Opinion
S8 02 Cr. 743 (RCC).
May 19, 2005
MEMORANDUM ORDER
Peter Gotti and Thomas Carbonaro ("Defendants") were convicted following a jury trial on multiple counts of the Eighth Superseding Indictment in this case. Gotti now moves for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and for a new trial in the interest of justice under Federal Rule of Criminal Procedure 33. Carbonaro also moves for a judgment of acquittal. For the following reasons, their motions are DENIED.
I. BACKGROUND
Four cooperating witnesses testified against Defendants at trial. In addition, the Government presented the testimony of an expert on organized crime and three Federal Bureau of Investigation ("FBI") agents or former agents. The defense consisted largely of attacks on the cooperating witnesses' credibility, all of whom have pled guilty to a variety of criminal acts and seek reduced sentences in exchange for their testimony. Carbonaro called one witness regarding his medical condition at the time of some of the charged offenses.
After hearing approximately four weeks of testimony, the jury returned a verdict on December 22, 2004. Gotti was convicted of participating in the affairs of an enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., through conspiring to murder Salvatore Gravano and conspiring to commit extortion in the construction industry. Gotti was also convicted of conspiring to violate RICO, conspiring to murder Gravano in aid of racketeering, and conspiring to commit extortion in the construction industry. Carbonaro was convicted under RICO based on the racketeering acts of: (1) conspiring to murder Edward Garofalo, (2) conspiring to murder Frank Hydell, (3) conspiring to murder Gravano, (4) conspiring to commit extortion in the construction industry, (5) conspiring to collect extensions of credit through extortionate means from 1990 through 1999, and (6) conspiring to collect extensions of credit through extortionate means in 2002. He was also convicted of RICO conspiracy, conspiring to murder Hydell and Gravano in aid of racketeering, and conspiring to commit extortion-industry extortion. Defendants then made timely motions for judgments of acquittal and Gotti moved for a new trial.
After the jury returned its verdict, the Court asked the jurors to deliberate on certain sentencing allegations included in the indictment. The jury returned their verdict as to the sentencing allegations on December 23, 2004, and found that the Government had only proved one of the allegations beyond a reasonable doubt.
II. DISCUSSION
Defendants argue that the evidence against them is insufficient to support their convictions. To succeed on the claim that this entitles them to a judgment of acquittal under Rule 29, they bear a heavy burden. See United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003); United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002). They "must show that no rational trier of fact, viewing the evidence in the light most favorable to the government, could have found [them] guilty beyond a reasonable doubt of the essential elements of the crimes charged." Desena, 287 F.3d at 176. And the jury's assessment of witnesses' credibility must go undisturbed. See United States v. James, 239 F.3d 120, 124 (2d Cir. 2000).
Gotti also seeks a new trial in the interest of justice. Rule 33 provides, "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). On a motion for a new trial, the Court may weigh the evidence and judge witnesses' credibility. United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). However, "because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witnesses' credibility, `[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment.'"United States v. Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001) (quoting Sanchez, 969 F.2d at 1414). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Id. at 134. In other words, "there must be a real concern that an innocent person may have been convicted." Id. (internal quotation marks and citation omitted).
A. Gotti's Motions for Judgment of Acquittal and a New Trial
Gotti argues that there was no physical evidence linking him to the crimes charged and that the cooperating witnesses' allegations were at least as consistent with innocence as with proof of guilt. He also maintains that he is entitled to a new trial in the interest of justice because the Court improperly limited his cross-examination, admonished his attorney in the presence of the jury, and exhibited bias in favor of the Government. The Court disagrees with these assessments.
Gotti's argument for a judgment of acquittal fails. There is no requirement that the Government prove a defendant's guilty through physical evidence. See, e.g., United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) ("[T]he jury's verdict may be based entirely on circumstantial evidence.");United States v. Libera, 989 F.2d 596, 601 (2d Cir. 1993) (same). The fact that the verdict here was based mainly on the testimony of cooperating witnesses, even if uncorroborated by physical evidence, is not a ground for a judgment of acquittal.See United States v. Parker, 903 F.2d 91, 96 (2d Cir. 1990). As the Second Circuit explained in Parker:
The fact that a conviction may be supported only by the uncorroborated testimony of a single accomplice is not a basis for reversal if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. Any lack of corroboration goes merely to the weight of the evidence, not to its sufficiency.Id. The lack of physical evidence to corroborate the testimony does not support Gotti's Rule 29 argument. Indeed, here, unlike in Parker, which addressed a single accomplice's uncorroborated testimony, the cooperating witnesses often corroborated each other in their testimony.
Gotti argues that the cooperating witnesses' testimony was insufficiently credible. (See Gotti's Post-Verdict Mot. at 5 ("[The jurors] were presented only with the testimony of motivated cooperating witnesses and professionally biased government agents.").) But a court cannot grant a judgment of acquittal merely because it disagrees with the jury's decisions on witness credibility. See, e.g., James, 239 F.3d at 124.United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000);United States v. Sureff, 15 F.3d 225, 228 (2d Cir. 1994). Gotti had his chance to make this credibility argument to the jury, and he did so. That the jury did not agree with him is not a reason to grant a new trial. See Parker, 903 F.3d at 97. Accordingly, the lack of credibility of the cooperating witnesses is barren ground for Gotti's motion.
Gotti's contention that the Court must order a judgment of acquittal because the uncorroborated testimony was at least as consistent with guilt as innocence is also without merit. Although the evidence must be sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt, the Court must leave to the jury the task of choosing between competing inferences. United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001). To the extent that Gotti argues that the witnesses' testimony could as easily been disbelieved as believed, his argument fails as a matter of law. To the extent he argues that the evidence as a whole is equally indicative of his innocence as of his guilt, he is wrong as a matter of fact. Gotti put on no defense of his own and relied on attacking the Government witnesses' credibility on cross-examination. The evidence against him was strong — the cooperating witnesses testified as to Gotti's membership and rank in the Gambino Family during the relevant periods of time under the indictment, his participation in the plan to kill Salvatore Gravano, and in the Gambino Family's construction-industry extortion.
The evidence established Gotti's guilt as to the conspiracy to murder Gravano. The recordings of John Gotti, Sr., made while he was incarcerated, established a motive for his brother Peter's desire to murder Gravano, as did the testimony regarding the treatment of informants in the Gambino Family and La Cosa Nostra generally. Cooperating witness Salvatore Mangiavillano testified that he understood Peter Gotti had ordered Gravano's murder and the reason for the order. Both Mangiavillano and Michael DiLeonardo testified that Peter Gotti had complained about how much money he had spent on the failed plot to kill Gravano.
Similarly, the evidence was not in equipoise on the construction-industry extortion charges. DiLeonardo and cooperating witness Frank Fappiano testified that Peter Gotti was a member of the Gambino Family panel that oversaw the Family's construction-industry operations. The Government introduced audio recordings of John Gotti, Sr., in which John Gotti stated that he sent his brother Peter to pick up $10,000 every month or every other month from an individual that DiLeonardo testified was a businessman in the construction industry. Fappiano also testified that he delivered profits from the extortion to Peter Gotti. DiLeonardo corroborated the testimony that Peter Gotti received funds from the construction-industry extortion. Thus, the evidence against Gotti was not as indicative of innocence as of guilt.
Nor is Gotti entitled to a new trial. His argument that the Court improperly limited areas of cross-examination must be rejected. The Court prevented Gotti's counsel from cross-examining DiLeonardo on an extramarital affair that he allegedly had with a daughter of another Gambino Family member, breaking a rule of La Cosa Nostra and impregnating the woman in the process. The Court also precluded a question as to whether DiLeonardo ever abused women. Such questioning was properly prohibited under Federal Rules of Evidence 403 and 611. See United States v. Devery, 935 F. Supp. 393, 406 (S.D.N.Y. 1996) (precluding cross-examination of witness under Rule 403 as to allegations that he raped his stepdaughter because of the inflammatory nature of the evidence and because the prejudice resulting from it substantially outweighed its probative value on the witness's credibility; noting the trial court's discretionary control over cross-examination under Rule 611). Gotti had ample opportunity to cross-examine DiLeonardo as to his credibility, and he took advantage of that opportunity. Gotti's cross-examination of the witness took place over three trial days and consumes close to 360 pages of the trial transcript. (See Trial Tr. of 12/8/04-12/10/04 at 2665:4-3024:11.) Areas of cross-examination regarding credibility included DiLeonardo's motive to lie on the stand, his rehearsal of his testimony with counsel for the Government, and his prior acts of money laundering, fraud, conspiracy to murder, assault, false statements to law enforcement, larceny, loansharking, and extortion.
The meager contribution of the affair and potential abuse of women to the jury's understanding of DiLeonardo's credibility was well outweighed by the prejudice and salaciousness of the proposed testimony. If the jury decided to credit DiLeonardo's testimony after learning that he had conspired to murder, assaulted, stolen, and lied on many occasions to law enforcement, it is highly doubtful that it would have disregarded his testimony because he allegedly cheated on his wife, broke La Cosa Nostra rules, or abused women. Cf. United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990) ("A trial judge abuses his discretion in curtailing cross-examination of a government witness when the curtailment denies the jury sufficient information to make a discriminating appraisal of the particular witness's possible motives for testifying falsely in favor of the government." (internal quotation marks and citations omitted)). The testimony was therefore properly excluded, and the exclusion worked little prejudice on Gotti.
Gotti's other example of improper preclusion during cross-examination are similarly unavailing. He maintains that the Court erroneously precluded cross-examination of FBI agent Theodore Otto on his alleged pattern of embellishing events in investigative reports, again because such cross-examination was probative of Otto's credibility. Gotti's counsel sought to question Otto about an FBI report he wrote 11 or 12 years prior to the trial in this matter dealing with investigation into what Otto described as "Albanian organized crime." (Trial Tr. of 12/6/04 at 2221:2-4.) Otto allegedly volunteered in the report that the make of a specific automobile was a Buick as opposed to some other type of car. At a sidebar conference, Gotti's counsel argued that the testimony would establish that Otto put information into FBI reports that were based on his own assumptions rather than witnesses' statements. The Court precluded the testimony.
First, the line of cross-examination was properly precluded. Evidence that Otto may have assumed that a car was a Buick when he had not received such information from a witness was not probative of his character for truthfulness, a decision within the Court's discretion to make. See Fed.R.Evid. 608(b) ("Specific instances of the conduct of a witness, for the purpose of attacking the witness' character for truthfulness. . . . may, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination. . . ." (emphasis added)). And second, even if the ruling were incorrect, it would provide no basis for a new trial by itself or in combination with the other perceived errors. Gotti cannot contend that an innocent person may have been convicted because the jury did not hear that Otto might have identified a car as a blue Buick, for example, when in reality a witness that he interviewed merely had said the car was blue.Cf. Ferguson, 246 F.3d at 134. The interest of justice does not require a new trial on the basis of the evidentiary rulings that Gotti cites.
The Court also did not manifest a bias against Gotti to the jury. "[T]he trial court may actively participate and give its own impressions of the evidence or question witnesses, as an aid to the jury, so long as it does not step across the line and become an advocate for one side." United States v. Filani, 74 F.3d 378, 385 (2d Cir. 1996). "The questioning of witnesses by a trial judge, if for a proper purpose such as clarifying ambiguities, correcting misstatements, or obtaining information needed to make rulings, is well within the court's active responsibility to insure that issues clearly are presented to the jury." United States v. Victoria, 837 F.2d 50, 54 (2d Cir. 1988) (internal quotation marks omitted). The Court did not cross the line here.
The examples of comments and questions by the Court that Gotti presents were made merely to clarify ambiguities in testimony or were directed at Gotti's counsel for disregarding the Court's orders and evidentiary rulings. For example, the Court reprimanded Gotti's attorney for preventing witnesses from completing their answers. Such reprimands in the presence of the jury are not grounds for a new trial because they concern not the merits of a case, but the way in which a case is being handled by a lawyer. See United States v. DiTommaso, 817 F.2d 201, 220 (2d Cir. 1987). Similarly, the Court permitted DiLeonardo to complete an answer to counsel for Gotti's question whether DiLeonardo knew that a Gambino Family associate named Craig DePalma, who was incarcerated and whom DiLeonardo suspected might cooperate with the Government against him, "was found hanging in his [prison] cell and never testified against [DiLeonardo]." (Trial Tr. of 12/10/04 at 2917:17-18.) The Court permitted DiLeonardo to clarify that he had nothing to do with DePalma's death, which was left ambiguous by defense counsel's question. The Court's questioning and evidentiary rulings were therefore proper.
The Court cannot agree that it showed a bias by not similarly reprimanding counsel for the Government, as Gotti contends. The Court reprimanded defense counsel on many occasions for cutting off witnesses' answers to questions and arguing with witnesses during cross-examination. The Government only cross-examined one witness during the trial and had far fewer opportunities to commit the same transgressions.
The Court also instructed the jury that its comments and questions to lawyers and witnesses were not to be taken as indicative of the Court's belief that Defendants were guilty or innocent. The Court instructed the jury:
[A]t times I may have admonished a witness or lawyer or directed a witness to be responsive to questions or to keep his or her voice up. At times I may have questioned a witness myself or made comments to a lawyer. Any questions that I asked or instructions or comments that I gave were intended only to clarify the presentation of evidence and to bring out something that I thought was unclear. You should draw no inference or conclusion of any kind, favorable or unfavorable, with respect to any witness or any party in the case, by reason of any comment, question or instruction of mine. Nor should you infer that I have any views as to the credibility of any witness, as to the weight [of] the evidence or as to how you should decide any issue that is before you. That is entirely your role.
(Jury Charge, Trial Tr. of 12/17/04 at 3636:2-15.) This instruction diminished the possibility that the jury mistook the Court's questioning and comments as a view on the evidence. See, e.g., United States v. McDermott, 245 F.3d 133, 139 (2d Cir. 2001); DiTommaso, 817 F.2d at 211. Gotti's motion for a new trial on the basis of the Court's conduct is therefore denied.
B. Carbonaro's Motion for Judgment of Acquittal
As explained above, Carbonaro must carry a heavy burden to obtain a judgment of acquittal. See Jackson, 335 F.3d at 180. Carbonaro, however, has not even attempted to lift. Instead, he requests that the Court examine the trial evidence and determine whether the evidence was sufficient to convict him on each count. He has pointed to no insufficiency in the evidence, and the Court has located none. The Government presented more than sufficient evidence on all of the counts, including the testimony of Carbonaro's coconspirators that the jury was entitled to credit. His motion for a judgment of acquittal is accordingly denied.
Carbonaro's counsel, who recently replaced the attorney who represented Carbonaro at trial, submitted an affidavit preserving arguments for appeal made by the trial counsel and "ask[ing] the court to review the sufficiency of the evidence in the trial record . . . and rule on whether each count of conviction was supported by sufficient admissible evidence at trial." (Nooter Aff. ¶ 4.)