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United States v. Persico

United States District Court, E.D. New York

July 19, 2017

UNITED STATES OF AMERICA,
v.
MICHAEL PERSICO, et al., Defendant.

          OPINION AND ORDER

          DORA L. IRIZARRY, Chief United States District Judge.

         On June 8, 2012, Michael Persico (“Defendant”) pled guilty to the Sixth Superseding Information, which charged him with a single count of conspiracy to engage in an extortionate extension of credit, in violation of 18 U.S.C. §§ 371, 892. See Superseding Info., Dkt. Entry No. 565; Change of Plea Hr'g, Dkt. Entry No. 566 at 1. On October 30, 2014, the Court ordered a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979) (the “Fatico Hearing”) as “to those acts that the [G]overnment allege[d] they can prove by a preponderance of the evidence . . . in order to make an informed decision” for sentencing. Oct. 30, 2014 Tr. of Crim. Cause for Sent'g (“Oct. 2014 Tr.”), Dkt. Entry No. 823-1 at 4. At the time of his guilty plea and that pre-sentence conference, this case was assigned to the Hon. Sandra L. Townes, U.S.D.J. This matter was reassigned to this Court on November 24, 2015. See Nov. 24, 2015 Min. Entry.[1]

         Upon reassignment to this Court, both the Government and Defendant claimed that no Fatico hearing was necessary. However, as Defendant continued to dispute that the Government could prove certain facts by a preponderance of the evidence, this Court determined that a Fatico hearing was necessary. Specifically, Defendant contested the Government's assertions that it could prove, by a preponderance of the evidence, that he participated in: (1) the 1993 murder of Joseph Scopo; (2) loansharking; (3) extortion; (4) a conspiracy to buy and sell stolen video games; and (5) racketeering. See Gov't Jan. 19, 2015 Ltr., Dkt. Entry No. 823, at 3; Def. Jan. 21, 2015 Ltr., Dkt. Entry No. 803, at 6-7.[2]

         The Fatico Hearing was held on August 10 and 24, 2016. See Gov't Ex. A (“Hr'g Tr.”).[3]During the Fatico Hearing, the Government presented testimony from Anthony Russo (“Russo”), an acting captain of the Colombo Crime Family (“Colombo Family”) in New York City at the time of his arrest and indictment in 2011 in this District for, inter alia, participating in the murder of Joseph Scopo, receiving stolen video games, and conspiracies to commit extortionate extensions and collections of credit, illegal sports betting, and marijuana distribution. See Def. Ex. H; Hr'g Tr. at 12, 114. Defendant attempted to introduce testimony from Ronald Dwyer, a private investigator, pertaining to the physical condition of Joseph Scopo's former residence in Brooklyn at the time Scopo was murdered. Hr'g Tr. at 311-14. The Court precluded this testimony after determining that Mr. Dwyer would have no knowledge of the condition of the structure at the time of the murder over two decades ago. Id. at 314.

         After the Fatico Hearing, the Court accepted additional briefing and evidence from the parties on the alleged acts. See Gov't Fatico Hr'g Br. (“Gov't Br.”), Dkt. Entry No. 846; Def. Fatico Hr'g Br. (“Def. Br.”), Dkt. Entry No. 849; Gov't Resp. to Def. Fatico Hr'g Br. (“Gov't Resp.”), Dkt. Entry No. 853; Def. Resp. to Gov't Fatico Hr'g Br. (“Def. Resp.”), Dkt. Entry No. 854; Def. May 9, 2017 Ltr., Dkt. Entry No. 863; Gov't May 31, 2017 Ltr., Dkt. Entry No. 865.

         For the reasons set forth below, based upon Russo's testimony, which the Court finds credible, and upon due consideration of all the parties' submissions, the Court finds, by more than a preponderance of the evidence, that Michael Persico did participate in the five alleged activities. Accordingly, the Court shall consider all five activities in fashioning a reasonable sentence.

         DISCUSSION

         “[A] district court should begin all sentencing proceedings by correctly calculating the applicable [United States Sentencing Guidelines (“U.S.S.G.”)] range.” Gall v. United States, 552 U.S. 38, 49 (2007) (internal citations omitted). This calculation provides “the starting point and initial benchmark.” Id. However, the range provided by the U.S.S.G. is only advisory. See United States v. Booker, 543 U.S. 220, 245 (2005). The Court “may not presume that the Guidelines range is reasonable” for the facts and circumstances in every case. Gall, 552 U.S. at 50 (internal citations omitted). Rather, the Court must assess and consider, among other things, “the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).

         To this end, sentencing courts are permitted “to consider the widest possible breadth of information about a defendant [to] ‘ensure[] that the punishment will suit not merely the offense but the individual defendant.'” Pepper v. United States, 562 U.S. 476, 488 (2011) (quoting Wasman v. United States, 519 U.S. 559, 564 (1984)); See also United States v. Broxmeyer, 708 F.3d 132, 135 (2d Cir. 2013). This inquiry is “largely unlimited . . . as to the kind of information . . . consider[ed], or the source from which it may come.” Witte v. United States, 515 U.S. 389, 398 (1995) (internal citations and quotation marks omitted). Indeed, the Court “may consider hearsay statements, evidence of uncharged crimes, dropped counts of an indictment[, ] and criminal activity resulting in an acquittal in determining sentence.” United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987) (citing United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir. 1986)). “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.

         Any conduct considered must be proven by a preponderance of the evidence. See Witte, 515 U.S. at 401. In thi s Circuit, courts may conduct this inquiry by way of a Fatico hearing, during which, “the prosecution and the defense may introduce evidence relating to the appropriate sentence.” United States v. Lohan, 945 F.2d 1214, 1216 (2d Cir. 1991) (citing Fatico, 603 F.2d at 1053).

         I. Findings of Fact

         Russo's career in organized crime began as a teenager in the 1970s and ended with his arrest in 2011. Hr'g Tr. at 11-12. For over thirty years, he was associated with both the Gambino and Colombo Families in New York City.[4] Id. at 12-13. His association with the Colombo Family began when he was incarcerated with Theodore Persico, Jr. (“Theodore, Jr.”), the nephew of the Colombo Family Boss, Carmine Persico (“Carmine”), in Coxsackie, New York.[5] Id. 18-20, 23-24.

         Upon his release from prison in 1992, Russo joined the Colombo Family as an associate[6]and reported directly to Theodore Persico, Sr. (“Theodore, Sr.”). Id. at 23-24, 26-28, 30. This reporting structure lasted until 1993 when Theodore, Sr. and other leaders of the Colombo Family were arrested. Id. at 31-32. With the leadership decapitated, Russo, along with his close friend and fellow Colombo Family associate Frank Guerra (“Guerra”), reported to Defendant. Id. at 29, 32. Although it was unusual for individuals to report to others with the same rank, Russo explained that reporting to Defendant made sense given Defendant's familial ties to the group's leaders. Id. at 32. Russo regularly met with Defendant and others at various locations[7] in Brooklyn, New York, to discuss loansharking. Id. at 33. He consistently observed other criminal associates of Theodore, Jr. follow a similar pattern and meet with Defendant as well. Id. at 33-34. Russo reported to Defendant until Alphonse Persico (“Al”), Defendant's brother, was released from jail in 1994. Id. at 68-69.

         A. The 1993 Murder of Joseph Scopo

         When Russo joined the Colombo Family, it was in the midst of a civil war among family factions that required the organization's members to align themselves with either Carmine or Vic Orena (“Orena”), an acting boss who was trying to wrest control of the syndicate from the Persico family. Id. at 30-31; See also Def Ex. C (“Guerra Tr.”) at 186-87.[8] Russo sided with those loyal to Carmine, choosing to oppose the Orena faction led by Joseph Scopo (“Scopo”) and “Wild Bill” Cutolo (“Cutolo”). Hr'g Tr. at 30-31. Shortly after joining the Colombo Family, Russo and other Persico loyalists began plotting to kill Cutolo.[9] Id. at 34.

         Following a few botched attempts to kill Cutolo, [10] Russo mentioned the failures to Defendant who, in turn, advised that Eric Curcio (“Curcio”), another Colombo Family member, “had a line” on (i.e., knew where to find) Scopo. Id. at 35-36. Russo understood this as an instruction to contact Curcio, find Scopo, and kill him. Id. at 36. Russo followed the direction. Both he and Guerra visited Curcio, who told them that he knew where Scopo was, and asked if they would be willing to assemble “a crew” for the murder. Id. at 38. Russo and Guerra agreed to do so. Id. Shortly after that meeting, Russo and Guerra told Defendant of their plan to kill Scopo and asked for weapons. Id. at 40. Defendant directed them to “Smiley, ” another Colombo Family associate, who would “bring them a bag” of guns. Id. Later that day, Guerra received a black duffle bag containing a “MAC-10 with a silencer” and “a couple of pistols” from Smiley. Id. at 40-41.

         Separate from Defendant's role in pushing the murder forward, Theodore, Jr. actively advocated for it as well. See Id. at 42, 45-46. In fact, during Russo's testimony, he recalled a particularly notable meeting during the summer of 1993. That summer, Theodore, Jr., who was incarcerated at the time, was transported to Brooklyn so that he could attend his grandmother's funeral. See Id. at 45-46; Gov't Ex. 861 (death certificate of Eleanor Avena); Gov't Ex. 862 (bill for funeral services for Eleanor Avena); Gov't Ex. 863 (a manifest noting that an inmate named Persico was transported to Brooklyn for funeral services on August 18, 1993). While meeting with his family and friends at the funeral home, Theodore, Jr. pressured Russo and others to murder Scopo. Hr'g Tr. at 46; See also Superseding Info., Dkt. Entry No. 562; Theodore, Jr. Guilty Plea, Dkt. Entry No. 563 (pleading guilty to a single count of conspiracy to murder Joseph Scopo in-aid-of racketeering).

         On the night of the murder in October 1993, [11] the “crew” consisted of Russo, Guerra, Curcio, Johnny Pappa (“Pappa”), and John Sparacino (“Sparacino”) (collectively, the “Hit Crew”). Hr'g Tr. at 46-47. The murder occurred outside Scopo's home, around 111th or 110th Street and 109th Avenue, in Ozone Park, Queens. Id. at 52. Curcio provided Scopo's location. Id. The plan included the use of three vehicles: Curcio and Guerra each drove a “crash”[12] car and Russo drove the third (the “Hit Car”). Id. at 52-53. Pappa and Sparacino, the designated shooter who was armed with the MAC-10 Defendant helped procure, rode in the Hit Car. Id. at 53. While he could not recall the make or model of the car he drove during the murder, Russo testified that the Hit Car was a stolen, brown or beige, four-door vehicle. Id. at 53-54; Gov't Ex. 17(c) (a photograph of a brown, four-door Buick with a shattered windshield found on 106th Street after the murder). It was started with a screwdriver. Hr'g Tr. at 54; See also Gov't Ex. 20(d) (a photograph of the Buick's driver's seat, showing an exposed steering column and screwdriver).

         That night, the Hit Crew waited outside their cars at a corner near Scopo's home. Hr'g Tr. at 54. Eventually, Curcio saw Scopo's car approaching, and the men entered their designated vehicles. Id. Russo testified that Scopo appeared in a small, light-colored Nissan Altima (the “Scopo Car”). Id.; See also Gov't Exs. 18(a), 18(c) (photographs of a white Nissan Altima with shattered windows and bullet damage found on 110th Street after the murder). Scopo was in the front passenger seat, and an unidentified youth drove the vehicle. Hr'g Tr. at 55. Russo planned to pull the Hit Car up alongside the Scopo Car, have Sparacino “kick [his] door open and . . . empty that [MAC-10] . . . into the car.” Id. at 54. As the Scopo Car was being parked, Russo pulled alongside, and positioned the backend of the Hit Car's rear passenger door along the Scopo Car's front bumper. Id. at 55. Sparacino then opened the rear passenger door and fired the MAC-10 into the Scopo Car. Id. at 55-57; See also Gov't Exs. 21(e), 21(i) (photographs of the Altima's rear passenger side and backseat). As Sparacino fired, a bullet “came through the back window of” the Hit Car and went through its windshield. Hr'g Tr. at 56; See also Gov't Ex. 20(c) (photograph of the Buick's shattered rear windshield); Gov't Ex. 20(g) (photograph of bullet casings on the Buick's backseat).

         Russo fled the scene and drove to a prearranged spot a few blocks away, where the Hit Crew planned to abandon the Hit Car. Hr'g Tr. at 57; See also Gov't Ex. 17(c). After parking, Russo told Sparacino to leave the MAC-10 in the Hit Car, per Defendant's direction.[13] Hr'g Tr. at 57-58; See also Gov't Exs. 19(a), 19(b) (photographs of a weapon with a silencer found in the backseat of the Buick). Russo also testified that he took a ski mask off Sparacino's head, and threw it, along with a pair of gloves he was wearing, into a nearby bush. Hr'g Tr. at 57-58. Guerra pulled up nearby and the group fled the area. Id. at 58. Scopo died later that night. Id.

         A few days after the murder, Russo was approached by members of the Colombo and Lucchese Families who asked about the murder. Id. at 59. Although Russo denied any knowledge of the incident, both he and Guerra complained to Defendant that Curcio was speaking openly about the murder.[14] Id. at 59-61. Defendant ordered Russo and Guerra to speak with Curcio about his indiscretions, directly. Id. at 61. Additional testimony from Russo also demonstrated that those persons who had participated in Scopo's murder, and were talking about it or complaining that they were not properly recognized or compensated for the job, were murdered. Id. at 63-64.

         Defendant suggests that much of Russo's testimony consists of outright lies, particularly as to: (1) whether Russo carried a gun during the murder (Def. Br. at 16-17); (2) what Russo did with his gloves and Sparacino's ski mask after the murder (Id. at 16); (3) when Pappa first became involved in the plot (Id. at 17); (4) when the Hit Car was stolen (Id. at 19); (5) the date and circumstances of Theodore Jr.'s grandmother's funeral (Id. at 17); (6) the failed attempt to kill Scopo at his home and whether Russo recognized him (Id. at 17-18); (7) Orena's liberty status in 1992 (Id. at 16); and (8) Defendant's role (Id. at 19).

         The first seven points have no bearing on Defendant's role in the murder. Inconsistencies about tangential details unconnected to Defendant's participation, such as whether Russo carried a gun while driving the Hit Car (it is undisputed that he was not the shooter) or when Eleanor Avena's funeral was and who was near Russo when Theodore, Jr. approached him (it is undisputed that the meeting occurred), more than two decades after the fact, are irrelevant. The Court finds unavailing Defendant's eighth point, that Russo is incredible because, during his testimony in Guerra, he ...


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