U.S.A. v. Marino

• Citation: 277 F.3d 11
• Decision Date: 01 October 2001
• Docket Number: 00-1813,Nos. 00-1739,s. 00-1739
• Parties: (1st Cir. 2002) UNITED STATES OF AMERICA, Appellee, v. VINCENT MICHAEL MARINO, A/K/A GIGI PORTALLA, AND JOHN J. PATTI III, Defendants, Appellants. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 11

277 F.3d 11 (1st Cir. 2002)

UNITED STATES OF AMERICA, Appellee, v. VINCENT MICHAEL MARINO, A/K/A GIGI PORTALLA, AND JOHN J. PATTI III, Defendants, Appellants.

Nos. 00-1739, 00-1813

United States Court of Appeals For the First Circuit

Heard Oct. 1, 2001

Decided January 14, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Nathaniel M. Gorton, U.S. District Judge

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Robert L. Sheketoff with whom Sheketoff & Homan was on brief for appellant Vincent Marino.

Terrance J. McCarthy for appellant John J. Patti III.

Cynthia A. Young, Assistant United States Attorney, with whom James B. Farmer, United States Attorney, was on brief for appellee.

Before Boudin, Chief Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

LYNCH, Circuit Judge.

Vincent Marino, a/k/a Gigi Portalla, and John Patti were members of La Cosa Nostra. They appeal their convictions under the Racketeer Influenced and Corrupt Organizations statute (RICO), 18 U.S.C. §§ 1961-1968 (1994 & Supp. V 1999) and the Violent Crimes in Aid of Racketeering statute (VICAR), 18 U.S.C. § 1959 (1994).

RICO has proven to be a powerful weapon in the government's efforts against organized crime. And so it was here. The government's theory described internecine warfare within the Patriarca Family of La Cosa Nostra, a group engaged in criminal activity, including drug distribution. The activities of the Patriarca Family have been chronicled in this court for more than a decade, including in United States v. Angiulo, 847 F.2d 956 (1st Cir. 1988). See also United States v. Barone, 114 F.3d 1284 (1st Cir. 1997); United States v. Angiulo, 57 F.3d 38 (1st Cir. 1995); United States v. Carrozza, 4 F.3d 70 (1st Cir. 1993); United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991); United States v. Zannino, 895 F.2d 1 (1st Cir. 1990).

The relevant events span the years from 1989 through 1994. The Patriarca Family fractured into rival factions, the Salemme faction and the Carrozza faction, each seeking to seize control. Each took steps to eliminate members of the other, by murder or, at least, injury. Marino and Patti, the defendants here, were members of the Carrozza faction. They have each been sentenced to imprisonment for more than 30 years. These appeals raise a multitude of issues, including challenges to jurors, evidentiary rulings, jury instructions, and sentencing issues.

I.

The first trial of Marino and Patti ended in acquittals on several counts,¹ and their mistrial on the remaining counts. Marino and Patti argued those acquittals foreclosed further prosecution. This court rejected those contentions. United States v. Marino, 200 F.3d 6 (1st Cir. 1999).

The second trial concluded with Marino and Patti being convicted of participating in a pattern of racketeering activity in violation of RICO, 18 U.S.C. § 1962(c) (substantive RICO violation) (Count One); conspiring to participate in a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d) (RICO conspiracy) (Count Two); and conspiring to murder thirteen named individuals in aid of racketeering in violation of 18 U.S.C. § 1959 (VICAR) (Count Three). Patti was also convicted of conspiring to distribute narcotics in violation of 21 U.S.C. § 846. Marino was sentenced to a total of 420 months in prison, while Patti was sentenced to 360 months in prison.

The substantive RICO and RICO conspiracy counts required the defendants to be found guilty of at least two racketeering acts or predicate acts. 18 U.S.C § 1961(5). The jury found Marino and Patti had committed the predicate acts of conspiracy (under state law) to murder thirteen individuals, and of conspiracy (under federal law) to sell illegal drugs in violation of 21 U.S.C. § 846.

II.

Taking the evidence in favor of the verdict, the jury could have found the following facts.²

Marino and Patti were members of the Patriarca Family of La Cosa Nostra, an organization that controlled much of the crime in the greater Boston area. In 1989 a conflict developed when a faction led by Robert Carrozza, Joseph Russo, and Vincent Ferrarra began to challenge Raymond Patriarca's leadership of the organization. In 1989 William Grasso, one of the leaders of the Patriarca Family, was killed. An attempt was also made to murder Frank Salemme, who was at that time in the Patriarca Family leadership. Marino was involved in the murder attempt and had reason to fear Salemme would return the favor.

In 1991 Salemme became the boss of the Partriarca Family. The conflict escalated. On one side was the leadership of the Patriarca Family, and on the other side was the rival Carrozza faction, to which Marino and Patti belonged. Both factions wanted to collect the extortion payments to the Patriarca Family and control its other business.

Anthony Ciampi, a key Carrozza faction member, owned a club on Bennington Street in East Boston, the site of gambling and illegal card games. Carrozza faction members frequented the club. Mark Spisak, a Carrozza faction member, worked there. Marino was seen at least once at the club by John Arciero, a government witness.

In the Fall of 1993 there was a confrontation at the Breeds Hill Club in East Boston when Stephen Rossetti, a Salmme faction member, with Joseph Souza, Richard Devlin, and Richard Gillis present, shook down Ciampi. Months later, Ciampi would kill Devlin. Rossetti would die a natural death.

In early 1994 Marino and Patti conspired with others to help Carrozza challenge Salemme's leadership of the Family. As part of the conspiracy, Ciampi, accompanied by Spisak and Nick Patrizzi, murdered Devlin on March 31, 1994. Devlin had been attempting to extort money from Ciampi's gaming operations. Devlin's killers also attempted to murder Gillis. Both victims belonged to the Salemme faction. The murder of Devlin and the attempt to murder Gillis took place after Ciampi saw Devlin, Gillis, and Stephen Rossetti in the vicinity of his club, "rubberneck[ing]" him earlier in the day. Ciampi believed that the three men were looking to kill him.

After Devlin's murder the Carrozza faction met more frequently at Ciampi's club, which became the center of operations. The group also stored weapons and surveillance equipment (such as night vision binoculars) there. Marino and Patti participated in a number of these meetings. The group talked about collecting envelopes of "rent" payments and taking over the city once they had killed Salemme and his allies.

After the Devlin murder and before August 1994, members of the Carrozza faction, including Michael Romano, Ciampi Spisak, Ralph Scarpa, Enrico Ponzo, Marino, and Patti, met at Santarpio's, a restaurant in East Boston. Ciampi boasted of killing Devlin and asked who was going to do what next. The group discussed the need to eliminate their enemies and, specifically, their plans to kill Mark and Stephen Rossetti, Gillis, and Darin Buffalino, all members of the Salemme faction. After the meeting Romano told Spisak that Carrozza had told Romano that he had "a lot of faith in [Marino]."

During this period, between March 31 and August, 1994, a "peace" meeting took place between the warring factions at Kelly's Pub in Central Square in East Boston. Robert Luisi Jr. and Stephen Rossetti (Salemme faction members) met with Romano (from the Carrozza faction) to discuss Devlin's murder and a proposed truce. Luisi and Rossetti told Romano that the reason Devlin, Gillis, and Stephen Rossetti had been in the vicinity of Ciampi's club on the day Devlin was killed was to look for Marino, whom they suspected was involved in the attempted murder of Salemme in 1989.

There was no peace. On September 1, 1994, Michael Romano Jr. was murdered. Both Romano Jr. and his father, Romano Sr., were Carrozza stalwarts. At a Northgate Mall meeting, the Carrozza group, with Marino in attendance, discussed who was responsible for the murder, and initially focused on Joseph Cirame and Enrico Ponzo. They also suspected several members of the Salemme faction, including Cirame, Joseph Souza, David Clark, Lonnie Hilson, and Frank Salemme. The murder of Romano Jr. intensified the warfare.

The Carrozza faction developed a "hit list" of people to kill. Their hit list included known Salemme faction members and those believed responsible for killing Romano Jr. The defendants and others participated in several excursions to locate and shoot people on the hit list. The excursions started and ended at the Ciampi club.

At a meeting at the club, Arciero, Romano, Sean Cote, Scarpa, Paul DeCologero, Marino, and Patti discussed a plan to kill Salemme at an auto body shop in Somerville. They wanted both to avenge Romano's murder and to take over the Patriarca Family operation. At another meeting, Romano, Arciero, Cote, DeCologero, Scarpa, Gino Rida, Marino, and Patti planned to kill Lonnie Hilson in Everett because Hilson was "with Salemme."

In September 1994, Carrozza faction members twice attempted to murder Joseph Cirame, whom Romano Sr. suspected in the murder of Romano Jr. The first attempt failed; during the second, on September 16, Cirame was shot several times, but survived.

On September 21, 1994, Cote, while in a car driven by Patti, opened fire on Michael Prochilo, who was in his own car. Prochilo, who was in the Salemme faction, had stolen drugs from Patti. He was not hit.

On September 25, 1994, Cote stabbed Timothy Larry O'Toole in the arm because O'Toole was in the Salemme faction.

On October 13, 1994, several members of the Carrozza faction unsuccessfully attempted to murder Stephen Rossetti outside his home. This was only one of numerous attempts to kill Rossetti.

On October 20, 1994, Romano Sr. shot and killed Joseph Souza. Romano acted both to avenge his son's death and as part of the larger struggle between the...