U.S. v. Salerno

• Decision Date: 24 September 1991
• Docket Number: D,Nos. 1586-1601,s. 1586-1601
• Citation: 937 F.2d 797
• Parties: , 34 Fed. R. Evid. Serv. 1 UNITED STATES of America, Appellee, v. Anthony SALERNO, a/k/a "Fat Tony," Vincent Di Napoli, a/k/a "Vinnie," Louis Di Napoli, a/k/a "Louie," Matthew Ianniello, a/k/a "Matty the Horse," John Tronolone, a/k/a "Peanuts," Milton Rockman, a/k/a "Maishe," Nicholas Auletta, a/k/a "Nick," Edward J. Halloran, a/k/a "Biff," Alvin O. Chattin, a/k/a "Al," Richard Costa, a/k/a "Richie," and Aniello Migliore, a/k/a "Neil," Defendants, Matthew Ianniello, a/k/a "Matty The Horse," Vincent Di Napoli, a/k/a "Vinnie," Louis Di Napoli, a/k/a "Louie," Nicholas Auletta, a/k/a "Nick," Edward J. Halloran, a/k/a "Biff," Aniello Migliore, a/k/a "Neil," Anthony Salerno, a/k/a "Fat Tony," and Alvin O. Chattin, a/k/a "Al," Defendants-Appellants. ockets 88-1464, 88-1470 to 88-1474, 88-1477, 88-1547; 90-1291, 90-1292, 90-1296, 90-1297, 90-1301, 90-1311, 90-1312 and 90-1351.
• Court: U.S. Court of Appeals — Second Circuit

Page 797

937 F.2d 797

60 USLW 2106, 34 Fed. R. Evid. Serv. 1

UNITED STATES of America, Appellee, v. Anthony SALERNO, a/k/a "Fat Tony," Vincent Di Napoli, a/k/a "Vinnie," Louis Di Napoli, a/k/a "Louie," Matthew Ianniello a/k/a "Matty the Horse," John Tronolone, a/k/a "Peanuts," Milton Rockman, a/k/a "Maishe," Nicholas Auletta, a/k/a "Nick," Edward J. Halloran, a/k/a "Biff," Alvin O. Chattin a/k/a "Al," Richard Costa, a/k/a "Richie," and Aniello Migliore, a/k/a "Neil," Defendants Matthew Ianniello, a/k/a "Matty The Horse," Vincent Di Napoli, a/k/a "Vinnie," Louis Di Napoli, a/k/a "Louie," Nicholas Auletta, a/k/a "Nick," Edward J. Halloran, a/k/a "Biff," Aniello Migliore, a/k/a "Neil," Anthony Salerno a/k/a "Fat Tony," and Alvin O. Chattin, a/k/a "Al," Defendants-Appellants.

Nos. 1586-1601, Dockets 88-1464, 88-1470 to 88-1474,

88-1477, 88-1547; 90-1291, 90-1292, 90-1296,

90-1297, 90-1301, 90-1311, 90-1312 and 90-1351.

United States Court of Appeals, Second Circuit.

Argued May 8, 1991.

Decided June 28, 1991.

Rehearing Denied Sept. 24, 1991.

Alan M. Cohen, Mark R. Hellerer, Asst. U.S. Attys., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., Jonathan Leibman, Daniel Nardello, Cathy Seibel, Daniel C. Richman, Asst. U.S. Attys., S.D.N.Y., of counsel), for appellee.

Jay Goldberg, New York City (Judd Burstein, New York City, of counsel), for defendant-appellant Matthew Ianniello.

Michael E. Tigar, Austin, Tex. (Newman & Schwartz, Gustave H. Newman, New York City, of counsel), for defendant-appellant Vincent DiNapoli.

Robert L. Ellis, New York City, for defendant-appellant Louis DiNapoli.

Herbert J. Miller, Jr., Washington, D.C. (Miller, Cassidy, Larroca & Lewin, Stephen L. Braga, Edith R. Lampson, Washington, D.C., of counsel), for defendant-appellant Nicholas Auletta.

Frederick P. Hafetz, New York City (Goldman & Hafetz, Susan R. Necheles, Christy & Viener, Arthur H. Christy, Maria

T. Galeno, New York City, Toll, Ebby, Langer & Marvin, Peter F. Marvin, Philadelphia, Pa., Jeremy Gutman, New York City, of counsel), for defendant-appellant Edward J. Halloran.

Walter P. Loughlin, New York City, for defendant-appellant Aniello Migliore.

Judd Burstein, New York City (John Jacobs, New York City, of counsel), for defendant-appellant Anthony Salerno.

Patrick M. Wall, New York City, for defendant-appellant Alvin O. Chattin.

Before PRATT, MINER, and ALTIMARI, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

I. INTRODUCTION

For better or for worse, our circuit in recent years seems to have been the locus for "megatrials". See, e.g., Polizzi v. United States, 926 F.2d 1311, 1313 (2d Cir.1991) ("This appeal stems from what can only optimistically be called an aberration in the federal judicial system--the RICO megatrial"); United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir.1989) (thirty-five defendants charged in RICO indictment, twenty-one defendants tried in joint trial lasting over seventeen months and involving roughly 275 witnesses), cert. denied, --- U.S. ----, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990); Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 12 (2d Cir.1989) ("The [RICO pattern] problem is of serious consequence because a RICO trial often becomes a 'megatrial' with large numbers of unrelated defendants--charged with unconnected wrongs--tried together under the rubric of a single conspiracy"), cert. denied, --- U.S. ----, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990).

Defendants are often heard to complain that the government benefits from the ambiguity and confusion which accompanies these gargantuan indictments; despite the complaints, we have responded, sometimes grudgingly, by affirming the lion's share of the convictions in spite of our concerns about the unruliness of such cases. See, e.g., Casamento, 887 F.2d at 1151-53.

Similarly, defendants often complain that, because of the diversity of proof admissible in such an enormous case, they suffer not only from "prejudicial spillover", such as occurs "where a minor participant in one conspiracy was forced to sit through weeks of damaging evidence relating to another," United States v. Miley, 513 F.2d 1191, 1209 (2d Cir.) (Friendly, J.), cert. denied sub nom. Goldstein v. United States, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975), but also from prejudice transferred across the line separating conspiracies, or defendants, "so great that no one really can say prejudice to substantial right has not taken place." Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946).

This case--an enormous one involving bid-rigging in the New York City concrete industry, with numerous small, tangentially-related counts attached like barnacles--creates a problem different from, but related to, the concept of prejudicial spillover: that of "spillover taint". Serious error that occurred during this enormous trial requires the reversal of that portion of the case representing the majority of the convictions. This error, when combined with other aspects of the trial that raise serious questions of fairness, leads us to the conclusion that all of the convictions must be reversed. After reversing what was by far the largest portion of the indictment, we cannot really say that prejudice to substantial right would not take place if we left only a few of the collateral convictions intact. The likelihood of spillover taint running from the erroneously-achieved convictions to the remaining few is enough to undermine our confidence in the accuracy of all of the guilty verdicts. We therefore reverse the convictions of all appealing defendants and remand for further proceedings in the district court.

II. FACTS AND BACKGROUND

The history of this case is long and complex. At this point we set forth its general background and outline; further factual details will be discussed later in the opinion where pertinent to specific issues.

A. The Commission Case

Well before the indictment in this case was handed down, a much shorter RICO trial (eleven weeks) involving many of the same facts was held in the Southern District of New York. This trial, which came to be known as the "commission case", alleged a RICO enterprise known as the "commission" of La Cosa Nostra:

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 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.

United States v. Salerno, 868 F.2d 524, 528 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989).

The government charged, as predicate racketeering acts in the commission case, three general commission schemes. One alleged scheme was the concrete contractors' "club":

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.

Id. at 529.

There was an interesting relationship between the commission case and the timing of the indictments in the case before us. The final (third superseding) indictment in the commission case was filed on March 13, 1986. Eight days later, the initial indictment was filed in this case (the "club case"). The trial of the commission case began on September 8, 1986. Ten days later, the first superseding indictment in the club case was filed. The jury returned its verdicts against the commission defendants on Nov. 19, 1986; the defendants were thereafter sentenced on Jan. 13, 1987. Two days later, the government filed its second superseding indictment in the club case.

After an in banc hearing as to one commission case defendant, 865 F.2d 1370 (2d Cir.1989), we affirmed all of the convictions, with the exception of one RICO count against one defendant, which we reversed.

B. The Indictment

On April 7, 1987, a grand jury for the Southern District of New York charged eleven defendants (Anthony Salerno, ...