United States v. Persico
2011 U.S. App. LEXIS 9019
| 2d Cir. | 2011Background
- Persico and DeRoss, high-ranking Colombo Family members, were convicted of murder in aid of racketeering, witness tampering, and conspiracy tied to Cutolo's disappearance and presumed death in 1999.
- The government's case rested on circumstantial evidence of Cutolo's murder, Mafia practices, and communications among Colombo leaders and associates, including recordings and testimony from family members and FBI agents.
- Cutolo’s body was not found at trial, but the government presented evidence that he was dead and that Persico and DeRoss had orchestrated his murder while positioning themselves in the family.
- A key trial theory was that Cutolo was lured to a Brooklyn location for a routine meeting at 92nd Street and Shore Road, where Persico could arrange Cutolo’s murder, consistent with mafia luring practices.
- After Cutolo disappeared, DeRoss sought the Colombo books and records, and later statements and conduct suggested Cutolo was dead, with DeRoss and Persico asserting control over the family.
- In posttrial motions, the discovery of Cutolo’s buried body in 2008 prompted new-trial requests, which the district court denied, holding the new evidence did not undermine the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Peggy Cutolo testimony about meeting location | Persico contends the testimony was improper hearsay; DeRoss argues it should be excluded. | Persico argues lack of independent basis; DeRoss argues Rule 804b(3) support invalidates admissibility. | No abuse; testimony admitted as admissible under Rule 803(3) and Rule 804(b)(3). |
| Sufficiency of evidence for murder in aid of racketeering | Government argues Persico/DeRoss ordered and planned Cutolo’s murder to maintain power. | Defendants claim insufficient direct evidence of involvement in murder. | Evidence sufficient to sustain the murder conviction. |
| Sufficiency of evidence for witness-tampering counts | Government demonstrates DeRoss/Persico sought to influence Cutolo relatives to hinder testimony. | Defendants challenge nexus and intent to influence official testimony. | Evidence supports conviction on both tampering and conspiracy counts. |
| New trial based on discovery of Cutolo's body | Buried body contradicts government's sea-disposal theory and could imply innocence/unfairness. | New evidence undermines core trial theory; could warrant acquittal. | District court did not abuse discretion; new evidence did not merit new trial. |
| Brady violation due to late disclosure about Peggy's funds | Government allegedly suppressed material impeachment information about Peggy's $1.65 million cash. | Late disclosure prejudiced defense and impacted credibility. | No material Brady violation; disclosure timing did not change outcome. |
Key Cases Cited
- Hillmon, 145 U.S. 285 (U.S. Supreme Court 1892) (statements of intent admissible to prove future conduct of declarant)
- Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (U.S. Supreme Court 1892) ( Hillmon doctrine on statements of intent)
- United States v. Delvecchio, 816 F.2d 859 (2d Cir. 1987) (limits on using declarant's intent to prove third-party conduct)
- United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) (Rule 803(3) admissibility and abuse of discretion review)
- United States v. Williams, 506 F.3d 151 (2d Cir. 2007) (Rule 804(b)(3) and hearsay exceptions framework)
- United States v. Best, 219 F.3d 192 (2d Cir. 2000) (Hillmon-type admissibility principles in 803(3))
- United States v. Garris, 616 F.2d 626 (2d Cir. 1980) (evidence of statements tending to criminal liability)
- United States v. Kaplan, 490 F.3d 110 (2d Cir. 2007) (nexus and familiarity with witness testimony in 1512 cases)
- United States v. Ragosta, 970 F.2d 1085 (2d Cir. 1992) (evidence evaluation and inference re: sufficiency of circumstantial proof)
- United States v. Jackson, 443 U.S. 307 (U.S. Supreme Court) (standard for reviewing sufficiency of evidence)
- Glasser v. United States, 315 U.S. 60 (U.S. Supreme Court) (jury credibility and weight of evidence)
- Eppolito, 543 F.3d 25 (2d Cir. 2008) (standard for reviewing sufficiency of circumstantial evidence)