U.S. v. Daidone

• Decision Date: 15 December 2006
• Docket Number: Docket No. 04-3784-cr.
• Citation: 471 F.3d 371
• Parties: UNITED STATES of America, Appellee, v. Louis DAIDONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 371

471 F.3d 371

UNITED STATES of America, Appellee, v. Louis DAIDONE, Defendant-Appellant.

Docket No. 04-3784-cr.

United States Court of Appeals, Second Circuit.

Argued: April 27, 2005.

Decided: December 15, 2006.

John W. Mitchell, New York, NY, for Appellant.

Karl Metzner, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Diane Gujarati, Assistant United States Attorney, on the brief), New York, NY, for Appellee.

Before NEWMAN, McLAUGHLIN, HALL, Circuit Judges.

PER CURIAM.

This case requires us to confront again the "relatedness" requirement for establishing a pattern of racketeering activity for purposes of obtaining a conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. Appellant Louis Daidone was charged with racketeering, racketeering conspiracy, witness tampering by murder, conspiracy to make extortionate loans, and conspiracy to collect extensions of credit by extortionate means. A jury convicted Daidone of all five charged offenses, and this appeal followed. For the reasons set forth below, the judgment of the district court is affirmed.

I. Background

Daidone, a member of the Luchese¹ organized crime family, was charged in a five-count indictment in the United States District Court for the Southern District of New York. Count One charged him with participating in a racketeering enterprise in violation of 18 U.S.C. § 1962(c); Count Two charged him with racketeering conspiracy in violation of 18 U.S.C. § 1962(d); Count Three charged him with witness tampering by murder in violation of 18 U.S.C. § 1512(a)(1); Count Four charged him with conspiracy to make extortionate loans in violation of 18 U.S.C. § 892; and Count Five charged him with conspiracy to collect loans by extortionate means in violation of 18 U.S.C. § 894. A jury convicted Daidone of all five counts, and the district court sentenced him principally to imprisonment for three life terms and two twenty-year terms, all to run concurrently.

The facts underlying Daidone's conviction, which we view in the light most favorable to the government, see United States v. Eltayib, 88 F.3d 157, 171 (2d Cir.1996), are straightforward. As a member of the Luchese Organized Crime Family, Daidone orchestrated the murders of Luchese associates Thomas "Red" Gilmore and Bruno Facciolo, and was involved in loansharking operations. The predicate acts for the RICO convictions, which 18 U.S.C. §§ 1961(5) & 1962(c) require the government to prove, were the Gilmore murder, the Facciolo murder, and the loansharking, charged as Racketeering Acts One, Two, and Three, respectively. The witness tampering conviction is based on the Facciolo murder, and the convictions on Counts Four and Five arise from Daidone's loansharking operations.

A. The Murder of Thomas Gilmore

Thomas Gilmore ran a chop shop and operated a limousine service. After various Luchese members became suspicious of Gilmore in late 1988, then-boss Vic Amuso instructed Daidone to kill him. After one failed attempt, in February 1989 Daidone and two associates hid at Gilmore's house to await his return. Under Daidone's supervision, the two associates ambushed Gilmore as he returned to his apartment and shot him three times in the head. Gilmore died within minutes.

B. The Murder of Bruno Facciolo

Later in 1989, Luchese leaders learned that another family associate, Bruno Facciolo, was cooperating with authorities regarding an investigation in California into a murder orchestrated by the Luchese family. Daidone, on the orders of his superiors, designed a ruse to trap and kill Facciolo. Specifically, Daidone pretended he needed a formal introduction to a mafia member from another crime family, and he asked Facciolo to make this introduction for him. Unaware of Daidone's true intent, Facciolo drove him to a local garage. Once there, Daidone restrained Facciolo while Lasorino, a Luchese associate who had been waiting at the garage, stabbed him repeatedly in the chest. Lasorino then shot Facciolo in the head and chest, killing him. Finally, Daidone placed a dead canary in Facciolo's mouth in an effort to warn others not to "sing."

C. The Loansharking

The government's evidence showed that as early as 1988 Daidone was extensively involved in making and collecting various extortionate loans. In June 1996, even though Daidone was in prison, he had around $80,000 in loans owed to him by others. The government established at trial that between 1997 and 1999 Daidone was involved in a number of extortionate loans, which varied in amount from $25,000 to a proposed two-million dollar deal.

II. Daidone's Arguments on Appeal

Daidone raises several issues on appeal, some of which are addressed below. First, Daidone contends that the convictions on Count Three, charging him with witness tampering by murder, should be reversed because the prosecution was barred by the statute of limitations, and because the jury was not charged on the element of premeditation. Next, Daidone argues the Southern District of New York was an improper venue in which to bring Count Three. Third, Daidone challenges the admission into evidence of uncharged racketeering acts as highly prejudicial and unnecessary to the government's case. Fourth, Daidone alleges the court's use of Sentencing Guidelines to calculate his imposed sentence violated his constitutional rights, and, fifth, he asserts that if the challenged convictions as to RICO are overturned, the "spillover prejudice" that results from the evidence on those counts requires the reversal of the loansharking count.

The crux of Daidone's appeal is his assertion that the government failed to prove that the predicate acts alleged in the racketeering counts formed a unitary "pattern of racketeering activity" indispensable to a prosecution arising under either 18 U.S.C. § 1962(c) or (d). As alleged in the indictment, Racketeering Act One was the murder and the conspiracy to murder Thomas Gilmore; Racketeering Act Two was the murder and conspiracy to murder Bruno Facciolo; and Racketeering Act Three was the loansharking business. Daidone argues that these three acts "were committed years apart, by different people and for entirely different reasons," and could thus not establish a pattern of racketeering activity as required by 18 U.S.C. § 1962(c). He contends that instead of independently establishing the requirements for proving a pattern of racketeering activity — which requires proving both horizontal and vertical relatedness — the government improperly used what was essentially the same evidence to prove both avenues of relatedness.

Daidone asserts that the test for horizontal relatedness derives from the test set forth by the Supreme Court in H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), to determine whether the charged acts of racketeering activity constitute a pattern. He argues that in order for there to be horizontal relatedness, the predicate crimes must have "the same or similar purposes, results, participants, victims, or methods of commission," or the crimes must be otherwise "interrelated by distinguishing characteristics and ... not isolated events," see id. at 240, 109 S.Ct. 2893 (internal quotation omitted) (discussing concepts by which criminal conduct can be found to form a pattern), elements he asserts are missing from the predicate crimes here. Thus, argues Daidone, allowing the government to establish horizontal and vertical relatedness with essentially the same evidence — showing that each act is related to the main criminal enterprise — without proving the H.J. Inc. factors, "dilute[s] the nature and quantum of proof necessary to convict" and is "at odds with the Supreme Court's holding as to what must be shown to justify the inclusion of given predicate acts in a single pattern of racketeering activity."

III. Discussion

A. Pattern of Racketeering Activity

Section 1962(c) prohibits "any person employed by or associated with any enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." As stated, Daidone generally contests the government's ability to prove this pattern of racketeering activity through the alleged predicate acts.

Under the RICO statute, a "`pattern of racketeering activity' requires at least two acts of racketeering activity, one of which occurred after the effective date of this [statute] and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961(5). Since the enactment of RICO, this Court has afforded the term "pattern of racketeering activity" a "generous reading," United States v. Indelicato, 865 F.2d 1370, 1373 (2d Cir.1989) (en banc), and has "interpreted [it] to mean `multiple racketeering predicates — which can be part of a single `scheme' — that are related and that amount to, or threaten the likelihood of, continued criminal activity,'" United States v. Reifler, 446 F.3d 65, 91 (2d Cir.2006) (noting that evidence of a defendant's ties to organized crime is admissible to prove a RICO offense) (quoting United States v. Coiro, 922 F.2d 1008, 1016 (2d Cir.1991)). The Supreme Court has held that "to prove a pattern of racketeering activity a ... prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893. Because Daidone does not challenge continuity, only relatedness is at issue in this case.

According to the Supreme Court, criminal conduct forms a pattern of racketeering activity under RICO when it "embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of...