2010-08-13 olivieri govt's mot in limine
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA :
:-v.- :
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JOSEPH OLIVIERI, : S3 08 Cr. 828 (VM)
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Defendant. :
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GOVERNMENTS MOTIONS IN LIMINE WITH RESPECTTO DEFENDANT JOSEPH OLIVIERI
PREET BHARARA
United States AttorneySouthern District of New York
Attorney for the United States
of America
LISA ZORNBERG
MARK LANPHER
Assistant United States Attorneys
- Of Counsel -
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Prior to filing this motion, the Government conferred with defense counsel for Olivieri1
about the evidence in question. Defense counsel was unwilling to consent or stipulate to the
admissibility of any of the subject evidence prior to the due date for this motion. Defense
counsel indicated, however, that he would consider the matter further after the Government filed
1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA :
:-v.- :
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JOSEPH OLIVIERI, : S3 08 Cr. 828 (VM)
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Defendant. :
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GOVERNMENTS MOTIONS IN LIMINE WITH RESPECT
TO DEFENDANT JOSEPH OLIVIERI
The Government respectfully submits this motion in limine to apprise the Court
and defense counsel of certain categories evidence that the Government will seek to offer at trial.
As discussed below, the evidence in question is admissible as direct evidence of the charged
offenses, or alternatively, as prior bad act evidence admissible under Rule 404(b) of the Federal
Rules of Criminal Procedure.
These categories of evidence include: (1) evidence that, in 2004, Louis
Moscatiello, Sr., (Moscatiello) was convicted of committing crimes through his membership in
the Genovese Organized Crime Family of La Cosa Nostra (the Genovese Family), including
crimes to defraud the Carpenters Union and other unions; (2) evidence of Olivieris association
with the Genovese Family; and (3) evidence of Olivieris pre-August 2004 payment of
meal/expenses for union officials including co-defendant Michael Forde.1
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its motion. Accordingly, the Government will follow up with defense counsel and advise the
Court if any of the matters raised in this motion have been resolved by the parties.
2
The first two categories of evidence addressed by this motion relate to the perjury
count charged in Count Twenty-Two of the S6 Indictment. In that count, Olivieri is charged with
making false statements at a December 18, 2007 deposition in the Civil RICO case about his
relationship and dealings with Louis Moscatiello, Sr., a now-deceased member of the Genovese
Family, and James Murray, the owner of On Par. (Indictment 85). To convict Olivieri of the
charged perjury, the Government must prove that Olivieri (1) knowingly made (2) one or more
materially false declarations (3) under oath (4) in a proceeding before or ancillary to any court of
the United States. See 18 U.S.C. 1623; Leonard B. Sand, et al., Modern Federal Jury
Instructions - Criminal 48.03. Olivieri does not appear to contest the third or fourth element,
i.e., that his deposition in the Civil RICO case was taken under oath in a proceeding before or
ancillary to a United States court. But the first two elements of the perjury charge are clearly in
dispute, as reflected by Olivieris previously-filed pretrial motions in this case. The first two
categories of proffered evidence are directly relevant to the knowing falsity of Olivieris
testimony and its materiality to the Civil Rico case.
1. Evidence of Moscatiellos Membership in the Genovese Family and Past Convictions
Is Admissible To Prove the Charged Perjury
At trial, the Government will seek to introduce evidence of Moscatiellos
membership in the Genovese Family, and of Moscatiellos 2004 conviction of crimes committed
through the Genovese Family against the Carpenters Union and other unions. Such evidence is
directly relevant to proving the materiality element of the perjury court, specifically, to explain
why the Government sought to depose Olivieri in the Civil RICO case, why Judge Haight
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permitted that deposition, and why Olivieris false statements about his relationship with
Moscatiello were material to the Civil RICO case.
A. Relevant Background
The events which led to Olivieris December 2007 deposition in the Civil RICO
case are detailed in the Governments Opposition to the Pretrial Motions of Defendants John
Greaney and Joseph Olivieri, dated April 30, 2010 (Gov. Opp.), at 24-41, and in attached
Exhibits D through L. This evidence includes, among other things, the Governments August 23,
2007 written application to Judge Haight setting forth its basis for seeking to depose Olivieri
about his relationship with Moscatiello (the Application, Exhibit G), and Judge Haights order
dated October 25, 2007, permitting the deposition. (Exhibit I).
As this evidence reflects, the Government sought to depose Olivieri in the Civil
RICO case based largely upon its good-faith belief that Olivieri had a relationship with
Moscatiello, and the fact that Moscatiello had been convicted of committing crimes through his
membership in the Genovese Family against the Carpenters Union (of which Olivieri was a
benefit funds trustee), against Local 530 of the Plasterers union (of which Olivieri was likewise
a benefit funds trustee), and against Locals 14 and 15 of the International Union of Operating
Engineers. (See Ex. G). The Government attached to its Application a copy of Moscatiellos
October 12, 2004 plea agreement with the Government, in which Moscatiello agreed to plead
guilty to six criminal charges two RICO counts, three conspiracy counts, and an extortion count
all relating to Moscatiellos extortion, embezzlement, and defrauding of these unions and/or
their benefit funds through his membership in the Genovese Organized Crime Family. (Id.)
Those criminal charges were set forth against Moscatiello in Indictment 03 Cr. 229 (NRB) and
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The Governments Application to depose Olivieri in the Civil RICO case also cited to2
testimony given by Local 14 business manager Joseph Rizzuto, Sr., during the trial of United
States v. Amiccuci, about Olivieris and Moscatiellos efforts to coerce Rizzuto to do the bidding
of the Genovese Family. As discussed below, infra, the Government intends to call Joseph
Rizzuto, Sr., at trial. The Governments Application also cited a 2005 judicial order in which
United States District Judge John Gleeson disbanded Local 530 of the Plasterers Union after
finding that Moscatiello, a Genovese gangster, had founded and operated Local 530 through
systemic corruption and organized crime influence. See Gov. Opp., Ex. G at 1-2, n.1 (citing
Drywall Tapers and Pointers of Greater New York, Local 1974 v. Local 530 of the Operative
Plasterers and Cement Masons Intl Assn, No. 98-CV-7076, 2005 WL 638006, at *3
(E.D.N.Y. Mar. 17, 2005)). It is undisputed that for a number of years, Olivieri held the position
of Local 530 benefit funds trustee.
4
Information S5 03 Cr. 229 (NRB). Moscatiello was convicted of the charges on October 13,
2004, at a consolidated proceeding in which he pled guilty before Judge Buchwald in United
States v. Moscatiello, 03 Cr. 229 (NRB); S5 03 Cr. 229. 2
Specifically with respect to the Carpenters Union, Moscatiello pled guilty to
conspiring to commit benefit plan embezzlement and mail fraud, and conspiring to make false
statements in ERISA documents submitted to the District Council Benefit Funds, by allowing a
contractor to violate the terms of its collective bargaining agreement at the Kings County
Hospital expansion project by, among other things, paying workers off-the-books, employing
non-union workers, not paying workers union-scale wages, and misrepresenting the number of
workers on reports submitted to the District Council and the District Council employee benefit
funds. (Moscatiello Plea Agreement at 3, attached to Ex. G).
In permitting the Government to depose Olivieri in the Civil RICO Case, Judge
Haight relied heavily on the fact that Moscatiello had admitted, through his guilty plea, to
conspiring to defraud the District Council Benefit Funds on a jobsite through precisely the sort
of job site corruption that was a focus of the pending litigation then before the court. (Ex. I at
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While Moscatiellos conviction of these crimes, by itself, establishes Moscatiellos3
membership in the Genovese Family, the Governments proposed proof of the perjury charge
will also include the testimony of Joseph Rizutto, Sr., Artie Johansen, and FBI Agent Joy Adam,
see infra, each of whom provides additional evidence of Moscatiellos membership in the
Genovese Family.
5
11-12) (quoting Moscatiellos plea agreement at length). Judge Haight authorized the
Government to depose Olivieri about his contacts with, and knowledge of, Moscatiello or other
organized crime figures relating to corruption on Carpenters Union jobsites. (Exs. I, L).
Subsequently, in his deposition testimony, Olivieri testified under oath that he
never met with Moscatiello (Indictment 81(i)); never made arrangements to see
Moscatiello (id. 81(ii)); had no recollection of ever discussing any kind of business with
Moscatiello (id. 81(iii)); did not recall having any conversations with Moscatiello about the
construction industry (id. 81(iv)); and did not have a relationship with Moscatiello (id. 8)).
See also Gov. Opp., Exhibit M at 164-177) (attaching deposition testimony). Each of these
statements is alleged as a basis for Olivieris perjury charge in Count Twenty-Two.
B. Discussion
By this motion in limine, we specifically seek to admit (i) Indictment 03 Cr. 229
(NRB) and Information S5 03 Cr. 229 (NRB), charging Moscatiello with committing the above-
described crimes through his membership in the Genovese Family; and (ii) Moscatiellos
judgments of conviction of those crimes.3
This proposed evidence is admissible as directly relevant to materiality, a
contested issue. For the jury to evaluate whether Olivieris false statements about his
relationship with Moscatiello were material to the Civil RICO case i.e., that truthful responses
by Olivieri could have influenced Judge Haight or the Government in the enforcement of the
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Consent Decree or in matters being litigated in the Civil RICO case (see Courts Order dated July
29, 2010, at 11, addressing materiality standard) the jury must be provided with information
about who Moscatiello was, and why the Government sought to depose Olivieri about the
relationship Olivieri had with him. Indeed, if Moscatiello were just some random guy, then
Olivieris false testimony about his relationship with Moscatiello might well have been
immaterial to the Civil RICO case. But it was precisely because the Government and Judge
Haight understood Moscatiello not to be some random guy, but rather a Genovese member who
had been convicted of criminal conduct involving the Carpenters Union, that Olivieris false
testimony was material to the Civil RICO case.
In addition, the proposed evidence is admissible as necessary background, to
provide the jury with factual context for why Olivieri was deposed in the Civil RICO case. As
indicated, Moscatiellos membership in the Genovese Family and 2004 convictions were key to
the factual context surrounding the taking of Olivieris deposition. It is well established that a
trial court may admit evidence that does not directly establish an element of the offense charged,
in order to provide background for the events alleged in the indictment. Background evidence
may be admitted to show, for example, the circumstances surrounding the events or to furnish an
explanation of the understanding or intent with which certain acts were performed. United
States v. Gonzalez, 110 F.3d 936 (2d Cir. 1997); see also United States v. Quinones, 511 F.3d
289, 309 (2d Cir. 2007). Here, the complete story of why the Government sought to depose
Olivieri in the Civil RICO case, and why Judge Haight permitted questioning relating to
Moscatiello, goes directly to the materiality element of the charged perjury offense. See United
States v. Canales, F. Supp. 2d , 2010 WL 2505578, at *1 (VM) (S.D.N.Y. Jun. 7, 2010)
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(Evidence of other bad acts may be admitted to provide the jury with the complete story of the
crimes charged by demonstrating the context of certain events relevant to the charged office)
(quoting United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994)).
In particular, the fact that both the Government and Judge Haight cited to
Moscatiellos conviction of defrauding the District Council Benefit Funds through his
membership in the Genovese Family as relevant to the deposition of Olivieri in the Civil RICO
case is proof that Olivieris subsequently-given false testimony about Moscatiello was material.
Olivieri was a trustee of the District Council Benefit Funds during the time period of
Moscatiellos admitted offense conduct, and the Consent Decree expressly prohibited knowing
association with organized crime members or associates. Evidence of whether Olivieri was an
associate of Moscatiello, and had a relationship that in part concerned the Genovese Familys
efforts to defraud the Carpenters Union and its benefit funds, was thus of obvious relevance to
the Civil RICO case. The Indictment and Information setting forth the criminal charges against
Moscatiello, and his convictions of those charges, were a matter of public record prior to the
Government seeking to depose Olivieri in 2007, and a factor that both Judge Haight and the
Government relied upon (combined with the Governments good-faith belief that Olivieri had a
relationship with Moscatiello) as a basis for the taking/authorizing of Olivieris deposition.
Because evidence of Moscatiellos convictions and membership in the Genovese
Family is directly relevant to the charged perjury offense, and an integral part of the factual
context surrounding Olivieris deposition, the probative value of this evidence outweighs any
potential prejudice to Olivieri. Federal Rule of Evidence 403 provides that relevant evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
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prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403. Evidence is
not excludable under Rule 403 simply because it is prejudicial. What prejudice as used in
Rule 403 means is that the admission is, as the rule itself literally requires, unfair rather than
harmful. United States v. Jimenez, 789 F.2d 167, 171 (2d Cir. 1986). The prejudice that Rule
403 is concerned with involves some adverse effect . . . beyond tending to prove the fact or issue
that justified its admission into evidence. United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir.
1995) (quoting United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980)). Here, the evidence
the Government seeks to introduce regarding Moscatiellos Genovese membership and prior
criminal convictions is not unfairly prejudicial, but rather goes to the core of why the
Government deposed Olivieri about his relationship with Moscatiello and why Olivieris false
deposition testimony was material to the Civil RICO case. Moreover, the Government has no
objection to the Court providing an appropriate limiting instruction to the jury to minimize any
arguable prejudice.
The Government has given considerable thought to how to present evidence of
Moscatiellos Genovese membership and crimes against the Carpenters Union and other unions.
The most natural way to put in this evidence would be to admit the Governments August 2007
Application to depose Olivieri, and Judge Haights October 2007 permitting the deposition
both of which cited extensively to Moscatiellos guilty plea. However, to avoid raising any
potential Confrontation Clause through admission of Moscatiellos guilty plea, see Crawford v.
Washington, 541 U.S. 36, 59 n. 9 (2004), the Government will work with defense counsel over
the coming days in an effort to reach a stipulation as to the admissibility of this evidence. At a
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minimum, the Government will seek to offer the charging instruments against Moscatiello and
his judgments of conviction neither of which raise any Confrontation Clause issue. The
Government also expects to introduce the testimony of Benjamin Torrance, the Assistant United
States Attorney who was responsible for handling the Civil RICO Case in 2007, and who sought
to depose Olivieri and ultimately took Olivieris deposition. AUSA Torrance is expected to
explain to the jury what matters were pending in the Civil RICO case in 2007, and why the
Government sought to depose Olivieri about his relationship with Moscatiello.
2. Evidence of Olivieris Association with the Genovese Family Is Admissible to Prove
the Perjury Count
To prove the charged perjury count, the Government will seek to offer evidence of
Olivieris association with the Genovese Family. This evidence also constitutes direct proof of
the perjury count. For example, whereas Olivieri testified that he never met with Moscatiello,
never made arrangements to see Moscatiello, and had no recollection of ever discussing any
business matters with Moscatiello, the Government will seek to introduce evidence
demonstrating that Olivieri in fact met with Moscatiello on multiple occasions, at planned
meetings relating to the business of the Genovese Family. Simply put, evidence of Olivieris
association with the Genovese Family is directly probative of (i) the falsity of Olivieris sworn
statements about his relationship with Moscatiello, (ii) Olivieris knowledge of the falsity of his
statements, and (iii) the materiality of Olivieris false statements to the Civil RICO case.
The Government notes that it does not intend to offer every witness and piece of
evidence at its disposal concerning Olivieris association with the Genovese Family; rather, the
Government discriminately seeks to offer evidence that is probative of Olivieris relationship
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Pursuant to a cooperation agreement with the Government, Rizzuto pled guilty to one4
count of conspiracy to receive unlawful labor payments, in violation of 18 U.S.C. 371; one
count of honest services mail fraud in violation of 18 U.S.C. 1341, 1346, and 2; and one count
of receiving unlawful labor payments, in violation of 29 U.S.C. 186. In December 2009,
Rizzuto was sentenced to a term of probation.
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with Moscatiello (which necessarily entails an explanation of his ties to the Genovese Family) to
prove the charged perjury offense. Currently, the Government expects to offer: testimony from
two lay witnesses who have personal knowledge of Olivieris association with the Genovese
Family and Moscatiello, and who witnessed meetings of Olivieri and Moscatiello; testimony
from law enforcement officers who surveilled meetings of Olivieri and Moscatiello; and a 2004
recorded conversation in which a Genovese member and associates discussed Olivieris
association with Louis [Moscatiello] and Vinny DiNapoli, another Genovese member. A
summary of this proffered evidence is set forth below.
(a) Testimony of Joseph Rizzuto
Joseph Rizutto was business manager of Local 14 of the Operating Engineers
Union from approximately 1989 through 2000. Prior to that he was president and business agent
of Local 14 from approximately 1974 through 1989. Rizzuto is a cooperating witness of the
Government.4
Rizzuto is expected to testify that the Genovese Family had claimed Local 14
and exerted influence over the local for years. Among other things, the Genovese Family
pressured Rizzuto and other union officers to give preferential treatment to Genovese Family
members and associates, and to their relatives, for admission into the local. To keep the mob
happy and at bay, Rizzuto acceded to these requests, and mob-connected individuals were given
membership books despite their inability in some cases to operate the equipment covered by
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the local. Early on, after becoming a business agent, Rizzuto was also alerted by a fellow Local
14 business agent of Vinny DiNapolis powerful status within the Genovese Family, and was
directed not to give DiNapoli a hard time on jobsites within Local 14s jurisdiction. In fact,
Vinny DiNapoli at one point personally recruited Rizutto to become involved in the Genovese
Family. Rizzuto declined those recruitment efforts.
The Genovese Family always had someone acting as its designated contact person
with Local 14, who delivered messages on behalf of the Genovese Family to Rizzuto (and to
Rizzutos predecessor). For a short period of time in the late 1990s, that contact person was
Joseph Olivieri. In or about 1999, Olivieri (who went by the nickname Rudy) informed
Rizzuto that he represented the Genovese Family, and visited Rizzuto at the union hall on
multiple occasions. Olivieri approached Rizzuto on at least three or four occasions to obtain
union books for organized-crime connected individuals, including a person Olivieri referred to as
the the bosss relative.
Rizzuto planned to retire from the union in 2000, and for his son (Joseph Rizzuto,
Jr.) to replace him as Local 14s business manager. As Rizzutos anticipated retirement
approached, Olivieri paid Rizzuto a visit to relay the message that the people Olivieri represented
wanted Joe Coriasco who Rizzuto knew to be connected to organized crime to be appointed
assistant business manager of the local. Rizzuto resisted, believing that appointment of Coriasco
to an assistant manager position would, among other things, undermine his sons standing with
the members and the chances of his son being elected business manager. Rizzuto also feared that
appointment of Coriasco to a non-elected, senior officer position would make Local 14s benefit
funds vulnerable to organized crime influence and embezzlement something Rizzuto had
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prevented up to that point.
Olivieri returned to the union hall several times to repeat the same message to
Rizzuto, i.e. that the Genovese Family wanted Coriasco appointed assistant business manager.
Rizzuto continued to resist. At an industry conference in Florida, in February 2000, Olivieri
approached Rizzuto to press the subject again. Olivieri threatened Rizzuto that he (Rizzuto) had
better not forget his obligations to organized crime or he could find himself in a world of hurt.
Olivieri also said that Rizzuto now would have to see Olivieris boss.
Not long thereafter, Olivieri approached Rizzuto at a function hosted by the Wall
& Ceiling Association at a country club on Long Island. Olivieri told Rizzuto they needed to talk
and proceeded to drive Rizzuto to a hotel near LaGuardia Airport, where Olivieri escorted
Rizzuto to a hotel room. When Rizzuto entered the hotel room, Moscatiello was inside waiting
for him. Moscatiello, Olivieri, and Rizzuto were present in the hotel room during this meeting.
Moscatiello physically patted Rizzuto down looking for a wire, commenting that he
(Moscatiello) had once been burned by a union delegate wearing a wire (a true fact that led to
Moscatiellos prior conviction in state court). Moscatiello then proceeded to discuss with
Rizzuto, in Olivieris presence, their desire for Coriasco to be made assistant business manager
of Local 14. Rizzuto convinced Moscatiello, at least for the time being, that everyone would be
better off with Rizzuto, Jr. securely in place.
In 2000, Carl Carrara, a longtime Genovese associate, replaced Olivieri as the
Genovese Familys daily contact person with Local 14. Both Carrara and Olivieri explained to
Rizzuto that Carrara now represented Rizzutos friends. Rizzuto retired from Local 14 in or
about May 2000.
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(b) Testimony of Arthur (Artie) Johansen
Artie Johansen is the son-in-law of Tommy Nastasi, Jr. (hereafter Tommy
Nastasi). For many years, Tommy Nastasi owned and ran Nastasi White Inc., a prominent New
York City drywall contractor. Johansen worked for Nastasi White and ultimately took over
running the company in approximately 1995, after Tommy Nastasi developed cancer and
eventually passed away.
Johansen knew of Tommy Nastasis relationship, and Nastasi Whites
relationship, with the Genovese Family. Tommy Nastasi was close with both Louis Moscatiello
and Vinny DiNapoli and, for years, Nastasi White made regular cash payments to the Genovese
Family. Tommy Nastasi was also one of the directors of the Wall & Ceiling Association; it was
Nastasi who was responsible for hiring and appointing Joseph Olivieri to the position of
executive director of the Association.
In approximately 1995, when Tommy Nastasi became ill and turned management
of the company over to Johansen, Nastasi told Johansen to continue making monthly payments of
$3,000 to Ralph Coppola, a Genovese Family member, and to go to Coppola for any problems
on the street. Johansen did so, and also occasionally communicated with Moscatiello directly.
Johansen also came to personally know Olivieri in the late 1990s, by serving on the board of the
Wall & Ceiling Association with Olivieri.
In or about 1998, Johansen tried to set up a meeting between Olivieri and Ralph
Coppola, at Coppolas request. Olivieri refused to meet with Coppola, telling Johansen that
Coppola had been put on the shelf. Johansen knew this to be wiseguy terminology indicating
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Ralph Coppola disappeared in September 1998 and is presumed dead. To avoid any5
potential prejudice to Olivieri, the Government will not elicit that information at trial.
14
that Coppola was out of favor with the Genovese Family leadership. Not long thereafter,5
another individual connected to the Genovese Family, Mickey Ragusa, informed Johansen that
he would be taking over collection of the payments previously made to Coppola. In 1999,
Moscatiello also threatened Johansen, demanding payment of approximately $50,0000 for a
purported debt that Moscatiello claimed was owed to Moscatiellos son. At Moscatiellos
direction, Johansen made the payments through a company called Quality Drywall.
Johansen knew that Moscatiello and Olivieri had a relationship. On at least two
occasions, in approximately 1999 or 2000, Johansen saw Moscatiello and Olivieri meet in the
coffee shop on the ground floor of the Nastasi White building, located in College Point, Queens.
Johansen was not pleased with Moscatiello and Olivieri meeting in Nastasi Whites building,
because of the organized crime implications, and believed they chose that location to meet
because it was mid-way between Olivieris office in Hicksville, Long Island, and Moscatiellos
office in Pelham Bay, Bronx.
(c) Surveillance in Vicinity of Pelham Bay Brokerage
On the afternoon of April 13, 2000, a law enforcement officers conducting
surveillance outside of Louis Moscatiellos office in Pelham Bay, Bronx, saw Moscatiello
speaking to man in a blue, Forde Explorer with New York License #T905B. The plates came
back as registered to Joseph Olivieri. Although the officers were unable to identify the man in
the Forde Explorer, given that it was Olivieris car, one could reasonably infer that this was a
conversation between Moscatiello and Olivieri.
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The agents report wrote the name phonetically as Ford. However, the Government6
believes this was probably a reference to Michael Forde. UI refers to the agents notation of
parts of the conversation that were inaudible.
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(d) Surveilled Meeting of Olivieri and Moscatiello at Bronx Restaurant
On July 24, 2000, FBI Agent Dan Conlon surveilled a meeting between Louis
Moscatiello and Olivieri inside Jimmy Ryans Bar and Restaurant, located at 3005 Middletown
Road, in the Bronx. The meeting lasted approximately 40 minutes, from 4:15 p.m. to 4:55 p.m.
During the surveillance, Conlon overheard portions of Moscatiellos statements to Olivieri,
which included the following:
Ford[e] wants somebody. Get it done as fast as possible. (UI) They had
a problem they sent for him;6
I was out on the Island today to see Carl (UI) Hes got a problem with
us;
Hes a sharp kid, if we lose him. Hes our eyes and ears. (UI) Resolve
the problem (UI) If he wants off the job (UI);
Take the beef upstairs (UI) Scared the shit out of him;
I dont want to meet with anybody. I dont want to meet with anybody. I
dont want to meet with anybody. (UI) Call the District Council (UI)
Manny (UI) Mannys gonna come right at you. Taking jobs for cash.
I met with Joey on Friday, called me on Friday (UI) hes living with hissister. The whole family is pissed with Artie
I told Mickey (UI) Mickeys being audited by the IRS. Hes fucked, he
knows hes fucked (to which Olivieri responded Hes fucked)
(e) Recording in which Genovese-Connected Individuals
Discuss Olivieris Connection to the Family
On September 28, 2004, with court authorization, the Government intercepted a
conversation between John Buster Ardito, Peter Peluso, and Michael Doris, at Agostinos
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restaurant, located at 969 Boston Post Road, in New Rochelle, New York (the Agostinos
recording). Buster Ardito was a captain of the Genovese Family. Peluso was a longtime lawyer
to the Genovese Family and a Genovese associate. Michael Doris was a low-level Genovese
associate. None of the participants to the conversation knew they were being recorded. During
the meeting, Olivieri was discussed:
Peluso: And he told me. Rudy, the kid Rudy. The kid who was around Vinny
DiNapoli, in the union. Joe Olivieri. They call him Rudy.
Doris: Oh yea, Joe Rudy.
Ardito: Friend of Louis, yeah.
The three men then proceeded to discuss, on tape, Olivieris family members and Olivieris
former employment with Sony Records (which was in fact Olivieris employment before being
made director of the Wall and Ceiling Association).
The Government intends to call FBI Agent Joy Adam, one of the case agents who
supervised the Agostinos recording and the FBIs related investigation into the Genovese
Family, to authenticate the recording, identify the voices on the recording, and identify Ardito,
Peluso and Doriss affiliations with the Genovese Family. Agent Adam will also testify that the
terminology used during this recorded conversation to describe Olivieris relationships with
Vinny DiNapoli and Louis [Moscatiello] i.e., being around DiNapoli and being a friend of
Louis is specific terminology used by wiseguys to describe a persons association with
organized crime.
B. Discussion
The above-proffered evidence is highly probative, direct evidence of Olivieris
commission of the charged perjury. Whereas Olivieri testified under oath that he had never met
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with Moscatiello, never arranged to meet Mosciatello, and never discussed any business matters
with Moscatiello, the above-proffered evidence shows that Olivieris sworn statements were
false, that Olivieri knew his statements were false, and that Olivieri intentionally lied to prevent
the Government and Judge Haight from learning of his actual connection to organized crime,
thus demonstrating the materiality of his false testimony to the Civil RICO case.
In our attempts to confer with defense counsel prior to filing this motion, defense
counsel took the position that any evidence of Olivieris association with the Genovese Family
should be precluded as prejudicial. That position is patently meritless.
As discussed above, evidence is not excludable under Rule 403 simply because it
is prejudicial. It must be unfairly prejudicial, by having some adverse effect . . . beyond
tending to prove the fact or issue that justified its admission into evidence. Gelzer, 50 F.3d at
1139; Jimenez, 789 F.2d at 171. Here, the evidence the Government seeks to introduce regarding
Olivieris organized crime association is not unfairly prejudicial, but rather the core evidence
proving the perjury, i.e., proving that Olivieri knowingly made materially false statements. For
example, Rizzutos testimony will establish not only that Olivieri in fact had a relationship with
Moscatiello, but also that Olivieri reported to Moscatiello, and that for a period of time Olivieri
acted as Moscatiellos and the Genovese Familys agent in dealing with Local 14. Indeed, when
Olivieri threatened Rizzuto with a world of hurt should Rizzuto forget his obligations to
organized crime, Olivieri made that threat on behalf of Moscatiello as indicated by the fact that
Olivieri then told Rizzuto he would have to see Olivieris boss, and brought Rizzuto to a hotel
room in which Moscatiello was waiting to discuss the Genovese Familys desire to influence a
Local 14 union appointment. While such evidence may be damaging to Olivieris case because
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Board minutes of the Wall and Ceiling Association (which the Government will also7
seek to introduce at trial) independently corroborate Johansens account that Tommy Nastasi was
responsible for Olivieris appointment to the executive director position of the Association.
18
it is compelling, direct evidence of Olivieris commission of perjury it is in not unfairly
prejudicial.
Similarly, the anticipated testimony of Artie Johansen is highly probative, direct
proof of the charged perjury. Johansen is an eye witness to at least two meetings between
Moscatiello and Olivieri in the Nastasi White building. Evidence of how Johansen knew both
Moscatiello and Olivieri, and context for why Moscatiello and Olivieri met in the Nastasi White
building, is inextricably linked with Johansens account of Nastasi White being a mob-connected
company. Johansen should be permitted to explain, among other things, that he knew
Moscatiello through his father-in-laws and Nastasi Whites longtime relationship with the
Genovese Family, as a part of which Nastasi White had been making payments to the Genovese
Family for years; that he came to know Olivieri after Tommy Nastasi had Olivieri installed as
executive director of the Wall and Ceiling Association ; and that Olivieri was connected to the7
Genovese Family and knew that Nastasi White a signatory contractor of the Carpenters Union
had a relationship with the Genovese Family too. Johansens testimony, like Rizuttos, goes to
directly to the falsity of Oliviris deposition statements, the knowing falsity of those statements,
and in their materiality to the Civil RICO case.
Moreover, Rizzutos and Johansens proffered testimony should be admitted
because it will be incumbent upon the Government at trial to elicit these witnesses own
participation in acts relating to the Genovese Family as part of the witnesses Giglio and
impeachment material. See Giglio v. United States, 405 U.S. 150 (1972); United States v.
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Bagley, 473 U.S. 667 (1985). Under governing legal precedent, the Government is permitted to
elicit the witnesses testimony about these acts to avoid the appearance that it [is] concealing
impeachment evidence from the jury. United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.
1991); United States v. Louis, 814 F.2d 852, 856 (2d Cir. 1987). Any attempt to sanitize the
Giglio material by omitting the witnesses testimony about their own participation in acts relating
to the Genovese Family will only mislead the jury.
The law enforcement surveillances provide additional direct evidence of Olivieris
meetings with Moscatiello. In particular, Agent Conlons surveillance and overhear of a July
2000 meeting between Moscatiello and Olivieri shows that these men intentionally met at a
restaurant to discuss union-related matters, with Moscatiello directing Olivieri to call the
District Council and to get something done as fast as possible for Ford[e]. Moscatiello also
talked to Olivieri about someone who was taking jobs for cash. This overheard conversation is
highly probative of the falsity of the Olivieris sworn statements denying that he ever arranged to
meet with Moscatiello and did not recall ever discussing the construction industry, or business of
any kind, with Moscatiello. Other portions of the overheard conversation indicate that
Moscatiello used the meeting to update Olivieri on Genovese Family business, including by
telling Olivieri that Carl has got a problem with us; Mickeys being audited by the IRS; I
dont want to meet with anybody; The whole family is pissed with Artie. Even overheard
snippets such as Moscatiello saying take the beef upstairs a wiseguy term for how disputes
among mobsters are resolved by bringing the dispute to individuals higher-up in the organized
crime syndicate indicate that Olivieri was a trusted associate of Moscatiello privy to affairs of
the Genovese Family, and that Olivieri lied at his deposition by denying the true nature of the
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relationship with Moscatiello.
Also admissible is the 2004 Agostinos recording in which Buster Ardito and Pete
Peluso discuss Olivieri being a friend of Louis, and around Vinny DiNapoli. This recording
is highly probative of the perjury charge because it further confirms, out of the mouths of a
Genovese member and associates, that Olivieri was an associate of the Genovese Family at that
time, and specifically an individual associated with Moscatiello and DiNapoli. The statements
are admissible as co-conspirator statements under Rule 801(d)(2)(E), which provides that an out-
of-court statement is not hearsay . . . if the [t]he statement is offered against a party and is . . . a
statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2)(E). For a statement to be admissible under this rule, the Court must find
by a preponderance of the evidence: (1) there was a conspiracy; (2) its members included the
declarant and the party against whom the statement is offered; and (3) the statement was made [i]
during the course of and [ii] in furtherance of the conspiracy. Glen v. Bartlett, 98 F.3d 721, 728
(2d Cir. 1996).
Here, the Government will be able to establish, through all of the other proffered
evidence of Olivieris association with the Genovese Family, that Ardito, Peluso, and Doris were
co-conspirators of Olivieri in an uncharged racketeering conspiracy to maintain and operate the
Genovese Organized Crime Family. See United States v. Russo, 302 F.3d 37, 47 (2d Cir. 2002)
(admitting out-of-court statements under Rule 801(d)(2)(E) where the statements apprised co-
conspirators of the Colombo Organized Crime Family of the status and relative standing of
various members and associates, because such statements were in furtherance of the conspiracy
to operate the Colombo family). In Russo, the Second Circuit recognized that an organized
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In Gigante, the Second Circuit observed that, for a statement to fit within the co-8
conspirator exception to the hearsay rules, there must be a specific criminal conspiracy beyond
the general existence of the Mafia. 166 F.3d 75, 82. The appellant in Russo seized on this
statement to argue that mere joint membership in a criminal organization, such as in one of the
five families of La Cosa Nostra, can never serve as the basis for finding the existence of a
conspiracy that is a predicate for applying the co-conspirator exception. Russo, 302 F.3d at 44.
The Second Circuit rejected this reading of Gigante. Id. at 44-47. In Russo, the Second Circuit
clarified that Gigante stands only for the narrow and unremarkable proposition that, where a
statement is offered to prove the defendants involvement in a specific crime (in Gigante, a
murder), the defendants and the declarants joint membership in the Mafia, without more, is
insufficient to justify the admission of the statement for that purpose. Id. In contrast, where, as
here, the statement is offered to show an organized crime syndicates membership, leadership,
structure, as well as its internal rivalry and dissension, the statement is admissible for that
purpose under the co-conspirator exception if the Government can establish, by a preponderance
of the evidence, that the declarant and the defendant belonged to the same criminal organization.
Id.
21
crime family cannot function properly unless its members and persons who do business with it
understand its membership, leadership, and structure. Id. at 46. Hence, statements by criminal
associates to one another about membership, hierarchy, activities of the organized crime
enterprise and the various roles of [defendants] in it are all statements made during and in
furtherance of the conspiracy, as are statements designed to reassure a co-conspirator, maintain
trust and cohesiveness among them, or inform each other of the status of the conspiracy. Id.
(quoting United States v. Persico, 832 F.2d 705, 716 (2d Cir. 1987). See also United States v.
Gigante, 166 F.3d 75, 82 (2d Cir. 1999) (noting that in organized crime cases, the relevant
conspiracy may grow quite large).8
Moreover, it does not matter to the admissibility of the Agostinos recording that
Olivieri is not charged in the instant Indictment with participating in a conspiracy involving the
Genovese Family. As the Second Circuit has stated: In Maldonado-Rivera, we held that
although Fed. R. Evid. 801(d)(2)(E) requires proof that both the declarant and the party against
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whom a declaration is offered be members of the same conspiracy, it does not require that the
conspiracy be one charged in the indictment. United States v. DeVillio, 983 F.2d 1185, 1193
(2d Cir. 1993) (citing United States v. Maldonado-Rivera, 922 F.2d 934, 962 (2d Cir. 1990)).
In addition, the proffered evidence of Olivieris association with the Genovese
Family is admissible under Federal Rule of Evidence 404(b) to rebut any claim by Olivieri that
he lacked the requisite knowledge or intent to commit perjury, and to prove his motive to lie
during his deposition in the Civil RICO case. Evidence of other bad acts is admissible under
Rules 404(b) and 403 of the Federal Rules of Evidence if it is (1) advanced for a proper purpose;
(2) relevant to the crimes for which the defendant is on trial; (3) more probative than prejudicial;
and (4) if requested, admitted subject to a limiting instruction. See United States v. Zackson, 12
F.3d 1178, 1182 (2d Cir. 1993); United States v. Ramirez, 894 F.2d 565, 568 (2d Cir. 1990)
(citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). Under the Second Circuits
inclusionary approach to the admission of other act evidence, evidence of prior crimes, wrongs
or acts is admissible for any purpose other than to show a defendants criminal propensity.
United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996). Those requirements are met here.
Evidence of Olivieris association with the Genovese Family is germane and
admissible under Rule 404(b) to show that Olivieri had a motive to lie at his deposition in the
Civil RICO case namely, a motive to hide from the Government and Judge Haight his
association with the organized crime, to protect both himself and the Genovese Family. Olivieri
of course knew that a chief goal of the Civil RICO case was to eradicate organized crime
influence from the Carpenters Union, and that the Consent Decree prohibited his association with
organized crime members or associates. Had Olivieri truthfully disclosed his association with
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the Genovese Family and Moscatiello, he would effectively have admitted his violation of the
Consent Decree, and jeopardized his longtime and influential positions as a trustee of the District
Council Benefit Funds and executive director of the Wall and Ceiling Association. Accordingly,
evidence of Olivieris organized crime association is highly probative of his motive to lie. See
Fed. R. Evid. 404(b) (other act evidence admissible as proof of motive).
Evidence of Olivieris organized crime association is also admissible under Rule
404(b) to show intent, plan, knowledge and absence of mistake. Fed. R. Evid. 404(b).
At his sworn deposition, Olivieri repeatedly answered questions about his relationship with
Moscatiello by stating that he did not recall. See Indictment 85 (Olivieri testifying I dont
recollect ever making a meeting with [Moscatiello]; answering not to my recollection in
response questions about whether he ever discussed any kind of business with Moscatiello, or
conversed with Moscatiello about the construction industry). Particularly for that reason,
the proffered evidence of Olivieris substantial (and entirely memorable) interactions with
Moscatiello relating to the business of the Genovese Family is admissible to show that Olivieris
professed lack of recollection was bogus, and part of a plan to avoid answering the questions
truthfully. A juror could easily find, for instance, that Olivieri would not have forgotten his
conduct toward Joseph Rizzuto on behalf of the Genovese Family, which involved Olivieri
threatening Rizzuto and then bringing Rizzuto to a surreptitious meeting with Moscatiello in a
hotel near LaGuardia Airport. See United States v. Sweig, 441 F.2d 114, 117 (2d Cir. 1971)
(jury can infer defendants knowledge of the falsity of his statements -- including false denials of
knowledge or recollection -- through circumstantial evidence, including evidence of the things
the defendant said and did; proof of the objective falsity of the statements; proof of the
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defendants motive to lie; and from other facts tending to show that the defendant really knew
the things he claimed not to know).
3. Evidence of Olivieri Paying for Union Officers Meals and Expenses Prior to August
2004 Should be Admitted
Finally, the Government intends to offer evidence of instances, prior to August
2004, in which Olivieri paid for meals and other expenses of union officers, and seeks an in
limine ruling permitting such testimony. As the Court is aware, Olivieri was initially charged in
Count Seventeen with making unlawful payments to labor representatives from in or about 2002
through in or about 2005, in violation of 18 U.S.C. 186(a)(1) and (d)(2), and 18 U.S.C. 2.
Specifically, Olivieri was alleged to have paid tens of thousands of dollars for the meals and
expenses of District Council officers and representatives, including but not limited to Michael
Forde and John Greaney. After Olivieri filed a motion to dismiss a portion of this charge on
statute of limitations grounds, the Government agreed to dismiss voluntarily from Count
Seventeen the payments occurring before August 3, 2004. However, the Government intends to
offer proof of Olivieris pre-August 2004 payments pursuant to Rule 404(b).
The Government intends to offer evidence of Olivieris payments in two fashions.
First, John Greaney is expected to testify that Olivieri would routinely treat him and other
union officials to meals, particularly when they were out of town at conventions or other
meetings. Second, the Government intends to offer expense reports completed by Olivieri and
submitted to the Wall and Ceiling Association for reimbursement. Because these expense reports
are voluminous, the Government intends to offer a summary chart, pursuant to Rule 1006,
summarizing the relevant portions of these expense reports, including each instance where
Olivieri indicated on the report that he should be reimbursed for costs expended entertaining
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union officials. The chart will show that Olivieris payments began in at least 2002, and
continued as a matter of course into 2005.
As indicated above, other acts evidence can be admitted for any purpose other
than to show a defendants criminal propensity, United States v. Mitchell, 328 F.3d 77, 82 (2d
Cir. 2003) (quoting United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)), subject to the
constraint that, under Rule 403, the probative value of the evidence is not substantially
outweighed by the risk of unfair prejudice. United States v. Alli-Balogun, 72 F.3d at 11. Other
acts evidence is admissible to prove, among other things, intent, knowledge, opportunity,
preparation, plan, and absence of mistake or accident. See Fed. R. Evid. 404(b).
In this case, evidence that Olivieri made it a practice of making payments to union
officials for years before August 2004, treating them to thousand dollar dinners and other
gratuities, is relevant to his criminal intent and absence of mistake in making similar prohibited
payments after August 2004. Indeed, the fact that Olivieri treated union officials through
prohibited payments as a matter of course for a period of several years supports the notion that he
had a criminal purpose in cultivating his relationship with union officials, and that the post-
August 2004 payments were not simply isolated or innocent incidents.
The years of pre-August 2004 payments are also admissible under Rule 404(b) to
show the relationship of trust Olivieri was able to develop with Michael Forde, who later assisted
Olivieri in obtaining work with James Murray. Forde and Olivieri are charged co-conspirators in
Count Three of the Indictment (the On Par conspiracy). The Second Circuit has consistently
upheld the admission of evidence of uncharged, prior bad acts under Rule 404(b) to establish and
explain the existence of a relationship between co-conspirators. See United States v. Araujo, 79
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F.3d 7, 8 (2d Cir. 1996) (holding other act evidence admissible to show the background of . . . a
relationship of trust.); United States v. Guang, 511 F.3d 110, 120-21 (2d Cir. 2007) (affirming
trial courts admission of evidence of uncharged bad acts to demonstrate the existence of a
relationship of mutual trust, or to enable the jury to understand how the illegal relationship
between the co-conspirators developed) (internal quotations omitted); United States v.
Williams, 205 F.3d 23, 33-34 (2d Cir. 2000) (same); United States v. Rosa, 11 F.3d 315, 334 (2d
Cir. 1993) (same); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (same).
In Count Three, Olivieri and Forde are charged as being co-conspirators, along
with James Murray, Finbar ONeill and others, in a conspiracy to help On Par cheat the union
benefit funds out of millions of dollars as part of a you wash my back, Ill wash yours culture
of bribes and kickbacks. There is nuance to how such corrupt relationships are formed and
nurtured over time in the construction industry. The development of Olivieris illicit relationship
with Michael Forde, which later led to Olivieris developement of a relationship with James
Murray, serves as a prime example, and is relevant to the offense charged in Count Three.
Specifically, we expect the evidence to show that, after numerous instances of Olivieri paying for
Fordes meals and expenses in 2002 and 2003, Forde used his influence to help Olivieri secure
excavation work. Finbar ONeill who was delivering cash bribes to Forde during this time
period on behalf of On Par is expected to testify that, in approximately 2003, Forde introduced
ONeill to Olivieri at an arranged lunch, at which Forde encouraged ONeill to help find
excavation work for Olivieri. (Olivieri had an excavation company called DNO Contracting).
ONeill, in turn, encouraged James Murray to offer excavation work to Olivieri on two non-
union buildings Murray was beginning to construct in Riverdale, New York. Murray is expected
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to testify that he was desirous of developing a closer relationship with Olivieri because he knew
of Olivieris influentual position within the Carpenters Union, as a benefit funds trustee and head
of the Wall and Ceiling Association. Accordingly, in 2003, Murray helped to ensure that
Olivieris company, DNO, was given the opportunity to bid on the work. DNO was in fact
awarded the excavation contracts on the two buildings, which yielded Olivieri well over $1
million in payments to DNO. Later, Murray further cultivated his relationship with Olivieri by,
among other things, loaning Olivieri $730,000.
This chain of events, which bears on Olivieris participation in the conspiracy
charged in Count Three, stemmed in part from Olivieris cultivation of his relationship with
Michael Forde which included Olivieris payment for thousands of dollars of Fordes meals
and expenses while Forde was the head of the union. This evidence shows in real-life, if
nuanced, terms, how individuals within the union and construction industry cultivated corrupt
and trusting relationships to line each of their respective pockets. Proof of Olivieris payments of
union officers meals and expenses prior to 2004 is thus relevant and admissible to add context
and dimension to the Governments proof of Count Three, and of Olivieris co-conspirator
relationships with Forde, James Murray and Finbar ONeill. See United States v. Gonzalez, 110
F.3d 936 (2d Cir. 1997) (To be relevant, evidence need only tend to prove the governments
case, and evidence that adds context and dimension to the governments proof of the charged
crime can have that tendency.); United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994) (When
the indictment contains a conspiracy charge, uncharged acts may be admissible as direct evidence
of the conspiracy itself.).
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Moreover, there is no risk of undue prejudice from the admission of this evidence.
The evidence of Olivieris pre-August 2004 payments is certainly no more inflammatory than the
evidence of his post-August 2004 payments. Nor is it any more inflammatory than other
evidence that will be presented at trial. Rather, it is part and parcel with evidence of the culture
of corruption that pervaded the Carpenters Union, and Olivieris role in it. In any case, any risk
of undue prejudice could easily be addressed by an appropriate limiting instruction, if Olivieri
should request one.
CONCLUSION
For the foregoing reasons, the Government respectfully requests that the Court
rule in limine: (1) to admit evidence of Louis Moscatiello, Sr.s membership in the Genovese
Family and convictions of crimes committed through the Genovese Family, against the
Carpenters Union and other unions; (2) to admit evidence of Olivieris association with the
Genovese Family; and (3) to admit evidence of Olivieris pre-August 2004 payment of
meal/expenses for union officials including co-defendants Michael Forde.
Dated: New York, New York
August 13, 2010
Respectfully submitted,
PREET BHARARA
United States Attorney for the
Southern District of New York,
Attorney for the United States of America
By: ___/s/__________________________
Lisa Zornberg
Mark Lanpher
Assistant United States Attorneys
(212) 637-2720/2399
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