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April 17, 2003


The opinion of the court was delivered by: Butch Leisure, United States District Judge.


Defendant in this case, George Lombardozzi, is charged with conspiring to make and making an extortionate extension of credit under 18 U.S.C. § 892, and conspiring to use and using extortionate means to collect an extension of credit under 18 U.S.C. § 894. The government moves in limine for the admission at trial of the following evidence: (I) the testimony of the victim concerning his understanding that defendant is associated with organized crime; (2) the testimony of Kenneth McCabe as an expert witness regarding organized crime; and (3) statements from the plea allocution of Frank Isoldi, an alleged co-conspirator, to prove the existence of a conspiracy. For the following reasons, the government's motion is granted with some limitations on the expert testimony.

A brief recitation of the factual allegations will put these evidentiary issues in context Lombardozzi is allegedly a member of an organized crime family. Frank Isoldi, a former defendant who has pleaded guilty to one overlapping count, is an alleged associate of Lombardozzi. According to the Indictment, Lombardozzi and Isoldi made an extortionate extension of credit to Henry Leung*fn1 and later used extortionate means, namely threatening physical harm, to collect the extension of credit.

I. Leung's Testimony Regarding Lombardozzi's Ties to Organized Crime is Admissible

The first application is directed to the testimony of Henry Leung, the victim in this case. According to the government, if permitted by the Court, Leung will testify that at the time he first borrowed money from Lombardozzi and Lombardozzi's alleged coconspirator, Frank Isoldi, and through the entire life of the loan, he understood that Lombardozzi and Isoldi were associated with organized crime. Such testimony in this type of case is entirely appropriate.

To prove the elements of 18 U.S.C. § 892, the government must show, inter alia, that the debtor understood "delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person." 18 U.S.C. § 891 (6) (defining extortionate extension of credit). Therefore, Leung's state of mind is essential to the government's case. See United States v. Natale, 526 F.2d 1160, 1168 n. 10 (2d Cir. 1975) (stating that "the state of mind of the victim would appear an essential element of [18 U.S.C. § 892] to be proved"). Furthermore, the statute states that a court may allow evidence that

[a]t the time the extension of credit was made, the debtor reasonably believed that either (A) one or more extensions of credit by the creditor had been collected or attempted to be collected by extortionate means, or the nonrepayment thereof had been punished by extortionate means; or (B) the creditor had a reputation for the use of extortionate means to collect extensions of credit or to punish the nonrepayment thereof.
18 U.S.C. § 892 (b)(3). Therefore, as the Second Circuit has recognized, "[e]vidence that the debtor believed the loanshark was connected to organized crime is admissible to show the debtor's belief that the loanshark would use, or had a reputation for using, extortionate means to collect extensions of credit." United States v. Gigante, 729 F.2d 78, 83 (2d Cir. 1984) (Kearse, J.); see also United States v. DeVincent, 632 F.2d 147, 151 (1st Cir. 1980) ("All of the testimony concerning [the debtor's] subjective understanding, his first hand knowledge of [defendant's] past practices, and his knowledge of [defendant's] reputation were highly probative of his understanding that nonpayment would be punished by extortionate means."). Defendant has cited no authorities to undermine this proposition

Because the government must prove the subjective state of mind of the victim in this case in order to obtain a conviction for a substantive violation of 18 U.S.C. § 892, Leung's testimony is both relevant and admissible.*fn2 Therefore, the government's application in this regard is granted.*fn3

II. Kenneth McCabe Will Be Permitted to Testify as an Expert with Some Limitations

The government seeks to introduce the expert testimony of Kenneth McCabe, a criminal investigator with the United States Attorney's Office. If permitted, McCabe will testify "that there are five [La Cosa Nostra ("LCN")] families in the New York area, about the organization and structure typically adopted by the New York LCN families, and the roles and activities of each rung of the typical LCN family hierarchy." Letter to the Court from AUSAs Diane Gujarati, Esq. & Adam B. Siegel, Esq., dated Mar. 20, 2003 ("Mar. 20, 2003 Letter") at 8. As an example, the government indicates that McCabe will explain that made members of LCN families often operate through individuals known as associates. Additionally, McCabe would outline the requirements for admission into an LCN family, describe the dispute resolution mechanisms typically employed when a dispute arises between members of different LCN families, and state that defendant is a made member of the Gambino LCN Family.

Expert testimony is permissible when it "will assist the trier of fact to understand evidence or to determine a fact in issue." Fed.R.Evid. 702; see, e.g., United States v. Locascio, ¶ F.3d 924, 936 (2d Cir. 1993); United States v. Scop, 846 F.2d 135, 140 (2d Cir.), modified on other grounds, 856 F.2d 5 (2d Cir. 1988). Expert testimony should be limited to situations in which the subject matter is beyond the ken of the average juror. See Locascio, 6 F.3d at 936; United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991); Andrews v. Metro-North Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989) (stating that expert testimony is not proper if it is regarding "matters which a jury is capable of understanding and deciding without the expert's help"). Furthermore, expert testimony is not excludable merely because it encompasses an ultimate issue of fact to be decided by the jury. Fed.R.Evid. 704; see, e.g., United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); United States v. Daly, 842 F.2d 1380, 1388 (2d Cir. 1988) (Kearse, J.). The decision to allow expert testimony is left to the discretion of the court, Locascio, 6 F.3d at 936; United States v. Tutino, 883 F.2d 1125, 1134 (2d Cir. 1989), and will not be overturned unless it is manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35 (1962); United States v. Dukagjini, ___ F.3d ___ 2003 WL 1063153, at *4 (2d Cir. 2003); Bilzerian, 926 F.2d at 1295. Even if acceptable under Rule 702, the Court should exclude expert evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403; Dukagjini, 2003 WL 1063153, at *3; Castillo, 924 F.2d at 1232 n. 9.

Under appropriate circumstances, the Second Circuit has allowed broad and extensive expert testimony regarding the structure, operations and terminology of organized crime families. See, e.g., United States v. Amuso, 21 F.3d 1251, 1263-64 (2d Cir. 1994) (permitting expert testimony regarding the organization, structure and terminology of organized crime families); Locasio, 6 F.3d at 936-37 (affirming conviction in which expert witness testified regarding the nature, function, structure, rules and jargon of LCN families and identified members and ranks of members of the Gambino Family); United States v. Skowronski, 968 F.2d 242, 246 (2d Cir. 1992) (Kearse, J.) (allowing expert testimony defining organized crime jargon); Tutino, 883 F.2d at 1134 (same); Daly, 842 F.2d at 1388 (approving of expert testimony including the identification of the five New York crime families, their requirements for membership, their rules of conduct and the meaning of certain jargon); United States v. Ardito, 782 F.2d 358, 360 (2d Cir. 1986) (affirming conviction in which expert defined LCN terms). It has not suggested, however, that such testimony is acceptable any time the defendant is allegedly connected to the LCN. See Locasio, 6 F.3d at 939 ("We remind the district courts, however, that they are not required to admit such testimony. . . ."); United States v. Long, 917 F.2d 691, 701-03 (2d Cir. 1990) (finding reversible error to allow expert testimony regarding the hierarchical structure of crime families, the roles of each rung of an LCN family and the definition of organized crime jargon because it was "marginally relevant," not helpful to the jury and "substantially prejudicial"). Expert testimony must be relevant to the facts of the particular case at bar. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993) (stating that expert testimony must be "relevant to the task at hand"); see also Fed.R.Evid. 704 advisory committee's note ("Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time."); Locasio, 6 F.3d at 939 (noting that charges against the defendants in that case were "intimately related to organized crime" and therefore expert testimony was relevant and helpful).

The allegation that a defendant is in the mob is not a shibboleth, the mere incantation of which opens the door to extensive expert testimony regarding organized crime. The Court must consider the particular facts, allegations and charged crimes in a case when determining whether proffered expert testimony is necessary and not base its analysis and determination solely on the government's contention that the defendant is a gangster. See Long, 917 F.2d at 73 ("At the time of [the expert's] testimony, however, the court had before it only the indictment and an offer of proof, neither of which demonstrated relevancy. Greater inquiry should have been made as to the degree to which the hierarchy, jargon and general criminal activities of organized crime families would be relevant.").

The Court finds that McCabe is certainly qualified to give expert testimony encompassing the proffered testimony.*fn4 Based on the information provided thus far, however, his testimony ...

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