United States v. Vernace

811 F.3d 609, 2016 U.S. App. LEXIS 1717, 2016 WL 386154
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 2, 2016
DocketDocket No. 14-2197-cr
StatusPublished
Cited by27 cases

This text of 811 F.3d 609 (United States v. Vernace) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vernace, 811 F.3d 609, 2016 U.S. App. LEXIS 1717, 2016 WL 386154 (2d Cir. 2016).

Opinion

CHIN, Circuit Judge:

In 1981, the two owners of the Shamrock Bar in Queens, New York, were shot to death in their establishment, following an altercation that began with a spilled drink. The murders became known as the Shamrock Murders.

More than thirty years later, defendant-appellant Bartolomeo Vernace was convicted, following a jury trial, of participating in the Shamrock Murders. On May 30, 2014, the district court entered judgment convicting him of (1) conspiring to engage in a racketeering enterprise in violation of the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) and (d), (2) using, carrying, and possessing a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and (3) operating an illegal gambling business in violation of 18 U.S.C. § 1955.

Specifically, on the RICO count, the jury found that Vernace committed nine predicate racketeering acts in support of the conviction, including the Shamrock Murders and heroin distribution and related conspiracies. The district court sentenced him principally to life imprisonment for the RICO conspiracy, ten years’ imprisonment for the § 924(c) violation to be served consecutively, and five years’ imprisonment on the illegal gambling count to be served concurrently.

Vernace appeals, arguing that (1) the evidence was insufficient for the jury to find that the Shamrock Murders and heroin offenses were related to the RICO conspiracy, (2) he was convicted under the wrong version of § 924(c), and (3) newly discovered evidence requires that we grant him a new trial. For the reasons set forth below, we affirm.

BACKGROUND

I. The Facts

At trial, the Government elicited testimony from 35 witnesses, including cooperators from the Gambino crime family and another “La Cosa Nostra” crime family, who testified about Vernace’s role in the Gambino crime family. We recount below that evidence in the light most favorable to [613]*613the Government. See United States v. Coplan, 703 F.3d 46, 62 (2d Cir.2012).

A. Vernace’s Involvement in the Gambino Crime Family

When Vernace was arrested on January 17, 2011, he was, by all accounts, a member of the Gambino crime family’s three-person ruling panel, in charge of the operations of the organization. The Gambino crime family is an organized operation that generates money for its members through criminal activities, including drug trafficking, robbery, extortion, illegal gambling, and loansharking. It is one of the five organized crime families in New York City that make up “La Cosa Nostra.” Gambino members start as “associates” before they are inducted as “soldiers,” who run their own crews of associates, arid then move up to become “captains.”

B. The Shamrock Murders

John D’Agnese and Richard Godkin, the owners of the Shamrock Bar in Queens, New York, died on April 11, 1981 — D’Ag-nese from a single bullet to the sternum and Godkin from a single bullet to the head.

The evening before, on April 10, 1981, someone spilled a drink on the dress of Frank Riccardi’s girlfriend at the Shamrock Bar. At the time, Riccardi was a Gambino associate in Anthony Ruggiano’s crew. Riccardi got visibly upset; this attracted the attention of the bar owners. When D’Agnese introduced himself as owning the Shamrock Bar and attempted to calm Riccardi down, Riccardi retorted, “No, you don’t. I run this place.” App. at 220. He grabbed a bottle of vodka and set it down next to him. “See? This is my place. I do what I want in here.” Id. at 221. Godkin then intervened, and after a conversation, Riccardi appeared to have calmed down. Riccardi then left.

Riccardi, however, went next to Joseph Corozzo’s social club, a Gambino gambling operation that members frequented. The social club was unmarked: Only a “members only” sign adorned its door. There, Riccardi found Vernace and Ronald Barlin. Vernace had been a Gambino associate since the early 1970s; though he and Bar-lin were once part of the same crew as Riccardi, they were now part of the same crew as Corozzo. Riccardi, Vernace, and Barlin together departed for the Shamrock Bar.

They entered through the front door. Barlin drew his gun. The crowd scattered. Riccardi went for D’Agnese. Ver-nace went for Godkin. Vernace had God-kin pinned to the shuffleboard machine. “Where’s your gun now, tough guy? Go for your gun. Go ahead. Go for it,” Ver-nace taunted, holding his own gun. App. at 224. Two gunshots were fired. D’Ag-nese collapsed; Godkin stumbled. Riccar-di and Vernace bolted for the front door; Barlin ran, too, but not before he fired a round into the ceiling, capping their escape. D’Agnese and Godkin had been shot — -they died the next day.

C.Heroin Distribution

Earlier, in January 1981, Special Agent Louis Diaz of the Drug Enforcement Agency was investigating undercover a heroin trafficking ring. He met Bruce Erbacher and Herbert Frank, two heroin dealers. Diaz told Erbacher and Frank that he was looking for a new source of supply for his clients in Philadelphia. Er-bacher revealed that his suppliers were “well organized,” meaning “organized crime, Italian Mafia, La Cosa Nostra.” App. at 316. Diaz later asked Frank if this meant “connected[,] [flamily.” Id. at 318. Frank responded, “you got it.” Id. at 319. After several heroin transactions, Erbacher mentioned during a conversation [614]*614that his suppliers were “Ron and Pepe.” Id. at 321. Though Vernace sported many nicknames throughout the years, at least one of them around that time was “Pepe.”

At the time, Erbacher and Frank also dealt drugs with George Gleckler and his girlfriend. In conversations during these dealings, Gleckler’s girlfriend testified that she heard, from time to time, the names “Pepe and Ron.” Id. at 379. Then, at a dinner party one night at Frank’s apartment, she saw Vernace and an associate come by and speak with Gleckler and Frank for fifteen or twenty minutes in a bedroom. Then, Gleckler spoke with Frank. Afterward, Gleckler told his girlfriend that they now wanted him to sell heroin, too.

On May 13, 1981, Agent Diaz, after obtaining a warrant, proceeded to Frank’s apartment to make an arrest. There he found and arrested not only Frank, but also Barlin and Anthony Cuccio, another Gambino member. From the premises, he seized heroin, a scale, a sawed-off shotgun, and $50,000 in cash. As he was making these arrests and seizures, the phone rang. The man on the phone identified himself as Pepe and asked to speak with Cuccio. Pepe asked Cuccio, “Is everything okay?” Id. at 327. When Cuccio answered, “no,” they both hung up. Id.

D. Vernace’s Rise and Arrest

Vernace went into hiding following the Shamrock Murders and after Barlin and the others had been arrested and indicted. He did not reappear until the mid-1980s. Starting then, Gambino members would see him periodically at Gambino social clubs or Christmas parties. By the late 1990s, Vernace was formally inducted as a soldier.

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Cite This Page — Counsel Stack

Bluebook (online)
811 F.3d 609, 2016 U.S. App. LEXIS 1717, 2016 WL 386154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vernace-ca2-2016.