United States v. Bruno, Nos. 03-1349(L), -1351(CON) (Fed. 2nd Cir. 9/14/2004)
| Decision Date | 14 September 2004 |
| Docket Number | Nos. 03-1349(L), -1351(CON).,s. 03-1349(L), -1351(CON). |
| Parties | UNITED STATES OF AMERICA, Appellee, v. ANTHONY BRUNO, ANGELO CERASULO, JOHN IMBRIECO, Defendants, MARIO FORTUNATO and CARMINE POLITO, Defendants-Appellants, |
| Court | U.S. Court of Appeals — Second Circuit |
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v.
ANTHONY BRUNO, ANGELO CERASULO, JOHN IMBRIECO, Defendants,
MARIO FORTUNATO and CARMINE POLITO, Defendants-Appellants,
Appeals from judgments entered in the United States District Court for the Eastern District of New York (Glasser, J.), convicting defendants-appellants, following a jury trial, of: (i) racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); (ii) racketeering, in violation of 18 U.S.C. § 1962(c); (iii) murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1); conspiracy to defraud the United States by making false statements and obstructing justice, in violation of 18 U.S.C. § 371; (iv) making false statements, in violation of 18 U.S.C. § 1001(a)(2); and (v) obstruction of justice, in violation of 18 U.S.C. § 1503(a), (b)(3); and principally sentencing them to life imprisonment.
Reversed in part, vacated in part, and remanded.
DIARMUID WHITE, White & White, New York, NY (Brendan White, of counsel; Gerald J. McMahon, Esq., New York, NY, on the briefs) for Defendant-Appellant Carmine Polito.
PAUL SHECHTMAN, Stillman & Friedman, P.C., (Sara Beth Savage, on the briefs) New York, NY, for Defendant-Appellant Mario Fortunato.
DANIEL S. DORSKY, Special Assistant, United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, on the brief; Assistant United States Attorneys, David C. James, Paul Weinstein, and Todd Harrison, of counsel), for Appellee.
Before: MINER and KATZMANN, Circuit Judges, and TSOUCALAS, Judge.*
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MINER, Circuit Judge:
These appeals arise from the November 24, 1994 shootings of Genovese Crime Family associates Sabatino Lombardi and Michael D'Urso by John Imbrieco and Anthony Bruno while the victims were playing cards at a Genovese Crime Family social club. Although Lombardi was fatally wounded, D'Urso survived and subsequently became a cooperating witness for the Government. Bruno, Imbrieco, and the "getaway" driver, defendant Angelo Cerasulo, later pled guilty to various crimes and agreed to cooperate with the Government. The remaining participants in the November 1994 shootings — defendants-appellants Mario Fortunato and Carmine Polito — were subsequently tried for, and convicted of, violating various federal statutes relating to the Violent Crimes in Aid of Racketeering Act ("VCAR"), the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and obstruction of justice for their roles in planning these shootings and subsequently obstructing the federal investigation of the shootings by attempting to influence the testimony of two grand jury witnesses and lying to the FBI.
Of the several arguments raised by Polito and Fortunato, we find that the following have merit and decline to reach the others: (1) The RICO conspiracy, substantive RICO, and VCAR convictions (Counts I, II, and III) must be reversed for lack of legally sufficient evidence. In particular, the evidence was insufficient either to establish that Polito and Fortunato murdered Lombardi to "maintain or increase" positions in the Genovese Crime Family or to establish that the shootings of Lombardi and D'Urso were related to the activities of the Genovese Family criminal enterprise. In addition, the evidence was insufficient to establish a corrupt endeavor to influence the testimony of two grand jury witnesses. (2) Because of this latter deficiency, the convictions relating to obstruction of justice (VII and VIII) also must be reversed for lack of
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legally sufficient evidence. (3) The convictions relating to Cerasulo's false statements (Count V) must be reversed for lack of legally sufficient evidence under the Government's Pinkerton liability theory. (4) The convictions for false-statement conspiracy (included in Count IV) must be vacated because the District Court committed plain error in admitting the hearsay evidence supporting those convictions, in violation of the Confrontation Clause. (5) The convictions for conspiracy to obstruct justice (included in Count IV) must be reversed because the evidence was legally insufficient to support those convictions. (6) The convictions relating to Fortunato's false statements (Count VI) must be vacated due to spillover prejudice. And (7) the District Court improperly instructed the jury with respect to the court's authority to sentence cooperating witnesses in the absence of a § 5K1.1 letter from the Government.
Accordingly, for the reasons set forth below, we reverse the convictions under Counts I, II, III, V, VII, and VIII and for obstruction-of-justice conspiracy under Count IV; vacate the convictions for false-statement conspiracy under Count IV and the false-statements convictions under Count VI; and remand for a new trial consistent with this opinion.
Viewing the evidence in the light most favorable to the Government, see United States v. Wilkerson, 361 F.3d 717, 721 (2d Cir. 2004), the evidence presented at trial was as follows:
I. Appellants and Their Associates
Lombardi worked at a restaurant in Little Italy, where he became acquainted with several organized crime figures, including Joe Zito. Zito was a "soldier" in the Genovese Family and led a "crew" that reported to Rosario Gangi, a Genovese Family "capo." Lombardi and D'Urso became members of Zito's crew and participants in Zito's loansharking activities.
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Polito, a cousin of Lombardi, owned and operated a pizzeria in Queens. He was an inveterate gambler, who had borrowed money from Genovese Family loansharks, including Lombardi and D'Urso, and used the borrowed funds to pay his gambling debts. Zito would dispense money to Lombardi, who would loan some of it out and then pass the rest along to D'Urso, who then would loan it out to Polito, among others. Eventually, Salvatore Aparo, the acting capo to whom Zito reported after Gangi went to prison, began dispensing money directly to D'Urso for him to loan out. In addition to being a loansharking customer of Lombardi and D'Urso, Polito was "on record" with Zito because Zito had helped Polito with his gambling debts. By 1993, Polito owed hundreds of thousands of dollars to various loansharks, including approximately $70,000 to D'Urso.
Polito, D'Urso, and Lombardi regularly played cards at D'Urso's social club in Williamsburg, Brooklyn, and the three became close friends. Fortunato, another close friend of Polito, was one of the founders of Fortunato Brothers Bakery, a well-known Italian bakery in Williamsburg. Fortunato's involvement in Genovese Family affairs was largely limited to playing in high-stakes card games with Polito, Lombardi, and D'Urso at a social club located on Mulberry Street in Manhattan that was operated by Genovese Family soldier Tommy Cestaro. Lombardi had provided the necessary introductions to permit Polito and Fortunato to attend this social club. Historically, D'Urso had a poor personal relationship with Fortunato, a contemporary of D'Urso's father, and viewed Fortunato as arrogant. On several occasions, D'Urso had physically assaulted Fortunato over remarks that he had made that D'Urso found offensive. Nevertheless, D'Urso and Fortunato continued to see each other at card games frequented by Polito.
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II. Robbery of Chemical Bank
For almost forty years, Fortunato had been a friend of Alfred Driano, a seventy-two-year-old vault attendant at a Manhattan branch of Chemical Bank. Some time in 1993, Fortunato introduced Driano to Polito and told Polito that Driano worked at a bank. Driano was later approached by two men who sought his assistance in robbing the bank. Driano declined and then reported the incident to Polito and Fortunato, who told him that these men were "rough guys," that he was "in deep now" and could not back out, and that he would be paid for his assistance. Shortly thereafter, the same two men again unsuccessfully attempted to enlist Driano's assistance in robbing the bank by asking him if he would open the door to the vault area of the bank when the armored truck guards arrived with a delivery of money.
On December 21, 1993, the bank was robbed, apparently without Driano's assistance. Two men with guns and masks forced their way into the vault area, struck Driano in the back with a hard object, and stole $1.5 million. After the robbery, the police recovered from the getaway van approximately $537,000 of the stolen money and a business card from the Fortunato family's bakery. Polito received about $80,000-90,000 for his role in planning the robbery.
After the robbery, Driano complained that he had not been paid. To keep Driano quiet, Gangi told D'Urso to make sure that Polito and Fortunato paid Driano off. Afterwards, Gangi and a member of his crew physically assaulted Polito at the latter's pizzeria for Polito's failure to pay Driano. Fortunato also told Driano that Fortunato had been beaten for failing to advance Driano his share of the bank robbery money and that Fortunato had been given twenty-four hours to pay Driano. Fortunato complied by facilitating the payment of $10,000 to Driano by a third
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party. When Driano was subpoenaed several years later in connection with an investigation of the robbery, Fortunato told Driano to say only that he had not been involved.
In November 1995, Polito and other Genovese Family members and associates pled guilty to federal charges involving the Chemical Bank robbery, resulting in Polito spending several years in prison. Although the Government has made much of Fortunato's involvement in this robbery in order to establish that he was an associate of the Genovese Family, it is worth noting that Fortunato was never criminally charged with participating in the robbery.
III. Polito's Unsuccessful Attempts to Switch Crews
Most of the participants in...
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