U.S. v. Gigante
| Decision Date | 24 October 1994 |
| Docket Number | Nos. 381,s. 381 |
| Citation | 39 F.3d 42 |
| Parties | UNITED STATES of America, Appellee, v. Vincent GIGANTE, also known as "Chin"; Vittorio Amuso, also known as Jesse, also known as Vic; Anthony Casso, also known as Gas, also known as Gaspipe; Peter Gotti; Dominic Canterino, also known as Baldy Dom; Peter Chiodo; Joseph Zito; Caesar Gurino; Vincent Ricciardo, also known as Three Fingers; Joseph Marion, also known as Joe Cakes; John Morrissey, also known as Sonny Blue, also known as Sonny; Thomas McGowan; Victor Sobolewski; Anthony B. Laino; Gerald Constabile; Andre Campanella; Michael Realmuto; George Zappola; Richard Pagliarulo; Michael DeSantis; Michael Spinelli; Thomas Carew; and Corrado Marino, Defendants, Venero Mangano, also known as Benny Eggs; Benedetto Aloi, also known as Benny; and Dennis DeLucia, Defendants-Appellants. to 383, Dockets 93-1260, 93-1277 and 93-1278. |
| Court | U.S. Court of Appeals — Second Circuit |
Gregory J. O'Connell, Asst. U.S. Atty. (Zachary Carter, U.S. Atty., and David C. James, Charles E. Rose, and Kevin P. McGrath, Asst. U.S. Attys., E.D.N.Y., of counsel), for appellee.
Judd Burstein, New York City (Marc Fernich, New York City, of counsel), for defendant-appellant Aloi.
Frederick P. Hafetz, Goldman & Hafetz, New York City (Susan R. Necheles and Adam Thurschwell, Goldman & Hafetz, New York City, of counsel), for defendant-appellant Mangano.
Alan Futerfas, Shargel & Futerfas, New York City, for defendant-appellant DeLucia.
Before: VAN GRAAFEILAND and WINTER, Circuit Judges, and POLLACK, District Judge. *
Venero Mangano, Benedetto Aloi, and Dennis DeLucia appeal from their convictions by a jury before Judge Dearie for extortion and conspiracy to commit extortion in violation of 18 U.S.C. Secs. 2 and 1951. The principal issue on this appeal arises from the facts that Mangano and Aloi had, after conviction, a base offense level that would have resulted in sentences of 27-33 months under the Guidelines, whereas, after adjustments in the levels and upward departures, many of which were based on uncharged or acquitted conduct, Mangano was sentenced to 188 months, and Aloi to 200. In calculating Mangano's and Aloi's sentences, Judge Dearie granted the government's motion for an upward departure, pursuant to U.S.S.G. Sec. 5K2.0, from the sentencing range established in the United States Sentencing Guidelines on the basis of conduct for which Mangano and Aloi were not convicted. Mangano and Aloi appeal the upward departure as unreasonable, as based on other erroneous grounds, and as based on the wrong standard of proof. They further argue that the indictment underlying their convictions was legally improper and challenge their sentences for an improper calculation of the "amount demanded" by the extortion conspiracy. DeLucia, who was sentenced to 46 months, joins in his co-defendants' appeals of their convictions and presses his own argument that the evidence against him was legally insufficient and that his sentence was based on an erroneous calculation of the "amount demanded." We reject all these arguments and affirm.
We view the evidence in the light most favorable to the government. Mangano and Aloi were senior members of the administration of the Genovese and Colombo crime organizations, respectively. Beginning in 1978, they participated in a lucrative conspiracy to control the window replacement market in the New York metropolitan area, primarily through controlling the bidding on contracts with the New York City Housing Authority ("NYCHA"). DeLucia, a senior or "made" member of the Colombo organization, joined the conspiracy in 1988. Through threats and acts of violence against window manufacturers, and through influence over a corrupt labor union, Local 580 of the Architectural and Ornamental Ironworkers Union ("Local 580"), responsible for supplying workers on window replacement contracts, Mangano, Aloi, DeLucia, and their associates managed to rig many of the bids on those contracts, thus inflating the costs to the NYCHA. They then collected payments from the manufacturers.
Mangano, Aloi, and DeLucia were convicted for the extortion of, and conspiring to extort, the window manufacturer Graham Architectural Products, Inc. ("Graham"). A manufacturer and supplier of windows to installers controlled by the conspirators, Graham attempted to bid for window installation contracts itself in 1982. Under direct threats from the conspirators and from Local 580 and other unions, Graham temporarily ceased to bid. In March 1985, Graham attempted yet again to submit competitive bids but was once more thwarted by the conspirators' threats and pressure on installers. Further attempts by Graham to escape the conspirators' control led it to seek new installers, only to discover that they too were controlled by organized crime families, including the Gambino organization.
The conspirators frequently quarreled over which crime family would garner the profits from control of Graham. Mangano stated at a 1988 meeting that, "I feel Graham was mine from the beginning." Nonetheless, all the conspirators agreed to exert control over Graham. For instance, at a meeting in June 1989, attended by all the major conspirators, the conspirators and Savino discussed their policy of thwarting Graham's efforts to bid independently.
The conspirators were clearly aware of the illegality of their actions. Both DeLucia and Aloi counseled their co-conspirators not to mention names, especially over the telephone. In discussing another co-conspirator, Mangano instructed Peter Savino, a government informant, to "[m]ake sure he ain't wired." Mangano warned the others to establish ostensibly legal rationalizations for their actions, Aloi voiced his fear of apprehension, lamenting, "I don't want to go to jail for a hundred years." Finally, upon discovering that many of their incriminating conversations had been secretly recorded by Savino, one conspirator threatened Savino and told him, "You were seen with federal agents, rat mother-fucker."
Although a latecomer to the conspiracy, DeLucia was instrumental in its execution. DeLucia, an assistant to Aloi, appeared at almost every meeting attended by Aloi and demonstrated his knowledge of and complicity in the scheme. DeLucia thus revealed a grasp of the details of the conspiracy, including the arrangements for payments from the contractors and the planning of crucial meetings among the conspirators. DeLucia set the stage for the key discussion of the suppression of competitive bids through union intervention at the "heavyweights" meeting of February 24, 1989, when he stated, "The reason for this meeting is this guy's gotta throw in ... Sonny's gotta make this guy throw in back his bid so you wind up with it...."
The conspirators were indicted on sixty-nine counts of RICO violations and the underlying extortion, mail fraud, and labor payoff crimes. At trial, Savino, a former associate of the Genovese crime organization, testified extensively about the conspiracy and verified secretly recorded conversations amongst the conspirators that had taken place over eighteen months in 1988 and 1989. The government also introduced the testimony of Russell Trout, the former president of Graham, who recounted the pressure from the conspirators to cooperate with the conspiracy. Peter Chiodo, a former captain in the Luchese crime family, testified regarding the bidding conspiracy, the extortionate exclusion of competitors, and the collection of pay-offs from window manufacturers. Mangano, Aloi, DeLucia, and the crime families they represented, figured prominently in all of this testimony.
Mangano, Aloi, and DeLucia were convicted on Counts 3 (conspiracy to commit Hobbs Act extortion) and 59 (Hobbs Act extortion) of the 69-count indictment. The Hobbs Act defines "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear, or under color of official right." 18 U.S.C. Sec. 1951(b)(2). Count 59 charged the defendants with acts of extortion, referenced in Racketeering Act 84, in obtaining from Graham with its consent and by the wrongful use of fear its property. This property consisted of its right to bid competitively and contract freely for window installation contracts. Racketeering Act 84 set out two acts of extortionate conduct:
a. The causing of window installation companies to refuse to contract for the installation of Graham windows in NYCHA projects; and
b. The causing of Graham, its owners, officers and employees to fear economic injury by threatening to prevent and preventing the installation of Graham windows in NYCHA projects.
At a Fatico sentencing hearing, see United States v. Fatico, 579 F.2d 707 (2d Cir.1978), the government presented evidence that Mangano and Aloi conspired to murder potential witnesses following the revelation in 1989 that Savino had secretly taped the conspirators' conversations for eighteen months. Peter Chiodo, a captain in the Luchese crime family, had testified at trial that he had murdered John "Sonny" Morrissey on orders from the conspirators. After his guilty plea, Chiodo himself became the victim of the murder conspiracy and was shot twelve times in an unsuccessful attempt on his life. At the Fatico hearing, the government also presented several other witnesses who testified that further murders had been planned but that those plans were suspended to increase the defendants' chances for release on bail.
At sentencing, the parties agreed that the applicable base offense level pursuant to U.S.S.G. Sec. 2B3.2 was eighteen. The district court then increased Mangano's and Aloi's sentences seven levels,...
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