The opinion of the court was delivered by: VAN ANTWERPEN
FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE
In the instant matter, a jury convicted defendant Nicodemo Scarfo and sixteen of his associates of various crimes. The indictment under which defendants were found guilty includes seven counts. Counts I and II respectively charge RICO conspiracy and substantive violations, 18 U.S.C. § 1962(c), (d). They identify Scarfo and sixteen other defendants as members of an enterprise known as La Cosa Nostra, the LCN, the Mafia, the mob, this thing of ours, the Bruno family and the Scarfo family. The indictment alleges that a succession of bosses ran the enterprise, and that Nicodemo Scarfo was its most recent boss. The underboss, most recently Salvatore Merlino and then Philip Leonetti, worked directly below the boss. The enterprise also had an advisor, known as a "consig", and leaders of regimes known as "capos". Soldiers, the most inferior members of the Mafia hierarchy, comprised the regimes.
The purpose of the enterprise was to "control, manage, finance, supervise, participate in, and set policy concerning the making of money through illegal means." In counts I and II, the indictment charges that the enterprise conducted its affairs through a pattern of racketeering activity which included thirty-nine acts of murder, attempted murder, conspiracy to commit murder, extortion, collection of credit by extortion, illegal lotteries (also charged in count III), illegal sports bookmaking (also charged in count IV), conspiracy to distribute and distribution of controlled substances (also charged in counts V, VI, and VII). Counts I and II also charge five collections of unlawful debt. The Mafia carried out these activities primarily in the Philadelphia and Southern New Jersey areas.
Two of Scarfo's associates, Thomas DelGiorno and Nicholas Caramandi, pleaded guilty and testified as government witnesses. They chose to participate with the government because their lives allegedly had been threatened. In light of the circumstances of this case, all parties agreed to an anonymous jury. In addition, the Court granted the government's motion to sequester the jury.
The trial commenced on September 28, 1988 and concluded on November 17, 1988. After deliberating for a few days, the jury convicted all the defendants on all counts.
As a result of those convictions, the defendants filed several posttrial motions. The Court provided defendants with generous extensions of time in which to brief their motions. On March 23, 1989, the Court held oral argument on the motions. We will now address the merits of the motions.
Defendant Charles Iannece argues that the Court erred in denying his motion to suppress the fruits of the search and seizure effected in Lake Harmony, Pennsylvania on October 29, 1987. Iannece argues that the introduction of evidence of his flight without additional limiting instructions prejudiced him and entitles him to a new trial. He suggests that the flight evidence was admissible only as to one predicate act, the Rouse Hobbs Act Extortion, and that the Court should have instructed the jury to consider that evidence only with regard to that act. Iannece also argues that under Fed.R.Evid. 404(b)
, the Court should not have admitted evidence of the guns seized from Iannece because Agent Warner told the jury that one of the guns was stolen; thus, defendant argues, the jury could have concluded that Iannece was responsible for stealing the gun.
Near the conclusion of Agent Warner's testimony, Stephen LaCheen, attorney for Joseph Pungitore, Jr., argued at sidebar that the possession of the guns were 404(b) material, irrelevant to the issue of flight and prejudicial. (Tr. 11/8/88 at 40-41). After a short colloquy on the issue, the Court concluded that admission of the evidence concerning the guns was not prejudicial and was relevant. (Tr. 11/8/88 at 43). No defense attorney argued that the Court should exclude evidence concerning the stolen gun because the jury would conclude that Iannece was responsible for stealing the gun. On behalf of Iannece, Mr. Savino argued only that the Court should not admit the flight and related evidence because Iannece was incarcerated at the time of the instant RICO indictment and the evidence was unrelated to any charges in the indictment. We find that the Court properly admitted the evidence.
Flight is viewed in the law of evidence as admission by conduct which expresses consciousness of guilt. E. Cleary, McCormick on the Law of Evidence § 271 at 655 (2d ed. 1972); See also United States v. Miles, 468 F.2d 482, 489 (3d Cir. 1972) (flight admissible as circumstantial evidence of guilt to be considered with other facts of the case). Its probative value depends upon whether there is sufficient evidence to establish the following four inferences: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to the actual guilt of the crime charged. United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), cert. denied, 439 U.S. 847, 58 L. Ed. 2d 149, 99 S. Ct. 147 (1978). Defendant argues that the last two elements have not been shown because Iannece was incarcerated a the time of the RICO indictment. For flight evidence to be admissible, however, it is not necessary that an actual indictment trigger flight; knowledge of the cooperation of a codefendant, see United States v. Tille, 729 F.2d 615, 622 (9th Cir.), cert. denied, 469 U.S. 845, 83 L. Ed. 2d 93, 105 S. Ct. 156 (1984), or reason to believe that one is sought for commission of crimes, see United States v. Eggleton, 799 F.2d 378, 381 (8th Cir. 1986), is also sufficient to trigger flight. In the instant matter, the evidence suggested that Iannece became a fugitive before he was indicted on any charges, and after learning that Nicholas Caramandi began cooperating with officials. (Tr. 10/29/88 at 126). The potential damage Caramandi's cooperation could create was not limited to the Rouse extortion, but extended to many of the predicate acts included in the instant RICO indictment. Thus, because Iannece's knowledge of the Caramandi cooperation could have triggered his flight, the court properly admitted the flight evidence. Furthermore, defendants never requested a more specific limiting instruction and did not object
to the Court's instruction on flight.
Defendant's argument is not only speculative, but even if the jury would have concluded that Iannece was involved in the theft, this "other crime" pales in the face of substantial evidence concerning defendant's involvement with several murders and shakedowns. After hearing the argument of Mr. LaCheen, and in finding that the gun evidence was relevant to flight and admissible, the Court implicitly balanced the prejudice with the relevance and found the probative value outweighed the potential prejudice. Mr. LaCheen argued that admitting this evidence was "like putting ink in milk," to which the Court responded, "I don't think we have that type of situation here. . . . I think it's relevant that he has guns with him. I think it's part of the flight." (Tr. 11/8/88 at 42-43). Especially given the general nature of the objection,
it was not necessary that the Court more explicitly perform the Rule 403 balancing test. See United States v. Lebovitz, 669 F.2d 894, 901 (3d Cir.) (when trial court fails to articulate balancing test, in some instances we find that court implicitly made the requisite balancing) (citing United States v. Provenzano, 620 F.2d 985, 1003 (3d Cir.), cert. denied, 449 U.S. 899, 66 L. Ed. 2d 129, 101 S. Ct. 267 (1980)), cert. denied, 456 U.S. 929, 72 L. Ed. 2d 446, 102 S. Ct. 1979 (1982); 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 dynamics of a trial do not always permit a detailed Rule 403 analysis). Furthermore, where the defendant does not specifically invoke Rule 403, the balancing is subsumed in the Court's ruling. Id. Under the circumstances, the Court did all the Rules required it to do. Therefore, defendant's motion is denied.
Alleged Perjured Testimony
Defendants move to strike the testimony of government witnesses Thomas DelGiorno, Nicholas Caramandi, and Michael Madgin on the ground that their testimony was perjurious and based upon contingent plea agreements. The Court finds this argument meritless.
The Supreme Court has held that a defendant is denied due process if the government knowingly introduces perjured testimony to obtain a conviction. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). The government need not solicit false evidence; it is sufficient if the government allows the evidence to go uncorrected when it surfaces. Id. at 269-70. The burden of establishing the perjury is on the defendants. United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987). The defendants must show more than mere inconsistencies in testimony by government witnesses; the defendants must meet the heavy burden of showing that the testimony was knowingly false. Id.
Error in Conduct of Trial
Defendants argue that throughout the trial the Court showed "partisanship" toward the government attorneys and "disdain" toward defense counsel. Specifically, defendants assert that upon defense objections the Court repeatedly made hostile facial expressions and responded in an antagonistic tone of voice. Defendants argue that this conduct had a chilling effect on defense counsel and deprived defendants of a fair trial. The Court finds these sweeping arguments frivolous and entirely without merit.
Under F.R.Crim.P. 34,
defendants argue that racketeering acts three (Falcone Murder) and twelve (Testa Murder) of this indictment fail to charge an "act or threat involving murder . . . chargeable under state law" because all defendants charged with the murders of Vincent Falcone and Salvatore Testa were acquitted in state court. Defendants argue that where a jury acquits a defendant of substantive charges, the identical charges can not constitute a predicate act "chargeable under state law." 18 U.S.C. 1961(1). Thus, defendants argue that RICO does not permit inclusion of the Testa and Falcone murders, and that such inclusion places them in double jeopardy. The Court disagrees.
The double jeopardy clause of the Fifth Amendment provides that no person shall be "subject to the same offense to be twice put in jeopardy of life or limb." The Supreme Court has held that successive prosecutions by different sovereigns does not violate defendant's Fifth Amendment rights. See Abbate v. United States, 359 U.S. 187, 194, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959). An act denounced as a crime by the nation and a state is an offense against the peace and dignity of both and may be punished by both. Id. See also Rinaldi v. United States, 434 U.S. 22, 54 L. Ed. 2d 207, 98 S. Ct. 81 (1977). In United States v. Frumento, 563 F.2d 1083, 1088-89 (3d Cir. 1977), cert. denied, 434 U.S. 1072, 55 L. Ed. 2d 775, 98 S. Ct. 1256 (1978), the Third Circuit applied this principle to a federal racketeering case and concluded that the defendants were not placed in double jeopardy after a jury acquitted them in Philadelphia Municipal Court on extortion charges and later a jury found them guilty in federal court for violating RICO. The court expressly rejected the argument that an act must be "chargeable and punishable" under state law: RICO requires "only that the conduct on which the federal charges is based be typical of the serious crime dealt with by the state statute, not that the particular defendant be 'chargeable under State law' at the time of the federal indictment." Id. at 1087, n. 8. In the instant matter, defendants were charged with and found guilty of the federal crime of "racketeering," not the state offenses per se. The state offenses are merely definitional. See Id. at 1087. Thus, because the Falcone and Testa murders merely define part of the pattern of racketeering activity, defendants were not placed in double jeopardy. Defendants' motion is denied.
Defendant Joseph Ciancaglini also raises a double jeopardy argument. In his pretrial motions, because a jury previously convicted Ciancaglini of a RICO conspiracy involving the same enterprise, he moved to dismiss counts one and two of the indictment under the double jeopardy clause of the Fifth Amendment. This Court denied defendant's motion, and defendant appealed to the Third Circuit. In United States v. Ciancaglini, 858 F.2d 923 (3d Cir. 1988), the Third Circuit affirmed this Court's decision denying the defendant's motion. After conviction, Ciancaglini again raises his double jeopardy argument. We remain unpersuaded.
Defendant predicates both his pretrial and posttrial motions on a series of underlying facts: (1) both the 1981 indictment (Testa) and the 1988 indictment (Scarfo) involve Philadelphia-based crime families and both allege enterprises with the same goal; (2) the period of the conspiracy charged in Testa (June, 1972 until June, 1978) overlaps by approximately two years the conspiracy charged in Scarfo (April, 1976 to October, 1987); (3) one of the racketeering acts in the Scarfo indictment occurred within the period of the overlap; (4) five of the 123 overt acts charged in Scarfo occurred within the period of the overlap, two of which were alleged in the Testa indictment; (5) Ciancaglini is the only defendant named in both indictments.
Citing United States v. Liotard, 817 F.2d 1074 (3d Cir. 1987), the Third Circuit applied a "totality of the circumstances test" to evaluate the merits of a conspiracy defendant's double jeopardy claim. Ciancaglini, 858 F.2d at 927. The court held that to give rise to a double jeopardy claim, a successive RICO charge must allege both the same enterprise and substantially the same pattern of racketeering activity. Id. at 928. Applying the totality of the circumstances test, and examining all the factors Ciancaglini cited in support of his contention, the court concluded that the two indictments charged distinct RICO violations: The pattern of racketeering activity
"charged in the Testa indictment focus on illegal gambling and extortion. Those charged in the Scarfo indictment focus on murder and drug distribution. Although there is some overlap similarity and some time overlap in the two indictments, Ciancaglini's dual involvement is minimal. They allege different and distinct patterns of racketeering activity."
Defendants argue that under F.R.Crim.P. 34
the Court should arrest judgment on the grounds of prosecutorial misconduct. In support of this contention, defendants raise several arguments: (1) the prosecution illegitimately sought to corrupt the jury by conveying to them that defendants were dangerous criminals and that a conviction was necessary to the health and safety of the jurors; (2) the prosecution improperly attested to the bravery of witnesses and vouched for their honesty and integrity; (3) the prosecution made prejudicial closing remarks concerning individual defendants and concerning the evaluation of evidence; and (4) the prosecution improperly treated Mr. Simone and Mr. Santaguida. We find all of these arguments meritless.
The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor; prosecutorial misconduct alone does not require a new trial. Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982). The Third Circuit instructs us to inquire whether the prosecutor's remarks
"in the context of the entire trial, were sufficiently prejudicial to violate the defendant's due process rights" United States v. Scarfo, 685 F.2d 842, 848-49 (3d Cir. 1982), cert. denied, 459 U.S. 1170 [74 L. Ed. 2d 1014, 103 S. Ct. 815] (1983). "A conviction will be reversed only in those situations in which prejudice inures to the defendant from the challenged improprieties." United States v. Somers, 496 F.2d 723, 737 (3d Cir.), cert. denied, 419 U.S. 832 [42 L. Ed. 2d 58, 95 S. Ct. 56] (1974).
United States v. Adams, 759 F.2d 1099, 1111 (3d Cir.), cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985). See also United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1194 (3d Cir. 1984), cert. denied, 470 U.S. 1029, 84 L. Ed. 2d 785, 105 S. Ct. 1397 (1985).
We first note that with regard most of the prosecutorial misconduct arguments defendants raise, the defense has neither pointed to, nor can we find, any objection at trial to this alleged prosecutorial misconduct. Unless it would be plain error not to order a new trial based on prosecutorial misconduct, the failure to object at trial the government's remarks is fatal. United States v. DiPasquale, 740 F.2d 1282, 1296 (3d Cir. 1984), cert. denied, 469 U.S. 1228, 84 L. Ed. 2d 364, 105 S. Ct. 1226, 105 S. Ct. 1225 (1985). We will, however, for the sake of completeness, consider defendants' arguments to determine whether the Court committed either error or plain error.
With regard to defendants' first contention, we find that the government did not improperly offer the testimony concerning witness relocations, living conditions, and admissions into the Witness Security Program to demonstrate witnesses' fear or to vouch for their credibility. Rather, the government properly offered the testimony in reasonable anticipation of cross examination. See United States v. Frankenberry, 696 F.2d 239, 242-43 (3d Cir. 1982), cert. denied, 463 U.S. 1210, 77 L. Ed. 2d 1392, 103 S. Ct. 3544 (1983) (testimony that a witness is in the Witness Security Program and has received substantial benefit may be elicited during direct examination to counter defense suggestions that his testimony is biased). Apart from the issue of witness relocation, the government offered testimony of witnesses' fear to help explain the reasons why the witnesses cooperated. This was also a fair and reasonable anticipation of cross examination. As the government argues, it was abundantly clear from defendants' opening arguments and from prior trials involving similar issues, that the defense would attack the witnesses' credibility based on money the government spent on their behalf. For example, in his opening statement, concerning the treatment of witnesses DelGiorno and Caramandi, Mr. Goodman told the jury that
when they want liquor, the evidence is going to show they get liquor. When they want to get paid for their testimony, the evidence is going to show they get paid for their testimony. . . . And the evidence is going to show that they're not in some kind of a prison, but they're down by the beach having a better life than you folks are going to have for the next three months. . . . Now I submit to you that at the conclusion of all the testimony, you're going to be convinced that this type of pact with those type of people invites perversion of the truth.
(Tr. 9/29/88 at 40-42). Similarly, in his opening, Mr. Simone referred to the credibility of the witnesses in light of their custody: "they spent hundreds of thousands of dollars wining and dining these people . . . and then you're going to judge their testimony which you will know to be untrue and incorrect." (Tr. 9/28/88 at 126-27).
Again, the defense does not cite to any objection on the record concerning the testimony of the witnesses in this area. Even had they objected, admission of this testimony would have been proper. In United States v. Scarfo, 850 F.2d 1015, 1018 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988), a Hobbs Act prosecution concerning the Rouse extortion (racketeering act thirty-nine in this case), the trial court permitted the prosecution to establish that (1) Caramandi and DelGiorno had committed certain crimes, including murders ordered by defendant Scarfo; (2) breaking the rules of La Cosa Nostra could result in a death sentence; and (3) Caramandi and DelGiorno believed their lives had been threatened. The Third Circuit held that this testimony was admissible for the reasons stated by the district court: to show Scarfo's leadership in the mafia, to show the grave consequences of conducting unapproved criminal activities, and to explain why DelGiorno and Caramandi began to cooperate despite the potential consequences they would suffer for betraying the Mafia. Id. at 1018. The court held that this testimony, while potentially damaging to the defendants, was "essential in the government's effort to establish the credibility of its disreputable, yet indispensable, witnesses." Id. at 1020. In the instant matter, the testimony was necessary to establish the witnesses' credibility, and was relevant in proving the existence of the RICO enterprise and some of the crimes charged. We find no prosecutorial misconduct in the elicitation of this testimony.
Defendants also argue that the government improperly vouched for the credibility of its witnesses. In support of this argument, defendants cite Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967), in which the court awarded the defendant a new trial where the prosecutor said at trial,
The government representatives don't put a witness on the stand unless there appears to be some credibility, until he appears to be a truthful witness.
Certainly the government has every opportunity to check out and to judge the credibility and truthfulness of Mr. Zane and Mr. Gilmore in this case, and in that context, we offered you their testimony.
Id. at 709-10 (emphasis omitted). Although that type of comment was clearly improper, the government's conduct in the instant matter is clearly distinguishable. First, the government made no such argument in our case. Second, to the extent that the prosecution bolstered the credibility of its witnesses, it did so as an appropriate response to defense attacks on the integrity of the prosecution. Throughout the trial, the defense suggested that the government manufactured the testimony of the cooperating witnesses, telling them exactly what to say regardless of its truth or falsity. The prosecution was within its rights in responding to this attack by eliciting rebuttal testimony from FBI witnesses and arguing in closing that the evidence indicated that FBI witnesses spoke the truth.
See DiPasquale, 740 F.2d at 1296 (prosecutor may not abuse the prestige of his office, but "principle of prosecutorial restraint does not free a defense attorney to argue with impunity that the government wrote and directed a play"). Thus, we find no evidence of prosecutorial misconduct.
Defendants also claim that during its closing, the prosecution made prejudicial references to them. Specifically, the defense takes issue with Mr. Pichini's reference to Francis Iannarella as a "cold-blooded killer," Mr. Gordon's reference during rebuttal, to the defendants as "Mafia killers," and an alleged reference to Phillip Narducci as a "baby-faced killer."
A prosecutor's characterization of a defendant does not justify the granting of a new trial where the characterization is supported by the evidence and, in the context of the trial as a whole, produces no significant prejudice to the defendant. United States v. Taxe, 540 F.2d 961, 967-68 (9th Cir. 1976) (prosecutor's characterizations of defendant as a "scavenger", parasite", "fraud", and "professional con man", supported by the evidence and thus not prejudicial), cert. denied, 429 U.S. 1040, 50 L. Ed. 2d 751, 97 S. Ct. 737 (1977). See also United States v. Malatesta, 583 F.2d 748, 759 (5th Cir. 1978) (prosecutor calling defendant a "con man" and "hoodlum" supported by the evidence), cert. denied, 440 U.S. 962, 59 L. Ed. 2d 777, 99 S. Ct. 1508 (1979); United States v. Williams, 726 F.2d 661, 664 (10th Cir.) ("drug smuggler"), cert. denied, 467 U.S. 1245, 82 L. Ed. 2d 830, 104 S. Ct. 3523 (1984); United States v. Ong, 541 F.2d 331 (2d Cir. 1976) ("Chinatown's chief corrupter for 20 years"), cert. denied, 430 U.S. 934, 51 L. Ed. 2d 780, 97 S. Ct. 1559 (1977). In the instant matter, the references were clearly supported by the record.
Direct testimony from government witnesses suggested that defendants Iannarella and Narducci fatally shot several victims. For example, according to witnesses, Iannarella shot Robert Riccobene in the presence of Riccobene's mother who was screaming in horror, and then Iannarella smashed the mother in the head with his shotgun. (Tr. 11/11/88 at 115). In addition, the evidence suggested that Iannarella was involved in three other murders, and in one of these murders, he shot John Calabrese in the back. It would certainly be fair to characterize one who committed such acts as "cold-blooded." With regard to the reference to "Mafia killers," witnesses identified each defendant as a made member of the Mafia who participated in at least one (and usually several) Mafia-ordered murders or attempted murders. Again, based on the evidence, the prosecution fairly characterized them. In spite of these fair characterizations, the Court offered to give a cautionary instruction, and the defense declined. In addition, after making his comment about Iannarella, Mr. Pichini reemphasized that nothing in his closing argument was evidence; the closing, he stated, simply represents what the government submits the evidence to have shown. (Tr. 11/11/88 at 127). In the charge the Court told the jury:
I also would like to add that when I told you that you should not act out of bias or prejudice that you should not let any reference to things like murders, killings, the mafia, terms like racketeering, arose (sic) any passion or prejudice, just because those are words used in some of the acts, some of the crimes that are charged.
But you should consider the elements of the crimes to determine whether or not they're proven beyond a reasonable doubt. You should not let those terms arose (sic) any passion or prejudice.
(Tr. 11/17/88 at 31-32). The defendants were apparently satisfied with this instruction, and did not request further explanation or modification. We find no prosecutorial misconduct.
Defendants also argue that the government's treatment of Mr. Simone amounted to prosecutorial misconduct. Specifically, the defense asserts that (1) the government introduced photographs in which Simone appears with various defendants; (2) that government witnesses alleged that Simone engaged in unlawful conduct; and (3) that the prosecutor in his rebuttal argument made a comment about Simone appearing in one of the photographs. Defendants claim that these actions "caused severe and undue prejudice and hostility" toward defendants and lead defense counsel, depriving all defendants of a fair trial. We disagree.
By way of background information, racketeering act thirty-nine, in counts one and two of the instant indictment, charged defendants Scarfo and Iannece with the Hobbs Act extortion of Willard Rouse and Associates. In an earlier trial in May, 1987, a jury convicted Scarfo of this extortion. See United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988). Iannece was a fugitive at the time, and the government had never prosecuted him in connection with the Rouse extortion. In a separate federal trial earlier in 1987, a jury convicted former Philadelphia City Councilman Leland Beloff and his legislative aide Robert Rego, coconspirators in the Rouse extortion with Scarfo and Iannece. The testimony of cooperating government witnesses Thomas DelGiorno and Nicholas Caramandi was central to the convictions of all four men. Beyond implicating Scarfo, Iannece, Beloff, and Rego, however, DelGiorno and Caramandi also implicated Mr. Simone, both as a conduit between the coconspirators for receiving instructions and supervision and as a person who was to share a split of the extortion proceeds. It was clear to all concerned, at least by the end of the Beloff and Rego prosecution, if not sooner, that the testimony of DelGiorno and Caramandi, if believed, established Mr. Simone as an unindicted coconspirator in the Rouse extortion scheme.
Accordingly, before the Scarfo trial, the government filed a motion to disqualify Mr. Simone from representing Scarfo. Chief Judge Fullam, who had presided over the Beloff and Rego trial, concluded as follows:
(a) based on the evidence at the trial of Beloff and Rego, Mr. Simone should reasonably anticipate the need for his testimony as a witness at trial;
(b) testimony was offered at the Beloff trial that showed Mr. Simone to have been involved in the extortion scheme;
(c) the motion presents a problem of balancing the Code of Professional Conduct with Scarfo's Sixth Amendment right to counsel of his choice; and
(d) the constitutional provision takes precedence and Scarfo may continue to have Mr. Simone represent him, but:
(i) Mr. Simone may not cross-examine any witness who testifies concerning his involvement in the Rouse extortion, and
(ii) Mr. Simone will not be permitted to argue to the jury concerning the credibility of any witness who identified him as implicated in the extortion.
United States v. Scarfo, 1987 U.S. Dist. LEXIS 6698, No. 86-00453-04, hearing at 9-13 (E.D.Pa. April 14, 1987). Scarfo elected to continue to have Mr. Simone represent him. Miles Feinstein appeared with Mr. Simone as co-counsel, the defense followed Chief Judge Fullam's ruling, and Mr. Feinstein performed those representational functions from which the Court foreclosed Mr. Simone.
In the instant matter, the same tension between the Code of Professional Conduct and Scarfo's Sixth Amendment rights arose because the Rouse extortion appeared in the indictment as a racketeering act. The government moved pretrial for the Court to place the same restraints on Mr. Simone's representation of Scarfo. Mr. Simone argued against the imposition of such strict limitations and other defense counsel supported him. No defendant supported the government's motion, and no defendant asked for a severance based upon possible prejudice resulting from Mr. Simone's participation in the trial.
This Court ruled somewhat more liberally than Chief Judge Fullam. The Court allowed Mr. Simone to cross-examine DelGiorno and Caramandi but admonished him not to inject his own credibility into the proceedings. Likewise, the Court permitted Mr. Simone to make closing argument with the same restriction. (Tr. 9/9/88 at 51, 56). In addition, the Court colloquied Defendant Scarfo. After extensive discussion, Scarfo waived the right to call Mr. Simone as a witness, stated that he wanted Simone's representation although it could be limited and although Simone might be admonished, and stated that he understood that Simone might face a conflict of interest in the sense of protecting himself from accusations by witnesses to the possible detriment of Scarfo. (Tr. 9/9/88 at 52-57). The Court fully represented to Scarfo the risks inherent in allowing Simone to proceed as his counsel, but Scarfo adamantly declared that he wanted Simone as his attorney.
The government also pointed out that some of its evidence consisted of photographs in which Mr. Simone appeared. No defendant objected at this time, and Scarfo understood that the Court would not permit his attorney to testify through speeches or questions as to his version of what was happening in these pictures. (Tr. 9/9/88 at 56-57). Defendants now contend that the government used photographs showing Mr. Simone with one or more of the defendants to prejudice the jury as to Simone's integrity, thereby causing the jury to discredit counsel's cross-examination and arguments.
The government introduced over five hundred photographs in this case. Most of these photographs depicted groups of two or more defendants to show their association in fact. Mr. Simone, who was not a defendant, but who was implicated as a participant in the Rouse extortion, was depicted and identified in exactly four photographs in this trial.
Government Exhibit 656 was a photograph depicting defendants Leonetti and Virgilio, Robert Simone, and two other individuals outside Scarf, Inc. (Scarfo's concrete contracting company in Atlantic City, New Jersey) on June 15, 1986. Before admitting the photograph, the Court held a side bar at which the government made an offer of proof concerning Mr. Simone's depiction in the picture. The prosecutor noted that the picture showed Simone at Scarf, Inc. at the time of the Rouse extortion and, therefore, corroborated Caramandi's testimony concerning Simone's participation in the scheme. The Court agreed that the photograph had heavy probative value, implicitly outweighing the danger of unfair prejudice. After the sidebar, the defense appeared satisfied with the Court's resolution. (Tr. 10/7/88 at 10). The government then offered Exhibit 656, and the witness identified Leonetti, Virgilio and Simone without objection. Later, the Court admitted it without objection. (Tr. 10/7/88 at pp. 43-44, 83). Before its admission, Mr. Simone cross-examined the agent witness through whom the photo was admitted:
You've already acknowledged that there's nothing wrong with a lawyer . . . being seen with his client, that ...