U.S. v. Lombardozzi

• Decision Date: 11 July 2007
• Docket Number: Docket No. 04-0380-cr.
• Citation: 491 F.3d 61
• Parties: UNITED STATES of America, Appellee, v. George LOMBARDOZZI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

491 F.3d 61

UNITED STATES of America, Appellee, v. George LOMBARDOZZI, Defendant-Appellant.

Docket No. 04-0380-cr.

United States Court of Appeals, Second Circuit.

Argued: November 30, 2004.

Decided: July 11, 2007.

Alan S. Futerfas, New York, NY, for Appellant.

Adam B. Siegel, 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: KEARSE, SACK, and HALL, Circuit Judges.

HALL, Circuit Judge:

Appellant George Lombardozzi was charged in four counts of a 19-count indictment. Count 7 charged him with conspiring to make an extortionate extension of credit in violation of 18 U.S.C. § 892; Count 8 charged him with the substantive offense of making an extortionate extension of credit in violation of 18 U.S.C. § 892; Count 9 charged him with conspiring to use extortionate means to collect on an extension of credit in violation of 18 U.S.C. § 894; and Count 10 charged him with using extortionate means to collect on an extension of credit in violation of 18 U.S.C. § 894. The four charges all stemmed from loans amounting to approximately $100,000 that Lombardozzi made in 1998 and 1999. A jury convicted Lombardozzi of three of the four charged offenses. They acquitted him of Count 10, the substantive offense of using extortionate means to collect on an extension of credit. His conviction was based in part on evidence presented in the form of a co-defendant's plea allocution. Following the trial, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), holding that in order for testimonial evidence such as a plea allocution to be admissible against a criminal defendant, the Sixth Amendment Confrontation Clause requires the unavailability of the witness and a prior opportunity for cross-examination of the witness by the defendant. Id. at 68, 124 S.Ct. 1354.

Lombardozzi raises a number of challenges to his conviction. He argues that the evidence presented at trial was insufficient to support his conviction; that the admission of his co-conspirator's plea allocution violated his Sixth Amendment Confrontation Clause rights; that the district court improperly admitted expert testimony and evidence of prior bad acts; and that the government presented perjured testimony to the grand jury.

For the reasons set forth below, the judgment of the district court (Leisure, J.) is affirmed.

Background

Lombardozzi, an alleged member of the Gambino La Cosa Nostra Crime Family, first met Henry Leung in 1994 at a restaurant that Leung managed in Manhattan. Leung was planning to open a new restaurant and needed a loan to be able to do so. One of Leung's frequent customers was Daniel Marino, whom Leung knew was engaged in racketeering and loansharking or, as Leung described him, a "wiseguy . . . . involved with the mob." Leung asked Marino for a $50,000 loan. In response, Marino introduced Leung to Lombardozzi who agreed to provide him with the loan. Leung was told that Lombardozzi was the guy who "takes care of the money." Frank Isoldi, another member of "Marino's group" and Lombardozzi's co-defendant, subsequently met Leung in the restaurant's wine cellar and gave him a brown paper bag containing $50,000 in cash. Thereafter, Leung made repayments to William Scotto, whom he described as the "muscle" for the group. The loan was eventually paid off and is not the subject of the current indictment.

In 1998, Leung sought an additional $20,000 loan from Marino's group. Because Marino was incarcerated, Lombardozzi and Isoldi agreed to loan Leung the money. Again, in the wine cellar of Leung's restaurant, Isoldi delivered to Leung a paper bag containing the money. The terms of the loan originally required repayment in the amount of $1,500 per month for two years, but Scotto subsequently informed Leung that "the old man"—whom Leung understood to mean Lombardozzi—had changed the terms and increased the payments to $2,500 per month for two years.

Shortly thereafter, Leung again borrowed money from Lombardozzi and Isoldi, this time for both himself and his friend Michael Wong. He originally asked for $25,000 ($20,000 for Wong and $5,000 for himself), but the principal amount of the loan eventually ballooned to $100,000. Leung was required to pay two points, or two percent, interest each week (104% per year), which amounted to $2,000 per week in interest in addition to the $100,000 principal.

Given the exorbitant payments required, Leung had to borrow money from other loansharks just to pay his debt to Lombardozzi in a timely manner. The interest on the additional loans was 250%—more than twice what he was paying Lombardozzi. In addition, Leung sold many of his personal possessions, moved to a less expensive residence, and borrowed money from friends. Eventually, Leung was able to renegotiate the terms of the loans with the other loansharks, although he never sought to do so with Lombardozzi.

The FBI approached Leung in early 2001 seeking information about his dealings with Lombardozzi, but Leung denied knowing him. Leung told Isoldi and Scotto about the FBI's inquiry, and they gave him the phone number of a lawyer. Despite the inquiry, the collections continued until Lombardozzi was arrested in May 2002.

In September 2002, Isoldi pleaded guilty to Count 9 of the indictment, under which he was charged as a co-defendant of Lombardozzi with conspiring to use extortionate means to collect on the extension of credit made to Leung. In connection with his Rule 11 guilty plea proceedings, in response to Judge Leisure's questioning, Isoldi allocuted to the relevant facts underlying that charge. Then, prior to the commencement of Lombardozzi's trial in April 2003, the district court granted a motion in limine allowing the government to introduce a redacted version of Isoldi's plea allocution as evidence against Lombardozzi. Judge Leisure instructed the jury that it was to consider the redacted plea allocution only as evidence of the existence of the conspiracy charged in Count 9 of the indictment and the nature of Isoldi's role in that conspiracy. Following a nine-day trial, in which the government's evidence against Lombardozzi consisted of, inter alia, Isoldi's plea allocution, intercepted telephone calls, Leung's testimony, and expert testimony, the jury convicted Lombardozzi on Counts 7, 8, and 9. It acquitted him of the substantive offense of using extortionate means to collect on an extension of credit (Count 10). The district court sentenced Lombardozzi principally to 41 months' imprisonment, the lowest sentence possible within the applicable Sentencing Guidelines range.

Discussion

1. The Government Presented Sufficient Evidence at Trial

A. Standard of Review

Lombardozzi challenges the sufficiency of the government's evidence with respect to two elements of the crimes for which he was convicted. The first is the victim Leung's understanding that the loans he received were extortionate, an essential element for conviction under § 892. The second is Lombardozzi's own state of mind with respect to the extortionate nature of the loans and their collection, an essential element for conviction under both §§ 892 and 894.

"As we have repeatedly observed, a defendant raising an appellate challenge to the sufficiency of the evidence supporting a conviction faces a `heavy burden,' because we must review the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor." United States v. Gaskin, 364 F.3d 438, 459 (2d Cir.2004). This deferential standard "is especially important when reviewing a conviction of conspiracy . . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case `where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel.'" United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir.1992) (quoting United States v. Provenzano, 615 F.2d 37, 45 (2d Cir.1980)). "Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt." Gaskin, 364 F.3d at 459-60.

B. Statutes Under Which Lombardozzi Was Convicted

Lombardozzi was convicted of conspiring to make and making extortionate extensions of credit in violation of 18 U.S.C. § 892 and conspiring to use extortionate means to collect on an extension of credit in violation of 18 U.S.C. § 894. Section 892(a) prohibits "mak[ing] any extortionate extension of credit, or conspir[ing] to do so." An "extortionate extension of credit" is defined as "any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person." 18 U.S.C. § 891(6) (emphasis added). The states of mind of the defendant and the debtor are, therefore, both essential elements of the crime of making extortionate extensions of credit under § 892.¹ See United States v. Allen, 127 F.3d 260, 266 (2d Cir.1997) ("Crucial to conviction under this statute is proof that both the creditor and the debtor understood when the loan was made that force could be used to collect the loan at issue."); United States v. Natale, 526 F.2d 1160, 1168 n. 10 (2d Cir.1975) (noting that unlike 18 U.S.C. § 894, "the state of mind of the victim [is] an essential element of [§ 892] to be proved by the Government"). Section 892(b) further provides that the government can establish prima facie evidence that a loan was extortionate if it can show: (1) the repayment of the loan would be unenforceable through civil judicial process against the debtor, (2) the loan had an annual interest rate in excess of 45 percent, and (3) "[a]t the time the...