United States v. Irizarry

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
8-25-2003
USA v. Irizarry
Precedential or Non-Precedential: Precedential
Docket No. 01-4484P
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PRECEDENTIAL
Filed August 25, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4484
UNITED STATES OF AMERICA
v.
ELVIS IRIZARRY,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 00-cr-00333-2)
District Court: Hon. Nicholas H. Politan
Argued: September 17, 2002
Before: BECKER, Chief Judge,* SCIRICA** and McKEE,
Circuit Judges
(Opinion filed: August 25, 2003)
ROY B. GREENMAN, ESQ. (Argued)
Budin, Greenman & Greenman
1379 Morris Avenue
Union, New Jersey 07083
Attorneys for Appellant
* Judge Becker completed his term as Chief Judge on May 4, 2003.
** Judge Scirica started his term as Chief Judge on May 5, 2003.
2
CHRISTOPHER J. CHRISTIE, ESQ.
United States Attorney
GEORGE S. LEONE, ESQ.
Chief, Appeals Division
RICHARDO SOLANO, JR., ESQ.
(Argued)
Assistant United States Attorney
970 Broad Street
Newark, New Jersey 07102
Attorneys for Appellee
OPINION OF THE COURT
McKEE, Circuit Judge.
Elvis Irizarry appeals his convictions for violating, and
conspiring to violate, the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1962 (c) and (d), a
drug offense, and several other substantive offenses. His
major complaint is that the government improperly joined
and tried separate and unrelated crimes and conspiracies
he allegedly committed with several individuals over the
course of many years. We will affirm the convictions for the
reasons set forth below.
I. FACTUAL BACKGROUND
Viewed in a light most favorable to the government, the
trial evidence showed that Irizarry was a central member of
a criminal group that operated out of Jersey City, New
Jersey for more than seven years. Irizarry’s principal job
was carrying out the group’s criminal activities, including
inter alia, murder, arson, armed robbery, drug trafficking,
and the extortionate collection of debts. Franco Durso was
Irizarry’s boss. Durso told Irizarry what to do “if anything
needed to be done so far as . . . persuad[ing] people to do
things, to get something done.” App. at 3163. As the boss,
Durso had the final say over Irizarry’s and the group’s
activities. For, example, when John McGuinness came to
Irizarry with a proposal to rob a check-cashing
supermarket in Paterson, New Jersey, Irizarry told
3
McGuiness that he “had to clear it with Franco [Durso]
before [McGuiness] could talk to [Irizarry].” App. at 3169.
Irizarry carried out the group’s criminal activities through
a group of associates that included, among others, Michael
Soto, Raymond Looney, Joseph Sammartino, Lee Farrell
and Samier Bakhoury (the “crew”). These five individuals
formed the core membership of Irizarry’s crew although
others were associated with it from time to time.
Durso “ran the show” for Massimo Ranieri in Jersey City,
and Durso and Irizarry both answered to Ranieri. App. at
3168. Ranieri was next in line to take control of a group
that was the Sicilian wing of the notorious Gambino crime
family. Ranieri was based in Brooklyn, New York, but also
spent time in Florida. Ranieri’s criminal activities included
debt collection, extortion and murder.
Durso paid a weekly “tribute to Ranieri in the amount of
$500 to $600. App. at 3198-99. McGuiness testified that a
“tribute” is “[w]hen you pay somebody to look over you.
Watch out for you” with regard to “disputes and stuff.” Id.For example, McGuiness once approached Durso because
“Timmy,” a man McGuinness knew, had been “stiffed” on a
bet “with some bookmaker in New York.” App. at 3201-02.
Durso brought McGuiness and Timmy to Brooklyn to meet
Ranieri. Ranieri spoke to Timmy alone and “[a] few days
later [Timmy] got his money.” App. at 3203.
A. Loansharking.
Loansharking was one of the principal ways the group
generated income. Durso loaned his own money, as well as
money belonging to others including McGuiness, Anthony
Rotolo, (also known as “Tony the Guinea),” and Rocco
Errico. If Durso was not repaid, Irizarry was sent to collect.
Between 1993 and 2000, Irizarry took various crew
members — including, Farrell, Looney, Sammartino and
Soto — with him on collection rounds in order to have
“extra bodies” that would “intimidate people.” App. at 2766.
When problems arose, Irizarry and the crew would resort to
violence. For example, Looney testified about one occasion
in early 1996, in which Irizarry confronted John Yengo at
Carmine’s Bar. Yengo owed money to several people,
4
including Durso, but he was not making payments. Irizarry
went into the bathroom to “talk” to Yengo while Looney
remained outside. Looney stated he “heard a commotion”
coming from the bathroom. App. at 2989. When Looney
went inside the bathroom to check, he saw Irizarry and
Yengo “scuffling” and saw Irizarry hit Yengo over the head
with a hammer. App. at 2989-90. According to Looney,
Irizarry then proceeded to “beat[ ] [Yengo’s] ass.” Id. Yengo
then “immediately [took some money] . . . out of his pocket
and handed” it to Irizarry. App. at 2990. According to
Looney, Yengo tried to explain that he came to Carmine’s
“to talk to Franco [Durso] to tell him he needed time to
pay.” Id.A similar incident involved someone known as “Farice,”
or “The Fisherman.” Farice owed approximately $20,000 to
Durso, approximately $30,000 to an individual named
“Michael Scurti” and he owed an unknown amount to
Rotolo. At some point, Farice received a settlement check
and used some of the proceeds to pay Scurti, but not
Durso. When Durso learned that Scurti had been favored
he told Irizarry, “Let’s go down and straighten it the f[_]
out.” App. at 2992. A week later, Irizarry entered the Italian
American Club that was across the street from Durso’s
pizzeria and returned with a “bloodied up” Scurti. App. at
2992093. Irizarry later told Looney that Scurti “got his ass
beat” and he was “going to have to pay that money.” App.
at 2993.
On another occasion, Looney recalled accompanying
Irizarry to a gas station in Fort Lee, New Jersey to make a
collection. On the way, Irizarry asked Looney if he would
have a problem killing the man who owed the money if he
did not pay. Looney assured Irizarry he would do whatever
it would “take to get this over with,” App. at 2993. However,
this incident did not result in anyone being killed.
On yet another occasion, Durso approached McGuiness
for information about a pizzeria supplier who owed Durso
money, and McGuiness informed Durso of the supplier’s
schedule. Irizarry arrived at a local pizzeria on the date
scheduled for that supplier’s deliveries and gave him “a
little shot in the head.” App. at 3192-94. Although
McGuiness did not see the attack, he saw Irizarry go into
5
the pizzeria, and thereafter saw the supplier “running out
. . . holding his head and scared. He was bleeding.” App. at
3194.
B. Cocaine Trafficking.
The crew also generated income by trafficking in illegal
drugs. From as early as 1991 or 1992, Durso sold cocaine
out of his pizzeria and out of two bars in Jersey City —
“Carmine’s” and “Martucci’s”. McCloskey assisted Durso’s
drug trafficking by “cutting” cocaine for Durso, preparing it
for resale, and occasionally selling it. Durso sometimes gave
McCloskey funds to purchase drugs, and the two referred
to themselves as “partners.”
Irizarry’s role in the trafficking scheme consisted of
traveling to New York to purchase cocaine and then
transporting it back to Jersey City. Irizarry used crew
members Sammartino, Soto, Bakhoury, Farrell and Looney
to help transport drugs as early as 1993. The routine was
generally the same. One or more crew members drove to
New York City with Irizarry. There, Irizarry purchased
drugs either at a “bodega” or a Cuban sandwich shop. They
would then return together to Jersey City and deliver the
cocaine to Durso or McCloskey. On occasion, Irizarry made
the crew member transport the cocaine back to New Jersey
by train while he drove back alone by car.
Although Irizarry controlled the actual transportation of
the cocaine, Durso had ultimate control of the operation. A
1996 episode illustrates the relative authority of the two
confederates. Sometime early that year, Irizarry wanted
Bakhoury to take over his role in the drug operation while
he, Irizarry, was in Italy. However, Durso refused to allow
Bakhoury to do so because Bakhoury smoked marijuana,
and Durso apparently thought that Bakhoury could not be
trusted.
C. Armed Robbery.
In early 1994, Irizarry hand picked members of his crew
for an armed robbery of an armored truck that delivered
money to and from the Kingsbrook Jewish Medical Center
6
in Brooklyn, New York. The robbery scheme apparently
resulted from a “tip” Irizarry had received from associates
in New York with an “inside connection.” App. at 2739,
2119. The robbery afforded Irizarry an opportunity “to build
a reputation for himself,” and he stated that it would also
be a good thing for the “old man,” i.e., Ranieri. App. at
1467.
Irizarry, Sammartino, Farrell and Bean had several
discussions about the details of the robbery, and Durso
and Irizarry eventually arranged for a car that would
provide the necessary transportation. However, after
members of the crew “cased” the hospital, Farrell became
concerned over “how dangerous [the scheme] was” and
informed Durso of his concerns. App. at 2747-48. The
robbery was called off, but Irizarry later told Farrell the
robbery was important to him (Irizarry) and that the
planners were fortunate they were still alive.
Around the same time in early 1996, Irizarry discussed a
number of robberies with other confederates including Soto
and Looney. The discussions included robbing a
supermarket that cashed checks in Paterson, New Jersey,
and a check cashing business in Hoboken, New Jersey.
McGuiness targeted both these businesses for the group,
but he had to get Durso’s permission before discussing the
robberies with Irizarry’s crew. On each occasion, Irizarry’s
crew went as far as “casing” the businesses even though
they did not actually commit the robberies. The Paterson
robbery was called off because Irizarry and another crew
member were arrested on the day the robbery was to occur
after police officers stopped Irizarry’s car and discovered a
bulletproof vest and a can of mace.
D. Arson.
In 1996, Russell Laviola informed Durso that he was
having difficulty collecting rent from tenants at a building
located at 214 Belvidere Avenue in Jersey City, New Jersey,
that Laviola owned. Durso responded by telling Irizarry to
visit the tenants with Laviola. Irizarry did so, and informed
the tenants that “he was involved with the house . . . [and]
wanted to get the rent.” App. at 2675. The tenants
7
apparently got the message because they thereafter paid
Laviola some of the delinquent rent. Laviola, in turn, gave
Irizarry $100 at Durso’s request.
However, the tenants moved out of the building about a
week later, and Laviola thereafter informed Durso that he
(Laviola) was having a difficult time selling the property.
Ever ready to volunteer a solution for a friend in need;
Durso responded by suggesting the problem could be
solved by burning the building down. Laviola agreed and
paid Durso between $2,000 and $5,000. Thereafter, on
March 18, 1996, Durso sent Irizarry and Looney to the
building where they used gasoline to incinerate the
building. App. at 2707, 2973. Thereafter, they went to
Carmine’s Restaurant where they informed Durso that they
had “burned the place down.” App. at 2973. However,
Laviola remained dissatisfied even though he collected
$40,000 in insurance proceeds, because the house did not
burn all the way to the ground.1
A couple of months later, someone known as “Red”
contacted Durso because he needed to dispose of his house
on Sherman Avenue in Jersey City. Durso had Irizarry,
Looney and Garry Biase, a friend of Looney’s, visit Red to
discuss the specifics. On June 17, 1996, Irizarry, Looney
and Biase drove to the property, poured gasoline “into the
bearing wall,” “let it soak in” and then set it on fire. App. at
2985. They then returned to Carmine’s Restaurant.
However, Durso later expressed his displeasure to Looney
because once again the house had not burned completely
down.
E. Several Murders.
1. Giancarlo Ravasi.
In 1991, Giancarlo Ravasi owed money to Ranieri and
several others. At one point, Ravasi borrowed money from
a third person to pay Ranieri. Around this time, Ravasi
went to Italy. He returned in the summer of 1993 and
1. Although Durso told Laviola he would send Irizarry back, there was no
testimony about whether Irizarry ever “finished the job.”
8
moved to New York where he eventually obtained
employment as a butcher at a supermarket in Brooklyn.
App. at 1030.
In late summer of 1993, Irizarry told Soto that he had to
“go do somebody because somebody was testifying in court
against one of his friends.” App. at 1150. He further
informed Soto that the target was a butcher in Brooklyn.
He also explained that he needed Soto’s help because Soto
was a known car thief “as well as a good driver,” app. at
1151, who could steal a car and drive Irizarry to Brooklyn.
In return for Soto’s participation, Irizarry offered Soto
$6,000 from his “take” and explained that it would be paid
“upon completion” by the people Irizarry was working for.
App. at 1153.
On September 24, 1993, at approximately 3:00 a.m., Soto
picked up Irizarry in a stolen van and drove him to
Brooklyn. When they arrived, they waited until they saw a
man fitting Ravasi’s description walking down the street
with a woman toward the supermarket where Ravasi
worked. As Ravasi turned the corner, Irizarry got out of the
van, walked up behind Ravasi and fired one fatal shot to
the back of Ravasi’s head at close range. Irizarry then fled
to Manhattan in the van. There, he and Soto abandoned
the van, and took separate trains back to New Jersey.
2. Joseph Marmora and Antonio Pavone.
In 1993, Durso’s cousin, Joseph Marmora, was spending
a lot of time with Ranieri and other crime figures from
Brooklyn, including Anthony Persichetti, who was also
known as “Big Tony.” Persichetti testified that Ranieri had
introduced him to Marmora in 1992, and that Marmora
wanted to get involved in criminal activities.
On December 30, 1993, Sammartino drove Irizarry to
Marmora’s apartment where Marmora let them in.
Marmora’s roomate, Pavone, was in the apartment. While
Sammartino and Pavone stayed in the apartment, Irizarry
and Marmora stepped out into the hallway to talk. “[A]
couple of minutes later,” Irizarry returned, holding
Marmora “by the back of the collar or shirt.” App. at 1448-
49. Irizarry made Marmora kneel by pointing a gun at him
9
as he told Sammartino to “find stuff to tie Joseph up with.”
App. at 1149-50. When Sammartino hesitated, Irizarry put
the gun in his face and told him “to hold the gun and point
it at Joe” while Irizarry retrieved “belts and ties” from the
apartment. App. at 1450-51. Irizarry then tied Marmora’s
hands behind his back and his ankles, “pulled a knife,” and
stabbed Marmora numerous times. App. at 1452-53.
Irizarry interrupted the stabbing long enough to walk over
to the couch where Pavone was praying, and shoot Pavone
in the head at close range.
In the meantime, Marmora somehow managed to break
free and “attack[ ] Elvis,” and they “began to wrestle
around.” App. at 1454. Marmora eventually “got off of Elvis
and staggered out of the room,” app. at 1454, only to be
followed by Irizarry who shot him three times. Apparently
not yet satisfied with the carnage he had thus far wreaked,
Irizarry then slit Marmora’s throat, leaving a wound that
was ten inches long and an inch deep that severed
Marmora’s right jugular vein. The subsequent autopsy
revealed a total of 48 stab and cutting wounds on
Marmora’s body.
Irizarry then returned to the apartment and told
Sammartino to wait in the car. About “five minutes or so”
later, Irizarry returned to the car “carrying an arm full of
clothes,” app. at 1456, and instructed Sammartino to drive
to an industrial area of Brooklyn where Irizarry threw the
clothes into a dumpster. App. at 1457.
Later that same night, Irizarry told Sammartino “that his
people were connected, and that if [Sammartino] were to
say anything” he “would end up dead no matter where” he
went. App. at 1457-58. Irizarry also told Sammartino that
if he did not say anything he could “make a lot of money,”
and he referred to an “old man” named Massimo. App. at
1458, 1459. Irizarry later told Sammartino that “the old
man was very pleased with what had happened.” App. at
1461.
Sammartino had borrowed the car he used to drive
Irizarry to Marmora’s apartment from Edward Pierce. After
the murders of Marmora and Pavone, Irizarry was “very
concerned . . . that Edward Pierce would say something to
10
the police because . . . a lot of people in the neighborhood
knew about what had happened.” App. at 1461. Irizarry
considered killing Pierce, but Sammartino rejected that
idea. Sammartino did, however, agree to “get rid of the car
. . . [i]n case [it contained traces] of any blood, [or other]
evidence.” App. at 1462.
On January 24, 1994, Sammartino and Pierce took the
car to an industrial area of Newark and set it on fire.
However, police arrived while it was burning and arrested
both of them. They eventually pled guilty to arson, but they
said nothing about the murders of Marmora and Pavone
“[o]ut of fear.” App. at 1465. Rather, Pierce told police that
he burned his car for insurance proceeds.
Durso became upset when he was told of Marmora’s
death. McGuiness asked Durso: “How does it feel? You
know, that Elvis supposedly is the one that took out Joey
Marmora and that’s your cousin?” App. at 3200. Durso
replied, “How do you think the door got opened?” App. at
3201.
3. Kyle Veale.
In late 1993, Kyle Veale borrowed $3,000 from Irizarry,
but failed to repay it. Irizarry told Bakhoury that the money
had come from “[t]he guys he’s connected with down at
[Carmine’s],” and asked him to talk to Veale about it. App.
at 2088-90. Bakhoury knew that Durso was one of the
“guys.” App. at 2089. Bakhoury did speak with Veale about
the loan and warned him not to “mess with Elvis.” App. at
2090. Bakhoury subsequently told Irizarry that Veale had
taken money out of a bank account that Bakhoury owned
jointly with Veale. Irizarry responded by telling Bakhoury to
“kick his ass.” App. at 2091.
On January 1, 1994, Irizarry and Bakhoury picked up
Veale at the latter’s apartment and drove to a local high
school to test some firearms and silencers. Bakhoury fired
a .22 caliber firearm and Irizarry fired a .9 mm. As they
tested the firearms, Irizarry came up behind Bakhoury,
pressed a gun to the back of Bakhoury’s neck and ordered
him to shoot Veale. Bakhoury did as ordered, and
continued shooting Veale until his bullets ran out — a total
11
of five times. Irizarry then took the murder weapon and
warned Bakhoury that his “prints [were] on it” so he better
stay quiet. App. at 2105-06. Irizarry also told Bakhoury
that he had to “learn to be tough because if Kyle gets over
on [him], everybody is going to get over on [him].” App. at
2106-07.
4. Jose Ruiz.
Irizarry was spending a lot of time with Jose Ruiz in early
1997. Ruiz apparently enjoyed the attention resulting from
his association with Irizarry. During this period, Irizarry
recruited Ruiz to participate in an armed robbery. Ruiz, in
turn, attempted to recruit two of his friends to help out, but
they refused.
However, the relationship between Irizarry and Ruiz
soured in February of 1997, after Irizarry told several
people that he suspected that Ruiz had burglarized his
apartment. This resulted in a change in Ruiz’ attitude
toward Irizarry, and Ruiz began trying to avoid Irizarry.
According to Riuz’ brother, Jose “didn’t want to be next to
[Irizarry],” “he was very scared about something.” App. at
3481-82.
Ruiz left his house with Irizarry on February 28, 1997,
and was never seen alive again. Ruiz’ body was found the
next day near a local high school, about two to three miles
from where Veale had been shot. Ruiz had been fatally shot
in the right ear at close range.
Irizarry later admitted killing Ruiz to Angelina Francolino
and Elizabeth Griesi. Griesi was then Irizarry’s girlfriend.
Irizarry explained to Griesi: “No spic is going to rob me and
I’m going to make an example.” App. at 3736.
Irizarry’s crime spree ended when he was arrested on
May 25, 2000. He told one of the arresting officers: “[y]ou
could run, but you can’t hide.” App. at 3932.
II. PROCEDURAL HISTORY
Following Irizarry’s arrest, a grand jury returned a nine-
count second superseding indictment against Durso,
12
Irizarry and Bakhoury. Irizarry was charged in seven of the
nine counts. Count One charged Durso, Irizarry and others
with conspiring to participate in the affairs of an enterprise
through a pattern of racketeering activity and the collection
of an unlawful debt, in violation of 18 U.S.C. § 1962(d);
Count Two charged Durso and Irizarry and others with
participating in the affairs of an enterprise through a
pattern of racketeering activity and the collection of an
unlawful debt, in violation of 18 U.S.C. § 1962(c) (the “RICO
counts”); Count Three charged Durso, Irizarry, Bakhoury
and others with conspiring to distribute and possess with
the intent to distribute 500 grams or more of cocaine,
contrary to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii), in
violation of 21 U.S.C. § 846; Count Four charged Durso and
Irizarry with conspiring to collect debts by extortionate
means, in violation of 18 U.S.C. § 894; Count Five charged
Durso and Irizarry with conspiring to commit arson and
committing arson affecting interstate commerce, in violation
of 18 U.S.C. §§ 844(i) and (2); Count Six charged Durso,
Irizarry and others with the murder of Jose Ruiz in aid of
racketeering in violation of 18 U.S.C. §§ 1959 and 2; and
Count Seven charged Irizarry with the use of a firearm in a
crime of violence, i.e., the murder of Jose Ruiz, in violation
of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2.
Following a trial on all of these charges, a jury returned
a special verdict finding Irizarry guilty on all counts.2 The
jury found that the government had proven twelve of the
thirteen racketeering acts charged in the two RICO counts.
Irizarry was thereafter sentenced to life imprisonment on
Counts One, Two and Six, concurrent prison terms of 240
months were imposed on Counts Four and Five; and a
prison term of 480 months was imposed on Count three.
2. Bakhoury pled guilty to Count Three, conspiracy to distribute and
possess with intent to distribute 500 grams or more of cocaine, on April
23, 2001. Durso pled guilty to Count One, RICO conspiracy, and also
agreed that he committed two of the thirteen predicate racketeering acts
set forth in the indictment, viz., act 10, conspiracy to collect debts by
means of extortion, and act 11(b), the arson of 214 Belvidere Avenue, in
Jersey City, New Jersey. The other crew members, Soto, Looney,
Sammartino and Farrell, were charged in separate indictments and
subsequently pled guilty to the charges in the indictments.
13
The court also imposed a consecutive sentence of 60
months on Count Seven. This appeal followed.
III. DISCUSSION
Irizarry asserts six claims of error. First, he argues that
the government failed to prove the existence of a single
ongoing enterprise and that it therefore improperly joined
separate and unrelated crimes for trial. Second, that there
was insufficient evidence to support the jury’s finding that
four murders charged as predicate acts were related to the
affairs of the enterprise. Third, that the district court
committed plain error by failing to instruct the jury that
motive was a necessary element of the offenses charged in
the indictment. Fourth, that the district court abused its
discretion in admitting evidence of uncharged crimes to
prove the RICO enterprise alleged in the indictment. Fifth,
that the district court abused its discretion in denying a
requested continuance. Lastly, he argues that the district
court’s failure to find prosecutorial misconduct was an
abuse of discretion. We will address each assignment of
error separately.
A. Failure to Prove a Single Enterprise Resulting in
Improper Joinder.
The Racketeer Influenced and Corrupt Organizations Act
makes it
unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, the
conduct of such enterprise’s affairs through a pattern
of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). RICO also criminalizes a conspiracy to
do any of these unlawful acts. 18 U.S.C. § 1962(d). To
establish a § 1962(c) RICO violation, the government must
prove the following four elements: “(1) the existence of an
enterprise affecting interstate commerce; (2) that the
defendant was employed by or associated with the
enterprise; (3) that the defendant participated in, either
14
directly or indirectly, in the conduct or the affairs of the
enterprise; and (4) that he or she participated through a
pattern of racketeering activity.” United States v. Console,
13 F.3d 641, 652-653 (3d Cir. 1993).
RICO defines an “enterprise” as “any individual,
partnership, corporation, association, or other legal entity,
and any union or group or individuals associated in fact
although not a legal entity.” 18 U.S.C. § 1961(4). The
Supreme Court has explained that an enterprise “is an
entity separate and apart from the pattern of activity in
which it engages,” and that its existence is proven “by
evidence of an ongoing organization, formal or informal,
and by evidence that the various associates function as a
continuing unit.” United States v. Turkette, 452 U.S. 576,
583 (1981). In United States v. Riccobene, 709 F.2d 214,
222 (3d Cir. 1983), overruled on other grounds by Griffin v.
United States, 502 U.S. 46 (1991)
we construed Turkette to require proof of each of the
three sub-elements referred to by the Court in this
passage, thus requiring the Government to prove: (1)
that the enterprise is an ongoing organization with
some sort of framework for making or carrying out
decisions; (2) that the various associates function as a
continuing unit; and (3) that the enterprise be separate
and apart from the pattern of activity in which it
engages.
United States v. Pelullo, 964 F.2d 193, 211 (3d Cir. 1992)
(citing Riccobene, 709 F.2d at 221-224). “These three issues
are questions of fact which, in the first instance, must be
resolved by the jury.” Riccobene, at 222. “[A]lthough the
proof used to establish the existence of an enterprise and a
pattern of racketeering may in particular cases coalesce,
proof of a pattern of racketeering activity does not
necessarily establish the existence of an enterprise.” United
States v. Console, 13 F.3d at 650 (citation and internal
quotations omitted). Nevertheless, “in the appropriate case,
the enterprise can be inferred from proof of the pattern.” Id.at 650 n.5 (citation omitted).
Irizarry claims that the “government improperly joined for
trial separate unrelated crimes since it failed to prove the
15
existence of a single ongoing criminal enterprise.” Irizarry’s
Br. at 31. He argues that the government “join[ed] in one
trial a number of separate crimes allegedly committed by
[him] over the course of many years and involving many
different unrelated individuals.” Id. at 43. He claims that,
since the government failed to prove the existence of a
single enterprise, “the joinder of separate crimes and
coconspiracies into one criminal trial was inherently
unfair,” and a new trial is required on all of the counts of
conviction. Id. at 44.
Irizarry’s argument conflates two related but distinct legal
claims. He conflates the issue of joinder under Fed. R.
Crim. P. 8 with the issue of whether the government proved
the existence of a single RICO enterprise. Nevertheless, in
an overabundance of caution, we will address the claim he
is actually raising as two separate claims, one based on
Fed.R.Crim.P. 8, and one based on whether the government
proved the existence of a single RICO enterprise.
(i). Improper Joinder.
To the extent that Irizarry is arguing that there was an
improper joinder, his argument is without merit.3 Federal
Rule of Criminal Procedure 8 governs joinder of offenses
and joinder of defendants. It states:
3. Irizarry’s counsel filed a pre-trial motion to “sever counts of the
Indictment on the grounds that the Government was simply alleging a
number of separate unrelated crimes not part of single enterprise.”
Irizarry’s Br. at 33. The district court denied that motion without
prejudice. The “denial of severance is committed to the sound discretion
of the trial judge.” United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.
1991) (citation omitted). In his Reply Brief, at 4, Irizarry says that we
should decide whether the district abused its discretion in denying his
severance motion. However, that issue is not set forth in his Statement
of Issues Presented On Appeal and is not pursued in the argument
section of his brief. Therefore, it is waived. Lunderstadt v. Colafella, 885
F.2d 66, 78 (3d Cir. 1989) (a “casual statement” cannot serve to preserve
an issue on appeal where it is contained in neither the statement of
issues on appeal nor the argument section of the brief). However, since
we conclude that the evidence was sufficient to establish a RICO
enterprise, it follows that the district court did not abuse its discretion
in denying Irizarry’s requested severance.
16
(a) Joinder of Offenses. The indictment or information
may charge a defendant in separate counts with 2 or
more offenses if the offenses charged — whether
felonies or misdemeanors or both — are of the same or
similar character, or are based on the same act or
transaction, or are connected with or constitute parts
of a common scheme or plan.
(b) Joinder of Defendants. The indictment or
information may charge 2 or more defendants if they
are alleged to have participated in the same act or
transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The
defendants may be charged in one or more counts
together or separately. All defendants need not be
charged in each count.
Fed.R.Crim.P. 8(a), (b). We make an “independent
determination” as to whether or not there was an improper
joinder of counts under Rule 8. United States v. Somers,
496 F.2d 723, 729 (3d Cir. 1974). If we determine that
counts were improperly joined, we must undertake a
harmless error analysis to see if prejudice resulted. United
States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992). Our
inquiry into whether offenses or defendants were properly
joined focuses upon the indictment, not upon the proof that
was subsequently produced at trial. Id.Irizarry’s focus on Rule 8(b) at first appears misguided
because Rule 8(b) authorizes joinder of defendants and
Irizarry is actually challenging the joinder of allegedly
unrelated offenses. Therefore, the plain language of Rule 8
suggests that he must rest his claim of misjoinder on Rule
8(a). However, we have held that Rule 8(a) “dealing with the
joinder of offenses, applies only to prosecutions involving a
single defendant” and that in a multi-defendant case such
as this, “the tests for joinder of counts and defendants is
merged in Rule 8(b).” United States v. Somers, 496 F.2d at729 n.8. Moreover, most courts have held that Rule 8(b)
applies exclusively to issues of joinder of multiple
defendants and that Rule 8(a) applies only in cases
involving a single defendant charged with multiple offenses.
See United States v. Eufrasio, 935 F.2d 553, 570 (3d Cir.
1991) (citing United States v. Kopituk, 690 F.2d 1289, 1312
17
(11th Cir. 1982). Therefore, Irizarry’s reliance on Rule 8(b)
is proper.4
Count One, the RICO conspiracy count, charged that
Durso, Irizarry and others, known and unknown, including
members and associates of an international criminal
organization known as, “La Cosa Nostra,” constituted an
enterprise whose principal purpose was to earn money
through the commission of various crimes including
murder, arson, robbery, cocaine distribution and the
extortionate collection of “debts.” Count One also charged
that Durso, Irizarry and others conspired to commit at least
two of thirteen racketeering predicates described in Count
Two. Count One also described a cocaine distribution trade
headed by Durso in which Irizarry was responsible for
purchasing cocaine and delivering it to Durso and in which
Irizarry conspired with Bakhoury to sell a quantity of
cocaine.
Count Two, the RICO substantive count, charged that
Irizarry, being employed by and associated with the
enterprise, participated in the affairs of the enterprise
through a pattern of racketeering activity which consisted
4. We did suggest in Eufrasio that Rule 8(a) might be the correct
standard for the joinder of multiple offenses against one defendant, even
in a case involving multiple defendants. We noted in dicta that “contrary
to the jurisprudence in other circuits, when a joinder of offenses charged
against the same defendant is challenged, the literal meaning of the Rule
requires the application of Rule 8(a), irrespective of whether multiple
defendants are involved in the case.” Eufrasio, 935 F.2d at 570 n.20.
However, we did not resolve the question of which Rule applied when a
defendant in a multi-defendant case challenges the joinder of offenses in
an indictment, because the results of our analysis would have been the
same under Rule 8(a) or 8(b). Id. at 570.
The difference between the standards is significant. Although the
standards of Rule 8(a) and Rule 8(b) are similar, in that they both
require a “transactional nexus” between the offenses or defendants to be
joined, Rule 8(a) is more permissive than Rule 8(b) because Rule 8(a)
allows joinder on an additional ground, i.e., when the offenses “are of the
same or similar character.” Eufrasio, at 570 n.20 (quoting Fed.R.Crim.P.
8(a)); see also United States v. McGill, 964 F.2d 222, 243 (3d Cir. 1992)
(referring to the “stricter, ‘same act or transaction’ standard of Rule
8(b)”).
18
of: the conspiracy, attempt and murder of Giancarlo Ravasi
(racketeering act one); the murder of Joseph Marmora
(racketeering act two); the murder of Antonio Pavone
(racketeering act three); the murder of Kyle Veale
(racketeering act four); conspiracy to commit arson and the
arson of a vehicle (racketeering act five); conspiracy to
commit armed robbery of an armored car (racketeering act
six); extortionate debt collection (racketeering act seven);
attempted robbery and robbery of a delicatessen
(racketeering act eight); cocaine distribution conspiracy
(racketeering act nine); conspiracy to collect debts by
means of extortion (racketeering act ten); conspiracy to
commit arson and arson of a residence located at 214
Belvidere Avenue, Jersey City (racketeering act eleven);
conspiracy to commit arson and arson of a residence
located at 293 Sherman Avenue, Jersey City (racketeering
act twelve); and the murder of Jose Ruiz (racketeering act
thirteen).
Count Three charged Durso, Irizarry and Bakhoury with
conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine. Count Four
charged Durso and Irizarry with conspiracy to collect debts
by extortionate means. Count Five charged Durso and
Irizarry with conspiracy to commit arson and arson
affecting interstate commerce. Count Six charged Durso
and Irizarry with the murder of Jose Ruiz in aid of
racketeering. Count Seven charged Irizarry with the use of
a firearm in a crime of violence, i.e., the murder of Ruiz.
This case is unique in that Irizarry, a defendant in a
multiple defendant RICO prosecution, is challenging the
joinder of offenses and not his joinder with other RICO
defendants. Nevertheless, we believe that the analysis in
cases where we have upheld the joinder of RICO defendants
is helpful to our inquiry. For example, in Eufrasio, three
defendants, Santo Idone, Mario Eufrasio and Gary Iacona
were found guilty of RICO violations (both substantive and
conspiracy), attempted extortion, and illegal gambling. 935
F.2d at 557. Eufrasio’s and Iacona’s RICO liability was
predicated on attempted extortion, illegal video poker
machine gambling and collecting unlawful debts. However,
Idone’s RICO liability was predicated on attempted extortion
19
and on a separate murder conspiracy that did not involve
Eufrasio or Iacona. Id. at 558.
Eufrasio and Iacona argued that their joinder as
defendants with Idone violated Rule 8(b) because they were
not connected with, or even aware of, the murder
conspiracy predicate charged against Idone. Their joinder
with him allegedly prejudiced them because the murder
charged against Idone “infected the entire trial with
evidence of uncharged Mafia crimes and the murder
conspiracy itself.” Id. at 566. They also alleged that the
joinder “exposed the jury to evidence of numerous mob
murders and attempted murders related to [Idone’s] murder
conspiracy and [a] . . . mob war” that had nothing to do
with them. Id. at 567.
In rejecting this claim, we noted:
Rule 8(b) provides substantial leeway to prosecutors
who would join racketeering defendants in a single
trial. The rule permits joinder of defendants charged
with participating in the same racketeering enterprise
or conspiracy, even when different defendants are
charged with different acts, so long as indictments
indicate all the acts charged against each joined
defendant (even separately charged substantive counts)
are charged as racketeering predicates or as acts
undertaken in furtherance of, or in association with a
commonly charged RICO enterprise or conspiracy.
United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir.
1982), cert. denied, 460 U.S. 1092 (1983). “[J]oinder
. . . of a conspiracy count and substantive counts
arising out of the conspiracy [is permitted], since the
claim of conspiracy provides a common link, and
demonstrates the existence of a common scheme or
plan.” United States v. Somers, 496 F.2d 723, 729-730
(3d Cir.) (emphasis in Somers, quoting Wright and
Miller, Federal Practice and Procedure § 144), cert.
denied, 419 U.S. 832 (1974).
935 F.2d at 567. Moreover, we agreed with the view of the
Court of Appeals for the Second Circuit announced in
United States v. Friedman, 854 F.2d 561 (2nd Cir. 1988).5
5. In Friedman, the court wrote:
The mere allegation of a conspiracy presumptively satisfies Rule
20
There, the court held that a RICO conspiracy charge
provides the required link to which we referred in United
States v. Somers. Eufrasio, 935 F.2d at 567.
After reviewing the indictment in that context, we
concluded that the strictures of joinder set forth in Rule
8(b) had not been violated by charging Idone with the
murder conspiracy predicate, but not charging Eufrasio
and Iacone “because, consistent with the law of joinder in
RICO cases, all the criminal acts charged against each
defendant, including the murder conspiracy implicating
Idone, were undertaken in furtherance of a single,
commonly charged racketeering enterprise and conspiracy.”
Id.Applying the Eufrasio rationale here, we conclude that
the superceding indictment did not improperly join
separate, unrelated crimes allegedly committed by Irizarry.
Rather, he was charged with a RICO substantive violation
and a RICO conspiracy violation, and all of the criminal
acts charged against him in the superceding indictment
were charged either as predicates for the racketeering
charge, or as acts undertaken in furtherance of a
commonly charged RICO enterprise. Therefore, the second
superseding indictment satisfies the “same act or
transaction” requirement of Rule 8(b).
Moreover, Rule 8(b) permits the joinder of RICO and non-
RICO counts in one indictment where the offenses charged
8(b), since the allegation implies that the defendants named have
engaged in the same series or acts or transactions constituting an
offense. The presence of a substantive RICO count under 18 U.S.C.
§ 1962(c), and of a RICO conspiracy count under 18 U.S.C.
§ 1962(d), further broadens the government’s power to charge
multiple defendants together. A RICO charge under § 1962(c)
necessarily incorporates allegations that each of the defendants
named was associated with or employed by the same enterprise, and
participated in the enterprise by engaging in at least two acts of
racketeering related to the enterprise. In short, by loosening the
statutory requirements for what constitutes joint criminal activity,
Congress limited the force of Rule 8(b) in such situations.
854 F.2d at 561 (quoting United States v. Castellano, 610 F.Supp. 1359,
1396 (S.D.N.Y. 1985)).
21
in the non-RICO counts are “also charged as racketeering
predicates in the RICO counts.” Eufrasio, 935 F.3d at 570.
That is precisely what the second superseding indictment
does. The non-RICO counts, i.e., Counts Three, Four, Five,
Six and Seven, charged Irizarry with violations of the same
criminal acts charged as racketeering predicates in the
RICO counts, Counts One and Two. The same evidence
needed to prove the racketeering predicates in the RICO
counts also prove the charges in the non-RICO counts.
Consequently, all of the criminal conduct charged against
Irizarry constituted a series of related acts in furtherance of
the commonly charged RICO enterprise and conspiracy,
and there was no misjoinder of separate, unrelated
offenses.
(ii). Government’s Failure to Prove the Existence of a
Single, Ongoing Criminal Enterprise.
Irizarry claims that the government initially posited a
larger RICO enterprise whose leader and chief lieutenants
were organized crime figures. However, according to
Irizarry, the government abandoned the original enterprise
theory during the trial and argued that the enterprise
consisted of Duso, Irizarry and underling crew members
when the government realized it could not prove the
enterprise it had charged in the indictment.
In pre-trial proceedings, Irizarry moved to dismiss the
indictment or, in the alternative, to sever the counts of the
indictment. The motion was based upon Irizarry’s claim
that the government was alleging a number of separate,
unrelated crimes and conspiracies that were not a single
enterprise. He also requested that the government proffer
the structure and hierarchy of the alleged enterprise.
Although the district court denied Irizarry’s motions, during
oral argument the government agreed to supply defense
Irizarry’s counsel with a list of co-conspirators. Accordingly,
several days before the trial, the government gave counsel
a list of forty-four co-conspirators. Irizarry claims that the
forty-four co-conspirators were individuals the government
intended to prove were members of the RICO enterprise.
The government’s list included co-conspirators Massimo
Ranieri, Anthony Rotolo and Rocco Errico. Ranieri, Rotolo
22
and Errico are allegedly involved with organized crime.
Looney testified Durso told him that Ranieri was a “made
member” of the Mafia. App. at 3000-01. Another of the
government’s witnesses, Anthony Persichetti, testified that
Ranieri was a high ranking member of the Lucchese crime
family and an associate of the Gambino crime family. App.
at 3330, 3337. However, McGuiness testified that Durso
told him that Ranieri was a high ranking member of the
Gambino crime family and was heir apparent to the Sicilian
wing of the Gambino crime family. App. at 3166, 3167.
Irizarry claims that Rotolo and Errico work for Joseph
“Pepe” LaScala, who is allegedly a member of the Genovese
crime family. Irizarry’s Br. at 36. LaScala appears on the
list of co-conspirators the government tendered to Irizarry.
Irizarry argues that the government went to trial under
the theory that Ranieri was the head of the enterprise and
that Rotolo and Errico were high ranking members. As
proof of that claim, Irizarry points to the government’s
opening statement:
Many witnesses will get up here and say Durso was
Elvis’ boss. Elvis worked for Durso and the evidence is
going to show past criminal jobs came down often
through Durso to Elvis Irizarry.
******************
You’re going to hear the name Massimo Ranieri.
Massimo Ranieri is someone Durso answered to.
You have Massimo Ranieri and you have Durso and
you have Irizarry and people with whom they worked.
Obviously you’ll hear about the overall situation in
which these crimes were committed, but you’ll hear at
great length the individual crimes that were committed.
App. at 950-952. Irizarry also notes that Durso had to pay
a weekly “tribute” of $500 to $600 to Ranieri, App. at 3198-
99, and that Durso admitted to McGuiness that Ranieri
was his boss. App. at 3166-68. Irizarry even testified that
Ranieri was “the boss . . . he was the man.”
However, Irizarry argues that the government could not
establish that Ranieri was behind all of the criminal activity
23
charged in the indictment and that the evidence failed to tie
Ranieri to Irizarry on the one hand, and to Rotolo and
Errico on the other. According to Irizarry, the government
therefore pulled a prosecutorial “bait and switch” well into
the trial. Irizarry claims that the prosecution began alleging
that the enterprise actually consisted of Durso, Irizarry and
the crew and that the Durso-Irizarry enterprise, at various
times, engaged in criminal activities for Ranieri on the one
hand and for Rotolo and Errico on the other hand. In
Irizarry’s telling, the fact that the government changed its
position as to the composition of the enterprise and then
claimed that the Durso-Irizarry enterprise engaged in
criminal activities for Ranieri, Rotolo and Errico shows that
the government was joining in one trial a number of
separate, unrelated crimes involving many different
individuals that Irizarry allegedly committed over the course
of many years. Thus, he claims that the government failed
to establish one RICO enterprise that was responsible for
all of the acts charged to Irizarry. Irizarry further argues
that because the government joined in one trial a number
of separate, unrelated crimes that he allegedly committed
with other individuals over the course of many years, the
testimony the government elicited about Ranieri’s, Rotolo’s
and Errico’s criminal activities was both highly prejudicial
and inadmissible.
The government of course denies that it changed horses
midstream by redefining the enterprise during trial. It
argues that it never alleged that Ranieri was the head of the
charged RICO enterprise. The government notes that the
second superseding indictment charged a criminal
enterprise consisting of “defendants Franco Durso, Elvis
Irizarry and others.” App. at 50. Neither Ranieri nor Rotolo
nor Errico are named in the second superseding
indictment. The government argues that it properly
charged, and proved beyond a reasonable doubt, that at
various times throughout its existence, the Durso-Irizarry
enterprise worked for and with other individuals, including
various associates of organized crime. Specifically, the
indictment alleged that “members or associates of an
international criminal organization known to its members
as La Cosa Nostra (this thing of ours) . . . at various times,
directed, approved, conspired in, and profited from the
24
criminal activities . . . committed by members of the
enterprise.” App. at 51. The government claims that
Ranieri, Rotolo and Errico are the members of La Cosa
Nostra who conspired with the enterprise to commit several
of the charged racketeering predicates.6 However, argues
the government, the fact that Ranieri, Rotolo and Errico
conspired with the enterprise to commit several of the
racketeering predicates does not make them members of
the enterprise they conspired with.7 On the contrary, claims
6. The racketeering predicates that Ranieri, Rotolo and Errico are alleged
to have conspired with the enterprise to commit are Racketeering Act Six
(conspiracy “to commit a robbery of an armored car involved in the
transportation of money to and from Kingsbrook Jewish Medical Center
in Brooklyn), and Racketeering Act Ten (conspiracy “to participate in the
use of extortionate means, that is, means involving the use of express
and implicit threats of violence, to collect and attempt to collect
extensions of credit.”).
7. Congress’s purpose in enacting RICO was to eradicate organized crime
by “bring[ing] the often highly diversified acts of a single organized crime
enterprise under RICO’s umbrella.” Eufrasio, 935 F.2d at 566.
Accordingly, “separately performed, functionally diverse and directly
unrrelated predicate acts and offenses will form a pattern [of
racketeering] under RICO, as long as they all have been undertaken in
furtherance of one or another varied purposes of a common organized
crime enterprise.” Id. Moreover, a RICO enterprise may engage in a
pattern of racketeering activity that consists of separate and distinct
conspiracies. United States v. Pungitore, 910 F.2d 1084, 1099-1101,
1134-35 (3d Cir. 1990). The government can prosecute a series of
different conspiracies in a single RICO count so long as all of the
different conspiracies relate to the affairs of a single enterprise.
Riccobene, 709 F.2d at 224-25. As we have said, “Congress intended that
a series of agreements that under pre RICO law would constitute
multiple conspiracies could under RICO be tried as a single enterprise
conspiracy if the defendants have agreed to commit a substantive RICO
offense.” Id. (citation and internal quotations omitted); see also United
States v. Ruggiero, 726 F.2d 913, 923 (2d Cir. 1984) (“[A] RICO
conspiracy under 18 U.S.C. § 1962(d), supported by predicate acts of
racketeering activity that in themselves are conspiracies” does not
“violate the principle of Kotteakos v. United States, 328 U.S. 750 (1946),
which prohibits conviction of multiple conspiracies under an indictment
charging a single conspiracy.”).
However, “the RICO conspiracy and the predicate conspiracy are
distinct offenses with entirely different objectives.” Pungitore, 910 F.2d at
25
the government, the enterprise, as charged and proven, had
a defined framework, headed by Durso and composed of
Irizarry and the underling members of the crew. This
enterprise was shown to function as a continuing unit
which committed crimes on its own and which conspired
with others, including members of organized crime, to
1135. “[T]he objective of a RICO conspiracy is to assist the enterprise’s
involvement in corrupt endeavors,” whereas the “objective of the
predicate conspiracy is confined to the commission of a particular
substantive offense.” Id. (citation and internal quotations omitted).
Because of this distinction, a person may join a predicate conspiracy and
agree to commit a substantive offense but not be RICO co-conspirator
and not commit a substantive RICO offense. In Riccobene, the RICO
enterprise was a Philadelphia crime family. 709 F.2d at 216, 224. Of the
eight racketeering predicates charged, three were connected with the
enterprise’s dealings with a car dealership. Id. at 217. The dealership’s
general manager testified that he borrowed money from a member of the
RICO enterprise and then agreed to lend it to someone else “at
unlawfully high interest rates.” Id. at 217-18. When the borrower could
not repay the loan, the general manager and the enterprise threatened
him. Id. at 218. The threat “was the basis for the racketeering acts of
extortionate credit and unlawful debt collection” against one of the
members of the enterprise. Id. The general manager and the enterprise
also agreed to fake a robbery at the dealership so that the general
manager could collect money from the dealership’s insurance carrier and
pay off his debts to the enterprise. As part of the scheme, the general
manager agreed to give a car free of charge to a member of the enterprise
and alter the dealership’s books to show that the enterprise member
paid cash for the car. Id. This scheme was “the basis for the mail fraud
claim against [the enterprise] as a predicate offense to the RICO
conspiracy.” Id.Although the general manager conspired with enterprise members to
commit substantive predicate offense, he was not a member of the
Philadelphia crime family and was not charged with a RICO substantive
offense or a RICO conspiracy offense. He was charged, however, in a
separate indictment. See United States v. Brown, 583 F.2d 659. He was
convicted of extortionate debt collection and conspiracy to commit
extortionate debt collection for the part he played in borrowing, lending
and collecting money and of mail fraud for staging the robbery at the
dealership. Nonetheless, evidence regarding the general manager’s
criminal activity with the enterprise was relevant to and admissible
against the RICO defendants because he had participated with them in
committing three racketeering predicates.
26
commit crimes on their behalf.8 As the government puts it,
“[T]he enterprise functioned as an independent contractor
that was willing, ready and able to perform criminal tasks
for other criminals.” Government’s Letter Br. at 2-3.
In order to resolve these conflicting theories on the roles
allegedly played by Ranieri, Rotolo and Errico, we must
examine the testimony about key individuals involved in
Irizarry’s criminal activities in some detail.
(1). Massimo Ranieri.
There were thirty-one references to Ranieri during the
government’s case-in-chief. Each is listed separately below.
1. Fabio Ravasi testified that he visited a man named
“Massimo” to deliver money on behalf of his father,
Giancarlo Ravasi. App. at 1093. Giancarlo Ravasi’s
murder was charged as racketeering act one;
2. Sammartino testified that after the Marmora
murder (racketeering act two) Irizarry threatened
Sammartino by telling him that if he said anything
about the murder, he would end up dead. Sammartino
also testified that Irizarry “made references to an old
man.” App. at 1458-59. Sammartino later testified that
“the old man” is a reference to Ranieri. App. at 1578;
3. Sammartino testified that Irizarry told him “[t]hat
the old man was highly connected, and that he was
powerful and working with him, we could make a lot of
money.” App. at 1461;
4. Sammartino testified that when Irizarry recruited
him for the armored car robbery at the Jewish Medical
8. The government claims that the Durso-Irizarry enterprise did not just
conspire with organized crime figures to commit crimes on their behalf,
but also conspired with others. As examples, the government noted that
Laviola conspired with Durso to have the enterprise burn down Laviola’s
house in exchange for $2,000 to $5,000. Irizarry and Looney carry out
the aforementioned arson. Later, a person named “Red” contacted Durso
because Red wanted to have his house burned down. Durso agreed and
had Irizarry, Looney and Gary Biase, Looney’s friend, burn down Red’s
house.
27
Center in Brooklyn (racketeering act six) Irizarry stated
that the “old man” thought “this is a good thing.” App.
at 1467;
5. Sammartino testified that Ranieri was present
during a discussion about the armored car robbery at
the Jewish Medical Center. App. at 1578;
6. Sammartino testified that he saw Ranieri at
Durso’s pizzeria around 1993. App. at 1578-79;
7. Pierce testified that Durso once told him that
Ranieri was Durso’s godfather — in a “religious”
context — and that he noticed that Durso “was very
respectful toward[ ] him.” App. 1597-98;
8. Pierce testified that Irizarry referred to Ranieri as
“the boss; that he was the man.” App. at 1600;
9. Pierce testified that when Ranieri was going to visit
Durso’s pizzeria, the employees “had to clean up the
pizzeria . . . [and] were told to leave.” App. at 1601;
10. Pierce testified that he once drove Durso to
Brooklyn to meet with Ranieri, but that he did not
know what the meeting was about. App. at 1603-05;
11. Farrell testified that he once saw Ranieri at
Durso’s pizzeria. App. at 2750-51, 2891;
12. Farrell testified that he once accompanied Irizarry
to Brooklyn to meet with Ranieri. App. at 2752-53;
13. Looney testified that Durso told him that he
borrowed money from Ranieri to open a club in
Manhattan. App. at 3000;
14. Looney testified that he once saw Ranieri at
Durso’s pizzeria. He also testified that Durso told
Looney that Ranieri “was never to know that Franco
[Durso] or anybody, even Elvis, was involved in drugs
ever.” App. at 3001-02, 3128;
15. Looney testified that numerous phone calls were
made to and from Durso’s bar between Durso and
Ranieri. App. at 3003;
16. McGuinness testified that Durso told him that
Ranieri “was his boss and he was next in line to take
28
over the group” — “the Sicilian wing of this family, the
Gambino family.” App. at 3167;
17. McGuinness testified that Durso told him that
“Franco [Durso] ran the show here [New Jersey] for him
[Ranieri]”; “[t]hat he [Durso] worked for Massimo
[Ranieri].” App. at 3168;
18. McGuinness testified that Durso sent a “tribute”
of $500-$600 to Ranieri each week; a tribute is “[w]hen
you pay somebody to look over you . . . [o]n disputes
and stuff.” App. at 3197-98;
19. McGuinness testified that he once approached
Durso because a man he knew, as “Timmy,” had gotten
“stiffed” on a bet he made “with some bookmaker in
New York.” In response, Durso brought McGuinness
and Timmy to meet Ranieri in Brooklyn. Ranieri spoke
with Timmy alone and “[a] few days later [Timmy] got
his money.” App. at 3201-03;
20. Persichetti testified that he met Ranieri when he
was 16 years old and that the two developed a “very
close” criminal relationship. App. at 3324;
21. Persichetti testified that the first crime Ranieri
ever asked him to do was “to go to Syracuse and kill
somebody” in 1982; he did it. He explained that it had
to do with “something about money.” App. at 3325-29;
22. Persichetti testified that he believed Ranieri was
in the Lucchese crime family. App. at 3330;
23. Persichetti testified to making a bomb with
Ranieri to blow up a laundromat. App. at 3331-34;
24. Persichetti testified to visiting a pizzeria owner
with Ranieri to collect money through extortionate
means. App. at 3332;
25. Persichetti testified that Ranieri was friends with
John and Joe Gambino of the Gambino crime family.
App. at 3337;
26. Persichetti testified that Ranieri once asked him
to burn down a pizzeria in Brooklyn, but they never
followed through with it. App. at 3339;
29
27. Persichetti testified that he extorted money on
behalf of Ranieri. App. at 3339-40;
28. Persichetti testified that Ranieri was a regular
patron of Café Venezia in Brooklyn, Café Sicilia in
Queens, Café Italia in Queens and Vinnie’s Café in
Ridgfield. App. at 3345-47;
29. Persichetti testified that in 1992, Ranieri
introduced him to a friend, Joseph Marmora.
Persichetti recalled that Marmora was interested in
buying a gun and over time it seemed as if Marmora
was getting to know more and more people in
Brooklyn. App. at 3349-52;
30. Persichetti testified that in the late 1980s, Ranieri
and he stopped being as close as they had been
because Persichetti joined the Gambino crime family
and that Persichetti was not interested in joining that
family. As a result of Persichetti’s association with the
Gambino crime family, he was doing less work with
Ranieri. App. at 3353-55; and
31. Persichetti testified that he often saw Durso with
Ranieri. App. at 3358.
(2). Anthony Rotolo.
There were four references to Rotolo during the
government’s case-in-chief. First, Farrell testified that
Irizarry said that he collected money for Rotolo. App. at
2761. Second, Looney testified that he also collected money
for Rotolo. App. at 2965-66. Third, Looney testified that
John Yengo “[o]wed money to Franco [Durso], . . . The
Guinea [i.e., Rotolo], . . . [and] Mike Scurti.” App. at 2989-
90. Looney explained that when Yengo received a
settlement check and paid only Scurti, Irizarry “beat[ ] his
ass.” App. at 2989-90. Fourth, while explaining that Durso
lent money on his behalf, McGuiness testified that Durso
told him he also “got money from Tony [Rotolo].” App. at
3195-96. Although McGuiness could not say “for sure” that
Rotolo lent money through Durso, he did testify that Durso
told him, “Yeah, I got money from Tony.” App. at 3195-96.
30
(3). Rocco Errico.
There were three references to Errico during the
government’s case-in-chief. A man named “William
Garretson” testified that Errico was involved in illegal
gambling. App. at 2900. Garretson testified that in late
1998, he owed approximately $36,000 to Errico but was
unable to pay.9 App. at 2905-06. Consequently, Errico and
Irizarry paid Garretson a visit. App. at 2906. During that
encounter, Errico told Garretson that, from now on,
Garretson should make his weekly payments to Irizarry.
App. at 2906-07. From late 1998 until approximately May
2000, Irizarry collected the debt. App. at 2907-08.
Second, Garretson’s cousin, Vito Goglucci, testified that
he borrowed $6,000 from Errico in 1996 to help Garretson
pay his debt to Errico. App. at 2932-36. For about one
year, Goglucci made the payments on the loan, but then
transferred responsibility for repayment to Garretson. App.
at 2936-37. In late 1998, Errico contacted Goglucci
because Garretson was not making the payments. App. at
2937-38. Errico told Goglucci that he would have to start
making payments on the $8,000 balance and that
“someone new” would be collecting the money. App. at
2938-39. Irizarry then contacted Goglucci and began
collecting the payments. App. at 2940.
Third, while explaining that he gave money to Durso for
Durso to lend out on his behalf, McGuinness testified that
Durso told him “he borrowed money from Rocky [Errico].”
App. at 3195-96.
As noted, Irizarry’s claim is that the government initially
began this prosecution under the theory that Ranieri
headed the RICO enterprise and that Rotolo and Errico
were high-ranking members. Irizarry contends that after all
of the testimony about Ranieri, Rotolo and Errico was
elicited, it became apparent to the government that it could
not prove any connection between Ranieri on the one hand,
and Rotolo and Errico on the other. Consequently,
9. Garretson’s debt was originally incurred in 1996. It was a gambling
debt that he owed to a sports bookmaker named Enrico Zamora.
However, Zamora transferred the debt to Errico. App. at 2905.
31
according to Irizarry, the government switched its
enterprise theory and posited a smaller enterprise that was
composed of Durso, Irizarry and the crew.
However, our examination of the record does not support
Irizarry’s claim. As the government has pointed out,
Ranieri, Rotolo and Errico are not even named in the
second superseding indictment.10 Irizarry’s contention that
the government alleged that Ranieri was the head of the
enterprise and that Rotolo and Errico were high-ranking
members is, we believe, based on his misunderstanding of
the government’s overarching theory of the case.
Admittedly, Ranieri, Rotolo and Errico were on the list of
co-conspirators the government provided before trial.
However, the fact that the government regarded them as co-
conspirators in a RICO prosecution does not mean that the
government alleged that Ranieri was the head of an
enterprise or that Rotolo and Errico were his lieutenants.
On the contrary, the government’s theory was that the
Durso-Irizarry enterprise conspired separately and at
different times with Ranieri, Rotolo and Errico to commit
crimes on behalf of Ranieri, Rotolo and Errico. In other
words, the government alleged that the Durso-Irizarry
enterprise conspired separately with Ranieri, Rotolo and
Errico to commit several of the charged racketeering
predicates.11 Irizarry’s claim that the government changed
its enterprise theory in media res is simply a reflection of
his failure to realize that the government can prosecute a
series of different predicate conspiracies in a single RICO
count. This can include persons who are not members of
the enterprise, but who conspire with the enterprise to
commit predicate offenses as long as the predicate
conspiracies relate to the affairs of a single RICO enterprise.
See n.6, supra.
Thus, if the predicate conspiracy relates to the affairs of
a RICO enterprise, it can be charged as part of that
10. Of course, the fact that they are not named is not necessarily a point
in the government’s favor as it could support Irizarry’s claim that the
government improperly elicited testimony regarding individuals without
connecting him to them through proof of the scope of the enterprise.
11. See n.5, supra.
32
enterprise’s pattern of racketeering activity in a RICO
prosecution even though not all co-conspirators are
actually members of the charged RICO enterprise. See
Pungitore, 910 F.2d at 1134-35. Since proof of a pattern of
racketeering activity (i.e., proving two or more racketeering
acts, 18 U.S.C. § 1961(5)), is necessary to establish a RICO
violation, see Console, 13 F.3d at 652-653, evidence of co-
conspirators in a predicate conspiracy constitutes direct
evidence of the charged offense and it is therefore
admissible to prove the charged RICO violation. See United
States v. Cross, 308 F.3d 320 & n.19 (3d Cir. 2003)
(evidence of acts that directly prove the charged offense is
“intrinsic” and admissible).
Here, the majority of the thirty-one references to Ranieri
and all of the references to Rotolo and Errico related to
their involvement with the charged RICO enterprise.
Accordingly, to the extent that Irizarry is arguing that
testimony about interactions with the Durso-Irizarry
enterprise was inadmissible, that argument is without
merit.
The government concedes that Ranieri was Durso’s boss.
However, that does not mean that the government originally
attempted to prove that Ranieri was the boss of the charged
enterprise. Although Durso may have been beholden to
Raineri, the command structure and organization of the
charged and proven enterprise consisted of Durso, as the
head, Irizarry, as his lieutenant, and the rank and file
members of the crew. Ranieri was apparently a powerful
and highly-placed organized crime figure whose interests
had to be protected and serviced by the Durso-Irizarry
enterprise whenever Ranieri called upon it. It is in that
sense that Ranieri was Durso’s “boss.”
As is evident from the summary we have set forth above,
the majority of references to Ranieri during the
government’s case-in-chief directly related to his dealings
with the Durso-Irizarry enterprise and are relevant to his
relationship to Durso. This is exemplified by Fabio Ravasi’s
testimony that his father, Giancarlo Ravasi, owed money to
Ranieri as set forth above. In the government’s view, Fabio’s
testimony established a motive for Ranieri to hire the
charged enterprise to murder Giancarlo Ravasi. Ranieri was
33
also mentioned as encouraging the enterprise’s planned
armored car robbery at the Jewish Medical Center in
Brooklyn, and other testimony tied him to the Marmora
murder. As noted above, Sammartino testified that, after
that murder, Irizarry made references to “the old man,” i.e.,
Ranieri, and warned that Sammartino would wind up dead
if he said anything about the Marmora slaying.
In addition, Persichetti testified that Ranieri introduced
him to Marmora and he recalled that Marmora wanted to
do work for individuals in Brooklyn and that he was getting
to know more people there. The government’s theory is that
Irizarry killed Marmora to eliminate the possibility that
Marmora might compete with Ranieri and hurt Ranieri’s
business. These references to Ranieri were, therefore, also
relevant to proving that he engaged in predicate
conspiracies with the enterprise. Accordingly, the district
court did not err in admitting that testimony.
Although Irizarry broadly argues that all references to
Ranieri were inadmissible because the government changed
its theory of the composition of the enterprise, his major
complaint appears to center on those references to Ranieri
that had nothing to do with Ranieri’s direct dealings with
the enterprise. He argues that such references were unduly
prejudicial and that they denied him of a fair trial.
Specifically, he now objects to the testimony the
government elicited from various witnesses about Ranieri’s
ties to organized crime and the testimony from Anthony
“Big Tony” Persichetti about Persichetti’s own criminal
activities with Ranieri.12
We are also troubled by the admission of evidence that
was unrelated to any of Ranieri’s dealings with the charged
Durso-Irizarry enterprise. Persichetti testified that he
engaged in a number of criminal activities with Ranieri
beginning in 1980 and ending sometime in the late 1980s,
12. Irizarry claims that Persichetti is “an admitted murder and member
of organized crime who had cooperated with the Government and
testified in a number of prior federal prosecutions, and who was serving
a lengthy prison term as a result of a prior plea negotiation.” Irizarry’s
Letter Br. at 3. The government does not dispute Irizarry’s
characterization of Persichetti.
34
including murder, debt collection and arson.13 Persichetti
also testified that Ranieri was a high-ranking member of
the Lucchese crime family and an associate of the Gambino
crime family. Persichetti explained the structure and
protocol of an organized crime family and testified that
because of Ranieri’s position in organized crime, Ranieri
had meetings with other leaders and high-ranking members
of organized crime families. Persichetti said that he began
doing less work for Ranieri in the late 1980s after joining
the Gambino crime family. According to Persichetta, Ranieri
approached him and said that he wanted to get involved
with the notorious John Gotti. Finally, Persichetti testified
that he had only “heard of ” Irizarry and did not know him
personally. App. at 3320. McGuiness testified that Durso
told him that Ranieri was a high-ranking member of the
Gambino crime family and the heir apparent to the Sicilian
wing of that family. Looney testified that Ranieri was a
“made” member of the Mafia. None of this testimony had
anything to do with Ranieri’s interactions with the charged
enterprise.
This evidence about Ranieri’s criminal acts that are
unrelated to the enterprise and to his connections to
organized crime families could only serve to demonstrate
that Irizarry was connected to criminals, and that, by
inference, Irizarry was a criminal and an evil one at that.
Such references are not only improper, they are prejudicial.14
However, Irizarry never objected to this evidence during
trial. He did object to Persichetti being called as a witness,
13. As we noted earlier, Persichetti testified that he met Ranieri when he
was 16 years old and that the two developed a “very close” criminal
relationship; Persichetti testified that the first crime Ranieri asked him
to do was “to go to Syracuse and kill somebody” in 1982; he testified to
making a bomb with Ranieri to blow up a laundromat; and he testified
to visiting a pizzeria owner with Ranieri to collect money through
extortionate means.
14. Of course we recognize that, even by his own admission, Irizarry was
an unsympathetic individual who was neither a model citizen, nor even
a law abiding one. However, his trial was governed by the same rules
that govern all criminal trials. Those rules impose carefully reasoned and
articulated limitations on attorneys who are, after all, officers of the
court.
35
but that objection was based upon the fact that Irizarry did
not know Persichetti. The challenge Irizarry makes here, is
being raised for the first time on appeal. Accordingly, we
review only for plain error. See Fed.R.Crim.P. 52(b); United
States v. Oser, 107 F.3d 1080, 1088 (3d Cir. 1997). In order
to find plain error, we must find (1) an error (2) that is plain
and (3) affects substantial rights. United States v. Knobloch,
131 F.3d 366, 370 (3d Cir. 1997) (citing United States v.
Olano, 507 U.S. 725, 732 (1993)). In most cases, an error
affects substantial rights if it is prejudicial, i.e., if it affected
the outcome of the district court proceedings. United States
v. Barbosa, 271 F.3d 438, 454 (3d Cir. 2001) (citation and
internal quotations omitted). Moreover, the defendant bears
the burden of demonstrating prejudice. Id. (citation
omitted). Although it is within our discretion to correct the
plain error, we do so only if the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. Knobloch, 131 F.3d at 370 (citation and
internal quotations omitted).
Despite our belief that it was error to admit testimony
about Ranieri that was completely unrelated to his dealings
with the enterprise, and our concern for trial tactics
underlying such testimony, we decline to find plain error
because of the overwhelming evidence of Irizarry’s guilt.
Given the strength of that evidence, we conclude that the
inadmissible evidence elicited from Persichetti did not
seriously affect the fairness, integrity or public reputation
of judicial proceedings.15
15. Despite our holding that the strength of the evidence against Irizarry
defeats a claim of plain error, we find it necessary to once again caution
against the dangers of eliciting this kind of evidence and the propriety of
admitting it. The kind of visceral reaction that nearly all jurors will have
to irrelevant references to such notorious figures as the members of the
Gambino crime family can poison the deliberative well to an extent that
will fatally undermine the integrity of any subsequent conviction. Such
evidence serves only to unfairly tar a defendant in front of the jury.
Moreover, “[a]lthough the government will hardly admit it, the reasons
proffered to admit [such] evidence . . . is often mixed between an urge to
show some other consequential fact as well as to impugn the defendant’s
character”. United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992).
36
Finally, Irizarry appears to argue that it was improper for
the government to cross-examine16 him about his
relationship to Ranieri once the government conceded that
Ranieri was not a member of the alleged enterprise.
However, as we have noted, the government never alleged
that Ranieri was a member of the enterprise. Rather, the
government’s theory was that the enterprise conspired with
Ranieri and committed crimes on Ranieri’s behalf, and at
his behest.
In any event, on cross-examination, Irizarry
acknowledged that he was friendly with Ranieri, and that
Irizarry had obtained legitimate employment for him.
However, Irizarry insisted that he had not spoken to Ranieri
in about fourteen months. There was nothing improper in
this questioning because it directly pertained to charged
activities of the enterprise even though Ranieri was not
alleged to be a member of it. Moreover, evidence had
already been introduced that showed that Irizarry and the
enterprise engaged in criminal activities on Ranieri’s behalf.
Therefore, it was permissible for the government to inquire
into Irizarry’s relationship with Ranieri. Cf. United States v.
16. Irizarry also claims that the following exchange between the
government and him during his cross-examination was improper:
Q: You’re the new Persichetti, aren’t you?
A: No.
Q: What are you?
A: No.
Q: What are you?
A: Absolutely No.
Q: He went and you came in?
App. at 4389. Irizarry claims that though the transcript shows a
question mark at the end of the last question, the government was
making a declarative statement. We have no way of determining the
truth of that allegation, and counsel for Irizarry did not object while
these questions were being posed. Although the inquiry certainly appears
inartful, it does not strike us as so prejudicial as to rise to the level of
plain error. Moreover, Irizarry does not now suggest how this inquiry did
prejudice him, or why it amounts to plain error.
37
O’Leary, 739 F.2d 135, 136 (3d Cir. 1984) (recognizing that
even evidence of a defendant’s and a witness’s prior bad
acts was admissible to show, inter alia, the defendant’s
familiarity with the witness).
Irizarry also argues that testimony the government
elicited from various witnesses pertaining to Rotolo and
Errico was inadmissible once the government realized it
could not prove that they were high-ranking members of
the charged enterprise. However, just as the government
never charged that Ranieri was the head of the
organization, the government never charged that Rotolo and
Errico were high-ranking members of the organization. At
the risk of redundancy, we again state that the
government’s theory was that the enterprise conspired with
Rotolo and Errico to commit crimes on their behalf.
Testimony pertaining to Rotolo and Errico was clearly
related to their relationship to the enterprise, and was
therefore admissible.
Farrell and Looney testified that Irizarry and Looney (both
members of the enterprise) collected money for Rotolo. The
relevance of that evidence is self evident. It established an
activity of the criminal enterprise and the charged
racketeering activity specifically included extortionate debt
collection on behalf of the enterprise and others. Similarly,
McGuinness’s testimony that Rotolo gave money to Durso,
and that Durso loaned money on behalf of others,
supported a reasonable inference that the enterprise also
provided loansharking services for Rotolo. As noted above,
Looney testified that Yengo owed Durso, Rotolo, and Scurti
money, and that he (Yengo) was beaten because he repaid
someone other than Durso. This also established the
enterprise’s extortionate debt collection practices. Therefore,
each of the references to Rotolo were relevant to his
interactions with the enterprise.
In addition to the references to Rotolo by Farrell, Looney
and McGuiness, the government also asked Irizarry about
his relationship to Rotolo on cross-examination without
objection. The questioning included an inquiry into whether
Rotolo was a guest at Irizarry’s wedding and whether
Irizarry ever collected debts for Rotolo. Irizarry
acknowledged that Rotolo was at his wedding and that he
38
knew that Rotolo was in the money-lending business, but
denied that he collected debts for him.17 The government’s
cross-examination of Irizarry regarding his knowledge of
Rotolo’s extortionate activities was relevant to establishing
whether Irizarry had collected debts for him.18 The
relevance of Rotolo’s presence at Irizarry’s wedding is far
more questionable given other testimony that established a
relationship between the two. However, it was admitted
without objection, and since it does support an inference
that Rotolo trusted Irizarry, we can not conclude that it
constituted plain error.
Irizarry argues that the testimony about Garretson’s and
Goglucci’s debts to Errico was completely unrelated to
Errico’s relationship with the Durso-Irizarry enterprise. We
disagree. This testimony shows that Errico availed himself
of the activities of the enterprise. More specifically, it
establishes that he used Irizarry to collect debts, and it is
therefore evidence of the precise activity alleged in the
indictment. Furthermore, McGuinness’s testimony that
Durso borrowed money from Errico was directly related to
Errico’s interactions with the enterprise. McGuinness
testified that the enterprise loaned money on behalf of
others. This testimony, coupled with Durso’s statement that
he borrowed money from Errico, supported the reasonable
inference that the enterprise loaned money on behalf of
Errico, and was therefore probative of the enterprise’s
criminal activities.
17. We agree that the inquiry into attendance at the wedding was
questionable given the weight of more appropriate evidence that
established a relevant nexus between Irizarry and Rotolo without the
danger of tarring Irizarry with guilt by association. However, that
testimony clearly does not constitute plain error.
18. The government also asked Irizarry whether he visited Rotolo
because of threats Irizarry made to Mike Della Rosa, a union shop
steward who worked with Irizarry at a construction site. Apparently,
Irizarry was annoyed because Della Rosa was taking credit for getting
Irizarry into the union, but Irizarry refused to give Della Rosa credit for
it. Irizarry admitted that he spoke to Rotolo, but could not remember
their conversation. Inquiry into this during cross-examination of Irizarry
was additional evidence of the kind of relationship Irizarry had with
Rotolo.
39
Finally, during cross-examination, the government asked
Irizarry, without objection, about his friendship with Errico.
Irizarry admitted that Errico was his best man at his
wedding. He also admitted that he collected money for
Errico as a favor, but denied knowing that there was
interest involved or that the debt was illegal. Given the
evidence that Irizarry and the enterprise carried out
criminal activities on Errico’s behalf, it was appropriate for
the government to cross-examine Irizarry regarding his
collection efforts on behalf of Errico. Moreover, as with the
testimony regarding Rotolo’s presence at Irizarry’s wedding,
we can not conclude that the court committed plain error
in admitting testimony that Errico was Irizarry’s best man.
For all of the above reasons, we find that Irizarry’s claim
that the government changed the theory of the enterprise
after the trial began and prosecuted a number of separate,
unrelated crimes that Irizarry committed over the course of
the years with many separate individuals in one trial is
without merit.
B. Insufficient Evidence to Support the Jury’s
Finding that All of the Murders Committed by Irizarry
Related to the Affairs of the Enterprise.
The jury returned a special verdict sheet indicating that
it found Irizarry guilty on all counts charged against him.
The jury also found that the government had proven twelve
of the thirteen racketeering predicate acts charged in the
two RICO counts. The twelve RICO predicates included five
murders. These were the murders of Ravasi, Veale, Ruiz,
and the joint murders of the Marmora and Pavone. Irizarry
does not challenge the sufficiency of the evidence to
support the jury’s findings that he committed the five
murders. Nor does he challenge the sufficiency of the
evidence to support any of the other racketeering predicates
the jury found. Indeed, he does not even challenge the
sufficiency of the evidence that the Ravasi murder and the
seven other predicate racketeering acts were related to the
enterprise. Instead, he argues that even if we reject his
joinder argument under Rule 8, the government failed to
40
prove that the Marmora, Pavone, Veale and Ruiz murders
were related to the affairs of the enterprise.19
His argument goes to the fourth element of a RICO
charge. To establish that a defendant agreed to, or did,
conduct or participate in the affairs of an enterprise
through a pattern of racketeering, “the government must
show that the [defendant] is enabled to commit the
predicate offenses solely by virtue of his position in the
enterprise or involvement in or control over the affairs of
the enterprise; or . . . that the predicate offenses are related
to the activities of that enterprise.” United States v.
Jannotti, 729 F.2d 213, 226 (3d Cir. 1984) (citation and
internal quotations omitted).
Given Irizarry’s role in the enterprise, we believe that the
Marmora, Pavone, Veale and Ruiz murders clearly related
to the affairs of the enterprise. The government charged
and proved that the major purpose of the enterprise was “to
earn money through the commission of, among other
crimes, murder, arson, robbery, cocaine distribution, and
the collection of debts through means of extortion.” Second
Superseding Indictment, App. at 50. Evidence of these
murders clearly established that Irizarry’s principle
function in the enterprise was that of enforcer. Indeed, his
overwhelming value to the enterprise was his “muscle.” A
review of the four challenged murders plainly demonstrates
that all of them related to the affairs of the enterprise, and
Irizarry’s role in it.
(i). The Veale murder.
Irizarry argues the Veale murder was not related to the
affairs of the enterprise because there was no proof that
19. Ironically, Irizarry’s argument can be viewed as a rather intriguing
protestation of character assassination. He seems to be saying: “I may be
a cold blooded killer, but I am no racketeer.” This gives new meaning to
Shakespeare’s previously unchallenged observations about the nature of
one’s reputation. See Othello, Act III, Scene III. (“Good name in man and
woman, . . . [i]s the immediate jewel of their souls: Who steals my purse
steals trash . . . . But he that filches from me my good name [r]obs me
of that which enriches him not, [a]nd makes me poor indeed.”).
41
Durso “or anyone else in the alleged criminal enterprise”
ordered the murder. Irizarry’s Br. at 48. We disagree.
Irizarry loaned Veale $3,000 during the fall of 1993. The
money came from “his guys,” i.e., the “guys [Irizarry] was
connected with down at [Carmine’s],” which included
Durso. App. at 2089. When Veale did not repay the money,
Irizarry told Bakhoury to talk to Veale about the debt. App.
at 2089-90. Around this same time, Bakhoury told Irizarry
that Veale may have taken money out of a joint bank
account that he and Veale had recently opened. App. at
2091. When Irizarry heard that Veale had taken money
from the account, he told Bakhoury that he “should do
something. Kick his ass. You got to do something.” Id.Ultimately, Irizarry made Bakhoury “do something” when
he ordered Bakhoury to shoot Veale. App. at 2104-05.
This supports a reasonable inference that Irizarry had
two objectives in ordering Bakhoury to “do something.”
First, Irizarry sent a clear message to the enterprise’s
current and future debtors that failure to repay a debt
would be hazardous to the debtor’s health. Second, Irizarry
was teaching Bakhoury, a member of the crew, that he
needed to be tough. It must be remembered that Irizarry
told Bakhoury after the murder that “[y]ou got to learn to
be tough because if Kyle gets over on you, everybody else is
going to get over on you.” App. at 2106-2107. As the
government submits: “Having tough and loyal crew
members was clearly in the interests of an enterprise that,
inter alia, collected debts through violence.”
(ii). The Ruiz murder.
Jason Maldonado, a friend of Ruiz, testified that shortly
before Ruiz’ death, Ruiz told him that Irizarry was looking
for people to participate in a robbery for the organization.
App. at 3429. Ruiz told Maldonado that Irizarry was asking
about him and whether Maldonado would be interested in
being involved in the robbery. Id. Ruiz also approached
Michael Monserrate about assisting in the robbery. App. at
3410-11.
On February 22, 1997, Irizarry claimed that his
apartment had been burglarized. App. at 3650-51. Irizarry
42
suspected Ruiz, app. at 3717-19, and told Angel Francolino
and Elizabeth Griesi, “I’m going to kill that f ’n kid.” About
one week later, Irizarry killed Ruiz. App. at 3607, 3653,
3735-36.
Irizarry claims the Ruiz murder was not related to the
affairs of the enterprise because the evidence only shows
that his alleged motive in killing Ruiz was retaliation for
burglarizing Irizarry’s apartment. Again, we disagree. Even
if the Ruiz murder was motivated by Irizarry’s belief that
Ruiz had burglarized his apartment, the murder still served
to send a message to someone who would demonstrate
such complete disrespect of Irizarry’s stature in the
enterprise. That disrespect was a threat to Irizarry’s role as
the enterprise’s enforcer and it therefore threatened to
erode his value to the enterprise. In fact, after the murder,
Irizarry told Griesi that he had to kill Ruiz “to make an
example” out of him “[s]o no one will do that to me.” App.
at 3736. Therefore, the jury could reasonably conclude that
Irizarry murdered Ruiz to show that he was in control and
was to be feared. In Irizarry’s mind, the message that would
quickly spread to past, present and future debtors (as well
as others), was that Irizarry was to be feared, and not to be
treated disrespectfully. That clearly furthered the affairs of
the enterprise, and Irizarry’s value to it.
In addition, and even more directly, there was evidence
from which the jury could reasonably conclude that Irizarry
wanted Ruiz dead because Ruiz was “running his mouth”
about the robbery Irizarry was planning on behalf of the
enterprise. Soto testified that around the time of Ruiz’s
murder, Irizarry visited him in prison and told him that
“things [ ] in the street . . . [were] hot right now.” App. at
1229. Irizarry told Soto that “[h]e was being questioned in
connection with something that happened” on the street
. . . someone died.” Id. Soto testified that Irizarry told him
that this “someone” “had a big mouth and he was running
his mouth.” App. at 1230. Irizarry told Soto that he did
“what [he] had to do.” Id. From this testimony, the jury
could reasonably infer that Irizarry killed that “someone.”
Furthermore, in light of the testimony that Ruiz knew about
the planned robbery and told Maldonado and Monserrate
about it, the jury could infer that Irizarry and Soto were
43
speaking about Ruiz. Thus, Ruiz’s murder was related to
the affairs of the enterprise because the enterprise could
not have its criminal plan compromised by public
discussion.
(iii). The Marmora/Pavone murders.
Irizarry also claims that the Marmora/Pavone murders
were not related to the affairs of the enterprise because
there was no evidence that any “superior” ordered the
“hits.” We disagree. This argument ignores evidence that,
after the murders, Durso suggested to McGuiness that he
(Durso) “opened the door” when McGuinness asked him
how he felt about the rumors that Irizarry killed his cousin.
App. at 3201. Given the evidence that Durso was Irizarry’s
boss in the enterprise, the jury could reasonably infer that
Irizarry had Durso’s approval to commit Marmora’s murder.
In fact, this is the only reasonable inference one can draw
from that testimony. Although that testimony goes to
Marmora’s murder, and not Pavone’s, Pavone was an
eyewitness to the murder of his roomate, Marmora. The
jury could reasonably conclude that Pavone was killed in
order to silence him, and this furthered the interests of the
enterprise by eliminating proof of Marmora’s murder, and
insulating Irizarry from it.
C. The District Court Did Not Err by Not Instructing
the Jury that Motive was a Necessary Element of the
Offenses Charged in the Indictment.
The district court gave the following jury instruction on
motive:
Motive and intent should never be confused. Motive is
what prompts a person to act or fail to act. Intent
refers only to the state of mind with which the act is
done or omitted. Proof of motive is not a necessary
element of this crimes in this Indictment. Proof of
motive does not establish guilt nor does lack of motive
establish that the defendant is innocent. If the guilt of
the defendant is shown beyond a reasonable doubt, it
is immaterial what the motive for the crime may be or
whether any motive may be shown.
44
The motive of the defendant should not be
considered except to the extent that the evidence of
someone’s motive may aid your determination of his
state of mind or intent. . . .
App. at 4667. This instruction was given in the context of
instructions on the “definition of knowingly and wilfully.” It
was given after the court instructed the jury that it had to
find “with regard to each Count of the Indictment, that the
government has proven that the defendant knowingly and
wilfully violated the law.” App. at 4665.
The precise nature of Irizarry’s challenge to this
instruction is elusive, and he raises it for the first time on
appeal. Accordingly, it has been waived. However, even if
Irizarry had properly preserved this argument, we would be
constrained to reject it. To the extent that Irizarry is
arguing that the charge was improper because the district
court did not instruct the jury that it must find that
Irizarry’s motive in committing each predicate act was to
further the affairs of the enterprise, his argument is
without merit.
The district court properly instructed the jury that the
government is required to prove “the defendant knowingly
and wilfully conducted or participated in the conduct of the
enterprise’s affairs through a pattern of racketeering
activity,” as an element of its RICO charge. App. at 4687-
88; see 18 U.S.C. § 1962(c). The district court also
instructed the jury in accordance with our precedent, that
the government may establish this element by showing
either (1) the defendant “is enabled to commit the predicate
offenses solely by virtue of his position in the enterprise or
involvement in or control over the affairs of the enterprise”
or (2) “the predicate offenses are related to the activities of
that enterprise.” App. at 4689-90, see United States v.
Provenzano, 688 F.2d 194, 200 (3d Cir. 1982) (quoting
United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980)). The
government does not have to show that the defendant’s
motive in committing the predicate act was to further the
affairs of the enterprise. In fact, a defendant can commit a
predicate act that is detrimental to the enterprise so long as
the evidence establishes the requisite nexus between the
predicate act and the enterprise. Provenzano, at 200
45
(recognizing that by accepting bribes in exchange for
allowing violations of a collective bargaining agreement, the
defendant was conducting the RICO enterprise local union
through racketeering activity even though the union was
harmed by the racketeering activity).
D. Evidence of Uncharged Acts.
Irizarry claims that the district court erred by admitting
evidence of uncharged acts in violation of Fed.R.Evid. 401
and 403. His entire argument on this point is as follows:
On June 6, 2001, after the jury had been selected,
the Government informed counsel that it intended to
introduce into evidence several robberies in 1996 and
terroristic threats in early 1994. These separate crimes
were not mentioned in the indictment returned in the
case sub judice. Defendant objected to the introduction
of these uncharged crimes under Federal Evidence
Rule 401 and 403. The Government claimed that the
evidence was admissible to prove the existence of the
enterprise.
Defendant submits the Government simply
circumvented the Grand Jury process by introducing
this evidence on an erroneous theory that these
allegations somehow prove the existence of a RICO
enterprise. These uncharged criminal acts did nothing
to prove the existence of a RICO enterprise.
Irizarry’s Br. at 53.
However, Irizarry does not specifically identify the
uncharged acts he is referring to or the context in which
the evidence was admitted. It is therefore difficult to
determine if the court abused its discretion in admitting the
evidence. Fed.R.App.P. 28(a)(9)(A) requires that the
argument section of appellant’s brief contain “appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the claim does not comply with
that rule.” An appellant who fails to comply with this
requirement fails to preserve the arguments that could
otherwise have been raised. See Lunderstadt v. Colafella,
885 F.2d 66, 78 (3d Cir. 1989). See also United States v.
46
Voigt, 89 F.3d 1050, 1064 n.4 (3d Cir. 1996) (“[B]riefs must
contain statements of all issues presented for appeal,
together with supporting arguments. . . .”) (emphasis in
original).
E. Denial of Continuance.
Irizarry claims that the district court abused its
discretion when it denied his request for a continuance. He
claims that a continuance was necessary to enable him to
address the Veale murder. The Veale murder was added as
an additional predicate act in the second superseding
indictment that was filed April 11, 2001. He also maintains
that a continuance was necessary to allow him sufficient
opportunity to examine the discovery regarding the Veale
and Marmora/Pavone murders that the government
provided on May 18, 2001. However, Irizarry requested the
continuance on May 29, 2001, approximately two weeks
before the scheduled trial date of June 11, 2001.
The trial court’s decision to deny a continuance is
reviewed for abuse of discretion. United States v. Kikumura,
947 F.2d 72,78 (3d Cir. 1991). “[D]enying a request for a
continuance constitutes an abuse of discretion only when it
is ‘so arbitrary as to violate due process.’ ” Id. quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Given the
sequence of events listed above, Irizarry claims that the
district court abused its discretion because “the
Government literally had years to prepare . . . for trial. The
defense in reality had only two weeks.” Irizarry’s Reply Br.
at 23. In denying Irizarry’s request, the district court noted
that the amount of additional paper pertaining to the Veale
murder was “not big.” App. at 348. The Government further
explained to the district court that the documents from the
Marmora/Pavone murders were not “close to being Brady
material,” but were being provided to defense counsel out of
an abundance of caution. App. at 348. We see nothing in
the record to contradict these claims, and Irizarry has
pointed to nothing that refutes them. The district court
denied the request for a continuance because the trial was
scheduled to start twelve days from the date the
continuance was requested. App. at 349.
47
We find no abuse of discretion. Irizarry’s counsel had
notice of all of the government’s allegations and predicate
acts charged against Irizarry, except for the Veale murder,
when the original indictment was filed on May 24, 2000;
over one year prior to the start of the trial. The second
superseding indictment was filed on April 11, 2001,
approximately two months prior to the start of the trial.
Although it would have been preferable to afford defense
counsel additional time to examine the material relating to
the recently filed second superseding indictment, we can
not conclude that failure to do so constituted an abuse of
discretion. Moreover, given the numerous predicate acts
including several murders (many of which are uncontested)
that Irizarry knew about more than a year in advance of
trial, we fail to see how he was prejudiced by the relatively
brief period between the addition of the Veale murder and
the trial. See United States v. Vaughn, 111 F.3d 610, 613
(8th Cir. 1997) (finding no abuse of discretion in denying
continuance where defendant’s “trial did not start until . . .
thirty-two days after the grand jury returned the latest
indictment”.).
Irizarry simply asserts that “the interest of justice
required more time for counsel to prepare.” Irizarry’s Br. at
56. However, he makes no effort to demonstrate how the
denial of his request for a continuance prejudiced him or
impaired his two defense counsels’ ability to prepare a
defense.20
F. The Government’s Improper Cross-Examination.
Irizarry’s last claim is that the “federal prosecutor
repeatedly used improper methods to convey highly
prejudicial information to the jury” while cross-examining
him, and that this denied him a fair trial.
“[T]he scope of cross-examination is left to the sound
20. He claims that the documents supplied on the Marmora/Pavone
murders were Brady material and should have been turned over much
earlier, and that prior to May 18, 2001, he had received only a “small
fraction of the discovery” he was ultimately given. Irizarry’s Reply Br. at
22. However, both claims are simply undeveloped assertions.
48
discretion of the trial court, and [the court of appeals] will
reverse only for an abuse of discretion.” United States v.
Werme, 939 F.2d 108, 117 (3d Cir. 1991). Improper
questioning rises to the level of reversible error when the
“misconduct . . . is of sufficient significance to result in the
denial of the defendant’s right to a fair trial.” Greer v. Miller,
483 U.S. 756, 765 (1987) (citations and internal quotations
omitted). Such prosecutorial misconduct is grounds for
reversal “only if it causes substantial prejudice.” United
States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999).
In determining whether a prosecutor’s questioning denied
the defendant a fair trial, “it is important as an initial
matter to place the remark in context” of the entire trial.
Greer, 483 U.S. at 766 (citation, internal quotations and
brackets omitted). United States v. Retos, 25 F.3d 1220,
1224 (3d Cir. 1994). Moreover, when a defendant fails to
object to the remarks that he/she challenges for the first
time on appeal, we review the claim “under the more
deferential plain error standard.” United States v. Hinton,
31 F.3d 817, 824 (9th Cir. 1994). Accordingly, Irizarry must
now “demonstrate prosecutorial misconduct [resulted in] an
egregious error or a manifest miscarriage of justice.” United
States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001).
Irizarry has specifically identified eight instances of
alleged improper cross-examination. Each is considered
separately below.
(i). Cosmo Ocensio.
Irizarry contends that it was improper for the government
to ask him on cross-examination whether he knew his
former boxing manager, Cosmo Ocensio, was an associate
of the Genovese crime family. In his view, such evidence
“would not have been admissible if offered since it was
irrelevant and highly prejudicial.” Irizarry’s Reply Br. at 24.
We agree that asking Irizarry on cross-examination whether
he know that Ocensio was an associate of that crime family
was improper. However, defense counsel quite properly
objected and the district court instructed the jury to
“disregard the question” and “[s]trike it from your mind.”
App. at 4368. The government then asked Irizarry whether
49
he knew “if Cosmo Ocensio is connected with the Genovese
crime family?” App. at 4369. For some reason, defense
counsel did not restate his objection, and Irizarry answered,
“No.” App. at 44369.
Later in the day, the government asked Irizarry: “Isn’t it
true that you ended up going down to Marion [a section of
Jersey City] instead of being a professional boxer or instead
of being in the Olympics because the person you [were]
working with was in the Genovese crime family?” App. at
4414-15. Again, there was no objection, and Irizarry
answered, “No[ ] [t]ruth.” App. at 4415.
The first question set forth above assumes a question
that was not in evidence; however Irizarry did not answer it,
the court sustained a proper objection, and gave an
appropriate cautionary instruction. However, the second
and third questions were arguably proper because Irizarry
had testified on direct examination that he quit boxing
because of “bad management.” App. at 4183. Consequently,
the government inquired into whether the reason Irizarry
quit boxing and joined the enterprise was that Ocensio
introduced him to criminal figures. See United States v.
Payton, 159 F.3d 49, 58 (2d Cir. 1998) (“When a defendant
offers an innocent explanation [for his criminal conduct] he
‘opens the door’ to questioning into the truth of his
testimony, and the government is entitled to attack his
credibility on cross-examination.”). Moreover, to the extent
that this inquiry crossed the line of propriety, we are
convinced that it does not rise to the level of plain error,
and we therefore reject the challenge based upon it.
(ii). Ranieri’s 1968 Murder Charge.
Irizarry claims that the government engaged in
misconduct by asking him on cross-examination whether
he knew that the reason Ranieri left Sicily had “[s]omething
[to do] about a murder in 1968.” App. at 4490. Defense
counsel objected, but Irizarry answered: “I never talked to
him.” Nevertheless, the court sustained the objection and
again instructed the jury to “disregard” the “question about
Massimo Ranieri this morning allegedly leaving Sicily for
some reason or other.” App. at 4523. The district court also
50
reminded the jury that questions by attorneys are not
evidence and “[i]f there are any questions which remain
unanswered, they don’t constitute evidence in this case.”
App. at 4522. In addition, any negative inference related to
Ranieri’s bad act, not Irizarry’s. Thus, whatever tar may
have flung from that brush landed on Ranieri, not Irizarry.
Accordingly, the question does not afford Irizarry ground for
relief, particularly given the court’s proper cautionary
instruction. See Shannon v. United States, 512 U.S. 5763,
585 (1994) (it is “the almost invariable assumption of the
law that jurors follow their instructions”) (citation and
internal quotations omitted).
(iii). The LaScala Tapes.
During the trial, the district court heard oral argument
regarding the admissibility of audio tapes containing a
conversation with Joseph “Pepe” LaScala in which LaScala
discusses Irizarry. This occurred outside the presence of
the jury. App. at 3523-24, 3531. The government claimed
that Irizarry and Rotolo had discussed beating up Mike
Della Rosa, and that Rotolo had, in turn, discussed the
situation with LaScala. LaScala was reputed to be the head
of a criminal organization, and Rotolo’s boss. Id. However,
LaScala refused to permit Irizarry to touch Della Rosa. The
district court denied the request to admit the recorded
LaScala conversation. However, Irizarry argues that during
his cross-examination, the government asked: “as to the
contents of tapes involving Pepe LaScala previously ruled
inadmissible by the Court.” Irizarry’s Br. at 59. He claims
that this question was prejudicial because LaScala is a
high-ranking member of organized crime.
The precise questioning by the government was:
Q: Did you ask Tony Rotolo to go to Pepe LaScala
about this situation?
A: No.
Q: Do you know [who] Pepe LaScala is?
A: No.
App. at 4372. At this point there was no objection to either
question. The government then attempted to ask another
51
question: “Do you know who is?” Irizarry interrupted and
said, “I went out to his daughter’s girlfriend.” App. at 4372.
Defense counsel requested a side bar during the course of
which the district court told the government not to “ask
those questions.” App. at 4373. The district court then
instructed the jury:
There were a series of questions in which the name
Pepe LaScala was used. All of those questions are
irrelevant to this particular case. I would ask you to
disregard and strike from your mind all of the
questions. Perhaps, there were three or four which
used the name Pepe LaScala. Pepe LaScala is not part
of this case. He has nothing to do with this case. You
are to disregard that conversation.
App. at 4377.
The prosecutor’s reference to Pepe LaScala was as
impertinent as it was improper and irrelevant. If it served
any purpose other than an attempted end run around the
court’s prior ruling regarding the audio tapes, we can not
identify it. Such questioning could well be grounds for a
finding of prosecutorial misconduct and also entitle a
defendant to relief in an appropriate case. However, viewing
this record in its entirety, we conclude that this is not such
a case. The court gave a proper cautionary instruction, and
the prosecutor’s apparent attempt to circumvent the court’s
earlier ruling ended with the side bar and the court’s
admonishing of the prosecutor.21
21. We are indeed troubled that a prosecutor would forget that he/she is
an officer of the court and indulge in this type of questioning after a
court has made a ruling that would have alerted any experienced trial
counsel to the impropriety of pursuing the inquiry. Such tactics do not
speak well of attorneys who resort to them, and they also run the very
real risk that the fruits of a difficult and costly investigation will be lost
all because counsel is unwilling to content himself/herself with a court’s
rulings or the limitations of propriety and resort instead to innuendo and
insinuation rather than evidence to “earn” a conviction.
We of course understand that contested criminal trials are emotional
encounters. This is especially true when they involve the kind of
allegations contained in this indictment, and a key protagonist is on the
witness stand. However, that is no excuse for the kind of borderline
52
(iv). Durso’s Implication of Irizarry.
Irizarry claims that the government improperly “brought
out that co-defendant Durso had implicated [him] when he
pled guilty to Racketeering.” Irizarry’s Br. at 59. The
challenged questioning is as follows:
Q: When Franco got arrested, he had a gun?
A: Franco has nothing to do — You keep pointing at
me. This got nothing to do with me.
Q: Just so I understand you. What are you saying
about Franco? Frank is a what?
A: Franco?
Q: Yes.
A: Franco is walking out before the next Olympics.
This has is [sic] nothing to do with me.
Q: You do not know when Franco was arrested?
A: I kind of got the idea you gave him a plea. He
pleaded guilty to what you permitted him to do.
Q: He pleaded guilty to racketeering conspiracy.
Racketeering?
A: For assault. Not me.
Q: 20-year maximum. You know what?
A: No, I don’t.
Q: You don’t know?
A: I know he got a deal. I know another guy will walk
on the streets for crimes he committed. Doesn’t
implicate me. I didn’t kill anybody.
ethics that all too often allow an attorney to justify what would easily be
recognized as a “cheap shot” by the more objective observer. See
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (prosecutorial
misconduct can be of sufficient magnitude to deny a defendant a fair
trial). However, despite our concern for, and displeasure with, some of
the tactics and questions the prosecutor resorted to here, it is clear from
our examination of the record, that this is not an appropriate case for
relief given the totality of the circumstances.
53
Q: Did Franco implicate you?
A: I’m not talking about Franco. I know he implicated
me on arson.
App. at 4390-91. Defense counsel never object to this line
of questioning.
We assume that Irizarry is complaining about the
government’s question “Did Franco implicate you?”
However, in his Brief he never explains why that question
is improper. Irizarry’s Br. at 59. In his Reply Brief, he
appears to change his argument by saying that unless a co-
defendant testified, the co-defendant’s guilty plea is
inadmissible at defendant’s trial. Reply Br. at 27. However,
inasmuch as Irizarry’s response arguably opened the door
to the government’s question regarding Durso’s guilty plea,
this is not plain error.
(v). Elizabeth Griesi.
Irizarry argues that Elizabeth Griesi “was a crucial
witness for the Government in the murder of Jose Ruiz.”
Reply Br. at 28. He alleges that the government improperly
“stated that [he] abused Griesi during their relationship.”
Irizarry’s Br. at 59. The challenged questioning is as
follows:
Q: You weren’t asked this question, either, but you
volunteered [on direct examination] that you never laid
a hand on her?
A: I didn’t.
Q: Were you concerned that the jury might be
concerned about you hitting her?
A: The ex-boyfriend beat her.
Q: I’m talking about you.
A: Her ex-boyfriend.
Q: By the ex-boyfriend.
A: Yes.
Q: Not by you?
54
A: No.
Q: Not by you. You weren’t asked any questions about
hitting her. You decided to say “I never beater [sic] her;
the ex-boyfriend did” without question?
*********
Q: You threatened her?
A: Absolutely not.
Q: You threatened her after you killed Jose Ruiz. You
threatened her.
A: I did not kill Jose Ruiz.
Q: You told her “If you tell anybody, I will cut you up
and put you in the ocean.” That’s what you said to
her?
A: I didn’t threaten her. She went to Cancun with me.
App. at 4410-12. Defense counsel made no objections to
this questioning.
On appeal, Irizarry argues that this line of questioning
was improper because he was not charged with making a
terroristic threat against Griesi. He also argues that it was
improper because he attempted to attack her credibility on
the ground that she delayed for several years reporting that
he told her he murdered Ruiz. As Irizarry notes, she came
forward with that information only after the government
threatened her with criminal charges. According to Irizarry,
this improper questioning “permitted the jury to consider
without foundation that she failed to report this alleged
admission because defendant had threatened her.”
The government claims that the questioning was proper
because it was prompted by Irizarry’s voluntary statement
that he “never put [his] hand on her” when defense counsel
asked him on direct why they broke up. App. at 4252. The
government claims that it could then cross-examine Irizarry
about the truthfulness of his direct testimony, i.e., that he
never assaulted Griesi. See Fed.R.Evid. 611(b).22
22. Which provides, in relevant part: “Cross-examination should be
limited to the subject matter of the direct examination and matters
affecting the credibility of the witness.”
55
Irizarry’s attempt to rest relief upon this questioning is
fatally undermined by our plain error review and the
cautionary instruction the district court gave. The day
following the questioning, the district court reminded the
jury that “[i]f there are many questions which remain
unanswered, they don’t constitute evidence in this case.”
App. at 4522. With specific reference to the Griesi
questioning, the district court further stated:
There has been some question about a statement may
have been made and a question on Tuesday.
Something about beating and threatening to kill
Elizabeth Griesi. There is no testimony to support that.
That may have been asked in the question. If it was
asked in the question, it was denied, in any event. You
are to disregard the question and anything concerning
that.
App. at 4522-23. Accordingly, even if we were to reject the
government’s proffered defense of this inquiry, we would
still be constrained to conclude that it does not amount to
plain error, and we therefore reject Irizarry’s claim for relief
based upon it.
(vi). Michelle Perez.
Irizarry claims that the government “improperly implied
that [he] incriminated himself to Ms. Perez.” Irizarry’s Br. at
60. Irizarry dated Perez prior to the Marmora/Pavone
murders in December 1993. Apparently, local law
enforcement wanted to question him about those murders
after Perez told a homicide detective that Irizarry had told
her that he was supposed to see Marmora the day he was
killed. Perez was not called as a witness.
The government asked Irizarry: “You wouldn’t have any
reason to discuss with her [Perez] anything about Joseph
Marmora or anything that might have happened at 608
Tonnelle Avenue [the scene of the Marmora murder],
correct?” App. at 4522. Before there was any response,
defense counsel objected. However, the government then
said that it would move on to another area of questioning
and the district court instructed the jury to “[d]isregard the
question.” App. at 4522. The district court then once again
56
cautioned that questions are not evidence. Because the
question was not answered and the jury was told to
disregard it, we can not conclude that Irizarry suffered
substantial prejudice. However, we must again note that
there was no need for the prosecutor to venture down this
road and doing so could have risked the very conviction he
was trying so zealously to secure.
(vii). Nancy Padilla.
Irizarry criticizes the government’s questioning whether
Nancy Padilla, a former girlfriend, was kicked out of her
apartment because Irizarry was selling drugs. Irizarry’s
response was “That’s not true.” The government argues that
it was permitted to ask the question to challenge Irizarry’s
claim that he and Padilla were evicted from the apartment.
It also argues that the subject-matter was so peripheral to
the issues that it could not possibly have prejudiced
Irizarry. Significantly, Irizarry agrees that the subject
matter of the question was so peripheral to the issues that
it could not have prejudiced him and would not be grounds
for reversal. Nonetheless, he argues that we consider this
question in context with the cumulative effect of all the
government’s misconduct rather than view it as an isolated
attempt to explore the irrelevant. We agree that the
question about Padilla is peripheral. In fact, given the
government’s concession that the question was peripheral,
we can not help but wonder why the prosecutor was so
intent on dredging it up and allowing the jury to peek at it.
However, inasmuch as Irizarry has not demonstrated the
necessary prejudice from the cumulative impact of the
prosecutor’s transgressions and zeal, no relief is warranted.
(viii). Cross-examination on Uncharged Crimes.
Irizarry claims that the government improperly cross-
examined him on uncharged criminal activity. This
argument arises from the fact that the prosecutor asked
Irizarry why he had a driver’s license and social security
card for James Bryan Ballentine in his wallet at the time of
his arrest. App. at 4400-02. Irizarry answered that he did
not know. Id. The government also asked him about
57
numerous blank social security cards recovered from his
apartment. App. at 402-03. At first, Irizarry stated that he
found the blank cards. Later he changed his story and
explained that he obtained them from an individual named
“Nicky Ladagna” and that he intended to sell them. App. at
4402-03. The district court twice instructed the jury that
this “was not a charge in the Indictment.” App. at 4404-05.
The government then asked Irizarry whether this was the
first time he sold blank social security cards and Irizarry
responded that he had also sold birth certificates. App. at
4405.
Irizarry argues that “the clear purpose of the questioning
was to convey the message to the jury that because he
committed these uncharged acts of misconduct, he was a
‘bad person’ who must be punished.” Reply Br. at 31.
However, inasmuch as Irizarry was a witness, his character
for truthfulness was an issue for the jury’s consideration.
Moreover, since the government never attempted to
introduce extrinsic evidence under Fed.R.Evid. 404(b), the
testimony is controlled by Fed.R.Evid. 608(b) which states:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’
credibility, other than the conviction of crime as
provided in rule 609, may not be proved by extrinsic
evidence. They may . . . in the discretion of the court,
if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness (1)
concerning the witness’ character for truthfulness or
untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has
testified.
Fed.R.Evid. 608(b). We agree that the challenged evidence
tended to tended to show deceit, and it was therefore
admissible to establish Irizarry’s lack of truthfulness, not
his character. Cf. United States v. Williams, 986 F.2d 86, 89
(4th Cir. 1993) (“[Defendant’s] possession and use of false
identification to cash stolen checks certainly are probative
of his truthfulness and credibility as a witness. . . .”).
58
IV. CONCLUSION
For all of the above reasons, we will affirm the district
court.23
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
23. In addition to the eight instances discussed, Irizarry makes a broad
complaint that “there were numerous occasions where the prosecutor
badgered the defendant; improperly made declaratory statements of
defendant’s guilt; made conclusiary (sic) statements; and asked improper
hypothetical questions.” Irizarry’s Br. at 61. However, he merely cites to
page numbers in the appendices where he claims this alleged
misconduct occurred. He has not developed any argument as to why the
cited instances would constitute prosecutorial misconduct. Therefore, he
has not preserved any claim on appeal as to those cited instances. See
Part III.B., supra.