U.S. v. DiSalvo

• Decision Date: 29 September 1994
• Docket Number: Nos. 93-1442,93-1463,No. 93-1463,No. 93-1442,93-1442,s. 93-1442
• Parties: UNITED STATES of America v. Anthony DiSALVO, Appellant inUNITED STATES of America v. Robert F. SIMONE, Appellant in
• Court: U.S. Court of Appeals — Third Circuit

Page 1204

34 F.3d 1204

UNITED STATES of America v. Anthony DiSALVO, Appellant in No. 93-1442.

UNITED STATES of America v. Robert F. SIMONE, Appellant in No. 93-1463.

Nos. 93-1442, 93-1463.

United States Court of Appeals, Third Circuit.

Argued March 7, 1994.

Decided Aug. 31, 1994.

Sur Petitions for Rehearing Sept. 29, 1994.

Thomas Colas Carroll (argued), Philadelphia, PA, for appellant, Anthony DiSalvo.

Robert F. Simone, pro se.

William S. Lynch, U.S. Dept. of Justice, Frank J. Marine (argued), U.S. Dept. of Justice, Organized Crime & Racketeering Section, Washington, DC, Michael J. Rotko, U.S.

Atty., E.D.Pa., Philadelphia, PA, Lynn Panagakos, U.S. Dept. of Justice, Organized Crime & Racketeering Section, Washington, DC, for appellee.

Before: MANSMANN, LEWIS and SEITZ, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this consolidated appeal of Anthony DiSalvo and Robert F. Simone, we examine the appellants' affiliation with the hierarchy of the Philadelphia La Cosa Nostra (LCN) to determine whether their proven participation in LCN activities is sufficient to sustain their convictions on various offenses.

Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, both DiSalvo and Simone were convicted of conspiring to collect a debt by extortionate means and of the substantive offense of extortionate collection of an extension of credit. Simone was also convicted of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"), a substantive RICO charge and conspiring to affect interstate commerce through extortion.

We are asked to address a number of issues spanning the range of criminal jurisprudence--statute of limitations, sealing of the indictment, pre-trial publicity, the type, weight, reliability, and probative worth of evidence, after-discovered evidence, jury instructions, the effect of extra-record information upon the jury and the court's post-trial voir dire of the jurors. While we discuss all of the issues, of most concern is the question of the sufficiency of the evidence of implied threats which supports the convictions of using extortionate means to collect a debt.

In order to review these allegations of error, we must first set forth the facts proven at trial in their appropriate context. We must view the facts in the light most favorable to the government since its view prevailed at trial.

I. Facts

A. Background

Members of the Scarfo family, and its nefarious affairs, are not strangers to our court. ¹ This RICO enterprise was highly structured and governed by a distinct chain of command. At the top rung of the family ladder, the boss, Nicodemo Scarfo, oversaw the family activities. Directly below were the assistant managers--the underboss (second-ranking member) and consigliere (advisor). On the next level were the capos (captains), each of whom commanded a cadre of criminal soldiers. The top leadership, capos and soldiers were "made men", that is, formally initiated members of the LCN. The "made" members were assisted by associates--uninitiated colleagues answerable to their sponsoring LCN member. Associates were afforded a degree of protection from the sponsor they were "with," conditioned upon obtaining their superior's approval before conducting criminal ventures, giving an accounting and sharing resulting profits. Income was generated from illegal businesses such as gambling, loansharking, extortion and collection of a street tax (the "elbow") from non-LCN competitor criminals.

If family rules were violated, orders of the enterprise hierarchy disregarded or enterprise operations otherwise compromised, serious revenge was exacted. In fact, during the relevant time period, the Scarfo family committed numerous murders and attempted murders, numbering "made men," associates and outsiders as victims.

B. Simone and the LCN

Simone became acquainted with two members in the Scarfo organization, Nicholas Caramandi and Thomas DelGiorno, in the 1970's. Simone met Philip Leonetti in 1978 when Simone was retained to represent Leonetti Leonetti testified that shortly after Scarfo's ascension to leadership, Scarfo asked Simone to become a "made member" of the family. Although Simone declined, Scarfo told Simone that various bookmakers and loansharks to whom Simone was indebted would be instructed to forgive Simone's outstanding debts.

on murder charges. Leonetti, Scarfo's nephew, was promoted to the underboss position in the Scarfo family in 1986. It was the testimony of Leonetti, now turned government witness, which provided the substance of the evidence against Simone and DiSalvo on the charges before us here.

Leonetti chronicled other instances indicating Simone's closeness to the family. First, Simone never charged Leonetti and Scarfo fees for the extensive legal services he rendered for the family's inevitable run-ins with law enforcement authorities. Then, in May 1981, after Greek drug dealer Steve Bouras was murdered on Scarfo's orders, another dealer who was "with" Simone, George Botsaris, asked Simone to find out if Scarfo planned to kill him. When Simone relayed Botsaris' fears of being killed, Scarfo assured him that, as long as Botsaris took care of Simone, his life was not in jeopardy.

In 1987, while Scarfo and Leonetti were both in prison, Simone became concerned that his own life was in peril. Simone had represented George Martorano on drug charges. George pled guilty and received a sentence of life without parole. George's father, LCN member Raymond "Long John" Martorano, was displeased with Simone's representation of his son and Simone feared that Long John Martorano would seek retribution upon his release from prison. When Simone communicated his concerns to Scarfo, Scarfo allayed these fears by informing Simone that he had arranged to have Martorano killed if he was released.

Finally, recorded conversations between Simone and FBI cooperative, David Kurzband, an Atlantic City casino junket operator, established Simone's familiarity with both the members and the functioning of the Scarfo operation.

C. Simone and DiSalvo

Leonetti testified that he had known DiSalvo since the 1970's and that they socialized on occasion. Leonetti described DiSalvo as a loanshark who was "with" the Scarfo family and, specifically, "with" Simone.

When Scarfo became the family boss, Simone asked Scarfo not to extract money from DiSalvo's loanshark business, i.e., to exempt him from payment of the "elbow." This arrangement continued for a while, but Simone eventually told Scarfo and Leonetti that DiSalvo should begin to share the proceeds from his business; Scarfo told Simone to instruct DiSalvo that a portion of the monies collected by DiSalvo would be split equally among Scarfo, Simone and Chuckie Merlino, Leonetti's underboss predecessor.

D. The Pelullo Loan Transaction

Leonard, Arthur and Peter Pelullo are three brothers with ties to the Scarfo family. Arthur and Peter Pelullo were "with" the Scarfo family, thus, any dealings by or with them had to be cleared with Leonetti or Scarfo. At a December 1985 meeting among DiSalvo, Simone and Leonetti, DiSalvo informed Leonetti that he was having trouble contacting Leonard Pelullo regarding a $200,000 debt owed by Leonard to DiSalvo. DiSalvo offered Leonetti one-half of the proceeds collected if Leonetti would intercede and ask Pelullo to pay the debt.

Leonetti and Scarfo met with Leonard Pelullo at Scarfo's Florida residence. Leonetti outlined the meeting's agenda:

[M]y uncle [Scarfo] was telling [Leonard] that Tony DiSalvo reached out for us and he needed help collecting this money, that he had to pay this $200,000. And Leonard Pelullo was telling him that he had a lot problems right now, ... he was going to be indicted for robbing $14 million from banks down there in Florida and he was having a little problem getting the money. But my uncle told him it wasn't his problem, that he would have to come up with this money. So Leonard Pelullo told him, "Well, Nick, give me a couple of days and I'll get back to you."

App. at 717a-18a. Shortly thereafter, Leonard Pelullo, Leonetti and Scarfo met and agreed that the debt would be dissolved if Pelullo paid $120,000 to DiSalvo. When by February 1986, Leonard Pelullo had not paid the $120,000, Leonetti met with Arthur Pelullo and explained his brother's situation. Arthur offered to pay Leonard's debt by turning over one of his restaurants but Scarfo declined this counteroffer.

Leonetti then approached Peter Pelullo about his brother's debt. Peter personally guaranteed payment of the debt and in February or March of 1986, DiSalvo was paid $90,000. Because DiSalvo was to receive 50% of the $120,000, Scarfo directed DiSalvo to keep $60,000 as total satisfaction of the debt. The remaining $30,000 was given to Leonetti who turned over $10,000 to Simone.

Pelullo was not asked for the $30,000 balance until January, 1987 when Scarfo was arrested and needed to fund his legal defense. Leonetti approached Peter Pelullo for payment and it was agreed that Pelullo would pay $10,000 per month for the next three months. Pelullo did pay $10,000 in each of the next two months. When in April, 1987, Leonetti was arrested, Pelullo paid the third installment to Leonetti's cousin. Simone received his one-third split from each of the final payments.

E. The Rouse Extortion

After Rouse and Associates, a construction and real estate development entity, was chosen in May 1985 to construct a multi-million dollar project in the Penn's Landing area of Philadelphia, Leland Beloff, the City Councilman representing the Penn's Landing district, and his legislative aide, Robert Rego, sensed an opportunity ripe for extortion. Before construction could begin, two bills to facilitate funding for the program had to pass through the Philadelphia City Council....