U.S. v. Rastelli

• Citation: 870 F.2d 822
• Decision Date: 16 March 1989
• Docket Number: 220 and 221,6-10,Nos. 1-4,D,s. 1-4
• Parties: 130 L.R.R.M. (BNA) 2966, 57 USLW 2610, 111 Lab.Cas. P 11,078, 27 Fed. R. Evid. Serv. 860 UNITED STATES of America, Appellee, v. Philip RASTELLI, Nicholas Marangello, Joseph Massino, Carmine Rastelli, James Vincent Bracco, Charles Martelli, Charles Agar, Anthony Cantatore, Warren Weissman and Dominic Mariani, Defendants-Appellants. ockets 87-1057 to 87-1064, 87-1097, 87-1098 and 87-1443.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 822

870 F.2d 822

130 L.R.R.M. (BNA) 2966, 57 USLW 2610,

111 Lab.Cas. P 11,078,

27 Fed. R. Evid. Serv. 860

UNITED STATES of America, Appellee, v. Philip RASTELLI, Nicholas Marangello, Joseph Massino Carmine Rastelli, James Vincent Bracco, Charles Martelli Charles Agar, Anthony Cantatore, Warren Weissman and Dominic Mariani, Defendants-Appellants.

Nos. 1-4, 6-10, 220 and 221, Dockets 87-1057 to 87-1064,

87-1097, 87-1098 and 87-1443.

United States Court of Appeals Second Circuit.

Argued Oct. 12, 1988.

Decided March 16, 1989.

Frank J. Marine, Atty., U.S. Dept. of Justice, Washington, D.C. (Edward A. McDonald, Attorney-in-Charge, U.S. Dept. of Justice Organized Crime Strike Force, E.D.N.Y., Laura A. Brevetti, Alan M. Friedman, Sp. Attys., Organized Crime Strike Force, Andrew J. Maloney, U.S. Atty., E.D.N.Y., of counsel), for appellee.

Stanley A. Teitler, New York City (Michael J. Coyle, of counsel), for defendants-appellants Philip and Carmine Rastelli.

Mark F. Pomerantz, New York City (Ronald P. Fischetti, David T. Grudberg, Warren L. Feldman, Fischetti & Pomerantz, of counsel), for defendant-appellant Joseph Massino.

Norman A. Olch, New York City (Robert Blossner, New York City, William Lupo, Brooklyn, N.Y., of counsel), for defendant-appellant Nicholas Marangelo.

Lynne F. Stewart, New York City, for defendant-appellant James Bracco.

Linda Stagno, New York City (Jonathan Marks, Geoffrey Stewart, Power, Weiss & Marks, of counsel), for defendant-appellant Martelli.

Louis M. Freeman, New York City (Freeman, Nooter & Ginsberg, of counsel), for defendant-appellant Agar.

Thomas H. Nooter, New York City (Freeman, Nooter & Ginsberg, of counsel), for defendant-appellant Cantatore.

Nathaniel Akerman, New York City (Pryor, Cashman, Sherman & Flynn, of counsel), for defendant-appellant Warren Weissman.

Gerald L. Shargel, New York City (Judd Burstein, of counsel), for defendant-appellant Dominic Mariani.

Before KEARSE, PRATT, and MAHONEY, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Defendants Philip Rastelli, Nicholas Marangello, Joseph Massino, Carmine Rastelli, James Vincent Bracco, Charles Martelli, Charles Agar, Anthony Cantatore, Warren Weissman, and Dominic Mariani appeal from judgments entered against them in the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, convicting them of various offenses arising from their participation in a wide variety of criminal activities designed to obtain money from the New York moving and storage industry.

Because we find no merit in any of the numerous contentions defendants raise on appeal, we affirm the conviction of each defendant on each count upon which he was convicted.

A. BACKGROUND

Seventeen defendants were originally charged in a sixty-four count indictment with leading, managing, and participating in a racketeering enterprise which had as its object the control and use of a union--the International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen's and Appliance Home Delivery Union (Local 814)--to obtain money from New York moving and storage companies through various schemes and acts of extortion, rigging bids for government contracts, requiring unlawful employer payoffs, and receiving and making illegal payments to union representatives. In exchange for the payoffs, the companies received, according to the indictment, labor peace, lucrative government contracts, relaxed enforcement of union rules and contracts, and other benefits.

The indictment charged that from approximately January 1, 1964, to June 11, 1985, all the appealing defendants operated through an enterprise consisting of individuals from the following four groups "associated in fact" within the meaning of 18 U.S.C. Sec. 1961(4): (1) members and associates of the Bonanno organized crime family which is connected to the nationwide criminal organization known as "La Cosa Nostra"; (2) officers, representatives, members and employees of Local 814; (3) trustees, administrators, representatives, and employees of Local 814's Welfare Fund, Pension Fund, and Annuity Fund; and (4) owners, officers, representatives, and employees of various moving and storage companies and other businesses.

Following a six-month jury trial, all appealing defendants except Agar were convicted of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(d) (1982). Various defendants were also convicted of other substantive crimes including receiving illegal payments from employers in violation of the Taft-Hartley Act, 29 U.S.C. Sec. 186(b)(1) and (d); conspiring to commit extortion, 18 U.S.C. Sec. 1951; making illegal payments to union representatives, 29 U.S.C. Sec. 186(a)(2) and (d); receiving or making payments to influence the operation of an employee benefit plan, 18 U.S.C. Sec. 1954; making false declarations to a grand jury and obstructing justice, 18 U.S.C. Sec. 1623(a) and 18 U.S.C. Sec. 1503; conspiring to violate the Taft-Hartley Act, 29 U.S.C. Sec. 186(a)(2) and (b)(1) and 18 U.S.C. Sec. 1954; and conspiring to commit and committing mail fraud, 18 U.S.C. Secs. 371 and 1341. The jury found the appealing defendants guilty on some charges and not guilty on others.

The eight appellate briefs raise thirty-one separate issues for consideration. Having carefully reviewed each contention, we find no merit in any of them; indeed, most of the contentions are not even worthy of discussion. Because of their importance or their novelty in this circuit, however, the following eight issues warrant brief discussion: (1) whether there was sufficient evidence to support certain convictions; (2) whether Bracco and Martelli's convictions for mail fraud were improperly based on the intangible rights theory rejected by the Supreme Court in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); (3) whether a RICO conspiracy conviction can be based on commission of racketeering acts under an aider and abettor theory; (4) whether the government's loss of allegedly exculpatory tape recordings and bid documents requires reversal of Weissman's convictions; (5) whether a district court may, sua sponte, send the jury back to consider its verdict without first polling them to determine if there is a lack of unanimity when the foreman indicates that there is uncertainty regarding the jury's verdict; (6) whether the government made impermissible use of immunized grand jury testimony; (7) whether a coconspirator's statement explaining the disbursement of extorted money was "in furtherance" of the conspiracy; and (8) whether claims against defendant Marangello are barred by the statute of limitations.

B. DISCUSSION

1. Sufficiency of the Evidence

Seven defendants claim on appeal that the evidence was insufficient to support the jury's guilty verdicts on specific counts. Although we discuss only the strongest of these claims, we find all to be nonmeritorious.

A defendant challenging the sufficiency of the evidence on appeal bears a heavy burden. United States v. Arocena, 778 F.2d 943, 950 (2d Cir.1985), cert. denied, 475 U.S. 1053, 106 S.Ct. 1281, 89 L.Ed.2d 588 (1986); United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). We determine on review only if, viewed in the light most favorable to the government, there is substantial evidence to support the jury's findings. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Furthermore, all issues of credibility must be considered to lie solely within the jury's province, and all reasonable inferences must be drawn in the government's favor. United States v. Friedman, 854 F.2d 535, 553 (2d Cir.1988); United States v. Singh, 628 F.2d 758, 765-66 (2d Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 609, 66 L.Ed.2d 496 (1980).

a. Knowing Association with the Enterprise

Defendants Massino, Weissman, and Cantatore contend that there was insufficient evidence to establish their knowing association with the RICO enterprise, grounding their insufficiency claims primarily on the reasoning of a district court decision, United States v. Castellano, 610 F.Supp. 1359 (S.D.N.Y.1985), which they claim requires the government to prove that each member of a RICO conspiracy is aware of each specific component of the enterprise. Massino, a "capo" or captain in the Bonanno family, argues that there is no evidence that he knew that members of Local 814's pension and welfare fund comprised a component of the enterprise. Weissman, an employee, officer, and representative of a moving company called Deluxe Vans Inc., argues a lack of evidence that he knew that the Bonanno family, by its specific name, was connected to the enterprise. Cantatore, who was at various times an auditor for Local 814's benefit funds and a delegate and organizer for Local 814, also argues that the evidence did not establish his knowledge of the organized crime component.

We note first that defendants' arguments are based on a misconception of the Castellano holding. The district court in that case held only as follows:

[A]ny defendant prosecuted under section 1962(c) must be shown to have been aware of at least the general existence of the enterprise named in the indictment. * * * [T]he government [must] show, at a minimum, that the defendant was aware of the existence of a group of persons, organized into a structure of some sort, and engaged in ongoing activities, which the government can prove falls within the definition of enterprise contained in section 1961(4).

Castellano, 610 F.Supp. at 1401. The court in Castellano went on to find that knowledge of the enterprise could be inferred from evidence of close association with other conspirators with the required knowledge and from participation with members of the enterprise in meetings and activities that furthered...