In an earlier indictment filed on May 30, 1990, not the subject of the trial below or this appeal, Amuso and fourteen codefendants were charged in various RICO counts with corrupting the profitable window replacement industry in New York City. That indictment (the "Windows indictment") alleged that the defendants gained control of the union responsible for window replacement in New York City, Local 580 of the Architectural and Ornamental Ironworkers, and extorted illegal payoffs from window replacement companies in exchange for labor peace. The Windows indictment also charged as part of the scheme that the defendants controlled window manufacturing and installation companies, rigged bids for public window replacement contracts to favor their companies, and forced legitimate companies out of the market through intimidation and threats of violence.
When the trial on the Windows indictment (the "Windows trial") began on May 8, 1991, Amuso was a fugitive. In May 1990, upon learning of the impending Windows indictment, Amuso had fled New York City and gone into hiding. Amuso remained a fugitive until July 1991 when FBI agents captured him in Scranton, Pennsylvania and brought him back to New York.
In April 1992, the grand jury returned a superseding indictment (the "indictment") that was the basis for the trial in the district court and this appeal. In addition to the Windows indictment charges, the indictment charged Amuso with tax fraud conspiracy and with fourteen murders, attempted murders, and/or conspiracies to murder, at least five of which were said to have been committed while Amuso was a fugitive. The indictment alleged that as boss of the Luchese crime family, Amuso possessed ultimate and exclusive authority to approve murders on behalf of the family, that he exercised this authority frequently, and that he retained this power while on the run.
At a pretrial hearing, Judge Nickerson granted the government's motion for an anonymous and sequestered jury. In May 1992, the Windows and murder charges, along with a charge that Amuso conspired to defraud the United States by filing a false and misleading tax return, proceeded to trial.
The government charged Amuso, in a fifty-four count indictment, with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d), as well as tax fraud and substantive and conspiracy violations constituting the RICO predicate acts. After a jury trial in the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge), Amuso was convicted on all fifty-four counts and sentenced, inter alia, to life in prison.
On appeal, Amuso challenges evidentiary rulings which (1) allowed evidence of Amuso's flight and continued absence to be used as evidence of consciousness of guilt; (2) excluded certain extrinsic negative character evidence pertaining to a prosecution witness; (3) admitted evidence of criminal conduct by one of Amuso's co-conspirators; and (4) allowed expert testimony regarding the structure and terminology of organized crime families. Amuso also claims that the district court erred in deciding to empanel an anonymous and sequestered jury.
Continuous absence
This court has not previously decided whether "continued absence" may be considered by a jury as probative of a defendant's consciousness of guilt. It notes, however, that the same considerations that allow a jury to use flight evidence in a proper case also protect a defendant from undue prejudice with respect to continued absence. Before a district court may instruct the jury regarding flight it must determine that the evidence is relevant, and there must be a factual predicate in the record from which a reasonable jury can make the required inferences that give flight evidence its probative value. The requisite factual predicate ensures that the evidence is probative in a legal sense and protects the defendant against the possibility of the jury drawing unsupported inferences from otherwise innocuous behavior. The trial court's ability to exclude flight evidence as unduly prejudicial, even when a proper factual predicate exists, affords the defendant additional protection.
When there is an adequate factual predicate that a defendant remained a fugitive because of a guilty conscience, his continued absence is probative in much the same way as his initial flight. The probative value of continued absence evidence, as with flight (and all other circumstantial evidence), will depend on the strength of the factual predicate from which certain inferences can be drawn. As a factual predicate, the government must establish that the defendant remained absent because of his consciousness of guilt with respect to the particular crimes charged.
When the predicate is weak the probative value of continued absence evidence will be marginal; the trial court must consider this when balancing its probative value against any prejudice, and exercise its discretion to exclude the evidence where appropriate. When admitted, the defendant remains free to refute continued absence evidence with evidence in explanation or denial. Because continued absence evidence can be probative in a particular case, however, the court was unable to accept the defendant's position that this evidence should be excluded as a matter of law.
The court concludes that the record does not reveal a factual predicate sufficient to warrant the district court's jury instruction on continued absence. According to D'Arco, the government's own witness, Amuso's express intention when he left New York was to avoid trial with his codefendants on the original Windows indictment, and to return at a later date to face trial on his own. The government claims that the factual predicate can be inferred from evidence that before he discovered that Chiodo was cooperating with the government Amuso discussed the timing of his return with D'Arco on several occasions but, after learning of Chiodo's defection, such discussions ceased. Beyond this ambiguous silence the government offered no evidence to show that Amuso had deviated from his original plan to return after the original Windows trial concluded. To the contrary, because Amuso was captured before the completion of the Windows trial, the government was unable to show that Amuso changed his mind and decided to remain a fugitive indefinitely. It was therefore error for the court to instruct the jury that it could consider Amuso's continued absence as consciousness of guilt with respect to any of the murder charges.
However, the court's improper instruction with respect to Amuso's continued absence does not require reversal of the murder related charges because the error was harmless in light of the overwhelming evidence of Amuso's guilt.
Expert witness
A district court has broad discretion under Fed.R.Evid. 702 whether to admit expert testimony, and that discretion will be disturbed only if it was manifestly erroneous. United States v. Skowronski, 968 F.2d 242, 246 (2d Cir.1992).
When the tenor of the expert's testimony is closely aligned with the facts of the case, the testimony may create an improper implication "that a law enforcement specialist ... believes the government's witness[] to be credible and the defendant to be guilty." Cruz, 981 F.2d at 663.
Agent Taylor's expert testimony was not, however, used exclusively to bolster the government witnesses' versions of the events. Agent Taylor testified about a broad range of topics including common cosa nostra terminology necessary to explain tape recorded evidence, and the existence and structure of New York crime families— topics we previously have held to be proper subjects of expert opinion. Despite the prevalence of organized crime stories in the news and popular media, these topics remain proper subjects for expert testimony.
Moreover, although D'Arco's and Chiodo's testimony that Amuso had to authorize all murders overlapped to a degree with Agent Taylor's, this fact alone does not prohibit the expert from also testifying on this subject. Agent Taylor's testimony did not serve simply to bolster the testimony of the government's fact witnesses as to matters readily understood by the average juror. Accordingly, we find no manifest error in Judge Nickerson's decision to admit the expert testimony.
Amuso first challenges Judge Nickerson's decision to admit evidence of Amuso's flight, and to instruct the jury that his flight and continued absence could be used as evidence of consciousness of guilt. Amuso left New York shortly before the original Windows indictment was filed and remained a fugitive until his capture fourteen months later. Amuso claims that because several of the murders charged in the superseding indictment took place while he was already in hiding, his flight could not possibly prove his consciousness of guilt with respect to those charges. He also contends that Judge Nickerson erred in allowing the jury to infer 1258*1258consciousness of guilt from his "continued absence" after he knew that witnesses with knowledge of his activities were cooperating with the government. Amuso argues that the admission and use of the flight and continued absence evidence was so prejudicial as to require reversal of the murder charges. He further contends that since the murder charges were an integral and inflammatory part of the indictment and evidence, we should reverse the Windows charges as well based on spillover prejudice.
Amuso next contends that even if the flight evidence was properly admitted, the district court erred by instructing the jury that it could consider, as evidence of Amuso's guilt, his "continued absence" after he knew persons with knowledge of his activities were cooperating with the government. Amuso asserts that with no murder charges in the original Windows indictment, the only rational inference that could be drawn from his initial flight, if any, was consciousness of guilt as to the Windows charges. Thus, he argues that it was improper to instruct the jury that it could consider his flight as evidence of any murder charges.
Amuso's final evidentiary challenge relates to evidence offered at trial by FBI special agent Brian Taylor regarding the organization, structure, and terminology of organized crime families. Specifically, Amuso objects to Agent Taylor's testimony about the alleged rule of organized crime that only the boss "can order executions or any execution performed by the family has to have his authority." Amuso challenges this portion of the testimony claiming it was offered "solely to bolster the credibility of the government's fact-witnesses."
Fifty-four count indictment, with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d), as well as tax fraud and substantive and conspiracy violations constituting the RICO predicate acts.
United States Court of Appeals, Second Circuit.
21 F.3d 1251 (1994)
Link - https://scholar.google.com/scholar_case?case=3392805326926884556&q=organized+crime&hl=en&as_sdt=2006
