CORE TERMS: conspiracy,
disqualification, murder, racketeering, defendants-appellants, organized
crime, expert testimony, new trial, indictment, mere presence,
prosecutor, tape, unsworn, juror, conversation, motive, house counsel,
apartment, short-hand, sequestration, convicted, involvement,
membership, predicate, Sixth Amendment, conspiracy to murder, fair
trial, disqualified, instructing, cross examination
LexisNexis(R) Headnotes
Show
Headnotes
COUNSEL: JOHN GLEESON, JAMES ORENSTEIN, Assistant United States
Attorneys, New York, New York (Mary Jo White, United States Attorney,
Eastern District of New York, New York, New York; David C. James,
Assistant United States Attorney, Eastern District of New York, New
York, New York, of counsel), for Appellee.
CHARLES OGLETREE, Boston, Massachusetts (Ephraim Margolin, Margolin,
Arguimbau & Battson, San Francisco, California, of counsel), for
Defendant-Appellant John Gotti.
MICHAEL E. TIGAR, Austin, Texas (Dennis P. Riordan, Riordan & Rosenthal,
San Francisco, California, Michael Kennedy, Michael Kennedy, P.C., New
York, New York, of counsel) for Defendant-Appellant Frank Locascio.
JUDGES: Before: KEARSE, MINER, and ALTIMARI, Circuit
[**2] Judges.
Judge Kearse concurs in a separate opinion.
OPINIONBY: ALTIMARI
OPINION:
[*929]
ALTIMARI, Circuit Judge:
Defendants-appellants John Gotti and Frank Locascio appeal from
judgments of conviction entered on June 23, 1992 in the United States
District Court for the Eastern District of New York (Glasser, J.). They
also appeal from the district court's October 30, 1992 order denying
their motion for a new trial and a subsequent denial of a renewed motion
for a new trial.
Gotti and Locascio were convicted after a jury trial of substantive and
conspiracy violations of the Racketeer Influenced Corrupt Organizations
Act,
18 U.S.C. § 1962(c) and (d) (1988), and various predicate acts
charged as separate counts. They were each principally sentenced to life
imprisonment. The charges stemmed from their involvement with the
Gambino Crime Family of La Cosa Nostra, an extensive criminal
organization.
On appeal, Gotti and Locascio raise numerous challenges to their
convictions and the subsequent denial of their motion for a new trial.
For the reasons stated below, we affirm the judgments of the district
court.
BACKGROUND
On July 18, 1991, a grand jury in the Eastern District
[**3] of New
York returned a thirteen count superseding indictment against Gotti and
Locascio. The indictment also named two other defendants, Salvatore
Gravano and Thomas Gambino, who are not parties to this appeal. All four
defendants were charged with violating the Racketeer Influenced and
Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1962(c)-(d) (1988), for unlawfully conducting and
participating in the affairs of a criminal enterprise through a pattern
of racketeering activity. The charged enterprise was the Gambino
Organized Crime Family of La Cosa Nostra ("the Gambinos," "The Gambino
Family," or "the Gambino Crime Family"). Gotti was charged as the head
of the organization, and Locascio was accused of being the "underboss,"
or second-in-command.
Gravano was charged as the "consigliere," or advisor, to Gotti.
Following the indictment, Gravano pleaded guilty to a superseding
racketeering charge and testified at length at trial against Gotti and
Locascio. The charges against Gambino, a "captain" in the organization,
were severed.
Counts One and Two of the indictment charged Gotti and Locascio with the
substantive and conspiracy violations of RICO.
[**4] Many of
the crimes charged as racketeering acts in the RICO counts were also the
basis of separate counts in the indictment. Gotti was charged with the
following predicate acts: the conspiracy to murder and the murder of
Paul Castellano; the murder of Thomas Bilotti; the conspiracy to murder
and the murder of Robert DiBernardo; the conspiracy to murder and the
murder of Liborio Milito; and obstruction of justice at the Thomas
Gambino trial. Gotti and Locascio were both charged with the following
predicate acts: the conspiracy to murder and the murder of Louis DiBono;
the conspiracy to murder Gaetano Vastola; conducting an illegal gambling
business in Queens, New York; conducting an illegal gambling business in
Connecticut; conspiracy to make extortionate extensions of credit; and
obstruction of justice in the investigation of the Castellano murder.
Gotti and Locascio were also
[*930]
charged in separate counts for a conspiracy to obstruct grand jury
investigations, bribery of a public servant, and a conspiracy to defraud
the United States.
Gotti and Locascio were tried before a sequestered anonymous jury in the
United States District Court for the Eastern District of New York
(Glasser,
[**5] J.).
Prior to trial, there were numerous government and defense motions, most
of which need not be recounted at length. The motions that are the
subject of this appeal included: the government's successful motion to
sequester an anonymous jury; the government's successful motion to
disqualify counsel for both Gotti and Locascio for various conflicts of
interest; and Locascio's unsuccessful motion to sever his trial from
Gotti's.
Trial began in February 1992. The government's proof to support the
allegations that Gotti and Locascio had been in command of an extensive
criminal enterprise was comprised mostly of lawfully intercepted
tape-recorded conversations of the defendants-appellants and other
alleged members of the Gambino Family. The government introduced tape
recordings from four different locations over an eight-year period.
The most significant evidence consisted of conversations intercepted at
247 Mulberry Street in New York during the period from late 1989 until
early 1990. The government had installed three listening devices in that
building: in the Ravenite Social Club on the first floor, in a hallway
behind the club's rear door, and in an apartment two stories above
[**6] the club
("the Ravenite Apartment"). It was this last location that proved the
most fruitful for the government, and the most damaging for the
defendants-appellants. In the discussions in the Ravenite Apartment,
Gotti, Locascio, and other Gambino Family members discussed various
illegal acts. These discussions formed the core of the proof against the
defendants-appellants at trial. Another major source of evidence was the
testimony of Salvatore Gravano, who cooperated with the government
following the indictment. As a high-level insider in the Gambino Family,
Gravano's testimony was especially damaging. The tape recordings,
combined with Gravano's testimony, presented to the jury a picture of a
large-scale enterprise involved in various criminal activities. The jury
heard evidence on the structure and inner workings of the Gambino
Family, and learned of the miscellaneous crimes with which Gotti and
Locascio were charged: murders, obstruction of legal proceedings,
conspiracies, gambling operations, and loansharking activities. It is
unnecessary to recount the evidence in detail at this point, since much
of it is unnecessary for full understanding of the issues on appeal.
Following
[**7] a
six-week trial, the jury found Gotti guilty of all charges in the
indictment. Locascio was found guilty of all charges except the count
relating to a gambling operation in Queens, New York. Each
defendant-appellant was sentenced by the district court to life in
prison on the RICO and murder counts, and the statutory maximum prison
terms on all remaining counts, with all sentences to run concurrently.
The court also imposed five years of supervised release, a $ 250,000
fine on each defendant, and mandatory special assessments.
Several months after sentencing, government attorneys discovered
previously undiscovered reports that potentially pertained to Gravano's
credibility. The government turned over those reports to the
defendants-appellants, who subsequently moved for a new trial pursuant
to
Fed. R. Crim. P. 33, on the ground that the government had not
disclosed relevant evidence under
Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
This motion and a later renewed motion were both denied by the district
court.
On appeal, Gotti and Locascio raise myriad challenges to their
convictions and to the subsequent denial of their new trial motions.
They contend that
[**8] the
district court erred in: (1) disqualifying counsel for both Gotti and
Locascio for conflicts of interest; (2) allowing certain government
expert testimony; (3) instructing the jury; (4) allowing evidence of
other crimes that were inadmissible against them; (5) impanelling an
anonymous sequestered jury; (6) refusing to sever Locascio's trial; and
(7) denying a motion for a new
[*931] trial
based on the government's suppression of material relating to Gravano's
credibility. The defendants-appellants also argue that they were denied
a fair trial based on the government's suppression of exculpatory
evidence and prosecutorial misconduct.
For the following reasons, we affirm the judgment of the district court.
I. Disqualification of Counsel
Prior to trial, the district court disqualified attorneys for both Gotti
and Locascio. Gotti and Locascio now contend that these
disqualifications were unwarranted and violated their Sixth Amendment
rights.
A. Applicable Law
The Sixth Amendment to the Constitution provides that "in all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." U.S. Const. amend. VI. The
accused, however,
[**9] does not
have the absolute right to counsel of her own choosing. See
Wheat v. United States, 486 U.S. 153, 159, 100 L. Ed. 2d 140, 108 S. Ct.
1692 (1988). As the Court stated in Wheat,
while the right to select and be represented by one's preferred
attorney is comprehended by the Sixth Amendment, the essential aim
of the Amendment is to guarantee an effective advocate for each
criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers.
Id. Similarly, although a criminal defendant can waive her Sixth
Amendment rights in some circumstances, that right to waiver is not
absolute, since "federal courts have an independent interest in ensuring
that criminal trials are conducted within the ethical standards of the
profession and that legal proceedings appear fair to all who observe
them."
Id. at 160. The question of disqualification therefore implicates
not only the Sixth Amendment right of the accused, but also the
interests of the courts in preserving the integrity of the process and
the government's interests in ensuring a just verdict and a fair trial.
See id.
In deciding a motion
[**10] for
disqualification, the district court recognizes a presumption in favor
of the accused's chosen counsel, although this presumption can be
overcome by a showing of an actual conflict or potentially serious
conflict. See
id. at 164;
United States ex rel. Stewart v. Kelly, 870 F.2d 854, 856 (2d Cir.
1989). We accord the district court's decision to disqualify an
attorney "substantial latitude," and review the decision only for an
abuse of discretion.
Wheat, 486 U.S. at 163-64.
There are many situations in which a district court can determine that
disqualification of counsel is necessary. The most typical is where the
district court finds a potential or actual conflict in the chosen
attorney's representation of the accused, either in a multiple
representation situation, see
Wheat, 486 U.S. at 159-60;
United States v. DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987);
United States v. Curcio, 680 F.2d 881, 886 (2d Cir. 1982), or
because of the counsel's prior representation of a witness or
co-defendant,
[**11] see
Stewart, 870 F.2d at 856-57. Courts have also considered
disqualification where the chosen counsel is implicated in the
allegations against the accused and could become an unsworn witness for
the accused, see
United States v. Arrington, 867 F.2d 122, 129 (2d Cir.), cert.
denied,
493 U.S. 817 (1989);
United States v. Kwang Fu Peng, 766 F.2d 82, 87 (2d Cir. 1985), or
where the chosen counsel is somehow unable to serve without unreasonable
delay or inconvenience in completing the trial, see
United States v. Scopo, 861 F.2d 339, 344 (2d Cir. 1988), cert.
denied,
490 U.S. 1048, 104 L. Ed. 2d 426, 109 S. Ct. 1957 (1989).
In this case, the government moved to disqualify attorneys for both
Gotti and Locascio on multiple theories. We consider each of the
defendants-appellants in turn.
B. Gotti
1. Background
Bruce Cutler served as Gotti's attorney in previous criminal trials in
federal court. Prior to trial, the government moved to disqualify
[*932]
Cutler from acting as Gotti's attorney. Although the motion also dealt
with the disqualification
[**12] of
other Gotti attorneys, only the disqualification of Cutler has been
challenged on appeal.
The district court granted the motion to disqualify on several grounds.
United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991). Judge
Glasser, in a thoughtful and well-reasoned opinion, found that Cutler
had acted as "house counsel" to the Gambino Crime Family by receiving
"benefactor payments" from Gotti to represent others in the criminal
enterprise.
Id. at 560. The district court based this conclusion on excerpts
from the government's taped transcripts, which left "little doubt that
Gotti paid significant sums of money for legal services rendered to
others." Id.
The district court further determined that Cutler's participation in
government-taped conversations at which illegal activity was discussed
would impair his representation of Gotti.
Id. at 562-63. Specifically, the court noted that Cutler's mere
presence at trial could make him an "unsworn witness" before the jury in
explaining his own conduct and interpreting Gotti's conversations on the
tapes.
Id. at 563. [**13] Even
if Gotti waived the conflict, and even if the government did not intend
to call Cutler as a witness, the district court found that Cutler's
representation would still compromise the integrity of the proceeding.
Id.
Third, the district court found that Cutler's prior representation of
Michael Coiro, a potential government witness, gave rise to a conflict
of interest. Id. The court reasoned that this conflict mandated
disqualification both because Cutler was privy to events surrounding an
obstruction charge, and because Cutler's cross examination of Coiro at
trial would be circumscribed by the prior representation.
Id. at 563-65.
Finally, the district court also found disqualification warranted
because of the implication by Gotti in taped conversations that he had
paid Cutler money "under the table."
Id. at 565. This made Cutler a potential accomplice as well as a
potential witness to Gotti's tax fraud.
In conclusion, the district court noted that it was mindful that
disqualification is a drastic remedy for conflict problems, but that no
less severe alternatives were viable.
Id. at 566. [**14] The
court therefore held that "the grave peril the continued representation
by [Cutler] poses to the integrity of the trial process" mandated
disqualification. Id.
Gotti now appeals the district court's ruling, arguing that the
disqualification was an abuse of discretion. We disagree, and affirm the
disqualification on two grounds: (1) Cutler's role as house counsel to
the Gambino Crime Family; and (2) Cutler's anticipated role as an
"unsworn witness" for Gotti had he been allowed to serve. We note that,
importantly, Gotti does not challenge the effectiveness of his
replacement trial counsel. Although the government cannot justify an
otherwise unwarranted disqualification by arguing that the
disqualification did not result in the accused receiving ineffective
assistance of counsel, see
United States v. Diozzi, 807 F.2d 10, 16 (1st Cir. 1986), the fact
that Gotti received more than competent representation is an additional
consideration strongly supporting the district court's otherwise
entirely correct ruling.
2. Cutler's Role as House Counsel
Gotti argues that the facts before the district court did not merit the
conclusion that Cutler had
[**15] acted
as "house counsel" to the Gambino Crime Family. Rather, Gotti argues
that Cutler was merely his personal attorney.
Ethical considerations warn against an attorney accepting fees from
someone other than her client. As we stated in a different context, the
acceptance of such "benefactor payments" "may subject an attorney to
undesirable outside influence" and raises an ethical question "as to
whether the attorney's loyalties are with the client or the payor."
In re Grand Jury Subpoena Served Upon John Doe, 781 F.2d 238, 248 n.6
(2d Cir. 1985) (in banc), cert. denied,
475 U.S. 1108, 89 L. Ed. 2d 913, 106 S. Ct. 1514 (1986). In this
context, proof of house counsel can be used by the government to help
establish the existence of the criminal enterprise under RICO, by
showing the connections among
[*933] the
participants. See
United States v. Simmons, 923 F.2d 934, 949 (2d Cir.) (holding that
government can use evidence of benefactor payments to prove existence of
enterprise), cert. denied,
114 L. Ed. 2d 104, 111 S. Ct. 2018 (1991);
United States v. Castellano, 610 F. Supp. 1151 (S.D.N.Y. 1985) [**16]
(disqualifying attorney because attorney's acceptance of benefactor
payments could be used to prove existence of enterprise).
Contrary to Gotti's assertions, there was sufficient evidence for the
district court to determine that Cutler had acted as house counsel to
the Gambino Crime Family. For example, the court cited one conversation
in which Gotti, in the time-honored tradition of legal clients,
complained about his legal fees:
I gave youse [sic] 300,000 in one year. Youse [sic] didn't defend
me. I wasn't even mentioned in none of these [expletive deleted]
things. I had nothing to do with none of these [expletive deleted]
people. What the [expletive deleted] is your "beef?" . . . Before
youse [sic] made a court appearance, youse [sic] got 40,000, 30,000
and 25,000. That's without counting [attorney] John Pollok. . . .
You standing there in the hallway with me last night, and you're
plucking me. . . . "Tony Lee's" lawyer, but you're plucking me. I'm
paying for it. . . . Where does it end? Gambino Crime Family? This
is the Shargel, Cutler and who do you call it Crime Family.
771
F. Supp. at 555. Gotti thus demonstrated that he was incurring the
[**17] legal
fees for representation of others. As support for disqualification, the
government indicated that it would introduce the testimony of Michael
Coiro, who would testify that he had paid nothing to Cutler and another
attorney for their services to him, presumably because Gotti paid for
his defense.
Cutler's role as house counsel to the Gambinos raised a credible issue
of the ethical propriety of his representation of Gotti in this case. An
attorney cannot properly serve two masters, and the evidence before the
district court indicated that Cutler had represented the Gambino Family
as a whole. Moreover, Cutler's status as house counsel was potentially
part of the proof of the Gambino criminal enterprise. We cannot say that
the district court abused its discretion in disqualifying Cutler on this
basis, considering the volume of proof of Cutler's proximity to the
affairs of the Gambino Crime Family offered by the government in this
case.
3. Cutler's Role as an Unsworn Witness
An even stronger basis for disqualification, however, was the
possibility that Cutler would function in his representational capacity
as an unsworn witness for Gotti. An attorney acts as an unsworn witness
[**18] when
his relationship to his client results in his having first-hand
knowledge of the events presented at trial. If the attorney is in a
position to be a witness, ethical codes may require him to withdraw his
representation. See Model Code of Professional Responsibility DR
5-102(A) (1992).
Even if the attorney is not called, however, he can still be
disqualified, since his performance as an advocate can be impaired by
his relationship to the events in question. For example, the attorney
may be constrained from making certain arguments on behalf of his client
because of his own involvement, or may be tempted to minimize his own
conduct at the expense of his client. Moreover, his role as advocate may
give his client an unfair advantage, because the attorney can subtly
impart to the jury his first-hand knowledge of the events without having
to swear an oath or be subject to cross examination. See
United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir. 1984)
(requiring disqualification where attorney would be essentially acting
as both an advocate and a witness);
United States v. Cunningham, 672 F.2d 1064, 1075 (2d Cir. 1982) [**19]
(upholding disqualification where an attorney would act as an unsworn
witness for defendant);
Castellano, 610 F. Supp. at 1167 (finding that attorney's appearance
at counsel table would itself distort the factfinding process).
This is different from the situation in Wheat, since the conflict in
Wheat -- multiple representation -- was a conflict inuring to the
detriment of the accused. In such a case, waiver by the accused of the
conflict can
[*934]
conceivably alleviate the constitutional defect, so long as the
representation by counsel does not seriously compromise the integrity of
the judicial process. When an attorney is an unsworn witness, however,
the detriment is to the government, since the defendant gains an unfair
advantage, and to the court, since the factfinding process is impaired.
Waiver by the defendant is ineffective in curing the impropriety in such
situations, since he is not the party prejudiced. See
Cunningham, 672 F.2d at 1074-75.
The district court disqualified Cutler partially on the ground that his
representation of Gotti would place him in the role of such an unsworn
witness. The clearest support
[**20] for
this finding was Cutler's presence during the Ravenite Apartment
discussions taped by the government. The government was legitimately
concerned that, when Cutler argued before the jury for a particular
interpretation of the tapes, his interpretation would be given added
credibility due to his presence in the room when the statements were
made. This would have given Gotti an unfair advantage, since Cutler
would not have had to take an oath in presenting his interpretation, but
could merely frame it in the form of legal argument.
Gotti argues, however, that the district court erred in disqualifying
Cutler where the government had no intention of calling Cutler. He also
maintains that Cutler's presence and participation on the government's
tapes could have been redacted to eliminate references to and statements
by Cutler, thereby eliminating the unsworn witness problem. The first
contention is meritless, since the district court explicitly and
correctly noted that "whether the government will or will not call . . .
Cutler . . . has no significance for this motion."
771 F. Supp. at 562. The second contention is equally unavailing,
since the district court
[**21]
explicitly found that redaction of the tapes would have eviscerated the
government's case. We are not in a position to second-guess the district
court's clearly supported factual findings on review. Moreover, we agree
with the district court that the government's case should not be
unfairly impaired so that an accused can continue with conflicted
counsel.
The unsworn witness problem arises not only in relation to the Ravenite
tapes, but to other grounds cited by the district court in support of
disqualification. For example, the court found that Gotti's references
to Cutler's acceptance of fees "under the table" were relevant to the
government's case on the tax fraud count. Had Cutler argued Gotti's
defense to that count, he would not only have had a conflict of interest
but he would have been arguing as to events in which he was allegedly
involved.
We are aware that disqualification is a drastic remedy to the unsworn
witness problem. We are also, however, cognizant that this is an unusual
case, in that Cutler had allegedly entangled himself to an extraordinary
degree in the activities of the Gambino Crime Family: he is recorded on
government tapes when discussions of allegedly illegal
[**22]
activity took place; he is allegedly involved in the tax fraud count
against Gotti; his role as house counsel could be used to prove the
criminal enterprise; and his representation of government witnesses
caused a conflict with his representation of Gotti. Although we are
cognizant of the right of the accused to secure representation, we are
also conscious of the institutional interest in protecting the integrity
of the judicial process. If an attorney will not perform his ethical
duty, it is up to the courts to perform it for him. Bruce Cutler had no
place representing John Gotti in this case, and the district court
properly determined that he should be disqualified.
C. Locascio
Locascio challenges the district court's disqualification of attorney
George Santangelo, arguing that the district court abused its discretion
in disqualifying Santangelo. Santangelo was disqualified for much the
same reasons as Cutler: (1) because Santangelo was house counsel to the
Gambino Crime Family; and (2) because Santangelo could conceivably
become an unsworn witness if he represented Locascio.
1. Background
On January 6, 1992, thirteen months after Locascio's indictment,
Santangelo
[**23] filed
a notice
[*935] of
appearance on behalf of Locascio. The government quickly moved for
disqualification. The motion was argued on January 17, 1992 and granted
four days later.
United States v. Gotti, 782 F. Supp. 737 (E.D.N.Y. 1992).
The district court began by reviewing the evidence presented by the
government that Santangelo was house counsel to the Gambino Family. The
court noted that Gravano was expected to testify that, after
arraignment, Gotti had stated to him that Gotti was going to assign
Santangelo to represent either Gravano or Locascio. Gravano was also
expected to testify that Gotti controlled the actions of attorneys
answerable to him, in the interests not of the individual clients but of
the Gambino Family. The court found that this testimony would support
the inference that Santangelo was "answerable to Gotti," which was
probative of the charged RICO enterprise. The court also reviewed
intercepted conversations presented by the government that supported
Gravano's allegations that Gotti controlled Santangelo. The district
court concluded:
Santangelo's relationship to Gotti and to Gotti's associates is
properly the object of proof by [**24] the
government in its case in chief. But, as with Cutler, . . .
Santangelo cannot present himself as counsel for the defendants when
his relationship to those defendants is itself an issue under the
consideration of the jury. His presence at counsel table could
readily serve as a signal to the jury that the court discounts the
government's proof on this point -- that the court does not believe
this evidence. Moreover, Santangelo could not argue against the
existence of the charged RICO enterprise without becoming an unsworn
witness.
Id.
at 741.
2. Discussion
We have already discussed the applicable law on the issue of counsel
disqualification. See supra § I.A. Locascio offers the same arguments
that we rejected in our discussion of the disqualification of Bruce
Cutler. Simply put, Locascio recharacterizes the record and disagrees
that the government proffered evidence to the district court that merits
disqualification of Santangelo.
As in our discussion of Cutler's disqualification, we review the
district court's rulings only for an abuse of discretion.
Wheat, 486 U.S. at 163-64;
Stewart, 870 F.2d at 856. [**25] Here,
the district court specifically found that Gravano's testimony and the
intercepted conversations substantiated the argument that Santangelo was
house counsel. This raised two serious conflicts of interest: first,
that Santangelo's previous representations of Gambino Family members
would be used to prove the existence of the enterprise; and second, that
his loyalty to Locascio would be compromised by his relationship to
Gotti. These findings were supported in the record, and Locascio's
recharacterization of the record does not compel us to reverse them.
As discussed previously, Locascio's Sixth Amendment concerns are not the
only interests at stake here: the district court has an independent duty
to protect the integrity of the judicial process, and the government has
its own fair trial interests that should not be unnecessarily impaired
so that Locascio can enjoy the services of ethically compromised
counsel. This is especially true in these circumstances, since Locascio
suffered no prejudice from the disqualification of Santangelo. Although
actual prejudice is not determinative of the propriety of a
disqualification, it is worth noting that this is not a case where an
attorney
[**26] worked
on a case for months only to be disqualified on the eve of trial.
Santangelo filed his first notice of appearance on January 6, 1992, and
was disqualified fifteen days later. Locascio cannot argue this
disqualification impacted his ability to prepare for trial.
D. Conclusion
Although disqualification is a drastic measure, the district court is in
the best position to evaluate what is needed to ensure a fair trial.
Here, the district court made careful findings of fact on each
disqualification, and supported its decisions with well-reasoned
opinions. We conclude that the district court properly exercised its
discretion in disqualifying Bruce Cutler and George Santangelo.
[*936] II.
Admission of Expert Testimony
Gotti and Locascio both contend that the district court committed
reversible error in admitting the testimony of government experts to
assist the jury in understanding the structure of organized crime
families. More specifically, they principally challenge various facets
of FBI Agent Lewis Schiliro's testimony, arguing that: (1) Schiliro's
testimony was too broad and went beyond the scope of expert testimony;
(2) he was not properly qualified as an expert; (3)
[**27] his
use of hearsay and un-introduced evidence to substantiate his opinions
violated
Fed. R. Evid. 703, as well as the Confrontation Clause; and (4) the
availability of similar testimony by an accomplice witness rendered his
testimony unnecessary.
A. Background
At trial, Special Agent Schiliro testified at great length on the nature
and function of organized crime families, imparting the structure of
such families and disclosing the "rules" of the La Cosa Nostra. For
example, Schiliro testified that a "boss" must approve all illegal
activity and especially all murders, and that the functions of the
"consigliere" and "underboss" are only "advisory" to the "boss." In
addition, as part of his testimony, he interpreted the numerous
surreptitiously taped conversations introduced into evidence, and
identified the individuals speaking by their voices. Schiliro
specifically named John Gotti as the boss of the alleged Gambino Family
and Gravano as the consigliere. Additionally, he identified, together
with their titles, ranks, and functions, numerous members and associates
of the Gambino Family and other criminal organizations. When pressed
about his sources for individuals' titles,
[**28] ranks,
and functions, Schiliro admitted that his sources of information were
not necessarily before the court.
B. Discussion
Under the Federal Rules of Evidence, an expert is permitted to testify
in the form of an opinion or otherwise when that testimony would "assist
the trier of fact to understand the evidence or to determine a fact in
issue."
Fed. R. Evid. 702. In determining whether such evidence will assist
the jury, the district court must make a "'common sense inquiry'" into
"'whether the untrained layman would be qualified to determine
intelligently and to the best possible degree the particular issue
without enlightenment from those having a specialized understanding of
the subject involved in the dispute.'"
Fed. R. Evid. 702, advisory committee note, (quoting Ladd, Expert
Testimony, 5 Vand. L. Rev. 414, 418 (1952)), quoted in
United States v. Onumonu, 967 F.2d 782, 788 (2d Cir. 1992). In
applying this standard, the district court has broad discretion
regarding the admission of expert testimony, and this Court will sustain
the admission unless "manifestly erroneous."
United States v. DiDomenico, 985 F.2d 1159, 1163 (2d Cir. 1993); [**29]
United States v. Rivera, 971 F.2d 876, 887 (2d Cir. 1992).
Gotti and Locascio contend that the district court erred in admitting
Schiliro's testimony for several reasons. The thrust of their argument
is that Schiliro did not actually testify as an expert, but rather was
simply a conduit allowing inadmissible evidence and arguments to flow
into the court. They assert that Schiliro's testimony was too broad,
sweeping, and unsubstantiated to be admissible. We will consider their
specific points in turn.
1. Challenge to Scope of Expert Testimony
The defendants-appellants challenge the admission of expert testimony on
the inner workings of the Gambino Family as being outside the scope of
expert testimony. We have, however, previously upheld the use of expert
testimony to help explain the operation, structure, membership, and
terminology of organized crime families. See
United States v. Daly, 842 F.2d 1380, 1388 (2d Cir.), cert. denied,
488 U.S. 821 (1988); see also
United States v. Skowronski, 968 F.2d 242, 246 (2d Cir. 1992)
(upholding expert testimony of
[**30]
government agents explaining organized crime jargon);
United States v. Tutino, 883 F.2d 1125, 1134 (2d Cir. 1989) (same),
cert. denied,
493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990);
United States v. Ardito, 782 F.2d 358, 363 [*937] (2d.
Cir.) (same), cert. denied,
475 U.S. 1141 (1986);
United States v. Gallo, 118 F.R.D. 316, 317-18 (E.D.N.Y. 1987) (FBI
agents could testify as experts as to methods of operation of organized
crime). Other circuits considering the issue are in agreement. See
United States v. Pungitore, 910 F.2d 1084, 1148-49 (3d Cir. 1990)
(upholding testimony of agent who testified about structure of organized
crime families), cert. denied,
111 S. Ct. 2009 (1991);
United States v. Angiulo, 847 F.2d 956, 973-75 (1st Cir.) (same),
cert. denied,
488 U.S. 852 (1988).
In Daly, this Court confronted a similar claim that a district court
committed reversible error in admitting expert testimony on the
structure of organized crime
[**31]
families. There, the government agent who testified "identified the five
organized crime families that operate in the New York area; he described
their requirements for membership, their rules of conduct and code of
silence, and the meaning of certain jargon, . . . and he described how,
in general, organized crime has infiltrated labor unions."
842 F.2d at 1388. Additionally, the expert identified voices on
surveillance tapes. In sustaining the admission of such testimony, we
explained that such expert testimony "was relevant to provide the jury
with an understanding of the nature and structure of organized crime
families." Id. We further added that there was "no question that there
was much that was outside the expectable realm of knowledge of the
average juror." Id.
We continue to believe that despite the unfortunate fact that our
society has become increasingly familiar with organized crime and its
activities from such sources as newspapers, movies, television, and
books, it is still a reasonable assumption that jurors are not well
versed in the structure and methods of organized crime families.
Moreover, much of the information gleaned from such
[**32]
sources may be inaccurate. Consequently, the subject matter of Agent
Schiliro's testimony, namely the structure and operations of organized
crime families, was properly admitted.
2. Schiliro's Qualifications as an Expert
The defendants-appellants argue that Schiliro was not properly qualified
as an expert, since his testimony required knowledge of linguistics, the
sociology of crime, tape recording technology, and voice analysis. Gotti
and Locascio contend that because he was not an expert in any of those
areas, he was not qualified to interpret tapes or give his opinion on
the Gambino Family structure.
This argument ignores the fact that Schiliro had been an FBI agent for
seventeen years, and for five years had been on the FBI's Organized
Crime Program, a squad that investigated only organized crime cases. For
more than two years, he was the supervisor of the Organized Crime
Program. Rule 702 only requires that an expert witness have "scientific,
technical, or other specialized knowledge" gained through "knowledge,
skill, experience, training, or education."
Fed. R. Evid. 702. Because Schiliro's background qualifies as
"specialized knowledge," the district court did not err
[**33] in
qualifying him as an expert. See
United States v. Simmons, 923 F.2d 934, 946 (2d Cir.) (holding that
a veteran DEA agent was "well-suited" to offer expert testimony about
coded narcotics terminology), cert. denied,
114 L. Ed. 2d 104, 111 S. Ct. 2018 (1991);
United States v. Roldan-Zapata, 916 F.2d 795, 804-05 (2d Cir. 1990)
(holding that a narcotics investigator was properly qualified to testify
about "the narcotics-related nature" of items found in a defendant's
apartment and about "drug trafficking techniques generally"), cert.
denied,
499 U.S. 940, 113 L. Ed. 2d 453, 111 S. Ct. 1397 (1991). Schiliro
did not need to be a voice analysis expert to be able to recognize the
defendants-appellants' voices on the tapes, nor did he need a
linguistics degree to understand what was being said. Schiliro testified
as an expert on organized crime, and he was sufficiently qualified on
that basis. Although he had never before been qualified as an expert
witness, even the most qualified expert must have his first day in
court.
3. Sources of Information
Defendants-appellants next argue that because Schiliro relied
[**34] upon
"countless
[*938]
nameless informers and countless tapes not in evidence," his testimony
violated
Fed. R. Evid. 703 and the Confrontation Clause of the Sixth
Amendment. The government responds that, although Schiliro relied upon
information that was not before the court, this reliance is permitted
under the rules of evidence.
According to Rule 703, the facts that form the basis for an expert's
opinions or inferences need not be admissible in evidence "if of a type
reasonably relied upon by experts in the particular field."
Fed. R. Evid. 703 (emphasis added). Thus, expert witnesses can
testify to opinions based on hearsay or other inadmissible evidence if
experts in the field reasonably rely on such evidence in forming their
opinions. See
Daly, 842 F.2d at 1387 (holding that organized crime expert can rely
on otherwise inadmissible hearsay in forming his opinion); cf.
Reardon v. Manson, 806 F.2d 39, 42 (2d Cir. 1986) (holding that
reliance by experts on information provided by others does not violate
Sixth Amendment rights if expert is available for cross examination),
cert. denied,
481 U.S. 1020 (1987). [**35]
Therefore, Schiliro was entitled to rely upon hearsay as to such matters
as the structure and operating rules of organized crime families and the
identification of specific voices heard on tape in forming his opinion,
since there is little question that law enforcement agents routinely and
reasonably rely upon such hearsay in the course of their duties. An
expert who meets the test of Rule 702, as Schiliro does, is assumed "to
have the skill to properly evaluate the hearsay, giving it probative
force appropriate to the circumstances." In re "Agent Orange"
Product Liability Litigation, 611 F. Supp. 1223, 1245 (E.D.N.Y. 1985),
aff'd,
818 F.2d 187 (2d Cir. 1987), cert. denied,
487 U.S. 1234 (1988). The fact that Schiliro relied upon
inadmissible evidence is therefore less an issue of admissibility for
the court than an issue of credibility for the jury. See
United States v. Young, 745 F.2d 733, 761 (2d Cir. 1984) (pointing
out that the defendants were free to expose the weaknesses in the
prosecution's widespread use of expert testimony through cross
examination),
[**36] cert.
denied,
470 U.S. 1084 (1985).
Gotti and Locascio do not seriously contest the point that hearsay and
other inadmissible evidence are often reasonably relied upon by law
enforcement agents in the field, and that this reliance is anticipated
by Rule 703. Rather, they argue that a district court admitting expert
testimony based on inadmissible evidence must make an explicit finding
that the underlying sources of information used by the expert are
trustworthy. See
Barrel of Fun, Inc. v. States Farm Fire & Casualty Co., 739 F.2d 1028,
1033 (5th Cir. 1984) (holding that an expert's testimony was
inadmissible because the factual premises underlying the opinion were
"inherently suspect"). We agree that a district court is not bound to
accept expert testimony based on questionable data simply because other
experts use such data in the field. The Supreme Court's recent decision
of
Daubert v. Merrell Dow Pharmaceuticals Inc., 125 L. Ed. 2d 469, 113 S.
Ct. 2786 (1993), makes this clear. In Daubert the Court abandoned
the traditional rule of
Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (D.C. Cir.
1923), [**37] which
required "general acceptance" in the particular field before novel
scientific evidence or techniques could be admitted in court. The Court
in Daubert asserted that such a rigid standard for admitting expert
scientific testimony was inconsistent with the liberal thrust of the
federal rules,
113 S. Ct. at 2794, holding that district courts have the authority
and discretion to determine whether novel scientific evidence is
trustworthy. Id. at 2796. Although Daubert involved Rule 702 and
scientific evidence, the flexibility of the federal rules also applies
to Rule 703 and the determination of the trustworthiness of the sources
of expert testimony. The district court has broad discretion to decide
the admissibility of expert testimony based on inadmissible evidence.
We decline, however, to shackle the district court with a mandatory and
explicit trustworthiness analysis. The district judge, who has the ideal
vantage point to evaluate an expert's testimony during trial, already
has the authority under
Fed. R. Evid. 403 to
[*939]
conduct an explicit trustworthiness analysis should she deem one
necessary. See
Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir. 1984) [**38]
(noting that the district court has the "discretionary right under Rule
703 to determine whether the expert acted reasonably in making
assumptions of fact upon which he would base his testimony"). In fact,
we assume that the district court consistently and continually performed
a trustworthiness analysis sub silentio of all evidence introduced at
trial. We will not, however, circumscribe this discretion by burdening
the court with the necessity of making an explicit determination for all
expert testimony. This is especially true in this case, because the
sources relied upon by Schiliro are no different from those previously
allowed by this Court. See
Daly, 842 F.2d at 1387-88.
4. Availability of Alternative Methods of Proof
Finally, the defendants-appellants argue that because an accomplice
witness was available to provide similar testimony concerning the
operations of organized crime families, the government was not permitted
to introduce expert testimony on the subject. Rule 702, however,
requires only that an expert have "some specialized knowledge that will
assist the trier of fact." There is no requirement that prohibits a
government agent
[**39] from
testifying as an expert merely because an accomplice witness is also
available.
The defendants-appellants mistakenly rely upon
United States v. Long, 917 F.2d 691 (2d Cir. 1990), and
United States v. Castillo, 924 F.2d 1227 (2d Cir. 1991), to support
their contention. In Long, we held that the district court abused its
discretion by admitting expert testimony regarding organized crime, but
only because the crimes alleged had merely a marginal connection to
organized crime.
917 F.2d at 701-02. The present case is readily distinguishable in
that the charges against the defendants-appellants are intimately
related to organized crime.
Similarly, in Castillo, this Court held that expert testimony had been
erroneously admitted not because a lay witness could have provided the
same testimony, but because we concluded that the jury "was entirely
capable of understanding the evidence before it and determining the
facts in issue without [the expert's] assistance."
924 F.2d at 1233. The same cannot be said about this case.
5. Other Challenges
The defendants-appellants
[**40]
challenge the introduction of testimony from two other sources: FBI
Agents George Mueller and George Gabriel. The record reflects, however,
that neither of these witnesses testified as experts, and that neither
defendant-appellant objected to their testimony when it was given.
Therefore, we find no reason to disturb the district court's admission
of their testimony.
C. Conclusion
Although we recognize the dangers inherent in the use of government
experts in cases such as this one, we hold that the admission of such
testimony was not manifestly erroneous. We remind the district courts,
however, that they are not required to admit such testimony, and when
they do the testimony should be carefully circumscribed to ensure that
the expert does not usurp either the role of the judge in instructing on
the law, or the role of the jury in applying the law to the facts before
it. Cf.
United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991),
cert. denied,
116 L. Ed. 2d 39, 112 S. Ct. 63 (1991).
III. Jury Instructions
Gotti and Locascio make various challenges to the district court's
instructions to the jury. We review those
[**41]
instructions de novo, and will only reverse on this basis if the
defendants-appellants can show that the charge given, when read as a
whole, caused them prejudice. See
United States v. Pujana-Mena, 949 F.2d 24, 27 (2d Cir. 1991).
A. Section 1959
Gotti argues that the district court erroneously instructed the jury on
the murder and murder conspiracy counts. These
[*940]
charges were founded on
18 U.S.C. § 1959, which provides:
(a) Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of
pecuniary value from an enterprise engaged in racketeering activity,
or for the purpose of gaining entrance to or maintaining or
increasing position in an enterprise engaged in racketeering
activity, murders, kidnaps, maims, assaults with a dangerous weapon,
commits assault resulting in serious bodily injury upon, or
threatens to commit a crime of violence against any individual in
violation of the laws of any State or the United States, or attempts
or conspires so to do, shall be punished . . . .
18
U.S.C. § 1959(a) (emphasis
[**42]
added). The "maintaining or increasing" requirement is given its
ordinary meaning and is "satisfied if the jury could properly infer that
the defendant committed his violent crime because he knew it was
expected of him by reason of his membership in the enterprise or that he
committed it in furtherance of that membership."
United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992).
Gotti argues, however, that the district court's instructions on the §
1959 counts were ambiguous, allowing him to be convicted even if the
jury found that the murders were committed to advance someone else's
position, not his own. Gotti's theory of defense was that many of the
murders committed by Gambino Family associates were actually authorized
by Gravano, the government witness, solely for his own purposes. Gotti
argued to the jury that Gravano had orchestrated the murders to improve
his own financial position, and that Gotti had nothing to do with them.
Gotti and Locascio focus on two parts of the instructions: (1) the
court's language at the end of its instructions on the counts charging
substantive violations of § 1959; and (2) the court's charge on the §
1959 conspiracy
[**43]
counts. For the reasons stated below, we find no basis for reversal,
even though we recognize that the district court should have more
clearly stated and reiterated the "maintaining or increasing position"
motive requirement of § 1959 in both the substantive and conspiracy
counts.
(1) Language in the Substantive § 1959 Counts
A review of the instruction reveals that the district court initially
clearly instructed the jury that the government had to prove that Gotti
and Locascio committed the murders in order to maintain or increase
their respective positions in the enterprise. Referring to substantive
counts four, six, and eight, the court specifically charged that
the fourth element that the Government must prove beyond a
reasonable doubt is that the defendant's purpose in committing the
murder was to maintain or increase his position in the racketeering
enterprise. In determining whether a defendant's purpose in
committing the murder was to maintain or increase his position in
that enterprise, you should give the words "maintain" or "increase"
their ordinary meaning. You should consider all the facts and
circumstances in making that determination.
For example, [**44] you
may consider evidence that the crime, if proved, was committed in
order to maintain discipline within the enterprise and served to
maintain the defendant's position with the enterprise.
If the defendant committed a crime because he thought it would
enhance his position or prestige within the enterprise, or if he
committed it because he thought it was necessary to maintain the
position he already held in the enterprise, the element would be
established.
These examples are only meant by way of illustration. They are not
exhaustive.
These instructions are entirely consistent with the language in
Concepcion. See id.
The district court's initial instructions on the substantive § 1959
counts, then, correctly reflected the government's burden to show that
Gotti and Locascio acted to increase or maintain their respective
positions in the enterprise. As the instructions continued, however, the
district court unfortunately began to use a short-hand phrase to refer
to the § 1959 motive requirement.
[*941]
Toward the end of its instructions on the substantive § 1959 counts, the
court summarized its § 1959 instructions without mentioning the
maintaining-or-increasing-his-position
[**45] motive
and using instead the short-hand phrase "in aid of racketeering." The
court said, "in short," that the jury should convict on the substantive
§ 1959 count in question if it found that the government proved beyond a
reasonable doubt that the defendant the jury was considering committed
the crime of murder or aided or abetted the commission of that crime "in
aid of racketeering." Since virtually all crimes could be committed "in
aid of racketeering" without the motive of maintaining or increasing the
perpetrator's position in the enterprise, this summary was unfortunately
vague. Though the phraseology may be cumbersome, the district court
should remind the jury of the position-related motivation requirement
that is applicable to each § 1959 count.
Gotti and Locascio argue that the charge was fatally flawed because of
the use of the "in aid of racketeering" language. The district court,
however, only used the ambiguous short-hand language in the summary of
the instruction, after having articulated the requirement correctly
throughout the rest of the explanation of the counts. Moreover, the
court gave the jurors the indictment, which alleged that Gotti and in
some cases Locascio
[**46]
"together with others" conspired to murder and/or murdered four
individuals "for the purpose of maintaining and increasing their
positions in the Gambino Family." At the point when the district court
lapsed into short-hand, the jury was already well aware of the motive
requirement.
(2) Language on the § 1959 Conspiracy Counts
In the district court's instructions on the § 1959 conspiracy counts,
the court again used language that blurred the § 1959 motive
requirement. As with the substantive counts, the court began by
informing the jury of the charge in the indictment and of the statutory
provision, both of which include the "maintaining or increasing
position" clause.
In proceeding to instruct the jury as to what it needed to find in order
to convict on these counts, though, the court again used its "in aid of
racketeering" catch phrase. The court did not at that point expressly
advise the jury that, in order to convict on the § 1959 conspiracy
counts, the jury was required to find that the defendant in question
conspired to commit murder for the purpose of maintaining or increasing
his position in the enterprise.
At another point, when instructing the jury as to the nature
[**47] of the
alleged conspiracy, the court often used a short-hand phrase with
respect to the object of the conspiracy that did not adequately reflect
the need for proof of a position-related purpose. For example, the court
instructed that a "conspiracy is defined very simply as an agreement
between two or more persons to commit a crime" and that
it is enough if the Government proved two or more persons, one of
whom being the defendant you are considering in any way, either
expressly or impliedly, came to a common understanding to commit a
crime to violate the law . . . .
(emphasis added). The court also concluded using the short-hand:
Summing up then, the essential elements of the offense charged in
counts three, five, seven and nine, conspiracy to murder in aid of
racketeering, each of which the Government must prove beyond a
reasonable doubt are:
First, that [a] conspiracy existed. That is two or more people, one
of whom is the defendant that you are considering, agreed to violate
federal law against murder in aid of racketeering.
And second, that the defendant knowingly and willfully became a
member of the conspiracy.
. . . .
The burden is on the Government [**48] to
prove each and every element. There are two, the existence of the
conspiracy and the defendant's membership in it, beyond a reasonable
doubt.
(emphasis added). These instructions arguably left the potential for the
jury to misunderstand
[*942] the
nature of the § 1959 conspiracy charges against Gotti and Locascio. It
should be noted, though, that these lapses came after the district court
had already properly instructed the jury on the position-related motive
requirement of § 1959. The jury did receive accurate instructions
initially, although the district court proceeded to refer back to the
motive requirement with the short-hand "in aid of racketeering"
catch-phrase rather than the more precise "increase or maintain"
language.
(3) Conclusion
Gotti and Locascio argue that the vagueness in the instructions, caused
by the district court's lapses into short-hand, constitutes reversible
error. We note, though, that "a single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the context of the
overall charge."
Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396
(1973). We disagree that the district court's charge was erroneous,
[**49]
because, even with the lapses, the instruction as a whole accurately
charged the jury, especially considering that the court did properly
impart the motive requirement numerous times and did give the jury the
indictment, which also used the "increase or maintain" language.
Even if the district court had committed error in its instructions,
however, the defendants failed to object to these aspects of the
instructions at trial.