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Comments on Criminal Issues
June 4, 2007
GOTTI CRIME FAMILY TAKES A HIT
Peter Gotti, John Matera, and Thomas Carbonaro, all members of the New York City Carlos Gambino Crime Family, were charged in a federal indictment of participating in a criminal enterprise under the Racketeer Influenced and Corrupt Organization Act (RICO). A jury found Carbonaro and Gotti, the brother of former crime boss John Gotti, guilty of racketeering and racketeering conspiracy in violation of 18 U.S.C. § 1962 (c) and (d); and extortion in the construction industry in violation of 18 U.S.C. § 1951. See,
United States v. Matera, et al., No. 05-0392 (2nd Cir. May 30, 2007).
Peter Gotti was also convicted in a conspiracy to murder Salvatore “Sammy the Bull” Gravano under 18 U.S.C. § 1959(a)(5). Gravano, a former underboss in John Gotti’s crime family, was the key government witness who sent Gotti to the federal prison at Marion, Illinois with a life sentence. “The Bull,” a self-confessed killer of 19 men including Paul Castellano, the crime boss John Gotti overthrew, was initially in the U.S. Marshals’ Witness Protection Program. He left the program and began living an open life in Arizona.
In September 1996 Peter Gotti visited his brother, John, at the maximum security federal penitentiary in Marion. John told Peter, who had been Acting Boss of the Gotti crime family, that Gravano had to be killed.
“That’s a bill that’s gotta be paid,” John instructed his brother.
A life sentence had not taught John Gotti very much about federal electronic surveillance. Much of the Government’s case against John Gotti had been based on recorded conversations between him and his underlings. And the conversation he had with Peter during the September 1996 visit was also recorded. It was almost poetic that two years later the feared crime boss was diagnosed with throat cancer which interfered with his ability to talk. He died in a federal prison hospital in Springfield, Missouri in 2002.
Following the prison instruction from brother John, Peter Gotti met with two soldiers of the Gotti crime family: Carbonaro and Eddie Garafola. These two soldiers, and other assistants enlisted by Carbonaro, made numerous trips to Arizona, purchased a number of disguises, scouted the Arizona locations where “The Bull” could be located, and devised elaborate plans on how the “hit” would be carried out.
Either through exceptional luck or covert government involvement, “Sammy the Bull” was arrested in Arizona on narcotics charges before the John Gotti-ordered contract could be carried out. According to the Government, Carbonaro said that Peter Gotti was upset that the plan to kill Gravano did not succeed, had cost too much money, and ultimately demanded that the equipment purchased to carry out the hit, including a handgun, be given to him.
Carbonaro was convicted under 18 U.S.C. § 1959(a)(5) in connection with the murder of Frank Hydell. In the first part of 1998 the Gotti crime family picked up information that Hydell was cooperating with the Government, providing information about Carbonaro and Matera. Carbonaro reportedly told Michael DiLeonardo, a “captain” in the Family, that Hydell was a “rat” and had to be killed. On April 27, 1998 Hydell was lured to a Staten Island nightclub by Matera where he was shot and killed early that morning as he stepped outside the club.
The gangland slaying went unsolved. In 2002 DiLeonardo learned that there might be an arrested in the Hydell murder. He warned Carbonaro who, in turn, told DiLeonardo that he was the driver “on that hit” and that Matera had “set [Hydell] up.”
With respect to the construction industry extortion charge, the Government said that Peter Gotti, as Acting Boss, used the Family’s control of labor unions to extort “tens of millions” of dollars from construction companies and, in exchange, the companies were allowed to hire “non-union workers” at much lesser pay without any hassle from the unions. If a construction company balked or a union official complained, the company faced a strike and the union official was hurt. All work was then “shut down” on the project by Carbonaro and Carafola whose job was to make the rounds, keep things working smoothly, and collect the extortion kickbacks from the construction companies and contractors.
As a gratuity, the construction companies gave Gotti crime family members “cushy no show/no work” jobs. Peter Gotti’s son and Carbonaro’s nephew were given such jobs. In another recorded conversation with brother John at the Marion federal prison during a visit, Peter said he wished that his son could stay on the job but that the “Government …. they got a big thing, a big investigation.”
That “big investigation” led to the sweeping indictments of the three Gotti crime family members.
Matera read the proverbial handwriting on the wall. He pled guilty to the federal indictment charging him under 18 U.S.C. § 1962(d) charging him with racketeering conspiracy in connection with the Hydell murder and operating an illegal gambling business. He was sentenced to twenty years.
Peter Gotti and Carbonaro faced a jury trial, and received 25 and 70 years respectively.
On appeal, the three defendants raised numerous issues: the prosecution’s use of uncharged crimes and recordings of jailhouse conversations; challenges to the constitutionality of their sentences; and ineffective assistance of counsel.
The Second Circuit Court of Appeals rejected these challenges, finding that the Government had presented “extensive proof of the nature and structure of the Gambino Organized Crime Family” with testimony from none other than “Sammy the Bull” and other lesser noted crime family henchmen. These organized crime figures regaled the jury with stories of “the blood oath” to kill any member of the Family who violated the “oath of loyalty.” The Second Circuit held that, viewing the evidence in a light most favorable to the prosecution, the Government had presented sufficient evidence to convict the Peter Gotti and Carbonaro. See, Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)[cited by Matera, et al.]
During the trial, the Government introduced evidence of uncharged murders which had been committed by members of the Gotti Crime Family. Gotti and Carbonaro argued on appeal that this was prejudicial error. The Second Circuit rejected the contention, saying:
“Prior to the trial of Peter Gotti and Carbonaro, the Government gave notice of intention to offer evidence of crimes not specifically alleged in the indictment. The Government justified this evidence as proof of the existence of the Gambino Family as a criminal enterprise in which the defendants participated, which was an essential element of the various racketeering charges under the RICO statutes. With the court’s approval, over the objections of the defendants, the Government then introduced evidence of various crimes committed by Gambino Family members, including the participation of John Gotti in the murders of Louie Milito, Louie DiBono, and Robert DiBernardo. The court gave protective instructions to the effect that the jury may not conclude that a defendant is guilty of participating in criminal conduct merely from the fact that he was associated with other people who were guilty of wrongdoing.
“The defendants contend that the receipt of this evidence violated Federal Rules of Evidence 404(b) and 403. Rule 404(b), sometimes described as the ‘other crimes’ rule, provides: ‘Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.’ Fed. R. Evid. 404(b). The district court correctly ruled that this evidence did not violate Rule 404(b). The evidence was not offered to show any character trait of any defendant or that a defendant acted in accordance with such a trait. It was offered to prove an essential element of the RICO crimes charged – the existence of a criminal enterprise in which the defendants participated. The court’s conclusion that there was no violation of Rule 404(b) was consistent with numerous prior rulings of this court in which criminal acts of non-defendants, including killings, were received to prove the existence of the criminal RICO enterprise in which the defendant participated.” See, Matera, supra. See also: United States v. Miller, 12 F.3d 641, 682 (2nd Cir. 1997)[uncharged acts admissible to prove the existence of the RICO enterprise alleged in the indictment]; United States v. Thai, 29 F.3d 785, 812-13 (2nd Cir. 1994)9uncharged acts admissible as evidence of “the existence and structure of the (RICO) enterprise”].
Rule 403 of the Federal Rules of Evidence provides that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The Second Circuit said that Gotti and Carbonaro were not prejudiced because the probative value of the “other crimes” evidence (those uncharged murders) outweighed “the potential of unfair prejudice.” Matera, supra. See also: United States v. Taubman, 297 F.3d 161, 164 (2nd Cir. 2002); United States v. Dhinsa, 243 F.3d 635, 649 (2nd Cir. 2002).
The Matera court concluded that “when a defendant engages in a criminal enterprise which involves very serious crimes, there is likelihood that evidence proving the existence of the enterprise through its acts will involve a considerable degree of prejudice. Nonetheless, the evidence may be of important probative value in proving the enterprise.” Id. See also: United States v. Coonan, 938 F.2d 1553, 1561 (2nd Cir. 1991).
Citing Crawford v. Washington, 541 U.S. 36 (2004), Peter Gotti argued that the recordings of his conversations with his brother John at the Marion federal penitentiary violated the “Confrontation Clause.” These recordings contained John’s hatred of, and his desire to have revenge against, “Sammy The Bull” Gravano. Peter acknowledged on the recordings that he knew several co-conspirators and spoke about his son’s cushy job with the construction union. The defense was not allowed to cross-examine John Gotti because he had died by the time Peter faced trial.
Crawford stands for the rule that hearsay statements “of a testimonial nature” are barred from admission into evidence unless that person making those statements is available for cross-examination. The Second Circuit “judicially ducked” Peter Gotti’s Crawford claim that the Marion recordings were “testimonial” in nature by saying there was no Confrontation Clause violation because those recordings were admitted “’for purposes other than establishing the truth of the matter asserted’,” Matera, supra [quoting Crawford, 541 U.S. at 59 n.9]. Finally, the appeals court noted that the trial court instructed the jury that the statements made by John Gotti in the Marion recordings were not admitted to prove the truth of those statements “but rather to show the effect of John’s statements on Peter.” Id.
Gotti and Carbonaro claimed that their sentences violated the ex post facto principle of the Due Process Clause because the trial judge retroatively applied United States v. Booker, 543 U.S. 220 (2005). The Supreme Court in Booker, which had not been decided at the time Gott/Carbonaro were convicted but was by the time they were sentenced, preserved the authority of the judge to find facts associated with sentencing even when the jury finds none of the sentencing Guidelines factors proven beyond a reasonable doubt. Matera, supra. Relying upon Booker, the trial court found “several factors proven by a preponderance of the evidence and applied them in calculating the applicable Guidelines offense levels.” Id.
Citing its own precedent rule in United States v. Fairclough, 439 F.3d 76 (2nd Cir. 2006), the Matera court ruled that those sentences imposed after Booker was announced did not violate the ex post facto rule. Quoting Fairclough, the Second Circuit said that “’[T]here was no ex post facto problem …. Because [defendant] had fair warning that his conduct was criminal, that enhancements or upward departures could be applied to his sentence under the Guidelines based on judicial findings, and that he could be sentenced as high as the statutory maximum …’” Matera, supra; 439 F.3d at 79.
The Second Circuit then addressed the “reasonableness” of the sentences imposed on the three organized crime figures.
“The district court imposed a sentence within the Guidelines range after noting that ‘[t]he facts relevant under Section 3553(a) strongly support a lengthy sentence.’ The court considered Gotti’s age and health, noting that ‘defendant’s contention that he is no longer a threat to society because of his age and medical conditions is belied by the trial testimony establishing that he, like the other leaders of the Gambino family, need only to direct subordinates to commit the criminal acts from which he profited.’ As for Gotti’s undischarged sentence, the district court ruled that ‘Section 3553(a), especially the goals of punishment and deterrence, favor a lengthy sentence. . . . The defendant’s conduct as part of the shipping industry extortion was distinct from his construction industry activities and the plan to murder Gravano.’ We find nothing unreasonable in the sentence.” Matera, supra.
With respect to Carbonaro’s claim that the district court acted unreasonably when it imposed consecutive sentences and should have exercised its discretion under Booker to impose a lower sentence because the sentences were for “similar conduct,” the Second Circuit held:
“Carbonaro argues that the district court should have exercised its discretion under Booker to impose a lower sentence because the individual sentences were for similar conduct and thus should not have run consecutively. The district court considered the § 3553(a) factors, finding that ‘[t]he defendant has repeatedly shown his willingness to murder other human beings as part of his membership in an ongoing and widespread criminal enterprise, and his criminal history unmistakably demonstrates that he is unlikely to lead a law-abiding life if released from custody. Only the maximum penalty that the law permits is sufficient in this case.’ The district court did not act unreasonably in imposing a sentence within the Guidelines range.” Matera, supra.
With respect to Matera’s claim that the district court should have made his sentence concurrent with a sentence he was already serving, the Second Circuit held:
“ … Matera argued at his sentencing proceeding that the court should consider that since going to jail on the previous sentence he had made an effort to change his life. At the time of his sentencing hearing, Matera had 16 months remaining from a previously imposed sentence in the Eastern District of New York. The district court had discretion to impose a concurrent, partially concurrent, or consecutive sentence. See 18 U.S.C. § 3584(a) (‘if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively’); U.S.S.G. § 5G1.3(c) (‘the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense’).The district court found that despite Matera’s claim of good conduct while in prison, a consecutive sentence best reflected the seriousness of his crime. In view of our conclusion that there was no abuse of discretion, we need not rule on the Government’s contention that in his plea agreement Matera waived the right to raise this claim on appeal.” Matera, supra.
The last claim considered, and rejected, by the Second Circuit was Matera’s claim that the trial court erred “in failing to make an inquiry as to any potential conflict of interest between Matera and his then-counsel who subsequently represented another person who was suspected of participating in the conspiracy to murder Hydell. On June 15, 2004, Jeffrey Lichtman, Esq. replaced Matera’s prior counsel and represented Matera when he pled guilty on August 31, 2004, and at his sentencing on October 29, 2004. On September 20, 2004, after Matera had pled guilty but before his sentencing, Lichtman was appointed by the United States District Court for the Eastern District of New York to represent one Thomas Dono in criminal proceedings. Lichtman then represented Dono in a RICO conspiracy charge unrelated to the conspiracy to murder Hydell.”
Matera argued that the trial court under Cuyler v. Sullivan, 446 U.S. 335 (1980) was required to make an inquiry as to any potential conflict of interest. Id., at 347. The Second Circuit rejected the claim, saying: “The judge, however, had no notice of the appointment of Matera’s counsel in another court to represent Dono, much less of the fact that Dono was suspected of complicity in the Hydell murder. ‘Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry’…. The court had no reason to make such an inquiry.” Matera, supra [citing Cuyler, 446 U.S. at 347].
The Second Circuit concluded that “to overturn his conviction on the basis of his attorney’s conflict of interest resulting in ineffective assistance of counsel, Matera must at the very least show some possibility of prejudice he suffered by reason of the conflict… Matera cannot. Matera had already pleaded guilty before the potential conflict arose and in his plea agreement he had already stipulated that he would receive a sentence of twenty years imprisonment, which was the sentence he received. Matera has shown no real possibility that any conflict of his counsel might have adversely affected the representation.” Id. See also: United States v. Kliti, 156 F.3d 150, 157 (2nd Cir. 1998); Tate v. Wood, 963 F.2d 20, 26 (2nd Cir. 1992).
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