United States v. Antico

692 F.3d 79, 2012 WL 3289824, 2012 U.S. App. LEXIS 17005
CourtCourt of Appeals for the Second Circuit
DecidedAugust 14, 2012
DocketDocket 10-5026-cr
StatusPublished
Cited by28 cases

This text of 692 F.3d 79 (United States v. Antico) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Antico, 692 F.3d 79, 2012 WL 3289824, 2012 U.S. App. LEXIS 17005 (2d Cir. 2012).

Opinions

Judge POOLER concurs in part and dissents in part by separate opinion.

LOHIER, Circuit Judge:

Anthony Antico appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York (Amon, C. J.), at which he was found guilty of one count of participating in a racketeering enterprise, in violation of 18 U.S.C. § 1962(c), and one count of illegal gambling, in violation of 18 U.S.C. § 1955. On appeal, Antico challenges the District Court’s decision to empanel an anonymous jury at trial, the sufficiency of the evidence underlying the racketeering conviction, and his sentence of 108 months’ imprisonment on that count. We affirm.

BACKGROUND

1. Facts

Antico argues that there was insufficient evidence that he agreed in 2008 to extort money from or rob Mario Gulinello, who had won $1.6 million on a “Pick Six” horse racing bet. Antico’s participation in the conspiracy to rob Gulinello constituted one of the relevant predicate acts in the racketeering charge of which Antico was convicted. Because this is an appeal from a judgment of conviction entered after a jury trial, the following facts are drawn from the trial evidence and described in the light most favorable to the Government. United States v. Bahel, 662 F.3d 610, 617 (2d Cir.2011). We limit our recitation of the facts to those relevant to Antico’s sufficiency challenge.

Gulinello, the target of Antico’s robbery conspiracy, became a millionaire in 2004. By 2008, one of Gulinello’s acquaintances, Ralph Lento, had introduced him to Jo[82]*82seph Barrafato, Jr., a ranking member of the Genovese crime family. In June 2008, Lento and Barrafato — a self-described “made guy” involved in organized crime' — ■ met Gulinello at an off-track betting parlor (“OTB”) in the Bay Ridge section of Brooklyn. Barrafato asked Gulinello to join them for coffee at a coffee shop a short drive away. With Gulinello in the back seat of their car, Lento and Barrafato instead drove past the coffee shop to the Coney Island section of Brooklyn. After reaching a particular Coney Island street, they slowed down and another car pulled up beside them. At that point, Barrafato called out to the driver in the other car, “Hey, Tico, say hello to my friend Mario.” Gulinello’s encounter with Antico, whose various aliases include “Tico” and “Big Nose,” lasted a few seconds. At trial Gulinello testified that Barrafato had previously described Antico as a “good guy” recently released from jail. After the encounter, Gulinello stopped frequenting the OTB parlor and returning Barrafato’s telephone calls.

At or around the same time in 2008, Barrafato’s telephone conversations were intercepted by government agents via a court-authorized wiretap. In excerpts of several calls from late June 2008 through July 2008 that were played for the jury, Barrafato and Antico revealed their increasing financial difficulties, their familiarity with Gulinello’s wealth, and their eagerness to rob Gulinello with the help of accomplices.

On June 28, 2008, for example, in a telephone conversation recorded by the Government, Barrafato and Lento discussed their financial worries, and Barrafato told Lento that “Big Nose” had assured him that they would “have ... money soon again.” On July 9, 2008, Antico urged Barrafato to proceed quickly with a robbery that they had previously discussed, and Barrafato specifically referred to a “house robfbery]”:

ANTICO: ... You gotta start movin’ around, my friend....
BARRAFATO: I’m tryin’ to put a few things together, you know? ...
[W]hat are you, in OTB?
ANTICO: Nah, I’m home....
Get that ... guy[ ] to hang out with us!
BARRAFATO: [Wjhich guy ... the one I told you about, with that thing?
BARRAFATO: ... I gotta go a different route with him.... Listen to me, it’s gotta be done the way I told you....
ANTICO: Yeah, right.
BARRAFATO: Yeah. It’s the only way!
Yeah, because these guys ..., they would look to house rob him....
Yeah, yeah. I told them, “You, you don’t go near there,” I told them.
ANTICO: That’s it.
BARRAFATO: ... I said, “Back away from it,” I told them. “If there’s anythin’, I’m cornin’ to you,” I told them.

Appellant’s Appendix (“App.”) 59-60.

Two days later, on July 11, 2008, Barrafato and Antico spoke urgently again about that “thing over there”:

BARRAFATO: We’re gonna come put ... Yeah, I gotta ... We’re puttin’ somethin’ together with that ... thing over there.
ANTICO: Oh! Alright.
[83]*83BARRAFATO: Yeah. It’s gonna be ... We gotta do it. I, I can’t wait no more.
ANTICO: I know. Can’t ...
BARRAFATO: No.
ANTICO: ... wait for it.
BARRAFATO: No, I can’t wait. No, I need, just I need the right ingredients to make the sauce, you know?
ANTICO: Right.
BARRAFATO: Yeah. That’s the whole thing, it’s the right ingredients. I’m hurtin’ myself right now. You know what I’m sayin’? Yeah, exactly.
ANTICO: Alright.

App. 38-39.

On the evening of July 12, 2008, Barrafato discussed the proposed robbery in a series of telephone conversations with Antico, Lento, and Frank Martino, another associate of the Genovese crime family. During the first call, at 8:09 p.m., Barrafato spoke with Martino about the possibility of recruiting “Paulie” for the robbery of a “Pick 6” winner. Barrafato described the Pick 6 winner as a “millionaire” with whom “Paulie” was acquainted:

BARRAFATO: [Y]ou know a kid Paulie with a skin head? He’s got a bald head?
MARTINO: Paulie? Yeah.
BARRAFATO: OK. Uh ... there’s somethin’ uh ... We gotta get ... I, when, when I see you, I’ll talk to you.
MARTINO: OK.
BARRAFATO: Yeah. We ... And uh, this, this thing here could go down ... ’Cause I rather talk to you in person, you know?
[H]e could help us with somethin’ where we could uh ...
MARTINO: Oh, yeah?
BARRAFATO: Yeah, yeah. Well ... And he stays with a guy that’s a millionaire. Do you understand? And uh ... But we can’t let him know. Capisce?
MARTINO: Right.
BARRAFATO: You just gotta, ’cause you just gotta get him to, to us.

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Cite This Page — Counsel Stack

Bluebook (online)
692 F.3d 79, 2012 WL 3289824, 2012 U.S. App. LEXIS 17005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-antico-ca2-2012.