Page 1 459 F.3d 296, 180 L.R.R.M. (BNA) 2199 (Cite as: 459 F.3d 296) guilty pleas to bookmaking counts was harmless; (5) court did not abuse its discretion by empaneling United States Court of Appeals, an anonymous jury and partially sequestering them; Second Circuit. and UNITED STATES of America, Ap- (6) district court did not clearly err in declining to pellee–Cross–Appellant, impose a leadership role enhancement in sentencing v. a defendant who was acting boss of New York Peter GOTTI, Defend- crime family. ant–Appellant–Cross–Appellee, Anthony Ciccone, also known as Sonny, Richard Affirmed in part; vacated and remanded in part. Bondi, Richard G. Gotti, Defendants–Appellants, Primo Cassarino, Jerome Brancato, Peter Piacenti, West Headnotes Anna Eylenkrig, Thomas Lisi, Carmine Malara, [1] Extortion 164T 33 Jerome Orsino, Frank Scollo, Vincent Nasso, An- thony Pansini, Jules R. Nasso, Salvatore Cannata, 164T Extortion Defendants. 164Tk31 Indictment or Information 164Tk33 k. Requisites and sufficiency. Most Docket Nos. 04–2746–CR(L) 04–2960–CR(XAP), Cited Cases 04–4217–CR(CON) 04–4842–CR(CON), (Formerly 165k25.1 Extortion and Threats) 04–5071–CR(CON), 06–0726–CR(CON). In evaluating an extortion count's conformity Argued: April 7, 2006. with Scheidler II —i.e., whether it adequately al- Decided: July 12, 2006. leges the “obtaining of property” for purposes of Background: Defendants were convicted in the the Hobbs Act's definition of extortion, the key in- United States District Court for the Eastern District quiry is whether the defendant is (1) alleged to have of New York, Block, J., of violating and conspiring carried out (or, in the case of attempted extortion, to violate Racketeer Influenced and Corrupt Organ- attempted to carry out) the deprivation of a property izations Act (RICO) and of committing numerous right from another, with (2) the intent to exercise, RICO predicate and substantive offenses, and they sell, transfer, or take some other analogous action appealed. with respect to that right. 18 U.S.C.A. § 1951. Holdings: The Court of Appeals, Katzmann, Cir- [2] Extortion 164T 23 cuit Judge, held that: 164T Extortion (1) intangible property qualified as extortable prop- 164Tk18 Federal Offenses erty under the Hobbs Act regardless of whether its 164Tk23 k. Money or property extorted. exercise, transfer, or sale would be legal; Most Cited Cases (2) evidence was sufficient to establish defendants' (Formerly 165k25.1 Extortion and Threats) participation in a scheme to defraud union members Intangible property qualified as extortable of the honest services of two of their elected offi- property under the Hobbs Act regardless of whether cials; its exercise, transfer, or sale would be legal. 18 (3) there was sufficient evidence to find that de- U.S.C.A. § 1951. fendants conducted “financial transactions” within the meaning of money laundering statute; [3] Extortion 164T 43 (4) Crawford error in admission of co-defendants' © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 459 F.3d 296, 180 L.R.R.M. (BNA) 2199 (Cite as: 459 F.3d 296) 164T Extortion 164Tk35 Evidence 164Tk40 Trial 164Tk39 Weight and Sufficiency 164Tk43 k. Instructions. Most Cited Cases 164Tk39(2) k. Federal offenses. Most (Formerly 165k25.1 Extortion and Threats) Cited Cases Trial court properly instructed jury that, for (Formerly 165k25.1 Extortion and Threats) Hobbs Act liability to attach, there must be a show- ing that a defendant did not merely seek to deprive Postal Service 306 49(11) the victim of the property right in question, but also 306 Postal Service sought to obtain that right for himself. 18 U.S.C.A. 306III Offenses Against Postal Laws § 1951. 306k49 Evidence [4] Criminal Law 110 1172.1(1) 306k49(8) Weight and Sufficiency 306k49(11) k. Use of mails to defraud. 110 Criminal Law Most Cited Cases 110XXIV Review (Formerly 165k25.1 Extortion and Threats) 110XXIV(Q) Harmless and Reversible Error Evidence, which established that defendant ex- 110k1172 Instructions ercised control over the actions of local union's 110k1172.1 In General president, was sufficient to support defendant's con- 110k1172.1(1) k. Instructions in viction for extorting and defrauding union and its general. Most Cited Cases members; that defendant often ultimately permitted Where a jury is repeatedly and correctly in- president to follow through on his proposed course structed, in the language of the controlling Supreme of action did not preclude conviction. 18 U.S.C.A. Court decision, on the elements required for con- §§ 1346, 1951. viction, a defendant cannot claim that instructions constituted prejudicial error. [7] Extortion 164T 39(2) [5] Telecommunications 372 1014(10) 164T Extortion 164Tk35 Evidence 372 Telecommunications 164Tk39 Weight and Sufficiency 372III Telephones 164Tk39(2) k. Federal offenses. Most 372III(I) Offenses and Prosecutions Cited Cases 372k1011 Offenses (Formerly 165k32 Extortion and Threats) 372k1014 Wire Fraud Evidence was sufficient to support defendant's 372k1014(10) k. Honest services convictions for extorting quarterly cash payments fraud. Most Cited Cases from business owners by exploiting owners' fears of Regardless of success of the scheme itself, defendant. 18 U.S.C.A. § 1951. evidence was sufficient to establish defendants' par- ticipation in a scheme to defraud union members of [8] United States 393 34 the honest services of two of their elected officials 393 United States by getting those officials to secretly act at the be- 393I Government in General hest of defendants in violation of wire fraud statute. 393k34 k. Mints, assay offices, coinage, and 18 U.S.C.A. § 1346. money. Most Cited Cases [6] Extortion 164T 39(2) Merely receiving funds can rise to the level of “conducting a transaction” within meaning of 164T Extortion money laundering statute. 18 U.S.C.A. § 1956(c)(2, © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 459 F.3d 296, 180 L.R.R.M. (BNA) 2199 (Cite as: 459 F.3d 296) 3). money. Most Cited Cases With respect to money laundering counts, evid- [9] United States 393 34 ence was sufficient to support finding that defend- ant accepted surreptitious cash payments knowing 393 United States that the deliveries of those payments had been de- 393I Government in General signed in a way that would conceal the source of 393k34 k. Mints, assay offices, coinage, and the moneys. 18 U.S.C.A. § 1956. money. Most Cited Cases Defendants' laundering of proceeds of extor- [13] Extortion 164T 39(2) tions of payments from businesses and unions that engaged in interstate commerce, and proceeds of 164T Extortion other illegal activities affected interstate commerce 164Tk35 Evidence by promoting the activities that gave rise to the re- 164Tk39 Weight and Sufficiency ceipt of the moneys in question, and therefore, there 164Tk39(2) k. Federal offenses. Most was sufficient evidence to find that defendants con- Cited Cases ducted “financial transactions” within the meaning (Formerly 165k32 Extortion and Threats) of money laundering statute. 18 U.S.C. § 1956. Evidence, which included a wiretapped conver- sation, was sufficient to establish that defendant [10] United States 393 34 conspired and attempted to force victim to resign from his job, and thus to obtain the value of his 393 United States right to compete for that job. 18 U.S.C.A. § 1951. 393I Government in General 393k34 k. Mints, assay offices, coinage, and [14] Gaming 188 62 money. Most Cited Cases Under money laundering statute, government is 188 Gaming required to link the moneys in question to specified 188III Criminal Responsibility unlawful activities, but that link can be made 188III(A) Offenses through circumstantial evidence. 18 U.S.C.A. § 188k62 k. Nature of offense of gaming. 1956. Most Cited Cases When bets are placed from New York, the [11] United States 393 34 gambling activity is illegal under New York law, regardless of whether the activity is legal in the loc- 393 United States ation to which the bets were transmitted. 393I Government in General N.Y.McKinney's Penal Law § 225.00(2). 393k34 k. Mints, assay offices, coinage, and money. Most Cited Cases [15] Gaming 188 68(.5) Government adduced evidence sufficient to prove that the moneys laundered by defendants de- 188 Gaming rived from Hobbs Act extortions of businesses and 188III Criminal Responsibility unions and illegal gambling businesses. 18 188III(A) Offenses U.S.C.A. § 1956. 188k68 Games, Sports, and Devices Pro- hibited [12] United States 393 34 188k68(.5) k. In general. Most Cited Cases 393 United States Under New York law, an “illegal gambling 393I Government in General device” is a machine that is used in an activity 393k34 k. Mints, assay offices, coinage, and © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 459 F.3d 296, 180 L.R.R.M. (BNA) 2199 (Cite as: 459 F.3d 296) where money or something else of value is staked Crawford error in admission of co-defendants' upon the outcome of a contest that depends in a ma- guilty pleas to bookmaking counts, which were ad- terial degree upon chance. McKinney's Penal Law § mitted for the purpose of showing that the book- 225.00. making business employed five or more people in order to establish illegal gambling business, was [16] Gaming 188 68(3) harmless since there was overwhelming evidence at trial that five other defendants were involved in the 188 Gaming bookmaking business. 18 U.S.C.A. § 1955(b)(1). 188III Criminal Responsibility 188III(A) Offenses [19] Telecommunications 372 1466 188k68 Games, Sports, and Devices Pro- hibited 372 Telecommunications 188k68(3) k. Slot machine. Most Cited 372X Interception or Disclosure of Electronic Cases Communications; Electronic Surveillance Joker-poker machines were “illegal gambling 372X(B) Authorization by Courts or Public devices” under New York law; customers risked Officers money upon the outcome of the games played on 372k1464 Application or Affidavit the machines and chance played a material role in 372k1466 k.