U.S. v. Persico, s. 1036

• Citation: 832 F.2d 705
• Decision Date: 27 October 1987
• Docket Number: Nos. 1036,s. 1036
• Parties: , 24 Fed. R. Evid. Serv. 137 UNITED STATES of America, Appellee, v. Carmine PERSICO, a/k/a "Snake," a/k/a "Junior," Hugh McIntosh, a/k/a "Apples," Gennaro Langella, a/k/a "Jerry Lang," John DeRoss, a/k/a "Jackie," Anthony Scarpati, a/k/a "Scappy," Alphonse Persico, a/k/a "Little Allie Boy," Andrew Russo, a/k/a "Andy Mush," and Dominic Cataldo, a/k/a "Little Dom," Defendants- Appellants. to 1039, 1050 to 1052 and 1056, Dockets 86-1468, 86-1479 to 86-1484 and 86-1494.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 705

832 F.2d 705

89 A.L.R.Fed. 857, 24 Fed. R. Evid. Serv. 137

UNITED STATES of America, Appellee, v. Carmine PERSICO, a/k/a "Snake," a/k/a "Junior," Hugh McIntosh, a/k/a "Apples," Gennaro Langella, a/k/a "Jerry Lang," John DeRoss, a/k/a "Jackie," Anthony Scarpati, a/k/a "Scappy," Alphonse Persico, a/k/a "Little Allie Boy," Andrew Russo, a/k/a "Andy Mush," and Dominic Cataldo, a/k/a "Little Dom," Defendants- Appellants.

Nos. 1036 to 1039, 1050 to 1052 and 1056, Dockets 86-1468,

86-1479 to 86-1484 and 86-1494.

United States Court of Appeals Second Circuit.

Argued July 13, 1987.

Decided Oct. 27, 1987.

Stanley M. Meyer, New York City (DePetris & Meyer, New York City, of counsel; Martin G. Weinberg, Boston, Mass., of counsel, for defendant-appellant Carmine Persico), for defendants-appellants Carmine Persico, John DeRoss, Anthony Scarpati and Alphonse Persico.

Salvatore J. Marinello, Mineola, N.Y. (Elaine Jackson Stack, Marinello & Rosenstock, Mineola, N.Y., of counsel), for defendant-appellant Andrew Russo.

Susan G. Kellman, New York City, for defendant-appellant Hugh McIntosh.

Michael Young, New York City (David Breitbart, New York City, of counsel), for defendant-appellant Gennaro Langella.

John L. Pollok, New York City (Mark A. Summers, Susan C. Wolfe, Todtman, Hoffman, Epstein, Young, Goldstein, Tunick & Pollok, P.C., New York City, of counsel), for defendant-appellant Dominic Cataldo.

Aaron R. Marcu, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Bruce A. Baird, Frank H. Sherman, Stuart E. Abrams, Asst. U.S. Attys., New York City, of counsel), for appellee U.S.

Before NEWMAN, MINER and ALTIMARI, Circuit Judges.

MINER, Circuit Judge:

Defendants-appellants Carmine Persico, Hugh McIntosh, Gennaro Langella, John DeRoss, Anthony Scarpati, Alphonse Persico, Andrew Russo and Dominic Cataldo appeal from judgments entered in the United States District Court for the Southern District of New York (Keenan, J.), convicting them of various offenses arising from their participation in the affairs of the Colombo Family racketeering enterprise. All eight appellants were convicted of conspiracy to violate provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(d) (1982), and seven of the appellants were convicted of substantive RICO violations, id. Sec. 1962(c). In addition, the majority of appellants were convicted of various substantive offenses that also were charged as predicate racketeering acts.

On appeal, appellants raise a plethora of claims, only a few of which require discussion. Russo and McIntosh contend that their convictions for substantive RICO violations and RICO conspiracy must be overturned on statute of limitations and double jeopardy grounds. Langella challenges the district court's decision to empanel an anonymous jury. Carmine Persico claims that the district court's sequestration decisions were improper and he raises a due process challenge to the government's compensation arrangement with a key witness. Various appellants join in these claims, and all appellants challenge the admission of a co-conspirator's statements against them. Of these claims, the only ones that have merit are the statute of limitations claims advanced by Russo and McIntosh regarding their convictions under 18 U.S.C. Sec. 1962(c). As a result, we affirm the judgments convicting all appellants, except that we reverse as to the section 1962(c) convictions of Russo and McIntosh.

I. BACKGROUND

The factual predicate for the convictions giving rise to this appeal has been recounted in numerous recent opinions, see United States v. Langella, 804 F.2d 185 (2d Cir.1986); United States v. Russo, 801 F.2d 624 (2d Cir.1986); United States v. Persico, 774 F.2d 30 (2d Cir.1985); United States v. Persico, 646 F.Supp. 752 (S.D.N.Y.1986); United States v. Persico, 621 F.Supp. 842 (S.D.N.Y.1985); United States v. Persico, 620 F.Supp. 836 (S.D.N.Y.), aff'd, 774 F.2d 30 (2d Cir.1985); United States v. Persico, 520 F.Supp. 96 (E.D.N.Y.1981), familiarity with which is assumed. A general outline of the schemes alleged is presented below; to the degree necessary, specific factual recitations relating to the claims meriting review on this appeal are included as part of the discussion of those specific claims.

Appellants and six co-defendants were charged, in a 51-count superseding indictment filed on April 4, 1985, with leading, managing and participating in the Colombo Family racketeering enterprise, a professional criminal organization that is one of the New York City constituent units of the American Mafia, by committing or agreeing to commit numerous crimes. Of the six co-defendants not represented in this appeal, five had their cases severed prior to or during trial, and one, Frank Falanga, who was found guilty by the jury, died prior to sentencing.

The government delineated the organizational structure of the Colombo Family as follows: Carmine Persico, the Boss of the Colombo Family, assisted by Gennaro Langella, the Underboss, and a Consiglieri, or adviser, led the Family. Alphonse Persico, Carmine's eldest son, also was a trusted adviser and an initiate member of the Family. Anthony Scarpati, John DeRoss and Andrew Russo were Capos, or captains, in the organization. Each Capo is a trusted officer of the Family who leads a crew of "soldiers," consisting of initiated members of the Family. The "soldiers," in turn, command crews of "associates." An "associate" is a criminal colleague who either is ineligible for, uninterested in, or awaiting formal induction into the Mafia. Dominic Cataldo was a soldier in the Family, and Hugh McIntosh and deceased co-defendant Frank Falanga were associates.

All eight appellants were charged with conspiracy to conduct and participate in the affairs of the Colombo Family enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d). The enumerated predicate acts of racketeering included: extortion and labor bribery in the construction and restaurant industries; repeated bribes to an undercover Internal Revenue Service agent; bribery of federal prison officials; loansharking; and distributing large amounts of narcotics. Langella, DeRoss and Scarpati also were charged with conspiracy to participate in the Colombo Family's affairs through the collection of unlawful debts. 18 U.S.C. Sec. 1962(d); see id. Sec. 1962(c). In addition, all eight appellants were charged with the substantive crime of conducting and participating in the affairs of the Colombo Family enterprise through essentially the same pattern of racketeering activity described above, in violation of 18 U.S.C. Sec. 1962(c).

Various appellants were charged with substantive crimes that formed the basis for the patterns of racketeering activity alleged in the RICO counts. Many other charges were dismissed prior to or during trial and are not recounted here. Carmine Persico and Langella were charged with conspiracy to extort money from concrete construction firms in the New York City area, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (1982), and Langella was charged with participating in the commission of ten substantive extortionate acts involving various concrete construction companies. See id.; id. Sec. 1951(b)(2).

The government accused Langella and Carmine Persico of directing severed co-defendant Ralph Scopo, the president of the District Council of Cement and Concrete Workers Unions, to extort cash payments from at least ten different concrete contractors. These extortions were part of a two-tier scheme formulated by four of the La Cosa Nostra crime families in the New York City area. Pursuant to this scheme, construction projects worth $2 million dollars or less fell within the jurisdiction of the Colombo Family; contractors doing such jobs paid the Colombo Family one percent of the gross contract price of every job in order to prevent labor strife or supply problems. Jobs worth more than $2 million dollars were controlled by a consortium comprised of the Colombo Family and three other New York City area crime families. See generally Langella, 804 F.2d at 187-88.

John DeRoss, a vice president of Local 100 of the Hotel Employees and Restaurant Employees International Union, was charged with soliciting and receiving unlawful payments from, or in connection with, five Manhattan restaurants, in violation of 29 U.S.C. Sec. 186(b)(1) and 18 U.S.C. Sec. 2 (1982). The government alleged that DeRoss participated in a scheme in which bribes were solicited and received from restaurant owners so that the owners would be able to violate the terms of their agreements with Local 100 without interference from the union. The government contended that in one instance a bribe was solicited and received as compensation for allowing a restaurant owner to retain the lease for his restaurant.

Carmine Persico and Alphonse Persico were charged with paying bribes and gratuities to a federal prison official, in violation of 18 U.S.C. Secs. 201(b)(1), 201(b)(3) & 201(f) (1982). In this count, the government contended that the Persicos paid the bribes and gratuities to a prison official at the Federal Correctional Institution in Ashland, Kentucky, in order to obtain, or on account of, various unwarranted privileges the official sought or obtained for Carmine Persico, who then was an inmate at that correctional facility. The Persicos and Langella also were accused of offering and paying a $20,000.00 bribe to a federal official in exchange for Carmine Persico's transfer from one federal prison to another, in violation of 18 U.S.C. Sec. 201(b)(3).

Langella, Scarpati and Russo were charged with conspiracy to make extortionate extensions of credit, see 18 U.S.C. Secs. 891, 892, and conspiracy to collect extensions of credit using extortionate means, see id. Secs. 891, 894. The government's theory was that these appellants and others employed the...