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United States v. Gallo

decided: November 2, 1988.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOSEPH N. GALLO, JOSEPH ARMONE, JOSEPH CORRAO, ROBERT DIBERNARDO, JAMES FAILLA, JOSEPH ZINGARO, THOMAS AGRO, ROBERT DESIMONE, JACK GIORDANO, ANGELO RUGGIERO, ANTHONY VITTA, GEORGE DALY, LOUIS GIARDINA, SALVATORE MIGLIORISI, JULIE MIRON AND MILDRED RUSSO, DEFENDANTS, ANTHONY VITTA, JOSEPH ARMONE, SALVATORE MIGLIORISI, JOSEPH GALLO, DEFENDANTS-APPELLANTS



Appeals from judgments of conviction following a jury trial entered in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge). Affirmed.

Oakes, Miner and Altimari, Circuit Judges.

Author: Altimari

ALTIMARI, Circuit Judge:

Defendants-appellants Anthony Vitta, Joseph Armone, Salvatore Migliorisi, and Joseph Gallo appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York following a jury trial before Judge Jack Weinstein. In a thirteen count indictment, defendants were charged with various offenses arising from their participation in a racketeering enterprise. Defendant Vitta was convicted of one count of conspiring to engage in racketeering in violation of 18 U.S.C. § 1962(d), one count of obstructing justice in violation of 18 U.S.C. § 1503, one count of aiding and abetting extortion and one count of conspiring to extort in violation of 18 U.S.C. § 1951(a). Vitta was sentenced to a total of 10 years of imprisonment and was fined $250,000. Defendant Armone was convicted of one count of conspiring to engage in racketeering in violation of 18 U.S.C. § 1962(d), one count of aiding and abetting bribery in violation of 18 U.S.C. § 201(b), one count of aiding and abetting interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952, one count of aiding and abetting extortion and one count of conspiring to extort in violation of 18 U.S.C. § 1951(a). Armone was sentenced to a total of 15 years of imprisonment and was fined $820,000. Defendant Migliorisi was convicted of one count of obstructing justice in violation of 18 U.S.C. § 1503, one count of aiding and abetting extortion and one count of conspiring to extort in violation of 18 U.S.C. § 1951(a). Migliorisi was sentenced to a total of three years of imprisonment and was fined $25,000. Defendant Gallo was convicted of one count of conspiring to engage in racketeering in violation of 18 U.S.C. § 1962(d), two counts of aiding and abetting bribery in violation of 18 U.S.C. § 201(b), and one count of aiding and abetting interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952. Gallo was sentenced to a total of 10 years of imprisonment and was fined $380,000.

On appeal, Armone and Gallo contend that there was insufficient evidence to convict them of the bribery charge, there was insufficient evidence to convict Armone of the extortion charges, the government made improper use of immunized testimony given by Gallo before a state grand jury, evidence developed from the electronic surveillance of two co-conspirators should have been suppressed, and that the district court abused its discretion in limiting cross-examination of a government witness. Migliorisi contends that there was insufficient evidence to convict him of the extortion charges, and that the district court abused its discretion in denying him a separate trial. For the reasons stated below, we affirm the judgments of conviction as to all defendants on all counts.

BACKGROUND

Vitta, Armone, Migliorisi, and Gallo were charged with participation in the affairs of the Gambino Crime Family racketeering enterprise. As originally constituted, the case below involved 16 defendants charged with the commission of various acts arising from their involvement with the "Family." In response to motions made by several defendants, however, seven separate trials were held. See United States v. Gallo, 668 F. Supp. 736 (E.D.N.Y. 1987). Evidence at trial, which included electronic surveillance gathered from the homes and phones of co-defendant Anthony Ruggiero and unindicted co-conspirator Paul Castellano, showed the Family to be organized in a hierarchical fashion. Most of the Family's criminal activity is carried out by crews of "soldiers," often with the assistance of "associates," who are not members of the Family. Each crew is directed by a "captain." The captains, in turn, report to a "consiglieri," who is the third-ranking member of the Family, with responsibility for day-to-day operations. Family rules dictate that a member may not engage in any criminal activity without the approval of his superior. The government's evidence at trial established that Gallo was consiglieri to the Family, Armone was the captain of a crew, Vitta was a soldier in Armone's crew, and Migliorisi was an associate of Vitta.

The indictment charged Vitta, Armone, and Gallo with conspiring to conduct and participate in the conduct of the affairs of the Gambino Family through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). The alleged predicate acts of racketeering included, inter alia, bribery, obstruction of justice, interstate travel in aid of racketeering, extortion, and extortionate extension and collection of credit. In addition, defendants were charged with the substantive crimes which were alleged as predicate acts of racketeering.

At trial, Gambino Family associate Joseph Iannuzzi testified on behalf of the government regarding charges of bribing federal prison officials. Iannuzzi, who had a history of loansharking involvement with Armone crew member Thomas Agro, agreed to cooperate with an FBI investigation soon after he was severely beaten for failing to make timely payments on his debt to Agro. Iannuzzi testified that Dominic Cataldo, a recently convicted soldier of the Colombo Crime Family, had approached him and asked whether Iannuzzi could arrange through a "connection" in Washington, D.C., to have Cataldo assigned to a minimum security prison. In his undercover capacity, Iannuzzi determined that Cataldo was already so assigned. Thereafter, Iannuzzi contacted Cataldo, informed him of the assignment, and credited his connection for the arrangement.

In accordance with Family protocol, Cataldo subsequently contacted Agro to receive permission to have Iannuzzi perform another favor for a member of the Colombo Family. This time, Cataldo asked Iannuzzi to have his connection arrange the transfer of Carmine Persico, the boss of the Colombo Family, from a prison in Texas to the federal penitentiary in Danbury, Connecticut. One month later, Iannuzzi informed Cataldo that he would be able to arrange the Persico transfer, at a cost of $40,000, $25,000 of which was to go to Iannuzzi's connection. Persico was subsequently transferred at the request of the FBI. The Colombo Family, however, did not immediately pay for the favor.

In the meantime, Iannuzzi was requested by Agro to perform another favor, this time to effect the transfer of defendant Gallo's son. The Gambino Family feared that if Iannuzzi's connection was not paid for the Persico transfer, he would refuse to perform the favor for Gallo. Thereafter Agro, Gallo, and their superiors in the Gambino Family met with their Colombo Family counterparts, and it was agreed that the Colombos would pay $20,000 for the Persico transfer. To insure that his own favor would be accomplished, Gallo provided $20,000 in advance so that Iannuzzi could arrange the transfer of his son. Subsequently, Iannuzzi was given $20,000 by Cataldo in satisfaction of the Colombo Family obligation. In a conversation with Armone, Iannuzzi was told that he was doing "a real good thing" for which he would be rewarded. Agro later told Iannuzzi that he was made a "member" of Armone's crew.

George Yudzevich, who associated with the Gambino and other crime families, testified on behalf of the government regarding the extortion charges. Yudzevich operated a debt-collection agency and one of his clients was the Stewart Color Laboratory, a commercial photography business co-owned by Jerry Schochet. Testimony at trial revealed that Yudzevich, along with Vitta and Migliorisi, approached Schochet to try to "get [a] foot in the door of Stewart Color." Vitta told Schochet that he would obtain legal assistance if Yudzevich ever encountered problems collecting debts for Stewart Color, and asked how much this service was worth to Schochet. Schochet's response was less than what Vitta had hoped for, prompting Vitta to threaten to "crack [Schochet's] head open [with an ashtray] so he [could] watch the blood come down." An agreement was then reached, whereby Schochet would pay, in cash, $1,000 per week to Vitta. Once each week for the next two weeks, Yudzevich and Migliorisi visited Schochet and collected an envelope filled with money. This money was given to Vitta, who kept some for himself, paid some to Yudzevich and Migliorisi, and paid the remainder to his superiors in the Family including Armone. After two weeks, Schochet indicated that he could not make the payments without placing someone on the payroll. Thereafter, Vitta, and later Migliorisi, were placed on the Stewart Color payroll.

Discussion

A. Sufficiency of the evidence regarding the attempted bribery of public officials.

Armone and Gallo contend that there was insufficient evidence relating to the bribing of public officials to support either a conviction on substantive bribery charges, or a finding that bribery constituted a predicate act to a pattern of racketeering. They argue that because the government did not prove the existence of a federal official to whom bribes were actually paid, proof that payment was made to a "connection in Washington" was not sufficient to prove the intent to bribe a public official. "[A] defendant who contends that the evidence was insufficient to convict him bears a very heavy burden." United States v. Pedroza, 750 F.2d 187, 198 (2d Cir. 1984). In determining the sufficiency of evidence to support a conviction, a reviewing court must "view the evidence in the light most favorable to the government [,] . . . credit every inference that could have been drawn in the government's favor, and ...


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