USA v. Caracappa
| Decision Date | 23 July 2010 |
| Docket Number | Docket Nos. 09-1177-cr, 09-3115-cr. |
| Citation | 614 F.3d 30 |
| Parties | UNITED STATES of America, Appellee, v. Stephen CARACAPPA, Louis Eppolito, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
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Stephen E. Frank, Evan M. Norris, Assistant United States Attorneys, Brooklyn, New York (Benton J. Campbell, United States Attorney for the Eastern District of New York, David C. James, John David Buretta, Assistant United States Attorneys, Brooklyn, NY, on the brief), for Appellee.
Daniel Nobel, New York, NY, for Defendant-Appellant Caracappa.
Joseph A. Bondy, New York, NY, for Defendant-Appellant Eppolito.
Before: KEARSE, SACK, and WESLEY, Circuit Judges.
Defendants Stephen Caracappa and Louis Eppolito appeal from final judgments entered in the United States District Court for the Eastern District of New York after a jury trial before Jack B. Weinstein, Judge, convicting both defendants of racketeering conspiracy, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and distribution of and conspiracy to distribute narcotics, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and convicting Eppolito of money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B). In finding Caracappa and Eppolito guilty of RICO conspiracy, the jury found that they had committed numerous predicate acts of racketeering activity, including many direct, accessorial, or conspiratorial acts of murder, kidnaping, and tampering with or retaliating against witnesses. Caracappa was sentenced principally to imprisonment for life plus 80 years; Eppolito was sentenced principally to imprisonment for life plus 100 years. On appeal, Caracappa contends principally that he was deprived of a fair trial because of the admission of evidence of an out-of-court statement by the government's key witness and because of improper remarks by the government in summation; he also challenges, inter alia, the sufficiency of the evidence to support his convictions on the narcotics counts, and he contends that the sentence imposed on him on those counts is excessive. Eppolito contends principally that he was denied effective assistance of counsel by reason of his attorney's failures to communicate with him, to investigate and call favorable witnesses, and to inform him of his right to testify at trial. Finding no merit in defendants' contentions, we affirm the judgments of conviction.
This matter was previously before this Court in United States v. Eppolito, 543 F.3d 25 (2d Cir.2008) (“ Eppolito II ”), rev'g in part 436 F.Supp.2d 532 (E.D.N.Y.2006) (“ Eppolito I ”), cert. denied, --- U.S. ----, 129 S.Ct. 1027, 173 L.Ed.2d 313 (2009), in which we reversed the district court's statute-of-limitations-based dismissal of defendants' racketeering conspiracy convictions. The events leading to the prosecution are recounted in detail in Eppolito II, familiarity with which is assumed. We summarize below, in the light most favorable to the government and in accordance with the jury's verdicts, the evidence most pertinent to the present appeals.
Caracappa and Eppolito are former police detectives who were employed by the New York City Police Department (“NYPD”) until the early 1990s. In 1986-1993, while so employed, they were also a partnership employed by Anthony Casso, the underboss, i.e., second in command, of the Lucchese Crime Family-one of the five Organized Crime Families in the New York City area. The government's key witness at trial was Burton Kaplan, who was a former associate of the Lucchese Crime Family, a close friend of Casso, and the main intermediary between Casso and Caracappa/Eppolito. Kaplan testified to the following events.
Caracappa/Eppolito had gained the trust of Kaplan in early 1986 by helping to commit a murder for him. Kaplan suspected that Israel Greenwald, a collaborator in one of Kaplan's own criminal schemes, was about to become an informant. Caracappa/Eppolito determined Greenwald's whereabouts, followed him on a highway, and used flashing lights to cause him to pull over; telling Greenwald they needed to take him to the police station for a lineup in a hit-and-run case, they instead took him to another location where he was shot and killed. For their efforts, Caracappa and Eppolito were paid more than $16,000.
In mid-1986, there was an unsuccessful attempt on the life of Casso in NYPD's 63rd Precinct. Eppolito was assigned to that Precinct, and Caracappa was a member of a task force whose members included local detectives and agents of the Federal Bureau of Investigation. Kaplan recommended Caracappa and Eppolito-without disclosing their names-to Casso as a possible source of information on Casso's attackers. (Casso learned defendants' names in 1992, when Eppolito published his autobiography entitled Mafia Cop and included pictures of himself and Caracappa.) In response to the ensuing request, Caracappa/Eppolito gave Kaplan a packet of police reports that included a photograph of Jimmy Hydell, an associate of the Gambino Crime Family, and the information that Hydell was one of the men involved in the attempt on Casso's life. After Kaplan described the methods Caracappa/Eppolito had used with Greenwald, Casso hired Caracappa and Eppolito to kidnap Hydell. Caracappa and Eppolito themselves were not to kill Hydell, however, but only to deliver him to Casso so that Casso could extract information from him and then kill him. The Hydell mission was successfully completed, and Caracappa/Eppolito were paid nearly $24,000. Thereafter, at Eppolito's request, Casso placed Caracappa/Eppolito on retainer at the rate of $4,000 per month in exchange for their using their law-enforcement positions to collect all the information they could about investigations on any of the five Organized Crime Families, including the identities of informants, the locations of wiretaps, and any imminent arrests, and passing that information to Kaplan for Casso. Caracappa and Eppolito were to be paid extra for “murder contracts.” One such contract-earning Caracappa/Eppolito $70,000-was for the 1990 murder of Edward “Eddie” Lino, whom Hydell had identified in 1986 as one of the three Gambino Crime Family members who ordered the attempt on Casso's life.
The retainer agreement required Caracappa and Eppolito to work exclusively for Casso and not deal with members of other crime families. When Caracappa/Eppolito had information about other families, they gave it to Kaplan, who passed it on to Casso. Casso relayed the information to those families.
When Caracappa/Eppolito informed Kaplan of persons giving, or believed to be giving, information to law enforcement authorities about Casso or the Lucchese Family, Casso had the informants killed. For example, soon after Caracappa and Eppolito were placed on retainer, Casso asked Kaplan to have them find out whether John “Otto” Heidel, a Lucchese Crime Family associate, was cooperating with the authorities. Caracappa/Eppolito determined that Heidel was cooperating and they passed that information to Casso through Kaplan. Casso had Heidel killed. Heidel had in fact been cooperating with the authorities, secretly recording incriminating conversations. Eppolito, while officially and ostensibly investigating Heidel's murder, removed the incriminating audio tapes from Heidel's apartment and gave them to Kaplan to give to Casso.
Casso similarly suspected Lucchese Crime Family member Anthony Dilapi, who was on parole, of having become a government informant. Casso summoned Dilapi to a meeting, but Dilapi instead fled New York. Casso had Kaplan ask Caracappa to determine Dilapi's whereabouts. Caracappa, through Dilapi's parole officer, located Dilapi in California. Casso had him killed. On another occasion, Eppolito informed Kaplan of an impending indictment in which Lucchese Crime Family capo Bruno Facciola would be named as an unindicted co-conspirator rather than a defendant, leading Eppolito to infer that Facciola was a government cooperator. Casso had Facciola killed. Kaplan testified that Eppolito said he liked doing business with Kaplan and Casso because when Eppolito provided Casso with information, “people got taken care of that deserved it ....” Eppolito II, 543 F.3d at 31 (internal quotation marks omitted).
In May 1990, Caracappa/Eppolito informed Kaplan that Casso and Lucchese Crime Family boss Victor Amuso, among others, were about to be arrested. Kaplan alerted Amuso, who alerted Casso; by the next day, both Amuso and Casso had fled. While Casso was a fugitive, he maintained contact with Kaplan, who continued to relay to him sensitive law enforcement information received from Caracappa/Eppolito and to deliver $4,000 a month from Casso to Caracappa/Eppolito. Eppolito retired from NYPD in early 1990, and Caracappa retired from NYPD in 1992; they remained on retainer until Caracappa retired.
After retiring from NYPD, Eppolito moved to Las Vegas, where he started a business writing screenplays; Caracappa, who also eventually moved to Las Vegas, was a vice president of Eppolito's film company. In that business, Eppolito would agree to write a screenplay for anyone-including members of organized crime or drug dealers-who gave him $75,000 in cash; and Eppolito would send the investor 50 percent of whatever amount was received from the screenplay's sale. See Eppolito II, 543 F.3d at 36-39, 43-44. Eppolito told Stephen Corso, a government informant, that many such investments were made by members of the Gambino Crime Family. See, e.g., id. at 54.
Corso had been assisting in a lengthy government investigation in Las Vegas that did not initially involve Caracappa or Eppolito. In the Fall of 2004, however, members of the Gambino Crime Family and the Bonanno Crime Family...
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Table of Cases
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