District Court Properly Admitted Evidence of Witnesses’ Beliefs That Defendants Were Connected To Organized Crime

United States v. Fazio, Nos. 12-3786-cr, 12-3799-cr, 12-3874-cr (2d Cir. Oct. 22, 2014) (Walker, Leval, and Wesley), available here

Anthony Fazio, Sr., Anthony Fazio, Jr., and John Fazio, Jr., were officers in Local 348 of the United Food and Commercial Workers International Union. They allegedly demanded that business owners employing Local 348 members make payments to the Fazios “to ensure a good working relationship with the union.” The government claimed that the Fazios’ demands for money were accompanied by threats of economic and physical harm.

Following a jury trial in the Southern District of New York (Forrest, J.), defendants were convicted of all counts, which included racketeering conspiracy and extortion conspiracy.  On appeal, they challenged: (1) a ruling admitting evidence that certain witnesses believed that defendants were connected to organized crime, (2) the denial of a requested jury charge that the “fear” element of extortion cannot be satisfied by a threat of loss of economic advantage to which the victim was not legally entitled, and (3) the dismissal during trial of a juror.

The Court rejected all three contentions and affirmed the convictions. First, the Circuit held that the district court properly admitted evidence that the defendants had a reputation for being connected to organized crime. Such evidence was relevant to the fear reasonably experienced by the victims, an element of extortion.

Second, the district court properly refused to instruct the jury that it could not find the “fear” element of extortion unless the victim feared losing an advantage to which he was legally entitled. “This instruction,” the Circuit held, “misstates the law.” The Court wrote: “None of our precedents require that the economic advantage that the victim fears losing to have been legally obtained by the victim. Our cases require simply that the victim be coerced into making the payments out of a reasonable fear of economic harm.”

Finally, the district court did not abuse its discretion by dismissing a juror. The juror had repeatedly violated the court’s instructions, thus providing “reasonable cause to believe that the juror could no longer serve according to her oath.” Accordingly, dismissal of the juror was proper.