The tape recordings, combined with Gravano's testimony, presented to the jury a picture of a large-scale enterprise involved in various criminal activities. The jury heard evidence on the structure and inner workings of the Gambino Family, and learned of the miscellaneous crimes with which Gotti and Locascio were charged: murders, obstruction of legal proceedings, conspiracies, gambling operations, and loansharking activities.
Following a six-week trial, the jury found Gotti guilty of all charges in the indictment. Locascio was found guilty of all charges except the count relating to a gambling operation in Queens, New York. Each defendant-appellant was sentenced by the district court to life in prison on the RICO and murder counts, and the statutory maximum prison terms on all remaining counts, with all sentences to run concurrently. The court also imposed five years of supervised release, a $250,000 fine on each defendant, and mandatory special assessments.
Several months after sentencing, government attorneys discovered previously undiscovered reports that potentially pertained to Gravano's credibility. The government turned over those reports to the defendants-appellants, who subsequently moved for a new trial pursuant to Fed.R.Crim.P. 33, on the ground that the government had not disclosed relevant evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This motion and a later renewed motion were both denied by the district court.
On appeal, Gotti and Locascio raise numerous challenges to their convictions and the subsequent denial of their motion for a new trial. For the reasons stated below, the court affirms the judgments of the district court.
États-Unis d'AmériqueThe most significant evidence consisted of conversations intercepted at 247 Mulberry Street in New York during the period from late 1989 until early 1990. The government had installed three listening devices in that building: in the Ravenite Social Club on the first floor, in a hallway behind the club's rear door, and in an apartment two stories above the club ("the Ravenite Apartment"). It was this last location that proved the most fruitful for the government, and the most damaging for the defendants-appellants. In the discussions in the Ravenite Apartment, Gotti, Locascio, and other Gambino Family members discussed various illegal acts. These discussions formed the core of the proof against the defendants-appellants at trial.
On July 18, 1991, a grand jury in the Eastern District of New York returned a thirteen count superseding indictment against Gotti and Locascio. The indictment also named two other defendants, Salvatore Gravano and Thomas Gambino, who are not parties to this appeal. All four defendants were charged with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c)-(d) (1988), for unlawfully conducting and participating in the affairs of a criminal enterprise through a pattern of racketeering activity. The charged enterprise was the Gambino Organized Crime Family of La Cosa Nostra ("the Gambinos," "The Gambino Family," or "the Gambino Crime Family"). Gotti was charged as the head of the organization, and Locascio was accused of being the "underboss," or second-in-command.
Gravano was charged as the "consigliere," or advisor, to Gotti. Following the indictment, Gravano pleaded guilty to a superseding racketeering charge and testified at length at trial against Gotti and Locascio. The charges against Gambino, a "captain" in the organization, were severed.
Counts One and Two of the indictment charged Gotti and Locascio with the substantive and conspiracy violations of RICO. Many of the crimes charged as racketeering acts in the RICO counts were also the basis of separate counts in the indictment. Gotti was charged with the following predicate acts: the conspiracy to murder and the murder of Paul Castellano; the murder of Thomas Bilotti; the conspiracy to murder and the murder of Robert DiBernardo; the conspiracy to murder and the murder of Liborio Milito; and obstruction of justice at the Thomas Gambino trial. Gotti and Locascio were both charged with the following predicate acts: the conspiracy to murder and the murder of Louis DiBono; the conspiracy to murder Gaetano Vastola; conducting an illegal gambling business in Queens, New York; conducting an illegal gambling business in Connecticut; conspiracy to make extortionate extensions of credit; and obstruction of justice in the investigation of the Castellano murder. Gotti and Locascio were also charged in separate counts for a conspiracy to obstruct grand jury investigations, bribery of a public servant, and a conspiracy to defraud the United States.
Trial began in February 1992. The government's proof to support the allegations that Gotti and Locascio had been in command of an extensive criminal enterprise was comprised mostly of lawfully intercepted tape-recorded conversations of the defendants-appellants and other alleged members of the Gambino Family. The government introduced tape recordings from four different locations over an eight-year period.
The most significant evidence consisted of conversations intercepted at 247 Mulberry Street in New York during the period from late 1989 until early 1990. The government had installed three listening devices in that building: in the Ravenite Social Club on the first floor, in a hallway behind the club's rear door, and in an apartment two stories above the club ("the Ravenite Apartment"). It was this last location that proved the most fruitful for the government, and the most damaging for the defendants-appellants. In the discussions in the Ravenite Apartment, Gotti, Locascio, and other Gambino Family members discussed various illegal acts. These discussions formed the core of the proof against the defendants-appellants at trial. Another major source of evidence was the testimony of Salvatore Gravano, who cooperated with the government following the indictment. As a high-level insider in the Gambino Family, Gravano's testimony was especially damaging.
Several months after sentencing, government attorneys discovered previously undiscovered reports that potentially pertained to Gravano's credibility. The government turned over those reports to the defendants-appellants, who subsequently moved for a new trial pursuant to Fed.R.Crim.P. 33, on the ground that the government had not disclosed relevant evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This motion and a later renewed motion were both denied by the district court.
On appeal, Gotti and Locascio raise myriad challenges to their convictions and to the subsequent denial of their new trial motions. They contend that the district court erred in: (1) disqualifying counsel for both Gotti and Locascio for conflicts of interest; (2) allowing certain government expert testimony; (3) instructing the jury; (4) allowing evidence of other crimes that were inadmissible against them; (5) impanelling an anonymous sequestered jury; (6) refusing to sever Locascio's trial; and (7) denying a motion for a new trial based on the government's suppression of material relating to Gravano's credibility. The defendants-appellants also argue that they were denied a fair trial based on the government's suppression of exculpatory evidence and prosecutorial misconduct.
Admission of Expert Testimony
At trial, Special Agent Schiliro testified at great length on the nature and function of organized crime families, imparting the structure of such families and disclosing the "rules" of the La Cosa Nostra. For example, Schiliro testified that a "boss" must approve all illegal activity and especially all murders, and that the functions of the "consigliere" and "underboss" are only "advisory" to the "boss." In addition, as part of his testimony, he interpreted the numerous surreptitiously taped conversations introduced into evidence, and identified the individuals speaking by their voices. Schiliro specifically named John Gotti as the boss of the alleged Gambino Family and Gravano as the consigliere. Additionally, he identified, together with their titles, ranks, and functions, numerous members and associates of the Gambino Family and other criminal organizations. When pressed about his sources for individuals' titles, ranks, and functions, Schiliro admitted that his sources of information were not necessarily before the court.
Under the Federal Rules of Evidence, an expert is permitted to testify in the form of an opinion or otherwise when that testimony would "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. In determining whether such evidence will assist the jury, the district court must make a "`common sense inquiry'" into "`whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.'" Fed.R.Evid. 702, advisory committee note, (quoting Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952)), quoted in United States v. Onumonu, 967 F.2d 782, 788 (2d Cir.1992). In applying this standard, the district court has broad discretion regarding the admission of expert testimony, and this Court will sustain the admission unless "manifestly erroneous." United States v. DiDomenico, 985 F.2d 1159, 1163 (2d Cir.1993); United States v. Rivera, 971 F.2d 876, 887 (2d Cir.1992).
The defendants-appellants challenge the admission of expert testimony on the inner workings of the Gambino Family as being outside the scope of expert testimony. We have, however, previously upheld the use of expert testimony to help explain the operation, structure, membership, and terminology of organized crime families. See United States v. Daly, 842 F.2d 1380, 1388 (2d Cir.),
The defendants-appellants argue that Schiliro was not properly qualified as an expert, since his testimony required knowledge of linguistics, the sociology of crime, tape recording technology, and voice analysis. Gotti and Locascio contend that because he was not an expert in any of those areas, he was not qualified to interpret tapes or give his opinion on the Gambino Family structure.
This argument ignores the fact that Schiliro had been an FBI agent for seventeen years, and for five years had been on the FBI's Organized Crime Program, a squad that investigated only organized crime cases. For more than two years, he was the supervisor of the Organized Crime Program. Rule 702 only requires that an expert witness have "scientific, technical, or other specialized knowledge" gained through "knowledge, skill, experience, training, or education." Fed.R.Evid. 702. Because Schiliro's background qualifies as "specialized knowledge," the district court did not err in qualifying him as an expert.
Defendants-appellants next argue that because Schiliro relied upon "countless 938*938nameless informers and countless tapes not in evidence," his testimony violated Fed. R.Evid. 703 and the Confrontation Clause of the Sixth Amendment. The government responds that, although Schiliro relied upon information that was not before the court, this reliance is permitted under the rules of evidence.
According to Rule 703, the facts that form the basis for an expert's opinions or inferences need not be admissible in evidence "[i]f of a type reasonably relied upon by experts in the particular field." Fed.R.Evid. 703 (emphasis added). Thus, expert witnesses can testify to opinions based on hearsay or other inadmissible evidence if experts in the field reasonably rely on such evidence in forming their opinions. See Daly, 842 F.2d at 1387 (holding that organized crime expert can rely on otherwise inadmissible hearsay in forming his opinion)
Gotti and Locascio do not seriously contest the point that hearsay and other inadmissible evidence are often reasonably relied upon by law enforcement agents in the field, and that this reliance is anticipated by Rule 703. Rather, they argue that a district court admitting expert testimony based on inadmissible evidence must make an explicit finding that the underlying sources of information used by the expert are trustworthy.
We decline, however, to shackle the district court with a mandatory and explicit trustworthiness analysis. The district judge, who has the ideal vantage point to evaluate an expert's testimony during trial, already has the authority under Fed.R.Evid. 403 to conduct an explicit trustworthiness analysis should she deem one necessary.
Finally, the defendants-appellants argue that because an accomplice witness was available to provide similar testimony concerning the operations of organized crimefamilies, the government was not permitted to introduce expert testimony on the subject. Rule 702, however, requires only that an expert have "some specialized knowledge that will assist the trier of fact." There is no requirement that prohibits a government agent from testifying as an expert merely because an accomplice witness is also available.
The defendants-appellants challenge the introduction of testimony from two other sources: FBI Agents George Mueller and George Gabriel. The record reflects, however, that neither of these witnesses testified as experts, and that neither defendant-appellant objected to their testimony when it was given. Therefore, we find no reason to disturb the district court's admission of their testimony.
Although we recognize the dangers inherent in the use of government experts in cases such as this one, we hold that the admission of such testimony was not manifestly erroneous.
Gotti and Locascio both contend that the district court committed reversible error in admitting the testimony of government experts to assist the jury in understanding the structure of organized crime families. More specifically, they principally challenge various facets of FBI Agent Lewis Schiliro's testimony, arguing that: (1) Schiliro's testimony was too broad and went beyond the scope of expert testimony; (2) he was not properly qualified as an expert; (3) his use of hearsay and un-introduced evidence to substantiate his opinions violated Fed.R.Evid. 703, as well as the Confrontation Clause; and (4) the availability of similar testimony by an accomplice witness rendered his testimony unnecessary.
Gotti and Locascio contend that the district court erred in admitting Schiliro's testimony for several reasons. The thrust of their argument is that Schiliro did not actually testify as an expert, but rather was simply a conduit allowing inadmissible evidence and arguments to flow into the court. They assert that Schiliro's testimony was too broad, sweeping, and unsubstantiated to be admissible.
The defendants-appellants argue that Schiliro was not properly qualified as an expert, since his testimony required knowledge of linguistics, the sociology of crime, tape recording technology, and voice analysis. Gotti and Locascio contend that because he was not an expert in any of those areas, he was not qualified to interpret tapes or give his opinion on the Gambino Family structure.
Substantive and conspiracy violations of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1962(c) and (d) (1988), and various predicate acts charged as separate counts.
Substantive and conspiracy violations of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1962(c) and (d) (1988), and various predicate acts charged as separate counts.
United States Court of Appeals, Second Circuit.
6 F.3d 924 (1993)
Link to judgement - https://scholar.google.com/scholar_case?case=7785209414516472991&q=organized+crime&hl=en&as_sdt=2006
Discussed at length was the issue on admission of expert testimony, particularly the testimony of an FBI agent who detailed the structure of the organized crime syndicate.