18-2482(L) United States v. Pastore
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 TO 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 8th day of June, two thousand twenty-two.
PRESENT: JOHN M. WALKER, RICHARD J. SULLIVAN, Circuit Judges, ALISON J. NATHAN, District Judge.* –––––––––––––––––––––––––––––––––––– UNITED STATES OF AMERICA,
Appellee,
v. Nos. 18-2482(L), 18-2610(Con) STEVEN PASTORE, SALVATORE DELLIGATTI,
Defendants-Appellants. † ––––––––––––––––––––––––––––––––––––
* Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation at the time this case was heard. † The Clerk of Court is respectfully directed to amend the official case caption as set forth above. FOR DEFENDANTS-APPELLANTS: VIVIAN SHEVITZ, (Larry J. Silverman, on the brief), Attorneys at Law, South Salem, NY, for Appellant Steven Pastore. LUCAS ANDERSON, Rothman, Schneider, Soloway & Stern, LLP, New York, NY, for Appellant Salvatore Delligatti. FOR APPELLEE: JORDAN L. ESTES, Assistant United States Attorney (Samson Enzer, Jason M. Swergold, Karl Metzner, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. Appeal from judgments of conviction and sentences in the United States
District Court for the Southern District of New York (Katherine B. Forrest, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendants-Appellants Steven Pastore and Salvatore Delligatti appeal from
judgments entered by the United States District Court for the Southern District of
New York in connection with their participation in a criminal enterprise known as
the Genovese Crime Family (the “Family”). 1 Delligatti was sentenced to 300
1Decision of this case was delayed by the panel’s need to await its turn in a queue of cases pending in this Circuit resolving questions arising from the Supreme Court’s ruling in United States v. 2 months’ imprisonment after a jury found him guilty of conspiracy to commit
racketeering, in violation of 18 U.S.C. § 1962(d) (Count One); conspiracy to commit
murder in aid of racketeering and attempted murder in aid of racketeering, in
violation of 18 U.S.C. § 1959(a)(5) (Counts Two and Three); conspiracy to commit
murder-for-hire, in violation of 18 U.S.C. § 1958 (Count Four); illegal gambling, in
violation of 18 U.S.C. § 1955 (Count Five); and using a firearm during and in
relation to a crime of violence, and possessing a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Seven). Pastore, who
pleaded guilty to Count One only, was sentenced to 24 months’ imprisonment and
was ordered to forfeit $125,000.
Delligatti raises an assortment of challenges on appeal, including that (1) the
evidence at trial was not sufficient to sustain his convictions on Counts One, Two,
Three, and Five; (2) Counts One and Four of his indictment lacked adequate
information and were constructively amended at trial; (3) the district court
erroneously admitted certain testimony at trial; and (4) his sentence of 300 months’
imprisonment is substantively unreasonable. 2 Pastore challenges his forfeiture
Davis, 139 S. Ct. 2319 (2019), interpreting “crime of violence.” See United States v. Laurent, 33 F.4th 63, 73 n.3 (2d Cir. 2022). 2Delligatti also challenges his conviction on Count Seven for use of a firearm during and in relation to a “crime of violence,” arguing that the underlying predicates were not crimes of 3 order on various grounds, arguing that a jury should have determined the amount
and that the district court improperly calculated the total and relied on insufficient
evidence. We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal.
I. Sufficiency of the Evidence
Delligatti challenges the sufficiency of the evidence underlying his
racketeering convictions (Counts One through Three) and gambling conviction
(Count Five). We review each challenge de novo, “and must affirm if the evidence,
when viewed in its totality and in the light most favorable to the government,
would permit any rational jury to find the essential elements of the crime beyond
a reasonable doubt.” United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004).
Delligatti first contends the government failed to identify the “core”
personnel of the Family and thus did not sufficiently prove an “enterprise” as
required to convict him of his racketeering charges. At trial, a government agent
and a cooperating witness who was a member of another crime family testified
about the structure of the Family, the illegal activities of Family members, and the
Family’s role in the broader network of organized crime families known as La
violence in light of Davis, 139 S. Ct. 2319. We address that challenge in a separate opinion that accompanies this summary order.
4 Cosa Nostra. While these witnesses did not identify every individual in the
Family, they described the structure of the enterprise and specified persons
functioning as a “continuing unit” during the relevant period. United States v.
Turkette, 452 U.S. 576, 583 (1981) (explaining that an enterprise is “proved by
evidence of an ongoing organization, formal or informal, . . . [with] various
associates function[ing] as a continuing unit”); see United States v. Payne, 591 F.3d
46, 60 (2d Cir. 2010) (recognizing that an enterprise “may continue to exist even
though it undergoes changes in membership” (citation omitted)). Further, the
government offered extensive evidence of Delligatti’s association with the Family
and his engagement in criminal activities with a Genovese soldier named Robert
DeBello and two Genovese associates, Ryan Ellis and Robert Sowulski. This
evidence was more than sufficient to establish the existence of an enterprise.
Next, Delligatti argues that the government did not sufficiently establish a
“pattern” of racketeering activity to prove an offense under the Racketeering
Influenced and Corrupt Organizations Act (“RICO”). He also contends that,
because the jury was not asked to return a special verdict sheet as to Count One, it
is impossible to know which charged acts constitute the requisite “pattern” of
activity. A “pattern of racketeering activity” under RICO requires at least two
5 racketeering acts within a ten-year span, excluding periods of imprisonment; acts
linked to the same racketeering enterprise are ordinarily sufficient to establish
such a pattern. See United States v. Daidone, 471 F.3d 371, 374–76 (2d Cir. 2006);
United States v. Indelicato, 865 F.2d 1370, 1383–84 (2d Cir. 1989) (stating that an act
in furtherance of a racketeering business “automatically carries with it the threat
of continued racketeering activity”).
Count One of the indictment charged that members and associates of the
Family – a criminal enterprise – engaged in various crimes “including conspiracy
to commit murder; attempted murder; extortion; and the operation of illegal
gambling businesses.” Delligatti App’x at 39. At trial, the district court instructed
the jury that it did not need to “decide whether [Delligatti] agreed to the
commission of any particular racketeering act” to convict him of Count One, but
it had to “be unanimous as to which type or types of predicate racketeering activity
[he] agreed would be committed.” Id. at 438. The court later instructed the jury
on the elements of each predicate offense.
Based on the trial record, we are persuaded that there was ample evidence
to prove Delligatti’s involvement in multiple predicate acts linked to the Family.
As discussed below, the jury heard that (1) Delligatti directed a murder plot; (2)
6 DeBello approved and financially benefitted from that plot; (3) Delligatti and
DeBello intimidated a nightclub owner and employee to obtain payments from the
club; and (4) Delligatti participated in an illegal gambling scheme run by another
Genovese associate. The evidence shows that the predicate acts charged in Count
One were “related” to the Family and together “amount[ed] to . . . continued
criminal activity” sufficient to establish a “pattern” of racketeering activity.
Daidone, 471 F.3d at 375.
Delligatti also argues that his convictions for conspiracy to commit murder
in aid of racketeering and attempted murder in aid of racketeering, in violation of
18 U.S.C. § 1959(a)(5) (Counts Two and Three), must be dismissed because the
government did not present sufficient evidence that Delligatti planned a murder
for the purpose of gaining entrance to or maintaining a position within the Family.
But while section 1959 permits the government “to prosecute defendants for
violent crimes intended . . . to permit a defendant to maintain or increase [his]
position in a RICO enterprise,” United States v. Pimentel, 346 F.3d 285, 295 (2d Cir.
2003) (internal quotation marks omitted), the government need not prove that
“was the defendant’s sole or principal motive,” United States v. Concepcion, 983 F.2d
369, 381 (2d Cir. 1992).
7 Delligatti emphasizes that he was solicited and paid to kill Joseph Bonelli
not by a member of the Family, but by Luigi Romano, the owner of a local gas
station whom Bonelli had “terrorized.” Delligatti App’x at 346. Trial testimony
established, however, that Family members frequented Romano’s gas station, that
the Family was engaged in bookmaking, and that Bonelli was suspected of
cooperating with the police against bookmakers. The jury also heard testimony
that DeBello, a Genovese soldier, approved Bonelli’s murder and received a cut of
the amount Romano paid for the hit. From this evidence, a rational jury could
readily infer that Delligatti plotted Bonelli’s murder, at least in part, to benefit the
Family and to advance his status within the Family. See United States v. Whitten,
610 F.3d 168, 179–80 (2d Cir. 2010) (finding intent under section 1959 where
testimony established that committing violence authorized by crew leaders could
enhance status); Concepcion, 983 F.2d at 381.
Finally, Delligatti argues there was insufficient evidence to support his
conviction for participating in the operation of an illegal gambling business. To
prove that Delligatti participated in the operation of an illegal gambling business
as charged in the indictment, the government had to show, among other things,
that the business (1) involved five or more people and (2) received more than five
8 bets totaling over $5,000 in one day. See 18 U.S.C. § 1955; N.Y. Penal Law
§ 225.10(1).
The evidence at trial clearly established that Delligatti was a “runner” in a
sports-betting operation led by Genovese associate Ryan Ellis; that Delligatti had
a “sheet” with Ellis – meaning that Delligatti set up clients to bet and received
some of the proceeds if his clients lost; that DeBello also received a cut of the
proceeds from the operation; and that the business employed numerous other
runners, including Luigi Caminiti, Michael Vigorito, and Scott Jacobson. The
government also introduced one of Jacobson’s gambling sheets, which itself
showed that fifteen clients had placed bets and lost a total of $5,982 in a single day.
Considered as a whole, this evidence sufficiently supported Delligatti’s conviction
on Count Five.
II. Adequacy of Indictment & Jury Instructions
Delligatti argues for the first time on appeal that his convictions on Count
One (racketeering conspiracy) and Count Four (murder-for-hire conspiracy)
should be reversed because his indictment failed to specify certain necessary
details and statutory citations. Because Delligatti did not raise this claim “prior to
trial, as unambiguously required by the law of th[is] Circuit,” and he has shown
9 no cause for failing to timely do so, the claim “must be rejected.” United States v.
Spero, 331 F.3d 57, 61–62 (2d Cir. 2003); see also Fed. R. Crim. P. 12(b)(3)(B)
(requiring that objections alleging “a defect in the indictment” for “lack of
specificity” or “failure to state an offense” be raised by pretrial motion if “the basis
for the motion is then reasonably available and the motion can be determined
without a trial on the merits”).
Delligatti also maintains that the district court’s jury instructions on Counts
One and Four constructively amended his indictment. Because he failed to object
to these instructions at trial, we review for plain error. See United States v. Hertular,
562 F.3d 433, 444 (2d Cir. 2009). To prevail on this challenge, Delligatti “must
demonstrate that . . . the presentation of evidence and jury instructions . . . so
modif[ied] essential elements of the offense charged that there is a substantial
likelihood that [he] may have been convicted of an offense other than that charged
in the indictment.” United States v. D’Amelio, 683 F.3d 412, 416 (2d Cir. 2012)
(internal quotation marks omitted). Upon review of the indictment and the district
court’s detailed jury instructions, we find no basis for concluding that Count One
or Four were constructively amended.
10 III. Evidentiary Rulings
Next, Delligatti challenges the district court’s admission of certain testimony
at trial. We review the court’s evidentiary rulings for abuse of discretion and
reverse only if the court based its decision “on an erroneous view of the law or on
a clearly erroneous assessment of the evidence, or if its decision cannot be located
within the range of permissible decisions.” United States v. Barret, 848 F.3d 524,
531 (2d Cir. 2017).
Delligatti first contests the admission of expert testimony from Special
Agent John Carillo, who testified about the structure and conduct of La Cosa
Nostra and the Genovese Crime Family, as well as the code of silence known as
“Omerta.” Agent Carillo’s testimony gave context to the crimes charged; his
specialized knowledge was also highly probative as to whether the Family was an
“enterprise” and whether Delligatti’s acts were related to that enterprise. See Fed.
R. Evid. 702(a); United States v. Locascio, 6 F.3d 924, 936 (2d Cir. 1993) (allowing
testimony “on the nature and function of organized crime families, imparting the
structure of such families and disclosing the ‘rules’ of . . . La Cosa Nostra”). It was
not an abuse of discretion to admit this testimony.
11 Delligatti next challenges the district court’s decision to allow testimony
from Philip Gurian, who testified that he ran a sports-betting operation with
Delligatti and another Genovese associate – Christopher Castellano – who was
later suspected of cooperating with law enforcement and subsequently killed.
Although there was no evidence that Delligatti was involved in Castellano’s
murder, the court concluded that Gurian’s testimony about Castellano was
“directly relevant to the existence and nature of the charged [racketeering]
conspiracy” and “would help the jury understand why Delligatti would have been
willing to murder Bonelli – who, like Castellano, was suspected of cooperating
with law enforcement.” Delligatti App’x at 91. The court also found that such
evidence was “similar to, and no more prejudicial than the crimes with which
Delligatti has been charged.” Id.
Evidence that Castellano had been considering cooperating and was later
murdered was relevant to establishing Delligatti’s motive for killing Bonelli
(another suspected cooperator), especially when coupled with testimony about the
Family’s rule prohibiting cooperation on penalty of death. See Fed. R. Evid. 403.
Moreover, Gurian’s brief testimony about Castellano’s murder was not “more
sensational or disturbing” than evidence of the charged crimes, which included
12 Delligatti’s extensive efforts to have Bonelli killed. United States v. Roldan-Zapata,
916 F.2d 795, 804 (2d Cir. 1990). On balance, we find that the district court did not
abuse its discretion in admitting this testimony.
Delligatti separately argues that Gurian’s testimony included improper
hearsay statements that Castellano made to Gurian when they were both
incarcerated. We agree with the district court that these statements were
admissible as statements against Castellano’s penal interest under Rule 804(b)(3)
of the Federal Rules of Evidence. Rule 804(b)(3) permits the admission of a hearsay
statement at trial “if the declarant is unavailable as a witness,” and the statement
is one that (1) “a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it was so contrary to
the declarant’s proprietary or pecuniary interest or had so great a tendency . . . to
expose the declarant to civil or criminal liability; and” (2) “is supported by
corroborating circumstances that clearly indicate its trustworthiness, if it is offered
in a criminal case as one that tends to expose the declarant to criminal liability.”
Gurian testified that Castellano said he was an “enforcer” for two Genovese
soldiers, Federici and Romanello, which Gurian understood to mean that
Castellano “would intimidate people, beat people up, [and] hurt people to collect
13 money to end up accomplishing whatever result” the mobsters demanded.
Delligatti App’x at 280. These statements clearly would have subjected Castellano
to criminal liability. See United States v. Gupta, 747 F.3d 111, 129 (2d Cir. 2014);
United States v. Persico, 645 F.3d 85, 102 (2d Cir. 2011). Corroborating evidence also
bolsters the trustworthiness of Castellano’s statements: Castellano made these
statements to Gurian, his friend and fellow inmate, rather than to law enforcement
agents “whose favor he might be expected to curry.” United States v. Katsougrakis,
715 F.2d 769, 775 (2d Cir. 1983); see Gupta, 747 F.3d at 127. Further, after both men
were out of prison, Castellano introduced Gurian to Federici at a dinner and
connected Gurian with Delligatti, a fellow Genovese associate who also knew
Romanello. And since Castellano’s death in 2010 made him unavailable at trial,
the district court did not err in admitting Castellano’s prior statements under Rule
804(b)(3).
Finally, Delligatti challenges the district court’s decision to permit Robert
Sowulski to testify about Delligatti’s suggestion that they plant a bomb in a club
targeted by the Family for extortion. Delligatti argues these statements made him
look like a “volatile and violent person” but were not probative of an existing
extortion conspiracy, and thus should have been excluded under Federal Rules of
14 Evidence 402 and 403. Delligatti Br. at 56. But Delligatti’s willingness to plant a
bomb at a nightclub after prior failed efforts to intimidate and take over the club
was highly probative of his participation in a racketeering conspiracy involving
extortion. Though no bomb was ultimately planted, Delligatti’s proposal was
relevant to establish his state of mind and intent while participating in the
racketeering conspiracy. The court properly exercised its discretion in admitting
that testimony.
IV. Reasonableness of Sentence
Lastly, Delligatti challenges the substantive reasonableness of his below-
Guidelines sentence because of “[t]he stark disparities” between his 300-month
sentence and the sentences of his co-defendants. Delligatti Br. at 58. We review a
sentence for substantive reasonableness under “a deferential abuse-of-discretion
standard,” “tak[ing] into account the totality of the circumstances” and “giving
due deference to the sentencing judge’s exercise of discretion.” United States v.
Cavera, 550 F.3d 180, 189–90 (2d Cir. 2008) (en banc) (internal quotation marks
omitted). In this case, Delligatti’s sentence fell below the minimum advisory
Sentencing Guidelines sentence of 324 months. Moreover, while district courts are
not required to consider disparities among co-defendants – particularly if they are
15 not similarly situated, see United States v. Johnson, 567 F.3d 40, 54 (2d Cir. 2009) –
here the court properly considered the section 3553(a) factors and applied a
downward variance to prevent too great a disparity between Delligatti and his co-
defendants. Because this was well “within the range of permissible decisions,” we
affirm. See Cavera, 550 F.3d at 191.
V. Forfeiture
Pastore challenges his $125,000 forfeiture order, arguing that (1) a jury
should have determined the forfeiture amount, and (2) the district court erred in
calculating the amount based on gross receipts of funds that were not directly
traced to any bettor in the gambling scheme. He also argues that the court
determined the forfeiture amount based on insufficient and unreliable evidence.3
“We review a district [court’s] legal conclusions regarding forfeiture de
novo and [its] factual determinations for clear error.” United States v. Daugerdas,
837 F.3d 212, 231 (2d Cir. 2016). “For a criminal forfeiture order to pass muster,
3In his briefs, Pastore challenged the procedural and substantive reasonableness of his sentence. He has since withdrawn as moot his “argument concerning [his] incarceratory sentence.” Case No. 18-2482, Doc. No. 153. To the extent that he maintains a procedural challenge to the district court’s imposition of forfeiture, Pastore fails to explain how the error he alleges – a factual finding in violation of Federal Rule 32 of Criminal Procedure – affected the forfeiture calculation. Moreover, the record makes clear that this challenge lacks merit. See Pastore App’x at 67 (stating that court won’t rely on disputed fact at sentencing).
16 the government must establish, by a preponderance of the evidence, the ‘requisite
nexus between the property and the offense.’” Id. (quoting Fed. R. Crim. P. 32).
Pastore’s argument that a jury should have determined his forfeiture
amount is foreclosed by Supreme Court and Second Circuit precedent. In
Libretti v. United States, the Supreme Court held that there is no right to a jury trial
on a forfeiture determination, see 516 U.S. 29, 49–52 (1995), and this Circuit has
since recognized that “Libretti . . . remain[s] controlling precedent,” United States v.
Stevenson, 834 F.3d 80, 85–86 (2d Cir. 2016).
Pastore also argues that the district court should have calculated his
forfeiture based on net, rather than gross, proceeds. He cites to United States v.
Masters, in which the Seventh Circuit “assume[d]” (with little analysis) “that the
proceeds to which [18 U.S.C. § 1963] refers are net, not gross, revenues,” and
dismissed this Circuit’s precedent, United States v. Lizza Industries, Inc., 775 F.2d
492, 498 (2d Cir. 1985), as not “square[d]” with the statutory language. 924 F.2d
1362, 1369–70 (7th Cir. 1991). But Masters is an outlier; no other circuit to have
addressed this issue has agreed with the Seventh Circuit. See, e.g., United States v.
Cadden, 965 F.3d 1, 38 (1st Cir. 2020); United States v. Christensen, 828 F.3d 763, 822–
17 24 (9th Cir. 2015); United States v. Simmons, 154 F.3d 765, 770–71 (8th Cir. 1998);
United States v. DeFries, 129 F.3d 1293, 1314 (D.C. Cir. 1997).
In any event, we remain bound by this Court’s decision in Lizza Industries.
In that case, after the defendants were convicted under RICO for colluding on bids
for publicly funded construction contracts, 775 F.2d at 494, the district court
calculated forfeiture “by deducting from the money received on the illegal
contracts only the direct costs incurred in performing those contracts,” id. at 498.
We affirmed the district court’s calculation based on “gross rather than net
profits.” Id. (describing the court’s calculation – which deducted only direct costs
of performance from gross profits derived under illegal contracts – as “consistent
with the purposes of the RICO statute”). In doing so, we explained that “[o]ften[,]
proof of overhead expenses and the like is subject to bookkeeping conjecture and
is therefore speculative.” Id. Accordingly, we emphasized that “RICO does not
require the prosecution to prove or the trial court to resolve complex
computations, so as to ensure that a convicted racketeer is not deprived of a single
farthing more than his criminal acts produced.” Id.
More recently, in United States v. Peters, we likewise held that the term
“proceeds” in another criminal forfeiture statute, 18 U.S.C. § 982(a)(2), refers to
18 gross receipts rather than net profits, emphasizing that “it should not be necessary
for the prosecutor to prove what the defendant’s overhead expenses were.” 732
F.3d 93, 101 (2d Cir. 2013) (quotation mark and alteration omitted) (noting that a
properly “broad reading of ‘proceeds’ in the context of criminal forfeiture” under
RICO should “punish[] ‘all convicted criminals who receive income from illegal
activity, and not merely those whose criminal activity turns a profit’” (quoting
Simmons, 154 F.3d at 771)).
Here, Pastore offered no evidence of direct costs that could be deducted
from the proceeds he received, and even if he had offered such evidence, it is
unlikely that this Court’s holding in Lizza Industries – which contemplated
deduction of lawful costs for the performance of illegally obtained construction
contracts – would permit deduction of unlawful costs incurred in an illegal
gambling scheme. See Pastore App’x at 54 (district court stating it had received no
evidence of “any . . . amounts deducted from” proceeds “received by Mr.
Pastore”); Peters, 732 F.3d at 101; cf. United States v. Ofchinick, 883 F.2d 1172, 1181–
82 (3d Cir. 1989) (noting that Lizza Industries “did not address whether a district
court must deduct direct costs,” and that “[i]f direct costs need be taken into
account, it is the defendant who has the burden of going forward on this issue,”
19 because “[t]he government should not have to prove the absence of direct costs in
a case in which the defendant has not pointed to costs that might be deductible”).
We conclude that where the district court had no evidence of any direct costs paid
out from Pastore’s unlawful proceeds, it committed no error and appropriately
followed this Court’s reasoning in Lizza Industries and Peters by calculating
forfeiture based on the proceeds that Pastore received.
Pastore also argues that the district court erred by including funds not
traced to specific bettors in the bookmaking business. Citing to Honeycutt v. United
States, 137 S. Ct. 1626 (2017), he argues that that the district court was required to
trace proceeds from a losing bettor to Pastore himself. We disagree.
In Honeycutt, the Supreme Court held that courts ordering forfeiture under
21 U.S.C. § 853(a)(1) cannot hold a defendant “jointly and severally liable for
property that his co-conspirator derived from the crime but that the defendant
himself did not acquire.” 137 S. Ct. at 1630. This Circuit has not yet determined
“whether Honeycutt’s ruling . . . applies equally in all respects to forfeiture orders
under other statutes,” United States v. Fiumano, 721 F. App’x 45, 51 n.3 (2d Cir.
2018); see United States v. Gil-Guerrero, 759 F. App’x 12, 18 n.8 (2d Cir. 2018), but
even if we were to assume that the holding of Honeycutt applies equally to
20 forfeiture under the criminal RICO statute, it would not affect the calculation in
this case. “While we have not yet fully defined the parameters of Honeycutt,” we
have clarified that the “bar against joint and several forfeiture for co-conspirators
applies only to co-conspirators who never possessed the tainted proceeds of their
crimes.” United States v. Tanner, 942 F.3d 60, 67–68 (2d Cir. 2019) (emphasis added).
So, if a defendant at one point possessed proceeds from criminal activity, he “can
still be held liable to forfeit the value of those tainted proceeds, even if those
proceeds are no longer in his possession because they have been dissipated or
otherwise disposed of by any act or omission of the defendant.” Id. at 68 (internal
quotation marks omitted).
In this case, the government demonstrated that Pastore received payments
from runners and thus possessed proceeds from the illegal gambling operation.
While the payments may not have always come directly from bettors’ hands, we
recognize that money is fungible and the payments undoubtedly constituted
proceeds from the gambling scheme. The district court’s calculation of forfeiture
based solely on these illegal proceeds paid to Pastore did not conflict with the
Supreme Court’s holding in Honeycutt, and we thus find no error.
21 Finally, although he conceded below that he received proceeds from the
illegal gambling operation, Pastore asserts on appeal that there was insufficient
evidence to support forfeiture in the amount of $125,000. In calculating forfeiture,
a court “may [rely] on evidence already in the record . . . and on any additional
evidence or information submitted by the parties and accepted by the court as
relevant and reliable.” Fed. R. Crim. P. 32.2(b)(1)(B); see United States v. Capoccia,
503 F.3d 103, 109–10 (2d Cir. 2007).
Here, the court considered evidence, including wiretapped calls and
surveillance reports, that the government introduced at a forfeiture hearing to
prove Pastore’s receipt of at least $125,000 from the gambling operation. Pastore
stipulated to the authenticity of this evidence and did not call any witnesses to
impeach the reliability of the evidence. The court’s finding – “well beyond a
preponderance” – that Pastore received $125,000 in proceeds traceable to the
gambling operation was not clearly erroneous. Pastore App’x at 94; see United
States v. Gaskin, 364 F.3d 438, 461 (2d Cir. 2004) (“[T]he government need prove
facts supporting forfeiture only by a preponderance of the evidence.”).
* * *
22 We have considered Defendants’ remaining arguments and conclude that
they lack merit. For the foregoing reasons and those in the concurrently filed
opinion, the district court’s judgment is AFFIRMED.
FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court