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United States v. Scarfo

argued: March 7, 1988.

UNITED STATES OF AMERICA
v.
NICODEMO SCARFO A/K/A "THE LITTLE GUY," APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Crim. No. 86-00453-04.

Weis, Greenberg and Aldisert, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.*fn*

Because the prosecution's evidence describing the defendant's organized crime group might have caused anxiety among the jurors, the trial judge withheld their identities before and after voir dire in this extortion case. In these circumstances, we find no abuse of discretion either in adopting that procedure or in explaining it to the jury. We also conclude that other crimes evidence was properly received and that the limiting instructions were appropriate. Accordingly, we will affirm the judgment of conviction.

Defendant Scarfo was convicted of conspiracy and extortion in violation of the Hobbs Act, 18 U.S.C. ยงยง 2, 1951. He was indicted together with five other persons. Two of his associates pleaded guilty and testified as government witnesses, one was a fugitive, and the charges against two others -- Councilman Leland Beloff and his assistant Robert Rego -- were severed and tried separately.

The evidence at trial permitted the jury to find that Nicodemo Scarfo is the "boss" of the Philadelphia La Cosa Nostra, the organized crime group operating in eastern Pennsylvania and parts of New Jersey. Codefendant Beloff, a Philadelphia city councilman and close friend of Scarfo, cooperated with the group in its illegal activities by corrupting his government office for personal gain. Codefendant Rego, Beloff's administrative aide, also had long standing links with Scarfo's organization.

Beloff and Rego conspired with the Scarfo organization to extort $1 million from a real estate developer, Rouse & Associates, in exchange for Beloff's politically indispensable cooperation in the Penn's Landing redevelopment project on the Philadelphia waterfront. Negotiations between Beloff and representatives from Rouse & Associates were conducted through co-defendant Nicholas Caramandi, a member of the Scarfo organization who later agreed to testify as a government witness.

After the initial contact by Caramandi, the Rouse firm reported the extortion plan to the FBI, which had already placed an informant within the Scarfo organization. As the trial judge assessed the evidence, the remarkable degree of FBI infiltration into the plot permitted the government "to develop virtually conclusive proof of the extortion scheme."

The critical evidence tying defendant Scarfo into the intrigue rested almost exclusively on the testimony of co-defendants Caramandi and Thomas DelGiorno. DelGiorno testified that as a "capo" in Scarfo's group, he and his underlings carried out activities in accordance with instructions received from Scarfo. Among those under DelGiorno's command was Caramandi.

Pretrial proceedings revealed that plea agreements, which included transactional immunity and post-trial witness relocation, had been arranged with Caramandi and DelGiorno in return for their testimony as government witnesses. Both had been implicated in several murders allegedly committed at Scarfo's behest. Their testimony would show that one prospective witness had been killed in the past, one judge had been murdered, and attempts had been made to bribe other judges. Caramandi and DelGiorno's lives had been threatened, and they would remain under heavy guard during their appearances in court.

In view of these unusual circumstances, the trial judge granted the government's motion to empanel an anonymous jury. During voir dire neither party was permitted to learn the jurors' names, residence addresses, or places of employment. However, the prospective jurors completed an extensive written questionnaire which delved into such topics as the nature of their employment, the general neighborhood in which they lived, their age, reading habits, television viewing preferences, education, experience as jurors in previous criminal cases, membership in various organizations, hobbies, and connections to law enforcement agencies. The judge then personally interrogated the prospective jurors, after which he permitted further questioning by counsel.

Before the trial began, the judge told the jurors that they would be selected on an anonymous basis and sequestered. He informed them that they would hear testimony about organized crime, and that he wanted them to consider the case without any apprehension that they or their families would be endangered. The judge made it clear that, in his lengthy career on the bench, he had not heard of a case where a defendant tried to harm a juror and gave his "personal, strong belief" that there was no basis for such concern in this case.

The judge emphasized that anonymity was intended to protect the interests of both the prosecution and the defense. He explained that the anonymous selection procedure was not to be interpreted as a reflection on the defense, but was being used simply as "a precautionary measure to make sure that both sides get a fair trial." The defendant would want to avoid contact with the jury by someone who, though purporting to represent him, sought instead to jeopardize his defense by making threats in his name.

In the charge to the jury at the conclusion of the trial, the court reiterated that the anonymous selection process had been designed to protect the jurors against the possibility that persons not associated with the proceedings might have tried to "muddy up the waters" or "cause unnecessary worry". Although the judge acknowledged that he had adopted the procedure "to relieve your minds of any anxiety," he repeated his "absolute" belief that "there was never the slightest reality to any such feeling of insecurity." The full text of the instructions to the jury is attached to this opinion as an appendix.

Before trial, the defense requested the court to prohibit the United States Attorney from referring to La Cosa Nostra, the mafia, or evidence of murders. The trial judge denied the motion, reasoning that evidence showing that Caramandi and DelGiorno carried out their instructions to commit other crimes was admissible to establish their subservience to Scarfo.

During the government's case, these two witnesses explained that membership in the Scarfo crime family was limited to only those who had been "made," that is, to those who had committed a murder. They described the secret initiation ceremony in which each proposed member swore absolute loyalty to the crime family.

Caramandi and DelGiorno detailed the various levels of authority within the organization, its murders, briberies, extortions, and other criminal activities, together with the violence that was used to maintain internal discipline. Members participated in such activities only with the knowledge and consent of their superiors. In the case of homicides, however, prior approval from the crime boss himself was required. Both Caramandi and DelGiorno testified to several assassinations ordered because the victims broke the organization's rules.

These witnesses described Scarfo's knowledge of the Rouse extortion scheme and the necessity that he approve Carmandi's participation in the plot. In addition, they told of Scarfo's several modifications to the division of the anticipated extortion proceeds between his organization and the other participants.

After the jury found him guilty on two counts, defendant moved for a new trial and an acquittal. In denying the motions, the district court commented that evidence of Scarfo's leadership and the grave consequences for conducting unapproved criminal activities were crucial to understanding his role as a co-conspirator. The testimony linking Scarfo to murders unrelated to the Rouse extortion was necessary to explain why Caramandi and DelGiorno had turned government witnesses, despite the likelihood of death or serious injury for breaking faith with the mob.

Although defendant did not object to the witnesses' detailed recitations of their part in various crimes, the trial judge cautioned the jury that the government's evidence was admitted for only limited purposes and that defendant was not on trial for those other offenses. The judge was convinced that his limiting instructions on the evidence and the anonymous selection procedures were adequate and that "they not only could, but actually did, eliminate the potential for unfair prejudice."

On appeal defendant raises three arguments. First, he contends that the government's evidence of other crimes was conveyed in frightening detail that made it impossible for the jury to analyze the crucial issues dispassionately. Second, he argues that the empaneling of an anonymous jury was improper and heightened unnecessarily the atmosphere of prejudice and fear, thus denying a fair trial. Third, he asserts that the indictment charged a single conspiracy but that the government at trial had proved multiple schemes.

I.

EVIDENCE OF OTHER CRIMES

Federal Rule of Evidence 404(b) generally prohibits the admission into evidence of extrinsic acts intended to prove a defendant's propensity for crime or to suggest to the jury unfavorable inferences reflecting on his character. However, evidence that bears on a relevant issue in the case, though possessing the potential to damage the defendant's cause, is not inadmissible for that reason alone.

As the Supreme Court clarified in Huddleston v. United States, 485 U.S. 681, , 108 S. Ct. 1496, 1500, 99 L. Ed. 2d 771 (1988), Federal Rules of Evidence 401 and 402 embody "the broad principle that relevant evidence -- evidence that makes the existence of any fact at issue more or less probable -- is admissible unless the Rules provide otherwise." Rule 404(b) is one such rule providing otherwise.

Rule 404(b) is a codification of the common law prohibition against the admission of evidence of prior crimes, wrongs, or other acts relevant solely to prove the defendant's "general criminal predisposition to do wrong." P. Rice, Evidence: Common Law & Federal Rules of Evidence 136 (1987). We have said that we will "refuse to admit evidence of prior criminal acts which has no purpose except to infer a propensity or disposition to commit crime." Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976).

However, if offered for another, proper purpose, the same evidence of other crimes or acts is subject only to the ordinary limitations under Rules 402 and 403. Before admitting evidence of other acts under Rule 404(b), a court therefore must inquire "whether that evidence is probative of a material issue other than character." Huddleston, U.S. at , 108 S. Ct. at 1499.

Recognizing the risk that unduly prejudicial testimony might be introduced under Rule 404(b), the Supreme Court has listed four guidelines for admissibility under the Rule. First, the other crimes evidence must have a proper purpose. Second, the proffered evidence must be relevant. Third, its probative value must outweigh its potential for unfair prejudice. Fourth, the court must charge the jury to consider the other crimes evidence only for the limited purpose for which it is admitted. Id. at , 108 S. Ct. at 1502.

The drafters contemplated that Rule 404(b) would be construed as a rule of "inclusion" rather than "exclusion". "They intended to emphasize admissibility of 'other crime' evidence." United States v. Long, 574 F.2d 761, 766 (3d Cir.), cert. denied, 439 U.S. 985, 58 L. Ed. 2d 657, 99 S. Ct. 577 (1978). The possible uses of other crimes evidence listed in the Rule -- motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake -- are not the only proper ones. United ...


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