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United States v. Cosentino

decided: April 6, 1988.

UNITED STATES OF AMERICA, APPELLEE,
v.
LOUIS COSENTINO, DEFENDANT-APPELLANT



Appeal from a judgment of conviction entered on a guilty verdict by the United States District Court for the Southern District of New York, Kram, J. Defendant Cosentino, convicted of extortion and mail fraud, argues that the district court erred in admitting witness cooperation agreements concluded between the government and two witnesses who testified against him, where the entire agreements were admitted during the government's direct examination of the witnesses.

Meskill, Circuit Judge.

Author: Meskill

MESKILL, Circuit Judge:

This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, Kram, J., following a jury trial. Defendant-appellant Louis Cosentino was convicted of extortion in violation of 18 U.S.C. § 1951 (1982) and use of the mails to facilitate bribery in violation of 18 U.S.C. §§ 2, 1341 (1982). Two other counts were dropped prior to trial. Cosentino challenges the admission of witness cooperation agreements during direct testimony of government witnesses and claims that certain questions and comments by the prosecutor constituted prejudicial misconduct. For reasons that follow, we affirm.

BACKGROUND

Defendant-appellant Cosentino was a Project Superintendent for the New York City Housing Authority. As a superintendent, he had limited authority to purchase materials not available through the Housing Authority by placing "certificate for payment" orders with private vendors. Although Authority rules prohibited superintendents from placing more than $500 in such orders with any single vendor, Cosentino allegedly evaded this limitation by splitting orders among multiple companies owned by each vendor. He allegedly employed the same stratagem to circumvent another Authority rule that proscribed placement of more than one order with any single vendor in any thirty day period. According to the government, Cosentino solicited and received kickbacks from the vendors with whom he placed certificate for payment orders.

At trial, the government's case rested almost exclusively on the testimony of Alan Rappaport and Irving Eisenberg, two vendors who had dealt with Cosentino. They testified about the kickback scheme, explaining that Authority superintendents in general and Cosentino in particular placed orders only with vendors who kicked back a percentage of each order to the superintendent. There was also testimony that Cosentino received a $1,000 loan that he "worked off" by placing $10,000 worth of certificate for payment orders without demanding his usual ten percent kickback.

Cosentino took the stand on his own behalf to explain that he had split orders only in order to obtain necessary supplies that could not readily be procured through the Authority. He had evaded the rules, he said, to provide better service to the projects under his supervision. He also explained that he had paid the loan back out of his own pocket and emphatically denied soliciting or accepting bribes.

Because the case against Cosentino depended so heavily on the testimony of Rappaport and Eisenberg, their credibility was the central battleground of the trial. As participants in the kickback scheme who had agreed to testify in return for guilty pleas on reduced charges, they were especially vulnerable to impeachment. As a result, both the prosecuting Assistant United States Attorney (AUSA) and Cosentino's counsel highlighted credibility issues in their respective opening statements to the jury.

In opening, the prosecutor outlined the case against Cosentino, alluding specifically to the witnesses' background and cooperation agreements as follows:

I will tell you now about Rappaport and Eisenberg, the two vendors you will hear testify in this trial. They were not innocent victims. They acknowledge their participation in corrupt and criminal activity. They pleaded guilty to felony charges and have been sentenced, but before they pled guilty they entered into a cooperation agreement with the U.S. Attorney's Office, an agreement to [sic] which the U.S. Attorney's office agreed to accept their pleas and in return they agreed to testify.

Remember, people who engage in conspiracy don't act in the open, and, as the evidence in this case will show, they tried not to keep records of their dealings. They acted in secret.

So for us to be able to show you what happened at Highbridge Houses [where Cosentino was superintendent], it's necessary that we bring people right from out of the muck to testify before you today.

Because Rappaport and Eisenberg participated in corrupt activities and because they have an agreement with the government, the government asks you to scrutinize their testimony very carefully. You may not like a lot of the things they have done, but, remember, they are not on trial here today. Only Louis Cosentino is on trial, so when Alan Rappaport and Irving Eisenberg ...


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