Filed: Jun. 29, 2012
Latest Update: Mar. 26, 2017
Summary: United States v. Cao, 471 F.3d 1, 3 (1st Cir.Agent Kelsch's testimony.and that was it, they wanted to burn the pizza joint and recorded, calls between Gianelli and Albertelli included references to the, arson as our only hope and the only right way to resolve, problems with Colangelo.
United States Court of Appeals
For the First Circuit
No. 09-2213
UNITED STATES OF AMERICA,
Appellee,
v.
GISELE ALBERTELLI,
Defendant, Appellant.
____________________
No. 09-2478
UNITED STATES OF AMERICA,
Appellee,
v.
ARTHUR GIANELLI,
Defendant, Appellant.
No. 09-2606
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK IACABONI,
Defendant, Appellant.
____________________
10-1214
UNITED STATES OF AMERICA,
Appellee,
v.
DENNIS ALBERTELLI, a/k/a Fish,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
Stahl, Circuit Judges.
Patricia A. DeJuneas, by appointment of the court, with whom
Robert L. Sheketoff, by appointment of the court, was on brief for
appellant Arthur Gianelli.
Alan P. Caplan for appellant Frank Iacaboni.
Richard B. Klibaner, by appointment of the court, with whom
Klibaner & Sabino was on brief for appellant Dennis Albertelli.
Brian J. Kelly, by appointment of the court, for appellant
Gisele Albertelli.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
June 29, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
BOUDIN, Circuit Judge. A federal jury convicted Arthur
Gianelli, Dennis Albertelli ("Albertelli"), Frank Iacaboni, and
Albertelli's wife Gisele ("Gisele") of racketeering, racketeering
conspiracy or both, and a host of other federal crimes, incident to
their years-long participation in a criminal organization
responsible for a large illegal gambling operation. Gianelli
headed the group, with Albertelli serving as the second-in-command.
The charged criminal conduct involved four operations:
the first three were different flavors of continuing illegal
gambling businesses--sports betting, "football cards," and video
poker--that spawned a variety of criminal support activities such
as money laundering, usurious lending, and extortionate collection
of credit; the fourth comprised a single venture by the three male
defendants (but excluding Gisele) seeking to burn down a business
in North Reading, Massachusetts.
The indictment used at trial, as narrowed by dropping
various counts and other defendants, contained several hundred
counts against the remaining four already named; but most involved
individual transactions designated as money laundering. The
remaining 25 or so charged racketeering conspiracy, racketeering,
illegal gambling business, transmission of wagering information,
money laundering conspiracy, interstate travel in aid of
racketeering, extortionate collection of credit, extortionate
collection of credit conspiracy, and five variations of arson and
-3-
extortion crime directed to the planned burning down of the North
Reading business.1
Before trial, the defendants jointly moved to suppress
evidence obtained through a series of wiretaps, arguing in relevant
part that the application for the initial wiretap--upon which all
subsequent interceptions were based--was not properly authorized,
did not show the wiretap was necessary, and was not supported by
probable cause. The district court, after hearing argument and
reviewing the materials submitted, denied the motion in a published
opinion. United States v. Gianelli, 585 F. Supp. 2d 150 (D. Mass.
2008).
There followed a trial that stretched over several weeks
and included extensive testimony and wiretap evidence directed to
the operations of the group, individual transactions, and the roles
of the individual defendants. Ultimately the jury convicted all
four defendants of nearly all of the charges, acquitting each
defendant on between one and four counts. Each was convicted of
racketeering, racketeering conspiracy or both.
The defendants were later sentenced to terms of
imprisonment as follows: Gianelli, 271 months; Albertelli, 216
months; Iacaboni, 183 months; and Gisele, 21 months. Each of the
1
An addendum to this decision contains tables that identify
each charged count by name and statutory citation; indicate which
defendant was charged on which counts; specify the counts on which
each defendant was acquitted; and identify the sentence received by
each defendant.
-4-
defendants now appeals, but with a few exceptions noted below the
issues raised on appeal are common to all of the defendants. The
standard of review varies by argument and whether or not the
argument was preserved in the district court.
Wiretaps. Organized crime cases depend heavily on
wiretaps. For some of the activities--gambling, drug sales, money
lending--there may be no "victims" to complain. Written records
are often minimal. And especially where the organization is large
or affiliated with a larger criminal enterprise, co-conspirators
may be fearful about turning state's evidence. So surveillance
and wire taps are principal tools of investigation, and the latter
require warrants.
Although a warrant issued on probable cause is enough for
the police to enter and search a home, Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 ("Title III") (codified
as amended at 18 U.S.C. §§ 2510 et seq.) imposes even more
stringent requirements for wiretaps and also requires compliance
with state law, id. § 2516(2), which in Massachusetts means Mass.
Gen. Laws ch. 272, § 99(F)(1). Defendants argue that the initial
wiretap application was not properly authorized under section
99(F)(1), as interpreted by Massachusetts' Supreme Judicial Court
in Commonwealth v. Vitello, 327 N.E.2d 819 (Mass. 1975).
Vitello held that an assistant district attorney may not
seek a wiretap on his own authority; rather, the district attorney
-5-
must "review and authorize" such an application in writing. Id. at
825, 838-39. However, so long as the matter is subject to his
review, the district attorney need not sign the application but may
authorize a subordinate attorney to make the application.
Commonwealth v. D'Amour, 704 N.E.2d 1166, 1175 (Mass. 1999).
In this case, the Essex County District Attorney by two
letters--one to three named assistant district attorneys ("ADAs")
and the other to a Superior Court judge--authorized the three
subordinates to apply to intercept calls involving Albertelli,
Gianelli and another named associate occurring over three
designated telephone lines; both letters were attached to the
actual wiretap application signed by the named ADAs; and the
district attorney's letter said that the application and any
renewals would be reviewed by the district attorney or a designee.
In addition, a separate affidavit by the district
attorney, offered in response to the motion to suppress in this
case, attested that he had in fact "reviewed draft copies of an
affidavit setting forth the probable cause and an application"
prior to issuing the authorizations, and was satisfied that they
complied with the relevant statutes. He also stated that he
"personally reviewed every renewal application and supporting
affidavit." These documents, the district court held, satisfied
section 99(F)(1).
Defendants argue they do not, emphasizing that in D'Amour
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the specific crimes were also identified in the letter, which was
dated the same day as the application, whereas in this case the
application was dated one day after the authorizing letter. The
one day delay makes it possible that the district attorney read
only a draft rather than the final application; but the district
attorney's obligation was to superintend and take responsibility
for the wiretap application, not to act as the final proofreader.
See D'Amour, 704 N.E.2d at 734-35.
Citing United States v. Smith, 726 F.2d 852, 856 (1st
Cir. 1984) (en banc), the defendants say that the district court
should have held an evidentiary hearing on the extent of his
oversight; but our remand in Smith was because "the district court
did not make a particularistic inquiry" into whether the
application was authorized. Id. at 860. Here, the district court
did make such an inquiry and the only material dispute was not
about what happened but whether the district attorney's version of
what he did was sufficient oversight.
Nor do we agree that the wiretap application failed Title
III's required showing that "other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous." 18 U.S.C.
§ 2518(1)(c), (3)(c). Here, the warrant application was
accompanied by a detailed 74-page affidavit by Massachusetts State
Police Trooper Nunzio Orlando describing the investigation and
-7-
explaining in detail the limits on what could be found without
wiretaps and why individual alternatives were ineffective.
Defendants point out that these alternative techniques
had allowed the agents to collect considerable information, as is
evident from Orlando's affidavit, but the "partial success of the
investigation did not mean that there was nothing more to be done."
United States v. Cao, 471 F.3d 1, 3 (1st Cir. 2006) (emphasis
omitted). For example, the affidavit explained that some of the
participants in the conspiracy had not yet been identified, and
that precautions taken by the known conspirators made the wiretap
evidence essential to continued gathering of necessary evidence.
Defendants also complain that the affidavit contains a
good deal of boilerplate, but so do judicial decisions, and for the
same reason that in similar situations--here, the conduct of a
bookmaking operation--much remains unchanged. The affidavit,
however, included ample detail unique to this investigation,
including, for example, extensive accounts of efforts at and
limitations of using confidential informants, physical
surveillance, and telephone record analysis.
Title III permits wiretaps to investigate "gambling"
offenses generally, while the state statute--whose conditions must
also be met--authorizes them for only one gambling offense: keeping
or being in a place for the registering of bets. Mass. Gen. Laws
ch. 271, § 17. Gianelli used an off-shore service reached by an
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800 number to allow his bettors to place wagers, but the affidavit
described conduct in Massachusetts of related activities such as
communicating with local agents, settling disputes, and collecting
payments from local bettors.
Commonwealth v. Boyle, 189 N.E.2d 844, 845-46 (Mass.
1963), held it enough that the defendant possessed "memos between
the bookmaker or office and the agent or writer" of bets
registered. Here, satisfying Boyle, the affidavit reported, based
on confidential informants, that Albertelli and Ramasci retrieved
records in Massachusetts indicating their customers' gambling
balances and specific wagers from the previous week. Accord
Commonwealth v. Demogenes,
211 N.E.2d 226, 227 (Mass. 1965)
(section 17 covers "papers containing records of bets").
The defendants claim that the phrase "apparatus . . . for
registering bets" requires that the apparatus be used in the
process of recording a bet--as opposed to some other facet of the
gambling business--and that registration of bets in Massachusetts
must occur to violate the statute. The case law refutes that claim
and the link here with Massachusetts was sufficient. Id.; Boyle,
189 N.E.2d at 845-46; Commonwealth v. Carlson, 120 N.E.2d 384, 385
(Mass. 1954).
There was probable cause to believe the three wiretap
targets were violating section 17 through their sports betting
business, so we can bypass the defendants' claims that probable
-9-
cause was lacking as to their football card and video poker
activities; probable cause for any one such crime was sufficient.
In addition, those arguments were not made in the motion to
suppress and have been forfeited. Fed. R. Crim. P. 12(e),
12(b)(3); United States v. Walker, 665 F.3d 212, 228 (1st Cir.
2011).
Agent Kelsch's testimony. The defendants say that the
court erred in permitting ATF Special Agent Kelsch to testify
insofar as he sought to interpret for the jury conversations
intercepted over the wiretaps. Similar objections were made to
testimony by other agents but those made to Kelsch's testimony are
representative and, at least as to some, better preserved. Review
of preserved objections is for abuse of discretion, and the others
for plain error. United States v. Weekes, 611 F.3d 68, 70 (1st
Cir. 2010).
The focus of the disputed prosecution testimony concerned
the charges relating to the effort to burn down a building in North
Reading, a plot of which investigators learned initially through
the wiretaps. In brief, Gianelli had partnered with Mark Colangelo
and Edward Fitzsimons to open a large sports bar in Lynnfield; the
venture ended in litigation between the partners; and (so the
government sought to show) Gianelli had sought to bring pressure on
Colangelo and Fitzsimons by burning down a building in North
Reading housing a bar and a pizza joint that provided them revenue.
-10-
According to testimony from Deeb Homsi, a former Hells
Angel gang member and longtime friend of Albertelli, Albertelli
asked Homsi to burn down the building, explaining the coercive
purpose of the crime; and he gave Homsi the address and advice on
starting the fire. Homsi then recruited Michael McCormack, who in
turn recruited another Hells Angels member, Sean Slater, for
assistance in setting the fire. Gianelli checked in with
Albertelli regularly for updates and later pressed him to finish
the job.
Albertelli had separate discussions with Iacaboni about
the arson project; Iacaboni secured a diagram of the building from
Albertelli, and the next day told Albertelli that he had recruited
his own arsonist and discussed with that man specific plans for
setting the building ablaze; but, the evidence indicated, the
(unnamed) would-be torch man backed out when Iacaboni told him no
key was available for the target. Completion of the task reverted
to Homsi's recruits.
After one failed attempt, McCormack and Slater tried
again on November 13, 2003, and got a gasoline-filled container
ignited at the site, but firemen extinguished the fire, having been
alerted by agents who were staked out nearby after intercepting
telephone calls about the plan. Slater and McCormack were arrested
nearby. Albertelli then provided $10,000 to bail out Slater.
-11-
Later, Gianelli called Albertelli to express concern that McCormack
might be cooperating with the government.
In advance of Kelsch's testimony, the defense sought to
bar him from testifying as to the meaning of intercepted
conversations which, as is not uncommon in conspiracies, were
cryptic. The judge refused to bar the testimony outright:
It is my inclination at this time to allow Mr.
Kelsch to testify with respect to specific
matters that may be within his expertise as
someone who knows about arson and arson
investigations. But I am not going to allow
more general questions as to what happened in
that conversation. If the questions are
directed specifically to specific responses or
portions of the conversations and they related
to matters that I believe are not entirely
clear to lay persons, I will allow such
testimony. But if they don't, I will sustain
objections. And, specifically, I would expect
to sustain an objection to -- after we've
heard a conversation, if the question is, What
is happening in that conversation, that is an
objectionable question. . . . But if they are
pinpointed to matters . . . that leaves a
layperson with some ambiguity, I would allow
such a question. But the more generalized
questions I would not allow.
The judge several times sustained objections to questions
that appeared to call for unduly speculative or generalized
interpretations, but a good many interpretations were allowed and
some representative examples follow:
Excerpts from defendants' Kelsch's interpretations
conversations
-12-
Gianelli: "What, ah, you talk Referring to Homsi, whose
to that kid?" brother owned a motorcycle
Albertelli: "I was with him repair shop.
the next morning, and asked if
he wanted to take a ride, and
he said he had to take care of
the shop."
Albertelli: "Just in case, you "To make sure that they have
know, we want to go for a ride an alibi in place."
or something."
Gianelli: "Our way might be Referring to setting the fire.
the only right way."
Albertelli: "I didn't want to "He's trying to conceal any
make it look like I knew knowledge he had about by whom
anything." and how the fire was set."
Gianelli: "How's the pizza?" Referring to Romeo's Pizza
restaurant.
Gianelli: "This kid probably "He's placing blame on Mark
tried to burn the fuckin' Colangelo. . . . They're
place down. That's what I'm strategizing about what their
thinking." story would be."
Albertelli: "It was him?"
Gianelli: "Anyhow, that's the
story."
Gianelli: "Larry Murray came "This kid" refers to
over last night, and this kid, McCormack.
I don't know, he might be
talking a little bit."
Albertelli: "Not those guys, "He means that either Mr.
but someone else that I had Albertelli and/or Mr. Gianelli
talked about with it earlier." have spoken to at least three
Gianelli: "So we had three or or four separate individuals
four fucking parties going or groups to set the fire."
here."
Gianelli: "Just make sure it's Referring to the fact that the
right." arson should be done
correctly.
Police officers commonly help interpret conversations by
translating jargon common among criminals, either as experts, Fed.
-13-
R. Evid. 702-703, or as lay witnesses offering "opinion" testimony
"helpful [to the jury in] . . . determining a fact in issue," Fed.
R. Evid. 701. Such interpretations give the jury the benefit of an
independent body of specialized knowledge. See Fed. R. Evid. 702
advisory committee note; Kumho Tire Co. v. Carmichael, 526 U.S.
137, 150 (1999) (drug jargon expertise); 1 Dix et al., McCormick on
Evidence § 13, at 78 (6th ed. 2006); 4 Weinstein & Berger,
Weinstein's Federal Evidence § 702.04[1][c] (2d ed. 2006).
But a number of Kelsch's disputed interpretations were
peculiar to these defendants and depended largely on Kelsch's
immersion in the details of this investigation. Although
linguistically possible, calling such testimony "expert opinion"
would lend undue credibility to it and increase the risk of
reliance on information not properly before the jury as data on
which "experts in the particular field would reasonably rely," Fed.
R. Evid. 703, even though the "field" is merely the facts of the
case.
While these dangers are lessened by treating Kelsch's
interpretations as lay witness opinions, the interpretations do not
reflect a traditional reason for allowing lay opinions--that many
observations people make "every day in ordinary life cannot be
adequately described in words confined to descriptions of
observable phenomena." Weinstein & Berger, supra, § 701.02; see
also Fed. R. Evid. 701 advisory committee note. Still, Kelsch's
-14-
testimony undoubtedly had a potential to help the jury, which is
all Rule 701 requires for lay opinion.
Kelsch had investigated Gianelli's operations for years,
had became familiar with the voices of the major participants, had
interviewed witnesses related to the investigation, and had
reviewed materials seized from the defendants. That his
understanding of the oblique statements in the wiretaps might be
"helpful" to the jury is an understatement; some of the defendants'
wiretapped statements could be entirely unintelligible to the jury
absent some context-based interpretation.
For years on end, the defendants deliberately spoke in
unintelligible terms, surely to hamper prosecution of their crimes.
True, the traditional division of witness examination and counsel's
argument would call for the government to shower the jury with
evidence of those oblique exchanges without any meaningful way of
explaining it before the closing arguments of a multi-week (or
multi-month) trial. And in some trials there might be a very large
number of wiretaps introduced.
So, while not the most traditional lay opinion, Kelsch's
testimony formally meets the requirements of Rule 701, being
"rationally based on [his] perception" of the conversations, United
States v. Santiago, 560 F.3d 62, 66 (1st Cir. 2009); "helpful" in
the Rule 701 sense broadly understood; and yet not based on expert
knowledge within the meaning of Rule 702. The problems, such as
-15-
they are, with such testimony turn rather on dangers that have been
explored in various contexts in other cases:2
-that the testimony may effectively
smuggle in inadmissible evidence (e.g.,
hearsay not within some exception and perhaps
inadmissible under the Confrontation Clause);
-that the witness may be drawing
inferences that counsel could do but with
advantages as to timing, repetition and the
imprimatur of testifying as a law enforcement
officer;
-that the witness may usurp the jury's
function by effectively testifying as to guilt
rather than merely providing building blocks
for the jury to draw its own conclusion;
-that the witness may be unable to
point to any rational basis for the
interpretation offered or be doing nothing
more than speculating; and
-that the witness may act as a summary
witness without meeting the usual
requirements.
These dangers, which are present in scenarios other than
interpreting shielded or oblique language, vary (both in degree and
kind) with the facts--as do the need for the testimony and the
extent to which the witness' unique experience permits him to be
helpful. There are also available safeguards including supervision
by the judge, cautionary instructions, and above all cross-
2
E.g., United States v. York, 572 F.3d 415, 425-26 (7th Cir.
2009); United States v. Flores-de-Jesús,
569 F.3d 8, 20-21 (1st
Cir. 2009); United States v. Freeman,
498 F.3d 893, 902-05 (9th
Cir. 2007); United States v. Dukagjini,
326 F.3d 45, 53-59 (2d Cir.
2002).
-16-
examination, which is more helpful as to some dangers than others.
Where the witness can explain the basis for his specific
interpretations, decisions in other circuits have upheld admission
of such testimony by law enforcement officers,3 especially in
organized crime and terrorism cases.
In this case, the need for interpretation was clear, and
there is no indication that the potential dangers harmfully
manifested themselves. The district judge's in limine ruling
(quoted above) demonstrates that he gave the need for the testimony
careful consideration and ruled that it must be limited to
conversations that were unclear; he also sustained several
objections to questions calling for speculative answers and gave a
cautionary instruction at the end of the trial.
Minimizing another set of dangers, Kelsch said that the
opinions were his own and that he was not purporting to represent
collective knowledge. When pressed by defense counsel for the
bases of his interpretations, Kelsch did not, as the defendants
claim and the Second Circuit condemned in Grinage, rely on broad
appeals to "the totality of the investigation" but instead usually
3
Compare United States v. Jayyousi, 657 F.3d 1085, 1103-04
(11th Cir. 2011), and United States v. El-Mezain,
664 F.3d 467,
513-15 (5th Cir. 2011), and United States v. Rollins,
544 F.3d 820,
831-33 (7th Cir. 2008), with United States v. Grinage,
390 F.3d
746, 749-51 (2d Cir. 2004) (excluding such testimony where the
witness said it rested on knowledge of "the entire investigation").
-17-
pointed to sources of information such as statements from Homsi and
McCormack, other recorded conversations, and surrounding events.
Kelsch did say at the start of his redirect examination
that his opinions drew on all that he learned in the investigation,
and in a single area of questioning Kelsch stated that his opinion
that the arson was motivated by extortion was based on his
familiarity with the overall case. But the interpretations Kelsch
offered were his own, and the wiretaps backed up Kelsch's inference
as to the purpose of the arson. And he was subject to cross-
examination as to basis and possible grounds to impeach his
testimony.
As to specific interpretations of words or phrases,
defense counsel vigorously cross-examined Kelsch regarding their
plausibility and bases, which resulted in concessions that certain
opinions were not derived from his arson expertise, as well as
acknowledgments of alternative interpretations of several ambiguous
statements. Where such alternatives can be offered, the
plausibility of the witness' own position--unlike, say, that of a
medical expert--is readily measured by the jury.
Similarly, defense counsel impeached Kelsch at trial with
a prior statement in a warrant affidavit that the motive was
retaliation for past acts rather than coercion amounting to
extortion; but Kelsch explained that he had prepared the affidavit
only months into his participation in the investigation and without
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the benefit of information from Homsi and McCormack directly
supporting the extortion rationale. And the jury had Homsi's
testimony as well as other evidence to make its judgment.4
The defendants raise similar objections to chunks of
testimony from three other law enforcement witnesses who offered
interpretations similar to Kelsch's for intercepted calls relevant
to the gambling charges, but they forfeit these claims as to two of
the witnesses by citing no specific testimony. Of the remaining
objections, which concern the testimony of State Police Sgt.
Russolillo, only three were preserved at trial (and only these need
be discussed, for the others were not plain error).
The first preserved objection as to Russolillo concerned
the following question and answer:
Q: And toward the middle of Page 2 when Dennis
Albertelli says, "She had 80 bucks going into
the late game." She said, "Well, what's
left," and so on. What's your understanding
of who was being discussed with the "she"?
A: Gisele Albertelli.
The defendants do not claim that the identification of Gisele was
faulty, nor do they attempt to explain why it might have been a
debatable proposition or how the answer was prejudicial. The
4
Homsi testified to statements by Albertelli in soliciting
Homsi's assistance--e.g., "[T]hey had a lot of money tied up in the
[Lynnfield] Big Dog and the guy was holding them back, stalling,
and that was it, they wanted to burn the pizza joint"--and recorded
calls between Gianelli and Albertelli included references to the
arson as "our only hope" and "the only right way" to resolve
problems with Colangelo.
-19-
objection was generic, but to the extent we construe it as raising
the issues discussed above regarding Kelsch's testimony, it fails
for the reasons already set out.
That brings us to the remaining two preserved objections
to Russolillo's testimony, which are of a different character in
that they claim he twice offered forbidden "role-in-the-offense"
testimony in discussing first a letter and then a phone call:
Q: [As to the letter] If those particular
individuals lost, how would Mr. Albertelli
benefit?
A: He benefits from the commission that he has
from the losses
Q: And did you understand Mr. Albertelli's
role in this organization to be more than just
an agent?
A: Yes.
Q: And what did you understand his role in
this organization to be?
A: To be partners.
Q: Towards the end of the [recorded]
conversation, Mr. Gianelli says, "Oh then take
it from him. Take it from him. We're all
right." What is your understanding of the
relationship in this organization, in the
hierarchy, between Mr. Albertelli and Mr.
Gianelli as reflected by that call?
A: Dennis Albertelli couldn't make the
decision on this. He had to refer to his
boss, Arthur Gianelli.
The defendants liken this to testimony condemned in
United States v. Meises, 645 F.3d 5, 14-15 (1st Cir. 2011). There,
the government's first witness was the lead investigator in the
case, and the government opened its case-in-chief by walking the
witness through all of the steps in the investigation, culminating
-20-
in a question to the case agent of his opinion, based on the
totality of the investigative steps described, about the role of
each defendant in the criminal organization. Id. at 14. This, we
held, was improper.
But Meises involved the kind of preview testimony by a
summary witness that is especially troublesome, United States v.
Casas, 356 F.3d 104, 118-20 (1st Cir. 2004), and purports to sum up
(in advance of the evidence) the government's overall case. In
contrast, Russolillo's specialized knowledge of gambling was
unquestioned, his testimony was expressly tied to the implications
of specific pieces of evidence, and it was not used as a
substantive preview. There was no abuse of discretion--let alone
plain error--in permitting his testimony here.
Looking finally to future cases, we think that district
judges faced with interpretive testimony typified by Kelsch's ought
to start, as the trial judge did here, by considering whether the
testimony is meaningfully helpful to the jury, compared to the
traditional device of saving the interpretive inferences for
counsel in closing argument, and whether limitations can
sufficiently mitigate the dangers noted earlier. And, to the
extent possible, such limitations ought to be identified.
Further, the witness should be prepared to explain the
basis for any challenged interpretation and may not say only that
it is based on "the totality of the investigation." Unlike some
-21-
lay opinions (e.g., the car was going "fast"), an interpretation
of a phrase or reference ought to be explicable, and dangers
already adverted to lurk in one that cannot be explained. The
trial judge may need in some cases to take proffers or allow cross-
examination outside the presence of the jury.
Lastly, the basis relied upon for an interpretation must
be one not unduly troubling to the trial judge because of apparent
unreliability, undue prejudice, importation of inadmissible hearsay
or some other circumstance that might make it unsuitable as an
explanation. The variety of concerns and variations in cases makes
it difficult to lay down rules and appropriate for wide discretion
on the part of the trial judge reviewed only for the clearest
abuse.
Attorney-client privilege. A contested issue at trial
was the motive underlying the attempted arson; the government's
case on certain of the counts required proof that the motive, as
charged in the indictment, was to extort control over the Lynnfield
restaurant project from Colangelo and Fitzsimons. The defense
countered by urging that at worst the motive was merely revenge.
The government offered both direct and wiretap evidence pointing to
extortion. See note 4, above. A third line of evidence raised the
attorney-client issue.
Over objection based on privilege, Mark O'Connor, an
attorney and long-time friend of Albertelli, testified about a
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conversation he had with Albertelli about "various strategies that
might be employed to get control" of the Lynnfield restaurant from
the "guys on the other side":
[Albertelli said] [i]f they could cut off
their funds, wouldn't they then fall faster in
a financial house of cards? And I said, Sure,
but how is that going to happen? And Mr.
Albertelli said, Well– . . .--what if there
was a fire at the Big Dog North Reading and
they weren't able to take any income out of
the place?
As O'Connor vehemently discouraged such an effort, Albertelli
inquired, "[H]ow illegal is arson?"
Whether or not O'Connor was acting as Albertelli's lawyer
in the conversation or merely as a friend, Albertelli forfeited the
privilege under the crime-fraud exception which excludes
communications from client to attorney made (1) when the client was
engaged in (or was planning) criminal or fraudulent activity, and
(2) with the intent to facilitate or conceal the criminal or
fraudulent activity. In re Grand Jury Proceedings (Gregory P.
Violette), 183 F.3d 71, 74-76 (1st Cir. 1999).
In some situations, nothing sinister is implied by asking
about the legality of conduct, possible penalties or both; but
Albertelli certainly knew that arson was illegal, and his threshold
question--"If they could cut off their funds . . . "--revealed his
motive for the crime and the intent to facilitate its commission
through his inquiries of O'Connor. Once a plan to commit a crime
-23-
is conceived, disclosing that to an attorney waives the privilege.
Id. at 74-76.
Organized crime references. To support racketeering
conspiracy charges, the government introduced evidence of
Gianelli's association with organized crime and mafia figures
through, for example, "rent" and "tribute" payments, as well as the
use of organized crime figures to collect debts. In closing, the
government argued that the payments were in exchange for freedom to
operate the gambling operations as well as intimidation.
Iacaboni, Albertelli, and Gisele argue on appeal that all
of the evidence of mafia associations was particular to Gianelli
and unfairly prejudicial as to them. But, having failed to object
a trial, these defendants can prevail only by showing not only
error but also a likely effect on the result, United States v.
Olano, 507 U.S. 725, 731-32 (1993), which they cannot do. As it
happens, the jury acquitted two of the three defendants on
racketeering-related charges, bearing out its ability to disregard
any inference of guilt by association. United States v. Flores-
Rivera,
56 F.3d 319, 326 n.2 (1st Cir. 1995).
Sufficiency. Iacaboni also challenges the sufficiency of
the evidence against him on the arson and extortion counts, arguing
that they rely on a conspiracy that was never proved, at least as
to him. The question is whether "any rational factfinder could
have found that the evidence presented at trial, together with all
-24-
reasonable inferences, viewed in the light most favorable to the
government, established each element of the particular offense
beyond a reasonable doubt." United States v. Poulin, 631 F.3d 17,
22 (1st Cir. 2011).
As previously recounted, Albertelli recruited Iacaboni on
Gianelli's behalf to provide an alternative to Homsi's crew;
Iacaboni obtained a diagram of the building and told Albertelli
that he had recruited his own arsonist and discussed with that man
specific plans for setting the building ablaze that same evening.
This is not mere preparation to enter the conspiracy, as Iacaboni
claims, but further along the path from agreement to completion
than many conspiracies.
It was for the jury to determine whether the evidence
showed a single agreement that included Iacaboni, see United States
v. Jones, 674 F.3d 88, 92 (1st Cir. 2012), and the limited success
by Homsi's crew did not remotely amount to a withdrawal by
Iacaboni. United States v. Munoz,
36 F.3d 1229, 1234 (1st Cir.
1994). In short, no error flawed Iacaboni's conviction as to the
arson and extortion counts.
Iacaboni also challenges the sufficiency of the evidence
against him on the gambling counts, arguing that the evidence of
his participation was too thin to support the jury's finding that
he "conduct[ed]" an illegal gambling business within the meaning of
18 U.S.C. § 1955. But the statute "applies even to individuals who
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have no role in managing or controlling the business and who do not
share in its profits," and "proscribes any type or degree of
participation in an illegal gambling business, except participation
as a mere bettor." United States v. Zannino, 895 F.2d 1, 10 (1st
Cir. 1990).
On Count 3, the evidence included a call between
Albertelli and Iacaboni where Albertelli relayed betting lines for
various football games; another call where Iacaboni offered to
bring a large-scale bettor to Albertelli and split the profits
evenly; and testimony from a witness who said she wrote bets "a
couple of times" with Iacaboni. A jury could find that Iacaboni
conducted a gambling operation.
Iacaboni also says that Count 5 essentially charged him
with conducting Albertelli's football card business but that the
evidence showed he and Albertelli had separate football card
businesses, and Iacaboni's was too small to trigger criminal
penalties under section 1955. See 18 U.S.C. § 1955(b)(1)(ii)
(requiring five or more persons who conduct, finance, manage,
supervise, direct, or own the illegal gambling business).
Intercepted calls between Iacaboni and Albertelli showed
that Iacaboni sold his football card operation to Albertelli around
November 2003, with Iacaboni continuing to share in the profits;
and the evidence supported a finding that--in addition to
Albertelli and Iacaboni--Gisele, Randy Albertelli, James Nadeu,
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Micahel Schultzberg, John Onanian, Harold Marderosian, and Alan
Bernstein all conducted that illegal business.
In closing, in connection with a number of the issues but
especially the disputed testimony by Kelsch, we note that the
government had a strong case which it was difficult for the
defendants to counter. The evidence against Iacaboni has already
been described above and much of the evidence against the other two
principal defendants (Gianelli and Albertelli) was from recordings
of their own calls, a number of which were incriminatory without
being overly cryptic.
One witness (Homsi), the intermediary with the arsonists,
testified for the government to describe his conversations with
Albertelli. Gianelli was recorded on various calls inquiring
repeatedly about Homsi's progress and pressing Albertelli to speed
up the arson plans; after the arrests, Gianelli expressed concern
that one the arsonists might be talking. One of the two arsonists
found at the scene (McCormack) also testified for the government.
And Albertelli's discussion with his lawyer friend featured a
telling admission. There is no reason to believe here that
innocent defendants have been convicted.
Affirmed.
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ADDENDUM
Count # Crime
1 Racketeering conspiracy, 18 U.S.C. § 1962(d)
2 Racketeering, 18 U.S.C. § 1962(c)
3-5 Illegal gambling business, 18 U.S.C. § 1955
6-7 Transmission of wagering information, 18 U.S.C.
§ 1084
8, 184 Money laundering conspiracy, 18 U.S.C. § 1956(h)
9-183, 185- Money laundering, 18 U.S.C. § 1956(a)(1)(A)(I),
236, 273, (B)(I)
278-327
267 Conspiracy to commit arson, 18 U.S.C. § 371
268 Arson, 18 U.S.C. § 844(I)
269 Use of fire/explosive to commit a felony, 18
U.S.C. § 844(h)(1)
270, 274, 276 Conspiracy to commit extortion, 18 U.S.C. § 1951
271, 275, 277 Attempted extortion, 18 U.S.C. § 1951
272 Interstate travel in aid of racketeering, 18
U.S.C. § 1952(a)(3)
328, 330, 332 Conspiracy to commit extortionate collection of
credit, 18 U.S.C. § 894(a)(1)
329, 331, 333 Extortionate collection of credit, 18 U.S.C.
§ 894(a)(1)
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Defendant Counts Counts Sentence
Charged Acquitted
Gianelli 1-183, 185- 5, 272 271 months
272, 274-323,
328-333
D. Albertelli 1-183, 185- 272 216 months
273, 278-300,
324-327
Iacaboni 1-3, 5, 267- 2 183 months
271
G. Albertelli 1, 2, 5, 184- 185-187, 201 21 months
232
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