text:
Genovese Family
Sir John's Pub in Jersey City was a Genovese/Gigante Family front.
May 6, 2010 Anthony Olszewski	1 Comment
SIR JOHN'S PUB
Sir John's Pub in Jersey City represents another example of an organized crime associate having a hidden interest in a licensed establishment. John Ciani, the licensee for Sir John's, until recently was a front for Genovese/Gigante crime family associate Anthony "Tony the Guinea" Rotolo of Bayonne. Rotolo is disqualified from holding the license himself because of a criminal record and ties to organized crime, which were summarized in State Police Superintendent Dintino's prepared statement to the Commission at the public hearing:
Anthony Rotolo of Bayonne, New Jersey, is a Genovese/Gigante associate. Rotolo has been convicted on charges of extortion, fraudulent activities, assault and public disorder offenses.
Rotolo was a close associate of the late John DiGilio, after whose death Rotolo aligned himself with Genovese consigliere Louis "Bobby" Manna of Jersey City, who is presently incarcerated on federal racketeering charges.
During the Commission's investigation, Rotolo and his wife Jane were observed by its agents on numerous occasions in 1988 and 1989 acting in a supervisory capacity at Sir John's Pub. Rotolo's wife was the tavern's manager of record that time.
Despite observations by its agents, witnesses who appeared before the Commission repeatedly denied that Rotolo ran the business. A number of them admitted during interviews that Rotolo was in fact running the bar but gave different stories during testimony in private hearings before the Commission.
Waitress Donna Isabella admitted in an interview with Special Agent Grant Cuzzupe that she had been paid under the table by "Jane or Tony," and that Tony was the boss. But when subpoenaed to testify, Isabella denied that Rotolo was her boss or that he paid her.
Joseph Fucci, a local building contractor, similarly contradicted himself. In an interview with Agent Cuzzupe, Fucci stated that Rotolo arranged for Fucci and his son to perform renovations at Sir John's Pub. Fucci said Rotolo gave him a $1,500 deposit and orally agreed that Rotolo would be responsible for another $13,500 within a year. Fucci told Agent Cuzzupe that no payment schedule was set up because he and Rotolo are friends. Fucci said that Rotolo still owes $8,000 and pays "a few hundred dollars" whenever he sees Fucci. Again, however, Fucci's story changed significantly and became confused when asked specific questions in his private testimony before then-Commissioner W. Hunt Dumont:
Q. When you told Special Agent Cuzzupe that Tony Rotolo gave you a sum of money to start this work, that wasn't true?
A. I did a mistake. It wasn't true because I didn't know was — you know — what really I received the money that time.
Q. When you told Special Agent Cuzzupe that Tony Rotolo gave you some money —
A. No — Tony.
Q. — after that first time that wasn't true either?
A. No, No.
COMMISSIONER DUMONT: Are you saying now that Mr. [John] Ciani gave you the money? THE WITNESS: No, now. All the time Ciani gave me the money.
COMMISSIONER DUMONT: I'm just interested in what you're saying now. Ciani gave you the money? THE WITNESS: Ciani gave me the money.
Mauro "Moe" Abbato, the owner of Complete Vending, which supplied cigarettes to Sir John's, told Agent Cuzzupe during an interview that he has known and been a supplier for Rotolo since he started his business in 1981. He initially loaned Rotolo $5,000 that would be repaid through machine proceeds, and he supplied Agent Cuzzupe with collection slips as evidence of this loan. During his private testimony, however, Abbato contradicted what hehad said in the interview:
Q. When you were interviewed by Agent Cuzzupe, you told him that it was Tony Rotolo who asked for the $5,000 loan and not Ciani?
A. When I — when — when Mr. Grant [Cuzzupe] called me up and told me that he wanted to meet with me, I asked him if there was anything that he might want to know from me, should I take any information with me and he said no, so I went cold.
To the best of my recollection, what he asked me I answered, you know. I —
Q. And when you told him it was Tony who wanted the $5,000 loan, was that the truth?
A. I might have thought it was, but I even thought that I gave Tony the money, but I didn't give it to Tony….
Another associate of Rotolo, William Guarini, a local plumbing and heating contractor, performed renovations at Sir John's. Work orders for Guarini's services at Sir John's have "Tony" written on one such document and Rotolo's phone number on another. But in his testimony Guarini denied that Rotolo hired him and insisted instead that it was Ciani. Guarini could not explain why Rotolo's name and phone number appeared on the invoices. Guarini also attempted to minimize his knowledge of Rotolo's involvement at Sir John's Pub in general and, specifically, in regard to the plumbing work at the establishment.
Q. The first time when you did the work, at the time of the renovations of Sir John's Pub, who hired you to do the work?
A. Well, I was called down to look at it and I gave the price— well, Tony was down there when I went down there.
Q. Who told you to go down?
A. Ciani — I went over all the bathrooms with John Ciani and everything else.
Q. Who called you to go down there?
A . Ciani the first time.
And when you went there, you saw Tony?
I can't recall. I think he was there. I'm pretty sure he was there. I can't recall that, but I think he was there.
Who told you what kind of work had to be done?
What? Ciani, John Ciani.
Was Tony Rotolo involved in those conversations at all?
I don't recall that part of it.
Is it possible he was?
Possible he was.
In fact, wasn't it Tony who went over the work with you more than John Ciani did?
I can't recall that part. Might have, yes, might have, but I can't recall it. You know, it's a year and a half ago and I can't recall that part of it.
Interestingly, Guarini had previously completed work at the My Way Lounge and the Body Shop, establishments in which Rotolo also held undisclosed interests.
The use of John Ciani as a front was not Rotolo's first attempt to conceal his ownership interest in Sir John's. Rotolo and his first partner, Michael Della Rosa, purchased the property and Della Rosa formed the Midel Corporation, which then applied for the liquor license in 1987. Jersey City ABC authorities, however, determined that Della Rosa was fronting for Rotolo who, as the landlord, would have derived benefit from the bar through a lease. The Midel application for licensure was denied by Jersey City. (Della Rosa has since been convicted on gambling charges.)
In private session before the Commission, Della Rosa invoked his Fifth Amendment privilege in response to all questions regarding his association with Rotolo and Sir John's.
Shortly after Della Rosa's license application was denied, John Ciani purchased the property and license. The license transfer to Ciani was approved in January, 1988, and six months later, Rotolo acquired a 50% interest in the real estate. A local newspaper article published shortly after Ciani obtained the bar and license identified Rotolo as the new owner of Sir John's.
When John Ciani appeared in a private hearing before the Commission, he too invoked his Fifth Amendment privilege. He did the same at the public hearing, resulting in Counsel Saros' challenging his suitability to hold a liquor license.
Anthony Rotolo also invoked his Fifth Amendment privilege in both private and public hearings.
Rotolo was surveilled by Commission agents on numerous occasions acting in a supervisory capacity. On at least four occasions in October, 1988, Rotolo was observed performing managerial functions such as unloading equipment, working in the kitchen, moving liquor, acting like a host with patrons, discussing renovations of the facility, using keys to open doors and assisting in deliveries. After the agents began issuing subpoenas for records and individuals to testify, however, Rotolo was not seen on the premises again. In fact, Rotolo had to be located elsewhere in order to serve him with a subpoena.
Surveillances in January, 1992, did not find Rotolo at Sir John's; John Ciani was present, however. In conversation with Commission agents acting in an undercover capacity, Ciani indicated that he was now the sole owner, having recently bought out his partners. Real estate records corroborate that Rotolo divested himself of his interest in the property in August, 1990.
From a NJ SCI report.
Anthony RotoloJohn Ciani
Bruno / Scarfo Family
Phone directory contained the names of two La Cosa Nostra members from the Philadelphia family
MEDFORD VILLAGE RESORT AND COUNTRY CLUB
The Medford Village Resort and Country Club in Medford Township, Burlington County, was used by some members and associates of the Bruno/Scarfo crime family to further illegal gambling activities.
Moreover, the club was partly owned, until 1985, by Anthony "Tony Buck" Piccolo of Philadelphia, who was until recently acting boss of the crime family.
Finally, the club's license was improvidently issued in 1971 because the establishment did not meet the legal criteria to qualify for such a license. The license remains in place to this day.
The situation has been allowed to occur in part because Medford officials do not require background investigations of licensees. The township police chief told Commission agents that any background investigations are done by the municipal clerk, with the ultimate responsibility lying with the State ABC. He said his department has never done a criminal history check or a fingerprint check on applicants for licensure. The chief acknowledged that he is aware that the club has been associated for years with operatives of the Bruno/Scarfo crime family yet he never passed the information to the governing body.
The crime family member who used the club for purposes associated with gambling was Salvatore "Shotsie" Sparacio, along with several of his associates including Blase Salvatore, Sr., Thomas Lauria, Nicholas J. Caputi, Sr., James Grandrimo, Sr. and James C. Grandrimo, Jr. In his statement during the public hearing, State Police Superintendent Dintino confirmed that Sparacio "has been identified as a soldier in the Bruno/Scarfo crime group." He also attested to the fact that Sparacio used the Medford Village Country Club to meet with operatives involved in the illegal gambling operation. Colonel Dintino identified Salvatore, who is Sparacio's cousin, and Thomas Lauria as organized crime associates working for Sparacio in his gambling network.
Sparacio and several of his subordinates have been observed together often at the Medford Village Resort and Country Club by law enforcement officers from various agencies. The continual presence of Sparacio and the others is alone a violation of ABC regulations. Moreover, there is no evidence that Sparacio was ever "sponsored by" or "personally attended by" a club member on his continual visits to the Medford Village Club, another violation of ABC requirements for club licenses. In September, 1981, Sparacio was put on the Casino Control Commission's exclusion list, which was created to keep undesirable persons out of the casinos. Sparacio has defied the exclusionary order. After this Commission's public hearing, which took place more than 10 years after Sparacio was barred from the casinos, he was told by club president Michael Procacci through an intermediary to keep out of the club. Blase Salvatore, however, remains a member despite his criminal record. James Grandrimo Sr. and James Grandrimo Jr. are also members.
Salvatore was also employed as manager at the club while on a state prison work release program in 1977. Such employment was in violation of ABC regulations in that Salvatore did not possess a Rehabilitation Permit from the ABC, which is required whenever an employee has a criminal record. Sparacio has seven gambling convictions between 1948 and 1990, two of them with Thomas Lauria. Salvatore has four bookmaking convictions between 1969 and 1987.
Salvatore's 1986 conviction stemmed from his arrest on club premises on October 19, 1985. Police found gambling wagers valued at $6,700 on his person, along with the key to an apartment in Mount Laurel that was used for accepting telephone bets. Gambling operative Nicholas Caputi, Sr. was arrested at the apartment the same day as Salvatore; gambling records were found in his possession. Salvatore and his codefendants Caputi, Sparacio, Steven Argentina, Lauria and James Anderson were all ultimately convicted.
Another item confiscated from Salvatore at the time of his arrest was his phone directory. Commission Special Agent Michael Hoey testified at the public hearing as to the significance of its contents:
At that time, his phone directory contained the names of two La Cosa Nostra members from the Philadelphia family, those being Thomas DelGiorno, who most people know as a cooperating witness but at the time was a La Cosa Nostra member, and also the name of Salvatore Sparacio, who is also a made member of a Philadelphia family.
There were also other names of lower-level gambling operatives that are accountable to the Bruno/Scarfo organization ….
In his public hearing testimony, Thomas DelGiorno identified both Salvatore and Sparacio as bookmakers aligned with the Bruno/Scarfo organized crime family:
Q . Do you know Blase Salvatore, Senior?
Is he an associate in the Philadelphia mob?
He's with Shotsie. Shotsie's cousin, too, I think.
Were they involved in illegal gambling activities together?
Bookmaking business.
Did you have any part in that?
In their business?
At what time? At the time of —
Well, tell us what time that you know them to be involved in bookmaking and what —
I met Blase and Shotsie around 1964. I was — I was in my early twenties and I had just started into the bookmaking business. They were the first bookmakers that I worked for and that was the sports business. I worked for them for a couple of years and then my business just — I used to turn half of the booking to them. My business grew and I pulled it away and started taking care of it myself.
When you worked for Blase Salvatore, where did you used to meet with him?
He'd come over to my house in Philly sometimes and sometimes I'd go over to Camden. There was a — I might have the wrong place. It was either 4th or 5th and Pine. There was a little bar there, bar/ restaurant or something.
Q. When did you first meet Shotsie Sparacio?
A. Around the same time. He was Blase's — well, wait. Him and Blase — yeah, he was Blase's partner in — but I didn't deal with [Sparacio] at that time directly. I had met him but never did business with him. I first got to know him and got close to him around ten years later, like around '74.
Anthony Piccolo's involvement in organized crime was detailed by Colonel Dintino at the public hearing.
Anthony "Tony Buck" Piccolo has been identified as a soldier and member of the Bruno/Scarfo organized crime family. A first cousin of Nicodemo Scarfo, Piccolo was elevated by Scarfo to consigliere.
In 1989, Piccolo assumed a leadership position as acting boss when Scarfo was convicted on federal RICO charges. It was during this time that Piccolo was recorded conducting the "making" ceremony by an informant reporting to the New Jersey State Police. Piccolo's activity with the Bruno/ Scarfo family was a violation of his probation stemming from a 1987 commercial bribery conviction. It is known that Piccolo was president of the now defunct Baron Maintenance Services, Inc., a Camden, New Jersey company involved with contract bid rigging. In addition to his earlier conviction for commercial bribery, Piccolo was arrested during [New Jersey State Police] Operation Broadsword and charged with numerous crimes, including illegal gambling.
Thomas DelGiorno provided first-hand informa
tion about Piccolo's membership in the Bruno/Scarfo
Q. Do you know Anthony Piccolo, known as Tony Buck?
Q. And do you know "Tony Buck" to be a made member?
Q. Do you know approximately when he was inducted into the family?
A. Well, I heard that he was made for a lot of years; maybe in the late '50s or early '60s.
Q. Who made him consigliere?
A. His cousin Scarfo.
Q. And how did you learn that?
A. Scarfo told me he'd been, you know, [made] the consigliere.
Q. Did Scarfo tell you why he selected Tony Buck?
A. Not really. He — I knew why. Because it was his cousin. I mean, he didn't explain that to me. He didn't have — he doesn't have to explain why he does it. You know, he was the boss.
Q. Before he became consigliere, he was under a captain?
A. Me.
Piccolo acquired an ownership interest in Medford Village in 1974 when his company, Baron Maintenance Services, Inc., formerly of Philadelphia and Camden, bought into the club. The interest was never hidden but was always listed in publicly available corporate papers.
On January 7, 1974, Alfred Squitire, one of 15 original partners in the club, transferred 84 shares of his stock to Baron Maintenance. Piccolo's signature appears on the sale agreement. In December, 1985, almost 12 years later, Piccolo signed documents transferring his stock from Baron Maintenance to Michael Procacci of Cherry Hill, the club president.
Piccolo's signature as president of Baron Maintenance appears on receipts acknowledging a $40,000 check dated December 18, 1985, and a $53,812.50 check dated June 16, 1986, both from Michael and Frances Procacci, in payment for Baron's shares of stock. Piccolo signed many other documents during his 12-year association with the club.
During the Commission's public hearing, Counsel Saros asked Piccolo about these transactions but he invoked his Fifth Amendment privilege and refused to answer any questions.
Q. When Alfred Squitire became one of the original partners of Medford Village Resort and Country Club, was he representing your interest?
A. That would be the same answer, ma'am. [Exercising Fifth Amendment privilege]
Q. What was Squitire's involvement with Baron Maintenance Services?
A. That would be the same answer.
Q. On January 7, 1974 Squitire transferred his shares in Medford Village Resort and Country Club Incorporated to Baron Maintenance Services. Was that transfer done at your direction?
A. That would be the same answer, ma'am.
Q. The SCI is in possession of a number of corporate documents executed by the partners of Medford Village Resort and Country Club Incorporated. I show you one such document which is Exhibit 21 —
MR. ZAZZALI: Let the record show that Exhibit 21 is being shown to the witness and to his counsel, Mr. [Salvatore] Avena.
Q. I would direct your attention to Page 3 of the document and ask if that's your signature as president of Baron Maintenance Services?
Q. Why did you want an ownership interest in the country club?
Q. On December 4, 1985, the stock held by Baron Maintenance Services was sold to Michael Procacci. Why was that done?
Q. $100,000 was paid by Mr. Procacci to purchase the stock. What was done with that money?
Q. You will now be shown Exhibit Number 13 which shows the front of a check made out to Baron Maintenance Services in the amount of $40,000. Below is a typed receipt indicating that the check was, in fact, received and your signature appears under that. Is that, in fact, your signature as president of Baron Maintenance?
The country club is owned and operated by two for-profit business entities known as Medford Village Resort and Country Club, Inc., and Medford Associates. A third entity, purportedly non-profit and known simply as Medford Village Resort and Country Club, holds the club liquor license and assists in the operation of the country club.
Separate investigations by the ABC Enforcement Bureau and the Commission have established that the "non-profit" corporation which holds the club's liquor license has been a sham since its inception in 1971. The country club is, in fact, operated by the for-profit corporation. During the public hearing, Commission Special Agent Hoey was asked to elaborate on the ABC regulation regarding club licenses:
A club liquor license is one which can be issued by any township or city and state. It really has no monetary value in that it's not sold or bought. A township has the ability under current ABC guidelines to issue as many or as few club liquor licenses as they so desire and basically that's the reason why they're of little value as far as resale. This is the kind of liquor license that Medford Village Country Club [has].
Now, also there are other types of liquor licenses which are basically referred to as retail liquor licenses and these, of course, are worth money when bought or sold….
Q. And did the country club's use of a club license violate ABC regulations?
A. The way it was utilized, yes…. According to ABC regulations, club liquor licenses have to be issued to non-profit organizations … basically for VFWs, Knights of Columbus, that type of charitable organization or recreational entity.
… Medford Village Country Club … abused the club liquor license. In fact, as a result of our investigation and an investigation in some cases that paralleled our investigation which was done by the … State ABC Enforcement Bureau, we were able to determine that that club liquor license at Medford Village was, in fact, a sham in almost every respect.
There … weren't separate bank accounts … separate meetings and minutes….With a club liquor license … you're supposed to have a minimum of 60 voting members and it's supposed to be autonomous….With … Medford Village there were six directors who were all original investors in the club….They called the shots so absent that club liquor license the for-profit entity ran the business, and it's this … entity [in] which Mr. Anthony Piccolo, the La Cosa Nostra member, had a stock interest….
Q. And there is currently pending an ABCenforcement action against the licensee. Is that correct?
A. Yes, that's true, and there are extensive charges along the lines that I just related concerning the club license being a sham.
The ABC charges center on the non-profit status of the entity that holds the liquor license. The matter is scheduled to be heard in December by an administrative law judge.
In executive session, club president Michael Procacci testified at length regarding the three Medford Village entities, in particular the "nonprofit" organization utilizing the club license. When asked for an explanation as to why this type of license was obtained, Procacci, a successful and wealthy businessman, placed the responsibility on his lawyers and his own lack of knowledge on the subject. He also said that the only reason a club license was sought was because a plenary retail license was not available.
In terms of the operational practices of the business entities, little distinction is made between the non-profit and the profit making entities. Moreover, club membership must be 60 or more persons and each member should be allowed to vote on management issues. Procacci was asked:
Q. With respect to the non-profit corporation, has the general membership of the country club ever been involved in voting for the trustees of the non-profit corporation?
A. They never had any — they have never had any rights.
Q. They never had any involvement with the non-profit corporation?
A. They never had any rights to get involved there. They had their own body in amongst themselves to be the liaison people between the membership and the ownership, so they wouldn't have any involvement at all, that line of questioning.
The managing partners, one of which was Baron Maintenance, make all of the decisions and Procacci seems to possess absolute power, as his private session testimony reflects:
When it comes to memberships, I want to bring this here out, they have a Board of Governors that run the club itself. It's a body of people that are members that have their own associates into the club. If somebody gets out of order, it comes to the Board. If anybody is — for instance, if a new member comes up to sign up for a membership, we have a membership committee. They search it. They — and they bring it to the Board of Governors, and they accept them or reject them.
Q When was the Board of Governors set up?
A. 1981 or '79 something in that area.
Q. How do you as managing partner relate to the Board of Governors?
A. Well, how do I relate to them? It's very simple. The manager reports to me. He sits in on the — with them as manager, and sometimes, they ask him to leave while they talk about their people and their club.
But anything that came out at the Board of Governors went to the manager, and the manager reported to me. And if I thought that something would be detrimental to the club, I would object, and I would go there and talk to them.
Q. Did you have veto power over any action they might take?
A. Well, if it was really out of line.
But they didn't do anything out of line. I never — I never remember where I vetoed anything —
Q. You didn't have to.
A. — in 20 years. I didn't have to. Sure, I had veto power. If they're talking about spending money that wasn't in the kitty, I had veto power. That's it.
Q. At any time, did you object to a certain individual becoming a member of the country club?
A. Absolutely. First of all, the name would never be — never be handed into the membership committee. When the name would come up for — to be a member, if I didn't like him, I wouldn't — I wouldn't even submit it to the membership committee because I would tell the membership committee I refused to take them in for reasons. But I never had that problem either.
During the public hearing, Commissioner Evenchick asked Special Agent Hoey to elaborate on the roots of the problems with the licensure of the Medford Village Resort and Country Club:
COMMISSIONER EVENCHICK: Agent Hoey, I think I understood you to say that in the early 1980s and over the years until recently, you determined or your investigation disclosed that the local authorities have done virtually nothing by way of checking the backgrounds of individuals associated with this club. Is that correct? MR. HOEY: That is correct, yes.
COMMISSIONER EVENCHICK: Can you clarify for us what you mean when you refer to local authorities? MR. HOEY: Well, according to — my understanding is according to ABC guidelines, rules and regulations that the local townships have the ability to or should conduct background investigations. Now, it can be done by the township fathers, it can be done by the police department at the instruction of the township fathers, but somebody is obligated to do some kind of background investigation …
In the case of the country club, it was never done in Medford. Sometimes townships do as little as a criminal history check which is very minimal. What should really be done is that the finances to purchase a facility should be looked into in depth, along with criminal background investigations and the interviewing of people that are going to buy into the liquor license so the township has a good feel for who's getting a liquor license.
With the case — with Medford Village Country Club, the Township, unfortunately, didn't do anything.
COMMISSIONER EVENCHICK: Did anyone ask any of the Township authorities why they did nothing? MR. HOEY: Well, I went there on an interview during the course of the investigation, and I was told by local authorities that they didn't feel that it was their function to do that and they really, unfortunately, didn't understand what ABC rules and regulations were all about. I don't think they realized that, you know, they were supposed to do this as far as — you know, as far as a background investigation.
COMMISSIONER EVENCHICK: Were you satisfied with that explanation, sir? MR. HOEY: Well, I don't think at the time I really — I wasn't satisfied, no, or we weren't satisfied but that's what we were told.
Anthony PiccoloBlase SalvatoreJames C. GrandrimoJames GrandrimoNicholas J. CaputiSalvatore SparacioThomas DelGiornoThomas Lauria
United States of America v. Tino Fiumara, Michael Copolla, Jerry Copolla and Larry Ricci
Appeal of Tino Fiumara
United States Court of Appeals, Third Circuit. – 605 F.2d 116
Submitted Aug. 6, 1979.Decided Sept. 5, 1979
Matthew P. Boylan, Theodore V. Wells, Jr., Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, A Professional Corporation, Newark, N. J., Dennis D. S. McAlevy, Hoboken, N. J., for appellant.
Robert J. Del Tufo, U. S. Atty., Newark, N. J., for appellee; Maryanne T. Desmond, Chief, Appeals Div., Mark J. Malone, Asst. U. S. Attys., Newark, N. J., on brief.
Before ALDISERT and WEIS, Circuit Judges.
WEIS, Circuit Judge.
The defendant in this criminal proceeding has asked that we enter a stay or enjoin his sentencing proceedings in the district court pending appeal or consideration of a petition for mandamus. He contends that the district court's refusal to exclude the public and press from his sentencing hearing will result in publicity jeopardizing his right to a fair trial in a case pending in a neighboring district. We do not read Gannett Co. v. DePasquale, — U.S. —-, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), to grant the defendant a constitutional right to a private hearing in the circumstances of this case. Entertaining substantial doubts as to the likelihood of his success, both on the merits and on jurisdictional grounds, we deny defendant's motion.
The defendant was convicted on June 20, 1979, of violations of the Hobbs Act, 18 U.S.C. §§ 1951-1952 (1976), and a presentence report was prepared at the direction of the trial judge. After reviewing the report, which contained references to other criminal activity, the defense requested a hearing at which it proposed to refute some of those allegations.
The trial and conviction were in the United States District Court for New Jersey sitting in Newark, New Jersey, and it was there that the sentencing hearing was scheduled for July 17, 1979. At that time, the defendant was under indictment for numerous other offenses, and was scheduled for trial in the Southern District of New York in October 1979. Many of the same newspapers and television stations that cover the district court in Newark also service New York City where the court for the Southern District of New York conducts its trials. The defendant timely asked that the public and press be excluded from the evidentiary hearing on the ground that prejudicial matters inadmissible in the New York trial would be divulged.1 The United States Attorney objected to closing the hearing, and the trial judge denied the defendant's request. A single judge of this court granted interim relief, pending submission of defendant's request for a stay to a motions panel.
In passing upon a motion for a stay, we consider the following factors:
1. the likelihood that the petitioner will prevail on the merits of the appeal;
2. whether there will be irreparable injury to the petitioner unless a stay is granted;
3. whether there will be substantial harm to other interested parties; and
4. the public interest.
See Croskey Street Concerned Citizens v. Romney, 459 F.2d 109, 111-12 (3d Cir. 1972) (Aldisert, J., concurring); 9 Moore's Federal Practice P 62.05, at 62-25 (2d ed. 1975). Addressing the first of these factors we must weigh not only the likelihood of success on the merits but also whether the defendant will be able to satisfy the threshold requirements of jurisdiction. Defendant asserts in his brief that the order of the district court is reviewable at this stage and that as an alternative, jurisdiction exists for mandamus. Both the appeal and the proposed petition for mandamus, however, pose problems in the circumstances present here.
First, it is doubtful that the district court's order is immediately appealable. Defendant concedes that the order is not final within the usual meaning of 28 U.S.C. § 1291, but argues that it comes within the exception to the rule of finality described in Cohen v. Beneficial Finance Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and applied to interlocutory orders within
"that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1225-1226.
The collateral order doctrine has been applied, though sparingly, in the criminal context. As the Court observed in United States v. MacDonald, 435 U.S. 850, 854, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978): "the rule of finality has particular force in criminal prosecutions because 'encouragement of delay is fatal to the vindication of the criminal law.' Cobbledick v. United States, 309 U.S. (323, 325, 60 S.Ct. 540, 81 L.Ed. 783 (1940))." In Abney v. United States, 431 U.S. 651, 656-63, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977), the Court set out three requirements for immediate appeal of a collateral order:
1. the district court's order must have finally disposed of the question and did not leave the matter open, unfinished, or inconclusive;
2. the decision is not simply a step toward final disposition of the case on the merits;
3. the decision involves an important right which would be lost, probably irreparably, if review had to await final judgment.
Assuming, Arguendo, that the first two requirements pose no barrier, we are not persuaded that the third has been hurdled in the case Sub judice.
The defendant argues that he has a right to have the public excluded from the evidentiary hearing based on the holding in Gannett Co. v. DePasquale, supra. But in Gannett, the Court stated explicitly that a defendant has no constitutional right to compel a secret trial, — U.S. at —-, 99 S.Ct. 2898. Moreover, it is significant that there the prosecutor agreed to bar the press, and the trial judge believed that an open hearing would pose a reasonable probability of prejudice to the defendant.
Another distinguishing feature is that the hearing at issue here is posttrial, rather than pretrial as in Gannett. The plurality opinion in that case formulated the question to be whether the public had "an independent constitutional right to insist upon access to a pretrial judicial proceeding," Id. —- U.S. at —-, 99 S.Ct. at 2901, and the concurring opinion of the Chief Justice emphasized that the proceeding under scrutiny was not a trial, but a pretrial hearing, Id. —- U.S. at —-, 99 S.Ct. 2898. Here, by contrast, since defendant has already been convicted, the concern of the Gannett Court that the trial not be prejudiced by pretrial disclosures is not a consideration. Accordingly, we do not agree that the Gannett case supports the premise that the defendant acting alone has a constitutional right to exclude the public from a sentencing hearing.
Of course, defendant does have a right to a fair trial in the Southern District of New York. However, if publicity generated by the trial or evidentiary hearing in Newark affects the New York trial, he may then take appropriate steps there, the usual remedies of voir dire, change of venue, continuance, and the like being available in that forum. To that extent, therefore, the right to a fair trial in New York would not be irreparably lost by denying immediate review here.
We are mindful that the final judgment rule is to be broadly construed and that the Cohen exception must be kept within narrow bounds if the rule is to retain its vitality. Although this case may at best be in the "twilight zone of finality," that there is available a remedy in another forum weighs against use of the collateral order exception here. See In re 1975-2 Grand Jury Investigation of Associated Milk Producers, Inc., 566 F.2d 1293, 1294 (5th Cir.), Cert. denied, 437 U.S. 905, 98 S.Ct. 3092, 57 L.Ed.2d 1135 (1978). We conclude that the defendant has failed to make a strong showing that he is likely to prevail on his contention that the order is appealable, that he will be successful on the merits, or that without the stay he will be irreparably injured.
We do not overlook the strong statement of the court in the Gannett case that
"(t)o safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell (384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600), Supra. And because of the Constitution's pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary." — U.S. at —-, 99 S.Ct. at 2904.
The trial judge's responsibility is not limited solely to the case on his docket and in a situation like the one at bar he may not ignore the consequences in a nearby jurisdiction. But here it appears that preclusion of the public and press from the sentencing hearing is not the only way to protect the defendant's rights. The same result may be accomplished by simply postponing the sentencing until after the pending trial in New York is concluded. The defendant has already offered to remain in custody and waive any right he may have to prompt sentencing. Although there is some indication in the record that continuance of the hearing may be a hardship for one or more witnesses, it would seem that taking depositions, either in conventional form or by videotape, would satisfactorily resolve that problem.
Defendant also asserts that the publicity generated might be harmful should a retrial be ordered in the New Jersey case. He will have the opportunity to raise that contention in a direct appeal from the convictions already entered. The collateral order doctrine, therefore, is not applicable to that argument since no right will be lost by awaiting final judgment. In the posture of the case at bar, we need not comment upon the validity of the defendant's contention in this respect.
What we have said with regard to our doubts that the defendant can prevail on the merits of his request that the public be excluded similarly applies to the assertion that the order is reviewable under the court's mandamus power. As the Supreme Court noted in its discussion of the subject in Will v. Calvert Fire Insurance Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978), the moving party must show a "clear and indisputable" right to the writ. Id. at 662, 98 S.Ct. 2552. Courts of appeals have broad authority on direct appeal but a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), may issue only when "necessary or appropriate in aid of their respective jurisdictions." 437 U.S. at 661, 98 S.Ct. at 2557. Thus, although a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances "would undermine the settled limitations upon the power of an appellate court to review interlocutory orders." Will v. United States, 389 U.S. 90, 98 n.6, 88 S.Ct. 269, 275, 19 L.Ed.2d 305 (1967).
We perceive no strong likelihood that the defendant would be successful in receiving a writ of mandamus directing the district judge to order a closed hearing in the circumstances of this case. Because we conclude that the defendant has failed to make the necessary showing to justify either the issuance of a stay or an injunction pending appeal, his motion will be denied.
Under 18 U.S.C. § 3577 matters inadmissible as evidence at trial are not barred from disclosure to the court after a defendant's conviction. That section provides:
"No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
Jerry CopollaLarry RicciMichael CopollaTino Fiumara
Bobby Manna, Genovese Family, Martin Casella
Louis Anthony Manna and the conspiracy to murder John Gotti and Gene Gotti
Desciscio v. United States
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
RICHARD DESCISCIO, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Greenaway, Jr., U.S.D.J.
This matter comes before this Court on the motion filed by petitioner, Richard DeSciscio ("Petitioner"), pursuant to FED. R. CIV. P. 60(b), seeking to reconsider the denial of Petitioner's Motion to Vacate Conviction, under 28 U.S.C. § 2255 ("Section 2255"),*fn1 and/or reconsider Petitioner's sentencing.*fn2 Petitioner asserts that his right to Due Process under the Fifth Amendment to the Constitution was violated throughex-parte communications with the judge who sentenced him and ruled on his Section 2255 petition following his conviction. For the reasons set forth below, the motion is denied.
I. FACTS
On August 25, 1989 — approximately twenty years ago — a jury convicted Petitioner of racketeering, three counts of conspiracy to murder in aid of racketeering, murder, and conducting an illegal gambling operation. The convictions for conspiracy to murder in aid of racketeering involved the planned murders of John Gotti and Gene Gotti, and the murder of Irwin Schiff in August 1987. Petitioner was tried with co-defendant, Louis Anthony Manna ("Manna"), for these crimes related to the Genovese Family's organized criminal activities. United States v. Manna, No. 97-2034, 2006 WL 3063456 at *1 (D.N.J. Oct. 25, 2006). Former District Judge Maryanne Trump Barry ("Judge Barry") sentenced Petitioner to seventy-five years imprisonment on September 26, 1989.
The Court of Appeals affirmed Petitioner's conviction on November 21, 1990. DeSciscio v. United States, 919 F.2d 733 (3d Cir. 1990). The Supreme Court of the United States denied Petitioner's petition for certiorari on April 15, 1991. DeSciscio v. United States, 499 U.S. 962 (1991).
Petitioner eventually filed a motion to vacate his conviction, pursuant to Section 2255, on April 30, 1997. DeSciscio v. United States, No. 97-2285 (D.N.J. Sept. 9, 1997). Judge Barry denied this motion, as untimely, on September 9, 1997, after finding no grounds for invoking the equitable tolling doctrine to excuse Petitioner's late filing of the motion. Id.
Petitioner filed two motions seeking leave from the Third Circuit to file a second or successive Section 2255 motion. The first of these motions was filed on April 21, 2003 and denied on June 20, 2003. DeSciscio v. United States, No. 03-2129 (3d Cir. June 20, 2003). Petitioner's second motion was filed on May 7, 2007. This motion sought to adopt the "principles articulated in the In re Louis Anthony Manna application presently before the court." (Mot. pursuant to 28 U.S.C. § 2244 at 2, attached as Ex. C to Resp't's Answer.)
Manna's case, then before the Third Circuit, was an appeal of Judge Dickinson R. Debevoise's decision dated, October 20, 2006, denying Manna's Motion to Vacate Judgment, pursuant to Rule 60(b). Manna, 2006 WL 3063456 at *10. In the opinion, Judge Debevoise outlined Manna's discovery of FBI documents through several Freedom of Information Act requests. Id. at *5. The documents, though heavily redacted, represent official correspondence between several FBI field offices and the Director of the FBI ("FBI Memos"). Id.; (FBI Memos attached to Pet'r's Mot. for Relief from J. as Ex. A, B. [hereinafter "Pet'r's Mot. Ex. A" and "Pet'r's Mot. Ex. B"].)
The FBI Memos discuss an investigation into a potential plot to murder individuals involved in Manna's and Petitioner's trial and convictions. (Pet'r's Mot. Ex. B.) The investigation sought to discover the veracity of an alleged plot by Manna, and possibly other inmates, to murder former United States District Judge Maryanne Trump Barry, former United States Attorney Samuel Alito, and former Assistant United States Attorney Michael Chertoff. Manna, 2006 WL 3063456 at *6.
Petitioner alleges that the FBI Memos demonstrate that the FBI believed Petitioner was among the group of conspirators, and further, that the Government informed Judge Barry, after his conviction but before his sentencing, both of the existence of the murder plot and of Petitioner's alleged involvement therein. (Pet'r's Mot. ¶ 12.) Petitioner offers his twice-filed copies of the above-mentioned FBI Memos to support this allegation. (Pet'r's Mot. ¶ 12; Pet'r's Mot. Ex. A.) Petitioner alleges he was unaware of both the murder plot and the fact that information regarding the plot was given to Judge Barry. (Pet'r's Mot. ¶¶ 11, 12.) Petitioner claims that he first discovered this information on January 2, 2008. (Pet'r's Mot. ¶ 12.)
The FBI Memos focus on Manna as the source of the alleged threats. In one FBI memo, the Case Agent wrote that "Manna's reputation and evidence presented at his trial indicate that he is more than capable of ordering the execution of others." (Pet'r's Mot. Ex. B. p. 37.) The FBI believed that Manna had once led "a particularly violent faction of the Genovese" Family and that his "incarceration should not be viewed as a barrier to any control he may have over other Genovese members or associates." (Pet'r's Mot. Ex. B. p. 38.) Although, in forty pages provided by Petitioner, the FBI Memos contain several instances of the name "DeSciscio," nowhere is Petitioner's name attached explicitly, or implicitly, to the murder plot. After an extensive discussion of Manna, the memo indicates that the government would review Petitioner's telephone records, recordings, visitor's lists, and correspondence records. (Id. at 38.)
The memo later states: "Newark [FBI] has made appropriate notifications to USMS, Newark, captioned victims, and Chief USDC Judge Newark." (Id.) The FBI Memos do not indicate what constitutes an "appropriate notification." (Id.; Pet'r's Mot. Ex. A.)
On January 11, 2008, Petitioner filed a pro se Motion for Relief, pursuant to FED. R. CIV. P. 60(b), to reconsider the denial of Petitioner's Motion to Vacate Conviction, pursuant to Section 2255, and/or reconsider Petitioner's sentencing. On February 4, 2009, the Government answered.
II. DISCUSSION
Petitioner seeks a hearing to consider his claims, under Rules 60(b)(3) and 60(b)(6), that he was denied due process, both during his sentencing and when his 1997 petition to vacate his sentence, pursuant to Section 2255, was dismissed.
FED. R. CIV. P. 60(b) provides in part:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:…
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party… or,
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). Where "the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier Section 2255 judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits." Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). "However, when the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition." Id.
To the extent Petitioner challenges the procedures of both his sentencing and his Section 2255 proceedings, this Court shall interpret this motion under Rule 60(b).
This Court need not review any direct challenges to the legitimacy of Petitioner's conviction or sentencing as the Third Circuit has not granted him leave to file a second or successive Section 2255 petition. See In re Olabode, 325 F.3d 166, 169 (3d Cir. 2003).
A. Timeliness
"A motion for relief under Rule 60(b) is directed to the sound discretion of the trial court." Pierce Assoc., Inc. v. Nemours Foundation, 865 F.2d 530, 548 (3d Cir. 1988). However, Rule 60(b) limits the time within which the motion must be filed. Generally, a movant must file within a "reasonable time" from the date of the decision to be vacated. However, a motion for reason three (3) of Rule 60(b) may be filed "no more than a year after the entry of the judgment or order or the date of the proceeding." FED. R. CIV. P. 60(b). A "reasonable time" to move to vacate a judgment under Rule 60(b) is based on the circumstances of the individual case. Delzona Corp. v. Sacks, 265 F.2d 157, 159 (3d Cir. 1959). For example, where the information regarding the grounds for the motion was available for "almost two years" prior to the filing of the Rule 60(b) motion, the motion was not timely filed. Moolenaar v. Government of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987); see also Kamara v. Attorney General of U.S., 206 F. App'x 189, 191 (3d Cir. 2006) (holding 20 month delay not within a "reasonable time").
Under certain circumstances, the principles of equitable tolling will allow the court to extend these limitations, but the doctrine does not extend to "garden variety claim[s] of excusable neglect." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). Here, Petitioner does not argue excusable neglect; thus, he is entitled to no equitable tolling.
This Court finds that Petitioner's Rule 60(b) motion is filed untimely. In the instant case, Petitioner filed his Rule 60(b) motion nearly twenty years after his sentencing and twelve years following the denial of his Section 2255 petition. In an apparent effort to circumvent the untimeliness of this motion, Petitioner claims he did not discover the evidence regarding the alleged ex-parte communications between the FBI and Judge Barry until January 2, 2008. (Pet'r's Mot. ¶ 12.) This claim is not supported by the record.
In May 2007, Petitioner sought leave from the Third Circuit to file a second Section 2255 petition. In that motion, Petitioner incorporated the arguments raised in Manna's pleadings before Judge Debevoise regarding similar Rule 60(b) claims. Judge Debevoise's decision,*fn3 dated October 25, 2006, which denied Manna's Rule 60(b) motion, outlined Manna's allegations of exparte governmentalcommunications with Judge Barry, and extensively quoted the FBI Memos. These allegations, which are based on the same facts as Petitioner's current claims, are largely identical to those raised by Petitioner's current argument. This information leads this Court to conclude that Petitioner knew of the information contained within the FBI Memos long before he submitted this Rule 60(b) motion.
Since it appears from Petitioner's submissions to the Court of Appeals thatPetitioner was aware of the FBI Memos at the latest in May 2007, and possibly as early as September 2005, this Court concludes that Petitioner delayed his filing and the motion was not made within a "reasonable time." Therefore, this Rule 60(b) motion is denied because it was filed in an untimely manner.
B. The Merits
Even if Petitioner's motion were filed in a timely manner, this Court would deny the motion on the merits. A movant under Rule 60(b) must "show 'extraordinary circumstances' justifying reopening of the final judgment." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). "Such circumstances will rarely arise in the habeas context." Id.
Petitioner fails to make any argument that might merit further review of the procedures of Petitioner's sentencing or the denial of his Section 2255 petition. Petitioner's argument appears to be that he should have been afforded the opportunity to move for Judge Barry's recusal after she was allegedly informed of a plot to murder her. Since Petitioner alleges that Judge Barry learned of the murder plot before his sentencing, he believes the procedures for both that proceeding and the review of his Section 2255 petition were tainted.*fn4
Petitioner has offered little evidence to support his claim that Judge Barry received any information alleging Petitioner's involvement in the murder plot. While the FBI Memos Petitioner provides here do discuss a murder plot against Judge Barry, they address a plot orchestrated by Manna. The only discussion of Petitioner in the memoranda is as a co-defendant at trial and an individual whose communications should be monitored based solely on his connection to Manna. (Pet'r's Br. Ex. B (Docket Entry No. 1-2 p. 38).) Discussing the risk of the alleged threat, the FBI reported, "Manna's reputation and evidence presented at his trial indicate that he is more than capable of ordering the execution of others." (Pet'r's Mot. Ex. B. p. 37.) The FBI, in a separate memo, went on to discuss Manna's continued ability to utilize the Genovese organization for violent acts, noting, "Manna's incarceration should not be viewed as a barrier to any control he may have over other Genovese members or associates." (Pet'r's Mot. Ex. B. p. 38.) These documents demonstrate the FBI's singular interest in Manna as the source of the potential threat to Judge Barry, and do not support Petitioner's assertion that the FBI believed him to be part of the murder plot.
The record fails to support any reasonable inference that Judge Barry was told about Petitioner being involved in the plot. The memos simply report that "appropriate notifications" were made to Judge Barry. (Pet'r's Mot. Ex. B. p. 38.) Any number of notifications could have been appropriate, including a warning of generalized threats from prisoners. Petitioner's inference that this language indicates Judge Barry was informed that Petitioner was part of a plot to kill her is baseless.
This Court finds that there is no basis to support Petitioner's claim that ex-parte communications between the FBI and Judge Barry tainted his sentencing and the review of his Section 2255 petition. Petitioner has failed to state any "extraordinary circumstances" that would merit vacation of either his sentencing or Section 2255 proceedings.
III. Conclusion
For the reasons set forth above, this Court finds that Petitioner's Rule 60(b) motion is untimely and, and even if it were timely, it is without merit. Petitioner's motion is denied.
JOSEPH A. GREENAWAY, JR., U.S.D.J.
Opinion Footnotes
*fn1 A Section 2255 petition allows:
[a] prisoner in custody under sentence of a court established by Act of Congress [to] claim[] the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States… [and to] move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255.
*fn2 Petitioner was tried and convicted before Judge Maryanne Trump Barry in 1989. She sentenced him on September 26, 1989. Judge Barry denied Petitioner's Section 2255 motion on September 9, 1997.
*fn3 The Court of Appeals affirmed Judge Debevoise's denial of Manna's Rule 60(b) motion. Manna v. United States, No. 06-4788, slip op. (3d Cir. June 28, 2007).
*fn4 Assuming, arguendo, that Judge Barry received information of the alleged murder plot by Manna, she would not have been required to recuse herself. See United States v. Dalfonso, 707 F.2d 757, 761 (3d Cir. 1983) (recusal unnecessary where a third party, or even the accused, makes unsubstantiated claims of "improper inducement"); see also In re Basciano, 542 F.3d 950, 956 (2d Cir. 2008) ("Although a plot or threat, real or feigned, may create a situation in which a judge must recuse himself, recusal is not ordinarily or routinely required.").
Bobby MannaJohn GottiRichard DeSciscio
Blavat has allowed Memories to be used as a regular meeting place and hangout for the Scarfo family.
Philadelphia disc jockey Gerald "Jerry" Blavat is an organized crime sycophant who, despite his nefarious associations, has been able to get and keep a liquor license in Margate, Atlantic County. In his disc jockey patter, Blavat calls himself "the Geator with the heater" and "the boss with the hot sauce."
Blavat has openly associated with members of the Bruno/Scarfo family for two decades and, in fact, even served as a driver for Philadelphia crime boss Angelo Bruno on occasion. According to former mob capo Thomas DelGiorno, Blavat is a close friend of whoever happens to be the boss of the Bruno/Scarfo family at any given time.
Although he is generally unknown outside the Delaware Valley area, Blavat has wide contacts in the entertainment world. Because of these contacts, as well as his friends in organized crime, he can open many doors in various walks of life.
Since 1974, Blavat has been the owner of record of a restaurant and night club in Margate called Memories where he frequently performs his disc jockey show playing "oldies" records. He also appears at other clubs in southern New Jersey and Pennsylvania. The financial arrangements for his appearances at the three other New Jersey clubs violated ABC regulations because he received all or a portion of cover charges in cash as well as a percentage of liquor sales. Such funds were not recorded on the books of the licensees either as income or payments. While the licensees were disciplined by the ABC, Blavat himself was never cited because its regulations do not apply to entertainers.
Blavat has allowed Memories to be used as a regular meeting place and hangout for the Scarfo family, contrary to ABC regulations. According to Thomas DelGiorno, in 1984 he had been assigned by boss Nicodemo Scarfo to murder crime family member Salvatore Testa but was having trouble setting him up for the kill. DelGiorno testified that because Memories was the only place Testa visited regularly and appeared to be relaxed, he asked Scarfo if he could commit the murder there. But he said Scarfo told him not to do it. Scarfo told him, " 'I use that. I go in there all the time. I meet guys in there. I don't want to ruin the joint.' "
In a statement submitted to the Commission at the public hearing, New Jersey State Police Superintendent Justin J. Dintino, a nationally recognized expert on organized crime, said of Blavat:
Blavat was an associate to, and a chauffeur for, the late Philadelphia crime boss Angelo Bruno. He has also been identified as an associate to Nicodemo Scarfo. Throughout has professional career, Blavat has openly associated with members and associates of the Bruno/Scarfo family, including John Martorano, the late Frankie "Flowers" D'Alfonso, Joseph Merlino, Salvatore Merlino and Tyrone DeNittis.
Although Blavat has no criminal record, Commission Special Agent Grant F. Cuzzupe cited in detail his long association with organized crime figures, which has been extensively documented by surveillances of numerous law enforcement agencies over many years. This documentation leaves the Commission with no doubt that Blavat truly is connected to the Bruno/Scarfo crime family.
When subpoenaed to appear at a private Commission hearing, Blavat answered questions pertaining to his show business career and his licensed premises, Memories, but he invoked his Fifth Amendment privilege on questions regarding his organized crime affiliations. And when he appeared under subpoena at the public hearing, Blavat refused to answer all questions.
The testimony of Agent Cuzzupe established that Memories has been frequented by members and associates of the Bruno/Scarfo organized crime group, including Nicodemo Scarfo, Larry Merlino and Phillip Leonetti, and that the sons of Scarfo and Merlino were arrested on the premises "after a violent altercation." DelGiorno confirmed that testimony:
Q. Did you ever go [to Memories]?
A. Yes, I did.
Q. Did you ever meet other members or associates of the Philadelphia family there?
A. We all hanged out there in the summer. We always went there, everybody, you know, everybody that had a place down the shore or everybody came down the shore. At one time during the weekend we'd stop over there to have a drink.
Q. Did you ever pay for your meals or drinks there?
A. No, not very often.
DelGiorno also described Blavat's longstanding affiliation with the Bruno/Scarfo family and his close ties to its leaders:
Q. How long have you known [Blavat]?
A. I've known him a lot of years, off and on.
Q. Is Blavat an associate in the Philadelphia family?
A. Blavat was a friend of — started out from what I know of him — I met him when I was a kid. Then he surfaced again as a friend of Angelo Bruno's, yes.
Q. Was he also a friend of Nicky Scarfo's?
A. Later on, yeah, not at the — well he — he made — Blavat made friends as they came along. Like, if Angelo Bruno was the boss, he was Blavat's friend. Scarfo was the boss, Phil Testa was the boss, he was Blavat'sfriend. Scarfo became the boss, he was Blavat's friend. If one of these guys [pointing to the members of the Commission] becomes the boss, he'll be Blavat's friend.
Later in his testimony, DelGiorno elaborated on Blavat's lengthy history with the family:
Q. How far back does Blavat's association with the Philadelphia mob go?
A. Like I said I — I know of it going back to when Angelo was living. He used to hang out with Angelo.
Q. Was Blavat Bruno's driver at times?
A. Oh, yeah, drove him around a lot, you know.
Q. During when?
A. During the early and middle 70s and late 70s.
Sworn testimony in other forums from ex-Bruno/ Scarfo members Philip Leonetti and Larry Merlino help substantiate Blavat's relationship with this group. Leonetti, who was the family underboss prior to his incarceration, stated that Blavat paid $500 per week to Scarfo from the proceeds of Memories in exchange for protection from unionization. And Merlino confirmed that Local 54 of the bartenders union was kept out of Memories at Scarfo's behest. DelGiorno corroborated Leonetti's statements regarding the $500 tribute that Blavat paid to Scarfo.
In 1987, the New Jersey Division of Criminal Justice filed a civil lawsuit against Blavat, alleging that he acted as a "front" in the purchase of the mentioned yacht for Nicodemo Scarfo. The suit alleged that proceeds generated by the Scarfo crime group's criminal enterprises were used to purchase the vessel. During the public hearing, DelGiorno testified regarding the yacht purchase as well as Blavat's bogus rental of Scarfo's Florida home:
Q. Did Blavat assist Nicky Scarfo by acting as a front for him in the purchase of a yacht?
A. Yes, he did. He had —
Q. Let me ask you first, why did Scarfo select Blavat for that?
A. Well, he was the most legitimate-looking guy at the time from — you know, from a banker's point of view and for that — you know, for the purpose of the loan he seemed the most legitimate-looking guy….
Q. And would you explain exactly how Blavat asisted Scarfo in the purchase?
A. Well, from the — from the understanding that I got from Scarfo, he just put the — went out and bought the boat and Scarfo gave him whatever down money that he needed and I think there was a mortgage on — mortgage of 800 or 850 a month and Jerry would write a check every month and pay that and Scarfo would reimburse him the money. I also think
and I'm not positive about this, but I think that he had told me one time that [Blavat] wrote that off on Memories as a — as a business deal….
Q. Did Blavat also assist Scarfo in a similar fashion with Scarfo's purchase of a vacation home in Fort Lauderdale, Florida?
A. Yes…. This was explained to me by Scarfo and his attorney, Bob Simone, that Scarfo had purchased this home in Fort Lauderdale and the way that he did it was to put so much money down and then form a corporation that was supposed to be leasing this home to individuals as a vacation spot, and he had around three or four guys — that he had them sign a lease for like three or four months a year. I think that they were pretending that they were paying 3500 a month rent, and what they would do is come down to give Scarfo the 30 — well, they would give Scarfo a check for 3500 and he would reimburse them by giving them the cash and Blavat was part of it.
Q. Do you recall who any of the others were?
A. One was Bobby Stone and two other guys. I think — I really don't remember the other two names. I think he had four of them that were doing three months apiece.
Q. Did Blavat ever actually visit the Fort Lauderdale home to make it appear as though he was renting it?
A. Oh, yes, That's — that's why it's — that's how the story came about of how he explained it to me that — I had been — it had been explained to me how he purchased the home but never with — who was actually, you know, pretending they were leasing it but one— one weekend we went down there and it was on a Sunday and we had — we were all in his house and Spiker or one of them was making spaghetti and meatballs, and he said that Blavat was coming and Blavat came into the place around ten o'clock or something, ten-thirty that morning, eleven o'clock. He came in, said hello to everybody. He went over — he went, sat down with Scarfo for a little bit talking to him. He went and he ate a meatball sandwich, came back to the table and said good-bye, so when he was leaving I asked Nicky, I said, "Where is he going?" He said, "Back to Philly," so I said, "Wait a minute. You mean to tell me this guy flew to Florida to eat a meatball sandwich?" He said, "No, no, no. He comes here because he's one of the guys that leases the house and he thinks that because he shows up that the surveillance will pick him up and if they ever ask him if he's really leasing he could say 'yeah'."
Scarfo's house and boat both have been repossessed by the bank. * * *
As an entertainer Blavat has used a variety of locations to generate cash through his corporation called "Celebrity Showcase." In private hearing testimony, Blavat described this entity as the one "that handles Jerry Blavat, the entertainer. Celebrity Showcase is the corporation that books Jerry Blavat, and is paid, and then Celebrity Showcase pays Jerry Blavat a salary for his performance."
But the benefits from these arrangements go beyond the simple collection of a paycheck. Blavat and his employees literally take over an establishment when he is there. To a large degree, he has been able to violate ABC regulations with impunity. For example, Blavat used now deceased Bruno/Scarfo soldier Samuel Scafidi as an overseer or floor manager during his shows at various locations. He also employed Scafidi's son-in-law, John Hansen, as his head doorman. Because both men have criminal records, they are disqualified from working in licensed premises.
The Commission's investigation determined that Blavat was booked on a continuing basis in some southern New Jersey licensed establishments, including the Ivystone Inn, later called the Betsy Ross Inn in Pennsauken during the late 1970s and much of the 1980s; Bubba's in Pennsville in January, 1986; and Degenhardt Caterers in Mt. Ephraim from 1987 through 1989. Blavat's performances at the Betsy Ross Inn were purportedly arranged through Bruno/ Scarfo associates Tyrone DiNittis and Carl Botzenhardt.
At some of these locations, the program was billed as "Jerry Blavat's Memories West." The lounge area at Degenhardt's was even remodeled after Memories in Margate. Blavat testified in private hearing that he was paid "X amount of dollars plus the door" for the use of his name, likeness and performance at these various establishments. Confirming this, William Degenhardt, president of Degenhardt Caterers, testified that Blavat was paid $650 per night plus all proceeds from customer admission fees.
According to ABC Senior Inspector John Schmidt, who participated in surveillances as part of an Enforcement Bureau investigation of Degenhardt's from January, 1988, to March, 1989, Blavat and his employees ran the lounge portion of Degenhardt's and collected the proceeds from the cover charge. That revenue was not tallied in a cash register; nor was there any accounting for the amount of cash being collected. This money was turned over directly to Blavat, a practice that also violates ABC regulations. When Schmidt interviewed Blavat and Degenhardt, he asked what was done with these funds. Schmidt related their responses to the Commission:
Q. What statements did each of them make with respect to what was done with the moneys collected as the cover charge?
A. They both stated that the money collected as a cover charge was to go to Jerry Blavat, the entire amount. Mr. Blavat stated that he used that money to purchase advertising time from two Philadelphia radio stations and that was also what Bill Degenhardt stated that was told to him by Blavat.
Q. Do ABC regulations allow for money to be taken on licensed premises and not be processed through the licensee?
A. No, they don't.
Schmidt verified through his investigation that Degenhardt's was not maintaining true books of account pertaining to the cover charges. Blavat and Degenhardt admitted to Inspector Schmidt that they had agreed that Blavat would receive a percentage of liquor sales on nights that he appeared at the lounge, in violation of ABC regulations. He said:
It would make Jerry Blavat basically holding a beneficial interest in that license and that his compensation was based on the amount of sales conducted. It was over and above any reasonable salary paid to an entertainer.
Blavat had a similar agreement in 1986 with Bubba's, which is no longer open. The owner and licensee of Bubba's, Joseph Rappa, Jr., testified before the Commission regarding Blavat's appearances at the bar and the collection of a cover charge as well as the payment of a percentage of liquor sales.
These cash transactions enabled Blavat to underreport his earnings. At the public hearing, former Bruno/Scarfo capo Thomas DelGiorno asserted that Blavat boasted to him that this was exactly the case:
Q. Blavat charges an admission fee at the various lounges where he appeared in New Jersey and he also had a cover charge at Memories. Did he ever tell you what he did with that money?
A. Oh, one time I had — let me put it in perspective. One time we had talked to him about not just the admission fee at the door but the conversation was about his whole business in general, meaning these disc jockey shows, and he had told me that that's where he makes most of his money. He sometimes or most of the time gives the door so much money, a little bit of money, and the door has this fee and that he only reported a very small portion of that — of that door at these
when he was the disc jockey and at Memories and at wherever he had the door. That's how he made his money; that, you know, the money they didn't have to show.
Did he tell you what he did with a salary that he would receive from one of the lounges when he received part by check and part by cash?
That's what I meant; that the door would be part of the salary and — whatever he received by check was not — was a small percentage of what he made that night, is what I'm trying to get across. Let's say it was 25 percent and the other 75 percent had come from the door or from whatever else the guy gave him under the table.
The ABC Enforcement Bureau investigation of Degenhardt's Caterers resulted in charges against the license, some of which were related to the business arrangement with Blavat. Degenhardt's was also cited for Blavat's employment of Bruno/Scarfo soldier Sam Scafidi and John Hansen, both of whom were criminally disqualified. Commission surveillances at Degenhardt's corroborated that both Scafidi and Hansen worked on the premises during Blavat's appearances. According to testimony by Joseph Trymbiski, who worked at the Betsy Ross Inn during part of the time period Blavat had his show there, Blavat told him that Sam Scafidi was his "eyes and ears." Blavat himself admitted during the private hearing that he was friendly with and employed Scafidi. Blavat described Scafidi's role as follows:
He just was there — Sam Scafidi was an old guy that had — just an old nice guy that hung around. I got guys that come to the clubs and hang and follow Jerry Blavat for 25 years that just like to be a part of that, and Sam was one of those guys that was — he was like a second father.
Q. What work did he do for Celebrity Showcase?
A. Really, just watched out for my interest to make sure that nobody was doing anything, cheating or anything like that.
Q. Can you give me some concrete examples of that?
A. He just was around me, that's all.
Q. Was he on the payroll of Celebrity Showcase?
A. I think he was, yes.
Q. Specifically, what were his duties?
A. He'd be at the club to watch, see what I was doing, and watch to see that there was no problems at the club.
Q. How much was he paid?
A. That you'd have to check with the bookkeeper. I don't want to give you the right price because I may be wrong. Celebrity Showcase, they would have that.
Q. Can you give us an example of a problem that he handled for you?
A. Well, he made sure that nobody was cheating, you know.
Q. Such as who?
A. Well, he'd watch out, he'd say to me — let me give you an example. If a club is in my name, Jerry Blavat's Memories, even though I don't own it, it's got my name, and I want to make sure that because it's my name, the people who come there are not — somebody is not cheating them with drinks and things like that, so he was almost like a friend and manager type who watched — he traveled with me. It was that simple.
Degenhardt's made no attempt to obtain background information on Blavat's employees, according to Inspector Schmidt.
DelGiorno verified Sam Scafidi's membership in the Bruno/Scarfo LCN. However, according to DelGiorno, Scafidi's employment with Blavat as a doorman was at Scarfo's direction rather than as a result of any lifelong friendship with Blavat.
Q. Do you know whether Blavat ever employed any family members at either Memories or any of the lounges where he appeared?
A. He had Sam Scafidi working for him awhile.
Q. And Scafidi was a made member?
A. Yes, he was. I think he was from the Vineland area.
Q. How did it come about that Blavat employed Scafidi?
A. Scarfo told him to employ him, give him a job, you know.
Q. What was Scafidi's function for Blavat?
A. I think he was a doorman more or less, you know, collecting money at the door and,you know — they had a lot of kids that went into that bar, you know. If there way any trouble he'd break the fights up and stuff like that.
The strength of the ABC Enforcement Bureau's case against Degenhardt's resulted in a non vultplea and a $1,000 fine, a penalty Inspector Schmid said he considered light.
Just as a comparative example, another establishment in the area, that business was— I would say it was considerably smaller and did considerably less business that Degenhardt, was charged with one count of employing a disqualified person along with a couple of other minor charges and they were fined approximately $8,000 eventually.
During the public hearing, Commissioner Barry
H. Evenchick asked Agent Cuzzupe if action had been taken by any governmental agency to revoke Jerry Blavat's liquor license.
Q. Agent Cuzzupe, are you aware of whether any governmental agencies of our State have made efforts to revoke Mr. Blavat's license as a result of the information about which you have testified today?
A. There has not been an effort at the local level. There have been investigations of Mr. Blavat in the past that resulted in penalties; however, the complete — the complete affiliation that he has had with organized crime had not been addressed by any agency.
Subsequent to the ABC investigation, Blavat and Degenhardt's terminated their business relationship by mutual agreement. Blavat, however, continues to own and operate Memories in Margate and perform his oldies show throughout the region. In fact, although the Commission's public hearing was in February and Margate officials were sent detailed information about the hearing, the city nevertheless renewed Blavat's liquor license on July 1.
Angelo Bruno.Carl BotzenhardtFrankie D'AlfonsoJohn MartoranoJoseph MerlinoNicodemo ScarfoPhillip LeonettiSalvatore MerlinoSalvatore TestaSam ScafidiThomas DelGiornoTyrone DeNittis
UNITED STATES v. MUSTO
UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY
UNITED STATES of America, Plaintiff,
William V. MUSTO, Frank Scarafile, John J. Powers, Thomas Principe, Lawrence Dentico, Dominick D'Agostino, Gildo Aimone, Anthony Genovese and John Bertoli, Defendants
W. Hunt Dumont, U. S. Atty. by Maryanne T. Desmond, First Asst. U. S. Atty., Samuel Rosenthal, James Plaisted, Mark Malone, Richard Friedman, Asst. U. S. Attys., Newark, N. J., for plaintiff. , Irving Anolik, New York City, for defendant William V. Musto. , Dennis McAlevy, Hoboken, N. J., for defendant Frank Scarafile. , Shain, Hayden, Perle, Rafanello, Schaffer & Irish by Joseph Hayden, Newark, N. J., for defendant John J. Powers. , Thomas Ford, Millburn, N. J., for defendant Lawrence Dentico. , Podvey & Sachs by Alan Silber, Newark, N. J., for defendant Dominick D'Agostino. , Sills, Beck, Cummis, Radin & Tischman by Robert Baime, Newark, N. J., for defendant Gildo Aimone. , Flood & Basile by Raymond Flood, Hackensack, N. J., for defendant Anthony Genovese. , Robinson, Wayne & Greenberg by Jack Arseneault, Newark, N. J., for defendant John Bertoli.
The opinion of the court was delivered by: SAROKIN
Defendants, alleging that various errors were committed at trial with respect to the jury's deliberations and verdict, seek a judgment of acquittal or a new trial, and hearings of one or more jurors.
The trial of this matter lasted approximately five months. The complex, 46-count indictment, charged defendants with conspiracy to violate the RICO statute, tax fraud, mail fraud, and wire fraud. Throughout the trial, and despite the unanticipated length of the proceedings, the jury listened attentively to witnesses and displayed unflagging interest in the proceedings. On March 22, 1982, the jury began its deliberations. Two days later, the court received a message from the Marshals that one of the jurors, Mrs. Steidl, was upset. This message was communicated to counsel by the court:
Gentlemen, as I informed you off the record I have received a message from the Marshals that Mrs. Steidl is very upset. She had been crying, she claims that she has never been away from her husband before, and the general indication that I have received is that she has some doubts as to her ability to continue to serve and to participate in the deliberations.
Under the circumstances it is my suggestion that I meet with her informally, off the record, if I have your consent to do that, first of all to find out what the problem is, report back to you as to what it is that she tells me and then if necessary we will put something on the record, if you think that is appropriate, but my feeling is that I will do much better with her if I can discuss the matter with her without a Court Reporter being present and see what the problem is, but I only will do that if you all consent.
If you want a Court Reporter there I will do that as well.
My suggestion is we start informally before we put ourselves in the position from where there is no retreat.
All counsel agreed that the court should informally interview Mrs. Steidl. A message requesting the interview was then sent to the jury with instructions that further deliberations were to cease until notification to resume was given by the court.
The court's conversation with Mrs. Steidl was held in chambers and lasted for only a few minutes. The substance of the conversation was immediately reported to counsel:
THE COURT: Gentlemen, here is what I gleaned from my conversation with Mrs. Steidl:
First of all, I want you to know that when I began talking to her I instructed explicitly to her that she was not to reveal to me anything that had taken place during the deliberations. She indicated to me that the first night she was very upset because she was away from her husband.
Last night she indicated that in addition she was hysterical because of the pressure of the deliberations. Apparently the foreperson had insisted that the jurors support their views and indicated that they should do so before going to dinner last night.
Apparently that direction upset her very much. She said that that pressure is making her sick and she does not think that she can continue to serve as a juror.
After the court related the details of its discussion with Mrs. Steidl to counsel, there was argument over what should be done next. There were suggestions to interview the foreman, to reinstruct the jurors that each of them must vote their own conscience, to allow Mrs. Steidl to meet with her husband, and to interview Mrs. Steidl again to see whether the proposed meeting with her husband would ameliorate the problems which she was having. Defense counsel urged that the court's first obligation was to have another conversation with Mrs. Steidl:
MR. HAYDEN: I submit that you need at the very least another meeting with Mrs. Steidl.
MR. BAIME: And the foreperson.
MR. HAYDEN: Call her down, explain to her your rationale as to why you are not going to excuse her, explain to her if she has to see her husband, if it were important enough-I don't think giving her the-
THE COURT: I'll do it but I don't want to do it formally.
MR. HAYDEN: Doesn't have to be on the record.
MR. FORD: I can't urge more strongly it be done informally.
The court held another informal meeting with Mrs. Steidl at the urging of and with the consent of counsel. The meeting lasted for only a few minutes and its details were immediately disclosed to counsel in open court:
THE COURT: Gentlemen, I had a second conversation with Mrs. Steidl. The situation has deteriorated rather than improved.
I told her that we would make arrangements to bring her husband down if she wanted, that I would bring the foreperson in and have a chat with him as to his functions and I read to her the portion of the charge which I said I would consider reading to the jury as a whole and to the foreman, and she said to me that she does not wish to continue under any circumstances.
An attorney for the defense then asked the court for time to caucus with co-counsel. The court, granting the request, stated: "I would suggest, gentlemen, there are three choices: One is to go with a jury of eleven, one is to make use of one of the four alternates who are here, and the third I do not wish to speak aloud."
After counsel met, they jointly proposed that the court should excuse Mrs. Steidl and the foreman and substitute two of the alternate jurors. Alternatively, they asked for a 24-hour adjournment to determine whether their clients were financially able to move for a mistrial. Argument ensued, with the prosecution vigorously opposing a dismissal of the foreman:
MR. PLAISTED: No factual record to justifying going into the jury, plucking out Number 1 (the foreman) and say you are dismissed, no basis for it.
We object. It is inappropriate, no precedent for it.
With respect to Juror Number 9 (Mrs. Steidl), there are in essence two choices, one to tell her to go back and deliberate, or two, substitute another juror in unless defense are willing to have deliberations continue with eleven jurors.
Counsel for one of the defendants responded to the government's argument:
MR. MC ALEVY: I couldn't disagree more with the government.
I think certainly if there is the slightest hint of taint on that jury it should be ferreted out right now, and I don't think there's any question about the fact, just from what your Honor has told us, Juror Number 9, the accusation she made about Number 1, I think it is something that should be inquired into not only by the court but by counsel within that limited area but we should have the limited right because if there is a taint on this jury there would be absolutely no choice except for a mistrial.
Other counsel also urged that a hearing should be held to determine whether the pressure Mrs. Steidl was feeling was due to improper conduct on the part of the foreman. Counsel also advised the court that their willingness to excuse Mrs. Steidl and substitute an alternate was conditioned upon excusing the foreman as well. Counsel were then requested by the court to decide whether they would want Mrs. Steidl excused should the request to dismiss the foreman be denied:
THE COURT: Gentlemen, I think I have fairly conveyed to you Mrs. Steidl's position and her indication based upon two conversations with her that she does not think that she can continue, and therefore, I agree with Mr. Plaisted that I would like to know whether under those circumstances from each defendant, whether they want Mrs. Steidl excused, if they do want her excused I would like to know whether or not they want an alternate substituted, or whether they move for a mistrial.
As of this moment I am rejecting the condition that Mr. Fitzgibbon also be excused, but that does not mean that I won't deal with the problem, if there is one, once we decide on Mrs. Steidl.
I will not accept that as a condition for excusing Mrs. Steidl. I think we have to deal with her separately and resolve it.
Counsel responded by again renewing their request for a hearing to determine whether Mrs. Steidl was being improperly pressured by other jurors. The attorneys were divided, however, on whether she should be excused, and those that favored excusing her refused to agree to substitute an alternate without first having a hearing on the possibility of juror misconduct. None of the attorneys expressed a willingness to proceed with a jury of eleven.
Because counsel were unable to agree upon how to proceed, the court suggested that they meet informally in chambers:
THE COURT: I will suggest that we will be more productive if we meet in my chambers. Let's see if we can't save the five months, the agony, expense to everyone.
The meeting was held but there was still no agreement over how to proceed. However, it was evident to the court that defendants would not consent to a jury of eleven or the substitution of an alternate. Therefore, the retention of Mrs. Steidl as a juror was the only realistic alternative absent a mistrial.
The court, understanding that it had the continuing authorization of counsel, decided to make one final effort to determine if Mrs. Steidl would and could continue to serve. After lunch, the court reported as follows:
THE COURT: Please be seated. Gentlemen, I had a further conversation with Mrs. Steidl.
I indicated to her that it might be necessary for her to continue to serve as a juror and she indicated to me that she would be willing to do so.
I also indicated to her that I would bring the jury down and give them some further instructions. Therefore, I think I have a very simple alternative to give to all counsel and eliminate the numerous variables that we have had so far. Counsel, and I guess this is primarily directed at counsel for defendants, but I will certainly hear from the Government as well, should indicate to me whether they are willing at this stage to consent to substitute an alternate for Mrs. Steidl knowing that it is my present inclination that if they are not willing then I am going to ask her to continue to serve. So I think that simplifies the choice for counsel.
No objection was made to this meeting. In fact, the court was complimented for its decision to ask Mrs. Steidl to continue serving as a juror:
MR. HAYDEN: The court asked us to use some ingenuity and it looks like the ingenuity came from the bench.
The court then read to counsel the instruction that it proposed giving to the jury and granted defendants' request for time to caucus to discuss the new development.
After a brief recess, court resumed. The court asked Mr. Hayden, the attorney for defendant Powers, whether agreement had been reached upon how to proceed. Mr. Hayden revealed that counsel were divided:
MR. HAYDEN: There is not an entire consensus. I think there are two views which I will articulate for at least five or six of the counsel.
Your Honor, on the basis of what the court indicated its conversation was with Mrs. Steidl and the fact that she now feels that she could be a fair and impartial juror, she would not be intimidated, we would have-I will withdraw my motion to dismiss her as a juror subject to the Court giving a strong charge to the jury as to the right of each juror to listen and discuss with each other but to vote their conscience, and more importantly, subject to the Court giving a strong charge, in effect telling the foreman that he is not in any preferred status to anybody else, he must listen and have some respect for the dignity of each juror, he has no right to brow-beat, intimidate, harass anybody else, and among other things, that he cannot require people to marshal the evidence, in effect give a summation, because again the constitutional right to trial by jury is a right to a jury from a cross-section of the community, which means some people are more articulate than others, some people-
Two other defense attorneys, Mr. Arseneault and Mr. Baime, agreed with Mr. Hayden that Mrs. Steidl, who had been sequestered from the remainder of the jury since the court's first conversation with her, should continue to serve as a juror and that a strong instruction should be given to the jury before it resumed deliberations. Mr. Flood, attorney for defendant Genovese, took another position:
MR. FLOOD: I have some problem with her remaining as a juror but this in no way means I would consent to there being an alternate juror.
Mr. Silber, attorney for defendant D'Agostino, took yet another position:
MR. SILBER: Two positions to put on the record:
First, I would move for a mistrial at this time based on two things: first, I do not believe the Court has the power to substitute an alternate without consent and I would not consent, and secondly, based on the position Mrs. Steidl took this morning, the conversations which were related to us by the Court, and I want to make it clear that I in no way object to the procedure employed, I adopt and support the procedure employed, that the fact that she has been isolated, she has not been in the jury room, and at two o'clock in the jury room we had eleven jurors all together who were instructed not to deliberate, but this raises a question in my mind as to whether all those circumstances being attendant I have sufficient concerns to move for a mistrial at this time.
Mr. Silber later stated that if the court were unwilling to grant his motion for a mistrial, then he would rather have Mrs. Steidl continue as a juror than have her replaced by an alternate. Mr. Flood and Mr. Ford concurred with this position.
Mr. McAlevy, attorney for defendant Scarafile, differed with the positions taken by other defense counsel:
MR. MC ALEVY: I wish to have a voir dire of this woman and unless I have that, unless I have it I feel that's a basic right that I have under the circumstances and unless I have that, sir, I certainly will ask for a mistrial, unless I have that right-
Mr. Anolik, attorney for defendant Musto, agreed that a voir dire examination should be conducted of Mrs. Steidl but he did not state that he would move for a mistrial in the absence of such an interview.
The court, confronted with the inconsistent positions of the defense, requested the government to state its position:
MR. PLAISTED: Initially this morning before we did research over the lunch hour we had been opposed to the removal of Mrs. Steidl. We opposed meetings between the foreman and your Honor and further meetings between your Honor and Mrs. Steidl.
Our concern stems from a recognition of the principles that seem to go through the cases, that is, there shouldn't be any interference in the deliberative process of the jury, the jury should control their own deliberations.
Case law is fairly clear about that. It is fairly clear about inquiries, it is clear that one removes a juror only because of outside influence or because a juror can no longer continue to deliberate because of health or other such reasons that prevent the juror from continuing to deliberate.
Over the lunch hour we were looking at cases, one of the cases was, we looked at, was the Gypsum case which, too, reflected an incident after a long trial where the foreman had requested a meeting with the Court and the Court had the consent of all counsel and said, all right, I'll meet with the foreman, and the Court discussed the case with the foreman briefly, and then later the Supreme Court was concerned about that very meeting, even though it happened with the consent of all counsel.
Under the circumstances-and reversed the case, as I understand it.
Under the circumstances that we are now presented where the defense has asked your Honor to meet with Mrs. Steidl but after having done that, after having pushed your Honor into that position now some of defense counsel are taking the position Mrs. Steidl should not be reinserted, she should be stricken, we are in the position where the Government in order-we have no choice but if some counsel object to her being placed back in the jury box we must also object.
We are concerned about that issue on appeal. And so under those circumstances our position is she should not be placed back in the jury box, but rather, an alternate should be placed in.
What counsel have stood before your Honor and said, and all of them did, we would accept an alternate being placed in the box, an alternate so long as two alternates are placed in the box, so long as the foreman is removed, and there is no cause for removing the foreman, there is no cause for an inquiry, that's improper.
What counsel have said for tactical reasons, we will accept inserting a juror but absent those tactical concessions we will not accept inserting a juror, that's not fair.
The Government is getting whip-sawed by the different tactical decisions of counsel. They have now, by trying to induce these inquiries and asking for more and more inquiries into the deliberative process, have put the Court in an untenable position, have put the Government in an untenable position.
The Third Circuit has specifically allowed, and we found the case over the lunch hour as well, Mr. Friedman did, allowed with the consent of counsel the insertion of an alternate juror.
Having heard the positions of all counsel, the court ruled:
Gentlemen, under these circumstances if any of the defendants are of the view that Mrs. Steidl should be removed there is a way to accomplish that without in any way prejudicing the rights of any of the defendants, namely, by making use of the four alternates who are still here, who have been under my instructions and have continued to be under my instructions not to discuss the case with anyone, not to read anything in the newspapers or watch anything on radio or television.
So the defendants have the opportunity if they want to avail themselves of it (by) making use of those alternates.
They have apparently elected not to do that.
I am satisfied based upon my conversation with Mrs. Steidl, although she is upset, that that upset is such that she still feels that she can return to the jury and act as a fair and impartial juror.
I think I owe to all counsel in this case to conduct a voir dire just as to that.
I have no intention of asking her what has been going on in the jury deliberations, but I think it is appropriate for me to bring her out here and ask her in your presence whether based upon all of the circumstances she feels she can resume her role as a juror and act as a fair and impartial juror.
Any objections?
MR. ANOLIK: Yes, not out here.
MR. HAYDEN: How about in the Court's chambers on the record?
The court granted Mr. Hayden's request and conducted the following voir dire examination in chambers:
THE COURT: Now, Mrs. Steidl, you and I have had some conversations today; is that correct?
MRS. STEIDL: Yes.
THE COURT: Now, I have asked counsel to come and meet with you and with me in chambers because we are interested in knowing whether you can continue to operate and function as a juror in this case.
One question I want you to answer is do you feel despite anything that has happened so far that you can continue to be an effective and fair and impartial juror in this case and decide the case in accordance with my instructions?
THE COURT: Gentlemen, let's go back into the courtroom and we will bring the jury and we will get back to our work.
MRS. STEIDL: I most humbly apologize.
THE COURT: That's all right. It is an emotional experience for everybody.
Court resumed shortly after the voir dire examination was completed. Each of the defendants confirmed that they had waived their right to be present during the interview with Mrs. Steidl. The jury was then brought into the courtroom and the following instruction was given with the consent and agreement of all counsel:
THE COURT: Ladies and gentlemen, I apologize for keeping you waiting but during the course of the trial I know you have become used to that.
I am informed that one or more of the jurors have expressed some displeasure with the conduct of the deliberations and believe that undue or unfair pressure *fn1" may have been brought to bear upon you. I must say to all of you that in a case of this length, size and complexity, one would expect that there would be lively and even heated discussion over the evidence and the issues presented.
I wish to remind you and emphasize that each juror is free to express or not to express him or herself on any of the issues that were presented. That is the very nature of the process.
This is a serious matter and serious discussion will undoubtedly affect each and every one of you, possibly even emotionally. That's to be expected. The foreperson whom you have chosen acts as the chair of your deliberations but as I am sure you all know, I'm sure that he knows his views are equal to each of yours and are entitled to no greater weight.
As you undoubtedly know by now I met with Mrs. Steidl this morning and the only instruction that I gave to her is the previous instruction which I gave each of you which I will now repeat, since it seems to bear on whatever the present situation is.
With respect to your verdict, the verdict must represent the considered judgment of each juror. In order to return a verdict in this matter it is necessary that each juror agree thereto.
Your verdict must be unanimous as to each defendant and each count.
It is your duty as jurors to consult with one another and to deliberate with a view to reach agreement if you can do so without doing violence to your individual judgments.
Each of you must decide the case for him or herself but do so only after an impartial consideration of the evidence in the case with your fellow jurors.
In the course of your deliberations do not hesitate to reconsider your own views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
Remember at all times that you are not partisans, you are Judges, the Judges of the facts, and your sole interest is to seek the truth from the evidence in this case.
Now, ladies and gentlemen, I would very much appreciate it if you would resume your deliberations in the proper spirit (with) these instructions in mind. I repeat again that the Court and counsel and the parties certainly expect that there will be extensive discussions and that those discussions should be in the appropriate spirit in accordance with these instructions.
So I would request now that the jury return and resume deliberations. Thank you very much.
The jury resumed its deliberations at 2:55 p.m. and retired for the evening at 6:00 p.m. Early the next morning, the jury returned to the courthouse to continue its deliberations. The deliberations continued through the day. Then, at 2:55 p.m., the court received a communication from the jury which was read in open court:
THE COURT: We have received the following communication from the jury:
"We are hopelessly deadlocked," signed by the foreperson.
I advised both defendants and the Government informally of this note and suggested that everyone discuss it, and I am open to suggestions.
I have some of my own but I would like to hear from counsel first.
Counsel then responded:
MR. HAYDEN: On behalf of all counsel we move for a mistrial.
MR. PLAISTED: The Government objects and asks that the jury be sent back to deliberate further. Obviously this case took a great deal of time. This jury has deliberated a very short time if you take out all of the recesses and time for testimony and the other things and we would ask that the jury be sent back to deliberate.
The court denied defendants' motion for a mistrial and read to counsel its proposed instruction to the jury. Argument ensued over the wording of the instruction. After amendments to the language were agreed upon by all counsel, the jury was brought into the courtroom and the following was read to them:
THE COURT: Ladies and gentlemen of the jury, we have received your note which reads as follows:
"We are hopelessly deadlocked."
I wish to remind you that this case has been conducted over a very lengthy period. So far as your deliberations are concerned, you deliberated a half day on Monday and approximately a half day on Tuesday because of the reading of the testimony of Mr. Christopher, yesterday no more than three hours were spent on deliberations, from about three o'clock to six o'clock, and I received your note approximately at three o'clock today, which means-I don't know whether you continued your deliberations during lunch, but that you could not have had deliberations more than five or six hours today. That means since you have commenced your deliberations there have been only a total of between sixteen to eighteen hours, approximately two days.
Under the circumstances, ladies and gentlemen, I'm going to request that you resume and continue your deliberations. The jury is excused.
The jury continued its deliberations until 6:00 p.m. and then adjourned for the evening. Deliberations resumed at 9:00 a.m. of the next morning, March 26, and continued through the day. The jury had breakfast in the morning, a snack of coffee and pastries, lunch in the afternoon, and coffee in the late afternoon. Throughout this time the jury sent no messages to the court. Then, at 6:37 p.m. the jury sent a note to the court asking for clarification of the evidence on one of the charges. After discussions with counsel, the court responded to the inquiry and ordered the jury to return to the jury room to continue deliberations.
At 6:52 p.m. the jury returned its verdict. At the court's request, the foreman rose to his feet and announced the jury's decision. All eight defendants were found guilty of the crimes alleged in the first count of the indictment. As the verdict on the first count was read, there was a tremendous outpouring of emotion. Mrs. Musto, the wife of one of the defendants, rose to her feet and broke into tears. As the foreman continued to read the verdict, she clutched at her husband over the railing that divides the courtroom and continued to weep. Several of the female jurors, observing Mrs. Musto's reaction to the verdict, then began to cry themselves. The prosecutor asked that the proceedings be delayed until Mrs. Musto had a chance to regain her composure. Several relatives attempted to remove Mrs. Musto from the courtroom but she reacted by tightening her embrace of her husband and by continuing to cry hysterically. The jury found that the defendants were guilty as charged in 36 counts of the indictment. Defendants were acquitted of 9 counts against them. One count had been voluntarily dismissed earlier. On every count of the indictment where the jury returned a verdict of guilty, all defendants charged in that count were found guilty. Similarly, on every count where the jury acquitted one defendant, all defendants charged in that count were acquitted.
After the foreman completed delivering the lengthy verdict, counsel for the defense moved to have the jury polled. No request was made at that time for a poll on individual counts. The court granted their request:
THE COURT: Ladies and gentlemen of the jury, there has been a request to poll the jurors individually. You have heard the foreman announce the unanimous jury verdict. Mr. Meisner will call out your name. If you agree with the verdict as announced by your foreperson you should say "yes'. If you disagree with the verdict as announced by the foreperson you should say "no'.
Mr. Meisner? (Court Clerk)
THE COURT CLERK: Mr. Fitzgibbons?
MR. FITZGIBBONS: Yes.
THE COURT CLERK: Ms. Guttorsmen?
MS. GUTTORSMEN: Yes.
THE COURT CLERK: Mr. Fix?
MR. FIX: Yes.
THE COURT CLERK: Josephine Melnick?
JOSEPHINE MELNICK: No.
At this point, pandemonium broke out in the courtroom. Many supporters of the defendants who were present leapt to their feet screaming. People pounded on the benches of the courtroom and some of the defense attorneys pounded on their desks and shouted. The prosecutor then rose to his feet and the following exchange took place.
MR. PLAISTED: Your Honor, I would ask that the courtroom be cleared and I would ask in light of the answer that the jury be sent back to the jury room.
I would ask that the courtroom be cleared.
MR. MC ALEVY: Poll the jury.
MR. PLAISTED: I would ask that the proper remedy at this point is for the jury to return to the jury room and resume deliberations
I would ask that they do so. That's what the instructions call for.
MR. ANOLIK: I ask that the poll be continued first.
MR. PLAISTED: That's not appropriate.
THE COURT: Ladies and gentlemen, it is apparent from the answer that the verdict of the jury is not unanimous. Under the circumstances I request that the jury resume their deliberations.
The jury then filed out of the courtroom. Mr. Hayden made the following observation:
MR. HAYDEN: Judge, it is my understanding from the spectators that one of the jurors wanted to speak to you on the way out.
THE COURT: Correct.
All counsel then met in chambers, where the court elaborated on its response to Mr. Hayden:
THE COURT: Let me (say) something. Mr. Hayden mentioned this, and I want to put it on the record immediately. As the jurors were filing out, Mrs. Melnick turned to me and said she wanted to say something. I held my hand up to her because I certainly didn't want her to blurt something out.
She obviously wishes to communicate with the Court in some way. I look to you for assistance.
Mr. Hayden then stated:
MR. HAYDEN: I'd like it done immediately and I would like it on the record in private. Immediately, because if there is a coercion situation, and if we have a dictatorial foreperson, et cetera, I do not want there to be too much time elapsed before this women gets to the Court.
I think the Court might be proper not to take it then.
Other counsel agreed with Mr. Hayden that the court should speak with Mrs. Melnick immediately. The prosecution disagreed and then the following discussion took place:
MR. PLAISTED: We have a right to put our position on the record.
MR. HAYDEN: That can go after.
THE COURT: Let's not deteriorate.
The first thing to do, unless there is some objection, is a note should go up to Mrs. Melnick asking her if she wants to speak to me. I am not going to insist upon it unless she wants to do it.
I think we ought to do it immediately.
MR. PLAISTED: Object. I don't think we should be intruding in the jury deliberations.
There is no case law supporting it.
What I would ask is that rather-I just don't think there is anything that counsel can cite to you that suggests that there should be an in camera, out of camera, interview of jurors.
I don't think it is appropriate. I think the remedy in these situations when you have a juror who says at the poll that it is not her verdict is that they resume deliberations to see if they can arrive at a unanimous verdict.
Vigorous argument ensued. The court then ruled:
THE COURT: I will write a note to the jury, I'll let you look at it, if you agree we will send it up.
Gentlemen, here is the note I propose sending.
Counsel agreed that the note should be sent asking whether Mrs. Melnick wished to speak to the court or whether the jury wished to continue its deliberations. As the conversation, which had lasted about ten minutes, was concluding, the court received another note from the jury:
THE COURT: We have just received a note from the jury.
The note from the jury reads as follows: "May we continue polling the jury?"
Discussion followed and the court then asked counsel whether they agreed that the polling should be continued:
MR. BAIME: Absolutely.
MR. SILBER: I would ask that the polling continue beginning with Number Five.
MR. PLAISTED: I ask that we start over in doing it. It doesn't make any difference.
MR. SILBER: The question as it came from the jury-
THE COURT: I am going to repoll the jury.
MR. ARSENAULT: Over objection.
MR. SILBER: Over my objection.
MR. ARSENAULT: All defense attorneys.
Counsel then went back into the courtroom and the proceedings resumed:
THE COURT: Ladies and gentlemen, in view of the substantial outburst as a result of the verdict and what occurred I am directing that the courtroom be cleared of all persons other than counsel, defendants themselves, and the press.
Everyone else is directed to leave immediately.
The court noted that it was going to repoll the jury beginning from the first juror. Counsel's only objection was that by starting the poll with juror # 1, instead of continuing the poll with juror # 5, the jury's note was not being read literally. No other objection was made to the repolling. No request was made to have the verdict announced. The jury was then brought into the courtroom. Twenty-five minutes had elapsed from the time that the jury was asked to continue deliberating and the time that they returned to the courtroom with the second verdict. The court addressed the jury:
THE COURT: Ladies and gentlemen of the jury, I have received a note with your request that the polling be continued. I again remind you that each of you will be asked whether you agree or disagree with the verdict as announced by your foreperson.
If you agree you merely say "yes". If you disagree you say "no".
We will start again with Mr. Fitzgibbon.
Mr. Meisner, call the list, please.
Each juror responded "yes". The court then entered judgment:
THE COURT: Thank you. Judgment shall be entered in accordance with the verdict of the jury and the verdict sheet shall be filed with the Clerk.
Defense counsel then made application that the jury not be released until motions were made. The court agreed and the jury was excused temporarily. After the jury left the courtroom, Mr. Baime commented:
MR. BAIME: Judge, I noticed during the whole polling of the jury that-and I think the record should reflect, because there's really no way Mr. Sokol could reflect it on the written record other than by description, but Juror Number Four, Mrs. Melnick, although she answered "yes", put her hands in the air and shrugged and was crying and shook her head and said "yes" in a tone of resignation which I really did not have the impression represented her free will.
I think the record should also reflect that Mrs. Steidl was unable to rise to answer the Court's polling questions, remained seated and was crying and merely sobbed out "yes".
Also I think it was not a true reflection of her free will choice.
Mr. Anolik and Mr. Hayden then requested that the court interview Mrs. Melnick. The prosecutor objected:
MR. PLAISTED: With respect to an interview of a juror about deliberations, it is totally inappropriate.
We oppose it. Certainly without the Court having the benefit of case law, we can provide it by tomorrow morning or the next day or Monday if your Honor thinks it is necessary, but the cases couldn't be more clear. We should not and do not delve into the deliberations of the jury.
With respect to Mr. Baime's observations of Mrs. Melnick, there is no question she is emotionally involved; however, I disagree with his physical observations.
The members of the U. S. Attorney's Office seated at counsel table and behind us also disagree with respect to this description of shaking of the head and the other things that he said.
There is no question that she is emotionally upset, as any juror would be under these kinds of circumstances.
Your Honor, I can't argue more strenuously that it is totally inappropriate. There is no case law to support defense counsel's request. It is impeaching.
What they are seeking to do is lay a record to attempt to impeach a verdict. These cases are very clear, one does not do that.
It is certainly not something that need be done at this moment, if it is to be done at all, and I would resist and at least ask your Honor to give us the opportunity to provide your Honor the case law that I speak of because it is there, it is clear, and the defense has nothing to rely on.
Vigorous argument followed. Mr. Flood remarked:
MR. FLOOD: I want to place on the record it was 7:44 when they came back.
To my knowledge they have not had any dinner. They have been deprived of food since the lunchtime.
After listening to the arguments of counsel, the court offered its own observations and findings:
THE COURT: Gentlemen, first of all I think that the court should make some observations and some findings insofar as this jury is concerned.
When the jury first came out and began announcing its verdict there was tremendous emotional outbreak, particularly and certainly understandably from Mrs. Musto, (and) while the jury was being polled she was visibly crying and holding on to her husband and standing.
Although I took a moment in an effort to see if she could regain her composure and have somebody assist her she refused, again understandably, to leave the side of her husband.
There is no question in the Court's mind that that very dramatic moment had a tremendous impact upon this jury.
When we reached Mrs. Melnick in the poll she said "no". As she was going out she attempted to say something to the Court. I merely held up my hand to her because I didn't want her to say anything except under the proper circumstances.
We then, before there was any further communication with the jury, received a request that the polling be resumed. It was resumed, and all of the jurors indicated that they were unanimous. If there was any time or circumstance under which Mrs. Melnick felt that she still wished to speak to the Court she certainly could have said it at that precise moment. She did not.
Insofar as the jury is concerned, that certainly includes Mrs. Steidl and Mrs. Melnick, you have to be inhuman not to react emotionally to the rendering of the verdict in this courtroom, particularly to the reaction of Mrs. Musto and others.
The jury was upset, but I don't think that that necessitates or requires any finding by the Court that there was any improper conduct on anybody's part.
This has been a difficult case and difficult deliberations. I don't think under the circumstances I have any right to now call down any one or more jurors and begin asking them questions or even suggesting to them that they might want to have some discussion with the Court.
Counsel still insisted that Mrs. Melnick be interviewed:
MR. SILBER: I have not had an opportunity to speak and I would appreciate it if I could get one.
When the Court resumed after there was a request to continue the polling, the Court resumed the polling. I observed what Mr. Baime observed, that there was a shrug, there was an attempt to say something additional, there was a resignation in her "yes" but it was clear to me as just a lay person observed as well as a lawyer that she had something more to say.
When you join that with the fact that she had asked to speak to you and you had raised your hand to her in a negative fashion, that now wasn't the time to speak, when she made that request, when the Court had written out a note to her which was, you asked do you want to resume your deliberations, do you want to speak to me, I can't conceive-
The court responded that an interview would improperly intrude into the deliberative process of the jury:
THE COURT: Mr. Silber, there is only one possible explanation that Mrs. Melnick would give to the Court and to counsel and that is she would say why she voted "no" after they first announced they were unanimous and why she is now voting "yes", and that is so clearly beyond-
Counsel argued with the court's ruling. The court then stated:
THE COURT: I will do this for you. I have ruled on it, we will follow Mr. Plaisted's suggestion, if anyone can satisfy me that I have at this juncture a right to ask this woman what it is she wanted to say, because there is no question in my mind it will be an explanation of her vote, if you can satisfy me, and if it has to be briefed, that it should be done, then I will do it.
I understand defendants' position, but I don't think they have any right, she wants to see me for one reason, and that's to explain her vote, I don't have any right to inquire.
Mr. Baime then stated:
MR. BAIME: Just so my application is clear, the very clear feeling I had was that her response to the poll was not really yes, in other words, when she said "yes" it was a throw away "yes."
I hate to get into linguistics but it was a "yes" which was not a "yes." It was accompanied by a shrug and a nod and a gesture with her hands.
I really don't think it was a yes. I would like the inquiry to be really whether she intended to convey to the Court that indeed she did agree with the verdict.
Counsel continued to object to the court's decision. The court responded:
THE COURT: I have already indicated insofar as I'm concerned the only area that she would go into is why she voted "no" when we were told it was unanimous, a unanimous vote, and then why she voted "yes". That is so beyond what I am permitted to do, I have to deny the request.
If you can convince me that it is an appropriate inquiry on briefs I'll certainly reconsider it, but as we sit here tonight I just don't think I have the authority to do it.
The prosecutor urged the court to excuse the jury and then continue argument. Mr. Anolik for the first time requested that the jury be repolled on every count of the indictment. Stating that the jury had already been polled, the prosecutor objected. The court then ordered that the jury be brought back into the courtroom. After the jury was seated, the court delivered its final instructions. Mr. Anolik then stated again that he would like to have the jury repolled. The prosecutor objected and the objection was sustained by the court. The jury was then discharged. *fn2"
DISCUSSION OF THE LAW
The sixth amendment to the United States Constitution guarantees to all persons the right to a fair and impartial trial by jury. From the start of this trial to its conclusion this court has labored hard to ensure that this fundamental guarantee was faithfully implemented. It was, of course, impossible to have foreseen the problems that arose with the jury. Nevertheless, at that critical stage of the trial as in all other stages of the trial, the court sought guidance from counsel to ensure that its decisions were proper and in accordance with the law. In this motion for a new trial or for an acquittal, counsel renew some of their earlier objections. These objections are properly made and their merits will be dealt with in this opinion. Counsel also raise other objections, however, some of which were not made at trial and some of which are completely at variance with counsel's position at trial. Each will be considered separately.
Ex Parte Meeting with Juror Steidl
One instance in which counsel's current position contradicts their former position concerns the court's third meeting with Mrs. Steidl. Counsel argue that they never consented to have the court meet for a third time with the juror and urge that this third meeting was unauthorized. Yet when the record is read in context, the meeting was approved and applauded by counsel for defendants.
The court had first learned that Mrs. Steidl was emotionally upset on the morning of March 24. After advising counsel of the problem, the court suggested that it meet privately with the juror. The court specifically noted, however, that a private meeting would be conducted only if all counsel consented. The court also noted that if counsel wanted a court reporter present at the meeting it would agree to the request. Mr. Silber then responded:
Frankly, I have no trouble saying that you should be able to do it whichever way you want, with a reporter, without a reporter.
None of counsel objected to the court meeting alone with Mrs. Steidl or without a court reporter.
The court held an informal meeting with the juror and immediately reported the details of the discussion to counsel. Counsel were advised that Mrs. Steidl was upset because she was away from her husband and because of the pressure of the deliberations. Mrs. Steidl had informed the court that she felt pressured because "the foreman had insisted that the jurors support their views and indicated that they should do so before going to dinner last night." After the court disclosed to counsel the details of its meeting, there was argument about how to proceed. Mr. Hayden urged that "at the very least" another meeting with Mrs. Steidl was necessary and specifically noted that the conversation did not have to be on the record. Mr. Ford emphatically agreed, stating "I can't urge more strongly that it be done informally." None of the defense counsel objected to a second informal meeting between the court and Mrs. Steidl.
After this second meeting was held, the court again immediately reported the details of the conversation to counsel. The court advised the attorneys that Mrs. Steidl did not wish to continue to serve as a juror "under any circumstances" and solicited suggestions from counsel about what to do next. Defense counsel then jointly proposed that the court dismiss both Mrs. Steidl and the foreman and substitute two of the alternate jurors. This proposal, conditioning Mrs. Steidl's dismissal on an agreement to also dismiss the foreman, was rejected by the court. Vigorous argument ensued, with counsel unable to agree upon any course of action which would avoid a mistrial. During the course of a conference in chambers with counsel, it was apparent to the court that counsel would not agree to substitute an alternate or proceed with a jury of eleven. Therefore, unless Mrs. Steidl remained, a mistrial seemed imminent. Accordingly, after reflecting on the matter, the court determined to make a final effort with Mrs. Steidl.
The court conducted the interview informally because of the inhibiting effect that the presence of a court reporter might have on the juror. Moreover, the court understood from counsel's prior positions that an informal meeting was the preferred manner of proceeding. This understanding was confirmed when the details of the meeting were reported to counsel. Mr. Hayden applauded the court for its "ingenuity," and Mr. Silber remarked that he "adopt(ed) and support(ed) the procedure employed." Three other counsel then joined in the remarks of Mr. Silber. None of the defense counsel voiced any objection to any of the court's informal meetings with Mrs. Steidl. *fn3"
After the court reported the details of its last informal meeting with Mrs. Steidl to counsel, a voir dire examination of the juror was conducted. At Mr. Hayden's request, the questioning was conducted in the court's chambers. All counsel and the court reporter were present for the proceedings. The individual defendants, however, agreed to waive their right to be present. In response to limited questioning by the court, Mrs. Steidl gave her assurance that she could continue to serve as an effective, fair and impartial juror. The hearing was then concluded and proceedings resumed in the courtroom.
Soon thereafter, Mrs. Steidl resumed her place on the jury. The jurors were then summoned to the courtroom, where they received an instruction prepared with the consent and agreement of all counsel. The instruction advised the jurors that given the size and complexity of the case it was expected that "there would be lively and even heated discussion over the evidence and the issues presented." They were also reminded that each of them was free "to express or not to express him or herself on any of the issues that were presented," and that all persons' views, including those of the foreman, were entitled to equal weight. Then, referring to its meeting with Mrs. Steidl, the court fully informed the jury of what was said to her:
The jurors were instructed to be impartial, to consult with one another, to reconsider their own views if erroneous but not to surrender their honest convictions, and to seek the truth from the evidence. The jury was then excused to continue deliberations.
The record therefore reveals that counsel never objected to the court's informal meetings with Mrs. Steidl, that counsel explicitly approved of the court's third meeting with the juror, that a formal voir dire examination assured counsel of Mrs. Steidl's impartiality, and that the jury was instructed precisely on what had been said to the juror during her meetings with the court. Given these facts, the court is somewhat surprised that counsel would now urge that the court's third meeting with Mrs. Steidl was unauthorized and constitutes grounds for a new trial or an acquittal. Defendants waived any objection to the meeting; indeed they approved it and readily accepted its benefits.
The situation here is closely analogous to that in United States v. Jones, 542 F.2d 186, 212 (4th Cir.), cert. denied, 426 U.S. 922, 96 S. Ct. 2629, 49 L. Ed. 2d 375 (1976). In Jones, counsel had agreed to allow the court to conduct in camera examinations of two jurors with only the court reporter present. After defendants were convicted, counsel urged that the examinations were improper. The court held:
Since, in conducting the in camera examinations, the trial judge was merely adopting a procedure suggested to him by counsel for the defendants, it hardly requires discussion that the defendants will not be heard to complain that examinations were conducted in camera without the presence of their counsel. Id. at 212 (citations omitted)
The Court then stated:
Even had counsel for the defendants not suggested and, by implication at least, agreed to the procedure followed by the trial court, the very fact that counsel for the defendants knew of the procedure, and neither before nor after the examinations were completed, objected would amount under the authorities to a waiver of any claim of error in regard to the in camera examination in the absence of a showing of prejudice. Id. at 213. (citations omitted)
Defendants contend that the situation here is not controlled by Jones, but rather by United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978). In Gypsum, even though counsel had acquiesced to the judge's ex parte conference with the jury foreman, the Court held that the meeting, under the circumstances of the case, constituted reversible error:
Because neither counsel received a full report from the judge, they were not aware of the scope of the conversation between the foreman and the judge, of the judge's statement that the jury should continue to deliberate in order to reach a verdict, or of the real risk that the foreman's impression was that a verdict "one way or the other' was required. Counsel were thus denied any opportunity to clear up the confusion regarding the judge's direction to the foreman, which could readily have been accomplished by requesting that the whole jury be called into the courtroom for a clarifying instruction. Id. at 461. (citations omitted) (emphasis supplied)
The situation here differs from that in Gypsum in three fundamental respects. First, here the court made a full report to counsel of its meetings with Mrs. Steidl immediately after the meetings were held. Second, a voir dire examination of Mrs. Steidl was conducted with counsel and the court reporter present, at which time the juror assured all that she could and would continue to serve fairly and impartially. Third, and most importantly, any misimpression that the jury might have had of the court's meetings with Mrs. Steidl was cured by the court's instruction to the jury, the language of which had been agreed upon by all counsel. The instruction very explicitly clarified the jury's role and also related to the jury the precise details of the court's discussions with Mrs. Steidl. Because the facts of this case are materially different from those of Gypsum, the principle of that case does not mandate the relief sought by the defendants.
Similarly, Rogers v. United States, 422 U.S. 35, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975), also urged by defendants as a controlling precedent, is inapposite. In Rogers, the court received a note from the jury asking whether the court would "accept the Verdict-"Guilty as charged with extreme mercy of the Court.' " Without notifying defendant or his counsel, the court sent a note to the jury advising "that the court's answer is in the affirmative." Id. at 36, 95 S. Ct. at 2093. Five minutes later, the jury returned its verdict of guilty. The court held that because counsel did not become aware of the judge's note to the jury until after the petition for certiorari had been filed, the unilateral communication constituted reversible error. Id. at 41, 95 S. Ct. at 2095. In reaching its decision, the Court reasoned that "the trial judge's response may have induced unanimity by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise." Id.
Again, the situation in this case is significantly different. Here, any misconceptions the jury might have had about the court's ex parte conferences with Mrs. Steidl were clarified by the court's instruction, the language of which was assented to by all counsel. Moreover, in this case, because the verdict was not delivered until two days after the clarifying instruction was given, any suggestion of coercion is negated. In Rogers, on the other hand, only five minutes had elapsed between the time of the judge's communication to the jury and the return of the verdict. Thus, there was compelling reason to believe that the judge's communication had a coercive effect on the outcome of the jury's deliberations.
Rogers and Gypsum thus stand for the proposition that where ex parte communications between the judge and jury are likely to have had a coercive effect on the jury's deliberations, the communications will constitute grounds for reversal. These cases do not, however, provide that ex parte conversations are per se prejudicial error, nor do they provide that counsel may not waive the right to be present during the court's communications with jurors. In fact, what the Court in Gypsum found "most troubling" was
that the ex parte discussion was inadvertently allowed to drift into what amounted to a supplemental instruction to the foreman relating to the jury's obligation to return a verdict, coupled with the fact that counsel were denied any chance to correct whatever mistaken impression the foreman might have taken from this conversation … 438 U.S. at 462, 98 S. Ct. at 2886.
Here, counsel were not only aware of the court's ex parte conversations with Mrs. Steidl but had explicitly approved of them. If counsel had any objections to the procedure employed by the court, they had every opportunity to state them. No objections were ever voiced. Instead, counsel lauded the court for its efforts to resolve a critical and extremely delicate situation.
In a situation where the potential for prejudice was far greater than it was here, the Third Circuit also found a waiver, United States v. Grosso, 358 F.2d 154 (3d Cir. 1966), rev'd on other grounds, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968). In Grosso, the jury sent the judge a note indicating their inability to reach a verdict. Without notice to defendant or his counsel, the judge replied that the jury should continue their deliberations. Counsel voiced no objection to the judge's response. On appeal, the court found that although the judge's communication constituted error, defendant had waived his right to object to the procedure:
(If) appellant's counsel was of the opinion that the errors were prejudicial it was his obligation to interpose a timely objection and seek corrective action by the Court… A defendant may not sit idly by in the face of obvious error and later take advantage of a situation which by his inaction he has helped to create. Id. at 158 (citations omitted)
See also United States v. Jones, 542 F.2d 186, 213 (4th Cir.), cert. denied, 426 U.S. 922, 96 S. Ct. 2629, 49 L. Ed. 2d 375 (1976); Truscott v. Chaplin, 403 F.2d 644, 645 (3d Cir. 1968).
Similarly, this court finds that the defendants have waived their right to object to the court's ex parte meetings with Mrs. Steidl. The court also finds that even if there were no waiver, prejudice did not result from the conversation. The test for prejudice is whether the ex parte contact with the juror has likely impugned the integrity of the jury's verdict. United States v. Williams, 613 F.2d 573, 575 (5th Cir.), cert. denied, 449 U.S. 849, 101 S. Ct. 137, 66 L. Ed. 2d 60 (1980). If any prejudice resulted from the court's meetings with Mrs. Steidl, it was cured by both the voir dire examination of the juror, at which she indicated her continued impartiality, and the prophylactic instruction which was given to the jury with the consent of and at the urging of all counsel.
Order to Continue Deliberating
Defendants next argue that the court should have declared a mistrial when the first poll revealed that the jury was not unanimous. Rule 31(d) of the Federal Rules of Criminal Procedure specifically provides that where a poll reveals a lack of unanimity on the jury, the judge may either direct the jury to retire for further deliberations or discharge the jury. The judge has discretion to elect between these two alternatives and his decision is entitled to deference on review. United States v. Smith, 562 F.2d 619, 622 (10th Cir. 1977). A mistrial will be declared and the jury will be discharged only when such action is justified by "manifest necessity." Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Application of this standard often requires a balancing of two broad interests: one is the defendant's right to have his trial completed by a particular tribunal, and the other is the defendant's right to a considered judgment of all jurors rather than a judgment resulting from the pressures of "protracted and exhausting" deliberations. Id. at 509, 98 S. Ct. at 832. In balancing these interests, many factors are examined:
These include: (1) a timely objection by defendant, (2) the jury's collective opinion that it cannot agree, (3) the length of the deliberations of the jury, (4) the length of the trial, (5) the complexity of the issues presented to the jury, (6) any proper communications which the judge has had with the jury, and (7) the effects of possible exhaustion and the impact which coercion of further deliberations might have on the verdict. (citations omitted) Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978).
Application of these criteria to the facts of this case affirms that the court did not abuse its discretion in ordering the jury to continue deliberating. First, none of the defendants moved for a mistrial after the jury disclosed that it was not unanimous; nor was there any objection to the court's instruction. Therefore, defendants themselves made a considered decision that it would be better to have the deliberations completed by a particular tribunal than to have the tribunal discharged. Arizona v. Washington, 434 U.S. at 509, 98 S. Ct. at 832. Because defendants chose this course, they should not now be heard to complain. The decision in Government of the Virgin Islands v. Smith, 558 F.2d 691 (3d Cir.), cert. denied, 434 U.S. 957, 98 S. Ct. 486, 54 L. Ed. 2d 316 (1977), provides a close analogy. In Smith, the trial judge, believing that the jurors were deadlocked, ordered them discharged. To his surprise, he received a telephone call from the foreman one hour later indicating that a verdict had been reached on one count and that it was recorded on a piece of paper located in a drawer in the jury room. Three days later, the jury reconvened, the foreman read the verdict, and all jurors expressed their agreement with the finding. It was not until the matter was appealed that defendant objected to the dismissal of the jury and its reconvention. By then, however, it was too late:
(If) there were any procedural defect, the defense's failure to object, either before the verdict was announced or immediately thereafter, constituted waiver. Id. at 693.
For similar reasons, this court finds that by not making a timely objection for a mistrial after the lack of unanimity in the verdict was revealed, defendants have waived their right to object.
Even if no waiver were present, however, there are other reasons which support the court's refusal to declare a mistrial. First, the jury had been deliberating for only 30 hours in a trial which lasted for almost five months. Second, the indictment contained 46 counts, some of which were particularly complex. Third, although the jurors had indicated that they were deadlocked a day earlier, all subsequent communications indicated that the deliberations were continuing. Finally, the jurors never indicated that they were exhausted. The court therefore finds that it properly exercised its discretion in ordering the jury to continue deliberating after the poll disclosed a lack of unanimity.
In so concluding, the court's decision is consistent with United States v. Warren, 594 F.2d 1046 (5th Cir. 1979) and United States v. Smith, 562 F.2d 619 (10th Cir. 1977). In each case, the trial court had ordered the jury to continue deliberating after a poll revealed a lack of unanimity. Both lower court decisions were upheld on appeal, with the court in Smith noting:
(The trial judge) is in a better position than the appellate court to determine the effect of a dissenting or uncertain vote upon the likelihood that further deliberations will yield a freely given verdict. His judgment is entitled to deference. (citations omitted) 562 F.2d at 622.
Decision to Discontinue Poll After Juror Four Announced Dissent with Verdict
Defendants also allege that the court had improperly refused to continue the poll of the jurors after juror # 4 dissented with the verdict. The cases uniformly prohibit a judge from inquiring into a jury's numerical division. See, e.g., Brasfield v. United States, 272 U.S. 448, 450, 47 S. Ct. 135, 136, 71 L. Ed. 345 (1926); Government of the Virgin Islands v. Romain, 600 F.2d 435 (3d Cir. 1979). The practice of making such inquiries is condemned because it tends to have a coercive effect on jury deliberations:
It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned. Brasfield v. United States, 272 U.S. 448, 450, 47 S. Ct. 135, 136, 71 L. Ed. 345 (1926).
Thus, even where the foreman only reveals the numerical division of the jury, without specifying which number favors conviction, there is reversible error. Id.
Defendants argue that neither Brasfield nor Romain are controlling because both cases dealt with inquiries into the numerical division of the jury before a verdict was returned and neither dealt with the appropriateness of continuing a poll after a juror expressed dissent with the verdict. Defendants reason that if the court had continued the poll, other jurors might have voiced their dissent with the verdict and two salutary purposes might have been accomplished. First, the court, aware of the strength of the dissent, might have declared a mistrial. Second, Mrs. Melnick might not have been "left totally exposed in public as the lone dissenter" and might then not have been pressured to change her vote during the subsequent deliberations.
Although defendants' arguments have superficial appeal, they are not convincing. As noted previously, there are many factors considered by a court in determining whether to declare a mistrial. See Arnold v. McCarthy, 566 F.2d 1377, 1386-87 (9th Cir. 1978). Never considered, however, is the size of the jury's numerical division and the effect that such a division might have on the jury's continued deliberations. To inquire into the numerical division of a jury is so flagrantly improper, Brasfield v. United States, 272 U.S. at 450, 47 S. Ct. at 136, that it cannot reasonably be argued that the judge must assess the magnitude of a jury's numerical division in deciding whether to declare a mistrial.
Equally unpersuasive is defendants' second argument. Under defendants' reasoning, had the court continued the polling, other jurors might have voiced their dissent with the verdict and Mrs. Melnick, because no longer publicly isolated as the lone dissenter, would have felt less pressure to change her vote. This argument is based on nothing more than sheer speculation. One could just as easily envision a scenario where, in response to the defendants' demand that the polling be continued, the remainder of the jurors would have voiced their agreement with the verdict. Mrs. Melnick would then truly have been the lone publicly dissenting juror. Under those circumstances, defendants undoubtedly would contend that, by continuing the polling, the court had improperly inquired into the numerical division of the jury, and had thus publicly exposed Mrs. Melnick as the lone dissenter and had placed such great pressure upon her that she had no alternative but to ultimately change her vote.
The purpose of polling a jury is to ensure that there is unanimity in the verdict. United States v. Smith, 562 F.2d 619, 621 (10th Cir. 1977). Once a juror registers dissent with the verdict, no purpose is accomplished by continuing the poll. In fact, a continuation of the poll will only invite later charges that the court had improperly inquired into the jury's numerical division and had thereby tainted the verdict. It is therefore wisest to discontinue the poll immediately upon learning that the jury's verdict is not unanimous. See United States v. Warren, 594 F.2d 1046, 1050 (5th Cir. 1959). The court followed this course and in so doing committed no error. Furthermore, if there had been other dissenters to the verdict, they had the opportunity to express that dissent during the second polling.
Instruction to Resume Deliberations
Defendants next contend that the court erred by not instructing the jurors, when they were ordered to continue their deliberations, that they were free to change their prior votes. Defendants had not objected to the court's instruction at the time that it was given and no other instruction was suggested. Therefore, the right to contest the alleged procedural defect has been waived. Government of the Virgin Islands v. Smith, 558 F.2d 691 (3d Cir.), cert. denied, 434 U.S. 957, 98 S. Ct. 486, 54 L. Ed. 2d 316 (1977). Moreover, it was, in part, the unruly reaction of some counsel to the jury's lack of unanimity that necessitated the jury's prompt removal from the courtroom. Thus, if there were a procedural defect, it was not only waived by counsel's inaction, but was also necessitated by their conduct and the conduct of some of the defendants at the time that Mrs. Melnick voiced her dissent with the verdict.
Even in the absence of waiver, however, defendants have not been prejudiced by the court's instruction, which stated:
Ladies and gentlemen, it is apparent from the answer that the verdict of the jury is not unanimous. Under the circumstances I request that the jury resume their deliberations.
The jury was thus instructed to continue its deliberations because the verdict was not unanimous. The court had already made it clear to the jurors through its previous instructions that each juror was free to change his or her mind and that for a verdict to be valid it had to be unanimous. Therefore, the jury had been fully instructed on its obligations and defendants were not in any way prejudiced by the court's failure to provide the supplementary instruction, which is urged now for the first time.
Repetition of the Verdict
Defendants next argue that because the foreman did not repeat the verdict prior to the repolling of the jury, the verdict is a nullity. *fn4" This argument elevates form over substance; it gives no practical significance to the unanimity expressed by the jury upon repolling and it fails to appreciate the context in which the repolling took place and, in particular, the brief time period which had elapsed.
A note had been sent to the court by the jury requesting that the polling be continued. Although defense counsel urged the court to begin the poll with juror five, the court decided that the jury could properly be repolled only by beginning with the first juror. At no time after the court announced that it was going to start the poll anew did defendants request that the foreman repeat the verdict or announce a new verdict. Therefore, again, by failing to interpose a timely objection, defendants have waived their right to challenge an alleged procedural defect. Government of the Virgin Islands v. Smith, 558 F.2d 691, 693 (3d Cir.), cert. denied, 434 U.S. 957, 98 S. Ct. 486, 54 L. Ed. 2d 316 (1977).
Even if there were no waiver, however, defendants have not been prejudiced by the foreman's failure to repeat the verdict. Defendants' hypertechnical argument fails to recognize that "much of the rigidity characterizing the common law concept of the jury trial has been relaxed by a more pragmatic approach." Id. at 693. Thus, the Supreme Court has held that a verdict was not a nullity even though only eleven jurors were present when it was read, Humphries v. District of Columbia, 174 U.S. 190, 19 S. Ct. 637, 43 L. Ed. 944 (1889), and other courts have held that a verdict was valid even where the jury had been previously discharged and was reconvened only to deliver a verdict, Government of the Virgin Islands v. Smith, 558 F.2d 691, 694 (3d Cir.), cert. denied, 434 U.S. 957, 98 S. Ct. 486, 54 L. Ed. 2d 316 (1977), or where jurors had been allowed to disperse after deliberations had begun. United States v. Piancone, 506 F.2d 748 (3d Cir. 1974).
When the jurors unanimously responded in the affirmative to the repolling, there is no doubt that the verdict they were affirming was the verdict that the foreman had read aloud only minutes before. In initiating the repolling, the court specifically stated: "I again remind you that each of you will be asked whether you agree or disagree with the verdict as announced by your foreperson." (emphasis supplied). Because only one verdict had been announced by the foreperson, there is only one verdict that the jurors could have been addressing in giving their responses to the poll. This is affirmed by the signed verdict sheet submitted to the court, which corresponds exactly with the verdict initially read by the foreperson.
There can be no question, and the court so finds, that each and every juror, as well as everyone in the courtroom, knew that the jury was being polled on the verdict previously announced. To conclude otherwise would be to totally ignore the realities of the situation as it then existed.
Continuation of the Poll
Defendants' argument that the court should have continued the poll with juror # 5 is also without merit. The jurors had been returned to the jury room to continue their deliberations because a unanimous verdict had not been reached. They understood and had been instructed that their verdict had to be unanimous before the court would accept it. Thus, when they returned a second time, it was for the clear purpose of announcing a unanimous poll. No other purpose was intended. No other interpretation is reasonable. Moreover, there would have been no reason for the jury to have asked that the poll be continued unless Mrs. Melnick had changed her vote. *fn5"
Even if defendants are correct, however, in arguing that the purpose of the jury's request to continue the polling was to show that there were others who dissented with the verdict, then this purpose would not have been thwarted by starting the poll with juror # 1. Every juror still had the opportunity to express his or her agreement or disagreement with the verdict. On the other hand, if the court had adopted defendants' suggestion to continue the poll with juror # 5, it would have improperly inquired into the jury's division and would have invited charges of coercion. See Brasfield v. United States, 272 U.S. 448, 450, 47 S. Ct. 135, 136, 71 L. Ed. 345 (1926) In addition, such a procedure would have deprived the first four jurors of their respective rights to change their votes, a right which defendants insist all jurors possessed.
Therefore, no technical definition of the word "continue" in the jury's message is warranted. In effect, the message conveyed that the jury was indeed unanimous as originally indicated and that Mrs. Melnick was now prepared to so indicate. Defendants' strained interpretation is unwarranted.
Poll of Jury on Individual Counts
Defendants contend that the court improperly rejected their request to have the jury polled on the individual counts of the indictment. There is no absolute right to have a jury polled. United States v. Shepherd, 576 F.2d 719, 724 (7th Cir.), cert. denied, 439 U.S. 852, 99 S. Ct. 158, 58 L. Ed. 2d 155 (1978). The right exists only where it is seasonably exercised. Miranda v. United States, 255 F.2d 9, 17 (1st Cir. 1958). If the request for a poll is not made before the verdict is recorded, it comes too late. Id.; United States v. Shepherd, 576 F.2d 719, 724 n. 3 (7th Cir.), cert. denied, 439 U.S. 852, 99 S. Ct. 158, 58 L. Ed. 2d 155 (1978).
Defendants requested a poll of the jury immediately after the verdict was announced. Although this request was timely made, defendants did not ask at that time that the poll be particularized. Thus, the jurors were only required to state their agreement or disagreement with the verdict as announced by the foreperson. During the first poll, juror # 4 indicated that she did not agree with the verdict as announced. The jurors were then sent back to the jury room to continue their deliberations.
Soon thereafter, the jury sent a note to the court requesting that the polling be continued. The court advised counsel that it would begin the poll with juror # 1. Although counsel did ask that the polling begin with juror # 5, again, no request was made to have the court conduct a particularized poll. The poll was then conducted and all jurors indicated their agreement with the verdict as announced by the foreperson. The court then entered the verdict and temporarily excused the jury while hearing motions of counsel. It was only after the motions neared the end, and the court was prepared to return the jury to the courtroom to be discharged that counsel asked for the first time that the jury be polled on every count of the indictment. That request was denied.
Although defendants urge that the request for particularized polling was improperly denied, the request was not timely made. United States v. Shepherd, 576 F.2d 719, 724 n. 3 (7th Cir.), cert. denied, 439 U.S. 852, 99 S. Ct. 158, 58 L. Ed. 2d 155 (1978). If defendants thought that the indictment was sufficiently complex to warrant specific polling on each count, then a request for such a poll should have been made at the time that the verdict was originally announced. Defendants had more than ample time to make the request. By waiting until after the verdict was entered, however, defendants waived their right to request a different form of poll than that which was sought originally.
Defendants contend, however, that there is uncertainty in the jury's verdict and that United States v. Morris, 612 F.2d 483 (10th Cir. 1979), therefore mandates that the court conduct a particularized poll or at least a second poll of the jury. The uncertainty in the verdict allegedly stems from certain gesticulations made by juror # 4 at the time she expressed her agreement with the decision. *fn6" This alleged uncertainty, however, differs from the uncertainty present in Morris.
In Morris, a verdict was returned in which all five defendants were found guilty. When the jury was polled as to each defendant, the foreman stated that he disagreed with the verdict with respect to one defendant. The court then ordered the jury to continue their deliberations on the "last verdict." The jury subsequently returned and advised the judge that it was unable to agree on a verdict for the one defendant. The judge declared a mistrial as to that defendant.
On appeal, the court found that the foreman's disagreement with the verdict for the one defendant, created uncertainty as to the entire verdict. The court held that where the polling revealed uncertainty, the trial judge had an obligation to take remedial action. Id. at 491.
The situation here is distinguishable from that in Morris. Here, the poll did not reveal the juror's uncertainty with the verdict. Although juror # 4 made certain gesticulations at the time she indicated her agreement with the verdict, the court cannot conclude that these gestures indicated uncertainty with the decision. The court cannot be required to go beyond a juror's verbal response to a poll and determine whether the juror's body language is consistent with the stated response. The judge should be able to accept a juror's response to a poll at face value. If the response itself indicates uncertainty with the verdict, then the court should take remedial action. Thus, where a juror responds to a poll by saying "Yes, with a question mark." United States v. McCoy, 139 U.S. App. D.C. 60, 429 F.2d 739 (D.C.Cir.1970), or "It's my verdict but I'm still in doubt." United States v. Edwards, 469 F.2d 1362 (5th Cir. 1972), or "I voted guilty to man, but not to God." United States v. Freedson, 608 F.2d 739 (9th Cir. 1979), then the court has an objective statement of the juror's uncertainty. But to require the court to evaluate the juror's posture, body movements, and other gestures is to impose a standard incapable of application.
Furthermore, agreement with a verdict does not require pleasure in its announcement. A juror may display unhappiness with a verdict, or reluctance or sadness in its rendition, but still believe in its correctness. A juror may cry over a verdict in which he or she has participated without in any way evidencing disagreement with it. Few jurors relish a finding of guilt. To suggest that tears, *fn7" a shrug of the shoulders or other body movement should negate or place in question an answer of a juror is to impose upon a court powers of perception which it does not possess and should not attempt to employ. The validity of a poll should depend on what the court hears and not what it sees.
The court therefore is unable to find that the gesticulations accompanying juror # 4's stated agreement with the verdict indicated uncertainty which required remedial action through repolling. In addition, the court finds that individualized polling was unnecessary. This is not a case where on each count some of the defendants were guilty and some were not guilty. Here, where any one defendant was found guilty on a count, all persons accused in that count were also found guilty. Moreover, to accept defendants' argument that a juror expressing agreement with the verdict as announced by the foreperson is not necessarily expressing agreement with the entire verdict is preposterous. The court agrees with the government that, given the manner in which the question was phrased, a juror responding "yes" when asked whether he or she agreed with the verdict as announced, was stating agreement with the entire verdict. On the other hand, a juror responding "no" to the same question might be disagreeing with the verdict in part, yet agreeing in part. It is only in the latter situation that the uncertainty created would require particularized polling. Here, however, all jurors voiced their agreement with the verdict. Therefore, polling on individual counts was unnecessary because there was no uncertainty in the jurors' response to the poll.
Request for a Hearing
Defendants contend that the court had improperly refused to speak with juror # 4, Mrs. Melnick, when she indicated that she had something to say to the court. To understand why the court responded to her request as it did, one must recall the events of the moment.
When the foreperson began announcing the verdict to a courtroom clearly filled with supporters of the defendants, Mrs. Musto, the wife of the defendant William V. Musto, stood and began sobbing and crying and had her arms around her husband's neck in full view of the jury. The government moved to clear the courtroom, a suggestion which the court rejected. The court did ask, however, if someone would come to the assistance of Mrs. Musto. She refused and she continued through the reading of the long verdict to loudly sob and cry-a moment that had incredible dramatic and emotional impact upon anyone with any feelings in the courtroom. It was in this atmosphere that the jury polling began and Mrs. Melnick indicated her "no" vote. The jurors were then excused because their verdict had not been unanimous; they were requested to resume deliberations.
As the jurors were leaving the courtroom, Mrs. Melnick said, "Your Honor." The court held up a hand to stop her from saying anything further. Although defendants suggest a myriad of possibilities, one can properly assume that Mrs. Melnick intended to explain why she had voted "no", after apparently indicating that she would vote "yes." Counsel and the court then convened and decided that a note would be sent to the jury asking whether Mrs. Melnick wished to meet with the court, or whether the jury wished to continue its deliberations. Before that note could be delivered, a note was received from the jury requesting that the polling continue. No more than ten to fifteen minutes had elapsed.
When the jury was repolled, it was unanimous. Mrs. Melnick, as well as one or two of the other female jurors, were crying, which was certainly understandable in view of the length of the trial, the length of the deliberations, and the tension of the courtroom at the time the verdict was entered, coupled with Mrs. Musto's emotional outburst. Counsel requested that the court permit Mrs. Melnick to be interviewed so that it could determine what it was that she wished to say to the court immediately after casting her "no" vote. Although, concededly, many other possibilities exist, it is most probable that Mrs. Melnick would have explained her "no" vote and for the inquiry to have any meaning, would then have been required to explain why she changed her vote from "no" to "yes." No inquiry could more clearly intrude upon the deliberations of the jury. Mrs. Melnick was instructed by the court, and a copy of the charge was delivered to her setting forth her individual responsibilities. Her right to disagree was clearly enunciated in the charge and repeated in open court. She also knew from reviewing the charge that she had the right to communicate with the court by a written note. *fn8" She knew from her actual experience that Mrs. Steidl had met with the court. True, when she attempted to speak in open court as she was filing out, she was stopped, but nothing the court did prohibited her from sending a note to the court or, in fact from answering "no," when the jury was once again polled.
In essence, the defendants claim that pressure was brought to bear upon Mrs. Melnick based upon her change of vote and from her demeanor when she subsequently agreed to the verdict. As a result, the defendants seek to inquire of Mrs. Melnick what it is that she wished to say to the court. She took an oath; she knew her obligation; and the court must assume that she would abide by her oath. Neither a juror's change in position nor display of emotion should permit this court or any other court to inquire of a juror why he or she took a particular position or why he or she changed position at any time during the course of deliberations.
During the course of jury deliberations there are numerous pressures which are brought to bear upon the jurors, particularly those who find themselves in a minority position. See Smith v. Brewer, 444 F. Supp. 482 (S.D.Iowa), aff'd, 577 F.2d 466 (8th Cir.), cert. denied, 439 U.S. 967, 99 S. Ct. 457, 58 L. Ed. 2d 426 (1978). It is unthinkable that such pressures would not exist, and they undoubtedly multiply as the size of the minority diminishes. One would expect that those in the majority would argue and shout in an attempt to persuade those in the minority to accept the views of the majority. The size of the jury room itself, the length of time of the deliberations, coupled with the length of time of the trial, all create pressures as well.
What constitutes pressure to one person will not necessarily constitute pressure to another. For instance, one of the alleged sources of pressure was the insistence that a dissenting juror express him or herself in support of the position taken. Counsel argued that a juror should be free not to express support for a position and the court so instructed the jury at the request of defense counsel. However, on reflection, even that instruction was probably an improper intrusion into the jury process. Certainly, the jurors have a right to insist that a position be supported. A juror taking a minority position might feel pressure if required to explain the position taken, but no one could seriously contend that such a demand by a foreperson or a majority of the jurors constitutes unfair or undue pressure upon a juror. There is nothing before the court which would justify a finding that any type of undue or unfair pressure was brought to bear upon any juror. Furthermore, the jurors were advised that they could communicate, either individually or collectively or through the foreperson, with the court in writing. No such communication was received. They were also instructed as to the limited role of the foreperson and the equality of his position with other jurors.
The jury process has traditionally been secret and for valid reasons. The policy encourages free and open discussion among jurors, promotes verdict finality, and maintains the integrity of the jury as a judicial decision-making body. cf. Government of the Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S. Ct. 1119, 47 L. Ed. 2d 323 (1976). These same interests, which are protected by the policy of secrecy surrounding deliberations before a verdict is reached, are also reflected in Rule 606(b) of the Federal Rules of Evidence, which prohibits the impeachment of verdicts. Thus, despite defendants' claims to the contrary, some of the values underlying the rule against impeachment of verdicts are also implicated where a juror, prior to reaching a verdict, seeks to speak with the judge.
The policy against conversing with jurors prior to the entry of the verdict is most evident in the cases dealing with the polling of jurors. Those cases firmly establish that
It is both unwise and undesirable that the court should enter into an argument with the juror or require an explanation of his change of position. To an even greater degree is it improper to allow counsel to interpose and question the reasons or motives of the juror in changing his mind. Bruce v. Chestnut Farms-Chevy Chase Dairy, 75 U.S. App. D.C. 192, 126 F.2d 224, 225 (D.C.Cir.1942).
Thus, where a juror changed her vote and was later polled, the judge properly refrained from asking the weeping juror whether any "undue influence" had been exerted on her. United States v. Freedson, 608 F.2d 739 (9th Cir. 1979). Similarly, where a juror asked to approach the bench when questioned by the judge during a poll, the judge properly refused to honor her request. United States v. Smith, 562 F.2d 619, 620 (10th Cir. 1977). And, where jurors gave the judge a note requesting leniency immediately after they were polled, the judge appropriately refused to conduct an inquiry:
Making inquiries of the jury, as the defense requested, is not to be encouraged because it threatens the secrecy of jury deliberations and invites charges of coercion and interference with the jury function by the trial judge. Responses by individual jurors are unpredictable, and a dialogue, once begun, is often difficult to stop before it causes damage. United States v. Lee, 532 F.2d 911, 915 (3d Cir.), cert. denied, 429 U.S. 838, 97 S. Ct. 109, 50 L. Ed. 2d 105 (1976). *fn9"
Because questioning of jurors may easily intrude into the deliberative process and invite charges of coercion, United States v. Sexton, 456 F.2d 961 (5th Cir. 1972), such questioning should be avoided unless there is strong evidence of impropriety.
Just as pre-verdict inquiries of jurors should be avoided whenever possible, so should post-verdict inquiries. The rule against the impeachment of verdicts was formulated almost 200 years ago in Vaise v. Delaval, 99 Eng.Rep. 944 (1785). In Vaise, it was alleged that the verdict should be set aside because the jury tossed a coin to decide which party prevailed. An affidavit, submitted by one of the jurors describing the impropriety, was refused by Lord Mansfield who noted: "(In) every such case the court must derive their knowledge from some other source: such as from person having seen the transaction through a window, or by some other means."
The rule formulated in Vaise has also been adopted by the courts of this country. McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915). It is no longer so rigidly applied, however, as it once was. United States v. Grieco, 261 F.2d 414 (2d Cir. 1958), cert. denied, 359 U.S. 907, 79 S. Ct. 582, 3 L. Ed. 2d 572 (1959). Today, reception of a juror's statement as evidence is prohibited only where it is offered "to show matters which essentially inhere in the verdict itself." Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917, 47 L. Ed. 2d 323, 96 S. Ct. 1119 (1976). A juror may testify, however, "to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind." Mattox v. United States, 146 U.S. 140, 149, 36 L. Ed. 917, 13 S. Ct. 50 (1892). This modern formulation of the rule and of its exception has been codified in Rule 606 of the Federal Rules of Evidence.
The cases clearly establish that evidence of discussions among jurors and intimidation or harassment of one juror by another, are among those matters which "inhere in the verdict itself" and are therefore inappropriate for judicial inquiry. Government of the Virgin Islands v. Gereau, 523 F.2d 140, 150 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S. Ct. 1119, 47 L. Ed. 2d 323 (1976). Yet it is precisely these matters that form the basis for defendants' request for a hearing. Defendants attempt to circumvent application of the rule by arguing that a hearing is necessary to determine whether what Mrs. Melnick wished to say falls within the prohibition of Rule 606.
Defendants' approach is clearly improper. Before defendants are entitled to a hearing they must produce evidence of misconduct which is not barred by the rule of juror incompetency. United States v. Eagle, 539 F.2d 1166 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S. Ct. 1146, 51 L. Ed. 2d 563 (1977). They must then establish the existence of grounds recognized as adequate to overturn the verdict. Government of the Virgin Islands v. Gereau, 523 F.2d at 148. If defendants are seeking to establish a juror's incompetence, "only strong evidence that it is likely that the juror suffered from such incompetence during jury service will justify an inquiry into whether such incompetence did exist." United States v. Dioguardi, 492 F.2d 70, 78 (2d Cir.), cert. denied, sub nom. Ostrer v. United States, 419 U.S. 829, 95 S. Ct. 49, 42 L. Ed. 2d 53 (1974).
Defendants have offered neither proof of juror misconduct nor proof of juror incompetence, yet they seek a hearing to determine whether there are reasons to overturn the verdict. Such an inquiry would necessarily intrude into the sanctity of the jury's deliberations and is improper. In addition, this is not a case where juror incompetence, United States v. Pleva, 66 F.2d 529 (2d Cir. 1933), or juror bias, United States v. Hockridge, 573 F.2d 752 (2d Cir.), cert. denied, 439 U.S. 821, 99 S. Ct. 85, 58 L. Ed. 2d 112 (1978), or some other impropriety was evident at trial, See, e.g., United States v. Kohne, 358 F. Supp. 1046 (W.D.Pa.), aff'd, 487 F.2d 1395 (3d Cir. 1973), which required the court to hold a hearing. The defendants quite properly ask the question: how can improper conduct be discovered, if the court refuses to receive the information? But the courts throughout our history have decided that the constitutional rights of the accused are better protected by nondisclosure rather than disclosure of jury deliberations. The policy of jury secrecy is so firmly ingrained in our system that only strong evidence of impropriety warrants inquiry. There is no strong evidence of impropriety in this matter, and it is not appropriate to conduct an inquiry to determine if it exists. Not all attempts by jurors to speak with the court must be turned aside, but a minimum threshold must be met. That threshold has not been met in this matter. The facts must necessitate the hearing: not the hearing provide the facts which justify its own existence. The court therefore concludes that it acted properly in not conducting a hearing at trial and that a hearing at this stage would be equally improper because no evidence justifying such an inquiry has been presented.
For the foregoing reasons, defendants' motions for a hearing or a new trial or acquittal are denied.
**fn3 Defense counsel not only concurred in the procedure followed but were pleased with the result. They undoubtedly viewed Mrs. Steidl as favorable to the defendants and were pleased with her retention on the jury.
*fn4 Although defendants insist that the verdict was a nullity, and that therefore the second poll was meaningless, nonetheless they argue that a poll by counts should have been conducted on the "non-existent verdict."
*fn5 Although counsel urged that the jury's request should have been read literally and that polling should have begun with juror # 5, counsel never argued that if the poll did not begin with the fifth juror, no poll should take place.
*fn6 The court finds that when Mrs. Melnick assented to the verdict she was crying and had shrugged her shoulders.
*fn7 Mrs. Melnick was crying during the first poll when she answered "no."
*fn8 The court had instructed the jury: "… please remember no member of the jury should ever attempt to communicate with the court by any means other than a signed writing …."
*fn9 The court's conversations with Mrs. Steidl demonstrate the wisdom of the Third Circuit's admonition. Although the juror was specifically instructed not to comment on the deliberations, she revealed to the court the pressures she allegedly was feeling from the deliberative process.
Anthony GenoveseDominick D'AgostinoFrank ScarafileGildo AimoneJohn BertoliJohn J. PowersLawrence DenticoThomas PrincipeWilliam V. MUSTO
Angelo Prisco
PRISCO made a motion as if he was swinging a baseball bat when he posed the question to VISCONTI
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
CRIMINAL COMPLAINT
UNITED STATES OF AMERICA v. ANGELO PRISCO, MICHAEL VISCONTI, and JOHN CAPPELLI
Mag No. 06-3533
I, the undersigned complainant, being duly sworn, state the following is true and correct to the best of my knowledge and belief. Between in or about June 2004 and July 2004 I in the District of New Jersey and elsewhere, the defendants ANGELO PRISCO, MICHAEL VISCONTI, and JOHN CAPPELLI:
SEE ATTACHMENT A
I further state that I am a Special Agent with the State of New Jersey Commission of Investigation, and that this complaint is based on the following facts:
SEE ATTACHMENT B
continued on the attached page(s) and made a part hereof.
Quandt, Special Agent State ot New Jersey, Commission of Investigation
Sworn to before me and subscribed in my presence, March 6, 2006, at Newark, New Jersey
HONORABLE MARK FALK UNITED STATES MAGISTRATE JUDGE
CONTENTS APPROVED UNITED STATES ATTORNEY
Steven D'Aguanno, AUSA Date: ::3 r6-o6
Attachment A
Conspired and agreed with each other and with others to obstruct, delay, and affect commerce and the movement of articles and commodities in commerce by extortion, by agreeing and attempting to obtain, the property of another person, namely EM, with the consent of such person, induced by wrongful use of actual and threatened force, violence, and fear, in violation of Title 18 United States Code, Sections 1951(a), (b)(2), & 2.
Attachment B
I, WILLIAM J. QUANDT, am a Special Agent with the State of New Jersey Commission of Investigation who has been deputized as a Special Deputy United States Marshal to work on an Organized Crime Task Force with the Federal Bureau of Investigation duly appointed according to law and acting as such. I am familiar with the facts set forth herein through my personal participation in the investigation, and through oral and written reports from other federal agents and law enforcement officers. Where statements of others are related herein, they are related in substance and part. Since this complaint is being submitted for a limited purpose, I have not set forth each and every fact that
On June 2, 2004, defendant JOHN CAPPELLI met with defendant MICHAEL VISCONTI at a restaurant in Edgewater, New Jersey. CAPPELLI, an electrical contractor with a business located in the Bronx, New York, told VISCONTI that one of CAPPELLI's competitors, subsequently identified as EMI, was attempting to take business away from CAPPELLI through lower bids. CAPPELLI stated that he wanted VISCONTI to talk to EM to ensure that CAPPELLI get the business back. Defendant .ANGELO PRISCO subsequently arrived at the restaurant and had a private meeting with CAPPELLI. VISCONTI subsequently told a cooperating witness (hereafter "CW") that he (VISCONTI) wanted the CW to accompany VISCONTI during the approach of EM on behalf of CAPPELLI.
On June 4, 2004, defendant VISCONTI informed the CW that the CW and VISCONTI would approach the Brooklyn guy on Monday, June 7, 2004, on behalf of defendant CAPPELLI. The CW understood the reference to the Brooklyn guy to be a reference to EM, the electrical contractor who was competing with CAPPELLI.
On June 5, 2004, defendant VISCONTI informed the CW that defendant CAPPELLI provides money to defendant PRISCO and that VISONTI and the CW were going to approach EM on behalf of CAPPELLI because of the money CAPPELLI pays to PRISCO. During a subsequent conversation on June 5, 2004, PRISCO told the CW that he (PRISCO) was aware that the CW and VISCONTI were handling that thing for the electrician. The CW understood this to be a reference to CAPPELLI.
EM operates an electrical contracting business located in Brooklyn, New York.
On June 7, 2004, defendant VISCONTI and the CW traveled from New Jersey to EM's place of business in Brooklyn, New York. VISCONTI told EM to terminate a contract signed by EM to provide electrical service to an outdoor festival, and thereby forgo electrical work that defendant CAPPELLI was also attempting to secure. The CW, who was present when VISCONTI spoke to EM, observed that EM was visibly afraid while VISCONTI was speaking. After leaving EM's place of business, VISCONTI told the CW to tell defendant PRISCO what happened with EM.
Between June 7, 2004, and June 24, 2004, EM did not terminate the contract as directed by defendant VISCONTI. On June 24, 2004, VISCONTI told the CW that he (VISCONTI) was sending two guys with the CW to hurt the guy in Brooklyn. The CW understood this to be a reference to EM. Defendant PRISCO subsequently joined the conversation and asked VISCONTI if he
(VISCONTI) was taking care of that thing for him. PRISCO made a motion as if he was swinging a baseball bat when he posed the question to VISCONTI, who responded by stating that he (VISCONTI) would handle it. The CW understood this to be a further reference to the plan to assault EM.
On July 6, 2004, defendant VISCONTI, while touching the CW on the shoulder and hip, told the CW break the Brooklyn guy up. The CW understood this to be a reference to a plan to assault EM because of EM's refusal to terminate the contract and forgo the electrical work at the outdoor festival in favor of defendant CAPPELLI. VISCONTI further instructed the CW to bring individuals associated with the CW to Brooklyn to assist in the assault of EM, and that the assault had to occur before July 8, 2004, because there was a meeting scheduled for that date regarding the situation with EM.
On July 7, 2004, the CW traveled to Brooklyn, New York, to meet EM on behalf of defendants PRISCO, VISCONTI, and CAPPELLI, ostensibly for the purpose of assaulting him and otherwise using actual and threatened force, violence, and fear to induce EM to forgo electrical work in favor of CAPPELLI. Investigative steps were taken in order to provide the CW with a reason to abort the plan to assault EM. The CW subsequently reported the details of the aborted effort to PRISCO, VISCONTI, and CAPPELLI.
On July 9, 2004, defendant VISCONTI told defendant CAPPELLI what occurred during the aborted plan to assault EM. CAPPELLI indicated that he was not happy that VISCONTI was unable
to see the Brooklyn guy, but VISCONTI and CAPPELLI nevertheless discussed a payment of $4,000 by CAPPELLI, who then handed VISCONTI an envelope containing an unknown amount of money. CAPPELLI told VISCONTI to make sure that defendant PRISCO received some of the money. VISCONTI subsequently gave the CW an envelope containing $2,500 and told the CW to deliver the envelope to PRISCO.
9. On July 10, 2004, the CW met defendant PRISCO and delivered the envelope containing $2,500 which defendant VISCONTI had instructed the CW to deliver to PRISCO. The CW told PRISCO about the meeting the CW had with VISCONTI and defendant CAPPELLI on July 9, 2004. PRISCO responded that sometimes things do not work out and that CAPPELLI had to understand as much.
ANGELO PRISCOJOHN CAPPELLIMICHAEL VISCONTI
African-American Criminal Organizations
AFRO-LINEAL ORGANIZED CRIME
The Commission shall have the duty and power to conduct investigations in connection with … organized crime and racketeering …. (N.J.S.A. 52:9M-2)
… [T]he Commission shall keep the public informed as to the operations of organized crime ….
(N.J.S.A. 52:9M-11)
The public, media, and even most law enforcement officials, have traditionally associated the term "organized crime" with Italian ethnic criminal syndicates, commonly called La Cosa Nostra (LCN) or the Mafia. To counter this narrow point of view, the State Commission of Investigation (SCI or Commission) has, for some time, emphasized that LCN, while a serious problem, represents only part of the organized underworld which preys on New Jersey and the rest of the country.
Among the criminal groups which should receive more attention than they have in the past are those of African ethnic background. Such Afro-lineal organized crime — composed exclusively or predominantly of persons of African ancestry — includes criminal syndicates of African-Americans, Jamaicans, Nigerians and others.
The neglect of this problem stems, in part, from the erroneous stereotype that African ethnic groups lack the stability to organize and are not capable of structuring a syndicate of any consequence. In addition, law enforcement resources are limited, and they have been devoted to dealing with more familiar groups which receive greater media attention, probably because they are perceived to threaten suburban interests.
Whatever the cause of the neglect, it has led, in many areas, to a serious shortage of information concerning the activities, membership and leadership of Afro-lineal criminal groups. As a result, several have become wealthy and entrenched , with substantial numbers of members. Their leaders are insulated from police investigations. They have terrorized neighborhoods, corrupted youth and fanned vio
lence in urban areas.
Afro-lineal criminal groups are particularly threatening because they are heavily engaged in narcotics trafficking, a scourge against all of society and a severe impediment to urban revitalization. They also promote significant frauds, high-volume illicit gambling, murder, extortion, official corruption and other criminal activities.
For several years, the SCI has developed intelligence on Afro-lineal mobs. These efforts culminated in a public hearing on November 29, 1990. This report summarizes the public hearing and provides additional information in order to give a comprehensive review of the problem and recommendations for dealing with it. In addition, some successful law enforcement efforts to curtail Afro-lineal organized crime will be highlighted in anticipation that they will be imitated elsewhere in New Jersey.
A survey of New Jersey law enforcement agencies conducted by the Commission concentrated on reported activity by African-American, Jamaican and Nigerian criminal groups in New Jersey. As reported at the Commission's public hearing by SCI Intelligence Analyst Debra A. Sowney, African-American groups have been identified as active in thirteen counties: Passaic, Bergen, Hudson, Essex, Union, Middlesex, Monmouth, Ocean, Atlantic, Camden, Mercer, Somerset and Morris. They participate primarily in the distribution of narcotics, but they were also reported to be involved in homicides, robberies, aggravated assaults and weapons offenses. In addition, the survey, combined with the SCI's own intelligence, revealed that African-American groups are involved in organized illegal gambling, often in cooperation with La Cosa Nostra, in the counties of Bergen, Essex, Union, Camden, Passaic, Mercer and Hudson.
The survey also showed that Jamaican posses operated throughout New Jersey. They were reported to be active in the same thirteen counties where African-American criminal groups were reported, as well as Burlington and Cumberland counties. Jamaican posses primarily distribute drugs and traffic in weapons, but they also engage in homicides, robberies, assaults and extortion. In the survey, several agencies reported that Jamaican posses interact with African-American groups in drug distribution, providing them with narcotics and using them for transportation.
Agencies identified Nigerian criminal operations in six counties, Hudson, Essex, Union, Middlesex, Burlington and Mercer. Nigerian groups specialized in various types of fraud, including false bank accounts, writing bad checks, forgery, counterfeiting, credit card fraud and student loan fraud. Local groups are small, but they interact with larger groups on the national level. Those Nigerians involved in the smuggling of heroin and cocaine into the United States have not, to date, been linked to the leadership of the organized Nigerian fraud networks, although both the fraud and narcotics operations have ties to operatives in Nigeria.
AFRICAN-AMERICANS
Organized and powerful, African-American criminal groups have operated in the United States for decades. One of the witnesses at the SCI's public hearing, Donald L. Ashton, Special Agent-in-Charge of the U.S. Drug Enforcement Administration's (DEA) New Jersey Division, testified about his experiences with such organizations throughout the country:
Highly organized, wealthy and dangerous African-American organized crime groups have been around for a long time, particularly in the area of drug trafficking. As an
example, in 1968, while I was assigned to the [DEA's] Pittsburgh, Pennsylvania, office I investigated an African-American heroin trafficking organization which controlled the heroin distribution in Pittsburgh and identified the source of supply for this organization as an individual in New York.
In 1972, while assigned to Cincinnati, Ohio, I investigated an African-American heroin trafficking organization, which also controlled the heroin distribution in Cincinnati. The source of supply for this group was also in New York.
In 1976, while assigned to the Wilmington, North Carolina, office, I investigated a major heroin trafficking organization which was responsible for bringing into the United States thousands of kilos of pure heroin from Southeast Asia during the height of the Vietnam War. Our investigation revealed that this North Carolina-based organization and importer of heroin, consisting of well over 100 members, was the source of supply to both individuals in New York which supplied the organizations I referred to in Pittsburgh and Cincinnati, as well as other groups in Detroit, Baltimore, Philadelphia, Richmond and Norfolk. This organization developed a number of sophisticated methods of smuggling heroin into the United States, most of which were through the U.S. military channels.
They were ex-military, inactive military, most
were master sergeants. They utilized the
military system in a number of different
methods to bring heroin back from South
east Asia. The most notable method, which
made the media, was that they were alleged
to have brought heroin back in the bodies of
dead servicemen.
THE FAMILY (NORTH)
New Jersey has a significant presence of African-American organized crime. A Newark-based cocaine and marijuana trafficking organization, called The Family, operates in several areas of the country. It was headed by Wayne (Akbar) Pray for nearly 20 years until his incarceration in federal prison in 1989 for life, without the opportunity for parole. Pray was convicted for being the "principal administrator" of a substantial cocaine importing and distribution organization. At its height, Pray's group had about 300 members and associates. Newark Police Director Claude M. Coleman testified at the SCI public hearing as to the difficulties encountered in investigating Pray:
For some years … [Pray] was considered to be one of the so-called untouchables, because he never came close to the [narcotics]. He was leading the life of wealth and influence, [but] I think everyone knew that he was involved in drug dealing …. Nonetheless, he had not been … brought to justice, so to speak.
Director Coleman related how Pray built up The Family through "fear, intimidation and violence," directed primarily against rivals for the drug trade. Although the group has continued after Pray's incarceration, Director Coleman described it as "fragmented" with several of Pray's former lieutenants "now dealing on their own as freelancers" and some having been incarcerated.
DEA Special Agent-in-Charge Ashton detailed the past and current status of The Family in testimony at the Commission's public hearing:
… Akbar's African-American organized crime network, called The Family, continues to operate. It is based in Essex County and consists of over two hundred members. Pray's organization started in the early 1970s as [an outgrowth of] the New World of Islam. The Muslim [name] Akbar means omnipo
tent, all powerful, or the great one. In fact, Akbar referred to himself as Akbar Akbar in some cases, or the greatest of the great. He lived up to this name by assuming control over a vast and durable criminal network. The New World of Islam initially focused on supporting bank robberies and even operated a bank robbery school. Pray's drug trafficking venture started out in a small area of Essex County and eventually extended to several states, including Ohio, Michigan, New York and Southern Florida.
At its height Pray's network had at least 12 mid-level supervisors classified by the DEA as Class I violators. A Class I cocaine trafficker is defined by DEA as one who has the capability of distributing at least fifty kilos of cocaine on a monthly basis and manages at least five subordinate drug traffickers.
During Pray's 1989 federal trial for leading a continuing cocaine and marijuana trafficking enterprise, DEA witnesses testified that he was responsible for possessing and distributing approximately 188 kilograms of cocaine in a five-month period between February and June of 1987. In addition, he was responsible for distributing approximately 544 pounds of marijuana during the same period. It is estimated that Pray's organization was receiving millions of dollars of gross income annually.
Pray's organization is presently operating at a much lower and more discrete level with basically the same structure. Reliable sources have indicated that Pray … has maintained his customers and contacts and is still overseeing his drug transactions from prison.
NEIGHBORHOOD CRIME GROUPS IN NEWARK
In his public hearing testimony Director Coleman described several criminal groups that take advantage of drug markets concentrated in certain Newark neighborhoods. He noted that sometimes the territory of one of these groups extends no farther than the environs of a single large building "in the projects."
Paterson Group
Kenneth (KP) Paterson was a Wayne Pray protege who operated a successful cocaine trafficking ring in the Columbus Home projects for many years until the buildings which he controlled were abandoned. Paterson was incarcerated on April 28, 1989, after a conviction for distributing drugs to minors. Estimates of the size of this group range from five street managers and an undetermined number of workers to 20-25 members.
Ratchford Family
This group operates in the area of a single building at 260 Prince Street. Led by Eddie Ratchford, once an associate of Wayne Pray, the group numbers only about 15 members. Director Coleman described the group as "sophisticated" and "rather violent in defending its territory." Eddie Ratchford is presently in federal prison for cocaine trafficking and is scheduled for release on December 17, 1992. His brother, Derrick, is in federal prison for drug distribution and is scheduled for release on October 10, 1991. Two other brothers, Marvin and Willie, continue the operations of the group.
The Brown group distributes drugs in the 17th Avenue area. It occasionally cooperates with the Ratchford brothers, according to Director Coleman, and was similarly led by three brothers. One brother, Ernest (Bo), was incarcerated in state prison for murder on June 25, 1982. Another, Phil, was murdered, and the third, Dennis (Mufee), is presently in charge of the group, which has 20-25 members.
Williams Group
Until he was recently sentenced to 60 years in prison, Roger G. (Little Akbar; Little Ak) Williams led a cocaine and heroin distribution ring, which had at least 30 members and operated in the Prince Street area of Newark. A close associate of Wayne Pray, Williams started his group after Pray's incarceration. The Williams group was recently involved in a turf war with the Ratchford family in the area of 260 Prince Street. The territorial squabbling erupted after a lengthy period during which the two groups respected each other's territory. Williams is presently incarcerated for homicide.
Lee Group
Another group which distributes cocaine in the Prince Street area is headed by Harry (Butch) Lee. The group is composed of 40-50 members. Lee oversees the group from his residence in the state of Georgia. Director Coleman noted that Lee himself is well-insulated from the people that are directly selling the drugs in New Jersey.
THE FAMILY (SOUTH)
Rivaling the power of The Family headed by Wayne Pray in northern New Jersey, another group calling itself The Family distributed heroin and cocaine for nearly 20 years in the Philadelphia area, including southern New Jersey. The group was headed by the late Roland (Pops) Bartlett, a resident of New Jersey, until his federal conviction in the fall of 1987 for conspiracy to distribute heroin and operating a continuing criminal enterprise. He was imprisoned in that case for 35 years with no opportunity for parole. The Family consisted of approximately 60 members and associates, 35 of whom were indicted with Bartlett in 1987.
Bartlett was also convicted in state court on November 29, 1988, for ordering the contract murder of his Willingboro, New Jersey, neighbor. Bartlett was sentenced to life with a minimum 30-year term in December 1988. He died in federal prison on January 15, 1990.
Bartlett cooperated with the Genovese-Gigante crime family of La Cosa Nostra and made substantial investments in legitimate businesses. Much of The Family's income was invested in the corporate entities Bartlett Enterprises, Inc. and Domino Records, Inc. Among the group's known assets were a 60acre retreat in the Pocono Mountains; five houses, two lots and a night club in Philadelphia; a $750,000 home in Cherry Hill; 32 acres in Georgia, and several race horses.
Bartlett group members and associates sold heroin and cocaine to street operatives in Camden and Burlington counties in New Jersey. It has been estimated that The Family grossed close to $7 million per year while it existed.
JUNIOR BLACK MAFIA
Based in Philadelphia, the Junior Black Mafia (JBM) is involved primarily in the distribution of drugs, mainly cocaine. It also offers murder contract services. The JBM cooperates with associates of the Bruno-Scarfo LCN crime family in the distribution of cocaine and appears to have modeled its criminal methods after that organization, relying heavily on violence and extortion to further its drug enterprises.
The JBM came into existence in 1985 to counter a sudden migration of New York-based Jamaican posses into the Philadelphia drug scene. Original members of the 1960s Black Mafia (and later Black, Inc.) organized African-American youths into the JBM to thwart the Jamaican influence and to regain from the Jamaicans control of drug distribution in the affected areas of Philadelphia.
The JBM is estimated to have approximately 100 members and about 300 street-level associates. Its members drive expensive cars and often wear gold jewelry and rings with the JBM initials encrusted in diamonds. Originally, admission into the group required a $1,000 initiation fee, lack of a criminal record and the operation of an established illegal activity.
In Philadelphia the JBM has sought to expand its drug trafficking profits by offering independent narcotics dealers membership in the JBM. The Pennsylvania Crime Commission documented two 1989 incidents in which the JBM targeted for death dealers who turned down such offers.
Information regarding the JBM's influence or activity in New Jersey has been limited due to the lack of a coordinated intelligence collection effort. The Commission has been able to document at least two members and eight associates living in Camden and Burlington counties. On February 20, 1991, five associates of the JBM from Philadelphia were arrested in Camden County by the Philadelphia office of the Drug Enforcement Administration (DEA) while transporting a kilogram of cocaine intended for sale in Philadelphia. Just as the old Black Mafia from Philadelphia eventually spread into Camden, Burlington, Gloucester, Cumberland and Atlantic counties, it is likely that this new group of African-American organized criminals will follow suit.
CAMDEN "SETS"
Three detectives from the Camden Police Department — Leonard Hall, George Joyner and Louis Muzyczek — testified at the public hearing that scattered street-level drug markets in Camden are controlled by organized groups of youthful drug dealers who claim dominance over particular "sets" or areas of operation for drug sales. In response to questions by SCI Counsel Charlotte K. Gaal, Detective Muzyczek described these youth gangs:
Q. What is the age range of these youths? A. Their ages range between 13 and 24 years old
Lewis Tyler Group
In northern New Jersey African-American illegal gambling operatives work with the LCN. For example, Lewis H. Tyler of Jersey City runs a gambling and narcotics operation in conjunction with the Genovese-Gigante crime family.
Eugene Terry Group
Also in Jersey City, Eugene Terry, Sr., is the leader of a black gambling syndicate which also operates in conjunction with the Genovese-Gigante crime family. Terry, along with his brother, Steven (Buzz) Terry, is also involved in the financing of a cocaine distribution network.
Wayne Pack Group
In Trenton an African-American known as Wayne Pack conducts an illegal lottery which lays off to Gambino-Gotti LCN associate Anthony (Pushy) Pulcinello. Under changing leadership, this operation has been in existence since 1954. In its early years, its leaders dealt with the Bruno-Scarfo LCN family.
E'PORT POSSE
At the Commission's public hearing Elizabeth Police Detective Thomas G. Swan testified about a particularly vicious group of young African-American males that operated a cocaine trafficking network in Elizabeth and the Clinton Avenue area of Newark. In March 1988, working with the Union County Narcotics Strike Force and the State Police, the Elizabeth Police Detective Division began making a series of undercover narcotics buys from street level dealers near the Pioneer Homes housing project in Elizabeth. The investigation was dubbed Operation Pioneer.
After search warrants and arrests in November 1988, Detective Swan was able to develop a confidential informant, Mutah Sessoms, who revealed that the vast majority of those arrested in Operation Pioneer were part of organizations controlled by two brothers, Robert and Bilal Pretlow. After the arrests, the two groups merged under the leadership of the younger brother, Bilal. Organization members called themselves the E'Port Posse, Phase II, after the Elizabeth Seaport, and modeled themselves after Jamaican posses, often dressing in flamboyant style, arming themselves with sophisticated weapons and investing in expensive jewelry. Several expensive cars driven by group members were placed in the names of their acquaintances or relatives.
Starting out as a marijuana dealer in high school, Bilal Pretlow eventually grabbed the drug market for his and his brother Robert's organization and ran rival gangs out of Elizabeth, occasionally with shootouts — some in broad daylight. Detective Swan testified as to the grandiose style in which Bilal Pretlow pursued his goal to expand:
Bilal convened a meeting of drug dealers from all over Elizabeth in a central New Jersey restaurant. There he indicated his intention to control drug trafficking in the Elizabeth area and threatened that those who would not go along would face reprisals.
Detective Swan testified that the group's cocaine supply came from a Dominican by the name of Benson, who was located in New York City. The cocaine was generally transported to Elizabeth in taxi cabs. In 1989 the group was distributing kilograms of cocaine resulting in profits up to a hundred thousand dollars a week.
Law enforcement strengthened its resolve to deal with the E'Port Posse as the violence surrounding its operations escalated. Mutah Sessoms, the informant, was murdered in June 1989. Robert Pretlow was slain by a rival gang on July 9, 1989. The next day, a third Pretlow brother, Thomas, killed Bobby Ray Davis, a Newark drug trafficker with designs on the Pretlow turf, in retaliation for Robert Pretlow's death. The federal Drug Enforcement Administration, Union County Sheriff's Office, Newark Police and Essex County Sheriff's Office joined the Elizabeth Police, State Police and Union County Prosecutor's Office in the investigation. Sessoms' description of an organized criminal enterprise was taken seriously at all levels.
Detective Swan testified how Bilal Pretlow continued to run the operation even while incarcerated:
At the time of the November 1988 and subsequent arrests, Bilal Pretlow had paid bail and attorneys fees for his group members. While in the Union County Jail on various drug charges, he continued to run his organization by calling telephones equipped with speed dialing, call forwarding and conference call capabilities. Telephone toll records to the apartment used by Shawn Hartwell, his first lieutenant who ran the operation in his absence, showed nearly 400 collect calls from the Union County Jail from December 1988 to early February 1989. Many of these calls were for extended periods of time. Some lasted more than an hour. We had one or two going into three and a half hours.
Normally the inmates are allowed use the public telephone at the jail during a specific eight-hour period, and each is restricted to approximately five, maybe ten minutes at a time. Bilal Pretlow, however, ingratiated himself with other inmates by getting his underlings to post bail for them. He bought them gifts and promised them jobs upon his release. Those jobs were in his drug distribution operation. In one instance he bought $70 Reebok sneakers for all the inmates on his tier, which numbered in excess of thirty-five. The inmates returned favors by giving up their allotted telephone time to Pretlow. This alone, though, does not adequately explain to us … the extensive use of the telephone [from the jail].
On January 18, 1991, Thomas Pretlow was convicted of manslaughter in the fatal shooting of Bobby Ray Davis. Federal charges brought by the United States Attorney for New Jersey are pending against Bilal Pretlow and eight other members of his group. Bilal Pretlow faces the death penalty on two of the charges brought under a new federal law which provides for capital punishment for persons convicted of drug-related murders. He is presently scheduled to begin trial in federal court in Newark on March 26, along with eight other members of his group charged with participating in the drug ring and various other offenses. Bilal Pretlow is presently serving a 20-year sentence in state prison stemming from a drug trafficking conviction in November 1989 arising out of Operation Pioneer.
In December 1990 Husamiddi Williams was sentenced to 13 years in federal prison after pleading guilty to charges of possession of cocaine with intention to distribute and possession of weapons in furtherance of illegal drug activity. Williams ran a "franchise" at Sixth and South Park streets in Elizabeth for the E'Port Posse for more than a year until he was arrested in August 1989. He employed at least four juveniles to assist in the drug sales. Williams was apprehended by Elizabeth detectives after a shootout between Williams and rival drug dealers.
Detective Swan testified that police seized $270,000 in cash, 19 guns, five cars and about $30,000 in jewelry from Bilal Pretlow and his underlings.
ISAAC WRIGHT GROUP
Somerset County Prosecutor Nicholas L. Bissell, Jr., testified at the Commission's public hearing about the operations of a cocaine trafficking ring that plagued housing projects in Somerset and Middlesex counties. He described how various law enforcement agencies first came into contact with members of the group and how this led to a successful cooperative effort to short circuit its operations and bring its alleged leader, Isaac Wright, Jr., to trial:
Q. Please describe the operation of [the Isaac Wright] group and the roles played byvarious individuals in it and the efforts by law enforcement to discover it and curtail its activities.
A. Yes, sir.
Q. Did your office cooperate with other law enforcement agencies in the investigation of the Wright group?
A. Yes, we did. [As] the scope of the operation was revealed, … we contacted the agencies from those various localities and jurisdictions. And the first that we were involved with was the Middlesex County Prosecutor's Office. And this operation became a joint operation with that office. And as the investigation expanded we became involved with the Passaic County Prosecutor's Office, the Franklin Township Police Department, the New Brunswick Police Department and the New Jersey State Police, as well as the Essex County Sheriff's Narcotics Unit.
This operation led to the [formalization] of the relationship between our office, Middlesex County Prosecutor's Office, Franklin and New Brunswick Police Departments. And we formed a unit known as the Border Anti-Drug Team [BAT] to deal specifically with this investigation and with successor organizations. Essentially [the BAT] unit provides personnel from each of the offices that I mentioned to work in a specific area and on a specific problem. So we have a BAT unit, if you will, that exists that deals with the Somerset, Middlesex, Franklin Township, New Brunswick border, and recently we've expanded that to the eastern portion of Somerset County where we share a border with Union County. And the Union County Prosecutor's Office, along with the Middlesex County Prosecutor's Office, our office, North Plainfield, Plainfield, South Plainfield and Piscataway Police Departments, and I believe also Edison, have provided personnel. And we formed that unit to do the same thing in that area.
Q. This BAT operation is ongoing, then?
A. Yes, it's ongoing in two areas. And what it does is it allows these units to focus on a particular problem in a particular area without being concerned about being moved because of resources or other demands or other … law enforcement problems that may exist.
Q. Did electronic surveillance help in bringing down the Wright group?
A. Yes, this group was unique because they did not operate from a fixed location. They essentially operated out of the automobiles that Wright leased for the members of the group, and they contacted each other by use of cellular telephones and telephone paging devices. So, we obtained a court order, and with the help of the State Police, who provided us the technology, we were able to bug two of the vehicles. And those bugs led significantly to the results of this investigation.
For example, without the bugs we would not have been able to know when Wright was meeting Alexander on July 25, [1989], for the pick up of the narcotics and we would not have, in all probability, been able to not only arrest Wright with [the] product, but also to arrest Alexander and then get a search warrant, execute that search warrant on his house and seize yet another three kilos of cocaine….
Q. Now, when you talk about the electronic surveillance, did the State Police supply the expertise and you supplied the equipment?
A. Yes. What happened was we contacted the State Police because … our people knew what we wanted to do, but we didn't have the technology, and the State Police Electronic Surveillance Unit provided us with the know
Clarence 13X's teachings included the dogma that 85 percent of the world's population are blacks who, like cattle, have strayed away from "true teachings." Ten percent are the white "devils," who are not to be trusted. The remaining five percent are the "pure righteous teachers" or "originals," who must lead the cattle back to the "true way." Thus, the group came to be called Five Percenters or Gods. Some Hispanics and Sicilians are allowed into Five Percenter groups, as they may be considered to be "half-originals," tracing themselves to black ancestry or relations.
In the 1980s the Five Percenters migrated from New York to New Jersey and several other states. They became active in Asbury Park, Long Branch, Red Bank, Freehold Borough, Bradley Beach, Aberdeen, Lakewood, Matawan, Elizabeth, Linden, Irvington, parts of Newark, Jersey City, Camden, Atlantic City, Trenton, Paterson, Plainfield, Mount Holly and Pemberton Township. They are presently concentrated in Monmouth and Ocean counties with approximately 14 chapters numbering about 300 to 400 members in Monmouth County, according to Detective Jordan.
In addition to developing a prejudiced and demeaning cultural dogma, the Five Percenters became a haven for those engaged in criminal activities, primarily narcotics distribution.
Investigator Jordan testified that investigations have revealed Five Percenters "involved in everything from criminal mischief to murder, arson, burglary, robbery, aggravated assault, possession of a weapon …." He emphasized that religious teachings are only a nominal part of the movement:
Q. Since they are an offshoot of a religious movement, we should clarify one thing. Are all Five Percenters involved in violence and crimes?
A. No, they are not.
Q. How many would you say are?
A. I have met, in my experience since 1980, of tracking, two families that have not been involved in any way, form or fashion with the negative aspects. However, the rest I've found to be all involved in criminal activity ….
Q. When you say families, you mean —
A. Mother, father, children.
Under questioning by SCI Deputy Director and Counsel Robert J. Clark, the disguised witness testified about the difference between Five Percenters involved in criminal activities and those who are not:
Q. Are Five Percenters involved in criminal activity?
A. Five Percenters are involved in drug sales, sales of guns, robbery, stolen cars, chop shops, murder, all types of criminal activities.
Q. Can a Five Percenter choose not to be involved in criminal activity?
A. Yes, he can.
Q. What would this be called by the movement?
A. He would be leading a pure righteous life.
Q. So the pure righteous life is a Five Percenter who is not involved in criminal activity?
Q. How many of the Five Percenters that you know live the pure righteous life?
A. About 15 percent.
Investigator Jordan detailed how Five Percenters spread their doctrine and expand their criminal activities:
Q. We've heard of operations called universal rallies. Could you explain what that is?
A. That's normally a place set up by someone in that movement where they go and they have meetings. One of the key places where they go to have these rallies is in New York City. We have also tracked them since 1980 as having their rallies down in Florida, Great Adventure in Jackson [Township, New Jersey] and also several parks [within] the State of New Jersey, such as Shark River Park in Neptune and several other parks in Monmouth, Middlesex and Ocean counties.
Q. What is the purpose of these rallies?
A. The purpose is supposedly to educate the young men [and] young women in the better understanding of their culture. We have found that a lot of them are involved in narcotics trafficking, … that is, that they are going out, instead of attending the meetings, for example, the bus takes them from here to New York City, some will attend the rallies, the others will stray away and be involved in a lot of narcotics trafficking and bringing the drugs back across the line.
Q. Are these places where they learn techniques for the distribution of narcotics?
A. They learn that, as well as New Jersey, New York and Pennsylvania law.
Q. Learning the law is a means of protecting themselves against it?
A. That's very true.
The disguised witness elaborated on the activities at the Five Percenter universal rallies:
Q. You said rally?
A. Yes, sir, [they] usually go to the rally in Central Park in New York City.
Q. Do people from New Jersey attend these rallies?
A. Yes, they do.
Q. Five Percenter members from New Jersey?
Q. What is the purpose for a rally?
A. To bring out existence, to gain knowledge of self.
Q. Is there any other purpose for these rallies?
A. Certain members use the rally for certain things like to make connection for drugs, guns or whatever they into at that time.
The Five Percenters have run into some barriers to the spread of their organization. In answer to Commissioner Kenneth D. Merin's questions, Investigator Jordan testified that Five Percenters "initially … would go in and set up in places where there is a constant denial of their existence, just giving them a lever to operate, if you will …." He explained one reason why they are not well-established in some places, such as Newark:
[I]n Newark there is the Muslim faith, which is very strong there, as well as in New York; and they denounce what the Five Percenters are doing. And as a result of that it is very difficult for the Five Percenters to get a foothold. You have to understand also that it is taboo in the Muslim faith to call yourself a god, so here you have these gentlemen calling themselves gods and the Muslim community just does not want to hear that, so they denounce what they are doing.
Investigator Jordan described the subservient role of women in the organization:
Women, for the most part, are basically an auxiliary. They are used, for the most part, to be impregnated, to have the children … to keep the movement going. … [W]e've found that [those on welfare or state aid turn it] over to the movement. Part of that is then given back to them. A majority of it is turned over into narcotics trafficking ….
Five Percenters are apparently not consistently responsive to a centralized leadership. Leaders in the movement may be called ministers, Allah, Father Teacher, Father Allah, and the like, according to Investigator Jordan. The disguised witness further described the leadership and organization of the Five Percenters and the division of profits from illegal activities:
Q. What happens to the proceeds of Five Percenter criminal activity, that is the money that is earned?
A. It goes to support the Five Percent Nation. The money from the criminal activities is shared among the members.
Q. Are the profits passed up to a leader?
A. There is not really one certain leader. [They] are more of a group activity.
Q. Are there people called kingpins?
Q. And do they operate in different areas?
Q. Do they receive a share of the profits?
A. Yes. …
Q. Who decides what type of crimes a particular group of Five Percenters will commit?
A. It's usually a group activity. Someone decides to do a certain crime, and the rest agree. It's like a Mafia type thing where they are all a family and they make a decision as a group.
… A. Asbury Park.
Q. Could you give their righteous names?
A. King Nijee and Knowledge Supreme. …
Q. Have both these kingpins been involved in drug distribution?
Q. What kind of drugs have they sold?
A. Whatever the traffic demands they sell, but it's mostly cocaine and marijuana.
Q. Where do they get their supply of cocaine?
A. They go up to, like 135th Street or 185th Street, Upper Manhattan or the Bronx and buy the cocaine from the Dominicans.
Q. Where do they get their supplies of marijuana?
A. From the Jamaicans in Queens and Harlem.
Q. Are any of these Jamaicans Five Percenters themselves?
Q. Would you say that the Five Percent Nation is an organized crime group?
Q. And why would you say that?
A. They sell drugs, they steal cars, they do burglaries, commit murder, they have police working for them. I guess you could say they were an organized crime group.
ll be five more people … out there to
replace them.
GAMBLING RINGS
Historically, many ardent supporters of illegal
numbers gambling were in the African-American
community. Illegal lottery operations run by Afri
can-American groups continue to thrive in New
Jersey's urban areas despite the existence of a legal
state lottery. Unlike the state lottery, illegal lottery
operations have no minimum wager. They also offer
better odds and extend short-term credit to the
bettors. Finally, convenience and cultural traditions
play a role in the continued existence of illegal
Leonard Jones Group
Over the decades, the illegal lotteries and num-
bers games were actually controlled by La Cosa
Nostra, and black operatives worked within the
framework established by them. Today, LCN con-
trol has begun to diminish in some areas of New
Jersey.
Leonard A. (Benny the Bum) Jones has operated
an independent black numbers gambling network for
years in Camden, Burlington and Gloucester coun-
ties. In 1989, the New Jersey State Police arrested
Jones and several of his underlings for operating an
illegal lottery. They were subsequently indicted by a
state grand jury on July 19, 1990, for operating an
illegal lottery. The case is awaiting trial. Based on
the records seized at the time, it was estimated that
Jones' operation netted over $1 million per year.
Gilbert Young Group
Another numbers operation in Camden County is
run by Gilbert R. (Buck) Young. Young is associ
ated with Frank A. DiSalvio, an associate of the
Bruno-Scarfo organization of La Cosa Nostra, who
last year fled New Jersey to avoid an SCI subpoena.
The group lays off bets to the Bruno-Scarfo mob.
further cover the nature of the operation.
Q. What's the status of the Wright group
A. … [T]welve people were arrested as a
result of this operation. With the exception
of Wright, who is awaiting trial, and Earvin,
who will shortly enter a guilty plea, all others
have entered guilty pleas, with the exception
of two whose charges were dismissed. They
were relatives of Alexander who were ar-
rested when his house was searched and the
cocaine was found and his guilty plea exon-
erated them from involvement.
Q. Wright still faces jail time?
A. Yes, he's in the Somerset County Jail and
awaiting a trial scheduled for [early] 1991.
FIVE PERCENTERS
At its public hearing the SCI heard testimony
from an electronically disguised former member of a
group which variously calls itself the Five Percenters,
the Five Percent Nation or the Gods. Also, Louis L.
Jordan, an Investigator wit
While testifying specifically about the Five Percenters, Investigator Jordan described the gang problem in general. He noted that although there are about 14 Five Percenter chapters in Monmouth County, there are approximately 68 gangs in that county involved in criminal activity.
Investigator Jordan is a member of Concerned Officers Organization On Gang Activities (CO3GA or COOOGA). He outlined the organization's structure and activities at the Commission's public hearing:
Q. What is that organization and what does it do?
A. [CO3GA] was … started in 1980 by four concerned police officers, from the Asbury Park and Neptune Police departments who felt that gang violence was on the rise, who also felt that there was a lot of denial with respect to the growth of gangs, and who felt this was a contributing factor to the tremendous drug problem that we have in our state today, that constant denial. … [T]he Concerned Officers Organization basically tracks gangs. What we do is monitor groups that are out there, youth groups, as well as adult groups, and if we find that they are involved in gang activity or they take up criminal activity, we inform not only the local police department, but the community as a whole.
Q. This is a non-profit organization?
A. Non-profit, self-supporting, civilian-run organization that also does a lot of counseling with gang members.
Q. Does it have any ties to law enforcement, aside from the members being from law enforcement, a lot of them?
A. No ties.
Q. Are the members of this organization both black and white, male and female?
A. That's correct.
Q. And it works with civic organizations?
A. Yes, we will work with any organization that is in the State of New Jersey or elsewhere to help combat this juvenile delinquency problem or gang problem.
Q. Does it work with law enforcement agencies?
A. Yes, sir, definitely.
Q. In what capacity?
A. Seminars, training, identifying active gang members that are involved in an ongoing investigation of crime where a pattern has been set.
Q. And this organization studies gangs that are not just Five Percenters, is that right?
A. That is correct.
Investigator Jordan elaborated on CO3GA's
definition of a gang and described the various types
of gang leadership encountered:
Q. In general, is there a definition that you use to describe a gang …?
A. Yes, we say that there must be four elements that must be met … for them to be classified as a gang. The first one is they must have an identifiable leader. That leadership structure, weak or structured in nature, must be there.
[Second,] we say that they must have a
geographic area or turf that they call their
own. [Third, w]e say that they must meet on
a continuous or regular basis. [The] fourth
element certainly must be there, and that is
that they must be involved in juvenile delin
quency or criminal activity. If you have all
four of those elements you have what we call
the working definition of a gang.
h the Monmouth County
Prosecutor's Office with extensive experience in
tracking the group's members and activities, testified
at length.
Particularly troubling about the Five Percenters
is the existence of racist attitudes and criminal activi
ties behind the facade of a culture with religious
overtones. The dogma underlying the group origi
nated in New York City in 1964 when the late
Malcolm X expelled the late Clarence 13X from the
Nation of Islam (better known as the Black Muslims)
for adulterating the beliefs of that movement. While
the Muslims believe that blacks should respect them-
selves and their fellow human beings and that blacks
should take their rightful place in society, Clarence
13X postulated that black men (not women) are
gods, that black men are the sole creators and con
trollers of the Earth and that whites are devils.
Investigator Jordan described how localities can
determine if they have a Five Percenter presence:
Q. How do you, as a law enforcement
member, identify a Five Percenter or an
eous names.
Q. Do some gangs that are not composed of
Five Percenters adopt some of the trappings
of Five Percenters in order to make them-
selves more intimidating?
A. Yes, we have that, as well, where we have
gang members that … call themselves Five
Percenters, even though they are really not,
just because the Five Percenters are basi
cally the dominant gang in Monmouth
Q. Have you heard of a term, Jive Percen-
ters?
A. Yes, I have. Those are what … some true,
so-called, Five Percenters say are the ones
who are just setting a name for themselves,
who are actively involved in all the different
types of crimes and so forth.
One multi-kilo cocaine distribution network in
Atlantic City had substantial connections to the Five
Percenters. Its leader, Hakeem Abdul Shaheed (aka
Robert E. Molley or Midget Molley), and most of its
60 some members were Five Percenters. Shaheed, a
resident of Vineland, called his group the Aso Posse
and often flaunted his drug-financed wealth by wear-
ing a gold crown.
Victor (Shorty) Fernandez, a Dominican who
lived in Edgewater, New Jersey, was the principal
supplier of cocaine to Shaheed's organization. In
February 1989, Shaheed, Fernandez and 18 mem-
bers of the Aso Posse were arrested by federal
authorities, who estimated that Shaheed's organiza-
tion was obtaining and distributing $1 million worth
of cocaine per month in the Atlantic City projects.
Shortly after Shaheed's arrest, several Jamaican drug
dealers from Brooklyn moved into the Atlantic City
projects to take over his territory. Shaheed was
convicted, and on January 22, 1990, he was sen
tenced to 19 years in prison.
than others?
A. Yes, there are. At present we are in court
with several. On the street now, at least in
Monmouth County, there are not too many.
Most of our leaders are incarcerated or
pending trial, but we do have several on the
street that are out there that are trying to
build themselves to take over the leaders'
JAMAICAN POSSES
Born in the poverty and political turmoil of
Kingston, Jamaica, violent, structured organized
crime groups spread to the United States during the
last two decades. Jamaican criminal gangs adopted
the term "posse" because of their fondness for Ameri
can western films and because the word connoted the
use of violence to enforce political will and to protect
neighborhoods from intrusion by rival gangs. Each
posse eventually came to be structured, with a par
ticular leader — sometimes called a general — and
alien smuggling and money laundering.
The two largest Jamaican posses are Shower and Spangler. Many of the active posses in the United States are spin-offs from these two. Traditionally, the Shower and Spangler groups have been bitter enemies because of their political differences. Members of the Shower Posse are avid supporters of the Jamaican Labor Party, while Spangler Posse members have been solidly behind the opposition Peoples National Party.
Typically, posse members and associates use aliases, nicknames and false identification. Most who enter the United States are here illegally. They are very adept at obtaining phony drivers licenses, birth certificates, passports, citizenship cards and naturalization certificates. They are also very mobile.
Under questioning by SCI Deputy Director Clark, a disguised Jamaican posse associate testified about the posses' operations in New Jersey:
Q. Where in New Jersey were the posses active?
A. Well, [there are] different posse figures from different groups, and they are active in East Orange, Englewood, Paterson, Newark and I would say to a lesser extent in Hackensack. Also in Port Elizabeth there are a lot of posse figures in that area who are involved in smuggling marijuana, I would say with the help of the Jamaicans who work on the docks, because many times the cargo containers would be used to hide shipments of marijuana.
Q. In what particular types of criminal activity are the posses involved in New Jersey?
A. Sir, New Jersey [was] always considered to be a safe place to hide from the New York police and a very good place to stash marijuana, weapons. During the '70s and early '80s New Jersey was always considered and used as a safe area.
Q. Why was New Jersey considered to be a safe area?
A. Police in New Jersey did not take posses seriously at the time and, as a matter of fact, … I don't think that they even knew that they existed.
Q. That the posses existed?
A. Yes, sir. We would use hotels and motels specifically in New Jersey on Route 4 to keep marijuana and later distribute it back over into the New York area.
Q. What area in New Jersey has the highest amount of Jamaican posse activity?
A. Well, from my experience personally I would say that Paterson is the number one area in New Jersey, you know, and also places like East Orange.
Q. Why Paterson?
A. Maybe because posse members, they have relatives that live in the Paterson area and East Orange, you know, and because of this it was always a good area to hide out, you know.
Q. Is that also true for East Orange?
A. Certainly, sir.
The Federal Bureau of Alcohol, Tobacco and Firearms (ATF) estimates that there are at least 40 Jamaican posses with more than 13,000 members operating in the United States. The SCI has positively identified five posses that presently or in the past have operated drug distribution networks in New Jersey: Shower, Spangler, Dunkirk Boys, Tel Aviv and Waterhouse. Members or associates of other posses who are not aligned with an operational drug network have also been arrested in New Jersey. Similar to many La Cosa Nostra operatives who live in New Jersey and conduct their criminal activities in New York, many Jamaican posse members whooperate drug distribution networks in New York have chosen to live in New Jersey. In addition to the posses already mentioned, members of the Paineland and Two Mile posses have been identified as living in New Jersey.
SHOWER POSSE
The Shower Posse originated in the Tivoli Gardens section of Kingston around 1981. Its members have been avid supporters of the Jamaican Labor Party (JLP). Its name derives from its reputation for showering its victims with bullets. In September 1988 a federal grand jury in Miami indicted 34 members of the Shower Posse, including Lester Lloyd (Big Jim Brown) Coke, the top leader in Kingston, as well as Vivian Blake, the top leader in the United States. Coke is scheduled for an extradition hearing from Jamaica. Blake is still a fugitive. Intelligence information indicates that in September 1989 he had been in Atlantic City for less than 24 hours before departing for Toronto and then to Jamaica.
Shower Posse networks are involved in the sale of cocaine and marijuana in the New Jersey cities of Newark, East Orange, Irvington, Camden, Atlantic City, Vineland, Trenton and Bridgeton. Recent arrest statistics indicate that the number of Shower Posse members operating within the state is growing. As of November 1988, 53 Shower Posse members had been arrested in New Jersey for involvement in drug distribution. In 1989, the number of members identified increased to 75.
SPANGLER POSSE
The Spangler Posse originated in the Matthews Lane area of Kingston, and its members have traditionally supported the Peoples National Party (PNP). The late Glenford (Early Bird) Phipps headed the New York City-based operations for the Spanglers, along with the recently murdered Toywell (Cow) Phillips, who also controlled drug distribution networks in Englewood and Paterson in New Jersey. Under investigation by New York authorities, Toywell Phillips fled back to Jamaica in early 1989. Some law enforcement officials believe that the new leader of the Spanglers in New York City will be from New Jersey. According to the disguised Jamaican witness and several other sources, the leader of the Spanglers in Jamaica is an individual named Dannie Dodd. Glenford Phipps was murdered in Kingston on July 15, 1990, while acting in his capacity as Supervisor of Metropolitan Parks and Markets in Kingston. Toywell Phillips was killed on December 1, 1990, in Jamaica, reportedly on orders of Lester Lloyd Coke, the leader of the Shower Posse in Jamaica.
Spangler Posse networks distribute primarily marijuana, cocaine and crack in Paterson. Intelligence indicates that Spangler members in New York City continue to supply marijuana to associates in Trenton and Camden. The number of Spangler Posse members identified as operating drug distribution networks in New Jersey in 1989 was 45, an increase from the 27 reported in 1988.
DUNKIRK BOYS POSSE
The Dunkirk Boys Posse, also known as Kirkys, has been under the leadership of Dennis (Stickman) Smith since 1977. Traditionally, this posse has been mixed politically, but has many members who support the PNP in Jamaica. From 1987 through 1988, the Dunkirk Boys in New York City were at war with the Spangler Posse, but within the last two years a truce has been declared.
Some members and associates of the Dunkirk Boys who did not wish to participate in the New York war moved into Englewood, New Jersey, in 1987, selling marijuana, cocaine, crack and weapons. However, the group has been virtually eliminated from that area because of arrests of their street dealers and mid-level suppliers by the Englewood Police Department and the Bergen County Narcotics Task Force. Ledlo (Blacker) Gillings, who operated in conjunction with this cell of Dunkirk Boys, was sentenced to federal prison on March 3, 1989, on charges of conspiracy to distribute cocaine. The other members of this cell split, some moving theiroperations to Boston, others to Richmond, Virginia.
Intelligence information indicated that in 1988 several members of the Dunkirk Boys who left New York City went to the New Brunswick area. These persons, who were only known by their street names, were not reported to be involved in drug distribution. Instead, they were using New Brunswick only as a safe area.
There were 29 members and associates of the Dunkirk Boys Posse identified as operating or controlling drug distribution networks in New Jersey in 1988. At the present time, however, there is no known network of this posse actively operating in New Jersey.
TEL AVIV POSSE
In the late fall of 1989, information was developed regarding known members of the Tel Aviv Posse operating in Paterson. This posse originated in the Tellerville section of Kingston, where it was initially known on the streets as the Skulls. Its members support the PNP, and they have been known to associate closely with members of the Jungle Posse. The Spangler Posse has long operated several drug distribution networks in Paterson, and it appears that they are operating independently of and not in conflict with this new posse. Since the Spangler, Jungle and Tel Aviv posses are all supporters of the PNP, it is possible that they are working together.
The disguised Jamaican witness identified the leader of the Jungle Posse as Tony (Red Tony) Welsh of Miami. The SCI has corroborated this information from additional sources.
WATERHOUSE POSSE
The name of this posse derives from the fact that many of its members are from the Waterhouse area of Kingston. Members and associates of the Water-house Posse have been arrested in Jersey City and Mount Laurel in the past. Between 1983 and early 1985, a small cell of the Waterhouse Posse operated a marijuana distribution network in Trenton. The principal operatives of this network were Dennis Derrick Dobson and Daniel Augustus Comrie, both of Willingboro, who were arrested in 1985 for attempting to bribe a Trenton police officer to protect their operation on South Clinton Avenue. On June 4, 1990, Dennis Dobson was arrested by police in Bristol Township, Pennsylvania, for operating a cocaine and crack distribution network out of the Venice-Ashby housing project in the township. Dobson's operation sold cocaine and crack through street operatives in Lower Bucks County, Pennsylvania, and Trenton, New Jersey.
Since about 1989, the term "posse" has become popular with non-Jamaican gangs, due to the publicity surrounding the Jamaican groups. In many urban areas, for instance, African-American youth gangs have adopted the term "posse." On February 15, 1991, several members of a group comprised of both Jamaicans and African-Americans were arrested on drug and weapons offenses in Trenton. The group, calling itself the Suicide Posse, had been active in the western section of the city selling marijuana.
Meanwhile, many of the real Jamaican posses have started calling their groups "massives." Many of the second-tier members have started using the term "crews" to describe their cells or drug distribution networks. For example, at the SCI's public hearing the disguised Jamaican witness identified a New York City group, calling itself the Tower Hill Crew, led by a Jamaican named Bonnie Wizzie.
By the end of 1989, entrepreneurial considerations had become more important than political allegiances in running the posses. As members of the old guard of the posse leadership are either killed or jailed, younger members, some of them second generation immigrants less attuned to the gang warfare and politics of Kingston, are taking over. The emphasis now is on practical concerns such as who is able to supply the drugs and at what price. The disguised Jamaican witness described some of these trends:
I feel the future of the first generation members connected to Jamaica is very, very dim. [A]gain they are beginning to run back to Jamaica due to the heavy sentences that … they are getting in the U.S., you know. Some of, I would say, the second generation are involved in the same, just as they pose more [of a threat] as far as they are concerned, because they know more about the American justice systems … because they were born here. They are American citizens, but from Jamaican parentage, you know.
This does not mean that a posse member in the United States no longer cares who is in power in Jamaica. On the contrary, politics affects his relatives and friends in the old neighborhood in Kingston. What this does mean is that the new Jamaican immigrants connected to a posse think more of the bottom line as they assume leadership roles in their gangs rather than of political labels as their elders did.
Law enforcement has even reported former enemies, such as Spangler and Shower posse members, working together in drug deals to increase profits for their common benefit. Within the next three years, as posses are dismantled by law enforcement, the younger members will splinter into smaller groups and operate their drug networks on a regional level rather than on the expansive levels that the posses now operate. This move toward independence will create additional problems for law enforcement, since drug quantities available for seizure will become smaller and the targets will therefore seem less significant. These separate cells or crews will utilize the same sources of supply as their predecessors and will also have adequate manpower for their street sales by smuggling illegal aliens from Jamaica. It is also most likely that these youths will expand their legitimate business operations beyond the ethnic grocery stores or record shops into more Americanized, large investment enterprises such as automobile leasing or dealerships, trucking or travel agencies. In fact, examples of this probable trend are beginning to occur in Florida and New York.
Although powerful, secretive and mobile, Jamaican posses are not invulnerable to law enforcement efforts. In a successful federal-local cooperative effort, in December 1990, virtually all of the 42 alleged members of the Jamaican Gulleymen Posse were indicted by a federal grand jury in Brooklyn. The indictment named 35 people on narcotics conspiracy charges, 16 for money laundering and three on fraudulent passport charges. Included in the indictment was a State Department employee who allegedly helped the gang members obtain fraudulent passports. The case was broken with information provided by several gang members now serving life sentences on guilty pleas to various crimes, including murder. The gang reportedly took in more than $100 million from sales of heroin, cocaine, crack and marijuana in New York, Washington and Dallas over the last five years and carried out at least 10 murders on orders of its leader, Eric Vassell, currently believed to be in hiding in the New York area.
In November 1990, a Burlington County grand jury indicted six people who allegedly operated a Jamaican marijuana smuggling ring from a home in Willingboro. This group was supplying much of the marijuana to Shower Posse members and associates who operate and staff Jamaican crack houses in West Philadelphia and the Germantown section of Philadelphia. The Willingboro Police Department, Burlington County Prosecutor's Office, State Police and SCI cooperated in a yearlong investigation of the operation, which at its height spent $60,000 to $80,000 to purchase about 200 pounds of marijuana per week. The alleged leaders of the drug distribution network were Dawn Patricia Ulett, her sister Sonya Henry and her husband Milton Anthony Hylton. From the "control point" in Willingboro, couriers were given money to purchase marijuana in Houston, New York, Tucson, Los Angeles, Jamaica and Mexico. The marijuana was stashed in rental apartments in Philadelphia, before being distributed out of Hylton's Philadelphia residence to customers in South Jersey and Pennsylvania.
Willingboro is also the base for an alien smuggling ring which supplies much of the manpower tostaff the various crack houses for the Shower Posse in Philadelphia.
Under questioning by SCI Counsel Gaal, Detective George Joyner of the Camden Police Department testified about Jamaican posse involvement in drug trafficking in Camden:
Q. Is the Jamaican criminal activity in Camden organized?
A. Yes. The term … posse …, picked up by our local drug … sets, … [originally came] from the Jamaican posses.
Q. In what types of criminal activity are the Jamaican posses involved?
A. They deal basically in the sale of marijuana and cocaine, and they've also been involved in numerous weapon violations.
Q. Have you been able to identify the Jamaican gangs that operate in Camden?
A. [I]ntelligence information has identified elements of the two major [Jamaican] posses …, which [are] Spangler and Shower, but at this time the term posse, as an individual group, is fading away and what you are seeing now is the search for the money. Everything is developed on the profits.
Q. Do these Jamaican drug dealers interact with any of the African-American sets or other operations in Camden?
A. Yes, several of the Jamaican drug dealers do interact with the sets in Camden by selling marijuana. In addition to their own sources of supply for cocaine in New York City the Jamaican dealers in Camden have obtained cocaine from members of the Junior Black Mafia operating out of Philadelphia, and they also maintain their own marijuana supplies.
Q. Is there any particular set in Camden with which Jamaican posse figures have establisheed ties?
A. Yes, there appears to be a close relationship between one of the principal Jamaican dealers and the 24th and Hyde Street set.
Q. How do the Jamaican drug dealers launder their drug profits?
A. Within the last two to three years the Jamaicans involved in drug distribution have tripled their legitimate business operations. They own and operate several bars, clothing stores and small food stores in the Camden area.
Q. Approximately how many Jamaican posse members or associates are involved in either cocaine or marijuana distribution in Camden?
A. I would estimate at least one hundred individuals are involved with the Jamaican drug trade in the Camden City area.
Commissioner W. Hunt Dumont asked Detective Joyner to elaborate on the influence of the Jamaicans in Camden:
Q. Do the Jamaican groups … cooperate with these other non-Jamaican groups in Camden? Do they divide up the territory or is this not as organized as that?
A. They are extremely organized. They are nationally connected. As a matter of fact, I would even go as far as to say internationally connected as far as the United States. Their network is as far reaching from Camden as Texas, Florida, Baltimore, New York, Kansas City. I keep in contact with numerous officers that are running into Jamaicans who are showing up in their territory that are giving Camden addresses, et cetera. In reference to the specific group in Camden, they specialize in quiet takeovers.
Q. What do you mean by that?
A. A quiet takeover, they do not have to come in and shoot up an area, beat uppeople, and things like that to take over. They move in,I don't know whether they negotiate, they buy a property, they centralize themselves in an area, they attach themselves to the locals from the area and then begin to use them and then at one point they become at a higher level and just fade out of the picture, but they are still in control and this is what has happened in the Camden area. It took somewhere around the neighborhood of 10 years for this to develop to this point.
NIGERIANS
Bernard J. Murphy, Assistant Special Agent-in-Charge of the Newark office of the FBI, testified at the Commission's public hearing about highly mobile Nigerian criminals engaged in organized schemes to defraud banks and other financial institutions. Special Agent Murphy detailed several examples in which Nigerians, using high quality fabricated identification, engaged in sophisticated frauds in New Jersey:
In early 1987 a group of New Jersey bankers requested FBI assistance in investigating a series of frauds which were being committed by Nigerians against New Jersey financial institutions. Upon our initial investigation these crimes appeared to be widespread and isolated. However, a detailed examination of the individual frauds revealed a complex scheme which employed similar styles, all of which were interconnected.
A detailed examination of one of these frauds revealed that an individual using an alias opened accounts in four banks in Marlboro, Old Bridge and Freehold, New Jersey. All of the accounts were opened with a minimal cash deposit, normally fifty to a hundred dollars, and [each] bank was provided with a home address, place of employment and a New Jersey photo driver's license for identification. The customer also requested and received an automatic teller machine [ATM] card for [each] bank account. The banks followed their normal procedure for new account verification, did not develop any invalid information which would cause them to close the accounts and, therefore, opened [the] accounts.
Shortly after the accounts were opened, a series of checks drawn on banks in Florida, Georgia, Maryland and New York were deposited into these accounts via the ATMs. The accounts were monitored remotely via ATM, and when the money was released into the account the Nigerian visited several branches of each bank during a two to three day period and withdrew the majority of the money. [Finally, a]ll of the deposited checks were later returned unpaid causing the banks to suffer losses.
The investigation revealed that the address given by the Nigerian customer was, in reality, a self-storage facility. The self-storage facility also offered private mail receiving services. The employment that he had provided was contacted by the bank, and it was determined to be a telephone answering service that verified employment. The alias name and the Social Security number used by this individual was determined to be a true person who was an executive with a New York financial institution.
In yet another case in May of 1988, an individual attempted to open a bank account in Middletown, New Jersey. An alert customer service representative questioned the individual, who then fled the bank. The service representative obtained the license plate of his vehicle and contacted local police, who then arrested the suspect within a few blocks of the intended victim bank. Although this individual was alone when he left the bank, he had a passenger in his car at the time of his arrest. The passenger was later identified through fingerprints as a Nigerian national who was a federal fugitive. The original charges against the passenger were also for fraudulent activity. The driver of the vehicle posted a $10,000 bond and was released the same day.
Again, our later determination was that the name given by the driver was, in fact, an alias of yet another Nigerian national. The alias given to the Middletown Police Department [in Monmouth County] was the same name used to defraud another bank in Millstone, New Jersey. Further investigation determined that all the aliases were true identities of bank employees from New York City.
An in-depth investigation by the FBI determined the driver's true identity, revealed that he had used nine different aliases in … Jersey City, Passaic, Belleville, North Arlington, Perth Amboy, Bellmawr, Edison, Iselin, Haddon Township and Blackwood, New Jersey, and had defrauded banks in those areas of $225,000. It was also determined that the driver had applied for and obtained credit cards from a local department store under the true person's name and credit history. He [had] obtained another $60,000 in cash and merchandise with these credit cards ….
In a little over a year the driver obtained almost $300,000 in cash and merchandise from New Jersey businessmen. We have no way of calculating the driver's total financial gain from his fraudulent activities, but we do know of his extensive travel up and down the East Coast and as far away as California. We also know that the checks deposited by the driver were used by other Nigerians to commit similar frauds.
Another individual, while on bail for a $40,000 fraud committed against the State of New Jersey Department of Labor, engaged in an eight-month fraudulent spree that netted him well in excess of $100,000 using the Social Security accounts and true names of New Jersey residents. Again, one of the individuals victimized was a senior executive at a New Jersey financial institution.
These and similar investigations reveal a pattern of widespread fraudulent activity, [including] bank fraud, credit card fraud, student loan fraud, unemployment fraud, insurance fraud, rental car fraud and the like.
These frauds all have a common denominator, the false identification card. The card is a prerequisite to all of the fraudulent activity. Nigerian criminal elements will seek to infiltrate major companies to obtain biographical data on the company's legitimate employees. They will normally apply for positions as security guards, cleaning personnel or positions with temporary employment agencies, even in white collar capacities, such as accountants. The security guards and cleaning personnel, for example, during periods of minimal presence by company employees, will attempt to obtain information on payroll and human resource records, which will, of course, contain biographical data on legitimate company employees. If they are not successful in penetrating these areas of the company, they will look for information on individual employees, normally supervisory or management position employees, which will also enable them to obtain the biographical data and credit lines based on the true employee's biographical data.
I'll give you three additional, what appeared to be unrelated, instances that took place earlier this year which, upon first blush, did not appear to be related. But I'll try to tie them together for you at the end of this particular segment to show you how … circuitous the routes are and how many different kinds of criminal activities can take place in one particular scheme.
In March of 1990, accounts were opened at two banks in Princeton, New Jersey, under the name of Moneyline Investment. A series of checks drawn on an attorney trust account in Georgia were deposited into the accounts with money withdrawn … prior to checks being returned unpaid, causing a $25,000 loss.
The month before … an individual had attempted to get a $3,000 cash advance on a credit card in West Windsor, New Jersey. At that time an alert teller called the credit card company for authorization and the customer spoke with the security department of the credit card company. The customer was asked a series of questions, one of which was fictitious and designed to be so, and when he responded, the security department told the bank to seize the card. The bank also seized the driver's license used for identification. The individual fled the bank and the police obtained a John Doe warrant for this individual.
A few months later, in September of 1990, the Plainsboro, New Jersey, Police Department arrested a woman who had attempted to open a bank account under an alias name. The woman was later identified to be a Nigerian from Maryland. In her possession was a check drawn on the same Georgia attorney's trust account, the one that was used in Princeton under the Moneyline Investment account name. This woman we believe was … working in concert with the West Windsor, New Jersey, John Doe.
Once the link between the West Windsor and the Plainsboro incidents was developed, further investigation determined that this John Doe customer had obtained a safe deposit box at yet another branch of the same bank in East Orange, New Jersey. Again in September this John Doe customer went to the East Orange bank to close his safe deposit box. The only warrant for him was the local John Doe warrant for the attempted cash advances. Two local officers were in the bank parking lot taking a report on another incident and they took the individual into custody. The same vehicle that had been used at the bank in Plainsboro was located in the parking lot.
In May of 1990, a set of Interceptor tires was put on this vehicle and charged to a fraudulently obtained American Express credit card. At the time the tires were put on the car the mileage was 56,000 miles. When this fellow was arrested in mid-September the mileage was in excess of 90,000 miles. He had put 35,000 miles on the car in a little over four months. How would this individual put so many miles on the car in four months? What developed … as a result of this arrest, was the identification of mail drops in Alexandria, Virginia, the District of Columbia, Maryland, and five more in New Jersey.
Additionally, it was determined that this individual had been employed through a temporary accounting service at a company in New Jersey. While working for the company he stole ten blank checks of a subsidiary company from the back of a checkbook and a legitimate accounts payable check in the amount of $28.000. This check was negotiated at a bank in Virginia where a fraudulent account had been established. One of the blank checks was also negotiated in Massachusetts. Additional deposits in the Massachusetts accounts were drawn on a federal credit union in Bladensburg, Maryland. In Bladensburg, Maryland, it was determined that that credit union had been victimized, and a series of 700 checks were stolen from that institution. The credit unionin Maryland suffered over $100,000 worth of losses before we caught up with them.
Special Agent Murphy described what he called "controlling cells," operating in various regions of the country, that suggest the presence of centralized leadership for Nigerian organized crime:
The information which is obtained by [cell] workers in similar scenarios is furnished to a cell leader, who controls access and distribution. The cell leader interacts and exchanges information with leaders in other states. The exchange of information, checks and identification provides these groups with a constant supply of new information which allows them to perpetrate new frauds without readily being detected.
We see people that are performing at different levels, different functions and much like smurfs that are used in money laundering. There is a group that are doing that. Well, they have been doing it at the direction of cell leaders and we know that they are obtaining training in how to approach and how to manipulate the system.
Let met give you a very good example: the use of the ATM. … I indicated at one point that the subject of one of the investigations monitored the account from an ATM. … [T]hey'll go in with fairly good identification, fraudulent identification, make their initial deposits, get the system opened up, and then they sit back and from afar, outside, they test that ATM machine. And they'll know within hours when that check clears. And as soon as it clears is when they hit, because there is a window of maybe a day or two days before the bank will release the funds and when, in fact, the Federal Reserve System will clear the check. They know how long that window is. They monitor it from afar [because] if they mess it up, if they come in too fast to the bank, they'll get identified, so they monitor it from the outside. As soon as the funds are released, they go in, cash their checks and get out. You won't find them doing it four or five days later, because they know that the check will clear in that period of time.
Special Agent Murphy summarized the extensive negative impact which Nigerian organized crime has on our society:
Nigerians present a unique problem for law enforcement, in that their fraudulent activities are committed against government agencies where benefits can be obtained, against financial institutions, department stores, credit card companies and insurance companies. They also impact heavily on the general public with increased costs from frauds being passed on to them in higher interest rates and taxes. The individual victim whose personal credit history has been victimized faces a long battle to get his personal credit history back to normal with the fraudulent charges deleted.
The Commission has learned that Nigerians are also involved in organized smuggling of heroin into the United States. In this country a person called a "God Father" controls four to six "mules" who transport drugs and money. The typical smuggling process starts in Nigeria when the mule — usually a woman or juvenile — goes to a "Black Magic House" to receive instructions and swallow the contraband drugs, which are sealed in condoms for transport to the United States. Nigerians obtain most of their heroin from Southeast Asia where 70 percent of the heroin available in the United States is produced. Three out of five couriers arrested in Thailand in possession of heroin are from Nigeria.
Historically, the source of heroin in the black community has been La Cosa Nostra — trafficking in Southwest Asian heroin. Today, the major source is ethnic Chinese organized criminals dealing in Southeast Asian heroin. Of course, the evidence of Nigerian smuggling clearly indicates that Chinese criminals are not the lone suppliers of Southeast Asian heroin in the United States.
COMMON CONCERNS ABOUT AFRO-LINEAL CRIMINAL GROUPS
Afro-lineal criminal groups are particularly dangerous because they exhibit all or some of the following characteristics.
BREEDING GROUNDS FOR DURABLE SYNDICATES
Although many Afro-lineal criminal groups have only a fleeting existence, some of the more notorious have enjoyed significant duration and power. If left unchecked, each gang, set, posse or other incipient organization has the potential to become entrenched to the point where it may achieve a life of its own. This certainly occurred in the case of The Family in northern New Jersey, once headed by Wayne (Akbar) Pray.
Narcotics trafficking, in particular, provides a fertile breeding ground for criminal cartels. Just as Prohibition during the 1920s promoted the rise of La Cosa Nostra families, the vast demand for illegal drugs provides many opportunities for new groups to accumulate power and markets through energy, resourcefulness and brute force. Newark's Police Director, Claude M. Coleman, summarized the problem during the Commission's public hearing:
[A] lot of [African-American] groups are what I refer to as freelancers, having very fleeting operations. We take them out, there are others that take their places …. [B]ut a lot of them have achieved a level of sophistication and durability that we find disturbing and … make it more difficult to detect, to apprehend and to prosecute.
Director Coleman noted that "as long as the demand continues, we are going to have drug traffickers," but he emphasized that "constant attention from law enforcement and from groups such as [the SCI] can prevent any one group from becoming too powerful and … too entrenched or too insulated from police detection."
As established or aspiring drug trafficking groups vie for available markets, they become extremely violent. Returns from the lucrative drug trade provide ample funds to purchase devastating weapons. The criminal milieu breeds a lack of respect for life. This volatile combination leads to high rates of homicide and aggravated assault, as well as the disruption of normal life in many neighborhoods.
On October 26, 1989, the front lines in a drug turf battle engulfed two Essex County Police officers. A police captain and sergeant were severely wounded in Newark when they stopped their patrol car to question individuals who turned out to be heavily armed and grouping for a territorial fight with a rival drug dealer.
DEA Special Agent-in-Charge Donald Ashton detailed the violence associated with The Family in Essex County under Wayne Pray:
[Pray] also reinforced his control over his organization and drug trafficking within its territory through violence. Pray hired thugs to intimidate or eliminate witnesses who might implicate him in criminal activity. Witnesses in at least five homicide investigations have asserted that Pray was directly responsible for victims being murdered because they had attempted to obtain cocaine from less expensive sources of supply or attempted to withdraw from his organization.
Elizabeth Police Detective Thomas Swan testified how the E'Port Posse disposed of Mutah Sessoms, one of its members who had been cooperating with police:
[I]n March of 1989, during the discovery phase in the criminal cases stemming from Operation Pioneer, the defense was able to obtain a statement which had been provided by Mutah. Soon afterwards Sessoms was severely beaten by five individuals after he had left the Union County Courthouse, three of whom he identified as Pretlow underlings, Shawn Hartwell, Bilal's second-in-command, and another by the name of Wendell Wilson, who would later help avenge the death of Robert Pretlow. I warned Sessoms that his identity had been revealed, and we took precautions to make sure that he stayed out of Elizabeth. We provided him with funds, but because of his age, which was I believe at the time, nineteen, he had a girlfriend that he couldn't stay away from. So he sneaked into Elizabeth at night, unbeknownst to us, and finally on June 17, 1989, his mutilated, decapitated and dismembered torso was found in suitcases in Newark.
Detective Swan described the violence connected with the struggles for supremacy in the drug trade in Elizabeth and parts of Newark among the E'Port Posse and other groups:
[On] January 8, 1989, Ricky Williams was shot in the abdomen by [E'Port Posse members] Keith Cashwell and Andre Williams, … because he posed a threat to the Pretlows. Bilal Pretlow ordered this shooting from the Union County Jail, and it was relayed via [his second-in-command] Shawn Hartwell. Jeanette Griggs was severely beaten by Bilal Pretlow, Shawn Hartwell and others for selling cocaine in the vicinity of Pioneer Homes for someone other than the Pretlow organization.
Shortly thereafter, on July 9, 1989, Robert Pretlow was shot to death in Elizabeth by Bobby Ray Davis, Walter Griggs, who was Jeanette's brother, and Maurice Crowley, who was Jeanette's boyfriend. Bobby Ray Davis was a major supplier of heroin to many New Jersey cities, extending into the state prison system. He had decided to expand his drug operation to include cocaine distribution to the Pretlow turf in Elizabeth. On the day of Robert Pretlow's death the Elizabeth Police stopped a car driven by [Bilal] Pretlow, who was then out on bail, and containing Shawn Hartwell and Irving Bethea. All three fled the car, and in a garbage can which Pretlow had passed was found … a Tech-9 automatic pistol with a clip of 25 rounds. On July 10, 1989, which was the following day, Bobby Ray Davis was shot to death in front of his home in Elizabeth [by] Thomas Pretlow, the oldest of four Pretlow brothers…. … [Wendell] Wilson [was] charged with driving Thomas Pretlow to the Davis house where Pretlow allegedly shot [Davis] in the head three times. We've had at least four other execution-style killings attributed to the Pretlow organization or its rivals. At the height of this group's activity we had shots fired in the downtown area of Elizabeth every night.
Bilal Pretlow faces the death penalty in federal charges for the alleged drug-related murders of Sessoms and Melanie Baker, a 16-year-old girl who inadvertently stumbled on the location of one of the outfit's "stash" houses.
Camden Police Detective Leonard Hall testified
about the violence associated with the criminal sets
in Camden:
With the involvement of young street dealers in the last few years their dealing is wide open, on the corners, projects and what have you. This fact, coupled with keen competition for turf, has led to violent confrontations on the street.
… [S]ome [sets] attempt to invade [others'] area[s] of operation to increase their drugsales. Frequently this results in drive-by shootings, to force one set to either relinquish the area or to fight back by attacking the other set.
In other instances the individuals often rob the young drug dealers as a means to obtain money without dealing drugs themselves. We refer to these individuals as stick-up boys. Recently in Camden we had a triple homicide by a hired shooter originating from Philadelphia who also double-crossed one set who had hired him to protect them and their operation.
Camden Detective Louis Muzyczek testified about the availability of weapons to set members:
[They possess] Uzi machine guns, automatic pistols. The weapon of choice is the nine millimeter automatic. We see sawed-off shotguns, and … individuals in [different] sets are actually wearing bullet-proof vests.
Violence is also characteristic of Five Percenter gangs. Monmouth County Investigator Jordan testified how the violence centers around battles for turf:
[Five Percenters] will become very hostile to any rival gang or anyone who attempts to take over their drug turf, as it has been outlined by them. … We have 68 gangs that we are dealing with in our county [including 14 Five Percenter chapters], so there is a lot of rivalry there.
Five Percenter violence extends beyond turf
battles with other groups, as related by the disguised
witness:
Q. What happens to any member who wishes to leave the Five Percenters?
A. He will be subject to a "universal beat down," which is an assault or a beating and may even be killed, depending on the cir
cumstances. …
Q. Even a killing could result, depending on the circumstances?
Q. Is the term "universal beat down" used for any other reason?
A. Yes. Could be assault on a white person, who assaulted or questioned a black man. It could also be used against a Five Percenter for failure to learn his lessons.
CHAIRMAN JAMES R. ZAZZALI: Mr. Witness, you've indicated that a "universal beat down" could include a murder, am I correct?
CHAIRMAN ZAZZALI: Without going into any details, do you have knowledge of such murders?
CHAIRMAN ZAZZALI: About how many?
A. Three, four.
Violence also occurs between Jamaican posses and other posses or African-American narcotics traffickers. It takes place as one group or another defends its drug-dealing turf or for political and other reasons. A blatant example occurred in a park in Oakland, New Jersey, on August 4, 1985. In a gun battle between elements of the Shower Posse and elements of the Spangler and Dog posses, three people, including the leader of the Dog Posse, died and 19 were wounded. Police seized 33 weapons at the scene. More than 1,000 spent shell casings were found.
Illegal aliens from Jamaica are typically employed to staff the Jamaican drug trafficking organizations. Their loyalty is insured by threats of violence to them and their families. There have been documented incidents of what is called "jointing" of individuals cooperating with law enforcement. An informant's body is dismembered at the joints and pieces sent to his family in Jamaica.
Since 1985, approximately 1,400 homicides in the United States have been attributed to posse drug dealing. In New Jersey, there have been 17 posse-related murders since January 1987. In excess of 200 posse-related killings occurred in New York City during 1988. In Philadelphia, there have been more than 40 posse-related homicides since October 1986. The posses have engaged in indiscriminate shooting sprees, even though only one person was the target, and they often assassinate the entire family of a targeted victim.
DESTRUCTION OF NEIGHBORHOODS
Established and emerging Afro-lineal organized crime groups have disrupted everyday life in many urban and suburban areas. They recruit youth into a disastrous way of life, destroy families, intimidate decent people to the point where they feel like prisoners in their own homes and have even been responsible for the murders of innocent bystanders.
In a statement submitted at the public hearing, Camden Police Chief George D. Pugh emphasized Afro-lineal organized crime's crippling effects on urban neighborhoods and society at large:
I perceive no greater threat to the rebirth, stability and quality of life in our urban communities than the organized groups of young predators terrorizing our neighborhoods while engaged in illicit drug trafficking and its attendant violence, all under the control and direction of well insulated individuals. … The crisis in the urban centers is just the beginning; the problem has and will continue to infiltrate the suburban and rural communities. I sincerely hope and pray that this hearing is the first step towards developing and implementing a comprehensive policy and plan to effectively eradicate this ever-increasing cancer we have identified as youth violence.
Camden Police Detective Leonard Hall elabo
rated on the adverse effects on neighborhoods that
become the turf of drug distribution rings in Camden:
[With] widespread [drug selling] operations and the frequent drive-by shootings and situations like that, the individual citizens in Camden have become prisoners in their own homes. The young people, the youth dealers, have no respect for the elderly, and a few innocent people have been shot and even killed. People can't even walk to the store basically like they would do in [normal] neighborhoods.
Newark Police Director Claude Coleman de
scribed the situation existing in some neighborhoods
in Newark:
… [S]ome of the decent people who live [in buildings that become part of the territories of these criminal groups] become like prisoners in these buildings. … They are afraid to go in; they are afraid to come out; they are afraid to have visitors. They don't get deliveries as other people would in normal neighborhoods. I think the quality of life in the neighborhoods has overall deteriorated. The kids that play in the neighborhood become workers for the people who are dealing drugs because they are attracted by the fast money and the fast cars and the so-called symbols of success — the gold chains, the sneakers. They want these things, but the only way to get them is to deal drugs, so it's ready employment for them. … [T]here is the danger of [the criminals] serving as role models for the
kids that they come in contact with.
In response to Commissioner Dumont's inquiry
about the ages at which some youths participate in
drug trafficking, Director Coleman testified:
Well, we've had some as young as nine serving as lookouts. … They are all around the block. As soon as someone comes around the corner who they suspect to be a narcotics officer or a police officer, they start yelling, "Five-oh, five-oh" [using the name of the old Hawaiian police show on television], and they are actually serving as lookouts.
Somerset Prosecutor Nicholas Bissell described
how one of Isaac Wright's minions was enticed by
the trappings of the drug trade:
For example, during the guilty plea of [Willie (Chill Will)] Sirmans, he indicated that he first met Wright when Wright arrived at one of these apartment complexes driving a white Mercedes. We had surveillances going at the time, and you could see on the surveillance tapes that it attracted all the kids to his car. Not that he ever sold any cocaine from that car, but that Mercedes was a status symbol in that area. Sirmans indicated that once he became involved and he was found to be reliable he had what was known as a franchise. That franchise entitled him to get a new Volvo automobile, which Wright purchased for him. Not to sell drugs for him -in Sirmans' words it was for show. In addition to that, he could keep anywhere from three to five thousand dollars of the money per week that he made. He kept, as he indicated during his plea, essentially whatever he wanted, and he, therefore, never had less than $500. This is a kid that's, at the time, 16 or 17 years old and going to school, and he's driving a new Volvo on a forged license, and he's got at least $500 in his pocket. So that kind of an operation allows for those kinds of role models. And in those disadvantaged areas you can see, I think, where kids would be drawn to that type of a life-style, [figuring,] "I can get all the things I can't get any other way, and this is an easy way to do it."
Detective Hall also described the recruitment of youths into drug distribution rings in Camden:
Some of the sets have what they call a lookout. Lookouts can vary anywhere from eight to 13 years old, and they are paid to look out for the police or stick-up boys. They are paid between 50 and 60 dollars a day. Now the street dealers receive about $600 worth of drugs from the mid-level manager, and at the end of the day, if he sells the entire amount, he's permitted to keep $200, one third of what he was given. In many cases the $600 worth of drugs has already been … diluted by the [boss or] manager of the operation, what we call stepped-on.
Camden Detective Louis Muzyczek compared for Commissioner Dumont present-day cocaine dealing to the heroin trade which predominated in the past:
Just the fact that Camden's population is only 85,000, and … it's only three square miles, and we have 38 active drug sets, which can range from 10 individuals on one particular set up to 50, that is quite a bit of young people involved in narcotics. And I've been a police officer going into my seventeenth year, and it was there in the beginning … with heroin, and its much larger now … with the cocaine flow throughout the city. More people are involved. More young people are involved. Children that are going to the elementary schools are carrying what we call beat bags, and they are actually role playing what they see on the corners at night when they go home from the schools.
Monmouth County Investigator Louis Jordan
related how Five Percenters recruit and use juve
niles:
They use a lot of juveniles, which we see a lot of, mostly, who are familiar with the system. And you have to understand also that when these juveniles are approached by law enforcement, they have been taught that they are basically going to be smacked on the wrist and turned back into society. So we have adults who are behind them, we find, a lot of the time.
They do a lot of recruiting at our schools. In fact, a majority of it. Again, I will estimate we are dealing with juveniles mostly. Recruiting is going on at the schools, themselves, also in parks and on the streets.
[A] lot of it is done in the grammar schools. …
[T]here is [also recruitment in the prison system.]
Investigator Jordan told Commissioner Merin how quick drug money breeds parental condonement of young drug traffickers operating in poor areas with high unemployment rates:
[W]e find when … we arrest [a juvenile], … we can get a lot of flak from the parent. You have to understand that if the parents are getting a $300 or $400 check from the State and … their child … all of a sudden … is out there involved in drugs and bringing home $300 or $400 a day, that parent is not going to turn that child in. And, not only that, the parent is probably going to give the authority that brought that child there, be it DYFS [Division of Youth and Family Services] or the police, a very hard way to go.
BROAD IMPACT AND CONNECTIONS
Drug trafficking is not the only scourge of Afro-lineal organized crime groups. The Commission learned about gun running, homicides, robberies and extortion committed by these groups. It learned about enduring gambling operations, some under the control of La Cosa Nostra and some operating independently. The SCI also learned about certain organized Nigerians systematically defrauding banks and other commercial enterprises. The adverse impact of these groups on our society has been sweeping and profound.
When asked by Chairman Zazzali to compare the harm caused by Afro-lineal organized crime to that caused by La Cosa Nostra, Director Coleman concluded that the former's heavier involvement in drug trafficking made its effects "much worse." He added, "We've had gambling, which other groups have engaged in, we've had prostitution, but those activities have never had the effect that drug trafficking has had." Camden Detective Leonard Hall told Chairman Zazzali that the drug trade is "the biggest business within [Camden]."
In some instances Afro-lineal organized crime groups have cooperated with criminal groups of other ethnic backgrounds in order to obtain financing, gain sources of supply or customers or avoid territorial disputes. Detective Hall described the evolving relationship between African-American gambling operations in his area and La Cosa Nostra:
In the past many of the black numbers operators have been under the Bruno-Scarfo organization or have edged off their bets to that organization. With the demise of the Bruno-Scarfo influence it appears that most of the black numbers operations have become independent.
Cooperation among criminal groups is international in scope. DEA Special Agent-in-Charge Ashton testified about the Colombian connection with The Family headed by Wayne Pray:
[The Family] distributed both cocaine and marijuana. Pray's supplies of these drugs came from as far west as California and as far south as South Florida. His primary sources for both were Colombians, affiliated with the Medellin cartel. One of his sources for cocaine was Nelson Gomez, a member of the Paladinos, an organization located in Medellin, Colombia. The Paladinos' primary role is to execute drug traffickers who have crossed the Medellin cartel. They were, in fact, enforcers for the Medellin cartel. On at least one occasion, Pray, himself, traveled to Colombia. Pray dealt with representatives of the Medellin cartel located in South Florida, thereby purchasing his cocaine at a much lower price. He was able to originally meet the Colombians because of his reputation for being able to obtain false identity documents.
While urban communities with large minority populations suffer most at the hands of Afro-lineal organized crime groups, these organizations also provide drug supermarkets for customers who live in the suburbs. Much of the wealth accumulated by such operations comes from suburban, upper and middle class drug customers that patronize the drug traffickers' turfs. Newark Police Director Coleman testified about the suburban connection:
[C]ertainly the users … are suburban. Some of the people we see coming into Prince Street, some of the other areas that I've talked about, … [are] coming from Short Hills, Millburn and from other suburban areas ….
Camden Detective Muzyczek also testified that
suburbanites are a mainstay of the illegal drug mar
kets in that city:
The purchasers of these drugs are coming from the suburbs into the City of Camden. Camden City's population could not support all the drug activity that we see on a daily basis and throughout the many years that I've been working there.
Finally, Somerset County Prosecutor Bissell de
scribed the interaction between suburban customers
and urban narcotic suppliers:
[O]ne of the things that we've noticed with respect to our efforts is that urban areas have become essentially the shopping centers, if you will, for narcotics. They present a geography that makes it difficult for law enforcement to operate, obviously, and it allows these groups to operate almost openly. And they attract the customers from the suburban areas, so while Somerset is essentially a suburban county, we have New Brunswick on one border and Plainfield on the other. And we find that our citizens go to Union and Middlesex County, buy drugs and bring them back to Somerset, and they are creating a narcotics problem in Somerset County. But they are also allowing and creating a narcotics problem in these urban areas. And these groups become more organized, because the organized nature of the network allows for a more reliable supply, which results in a deeper addiction of more people, a greater demand, more money and a strengthening of the distribution ring. The more established the group, the more likely there will be unwholesome role models for young people, especially in the innercity areas.
CONCEALMENT (HIDING THE WEALTH, CORRUPTION, AURA OF RESPECTABILITY)
As in other criminal organizations, Afro-lineal organized crime groups strive to insulate their leadership from connections to the criminal activity. Newark Police Director Coleman described for Commissioner Barry H. Evenchick the care which is sometimes taken by street-level drug dealers:
Well, [a drug purchase] might unfold with someone from the suburbs driving through the area, and he approaches a dealer who might direct him to someone else. This person may take the money [and then] direct him to someone else, who will give him the drug.
The person who gives you the drug is going to give you what you order. If you apprehend him, he's going to have that one drug on him. He's not going to be arrested for a major deal [nor] lose his "stash," that is, the major part of his drugs.
DEA Special Agent-in-Charge Ashton detailed how Wayne Pray of The Family in Essex County invested illicit gains in legitimate businesses and insulated his illegal activities from law enforcement scrutiny:
Q. Did Pray's activities extend to investing illicit gains in legitimate businesses?
A. Yes, sir. Pray used several businesses as fronts to create the appearance that he had legitimate sources of income and that he was merely an honest businessman. Some of his front businesses were the Golden Comb Hair Salon, Garmal Auto Sales, Za-Key Associates, which is a paralegal and financial consulting firm, Mel-Ton Talent Promotion and Entertainment Company, an abortion clinic, and he touted himself as a boxing promoter. During an eighteen-month period between January of 1987 and June of 1988 at least one million dollars in assets were purchased by or on behalf of Pray.
Q. Were there other ways in which Pray insulated himself from the criminal activities of The Family?
A. Yes, sir. One of the methods utilized was to exploit women who would carry out his drug transactions. He oversaw these arrangements, but he neither handled the money nor the drugs directly.
Q. You earlier mentioned his reputation for being able to obtain false identity documents. Could you elaborate on this?
A. Yes, sir. Pray provided phony identification for several of his Colombian contacts who were traveling in the United States. This included fraudulent New Jersey driver's licenses which he obtained through suspected corrupt employees of the Irvington motor vehicle agency.
Special Agent Ashton also testified that when Pray promoted boxing matches he hired off-duty local police officers to provide security. Agent Ashton attributed Pray's "image within the community that he was untouchable" by law enforcement, in part, to this police presence in his entourage, "which would give him a certain aura, and people would be fearful of providing information."
The Isaac Wright group from Somerset and Middlesex counties and The Family of Roland (Pops) Bartlett, which operated in southern New Jersey, both utilized recording companies to launder profits from the sale of drugs. Wright used the New York City firm Express Records, and Bartlett used Domino Records, also of New YorkCity, which he had purchased from the Genovese-Gigante LCN family.
Camden Detective Joyner described for Commissioner Merin the infiltration of legitimate businesses by drug traffickers looking for fronts or places to launder illegal profits:
Q. You indicated that several of these [Camden] groups used legitimate businesses to launder their money. I think you mentioned there were bars and laundry shops, that sort of thing. Do you know for a fact which businesses those are? Can you trace the ownership back to the posse members?
…A. The same names involved in the drug activity are showing up on the licenses for the purchases and rentals of the businesses. We have people that have histories going back into the '70s involved in different activities, especially with the Jamaicans that are involved in legitimate businesses in the Camden area and Philadelphia area.
Q. Have you attempted to work with ABC, for example, so that prior to the time the license is granted in Camden they run the information by you, or you go to them to try to get some of these bars de-licensed?
A. This has been one of the problems, the interagency coordination. A lot of times we don't find out about a business until it's opened, established and moving. They take over businesses. A lot of the businesses that they take over, it's just a matter of changing the license and that is just a short-term deal. We don't know about it ahead of time. It's done.
Q. So might one of the recommendations be to have ABC contact the police department directly before it grants any licensing in Camden …?
A. Yes, both local and statewide.
Q. In terms of some of the other businesses that are outside the jurisdiction of the ABC, the launderies or whatever type of commercial enterprise, is it possible to set up some sort of licensure operation or coordination with the Department of State, in other words, prior to the time that a business can be incorporated or prior to the time it receives any other necessary papers from the state, is there some communication or coordination that would be helpful at that level?
A. Again, this is an issue that is hard to get ahead of. You don't realize its happening unless you have someone working right in Licensing and Inspection, or checking [it], on a daily basis almost, that the takeover is being done. A person comes in and applies for a permit or a license at a food store, sandwich shop, steak shop; it doesn't raise any suspicion [at Licensing and Inspection] that this is happening.
Q. If we, being the State, required that, prior to the time that any business would open, [there would be] a 72-hour waiting period in order to give the police the opportunity to review the names, would that be helpful?
A. If the information for every business could be forwarded to the police — to the municipalities, the officers, our investigative division, to check the names and see who these people are, it would help possibly in identifying just what is happening and the organizations, how they are spreading out.
The Commission recommends the following actions to more effectively counter the threat of Afro-lineal organized crime:
Spending programs should emphasize the reduction of demand for the drugs whose sales provide the profits which are the lifeblood of most of the Afro-lineal organized crime groups. In the long run it will be cheaper and more beneficial for society to spend significantly more for boot camps for youthful offenders, drug addiction treatment facilities and vocational training, even if it means that less money will be available for more prison cells. In addition, suburban customers of urban drug supermarkets should face tougher sanctions and forfeitures.
Direct assistance to local law enforcement should be increased so that more police can walk beats and help urban residents reclaim their neighborhoods. Meanwhile, programs that encourage community participation in efforts to stamp out drug trafficking and other crime should be enhanced. The State Division of Alcoholic Beverage Control should expedite appeals of local license revocations for those liquor establishments notorious as fronts for
drug trafficking.
Law enforcement should devote a greater proportion of its intelligence effort to Afro-lineal organized crime groups. Equally important, this information should be routinely shared among law enforcement agencies in a true spirit of cooperation. The Narcotics and Organized Crime Management and Analytical Database (NOMAD) should be expanded by eliminating federal funding restrictions which deprive such systems of federal "drug war" funds.
Leaders of Afro-lineal organized crime groups should be targeted, exposed and isolated. They should be prosecuted as "drug kingpins" and denied bail if the government can prove they pose a danger to the community. If granted bail, their trials should be expedited. Their investment of illegal gains in legitimate assets should be traced. Finally, after incarceration they should be closely monitored in order to curtail their influence over their organizations.
Law enforcement tools, which have proven successful in the fight against La Cosa Nostra, should be retained and expanded to counter Afro-lineal organized crime. Electronic surveillance is particularly helpful. Meanwhile, New Jersey needs a state law counterpart to complement the federal statute dealing with money laundering.
The Commission is well aware of the fiscal constraints which limit the State's ability to fund some of these recommendations. However, much could be accomplished without additional funding by simply altering correction and treatment priorities, encouraging more flexibility in federal funding, improving cooperation among agencies and focusing more attention on group leadership.
EMPHASIZE REDUCTION OF DRUG DEMAND
Our society should put proportionately more money into reducing the demand for drugs through prevention, education and rehabilitation. Money must be spent at the source of the drug problem -demand — in order to avoid spending much greater sums for jails and the criminal justice system. Somerset County Prosecutor Bissell succinctly described the right combination of resources for victory in the war against narcotics trafficking:
… [A]s [the drug war] becomes a more comprehensive effort, [with] … law enforcement being stepped up to the point where it has been, … education and treatment and rehabilitation also … elevated to the same level, then I think … we can move even farther, … and we will continue to have success as long as everyone understands that this is not something that law enforcement is going to solve by itself. I don't think anybody in law enforcement believes that. We need these other components. Education, treatment and rehabilitation are just as important as effective law enforcement.
More money should be provided for corrections resources capable of reducing drug demand: boot camps, drug rehabilitation facilities and vocational training. Newark Police Director Coleman described for Commissioner Dumont the absence of facilities to deal with youths who enlist in drug distribution and auto theft rings:
The ones that … [serve] as lookouts, we don't bother to arrest them, first of all — [it's a] very hard charge to prove. The other kids that are definitely engaged in the activity, whether it's drug trafficking or auto theft, we arrest those, and they are handled through the juvenile justice system and, just like the adult system, there are so many kids involved in there that they are released. There is no place to put them.
Unfortunately, too, it seems that [judges have] fewer alternative dispositions …, to incarceration, like reform school or juvenile schools …, since those places are crowded. The kids that we are dealing with now are notgoing to be released to the YMCA or some local social group because those groups just aren't able to take responsibility for the kids.
Director Coleman further explained that the criminal justice system cannot cope with a solution based largely on arrests, prosecutions and incarceration:
I think that we've seen that the drug arrests really just led to a general breakdown of the criminal justice system, where we are not seeing speedy trials, we are not seeing any justice at all. And it seems the more people we arrest the more broken down the system becomes — really nowhere to put these people that we are arresting. They are right back out. … [T]here is simply no place to put them. The more people we arrest … the more crowded the jails become, and almost all of the prisons now are under some form of court order which says that you have to reduce the crowding in the jail.
He elaborated for Commissioner Merin:
Let me say with respect to the penalties, I'm not sure if we toughen the penalties that that is going to make a major difference [against drug traffickers]. … I think when we start to institute mandatory penalties and start to make them longer and longer, we just create the need for more jail space and more prisons which kind of got us here in the first place. We don't have enough jail space. It's not being built fast enough to accommodate the people that we are arresting. A lot of the police officers would be satisfied if we could get them six months as opposed to six years, as long as we got them something — when they are arrested at least they went away for six months. Right now they are not going any place because it takes too long.
Director Coleman's concerns are punctuated by
projections for increased state and county prison
populations in the coming years. On February 26, 1991, Corrections Commissioner William H. Fauver reported to the Assembly Appropriations Committee that the state adult prison population is expected to increase by about 3,075 inmates (over 14.5 percent) during the next 18 months. The Commissioner added that the state prison system is operating at approximately 140 percent of capacity. Current construction plans are not expected to reduce the number of adult state prison inmates (varying between 2,800 and 3,000) who are housed in county jails under an emergency order that has been in effect for a decade.
There are some signs that the state government is serious about devoting a greater share of resources to demand reduction. Under a 1989 law creating a Drug Enforcement Demand Reduction Fund, the State has collected more than $20 million in mandatory fines from drug offenders ranging from $300 to $3,000. In February of this year, $8.1 million of this money was made available to 300 municipal alliances as seed money for their local education and public awareness efforts against drug and alcohol abuse. The Governor's Council on Alcoholism and Drug Abuse has formally approved the first allocations of Fund money to authorized spending programs in Passaic, Bergen and Burlington counties. All 21 counties will eventually receive funds. The counties' shares are based on a formula which takes population (including the proportion of juveniles), incomes and numbers of arrests into consideration.
A portion of the remainder of the $20 million in the Fund has been earmarked for the State Department of Health for community drug programs. The rest is being held in reserve for future years.
As a further means of reducing the demand for narcotics, law enforcement should put increased pressure on suburban drug customers who frequent urban drug supermarkets to purchase their deadly wares. Increased seizures of the customers' automobiles would discourage drug use.
The present forfeiture law applies only to indictable crimes. A proposal which would have allowedthe forfeiture of any property directly or indirectly used in or derived from a disorderly persons drug offense has not moved in the Legislature since the majority of prosecutors expressed opposition. The prosecutors were concerned that public support for drug enforcement would be weakened if the punishment were too severe to fit the crime charged. Amendments being suggested to the bill's sponsor, Senate President John A. Lynch, would allow the forfeiture of property involved in disorderly persons offenses so long as the offenders were arrested for indictable crimes that were downgraded to disorderly persons offenses. The Commission believes that something of this nature should be worked out so that casual, suburban drug users supporting urban drug supermarkets will face sanctions weightier than municipal court fines or driver's license suspensions.
A bill sponsored by State Senator Ronald L. Rice would mandate a jail sentence for anyone who buys, sells or obtains an illegal drug from a juvenile. Senator Rice also has sponsored a bill that would mandate a jail term for anyone buying, selling or obtaining drugs in a municipality outside the one where he resides. The Legislature should study these measures in relation to other mandatory incarceration laws to determine which ones are useful. Assuming an ability and willingness to substantially increase prison capacity and criminal justice system resources, such measures may prove helpful in discouraging the most insidious forms of drug trafficking. In the absence of such a commitment, however, it would be more productive to devote scarce resources to more proven methods of demand reduction.
INCREASE LOCAL LAW ENFORCEMENT ASSISTANCE AND ENCOURAGE COMMUNITY PARTICIPATION
There should be more police walking the beat and patrolling in urban areas. The bulk of drug war law enforcement assistance funds should be provided directly to the local level where the real war is being waged against drug rings. We should devote more resources to community outreach programs that support and involve civic groups eager to drive criminal organizations from their neighborhoods. DEA Special Agent-in-Charge Ashton testified, "[W]e need to have a positive law enforcement presence in the community, and we need to solicit the community's trust and support."
Newark Police Director Coleman described how some of this funding could be put to work on the local level. He delineated a program, involving Newark and State police, called Operation Homestead, operating in Newark on a limited basis:
We try to reduce the demand on drugs by being present in the community. … We try to work and empower the community so that when the police do leave, at least the neighborhood has been improved by our being there. It involves, too, bringing to bear much more different resources than the police on a particular problem. … We've seen by arresting certain traffickers that others simply just take their place. What we try to do is improve the overall quality of that community, not just arrest the traffickers, but try to help those there who need treatment. [We t]ry to organize the community, [so] that when we do arrest one, no one rises to take his place.
Since last year the Newark Housing Authority (NHA) also has conducted a program called Operation Clean Sweep, a version of an anti-drug initiative developed by the Chicago Housing Authority in 1988 to combat drug activity through increased security and evictions, as well as rehabilitation of the housing stock. Under the program police secure buildings by clearing them of people who do not belong there. Housing Authority workers then clean and repair hallways and apartments and install new building entrance doors and locks. The federal government allocated $250,000 to the NHA to conduct the program at three high-rise buildings in the Stella Wright Homes within the last year. Another $1.2 million has been given to complete the remaining buildings at the complex.
Operation Clean Sweep should be just the start of a more aggressive program to clear drug-dealing gangs out of public housing projects. The NHA has a security plan calling for $13 million to be spent to sharply curtail crime at its 36 projects. $600,000 in local matching funds have been pledged by Newark City Council, but the State, which has been asked to supply the rest of the money, has not promised anything in light of its present fiscal crisis. The U.S. Department of Housing and Urban Development has also been asked to fund the proposal. The NHA, which presently employs 105 mostly-unarmed security guards, wants to hire 400 police to patrol its buildings. The full-time police patrols would also back-up tenant patrols called for by the security plan.
Somerset County Prosecutor Bissell testified about how community activism helped to thwart the Isaac Wright cocaine trafficking network:
For example, right around the time of the Wright investigation and those arrests, the people in Robeson Village got together and developed their own community watch where they put up a guard station at the entrance to the complex. And they wouldn't let in any vehicle that didn't belong to a resident of the complex, because the problem was, as people like Wright and his suppliers would arrive in these cars, people would come out, buy drugs and go back in. It was destroying their neighborhood. They finally took matters into their own hands in a peaceful way and took control of their neighborhoods and wouldn't allow this to continue. The effort goes on today, and from what we understand, it's had tremendous success in improving the quality of life in that area by keeping these people that want to sell drugs out.
Monmouth County Investigator Jordan described for Commissioner Evenchick how responsible African-American leaders have involved themselves in an effort to slow the growth of the Five Percenters:
A lot of the community-based religious organizations, as well as the community, itself, have only recently started to, in my observation, take a step forward and say, "Okay, enough is enough; there are too many kids and innocent people being killed out there on our streets." And you have to understand that we have seen a large jump in terms of activity, crime, with respect to this particular gang since 1980. Crime was relatively low when they first came on the scene. And we keep active statistical records, and crime is up all the way across the board with respect to this particular gang, so the community folk, educators, all of them are now starting to become concerned. The denial is starting to stop, but some of the denial is still there.
Camden has also developed a program involving law enforcement interaction with the community. Camden Police Detective Louis Muzyczek described for the Commission the activities of a small Camden City Police Youth Task Force, "which works to thwart the inducement of the city's youth into the drug trade":
It was formed in October of 1989 with a twofold mission. One, to eliminate shootings and street corner violence and to prevent the proliferation of youth involvement in the drug trade. We also work frequently with the grade school children to educate them in an attempt to eliminate the peer pressure of middle school and high school age youths who are already involved in the city's organized drug trade.
We go inside. We go into the neighborhoods, we try to get the confidence of the parents and the people that live in there to cooperate with us on the black-on-black crime that we see every day, the drive-by shootings. But we are severely understaffed.
COMMISSIONER DUMONT: How understaffed?
A. We started with three, and there are currently five of us [in the Youth Task Force]. When I came on the Camden Police Department in 1974 we had approximately 465 police officers. At that time … the major narcotic in the city was heroin, and … it was done at a house; it wasn't as open as it is today. Seventeen years later we have approximately 280 police officers, and we have 38 drug sets, as opposed to four or five 17 years ago. There is more crime out there, less police to fight the battle.
Camden Police Chief George Pugh highlighted the need for more police officers walking the beat in inner-city neighborhoods:
Walking the beat by patrolmen, in my opinion, is the primary mechanism needed to reduce the open air drug markets we have in our cities today. Also, when we were able to have beat patrols in the City of Camden the public perception relative to fear was the lowest in my entire career in the police department. We urgently need the funds to put the policemen back on the streets.
In early 1990 police and school officials in Camden also formed a Committee on Gang Violence to increase coordination and information-sharing between police and school officials about potential posse-related problems. Although most youth in the gangs or posses are not in school, their violence sometimes spills over into the schoolyards, and students are vulnerable to the enticements of their fast and flashy lifestyle. The group has distributed posters warning posses to stay out of the schools.
The State can assist overburdened municipal authorities by continuing state/local cooperative programs and expanding others. For example, the State Division of Alcoholic Beverage Control (ABC) should crack down on taverns which serve as drug distribution points, especially in urban areas. When a license holder appeals to ABC from a local license suspension or revocation, the local action is stayed pending the appeal. This sometimes allows notorious drug distribution premises to continue under the guise of a licensed liquor establishment for quite some time while the appeal progresses. ABC should coordinate with local authorities to expedite the appeal process for the more disreputable licensees.
INCREASE INTELLIGENCE GATHERING AND SHARING
The vast majority of police intelligence resources over the years have been devoted to La Cosa Nostra mobs. Insufficient attention has been devoted to developing strategic intelligence about Afro-lineal organized crime. While law enforcement should continue to focus attention on the LCN, it should commit a greater proportion of its intelligence effort to Afro-lineal groups. As DEA Special Agent-in-Charge Ashton testified, "We need to recognize and identify the existence of these criminal organizations, and we need to develop and share strategic intelligence."
Law enforcement agencies must also share their intelligence routinely in a true spirit of cooperation. The DEA's Ashton noted, "It is important that we communicate and cooperate in these investigations."
The Border Anti-Drug Team (BAT), described by Somerset County Prosecutor Bissell, is a good example of successful cooperation that should be emulated. Efforts by groups such as Concerned Officers Organization on Gang Activities (CO3GA) should be encouraged.
The Narcotics and Organized Crime Management and Analytical Database (NOMAD) should be expanded to more municipal police departments. As part of the Attorney General's Statewide Narcotics Task Force, NOMAD provides a computer database to assist its participants in assessing the scope of illegal narcotics and organized criminal activity in New Jersey. Present federal funding conditions,however, place restrictions on the use of federal grants for such a project. This, and the absence of sufficient state funds, has prevented the expansion of NOMAD to significant local police departments.
In an effort to determine how familiar New Jersey law enforcement agencies are with Afro-lineal organized criminal groups operating in their areas, the Commission sent surveys to various law enforcement agencies throughout the State. Each agency was asked to identify groups operating within its jurisdiction, the memberships and structures of these organizations, their characteristics, and their methods of operation, including their criminal activities.
A total of 65 surveys were distributed. Forty-nine agencies (approximately 75 percent) responded. Seventeen of the 49 responding agencies indicated that they did not have any information to report. SCI Special Agent Bruce C. Best testified why the survey results were disturbing:
Some of the 17 [agencies] that reported having no information are in localities where other agencies reported significant activities by Afro-lineal criminal groups. Whether agencies are not sharing their intelligence, or do not wish to acknowledge that there is a problem, is unclear. The result is that the collective arm of law enforcement has not established the necessary unified effort against these criminal organizations.
[T]he fact that the response rate was only about 75 percent indicates that the desired level of cooperation among law enforcement agencies has not been achieved. This is disturbing in view of the fact that our own intelligence indicates that there are significant problems with Afro-lineal criminal groups in several of the jurisdictions that did not respond to the survey.
Special Agent Best summarized the wide variations in recognition and coping with the problem of Afro-lineal organized crime among law enforcement agencies throughout New Jersey:
[T]here is a widespread activity of these groups. There are some jurisdictions, including several that we've heard from [in the public hearing,] which are aggressive in developing information about them, cooperative with other agencies to promote prosecution and willing to share information. On the other hand, several agencies deny the existence of organized Afro-lineal criminal activity, and we find that they either have very little information concerning the leadership, structure or membership or they are negligent in sharing intelligence with other agencies.
To deal effectively with certain groups, it is necessary to have multi-jurisdictional cooperation on a national scale. For example, Nigerian criminal groups involved in fraud schemes are highly mobile and use fictitious means of identification. Just as in the case of Jamaican posse figures, mobility and concealment of identity have caused significant problems for law enforcement. The U.S. Bureau of Alcohol, Tobacco and Firearms (ATF) created a national intelligence data base on the various aliases, nicknames and social security numbers utilized by the Jamaican criminals. A similar program should be established for Nigerian criminals in order to link individuals to frauds perpetrated in diverse jurisdictions. Such a system, including photographic elements, is especially important since Nigerian criminals often use the identities of legitimate individuals. As local law enforcement is the first line of defense against Nigerian fraud schemes, access to such a national data base should be permitted at the local level.
TARGET, EXPOSE AND ISOLATE LEADERS
Working cooperatively, law enforcement should identify and target the leaders of organized criminal groups for the most attention and the severest punishment. Effective use of federal and state "drugkingpin" statutes should be a priority. When the leaders are arrested, they should be denied bail if the government can prove that they pose a danger to the community. If they are granted bail, their trials should be expedited so that they can be removed from the community as soon as possible. Courts should be given the resources to handle cases more quickly. After targeted leaders are incarcerated, they should be so closely monitored that they can have no continuing influence on their organizations.
DEA Special Agent-in-Charge Ashton connected the targeting of leaders to narcotic demand reduction efforts:
We need to vigorously pursue our demand reduction programs and quickly remove criminal leaders from the community before they have the opportunity to establish themselves as role models for the young.
Special Agent Ashton described for Commissioner Evenchick the coordinated effort among federal, state and local law enforcement that eventually led to the successful prosecution of Wayne Pray and the serious disruption of his organized criminal group, The Family:
In general, I'd have to say that it was more a concerted, concentrated and cooperative enforcement effort which directed and targeted Mr. Pray. My experience has been that if an individual is involved in criminal activity and we target and direct our efforts towards him, we will develop the sources of information and be able to take him or to arrest him. That's what happened in the Pray case. It was a more concerted effort, a cooperative effort that we were able to develop informants and sources of information which were able to lead us to his arrest.
Similar coordinated efforts have proven successful elsewhere. Since the creation in Philadelphia of the Violent Traffickers Project, which includes federal, state and local officials, approximately 250 individuals have been indicted, over 200 have been detained without bail, and the conviction rate is 100 percent.
In July 1990, coordinated law enforcement, assisted by substantial information from people in affected communities, obtained a federal indictment in Philadelphia against 46 leaders and members of a Jamaican-led organization called the Grandison Cocaine and Crack Organization. The alleged ringleaders, Derrick Anthony Grandison and Cecil Everard Walters, both Jamaican citizens who have been living in the United States for several years, were charged under the federal "drug kingpin" statute, which provides for a mandatory minimum sentence of 20 years in jail and a maximum of life inprisonment. The group stored, manufactured, prepared and distributed cocaine from 56 locations throughout Philadelphia and three others in Brooklyn, Far Rockaway and Staten Island in New York.
The Camden Police detectives described for the commissioners the difficulties encountered in focusing law enforcement resources on the leaders of the criminal groups:
DETECTIVE GEORGE JOYNER: In reference to the 1,200 [drug arrests made by Camden Police in 1989 and 900 made by the Camden County Prosecutor's vice unit], we have a high rate of recidivists. … [T]he same guys are arrested two or three times within one year for the same activity. … We don't have a super criminal population. We have a group that is locked into that point. … [W]e have the same thing over and over, a small number of people continuously being arrested and just repeat over and over and over, and these kids range from, how old?
DETECTIVE LEONARD HALL: Twelve.
DETECTIVE JOYNER: You'll get 12 and 14-year old kids who might get arrested two or three times within a three-month period, so it's not a large number of criminals, justa large number of arrests on the same criminals.
COMMISSIONER DUMONT: What is the answer to the recidivism?
DETECTIVE LOUIS MUZYCZEK: I think we have to get down to the bone. We have to go after the individuals that are providing the narcotics in the city, these people that are insulated by other people working for them. … [W]e fill our jails up with just street corner dealers. It's a revolving door for them; we don't have the space. If we had the manpower to sweep our streets initially and then target the kingpins and work towards putting them away, they are the people that organize these youth and impress them to go out and do this. These are the people that we have to show the public we are going after. If we don't have the drug kingpins who provide the source, we won't have the cancer.
COMMISSIONER DUMONT: That says to me, though, you are not getting enough cooperation from the people lower down. Either their sentences are not severe enough, that there is not enough pressure put on them to force them to cooperate against the kingpins [or] there is too much insulation there.
DETECTIVE MUZYCZEK: That's correct too.
COMMISSIONER MERIN: Do you find that there is a great deal of frustration with the judicial system, people that will come in and get out on bail and have that lengthy period of time between the time they are apprehended and when they actually go to trial?
DETECTIVE HALL: Well, I do, because basically if you give a guy a year, … he does four months. That means he's finished with his time, and four months later we got him again …. [I]f he didn't [plead guilty and] take a year['s sentence], he's out there [on bail] for a year to a year and a half before he comes to trial. So these guys are actually laughing at you. He gets caught with $2,000 [one] day. If you let him out of jail and you catch him five days later, [he's] got 2,000 more dollars in his pocket.
COMMISSIONER MERIN: How do you feel about the concept of preventive detention that would allow someone to be held in jail until the trial comes up?
DETECTIVE HALL: That would be good, very good.
COMMISSIONER MERIN: I know [U.S.] Senator [Edward] Kennedy … had introduced that proposal several years ago …. [I]t's a controversial idea, and many people are coming to the conclusion that for those kingpins, for those people that were leaders, it would be beneficial to keep them behind bars until their trial comes up.
CHAIRMAN ZAZZALI: … [T]hat new State corrections facility [in Camden] was built what, two and a half years ago?
DETECTIVE MUZYCZEK: Yes.
CHAIRMAN ZAZZALI: It was built to house 450 people?
DETECTIVE HALL: Yes.
CHAIRMAN ZAZZALI: The population today is?
DETECTIVE HALL: 1,300.
CHAIRMAN ZAZZALI: Gone from 450 to 1,300 in a brand new facility in two and ahalf years. And there is a lawsuit over that brought by the Public Advocate against the Attorney General and the people in Camden County, am I correct?
DETECTIVE HALL: Yes, sir.
CHAIRMAN ZAZZALI: The Special Master, Justice Schreiber, came down with a recommendation just two weeks ago … telling the county to take out how many, 450, I think?
CHAIRMAN ZAZZALI: Just trying to demonstrate, without passing judgment on any issue on anyone, the multidimensional complex nature of the problem. I share Commissioner Merin's feelings.
COMMISSIONER MERIN: I think at the beginning of 1982 there were about 7,000 State prison cells, and at the end of the 1980s there were about 15,000. And clearly there are more … people that should be in prison than there are cells. And again I think that one of the recommendations might be to target those people that are going to spend time … in prison and make sure that it's the leaders, it's the kingpins, that are there and not the people that maybe can be penalized in a different fashion.
COMMISSIONER DUMONT: The problem, though goes back to my point that unless you penalize the people lower down in some form you are not going to get their cooperation to identify and prosecute the kingpins. At least you are not going to get that form of technique to be effective. It is exceedingly complex.
Elizabeth Police Detective Thomas Swan em
phasized that for some time after initial arrests E'Port
Posse members continued their violent cocaine trafficking and turf wars:
They were rapidly able to make bail, despite the fact they posed a danger to the community. Meanwhile, priority for trials was given to incarcerated individuals unable to make bail because they didn't have the resources of an organization behind them. Therefore, the arrested members of the Pretlow gang continued to prey on the community for lengthy periods.
As part of the effort to thwart the ability of the leaders of organized criminal groups to accumulate wealth and power, authorities should devote more resources to tracing the investment of illegal gains in legitimate businesses. Taxation officials should be more involved in this process in cooperation with other law enforcement officials.
RETAIN AND EXPAND ORGANIZED CRIME FIGHTING TOOLS
Existing law enforcement tools, such as electronic surveillance, which have proven so successful in the fight against La Cosa Nostra, should be extended to deal with equally dangerous groups that have thus far not received equal attention. Somerset County Prosecutor Bissell related how electronic surveillance and law enforcement cooperation helped to defeat the Isaac Wright group and a would-be successor:
There is no question that we would not have had the success in this operation without the availability of that electronic surveillance, and we certainly need that. And we are going to have to develop greater capability, because while we have the capability with respect to land line telephones and the like, they are now into a new generation of mobile cellular telephones, telephone pagers and those kind of things.
Andrew Merola, Gambino / Gotti Family
ANDREW MEROLA was one of the Gambino Crime Family's highest ranking members in New Jersey
USAO#2005R00840 RDW/LFS
UNITED STATES OF AMERICA : HON.
– vs  : Crim. No. 08
ANDREW MEROLA,also known as "Andrew Knapik,"RALPH CICALESE,CHARLES MUCCIGROSSO,also known as "Buddy Musk,"KYLE RAGUSA,JOHN TIZIO,MARTIN TACCETTA,GENNARO FORTE,JUSTIN CERRATO,CHARLES RUSSO,VINCENT DEROGATIS,ERIC MAIONE,CARMINE MAIONE,CHRISTOPHER DOSCHER,ANTHONY MARRA,EDWARD DEAK,MICHAEL URGOLA,JOSEPH MANZELLA,JOHN CATALDO,JONATHAN LANZA,PAUL LANZA,JOSEPH SCHEPISI,INDIA FUGATE, and VINCENT FICHERA, :: : : : : : : : : : : : : : : : : : : : : : : : : Title 18 U.S.C. §§ 371,664, 894, 1001, 1341,1343, 1349, 1951, 1955,1962(c), 1962(d) and 2and Title 29 U.S.C. §§186 and 501(c) I N D I C T M E N T
Defendants. :
__________________________________ :
The Grand jury in and for the District of New Jersey, sitting at Newark, charges that:
At all times material to the allegations contained in
the Indictment unless otherwise indicated:
The Gambino Crime Family of La Cosa Nostra (the "Gambino Crime Family" or "the Family", was a wholly illegal organization, operating in the District of New Jersey, and elsewhere in the United States, which constituted an "enterprise" as that term is defined in Title 18, United States Code, Section 1961(4), that is, a group of individuals associated together in fact as an enterprise, which was engaged in, and the activities of which affected, interstate commerce.
"La Cosa Nostra," also known as the "mafia" or "this thing of ours," was a nationwide criminal organization, which operated through entities, including the Gambino Crime Family, as well as four other New York based families, to wit, the Luchese, Genovese, Bonanno, and Colombo organized crime families. La Cosa Nostra also included other crime families based in geographic areas, including the DeCalvacante organized crime family, which principally operated in New Jersey and the Bruno/Scarfo or Philadelphia organized crime family, which principally operated in the Philadelphia area of Pennsylvania and Southern New Jersey.
The Gambino Crime Family was a highly structured criminal enterprise with a well defined chain of command. At the top of the Family hierarchy was the "boss" who exercised absolute control over the operation of the enterprise. Below the "boss"
was an "underboss" who acted as the second in command, and a "consigliere," or advisor. Beneath the "boss," "underboss," and "consigliere" were the captains, known as "caporegimes" or "capos" or "skippers." Each captain supervised and controlled the activities of one or more groups or "crews" of individual "soldiers" or members of the Family who had been formally initiated or "made" as members of the enterprise. Members of the Family in turn often recruited and controlled the activities of various associates, each of whom functioned in a subordinate capacity and sought the protection and economic benefits to be derived from such an association and, in some instances, ultimate elevation into the ranks of "made" members. Made members were also referred to as "wise guys."
4. The Gambino Crime Family constituted an ongoing organization, whose members functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise. The principal purpose of the Gambino Crime Family was to generate money for the members and associates of the Family. This purpose was implemented by members and associates through various criminal activities, including, but not limited to, illegal gambling, collection of extensions of credit using extortionate means, extortion, fraudulent schemes and various forms of labor racketeering. Among the methods and means by which the members
of the enterprise furthered its criminal activities were the threatened and actual use of violence.
5. The Gambino Crime Family asserted its control over members and associates through a system of loyalty, protocol and internal discipline. Each level of the Family was responsible for advising the next higher level of all proposed criminal activity. Those higher levels in turn decided whether to sanction the criminal activity of those below them. Each person associated with the Family was then obligated to keep his supervisor informed about the nature of criminal activity in which that person and those below him in the hierarchy engaged. Persons associated with the Family sometimes made tribute payments to superiors in the hierarchy for the privilege of association with the Families. The higher levels of the Family also resolved disputes arising among lower level members and their associates and assisted in resolving disputes with members of other crime families. Violation of this duty of loyalty, or a failure to abide by the chain of command or rules of protocol, or a failure to share profits as required, or interference with operation of the enterprise could result in serious disciplinary action, including bodily harm and death.
Defendants and Entities
Defendant ANDREW MEROLA, also known as "Andrew Knapik," was a made member of the Gambino Crime Family La Cosa Nostra and one of the Gambino Crime Family's highest ranking members in New Jersey. MEROLA was in charge of and directed the various criminal activities of a group of associates or crew of the Gambino Crime Family ("Merola crew") which activities included illegal gambling, collection of extensions of credit by extortionate means, extortion, wire fraud, and labor racketeering.
Defendant RALPH CICALESE was an associate of the Gambino Crime Family and a member of Merola's crew. Defendant CICALESE reported directly to defendant ANDREW MEROLA and was MEROLA's right-hand man. One of defendant CICALESE's primary responsibilities was to oversee and supervise most of the gambling agents in defendant MEROLA's gambling operation. CICALESE also assisted MEROLA in carrying out the crew's labor racketeering activities.
Defendant CHARLES MUCCIGROSSO, also known as "Buddy Musk," was a made member of the Gambino Crime Family, a high ranking member of the Gambino LCN Family in New Jersey, and a member of Merola's crew. MUCCIGROSSO was involved in labor racketeering and fraudulent schemes on behalf of the crew.
9. Defendant KYLE RAGUSA was an associate of the Gambino
Crime Family and a member of Merola's crew. Defendant RAGUSA reported directly to defendant MEROLA. RAGUSA was involved in illegal gambling, conspiring to collect extensions of credit by extortionate means, and wire fraud.
10. Defendant JOHN TIZIO was an associate of the Gambino Crime Family and a member of Merola's crew. Similar to RAGUSA, defendant TIZIO reported directly to defendant MEROLA and was involved in conspiring to collect extensions of credit by extortionate means and wire fraud.
11. Defendant MARTIN TACETTA was a made member and former underboss of the New Jersey faction of the Lucchese Crime Family. TACETTA was involved in a conspiracy to collect an extension of credit by extortionate means as well as labor racketeering. Illegal Gambling
12. Defendants GENNARO FORTE, JUSTIN CERRATO, CHARLES RUSSO, VINCENT DEROGATIS, ERIC MAIONE, CHRISTOPHER DOSCHER, ANTHONY MARRA, and EDWARD DEAK were involved in the Merola crew's gambling operation as gambling agents. As gambling agents they controlled and were responsible for any bettors they brought into the gambling operation. They also physically collected and paid out gambling wins and losses on behalf of defendants MEROLA and CICALESE and received a percentage of any losses incurred by bettors in their respective packages. Bets were placed by
individual bettors over an internet website that operated overseas and by telephone calls placed to a toll free telephone number. Bets would be placed on sporting events as well as casino-style gambling.
13. Defendant CARMINE MAIONE assisted his son, defendant ERIC MAIONE, by meeting with either defendant CICALESE and/or defendant MEROLA in order to collect or pay out gambling wins and losses from ERIC MAIONE's gambling package. Local 1153
14. Local 1153 of the Laborers International Union of North America ("Local 1153"), headquartered in Bloomfield, New Jersey, was a "labor organization," as that term is defined in Title 29, United States Code, Sections 142(3), 152(5), 402(i) and (j). Local 1153 represented, sought to represent, and would have admitted to membership the employees of companies who performed laborer's work in Essex County, New Jersey. Local 1153 through its officers and agents and on behalf of its members, entered into collective bargaining agreements ("CBA") with employers that employed construction laborers, including among others, masons, plasterers, carpenters and other building and construction crafts. These agreements contained provisions pertaining to conditions of employment, such as hours, overtime, shifts, holidays, wages and fringe benefits.
15. Local 1153, through its officers, agents,
employees, and representatives, also ensured that employers made contributions on behalf of Local 1153's members into several employee benefits plans, including a welfare fund, pension fund, and annuity fund, among others (hereinafter collectively "Local 1153 Benefit Funds"). The contribution payments were based upon the amount of hours that union employees worked. The Local 1153 Benefit Funds were subject to the provisions of Title I of the Employee Retirement Income Security Act of 1974 (commonly known as "ERISA"), Title 29, United States Code, Section 1001, et. seq.
Defendant MICHAEL URGOLA was the Business Manager of Local 1153 and under Local 1153's constitution and bylaws, the union's principal officer with primary authority for running the day-to-day operations of the union. Among his powers and duties, defendant URGOLA appointed all Business Agents and Job Stewards, and he approved all applicants' requests for membership into the union. As alleged herein, URGOLA was involved in the embezzlement of union assets, in particular, union membership cards/books, as well as a wire fraud scheme to bypass Local 1153's out-of-work list, that is, a list of employees and Local 1153 members waiting their turn for work referrals in accordance with union hiring rules.
Defendant JOSEPH MANZELLA was an officer and employee of Local 1153, that is, Recording Secretary and a Business Agent, respectively. MANZELLA's responsibilities included representing
members of Local 1153 employed at various construction projects by, among other things, monitoring and ensuring that employers complied with their obligations under various collective bargaining agreements. As alleged herein, MANZELLA was involved in the embezzlement of union assets, in particular, union membership cards/books, the receipt of unlawful labor payments in his capacity as a union official, a wire fraud scheme to bypass Local 1153's out-of work list, as well as conspiring and attempting to extort lunch truck vendors who parked their vehicles at various construction work sites.
18. Defendant RALPH CICALESE was appointed as a Job Steward for Local 1153 in the fall of 2006 at a demolition project at the Prudential Building garage in Newark, New Jersey. The demolition work was conducted by Par Wrecking Corporation ("Par Wrecking"), located in Suffern, New York. Par Wrecking Corporation had a collective bargaining agreement with Local 1153 and employed construction laborers who were represented by and would be admitted to membership in Local 1153. Par Wrecking was an "employer" as that term is defined in Title 29, United States Code, Sections 142 and 152(2), and the employees of Par Wrecking were employed in an industry affecting commerce, namely, the construction industry.
Local 825 of the International Union of Operating Engineers (hereinafter "Local 825"), headquartered in Springfield, New Jersey, was a "labor organization" as that term is defined in Title 29, United States Code, Sections 142(3), 152(5), 402(i) and (j). Local 825 represented, sought to represent, and would have admitted to membership the employees of companies who worked as heavy equipment operators, mechanics, and surveyors. Local 825 represented approximately 7,000 members, many of whom were employed at various construction projects in New Jersey and New York. Local 825, through its officers and agents and on behalf of its members, entered into collective bargaining agreements with employers that employed operating engineers. These agreements contained provisions pertaining to conditions of employment, such as rates of pay and fringe benefits, and the circumstances under which an employer was obligated to man certain construction equipment, such as cranes, backhoes, forklifts, and booms, with Local 825 operating engineers, among other things.
Local 825, through its officers, agents, employees, and representatives, also ensured that employers made contributions on behalf of Local 825's members into several employee benefits plans, including a welfare fund, pension fund, and annuity fund, among others (hereinafter collectively "Local
825 Benefit Funds"). The Local 825 Benefit Funds were subject to the provisions of Title I of the Employee Retirement Income Security Act of 1974, Title 29, United States Code, Section 1001, et. seq.
21. Defendant JOHN CATALDO was an employee, that is, a Business Representative and Organizer for Local 825 of the International Union of Operating Engineers and was responsible for meeting with and recruiting non-union contractors/employers. As alleged herein, CATALDO conspired to and did receive unlawful labor payments in his capacity as a Local 825 union official for failing to enforce provisions of the collective bargaining agreement and also participated in a wire fraud scheme to provide defendants MEROLA and MUCCIGROSSO with no show/low show jobs at a construction project at the Goethals Bridge. Fiduciaries of Local 1153 and Local 825
22. Defendants MICHAEL URGOLA, JOSEPH MANZELLA, and RALPH CICALESE, as Business Manager, Business Agent, and Job Steward of Local 1153, respectively, and defendant JOHN CATALDO, as Organizer of Local 825, were subject to Title 29, Section 501(a) of the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA") governing labor unions, as "officers, agents, shop stewards, and other representatives" of their respective labor organizations as described in Section 3(q) of the LMRDA, 29
U.S.C. 402(q). Pursuant to Section 501(a) of the LMRDA, they
therefore occupied positions of trust in relation to such organizations and their respective members as a group.
23. As a consequence of their positions of trust, the defendants MICHAEL URGOLA, JOSEPH MANZELLA, RALPH CICALESE, and JOHN CATALDO were subject to the following fiduciary duties: (i) the duty to hold the money and property of their respective labor organization solely for the benefit of such organizations and members; (ii) to refrain from dealing with their respective labor organizations as an adverse party or on behalf of an adverse party in any matter connected to his duties; (iii) to refrain from holding or acquiring any pecuniary or personal interest that conflicted with the interest of their respective labor organizations; and (iv) to account to their respective labor organizations for any profit received in whatever capacity in connection with transactions conducted by the fiduciary or under his or her direction on behalf of such organization. Barone Construction
24. Barone Construction & Equipment Corporation (hereinafter "Barone Construction"), was a family-operated business located in Kenilworth, New Jersey. Barone Construction, had a collective bargaining agreement with Local 825 and employed operating engineers who were represented by and would be admitted to membership in Local 825. Barone Construction was an "employer" as that term is defined in Title 29, United States
Code, Sections 142 and 152(2), and the employees of Barone Construction were employed in an industry affecting commerce, namely, the construction industry.
25. Defendant PAUL LANZA was the principal of Barone Construction and as alleged herein, was involved in a conspiracy to pay a bribe to Local 825 union official JOHN CATALDO to circumvent terms of the collective bargaining agreement. As alleged herein, PAUL LANZA also embezzled welfare fund assets by failing to pay monies due and owing to the Local 825 Benefit Funds.
26. Defendant JONATHAN LANZA was employed by his family's business Barone Construction and as alleged herein, was involved in a conspiracy to pay a bribe to Local 825 union official JOHN CATALDO to circumvent the terms of its collective bargaining agreement as well as the embezzlement of welfare fund assets by failing to pay monies due and owing to the Local 825 Benefit Funds. Kiska Construction
27. Kiska Construction Corporation, located in Long Island City, New York ("Kiska Construction") had a collective bargaining agreement with Local 825 and employed operating engineers who were represented by and would be admitted to membership in Local
825. Kiska Construction was an "employer" as that term is defined in Title 29, United States Code, Sections 142 and 152(2),
and the employees of Kiska Construction were employed in an industry affecting commerce.
28. Defendant JOSEPH SCHEPISI was a foreman for Kiska Construction on a significant project at the New York Goethals Bridge. As alleged herein, SCHEPISI engaged in a wire fraud scheme to provide defendants MEROLA and MUCCIGROSSO with no show/low show jobs at the Goethals Bridge construction project. Lowe's Home Improvement
Defendant INDIA FUGATE was employed by Lowe's Home Improvement store ("Lowe's") as a Customer Service Associate in Patterson, New Jersey. As a Customer Service Associate, FUGATE worked at the check out registers and processed applications for Lowe's credit cards. In anticipation of defrauding Lowe's, FUGATE applied for the position at Lowe's in February 2007, at the urging of defendant ANDREW MEROLA. As alleged herein, while working at Lowe's, FUGATE engaged in wire fraud schemes to 1) defraud Lowe's through creating, and using, false bar code labels, and 2) defraud Lowe's through the use of fraudulently issued temporary credit cards.
As alleged herein, defendant VINCENT FICHERA participated in the bar code label wire fraud scheme.
COUNT 1 (Racketeering Conspiracy)
Paragraphs 1 through 30 are realleged and incorporated as if set forth in full herein.
From in or about February 2002 through in or about March 2008, in the District of New Jersey and elsewhere, the defendants
ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, CHARLES MUCCIGROSSO, also known as "Buddy Musk," KYLE RAGUSA, and
JOHN TIZIO being persons employed by and associated with an enterprise, that is, the Gambino Crime Family, an enterprise that engaged in, and the activities of which affected interstate commerce, did unlawfully and knowingly conspire with each other and others to conduct and to participate, directly and indirectly, in the conduct of the affairs of the Gambino Crime Family through a pattern of racketeering activity as defined in Title 18, United States Code, Sections 1961(1) and (5), as set forth more particularly in Paragraphs 33 through 75 below, and through the collection of unlawful debts as defined in Title 18, United States Code, Section 1961(6), as set forth more particularly in Paragraphs 76 and 77 below.
PATTERN OF RACKETEERING ACTIVITY
It was part of the conspiracy that each defendant agreed that at least two acts of racketeering activity would be committed by a conspirator in the conduct of the affairs of the enterprise.
The pattern of racketeering activity, as defined in Title 18, United States Code, Section 1961(1) and 1961(5) consisted of the following Racketeering Acts:
Racketeering Act One(Illegal Gambling Business)
35. From in or about February 2002 through in or about May 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, and KYLE RAGUSA, together with others known and unknown to the grand jury, did unlawfully and knowingly conduct, finance, manage, supervise, direct and own all and part of an illegal gambling business which (i) was a violation of Chapter 37 of Title 2C of New Jersey Statutes Annotated (N.J.S.A. §§ 2C:37-2 and 2C:37-3),
(ii) involved five or more persons who conducted, financed, managed, supervised, directed, and owned all and part of such business, and (iii) was in substantially continuous operation for a period in excess of thirty days and had a gross revenue of more than $2,000 in any single day, contrary to Title 18, United States Code, Sections 1955 and 2.
Racketeering Act Two(Conspiracy to Collect an Extension of Credit byExtortionate Means – John Doe #1)
36. On or about March 19, 2007, in the District of New Jersey, the defendants ANDREW MEROLA, also known as "Andrew Knapik," KYLE RAGUSA, and Martin Taccetta, who is not named as a defendant in this Racketeering Act, did knowingly and willfully conspire with each other and others, known and unknown to the Grand Jury, to participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect and attempt to collect from John Doe #1, an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish John Doe #1 for the non-repayment thereof, contrary to Title 18, United States Code, Section 894.
Racketeering Act Three(Extortionate Collection of Credit Conspiracy/Extortionate Collection of Credit – Vincent Derogatis)
The defendants named below committed the following acts, either of which alone constitutes the commission of Racketeering Act 3:
(a) Extortionate Collection of Credit Conspiracy
37. From on or about January 2, 2007 through on or about February 1, 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, and JOHN TIZIO, did knowingly and willfully conspire with each other and others, known and unknown to the
Grand Jury, to participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect and attempt to collect from Vincent Derogatis an extension of credit, as defined in Title 18, United State Code, Section 891, and to punish Vincent Derogatis for the non-repayment thereof, contrary to Title 18, United States Code, Section 894.
(b) Extortionate Collection of Credit
38. From on or about January 2, 2007 through on or about February 1, 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, a/k/a "Andrew Knapik," RALPH CICALESE, and JOHN TIZIO, together with others, known and unknown to the Grand Jury, did knowingly and willfully participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect and attempt to collect from Vincent Derogatis, an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish Vincent Derogatis for the non-repayment thereof, contrary to Title 18, United States Code, Sections 894 and 2.
Racketeering Act Four(Extortionate Collection of Credit Conspiracy/Extortionate Collection of Credit – Gennaro Forte)
39. From in or about November 2006 through in or about May 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE, did knowingly and willfully conspire with each other and others, known and unknown to the Grand Jury, to participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect from Gennaro Forte, an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish Gennaro Forte for the non-repayment thereof, contrary to Title 18, United States Code, Section 894.
40. From in or about November 2006 through in or about May 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE, together with others, known and unknown to the Grand Jury, did knowingly and willfully participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect from Gennaro Forte, an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish Gennaro Forte for the non-repayment thereof, contrary to Title 18, United States Code, Sections 894 and 2.
Racketeering Act Five (Wire Fraud – Bar Code Label Scheme)
41. At all times relevant to this Indictment:
Products for sale at stores throughout the United States routinely contain a Universal Product Code (hereinafter "UPC"), also referred to as a bar code, which is a series of numbers and adjacent parallel lines of varying widths. In order to determine the price of a particular product, a cashier electronically scans the bar code label containing the UPC. This series of numbers derived from the UPC is electronically transmitted over telephone lines to a database known as the "host." After this "host" database receives this numeric sequence, it attaches the product's price that has been set by the retail company, and then transmits this price back to the individual store so that the customer is properly charged for the merchandise.
Lowe's Home Improvement (hereinafter "Lowe's") was a home improvement retailer with its corporate headquarters in Mooresville, North Carolina and with store locations in New Jersey and elsewhere. Lowe's sold, among other things, appliances, tools, a wide variety of indoor and outdoor accessories, and building supplies. Lowe's "host" database was located in Mooresville, North Carolina.
The Scheme to Defraud
42. From in or about March 2006 through in or about May 2007, in the District of New Jersey, and elsewhere, the defendants ANDREW MEROLA, a/k/a "Andrew Knapik," RALPH CICALESE, CHARLES MUCCIGROSSO, a/k/a "Buddy Musk," KYLE RAGUSA, and JOHN TIZIO, together with others, known and unknown to the Grand Jury, knowingly and willfully devised, caused to be devised, and intended to devise a scheme and artifice to defraud, and to obtain money and property from stores, including Lowe's Home Improvement, by means of false and fraudulent pretenses, representations, and promises.
Object of the Scheme and Artifice
43. The primary object of the scheme and artifice was to fraudulently obtain store merchandise at a greatly reduced price by creating, and using, false bar code labels to purchase merchandise from stores.
The Manner and Means of the Scheme to Defraud
44. It was part of the scheme and artifice to defraud that M.D., whose identity is known to the grand jury, entered a store, and sought out two similar items of merchandise, one high priced item and one substantially lower priced item. Thereafter M.D. recorded the bar code number of the substantially lowered priced item and exited the store. M.D. then created a bar code label
with the bar code number from the substantially lower priced item.
It was further part of the scheme and artifice to defraud that defendant ANDREW MEROLA and/or others returned to the store and placed the newly created bar code label for the substantially lower priced item of merchandise over the bar code label on the more expensive item of merchandise. Defendant ANDREW MEROLA and/or others would then purchase the more expensive item of merchandise, with the newly created bar code label, at the substantially lower price.
It was further part of the scheme and artifice to defraud that defendant ANDREW MEROLA and/or others would either
(i) keep the more expensive item of merchandise; (ii) sell the item to acquaintances and associates for more than they paid for it; or (iii) return the item to the store and receive an in-store credit or gift card for the full value of the item of merchandise after removing the falsely or fraudulently created bar code label.
47. On or about the dates listed below for the purpose of executing and attempting to execute such scheme and artifice to defraud, the defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, CHARLES MUCCIGROSSO, also known as "Buddy Musk," KYLE RAGUSA, and JOHN TIZIO, together with others, known and unknown to the Grand Jury, knowingly and willfully
transmitted and caused to be transmitted by means of wire communication in interstate commerce, writings, signs, signals, and sounds, that is, a series of numbers derived from the UPC that determined the price for the items of merchandise listed below to and from Lowe's stores located in New Jersey and Lowe's host database in North Carolina:
DATE OF WIRE WIRE TRANSFER
10/21/06 Series of numbers from the UPC for a Europro vacuum listed at $49.97 ratherthan from the UPC for a Dyson vacuumcleaner valued at $549.99
3/16/07 Series of numbers from the UPC for a chainsaw listed at $44.97 rather than
from the UPC for a more expensivechainsaw valued at $374
3/17/07 Series of numbers from the UPC for a paintsprayer listed at $58 rather thanfrom the UPC for a more expensivepaintsprayer valued at $624
3/25/07 Series of numbers from the UPC for a battery charger listed at $39.98 ratherthan from the UPC for a welding machinevalued at $669
3/28/07 Series of numbers from the UPC for a Europro vacuum listed at $49.97 ratherthan from the UPC for a Dyson vacuumcleaner valued at $549.99
3/31/07 Series of numbers from the UPC for a paintsprayer listed at $58 rather thanfrom the UPC for a more expensivepaintsprayer valued at $624.
4/01/07 Series of numbers from the UPC for a welding machine purchased for$58 and then returned for its full
value of $669, contrary to Title 18, United States Code, Sections 1343 and 2.
Racketeering Act Six (Wire Fraud – Lowe's Credit Card Application Scheme)
48. From on or about February 18, 2007, through in or about May 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," together with India Fugate, who is not named as a defendant in this Racketeering Act, and others known and unknown to the Grand Jury, knowingly and willfully devised, caused to be devised, and intended to devise a scheme and artifice to defraud, and to obtain money and property of Lowe's Home Improvement, by means of false and fraudulent pretenses, representations, and promises.
49. The primary object of the scheme and artifice was to fraudulently obtain Lowe's customers' personal identification information in order to obtain temporary Lowe's customers' credit cards and thereafter purchase merchandise without the knowledge and permission of the true Lowe's credit card applicants.
It was part of the scheme and artifice to defraud that defendant ANDREW MEROLA recruited India Fugate to seek employment at either a Home Depot or Lowe's home improvement store where she would be in a position to access customer personal identification information.
It was further part of the scheme and artifice to defraud that on or about February 18, 2007, India Fugate applied for employment at Lowe's as a Customer Service Associate and was hired on or about March 19, 2007. As part of Fugate's employment responsibilities, she worked at the check-out register and processed applications for Lowe's credit cards. Lowe's customers who applied for a credit card were required to complete an application for credit, which Fugate would review and input the information into a computer. The information would be transmitted electronically over telephone lines to GE Consumer Finance Database located in Alpharetta, Georgia, where the application would either be accepted or declined. If the customer's credit application was approved, a temporary Lowe's credit card would be issued to the customer.
It was further part of the scheme and artifice to defraud that India Fugate would surreptitiously record the Lowe's customer's personal identification in order to access the customer's account at a future time and print an additional temporary card without the knowledge of the customer. This additional temporary card would again be issued as a result of electronic transmissions to the GE Consumer Finance Database in Georgia.
It was further part of the scheme and artifice to defraud that India Fugate provided this personal customer
information to defendant MEROLA, who in turn used the information himself and/or gave it to others, to obtain a temporary Lowe's customer credit card and thereafter purchase merchandise without the knowledge and permission of the true credit applicants or Lowe's.
54. On or about May 20, 2007, for the purpose of executing and attempting to execute such scheme and artifice to defraud, the defendant ANDREW MEROLA, also known as "Andrew Knapik," along with India Fugate, who is not named as a defendant in this Racketeering Act, and M.D., whose identity is known to the Grand Jury, knowingly and willfully transmitted and caused to be transmitted by means of wire communication in interstate commerce from New Jersey to Georgia, writings, signs, signals, and sounds, that is, a series of letters and numbers consisting of customer identification information for Lowe's customer S.K., whose identity is known to the Grand Jury, contrary to Title 18, United States Code, Sections 1343 and 2.
Racketeering Act Seven(Demand/Receipt of Unlawful Labor Payments – Barone Construction)
Paragraphs 19-26 of Count 1 of this Indictment are re-alleged and incorporated as though set forth in full herein.
From on or about January 17, 2007 through in or around March 2007, in the District of New Jersey and elsewhere, defendants ANDREW MEROLA, also known as "Andrew Knapik," along with defendants Martin Taccetta, Paul Lanza, Jonathan Lanza, and
Local 825 Organizer and employee John Cataldo, who are not named as defendants in this Racketeering Act, knowingly and willfully requested, demanded, received, and accepted, and agreed to receive and accept, and caused to be requested, demanded, received, and accepted for Local 825 employee John Cataldo, the payment, loan, and delivery of money and things of value, namely, United States currency, in an amount in excess of $1,000, from an employer, and from individuals acting in the interest of the employer, namely, Barone Construction, whose employees were employed in an industry affecting commerce, namely, the construction industry, and whose employees such labor organization, to wit: Local 825, represented, sought to represent, and would have admitted to membership, contrary to Title 29, United States Code, Sections 186(a)(2), (b)(1), and (d)(2) and Title 18, United States Code, Section 2.
Racketeering Act Eight (Extortion Conspiracy/Extortion – Lunch Truck Vendors)
(a) Extortion Conspiracy
57. From in or about January 2006 through in or about February 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE, along with Joseph Manzella, who is not named as a
defendant in this Racketeering Act, did knowingly and willfully conspire with each other and with others to obstruct, delay and affect interstate commerce and the movement of an article and commodity in commerce by extortion, in that the defendants and others agreed to obtain property, to wit: cash and check payments from lunch truck vendors, in connection with permitting the lunch truck vendors to park their lunch trucks at various desirable construction work sites, with the consent of the lunch truck vendors, such consent being induced by the wrongful use of fear, including the fear of economic harm, contrary to Title 18, United States Code, Section 1951.
(b) Attempted Extortion of A.V.
58. From at least as early as December 2006 through in or about February 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE, along with Joseph Manzella, who is not named as a defendant in this Racketeering Act, did knowingly and willfully attempt to obstruct, delay and affect interstate commerce and the movement of an article and commodity in commerce by extortion, in that the defendants and others attempted to obtain property, to wit: cash and check payments from A.V., whose identity is known to the Grand Jury, in connection with permitting A.V. to park his lunch truck at desirable construction work sites, with the consent of A.V., such consent being induced by the wrongful use
of fear, including the fear of economic harm, contrary to Title
18, United States Code, Sections 1951 and 2.
Racketeering Act Nine
(Demand/Receipt of Unlawful Labor Payments –
Par Wrecking Corporation)
59. Paragraphs 14-18, and Paragraphs 22-23 are re-alleged and incorporated as though set forth in full herein.
60. From in or around the Fall of 2006 through in or around December 2006, in the District of New Jersey and elsewhere, defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE, a Job Steward of Local 1153 and a representative of employees at the Prudential Building parking garage demolition project, along with Joseph Manzella, an officer and employee of Local 1153, who is not named as a defendant in this Racketeering Act, knowingly and willfully requested, demanded, received, and accepted for Joseph Manzella and defendant RALPH CICALESE, the
payment, loan, and delivery of money and things of value, namely, United States currency, in an amount in excess of $1,000, from an employer, and from individuals acting in the interest of the employer, namely, Par Wrecking Corporation, whose employees were employed in an industry affecting commerce, namely, the construction industry, and whose employees such labor organization, to wit: Local 1153, represented, sought to represent, and would have admitted to membership, contrary to Title 29, United States Code, Sections 186(a)(1) and(2), (b)(1), and (d)(2), and Title 18, United States Code, Section 2.
Racketeering Act Ten (Embezzlement of Union Assets/Local 1153 Membership Cards/Books)
Paragraphs 14-18, and Paragraphs 22-23 of Count 1 of this Indictment are re-alleged and incorporated as though set forth in full herein.
From in or around January 2006, through in or around February 2007, in the District of New Jersey and elsewhere, defendants ANDREW MEROLA, also known as "Andrew Knapik" and RALPH CICALESE, along with Local 1153 Business Manager Michael Urgola and Local 1153 Business Agent Joseph Manzella, being officers and persons employed by Local 1153 and not named as defendants in this Racketeering Act, did embezzle, steal and unlawfully and willfully abstract and convert to their own use the moneys, funds, securities, property, and other assets of Local 1153, to wit: application documents and membership cards pertaining to individuals proposed for membership in Local 1153 and the LIUNA,
contrary to Title 29, United States Code, Section 501(c) and Title 18, United States Code, Section 2.
Racketeering Act Eleven (Honest Services Wire Fraud – Bypass Shaping Lists)
From in or about January 2006 through in or about April 2007, in the District of New Jersey, and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE,
along with Local 1153 Business Manager Michael Urgola and Local
1153 Business Agent Joseph Manzella, being officers and employees of Local 1153 and not named as defendants in this Racketeering Act, knowingly and willfully devised, caused to devise, and intended to devise a scheme and artifice to defraud (1) Local 1153 members of their property, that is, money paid as wages and employee benefits that such Local 1153 union members would have obtained but for the defendant's scheme and artifice to defraud and (2) the intangible right of Local 1153 and its members to the honest services which defendant RALPH CICALESE and Local 1153 officers and employees Michael Urgola and Joseph Manzella owed to Local 1153 and its members pursuant to Section 501(a) of the LMRDA, the Laborers International Union of North America ("LIUNA")
Uniform Constitutions, the LIUNA Ethical Practices Code, and the LIUNA Job Referral Rules.
It was part of the scheme and artifice to defraud that Michael Urgola and Joseph Manzella used their positions as Business Manager and Business Agent of Local 1153, respectively, to provide defendant ANDREW MEROLA and his friends and criminal associates with jobs that they would otherwise not be able to obtain, because these friends and criminal associates of defendant MEROLA (a) were not entitled to journeymen membership in Local 1153 and LIUNA and (b) were not entitled to work referrals ahead of other employees and Local 1153 members awaiting their turn on Local 1153's out-of-work list in accordance with union hiring rules.
For the purpose of executing the scheme and artifice, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE, along with Michael Urgola and Joseph Manzella, knowingly and willfully transmitted and caused to be transmitted by means of wire communication in interstate commerce, writings, signs, signals, and sounds, to wit: telephone calls. The telephone calls, which were initiated or received on T-Mobile cellular telephones in New Jersey, were routed through mobile switching centers in either New York or Pennsylvania. The telephone calls were made on the dates listed below, with individuals whose identities are known to the Grand Jury, in an effort to improperly obtain employment for defendant MEROLA's friends and criminal associates:
DATE OF WIRE DESCRIPTION OF TELEPHONE CALL
2/19/07 Incoming call to CICALESE from H.C.
at 7:31 p.m. to CICALESE's T-Mobile
cellular telephone
2/26/07 Outgoing call from MEROLA and CICALESE
to S.D. at 3:53 p.m. from CICALESE'S
T-Mobile cellular telephone
4/02/07 Incoming call to CICALESE from F.M. and
MEROLA at 10:26 a.m. to CICALESE's
4/02/07 Incoming call to CICALESE from MEROLA to
CICALESE at 10:57 a.m. to CICALESE's
4/06/07 Incoming call to CICALESE from F.M. at
9:58 a.m. to CICALESE's T-Mobile cellular
4/06/07 Outgoing call from CICALESE to A.W.
at 8:04 p.m. from CICALESE's T-Mobile
Incoming call to CICALESE from F.M. at 2:31 p.m. to CICALESE's T-Mobile cellular telephone,
contrary to Title 18, United States Code, Sections 1343, 1346 and
Racketeering Act Twelve (Wire Fraud – No Show/Low Show Jobs – Kiska Construction)
Paragraphs 21, 27 and 28 of Count 1 of this Indictment are re-alleged and incorporated as though set forth in full herein.
From in or about March 2006, through in or about May 2007, in the District of New Jersey, and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and CHARLES MUCCIGROSSO, also known as "Buddy Musk," along with John Cataldo, Local 825 Organizer, and Joseph Schepisi, foreman for Kiska Construction, who were not named as defendants in this Racketeering Act, knowingly and willfully devised and intended to devise a scheme and artifice to defraud Kiska Construction and to obtain money and property by means of false and fraudulent pretenses, representations and promises.
69. The object of the scheme and artifice was for defendants ANDREW MEROLA, also known as "Andrew Knapik," and CHARLES MUCCIGROSSO, also known as "Buddy Musk," to fraudulently obtain a salary payment for weeks that they did not work at their jobs as
full-time operating engineers for Kiska Construction on the Goethals' Bridge Project.
It was part of the scheme and artifice to defraud that defendants ANDREW MEROLA, also known as "Andrew Knapik," and CHARLES MUCCIGROSSO, also known as "Buddy Musk," would alternate work weeks whereby one of them would work one week and the other would work the next week, although both were hired to work as, and were paid as, full-time employees of Kiska Construction at the Goethals' Bridge Project.
It was further part of the scheme and artifice to defraud that defendants ANDREW MEROLA, also known as "Andrew Knapik," and CHARLES MUCCIGROSSO, also known as "Buddy Musk," had John Cataldo warn them if and when Cataldo learned that someone from Local 825 would be stopping by the Goethal's Bridge Project so that they could be on the job site when it was inspected.
It was further part of the scheme and artifice to defraud that defendants ANDREW MEROLA, also known as "Andrew Knapik," and CHARLES MUCCIGROSSO, also known as "Buddy Musk," had Joseph Schepisi arrange for MEROLA and MUCCIGROSSO to be paid for working at the Goethal's Bridge Project on dates and times that MEROLA and MUCCIGROSSO were not in fact working at the Goethal's Bridge Project.
It was further part of the scheme and artifice to defraud that defendants ANDREW MEROLA, also known as "Andrew Knapik," and CHARLES MUCCIGROSSO, also known as "Buddy Musk,"
along with Joseph Schepisi, together with others, would and did
submit and cause to be submitted false information to Kiska Construction regarding hours worked by defendants MEROLA and MUCCIGROSSO, claiming that they had worked certain hours when, in fact, they had worked less hours, thereby over-reporting to Kiska Construction the wages owed to defendants MEROLA and MUCCIGROSSO.
74. On or about the dates listed below, for the purpose of executing this scheme and artifice to defraud, defendants ANDREW MEROLA, also known as "Andrew Knapik," and CHARLES MUCCIGROSSO, also known as "Buddy Musk," along with Joseph Schepisi, did knowingly and willfully transmit and cause to be transmitted by means of wire communication, namely by computer, in interstate commerce from New York to New Jersey, writings, signals, and sounds, that is, the hours and dates of employment of defendants ANDREW MEROLA and CHARLES MUCCIGROSSO:
DATE OF WIRE WIRE COMMUNICATION 3/20/06 Payroll for week ending 3/19/06 4/17/06 Payroll for week ending 4/16/06 5/22/06 Payroll for week ending 5/21/06 6/19/06 Payroll for week ending 6/18/06 7/24/06
Payroll for week ending 7/23/06 8/21/06
Payroll for week ending 9/17/06 10/23/06 Payroll for week ending 10/22/06
11/20/06 Payroll for week ending 11/19/06 2/05/07
Payroll for week ending 2/04/07 contrary to Title 18, United States Code, Sections 1343 and 2.
Racketeering Act Thirteen (New Jersey Criminal Code Bribery)
75. On or about April 24, 2007, in the District of New Jersey, and elsewhere, the defendant KYLE RAGUSA, knowingly and willfully offered, conferred, and agreed to confer, upon a public servant, that is, an employee of the State of New Jersey, Division of Motor Vehicles, whose identity is known to the Grand Jury, a pecuniary benefit in the amount of $100, as consideration for that public servant's decision, opinion, recommendation, and exercise of discretion, regarding defendant KYLE RAGUSA's New Jersey driver's license examination roadside test, contrary to N.J.S.A. 2C:27-2.
COLLECTION OF UNLAWFUL DEBTS
76. It was further part of the racketeering conspiracy that each defendant named below agreed to the collection of an unlawful debt in the conduct of the affairs of the enterprise, that is a debt that was (a) incurred and contracted in gambling activity which was in violation of the laws of the United States and New Jersey, and which was incurred in connection with the business of gambling in violation of the laws of the United States and New Jersey; and (b) that was unenforceable under the laws of New Jersey, in whole, and in part, as to principal and interest
because of the laws relating to usury, and which was incurred in
connection with the business of lending money and anything of value at rates that were usurious, in that they were greater than permitted under the laws of New Jersey, and where the usurious rates were at least twice the enforceable rate.
77. In particular, in conducting the affairs of the enterprise, the defendants named herein, and others, agreed to the collection of the unlawful debts listed below: Unlawful
Debt. No Date Defendant From Type 1 1/07-A. MEROLA Vincent gambling 2/07 R. CICALESE Derogatis
J. TIZIO
2 12/05-A. MEROLA Gennaro usurious 5/07 R. CICALESE Forte loan
3 9/03-A. MEROLA Justin gambling 5/07 R. CICALESE Cerrato
4 1/07-A. MEROLA Christopher gambling 5/07 R. CICALESE Doscher
5 2/07-A. MEROLA Kyle gambling 5/07 Ragusa
6 9/03-A. MEROLA Charles gambling 5/07 R. CICALESE Russo
7 11/06-A. MEROLA Eric gambling 5/07 R. CICALESE Maione
8 3/07-A. MEROLA Carmine gambling 5/07 R. CICALESE Maione
9 2/07-A. MEROLA Anthony gambling 5/07 R. CICALESE Marra
10 9/06-A. MEROLA Edward gambling 5/07 Deak
In violation of Title 18, United States Code, Section 1962(d).
COUNT 2 (Racketeering – Pattern of Racketeering Activity)
Paragraphs 1 through 30 and 34 through 75 of Count 1 are re-alleged and incorporated as though set forth in full herein.
From in or about February 2002 through in or about March 2008, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, CHARLES MUCCIGROSSO, also known as "Buddy Musk," KYLE RAGUSA, and
JOHN TIZIO being persons employed by and associated with the racketeering enterprise herein, that is, the Gambino Crime Family, which enterprise was engaged in, and the activities of which affected interstate commerce, did unlawfully and knowingly conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity, as defined by Title 18, United States Code, Sections 1961(1) and 1961(5) and as set forth in Racketeering Acts One through Thirteen of Count 1 of this Indictment.
In violation of Title 18, United States Code, Sections 1962(c) and 2.
COUNT 3
(Racketeering – Collection of Unlawful Debt)
Paragraphs 1 through 30, 76 and 77 of Count 1 are re-alleged and incorporated as though set forth in full herein.
From in or about February 2002 through in or about March 2008, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, and
JOHN TIZIO being persons employed by and associated with the racketeering enterprise herein, that is, the Gambino Crime Family, which enterprise was engaged in, and the activities of which affected interstate commerce, did unlawfully and knowingly conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through the collection of an unlawful debt, as defined by Title 18, United States Code, Section 1961(6), and as set forth in unlawful debts numbered 1 and 2 in Paragraph 77 of Count 1 of this Indictment.
COUNT 4 (Illegal Gambling Business)
82. From in or about February 2002 through in or about May
2007, in the District of New Jersey and elsewhere, the defendants
ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, KYLE RAGUSA, GENNARO FORTE, JUSTIN CERRATO, CHARLES RUSSO, VINCENT DEROGATIS, ERIC MAIONE, CARMINE MAIONE,
CHRISTOPHER DOSCHER,
ANTHONY MARRA, and EDWARD DEAK
together with others, did knowingly and willfully conduct,
finance, manage, supervise, direct and own all and part of an
illegal gambling business which (i) was a violation of Chapter 37
of Title 2C of New Jersey Statutes Annotated (N.J.S.A. §§ 2C:37-2
and 2C:37-3), (ii) involved five or more persons who conducted,
financed, managed, supervised, directed, and owned all and part of
such business, and (iii) was in substantially continuous operation
for a period in excess of thirty days and had a gross revenue of
more than $2,000 in any single day.
In violation of Title 18, United States Code, Sections 1955
and 2.
(Conspiracy to Collect an Extension of Creditby Extortionate Means – John Doe #1)
83. On or about March 19, 2007, in the District of New Jersey and elsewhere, the defendants
ANDREW MEROLA,
also known as "Andrew Knapik,"
MARTIN TACCETTA,
did knowingly and willfully conspire with each other and others, known and unknown to the Grand Jury, to participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect from John Doe #1, an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish John Doe #1 for the non-repayment thereof.
In violation of Title 18, United States Code, Section 894.
(Conspiracy to Collect an Extension of Creditby Extortionate Means – Vincent Derogatis)
84. From on or about January 2, 2007 through on or about February 1, 2007, in the District of New Jersey and elsewhere, the defendants
ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, and JOHN TIZIO
did knowingly and willfully conspire with each other and others, known and unknown to the Grand Jury, to participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect from Vincent Derogatis an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish Vincent Derogatis for the non-repayment thereof. In violation of Title 18, United States Code, Section 894.
COUNT 7 (Collection of an Extension of Credit by Extortionate Means – Vincent Derogatis)
together with others, did knowingly and willfully participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect and attempt to collect from Vincent Derogatis an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish Vincent Derogatis for the non-repayment thereof. In violation of Title 18, United States Code, Sections 894 and 2.
COUNT 8 (Conspiracy to Collect an Extension of Credit by Extortionate Means – Gennaro Forte)
86. From in or about November 2006 through in or about May 2007, in the District of New Jersey and elsewhere, the defendants ANDREW MEROLA,also known as "Andrew Knapik,"and
RALPH CICALESE did knowingly and willfully conspire with each other and others, known and unknown to the Grand Jury, to participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect from Gennaro Forte, an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish Gennaro Forte for the non-repayment thereof.
COUNT 9 (Collection of an Extension of Credit by Extortionate Means – Gennaro Forte)
RALPH CICALESE together with others, did knowingly and willfully participate in the use of extortionate means, as defined in Title 18, United States Code, Section 891(7), to collect and attempt to collect from Gennaro Forte an extension of credit, as defined in Title 18, United States Code, Section 891, and to punish Gennaro Forte for the non-repayment thereof.
In violation of Title 18, United States Code, Sections 894 and 2.
COUNT 10 (Conspiracy to Commit Wire Fraud – Bar Code Label Scheme)
The allegations contained in Paragraphs 41 through 46 of Count 1 of this Indictment are re-alleged and incorporated as though set forth in full herein.
From in or about March 2006 through in or about May 2007, in the District of New Jersey, and elsewhere, the defendants
ANDREW MEROLA,also known as "Andrew Knapik,"RALPH CICALESE,CHARLES MUCCIGROSSO,also known as "Buddy Musk,"KYLE RAGUSA,JOHN TIZIO,INDIA FUGATE,and VINCENT FICHERA
did knowingly and willfully conspire with each other and others, known and unknown to the Grand Jury, to devise, cause to devise, and intend to devise a scheme and artifice to defraud, and to obtain money and property from stores, including Lowe's Home Improvement, by means of false and fraudulent pretenses, representations, and promises, as set forth in paragraphs 41 through 46 of Count 1.
90. For the purpose of executing and attempting to execute such scheme and artifice to defraud, defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, CHARLES MUCCIGROSSO, also known as "Buddy Musk," KYLE RAGUSA, JOHN TIZIO,
INDIA FUGATE, and VINCENT FICHERA, knowingly and willfully transmitted and caused to be transmitted by means of wire communication in interstate commerce, writings, signs, signals, and sounds, that is, a series of numbers derived from the UPC that determines the price for any item of merchandise, to and from New Jersey and Lowe's host database in North Carolina, contrary to Title 18, United States Code, Section 1343.
In violation of Title 18, United States Code, Section 1349.
COUNT 11 (Conspiracy to Commit Wire Fraud – Credit Card Scheme)
91. The allegations contained in Paragraphs 48 through 53 of
Count 1 of this Indictment are re-alleged and incorporated as
though set forth in full herein.
From on or about February 18, 2007 through in or about May 2007, in the District of New Jersey, and elsewhere, the defendants
ANDREW MEROLA,also known as "Andrew Knapik,"and INDIA FUGATE did knowingly and willfully conspire with each other and others, known and unknown to the Grand Jury, to devise, cause to devise, and intend to devise a scheme and artifice to defraud, and to obtain money and property by means of false and fraudulent pretenses, representations, and promises, as set forth above in paragraphs 48 through 53 of Count 1.
For the purpose of executing and attempting to execute such scheme and artifice to defraud, defendants ANDREW MEROLA, also known as "Andrew Knapik," and INDIA FUGATE, knowingly and willfully transmitted and caused to be transmitted by means of wire communication in interstate commerce, writings, signs, signals, and sounds, that is, a series of letters and numbers consisting of customer identification information, contrary to Title 18, United States Code, Section 1343,
COUNT 12 (Conspiracy to Demand and Receive Unlawful Labor Payments)
94. Paragraphs 19 through 26 of Count 1 of this Indictment are re-alleged and incorporated as set forth in full herein.
BMW of Morristown Construction Project
95. Beginning as early as November 2006, Barone Construction received a contract to perform demolition/ construction work at the construction project at the BMW of Morristown car dealership, located on Ridgedale Avenue in Morristown, New Jersey (hereinafter "BMW Project"). Barone Construction was subject to a CBA with Local 825 and therefore was required to use and employ Local 825 members at the BMW Project to operate heavy equipment, such as bulldozers, front end loaders, excavators, rollers, crushers, and backhoes, among other types of heavy construction equipment.
96. From on or about January 17, 2007 through in or around
March 2007, in the District of New Jersey and elsewhere,
ANDREW MEROLA,also known as "Andrew Knapik,MARTIN TACCETTA,JONATHAN LANZA,PAUL LANZA,and JOHN CATALDO
being a Local 825 Organizer and employee, did knowingly and
willfully conspire and agree with each other and others to request, demand, receive, and accept for defendant JOHN CATALDO, the payment, loan, and delivery of money and things of value, namely, United States currency, in an amount in excess of $1,000, from an employer, and from individuals acting in the interest of that employer, namely, Barone Construction, whose employees were employed in an industry affecting commerce, namely, the construction industry, and whose employees such labor organization, to wit: Local 825, represented, sought to represent, and would have admitted to membership, contrary to Title 29, United States Code, Sections 186(a)(2), (b)(1), and (d)(2).
Object of the Conspiracy
97. It was an object of the conspiracy that defendants JONATHAN LANZA and PAUL LANZA would pay defendants JOHN CATALDO, ANDREW MEROLA and MARTIN TACCETTA approximately $20,000 in bribes to permit defendants JONATHAN LANZA and PAUL LANZA to circumvent and ignore the requirements of the CBA that Barone Construction was subject to with Local 825 by hiring non-union labor, thereby, permitting Barone Construction to save substantial amounts by not paying union salaries and benefits.
Manner and Means of the Conspiracy
98. It was part of the conspiracy that defendant ANDREW MEROLA informed defendant JONATHAN LANZA, who represented Barone Construction, that he had to pay defendant JOHN CATALDO $20,000 in order for defendant JOHN CATALDO to ignore and not enforce the
provisions of the CBA, namely, the hiring of Local 825 operating engineer members to work at the BMW Project.
99. It was further part of the conspiracy that by not enforcing the provisions of the CBA, defendants JONATHAN LANZA and PAUL LANZA would avoid the obligation of paying union regulated salaries and benefits.
Overt Acts
100. In furtherance of the conspiracy and in order to effect the object thereof, defendants ANDREW MEROLA, MARTIN TACCETTA, JOHN CATALDO, JONATHAN LANZA and PAUL LANZA committed and caused to be committed the following overt acts, among others, in the District of New Jersey and elsewhere:
On or about January 17, 2007, defendant JOHN CATALDO went to the BMW Project and spoke with defendant JONATHAN LANZA about why there were no union members on the BMW Project.
On or about January 17, 2007, defendants JONATHAN LANZA and PAUL LANZA traveled to the Quick Check on Main Street in Madison, New Jersey in order to meet defendant ANDREW MEROLA.
On or about January 18, 2007, defendant MARTIN TACCETTA had a conversation with defendant ANDREW MEROLA in MEROLA's vehicle during which they discussed Barone Construction's union problems and the need for defendant JONATHAN LANZA to pay defendant JOHN CATALDO.
On or about January 22, 2007, defendant JONATHAN LANZA called defendant ANDREW MEROLA and advised MEROLA that he had spoken with defendant JOHN CATALDO and they worked everything out.
All in violation of Title 18, United States Code, Section
COUNT 13 (Demanding and Receiving Unlawful Labor Payments)
Paragraphs 19 through 26 of Count 1, and Paragraphs 95, 98 and 99 of Count 12, are re-alleged and incorporated as set forth in full herein.
From on or about January 17, 2007 through in or around March 2007, in the District of New Jersey and elsewhere, defendants
ANDREW MEROLA, also known as "Andrew Knapik," MARTIN TACCETTA, PAUL LANZA, JONATHAN LANZA and JOHN CATALDO
being a Local 825 Organizer and employee, knowingly and willfully requested, demanded, received, and accepted, and agreed to receive and accept, and caused to be requested, demanded, received, and accepted for defendant JOHN CATALDO, the payment, loan, and delivery of money and things of value, namely, United States
currency, in an amount in excess of $1,000, from an employer, and from individuals acting in the interest of that employer, namely, Barone Construction, whose employees were employed in an industry
affecting commerce, namely, the construction industry, and whose employees such labor organization, to wit: Local 825 represented, sought to represent, and would have admitted to membership.
In violation of Title 29, United States Code, Sections 186(a)(2), (b)(1), and (d)(2) and Title 18, United States Code, Section 2.
COUNT 14 (Conspiracy to Embezzle from Local 825 Benefit Funds)
Paragraphs 19 through 26 of Count 1 of this Indictment and Paragraph 95 of Count 12 are re-alleged and incorporated as though set forth in full herein.
From in or around November 2006, through in or around November 2007, in the District of New Jersey and elsewhere, defendants
JONATHAN LANZA and PAUL LANZA
did knowingly and willfully conspire and agree with each other and others to embezzle, steal and unlawfully convert to their own use and the use of others, moneys, funds, premiums, credits, property and other assets of the Local 825 Benefit Funds, and of a fund connected with such employee benefit plans, totaling in excess of $43,418.00, contrary to Title 18, United States Code, Section 664.
Manner and Means
It was part of the conspiracy that between November 2006 and November 2007, Barone Construction would employ multiple non-union workers at a construction project at the BMW of Morristown Dealership and not contribute to the Local 825 Benefit Funds as required by the collective bargaining agreement.
It was further part of the conspiracy that Barone Construction would camouflage the payment of wages to its nonunion workers by directing some of those non-union workers to
submit false invoices for services rendered as independent contractors.
107. It was further part of the conspiracy that Barone Construction would fail to report to the Local 825 Benefit Funds the names, number of hours worked, and the amount of contributions owed on behalf of each employee entitled to have contributions made on his or her behalf to the Benefit Funds in accordance with Barone Construction's labor contract with Local 825.
108. In furtherance of the conspiracy and in order to effect the object thereof, defendants JONATHAN LANZA and PAUL LANZA committed and caused to be committed the following overt acts, among others, in the District of New Jersey and elsewhere:
a. On or about January 25, 2007, PAUL LANZA and JONATHAN LANZA caused a check in the amount of $1,090.46 to be written to
A.H.
for working as a non-union operating engineer.
On or about February 2, 2007, in payment for V.T.'s work as a non-union operating engineer, PAUL LANZA and JONATHAN LANZA caused a check in the amount of $3,985 to be written from Barone Construction to V.T.'s landscaping company in payment for alleged "truck rental" services.
On or about March 1, 2007, PAUL LANZA and JONATHAN LANZA caused a check in the amount of $783.74 to be written from
Barone Construction to E.B. for working as a non-union operating engineer.
COUNTS 15 – 19 (Embezzlement from Local 825 Benefit Funds)
Paragraphs 19 through 26 of Count 1, Paragraph 95 of Count 12, and Paragraphs 105 through 107 of Count 14 of this Indictment are re-alleged and incorporated as though set forth in full herein.
In or about the dates set forth below, in Morris County, in the District of New Jersey and elsewhere, the defendants
knowingly and willfully embezzled, stole and unlawfully converted to their own use and the use of others, moneys, funds, premiums, credits, property, and other assets of the Local 825 Benefit Funds, and of a fund connected with such employee benefit plans, that is, employer contributions due and owing from Barone Construction to the Local 825 Benefit Funds with respect to the following non-union employees working at the BMW of Morristown Dealership: Count Dates Non-Union Employee Amt. Embezzled
15 12/06-2/07 V.T. $ 5,508.00 16 02/07-11/07 E.B. $20,519.00 17 01/07-02/07 A.H. $ 4,318.00 18 12/06 S.P. Sr. $ 2,720.00 19 11/06-05/07 S.P. Jr. $10,353.00
COUNT 20 (Hobbs Act Extortion Conspiracy – Lunch Truck Vendors)
111. From at least as early as January 2006 through in or about February 2007, in the District of New Jersey and elsewhere, the defendants
ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, and JOSEPH MANZELLA
did knowingly and willfully conspire with each other and with others to obstruct, delay and affect interstate commerce and the movement of an article and commodity in commerce by extortion, in that the defendants and others agreed to obtain property, to wit: cash and check payments from Lunch Truck Vendors, in connection with permitting the Lunch Truck Vendors to park their lunch trucks at various desirable construction work sites, with the consent of the Lunch Truck Vendors, such consent being induced by the wrongful use of fear, including the fear of economic harm. In violation of Title 18, United States Code, Section 1951.
COUNT 21 (Hobbs Act Extortion Attempt – A.V.)
112. From at least as early as December 2006 through in or
about February 2007, in the District of New Jersey and elsewhere,
did knowingly and willfully attempt to obstruct, delay and affect interstate commerce and the movement of an article and commodity in commerce by extortion, in that the defendants and others attempted to obtain property, to wit: cash and check payments from A.V., whose identity is known to the Grand Jury, in connection with permitting A.V. to park his lunch truck at desirable construction work sites, with the consent of A.V., such consent being induced by the wrongful use of fear, including the fear of economic harm.
In violation of Title 18, United States Code, Sections 1951 and 2.
COUNT 22 (Conspiracy to Demand and Receive Unlawful Labor Payments Par Wrecking Corporation)
Paragraphs 14 through 18, 22 and 23 of Count 1 are re-alleged and incorporated as though set forth in full herein.
From in or around the Fall of 2006 through in or around December 2006, in the District of New Jersey and elsewhere, defendants
did knowingly and willfully conspire and agree with each other and others to request, demand, receive, and accept for defendants RALPH CICALESE and JOSEPH MANZELLA, the payment, loan, and delivery of money and things of value, namely, United States currency, in an amount in excess of $1,000, from an employer, and from individuals acting in the interest of that employer, namely, Par Wrecking Corporation, whose employees were employed in an industry affecting commerce, namely, the construction industry, and whose employees such labor organization, to wit: Local 1153, represented, sought to represent, and would have admitted to membership, contrary to Title 29, United States Code, Sections 186(a)(1) and (2), (b)(1), and (d)(2).
115. It was an object of the conspiracy that defendants ANDREW MEROLA, RALPH CICALESE, a Job Steward and employee at the Prudential Building parking garage demolition project, and JOSEPH MANZELLA, a Business Agent and employee of Local 1153, would demand and receive bribe payments, in an amount in excess of $35,000, to permit Par Wrecking to circumvent and ignore the requirements of the CBA to which Par Wrecking was subject to with Local 1153 by not hiring the required number of Local 1153 union members, thereby avoiding the payment of union salaries and benefits.
116. In furtherance of the conspiracy and in order to effect the object thereof, defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, and JOSEPH MANZELLA committed and caused to be committed the following overt acts, among others, in the District of New Jersey and elsewhere:
On or about November 6, 2006, defendants ANDREW MEROLA, RALPH CICALESE, and JOSEPH MANZELLA caused a payroll check to be written by Par Wrecking to an individual named "Ryszard Nalepa," for $5,000, which check was then cashed and the money given to defendant CICALESE.
On or about November 6, 2006, defendants ANDREW MEROLA, RALPH CICALESE, and JOSEPH MANZELLA caused a payroll check to be
written by Par Wrecking to an individual named "Ryszard Nalepa," for $5,000, which check was then cashed and the money given to defendant CICALESE.
On or about November 17, 2006, defendants ANDREW MEROLA, RALPH CICALESE, and JOSEPH MANZELLA caused a payroll check to be written by Par Wrecking to an individual named "Ryszard Nalepa," for $5,100, which check was then cashed and the money given to defendant CICALESE.
On or about December 1, 2006, defendants ANDREW MEROLA, RALPH CICALESE, and JOSEPH MANZELLA caused a payroll check to be written by Par Wrecking to an individual named "Ryszard Nalepa," for $5,100, which check was then cashed and the money given to defendant CICALESE.
On or about December 15, 2006, defendants ANDREW MEROLA, RALPH CICALESE, and JOSEPH MANZELLA caused a payroll check to be written by Par Wrecking to an individual named "Ryszard Nalepa," for $6,125 which check was then cashed and the money given to defendant CICALESE.
COUNT 23 (Demanding and Receiving Unlawful Labor Payments – Par Wrecking Corporation)
Paragraphs 14 through 18, 22 and 23 of Count 1, and Paragraph 115 of Count 22 are re-alleged and incorporated as though set forth in full herein.
knowingly and willfully requested, demanded, received, and accepted for defendants RALPH CICALESE and JOSEPH MANZELLA, the payment, loan, and delivery of money and things of value, namely, United States currency, in an amount in excess of $1,000 from employers, and from individuals acting in the interest of an employer, namely, Par Wrecking Corporation, whose employees were employed in an industry affecting commerce, namely, the construction industry, and whose employees such labor organization, to wit: Local 1153, represented, sought to represent, and would have admitted to membership. In violation of Title 29, United States Code, Sections 186(a)(2), (b)(1), and (d)(2), and Title 18, United States Code, Section 2.
COUNT 24 (Conspiracy to Embezzle Union Assets LIUNA Membership Cards/Books)
Paragraphs 14 through 18, 22 and 23 of Count 1 of this Indictment are re-alleged and incorporated as though set forth in full herein.
From in or around January 2006 through in or around February 2007, in the District of New Jersey and elsewhere, defendants
ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, MICHAEL URGOLA,
and JOSEPH MANZELLA knowingly and willfully conspired and agreed with each other and others to embezzle, steal and unlawfully and willfully abstract and convert to their own use the moneys, funds, securities, property, and other assets of Local 1153, to wit: application documents and membership cards pertaining to individuals proposed for membership in Local 1153 and the LIUNA, contrary to Title 29, United States Code, Section 501(c).
121. It was an object of the conspiracy that defendants MICHAEL URGOLA, Business Manager of Local 1153, and JOSEPH MANZELLA, Recording Secretary and Business Agent of Local 1153, would use their positions as officers and persons employed by Local 1153 to provide friends and associates of defendants ANDREW
MEROLA and RALPH CICALESE with union books as LIUNA journeyworker members when they did not have the required training and experience to receive this benefit.
122. In furtherance of the conspiracy and in order to effect the object thereof, defendants ANDREW MEROLA, RALPH CICALESE, MICHAEL URGOLA, and JOSEPH MANZELLA committed and caused to be committed, among others, the following overt acts in the District of New Jersey and elsewhere:
a. In or around January 2006, defendant RALPH CICALESE took
to meet defendant MICHAEL URGOLA at the union hall at which time they discussed defendant URGOLA getting M.D. a union book.
On or about February 21, 2007, defendant ANDREW MEROLA had a telephone conversation with Kyle Ragusa during which they discussed Ragusa going to see defendant MICHAEL URGOLA about a union book.
On or about April 2, 2007, defendant JOSEPH MANZELLA had a telephone conversation with Kyle Ragusa about picking up his union book.
COUNTS 25-26
(Embezzlement of Union Assets – Local 1153 Membership Cards/Books)
Paragraphs 14 through 18, 22 and 23 of Count 1 and Paragraph 121 of Count 24 of this Indictment are re-alleged and incorporated as though set forth in full herein.
On or about the dates set forth below, in the District of New Jersey and elsewhere, the defendants named below, together with others, knowingly and willfully embezzled, stole and unlawfully and willfully abstracted and converted to their own use the moneys, funds, securities, property, and other assets of Local 1153, to wit: the application documents and membership cards pertaining to the following individuals proposed for membership in Local 1153:
Count Individual Approx. Date Defendant(s)
25 M.D. 04/06 MICHAEL URGOLA ANDREW MEROLA
26 K.R. 02/07 MICHAEL URGOLA JOSEPH MANZELLA
In violation of Title 29, United States Code, Section 501(c) and Title 18, United States Code, Section 2.
COUNT 27 (Conspiracy to Commit Wire Fraud Theft of Honest Services – Out of Work List)
Paragraphs 14 through 18, 22 through 23, and 65 of Count 1 of this Indictment are re-alleged and incorporated as though set forth in full herein.
From in or about January 2006 through in or about November 2007, in the District of New Jersey, and elsewhere, the defendants
ANDREW MEROLA,also known as "Andrew Knapik,"RALPH CICALESE,MICHAEL URGOLA,
and JOSEPH MANZELLA did knowingly and willfully conspire with each other and others, to devise, cause to devise, and intend to devise a scheme and artifice to defraud (1) Local 1153 of its property, that is, application documents pertaining to individuals proposed for membership in LIUNA and membership cards issued to persons not entitled to journeyworker membership in the LIUNA; (2) Local 1153 members of their property, that is, money paid as wages and employee benefits that such Local 1153 union members would have obtained but for the defendant's scheme and artifice to defraud; and (3) the intangible right of Local 1153 and its members to the honest services which defendant RALPH CICALESE and Local 1153 officers and employees MICHAEL URGOLA and JOSEPH MANZELLA owed to Local 1153 and its members pursuant to Section 501(a) of the
LMRDA, the LIUNA Uniform Constitutions, the LIUNA Ethical Practices Code, and the LIUNA Job Referral Rules.
127. For the purpose of executing and attempting to execute such scheme and artifice to defraud, defendants ANDREW MEROLA, also known as "Andrew Knapik," RALPH CICALESE, MICHAEL URGOLA, and JOSEPH MANZELLA, knowingly and willfully transmitted and caused to be transmitted by means of wire communication in interstate commerce, writings, signs, signals, and sounds, that is, telephone calls, in an effort to improperly obtain employment for friends and associates of defendants MEROLA and CICALESE, contrary to Title 18, United States Code, Sections 1343 and 1346.
COUNT 28 (Conspiracy to Commit Wire Fraud No Show/Low Show Jobs – Kiska Construction)
Paragraphs 21, 27, 28 and 69 through 73 of Count 1 of this Indictment are re-alleged and incorporated as though set forth in full herein.
ANDREW MEROLA,also known as "Andrew Knapik,"CHARLES MUCCIGROSSO,also known as "Buddy Musk,"JOHN CATALDO,and JOSEPH SCHEPISI
did knowingly and willfully conspire and agree with each other, and others, known and unknown to the grand jury, to devise and intend to devise a scheme and artifice to defraud Kiska Construction and to obtain money by means of false and fraudulent pretenses, representations and promises, as set forth in paragraphs 69 through 73 of Count 1 of this Indictment.
130. For the purpose of executing the scheme and artifice, defendants ANDREW MEROLA, also known as "Andrew Knapik," CHARLES MUCCIGROSSO, also known as "Buddy Musk," JOHN CATALDO, and JOSEPH SCHEPISI, did knowingly and willfully transmit and cause to be transmitted by means of wire communication, namely by computer, in interstate commerce from New York to New Jersey, writings,
signals, and sounds, that is, the hours and dates of employment of defendants ANDREW MEROLA and CHARLES MUCCIGROSSO, contrary to Title 18, United States Code, Section 1343.
COUNT 29 (Wire Fraud) (No Show/Low Show Jobs – Kiska Construction)
knowingly and willfully devised and intended to devise a scheme and artifice to defraud Kiska Construction and to obtain money by means of false and fraudulent pretenses, representations and promises, as set forth above in paragraphs 69 through 73 of Count 1 of this Indictment.
133. On or about November 20, 2006, for the purpose of executing the scheme and artifice and attempting to do so, defendants ANDREW MEROLA, also known as "Andrew Knapik," CHARLES MUCCIGROSSO, also known as "Buddy Musk," JOHN CATALDO, and JOSEPH SCHEPISI, did knowingly and willfully transmit and cause to be transmitted by means of wire communication, namely by computer, in interstate commerce from New York to New Jersey, writings, signals, and sounds, that is, the hours and dates of employment of defendants ANDREW MEROLA and CHARLES MUCCIGROSSO.
COUNT 30 (False and Fraudulent Statements)
134. On or about May 21, 2007, in the District of New Jersey, and elsewhere, in a matter within the joint jurisdiction of the Federal Bureau of Investigation within the Department of Justice, and the Office of Inspector General – Department of Labor, both being agencies of the United States, the defendant
JONATHAN LANZA knowingly and willfully made and caused to be made a false, fictitious, and fraudulent material statement and representation, to wit: that Barone Construction did not have a collective bargaining agreement with Local 825, such video statement having been made during the course of an investigation into unlawful labor payments and embezzlement from the Local 825 Benefit Funds.
In violation of Title 18, United States Code, Section 1001(a)(2).
FIRST FORFEITURE ALLEGATION
135. The allegations contained in Counts 1, 2, and 3 of this Indictment are hereby repeated, re-alleged, and incorporated by reference herein as though fully set forth at length for the purpose of alleging forfeiture pursuant to the provisions of Title 18, United States Code, Section 1963. Pursuant to Rule 32.2, Fed.
R. Crim. P., notice is hereby given to the defendants listed in Paragraph 136 below that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Section 1963, in the event of that defendant's conviction under Counts 1, 2, and 3 of this Indictment.
136. As a result of the offenses set forth in Counts 1, 2, and 3, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE
i. have acquired and maintained interests in violation of Title 18, United States Code, Section 1962, which interests are subject to forfeiture to the United States pursuant to Title 18, United States Code, Section 1963(a)(1);
ii. have an interest in, security of, claim against and property and contractual right, affording them a source of influence over the enterprise said defendants have established, operated, controlled, conducted and participated in the conduct of, in violation of Title 18, United States Code, Section 1962, which interests are subject to forfeiture pursuant to Title 18, United States Code, Section 1963(a)(2); and
iii. have property constituting and derived from proceeds obtained, directly, and indirectly, from the aforesaid racketeering activity, in violation of Title 18, United States Code, Section 1962, which property is subject to forfeiture to the United States pursuant to Title 18, United States Code, Section 1963(a)(3).
137. The interests of the defendants subject to forfeiture to the United States pursuant to Title 18, United States Code, Section 1963(a)(1), (a)(2), and (a)(3), includes, but is not limited to, the following assets:
A sum of money equal to at least $750,000, said amount being the total of the interests acquired and the gross proceeds obtained through the violations of Title 18, United States Code, Section 1962;
All that lot and parcel of land, together with its buildings, appurtenances, improvements, fixtures, attachments, and easements, located at 14 Fay Drive, East Hanover, New Jersey, also known as Lot 47 in Block 38.05 on the Township of East Hanover Tax Map, and being the subject of a deed dated October 31, 2002 to Maria Knapik, wife of defendant ANDREW MEROLA, also known as "Andrew Knapik," which deed was recorded with the Morris County Clerk on or about November 20, 2002;
All that lot and parcel of land, together with its buildings, appurtenances, improvements, fixtures, attachments, and easements, located at 710 Phoebe Street, Dover Township, New
Jersey, also known as Lot 11 in Block 724.22 on the Township of Toms River Tax Map, and being the subject of a deed dated October 18, 2005 to "Andrew C. Merola, f/k/a Andrew Knapik," which deed was recorded with the Ocean County Clerk on or about October 31, 2005, and being the subject of a deed dated August 29, 2007 from Andrew C. Merola to Andrew C. Merola and Maria Merola, husband and wife, which deed was recorded with the Ocean County Clerk on or about September 14, 2007.
138. Pursuant to Title 18, United States Code, Section 1963(m), the defendants shall forfeit substitute property up to the value of the property described in the previous paragraphs if that property, as a result of any act or omission by the named defendant:
cannot be located upon the exercise of duediligence;
has been transferred or sold to, or deposited with,a third party;
has been placed beyond the jurisdiction of thecourt;
has been substantially diminished in value; and
has been commingled with other property which cannot be divided without difficulty.
139. The above-named defendants are jointly and severably
liable for the forfeiture allegations above. All pursuant to Title 18, United States Code, Section 1963.
SECOND FORFEITURE ALLEGATION
The allegations contained in Count 4 are hereby repeated, re-alleged, and incorporated by reference herein as though fully set forth at length for the purpose of alleging forfeiture pursuant to the provisions of Title 18, United States Code, Sections 981(a)(1)(C) and Title 28, United States Code, Section 2461(c). Pursuant to Rule 32.2, Fed. R. Crim. P., notice is hereby given to each defendant listed in Paragraph 141 below that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Section 1955, in the event of that defendant's conviction under Count 4 of this Indictment.
From their engagement in the violation alleged in Count 4 of this Indictment, punishable by imprisonment for more than one year, the defendants ANDREW MEROLA, also known as "Andrew Knapik," and RALPH CICALESE shall forfeit to the United States of America, pursuant to Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c) any property, including money, used in violation of the provisions of this section, including but not limited to the following:
A sum of money equal to $480,000 in United States currency, representing the amount of proceeds obtained as a result of the offense, for which the defendants are jointly and severally liable.
All that lot and parcel of land, together with its buildings, appurtenances, improvements, fixtures, attachments, and easements, located at 14 Fay Drive, East Hanover, New Jersey, also known as Lot 47 in Block 38.05 on the Township of East Hanover Tax Map, and being the subject of a deed dated October 31, 2002 to Maria Knapik, wife of defendant ANDREW MEROLA, also known as "Andrew Knapik," which deed was recorded with the Morris County Clerk on or about November 20, 2002.
142. If any of the property described as being subject to forfeiture in Paragraph 141 of the Forfeiture Allegations above, as a result of any act of omission by the named defendant:
(d) has been commingled with other property which cannot be divided without difficulty; the United States of America shall be entitled to forfeiture of substitute property under the provisions of Title 21, United States Code, Section 853(p), as incorporated by Title 28, United
States Code, Section 2461(c). A TRUE BILL
CHRISTOPHER J. CHRISTIE United States Attorney
ANDREW MEROLAANTHONY MARRACARMINE MAIONECHARLES MUCCIGROSSOCHARLES RUSSOCHRISTOPHER DOSCHEREDWARD DEAKERIC MAIONEGENNARO FORTEINDIA FUGATEJOHN CATALDOJOHN TIZIOJONATHAN LANZAJOSEPH MANZELLAJOSEPH SCHEPISIJUSTIN CERRATOKYLE RAGUSAMARTIN TACCETTAMICHAEL URGOLAPAUL LANZARALPH CICALESEVINCENT DEROGATISVINCENT FICHERA
Genovese Family, Larry Dentico
LARRY DENTICO – a member of the ruling panel of the Genovese LCN Family
(jj) On or about August 28, 2003, the Honorable Kenneth A. Marra, United States District Judge for the Southern District of Florida authorized the interception of wire communications of ALBERT FACCHIANO and others.
G. Factual Basis
17. The facts comprising the basis for this affidavit are derived from the following sources:
(a) information provided by confidential sources to Special Agents of the FBI;
(b) testimony at federal racketeering trials involving members and associates of LeNj
(c) physical surveillance conducted by law enforcement officers, including me;
(d) independent investigation by law enforcement officers, including me; and
(e) interceptions of oral communications occurring within the FOUR RESTAURANTS pursuant to previous Court Orders.
18. Unless otherwise noted, whenever I set forth a statement by a confidential source, the source spoke either directly to me or to another law enforcement officer, who thereafter communicated such information to me. Unless otherwise noted, all statements set forth herein that are attributed to confidential sources or other witnesses are stated only in substance and in part. In addition, unless otherwise noted,
BUG001308
information set forth herein concerning physical surveillance is based on my own participation in the surveillance or was communi~ cated to me by other FBI agents or other law enforcement officers who conducted such surveillance. Because this affidavit is being submitted for the limited purpose of securing authorization for the interception of oral communications, I have not included each and every fact that I have learned during this investigation. Rather, I have set forth only those facts that I believe are necessary to establish probable cause for the order sought herein.
II. PROBABLE CAUSE
19. As detailed below and more fully described in the December 31, 2002 Affidavit, the January 31, 2003 Affidavit, the March 3, 2003 Affidavit, the April 2, 2003 Affidavit, the May 16, 2003 Affidavit, and the June 18, 2003 Affidavit (collectively the "prior affidavits"),9 there is probable cause to believe that the SUBJECTS and others as yet unknown are participating in the illegal activities of the racketeering enterprise, and the various racketeering offenses, described in paragraph 6, above. Pursuant to the December 31, 2002 Order, the January 31, 2003 Order, the March 3, 2003 Order, the April 2, 2003, the May 16,
9 The April 2, 2003 and June 18, 2003 Affidavits, as with the other prior affidavits, are fully incorporated herein by reference.
2003 Order, and the June 18, 2003 Order (collectively, the "prior orders"), authorization was received to intercept communications occurring within the FOUR RESTAURANTS –BRUNELLO'S PREMISES, AGOSTINO'S PREMISES, MARIO'S PREMISES, and the MARINA PREMISES. As explained below (and in the prior affidavits), interceptions to date confirm that the SUBJECTS are using the FOUR RESTAURANTS to engage in racketeering activities, including extortionate control of retail and construction businesses, loansharking, and labor bribery. The SUBJECTS have now discovered the FBI's listening devices at two of these locations, and the other two listening devices were removed by the FBI to prevent their likely discovery. However, the TARGET SUBJECTS are continuing to meet at the FOUR RESTAURANTS and other locations that are impractical to specify to discuss the illegal activities of the racketeering enterprise. In addition, ARDITO has brought the ARDITO CELLPHONE to most of these meetings.
20. To date, all of the goals of the prior orders have not yet been achieved. Because of this, as well as the SUBJECTS' discovery of the other listening devices, and the FBI's belief from surveillance, intercepted communications, and source information that ARDITO and the other SUBJECTS continue to discuss their participation in racketeering activities at other locations besides the FOUR RESTAURANTS, this· application seeks authorization to intercept oral communications at locations used
by JOHN "BUSTER" ARDITO that are impractical to specify, through
a listening device placed in the ARDITO CELLPHONE, or other means.
B. The SUBJECTS' Recent Activities Within the FOUR RESTAURANTS
As explained above, the FBI intercepted oral communications occurring variously within the FOUR RESTAURANTS BRUNELLa PREMISES, AGOSTINO'S PREMISES, MARIO'S PREMISES and the MARINA PREMISES pursuant to prior orders. The interceptions from the prior orders, with the exception of the June 18, 2003 Order, are described in the prior affidavits. These interceptions, along with the interceptions described below, demonstrate that there is probable cause to believe that the TARGET SUBJECTS are participating in the illegal activities of the racketeering enterprise, and the various racketeering offenses, described in paragraph 6, above.
Because each of the conversations were quite long, I have not included every pertinent discussion that occurred during the intercepted conversations. The following descriptions of conversations are based upon my participation in the actual monitoring of the conversations, as well as a review by myself and fellow agents of the tapes of intercepted communications, logs completed by the monitoring personnel, draft summaries and partial transcripts of some of the conversations, as well as my conversations with monitoring personnel. Based on my training
and experience and my discussions with other law enforcement officers· involved in this investigation, I have also included interpretations of certain terms, phrases and names in parentheses. Wednesday, June lS. 2003 (The BRUNELLO PREMISES)
23 ..On Wednesday, June 18, 2003, at approximately
12:00 p.m., ARDITO met at the BRUNELLO PREMISES with DORIS. During the conversation, which lasted for approximately one hour and fifty minutes, ARDITO stated that he·would not meet with Vinny (RUSSO) anymore on Friday's because "Vinny owes Manny money." "Manny" had apparently asked ARDITO to talk to RUSSO about paying the money. ARDITO was happy that "Manny" came to him (ARDITO) instead of going to someone else to complain about RUSSO. ARDITO mentioned that "they charge him a dime." ARDITO and DORIS then discussed Joe Nina (who owns a restaurant) and other people, and ARDITO's involvement with Nina. DORIS also mentioned "Macalla (ph.)" and ARDITO responded that he "got 15 years." In part, I believe that ARDITO is discussing his involvement in the collection of a loan made by "Manny" to RUSSO.
24. ARDITO talked extensively about his case (this likely refers to a prior criminal case involving ARDITO). ARDITO mentioned $1,000,000, and how PELUSO and another attorney worked for him on the case. Also during their discussion, ARDITO and DORIS talked about a "Dr. DiMateo" [Robert DiMateo] '. (I am aware
that DiMateo was under investigation by the FBI for his
involvement in submitting false claims to the Social security Administration on behalf of Neil Parrello, brother of Pasqual"e Parrello, a capo in the Genovese Family who is currently
incarcerated on racketeering charges.)
25. PELUSO then arrived. PELUSO said that "Dom"
(DOMINICK CIRILLO the former acting boss of the Genovese LCN Family) said that "if that's what he wants to do," that's what 1'11 do. 1I The others at the table wanted PELUSO to explain "it" to everybody. PELUSO responded, "Who's everybody?" PELUSO also said that "hell is probably talking about "Larry" (DENTICO, believed to be a member of the ruling panel controlling the Genovese LCN Family). PELUSO later stated that he was going to "see someone,ll and mentioned breaking someone's legs, that the "guy made us look bad." ARDITO said that he warned "him" that if "you don't bring the money, you are not going to get that machine back./I ARDITO also mentioned going to DiMateo. In this portion of the conversation, in part, ARDITO, PELUSO and the other SUBJECTS are discussing messages received from CIRILLO and DENTICO relating to ARDITO's attempt to control the Genovese LCN Family's interests in Connecticut.
26. Later in the conversation, the participants talked about Neil and Patsy (Parrello, brothers who were both charged in racketeering indictments filed in this District, along with other
members and associates of the Genovese LCN Family). At another point, they discussed "Salerno" (possibly Fat Tony Salerno, the former boss of the Genovese LCN Family) and Frank Costello. ARDITO said that "Frank" is "dead."
Thursday, June 19, 2003 (MARIO'S PREMISES>
27. On Thursday, June 19, 2003, at approximately 12:07 p.m., ARDITO and PELUSO met at MARIO'S PREMISES. During the conversation, which lasted for approximately two hours, PELUSO mentions "Joey C.", and ARDITO stated that he was "getting 10%" shaking everyone down. ARDITO mentioned "Scooter" (ANTHONY GUIDO) and PELUSO mentioned a "Stevie" and a "Joey Blue Eyes," as well as another "kid." PELUSO stated that "they killed him." After they "killed," they gave information. ARDITO and PELUSO were talking softly at this point in the conversation, discussing how "they" killed her husband. DORIS, who had since arrived, mentioned T.J. Gelardo (a soldier in the Luchese LCN Family) being on a doctor's payroll (a possible no-show job). ARDITO also brought up "Dr. DiMateo," and that it had just "slipped his mind" for a minute. They discussed how Gelardo was on the doctor's payroll, and ARDITO thought that it was a "shylock loan" which a doctor had given to Gelardo to pay Gelardo back and to write off the loan. (In June 2003, Dr. Jude Barbera was convicted in this District of various tax and fraud charges that involved his relationship with Gelardo; ARDITO and PELUSO are
discussing how Gelardo was apparently employed by Barbera to pay
back an extortionate loan that he received from Gelardo) .
28. ARDITO, PELUSO, and DORIS then spoke of visiting prisons. PELUSO stated that where "Bobby" (Manna, a made member of the Genovese Family whom agents believe is a high-ranking soldier serving a prison sentence) is, there is no visiting on Wednesday. PELUSO said that next Wednesday, he and John Mitchell
(lawyer for ERNEST MUSCARELLA) were going to go and visit Manna. PELUSO mentioned that "Ernie" (MUSCARELLA, a capo in the Genovese LCN Family who is on the administration panel that is now running the Genovese Family, and who recently pleaded guilty in two separate racketeering cases filed in the Eastern District of New York and in this District) and "Quiet Dom" (DOMINICK CIRILLO)
"were consulted on this." MUSCARELLA reportedly stated that "he"
(Manna) knows "where the money is." DORIS stated that "this is the innocent guy." Again, in this conversation, ARDITO, PELUSO and DORIS discussed a visit by PELUSO and another attorney to Bobby Manna, who is in prison, to discuss an issue with him. MUSCARELLA and CIRILLO had been consulted.
29. Towards the end of the conversation, ARDITO spoke on the ARDITO CELLPHONE with someone (possibly "Joey"), and with the owner of MARIO'S as well. The owner said "135,000 plus what he gave Vito (DiSalvo, a soldier in the Genovese LeN Family) .If Based on my knowledge of the investigation, I believe that this
is referring to the fact that PALADINO received a loan from a
friend of the owner of MARIO'S named "Joe" LNU. Vito DiSalvo, as the "godfather" of the loan, received approximately $10,000 of the loan proceeds. ARDITO said that PALADINO told ARDITO that
PALADINO had also paid back "Vito's money." ARDITO stated that he would make an appointment with "him and PALADINO" face to
face. The owner said that he did not think that "Joe" is lying. ARDITO said that "they robbed a lot of people" and that there are two Paladinos, and that one would get blamed for what the other would do. AEDITO also said that to give $250,000 "you're crazy"
(referring to a loan). ARDITO also said that "Patsy" (Genovese
LeN Family capo Patsy Parrello) was "beat" for $250,000. ARDITO
further said that an "Albanian" (possibly ABISH LAJQI) was
involved. ARDITO called "Vito" (DiSalvo) a "nickel and dime
hustler. "
30. ARDITO stated that "Pat" (Parrello) had some money that he wanted to bury (that is, illegitimate money that he wanted to put on the street through loansharking), and they wanted ARDITO involved, but ARDITO said "no." ARDITO also said that he spoke with "Riggi" (Patsy Parrello's wife) and told her not to go to PALADINO for money or she would go to jail
(presumably, because ARDITO believed that PALADINO and DISALVO were cooperating). ARDITO said that he did not want to get involved with "Vito" because ARDITO's name "came up" regarding
money laundering, and because ARDITO "doesn't trust any of them."
30. Also during this conversation, PELUSO mentioned "Louie" (MOSCATIELLO) (a member of the Genovese LCN Family) ,10 and said that someone had lied three times in front of "Ernie's son" (MUSCARELLA's son, possibly Biagio Nicchia, MUSCARELLA's stepson, who has also been charged_with MUSCARELLA and MOSCATIELLO in the Local 14 indictment). PELUSO stated that if "Barney" (Bellomo, believed to be the former acting boss of ·the Genovese LCN Family) was around, "what would have happened"
(implying that if Bellomo had been out of jail, there would have been consequences for the person who lied) . Friday, June 20. 2003 (AGOSTINO'S PREMISES)
31. On Friday, June 20, 2003, at approximately 11:54 a.m., ARDITO and RUSSO met at AGOSTINO'S PREMISES. During the conversation, which lasted for approximately two hours and five minutes, ARDITO and RUSSO discussed the money that RUSSO owes to "Manny." ARDITO told RUSSO that "Manny" came to ARDITO about the money. ARDITO said that he was not taking "Manny's" calls. RUSSO stated that he wanted to "commit himself to him," and RUSSO said he used to give "Manny" $500 a month (presumably as part of a plan to repay the loan to "Manny"). It appears from this
10 MOSCATIELLO was arrested on February 26, 2003, in connection with an indictment charging MOSCATIELLO with racketeering and related charges regarding the Genovese LCN Family's extortionate control of Local 14 of the International Union of Operating Engineers.
interception, as also discussed above that "Manny" went to ARDITO for assistance in collecting on the loan "Manny" made to RUSSO.
32. Later in the conversation, ARDITO said that he would "know today." ARDITO also mentioned an agent (of the FBI) who had come down to visit someone, as well as "Dr. DiMateo"
(Robert DiMateo, who as previously mentioned, is under investigation for filing false paperwork) .
33. The conversation returned to the.money that RUSSO owed to "Manny," and RUSSO acknowledged that he had been paying "Manny" slowly. RUSSO and ARDITO also discussed union laborers and "stamps" (benefit stamps for union employees). RUSSO asked if PELUSO had gone to see "Mario" (MARIO GIGANTE, a soldier in the Genovese LeN Family, and brother of Vincent "the Chin" Gigante, the boss of the Genovese LCN Family) and ARDITO stated that "Ernie" (MUSCARELLA) wanted to get a message. ARDITO referred to a "swap," and RUSSO mentioned "Gambino./I (Apparently, RUSSO, who is currently associated with the Gambino LeN Family, wants to leave the Gambino Family and become associated with ARDITO and the Genovese LeN Family through a personnel swap). ARDITO also stated that he had to speak to Tony Migano (ph.)
(believed to be Anthony Megale, a Gambino LCN Family capo) . ARDITO also described speaking "to the big guy" and referred to "Ernie" and what "Ernie" wants (MUSCARELLA). ARDITO also spoke about "wrapping the whole thing up" and how they had been
described as "has-beens." I believe this to be a reference to the continuing dispute within the Genovese LCN Family between ARDITO over the Family's interests in the Connecticut.
34. Later in the conversation, PELUSO arrived. PELUSO stated that he was going to see "Barry" (Manna) the following week. PELUSO also said that his sister (Manna's sister) had called. PELUSO also said that "that guy" was delivering a "bad message" (possibly referring to a message from MUSCARELLA) . ARDITO described what MUSCARELLA said through "Blaise" (Biagio Nicchia, MUSCARELLA's stepson). PELUSO said that he and "Blaise" had been together, and there was no communication and that "he is not getting the right message." PELUSO mentioned "Quiet Dom"
(DOMINICK CIRILLO, the former acting boss of the Genovese LCN Family). PELUSO related his conversation with MUSCARELLA. ARDITO responded that he "doesn't understand Quiet Dom." PELUSO replied that "he and Larry" (DENTICO) were always close. PELUSO said that he wanted to tell "he [CIRILLO] and Larry [DENTICO] this is what he wants, what can I do." Again, this is believed to refer to communications from MUSCARELLA and others that pertain to the ongoing dispute regarding the Genovese LCN Family's interests in Connecticut. PELUSO is apparently complaining that Nicchia is giving ARDITO an incorrect message from MUSCARELLA, and PELUSO related what he believes MUSCARELLA really said since PELUSO was also at the meeting. PELUSO is also
complaining about problems with the avenues of communication between the leaders of the Genovese Family, many of whom havebeen indicted and have limited contact with other members of the Family, and those who carry the messages on their behalf, such as Nicchia and PELUSO.
At another point in the conversation, ARDITO stated that "he" (MUSCARELLA) knows that there "is a rat among us." ARDITO believed that the rat is with "Scop" (Pasquale Deluca, a member of the Genovese LCN Family with interests in Connecticut). PELUSO stated that \'we got to get proof to point" the finger (referring to the "rat" or cooperating witness) . PELUSO also stated that this person "ratted" on good guys.
Towards the end of the conversation, PELUSO spoke about going to "Barney" (Bellomo) for help. ARDITO said that "he needs two good guys," presumably for his crew. PELUSO said that "Sallie" (SALVATORE LARCA) is a good guy, and asked about "Hippy"
(MICHAEL "HIPPY" ZANFARDINO). Later, ARDITO mentioned "Vinny Ocean" (a former high-ranking member of the Decavalcante LCN Family and a current cooperating witness) . PELUSO and ARDITO further discussed whether there was a "boss of bosses." ARDITO mentioned "Joe Bonnano." Saturday, June 21, 2003 (the AGOSTINO'S PREMISES)
37. On Saturday, June 21, 2003, at approximately 12:45 p.m., ARDITO and KATHY IVELLI (believed to be ARDITO's
girlfriend, who is frequently present for discussions involving organized crime) met at the AGOSTINO'S PREMISES. PELUSO later arrived. The conversation continued for over three hours. ARDITO told IVELLI that agents from the FBI had visited "Tomas" and had asked him how-much he paid to "Riggi," Patsy Parrello's wife. ARDITO also stated that "Tomas" (TOMAS TERRACIANO) had been asked whether "you and 'Duke' [SONNY MARKS1 cashed checks for doctors." Later, ARDITO stated that there was going to be another "pinch" (series of arrests), and noted that agents had
asked if ARDITO had taken over for "Patsy" (Parrello).
38. At a later point in the conversation, the parties discussed a check cashing place and Roger Bombace (an associate of the Genovese LeN Family who recently pleaded guilty to racketeering charges in this District). ARDITO indicated that he had thrown Bombace out of Patsy's Riggoletto restaurant
(Parrello's restaurant). They also discussed bugs at a table in Patsy's Riggoletto. ARDITO speculated that "Roger" (Bombace, whom they believe is cooperating with the Government) had told the Government that ARDITO had taken over for "Patsy" (Parrella). PELUSO and ARDITO described how "Tomas" (TERRACIANO) and "Duke"
(MARKS) get percentages from the check cashing scheme. ARDITO later noted that "Tomas and Duke are shitting in their pants" (presumably because of their concern that Bombace is cooperating, and would reveal the existence of their check cashing scheme).
They continued to speculate during the conversation; at one point, PELUSO stated that "Roger" (Bombace) must have "opened his hands" and must have said that "Tomas" (TERRACIANO) was "Patsy's"
(Parrello's) partner. ARDITO was apparently speculating as to whether "Tomas" cashed checks himself, and PELUSO said that if "Tomas" had sent "Roger" to cash checks, then the "Feds know."
39. Still later in the conversation, PELUSO stated that "Ernie" (MUSCARELLA) had said that he needed to send two more notes and that this is the "chance he has to take." PELUSO also said that "Ernie" (MUSCARELLA) and "Louie" (MOSCATIELLO) send the problems to "Larry" (DENTICO). ARDITO said that "Larry's" time will come. PELUSO said that they must be saying that they "misunderstood the message" (from MUSCARELLA). PELUSO also speculated that "Larry" (DENTICO) must have thought MUSCARELLA was "going to do 15 years" (on his two pending cases). At a further point in the conversation, ARDITO told PELUSO that he had sent a message back to "Ernie" (MUSCARELLA). PELUSO then" recounted a conversation with other high-ranking members of the Genovese LCN Family. PELUSO said that "Louie" (MOSCATIELLO) had said that it's 99% certain. "Ernie" (MUSCARELLA) had said that "He's a captain and he's not being taken down." MOSCATIELLO, in turn, had said that "he" (MUSCARELLA) is going to have a tough time telling "Larry" (DENTICO). According to PELUSO, "Ernie"
(MUSCARELLA) replied, "Who the hell is Larry?" PELUSO then told
I •
"Ernie" (MUSCARELLA) that "Scop" Deluca was lucky. MUSCARELLA replied, "he's just acting, he's not made yet." PELUSO also said that he (MUSCARELLA) would be better off making "Artie" (believed to be ARTHUR NIGRO, a Genovese LCN Family soldier) a captain {Capo}. This is believed~to refer to the ongoing dispute involving ARDITO pertaining to the Genovese LCN Family's interests in Connecticut.
40. PELUSO and ARDITO also discussed "bookmakers" who were "splitting with a restaurant. ARDITO mentioned that "Ernie"
(MUSCARELLA) was going to a meeting when he got "pinched."
ARDITO also mentioned "Fritzy" (Giovannelli, a capo in the
Genovese LCN Family who is under indictment in this District for
racketeering charges including obstruction of justice). PELUSO
and ARDITO returned again to discussing "Tomas" (TERRACIANO) and
""Duke" (MARKS). They discussed how the FBI had purportedly visited "Tomasll again and how "Duke" was upset. ARDITO said that there was going to be another "pinch" (series of arrests by law enforcement). PELUSO told ARDITO that he had told "Tomas" that "if you lie, it's a crime, so it's better to say nothin'." PELUSO also speculated that "Roger" (Bombace) could have said that ARDITO was "Patsy's boss." PELUSO stated that the FBI will "lean on Duke" because the FBI can break him (that is, PELUSO is expressing his belief that the FBI will be able to pressure MARKS into cooperating with its investigation).
Monday, June 23·, 2003 (the BRUNELLa PREMISES>
41. On Monday, June 23, 2003, at approximately 11:56 a.m., ARDITO, DORIS, and JOHN PISTONE ("the Plumber") met at the BRUNELLO PREMISES and spoke for over two hours. During the conversation, ARDITO advised DORIS that agents of the FBI had visited "Tomas" (TERRACIANO) at his house. ARDITO said that the agents had told "Tomas" that ARDITO had taken over for "Pat"
(Parrella), and discussed the doctors upstairs from Rigoletto's and "Duke" (SONNY MARKS). ARDITO stated that "the check cashing guy, Dominick (Colosuono)" had told the truth. ARDITO speculated that it was Roger (Bombace) who had told the FBI about this (that
is, revealed the existence of the check cashing scheme in which TERRACIANO and MARKS were involved). DORIS reminded ARDITO that ARDITO had warned the doctors to pay the taxes on the money. They also discussed whether Rigoletto's was "wired" with a listening device. ARDITO mentioned that he was "taking care of
Pat's business." ARDITO also stated that "Tomas" was in fact
involved in a check cashing "scam." ARDITO said that "Tomas" was
"sneaking a piece of that"·and that "Tommy" (Franco) and "Nicky"
(Devito) were also involved. ARDITO thought that they might "get another pinch" (get arrested for that) .
42. DORIS then asked about the "stuff" (cases· of wine) that were down in the basement. ARDITO said that the agents did not ask about that. (This is an apparent reference to wine
provided to Gino Ottomanelli, a cooperating witness, who in turn
provided it to Patsy Parrello and later "Tomas," which ARDITO and "Tomas" believe was stolen property). DORIS mentioned tax evasion
"unless the doctors say that they were being pressured to pay 15 percent eu/i)." DORIS stated that "Tomas" was the "weakest link," meaning the individual most likely to cooperate with the FBI's investigation.
ARDITO then mentioned that PELUSO had gone to see "Bobby Manna" (a high-ranking member in the Genovese LeN Family) in the "pen" (prison). ARDITO also stated that "they know all about Buster taking care of it. They know all about that. CUI) I'm gonna go" (referring to his belief that he was going to be arrested shortly).
The participants then discussed money owed by PALADINO to Joe LNU (the same individual on the phone with ARDITO and the owner of Mario's the prior week). ARDITO reported that PALADINO said that he only owed the "guy" a few dollars. ARDITO said that PALADINO "even paid him for the godfather" (referring to the payment made to Vito DiSalvo for arranging the loan). ARDITO said that they were "going to make a shylock out of him."
Later in the conversation, ARDITO said that someone had said to him "I know about you being the boss of Connecticut," but that ARDITO did not "know what the guy was talking about." ARDITO said that he "knocked him off the $200 a
• • • • • '. •
month payroll." ARDITO then told a story about a police
lieutenant's son who recognized "the kid." The son had purportedly disappeared. ARDITO thought that the agents are working on finding the son. ARDITO said that he suspected that
"the stool pigeon and his father were in on this." (This likely relates to ARDITO's belief that the FBI is investigating the disappearance of Steve Aiello, the son of a civilian employee of the NYPD who ran the NYPD's Bureau of Criminal Investigation. Aiello disappeared after he testified as an alibi witness for the defense that resulted in the acquittal of Victor Mirdita, an Albanian who had been charged with murdering the son of Pasquale Parrella in an apparent dispute between members of the Genovese and Gambino LeN Families.)
46. ARDITO also complained that "they've been saying we're has-beens. A couple of them come out, I'll show them what kind of has-beens we are." ARDITO again stated that he thought that "Tomas" would be arrested in three weeks and that "they"
(the Government) had "Roger" (Bombace, meaning that he was cooperating with the FBI). DORIS said that "Roger" was charged with "a gun." Still later, ARDITO noted that "he has an appointment with the judge anytime [he] wants to go eat with him." ARDITO said that he "did Pat a favor once, and the next day he came back for another one." ARDITO again returned to speculating about the next "pinch" and said he thought he was not
on "any tapes." He also described "Durso" (Michael Durso, a cooperating witness) as "a piece of shit compared to the guy from Jersey who cooperated from Sam the Plumber's crew." (Sam "the Plumber" Decavalcante was the boss of the LCN Family that bears his name.) ARDITO described what happened in 1974, when "they opened it up and made everybody."
Thursday, June 26, 2003 (the BRUNELLO PREMISES)
On Thursday, June 26, 2003, at approximately 12:56 p.m., DORIS and PELUSO met at the BRUNELLO PREMISES and spoke for over two hours. ARDITO arrived late. During the conversation, DORIS and PELUSO initially discussed "Tomas" and what he had told the "Feds" regarding "Riggi" –Pasquale Parrello's wife. DORIS mentioned an "audit" and "IRS." PELUSO said that the FBI was "taking pictures." PELUSO stated that ARDITO needed to "put Megale in his place" (Anthony Megale, a Gambino LeN Family capo based in Connecticut). PELUSO also said that "Scop" (Deluca) must have told "him."
The conversation turned to George Barone (a former member of the Genovese LCN Family and current Government cooperating witness) and "flipping." ARDITO also mentioned "Ernie" (MUSCARELLA) and ARDITO sounded upset. ARDITO said that "George" was still in Florida. ARDITO explained his conversation with "Quiet Dom" (CIRILLO), but it was inaudible. ARDITO mentioned "stool pigeons" (cooperating witnesses). PELUSO
mentioned "Vinny Gorgeous" (Basciano, a made member of the
Bonnano LCN Crime Family). Later in their conversation, they discussed "Ernie's" statements and his case.s (MUSCARELLA's two cases, one in this District, and the other in the Eastern District of New York). DORIS discussed his plea. Friday. June 27. 2003 (the AGOSTINO'S PREMISES)
On Friday, June 27, 2003, at approximately 11:55 a.m., ARDITO and PELUSO were intercepted at the AGOSTINO'S PREMISES. The conversation was almost entirely inaudible due to interference from other conversations. Monday, June 30, 2003 (The BRUNELLe PREMISES)
On Monday, June 30, 2003, at approximately 12:00 p.m., ARDITO, PELUSO and DORIS met at the BRUNELLO PREMISES. During the conversation, which lasted for approximately two· hours, PELUSO said that Ralphie Coppola (a soldier in the Genovese LCN Family who is believed to have been killed in the late 1990s) should have had his cousin watching his back
(protecting him). ARDITO also talked about "Roger" (Bombace, who, as described earlier, is an associate of the Genovese LCN Family who recently pleaded guilty to racketeering charges in this District) "turning," (cooperating) and PELUSO responded, "Why else would they go to Tomas (TERRACIANO) ?" In this conversation, ARDITO and PELUSO were discussing their belief that Bombace was cooperating with the Government and providing
incriminating information about Tomas. Other FBI agents did in fact interview Tomas around this time.
Tuesday, July 1, 2003 (the MARINA PREMISES)
51. On Tuesday, July I, 2003, at approximately 12;02 p.m., ARDITO and DORIS met at the MARINA PREMISES. PELUSO arrived later during the conversation. During the conversation, which lasted for approximately two hours, DORIS said that FBI agents went to see Colosuono (the owner of Prima Check Cashing, headquartered in Westchester, New York) at least three times. Later, PELUSO said, "We asked him about other check cashing places." DORIS mentioned Tomas (TERRACIANO) and Duke (SONNY MARKS). PELUSO then talked about aiding and abetting a conspiracy to defraud an insurance company, and said that "we" don't care how much of a percentage "they" were getting. PELUSO also commented, "Don't you think they know about the Javits Center." In this conversation, among other things, PELUSO was talking again about a health insurance fraud and check cashing scheme involving TERRACIANO, SONNY MARKS and Dominick Colosuono.
Thursday, July 3, 2003 (The MARINA PREMISES>
52. On Thursday, July 3, 2003, at approximately 11:59 a.m., ARDITO and DORIS met at the MARINA PREMISES. PELUSO also joined the meeting and participated in the conversation. During the conversation, which lasted for over. two hours, ARDITO said that "Anthony" (Mangone, Patsy Parrello's lawyer) was still
bringing messages back and forth (from Parrella, who is in
prison, to other members and associates of the Genovese LCN
Family). ARDITO also said that a "pinch" (arrest) was coming
down in the next week, and PELUSO said that they (the FBI) might
be "working finer points." Also during the conversation, PELUSO
mentioned Tomas (TERRACIANO) and "Pat" (Pasquale Parrello, a capo
in the Genovese LCN Family) and then said that if "Roger"
(Bombace) gave them more, they (the Government) can get
TERRACIANO to "flip" (cooperate). PELUSO also commented that
Roger knew about "bookmaking, he made pickups" and he knows about
"the checks." ARDITO responded that Tomas (TERRACIANO) "doesn't
know nothing." ARDITO also said that "the $250,000 thing is not
over with." In· this conversation, the SUBJECTS were again
discussing the types of incriminating information Bombace could
give to the Government if he cooperated.
c. The SUBJECTS' Discovery Of The Listening Devices
53. On or about July 9, 2003, the SUBJECTS discovered
·the listening devices at the AGOSTINO'S PREMISES and the MARINA PREMISES. Specifically, on July 9, 2003, ARDITO met with two unidentified individuals, as well as PALADINO and.others. During the meeting, I overheard ARDITO and the others manipulating the tape that was wrapped around the listening device, which had been installed underneath the table at which the SUBJECTS were meeting .. This indicated to me that they had discovered the
listening device, and that it was no longer underneath the table.
Thereafter, ARDITO and the other SUBJECTS were observed leaving AGOSTINO'S and traveling to the MARINA PREMISES. At the MARINA, after a brief conversation, I overheard a sound that appeared to be someone feeling for a listening device underneath the table. I heard the individual who was conducting the search bump against the listening device, which was also under the table at the MARINA PREMISES. The individual left that device underneath the table, but the SUBJECTS, including ARDITO, left the table.
As a result of the discovery of these two listening devices, agents removed the devices. Agents also removed the listening devices at the BRUNELLO PREMISES and the MARIO'S PREMISES before they could be detected.
Following the discovery of these listening devices, the FBI has learned, from source information and from surveillance, that the SUBJECTS have returned to the restaurants for meetings, but are careful to check for listening devices. For example, several of the SUBJECTS have been observed meeting at several of the FOUR restaurants on the following occasions:
(a) July 16, 2003: ARDITO, DORIS, and PELUSO were observed meeting at the MARINA PREMISES with an unidentified individual at approximately 1:15 p.m. At 2:18 p.m., PELUSO left the PREMISES, and at 2:49 p.m., ARDITO and DORIS left the
PREMISES.
(b) July 22, 2003: At approximately 12:53 p.m., ARDITO and DORIS were observed meeting at the AGOSTINO'S PREMISES.
(c) August 4, 2003: At approximately 11:49 a.m., ARDITO and DORIS were observed meeting at the BRUNELLq PREMISES. PELUSO later arrived before 12:37 p.m., and ARDITO, DORIS, and PELUSO met until 2:45 p.m.
(d) August 20. 2003: At 11:45 a.m., ARDITO arrived at the AGOSTINO'S PREMISES. At approximately 11:50 a.m., a car arrived, and ARDITO met with two unknown males. These two individuals left at approximately 12:26 p.m. Thereafter, at approximately 12:39 p.m., JOHN ALBANESE (believed to be a member of ARDITO's crew who lives in Florida) arrived. PELUSO arrived at approximately 1:36 p.m., and they met until approximately 3:30
D. ARDITO and the Other SUBJECTS Regularly Meet At Locations That Are Impractical To Specify To Further The Goals Of The Racketeering Enterprise
57. As explained in the Prior Affidavits and above,· the TARGET SUBJECTS, including ARDITO, and other members and associates of LCN, regularly meet at the FOUR RESTAURANTS -BRUNELLO PREMISES, AGOSTINO'S PREMISES, the MARIO'S PREMISES, and the MARINA PREMISES to discuss, among other things: (i) the operation and leadership structure of the Genovese LCN Family;
and (ii) criminal activities -such as loansharking, gambling, extortion and control of labor organizations -of the SUBJECTS and other members and associates of the Genovese LCN Family. However, based on physical surveillance that I and other members of the Task Force have conducted, as well as intercepted conversations at the FOUR RESTAURANTS, it is clear that, in addition to these four locations, there is probable cause to believe that ARDITO, the other TARGET SUBJECTS, and other members and associates of LCN as yet unknown have used, and will continue to use, locations that are impractical to specify to conduct their meetings in order to accomplish, to discuss, and to commit the offenses described in Paragraph 3 above. There is also probable cause to believe that during these meetings, ARDITO will have the ARDITO CELLPHONE with him, since he carries the ARDITO CELLPHONE with him at all times.
58. As set forth below, there are locations used by ARDITO, the other SUBJECTS, and other members and associates of LCN, that are impractical to specify to conduct their meetings in order to accomplish, to discuss, and to commit the offenses described in Paragraph 3 above, in addition to the FOUR RESTAURANTS described above. In addition, based on my training and experience conducting organized crime investigations, because the SUBJECTS are now aware of the existence of the listening devices at the AGOSTINO'S PREMISES and the MARINA PREMISES, they
"'. • • • • • • •
will likely become more cautious in conducting their criminal affairs at those restaurants and will likely use other locations to conduct meetings. Indeed, ARDITO uses various and changing
locations to conduct his meetings with the other SUBJECTS and to meet with other members and associates of LCN. Thus, interception of communications at the FOUR RESTAURANTS revealed, and would reveal if such interceptions alone were authorized, only a portion of the pertinent communications occurring among the SUBJECTS during their day-to-day meetings. Authorizing the interception of communications at locations used by ARDITO that are impractical to specify through the listening device placed in the ARDITO CELLPHONE or other means will provide law enforcement with a more complete picture of the SUBJECTS' criminal activities.
59. Communications among the SUBJECTS intercepted at the FOUR RESTAURANTS have confirmed that the SUBJECTS engage in numerous other meetings, and seek to meet at a variety of locations impractical to specify, in an effort to thwart law enforcement. For example:
a. As explained in the May 16, 2003 Affidavit, at a meeting on Monday, January 6, 2003 at the BRUNELLO PREMISES, which was recorded pursuant to the December 31, 2002 Order, the SUBJECTS explicitly discussed the need to meet at other restaurants because of a concern that their conversations at the
BRUNELLO PREMISES were being monitored. This conversation among
the SUBJECTS then turned to finding a place to meet where they would not be subject to electronic surveil"lance by law enforcement. ARDITO said to PELUSO, "Pete, we gotta find a restaurant./I PELUSO suggested "Spoto's" (a restaurant in the Bronx), and ARDITO said, "I don't care about . . . (i/a) . II ARDITO again said, "We gotta find a different place." DORIS said that he can't take the heat (law enforcement) in Agostino's
(Restaurant). PELUSO mentioned a restaurant near a train station. PELUSO also suggested Francesco's on Shore Road in New Rochelle, and ARDITO agreed. Then, referring to the Government's ability to monitor conversations electronically, DORIS said, "two miles away, they (law enforcement) can hear you." ARDITO responded, "No they can hear ya." PELUSO then said, "They put the … (i/a) two miles away, then listen and record." ARDITO responded, "They don't have to put a bug in there./I PELUSO continued, "And they can even have a booster that they can transmit the signal farther." This conversation establishes that the SUBJECTS are conducting meetings at other locations
(specifically restaurants) during which they discuss their criminal activities.
60. In addition to the intercepted communications described above, my belief that there are locations psed by ARDITO to conduct his meetings with the other SUBJECTS and other
members and associates of LCN that are impractical to specify is ~urther supported by my conversations with CS-l. As discussed in paragraph 47 of the December 31, 2002 Affidavit, CS~l is a source who has provided reliable information to the FBI about members and associates of the Genovese LCN Family, including the SUBJECTS. CS-l is aware that the SUBJECTS –ARDITO, PELUSO, DORIS and others –meet regularly at a variety of locations to conduct their meetings. Most recently, CS-l has stated that ARDITO, PELUSO and DORIS have met on several occasions since July 9, 2003 (the date of the discovery of the listening devices) at the La Gr6tta Trattoria in Yonkers, New York, which is near the location where ARDITO's daughter lives.
The fact that ARDITO uses locations that are impractical to specify to conduct his meetings with the other TARGET SUBJECTS and other members and associates of La Cosa Nostra is also corroborated by the physical surveillances conducted by me and other agents.
The summary of physical surveillances listed in this application is not exhaustive; the results of every surveillance have not been included. On the following days, other FBI agents, NYPD detectives, and I have observed the SUBJECTS and other LCN members and associates at the following meetings in a variety of locations:
Ca) July 18. 2002: At approximately 11:33 a.m.,
PELUSO was observed leaving his residence in the Bronx, New York,
and driving to ARDITO's home. ARDITO and PELUSO were observed having a discussion during their trip. They drove to the AGOSTINO'S PREMISES. Following lunch, ARDITO and PELUSO were observed returning to PELUSO's vehicle and having an animated discussion while driving back to the Bronx.
(b) August 12. 2002: At approximately 11:26 a.m., ARDITO was observed meeting with GUIDO. ARDITO, PELUSO and DORIS then drove to Knuckleheads Restaurant, in Pelham Bay, New York. They were observed waiting in the vehicle for several minutes, after which they entered Knuckleheads. They left Knuckleheads a short time later and drove to the AGOSTINO'S PREMISES.
(c) August 13. 2002: At approximately 11:38 a.m., ARDITO and PELUSO were observed meeting with Joe Salcito (a former union representative) and Danny Murphy (a delegate for Local 15 of the International Union of Operating Engineers who has been charged in a racketeering indictment in the Eastern District of New York in connection with the Colombo Family's extortionate control of Local 15) at Arturo's Restaurant in Queens, New York.
(d) August 27. 2002: At approximately 10:45 a.m., GUIDO was surveilled meeting with ARDITO at ARDITO's residence in Queens, New York.
(e) September 9. 2002: At approximately 2:57
p.m., ARDITO, PELUSO, and DORIS left the AGOSTINO'S PREMISES and drove together to Ultimate Auto in Eastchester, New York. At Ultimate Auto, ARDITO and DORIS were observed speaking with Frank Salerno.
(f) September 12, 2002: PELUSO and ARDITO were surveilled leaving the BRUNELLO PREMISES. They drove together to Pasquale's Rigoletto Restaurant and sat at a table in the rear of the restaurant.
(g) September 26, 2002: At approximately 11:16 a.m., PELUSO was observed meeting with Lours MOSCATIELLO at Pelham Bay Brokerage, in the Bronx, New York. They had a "walk and talk" –that is, they left the premises of the Pelham Bay Brokerage and walked around the block while having a conversation. Later on September 26, 2002, at approximately
11:58 a.m., ARDITO and PELUSO met in front of PELUSO's house and drove together to Buona Notte Restaurant, on Mulberry Street, New ·York, New York (the restaurant associated with Genovese capo MATTHEW IANIELLO) .
(h) October 22, 2002: At approximately 11:34 a.m., ARDITO left his residence and picked up PELUSO. They first drove to Mulino's Restaurant, 99 Court Street, White Plains and met with LOUIS GIGANTE (believed to be an associate of the Genovese LCN Family who is the son of MARIO GIGANTE, a soldier in the Genovese LeN Family, and nephew of Vincent Gigante, the Boss
• • • • .' • •
of the Genovese LCN Family who recently pleaded guilty to
criminal charges in the Eastern District of New York). ARDITO and PELUSO went to Pasquale's Rigoletto Restaurant at approximately 4:28 pm. They left the restaurant at approximately
5:05 p.m. At approximately 7:48 p.m., ARDITO and PELUSO met at the McDonald's Restaurant on Philip Avenue and East Tremont Avenue in the Bronx, which is across the street from PELUSO's, residence. ARDITO and PELUSO walked outside until approximately
8:08 p.m., at which time LARRY DENTICO (who is believed to be a member of the ruling panel of the Genovese LCN Family) arrived. DENTICO, ARDITO! and PELUSO met for approximately an hour at a table in the McDonald's, until about 9:08 p.m.
(i) October 28. 2002: At approximately 12:14 p.m." ARDITO met with PELUSO for over an hour at Pasquale's Rigoletto Restaurant. At approximately 1:38 p.m., ARDITO met with LARRY DENTICO at Rino's Restaurant, in the Bronx, New York. After approximately three hours at Rino's, ARDITO and DENTICO exited Rino's and walked to Spoto's Restaurant, where they met PELUSO. They were observed having a conversation on the street until approximately 3:42 p.m.
(j) October 30r 2002: At approximately 2:46 p.m., ARDITO and PELUSO drive to Mulino's Restaurant in White Plains, New York (the restaurant at which they had previously met Louis Gigante). After apparently waiting for someone who did not
arrive, they left.
(k) November 15, 2002: At approximately 11:35 a.m., ARDITO and PELUSO met at the McDonald's across from PELUSO's residence. They met for approximately 25 minutes, until 12:01
p.m. ARDITO then drove to his daughter's home in Yonkers, New ·York, where he met VINNY RUSSO. ARDITO, PELUSO, and RUSSO then met at Franel1a Tratoria Restaurant, in Eastchester, New York. They met there for approximately three hours, from 1:04 p.m. until 3:57 p.m.
(1) December 13, 2002: At approximately 11:47 a.m., PELUSO arrived at the home of ARDITO's daughter, where cars registered to ARDITO and RUSSO were already parked. They met together until approximately 2:30 p.m.
(m) December 16, 2002: At approximately 12:21 p.m., ARDITO, PELUSO, and DORIS met at ARDITO's residence and drove in DORIS' car to the Parkside Restaurant in Queens, New York (the restaurant owned by Genovese capo ANTHONY FEDERICI). They met there until approximately 2:36 p.m. Later that day, PELUSO and ARDITO were observed having a conversation in PELUSO's vehicle as they traveled to a meeting with an unidentified individual at the Louis Seafood Restaurant, in the Bronx, New York.
(n) December 19, 2002: At approximately 2:58 p.m., ARDITO met with an unidentified male until 4:10 p.m. at Pasquale's Rigo1etto Restaurant.
(0) January 6, 2003: At approximately 2:12 p.m.,
PELUSO and ARDITO met at Pasquale's Rigoletto and drove to Fiorino Jewelers, in the Bronx, New York. Once there, they spoke on the sidewalk with GERALD FIORINO (brother-in-law of Barney Bellomo, former acting boss of the Genovese LCN Family).
(p) January 22. 2003: At approxima~ely 10:00 a.m., ARDITO and PELUSO drove to 720 Post Road, Easfchester, New York, to the offices of Drs. George and Jeffrey Shapiro. Based on intercepted conversations that occurred around the time of this meeting, I believe that they met or attempted to meet with Genovese soldier MARIO GIGANTE at the doctor's office. ARDITO and PELUSO later traveled to Pasquale's Rigoletto from 12:27 p.m. until 12:54 p.m.
(q) January 31. 2003: From approximately 2:41 p.m. until 4:20 p.m., PELUSO was observed meeting with FIORINO at Fiorino Jewelers.
(r) March 22. 2003: ARDITO met with DOMINICK CIRILLO
(former acting boss of the Genovese LCN Family) at a bar inside the Sea Shore Restaurant from approximately 12:13 p.m. until 1:27
p.m. ll
11 Although I believe that ARDITO and the other subjects continued meeting at other locations in addition to the FOUR RESTAURANTS during the period from January through July 2003, there are few additional surveillances of meetings outside of the FOUR RESTAURANTS during this period because the resources of the FBI task force were focused on conducting surveillances and intercepting communications occurring at the FOUR RESTAURANTS.
• • • • • • • .' •
(s)' June 27, 2003: At approximately 12:43 p.m., ARDITO met DOMINICK CIRILLO at the Sea Shore Restaurant, City Island, New York.
(t) July 1, 2003: At approximately 2:27 p.m., ARDITO and PELUSO traveled,together to Pasquale's Rigoletto, where they met TOMAS TERRACIANO at the rear door'and entered together.
(u) , August 11, 2003: At approximately 1: 53 p. m., cars that I recognized as belonging to ARDITO, PELUSO and DORIS were observed in the marina parking lot near where DORIS's boat is docked in the New Rochelle, New York. ARDITO, PELUSO, and DORIS were observed leaving the boat at approximately 3:31 p.m.
(v) August 25, 2003: At approximately 11:53 a.m., ARDITO was observed parking at the marina in New Rochelle, New York, near the location where DORIS' boat is located. At approximately 1:53 p.m., the car recognized by the surveilling agent as belonging to the individual known as "AI the Electrician,,12 was observed at the marina, parked next to ARDITO's car. At 4:53 p.m., ARDITO and "AI the Electrician" left the boat.
63. Between July 2002 through August 2003, in addition to surveillances of meetings occuring at the FOUR RESTAURANTS, members of the FBI task force have conducted surveillances of
12 "AI the Electrician" is believed to be an associate of the Genovese LCN Family who was present at the meeting when ARDITO and several of the other SUBJECTS found one of the listening devices.
ARDITO and the other SUBJECTS on approximately twenty-one occasions, which are described above in paragraphs 62(a) through
(v) . From these surveillances, we have observed that ARDITO has, in fact, used locations that are impractical to specify to meet with the other SUBJECTS. ARDITO has had meetings at . approximately twenty different locations during those twenty-one surveillances. The locations at which these meetings have been held include the inside of cars, on the street as part of a "walk and talk," at approximately twelve different restaurants (in addition to the FOUR RESTAURANTS), at a jewelry store, an auto store, a doctor's office, and on a boat.
Based on the foregoing results of physical surveillances, as well as on my experience in this and other LCN investigations and source information, I believe that ARDITO is using locations in addition to the FOUR RESTAURANTS that are impractical to specify to conduct his meetings with the SUBJECTS and with other members and associates of LCN. These locations. that are impractical to specify are being used to discuss LCN activities, including extortionate control of retail and construction businesses, loansharking, labor bribery, as well as other offenses including check cashing fraud and medical billing fraud.
Furthermore, there is probable cause to believe that ARDITO will have the ARDITO CELLPHONE with him during his
meetings at various and changing locations with the other SUBJECTS. My belief is based on the following:
a. I have obtained records from Nextel Communications indicating that ARDITO has only one cellphone, which is the ARDITO CELLPHONE. ARDITO continues to use the ARDITO CELLPHONE to the present.
b. According to CS-1, ARDITO carries the ARDITO CELLPHONE with him at all times, and regularly uses it.
c. I have reviewed numerous interceptions of oral communications of meetings involving ARDITO and other SUBJECTS at the BRUNELLO PREMISES, AGOSTINO's PREMISES, MARIO'S PREMISES, and the MARINA PREMISES. During many of these meetings, ARDITO makes, or receives, calls on the ARDITO CELLPHONE. For example, during the period from March 27, 2003 through July 3, 2003, at meetings during which the FBI intercepted oral communications at one of the FOUR RESTAURANTS, ARDITO placed or received calls on the ARDITO CELL PHONE 18 times. Moreover, on July 3, 2003, ARDITO and Kathy Ivelli were intercepted at the MARINA PREMISES entering numbers from ARDITO'S pocket phone book into the database in the ARDITO CELLPHONE so that ARDITO would no longer have to carry his pocket phone book with him every day.
F. Unavailability of Alternative Investigative Technigues
66. For the following reasons, normal investigative techniques have been tried without success, 'reasonably appear unlikely to succeed if continued, reasonably appear unlikely to succeed if tried, or are too dangerous to employ:
(a) As set forth in detail in the prior affidavits, the confidential sources of information described herein do not know all of the details of the SUBJECTS' criminal conduct believed by your affiant to be necessary to ensure a successful prosecution of the SUBJECTS .. Although CS-l has overheard some of the SUBJECTS' meetings, CS-l is not privy to the full scope of the illegal activities being discussed by the SUBJECTS, nor is CS-l present or able to overhear all of the SUBJECTS' discussions at the various and changing locations at which those meetings are conducted. Moreover, CS-l is not willing to wear recording devices nor is CS-l willing to testify, as CS-l fears for CS-l's safety. Similarly, although CS~2 has observed the SUBJECTS meeting regularly within the MARIO'S PREMISES, CS-2 has not been able to overhear the SUBJECTS' conversations. Finally, CS-3 has provided only limited information about one meeting involving the SUBJECTS at the AGOSTINO'S PREMISES, but was not present during that meeting or any other meetings among the SUBJECTS. No additional confidential sources of information are currently available in
• • .' •
this investigation.
(b) As set forth in detail in the prior affidavits, physical surveillance of the SUBJECTS provides only limited evidence-as to their illegal activities. Physical surveillance, in and of itself, is useful mainly in placing individuals together, but provides limited evidence of the purpose of their meetings or the content of their conversations. For example, physical surveillance has permitted law enforcement to identify SUBJECTS JOHN "BUSTER" ARDITO, PETER PELUSO, MICHAEL DORIS, VINNY RUSSO, ANTHONY GUIDO, JOHN PALADINO, ABISH LAJQI, GERALD FIORINO, LARRY DENTICO, DOMINICK CIRILLO, TOMAS TERRACIANO, LOUIS MOSCATIELLO, KATHY IVELLI, ANTHONY ASCENZIA, JR., JOHN ALBANESE, MARIO GIGANTE, and LOUIS GIGANTE, JR. and others on numerous occasions at a variety of locations, but was unable to ascertain the subject matter of their conversations. Thus, the physical surveillance in this investigation has been helpful in placing people with each other, but has provided limited evidence of the purpose of the meetings or the content of their conversations. Moreover, physical surveillance is met with only limited success when the targets of the surveillance are conscious of surveillance and take steps to evade the surveillance. For example, as set forth in the March 3, 2003 Affidavit, and as described above, communications intercepted at the FOUR RESTAURANTS have established that the SUBJECTS are
extremely sensitive about surveillance and have been aware of surveillance conducted by agents in this investigation. The information that will be gained from electronic surveillance will assist in establishing the roles of individuals associated together, the nature of their activities, the location of physical evidence and the like. In addition, with the knowledge provided beforehand by electronic surveillance that a meeting is to take place at a given location, it may be possible to establish physical surveillance at that location in advance, thereby minimizing the risk of discovery inherent in following the SUBJECTS or remaining in the vicinity of target locations for long periods of time.
(c) As set forth in detail in the prior affidavits, use of a federal Grand Jury, as discussed with the Assistant United States Attorneys working on this investigation, does not, at this time, appear to be a promising method of investigation. The witnesses who could chiefly provide evidence to the Grand Jury as to the illegal activities and the identities of the racketeering enterprise members are, themselves, the identified members of the racketeering enterprise and of LeN generally. All" of these individuals face prosecution; it is unlikely, therefore, that any of them would testify voluntarily. Nor would it be desirable at this time to seek immunity for any of the known members of the racketeering enterprise in order to
. compel their testimony. Immunizi~g them could foreclo'se the possible prosecution of the most culpable persons, and would thwart the public policy that they be held accountable for their illegal activities. Moreover,. immunizing the witnesses cannot ensure the production of truthful testimony, and it is likely that these individuals would refuse to testify in contempt of Court, particularly in view of their ties to LCN. In any event, the granting of immunity is premature until the full scope of the illegal activities described above is known. The issuance of Grand Jury subpoenas to other individuals likewise would not likely lead to the discovery of critical information and undoubtedly would alert members of the racketeering enterprise to the existence and scope of the investigation, possibly causing the SUBJECTS to flee or to go into hiding, destroy evidence, threaten known or suspected Government agents or informants, or otherwise adversely affect the Government's investigation.
(d) As set forth in detail in the prior affidavits, applications for search warrants would appear to be premature at this stage of the investigation because, among other reasons, the results of searches would not be likely to identify unknown conspiracy members or to describe fully the nature and extent of the illegal activities of the SUBJECTS. Moreover,a search would inevitably tip-off targets of this investigation.
(e) As set forth in detail in the prior
affidavits, based on my experience, an undercover operation is
not feasible due, in part, to the unwillingness of the SUBJECTS to deal extensively with outsiders who are not members or associates of LCN and are neither friends nor acquaintances of Genovese LCN Family members or associates. Moreover, it also would cast suspicion upon –and consequently endanger –any informant who might attempt to introduce into the organization an outsider, whom the SUBJECTS might suspect is an undercover Special Agent. As described in the December 31, 2002 Affidavit, a Special Agent in an undercover role was able to overhear parts of a conversation between the SUBJECTS at one of the FOUR RESTAURANTS, but the Agent's overhear was incomplete and constituted far from the full breadth of the SUBJECTS' discussion. Moreover, if the same Agent were to begin to sit in close proximity to the SUBJECTS on a regular basis, it would unquestionably raise the SUBJECTS' suspicions and potentially compromise the investigation. As a result, it would be extremely difficult, and dangerous, to attempt to penetrate the organization with an undercover Special Agent and the likelihood of successfully doing so is remote at best.
(f) As set forth in detail in the prior affidavits, interviews of the SUBJECTS do not appear to be a promising avenue of investigation. Based on my experience and the experience of other Special Agents of the FBI, I believe that
any interviews of the SUBJECTS or the LCN members they have met with would not be successful. Mor.eover, interviews of any of the SUBJECTS or of other LCN members and associates would 'likely be counterproductive as the interviews might alert them and the SUBJECTS to the covert investigation. In addition, because of their culpability, there is no reason for the SUBJECTS to provide information unless confronted with facts that would encourage them to provide truthful information. Failing that, they are likely to invoke their privilege against self-incrimination. Interviews would also place the SUBJECTS on notice of the scope of the investigation. Interviews of victims of the extortions would not likely be fruitful because many of them have not yet been identified. Moreover, many of the business owners and union officials who may be able to provide information appear to be confederates of the SUBJECTS and, because of fear of reprisals from the SUBJECTS, would not be likely to provide truthful information, and the interviews may result in the disclosure to the SUBJECTS of the existence of the investigation.
(g) As set forth above, electronic surveillance in this case has revealed that ARDITO and PELUSO have used cellphones. Agents have obtained authorization to intercept, and in fact intercepted, communications over PELUSO's cellphone pursuant to the June 18, 2003 Order from June 18, 2003 through July 17, 2003. However, those interceptions, while helpful to
law enforcement, provided a very limited picture of PELUSO's and
the other SUBJECTS' criminal activities. PELUSO and the other individuals with whom he spoke were extremely careful and guarded on the cellphone, recognizing the potential for electronic interception. Accordingly, under these circumstances, the interception of PELUSO's cellphone would not provide law enforcement with detailed information about the SUBJECTS' criminal activities. Moreover, telephone toll records and pen register devices show only that a conversation occurred. They do not reveal the topics discussed, the contents of the communications, or the identities of the actual participants.
(h) Furthermore, although agents have previously intercepted communications occurring at the FOUR RESTAURANTS, those communications have revealed only part of the SUBJECTS' criminal activities. As set forth above, the SUBJECTS conduct their meetings not just at the FOUR RESTAURANTS, but at numerous other restaurants and locations that are impractical to specify, including in cars, during "walk and talks" on the street, and in offices. Based on my training and experience, and, as corroborated by the interceptions at the FOUR RESTAURANTS, the SUBJECTS are extremely conscious of the possibility of law enforcement surveillance, and therefore have meetings at locations at which they believe the likelihood of electronic interception is reduced, such as on the street or in public
restaurants. Indeed, the SUBJECTS in this case are now aware of
the listening devices at the AGOSTINO'S PREMISES and the MARINA PREMISES, as well as the existence of an investigation by law enforcement into their activities. Although they continue to meet at the FOUR RESTAURANTS (as set forth above, most recently as of August 20, 2003 at the AGOSTINO'S PREMISES), they are even more likely to be cautious in conducting their meetings in
furtherance of their racketeering enterprise as a result of their discovery of the listening devices. In sum, based on my training and experience, and my knowledge of this investigation, I believe that ARDITO and the other SUBJECTS regularly meet at locations that are impractical to specify in an effort to thwart law enforcement's ability to intercept their criminal conversations. Because of their use of locations that are impractical to specify, the FBI could not obtain Title III authorization to intercept the SUBJECTS' communications at all of the different locations at which they meet in order to understand fully their criminal activities. Accordingly, the authorization to intercept oral communications at the FOUR RESTAURANTS and of ARDITO at locations that are impractical to specify will enable the FBI to get a more complete understanding of the SUBJECTS' criminal activities and their involvement in the Genovese LCN Family, and to defeat their constant attempts to evade law enforcement scrutiny.
(i) Although an April 22-, 2003 order issued by
the United States District Court for the District of Connecticut authorized the interception of wire communications in which JOHN ARDITO is named as a target subject (the "Connecticut Order"), this wire interception will be of minimal assistance to this
investigation. First, the other SUBJECTS in this investigation are not named as target subjects with respect to the Connecticut Order, so interceptions pursuant to the Connecticut Order are unlikely to be of much assistance with respect to the relationship between the SUBJECTS in this investigation, and their criminal activity. Moreover, the FBI believes that, although ARDITO was named as a subject in the Connecticut Order, the focus of the Connecticut Order is on other individuals, including Pasquale "Scop" Deluca (believed to be a rival of ARDITO's with regard to his control over certain interests of the Genovese LCN Family in Connecticut), rather than on ARDITO and his crew.
67. For the above reasons, it is believed that the only means by which the full scope of the SUBJECTS' ongoing criminal activities can be ascertained is by the interception of the SUBJECTS' oral communications as applied for herewith.
A. Personnel
68. As noted above, this case is being investigated by
r. • • • • • • •
the Joint Organized Crime Task Force of the NYPD and FBI. It is
anticipated that, during the requested electronic surveillance, all monitoring will be performed and supervised by Special Agents of the FBI and Special Federal Officers.
B. Minimization
69. All interceptions of oral communications occurring at the FOUR RESTAURANTS and at the various and changing locations used by ARDITO will be minimized in accordance with Chapter 119 of Title 18, United States Code. The Special Agents of the FBI and Special Federal Officers who are to carry out the requested interceptions of oral communications will be instructed concerning the steps that they should take to minimize the interceptions. Any interception will cease when it is determined that the monitored conversation is not criminal in nature or that none of the named interceptees or other co-conspirators is a party to the conversation. The agents and officers will be permitted to spot check to determine whether a minimized conversation has turned criminal in nature. Moreover, when intercepting conversations at the locations used by JOHN "BUSTER" ARDITO that are impractical to specify pursuant to Title 18, United States Code, Section 2518(11) (a) (iii), no interception will begin until the agents and officers conducting the interception have reason to believe, through physical surveillance, source information, prior interceptions or conduct,
r·
or other facts revealed during the course of the,investigation, that ARDITO and other SUBJECTS or other members and associates of LCN are ~ngaging in conversations regarding the SUBJECT OFFENSES.
70. It is requested that the order authorizing interception of oral communications provide that, if necessary, translators be authorized to assist in conducting this surveillance and to receive disclosure of intercepted communications. Certain of the SUBJECTS are expected to communicate with each other in the Italian language. It may therefore be necessary to secure the services of translators in order to assist Agents in monitoring and translating the intercepted communications. All such translators will be under contract to the FBI and will be directly supervised by the FBI and deputized law enforcement officers of the NYPD. It is further requested, pursuant to Title 18, United States Code, Section 2518(5), that, in the event the intercepted communications are in a code or foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.
c. Period of Interception
71. 'The information set forth in this affidavit establishes, among other things, probable cause to believe that: JOHN "BUSTER" ARDITO, PETER PELUSO, MICHAEL DORIS, VINNY RUSSO,
ANTHONY GUIDO, JOHN PALADINO, ALBERT FACCHIANO, MICHAEL "HIPPY"
ZANFARDINO, SALVATORE LARCA, RICHARD SERVIDIO, ABISH LAJQI, ANDREW RIBUSTELLO, ERNEST MUSCARELLA, GERALD FIORINO, PHILLIP BUONO, DOMINICK DEVITO, RONALD CACCIATORE, LARRY DENTICO, DOMINICK CIRILLO, PAT SIMONE, TOMAS TERRACIANO, JOHN LAMAGNA, JOHN PISTONE, LOUIS MOSCATIELLO, MATTHEW IANIELLO, ANTHONY
FEDERICI, JOSEPH SALCITO, KATHY IVELLI, SONNY MARKS, GUS CURCIO,
ANTHONY ASCENZIA, JR., ARTHUR NIGRO, JOHN ALBANESE, MARIO GIGANTE, LOUIS GIGANTE, JR. and others as yet unknown, will discuss and engage in criminal activity at the FOUR RESTAURANTS and at locations used by ARDITO that are impractical to specify.
72. IT IS HEREBY REQUESTED that an order be issued authorizing Special Agents of the FBI and Special Federal Officers to intercept oral communications occurring at the FOUR RESTAURANTS and at locations used by ARDITO that are impractical to specify concerning the affairs of the enterprise described herein and the SUBJECTS' commission of the above-described offenses. Because the offenses described herein are continuing in nature and are likely to continue after the initial interception of the particular communications that are the objects of this request, it is requested that the Court's order authorizing interception of oral communications not be required to terminate automatically when the types of communications described above have first been obtained, but be permitted to
continue until all oral communications are intercepted that reveal fully the manner in which the·SUBJECTS, and·others as yet unknown, participate in the above-described offenses, or until the accomplishment of the objectives set forth in , 13, supra, or for a period of thirty (30) days, whichever is earlier. The 30day period shall be measured from the earlier of the date on which investigative or law enforcement officers begin to conduct interception under this Court's Order or ten days from the date of this Court's Order.
IT IS HEREBY REQUESTED that an order be issued authorizing Special Agents of the FBI and Special Federal Officers to intercept oral communications both in the Southern District of New York and outside this jurisdiction but within the United States through the use of a "mobile interception device" pursuant to Title 18, United States Code, Section 2518(3). As described above, ARDITO engages in criminal conversations at locations in the Southern District of New York and in other jurisdictions that are impractical to specify. The ARDITO CELLPHONE, which ARDITO carries with him on his person, therefore constitutes a mobile interception device as set forth in Title 18, United States Code, Section 2518(3). The Court will be advised of the locations (and Districts) of the interceptions.
IT IS HEREBY REQUESTED that Special Agents of the FBI, detectives of the NYPD, and employees of the FBI possessing
required technical expertise be permitted to enter onto private property and to effect surreptitious entry onto locations for ,the purpose of effectuating this order, including installing, maintaining, and removing any electronic interception devices to be used in accomplishing the proposed interception of oral communications at the FOUR RESTAURANTS and at locations used by ARDITO that are impractical to specify. The Court will be notified as soon as practicable after each such entry.
Special Agent Federal Bureau of Investigation
~~to before me this day of September, 2003