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United States v. Ardito

January 31, 1986

UNITED STATES OF AMERICA, APPELLEE,
v.
JOHN GREGORY ARDITO AND VINCENT POLLINA, DEFENDANTS-APPELLANTS



Appeals from judgments of conviction entered July 11, 1985 in the District of Connecticut, T. F. Gilroy Daly, Chief Judge, after jury trial, convicting appellants of conspiracy to obstruct justice, in violation of 18 U.S.C. §§ 371, 1503 (1982). Affirmed.

Author: Timbers

Before: FRIENDLY, TIMBERS and PRATT, Circuit Judges.

TIMBERS, Circuit Judge:

Appellants John Gregory Ardito and Vincent Pollina appeal from judgments of conviction entered July 11, 1985 in the District of Connecticut, T.F. Gilroy Daly, Chief Judge. Following a jury trial, appellants were convicted of conspiracy to obstruct justice, in violation of 18 U.S.C. §§ 371, 1503 (1982).

We find that the principal issue on appeal arises from appellants' assertion that the obstruction of justice statute, 18 U.S.C. § 1503, requires proof that appellants knew the proceeding they obstructed was a federal proceeding. We hold that § 1503 does not require a government to prove that the proceedings which appellants to be federal in nature. Other subordinate issues are raised.

For the reasons set forth below, we affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Appellants were convicted of conspiracy to obstruct justice because of their out-of-court activities during the trial of Francis and Gus Curcio. After the conclusion of the trial of the Curcios in Hartford for loansharking before a jury and T. Emmet Clarie, District Judge, appellants were indicted on August 30, 1984 for conspiring to aid the Curcios in obtaining a mistrial. The Curcios also were indicted in the instant case for conspiring to obstruct justice. They pleaded guilty before trial. Our Court previously dealt with various aspects of the Curcio loansharking case. See United States v. Curcio, 712 F.2d 1532 (2 Cir. 1983); United States v. Curcio, 694 F.2d 14 (2 Cir. 1982); United States v. Curcio, 680 F.2d 881 (2 Cir. 1982).

The Curcio loansharking trial before Judge Clarie was plagued by a number of interruptions. The government presented its case between October 4 and October 19, 1983. Late in the evening of October 20, the first day of defendants' case, defendant Cug Curcio checked into a hospital complaining of chest pains. The next morning, he checked out of the hospital. The court granted a postponement to allow for a further medical examination. On the day that trial resumed, October 27, Gus Curcio, who was seated at the defense table and in the presence of the jury, appeared to suffer a heart attack, clutching his throat and chest. Believing that a prosecutor was smiling at the outburst, co-defendant Francis Curcio charged at the prosecutor. At this point, Jude Clarie adjourned the trial and appointed a cardiologist to examine Gust Curcio. The examination was inconclusive, and the Curcios moved for a mistrial on November 8. Judge Clarie denied the motion and, after an angiogram was arranged for Gus Curcio and indicated no heart malfunction, ordered the trial to resume on November 15. On November 15, defense counsel reported that Francis Curcio had been injured in an automobile accident. Judge Clarie denied another motion for a mistrial. Francis Curcio attended the remainder of the trial in a wheelchair. The Curcio loansharking trial was ultimately resumed on December 6, with the presentation of evidence completed on December 8 and a verdict of guilty returned by the jury on December 14, 1983.

During the Curcio loansharking trial, the government conducted electronic surveillance at various locations, including a social clubhouse in Bridgeport, Connecticut, and premises in the Bronx occupied by appellant Ardito. Two conversations relating to the Curcio trial were introduced as evidence at appellants' obstruction of justice trial.

In a November 4, 1983 conversation between appellant Pollina and the Curcios at the Bridgeport clubhouse, the discussion included the loansharking trial, the desire for postponements and a mistrial, and the loansharking business. Appellants Ardito and Pollina also were overheard in a December 7, 1983 conversation which took place in the Bronx. Appellants discussed the Curcio trial. Ardito handed Polina three pills and instructed Pollina to give them to the Curcios. Ardito also gave Pollina an inhalant that he described as benzedrine, a type of amphetamine, for one of the Curcios to take. The pills were designed to cause one of the Curcios. presumably Gus, to vomit in court. The December 7 conversation also included loansharking business information that Ardito wanted relayed to the Curcios.

A government attorney reported the December 7 conversation to Judge Clarie on December 8, the last day of the Curcio trial. Judge Claire warned the parties that further disturbances in the courtroom would result in revocation of the Curcios' bail. No further disruptions occurred.

At appellants' obstruction of justice trial, the recorded conversation of November 4 and December 7 were played for the jury. A toxicologist testified on behalf of the government regarding the effect of amphetamines in the government regarding the effect of amphetamines in inducing the symptoms of a heart attach and the effect of the drug Mettryl in inducing vomiting. An FBI agent defined such terms as "captain", "capo", ...


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