United States v. Vittorio Amuso, Also Known as Jesse, Also Known as Vic

Citations: 21 F.3d 1251; 1994 U.S. App. LEXIS 8389Docket: 135

Court: Court of Appeals for the Second Circuit; April 20, 1994; Federal Appellate Court

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Vittorio Amuso, also known as Jesse or Vic, appeals his conviction on multiple charges, including racketeering, extortion, fraud, bribery, and murder, resulting from a fifty-four count indictment under RICO (18 U.S.C. Secs. 1962(c) and (d)). Following a jury trial presided over by Judge Eugene H. Nickerson in the Eastern District of New York, Amuso was found guilty on all counts and sentenced to life imprisonment. On appeal, he contests various evidentiary rulings: the use of his flight as evidence of guilt, the exclusion of negative character evidence against a prosecution witness, the admission of criminal conduct by a co-conspirator, and the allowance of expert testimony on organized crime terminology. Additionally, Amuso argues that empaneling an anonymous and sequestered jury was erroneous.

Prior to this trial, Amuso had been indicted in May 1990 alongside fourteen co-defendants for corrupting New York City's window replacement industry, where they allegedly extorted payoffs and controlled unions and companies. Amuso fled upon learning of the indictment, remaining a fugitive until captured by the FBI in July 1991. The subsequent April 1992 indictment, which forms the basis of this appeal, included charges of tax fraud and multiple murders, asserting that Amuso, as the boss of the Luchese crime family, held authority over these crimes even while in hiding. The trial commenced in May 1992 with both the murder and window replacement charges against Amuso. The appellate court ultimately affirms the district court's decisions.

Substantial evidence presented at trial supported the Windows counts, including testimony from Peter Savino, an associate of Amuso in the window industry, who detailed the control exerted by Amuso and other crime family leaders over New York City Housing Authority contracts. Savino's claims were backed by recorded conversations he obtained while cooperating with the government, revealing organized crime's significant influence in the window replacement sector and Amuso's key role. Additionally, Peter Chiodo, a former captain of the Luchese family, testified that he acted as Amuso's agent in the Windows conspiracy, overseeing labor racketeering for Local 580, with his account also supported by recorded evidence.

For the murder counts, testimony from Chiodo and Alphonse D'Arco, another former Luchese captain, detailed a violent campaign led by Amuso from 1988 to 1991 against perceived disloyalty, resulting in numerous murders. They claimed Amuso ordered them to carry out thirteen murders or attempted murders, with D'Arco specifically tasked with eliminating Chiodo before becoming a target himself. The prosecution relied heavily on their testimonies, although additional witnesses and documents provided some corroboration. A government expert emphasized that any murder by organized crime members requires the boss's approval.

The indictment's first murder charge involved Sorecho "Sammy the Arab" Nalo, whom Amuso eventually permitted Chiodo to have killed after ensuring the arrangement aligned with Luchese family's interests. Nalo was murdered on October 25, 1988. Additionally, Amuso ordered the killing of Thomas "Red" Gilmore, suspected of being an informant, with D'Arco later confirming the murder to Amuso after it was carried out.

On May 13, 1989, Michael Pappadio, a member of the Luchese crime family, was murdered by D'Arco, acting on orders from Amuso, who suspected Pappadio of withholding extortion income. Pappadio's refusal to comply with Amuso's directives led to the murder. D'Arco detailed the killing and disposal of the body, and Amuso praised him afterward. Chiodo testified to a conversation with Casso, Amuso's second-in-command, indicating plans to kill Pappadio. Evidence included Amuso's tax returns showing income from Supreme Garment Carriers, linking him to the garment industry.

On September 13, 1989, John Petrucelli was murdered after falling out of favor with Amuso for hiding a Bonanno family associate. D'Arco was instructed to pressure Petrucelli to kill the associate or face death himself. Following Amuso's orders, Casso later directed D'Arco to arrange Petrucelli's murder. Chiodo confirmed Petrucelli's membership and discussed his fate in meetings with Amuso and Casso.

John "Sonny" Morrissey was killed on September 17, 1989, due to suspicions of his cooperation with law enforcement. Chiodo and other Luchese members executed the murder under Amuso and Casso's orders, burying Morrissey’s body to conceal it. 

In 1991, after a failed assassination attempt on Chiodo, he began cooperating with authorities and led them to Morrissey's remains. The indictment against Amuso included conspiracy to murder Anthony Accetturo Sr., Jr., and Joseph LaMorte, suspected of disloyalty. Chiodo testified that Amuso ordered him to kill the Accetturos, but they went into hiding. Casso, in Amuso's presence, directed Chiodo to kidnap and torture LaMorte for information on the Accetturos, although the kidnapping failed. LaMorte was later shot but survived, while the Accetturos were never located.

D'Arco corroborated Chiodo's account regarding meetings with Amuso and Casso, where plans to murder the Accetturos were discussed. He testified about directives from Amuso and Casso to kill the Accetturos and acknowledged Chiodo's involvement in locating them. The government presented evidence, including American Express receipts and hotel records from Florida, to support Chiodo's claims about his attempts to find the Accetturos and LaMorte. Additionally, photographs provided by D'Arco, used to identify targets, confirmed the narrative.

Amuso faced charges for conspiracy to murder and attempted murder of Joseph Martinelli, a concrete company owner with ties to the Luchese family. Despite Martinelli's financial struggles, Amuso and Casso pressured Chiodo to ensure he resumed payments. Following Chiodo's failed attempts to persuade Martinelli, Casso indicated a desire to kill him, suggesting that Martinelli's partner might understand the message after the hit. Chiodo recounted an incident in which he attempted to shoot Martinelli but the gun malfunctioned, later explaining it as a joke.

D'Arco testified that Amuso and Casso tasked him with aiding Chiodo in coercing Martinelli, expressing frustration over Chiodo's inability to execute the murder. Ultimately, Martinelli agreed to pay Amuso and Casso $60,000 and use Luchese-affiliated suppliers, leading to the cessation of attempts on his life, though the murder contract remained active.

The indictment also charged Amuso with the murder of Michael Salerno, a rival within the Luchese family. D'Arco described Casso labeling Salerno a "rat" and Amuso's intent to kill him. Following orders from D'Arco, Salerno was murdered in June 1990. D'Arco recounted a meeting with Amuso and Casso, where Amuso praised him for the killing. Chiodo further testified about Amuso and Casso's distrust of Salerno and their instructions to him regarding oversight of Salerno's operations.

On August 24, 1990, Bruno Facciola, a member of the Luchese crime family, was murdered after being labeled a "rat" by leaders Amuso and Casso. D'Arco testified that Facciola’s murder was ordered due to suspicions of him informing authorities, alongside accusations against other associates Al Visconti and Larry Taylor, who were also killed in early 1991 for similar reasons. D'Arco stated that Amuso disapproved of Visconti's reputation, prompting orders for his assassination, which Amuso approved after it was executed. The indictment also included an attempted murder charge against Amuso concerning Peter Chiodo, a former member whose relationship with Amuso soured after he pled guilty to charges without permission. Amuso suspected Chiodo of cooperating with authorities, leading to a murder assignment that failed as Chiodo survived and later testified against Amuso. Following a jury trial that lasted less than a day, Amuso was found guilty on all fifty-four counts and sentenced to life in prison, a $250,000 fine, and a special assessment of $2,700. Amuso appealed, contesting the admission of evidence regarding his flight from New York, arguing that it was prejudicial and irrelevant to the charges that occurred while he was in hiding, and claimed that the jury's inference of guilt from his absence was erroneous. He requested that the ruling be reversed, asserting that the inflammatory nature of the murder charges tainted the entire indictment.

Amuso challenges the admissibility of evidence regarding his flight from New York in May 1990, asserting that it lacked a factual basis since the government's witness, D'Arco, claimed Amuso fled to enhance his defense against the Windows charges. The government argues that Amuso's flight is relevant to the context of the murder conspiracies during his time as a fugitive, as the indictment states he retained authority over murders and ordered several while on the run. The court agrees with the government, emphasizing that flight evidence is pertinent for understanding the circumstances of the charged crimes. D'Arco's testimony indicated that Amuso feared challenges to his authority while in hiding, which justified the use of indirect communication methods. The flight evidence was deemed admissible to provide context for the murders and was appropriately referenced by the government in its closing arguments. Although Amuso contends that the evidence suggested consciousness of guilt, he does not dispute the act of fleeing itself. The court highlights that varying interpretations of flight evidence do not inherently negate its admissibility, and the judge's discretion in such matters is respected unless abused. The admissibility of flight evidence is ultimately at the judge's discretion, allowing defendants to present counter-evidence as needed.

Jury findings regarding Amuso's departure from New York could support either the view that he left to avoid prejudice related to the Windows charges or that he fled due to a consciousness of guilt. D'Arco's testimony indicated Amuso believed he would have a better chance of acquittal if he stood trial alone, which does not negate a guilty conscience. The district court appropriately presented evidence of Amuso's flight to the jury, as it was positioned to assess the potential prejudice of this evidence. 

Regarding jury instructions, Amuso argued the court erred by allowing the jury to consider his "continued absence" as evidence of guilt related to any murder charges. He contended that the only reasonable inference from his flight was guilt concerning the Windows charges, given that those indictments did not include murder allegations. However, the court's instruction clarified that the jury could only consider flight evidence concerning the charges Amuso believed he was facing at the time of his flight. Since the original Windows indictment did not include murder charges, the jury could not infer guilt for those charges based on his flight. The instruction emphasized that flight does not equate to a presumption of guilt and that the jury must determine the significance of Amuso's feelings about his guilt.

Amuso contends that even if the jury's consideration of flight evidence was appropriate, the district court improperly broadened the scope of permissible inferences by allowing the jury to consider his "continued absence" after he learned that witnesses were cooperating with the government. The distinction lies in the timing of the witnesses' cooperation; D'Arco began cooperating only after Amuso's capture, while Chiodo had already begun cooperating before this event. As a result, the jury was permitted to infer Amuso's guilty conscience regarding the murders Chiodo was aware of due to his continued absence.

The court noted that it has not previously determined whether "continued absence" can indicate a defendant's consciousness of guilt. It emphasized that, similar to flight evidence, a jury's use of continued absence must be based on relevant evidence and a factual predicate that allows reasonable inferences about guilt. The court referenced *United States v. Sanchez* to underline that a proper factual basis is necessary to ensure probative value and to protect against the jury drawing unsupported conclusions.

The trial court may exclude flight evidence if it finds it unduly prejudicial, even with a proper factual predicate. For continued absence to be probative, the government must demonstrate that the defendant's absence was due to a guilty conscience regarding the specific charges. If the factual basis is weak, the probative value will be limited, and the court must weigh this against potential prejudice under Fed. R. Evid. 403. Although continued absence can be probative, the court rejected the notion that such evidence should be categorically excluded, stating that it would review the adequacy of the factual predicate and the district court’s discretion in admitting the evidence.

The record lacks sufficient factual basis to support the district court's jury instruction regarding Amuso's continued absence as indicative of guilt. D'Arco, a government witness, stated that Amuso intended to leave New York to avoid trial with his co-defendants and planned to return later for his trial. The government suggested that Amuso's discussions about his return ceased upon learning of Chiodo's cooperation with authorities, but offered no evidence that Amuso altered his original plan. Amuso's capture before the Windows trial concluded further undermined the government's claim that he intended to remain a fugitive. Consequently, it was erroneous for the court to instruct the jury to consider Amuso's absence in relation to the murder charges. However, this error was deemed harmless due to overwhelming evidence of Amuso's guilt, primarily through direct testimony from D'Arco and Chiodo, which was largely corroborative despite some inconsistencies. The court's flawed instruction did not elevate the absence evidence to a central issue in the jury's considerations, as the instruction itself acknowledged the potential weakness of such evidence and advised the jury to weigh it against the overall evidence in the case. Given these circumstances, it is unlikely the jury placed significant importance on Amuso's continued absence.

The government's reference to Amuso's "continued absence" during summation was minimal, with only one instance linking it to his guilt regarding the Chiodo murders. The prosecution suggested that Amuso's intention to return diminished after Chiodo agreed to testify against him. Although these comments were improper, they were considered in the context of the overall evidence, which was substantial and supported the conviction based on witness testimony rather than any inference of guilt from Amuso's absence. Consequently, the erroneous instruction regarding his absence was deemed harmless due to the limited government use of this argument and the strong independent evidence of guilt.

Regarding extrinsic negative character evidence about D'Arco, Amuso attempted to introduce documents showing D'Arco's prior false statements to challenge D'Arco's credibility. The court admitted some documents but excluded others based on relevance and potential confusion. Amuso argued that this exclusion violated his Sixth Amendment right to confront D'Arco. However, the court found the excluded evidence was not directly relevant to the elements of the offense but rather intended to impeach D'Arco's credibility, which is generally not permissible under Federal Rule of Evidence 608(b). The case cited by Amuso, which allowed for the introduction of similar acts to prove knowledge, was distinguishable as it pertained to a direct element of the accused offense.

Judge Nickerson did not abuse his discretion in excluding certain documents under Rule 403, despite their potential admissibility under Rule 404(b), due to concerns of prejudice and jury confusion. Amuso was able to confront D'Arco about his prior false statements and crimes during cross-examination, which rendered the excluded documentary evidence cumulative. Amuso argued that the evidence was necessary to demonstrate D'Arco's deceit, but D'Arco's admissions made its inclusion unnecessary and potentially confusing for the jury.

Regarding the admission of evidence from Anthony Casso's safe deposit box, the prosecution presented items, including a diamond ring and cash, to establish Amuso's involvement in racketeering and tax evasion. Amuso contended that this evidence was irrelevant and prejudicial, warranting exclusion under Rule 403. However, the court maintained broad discretion over evidence relevancy determinations, which are only overturned if deemed arbitrary or irrational. Testimonies from D'Arco and Chiodo connected Amuso to Casso’s financial operations, indicating that they conducted business primarily in cash and structured transactions to evade taxes. This evidence allowed a reasonable jury to infer that the significant unexplained wealth indicated illicit income sources.

In United States v. Tramunti, the court addressed the admissibility of evidence linking Amuso to racketeering activities, primarily through testimony from D'Arco and Chiodo, which indicated that cash from the Luchese family’s illegal operations was sent to Amuso and Casso. The possession of substantial cash and a diamond suggested Amuso's involvement in these activities and potential income concealment, leading the court to affirm that Judge Nickerson's decision to admit this evidence was not irrational or arbitrary.

Amuso contested the expert testimony by FBI Agent Brian Taylor, which described organized crime family structures and rules, particularly the assertion that only the boss could authorize executions. Amuso argued this testimony was merely intended to enhance the credibility of government witnesses. However, the court noted that district courts have broad discretion under Federal Rule of Evidence 702 regarding expert testimony admission, and such decisions are only overturned if manifestly erroneous.

The court acknowledged that while some of Taylor's testimony overlapped with witness accounts, it encompassed essential information on organized crime terminology and structure that would not be common knowledge to average jurors. Thus, the court found no error in admitting Taylor's expert testimony, affirming its relevance and necessity for understanding the context of the case.

The government moved to empanel an anonymous and sequestered jury for Amuso's trial, citing his past attempts to obstruct justice, the potential impact of pretrial publicity on jury impartiality, and the risk of jury tampering given his position as the alleged boss of the Luchese crime family. The district court approved the motion, emphasizing the need to protect jurors from threats while ensuring a fair trial. Amuso contested this decision, claiming it hindered his ability to conduct voir dire effectively and to ensure a representative jury, arguing that the court's justification was primarily based on his alleged mob ties, which he believed violated his due process rights and his Sixth Amendment right to an impartial jury.

In evaluating the district court's decision, a balance must be struck between the defendant's rights and the jurors' safety, as well as the public interest in a fair verdict. The court found adequate justification for the jury's protection, noting the violent nature of the charges against Amuso and his capability to influence jurors. The court also provided a neutral rationale for sequestration, aimed at preserving the presumption of innocence.

The district court's decision was supported by evidence beyond Amuso's organized crime connections, which was considered alongside other factors indicating the need for precautionary measures. Ultimately, the court found no reversible error in Amuso's claims, affirming the district court's judgment. A concurring opinion noted that while there were questions about certain evidence, the majority's classification of it as harmless error eliminated the need for further discussion.