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Summary: 14-2197-cr United States v. Vernace UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2015 (Argued: September 18, 2015 Decided: February 2, 2016) Docket No. 14-2197-cr UNITED STATES OF AMERICA, Appellee, v. BARTOLOMEO VERNACE, AKA Pepe, AKA Bobby, AKA Bobby Glasses, AKA Robert, Defendant-Appellant, ROBERT WEHNERT, AKA Bobby Werner, ANTHONY VAGLICA, AKA Bosch, MICHAEL DOLPHIN, VITO CORTESIANO, AKA Vito Love, Defendants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTE
Summary: 14-2197-cr United States v. Vernace UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2015 (Argued: September 18, 2015 Decided: February 2, 2016) Docket No. 14-2197-cr UNITED STATES OF AMERICA, Appellee, v. BARTOLOMEO VERNACE, AKA Pepe, AKA Bobby, AKA Bobby Glasses, AKA Robert, Defendant-Appellant, ROBERT WEHNERT, AKA Bobby Werner, ANTHONY VAGLICA, AKA Bosch, MICHAEL DOLPHIN, VITO CORTESIANO, AKA Vito Love, Defendants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTER..
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14‐2197‐cr
United States v. Vernace
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
(Argued: September 18, 2015 Decided: February 2, 2016)
Docket No. 14‐2197‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
BARTOLOMEO VERNACE, AKA Pepe, AKA Bobby, AKA Bobby Glasses,
AKA Robert,
Defendant‐Appellant,
ROBERT WEHNERT, AKA Bobby Werner, ANTHONY VAGLICA, AKA Bosch,
MICHAEL DOLPHIN, VITO CORTESIANO, AKA Vito Love,
Defendants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
Before:
SACK, CHIN, and DRONEY, Circuit Judges.
Appeal from a judgment of the United States District Court for the
Eastern District of New York (Townes, J.), convicting defendant of conspiring to
engage in a racketeering enterprise in violation of the Racketeering Influenced
and Corrupt Organizations Act, using, carrying, and possessing a firearm in
relation to a crime of violence, and operating an illegal gambling business. On
appeal, defendant contends that (1) the evidence at trial was insufficient to
support his conviction on certain predicate racketeering acts, (2) the district court
applied the wrong version of the firearm statute, and (3) a new trial is required
based on newly discovered evidence about a cooperating witness.
AFFIRMED.
M. KRISTIN MACE, Assistant United States
Attorney (David C. James, Amy Busa, Evan
M. Norris, Amir H. Toossi, Assistant
United States Attorneys, on the brief), for
Robert L. Capers, United States Attorney
for the Eastern District of New York,
Brooklyn, New York, for Appellee.
SETH GINSBERG, Law Office of Seth Ginsberg,
New York, New York, for Defendant‐
Appellant.
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CHIN, Circuit Judge:
In 1981, the two owners of the Shamrock Bar in Queens, New York,
were shot to death in their establishment, following an altercation that began
with a spilled drink. The murders became known as the Shamrock Murders.
More than thirty years later, defendant‐appellant Bartolomeo
Vernace was convicted, following a jury trial, of participating in the Shamrock
Murders. On May 30, 2014, the district court entered judgment convicting him of
(1) conspiring to engage in a racketeering enterprise in violation of the
Racketeering Influenced and Corrupt Organizations Act (ʺRICOʺ), 18 U.S.C.
§ 1962(c) and (d), (2) using, carrying, and possessing a firearm in relation to a
crime of violence in violation of 18 U.S.C. § 924(c), and (3) operating an illegal
gambling business in violation of 18 U.S.C. § 1955.
Specifically, on the RICO count, the jury found that Vernace
committed nine predicate racketeering acts in support of the conviction,
including the Shamrock Murders and heroin distribution and related
conspiracies. The district court sentenced him principally to life imprisonment
for the RICO conspiracy, ten yearsʹ imprisonment for the § 924(c) violation to be
‐ 3 ‐
served consecutively, and five yearsʹ imprisonment on the illegal gambling count
to be served concurrently.
Vernace appeals, arguing that (1) the evidence was insufficient for
the jury to find that the Shamrock Murders and heroin offenses were related to
the RICO conspiracy, (2) he was convicted under the wrong version of § 924(c),
and (3) newly discovered evidence requires that we grant him a new trial. For
the reasons set forth below, we affirm.
BACKGROUND
I. The Facts
At trial, the Government elicited testimony from 35 witnesses,
including cooperators from the Gambino crime family and another ʺLa Cosa
Nostraʺ crime family, who testified about Vernaceʹs role in the Gambino crime
family. We recount below that evidence in the light most favorable to the
Government. See United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012).
A. Vernaceʹs Involvement in the Gambino Crime Family
When Vernace was arrested on January 17, 2011, he was, by all
accounts, a member of the Gambino crime familyʹs three‐person ruling panel, in
charge of the operations of the organization. The Gambino crime family is an
‐ 4 ‐
organized operation that generates money for its members through criminal
activities, including drug trafficking, robbery, extortion, illegal gambling, and
loansharking. It is one of the five organized crime families in New York City that
make up ʺLa Cosa Nostra.ʺ Gambino members start as ʺassociatesʺ before they
are inducted as ʺsoldiers,ʺ who run their own crews of associates, and then move
up to become ʺcaptains.ʺ
B. The Shamrock Murders
John DʹAgnese and Richard Godkin, the owners of the Shamrock Bar
in Queens, New York, died on April 11, 1981 ‐‐ DʹAgnese from a single bullet to
the sternum and Godkin from a single bullet to the head.
The evening before, on April 10, 1981, someone spilled a drink on
the dress of Frank Riccardiʹs girlfriend at the Shamrock Bar. At the time, Riccardi
was a Gambino associate in Anthony Ruggianoʹs crew. Riccardi got visibly
upset; this attracted the attention of the bar owners. When DʹAgnese introduced
himself as owning the Shamrock Bar and attempted to calm Riccardi down,
Riccardi retorted, ʺNo, you donʹt. I run this place.ʺ App. at 220. He grabbed a
bottle of vodka and set it down next to him. ʺSee? This is my place. I do what I
‐ 5 ‐
want in here.ʺ Id. at 221. Godkin then intervened, and after a conversation,
Riccardi appeared to have calmed down. Riccardi then left.
Riccardi, however, went next to Joseph Corozzoʹs social club, a
Gambino gambling operation that members frequented. The social club was
unmarked: Only a ʺmembers onlyʺ sign adorned its door. There, Riccardi found
Vernace and Ronald Barlin. Vernace had been a Gambino associate since the
early 1970s; though he and Barlin were once part of the same crew as Riccardi,
they were now part of the same crew as Corozzo. Riccardi, Vernace, and Barlin
together departed for the Shamrock Bar.
They entered through the front door. Barlin drew his gun. The
crowd scattered. Riccardi went for DʹAgnese. Vernace went for Godkin.
Vernace had Godkin pinned to the shuffleboard machine. ʺWhereʹs your gun
now, tough guy? Go for your gun. Go ahead. Go for it,ʺ Vernace taunted,
holding his own gun. App. at 224. Two gunshots were fired. DʹAgnese
collapsed; Godkin stumbled. Riccardi and Vernace bolted for the front door;
Barlin ran, too, but not before he fired a round into the ceiling, capping their
escape. DʹAgnese and Godkin had been shot ‐‐ they died the next day.
‐ 6 ‐
C. Heroin Distribution
Earlier, in January 1981, Special Agent Louis Diaz of the Drug
Enforcement Agency was investigating undercover a heroin trafficking ring. He
met Bruce Erbacher and Herbert Frank, two heroin dealers. Diaz told Erbacher
and Frank that he was looking for a new source of supply for his clients in
Philadelphia. Erbacher revealed that his suppliers were ʺwell organized,ʺ
meaning ʺorganized crime, Italian Mafia, La Cosa Nostra.ʺ App. at 316. Diaz
later asked Frank if this meant ʺconnected[,] [f]amily.ʺ Id. at 318. Frank
responded, ʺyou got it.ʺ Id. at 319. After several heroin transactions, Erbacher
mentioned during a conversation that his suppliers were ʺRon and Pepe.ʺ Id. at
321. Though Vernace sported many nicknames throughout the years, at least one
of them around that time was ʺPepe.ʺ
At the time, Erbacher and Frank also dealt drugs with George
Gleckler and his girlfriend. In conversations during these dealings, Glecklerʹs
girlfriend testified that she heard, from time to time, the names ʺPepe and Ron.ʺ
Id. at 379. Then, at a dinner party one night at Frankʹs apartment, she saw
Vernace and an associate come by and speak with Gleckler and Frank for fifteen
‐ 7 ‐
or twenty minutes in a bedroom. Then, Gleckler spoke with Frank. Afterward,
Gleckler told his girlfriend that they now wanted him to sell heroin, too.
On May 13, 1981, Agent Diaz, after obtaining a warrant, proceeded
to Frankʹs apartment to make an arrest. There he found and arrested not only
Frank, but also Barlin and Anthony Cuccio, another Gambino member. From the
premises, he seized heroin, a scale, a sawed‐off shotgun, and $50,000 in cash. As
he was making these arrests and seizures, the phone rang. The man on the
phone identified himself as Pepe and asked to speak with Cuccio. Pepe asked
Cuccio, ʺIs everything okay?ʺ Id. at 327. When Cuccio answered, ʺno,ʺ they both
hung up. Id.
D. Vernaceʹs Rise and Arrest
Vernace went into hiding following the Shamrock Murders and after
Barlin and the others had been arrested and indicted. He did not reappear until
the mid‐1980s. Starting then, Gambino members would see him periodically at
Gambino social clubs or Christmas parties. By the late 1990s, Vernace was
formally inducted as a soldier. In 2008, when the members of the Gambino crime
familyʹs ruling panel were arrested, Vernace and two others took over.
‐ 8 ‐
On January 20, 2011, the Government arrested Vernace at a café that
he owned in Queens, New York, which also housed video gambling machines.
Several thousand dollars in cash were seized.
II. Proceedings Below
The Government charged Vernace with three counts: RICO
conspiracy, a § 924(c) violation, and illegal gambling. On April 17, 2013,
following a month‐long trial, the jury returned a guilty verdict on all counts. On
May 15, 2013, Vernace moved for a judgment of acquittal.
On February 14, 2014, while the motion was still pending, the
Government informed Vernace that it had learned in November 2013 that one of
the cooperating witnesses had been violating his cooperation agreement since
approximately 2010. The witness disclosed that he had been engaging in illegal
gambling and collecting illegal gambling debts on behalf of others. On May 8,
2014, Vernace moved for a new trial pursuant to Federal Rule of Criminal
Procedure 33 on the basis of this evidence that the witness had been violating his
cooperation agreement.
On May 27, 2014, the district court denied both motions and
sentenced Vernace principally to life imprisonment for the RICO conspiracy, ten
‐ 9 ‐
yearsʹ imprisonment for the § 924(c) violation to be served consecutively, and five
yearsʹ imprisonment on the illegal gambling count to be served concurrently.
This appeal followed.
DISCUSSION
Vernace contends on appeal that (1) the evidence was insufficient as
to certain predicate racketeering acts, (2) the wrong version of § 924(c) was
applied, and (3) newly discovered evidence requires that he be granted a new
trial. We address each argument in turn.
I. Sufficiency of the Evidence
We review de novo challenges to the sufficiency of evidence, but must
uphold the conviction if ʺany rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.ʺ Jackson v. Virginia, 443 U.S.
307, 319 (1979). In conducting this review, we ʺmust view the evidence in the
light most favorable to the government, crediting every inference that could have
been drawn in the governmentʹs favor, and deferring to the juryʹs assessment of
witness credibility and its assessment of the weight of the evidence.ʺ Coplan, 703
F.3d at 62 (quoting United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008)).
‐ 10 ‐
Where the Government asks the jury to find an element of the crime
through inference, ʺ[t]he jury may not be permitted to conjecture . . . or to
conclude upon pure speculation or from passion, prejudice or sympathy.ʺ United
States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972) (quoting Curley v. United States,
160 F.2d 229, 232 (D.C. Cir. 1947)); see, e.g., United States v. Stewart, 485 F.3d 666,
671 (2d Cir. 2007) (ʺBoth the existence of a conspiracy and a given defendantʹs
participation in it with the requisite knowledge and criminal intent may be
established through circumstantial evidence.ʺ). Instead, ʺ[w]e must also be
satisfied that the inferences are sufficiently supported to permit a rational juror to
find that the element, like all elements, is established beyond a reasonable
doubt.ʺ United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995).
Vernace argues that the evidence at trial was insufficient for the jury
to find that (a) the Shamrock Murders were ʺrelatedʺ to the racketeering
enterprise or (b) he engaged in a heroin conspiracy or that any such conspiracy
was ʺrelatedʺ to the enterprise. We disagree.
A. Relatedness Under RICO
RICO makes it unlawful for an individual to conduct or conspire to
conduct an enterprise by engaging in ʺa pattern of racketeering activity.ʺ 18
‐ 11 ‐
U.S.C. § 1962(c); see id. § 1962(d). A pattern of racketeering activity involves, at
minimum, two predicate racketeering activities ‐‐ including, for example,
murder, drug trafficking, and illegal gambling ‐‐ that occur within ten years of
one another. Id. § 1961(1), (5).
But RICO does not apply to ʺthe perpetrators of ʹisolatedʹ or
ʹsporadicʹ criminal acts.ʺ United States v. Indelicato, 865 F.2d 1370, 1383 (2d Cir.
1989) (en banc) (quoting Sun Savings & Loan Assʹn v. Dierdorff, 825 F.2d 187, 192
(9th Cir. 1987)). Criminal conduct only ʺforms a pattern if it embraces criminal
acts that have the same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events.ʺ H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S.
229, 240 (1989) (emphasis added) (quoting 18 U.S.C. § 3575(e) (1982)). That is,
predicate acts ʺmust be related to each other (ʹhorizontalʹ relatedness), and they
must be related to the enterprise (ʹverticalʹ relatedness).ʺ United States v.
Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992).
Vertical relatedness requires ʺthat the defendant was enabled to
commit the offense solely because of his position in the enterprise or his
involvement in or control over the enterpriseʹs affairs, or because the offense
‐ 12 ‐
related to the activities of the enterprise.ʺ United States v. Burden, 600 F.3d 204,
216 (2d Cir. 2010). ʺ[I]t is not necessary,ʺ however, ʺthat the offense be in
furtherance of the enterpriseʹs activities for the offense to be related to the
activities of the enterprise.ʺ United States v. Bruno, 383 F.3d 65, 84 (2d Cir. 2004).
Further, ʺthe same or similar proof [that] establish[es] vertical relatednessʺ may
also establish horizontal relatedness, because ʺthe requirements of horizontal
relatedness can be established by linking each predicate act to the enterprise.ʺ
United States v. Daidone, 471 F.3d 371, 375 (2d Cir. 2006) (per curiam); see also
Indelicato, 865 F.2d at 1382 (considering evidence of ʺtemporal proximity, or
common goals, or similarity of methods, or repetitionsʺ).
B. The Shamrock Murders
Vernace argues that the Shamrock Murders were not related to the
activities of the Gambino crime family. Those murders, he contends, resulted
instead from a mere ʺpersonal dispute over a spilled drink.ʺ Appellantʹs Br. at
46.
To begin, Vernaceʹs theory carries with it an air of implausibility. A
jury need not credit a theory that is not supported ʺby reason and common
sense.ʺ Grey v. Heckler, 721 F.2d 41, 50 (2d Cir. 1983) (Van Graafeiland, J.,
‐ 13 ‐
dissenting). Vernace argues that a mere spilled drink somehow cascaded into
two brutal, and very public, murders. But the jury, seeking to make sense of the
Shamrock Murders, could have reasonably rejected this theory and found instead
that the Shamrock Murders were related to the activities of the Gambino crime
family.
From the evidence, the jury could have reasonably inferred that
Riccardi enlisted Vernace and Barlin to kill the two bar owners for disrespecting
him as a Gambino associate and to uphold the reputation of the Gambino crime
family. Riccardi was upset over the spilled drink, but may also have wanted to
demonstrate to DʹAgnese and Godkin that the Gambino crime family ʺr[an] th[e]
place.ʺ App. at 220. During his interactions at the Shamrock Bar, Riccardi
suffered an affront (real or perceived) to himself and to his authority as a
Gambino associate, and, by extension, to the family. Vernace, in turn, helped
him address the affront. That is, a reasonable jury could have concluded Vernace
went so far as to commit murder in a crowded bar because such a public display
related to preserving (and even enhancing) the reputation of the Gambino crime
family and its members.
‐ 14 ‐
But the Shamrock Murders link back to the Gambino crime family in
another way. The jury could also have reasonably concluded that Vernace
participated in the Shamrock Murders to further his own reputation, thereby
enabling him to more effectively carry out the activities of the Gambino crime
family. The jury heard testimony that one of the goals of the Gambino crime
family was ʺ[t]o make moneyʺ through illicit means. Id. at 114. By building their
own reputations, Gambino members gained ʺrespect in the streetʺ that they
could directly leverage in the familyʹs loansharking and extortion activities.
Govʹt App. at 65‐66 (ʺ[If] people are afraid of you, itʹs easier for you to make
money for the Gambino family.ʺ). For example, the Government presented a
secretly recorded conversation where one of Vernaceʹs associates used the
Shamrock Murders to collect loansharking debts by telling the victim that
Vernace was ʺthe real thingʺ and after warning that those sorts of homicides
ʺhappen[] every day.ʺ Id. at 12. The jury could have reasonably concluded that
Vernace found it valuable to participate in the Shamrock Murders because doing
so would later help him carry out other activities that benefitted the Gambino
crime family.
‐ 15 ‐
Our case law supports the proposition that Vernaceʹs conduct
therefore lies within the heartland of what RICO targets. We have noted that
ʺ[t]he question of whether acts form a pattern ʹrarely is a problem with a criminal
enterprise, as distinct from a lawful enterprise that commits occasional criminal
acts.ʹʺ Minicone, 960 F.2d at 1108 (quoting United States v. Masters, 924 F.2d 1362,
1366 (7th Cir. 1991)); see Daidone, 471 F.3d at 376 (ʺ[S]prawling, complex
enterprises, like the Luchese crime organization, are the prototypical targets of
RICO.ʺ). This is because the predicate acts will share common goals (such as
increasing or protecting the ʺposition of the enterpriseʺ or its members) and
common victims (such as ʺthose who threaten its goalsʺ) and will draw from ʺthe
same pool of associates . . . of the enterprise.ʺ Daidone, 471 F.3d at 376; see also
Burden, 600 F.3d at 218‐19 (finding relatedness where ʺviolence enhanced the
level of respectʺ for the racketeering enterprise and ʺgarner[ed] [members]
respectʺ). In this vein, it would have been reasonable for the jury to conclude
that the Shamrock Murders related to the Gambino crime family because Vernace
set out to promote the Gambino crime familyʹs reputation (and in turn, his own)
when he participated in the murders of DʹAgnese and Godkin .
‐ 16 ‐
Nonetheless, Vernace contends that his case is indistinguishable
from United States v. Bruno, where we concluded that the evidence was
insufficient to prove that two shootings (which we characterized as ʺsimply
personal mattersʺ) were related to New York Cityʹs Genovese crime family. 383
F.3d at 85. In Bruno, the defendant, a Genovese associate, recruited two of his
cousins (one of whom recruited another friend) to murder two other Genovese
associates. We noted that ʺnone of the shooters was a made member of the
Genovese Family[,] nor were the Shootings themselves sanctioned by the family,ʺ
and that it was ʺentirely reasonableʺ to conclude that the shootings were personal
matters related to the defendant owing the victims tens of thousands of dollars in
loansharking debts, the victimsʹ suspected role in previously setting the
defendant up to be robbed at a poker game, and the defendantʹs personal
animosity toward the victims. Id. at 74 & n.1, 85. We therefore concluded in
Bruno that the defendant committed the shootings for personal reasons unrelated
to the Genovese crime family. Id. at 85. Vernace asserts that, like the shootings in
Bruno, the Shamrock Murders stemmed from a personal dispute, none of the
participants was an inducted member, the murders were not sanctioned, Riccardi
obtained assistance from friends who were not in his crew, higher ups
‐ 17 ‐
considered killing Riccardi for his involvement, and the participants laid low
after the murders.
Vernace makes too much of the similarities between his case and
Bruno. For one, where it was understandable in Bruno that the defendant would
violently retaliate for personal reasons against two individuals ‐‐ who sought to
collect tens of thousands of dollars of loansharking debts from him and who he
suspected had robbed him in the past ‐‐ the personal angle here is far weaker and
not one the jury was obliged to credit. Further, even if the dispute at the
Shamrock Bar was initially personal, it grew to be much more. For Vernace and
Barlin, the spilled drink was not entirely personal: They were uninvolved; they
were not there. We certainly did not hold in Bruno that a jury must find that all
predicate acts with a personal dimension are unrelated to a charged RICO
conspiracy.
As to the other factual similarities with Bruno that Vernace draws on,
the jury could have rejected the weight that Vernace now assigns to that
evidence. The fact that the three participants in the Shamrock Murders were
only Gambino associates and not inducted soldiers was not dispositive. We look
at the criminal activities in which alleged participants in the racketeering
‐ 18 ‐
enterprise engage, not merely the labels that the enterprise uses to describe them.
See United States v. Brady, 26 F.3d 282, 289‐90 (2d Cir. 1994) (holding that
ʺsignificant criminal activity engaged in on behalf of the Family by associatesʺ
who were not ʺmade membersʺ could support RICO liability). Likewise, the
evidence that the murders were not sanctioned by the Gambino crime family, the
family sought to discipline Riccardi, and Vernace went into hiding did not
preclude a finding that the murders were related to the familyʹs activities. See
Bruno, 383 F.3d at 84 (holding that predicate acts need not be ʺin furtherance ofʺ
the enterprise). After all, Vernace was not punished for participating in the
Shamrock Murders ‐‐ he was, indeed, ultimately entrusted with ruling authority.
Accordingly, the evidence here was sufficient to support a
reasonable juryʹs conclusion that the Shamrock Murders were related to the
Gambino crime family.
C. Heroin Distribution
Vernace next argues that the evidence was insufficient for the jury to
find that between January 1981 and May 1981 he distributed or conspired to
distribute heroin or that such drug offenses related to the Gambino crime family.
At trial, however, multiple witnesses testified that during this period ʺRon and
‐ 19 ‐
Pepeʺ were supplying heroin. E.g., App. at 321. Testimony showed that Vernace
went by ʺPepe.ʺ And a reasonable juror could have concluded that ʺRonʺ was
none other than Ronald Barlin, Vernaceʹs partner from the Shamrock Murders.
In fact, as Barlin and others were being arrested for possession of heroin, Vernace
telephoned to check that everything was all right. Vernaceʹs participation was
further shown by testimony that he asked a dealer (Gleckler) to start dealing
heroin. A reasonable jury could have concluded on this evidence that Vernace
and his associates engaged in a heroin trafficking operation.
Vernace argues alternatively that any such activities were not related
to the Gambino crime family because the family did not sanction, and indeed
had rules against, drug dealing. He insists that any such activities were merely
personal affairs. Vernaceʹs challenge fails for much of the same reason that his
challenge to the Shamrock Murders failed. We have consistently held that
predicate acts need not be ʺin furtherance ofʺ the racketeering enterprise to be
related. E.g., Bruno, 383 F.3d at 84; Locascio, 6 F.3d at 943. The Gambino crime
family could have, by its internal rules, discouraged drug dealing, and still, as a
factual matter, been engaged in it as part of its racketeering activities. Indeed,
the jury heard evidence that this was the case here. Witnesses testified that the
‐ 20 ‐
Gambino crime family engaged widely in drug trafficking to generate money for
themselves. The jury further heard that high‐ranking Gambino members
regularly distributed drugs, used other lower‐ranked members to distribute
drugs, or refused to enforce the so‐called rule against drug dealing. It was
therefore reasonable to conclude that, despite a facial prohibition on drug
dealing, the Gambino crime family profited from it and Gambino members,
including Vernace, regularly participated in it. Accordingly, a reasonable jury
could have concluded that Vernace distributed and conspired to distribute
heroin in relation to the Gambino crime family.1
II. Section 924 Conviction
Vernace next contends that he was convicted and sentenced under
the wrong version of § 924(c), as a consequence of which, he argues, the
mandatory minimum for his offense was increased and his sentence was
required to be served consecutively. In 1981, when Vernace committed the
Shamrock Murders, § 924(c) provided that using or unlawfully carrying a
1 We also reject Vernaceʹs two other, related contentions. He argues that,
because the evidence was insufficient on the Shamrock Murders and heroin distribution
charges (1) there was prejudicial spillover into the additional charges and (2) the
evidence was also insufficient to support a § 924(c) conviction. As described above,
however, the evidence sufficiently demonstrated Vernaceʹs participation in both the
murders and the drug crimes, and it was likewise sufficient to demonstrate that
Vernace discharged a weapon in the course of those murders.
‐ 21 ‐
firearm in relation to a felony was subject to imprisonment of not less than one
nor more than ten years. See 18 U.S.C. § 924(c) (1976). A sentence was not
required to be imposed consecutively. See id.; see also United States v. Gaines, 594
F.2d 541, 545‐46 (6th Cir. 1979); United States v. Sudduth, 457 F.2d 1198, 1202 (10th
Cir. 1972).2
As relevant here, those provisions of § 924(c) were amended first in
1984 to provide for mandatory consecutive sentencing. See Act of Oct. 12, 1984,
Pub. L. No. 98‐473, § 1005, 98 Stat. 1837, 2138‐39 (codified as amended at 18
U.S.C. § 924(c)). In 1998, § 924(c) was amended once again to increase the
mandatory minimum from one to ten years. See An Act to Throttle Criminal Use
of Guns, Pub. L. No. 105‐386, 112 Stat. 3469 (1998) (codified as amended at 18
U.S.C. § 924(c)(1)(A)(iii)) (providing that any person who ʺuses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence or drug
trafficking crime . . . if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 yearsʺ).
2 In 1981, § 924(c) provided in relevant part that ʺthe term of imprisonment
imposedʺ shall not ʺrun concurrently with any term of imprisonment imposed for the
commission of such felonyʺ only ʺ[i]n the case of [a] second or subsequent conviction
under [§ 924(c)].ʺ There was no restriction on concurrent sentences for first convictions.
‐ 22 ‐
In the proceedings below, the more recently amended version of
§ 924(c) was applied. Because Vernace never argued below that an earlier
version of § 924(c) should have been utilized, assuming there was error, we
review for plain error. See United States v. Marcus, 628 F.3d 36, 41 (2d Cir. 2010).
We exercise our discretion to overturn a conviction only if (1) there is an error (2)
that is clear or obvious, rather than subject to reasonable debate, (3) that was not
harmless (and thus affected the defendantʹs substantial rights), and (4) that
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See United States v. Nouri, 711 F.3d 129, 138 (2d Cir. 2013).
Here, even assuming there was error, Vernace does not meet the
criteria under a plain error standard. First, the error was not clear or obvious.
The district court proceeded entirely based on the post‐1998 amended version of
§ 924(c). The indictment referenced the newly added subsections; the district
court instructed the jury by reading this statutory language; the verdict sheet
included the newly added element of ʺdischarg[ing]ʺ the firearm, which the jury
then found; the Presentence Report relied on this version; and Vernace was
ultimately convicted under this provision. Not once, however, did defense
counsel object to using the amended version of the statute. Second, the error was
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harmless. Vernace is serving a life sentence independent of his sentence on
Count Two, the § 924(c) count. His Guidelines range was calculated, and his
term of life imprisonment was imposed, irrespective of which version of § 924(c)
applied. Finally, we note that in his initial brief on appeal Vernace devotes only
one footnote to the sentencing issue ‐‐ and that footnote consists of only two
conclusory sentences. Under all these circumstances, the error, assuming there
was error, did not seriously affect the fairness, integrity, or public reputation of
the proceedings. Accordingly, we reject Vernaceʹs challenge to his § 924(c)
conviction.
III. Newly Discovered Evidence
Vernace finally contends that the Governmentʹs post‐trial revelation
about the cooperating witnessʹs violation of his cooperation agreement for
several years requires that Vernace be granted a new trial, as the newly
discovered evidence would have discredited this witnessʹs testimony. We
disagree.
We review a district courtʹs denial of a motion for a new trial based
on newly discovered evidence for abuse of discretion. United States v. Rivas, 377
F.3d 195, 199 (2d Cir. 2004); United States v. Persico, 645 F.3d 85, 109 (2d Cir. 2011)
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(commenting that ʺ[t]he motion is not favoredʺ (quoting United States v. Gilbert,
668 F.2d 94, 96 (2d Cir. 1981))). District courts may grant a new trial if ʺ(1) the
evidence [is] newly discovered after trial; (2) facts are alleged from which the
court can infer due diligence on the part of the movant to obtain the evidence; (3)
the evidence is material; (4) the evidence is not merely cumulative or
impeaching; and (5) the evidence would likely result in an acquittal.ʺ United
States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007).
There was no abuse of discretion here. The trial testimony showed
that the cooperator was a member of New York Cityʹs Bonanno crime family
from the age of twelve until his incarceration decades later. He testified as to
participating in crimes for the Bonanno crime family and with the Gambino
crime family. Those crimes, as he acknowledged during direct and cross‐
examination, included illegal gambling, robbery, and dealing drugs. More
seriously, he planned and committed a murder to ʺlevel[] [his] game upʺ; the
witness lured the victim to a social club and then shot him in the back of the
head. App. at 644.
The additional proposed evidence was merely cumulative or
impeachment evidence. The fact that the witness violated his cooperation
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agreement by engaging in gambling once again could only have been used to
further discredit him. In any event, the newly discovered evidence was
essentially more of the same, as the witness had testified to a long history of
illegal gambling through his association with the Bonanno crime family. Further,
in view of his admission to a brutal murder, the new evidence that the witness
was again engaging in illegal gambling could not have added much to Vernaceʹs
attempt to attack the witnessʹs credibility. We accordingly affirm the district
courtʹs denial of Vernaceʹs motion for a new trial.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district
court.
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