United States v. Coppola

10-0065-cr
United States v. Coppola

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2010

(Argued: May 20, 2011 Decided: February 14, 2012)

Docket No. 10-0065-cr

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL COPPOLA,

Defendant-Appellant.

Before:
RAGGI, LYNCH, and WALLACE, Circuit Judges.*

On appeal from a judgment of conviction for substantive and conspiratorial

racketeering entered after trial in the United States District Court for the Eastern District

of New York (Gleeson, Judge), defendant Michael Coppola challenges (1) the legal

validity of the extortion and wire fraud subpredicates comprising Racketeering Act One,

particularly after Skilling v. United States, 130 S. Ct. 2896 (2010); (2) the sufficiency of

*
Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth Circuit,
sitting by designation.
the evidence to prove any of the Racketeering Act One subpredicates; (3) the sufficiency

of the evidence to prove the pattern element of racketeering; (4) various evidentiary

rulings; (5) the jury charge; and (6) the reasonableness of his sixteen-year prison

sentence.

AFFIRMED.

ROBERT A. CULP, Esq., Garrison, New York, for Defendant-
Appellant.

AMY BUSA (Peter A. Norling, on the brief), Assistant United States
Attorneys, for Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn, New York, for Appellee.

REENA RAGGI, Circuit Judge:

Defendant Michael Coppola was found guilty after a jury trial in the United States

District Court for the Eastern District of New York (John Gleeson, Judge) of conducting

and conspiring to conduct the affairs of the Genovese organized crime family through a

pattern of racketeering activity evidenced by the use of extortion and fraud to control the

New York–New Jersey waterfront generally and International Longshoreman’s

Association (“ILA”) Local 1235 in particular, and by the possession of false identification

documents. See 18 U.S.C. § 1962(c), (d). On this appeal from the December 31, 2009

amended judgment of conviction sentencing him to concurrent terms of sixteen years’

2
incarceration, Coppola challenges (1) the legal validity of the extortion and wire fraud

subpredicates charged as Racketeering Act One, particularly after Skilling v. United

States, 130 S. Ct. 2896 (2010); (2) the sufficiency of the evidence to prove any of these

subpredicates; (3) the sufficiency of the evidence to prove the pattern element of

racketeering; (4) various evidentiary rulings; (5) the jury charge; and (6) the

reasonableness of his sentence. For the reasons stated herein, we reject these arguments

and affirm the judgment.

I. Background

A. The Crimes of Conviction

Coppola was convicted on a two-count superseding indictment charging him with

substantive and conspiratorial racketeering in connection with his activities over three

decades as an associate, soldier, and ultimately captain of the Genovese organized crime

family, one of the five arms of La Cosa Nostra in the New York metropolitan area.1 The

pattern of racketeering through which Coppola was alleged to have conducted and

participated in the affairs of the Genovese family was charged in three predicate acts.

Racketeering Act One alleged conspiracy to extort, extortion, and wire fraud in

connection with the Genovese family’s control of ILA Local 1235. See 18 U.S.C.

§§ 1343, 1346, 1951(a), (b)(2). As to the extortion subpredicates, the indictment charged
1
In New York, La Cosa Nostra has traditionally operated through five organized
crime families: Bonanno, Colombo, Gambino, Genovese, and Lucchese. See United States
v. Eppolito, 543 F.3d 25, 28 (2d Cir. 2008); accord United States v. Basciano, 599 F.3d 184,
188 n.1 (2d Cir. 2010).
3
that between January 1974 and March 2007, Coppola and others obtained or conspired to

obtain the property of Local 1235 members both in the tangible form of “Local 1235

labor union positions, money paid as wages and employee benefits and other economic

benefits that such Local 1235 union members would have obtained but for the defendant

and his co-conspirators’ corrupt influence over such union,” and in the intangible form of

“the right of Local 1235 members to have the officers, agents, delegates, employees and

other representatives of their labor organization manage the money, property and

financial affairs of the organization in accordance with Title 29, United States Code,

Section 501(a).” Indictment ¶¶ 16, 19.2 The property was allegedly obtained with the

consent of union officials “induced by wrongful use of actual and threatened force,

violence or fear.” Id.

As to the wire fraud subpredicate of Racketeering Act One, the indictment charged

that between January 1974 and March 2007, Coppola and others devised a scheme to

defraud Local 1235 union members of (1) the same tangible property charged in the

extortion subpredicates, and (2) intangible property in the form of “the right of the honest

services of the Local 1235 Presidents.” Id. ¶ 20. The particular use of wires charged to

execute the scheme was an interstate telephone conversation between Coppola and an

unindicted confederate, Edward Aulisi, on March 6, 2007.
2
Although the indictment also charged extortion of “the right of Local 1235 union
members to free speech and democratic participation in the affairs of their labor
organization,” Indictment ¶¶ 16, 19, that theory was not submitted to the jury, and we discuss
it no further.
4
 Racketeering Act Two charged Coppola with the April 10, 1977 attempted and

actual murder of Giovanni Larducci, also known as “John Lardiere” and referred to as

such in the record. See N.J. Stat. Ann. §§ 2A:113-1, 2A:113-2 (1977).

Racketeering Act Three alleged that between August 1996 and March 2007,

Coppola conspired to possess with intent to use various false identification documents.

See 18 U.S.C. § 1028(a)(3), (f).

Because the jury found only the first and third predicates proved, our factual

discussion focuses on these matters, with the evidence viewed in the light most favorable

to the verdict. See, e.g., United States v. Jass, 569 F.3d 47, 50 (2d Cir. 2009).

B. Trial Evidence

The government adduced extensive evidence of the Genovese family’s criminal

control over the Manhattan and New Jersey waterfronts generally and over Local 1235 in

particular. Genovese family member George Barone, Genovese associate Michael

D’Urso, Gambino family member Primo Cassarino, and Lucchese family member

Thomas Ricciardi testified that mob control over the metropolitan area waterfront dated

from the 1950s, with an understanding between the Genovese and Gambino families that

the former enterprise would dominate unions and businesses operating on the Manhattan

and New Jersey docks, while the latter enterprise dominated unions and businesses

operating in Brooklyn and Staten Island. Asked how such control was exercised, Barone

replied, “intimidation, fear, whatever.” Trial Tr. at 1114. While much of Barone’s

5
testimony focused on mob dominance of Manhattan-based ILA Local 1804-1, which was

eventually exercised by Coppola and his one-time Genovese captain, Tino Fiumara, the

totality of the evidence demonstrated that intimidation and fear was the common scheme

or plan used by the Genovese family to secure and maintain waterfront control. In a

recorded conversation, Local 1804-1 vice-president Thomas Buzzanca stated that

“everybody fears and respects [Fiumara],” and “we all live under[] fear.” Gov’t Ex. TR-

CD-5b at 1–2, 5 (emphasis added).

Evidence showed that the Genovese family used its control of unions to dictate

what businesses worked on the waterfront. D’Urso explained that if an “ordinary guy

wanted to go into the trucking business on the docks, or wanted to open up something on

the docks” the Genovese family would “sic the union on the them.” Trial Tr. at 877. In

short, because the Genovese family “ran the union[s],” it “could bring [a legitimate]

business to a screeching halt.” Id.; see also Gov’t Ex. TR-CD-3 (T1).

Robert Delaney, a New Jersey State police officer who had participated in an

undercover investigation of organized crime on the New Jersey waterfront in the 1970s,

corroborated this account with particular reference to Coppola. Delaney testified that

while he was posing as the owner of a trucking company, Coppola had represented that he

and Fiumara, through “contacts,” could provide “labor peace on the waterfront where

[Delaney’s] trucks were picking up containers.” Trial Tr. at 148. Such peace, however,

came at a price in the form of “tribute” payments that the Genovese family demanded

6
from both waterfront businesses and unions, payments that Barone testified generated

“millions” of dollars in income for the enterprise. Id. at 1103. Officer Delaney testified

that Coppola and Fiumara had required him to pay a percentage of his trucking profits to

them in return for getting business on the waterfront and operating without labor

disturbances: “We made percentage and cut payments based on the earnings that the

company made . . . . to Mr. Fiumara’s group.” Id. at 143. D’Urso, who acknowledged

collecting tribute payments for the Genovese family, explained that monies extorted from

businesses were sometimes channeled to the enterprise through the unions: “[V]endors

who have businesses on the docks” would pay “handouts[,] . . . contributions,

shakedowns, whatever. . . . They want to get something done they pay off maybe one of

the [union] presidents or somebody close to him, find a way to get this stuff down and

expedite it quickly.” Id. at 884. Barone confirmed the practice, testifying that Burt

Guido, whose business operated on the waterfront, made regular tribute payments to

Local 1804-1 officials, who would pass the payments on to Barone.

In addition to monthly tribute payments, the Genovese family demanded

“Christmases,” special year-end payments from waterfront businesses and unions.

D’Urso stated, “during Christmas, people show their appreciation . . . . [L]egitimate

businesses that you help, they usually put together a Christmas package for you . . . . It’s a

tribute payment.” Id. at 882. The practice was evidenced, inter alia, by a December 12,

1978 recorded conversation between Local 1804-1 vice president Buzzanca and William

7
Montella, the owner of a waterfront business called Quinn Marine, in which Montella told

Buzzanca that he had a $2,000 tribute payment and a $5,000 “Christmas” payment for

Fiumara. Also, a March 14, 2001 videotape of a meeting between Genovese confederates

D’Urso and Cafaro shows the two men discussing Barone’s demand for a

$90,000–$100,000 “Christmas” payment from Andrew Gigante, another waterfront

business owner.

With respect to the Genovese family’s extortion of labor unions under their

control, a recorded September 14, 1998 conversation shows enterprise confederate

Stephen DePiro telling Fiumara, “Christmas time I want double. . . . I don’t want [union

official] Brief saying, like no 2%, this, this is the way it’s going to be. . . . [H]e’s got all

his guys that he works there. Bring us double and that’s that.” Gov’t Ex. TR-CD-6b at

17.3 Further, Officer Delaney testified that Genovese family member Larry Ricci told

him that he collected regular $15 payments from waterfront union members for the

enterprise under the guise of a dental plan. When one union member indicated an

expectation that his dental bills would therefore be covered, Ricci employed classic

extortion techniques to set the member straight: he “hit the guy in the chest” and told him

“the dental plan is there to keep your own f---ing teeth.” Id. at 152. Lucchese member

3
Based on other recorded conversations in which Fiumara stated that he wanted
“Brief” to obtain a “C-card” for someone—a type of seniority card held by ILA union
members—the jury reasonably could have concluded that Brief was a union official and that
DePiro’s demand for a larger “Christmas” from Brief and “all his guys that he works there,”
referred to a demand for tribute money from union members.
8
Ricciardi testified that his brother-in-law, William Bell, a New Jersey longshoreman, was

required to pay $500 to the Genovese family in order to be called for work on the docks.

With particular reference to Local 1235, the evidence showed Genovese family

control of that union for more than thirty years through three successive local presidents:

Vincent Colucci, also known as “Cong” (1975–80); Albert Cernadas, also known as

“Bull” (1981–2006); and Vincent Aulisi, also known as “Vet” or “Pop” (2006–09).

Barone testified that Colucci was the first to “gang[] up his association with us, the

Mafia.” Trial Tr. at 1144. Thereafter, Barone himself put Cernadas “‘on record’ with the

Genovese family,” id. at 1145, whereupon Cernadas “[a]lways, always” went along with

Genovese demands, id. at 1270. Barone stated that he advised Cernadas “to be associated

with Tino [Fiumara] and Michael [Coppola]” because “there was the power in that area of

the Mafia.” Id. at 1145. That Cernadas paid tribute over the years to these members of

the Genovese family is evidenced by a recorded March 6, 2007 conversation between

Coppola and Edward Aulisi, whose father Vincent Aulisi had succeeded Cernadas as

Local 1235 president the previous year. At the time of this conversation, Coppola was

subject to a 1991 court order prohibiting him from having any dealings “whatsoever”

with any officer, member, or employee of the ILA or a related labor organization such as

Local 1235. See Default Judgment, United States v. Local 1804-1, Int’l Longshoremen’s

Ass’n, AFL-CIO, 90-cv-963 (S.D.N.Y. Sept. 5, 1991). Nevertheless, Coppola received

the younger Aulisi’s assurances, on behalf of his father, that Local 1235 would continue

9
to pay monthly tribute and “Christmases” to the Genovese family despite seemingly

contrary statements by Cernadas as he was leaving office:

Aulisi: Ohh, and the Vet [i.e., Vincent Aulisi] told me to pass it on.
Umm. What the hell did he say to me? Ohh, that, ah, he was
glad that, ah, the other, the Cuban, that Ricky Ricardo, was
there when this guy [i.e., Cernadas] made mention hey, once
I’m outta, once I’m gone from here, this thing stops. So
Mike, [laughs] the Vet said, this thing stops? The beat goes
on, whether you’re here or not. But, Ricky Ricardo was there
when he said, he said it.

Coppola: Who, who?

Aulisi: He said I, want you to relay that.

Coppola: Which guy? Who said that?

Aulisi: The Bull [i.e., Cernadas]. You know when this is gone, when
I’m gone, he says this thing is gonna end. Meaning, meaning
ahh, the month, you know, the the Christmases, and
everything else, he [i.e., Vincent Aulisi] says what you talking
about?

Coppola: Yeah, yeah.

Aulisi: This gonna, things gonna go on.

Gov’t Ex. TR-CD-7 (T6) at 6. Then, still with reference to tribute payments, the younger

Aulisi stated that his father wanted him to tell Coppola that “this thing almost, almost

doubled.” Id.

Another recorded conversation between Edward Aulisi and Coppola the same day

showed Coppola asking about the amounts collected and Aulisi acknowledging Coppola’s

10
control over their disposition. Aulisi reported receiving “another chunk,” and stated that

he knew Coppola was “directing that to the other half.” Gov’t Ex. TR-CD-7 (T7) at 1. In

response to Coppola’s query as to “how many months” of payment Aulisi had obtained,

Aulisi replied “we’re gonna have three.” Id. at 2. He stated that one person had given

him “sixty something and then he just gave me . . . twenty-eight hundred,” but “there ain’t

gonna be nothing [more] there.” Id. Coppola stated that he was “not worried about that

because I told him to take whatever he had to take for the other, ah, for the other situation.

So I knew it was gonna be down to nothin’.” Id. at 3.

Evidence also showed that the Genovese family exploited its control over

waterfront unions to make union employment decisions. Barone testified that the

Genovese family “sen[t] word” to ILA president John Bowers to put Harold Daggett into

a senior position with the union. Trial Tr. at 1119. The Genovese family then “told

[Daggett] what we wanted him to do. . . . If he didn’t do it, we take him out.” Id. at 1117.

Barone testified that he personally secured union employment for numerous Genovese

associates, including positions at an ILA health care clinic for Coppola’s brother and

Cernadas’ wife. Officer Delaney testified that Genovese member Ricci told him that he

held a union job that paid him “$45,000 a year . . . and all he had to do was put his feet on

the desk, the only time he worked [was] if the other guy [i.e., Fiumara] called him for

something.” Trial Tr. at 150.

11
 In the first of their March 6, 2007 conversations, Coppola and Edward Aulisi

discussed past and future placement of friends and family in Local 1235 positions, with

Coppola making clear his ability to exercise a final say. Referencing a time when Colucci

“wanted to leave his wife” in a union position, Coppola stated, “we were right next to him

all the time during this whole thing,” and “[w]e said under no circumstances.” Gov’t Ex.

TR-CD-7 (T6) at 7–8. As to another placement of someone’s daughter, Coppola told

Aulisi, “I sent . . . word back, under no circumstance.” Id. at 8. And as to a placement

then under consideration, Coppola instructed the younger Aulisi to tell his father, “[i]t’s,

it’s, not gonna happen to, you relay that to, to, Pop that’s all.” Id. at 9. Moments after

concluding this call, Coppola again spoke with Edward Aulisi, reiterating, “you let him be

aware of that, that’s not gonna happen.” Gov’t Ex. TR-CR-7 (T7) at 1.

Evidence showed that Coppola’s racketeering activities persisted through March

2007, not only despite the 1991 court order, but also despite his status as a fugitive from

an August 8, 1996 subpoena ordering him to provide a DNA sample to New Jersey

authorities investigating the Lardiere murder. Coppola was able to avoid apprehension

and continue overseeing enterprise activities because organized crime confederates

provided him with both money and false identification documents. D’Urso testified that

while Coppola was “on the lam, on the run,” Trial Tr. at 860, the Genovese family had

money delivered to him by Thomas Cafaro and Chuck Tuzzo. Meanwhile, in recorded

February 2007 conversations, Coppola’s son-in-law Louis Rizzo reported that he had

12
secured “the BC [i.e., birth certificate] and the SS [i.e., Social Security card]” for

Coppola, Gov’t Ex. TR-CD-7 (T1) at 1, as well as a credit card, but needed more time to

obtain a fraudulent driver’s license. A month later, at the time of Coppola’s March 9,

2007 arrest, he was in possession of a New York identification card, a Blue Cross

insurance card, as well as various credit and debit cards in the name “José Quinones.”

Meanwhile, a search of Coppola’s New York apartment yielded credit cards and

identification documents bearing the names Michael Rizzoli, Joseph Rizzoli, Joseph

Carro, Hector Carro, and Olga Quinones, and thousands of dollars in cash.4 A search of

Coppola’s San Francisco apartment yielded bank records in the names Joe Quinones and

José Quinones and thousands of dollars in cash.

C. Verdict and Sentence

In finding Coppola guilty of both racketeering and racketeering conspiracy, the

jury indicated with specific reference to Racketeering Act One that it found extortion,

extortion conspiracy, and wire fraud proved. The jury further indicated that it found the

wire fraud subpredicate proved under both theories charged, i.e., a scheme to defraud

Local 1235 members of tangible property and a scheme to defraud Local 1235 members

of the honest services of their union’s presidents. The district court rejected pre- and

post-verdict challenges to Racketeering Act One, as well as to the sufficiency of the

evidence to prove the pattern element of racketeering.
4
Because Coppola’s wife joined him after he became a fugitive, she too was in need
of fraudulent identification to avoid providing leads to her husband’s whereabouts.
13
 In calculating Coppola’s Guidelines range at sentencing, the district court

determined that the total offense level for the extortion subpredicates was 29, while the

total offense level for the wire fraud subpredicate was 30,5 grouping the offenses to yield

a total offense level of 30.6 The district court declined to apply an obstruction of justice

enhancement, see U.S.S.G. § 3C1.1, to its calculation of either the extortion or fraud

offense levels, invoking United States v. Agudelo, 414 F.3d 345, 350 (2d Cir. 2005)

(cautioning against assumption that defendant who submits affidavit to justify

suppression hearing is automatically subject to obstruction enhancement if suppression

5
The curious result of fraud having a higher total offense level than extortion arises
from the following Guidelines calculation. With respect to the extortion crimes, the
Guidelines provided for a base offense level of eighteen, see U.S.S.G. § 2B3.2(a); a two-level
enhancement for the implied threat of bodily injury, see id. § 2B3.2(b)(1); a six-level
enhancement for a total loss of more than $2.5 million, see id. § 2B3.2(b)(2) (cross-
referencing § 2B3.1(b)(7)(G)); and a three-level enhancement for role in the offense, see id.
§ 3B1.1(b). With respect to the fraud crimes, the Guidelines provided for a base offense
level of seven, see id. § 2B1.1(a)(1); an eighteen-level enhancement for a total loss of more
than $2.5 million, see id. § 2B1.1(b)(1)(J); and a three-level enhancement for role in the
offense, see id. § 3B1.1(b). What afforded fraud a higher Guidelines range than extortion
in this case was a further two-level enhancement for commission of the crime in violation
of a court order. See id. § 2B1.1(b)(8)(C) (renumbered in 2011 to § 2B1.1(b)(9)(C)). While
the record suggests that the district court reasonably thought that this fact should also raise
Coppola’s extortion offense level, see Sentencing Tr. at 13, the extortion Guideline contains
no parallel provision to § 2B1.1(b)(8)(C), and the total offense level of 29 employed for
extortion does not reflect any court-order-violation enhancement. We have no occasion here
to discuss whether the factor might support a Guidelines departure or the imposition of a
non-Guidelines sentence, as the district court did not so support the challenged sentence.
6
In grouping the offenses pursuant to U.S.S.G. § 3D1.2, the district court persuaded
the government to abandon its argument that grouping analysis did not apply to extortion
offenses, previewing its intent to impose a non-Guidelines sentence in stating, “[n]othing
hinges on this particular ruling.” Sentencing Tr. at 15.
14
motion is denied). It also declined to apply the higher offense level of 43 that would

derive from treating the Lardiere murder as relevant conduct, explaining that, while there

was probable cause to think Coppola had committed the murder, it did not find the crime

proved by a preponderance of the evidence.7 Cf. United States v. Vaughn, 430 F.3d 518,

526 (2d Cir. 2005) (Sotomayor, J.) (recognizing that court may use acquitted conduct to

calculate Guidelines range when found by preponderance of evidence).

In explaining its application of a loss amount of at least $2.5 million to calculate

the extortion and fraud offense levels, the district court specifically declined to aggregate

the salaries paid to Local 1235 presidents from 1975 to 2007, as urged by the prosecution

and recommended by the Probation Department. See Sentencing Tr. at 7–8 (rejecting

salary aggregation as “very clumsy way to estimate loss” in Coppola’s case). Instead, it

assessed loss by reference to the revenues realized by the Genovese family as a result of

its corrupt control of Local 1235. See id. at 8 (observing that for the 33 years at issue in

the case “[t]his union local and the members it was supposed to represent was a cash

generating machine for the Genovese family”). Without attempting to calculate these

revenues precisely, the district court noted that they allowed the defendant “to maintain

an apartment in San Francisco and an apartment in New York’s West Side for the 11

7
The district court stated, “[i]t is hard to fathom why [Coppola] would choose to
become a fugitive back in 1996 or so, when he fled, unless he thought the DNA evidence
would implicate him [in the Lardiere murder] . . . . It is hard to fathom why he would think
his own DNA would implicate him unless he was there, but I don’t think that’s enough to
prove the murder by a preponderance of the evidence.” Sentencing Tr. at 5–6.
15
years he was a fugitive.” Id. at 9.8 Further, Coppola “was hardly the only person the

evidence showed that benefitted from the cash cow that Local 1235 was to the Genovese

family.” Id. Thus, the court concluded that it did not even need to consider Coppola’s

involvement in the broader conspiracy, which extorted still other waterfront unions and

businesses. “It is sufficient for me to say that even focusing only on Local 1235, the 2.5

million amount is, to put it mildly, an extremely conservative estimate.” Id.

Relying on a total offense level of 30 and a criminal history category of IV, the

district court determined that Coppola’s advisory Guidelines range provided for a 135-to-

168-month term of incarceration. The district court nevertheless invoked its discretion to

impose a more severe non-Guidelines sentence, explaining that the racketeering

Guidelines failed to “capture the significance of the crime,” particularly Coppola’s

racketeering crime, which “was committed by the defendant as a member of the Genovese

family, an organized crime family.” Id. at 31–32. The district court specifically faulted

the racketeering Guidelines for not doing “anything but funnel[ing]” a sentencing court

into the Guidelines applicable to the predicates, which could be committed in “any number

of ways, . . . some of which have nothing to do with sustained criminal activity.” Id. at 32.

The district court emphasized that Coppola’s racketeering crime spanned “more than 30

years” and that “criminal conduct was Mr. Coppola’s livelihood. It is what he did.” Id.

Further, Coppola chose to pursue his “lifetime occupation” of crime “as part of an
8
At the time of his arrest, Coppola and his wife were living in an eleventh floor
apartment of a sixteen-story pre-war building located at 74th Street and Amsterdam Avenue.
16
organization that gave him enormous additional power . . . derive[d] from a well grounded

fear that if you cross a member of that organization you will be killed.” Id. at 32–33. This

was why the Genovese family in general, and “Mr. Fiumara, this defendant, the others

associated with him” in particular, “were so successful.” Id. at 33.

Finding the Guidelines “woefully insufficient . . . to capture the essence” of the

racketeering crimes of conviction, id. at 34, the district court sentenced Coppola to

concurrent prison terms of 192 months, i.e., sixteen years, to run consecutive to an

undischarged 42-month prison term imposed on a related conspiracy charge of harboring a

fugitive (himself), see 18 U.S.C. §§ 371, 1071, to which Coppola had earlier pleaded

guilty, see Judgment, United States v. Coppola, 07-cr-225 (DLI) (E.D.N.Y. May 14,

2008), ECF No. 77.

This timely appeal followed.

II. Discussion

A. Racketeering Act One

Coppola contends that his conviction must be reversed because the alleged

subpredicate acts comprising Racketeering Act One (1) fail to state extortion or mail fraud

offenses, particularly after Skilling v. United States, 130 S. Ct. 2896; and (2) were not

proved by sufficient evidence.

We review Coppola’s first challenge de novo. See, e.g., United States v. Gotti, 459

F.3d 296, 320 (2d Cir. 2006). Because the jury returned findings of guilt on each of the

17
identified subpredicate acts, we will uphold the jury’s finding that Racketeering Act One

was proved if any one of the identified subpredicate acts—extortion conspiracy, extortion,

or wire fraud (whether to obtain tangible property or intangible property in the form of

honest services)—states an offense. See United States v. Ruggiero, 726 F.2d 913, 922–23

(2d Cir. 1984), abrogated on other grounds by Salinas v. United States, 522 U.S. 52, 61–62

(1997); see also id. at 925–28 (Newman, J., concurring in part and dissenting in part).9

Where, however, the jury returned a general verdict as to any subpredicate act charged

under multiple theories, we can uphold the jury’s finding as to that subpredicate act only if

every charged theory states an offense, see Yates v. United States, 354 U.S. 298, 312

(1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 8–10 (1978);

United States v. Salmonese, 352 F.3d 608, 624 (2d Cir. 2003), unless the pleading error

was harmless, see Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008); accord Skilling v. United

States, 130 S. Ct. at 2934 n.46 (extending Hedgpeth harmlessness principle beyond habeas

review).

As to Coppola’s sufficiency challenge, we will uphold the jury’s finding as to

Racketeering Act One if the evidence was sufficient to prove any one of the subpredicate

acts on any legally valid theory charged. See, e.g., Griffin v. United States, 502 U.S. 46,

56–57 (1991); United States v. Salmonese, 352 F.3d at 624. While we make this

9
In fact, the government does not defend the honest services theory of the wire fraud
subpredicate, which was not charged to require proof of the bribe-kickback element
identified in Skilling, 130 S. Ct. at 2907.
18
determination de novo, we view the evidence in the light most favorable to the verdict, and

we will reverse only if we conclude that no reasonable jury could have found guilt beyond

a reasonable doubt. See, e.g., United States v. Heras, 609 F.3d 101, 105–06 (2d Cir.

2010).

Applying these principles to this case, our analysis can begin and end with the

extortion subpredicates, which state a viable offense and are supported by sufficient

evidence.

1. Validity of Extortion Subpredicates

To charge extortion under the Hobbs Act, an indictment must allege that a

defendant obtained (or in the case of conspiracy, schemed with others to obtain) property

from another with his consent induced by the wrongful use of actual or threatened force,

violence, or fear, or under color of official right. See 18 U.S.C. § 1951(a), (b)(2).10 In this

case, the indictment charged Coppola with obtaining and conspiring to obtain both

intangible and tangible property from Local 1235 union members, with the consent of

union officials induced by the wrongful use of threats and fear.

a. The Intangible Property Theory

The government’s intangible property theory was based on a provision of the

Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”), Pub. L. No. 86-

257, 73 Stat. 519, stating that the officials of a labor organization “occupy positions of
10
Because “color of official right” was not at issue in this case, we do not reference
that means of extortion further.
19
trust in relation to such organization and its members as a group.” 29 U.S.C. § 501(a).

That provision specifies particular duties owed by officials to the union and membership

they serve:

It is, therefore, the duty of each such person, taking into account the special
problems and functions of a labor organization, to hold its money and
property solely for the benefit of the organization and its members and to
manage, invest, and expend the same in accordance with its constitution and
bylaws and any resolutions of the governing bodies adopted thereunder, to
refrain from dealing with such organization as an adverse party or in behalf
of an adverse party in any matter connected with his duties and from holding
or acquiring any pecuniary or personal interest which conflicts with the
interests of such organization, and to account to the organization for any
profit received by him in whatever capacity in connection with transactions
conducted by him or under his direction on behalf of the organization.

Id. Explaining this provision to the jury in this case, the district court charged that “union

members have a right to the loyal service of union officials; and this right constitutes a

form of property.” Trial Tr. at 1816.

This instruction conforms to our precedent, which recognizes that the concept of

property under the Hobbs Act reaches beyond tangible property to include union

members’ “LMRDA rights to loyal representation by their officers, agents, and other

representatives.” United States v. Gotti, 459 F.3d at 325; see also United States v.

Tropiano, 418 F.2d 1069, 1075–76 (2d Cir. 1969) (holding that “concept of property under

the Hobbs Act . . . is not limited to physical or tangible property or things, but includes . . .

any valuable right considered as a source or element of wealth” (citations omitted)).

20
Coppola does not contend that the district court misconstrued Gotti. Rather, he asserts that

we must revisit Gotti’s holding in light of the Supreme Court’s recent decision in Skilling

v. United States, 130 S. Ct. 2896.

Skilling was not a Hobbs Act case. It considered a conviction under the “honest

services” provision of the wire fraud statute. See 18 U.S.C. § 1346 (defining term

“‘scheme or artifice to defraud’” to include “scheme or artifice to deprive another of the

intangible right of honest services”). To avoid “due process concerns underlying the

vagueness doctrine” in the undefined phrase “right of honest services,” Skilling v. United

States, 130 S. Ct. at 2931; see id. at 2935 (Scalia, J., concurring in part and concurring in

judgment), the Supreme Court construed the statutory provision as limited to “fraudulent

schemes to deprive another of honest services through bribes or kickbacks supplied by a

third party who had not been deceived,” id. at 2928 (identifying bribe and kickback

schemes as “core” of honest services fraud recognized by appellate courts before McNally

v. United States, 483 U.S. 350 (1987)). Coppola argues that there is little difference

between the LMRDA rights alleged in this case and the right to honest services at issue in

Skilling. He maintains that both are too vague to state a criminal charge consistent with

due process. See Appellant Br. at 67 (stating “it makes no sense to posit that the same

‘honest services’ that are too vague to be defrauded nonetheless can be extorted”). We

disagree.

21
 First, to the extent Coppola asserts that Skilling identifies vagueness concerns with

intangible rights generally, he is mistaken. Skilling addressed a particular intangible

right—to honest services—identified, but not defined, by § 1346. It did not identify

vagueness concerns with all intangible rights. To the contrary, Skilling held that even the

intangible right of honest services can constitutionally be the basis of a wire fraud

prosecution when that intangible right is deprived through a bribe or kickback. See 130 S.

Ct. at 2928. Thus, nothing in Skilling warrants a conclusion that intangible property rights

can no longer support a Hobbs Act extortion or extortion conspiracy charge. See United

States v. Cain, --- F.3d ----, 2012 WL 265882, at *5–6 (2d Cir. 2012) (affirming

conviction for extortion under Hobbs Act of intangible right to solicit business).

Second, the vagueness concerns identified in Skilling with respect to the § 1346

right to honest services do not translate to the LMRDA rights derived from § 501(a). A

statute is not void for vagueness if it “define[s] the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v.

Lawson, 461 U.S. 352, 357 (1983); accord Arriaga v. Mukasey, 521 F.3d 219, 224 (2d Cir.

2008). “This test does not demand meticulous specificity in the identification of

proscribed conduct. Rather, it requires only that the statutory language conveys

sufficiently definite warning as to the proscribed conduct when measured by common

understanding and practices.” United States v. Farhane, 634 F.3d 127, 139 (2d Cir.)

22
(internal quotation marks and citations omitted), cert. denied sub nom. Sabir v. United

States, 132 S. Ct. 833 (2011). Additionally, “[v]agueness challenges to statutes not

threatening First Amendment interests are examined in light of the facts of the case at

hand; the statute is judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356,

361 (1988); accord Arriaga v. Mukasey, 521 F.3d at 223.

In challenging § 501(a) as vague, Coppola notably avoids discussion of the

statutory language, a failure that obscures critical textual distinctions between § 501(a) and

§ 1346. Whereas § 1346 provides no textual guidance about the duties whose violation

will amount to a deprivation of “honest services,” see, e.g., Sorich v. United States, 129 S.

Ct. 1308, 1310 (2009) (Scalia, J., dissenting from denial of certiorari) (discerning no

“coherent limiting principle” defining what “honest services” is, “whence it derives, and

how it is violated”), § 501(a) specifically enumerates the duties that labor representatives

owe to their union and its members: (1) to hold union money and property solely for the

benefit of the union and its members; (2) to manage, invest, and expend union money in

accordance with the union’s constitution and bylaws and any applicable resolutions; (3) to

refrain from dealing with the union as an adverse party or on behalf of an adverse party in

any matter connected with the representative’s union duties; (4) to refrain from holding or

acquiring any pecuniary or personal interest which conflicts with the interests of the union;

and (5) to account to the union for any profit received by the representative in whatever

capacity in connection with transactions conducted by him or under his direction on behalf

23
of the union. See 29 U.S.C. § 501(a). Thus, in contrast to § 1346, which references, at

best, only a general and undefined fiduciary standard, see Skilling v. United States, 130 S.

Ct. at 2936 (Scalia, J., concurring in part and concurring in judgment), § 501(a) avoids

unconstitutional ambiguity by detailing the duties owed and the persons from and to whom

they are owed, see Gurton v. Arons, 339 F.2d 371, 375 (2d Cir. 1964) (“A simple reading

of [§ 501(a)] shows that it applies to fiduciary responsibility with respect to the money and

property of the union and that it is not a catch-all provision under which union officials

can be sued on any ground of misconduct with which the plaintiffs choose to charge

them.”).

Third, while § 501(a) creates the intangible right here at issue, it does not define the

predicate crime. That task is performed by the Hobbs Act, which identifies a crime only

when property—including the intangible rights specified in § 501(a)—is obtained by

extortion. The Hobbs Act, unlike § 1346, cannot be construed to proscribe mere self-

dealing, that potentially “staggeringly broad swath of behavior,” Sorich v. United States,

129 S. Ct. at 1309 (Scalia, J., dissenting from denial of certiorari), that had raised

particular vagueness concerns regarding honest services fraud before Skilling, 130 S. Ct.

at 2932–33 & n.44 (noting that if Congress wished to criminalize self-dealing, it would

have to speak “more clearly than it has,” and further noting various concerns with limiting

standard proposed by government). To eliminate that vagueness concern, Skilling cabined

honest services fraud to cases in which the breach of duty was procured by the corrupt

24
participation of a “third party” who paid either “bribes or kickbacks” for the breach. See

id. at 2928. By contrast, because the principal in a Hobbs Act violation is not the party

committing the fiduciary breach, but the person who procures the breach by statutorily

specified wrongful means—extortion—the ambiguity concerns with § 1346 are simply not

present in the Hobbs Act. The extortion element of the Hobbs Act serves the same

limiting function as the bribe-kickback element of § 1346, serving notice that a crime

depends on a third party obtaining property through the wrongful use of threats or fear to

achieve the property’s surrender. Indeed, such extortion with respect to § 501(a) rights fits

within the core misconduct that is labor racketeering. See Evans v. United States, 504

U.S. 255, 262–63 (1992) (noting Congress passed Hobbs Act to prohibit labor

racketeering).

In sum, we identify nothing in Skilling that warrants a deviation from our holding

in Gotti that intangible property, specifically, the LMRDA rights derived from the

enumerated duties in § 501(a), can support a valid Hobbs Act extortion charge.

b. The Tangible Property Theories

The indictment alleged that Coppola obtained and conspired to obtain tangible

property from union members in the form of “labor union positions, money paid as wages

and employee benefits and other economic benefits” that the union members would have

obtained but for the conspirators’ “corrupt influence over [the] union.” Indictment ¶¶ 16,

19. Through trial and on appeal, the government focused on two tangible property

25
theories: (1) “tribute payments” from membership funds, and (2) “the salary and benefits

paid to [Local 1235] presidents who were not living up to their obligations to have the

membership in their best interest.” Trial Tr. at 1544.

Coppola does not—and cannot—contend that the extortion of tribute payments

from a union by an organized crime family fails to state a viable Hobbs Act offense.

Rather, he challenges the viability of the government’s “salary theory,” i.e., that Coppola

obtained tangible property from Local 1235 union members in the form of the salaries they

paid to corrupt union presidents. See Trial Tr. at 1644 (government summation: “When

the Mob threatens a union leader to get a union leader to do what it wants, the Mob

deprives the union membership [of] the benefit of the salary that they paid that official.

The Mob deprives the membership of a union leader who will exercise his rights solely in

the interest of the membership of the union.”).11

In support, Coppola relies on Scheidler v. National Organization for Women, Inc.,

537 U.S. 393 (2003), which holds that the use of threats or fear to interfere with or disrupt

a person’s exercise of property rights is not enough to establish a Hobbs Act violation. A
11
We note that this salary theory is somewhat distinct from the variant upheld by a
number of courts in the fraud context, where a defendant fraudulently obtains a position and
therefore also receives the salary and benefits that come with that position. See, e.g., United
States v. Granberry, 908 F.2d 278, 280 (8th Cir. 1990); United States v. Doherty, 867 F.2d
47, 60 (1st Cir. 1989) (Breyer, J.); but see United States v. Ratcliff, 488 F.3d 639, 645 (5th
Cir. 2007) (rejecting that theory in election fraud context); United States v. Turner, 465 F.3d
667, 681 (6th Cir. 2006) (same). We have no occasion to determine whether, as the
government urges, this court has implicitly accepted that variant of the “salary theory.” See
United States v. Schermerhorn, 906 F.2d 66, 69 (2d Cir. 1990); Ingber v. Enzor, 841 F.2d
450, 456 (2d Cir. 1988).
26
defendant must “obtain” the property for himself. Id. at 405. The government has never

claimed that the Genovese family obtained the actual dollars that were supposed to be paid

as salary to Local 1235 presidents. Rather, it contends that the enterprise received the

loyalty of these presidents without having to pay for it because the presidents were

compensated by the union membership. This, Coppola submits, at most alleges the

procurement of members’ intangible right to their presidents’ honest services, a claim that

cannot be maintained under either the Hobbs Act or § 1346 after Skilling. Cf. United

States v. Goodrich, 871 F.2d 1011, 1013–14 (11th Cir. 1989) (concluding, in fraud

context, that similar theory could be maintained only as fraudulent deprivation of

intangible rights, not property).

The point merits little discussion because even if we were to agree with Coppola

and, further, conclude that Yates v. United States, 354 U.S. at 312, applied to these

circumstances, any error would be harmless. See Hedgpeth v. Pulido, 555 U.S. at 58;

accord Skilling v. United States, 130 S. Ct. at 2934 n.46. If the jury found that Coppola

conspired to extort the salaries of Local 1235 presidents by corrupting them to act in the

interests of the Genovese family rather than their membership, then the jury necessarily

would have had to conclude that Coppola conspired to extort the union membership of its

intangible LMRDA rights under § 501(a).12 For the reasons stated in the preceding
12
The Supreme Court in Skilling did not specify the standard applicable to harmless
error review in this context. See United States v. Skilling, 638 F.3d 480, 481–82 (5th Cir.
2011) (noting uncertainty and determining whether, on review of record, appellate court
could determine beyond reasonable doubt that jury would have convicted on valid ground,
27
section, we conclude that the alleged extortion of such LMRDA rights is validly

proscribed by the Hobbs Act even after Skilling. Moreover, as discussed below, the

government adduced sufficient evidence to support the jury’s finding that Coppola

extorted the LMRDA rights of Local 1235 members.

We thus reject Coppola’s challenge to the validity of Racketeering Act One.

2. Sufficiency of Evidence To Prove Extortion Subpredicates

Coppola challenges the sufficiency of the evidence to support the jury’s conclusion

that (a) he obtained and conspired to obtain tangible or intangible property from Local

1235 members; (b) with consent; (c) through the wrongful use of actual or threatened fear

or violence. The record defeats his arguments.

a. Property Obtained from Local 1235 Members

The recorded March 6, 2007 conversations between Coppola and Edward Aulisi

provide direct evidence that Coppola obtained and conspired to obtain property belonging

to the members of Local 1235 for the benefit of the Genovese family. The conversations

indicate that the property at issue was both tangible, insofar as Coppola received monies

belonging to the union membership, and intangible, insofar as he deprived members of

their § 501(a) right to have union presidents hold union “money and property solely for the

citing Neder v. United States, 527 U.S. 1, 19 (1999)); United States v. Black, 625 F.3d 386,
392 (7th Cir. 2010) (asking whether reasonable jury might have convicted on invalid theory
but acquitted on valid theory). We need not decide this question, because the error here
would be harmless under any conceivable standard. Proof of extortion under the salary
theory necessarily establishes the facts required to show extortion of LMRDA rights.
28
benefit of the organization and its members” and obtained for himself the right to dispose

of such money and property for the benefit of the Genovese family.

In reaching this conclusion, we assume that the jury interpreted certain coded terms

to reference three Local 1235 presidents: (1) “the Vet” referenced then-Local 1235

president, Vincent Aulisi, based on the context of the conversation as well as the fact that

Vincent Aulisi’s initials, “VA,” are an acronym for the Veterans Administration;

(2) “Cong” referenced Vincent Colucci, based on Coppola’s statements that Cong had “the

same name” as the younger Aulisi’s “Pop,” i.e., “Vincent,” and “was the first one,” i.e.,

the first Local 1235 president to align the union with the Genovese family, as testified to

by Barone, Gov’t Ex. TR-CD-7 (T6) at 7;13 and (3) “Bull” referenced outgoing Local 1235

president Albert Cernadas, based on Coppola’s statement that a party was being thrown for

him, which was corroborated by agent testimony.

With this understanding, a reasonable jury could have found that, in the March 6

conversations, the younger Aulisi was conveying to Coppola his father’s assurances that

Local 1235 would continue to make tribute payments to the Genovese family. Edward

Aulisi reported to Coppola that outgoing Local 1235 president Cernadas had made

statements suggesting that “month[ly]” payments and “Christmases” were “gonna end”

when he stepped down as president. Gov’t Ex. TR-CD-7 (T6) at 6. By themselves, such

13
As the government argued, the inference was reinforced by the fact that Colucci’s
initials, “VC,” were a common acronym for the Viet Cong, sometimes called simply “the
Cong.” The Vietnam War ended in 1975, the first year of Colucci’s presidency.
29
statements confirmed that Coppola and the Genovese family had obtained membership

money in the past. The younger Aulisi, however, went further, stating that his father had

told Cernadas that he was wrong about the payments ending: “[T]he beat goes on, whether

you’re here or not.” Id. Indeed, Edward Aulisi told Coppola that payments not only

would continue, but also that amounts collected had “almost doubled,” id., and that he had

“another chunk” for Coppola, representing approximately three months’ payments, Gov’t

Ex. TR-CD-7 (T7) at 1–2. These statements permitted the jury to find that Coppola was

involved in a continuing scheme to obtain union members’ tangible and intangible

property.

In urging a different view of the March 6 conversations, Coppola submits that the

government’s interpretation of coded references and its assertion that the conversations

concerned money payments were uncorroborated. In any event, Coppola asserts that, even

if the conversations did reference money payments, the source was not necessarily Local

1235 membership funds. The payments could as easily have come from Edward Aulisi’s

trucking business or from Vincent Aulisi’s personal funds.

The argument is not convincing. As our discussion of code names in the March 6,

2007 conversations demonstrates, the references are not as obscure as Coppola urges. Nor

are the interpretations and inferences urged by the government so speculative as to

preclude adoption by a reasonable jury familiar with the totality of the evidence. Indeed,

the inferences are entirely consistent with the totality of the evidence, which established

30
the common scheme or plan employed by the Genovese family to control substantial parts

of the New York–New Jersey waterfront and to extort millions of dollars from businesses

and unions alike through fear. Insofar as Coppola hypothesizes alternative sources for the

monies paid, we are “mindful that the task of choosing among permissible competing

inferences is for the jury, not a reviewing court.” United States v. Florez, 447 F.3d 145,

154–55 (2d Cir. 2006). Coppola was free to argue—and in fact did argue—alternative

inferences in urging the jury to interpret the March 6 conversations narrowly in his favor,

but we cannot conclude that a reasonable jury was compelled as a matter of law to adopt

Coppola’s arguments.

Assuming, as we must, that the jury drew the inferences permissibly urged by the

government, we conclude that the March 6 conversations provide direct evidence that

Coppola had obtained and conspired to obtain tangible property in the form of Local 1235

membership monies and intangible property in the form of the members’ § 501(a) right to

have union presidents dispose of that money for the sole benefit of members and the

union, not for the benefit of the Genovese family. This part of Coppola’s sufficiency

challenge, therefore, fails on the merits.14
14
We note that, as further evidence that Coppola extorted union members’ § 501(a)
rights to have Local 1235 presidents dispose of union property for their benefit rather than
that of the Genovese family, the government points to parts of the March 6, 2007
conversations indicating that Coppola had made and was continuing to make final decisions
regarding certain union job placements. Coppola counters that the statements show that he
prevented Local 1235 presidents from engaging in nepotism, conduct that did not violate
union members’ rights but rather protected them. This misses the point. A jury could
reasonably conclude that if Coppola exercised control over union presidents’ job decisions
31
 b. Consent

Coppola contends that the evidence was insufficient to satisfy the Hobbs Act’s

consent element because the victims of the charged extortion were the Local 1235

members whose property was obtained, not the union presidents, and no union member

“testified to consenting to any property transfer.” Appellant Br. at 54.15 Indeed, in its bill

of particulars, the government maintained that Local 1235 members were unaware that

“their leadership was beholden to organized crime . . . [or] that tribute payments were

being made to members of organized crime.” Gov’t Letter at 2, United States v. Coppola,

08-cr-763 (JG) (E.D.N.Y. May 22, 2009), ECF No. 33.

While styled as a sufficiency challenge, Coppola’s argument appears to question

the legal validity of the indictment, which specifically charged Coppola with conspiring to

obtain the property of “Local 1235 union members . . . with the consent of such union

members’ officers, agents, delegates, employees and other representatives, which consent

was to be induced by wrongful use of actual and threatened force, violence and fear.”

Indictment ¶¶ 16, 19. Coppola appears to be arguing that only a property owner, and not

despite having no position in the union and, in fact, being legally barred from having any
dealings with union members, such control did not operate to the benefit of members. We
need not pursue the matter further because, even without this evidence, the record of money
payments to Coppola is sufficient to support a jury finding that he deprived Local 1235
members of the § 501(a) right to have union monies disposed of for their benefit and had
obtained for himself the right to have such monies disposed of for the benefit of the
Genovese family.
15
The government does not argue, and we therefore do not consider, whether the
union presidents were also members of the union.
32
an agent in possession, can provide the consent necessary to establish an extortion. We

are not persuaded.

In Gotti, the district court similarly charged the jury that the members’ agents,

representatives, or trustees could provide the necessary consent. See United States v.

Gotti, 459 F.3d at 329. While we had no occasion in Gotti to discuss the consent element

of extortion, upon review of the language of the statute, we now clarify that there is no

requirement that the property owner provide the necessary consent. See generally

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must

presume that a legislature says in a statute what it means and means in a statute what it

says there. When the words of a statute are unambiguous, then this first canon is also the

last: judicial inquiry is complete.” (internal quotation marks and citations omitted)); accord

United States v. Salim, 549 F.3d 67, 78 (2d Cir. 2008).

Title 18 U.S.C. § 1951(b)(2) defines extortion as “the obtaining of property from

another, with his consent, induced by wrongful use of actual or threatened force, violence,

or fear, or under color of official right.” The statute does not use the word “owner” to

limit the class capable of giving the requisite consent. Nor would such a limitation make

sense given that the consent element serves not to distinguish illegal from legal obtaining

of property by the wrongful use of threats or fear, but rather to distinguish between two

illegal means of so obtaining property: extortion (with consent) and robbery (without

consent). See United States v. Zhou, 428 F.3d 361, 371–72 (2d Cir. 2005) (noting that

33
“victim’s consent” is essential element of crime of extortion and “razor’s edge that

distinguishes extortion from robbery”).

A predecessor statute employed somewhat different language with respect to the

consent element: “[o]btains the property of another, with his consent.” Anti-Racketeering

Act of 1934, ch. 569, 48 Stat. 979, § 2(b) (emphasis added). Even if the quoted language

from this earlier statute might be construed to require the consent of the person who owns

the property obtained—a question we need not decide—the language of the phrase

“obtaining of property from another, with his consent” in the current statute reaches more

broadly. 18 U.S.C. § 1951(b)(2) (emphasis added). It references any circumstance in

which property is obtained from a person with that person’s consent. This plainly

encompasses persons holding property in a fiduciary capacity for an owner, such as the

union officials referenced in the indictment. Indeed, this court has upheld Hobbs Act

convictions involving extortions of individuals not in lawful possession of the property

obtained. See, e.g., United States v. Gotti, 459 F.3d at 325–26 (deeming “untenable”

proposition that “one can never ‘extort,’ under the Hobbs Act, illegal property (such as

narcotics)”); United States v. Scarpa, 913 F.2d 993, 999 (2d Cir. 1990) (affirming

conviction for extorting rival drug dealers); see also United States v. Box, 50 F.3d 345,

353 (5th Cir. 1995) (affirming conviction for extorting forfeited drug proceeds); cf. United

States v. Celaj, 649 F.3d 162, 168–69 (2d Cir. 2011) (affirming conviction for Hobbs Act

robbery of marijuana). Moreover, we have recognized that businesses may be extorted

34
under the Hobbs Act by using threats or fear to induce certain employees’ consent to part

with company property. See United States v. Daley, 564 F.2d 645, 649 (2d Cir. 1977).

Thus, while we have described the consent element by reference to “victim’s

consent,” United States v. Zhou, 428 F.3d at 372, the requirement can be satisfied, as in

this case, by showing that union officials were wrongfully induced to consent to surrender

property that they held in trust for the union membership. Indeed, while Local 1235

members were undoubtedly the primary victims of the charged extortion in that they lost

both tangible and intangible property, their union presidents might also be deemed

victims—albeit less sympathetic ones—insofar as they were forced to choose between

“relinquishing some property [belonging to the membership] immediately or risking

unlawful violence.” United States v. Arena, 180 F.3d 380, 395 (2d Cir. 1999). The Hobbs

Act “prohibits the extortionist from forcing a victim to make such a choice.” Id.; see

United States v. Cain, 2012 WL 265882, at *6 (noting that extortion victim is presented

with “Hobson’s choice” (internal quotation marks omitted)). Because there is no question

as to the sufficiency of the evidence to permit a reasonable jury to find that Local 1235

presidents consented to surrender to the Genovese family property that the presidents held

for the union membership, this part of Coppola’s sufficiency challenge also fails.

c. Use of Fear

Similarly meritless is Coppola’s sufficiency challenge to that element of extortion

requiring that consent be induced by the “wrongful use of actual or threatened force,

35
violence, or fear.” 18 U.S.C. § 1951(b)(2). Insofar as Coppola submits that the

government offered no evidence that he ever threatened any Local 1235 president in order

to induce payments, we have held that the Hobbs Act “leaves open the cause of the fear”

inducing a party to consent to part with property and does not require that such fear be

“created by implicit or explicit threats.” United States v. Gotti, 459 F.3d at 333 (internal

quotation marks omitted). What is required is evidence that the defendant knowingly and

willfully created or instilled fear, or used or exploited existing fear with the specific

purpose of inducing another to part with property. See id.; United States v. Abelis, 146

F.3d 73, 83 (2d Cir. 1998).

Insofar as Coppola maintains that the cordiality of his March 6, 2007 conversations

with Edward Aulisi precluded a finding of underlying fear, we are not convinced. A

reasonable jury could have concluded that the necessary fear of Genovese family

retaliation had been instilled over decades across the Manhattan and New Jersey

waterfronts. See United States v. Hedman, 630 F.2d 1184, 1194 (7th Cir. 1980) (rejecting

argument that seeming cordiality between extortionist and victim precluded finding that

payment was induced by fear).

The totality of the evidence here demonstrated that “fear, intimidation, whatever”

were the means routinely used by members of the Genovese family who conspired over

half a century to control unions and businesses operating on the Manhattan and New

Jersey waterfronts. Trial Tr. at 1114; see supra Part I.B. Unions and businesses that met

36
Genovese family payment demands were allowed to operate without interference. Those

that did not faced personal violence and/or economic destruction.

Further, where an organized crime enterprise cultivates a reputation for violence

and intimidation in achieving its conspiratorial goal of control throughout an industry or

area, a jury may reasonably consider that reputation in assessing whether payments were

induced by the exploitation of existing fear without an explicit or implicit threat. See

United States v. Mulder, 273 F.3d 91, 103–04 (2d Cir. 2001) (noting that “[b]ad reputation

is relevant to the fear element in a Hobbs Act conspiracy since such a reputation

frequently conveys a tacit threat of violence” (internal quotation marks omitted)). Here,

evidence showed that Coppola and his one-time captain Fiumara cultivated and used the

Genovese family’s reputation for violence in furtherance of extortionate endeavors.

Thomas Buzzanca, vice president of Local 1804-1, which like Local 1235 was controlled

by Fiumara and Coppola on behalf of the Genovese family, told William Montella,

another Genovese extortion victim, that “everybody fears” Fiumara and that “we all live

under[] fear” when dealing with him. Gov’t Ex. TR-CD-5b at 1–2, 5. Coppola’s

willingness to exploit the fear attending the Fiumara crew was evidenced by his allusion to

“contacts” in telling undercover officer Delaney that the price for labor peace was a

percentage of his business’s profits. Trial Tr. at 148. Further, the evidence showed that

Cernadas, in making payments to Fiumara and Coppola on behalf of Local 1235, knew

that these men had a reputation, even among their criminal confederates, for being

37
particularly powerful within the Genovese family. See id. at 1145. Viewed in this

context, Coppola’s March 6, 2007 statement to Edward Aulisi that “we were right next to”

Cernadas “all the time” to prevent a union appointment is hardly benign. Rather, it

demonstrates Coppola’s exploitation of existing fear of Genovese family retaliation to

achieve a result desired by the enterprise. Similarly, a reasonable jury could conclude that

Vincent Aulisi’s eagerness to assure Coppola that Local 1235 would continue to

meet—and even exceed—its past tribute payments was animated by fear of organized

crime retaliation. That conclusion is only reinforced by the fact that Vincent Aulisi felt

obliged to give such assurances to a man who was a fugitive from the law and judicially

barred from having anything to do with any ILA local. It was further evidenced by the

younger Aulisi’s subservient manner in accounting to Coppola for monies collected and

explaining a possible delinquency.

In sum, we conclude that the evidence was sufficient to support the jury’s finding

that all elements of the extortion predicates of Racketeering Act One were proved.

B. The Pattern of Racketeering Activity

Coppola contends that the evidence was insufficient to demonstrate that the two

proved racketeering acts were sufficiently related to each other and the charged enterprise

to satisfy the pattern element of racketeering. See, e.g., United States v. Basciano, 599

F.3d 184, 202 (2d Cir. 2010) (discussing horizontal and vertical relatedness required to

demonstrate pattern). Specifically, he argues that his reason for obtaining fraudulent

38
identification documents was “personal,” i.e., to evade prosecution for murder, and

unrelated to the enterprise or the charged extortion or fraud of Local 1235. This argument

merits little discussion.

The pattern element serves to prevent application of the racketeering statute to

“perpetrators of isolated or sporadic criminal acts.” United States v. Payne, 591 F.3d 46,

64 (2d Cir. 2010) (internal quotation marks omitted). The Supreme Court, however, has

described the pattern concept as “fairly flexible,” so that it can be “demonstrated by

reference to a range of different ordering principles or relationships between predicates.”

H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238–39 (1989). “At the highest level of

generality,” both vertical and horizontal relatedness “can be established simply by

connecting diverse predicate acts to an enterprise ‘whose business is racketeering activity,’

such as an organized crime family.” United States v. Basciano, 599 F.3d at 202 (quoting

United States v. Indelicato, 865 F.2d 1370, 1383 (2d Cir. 1989) (en banc)). Narrower

patterns of racketeering may be defined and proved by reference to other unifying

principles, including temporal proximity of the predicates, their common goals, similarity

of methods, or repetitions. See id.

Here, even if Coppola could have secured fraudulent identification documents

without regard to his membership in the Genovese family and without the assistance of

Genovese confederates, the evidence showed that he availed himself of the cover provided

by fraudulent documents not only to avoid a murder prosecution, but also to pursue his

39
“lifetime occupation” as part of organized crime. Sentencing Tr. at 32; see United States

v. Burden, 600 F.3d 204, 217 (2d Cir. 2010) (holding that predicate may be related to

enterprise even when defendant could have committed act absent connection to

enterprise). As the district court aptly observed, the “elaborate scheme of identifications

and phone cards and communications to stay a fugitive even as Mr. Coppola was a fully

functioning captain of the Genovese family—a member, at least, of the Genovese family,”

showed that “none of that fugitivity had any impact on his illegal control of the union local

over in New Jersey.” Sentencing Tr. at 33. Indeed, Coppola’s March 6, 2007

conversations with Edward Aulisi about the continued extortion of money from Local

1235 occurred within days of Coppola’s conversations with his stepson Louis Rizzo

concerning the procurement of fraudulent identification documents.16 On this record, a

jury could reasonably find a vertical relationship between Coppola’s acquisition of

fraudulent identification documents and the Genovese family enterprise because the

fraudulent documents “facilitat[ed] . . . the enterprise’s continuation of its criminal

activities.” United States v. Payne, 591 F.3d at 64 (concluding that murder of potential

informant furthered enterprise by reducing threat of disruption by law enforcement).

Further, insofar as the fraudulent documents facilitated the ongoing extortion of Local

16
Although Coppola maintains that there was no evidence that Rizzo was associated
with the Genovese family, record evidence supports an inference that Rizzo was involved
with Coppola in enterprise activities. See, e.g., Gov’t Ex. TR-CD-7 (T1) at 4–5 (Rizzo and
Coppola discussing “squeeze play” for scrap metal); Gov’t Ex. TR-CD-7 (T2) at 4 (Rizzo
telling Coppola “we’re running low on green, I’m gonna need to clean somebody”).
40
1235, and both predicates were connected to the Genovese family enterprise, the evidence

also established the requisite horizontal relationship.

United States v. Bruno, 383 F.3d 65 (2d Cir. 2004), cited by Coppola, is not to the

contrary. There, we held that no rational juror could find certain shootings related to the

charged enterprise—again, the Genovese family—because substantial evidence showed

that the shootings occurred in contravention of Genovese protocols and so damaged the

defendant’s standing within that enterprise that the leadership considered killing him in

response. See id. at 84–85. In that context, we ruled that the shootings were “simply

personal matters.” Id. at 85. No comparable evidence in this case indicates that Coppola

maintained his fugitive status in defiance of the enterprise. To the contrary, the record

shows that Coppola continued to earn money for the Genovese family while a fugitive and

that the enterprise continued to reward Coppola for his efforts.

Accordingly, there is no merit to Coppola’s sufficiency challenge to the pattern

element of the racketeering counts of conviction.

C. Evidentiary Objections

Coppola contends that he was denied a fair trial by the admission of evidence of

unlawful Genovese and Gambino activity that did not specifically implicate him or pertain

to Local 1235. He alleges two types of error: (1) the admission of irrelevant or unfairly

prejudicial evidence, see Fed. R. Evid. 401, 403; and (2) the admission of hearsay based

41
on a misapplication of the co-conspirator exception, see Fed. R. Evid. 801(d)(2)(E). The

arguments fail on the merits.

1. Rules 401 and 403

The standard of review applicable to Coppola’s Rule 401/403 challenge is highly

deferential in recognition of the district court’s “superior position to assess relevancy and

to weigh the probative value of evidence against its potential for unfair prejudice.” United

States v. Abu-Jihaad, 630 F.3d 102, 131 (2d Cir. 2010). Thus, “we will reverse an

evidentiary ruling only for abuse of discretion, which we will identify only if the ruling

was arbitrary and irrational.” Id. (internal quotation marks omitted). We identify no such

abuse in this case.

Insofar as Coppola challenges the admission of evidence of conduct distinct from

the charged predicates and not directly involving Coppola, the district court reasonably

found such evidence relevant to prove both the enterprise and pattern elements of the

charged racketeering crimes. See United States v. Turkette, 452 U.S. 576, 583 (1981)

(recognizing that, although enterprise and pattern are distinct elements of racketeering,

evidence proving these elements “may in particular cases coalesce”); accord United States

v. Cain, 2012 WL 265882, at *8. Evidence is “relevant” if it has “any tendency to make a

fact more or less probable than it would be without the evidence” and if “the fact is of

consequence in determining the action.” Fed. R. Evid. 401.17 “[E]vidence of numerous
17
To avoid future confusion, we quote the restyled Federal Rules of Evidence, which
took effect December 1, 2011, because their substance is the same as the version in effect at
42
criminal acts by a variety of persons” may be relevant to prove the enterprise and pattern

elements of racketeering. United States v. DiNome, 954 F.2d 839, 843 (2d Cir. 1992).

Thus, even though a defendant “may reasonably claim no direct participation” in the acts

of others, evidence of those acts may be relevant to prove (1) the “existence and nature” of

the racketeering enterprise, and (2) a pattern of racketeering activity by the defendant “by

providing the requisite relationship and continuity of illegal activities.” Id.; accord United

States v. Basciano, 599 F.3d at 207 & n.17. Such conduct is not “other” crime evidence

subject to Fed. R. Evid. 404(b); rather, it is evidence of the very racketeering crimes

charged. See United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992); see also

United States v. Basciano, 599 F.3d at 205 (“[I]t is the pattern of activity, not the

predicates, that is punished by a racketeering conviction.”).18 Here, the challenged

evidence, although outside the proved predicates and not always involving Coppola,

nevertheless demonstrated both (1) the existence of the Genovese crime family, the

charged enterprise; and (2) the proved predicates’ part in a broad pattern of racketeering

the time of Coppola’s trial. See Fed. R. Evid. 401 advisory committee’s note.
18
As we stated in Basciano, a broad pattern of racketeering, encompassing a wide
range of criminal activities by an organized crime enterprise over several decades, affords
the government “the greatest latitude to rely on a wide range of crimes” in carrying its burden
to prove racketeering; at the same time, however, it “provides the broadest shield against a
successive racketeering prosecution based on other criminal activities fitting within that
pattern.” 599 F.3d at 203. We have no occasion on this appeal to consider whether, or to
what extent, the Double Jeopardy Clause might preclude any future prosecutions of Coppola
for racketeering crimes based on the Genovese family’s criminal control of the New York
and New Jersey waterfronts.
43
spanning several decades whereby enterprise confederates used extortion and related

crimes to control businesses and unions operating across the Manhattan and New Jersey

waterfronts, in the process generating millions of dollars in revenues for the Genovese

family.19

Nor can Coppola show that it was arbitrary or irrational for the district court not to

have excluded the challenged evidence as more unfairly prejudicial than probative. See

Fed. R. Evid. 403. While the proof of numerous uncharged criminal acts by members of a

racketeering enterprise can pose a risk of prejudice to a single defendant, see United States

v. Matera, 489 F.3d 115, 121 (2d Cir. 2007), on review of a district court decision to admit

evidence, we “generally maximize its probative value and minimize its prejudicial effect,”

United States v. Abu-Jihaad, 630 F.3d at 132 (internal quotation marks omitted). Doing so

here, we identify no error in the district court’s determination that the highly probative

value of the challenged evidence to prove enterprise and pattern outweighed the risk of

unfair prejudice. See United States v. Mejia, 545 F.3d 179, 207 (2d Cir. 2008)

(identifying no abuse of discretion in admission of similar evidence despite “significant

risk of prejudice”). Indeed, the risk of unfair prejudice was not high in this case because

the challenged evidence—consisting largely of extortion of waterfront businesses and

19
Insofar as the challenged evidence pertained to wage amounts earned by enterprise-
controlled employees, such evidence was relevant to proof of enterprise and pattern because
it demonstrated Genovese family control of lucrative union positions. Thus, the evidence
was relevant even without regard to the government’s salary theory of extortion. Moreover,
Coppola cannot show any unfair prejudice from its admission.
44
unions other than Local 1235—is not “especially worse or [more] shocking” than the

activity charged in Racketeering Act One. United States v. Mercado, 573 F.3d 138, 142

(2d Cir. 2009). Further, the district court adequately safeguarded against the possibility

that the jury might convict Coppola based on crimes committed by others through

instructions given both during the prosecution case and before deliberations. See United

States v. Abu-Jihaad, 630 F.3d at 133 (upholding Rule 403 determination where limiting

instruction minimized risk of prejudice); United States v. Mercado, 573 F.3d at 142

(noting “strong presumption that juries follow limiting instructions” (internal quotation

marks omitted)).

Coppola further invokes Rules 401 and 403 to argue error in the admission of the

1991 default judgment barring him from contact with the ILA or any related labor

organization. See Default Judgment, United States v. Local 1804-1, Int’l Longshoremen’s

Ass’n, AFL-CIO, 90-cv-96. He contends that such evidence was irrelevant and, in any

event, more prejudicial than probative in the absence of any proof of his awareness of the

judgment. We disagree. The judgment was relevant to demonstrate that Coppola’s

control of Local 1235 was necessarily corrupt because barred by law. Any questions as to

Coppola’s awareness of the judgment thus went to weight, not admissibility, and Coppola

cannot claim unfair prejudice compelling a new trial where he was free to urge the jury to

consider the absence of proof of notice in deciding what weight to accord the default

judgment bar.

45
 2. Hearsay

Coppola’s hearsay challenge to admitted out-of-court statements by persons other

than himself fails because the district court reasonably found such statements admissible

under Fed. R. Evid. 801(d)(2)(E). Pursuant to that rule, a district court may admit an out-

of-court declaration that would otherwise be hearsay if it finds “by a preponderance of the

evidence (a) that there was a conspiracy, (b) that its members included the declarant and

the party against whom the statement is offered, and (c) that the statement was made

during the course of and in furtherance of the conspiracy.” United States v. Farhane, 634

F.3d at 161 (internal quotation marks omitted); see Bourjaily v. United States, 483 U.S.

171, 175–76 (1987). We review a district court’s admission of evidence under Rule

801(d)(2)(E) only for clear error, see United States v. Farhane, 634 F.3d at 160–61, and we

identify none here.20

In the context of organized crime, the conspiracy requirement of Rule 801(d)(2)(E)

requires proof of more than “the general existence of the Mafia.” United States v.

Gigante, 166 F.3d 75, 82 (2d Cir. 1999). Rather, a preponderance of the evidence must

demonstrate a common agreement to achieve a particular objective in furtherance of which

the out-of-court statement is made. See United States v. Russo, 302 F.3d 37, 44 (2d Cir.

20
To the extent Coppola’s hearsay challenge on appeal extends to statements to which
he did not object at trial, our review is limited to plain error. See United States v. Diaz, 176
F.3d 52, 83 (2d Cir. 1999). We do not attempt to delineate which out-of-court statements are
subject to clear error review and which to plain error review because, for the reasons stated
in text, Coppola cannot demonstrate clear, much less plain, error.
46
2002). That said, the objective of the joint venture need not be any particular “crime

charged in the indictment.” Id. at 45.

The indictment in this case in fact charged two conspiracies: a subpredicate

conspiracy, the object of which was to extort Local 1235 members, see Indictment ¶ 16,

and a racketeering conspiracy, the object of which was to conduct the affairs of the

Genovese family through a pattern of racketeering activity, see id. ¶ 25. While Coppola’s

hearsay challenge focuses on the narrower extortion conspiracy, it is the broader

racketeering conspiracy that supports the district court’s Rule 801(d)(2)(E) rulings,

particularly as the object of the pattern of racketeering was grounded in two further

conspiracies: a conspiracy between the Genovese and Gambino families to divide criminal

control of the metropolitan New York waterfront, and a conspiracy among numerous

Genovese confederates to use that enterprise’s control over businesses and unions

operating on the Manhattan and New Jersey waterfronts to generate large revenues for the

enterprise.

A preponderance of the evidence, including the challenged out-of-court statements

and independent corroborating evidence, easily established the existence of a racketeering

conspiracy reaching beyond the agreement to extort Local 1235. See United States v.

Tellier, 83 F.3d 578, 580 (2d Cir. 1996) (holding that court may consider challenged

statements in making Fed. R. Evid. 801(d)(2)(E) determination if supported by some

independent corroborating evidence); Bourjaily v. United States, 483 U.S. at 177–79. A

47
preponderance of the evidence also demonstrated both Coppola’s and each out-of-court

declarant’s membership in the larger conspiracy. Finally, a preponderance of the evidence

supported the district court’s determination that each out-of-court statement was made in

furtherance of the racketeering conspiracy.

Accordingly, we reject Coppola’s evidentiary challenges as without merit.21

D. Jury Charge

Coppola asserts that three legal errors in the district court’s jury instructions compel

a new trial: (1) failure to charge “mere association”; (2) erroneously conveying a

presumption of guilt in a supplemental instruction; and (3) failure to charge honest

services as limited by Skilling v. United States, 130 S. Ct. 2896. We review a jury

instruction challenge de novo, but we will reverse only where the charge, viewed as a

whole, demonstrates prejudicial error. See United States v. Sabhnani, 599 F.3d 215, 237

(2d Cir. 2010). That is not this case.

1. Mere Association

Although the district court did not state in so many words that more than “mere

association with others engaged in criminal activity” is necessary to support a conviction,

United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (internal quotation marks
21
We also deem meritless Coppola’s contention that the district court abused its
discretion in limiting the cross-examination of prosecution witness Robert Delaney regarding
certain tangential matters. See United States v. Figueroa, 548 F.3d 222, 227 (2d Cir. 2008)
(noting trial court’s “broad discretion” to limit inquiry into potential bias of prosecution
witness to avoid harassment, prejudice, or confusion of the issues (internal quotation marks
omitted)).
48
omitted), it effectively conveyed that essential idea. In its conspiracy instruction, the court

“stress[ed]” that “merely being present[] at a place where criminal conduct is underway

doesn’t make a person a member of a conspiracy” and that “the defendant must have

participated with knowledge of at least some of the purposes or objectives of the

conspiracy and with the intention of aiding in the accomplishment of its unlawful ends.”

Trial Tr. at 1808. In its aiding and abetting instruction, the court stated that “the mere

presence of a defendant where a crime is being committed, . . . even coupled with

knowledge by the defendant that a crime is being committed, or the mere acquiescence by

a defendant in the criminal conduct of others, even with guilty knowledge, is not

sufficient” and that the jury must find that defendant “participate[d] in the crimes charged

as something he wished to bring about.” Id. at 1810. Further, it conveyed that more than

mere association was necessary to support conviction for substantive racketeering by its

instruction that the jury must find that Coppola “played some part in the operation or

management of the enterprise.” Id. at 1826. Thus, we identify no error warranting a new

trial. See United States v. Han, 230 F.3d 560, 565 (2d Cir. 2000) (holding that defendant

“has no cause to complain” where court communicates substance of requested charge).

2. Supplemental Charge

In response to a jury request to “clarify how many acts have to be proven in order

to reach a verdict on Count No. One,” i.e., substantive racketeering, Trial Tr. at 1854, the

district court instructed that “[b]efore you can find the defendant guilty of Count No. One,

49
you must find beyond a reasonable doubt unanimously that at least two racketeering acts

have been proved,” id. at 1859. The district court re-emphasized that proof of two acts

was not itself sufficient to support conviction; the government was further required to

prove each of the other elements of racketeering. Defense counsel expressly agreed to this

instruction before it was read to the jury, raising an objection only after the jury indicated

it had reached a verdict.

We need not here decide whether counsel’s failure to object to the supplemental

instruction before the jury resumed its deliberations limits our review to plain error, see

Fed. R. Crim. P. 30(d), because the instruction was not error at all. Coppola contends that

the instruction suggests a “goal to convict” insofar as it responds to a jury inquiry about

the number of acts required to reach a “verdict” with the number of acts required to reach

a “guilty verdict.” Appellant Br. at 102. But the jury inquiry can only reasonably be

construed to pertain to a guilty verdict as there would be no need to ask how many acts

must be proved to return a verdict of acquittal. Because the supplemental instruction was

a correct statement of the law, we identify no error.

3. Honest Services

Coppola faults the district court’s honest services instruction for failing to charge

the bribe-kickback element recognized in Skilling. He submits that this error requires a

new trial because the concept of honest services “ran through the entirety of the

50
government’s case to the other Act One subpredicates as well.” Appellant Br. at 103. We

disagree.

Where jury instructions omit an element of the charged crime, we review the error

for harmlessness beyond a reasonable doubt. See United States v. Brunshtein, 344 F.3d

91, 99–100 (2d Cir. 2003) (asking whether it is “‘clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the error’” (quoting Neder v.

United States, 527 U.S. at 18)). Here, the error related only to the wire fraud subpredicate,

and not to the extortion subpredicates. The district court correctly charged the intangible

rights theory of extortion by reference to the LMRDA’s enumerated duties, making no

mention of the general right to honest services, which it referenced only in the context of

the wire fraud subpredicate. Nor did the government invoke any right to honest services in

its summation relating to extortion, relying only on the LMRDA right to have union

officials manage union property “in their [i.e., the members’] interest alone.” Trial Tr. at

1645. On this record, we conclude beyond a reasonable doubt that the jury would have

found the extortion subpredicate proved even absent the error in charging wire fraud.

Thus, no new trial is warranted.22
22
Because the error is harmless under the Neder standard, we need not consider
whether application of that standard is unnecessary because the error did not pertain to the
subpredicate on which we rely to affirm the conviction. Nor need we consider how the
standard of review might be affected by Coppola’s failure to raise this issue before the
district court. See United States v. Bahel, 662 F.3d 610, 634 (2d Cir. 2011) (noting we have
applied a “modified plain error approach” where a jury instruction error arises due to
intervening case law, but leaving open whether this approach survives Johnson v. United
States, 520 U.S. 461 (1997)).
51
 E. Sentencing

Coppola argues that his sixteen-year sentence is unreasonable, both as a matter of

procedure and substance. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)

(en banc) (recognizing procedural and substantive components of reasonableness review).

In reviewing a sentence for reasonableness, we apply a standard akin to abuse of

discretion, see id. at 187–88, and we identify no such abuse here.

1. Procedural Reasonableness

A mistaken Guidelines calculation is a procedural error that can render even a non-

Guidelines sentence unreasonable. See id. at 190. Coppola submits that the district court

committed such error here in determining the loss attributable to his subpredicate crimes

of extortion and fraud. He further complains that the district court misapplied U.S.S.G.

§ 5G1.3 in ordering his racketeering sentence to run consecutively to his undischarged 42-

month sentence for conspiring to harbor a fugitive. We address each argument in turn.

a. Loss Calculation

While Coppola approves the district court’s refusal to rely on salary aggregation to

calculate the loss attributable to the extortion and fraud subpredicates, he contends that the

district court engaged in impermissible speculation in finding that these subpredicate

crimes caused a loss of at least $2.5 million in monies paid to the Genovese family. See

U.S.S.G. § 2B1.1(b)(1)(J) (triggering eighteen-point enhancement in fraud offense level);

52
id. § 2B3.2(b)(2) (referencing § 2B3.1(b)(7)(G)) (triggering six-point enhancement in

extortion offense level).23 We disagree.

In determining a loss amount for purposes of Guidelines calculation, a district

court’s findings must be grounded in the evidence and not derive from mere speculation.

See United States v. Deutsch, 987 F.2d 878, 886 (2d Cir. 1993). Such evidence need not,

however, establish loss with absolute precision; it need only permit the district court to

make “a reasonable estimate of the loss” given the available information. U.S.S.G.

§ 2B1.1 cmt. n.3(C); see United States v. Markle, 628 F.3d 58, 64 (2d Cir. 2010) (applying

same rule to U.S.S.G. §§ 2B3.1 and 2B3.2). The record here showed that the Genovese

family controlled Local 1235 for more than thirty years. Thus, to cause a loss of more

than $2.5 million over thirty years, the Genovese family would have had to extort

approximately $84,000 annually from Local 1235. Record evidence convincingly

demonstrates that it was more likely than not that the Genovese family obtained that

amount. See United States v. Hertular, 562 F.3d 433, 447 (2d Cir. 2009) (concluding that

preponderance finding satisfied if fact’s existence was “more likely than not”).

23
Coppola does not contend that revenues were an inappropriate measure of loss.
U.S.S.G. § 2B3.2 cmt. n.5 specifically defines extortion loss to mean “any demand paid plus
any consequential loss from the offense.” As to fraud, U.S.S.G. § 2B1.1 cmt. n.3(B)
provides for a court to “use the gain that resulted from the offense as an alternative measure
of loss only if there is a loss but it reasonably cannot be determined,” which is this case.
Thus, we consider only Coppola’s complaint that the district court’s determination of
realized revenues from the subpredicate crimes was entirely speculative.
53
 As the district court noted, Coppola alone obtained sufficient amounts from his

control of Local 1235 to support himself and his wife comfortably for eleven years while

he was a fugitive, maintaining two residences, one in San Francisco and the other on

Manhattan’s Upper West Side. Common sense instructs that such a lifestyle would require

revenues of no less than $50,000-$100,000 per year.24 Further, as the district court noted,

Coppola was hardly the only Genovese associate to receive revenues corruptly generated

from Local 1235. Over the years, Local 1235 monies were also paid to Fiumara and

others. No precise figures are necessary to conclude that the total payments from Local

1235 to multiple enterprise members would easily have exceeded $84,000 annually and

$2.5 million over the course of thirty years.

24
While it is more likely than not that the monies channeled to Coppola by Genovese
confederates during his years as a fugitive derived from Local 1235, especially given
evidence that Coppola extorted that entity right up until his arrest, even if the monies might
have derived from other enterprise activities, the district court would properly have included
such revenues in its calculation of loss attributable to the racketeering crimes of conviction.
See U.S.S.G. § 1B1.3(a)(1). In focusing on revenues more likely than not derived from
Local 1235, the district court was simply demonstrating how conservative a $2.5 million loss
calculation was in this case.
54
 Indeed, the conclusion is reinforced by other record evidence.25 That evidence

showed that the Genovese family demanded several thousand dollars a month in tribute

payments from each waterfront entity it controlled, and much larger Christmas payments,

reaching as high as $90,000–$100,000, amounts that over thirty years easily would exceed

$2.5 million. See U.S.S.G. § 2B1.1 cmt. n.3(C)(vi) (identifying “revenues generated by

similar operations” as factor appropriately considered in estimating loss). Coppola’s

March 6, 2007 conversation with Edward Aulisi indicated that such payments increased

significantly over the course of the conspiracy. See Gov’t Ex. Tr-CD-7 (T6) at 6 (noting

that collections had “almost doubled”). Further, record evidence showed that a Genovese-

controlled union paid Larry Ricci $45,000 a year for doing nothing but putting “his feet on

the desk,” unless Fiumara “called him for something.” Trial Tr. at 150.26 Whether the

union in question was Local 1235 or some other ILA local—a point on which the record is

not clear—evidence that the Fiumara crew could compel a local to pay a single crew

member $45,000 a year in the 1970s strongly supports the inference that the total annual
25
While the district court did not specifically reference other evidence in estimating
loss, we assume its familiarity with the record of a lengthy trial over which it presided, just
as it was entitled to assume the parties’ familiarity with this record. Thus, to the extent that
on appellate review, we can identify evidence in the record supporting the challenged loss
estimate with respect to Local 1235, we easily reject the argument that the district court could
only have relied on speculation to make this Guidelines finding. See United States v. Cavera,
550 F.3d at 211 (holding that factual finding at sentencing will not be deemed clearly
erroneous unless it is “without foundation” (internal quotation marks omitted)).
26
The creation of such a “no-work job” channeled union money directly into the hands
of a Genovese family member and, thus, constitutes extortion independent of the salary
theory relied on by the government with respect to union presidents.
55
amount the Genovese family demanded and obtained from any local, including Local

1235, was easily double, resulting in a loss over thirty years of more than $2.5 million.

See U.S.S.G. § 2B1.1 cmt. n.3(C)(vi). Indeed, the fact that a single Genovese member,

Barone, testified that he personally made “millions” as a result of the enterprise’s corrupt

control of the waterfront, Trial Tr. at 1103, further supports an inference that, over thirty

years, an individual victim such as Local 1235 would have made total extortion payments

to the enterprise of over $2.5 million.

No further inquiry into loss could possibly have inured to Coppola’s benefit. As

the district court recognized, the record convincingly established his membership in a

conspiracy to gain corrupt control not simply over Local 1235, but over a number of

waterfront unions and businesses. Thus, any more detailed inquiry would only have

multiplied the loss amount several times over. See United States v. Leslie, 658 F.3d 140,

145 (2d Cir. 2011) (calculating loss by reference to entire conspiracy); see also U.S.S.G.

§ 1B1.3(a)(1)(B) (holding defendant responsible for “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken criminal activity”).27

The reason the district court did not undertake such an inquiry is apparent: it had

determined that, in any event, the racketeering Guidelines were “woefully insufficient . . .

27
Because the district court limited its loss calculation to revenues the Genovese
family realized from its control of Local 1235, and because Coppola points to no evidence
that losses to that entity informed his pre-Guidelines sentence in United States v. Clemente,
494 F. Supp. 1310 (S.D.N.Y. 1980), aff’d, 640 F.2d 1069 (2d Cir. 1981), Coppola’s claim
of procedural error in “double-counting” is plainly meritless.
56
to capture the essence” of Coppola’s crime. Sentencing Tr. at 34. As indicated in the

Background section of this opinion, see supra Part I.C, the district court thoroughly and

persuasively explained its reasons for reaching this conclusion, which are completely

distinct from any loss calculation in this case. Thus, even if we were to identify

procedural error in that calculation—which we do not—we could confidently conclude

that it was harmless because the district court would certainly impose the challenged

sentence in any event.28

Accordingly, we reject the claim of procedural error in calculating loss as without

merit.29
28
We do not, of course, lightly assume that the elimination of unwarranted
enhancements from a Guidelines calculation would not affect the sentence imposed so as to
support a finding of harmless error. See United States v. Feldman, 647 F.3d 450, 458–60 (2d
Cir. 2011). Where we identify ambiguity, we will order remand. See id. at 460. But just as
a single unambiguous statement can permit us to identify a Guidelines error as harmless in
some circumstances, see United States v. Jass, 569 F.3d at 68, we can draw the same
conclusion from a careful review of the totality of a sentencing record.
29
No different conclusion is warranted by the fact that the offense level for Coppola’s
racketeering crimes is dictated by the fraud subpredicate, rather than the extortion
subpredicates on which we relied to affirm the conviction. See supra Part II.A.
As earlier noted, the fraud subpredicate was based on both a theory of intangible
property—honest services fraud—that the government does not defend in light of Skilling
v. United States, 130 S. Ct. 2896, and a theory of tangible property in the form of both union
president salaries and tribute payments. Because the jury returned a general verdict as to
tangible property fraud, Coppola’s validity challenge to the salary theory, if successful, might
undermine reliance on the fraud subpredicate as support for Racketeering Act One. See
Yates v. United States, 354 U.S. at 312.
No such concern applies to the sentencing, however, under the circumstances of this
case. The law does not require that relevant conduct support a conviction to be factored into
a Guidelines calculation; even acquitted conduct may be considered if supported by a
preponderance of the evidence. See United States v. Vaughn, 430 F.3d at 526. Thus, as long
57
 b. Imposition of a Consecutive Sentence

We similarly identify no merit in Coppola’s claim of procedural error under

U.S.S.G. § 5G1.3 in the district court’s direction that the sixteen-year sentence imposed

for his racketeering crimes in this case run consecutively to, rather than concurrently with,

the 42-month sentence that Coppola was then serving on the single count of conspiracy to

harbor a fugitive imposed in United States v. Coppola, 07-cr-225 (DLI).

Section 5G1.3 guides the imposition of sentences where a defendant is subject to an

undischarged term of imprisonment “with an eye toward having such punishments

as (1) the district court’s reliance on the fraud Guideline was based on the tribute payment
theory—whose validity Coppola does not dispute—and (2) a preponderance of the evidence
supports that theory, there would be no Guidelines calculation error in relying on fraud rather
than extortion to determine the offense level.
The first question is answered by the district court’s loss calculation, which made
plain that the court found that the Genovese family extracted tribute from Local 1235.
Indeed, the district court specifically declined to rely on the aggregation of salaries.
As to the second question, a preponderance of the evidence supports the district
court’s finding that Coppola deprived Local 1235 members of such revenues, for the reasons
enumerated supra Part II.A.2.a. Although the district court at sentencing did not discuss
Coppola’s use of fraudulent means to procure the revenues, the jury necessarily found that
element satisfied by its verdict, particularly as there is no difference between the fraudulent
means used to procure either form of tangible property in this case. The sufficiency of that
finding is supported by evidence that the payments were made in violation of the presidents’
LMRDA duties to union members and by such concealment efforts as the use of coded
conversations and surrogates to assure Coppola—an organized crime member then under a
court order prohibiting him from having any dealings with unions—that the Genovese
family’s extortion demands would continue to be satisfied.
In sum, any concern under Yates v. United States, 354 U.S. at 312, that the general
jury verdict finding tangible wire fraud may have rested not on the valid tribute payment
theory but on the potentially invalid salary theory has been satisfactorily eliminated from the
sentencing proceeding by the district court’s findings that Coppola fraudulently deprived
Local 1235 members of tangible property through the collection of tribute.
58
approximate the total penalty that would have been imposed had . . . all of the offenses

been prosecuted in a single proceeding.” Witte v. United States, 515 U.S. 389, 404–05

(1995). Toward that end, § 5G1.3(b) provides for a concurrent sentence where the prior

offense is relevant conduct to the instant offense and “was the basis for an increase in the

offense level for the instant offense.” Coppola’s harboring conviction may have been

relevant conduct to Racketeering Act Three’s fraudulent document offense, but the

harboring offense did not increase the offense level for that predicate, which in any event

had no impact on Coppola’s total offense level for the crimes of conviction. That offense

level was determined by the subpredicates of Racketeering Act One. Where § 5G1.3(b)

does not apply, the Guidelines leave it entirely to the district court’s discretion whether to

impose sentence “concurrently, partially concurrently, or consecutively to the prior

undischarged term of imprisonment to achieve a reasonable punishment for the instant

offense,” U.S.S.G. § 5G1.3(c), consistent with the factors outlined in 18 U.S.C. § 3553(a),

see U.S.S.G. § 5G1.3 cmt. n.3(A)(i).30

Coppola complains that, even if the district court could have imposed a consecutive

sentence, it committed procedural error by failing adequately to explain its reasons for

doing so. Our precedent does not support this argument. Even when we understood the

Guidelines to be mandatory, we had ruled that “nothing in the language of [§ 5G1.3(c)] or

its Commentary requires district courts to make specific findings with respect to any or all
30
To the extent the Guidelines are advisory, the district court would have the
discretion not to follow § 5G1.3(b) even where applicable.
59
of the factors listed in the Commentary or § 3553(a).” United States v. Brennan, 395 F.3d

59, 69 (2d Cir. 2005) (internal quotation marks and alterations omitted). More recently,

we have ruled with respect to sentencing generally that, “[i]n the absence of record

evidence suggesting otherwise, we presume that the district court has faithfully discharged

its duty to consider the § 3553(a) factors.” United States v. Payne, 591 F.3d at 71 (internal

quotation marks omitted).

Nothing in the record suggests that the district court failed to consider the § 3553(a)

factors here, either in its identification of a sixteen-year prison term for the racketeering

crimes at issue or in its decision to run that sentence consecutively to the undischarged

sentence for harboring. Rather, such consideration is evident in the district court’s

explanation for imposing a non-Guidelines sentence, an explanation that discussed the

seriousness of the criminal conduct, the need for general and specific deterrence, favorable

mitigating factors, and inadequacies in the racketeering Guidelines. See 18 U.S.C.

§ 3553(a). The district court made clear that it selected a sixteen-year sentence—as

opposed to a still higher term—precisely because Coppola would also serve 42 months for

harboring conduct related to Racketeering Act Three. In sum, the record indicates that the

district court committed no procedural error in imposing its sentence consecutively in

order to approximate the total non-Guidelines sentence that it would have imposed had all

the offenses been prosecuted in a single proceeding. See Witte v. United States, 515 U.S.

at 404–05.

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 2. Substantive Reasonableness

Coppola contends that a sixteen-year sentence—particularly when run

consecutively to a 42-month sentence—is substantively unreasonable given his age, his

health, and the lesser sentences imposed on others convicted of participating in organized

crime efforts to maintain criminal control over the New York–New Jersey waterfront.

Where no procedural error has been committed, our review of a claim that a non-

Guidelines sentence is substantively unreasonable is narrow. As the Supreme Court has

instructed, “it is not for the Court of Appeals to decide de novo whether the justification

for a variance is sufficient or the sentence reasonable.” Gall v. United States, 552 U.S. 38,

59 (2007); see United States v. Cavera, 550 F.3d at 189. Rather, we “must give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” Gall v. United States, 552 U.S. at 51. We will “set aside a district

court’s substantive determination only in exceptional cases where the trial court’s decision

cannot be located within the range of permissible decisions.” United States v. Cavera, 550

F.3d at 189 (emphasis in original; internal quotation marks omitted); see United States v.

Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing that in “great majority of cases, a

range of sentences—frequently extending well beyond the narrow ranges prescribed by the

Guidelines—must be considered reasonable”). This case is no exception.

The record makes clear that the district court considered mitigating factors such as

Coppola’s age—63 at the time of sentencing—and various health conditions, but

61
concluded that they were outweighed by the seriousness of his criminal conduct, which

reflected “a lifetime occupation as part of an organization” whose power “derive[d] from a

well grounded fear that if you cross a member of that organization you will be killed.”

Sentencing Tr. at 32–33. The district court pointedly told Coppola that it refused to let

him “hide behind” mitigating factors:

You knew full well when you committed yourself to a life of crime that if
and when you finally got caught you would be held accountable and you
should be held accountable. That’s what I intend to do here today is hold
you accountable for the choices you made to be a part of that organization
and to dedicate yourself to a life of crime.

Id. at 33–34. Coppola may disagree with how the court weighed the seriousness of his

criminal conduct as against his age and health, but he can hardly show that his criminal

conduct was not sufficiently severe to bear the weight assigned it under the totality of the

circumstances. See United States v. Cavera, 550 F.3d at 191 (stating that appellate courts

“do not consider what weight we would ourselves have given a particular factor,” but

decide only whether the factor “can bear the weight assigned” by the district court).

Nor can Coppola demonstrate that his sentence is substantively unreasonable by

conclusorily complaining of a sentencing disparity with his chosen comparators on appeal,

Primo Cassarino and Anthony Ciccone. See 18 U.S.C. § 3553(a)(6).31 While both men

were convicted for racketeering and other crimes related to the Gambino family’s control

over parts of the New York waterfront, that is not enough by itself to compel a conclusion
31
Coppola points us to no indication in the record that he presented the examples of
Cassarino and Ciccone to the district court.
62
that they were similarly situated to Coppola in the many respects that can inform a

sentence. See United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006) (rejecting

disparity challenge where there was no showing that defendants were “similarly situated”).

Moreover, “even if § 3553(a)(6) were a lawful basis for leniency here, . . . it is only one of

several factors that must be weighted and balanced” and how the factor is weighed “is a

matter firmly committed to the discretion of the sentencing judge.” Id.

Accordingly, we conclude that the challenged sentence is not unreasonable so as to

warrant vacatur and resentencing.

III. Conclusion

To summarize, we conclude as follows:

1. Racketeering Act One states valid subpredicate offenses under the Hobbs Act

for substantive and conspiratorial extortion of intangible rights under the LMRDA, 29

U.S.C. § 501(a), see United States v. Gotti, 459 F.3d at 325, and the jury’s finding that

such offenses were proved is supported by sufficient evidence. The validity of these

Hobbs Act offenses is not undermined by Skilling v. United States, 130 S. Ct. 2896.

2. The evidence was sufficient to permit a reasonable jury to find the requisite

pattern of racketeering proved.

3. The district court’s admission of challenged evidence did not exceed its

discretion under Fed. R. Evid. 401, 403, or 801(d)(2)(E).

4. Various challenges to the district court’s jury instructions are without merit.

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 5. The challenged sentence is reasonable both as a matter of procedure and

substance.

The judgment of the district court is hereby AFFIRMED.

64