United States v. Bruno

Argued: May 17, 2004 These appeals arise from the November 24, 1994 shootings of Genovese Crime Family associates Sabatino Lombardi and Michael D'Urso by John Imbrieco and Anthony Bruno while the victims were playing cards at a Genovese Crime Family social club. Although Lombardi was fatally wounded, D'Urso survived and subsequently became a cooperating witness for the Government. Bruno, Imbrieco, and the ""getaway"" driver, defendant Angelo Cerasulo, later pled guilty to various crimes and agreed to cooperate with the Government. The remaining participants in the November 1994 shootings - defendants-appellants Mario Fortunato and Carmine Polito - were subsequently tried for, and convicted of, violating various federal statutes relating to the Violent Crimes in Aid of Racketeering Act (""VCAR""), the Racketeer Influenced and Corrupt Organizations Act (""RICO""), and obstruction of justice for their roles in planning these shootings and subsequently obstructing the federal investigation of the shootings by attempting to influence the testimony of two grand jury witnesses and lying to the FBI. Of the several arguments raised by Polito and Fortunato, we find that the following have merit and decline to reach the others: (1) The RICO conspiracy, substantive RICO, and VCAR convictions (Counts I, II, and III) must be reversed for lack of legally sufficient evidence. In particular, the evidence was insufficient either to establish that Polito and Fortunato murdered Lombardi to ""maintain or increase"" positions in the Genovese Crime Family or to establish that the shootings of Lombardi and D'Urso were related to the activities of the Genovese Family criminal enterprise. In addition, the evidence was insufficient to establish a corrupt endeavor to influence the testimony of two grand jury witnesses. (2) Because of this latter deficiency, the convictions relating to obstruction of justice (VII and VIII) also must be reversed for lack of legally sufficient evidence. (3) The convictions relating to Cerasulo's false statements (Count V) must be reversed for lack of legally sufficient evidence under the Government's Pinkerton liability theory. (4) The convictions for false-statement conspiracy (included in Count IV) must be vacated because the District Court committed plain error in admitting the hearsay evidence supporting those convictions, in violation of the Confrontation Clause. (5) The convictions for conspiracy to obstruct justice (included in Count IV) must be reversed because the evidence was legally insufficient to support those convictions. (6) The convictions relating to Fortunato's false statements (Count VI) must be vacated due to spillover prejudice. And (7) the District Court improperly instructed the jury with respect to the court's authority to sentence cooperating witnesses in the absence of a § 5K1.1 letter from the Government.