Court: Supreme Court of New Jersey; August 8, 2012; New Jersey; State Supreme Court
Judge Wefing delivered the court's opinion regarding defendant Aurelio Ray Cagno's 2004 conviction for racketeering conspiracy under New Jersey's RICO statute, N.J.S.A. 2C:41-1 to -6, which was enacted in response to the threat posed by organized crime. The appeal raises several issues: the timeliness of the prosecution under the five-year statute of limitations (N.J.S.A. 2C:1-6), the admissibility of evidence presented at trial to demonstrate the ongoing nature of the conspiracy, potential prejudice affecting the murder conviction obtained in the same trial, jury instructions, and sentencing concerns. The court reviewed the arguments and the record and found no grounds for reversing the convictions or sentence, thus affirming the trial court's decisions.
The appeal involved the specific structure of the organized crime group, "La Cosa Nostra," particularly its New Jersey faction, the Colombo family. Evidence was presented regarding the hierarchical organization of La Cosa Nostra, which includes members known as "soldiers," organized into "crews" led by "capos," with a "boss," "underboss," and "consiglieri" at the top. Membership is acquired through loyalty, sponsorship by a captain, and a ceremonial oath that enforces a code of silence, with severe consequences for betrayal. The court's findings emphasize the defined structure of the criminal enterprise and its relevance to the case.
The State's case against Aurelio Ray Cagno centers on his affiliation with the New Jersey crew of the Colombo family of La Cosa Nostra, alongside his brother, Rocco Cagno, who served as the principal witness. Both brothers were involved with La Cosa Nostra since at least the early 1970s, becoming "made" members in 1987. Rocco detailed the initiation ceremony, which involved a blood oath during a ritual led by James Randazzo, including a promise to commit murder if ordered.
In 1988, Rocco and Aurelio were tasked with the murder of Jimmy Angellino, an acting consigliere. The murder took place at Rocco's home, where they ambushed Angellino upon his arrival. Following the murder, Rocco and Aurelio cleaned the scene and disposed of evidence. Rocco also testified about a subsequent internal conflict within the Colombo family, where Aurelio communicated orders from Carmine Sessa to replace the steps where Angellino was killed to eliminate potential forensic evidence. Rocco acknowledged his involvement in multiple homicides before and after becoming a "made" member, including a prior murder for Randazzo related to a loan shark operation.
In 1992, while Randazzo was imprisoned, Dominic Prosperi began managing his loan-sharking operations. The FBI seized Randazzo's loan-sharking notebook during a search of Joseph Prosperi's home, which upset Randazzo upon learning this from Rocco during a jail visit. Randazzo expressed fear of severe repercussions for the notebook's seizure, indicating he felt "dead," which raised Rocco's concerns about Randazzo potentially breaking the code of silence and implicating him in murders. Rocco, along with defendant and Salvatore Lombardino ("Tutti"), discussed the necessity of killing Randazzo over several months to prevent him from turning against them, especially after Randazzo began collecting debts and planned to relocate.
Despite knowing they should seek approval from a superior in La Cosa Nostra for such actions, they refrained due to fears for their safety. They ultimately decided to kill Randazzo, with the defendant designated as the shooter. Luring Randazzo under the pretense of a meeting with Sal Profaci from the Colombo family, they met him on May 17, 1993, in a motel parking lot. A struggle ensued between Randazzo and the defendant, resulting in multiple gunshots fired into Randazzo's car. Afterward, Rocco stated the defendant believed Randazzo was dead after shooting him in the head. Rocco disposed of the firearms used in the incident, and law enforcement later found bullet fragments and evidence related to the FBI search warrant in Randazzo's car.
Several witnesses to a shooting noted the license plate of Lombardino's car, leading police to search his home, where they found .38 caliber ammunition. Records indicated numerous calls between Rocco’s and Lombardino’s residences on the morning of the shooting. A search of the defendant’s house yielded two slips of paper with names and a term "Tutti." Police recovered three discarded .38 caliber handguns linked to Randazzo's murder, one with discharged shell casings. Lombardino's abandoned vehicle was later found, showing traces of Randazzo's blood and cigarette butts with DNA matching the defendant, excluding 91% of the Caucasian population, including Lombardino and Rocco. Line-ups conducted revealed that witnesses identified Lombardino but not the defendant. Rocco, seeking to cooperate with law enforcement, was indicted alongside Lombardino in connection with the murder of Angellino. A subsequent federal indictment against Lombardino for Randazzo's murder occurred in February 1994. During a covertly recorded meeting in January 1994, Lombardino discussed alibi strategies regarding Randazzo's blood in his car. Rocco entered a plea agreement in March 1994, pleading guilty to conspiracy involving racketeering and agreeing to cooperate with investigations, while expressing reluctance to testify against his brother, Aurelio Cagno, implicated in both murders. The government committed to avoid calling Rocco as a witness against his brother unless absolutely necessary for justice, in which case he would have to testify truthfully about Aurelio's involvement.
Lombardino was tried for the 1993 murder of Randazzo, leading to a mistrial in his first trial. In October 1994, during his second trial, Lombardino pled guilty to conspiracy to commit murder related to racketeering, a weapons offense, and being an accessory after the fact, facing a maximum of seventeen years in prison. His plea agreement stipulated that if he testified about Randazzo's murder, the government could reinstate a charge of murder against him, which carried a life sentence. Lombardino was sentenced to seventeen years.
In November 1995, the defendant pled guilty to racketeering conspiracy, admitting to participating in a conspiracy to murder Angellino but refraining from naming other participants. He received a five-year sentence. The government continued to investigate the Randazzo murder, summoning Lombardino before a federal grand jury in May 1998. He was granted immunity but refused to answer questions about the defendant, resulting in a contempt finding.
In December 1998, Rocco, who had previously testified against Lombardino, indicated he was willing to testify against the defendant, leading to a two-count indictment against the defendant in February 2000. The first count charged him with racketeering conspiracy, naming Lombardino as an unindicted co-conspirator, detailing the structure and purposes of the Colombo crime family, and outlining various criminal activities including murder and extortion. The second count charged him with Randazzo's murder. The trial for these charges commenced in May 2002.
Lombardino was summoned as a witness in a trial on June 13, 2002, but invoked his Fifth Amendment right against self-incrimination, refusing to answer questions. The trial court granted him immunity at the prosecutor's request; however, he continued to refuse to testify and was held in contempt. He was called again on June 18, 2002, and similarly refused to answer questions. Meanwhile, Rocco testified against his brother, but the jury could not reach a verdict, resulting in a mistrial on June 28, 2002. The government then pursued a second trial after obtaining a superseding indictment on January 2, 2003, which included charges of first-degree racketeering conspiracy and murder of Randazzo, again naming Lombardino as an unindicted co-conspirator.
The superseding indictment specified five overt acts related to the conspiracy, including the murders and Lombardino's refusals to testify. Notably, it did not include earlier refusals from May and October 1998. The second trial began in January 2004, with Rocco once more testifying against his brother. Lombardino was called again but again invoked his Fifth Amendment right, was granted immunity, and still refused to answer, leading to another contempt ruling. Two witnesses from the first trial testified about Lombardino's refusals during the second trial. The jury found the defendant guilty on March 5, 2004. He was sentenced to life for murder, with a thirty-year parole ineligibility, and a consecutive twenty-year sentence for racketeering conspiracy, resulting in a total of life plus twenty years with forty years of parole ineligibility. The Appellate Division affirmed the convictions and sentence. The defendant's petition for certification was granted with limitations, while his pro se issues were denied.
Defendant claims the State did not demonstrate any overt act supporting the conspiracy charge beyond a conversation on January 20, 1994, which he argues is outside the five-year statute of limitations, rendering his prosecution time-barred. He further asserts that his guilty plea to racketeering conspiracy on November 27, 1995, in federal court terminated the conspiracy and initiated the limitations period. Defendant argues that the evidence from the racketeering charge influenced his trial for the murder of Randazzo, tainting the verdict and warranting the conviction's dismissal. He also contends the trial court provided inadequate jury instructions regarding both the racketeering and murder charges, particularly failing to include lesser-included offenses. Additionally, he claims a violation of his Sixth Amendment rights due to the admission of evidence concerning Lombardino's refusal to testify at his first trial. Lastly, he argues that his sentence for racketeering conspiracy is illegal because he should have received a second-degree sentence instead of one in the first-degree range. The State rebuts these arguments, asserting that evidence showed the conspiracy continued beyond January 20, 1994, and that the defendant's plea did not terminate the conspiracy. The State defends the trial court's instructions as correct, denies any rights violations, and maintains that the conviction was properly classified as first-degree racketeering.
The review of these issues is based on legal interpretations rather than factual disputes, warranting a de novo review standard. The court's primary aim when reviewing statutes is to discern legislative intent, starting with the statute's plain language, and is guided by the directive for liberal construction to serve the remedial purposes of the relevant chapter.
Defendant contends the trial court erred by denying his motions to dismiss both the 2000 and 2003 indictments as time-barred. His first argument focuses on the 2000 indictment, asserting that the government failed to demonstrate the conspiracy continued beyond a January 20, 1994, conversation between Rocco and Lombardino, warranting dismissal due to untimeliness. The second argument claims the January 2, 2003, superseding indictment is also time-barred, lacking proof of any conspiracy acts within five years prior to the indictment. The court rejects these arguments, clarifying that the defendant misunderstands RICO conspiracy charges and the distinction from RICO substantive charges. Under New Jersey law, the statute of limitations acts as an absolute bar to prosecution, requiring that offenses be charged within five years of their commission. The statute defines the commission of an offense as occurring when all elements are present or when a prohibited course of conduct ends. Prosecution commencement is marked by the finding of an indictment, and the limitation period does not run when a related prosecution is pending. The inherently secretive nature of conspiracies complicates determining the limitations period's start and end.
At the defendant's second trial, the jury was instructed that the State must prove the RICO conspiracy continued at least until January 2, 1998, which is five years prior to the superseding indictment. This date was not contested by either party, and the Appellate Division also analyzed the statute of limitations based on this date. However, this Court sought supplemental briefing on whether the cut-off date should instead be February 24, 2000, the date of the original indictment, due to the tolling provision in N.J.S.A. 2C:1-6(e). The original indictment, which was not dismissed before the superseding indictment, tolled the limitation period while pending. After reviewing the supplemental arguments, the Court determined that the tolling provision negated the basis of the defendant's argument, but fairness necessitated not altering the premise established during the trial or Appellate Division stages, which relied on January 2, 2003, as the operative date. The Court concluded that, regardless of the date selected, the prosecution was not barred by the statute of limitations.
Additionally, in evaluating the defendant's claims, the Court referenced federal cases addressing similar limitations issues. While the defendant argued that New Jersey is not bound by these federal cases, New Jersey's RICO statute is modeled after the federal statute, making it appropriate to draw guidance from federal RICO jurisprudence. The Court emphasized that RICO charges involve ongoing patterns of racketeering activity and are distinct from mere repeated offenses. The significance of an indictment for a RICO conspiracy, as opposed to other conspiracies, was highlighted, noting that it involves an agreement to conduct the affairs of an enterprise through a pattern of racketeering. A cited federal case upheld a RICO conspiracy conviction despite the jury finding only two overt acts occurring beyond the five-year limitation, reinforcing the Court's rationale in the current matter.
The defendant argues that the statute of limitations for conspiracy, as defined by N.J.S.A 2C:1-6(c), should begin when the conspiracy's conduct ends, claiming there was no evidence of overt acts beyond a January 1994 conversation. He characterizes the conspiracy as aimed at specific crimes, which would be valid if charged under N.J.S.A. 2C:5-2. However, he was charged under RICO conspiracy (N.J.S.A. 2C:41-2), which involves a broader scope regarding participation in a pattern of racketeering activities linked to the Colombo crime family. The ongoing nature of a RICO enterprise means the statute of limitations does not start until the conspiracy's objectives are fulfilled or abandoned.
The Appellate Division cited United States v. Yannotti, where a similar argument was rejected, emphasizing that proof of agreement to participate in a RICO conspiracy does not require specific agreement to commit predicate acts. Instead, a defendant only needs to understand and agree to the general criminal objectives. Although a substantive RICO charge requires predicate acts to fall within the five-year limitation, a RICO conspiracy is complete only when its purposes are achieved or abandoned.
The government is presumed to have established a continuous conspiracy until proven otherwise by the defendant, which the defendant claims infringes on his Fourteenth Amendment rights by shifting the burden of proof. However, the review indicates that it is unnecessary to decide on the presumption's applicability in New Jersey law. The State was not required to provide direct evidence of an overt act occurring after January 1994, as other trial evidence suggested the enterprise continued beyond that date.
To establish the existence of a RICO conspiracy within the relevant time frame, the court evaluated whether the totality of the evidence allowed a reasonable jury to conclude that the conspiracy persisted into the limitations period. The enterprise, identified as the New Jersey crew of the Colombo crime family, extended beyond the Cagno brothers, Lombardino, and Randazzo. Expert testimony from William Newsome detailed the structure of La Cosa Nostra, particularly the lifelong membership of individuals once initiated.
Testimony revealed ongoing interactions among crew members and underscored the long-standing nature of the enterprise. For instance, Rocco testified about planning a murder with Lombardino, who was nearing his fortieth anniversary as a made member, suggesting the enterprise’s continuity past January 20, 1994. Rocco, who entered the federal witness protection program after agreeing to cooperate with authorities, indicated that he would be killed if found by any made member, further reinforcing the notion of an enduring organization.
Evidence, including discussions about future meetings to coordinate alibis, indicated that the enterprise was still active. Jurors were permitted to draw logical inferences from circumstantial evidence, which is often how conspiracy is proven given the secretive nature of such conduct. The trial court instructed the jury that to convict the defendant of racketeering conspiracy, they must find beyond a reasonable doubt that the conspiracy did not end before January 2, 1998. This required evidence of an overt act supporting the conspiracy's continuation after that date.
The Court affirmed that the burden of proof remained on the State throughout the trial, clarifying that the defendant was not required to prove the end of the conspiracy. The jury appeared to understand this essential element. The defendant's claim that his November 1995 guilty plea terminated his conspiracy involvement was rejected. Under N.J.S.A. 2C:5-2(f)(3), conspiracy can only be terminated through clear communication of abandonment to co-conspirators or law enforcement, neither of which the defendant did. He did not inform other members of the Colombo crime family of his abandonment nor did he provide information to law enforcement regarding the conspiracy during his plea, focusing only on his individual acts. The distinction between a RICO conspiracy and a standard conspiracy was reiterated, emphasizing that the ongoing nature of a RICO conspiracy meant the guilty plea did not equate to abandonment of the conspiracy.
The defendant's argument that the racketeering conspiracy charge should be dismissed due to the statute of limitations was also dismissed. He claimed that the evidence presented was so prejudicial that it hindered the jury's ability to deliberate fairly on the murder charge. However, the State countered that the authority he cited had been reversed and maintained that the prosecution was timely. The State's case for the murder of Randazzo was closely linked to the racketeering conspiracy, as it involved motives related to the conspiracy's secrecy.
Finally, the defendant challenged the trial court's jury instructions on racketeering conspiracy, emphasizing the necessity for clear and understandable jury instructions for a fair trial. The Court noted that any alleged errors in the jury charge must be considered in the context of the entire charge, distinguishing between legally incorrect instructions and those that could be improved.
Defendant claims the trial court erred in instructing the jury regarding the necessity to find that the racketeering conspiracy did not terminate before January 2, 1998, and suggested that referencing Lombardino’s refusal to testify in 2002 as part of the conspiracy allowed for convictions based on acts occurring after the statute of limitations. This argument is viewed as a challenge to the timeliness of prosecution, which was deemed timely, and the jury instructions correctly reflected the law. A conspirator is accountable for co-conspirators' actions, even without awareness of them, under N.J.S.A. 2C:2-6(b).
Defendant requested the trial court to clarify that an overt act must further the conspiracy's main objective, but this request was denied, which the court found appropriate since the charges were broader than specific predicate acts. Additionally, defendant contended that the jury instructions conflated the defenses of termination and abandonment under N.J.S.A. 2C:5-2(f). The court found that the instructions adequately conveyed the concept of termination without causing confusion, and any potential misunderstanding was not likely to result in an unjust outcome.
Defendant also argued that the instructions incorrectly placed the burden on him to prove no acts occurred within the five-year limit. However, the court clarified that the jury was required to determine whether an overt act occurred or if the conspiracy remained active after the specified date, without imposing any evidential burden on the defendant. Lastly, defendant claimed the trial court erred by not requiring the jury to unanimously agree on two or more specific acts of racketeering. The court noted that a general instruction on unanimity typically suffices, as jurors must significantly agree on the defendant's actions to determine guilt or innocence.
A genuine possibility of jury confusion may arise when different jurors conclude that a defendant committed conceptually distinct acts, as discussed in State v. Parker. The Court identified situations where the general instruction for a unanimous verdict may be inadequate, including: (1) a single crime can be proven through different theories with varied evidence, risking non-unanimity in juror agreement; (2) complex underlying facts; (3) contradictory or only marginally related allegations; (4) discrepancies between the indictment and trial evidence; and (5) strong evidence of jury confusion. In cases presenting a risk of fragmented verdicts, a specific unanimity instruction must be provided upon request.
Applying Parker's two-prong test, the first prong is met as all allegations against the defendant were related to his involvement with the Colombo family's New Jersey crew and were not contradictory. The second prong is also satisfied, as the jury did not exhibit confusion, despite requesting a recharge. The jury was reminded of the need for a unanimous verdict and was asked whether a proven predicate act was murder. The requirement for unanimity was adequately addressed in the jury instructions, particularly regarding the RICO conspiracy charge, which did not necessitate finding a specific agreement on individual criminal acts.
Additionally, the defendant claimed that the trial court's allowance for the prosecution to highlight Lombardino's refusal to testify in a previous trial violated his confrontation rights under the Sixth Amendment. The Confrontation Clause prohibits the use of out-of-court testimonial hearsay that has not been subject to cross-examination.
The Confrontation Clause aims to ensure the reliability of testimonial evidence through cross-examination. A key consideration in Confrontation Clause violations is whether the evidence in question is "testimonial." Testimony, in a constitutional context, is a formal statement made to government officials, encompassing out-of-court statements like affidavits, depositions, and police interrogation statements.
In the case at hand, the defendant's second trial involved Lombardino, who had previously refused to testify. During the second trial, Lombardino again declined to answer questions despite being granted immunity and was held in contempt. The prosecution then called witnesses, Special Agent Stephen Kodak and Sheriff’s Officer Benjamin Rivera-Estrada, who testified regarding Lombardino’s behavior during the first trial. They described Lombardino's gestures towards the defendant, including smiles and a thumbs-up sign, which occurred while Lombardino was escorted in and out of the courtroom.
Crucially, the jury was not informed that these interactions took place during a prior trial; they referred to them as "prior proceedings." The testimonies from Kodak and Rivera-Estrada about Lombardino's non-responsiveness were deemed non-testimonial under the Sixth Amendment, as they did not consist of out-of-court statements from an unavailable declarant but rather observations of Lombardino’s conduct, which were subject to cross-examination.
Statements made by a co-conspirator in furtherance of a conspiracy are admissible as an exception to hearsay and do not violate the Confrontation Clause, as established in State v. Savage. The jury was tasked with interpreting the significance of exchanges between the defendant and Lombardino, with the State arguing for their relevance and the defendant downplaying it. Lombardino's refusal to testify was noted by the defense, which was limited by the terms of his plea agreement that allowed for reinstatement of a murder charge if he testified for the defendant. However, the prosecutor indicated that these restrictions were no longer in effect, allowing Lombardino to testify freely without fear of prosecution, thus negating any claims of unfairness regarding his potential testimony.
Additionally, the defendant contended that the trial court erred by not including conspiracy to commit murder as a lesser-included offense in the jury instructions. According to N.J.S.A. 2C:1-8(e), a court may only charge a jury on an included offense if there is a rational basis for a conviction of that offense. The court's interpretation of prior cases requires that not only must the offense be included, but there must also be evidence supporting a rational basis to acquit the defendant of the greater charge while convicting them of the lesser charge. In this case, while conspiracy to commit murder is recognized as a lesser-included offense of murder, the court concluded that there was no evidence to provide a rational basis for such an instruction, therefore affirming the trial court's decision.
A conspiracy to murder Randazzo was completed with his death, making the defendant legally accountable for the murder under N.J.S.A. 2C:2-6(b)(4), regardless of his physical presence at the scene. The State's case relied heavily on evidence of the defendant's involvement in the murder, leaving no rational basis for the jury to find him guilty of conspiracy without also convicting him of murder. The defendant contested his sentence, arguing that his conviction for racketeering conspiracy should be classified as a second-degree offense rather than a first-degree offense. He cited N.J.S.A. 2C:5-4, which states that conspiracy to commit a first-degree crime is a second-degree offense. However, the New Jersey RICO Act specifies that if racketeering activity involves violent crimes, such as murder, it elevates the conspiracy to a first-degree crime. The jury found that the defendant conspired to commit murder and was convicted of that murder, which involved the use of a firearm, satisfying the criteria for a first-degree conviction. The statutory language was deemed clear, negating the need for legislative history or extrinsic sources to interpret it. The defendant's argument regarding the exclusive indictment of racketeering conspiracy as a second-degree offense was rejected, as prior cases cited did not address the grading of the offenses in question, thus not influencing the current analysis.
Defendant failed to provide a compelling justification to deviate from the clear legislative language and established statutory construction principles. Consequently, the trial court's decision to uphold the indictment for first-degree racketeering conspiracy was appropriate, and the Appellate Division correctly affirmed the conviction and sentence. The court analyzed the entirety of the prosecution's evidence and concluded that a reasonable jury could find that the defendant's involvement in the RICO enterprise persisted into the relevant limitations period. The court clarified that it did not imply that a witness's silence could be used against the defendant. It criticized the dissenting opinion for treating the government’s evidence as isolated components rather than part of a cohesive whole. Ultimately, the court emphasized the importance of considering all evidence collectively, leading to the affirmation of the defendant's convictions and sentence.
