filed: December 12, 1991; As Corrected December 13, 1991.
On Appeal from the United States District Court for the District of New Jersey. (D.C. Crim. Nos. 89-00380-01 & 89-00380-04).
Before: Cowen, Nygaard, Circuit Judges, and Pollak, District Judge*fn*
Defendants John M. Riggi, Sr. and Salvatore Timpani appeal their convictions on a variety of charges stemming from alleged connections with the Mafia. Riggi was charged in a thirty-three count indictment with racketeering and committing acts of extortion while serving as a labor union official and consultant. He was convicted on eight counts of the indictment, including violations of the Hobbs Act, 18 U.S.C. § 1951 (1988), and Taft-Hartley Act, 29 U.S.C. § 186(b) (1988). He was acquitted on the remaining counts, including charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961 et seq. (1988), that he was the "acting boss" of the DeCavalcante crime family. Timpani was convicted on a single Hobbs Act extortion charge.
Riggi and Timpani challenge their convictions on several grounds. We find it necessary only to deal with the issue of the defendants' right to recross-examine witnesses following redirect examination by the government. Because the erroneous restriction of recross-examination resulted in a violation of defendants' rights under the Sixth Amendment, the convictions must be reversed and a new trial ordered.
Riggi and four others were tried in 1990 on charges arising from their alleged connection with the Mafia. Only Riggi and Timpani were convicted. Riggi was convicted of Taft-Hartley and Hobbs Acts violations based on his conduct in connection with four contractors: Crosby's Heating Service, Akron Construction Corp., Moser Brothers Mechanical Contractors, and J.P. Sasso Inc. Timpani was convicted of a Hobbs Act violation for his conduct in connection with Crosby's Heating Service. The following facts form the basis for these convictions.
Billy Crosby operated a construction contracting business. In 1980, Crosby hired a part-time mechanic, Charlie Alfano, who introduced Crosby to Timpani. Timpani would come by the workplace to visit Alfano and the two would talk about "getting work for Crosby." Crosby attended Alfano's wedding, where he met Riggi. Riggi told Crosby that he could get him a substantial amount of work, but that arrangements would have to be made through Timpani.
In late 1980, an "agreement" was reached pursuant to which Crosby would pay a five percent "commission" to Timpani and a ten percent "commission" to Riggi for work directed to Crosby. Crosby was told to put Timpani on the payroll, which he did, although Timpani did not work regular hours. Crosby was indirectly threatened a number of times, leading him to believe that he could not disassociate himself from his new acquaintances without putting himself in jeopardy.
Crosby intermittently performed construction work on the homes of Riggi and his family without full, and in some cases any, compensation. The record indicates that Riggi and his associates slowly took control of Crosby's business. Although Crosby came to be accepted by Riggi, Alfano and Timpani, he was afraid of them. His fear was well founded: Timpani told him that once he was in with them, there was no getting out. The only way out, Timpani told Crosby, was to be dumped in the bay with his feet encased in concrete.
In 1982, at Riggi's direction, Crosby explored placing a bid on a contracting job. When one of the architects demanded a new Cadillac from Crosby, he went to the FBI and agreed to wear a recording device and have one installed in his office. The architect was not associated with Riggi or Timpani, but Crosby recorded his conversations with Riggi and Timpani as well. The resulting recordings corroborate Crosby's testimony that Riggi and Timpani dominated him. Crosby continued to make payoffs to Riggi and Timpani through 1985. Both Riggi and Timpani were convicted of extorting Crosby under the Hobbs Act, 18 U.S.C. §§ 1951, 1952.
B. Akron Construction Company.
Leonard Teitel and Michael Castro formed Akron Construction Company as a general contractor to supplement their existing business, Autotron Electric. They consulted Riggi before forming the new business because they wanted to avoid labor problems. At Riggi's direction, Teitel and Castro made Joseph Merlo a full partner in Akron Construction, although neither of them knew Merlo previously. Merlo was paid a salary in connection with the only job Akron Construction performed, though Merlo's only work was to show up on the job site four or five times. The check paid to Merlo was endorsed to a pizzeria which Riggi's wife and Merlo's son owned.
Teitel also performed unpaid work for Riggi, his friends, and associates. Riggi was convicted of two counts of extortion in connection with these activities, under the Taft-Hartley Act, 29 U.S.C. § 186(b)(1), and the Hobbs Act, 18 U.S.C. § 2 (1988).
C. Moser Brothers Mechanical Contractors.
Moser Brothers used Riggi's influence to obtain a sweetheart contract. The principal benefit of this arrangement was that Moser was able to use nonunion laborers for $5.50 an hour, instead of the prevailing wage of $12.50 an hour. Riggi was videotaped accepting a payment from Moser, and convicted of extortion under the Hobbs Act, 18 U.S.C. § 2, and Taft-Hartley Act, 29 U.S.C. § 186(b)(1).
J.P. Sasso, Inc. was a construction contractor that employed members of Riggi's local union. Although Riggi did not formally own any interest in Sasso, conversations recorded at a cafe frequented by Riggi reveal that he was truly in control of the business. Riggi made it clear to Sasso that Riggi was in control: "From now on anything you do, comes through me." App. at 713.
The fact that Riggi was extorting Sasso can be inferred from several other facts. Over a period of time, Sasso's ostensible owner, Joseph Sasso, made large and unexplained gifts to Riggi's daughter and son-in-law. In addition, Sasso inexplicably assigned valuable interests in various partnerships to Riggi's daughter and son-in-law. Riggi was convicted of extortion in connection with these transactions under the Hobbs Act, 18 U.S.C. § 2, and Taft-Hartley Act, 29 U.S.C. § 186(b)(1).
The trial in this matter began on May 21, 1990, and lasted approximately eight weeks. At trial, the district court announced a blanket rule that there would be no recross-examination. Defendants objected vigorously. Over time and after continued protest, the district court relented, little by little, until it eventually lifted its absolute bar. The district court eventually permitted limited recross upon request and, even then, subject only to offers of proof. Such limited cross-examination as the district court permitted did not occur, however, until after thirteen witnesses were examined on redirect without further recross.
One of these thirteen, Ronald Fino, was a key witness for the prosecution whose testimony on redirect examination may have been dispositive on some counts. Fino was a significant government witness who, on redirect examination, gave new and damaging testimony against appellant Riggi. Fino was one of only two witnesses who gave testimony directly supporting the government's thesis, which pervaded the indictment, that Riggi was "acting boss of the DeCavalcante crime family." App. at 1006. Fino's testimony to that effect came out for the first time on redirect examination. Although some organized crime affiliation by Riggi could be gleaned from Fino's testimony on direct examination, his testimony could have been interpreted to mean that Riggi was simply a union leader under the control of organized crime.
Two new matters arose on redirect examination of Fino which were not permitted by the district court to be subjected to recross. First, Fino referred to "suffering" he experienced as a result of disassociating himself from organized crime and cooperating with the FBI. Second, he specifically identified Riggi as the "boss or the acting boss of the DeCavalcante family." Defense counsel were barred from recrossing Fino in both areas.
The first new matter arose on redirect examination in the following manner:
Q. Mr. Fino, do you remember on cross-examination saying something to the effect that you feel that you're currently suffering? Do you remember using that word, "suffering"?
Q. What did you mean by that?
A. Well, I lost everything I had. I lost my family, I lost my normal way of life. I cannot function as a normal human being any more. I cannot go into cities, I cannot go to ball games. There's things I just cannot do.
The second, and more important "new" area opened on redirect was:
Q. Do you recall on cross-examination you said that you had described John M. Riggi as a quiet and humble man? Do you recall those words?
Q. In fact, during the time when you knew John M. Riggi, were you aware of John M. Riggi's position in organized crime?
Q. How were you aware of John M. Riggi's position in organized crime?
A. I don't know how at first I became aware of it. Probably my father or Sam Pieri. But I was always aware.
In fact, I was aware, you know, of his achieving a higher rank when it happened. I was told that, too.
Q. A higher rank in what?
Q. And when you say your father or Sam Pieri, what conversations are you referring to?
A. We had -- I had conversations with my father and Sam Pieri on numerous occasions over organized crime in the country, Buffalo, other areas, who was part of it.
Q. Was John M. Riggi discussed?
Q. What were you told about John M. Riggi?
A. At first, I was told when he was just a soldier or a capo, I don't recall which one, but he wasn't boss then.
Q. And then were you later told ...