United States v. Fazio

• Decision Date: 22 October 2014
• Docket Number: 12–3874–cr.,12–3799–cr,Nos. 12–3786–cr,s. 12–3786–cr
• Citation: 770 F.3d 160
• Parties: UNITED STATES of America, Appellee, v. Anthony FAZIO, Sr., aka Sealed Defendant 1, John Fazio, Jr., aka Sealed Defendant 3, Anthony Fazio, Jr., aka Sealed Defendant 2, aka Anthony Fazio, Ernest Orgel Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

770 F.3d 160

UNITED STATES of America, Appellee

v.Anthony FAZIO, Sr., aka Sealed Defendant 1, John Fazio, Jr., aka Sealed Defendant 3, Anthony Fazio, Jr., aka Sealed Defendant 2, aka Anthony Fazio, Ernest Orgel Defendants–Appellants.

Nos. 12–3786–cr

12–3799–cr

12–3874–cr.

United States Court of Appeals, Second Circuit.

Argued: Sept. 20, 2013.

Decided: Oct. 22, 2014.

Richard Ware Levitt, Levitt & Kaizer, New York, NY, for Defendant–Appellant Anthony Fazio, Jr.

Marc Fernich, New York, NY, for Defendant–Appellant Anthony Fazio, Sr.

Ronald P. Fischetti, Phyllis A. Malgieri, Fischetti & Malgieri LLP, New York, NY, Barry A. Bohrer, Eli J. Mark, Schulte Roth & Zabel LLP, New York, N.Y. for Defendant–Appellant John Fazio, Jr.

Chi T. Steve Kwok (Peter M. Skinner, Brian R. Blais, Justin S. Weddle, on the

brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y. for Appellee.

Before: WALKER, LEVAL, WESLEY, Circuit Judges.

Opinion

JOHN M. WALKER, JR., Circuit Judge:

Anthony Fazio, Sr. (“Fazio Senior”), Anthony Fazio, Jr. (“Fazio Junior”), and John Fazio, Jr. (“John Fazio”), who were officers in Local 348 of the United Food and Commercial Workers International Union, demanded that business owners that employed Local 348 members make payments to the Fazios to ensure a good working relationship with the union. At trial, the government produced evidence from which the jury could conclude that the Fazios' demands for money were accompanied by threats of economic and physical harm. All three defendants were indicted for: (1) racketeering conspiracy in violation of 18 U.S.C. § 1962(d) ; (2) racketeering in violation of 18 U.S.C. § 1962(c) ; (3) extortion conspiracy in violation of the Hobbs Act, 18 U.S.C. § 1951 ; and (4) receiving unlawful labor payments in violation of 29 U.S.C. § 186(b)(1), d(2). Fazio Senior and John Fazio were also indicted for conspiracy to commit money laundering in violation of the Hobbs Act, 18 U.S.C. § 1956(h). Fazio Senior was additionally indicted for witness tampering in violation of 18 U.S.C. § 1512(b)(1), (2). After a jury trial in the United States District Court for the Southern District of New York (Forrest, J. ), each defendant was convicted of all of the crimes with which he was charged. The district court sentenced Fazio Senior, Fazio Junior, and John Fazio, respectively, to imprisonment terms of 151 months, 60 months, and 135 months.

On appeal, the Fazios challenge their convictions on a variety of grounds. In this opinion we address three errors appellants assert were made by the district court: (1) the ruling admitting evidence of defendants' ties to organized crime; (2) the denial of a requested jury charge that the “fear” element of extortion cannot be satisfied by a threat of loss of economic advantage to which the victim was not legally entitled; and (3) the dismissal during trial of a juror. For the reasons stated below, we find no error and affirm the judgment of the district court.

Defendants' remaining arguments are without merit.

DISCUSSION

I. Background

From at least some time in 1989, up through and including June 2011, the Fazios, who ran Local Union 348, participated in a scheme to enrich themselves by extorting payments from business owners whose employees were members of the local. At trial, witnesses testified that either before or shortly after they entered into a union contract with Local 348, one or more of the defendants would tell them that, yearly, and sometimes twice yearly, side payments to the Fazios would be required to ensure a good working relationship. Because of the Fazios' collusive relationship with the employers with which they were supposed to be negotiating at arm's length, Local 348 had a reputation for being a “sweetheart” union. However, the Fazios also cultivated a reputation that they and Local 348 were connected to organized crime. And the Fazios used implicit and explicit threats of economic and physical harm to extort the side payments.

Witnesses testified that they felt that they had no choice but to accede to the Fazios' demands for money. For example, one employer whose employees were members of Local 348, Leon Hofman, testified that when he declined John Fazio's demand for around $7,500 to $10,000 per year, John Fazio stated something to the effect of “don't screw around with me.” Hofman testified that he became worried about his and his family's safety and started making the payments. Another employer, Elliot Betesh, testified about an incident where people were blocking trucks from delivering merchandise to his warehouse. Betesh said that the group blocking the delivery trucks left a card with Fazio Senior's name on it. Betesh said that the blockade ended after he agreed to a union contract with Local 348 and a yearly side payment of $20,000 to Fazio Senior.

The government also introduced evidence that Local 348 and the Fazios had reputations for having ties to organized crime. For example, employer Samuel Singer testified that he believed that John Fazio was “connected to organized crime.” J.A. 239. Recorded phone calls between Mark Cohen, an owner of the retail chain Shoe Mania who did not testify at trial, and John Fazio (the “Shoe Mania calls”) also suggested Local 348's connection to organized crime. On these calls the two men discussed installing Local 348 at Cohen's stores. Before one phone call was picked up by John Fazio, but after the recording began, Cohen told his comptroller, Jimmy, why John Fazio can solve his labor issues: “Mafia, Jimmy, Mafioso.” On another call, Mark Cohen told John Fazio, “My attorney got your stuff whatever and the lawyer, the lawyer said to my attorney; yeah, ah, ah what's with your union, the union that ah you're trying to, ah, what ah, you know, M–O–B, Mafia union ...” Appellee's Br. 107; see J.A. 541. John Fazio responded, “That's what he said?” Cohen then said, “Yeah, something like that.” Fazio responded, “Yeah.” Id.

Each defendant called a single character witness and offered documentary records into evidence. After one day of deliberations, the jury found each defendant guilty of all counts in which he was charged.

II. Evidence of Defendants' Alleged Connection to the Mafia

Prior to trial, the government moved in limine for a ruling admitting testimony by victims that they believed that the Fazios were connected to organized crime. In response, Fazio Junior moved in the alternative either to preclude such evidence on basis that there was no showing that defendants were actually involved in organized crime or, if the evidence was admitted, for a severance. Fazio Junior also moved to exclude the recorded conversations between Mark Cohen, the owner of Shoe Mania, and John Fazio. The district court granted the government's motion to admit the proffered evidence of defendants' alleged ties to organized crime after concluding “that the state of mind of alleged victims of extortion is directly at issue in this case.” J.A. 188. And the district court held that severance was unwarranted because Fazio Junior was charged with conspiring with his father and cousin and the reputation of all three of having connections to the mafia was relevant to the guilt of each defendant. J.A. 189.

The district court also denied Fazio Junior's motion to exclude the Shoe Mania calls. The district court found that even though Cohen was not a victim of the alleged extortion, Cohen “was speaking directly to [the] reputation of the Fazios generally in connection with Local 348.” J.A. 192. In addition, the district court found that the Shoe Mania calls “follow a pattern similar to other alleged conspiratorial behavior and related acts ... [and] are therefore relevant.” J.A. 198. At trial, the district court denied reconsideration of the reputation evidence rulings.

On appeal, Defendants argue that admission of the reputation evidence denied them a fair trial. They contend that the evidence was not admissible because there was no proof that any of the defendants were in fact connected to the mafia. In the alternative, Fazio Junior argues that even if the organized crime evidence was properly admitted, he should have been granted a severance because the evidence unfairly prejudiced him.

A. Admissibility of evidence

We review a district court's rulings on the admissibility of trial evidence for abuse of discretion. United States v. Coplan, 703 F.3d 46, 80 (2d Cir.2012). “A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir.2008) (internal quotation marks, alterations and citations omitted).

The admissibility of the organized crime reputation evidence is a function of the nature of the government's required proof, which goes to the fear reasonably experienced by the victims, an element of extortion. Under the Hobbs Act, the government must prove that the defendant “obtain[ed] ... property from another ... induced by wrongful use of actual or threatened force, violence or fear,” 18 U.S.C. § 1951(b)(2). “[T]he defendant [must] knowingly and willfully create[ ] or instill[ ] fear, or use[ ] or exploit [ ] existing fear with the specific purpose of inducing another to part with property.” United States v. Coppola, 671 F.3d 220, 241 (2d Cir.2012). “Bad reputation is relevant to the fear element in a Hobbs Act conspiracy ‘since such a reputation frequently conveys a tacit threat of violence.’ ” United States v. Mulder, 273 F.3d 91, 103 (2d Cir.2001) (quoting United States v. Tropiano, 418 F.2d 1069, 1081 (2d Cir.1969) ).

Defendants argue that the reputation evidence at issue here is inadmissible absent some corroborative evidence that defendants were actually connected to organized crime or knowingly exploited a reputation for such a connection. Defendants'...