Appeal by the defendant Michael Spinelli from his conviction following a jury trial in the United States District Court for the Eastern District of New York (Dearie, J.) for, inter alia, conspiracy to commit murder and assault with a dangerous weapon, both for the purpose of increasing and maintaining a position in a racketeering enterprise, witness tampering, and use of a firearm in the commission of a crime of violence. Defendant contends primarily that he is entitled to a new trial because of the Government's failure to disclose impeachment material and because of the prosecutor's improper vouching for the credibility of government witnesses on the rebuttal summation. The Court of Appeals (Leval, J.) affirms the conviction. Although the prosecutor improperly vouched to the jury that the government's cooperating accomplices had never perjured themselves or falsely implicated anybody in a crime, the error does not warrant vacating the conviction in light of the strength of the evidence of guilt. With the consent of the government, the court remands for reconsideration of the sentence.
The opinion of the court was delivered by: Leval, Circuit Judge
Before: LEVAL, WESLEY, LIVINGSTON, Circuit Judges.
Defendant Michael Spinelli appeals from his conviction following a jury trial in the United States District Court for the Eastern District of New York (Dearie, J.) for conspiracy to commit murder for the purpose of increasing and maintaining a position in a racketeering enterprise (the Luchese Organized Crime Family), 18 U.S.C. § 1959(a)(5); assault with a dangerous weapon for the purpose of increasing and maintaining a position in a racketeering enterprise, 18 U.S.C. § 1959(a)(6); conspiracy to tamper with a witness, 18 U.S.C. § 371; witness tampering, 18 U.S.C. § 1512(a)(1)(A); and using a firearm during and in relation to the murder conspiracy and the assault (two counts), 18 U.S.C. § 924(c)(1)(A). He was sentenced principally to 295 months imprisonment to begin on completion of a twenty-two year term he was already serving, plus a single 60-monthconsecutive term on the firearm counts.
Spinelli contends on appeal that he is entitled to a new trial because the government (1) failed to disclose information helpful to the defense, as required by Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); (2) knowingly used perjured testimony, and (3) committed various misconduct at trial. He contends also that his sentence should be reconsidered in light of United States v. Booker, 543 U.S.220 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005); and that the court erred in increasing his sentencing level under § 2A2.1(b)(1) of the United States Sentencing Guidelines ("U.S.S.G.") by reason of the victim's injuries, without adequate findings.
A. The Attempted Murder of Capozzalo
The evidence, seen in the light most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), showed the following. The series of events that ended in Spinelli's conviction for the attempted murder of Patricia Capozzalo began with a self-fulfilling mistake. Members of the Luchese crime family incorrectly suspected Peter Chiodo, a captain and long-time member of the family, of cooperating with the government. They therefore plotted to kill him. On May 8, 1991, Chiodo was shot thirteen times but survived. After the attempt on his life, Chiodo was informed by intermediaries that members of the Luchese family would kill his entire family if he cooperated with the government. In the face of these events, Chiodo decided to cooperate with the government. His family was relocated with the exception of his sister, Patricia Capozzalo, who refused to move.
Chiodo agreed with the government that he would testify against several organized crime members including Vic Amuso, the boss of the Luchese family. To intimidate Chiodo so that he would not testify, members of the Luchese family decided to murder his sister. The "hit" on Capozzalo was approved by Amuso and was to be carried out by Richard Pagliarulo, who had taken over Chiodo's role as captain of a crew. Pagliarulo's crew included the defendant Spinelli, his brother Robert, and Dino Basciano. Pagliarulo put Spinelli in charge of planning the murder. Spinelli assigned Basciano to be the shooter.
On March 10, 1992, Spinelli, Basciano, and the rest of the hit team waited for Capozzalo near her house. As Capozzalo was parking her car, Spinelli blocked her car with his van. Basciano walked up to her and fired at her through the driver's window. While he was shooting, his gun fell apart. Capozzalo was hit in the ear and the back. According to her testimony several bullets came so close that she could "feel a breeze."She survived and was then relocated by the government.
Spinelli was later arrested on charges unrelated to the attempt on Capozzalo. In prison, he associated with Frank Gioia, a member of the Luchese crime family, who later became a witness for the government and testified against Spinelli. Spinelli complained to Gioia that his contributions to the attempt on Capozzalo were not properly appreciated, given that he had not been inducted into the Luchese family and was not reimbursed for his expenses. Shortly after he complained to Gioia, he was inducted into the Luchese family. Later, in January 1994, the defendant spoke again to Gioia in prison about his role in the attempt to kill Capozzalo. According to Gioia's testimony, Spinelli complained that he wanted to plead guilty to the attempted murder, but the Luchese family would not allow it.
At the trial, the government presented the testimony of several associates of Spinelli, including Basciano and Gioia. Basciano testified in detail about the murder conspiracy, explaining that Spinelli recruited him together with Spinelli's brother Robert, and two other Luchese "soldiers" to kill Capozzalo. Spinelli provided details of how the hit team prepared to kill Capozzalo, which included learning her daily routine, testing a gun, and aborting two attempts. On cross-examination, Basciano admitted that he had a history of violent crime and had been involved in other murder plots. Gioia testified to what Spinelli had told him when they were in prison together, which corroborated Basciano's testimony. On cross, Gioia was extensively impeached by bringing out his involvement on behalf of the Luchese family, in murder, attempted murder, drug trafficking and other crimes, as well as by his lies to federal agents during the course of his cooperation.
Spinelli testified and asserted in his defense that in 1993 he refused the government's offer of an advantageous plea agreement with no additional prison time because he was innocent. The government's theory was that Spinelli refused the offer because the Luchese family would not permit him to plead guilty to the family-sponsored attempt on Capozzalo.
In support of its theory, the government cross-examined Spinelli on his affiliation with the Luchese family. Spinelli refused to testify about the Luchese family, or even use its name, contending he was shielded by the Fifth Amendment from answering questions about organized crime. The district judge had set up a procedure designed to allow Spinelli to invoke the Fifth Amendment out of the presence of the jury. Nonetheless, in many instances, Spinelli disregarded the procedure and refused to answer questions in the jury's presence.
As noted, the jury found Spinelli guilty on all counts.
Spinelli initially filed notice of appeal in June, 1999. He was then notified by the Assistant United States Attorney (AUSA) who had prosecuted his case that, prior to Spinelli's trial, Gioia had violated the terms of his cooperation agreement. The AUSA's notification stated that the prosecutors had learned of Gioia's violations from Gioia's testimony in a later unrelated state court trial, which revealed that for two years after he began cooperating with federal authorities, Gioia concealed from the federal authorities that his former fianceé's relatives were involved in several crimes, including the murder of a New York City police officer. Acknowledging that this information should have been disclosed to ...