Filed: Nov. 12, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 11-12-2003 USA v. Merlino Precedential or Non-Precedential: Precedential Docket No. 01-4374 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Merlino" (2003). 2003 Decisions. Paper 84. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/84 This decision is brought to you for free and open access by the Opinions of the United States Co
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 11-12-2003 USA v. Merlino Precedential or Non-Precedential: Precedential Docket No. 01-4374 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Merlino" (2003). 2003 Decisions. Paper 84. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/84 This decision is brought to you for free and open access by the Opinions of the United States Cou..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-12-2003
USA v. Merlino
Precedential or Non-Precedential: Precedential
Docket No. 01-4374
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Merlino" (2003). 2003 Decisions. Paper 84.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/84
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PRECEDENTIAL
Filed November 12, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4374
UNITED STATES OF AMERICA
v.
JOSEPH MERLINO
a/k/a
SKINNY JOEY
Joseph Merlino,
Appellant
No. 01-4375
UNITED STATES OF AMERICA
v.
STEVEN MAZZONE,
Appellant
No. 01-4392
UNITED STATES OF AMERICA
v.
FRANK GAMBINO,
Appellant
2
No. 01-4394
UNITED STATES OF AMERICA
v.
MARTIN ANGELINA,
No. 01-4436
UNITED STATES OF AMERICA
v.
JOHN CIANCAGLINI,
Appellant
No. 01-4441
UNITED STATES OF AMERICA
v.
ANGELO LUTZ,
Appellant
No. 01-4453
UNITED STATES OF AMERICA
v.
GEORGE BORGESI,
Appellant
3
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. Nos. 99-cr-00363-1, 99-cr-00363-6,
99-cr-00363-2, 99-cr-00363-8, 99-cr-00363-9,
99-cr-00363-10, and 99-cr-00363-7
District Judge: The Honorable Herbert J. Hutton
Argued: June 2, 2003
Before: BARRY, FUENTES, and ROSENN, Circuit Judges
(Opinion Filed: November 12, 2003)
Edwin J. Jacobs, Jr., Esq.
Joseph A. Levin, Esq.
Jacobs & Barbone
1125 Pacific Avenue
Atlantic City, NJ 08401
Attorneys for Appellant
Joseph Merlino
Stephen P. Patrizio, Esq. (Argued)
Dranoff & Patrizio
117 South 17th Street
Architects Building, Suite 1600
Philadelphia, PA 19103
Attorney for Appellant
Steven Mazzone
John J. Fioravanti, Jr., Esq.
Fioravanti & Knight
93 East Court Street
Doylestown, PA 18901
Attorney for Appellant
Frank Gambino
4
Jack J. McMahon, Jr., Esq.
Suite 900
1500 Walnut Street
Philadelphia, PA 19102
Attorney for Appellant
Martin Angelina
F. Emmett Fitzpatrick, Jr., Esq.
(Argued)
F. Emmett Fitzpatrick Law Offices
6th & Chesnut Streets
926 Public Ledger Building
Philadelphia, PA 19106
Attorney for Appellant
John Ciancaglini
Christopher D. Warren, Esq.
(Argued)
1604 Locust Street
Philadelphia, PA 19103
Attorney for Appellant
Angelo Lutz
Peter Goldberger, Esq. (Argued)
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276
Attorney for Appellant
George Borgesi
David E. Fritchey, Esq. (Argued)
Barry Gross, Esq.
Zane D. Memeger, Esq.
Steven D’Aguanno, Esq.
Assistant U.S. Attorney
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
5
OPINION OF THE COURT
BARRY, Circuit Judge:
I. INTRODUCTION
Beginning in June of 1999, a federal grand jury in the
Eastern District of Pennsylvania returned a series of
indictments culminating in January 2001 in the thirty-six
count fourth superceding indictment on which the seven
defendants who had not already pled guilty went to trial in
March of 2001. In broad summary, the defendants were
charged with Racketeer Influenced and Corrupt
Organization (RICO) conspiracy and a RICO substantive
count, with the Philadelphia La Cosa Nostra (“LCN”) family
alleged to be “The Enterprise.” Murder and conspiracy to
murder, violent crime in aid of racketeering, extortion and
conspiracy to extort, the operation of illegal sports
bookmaking businesses, and thefts of goods in interstate
commerce were among the thirty-six racketeering acts and
thirty-six counts charged.
On July 20, 2001, four months to the day on which trial
commenced, all of the seven defendants were convicted of
at least some of the charged offenses, including RICO and
RICO conspiracy. However, all of the charges, be they
racketeering acts or substantive counts, alleging anything
to do with murder or violent crimes in aid of racketeering
and many of the numerous extortion racketeering acts and
counts were found by the jury to be wanting and resulted
in findings of “not proven” or acquittals. The government,
and there is no way to sugar-coat it, lost the heart of its
case.
In December of 2001, the seven defendants were
sentenced to terms of imprisonment ranging from 71
months to 168 months. They now appeal, raising pre-trial,
trial, and sentencing issues that, because of the
permutations and combinations specific to each of the
defendants, total approximately thirty.
6
We will not address each of the issues raised but, rather,
will focus on those issues which we believe particularly
warrant discussion. Suffice it to say, however, that whether
addressed or unaddressed, we have carefully considered
each issue and, aside from one count and a sentencing
enhancement as to one defendant, we will affirm the
judgments of conviction and sentence.
II.
We begin with some brief procedural background. Joseph
Merlino was the sole defendant named on June 30, 1999 in
the initial two count indictment that charged him with drug
offenses. On December 15, 1999, the first superceding
indictment was returned, adding Frank Gambino, Ralph
Abbruzzi, Steven Frangipani, and Anthony Accardo as
defendants, and expanding the charges against Merlino.
The second superceding indictment, returned on March 30,
2000, substantially expanded the charges to approximately
what they were when trial commenced, and added as
defendants Steven Mazzone, George Borgesi, Martin
Angelina, John Ciancaglini, Angelo Lutz, and Stephen
Sharkey. The third superceding indictment, returned on
October 11, 2000, made only minor changes, and the
fourth superceding indictment, returned on January 24,
2001, essentially only deleted defendants Abbruzzi and
Frangipani, who had earlier pled guilty to one count. The
fourth superceding indictment, which hereinafter we will
refer to as “the indictment,” thus named nine defendants.
Defendants Accardo and Sharkey entered pleas of guilty
shortly before trial, also to one count, and trial commenced
on March 20, 2001 against the remaining seven
defendants, Messrs. Merlino, Mazzone, Gambino, Angelina,
Ciancaglini, Lutz and Borgesi.
The 111 page indictment identifies defendants Merlino,
Mazzone, Borgesi, Angelina, Ciancaglini, and Gambino as
“made” members of the Philadelphia LCN family — “The
Enterprise” — and Lutz and the four defendants who pled
guilty as “associates” in the family, a family, it was alleged,
that has been in “substantially continuous operation for a
number of decades.” The structure, hierarchy, and manner
in which the enterprise operated was set forth in the
7
indictment in detail that would be familiar to any viewer of
“The Sopranos” or “The Godfather,” including the priority of
the sons of “made” members, the ritual initiation
ceremonies, and the penalty of death for violating the “Code
of Silence” — “Omerta” — with nicknames of co-
conspirators such as “Horsehead,” “Snitch,” and “Pete the
Crumb” sprinkled throughout. The indictment described
defendant Merlino as having risen through the ranks to be
Acting Boss, defendant Mazzone to be Acting Underboss,
and defendant Borgesi to be Acting Consigliere.
The thrust of the indictment, and there can be no
mistake about it, was violence, be it actual, threatened, or
otherwise intended. Count One, the RICO conspiracy count,
listed, as noted, thirty-six racketeering acts (“RA’s”). The
first five, together with RA8, charged defendants Mazzone,
Borgesi, Angelina, Ciancaglini, and Gambino with one or
more of the following: conspiracy to murder John Stanfa;
attempted murder of John Ciancaglini, Jr.; murder and
conspiracy to murder William Veasey; murder and
conspiracy to murder Joseph Sodano; murder and
conspiracy to murder Anthony Turra; and the attempted
murder of Anthony Milicia. Defendant Merlino was charged
in all of these racketeering acts. Thereafter, the indictment
listed racketeering acts alleging extortion — conspiracy to
extort “street tax” and protection money (RA6); extortion of
Anthony Milicia and Louis Procaccini (RA7); Hobbs Act
extortion and extortion of a bookmaking business under
Pennsylvania law (RA’s 9-24); and extortionate collection of
credit and conspiracy to collect an extortionate collection of
credit (RA28). Bringing up the rear, so to speak, were
allegations of illegal sports bookmaking (RA’s 25-27);
receipt, possession, and sale of a stolen Lamborghini
(RA29); receipt of, respectively, stolen Sony TV sets, electric
ceiling fans, women’s sweatsuits, baby formula, and
bicycles (RA’s 30-34); and, as against Merlino, the
conspiracy to distribute cocaine and use of a
communication facility to further that conspiracy charged
in the initial indictment (RA’s 35-36). Count Two charged a
RICO substantive offense, and the remaining thirty-four
counts of the indictment largely tracked the racketeering
acts described above. We will, of course, parse the counts
as necessary to do so in the discussion which follows.
8
Given what was charged, and the strong emphasis at trial
on the violent offenses (including the promised or feared
violence by which extortion can, of course, be defined), it
was not an overstatement to say, as we said at the outset,
that, for whatever reason, the government lost “the heart of
its case.” Thus, Merlino was convicted only of Counts One
and Two (the RICO conspiracy and RICO substantive
counts, respectively), Count Three (collection of an unlawful
debt), Count Twenty-Three (illegal gambling business);
Counts Thirty, Thirty-Two, and Thirty-Three (receipt of
stolen ceiling fans, baby formula, and bicycles); and Count
Thirty-Four (conspiracy to receive stolen goods). The only
racketeering acts found “proven” as to him were RA6
(conspiracy to extort “street tax” and protection money);
RA25 (illegal sports bookmaking); and RA’s 31-34 (receipt of
the stolen fans, sweat suits, baby formula, and bicycles).
Stated somewhat differently, as to defendant Merlino, the
jury found “not proven” all of the RA’s alleging murder,
conspiracy to murder, attempted murder, and extortion,
and acquitted on all of the concomitant substantive counts
with which he was charged.
Each of the other defendants was also convicted on
Counts One and Two. Defendant Mazzone was found guilty
as well of Count Twenty-Four (illegal sports bookmaking),
and only RA6 (conspiracy to extort “street tax” and
protection money), RA7 (extortion of Anthony Milicia and
Louis Procaccini) and RA26 (illegal sports bookmaking)
were found to be “proven.” Defendant Borgesi did not fare
quite as well, being convicted also of Counts Three and
Four (collection of an unlawful debt); Counts Sixteen,
Twenty, and Twenty-Two (Hobbs Act extortion), although he
was acquitted of the bulk of the extortion counts; and
Counts Twenty-Three, Twenty-Four, and Twenty-Five
(illegal sports bookmaking). The jury also found that RA6
(conspiracy to extort), RA’s 18, 20, 21, 22, and 24
(extortion), and RA’s 25, 26, and 27 (illegal sports
bookmaking) were “proven.”
Angelina was also found guilty of Count Eight (Hobbs
Acts conspiracy), Nine through Thirteen (Hobbs Act
extortion), Twenty-Four (illegal sports bookmaking) and
Twenty-Eight (receipt, possession, and sale of the stolen
9
Lamborghini). The jury found only RA6 (conspiracy to
extort), RA’s 9-15 (extortion), and RA26 (illegal sports
bookmaking) “proven.” In addition to Counts One and Two,
Ciancaglini was found guilty of Counts Eight and Twenty-
Four and RA’s 6, 9, and 26 were found “proven.” While
Gambino was also convicted of Counts One and Two, he
was, aside from those counts, only found guilty of receipt of
the stolen Sony TV’s, sweat suits, baby formula, and
bicycles, and only the RA’s pertaining to those stolen goods
were found “proven.” Finally, in addition to Counts One and
Two, Lutz was convicted of Counts Three and Four
(collection of an unlawful debt); Sixteen, Twenty, and
Twenty-Two (Hobbs Act extortion) and Twenty-Three and
Twenty-Five (illegal sports bookmaking). RA6 (conspiracy to
extort); RA’s 18, 20, 21, 22, and 24 (extortion); and RA’s 25
and 27 (illegal sports bookmaking) were “proven.”
In December of 2001, the District Court imposed
sentence on the seven defendants convicted following trial.
As relevant here (because no defendant challenges any fine
imposed or any term of supervised release), defendants
Merlino and Borgesi were sentenced to terms of
imprisonment of 168 months; defendants Mazzone,
Ciancaglini and Lutz were sentenced to 108 months; and
defendants Gambino and Angelina were sentenced to 71
months. They now appeal. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
III.
We recognize that the jury’s verdict has dramatically
narrowed the potential issues on appeal and, thus, has
simplified our task that, nonetheless, remains difficult. As
we noted at the outset, we have carefully considered the
numerous issues which are presented to us and now
proceed to explain why, with two exceptions, those we do
discuss are unavailing.1
1. In addition to those issues we will discuss, the following issues have
been raised by the various defendants and found by us to lack merit: (1)
Angelina’s claim of insufficient evidence to support the verdict of guilty
on Counts Nine-Thirteen; (2) Borgesi’s claim that the District Court erred
10
A. Disqualification of Morris W. Pinsky, Esq.
For reasons we will discuss, the District Court granted
the government’s motion to disqualify Morris W. Pinsky,
Esq., defendant Borgesi’s “lawyer of many years and first
choice for trial.” We note that at the outset, albeit
somewhat parenthetically, that at all times during the
extensive pretrial proceedings and during trial itself,
Borgesi was represented by two extraordinarily able
attorneys, both of whom he retained. Thus, on April 4,
2000, just days after Borgesi was indicted, Mr. Pinsky
entered his appearance, and a mere two days later, Bruce
Cutler, Esq., also did so. Mr. Cutler remained in the case
in using the Sentencing Guideline for extortion by force; (3) Ciancaglini’s
claims that the evidence was insufficient as to Counts One, Two, Eight,
and Twenty-Four and RA’s 9A, 9B, and 26; RA6 is duplicitous of RA’s 9A
and 9B and should merge with them; the District Court erred in allowing
“other crimes” evidence of his efforts to take over Hamilton’s video poker
machine business; erred when it declined to give two jury instructions;
erred in grouping his convictions; erred in enhancing his sentence based
on the amount extorted, obstructing justice, playing an aggravating role
and making threats of death, bodily injury, and kidnapping; and erred in
declining to credit his “minimal” role; (4) Gambino’s claim that the
District Court erred in enhancing his sentence by three levels for having
a management or supervisory role in the offense, and by four levels for
being in the business of receiving and selling stolen property; (5) Lutz’s
claims that the District Court erred when it refused to instruct the jury
that a defendant could not be convicted of extortion absent evidence
calculated to exploit the LCN’s violent reputation, and that there was
insufficient evidence in that regard, and when it enhanced his sentence
for making threats of death, bodily injury, or kidnapping; (6) Mazzone’s
claims that the evidence was insufficient to support the verdict of guilty
on Counts One, Two, and Twenty-Four, and RA’s 6, 7, and 26, and that
the District Court erred at sentencing in separating the three counts of
conviction into “three groups of closely related counts,” in calculating the
loss amount, and in enhancing his sentence for aggravating role; (7)
Merlino’s claims that the District Court erred in excluding, under
Fed.R.Evid. 608(b), the testimony of witnesses who would have
impeached government witness Previte, in calculating the base offense
level for bookmaking and collection of an unlawful debt, in adopting the
findings of Presentence Investigation Report without resolving his
objections, and in enhancing his sentence for aggravating role and
amount of loss.
11
from the beginning until the end, joined by Louis M. Natale,
Esq., after Mr. Pinsky was disqualified. Thus, as we address
the issue of Mr. Pinsky’s disqualification, we are not
confronted with a situation in which Borgesi was left bereft
of counsel, or even bereft of counsel of his choice, because
Messrs. Cutler and Natale were surely chosen by him.
We review the District Court’s order granting the
government’s motion to disqualify Mr. Pinsky in two stages.
“First, we exercise plenary review to determine whether the
district court’s disqualification was arbitrary — ‘the product
of a failure to balance proper considerations of judicial
administration against the right to counsel.’ If we find that
the district court’s decision was not arbitrary, we then
determine whether the court abused its discretion in
disqualifying the attorney[.]” United States v. Stewart, 185
F.3d 112, 120 (3d Cir. 1999) (quoting United States v. Voigt,
89 F.3d 1050, 1074 (3d Cir. 1996)).
Because the District Court “engaged in the balancing
required by the Sixth Amendment and developed the record
necessary to do so,” its decision was not arbitrary.
Voigt, 89
F.3d at 1074. The disqualification issue was fully briefed;
documentary evidence, including at least one affidavit, was
submitted and the parties did not seek to submit more,
content to rely on their written submissions that were
supported by exhibits; the District Court heard oral
argument; and the Court issued a written Memorandum
and Order. Indeed, Borgesi does not waste much time
arguing that the disqualification itself and the procedures
that brought it about were “arbitrary.”
The question for us, then, is whether the District Court’s
ultimate conclusion to disqualify Mr. Pinsky constituted an
abuse of discretion. A criminal defendant’s Sixth
Amendment right to counsel of one’s choice is not absolute;
“where ‘considerations of judicial administration’
supervene, the presumption in favor of counsel of choice is
rebutted and the right must give way.”
Id. (quoting Fuller v.
Diesslin,
868 F.2d 604, 607 & n.3 (3d Cir. 1989)). Here, of
course, given the participation of Messrs. Cutler and
Natale, Borgesi was never without “counsel of [his] choice,”
but only without counsel of what he describes as his “first
choice.” That, of course, was because Mr. Pinsky was
12
disqualified for two reasons: (1) his communication with
potential government witness Gaetano Scafidi on Borgesi’s
behalf at the Bucks County Correctional Facility on March
14, 2000, and (2) his brief representation of mob boss-
turned-government witness Ralph Natale during a police
interview in the early 1970s.
Borgesi argues that the first ground did not require
disqualification, and that the “second was based upon a
clearly erroneous finding of fact and imposed
disqualification when that was not the least intrusive
measure available to deal with the attenuated conflict that
the lower court identified.” The government responds that
the District Court’s decision was justified for the reasons
noted above, i.e., Mr. Pinsky’s improper pre-indictment
effort to induce and persuade a represented witness not to
testify against Borgesi or otherwise cooperate with the
government, exposing Pinsky to possible criminal and/or
disciplinary sanctions and making him a potential witness
regarding a material matter, and his prior representation of
government witness Natale concerned a murder and other
matters that were destined to become subjects of cross-
examination at trial. We need only address the first reason
because we find that reason, in and of itself, to be
sufficient.
In the Spring of 2000, facing release from jail and
believing that those in the LCN family loyal to defendant
Merlino intended to kill him should he return to
Philadelphia, Gaetano Scafidi contacted the government
and agreed to become a cooperating witness. He was then
transferred from federal prison to the Bucks County jail in
advance of his grand jury appearance.
When Borgesi learned of Scafidi’s transfer, he tried
unsuccessfully to find out if Scafidi was cooperating. On
March 14, 2000, at Borgesi’s behest, Mr. Pinsky visited
Scafidi in prison. Mr. Pinsky “smuggled,” the government
says, a five-page letter from Borgesi into the prison for
Scafidi to read; aside from one letter a week earlier, this
was the first contact between Borgesi, who was loyal to
Merlino, and Scafidi, who had defected from Merlino’s
faction, in over six years. The letter attempted to disabuse
Scafidi of any notion that there was a plan to kill him and
13
assured him that it would be safe for him to return to
Philadelphia upon his release. Mr. Pinsky reinforced this
message, telling Scafidi that Borgesi liked him and felt
badly for him. Mr. Pinsky also told Scafidi that Borgesi’s
uncle, Joseph Ligambi, who was then the acting boss of the
Philadelphia LCN, “had scruples and said hello.” Finally,
Mr. Pinsky offered Scafidi $100 from Borgesi for his
commissary account, which Scafidi declined. On March 17,
2000, Borgesi sent a check for $150 to Scafidi’s
commissary account, a check which Scafidi did not cash.
As the government puts it, “Scafidi saw Pinsky’s visit and
the communications from Borgesi as a treacherous mixture
of covert threats, deceitful efforts to lull him into a false
sense of security . . . and clumsy attempts to buy him off.”
The District Court found that “Pinsky’s conduct suggests
that Pinsky tried to influence either Scafidi’s testimony
before the grand jury or Scafidi’s decision to cooperate with
the federal authorities.” The District Court viewed this as
raising the potential for a conflict of interest, which, where
serious, “is a consideration of judicial administration that
can outweigh a defendant’s right to counsel of choice.”
Voigt, 89 F.3d at 1050.
Mr. Pinsky’s attempt to influence Scafidi, if that is what
it was, raised the potential of a conflict for two reasons.
First, there was a potential for conflict between Mr. Pinsky’s
personal interest in avoiding an accusation of professional
or criminal misconduct and his duty to vigorously defend
Borgesi. An attorney who faces criminal or disciplinary
charges for his or her actions in a case will not be able to
pursue the client’s interests free from concern for his or her
own. As even Borgesi was forced to concede, the District
Court’s finding that Mr. Pinsky’s conduct suggested an
attempt to influence Scafidi was “a suggestion of potential
criminal liability.” See also United States v. Grieg,
967 F.2d
1018, 1022-1023 (5th Cir. 1992)(holding that an attorney
who attempted to persuade his client’s co-conspirator not
to cooperate with the government without informing the co-
conspirator’s counsel had an actual conflict of interest
arising from his own unethical and possibly criminal
behavior and should have been disqualified). Mr. Pinsky
may also have violated Rule 3.4 of the Pennsylvania Rules
14
of Professional Conduct, which provides that a lawyer shall
not “request a person other than a client to refrain from
voluntarily giving relevant information to another party”
except under circumstances not present here.2
The fact that the meeting at the prison could have led to
Mr. Pinsky being called as a witness was a second source
of potential conflict, as it is often impermissible for an
attorney to be both an advocate and a witness. See Pa.
R.P.C. 3.7 (a). The government introduced evidence at trial
of Mr. Pinsky’s visit to show Borgesi’s consciousness of
guilt. Had Borgesi wished to challenge that evidence, he
could have done so only by calling Mr. Pinsky as a witness,
and if Pinsky had remained as his attorney, an actual
conflict of interest would have existed. We note, as well,
that disqualification may also be appropriate where it is
based solely on a lawyer’s personal knowledge of events
likely to be presented at trial, even if the lawyer is unlikely
to be called as a witness. See United States v. Locascio, 6
F.3d 924, 933 (2d Cir. 1993). The fact that Mr. Pinsky
informed Scafidi that Borgesi’s uncle, Joseph Ligambi, had
become the boss, that the LCN did not intend to kill Scafidi,
and that it was safe for Scafidi to return to Philadelphia,
put Pinsky in a compromised position given that Borgesi
employed a “mob denial” defense at trial.3
2. Pennsylvania Rule of Professional Conduct 4.2 prohibits lawyers from
communicating with a party they know to be represented without the
consent of the party’s lawyer. Borgesi argues, and the government
appears to concede, that Mr. Pinsky did not violate Rule 4.2 in
communicating with Scafidi because, while Scafidi was represented by
counsel, he was not a party to any proceeding in which Borgesi was
involved. Borgesi also argues that Pinsky did not violate Rule 4.3, which
states that “[d]uring the course of a lawyer’s representation of a client,
a lawyer shall not give advice to a person who is not represented by a
lawyer, other than the advice to secure counsel, if the interests of such
person are or have a reasonable possibility of being in conflict with the
interests of the lawyer’s client,” because Pinsky did not provide Scafidi
with legal advice.
3. Borgesi argues that any potential conflict arising out of Pinsky’s visit
with Scafidi was waivable, and that the District Court failed to give
adequate weight to Borgesi’s desire to waive that conflict. Borgesi also
suggests that the District Court may have mistakenly believed that the
15
We conclude that Mr. Pinsky’s visit to Scafidi was reason
enough for his disqualification. We, therefore, need not
discuss the government’s alternative reason, namely that
Mr. Pinsky should have been disqualified because he
represented government witness Ralph Natale when Natale
was interviewed regarding the December 25, 1973 murder
of Joseph McGreal. We note, however, that McGreal’s
murder was a subject of testimony at trial, and that Mr.
Pinsky’s representation of Natale, had Pinsky remained in
this case, would surely have not gone unnoticed.
B.
Nondisclosure of Taped Telephone Conversations
All of the defendants argue that the District Court erred
in failing to order the government to turn over audio tapes
of the telephone conversations of certain cooperating
government witnesses maintained by the federal Bureau of
Prisons (“BOP”), and that turnover should have occurred
either pre-trial or following the testimony of each of the
particular witnesses at trial.
Cooperating government witnesses Peter Caprio, Ralph
Natale, and Gaetano Scafidi were incarcerated in the
prisoner component of the Witness Security Unit of the
conflicts at issue could not be waived. First, while Borgesi correctly notes
that the Court did not reference Borgesi’s Sixth Amendment right in the
context of its discussion of waiver, a fair reading of the decision as a
whole reveals that the Court was aware of that right but found that it
was outweighed by the Court’s “institutional interest in protecting the
truth-seeking function of the proceedings.”
Second, it is not surprising that the District Court used the word
“unwaivable” at one point in its opinion given that that word was used
in the caption of the government’s motion. That aside, it is clear that the
Court believed not that there could not be a waiver, but that a waiver
would not cure the problems caused by Pinsky’s potential conflict or
conflicts; indeed, earlier in the opinion, the Court stated that it “may”
disqualify counsel upon a showing of a serious potential for conflict. A
court need not accept a client’s waiver of the conflict, not only with
respect to an actual conflict of interest that is obvious before trial, but
also in the more common situation of a potential conflict. Wheat v.
United States, 486 U.S. 153, 163 (1988).
16
BOP, with each held in a different Witness Security Unit.
On January 12, 2000, defendant Merlino asked the
government to preserve, as possible Jencks Act material, all
telephone conversations of Natale that had been tape-
recorded by the BOP. The government, in a move which
started the proverbial ball rolling, and which most
assuredly it later came to regret, filed a motion to effectuate
Merlino’s request, a motion the District Court granted on
February 15, 2000. The government then served the BOP
with two subpoenas directing it to preserve and make
copies of all existing recorded conversations of Natale. On
May 23, 2000, defendant Gambino asked the government to
preserve all tapes of telephone calls made by Caprio,
Scafidi, and two others whom Gambino mistakenly believed
were in BOP custody. In response, the government served
the BOP with a series of subpoenas requesting that the
BOP copy and preserve all existing tape-recorded
conversations of Scafidi and Caprio.
Subsequently, the BOP forwarded to the government
roughly 300 tapes of calls which Natale made between
October 11 and December 16, 1999, calls that the
government then reviewed and analyzed. Three calls
consisted of conversations with Daniel D’Ambrosia, an
associate of Natale’s whom Natale was encouraging to
cooperate with the government; the remainder were to
members of Natale’s family. The government concluded that
none of the tapes contained material that it was required to
turn over under Brady v. Maryland, 373 U.S. 83 (1963).
Nevertheless, as it explained in its brief to us, “because
some of the 300 non-D’Ambrosia calls reviewed and
analyzed by the government contained disparaging remarks
by Natale about the defendants and their lawyers, Natale’s
expressed hope for leniency at sentencing, and remarks
about Natale’s relationship with D’Ambrosia . . . the
government decided to provide the defense with the
D’Ambrosia conversations and 46 excerpts from the 300
conversations that contained such remarks.”
On December 14, 2000, a member of the prosecution
team received a box that purportedly contained BOP tape
recordings of Scafidi’s telephone calls. The box was
addressed to Michael E. Kunz, Clerk of Court, United
17
States District Court for the Eastern District of
Pennsylvania, but was delivered instead to the United
States Attorney’s Office and opened by mail room
personnel. The prosecution team returned the box to the
BOP without reviewing, copying, or inventorying the
contents, and advised the BOP to preserve the tapes
consistent with the February 15, 2000 order and not send
them to Philadelphia.
On February 12, 2001, the government filed a motion to
vacate the February 15, 2000 order requiring the
preservation of the tapes. BOP records established that
between December 17, 1999 and January 9, 2001, Natale
made 1,379 calls, Scafidi made 442 calls, and Caprio made
464 calls. These calls had been preserved but were never
produced to, or listened to by, any member of the
prosecution team.
On March 13, 2001, the District Court held a hearing
that addressed, in part, the question of whether the
government had any obligation under either Brady or the
Jencks Act to retrieve, review, or disclose the 2,285 Caprio,
Natale and Scafidi tapes that were not then in the physical
possession of the prosecution. The Court gave the parties
until March 16, 2001 to make any supplemental
submissions. On March 15, 2001, the defense responded to
the government’s motion and moved for issuance of a Rule
17(c) subpoena for the tapes. On March 19, 2001, the
District Court issued an opinion ruling that the defense
had failed to satisfy its burden of demonstrating that the
BOP tapes contained Brady material and declining to
authorize a Rule 17(c) subpoena on the grounds that (1) it
was premature because impeachment material lacks
evidentiary value prior to trial, and (2) it was no more than
a “fishing expedition.”
The District Court found that the government requested
at least the initial tapes at issue solely in response to
defense requests and not for any criminal investigation or
prosecution purpose. This does not mean, of course, that
had the tapes contained Brady material, the defendants
would not have had a right to them; indeed, Brady places
an affirmative obligation on prosecutors “to learn of any
favorable evidence known to the others acting on the
18
government’s behalf in the case, including the police.” Kyles
v. Whitley, 514 U.S. 419, 437 (1995). That said, Kyles
cannot “be read as imposing a duty on the prosecutor’s
office to learn of information possessed by other
government agencies that have no involvement in the
investigation or prosecution at issue.” United States v.
Morris,
80 F.3d 1151, 1169 (7th Cir. 1996). See also United
States v. Locascio,
6 F.3d 924, 949-950 (2nd Cir.
1993)(refusing to infer knowledge on the part of prosecutors
simply because other government agents not on the
prosecution team knew something).
As we explained in United States v. Joseph,
996 F.2d 36,
39 (3d Cir. 1993), “a court’s task becomes more
complicated when exculpatory information is available to
the prosecution but is not within . . . its actual knowledge
in the context of the particular case[.]” We went on to hold
that while a prosecutor is obligated to produce evidence
that he or she constructively possesses, “constructive
possession” means “that although a prosecutor has no
actual knowledge, he should nevertheless have known that
the material at issue was in existence.”
Id., 996 F.2d at 39.
This is an objective test; there is no bad faith inquiry.
We found it unreasonable to expect the prosecutor to
search all of the unrelated files in his or her office to look
for exculpatory material. See
id. at 40. “While the
appellants discount the burden of that search by arguing
that the [unrelated file at issue was] prosecuted
simultaneously by the same prosecutor [who prosecuted
them], the true measure of a prosecutor’s Brady obligation
is whether he knew or should have known of the
exculpatory material . . . [I]t is one thing to require honest
searches, reasonable in scope, of unrelated files for specific
identifiable information, but quite another to send
prosecutors on open-ended fishing expeditions.”
Id. at 41.
Here, especially in light of the government’s
representation, accepted by the District Court, that none of
the tapes it reviewed contained Brady material, the defense
requests would have sent the prosecution on an open-
ended fishing expedition, nothing more and nothing less.
The defense failed to meet its burden of making a “plausible
showing” that the government was obliged to disclose the
19
remaining tapes under Brady. Riley v. Taylor, 277 F.3d
261, 301 (3d Cir. 2001)(en banc). The fact that some
percentage of the tapes that were turned over contained
information favorable to the defense is not enough, in light
of Brady’s materiality requirement. See United States v.
Perdomo,
929 F.2d 967, 971 (3d Cir. 1991)(Brady only
requires that the prosecution turn over evidence where
there is a reasonable probability that suppressing the
evidence would affect the outcome at trial).
The government was also not required to turn over the
tapes under the Jencks Act. The Act requires the
production of a witness statement “in the possession of the
United States which relates to the subject matter as to
which the witness has testified.” 18 U.S.C. § 3500 (b). The
government must disclose prior recorded statements of its
witnesses that are related to the subject matter of their
testimony. Id.; United States v. Hill,
976 F.2d 132, 139 (3d
Cir.1992). Such disclosures must be made after each
witness testifies on direct examination. United States v.
Weaver,
267 F.3d 231, 245 (3d Cir. 2001).
Even assuming, with no great confidence, that the
recorded statements of Messrs. Caprio, Natale and Scafidi
were “related” in any meaningful way to the subject matter
of their testimony, we have held that, “[i]n speaking of
statements ‘in the possession of the United States,’ we
understand the statute to require production only of
statements possessed by the prosecutorial arm of the
federal government.” United States v. Dansker,
537 F.2d 40,
61 (3d Cir. 1976). In this case, the BOP was not part of the
prosecutorial arm of the federal government as it was not at
all involved in either the investigation or the prosecution of
the defendants.
As for the District Court’s rejection of the 17(c) subpoena,
defendants acknowledge that impeachment material is
generally not subject to pre-trial disclosure under the Rule.
They argue, however, that a subpoena should have been
granted at trial with regard to each witness after that
witness testified. We need not pause to determine whether,
had the issue been pressed at the appropriate time at trial,
defendants are right or wrong. We simply note that the
20
burden was on the defendants and they did not raise the
issue at any point during trial.
C. Defendant Angelina’s Sufficiency of the Evidence
Challenge to Count Eight
Defendant Angelina challenges, on the ground of
insufficient evidence, his conviction on Count Eight, which
charges that from August 1997 through the Spring of 1999,
he conspired with defendants Ciancaglini, Borgesi, and
Mazzone to extort Michael Casolaro’s sports bookmaking
business. Casolaro testified that he was approached by
Ciancaglini regarding entering into a “partnership” as to
that bookmaking business, and that he wanted no part of
that partnership. A meeting was held which was attended
by Casolaro, Ciancaglini, Mazzone, and an individual
known to Casolaro as “Louie Sheep.” It was determined that
Casolaro would “take [action from] John Ciancaglini’s guys,
and Louie Sheep was handling Marty’s guys and Georgie’s
guys and Stevie’s guys.” “Marty” was defendant Angelina.
Although Angelina was not at the meeting at which the
partnership was forced on Casolaro, a reasonable juror
could conclude that Casolaro’s reference to “Marty’s guys”
was a reference to individuals who had been placing bets
with Angelina. On cross-examination, Casolaro explained
that he knew that Angelina had “guys calling in that were
betting,” “[b]ecause when we did the counts here’s Marty’s
guys and here’s this guy’s guys and that guy’s guys.” This
supports the conclusion that when Casolaro testified that
Louie Sheep would be handling “Marty’s guys,” both the
prosecutor and Casolaro understood this to mean those
individuals who regularly placed bets with Angelina. This
conclusion surely cuts against the possibility that Angelina
was a mere bettor.
Also supporting the conclusion that Angelina was a part
of the conspiracy to extort a partnership share in Casolaro’s
business is the following exchange between the prosecutor
and Casolaro:
Q Now why did you continue in a partnership that
you didn’t want to be in in the first place?
A For the first place, I didn’t want to get into it, but
when I was talking to John [Ciancaglini], he kind of
21
said I had to. And I was saying, I don’t want to. I
don’t want to be in this situation. Because I know
— to me, I figured it was going to be a no win
situation, and he said, you got to, or you got to
move, and so I wasn’t prepared to move at the time,
so I basically just went with the agreement.
Q And now you said that something happened toward
the end of March, around — I guess around — that
would be about March of 1998, where you — if I
recall your testimony correctly, you said that
George Borgesi and Marty Angelina both sort of
dropped out of the thing?
A Yes.
A reasonable juror could infer that the “thing” that Angelina
and Borgesi dropped out of was the partnership discussed
in the previous question and answer. Before Angelina
dropped out, however, there had been a bad football season
and Casolaro, as a result, was “hemorrhaging money.”
Nonetheless, he had to come up with cash to pay Angelina
the $1800.00 he owed him. He turned over what cash he
had, $1100.00, and told Borgesi that he needed the
approximately $700.00 Borgesi’s book owed him to pay
Angelina. Borgesi did not want to pay, but it was finally
agreed that the $700.00 would be paid directly to Angelina
to satisfy the remainder of Casolaro’s debt.
The following exchange further supports the conclusion
that Angelina was a partner in the conspiracy:
Q And who came to you and asked you for money at
Christmas of 1997?
A Marty Angelina.
Q The same Marty Angelina that was supposed to be
your partner in this bookmaking operation?
A Yeah.
Angelina, whose career in the LCN stretched back to the
early 1980s, clearly knew of the extortionate nature of the
LCN’s “partnership” with Casolaro. Angelina had a
relationship with Casolaro, independent of the bookmaking
operation, that centered around annual extortions, termed
22
the “Christmas shakes.”4 With regard to the Christmas
shakes, which were naked demands for cash, no more and
no less, and qualitatively different from the bookmaking
extortion, Casolaro testified that Angelina did not have to
threaten him explicitly with violence because “it was
understood,” because of the “intimidation factor,” and
because he feared someone taking a “ ‘shot’ into his book.”
It is certainly reasonable to infer from this that Angelina
was aware that Casolaro had no choice but to do business
with the LCN.5 Angelina’s challenge to his conviction on
Count Eight is rejected.
D. Defendant Lutz’s Sufficiency of the Evidence
Challenge to Count Sixteen (and Racketeering Act
18)
While defendant Lutz challenges his convictions on all of
the extortion counts (and the “provens” on the concomitant
RA’s), we are persuaded that he is correct, but only as to
Count Sixteen (and RA18), which charged him with
extorting a $1000 contribution for the “George Borgesi
Legal Defense Fund” from bookmaker William James Patton
in September 1999. It is, we suggest, a somewhat pyrrhic
victory, for it appears, at least to us, that under U.S.S.G.
§ 3D1.4, Lutz’s offense level and, hence, his guideline range
would not change.
Although we have little or no confidence in Lutz’s claim
that he had a “voluntary business relationship” with
4. The jury found that Angelina was guilty of Counts Nine through
Thirteen, which charged him with extorting $5,000 from Casolaro in
December of 1995, 1996, 1997, and 1999, and with extorting $10,000 in
December of 1998.
5. The partnership’s extortionate character is further evidenced by terms
which so obviously favored the LCN. Casolaro described the financial
arrangement as follows: “It was — all the work was gonna be put in
together, and I was financing it. I was like the backer and it would
become a 50 percent book. So on the winnings, I would split it 50
percent, and give Louie Sheep, who was handling that end, 50 percent
of the money. That was on the winning, and if there was losses, I would
pay the losses, I would pay the losses 100 percent.” Casolaro testified
that he knew from the very beginning of the forced partnership that it
was “just a matter of how much money I was going to lose[.]”
23
Patton, we, nonetheless, agree with him that there was
insufficient evidence of his involvement in the September
1999 extortion of $1000 from Patton, whether his supposed
extortion be by threatening Patton with physical violence,
economic harm, or knowingly exploiting a fear that he knew
Patton harbored. Lutz was clearly involved in coercing
Patton to “lay off ” bets from his bookmaking operation to
Borgesi’s operation; Lutz clearly extorted “Christmas
shakes” from Patton in various years; and Lutz may well
have facilitated the extortion of funds for the Borgesi
Defense Fund in September of 1999 from Mark Tashie,
Patton’s bookmaking partner, by pressuring Steven
Sharkey, another partner who pled guilty before trial, to
keep after Tashie for a contribution from Tashie and then
collecting that contribution. But there is little or no
evidence that Lutz extorted the $1000 from Patton, and
Patton himself testified that he did not give money to the
Defense Fund in September 1999, although he believed
Sharkey had done so. It is not without significance, we
note, that the government has pointed to precious little, if
any, evidence supporting Lutz’s conviction on Count
Sixteen.
E. Defendant Lutz’s Challenge to the Attribution to
Him of Certain Victim Losses
Defendant Lutz argues that he should not have received
a three-level enhancement to his offense level based on
losses which were sustained prior to 1996 when the
extortion of bookmakers Patton and Tashie began, an
enhancement ordered solely as a result of the testimony of
cooperating witness Gaetano Scafidi. We agree.
Scafidi was on the stand for seven days, four of them on
direct examination. His extensive and often graphic
testimony concentrated on and detailed his involvement
and the involvement of the defendants and others in
murders and other acts of violence. “We kill each other,” he
observed at one point, “and it was just part of our life.”
Defendant Lutz was rarely mentioned by Scafidi in the
course of his lengthy testimony, and when he was
mentioned, it was almost in passing. Thus, aside from a
couple of references to Lutz’s participation in the
24
“Christmas shakes” of 1992, Lutz’s name came up almost
exclusively in connection with an insurance scam,
irrelevant here, and the fact that he was a close associate
of defendant Borgesi and frequented the clubhouse used by
the Merlino faction of the LCN, a “guilt by association” or
“guilt by mere presence” argument that, without more,
would not support the enhancement.6
The “more” was Lutz’s supposed involvement in the 1992
Christmas shakes. At sentencing, the government argued
as follows:
Your Honor, Gaetano Scafidi testified that . . . there
was a Christmas party [in 1992] at which
approximately 75 to 100 bookmakers and other
criminals were extorted . . . and they came to that
party and gave Joseph Merlino varying amounts of
money; $2,000, $5,000. It’s my understanding that Mr.
Scafidi testified that Mr. Lutz was at that party and
participated in those extortions, Your Honor.
* * *
Once again, Gaetano Scafidi’s testimony was that
Angelo Lutz was at the Christmas party in 1992. In
addition, he testified that his knowledge of this was
based on statements by George Borgesi with whom the
defendant has always been closely associated going
back well in the 1980s. He was aware of that close
association. And based on those statements, as well as
his overall knowledge of what happened in September
of 1992, as well as what happened in the Christmas
party in December of 1992, as well as the defendant’s
actions thereafter during the period of time before . . .
Scafidi removed himself from the Merlino/Natale
faction and joined the Stanfa faction, that based on
that knowledge as a whole, he was aware that Angelo
Lutz was involved in the systematic extortion of
bookmakers and other criminals.
6. Video footage showed Borgesi and Lutz going to and from the
clubhouse and hanging around on the corner. Scafidi testified: “[Y]ou
don’t think Angelo Lutz kept coming around that corner because he was
bringing cakes and cookies every day, do you, heh? He was hanging
around us because he was involved with gambling and shakedowns.”
25
The District Court found as follows: “I think I support that
position that supports the jury verdict and also the posture
in the narrative in the presentence investigation.” Lutz
challenges the District Court’s finding, arguing that the
government misrepresented Scafidi’s testimony, and that
the District Court relied on the government’s
misrepresentation in concluding that the enhancement was
appropriate.
The government concedes that Lutz did not attend the
meeting at the Japanese restaurant on Delaware Avenue in
September 1992 at which the extortion conspiracy was
discussed and implemented. The government also concedes
that it misspoke when it advised the District Court at
sentencing and this Court in its brief that Borgesi told
Scafidi that Lutz, among others, participated in the 1992
Christmas shakes; indeed, the government may also have
given the misimpression that Scafidi saw Lutz at a 1992
Christmas party where the shakedowns were paid. But
there was no evidence of any such thing. The only
Christmas party of which Scafidi spoke occurred in 1984,
when Nicky Scarfo held a party at a restaurant and 500
people came, people involved in illegal activities of all types,
and each bringing an envelope to Scarfo. Merlino continued
the tradition of Christmas shakes when he came out of
prison in 1992, and that year, according to Scafidi,
Christmas shakes were extracted from 75-100 people —
“anyone who was turning in the work to us.” Scafidi did not
testify that there was a Christmas party; rather, he testified
that “We told them a month before Christmas they had to
send a package in, depending on the size of the work.”
“ ‘[J]ust send [the money in],’ and that’s . . . basically how
it was done.” In any event, even if there had been a
Christmas party in 1992, Scafidi never testified that Lutz
was there.
And so what is left vis-a-vis 1992 and Lutz is Scafidi’s
testimony on direct examination that Lutz participated in
these 75-100 shakedowns, and perhaps he did — as Scafidi
put it, Lutz “wasn’t no saint.” Cross-examination, however,
rendered this testimony unreliable in the extreme. On
cross, Scafidi was forced to concede that he never saw Lutz
extort anyone in 1992 and had no personal knowledge that
26
Lutz had done so; that he never mentioned Lutz’s name
when he told the FBI, in 100 hours of debriefing, about the
extortions which took place in the Fall and at Christmas of
1992; and that he never mentioned Lutz’s name in his
grand jury testimony about the 1992 Christmas shakes.
His statements at trial regarding Lutz and the 1992
shakedowns were, he admitted, inconsistent with what he
had told the FBI and the grand jury, and were
uncorroborated. In conclusion, Scafidi was only able to say,
“I don’t know . . . .”7
Because there was no reliable evidence that Lutz was
involved in the conspiracy from its inception in 1992, we
will remand so that Lutz can be resentenced without the
three-level enhancement.
F. Defendant Borgesi’s Challenge to the District
Court’s Alleged Improper Reliance on the Jury’s
Verdict for Sentencing Purposes
Defendant Borgesi argues that the District Court erred
because it supposedly considered itself bound to accept as
true all testimony of any witness who had been believed in
any respect by the jury at trial. Borgesi acknowledges that
the verdict itself and the facts necessarily implied by that
verdict are binding on a court for sentencing purposes.
United States v. Boggi, 74 F.3d 470, 478-479 (3d Cir. 1996).
That said, a court is not bound by testimony simply
because it came from a witness the jury believed in some —
or, indeed, more than some — respects. United States v.
Haut,
107 F.3d 213, 221 (3d Cir. 1997). Borgesi argues that
the District Court refused to make independent findings,
based on a preponderance of the reliable evidence, as to (1)
when the conspiracy began, (2) how much money was
extorted, and (3) whether Borgesi intended to obstruct
justice by contacting Scafidi.
At sentencing, during the discussion of the amount of
loss attributable to Borgesi, counsel argued that the
7. The government, on redirect, concentrated on the violent crimes that
were the heart of its case and made no real effort to rehabilitate Scafidi
with reference to Lutz’s involvement or lack thereof in the 1992
shakedowns.
27
amount proposed by the Probation Department was not
supported by the evidence at trial, in part because “we’re
talking about believing Mr. Scafidi[.]” The following
exchange ensued:
THE COURT: . . . I don’t have any role in determining the
credibility of the witnesses who testify at
trial. If the jury determines them to be
credible, they so find. And in this case, they
so found Mr. Scafidi — they had to find
some of his testimony credible, otherwise
Mr. Borgesi would not have been convicted.
MR. NATALI: I disagree with that, Your Honor. I’m not
sure that they — they had to find —
THE COURT: Do you think I have a role in determining
the credibility of witnesses at the time of
sent —
MR. NATALI: Oh, no. No, no, —
THE COURT: Oh, okay.
MR. NATALI: — just on the Scafidi part —
THE COURT: I have to take what the jury gives me, don’t
I?
MR. NATALI: I don’t think they found anything — I don’t
think they found Mr. —
THE COURT: Well I don’t know what they — they found,
I wasn’t in the room with the jury. But I’m
just saying that’s their function, and I can’t
— I can’t, at the time of sentencing, look
back at testimony and say this person
wasn’t credible, or that person wasn’t
credible. That — that’s not my function here
today.
All I’m here today to determine whether or
not the references in the presentence
investigation report to — to evidence
produced at trial sustains the calculations
in this report. And getting back to what [the
prosecutor] said, do you disagree that —
28
that — with anything that [the prosecutor]
has recited as to what occurred, what was
testified to —
MR. NATALI: I agree —
THE COURT: — at trial?
MR. NATALI: — the witness said those things.
THE COURT: Okay, that’s all —
MR. NATALI: The —
THE COURT: —that’s all I can do, sir[.]
The District Court’s comments during the above
exchange could be interpreted to mean that it believed it
was bound to accept all of Scafidi’s testimony for purposes
of sentencing because the jury had to have believed some
or all of that testimony. The Court’s comments at other
points during the sentencing hearings of defendants
Borgesi and Merlino suggest otherwise, however. At
Merlino’s sentencing hearing, which was referenced by the
parties and by the District Court at Borgesi’s hearing, the
Court made clear that it was aware that “a jury can believe
some witness’s testimony as to some aspects, and
disbelieve others, or not believe any, or believe all.” At
Borgesi’s sentencing hearing, the Court found that the two-
point adjustment for obstruction of justice was appropriate
based upon a “preponderance of the evidence,” noting that
Scafidi’s testimony had been subjected to vigorous cross-
examination. The Court also concluded that “the finding by
the probation department [regarding the date the
conspiracy began] is supported by evidence, and I therefore
approve and adopt same.” Finally, the Court “sustain[ed]
the presentence investigation report calculation” of the loss
amount. In light of this evidence that the District Court
understood its role at sentencing, we will not presume that
it based its decision upon the one confusing exchange
regarding Scafidi’s credibility.
G. Defendant Borgesi’s Challenge to the Enhancement
of his Sentence for Commission of Crimes While on
Probation
Defendant Borgesi argues that the District Court erred
when it added two points to his criminal history score after
29
finding that he committed the extortion conspiracy charged
in RA6 while serving a three-year term of probation. More
specifically, he argues that the Court erred when it found
that the offense began prior to September 6, 1992, the date
on which his probation ended. Borgesi argues that this was
clear error because the extortion conspiracy was not
formalized until a meeting at a Japanese restaurant on
Delaware Avenue, which happened in September of 1992.
In fact, the indictment charges that the RA6, the
overarching extortion conspiracy, began in April of 1992. At
Borgesi’s sentencing hearing, the District Court found as
follows: “According to the notes of testimony in April during
the trial, when Mr. Merlino came out of jail in April of 1992,
Scafidi, Borgesi and Angelina were performing shakedowns
at that point. They turned the proceeds in to Mr. Merlino
and Michael Ciancaglini. Merlino said he was getting a
bankroll together, which the crew could use to finance their
criminal operations. Mr. Merlino and Mr. Ciancaglini —
Michael Ciancaglini became made members by John Stanfa
in the late summer of 1992.”
When confronted with this testimony at the sentencing
hearing, counsel responded that it was not specific as it did
not specify the victims of the extortion or the amounts
extorted. This lack of specificity argument is unpersuasive.
The District Court’s approval and adoption of the Probation
Department’s finding that Borgesi was on probation when
he committed some of the crimes of which he was convicted
in this case was not clearly erroneous.8
H. Defendants Borgesi and Merlino’s Challenge to the
District Court’s Failure to Give Reasons for their
Sentences
Defendants Borgesi and Merlino argue that their cases
should be remanded for resentencing — or, we suggest, at
8. The government notes that to the extent Borgesi argues that the
shakedowns between April and August of 1992 were not part of the
charged conspiracy, this argument should be reviewed for plain error.
Whatever the standard of review, the argument fails. Scafidi’s testimony
was clear that the extortions were not independent conduct but were
conducted in the context of the Philadelphia LCN and of the Merlino
faction’s plot to take control.
30
least a statement of reasons for the sentences imposed —
because the District Court failed to state in open court its
reasons for sentencing Borgesi in the middle of the
applicable guideline range and Merlino at the top, a
statement of reasons required by 18 U.S.C. § 3553 (c)(1).
See 18 U.S.C. § 3553 (c)(1)(requiring a sentencing judge to
state in open court the reasons for its imposition of a
sentence within the guideline range whenever that range
exceeds 24 months). As this argument was not raised
below, it is not cognizable on review unless it constitutes
plain error. See United States v. McCabe, 270 F.3d 588, 590
(8th Cir. 2001)(in the absence of extenuating
circumstances, the failure to raise a § 3553(c) objection at
sentencing waives the issue); United States v. Kingsley,
241
F.3d 828, 835-36 (6th Cir. 2001)(where no objection made,
failure to give reasons subject to plain error review); United
States v. Caicedo,
937 F.2d 1227, 1236 (7th Cir. 1991)
(where no objection made, no entitlement to remand for
resentencing).
Thus, for this Court to grant the relief the defendants
seek, the District Court must have committed plain error
that prejudiced them. United States v. Adams,
252 F.3d
276, 285 (3d Cir. 2001). Even where error and prejudice are
found, we will only exercise our discretion to correct the
error if it “ ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’ ”
Id. (quoting
United States v. Olano,
507 U.S. 725, 735-736 (1993)). We
decline to exercise our discretion to correct any error here,
despite the fact that neither Borgesi nor Merlino was
sentenced at the bottom of the applicable range. Cf. United
States v. Gricco,
277 F.3d 339, 363 n.15 (3d Cir. 2002)
(failure to provide reasons harmless where defendant
received lightest sentence possible). The District Court
presided over a four month trial, held lengthy sentencing
hearings, and approved and adopted detailed pre-sentence
investigation reports. The record created precludes any
finding that the absence of a formal statement of reasons
had — or has — the potential to seriously affect the
“fairness, integrity or public reputation” of the proceedings
in this case.
31
IV.
For the foregoing reasons, and with the exception only of
defendant Lutz’s conviction on Count Sixteen (and finding
of “proven” on RA18) and the three-level enhancement to
his offense level, the judgments of conviction and sentence
will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
