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United States v. Persico

decided: October 27, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
CARMINE PERSICO, A/K/A "SNAKE," A/K/A "JUNIOR," HUGH MCINTOSH, A/K/A "APPLES," GENNARO LANGELLA, A/K/A "JERRY LANGE," JOHN DEROSS, A/K/A "JACKIE," ANTHONY SCARPATI, A/K/A "SCAPPY," ALPHONSE PERSICO, A/K/A "LITTLE ALLIE BOY," ANDREW RUSSO, A/K/A "ANDY MUSH," AND DOMINIC CATALDO, A/K/A "LITTLE DOM," DEFENDANTS-APPELLANTS



Appeal from judgments of the United States District Court for the Southern District of New York (Keenan, J.) convicting appellants of various offenses arising from their participation in the affairs of the Colombo Family racketeering enterprise. Affirmed as to all appellants except that the substantive RICO convictions of McIntosh and Russo are reversed.

Newman, Miner and Altimari, Circuit Judges.

Author: Miner

MINER, Circuit Judge:

Defendants-appellants Carmine Persico, Hugh McIntosh, Gennaro Langella, John DeRoss, Anthony Scarpati, Alphonse Persico, Andrew Russo and Dominic Cataldo appeal from judgments entered in the United States District Court for the Southern District of New York (Keenan, J.), convicting them of various offenses arising from their participation in the affairs of the Colombo Family racketeering enterprise. All eight appellants were convicted of conspiracy to violated provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) (1982), and seven of the appellants were convicted of substantive RICO violations, id. § 1962(c). In addition, the majority of appellants were convicted of various substantive offenses that also were charged as predicate racketeering acts.

On appeal, appellants raise a plethora of claims, only a few of which require discussion. Russo and McIntosh contend that their convictions for substantive RICO violations and RICO conspiracy must be overturned on statute of limitations and double jeopardy grounds. Langella challenges the district court's decision to empanel an anonymous jury. Carmine Persico claims that the district court's sequestration decision were improper and he raises a due process challenge to the government's compensation arrangement with a key witness. Various appellants join in these claims, and all appellants challenge the admission of a co-conspirator's statements against them. Of these claims, the only ones that have merit are the statute of limitations claims advanced by Russo and McIntosh regarding their convictions under 18 U.S.C. § 1962(c). As a result, we affirm the judgments convicting all appellants, except that we reverse as to the section 1962(c) convictions of Russo and McIntosh.

I. BACKGROUND

The factual predicate for the convictions giving rise to this appeal has been recounted in numerous recent opinions, see United States v. Langella, 804 F.2d 185 (2d Cir. 1986); United States v. Russo, 801 F.2d 624 (2d Cir. 1986); United States v. Persico, 774 F.2d 30 (2d Cir. 1985); United States v. Persico, 646 F. Supp. 752 (S.D.N.Y. 1986); United States v. Persico, 621 F. Supp. 842 (S.D.N.Y.1985); United States v. Persico, 620 F. Supp. 836 (S.D.N.Y.), aff'd, 774 F.2d 30 (2d Cir. 1985); United States v. Persico, 520 F. Supp. 96 (E.D.N.Y. 1981), familiarity with which is assumed. A general outline of the schemes alleged is presented below; to the degree necessary, specific factual recitations relating to the claims meriting review on this appeal are included as part of the discussion of those specific claims.

Appellant and six co-defendants were charged, in a 51-count superseding indictment filed on April 4, 1985, with leading, managing and participating in the Colombo Family racketeering enterprise, a professional criminal organization that is one of the New York City constituent units of the American Mafia, by committing or agreeing to commit numerous crimes. Of the six co-defendants not represented in this appeal, five had there cases severed prior to or during trial, and one, Frank Falanga, who was found guilty by the jury, died prior to sentencing.

The government delineated the organizational structure of the Colombo Family as follows: Carmine Persico, the Boss of the Colombo Family, assisted by Gennaro Langella, the Underboss, and a Consiglieri, or adviser, led the Family. Alphonse Persico, Carmine's eldest son, also was a trusted adviser and an initiate member of the Family. Anthony Scarpati, John DeRoss and Andrew Russo were Capos, or captains, in the organization. Each Capo is a trusted officer of the Family who leads a crew of "soldiers," consisting of initiated members of the Family. The "soldiers," in turn, command crews of "associates." An "associate" is a criminal colleague who either is ineligible for, uninterested in, or awaiting formal induction into the Mafia. Dominic Cataldo was a soldier in the Family, and Hugh McIntosh and deceased co-defendant Frank Falanga were associates.

All eight appellants were charged with conspiracy to conduct and participate in the affairs of the Colombo Family enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). The enumerated predicate acts of racketeering included: extortion and labor bribery in the construction and restaurant industries; repeated bribes to an undercover Internal Revenue Service agent; bribery of federal prison officials; loan-sharking; and distributing large amounts of narcotics. Langella, DeRoss and Scarpati also were charged with conspiracy to participate in the Colombo Family's affairs through the collection of unlawful debts. 18 U.S.C. § 1962(d); see id. § 1962(c). In addition, all eight appellants were charged with the substantive crime of conducting and participating in the affairs of the Colombo Family enterprise through essentially the same pattern of racketeering activity described above, in violation of 18 U.S.C. § 1962(c).

Various appellants were charged with substantive crimes that formed the basis for the patterns of racketeering activity alleged in the RICO counts. Many other charges were dismissed prior to or during trial and are not recounted here. Carmine Persico and Langella were charged with conspiracy to extort money from concrete construction firms in the New York City area, in violation of the Hobbs Act, 18 U.S.C. § 1951 (1982), and Langella was charged with participating in the commission of ten substantive extortionate acts involving various concrete construction companies. See id.; id § (b)(2).

The government accused Langella and Carmine Persico of directed severed co-defendant Ralph Scopo, the president of the District Council of Cement and Concrete Workers Union, to extort cash payments from at least ten different concrete contractors. These extortions were part of a two-tier scheme formulated by four of the La Cosa Nostra crime families in the New York City area. Pursuant to this scheme, construction projects worth $2 million dollars or less fell within the jurisdiction of the Colombo Family; contractors doing such jobs paid the Colombo Family one percent of the gross contract price of every job in order to prevent labor strife or supply problems. Jobs worth more than $2 million dollars were controlled by a consortium comprised by the Colombo Family and three other New York City area crime families. See generally Langella, 804 F.2d at 187-88.

John DeRoss, a vice president of Local 100 of the Hotel Employees and Restaurant Employees International Union, was charged with soliciting and receiving unlawful payments from, or in connection with, five Manhattan restaurants, in violation of 2 U.S.C. § 186(b)(1) and 18 U.S.C. § 2 (1982). The government alleged that DeRoss participated in a scheme in which bribes were solicited and received from restaurant owners so that the owners would be able to violate the terms of their agreements with Local 100 without interference from the union. The government contended that in one instance a bribe was solicited and received as compensation for allowing a restaurant owner to retain the lease for his restaurant.

Carmine Persico and Alphonse Persico were charged with paying bribes and gratitudes to a federal prison official, in violation of 18 U.S.C. §§ 201(b)(1), 201(b)(3) & 201(f) (1982). In this count, the government contended that the Persicos paid the bribes and gratitudes to a prison official at the Federal Correctional Institution in Ashland, Kentucky, in order to obtain, or on account of, various unwanted privileges the official sought or obtained for Carmine Persico, who then was an inmate at that correctional facility. The Persicos and Langella also were accused of offering and paying a $20,000.00 bribe to a federal official in exchange for Carmine Persico's transfer from one federal prison to another, in violation of 18 U.S.C. § 201(b)(3).

Langella, Scarpati and Russo were charged with conspiracy to make extortionate extensions of credit, see 18 U.S.C. §§ 891, 892, and conspiracy to collect extension of credit using extortionate means, see id. §§ 891, 894. The government's theory was that these appellants and others employed the Colombo Family as a vehicle for lending money at exorbitant rates of interest, and collecting loansharking debts, through the threatened use of force and violence if the loans were not repaid. Langella and Scarpati also were accused of specific collections of credit using extortionate means, in violation of 18 U.S.C. § 894.

Numerous other acts of racketeering included as predicate acts in the RICO counts were not charged as substantive offenses. Four appellants, including McIntosh and Russo, made pretrial motions to dismiss from the RICO counts, on double jeopardy grounds, the predicate acts involving the repeated bribery of an undercover IRS agent. These acts, which were not charged as substantive offenses, had been the subject of an investigation and prosecution in the Eastern District of New York, which resulted in guilty pleas by the four appellants to a few of the charges against them. The district court denied the motion, United States v. Persico, 620 F. Supp. 836 (S.D.N.Y. 1985), and, on an interlocutory appeal, we affirmed, United States v. Persico, 774 F.2d 30 (2d Cir. 1985).

Trial commenced on October 15, 1985, and, after an eight-month trial, the jury returned guilty verdicts against all eight appellants on the RICO conspiracy count. All appellants save DeRoss also were convicted on the the substantive RICO count. Carmine Persico and Langella were convicted of extortionate conspiracy in the concrete construction industry, and Langella was convicted of participation in the extortion of money from specific construction firms. DeRoss was acquitted of the substantive Hobbs Act counts concerning the restaurant industry. Carmine and Alphonse Persico were convicted of paying an illegal gratuity to a federal prison official, and the Persicos and Langella also were convicted of offering to pay a bribe to a federal official. Guilty verdicts were returned against Langella and Scarpati both for conspiracy to make extortionate extensions of credit using extortionate means; Russo was acquitted of those conspiracy counts. Langella and Scarpati also were convicted of making and collecting various specific extortionate extensions of credit.

This appeal followed the imposition of sentences in the district court.

II. DISCUSSION

A. Double Jeopardy

The predicate acts that underlie McIntosh's and Russo's RICO convictions also were the subject of a prior investigation and prosecution in the Eastern District of New York that resulted in guilty pleas by McIntosh and Russo to a few of those acts. The Eastern District investigation revealed that Russo, McIntosh and others had offered and paid numerous bribes to IRS Agent Annicharico, who was posing as a corrupt law enforcement official, in what has come to be known as the Annicharico bribe scheme. Pursuant to that scheme, Russo, McIntosh and Carmine Persico bribed Annicharico to prevent the commencement of federal criminal prosecution of Charles Panarella and Russo, and to influence the disposition of Carmine Persico's application to vacate his sentence. McIntosh and Carmine Persico bribed Annicharico to prevent Persico's transfer from a federal prison in Manhattan. Russo and Cataldo bribed the agent to prevent the commencement of a federal criminal prosecution against Cataldo. Russo also bribed Annicharico to prevent the commencement of a state perjury prosecution and to eliminate back tax liability for an associate and a corporate entity.

McIntosh and Russo were indicted in the Eastern District of New York for their roles in the Annicharico bribe scheme. On April 26, 1982, Russo pleaded guilty to conspiracy to bribe a public official, see 18 U.S.C. § 371 (1982), and obstruction of justice, id. § 1505. On November 1, 1982, after four days of trial, McIntosh pleaded guilty to bribery of a public official. Id. § 201(b). Subsequent to the guilty pleas, several other charges against McIntosh and Russo were dismissed on the government's motion.

After the filing of the superseding indictment in the instant case, Russo and McIntosh moved pre-trial to have the charges against them dismissed, claiming that the RICO charges predicated on acts relating to the Annicharico bribe scheme were barred by their guilty pleas in the Eastern District prosecution.*fn1 The district court rejected their pre-trial double jeopardy claims, and we affirmed the district court's judgment on interlocutory appeal. See United States v. Persico, 620 F. Supp. 836 (S.D.N.Y.), aff'd, 774 F.2d 30 (2d Cir. 1985). McIntosh's and Russo's attempts to raise a double jeopardy challenge to their convictions after trial also were rejected by the district court. See United States v. Persico, 646 F. Supp. 752, 759-60 (S.D.N.Y. 1986). Subsequent motions to vacate their Eastern District criminal convictions, see 28 U.S.C. § 2255 (1982), were rejected in the district court and on appeal. See United States v. Russo, 801 F.2d 624 (2d Cir. 1986). On this appeal, Russo and McIntosh again contend that the double jeopardy clause bars their RICO convictions. We disagree.

The double jeopardy clause of the fifth amendment declares: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . ." U.S. Const. amend. V. The double jeopardy clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. ...


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