06-1280-cr
USA v. Riggi (Mannarino)



 1                          UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2007
 6
 7    (Argued: May 29, 2008                   Decided: September 4, 2008)
 8
 9              Docket Nos. 06-1280-cr(L), 06-2683-cr(con),
10           06-2862-cr(con), 06-2878-cr(con), 06-2910-cr(con)
11
12    - - - - - - - - - - - - - - - - - - - -X
13
14    UNITED STATES OF AMERICA,
15
16                         Appellee,
17
18                - v.-
19
20    GIOVANNI RIGGI, MICHAEL SILVESTRI,
21    GIROLAMO PALERMO, also known as Jimmy
22    Palermo,
23
24                         Defendants,
25
26    ANTHONY MANNARINO, also known as
27    Anthony Marshmallow, GIUSEPPE
28    SCHIFILLITI, also known as Pino
29    Schifilliti, PHILIP ABRAMO, LOUIS
30    CONSALVO, also known as johndoe8, also
31    known as Louie Eggs, also known as
32    Frank Scarabino, STEFANO VITABILE, also
33    known as Steve Vitabile,
34
35                         Defendants-Appellants.
36
37    - - - - - - - - - - - - - - - - - - - -X
38

39          Before:        JACOBS, Chief Judge, CALABRESI and SACK,
40                         Circuit Judges.
1        Appeals from judgments of conviction following a jury

2    trial in the United States District Court for the Southern

3    District of New York (Mukasey, J.).    Because it was plain

4    error (in retrospect) to admit eight plea allocutions in

5    violation of Crawford v. Washington, 541 U.S. 36 (2004), we

6    vacate the convictions and remand for further proceedings.

 7                                 ROLAND G. RIOPELLE, Sercarz &
 8                                 Riopelle, LLP, New York, NY, for
 9                                 Defendant-Appellant Guiseppe
10                                 Schifilliti.
11
12                                 INGA L. PARSONS, Law Offices of
13                                 Inga L. Parsons, Marblehead, MA,
14                                 for Defendant-Appellant Philip
15                                 Abramo.
16
17                                 SANFORD TALKIN, Talkin,
18                                 Muccigrosso & Roberts, LLP, New
19                                 York, NY, for Defendant-
20                                 Appellant Stefano Vitabile.
21
22                                 JOHN M. HILLEBRECHT, Assistant
23                                 United States Attorney (Miriam
24                                 E. Rocah, Katherine Polk Failla,
25                                 Assistant United States
26                                 Attorneys, on the brief), for
27                                 Michael J. Garcia, United States
28                                 Attorney for the Southern
29                                 District of New York, New York,
30                                 NY, for Appellee.
31
32   DENNIS JACOBS, Chief Judge:

33       Stefano Vitabile, Philip Abramo, and Giuseppe

34   Schifilliti (collectively, “defendants”) appeal from

35   judgments of conviction, entered following a three-week jury


                                    2
1    trial in the United States District Court for the Southern

2    District of New York (Mukasey, J.), on charges arising out

3    of their involvement in the Decavalcante organized crime

4    family.   The charges include racketeering and racketeering

5    conspiracy, murder and conspiracy to commit murder,

6    conspiracy to commit extortion in the construction industry,

7    conspiracy to make and to collect extortionate extensions of

8    credit, and conspiracy to commit securities fraud.

9    Defendants challenge their convictions on several grounds,

10   of which we reach two:   (i) that the admission of eight plea

11   allocutions of non-testifying co-conspirators amounted to

12   plain error under the intervening authority of Crawford v.

13   Washington, 541 U.S. 36 (2004); and (ii) that the evidence

14   was insufficient to support the convictions on three counts.

15   We find merit in the Crawford claim, vacate the judgments

16   and remand the case for further proceedings.

17

18                             BACKGROUND

19       These prosecutions arose out of a lengthy investigation

20   into organized crime, culminating in the October 2000

21   arrests of more than twenty persons (including Vitabile,

22   Abramo, and Schifilliti), and the filing of multiple

23   indictments.   The case against the three defendants here

                                   3
1    went to trial on a nine-count superseding indictment.

2    Counts One and Two alleged racketeering and racketeering

3    conspiracy under 18 U.S.C. § 1962(c) and (d).     These two

4    counts encompassed, as predicate acts, twelve substantive

5    allegations, some of which were then also set forth as

6    separate offenses in Counts Three through Nine.     After a

7    three-week trial held in Spring 2003, the jury found

8    defendants guilty of the first two counts (including that

9    the government had proven ten of the predicate acts), and,

10   among them, five of the remaining substantive counts.

11

12       A.   Trial

13       We summarize the facts in the light most favorable to

14   the government, given the defendants’ convictions.     United

15   States v. Mapp, 170 F.3d 328, 331 (2d Cir. 1999).     For the

16   period relevant to the indictment, the Decavalcante

17   organized crime family, like many mob families, was led by a

18   “boss,” aided by an “underboss” and a “counselor” or

19   “consigliere.”   They supervised multiple crews of hoodlums,

20   each led by a captain and manned by soldiers (who have been

21   formally inducted as members of the family) and associates

22   (non-members).   The family was run by an “administration”

23   made up of top leadership and the various captains.

                                   4
1        Defendants are long-time members and leaders of the

2    Decavalcante family.   Vitabile served as consigliere for

3    approximately 35 years; Abramo had been a captain since the

4    late 1980s; Schifilliti had been a captain since 1991.      At

5    all relevant times, the three defendants were members of the

6    family’s administration.   Vitabile was also a member of the

7    “ruling panel,” a group formed when a boss is imprisoned or

8    otherwise incapacitated.

9        The government’s evidence at trial included testimony

10   from four cooperating witnesses, each of whom had known all

11   three defendants for decades and had run the various rackets

12   and served as enforcers side-by-side with them.   They were

13   (in descending order of rank in mob hierarchy):   (1) Vincent

14   Palermo (no relation to Girolamo Palermo, whose separate

15   appeal is also decided today), a long-time captain who was a

16   member of the family’s ruling panel and became an acting

17   boss at one point; (2) Anthony Rotondo, a captain; (3)

18   Anthony Capo, a soldier; and (4) Victor DiChiara, an

19   associate.   Of these cooperating witnesses, at least one--

20   and usually more than one--testified about defendants’

21   involvement in each of the charged crimes.

22       The government also presented testimony from expert

23   witnesses, law enforcement officers, and family members of

                                   5
1    some mob victims; surveillance photographs and video; tape-

2    recorded conversations; documentary evidence; and the guilty

3    plea allocutions of eight non-testifying co-conspirators .

4    In order to assess the impact of the allocutions upon the

5    convictions, and to assess sufficiency of evidence, it is

6    necessary to summarize in some detail the evidence

7    supporting each of the proven predicate acts and substantive

8    counts.     (The defendants named in the various charges are

9    specified in parentheses.)

10       1.    Conspiracy to murder and murder of Frederick Weiss

11   (Abramo).    Weiss, an associate of the Decavalcante Family,

12   was a defendant (along with some members of the Gambino

13   organized crime family) in a prosecution for illegal dumping

14   of garbage.     The Gambino family suspected Weiss of

15   cooperating with the government, and asked the Decavalcante

16   family to kill him.    Tr. 193-94.       Abramo attended a series

17   of meetings in which the murder was planned.         Tr. 200, 202-

18   03, 973-74, 976-80, 985, 992-93, 2105, 2115.         Abramo cased

19   the area around Weiss’s home (the proposed spot for the

20   murder), reported back to then-boss John Riggi about the

21   plan, and on the day of the murder, drove around the area

22   with underboss John D’Amato in case back-up or a diversion

23   would be needed.    Tr. 979-80.       Cooperating witness Palermo,

                                       6
1    who was assigned to shoot Weiss, testified that while he was

2    waiting for Weiss to appear, he saw Abramo and D’Amato

3    driving around the neighborhood.      Tr. 2120.   As Weiss walked

4    from his house to his car parked in front, he was gunned

5    down by Palermo and another family member.        Tr. 222, 2121.

6    When the shooters gave their report to Abramo and D’Amato,

7    Tr. 2122, Abramo or D’Amato replied, “We know.       We heard the

8    shots.”     Tr. 998.   Later that day, Abramo and D’Amato met at

9    a restaurant with Palermo and two other cooperating

10   witnesses to congratulate them.      Tr. 2123.

11          2.   Conspiracy to murder and murder of Joseph Garofano

12   (Abramo).     Garofano was one of the participants in the Weiss

13   hit.    His fear that he might be arrested prompted concern in

14   the Decavalcante family that he might cooperate with the

15   government, Tr. 514-15, 996, 1017-18, 1021, so the family

16   leadership decided to kill him too.      Again, Abramo

17   participated in planning meetings with other family members.

18   Tr. 1017-18, 1020-22, 2128-32.       Cooperating witness Rotondo

19   testified about two meetings he attended with Abramo and

20   D’Amato within a week of the Weiss murder.        Tr. 1019, 1032.

21   During those meetings, Abramo urged that Garofano be killed

22   (because “he saw everybody that was there at the [Weiss]

23   hit,” Tr. 1021), assigned a soldier in his own crew to carry

                                      7
1    out the murder, Tr. 1023, and helped to devise and implement

2    the plan by which the hit man would ambush his victim, Tr.

3    1032-36.     On the day of the murder, Rotondo reported to

4    Abramo and warned him to avoid being spotted by Garofano.

5    Tr. 1036.     Rotondo then drove Garofano to the site of the

6    hit, and stood guard while Garofano was shot to death.        Tr.

7    1039-40.

8           3.   Conspiracy to murder Annunziata and Vastola

9    (Abramo).     Daniel Annunziata and Gaetano “Corky” Vastola,

10   members of the Decavalcante family, were targeted for

11   execution because: Annunziata had refused to allow the Weiss

12   murder to take place at the construction site of his new

13   home, Tr. 964, 980-87, 1052-58; and Vastola, Annunziata’s

14   brother-in-law, backed him up and also threatened to “go to

15   war” with the Gambino family rather than kill Weiss at their

16   request, Tr. 209.     On one occasion, Abramo and D’Amato met

17   with Annunziata and Vastola to try to get them to come

18   around, and ordered Capo and Palermo to keep watch outside

19   and kill Annunziata and Vastola if anything went wrong.        Tr.

20   206.

21          Abramo and D’Amato subsequently ordered Capo and

22   Palermo to kill Annunziata and Vastola, Tr. 204, 980-81,

23   2111, but the intended victims got away, Tr. 2112.        Abramo

                                     8
1    attended several follow-up meetings, but the murders were

2    never carried out.     Tr. 1052-58.     Ultimately, Annunziata and

3    Vastola somehow made amends and were allowed back into the

4    Decavalcante family.     Tr. 1057-58.

5          4.   Conspiracy to murder and murder of Louis LaRasso

6    (Vitabile, Abramo, and Schifilliti).       LaRasso was a

7    Decavalcante captain who was deemed a threat to boss John

8    Riggi (who was then in jail) and acting boss John D’Amato.

9    Tr. 124, 322-23, 1066-68.      At a mid-1991 meeting that

10   included all three defendants, the family administration

11   voted to kill LaRasso.    Tr. 325-36, 1069-74, 2355, 2359.

12   The plan was for Schifilliti to lure LaRasso to meeting at

13   the home of one of Schifilliti’s soldiers.        Members of

14   Abramo’s crew would kill him there, dispose of his body, and

15   leave his car at the airport.        Tr. 326-27, 1074-76, 2359-61.

16         Mrs. LaRasso testified that her husband went missing on

17   November 11, 1991.     Tr. 2669-71.     LaRasso’s car was found at

18   the airport.    Tr. 2672-73.    In mid-November, Abramo advised

19   Rotondo and Palermo that LaRasso had been killed.          Tr. 1078-

20   79.   Rotondo testified that he learned from other mob

21   members that Abramo was responsible for LaRasso’s murder,

22   and that Schifilliti had been nauseated at the scene.          Tr.

23   1079-82.

                                      9
1        5.   Conspiracy to murder and murder of John D’Amato

2    (Vitabile).    Several family members, including cooperating

3    witnesses Capo, Rotondo and Palermo, wanted to get rid of

4    John D’Amato--his offenses were usurpation, Tr. 1101-02,

5    stealing from the family, Tr. 1096-97, 1101-02, 2155-56,

6    2177, and sex with men, Tr. 388-90, 1098-1100, 2157-58--but

7    they needed permission of someone in authority.      Tr. 390-91,

8    1100-01, 2159.     At a meeting in November 1991, Vitabile

9    authorized the murder and suggested how and where to dispose

10   of D’Amato’s body.     Tr. 1107-10, 2159-62.   Shortly

11   thereafter, Capo (accompanied by DiChiara) shot D’Amato to

12   death in a car.     Tr. 397-98, 1619-20.   D’Amato’s body was

13   never recovered.

14       6.   Conspiracy to murder Thomas Salvata (Vitabile).

15   Salvata, an associate on the crew of cooperating witness

16   Palermo, worked at Palermo’s dancing establishment

17   (“Wiggles”) and picked up loansharking money at a restaurant

18   in which Palermo had an interest.     Tr. 2308-09, 2151.     After

19   search warrants were executed at the restaurant--and one of

20   Palermo’s loansharking books was confiscated--Palermo grew

21   suspicious that Salvata was cooperating with the government.

22   Tr. 2150-52.     Palermo asked Vitabile to find “someone to dig

23   a hole for me so I could put Tommy [Salvata] in there.”       Tr.

                                     10
1    2153.    Vitabile put Palermo in touch with another

2    Decavalcante captain who was working on a construction

3    project.    Id.   The murder plans were postponed because of

4    the security arrangements at the construction project.

5    Palermo had second thoughts and called off the hit.      Tr.

6    2154.

7        7.     Conspiracy to murder Frank D’Amato (Vitabile and

8    Schifilliti).     Shortly after the murder of acting boss John

9    D’Amato, his brother Frank was released from prison.       Those

10   involved in the murder--including Vitabile, Schifilliti,

11   Capo, Palermo and Rotondo--thought it prudent to kill Frank

12   before he took revenge.     Tr. 410, 1128-29.   The Decavalcante

13   family’s administration--including Vitabile and Schifilliti-

14   -voted to authorize Capo (who was not present) to kill Frank

15   D’Amato.    Tr. 424-27, 1131-37, 2180-86.   Vitabile later told

16   Capo to kill Frank at the first opportunity.     Tr. 427.      The

17   murder never took place.

18       8.     Conspiracy to commit extortion in the construction

19   industry (Vitabile and Schifilliti).    The Decavalcante

20   family controlled the Laborers International Union of North

21   America, Local 394, and the Asbestos Union, Local 1030.        Tr.

22   262-63, 266, 271-76, 278-80, 1144, 1155, 1159, 1571, 2192,

23   2209.    The family’s control was used to extort kickbacks

                                     11
1    from contractors who wanted to use non-union labor, and

2    bought labor peace in exchange for cash payments and “no

3    show” jobs.    Tr. 267, 1156-58, 1573, 2201-04.   Contractors

4    who resisted the family were subject to violent attacks,

5    strikes and picket lines, Tr. 863-64, and were assigned

6    particularly uncooperative union workers, Tr. 1158.

7    Uncooperative union officials were subjected to threats and

8    violence.     Tr. 264-65, 284-89, 1574-79, 2198-99.

9        Capo testified to using a pipe to beat a union member

10   who was making trouble for one union official controlled by

11   the family.    Tr. 264-65.   Capo and DiChiara testified that

12   on a separate occasion, Schifilliti ordered them to bludgeon

13   a union official who was disobeying orders.    Tr. 284-289,

14   1574-79.    Palermo testified that he once delivered $70,000

15   to Schifilliti, who explained to him that the payment was

16   for letting a company work non-union.    Tr. 2202-05.

17       9.     Conspiracy to make and to collect extortionate

18   extensions of credit (Abramo and Schifilliti).    Abramo,

19   known as a “Shylock’s Shylock,” ran one of the most

20   successful loansharking operations in the Decavalcante

21   family.    Tr. 1145.   Rotondo testified as to details of the

22   operation, some of which he learned directly from Abramo,

23   including the names of Abramo crew members who worked the

                                     12
1    racket and the transaction in which Abramo loaned money to

2    Frank D’Amato, who was setting up his own subsidiary

3    loansharking business.   Tr. 1146-47.     Rotondo also testified

4    about conversations with Palermo, who described how he took

5    care of Abramo’s loansharking business when Abramo was

6    imprisoned in Florida.   Tr. 1146-47.     Palermo corroborated

7    this testimony, explaining how Abramo handed over the reins

8    of his loansharking business before he was surrendered to

9    law enforcement.   Tr. 2237, 2251-52, 2266-72.

10       Palermo also supplied testimony about Schifilliti’s

11   involvement in loansharking business.     Schifilliti had

12   boasted to Palermo in the early 1990s that he had started

13   loansharking and “like[d] it.”      Tr. 2282.    Schifilliti

14   solicited Palermo as a partner in the business and also as a

15   supplier of soldiers for collection purposes.        Tr. 2282,

16   2037.

17       10.   Conspiracy to commit securities fraud (Abramo).

18   Abramo ran Sovereign Equity Management Corporation, a boiler

19   room operation.    Tr. 1717-1718, 2238-41.      For the most part,

20   Sovereign brokers engaged in “cold calling . . . prospective

21   customers on the phone and try to sell them bogus stocks,

22   fake stocks.”   Tr. 348-49.   A portion of the proceeds was

23   kicked up to family leadership.     Tr. 351-52.     Abramo’s

                                    13
1    associate Vincent DiChiara testified that Abramo: controlled

2    most aspects of the company (personnel, deals, customer

3    complaints) while carefully hiding his involvement, Tr. 343,

4    345, 1717-21, 1729, 1733-35, 1746, 1760-61; kept the two

5    sets of books, Tr. 1720-21; and instructed DiChiara on

6    precautions for avoiding law enforcement detection, Tr.

7    1771-72.    DiChiara further testified that Abramo had

8    Sovereign carry out a fraudulent initial public offering of

9    common stock and warrants in a company called SC&T

10   International (“SCTI”), Tr. 1743-45; paid brokers illegally

11   high commissions (up to 35 percent) to motivate them to push

12   SCTI stock, Tr. 1968-70; and manipulated SCTI’s stock price

13   by fabricating information, failing to deliver a

14   prospectus, refusing to let customers sell the stock at any

15   price, parking the stock, conducting unauthorized trades,

16   and writing fake tickets for phony transactions, Tr. 1745-

17   60, 1788.

18

19       To prove the existence of the multiple conspiracies

20   described above, the government relied, inter alia, on the

21   guilty pleas of co-conspirators, in the form of signed

22   stipulations that stated the date of the guilty plea, the

23   charge to which each co-conspirator pled, and the basic

                                    14
1    relevant facts admitted in the allocution.   In summary, the

2    stipulations stated:

 3       (a) On June 28, 1993, John Riggi, Virgil Alessi and
 4           Bartolomeo Nichola pled guilty to conspiring to
 5           participate in the affairs of a racketeering
 6           enterprise by plotting to murder Vastola. Tr.
 7           2631-32.
 8
 9       (b) On May 22, 2001, Joseph Sclafani pled guilty to
10           conspiring to participate in a racketeering
11           enterprise by, inter alia: (i) conspiring to
12           murder Frank D’Amato, and (ii) extorting Barr
13           Industries, a construction contractor. Tr. 1436-
14           37.
15
16       (c) On January 18, 2002, James Gallo pled guilty to
17           conspiring to participate in a racketeering
18           enterprise by, inter alia: (i) conspiring to
19           murder Weiss, and (ii) conspiring to participate
20           in loansharking. Tr. 2684.
21
22       (d) On March 14, 2003, Charles Stango pled guilty to
23           conspiring to participate in a racketeering
24           enterprise by conspiring to commit construction
25           industry extortion. Tr. 1435.
26
27       (e) On April 21, 2003, Louis Consalvo pled guilty to
28           conspiring to commit securities fraud and
29           conspiring to murder LaRasso. Tr. 2011.
30
31       (f) On April 21, 2003, Gregory Rago pled guilty to
32           conspiring to murder LaRasso. Tr. 2683.

33       After each allocution was read, the trial court gave a

34   limiting instruction that the allocution could be considered

35   only to establish that a particular racketeering enterprise

36   or conspiracy existed, and that it could not be used to

37   prove that any defendant on trial was a participant; as to


                                  15
1   each defendant’s participation, the jury must look to other

2   evidence.    See Tr. 1437-38, 2012, 2632-33, 2685-86.   The

3   court repeated and elaborated on this instruction during its

4   final charge to the jury on the law (as set forth in the

5   margin1 ).

         1
           In the final charge to the jury, the court stated in
    connection with the plea allocutions:

         You have also heard that others not called as
         witnesses pleaded guilty and made statements about
         their participation in certain crimes charged in
         the indictment. You may consider these statements
         as evidence and like any other evidence in the
         case, give the statements such weight as you
         believe appropriate. Please understand though,
         that you may consider those statements only on the
         following issues: One, whether the racketeering
         enterprise charged in counts one and two existed;
         Two, whether any conspiracy or scheme to defraud
         referred to in the guilty plea you are considering
         existed; and, Three, what the role was of the
         person who pleaded guilty in that enterprise, that
         scheme or that conspiracy. The question of
         whether any defendant on trial was a member of the
         enterprise, the racketeering conspiracy, the
         scheme to defraud, or any of the other
         conspiracies alleged in the indictment, and
         whether he participated in them, is an issue for
         which you will have to rely on other evidence.
         There is [no] evidence in these statements naming
         any other defendant or coconspirator. If you find
         based in part on these statements that [the]
         enterprise or the scheme to defraud or any of the
         conspiracies charged in the indictment existed,
         you must decide as a separate question whether the
         defendant you are considering was a part of each
         alleged conspiracy, based entirely on the other
         evidence in the case. There is nothing in these
         statements that answers those questions one way or
         the other.

    Tr. 3342-43.
                                   16
1        B.   Verdicts.   Vitabile was convicted on Count One

2    (racketeering) and Count Two (racketeering conspiracy), by

3    virtue of the following predicate acts: (i) conspiracy to

4    murder and murder of Louis LaRasso; (ii) conspiracy to

5    murder and murder of John D’Amato; (iii) conspiracy to

6    murder Thomas Salvata; (iv) conspiracy to murder Frank

7    D’Amato; and (v) conspiracy to commit extortion in the

8    construction injury.   Vitabile was also convicted on Count

9    Four, conspiracy to murder Thomas Salvata, 18 U.S.C. §

10   1959(a)(5); Count Five, conspiracy to murder Frank D’Amato,

11   18 U.S.C. § 1959(a)(5); and Count Nine, conspiracy to commit

12   extortion in the construction industry, 18 U.S.C. §§ 1951

13   and 2.   Vitabile was acquitted on Count Three, conspiracy to

14   murder Frank Scarabino.

15       Abramo was convicted on Counts One and Two by virtue of

16   the following predicate acts: (i) conspiracy to murder and

17   murder of Frederick Weiss; (ii) conspiracy to murder and

18   murder of Joseph Garofano; (iii) conspiracy to murder Daniel

19   Annunziata and Corky Vastola; (iv) conspiracy to murder and

20   murder of Louis LaRasso; (v) conspiracy to make and to

21   collect extortionate extensions of credit; and (vi)

22   conspiracy to commit securities fraud.   Abramo was also




                                   17
1    convicted on Counts Seven and Eight, conspiracy to make and

2    to collect extortionate extensions of credit, 18 U.S.C. §§

3    892, 894.    He was acquitted on Count Six, which charged the

4    financing of extortionate extensions of credit.

5        Schifilliti was convicted on Counts One and Two by

6    virtue of the following predicate acts: (i) conspiracy to

7    murder and murder of Louis LaRasso; (ii) conspiracy to

8    murder Frank D’Amato; (iii) conspiracy to commit extortion

9    in the construction industry; and (iv) conspiracy to make

10   and to collect extortionate extensions of credit.

11   Schifilliti was also convicted on Count Five, conspiracy to

12   murder Frank D’Amato; Counts Seven and Eight, conspiracy to

13   make and to collect extortionate extensions of credit; and

14   Count Nine, conspiracy to commit extortion in the

15   construction industry.    Like Vitabile, Schifilliti was

16   acquitted on Count Three, conspiracy to murder Frank

17   Scarabino.    Like Abramo, Schifilliti was acquitted on Count

18   Six, financing extortionate extensions of credit.

19       The government thus failed to prove Counts Three and

20   Six, as well as the predicate acts of conspiracy to murder

21   Frank Scarabino and conspiracy to murder two unidentified

22   John Does.    For reasons discussed later, it is telling that

23   none of the acquitted counts and unproven predicate acts was

24   referred to in any of the eight plea allocutions.

                                    18
1        Following the verdict, defendants moved for judgment of

2    acquittal or a new trial, and later supplemented those

3    motions to raise new grounds for overturning the

4    convictions, including (among others) that it was error to

5    admit the eight plea allocutions based on the intervening

6    Supreme Court decision in Crawford v. Washington, 541 U.S.

7    36 (2004).   In March 2005, the district court ruled that the

8    admission of the allocutions was harmless error as to all

9    three defendants.   The defendants were sentenced principally

10   to terms of life imprisonment.     Judgments were entered

11   against Vitabile on July 12, 2006, against Abramo on June 9,

12   2006, and against Schifilliti on April 5, 2006.

13

14                             DISCUSSION

15                                 I.

16       Crawford holds that the Confrontation Clause bars

17   “admission of testimonial statements of a witness who did

18   not appear at trial unless he was unavailable to testify,

19   and the defendant had had a prior opportunity for cross-

20   examination.”   541 U.S. at 53-54.     It is thus constitutional

21   error to admit as substantive evidence a plea allocution by

22   a co-conspirator who does not testify at trial “unless the

23   co-conspirator is unavailable and there has been a prior


                                   19
1   opportunity for cross-examination.”     United States v.

2   McClain, 377 F.3d 219, 222 (2d Cir. 2004).     The government

3   concedes that it was error to admit at defendants’ trial the

4   eight plea allocutions.     Although defense counsel objected

5   to admission of the allocutions, they did not do so on

6   Confrontation Clause grounds, and so our review is for plain

7   error. 2   For the reasons set forth below, we conclude that

8   the admission of the allocutions was plain error, and we

9   vacate the convictions. 3



          2
           Abramo argues that his trial counsel’s single mention
    of cross-examination during a colloquy with the court about
    one of the eight pleas was sufficient to preserve the
    constitutional claim as to him. However, the remainder of
    the colloquy makes clear that Abramo’s counsel was arguing
    that the plea was not trustworthy, under our now-abrogated
    precedent that regularly approved the admission of an
    unavailable witness’s plea allocution to prove the existence
    and scope of a conspiracy so long as accompanied by
    particularized guarantees of trustworthiness. See Tr. 2006-
    08; see, e.g., United States v. Petrillo, 237 F.3d 119,
    122-23 (2d Cir. 2000), abrogated by Crawford, 541 U.S. at
    64. The objection failed to “put [the] trial court on
    notice that Confrontation Clause concerns [were]
    implicated.” United States v. Dukagjini, 326 F.3d 45, 60
    (2d Cir. 2003).
          3
           “When the source of plain error is a supervening
    decision, we have employed a modified plain error standard”
    that shifts the burden to the government to prove that the
    error did not affect substantial rights. United States v.
    Lombardozzi, 491 F.3d 61, 74 n.4 (2d Cir. 2007). We need
    not resolve whether this standard runs contrary to Johnson
    v. United States, 520 U.S. 461 (1997), and whether it
    applies to unpreserved Crawford errors, because defendants
    here prevail under ordinary plain error review. See United
    States v. Bruno, 383 F.3d 65, 79 n.8 (2d Cir. 2004).
                                    20
1        Plain error is (1) error (2) that is plain, (3) that

2    affects substantial rights, and (4) that seriously affects

3    the fairness, integrity, or public reputation of judicial

4    proceedings.    See Johnson v. United States, 520 U.S. 461,

5    467 (1997) (citing United States v. Olano, 507 U.S. 725, 732

6    (1993)).    The admission of the eight allocutions here was

7    “so egregious and obvious” an error (albeit in retrospect)

8    that it clearly satisfies the first two conditions.       United

9    States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (en banc)

10   (internal quotation marks omitted).    The fourth condition is

11   also satisfied: the error seriously affected the fairness

12   and integrity of the proceedings because, as discussed in

13   further detail below, the plea allocutions “almost certainly

14   contributed to the jury’s verdict.”    United States v.

15   Hardwick, 523 F.3d 94, 99 (2d Cir. 2008); see also United

16   States v. Bruno, 383 F.3d 65, 80 (2d Cir. 2004).

17       Our analysis comes down to the third prong of the plain

18   error test: whether the error affected substantial rights.

19   “An error affects a defendant’s substantial rights if it is

20   prejudicial and it affected the outcome of the district

21   court proceedings.”    Thomas, 274 F.3d at 668 (internal

22   quotation marks omitted).    Here, the plea allocutions

23   undoubtedly prejudiced the jury and influenced their

24   verdicts.

                                    21
1        A.     The Allocutions

2        The plea allocutions were introduced to prove the

3    existence of the following nine conspiracies:

4        (1) conspiracy to conduct the affairs of the

5    Decavalcante organized crime family through a pattern of

6    racketeering activity, charged against all three defendants

7    (guilty pleas of James Gallo, Joseph Sclafani and Charles

8    Stango);

9        (2) conspiracy to murder Louis LaRasso, charged against

10   all three defendants (guilty pleas of Louis Consalvo and

11   Gregory Rago);

12       (3) conspiracy to murder Gaetano Vastola, charged

13   against Abramo (guilty pleas of Virgil Alessi, Bartolomeo

14   Nichola and John Riggi);

15       (4) conspiracy to murder Weiss, charged against Abramo

16   (Gallo’s plea);

17       (5)    conspiracy to murder John D’Amato, charged against

18   Vitabile (Sclafani’s plea);

19       (6) conspiracy to murder Frank D’Amato, charged against

20   Vitabile and Schifilliti (Sclafani’s plea);

21       (7) conspiracy to commit construction industry

22   extortion, charged against Vitabile and Schifilliti

23   (Sclafani’s and Stango’s pleas);


                                   22
1        (8) conspiracy to participate in loansharking, charged

2    against Abramo and Schifilliti (Gallo’s plea); and

3        (9) conspiracy to commit securities fraud, charged

4    against Abramo (Consalvo’s plea).

5         The government conceded that it offered these pleas to

6    corroborate the cooperating witnesses’ testimony as to the

7    existence of the charged conspiracies.    Tr. 2873.

8

9        B.   Substantive Impact

10       The consequences of the erroneous admission of the plea

11   allocutions were manifold.

12       First, prejudice arose from the sheer number of plea

13   allocutions admitted to prove the multiple conspiracies in

14   this case.   See United States v. Becker, 502 F.3d 122, 131

15   (2d Cir. 2007) (“[T]he sheer number of plea allocutions

16   admitted to prove the conspiracy in this case is

17   significant, and highlights the importance of such testimony

18   to the government’s case.”).    Eight separate plea

19   allocutions, each confessing to participation in one or more

20   conspiracies, were offered to the jury.    Their repetitive

21   nature suggested that the conspiracy was so widespread that

22   it would be plausible for the jury to assume that defendants

23   were participants simply by their long and close association


                                    23
1    with the attestants.     See id.        While the number of pleas

2    alone would not suffice to establish a substantive impact on

3    the outcome of the trial, their admission in this case

4    cannot be described as merely cumulative.           See, e.g., United

5    States v. Reifler, 446 F.3d 65, 88 (2d Cir. 2006).           The

6    pleas described a wide and interlocking array of

7    conspiracies that in the aggregate bolstered the

8    government’s depiction of defendants as the ringleaders of a

9    vast criminal network.

10       Second, many of the conspiracies were overlapping such

11   that evidence of one tended to support the existence of

12   another.   For example, the conspiracy to murder Frederick

13   Weiss (evidenced by Gallo’s plea) led to the conspiracies to

14   murder family members Daniel Annunziata and Gaetano Vastola

15   because of their refusal to assist in murdering Weiss

16   (evidenced by the pleas of Allessi, Nichola, and Riggi).

17   Similarly, the conspiracy to murder John D’Amato led to the

18   conspiracy to murder his brother Frank D’Amato out of

19   concern that he would exact revenge (both conspiracies

20   evidenced by Sclafani’s binary plea).           Plea allocutions

21   confirming the existence of one of the linked conspiracies

22   naturally reinforced the evidence of the others, creating an

23   echo chamber of implied guilt, and amplifying the

24   prejudicial effect of the pleas.

                                        24
1          Third, the detailed content of the plea allocutions

2    corresponded to elements of the crimes charged against

3    defendants, potentially bolstering the government’s proof in

4    those areas.    See, e.g., Becker, 502 F.3d at 131 (finding

5    prejudice where “the content of the plea allocutions was

6    unusually far-reaching and detailed, and touched directly on

7    issues that were central to [the] defense”).     For example,

8    in connection with his guilty plea of conspiracy to commit

9    construction industry extortion, Stango admitted to “using

10   the influence of the Decavalcante organized crime family,

11   [and making] threats of labor unrest and threats of possible

12   violence to obtain payments and jobs from construction

13   companies.”    Tr. 1435.   Similarly, Sclafani’s allocution

14   admitted to participating in the extortion of a company

15   called Barr Industries “by use of threats.”     Tr. 1437.     To

16   establish extortion, the government was required to prove

17   the use of “actual or threatened force, violence, or fear.”

18   18 U.S.C. § 1951(b)(2); see United States v. Zhou, 428 F.3d

19   361, 371 (2d Cir. 2005).     In defending against these

20   extortion charges, Vitabile and Schifilliti attempted to

21   show that the unions’ dealings with contractors conformed to

22   common, legitimate business practices.     See, e.g., Tr. 729-

23   30.   The Stango and Sclafani pleas undermined this defense


                                     25
1    by suggesting that Decavalcante family members used threats

2    and violence routinely.

3         Other allocutions similarly contained detailed

4    information that invited the jury to make improper

5    assumptions regarding defendants’ roles in the crimes

6    charged. 4    See, e.g., Becker, 502 F.3d at 133.

7

8         C.      Limiting Instructions

9         The government argues that the district court’s

10   limiting instructions inoculated against the error.     While



          4
            Examples include: Consalvo and Rago both admitted to
     participating in the conspiracy to murder LaRasso, and their
     allocutions provided details regarding the motive, timing
     and method for carrying out the conspiracy’s object. The
     defense against this charge focused on inconsistencies in
     the cooperating witnesses’ testimony as to whether the
     agreement to murder LaRasso was aborted, and which of
     several plans would be used in carrying out the hit. Thus,
     it was significant that the plea allocutions confirmed an
     agreement to murder LaRasso and the use of a gun in the
     course of it. Cf. Reifler, 446 F.3d at 90 (admission of
     plea allocutions was harmless error where, inter alia, they
     did not “indicate the methods” used by defendants).
          Consalvo also admitted a conspiracy to commit
     securities fraud between January 1993 and March 1999, which
     was executed by making false statements in connection with a
     particular stock. The dates and fraud description in
     Consalvo’s allocution correspond precisely with those in the
     indictment charging Abramo with similar offenses as to the
     same stock. As Abramo’s defense centered on lack of
     knowledge of fraud, Consalvo’s plea would have significantly
     prejudiced this defense by suggesting that other members of
     Abramo’s crew had the necessary mental culpability for the
     offense. See, e.g., Hardwick, 523 F.3d at 99.
                                     26
1    we ordinarily “presume that juries follow limiting

2    instructions,” Id., 502 F.3d at 130, it is inappropriate to

3    do so “where the prejudicial spillover was so overwhelming,

4    they cannot be presumed to be effective,” United States v.

5    McDermott, 245 F.3d 133, 140 (2d Cir. 2001).     Under the

6    particular circumstances of the trial in this case, there

7    was an “overwhelming probability that the jury [was] unable

8    to follow the court’s instructions.”   United States v.

9    Jones, 16 F.3d 487, 493 (2d Cir. 1994).

10       The prejudicial spillover of the plea allocutions is

11   manifest in the alignment of the verdicts.     The jury

12   convicted on every substantive count supported by a plea

13   allocution; and where no plea allocution was offered in

14   support of a substantive count, the jury acquitted.       Thus,

15   Vitabile and Schifilliti were acquitted of the conspiracy to

16   murder Frank Scarabino, and Abramo and Schifilliti were

17   acquitted of financing extortionate extensions of credit.

18       The same general pattern held for the predicate acts,

19   with but two exceptions: no plea allocution was offered in

20   support of the conspiracy to murder Garofano and the

21   conspiracy to murder Salvata--yet, the jury found them

22   proven.   These exceptions, however, prove the rule, as they

23   involve predicate acts charged within the overarching

                                   27
1    racketeering conspiracy corroborated by six plea

2    allocutions.     In addition, both of these proven predicate

3    acts were offshoots of other conspiracies corroborated by

4    Gallo’s plea allocation.     The Garofano murder conspiracy was

5    an offshoot of the Weiss murder conspiracy, and the Salvata

6    murder conspiracy was an offshoot of the loansharking

7    conspiracy.     The correlation between the verdicts and the

8    plea allocutions strongly suggests that the jury was

9    improperly influenced by the inadmissible evidence.     Cf.

10   Reifler, 446 F.3d at 90 (noting that the “discerning nature

11   of the verdicts,” which acquitted some defendants and

12   convicted others, “strongly indicate that the plea

13   allocutions [which did not distinguish among the defendants]

14   played no role in the convictions”).

15

16       D.   Strength of Government’s Case

17       The government alternatively argues that because the

18   evidence of guilt was otherwise so overwhelming, the error

19   was harmless.     “The erroneous admission of evidence is not

20   harmless unless the appellate court can conclude with fair

21   assurance that the evidence did not substantially influence

22   the jury.”     United States v. Jean-Baptiste, 166 F.3d 102,

23   108 (2d Cir. 1999).     “In making this determination, we

                                     28
1    consider principally whether the government’s case against

2    the defendant[s] was strong; whether the evidence in

3    question bears on an issue that is plainly critical to the

4    jury’s decision . . . ; whether the evidence was emphasized

5    in the government’s presentation of its case and in its

6    arguments to the jury; and whether the case was close.”        Id.

7    at 108-09 (internal quotation marks and citations omitted).

8        Most of these factors favor defendants.     The

9    government’s case consisted primarily of cooperating witness

10   testimony, which, even viewed in the light most favorable to

11   the government, contained inconsistencies and

12   contradictions.   The government anticipated the jury’s

13   reluctance to rely solely on such testimony, promising in

14   its opening statement that “everything these witnesses tell

15   you will be corroborated by other evidence.”    Tr. 24.   As

16   the government concedes, this corroboration included the

17   eight allocutions which “were offered as proof of the . . .

18   nine conspiracies” alleged in the indictment.    Appellee’s

19   Br. 72.

20       Although the government also offered physical evidence,

21   including photographs and video and audio tapes, as

22   corroboration, the government betrayed anxiety about the

23   persuasiveness of some of this evidence.   Thus, the

                                   29
1    government’s opening “stress[ed]” to the jury that “[t]here

2    is no smoking gun on those [audio] tapes as to these three

3    defendants” because the cooperating witness who wore the

4    wire was “a low-level associate” who “simply was not in a

5    position to record these high-ranking members of the

6    family.”   Tr. 41.   In this context, the jury could be

7    expected to give even greater weight to the plea

8    allocutions.

9        This prejudicial impact was reinforced by the

10   government’s repeated references to the plea allocutions in

11   summation, attributing to them undue probative value and

12   significance.   See Wray v. Johnson, 202 F.3d 515, 526 (2d

13   Cir. 2000) (“[W]here the prosecution has emphasized the

14   wrongly admitted evidence, it may well have been important

15   in the minds of the jurors.”).      In its main and rebuttal

16   summations combined, the government referred to the

17   allocutions eight times.

18       First, in providing an overview of the evidence, the

19   government reminded the jury that it “heard numerous

20   stipulations about guilty pleas that members and associates

21   of the Decavalcante family have entered in federal court,”

22   and urged the jury to “consider these guilty pleas as

23   evidence that certain of the conspiracies charged in this



                                    30
1    indictment existed.”   Tr. 2873.   The government then recited

2    details from four of those guilty pleas.    Id.

3        Second, after reviewing the testimony of three

4    cooperating witnesses regarding the conspiracy to murder

5    Annunziata and Vastola, the government stated that this

6    testimony is corroborated by three plea allocutions:

 7             [T]he testimony of all the cooperators
 8             regarding the existence of the conspiracy
 9             to kill Corky Vastola was corroborated by
10             the guilty plea stipulations that were
11             read to you. As you heard, the boss of
12             the family, John Riggi, Virgil Alessi and
13             Barry Nichola all pleaded guilty to their
14             roles in that conspiracy to murder Corky
15             Vastola.
16
17   Tr. 2899 (emphasis added).   In short, the government was

18   asking the jury to rely on the plea allocutions to add

19   weight to the cooperating witnesses’ testimony about

20   Abramo’s participation in the Vastola murder conspiracy.

21       Third, the government reviewed the evidence against all

22   three defendants concerning the murder of Louis LaRasso,

23   including testimony about the participation of Louis

24   Consalvo and Gregory Rago, who were members of Abramo’s

25   crew.   The government urged the jury to conclude “[t]his

26   conspiracy existed” based in part on two plea allocutions:

27   “One way you know that this conspiracy to kill Louis LaRasso

28   existed was that, as you heard, Consalvo and Rago pleaded



                                   31
1    guilty earlier . . . this year to their roles in this

2    indicted conspiracy.”     Tr. 2901.     Implicit in this argument

3    was that Consalvo’s and Rago’s plea allocutions corroborated

4    the cooperating witnesses’ testimony about participation in

5    that conspiracy by defendants.

6        Fourth, in arguing that “Philip Abramo and his

7    coconspirators engaged in manipulation of the price of SCTI

8    stock and otherwise engaged in securities fraud at

9    Sovereign,” the government cited the testimony of

10   cooperating witness DiChiara.        Tr. 2930.   The government

11   then emphasized that DiChiara’s testimony was corroborated

12   by a plea allocution:

13            [O]ne of the ways you know that DiChiara
14            did not make up his testimony about the
15            conspiracy to manipulate the price of
16            SCTI’s stock at Sovereign, is that
17            Abramo’s own brother-in-law, Louis
18            Consalvo, pleaded guilty to committing
19            securities fraud by making false
20            statements about SCTI’s stock. That is
21            proof of the conspiracy.
22
23   Id. (emphasis added).     The gist of this argument is that

24   DiChiara is telling the truth about the securities fraud

25   charge because Consalvo pled guilty to the same charge.

26   This reinforced DiChiara’s extensive testimony on the

27   subject against Abramo.

28       Fifth, after defense counsel argued that the evidence

29   proved no more than that the cooperating witnesses

                                     32
1    themselves were murderers (and not that defendants joined

2    any murder conspiracy), the government in rebuttal again

3    relied on plea allocutions.   The government reminded the

4    jury that it “heard [guilty] pleas to murder conspiracies

5    from people from Phil Abramo’s own crew, from Joey Sclafani,

6    from Jimmy Gallo,” and argued that those pleas established

7    that the cooperating witnesses “were [not] the only violent

8    guys in the Decavalcante family.”     Tr. 3205.

9        Sixth, to counter defense arguments that talk about

10   killing certain victims was just “joking” or “rumors,” the

11   government pointed to plea agreements that admitted

12   participation in murder conspiracies.     Specifically, in

13   rebutting the defense claim that Sclafani was just joking

14   about killing Frank D’Amato, the government exclaimed,

15   “Joking?   He pled guilty to it.    Government Exhibit 58, you

16   heard the stipulation, he pled guilty to it.”     Tr. 3206.

17   The government continued in this vein:

18              The broader point is this, Victor
19              DiChiara is not telling you about rumors.
20              He is not repeating some kind of game of
21              telephone about conversations that people
22              had. He’s telling you about
23              conversations he had with people who
24              conspired with him to murder Frank
25              D’Amato. One of the murder conspiracies
26              to which people pled guilty, including
27              the cooperators. And the idea that
28              Vitabile got charged with this because of
29              a misunderstood joke that got blown out
30              of proportion is ridiculous. . . . [Y]ou

                                   33
1             then heard that Sclafani, among other
2             people, pled guilty to conspiring to kill
3             the guy.
4
5    Tr. 3207 (emphasis added).     The government was plainly

6    asking the jury to infer that Sclafani’s plea proves that

7    DiChiara is telling the truth about the murder conspiracies

8    and defendants’ participation in them.

9        Seventh, as previously mentioned, the government

10   anticipated the jury’s reluctance to rely on the audio tape

11   recordings because they did not provide a “smoking gun” as

12   to these defendants.     See, e.g., Tr. 3240 (“Now, there’s no

13   tape of these guys ordering murders.”).     In rebutting

14   defense arguments that the audio tapes failed to connect

15   defendants to extortion in the construction industry, the

16   government reprised testimony of cooperating witnesses on

17   that score, in particular Palermo’s testimony that he

18   regularly delivered to Schifilliti cash payments from cement

19   companies.   Tr. 3238.    The government then reminded the jury

20   that the testimony and tapes were corroborated by Stango’s

21   plea allocution:

22            The evidence of that is clear, but I
23            really bring it up because I want to
24            discuss something real quickly. Which I
25            don’t think we mentioned earlier on this
26            conspiracy, conspiracy to extort
27            companies using unions etc., one of the
28            reasons you know that conspiracy exists
29            is because . . . Charlie Stango you may
30            remember you heard pled guilty to a

                                     34
1             conspiracy, so you know the conspiracy
2             existed.
3
4    Tr. 3239 (emphasis added).   The jury plausibly could

5    conclude from this argument that they were entitled to rely

6    on Stango’s plea to corroborate Palermo’s testimony about

7    construction industry extortion, and in particular

8    Schifilliti’s role in the scheme.

9        Finally, the government’s last words to the jury were

10   (again) to consider the plea allocutions as evidence of the

11   crimes charged against defendants, and not merely of

12   evidence of the existence of the conspiracies.    The

13   government asked the jury to consider all of the proof of

14   “the murder of those four men and . . . the other crimes as

15   well,” including:

16            the corroboration from the tapes, the
17            conversation of these defendants on tape
18            with Vinnie Palermo, . . . photographs
19            and videotapes[] in meetings with high-
20            ranking Gambino family members and
21            others, . . . that numerous people have
22            pled guilty to conspiracy to murder and
23            extort as charged here, . . . [and] the
24            consistent testimony of the corroborating
25            witnesses . . . .

26   Tr. 3251-52 (emphasis added).

27       The plea allocutions were woven throughout the

28   summation, and went beyond isolated, casual or merely

29   cumulative mention.   Cf. United States v. Lombardozzi, 491

30   F.3d 61, 77 (2d Cir. 2007) (single mention, in fifty-page

                                     35
1    summation, of erroneously admitted allocution was harmless);

2    Reifler, 446 F.3d at 88 (one paragraph discussing allocution

3    in 110-page summation was harmless).   Nor did the government

4    attempt to mitigate any prejudice or reinforce the limited

5    purpose of the evidence by reminding the jury of the court’s

6    instructions.   Rather, the import that the government

7    repeatedly assigned to the plea allocutions effectively

8    eroded the court’s limiting instruction and exacerbated the

9    prejudicial effect.   See Becker, 502 F.3d at 132.    Given the

10   number and content of the plea allocutions, and the

11   corroborative value and repeated emphasis placed on them,

12   the constitutional error was not harmless.

13       We conclude that all four conditions for plain error

14   are satisfied here, and we exercise our discretion to notice

15   the error and vacate the judgments of conviction.

16

17                                II.

18       Schifilliti argues that the evidence was insufficient

19   to convict him of the LaRasso murder and the loansharking

20   conspiracy; and Abramo argues that the evidence was

21   insufficient to convict him of the loansharking conspiracy

22   and the securities fraud conspiracy.




                                   36
1        Defendants undertake a heavy burden in seeking to

2    reverse their convictions on grounds that the evidence was

3    insufficient.   See United States v. Dhinsa, 243 F.3d 635,

4    648 (2d Cir. 2001).   A conviction will be affirmed if,

5    viewing all the evidence in the light most favorable to the

6    prosecution, “any rational trier of fact could have found

7    the essential elements of the crime beyond a reasonable

8    doubt.”   Jackson v. Virginia, 443 U.S. 307, 319 (1979).      The

9    sufficiency test is applied “to the totality of the

10   government’s case and not to each element, as each fact may

11   gain color from others.”   United States v. Guadagna, 183

12   F.3d 122, 130 (2d Cir. 1999).        All issues of credibility,

13   including the credibility of a cooperating witness, must be

14   resolved in favor of the jury’s verdict.       See United States

15   v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002).       “In situations

16   where some government evidence was erroneously admitted, we

17   must make our determination concerning sufficiency taking

18   into consideration even the improperly admitted evidence.”

19   United States v. Cruz, 363 F.3d 187, 197 (2d Cir. 2004)

20   (citing Lockhart v. Nelson, 488 U.S. 33, 39-40 (1988)).

21        Although we are vacating the convictions on Crawford

22   grounds, we must reach the sufficiency challenges because if

23   the evidence was insufficient, double jeopardy would bar


                                     37
1    retrial.    See United States v. Marcus, --- F.3d ---, ---

2    n.6, No. 07-4005-cr, 2008 WL 3474434, at *7 n.6 (2d Cir.

3    Aug. 14, 2008) ; see also United States v. Bruno, 383 F.3d

4    65, 90 n.20 (2d Cir. 2004 ) (observing that where evidence is

5    insufficient excluding the improperly admitted evidence, but

6    is sufficient including the improperly admitted evidence,

7    the remedy is retrial rather than acquittal).    We conclude

8    that the totality of the evidence that was presented at

9    trial would be legally sufficient to satisfy the elements of

10   the convictions if all of that evidence had been properly

11   admitted.

12

13       A.      LaRasso Murder

14       Schifilliti was convicted of both the conspiracy to

15   murder and the actual murder of Louis LaRasso.    Schifilliti

16   argues that the evidence was insufficient to convict him of

17   the actual murder because LaRasso’s body was never found and

18   the only evidence that Schifilliti was present at the murder

19   scene is highly attenuated.

20       First, there was evidence that LaRasso was killed and

21   did not just go underground: cooperating witnesses testified

22   about a Decavalcante administration meeting at which

23   LaRasso’s death was ordered by all three defendants and the


                                    38
1    other members of the ruling panel, Tr. 1069-74; Capo

2    testified that he discussed the plans and logistics of the

3    hit with Schifilliti, Tr. 327-28; Rotondo testified that

4    other co-conspirators reported that Schifilliti was present

5    (and was nauseated) at the murder scene, Tr. 1079-82;

6    LaRasso’s family said he disappeared on November 11, 1991,

7    Tr. 2669-71; cooperating witnesses testified that at around

8    the same time they were told by Abramo and others that

9    Abramo and Schifilliti had “taken care” of LaRasso, Tr. 338;

10   and LaRasso’s abandoned car was found at an airport--as

11   envisioned in the murder plan, Tr. 2672-73.   It was entirely

12   reasonable for the jury to conclude that LaRasso was

13   murdered.

14         Schifilliti was placed at the scene of the murder by

15   Rotondo’s testimony as to what another co-conspirator had

16   witnessed--attenuated evidence, as Schifilliti characterizes

17   it.   But, in any event, it was unnecessary to prove

18   Schifilliti’s presence at the murder scene in order to

19   convict him of the murder.   The evidence established that

20   Schifilliti was one of the administration members who

21   “ordered” the hit; that order was a predicate for the

22   murder.   Commanding or procuring a criminal act is

23   sufficient to impose criminal liability as a principal under


                                   39
1    both 18 U.S.C. § 2 (whoever “aids, abets, counsels,

2    commands, induces or procures [the commission of an offense]

3    is punishable as a principal”), and under N.Y. Penal Law

4    § 20.00 (an aider and abettor is criminally liable as a

5    principal whenever he “solicits, requests, commands,

6    importunes, or intentionally aids such person to engage in”

7    criminal conduct with the requisite mens rea).   The totality

8    of evidence is sufficient to support a jury finding that

9    Schifilliti commanded the murder, and that LaRasso was

10   murdered pursuant to that command.

11

12       B.   Loansharking Conspiracy

13       Abramo and Schifilliti argue that the evidence was

14   insufficient to convict them of conspiring to make and

15   collect extortionate extensions of credit.   In particular,

16   they contend that there was no evidence of any particular

17   extortionate loan, or of extortionate means used to collect

18   such a loan, or of a conspiracy between these two defendants

19   to commit the offense.   The existence of the loansharking

20   conspiracy rested in large part on Gallo’s improperly

21   admitted plea allocution, and on co-conspirators’ statements

22   reported by the cooperating witnesses, some of which

23   defendants argue were also inadmissible.   But for the


                                   40
1    purpose of assessing the legal sufficiency of the evidence

2    to support a criminal conviction, we must weigh that

3    evidence as though it was properly admitted.         See Cruz, 363

4    F.3d at 197.    (Our ruling on sufficiency therefore does not

5    support any inference as to admissibility.)

6        Cooperating witnesses admitted to personal

7    participation in “loansharking,” and testified extensively

8    about the Decavalcante family's involvement in

9    “loansharking” and “shylocking.”        See, e.g., Tr. 156-57,

10   1275, 1590, 1932.    It was explained that “shylocking is the

11   same thing as loan sharking.”        Tr. 2565.   Cooperating

12   witness Palermo defined loansharking as lending money at

13   high interest rates, and using violence or the threat of

14   violence to ensure repayment.        Tr. 1976-77.   Asked what

15   happens “if a loan shark customer fails to pay back the

16   money he borrowed,” Palermo explained, “you extend it for a

17   while and then if nothing happens, he winds up with a

18   beating.”    Tr. 1977.   Palermo described a particular debtor

19   who was “having difficulty keeping up with his payments,”

20   and was consequently “afraid for his life” and “thought the

21   wise guys to whom he owed the money were going to hurt or

22   kill him.”   Id.    Similarly, Rotondo defined loansharking as

23   “len[ding] money to others at usurious rates . . . with the


                                     41
1    understanding that something would happen to them if they

2    didn’t pay it back.”   Tr. 930.    Capo testified that the

3    means of collecting such loans were “[t]hreats of

4    intimidation, reputation, I would try to know my customers

5    to make sure they . . . understood my position in organized

6    crime or association with it.”     Tr. 158.   See 18 U.S.C. §

7    891(7) (defining “loansharking” to include an extension of

8    credit where “the debtor reasonably believed that . . . the

9    creditor had a reputation for the use of extortionate means

10   to collect . . . or to punish the nonrepayment thereof”).

11       Specifically as to Abramo, cooperating witnesses

12   testified that he was the “Shylock’s Shylock,” Tr. 1145, and

13   offered details about Abramo's “loan shark book” and “loan

14   shark pickups,” Tr. 1146, 1147.    They described Abramo's

15   partners in the loanshark business, the crew members who

16   served as enforcers, his arrangements for delivery of

17   loanshark payments, and his measures for dealing with

18   problem debtors.   Tr. 1145-47, 2237, 2251-52.     As to

19   Schifilliti, cooperating witness Palermo testified that the

20   defendant discussed details about his loansharking business

21   and on one occasion asked Palermo to lend two crew members

22   to make a collection on a loan.    Tr. 2282, 2037.    Palermo

23   further testified about a conversation with one of those


                                   42
1    crew members who explained that, in order to collect money

2    from the debtor, he had to “strong-arm[] the guy, [get] very

3    nasty with the guy.”   Tr. 2222-23.

4        The evidence thus established that these defendants

5    engaged in loansharking and conspired with several other

6    co-conspirators to run their loansharking operations.     It

7    was unnecessary to link Abramo’s and Schifilliti’s

8    operations in order to convict them both of the loansharking

9    offense.   The combination of the admissible and inadmissible

10   evidence was sufficient to support a conviction.

11

12       C.     Conspiracy to Commit Securities Fraud

13       Abramo argues that the securities fraud conviction

14   cannot stand because it was based almost entirely on the

15   uncorroborated testimony of cooperating witness DiChiara.

16   However, “a conviction may be supported only by the

17   uncorroborated testimony of a single accomplice . . . if

18   that testimony is not incredible on its face and is capable

19   of establishing guilt beyond a reasonable doubt.     Any lack

20   of corroboration goes merely to the weight of the evidence,

21   not to its sufficiency.”   United States v. Parker, 903 F.2d

22   91, 97 (2d Cir. 1990) (internal citation omitted)).

23   DiChiara testified, based on daily face-to-face interaction


                                   43
1    with Abramo and with other co-conspirators in the stock

2    fraud, that: Sovereign was not a legitimate brokerage;

3    Abramo controlled Sovereign and was actively involved in its

4    fraudulent activities and in measures to avoid law

5    enforcement detection; and the stock offering for the

6    company known as SCTI was a scam designed and implemented by

7    Abramo.    The jury was entitled to believe DiChiara.

8        In any event, other cooperating witness testimony

9    corroborated DiChiara’s description of Abramo’s securities

10   fraud schemes.   Capo, the captain to whom DiChiara reported,

11   testified that Abramo told him directly that Sovereign was

12   “his,” but that he kept his office separate for legal

13   reasons.   Tr. 345.   Capo also testified that DiChiara had

14   “put it on record” with Capo that DiChiara was working with

15   Abramo at Sovereign, which Capo reported up the Decavalcante

16   family chain of command.    Tr. 351.   Capo recalled DiChiara’s

17   descriptions of his activities at Sovereign, including

18   “sell[ing] bogus stocks, fake stocks.”     Tr. 348.

19       Palermo testified about conversations with one of

20   Abramo’s partners in the SCTI fraud who explained how money

21   realized from the stock fraud had to be hidden.       Tr. 2248.

22   Abramo confirmed to Palermo that DiChiara was working for

23   him at Sovereign, and bragged to Palermo about the success

24   of Sovereign’s “pump and dump” schemes.     Tr. 2238-43.    Other
                                    44
1    Abramo crew members, including Louis Consalvo, told Palermo

2    about their roles in enforcing Abramo’s control over the

3    brokers at Sovereign, including in one case hitting an

4    employee over the head with a telephone.   Tr. 2243.   Rotondo

5    described Abramo as “the original pump and dump guy on Wall

6    Street.”   Tr. 1148.

7        Abramo argues in the alternative that the government

8    failed to adduce sufficient evidence of a nexus with

9    interstate commerce, the jurisdictional element of the

10   offense.   As this Court has previously observed, it is easy

11   for prosecutors to overlook this simple but essential

12   element of a federal offense:

13              [F]ederal prosecutors must devote the
14              minimal effort necessary to establish
15              federal jurisdiction over the acts of the
16              accused. There is nothing more crucial,
17              yet so strikingly obvious, as the need to
18              prove the jurisdictional element of a
19              crime. Sadly, we are forced to continue
20              reversing convictions, as long as
21              prosecutors remain lax in the simpler
22              aspects of their jobs.

23   United States v. Leslie, 103 F.3d 1093, 1103 (2d Cir. 1997).

24       Abramo characterizes the evidence relating to

25   Sovereign’s activities as having been cabined within its

26   Wall Street offices, and points out (for example) that no

27   evidence was adduced of any telephone calls made or mail

28   sent out-of-state from that office.   Abramo accuses the

                                     45
1    government of relying, for its interstate nexus, solely on

2    the supposition that of the 100 to 150 Sovereign brokers,

3    one or another must surely have called one or more customers

4    outside New York State.

5        The government’s evidence here is thin but sufficient.

6    It was able to show an interstate nexus from the following

7    evidence in the trial record:        (a) Sovereign used, in

8    connection with the SCTI scam, foreign nominee accounts held

9    in offshore companies controlled by Abramo and his co-

10   conspirators; (b) an Abramo partner who played a major role

11   in the SCTI scheme was stationed in Sovereign’s office in

12   Boca Raton, Florida; (c) trading information about SCTI was

13   accessible electronically from other states (and, in fact, a

14   defense expert testified about accessing the information

15   from New Jersey); and (d) the SCTI scheme was national in

16   scope, making it reasonable to infer that its implementation

17   necessitated the use of interstate or international mail and

18   wire facilities.

19       Because trial error otherwise requires vacatur of the

20   convictions, we express no opinion as to whether the

21   evidence of the LaRasso murder, loansharking and securities

22   fraud charges would be sufficient without the improperly

23   admitted evidence.   Cf., United States v. Hardwick, 523 F.3d


                                     46
1    94, 102 & n.7 (2d Cir. 2008) .        In assessing the sufficiency

2    of evidence, we have not used the word “ample.”         Nor do we

3    reach defendants’ remaining arguments challenging (i) the

4    admission of co-conspirators’ statements; (ii) the

5    government’s failure to disclose certain Brady materials;

6    and (iii) the life sentence of one of the defendants.

7

8                             CONCLUSION

9        For the foregoing reasons, the judgments of the

10   district court are vacated and remanded for further

11   proceedings consistent with this opinion.




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