United States v. Riggi (Mannarino)

Opinion

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

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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

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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.

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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

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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,

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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).

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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.

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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);

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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

24

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.

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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

26

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.

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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

28

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

29

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

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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

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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

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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

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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

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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

35

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

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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.

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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

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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

39

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

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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

41

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

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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

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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

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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

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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

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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

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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.