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Media Alerts - United States v. Vernace - Second Circuit
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February 2, 2016
  United States v. Vernace - Second Circuit
Headline: Second Circuit Affirms the RICO Conviction of Gambino Crime Family Boss

Area of Law: Criminal

Issue Presented: Whether the evidence presented at trial regarding defendant's role in 30-year-old murders and drug trafficking for Gambino crime family was sufficient to sustain the defendant's conviction under the Racketeering Influenced and Corrupt Organizations Act ("RICO").

Brief Summary: Defendant Bartolomeo Vernace was convicted following a jury trial of: (1) conspiring to engage in a racketeering enterprise, in violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c)-(d); 2) using, carrying and possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), and 3) operating an illegal gambling business, in violation of 18 U.S.C. § 1955, based upon his role in the 30-year old murders of the owners of Shamrock Bar in Queens, New York (the "Shamrock Murders"). During his trial in the United States District Court for the Eastern District of New York, evidence was presented that Vernace was a member of the Gambino crime family, one of five organized crime families operating at that time in New York City, and that the Gambino crime family engaged in a pattern of criminal enterprises in order to generate money for its members. The trial also established that, at the time of his arrest in 2011, Vernace was a member of the Gambino crime family's three person ruling panel, which placed him in charge of the operations of the organization.

The District Court entered judgment against Vernace and Vernace appealed, claiming that the evidence was insufficient for the jury to find that the predicate Shamrock Murders and additional heroin distribution offenses were related to the RICO conspiracy and that he was convicted under the wrong firearms statute. He also argued that newly discovered evidence mandated a new trial. The United States Court of Appeals for the Second Circuit rejected each of Vernace's arguments and affirmed.

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...7bb3e7ad327/1/hilite/

Extended Summary:
RICO laws are designed to combat organized crime by making it unlawful to engage in a "pattern of racketeering activity." To prove a RICO violation, the government must establish a pattern of at least two predicate racketeering acts, such as murder or drug trafficking, that occur within ten years of each other. In order to prove that the predicate acts constitute a pattern of criminal activity, they must have the "same or similar purposes, results, participants, victims, or methods of commission." However, the government is not required to prove that the predicate offenses were committed in furtherance of the of the organization's activities. At trial, the jury found that Vernace's involvement in the Shamrock Murders and his drug distribution in early 1981 served as the two predicate racketeering acts to convict him of the RICO charge.

On appeal, Vernace argued that there was insufficient evidence to support a RICO violation, since the Shamrock Murders were not related to the activities of the Gambino crime family. The Second Circuit rejected this argument and found that the evidence was sufficient for the jury to infer that the Vernace's participation in the Shamrock Murders was related to the Gambino family's organized crime activities. The Court noted that the Shamrock Murders had occurred as a result of a perceived insult to Gambino associate, Frank Riccardi. Riccardi then contacted Vernace and another Gambino member. All three men then proceeded to the Shamrock Bar and killed the two victims. The Court found that the jury could reasonably
conclude from this evidence that Vernace participated in the Shamrock Murders in order to preserve the Gambino family's reputation as well as his own.

Vernace also argued that the government failed to establish that his alleged heroin distribution in early 1981 had been related to the Gambino crime family. However, the Court rejected this argument, finding that members of the Gambino family were known to distribute drugs in order to increase the profit of their criminal enterprise. As such, it was reasonable for the jury to conclude that the defendant's alleged heroin distribution related to the Gambino crime family.

Vernace next argued that he was convicted and sentenced under an incorrect version of § 924(c), which makes it a crime to use or unlawfully carry a firearm in relation to a felony. Specifically, he argued that the district court erred in applying the recently amended version of § 924(c), which carries a mandatory consecutive sentence, rather than the version that had been in effect in 1981. The Second Circuit concluded that even if the district court erred, the error was harmless as Vernace was sentenced to life imprisonment on the RICO count alone.

Finally, the Second Circuit found that Vernace was not entitled to a new trial on the basis of newly discovered evidence. After the trial, the government had informed the defense that one of the government's witnesses had violated his cooperation agreement. Vernace claimed that this revelation warranted a new trial since the defense could have used this information to impeach the cooperating witness' testimony. The Second Circuit rejected this argument, pointing out that the witness was impeached on a number of prior crimes, and this revelation would not have impacted the outcome of the trial. As such, the district court did not abuse its discretion in refusing to grant Vernace a new trial.

To read the full opinion, please visit http://www.ca2.uscourts.gov/de...7bb3e7ad327/1/hilite/

Panel: Judges Sack, Chin, and Droney

Argument Date: 9/18/2015

Argument Location: New York, New York

Date of Issued Opinion: 2/2/2016

Docket Number: 14-2197-cr

Decided: Affirmed

Case Alert Author: Brian Byrne

Counsel: M. Kristin Mace, Assistant United States Attorney (David C. James, Amy Busa, Evan M. Norris, Amir H. Toossi, Assistant United States Attorneys, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee. Seth Ginsberg, Law Office of Seth Ginsberg, New York, New York, for Defendant‐Appellant.

Author of the Opinion: Judge Chin

Circuit: Second Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 02/02/2016 07:39 PM     2nd Circuit  

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