US v. Scarfo, Crim. A. No. 88-00003-1-19.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Citation: 711 F. Supp. 1315
• Docket Number: Crim. A. No. 88-00003-1-19.
• Parties: UNITED STATES of America v. Nicodemo SCARFO, et al.
• Decision Date: 20 April 1989

711 F. Supp. 1315

UNITED STATES of America v. Nicodemo SCARFO, et al.

Crim. A. No. 88-00003-1-19.

United States District Court, E.D. Pennsylvania.

April 20, 1989.

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Albert J. Wicks, Louis R. Pichini, Asst. Attys. in Charge; David E. Fritchey, Arnold Gordon, Joseph Peters, Organized Crime and Racketeering Section, Philadelphia Strike Force, Philadelphia, Pa., for plaintiff.

Robert F. Simone, Philadelphia, Pa., for Nicodemo Scarfo.

Oscar B. Goodman, Las Vegas, Nev., for Philip Leonetti.

Edwin J. Jacobs, Jr., Atlantic City, N.J., for Salvatore Merlino.

Nicholas J. Nastasi, Philadelphia, Pa., for Joseph Ciancaglini.

Robert E. Madden, Philadelphia, Pa., for Francis Iannarella, Jr.

Edward Reif, Philadelphia, Pa., for Lawrence Merlino.

Louis Theodore Savino, Jr., Philadelphia, Pa., for Charles Iannece.

Hope C. Lefeber, Philadelphia, Pa., for Salvatore Wayne Grande.

Steve LaCheen, Philadelphia, Pa., for Joseph Pungitore.

Donald C. Marino, Philadelphia, Pa., for Phillip Narducci.

Joseph C. Santaguida, Philadelphia, Pa., for Frank Narducci, Jr.

Christopher G. Furlong, Broomall, Pa., for Salvatore Scafidi.

Michael W. Pinsky, Westmont, N.J., for Ralph Staino.

Willis Berry, Jr., Philadelphia, Pa., for Joseph Grande.

Stephen P. Patrizio, Philadelphia, Pa., for Nicholas Virgilio.

Joseph P. Capone, Marlton, N.J., for Anthony Pungitore, Jr.

MEMORANDUM AND ORDER

VAN ANTWERPEN, District Judge.

In the instant matter, a jury convicted defendant Nicodemo Scarfo and sixteen of his associates of various crimes. The indictment under which defendants were found guilty includes seven counts. Counts I and II respectively charge RICO conspiracy and substantive violations, 18 U.S.C. § 1962(c), (d). They identify Scarfo and sixteen other defendants as members of an enterprise known as La Cosa Nostra, the LCN, the Mafia, the mob, this thing of ours, the Bruno family and the Scarfo family. The indictment alleges that a succession of bosses ran the enterprise, and that Nicodemo Scarfo was its most recent boss. The underboss, most recently Salvatore Merlino and then Philip Leonetti, worked directly below the boss. The enterprise also had an advisor, known as a "consig", and leaders of regimes known as "capos". Soldiers, the most inferior members of the Mafia hierarchy, comprised the regimes.

The purpose of the enterprise was to "control, manage, finance, supervise, participate in, and set policy concerning the making of money through illegal means." In counts I and II, the indictment charges that the enterprise conducted its affairs through a pattern of racketeering activity which included thirty-nine acts of murder, attempted murder, conspiracy to commit murder, extortion, collection of credit by extortion, illegal lotteries (also charged in count III), illegal sports bookmaking (also charged in count IV), conspiracy to distribute and distribution of controlled substances (also charged in counts V, VI, and VII). Counts I and II also charge five collections of unlawful debt. The Mafia carried out these activities primarily in the Philadelphia and Southern New Jersey areas.

Two of Scarfo's associates, Thomas DelGiorno and Nicholas Caramandi, pleaded guilty and testified as government witnesses. They chose to participate with the government because their lives allegedly had been threatened. In light of the circumstances of this case, all parties agreed to an anonymous jury. In addition, the Court granted the government's motion to sequester the jury.

The trial commenced on September 28, 1988 and concluded on November 17, 1988. After deliberating for a few days, the jury convicted all the defendants on all counts.¹ As a result of those convictions, the defendants filed several posttrial motions. The Court provided defendants with generous extensions of time in which to brief their motions. On March 23, 1989, the Court held oral argument on the motions. We will now address the merits of the motions.

Evidentiary Rulings

Defendant Charles Iannece argues that the Court erred in denying his motion to suppress the fruits of the search and seizure effected in Lake Harmony, Pennsylvania on October 29, 1987. Iannece argues that the introduction of evidence of his flight without additional limiting instructions prejudiced him and entitles him to a new trial. He suggests that the flight evidence was admissible only as to one predicate act, the Rouse Hobbs Act Extortion, and that the Court should have instructed the jury to consider that evidence only with regard to that act. Iannece also argues that under Fed.R.Evid. 404(b)² and 403³, the Court should not have admitted evidence of the guns seized from Iannece because Agent Warner told the jury that one of the guns was stolen; thus, defendant argues, the jury could have concluded that Iannece was responsible for stealing the gun.

According to the testimony of FBI Special Agent Warner, on October 29, 1987 Agent Warner arrested Iannece in Lake Harmony Pennsylvania. (Tr. 11/8/88 at 33). Pursuant to an executed consent to search form, Agent Warner searched the residence and recovered the following: four sets of identification in the name of Donald Casalaro, including a driver's license with Iannece's picture on it; a birth certificate and Social Security card in the name of Thomas Joseph Pecca; two handguns, one of which was reported stolen in Washington, D.C. in 1977; and numerous rounds of hollow point ammunition. (Tr. 11/8/88 at 33-38).

Near the conclusion of Agent Warner's testimony, Stephen LaCheen, attorney for Joseph Pungitore, Jr., argued at sidebar that the possession of the guns were 404(b) material, irrelevant to the issue of flight and prejudicial. (Tr. 11/8/88 at 40-41). After a short colloquy on the issue, the Court concluded that admission of the evidence concerning the guns was not prejudicial and was relevant. (Tr. 11/8/88 at 43). No defense attorney argued that the Court should exclude evidence concerning the stolen gun because the jury would conclude that Iannece was responsible for stealing the gun. On behalf of Iannece, Mr. Savino argued only that the Court should not admit the flight and related evidence because Iannece was incarcerated at the time of the instant RICO indictment and the evidence was unrelated to any charges in the indictment. We find that the Court properly admitted the evidence.

Flight is viewed in the law of evidence as admission by conduct which expresses consciousness of guilt. E. Cleary, McCormick on the Law of Evidence § 271 at 655 (2d ed. 1972); See also United States v. Miles, 468 F.2d 482, 489 (3d Cir.1972) (flight admissible as circumstantial evidence of guilt to be considered with other facts of the case). Its probative value depends upon whether there is sufficient evidence to establish the following four inferences: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to the actual guilt of the crime charged. United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978). Defendant argues that the last two elements have not been shown because Iannece was incarcerated a the time of the RICO indictment. For flight evidence to be admissible, however, it is not necessary that an actual indictment trigger flight; knowledge of the cooperation of a codefendant, see United States v. Tille, 729 F.2d 615, 622 (9th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984), or reason to believe that one is sought for commission of crimes, see United States v. Eggleton, 799 F.2d 378, 381 (8th Cir.1986), is also sufficient to trigger flight. In the instant matter, the evidence suggested that Iannece became a fugitive before he was indicted on any charges, and after learning that Nicholas Caramandi began cooperating with officials. (Tr. 10/29/88 at 126). The potential damage Caramandi's cooperation could create was not limited to the Rouse extortion, but extended to many of the predicate acts included in the instant RICO indictment. Thus, because Iannece's knowledge of the Caramandi cooperation could have triggered his flight, the court properly admitted the flight evidence. Furthermore, defendants never requested a more specific limiting instruction and did not object⁴ to the Court's instruction on flight.⁵

Iannece also argues that under Fed. R.Evid. 404(b), the Court should not have admitted evidence of the guns and ammunition. With regard to the stolen gun, Iannece argues that the jury could have prejudiced Iannece by concluding that he was involved in the theft. Iannece suggests that the Court should have performed a balancing test under Rule 403 and concluded that the probative value was outweighed by the danger of unfair prejudice.

Defendant's argument is not only speculative, but even if the jury would have concluded that Iannece was involved in the theft, this "other crime" pales in the face of substantial evidence concerning defendant's involvement with several murders and shakedowns. After hearing the argument of Mr. LaCheen, and in finding that the gun evidence was relevant to flight and admissible, the Court implicitly balanced the prejudice with the relevance and found the probative value outweighed the potential prejudice. Mr. LaCheen argued that admitting this evidence was "like putting ink in milk," to which the Court responded, "I don't think we have that type of situation here.... I think it's relevant that he has guns with him. I think it's part of the flight." (Tr. 11/8/88 at 42-43). Especially given the general nature of the objection,⁶ it was not necessary that the Court more explicitly perform the Rule 403 balancing test. See United States v. Lebovitz, 669 F.2d 894, 901 (3d Cir.) (w...