U.S. v. Salerno
| Decision Date | 31 January 1989 |
| Docket Number | Nos. 91-106,D,s. 91-106 |
| Citation | 868 F.2d 524 |
| Parties | 27 Fed. R. Evid. Serv. 868 UNITED STATES of America, Appellee, v. Anthony SALERNO, Carmine Persico, Gennaro Langella, Anthony Corallo, Salvatore Santoro, Ralph Scopo, Christopher Furnari and Anthony Indelicato, Defendants-Appellants. ockets 87-1075 to 87-1078, 87-1082 to 87-1085 and 87-1208 to 87-1215. |
| Court | U.S. Court of Appeals — Second Circuit |
Anthony Cardinale, Boston, Mass. (Walter P. Loughlin, Newark, N.J. and Judd Burstein, New York City, of counsel), for defendant-appellant Anthony Salerno.
Carmine Persico, New York City, pro se.
Frank Lopez, Brooklyn (Sercarz, Schechter & Lopez, Brooklyn, N.Y., of counsel), for defendant-appellant Gennaro Langella.
Albert Gaudelli, Flushing, N.Y. (Walter P. Loughlin, Newark, N.J. and Judd Burstein, New York City, of counsel), for defendant-appellant Anthony Corallo.
Samuel H. Dawson, New York City (Walter P. Loughlin, Newark, N.J. and Judd Burstein, New York City, of counsel), for defendant-appellant Salvatore Santoro.
John Jacobs, New York City (Walter P. Loughlin, Newark, N.J. and Judd Burstein, New York City, of counsel), for defendant-appellant Ralph Scopo.
Barry Fallick, New York City (Rochman, Platzer & Fallick, New York City, of counsel), for defendant-appellant Christopher Furnari.
Robert Blossner, New York City (Mark F. Pomerantz, Warren L. Feldman, David T. Gradberg, Fischetti & Pomerantz, New York City, of counsel), for defendant-appellant Anthony Indelicato.
John F. Savarese, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Aaron R. Marcu, Asst. U.S. Atty., Michael Chertoff and John Gilmore Childers, Sp. Asst. U.S. Attys., New York City, of counsel), for appellee.
Before PRATT and MAHONEY, Circuit Judges, and BRIGHT, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.
Anthony Salerno, Carmine Persico, Gennaro Langella, Anthony Corallo, Salvatore Santoro, Ralph Scopo, Christopher Furnari and Anthony Indelicato appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, Richard Owen, Judge, after an eleven week jury trial. All appellants were convicted of RICO conspiracy, 18 U.S.C. Sec. 1962(d) (1982), and substantive RICO, 18 U.S.C. Sec. 1962(c) (1982), violations. All appellants except Indelicato were convicted of conspiracy to commit extortion and twelve counts of extortion or attempted extortion, in violation of 18 U.S.C. Sec. 1951(a) (1982). Scopo was convicted as a principal, and all other appellants except Indelicato were convicted as aiders and abettors, 18 U.S.C. Sec. 2 (1982), of six labor bribery violations, 29 U.S.C. Sec. 186(b)(1) (Supp. IV 1986). Corallo and Santoro were convicted of conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. Sec. 892 (1982). The non-RICO convictions correspond to the predicate acts of the two RICO counts. In addition, Indelicato was charged with three RICO predicate acts of murder, which the jury found he committed, for which there were no corresponding non-RICO counts in the indictment.
Each defendant except Indelicato was sentenced to a total of one-hundred years imprisonment. Indelicato was sentenced to forty years imprisonment for his two RICO violations. Corallo and Santoro were each sentenced to total fines of $250,000 and assessed costs of prosecution. All other appellants except Indelicato were each sentenced to total fines of $240,000 and assessed costs of prosecution. Indelicato was fined $50,000. In addition to challenging their convictions on numerous grounds, appellants also challenge the severity of these sentences.
By order entered April 1, 1988, this court determined to hear the appeal of defendant Indelicato in banc, limited to the issue addressed in Point II of his brief and Point VI of the government's brief filed with this panel (i.e., whether the simultaneous murders of Carmine Galante, Leonard Coppola and Giuseppe Turano constituted a "pattern of racketeering activity" within the meaning of 18 U.S.C. Sec. 1962(c) (1982)). The in banc court thereafter decided that issue adversely to Indelicato and remanded the case to this panel for further proceedings consistent with the in banc ruling. See United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989).
We affirm the judgment of the district court, except that we reverse the conviction of Indelicato on the substantive RICO count.
The RICO enterprise alleged in the indictment is an organization known as the "Commission" of La Cosa Nostra, a nationwide criminal society which operates through local organizations known as "families." The indictment alleged, and substantial evidence at trial established, that the Commission has for some time acted as the ultimate ruling body over the five La Cosa Nostra families in New York City and affiliated families in other cities. The general purpose of the Commission is to regulate and facilitate the relationships between and among the several La Cosa Nostra families, and more specifically to promote and coordinate joint ventures of a criminal nature involving the families, to resolve disputes among the families, to extend formal recognition to "bosses" of the families and on occasion resolve leadership disputes within a family, to approve the initiation or "making" of new members of the families, and to establish rules governing the families, officers and members of La Cosa Nostra. There are five New York City families (i.e., the Genovese, Gambino, Colombo, Lucchese and Bonanno families). Since the late 1970s, the Commission was controlled by the bosses of four of those families, often acting through their deputies. Due to internal instability, the Bonanno family was denied a seat on the Commission during this period.
The government established that from the late 1970s until 1985, Salerno was first acting boss and subsequently boss of the Genovese family; Corallo was boss of the Lucchese family, which Santoro served as "underboss" and Furnari as "consigliere" (the positions ranking immediately below the family boss); Persico was boss of the Colombo family, Langella its underboss, and Scopo a member of that family and the president and business manager of the District Council of Cement and Concrete Workers, Laborers International Union of North America (the "District Council"); and Indelicato was a member of the Bonanno family, who was approved by the Commission for promotion to the rank of "capo" (i.e., leader of a subordinate group within the family) some time after his participation in the murder of Carmine Galante and two associates, at the direction of the Commission. Philip Rastelli, a rival to Galante for Bonanno family leadership, was originally named a defendant, but was severed from the trial of this case because he was on trial in the Eastern District of New York in another criminal case. Paul Castellano, boss of the Gambino family, was also named a defendant, but was murdered prior to trial.
The indictment alleged racketeering acts related to three general Commission schemes.
The first scheme, an extortion and labor bribery operation known as the "Club," involved all appellants except Indelicato. The Club was an arrangement between the Commission, several concrete construction companies working in New York City, and the District Council, a union headed by Scopo. The Club was a cooperative venture among the Families, and the Commission set rules and settled major disputes arising out of the scheme. The rules of the Club were: only such construction companies as the Commission approved would be permitted to take concrete construction jobs worth more than two million dollars in New York City; any contractor taking a concrete job worth more than two million dollars would be required to pay the Commission two percent of the construction contract price; the Commission would approve which construction companies in the Club would get which jobs and would rig the bids so that the designated company submitted the lowest bid; the Commission would guarantee "labor peace" to the construction companies in exchange for compliance with the rules of the Club; and the Commission would enforce compliance by threatened or actual labor unrest or physical harm, even to the point of driving a company out of the concrete business. According to the government, seven concrete construction companies were participants in this extortionate scheme.
The second scheme, a loansharking conspiracy, involved appellants Corallo and Santoro. Corallo's nephew, John DiLeo, had been running a loansharking operation on Staten Island, in Gambino family "territory," without the permission of the Gambino family. DiLeo's son-in-law, who was the son of a Gambino family member and was engaged in criminal activities with DiLeo, was then ordered to conduct those activities under the supervision of the Gambino family, and DiLeo complained to Corallo, the boss of the Lucchese family. Several recorded conversations show that DiLeo asked Corallo to intercede with Paul Castellano and the Gambino family to resolve this dispute. At Corallo's direction, Santoro and Salvatore Avellino, Corallo's driver, met with Paul Castellano and two other Gambino family members. As a result, the Lucchese and Gambino families reached an accord allowing DiLeo to continue his illegal activities on Staten Island as long as he was not doing so on his own; he was to report to Corallo, and the Gambino family was to be kept informed concerning DiLeo's activities. DiLeo was subsequently ordered by Corallo to continue reporting to him, and surveillance photographs show that DiLeo did in fact continue to meet with Avellino and Corallo after the accord was reached.
The third scheme involved the murder of Carmine Galante and his associates, Giuseppe Turano and Leonard...
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