United States v. Antico
2012 U.S. App. LEXIS 17005
2d Cir.2012Background
- Antico was convicted at trial of racketeering conspiracy under 18 U.S.C. § 1962(c) and illegal gambling, with the jury also convicting on other counts.
- The government relied on four predicate acts, including conspiracy to extort/rob Gulinello and illegal gambling, to support the racketeering conviction.
- Evidence included extensive wiretaps and recorded conversations showing Barrafato, Lento, Martino, and Antico discussing a plan to rob a Pick 6 winner (Gulinello).
- Antico challenged the sufficiency of the evidence for conspiracy to rob/extort Gulinello, the use of an anonymous jury, and his sentence.
- The district court empaneled an anonymous jury based on concerns about jury protection and Antico’s history of jury tampering.
- At sentencing, the court used acquitted conduct (the plan to rob Antonelli) as relevant conduct under U.S.S.G. § 1B1.3, despite acquittal on that charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy to rob/extort | Antico argues there is insufficient evidence of the specific robbery conspiracy. | Antico asserts the recordings do not prove a New York robbery as defined. | Sufficient evidence supported knowing participation in the conspiracy. |
| Anonymous jury constitutional and discretionary propriety | Antico challenges the use of an anonymous jury as unconstitutional and discretionary abuse. | Antico contends anonymity prejudicially undermines his rights. | District court acted within discretion; anonymity upheld with safeguards. |
| Reliance on acquitted conduct for sentence | Antico contends sentencing relied on acquitted conduct, violating rights. | Antico argues the court erred in treating acquitted conduct as relevant. | District Court did not clearly err; permissible under Watts, with substantial downward variance. |
Key Cases Cited
- United States v. Hassan, 478 F.3d 108 (2d Cir. 2008) (defer to jury on conspiracy credibility; standard of review)
- United States v. Friedman, 300 F.3d 111 (2d Cir. 2002) (specificity of conspiracy elements required)
- United States v. Torres, 604 F.3d 58 (2d Cir. 2010) (circumstantial evidence; defer to jury inferences)
- United States v. Watts, 519 U.S. 148 (S. Ct. 1997) (acquitted conduct as relevant conduct for sentencing; preponderance standard)
- United States v. Vario, 943 F.2d 236 (2d Cir. 1991) (juror protection and anonymity considerations)
- United States v. Jackson, 335 F.3d 170 (2d Cir. 2003) (circumstantial evidence and inferences in conspiracy cases)
- United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977) (evidence of conspiracy and participation may be circumstantial)