United States v. Louis Malpeso, AKA Bobo Robert Gallagher Joseph Amato

Citations: 115 F.3d 155; 47 Fed. R. Serv. 572; 1997 U.S. App. LEXIS 12800Docket: 979

Court: Court of Appeals for the Second Circuit; June 3, 1997; Federal Appellate Court

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Defendants Louis Malpeso, Robert Gallagher, and Joseph Amato were convicted in the United States District Court for the Eastern District of New York on various charges related to violent acts stemming from a power struggle within the Colombo organized crime family. Malpeso faced multiple convictions for violent acts and firearm offenses, resulting in a 95-year prison sentence, three years of supervised release, restitution of $24,962.35, and a $350 special assessment. Gallagher received a 39-year sentence for similar offenses, along with three years of supervised release, restitution of $13,740.00, and a $300 special assessment. Amato was convicted as an accessory after the fact to murder and for violating firearm laws, leading to a 211-month prison sentence, three years of supervised release, restitution of $11,222.35, a $50,000 fine, and a $100 special assessment.

The charges arose from violent conflicts between factions loyal to imprisoned boss Carmine Persico and acting boss Victor J. Orena during the Colombo war from 1991 to 1994. The defendants were implicated in two failed assassination attempts targeting members of the opposing faction, including the murder of a 17-year-old boy and the shooting of a 16-year-old bystander, as well as other violent plots against Persico faction members.

Charges against the defendants were substantiated mainly through the testimony of accomplice witness Christopher Liberatore, who participated in violent incidents with them. His accounts of the defendants' involvement in the Colombo war were supported by recorded conversations, law enforcement surveillance, seized evidence, and corroborative testimony from his father, Anthony Liberatore, another accomplice.

In late 1991, members of the Orena faction, which included C. Liberatore as a non-member associate, held meetings at 'Cafe on N,' a venue linked to Orena loyalists. Tensions escalated after John Rosatti, an Orena supporter, sought revenge against Gregory Scarpa, a Persico faction member. Following unsuccessful attempts on Scarpa's life, the Orena faction issued a standing order to kill Persico loyalists.

On December 8, 1991, in retaliation for the murder of Orena associate Vincent Fusaro, a plan was devised by Orena members, including Malpeso and Amato, to kill Frank Guerra and Anthony Ferrara. They formed a hit team, but after a series of failed attempts to locate their targets, they encountered a black Lincoln, which they suspected contained enemies. Although Malpeso ordered C. Liberatore to shoot the Lincoln's occupants, he refused. The hit team disbanded afterward.

Following the disbandment, Malpeso learned that his sons had been shot and instructed C. Liberatore to find and kill Guerra and Ferrara. C. Liberatore then contacted his father, A. Liberatore, who agreed to assist in carrying out these orders.

Two individuals, the Liberatores, conducted multiple trips to various locations, ultimately stopping at a bagel store where C. Liberatore, after ensuring the coast was clear, inquired about Ferrara and Guerra. Upon being questioned by store clerk Speranza, C. Liberatore drew a gun and shot Speranza several times before fleeing. Afterward, C. Liberatore cleaned himself at home, while A. Liberatore abandoned their vehicle and informed his wife to report it stolen. Subsequently, they visited an off-track gambling site run by Malpeso, where they recounted the shooting incident to Malpeso and others. Patty Amato instructed Amato to hide C. Liberatore from law enforcement, leading to arrangements for C. Liberatore to stay at an associate's apartment.

Following the shooting, C. Liberatore remained affiliated with Malpeso, who was part of Amato's crew involved in targeting the rival Persico faction. C. Liberatore testified about several attempts to murder members of this faction, including an incident on June 4, 1992, known as the Avenue P shooting. During this event, C. Liberatore, along with Gallagher and others, engaged in a shooting spree aimed at Persico loyalists, resulting in serious injury to bystander Daniel Norden. This incident was corroborated by eyewitness accounts, and afterward, the group decided to dispose of their firearms.

C. Liberatore disposed of his gun in a storm sewer. On December 8, 1993, multiple indictments were issued against members of the Orena faction, including charges of conspiracy to murder members of the rival Persico faction amid the Colombo war. The primary indictment, known as the 'Malpeso case,' charged Malpeso, A. Liberatore, and C. Liberatore with conspiracy to murder Persico faction members and the murder of Speranza. C. Liberatore faced additional charges for involvement in the Avenue P shooting. Another indictment from the same date charged Amato and his associates with conspiracy to murder, loansharking, gambling, and firearm offenses related to the conspiracy (the 'Amato case').

A superseding indictment in the Malpeso case on September 28, 1994, added Amato and Gallagher as defendants. Amato sought to sever his case from Malpeso's and consolidate charges, but the court denied this request, affirming that the charges stemmed from distinct events. In April 1995, C. Liberatore expressed willingness to cooperate with the government, ultimately pleading guilty and becoming a cooperating witness, alongside A. Liberatore, who also entered a cooperation agreement.

A final superseding indictment on May 24, 1995, included ten counts against Malpeso and Gallagher, with Count One alleging conspiracy to murder the Persico faction to enhance their positions within the Colombo Family, violating 18 U.S.C. 1959(a)(5). Count Two charged Malpeso with the murder of Speranza, and Count Three involved Amato obstructing justice concerning the murder. Counts Four to Six charged Malpeso and Gallagher with various assaults and attempted murder related to maintaining their positions in the organization. Counts Seven to Nine involved firearm charges linked to the violent crimes outlined in the previous counts.

Count Ten charged Malpeso with being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Following a jury trial, Malpeso was convicted on multiple counts, including four counts related to 1959 violations and two counts under 924(c)(1), in addition to the felon in possession charge, resulting in a 95-year prison sentence. Co-defendants Gallagher and Amato received sentences of 39 years and 211 months, respectively, for their convictions. Malpeso's appeal challenges the exclusion of evidence concerning alleged information leaks from FBI agent R. Lindley DeVecchio to informant Scarpa, claiming it would demonstrate a lack of his intent to violate 18 U.S.C. 1959, as he was purportedly acting in self-defense rather than to enhance his position in the Colombo Family. The court's ruling on the admissibility of this evidence was reviewed for abuse of discretion, which was not found. The court deemed the evidence irrelevant to the defense's argument and noted that any potential relevance was overshadowed by the risk of unfair prejudice. It concluded that the evidence did not substantiate Malpeso's claims about the Colombo war being a coup instead of a true conflict.

The court expressed significant difficulty in establishing the relevance of the Scarpa/DeVecchio evidence, suggesting that it did not overcome the substantial potential for prejudice as outlined in Federal Rule of Evidence 403. The judge reviewed trial transcripts and counsel arguments, concluding that the evidence was minimally relevant to the crimes charged. Malpeso's claim that Scarpa's perceived immunity from prosecution would affect his behavior lacked support, as there was no evidence that Orena loyalists, including Malpeso, were aware of Scarpa's connection to law enforcement. Even if the evidence held some marginal relevance, the risk of unfair prejudice and distraction from the defendants' wrongdoing outweighed its probative value. The court noted that admitting such evidence could mislead the jury and delay the trial. Additionally, differing conclusions from other district courts regarding the admissibility of this evidence did not indicate an abuse of discretion by the court, which had thoroughly assessed the relevance and potential prejudicial effects.

Amato contends that evidence was insufficient to convict him as an accessory after the fact to homicide under 18 U.S.C. 1959(a)(1) related to the murder of Speranza, arguing that Speranza was an innocent victim and that the murder did not serve to maintain or enhance C. Liberatore's position within a racketeering enterprise. The court rejected this argument, emphasizing that an appellant faces a heavy burden in challenging evidence sufficiency, and that evidence must be viewed favorably to the government. The court concluded that the evidence allowed a rational juror to infer that C. Liberatore's actions constituted murder aimed at maintaining his status in the Orena faction of the Colombo Family. The court noted that the motive requirement under 18 U.S.C. 1959 is satisfied if a jury could infer that the crime was expected due to the defendant's membership in the enterprise. Despite Speranza being an unintended victim, the court stated that his murder occurred in the context of Liberatore's plot to kill intended targets, as evidenced by Liberatore’s actions in the bagel store. The circumstances indicated that Liberatore’s inquiry about his targets and subsequent shooting of Speranza were part of his violent conduct driven by the objectives of the Orena faction. Thus, the court affirmed that the evidence was sufficient to support the conviction.

Amato contends that the ruling in United States v. Thai indicates insufficient evidence for his case; however, this claim is rejected as the circumstances differ significantly. In Thai, the evidence suggested a profit-driven crime with no indication of organized crime motives, while in Amato's case, evidence demonstrated that the murder of Speranza was part of a deliberate attack to establish dominance over a rival faction, thereby supporting a violation of 18 U.S.C. 1959(a)(1). Consequently, there was adequate evidence to convict Amato as an accessory after the fact to a federal offense.

Gallagher raises several issues regarding jury instructions on the 18 U.S.C. 924(c)(1) counts. He argues that the definition of "use and carry" did not align with the precedent set in Bailey v. United States, claims the court failed to provide a limiting instruction concerning weapons seized from co-conspirators, and asserts errors in instructing the jury on aiding and abetting liability. 

Regarding the 'use' instruction, Gallagher argues it inadequately defined "active employment" of a firearm, conflating "use" and "carry." Despite this, the court determines any error was harmless, as the jury was properly instructed on the necessary elements for a firearm count, including that the government did not need to prove the weapon was fired. As no objections were raised at trial, the court reviews for plain error, requiring the government to demonstrate that any error did not affect Gallagher's substantial rights. Since Bailey was decided after the trial, a modified plain error standard applies, placing the burden on the government to prove the error's lack of impact on Gallagher's rights.

In Bailey, the Supreme Court defined 'use' under 924(c)(1) as requiring 'active employment' of a firearm, which includes actions such as brandishing, displaying, or firing a gun. Merely possessing a firearm without active employment does not meet this standard. The court emphasized that jury instructions should reflect this definition, but in the current case, the instructions failed to clarify that 'use' meant 'active employment,' leading to a potential conflation with 'carry.' Despite this, the instructions did not suggest that mere possession or proximity to a firearm constituted 'use,' aligning with the Supreme Court's concerns in Bailey. The district court provided minimal explanation for 'use,' likely leading the jury to interpret it in its ordinary sense, implying active utilization rather than mere possession. Although there may have been an instructional error, it was deemed harmless given the overwhelming evidence of Gallagher's active involvement in a violent crime involving firearms. Gallagher was convicted of two counts of assault and one count of attempted murder, with evidence clearly linking him to the active use of firearms. Regarding the jury charge, Gallagher argued that it lacked limiting instructions concerning firearms associated with co-conspirators, which could mislead the jury into convicting him based on mere possession of those guns. However, the court found no merit in this argument. Gallagher had requested limiting instructions at the charging conference but later seemed to concede that such instructions were not necessary. Ultimately, he did not contest the legal relevance of the firearms to the charges but rather their factual connection to him.

Prejudice resulting from the lack of a limiting instruction in the case is deemed minimal due to substantial evidence linking the defendants to firearm use during the Colombo war. Specific instances include Gallagher using a gun in the Avenue P shooting and Malpeso instructing C. Liberatore to shoot, as well as their involvement in attempts on the lives of Robert Tarantola and Joseph Monteleone, both with armed accomplices. Consequently, even if the absence of a limiting instruction was erroneous, it did not cause prejudice.

Gallagher's claim regarding the jury instruction on aiding and abetting and Pinkerton liability for 924(c) violations is dismissed as frivolous, as precedents affirm the validity of these theories in similar cases, and Gallagher fails to provide compelling reasons for differentiation.

Regarding the constitutionality of U.S.S.G. 1B1.2(d), comment. n.5), Malpeso contends it allows the sentencing court to overstep jury roles by deciding which offenses were proven beyond a reasonable doubt. The guideline stipulates that a conspiracy conviction involving multiple offenses is treated as separate counts for each offense. Note 5 emphasizes careful application when the verdict does not specify the object offenses. The district court found sufficient basis to conclude that Malpeso conspired to commit specific murders, and this constitutional challenge will be reviewed de novo. While the Tenth Circuit has ruled the guideline unconstitutional, the Third and Seventh Circuits have upheld its constitutionality.

In the legal analysis, the case of *Bush* is referenced, where the defendant pleaded guilty to conspiracy involving either cocaine base or powder. The district court sentenced based on crack cocaine, which has a higher offense level. The Tenth Circuit ruled that in cases with multiple objects of conspiracy, sentencing must be based on the object with the lowest offense level. This decision was deemed unconstitutional under the Fifth and Sixth Amendments as it removed the determination of the conspiracy's object from the jury. However, the current case, involving Malpeso's conviction for conspiracy to murder under 18 U.S.C. § 1959(a)(5), is distinguished from *Bush*. The court confirmed that the specific crime and statutory maximum are clear, with murders being the objects of the conspiracy. Citing *Griffin v. United States*, the court stated that the application of U.S.S.G. § 1B1.2(d), comment n.5, is valid and does not violate Sixth Amendment rights, as the jury's verdict on the conspiracy count remains intact regardless of evidence sufficiency related to individual objects. The sentencing court's role in determining relevant facts is reaffirmed, allowing for a preponderance of the evidence standard, thus upholding the constitutionality of U.S.S.G. § 1B1.2(d), comment n.5.

Gallagher contests a four-point increase in his offense level stemming from injuries sustained by Norden, a victim in a shooting incident, arguing that it was inappropriate since the conspiracy was specifically to murder McLaughlin. The district court, however, justified the increase under U.S.S.G. 2A2.1(b)(1)(A), which mandates an elevation when a victim suffers permanent or life-threatening injuries. The court explained that injuries to Norden should be factored into the conspiracy charge involving McLaughlin, citing the principle of transference in common law. Additionally, the court suggested the point increase could also be viewed as an upward departure for reasons not fully encompassed by the Sentencing Guidelines, specifically under U.S.S.G. 5K2.0, allowing for consideration of aggravating circumstances. The review of the district court's decision follows a three-part analysis assessing the relevance of the factor to the offense, factual support for the departure, and the clarity of the court's rationale for the extent of the increase. The decision stands as an appropriate upward departure given the context of Gallagher's actions.

Guidelines such as 2A2.1 focus on the injury to a single intended victim and do not consider injuries to bystanders or multiple victims. Courts, including those in United States v. Carpenter and United States v. Moore, have permitted upward departures in sentencing due to aggravating circumstances involving multiple victims or third-party injuries under U.S.S.G. 5K2.0. Conversely, in United States v. Molina, the Second Circuit recognized that "any victim" encompasses bystanders harmed during a bank robbery, while the Sixth Circuit in United States v. Muhammad emphasized that the bank itself is the victim, arguing against injury increases for the institution. This distinction in defining "victim" is justified based on offense types.

In the current case, "the victim" in 2A2.1(b)(1) specifically refers to the intended victim of attempted murder, excluding bystanders like Norden. However, since U.S.S.G. 2A2.1 allows for upward departures for substantial risks or actual injuries to multiple persons, the district court rightly considered Norden’s life-threatening injuries as grounds for an upward departure from Gallagher's offense level. The court's findings supported that Norden's injuries were directly related to the attempted murder, and the rationale for the magnitude of departure aligned with guidelines that account for injury to the intended victim. Thus, the district court's decision to apply a four-level upward departure was deemed appropriate.

Additionally, Gallagher contested his convictions under two counts of 924(c)(1) for using or carrying a gun, arguing they stemmed from a single criminal act.

Gallagher's conviction for a violation of 924(c) (Count Nine) stemmed from his involvement in the Avenue P shooting (Counts Four to Six), while his first 924(c) violation (Count Seven) was linked to a conspiracy to murder members of the Persico faction (Count One). Gallagher contended that the jury might have improperly relied on the Avenue P shooting for both 924(c) convictions, thus arguing that this dual conviction was unlawful. The court rejected his argument, stating that the evidence clearly showed Gallagher carried firearms on multiple occasions throughout the conspiracy, indicating that the jury likely did not base both convictions solely on the Avenue P incident. Gallagher had the responsibility to challenge any perceived insufficiency of evidence regarding his firearm possession before the jury deliberated. The court further noted that it need not address whether two offenses occurring simultaneously but with distinct elements could justify consecutive 924(c) sentences, citing case law that supports separate convictions for different underlying offenses arising from the same criminal episode. Ultimately, the court upheld Gallagher's two 924(c)(1) convictions and found the remaining arguments from the defendants to lack merit, affirming the district court's judgment.