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U.S. v. FORTUNATO

March 6, 2003

UNITED STATES OF AMERICA, PLAINTIFF, AGAINST MARIO FORTUNATO, DEFENDANT.


The opinion of the court was delivered by: I. Leo Glasser

MEMORANDUM AND ORDER

The defendant was convicted, following a trial by jury, of violating 18 U.S.C. § 1962(c) (Racketeering); 18 U.S.C. § 1962(d) (Racketeering Conspiracy); 18 U.S.C. § 1959(a)(1) (Murder in Aid of Racketeering); 18 U.S.C. § 1503 (False Statement and Obstruction of Justice Conspiracy); 18 U.S.C. § 1001(a)(2) (False Statement) and 18 U.S.C. § 1503(a)(b)(3) (Influencing Testimony of Witness Before the Grand Jury). He has renewed his motion for a judgment of acquittal on: Racketeering Act Four, charging him with endeavoring to obstruct and impede the due administration of justice by influencing the testimony of John Doe 2 before the grand jury, in violation of 18 U.S.C. § 1503(a); Count Four, charging him, in part, with corruptly endeavoring to obstruct and impede the due administration of justice in violation of 18 U.S.C. § 1503; Count Seven, charging him with corruptly endeavoring to obstruct and impede the due administration of justice by influencing the testimony of John Doe 1 before the grand jury in violation of 18 U.S.C. § 1503(a), (b)(3); and Count Eight, charging him with the same offense as in Count Seven except that John Doe 2 is substituted for John Doe 1. His motions for the same relief at the end of the government's case, and at the end of the entire case, were denied.

The basis for the motions aimed at the violations of § 1503 is that witness tampering must be prosecuted under 18 U.S.C. § 1512, which was not charged. He relies for his claimed entitlement for relief upon United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991) and United States v. Gabriel, 125 F.3d 89, 104 n. 12 (2d Cir. 1997).

The Counts of the indictment at which his motion are aimed, read as follows:

Count Seven

On or about and between October 19, 2001 and November 7, 2001, within the Eastern District of New York and elsewhere, the defendants Mario Fortunato and Carmine Polito, also known as "Carmine Pizza," together with others, knowingly, intentionally and corruptly endeavored to influence, obstruct and impede the due administration of justice, to wit: to influence the testimony of John Doe 1, whose identity is known to the grand jury, before the grand jury.
(Title 18, United States Code, Sections 1503(a), 1503(b)(3), 2 and 3551 et seq.)

Count Eight charges essentially the same offense, except for a variation in dates and John Doe 2 as the person endeavored to be influenced.

Racketeering Act Four mirrors Count Eight and the second object of Count Four charges the defendants with corruptly endeavoring to influence, obstruct and impede the due administration of justice in violation of 18 U.S.C. § 1503.

The selection of the jury and the trial commenced on January 13, 2003. On the 5th day of trial and after 10 witnesses had testified, a letter was received on behalf of defendant Fortunato advising that he will move to dismiss those Counts based upon Masterpol because he is charged with witness tampering under § 1503.

Discussion

18 U.S.C. § 1503 provides in relevant part:

(a) Whoever corruptly . . . endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished
18 U.S.C. § 1512(b)(1) provides in relevant part:
(b) Whoever knowingly . . . corruptly persuades another person . . . with intent to —
(1) influence . . . the testimony of any person in an official proceeding
In United States v. Masterpol, supra, the defendant was convicted of obstructing justice in violation of 18 U.S.C. § 1503 in that he urged two witnesses to recant their trial testimony and of making a false statement in violation of 18 U.S.C. § 1001. His pretrial motions to dismiss the charges were denied. On appeal, he argued that following the amendment of § 1503 in 1982, that statute no longer covered witness tampering and that he should have been charged, if at all, under 18 U.S.C. § 1512. The Court of Appeals agreed and held that "Congress affirmatively intended to remove witnesses entirely from the scope of § 1503" when it amended the statute and reversed the defendant's obstruction of justice conviction under § 1503.

In United States v. Gabriel, supra, at 104 n. 12, the Court wrote that "Although the sections are closely related, we have concluded that if the government seeks to prosecute a person for witness tampering, the government cannot use section 1503 but must instead use section 1512." Gabriel was, in fact, charged with § 1512 and the issue presented in Masterpol was not before the Court.

The government defends the indictment's charge pursuant to § 1503 by reading United States v. Schwarz, 283 F.3d 76, 109 (2d Cir. 2002) as implicitly disavowing Masterpol. In Schwarz, co-defendant Bruder, a New York City police officer was convicted following a jury trial of making false statements to federal investigators as part of a conspiracy to misdirect an investigation into ...


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