U.S. v. Brennan, 1297

• Citation: 798 F.2d 581
• Decision Date: 11 August 1986
• Docket Number: No. 1297,D,1297
• Parties: 21 Fed. R. Evid. Serv. 358 UNITED STATES of America, Appellee, v. William C. BRENNAN, Appellant. ocket 86-1081.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 581

798 F.2d 581

21 Fed. R. Evid. Serv. 358

UNITED STATES of America, Appellee, v. William C. BRENNAN, Appellant.

No. 1297, Docket 86-1081.

United States Court of Appeals, Second Circuit.

Argued May 19, 1986.

Decided Aug. 11, 1986.

Paul B. Bergman, New York City, for appellant.

Kevin J. O'Brien, Asst. U.S. Atty. (Reena Raggi, U.S. Atty. E.D.N.Y., and Jane Simkin Smith, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before OAKES, MESKILL and MAHONEY, Circuit Judges.

OAKES, Circuit Judge:

William C. Brennan, a former justice of the Supreme Court of the State of New York in Queens County, appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, following a four-week jury trial. The jury found Brennan guilty on twenty-six counts involving the taking of bribes and the corruption of his judicial office with respect to four criminal cases in Queens. He was convicted on both a substantive and a conspiracy count under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 2, 1962(c), (d) (1982), fourteen counts of interstate travel in aid of racketeering, 18 U.S.C. Secs. 2, 1952(a) (1982), nine counts of fraud by wire communication, 18 U.S.C. Secs. 2, 1343 (1982), and one count of attempted extortion, 18 U.S.C. Secs. 2, 1951(a) (1982). Brennan was sentenced to concurrent terms of imprisonment of five years each on Counts One, Two, and Twenty-six and to probation for an additional five years on the remaining twenty-three counts, a condition of probation being that he have nothing to do, directly or indirectly, with the law, law enforcement, or the public trust. Brennan was also assessed $224,300 in fines, RICO forfeiture, and special assessments. 629 F.Supp. 283 (1986).

Brennan raises two issues on appeal. First, he contends that Judge Weinstein erred in permitting the Government to read into evidence on redirect examination grand jury testimony of Anthony Bruno, a government witness, to rehabilitate Bruno's testimony, since that testimony was not admissible as nonhearsay under Fed.R.Evid. 801(d)(1)(B). Second, Brennan contends that the court violated Fed.R.Evid. 404(b) by admitting evidence of "other crimes," to wit, that Brennan had corrupted three criminal cases in addition to the four cases charged in the indictment. For the reasons set forth, we reject these contentions and affirm the district court.

BACKGROUND

Bruno was the central witness in the Government's case. According to his testimony, he served as the middleman between the state court criminal defendants and then-Justice Brennan, and as such was the only person who could directly implicate Brennan in the bribery and corruption schemes. The Government's proof involved four cases described in the indictment--the Messina, Botta, Romano, and Polisi cases--and three other cases--Pastore, Cataldo, and Donnelly. Bruno was a long-time friend of Brennan's and also was acquainted with several convicted criminals and organized crime figures. The following factual background is based on the evidence adduced by the Government at trial.

In the early 1970's, Joseph Pastore asked Bruno to intercede with Brennan in connection with Pastore's pending felony assault case, which was before the justice. Bruno spoke to Brennan, who eventually responded that something could be done for $10,000. Pastore paid that sum to Bruno, who later turned it over to Brennan in Bruno's In 1974, Bruno discussed with Nicholas Botta, a convicted bookmaker and a loan shark, the possibility of early discharge from his five-year probation sentence imposed by Brennan. At some point Botta also mentioned that his partner, Lawrence Messina, had a gambling case before Brennan. Bruno then asked Brennan if he could help Botta and Messina; Brennan replied that he would look into the Messina case and told Bruno that Botta should visit Brennan in his chambers. Botta subsequently appeared before Brennan in chambers and explained why his family wanted him discharged from probation. Brennan discharged Botta in May 1975, two years before the completion of his sentence. The ostensible reason for the early discharge was that the supervising probation officer told Brennan that he already intended to release Botta from his requirement of reporting. The probation officer testified, however, that he had consistently refused Botta's requests for early discharge because he felt Botta was part of organized crime, and that he doubted that he had had the conversation with Brennan on which the latter claimed to rely. Bruno, not the probation department, notified Botta that he need no longer report to his probation officer. As to Messina, after several adjournments Brennan dismissed his case in October 1974 on the ground that the People had failed to provide him with a speedy trial.

house. Court records show that Pastore pled guilty to a misdemeanor before Justice Brennan in November 1973 and received a conditional discharge.

According to Bruno, Botta paid him $2,000 following his early discharge, which Bruno passed on to Brennan. Subsequently, Botta paid Bruno $12,000 for Messina's case. Bruno gave this sum to Brennan, who returned $5,000 to Bruno and kept $7,000 for himself. Botta testified that he received $15,000 from Messina after telling him why he needed the money. He stated that he paid Bruno before anything was done in their cases--first, $12,000 for Messina, and later $3,000 for his own case. Messina testified that he gave Botta $15,000 and that he knew what the money was for.

About this time Dominick Cataldo approached Bruno and offered $3,000 for Brennan in a first degree robbery case pending before the appellant. Bruno went to Brennan who, after looking into the matter, told Bruno he would accept the $3,000. Cataldo gave the money to Bruno, who gave it to Brennan. In February 1974 Brennan suppressed identification evidence linking Cataldo to the robbery, which led to dismissal of the indictment. After the dismissal, Brennan told Bruno, "[D]on't let them kid you that they didn't need me on this, they did."

After Cataldo's case was dismissed, John Donnelly approached Bruno concerning a weapons case in which he was to be tried before Brennan. In a proceeding before another judge, Donnelly had been convicted of a Class D felony and sentenced to an indeterminate prison sentence not to exceed five years. The Appellate Division, however, reversed the conviction and ordered a new trial and the case had been reassigned to Brennan. After speaking with Donnelly, Bruno contacted Brennan, who later said something could be done for $15,000. Donnelly gave $10,000 to Bruno, who delivered that sum to Brennan. Brennan told Bruno to collect the balance for himself, but Bruno was unable to do so. In November, 1974, Donnelly pled guilty to a Class A misdemeanor and Brennan, ignoring the district attorney's recommendation of a one-year prison term, sentenced Donnelly to time served and a $250 fine.

Brennan's corruption of John Romano's case was somewhat more complicated. After that case, involving attempted murder in the second degree, was assigned to Brennan in the spring of 1980, Dominick Cataldo approached Bruno on behalf of friends or relatives of Romano's and told Bruno that Brennan would be paid $15,000 if he would help Romano. Bruno informed Brennan of the $15,000 offer, and he replied that Bruno should tell the Romano party that "we will see what we can do."

                When Bruno next spoke to Cataldo, however, Cataldo said that the Romano group had gone elsewhere.  After a bench trial before him, Brennan told Bruno that he did not know what to do because the case could go either way.  He speculated that since he never received any money, Romano's attorney must have promised to fix the case and then pocketed the bribe.  He then asked Bruno how he would decide the case.  "[Y]ou're the judge," Bruno responded, but added, "[I]f you convicted him, you know, it will be a good lesson to that attorney."    Brennan then convicted Romano on two lesser-included felony offenses
                

Romano's father, "Footsie" Romano, contacted Bruno, this time through Nicholas Botta. Bruno talked to Brennan, who said that there was a loophole in the case and that something could be done. Bruno then discussed the case with the Romano group and insisted on the original $15,000 price. Romano's counsel then produced an affidavit that turned out to be perjurious from a federal prison inmate who claimed that he, not Romano, was responsible for bullet holes at the scene of the crime. This "newly discovered evidence" was brought before Brennan as the basis for a new trial in December 1980. "Footsie" Romano then gave Bruno $10,000, claiming it was all he could raise. Bruno passed the money on to Brennan, who returned $5,000 to Bruno. Brennan then granted Romano's motion to set aside the verdict based on newly discovered evidence. On retrial, before a different judge, Romano was acquitted.

The final act of bribery for which Brennan was charged involved Salvatore Polisi, a convicted bank robber and former associate of Donnelly and Cataldo. Polisi, charged in Queens with possession and sale of a controlled substance and facing a long sentence as a recidivist, decided to cooperate with the Government in an undercover capacity. Polisi contacted Bruno and flew down to Florida, where Bruno was then living, in late January, 1985, to solicit help in fixing the case, which was before Justice Rotker. Most of their conversations were tape-recorded. On January 31 Bruno told Polisi that Brennan was coming to Florida in a few days and that, before the justice left, Bruno would call him in New York to see what could be done in Polisi's case. Polisi wrote down on the back of a menu the charges and the names of the judge and lawyers in his case, so Bruno could relay this information to Brennan. Bruno called Brennan at his chambers the...