United States v. Gotti

This case raises an issue of first impression for this Court: the scope of the Supreme Court's holding in Scheidler v. National Org. for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) ("Scheidler II"),1 in which the Supreme Court tightened the requirements for finding that a defendant has committed extortion under the Hobbs Act, 18 U.S.C. § 1951. On appeal, the defendants-appellants—Peter Gotti, Richard G. Gotti, Anthony ("Sonny") Ciccone, and Richard Bondi—argue that Scheidler II invalidates all of the Hobbs Act counts in this case that were premised on the extortion of intangible property rights. We hold, however, that Scheidler II did not invalidate the challenged extortion counts at issue in this case, because Scheidler II—far from holding that a Hobbs Act extortion could not be premised on the extortion of intangible property rights—simply clarified that for Hobbs Act liability to attach, there must be a showing that the defendant did not merely seek to deprive the victim of the property right in question, but also sought to obtain that right for himself. That standard, which can be satisfied regardless of whether the property right at issue is tangible or intangible, has been met by each of the Hobbs Act counts at issue here. We also reject the numerous other challenges brought by the defendants-appellants to their convictions. Finally, with regard to the defendants-appellants' sentences, we remand Ciccone's and Bondi's cases for resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir.2005), and we remand Peter Gotti's case for consideration of resentencing pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005).2 We also reject the argument advanced in the government's cross-appeal that the district court erred when, in sentencing Peter Gotti under the then-mandatory Sentencing Guidelines, it declined to impose a four-level leadership role enhancement upon him despite its finding that he had served as acting boss of the Gambino Organized Crime Family of La Cosa Nostra (the "Gambino Family").

I. BACKGROUND: THE INDICTMENT, TRIAL, VERDICTS, AND SENTENCES

The 68-count indictment in this case centered on the corrupt influence of the Gambino Family over certain labor unions, businesses, and individuals operating at the piers in Brooklyn and Staten Island. The indictment was brought against seventeen Gambino Family members and associates, including the four defendants-appellants here: (1) Peter Gotti, described in the indictment as the acting boss of the Gambino Family; (2) Ciccone, described as a Gambino Family captain; (3) Richard G. Gotti, described as a "made member" of the Gambino Family; and (4) Bondi, described as a Gambino Family associate.3 The four defendants-appellants all went to trial, along with three other defendants (Primo Cassarino, Richard V. Gotti, and Jerome Brancato, all of whom were described as "made members" of the Gambino Family), while the remaining ten defendants entered guilty pleas.4

The first two counts of the indictment were racketeering and racketeering conspiracy counts brought under 18 U.S.C. §§ 1962(c) and (d). These two counts encompassed, as predicate acts, the substantive allegations that were then also set forth as separate offenses in Counts 3-68.

For purposes of this appeal, the counts of which the defendants-appellants were ultimately convicted can be divided, on the basis of general subject matter, into fourteen categories. Those categories are as follows: (1) the International Longshoremen's Association, AFL-CIO ("ILA") Counts (RICO Predicate Act 1; Counts 3-7); (2) the Management-International Longshoremen's Association Managed Health Care Trust Fund ("MILA") Counts (RICO Predicate Act 2; Counts 8-13); (3) the Local 1 Checkers chapter of the ILA ("Local 1") Counts (RICO Predicate Act 3; Counts 14-18); (4) the Local 1814 chapter of the ILA ("Local 1814") Counts (RICO Predicate Act 4; Counts 19-23); (5) the Howland Hook Container Terminal ("Howland Hook") Counts (RICO Predicate Act 5; Counts 24-25); (6) the Frank Molfetta ("Molfetta") Counts (RICO Predicate Act 6; Counts 26-27); (7) the Money Laundering Counts (RICO Predicate Acts 7-21; Counts 28-46); (8) the Tommy Ragucci ("Ragucci") Counts (RICO Predicate Act 23; Counts 49-50); (9) the Leonardo Zinna ("Zinna") Count (RICO Predicate Act 24; Count 51); (10) the Nicola Marinelli ("Marinelli") Counts (RICO Predicate Act 25; Counts 52-53); (11) the Eduard Alayev ("Alayev") Counts (RICO Predicate Act 26; Counts 54-57); (12) the Steven Seagal ("Seagal") Counts (RICO Predicate Act 27; Counts 58-59); (13) the Gambling Counts (RICO Predicate Acts 31-32; Counts 66-67) and (14) the Witness Tampering Count (RICO Predicate Act 33; Count 68).

Below, we summarize—in the light most favorable to the government, given the defendants-appellants' convictions—the evidence adduced at trial as to each category of counts with respect to the applicable defendants-appellants.

The gravamen of the ILA Counts, Indictment ¶¶ 98-109, was that certain members and associates of the Gambino Family, including defendant-appellant Ciccone, had exercised control over the affairs of the union, first by using force to determine "who filled various International Executive Officer and other ILA positions" in order to "ensure that organized crime associates would be placed in these positions," and then by directing the activities of those office-holders. Id. ¶ 100. These activities gave rise to counts of both extortion and fraud.

With regard to extortion, the indictment alleged that the defendants had wrongfully obtained the following property of ILA union members: "(1) ILA labor union positions, money paid as wages and employee benefits, and other economic benefits that such ILA union members would have obtained but for the defendants' corrupt influence over such union; (2) the right of ILA union members to free speech and democratic participation in the affairs of their labor organization as guaranteed by [Sections 411 and 481 of the Labor-Management Reporting Disclosure Act (`LMRDA'), 29 U.S.C. § 401 et seq.]; and (3) the right of ILA union members to have the officers, agents, delegates, employees and other representatives of their labor organization manage the money, property and financial affairs of the organization in accordance with [Section 501(a) of the LMRDA]." Id. ¶ 99.

As to fraud, the indictment stated that the defendants had defrauded the ILA and its members out of (1) "ILA labor union positions, money paid as wages and employee benefits, and other economic benefits that such ILA union members would have obtained but for the defendants' corrupt influence over such union" and (2) their right to the honest services of their elected officials and other ILA delegates, employees, agents, and representatives. Id. ¶ 104.

At trial, the government adduced substantial evidence in support of the ILA charges. George Barone—a member of the Genovese Organized Crime Family of La Cosa Nostra (the "Genovese Family")—testified that there had been a long-held understanding between the Gambino Family and the Genovese Family concerning the ILA's activities, whereby the Gambino Family "would take care of Staten Island and Brooklyn" and the Genovese Family "would take care of New York and New Jersey." Trial Tr. ("Tr.") 721-22, 727. Barone stated that in the late 1970s, Ciccone became the Gambino representative in charge of the waterfront for Staten Island and Brooklyn, and served as a vice president of the ILA, with the local ILA union officials essentially under his control. Tr. 735-37. Barone himself went to jail from 1983 to 1990, and after being released from jail, again became involved in the Genovese Family's waterfront activities. Tr. 739, 743. At that point, Barone learned that Ciccone was still controlling the waterfront activities in the area, and still possessed influence over the ILA local union officials' activities. Tr. 755.

Additionally, Frank Scollo—former president of Local 1814, an ILA chapter in Brooklyn—testified that "Mr. Ciccone would tell me on many occasions what to do, what not to do." Tr. 1337, 1341-42. Scollo explained that he feared losing his job as president if he contradicted Ciccone's orders. Tr. 1371. He stated his predecessor, Frank Lonardo, had similarly taken instructions from Ciccone. Tr. 1362-63. Scollo further testified that he kept his relationship with Ciccone secret from all of the other union members. Tr. 1411.

Scollo also specifically testified that prior to the July 2000 ILA convention in Lake Tahoe (which Scollo was to attend as a delegate), Ciccone gave him instructions as to which individuals should be elected to various ILA leadership positions. Tr. 1396. Scollo stated that he was only partially able to carry out these instructions, and that he immediately conveyed all of the developments to Ciccone because "Sonny wanted to know whatever we did; he wanted to be firsthand; he wanted to know about it." Tr. 1398-1400. Scollo explained that Ciccone "didn't want to lose any positions from the Brooklyn side, and as a result, we lost one spot that was [a] concern of his and ours." Tr. 1401. The government also introduced wiretap evidence of the reports that Scollo made to Ciccone (through Cassarino as an intermediary). Gov't Exh. TR-63.

Moreover, Scollo testified that after the ILA convention, a particular Local 1814 delegate named Phil Scala was upset that he had not obtained the leadership position that he wanted, and thus essentially refused to do any more work. Tr. 1448. Scollo, as a result, was very unhappy with Scala's performance and wanted to terminate him. Tr. 1449. However, Scollo did not feel that he had the authority to terminate Scala without Ciccone's approval, because "Sonny always told us ... it's the big decisions that we should have to confer with him first." Tr. 1450. In a wiretapped April 18, 2001 conversation between Scollo and Ciccone, Scollo asked, "Can I fire him if I have to?" Gov't Exh. TR-87. Ciccone responded, "Know what you do ... don't pay him for vacation, and tell him, `Let me tell you something, I was told to tell you already that next time you fuck up like this and you leave me hanging like this, I'm gonna fire you'.... And let him go where the fuck he wants to go." Id. Scollo followed these instructions and Scala later resigned. Tr. 1455. Scollo then sought Ciccone's approval to appoint someone else in his place. Tr. 1456.

The MILA Counts related to a scheme of the Gambino and Genovese Families to use their control over MILA (the ILA's national health plan) to ensure that a particular company called GPP/VIP—which was partially owned by Gambino Family associate Vincent Nasso, and which paid substantial kickbacks—was awarded MILA's lucrative pharmaceutical services contract. Indictment ¶¶ 110-113. Ciccone was the only defendant-appellant named in these counts.

At trial, the government adduced evidence of the MILA scheme from several sources. David Tolan—the management co-chairman of MILA since 1997—testified that MILA had been established in early 1997 as a national health plan for all ILA members, and that its Board of Trustees included eighteen management-side trustees and eighteen union-side trustees. Tr. 1079, 1082. In 1997, the MILA trustees decided to include a prescription drug benefit for the members and, to that end, requested proposals from twenty-two pharmaceutical benefit providers. Tr. 1088. All twenty-two companies responded with bids; MILA's outside consultants then produced a list of the top five contenders. Tr. 1088-89. A company called GPP ranked number five in that list, while a company called Express Scripts ranked first. Tr. 1089. Nolan recommended that GPP (which he believed lacked sufficient financial resources) be eliminated from the list, and that MILA engage Express Scripts. Tr. 1092. The union trustees, however, did not agree with that recommendation, and wanted to enter into an arrangement with GPP. Tr. 1093, 1097-98. The trustees eventually reached an agreement whereby everything below the Virginia border would be managed by Express Scripts, and everything above the Virginia border would be managed by GPP, which had since become part of a larger entity called GPP/VIP. Tr. 1099-1101. The principals of GPP/VIP were Joel Grodman and co-defendant Vincent Nasso. Tr. 1101.

Tolan further testified that after Express Scripts refused to allow an audit that the MILA trustees wanted, MILA began using GPP/VIP exclusively, both north and south of the Virginia border. Tr. 1104-05. Tolan stated that he did not consider GPP/ VIP cost-effective, because it was more expensive than other service providers. Tr. 1108. In June of 2001, GPP/VIP requested a half-million dollar annual fee increase, at which point Tolan decided to have the MILA consultants initiate a new round of bidding for the contract. Tr. 1110-13. After the bids came in, GPP/VIP came in second place; in first place was Advance PCS, a pharmaceutical benefit provider whose bid was $4.5 million cheaper than that submitted by GPP/VIP. Tr. 1113-14. Although all the trustees then initially agreed to award the contract to Advance PCS, the union trustees subsequently changed their position and sought to impose two conditions on Advance PCS. Tr. 1114, 1120. Advance PCS agreed to the conditions, but the union trustees still refused to support it, and brought a motion to continue using GPP/VIP. Tr. 1123-25. At that point, the management trustees submitted the matter to binding arbitration, and the arbitrator ultimately ruled in favor of Advance PCS. Tr. 1126-27. Thus, GPP/VIP ultimately held the lucrative pharmaceutical services contract from approximately 1997 to 2001.

The government also adduced evidence that helped to explain why certain ILA trustees had been such strong supporters of GPP/VIP, notwithstanding its higher rates: Ciccone had so ordered. Barone testified that Vincent Nasso was a Gambino Family associate who paid kickbacks to Ciccone out of the contract proceeds. Tr. 760-61. Moreover, Scollo—who, after becoming the President of Local 1814 in August of 2000, became a union-side MILA trustee—specifically testified that he was informed that "Sonny [Ciccone] was interested in [Vincent] Nasso, keeping the GPP in place." Tr. 1412-13. He stated that "Sonny himself told me to keep him abreast of it." Tr. 1413. Scollo further testified that when Advance PCS emerged as a strong challenger in 2001, Cassarino instructed Ciccone, "make sure you do all you can to help [GPP]." Tr. 1419. Scollo responded, "I'll do the best I can, but I think it's too far gone." Tr. 1419-20. Scollo testified that he did not reveal Ciccone's connection with Nasso to any of the other MILA trustees or members. Tr. 1431.

The government also presented wiretap evidence indicating the connection between Nasso and Ciccone, as well as the kickbacks that were being paid from Nasso to Ciccone. For example, in a March 26, 2001 wiretapped conversation among Ciccone, Cassarino, and Nasso, the three men discussed the fact that the MILA March payment had just come in. Gov't Exh. TR-176. Ciccone asked Nasso, "When am I going to see you? I gotta, I'm gonna lay it out." Id. (As discussed in further detail infra, this was apparently a reference to Ciccone's need for the money in order to make his monthly tribute payment to Peter Gotti, the acting boss.) On Wednesday, April 18, 2001, Ciccone and Nasso spoke again about the MILA contract. Nasso noted that "the Jew [Joel Grodman, co-principal of GPP/VIP] wants to raise the rate." Gov't Exh. TR-178N. Ciccone responded, "Tell him to go fuck himself. Tell him you do what I tell you to do." Id. Ciccone added, "I'm calling the shots over here, not you. And tell him, the day you don't like it, I got another guy to replace you. You're only here on account of me. Fuck him." Id. Nasso agreed, stating, "All right. That's what I'm gonna say today." Id. Ciccone also asked about receiving his check, to which Nasso responded, "The Jew's gotta send me the money." Id. Ciccone asked, "But the Jew got the money?" Id. Nasso replied, "No, not yet, not yet.... I gotta know when it comes in." Id. Ciccone said, "So tell me about it, I'm laying the fucking thing out too ... [the] last two months, last two times." Id.

The gravamen of the Local 1 Counts, Indictment ¶¶ 124-137, was that certain defendants, including defendants-appellants Ciccone and Bondi, had conspired and attempted to extort and defraud the Local 1 Chapter of the ILA, particularly by trying to exercise control over two Local 1 officials: Steve Knott (the president) and Louis Saccenti (an elected Local 1 delegate). Specifically, the indictment alleged that the defendants had sought to extort the Local 1 members' property interests in "(1) Local 1 labor union positions, money paid as wages and employee benefits, and other economic benefits that such Local 1 union members would have obtained but for the defendants' corrupt influence over such union; (2) the right of Local 1 union members to free speech and democratic participation in the affairs of their labor organization as guaranteed by [Sections 411 and 481 of the LMRDA, 29 U.S.C. § 401 et seq.]; and (3) the right of Local 1 union members to have the officers, agents, delegates, employees and other representatives of their labor organization manage the money, property and financial affairs of the organization in accordance with [Section 501(a) of the LMRDA]." Id. ¶ 125. The indictment further alleged that the defendants had sought to defraud Local 1 and its members out of (1) "Local 1 labor union positions, money paid as wages and employee benefits, and other economic benefits that such Local 1 union members would have obtained but for the defendants' scheme and artifice to defraud" and (2) their right to the honest services of their elected officials and other Local 1 delegates, employees, agents, and representatives. Id. ¶ 130.

At trial, Scollo testified that while he was President of Local 1814, he had several conflicts with Saccenti, because Saccenti—on behalf of Local 1—would sometimes take actions that "were detrimental to the Brooklyn side of the waterfront, my local [Local 1814]." Tr. 1432. When this occurred, Scollo would "call up Primo [Cassarino] and say `that guy's breaking chops again,' and he would bring it to Sonny [Ciccone]." Id. For example, on one occasion during the summer of 2000, Scollo was upset that Saccenti was going to fill a temporarily vacant shop steward position with someone named Doyle. Tr. 1433. Scollo explained that he wanted someone else to fill that position. Id. Accordingly, he reported the situation to Cassarino, hoping that Cassarino would tell Ciccone and that Ciccone would "reach out for Louie [Saccenti] not to make that change." Tr. 1433-44. Cassarino, in turn, told Scollo to tell "Stevie" [Knott] "not to make any move until [Ciccone] speaks to [Saccenti]." Tr. 1441. Scollo, however, was unable to reach Knott. Id. Scollo testified that the friction between him and Saccenti continued, as Saccenti attempted to make certain changes at the Howland Hook Container Terminal in Staten Island. Tr. 1444-45. Scollo did not like these changes because he believed they would "slow things down" on the Local 1814 side. Tr. 1445. Thus, in a February 26, 2001 wiretapped conversation between Scollo and Cassarino, Scollo said that he had told "Augie [Decrescenzo, the Local 1 stop steward] no changes till we get notified. That's Sonny's [Ciccone's] orders." Gov. Exh. TR-77. In a March 8, 2001 conversation between Scollo and Cassarino, Scollo reported, "Augie called me.... [H]e was all disturbed from Howland Hook.... Louie [Saccenti] told Augie this afternoon that he spoke to you and everything was taken care of." Gov't Exh. TR-78. Scollo stated that Saccenti was a "liar" for having falsely implied that everything was resolved. Id. Cassarino instructed, "[T]ell Louie, `Lou, what are you doin', you're supposed to see me before you do anything.'" Id.

The tension between Scollo and Saccenti continued to worsen, as evidenced by a June 27, 2001 wiretapped conversation between Scollo and Cassarino, in which Scollo reported that Saccenti was telling everyone "all bets are off." Gov't Exh. TR-79. Cassarino responded, "I don't understand this guy.... Who the fuck is givin' this guy authority to do this?" Id. Scollo agreed: "Something's gotta be done with Louie." Id. Cassarino reiterated, "He's outta control.... Who the fuck's he think he is?" Id. Later that day, in another wiretapped conversation, Ciccone instructed Cassarino to take "Richie" [Bondi] with him that night and to "[s]top by" Saccenti's house, "ring his bell," and "[s]ay, you know what? You'd better stop it.... You'd better stop.... Otherwise, you know what's gonna happen here?" Gov't Exh. TR-81. At trial, an investigator for the New York State Attorney General's organized crime task force testified that on that evening, he saw Cassarino and Bondi drive up to Saccenti's home, exit their car, walk toward the entrance, wait there, and then drive away. Tr. 3230-3235.5

At trial, Scollo acknowledged that as a Local 1814 official, he did not have any authority over these Local 1 officials, but testified that he—through the help he received from Cassarino and Ciccone—was nonetheless sometimes successful in influencing Saccenti's activities with respect to Local 1. Tr. 1447-48.

These counts alleged that certain defendants, including Ciccone, had—principally through their control over Scollo, the Local 1814 President—conspired and schemed to defraud members of Local 1814 out of (1) "Local 1814 labor union positions, money paid as wages and employee benefits, and other economic benefits that such Local 1814 union members would have obtained but for the defendants' scheme and artifice to defraud" and (2) their right to the honest services of their elected officials and other Local 1814 delegates, employees, agents, and representatives. Indictment ¶¶ 138-151. The government adduced significant evidence in support of these charges, as described above: namely, the testimony and wiretaps illustrating in detail that Scollo, unbeknownst to the Local 1814 members whom he purportedly represented, had taken orders from Ciccone as to Local 1814 activities, and had not made significant Local 1814 decisions without first obtaining Ciccone's approval.

The gravamen of these counts was that certain defendants, including defendant-appellant Ciccone, had extorted cash payments from Carmine Ragucci, the then-owner of Howland Hook Container Terminal, a shipping terminal in Staten Island. Id. ¶¶ 152-155.

At trial, Scollo testified that in late 1996 (before he became president of Local 1814), Ciccone told him that Ragucci was going to start giving him envelopes for transmission back to Ciccone. Tr. 1379. Scollo said that he did "not really" want to be involved in bringing the envelopes from Ragucci to Ciccone, Id. Nonetheless, about eight or nine months later, Ragucci began periodically giving Scollo envelopes for Ciccone. Tr. 1380-81. Scollo testified that he would give the envelopes either directly to Ciccone, or (at Ciccone's instructions) to someone else who would then pass the envelope on to Ciccone. Tr. 1381-82. Scollo once assisted Ragucci in putting approximately $8,900 in cash in an envelope for transmission to Ciccone. Tr. 1383.

Scollo testified that he was supposed to pick up the envelopes from Ragucci quarterly, but that Ragucci was very often late with the payments. Tr. 1384. When Ragucci was late, Scollo would report to Ciccone that Ragucci did not have the money, at which point Ciccone would tell him to "make sure that guy does the right thing," and "make sure you go back and make sure you get it." Tr. 1384, 1392. Scollo testified that Ciccone would be "a little pissed off" by late payments and that he, in turn, would communicate Ciccone's displeasure to Ragucci. Tr. 1392.

Scollo further stated that he believed that the transmissions were illegal, explaining, "The fact that we were doing it in these crazy places, and it got worse as time went by, I knew it was not the proper thing to do. I just did it." Tr. 1386. He also testified about the surreptitious nature of the transmissions: "We tried to use decoded ways.... By that I mean, we would use various code words—you got `that thing'?" Tr. 1388. He explained that they wanted to ensure that if someone were listening to the conversation, its meaning would not be easily understood. Tr. 1389.

Additionally, both Scollo and Carmine Ragucci's brother, Tommy, indicated that Ciccone had no legitimate reason to collect payments from Ragucci, by testifying that to their knowledge, Ciccone had not loaned Ragucci money, nor was he an investor in Howland Hook. Tr. 1744-45, 1897.

These counts alleged that certain defendants, including defendant-appellant Ciccone, had extorted Frank Molfetta, the owner of a trucking company. Indictment ¶¶ 156-59. The events leading up to this extortion began in 1994, when Molfetta— the owner of a trucking company named Bridgeside Drayadge—entered into a written contract with Carmine Ragucci, pursuant to which he paid Ragucci $150,000 for certain exclusive rights to operate the trucking business at Howland Hook. Tr. 1785. Molfetta was supposed to pay Ragucci an additional $100,000 once he had earned back the initial $150,000. Id. In approximately 1996, however, Ragucci breached the contract by giving some of the Howland Hook trucking work to another company. Tr. 1789. Molfetta, who had not yet even earned back the initial $150,000, concluded that he did not owe Ragucci the additional $100,000, although he still continued providing trucking services at Howland Hook. Tr. 1789-92.

Approximately three years later—in late 1999 or early 2000—Ragucci told Molfetta that Ciccone wanted to see him. Tr. 1792. At a meeting at the Unicorn Diner on Staten Island, Ciccone told Molfetta not to pay Ragucci any more money, and to start paying him instead. Tr. 1794-97. Molfetta testified that Ciccone asked for $2500 per month, but that he told Ciccone that he could only pay $1500, and that he would start making these payments the following month. Tr. 1802. Ciccone responded, "No, you start for last month." Tr. 1803.

Molfetta therefore started making monthly cash payments to Ciccone. When asked at the grand jury proceeding why he made these payments, Molfetta stated, "Why? Fear," adding, "I'm afraid right now.... [Y]ou kind of know people in that position have the power to do things to people if they don't do what they're told to do."

At the trial, however, Molfetta changed his account and stated that he had paid Ciccone not out of fear, but rather because Ciccone got him out of his contract with Ragucci. Tr. 1807. The government therefore introduced Molfetta's grand jury testimony as a prior inconsistent statement that could be admitted for its truth. Tr. 1808. When confronted with that earlier inconsistent testimony, Molfetta testified that he had simply told the government what it wanted to hear during the grand jury proceedings, because he was scared that he would be put in jail. Tr. 1809-1811. He acknowledged, however, that the government had threatened him with jail only if he gave false testimony. Tr. 1814.6

These counts related to the payment of illicit proceeds by lower-ranking members to the highest-ranking members of the Gambino Family as "tributes." Peter Gotti, Ciccone, and Richard G. Gotti were the defendants-appellants named in these counts. Indictment ¶¶ 162-63.

At trial, the government presented evidence about the general structure of organized crime families such as the Gambino Family, and about the practice of making tribute payments. FBI Agent Gregory Hagarty testified as an expert witness on organized crime, and explained that in the typical organized crime family in New York City, the "boss" is at the top of the hierarchy, with the "underboss" and the "consigliere" right below him, collectively making up the "administration." Tr. 232, 236. Agent Hagarty stated that when the boss is imprisoned or otherwise incapacitated, the family has "an acting boss who speaks with the same authority as the boss." Tr. 240. He explained that below the administration, there are typically a "number of captains," each of whom runs "a crew of soldiers." Tr. 236. He stated that "associates" were ranked below soldiers, sitting at the lowest level of the pyramid. Id. Agent Hagarty further explained that the overall purpose of an organized crime family is to generate money from illegal activities for the "administration." Tr. 238. He referred to this practice as "kicking up," explaining that "[y]ou take money from your illegal activities and kick it up to your boss. `Tribute' is another word they use." Tr. 239.

With regard to the Gambino Family, Agent Hagarty testified that Paul Castellano had served as boss of the family until 1985, at which point John J. Gotti became its boss. Tr. 248. Agent Hagarty further stated that John J. Gotti's son, John A. Gotti (also known as "Junior"), took over as acting boss in 1992 and served in that position until 1999. Tr. 446-48. The government further presented evidence that in 1999 (when John A. Gotti was imprisoned), his uncle Peter Gotti—brother of John J. Gotti—became acting boss of the Gambino Family. Specifically, the government introduced wiretaps of conversations between Gene Gotti (the incarcerated brother of John J. Gotti and Peter Gotti) and various visitors to the FCI McKean prison. In one such conversation on May 13, 1999, Gene Gotti stated, "My brother Pete's making the books." Gov't Exh. HTR-5. Agent Hagarty testified that this was a reference to "making new members," which could be done only by someone in the administration. Tr. 2442. In another such conversation, which occurred on January 13, 2000, Gene Gotti stated that Peter Gotti was "just there because there's nobody else to put there." Gov't Exh. HTR-10

In the wiretapped conversations, Gene also referred to tribute payments that were being made to Peter Gotti. For example, when one visitor commented to Gene on November 18, 1999, "Two thousand. A thousand each youse are getting ... every month," Gene responded, "Where am I getting it? My wife ain't getting it.... Who's taking it now?" Gov't Exh. HTR-6. The visitor replied, "Your brother gets it. Your brother has it." Id. Subsequently, Gene commented, "They're all taking money. My brother Pete and all the rest of them." Gov't Exh. HTR-7. The visitor stated, "Gene, you've been getting it for the last three years." Id. Gene said, "I never seen it the last three years.... [I]f you did give it to somebody, please get it back. For three years, that's a hundred and fifty thousand dollars. No, twelve, twenty-four, it's thirty-six thousand. Please get it and send it right to my house." Id. The visitor responded, "I'll tell your brother." Id. Gene said, "And from now on don't give it to my brother.... I don't want that. The situation is he gets it—but I haven't touched it. He was my acting capo." Id. Two months later, Gene instructed another visitor, "As soon as you see Peter just tell him, here. Here's eight for you, here's four for Genie." Gov't Exh. HTR-10.

Moreover, the government presented evidence indicating that the tributes were paid in cash to Peter Gotti on a monthly basis—typically the third or fourth Tuesday of each month, and transmitted from Jerome Brancato to Peter Gotti—and that these payments came from extortion, fraud, and gambling activities. For example, on the third Tuesday of April 2000 (April 18, 2000) Ciccone, Cassarino, and Brancato discussed arrangements for payments to someone they referred to only as "him." Gov't Exh. TR-154. Brancato stated, "I was out there the other day with him, I went over the whole thing with him. I'll bring it to him." Id. Cassarino responded, "Do it the way he told ya.... [J]ust take what ya gotta take ... and give [him] everything else." Id. Similarly, on May 22, 2000 (which was the day before the fourth Tuesday of May 2000, i.e., May 23, 2000), Ciccone told Cassarino, "[t]hat guy tomorrow.... [T]ell that guy, if he, he, he's a little confused and he needs to see me, I'll see him anytime he wants." Gov't Exh. TR-156. "What guy?" Cassarino asked. Id. "You know what I'm talkin' about, the guy that Jerry [Brancato's] gotta see tomorrow," answered Ciccone. Id. Cassarino then said, "Oh, oh, oh, oh, yeah, okay. Alright." Id.

Similarly, on October 15, 2000—which was two days before the third Tuesday of October 2000 (October 17, 2000)—Cassarino told Bondi to go see "Eddie" [Alayev] and to "[d]o everything," stating, "I gotta make that deadline by tomorrow, and I'm not gonna make it." Gov't Exh. TR-162. At trial, Agent Hagarty testified that on October 17, 2000, Brancato met Peter Gotti near 159th Avenue and 96th Street in Howard Beach. Tr. 2356.

Once again, on November 25, 2000— which was three days before the fourth Tuesday in November (November 28, 2000)—Cassarino told Bondi, "[Y]ou're gonna have to get the whole thing from Jerome [Orsino] anyway and drop it off at Jerry [Brancato's] house." Gov Exh. TR-165. On the payment date—November 28, 2000—Bondi told Cassarino that Brancato was waiting for him at the club, "because he had to go over there today ... you know what I'm saying?" Gov't Exh. TR-166. At trial, Agent Hagarty testified that on that same day, Brancato was seen going out to Howard Beach, and subsequently meeting Peter Gotti near 159th Avenue and 96th Street there. Tr. 2357-59.

Surveillance agents also observed Brancato meeting Peter Gotti in the same area on January 23, 2001 (the fourth Tuesday of the month). Special Agent James I. Folsom III of the FBI testified that he was on a surveillance assignment in Howard Beach that day. Tr.2095-96. He stated that he observed Peter Gotti's vehicle come into the area, and that this vehicle then "circled the block several times—different blocks." Tr.2097-98. He testified that Brancato then arrived, carrying a "white plastic shopping bag." Tr.2098. Brancato then got into Peter Gotti's vehicle, which drove away. Tr.2097. Agent Hagarty similarly testified that Brancato was seen meeting Peter Gotti at the same Howard Beach location on February 27, 2000 (the fourth Tuesday of the month). Tr. 2361.

Wiretapped conversations from March and April 2001 indicated that the monthly tribute payments were also being derived, at least in part, from the MILA kickbacks. For example, on March 26, 2001, which was the day before the last Tuesday in March, Cassarino told Ciccone that Brancato was "gonna see him [Peter Gotti] Wednesday, not tomorrow." Gov't Exh. TR-176 Ciccone responded that Brancato was "comin' up short ... so I'll lay out the.... [W]hat[,] I'm gonna send Jerry [Brancato] there with nothin'[?]" Id. Later in the conversation, Nasso—who was also on the phone—stated that the MILA March payment had just come in that day. Ciccone asked, "When am I going to see you? I gotta, I'm gonna lay it out," i.e., provide Brancato with money for the tribute payment to Peter Gotti. Id. At trial, Agent Hagarty testified that on Wednesday, March 28, 2001, he observed Brancato meeting with Peter Gotti at the same Howard Beach location. Tr. 2365.

On Wednesday, April 18, 2001, Ciccone and Nasso spoke again about the money from the MILA contract. In this conversation, Nasso stated that "the Jew [Joel Grodman] gotta send me the money.... I gotta know when it comes in." Ciccone said, "So tell me about it, I'm laying the fucking thing out too ... [the] last two months, last two times." Gov't Exh. TR-178N. At trial, Special Agent Robert Rogers of the FBI stated that on Tuesday, April 24, 2001, he observed Brancato meeting Peter Gotti in the same vicinity in Howard Beach. Tr. 2168.

On April 25, 2001, Brancato was arrested in another case, after which time the payment mechanism changed. Tr. 2411. Whereas previously Brancato had been making the payments directly to Peter Gotti in Howard Beach, now Cassarino began making the payments either to Richard V. Gotti (Peter Gotti's brother) or defendant-appellant Richard G. Gotti (Richard V. Gotti's son and Peter Gotti's nephew) in Brooklyn. On Monday, June 25, 2001, for example, Cassarino noted to Ciccone, "We gotta, got that appointment Thursday ... for the month." Gov't Exh. TR-182. At the trial, Special Agent Rogers testified that on Thursday, June 28, 2001, he followed Cassarino—who was carrying a blue plastic bag—to the Sheepshead Bay neighborhood of Brooklyn, where Cassarino then entered Maria's Restaurant. Tr. 2200-01. Richard G. Gotti's car was seen in the parking lot of the restaurant. Tr. 2202-03.

On Wednesday, September 26, 2001, Cassarino indicated to Ciccone that he had initially thought he had "that number," i.e., the full tribute payment, but that "I don't have it." Gov't Exh. TR-189. The following day, Ciccone indicated that he would advance Cassarino the money: "[H]ere's what I'm gonna. . . . I'm gonna give you [money] that's from this guy. Gonna go see him tomorrow, alright. So this way, if I have to lay it out [in advance], I'm gonna see him tomorrow morning." Gov't Exh. TR-189A. The "him" to whom Ciccone was referring was apparently Frank Molfetta —who, as described above, was being extorted for monthly payments by Ciccone —given that the following morning (September 28, 2001), Captain James McGowan of the Waterfront Commission of New York Harbor observed a meeting between Ciccone and Molfetta at a diner on Staten Island, during which Molfetta passed an envelope across the table to Ciccone, stating "it's all there, hundreds." Tr. 1863, 1870.

On November 29, 2001, law enforcement officers executed search warrants on Cassarino and Richard G. Gotti after observing a meeting between them at Maria's Restaurant in Brooklyn. They recovered $12,000 in cash from Richard G. Gotti's pants pockets. Tr. 2315-2316. Cassarino later reported to Ciccone that "[r]emember what happened to Jerry [Brancato] last time [i.e., being apprehended by law enforcement]? . . . Just happened to me." Gov't Exh. TR-202. Ciccone noted, "we should change it," an apparent reference to the existing tribute payment mechanism. Id. Cassarino agreed: "Definitely, without a doubt." Id. Ciccone reiterated, "Yeah. Fuck that. I don't wanna go to jail." Id. Cassarino reflected, "They [the officers] gave me his card, that fucking [Captain] McGowan, that prick." Id.

These counts alleged that certain defendants, including defendant-appellant Ciccone, had conspired and unsuccessfully attempted to extort Tommy Ragucci (referred to in the indictment as "John Doe 1"), an employee at Howland Hook (and the brother of Carmi