APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Crim. Nos. 99-cr-00363-1, 99-cr-00363-6, 99-cr-00363-2, 99-cr-00363-8, 99-cr-00363-9, 99-cr-00363-10, and 99-cr-00363-7 District Judge: The Honorable Herbert J. Hutton
Before: Barry, Fuentes, and Rosenn, Circuit Judges
The opinion of the court was delivered by: Barry, Circuit Judge
Beginning in June of 1999, a federal grand jury in the Eastern District of Pennsylvania returned a series of indictments culminating in January 2001 in the thirty-six count fourth superceding indictment on which the seven defendants who had not already pled guilty went to trial in March of 2001. In broad summary, the defendants were charged with Racketeer Influenced and Corrupt Organization (RICO) conspiracy and a RICO substantive count, with the Philadelphia La Cosa Nostra ("LCN") family alleged to be "The Enterprise." Murder and conspiracy to murder, violent crime in aid of racketeering, extortion and conspiracy to extort, the operation of illegal sports bookmaking businesses, and thefts of goods in interstate commerce were among the thirty-six racketeering acts and thirty-six counts charged.
On July 20, 2001, four months to the day on which trial commenced, all of the seven defendants were convicted of at least some of the charged offenses, including RICO and RICO conspiracy. However, all of the charges, be they racketeering acts or substantive counts, alleging anything to do with murder or violent crimes in aid of racketeering and many of the numerous extortion racketeering acts and counts were found by the jury to be wanting and resulted in findings of "not proven" or acquittals. The government, and there is no way to sugar-coat it, lost the heart of its case.
In December of 2001, the seven defendants were sentenced to terms of imprisonment ranging from 71 months to 168 months. They now appeal, raising pre-trial, trial, and sentencing issues that, because of the permutations and combinations specific to each of the defendants, total approximately thirty.
We will not address each of the issues raised but, rather, will focus on those issues which we believe particularly warrant discussion. Suffice it to say, however, that whether addressed or unaddressed, we have carefully considered each issue and, aside from one count and a sentencing enhancement as to one defendant, we will affirm the judgments of conviction and sentence.
We begin with some brief procedural background. Joseph Merlino was the sole defendant named on June 30, 1999 in the initial two count indictment that charged him with drug offenses. On December 15, 1999, the first superceding indictment was returned, adding Frank Gambino, Ralph Abbruzzi, Steven Frangipani, and Anthony Accardo as defendants, and expanding the charges against Merlino. The second superceding indictment, returned on March 30, 2000, substantially expanded the charges to approximately what they were when trial commenced, and added as defendants Steven Mazzone, George Borgesi, Martin Angelina, John Ciancaglini, Angelo Lutz, and Stephen Sharkey. The third superceding indictment, returned on October 11, 2000, made only minor changes, and the fourth superceding indictment, returned on January 24, 2001, essentially only deleted defendants Abbruzzi and Frangipani, who had earlier pled guilty to one count. The fourth superceding indictment, which hereinafter we will refer to as "the indictment," thus named nine defendants. Defendants Accardo and Sharkey entered pleas of guilty shortly before trial, also to one count, and trial commenced on March 20, 2001 against the remaining seven defendants, Messrs. Merlino, Mazzone, Gambino, Angelina, Ciancaglini, Lutz and Borgesi.
The 111 page indictment identifies defendants Merlino, Mazzone, Borgesi, Angelina, Ciancaglini, and Gambino as "made" members of the Philadelphia LCN family — "The Enterprise" — and Lutz and the four defendants who pled guilty as "associates" in the family, a family, it was alleged, that has been in "substantially continuous operation for a number of decades." The structure, hierarchy, and manner in which the enterprise operated was set forth in the indictment in detail that would be familiar to any viewer of "The Sopranos" or "The Godfather," including the priority of the sons of "made" members, the ritual initiation ceremonies, and the penalty of death for violating the "Code of Silence" — "Omerta" — with nicknames of coconspirators such as "Horsehead," "Snitch," and "Pete the Crumb" sprinkled throughout. The indictment described defendant Merlino as having risen through the ranks to be Acting Boss, defendant Mazzone to be Acting Underboss, and defendant Borgesi to be Acting Consigliere.
The thrust of the indictment, and there can be no mistake about it, was violence, be it actual, threatened, or otherwise intended. Count One, the RICO conspiracy count, listed, as noted, thirty-six racketeering acts ("RA's"). The first five, together with RA8, charged defendants Mazzone, Borgesi, Angelina, Ciancaglini, and Gambino with one or more of the following: conspiracy to murder John Stanfa; attempted murder of John Ciancaglini, Jr.; murder and conspiracy to murder William Veasey; murder and conspiracy to murder Joseph Sodano; murder and conspiracy to murder Anthony Turra; and the attempted murder of Anthony Milicia. Defendant Merlino was charged in all of these racketeering acts. Thereafter, the indictment listed racketeering acts alleging extortion — conspiracy to extort "street tax" and protection money (RA6); extortion of Anthony Milicia and Louis Procaccini (RA7); Hobbs Act extortion and extortion of a bookmaking business under Pennsylvania law (RA's 9-24); and extortionate collection of credit and conspiracy to collect an extortionate collection of credit (RA28). Bringing up the rear, so to speak, were allegations of illegal sports bookmaking (RA's 25-27); receipt, possession, and sale of a stolen Lamborghini (RA29); receipt of, respectively, stolen Sony TV sets, electric ceiling fans, women's sweatsuits, baby formula, and bicycles (RA's 30-34); and, as against Merlino, the conspiracy to distribute cocaine and use of a communication facility to further that conspiracy charged in the initial indictment (RA's 35-36). Count Two charged a RICO substantive offense, and the remaining thirty-four counts of the indictment largely tracked the racketeering acts described above. We will, of course, parse the counts as necessary to do so in the discussion which follows.
Given what was charged, and the strong emphasis at trial on the violent offenses (including the promised or feared violence by which extortion can, of course, be defined), it was not an overstatement to say, as we said at the outset, that, for whatever reason, the government lost "the heart of its case." Thus, Merlino was convicted only of Counts One and Two (the RICO conspiracy and RICO substantive counts, respectively), Count Three (collection of an unlawful debt), Count Twenty-Three (illegal gambling business); Counts Thirty, Thirty-Two, and Thirty-Three (receipt of stolen ceiling fans, baby formula, and bicycles); and Count Thirty-Four (conspiracy to receive stolen goods). The only racketeering acts found "proven" as to him were RA6 (conspiracy to extort "street tax" and protection money); RA25 (illegal sports bookmaking); and RA's 31-34 (receipt of the stolen fans, sweat suits, baby formula, and bicycles). Stated somewhat differently, as to defendant Merlino, the jury found "not proven" all of the RA's alleging murder, conspiracy to murder, attempted murder, and extortion, and acquitted on all of the concomitant substantive counts with which he was charged.
Each of the other defendants was also convicted on Counts One and Two. Defendant Mazzone was found guilty as well of Count Twenty-Four (illegal sports bookmaking), and only RA6 (conspiracy to extort "street tax" and protection money), RA7 (extortion of Anthony Milicia and Louis Procaccini) and RA26 (illegal sports bookmaking) were found to be "proven." Defendant Borgesi did not fare quite as well, being convicted also of Counts Three and Four (collection of an unlawful debt); Counts Sixteen, Twenty, and Twenty-Two (Hobbs Act extortion), although he was acquitted of the bulk of the extortion counts; and Counts Twenty-Three, Twenty-Four, and Twenty-Five (illegal sports bookmaking). The jury also found that RA6 (conspiracy to extort), RA's 18, 20, 21, 22, and 24 (extortion), and RA's 25, 26, and 27 (illegal sports bookmaking) were "proven."
Angelina was also found guilty of Count Eight (Hobbs Acts conspiracy), Nine through Thirteen (Hobbs Act extortion), Twenty-Four (illegal sports bookmaking) and Twenty-Eight (receipt, possession, and sale of the stolen Lamborghini). The jury found only RA6 (conspiracy to extort), RA's 9-15 (extortion), and RA26 (illegal sports bookmaking) "proven." In addition to Counts One and Two, Ciancaglini was found guilty of Counts Eight and Twenty-Four and RA's 6, 9, and 26 were found "proven." While Gambino was also convicted of Counts One and Two, he was, aside from those counts, only found guilty of receipt of the stolen Sony TV's, sweat suits, baby formula, and bicycles, and only the RA's pertaining to those stolen goods were found "proven." Finally, in addition to Counts One and Two, Lutz was convicted of Counts Three and Four (collection of an unlawful debt); Sixteen, Twenty, and Twenty-Two (Hobbs Act extortion) and Twenty-Three and Twenty-Five (illegal sports bookmaking). RA6 (conspiracy to extort); RA's 18, 20, 21, 22, and 24 (extortion); and RA's 25 and 27 (illegal sports bookmaking) were "proven."
In December of 2001, the District Court imposed sentence on the seven defendants convicted following trial. As relevant here (because no defendant challenges any fine imposed or any term of supervised release), defendants Merlino and Borgesi were sentenced to terms of imprisonment of 168 months; defendants Mazzone, Ciancaglini and Lutz were sentenced to 108 months; and defendants Gambino and Angelina were sentenced to 71 months. They now appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We recognize that the jury's verdict has dramatically narrowed the potential issues on appeal and, thus, has simplified our task that, nonetheless, remains difficult. As we noted at the outset, we have carefully considered the numerous issues which are presented to us and now proceed to explain why, with two exceptions, those we do discuss are unavailing.*fn1
A. Disqualification of Morris W. Pinsky, Esq.
For reasons we will discuss, the District Court granted the government's motion to disqualify Morris W. Pinsky, Esq., defendant Borgesi's "lawyer of many years and first choice for trial." We note that at the outset, albeit somewhat parenthetically, that at all times during the extensive pretrial proceedings and during trial itself, Borgesi was represented by two extraordinarily able attorneys, both of whom he retained. Thus, on April 4, 2000, just days after Borgesi was indicted, Mr. Pinsky entered his appearance, and a mere two days later, Bruce Cutler, Esq., also did so. Mr. Cutler remained in the case from the beginning until the end, joined by Louis M. Natale, Esq., after Mr. Pinsky was disqualified. Thus, as we address the issue of Mr. Pinsky's disqualification, we are not confronted with a situation in which Borgesi was left bereft of counsel, or even bereft of counsel of his choice, because Messrs. Cutler and Natale were surely chosen by him.
We review the District Court's order granting the government's motion to disqualify Mr. Pinsky in two stages. "First, we exercise plenary review to determine whether the district court's disqualification was arbitrary — 'the product of a failure to balance proper considerations of judicial administration against the right to counsel.' If we find that the district court's decision was not arbitrary, we then determine whether the court abused its discretion in disqualifying the attorney[.]" United States v. Stewart, 185 F.3d 112, 120 (3d Cir. 1999) (quoting United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir. 1996)).
Because the District Court "engaged in the balancing required by the Sixth Amendment and developed the record necessary to do so," its decision was not arbitrary. Voigt, 89 F.3d at 1074. The disqualification issue was fully briefed; documentary evidence, including at least one affidavit, was submitted and the parties did not seek to submit more, content to rely on their written submissions that were supported by exhibits; the District Court heard oral argument; and the Court issued a written Memorandum and Order. Indeed, Borgesi does not waste much time arguing that the disqualification itself and the procedures that brought it about were "arbitrary."
The question for us, then, is whether the District Court's ultimate conclusion to disqualify Mr. Pinsky constituted an abuse of discretion. A criminal defendant's Sixth Amendment right to counsel of one's choice is not absolute; "where 'considerations of judicial administration' supervene, the presumption in favor of counsel of choice is rebutted and the right must give way." Id. (quoting Fuller v. Diesslin, 868 F.2d 604, 607 & n.3 (3d Cir. 1989)). Here, of course, given the participation of Messrs. Cutler and Natale, Borgesi was never without "counsel of [his] choice," but only without counsel of what he describes as his "first choice." That, of course, was because Mr. Pinsky was disqualified for two reasons: (1) his communication with potential government witness Gaetano Scafidi on Borgesi's behalf at the Bucks County Correctional Facility on March 14, 2000, and (2) his brief representation of mob bossturned-government witness Ralph Natale during a police interview in the early 1970s.
Borgesi argues that the first ground did not require disqualification, and that the "second was based upon a clearly erroneous finding of fact and imposed disqualification when that was not the least intrusive measure available to deal with the attenuated conflict that the lower court identified." The government responds that the District Court's decision was justified for the reasons noted above, i.e., Mr. Pinsky's improper pre-indictment effort to induce and persuade a represented witness not to testify against Borgesi or otherwise cooperate with the government, exposing Pinsky to possible criminal and/or disciplinary sanctions and making him a potential witness regarding a material matter, and his prior representation of government witness Natale concerned a murder and other matters that were destined to become subjects of crossexamination at trial. We need only address the first reason because we find that reason, in and of itself, to be sufficient.
In the Spring of 2000, facing release from jail and believing that those in the LCN family loyal to defendant Merlino intended to kill him should he return to Philadelphia, Gaetano Scafidi contacted the government and agreed to become a cooperating witness. He was then transferred from federal prison to the Bucks County jail in advance of his grand jury appearance.
When Borgesi learned of Scafidi's transfer, he tried unsuccessfully to find out if Scafidi was cooperating. On March 14, 2000, at Borgesi's behest, Mr. Pinsky visited Scafidi in prison. Mr. Pinsky "smuggled," the government says, a five-page letter from Borgesi into the prison for Scafidi to read; aside from one letter a week earlier, this was the first contact between Borgesi, who was loyal to Merlino, and Scafidi, who had defected from Merlino's faction, in over six years. The letter attempted to disabuse Scafidi of any notion that there was a plan to kill him and assured him that it would be safe for him to return to Philadelphia upon his release. Mr. Pinsky reinforced this message, telling Scafidi that Borgesi liked him and felt badly for him. Mr. Pinsky also told Scafidi that Borgesi's uncle, Joseph Ligambi, who was then the acting boss of the Philadelphia LCN, "had scruples and said hello." Finally, Mr. Pinsky offered Scafidi $100 from Borgesi for his commissary account, which Scafidi declined. On March 17, 2000, Borgesi sent a check for $150 to Scafidi's commissary account, a check which Scafidi did not cash.
As the government puts it, "Scafidi saw Pinsky's visit and the communications from Borgesi as a treacherous mixture of covert threats, deceitful efforts to lull him into a false sense of security... and clumsy attempts to buy him off." The District Court found that "Pinsky's conduct suggests that Pinsky tried to influence either Scafidi's testimony before the grand jury or Scafidi's decision to cooperate with the federal authorities." The District Court viewed this as raising the potential for a conflict of interest, which, where serious, "is a consideration of judicial administration that can outweigh a defendant's right to counsel of choice." Voigt, 89 F.3d at 1050.
Mr. Pinsky's attempt to influence Scafidi, if that is what it was, raised the potential of a conflict for two reasons. First, there was a potential for conflict between Mr. Pinsky's personal interest in avoiding an accusation of professional or criminal misconduct and his duty to vigorously defend Borgesi. An attorney who faces criminal or disciplinary charges for his or her actions in a case will not be able to pursue the client's interests free from concern for his or her own. As even Borgesi was forced to concede, the District Court's finding that Mr. Pinsky's conduct suggested an attempt to influence Scafidi was "a suggestion of potential criminal liability." See also United States v. Grieg, 967 F.2d 1018, 1022-1023 (5th Cir. 1992)(holding that an attorney who attempted to persuade his client's co-conspirator not to cooperate with the government without informing the coconspirator's counsel had an actual conflict of interest arising from his own unethical and possibly criminal behavior and should have been disqualified). Mr. Pinsky may also have violated Rule 3.4 of the Pennsylvania Rules of Professional Conduct, which provides that a lawyer shall not "request a person other than a client to refrain from voluntarily giving relevant information to another party" except under circumstances not present here.*fn2
The fact that the meeting at the prison could have led to Mr. Pinsky being called as a witness was a second source of potential conflict, as it is often impermissible for an attorney to be both an advocate and a witness. See Pa. R.P.C. 3.7 (a). The government introduced evidence at trial of Mr. Pinsky's visit to show Borgesi's consciousness of guilt. Had Borgesi wished to challenge that evidence, he could have done so only by calling Mr. Pinsky as a witness, and if Pinsky had remained as his attorney, an actual conflict of interest would have existed. We note, as well, that disqualification may also be appropriate where it is based solely on a lawyer's personal knowledge of events likely to be presented at trial, even if the lawyer is unlikely to be called as a witness. See United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993). The fact that Mr. Pinsky informed Scafidi that Borgesi's uncle, Joseph ...