United States District Court, E.D. New York
OPINION AND ORDER
L. IRIZARRY, Chief United States District Judge.
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.
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.
Fatico Hearing was held on August 10 and 24, 2016.
See Gov't Ex. A (“Hr'g
Tr.”).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.
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.
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
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. §
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.
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).
Findings of Fact
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. 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. Id. 18-20, 23-24.
his release from prison in 1992, Russo joined the Colombo
Family as an associateand 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 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.
The 1993 Murder of Joseph Scopo
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. 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. Id. at 34.
a few botched attempts to kill Cutolo,  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.
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
night of the murder in October 1993,  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” 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).
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).
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. 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.
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. 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.
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).
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