United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)
Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years’ imprisonment. He challenged two evidentiary rulings, albeit without success.
1. Mobsters are Always “Guilty as Charged”
During a recorded conversation between a Bonnano cooperating witness and DeFilippo’s co-defendant, the cooperator remarked that the feds usually charged mobsters with “nine thousand six hundred and eight-four other charges.” At trial, the government asked the cooperator why he had said this and he replied “to win their confidence.” Not satisfied with this answer, however, the prosecutor went back to the subject twice more, asking him whether he knew of anyone involved in organized crime who had ever “been charged with a crime that they were not guilty of.” The cooperator said that he did not.
On appeal, DeFilippo characterized this as improper opinion testimony. The circuit agreed, finding that the questioning seemed “designed to prompt the witness to declare that anyone linked to organized crime who is charged with a crime is in fact guilty of that crime.” This had nothing to do with DeFilippo, “did not address issues relating to” his guilt, and hence was error.
However, the court held that the error was harmless. There was substantial other evidence of DeFiloppo’s guilt, and the prosecutor did not emphasize the improper testimony in its arguments to the jury.
2. “Killing the Kids”
When cross-examining the cooperator, defense counsel attempted to show that the witness could not recall any of his recorded conversations except for the two that he testified about on direct-examination, in an effort to show that he had been coached. To rebut this, the prosecutor elicited the cooperator’s recollection that, in one conversation, other Bonnano family members discussed killing the children of anyone who cooperated against the family.
The court of appeals held that this testimony was relevant to rebut the defendant’s argument, but was “troubl[ing]” under Rule 403. The statement was “highly inflammatory” and went far beyond establishing the witness’ ability to remember other recorded conversations. Moreover, his credibility could have been rehabilitated with “any one of a number of ‘evidentiary alternatives.’” The appellate court even went so far as to conclude that the government selected this particular memory precisely for its “unfairly prejudicial” effect.
Nonetheless, it found no abuse of discretion, since the district court engaged in the proper Rule 403 balancing, and did not act arbitrarily or irrationally.
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