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United States v. Leto

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


August 8, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
FRANK LETO AND LOUIS FENZA, DEFENDANTS.

The opinion of the court was delivered by: Arthur D. Spatt United States District Judge

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Presently before the Court are motions by Frank Leto ("Leto") and Louis Fenza ("Fenza") (collectively, the "Defendants") fora new trial pursuant to Federal Rule of Criminal Procedure ("Fed. R. Crim. P.") 33. The Government opposes the motions.

I. BACKGROUND

A. The Indictment

On August 12, 2003, the Defendants were indicted and charged with seven counts of various racketeering activities that allegedly occurred between 1986 and 2003. In February 2008, the Government moved to amend the indictment. This Court determined that the amendment required action by a grand jury. As a result, the Government obtained a superseding indictment fromthe grand jury.

On February 14, 2008, the Government filed the superseding indictment against the Defendants. The superseding indictment charged the Defendants with

(1) count one- racketeering, in violation of 18 U.S.C. §§1961(1) and 1961(5); (2) count two- racketeering conspiracy, in violation of 18 U.S.C. §1962(d); (3) count three- extortion conspiracy, in violation of 18 U.S.C. §1951(a); and (4) counts four, five and six- three attempted extortions on January 29, 1999, February 11, 1999 and April 1, 1999, in violation of 18 U.S.C. §1951(a).

Pursuant to a motion by the Defendants, this Court dismissed the racketeering act in count one and the attempted extortion charged in count six, related to activities on April 1, 1999.

B. The Grand Jury Testimony

The Grand Jury heard testimony from various witnesses. The testimony from the following three witnesses is relevant to the Defendants' present motions.

1. As To Elliot Hurdy

On March 7, 2001, Elliot Hurdy, the Vice President of the Huntington Townhouse (the "Townhouse"), testified before the grand jury. He testified that he met with Vic Orena, who had ties to organized crime. He met Leto, whose nickname is "Chickie," through Orena and Chris Stefans, owner of the Stefans Florist Shop. Hurdy testified that when he and Rhona Silver took over the Townhouse, Stefans brought Leto to the Townhouse to operate a limousine company. Leto told Hurdy "if you need anything, if anything comes up, if you ever need anything or anybody bothers you, you could just tell them to talk to me."

Hurdy testified that Leto and Fenza were friends and that Fenza was involved with the limousine company and "farmed it out to different people." He further testified that Howard Silver("Howie"), Rhona Silver's brother, mistakenly ordered 20 limousines and incurred a bill of over $20,000. Howard Silver refused to pay the bill and Leto "intervened, and he said to us that he would -- he'll straighten it out. So I was going to pay them." Hurdytestified that Rhona wanted nothing to do with the limousine bill because they were not responsible and Hurdy stated "I thought we would have a problem with these limousine people." In addition, limousine drivers threatened Hurdy and demanded the money they were owed. As a result, Hurdy began giving payments to Leto every week to pay off the debtto the limousine companies. Hurdy testified that he gave Leto the money and Leto kept the limousine people away from him. Hurdy testified that he did not consider the payments to Leto to be "protection money." He looked at it as paying back a debt. However, Hurdyalso stated "You could look at it as protection money."

The Government later asked Hurdy "You knew Chicky had ties to organized crime?" Hurdy responded "Yep." Hurdy further testified that Leto and Fenza actually came to him regarding the limousine debt and asked "What are we going to do about this problem?" In addition, during his testimony, when the Government used the term "protection money" Hurdy stated "I didn't look at it like that." Hurdy could not recall the dates of the payments he made to Leto.

On April 4, 2001, Hurdy was recalled to testify before the grand jury. Hurdy again testified that Leto and Fenza approached him about paying the outstanding limousine debt, after Hurdy had been threatened by the drivers.

Hurdy testified that if he had stopped making payments to Leto and Fenza he believes that someone in his family would have gotten hurt. At that time, the Government asked "you continued making these payments until approximately February of '99?" Hurdy responded "yeah."

Hurdy also testified that the Townhouse utilized the services of a firm called Parking Systems for valet parking. Parking Systems was run by Mark Baron who had a relationship with Leto and Fenza. In fact, Hurdy testified that Leto and Fenza informed him that he could not terminate the relationship with Parking Systems. In addition, he testified regarding a debt owed to Parking Systems and that he believed they owed him money because he had paid above and beyond the amount owed. In this regard, the Government informed Hurdy that a "vig" was an amount of money above what is owed, paid to organized crime. The Government asked whether he was charged with a "vig". Hurdy responded "one hundred percent, yes."

2. As To Greg Fainer

Greg Fainer testified before the grand jury on April 29, 2003. He worked for Center Plate, a company that had previously been called Service America. The company provides catering to large venues and serviced the Townhouse from December 1997 through March 1999. Fainer testified that Hurdy had told him that Leto and Fenza collected money from Hurdy at the Townhouse. In addition when asked whether Leto and Fenza were there to collect money for protection, Fainer responded "Yes." In addition, Fainer testified that Hurdy's payments to Leto and Fenza for protection was common knowledge in the Townhouse.

Fainer also testified that on January 29, 1999 he saw Fenza at the Townhouse and was told by a security guard that Fenza was picking up money. Also, Fainer testified that Leto and Fenza did not pay to attend a New Year's Eve event at the Townhouse and Hurdy was afraid to ask for money from them because he thought they would kill him. Fainer also testified that on February 11, 1999 he and Hurdy were discussing the payments to Leto and Fenza and Hurdy said his father previously paid money to Leto and Fenza.

Following Fainer's testimony, a grand juror asked the Government to follow-up regarding why Fainer was not asked to pay Leto and Fenza protection money. The Government declined to ask Fainer, noting that the question was speculative. The Government did ask Fainer, on follow-up, whether he had personal knowledge of the threats by the Defendants. Fainer responded that he had not been personally threatened by the Defendants and that he had not heard the Defendants make threats. Fainer was also asked what the Defendants would have provided protection from and responded that in the catering business, "there's people coming in, trying to shake down people for money."

3. As To Special Agent Lewicki

On April 8, 2003, Special Agent Robert Lewicki testified before the grand jury. He testified that he had performed surveillance in connection with the investigation of the Defendants. The Assistant United States Attorney stated "I'm going to let Mr. Hurdy's testimony speak for itself and that testimony controls, but can you, to bring the grand jury up to speed here, tell us briefly what, if anything, Mr. Hurdy has told either you or other members of the Government investigating this matter about his relationship with Leto and/or Fenza?" Agent Lewicki then summarized information he obtained through his investigation, as well as information Hurdy testified to before the grand jury. Specifically, Agent Lewicki noted that Hurdy had told him that from June 1997 through March 1999, he made cash payments to Leto and Fenza in exchange for keeping unions and other organized crime families out of the Townhouse.

C. The Pre-Trial Motion to Dismiss the Indictment

On February 20, 2008, the Defendants moved to dismiss the superseding indictment, contending that the Government acted inappropriately and committed misconduct during the grand jury proceedings. Specifically, the Defendants claimed that, during Hurdy's grand jury testimony, the Government improperly led the witness; ignored the witness' actual responses; badgered him; and coerced him.

On February 21, 2008, after reviewing Hurdy's grand jury testimony, the Court denied the Defendants' motion to dismiss the indictment. Specifically, the Court noted "I have reviewed the grand jury minutes. I do not find any coerced testimony sufficient to grant such a motion and that motion is denied."

D. The Trial Testimony

During the trial, the testimony from the following witnesses is particularly relevant to the Defendants' present motions.

1. As to John Carillo

John Carillo, an Investigator with the United States Attorney's Office for the Southern District of New York, informed the jury regarding his background and experience in the investigation of organized crime. He provided a breakdown of the crime families in the New York area and discussed the history of the Colombo Crime Family.

Carillo testified that in the late 1980's, Carmine Persico, the boss of the Colombo crime family was incarcerated and Vic Orena became the acting boss. Orena attempted to splinter off and take power from Persico. As a result, some members of the Colombo family followed Orena and others stayed loyal to Persico. From 1991 to 1993, there was violence within the family, referred to as the Colombo wars. Carmine Persico prevailed and the war ended in 1993. In the late 1990's, the family requested that all members who were loyal to Orena, who had stayed away from the Persico faction of the family, come back into the family. (Tr. at 310-70).

Carillo testified that, after the Colombo war ended, there were a number of people who had been in the Orena faction who did not come back into the family. In addition, as a disciplinary measure, certain members were "shelved" meaning that they no longer had rights within the organized crime structure. Carillo identified both Frank Campione and Frank Leto as members of the Colombo family and stated "I don't know them to have been shelved." In addition, he testified that Leto was taking part in the family after the wars ended, long before 2000. In addition, he stated that Leto is a soldier in the Colombo crime family and became a made member prior to the Colombo wars. (Tr. at 448, 452-53, 489-90, 510).

2. As to Anthony Rotondo

Anthony Rotondo is a cooperating witness under the protection of the Federal government, after pleading guilty to various serious crimes. Rotondo testified that he committed crimes as a member of the mafia, or La Cosa Nostra. He is a member of the DeCavalcante family of New Jersey. (Tr. at 577-82).

In Court, Rotondo identified the Defendant Fenza and stated that "Louis Fenza is an associate of the Colombo family . . . Chickie Leto is sitting down." Rotondo identified Leto as a soldier in the Colombo crime family. He testified that he first met Leto in 1989 and Leto was introduced to him as a member of the Colombo crime family. (Tr. at 595-96, 617-19).

Rotondo further testified that, following the Colombo wars, the Persico faction prevailed and the men who had sided with the Orena faction were absorbed back into the Colombo family within the Persico faction. Indiscussing the Colombo wars, Rotondo also testified that in the late 1990's Leto asked Campione to make peace with the Colombo family. Priorto that time, following the Colombo wars, Leto had gone back into the family, and wanted Campione to make peace as well. (Tr. at 631, 727-28).

Rotondo pleaded guilty to extortion as a racketeering act in connection with the extortion of a firm called Barr Industries. He testified that Barr Industries produced containers used in interstate commerce. In connection with the extortion of Barr Industries, Rotondo met with Frank Melia, Leto and Fenza. Joe Sclafani, a member of Rotondo's crime family, said that Barr Industries was under his protection and Leto said that he was representing a company called Madison Fuel Oil and that Barr Industries owed more than $500,000 to Madison Fuel Oil. Leto said that Madison Fuel Oil belonged to him and that he wanted to see the issue resolved. In addition, at that meeting, Leto introduced Rotondo to Fenza as "my friend Louie." Rotondo testified that the phrase used by Leto meant that Fenza was Leto's associate. In early 1999, there was an additional meeting regarding Barr Industries and Madison Fuel Oil. Rotondo again met with Leto, Fenza and Frank Melia. (Tr. at 634-44).

Rotondo testified that Leto pleaded guilty to the Barr Industries extortion. (Tr. at 769).

3. As to Elliot Hurdy

Elliot Hurdy testified that although he bought the Townhouse with Rhona Silver and Howie Silver, Rhona was named on the paperwork as the legal owner of the Townhouse. Hurdy's title was Vice President. Hurdy testified that the Townhouse was the largest catering facility in the country and had clients from within and outside of New York State. Vendors, including a photographer and a limousine company had offices in the Townhouse. (Tr. at 967-73).

Hurdy testified that in 1997, his friend Stefans asked if the Townhouse needed a limousine company. Stefans brought in Leto to run a limousine business from the Townhouse. Hurdy had met Leto once before at Stefans' florist shop. At that time, Leto was associated with Orena and Hurdy testified that he knew Orena from hisreputation. Hurdy testified that he knew that Orena was involved with the mafia and believed that Leto was also associated with the mafia. In fact, Hurdy testified that at the time Leto came to operate the limousine business at the Townhouse, he believed that Leto was in the mafia. (Tr. at 976-80).

Hurdy testified that Leto said "if anybody bothered me, or if I had any problems with any of the vendors, he'll be more than glad to step in and try to help me." Hurdy believed that he would not have any problems because Leto was involved in organized crime and would be able to take care of whatever Hurdy needed. (Tr. at 982).

Hurdy testified that Fenza ran the day to day operations of the limousine business. At one point Howie Silver organized an event at the Townhouse and arranged for limousines through Fenza. However, Fenza had farmed out some of the car service to other limousine companies who worked for 36 hours straight. As a result, the bill came to $25,000 and Howie refused to pay. Someone from outside the limousine companies began calling Hurdy and demanding money. Finally, someone called and threatened to harm Rhona and Howie. Hurdy testified that he was afraid and did not know who the individual was who made the threat, but that he was afraid. (Tr. at 983, 986-89).

After Hurdy received the threatening telephone call, Fenza came to speak to Hurdy. Fenza said "we'll try to work out the dispute, but we have to pay them." Hurdy felt that the debt was incurred by Howie, but was inherited by Hurdy and the Townhouse. Fenza said that he would step in and moderate to work out a deal so the Townhouse could pay off the debt. As a result, Hurdy started paying Fenza and Leto. Hurdy testified that every time he had some money, he would put cash in an envelope and give it to Fenza or Leto. Hurdy testified that Fenza never directly threatened him, but he was never given receipts or told how much he had left to pay on the debt.

In fact, Hurdy testified that he did not believe that there would ever be an end to the payments. Hurdy felt that he had to pay Fenza and Leto and, depending on the week, paid from $200, $300 or $400 each week or every three weeks. Hurdy felt that if he stopped making payments he would have a problem from the outside limousine company that was owed $25,000. However, Hurdy had no knowledge as to whether Fenza and Leto were actually passing the payments on to that other company. (Tr. at 989-93).

Hurdy also believed that he would have a problem with Leto if he stopped making payments. Specifically, Hurdy stated that Leto "was very imposing and he made a deal and I just had to continue with that deal." Hurdy testified that he was always frightened of Leto and intimidated by Leto, because of his involvement with organized crime; however, he was not afraid of Fenza. In fact, he testified that he had a very good relationship with Fenza. (Tr. at 994-95, 998, 1027).

Hurdy testified that he made payments to Leto and Fenza from approximately 1997 until February or March 1999 and stopped when the FBI began investigating organized crime at the Townhouse. When the FBI began its investigation, Hurdy stopped making payments and told Fenza that it would be best for the limousine company to leave the Townhouse. Hurdy testified that he only asked Fenza to leave because of the presence of the FBI and, otherwise, would not have done so because he was afraid of Leto. (Tr. at 985-98, 1078).

4. As to Special Agent Robert Lewicki

Agent Lewicki testified that throughout the 1990's, Leto was active in the Colombo Crime family and reported to Frank Melia as his captain. He further testified that although there were two factions of the family during the Colombo wars and throughout part of the 1990's, both factions operated under the umbrella of the Colombo crime family. (Tr. at 1594-95).

5. Other Trial Evidence

In addition, at the trial, the Governmentsubmitted as evidence, the transcript of Leto's plea allocution, during which he pleaded guilty to the extortion of Barr Industries and specifically admitted to extorting that company. (Tr. at 1145).

Also, at the trial, the Government admitted into evidence transcripts of four conversations between Leto and Frank Campione, another Colombo crime family member, intercepted by the FBI when the two men were meeting at the Glen Cove High School baseball field (the "Ballfield Tapes"). The transcripts depict conversations between Leto and Campione regarding "killing rats" or those who become Government informants. They further depict conversations regarding members of the Colombo crime family. The Defendants did not object to admission of the Ballfield Tapes in evidence during the trial (Tr. at 912).

The jurors also considered, as evidence, photographs of Leto, taken by the FBI, outside of the Huntington Townhouse on February 11, 1999.

E. The Verdict

On March 20, 2008, the jury returned a verdict finding both Defendants guilty of all counts in the indictment.

F. The Present Motions

On April 18, 2008, the Defendant Fenza moved for a new trial pursuant to Fed. R. Crim. P. 33. Fenza contends that: (1) the Government constructively abandoned the indictment at trial; (2) the Government committed misconduct during grand jury proceedings; (3) the Court erred in denying his motions to suppress evidence and sever his trial; (4) the Court erred in providing a Pinkerton charge to the jury and in denying the Defendants' request for an elaboration on the inferences charge; and (5) the weight of evidence was against the verdict.

On April 20, 2008, counsel for the Defendant Leto filed a letter stating that she "joins in all post-trial motions, memoranda, and arguments submitted by co-defendant Fenza."

The Government opposesall of the motions. The Government contends that the evidence adduced at trial wassufficient to sustain the Defendants' convictions and that no exceptional circumstances exist to justify granting a new trial.

II. DISCUSSION

A. The Rule 33 Standard of Review

Rule 33 is very brief and states that upon the defendant's motion "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. This rule by its terms gives the trial court "broad discretion to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992); see also United States v. Robinson, 430 F.3d 537, 543 (2d Cir. 2005). In deciding such a motion, the court may weigh the evidence and the credibility of witnesses, but cannot "wholly usurp" the role of the jury. United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000); United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999).

This standard hasalso been described as a "heavy burden," United States v. Fearon-Hales, No 04-231, 2005 U.S. Dist. LEXIS 21619, *3 (S.D.N.Y. Sept. 26, 2005), and "[i]t is well-settled that motions for new trials are not favored and should be granted only with great caution." United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001).

B. As To The Alleged Constructive Amendment of the Indictment

The Second Circuit has referred to claims that evidence at trial did not conform to the indictment as a prejudicial variance or a constructive amendment. United States v. Jones, 2008 U.S. App. LEXIS 9868 (2d Cir. May 6, 2008); United States v. Mucciante, 21 F.3d 1228, 1236 (2d Cir.), cert. denied, 130 L.Ed. 2d 315, 115 S.Ct. 361 (1994); United States v. Attanasio, 870 F.2d 809, 817 (2d Cir. 1989) (internal citation omitted). "A variance occurs when 'the evidence adduced at trial establishes facts different from those alleged in the indictment,' and violates the Fifth Amendment only when the defendant can demonstrate prejudice." Mucciante, 21 F.3d at 1236 (citing Dunn v. United States, 442 U.S. 100, 105, 60 L.Ed. 2d 743, 99 S.Ct. 2190 (1979)).

"A constructive amendment of an indictment occurs when 'either the proof at trial or the trial court's jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment.'" United States v. Jones, 2008 U.S. App. LEXIS 9868 (2d Cir. May 6, 2008) (citing United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003)). A constructive amendment of the indictment per se violates the grand jury guarantee of the Fifth Amendment. Salmonese, 352 F.3d at 621.

"[W]here a generally framed indictment encompasses the specific legal theory or evidence used at trial, there is no constructive amendment." United States v. Rigas, 490 F.3d 208, 228 (2d Cir. 2007) (internal citations omitted). "As a result, 'an indictment drawn in more general terms may support a conviction on alternate bases, even though an indictment with specific charging terms will not." Id. (citing United States v. Zingaro, 858 F.2d 94, 99 (2d Cir. 1988)). In Rigas, the Second Circuit noted we have "consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial." United States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992) (emphasis added) (internal quotation marks omitted). "[P]roof at trial need not, indeed cannot, be a precise replica of the charges contained in an indictment." United States v. Heimann, 705 F.2d 662, 666 (2d Cir. 1983).

Id.

In the present case, the Defendants contend that, although the indictment charged them with conspiracy to extort and attempted extortion, the indictment was constructively amended. The Defendants contend that as a result of Hurdy's testimony regarding cash payments made to the Defendants, theywere convicted of "receiving two completed extortionate payments as part of a larger pattern, rather than making two attempts at extorting the Huntington Townhouse."

However, in the present case, the Defendants were clearly given notice of "the core of criminality to be proven at trial." Rigas, 490 F.3d at 228. In fact, the indictment broadly charged the Defendants with various extortion related activities. Among other things, the indictment specifically alleged that the Defendants "agreed to obtain property, to wit: money, from the owners and operators of the Huntington Townhouse." The Court finds that the Defendants were aware of the actions with which they were charged and the indictment was not constructively amended.

The Defendants further contend that the Government "abandoned its theory presented during the grand jury process." The Defendants contend that during the grand jury proceedings, testimony was provided regarding a "protection" scheme and the Defendants' intervention on behalf of the Townhouse with various third parties. However, they claim that during trial, the Government produced testimony regarding a "protection" scheme based on a false debt allegedly engineered by the Defendants.

However, the Defendants fail to contend that this alleged difference in the "protection" scheme relates to the actual indictment. The Defendants claim only that grand jury testimony and trial testimony set forth different schemes; they do not contend that the indictment was in any way altered, amended or abandoned. Moreover, the grand jury did, in fact, hear testimony about a "protection" scheme related to a false debt. Hurdytestified, before the grand jury, that he began making payments to Leto every week to pay off the debt. He stated that he gave Leto the money and Leto kept the limousine people away from him. As a result, despite the Defendants' contentions, the grand jury did in fact hear testimony regarding the "protection" scheme in relation to the debt.

As such, the indictment was not constructively amended and the Defendants' motions on this ground are denied.

C. As To Alleged Prosecutorial Misconduct During Grand Jury Proceedings

"The grand jury serves the related purposes of investigating wrongdoing and protecting individuals from unfounded prosecutions." United States v. Bari, 750 F.2d 1169, 1176 (2d Cir. 1984) (citing United States v. Hogan, 712 F.2d 757, 759 (2d Cir. 1983)). "Grand jury proceedings carry a 'presumption of regularity.'" United States v. Urso, 2006 U.S. Dist. LEXIS 13147, at *10 (E.D.N.Y. Mar. 16, 2006) (citing United States v. Torres, 901 F.2d 205, 232-33 (2d. Cir. 1990)). "A court reviews grand jury proceedings under a harmless error analysis." Id. (citing The Bank of Nova Scotia v. United States, 487 U.S. 250, 254-56, 108 S.Ct. 2369, 101 L.Ed. 2d 228 (1988)).

In Urso, the Court determined that "dismissal of an indictment is only appropriate if it is established that the violation substantially influenced the grand jury's decision to indict, or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Id. (citing United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 89 L.Ed. 2d 50 (1986)). Further, the "court lacks the power to dismiss an indictment on the ground that the prosecutor failed to present substantially exculpatory evidence to the grand jury." Id. at *18 (citing Williams, 504 U.S. at 55). As "the grand jury is an accusatory rather than an adjudicative body . . . the court cannot interfere with the grand jury's historic role of 'hearing only the prosecutor's side.'" Id. (citing Williams, 504 U.S. at 55).

A "district court has the power to dismiss an indictment . . . in the case of extreme prosecutorial misconduct, evidenced by the prosecutor's mischaracterization of the evidence or prejudicial statements that substantially influence the grand jury's decision to indict." Id. at *22. In Bari, the Second Circuit determined that

[a] prosecutor should of course inform a grand jury of any substantial evidence of which the prosecutor is aware that negates an accused's guilt, United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir. 1979), and should respond candidly to a grand jury's inquiries. See id. at 622-23. However, dismissal is warranted only where the prosecutor's conduct amounts to a knowing or reckless misleading of the grand jury as to an essential fact. Defendants are not entitled to a full trial before a grand jury, and grand jury proceedings ought not be viewed as fertile ground to be combed for evidentiary or other error.

Bari, 750 F.2d at 1176. Also, "[a]lthough hearsay can mislead a grand jury as to the strength of the government's case, there is no per se prohibition on its use."

Id. (citing United States v. Bein, 728 F.2d 107, 113 (2d Cir. 1984)). In addition, Federal Rule of Evidence 403 "does not apply to grand jury proceedings." Id. at 1177. According to the Bari Court, "[t]he admission of evidence within the realm of colorable relevance is not misconduct calling for the extreme remedy of dismissal of the indictment even if the prejudicial effect of such evidence outweighs its probative value." Id.

Moreover, "[w]hen, as here, a petit jury has found a defendant guilty beyond a reasonable doubt after hearing all the evidence, including that which was not before the grand jury and the absence of which is claimed to taint the indictment, dismissal of the indictment can be justified only as a method of deterring prosecutorial misconduct." Bari, 750 F.2d at 1176 (citing United States v. Thibadeau, 671 F.2d 75, 78 (2d Cir. 1982)).

In the present case, the Defendants contend that the Government committed misconduct during the grand jury proceedings. Specifically, the Defendants contend that the Government improperly questioned Hurdy by erroneously characterizing Hurdy's description of the money paid to the Defendants as protection money and injecting organized crime into the testimony.

However, prior to the trial, the Defendants moved to dismiss the indictment, arguing that the prosecutor committed misconduct during Hurdy's questioning before the grand jury. The Court reviewed the transcript of the grand jury proceedings, and determined "I do not find any coerced testimony sufficient to grant such a motion and that motion is denied." (Tr. at 179). Moreover, although Hurdy testifiedbefore the grand jury that he did not consider the payments to Leto to be "protection money," but rather, as money to pay back a debt, Hurdy specifically stated during his testimony, "[y]ou could look at it as protection money." In addition, Hurdy specifically testified that he was aware that Leto had ties to organized crime. There is no evidence that Hurdy's testimony was obtained by any improper conduct by the Government. As such, the motions are denied with respect to Hurdy's testimony before the grand jury.

The Defendants further contend that during the Government's questioning of Fainer, the Government declinedto follow-up with questions from grand jurors and improperly permitted Fainer to testify regarding a conversation with Hurdy on February 11, 1999. These contentions are without merit.

Although, apparently, the Government did not address this issue in its opposition papers, following Fainer's testimony, a grand juror asked the Government to follow-up regarding why Fainer was not asked to pay protection money to Leto and Fenza. The Government declined to ask Fainer that question, noting that the question was speculative. The Government did ask Fainer, on follow-up, whether he had personal knowledge of the threats by the Defendants. The Court finds that the Government did not commit misconduct in failing to ask such a speculative question. In addition, the Court finds no misconduct in Fainer's testimony regarding a February 11, 1999 conversation with Hurdy. As the Bari Court found, "defendants are not entitled to a full trial before a grand jury, and grand jury proceedings ought not be viewed as fertile ground to be combed for evidentiary or other error." Bari, 750 F.2d at 1176.

Finally, the Defendants contend that Agent Lewicki testified two years after Hurdy, and summarized information he received from Hurdy; a conversation between Fainer and Hurdy; and Hurdy's testimony. In addition, the Defendants contend that Agent Lewicki did not provide the grand jury with various potentially mitigating facts such as the lack of violence by the Defendants.

Although the Government also failed to address the Defendants' claims regarding Agent Lewicki, as discussed, "[a]lthough hearsay can mislead a grand jury as to the strength of the government's case, there is no per se prohibition on its use." Bari, 750 F.2d at 1176. In addition, the Government was not required to inform the grand jury of all the facts as the "court lacks the power to dismiss an indictment on the ground that the prosecutor failed to present substantially exculpatory evidence to the grand jury." Urso, 2006 U.S. Dist. LEXIS at *18 (citing Williams, 504 U.S. at 55). It is classic that the grand jury "hear[s] only the prosecutor's side." Id. (internal citation omitted).

As such, the Defendants' motions based on prosecutorial misconduct during the grand jury proceedingsare denied.

D. As To The Motions To Suppress and For Severance

In August 2004, Fenza moved to suppress tapes of intercepted conversations between Leto and Frank Campione at the Glen Cove High School baseball field (the "Ballfield Tapes"). Fenza argued that the Ballfield Tapes were irrelevant and consisted of inadmissible hearsay. In addition, Fenza moved to sever his trial arguing that he would be prejudiced by the admission of the Ballfield Tapes. The Defendants contend that Fenza's pre-trial motions to suppress the Ballfield Tapes and for a severance were improperly denied. In this regard, the Defendants contend that Judge Platt denied the motion for a severance on March 7, 2007. The Defendants fail to note when Judge Platt denied the suppression motion.

The Court notes however, at a March 5, 2007 conference, docketed on March 7, 2007, Judge Platt actually offered to sever the trials due to the illness of Fenza's prior counsel, Barry Fallick. In fact, Judge Platt said "[a]re we going to sever the trial and try it?" At that time, Ms. Seltzer, Leto's counsel, stated that the parties had prepared a joint defense from the beginning of the case and requested an adjournment ratherthana severance. In addition, at that conference, Fenza'sthen counsel, Jill Harrington, stated "[i]t would be very difficult now to split up these two defendants to take them to trial separately." As a result, the trial was not severed.

Following that conference, Fenza's counsel, Ms. Harrington, submitted a letter to the Court dated March 6, 2007, noting that she had made an error in arguing that severance would be harmful to the parties. She noted that, instead, she was reiterating a prior request for severance.

Although the docket entries for March 28, 2007 and April 17, 2007 also note that severance was discussed, this Court has been informed by the particular court reporters involved in these proceedings that there is no record of conferences taking place on those dates. Moreover, this Court has not located any decisions by Judge Platt denying either the suppression or severance motions and the Defendants failed to attach such decisions to their motion papers.

The only decision that this Court has located regarding the Ballfield Tapes is Judge Platt's April 20, 2005 decision denying Leto's motion for a Franks hearing. Leto apparently contended that Agent Lewicki made misrepresentations in the application for electronic surveillance that led to the Ballfield Tapes. Judge Platt denied the motion for a Franks hearing finding that Agent Lewicki did not make misrepresentations. However, this decision does not address Fenza's motion for suppression of the Ballfield Tapes or the relevance of the Ballfield Tapes.

This case was reassigned to this Court on September 27, 2007. During the trial, on February 26, 2008, at the time that the Ballfield Tapes were admitted into evidence, the Defendants' counsel noted that they had no objection to their admission. (Tr. at 912).

By letter dated June 16, 2008, appearing as document number 156 on the docket sheet, this Court informed counsel that it was in the process of reviewing the post-trial motions and could not locate a copy of Judge Platt's decision denying severance. As a result, the Court directed counsel to forward a copy of that decision to this Court. As of the present date, the Court has only received a letter, dated July 28, 2008, from Fenza's counsel, Aaron Goldsmith, noting that the Defendants have no record of Judge Platt's decision.

In fact, on August 7, 2008, during oral argument on the present post-trial motions, the attorneys were still unable to provide the Court with any information regarding the motions to suppress and sever. However, during argument counsel argued that they did not object to admission of the Ballfield Tapes into evidence during the trial because their previous motion to suppress had been denied.

As previously discussed, the Defendants bear a "heavy burden" in making a post-trial motion, Fearon-Hales, 2005 U.S. Dist. LEXIS at *3, and "motions for new trials are not favored." Costello, 255 F.2d at 879. The Defendants failed to provide the Court with the requested decision and failed to provide any discussion in their motion papers regarding the alleged denials by Judge Platt. In fact, the information set forth in the Defendants' papers may be actually inaccurate. As discussed above, although the Defendants contend that the severance motion was denied on March 7, 2007, at the March 5, 2007 conference Judge Platt actually offered the parties the option of severance due to the illness of Fenza's counsel, Mr. Fallick.

As such, although the Defendants contend that Judge Platt's decisions on suppression and severance were erroneous, despite a request by this Court, they have not produced the decisions or cited any parts of the decisions. In addition, the Defendants failed to address the fact that Judge Platt offered to sever the trials and that counsel rejected that offer. Moreover, counsel did not object, before this Court, to admission of the Ballfield Tapes as evidence. Specifically, when the Court asked if the Defendants had any objection to the Government's request to enter the Ballfield Tapes into evidence, Mr. Fasulo and Ms. Seltzer both responded "No objection." (Tr. at 912). As such, the Defendants failed to meet their burden and the motions regarding severance and suppression are denied.

E. As To The Jury Charge

1. As to the Pinkerton Charge

"Under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), a defendant who does not directly commit a substantive offense may nevertheless be liable if the commission of the offense by a co-conspirator in furtherance of the conspiracy was reasonably foreseeable to the defendant as a consequence of their criminal agreement." United States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007) (internal citations omitted)."An offense by a co-conspirator is deemed to be reasonably foreseeable if it is 'a necessary or natural consequence of the unlawful agreement.'" Id. (citing Pinkerton, 328 U.S. at 648).

"Thus, under Pinkerton, a defendant may be found 'guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed, that it had been committed in the furtherance of an unlawful conspiracy, and that the defendant was a member of that conspiracy.'" United States v. Bruno, 383 F.3d 65, 89 (2d Cir. 2004) (citing United States v. Miley, 513 F.2d 1191, 1208 (2d Cir. 1975)). "We have cautioned that the Pinkerton charge should not be given as a matter of course and in particular where the evidence is such that the jury is required to resort to the inverse of Pinkerton and infer the existence of a conspiracy from the series of disparate criminal offenses." United States v. Salameh, 152 F.3d 88, 149 (2d Cir. 1998) (internal citations omitted).

The Defendants contend that the Court erred in chargingthe jury with the Pinkerton charge. Specifically, they allege that there is no evidence that the extortion took place and no evidence that Leto was involved in organized crime. In addition, they contend that the Pinkerton charge permitted the jury to find Fenza guilty of attempted extortion based solely on Hurdy's perception that Leto was involved in organized crime.

In the present case, the Court gave the jury a Pinkerton charge, only as to counts four and five which charged the Defendants with attempted extortion. The Court's charge is as follows:

IF, IN LIGHT OF MY INSTRUCTIONS, THE GOVERNMENT PROVES, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT WAS A MEMBER OF THE CONSPIRACY CHARGED IN COUNT THREE OF THE INDICTMENT, NAMELY EXTORTION CONSPIRACY, AND THUS, GUILTY ON THE CONSPIRACY COUNT THREE, THEN YOU MAY ALSO, BUT YOU ARE NOT REQUIRED TO, FIND HIM GUILTY OF THE SUBSTANTIVE CRIMES CHARGED AGAINST HIM IN COUNTS FOUR AND FIVE, PROVIDED YOU FIND THAT THE GOVERNMENT PROVED, BEYOND A REASONABLE DOUBT, EACH OF THE FOLLOWING ELEMENTS:

FIRST, THAT THE CRIME CHARGED IN THE SUBSTANTIVE COUNT YOU ARE CONSIDERING WAS COMMITTED;

SECOND, THAT THE PERSON OR PERSONS YOU FIND ACTUALLY COMMITTED THE SUBSTANTIVE CRIME OF ATTEMPTED EXTORTION WAS OR WERE MEMBERS OF THE CONSPIRACY YOU FOUND TO HAVE EXISTED IN COUNT THREE;

THIRD, THAT THE SUBSTANTIVE CRIME YOU ARE CONSIDERING WAS COMMITTED PURSUANT TO A COMMON PLAN AND UNDERSTANDING YOU FOUND TO EXIST AMONG THE CONSPIRATORS;

FOURTH, THAT THE DEFENDANT YOU ARE CONSIDERING WAS A MEMBER OF THAT CONSPIRACY AT THE TIME THE SUBSTANTIVE CRIME OF ATTEMPTED EXTORTION WAS COMMITTED; AND

FIFTH, THAT THE DEFENDANT YOU ARE CONSIDERING COULD HAVE REASONABLY FORESEEN THAT THE SUBSTANTIVE CRIME OF ATTEMPTED EXTORTION CHARGED IN COUNTS FOUR AND FIVE MIGHT BE COMMITTED BY HIS CO-CONSPIRATORS.

IF THE GOVERNMENT PROVES ALL FIVE OF THESE ELEMENTS, BEYOND A REASONABLE DOUBT, THEN YOU MAY FIND THE DEFENDANT GUILTY OF THE SUBSTANTIVE CRIMES CHARGED AGAINST HIM IN COUNTS FOUR AND FIVE, ATTEMPTED EXTORTION, EVEN THOUGH HE DID NOT PERSONALLY PARTICIPATE OR DID NOT HAVE ACTUAL KNOWLEDGE OF THE ACTS CONSTITUTING THE CRIME.

THE REASON FOR THIS RULE IS SIMPLY THAT A CO-CONSPIRATOR WHO COMMITS A SUBSTANTIVE CRIME PURSUANT TO A CONSPIRACY IS DEEMED TO BE THE AGENT OF THE OTHER CONSPIRATORS. THEREFORE, ALL OF THE CO-CONSPIRATORS MUST BEAR CRIMINAL RESPONSIBILITY FOR THE COMMISSION OF THE FORESEEABLE SUBSTANTIVE CRIMES.

IF, HOWEVER, THE GOVERNMENT FAILED TO PROVE ANY OF THESE FIVE ELEMENTS, THEN YOU MAY NOT FIND THE DEFENDANT GUILTY OF THE SUBSTANTIVE CRIME CHARGED IN THE COUNT YOU ARE CONSIDERING, NAMELY COUNT FOUR AND COUNT FIVE, UNLESS THE GOVERNMENT PROVES, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT PERSONALLY COMMITTED, OR AIDED AND ABETTED THE COMMISSION OF, THE SUBSTANTIVE CRIME CHARGED IN THOSE COUNTS.

Contrary to the Defendants' claims, the Government presented evidence that Fenza was a member of the conspiracy, sufficient to justify the Court's Pinkerton charge. In fact, the Court heard oral argument on the issue of the Pinkerton charge, prior to providing that charge to the jury. At that time, the Court found that Fenza "was involved in some of the transactions. He was in the limo business, which apparently subcontracted to another company for this alleged debt to have occurred upon, so he is not sitting somewhere else in Brooklyn eating at the restaurant. He is right there at the scene." (Tr. at 2000).

In addition, the Court reviewed the trial testimony with the parties. The Court noted that, according to Hurdy, when Howard Silver refused to pay the limousine bill, Fenza approached Hurdy and said he would try to work out a deal so Hurdy could pay the debt. At that time, Hurdy began paying Fenza directly and Hurdy testified that he did not believe that the payments would ever cease. In fact, Hurdy testified that he felt that he had to pay Fenza and Leto and that if he stopped paying he would have problems with Leto. Hurdy testified that he was frightened and intimidated by Leto. (Tr. at 990-98). After reviewing this testimony, the Court determined

This is a case where Pinkerton is classically involved. There is evidence that a jury could find that the crime was committed, that the person who committed the crime, allegedly Leto and Fenza, were members of the conspiracy, that it was committed pursuant to a common plan and understanding and that it was reasonably foreseeable in my opinion, the jury could find that.

(Tr. at 2006).

As such, the Pinkerton charge was appropriate in light of the testimony and the evidence presented at trial. Accordingly, the Defendants' motion on the Pinkerton ground is denied.

2. As to the Inferences charge

In addition, the Defendants contend that the Court improperly denied their request to charge the jury with the following instruction on inferences: "If you are left with inferences that could go either[to] the innocence or guilty, you must find in favor of innocence."

In United States v. Attanasio, 870 F.2d 809, 814 (2d Cir. 1989), the Court reviewed a jury charge similar to the one requested by the Defendants in the present case. Specifically, the charge was as follows: "If you find that the evidence respecting the defendant is as consistent with innocence as it is with guilt, then it is your duty to accept the inference which favors innocence. The reason for this is obvious: Since the inferences are in balance there is necessarily a reasonable doubt." Attanasio, 870 F.2d at 814.

In reviewing the charge, the Second Circuit determined that "[t]he instruction explained that the inference favoring innocence must prevail when the inferences of guilt and innocence are equally balanced. We previously have condemned such a charge 'because, standing alone, such language may mislead a jury into thinking that the government's burden is somehow less than proof beyond a reasonable doubt.'" Id. at 818 (citing United States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987)).

More recently, in United States v. Inserra, 34 F.3d 83, 91 (2d Cir. 1994), the jury instruction at issue "explained that where the evidence reasonably permitted a finding of both innocence and guilt, the jury should adopt the conclusion of innocence." According to the Second Circuit, "[w]e repeatedly have emphasized that such a charge is improper because it may mislead a jury into thinking that the government's burden is somehow less than proof beyond a reasonable doubt." Inserra, 34 F.3d at 91 (internal citations omitted).

In the present case, the Court properly instructed the jury on inferences as follows:

HERE AGAIN, LET ME REMIND YOU THAT, WHETHER BASED UPON DIRECT OR CIRCUMSTANTIAL EVIDENCE, OR UPON THE LOGICAL, REASONABLE INFERENCES DRAWN FROM SUCH EVIDENCE, YOU MUST BE SATISFIED OF THE GUILT OF THE DEFENDANT BEYOND A REASONABLE DOUBT BEFORE YOU MAY CONVICT.

Despite the Defendants' contentions, the Court did not err in failing to provide the jury with an inference instruction that has been deemed improper by the Second Circuit.

Accordingly, the Defendants' motions on this inference ground are denied.

F. As To The Sufficiency of the Evidence

The Defendants contend that "the weight of the evidence adduced at trial was against the verdict." As stated recently in United States v. Leonard, 529 F.3d 83, 86 (2d Cir. 2008): "A defendant challenging the sufficiency of the evidence supporting his conviction bears a heavy burden." United States v. Nektalov, 461 F.3d 309, 317 (2d Cir. 2006). As we consider the challenge, "we must view the evidence, whether direct or circumstantial, in the light most favorable to the government and credit every inference that could have been drawn in its favor." United States v. Diaz, 176 F.3d 52, 89 (2d Cir. 1999). We will reject the sufficiency challenge if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979).

So that, "[i]n considering the sufficiency of the evidence, the court must view all of the evidence in the light most favorable to the government. A court must analyze the pieces of evidence not separately, in isolation, but together, in conjunction with one another. Accordingly, a court must apply the sufficiency test to the totality of the government's case and not to each element, as each fact may gain color from the others." United States v. Yannotti, 415 F. Supp. 2d 280, 285 (S.D.N.Y. 2005) (internal citations omitted). Moreover, as previously discussed, "motions for new trials are not favored and should be granted only with great caution." Costello, 255 F.2d at 879. In addition, "[t]he ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Ferguson, 246 F.3d at 134.

1. As to the RICO Conspiracy Convictions

The Defendants contend that the Government failed to prove each of the required racketeering elements, and , as a result, the trial evidence was insufficient to support their convictions. Specifically, the Defendants claim that the Government failed to prove: (1) the existence of an enterprise; (2) illegal activity relating to interstate commerce; (3) the Defendants' participation in illegal activity; and (4) a pattern of racketeering activity. The Defendants further contend that there is no evidence that they conspired to further illegal activity.

a. As to the Enterprise and the Defendants' Participation

"An enterprise includes 'any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.' 18 U.S.C. § 1961(4). The existence of an enterprise is proven 'by evidence of an ongoing organization, formal or informal, and by evidence that various associates function as a continuing unit." United States v. Eppolito, 436 F. Supp. 2d 532, 569 (E.D.N.Y. 2006) (citing United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed. 2d 246 (1981)).

In the present case, the evidence at trial was sufficient to demonstrate the existence of the enterprise, the Colombo crime family. Carillo testified about the structure of organized crime families, as well as the association of Leto and Fenza with the Colombo crime family. Also, Rotondo and Agent Lewicki testified with regard to the enterprise, its organization and the Defendants' participation in the enterprise. In addition, the jury heard statements by Leto regarding the Colombo crime family in the Ballfield Tapes.

Although the Defendants contend that they were not active members of the Colombo Crime Family at the time of the extortions at the Townhouse, this Court may weigh the evidence and the credibility of witnesses, but cannot "wholly usurp" the role of the jury. Autuori, 212 F.3d at 120. The jury heard the testimony of the witnesses, and although the jury heard testimony from Rotondo and Carillo regarding a power struggle within the Colombo Crime Family, determined that the Defendants were in fact associated with the enterprise at the time of the extortion. Further, there is sufficient evidence that, despite the Colombo war, the Defendants always remained participants and active members of the Colombo family.

In addition, Carillo identified both Frank Campione and Frank Leto as members of the Colombo family and stated that "I don't know them to have been shelved." Also, he testified that Leto was taking part in the family after the wars ended, long before 2000. Further, he stated that Leto is a soldier in the Colombo crime family and became a made member before the Colombo wars. Also, in discussing the Colombo wars, Rotondo testified that in the late 1990's Leto asked Campione to make peace with the Colombo family. According to Rotondo, Leto had, prior to that time, following the Colombo wars, gone back into the family, and wanted Campione to make peace as well.

Also on this subject, Agent Lewicki testified that throughout the nineties, Leto was active in the Colombo crime family and reported to Frank Melia as his captain throughout that time period. He further told the jury that, although there were two factions of the family during the Colombo wars and throughout part of the 1990's, both factions operated under the umbrella of the Colombo crime family. In addition, as to Fenza, the jury heard evidence that he was Leto's associate during this time period.

As such, there is sufficient evidence of the existence of the enterprise and the Defendants' participation in that enterprise, namely the Colombo crime family.

b. As to a Pattern of Racketeering Activity and the Defendants' Agreement to Engage in Illegal Activity

"In order to prove a pattern of racketeering activity a . . . prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." Eppolito, 436 F. Supp. 2d at 570 (internal citations omitted). "Criminal conduct does not form a pattern until it embraces acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated acts." Id. "The individual predicate acts proved need not be directly related, but must at the very least be related to the enterprise in a way that makes them indirectly connected to each other." Id. (citing United States v. Locascio, 6 F.3d 924, 943 (2d Cir. 1993)).

The Defendants contend that the evidence is insufficient to prove that Fenza engaged in extortion of the Townhouse, "let alone the requisite pattern of racketeering activity." The Defendants further contend that they did not agree to participate in or further any illegal activity.

However, as will be discussed below, the Government introduced evidence of the Defendants' agreement and participation in the extortion of the Townhouse. In addition, Rotondo testified in detail regarding the Barr Industries extortion. He informed the jury that both Leto and Fenza, as Leto's associate, were present at meetings regarding the Barr extortion. Also, the jury heard evidence of Leto's guilty plea in the Barr extortion. Further, through Rotondo's testimony, the jury heard evidence that the Barr extortion was committed with other members of the Colombo crime family and, in fact, involved meetings with other crime families.

This evidence sufficiently established a pattern of racketeering activity and the Defendants' agreement to engage in the alleged activity.

c. As to Interstate Commerce

The Defendants also contend that the Government failed to establish that the extortion activities had any relation to interstate commerce. However, Hurdy testified at the trial that the Huntington Townhouse, as the largest catering hall on the east coast, catered to clients from both within and outside of New York. In addition, the Government established, through Rotondo's testimony, that the Barr Industries extortion involved negotiations between New York and New Jersey families regarding a company involved in interstate commerce.

2. As To The Extortion Conspiracy and Attempted Extortion Convictions

The Defendants contend that the evidence at trial was insufficient to demonstrate that they extorted the Townhouse. Specifically, they claim that there was no evidence of threats, violence or intimidation. They further contend that Hurdy's testimony actually supports Fenza's claim of innocence.However, the Court notes that the Defendants were convicted of extortion conspiracy and attempted extortion.

"In order to prove a conspiracy, the Government must show that two or more persons entered into an agreement to commit the substantive offense as charged and that an overt act in furtherance of the conspiracy was committed." United States v. Xiao Qin Zhou, 428 F.3d 361, 370 (2d Cir. 2005). As the Court instructed the jury, "you may find a defendant guilty of the crime of conspiracy even though the substantive crime which was the object of the conspiracy was not actually committed."

"[E]xtortion, which, in the context of federal crimes, in relevant part, 'means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.'" Id. (citing 18 U.S.C. § 1951(b)(2)). "Extortion is frequently exemplified by 'revenue-producing measures . . . utilized by organized crime to generate income' - measures 'such as shakedown rackets and loan-sharking.'" Id. (citing United States v. Nardello, 393 U.S. 286, 295, 89 S.Ct. 534, 21 L.Ed. 2d 487 (1969)). A finding of an attempted extortion does not require proof of a completed extortion and "[t]o prove attempted extortion, it is necessary to prove only an attempt to instill fear." United States v. Gambino, 566 F.2d 414, 419 (2d Cir. 1977).

The jury heard evidence sufficient to find that Leto and Fenza were associated with the Colombo crime family and, as associates, agreed to extort the Townhouse and committed overt acts in furtherance of that agreement. Further, the evidence presented is sufficient for the jury to have found that the Defendants used fear to obtain money from the Townhouse.

At the trial, Hurdy testified that Stefans brought Leto to the Townhouse, to run a limousine business. Hurdy testified that he knew Vic Orena was involved with the mafia and, further, believed that Leto was also associated with Orena and the mafia. Hurdy testified that Leto said "if anybody bothered me, or if I had any problems with any of the vendors, he'll be more than glad to step in and try to help me." Hurdy believed that he would not have any problems because Leto was involved in organized crime.

As previously noted, Hurdy testified that Fenza, who ran the limousine business, actually initiated the "payment plan" and collected many of the payments. Although Hurdy testified that he had a good relationship with Fenza, he also stated that he did not believe that there would be an end to the payments and he felt that he had to pay Fenza and Leto. Moreover, Hurdy was never given receipts or told how much he had left to pay on the debt. In fact, Hurdy testified that he was afraid of Leto and found him to be imposing. As a result, Hurdy made payments from approximately 1997 until February or March 1999, with no end to the payments in sight.

The Court finds that there is sufficient evidence of both Leto's and Fenza's participation in the conspiracy and the attempted extortion of the Townhouse. Despite Hurdy's good relationship and seeming friendship with Fenza, the jury reasonably could have concluded that Hurdy was afraid to stop making payments to Fenza and Leto because of their affiliation with the Colombo crime family. In addition, the payments were collected by both Fenza, who initiated the arrangement, and Leto.

Although the Defendants also contend that the evidence was insufficient to prove attempted extortions on the January 29, 1999 and February 11, 1999 dates set forth in the indictment, Hurdy testified that he made payments to Leto and Fenza from 1997 through February or March 1999, sometimes every week and sometimes every three weeks. In addition, the jury viewed photographs of Leto at the Townhouse on February 11, 1999. As the Court instructed the jury

IT DOES NOT MATTER IF THE INDICTMENT CHARGES THAT A SPECIFIC ACT OCCURRED ON OR ABOUT A CERTAIN DATE, AND THE EVIDENCE INDICATES THAT, IN FACT, IT WAS ON ANOTHER DATE, IF, IN FACT, THE EVIDENCE DOES SO INDICATE. IT IS SUFFICIENT IF THE EVIDENCE ESTABLISHES BEYOND A REASONABLE DOUBT THAT AN OFFENSE WAS COMMITTED ON A DATE REASONABLY NEAR THE DATE ALLEGED.

As such, it was reasonable for the jury to find that attempted extortions took place on or about January 29, 1999 and February 11, 1999.

As such, the Defendants' motions based on the weight of the evidence are denied.

III. CONCLUSION

Based on the foregoing, it is hereby

ORDERED, that the Defendant Fenza's Rule 33 motion for a new trial is DENIED; and it is further

ORDERED, that the Defendant Leto'sRule 33 motion for a new trial is DENIED.

Sentencing for both Defendants is scheduled for November 21, 2008 at 9 am.

SO ORDERED.

20080808

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