Third Circuit Upholds Mob Convictions

By George Anastasia
For BigTrial.net

An appeals court has upheld the convictions of mobsters Joseph "Mousie" Massimino, Damion Canalichio and Anthony Staino, all of whom are serving lengthy prison sentences following their convictions in 2013.

"The evidence established that the Philadelphia (La Cosa Nostra)...exercised control over illegal gambling, bookmaking and loansharking operations, all bolstered by implicit and explicit threats of physical violence," a three-judge panel for the Third Circuit Court of Appeals ruled in an opinion filed earlier this month.

The ruling also reaffirmed the sentences of Massimino (188 months), Canalichio (137 months) and Staino (97 months) that were imposed by U.S. District Court Judge Eduardo Robreno who had presided over the controversial racketeering case.

Mob boss Joseph "Uncle Joe" Ligambi and mob capos Joseph "Scoops" Licata and George Borgesi beat the charges that were built around the testimony of cooperating witnesses and undercover FBI agents. (Ligambi and Borgesi were tried twice after the jury hung on some of the charges during the first trial.)

A seventh defendant, Gary Battaglini was also found guilty but his case remains in front of Robreno who has yet to schedule a hearing on post-trial motions Battaglini has filed, including an argument that he had ineffective counsel during the trial and that prosecutors had deliberately withheld evidence that would have exonerated him.

The appellate court ruling comes as federal and state authorities have opened a new investigation into the operations of the Philadelphia branch of Cosa Nostra, focusing on real estate, construction and mortgage refinancing businesses reportedly linked to several members of the crime family. Investigators are also revisiting the cold case files of three unsolved mob murders, according to sources familiar with the investigation.

The appellate court opinion rehashed several of the controversial issues raised during the racketeering trial in 2013, a trial in which defense attorneys had argued that the government had overreached in an attempt to build a racketeering conspiracy where none existed.

"So, what we’re saying loud and clear is...there was no racketeering conspiracy, there never was...It didn’t happen," Ligambi's lawyer, Edwin Jacobs Jr., told the jury in his opening statement back in October 2012.

What's more, Jacobs added, "It is not a crime to be associated with or a member of the Mafia … In America, you can be a member of almost anything. It’s not what you’re a member of, it’s what you do. That is not the charge in this case, just being a member of the Mafia. They make it sound like that, but that’s not the charge in this case because that is not a crime."

Guilt by association and by gossip and innuendo were the recurring arguments of the defense during the trial which stretched into February 2013 and included a grueling 21 days of jury deliberation. One juror was dismissed and motions for a mistrial and for the dismissal of two other jurors were denied by Robreno as both the prosecution and defense questioned whether the jury truly understood the meaning of racketeering and conspiracy. 

But the appellate court ruled that none of the challenges raised by the defense during the trial or in their appeal motions merited a reversal of the convictions or an order for a new trial.

Among other things, the panel cited the testimony of several government witnesses who said they were intimidated by the defendants.

These included bookmaker Jack Buscemi who said he routinely paid "Christmas money" to Massimino and the mob in order to avoid any "disruption" in his gambling business. Buscemi said he paid $7,500 each year beginning in 2002 through 2007.

The court also noted the testimony of Joseph Procaccini who said Ligambi, Massimino and Staino strong armed their way into his video poker machine business, taking it over against his will and trying to hide the takeover by paying him $65,000. That, Procaccini had testified, was substantially less than the business was worth; a business, he added, that he did not want to sell.

But he said he and his business partner knew "we would get hurt if we didn't play ball with them."

The court also rejected an argument by Massimino that a personal letter he had sent to a friend while Massimino was an inmate in a New Jersey State Prison should not have been entered as evidence because the seizure and disclosure of the letter by prison and federal authorities violated his constitutional rights.

The court, however, found that authorities had the right to examine Massimino's correspondence which were the subject of a federal grand jury subpoena and which, the court ruled, could reasonably be considered "related to Massimino's ongoing participation in illegal (Cosa Nostra) activities."

In the letter, which was read in open court, Massimino prevailed upon a friend to collect a $35,000 debt that Massimino claimed another man owed him.

"He better get my fuckin' money," Massimino wrote. "I don't care who the fuck he owes, he better get mine. The motherfucker owes me 35,000. I don't care if he has to rob a bank. He fuckin' better get my money."

In upholding Massimino's conviction, the court rejected his argument that the debt was personal and had nothing to do with mob activities. The court also turned a deaf ear to Massimino's contention that he was not, as authorities claimed, the underboss of the crime family.

Massimino had argued in his appeal that he was "just another made guy" and was not part of any conspiracy.

Similar claims focusing on the lack of evidence to support the charges and the lack of credibility of some government witnesses did not rise to a level that would justify overturning the convictions, the panel ruled.

It also noted that two FBI undercover agents had infiltrated the organization and had taped incriminating conversations with either Canalichio or Staino.

In another FBI-related appeals issue, the defendants had argued that their lawyers were improperly denied the right to question three Philadelphia-based FBI agents about a disciplinary action against them. The agents had worked the racketeering case and had testified for the government.

The court said that the three agents along with several other members of the FBI "were administratively sanctioned after an investigation revealed that they and other agents had improperly consulted an answer key while taking a test on FBI internal investigation guidelines."

An FBI investigation, the court noted, determined that the agents had shown "a serious lack of judgment" but had not committed an act of dishonesty or untruthfulness. The defense hoped to argued that the agents had cheated on a test and were less than credible. One agent was suspended for two days and two others were suspended for one day because of their conduct while taking the test.

But the appeals court upheld Judge Robreno's ruling during the trial that the issue was irrelevant to the racketeering case and would have been "more prejudicial than probative." What's more, the appeals panel found, allowing the agents to be questioned about the test issue "would have required a lengthy detour in an already complex trial."

In most cases, the appellate court is the last chance for defendants to have their convictions overturned. Barring some other issue surfacing or the unlikely prospect of a successful appeal to the U.S. Supreme, Massimino, Canalichio and Staino will have to complete their sentences before returning home.

In the past three years, mobsters who had served even more time have in fact returned to South Philadelphia. Many of them are now the focus of the current federal investigation. The more things change, the more...

Or as Judge Robreno said in sentencing the oft-convicted Massimino back in July 2013:
"I can only conclude, Mr. Massimino, that you don't get it. You have dedicated your life to a life of crime, something that is not permitted in a civilized society."

George Anastasia can be reached at George@bigtrial,net.