greenfield, New York City, for defendant-appellant Michael DeMatteo.

Before: CARDAMONE, MINER, Circuit Judges, and PARKER, Chief District Judge. ^*

PARKER, Chief District Judge:

The defendants-appellants appeal from judgments of conviction entered on March 23, 1993 in the United States District Court for the Eastern District of New York, following a three-week jury trial before the Honorable I. Leo Glasser. All defendants-appellants were convicted on a six-count superseding indictment charging them with participating in a conspiracy to commit murder for the purpose of increasing their positions within a criminal enterprise in violation of 18 U.S.C. Sec. 1959(a)(5) and with using and carrying firearms during the course of a crime of violence in violation of 18 U.S.C. Sec. 924(c). Defendants-appellants Brady and Pontillo were also charged with and convicted of participating in a conspiracy to collect unlawful debts in violation of 18 U.S.C. Sec. 1962, and defendant-appellant DeMatteo was convicted of unlawfully possessing a firearm as a felon in violation of 18 U.S.C. Sec. 922(g). On appeal, the defendants-appellants ¹ challenge their convictions claiming that the evidence was insufficient to support their convictions under the statutes charged, that certain evidentiary rulings were improper and unduly prejudicial, and that the trial court committed other miscellaneous errors. For the reasons stated below, we affirm the convictions.

I. BACKGROUND

The charges in this case arise from an internal war between opposing factions of the Colombo Crime Family of La Cosa Nostra. The Boss of the Colombo Crime Family, Carmine Persico, was imprisoned in 1986. Some time after his imprisonment, Persico appointed Victor Orena to administer the affairs of the Family and to assume the position of "acting boss" of the Family. By June of 1991, it became clear that Orena desired to change his status to "actual" rather than "acting" boss. A violent war erupted between those loyal to Orena, and those loyal to the imprisoned Persico. See United States v. Scopo, 19 F.3d 777, 779 (2d Cir.1994); United States v. Amato, 15 F.3d 230, 233 (2d Cir.1994); United States v. Orena, 986 F.2d 628, 629 (2d Cir.1993). Three weeks after the war began, a truce was declared as a result of a meeting with other families of La Cosa Nostra. The war began again, however, on November 18, 1991, when someone from the Orena faction shot at Greg Scarpa, an acting captain in the Persico faction.

The superseding indictment in this case alleged that this war was waged to establish control of the Family. Each faction formed armed "hit teams" to monitor the movements of the other faction and to attempt to kill its members. The appellants are members of the Persico faction whom (along with other Persico faction members) ² the government charged with conspiracy to murder Orena faction members for the purpose of maintaining or increasing their positions in the Colombo Family of La Cosa Nostra, in violation of 18 U.S.C. Sec. 1959(a)(5). The government also charged appellants under 18 U.S.C. Sec. 924(c)(1) with using and carrying firearms during and relation to a crime of violence--the murder conspiracy in this case. Appellant DeMatteo was also charged with possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. Sec. 922(g)(1). Appellants Brady and Pontillo were also charged with conspiracy to collect unlawful debts in violation of 18 U.S.C. Sec. 1962(d). At trial, the government's evidence included testimony by F.B.I. Special Agent George Gabriel, court-authorized tape recordings, and the testimony of three cooperating co-conspirators--Joseph Ambrosino, Carmine Imbriale, and Alan Quattrache.

Gabriel testified as an expert about the structure of organized crime, and specifically the structure of La Cosa Nostra in New York. La Cosa Nostra is made up of five families, each headed by a boss. The family administration includes the boss, an underboss who advises the boss and acts as interim boss if the boss is incapacitated temporarily, and a consiglieri, who advises lower ranking family members and mediates disputes between them. Under the administration are captains or capos who head crews of soldiers or made men. Associates are often affiliated with made members. They include, either individuals aspiring to become members of the family or individuals committing crimes under the auspices of the family who are ineligible for membership because they lack Italian lineage. Noncriminal association with family members is insufficient to make one an "associate."

The cooperating witnesses' testimony detailed various conspiracies and unsuccessful attempts by Persico loyalists to murder Orena faction supporters. Ambrosino, Imbriale and Quattrache testified from personal experience about the internal war waged within the Colombo Family and other illegal activities that occurred during the war. ³ Their testimony revealed the appellants' involvement in various murder plots, particularly the April 1992 attempt to murder Louis "Bo-Bo" Malpeso, a "made member" of the Orena faction. Although he missed, Pontillo actually shot at Malpeso. The cooperating witnesses also linked these appellants to a murder plot against William "Wild Bill" Cutolo. In all, the cooperating witnesses detailed attempts to locate and murder at least seventeen different individuals. ⁴ The named defendants in this case were involved in some, but not all, of the murder plots.

The trial also included testimony concerning actual murders that occurred during the course of the war, but were not committed by the named defendants. The cooperating witnesses testified about the murders of four Orena faction members--Nicholas Grancio, Larry Lampese, Vinny Fusaro and John Minerva, ⁵ as well as the murders of Persico faction members Hank Smurra, "Black Sam" Nastasi, and Steven Mancusi. Ambrosino, Quattrache and F.B.I. Special Agent Christopher Favo all testified that Greg Scarpa, a crew leader associated with the Persico faction, shot Joseph "Joe Waverly" Caccace, an Orena faction member, in the stomach in February of 1992. Ambrosino also testified about the 1989 murder of Anthony Coluccio to which he pled guilty.

To corroborate the testimony of the three co-conspirator witnesses, the government introduced other evidence including address books, hotel records, cellular phones with programmed memories, and bulletproof vests. The government also introduced surveillance testimony of law enforcement officers and evidence seized during searches, including guns and ammunition, as well as a frequency chart and a scanner programmed with police frequencies. The tape-recorded evidence included conversations that occurred in Ambrosino's car. The participants in these conversations, including appellants DeMatteo, Brady, and Pontillo, discussed the war, its casualties and various murder plots against Orena faction members.

After a three-week trial before Judge Glasser in the United States District Court for the Eastern District of New York, a jury convicted the defendants on all counts. Pontillo, Brady, and Montano received sentences of 156 months imprisonment, three years of supervised release, and a $50 assessment for each count of conviction. DeMatteo received a sentence of 157 months of imprisonment, three years of supervised release, and a $50 assessment for each count.

II. DISCUSSION

Appellants' challenges to their convictions include: (1) Montano and Brady's claim that evidence concerning murders not committed by any defendant was erroneously admitted and violated their due process rights; (2) Pontillo's claim that he was erroneously charged and convicted under 18 U.S.C. Sec. 1959(a)(5) (conspiracy to commit murder in order to maintain or increase his position within the Colombo Family); and (3) DeMatteo's claim that his conviction for being a felon in possession of a firearm violates the Ex Post Facto clause of the United States Constitution. Their contentions are without merit.

A. Admission of Evidence Concerning Murders

Montano and Brady both claim that the trial judge erred in admitting evidence concerning murders that occurred during the war, but that did not involve any of the defendants in the present case. ⁶ A trial court's decision regarding the admissibility of evidence will be overturned only upon a showing of abuse of discretion. United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). Therefore, Judge Glasser's decision to allow testimony concerning uncharged murders may not be set aside unless there is a showing that he acted irrationally or arbitrarily, or otherwise abused his discretion. See United States v. Coiro, 922 F.2d 1008, 1015 (2d Cir.), cert. denied, 501 U.S. 1217, 111 S.Ct. 2826, 115 L.Ed.2d 996 (1991) (citing United States v. DiTommaso, 817 F.2d 201, 217 (2d Cir.1987); United States v. Robinson, 560 F.2d 507, 514 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978))....