United States v. Victor J. Orena, Also Known as Little Vic

Citations: 32 F.3d 704; 1994 U.S. App. LEXIS 21898Docket: 1182

Court: Court of Appeals for the Second Circuit; August 15, 1994; Federal Appellate Court

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Victor J. Orena appeals his conviction from the United States District Court for the Eastern District of New York, where he was found guilty of multiple charges, including racketeering, conspiracy to murder, and firearms violations, linked to an internal conflict within the Colombo Family of the Cosa Nostra. The court upheld the district court's decision, affirming the conviction and denying Orena's motion for a new trial. The case stems from a power struggle within the Colombo Family following the incarceration of boss Carmine Persico. Orena was appointed as acting boss in late 1988 but sought to become the official boss, leading to a rivalry with Persico, who intended to replace him with his son. This conflict resulted in numerous violent incidents, including murders and assassination attempts within the family.

Evidence presented at Orena's trial linked him to the murder of Colombo Family captain Thomas Ocera, which occurred around November 13, 1989. In October 1991, Michael Maffatore, a Colombo Family associate involved in Ocera's burial, agreed to cooperate with the FBI, leading agents to Ocera's grave where his body was found with a metal wire around his neck. Following months of investigation, Orena was arrested on April 1, 1992. 

At trial, the government called witnesses including Maffatore and Harry Bonfiglio, who participated in the burial, and several other Cosa Nostra members who testified about Orena's racketeering, loansharking, and murder conspiracies. Notable testimonies came from Joseph Ambrosino, Alfonso D'Arco, Salvatore Gravano, and Diane Montesano, Ocera's girlfriend. The prosecution presented wiretap recordings and loansharking records found at Ocera's restaurant and an apartment used by Orena's associates. Additionally, firearms, cash, a bulletproof vest, beepers, and mobile phones were seized from Orena's girlfriend's residence. 

The jury convicted Orena on all counts, leading the district court to impose multiple life sentences for racketeering and murder, along with additional sentences for conspiracy, loansharking, and firearm possession, totaling a fine of $2.25 million. Orena was also required to pay his imprisonment costs and special assessments. He appealed his conviction and subsequently filed a motion for a new trial, citing alleged perjury by Gravano and prosecutorial misconduct, which the district court denied. This denial was consolidated with his appeal against the conviction for review.

Orena's appeal raises multiple arguments for reversing his convictions. Firstly, he contends that the indictment's RICO "enterprise" allegations are flawed due to the internal conflict within the Colombo Family, which undermines the statutory requirement for an enterprise. He claims the evidence presented was inadequate to support his substantive and conspiracy RICO convictions. Orena also argues that because there was no ongoing RICO enterprise, the testimony from Persico loyalists regarding his racketeering activities should have been excluded as coconspirator testimony.

Additionally, he asserts that the indictment failed to specify an overt act in the murder conspiracy charges, violating New York law, and that it inadequately named all intended victims of the murder conspiracy. Orena claims that the murder conspiracy and murder charges lacked specificity regarding the types of homicide he allegedly committed or conspired to commit. He further challenges the admission of firearms evidence seized during his arrest and from other associates, arguing that it lacked proper authentication, as did the loansharking records from his restaurant and an associate's apartment.

Orena also contends that the district court wrongfully excluded evidence of a conflicting theory about Ocera's death presented at another trial. He criticizes Judge Weinstein for improperly fining him and imposing incarceration costs. Lastly, he claims the government allowed perjury by Gravano and failed to disclose significant evidence related to the testimonies of Gravano and Montesano, which he believes warranted a new trial. Each of these issues is addressed in the following sections of the legal document. 

The indictment accurately identified the Colombo Family as the RICO enterprise, and the internal conflict is seen as affecting the sufficiency of the evidence rather than the charging of an offense. Orena's claims regarding the indictment’s validity were not raised in the district court, but he argues that the alleged misdefinition of the enterprise element constitutes a failure to charge an offense, despite the court's stance that the enterprise was adequately charged.

To secure a conviction under the RICO statute, the government must prove both the existence of an "enterprise" and a "pattern of racketeering activity." Orena argues that the evidence was insufficient to support RICO verdicts, claiming the Colombo Family enterprise ceased to exist after July 1991, when conflicts arose between the Orena and Persico factions. However, the court disagrees, noting that the RICO statute defines "enterprise" broadly, including any legal entity or individual group. Internal disputes do not inherently signal the dissolution of an enterprise, especially if they revolve around control of that enterprise. Previous cases support this view, indicating that violent conflicts or disputes can actually reflect an ongoing enterprise or conspiracy.

Evidence presented in the case supported the verdict, with testimonies indicating ongoing relationships and expectations among members of the Colombo Family despite the conflict. For instance, there were expectations for shared proceeds and attempts by other Cosa Nostra families to mediate the dispute. Orena did not meet the burden required to challenge the sufficiency of evidence for his conviction, as the evidence demonstrated that the Colombo Family members continued to associate for a common purpose despite the factional conflict.

Additionally, Orena's argument regarding the admission of coconspirator testimony, due to alleged confusion in the indictment over "enterprise," was rejected. Statements made by a coconspirator during the course and in furtherance of the conspiracy are not considered hearsay under Fed. R. Evid. 801(d)(2)(E). The court found no prejudicial error in the admission of such testimony.

To admit evidence under Rule 801(d)(2)(E), the district court must find that a conspiracy existed between the declarant and the nonoffering party, and that the statement was made during the conspiracy's course and in furtherance of it. The court's findings are reviewed for clear error. During the trial, evidence indicated that members of the Persico faction attempted to assassinate rival Orena in June 1991, marking the start of hostilities between their factions. Orena contended that after this date, Persico faction members could not be considered coconspirators. Judge Weinstein ruled that the overarching conspiracy continued but excluded testimony from Ambrosino regarding statements made to him by Sessa after June 1991, based on Fed. R. Evid. 403, which allows exclusion of evidence if its probative value is outweighed by unfair prejudice.

Orena argued that the court improperly allowed testimony that should have been excluded under Rule 801(d)(2)(E) and confused the jury with its instructions. However, the admission of tape recordings from June 9 and 10, 1991, adhered to the court's prior rulings, and Orena's objections regarding Ambrosino's testimony about Sessa's claims of intended killings were also found to be consistent with those rulings. Ultimately, Judge Weinstein allowed identification of Ocera as the murder victim based on Ambrosino's earlier admissible testimony, despite Orena's objections that Sessa could only have learned this from him. Weinstein provided the jury with a cautionary instruction regarding the unavailability of Sessa for cross-examination, ensuring the integrity of the testimony given.

The admission of testimony from Sessa was deemed objectionable due to its inconsistency with Judge Weinstein's prior ruling regarding post-June 1991 statements from the Persico faction, particularly since Sessa's status as Orena's coconspirator was questioned. Consequently, any testimony based on Sessa's statements would be inadmissible regardless of how he obtained the information. After Ambrosino's testimony, Orena highlighted that Sessa's knowledge originated from him and requested the court strike the testimony, which Judge Weinstein granted. He instructed the jury to disregard hearsay from after July 1991 regarding Orena, as Sessa was then in conflict with him.

Orena also challenged the admission of hearsay testimony about the Orena-Persico conflict, arguing it circumvented the requirements of Rule 801(d)(2)(E). Judge Weinstein justified the admission under Rule 803(24), asserting the testimony's reliability due to the life-threatening circumstances involved, confirming it met the rule's criteria and that he did not abuse his discretion.

Further, Orena claimed error in admitting testimony by D'Arco and Gravano related to a broader conspiracy involving the Colombo Family and others, emphasizing that the conspiracy referenced does not need to align with the one charged in the indictment. The court found sufficient evidence of a conspiracy among the families, consistent with precedent cases. Judge Weinstein's remark about the necessity of communication within gangs to maintain morale and cohesion among members was also supported by legal rationale.

Lastly, Orena's objections to instructional errors were addressed, particularly regarding the distinction between single and multiple conspiracies, where the judge clarified that if all parties were part of a single conspiracy, statements made to advance that conspiracy were permissible, contrasting with separate conspiracies where individual motives might apply.

The excerpt addresses the complexities of assessing conspiracy charges in relation to witness testimonies and hearsay evidence. It clarifies that while there may be conspiracies, it is ultimately the jury's role to determine their existence based on the evidence presented. The court emphasized the importance of allowing a comprehensive view of the evidence to understand biases and motivations of witnesses, despite challenges in untangling relationships within the evidence. 

Concerns regarding jury instructions related to hearsay and conspirator testimony are addressed, stating that no improper hearsay was admitted that would prejudice Orena's case. The court will not reverse a conviction based on jury instruction errors unless prejudice is demonstrated. Additionally, Orena's argument against a corrective instruction regarding witness testimony was deemed frivolous.

Regarding the conspiracy to murder charges, Orena was charged under federal law, which does not require an overt act. However, he argued that New York law necessitates an overt act to sustain a conspiracy conviction. The court noted that Orena failed to raise this defense before trial, leading to its dismissal on appeal. The indictment is considered sufficient unless it fundamentally fails to charge an offense for which Orena was convicted.

The murder conspiracy counts in the indictment met the necessary elements of the federal statute, Sec. 1959(a)(5), which Orena does not dispute. A RICO indictment only requires a "generic definition" of the underlying state crime, not a detailed account of state penal codes. Even if an overt act is necessary, the RICO statute does not require adherence to state pleading rules, and any failure to charge an overt act was waived as Orena did not raise the issue before trial.

Orena contends that the indictment's failure to specify the intended victims of the conspiracy to murder members of the Persico faction was a fatal flaw. However, the government had identified twelve intended victims and indicated there could be more, which Orena did not seek to clarify further, thus failing to preserve the issue for appeal. The court found no deficiency in the indictment, as Orena had sufficient notice to prepare a defense.

Regarding the admission of firearms found at the residence where Orena was arrested, the court upheld their admission, noting that Orena's association with the Colombo Family made it improbable that someone else would store items there. Orena argued insufficient connection to the firearms, but circumstantial evidence can establish such a connection. The trial judge has broad discretion in determining the authentication of evidence.

The district court acted within its discretion by admitting firearms found under a wooden deck, as it was reasonable to conclude they belonged to Orena or were under his control, especially given the context of mob-related violence. Orena contested the admission of firearms seized from other Colombo Family members, arguing they did not belong to him; however, these weapons were relevant to proving the existence of a conflict between the Orena and Persico factions. Additionally, Orena objected to the introduction of loansharking records obtained from a restaurant and an apartment used by associates, but these records were deemed admissible as coconspirator statements since they pertained to a loansharking conspiracy involving Orena. Judge Weinstein's examination confirmed the records' loansharking nature, and further evidence linked Orena to these activities.

Orena also claimed that the prosecution presented a theory of Ocera's murder that conflicted with a prior trial involving associate Harry Bonfiglio. He argued that he should have been allowed to introduce the government's opening statement from that trial, asserting its exclusion was a reversible error. The defense can introduce prior inconsistent prosecutorial statements if the prosecution fails to provide an innocent explanation for the contradiction. However, the court found no contradiction between the prosecution's theories in the Orena and Bonfiglio trials.

At Bonfiglio's trial, the prosecution argued that Ocera was murdered due to his involvement in skimming loansharking proceeds. In contrast, the prosecution at Orena's trial presented three reasons for Ocera's murder: skimming loansharking proceeds, inability to retrieve seized loansharking records, and Orena's desire to gain favor with John Gotti, the Gambino family boss, who wanted Ocera dead. These additional theories were not conflicting with the Bonfiglio trial's arguments, and no evidence from Bonfiglio's trial justified introducing these theories during Orena's trial. Consequently, the district court correctly excluded Bonfiglio's opening statement from Orena's trial.

Judge Weinstein issued a joint sentencing memorandum imposing a $2.25 million fine on Orena, based on his lifelong involvement in high-interest lending and the concealment of significant assets. The judge concluded that the financial information available significantly underrepresented the defendants' true financial status, and they needed to reimburse society for the economic drain caused by their criminal activities and the costs of their imprisonment. Evidence indicated Orena led a profitable loansharking operation, justifying the severe fine. Orena had the burden of proving his inability to pay, which he failed to do convincingly.

The court also affirmed the imposition of monthly incarceration costs of $1,492 on Orena. Although Orena cited a case suggesting the district court lacked authority to impose such fines, other circuit courts have reached the opposite conclusion, and the Sentencing Guidelines authorize such fines. The court declined to follow the cited case and upheld the imposition of incarceration costs.

Following his conviction, Orena moved for a new trial based on alleged prosecutorial misconduct, claiming the government presented false testimony and failed to disclose exculpatory evidence. The district court denied his motion, and Orena renewed these claims on appeal, specifically referencing testimony provided by Gravano as false.

In the trial of Pasquale Conte, the government aimed to detain him without bail, indicating that Gravano would testify about his approach to Conte on behalf of John Gotti regarding narcotics trafficking profits. Orena argues this contradicts Gravano's prior testimony claiming the Mafia forbade drug trafficking and should have been disclosed to him. Montesano testified that Orena was aware of an ambush attempt on Ocera, but later clarified that Orena likely learned this from Ocera himself. Orena claims this exculpatory evidence was withheld. 

For a reversal due to prosecutorial conduct, it must meet a high standard of denying a fair trial, which Orena failed to demonstrate. Gravano had previously testified that the Mafia’s drug trafficking prohibition was often ignored. Judge Weinstein concluded that disclosing Gravano's dealings with Conte wouldn't have significantly affected Orena's ability to challenge Gravano's credibility, especially since ample evidence of Gravano's criminal history was available to the jury. 

Regarding Montesano's testimony, Orena presumed the government knew about her later clarifications, but the government denied this, and Judge Weinstein accepted that denial. There was no indication that her later testimony would have altered the trial's outcome. Consequently, the judgment of conviction and the denial of Orena's motion for a new trial were affirmed. The underlying racketeering charges included conspiracy to murder Ocera, murder of Ocera, conspiracy against faction members, and loansharking. The RICO allegations involved Orena's participation in the Colombo Family's affairs, with the murder counts emphasizing the intent to enhance his position within the organization. Rule 803(24) outlines hearsay exceptions for statements with equivalent circumstantial guarantees of trustworthiness if deemed material.

A statement can be admitted as evidence if it is more relevant than any other evidence the proponent can reasonably obtain and serves the interests of justice. The proponent must inform the opposing party in advance of the trial about the intention to offer the statement, along with the declarant's details, to allow for adequate preparation. The argument that the indictment's murder and conspiracy counts were flawed due to a lack of specification regarding the type of murder charged is rejected, as the counts clearly indicate intentional murder. Furthermore, Orena's claim, adopting arguments from Pasquale Amato regarding the improper consideration of information in the district court's joint sentencing, is also rejected, consistent with prior rulings.