U.S. v. Yannotti

• Decision Date: 04 September 2008
• Docket Number: Docket No. 06-5571-cr.
• Citation: 541 F.3d 112
• Parties: UNITED STATES of America, Appellee, v. Michael YANNOTTI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

541 F.3d 112

UNITED STATES of America, Appellee, v. Michael YANNOTTI, Defendant-Appellant.

Docket No. 06-5571-cr.

United States Court of Appeals, Second Circuit.

Argued: December 20, 2007.

Decided: September 4, 2008.

Diarmuid White, White & White (Brendan White, on the brief), New York, N.Y., for Defendant-Appellant.

Elie Honig, Assistant United States Attorney (Katherine Polk Failla, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.

Before: KATZMANN, B.D. PARKER, and RAGGI, Circuit Judges.

B.D. PARKER, JR., Circuit Judge:

Michael Yannotti appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Scheindlin, J.). The jury convicted him of conspiring to engage in racketeering in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act. See 18 U.S.C. § 1962(d). The district court sentenced Yannotti principally to 240 months' incarceration. Yannotti's appeal raises several issues. We consider whether one of the counts of conviction was time-barred, whether the district court properly admitted certain intercepted communications, and whether the evidence was sufficient to support his conviction for racketeering conspiracy. We also review the reasonableness of his sentence. We affirm.

BACKGROUND

On July 21, 2004, the government indicted Yannotti and his co-defendants, John Gotti Jr. and Louis Mariani, alleging that they were members of the Gambino Crime Family,¹ a racketeering enterprise that engaged in, inter alia, extortion, extortionate extensions of credit, securities fraud, as well as violent conduct including murder.² Specifically, Yannotti was charged with a substantive count of racketeering in Count One and with participating in a RICO conspiracy that existed from the mid 1990s through 2004 in Count Two. See 18 U.S.C. § 1962(c), (d). Count One specifically charged Yannotti with participation in four separate predicate acts: Racketeering Act One charged Yannotti with conspiring to kidnap, kidnaping and attempting to murder Curtis Sliwa; Act Two charged Yannotti with conspiring to murder and murdering Robert Arena, and murdering Thomas Marenga; Act Three charged Yannotti with attempting to murder Robert Tarantola and Act Seven charged Yannotti with loansharking, specifically conspiring to make and collect extortionate extensions of credit throughout the 1990s. The aforementioned predicate acts were incorporated by reference in Count Two, along with several other predicate acts, including securities fraud and extortion in the construction industry, allegedly committed by Yannotti's co-defendants in furtherance of the enterprise's affairs. Yannotti was also charged with murdering Arena and Marenga in aid of racketeering in Counts Nine and Ten.

The government's proof at trial included testimony from several members and associates of the Gambino Crime Family, as well as from law enforcement officers. These witnesses described Yannotti's criminal activities as an associate of Family member Nicholas Corozzo, whose crew was based in the Canarsie section of Brooklyn. In addition to Yannotti's loansharking activity, the government offered proof, primarily thorough Gambino Family associate Andrew DiDonato, that Yannotti was involved in the 1987 shooting of Robert Tarantola, an associate of the Colombo Crime Family, a rival criminal enterprise. Gambino Family captain Michael DiLeonardo and soldier Joseph D'Angelo testified about Yannotti's involvement in a 1992 conspiracy to abduct and murder Curtis Sliwa, a radio host and founder of the Guardian Angels, in retaliation for his public criticism of John Gotti, Sr., then head of the Gambino Family. Finally, DiDonato and DiLeonardo testified that in 1996, Yannotti shot Robert Arena and Thomas Marenga as a result of a conflict between Yannotti's crew and members of the Lucchese Crime Family, a rival criminal enterprise. In addition to testimonial evidence, the government offered surveillance photographs, a beeper recovered at the scene of the Arena and Marenga murders, records indicating that the beeper belonging to Yannotti, recorded conversations between Yannotti and his loansharking customers, and additional loansharking records.

During trial, two evidentiary issues arose that figure in this appeal. The first concerned the admissibility of certain evidence secured as a result of a 1996 court authorized wiretap of a cellular phone used by Corozzo and his associates in Florida. The affidavit in support of the application averred that the phone was being used by Corozzo and "others yet unknown" in furtherance of a racketeering conspiracy that engaged in loansharking and money laundering, largely in New York. While the affidavit sought authorization to intercept conversations of Corozzo and several other named individuals, it did not identify Yannotti among the anticipated interceptees. It did, however, state that probable cause existed to suspect that "unknown others" used the phone while engaging in illegal activity.

On April 22, 1996, the day that the application was approved, Corozzo left the cell phone that was the subject of the application in Florida and returned to New York. The next day, the FBI intercepted its first phone call from Yannotti made on the target phone. The government's initial ten-day progress report to the judge supervising the wiretap described two phone calls made by Yannotti involving the collection of loansharking debts. The report explained that "Michael Yannotti will be identified as a named interceptee [on the wiretap application] if an extension affidavit is filed in this case." Finally, the government informed the judge that it believed that the phone would continue to be used by Yannotti, Corozzo, and unnamed others to discuss the offenses described in the initial authorizing order. The government never intercepted any phone calls from Corozzo or sought an extension of the wiretap, thus, Yannotti was never formally named in the authorization. See United States v. Yannotti, 399 F.Supp.2d 268, 270 (S.D.N.Y.2005).

Before the start of the trial, Yannotti moved to suppress the two calls on the ground that the agents had exceeded their authority in continuing to intercept calls well after learning that Corozzo no longer possessed the phone. He argued that the agents were required to seek new authorization to intercept his conversations and that the continued interception converted the initial authorization into a general warrant proscribed by the Fourth Amendment. The district court disagreed, pointing to the fact that the initial order permitted the interception not only of Corozzo and others specifically named in the authorization, but also "others yet unknown", and consequently was not limited to the interception of calls placed by Corozzo himself. Yannotti, 399 F.Supp.2d at 273. The court concluded that due to the easy mobility of cellular phones, the government was not required to seek a new authorization each time that a new person used the phone. Additionally, the government reasonably believed that the phone would continue to be used as an instrument of the charged conspiracy while in Yannotti's possession. Id. For these reasons, the court concluded that the scope of the warrant and the reasonableness of the government's conduct posed no constitutional problems.

The second evidentiary issue relevant to this appeal concerned the admissibility of certain lay opinion testimony and poses the question whether Andrew DiDonato, a government witness, was properly allowed to interpret the two intercepted conversations involving Yannotti. DiDonato first testified about his participation, and assistance to Yannotti, in the loansharking conspiracy. He then explained that individuals who received extortionate loans usually made weekly payments on the interest rather than on the principal and that the interest was usually termed "points" by those involved in loansharking. In response to the government's question about the meaning of a loansharking victim's statement to Yannotti that "I'm going to leave you a two," DiDonato testified that it meant "200 dollars" in interest. DiDonato also testified that the intercepted conversations consisted of Yannotti seeking to collect a debt from an individual who was "backed up on his payments."³ Over objection, the court admitted this testimony after determining that DiDonato acquired his understanding of the conversation through personal experience with loansharking. See Fed.R.Evid. 701.

At the conclusion of the government's case, Yannotti moved for a judgment of acquittal on Counts One and Two pursuant to Federal Rule of Criminal Procedure 29(a), arguing that the government had presented insufficient evidence of his guilt. Further, he asserted that there was insufficient proof that he had committed any predicate acts within the five-year statute of limitations period. Yannotti claimed that most of the predicate acts alleged violent conduct taking place in 1987, 1992, and 1996, all of which fell well outside of the statute of limitations. See 18 U.S.C. § 3282(a) ("[N]o person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found . . . within five years next after such offense shall have been committed."). With respect to the loansharking conspiracy, which was alleged to have continued from 1993 to 2002, Yannotti argued that the evidence was insufficient to show either (1) that he participated in the conspiracy or (2) that the conspiracy continued into the limitations period. The district court denied his motion.

The jury convicted Yannotti of engaging in the RICO conspiracy described in Count Two but could not reach a verdict on the substantive RICO count described in Count One. On its verdict sheet, the jury indicated that the government had proved that Yannotti conspired to engage in...