United States v. Joseph Massimino , 641 F. App'x 153 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 13-3221, 13-3263, & 13-3383
_____________
UNITED STATES OF AMERICA
v.
JOSEPH MASSIMINO, a/k/a Mousie; DAMION CANALICHIO, a/k/a
DAME; and ANTHONY STAINO, JR., a/k/a ANT,
Appellants
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-09-cr-00496-004,
2-09-00496-008, 2-09-cr-00496-001)
District Judge: Hon. Eduardo C. Robreno
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 10, 2015
______________
Before: VANASKIE, SLOVITER and RENDELL, Circuit Judges
(Filed: January 15, 2016)
___________
OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.
Appellants Joseph Massimino, Damion Canalichio, and Anthony Staino, Jr., are
reputed members of the Philadelphia La Cosa Nostra (LCN), an organized crime ring,
who were convicted of or pleaded guilty to a violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d). Over the course of a lengthy
trial, the Government presented evidence that Appellants conspired to engage in both (1)
a pattern of racketeering activity that included extortion, loansharking, and illegal
gambling, as well as (2) the collection of unlawful debt.1 Appellants now raise various
challenges to their convictions and sentences. For the following reasons, we will affirm.
I.
In January 2011, a federal grand jury in the Eastern District of Pennsylvania
returned a Third Superseding Indictment against fourteen defendants, including
Appellants, in connection with their involvement in the Philadelphia LCN and its
1
“Unlawful debt” is defined as:
a debt (A) incurred or contracted in gambling activity which
was in violation of the law of the United States, a State or
political subdivision thereof, or which is unenforceable under
State or Federal law in whole or in part as to principal or
interest because of the laws relating to usury, and (B) which
was incurred in connection with the business of gambling in
violation of the law of the United States, a State or political
subdivision thereof, or the business of lending money or a
thing of value at a rate usurious under State or Federal law,
where the usurious rate is at least twice the enforceable rate[.]
18 U.S.C. § 1961(6).
2
criminal activity over a number of years. Appellants and eight other defendants were
charged with participation in a RICO conspiracy in violation of 18 U.S.C. § 1962(d)
(Count 1). Massimino was also charged with one count of conspiracy to conduct an
illegal gambling business, in violation of 18 U.S.C. § 371 (Count 43), and two counts of
conducting an illegal gambling business, in violation of 18 U.S.C. § 1955 (Counts 44 and
48). Canalichio was charged with two counts of conducting an illegal gambling business
(Counts 47 and 49). Staino was charged with eleven counts of collection of unlawful
debt, in violation of 18 U.S.C. § 1962(c) (Counts 2–12); two counts of conspiracy to
make extortionate extensions of credit, in violation of 18 U.S.C. § 892(a) (Counts 24 and
39); one count of conspiracy to collect extensions of credit by extortionate means, in
violation of 18 U.S.C. § 894(a)(1) (Count 25); ten counts of collection of extensions of
credit by extortionate means, in violation of 18 U.S.C. § 894(a)(1) (Counts 13-23); one
count of conspiracy to conduct an illegal gambling business (Count 43); one count of
conducting an illegal gambling device business (Count 44); and one count of conducting
an illegal sports bookmaking business, in violation of 18 U.S.C. § 1955 (Count 49).
In October 2012, Appellants and four other defendants proceeded to trial in the
District Court for the Eastern District of Pennsylvania. The trial, which lasted over four
months, included thousands of pages of testimony from dozens of FBI agents,
cooperators, and other government witnesses. Some witnesses described discrete
interactions with specific defendants, while others provided testimony as to the LCN’s
3
coded jargon and hierarchical structure.2 The Government also introduced voluminous
amounts of wiretap material and other covertly recorded conversations. The evidence on
the whole established that the Philadelphia LCN, as an organization, exercised control
over illegal gambling, bookmaking, and loansharking operations, all bolstered by implicit
or explicit threats of physical violence. For the sake of brevity, we will restate only the
facts necessary for resolution of this appeal.
A. Massimino
The evidence at trial was that Massimino was not only a made member of the
Philadelphia LCN, but that at times he served as the Family’s underboss, or second-in-
command. The Government’s case against Massimino was based on his participation in
at least four separate activities: (1) the illegal operation of video poker machines; (2) the
extortion of M&P Vending; (3) the annual collection of a “street tax” from bookmaker
Jack Buscemi; and (4) the attempt to collect on an unlawful loan from debtor Jerry
Iamurri. We briefly detail those incidents below.
At trial, the Government demonstrated that Massimino, as manager of an LCN
establishment known as Lou’s Crab Bar, oversaw the collection of illegal gambling
proceeds from two video poker machines at that location. In a series of raids conducted
2
Retired FBI Special Agent Joaquin Garcia explained that each LCN family has a
boss, an underboss, and a “consigliere.” Supp. App. 899–900. Below that fall
“caporegimes,” who serve as crew captains; “made” members, also called “soldiers”; and
associates, whom Garcia described as “worker bees.” Supp. App. 900–04.
4
in April 2001, the FBI seized dozens of the Philadelphia LCN’s video poker machines.
Massimino and Joseph Ligambi, a co-defendant and the purported boss of the
Philadelphia LCN, attempted to stem their losses from the FBI’s raid by acquiring a still-
existing video poker route operated by M&P Vending, a company co-owned by
government trial witness Joseph Procaccini and grand jury witness Paul Drzal.
Procaccini testified that in May 2001, he and Drzal were asked to meet with Massimino
and Ligambi at Lou’s Crab Bar. Knowing that the two were LCN members, Procaccini
offered Ligambi and Massimino a share of M&P Vending’s profits so the two would
“leave [Procaccini and Drzal] alone.” Supp. App. 4217–18. Procaccini was concerned
for his safety, testifying “we would get hurt if we didn’t play ball with them,” Supp.
App. 4220–21, and that he “was afraid of getting beat up or getting hurt in some way” if
they resisted, Supp. App. 4277.
At the end of the meeting, Massimino instructed Procaccini and Drzal to prepare a
list of M&P Vending’s video poker locations, which they did. Days later Massimino
introduced them to Staino, who accompanied them to the machines and replaced the
locks on the machines’ cash receptacles, effectively placing them under LCN control.
Procaccini refused subsequent demands from Massimino and Staino that he sign an
agreement of sale formally conveying the video poker machines to them. He conceded
that he accepted roughly $63,000 from Massimino and Staino over the following months,
but asserted that this was only a portion of the profit from the machines and that he never
would have voluntarily sold the machines at that price.
5
The Government also introduced evidence that Massimino, acting on behalf of the
Philadelphia LCN, extorted bookmaker Jack Buscemi, who testified that he paid
“Christmas money” to the LCN so he could operate his bookmaking business without
“disruption,” such as interference with the business or physical violence. Supp. App.
2615–17. Buscemi testified that in 2002, he met with Massimino at Lou’s Crab Bar and
delivered a $7,500 “Christmas payment.” Supp. App. 2627–28. In 2003, Buscemi made
a second payment to Massimino for the same purpose.
In March 2004 Massimino was convicted on state racketeering charges in New
Jersey, but even while incarcerated, he continued to participate in LCN affairs. Before
reporting to state prison, Massimino told Buscemi that an LCN associate, Gaeton
Lucibello, would be collecting future payments, which Buscemi made to Lucibello in
2004, 2005, and 2006. The Government also introduced recordings of Massimino’s
prison calls, on which Massimino instructed LCN associate Robert Verrecchia on how to
handle the illegal gambling proceeds at Lou’s Crab Bar in Massimino’s absence.
Finally, the Government produced a letter seized from Massimino’s outgoing
prison mail pursuant to a federal subpoena. In the letter, Massimino asked a friend,
Archie Rosenberg, to communicate a threat to an LCN debtor, Jerry Iamurri, regarding an
outstanding $35,000 loan. The letter stated, in part:
Get in touch with Michael [Curro] and tell him to tell his
mother to tell her husband [Jerry Iamurri] that he better get
my fuckin money. I don’t care who the fuck he owes he
better get mine. This mother fucker owes me 35,000. I don’t
care if he has to rob a bank. He fuckin better get my money. .
6
. . I’m tired of the stories and bullshit. He won’t be able to
hide anywhere in the U.S.
Supp. App. 5680.
B. Canalichio
The Government’s evidence at trial was that Canalichio was a made member of
the LCN who participated extensively in the organization’s illegal bookmaking and
loansharking. To establish Canalichio’s general status in the LCN, the Government
introduced recorded conversations in which other LCN members referred to Canalichio’s
induction into the LCN and discussed his incarceration status. The Government also
introduced photos recovered from Canalichio’s home in which Canalichio was seen
posing with Philadelphia LCN notables, including Massimino. The bulk of the
substantive evidence against Canalichio, however, came from (1) the testimony of
cooperating witnesses who had been subjected to collection efforts; (2) recorded
conversations substantiating those accounts; and (3) Canalichio’s own words on a
wiretapped phone. We will briefly recount that evidence here.
In January 2002, cooperating witness Peter Albo, himself a bookmaker, incurred a
$16,000 debt placing sports bets with Philadelphia LCN associates and codefendants
Louis Baretta and Gary Battaglini. When he proved unable to pay, Battaglini threatened
to “put a bullet in [Albo’s] head.” Supp. App. 5160. Unbeknownst to the LCN, Albo
was under investigation by the FBI, and had agreed to cooperate with them. The FBI
arranged for Albo to introduce Baretta and Battaglini to “Vinny,” purportedly another
7
bookmaker but in reality Joseph Stone, an undercover FBI agent. In February 2002, Albo
arranged a meeting in which Stone agreed to assume Albo’s debt and channel his future
sportsbook action through Baretta and Battaglini rather than Albo.
In May 2002, Stone went to a deli owned by Battaglini to pay his gambling debts.
There he was introduced to Canalichio, who told Stone he mostly did “collections,” but
that he also accepted sports bets on football games. Supp. App. 5233. Stone complained
to Canalichio that he wasn’t getting the betting “lines” early enough for his customers’
satisfaction. Id. Canalichio told Stone he would “talk to the guy” about getting the
information more quickly, and affirmed that he would “tighten that up by Monday.”
Supp. App. 5232–33. Other recorded conversations revealed Canalichio’s direct
participation in the bookmaking business as a debt collector and advisor on business
matters. Additionally, portions of his profits were funneled to Philadelphia LCN leaders,
including Ligambi, and in one instance directly to the spouse of an imprisoned LCN
member.
Apart from the bookmaking business, Canalichio provided protection for an LCN
video poker operation at the First Ward Republican Club (FWRC), a private social club
in South Philadelphia operated by codefendant and made LCN member Eric Esposito. In
March 2006, Esposito told Canalichio that a customer had started a fight inside the
FWRC and pulled a gun. Canalichio told Esposito: “[F]ind out where he lives[,] I’m
gonna come down tonight. I, I got to get this motherfucker.” Supp. App. 5300. After
reporting the incident to another LCN member, Canalichio called Esposito back and told
8
him: “I’m gonna go see him tonight and then we’ll take a ride[,] we’ll go find this
motherfucker and talk to him.” Supp. App. 5307. Canalichio also added that if the
customer returned to the FWRC, “I’ll come down and fuckin’ crack his head real quick.”
Supp. App. 5308.
The Government also introduced testimony that Michael Orlando, a cooperating
witness, took out a $5,000 “street loan” from Canalichio at an extortionate interest rate in
2001. Supp. App. 526. When Canalichio went to prison later that year, Orlando stopped
making payments, but was soon confronted by Baretta and Battaglini, who threatened
him and attempted to collect payments on Canalichio’s behalf. In April 2002, after
Canalichio’s release, he confronted Orlando and explained that he was collecting the debt
on behalf of the LCN because the money belonged to Ligambi. In a separate meeting,
Baretta threatened Orlando with violence from Canalichio: “[I]f this guy don’t like you
he’s capable of cracking you. . . . It ain’t coming from me but him, he, he would do it.”
Supp. App. 5107. On other occasions Canalichio described to Orlando his use of
physical violence to collect other unpaid debts.
The Government also introduced evidence that in December 2005, cooperating
witness Joseph Comerer obtained a $500 street loan from Baretta and Battaglini. When
Comerer failed to repay the debt, Canalichio participated in collection efforts, and
Battaglini eventually threatened Comerer with a voicemail message that if he again failed
to make payment, “it’s either I give ya’ another call back or I send [Canalichio] up to see
you. Now you take your choice.” Supp. App. 5155.
9
C. Staino
The Government’s evidence at trial was that Staino was a made member of the
Philadelphia LCN and a self-described “CFO” of one of the local LCN factions, Supp.
App. 5249, and in one meeting with a neighboring LCN Family was introduced as a
caporegime. Witnesses testified that Staino was regularly seen in Ligambi’s company at
Lou’s Crab Bar, and from there participated in many of the Philadelphia LCN’s
operations, including loansharking, money laundering, and illegal gambling.
Specifically, the Government introduced evidence that beginning in 2001, Staino
extended loans to Henry Scipione, another FBI cooperator. In 2003, Scipione arranged
for Staino to meet “Dino,” a self-proclaimed money launderer who was in reality David
Sebastiani, an undercover FBI agent. Sebastiani agreed to cover a debt of $12,000 owed
to Staino by another undercover FBI agent. On one occasion Staino told Sebastiani: “I’m
not gonna pressure anybody until it comes to a situation where there is nothing there.
Then there’s a problem.” Supp. App. 5242. In a later meeting, Sebastiani asked Staino if
he could recommend someone to serve as “muscle” in connection with a cash transaction.
Staino App. 289. Staino introduced Sebastiani to LCN associate Robert Ranieri, who
then met with Sebastiani. On three occasions thereafter, Sebastiani paid Staino after
Ranieri participated as a bodyguard in staged money-laundering transactions.
In another instance in 2004, Sebastiani himself sought a $25,000 loan from Staino,
which Staino offered at the interest rate of $3,000 a month, but with the caveat that
Sebastiani would be hurt if he couldn’t repay the loan on time. After Sebastiani attested
10
that he would repay the money, Ranieri gave Sebastiani a cereal box containing $25,000
in cash, but again emphasized that Staino “can turn into a fucking devil, just like that.”
Supp. App. 5262. Ranieri also repeatedly warned Sebastiani not to talk to Staino about
the loan over the telephone. When Sebastiani later told Staino he wanted to repay the
loan in full, Staino requested $20,000 in cash, a $5,000 check from Sebastiani’s business
account, and an IRS Form 1099 to support the check payment, all of which Sebastiani
delivered to Ranieri shortly thereafter.
To prove that Staino had engaged in money laundering, the Government presented
a financial analysis of JMA Industries, Inc. (JMA), a corporation created by Staino on
behalf of Ligambi, Massimino, and himself to accommodate the cash flow from their
video poker operation. An FBI agent testified that from July 2002 through June 2009,
JMA’s bank records showed deposits of $684,073 in cash and withdrawals of
$107,977.63 in the form of checks payable to a person named Olivia Ligambi for
“payroll.” Supp. App. 4854. Curt Arbitman, a cooperating witness who serviced video
poker machines for JMA, testified that to his knowledge, JMA had no employees, and he
had never heard of anyone named Olivia Ligambi. Supp. App. 3980.
D.
In January 2013, after roughly three months of testimony, jury deliberations
began. As we discuss in greater detail below, a juror was dismissed after disclosing
potentially contaminating information regarding a defense witness, after which an
alternate juror was empaneled and the jury began deliberations anew. On February 5,
11
2013, the jury returned a mixed verdict, finding Massimino guilty on Count 1 (RICO
conspiracy), but failing to reach a unanimous verdict on Count 43 (conspiracy to conduct
an illegal gambling business) and Counts 44 and 48 (conducting an illegal gambling
business). The jury convicted Canalichio, too, on Count 1 (RICO conspiracy), but
acquitted him on Count 47 (conducting an illegal gambling device business) and Count
49 (conducting an illegal sports gambling business). The jury found Staino guilty on
Count 24 (conspiracy to make an extortionate extension of credit), and Count 25
(conspiracy to collect an extension of credit by extortionate means), but acquitted him on
Counts 2 through 23, 29, and 49. The jury was unable to reach a unanimous verdict
against Staino on Count 1 (RICO conspiracy), Count 43 (conspiracy to conduct an illegal
gambling device business), and Count 44 (conducting an illegal gambling device
business). On April 18, 2013, Staino pleaded guilty to those three counts.
In July 2013, the District Court sentenced Appellants in separate proceedings,
which we address in detail below. The Court sentenced Massimino to 188 months’
imprisonment, three years of supervised release, and a $5,000 fine; Canalichio to 137
months’ imprisonment, three years of supervised release, and a $1,000 fine; and Staino to
97 months’ imprisonment, three years of supervised release, and a $7,500 fine. The
Court further ordered Appellants to forfeit 86 seized video poker machines and $8,000 in
seized cash. Appellants filed timely notices of appeal.
12
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
III.
Appellants raise a great number of legal challenges to their convictions and
sentences, some collectively and some individually. We will first address Appellants’
challenges to the sufficiency of the evidence, then turn to other arguments which they
believe warrant a reversal of their convictions. Lastly we address Appellants’ challenges
to their sentences.
A. Sufficiency of the Evidence
All three Appellants challenge the sufficiency of the evidence against them—
Massimino and Canalichio as to Count 1, charging a RICO conspiracy under 18 U.S.C. §
1962(d), and Staino as to Count 25, charging conspiracy to collect extensions of credit by
extortionate means under 18 U.S.C. § 894. Our review of the sufficiency of the evidence
is “highly deferential.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir.
2013) (en banc). The well-established standard is whether, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318–19 (1979). “[T]he verdict must be upheld as long as it does not ‘fall below
the threshold of bare rationality.’” Caraballo-Rodriguez, 726 F.3d at 431 (quoting
Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012)).
13
To establish a RICO conspiracy under 18 U.S.C. § 1962(d), the government must
prove the following three elements:
(1) two or more persons agreed to conduct or participate,
directly or indirectly, in the conduct of an enterprise’s affairs
through a pattern of racketeering activity or collection of an
unlawful debt;
(2) the defendant was a party to or a member of the
agreement; and
(3) the defendant joined the agreement, knowing of its
objective to conduct or participate in the conduct of the
affairs of an enterprise through a pattern of racketeering
activity or collection of unlawful debt, and intending to join
with at least one other co-conspirator to achieve that
objective.
Salinas v. United States, 522 U.S. 52, 63 (1997). The government need not prove that the
defendant agreed to commit, or personally committed, two acts of racketeering activity,
and instead must establish only that the defendant agreed that a pattern of racketeering
activity or a collection of unlawful debt would be accomplished through co-conspirators.
See id. at 65–66.
Massimino’s argument on this point is that even if the Philadelphia LCN itself
constituted a far-reaching RICO conspiracy, no evidence existed that he knowingly
joined it. He contends that he was never the underboss of the Philadelphia LCN family,
but at most “just another made guy,” Massimino Br. at 15, whose affiliation with the
LCN, without more, was not a criminal act, see United States v. Pungitore, 910 F.2d
1084, 1146 (3d Cir. 1990). He further suggests that any illegal loansharking he engaged
in was a personal enterprise unrelated to the LCN.
14
Proof of Massimino’s specific rank within the LCN was not an element of the
Government’s RICO case against him. Even so, contrary to Massimino’s assertions, the
Government introduced ample evidence that Massimino was more than just a rank-and-
file member of the Philadelphia LCN. Two cooperating witnesses testified regarding
their belief that he served as the Family’s underboss—testimony bolstered by a recorded
phone conversation in which Massimino agreed with another person’s characterization of
him as “the underboss.” Supp. App. 5603a. And the Government’s witnesses, whom the
jury was entitled to credit, established that Massimino’s loansharking and extortion
occurred as part of the broader LCN enterprise. Jack Buscemi, for instance, testified that
Massimino repeatedly exacted a “street tax” from him in connection with an LCN
protection racket, and further evidence permitted the conclusion that Massimino later
directed the continued collection of the “tax” from Buscemi with the assistance of
another LCN made member even while incarcerated. Michael Orlando, too, testified that
he was summoned to see Massimino in connection with an unpaid LCN debt to
Canalichio, and that he was fearful of LCN retribution if he were to leave the debt
unsatisfied. On this basis a rational juror could have inferred that Massimino knowingly
joined the LCN conspiracy to engage in a pattern of racketeering activity and collection
of unlawful debt.3
3
Massimino also argues that under United States v. Gaudin, 515 U.S. 506 (1995),
the jury was required to find the commission of two specific racketeering acts by proof
beyond a reasonable doubt. In Gaudin, the Court recognized a criminal defendant’s
15
Canalichio, too, contends that the evidence was insufficient to support his
conviction for RICO conspiracy. Time and again, however, the record, viewed in the
light most favorable to the Government, demonstrates Canalichio’s knowing participation
in the business of the Philadelphia LCN, both in the context of issuing loans and
accepting bets, and threatening violence to those who failed to square their accounts.
Thus, for largely the same reasons applicable to Massimino’s conviction, we reject
Canalichio’s challenge to the sufficiency of the evidence.
Staino’s conviction on Count 1, unlike Massimino’s and Canalichio’s, was the
result of a guilty plea rather than a jury verdict, and accordingly, he does not challenge
the sufficiency of the Government’s proof on that count. He does contend, however, that
the Government’s proof was insufficient to support his conviction on Count 25, charging
him with conspiracy to collect extensions of credit by extortionate means in violation of
18 U.S.C. § 894(a)(1). The Government responds that when Staino pleaded guilty on
Count 1, he explicitly conceded that this same conviction that he now challenges served
“right to have a jury determine, beyond a reasonable doubt, his guilt of every element of
the crime with which he is charged.” Id. at 522–23. But Gaudin does not warrant relief
here. Commission of individual racketeering acts is not an element of RICO conspiracy,
see Salinas, 522 U.S. at 65–66, and a jury may find a defendant guilty of such conspiracy
even while returning a verdict of acquittal on separately charged individual acts of
racketeering activity. See United States v. Yannotti, 541 F.3d 112, 128–29 (2nd Cir.
2008). Further, the District Court is obligated to make findings regarding “underlying
racketeering activity” for purposes of sentencing, U.S.S.G. § 2E1.1, and such findings
must be supported only by a preponderance of the evidence. See United States v.
Ciaverella, 716 F.3d 705, 735–36 (3d Cir. 2013).
16
as a valid factual predicate to support the RICO conviction. His attorney, too,
represented that “we have agreed . . . that the two acts, the Counts 24 and 25 in the
indictment that he was found guilty of would serve as a basis for the factual basis for the
RICO conspiracy plea and the conviction. Everything else . . . is frosting on the cake.”
App. 5461.
We agree with the uncontroversial view of the Second Circuit that a defendant
waives any appellate challenge to the sufficiency of the evidence when he pleads guilty to
an offense. See United States v. Maher, 108 F.3d 1513, 1528–29 (2d Cir. 1997). And
where the defendant expressly concedes that one of the elements of the pleaded offense is
itself satisfied by the fact of a prior conviction, as it was here, it follows that the
defendant waives any later challenge to the sufficiency of the evidence underlying that
predicate conviction. Therefore, we conclude that Staino’s instant claim, which is
tantamount to an assertion that his RICO plea did not have a factual basis, has been
waived.
In the alternative, we conclude that the Government introduced sufficient evidence
to support the jury’s finding of guilt on Count 25. 18 U.S.C. § 894 provides:
(a) Whoever knowingly participates in any way, or conspires
to do so, in the use of any extortionate means (1) to collect or
attempt to collect any extension of credit, or (2) to punish any
person for the nonrepayment thereof, shall be fined under this
title or imprisoned not more than 20 years or both.
(b) In any prosecution under this section, for the purpose of
showing an implicit threat as a means of collection, evidence
may be introduced tending to show that one or more
17
extensions of credit by the creditor were, to the knowledge of
the person against whom the implicit threat was alleged to
have been made, collected or attempted to be collected by
extortionate means or that the nonrepayment thereof was
punished by extortionate means.
18 U.S.C. § 894. “Extortionate means” is defined as “any means which involves the use,
or an express or implicit threat of use, of violence or other criminal means to cause harm
to the person, reputation, or property of any other person.” Id. § 891(7). Staino contends
that here, any threats were made at the time of the extension of the loan, rather than
during its collection, which is insufficient to satisfy § 894. See United States v. Lore, 4 F.
Supp. 2d 352, 357 (D.N.J. 1998).
We need not decide the correctness of Lore’s holding—a question we have not
addressed in a precedential holding—because this case is distinguishable. Staino was
convicted of conspiracy to use extortionate means to collect an extension of credit, rather
than of the substantive offense itself. Regardless of whether Sebastiani repaid the
relevant debts without himself falling into arrears or being threatened—an arguable point
which we need not address—the Government’s evidence on the whole would allow a
rational juror to conclude that Staino conspired with Ranieri and others to employ threats
of violence not just in the extension of credit but also in the collection of debts.
Accordingly, we will affirm Staino’s conviction on Count 25.
B. Miscellaneous Arguments
1. Jury Contamination
18
After five days of jury deliberations, Juror Nine commented to the other jurors that
five years earlier, she had heard from a friend that defense witness Jerry Davis was “not a
good, honest person.” Massimino App. 324. When informed of this disclosure, the
District Court immediately halted deliberations, dismissed Juror Nine, and conducted a
thorough, individualized voir dire of each remaining juror to discern the extent to which,
if any, the information had affected those jurors’ ability to remain fair and impartial.
During the course of the voir dire, Juror Two and Juror Five expressed initial
hesitation regarding the extent to which the extraneous information might impact their
ability to assess the evidence fairly and impartially. Upon further questioning, however,
both jurors unequivocally expressed an ability to disregard the extraneous information
and to remain fair and impartial. On that basis the District Court denied Appellants’
motions for a mistrial and to dismiss Jurors Two and Five. The Court then further
instructed the jury to begin deliberations anew and admonished the jury to disregard the
extraneous information and decide the case solely on the basis of the evidence presented
in court. After those instructions, the jury deliberated for an additional sixteen days
before rendering a mixed verdict. The District Court later denied Canalichio’s motion for
a new trial based on jury contamination.
We review the district court’s decision whether to grant a mistrial on the basis of
juror exposure to extraneous information for an abuse of discretion. See United States v.
Urban, 404 F.3d 754, 777 (3d Cir. 2005). “A new trial is warranted if the defendant
likely suffered ‘substantial prejudice’ as a result of the jury’s exposure to the extraneous
19
information.” United States v. Fumo, 655 F.3d 288, 304 (3d Cir. 2011) (quoting Urban,
404 F.3d at 777). “The party seeking a new trial bears the burden of demonstrating a
likelihood of substantial prejudice.” Urban, 404 F.3d at 777.
Our protocol for determining whether extra-judicial information adversely affected
the jury is as follows: “First, a court determines whether the [information] is prejudicial.
Second, if it is, the court determines whether any jurors were exposed to the
[information]. Third, if exposure did occur, the court examines the exposed jurors to
determine if this exposure compromised their impartiality.” Waldorf v. Shuta, 3 F.3d
705, 709–10 (3d Cir. 1993) (citing United States v. Jackson, 649 F.2d 967, 976 (3d Cir.
1981)). Here, the Government does not dispute that the information was prejudicial, and
that all jurors were exposed to the information. We thus direct our attention to the third
step, which requires consideration of the following factors:
whether (1) the extraneous information . . . relate[s] to one of
the elements of the case that was decided against the party
moving for a new trial; (2) the extent of the jury’s exposure to
the extraneous information; [(3)] the time at which the jury
receives the extraneous information; [(4)] the length of the
jury’s deliberations and the structure of the verdict; [(5)] the
existence of instructions from the court that the jury should
consider only evidence developed in the case; and (6) whether
there is a heavy volume of incriminating evidence[.]
Fumo, 655 F.3d at 307 (citations and internal quotation marks omitted).
The information at issue here concerned the character of a single defense witness
in the much broader context of a lengthy, complex trial. Specifically, the defense had
called Davis to attack the character of Louis Monacello, a cooperating witness who
20
testified that, among other things, Massimino conducted illegal gambling activities at
Lou’s Crab Bar, as charged in Count 48 of the Indictment. But as noted earlier, the jury
acquitted Massimino on Count 48. This compels the conclusion that Davis’s testimony
regarding Monacello’s character was, if anything, credited by the jury despite the
extraneous information. We thus conclude that the District Court did not abuse its
discretion in denying Appellants’ motions for relief based on juror contamination.
2. Expert Testimony
Massimino and Canalichio argue that the District Court wrongly admitted certain
expert testimony of retired FBI Special Agent Joaquin Garcia, a longtime undercover
agent in the world of organized crime. Expert opinion testimony is admissible if it will
assist the jury “to understand the evidence or to determine a fact in issue.” Fed. R. Evid.
702(a). We review the admission of expert testimony for abuse of discretion. See United
States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001).
At trial, Garcia testified that he had spent over two years embedded in the New
York Gambino LCN Family, during which he became familiar with the LCN’s
hierarchical structure, methods of operation, jargon, and the rank and identity of many
specific members. Appellants do not dispute that Garcia was properly qualified as an
expert with respect to his knowledge of the LCN; instead, they object primarily to
Garcia’s testimony regarding the content of covertly recorded conversations between
high-ranking members of New York and Philadelphia LCN families. Garcia testified that
those conversations, cast by Appellants as innocent chatter at a social gathering, were rife
21
with LCN jargon and oblique references to LCN members by nickname. In summation
the Government suggested that Garcia’s testimony provided the context necessary for the
jury to determine whether Appellants had knowingly participated in a RICO conspiracy.
We have consistently held that expert testimony regarding the structure and nature
of the LCN, and its methods of operation and terminology, falls within the scope of Rule
702. See Pungitore, 910 F.2d at 1148–49; United States v. Theodoropoulos, 866 F.2d
587, 592 (3d Cir. 1989), overruled on other grounds, United States v. Price, 76 F.3d 526,
528 (3d Cir. 1996); United States v. Riccobene, 709 F.2d 214, 230–31 (3d Cir. 1983).
Garcia’s testimony, including his description of the rank and identity of many non-
defendant LCN members, was properly admitted to help the jury understand certain
conversations and evaluate their probative value with respect to Appellants’ alleged
involvement in a RICO conspiracy. Appellants’ remaining minor objections to the basis
for or content of Garcia’s expert testimony are meritless. Accordingly, we will not grant
relief on this basis. 4
4
In his opening brief, Canalichio also objected to the expert testimony of FBI
Special Agent John Augustine regarding the meaning of certain gambling and
bookmaking jargon. Because Canalichio did not object to that testimony at trial, we
review for plain error. See United States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir. 2009).
As above, we see no error with the District Court’s admission of this testimony to assist
the jury in understanding coded words or phrases common in racketeering activity. See
United States v. Vastola, 899 F.2d 211, 232-34 (3d Cir. 1990), rev’d on other grounds,
497 U.S. 1001 (1990). Nor does our review of the record reveal any instances in which
Augustine’s factual and expert testimony became problematically intermingled. See, e.g.,
United States v. Garcia, 752 F.3d 382, 392–95 (4th Cir. 2014).
22
3. Cross-Examination Regarding Disciplinary Infractions
Massimino and Canalichio raise evidentiary and constitutional challenges to the
District Court’s preclusion of cross-examination of three FBI agents regarding certain
disciplinary infractions present in their personnel files.5 Rulings on the scope of cross-
examination under Federal Rule of Evidence 608(b) and the Confrontation Clause of the
Sixth Amendment are reviewed for abuse of discretion. See United States v. Freeman,
763 F.3d 322, 341 (3d Cir. 2014). Under both Rule 403 and the Sixth Amendment, the
district court may preclude cross-examination where the evidence is of marginal
relevance or will result in unfair prejudice or confusion of the issues. See Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986). The court must assess whether the jury had
sufficient information, “‘without the excluded evidence, to make a discriminating
appraisal of the possible biases and motivation of the witness[].’” United States v.
Chandler, 326 F.3d 210, 219 (3d Cir. 2003) (quoting Brown v. Powell, 975 F.2d 1, 4 (1st
Cir. 1992)). Further, “if judicial self-restraint is ever desirable, it is when a [Federal]
Rule 403 analysis of a trial court is reviewed by an appellate tribunal.” United States v.
We also note that the vast majority of the legal arguments made in Canalichio’s
reply brief—including claims that Agent Augustine’s testimony violated the rule against
testimonial hearsay set forth in Crawford v. Washington, 541 U.S. 36 (2004), and
constituted an impermissible “overview” of the Government’s case, see United States v.
Flores-de-Jesus, 569 F.3d 8, 17–18 (1st Cir. 2009)—were not raised in Canalichio’s
opening brief on appeal. We therefore deem those arguments waived. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
5
To avoid the necessity of filing this opinion under seal, we will avoid referring to
the three agents by name.
23
Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000) (en banc) (quoting
United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978)).
At issue here is a 2008 incident in which three testifying FBI Agents were
administratively sanctioned after an investigation revealed that they and other agents had
improperly consulted an answer key while taking a test on FBI internal investigative
guidelines. The FBI Office of Professional Responsibility concluded that the agents had
exhibited “a serious lack of judgment” that violated FBI Offense Code 5.22, which
prohibits employees from “[e]ngaging in conduct, while on duty, which dishonors,
disgraces, or discredits the FBI; seriously calls into question the judgment or character of
the employee; or, compromises the standing of the employee among his peers or his
community.” Massimino App. 158, 178. The investigation also concluded, however,
that the agents had not committed an act of dishonesty or untruthfulness. One agent
received a two-day suspension, while the two others were each suspended for one day.
The Government moved in limine to preclude Appellants from cross-examining
the agents on the administrative adjudications at issue. The District Court concluded that
the evidence was not admissible under Federal Rule of Evidence 608(b), which permits
attacks on a witness’s credibility through evidence of past untruthfulness, and that the
evidence was more prejudicial than probative under Rule 403. The Court further
concluded that precluding cross-examination on the disciplinary adjudications would not
violate the Confrontation Clause because the probative value of the evidence was
24
minimal, and was substantially outweighed by the prejudicial factors described in Rule
403.
We see no error in the District Court’s rulings with respect to the scope of cross-
examination. First, we agree with the District Court that the OPR’s finding of “a serious
lack of judgment,” without more, does not amount to specific conduct probative of
untruthfulness under Rule 608(b). Second, the District Court’s application of the
balancing test required by Rule 403 and the Confrontation Clause was not an abuse of
discretion. Introduction of the administrative adjudications here would have required a
lengthy detour in an already complex trial. Nor was it likely that cross-examination
regarding these adjudications, which were completely unrelated to the matter at hand,
would have revealed any additional bias or motive for the agents to shape their testimony
against Appellants. In sum, we will affirm the District Court’s limitations on the scope of
cross-examination.
4. Medical Records and Cross-Examination of Michael Orlando
Massimino and Canalichio argue that the District Court improperly denied defense
requests for the medical records of Michael Orlando, a government witness whose trial
testimony was interrupted by a hospital stay after the start of cross-examination. They
further contend that under Rule 403, the District Court should have permitted them to
cross-examine Orlando on past and ongoing drug use. Our review, as above, is for abuse
of discretion. See Freeman, 763 F.3d at 341.
25
At trial, Orlando testified on direct examination that he had taken out a $5,000
street loan from Canalichio, and that Canalichio and other LCN members later threatened
Orlando with violence to collect the principal and interest on the loan. Defense counsel
began cross-examining Orlando on Friday, October 26, but did not finish that day. When
trial resumed on the following Wednesday, the Government reported that Orlando was
temporarily unavailable due to illness after being taken to the hospital. Later, after in
camera review of Orlando’s medical records, the District Court directed the Government
to disclose Orlando’s discharge summary to defense counsel. 6 When cross-examination
of Orlando resumed on November 2, defense counsel did not question Orlando regarding
the discharge summary, despite having had the opportunity to do so. Additionally, the
Court permitted defense counsel to question Orlando as to medical matters that might
affect his testimony, such as the ongoing use of prescription pain relievers.
We discern no error in the District Court’s limitations on the scope of Orlando’s
cross-examination. Defense counsel received adequate notice of the reason for Orlando’s
unavailability and were permitted to cross-examine him regarding his ongoing use of
prescription drugs, including as to whether such use occurred in violation of his
cooperation agreement. Appellants fail to demonstrate that the District Court abused its
discretion by precluding cross-examination on periods of drug use that were not germane
6
Again, to avoid the necessity of filing this opinion under seal, we will not refer to
the specific contents of the discharge summary.
26
to this case. Additionally, defense counsel thoroughly impeached Orlando on many other
grounds, including that he had been convicted of felony fraud charges, had committed
numerous other uncharged felonies, had received probation in exchange for his
cooperation, and had made prior inconsistent statements. Consequently, even without the
excluded evidence, which was of limited probative value, the jury was able “to make a
discriminating appraisal of the possible biases and motivation of the witness[].”
Chandler, 326 F.3d at 219 (quotation marks and citation omitted). Accordingly,
Massimino and Canalichio have not established a right to a new trial based upon the
District Court’s narrow rulings on the scope of the cross examination of Orlando. 7
5. The Rosenberg Letter
Massimino challenges the District Court’s denial of his motion to suppress the
letter he sent to Archie Rosenberg while incarcerated on state racketeering charges in
2005. At the time, a federal grand jury had issued a subpoena for Massimino’s written
correspondence to the New Jersey prison where Massimino was housed. Prison officials
directed an investigator to open and read Massimino’s incoming and outgoing mail, after
which they discovered the Rosenberg letter. The District Court denied Massimino’s
motion to suppress the letter at trial. We review a ruling on a motion to suppress
7
Massimino argues for the first time in his reply brief that the Government
violated the constitutional protections described in Brady v. Maryland, 373 U.S. 83
(1963), by failing to disclose certain facts pertaining to Orlando’s medical incident.
Because that argument was not raised in Massimino’s opening brief, we deem it waived.
See Kost, 1 F.3d at 182.
27
evidence for clear error as to the underlying factual findings, and exercise plenary review
over the district court’s application of the law to the facts. See United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002).
Massimino directs us to Procunier v. Martinez, 416 U.S. 396 (1974), in support of
his contention that the seizure here violated the Fourth Amendment. He also argues that
the opening of the letter violated New Jersey Administrative Code 10A:18-2.7, which
provides that certain outgoing correspondence “shall not be opened . . . unless there is
reason to believe that the correspondence contains disapproved content . . . and then only
with the prior approval of the administrator or designee.” Id. “[D]isapproved content”
includes “information concerning activities within or outside the correctional facility
which would be subject to criminal prosecution under the laws of New Jersey or the
United States.” N.J. Admin. Code § 10A:18-2.14.
The Government is correct that Procunier pertained to First Amendment claims
rather than Fourth Amendment claims, and in any event has since been overruled. See
Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989). Instead, the correct standard is
provided by Stroud v. United States, 251 U.S. 15, 21–22 (1919), which established that
prison officials may open prisoner mail without violating the Fourth Amendment by
following established regulations and ensuring that “such seizures are prompted by
reasonable justification,” United States v. Brown, 878 F.2d 222, 225 (8th Cir. 1989).
Here, the District Court found that the federal grand jury subpoena and other information
provided prison officials with a reasonable basis to believe that the correspondence was
28
related to Massimino’s ongoing participation in illegal LCN activities. We are satisfied
that the District Court’s factual findings and legal conclusions on this issue were correct.
C. Sentencing
All three Appellants raise various challenges to their sentences. We review
sentences for procedural and substantive reasonableness, and the party challenging the
sentence bears the burden of demonstrating unreasonableness. United States v. Tomko,
562 F.3d 558, 567 (3d Cir. 2009) (en banc). First, we examine the record for significant
procedural errors “such as failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
If no procedural errors exist, we consider the substantive reasonableness of the
sentence. Id. The District Court “must demonstrate that it reasonably applied [the §
3533(a)] factors to the circumstances of the case.” United States v. Bungar, 478 F.3d
540, 543 (3d Cir. 2007). Our review is “highly deferential.” Id. “[U]nless no reasonable
sentencing court would have imposed the same sentence,” we affirm. Tomko, 562 F.3d at
568.
1. Massimino
Massimino contends that the District Court erred by sentencing him based on a
total offense level of 30, rather than 19. He agrees that under U.S.S.G. § 2E1.1, his base
29
offense level was the greater of 19 or the offense level applicable to the criminal activity
underlying his racketeering conviction.
Here, the District Court concluded that the trial evidence established Massimino’s
involvement in four groups of underlying racketeering activity: illegal gambling
involving video poker machines; the extortion of M&P Vending; the extortion of Jack
Buscemi; and the conspiracy to collect an extortionate extension of credit from Jerry
Iamurri. The second group, pertaining to M&P Vending, carried a base offense level of
18, which was increased by 2 levels for an expressed or implied threat of death or bodily
injury, and 2 levels for the financial loss to M&P Vending. The Court then applied a 4-
level enhancement under U.S.S.G. § 3B1.1(a) for Massimino’s status as an organizer or
leader of racketeering activity, and another 4-level enhancement under § 3D1.4 because
Massimino had participated in four groups of underlying racketeering activity. This
resulted in a total offense level of 30, which, when combined with Massimino’s criminal
history category of V, produced an advisory guidelines range of 151 to 188 months.
Massimino’s main argument is that the District Court should not have considered
the four groups of underlying racketeering activity for purposes of sentencing because the
jury acquitted Massimino on certain counts pertaining to that activity, and did not return a
special verdict indicating its factual findings on the uncharged matters. The sentencing
court, however, is permitted to consider evidence of both uncharged acts and evidence
underlying counts on which the defendant has been acquitted, so long as such conduct
has been proved by a preponderance of the evidence. See U.S.S.G. § 1B1.3, Background;
30
United States v. Watts, 519 U.S. 148, 157 (1997). The District Court was on sound
footing in crediting testimony from Government witnesses that squarely supported the
four underlying categories of racketeering activity.
Massimino also challenges the factual basis for the 4-level sentencing
enhancement he received for his role as “an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive . . . .” U.S.S.G. §
3B1.1.(a). Relevant factors for a leadership enhancement include the exercise of
decision-making authority, the nature of the defendant’s participation in the offense, the
degree of participation in the planning or organization of the offense, the nature and
scope of the illegal activity, and the defendant’s control and authority over other
participants. U.S.S.G. § 3B1.1, n.4. We review the District Court’s factual
determinations with respect to § 3B1.1 for clear error. United States v. Helbling, 209
F.3d 226, 243 (3d Cir. 2000).
Here, aside from acknowledging the title of “underboss,” Massimino repeatedly
exercised decision-making authority and displayed influence or control over others in the
execution of the LCN’s illegal activities. This included his role in the extortion of M&P
Vending and the collection of illegal payments from Jack Buscemi through Gaeton
Lucibello. Further, the District Court was entitled to conclude that, even while
incarcerated, Massimino supervised Robert Verrecchia’s continuation of illegal activities
at Lou’s Crab Bar. On these facts we cannot conclude that the District Court committed
clear error by designating Massimino an organizer or leader of the Philadelphia LCN.
31
Lastly, Massimino references Kimbrough v. United States, 522 U.S. 85 (2007), in
which the Supreme Court recognized the admonition that criminal sentences must be
“‘sufficient, but not greater than necessary,’ to accomplish the goals of sentencing . . . .”
Id. at 101 (quoting 18 U.S.C. § 3553(a)). Without significant elaboration, he contends
that the sentence here was substantively unreasonable and greater than necessary to
accomplish the goals of sentencing.
The District Court explicitly considered the sentencing factors of 18 U.S.C. §
3553(a). Initially, the District Court found that Massimino had committed “an extremely
serious offense.” Supp. App. 5546. The Court also commented on Massimino’s lengthy
criminal history, lack of remorse, and likelihood of recidivism:
I can only conclude, Mr. Massimino, that you don’t get it, you
never have gotten it, you have dedicated your life to a life of
crime, something which is not permitted in a civilized society.
Your own statements here today went to totally excuse . . .
your conduct. There was not a word of regret or remorse, not
any comment that “I made the wrong choices,” or “I hung
around the wrong people, I am sorry for what I have done.”
Rather, you were defiant to the end. You attacked the
prosecutors, you attacked the probation officer, others are
responsible for your lot, and while that was entirely
appropriate at the time of trial you stand here convicted of
these crimes.
There is nothing before me today that bodes well for your
future as a law-abiding citizen regardless of all of those
virtues and talents that you have.
32
Supp. App. 5549–50. The Court then imposed a prison term of 188 months, the top of
the advisory guidelines range. 8
In light of the abundant evidence of Massimino’s long-term involvement in a
paradigmatic RICO conspiracy, his lack of remorse, and the seriousness of the criminal
activity, we find that the District Court’s sentence fell well within its considerable
discretion. Accordingly, we will affirm the Massimino’s sentence.
2. Canalichio
As with Massimino, the District Court applied U.S.S.G. § 2E1.1 and found that
Canalichio had participated in four groups of underlying racketeering activity: sports
bookmaking and illegal gambling at the FWRC; the extortion of Michael Orlando; the
extortion of Peter Albo;9 and the extortion of Joseph Comerer. The latter three offenses,
which constituted violations of 18 U.S.C. § 892, carried a base offense level of 20. The
Court applied an additional 2-level enhancement after finding that Canalichio was a
manager or supervisor of racketeering activity under U.S.S.G. § 3B1.1(c), and then, again
as with Massimino, applied a 4-level increase based on the grouping under § 3D1.4. This
8
Both Massimino and Canalichio qualified as career offenders under U.S.S.G. §
4B1.1, which could have resulted in an advisory guidelines imprisonment range of 210 to
240 months. Because of an open question as to whether RICO conspiracy constitutes a
crime of violence, the District Court applied the rule of lenity and opted not to sentence
them as career offenders. Supp. App. 5512. The Government does not appeal from this
determination.
9
With respect to the Albo extortion, the District Court found that although
Canalichio did not directly participate in the extortionate debt collections, the activities of
Battaglini and Baretta in extorting Albo were foreseeable to Canalichio.
33
led to a total offense level of 26. Combined with a criminal history category of V,
Canalichio faced an advisory guidelines imprisonment range of 110 to 137 months. After
considering the nature of the criminal activity and Canalichio’s involvement in it, the
District Court imposed a sentence of 137 months’ imprisonment, at the top of the
advisory guidelines range.
Canalichio’s challenge to the District Court’s offense-level calculations is
somewhat different from Massimino’s. He argues that his offense level should have been
governed by U.S.S.G. § 1B1.2(d), which provides that “conviction on a count charging a
conspiracy to commit more than one offense shall be treated as if the defendant had been
convicted on a separate count of conspiracy for each offense that the defendant conspired
to commit.” Id. Federal courts have interpreted that provision to require, where the jury
returns only a general verdict, that the Government prove each underlying object of the
conspiracy beyond a reasonable doubt to the court sitting as a trier of fact. See, e.g.,
United States v. Farese, 248 F.3d 1056, 1061 (11th Cir. 2011).
Four of our sister courts of appeals have concluded that § 1B1.2(d) does not apply
to a RICO conspiracy, which “is considered a single object conspiracy with that object
being the violation of RICO.” United States v. Carrozza, 4 F.3d 70, 79–80 (1st Cir.
1993); see also United States v. Garcia, 754 F.3d 460, 483 (7th Cir. 2014); United States
v. Yannotti, 541 F.3d 112, 129–30 (2d Cir. 2008); United States v. Massino, 546 F.3d
123, 134–36 (2d Cir. 2008); United States v. Corrado, 227 F.3d 528, 542 (6th Cir. 2000).
But see Farese, 248 F.3d at 1059 (concluding that a RICO conspiracy is a multi-object
34
conspiracy). Our own precedent has not squarely addressed the applicability of §
1B1.2(d) to a RICO conspiracy, but we have affirmed the underlying principle that a
RICO conspiracy is a single-object conspiracy in which defendants agree to violate the
RICO statute itself, rather than to commit a multitude of separate underlying criminal
acts. See Riccobene, 709 F.2d at 224–25. Accordingly, we agree that U.S.S.G. §
1B1.2(d) has no bearing on these facts.
Canalichio’s second argument is that the record fails to support the District
Court’s application of a 2-level managerial enhancement under § 3B1.1(c). The record,
however, supported the conclusion that Canalichio was a made member of the
Philadelphia LCN, and that in hierarchical terms, he was responsible for supervising LCN
associates such as Baretta and Battaglini. This hierarchy was substantiated by testimony
that (1) Baretta and Battaglini collected or attempted to collect debts on Canalichio’s
behalf from Orlando and Comerer, and (2) Canalichio exercised managerial discretion
with respect to Baretta and Battaglini’s bookmaking operation. In light of this evidence,
the District Court did not clearly err in applying a 2-level managerial enhancement.
Finally, we conclude that the District Court adequately considered the
factors listed in 18 U.S.C. § 3553(a) and imposed a substantively reasonable sentence at
the top of the advisory guidelines range. Accordingly, we will affirm Canalichio’s
sentence.
3. Staino
35
Staino argues that the District Court erred at sentencing by (1) overruling his
objections to the conduct described in the PSR; (2) failing to adequately consider all
factors set forth in 18 U.S.C. § 3553(a); and (3) miscalculating his offense level. To
reiterate, Staino was convicted of conspiracy to make an extortionate extension of credit
(Count 24), and conspiracy to collect an extension of credit by extortionate means (Count
25). After the jury hung on Count 1 (RICO conspiracy), Count 43 (conspiracy to conduct
an illegal gambling device business), and Count 44 (conducting an illegal gambling
device business), Staino later pleaded guilty to those counts.
At sentencing, the District Court applied U.S.S.G. § 3D1.2(a) and found Staino
responsible for four groups of underlying racketeering activity: the illegal video poker
machine operation; the extortion of M&P Vending; the loansharking transactions with
agent Sebastiani; and the laundering of gambling and racketeering proceeds. Staino
objected to the PSR’s findings pertaining to the extortion of M&P Vending and the
charge of money laundering. The District Court overruled Staino’s objections on both
counts, finding Procaccini credible regarding the extortion of M&P Vending and
concluding that the Government had introduced sufficient evidence of money
laundering. 10 As with Massimino, the Court concluded that the extortion of M&P
Vending resulted in an adjusted offense level of 22, which was further increased to 25 by
10
The Court did note that it was not relying on the PSR’s findings as to Staino’s
alleged extortion of Henry Scipione and Frank DiGiacomo, because the jury had
acquitted Staino of the related substantive counts.
36
virtue of a 3-level enhancement for Staino’s managerial role under U.S.S.G. § 3B1.1(b).
The Court then applied a 4-level enhancement under § 3D1.4. Lastly, the Court granted a
1-level downward adjustment for acceptance of responsibility based upon Staino’s post-
trial guilty plea. This resulted in a total offense level of 28 which, combined with
Staino’s criminal history category of I, led to an advisory guidelines range of 78 to 97
months’ imprisonment.
The District Court next proceeded to address each of the sentencing factors listed
in 18 U.S.C. § 3553(a). The Court found that Staino had committed “an extremely
serious offense,” and that the Philadelphia LCN “has a long history of committing
crimes, the seriousness of which cannot be underestimated.” Staino App. 859. The Court
acknowledged that Staino was not a recidivist and that he had offered both character
testimony and letters at sentencing, but found that a sentence at the low end of the
guidelines range “would deprecate the importance of the sentencing statement that is
being made here today.” Staino App. 864. The Court then sentenced Staino to 97
months’ imprisonment, at the top of the advisory Guidelines range.
Staino’s main objection is that the District Court erred by applying a 3-level
managerial-role enhancement under U.S.S.G. § 3B1.1(b). As with Massimino and
Canalichio, however, the record demonstrates that Staino repeatedly exercised
managerial discretion over other criminal participants during the course of the RICO
conspiracy. With respect to M&P Vending, Staino supervised Curt Arbitman, the LCN
associate who maintained the video poker machines, as well as the individual operators of
37
the video poker “stops” on the route taken from Procaccini and Drzal. Further, when
Agent Sebastiani asked Staino for “muscle” to assist in a money-laundering transaction,
Staino repeatedly provided assistance from Ranieri, an LCN associate, and collected
payment afterward. And when Sebastiani took out a $25,000 loan from Staino, Ranieri
delivered the money and noted that he could not answer certain questions regarding
repayment without checking with Staino. On these facts we find that the District Court
did not abuse its discretion by applying a 3-level managerial enhancement.
We further conclude that the District Court did not err by overruling Staino’s
objections to the PSR’s statements regarding M&P Vending and money laundering. In
both instances the District Court was entitled to credit the testimony of government
witnesses that, if believed, supported Staino’s participation in those offenses.
We will also affirm the District Court’s denial of a 2-level downward adjustment
under § 3E1.1(a) for acceptance of responsibility. Staino pleaded guilty only after being
found guilty of certain other offenses by a jury, and even then denied the vast bulk of the
Government’s evidence at sentencing. The District Court credited Staino nonetheless by
granting a 1-level downward variance for acceptance of responsibility. Where Staino’s
guilty plea came late in the game and after putting the Government to its proof at trial, we
see no basis on which to conclude that the District Court abused its discretion by
declining the full 2-level adjustment for acceptance of responsibility under § 3E1.1(a).
And finally, we conclude that the District Court adequately considered the factors listed
38
in 18 U.S.C. § 3553(a) and imposed a substantively reasonable sentence at the top of the
advisory guidelines range.
IV.
For the forgoing reasons, we will affirm the judgment of the District Court.
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