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permitting expert testimony that the defendant was a "made member of the Gambino Family" and on "how disputes between members of different [La Cosa Nostra] families are resolved"
Summary of this case from U.S. v. SabirOpinion
S1 02 CR. 273 (PKL)
April 17, 2003
OPINION AND ORDER
Defendant in this case, George Lombardozzi, is charged with conspiring to make and making an extortionate extension of credit under 18 U.S.C. § 892, and conspiring to use and using extortionate means to collect an extension of credit under 18 U.S.C. § 894. The government moves in limine for the admission at trial of the following evidence: (I) the testimony of the victim concerning his understanding that defendant is associated with organized crime; (2) the testimony of Kenneth McCabe as an expert witness regarding organized crime; and (3) statements from the plea allocution of Frank Isoldi, an alleged co-conspirator, to prove the existence of a conspiracy. For the following reasons, the government's motion is granted with some limitations on the expert testimony.
A brief recitation of the factual allegations will put these evidentiary issues in context Lombardozzi is allegedly a member of an organized crime family. Frank Isoldi, a former defendant who has pleaded guilty to one overlapping count, is an alleged associate of Lombardozzi. According to the Indictment, Lombardozzi and Isoldi made an extortionate extension of credit to Henry Leung and later used extortionate means, namely threatening physical harm, to collect the extension of credit.
Leung is referred to as "Debtor #2" in the Indictment.
I. Leung's Testimony Regarding Lombardozzi's Ties to Organized Crime is Admissible
The first application is directed to the testimony of Henry Leung, the victim in this case. According to the government, if permitted by the Court, Leung will testify that at the time he first borrowed money from Lombardozzi and Lombardozzi's alleged coconspirator, Frank Isoldi, and through the entire life of the loan, he understood that Lombardozzi and Isoldi were associated with organized crime. Such testimony in this type of case is entirely appropriate.
To prove the elements of 18 U.S.C. § 892, the government must show, inter alia, that the debtor understood "delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person." 18 U.S.C. § 891 (6) (defining extortionate extension of credit). Therefore, Leung's state of mind is essential to the government's case. See United States v. Natale, 526 F.2d 1160, 1168 n. 10 (2d Cir. 1975) (stating that "the state of mind of the victim would appear an essential element of [ 18 U.S.C. § 892] to be proved"). Furthermore, the statute states that a court may allow evidence that
[a]t the time the extension of credit was made, the debtor reasonably believed that either (A) one or more extensions of credit by the creditor had been collected or attempted to be collected by extortionate means, or the nonrepayment thereof had been punished by extortionate means; or (B) the creditor had a reputation for the use of extortionate means to collect extensions of credit or to punish the nonrepayment thereof.18 U.S.C. § 892 (b)(3). Therefore, as the Second Circuit has recognized, "[e]vidence that the debtor believed the loanshark was connected to organized crime is admissible to show the debtor's belief that the loanshark would use, or had a reputation for using, extortionate means to collect extensions of credit." United States v. Gigante, 729 F.2d 78, 83 (2d Cir. 1984) (Kearse, J.); see also United States v. DeVincent, 632 F.2d 147, 151 (1st Cir. 1980) ("All of the testimony concerning [the debtor's] subjective understanding, his first hand knowledge of [defendant's] past practices, and his knowledge of [defendant's] reputation were highly probative of his understanding that nonpayment would be punished by extortionate means."). Defendant has cited no authorities to undermine this proposition
Because the government must prove the subjective state of mind of the victim in this case in order to obtain a conviction for a substantive violation of 18 U.S.C. § 892, Leung's testimony is both relevant and admissible. Therefore, the government's application in this regard is granted.
The Court notes that if Leung testifies about words spoken to him by others regarding defendant's connections to organized crime, such testimony would likely not be objectionable on hearsay grounds as it would be introduced not for its truth but to show the effect on the listener; in other words, to show Leung's state of mind. See United States v. Zizzo, 120 F.3d 1338, 1353-54 (7th Cir. 1997); DeVincent, 632 F.2d at 151.
A limiting instruction may be appropriate and the Court will consider any such request. See Gigante, 729 F.2d at 83.
II. Kenneth McCabe Will Be Permitted to Testify as an Expert with Some Limitations
The government seeks to introduce the expert testimony of Kenneth McCabe, a criminal investigator with the United States Attorney's Office. If permitted, McCabe will testify "that there are five [La Cosa Nostra ("LCN")] families in the New York area, about the organization and structure typically adopted by the New York LCN families, and the roles and activities of each rung of the typical LCN family hierarchy." Letter to the Court from AUSAs Diane Gujarati, Esq. Adam B. Siegel, Esq., dated Mar. 20, 2003 ("Mar. 20, 2003 Letter") at 8. As an example, the government indicates that McCabe will explain that made members of LCN families often operate through individuals known as associates. Additionally, McCabe would outline the requirements for admission into an LCN family, describe the dispute resolution mechanisms typically employed when a dispute arises between members of different LCN families, and state that defendant is a made member of the Gambino LCN Family.
Expert testimony is permissible when it "will assist the trier of fact to understand evidence or to determine a fact in issue." Fed.R.Evid. 702;see, e.g., United States v. Locascio, ¶ F.3d 924, 936 (2d Cir. 1993); United States v. Scop, 846 F.2d 135, 140 (2d Cir.), modified on other grounds, 856 F.2d 5 (2d Cir. 1988). Expert testimony should be limited to situations in which the subject matter is beyond the ken of the average juror. See Locascio, 6 F.3d at 936; United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991); Andrews v. Metro-North Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989) (stating that expert testimony is not proper if it is regarding "matters which a jury is capable of understanding and deciding without the expert's help"). Furthermore, expert testimony is not excludable merely because it encompasses an ultimate issue of fact to be decided by the jury. Fed.R.Evid. 704; see, e.g., United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); United States v. Daly, 842 F.2d 1380, 1388 (2d Cir. 1988) (Kearse, J.). The decision to allow expert testimony is left to the discretion of the court, Locascio, 6 F.3d at 936; United States v. Tutino, 883 F.2d 1125, 1134 (2d Cir. 1989), and will not be overturned unless it is manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35 (1962); United States v. Dukagjini, ___ F.3d ___ 2003 WL 1063153, at *4 (2d Cir. 2003); Bilzerian, 926 F.2d at 1295. Even if acceptable under Rule 702, the Court should exclude expert evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403; Dukagjini, 2003 WL 1063153, at *3; Castillo, 924 F.2d at 1232 n. 9.
Under appropriate circumstances, the Second Circuit has allowed broad and extensive expert testimony regarding the structure, operations and terminology of organized crime families. See, e.g., United States v. Amuso, 21 F.3d 1251, 1263-64 (2d Cir. 1994) (permitting expert testimony regarding the organization, structure and terminology of organized crime families); Locasio, 6 F.3d at 936-37 (affirming conviction in which expert witness testified regarding the nature, function, structure, rules and jargon of LCN families and identified members and ranks of members of the Gambino Family); United States v. Skowronski, 968 F.2d 242, 246 (2d Cir. 1992) (Kearse, J.) (allowing expert testimony defining organized crime jargon); Tutino, 883 F.2d at 1134 (same); Daly, 842 F.2d at 1388 (approving of expert testimony including the identification of the five New York crime families, their requirements for membership, their rules of conduct and the meaning of certain jargon); United States v. Ardito, 782 F.2d 358, 360 (2d Cir. 1986) (affirming conviction in which expert defined LCN terms). It has not suggested, however, that such testimony is acceptable any time the defendant is allegedly connected to the LCN. See Locasio, 6 F.3d at 939 ("We remind the district courts, however, that they are not required to admit such testimony. . . ."); United States v. Long, 917 F.2d 691, 701-03 (2d Cir. 1990) (finding reversible error to allow expert testimony regarding the hierarchical structure of crime families, the roles of each rung of an LCN family and the definition of organized crime jargon because it was "marginally relevant," not helpful to the jury and "substantially prejudicial"). Expert testimony must be relevant to the facts of the particular case at bar. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993) (stating that expert testimony must be "relevant to the task at hand"); see also Fed.R.Evid. 704 advisory committee's note ("Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time."); Locasio, 6 F.3d at 939 (noting that charges against the defendants in that case were "intimately related to organized crime" and therefore expert testimony was relevant and helpful).
The allegation that a defendant is in the mob is not a shibboleth, the mere incantation of which opens the door to extensive expert testimony regarding organized crime. The Court must consider the particular facts, allegations and charged crimes in a case when determining whether proffered expert testimony is necessary and not base its analysis and determination solely on the government's contention that the defendant is a gangster. See Long, 917 F.2d at 73 ("At the time of [the expert's] testimony, however, the court had before it only the indictment and an offer of proof, neither of which demonstrated relevancy. Greater inquiry should have been made as to the degree to which the hierarchy, jargon and general criminal activities of organized crime families would be relevant.").
The Court finds that McCabe is certainly qualified to give expert testimony encompassing the proffered testimony. Based on the information provided thus far, however, his testimony must be more limited than the government proposes.
The Court makes this determination based on the proscriptions of Rule 702, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579. (1993), and its progeny, and the Court's observation of McCabe's expert testimony in a prior organized crime trial. The defendant has not contested McCabe's qualifications as an expert on organized crime.
Testimony regarding the organization and structure typically used by LCN families is relevant and permissible, but only to the extent that it is necessary to understand the alleged relationship between defendant and Isoldi. Therefore, testimony explaining the relationship between made members of an LCN family and trusted associates will be helpful to the jury and will be allowed. Additionally, the Court will permit some background information to be supplied to the jury regarding where a made member fits into the hierarchy of a crime family. The Second Circuit has noted on several occasions that such testimony is beyond the ken of the average juror, see Amuso, 21 F.3d at 1264; Locasio, 6 F.3d at 937;Daly, 842 F.2d at 1388. Seemingly unlimited development of the roles and activities of other ranks of organized crime families, however, is unnecessary, potentially prejudicial and will not be permitted.
Background evidence is "evidence that does not directly establish an element of the offense charged, in order to provide background for the events alleged in the indictment." Daly, 842 F.2d at 1388; Skowronski, 968 F.2d at 246. It can be admitted to show "the circumstances surrounding the events." Daly, 842 F.2d at 1388; see also United States v. Mulder, 273 F.3d 91, 102 (2d Cir. 2001) ("The government is free to offer expert testimony . . . as background for an offense. . . .");United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997) ("To be relevant, evidence need only tend to prove the government's case, and evidence that adds context and dimension to the government's proof of the charges can have that tendency. Relevant evidence is not confined to that which directly establishes an element of the crime."). The background testimony will be allowed so that the jury understands that there are crime family members ranked above regular made members and associates.
This determination is influenced by the fact that this is an extortion case. Defendant has correctly noted that in many of the cases in which extensive testimony regarding the structure and hierarchy of LCN families was permitted, the defendants were charged under the RICO statute and the evidence was relevant, inter alia, to show the existence of the racketeering enterprise. While expert testimony about, the nature and operations of crime families is certainly not limited to cases in which RICO violations are charged, such testimony is more logically relevant in such instances. The Court must be careful to admit only that testimony that is necessary to prove the elements and background of the charged crimes in this case.
McCabe's testimony that Lombardozzi is a made member of the Gambino Family is also relevant and helpful to the jury. It bears directly on whether Leung's subjective beliefs about defendant's debt collection practices were reasonable, 18 U.S.C. § 892 (b)(3); see also United States v. Zannino, 895 F.2d 1, 11 (1st Cir. 1990) ("Evidence of a defendant's nexus to organized crime can be taken into account in evaluating reasonableness of a debtor's fears . . ."); United States v. Annoreno, 460 F.2d 1303, 1309 (7th Cir. 1972) ("[T]he inquiry should be whether the record as a whole discloses a reasonable basis upon which the borrowers might have predicated their fear that default or delinquency might result in harm to themselves or their families."), and is not unfairly prejudicial. Therefore, such testimony is admissible.
Additionally, McCabe's testimony regarding how disputes between members of different LCN families are resolved is relevant and helpful to the jury. The government intends to introduce evidence from two cooperating witnesses regarding other loans under Rule 404(b). Each of these witnesses will testify that disputes arose between the defendant and other LCN family members regarding loans and that these disputes were resolved at meetings attended by members of multiple LCN families. McCabe's testimony will assist the jury in understanding these disputes and how they were resolved.
The Court has ruled that this evidence is admissible in a separate Opinion. Because the relevancy of the dispute resolution testimony hinges on the admissibility of the cooperating witnesses' testimony, if at any point the Court reconsiders the decision to admit their testimony, the dispute resolution testimony will most likely be irrelevant and either be excluded or stricken from the record.
On the present record, the government has made no attempt to show how testimony regarding the requirements for admission into an LCN family is helpful for the jury or even relevant to the matter at hand. While such testimony is undoubtedly potentially interesting to the jury, it does not seem to bear on any issue that the jury must decide in this case. Therefore, based on the current record, such testimony will not be permitted.
Such testimony may also raise potential Rule 403 problems. The government has not indicated what the alleged requirements are for admission into a crime family. It seems that, at least for some crime families, participation in a murder is necessary. See United States v. Pungitore, 910 F.2d 1084, 1098 (3d Cir. 1990). In the instant matter, where the charged crimes relate only to extortion, testimony implying that defendant may in some way have been involved in a murder would be irrelevant, immaterial and unfairly prejudicial.
In summary, the Court will permit McCabe to give expert testimony, but it must be consistent with the limitations expressed above.
III. The Selected Portions of Isoldi's Plea Allocution Are Admissible
The government also seeks to introduce portions of Isoldi's plea allocution. On September 19, 2002, Isoldi pled guilty to, inter alia Count Nine of the indictment, which charged Isoldi (and Lombardozzi) with conspiring to participate in the use of extortionate means to collect an extension of credit in violation of 18 U.S.C. § 894. Specifically, he stated that he conspired with others to collect a loan from Leung, that he phoned Leung in an effort to obtain repayment of the loan, and that he used means that were calculated to create fear of physical harm in Leung. See Transcript of Proceeding Sept. 19, 2002, at 23-24 ("Sept. 19, 2002 Tr."). The government wishes to offer the plea allocution to prove the existence of the conspiracy. In order for the Court to allow the admission of the selected portions of plea allocution, hearsay rules of the Federal Rules of Evidence and the Confrontation Clause must be considered.
Out of court statements offered to prove the truth of the matters asserted are generally barred from admission into evidence at trial. Fed R. Evid. 801 802. There are, however, several exceptions, including statements against interests. A statement against interest is
[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
Fed.R.Evid. 804(b)(3). The Second Circuit has recognized on numerous occasions that guilty plea allocutions often qualify as statements against interest. See, e.g., United States v. Moskowitz, 215 F.3d 265, 268-69 (2d Cir. 2000); United States v. Gallego, 191 F.3d 156, 167-68 (2d Cir. 1999) (Sotomayor, J.); United States v. Williams, 927 F.2d 95, 98-99 (2d Cir. 1991); United States v. Scopo, 861 F.2d 339, 348-49 (2d Cir. 1988) (Kearse, J.); United States v. Winley, 638 F.2d 560, 561-62 (2d Cir. 1981). Indeed, "[i]t is hard to conceive of any admission more incriminating to the maker or surrounded by more safeguards of trustworthiness than a plea of guilty in a federal court." Winley, 638 F.2d at 562. Only those portions of an allocution that are actually self-inculpatory, however, are admissible, and self-serving exculpatory statements must be redacted. See Williamson v. United States, 512 U.S. 594, 600 (1994); Moskowitz, 215 F.3d 265, 269 (2d Cir. 2000).
In the instant matter, Isoldi's plea allocution was against his penal interest. It exposed him to a potentially long prison sentence. Furthermore, the redacted version is wholly self-inculpatory as it only establishes the necessary elements of 18 U.S.C. § 894. Finally, the allocution does not mention Lombardozzi. Therefore, Isoldi's plea allocution is admissible under Rule 804(b)(3).
Isoldi was informed before he allocuted that he faced up to twenty years of imprisonment for Count 9 alone see Sept. 19, 2002 Tr. at 8, and was later sentenced to forty-one months' imprisonment.
The following sections of Isoldi's September 19, 2002 plea allocution may be used: page 23, line 7 through page 24, line 4 and page 24, line 11 through page 24, line 17. The second section may appear to cause the same concerns that the Second Circuit had in United States v. Tropeano, 252 F.3d 653, 658-59 (2d Cir. 2001). The difference, however, is that in Tropeano, the declarant making the allocution had confessed to all of the elements of conspiracy before the government requested a follow-up question. See id. at 655-56. The answer, therefore, was not against the declarant's interest and could be interpreted as an attempt to curry favor with the government. See id. 658-59. In the Isoldi allocution, before the government requested clarification, he appeared to state that he conspired with the victim. See Sept. 19, 2002 Tr. at 23. The clarification ensured that all of the elements of the crime were allocuted to and therefore is a statement against interest, regardless of the fact that it was in response to a government-raised question.
Defendant has not contested Isoldi's unavailability. According to the government, he has indicated through counsel that if called to testify, he would assert his Fifth Amendment privilege against self-incrimination. Therefore, he is, without question, unavailable. See United States v. Matthews, 20 F.3d 538, 545 (2d Cir. 1994) (Kearse, J.) (stating that a declarant is unavailable if she invokes her Fifth Amendment privilege); United States v. Bakhtiar, 994 F.2d 970, 977 (2d Cir. 1993) see also Williams, 927 F.2d at 98-99 (stating that a witness need not be brought into court to assert the privilege and the Court can rely on the government's assertion that declarant's attorney stated declarant would invoke the privilege).
At oral arguments, defendant seemed to argue that the government should immunize Isoldi so that he would be available to testify. "[T]he law appears to be well settled that the power of the Executive Branch to grant immunity to a witness is discretionary. . . ." United States v. Lang, 589 F.2d 92, 95-96 (2d Cir. 1978). A witness who invokes his Fifth Amendment privilege is unavailable to all parties even though the government has the power to make that witness available through the use of immunity. See United States v. Dolah, 245 F.3d 98, 102-03 (2d Cir. 2001). To the extent that defendant may be seeking to raise the procedural due process issue that the Second Circuit discussed in Dolah, 245 F.3d at 105-07, such an argument must also fail.
A plea allocution that is admissible under Rule 804(b)(3) is not automatically acceptable under the Confrontation Clause of the Constitution. See United States v. Petrillo, 60 F. Sup p. 2d 217, 218 (S.D.N.Y. 1999). "In all criminal prosecutions, state as well as federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, `to be confronted with the witnesses against him.'" Lilly v. Virginia, 527 U.S. 116, 123 (1999) (quoting U.S. Const. Amend. VI). To satisfy the Confrontation Clause when an unavailable declarant's statement is offered against the accused, the hearsay statement must either (1) fall within a firmly rooted hearsay exception, or (2) contain particularized guarantees of trustworthiness such that cross-examination would be expected to add little, if anything, to the statement's reliability. Id. at 124-25; Gallego, 191 F.3d at 167. Neither the Second Circuit nor the Supreme Court has decided whether statements against interest are a firmly rooted hearsay exception. See Moskowitz, 215 F.3d at 269; Gallego, 191 F.3d at 167.
The Second Circuit has, however, found "particularized guarantees of trustworthiness" where (1) the plea allocution subjected the declarant to the risk of lengthy imprisonment, ""even if it was also made in the hope of obtaining a more lenient sentence,"' (2) the declarant was under oath when giving the allocution, and (3) the district court gave a proper limiting instruction regarding the use of the evidence. Moskowitz, 215 F.3d at 269 (quoting Gallego, 191 F.3d at 167). Those factors and more are present in this case and therefore the plea allocution has sufficient indicia of reliability.
As stated above in the Rule 804(b)(3) analysis, Isoldi's plea allocution exposed him to the possibility of a lengthy term of imprisonment and therefore was against his interest. See Williamson, 512 U.S. at 605 (noting that "the very fact that a statement is genuinely self-inculpatory . . . is itself one of the particularized guarantees of trustworthiness that makes a statement admissible under the Confrontation Clause" (internal quotation marks omitted)). Additionally, Isoldi was under oath when he allocuted to the crime, see Sept. 19, 2002 Tr. at 2, and the Court will give a limiting instruction at the proper time.
There are additional factors present in this case that further underscore the reliability of Isoldi's plea allocution. The declarant was represented by able counsel both during and before the allocution. See id. at 11-13. Furthermore, Isoldi is not cooperating with the government and therefore has no motive "to artificially assist the government by exaggerating the nature or extent of the . . . conspiracy." Petrillo, 60 F. Supp.2d at 220; see also United States v. Chan, 184 F. Supp.2d 337, 343 n. 2 (S.D.N.Y. 2002) (Leisure, J.).
Lombardozzi argues that the allocution is suspect because he believes that the plea was "the result of a negotiated disposition with the government, pursuant to which Isoldi was required to plead guilty to specific counts, including one which also charged Lombardozzi, in exchange for the dismissal other counts in which Isoldi had been charged." Letter to the Court from Charles F. Carnesi, Esq., dated Apr. 7, 2003 at 7. This allegation is certainly part of the Court's consideration of the inherent trustworthiness of the plea allocution. See Scopo, 861 F.2d at 348; see also Mary Cecilia Sweeney-Kwok, Note, An Argument Against the Arbitrary Acceptance of Guilty Pleas as Statements Against Interest, 71 Fordham L. Rev. 215 (2002) (arguing that when the government is involved in the plea allocution through the plea bargaining process, the allocution is untrustworthy and its admission violates the Confrontation Clause). However, considering the entire circumstances attendant to Isoldi's plea allocution, the Court finds that it is sufficiently trustworthy and therefore satisfies the dictates of the Confrontation Clause. The government's motion in this respect is granted.
Because the plea allocution is only admissible to prove the existence of the conspiracy and Isoldi's role in the crime and it cannot be used to prove defendant's participation, Dolah, 245 F.3d at 101; Moskowitz, 215 F.3d at 268-69; Gallego, 191 F.3d at 168; Williams, 927 F.2d at 98-99, the Court will give a limiting instruction at the time it is introduced and again in the final jury charge in order to ensure there is no misuse of the evidence by the jury. The limiting instruction will read as follows:
You have heard that Frank Isoldi pled guilty to a conspiracy charge and, in connection with that plea, made statements about his participation in certain crimes charged in the Indictment. You may consider Mr. Isoldi's plea statements as evidence of his own activities, which are relevant to this case. You may consider the statements as evidence, and give them such weight as you believe is appropriate. Please understand, however, that you may only consider those statements on the issues of: (1) whether the conspiracy charged in Count Nine existed; and (2) what Frank Isoldi did in connection with that alleged conspiracy. The question of whether the defendant was a member of the conspiracy charged in Count Nine of the Indictment, and whether he participated in it, is an issue for which you will have to rely on other evidence. There is no evidence in Mr. Isoldi's plea statements naming the defendant or any other co-conspirator. If you find that the conspiracy charged in Count Nine existed, you must decide as a separate question whether the defendant was part of the conspiracy charged in Count Nine, based entirely on other evidence in the case. There is nothing in Mr. Isoldi's plea statements that answers this question one way or the other.
This instruction is informed by and adopted from both the limiting instruction given by Judge Griesa in the Williams case, which was cited with approval by the Second Circuit, Williams, 927 F.2d at 98, and the government's proposed instruction.