Second Circuit Issues Notable Decision on Sufficiency of Evidence for RICO Conspiracy Conviction and Criteria for Admissibility of Lay Opinion Testimony

In a decision that gives new life to mob-related prosecutions, the Second Circuit has ruled in United States v. Yannotti, 06-5571-cr, 2008 WL 4071691 (2d Cir. September 4, 2008), that an individual may be found guilty of RICO conspiracy based on timely predicate acts committed by co-conspirators.  The case also contains a notable analysis of the distinction between admissible lay testimony and expert testimony.

Facts

Yannotti, an alleged member of the Gambino Crime Family, was convicted after trial of a RICO conspiracy.  The only RICO predicate act of which Yannotti was found guilty was loansharking that predated the five-year statute of limitations.  His co-conspirators, on the other hand, were found guilty of predicate acts of securities fraud and construction-related extortion that fell within the statute of limitations.  On appeal, Yannotti argued that his conviction for RICO conspiracy could not stand absent proof of his personal involvement in a timely charged predicate act. Among other things (including that his twenty-year sentence was based primarily on acquitted conduct), Yannotti also challenged an evidentiary ruling – the fact that, without being qualified as an expert witness, a cooperating witness was permitted to interpret cryptic statements Yannotti made on an intercepted phonecall.   

Evidence to Support RICO Conspiracy

Rejecting Yannotti’s sufficiency argument, the Second Circuit pointed out that to sustain a RICO conspiracy conviction, the government need not prove that Yannotti committed or agreed to commit any predicate acts much less a timely one, but requires merely that he “[knew] of, and agree[d] to, the general criminal objective of a jointly undertaken scheme.”  A reasonable juror could conclude that by becoming a “soldier” in the Gambino Crime Family (which involves pledging “to use any means necessary to further the objectives of the Family”), Yannotti was “by no means limiting [his] participation to his own loansharking.”

Further, Yannotti could be held responsible for the timely predicate acts committed by his co-conspirators even if he knew nothing about them as long as they “fell within the broad pattern of racketeering activity through which Yannotti agreed that he and others would conduct the affairs of the enterprise.” 

The fact that the only predicate act proved against Yannotti occurred outside the five-year statute of limitations was therefore irrelevant.  “[Yannotti] remains liable for RICO conspiracy unless the evidence shows that the conspiracy concluded or he withdrew from that conspiracy more than five years before the indictment.” 

Stay tuned as prosecutors dust off mob-related investigations they previously believed were time-barred . . .

Lay Versus Expert Testimony

Also of note in this decision is the Court’s analysis of the criteria for admission of lay opinion testimony under Fed.R.Evid. 701.  That rule permits a lay witness to testify about opinions and inferences that are “rationally based on the perception of the witness,” as long as they are “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702” (the rule addressing the admission of expert testimony). 

Rejecting Yannotti’s claim that the cooperating witness should only have been permitted to opine on the meaning of Yannotti’s intercepted phonecall as a qualified expert and not as a lay witness, the Court held that “where a witness derives his opinion solely from insider perceptions of a conspiracy of which he was a member, he may share his perspective as to aspects of the scheme about which he has gained knowledge as a lay witness subject to Rule 701, not as an expert subject to Rule 702.”  While loansharking is an unusal activity, the cooperator’s opinion was “reached from his own loansharking experience derived from a reasoning process familiar to average persons . . . [and] did not depend on the sort of specialized training that scientific witnesses or statisticians rely upon when interpreting the results of their own experiments or investigations.”

Stay tuned for this portion of Yannotti to become a battleground, with prosecutors seeking to admit opinion testimony from cooperators on key, disputed fact issues . . .