United States v. Vernace
811 F.3d 609
2d Cir.2016Background
- In 1981 two Shamrock Bar owners (D’Agnese and Godkin) were shot dead after an altercation; participants included Gambino associates Riccardi, Vernace, and Barlin.
- Vernace (a Gambino associate later on the ruling panel) was alleged to have taken part in the murders and to have been involved in heroin distribution in early 1981.
- Indictment and conviction (after a 2013 trial): RICO conspiracy (18 U.S.C. § 1962), § 924(c) firearm offense, and illegal gambling (18 U.S.C. § 1955); jury found nine predicate racketeering acts including the murders and heroin offenses.
- District court sentenced Vernace to life on the RICO conspiracy, +10 years consecutive on § 924(c), and 5 years concurrent on gambling; Vernace appealed.
- On appeal Vernace challenged (1) sufficiency of evidence tying the murders and heroin distribution to the RICO enterprise, (2) application of the post-1998 version of § 924(c), and (3) denial of a new trial based on post-trial disclosure that a government cooperator violated his cooperation agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency: Were the Shamrock Murders "related" to the Gambino RICO enterprise? | Gov't: murders advanced family reputation and enabled enterprise activities; testimony and recordings tied conduct to Gambino goals. | Vernace: killings were a personal dispute over a spilled drink, not related to the family. | Affirmed — sufficient evidence of vertical/horizontal relatedness; murders could reasonably be seen as protecting/enhancing family reputation and enabling racketeering activity. |
| Sufficiency: Was there proof Vernace engaged in heroin distribution related to the enterprise? | Gov't: multiple witnesses identified suppliers as "Ron and Pepe"; Vernace known as "Pepe," calls and recruiting evidence tied him to heroin trafficking. | Vernace: drug activity was personal and unsanctioned by the family, so not related to RICO. | Affirmed — reasonable juror could find Vernace distributed/conspired in heroin and that drug acts related to Gambino activities despite internal prohibitions. |
| § 924(c) applicability and sentence enhancement | Gov't/prosecution used the post-1998 amended § 924(c) (10-year minimum, mandatory consecutive when applicable). | Vernace: conviction and consecutive sentence relied on wrong (later) version of § 924(c) given offense date (1981). | Affirmed — plain-error review fails: error not clear/obvious and harmless (life sentence independent of § 924(c)); defendant did not preserve objection. |
| Newly discovered evidence/new trial | Gov’t disclosed post-trial that a cooperating witness had violated his cooperation agreement (gambling) since ~2010. | Vernace: the disclosure impeaches the cooperator and warrants a new trial. | Affirmed — district court did not abuse discretion: new information was cumulative/impeaching and unlikely to produce acquittal given cooperator's admitted serious crimes. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (pattern/relatedness test under RICO)
- United States v. Indelicato, 865 F.2d 1370 (en banc) (RICO relatedness and limits on isolated acts)
- United States v. Bruno, 383 F.3d 65 (2d Cir.) (distinguishing personal shootings from RICO-related acts)
- United States v. Minicone, 960 F.2d 1099 (pattern analysis in organized crime cases)
- United States v. Burden, 600 F.3d 204 (vertical relatedness where violence enhanced enterprise respect)