On Appeal From the United States District Court For the District of New Jersey. (D.C. Crim. Action Nos. 89-00250-01 and 89-00250-02).
Before: Sloviter, Chief Judge, Stapleton and Lay,*fn* Circuit Judges
STAPLETON, Circuit Judge:
Louis Gatto, Sr. and Alan Grecco were found guilty by a jury of violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and other federal criminal statutes. Each was sentenced to sixty-five years in prison and appeals the judgments of conviction and sentence, which we will affirm. We write to address the claim that the district court erred in allowing a witness to testify and the prosecution to comment in closing argument about the allegedly threatening conduct during trial of Grecco and a courtroom spectator.*fn1
Gatto and Grecco were tried on charges that they conspired to violate RICO by agreeing to conduct the affairs of a faction of the Genovese Family of the Mafia through a pattern of racketeering activity involving the operation of an illegal sports gambling business and an illegal numbers gambling business. Six predicate acts were alleged to have formed the pattern of racketeering activity.*fn2 The Indictment also charged defendants with using interstate telephone facilities in aid of racketeering, in violation of 18 U.S.C. §§ 1952 and 2; interstate travel in aid of racketeering, in violation of 18 U.S.C. §§ 1952 and 2; and interstate transportation of gambling records, in violation of §§ 1953 and 2.
The jury found that all predicate acts had occurred as alleged*fn3 and convicted both defendants on all counts. The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231, and our jurisdiction rests on 28 U.S.C. § 1291. The following account of the facts views the evidence in the light most favorable to the government.
Gatto and Grecco allege that the district court erred in admitting certain testimony of government witness Robert Belli and in allowing the prosecutor to comment on this testimony during closing argument to the jury. The government called Robert Belli to testify about the extortionate takeover of a gambling business run by him and his brother, Arthur Belli. Robert testified that after Arthur went to jail, he and defendant Grecco ran the business. Grecco told him "things are going to be different," App. 2267, however, and shortly thereafter Robert's hot dog truck was blown up and he was beaten by two men with baseball bats. As a result, Robert surrendered the business. Robert also testified that Arthur Belli disappeared shortly after he was released from prison and began planning to return to the gambling business.
On cross, Robert Belli readily agreed with defense counsel's suggestion that the prosecution had paid him and pressured him to testify as he did and that the local police and prosecutors involved in the case were corrupt. On redirect, the prosecutor sought to show that Belli had become hostile to the government and accommodating to the defense because he had been intimidated. The prosecutor first questioned Belli about Frank Sesta, a.k.a. "Moe Brown." Belli stated that after defense investigators hounded him into meeting with defense counsel, Moe Brown took him to the meeting; that Brown had pressed him to let an associate drive him to a pretrial hearing but that he declined, instead taking a ride from a government investigator and asking that the associate's license plate be checked; that Brown took him to a job interview the day before he testified at trial; and that Brown had discussed the case with him more than once and had said to him "isn't it a shame about Little Al [Grecco] in this case," App. 2528-29.
The prosecutor then elicited testimony from Belli that Moe Brown had been in the courtroom while he testified, standing in the back directly in front of him, and that Brown had looked unhappy.*fn4 Defense counsel objected but stated no grounds. Later in the trial, the prosecution introduced evidence that Brown had been seen during surveillance near the Lodi Social Club, where Gatto and Grecco often met with associates, and had been seen talking with William Odierno, an original codefendant who worked in defendants' gambling business. The prosecution also introduced a tape of a conversation between Louis Gatto, Jr. (defendant Gatto's son) and Grecco, involving defendants' gambling business, in which Moe Brown was mentioned by name.*fn5
Following the questions about Moe Brown, the prosecutor examined Belli about Grecco. Belli testified that he feared Grecco and feared another beating. The prosecutor then asked Belli about three occasions during the trial when Grecco had looked at him. The first was before Belli testified, when Grecco passed by Belli in the courthouse hall. Defense counsel's objection at this point was overruled.*fn6 The second look came when Belli was in the back of the courtroom waiting to testify, and Grecco turned his chair ...