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United States V. Ruggiero, 934 F.2D

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United States V. Ruggiero, 934 F.2D Page 1 934 F.2d 440, 33 Fed. R. Evid. Serv. 1516 (Cite as: 934 F.2d 440) 282k170 Weight and Sufficiency 282k170(6) k. Offenses relating to evid- United States Court of Appeals, ence. Most Cited Cases Second Circuit. (Formerly 282k16) UNITED STATES of America, Appellee, Conviction for endeavoring to obstruct admin- v. istration of justice was sufficiently supported by Angelo RUGGIERO, Gene Gotti, John Carneglia, evidence that defendants were aware of grand jury Michael Coiro, Joseph Guagliano, Anthony Mo- investigation at time they concealed incriminating scatiello, Oscar Ansourian, Gerlando Sciascia, Ed- documents, even if some documents involved ward Lino, Mark Reiter, William Robert Cestaro, lacked investigatory value. 18 U.S.C.A. § 1503. Salvatore Greco, Joseph Lo Presti, Vincent Lore, Anthony Gurino, and Caesar Gurino, Defendants, [2] Obstructing Justice 282 132 Anthony Gurino and Caesar Gurino, Defend- ants–Appellants. 282 Obstructing Justice 282k128 Offenses Relating to Evidence in Gen- Nos. 633, 634, Dockets 90–1382, 90–1434. eral Argued Feb. 14, 1991. 282k132 k. Concealing or withholding evid- Decided May 30, 1991. ence. Most Cited Cases (Formerly 282k5) Defendants were convicted in the United States Materiality of evidence withheld is not element District Court for the Eastern District of New York, of offense of endeavoring to obstruct justice. 18 Joseph M. McLaughlin, J., of conspiring and en- U.S.C.A. § 1503. deavoring to obstruct justice. On appeal, the Court of Appeals, Winter, Circuit Judge, held that: (1) [3] Conspiracy 91 47(13) evidence was sufficient to support convictions, and (2) district court did not abuse its discretion in cur- 91 Conspiracy tailing certain cross-examination. 91II Criminal Responsibility 91II(B) Prosecution Affirmed. 91k44 Evidence 91k47 Weight and Sufficiency West Headnotes 91k47(3) Particular Conspiracies 91k47(13) k. Obstructing [1] Obstructing Justice 282 132 justice, bribery, and perjury. Most Cited Cases 282 Obstructing Justice Conviction for conspiracy to obstruct grand 282k128 Offenses Relating to Evidence in Gen- jury investigation was sufficiently supported by re- eral corded conversations between defendants and oth- 282k132 k. Concealing or withholding evid- ers, after they knew of grand jury investigation into ence. Most Cited Cases assets of deceased drug trafficker, in which they (Formerly 282k16) discussed plans to cover up their links to trafficker. Obstructing Justice 282 170(6) [4] Grand Jury 193 36.8 282 Obstructing Justice 193 Grand Jury 282k166 Evidence 193k36 Witnesses and Evidence 193k36.8 k. Scope of proof; admissibility. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 934 F.2d 440, 33 Fed. R. Evid. Serv. 1516 (Cite as: 934 F.2d 440) Most Cited Cases 110k338(4) k. Evidence as to acts, It is permissible for Government to use hearsay transactions, and occurrences to which accused is evidence in its presentation to grand jury, so long as not a party. Most Cited Cases Government does not mislead grand jury into think- Evidence of third parties' narcotics activities ing it is receiving firsthand testimony when it is in was admissible in prosecution of defendants for fact receiving hearsay, and so long as there is not conspiring and endeavoring to obstruct grand jury high probability that defendant would not have investigation into third parties' activities. been indicted had only nonhearsay evidence been used. [8] Witnesses 410 268(10) [5] Grand Jury 193 36.8 410 Witnesses 410III Examination 193 Grand Jury 410III(B) Cross-Examination 193k36 Witnesses and Evidence 410k268 Scope and Extent of Cross- 193k36.8 k. Scope of proof; admissibility. Examination in General Most Cited Cases 410k268(10) k. Particular facts in- Presentation of oral summaries of surveillance cluded in general statement by witness. Most Cited recordings did not render grand jury indictments in- Cases valid where grand jurors were fully informed of Trial court did not abuse its discretion in disal- nature of evidence they were considering, availabil- lowing cross-examination question requesting of- ity of primary sources of evidence, and their inde- ficer to recite every document in file turned over by pendent fact-finding role. defendants charged with obstructing justice, after officer had identified the general nature of the doc- [6] Witnesses 410 288(2) uments on direct examination; officer's ability to re- member each document after six years was irrelev- 410 Witnesses ant, in that Government had already introduced 410III Examination various documents produced and defendant could 410III(C) Re-Examination have introduced any documents he thought Govern- 410k285 Redirect Examination ment had omitted. 410k288 New Matter on Cross- Examination [9] Criminal Law 110 338(4) 410k288(2) k. Particular subjects of inquiry. Most Cited Cases 110 Criminal Law Redirect testimony of FBI agent who took pho- 110XVII Evidence tographs at drug trafficker's funeral, to effect that 110XVII(D) Facts in Issue and Relevance many individuals in attendance had been arrested 110k338 Relevancy in General for drug offenses and other violations, was warran- 110k338(4) k. Evidence as to acts, ted after defense counsel on cross-examination had transactions, and occurrences to which accused is questioned propriety of FBI's presence at funeral. not a party. Most Cited Cases [7] Criminal Law 110 338(4) Obstructing Justice 282 169 110 Criminal Law 282 Obstructing Justice 110XVII Evidence 282k166 Evidence 110XVII(D) Facts in Issue and Relevance 282k169 k. Admissibility. Most Cited Cases 110k338 Relevancy in General (Formerly 282k15) © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 934 F.2d 440, 33 Fed. R. Evid. Serv. 1516 (Cite as: 934 F.2d 440) Exclusion of evidence disclosed to Government Before PIERCE, WINTER and WALKER, Circuit by third parties was not abuse of discretion absent Judges. showing that obstruction of justice defendants, ac- cused of concealing information from grand jury, WINTER, Circuit Judge: were aware of such disclosures. Two brothers, Anthony and Caesar Gurino, ap- [10] Criminal Law 110 770(2) peal from their convictions for conspiring and en- deavoring to obstruct a grand jury investigation into 110 Criminal Law the former whereabouts and accumulated assets of 110XX Trial Salvatore Ruggiero, a deceased narcotics fugitive. 110XX(G) Instructions: Necessity, Requis- They raise a host of objections spanning from the ites, and Sufficiency evidence before the grand jury to the petit jury in- 110k770 Issues and Theories of Case in structions, all of which we reject. General 110k770(2) k. Necessity of instruc- BACKGROUND tions. Most Cited Cases A. The Properties Although defendant is entitled to have jury On May 6, 1982, Salvatore Ruggiero and his charge reflecting his theory of defense, that theory wife, Stephanie, were killed when their private jet must have valid basis in law and fact. crashed in the Atlantic Ocean near Savannah, Geor- gia. Salvatore had been a fugitive since the [11] Obstructing Justice 282 132 mid–1970's, having been charged in three federal indictments with extortion, tax evasion, and traf- 282 Obstructing Justice ficking in heroin. When Salvatore went into hiding, 282k128 Offenses Relating to Evidence in Gen- several of his associates, including appellants, eral began to assist Salvatore in concealing his where- 282k132 k. Concealing or withholding evid- abouts by assuming legal ownership of certain of ence. Most Cited Cases his real estate investments. Three properties are the (Formerly 282k5) subject of this action. Although defendant must have documents which were allegedly withheld in his possession in 1. The Pennsylvania Property order to be convicted of obstruction, constructive Hoping to buy a vacation home near the Po- possession is sufficient; moreover, destroying docu- cono mountains in Pennsylvania, Salvatore contac- ments in anticipation of subpoena can constitute ob- ted a Pennsylvania realtor, John Cowley, in struction. 18 U.S.C.A. § 1503. November 1981. Cowley located suitable property and Salvatore negotiated the terms with the *441 Susan C. Wolfe, New York City (Mark A. seller—a $100,000 contract price supplemented by Summers, John L. Pollok, Hoffman & Pollok*442 , an under-the-table cash payment of $60,000. To New York City, of counsel), for defendants-appel- conceal his identity, Salvatore executed the pur- lants. chase through LVC Corporation, Inc. (“LVC”), in- corporated in the name of Caesar Gurino. Caesar Leopold Laufer, Asst. U.S. Atty. Brooklyn, N.Y. ( signed the Commonwealth of Pennsylvania Articles Andrew J. Maloney, U.S. Atty. for the Eastern Dis- of Incorporation and Registry Statement for LVC, trict of New York, Matthew E. Fishbein, David C. as well as the contract of sale for the home. Other James, Michael G. Considine, Asst. U.S. Attys., documents, including the signature card and corpor- Brooklyn, N.Y., of counsel), for appellee. ate resolution necessary to open a bank account in the name of LVC and five checks drawn on that ac- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 934 F.2d 440, 33 Fed. R. Evid. Serv. 1516 (Cite as: 934 F.2d 440) count used to complete the closing, were signed by ledging his demand and the other informing him Salvatore in Caesar's name. that the $25,000 would be placed in escrow until the dispute was resolved. The matter of the $25,000 Salvatore arranged for Cowley to manage the eventually was litigated, and in June 1982, after property, handle the mail, and pay all bills, for Salvatore's death, Lipsman continued to negotiate which Salvatore reimbursed him in cash. Cowley with the builder for return of the downpayment. kept the bills and other mail addressed to LVC in a special file that also contained LVC's cancelled 3. The Queens Property checks and bank statements. The Articles of Incor- In 1975, Import Construction Company poration and Registry Statement were held by Cow- (“Import”), of which Anthony Gurino was presid- ley's brother, attorney Michael Cowley, who had ent, held title to two adjoining parcels of land in prepared them in connection with the incorporation Queens, New York on behalf of Salvatore Rug- of LVC.
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