Daly was the business agent-at-large for Local 638 of the Enterprise Association of Steam Fitters ("Local 638"), which had jurisdiction over steam-fitting jobs in the five boroughs of New York City and on Long Island. Giardina, who also was active in New York labor union affairs, was an acquaintance of both Daly and Castellano. Miron was a lumber contractor who was acquainted with Castellano, Daly, and other union officials.
In 1981, Matthews Piping submitted a $10 million bid for a contract to replace the piping in a deepwater oil storage and pipeline facility at Port Mobil in Staten Island, New York ("Port Mobil"). Because Local 638 could supply only a small number of welders with the skills necessary to perform the Port Mobil job, Matthews planned to use welders from other states, and his bid was premised on the lower cost of the imported labor.
Matthews testified that in the fall of 1981, anticipating that he would need the cooperation of Local 638 in his attempt to import welders for the Port Mobil job, Matthews met with Daly, explained why he needed to use imported labor, and gave Daly $5,000 in cash. Daly told Matthews he would see what he could do. In November, Matthews Piping was awarded the Port Mobil contract. Despite the payment to Daly, when the imported welders began working, Local 638 picketed the jobsite. The picketing was led by Thomas Patchell, a business agent for Local 638. Matthews testified that he still believed, however, that Daly could quiet the union. Accordingly, in December 1981, while the picketing was in progress, he met with Daly and gave him another $5,000 in cash.
Matthews Piping filed charges with the National Labor Relations Board, seeking to have the pickets removed. The parties reached a settlement in which the union agreed to remove the pickets for 30 days. During the 30-day period, Patchell discovered that the imported welders belonged to other locals around the country. He filed charges against these welders for accepting employment with a nonunion contractor, causing the "ring leader" among the out-of-state welders to be fined by his local and threatened with expulsion. As a result, Matthews lost most of his welders on the jobsite. He complained to Daly, but Daly replied that he was unable to control Patchell.
In January 1982, seeking advice on how to solve his problem with Local 638, Matthews consulted Miron, whom he had known for some twenty years, because "Miron had pretty good union connections, he knew a lot of the big people." Miron assured Matthews that he would arrange to eliminate the union's objection to the imported welders, but that Miron "would have to pass out a hundred thousand dollars to people." Some weeks later, Matthews delivered $50,000 in cash to Miron at Miron's home, agreeing to bring the remaining $50,000 at a later time. Miron assured Matthews that he would take care of the problem. Miron gave $25,000 of this payment to Daly. He also gave $15,000 to Castellano, who, in turn, gave at least $45,000 to Giardina.
Some months after the first visit, Matthews returned to Miron's home with the remaining $50,000. When Miron stated that he had given $25,000 of the first payment to Daly, Matthews replied that he thought Miron foolish to give money to Daly, because he did not believe Daly could be of help. Matthews told Miron that Matthews had previously given Daly $10,000. Miron responded that Matthews should never have paid money to Daly directly.
Despite his efforts to neutralize Patchell, Matthews was forced on May 6, 1982, to sign a collective bargaining agreement with Local 638. As a result, his costs on the Port Mobil job were higher than he had originally anticipated. On several occasions thereafter, Matthews contacted Miron, unsuccessfully demanding the return of his money.
In early May 1983, Matthews sent Miron a registered letter, threatening to go to the authorities if at least some of his money were not returned. In the first week of May, Matthews met with Daly and similarly threatened to go to the FBI or other authorities. As revealed by the surveillance tapes discussed below, Matthews's threat was promptly relayed by Daly to Giardina and by Giardina to Castellano.
At least as early as March 1983, the FBI was conducting an investigation into the activities of the Gambino crime family. In an ongoing electronic surveillance, government agents intercepted and recorded many conversations at the home of Castellano. Tape recordings of several of these conversations were played for the jury in order to provide background information on the nature and structure of organized crime in general and the Gambino family in particular.
In the May 5, 1983 conversation, Giardina told Castellano that Daly had called Giardina the day before with some urgency, to tell him that Matthews was threatening to "go[] to the Task Force." Castellano responded, "You know why," stating it was because Daly had "robbed his money." Castellano viewed Daly's actions as a detriment to the entire organization. He was annoyed both because Daly had failed to give any money to Patchell to secure Patchell's assistance, and thereby had failed to give Matthews the labor peace he had bargained for, and because Daly had accepted $5,000 from Matthews on his own initiative, without the approval of Castellano. Giardina defended Daly, stating that he had received Daly's assurance that some of the money had been distributed to labor union officials other than Patchell and that those payments had permitted Matthews to get at least some work done on the Port Mobil project.
The conversation repeatedly returned to Matthews's threat to go to the authorities, with Giardina noting that "he's crying cop," and that Daly was "worried that Matthews is gonna rat him out." Castellano noted that Matthews had a close connection with "somebody named Lent in Congress." Giardina thought Lent was a member of a Task Force or that Matthews had some other close relative who was a member of a Task Force. Finally, having noted that "[t]he deal was a hundred," that Daly was supposed to receive $50,000 and share it with Patchell, and that the family was supposed to receive the other $50,000, Castellano determined that Matthews would have to be paid at least $25,000, which "may not be enough."
On June 2, 1983, Giardina returned to Castellano's home. He reported that he had received assurances from Daly that money had been returned to Matthews. On June 6, Miron reported to Castellano that he had retrieved $25,000 from Daly and would return it to Matthews.
In all, in the spring or summer of 1983, in accordance with Castellano's orders, Miron returned $50,000 to Matthews in two $25,000 installments.
United States of AmericaDaly and Giardina were named in a 22-count superseding indictment charging them and 14 other defendants with various crimes arising out of activities of the Gambino crime family. Daly was charged in five counts: one count of conspiring to conduct a pattern of racketeering activity through the Gambino family in violation of 18 U.S.C. § 1962(d), three counts of accepting bribes in violation of the Taft-Hartley Act, 29 U.S.C. §§ 186(a)(2) and (b)(1), and one count of conspiring to pay a bribe to one Thomas Patchell in violation of 29 U.S.C. § 186(a)(2). Giardina was charged in four counts: one count of RICO conspiracy in violation of § 1962(d), one count of aiding and abetting Daly's receipt of a bribe in violation of 29 U.S.C. §§ 186(a)(2) and (b)(1) and 18 U.S.C. § 2, one count of conspiring to pay a bribe to Patchell in violation of 29 U.S.C. § 186(a)(2), and one count of obstructing a federal criminal investigation in violation of 18 U.S.C. § 1510. Daly, Giardina, and codefendant Julie Miron were severed from the other defendants for trial.
The FBI surveillance tapes were admitted against Daly on the ground, inter alia, that they reflected statements of his coconspirators in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E). Daly contends that admission of the tapes on this ground was improper because there was insufficient evidence to connect him with the alleged conspiracy. He also contends that the tapes that did not mention him, which were admitted as background and served as proof of a RICO enterprise, should have been excluded as to him once the court dismissed the RICO conspiracy count against him. We reject both contentions.
In order to admit out-of-court statements pursuant to Rule 801(d)(2)(E), the trial court must find that the government has established by a preponderance of the evidence that there was a conspiracy, that both the declarant and the party against whom the statements are offered were members of the conspiracy, and that the statements were made in furtherance of the conspiracy. See, e.g., United States v. DeJesus, 806 F.2d 31, 34-35 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1299, 94 L.Ed.2d 155 (1987). In making these preliminary factual determinations, the court may take into account the proffered out-of-court statements themselves if those statements are sufficiently reliable in light of independent corroborating evidence. Bourjaily v. United States, ___ U.S. ___, 107 S.Ct. 2775, 2781-82, 97 L.Ed.2d 144 (1987). The evidence in the present case plainly warranted admission of the tapes against Daly.
Daly testified in his own behalf. He confirmed many of the events testified to by Matthews, including Matthews's 1981 request to use imported labor on the Port Mobil job and to have Daly "lay off him." He described a conversation with Matthews during the first week of May 1983, in which Matthews stated that he had given a large amount of money to Miron and that he was going to go to the FBI or other law enforcement authorities; Daly acknowledged that he had promptly — perhaps on the same day — reported Matthews's threat to Giardina. Daly testified, however, that Matthews had never offered him any money, either on the Port Mobil project or at any other time when Daly was an agent for Local 638.
On his appeal, Daly argues principally that the trial court erred in admitting the FBI surveillance tapes into evidence against him. He also contends that his sentence was unduly harsh.
Giardina does not challenge the admission of the surveillance tapes against him. Rather, he contends that the admission of Kossler's testimony, part of which related to the tapes, denied him a fair trial because it included hearsay evidence that was neither needed as expert testimony nor proper as background evidence. We disagree.
Rule 702 of the Federal Rules of Evidence gives the trial judge broad discretion to admit expert testimony when he believes it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Rule 703 provides that
[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Fed.R.Evid. 703 (emphasis added). Thus, if experts in the field reasonably rely on hearsay in forming their opinions and drawing their inferences, the expert witness may properly testify to his opinions and inferences based upon such hearsay. United States v. Wright, 783 F.2d 1091, 1100-01 (D.C.Cir.1986); Soden v. Freightliner Corp.,714 F.2d 498, 502 (5th Cir.1983). The decision of the trial court to admit expert testimony is to be sustained on appeal unless it is shown to be "manifestly erroneous."
Giardina did not testify and presented no evidence in his defense.
Giardina contends principally that much of the testimony of agent Kossler should have been excluded and that the evidence was insufficient to support his conviction on any count.
Section 1510 of 18 U.S.C. prohibits "willful[] endeavors by means of bribery to obstruct, delay, or prevent the communication" "by any person to a [federal] criminal investigator" of information relating to a violation of any federal criminal statute. Giardina was convicted of violating this section by reason of the payment to Matthews of $50,000 in response to his threat to go to the authorities. Giardina contends that the evidence was insufficient to support his conviction under this section principally because there was no ongoing federal investigation to obstruct and because the return to Matthews of his own money could not, as a matter of law, constitute bribery. The court was unpersuaded.
Two counts of accepting bribes in violation of the Taft-Hartley Act, 29 U.S.C. §§ 186(a)(2) and (b)(1) (1982)
Giardina was sentenced to concurrent prison terms of five years each on the conspiracy and obstruction counts and one year on the Taft-Hartley count
fines totaling $40,000, and to special assessments of $50 on each count.
One count of aiding and abetting Daly in receipt of a bribe, in violation of 29 U.S.C. §§ 186(a)(2) and (b)(1) and 18 U.S.C. § 2 (1982); one count of obstructing a criminal investigation, in violation of 18 U.S.C. § 1510 (1982); and one count of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d) (1982)
fined $10,000 on each count, and required to pay a special assessment of $50 on each count.
United States Court of Appeals, Second Circuit.
842 F.2d 1380 (1988)
Link to judgement - https://scholar.google.com/scholar_case?case=9007587610595152412&q=organized+crime&hl=en&as_sdt=2006
Comments
The government's case against these three defendants was presented principally through the testimony of Robert Matthews, an officer of Matthews Industrial Piping Co. ("Matthews Piping"), a piping contractor located in the Bronx, New York; and tape recordings the government had obtained through surveillance of the home of Paul Castellano, then the boss of the Gambino crime family.