U.S. v. Masotto

• Decision Date: 03 January 1996
• Docket Number: No. 38,D,38
• Parties: UNITED STATES of America, Appellee, v. Thomas MASOTTO, Defendant-Appellant. ocket 94-1666.
• Court: U.S. Court of Appeals — Second Circuit

Page 1233

73 F.3d 1233

UNITED STATES of America, Appellee, v. Thomas MASOTTO, Defendant-Appellant.

No. 38, Docket 94-1666.

United States Court of Appeals Second Circuit.

Argued Sept. 20, 1995.

Decided Jan. 3, 1996.

Alan S. Futerfas, New York City, and John L. Pollok, Hoffman & Pollok, New York City (Michael Rosen, New York, NY, of counsel), for Defendant-Appellant.

James Orenstein, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Susan Corkery, Mark O. Wasserman, Assistant United States Attorneys, of counsel), for Appellee.

Before: OAKES, MINER and MAHONEY, Circuit Judges.

MINER, Circuit Judge:

Defendant-appellant Thomas Masotto appeals from a judgment of conviction and sentence entered in the United States District Court for the Eastern District of New York (Platt, then-Chief Judge) following a jury trial. A superseding indictment charged Masotto with racketeering in violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. Sec. 1962(c) (count one), racketeering conspiracy in violation of RICO, 18 U.S.C. Sec. 1962(d) (count two), conspiracy to commit arson of an FBI surveillance post in violation of 18 U.S.C. Sec. 371 (count three), arson of the surveillance post in violation of 18 U.S.C. Sec. 844(f) (count four) On appeal, Masotto contends, inter alia, that the district court erred in its jury instructions regarding the counts charging racketeering and use of a firearm, and that there is insufficient evidence to sustain his conviction on the Sec. 924(c) violation. For the reasons that follow, we affirm.

destruction of government property in violation of 18 U.S.C. Sec. 1361 (count five), conspiracy to commit robbery between March of 1991 and June of 1992 in violation of 18 U.S.C. Sec. 1951 (count six), robbery of an All-Pro Air Delivery Service truck (the "All-Pro truck") in violation of 18 U.S.C. Sec. 1951 (count seven), robbery of a truck owned by Harold Levinson and Associates (the "Levinson truck") in violation of 18 U.S.C. Sec. 1951 (count eight), conspiracy to steal from an interstate shipment in violation of 18 U.S.C. Sec. 371 (count nine), theft from interstate shipment of telephones in violation of 18 U.S.C. Sec. 659 (count ten), conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. Sec. 892 (count eleven), conspiracy to use extortionate means to collect extensions of credit in violation of 18 U.S.C. Sec. 894 (count twelve), conspiracy to commit credit card fraud in violation of 18 U.S.C. Sec. 1029(b)(2) (count thirteen), credit card fraud in violation of 18 U.S.C. Sec. 1029(a)(2) (count fourteen), using and carrying a firearm during the robbery of the All-Pro truck in violation of 18 U.S.C. Sec. 924(c)(1) (count fifteen), and using and carrying a firearm during the robbery of the Levinson truck in violation of 18 U.S.C. Sec. 924(c)(1) (count sixteen). The jury found Masotto guilty of counts one through seven and counts nine through 15. The district court sentenced Masotto to a 248-month term of imprisonment, a 6-year term of supervised release, and a $700 special assessment.

BACKGROUND

In July of 1990, the Federal Bureau of Investigation ("FBI") began conducting an investigation of Masotto, who was believed to be an associate of the Gambino Organized Crime Family of La Cosa Nostra. As part of the investigation, the FBI established a surveillance post in a building located on the same street as Michael's Ristorante, a restaurant owned and operated by Masotto and located on Woodcleft Avenue in Freeport, New York. In January of 1991, Masotto discovered the FBI surveillance post and enlisted a friend, Frank Scerbo, and one of Scerbo's acquaintances, Joseph Lucas, to burn down the building containing the surveillance post. On February 22, 1991, Lucas set fire to the building.

Following the arson, according to the government, Lucas, Scerbo, and another of Masotto's friends, Peter Bertuglia, formed a crew (the "crew") with Masotto as the leader. These men formed the crew for the principal purpose of enriching themselves by committing a variety of crimes. Masotto purportedly was a member of the Gambino Family, and consequently was able to provide the crew members with the necessary "backing" to commit their crimes. He could protect the crew from competing crime organizations and could provide a network for distributing the proceeds of the crimes. Eventually, other persons, including Michael Varone and Dave Amato, joined the crew.

In June of 1991, the crew began to hijack trucks carrying commercial goods. On June 18, 1991, Lucas and other crew members stole a truck containing approximately 150 cases of telephones. Masotto allegedly helped the crew store the truck and sell the telephones. In addition, Masotto personally received some of the stolen telephones as well as proceeds from their sale. On July 23, 1991, the crew hijacked the All-Pro truck containing a shipment of yarn. During the course of the robbery, Lucas and Amato carried guns, and Amato used a gun to force the driver from the truck. On October 22, 1991, the crew hijacked the Levinson truck containing a load of cigarettes. The government contended that Masotto was aware that the crew members were using guns during the robberies. The crew planned and executed additional truck hijackings and robberies in 1991 and 1992. In addition to these crimes, the crew engaged in a variety of other criminal activities.

In June of 1992, Varone, Lucas, and other members of the crew were arrested after an investigation by the Suffolk County District Attorney's Office. Following their arrests In December of 1992, a grand jury returned an indictment against Masotto charging him with several crimes. On September 23, 1993, the superseding indictment was filed, and Masotto's trial commenced in January of 1994. Following the completion of all testimony, the district court held a conference pursuant to Rule 30 of the Federal Rules of Criminal Procedure to discuss the proposed jury instructions. Thereafter, on February 22, 1994, the court instructed the jury. Masotto objected to the court's instruction on the elements of the RICO offenses charged in counts one and two of the indictment because the instruction did not contain language from the Supreme Court's decision in Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). Masotto also objected to the district court's instruction on count 15, which allowed the jury to convict Masotto of using and carrying a firearm either under an aiding and abetting theory of liability or under a Pinkerton theory of liability. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

Varone, Lucas, Scerbo, and Bertuglia agreed to cooperate with the government in its investigation of Masotto.

The jury returned its verdict on February 28, 1994. This appeal followed the imposition of the sentence.

DISCUSSION

I. Jury Instruction on the Elements of RICO

Masotto contends that the district court erroneously instructed the jury with respect to counts one and two of the indictment relating to the RICO violations. Masotto contends that the jury instruction on the elements of RICO was erroneous because it failed to include the "operation or management" language from the Supreme Court's decision in Reves. The government, however, claims that Masotto has waived this contention because he did not object properly to the district court's instruction at trial.

A. Preservation of Objection

Federal Rule of Criminal Procedure 30 provides in pertinent part: "No party may assign as error any portion of the [jury] charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." The objection "must direct the trial court's attention to the contention that is to be raised on appeal." United States v. Scarpa, 913 F.2d 993, 1020 (2d Cir.1990) (quotation omitted). The purpose of this provision is to provide the trial court with an opportunity to correct any error in the jury instructions before the jury begins deliberating. 2 Charles A. Wright, Federal Practice and Procedure Sec. 484, at 698 (1982).

In the present case, the record indicates that Masotto repeatedly requested that the district court include the Reves language in its jury instruction on the elements of RICO and objected when the court failed to include the Reves' "operation or management" language in its instruction. ¹ Request number 11 of Masotto's proposed jury instructions contained the "operation or management" language of Reves. ² In addition, at the Rule 30 Conference, Masotto's counsel mentioned We had requested an instruction based on the Reeve's [sic] decision. I didn't hear any language on--my understanding is that your Honor ruled on that and decided not to include that language.... We might have had it under our first set of requests to your Honor's instructions under Reeve's [sic], talking about that decision, the extent to which an individual must participate. That's what the Reeve's [sic] decision was about.

                the Reves decision when discussing the proposed jury instruction relating to the elements of RICO.  Masotto's counsel stated that "when you are going into defining how those elements [are] to be established or not established, then I guess there is the best place to put the law as recited by the Supreme Court in the Reves case."   While the court was reviewing the government's proposed instruction on the elements of RICO, Masotto's counsel asserted that "there is no language in there ... from the Reves [case]" and requested that the court adopt the language contained in request number 11 of his proposed instructions.  Finally, after the court instructed the jury, Masotto's counsel stated
                

Although Masotto repeatedly objected to the...