United States v. Persico, S 84 Cr. 809 (JFK).

• Decision Date: 25 September 1986
• Docket Number: S 84 Cr. 809 (JFK).
• Citation: 646 F. Supp. 752
• Parties: UNITED STATES of America v. Carmine PERSICO, a/k/a "Junior," Gennaro Langella, a/k/a "Gerry Lang," Alphonse Persico, a/k/a "Little Allie Boy," John J. DeRoss, a/k/a "Jackie," Anthony Scarpati, a/k/a "Scappy," Andrew Russo, a/k/a "Andy Mush," Dominic Cataldo, a/k/a "Little Dom," and Hugh McIntosh, a/k/a "Apples," Defendants.
• Court: U.S. District Court — Southern District of New York

646 F. Supp. 752

UNITED STATES of America v. Carmine PERSICO, a/k/a "Junior," Gennaro Langella, a/k/a "Gerry Lang," Alphonse Persico, a/k/a "Little Allie Boy," John J. DeRoss, a/k/a "Jackie," Anthony Scarpati, a/k/a "Scappy," Andrew Russo, a/k/a "Andy Mush," Dominic Cataldo, a/k/a "Little Dom," and Hugh McIntosh, a/k/a "Apples," Defendants.

S 84 Cr. 809 (JFK).

United States District Court, S.D. New York.

September 25, 1986.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for the U.S.; Bruce A. Baird, Aaron R. Marcu, Frank H. Sherman, Asst. U.S. Attys., of counsel.

Frank Lopez, Brooklyn, N.Y., for defendant Carmine Persico.

David Breitbart, New York City, for defendant Gennaro Langella.

David DePetris, Stanley Meyer, New York City, for Alphonse Persico.

Dennis Peterson, Staten Island, N.Y., for defendant John J. DeRoss.

Jacob R. Evseroff, Brooklyn, N.Y., for defendant Anthony Scarpati.

George Santangelo, New York City, for defendant Andrew Russo.

Michael Hurwitz, New York City, for defendant Dominic Cataldo.

Susan Kellman, New York City, for defendant Hugh McIntosh.

KEENAN, District Judge:

Background

All defendants were convicted by jury verdict after an eight-month trial of RICO conspiracy violations, 18 U.S.C. § 1962(d) and all, save defendant Jack DeRoss, were convicted of substantive RICO violations, 18 U.S.C. § 1962(c). The jury also convicted on several other counts and acquitted on some other counts as well. To the degree necessary a factual recital and statement relating to the other convictions will be contained in the discussion below. The jury found that the defendants were members of, or associated with, the Colombo Family of La Cosa Nostra, a criminal enterprise that systematically engaged in a wide-range of criminal activities.

Several of the defendants move for an order setting aside the jury's verdict and entering judgments of acquittal, pursuant to Fed.R.Crim.P. 29(c), and for other relief. In the main, the motions raise arguments already advanced and rejected by this Court.

The defendant Dominic Cataldo joins in the motions applicable to him. Although defendant Gennaro Langella filed no post-trial motions, the Court assumes that he joins with those of his co-defendants.

All motions are denied for the reasons set forth below.

Discussion

Carmine Persico's Due Process Contentions

Carmine Persico claims that the Indictment is the product of Government misconduct, so outrageous as to have deprived Persico of his right to due process of law and to require dismissal of the prosecution. He also urges a hearing to be held to establish the alleged misconduct. His son, Alphonse Persico, joins in this motion.

This and other parts of the defense motion relate to the bribery of Richard Annicharico, a Special Agent of the Internal Revenue Service, in violation of 18 U.S.C. § 201(b)(3). Defendants Carmine Persico, Andrew Russo, Dominic Cataldo and Hugh McIntosh all pleaded guilty to some aspects of this offense in the United States District Court for the Eastern District of New York in 1981 and 1982. Here, Carmine Persico was found guilty of five specific racketeering acts relating to the Annicharico briberies. On August 11, 1981 he pleaded guilty in the Eastern District of New York to conspiracy to bribe a public official, Agent Annicharico, (18 U.S.C. § 371). Those charges are essentially the racketeering acts 18-22 which Carmine Persico was found guilty of and which are the subject of this portion of the motion. By pleading guilty in the Eastern District without preserving the issue, Persico waived his due process claim. United States v. Muench, 694 F.2d 28, 34 (2d Cir.1982), cert. denied, 461 U.S. 908, 103 S.Ct. 1881, 76 L.Ed.2d 811 (1983) (a guilty plea is a waiver of all non-jurisdictional defects), see also Franklin v. United States, 589 F.2d 192, 194, 195 (5th Cir.1979), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (1979).

Carmine Persico contends that he is entitled to an evidentiary hearing in connection with his alleged due process claim. The Court, over repeated prosecution objection, gave Persico broad latitude to prove governmental misconduct at trial.

Over objection Carmine Persico was permitted to call Joel Cohen, a former Strike Force prosecutor, as a witness. He subpoenaed Mr. Cohen. The Government maintains that Carmine Persico's counsel interviewed him and that Mr. Cohen appeared at the Courthouse on the appointed day. However, Mr. Cohen was discharged and not called to testify. The defense does not dispute those Government assertions.

Following is a summary recital of the evidence relating to the Annicharico situation.

In the summer of 1977, one Victor Puglisi asked Special Agent Annicharico to have Carmine Persico brought from the United States Penitentiary in Atlanta, where he was serving a sentence for hijacking, to the Metropolitan Correctional Center in New York so that his "colleagues," Andrew Russo, in particular, could meet with him. The Eastern District Organized Crime Task Force obtained a writ of habeas corpus ad testificandum, and Persico was produced in New York. Shortly thereafter, Puglisi passed a bribe to the agent to compensate him for the move. Later in the year, Carmine Persico was returned to Atlanta by the authorities. In December, 1977, Puglisi offered the agent another bribe. Again, Carmine Persico was brought to New York on a writ and again a payoff was made. In a recorded conversation with the agent on February 2, 1978 (GX 118), Carmine Persico confirmed that Victor Puglisi was acting on behalf of Mr. Persico and Andrew Russo in his dealings with the agent. In that conversation, Carmine Persico offered the agent $250,000 so Mr. Persico could get out of jail and told the agent that Puglisi was working for him. The evidence at trial supports the proposition that Carmine Persico was brought to New York because he and his subordinates wanted that to happen and paid for it to happen. The jury's verdict was proper under the circumstances. The defense contention that the Government invented the crimes and manipulated Carmine Persico into committing them was rejected by the jury and the Court sees nothing wrong with the jury's finding.

At the time in 1977 when the Eastern District Organized Crime Strike Force was investigating the Annicharico matter, part of it was taking place in the Strike Force offices. The prosecutor, Joel Cohen, filed with the District's Chief Judge, Jacob Mishler, a sealed affidavit setting forth the nature and progress of the investigation. A copy of that affidavit, dated February 3, 1978, accompanied the Government's Memorandum of Law on this motion. Mr. Cohen informed the Chief Judge about the writs and the facts surrounding their issuance. Rather than disciplining the prosecutors for misconduct, Judge Mishler permitted the investigation, including an aspect involving Persico's filing false statements with the court, to proceed.

Despite Mr. Cohen's appearance in this Courthouse during the trial of this Indictment pursuant to Carmine Persico's subpoena, Mr. Persico elected not to call him as a witness.

The Government urges in its memorandum on this motion on p. 19 and 25 that the defense failed to call Mr. Cohen because his "testimony would utterly decimate Persico's misconduct claim" and "it is inescapable that Persico sent Mr. Cohen home because his testimony would have unmasked Persico's alleged misconduct defense."

The Court will not speculate as to why the defense did not call Mr. Cohen. But the fact is that they had every opportunity to call him over Government objection. To reopen all this now would be a colossal waste of judicial time and a gross abuse of discretion by this Court.

On the facts of this case, United States v. Archer 486 F.2d 670 (2d Cir.1973); United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) and Greene v. United States, 454 F.2d 783 (9th Cir.1971) give no solace to the defense position.

Even were the writs, which brought Carmine Persico to New York, obtained improperly (which the Court does not find), the rulings in Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976), United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) and United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) would persuade the Court not to upset the conviction or order a hearing. Moreover, the decision in United States v. Caputo and Marino, 85 Cr. 0150 from the Eastern District of Pennsylvania is in no way controlling and is distinguishable from the facts here.

In partial support of his motion Carmine Persico submits an affidavit from an attorney, John Jacobs. Mr. Jacobs was a member of the Eastern District Organized Crime Strike Force at the time of the Annicharico investigation but he "had no direct responsibility in the Annicharico undercover IRS investigation." (Jacobs affidavit ¶ 4). The Jacobs affidavit states that, ¶ 7, in his "opinion ... the two writs of Habeas Corpus Ad Testificandum were a sham." The affidavit, in ¶ 10, contains an irrelevant and unwarranted bit of character assassination concerning a distinguished Federal judge and concludes in ¶ 12 with a bit of rumor mongering worthy of a second rate gossip columnist or a daytime soap opera as to how the instant indictment was prosecuted in the Southern District of New York, rather than the Eastern District of New York.

It should be noted that Mr. Jacobs on several occasions during the trial came to the courtroom and the Court observed him conferring with defense counsel during those visits. It is significant that Mr. Jacobs did not choose to come forward until after these convictions were obtained and that much of the information he claims to have, came into his possession nearly nine years ago and yet this is the first time he has come forward.

A cynic might also observe that Mr. Jacobs is presently representing Ralph Scopo in United States...