09-1177 | Omnilex

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: May 18, 2010
Decided: July 23, 2010)

Docket Nos. 09-1177-cr, -3115-cr

UNITED STATES OF AMERICA,

Appellee,

\- V. -

STEPHEN CARACAPPA, LOUIS EPPOLITO,

Defendants-Appellants.

Before: KEARSE, SACK, and WESLEY, Circuit Judges.

Appeals from judgments of the United States District Court
for the Eastern District of New York, Jack B. Weinstein, Judge,
convicting defendants of racketeering conspiracy, see 18 U.S.C.
§ 1962 (d) , and narcotics distribution and conspiracy, see
21 U.S.C. §§ 841 (a) (1) and 846, and convicting defendant Eppolito
of money laundering, see 18 U.S.C. § 1956 (a) (3) (B) .
Affirmed.

STEPHEN E. FRANK, EVAN M. NORRIS, Assistant
United States Attorneys, Brooklyn, New York
(Benton J. Campbell, United States
Attorney for the Eastern District of New
York, David C. James, John David Buretta,
Assistant United States Attorneys,
Brooklyn, New York, on the brief), for
Appellee.

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DANIEL NOBEL, New York, New York, for Defendant -
Appellant Caracappa.

JOSEPH A. BONDY, New York, New York, for
Defendant-Appellant Eppolito.

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KEARSE, Circuit Judge :

Defendants Stephen Caracappa and Louis Eppolito appeal
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from final judgments entered in the United States District Court
for the Eastern District of New York after a jury trial before
Jack B. Weinstein, Judge, convicting both defendants of
racketeering conspiracy, in violation of the Racketeer Influenced
and Corrupt Organizations Act ( "RICO"), 18 U.S.C. § 1962 (d) , and
distribution of and conspiracy to distribute narcotics, in
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violation of 21 U.S.C. §§ 841 (a) (1) and 846, and convicting
Eppolito of money laundering, in violation of 18 U.S.C.
§ 1956 (a) (3) (B) . In finding Caracappa and Eppolito guilty of RICO
conspiracy, the jury found that they had committed numerous
predicate acts of racketeering activity, including many direct,
accessorial, or conspiratorial acts of murder, kidnaping, and
tampering with or retaliating against witnesses. Caracappa was
sentenced principally to imprisonment for life plus 80 years;
Eppolito was sentenced principally to imprisonment for life plus
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100 years. On appeal, Caracappa contends principally that he was
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deprived of a fair trial because of the admission of evidence of
an out-of-court statement by the government's key witness and
because of improper remarks by the government in summation; he

also challenges, inter alia, the sufficiency of the evidence to
support his convictions on the narcotics counts, and he contends
that the sentence imposed on him on those counts is excessive.
Eppolito contends principally that he was denied effective
assistance of counsel by reason of his attorney's failures to
communicate with him, to investigate and call favorable
witnesses, and to inform him of his right to testify at trial.
Finding no merit in defendants' contentions, we affirm the
judgments of conviction.

# I. BACKGROUND

This matter was previously before this Court in United
States v. Eppolito, 543 F.3d 25 (2d Cir. 2008) ( "Eppolito_II"),
rev'q in part 436 F.Supp.2d 532 (E.D.N. Y. 2006) ( "Eppolito I") ,
cert. denied, 129 S. Ct. 1027 (2009), in which we reversed the
district court's statute-of-limitations-based dismissal of
defendants' racketeering conspiracy convictions. The events
leading to the prosecution are recounted in detail in Eppolito II,
familiarity with which is assumed. We summarize below, in the
light most favorable to the government and in accordance with the
jury's verdicts, the evidence most pertinent to the present
appeals.

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## A. The Mafia Cops

Caracappa and Eppolito are former police detectives who
were employed by the New York City Police Department ( "NYPD")
until the early 1990s. In 1986-1993, while so employed, they were
also a partnership employed by Anthony Casso, the underboss, i.e.,
second in command, of the Lucchese Crime Family -- one of the five
Organized Crime Families in the New York City area. The
government's key witness at trial was Burton Kaplan, who was a
former associate of the Lucchese Crime Family, a close friend of
Casso, and the main intermediary between Casso and
Caracappa/Eppolito. Kaplan testified to the following events.

Caracappa/Eppolito had gained the trust of Kaplan in
early 1986 by helping to commit a murder for him. Kaplan
suspected that Israel Greenwald, a collaborator in one of Kaplan's
own criminal schemes, was about to become an informant.
Caracappa/Eppolito determined Greenwald's whereabouts, followed
him on a highway, and used flashing lights to cause him to pull
over; telling Greenwald they needed to take him to the police
station for a lineup in a hit-and-run case, they instead took him
to another location where he was shot and killed. For their
efforts, Caracappa and Eppolito were paid more than $16, 000.

In mid-1986, there was an unsuccessful attempt on the life
of Casso in NYPD's 63rd Precinct. Eppolito was assigned to that
Precinct, and Caracappa was a member of a task force whose members
included local detectives and agents of the Federal Bureau of
Investigation. Kaplan recommended Caracappa and Eppolito -- without

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disclosing their names -- to Casso as a possible source of
information on Casso's attackers. (Casso learned defendants'
names in 1992, when Eppolito published his autobiography entitled
Mafia Cop and included pictures of himself and Caracappa. ) In
response to the ensuing request, Caracappa/Eppolito gave Kaplan a
packet of police reports that included a photograph of Jimmy
Hydell, an associate of the Gambino Crime Family, and the
information that Hydell was one of the men involved in the attempt
on Casso's life. After Kaplan described the methods
Caracappa/Eppolito had used with Greenwald, Casso hired Caracappa
and Eppolito to kidnap Hydell. Caracappa and Eppolito themselves
were not to kill Hydell, however, but only to deliver him to Casso
so that Casso could extract information from him and then kill
him. The Hydell mission was successfully completed, and
Caracappa/Eppolito were paid nearly $24,000. Thereafter, at
Eppolito's request, Casso placed Caracappa/Eppolito on retainer at
the rate of $4,000 per month in exchange for their using their
law-enforcement positions to collect all the information they
could about investigations on any of the five Organized Crime
Families, including the identities of informants, the locations of
wiretaps, and any imminent arrests, and passing that information
to Kaplan for Casso. Caracappa and Eppolito were to be paid extra
for "murder contracts." One such contract -- earning
Caracappa/Eppolito $70,000 -- was for the 1990 murder of Edward
"Eddie" Lino, whom Hydell had identified in 1986 as one of the

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three Gambino Crime Family members who ordered the attempt on
Casso's life.

The retainer agreement required Caracappa and Eppolito to
work exclusively for Casso and not deal with members of other
crime families. When Caracappa/Eppolito had information about
other families, they gave it to Kaplan, who passed it on to Casso.
Casso relayed the information to those families.

When Caracappa/Eppolito informed Kaplan of persons
giving, or believed to be giving, information to law enforcement
authorities about Casso or the Lucchese Family, Casso had the
informants killed. For example, soon after Caracappa and Eppolito
were placed on retainer, Casso asked Kaplan to have them find out
whether John "Otto" Heidel, a Lucchese Crime Family associate, was
cooperating with the authorities. Caracappa/Eppolito determined
that Heidel was cooperating and they passed that information to
Casso through Kaplan. Casso had Heidel killed. Heidel had in
fact been cooperating with the authorities, secretly recording
incriminating conversations. Eppolito, while officially and
ostensibly investigating Heidel's murder, removed the
incriminating audio tapes from Heidel's apartment and gave them to
Kaplan to give to Casso.

Casso similarly suspected Lucchese Crime Family member
Anthony Dilapi, who was on parole, of having become a government
informant. Casso summoned Dilapi to a meeting, but Dilapi instead
fled New York. Casso had Kaplan ask Caracappa to determine
Dilapi's whereabouts. Caracappa, through Dilapi's parole officer,

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located Dilapi in California. Casso had him killed. On another
occasion, Eppolito informed Kaplan of an impending indictment in
which Lucchese Crime Family capo Bruno Facciola would be named as
an unindicted coconspirator rather than a defendant, leading
Eppolito to infer that Facciola was a government cooperator.
Casso had Facciola killed. Kaplan testified that Eppolito said he
liked doing business with Kaplan and Casso because when Eppolito
provided Casso with information, "people got taken care of that
deserved it
11
Eppolito II, 543 F.3d at 31 (internal
quotation marks omitted) .

In May 1990, Caracappa/Eppolito informed Kaplan that
Casso and Lucchese Crime Family boss Victor Amuso, among others,
were about to be arrested. Kaplan alerted Amuso, who alerted
Casso; by the next day, both Amuso and Casso had fled. While
Casso was a fugitive, he maintained contact with Kaplan, who
continued to relay to him sensitive law enforcement information
received from Caracappa/Eppolito and to deliver $4,000 a month
from Casso to Caracappa/Eppolito. Eppolito retired from NYPD in
early 1990, and Caracappa retired from NYPD in 1992; they remained
on retainer until Caracappa retired.

After retiring from NYPD, Eppolito moved to Las Vegas,
where he started a business writing screenplays; Caracappa, who
also eventually moved to Las Vegas, was a vice president of
Eppolito's film company. In that business, Eppolito would agree
to write a screenplay for anyone -- including members of organized
crime or drug dealers -- who gave him $75,000 in cash; and Eppolito

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would send the investor 50 percent of whatever amount was received
from the screenplay's sale. See Eppolito II, 543 F.3d at 36-39,
43-44. Eppolito told Stephen Corso, a government informant, that
many such investments were made by members of the Gambino Crime
Family. See, e.g., id. at 54.

Corso had been assisting in a lengthy government
investigation in Las Vegas that did not initially involve
Caracappa or Eppolito. In the Fall of 2004, however, members of
the Gambino Crime Family and the Bonanno Crime Family were
attempting to raise money for the actual production of a movie
written by Eppolito, and they urged Corso to meet Eppolito and to
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Corso -- as instructed by his government handlers -- at first refused
to see Eppolito, stating that Eppolito was a cop; Corso was
thereafter instructed to agree to meet with Eppolito, having been
assured by one of the Bonanno Crime Family members that "Lou was
one of us, " id. at 37 (internal quotation marks omitted) .

Eppolito told Corso that $5 million would be needed to
produce his movie, more than was available from crime family
members. See, e.g., id. at 38. Corso thereafter had numerous
meetings with Eppolito and/or Caracappa with respect to other
possibilities for funding the movie. Caracappa and Eppolito were
arrested in March 2005, after Corso had, for several months, tape-
recorded their conversations, see, e.g., id. at 37-39, including
an attempt by Caracappa and Eppolito to secure other investors by
supplying them with controlled substances, see Part II. C.2. below.

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B. The Flight, Return, Arrest, and Cooperation of Kaplan

In the meantime, in 1993, Casso was arrested. In March
1994, Judd Burstein, Kaplan's attorney, telephoned Kaplan to alert
him that Casso had probably begun to cooperate with the
government. Within hours, Kaplan left New York and went into
hiding. In that month there were articles in New York City
newspapers stating that Casso had two law-enforcement officers on
his payroll. At least one article identified the officers as
Caracappa and Eppolito. Shortly after reading these articles,
Kaplan told Burstein that he, Kaplan, had been the intermediary
between Casso and Caracappa/Eppolito.

In 1996, after learning that Casso would not be used as a
government witness after all, Kaplan returned to New York. He was
soon arrested and charged with narcotics offenses, having
conducted a flourishing drug trafficking business for many years
(in his best year, distributing more than six tons of marijuana
and earning some $2 million) . Kaplan resisted repeated government
attempts to gain his cooperation, and he proceeded to trial. He
was convicted of conspiracy to distribute marijuana and was
sentenced principally to a prison term of 27 years.

In the Fall of 2004, by then over 70 years of age and
having spent the previous nine years in jail, Kaplan decided to
cooperate with the government in the prosecution of Caracappa and
Eppolito. Principally on the basis of the testimony of Kaplan and
Corso, Caracappa and Eppolito were convicted of RICO conspiracy,

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in violation of 18 U.S.C. § 1962 (d). In connection with their
activities in Las Vegas after retiring from NYPD, Caracappa and
Eppolito were also convicted, largely on the basis of the
testimony of Corso, of distributing narcotics in violation of
21 U.S.C. § 841 (a) (1), and conspiring to do so in violation of
21 U.S.C. § 846; and Eppolito was convicted of money laundering in
violation of 18 U.S.C. § 1956 (a) (3) (B) .

## II. CARACAPPA

On this appeal, Caracappa contends principally that the
trial court erred in allowing Burstein to testify to Kaplan's 1994
statement that Kaplan had been the intermediary between Casso and
Caracappa/Eppolito; that statements by the government in summation
improperly bolstered Burstein's testimony; and that the government
in summation improperly introduced consideration of religion.
Caracappa also contends that the government's cross-examination of
one of his witnesses was improper, that the evidence was
insufficient to support his convictions on the narcotics counts,
and that his sentence on those counts is unreasonable. We find no
basis for reversal.

### A. The Admissibility of Kaplan's 1994 Statement

After Kaplan had testified and described relaying
information received from Caracappa and Eppolito to Casso and
relaying to them instructions and payments from Casso, and after

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defendants had cross-examined Kaplan at length, challenging the
veracity of that testimony, the government was allowed to call
Burstein as a witness to testify that Kaplan told him in 1994 that
Kaplan had been the conduit between Caracappa/Eppolito and Casso.
Caracappa contends principally that the Burstein testimony was
inadmissible hearsay and that, in any event, it should have been
excluded because defendants had not received advance notice of the
1994 statement by Kaplan and thus could not cross-examine Kaplan
with respect to that statement. These contentions have no merit.

The Federal Rules of Evidence specify the circumstances in
which a prior statement by a witness is to be considered
nonhearsay. Rule 801 (d) provides, in pertinent part, that "[a]
statement is not hearsay if
[t]he declarant testifies at
the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is
consistent
with the declarant's testimony and is offered to rebut an express
or implied charge against the declarant of recent fabrication or
improper influence or motive
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Fed. R. Evid. 801 (d) (1) (B)

(emphases added) . In addition to these stated preconditions,
there is "imbedded in the Rule" a temporal limitation that
"permits the introduction of a declarant's consistent out-of-
court statements to rebut a charge of recent fabrication or
improper influence or motive only when those statements were made

before the charged recent fabrication or improper influence or
motive." Tome v. United States, 513 U.S. 150, 159, 167 (1995) ;
see, e.g., United States v. Al-Moayad, 545 F.3d 139, 167 (2d Cir.

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2008\) ; United States v. Forrester, 60 F.3d 52, 64 (2d Cir. 1995) ;
United States v. Quinto, 582 F.2d 224, 232-33 (2d Cir. 1978) .

To come within Rule 801 (d) (1) (B), the prior consistent
statement need not be proffered through the testimony of the
declarant but may be proffered through any witness who has first-
hand knowledge of the statement. See, e.g., United States v.
McGrath, 558 F.2d 1102, 1107 (2d Cir. 1977), cert. denied, 434
U.S. 1064 (1978) ; 30B M. Graham, Federal Practice & Procedure
§ 7012, at 162 (Interim ed. 2006) ("Graham"). Further, where the
declarant has already testified and the prior consistent statement
is proffered through the testimony of another witness, the Rule's
"subject to cross-examination" requirement is satisfied if the
opposing party is not denied the opportunity to recall the
declarant to the stand for cross-examination concerning the
statement. See, e.g., United States v. Piva, 870 F.2d 753, 758
(1st Cir. 1989) ; Graham § 7012, at 162-63.

We review the district court's decision to admit a
statement into evidence under Rule 801 (d) (1) (B) for abuse of
discretion. See United States v. Burden, 600 F.3d 204, 229 (2d
Cir. 2010), petition for cert. filed, No. 10-5153 (U.S. June 29,
2010) ; United States v. McGrath, 558 F.2d at 1107. We see no
abuse of discretion here.

At trial, much of the cross-examination conducted by
defendants was directed toward their statute-of-limitations
defense, which asserted that after Caracappa and Eppolito retired
from NYPD and moved to Las Vegas, their RICO conspiracy with

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Kaplan ended, and that the present prosecution for their
activities in New York was untimely. But defendants also
aggressively challenged the truth of Kaplan's testimony as to the
criminal activities of Caracappa and Eppolito while they were NYPD
detectives, questioning him at length about his cooperation
agreement with the government and his anticipated gain from
testifying against Caracappa and Eppolito, and repeatedly asking
whether his testimony wasn't being given in the hope that the
government would appreciate his assistance and would move to
reduce his sentence. The district court found that defendants
"ha [d] insinuated, directly and indirectly during the opening and
during the cross-examination that [Kaplan's] motive to lie arose
from his desire to be released from prison" (Tr. 1218), and it
construed that line of questioning as a charge that Kaplan's
testimony was being given for an improper motive (see id. at
1213-16) .

Although defendants contended that the temporal aspect of
Rule 801 (d) (1) (B) was not satisfied, arguing that Kaplan had a
motive to fabricate from the moment he learned that Casso had been
arrested, the district court rejected that contention. Pointing
out that "Kaplan was not in prison in 1994 when Casso attempted to
cooperate" (id. at 1218) , the court stated that

[f]or [defendants' ] theory to hold, Kaplan must have
believed in 1994 that he [Kaplan] would eventually
cooperate with the government, hoping that his
testimony against the defendants would be called into
question and knowing that if he told Mr. Burstein of
his involvement, his account would have increased
merit.

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That sequence of events, which is farfetched on
it[]s face, is undercut by what actually happened in
1994 when Casso cooperated. Far from running to the
government to cooperate, Kaplan went on the lam for
approximately two years, returning only after he
learned that Casso could not be used as a government
witness

(id. at 1217-18) . The court ruled that the preconditions of Rule
801 (d) (1) (B) were satisfied and that Burstein would be allowed to
testify to Kaplan's 1994 statement. (See id. at 1216-17; see also
id. at 1208, 1218 (not allowing Burstein to testify to a 1996
statement Kaplan made to him after being arrested) .) In response
to defendants' complaint that, had they known of the 1994
statement in advance they could have cross-examined Kaplan on that
statement, the court stated, "You can recall him if you like. "
(Id. at 1213.)

Having reviewed the record, we see no error in the
district court's findings that defendants had expressly or
impliedly suggested that Kaplan's testimony was fabricated because
of his desire to get out of prison. Nor do we see any error in
the court's finding that Kaplan's 1994 statement to Burstein, made
while Kaplan was on the lam and some two years before he was
arrested, was made before Kaplan had a motive to fabricate.

The record also amply shows that defendants could have
cross-examined Kaplan on that statement. First, the court
expressly stated that it would allow them to recall Kaplan as a
witness. Second, the record shows that the "3500 material"
produced to defendants prior to Kaplan's cross-examination, see 18
U.S.C. § 3500; Fed. R. Crim. P. 26.2, included an investigative

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report stating that Burstein, Kaplan's attorney, told Kaplan in
March 1994 that Casso had become a government witness, and that
thereafter, "after a newspaper article appeared naming EPPOLITO
and CARACAPPA as the two hit men in the Eddie LINO homicide,
KAPLAN told his attorney, in sum and substance that he had been
the intermediary between EPPOLITO, CARACAPPA and CASSO"
(Government Exhibit 3500-BK-21 at 108-09). Thus, defendants had
in fact been informed of Kaplan's 1994 statement prior to trial
and could have cross-examined Kaplan on it before Burstein
testified.

Finally, although Caracappa also contends that the
government in summation improperly used Burstein's testimony to
bolster that of Kaplan, rather than using it solely to counter the
suggestion that Kaplan's testimony was motivated by an improper
purpose, we see no misuse by the government. Prior consistent
statements that are admissible under Rule 801 (d) (1) (B) "are
substantive evidence. The prior statement is consistent with the
testimony given on the stand, and, if the opposite party wishes to
open the door for its admission in evidence, no sound reason is
apparent why it should not be received generally." Fed. R. Evid.
801 Advisory Committee Note (1972) ; see, e.g., United States v.
Brennan, 798 F.2d 581, 587 (2d Cir. 1986) ("Statements admitted
under Rule 801 (d) are not hearsay and therefore are admissible as
substantive evidence. ") .

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B. The Challenges to the Government's Rebuttal Summation

In the government's rebuttal summation, the Assistant
United States Attorney ( "AUSA") made statements about Kaplan's
1994 statement to Burstein, to which Caracappa takes exception on
appeal. The AUSA stated, inter alia, "I submit to you that based
on the circumstances of the case and the circumstances of what Mr.
Kaplan told him, you can completely trust everything [Burstein]
said 100 percent, 100 percent" (Tr. 3227), and Burstein "told you
the truth. He is an officer of the court" (id. at 3230) .
Caracappa contends that the government thereby improperly vouched
for Burstein's veracity. In addition, the AUSA pointed out that
all major religions such as Islam, Judaism, and Catholicism have
rites of penitence; he analogized the attorney-client privilege to
the priest-penitent privilege and argued that it would make no
greater sense for Kaplan to have told Burstein, his attorney,
falsely, that he had committed a crime than it would for persons
practicing Catholicism, seeking forgiveness through the
intermediary between themselves and their God, to "admit []
something they didn't do." (Id. ) Caracappa seeks a new trial on
the ground that this constituted "vouching for Burstein's
credibility by using Burstein's testimony to bolster Kaplan's
credibility through an appeal to religious faith." (Caracappa
brief on appeal at 39 (emphasis omitted) .)

A defendant bears a substantial burden in arguing for
reversal on the basis of prosecutorial misconduct in the
summation. See, e.g., United States v. Young, 470 U.S. 1, 11-12

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(1985) ; United States v. Millar, 79 F.3d 338, 343 (2d Cir. 1996) .

In determining whether an inappropriate remark amounts to
prejudicial error, we look to "the severity of the misconduct, the
measures adopted to cure the misconduct, and the certainty of
conviction absent the misconduct. " United States v. Spinelli, 551
F.3d 159, 170 (2d Cir. 2008), cert. denied, 130 S.Ct. 230 (2009).
Flaws in the government's summation will require a new trial only
in the rare case in which improper statements -- viewed against the
entire argument to the jury -- can be said to have deprived the
defendant of a fair trial. See United States v. Forlorma, 94 F.3d
91, 93-94 (2d Cir. 1996) ; United States v. Millar, 79 F.3d at 343;
United States v. Rodriquez, 968 F.2d 130, 142 (2d Cir.), cert.
denied, 506 U.S. 847 (1992).

Further, in the absence of an objection at trial, a claim
of improper vouching is reviewable only for plain error. See,
e.q., United States v. Rodriquez, 587 F.3d 573, 583 (2d Cir.
2009) ; Fed. R. Crim. P. 52 (b) . Under the standard set by United
States v. Olano, 507 U.S. 725 (1993), for applying Rule 52 (b) ,
"before an appellate court can correct an error not raised at
trial, there must be (1) 'error, ' (2) that is 'plain, ' and (3)
that 'affect [s] substantial rights. '" Johnson v. United States,
520 U.S. 461, 466-67 (1997) (quoting Olano, 507 U.S. at 732) . "If
all three conditions are met, an appellate court may then exercise
its discretion to notice a forfeited error, but only if (4) the
error '"seriously affect [s] the fairness, integrity, or public
reputation of judicial proceedings. " '" Johnson, 520 U.S. at 467

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(quoting Olano, 507 U.S. at 732 (which was quoting United States
v. Young, 470 U.S. at 15 (other internal quotation marks
omitted) )).

In the present case, although Caracappa's counsel and
Eppolito's counsel, respectively, objected to other aspects of the
government's rebuttal summation, neither of them objected to the
statements described above or sought any cautionary instruction to
the jury, and we cannot see that any of these statements warrants
a new trial. The AUSA's statement that the jury could trust
Burstein 100 percent "based on the circumstances of the case and
based on the circumstances of what Mr. Kaplan told him" does not
constitute vouching; it is merely an argument that the evidence
indicates that Burstein's testimony was completely truthful and
accurate. Nor can we agree with Caracappa's contention that the
analogy drawn between the attorney-client privilege and the
priest-penitent privilege was in any sense an appeal to religion;
rather, it was plainly an argument that, in seeking aid from an
advisor, it makes no sense to claim guilt falsely. The statement
that Burstein should be believed because he "is an officer of the
court" may have been improper either as a suggestion that Burstein
should be viewed as something other than a witness for the
prosecution or as a suggestion that attorneys always tell the
truth; but that isolated statement, even if improper, clearly did
not affect defendants' substantial rights. Accordingly, the

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plain-error test has not been met.

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### C. Caracappa's Other Contentions

Caracappa also contends that the government's cross-
examination of one of his witnesses was improper, that the
evidence was insufficient to support his convictions on the
narcotics counts, and that his sentence on those counts is
unreasonable. These contentions do not warrant extended
discussion.

#### 1. The Witness Shanahan

Caracappa called as a defense witness his former NYPD
partner Detective Leslie Shanahan to testify to their official
duties stretching into the day Lino was shot and killed,
apparently to permit the jury to infer that Caracappa, who had
gone off duty at approximately 11:30 that morning in Manhattan,
could not have been one of the men who shot and killed Lino in
Brooklyn at approximately 7:00 that evening. On cross-
examination, the government asked Shanahan numerous questions as
to police procedures, his knowledge of Caracappa's personal life,
and various driving times and distances. Caracappa complains that
"no effort was made to confine the examination to the form
appropriate for a direct examination." (Caracappa brief on appeal
21 at 30.)

While the cross-examination of Shanahan was somewhat more
far-ranging than the direct examination, the trial "court is
'accorded broad discretion in controlling the scope and extent of
cross-examination. '" United States v. Wilkerson, 361 F.3d 717,

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734 (2d Cir.) (quoting United States v. Fabian, 312 F.3d 550, 558
(2d Cir. 2002) ), cert. denied, 543 U.S. 908 (2004). Although
" [c]ross-examination should be limited to the subject matter of
the direct examination and matters affecting the credibility of
the witness, " Fed. R. Evid. 611 (b), " [t]he court may, in the
exercise of discretion, permit inquiry into additional matters as
if on direct examination, " id. "It is, of course, unrealistic to
expect that direct examination and cross-examination will be
perfectly congruent. . . . The latter need only be reasonably
related to the former, and matching the two requires the district
court to make a series of judgment calls. " Macaulay v. Anas, 321
F.3d 45, 53 (1st Cir. 2003). Most of the questioning on cross-
examination was reasonably related to the questions put to
Shanahan on direct, and we cannot conclude that the leeway granted
by the trial court overall was an abuse of discretion.

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## 2. Sufficiency of the Evidence on the Narcotics Counts

Caracappa contends that the evidence presented at trial
was insufficient for the jury to find him guilty of distributing
and conspiring to distribute a controlled substance in violation
of 21 U.S.C. §§ 841 (a) (1) and 846. A defendant who makes such a
challenge bears a heavy burden, since he must show that "no
rational trier of fact could have found all of the elements of the
crime beyond a reasonable doubt, " United States v. Schwarz, 283
F.3d 76, 105 (2d Cir. 2002) ; see, e.g., United States v. Payne,
591 F.3d 46, 60 (2d Cir.), petition for cert. filed, No. 09-10015

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(U.S. April 1, 2010), and since, in determining whether he has
made that showing, we must view the evidence in the light most
favorable to the government, drawing all permissible inferences in
the government's favor and deferring to the jury's assessments of
the witnesses' credibility, see, e.g., United States v. Sabhnani,
599 F.3d 215, 241 (2d Cir. 2010); United States v. Parkes, 497
F.3d 220, 225 (2d Cir. 2007), cert. denied, 552 U.S. 1220 (2008).

The government's evidence on the narcotics counts was
presented principally through the testimony of Corso and was
described in Eppolito II as follows:

Corso testified that at a dinner with Eppolito
and Caracappa in mid-February 2005, he told them he
was expecting a visit from four Hollywood clients,
each of whom was interested in investing $75,000 in
Eppolito's film project, and that his clients wanted
to purchase "designer drugs'" (Tr. 1587),
specifically ecstasy and crystal methamphetamine.
Corso testified that Eppolito responded that "Tony,"
his son, could handle it; both Eppolito and Caracappa
said that Guido Bravatti, a young associate of
Caracappa's, could handle it. Later that night,
Eppolito called Corso to give him Bravatti's
telephone number.

On the following evening, Corso had dinner with
Tony and Bravatti. Corso told them that his clients
wanted an ounce of crystal methamphetamine and six to
eight ecstasy pills; Bravatti said there would be no
problem. Tony and Bravatti indicated that they
wanted to do all they could to facilitate investments
by Corso's clients in Eppolito's film project.

The next day, Tony and Bravatti made a partial
delivery at Corso's office, saying that they had had
some difficulty in obtaining what Corso requested.
They handed him an envelope containing somewhat less
than the requested ounce of crystal methamphetamine,
and Corso paid them proportionately. The parties
stipulated at trial that that envelope had contained
25.4 grams of 64-percent-pure methamphetamine.

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543 F.3d at 38-39 (emphases added). This evidence was ample to
permit the jury to find Caracappa guilty of conspiring to
distribute, and distributing, a controlled substance.

3\. The Prison Terms Imposed for the Narcotics Counts
For Caracappa's convictions of conspiring to distribute
and distributing narcotics in violation of 21 U.S.C. §§ 846 and
841 (a) (1), respectively, the district court sentenced Caracappa
to, inter alia, consecutive prison terms of 40 years on each
count, the maximum authorized by 21 U.S.C. § 841 (b) (1) (B) .
Caracappa contends that the total, 80 years' imprisonment, is
excessive and represents cruel and unusual punishment in violation
of the Eighth Amendment to the Constitution. Although these
sentences are severe, on the record in the present case we find no
basis for disturbing them.

"In the aftermath of United States v. Booker, we review
sentences for reasonableness,
'a deferential standard
limited to identifying abuse of discretion regardless of whether a
challenged sentence is inside, just outside, or significantly
outside the Guidelines range. '" United States v. Jass, 569 F.3d
47, 65 (2d Cir. 2009) (quoting United States v. Jones, 531 F.3d
163, 170 (2d Cir. 2008) (other internal quotation marks omitted) ),
cert. denied, 130 S.Ct. 2128 (2010). Further, " [t]he Eighth
Amendment forbids only extreme sentences that are grossly
disproportionate to the crime, " and in a noncapital case, it is
" 'exceedingly rare'" to uphold a claim that a sentence within the

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statutory limits is disproportionately severe. United States v.
Yousef, 327 F.3d 56, 163 (2d Cir. 2003) (quoting Rummel v.
Estelle, 445 U.S. 263, 272 (1980) (other internal quotation marks
omitted) (emphasis ours) ) ; see also United States v. Olson, 450
F.3d 655, 686 (7th Cir. 2006) ( "In non-capital felony convictions,
a particular sentence that falls within legislatively prescribed
limits will not be considered disproportionate unless the
sentencing court abused its discretion. ") ; United States v.
Organek, 65 F.3d 60, 62 (6th Cir. 1995) ("a sentence within the
statutory maximum set by statute generally does not constitute
cruel and unusual punishment" (internal quotation marks omitted) ) .

In the present case, the district court explained the
severe sentences imposed on Caracappa and Eppolito as follows :

For many years, these two defendants, while
members of the New York City Police Force, were
employed by the mafia to murder, to reveal FBI and
police files to criminals, to conduct surveillances
as directed by mafia bosses, and to undertake other
duties on behalf of mobsters. They were paid
substantial retainers, with added amounts for the
commission of specific criminal acts, including
murders, collecting large sums of money over many
years.

Sentences are now imposed pursuant to the
United States Sentencing Guidelines, relevant case
law, and applicable statutes. See 18 U.S.C.
§ 3553 (a) ; United States v. Eppolito, 543 F.3d 25 (2d
Cir. 2008) , cert. denied, 129 S.Ct. 1027 (2009) .

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The critical elements of the applicable statute
in this case are general deterrence to discourage
similar acts by others, and just punishment. See
18 U.S.C. § 3553 (a) (2) (A) - (B). On June 5, 2006, the
"nature and circumstances of the offense and the
history and characteristics of the defendant"
pursuant to 18 U.S.C. § 3553 (a) (1) were described as
follows by the court :

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It is hard to visualize any more heinous
offenses. . . . A heavy sentence is required to
promote respect for the law, to provide just
punishment for the offenses . . . and to deter
like conduct by any person who might be in the
position of these defendants. It is necessary
to deter their own criminal conduct as revealed
by the circumstances of the events as late as
2005 and 2006 [when, as the Court of Appeals has
now found, they continued to conspire to commit
crimes with criminal mobstersl.

It is necessary under the statute to protect the
public from further crimes of these defendants.
A non-incarceratory sentence would not be
appropriate.

Hr'g Tr. 40-41, June 5, 2006.

In addition to committing cruel murders and
engaging in a dangerous racketeering conspiracy in
violation of section 1962 (d) of Title 18 of the
United States Code ( "RICO"), these two defendants
have committed what amounts to treason against the
people of the City of New York and their fellow
police officers.

They are sentenced to the maximum sentence of
imprisonment and to the maximum fine for each crime
of which they have been convicted, imposed
consecutively.

Judgment dated March 6, 2009, at 1-2 (alterations in original)
(emphasis added) .

Although Caracappa contends that the district court's
explanation of its reasons for the sentence, quoted in part in the
Judgment, was inadequate to support the sentence imposed, he
voiced no such objection in the district court. Thus, his present
objection is reviewable only for plain error. See, e.g., United
States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). We see
no such error, and no prejudicial effect on Caracappa's
substantial rights.

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While Caracappa argues that the transaction reflected in
the record was a small one and that "there is no reason to believe
that Mr. Caracappa had solicited, wanted or even anticipated that
Steven [sic] Corso would propose a drug transaction as a condition
precedent for what was represented to be a legal negotiation
coming to fruition" (Caracappa brief on appeal at 54), the
evidence as to that transaction, quoted in Part II.C.2 above,
reveals that Caracappa unhesitatingly agreed to have his associate
supply drugs as requested by Corso. Further, as the district
court noted, the activities of Caracappa and Eppolito in Las Vegas
were a continuation of their business of providing illicit
services. As noted in Eppolito II,

[t]he jury was entitled to view the offers of
Eppolito and Caracappa to provide assistance to
members and associates of organized crime as general
and open-ended . . . and thus as encompassing
defendants' conduct in Las Vegas, which included
Eppolito's offers and attempts to launder the
proceeds of narcotics trafficking and other organized
crime activities, and Eppolito's and Caracappa's
involvement in narcotics trafficking in order to
induce would-be investors to give them money for a
film in whose funding members of organized crime
were integrally involved.

543 F.3d at 58. It was within the discretion of the district
court to view Caracappa's narcotics trafficking as an integral
part of his and Eppolito's criminal activity, rather than in
isolation, and to impose the maximum punishment authorized by
law.

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Eppolito, on this appeal, contends principally that he did
not receive constitutionally effective assistance of counsel. He
argues that his attorney Bruce Cutler did not communicate with him
adequately; failed to investigate, call favorable witnesses, or
introduce and marshal evidence; and failed to inform him of his
right to testify. We are unpersuaded.

A defendant claiming ineffective assistance of counsel
must meet both prongs of the standard set by Strickland v.
Washington, 466 U.S. 668 (1984), by (1) demonstrating that his
attorney's performance "fell below an objective standard of
reasonableness" in light of "prevailing professional norms, "
Strickland, 466 U.S. at 688, and (2) "affirmatively prove
prejudice" arising from counsel's allegedly deficient
representation, id. at 693; see, e.g., United States v. Cohen, 427
F.3d 164, 167 (2d Cir. 2005). "In applying this standard, a
reviewing court must 'indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be
considered sound [legal] strategy. '" United States v. Gaskin, 364
F.3d 438, 468 (2d Cir. 2004) (quoting Strickland, 466 U.S. at
689), cert. denied, 544 U.S. 990 (2005). And to demonstrate
prejudice, "the defendant must show that . . . 'there is a
reasonable probability that, but for counsel's unprofessional

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errors, the result of the proceeding below would have been
different.'" Puglisi v. United States, 586 F.3d 209, 215 (2d Cir.
2009) (quoting Strickland, 466 U.S. at 694) .

In the present case, following the jury's verdicts, both
Caracappa and Eppolito moved for a new trial based on claims,
inter alia, that their respective attorneys had failed to render
constitutionally effective assistance. The district court held a
three-day evidentiary hearing into defendants' contentions and
rejected their claims in Eppolito I, 436 F. Supp. 2d at 561-65.
That decision was not at issue in Eppolito II.

Insofar as Eppolito contended that Cutler did not
adequately communicate with him, the district court rejected that
claim without discussion, see Eppolito I, 436 F. Supp.2d at 564;
its rejection is supported by the record. Cutler testified that
he had an "open line of communication" with Eppolito (Hearing
Transcript, June 26, 2006, at 388) and spoke with him every
morning of the trial (id.). Edward Hayes, Caracappa's counsel,
testified that Cutler met with Eppolito on a regular basis during
the trial. (Id. at 446.) In addition, Bettina Schein, Cutler's
co-counsel, testified, inter alia, that Eppolito had been pleased
with Cutler's performance and made no complaints until the verdict
was returned. (Id. at 477-78.) The record thus supports the
district court's rejection of Eppolito's lack-of-communication
claim.

Eppolito's other contentions were expressly rejected by
the district court following the hearing. With respect to the

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claim of failure to investigate, to call favorable witnesses, or
to introduce and marshal evidence, the court described the
pertinent legal principles, in relevant part, as follows:

"The duty to investigate is essential to the
adversarial testing process 'because the testing
process generally will not function properly unless
defense counsel has done some investigation into the
prosecution's case and into various defense
strategies. '" Greiner v. Wells, 417 F.3d 305, 320 (2d
Cir.2005) (quoting Kimmelman v. Morrison, 477 U.S.
365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) ).
This duty requires defense counsel either "to make
reasonable investigations or to make a reasonable
decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct.
2052; see also Williams v. Taylor, 529 U.S. 362, 395-
96, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lindstadt
v. Keane, 239 F.3d 191, 200 (2d Cir.2001). It does
not, however, compel counsel to conduct a
comprehensive investigation of every possible lead or
defense, see, e.g., Strickland, 466 U.S. at 699, 104
S.Ct. 2052; Wells, 417 F.3d at 321, or "to scour the
globe on the off-chance something will turn up. "
Rompilla v. Beard, 545 U.S. 374, ---- , 125 S.Ct.
2456, 2463, 162 L.Ed.2d 360 (2005). " [R]easonably
diligent counsel may draw a line when they have good
reason to think further investigation would be a
waste." Id.

Eppolito I, 436 F.Supp.2d at 562. The court found that this
standard had not been met:

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The performance of both attorneys was far from
constitutionally ineffective. Counsel were assisted
by excellent investigators who, with the help of both
defendants and Caracappa's brother, Domenick
Caracappa, thoroughly investigated the case, studying
vast amounts of discovery material and following up
on leads. Multiple witnesses testified that
Eppolito's counsel, Bruce Cutler, personally analyzed
hundreds of hours of audio recorded by key government
witness Steven Corso. Investigator Jack Ryan -- called
by Eppolito to testify on his behalf at the hearing --
stated that Cutler was open and approachable
regarding investigative leads.

Eppolito maintains that his trial counsel was
ineffective because he refused to call witnesses that

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Eppolito thought could assist him, including Lizzie
Hydell, the sister of murder victim James Hydell; Al
Guaneri, Eppolito's brother-in-law and fellow retired
New York City police detective; and Anthony Casso,
the defendants' prevaricating co-conspirator.
Cutler's choice not to call these witnesses, however
misunderstood by his client, was not only a
reasonable strategic decision, but an eminently wise
one. As Cutler explained, the value of Guaneri's
testimony was debatable and Guaneri indicated that he
had mixed feelings about Eppolito and was reluctant
to testify. Lizzie Hydell was understandably hostile
to Eppolito, casting doubt on the value of any
testimony she might have been able to give on his
behalf. Calling Casso would have been an unmitigated
disaster; up until the final days of the trial, Casso
had done nothing but implicate the defendants, even
making eleventh-hour attempts to assist the
government .

Given the strong evidence presented by the
government, the primary strategy left to defense
counsel was, as Cutler testified, to "pulverize" the
government's witnesses on cross-examination, which
Cutler and Hayes both attempted with gusto. Cutler
repeatedly and strenuously challenged the credibility
of the witnesses, pointing out their motives to lie
and the inconsistencies and weaknesses in their
testimony. That his attempts to shake these
witnesses was ultimately unsuccessful is not an
indication of any failing on Cutler's part, but
rather resulted from the overwhelming strength of the
government's case and its witnesses.

Hayes' co-counsel, Rae Koshetz, argued the
statute of limitations issue at length and in detail.
Although Koshetz's argument was ostensibly made
solely on behalf of Caracappa, it should, for the
purposes of determining prejudice, be deemed to have
been made for both defendants, since the argument
applied equally to both. Thus, even if it was error
for Cutler not to have raised the statute of
limitations argument in his own summation, Eppolito
could not have been prejudiced by this failure on the
part of his counsel.

The court has considered the additional
allegations of error relied upon by the defendants
and concludes that none of these contentions supports
the conclusion that the defendants were denied the

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effective assistance of counsel guaranteed by the
Constitution. While there may be disagreement as to
the value of the sometimes baroque style of these two
attorneys, they were clearly skilled, dedicated to
their clients, and enormously hardworking. Monday-
morning quarterbacking is not a sport encouraged by
the laws governing ineffective assistance claims.
Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ("there
are countless ways to provide effective assistance in
any given case" and "even the best criminal defense
attorneys would not defend a particular client in the
same way") .

Eppolito I, 436 F. Supp.2d at 563-64. We see no error in this
ruling.

Finally, with respect to the contention that Cutler failed
to advise Eppolito that he had the right to testify at trial, the
district court observed that

[a] defendant's right to testify in his own
defense is personal and may not be waived by his
attorney over the defendant's opposition. Brown v.
Artuz, 124 F.3d 73 (2d Cir.1997) ; Campos v. United
States, 930 F.Supp. 787, 789 (S.D.N.Y.1996). Trial
counsel's duty of effective assistance includes the
responsibility to advise the defendant concerning the
exercise of this constitutional right. Brown, 124
F.3d at 79.

" [A]ny claim by [a] defendant that defense
counsel has not discharged this responsibility --
either by failing to inform the defendant of the
right to testify or by overriding the defendant's
desire to testify -- must satisfy the two-prong test
established in Strickland v. Washington for assessing
whether counsel has rendered constitutionally
ineffective assistance": objectively unreasonable
performance and prejudice. Id. (internal citations
omitted) .

Eppolito I, 436 F.Supp.2d at 562. The district court rejected
Eppolito's right-to-testify-based ineffective assistance claim for
failure to meet the prejudice prong:

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the June

23,

2006

evidentiary hearing,

Eppolito

testified

that

his

trial counsel, Bruce

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Cutler, had not informed him that he had a
constitutional right to testify and had repeatedly
refused his requests to take the stand, telling him
that he would never take the stand so long as Cutler
was his attorney. Eppolito also asserted that,
despite his over twenty years of work in law
enforcement, he was unaware of his right to testify.
Although both Cutler and his co-counsel, Bettina
Schein, conceded that neither of them had
specifically informed Eppolito that he had a
constitutional right to testify, both refuted
Eppolito's claim that he had repeatedly insisted that
he should testify. Cutler and Schein testified that
they had each discussed the issue of Eppolito
testifying with him once before the trial, advising
him that his testimony would do little to help and
much to hurt him, given the court's exclusion of bad
acts evidence the government wanted to introduce.
Schein also testified that her discussion with
Eppolito led her to believe that Eppolito was well
aware of his right to testify if he chose to do so
over counsel's advice.

Because Eppolito's testimony at the hearing made
it clear that he was not a credible witness -- he
admitted to being an inveterate liar, repeatedly
contradicted his own prior recorded statements and
written accounts, and gave inconsistent answers to
the same questions at different times during his
testimony -- the court does not credit his assertions
regarding his lack of knowledge of his right to
testify and Cutler's refusal to allow him to testify.

As for Cutler's failure to inform Eppolito of
his right, the law is unclear regarding whether he
was required to give Eppolito a prophylactic,
Miranda-like warning or merely to determine that
Eppolito was aware of, and could make an intelligent
decision regarding, his right to testify. Compare
Brown, 124 F.3d at 79 ("counsel must inform the
defendant that the ultimate decision whether to take
the stand belongs to the defendant") with DeLuca v.
Lord, 858 F.Supp. 1330, 1358 (S.D.N.Y.1994) ("There
is no blanket requirement that counsel must
explicitly warn all of their clients that they have
the ultimate right to decide whether or not to
testify. "). Cutler admitted that he did not, in so
many words, tell Eppolito that he had an absolute
right to testify, but both he and Schein discussed
the issue of testifying with Eppolito, and Schein
believed Eppolito knew of his right.

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Regardless of the relevant standard -- and
regardless of whether Cutler did or did not fulfill
it -- Eppolito's claim must fail. Even if Cutler was
required to explicitly inform Eppolito of his right
to testify, Eppolito did not establish that the
outcome of the trial could have been different had he
testified. Strickland, 466 U.S. at 694, 104 S.Ct.
2052 (even if counsel's performance was objectively
unreasonable, defendant must show that there is a
"reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding
would have been different"). On the contrary,
Eppolito's testimony at the hearing made it
overwhelmingly clear that his testimony at the trial
would have proven a disaster to himself and his co-
defendant.

In addition to describing himself, under oath,
as a man who would lie in order to get what he
wanted, Eppolito gave numerous examples of times when
he had lied or embellished in order to further his
career or his image. He discussed his own racism at
great length, volunteering a long list of racial
slurs that he said he often used; admitted to having
placed a sawed-off shotgun in the mouth of a man who
had insulted his mother, expressing disbelief when
the prosecutor asked him whether he knew that such an
act was illegal; and confessed to having removed
files from the police department without permission.
On cross-examination, he repeatedly volunteered more
self-damaging information than was necessary to
answer the prosecution's questions. As for his
testimony regarding the crimes with which he was
charged, it appears that, aside from a general denial
of involvement, Eppolito had little to say. Although
Eppolito claimed that he had told his counsel that he
could refute the charges against him, his testimony
at the hearing gave no indication that this was the
case. His testimony about the critical issue of his
association with Burton Kaplan -- namely, that he knew
Kaplan as a merchant of clothing -- would not have
added anything that had not been brought out on his
counsel's cross-examination of Kaplan.

Eppolito I, 436 F. Supp. 2d at 564-65 (emphasis added) .

Given the district court's superior ability to make
credibility assessments based on its first-hand observation of the
witnesses at the evidentiary hearing, we defer to those

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assessments, and we see no error in the court's factual findings.
We reject Eppolito's claim that he was denied effective assistance
because of counsel's failure to advise him of his right to testify
substantially for the reasons stated by the district court.

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# CONCLUSION

We have considered all of the contentions of Caracappa and
Eppolito on these appeals and have found them to be without merit.
The judgments of the district court are affirmed.

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August Term, 2009 Argued: May 18, 2010 Decided: July 23, 2010 Docket Nos.… v. - Stephen Caracappa, Louis Eppolito

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