United States v. Albertelli

United States Court of Appeals
For the First Circuit

No. 09-2213

UNITED STATES OF AMERICA,

Appellee,

v.

GISELE ALBERTELLI,

Defendant, Appellant.
____________________

No. 09-2478

UNITED STATES OF AMERICA,

Appellee,

v.

ARTHUR GIANELLI,

Defendant, Appellant.

No. 09-2606

UNITED STATES OF AMERICA,

Appellee,

v.

FRANK IACABONI,

Defendant, Appellant.
____________________
10-1214

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS ALBERTELLI, a/k/a Fish,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
Stahl, Circuit Judges.

Patricia A. DeJuneas, by appointment of the court, with whom
Robert L. Sheketoff, by appointment of the court, was on brief for
appellant Arthur Gianelli.
Alan P. Caplan for appellant Frank Iacaboni.
Richard B. Klibaner, by appointment of the court, with whom
Klibaner & Sabino was on brief for appellant Dennis Albertelli.
Brian J. Kelly, by appointment of the court, for appellant
Gisele Albertelli.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.

June 29, 2012

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 BOUDIN, Circuit Judge. A federal jury convicted Arthur

Gianelli, Dennis Albertelli ("Albertelli"), Frank Iacaboni, and

Albertelli's wife Gisele ("Gisele") of racketeering, racketeering

conspiracy or both, and a host of other federal crimes, incident to

their years-long participation in a criminal organization

responsible for a large illegal gambling operation. Gianelli

headed the group, with Albertelli serving as the second-in-command.

The charged criminal conduct involved four operations:

the first three were different flavors of continuing illegal

gambling businesses--sports betting, "football cards," and video

poker--that spawned a variety of criminal support activities such

as money laundering, usurious lending, and extortionate collection

of credit; the fourth comprised a single venture by the three male

defendants (but excluding Gisele) seeking to burn down a business

in North Reading, Massachusetts.

The indictment used at trial, as narrowed by dropping

various counts and other defendants, contained several hundred

counts against the remaining four already named; but most involved

individual transactions designated as money laundering. The

remaining 25 or so charged racketeering conspiracy, racketeering,

illegal gambling business, transmission of wagering information,

money laundering conspiracy, interstate travel in aid of

racketeering, extortionate collection of credit, extortionate

collection of credit conspiracy, and five variations of arson and

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extortion crime directed to the planned burning down of the North

Reading business.1

Before trial, the defendants jointly moved to suppress

evidence obtained through a series of wiretaps, arguing in relevant

part that the application for the initial wiretap--upon which all

subsequent interceptions were based--was not properly authorized,

did not show the wiretap was necessary, and was not supported by

probable cause. The district court, after hearing argument and

reviewing the materials submitted, denied the motion in a published

opinion. United States v. Gianelli, 585 F. Supp. 2d 150 (D. Mass.

2008).

There followed a trial that stretched over several weeks

and included extensive testimony and wiretap evidence directed to

the operations of the group, individual transactions, and the roles

of the individual defendants. Ultimately the jury convicted all

four defendants of nearly all of the charges, acquitting each

defendant on between one and four counts. Each was convicted of

racketeering, racketeering conspiracy or both.

The defendants were later sentenced to terms of

imprisonment as follows: Gianelli, 271 months; Albertelli, 216

months; Iacaboni, 183 months; and Gisele, 21 months. Each of the

1
An addendum to this decision contains tables that identify
each charged count by name and statutory citation; indicate which
defendant was charged on which counts; specify the counts on which
each defendant was acquitted; and identify the sentence received by
each defendant.

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defendants now appeals, but with a few exceptions noted below the

issues raised on appeal are common to all of the defendants. The

standard of review varies by argument and whether or not the

argument was preserved in the district court.

Wiretaps. Organized crime cases depend heavily on

wiretaps. For some of the activities--gambling, drug sales, money

lending--there may be no "victims" to complain. Written records

are often minimal. And especially where the organization is large

or affiliated with a larger criminal enterprise, co-conspirators

may be fearful about turning state's evidence. So surveillance

and wire taps are principal tools of investigation, and the latter

require warrants.

Although a warrant issued on probable cause is enough for

the police to enter and search a home, Title III of the Omnibus

Crime Control and Safe Streets Act of 1968 ("Title III") (codified

as amended at 18 U.S.C. §§ 2510 et seq.) imposes even more

stringent requirements for wiretaps and also requires compliance

with state law, id. § 2516(2), which in Massachusetts means Mass.

Gen. Laws ch. 272, § 99(F)(1). Defendants argue that the initial

wiretap application was not properly authorized under section

99(F)(1), as interpreted by Massachusetts' Supreme Judicial Court

in Commonwealth v. Vitello, 327 N.E.2d 819 (Mass. 1975).

Vitello held that an assistant district attorney may not

seek a wiretap on his own authority; rather, the district attorney

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must "review and authorize" such an application in writing. Id. at

825, 838-39. However, so long as the matter is subject to his

review, the district attorney need not sign the application but may

authorize a subordinate attorney to make the application.

Commonwealth v. D'Amour, 704 N.E.2d 1166, 1175 (Mass. 1999).

In this case, the Essex County District Attorney by two

letters--one to three named assistant district attorneys ("ADAs")

and the other to a Superior Court judge--authorized the three

subordinates to apply to intercept calls involving Albertelli,

Gianelli and another named associate occurring over three

designated telephone lines; both letters were attached to the

actual wiretap application signed by the named ADAs; and the

district attorney's letter said that the application and any

renewals would be reviewed by the district attorney or a designee.

In addition, a separate affidavit by the district

attorney, offered in response to the motion to suppress in this

case, attested that he had in fact "reviewed draft copies of an

affidavit setting forth the probable cause and an application"

prior to issuing the authorizations, and was satisfied that they

complied with the relevant statutes. He also stated that he

"personally reviewed every renewal application and supporting

affidavit." These documents, the district court held, satisfied

section 99(F)(1).

Defendants argue they do not, emphasizing that in D'Amour

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the specific crimes were also identified in the letter, which was

dated the same day as the application, whereas in this case the

application was dated one day after the authorizing letter. The

one day delay makes it possible that the district attorney read

only a draft rather than the final application; but the district

attorney's obligation was to superintend and take responsibility

for the wiretap application, not to act as the final proofreader.

See D'Amour, 704 N.E.2d at 734-35.

Citing United States v. Smith, 726 F.2d 852, 856 (1st

Cir. 1984) (en banc), the defendants say that the district court

should have held an evidentiary hearing on the extent of his

oversight; but our remand in Smith was because "the district court

did not make a particularistic inquiry" into whether the

application was authorized. Id. at 860. Here, the district court

did make such an inquiry and the only material dispute was not

about what happened but whether the district attorney's version of

what he did was sufficient oversight.

Nor do we agree that the wiretap application failed Title

III's required showing that "other investigative procedures have

been tried and failed or why they reasonably appear to be unlikely

to succeed if tried or to be too dangerous." 18 U.S.C.

§ 2518(1)(c), (3)(c). Here, the warrant application was

accompanied by a detailed 74-page affidavit by Massachusetts State

Police Trooper Nunzio Orlando describing the investigation and

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explaining in detail the limits on what could be found without

wiretaps and why individual alternatives were ineffective.

Defendants point out that these alternative techniques

had allowed the agents to collect considerable information, as is

evident from Orlando's affidavit, but the "partial success of the

investigation did not mean that there was nothing more to be done."

United States v. Cao, 471 F.3d 1, 3 (1st Cir. 2006) (emphasis

omitted). For example, the affidavit explained that some of the

participants in the conspiracy had not yet been identified, and

that precautions taken by the known conspirators made the wiretap

evidence essential to continued gathering of necessary evidence.

Defendants also complain that the affidavit contains a

good deal of boilerplate, but so do judicial decisions, and for the

same reason that in similar situations--here, the conduct of a

bookmaking operation--much remains unchanged. The affidavit,

however, included ample detail unique to this investigation,

including, for example, extensive accounts of efforts at and

limitations of using confidential informants, physical

surveillance, and telephone record analysis.

Title III permits wiretaps to investigate "gambling"

offenses generally, while the state statute--whose conditions must

also be met--authorizes them for only one gambling offense: keeping

or being in a place for the registering of bets. Mass. Gen. Laws

ch. 271, § 17. Gianelli used an off-shore service reached by an

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800 number to allow his bettors to place wagers, but the affidavit

described conduct in Massachusetts of related activities such as

communicating with local agents, settling disputes, and collecting

payments from local bettors.

Commonwealth v. Boyle, 189 N.E.2d 844, 845-46 (Mass.

1963), held it enough that the defendant possessed "memos between

the bookmaker or office and the agent or writer" of bets

registered. Here, satisfying Boyle, the affidavit reported, based

on confidential informants, that Albertelli and Ramasci retrieved

records in Massachusetts indicating their customers' gambling

balances and specific wagers from the previous week. Accord

Commonwealth v. Demogenes, 211 N.E.2d 226, 227 (Mass. 1965)

(section 17 covers "papers containing records of bets").

The defendants claim that the phrase "apparatus . . . for

registering bets" requires that the apparatus be used in the

process of recording a bet--as opposed to some other facet of the

gambling business--and that registration of bets in Massachusetts

must occur to violate the statute. The case law refutes that claim

and the link here with Massachusetts was sufficient. Id.; Boyle,

189 N.E.2d at 845-46; Commonwealth v. Carlson, 120 N.E.2d 384, 385

(Mass. 1954).

There was probable cause to believe the three wiretap

targets were violating section 17 through their sports betting

business, so we can bypass the defendants' claims that probable

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cause was lacking as to their football card and video poker

activities; probable cause for any one such crime was sufficient.

In addition, those arguments were not made in the motion to

suppress and have been forfeited. Fed. R. Crim. P. 12(e),

12(b)(3); United States v. Walker, 665 F.3d 212, 228 (1st Cir.

2011).

Agent Kelsch's testimony. The defendants say that the

court erred in permitting ATF Special Agent Kelsch to testify

insofar as he sought to interpret for the jury conversations

intercepted over the wiretaps. Similar objections were made to

testimony by other agents but those made to Kelsch's testimony are

representative and, at least as to some, better preserved. Review

of preserved objections is for abuse of discretion, and the others

for plain error. United States v. Weekes, 611 F.3d 68, 70 (1st

Cir. 2010).

The focus of the disputed prosecution testimony concerned

the charges relating to the effort to burn down a building in North

Reading, a plot of which investigators learned initially through

the wiretaps. In brief, Gianelli had partnered with Mark Colangelo

and Edward Fitzsimons to open a large sports bar in Lynnfield; the

venture ended in litigation between the partners; and (so the

government sought to show) Gianelli had sought to bring pressure on

Colangelo and Fitzsimons by burning down a building in North

Reading housing a bar and a pizza joint that provided them revenue.

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 According to testimony from Deeb Homsi, a former Hells

Angel gang member and longtime friend of Albertelli, Albertelli

asked Homsi to burn down the building, explaining the coercive

purpose of the crime; and he gave Homsi the address and advice on

starting the fire. Homsi then recruited Michael McCormack, who in

turn recruited another Hells Angels member, Sean Slater, for

assistance in setting the fire. Gianelli checked in with

Albertelli regularly for updates and later pressed him to finish

the job.

Albertelli had separate discussions with Iacaboni about

the arson project; Iacaboni secured a diagram of the building from

Albertelli, and the next day told Albertelli that he had recruited

his own arsonist and discussed with that man specific plans for

setting the building ablaze; but, the evidence indicated, the

(unnamed) would-be torch man backed out when Iacaboni told him no

key was available for the target. Completion of the task reverted

to Homsi's recruits.

After one failed attempt, McCormack and Slater tried

again on November 13, 2003, and got a gasoline-filled container

ignited at the site, but firemen extinguished the fire, having been

alerted by agents who were staked out nearby after intercepting

telephone calls about the plan. Slater and McCormack were arrested

nearby. Albertelli then provided $10,000 to bail out Slater.

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Later, Gianelli called Albertelli to express concern that McCormack

might be cooperating with the government.

In advance of Kelsch's testimony, the defense sought to

bar him from testifying as to the meaning of intercepted

conversations which, as is not uncommon in conspiracies, were

cryptic. The judge refused to bar the testimony outright:

It is my inclination at this time to allow Mr.
Kelsch to testify with respect to specific
matters that may be within his expertise as
someone who knows about arson and arson
investigations. But I am not going to allow
more general questions as to what happened in
that conversation. If the questions are
directed specifically to specific responses or
portions of the conversations and they related
to matters that I believe are not entirely
clear to lay persons, I will allow such
testimony. But if they don't, I will sustain
objections. And, specifically, I would expect
to sustain an objection to -- after we've
heard a conversation, if the question is, What
is happening in that conversation, that is an
objectionable question. . . . But if they are
pinpointed to matters . . . that leaves a
layperson with some ambiguity, I would allow
such a question. But the more generalized
questions I would not allow.

The judge several times sustained objections to questions

that appeared to call for unduly speculative or generalized

interpretations, but a good many interpretations were allowed and

some representative examples follow:

Excerpts from defendants' Kelsch's interpretations
conversations

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Gianelli: "What, ah, you talk Referring to Homsi, whose
to that kid?" brother owned a motorcycle
Albertelli: "I was with him repair shop.
the next morning, and asked if
he wanted to take a ride, and
he said he had to take care of
the shop."
Albertelli: "Just in case, you "To make sure that they have
know, we want to go for a ride an alibi in place."
or something."
Gianelli: "Our way might be Referring to setting the fire.
the only right way."
Albertelli: "I didn't want to "He's trying to conceal any
make it look like I knew knowledge he had about by whom
anything." and how the fire was set."
Gianelli: "How's the pizza?" Referring to Romeo's Pizza
restaurant.
Gianelli: "This kid probably "He's placing blame on Mark
tried to burn the fuckin' Colangelo. . . . They're
place down. That's what I'm strategizing about what their
thinking." story would be."
Albertelli: "It was him?"
Gianelli: "Anyhow, that's the
story."
Gianelli: "Larry Murray came "This kid" refers to
over last night, and this kid, McCormack.
I don't know, he might be
talking a little bit."
Albertelli: "Not those guys, "He means that either Mr.
but someone else that I had Albertelli and/or Mr. Gianelli
talked about with it earlier." have spoken to at least three
Gianelli: "So we had three or or four separate individuals
four fucking parties going or groups to set the fire."
here."
Gianelli: "Just make sure it's Referring to the fact that the
right." arson should be done
correctly.

Police officers commonly help interpret conversations by

translating jargon common among criminals, either as experts, Fed.

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R. Evid. 702-703, or as lay witnesses offering "opinion" testimony

"helpful [to the jury in] . . . determining a fact in issue," Fed.

R. Evid. 701. Such interpretations give the jury the benefit of an

independent body of specialized knowledge. See Fed. R. Evid. 702

advisory committee note; Kumho Tire Co. v. Carmichael, 526 U.S.

137, 150 (1999) (drug jargon expertise); 1 Dix et al., McCormick on

Evidence § 13, at 78 (6th ed. 2006); 4 Weinstein & Berger,

Weinstein's Federal Evidence § 702.04[1][c] (2d ed. 2006).

But a number of Kelsch's disputed interpretations were

peculiar to these defendants and depended largely on Kelsch's

immersion in the details of this investigation. Although

linguistically possible, calling such testimony "expert opinion"

would lend undue credibility to it and increase the risk of

reliance on information not properly before the jury as data on

which "experts in the particular field would reasonably rely," Fed.

R. Evid. 703, even though the "field" is merely the facts of the

case.

While these dangers are lessened by treating Kelsch's

interpretations as lay witness opinions, the interpretations do not

reflect a traditional reason for allowing lay opinions--that many

observations people make "every day in ordinary life cannot be

adequately described in words confined to descriptions of

observable phenomena." Weinstein & Berger, supra, § 701.02; see

also Fed. R. Evid. 701 advisory committee note. Still, Kelsch's

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testimony undoubtedly had a potential to help the jury, which is

all Rule 701 requires for lay opinion.

Kelsch had investigated Gianelli's operations for years,

had became familiar with the voices of the major participants, had

interviewed witnesses related to the investigation, and had

reviewed materials seized from the defendants. That his

understanding of the oblique statements in the wiretaps might be

"helpful" to the jury is an understatement; some of the defendants'

wiretapped statements could be entirely unintelligible to the jury

absent some context-based interpretation.

For years on end, the defendants deliberately spoke in

unintelligible terms, surely to hamper prosecution of their crimes.

True, the traditional division of witness examination and counsel's

argument would call for the government to shower the jury with

evidence of those oblique exchanges without any meaningful way of

explaining it before the closing arguments of a multi-week (or

multi-month) trial. And in some trials there might be a very large

number of wiretaps introduced.

So, while not the most traditional lay opinion, Kelsch's

testimony formally meets the requirements of Rule 701, being

"rationally based on [his] perception" of the conversations, United

States v. Santiago, 560 F.3d 62, 66 (1st Cir. 2009); "helpful" in

the Rule 701 sense broadly understood; and yet not based on expert

knowledge within the meaning of Rule 702. The problems, such as

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they are, with such testimony turn rather on dangers that have been

explored in various contexts in other cases:2

-that the testimony may effectively
smuggle in inadmissible evidence (e.g.,
hearsay not within some exception and perhaps
inadmissible under the Confrontation Clause);

-that the witness may be drawing
inferences that counsel could do but with
advantages as to timing, repetition and the
imprimatur of testifying as a law enforcement
officer;

-that the witness may usurp the jury's
function by effectively testifying as to guilt
rather than merely providing building blocks
for the jury to draw its own conclusion;

-that the witness may be unable to
point to any rational basis for the
interpretation offered or be doing nothing
more than speculating; and

-that the witness may act as a summary
witness without meeting the usual
requirements.

These dangers, which are present in scenarios other than

interpreting shielded or oblique language, vary (both in degree and

kind) with the facts--as do the need for the testimony and the

extent to which the witness' unique experience permits him to be

helpful. There are also available safeguards including supervision

by the judge, cautionary instructions, and above all cross-

2
E.g., United States v. York, 572 F.3d 415, 425-26 (7th Cir.
2009); United States v. Flores-de-Jesús, 569 F.3d 8, 20-21 (1st
Cir. 2009); United States v. Freeman, 498 F.3d 893, 902-05 (9th
Cir. 2007); United States v. Dukagjini, 326 F.3d 45, 53-59 (2d Cir.
2002).

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examination, which is more helpful as to some dangers than others.

Where the witness can explain the basis for his specific

interpretations, decisions in other circuits have upheld admission

of such testimony by law enforcement officers,3 especially in

organized crime and terrorism cases.

In this case, the need for interpretation was clear, and

there is no indication that the potential dangers harmfully

manifested themselves. The district judge's in limine ruling

(quoted above) demonstrates that he gave the need for the testimony

careful consideration and ruled that it must be limited to

conversations that were unclear; he also sustained several

objections to questions calling for speculative answers and gave a

cautionary instruction at the end of the trial.

Minimizing another set of dangers, Kelsch said that the

opinions were his own and that he was not purporting to represent

collective knowledge. When pressed by defense counsel for the

bases of his interpretations, Kelsch did not, as the defendants

claim and the Second Circuit condemned in Grinage, rely on broad

appeals to "the totality of the investigation" but instead usually

3
Compare United States v. Jayyousi, 657 F.3d 1085, 1103-04
(11th Cir. 2011), and United States v. El-Mezain, 664 F.3d 467,
513-15 (5th Cir. 2011), and United States v. Rollins, 544 F.3d 820,
831-33 (7th Cir. 2008), with United States v. Grinage, 390 F.3d
746, 749-51 (2d Cir. 2004) (excluding such testimony where the
witness said it rested on knowledge of "the entire investigation").

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pointed to sources of information such as statements from Homsi and

McCormack, other recorded conversations, and surrounding events.

Kelsch did say at the start of his redirect examination

that his opinions drew on all that he learned in the investigation,

and in a single area of questioning Kelsch stated that his opinion

that the arson was motivated by extortion was based on his

familiarity with the overall case. But the interpretations Kelsch

offered were his own, and the wiretaps backed up Kelsch's inference

as to the purpose of the arson. And he was subject to cross-

examination as to basis and possible grounds to impeach his

testimony.

As to specific interpretations of words or phrases,

defense counsel vigorously cross-examined Kelsch regarding their

plausibility and bases, which resulted in concessions that certain

opinions were not derived from his arson expertise, as well as

acknowledgments of alternative interpretations of several ambiguous

statements. Where such alternatives can be offered, the

plausibility of the witness' own position--unlike, say, that of a

medical expert--is readily measured by the jury.

Similarly, defense counsel impeached Kelsch at trial with

a prior statement in a warrant affidavit that the motive was

retaliation for past acts rather than coercion amounting to

extortion; but Kelsch explained that he had prepared the affidavit

only months into his participation in the investigation and without

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the benefit of information from Homsi and McCormack directly

supporting the extortion rationale. And the jury had Homsi's

testimony as well as other evidence to make its judgment.4

The defendants raise similar objections to chunks of

testimony from three other law enforcement witnesses who offered

interpretations similar to Kelsch's for intercepted calls relevant

to the gambling charges, but they forfeit these claims as to two of

the witnesses by citing no specific testimony. Of the remaining

objections, which concern the testimony of State Police Sgt.

Russolillo, only three were preserved at trial (and only these need

be discussed, for the others were not plain error).

The first preserved objection as to Russolillo concerned

the following question and answer:

Q: And toward the middle of Page 2 when Dennis
Albertelli says, "She had 80 bucks going into
the late game." She said, "Well, what's
left," and so on. What's your understanding
of who was being discussed with the "she"?
A: Gisele Albertelli.

The defendants do not claim that the identification of Gisele was

faulty, nor do they attempt to explain why it might have been a

debatable proposition or how the answer was prejudicial. The

4
Homsi testified to statements by Albertelli in soliciting
Homsi's assistance--e.g., "[T]hey had a lot of money tied up in the
[Lynnfield] Big Dog and the guy was holding them back, stalling,
and that was it, they wanted to burn the pizza joint"--and recorded
calls between Gianelli and Albertelli included references to the
arson as "our only hope" and "the only right way" to resolve
problems with Colangelo.

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objection was generic, but to the extent we construe it as raising

the issues discussed above regarding Kelsch's testimony, it fails

for the reasons already set out.

That brings us to the remaining two preserved objections

to Russolillo's testimony, which are of a different character in

that they claim he twice offered forbidden "role-in-the-offense"

testimony in discussing first a letter and then a phone call:

Q: [As to the letter] If those particular
individuals lost, how would Mr. Albertelli
benefit?
A: He benefits from the commission that he has
from the losses
Q: And did you understand Mr. Albertelli's
role in this organization to be more than just
an agent?
A: Yes.
Q: And what did you understand his role in
this organization to be?
A: To be partners.

Q: Towards the end of the [recorded]
conversation, Mr. Gianelli says, "Oh then take
it from him. Take it from him. We're all
right." What is your understanding of the
relationship in this organization, in the
hierarchy, between Mr. Albertelli and Mr.
Gianelli as reflected by that call?
A: Dennis Albertelli couldn't make the
decision on this. He had to refer to his
boss, Arthur Gianelli.

The defendants liken this to testimony condemned in

United States v. Meises, 645 F.3d 5, 14-15 (1st Cir. 2011). There,

the government's first witness was the lead investigator in the

case, and the government opened its case-in-chief by walking the

witness through all of the steps in the investigation, culminating

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in a question to the case agent of his opinion, based on the

totality of the investigative steps described, about the role of

each defendant in the criminal organization. Id. at 14. This, we

held, was improper.

But Meises involved the kind of preview testimony by a

summary witness that is especially troublesome, United States v.

Casas, 356 F.3d 104, 118-20 (1st Cir. 2004), and purports to sum up

(in advance of the evidence) the government's overall case. In

contrast, Russolillo's specialized knowledge of gambling was

unquestioned, his testimony was expressly tied to the implications

of specific pieces of evidence, and it was not used as a

substantive preview. There was no abuse of discretion--let alone

plain error--in permitting his testimony here.

Looking finally to future cases, we think that district

judges faced with interpretive testimony typified by Kelsch's ought

to start, as the trial judge did here, by considering whether the

testimony is meaningfully helpful to the jury, compared to the

traditional device of saving the interpretive inferences for

counsel in closing argument, and whether limitations can

sufficiently mitigate the dangers noted earlier. And, to the

extent possible, such limitations ought to be identified.

Further, the witness should be prepared to explain the

basis for any challenged interpretation and may not say only that

it is based on "the totality of the investigation." Unlike some

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lay opinions (e.g., the car was going "fast"), an interpretation

of a phrase or reference ought to be explicable, and dangers

already adverted to lurk in one that cannot be explained. The

trial judge may need in some cases to take proffers or allow cross-

examination outside the presence of the jury.

Lastly, the basis relied upon for an interpretation must

be one not unduly troubling to the trial judge because of apparent

unreliability, undue prejudice, importation of inadmissible hearsay

or some other circumstance that might make it unsuitable as an

explanation. The variety of concerns and variations in cases makes

it difficult to lay down rules and appropriate for wide discretion

on the part of the trial judge reviewed only for the clearest

abuse.

Attorney-client privilege. A contested issue at trial

was the motive underlying the attempted arson; the government's

case on certain of the counts required proof that the motive, as

charged in the indictment, was to extort control over the Lynnfield

restaurant project from Colangelo and Fitzsimons. The defense

countered by urging that at worst the motive was merely revenge.

The government offered both direct and wiretap evidence pointing to

extortion. See note 4, above. A third line of evidence raised the

attorney-client issue.

Over objection based on privilege, Mark O'Connor, an

attorney and long-time friend of Albertelli, testified about a

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conversation he had with Albertelli about "various strategies that

might be employed to get control" of the Lynnfield restaurant from

the "guys on the other side":

[Albertelli said] [i]f they could cut off
their funds, wouldn't they then fall faster in
a financial house of cards? And I said, Sure,
but how is that going to happen? And Mr.
Albertelli said, Well– . . .--what if there
was a fire at the Big Dog North Reading and
they weren't able to take any income out of
the place?

As O'Connor vehemently discouraged such an effort, Albertelli

inquired, "[H]ow illegal is arson?"

Whether or not O'Connor was acting as Albertelli's lawyer

in the conversation or merely as a friend, Albertelli forfeited the

privilege under the crime-fraud exception which excludes

communications from client to attorney made (1) when the client was

engaged in (or was planning) criminal or fraudulent activity, and

(2) with the intent to facilitate or conceal the criminal or

fraudulent activity. In re Grand Jury Proceedings (Gregory P.

Violette), 183 F.3d 71, 74-76 (1st Cir. 1999).

In some situations, nothing sinister is implied by asking

about the legality of conduct, possible penalties or both; but

Albertelli certainly knew that arson was illegal, and his threshold

question--"If they could cut off their funds . . . "--revealed his

motive for the crime and the intent to facilitate its commission

through his inquiries of O'Connor. Once a plan to commit a crime

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is conceived, disclosing that to an attorney waives the privilege.

Id. at 74-76.

Organized crime references. To support racketeering

conspiracy charges, the government introduced evidence of

Gianelli's association with organized crime and mafia figures

through, for example, "rent" and "tribute" payments, as well as the

use of organized crime figures to collect debts. In closing, the

government argued that the payments were in exchange for freedom to

operate the gambling operations as well as intimidation.

Iacaboni, Albertelli, and Gisele argue on appeal that all

of the evidence of mafia associations was particular to Gianelli

and unfairly prejudicial as to them. But, having failed to object

a trial, these defendants can prevail only by showing not only

error but also a likely effect on the result, United States v.

Olano, 507 U.S. 725, 731-32 (1993), which they cannot do. As it

happens, the jury acquitted two of the three defendants on

racketeering-related charges, bearing out its ability to disregard

any inference of guilt by association. United States v. Flores-

Rivera, 56 F.3d 319, 326 n.2 (1st Cir. 1995).

Sufficiency. Iacaboni also challenges the sufficiency of

the evidence against him on the arson and extortion counts, arguing

that they rely on a conspiracy that was never proved, at least as

to him. The question is whether "any rational factfinder could

have found that the evidence presented at trial, together with all

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reasonable inferences, viewed in the light most favorable to the

government, established each element of the particular offense

beyond a reasonable doubt." United States v. Poulin, 631 F.3d 17,

22 (1st Cir. 2011).

As previously recounted, Albertelli recruited Iacaboni on

Gianelli's behalf to provide an alternative to Homsi's crew;

Iacaboni obtained a diagram of the building and told Albertelli

that he had recruited his own arsonist and discussed with that man

specific plans for setting the building ablaze that same evening.

This is not mere preparation to enter the conspiracy, as Iacaboni

claims, but further along the path from agreement to completion

than many conspiracies.

It was for the jury to determine whether the evidence

showed a single agreement that included Iacaboni, see United States

v. Jones, 674 F.3d 88, 92 (1st Cir. 2012), and the limited success

by Homsi's crew did not remotely amount to a withdrawal by

Iacaboni. United States v. Munoz, 36 F.3d 1229, 1234 (1st Cir.

1994). In short, no error flawed Iacaboni's conviction as to the

arson and extortion counts.

Iacaboni also challenges the sufficiency of the evidence

against him on the gambling counts, arguing that the evidence of

his participation was too thin to support the jury's finding that

he "conduct[ed]" an illegal gambling business within the meaning of

18 U.S.C. § 1955. But the statute "applies even to individuals who

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have no role in managing or controlling the business and who do not

share in its profits," and "proscribes any type or degree of

participation in an illegal gambling business, except participation

as a mere bettor." United States v. Zannino, 895 F.2d 1, 10 (1st

Cir. 1990).

On Count 3, the evidence included a call between

Albertelli and Iacaboni where Albertelli relayed betting lines for

various football games; another call where Iacaboni offered to

bring a large-scale bettor to Albertelli and split the profits

evenly; and testimony from a witness who said she wrote bets "a

couple of times" with Iacaboni. A jury could find that Iacaboni

conducted a gambling operation.

Iacaboni also says that Count 5 essentially charged him

with conducting Albertelli's football card business but that the

evidence showed he and Albertelli had separate football card

businesses, and Iacaboni's was too small to trigger criminal

penalties under section 1955. See 18 U.S.C. § 1955(b)(1)(ii)

(requiring five or more persons who conduct, finance, manage,

supervise, direct, or own the illegal gambling business).

Intercepted calls between Iacaboni and Albertelli showed

that Iacaboni sold his football card operation to Albertelli around

November 2003, with Iacaboni continuing to share in the profits;

and the evidence supported a finding that--in addition to

Albertelli and Iacaboni--Gisele, Randy Albertelli, James Nadeu,

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Micahel Schultzberg, John Onanian, Harold Marderosian, and Alan

Bernstein all conducted that illegal business.

In closing, in connection with a number of the issues but

especially the disputed testimony by Kelsch, we note that the

government had a strong case which it was difficult for the

defendants to counter. The evidence against Iacaboni has already

been described above and much of the evidence against the other two

principal defendants (Gianelli and Albertelli) was from recordings

of their own calls, a number of which were incriminatory without

being overly cryptic.

One witness (Homsi), the intermediary with the arsonists,

testified for the government to describe his conversations with

Albertelli. Gianelli was recorded on various calls inquiring

repeatedly about Homsi's progress and pressing Albertelli to speed

up the arson plans; after the arrests, Gianelli expressed concern

that one the arsonists might be talking. One of the two arsonists

found at the scene (McCormack) also testified for the government.

And Albertelli's discussion with his lawyer friend featured a

telling admission. There is no reason to believe here that

innocent defendants have been convicted.

Affirmed.

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 ADDENDUM

Count # Crime
1 Racketeering conspiracy, 18 U.S.C. § 1962(d)
2 Racketeering, 18 U.S.C. § 1962(c)
3-5 Illegal gambling business, 18 U.S.C. § 1955
6-7 Transmission of wagering information, 18 U.S.C.
§ 1084
8, 184 Money laundering conspiracy, 18 U.S.C. § 1956(h)
9-183, 185- Money laundering, 18 U.S.C. § 1956(a)(1)(A)(I),
236, 273, (B)(I)
278-327
267 Conspiracy to commit arson, 18 U.S.C. § 371
268 Arson, 18 U.S.C. § 844(I)
269 Use of fire/explosive to commit a felony, 18
U.S.C. § 844(h)(1)
270, 274, 276 Conspiracy to commit extortion, 18 U.S.C. § 1951
271, 275, 277 Attempted extortion, 18 U.S.C. § 1951
272 Interstate travel in aid of racketeering, 18
U.S.C. § 1952(a)(3)
328, 330, 332 Conspiracy to commit extortionate collection of
credit, 18 U.S.C. § 894(a)(1)
329, 331, 333 Extortionate collection of credit, 18 U.S.C.
§ 894(a)(1)

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 Defendant Counts Counts Sentence
Charged Acquitted
Gianelli 1-183, 185- 5, 272 271 months
272, 274-323,
328-333
D. Albertelli 1-183, 185- 272 216 months
273, 278-300,
324-327
Iacaboni 1-3, 5, 267- 2 183 months
271
G. Albertelli 1, 2, 5, 184- 185-187, 201 21 months
232

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