United States v. Pastore ( 2022 )


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  • 18-2482(L)
    United States v. Pastore
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
    CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
    2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
    APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
    WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
    COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
    A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
    ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 8th day of June, two thousand twenty-two.
    PRESENT: JOHN M. WALKER,
    RICHARD J. SULLIVAN,
    Circuit Judges,
    ALISON J. NATHAN,
    District Judge.*
    ––––––––––––––––––––––––––––––––––––
    UNITED STATES OF AMERICA,
    Appellee,
    v.                                          Nos. 18-2482(L),
    18-2610(Con)
    STEVEN PASTORE, SALVATORE DELLIGATTI,
    Defendants-Appellants. †
    ––––––––––––––––––––––––––––––––––––
    * Judge Alison J. Nathan, of the United States District Court for the Southern District of New York,
    sitting by designation at the time this case was heard.
    †   The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
    FOR DEFENDANTS-APPELLANTS:                           VIVIAN SHEVITZ, (Larry J. Silverman,
    on the brief), Attorneys at Law, South
    Salem, NY, for Appellant Steven
    Pastore.
    LUCAS       ANDERSON,      Rothman,
    Schneider, Soloway & Stern, LLP,
    New York, NY, for Appellant Salvatore
    Delligatti.
    FOR APPELLEE:                                        JORDAN L. ESTES, Assistant United
    States Attorney (Samson Enzer, Jason
    M. Swergold, Karl Metzner, Assistant
    United States Attorneys, on the brief),
    for Geoffrey S. Berman, United States
    Attorney for the Southern District of
    New York, New York, NY.
    Appeal from judgments of conviction and sentences in the United States
    District Court for the Southern District of New York (Katherine B. Forrest, Judge).
    UPON        DUE      CONSIDERATION,                IT    IS    HEREBY         ORDERED,
    ADJUDGED, AND DECREED that the judgment of the district court is
    AFFIRMED.
    Defendants-Appellants Steven Pastore and Salvatore Delligatti appeal from
    judgments entered by the United States District Court for the Southern District of
    New York in connection with their participation in a criminal enterprise known as
    the Genovese Crime Family (the “Family”). 1 Delligatti was sentenced to 300
    1Decision of this case was delayed by the panel’s need to await its turn in a queue of cases pending
    in this Circuit resolving questions arising from the Supreme Court’s ruling in United States v.
    2
    months’ imprisonment after a jury found him guilty of conspiracy to commit
    racketeering, in violation of 
    18 U.S.C. § 1962
    (d) (Count One); conspiracy to commit
    murder in aid of racketeering and attempted murder in aid of racketeering, in
    violation of 
    18 U.S.C. § 1959
    (a)(5) (Counts Two and Three); conspiracy to commit
    murder-for-hire, in violation of 
    18 U.S.C. § 1958
     (Count Four); illegal gambling, in
    violation of 
    18 U.S.C. § 1955
     (Count Five); and using a firearm during and in
    relation to a crime of violence, and possessing a firearm in furtherance of a crime
    of violence, in violation of 
    18 U.S.C. § 924
    (c)(1)(A)(i) (Count Seven). Pastore, who
    pleaded guilty to Count One only, was sentenced to 24 months’ imprisonment and
    was ordered to forfeit $125,000.
    Delligatti raises an assortment of challenges on appeal, including that (1) the
    evidence at trial was not sufficient to sustain his convictions on Counts One, Two,
    Three, and Five; (2) Counts One and Four of his indictment lacked adequate
    information and were constructively amended at trial; (3) the district court
    erroneously admitted certain testimony at trial; and (4) his sentence of 300 months’
    imprisonment is substantively unreasonable. 2 Pastore challenges his forfeiture
    Davis, 
    139 S. Ct. 2319
     (2019), interpreting “crime of violence.” See United States v. Laurent, 
    33 F.4th 63
    , 73 n.3 (2d Cir. 2022).
    2Delligatti also challenges his conviction on Count Seven for use of a firearm during and in
    relation to a “crime of violence,” arguing that the underlying predicates were not crimes of
    3
    order on various grounds, arguing that a jury should have determined the amount
    and that the district court improperly calculated the total and relied on insufficient
    evidence. We assume the parties’ familiarity with the underlying facts, procedural
    history, and issues on appeal.
    I.      Sufficiency of the Evidence
    Delligatti challenges the sufficiency of the evidence underlying his
    racketeering convictions (Counts One through Three) and gambling conviction
    (Count Five). We review each challenge de novo, “and must affirm if the evidence,
    when viewed in its totality and in the light most favorable to the government,
    would permit any rational jury to find the essential elements of the crime beyond
    a reasonable doubt.” United States v. Geibel, 
    369 F.3d 682
    , 689 (2d Cir. 2004).
    Delligatti first contends the government failed to identify the “core”
    personnel of the Family and thus did not sufficiently prove an “enterprise” as
    required to convict him of his racketeering charges. At trial, a government agent
    and a cooperating witness who was a member of another crime family testified
    about the structure of the Family, the illegal activities of Family members, and the
    Family’s role in the broader network of organized crime families known as La
    violence in light of Davis, 
    139 S. Ct. 2319
    . We address that challenge in a separate opinion that
    accompanies this summary order.
    4
    Cosa Nostra. While these witnesses did not identify every individual in the
    Family, they described the structure of the enterprise and specified persons
    functioning as a “continuing unit” during the relevant period. United States v.
    Turkette, 
    452 U.S. 576
    , 583 (1981) (explaining that an enterprise is “proved by
    evidence of an ongoing organization, formal or informal, . . . [with] various
    associates function[ing] as a continuing unit”); see United States v. Payne, 
    591 F.3d 46
    , 60 (2d Cir. 2010) (recognizing that an enterprise “may continue to exist even
    though it undergoes changes in membership” (citation omitted)). Further, the
    government offered extensive evidence of Delligatti’s association with the Family
    and his engagement in criminal activities with a Genovese soldier named Robert
    DeBello and two Genovese associates, Ryan Ellis and Robert Sowulski. This
    evidence was more than sufficient to establish the existence of an enterprise.
    Next, Delligatti argues that the government did not sufficiently establish a
    “pattern” of racketeering activity to prove an offense under the Racketeering
    Influenced and Corrupt Organizations Act (“RICO”). He also contends that,
    because the jury was not asked to return a special verdict sheet as to Count One, it
    is impossible to know which charged acts constitute the requisite “pattern” of
    activity. A “pattern of racketeering activity” under RICO requires at least two
    5
    racketeering acts within a ten-year span, excluding periods of imprisonment; acts
    linked to the same racketeering enterprise are ordinarily sufficient to establish
    such a pattern. See United States v. Daidone, 
    471 F.3d 371
    , 374–76 (2d Cir. 2006);
    United States v. Indelicato, 
    865 F.2d 1370
    , 1383–84 (2d Cir. 1989) (stating that an act
    in furtherance of a racketeering business “automatically carries with it the threat
    of continued racketeering activity”).
    Count One of the indictment charged that members and associates of the
    Family – a criminal enterprise – engaged in various crimes “including conspiracy
    to commit murder; attempted murder; extortion; and the operation of illegal
    gambling businesses.” Delligatti App’x at 39. At trial, the district court instructed
    the jury that it did not need to “decide whether [Delligatti] agreed to the
    commission of any particular racketeering act” to convict him of Count One, but
    it had to “be unanimous as to which type or types of predicate racketeering activity
    [he] agreed would be committed.” Id. at 438. The court later instructed the jury
    on the elements of each predicate offense.
    Based on the trial record, we are persuaded that there was ample evidence
    to prove Delligatti’s involvement in multiple predicate acts linked to the Family.
    As discussed below, the jury heard that (1) Delligatti directed a murder plot; (2)
    6
    DeBello approved and financially benefitted from that plot; (3) Delligatti and
    DeBello intimidated a nightclub owner and employee to obtain payments from the
    club; and (4) Delligatti participated in an illegal gambling scheme run by another
    Genovese associate. The evidence shows that the predicate acts charged in Count
    One were “related” to the Family and together “amount[ed] to . . . continued
    criminal activity” sufficient to establish a “pattern” of racketeering activity.
    Daidone, 
    471 F.3d at 375
    .
    Delligatti also argues that his convictions for conspiracy to commit murder
    in aid of racketeering and attempted murder in aid of racketeering, in violation of
    
    18 U.S.C. § 1959
    (a)(5) (Counts Two and Three), must be dismissed because the
    government did not present sufficient evidence that Delligatti planned a murder
    for the purpose of gaining entrance to or maintaining a position within the Family.
    But while section 1959 permits the government “to prosecute defendants for
    violent crimes intended . . . to permit a defendant to maintain or increase [his]
    position in a RICO enterprise,” United States v. Pimentel, 
    346 F.3d 285
    , 295 (2d Cir.
    2003) (internal quotation marks omitted), the government need not prove that
    “was the defendant’s sole or principal motive,” United States v. Concepcion, 
    983 F.2d 369
    , 381 (2d Cir. 1992).
    7
    Delligatti emphasizes that he was solicited and paid to kill Joseph Bonelli
    not by a member of the Family, but by Luigi Romano, the owner of a local gas
    station whom Bonelli had “terrorized.” Delligatti App’x at 346. Trial testimony
    established, however, that Family members frequented Romano’s gas station, that
    the Family was engaged in bookmaking, and that Bonelli was suspected of
    cooperating with the police against bookmakers. The jury also heard testimony
    that DeBello, a Genovese soldier, approved Bonelli’s murder and received a cut of
    the amount Romano paid for the hit. From this evidence, a rational jury could
    readily infer that Delligatti plotted Bonelli’s murder, at least in part, to benefit the
    Family and to advance his status within the Family. See United States v. Whitten,
    
    610 F.3d 168
    , 179–80 (2d Cir. 2010) (finding intent under section 1959 where
    testimony established that committing violence authorized by crew leaders could
    enhance status); Concepcion, 983 F.2d at 381.
    Finally, Delligatti argues there was insufficient evidence to support his
    conviction for participating in the operation of an illegal gambling business. To
    prove that Delligatti participated in the operation of an illegal gambling business
    as charged in the indictment, the government had to show, among other things,
    that the business (1) involved five or more people and (2) received more than five
    8
    bets totaling over $5,000 in one day.         See 
    18 U.S.C. § 1955
    ; 
    N.Y. Penal Law § 225.10
    (1).
    The evidence at trial clearly established that Delligatti was a “runner” in a
    sports-betting operation led by Genovese associate Ryan Ellis; that Delligatti had
    a “sheet” with Ellis – meaning that Delligatti set up clients to bet and received
    some of the proceeds if his clients lost; that DeBello also received a cut of the
    proceeds from the operation; and that the business employed numerous other
    runners, including Luigi Caminiti, Michael Vigorito, and Scott Jacobson. The
    government also introduced one of Jacobson’s gambling sheets, which itself
    showed that fifteen clients had placed bets and lost a total of $5,982 in a single day.
    Considered as a whole, this evidence sufficiently supported Delligatti’s conviction
    on Count Five.
    II.   Adequacy of Indictment & Jury Instructions
    Delligatti argues for the first time on appeal that his convictions on Count
    One (racketeering conspiracy) and Count Four (murder-for-hire conspiracy)
    should be reversed because his indictment failed to specify certain necessary
    details and statutory citations. Because Delligatti did not raise this claim “prior to
    trial, as unambiguously required by the law of th[is] Circuit,” and he has shown
    9
    no cause for failing to timely do so, the claim “must be rejected.” United States v.
    Spero, 
    331 F.3d 57
    , 61–62 (2d Cir. 2003); see also Fed. R. Crim. P. 12(b)(3)(B)
    (requiring that objections alleging “a defect in the indictment” for “lack of
    specificity” or “failure to state an offense” be raised by pretrial motion if “the basis
    for the motion is then reasonably available and the motion can be determined
    without a trial on the merits”).
    Delligatti also maintains that the district court’s jury instructions on Counts
    One and Four constructively amended his indictment. Because he failed to object
    to these instructions at trial, we review for plain error. See United States v. Hertular,
    
    562 F.3d 433
    , 444 (2d Cir. 2009). To prevail on this challenge, Delligatti “must
    demonstrate that . . . the presentation of evidence and jury instructions . . . so
    modif[ied] essential elements of the offense charged that there is a substantial
    likelihood that [he] may have been convicted of an offense other than that charged
    in the indictment.” United States v. D’Amelio, 
    683 F.3d 412
    , 416 (2d Cir. 2012)
    (internal quotation marks omitted). Upon review of the indictment and the district
    court’s detailed jury instructions, we find no basis for concluding that Count One
    or Four were constructively amended.
    10
    III.   Evidentiary Rulings
    Next, Delligatti challenges the district court’s admission of certain testimony
    at trial. We review the court’s evidentiary rulings for abuse of discretion and
    reverse only if the court based its decision “on an erroneous view of the law or on
    a clearly erroneous assessment of the evidence, or if its decision cannot be located
    within the range of permissible decisions.” United States v. Barret, 
    848 F.3d 524
    ,
    531 (2d Cir. 2017).
    Delligatti first contests the admission of expert testimony from Special
    Agent John Carillo, who testified about the structure and conduct of La Cosa
    Nostra and the Genovese Crime Family, as well as the code of silence known as
    “Omerta.” Agent Carillo’s testimony gave context to the crimes charged; his
    specialized knowledge was also highly probative as to whether the Family was an
    “enterprise” and whether Delligatti’s acts were related to that enterprise. See Fed.
    R. Evid. 702(a); United States v. Locascio, 
    6 F.3d 924
    , 936 (2d Cir. 1993) (allowing
    testimony “on the nature and function of organized crime families, imparting the
    structure of such families and disclosing the ‘rules’ of . . . La Cosa Nostra”). It was
    not an abuse of discretion to admit this testimony.
    11
    Delligatti next challenges the district court’s decision to allow testimony
    from Philip Gurian, who testified that he ran a sports-betting operation with
    Delligatti and another Genovese associate – Christopher Castellano – who was
    later suspected of cooperating with law enforcement and subsequently killed.
    Although there was no evidence that Delligatti was involved in Castellano’s
    murder, the court concluded that Gurian’s testimony about Castellano was
    “directly relevant to the existence and nature of the charged [racketeering]
    conspiracy” and “would help the jury understand why Delligatti would have been
    willing to murder Bonelli – who, like Castellano, was suspected of cooperating
    with law enforcement.” Delligatti App’x at 91. The court also found that such
    evidence was “similar to, and no more prejudicial than the crimes with which
    Delligatti has been charged.” 
    Id.
    Evidence that Castellano had been considering cooperating and was later
    murdered was relevant to establishing Delligatti’s motive for killing Bonelli
    (another suspected cooperator), especially when coupled with testimony about the
    Family’s rule prohibiting cooperation on penalty of death. See Fed. R. Evid. 403.
    Moreover, Gurian’s brief testimony about Castellano’s murder was not “more
    sensational or disturbing” than evidence of the charged crimes, which included
    12
    Delligatti’s extensive efforts to have Bonelli killed. United States v. Roldan-Zapata,
    
    916 F.2d 795
    , 804 (2d Cir. 1990). On balance, we find that the district court did not
    abuse its discretion in admitting this testimony.
    Delligatti separately argues that Gurian’s testimony included improper
    hearsay statements that Castellano made to Gurian when they were both
    incarcerated.   We agree with the district court that these statements were
    admissible as statements against Castellano’s penal interest under Rule 804(b)(3)
    of the Federal Rules of Evidence. Rule 804(b)(3) permits the admission of a hearsay
    statement at trial “if the declarant is unavailable as a witness,” and the statement
    is one that (1) “a reasonable person in the declarant’s position would have made
    only if the person believed it to be true because, when made, it was so contrary to
    the declarant’s proprietary or pecuniary interest or had so great a tendency . . . to
    expose the declarant to civil or criminal liability; and” (2) “is supported by
    corroborating circumstances that clearly indicate its trustworthiness, if it is offered
    in a criminal case as one that tends to expose the declarant to criminal liability.”
    Gurian testified that Castellano said he was an “enforcer” for two Genovese
    soldiers, Federici and Romanello, which Gurian understood to mean that
    Castellano “would intimidate people, beat people up, [and] hurt people to collect
    13
    money to end up accomplishing whatever result” the mobsters demanded.
    Delligatti App’x at 280. These statements clearly would have subjected Castellano
    to criminal liability. See United States v. Gupta, 
    747 F.3d 111
    , 129 (2d Cir. 2014);
    United States v. Persico, 
    645 F.3d 85
    , 102 (2d Cir. 2011). Corroborating evidence also
    bolsters the trustworthiness of Castellano’s statements: Castellano made these
    statements to Gurian, his friend and fellow inmate, rather than to law enforcement
    agents “whose favor he might be expected to curry.” United States v. Katsougrakis,
    
    715 F.2d 769
    , 775 (2d Cir. 1983); see Gupta, 747 F.3d at 127. Further, after both men
    were out of prison, Castellano introduced Gurian to Federici at a dinner and
    connected Gurian with Delligatti, a fellow Genovese associate who also knew
    Romanello. And since Castellano’s death in 2010 made him unavailable at trial,
    the district court did not err in admitting Castellano’s prior statements under Rule
    804(b)(3).
    Finally, Delligatti challenges the district court’s decision to permit Robert
    Sowulski to testify about Delligatti’s suggestion that they plant a bomb in a club
    targeted by the Family for extortion. Delligatti argues these statements made him
    look like a “volatile and violent person” but were not probative of an existing
    extortion conspiracy, and thus should have been excluded under Federal Rules of
    14
    Evidence 402 and 403. Delligatti Br. at 56. But Delligatti’s willingness to plant a
    bomb at a nightclub after prior failed efforts to intimidate and take over the club
    was highly probative of his participation in a racketeering conspiracy involving
    extortion. Though no bomb was ultimately planted, Delligatti’s proposal was
    relevant to establish his state of mind and intent while participating in the
    racketeering conspiracy. The court properly exercised its discretion in admitting
    that testimony.
    IV.   Reasonableness of Sentence
    Lastly, Delligatti challenges the substantive reasonableness of his below-
    Guidelines sentence because of “[t]he stark disparities” between his 300-month
    sentence and the sentences of his co-defendants. Delligatti Br. at 58. We review a
    sentence for substantive reasonableness under “a deferential abuse-of-discretion
    standard,” “tak[ing] into account the totality of the circumstances” and “giving
    due deference to the sentencing judge’s exercise of discretion.” United States v.
    Cavera, 
    550 F.3d 180
    , 189–90 (2d Cir. 2008) (en banc) (internal quotation marks
    omitted).   In this case, Delligatti’s sentence fell below the minimum advisory
    Sentencing Guidelines sentence of 324 months. Moreover, while district courts are
    not required to consider disparities among co-defendants – particularly if they are
    15
    not similarly situated, see United States v. Johnson, 
    567 F.3d 40
    , 54 (2d Cir. 2009) –
    here the court properly considered the section 3553(a) factors and applied a
    downward variance to prevent too great a disparity between Delligatti and his co-
    defendants. Because this was well “within the range of permissible decisions,” we
    affirm. See Cavera, 
    550 F.3d at 191
    .
    V.     Forfeiture
    Pastore challenges his $125,000 forfeiture order, arguing that (1) a jury
    should have determined the forfeiture amount, and (2) the district court erred in
    calculating the amount based on gross receipts of funds that were not directly
    traced to any bettor in the gambling scheme. He also argues that the court
    determined the forfeiture amount based on insufficient and unreliable evidence.3
    “We review a district [court’s] legal conclusions regarding forfeiture de
    novo and [its] factual determinations for clear error.” United States v. Daugerdas,
    
    837 F.3d 212
    , 231 (2d Cir. 2016). “For a criminal forfeiture order to pass muster,
    3In his briefs, Pastore challenged the procedural and substantive reasonableness of his sentence.
    He has since withdrawn as moot his “argument concerning [his] incarceratory sentence.” Case
    No. 18-2482, Doc. No. 153. To the extent that he maintains a procedural challenge to the district
    court’s imposition of forfeiture, Pastore fails to explain how the error he alleges – a factual finding
    in violation of Federal Rule 32 of Criminal Procedure – affected the forfeiture calculation.
    Moreover, the record makes clear that this challenge lacks merit. See Pastore App’x at 67 (stating
    that court won’t rely on disputed fact at sentencing).
    16
    the government must establish, by a preponderance of the evidence, the ‘requisite
    nexus between the property and the offense.’” 
    Id.
     (quoting Fed. R. Crim. P. 32).
    Pastore’s argument that a jury should have determined his forfeiture
    amount is foreclosed by Supreme Court and Second Circuit precedent.                  In
    Libretti v. United States, the Supreme Court held that there is no right to a jury trial
    on a forfeiture determination, see 
    516 U.S. 29
    , 49–52 (1995), and this Circuit has
    since recognized that “Libretti . . . remain[s] controlling precedent,” United States v.
    Stevenson, 
    834 F.3d 80
    , 85–86 (2d Cir. 2016).
    Pastore also argues that the district court should have calculated his
    forfeiture based on net, rather than gross, proceeds. He cites to United States v.
    Masters, in which the Seventh Circuit “assume[d]” (with little analysis) “that the
    proceeds to which [
    18 U.S.C. § 1963
    ] refers are net, not gross, revenues,” and
    dismissed this Circuit’s precedent, United States v. Lizza Industries, Inc., 
    775 F.2d 492
    , 498 (2d Cir. 1985), as not “square[d]” with the statutory language. 
    924 F.2d 1362
    , 1369–70 (7th Cir. 1991). But Masters is an outlier; no other circuit to have
    addressed this issue has agreed with the Seventh Circuit. See, e.g., United States v.
    Cadden, 
    965 F.3d 1
    , 38 (1st Cir. 2020); United States v. Christensen, 
    828 F.3d 763
    , 822–
    17
    24 (9th Cir. 2015); United States v. Simmons, 
    154 F.3d 765
    , 770–71 (8th Cir. 1998);
    United States v. DeFries, 
    129 F.3d 1293
    , 1314 (D.C. Cir. 1997).
    In any event, we remain bound by this Court’s decision in Lizza Industries.
    In that case, after the defendants were convicted under RICO for colluding on bids
    for publicly funded construction contracts, 
    775 F.2d at 494
    , the district court
    calculated forfeiture “by deducting from the money received on the illegal
    contracts only the direct costs incurred in performing those contracts,” 
    id. at 498
    .
    We affirmed the district court’s calculation based on “gross rather than net
    profits.” 
    Id.
     (describing the court’s calculation – which deducted only direct costs
    of performance from gross profits derived under illegal contracts – as “consistent
    with the purposes of the RICO statute”). In doing so, we explained that “[o]ften[,]
    proof of overhead expenses and the like is subject to bookkeeping conjecture and
    is therefore speculative.” 
    Id.
     Accordingly, we emphasized that “RICO does not
    require the prosecution to prove or the trial court to resolve complex
    computations, so as to ensure that a convicted racketeer is not deprived of a single
    farthing more than his criminal acts produced.” 
    Id.
    More recently, in United States v. Peters, we likewise held that the term
    “proceeds” in another criminal forfeiture statute, 
    18 U.S.C. § 982
    (a)(2), refers to
    18
    gross receipts rather than net profits, emphasizing that “it should not be necessary
    for the prosecutor to prove what the defendant’s overhead expenses were.” 
    732 F.3d 93
    , 101 (2d Cir. 2013) (quotation mark and alteration omitted) (noting that a
    properly “broad reading of ‘proceeds’ in the context of criminal forfeiture” under
    RICO should “punish[] ‘all convicted criminals who receive income from illegal
    activity, and not merely those whose criminal activity turns a profit’” (quoting
    Simmons, 
    154 F.3d at 771
    )).
    Here, Pastore offered no evidence of direct costs that could be deducted
    from the proceeds he received, and even if he had offered such evidence, it is
    unlikely that this Court’s holding in Lizza Industries – which contemplated
    deduction of lawful costs for the performance of illegally obtained construction
    contracts – would permit deduction of unlawful costs incurred in an illegal
    gambling scheme. See Pastore App’x at 54 (district court stating it had received no
    evidence of “any . . . amounts deducted from” proceeds “received by Mr.
    Pastore”); Peters, 732 F.3d at 101; cf. United States v. Ofchinick, 
    883 F.2d 1172
    , 1181–
    82 (3d Cir. 1989) (noting that Lizza Industries “did not address whether a district
    court must deduct direct costs,” and that “[i]f direct costs need be taken into
    account, it is the defendant who has the burden of going forward on this issue,”
    19
    because “[t]he government should not have to prove the absence of direct costs in
    a case in which the defendant has not pointed to costs that might be deductible”).
    We conclude that where the district court had no evidence of any direct costs paid
    out from Pastore’s unlawful proceeds, it committed no error and appropriately
    followed this Court’s reasoning in Lizza Industries and Peters by calculating
    forfeiture based on the proceeds that Pastore received.
    Pastore also argues that the district court erred by including funds not
    traced to specific bettors in the bookmaking business. Citing to Honeycutt v. United
    States, 
    137 S. Ct. 1626
     (2017), he argues that that the district court was required to
    trace proceeds from a losing bettor to Pastore himself. We disagree.
    In Honeycutt, the Supreme Court held that courts ordering forfeiture under
    
    21 U.S.C. § 853
    (a)(1) cannot hold a defendant “jointly and severally liable for
    property that his co-conspirator derived from the crime but that the defendant
    himself did not acquire.” 137 S. Ct. at 1630. This Circuit has not yet determined
    “whether Honeycutt’s ruling . . . applies equally in all respects to forfeiture orders
    under other statutes,” United States v. Fiumano, 721 F. App’x 45, 51 n.3 (2d Cir.
    2018); see United States v. Gil-Guerrero, 759 F. App’x 12, 18 n.8 (2d Cir. 2018), but
    even if we were to assume that the holding of Honeycutt applies equally to
    20
    forfeiture under the criminal RICO statute, it would not affect the calculation in
    this case. “While we have not yet fully defined the parameters of Honeycutt,” we
    have clarified that the “bar against joint and several forfeiture for co-conspirators
    applies only to co-conspirators who never possessed the tainted proceeds of their
    crimes.” United States v. Tanner, 
    942 F.3d 60
    , 67–68 (2d Cir. 2019) (emphasis added).
    So, if a defendant at one point possessed proceeds from criminal activity, he “can
    still be held liable to forfeit the value of those tainted proceeds, even if those
    proceeds are no longer in his possession because they have been dissipated or
    otherwise disposed of by any act or omission of the defendant.” 
    Id. at 68
     (internal
    quotation marks omitted).
    In this case, the government demonstrated that Pastore received payments
    from runners and thus possessed proceeds from the illegal gambling operation.
    While the payments may not have always come directly from bettors’ hands, we
    recognize that money is fungible and the payments undoubtedly constituted
    proceeds from the gambling scheme. The district court’s calculation of forfeiture
    based solely on these illegal proceeds paid to Pastore did not conflict with the
    Supreme Court’s holding in Honeycutt, and we thus find no error.
    21
    Finally, although he conceded below that he received proceeds from the
    illegal gambling operation, Pastore asserts on appeal that there was insufficient
    evidence to support forfeiture in the amount of $125,000. In calculating forfeiture,
    a court “may [rely] on evidence already in the record . . . and on any additional
    evidence or information submitted by the parties and accepted by the court as
    relevant and reliable.” Fed. R. Crim. P. 32.2(b)(1)(B); see United States v. Capoccia,
    
    503 F.3d 103
    , 109–10 (2d Cir. 2007).
    Here, the court considered evidence, including wiretapped calls and
    surveillance reports, that the government introduced at a forfeiture hearing to
    prove Pastore’s receipt of at least $125,000 from the gambling operation. Pastore
    stipulated to the authenticity of this evidence and did not call any witnesses to
    impeach the reliability of the evidence. The court’s finding – “well beyond a
    preponderance” – that Pastore received $125,000 in proceeds traceable to the
    gambling operation was not clearly erroneous. Pastore App’x at 94; see United
    States v. Gaskin, 
    364 F.3d 438
    , 461 (2d Cir. 2004) (“[T]he government need prove
    facts supporting forfeiture only by a preponderance of the evidence.”).
    *      *      *
    22
    We have considered Defendants’ remaining arguments and conclude that
    they lack merit. For the foregoing reasons and those in the concurrently filed
    opinion, the district court’s judgment is AFFIRMED.
    FOR THE COURT:
    Catherine O=Hagan Wolfe, Clerk of Court
    23
    

Document Info

Docket Number: 18-2482(L)

Filed Date: 6/8/2022

Precedential Status: Non-Precedential

Modified Date: 6/8/2022

Authorities (24)

United States v. Oscar Roldan-Zapata and Pedro Osario-Serna , 916 F.2d 795 ( 1990 )

United States v. Wayne Gaskin, AKA \"Atiba,\" and Al Castle , 364 F.3d 438 ( 2004 )

United States v. Cavera , 550 F.3d 180 ( 2008 )

United States v. Frank Locascio, and John Gotti , 6 F.3d 924 ( 1993 )

United States v. Lizza Industries, Inc., Herbert Hochreiter , 775 F.2d 492 ( 1985 )

United States v. John Katsougrakis, John Hiotis , 715 F.2d 769 ( 1983 )

United States v. Louis Daidone , 471 F.3d 371 ( 2006 )

United States v. Joanna Pimentel, Also Known as \"La ... , 346 F.3d 285 ( 2003 )

United States v. Payne , 591 F.3d 46 ( 2010 )

United States v. Whitten , 610 F.3d 168 ( 2010 )

United States v. Hertular , 562 F.3d 433 ( 2009 )

united-states-v-anthony-spero-joseph-bissada-also-known-as-quaddafi , 331 F.3d 57 ( 2003 )

United States v. Capoccia , 503 F.3d 103 ( 2007 )

United States v. Jon Geibel, Chad L. Conner, and Gordon K. ... , 369 F.3d 682 ( 2004 )

United States v. Cathryn M. Simmons, United States of ... , 154 F.3d 765 ( 1998 )

United States v. Persico , 645 F.3d 85 ( 2011 )

United States v. Anthony Indelicato , 865 F.2d 1370 ( 1989 )

United States v. Johnson , 567 F.3d 40 ( 2009 )

the-united-states-v-daniel-r-ofchinick-sr-daniel-r-ofchinick-jr , 883 F.2d 1172 ( 1989 )

United States v. Alan Masters, Michael J. Corbitt, and ... , 924 F.2d 1362 ( 1991 )

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