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United States v. Salamone

filed: March 6, 1989; As Amended May 8, 1989.

UNITED STATES OF AMERICA, APPELLEE
v.
SALVATORE SALAMONE, APPELLANT



On Appeal from the United States District Court for the Middle District of Pennsylvania, Criminal No. 84-00150.

Gibbons, Chief Judge, and Seitz and Greenberg, Circuit Judges.

Author: Greenberg

Opinion OF THE COURT

GREENBERG, Circuit Judge.

BACKGROUND

This matter is before this court on appeal by Salvatore Salamone from a conviction on certain firearms offenses in the United States District Court for the Middle District of Pennsylvania. The appeal involves application of double jeopardy and collateral estoppel principles as a result of Salamone's earlier prosecution in the United States District Court for the Southern District of New York. Thus, we must describe the proceedings in both courts.

On April 9, 1984, Salamone, along with numerous others, was indicted in the Southern District of New York on drug trafficking conspiracy and racketeering (RICO) counts, as well as conspiracy and substantive money laundering counts, in United States v. Badalamenti, Crim. No. 84-236 (S.D.N.Y. 1984) -- the infamous "Pizza Connection" case. Salamone's codefendants included Salvatore Greco, Gaetano Mazzara, Francesco Castronovo, Giuseppe Ganci and Salamone's brother, Filippo Salamone.*fn1 The counts significant to us are one and sixteen. Count one charged Salamone, among others, with conspiring to import and distribute narcotics, in violation of various sections of Titles 18 and 21 of the United States Code. Count one alleged that in furtherance of the conspiracy, Salamone had ". . . obtained, possessed, stored, concealed, transported and otherwise utilized firearms. . . ." It was charged that as overt acts in furtherance of the conspiracy, Salamone purchased a number of semi-automatic handguns, colloquially known as "MACs," using the fictitious names James Hamilton and Randall Thomas. Badalamenti indictment, paras. 533-35. The indictment further alleged as overt acts Salamone's receipt of seven Colt semi-automatic rifles, Model AR-15; three Uzi-A model semi-automatic rifles; and a Ruger semi-automatic rifle. Badalamenti indictment, paras. 531-32. Count sixteen charged that Salamone and various others participated in a racketeering enterprise; that they were members of an organization known as "La Cosa Nostra" or "the Mafia," the purpose of which was enrichment from narcotics trafficking through the methods and means set forth in count one, in violation of various sections of Titles 18 and 21 of the United States Code. Significantly, Salamone was not charged in the Badalamenti indictment with any substantive firearms offenses.

Salamone was convicted by the New York jury on the money laundering conspiracy and substantive money laundering counts, but acquitted on counts one and sixteen -- the drug trafficking conspiracy and racketeering counts.*fn2

In October 1984, an indictment was returned against Salamone in the Middle District of Pennsylvania, charging him with a variety of firearms offenses in violation of federal law. Counts one and two set forth charges for the possession of an illegally made and unregistered machine gun, in violation of 26 U.S.C. §§ 5861(c) & (d). Count four charged Salamone with conspiring to violate the federal firearms laws by falsifying firearms transaction records, and counts five and six charged Salamone with the substantive crime of falsifying firearms transaction records, in violation of 18 U.S.C. § 371, 18 U.S.C. § 924(a) & 18 U.S.C. § 2.*fn3 More specifically, counts five and six charged Salamone with using the fictitious names of James M. Hamilton and Randall C. Thomas when purchasing a total of six MACs, and count four charged him with conspiring to do so with one Daniel Jenkins.

Salamone was convicted on the five foregoing counts, but his conviction was reversed on appeal because of error in the juror selection procedure. United States v. Salamone, 800 F.2d 1216 (3d Cir. 1986). Before his retrial, Salamone moved to dismiss the indictment or, alternatively, to prohibit the introduction of certain evidence at trial, asserting that his acquittal in New York barred the government from prosecuting him or introducing the evidence under principles of double jeopardy and/or collateral estoppel. In an opinion and order dated August 19, 1987, the district court denied his motion. A supplemental motion raising similar objections was denied on September 23, 1987.

At the ensuing trial, as the government notes, the evidence was broken down into two categories: evidence involving counts one and two, the machine gun counts, and evidence involving counts four through seven, the counts involving the purchasing of MACs in fictitious names. With respect to the former, the government sought to establish that Salamone bought a semi-automatic pistol at the Renco Home and Sport Center, Inc., in Bloomsburg, Pennsylvania, and thereafter converted it into a fully automatic weapon, or a machine gun, in violation of federal law. In support of its theory, the government introduced, inter alia, the testimony of Douglas Renninger, a Renco employee. Renninger testified that in 1981, Salamone purchased a semi-automatic weapon in his own name, signing the firearm transaction record required by federal law for any firearms transaction involving a licensed dealer,*fn4 as well as the state form required when purchasing a pistol. Tr. 73-76, 87-88. Renninger further testified that in 1983 Salamone brought the MAC, which had been converted into a fully-automatic weapon, back to Renco to have it fixed because it was not working properly, i.e., it was functioning as a fully-automatic weapon, and that Salamone explained that "the FBI was checking up on him." Tr. 89, 94-96, 103. Daniel Wolfe, another Renco employee, corroborated some of Renninger's testimony in this regard. Tr. 254-56.

Salamone, testifying on his own behalf, admitted that he bought the gun, but claimed that Daniel Jenkins, a Renco employee, had, in 1982, converted it into a fully-automatic weapon without his knowledge. Tr. 1131-34. Dissatisfied with the gun, Salamone brought it back to Renco, again testifying that he was unaware that the gun had been converted into an automatic weapon. Tr. 1154-55, 1227.

The government sought to establish, with respect to the charges involving the purchases of MACs using fictitious names, that Salamone had purchased six MACs using the false names James Hamilton and Randall Thomas, as well as conspiring with Daniel Jenkins to do so. The government introduced evidence, including testimony from both Renninger and Jenkins, that in 1982 Salamone ordered seven AR-15s, three Uzis and six MACs from Jenkins, paying him a deposit for the weapons. Tr. 107-26, 529-32. The AR-15s were replaced with CAR-15s, a somewhat different version of the gun, at the request of Salamone and his brother. Tr. 154-57, 536-38. The seven CAR-15s and the three Uzis were delivered to Salamone or his brother Filippo in June 1982, and Salamone signed the requisite federal forms in his own name as the buyer of each weapon. Tr. 533-46. Salamone also bought a Ruger or elephant gun in June 1982, again signing the federal form in his own name. Tr. 548-50.

In July 1982, after a shipment of MACs arrived at Renco, Jenkins brought the necessary federal forms, as well as the state forms required for pistols, to Sal's Place, a restaurant owned by Salamone. Tr. 554-55. Salamone told Jenkins that he did not want to fill out the forms in his own name and that if Jenkins did not go along with falsifying the forms he would not buy the weapons. Tr. 555, 658-60.*fn5 Jenkins agreed to the proposed falsifications and, along with Salamone, filled out both the state and federal forms using the phony names James M. Hamilton and Randall C. Thomas, as well as fictitious addresses and identifying characteristics. Tr. 555-64, 652-55, 660, 663-66, 669-72. Jenkins testified that the MACs ultimately were delivered to Salamone. Tr. 568-69. Renninger testified that when he sought to collect money due for the guns purchased by Salamone, including the MACs, Salamone did not deny buying the MACs, but only disputed the amount of money he owed, and made a payment to settle the account. Tr. 152-53.*fn6

The government also introduced testimony of FBI agents who, in executing search warrants, discovered some of the MACs bought in false names at three locations in New Jersey: Sal's Pizza (owned by Sal Greco, not appellant), a Nutley apartment, and Pizza Village. Tr. 720-46. The agents' testimony established that some of the guns for which Salamone had signed federal forms also were found at Sal's Pizza and the Nutley apartment. Id.

The government introduced evidence which it describes as connecting "various figures in the 'Pizza Connection' investigation to the site of the three searches" during which MACs were found. Brief at 13 n.11. This evidence consisted of testimony of FBI agents that individuals involved in the Pizza Connection investigation came and left the three sites. Tr. 747-83, 806-16. The government also introduced telephone toll records which it describes as showing "calls between Sal's Place [Salamone's restaurant], Sal's Pizza, and the other places searched and persons observed during the surveillance." Brief at 37; tr. 818-21. The government, though, never identified these individuals as being involved with La Cosa Nostra or the Mafia or with a drug conspiracy.

Salamone testified that he accepted delivery of the CAR-15s and Uzis, but did so on behalf of his brother, Filippo, and that he signed the federal forms believing them to be receipts. Tr. 1168-97. He further testified that he ordered the Ruger for Filippo and gave it to him. Tr. 1097-1100. Salamone flatly denied purchasing the MACs in false names, stating that he refused to buy the guns or sign the federal forms because the weapons were for his brother Filippo, not for himself. Tr. 1192-98. He testified that Filippo was the purchaser of the MACs. Tr. 1352, 1372.

With a number of qualitative exceptions to be discussed shortly, the government does not dispute that the challenged evidence in the instant case paralleled evidence submitted against Salamone in Badalamenti.*fn7

Salamone was convicted on counts one, two, four, five and six and was sentenced as follows: on counts one and two, to two concurrent four-year terms of imprisonment and a $5,000 fine on count one; and on counts four through six, to three consecutive four-year terms of imprisonment and three $5,000 fines, for a total of 16 years of imprisonment and fines of $20,000. Salamone then appealed the district court's denial of his pretrial motion, which is the appeal presently before us.

Discussion

In the seminal case Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the defendant was charged with robbing just one of a group of six poker players. At trial, the evidence unequivocally established that three or four robbers had stolen property from each one of the poker players; in dispute was whether the defendant had been one of the robbers. Defendant was ...


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