CORE TERMS: conversation,
tape, conspiracy, murder, surveillance, recording, co-conspirator,
indictment, intercepted, illegal gambling, obstruct, microphones,
predicate, pertaining, unsealing, gambling, disclosure, interception,
grand jury, obstruction, convicted, disclose, participated, collection,
peremptory, authorization, furtherance, game, new trial, monitoring
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Headnotes
COUNSEL: Robert L. Sheketoff with whom Kimberly Homan and
Zalkind, Sheketoff, Homan, Rodriguez & Lunt, for Appellant Jason Brion
Angiulo.
Carolyn M. Conway with whom Francis J. DiMento and DiMento & Sullivan,
for Appellant William Joseph Kazonis.
Willie J. Davis with whom Davis, Robinson & Smith, for Appellant John
Carmen Cincotti.
Frank J. Marine, U.S. Department of Justice, with whom Frank L.
McNamara, Jr., United States Attorney, Robert S. Mueller, III, Acting
United States Attorney, Jeremiah T. O'Sullivan, Jeffrey Auerhahn and
John Voorhees, Special Attorneys, U.S. Department of Justice, for
Appellee.
JUDGES: Coffin, Breyer and Torruella, Circuit Judges.
OPINIONBY: COFFIN
OPINION: [*960]
COFFIN, Circuit Judge.
These are consolidated appeals from convictions on jury verdicts
rendered after 58 days of trial. The defendants, Jason Angiulo, William
Kazonis, and John Cincotti, were connected with the Patriarca Family of
La Cosa Nostra, which has developed a reputation in United States law
enforcement circles for highly organized criminal activities.
[**2]
Defendant Angiulo was convicted of participating in illegal gambling
(18 U.S.C. § 1955); Kazonis was convicted of conspiring to obstruct
and obstructing justice
(18 U.S.C. §§ 371, 1503); and Cincotti was convicted of conspiring
to participate and participating in an enterprise through a pattern of
racketeering or collection of an unlawful debt
(18 U.S.C. § 1962(d) and (c), respectively) and participating in an
illegal gambling business
(18 U.S.C. § 1955). We briefly describe the essential facts
pertaining to these convictions and then discuss the issues raised by
defendants on appeal.
I.
The bulk of evidence admitted against the defendants was the product of
lengthy electronic surveillance, both audio and video, conducted in 1981
at 98 Prince Street in Boston, the headquarters for operations of
Gennaro Angiulo, father of defendant Jason Angiulo and a known
"underboss" of the Patriarca Family, n1 and at 51 North Margin Street,
Boston, the site of certain high-stakes poker games, with which
defendant Cincotti had certain affiliations. Numerous search warrants
executed by FBI agents in
[**3] 1981
produced physical evidence that was introduced against Cincotti.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Gennaro Angiulo was separately convicted for crimes involving the
alleged conspiracies at issue in this case. He is not party to this
appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
From this and other evidence introduced at trial, the jury would have
been warranted in finding the following facts pertaining to each
defendant:
John Cincotti
In 1980 and 1981, Cincotti and other individuals operated high-stakes
poker games at 51 North Margin Street, Boston. Cincotti managed these
games and extended credit to players. Chips were provided at $ 500 each
to the players. Electronic surveillance conducted at one of these games
revealed that betting reached a sum of over $ 10,000. Cincotti kept a
list of the gambling debts owed by each player for each game. After a
night of gambling, Cincotti would "settle accounts" with the players and
negotiate further extensions of credit and terms of payment.
The gambling business at 51 North Margin Street was "owned" by a
partnership
[**4] that
included Gennaro Angiulo and Ilario
[*961]
Zannino, among others. n2 A recorded conversation between these two men,
introduced at trial, revealed that Cincotti was responsible for keeping
track of the profits earned by the gambling operation. On May 18, 1981,
pursuant to authorized search warrants, FBI agents entered 51 North
Margin Street while poker games were in progress and seized gambling
paraphernalia. Searching Cincotti, they found on his person $ 9500 in
cash and slips of paper containing the names of individuals owing debts
from poker games that totalled over $ 56,000. The agents also found on a
table next to Cincotti a spiral notebook containing names of players to
whom credit had been extended that evening.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Ilario Zannino, like Gennaro Angiulo, was also separately convicted
for crimes involving the alleged conspiracies at issue in this case, but
he is not party to this appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Tape recordings of conversations at 51 North Margin Street, not directly
related to the gambling operation,
[**5] revealed
Cincotti's participation in a plot to murder one Harvey Cohen, the owner
of an air freight business that operated in competition with a similar
business run by the Patriarca Family. The recordings also revealed
Cincotti's knowledge of murders previously committed by members or
associates of the Patriarca Family in furtherance of the interests of
the Family's operations.
Jason Angiulo
Between 1979 and 1981, Jason Angiulo managed and supervised a gambling
operation known as "Las Vegas Nights." Las Vegas Nights was routinely
held at various locations in the Greater Boston area ostensibly to raise
money for non-profit, charitable organizations. Testimony from members
of the supposed sponsoring charities as well as from undercover FBI
agents who attended Las Vegas Nights events revealed the following: (1)
permits for certain events were obtained by falsifying signatures of
members of charitable organizations in whose names the events were run;
(2) gambling at the events was not operated by members of the charitable
organizations that supposedly sponsored them; (3) events were held in
the names of organizations that never authorized the use of their names;
and (4) organizations,
[**6] in whose
names the events were held, received, in some instances, only token
portions of the proceeds and, in others, nothing. In conversations
intercepted at 98 Prince Street between January and March 1981 and
introduced at trial, Jason Angiulo discussed the division of profits
from Las Vegas Nights with his father, Gennaro Angiulo, and others.
William Kazonis
Evidence from recordings made at 98 Prince Street on March 24 and 25,
1981 revealed that once a grand jury was convened to investigate matters
described above as well as the activities of other alleged
co-conspirators in the Patriarca Family, defendant Kazonis conspired
with Gennaro Angiulo and others to obstruct the grand jury
investigation.
One Walter LaFreniere had been involved in loansharking activities of
the Patriarca Family. In March 1981, Gennaro Angiulo learned that
LaFreniere had been served with a grand jury subpoena to testify about
the nature of those activities. Although Gennaro Angiulo was aware that
LaFreniere refused to testify on Fifth Amendment grounds, he expressed
concerns to LaFreniere's attorney, William Cintolo, n3 that if
LaFreniere were granted immunity he would be compelled to expose the
[**7] lending
activities of defendant Jason Angiulo. A recorded conversation between
Gennaro Angiulo,
Richard Gambale, and Peter Limone
n4 showed that Gennaro Angiulo asked the latter two to seek assurances
from LaFreniere that he would not cooperate with the grand jury
investigation. Gennaro Angiulo also instructed Cintolo to direct
[*962]
LaFreniere to refuse to testify and to serve a prison sentence instead.
Other recorded conversations revealed that it was Gennaro Angiulo's
intention to arrange the murder of LaFreniere if he did not cooperate.
LaFreniere subsequently was informed by the FBI that there was a murder
contract on his life.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Under separate indictment, William Cintolo was convicted for his role
in the conspiracy to obstruct justice. On appeal, we affirmed his
conviction.
United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987).
n4
Richard Gambale and Peter Limone were indicted with the
defendants. They each pleaded guilty to obstruction of justice.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
On March 24, 1981, defendants
[**8] Kazonis
and Jason Angiulo met with Gennaro Angiulo. Kazonis explained that he
had learned that LaFreniere planned to refuse to testify and to go to
jail instead. After Gennaro Angiulo instructed defendant Jason Angiulo
to testify falsely before the grand jury and he agreed to do so, the
three men discussed the consequences that might befall defendant Jason
Angiulo if he were caught lying. They also discussed the danger that
LaFreniere's testimony posed for them. Gennaro Angiulo instructed
Kazonis to meet with LaFreniere and explain the plan that he go to jail
rather than testify. He made clear that it was Kazonis's responsibility
to make sure that LaFreniere said nothing to the grand jury.
The following day, Kazonis reported back to Gennaro Angiulo and assured
him that LaFreniere was told to keep quiet and go to jail for contempt.
Later that same day, Kazonis and Cintolo each described to Gennaro
Angiulo their meetings with LaFreniere and explained that they had each
told LaFreniere that the maximum sentence he would serve for contempt
would be 18 months.
On April 1, 1981, the government granted LaFreniere immunity for the
testimony he was to give to the grand jury the following
[**9] day. On
April 2, Gennaro Angiulo and Cintolo instructed Kazonis to get a message
to LaFreniere that if he were arrested for contempt, he should not talk
to authorities. After seeking a continuance due to Cintolo's
disqualification as his attorney, LaFreniere eventually appeared before
the grand jury on April 23, 1981 and refused to testify. On June 2, he
was held in contempt and subsequently served 18 months in prison for
that offense.
* * *
The defendants raise numerous issues on appeal. Cincotti raises issues
that pertain only to his conviction. Angiulo and Kazonis raise issues in
common. We begin by addressing Cincotti's arguments. We then turn to the
common issues raised by Angiulo and Kazonis and related issues asserted
individually by those defendants.
II.
We set the stage for our analysis of Cincotti's appeal by describing the
allegations in the indictment pertaining to the RICO charges as well as
the context in which Cincotti alleged errors at trial.
Cincotti was charged, in Count I, with conspiring to violate section
1962(c) of the Racketeer Influenced and Corrupt Organizations Act
(RICO),
18 U.S.C. §§ 1961-1968, under
18 U.S.C. § 1962 [**10] (d).
In Count II, he was charged with a substantive RICO violation under
18 U.S.C. § 1962(c). n5
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 Section 1962(c) reads in full:
It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly
or indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity or collection of unlawful debt.
The conspiracy provision, section 1962(d), provides: "It shall be
unlawful for any person to conspire to violate any of the provisions of
subsections (a), (b), or (c) of this section."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In the RICO conspiracy count, the government alleged, in paragraph 1,
that Cincotti, Angiulo, and Kazonis joined together, as members and
associates of the Patriarca Family of La Cosa Nostra, and thereby
constituted an "enterprise" within the meaning of
18 U.S.C. § 1961(4). n6 Paragraphs 3 and 4 of Count
[**11] I then
described in detail the nature and structure of the alleged enterprise
and its functional relationship with La Cosa Nostra. Paragraph 2 alleged
that Cincotti and his co-defendants "agreed together . . . to conduct
and participate, directly and indirectly, in the affairs
[*963] of
the Enterprise . . . through a pattern of racketeering activity as set
forth in paragraphs 5 and 6 of this Count and the collection of unlawful
debt, as set forth in paragraph 7 of this Count." n7 Paragraph 5 alleged
that Cincotti engaged in two racketeering acts (or predicate crimes):
(a) during April, 1981, he conspired with others to murder Harvey Cohen
in violation of Massachusetts laws n8 and (b) from on or about October
20, 1980 until on or about May 18, 1981, he operated an illegal gambling
business involving poker games in violation of Massachusetts laws.
Paragraph 6 alleged that "it was part of the conspiracy that [Cincotti]
conducted and participated in, and agreed to conduct and participate in,
the affairs of the Enterprise through a pattern of racketeering
activity" involving the same acts described in paragraph 5. Finally, in
paragraph 7, the government alleged that, as part of the
[**12]
conspiracy, Cincotti participated directly and indirectly in the affairs
of the Enterprise "through the collection of unlawful debts . . .
incurred and contracted in gambling activity" in violation of
Massachusetts laws.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 An "enterprise" is "any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity."
18 U.S.C. § 1961(4).
n7 A "pattern of racketeering activity" is "at least two acts of
racketeering activity," the first having been committed after the
enactment of RICO and the second occurring within ten years of the
first.
18 U.S.C. § 1961(5). Such acts include,
inter alia, "any act
or threat involving murder [or] . . . gambling . . ., which is
chargeable under State law and punishable by imprisonment for more than
one year."
18 U.S.C. § 1961(1) (A).
An "unlawful debt" is defined as: a debt (A) incurred or contracted
in gambling activity which was in violation of the law of the United
States, a State or political subdivision thereof, or which is
unenforceable under State or Federal law in whole or in part as to
principal or interest because of the laws relating to usury, and (B)
which was incurred in connection with the business of gambling in
violation of the law of the United States, a State or political
subdivision thereof, or the business of lending money or a thing of
value at a rate usurious under State or Federal law, where the
usurious rate is at least twice the enforceable rate.
18 U.S.C. § 1961(6).
[**13]
n8 The alleged conspiracy to murder Harvey Cohen may be a predicate
offense underlying the RICO conspiracy because it is listed as a
predicate offense under section 1961(1).
See
United States v. Ruggiero, 726 F.2d 913, 918-19 (2d Cir. 1984).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Count II incorporated, by reference, all of the allegations of
paragraphs 1, 3, 4, 5, 6 and 7 in Count I. It simply reasserted those
allegations as constituting the substantive violation of
18 U.S.C. § 1962(c).
More than half-way through trial, on instructions from the district
court, the government amended its original indictment to eliminate
references to co-defendants who had pleaded guilty. The allegations in
Counts I and II described above were identical in both the original and
the redacted indictments. Cincotti filed a motion to dismiss, however,
on the ground that the government made additional substantive changes,
resulting in a violation of his Fifth Amendment right to be indicted by
a grand jury. The district court denied that motion.
After the government rested, Cincotti moved for judgment of acquittal
[**14] on the
ground that he could not be convicted for the alleged RICO violations
because at the time of the alleged violations, this court had held, in
United States v. Turkette, 632 F.2d 896 (1st Cir. 1980),
rev'd,
452 U.S. 576, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981), that RICO
prohibited only racketeering activities that furthered the interests of
legal enterprises, not illegal ones like the Patriarca Family. Even
though that decision had been subsequently reversed by the Supreme
Court, Cincotti contended that a conviction would violate his
constitutional rights to due process because he would suffer from an
ex post facto application of RICO. The district court denied that
motion also. The jury subsequently found Cincotti guilty of both the
RICO conspiracy and the substantive RICO violation.
Cincotti now asserts the district court erred in denying his motion to
dismiss the amended indictment and his motion for judgment of acquital.
He also argues that there was insufficient evidence to support his
substantive RICO conviction. We address each argument in turn.
A. The Redacted Indictment
Cincotti contends that the district court erred
[**15] in
denying his motion to dismiss the
[*964]
indictment. He argues that by eliminating an allegation of a particular
"overt act" in the redacted indictment, the government made a
substantive change in the RICO conspiracy count and that this deprived
him of his constitutional right to be indicted by the Grand Jury.
Our assessment of Cincotti's position begins with a review of the
requirements for a valid RICO conspiracy charge that we established in
United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981).
In
Winter, we held that to make out the elements of a RICO
conspiracy charge the government must allege (1) the existence of an
"enterprise," (2) that the defendant knowingly joined the enterprise and
(3) that the defendant agreed to commit, or in fact committed, two or
more specified predicate crimes as part of his participation in the
affairs of the enterprise.
Id.; see also
United States v. Turkette, 656 F.2d 5, 8 (1st Cir.),
on
remand from
452 U.S. 576, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981) (charges that
defendant joined enterprise, knew of its criminal activities, and agreed
to commit two illegal predicate
[**16]
offenses in furtherance of the enterprise legally sufficient to make out
racketeering conspiracy count). We now add that an agreement to collect
unlawful debts, or actual collection of unlawful debts, can
alternatively constitute the third required element of a RICO
conspiracy.
We did not consider, in
Winter, the function that "overt acts"
might play in a RICO conspiracy indictment. We now join with those
circuits squarely holding that the commission of "overt acts" is not
required for a RICO conspiracy conviction.
E.g.,
United States v. Coia, 719 F.2d 1120, 1123-24 (11th Cir. 1983);
United States v. Barton, 647 F.2d 224, 237 (2d Cir. 1981).
Since section l962(d) does not, itself, require overt acts, there is no
reason for us to imply such a requirement.
Id. And we think the
standards set forth in
Winter are sufficient to the point of
rendering superfluous any "overt act" requirement because, in any RICO
conspiracy indictment the government must allege agreement to commit or
commission of
specified predicate crimes or, alternatively the
collection of unlawful debts. That specificity is sufficient to alert
defendants to the nature
[**17] of the
conspiracy for which they are being charged.
In this case, the government retained, in its amended indictment, the
identical allegations constituting the elements of a RICO conspiracy
charge against Cincotti that were present in its original indictment:
(1) the existence of an enterprise, (2) Cincotti's knowing participation
in the enterprise, and (3) his agreement to commit or actual commission
of two
specified predicate crimes ("racketeering acts"). No
further allegations were needed, but by alleging that Cincotti
participated in the enterprise's affairs through the collection of
unlawful debts associated with gambling operations, the government
sufficiently alleged an alternative ground for the third required
element of the RICO conspiracy count.
"An indictment may not be amended except by resubmission to the grand
jury, unless the change is merely a matter of form," but withdrawal of a
portion of the indictment that the evidence does not support is not an
impermissible amendment, "provided nothing is thereby added to the
indictment, and that the remaining allegations charge an offense."
United States v. Winter, 663 F.2d at 1139-40. The
government's
[**18]
deletion of an "overt act" in its redacted indictment did not change any
of the allegations of the original indictment that adequately had
charged the substantive elements of a RICO conspiracy. Rather, by taking
out the "overt act," the government merely eliminated a superfluous
allegation that the evidence did not support. n9 The redacted indictment
added no new charges, and the remaining allegations charged the same
offenses
[*965] as
the original. Under these circumstances, the changes in the indictment
did not violate Cincotti's constitutional rights to be charged by
indictment of the grand jury.
See
id. at 1140.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 The eliminated "overt act" -- that Cincotti "instructed an underling
to collect a gambling debt" -- was based upon an intercepted
conversation and a voice identification of Cincotti. At trial, the
government was unable to prove the voice identification because a
government witness testified that he was uncertain whether the voice on
the tape was that of Cincotti.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -B.
[**19] Due
Process
Cincotti next argues that, under
Bouie v. City of Columbia, 378 U.S. 347, 12 L. Ed. 2d 894, 84 S.
Ct. 1697 (1964), he was deprived of his constitutional right to due
process because he was convicted for violating RICO under an
unforseeable judicial construction of the statute, applied
retroactively. He contends that during his participation in the
activities that gave rise to his convictions, he had the right to rely
upon our decision in
United States v. Turkette, 632 F.2d 896, where we held that
RICO does not apply to wholly illegal enterprises. He reasons that since
the Patriarca Family of La Cosa Nostra was a wholly illegal enterprise,
his participation in its activities could not constitute grounds for a
RICO conviction under
Turkette. While recognizing that our
construction of an "enterprise" under RICO was subsequently reversed by
the Supreme Court,
452 U.S. 576, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981), he asserts
that any application of the Supreme Court's decision would be an
ex
post facto application of criminal law in violation of his rights to
due process of law. n10
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 We decided
Turkette on September 23, 1980. The Supreme Court
granted
certiorari on
January 26, 1981, 449 U.S. 1123, 101 S. Ct. 938, 67 L. Ed. 2d 109
(1981), and then issued its opinion reversing our decision on July
17, 1981. The indictment charged Cincotti with RICO predicate offenses
occurring in April, 1981 (conspiracy to murder Harvey Cohen) and between
October 20, 1980 and May 18, 1981 (the operation of an illegal gambling
business). The government's proof at trial did not vary from these
dates. Thus, all of the activities leading to Cincotti's conviction
occurred between our decision in
Turkette and the Supreme Court's
reversal of that decision. Yet most of the alleged criminal activities
occurred after the Supreme Court granted
certiorari, a factor we
consider below in assessing Cincotti's reasonable reliance on our
opinion as an authoritative construction of RICO.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**20]
The government has supplied us with numerous counter arguments that
check the progress of Cincotti's due process theory at every turn. We
need not reiterate all of them to adequately dispose of this question.
This case is a far cry from the situation in
Bouie. In that case,
certain blacks entered a South Carolina restaurant and refused to leave
when they were not served. There were no signs posted to indicate that
the restaurant served whites only. The blacks were arrested and
convicted for criminal trespass under a South Carolina statute that
prohibited "entry upon the lands of another . . . after notice from the
owner or tenant prohibiting such entry."
Bouie v. City of Columbia, 378 U.S. at 349-50 & n.1. The
Supreme Court of South Carolina upheld their convictions by construing
the otherwise "admirably narrow and precise" language,
378 U.S. at 351, to prohibit the act of remaining on the premises of
another after receiving notice to leave.
Recognizing that the Due Process Clause supports the "basic principle
that a criminal statute must give fair warning of the conduct that it
makes a crime,"
id. at 350, the United States
[**21]
Supreme Court reasoned "there can be no doubt that a deprivation of the
right of fair warning can result . . . from an unforeseeable and
retroactive judicial expansion of narrow and precise statutory
language."
Id. at 352. Moreover, the Court said, "an unforeseeable
judicial enlargement of a criminal statute, applied retroactively,
operates precisely like an
ex post facto law, such as Art. I, §
10, of the Constitution forbids."
Id. at 353.
Upon surveying South Carolina caselaw and that of other states with
statutes carrying similar language, the Supreme Court concluded that the
construction that the South Carolina Supreme Court had given to its
criminal trespass statute was virtually "'unexpected and indefensible by
reference to the law which had been expressed prior to the conduct in
issue.'"
Id. at 354 (quoting Hall, General Principles of Criminal Law
[*966] (2d
ed. 1960) at 58-59), 356-62. Thus, the state court's unforeseeable
construction of the statute, applied retroactively, deprived the
defendants of due process of law since, at the time they committed the
charged offenses, they had no fair warning that their
[**22]
conduct was criminal.
Id. at 361-62.
We cannot reasonably extend the principles of
Bouie to the case
at bar. In reversing our decision in
Turkette, the Supreme Court
held that the term "enterprise," as defined under
18 U.S.C. § 1961(4),
see supra note 6, plainly and
unambiguously included illegitimate or illegal enterprises, and that
nothing in the legislative history of the statute provided otherwise.
452 U.S. at 580-93. The use of that term in the RICO statute was so
unambiguous, in fact, that the Court refused to apply the "rule of
lenity" to bar the application of its holding to the defendant in that
case.
Id. at 587-88 n.10 implicit in the Court's rejection of the
rule of lenity is the conclusion that the term was not sufficiently
ambiguous to allow the defendant to be free of the retroactive
application of the Court's decision.
See id.;
United States v. Rodgers, 466 U.S. 475, 484, 80 L. Ed. 2d 492,
104 S. Ct. 1942 (1984). Thus, unlike the situation in
Bouie,
where a narrowly and precisely drawn statute could not possibly have
been foreseen to render criminal the conduct
[**23] in
question, the meaning of the term "enterprise" in the RICO statute has
been held by the highest authority to be so lacking in ambiguity before
our
Turkette decision that individuals could not reasonably rely
on a possible limiting construction of that term to render their conduct
non-criminal.
That this
post hoc pronouncement differed from our own assessment
can give little comfort to appellant. The fact that every other circuit
court considering the issue had taken a stance opposite to our position
in
Turkette, see
452 U.S. at 578 & n.1, coupled with the fact that the Supreme Court
readily granted
certiorari, should have placed Cincotti on notice
that throughout the period of his conduct in question the authority of
our
Turkette decision was precarious at best.
See
United States v. Rodgers, 466 U.S. at 484 (rule of lenity not
applied to defendant whose conviction was vacated by a circuit court
when Supreme Court reversed opinion of that court and construed statute
in question in line with every other circuit);
cf.
Bouie v. City of Columbia, 378 U.S. at 356-61 (neither plain
statutory language nor South Carolina
[**24]
caselaw, or that of other states with similar statutes, in any way
supported the construction adopted by the South Carolina Supreme Court).
Thus, even if Cincotti established his reliance upon our decision in
Turkette, n11 it would have been unavailing because the Supreme
Court's reversal of that decision was reasonably foreseeable.
See
United States v. Rodgers, 466 U.S. at 484.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 The government points out that there is no evidence in the record
that Cincotti (as opposed to other alleged co-conspirators) did, in
fact, rely upon our decision in
Turkette when he engaged in the
conduct that led to his RICO convictions. That lack of reliance, it
seems, would vitiate his due process claim to be free of the retroactive
application of the Supreme Court's decision in
Turkette. See
United States v. Camara, 451 F.2d 1122, 1124-25 (1st Cir. 1971).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -C.
Sufficiency of the Evidence
Cincotti's final argument is that his conviction for the substantive
RICO violation should
[**25] be
reversed, or, in the alternative, a new trial granted due to
insufficient evidence. In assessing this claim we view all of the
evidence, including that pertaining to the credibility of witnesses, in
the light most favorable to the government.
United States v. Cintolo, 818 F.2d at 983.
The government could have proved the RICO violation in one of two ways:
by showing that Cincotti engaged in two predicate offenses or by showing
that Cincotti collected an unlawful debt. The government was required to
show, in addition, that these acts were performed in furtherance of the
Patriarca Family.
See
18 U.S.C. § 1962(c), quoted
supra note 5. As we
[*967] set
forth above, there were two predicate offenses charged in the
indictment: Cincotti's participation in a conspiracy to murder Harvey
Cohen and his operation of an illegal gambling business, both in
violation of Massachusetts law. In addition, he was charged with the
collection of unlawful debts. While not contesting the sufficiency of
the evidence pertaining to his operation of an illegal gambling
business, Cincotti claims that the government failed to prove his
participation in
[**26] plans
to murder Harvey Cohen and his collection of an unlawful debt. We think
the evidence was sufficient on both of these issues. We address each in
turn.
Cincotti asserts that the tape recordings of conversations intercepted
at 51 North Margin Street, which were played to the jury, contained
simultaneous conversations that the jury could not distinguish in order
properly to ascertain that Cincotti participated in a conspiracy to
murder Cohen. Relying on the testimony of his expert witness, a voice
therapist, he also argues that the government failed to present evidence
of voice identification. We disagree.
A government witness, FBI Agent Rafferty, testified that he listened to
the tape recordings intercepted at 51 North Margin Street, and based
upon his own personal conversations with the defendant, identified the
voice as that of Cincotti. The government also introduced into evidence
videotapes of Cincotti that showed his presence at 51 North Margin
Street during the time that the subject conversations were intercepted.
Rafferty's testimony together with the circumstantial evidence of
Cincotti's presence at the time of the conversations constituted
sufficient evidence for the
[**27] jury
to conclude that it was Cincotti who was present and participated in the
conversations with Zannino.
See, e.g.,
United States v. Vitale, 549 F.2d 71, 73 (8th Cir. 1977);
United States v. Vento, 533 F.2d 838, 864-65 (3d Cir. 1976).
Although Cincotti presented testimony contrary to that of Agent
Rafferty, it was up to the jury to weigh the credibility of the
witnesses and resolve any conflicts in the evidence.
See, e.g.,
United States v. Cuesta, 597 F.2d 903, 915 (5th Cir. 1979);
United States v. Vento, 533 F.2d at 065. n12
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 We do not agree with Cincotti's argument that the jury should have
given more weight to the testimony of Carolyn Kingston, the voice
therapist who testified on his behalf, than to that of Agent Rafferty.
As the government points out, while concluding that the characteristics
of the voice alleged to be that of Cincotti were not the same in tape
recordings for April 3 and 23, Kingston testified that she had never
spoken directly to Cincotti and could not testify about his voice
characteristics. Moreover, the district court ensured that the jury
would properly resolve any conflict in the testimony concerning voice
identification by instructing them that the government was required to
prove the defendants' voice identifications for all alleged intercepted
conversations played to the jury.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**28]
The jury, having listened to the tapes at trial, had the opportunity to
assess evidence that was sufficient to establish Cincotti's involvement
in the murder scheme. As the government points out, the tape of the
April 3, 1981 conversations reveals that co-defendant Zannino told
Cincotti: "This Harvey Cohen. I'm going to kill him, Johnny," and the
tape of the April 23, 1981 conversations contained the statement from
Zannino to Cincotti and others: "Johnny. And Johnny here's another thing
. . . you two and you. I want to kill Harvey Cohen very shortly. You
ain't done a . . . thing but tellin' me you're goin by his . . . house
and see his car." These statements, taken together and viewed in the
light most favorable to the government, including any reasonable
inferences to be drawn therefrom, were sufficient for the jury to
conclude that Cincotti committed a RICO predicate offense by involving
himself in a conspiracy to murder Harvey Cohen.
Cincotti does not contest the sufficiency of evidence for his illegal
gambling conviction. That offense, coupled with the sufficient evidence
that he participated in plans to murder Harvey Cohen constitute the
commission of two predicate acts for
[**29] his
conviction on the substantive RICO count. n13
[*968] We
nevertheless address Cincotti's challenge to the sufficiency of evidence
for the government's alternative basis for proving the RICO violation,
that he allegedly collected of unlawful debts in connection with
gambling operations.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 Cincotti does not challenge the sufficiency of evidence concerning
the existence of the "enterprise" or the government's proof that he
committed the alleged predicate acts in furtherance of the enterprise's
affairs.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Cincotti argues that all that was exposed by the government's evidence
was his general involvement in gambling operations at 51 North Margin
Street. He contends that there was no specific evidence of transactions
that would constitute the collection of any "unlawful debt" as that term
is used in the RICO statute.
See
18 U.S.C. § 1961(6), quoted
supra note 7. He argues:
It would appear that the government is relying on collection of
debts incurred in gambling [**30]
activity. It is clear from the tapes that what is going on is the
settling up at the end of a poker game. This was hardly the intent
of Congress when RICO was passed.
Brief of John Cincotti at 48.
We disagree. The definition of "unlawful debt" clearly contemplates the
type of gambling debts involved in the illegal poker games operated by
Cincotti at 51 North Margin Street.
See
18 U.S.C. § 1961(6);
Mass. Gen. Laws Ann. ch. 271, § 5 (West 1970). From evidence gleaned
from both intercepted conversations and the execution of search
warrants, the jury could have concluded beyond reasonable doubt that
Cincotti engaged in the extension of credit and the collection of debts
for the illegal gambling operation, and that these activities were
carried out to further the interests of the Patriarca Family. This would
support his conviction under
18 U.S.C. § 1962(c).
In sum, there was sufficient evidence for the jury to find Cincotti
guilty of the substantive RICO violation by concluding that he engaged
in either the predicate offenses (participation in a conspiracy to
murder Harvey Cohen and the operation of an illegal gambling
[**31]
business) or the collection of unlawful debts, all of which included
participation in the affairs of the Patriarca Family.
III.
The jury acquitted defendants Angiulo and Kazonis of the substantive
RICO charges and the RICO conspiracy charges. It found Angiulo guilty,
however, of operating an illegal gambling business, and returned
verdicts against Kazonis for conspiring to obstruct and obstructing
justice. Angiulo and Kazonis raise several issues on appeal. First, they
contend that the district court erred in making "
Petrozziello
findings" regarding the scope of their involvement in the RICO
conspiracy as a predicate for the admission into evidence of
co-conspirators' statements concerning murders. Second, they contend
that they were deprived of a fair trial on the non-RICO counts because
of the prejudicial "spillover" effect of that evidence. Third, they
argue that the district court abused its discretion in admitting into
evidence testimony from a government expert witness concerning their
association with the Patriarca Family. Fourth, they challenge, on
several grounds, procedures followed in the government's recording and
processing of conversations obtained through electronic
[**32]
surveillance at 98 Prince Street. Finally, they jointly assert that the
government violated their Fifth Amendment rights to equal protection by
using peremptory challenges systematically to remove blacks and
Italian-Americans from the jury. We address each of these issues, as
well as underlying sub-issues.
A. Petrozziello Findings
Angiulo and Kazonis challenge the admission into evidence of certain
tape recordings of discussions intercepted at 98 Prince Street,
including the discussions of Gennaro Angiulo and others concerning plans
to murder Harvey Cohen, threats on the life of Walter LaFreniere in
relation to his grand jury testimony, and murders carried out in the
past to further the interests of the Patriarca Family. These
conversations were admitted against the defendants
[*969] under
the co-conspirator provision of the hearsay rule,
Fed. R. Evid. 801(d)(2)(E). n14 The defendants contend that the
district court erred in finding, pursuant to
United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977),
that the government satisfied evidentiary prerequisites to the admission
of this evidence under that rule.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n14 Rule 801(d) (2) (E) provides, in pertinent part:
A statement is not hearsay if -- . . . The statement is offered
against a party and is . . . a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**33]
Following typical procedures, at the close of the evidence the trial
judge held a hearing, outside the presence of the jury, to make the
Petrozziello determination. The court found that the government had
shown that it was more likely than not that challenged statements
concerning past and future murder plans were made in furtherance of the
RICO conspiracy and that both Angiulo and Kazonis -- having committed
the predicate acts charged in the indictment in furtherance of the
Patriarca Family -- were members of that conspiracy. n15 While not
challenging the district court's general finding that they were members
of the alleged RICO conspiracy, the defendants assert that there was no
evidence that they knew that the scope of that conspiracy included
murders or murder conspiracies. They claim, as a result, that
conversations of alleged RICO co-conspirators concerning past or present
murders in furtherance of the interests of the Patriarca Family should
not have been admitted against them. n16
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n15 The court found,
inter alia:
Each of the defendants Jason Brion Angiulo and William Kazonis was a
member of the RICO conspiracy as an associate of the Patriarca
Family of La Cosa Nostra for at least the period . . . during which
statements of co-conspirators received in evidence were made and
that each of them was a member with knowledge of the scope and
nature of the RICO conspiracy.
Tr. vol. 50, pp. 165-66. The court further found "that each of the
substantive crimes charged against each of the defendants in this case
has been proved by a preponderance of the evidence to have been
committed in furtherance of the RICO conspiracy."
Id. at p. 169.
Taking into consideration evidence of these defendants' frequent visits
to 98 Prince Street, their participation in discussions and sessions
involving decision-making by Gennaro Angiulo concerning various illegal
activities of the Family, including some in which they participated, the
district court concluded that both Angiulo and Kazonis
[were] aware of the organizational relationship among Gennaro
Angiulo and others who participated in conversations in his presence
and that [they] knew the nature and scope of the RICO conspiracy --
that is, the Patriarca Family of La Cosa Nostra -- including its
willingness to engage in extreme criminal activities, even murder,
when those in decision-making positions felt the need to resort to
extreme measures to protect what they perceived to be the interests
of the organization.
Tr. vol. 51, pp. 41-44. The defendants objected to these conclusions.
[**34]
n16 Although the jury eventually acquitted both Angiulo and Kazonis on
the conspiracy charges, it does not follow that the district court erred
in finding that they were participating members of the RICO conspiracy
for the purpose admitting evidence pursuant to Rule 801(d)(2)(E). While
the more lenient preponderance of the evidence standard supports the
district court's
Petrozziello finding, the defendants'
convictions for the RICO crimes would have to have been based, of
course, upon findings beyond a reasonable doubt.
See
United States v. Masse, 816 F.2d 805, 810 n.8 (1st Cir. 1987).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
This argument lacks merit. As we recently pointed out in
United States v. Cintolo, "it is settled law . . . that one who
joins an ongoing conspiracy is deemed to have adopted the prior acts and
declarations of coconspirators, made after the formation and in
furtherance of the conspiracy." 818 F.2d at 997; see also
United States v. Baines, 812 F.2d 41, 42 (1st Cir. 1987). As
long as it is shown that a party, having joined a conspiracy, is aware
of the
[**35]
conspiracy's features and general aims, statements pertaining to the
details of plans to further the conspiracy can be admitted against the
party even if the party does not have specific knowledge of the acts
spoken of.
See id.;
United States v. Arruda, 715 F.2d 671, 685 (1st Cir. 1983).
The defendants do not challenge the court's finding that they were
members of the alleged RICO conspiracy and it was not clearly erroneous
for the district court to conclude that they were aware, generally, that
the Patriarca Family engaged in violent
[*970]
crimes, even murders, to further its own interests. In these
circumstances it was proper for the court to allow into evidence
statements of alleged RICO co-conspirators concerning murder plans on
behalf of the Patriarca Family.
See
United States v. Cintolo, 818 F.2d at 998;
United States v. Baines, 812 F.2d at 42;
United States v. Arruda, 715 F.2d at 684-85.
B. Insufficient Limiting Instructions
The defendants' more substantial claim is that the conversations
pertaining to the organization's murder plans were completely irrelevant
to the counts upon which the
[**36] jury
convicted them. They argue that even if the co-conspirator statements
were admissible on the RICO counts, the district court did not properly
instruct the jury to compartmentalize the evidence in a way that would
sufficiently protect them from the jury's consideration of that evidence
with regard to the non-RICO crimes for which they were convicted. As a
result, they contend that they were prejudiced by "evidentiary
spillover" and deprived of fair trials. n17
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n17 This issue was raised on several occasions in the course of hearings
pertaining to the district court's
Petrozziello findings and
proposed jury instructions. Tr. vol. 50, pp. 10-19, 72-76; Tr. vol. 51,
pp. 77-87; Tr. vol. 52, p. 217, 227. The defendants argued that the jury
should have been instructed to ignore all alleged co-conspirator
statements not pertaining to the particular predicate offenses charged
against them.
See Tr. vol. 50, pp. 17-18. Although conceding that
they cannot claim improper joinder of substantive counts in the
indictment, the defendants attempt to analogize from misjoinder cases to
argue that an "appropriate limiting instruction" was necessary to
safeguard against "evidentiary spillover." We have searched the record
for a proposed limiting instruction from the defendants and found none.
We note, however, that since the defendants objected throughout the
trial to the jury's consideration of alleged co-conspirator statements
pertaining to murders and maintained that objection when reluctantly
accepting the limiting instruction proffered and given by the court,
their challenge to the instruction is sufficiently preserved for our
review.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**37]
In setting forth its
Petrozziello findings the district court
found that the conversations of alleged RICO co-conspirators regarding
the murder plans would be admissible as evidence tending to show the
defendants' motive, design or intent in participating in the RICO
conspiracy or committing the other substantive violations charged in the
indictment. Tr. vol. 50, p. 169. The court later instructed the jury to
limit its consideration of the tape-recorded statements by alleged
co-conspirators as follows (the defendants' names and the corresponding
counts on which they were convicted are presented in italics):
During the trial and especially during your hearing of the
tape-recorded conversations you have heard evidence of alleged
statements by alleged co-conspirators. Unless I instructed you
otherwise in a particular instance, you may consider such evidence
without any special limitations as you are weighing the charges
against each of the defendants in Counts 1 [RICO conspiracy], 2
[substantive RICO violation], and 6 [conspiracy to obstruct
justice (Angiulo and Kazonis)] of the indictment except
as to your consideration of predicate acts charged.
When you are [**38]
considering Counts 3 [Cincotti], 4 [illegal gambling (Kazonis and
Angiulo)], 5 [illegal gambling (Angiulo: "Las Vegas Nights")],
7 [obstruction of justice (Kazonis)] and 8 [obstruction of
justice (Angiulo)] and when you are considering predicate acts
charged in Counts 1 and 2, the following limiting instruction
applies:
In relation to any charge against a particular defendant in Counts
3, 4, 5, 7 and 8, when you are considering evidence of a
co-conspirator statement made when that defendant was not present,
you may consider it for the limited purpose of such bearing, if any,
as you find it to have in relation to the intent, motive or other
state of mind of that defendant. You will not consider it for any
other purpose except as permitted by the following instruction:
You will not consider evidence of a co-conspirator statement made
when the defendant was not present as evidence of the defendant's
participation in a particular offense or predicate act charged
unless, first, that statement related [*971] to
the particular offense or predicate act charged in the count you are
considering and, second, that statement related to participation in
that offense [**39] or
predicate act by the defendant as to whom you are considering the
charge. (Emphasis added.)
Tr. vol. 52, p. 175. In short, the jury was allowed to consider the
statements of alleged co-conspirators for whatever purpose in their
determination that Kazonis was guilty, and Angiulo not guilty, of
conspiring to obstruct justice (Count 6). However, in considering
whether Angiulo and Kazonis were guilty on the illegal gambling counts
(Counts 4 and 5) and whether they were guilty on the substantive
obstruction of justice counts (Counts 7 and 8), the jury could only
consider the alleged co-conspirator statements as they might bear upon
those defendants' general states of mind, but not otherwise as proof of
their commission of the crimes charged
unless the statements
related to (a) the substantive offenses charged and (b) the particular
defendant's participation in that substantive offense. In addition, at
the outset of its charge to the jury, the district court instructed the
jury to consider separately each separate charge against each individual
defendant. Tr. vol. 52, p. 145.
1. Co-Conspirator Statements and the Conspiracy to Obstruct Justice
Charge Against Kazonis [**40]
While we recognize the inherent complications involved in designing a
jury charge that will compartmentalize evidence of separate, but
interconnected, conspiracies in the context of a multiple defendant RICO
trial of this sort, we are troubled by the court's instruction that the
jury could consider, "without any special limitation," statements of the
"alleged co-conspirators" in determining Kazonis's guilt or innocence in
the alleged conspiracy to obstruct justice (Count 6). By so instructing,
the court allowed the jury to consider statements of alleged
RICO
co-conspirators regarding plans to murder Harvey Cohen and others when
determining whether Kazonis participated in a wholly separate conspiracy
to obstruct justice. The statements pertaining to the conspiracy to
murder Harvey Cohen and others were largely irrelevant to the latter
conspiracy. n18
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n18 We note, however, that Kazonis cannot object to the jury's
consideration of statements concerning plans to murder Walter LaFreniere
in assessing his guilt under Count 6. Although the indictment alleged
that Kazonis conspired, with others, to obstruct justice by agreeing
only "to threaten, inform, request and otherwise cause Walter LaFreniere
to refuse to testify" before the Grand Jury, it also alleged that
members of the same obstruction conspiracy agreed, as part of that
conspiracy, to kill Walter LaFreniere. Since the district court found,
by a preponderance of the evidence, that Kazonis was a member of the
obstruction conspiracy and that violent means were employed by other
members of that conspiracy to further its objectives, the statements of
co-conspirators regarding plans to murder LaFreniere were admissible
against him on Count 6.
See, e.g.,
United States v. Cintolo, 818 F.2d at 997-98;
United States v. Arruda, 715 F.2d at 685.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**41]
Nevertheless, we are convinced, in light of the evidence and what the
jury did find, that any improper failure to give a further limiting
instruction did not harm Kazonis.
First, the jury did not find him guilty of either the RICO conspiracy or
the substantive RICO offense charged in the indictment, and returned
mixed verdicts against the defendants charged with those offenses. This
shows that the jury was able to isolate evidence relevant to the RICO
conspiracy from that relevant to the separate alleged conspiracy to
obstruct justice.
See
United States v. Porter, 764 F.2d 1, 13 (1st Cir. 1985) (fact
that jury returned different verdicts against jointly charged and tried
co-defendants indicates that court's limiting instruction enabled jury
separately to consider evidence pertaining to guilt or innocence of each
defendant).
Second, the instruction allowing the jury unlimited consideration of the
alleged RICO co-conspirators' statements did not apply to or taint the
jury's conviction of Kazonis for the
substantive obstruction of
justice count (Count 7), and there was more than sufficient evidence for
the jury to find that Kazonis obstructed justice by interfering
[**42] with
LaFreniere's appearance before the grand jury.
See supra pp. 7-8.
[*972] To
convict Kazonis for
conspiring to obstruct justice, the jury
needed to find, in addition to the elements of the substantive offense,
only that Kazonis agreed, or reached an understanding, with others to
accomplish that offense. The existence of such an agreement or mutual
understanding was established by more than substantial evidence,
see
supra at p. 7, regardless of the collateral evidence of statements
of alleged RICO co-conspirators concerning the Patriarca Family's murder
plans before the jury.
Thus, we find harmless beyond reasonable doubt the district court's
error in allowing the jury broadly to consider alleged RICO
conspirators' statements in assessing the separate obstruction of
justice conspiracy charge asserted against Kazonis.
Cf.
United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 732-33, 88
L. Ed. 2d 814 n.13 (1986) (error involving misjoinder of defendants
requires reversal only if it had a substantial and injurious effect or
influence in determining jury's verdict, and a limiting instruction to
jury to separately consider evidence for guilt of separate
[**43]
defendants minimizes any prejudice). n19
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n19 In so concluding, we also reject Kazonis's contention that he was
entitled to an instruction that the scope of his involvement in the
alleged conspiracy to obstruct justice did not include murder plans.
Brief of William Kazonis at 22-24. As we pointed out,
supra note
18, the government did not allege that Kazonis agreed to murder
LaFreniere as part of the conspiracy to obstruct justice, but the
statements of co-conspirators who did plan to murder LaFreniere in order
to carry out the same conspiracy to obstruct justice were admissible
against him. Moreover, in instructing the jury on the alleged conspiracy
to obstruct justice, the district court did not focus the jury's
attention on statements concerning any murder plans. It properly
instructed that the government was required to prove that Kazonis
intentionally agreed to obstruct justice through unlawful means, which
could include efforts to advise or plan "with the witness to invoke the
Fifth Amendment improperly" or "to limit or give false testimony before
the Grand Jury." Finally, there was clearly sufficient evidence for the
jury to convict Kazonis of conspiring to obstruct justice without taking
into account statements concerning the Family's murder plans.
See
supra p. 7.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**44]
2. Co-conspirator Statements and the Substantive Charges Against
Kazonis and Angiulo
On the substantive charges that Angiulo engaged in an illegal gambling
business and Kazonis obstructed justice (Counts 5 and 7), the jury was
permitted to consider statements of "alleged co-conspirators" for the
bearing such statements might have on the defendants' "intent, motive or
other state of mind."
We can understand that the statements of members or associates of the
Patriarca Family could be relevant to show how it deals with those who
either fail to cooperate with the Family or interfere with its
operations. In that sense, statements of the alleged RICO
co-conspirators pertaining to murder plans could be relevant to show why
individuals knowledgeable in the affairs of the Family would carry out
certain offenses on its behalf. n20 As part of its
Petrozziello
findings, the district court found, by a preponderance of evidence, that
both Angiulo and Kazonis were associates of the Patriarca Family and
knowledgeable in its affairs and that they carried out the predicate
acts charged in the indictment in furtherance of the Family's interests.
Thus, statements by the RICO conspirators
[**45]
showing generally how the Family dealt violently with uncooperative
individuals could have been relevant to show Angiulo's and Kazonis's
states of mind in agreeing to carry out the predicate offenses
underlying the RICO counts as the court instructed.
Cf.
United States v. Daly and Giardina, 842 F.2d 1380, slip. op.
at 2295 (2d Cir. 1988), (taped conversations of alleged RICO
co-conspirators not mentioning
[*973]
defendant admissible to show setting of alleged offense).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n20 Kazonis was charged with substantive obstruction of justice both as
a predicate offense underlying the RICO counts and as a separate
offense. Angiulo was charged with the operation of an illegal gambling
business both as a predicate offense of the RICO counts and as a
separate offense. We understand how -- given the interconnection between
the separately charged offenses and the predicate acts underlying the
RICO conspiracy count for both Kazonis and Angiulo -- the district court
could conclude that Rule 801(d) (2) (E) permitted the admissibility of
these statements against all members of the charged RICO conspiracy.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**46]
On the other hand, as both Kazonis and Angiulo point out, the relevance
of such statements is highly attenuated when there is no proof that they
had actual knowledge of the contents of those statements. The fact that
such conversations included discussions of murder added the possibility
that they could prejudice the defendants if given undue weight by the
jury. We might question the propriety of the court's instruction, in
this light, were it not for the subsequent limitation (italicized in the
excerpt above) that minimized the weight that the jury attached to such
statements; the jury was only permitted to consider such statements,
beyond implications as to the defendants' states of mind, if they were
made in the presence of the particular defendant in question
and
related to the offense for which that defendant was charged.
For Angiulo, the statements of alleged co-conspirators relating to
murder plans, made outside of his presence and unrelated to the charge
that he operated an illegal gambling business, were not probative on
that alleged offense. That the Patriarca Family was willing to murder
people that interfered with, or failed to carry through, its operations
was
[**47]
irrelevant to Angiulo's state of mind in conducting such an operation.
Nevertheless, the limiting instruction (set forth in italics above)
properly directed the jury not to consider those statements in deciding
whether Angiulo participated in the illegal gambling offense unless he
was present when the statements were made and they related to that
offense. n21 Looking at the instruction as a whole, we conclude that it
did not result in prejudicial error warranting reversal of Angiulo's
conviction for operating an illegal gambling business.
Cf.
United States v. Porter, 764 F.2d at 13 (appropriate limiting
instructions adequately safeguarded against evidentiary spillover; we
will not entertain speculative allegations of prejudice).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n21 There were no alleged co-conspirator statements admitted into
evidence concerning murders that were made in Angiulo's presence and
related to his alleged operation of Las Vegas Nights.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
For Kazonis -- who was found by the district court, in its
Petrozziello [**48]
findings, to be a member of the alleged RICO conspiracy, knowledgeable
about the Family's general operations (including murders), and to be
furthering the Family's interests through the obstruction of justice --
evidence of the Family's practices in dealing violently with those they
disapproved of may have had some bearing on his intent or motive to
interfere with LaFreniere's testimony before the grand jury.
See
United States v. Daly and Giardina, supra at 2295. In any event, the
limiting instruction insured that, in assessing Kazonis's
"participation" in the substantive obstruction of justice offense, the
jury would not consider the statements concerning the Family's murder
plans, other than those involving Walter LaFreniere,
see supra
note 18, because those statements were made outside of Kazonis's
presence and were unrelated to the alleged obstruction of justice.
Beyond this, the district court properly instructed the jury on the
specific facts that the government was required to prove in order to
convict Kazonis for obstructing justice,
see supra note 19, and
there was more than sufficient evidence for the jury to convict him on
that count, without any consideration
[**49] of
statements pertaining to murder plans.
See supra pp. 7-8.
C. Admissibility of Expert Witness Testimony Concerning the Defendants'
Association with the Patriarca Family
The government called FBI Agent James Nelson to give expert testimony on
the structure and operations of La Cosa Nostra and, after listening to
evidence presented at trial, his opinion regarding the defendants'
relationships to that organization. He testified that both Angiulo and
Kazonis were "close associates" of the Patriarca Family of La Cosa
Nostra.
While not contesting Agent Nelson's qualifications as an expert on La
Cosa Nostra, Angiulo and Kazonis argue that his testimony violated their
rights to confrontation
[*974] under
the Sixth Amendment because the district court allowed him to testify
even though he did not reveal the identity of certain informants. They
also contend that the district court improperly admitted his testimony
on issues that were within the province of the jury or related to the
defendants' states of mind. We address each of these contentions.
At trial, the defendants maintained that allowing Agent Nelson to
testify without disclosing the identities of informants would
[**50]
violate
Rule 705 of the Federal Rules of Evidence, which requires expert
witnesses to disclose facts and data underlying their opinions on
cross-examination. n22 They also argued that they would be deprived of
their Sixth Amendment rights to fully cross-examine the witness because
they would not be able to ascertain or test his credibility without
knowing the sources of his information. While preserving an objection
that none of his testimony should be allowed, the defendants agreed to
the court's instruction to Agent Nelson that he not answer any questions
on direct examination that would be based upon information provided by
informants whose identity he could not disclose on cross-examination.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n22 Rule 705, "Disclosure of Facts or Data Underlying Expert Opinion,"
provides:
The expert may testify in terms of o