United States v. John F. Long and John S. Mahoney, 917 F.2d 691, 2d Cir. (1990)
United States v. John F. Long and John S. Mahoney, 917 F.2d 691, 2d Cir. (1990)
United States v. John F. Long and John S. Mahoney, 917 F.2d 691, 2d Cir. (1990)
2d 691
135 L.R.R.M. (BNA) 2812, 117 Lab.Cas. P 10,417,
RICO Bus.Disp.Guide 7609,
31 Fed. R. Evid. Serv. 526
Colleen P. Cassidy, The Legal Aid Soc., New York City, for defendantappellant John F. Long.
Lawrence M. Stern, New York City, for defendant-appellant John S.
Mahoney.
Joan McPhee, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty.,
S.D.N.Y., Jonathan Rosenberg, Asst. U.S. Atty., of counsel), for appellee.
Before OAKES and WINTER, Circuit Judges, and MUKASEY,* District
Judge.
WINTER, Circuit Judge:
Appellants John F. Long and John S. Mahoney were Teamsters officials in New
York City who allegedly misused their offices for private profits. After a
twelve-week jury trial before Judge Edelstein, they were convicted of
participating in and conspiring to participate in a racketeering enterprise in
violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. Secs. 1962(c) and (d) (1988), and a variety of other substantive
crimes connected with or arising out of the racketeering activity.
Appellants raise numerous issues, including errors in instructions to the jury,
BACKGROUND
3
In 1979, Rotondo arranged for a contractor, Ben Parness, with whom Rotondo
had an extortionate relationship described infra, to introduce Hyman to Long,
the Secretary-Treasurer of Teamsters Local 804 in New York City. Hyman
indicated to Long that he was a partner of Rotondo, and Rotondo attended a few
meetings between Hyman and Long. Hyman proposed a dental plan for Long's
union and requested that Long suggest other Teamsters locals that might be
interested in dental plans or pension funds.
7
The alleged pattern of racketeering activity, see 18 U.S.C. Secs. 1961(1) and
(5), consisted of nine racketeering acts, five involving Long alone, one
involving Mahoney alone, and three involving Long and Mahoney.2 All but
three of the nine acts occurred outside the limitations period and must, under
RICO, see infra, be related to at least one of the three acts within the period to
be valid predicate acts.
Racketeering Act One, which occurred outside the limitations period, charged
Long with receiving at least $2,000 in kickbacks in 1981 for arranging for
Teamsters Local 804 to invest funds in Penvest, a pension fund management
company. Hyman testified that he agreed to pay Long a one percent cash
kickback for monies invested by Local 804 in Penvest. After Long gave Hyman
a check for $100,000 for Penvest, Hyman gave Long $2,000 in cash, or a two
percent kickback, to encourage Long's continuing participation in the scheme.
According to Hyman, eight or nine months later, Long invested additional
Local 804 money with Penvest, and Hyman gave Long $1,000 in cash.
10
Racketeering Act Two, also outside the limitations period, charged Mahoney
with receiving kickbacks between April 1982 and February 1983 in the form of
cash and a bank loan in return for investing Local 808 funds with Penvest. That
Act also charged Long with aiding and abetting Mahoney's wrongdoing by
persuading Mahoney to make the investment and by accepting $5,000 from
Hyman for vouching for Hyman to Mahoney. According to Hyman's testimony,
Hyman offered Mahoney one percent of the total of union pension fund money
invested with Penvest and assured Mahoney of making $30,000 to $40,000 per
year. Hyman also testified that Mahoney had stated that he needed money to
renovate a new home. Hyman said that he would give Mahoney $10,000 in
cash up front and enable Mahoney to get a home improvement loan for the
balance.
11
When the first investment installment was transferred to Penvest in the spring
of 1982, Hyman gave Mahoney $10,000 in cash. Hyman also paid Long $5,000
in cash for introducing Hyman to Mahoney and made cash payments to
Rotondo and Riggi. In addition, Hyman testified that he arranged for Mahoney
to receive a $20,000 home improvement loan from Sterling National Bank 3 and
gave Mahoney approximately $700 per month in cash to cover the payments on
that loan until February 1983.
12
Racketeering Act Three, again outside the limitations period, charged Mahoney
with receiving a $5,000 cash payment in December 1982 for agreeing not to
remove Local 808 funds from Penvest. Long also was charged in Act Three
with aiding and abetting Mahoney's receipt of the $5,000 and with receiving
$2,000 himself for his efforts to persuade Mahoney to keep the pension fund
money in Penvest. During the summer of 1982, Local 808 officials had
complained about Penvest's failure to provide financial reports and other
documentation regarding Local 808 pension funds. In the fall, Mahoney wrote
to Penvest requesting that all funds and assets belonging to the union pension
fund be returned. Hyman testified that he contacted Long and asked Long to
help persuade Mahoney not to withdraw the funds. Hyman testified that on
December 6, 1982, he paid Mahoney $5,000 in cash and assured Mahoney that
the union would get the financial reports it needed. Mahoney then indicated
that the local would make an additional investment in Penvest of $100,000.
Hyman testified that shortly after this matter was resolved with Mahoney,
Hyman gave Long approximately $2,000 in cash. Penvest received an
additional $100,000 investment from Local 808 in early 1983.
13
Racketeering Act Four, also outside the limitations period, charged Long with
receiving kickbacks in 1981 for persuading an official in Teamsters Local 277
to invest union pension funds in American Asset Management Company
("AAMC"), another investment management fund. Hyman testified that in 1978
or 1979 he developed a relationship with various employees of a New York
City brokerage house who would handle stock trading for pension funds
managed by AAMC. Hyman and one broker agreed that they would split the
broker's commissions. A one percent cash "fee" to the union people who
assisted Hyman in getting the funds invested with AAMC would be covered out
of the pension fund management fees. Hyman spoke with Rotondo, Long, and
other union contacts to seek business for AAMC. According to Hyman, Long
was instrumental in getting an officer of Teamsters Local 277 interested in
AAMC, and, when Local 277 placed its pension funds with AAMC, Long
received a $2,500 cash payment from AAMC through Hyman.
14
Racketeering Act Five, also outside the limitations period, charged Long with
receiving money in 1981 for assisting Emgee Pharmaceuticals, Inc., to avoid
unionization. A principal of Emgee Pharmaceuticals had contacted Hyman
regarding threats from AFL-CIO organizers, and Hyman sought Long's
assistance in resolving the situation. Hyman testified that he later gave Long
cash for appeasing the AFL-CIO organizer and for agreeing to provide Emgee
Pharmaceuticals with a "sweetheart contract" between the corporation and
Local 804.
15
Racketeering Act Six, outside the limitations period, charged Long with
receiving payments in 1979 and 1980 for assisting the principals of Bottom
Sportswear, Inc., to avoid unionization and picketing. Hyman testified that he
paid Long $3,500 for helping Hyman resolve an attempt at union organization
at Bottom Sportswear by arranging for a sweetheart Teamsters contract in 1979
and for other assistance in 1980.
16
Racketeering Act Seven, which was within the limitations period, charged
Long with extorting payments from maintenance contractor Parness from 1978
until 1987 for assistance that Long provided in getting Parness's company a
maintenance contract with United Parcel Service ("UPS"), whose workers were
represented by Long's local. Parness, who testified pursuant to an immunity
agreement with the government, stated that in the mid-1970's he had expressed
to his friend, Long, interest in getting a janitorial contract with UPS. When UPS
was seeking to hire outside contractors, Long told Parness to write to UPS and
have his business placed on the bidding list. Parness's company submitted a bid
and got a contract in 1974. According to Parness, his payments to Long ceased
when his company went into bankruptcy in 1976, but another company he
owned took over the UPS contracts and resumed cash payments to Long in
1978. Parness testified that in 1978 he arranged to put Long's wife, Olga, on the
payroll in a "no-show" job in lieu of the cash payments to Long.
17
company. He also testified that Rotondo stated that Rotondo and Long had
jointly assisted Parness with a labor problem and partly as a result of this
assistance had gotten Rotondo and Rotondo's son-in-law on Flair Maintenance's
payroll. However, there appears to have been no evidence that Hyman ever
acted on Long's invitation to get involved in the extortion of Parness.
18
Racketeering Act Eight, within the limitations period, charged Mahoney with
obstructing a federal grand jury inquiry when he appeared before it on July 14,
1983. The government contends that Mahoney lied to the grand jury about the
events alleged in Racketeering Acts Two and Three.
19
Racketeering Act Nine, within the limitations period, charged Long with
obstructing justice by making false and misleading statements to a federal grand
jury on May 26, 1983. The government contends that Long falsely denied to
the grand jury that Hyman had offered Long money for investing union funds
in Penvest.
20
21
Long and Mahoney were convicted on the two RICO counts. Long was
convicted on Count Three and Counts Seven through Twelve of extortion,
making false declarations before the grand jury, perjury, and filing false federal
income tax returns. He was acquitted of Racketeering Act Six, the Bottom
Sportswear charge. Mahoney was convicted of making false declarations before
the grand jury (Count Four) and perjury (Count Five). He was acquitted on the
Count Six charge of perjury in a 1984 deposition.
DISCUSSION
1. The RICO "Pattern" Charge
22
Appellants argue that the district court's charge on the RICO pattern
requirement, which did not require the jury to find relatedness between at least
two predicate acts, was prejudicial error. We agree. Appellants were convicted
of violating, and conspiring to violate, 18 U.S.C. Sec. 1962(c), which provides:
23
25
At the time of trial, the law in this circuit was that the commission of two
racketeering acts furthering a RICO enterprise by themselves supplied the
elements of relatedness and continuity necessary to find a RICO "pattern."
United States v. Ianniello, 808 F.2d 184, 192 (2d Cir.1986), cert. denied, 483
U.S. 1006, 107 S.Ct. 3230, 97 L.Ed.2d 736 (1987). Judge Edelstein therefore
instructed the jury that it "need not find that these racketeering acts were related
to each other." He stated that the acts had only to be "in some way related to the
activities of the enterprise."5 These instructions were the subject of a pertinent
objection. Less than a month after appellants' convictions, this court, sitting en
banc, overruled Ianniello and held that
26 of two acts of racketeering activity without more does not suffice to establish a
proof
RICO pattern; that the concepts of relatedness and continuity are attributes of
activity, not of a RICO enterprise, and that a RICO pattern may not be established
without some showing that the racketeering acts are interrelated and that there is
continuity or a threat of continuity....
27
United States v. Indelicato, 865 F.2d 1370, 1381 (2d Cir.) (en banc ), cert.
denied, --- U.S. ----, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989); see also H.J. Inc. v.
Northwestern Bell Tel. Co., --- U.S. ----, 109 S.Ct. 2893, 2900-02, 106 L.Ed.2d
195 (1989). Under Indelicato and H.J. Inc., therefore, the government must
prove that two racketeering acts were related to each other ("horizontal"
relatedness) as well as related to the enterprise ("vertical" relatedness) and that
they resulted in or posed a threat of continuity of the criminal activity.6
28
In United States v. Tillem, 906 F.2d 814 (2d Cir.1990), and United States v.
Scarpa, 913 F.2d 993 (2d Cir.1990), we addressed pre-Indelicato instructions
based on Ianniello where defense counsel had not objected. In both cases, we
held that the instruction was not plain error calling for a reversal in the absence
of a contemporaneous objection. See e.g. Tillem, 906 F.2d at 824-26. In the
instant matter, a timely objection was made, and we must now decide whether
the failure to give an Indelicato relatedness instruction was prejudicial error.
29
The government argues that the charge as given sufficiently encompassed the
relatedness requirement of Indelicato and therefore was not erroneous. The
government's theory is that because the predicate acts had to be found to be
related to the enterprise under the instructions given, the jury necessarily found
interrelatedness among the acts. We disagree.
30
Although it may be, as the government argues, that the evidence is such that a
jury could have found the predicate acts to be interrelated, we have no
assurance that it did so, particularly since that instruction expressly stated that
the acts did not have to be related to each other but only had to be "in some way
related to the activities of the enterprise." See supra note 5. This plainly did not
satisfy the Indelicato requirements of proof of both "horizontal relatedness" and
threat of continuity of criminal activity.
31
32
The predicate acts that fall within the statutory period--Long's obstruction of
justice, Mahoney's obstruction of justice, and Long's extortion of Parness--are
the most vulnerable to a claim of horizontal unrelatedness, either to themselves
or to the various kickback charges. Indeed, our recent decision in United States
v. Biaggi, 909 F.2d 662, 685-86 (1990), held as a matter of law that the
requisite RICO pattern could not be proven simply by showing an offense and a
subsequent denial of that offense alleged as an obstruction of justice. We held
that a crime and a denial of that crime constitute only sporadic rather than
continuing criminal activity. A precise Biaggi objection--a single offense
followed by a denial of the offense cannot as a matter of law be a pattern--was
not made in the district court. However, while the legal claim of insufficiency
may have been waived, appellants preserved their right to a correct charge to
the jury on the relatedness of an offense to a subsequent denial for purposes of
proving a RICO pattern.7
33
35
The fact that only three of the alleged Racketeering Acts are within the
limitations period thus eliminates any possibility that the RICO pattern
instruction was harmless. A pattern instruction containing the horizontal
relatedness element was critical in the instant matter.
36
Long contends that the district court improperly instructed the jury regarding
the testimony of his wife, Olga Long, as a witness for the prosecution. Mrs.
Long had been subpoenaed to testify before the grand jury, and she testified at
trial that she had signed a cooperation agreement with the government under
which she agreed to testify in exchange for immunity from prosecution. Her
brief substantive testimony related to the Parness extortion charge and the false
income tax filing charges.
39
In his summation, counsel for Long referred to Mrs. Long's nervous demeanor
on the stand and stated, "Mrs. Long, you saw that nice, nice lady, good woman,
put on the stand by the government.... The government gives her an immunity
agreement, puts that lady on the stand." A few moments later counsel stated of
Mrs. Long, "She's put on, again under an immunity agreement, if she didn't
testify she'd be subject to prosecution...." The court interrupted sua sponte and
instructed the jury, "You may ignore that last comment. Ignore it completely. I
don't want to make any further comment on that score." The next morning, the
court gave the jury the following instruction, which had been submitted by the
government:
40
During [Long's counsel's] summation he stated that Ms. Olga Long was
subpoenaed. As you have heard during the trial, Olga and John Long are
married and as a result of that relationship Olga Long could not and was not
subpoenaed by the government at any time.
41
Mrs. Long could not be compelled to testify against her husband and had the
absolute right to refuse to testify. Mrs. Long chose to testify, appeared
voluntarily and waived the marital privilege.
42
43
44
46
We turn first to the issues raised by the absence of a judicial seal. Pursuant to
the procedures mandated in 18 U.S.C. Sec. 2518(8)(a),9 the recordings had
been originally sealed by court order at the expiration of the surveillance
orders. The tapes then were unsealed by judicial order for use in the Rotondo
trial. An affidavit of FBI Special Agent David Stone indicates that upon
completion of that trial, the tapes were resealed by an FBI agent and thereafter
maintained "in a sealed and secure condition in a confidential storage area." The
tapes were not, however, resealed by judicial order.
47
Before trial, Long moved to suppress the tape-recorded evidence on the ground
that the recordings had not been judicially resealed following the Rotondo trial.
Judge Edelstein denied the pretrial motion, finding no statutory requirement of
resealing. A month after his ruling, we held in United States v. Scopo, 861 F.2d
339, 347 (2d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1957, 104 L.Ed.2d
426 (1989), that there is a resealing requirement. We stated that "once the trial
level proceedings to which the unsealing order pertained have concluded, the
tapes should be resealed in order to preserve their integrity should their
admission be sought in another trial."
48
49
We believe that the government's failure to obtain a judicial sealing of the tapes
is satisfactorily explained by a "good faith, objectively reasonable
misunderstanding" of the statutory requirements. Ojeda Rios 110 S.Ct. at 1850.
Scopo had not yet been decided at the conclusion of the Rotondo trial, see id.,
and the government was understandably not alerted to our interpretation of the
statute. Because that interpretation was not obvious on the face of the statute,
we are satisfied that judicial seals were absent because of a good faith
misunderstanding as to the statutory requirements.
50
However, the integrity and reliability of the tapes must be assured. Agent
Stone's affidavit is extremely cursory, and we believe the matter to be of
sufficient importance to require an evidentiary hearing involving live witnesses
where appropriate. Accordingly, in the event of a new trial, the district court
should hold an evidentiary hearing regarding the chain of custody and integrity
of the tapes. If satisfied that they have not been tampered with and are
otherwise reliable, the court should admit them into evidence.
51
Appellants also argue that admission of the tape-recorded evidence violated the
hearsay rule because the conversations did not constitute statements offered
against appellants made "by a coconspirator ... during the course and in
furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). Whether a statement
was "in furtherance" of a conspiracy is a question of fact to be determined by
the court by a preponderance of the evidence, see United States v. Beech-Nut
Nutrition Corp., 871 F.2d 1181, 1198 (2d Cir.), cert. denied sub nom. Lavery v.
United States, --- U.S. ----, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989), and the
district court's determination will not be reversed unless clearly erroneous, see
United States v. Salerno, 868 F.2d 524, 537 (2d Cir.), cert. denied, --- U.S. ----,
110 S.Ct. 56, 107 L.Ed.2d 24 (1989). Co-conspirator statements may be found
to be in furtherance of the conspiracy within the meaning of Rule 801(d)(2)(E)
if they "prompt the listener to respond in a way that facilitates the carrying out
of criminal activity," United States v. Rahme, 813 F.2d 31, 35 (2d Cir.1987),
although the listener need not be a member of the conspiracy, see Beech-Nut,
871 F.2d at 1199.
52
Appellants argue that the district court abused its discretion by admitting expert
testimony regarding organized crime. We agree that the testimony was
improperly admitted.
54
Judge Edelstein ruled that the government's first witness, F.B.I. Special Agent
James Kossler, might testify as an expert on organized crime families under
Federal Rules of Evidence 702 and 70310 and that such testimony was also
permissible under Rule 403.11 Agent Kossler's testimony described the division
of La Cosa Nostra into families, some of which operated in New York and New
Jersey. He went on to describe the hierarchical structure of such a family,
including the respective roles of "the boss," "the underboss," "the consiglieri,"
"capos" and "soldiers." He defined the difference between "made members"
and "associates" and the meaning of "vouching," "sit downs" and "sweetheart
contracts." He stated that organized crime families engage in gambling,
loansharking, theft, fencing and labor racketeering. Finally, he identified
Rotondo as an underboss of the DeCavalcante crime family.
55
We fail to see how Agent Kossler's testimony assisted the jury either "to
understand the evidence or to determine a fact in issue" as required by Rule
702. See supra note 10. The claimed nexus between the crimes charged and
organized crime families appears to be the fact that Rotondo was a "made
We agree that the fact that Rotondo had contacts in organized labor as a result
of his position in the DeCavalcante crime family and demanded a fee for his
services was relevant background to explain to the jury how and why he was
able to facilitate Hyman's various schemes by introducing him to Long. Hyman,
however, could have testified to that fact, and there was no need to call an
expert to explain the hierarchical structure of organized crime families, their
jargon, the various unrelated criminal activities in which they engage, and so
forth. The sharing of the proceeds from illegal kickback schemes with those
who facilitate them is hardly a unique arrangement found only where "made
members" introduce "associates" to crooked labor leaders. Indeed, recent
highly-publicized scandals in New York City have involved payments to
political leaders in exchange for their services as facilitators of corrupt schemes.
See Biaggi, 909 F.2d at 673, 683 (payments to political officials for
"introductions" and for "securing favorable action from other public officials");
United States v. Friedman, 854 F.2d 535, 550-51 (2d Cir.1988) (one percent of
proceeds of government contract to political leader who served as
"peacemaker"), cert. denied, --- U.S. ----, 109 S.Ct. 1637, 104 L.Ed.2d 153
(1989). We do not believe that a New York jury needs expert testimony to
understand that those who facilitate or broker kickback schemes may expect a
commission from the proceeds. "Sweetheart contracts" are also not the unique
product of organized crime, the term being a general one used to refer to corrupt
collective bargaining agreements. See, e.g. Bauer Welding and Metal
Fabricators, Inc. v. NLRB, 358 F.2d 766, 769 (8th Cir.1966) (sweetheart
contracts are "contracts not in the employees' best interest which are sometimes
entered into between dishonest union officials and management").
57
58
The government relies heavily upon United States v. Daly, 842 F.2d 1380 (2d
Cir.), cert. denied sub nom. Giardina v. United States, 488 U.S. 821, 109 S.Ct.
66, 102 L.Ed.2d 43 (1988). In Daly, Agent Kossler's testimony also identified
organized crime families in the New York area, described their membership
rules and conduct, explained some mob jargon, and described their infiltration
of labor unions by crime families. Daly upheld admission of Agent Kossler's
testimony as expert testimony and found no error in the determination that the
likely prejudice from such testimony would not outweigh its probative value.
Id. at 1388-89. In Daly, the Gambino crime family was charged as the RICO
enterprise, id. at 1383, and Kossler's testimony was helpful to the jury's
evaluation of the evidence regarding that family. Id. at 1388. However, the
enterprise alleged in the instant case was not a crime family, and the sharing of
proceeds from Hyman's illegal activities with Rotondo was the sole nexus with
organized crime. The need for Agent Kossler's explanations was thus quite
different.
60
The fact that the agent did not testify about the particular facts of the instant
matter does not reduce the prejudice. This sort of generalized information--by
definition not directly related to the case at hand--was quite prejudicial in a case
with so thin a nexus to organized crime. For example, because it was
generalized, cross-examination could not blunt its prejudicial effect. The
evidence thus clearly had an adverse impact "beyond tending to prove the fact
or issue that justified its admission into evidence." United States v. Figueroa,
618 F.2d 934, 943 (2d Cir.1980).
61
5.
62Hypothetical Questioning of Character Witnesses
63
The district court permitted and itself pursued questions to several defense
character witnesses that required the witnesses to assume the guilt of the
appellants. In light of our recent decision in United States v. Oshatz, 912 F.2d
534 (2d Cir.1990), this questioning was error. We detail the questioning for
purposes of determining whether the error was harmless, an issue discussed in
the conclusion to this opinion.
64
The first instance of this form of questioning was during the testimony of
government witness Milton Weinstein, an accountant for Local 808. On crossexamination by the defense, Weinstein gave some character testimony
favorable to appellant Mahoney. On redirect, the prosecutor asked Weinstein,
"If you were to review the evidence in this case ... and you were to learn from
that evidence that a corrupt agreement did exist between John Mahoney and
Jesse Hyman, would that change your opinion of John Mahoney?" When
defense counsel objected, Judge Edelstein stated, "You opened the door.... This
is appropriate cross-examination." Weinstein responded that such evidence
would change his opinion and that Weinstein would have resigned as
accountant for the funds had he suspected any such corruption. The prosecutor
further asked, "And, would it change your opinion of Mr. Mahoney ... if you
were to learn that Mr. Mahoney lied to the FBI and to the grand jury and to
others regarding the manner in which he obtained a loan from Sterling National
Bank?" to which Weinstein responded, "It certainly would."
65
66
68
The government then asked if it would change O'Dwyer's opinion of Local 804
to learn that "one of the principal officers of that local, the secretary-treasurer,
John Long, accepted bribes and kickbacks in exchange ... for giving sweetheart
contracts to employers." When O'Dwyer responded, "No, it wouldn't. I couldn't
believe that of John Long," Judge Edelstein overruled Long's objection to the
line of questioning and directed the witness, "Assume that is a fact." The
government then asked O'Dwyer to assume that the evidence in the criminal
case proved that Long had accepted money in exchange for providing
sweetheart contracts. O'Dwyer twice again responded that it would not change
his opinion. When asked if it would change his opinion "to learn that Mr. Long
had accepted bribes and kickbacks in exchange for an agreement to invest his
union's fund in Penvest," O'Dwyer responded that he "really can't conceive" of
"ever thinking that of John Long." Judge Edelstein then had the following
exchange with O'Dwyer:
76 WITNESS: It's hard for me to assume this fact, your Honor. As a man it's very
THE
difficult for me to understand this.
77 COURT: I find it very difficult to understand your answer. Assume these facts
THE
and give your answer.
A: Assuming all the facts it would change my opinion.
78
79
80
CONCLUSION
81
We reverse as to all counts. For reasons stated supra, the RICO and RICO
conspiracy counts must be reversed.
82
With regard to Long's convictions for substantive crimes, they must also be
reversed in light of the multiple errors. Although the expert testimony had some
probative value in light of his relationship with Rotondo, it was prejudicial in
that it invited the jury to take a somewhat exaggerated view of Long's criminal
activities. In addition, the hypothetical questioning of his character witnesses
must be viewed in light of Oshatz as undermining the presumption of innocence
with regard to the non-RICO counts. Finally, as discussed in the body of the
opinion, the district court's instruction regarding Mrs. Long's testimony misled
the jury by creating the false impression of a witness ready and willing to
testify against her spouse. This impression seriously tainted all the counts.
Whether any one of these errors would, absent the others, have been harmless is
irrelevant in light of the cumulative prejudice caused.
83
We also reverse Mahoney's convictions for perjury and false statements. Agent
Kossler's testimony had no probative value in light of Mahoney's affirmative
disassociation from Rotondo. It was, therefore, substantially prejudicial. The
hypothetical questioning of character witnesses also was prejudicial and related
to Mahoney's entire relationship with Hyman as well as to the obstruction of
justice count. Moreover, the evidence was that Long initiated Mahoney's
participation in the enterprise, and the indictment named Long as an aider and
abetter in two of the three racketeering acts involving Mahoney. If Long were
found guilty, Mahoney's conviction would probably follow. We believe,
therefore, that the tainting of the jury's consideration of the evidence against
Long likely affected its consideration of the evidence against Mahoney. Again,
we believe the cumulative prejudice calls for reversal on all counts.
84
The effect of the Biaggi decision on the various counts against each defendant,
see note 7 supra, must be determined in the first instance by the district court,
should the government elect to retry the defendants.
The Honorable Michael B. Mukasey, United States District Judge for the
Southern District of New York, sitting by designation
Mahoney also challenges his sentence, arguing that his sentence enhancement
was based on insufficient evidence and that he was denied a fair hearing on that
issue. These claims are mooted by our reversal
Although Mahoney was initially charged with Long in Racketeering Act Six,
the government withdrew the charge as to Mahoney prior to the conclusion of
its direct case
Count Three charged Long with extortion in connection with the payments
from Parness to Long and his wife in violation of 18 U.S.C. Secs. 1951 and 2.
Count Seven charged Long with making false declarations before the grand
jury on May 26, 1983, see 18 U.S.C. Sec. 1623, and Count Eight charged him
Indelicato applies retroactively. See Griffith v. Kentucky, 479 U.S. 314, 107
S.Ct. 708, 93 L.Ed.2d 649 (1987)
In addition, the proof of the Parness extortion by Long was not overwhelming.
Parness and an employee of his maintenance company, Douglas Lea, also
testified regarding Long's relationship with Parness. Viewing the evidence in
the light most favorable to the government, Parness made payments to Long
partly out of friendship, partly for help Long provided in running Parness's
business, and partly to get and keep a lucrative janitorial contract with UPS for
that business. Parness testified that he did not know if Long did anything to
ensure that Parness's company would get the UPS contract and that Parness
unilaterally increased payments to Long when the UPS business increased
10
11