United States v. Federico Giovanelli, Steven Maltese, and Carmine Gualtiere

945 F.2d 479, 1991 U.S. App. LEXIS 21485
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 13, 1991
Docket187, 188, 190, Dockets 89-1604, 89-1621, 89-1622
StatusPublished
Cited by35 cases

This text of 945 F.2d 479 (United States v. Federico Giovanelli, Steven Maltese, and Carmine Gualtiere) 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. Federico Giovanelli, Steven Maltese, and Carmine Gualtiere, 945 F.2d 479, 1991 U.S. App. LEXIS 21485 (2d Cir. 1991).

Opinions

ALTIMARI, Circuit Judge:

Defendants-appellants Federico “Fritzy” Giovanelli, Steven Maltese and Carmine Gualtiere appeal from judgments of conviction, entered in the United States District Court for the Southern District of New. York, following a jury trial before Judge Constance Baker Motley.

The defendants’ convictions were the consequence of a prosecution in which the government based federal racketeering charges, see 18 U.S.C. § 1962(c) & (d) (1988), on conduct that had already been the subject of prior state criminal proceedings. Specifically, for the third time, the defendants faced charges that they had murdered a New York City Police Department (“NYPD”) Detective and attempted to murder another NYPD Detective. Here, the charges were in the form of predicate acts of racketeering. On appeal, the defendants contend, among other things, that the trial court’s prohibition against directly mentioning the prior state trials deprived them of the ability to fully cross-examine [482]*482the witnesses against them and to otherwise defend against the murder and attempted murder allegations. The defendants also challenge the jury’s finding that they had violated the racketeering statute by engaging in the collection of unlawful debt. In addition, the defendants claim that reversal of their convictions is warranted on the ground that the prosecution violated principles of double jeopardy. Finally, the defendants contend that the prosecution engaged in misconduct by playing for the first time during rebuttal summation tape-recordings of telephone conversations which served to undermine the defense’s position on the murder and attempted murder allegations.

As discussed below, we are not persuaded that reversal of the defendants’ convictions is warranted. However, we do believe that the defendants were denied an opportunity to defend properly against the predicate acts of murder and attempted murder. Accordingly, we affirm the judgments of conviction, vacate the jury’s findings on the murder and attempted murder predicate acts of racketeering, and remand to the district court for resentencing.

BACKGROUND

1. The Shooting Of Anthony Venditti And Kathleen Burke

In late 1985 and early 1986, NYPD Detectives Anthony Venditti and Kathleen Burke were engaged in the investigation of suspected members and associates of the Genovese Organized Crime Family. Included among those under investigation were defendants-appellants Federico Giova-nelli, Steven Maltese and Carmine Gualti-ere.

On the evening of January 21, 1986, Ven-ditti and Burke were conducting surveillance of a social club located in the Ridge-wood section of Queens. At approximately 8:00 p.m., they decided to discontinue surveillance. Venditti told Burke, who was driving, that he needed to use the men’s room located in the nearby Castillo Diner. At Venditti’s request, Burke drove to the restaurant and dropped him off.

While Venditti went into the restaurant, Burke drove around the block once and parked their unmarked police car, a brown Lincoln Town Car, across the street from the Diner. After exiting the vehicle, Burke walked towards the Diner and began to ascend one of two staircases leading to its entrance. Having taken the first few steps, Burke noticed that Venditti was in the midst of descending the other staircase. Burke therefore alighted the staircase and began walking in the direction of the second staircase. As Burke did so, her view of Venditti was briefly obstructed. When she again caught sight of him, Venditti was flanked by three men — one on each side and one directly in front of him. Believing the men to be the individuals they had been investigating, Burke called out a warning. The man in front of Venditti immediately turned toward Burke and fired one shot from a gun, striking her in the chest. Simultaneously, Burke removed a revolver from her jacket pocket and, as she fell to the ground, fired five shots at her assailant. The assailant then walked towards Burke and fired a second shot that missed; he then turned and fired at Venditti. At this time, Burke observed that the other two men were also shooting at Venditti. She watched as Venditti’s body made a strange jerking motion and fell to the ground. Shortly thereafter, Burke lost consciousness.

Detective Burke was eventually taken to nearby Wyckoff Heights Hospital, where it was determined that a bullet had entered her body through the left chest area, broken two ribs, punctured her left lung, and broken her scapula, before exiting through her back. Burke received emergency medical treatment that included the insertion of a chest tube in order to drain her thoracic cavity. While being treated, Burke was interviewed by NYPD Detective Anton Olsen. Burke provided a detailed account of the events leading up to the shooting and identified “Fritzy,” that is, Federico Giova-nelli, as her assailant. Although she described the two other individuals involved in the shooting, Burke failed to identify them by name. In subsequent interviews, however, she insisted that the other men [483]*483were Steven Maltese and Carmine Gualti-ere.

Despite suffering various ailments as a consequence of the shooting, Burke ultimately was able to return to duty as a NYPD Detective. Detective Venditti, who was struck by a total of four bullets, died on the night of January 21.

2. The State Prosecution

As a consequence of the foregoing, the State of New York obtained an indictment charging Giovanelli, Maltese and Gualtiere with the murder of Detective Anthony Ven-ditti and the attempted murder of Detective Kathleen Burke. The charges resulted in two trials in New York State Supreme Court, Queens County. At the conclusion of the first trial, all three defendants were acquitted of the attempted murder of Detective Burke. The jury, however, was unable to reach a verdict regarding the murder of Detective Venditti and a mistrial was declared with respect to that charge.

All three defendants were re-tried on the murder charge. During summation in the second trial, Frank Simone — an eyewitness who testified at the two state trials and implicated both Giovanelli and Gualtiere— came forward and declared that he had given untruthful testimony. As a result, Simone was permitted to retake the stand and recant portions of his prior testimony. Specifically, Simone claimed that under pressure from the police he had falsely testified that he had seen Gualtiere at the scene of the murder. At the end of the second trial, the jury acquitted Gualtiere but, once again, was unable to reach a verdict with respect to Giovanelli and Maltese. No further state prosecution followed.

3. The Federal Prosecution

On February 28, 1989, a seven-count federal indictment was filed, charging Giova-nelli, Maltese and Gualtiere with various offenses arising from their alleged participation in a racketeering enterprise. The principal counts of the indictment charged all three defendants with participating in, and conspiring to participate in, the enterprise’s affairs through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) & (d).

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Bluebook (online)
945 F.2d 479, 1991 U.S. App. LEXIS 21485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-federico-giovanelli-steven-maltese-and-carmine-gualtiere-ca2-1991.