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United States V. Salerno, 868 F.2D 524 (2D Cir 1989)

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United States V. Salerno, 868 F.2D 524 (2D Cir 1989) Page 1 868 F.2d 524, 27 Fed. R. Evid. Serv. 868 (Cite as: 868 F.2d 524) Cases (Formerly 165k25.1, 165k25 Extortion and United States Court of Appeals, Threats) Second Circuit. UNITED STATES of America, Appellee, Extortion 164T 22 v. Anthony SALERNO, Carmine Persico, Gennaro 164T Extortion Langella, Anthony Corallo, Salvatore Santoro, Ral- 164Tk18 Federal Offenses ph Scopo, Christopher Furnari and Anthony Indel- 164Tk22 k. Threat or duress. Most Cited icato, Defendants–Appellants. Cases (Formerly 165k25.1, 165k25 Extortion and Nos. 91–106, Dockets 87–1075 to 87–1078, Threats) 87–1082 to 87–1085 and 87–1208 to 87–1215. Argued Sept. 9, 1987. Extortion 164T 26 Decided Jan. 31, 1989. 164T Extortion Defendants were convicted in the United States 164Tk26 k. Attempts. Most Cited Cases District Court for the Southern District of New (Formerly 165k25.1, 165k25 Extortion and York, Richard Owen, J., on Racketeer Influenced Threats) and Corrupt Organizations Act violations and other In prosecution for extortion and attempted ex- charges. One defendant appealed and limited appeal tortion, it is not necessary to prove victims' actual to two issues. The Court of Appeals, 865 F.2d fear of retaliation, but only an attempt to instill 1370, entered an en banc opinion and remanded. fear; moreover, Government need not prove attempt Appeal was then taken by all defendants. The Court to instill fear of violence but need only prove at- of Appeals, Mahoney, Circuit Judge, held that: (1) tempt to instill fear of economic harm. 18 U.S.C.A. evidence was sufficient to sustain extortion and at- § 1951(a). tempted extortion convictions; (2) evidence was [2] Extortion 164T 39(2) sufficient to sustain loan sharking conspiracy con- viction and murder convictions; and (3) although 164T Extortion RICO conspiracy convictions against one defendant 164Tk35 Evidence were not barred by limitations, substantive RICO 164Tk39 Weight and Sufficiency convictions were barred by limitations. 164Tk39(2) k. Federal offenses. Most Cited Cases Reversed in part and affirmed in part. (Formerly 165k32 Extortion and Threats) Bright, Senior Circuit Judge, sitting by desig- Evidence was sufficient to sustain defendants' nation, filed a concurring and dissenting opinion. convictions for extortion or attempted extortion; there was evidence that concrete construction com- West Headnotes panies were allegedly coerced into paying crime or- ganization two percent of any contract over $2 mil- [1] Extortion 164T 20 lion in exchange for which organization “guaranteed” labor peace enforceable primarily 164T Extortion through its control over a union of which one de- 164Tk18 Federal Offenses fendant was president and business manager, and 164Tk20 k. Intent; knowledge. Most Cited there was evidence that nonpayment of two percent © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 868 F.2d 524, 27 Fed. R. Evid. Serv. 868 (Cite as: 868 F.2d 524) tribute would result in preclusion from or dimin- Cited Cases ished opportunity for some existing or potential (Formerly 91k47(3)) economic benefit and that scheme involved at least Evidence was sufficient to sustain convictions an attempt to instill fear. 18 U.S.C.A. § 1951(a). of two defendants for loan sharking conspiracy; jury could reasonably have determined from evid- [3] Extortion 164T 39(2) ence that object of defendants' intercession in a “turf” dispute concerning loan sharking activities 164T Extortion was to facilitate loan sharking activities and make 164Tk35 Evidence them succeed. 18 U.S.C.A. § 892. 164Tk39 Weight and Sufficiency 164Tk39(2) k. Federal offenses. Most [5] Racketeer Influenced and Corrupt Organiza- Cited Cases tions 319H 49 (Formerly 165k32 Extortion and Threats) 319H Racketeer Influenced and Corrupt Organiza- Labor and Employment 231H 3283 tions 319HI Federal Regulation 231H Labor and Employment 319HI(A) In General 231HXX Offenses and Penalties 319Hk49 k. Nexus between enterprise and 231HXX(B) Prosecutions acts. Most Cited Cases 231Hk3283 k. Weight and sufficiency of (Formerly 83k82.70) evidence. Most Cited Cases Requirement of connection to Racketeer Influ- (Formerly 232Ak1052.2 Labor Relations) enced and Corrupt Organizations Act enterprise is Evidence was sufficient to establish defendant's satisfied if evidence is sufficient to establish either involvement in crime organization and was there- that defendant is enabled to commit predicate of- fore sufficient to convict him on extortion and labor fenses solely by virtue of his position in enterprise bribery charges; there was evidence that crime or- or involvement in or control over affairs of enter- ganization entered into scheme according to which prise or that predicate offenses are related to activ- concrete construction companies were coerced into ities of that enterprise. 18 U.S.C.A. § 1961 et seq. paying organization two percent of any contract over $2 million dollars in exchange for which or- [6] Racketeer Influenced and Corrupt Organiza- ganization “guaranteed” labor peace, and defendant tions 319H 95 was a member of that organization and specifically discussed disputes concerning payments from con- 319H Racketeer Influenced and Corrupt Organiza- crete manufacturing companies. 18 U.S.C.A. § tions 1951(a); Labor Management Relations Act, 1947, § 319HI Federal Regulation 302(b)(1), 29 U.S.C.A. § 186(b)(1). 319HI(C) Criminal Remedies and Proceed- ings [4] Conspiracy 91 47(3.1) 319Hk92 Evidence 319Hk95 k. Weight and sufficiency. 91 Conspiracy Most Cited Cases 91II Criminal Responsibility (Formerly 83k82.74) 91II(B) Prosecution There was sufficient evidence of nexus 91k44 Evidence between crime organization and murders to sustain 91k47 Weight and Sufficiency Racketeer Influenced and Corrupt Organizations 91k47(3) Particular Conspiracies Act convictions; there was evidence that one 91k47(3.1) k. In general. Most murder was related to organization's function of © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 868 F.2d 524, 27 Fed. R. Evid. Serv. 868 (Cite as: 868 F.2d 524) resolving leadership disputes within a crime family Common Purpose and evidence of involvement of organization in oth- 110k423(3) k. Character of acts or de- er murders. 18 U.S.C.A. § 1962(c). clarations. Most Cited Cases Testimony concerning statements made by de- [7] Criminal Law 110 150 fendant to witness while defendant was a fugitive in hiding at witness' house was admissible as state- 110 Criminal Law ment of coconspirator; statement regarded activities 110X Limitation of Prosecutions of Racketeer Influenced and Corrupt Organizations 110k148 Commencement of Period of Limit- Act enterprise and various roles of defendants in it ation and was in furtherance of enterprise. Fed.Rules 110k150 k. Continuing offenses. Most Evid.Rule 801(d)(2)(E), 28 U.S.C.A.; 18 U.S.C.A. Cited Cases § 1961 et seq. Racketeer Influenced and Corrupt Organiza- tions Act conspiracy offense is complete, commen- [10] Criminal Law 110 423(3) cing running of five-year statute of limitations, only when purposes of conspiracy have either been ac- 110 Criminal Law complished or abandoned, and substantive RICO 110XVII Evidence charge is barred by limitations as to any defendant 110XVII(O) Acts and Declarations of Con- unless that defendant committed predicate act with- spirators and Codefendants in five-year limitations period. 18 U.S.C.A. §§ 110k423 Furtherance or Execution of 1962(d), 3282. Common Purpose 110k423(3) k. Character of acts or de- [8] Criminal Law 110 150 clarations. Most Cited Cases Trial testimony and recorded conversations ad- 110 Criminal Law mitted in prosecution for Racketeer Influenced and 110X Limitation of Prosecutions Corrupt Organizations Act conspiracy and other 110k148 Commencement of Period of Limit- crimes did not consist of mere “idle chatter” or ation purely narrative descriptions of past events but, 110k150 k. Continuing offenses. Most rather, consisted of conversations in furtherance of Cited Cases conspiracy and were thus admissible as statements There was sufficient evidence that defendant of coconspirators; recorded conversations included committed predicate act within five-year Racketeer comments about history and rules of crime organiz- Influenced and Corrupt Organizations Act limita- ation and discussion of identities and qualifications tions period, and thus, RICO conspiracy convic- of various candidates for membership in crime or- tions were not barred by limitations period; ganization. Fed.Rules Evid.Rule 801(d)(2)(E), 28 however, substantive RICO counts occurred outside U.S.C.A.; 18 U.S.C.A. § 1962(d). limitations period and were barred. 18 U.S.C.A. § 3282. [11] Criminal Law 110 423(3) [9] Criminal Law 110 423(3) 110 Criminal Law 110XVII Evidence 110 Criminal Law 110XVII(O) Acts and Declarations of Con- 110XVII Evidence spirators and Codefendants 110XVII(O) Acts and Declarations of Con- 110k423 Furtherance or Execution of spirators and Codefendants Common Purpose 110k423 Furtherance or Execution of 110k423(3) k. Character of acts or de- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 868 F.2d 524, 27 Fed. R. Evid. Serv. 868 (Cite as: 868 F.2d 524) clarations. Most Cited Cases charged RICO offenses would entail considerable Recorded conversation of defendant's driver evidence relating to those families, even though in- and member of crime family in which he discussed dividual families were separate RICO enterprises how to control a labor union furthered Racketeer from crime organization. 18 U.S.C.A. §§ 1961 et Influenced and Corrupt Organizations Act enter- seq.,1962(d). prise's purpose of coordinating joint ventures among crime families and was admissible to show [14] Criminal Law 110 338(7) background of interfamily relationships and devel- 110 Criminal Law opment of interfamily trust in area of union control. 110XVII Evidence Fed.Rules Evid.Rule 404(b), 28 U.S.C.A.; 18 110XVII(D) Facts in Issue and Relevance U.S.C.A. § 1961 et seq. 110k338 Relevancy in General [12] Criminal Law 110 673(2) 110k338(7) k.
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