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Evidence of a defendant’s membership in an organized crime family may be introduced to explain a plot to obstruct justice, the 2nd U.S. Circuit Court of Appeals has ruled. In a victory for Eastern District prosecutors, the 2nd Circuit said that hearsay statements showing that two defendants belonged to the Colombo crime family were properly admitted to show how the men schemed to hide a key witness in a jury tampering investigation. The ruling in United States v. Russo, 99-1481, upheld the convictions of Andrew Russo and Dennis C. Hickey for obstruction of justice. The investigation focused on the so-called Persico trial, a 1994 racketeering and murder case in which Andrew Russo’s son, Joseph, and four others accused of being members of the Colombo family were convicted. It was called the Persico trial because the men were reportedly working for Carmine Persico, the reputed head of the Colombo family in 1994. During the trial, in which the identity of the jurors was kept secret, an alternate juror informed Judge Charles P. Sifton that she recognized a spectator, Teresa Castranova, who was apparently associated with Joseph Russo. Although the alternate juror was not involved in deliberations, private investigator Nicholas Vasile attempted to contact the alternate after the trial though the juror’s mother. When the alternate’s mother told Judge Sifton about the attempt, the judge informed the U.S. Attorney’s Office, which convened a grand jury to investigate the case. Vasile admitted to trying to contact the juror, but claimed he had obtained the alternate’s name from a man he did not know. The FBI searched for Castranova, who had been recognized by the alternate, for one year without success. But through the testimony of Andrew Russo’s mistress, as well as a cooperative, imprisoned member of the Colombo family, video surveillance and taped prison conversations between Andrew Russo, Joseph Russo and Hickey, agents learned that Castranova had been sequestered at Hickey’s horse farm on Long Island. Trial Judge David G. Trager allowed evidence from the mistress that Andrew Russo “told” her he was being made a boss in the family. The cooperating witness was allowed to testify that he was “told” by someone else that Andrew Russo held the rank of captain. The witness also said that Joseph Russo had told him “Dennis Hickey was with him and his father,” referring to being part of the Colombo family. Although Trager was careful to instruct the jury that simple affiliation with the Colombo family was insufficient to convict the defendants, both men claimed on appeal that the evidence was irrelevant and prejudicial. HEARSAY EXCEPTION But more importantly, they said the statements of the cooperating witness were inadmissible because they did not fall within the exception for hearsay statements made by a co-conspirator in furtherance of the conspiracy under Federal Rule of Evidence 801(d)(2)(E). This exception, they argued, was sharply limited by the 2nd Circuit in United States v. Gigante, 1666 F.3d, 75 (2d. Cir. 1999.) In that case, Vincent “The Chin” Gigante, head of the Genovese family, was convicted of racketeering in a 1997 trial. Writing for the 2nd Circuit, Judge Pierre N. Leval said the evidence of Russo’s and Hickey’s relationship with the crime family was “relevant in several ways.” For example, he said, “Without this evidence explaining the organized affiliation between Hickey, Andrew Russo, Joseph Russo, and the other defendants in the Persico trial, Hickey’s harboring of Castranova on his farm might have had the appearance of simple hospitality.” As to the hearsay statements, Leval said, the defendants had “seized on an isolated statement in Gigante, taken out of context” and argued that “joint membership in a criminal organization can NEVER serve” as the basis for the co-conspirator exception. In Gigante, the trial court allowed hearsay statements on conversations between various Mafia families about their desire to kill a man named Corky Vastola. The trial court found that the co-conspirator exception applied because of “a general overriding conspiracy among all of these alleged Mafia groups.” But the 2nd Circuit said “the general existence of the Mafia does not suffice” to support the exception, and the district court’s rationale “would allow the admission of any statement by any member of the Mafia regarding any criminal behavior of any other member of the Mafia [against the latter].” Judge Leval said, “ Gigante did not purport to establish an arbitrary rule excluding conspiracies to operate a criminal organization from eligibility to serve as the basis for the co-conspirator-in-furtherance exception. It merely required that the conditions for the exception be observed.” And he said the statements here were “quite different from the statements discussed in Gigante.” The Gigante statements, he said, were about a planned murder, but Vincent Gigante was not involved with speakers in the murder conspiracy. “Here, in contrast, the defendant and the declarant were involved together in a conspiracy to maintain an organized crime syndicate, and the declarant’s statement furthered the maintenance of the syndicate by giving associated persons information about its membership,” he said. “Such an organization cannot function properly unless its members and persons who do business with it understand its membership, leadership and structure.” Judges Chester J. Straub and Robert A. Katzmann joined in the opinion. Herald Price Fahringer and Erica T. Dubno of Lipsitz, Green, Fahringer, Roll, Salsibury & Cambria represented Russo. John W. Mitchell represented Hickey. Assistant U.S. Attorneys Daniel S. Dorsky and David C. James represented the government.

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