11-2995-cr
United States v. Basciano

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of December, two thousand fifteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
--------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                     v.                                              No. 11-2995-cr

VINCENT BASCIANO, AKA Vinny Gorgeous,
AKA Vinny from the Bronx,
                       Defendant-Appellant,

JOSEPH MASSINO, PATRICK DEFILIPPO, AKA
Patty from the Bronx, JOHN JOSEPH SPIRITO,
AKA Johnny Joe, EMANUEL GUARAGNA,
ANTHONY FRASCONE, AKA Anthony Nicole,
AKA Anthony the Hat, ANTHONY SIANO,
RUSSEL TRUCCO, AKA The Truck, ANTHONY
DONATO, AKA Little Anthony,
                                 Defendants.
--------------------------------------------------------------




                                                     1
FOR APPELLANT:                            Ryan Thomas Truskoski, Ryan Thomas
                                          Truskoski, P.A., Harwinton, Connecticut.
FOR APPELLEE:                             Taryn A. Merkl, Amy Busa, Nicole M.
                                          Argentieri, Jack Dennehy, Assistant United
                                          States Attorneys, for Robert L. Capers, United
                                          States Attorney for the Eastern District of New
                                          York, Brooklyn, New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Nicholas G. Garaufis, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on July 21, 2011, is AFFIRMED.

       For the third time, defendant Vincent Basciano, one-time acting boss of the

Bonanno organized crime family, stands convicted following a jury trial of crimes

committed as part of that enterprise. See United States v. Basciano, 465 F. App’x 9 (2d

Cir. 2012); United States v. Basciano, 384 F. App’x 28 (2d Cir. 2010). Serving two

consecutive life sentences as a result of these three convictions, Basciano’s latest

conviction for conspiratorial and substantive murder in aid of racketeering, see 18 U.S.C.

§ 1959(a)(1), (5); and for discharging a firearm in furtherance of those crimes of

violence, see id. § 924(c)(1)(A)(iii), pertains to his ordering the murder of Bonanno

confederate Randolph Pizzolo. Basciano argues on appeal that the district court erred in

(1) declining, without a hearing, to suppress statements made by Basciano to a prison

cooperator in violation of his Fifth and Sixth Amendment rights; (2) failing to instruct the

jury as to multiple conspiracies and the termination of a conspiracy by withdrawal; and

(3) responding to a jury note in writing rather than orally in open court. We assume the



                                             2
parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Denial of Motion To Suppress

       Basciano contends that recorded statements he made on January 3 and 7, 2005, to

fellow prisoner Joseph Massino, the official boss of the Bonanno family, were procured

in violation of the Fifth and Sixth Amendments because Massino was then operating as a

government informant (the “Massino Tapes”).1 Some background is necessary to our

discussion of why this argument fails on the merits.

       In late 2004, Massino had informed federal authorities that Basciano—who had

been incarcerated since November 2004 on a charge of racketeering conspiracy in a

separate case (the “03-cr-929 case”)—was pursuing from jail the murders of both Pizzolo

and the Assistant United States Attorney prosecuting Basciano’s case.      Pizzolo was, in

fact, found shot dead on a Brooklyn street on December 1, 2004. Massino consented to

the January recording of his conversations with Basciano about these as-yet-uncharged

crimes. On January 26, 2005, a grand jury charged Basciano and Dominick Cicale in this

case with federal crimes relating to the Pizzolo murder.




1
 At the same time that it denied suppression of the Massino Tapes, the district court
denied suppression of unrecorded statements Basciano made to Massino on November 23
and December 3, 2004 (the “Massino Conversations”). The district court concluded that
Fifth and Sixth Amendment protections did not apply to the latter because Massino was
not yet acting as a government agent. See United States v. Basciano, 763 F. Supp. 2d
303, 324–28, 331 n.13 (E.D.N.Y. 2011). Because Basciano does not dispute that
conclusion on appeal, we here address only the admissibility of the Massino Tapes.
                                             3
         Although it is undisputed that Massino was acting as a government agent at the

time the Massino Tapes were recorded, we identify no Fifth or Sixth Amendment

violation for the reasons set forth below.

         a.    Sixth Amendment

         Basciano argues that his statements to Massino were obtained in violation of his

Sixth Amendment right to counsel, which attached by virtue of his indictment in the 03-

cr-929 case. See Massiah v. United States, 377 U.S. 201, 205–06 (1964); accord McNeil

v. Wisconsin, 501 U.S. 171, 178–79 (1991). The argument fails because, although the

Sixth Amendment rule applies to statements obtained by the government using an

undercover agent, it does not extend to inquiries about uncharged crimes. See Illinois v.

Perkins, 496 U.S. 292, 299 (1990); United States v. Jacques, 684 F.3d 324, 331 (2d Cir.

2012).

         Basciano concedes that, at the time of the Massino Tapes, he had not yet been

charged with the crimes for which he stands convicted in this case. Nevertheless, he cites

Texas v. Cobb, 532 U.S. 162 (2001), to argue that the Sixth Amendment rights that

attached under 03-cr-929 to his racketeering charges encompassed the Pizzolo crimes

committed in furtherance of the same racketeering enterprise. This misconstrues Cobb,

which extends Sixth Amendment rights to uncharged crimes only if they “would be

considered the same offense under the Blockburger test” usually applied to double

jeopardy challenges. Id. at 173. That test asks whether the elements of each offense are

identical or whether each “contains an element not contained in the other.” United States

v. Dixon, 509 U.S. 688, 696 (1993); see Blockburger v. United States, 284 U.S. 299, 304

                                             4
(1932). Our earlier decision in United States v. Basciano, 599 F.3d 184 (2d Cir. 2010),

makes clear that the Pizzolo murder charges and the 03-cr-929 racketeering charges

contain distinct elements. Indeed, in Basciano we explicitly reached that conclusion with

respect to the 03-cr-929 racketeering conspiracy and the Pizzolo murder conspiracy. See

id. at 197–99.    Moreover, although Basciano did not there challenge the Pizzolo

substantive murder charge, see id. at 188 n.2, we referenced the “long recognized”

principle that “defendant may be prosecuted both for substantive racketeering in violation

of § 1962(c) and for the commission of violent crimes in aid of racketeering in violation

of § 1959(a)(1)-(3)” without violating double jeopardy, see id. at 198. This principle

forecloses Basciano’s argument pursuant to Cobb based on the Pizzolo substantive

murder charge.2

      Thus, Basciano’s Sixth Amendment rights in the 03-cr-929 case did not extend to

the investigation of the as-yet-uncharged Pizzolo murder crimes here at issue, nor to the




2
   Basciano did conclude that double jeopardy required dismissal of the substantive
racketeering count then charged in 05-cr-060. See 599 F.3d at 200–14 (explaining
identicality of enterprise and pattern elements of substantive racketeering charges in 03-
cr-929 and 05-cr-060). But Basciano overreads this ruling in arguing that it “means that
the previous case,” i.e., 03-cr-929, “is the same as the instant case,” i.e., 05-cr-060.
Appellant Br. 33. As a result of the mandated dismissal of the substantive racketeering
charge, the Massino Tapes were not used in 05-cr-060 for any charge constituting the
“same offense” as one for which Basciano’s Sixth Amendment rights had already
attached in 03-cr-929 at the time of recording. See Texas v. Cobb, 532 U.S. at 168, 170
(explaining that, where right to counsel has attached for certain offenses, statements are
inadmissible at trial on those charges); United States v. James, 712 F.3d 79, 105 (2d Cir.
2013) (stating that “Sixth Amendment right is offense specific” (internal quotation marks
omitted)). Thus, Basciano’s double jeopardy ruling provides no support for the Sixth
Amendment challenge raised on this appeal.
                                            5
uncharged § 924(c) firearm count that he does not otherwise maintain is part of any 03-

cr-929 offense. Accordingly, this part of his suppression challenge fails on the merits.

       b.     Fifth Amendment

       Basciano contends that his recorded statements were obtained in violation of the

Fifth Amendment because of the compelling pressures inherent in Massino’s status as

then-boss of the Bonanno crime family. The argument fails because, as the Supreme

Court has recognized, there are two “essential ingredients” for police initiated

interrogation to violate the Fifth Amendment: “a ‘police dominated atmosphere,’” and

“compulsion.” Illinois v. Perkins, 496 U.S. at 296 (quoting Miranda v. Arizona, 384 U.S.

436, 449 (1966)). The former is generally not present when a suspect speaks freely to

someone he believes to be a fellow inmate. See id.

       Arizona v. Fulminante, 499 U.S. 279 (1991), cited by Basciano, warrants no

different conclusion. There, the Supreme Court concluded that, although it was a “close”

case, a defendant’s confession to a cooperating inmate was inadmissible because it had

been coerced by exploiting the defendant’s “fear of physical violence” from other abusive

inmates with an offer of protection from the cooperator. Id. at 287–88. This case

presents no such concerns. Nothing in the record indicates that Basciano was fearful of

jail generally or Massino in particular. Rather, as the district court observed, and the

tapes confirm, Basciano and Massino spoke as close criminal confederates occupying the

top tier of the Bonanno family hierarchy. See Illinois v. Perkins, 496 U.S. at 298

(concluding that conversation raised no Fifth Amendment concern where suspect

“viewed the cellmate-agent as an equal and showed no hint of being intimidated”). There

                                             6
was nothing threatening in Massino’s manner when he discussed Pizzolo’s murder with

Basciano. At most, Massino lulled Basciano “into a false sense of security” about these

discussions, which does “not rise to the level or compulsion or coercion to speak” barred

by the Fifth Amendment. Id. at 297.

       Thus, this part of Basciano’s suppression challenge also fails on the merits.

       c.     Failure To Hold an Evidentiary Hearing

       Basciano faults the district court for denying his suppression motion without

holding an evidentiary hearing. Such a hearing is required only “if the moving papers are

sufficiently definite, specific, detailed and nonconjectural to enable the court to conclude

that contested issues of fact” exist. United States v. Getto, 729 F.3d 221, 226 n.6 (2d Cir.

2013). We review the denial of an evidentiary hearing for abuse of discretion, see id.,

which is lacking here.

       Insofar as Basciano argues that the district court was required to hold a hearing to

determine whether Massino coerced Basciano’s recorded statements, we note at the

outset that Basciano made no claim of coercion when he moved to suppress the Massino

Conversations (i.e., the unrecorded statements) in the 03-cr-929 case, a matter on which

the district court held hearings over two days. See United States v. Basciano, 763 F.

Supp. 2d at 324, 327. Nor did Basciano call Massino as a witness at that hearing,

although the district court ensured his availability for that purpose. In now asserting that

he felt “peculiar compulsion” on being “interrogated in close quarters by the ruthless boss

of the Bonanno crime family,” G.A. 70, Basciano does not suggest, much less explain



                                             7
why, such a feeling of compulsion would not have been equally applicable to the

Massino Conversations, which were admitted in the 03-cr-929 case.

       Further, he alleges no “definite, specific, [and] detailed” facts indicating that his

statements were coerced. See United States v. Getto, 729 F.3d at 226 n.6. Rather, he

relies on trial testimony about Massino’s criminal role and conduct to support his claim

of compulsion. The able and experienced district judge, who heard the Massino Tapes

and presided over both Basciano’s 2006 and 2007 trials—at which ample evidence was

adduced of both defendant’s own leadership of the Bonanno family and unhesitating

resort to violence—had a sufficient basis to conclude, without a further hearing, that

Basciano’s recorded statements to Massino were not a product of coercion. See United

States v. Basciano, 763 F. Supp. 2d at 331 (explaining that “facts do not indicate that

Basicano, who was found in [the 03-cr-929 case] to also have held a senior position in the

Bonanno crime family and to have similarly acted ruthlessly, spoke to Massino under

conditions which were sufficient to ‘overbear [his] will to resist and bring about

confessions not freely self-determined’” (second alteration in original) (quoting Rogers v.

Richmond, 365 U.S. 534, 544 (1961))).

       In these circumstances, we identify no abuse of discretion and, thus, reject

Basciano’s suppression challenge in its entirety.

2.     Jury Instructions

       Basciano asserts that he was entitled to jury instructions on multiple conspiracies

and withdrawal from a conspiracy even though he intended to argue neither because (1) if

the jury found that he had entered into a conspiracy with Dominick Cicale to murder

                                             8
Pizzolo, Cicale withdrew from that conspiracy when, soon after Basciano’s November

2004 arrest, Cicale decided not to go through with the murder;3 and (2) when Cicale

thereafter agreed to go through with the Pizzolo murder on orders of Michael Mancuso,

Basciano’s acting underboss, a second conspiracy was formed that did not include

Basciano.   Where a defendant appeals the denial of requested instructions, we will

overturn the conviction “only if that instruction is legally correct, represents a theory of

defense with basis in the record that would lead to acquittal, and the theory is not

effectively presented elsewhere in the charge.” United States v. Quattrone, 441 F.3d 153,

177 (2d Cir. 2006) (internal quotation marks omitted).

       Basciano’s appeal fails the second requirement of this analysis. Nothing in the

record indicates that Cicale ever communicated his decision not to go through with the

Pizzolo murder “in a manner reasonably calculated to reach” Basciano. United States v.

James, 712 F.3d 79, 106 (2d Cir. 2013) (“To withdraw from a conspiracy, a person must

take some affirmative action either by making a clean breast to the authorities or

communicating the abandonment in a manner reasonably calculated to reach co-

conspirators.” (quoting United States v. Jackson, 335 F.3d 170, 182 (2d Cir. 2003))).

Rather, within days of telling Anthony Aiello that they were not going to murder Pizzolo,

Cicale resumed his plans to do just that. See United States v. Berger, 224 F.3d 107, 118

(2d Cir. 2000) (explaining that to withdraw, individual “must not take any subsequent

acts to promote the conspiracy”). In any event, even if Cicale withdrew from the Pizzolo

3
  Basciano did not argue before the district court or the jury that he ever withdrew from
the Pizzolo murder conspiracy, including as a result of his incarceration. Rather, he
maintained that he never joined any such conspiracy.
                                             9
murder conspiracy, that conspiracy itself continued so long as there were at least two

remaining members. See United States v. Miranda-Ortiz, 926 F.2d 172, 175 (2d Cir.

1991). The evidence indicated that Basciano and Mancuso were still members of the

conspiracy and, as the district court found, that Aiello had taken no affirmative steps to

withdraw.    Thus, the district court correctly declined to charge termination of the

conspiracy by withdrawal.

       Without record support for termination of a first conspiracy, Basciano cannot

plausibly assert a second conspiracy. See United States v. Vazquez, 113 F.3d 383, 386

(2d Cir. 1997) (explaining that “to secure a reversal on the ground that the court failed to

give a multiple conspiracy charge, a defendant must prove there were two or more groups

operating separately from one another” and “that failure to give the requested charge

prejudiced defendant”). Such a showing cannot be made where, as here, “there was

ample proof before the jury for it to find beyond a reasonable doubt that defendant was a

member of the conspiracy charged in the indictment.” Id. Here, the record indicates that

Basciano was always a member of the charged conspiracy, both before and after

Mancuso reaffirmed the order to kill Pizzolo. See G.A. 187 (telling Massino that “I

[Basciano] gave the order” to kill Pizzolo); G.A. 245–46 (explaining, in response to

Massino’s question as to why Basciano had not told him earlier of killing Pizzolo, that

“[i]t was already in the works”). Nor can Basciano demonstrate prejudice in light of

ample direct evidence—some from Basciano himself—of his leadership of the single

Pizzolo murder conspiracy.



                                            10
       Accordingly, Basciano’s denied jury instructions challenge is without merit.4

3.     Providing Supplemental Instruction in Writing

       In response to a query from the deliberating jury as to “what circumstances would

[render someone] no longer . . . a member of the conspiracy,” G.A. 161, the district court

sent a written response into the jury room rather than bringing the jury into the courtroom

for further oral instruction. Basciano, who questioned the use of this procedure but failed

to articulate a basis for any objection at the time, now argues that it was structural error

because (1) he was deprived of his right to be present at every trial stage, and (2) all jury

instructions must be read aloud to the jury. We disagree.

       First, although a criminal defendant has the right to be present at “every trial

stage,” Fed. R. Crim. P. 43(a)(2), the challenged action did not deprive Basciano of that

right. There is no dispute that the district court disclosed the content of the jury note to

Basciano’s counsel, elicited counsel’s views, and indicated that its response would be

communicated in writing—all in the presence of Basciano. See G.A. 160–74.5



4
  Because this argument is without merit, we need not consider Basciano’s related claim
that the denied instructions also infected his conviction for substantive murder and
firearms use. We do note, however, that the substantive murder conviction was not based
on proof of conspiracy, see Pinkerton v. United States, 328 U.S. 640 (1945), but rather on
aiding and abetting that murder, see 18 U.S.C. § 2.
5
  In these circumstances, the cases relied on by Basciano are inapposite. See Rogers v.
United States, 422 U.S. 35, 36, 39 (1975) (identifying error in submitting written
response to jury note without first informing defense counsel or providing him with
opportunity to be heard); United States v. Glick, 463 F.2d 491, 492 (2d Cir. 1972)
(concluding that “private communications between the judge and jury violated the
unequivocal mandate of Rule 43, which requires the defendant to be present ‘at every
stage of the trial’” (quoting United States v. Schor, 418 F.2d 26, 31 (2d Cir. 1969)));
                                             11
       Basciano’s argument that all instructions must be read aloud to the jury relies on

cases in which a trial judge failed to read to the jury any of the elements of the charged

offenses. See Guam v. Marquez, 963 F.2d 1311, 1314–15 (9th Cir. 1992); United States

v. Noble, 155 F.2d 315, 316–18 (3d Cir. 1946). Basciano complains of no such omission

here; indeed, it is undisputed that the district court read aloud the entirety of the initial

jury charge.

       As for responses to jury notes, while this court previously expressed reservations

about providing such responses in writing, see United States v. Schor, 418 F.2d 26, 29–

30 (2d Cir. 1969), we have since observed that “it is commonplace for district court

judges to send written answers to jury questions, after proper consultation with counsel in

the presence of the defendant, rather than wasting 20 minutes of the time of nearly 20

people for a stately courtroom delivery,” United States v. Grant, 52 F.3d 448, 449–50 (2d

Cir. 1995) (footnote omitted); see also United States v. Ulloa, 882 F.2d 41, 45 (2d Cir.

1989) (noting that “trial judges must be permitted some latitude in determining how best

to handle jury inquiries”). As noted, the district court’s challenged actions followed such

consultation here at which no objections were raised.

       Even if there were any error here, it was not structural and, therefore, is subject to

harmless error review. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.”); see also United

States v. Moran-Toala, 726 F.3d 334, 343–44 (2d Cir. 2013) (applying harmless error


United States v. Schor, 418 F.2d at 29–30 (concluding that district court erred in failing
to afford defense counsel opportunity to be heard before responding to jury note).
                                             12
analysis to challenged supplemental instruction, observing that error did not “so

fundamentally undermine the fairness or the validity of the trial that [it] require[d]

voiding its result regardless of identifiable prejudice” (internal quotation marks omitted)).

Here, the jury note sought only a clarification of the district court’s earlier instruction that

a defendant may be held responsible for acts taken in furtherance of the conspiracy “as

long as he remained a member of the conspiracy.” G.A. 160; see also G.A. 158. The

parties do not dispute that the district court’s response—which informed the jury that a

defendant is presumed to be a member of a conspiracy until the last overt act unless he

proves by a preponderance of the evidence his withdrawal from the conspiracy or the

termination of the conspiracy—provided a correct statement of the law. See United

States v. Ulloa, 882 F.2d at 45 (concluding that defendant not prejudiced by court’s

colloquy with jury in response to questions because “judge’s responses did not misstate

the law to the detriment of” defendant). Basciano did not argue at trial that he withdrew

from the conspiracy and the record evidence made clear beyond a reasonable doubt that

Basciano was the leading member of the Pizzolo murder conspiracy from its inception

through achievement of its objective. See United States v. Carr, 424 F.3d 213, 226 (2d

Cir. 2005) (concluding that any error in supplemental jury instruction was harmless

because it was “clear beyond a reasonable doubt that the jury would have found the

defendant guilty absent the asserted error” (quoting Neder v. United States, 527 U.S. 1,

18 (1999))).

       Accordingly, Basciano’s challenge to the district court’s written response to a jury

note does not warrant a new trial.

                                              13
4.    Conclusion

      We have considered Basciano’s remaining arguments and conclude they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




                                         14
