2010-08-13 Olivieri Govt's Mot in Limine

8/9/2019 2010-08-13 Olivieri Govt's Mot in Limine

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA :

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JOSEPH OLIVIERI, : S3 08 Cr. 828 (VM)

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Defendant. :

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GOVERNMENTS MOTIONS IN LIMINE WITH RESPECTTO DEFENDANT JOSEPH OLIVIERI

PREET BHARARA

United States AttorneySouthern District of New York

Attorney for the United States

of America

LISA ZORNBERG

MARK LANPHER

Assistant United States Attorneys

- Of Counsel -

Case 1:08-cr-00828-VM Document 194 Filed 08/13/10 Page 1 of 29


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Prior to filing this motion, the Government conferred with defense counsel for Olivieri1

about the evidence in question. Defense counsel was unwilling to consent or stipulate to the

admissibility of any of the subject evidence prior to the due date for this motion. Defense

counsel indicated, however, that he would consider the matter further after the Government filed

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA :

:-v.- :

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JOSEPH OLIVIERI, : S3 08 Cr. 828 (VM)

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Defendant. :

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GOVERNMENTS MOTIONS IN LIMINE WITH RESPECT

TO DEFENDANT JOSEPH OLIVIERI

The Government respectfully submits this motion in limine to apprise the Court

and defense counsel of certain categories evidence that the Government will seek to offer at trial.

As discussed below, the evidence in question is admissible as direct evidence of the charged

offenses, or alternatively, as prior bad act evidence admissible under Rule 404(b) of the Federal

Rules of Criminal Procedure.

These categories of evidence include: (1) evidence that, in 2004, Louis

Moscatiello, Sr., (Moscatiello) was convicted of committing crimes through his membership in

the Genovese Organized Crime Family of La Cosa Nostra (the Genovese Family), including

crimes to defraud the Carpenters Union and other unions; (2) evidence of Olivieris association

with the Genovese Family; and (3) evidence of Olivieris pre-August 2004 payment of

meal/expenses for union officials including co-defendant Michael Forde.1



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its motion. Accordingly, the Government will follow up with defense counsel and advise the

Court if any of the matters raised in this motion have been resolved by the parties.

2

The first two categories of evidence addressed by this motion relate to the perjury

count charged in Count Twenty-Two of the S6 Indictment. In that count, Olivieri is charged with

making false statements at a December 18, 2007 deposition in the Civil RICO case about his

relationship and dealings with Louis Moscatiello, Sr., a now-deceased member of the Genovese

Family, and James Murray, the owner of On Par. (Indictment 85). To convict Olivieri of the

charged perjury, the Government must prove that Olivieri (1) knowingly made (2) one or more

materially false declarations (3) under oath (4) in a proceeding before or ancillary to any court of

the United States. See 18 U.S.C. 1623; Leonard B. Sand, et al., Modern Federal Jury

Instructions - Criminal 48.03. Olivieri does not appear to contest the third or fourth element,

i.e., that his deposition in the Civil RICO case was taken under oath in a proceeding before or

ancillary to a United States court. But the first two elements of the perjury charge are clearly in

dispute, as reflected by Olivieris previously-filed pretrial motions in this case. The first two

categories of proffered evidence are directly relevant to the knowing falsity of Olivieris

testimony and its materiality to the Civil Rico case.

1. Evidence of Moscatiellos Membership in the Genovese Family and Past Convictions

Is Admissible To Prove the Charged Perjury

At trial, the Government will seek to introduce evidence of Moscatiellos

membership in the Genovese Family, and of Moscatiellos 2004 conviction of crimes committed

through the Genovese Family against the Carpenters Union and other unions. Such evidence is

directly relevant to proving the materiality element of the perjury court, specifically, to explain

why the Government sought to depose Olivieri in the Civil RICO case, why Judge Haight



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permitted that deposition, and why Olivieris false statements about his relationship with

Moscatiello were material to the Civil RICO case.

A. Relevant Background

The events which led to Olivieris December 2007 deposition in the Civil RICO

case are detailed in the Governments Opposition to the Pretrial Motions of Defendants John

Greaney and Joseph Olivieri, dated April 30, 2010 (Gov. Opp.), at 24-41, and in attached

Exhibits D through L. This evidence includes, among other things, the Governments August 23,

2007 written application to Judge Haight setting forth its basis for seeking to depose Olivieri

about his relationship with Moscatiello (the Application, Exhibit G), and Judge Haights order

dated October 25, 2007, permitting the deposition. (Exhibit I).

As this evidence reflects, the Government sought to depose Olivieri in the Civil

RICO case based largely upon its good-faith belief that Olivieri had a relationship with

Moscatiello, and the fact that Moscatiello had been convicted of committing crimes through his

membership in the Genovese Family against the Carpenters Union (of which Olivieri was a

benefit funds trustee), against Local 530 of the Plasterers union (of which Olivieri was likewise

a benefit funds trustee), and against Locals 14 and 15 of the International Union of Operating

Engineers. (See Ex. G). The Government attached to its Application a copy of Moscatiellos

October 12, 2004 plea agreement with the Government, in which Moscatiello agreed to plead

guilty to six criminal charges two RICO counts, three conspiracy counts, and an extortion count

all relating to Moscatiellos extortion, embezzlement, and defrauding of these unions and/or

their benefit funds through his membership in the Genovese Organized Crime Family. (Id.)

Those criminal charges were set forth against Moscatiello in Indictment 03 Cr. 229 (NRB) and



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The Governments Application to depose Olivieri in the Civil RICO case also cited to2

testimony given by Local 14 business manager Joseph Rizzuto, Sr., during the trial of United

States v. Amiccuci, about Olivieris and Moscatiellos efforts to coerce Rizzuto to do the bidding

of the Genovese Family. As discussed below, infra, the Government intends to call Joseph

Rizzuto, Sr., at trial. The Governments Application also cited a 2005 judicial order in which

United States District Judge John Gleeson disbanded Local 530 of the Plasterers Union after

finding that Moscatiello, a Genovese gangster, had founded and operated Local 530 through

systemic corruption and organized crime influence. See Gov. Opp., Ex. G at 1-2, n.1 (citing

Drywall Tapers and Pointers of Greater New York, Local 1974 v. Local 530 of the Operative

Plasterers and Cement Masons Intl Assn, No. 98-CV-7076, 2005 WL 638006, at *3

(E.D.N.Y. Mar. 17, 2005)). It is undisputed that for a number of years, Olivieri held the position

of Local 530 benefit funds trustee.

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Information S5 03 Cr. 229 (NRB). Moscatiello was convicted of the charges on October 13,

2004, at a consolidated proceeding in which he pled guilty before Judge Buchwald in United

States v. Moscatiello, 03 Cr. 229 (NRB); S5 03 Cr. 229. 2

Specifically with respect to the Carpenters Union, Moscatiello pled guilty to

conspiring to commit benefit plan embezzlement and mail fraud, and conspiring to make false

statements in ERISA documents submitted to the District Council Benefit Funds, by allowing a

contractor to violate the terms of its collective bargaining agreement at the Kings County

Hospital expansion project by, among other things, paying workers off-the-books, employing

non-union workers, not paying workers union-scale wages, and misrepresenting the number of

workers on reports submitted to the District Council and the District Council employee benefit

funds. (Moscatiello Plea Agreement at 3, attached to Ex. G).

In permitting the Government to depose Olivieri in the Civil RICO Case, Judge

Haight relied heavily on the fact that Moscatiello had admitted, through his guilty plea, to

conspiring to defraud the District Council Benefit Funds on a jobsite through precisely the sort

of job site corruption that was a focus of the pending litigation then before the court. (Ex. I at



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While Moscatiellos conviction of these crimes, by itself, establishes Moscatiellos3

membership in the Genovese Family, the Governments proposed proof of the perjury charge

will also include the testimony of Joseph Rizutto, Sr., Artie Johansen, and FBI Agent Joy Adam,

see infra, each of whom provides additional evidence of Moscatiellos membership in the

Genovese Family.

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11-12) (quoting Moscatiellos plea agreement at length). Judge Haight authorized the

Government to depose Olivieri about his contacts with, and knowledge of, Moscatiello or other

organized crime figures relating to corruption on Carpenters Union jobsites. (Exs. I, L).

Subsequently, in his deposition testimony, Olivieri testified under oath that he

never met with Moscatiello (Indictment 81(i)); never made arrangements to see

Moscatiello (id. 81(ii)); had no recollection of ever discussing any kind of business with

Moscatiello (id. 81(iii)); did not recall having any conversations with Moscatiello about the

construction industry (id. 81(iv)); and did not have a relationship with Moscatiello (id. 8)).

See also Gov. Opp., Exhibit M at 164-177) (attaching deposition testimony). Each of these

statements is alleged as a basis for Olivieris perjury charge in Count Twenty-Two.

B. Discussion

By this motion in limine, we specifically seek to admit (i) Indictment 03 Cr. 229

(NRB) and Information S5 03 Cr. 229 (NRB), charging Moscatiello with committing the above-

described crimes through his membership in the Genovese Family; and (ii) Moscatiellos

judgments of conviction of those crimes.3

This proposed evidence is admissible as directly relevant to materiality, a

contested issue. For the jury to evaluate whether Olivieris false statements about his

relationship with Moscatiello were material to the Civil RICO case i.e., that truthful responses

by Olivieri could have influenced Judge Haight or the Government in the enforcement of the



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Consent Decree or in matters being litigated in the Civil RICO case (see Courts Order dated July

29, 2010, at 11, addressing materiality standard) the jury must be provided with information

about who Moscatiello was, and why the Government sought to depose Olivieri about the

relationship Olivieri had with him. Indeed, if Moscatiello were just some random guy, then

Olivieris false testimony about his relationship with Moscatiello might well have been

immaterial to the Civil RICO case. But it was precisely because the Government and Judge

Haight understood Moscatiello not to be some random guy, but rather a Genovese member who

had been convicted of criminal conduct involving the Carpenters Union, that Olivieris false

testimony was material to the Civil RICO case.

In addition, the proposed evidence is admissible as necessary background, to

provide the jury with factual context for why Olivieri was deposed in the Civil RICO case. As

indicated, Moscatiellos membership in the Genovese Family and 2004 convictions were key to

the factual context surrounding the taking of Olivieris deposition. It is well established that a

trial court may admit evidence that does not directly establish an element of the offense charged,

in order to provide background for the events alleged in the indictment. Background evidence

may be admitted to show, for example, the circumstances surrounding the events or to furnish an

explanation of the understanding or intent with which certain acts were performed. United

States v. Gonzalez, 110 F.3d 936 (2d Cir. 1997); see also United States v. Quinones, 511 F.3d

289, 309 (2d Cir. 2007). Here, the complete story of why the Government sought to depose

Olivieri in the Civil RICO case, and why Judge Haight permitted questioning relating to

Moscatiello, goes directly to the materiality element of the charged perjury offense. See United

States v. Canales, F. Supp. 2d , 2010 WL 2505578, at *1 (VM) (S.D.N.Y. Jun. 7, 2010)



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(Evidence of other bad acts may be admitted to provide the jury with the complete story of the

crimes charged by demonstrating the context of certain events relevant to the charged office)

(quoting United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994)).

In particular, the fact that both the Government and Judge Haight cited to

Moscatiellos conviction of defrauding the District Council Benefit Funds through his

membership in the Genovese Family as relevant to the deposition of Olivieri in the Civil RICO

case is proof that Olivieris subsequently-given false testimony about Moscatiello was material.

Olivieri was a trustee of the District Council Benefit Funds during the time period of

Moscatiellos admitted offense conduct, and the Consent Decree expressly prohibited knowing

association with organized crime members or associates. Evidence of whether Olivieri was an

associate of Moscatiello, and had a relationship that in part concerned the Genovese Familys

efforts to defraud the Carpenters Union and its benefit funds, was thus of obvious relevance to

the Civil RICO case. The Indictment and Information setting forth the criminal charges against

Moscatiello, and his convictions of those charges, were a matter of public record prior to the

Government seeking to depose Olivieri in 2007, and a factor that both Judge Haight and the

Government relied upon (combined with the Governments good-faith belief that Olivieri had a

relationship with Moscatiello) as a basis for the taking/authorizing of Olivieris deposition.

Because evidence of Moscatiellos convictions and membership in the Genovese

Family is directly relevant to the charged perjury offense, and an integral part of the factual

context surrounding Olivieris deposition, the probative value of this evidence outweighs any

potential prejudice to Olivieri. Federal Rule of Evidence 403 provides that relevant evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair



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prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403. Evidence is

not excludable under Rule 403 simply because it is prejudicial. What prejudice as used in

Rule 403 means is that the admission is, as the rule itself literally requires, unfair rather than

harmful. United States v. Jimenez, 789 F.2d 167, 171 (2d Cir. 1986). The prejudice that Rule

403 is concerned with involves some adverse effect . . . beyond tending to prove the fact or issue

that justified its admission into evidence. United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir.

1995) (quoting United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980)). Here, the evidence

the Government seeks to introduce regarding Moscatiellos Genovese membership and prior

criminal convictions is not unfairly prejudicial, but rather goes to the core of why the

Government deposed Olivieri about his relationship with Moscatiello and why Olivieris false

deposition testimony was material to the Civil RICO case. Moreover, the Government has no

objection to the Court providing an appropriate limiting instruction to the jury to minimize any

arguable prejudice.

The Government has given considerable thought to how to present evidence of

Moscatiellos Genovese membership and crimes against the Carpenters Union and other unions.

The most natural way to put in this evidence would be to admit the Governments August 2007

Application to depose Olivieri, and Judge Haights October 2007 permitting the deposition

both of which cited extensively to Moscatiellos guilty plea. However, to avoid raising any

potential Confrontation Clause through admission of Moscatiellos guilty plea, see Crawford v.

Washington, 541 U.S. 36, 59 n. 9 (2004), the Government will work with defense counsel over

the coming days in an effort to reach a stipulation as to the admissibility of this evidence. At a



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minimum, the Government will seek to offer the charging instruments against Moscatiello and

his judgments of conviction neither of which raise any Confrontation Clause issue. The

Government also expects to introduce the testimony of Benjamin Torrance, the Assistant United

States Attorney who was responsible for handling the Civil RICO Case in 2007, and who sought

to depose Olivieri and ultimately took Olivieris deposition. AUSA Torrance is expected to

explain to the jury what matters were pending in the Civil RICO case in 2007, and why the

Government sought to depose Olivieri about his relationship with Moscatiello.

2. Evidence of Olivieris Association with the Genovese Family Is Admissible to Prove

the Perjury Count

To prove the charged perjury count, the Government will seek to offer evidence of

Olivieris association with the Genovese Family. This evidence also constitutes direct proof of

the perjury count. For example, whereas Olivieri testified that he never met with Moscatiello,

never made arrangements to see Moscatiello, and had no recollection of ever discussing any

business matters with Moscatiello, the Government will seek to introduce evidence

demonstrating that Olivieri in fact met with Moscatiello on multiple occasions, at planned

meetings relating to the business of the Genovese Family. Simply put, evidence of Olivieris

association with the Genovese Family is directly probative of (i) the falsity of Olivieris sworn

statements about his relationship with Moscatiello, (ii) Olivieris knowledge of the falsity of his

statements, and (iii) the materiality of Olivieris false statements to the Civil RICO case.

The Government notes that it does not intend to offer every witness and piece of

evidence at its disposal concerning Olivieris association with the Genovese Family; rather, the

Government discriminately seeks to offer evidence that is probative of Olivieris relationship



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Pursuant to a cooperation agreement with the Government, Rizzuto pled guilty to one4

count of conspiracy to receive unlawful labor payments, in violation of 18 U.S.C. 371; one

count of honest services mail fraud in violation of 18 U.S.C. 1341, 1346, and 2; and one count

of receiving unlawful labor payments, in violation of 29 U.S.C. 186. In December 2009,

Rizzuto was sentenced to a term of probation.

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with Moscatiello (which necessarily entails an explanation of his ties to the Genovese Family) to

prove the charged perjury offense. Currently, the Government expects to offer: testimony from

two lay witnesses who have personal knowledge of Olivieris association with the Genovese

Family and Moscatiello, and who witnessed meetings of Olivieri and Moscatiello; testimony

from law enforcement officers who surveilled meetings of Olivieri and Moscatiello; and a 2004

recorded conversation in which a Genovese member and associates discussed Olivieris

association with Louis [Moscatiello] and Vinny DiNapoli, another Genovese member. A

summary of this proffered evidence is set forth below.

(a) Testimony of Joseph Rizzuto

Joseph Rizutto was business manager of Local 14 of the Operating Engineers

Union from approximately 1989 through 2000. Prior to that he was president and business agent

of Local 14 from approximately 1974 through 1989. Rizzuto is a cooperating witness of the

Government.4

Rizzuto is expected to testify that the Genovese Family had claimed Local 14

and exerted influence over the local for years. Among other things, the Genovese Family

pressured Rizzuto and other union officers to give preferential treatment to Genovese Family

members and associates, and to their relatives, for admission into the local. To keep the mob

happy and at bay, Rizzuto acceded to these requests, and mob-connected individuals were given

membership books despite their inability in some cases to operate the equipment covered by



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the local. Early on, after becoming a business agent, Rizzuto was also alerted by a fellow Local

14 business agent of Vinny DiNapolis powerful status within the Genovese Family, and was

directed not to give DiNapoli a hard time on jobsites within Local 14s jurisdiction. In fact,

Vinny DiNapoli at one point personally recruited Rizutto to become involved in the Genovese

Family. Rizzuto declined those recruitment efforts.

The Genovese Family always had someone acting as its designated contact person

with Local 14, who delivered messages on behalf of the Genovese Family to Rizzuto (and to

Rizzutos predecessor). For a short period of time in the late 1990s, that contact person was

Joseph Olivieri. In or about 1999, Olivieri (who went by the nickname Rudy) informed

Rizzuto that he represented the Genovese Family, and visited Rizzuto at the union hall on

multiple occasions. Olivieri approached Rizzuto on at least three or four occasions to obtain

union books for organized-crime connected individuals, including a person Olivieri referred to as

the the bosss relative.

Rizzuto planned to retire from the union in 2000, and for his son (Joseph Rizzuto,

Jr.) to replace him as Local 14s business manager. As Rizzutos anticipated retirement

approached, Olivieri paid Rizzuto a visit to relay the message that the people Olivieri represented

wanted Joe Coriasco who Rizzuto knew to be connected to organized crime to be appointed

assistant business manager of the local. Rizzuto resisted, believing that appointment of Coriasco

to an assistant manager position would, among other things, undermine his sons standing with

the members and the chances of his son being elected business manager. Rizzuto also feared that

appointment of Coriasco to a non-elected, senior officer position would make Local 14s benefit

funds vulnerable to organized crime influence and embezzlement something Rizzuto had



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prevented up to that point.

Olivieri returned to the union hall several times to repeat the same message to

Rizzuto, i.e. that the Genovese Family wanted Coriasco appointed assistant business manager.

Rizzuto continued to resist. At an industry conference in Florida, in February 2000, Olivieri

approached Rizzuto to press the subject again. Olivieri threatened Rizzuto that he (Rizzuto) had

better not forget his obligations to organized crime or he could find himself in a world of hurt.

Olivieri also said that Rizzuto now would have to see Olivieris boss.

Not long thereafter, Olivieri approached Rizzuto at a function hosted by the Wall

& Ceiling Association at a country club on Long Island. Olivieri told Rizzuto they needed to talk

and proceeded to drive Rizzuto to a hotel near LaGuardia Airport, where Olivieri escorted

Rizzuto to a hotel room. When Rizzuto entered the hotel room, Moscatiello was inside waiting

for him. Moscatiello, Olivieri, and Rizzuto were present in the hotel room during this meeting.

Moscatiello physically patted Rizzuto down looking for a wire, commenting that he

(Moscatiello) had once been burned by a union delegate wearing a wire (a true fact that led to

Moscatiellos prior conviction in state court). Moscatiello then proceeded to discuss with

Rizzuto, in Olivieris presence, their desire for Coriasco to be made assistant business manager

of Local 14. Rizzuto convinced Moscatiello, at least for the time being, that everyone would be

better off with Rizzuto, Jr. securely in place.

In 2000, Carl Carrara, a longtime Genovese associate, replaced Olivieri as the

Genovese Familys daily contact person with Local 14. Both Carrara and Olivieri explained to

Rizzuto that Carrara now represented Rizzutos friends. Rizzuto retired from Local 14 in or

about May 2000.



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(b) Testimony of Arthur (Artie) Johansen

Artie Johansen is the son-in-law of Tommy Nastasi, Jr. (hereafter Tommy

Nastasi). For many years, Tommy Nastasi owned and ran Nastasi White Inc., a prominent New

York City drywall contractor. Johansen worked for Nastasi White and ultimately took over

running the company in approximately 1995, after Tommy Nastasi developed cancer and

eventually passed away.

Johansen knew of Tommy Nastasis relationship, and Nastasi Whites

relationship, with the Genovese Family. Tommy Nastasi was close with both Louis Moscatiello

and Vinny DiNapoli and, for years, Nastasi White made regular cash payments to the Genovese

Family. Tommy Nastasi was also one of the directors of the Wall & Ceiling Association; it was

Nastasi who was responsible for hiring and appointing Joseph Olivieri to the position of

executive director of the Association.

In approximately 1995, when Tommy Nastasi became ill and turned management

of the company over to Johansen, Nastasi told Johansen to continue making monthly payments of

$3,000 to Ralph Coppola, a Genovese Family member, and to go to Coppola for any problems

on the street. Johansen did so, and also occasionally communicated with Moscatiello directly.

Johansen also came to personally know Olivieri in the late 1990s, by serving on the board of the

Wall & Ceiling Association with Olivieri.

In or about 1998, Johansen tried to set up a meeting between Olivieri and Ralph

Coppola, at Coppolas request. Olivieri refused to meet with Coppola, telling Johansen that

Coppola had been put on the shelf. Johansen knew this to be wiseguy terminology indicating



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Ralph Coppola disappeared in September 1998 and is presumed dead. To avoid any5

potential prejudice to Olivieri, the Government will not elicit that information at trial.

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that Coppola was out of favor with the Genovese Family leadership. Not long thereafter,5

another individual connected to the Genovese Family, Mickey Ragusa, informed Johansen that

he would be taking over collection of the payments previously made to Coppola. In 1999,

Moscatiello also threatened Johansen, demanding payment of approximately $50,0000 for a

purported debt that Moscatiello claimed was owed to Moscatiellos son. At Moscatiellos

direction, Johansen made the payments through a company called Quality Drywall.

Johansen knew that Moscatiello and Olivieri had a relationship. On at least two

occasions, in approximately 1999 or 2000, Johansen saw Moscatiello and Olivieri meet in the

coffee shop on the ground floor of the Nastasi White building, located in College Point, Queens.

Johansen was not pleased with Moscatiello and Olivieri meeting in Nastasi Whites building,

because of the organized crime implications, and believed they chose that location to meet

because it was mid-way between Olivieris office in Hicksville, Long Island, and Moscatiellos

office in Pelham Bay, Bronx.

(c) Surveillance in Vicinity of Pelham Bay Brokerage

On the afternoon of April 13, 2000, a law enforcement officers conducting

surveillance outside of Louis Moscatiellos office in Pelham Bay, Bronx, saw Moscatiello

speaking to man in a blue, Forde Explorer with New York License #T905B. The plates came

back as registered to Joseph Olivieri. Although the officers were unable to identify the man in

the Forde Explorer, given that it was Olivieris car, one could reasonably infer that this was a

conversation between Moscatiello and Olivieri.



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The agents report wrote the name phonetically as Ford. However, the Government6

believes this was probably a reference to Michael Forde. UI refers to the agents notation of

parts of the conversation that were inaudible.

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(d) Surveilled Meeting of Olivieri and Moscatiello at Bronx Restaurant

On July 24, 2000, FBI Agent Dan Conlon surveilled a meeting between Louis

Moscatiello and Olivieri inside Jimmy Ryans Bar and Restaurant, located at 3005 Middletown

Road, in the Bronx. The meeting lasted approximately 40 minutes, from 4:15 p.m. to 4:55 p.m.

During the surveillance, Conlon overheard portions of Moscatiellos statements to Olivieri,

which included the following:

Ford[e] wants somebody. Get it done as fast as possible. (UI) They had

a problem they sent for him;6

I was out on the Island today to see Carl (UI) Hes got a problem with

us;

Hes a sharp kid, if we lose him. Hes our eyes and ears. (UI) Resolve

the problem (UI) If he wants off the job (UI);

Take the beef upstairs (UI) Scared the shit out of him;

I dont want to meet with anybody. I dont want to meet with anybody. I

dont want to meet with anybody. (UI) Call the District Council (UI)

Manny (UI) Mannys gonna come right at you. Taking jobs for cash.

I met with Joey on Friday, called me on Friday (UI) hes living with hissister. The whole family is pissed with Artie

I told Mickey (UI) Mickeys being audited by the IRS. Hes fucked, he

knows hes fucked (to which Olivieri responded Hes fucked)

(e) Recording in which Genovese-Connected Individuals

Discuss Olivieris Connection to the Family

On September 28, 2004, with court authorization, the Government intercepted a

conversation between John Buster Ardito, Peter Peluso, and Michael Doris, at Agostinos



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restaurant, located at 969 Boston Post Road, in New Rochelle, New York (the Agostinos

recording). Buster Ardito was a captain of the Genovese Family. Peluso was a longtime lawyer

to the Genovese Family and a Genovese associate. Michael Doris was a low-level Genovese

associate. None of the participants to the conversation knew they were being recorded. During

the meeting, Olivieri was discussed:

Peluso: And he told me. Rudy, the kid Rudy. The kid who was around Vinny

DiNapoli, in the union. Joe Olivieri. They call him Rudy.

Doris: Oh yea, Joe Rudy.

Ardito: Friend of Louis, yeah.

The three men then proceeded to discuss, on tape, Olivieris family members and Olivieris

former employment with Sony Records (which was in fact Olivieris employment before being

made director of the Wall and Ceiling Association).

The Government intends to call FBI Agent Joy Adam, one of the case agents who

supervised the Agostinos recording and the FBIs related investigation into the Genovese

Family, to authenticate the recording, identify the voices on the recording, and identify Ardito,

Peluso and Doriss affiliations with the Genovese Family. Agent Adam will also testify that the

terminology used during this recorded conversation to describe Olivieris relationships with

Vinny DiNapoli and Louis [Moscatiello] i.e., being around DiNapoli and being a friend of

Louis is specific terminology used by wiseguys to describe a persons association with

organized crime.

B. Discussion

The above-proffered evidence is highly probative, direct evidence of Olivieris

commission of the charged perjury. Whereas Olivieri testified under oath that he had never met



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with Moscatiello, never arranged to meet Mosciatello, and never discussed any business matters

with Moscatiello, the above-proffered evidence shows that Olivieris sworn statements were

false, that Olivieri knew his statements were false, and that Olivieri intentionally lied to prevent

the Government and Judge Haight from learning of his actual connection to organized crime,

thus demonstrating the materiality of his false testimony to the Civil RICO case.

In our attempts to confer with defense counsel prior to filing this motion, defense

counsel took the position that any evidence of Olivieris association with the Genovese Family

should be precluded as prejudicial. That position is patently meritless.

As discussed above, evidence is not excludable under Rule 403 simply because it

is prejudicial. It must be unfairly prejudicial, by having some adverse effect . . . beyond

tending to prove the fact or issue that justified its admission into evidence. Gelzer, 50 F.3d at

1139; Jimenez, 789 F.2d at 171. Here, the evidence the Government seeks to introduce regarding

Olivieris organized crime association is not unfairly prejudicial, but rather the core evidence

proving the perjury, i.e., proving that Olivieri knowingly made materially false statements. For

example, Rizzutos testimony will establish not only that Olivieri in fact had a relationship with

Moscatiello, but also that Olivieri reported to Moscatiello, and that for a period of time Olivieri

acted as Moscatiellos and the Genovese Familys agent in dealing with Local 14. Indeed, when

Olivieri threatened Rizzuto with a world of hurt should Rizzuto forget his obligations to

organized crime, Olivieri made that threat on behalf of Moscatiello as indicated by the fact that

Olivieri then told Rizzuto he would have to see Olivieris boss, and brought Rizzuto to a hotel

room in which Moscatiello was waiting to discuss the Genovese Familys desire to influence a

Local 14 union appointment. While such evidence may be damaging to Olivieris case because



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Board minutes of the Wall and Ceiling Association (which the Government will also7

seek to introduce at trial) independently corroborate Johansens account that Tommy Nastasi was

responsible for Olivieris appointment to the executive director position of the Association.

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it is compelling, direct evidence of Olivieris commission of perjury it is in not unfairly

prejudicial.

Similarly, the anticipated testimony of Artie Johansen is highly probative, direct

proof of the charged perjury. Johansen is an eye witness to at least two meetings between

Moscatiello and Olivieri in the Nastasi White building. Evidence of how Johansen knew both

Moscatiello and Olivieri, and context for why Moscatiello and Olivieri met in the Nastasi White

building, is inextricably linked with Johansens account of Nastasi White being a mob-connected

company. Johansen should be permitted to explain, among other things, that he knew

Moscatiello through his father-in-laws and Nastasi Whites longtime relationship with the

Genovese Family, as a part of which Nastasi White had been making payments to the Genovese

Family for years; that he came to know Olivieri after Tommy Nastasi had Olivieri installed as

executive director of the Wall and Ceiling Association ; and that Olivieri was connected to the7

Genovese Family and knew that Nastasi White a signatory contractor of the Carpenters Union

had a relationship with the Genovese Family too. Johansens testimony, like Rizuttos, goes to

directly to the falsity of Oliviris deposition statements, the knowing falsity of those statements,

and in their materiality to the Civil RICO case.

Moreover, Rizzutos and Johansens proffered testimony should be admitted

because it will be incumbent upon the Government at trial to elicit these witnesses own

participation in acts relating to the Genovese Family as part of the witnesses Giglio and

impeachment material. See Giglio v. United States, 405 U.S. 150 (1972); United States v.



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Bagley, 473 U.S. 667 (1985). Under governing legal precedent, the Government is permitted to

elicit the witnesses testimony about these acts to avoid the appearance that it [is] concealing

impeachment evidence from the jury. United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.

1991); United States v. Louis, 814 F.2d 852, 856 (2d Cir. 1987). Any attempt to sanitize the

Giglio material by omitting the witnesses testimony about their own participation in acts relating

to the Genovese Family will only mislead the jury.

The law enforcement surveillances provide additional direct evidence of Olivieris

meetings with Moscatiello. In particular, Agent Conlons surveillance and overhear of a July

2000 meeting between Moscatiello and Olivieri shows that these men intentionally met at a

restaurant to discuss union-related matters, with Moscatiello directing Olivieri to call the

District Council and to get something done as fast as possible for Ford[e]. Moscatiello also

talked to Olivieri about someone who was taking jobs for cash. This overheard conversation is

highly probative of the falsity of the Olivieris sworn statements denying that he ever arranged to

meet with Moscatiello and did not recall ever discussing the construction industry, or business of

any kind, with Moscatiello. Other portions of the overheard conversation indicate that

Moscatiello used the meeting to update Olivieri on Genovese Family business, including by

telling Olivieri that Carl has got a problem with us; Mickeys being audited by the IRS; I

dont want to meet with anybody; The whole family is pissed with Artie. Even overheard

snippets such as Moscatiello saying take the beef upstairs a wiseguy term for how disputes

among mobsters are resolved by bringing the dispute to individuals higher-up in the organized

crime syndicate indicate that Olivieri was a trusted associate of Moscatiello privy to affairs of

the Genovese Family, and that Olivieri lied at his deposition by denying the true nature of the



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relationship with Moscatiello.

Also admissible is the 2004 Agostinos recording in which Buster Ardito and Pete

Peluso discuss Olivieri being a friend of Louis, and around Vinny DiNapoli. This recording

is highly probative of the perjury charge because it further confirms, out of the mouths of a

Genovese member and associates, that Olivieri was an associate of the Genovese Family at that

time, and specifically an individual associated with Moscatiello and DiNapoli. The statements

are admissible as co-conspirator statements under Rule 801(d)(2)(E), which provides that an out-

of-court statement is not hearsay . . . if the [t]he statement is offered against a party and is . . . a

statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Fed. R. Evid. 801(d)(2)(E). For a statement to be admissible under this rule, the Court must find

by a preponderance of the evidence: (1) there was a conspiracy; (2) its members included the

declarant and the party against whom the statement is offered; and (3) the statement was made [i]

during the course of and [ii] in furtherance of the conspiracy. Glen v. Bartlett, 98 F.3d 721, 728

(2d Cir. 1996).

Here, the Government will be able to establish, through all of the other proffered

evidence of Olivieris association with the Genovese Family, that Ardito, Peluso, and Doris were

co-conspirators of Olivieri in an uncharged racketeering conspiracy to maintain and operate the

Genovese Organized Crime Family. See United States v. Russo, 302 F.3d 37, 47 (2d Cir. 2002)

(admitting out-of-court statements under Rule 801(d)(2)(E) where the statements apprised co-

conspirators of the Colombo Organized Crime Family of the status and relative standing of

various members and associates, because such statements were in furtherance of the conspiracy

to operate the Colombo family). In Russo, the Second Circuit recognized that an organized



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In Gigante, the Second Circuit observed that, for a statement to fit within the co-8

conspirator exception to the hearsay rules, there must be a specific criminal conspiracy beyond

the general existence of the Mafia. 166 F.3d 75, 82. The appellant in Russo seized on this

statement to argue that mere joint membership in a criminal organization, such as in one of the

five families of La Cosa Nostra, can never serve as the basis for finding the existence of a

conspiracy that is a predicate for applying the co-conspirator exception. Russo, 302 F.3d at 44.

The Second Circuit rejected this reading of Gigante. Id. at 44-47. In Russo, the Second Circuit

clarified that Gigante stands only for the narrow and unremarkable proposition that, where a

statement is offered to prove the defendants involvement in a specific crime (in Gigante, a

murder), the defendants and the declarants joint membership in the Mafia, without more, is

insufficient to justify the admission of the statement for that purpose. Id. In contrast, where, as

here, the statement is offered to show an organized crime syndicates membership, leadership,

structure, as well as its internal rivalry and dissension, the statement is admissible for that

purpose under the co-conspirator exception if the Government can establish, by a preponderance

of the evidence, that the declarant and the defendant belonged to the same criminal organization.

Id.

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crime family cannot function properly unless its members and persons who do business with it

understand its membership, leadership, and structure. Id. at 46. Hence, statements by criminal

associates to one another about membership, hierarchy, activities of the organized crime

enterprise and the various roles of [defendants] in it are all statements made during and in

furtherance of the conspiracy, as are statements designed to reassure a co-conspirator, maintain

trust and cohesiveness among them, or inform each other of the status of the conspiracy. Id.

(quoting United States v. Persico, 832 F.2d 705, 716 (2d Cir. 1987). See also United States v.

Gigante, 166 F.3d 75, 82 (2d Cir. 1999) (noting that in organized crime cases, the relevant

conspiracy may grow quite large).8

Moreover, it does not matter to the admissibility of the Agostinos recording that

Olivieri is not charged in the instant Indictment with participating in a conspiracy involving the

Genovese Family. As the Second Circuit has stated: In Maldonado-Rivera, we held that

although Fed. R. Evid. 801(d)(2)(E) requires proof that both the declarant and the party against



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whom a declaration is offered be members of the same conspiracy, it does not require that the

conspiracy be one charged in the indictment. United States v. DeVillio, 983 F.2d 1185, 1193

(2d Cir. 1993) (citing United States v. Maldonado-Rivera, 922 F.2d 934, 962 (2d Cir. 1990)).

In addition, the proffered evidence of Olivieris association with the Genovese

Family is admissible under Federal Rule of Evidence 404(b) to rebut any claim by Olivieri that

he lacked the requisite knowledge or intent to commit perjury, and to prove his motive to lie

during his deposition in the Civil RICO case. Evidence of other bad acts is admissible under

Rules 404(b) and 403 of the Federal Rules of Evidence if it is (1) advanced for a proper purpose;

(2) relevant to the crimes for which the defendant is on trial; (3) more probative than prejudicial;

and (4) if requested, admitted subject to a limiting instruction. See United States v. Zackson, 12

F.3d 1178, 1182 (2d Cir. 1993); United States v. Ramirez, 894 F.2d 565, 568 (2d Cir. 1990)

(citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). Under the Second Circuits

inclusionary approach to the admission of other act evidence, evidence of prior crimes, wrongs

or acts is admissible for any purpose other than to show a defendants criminal propensity.

United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996). Those requirements are met here.

Evidence of Olivieris association with the Genovese Family is germane and

admissible under Rule 404(b) to show that Olivieri had a motive to lie at his deposition in the

Civil RICO case namely, a motive to hide from the Government and Judge Haight his

association with the organized crime, to protect both himself and the Genovese Family. Olivieri

of course knew that a chief goal of the Civil RICO case was to eradicate organized crime

influence from the Carpenters Union, and that the Consent Decree prohibited his association with

organized crime members or associates. Had Olivieri truthfully disclosed his association with



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the Genovese Family and Moscatiello, he would effectively have admitted his violation of the

Consent Decree, and jeopardized his longtime and influential positions as a trustee of the District

Council Benefit Funds and executive director of the Wall and Ceiling Association. Accordingly,

evidence of Olivieris organized crime association is highly probative of his motive to lie. See

Fed. R. Evid. 404(b) (other act evidence admissible as proof of motive).

Evidence of Olivieris organized crime association is also admissible under Rule

404(b) to show intent, plan, knowledge and absence of mistake. Fed. R. Evid. 404(b).

At his sworn deposition, Olivieri repeatedly answered questions about his relationship with

Moscatiello by stating that he did not recall. See Indictment 85 (Olivieri testifying I dont

recollect ever making a meeting with [Moscatiello]; answering not to my recollection in

response questions about whether he ever discussed any kind of business with Moscatiello, or

conversed with Moscatiello about the construction industry). Particularly for that reason,

the proffered evidence of Olivieris substantial (and entirely memorable) interactions with

Moscatiello relating to the business of the Genovese Family is admissible to show that Olivieris

professed lack of recollection was bogus, and part of a plan to avoid answering the questions

truthfully. A juror could easily find, for instance, that Olivieri would not have forgotten his

conduct toward Joseph Rizzuto on behalf of the Genovese Family, which involved Olivieri

threatening Rizzuto and then bringing Rizzuto to a surreptitious meeting with Moscatiello in a

hotel near LaGuardia Airport. See United States v. Sweig, 441 F.2d 114, 117 (2d Cir. 1971)

(jury can infer defendants knowledge of the falsity of his statements -- including false denials of

knowledge or recollection -- through circumstantial evidence, including evidence of the things

the defendant said and did; proof of the objective falsity of the statements; proof of the



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defendants motive to lie; and from other facts tending to show that the defendant really knew

the things he claimed not to know).

3. Evidence of Olivieri Paying for Union Officers Meals and Expenses Prior to August

2004 Should be Admitted

Finally, the Government intends to offer evidence of instances, prior to August

2004, in which Olivieri paid for meals and other expenses of union officers, and seeks an in

limine ruling permitting such testimony. As the Court is aware, Olivieri was initially charged in

Count Seventeen with making unlawful payments to labor representatives from in or about 2002

through in or about 2005, in violation of 18 U.S.C. 186(a)(1) and (d)(2), and 18 U.S.C. 2.

Specifically, Olivieri was alleged to have paid tens of thousands of dollars for the meals and

expenses of District Council officers and representatives, including but not limited to Michael

Forde and John Greaney. After Olivieri filed a motion to dismiss a portion of this charge on

statute of limitations grounds, the Government agreed to dismiss voluntarily from Count

Seventeen the payments occurring before August 3, 2004. However, the Government intends to

offer proof of Olivieris pre-August 2004 payments pursuant to Rule 404(b).

The Government intends to offer evidence of Olivieris payments in two fashions.

First, John Greaney is expected to testify that Olivieri would routinely treat him and other

union officials to meals, particularly when they were out of town at conventions or other

meetings. Second, the Government intends to offer expense reports completed by Olivieri and

submitted to the Wall and Ceiling Association for reimbursement. Because these expense reports

are voluminous, the Government intends to offer a summary chart, pursuant to Rule 1006,

summarizing the relevant portions of these expense reports, including each instance where

Olivieri indicated on the report that he should be reimbursed for costs expended entertaining



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union officials. The chart will show that Olivieris payments began in at least 2002, and

continued as a matter of course into 2005.

As indicated above, other acts evidence can be admitted for any purpose other

than to show a defendants criminal propensity, United States v. Mitchell, 328 F.3d 77, 82 (2d

Cir. 2003) (quoting United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)), subject to the

constraint that, under Rule 403, the probative value of the evidence is not substantially

outweighed by the risk of unfair prejudice. United States v. Alli-Balogun, 72 F.3d at 11. Other

acts evidence is admissible to prove, among other things, intent, knowledge, opportunity,

preparation, plan, and absence of mistake or accident. See Fed. R. Evid. 404(b).

In this case, evidence that Olivieri made it a practice of making payments to union

officials for years before August 2004, treating them to thousand dollar dinners and other

gratuities, is relevant to his criminal intent and absence of mistake in making similar prohibited

payments after August 2004. Indeed, the fact that Olivieri treated union officials through

prohibited payments as a matter of course for a period of several years supports the notion that he

had a criminal purpose in cultivating his relationship with union officials, and that the post-

August 2004 payments were not simply isolated or innocent incidents.

The years of pre-August 2004 payments are also admissible under Rule 404(b) to

show the relationship of trust Olivieri was able to develop with Michael Forde, who later assisted

Olivieri in obtaining work with James Murray. Forde and Olivieri are charged co-conspirators in

Count Three of the Indictment (the On Par conspiracy). The Second Circuit has consistently

upheld the admission of evidence of uncharged, prior bad acts under Rule 404(b) to establish and

explain the existence of a relationship between co-conspirators. See United States v. Araujo, 79



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F.3d 7, 8 (2d Cir. 1996) (holding other act evidence admissible to show the background of . . . a

relationship of trust.); United States v. Guang, 511 F.3d 110, 120-21 (2d Cir. 2007) (affirming

trial courts admission of evidence of uncharged bad acts to demonstrate the existence of a

relationship of mutual trust, or to enable the jury to understand how the illegal relationship

between the co-conspirators developed) (internal quotations omitted); United States v.

Williams, 205 F.3d 23, 33-34 (2d Cir. 2000) (same); United States v. Rosa, 11 F.3d 315, 334 (2d

Cir. 1993) (same); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (same).

In Count Three, Olivieri and Forde are charged as being co-conspirators, along

with James Murray, Finbar ONeill and others, in a conspiracy to help On Par cheat the union

benefit funds out of millions of dollars as part of a you wash my back, Ill wash yours culture

of bribes and kickbacks. There is nuance to how such corrupt relationships are formed and

nurtured over time in the construction industry. The development of Olivieris illicit relationship

with Michael Forde, which later led to Olivieris developement of a relationship with James

Murray, serves as a prime example, and is relevant to the offense charged in Count Three.

Specifically, we expect the evidence to show that, after numerous instances of Olivieri paying for

Fordes meals and expenses in 2002 and 2003, Forde used his influence to help Olivieri secure

excavation work. Finbar ONeill who was delivering cash bribes to Forde during this time

period on behalf of On Par is expected to testify that, in approximately 2003, Forde introduced

ONeill to Olivieri at an arranged lunch, at which Forde encouraged ONeill to help find

excavation work for Olivieri. (Olivieri had an excavation company called DNO Contracting).

ONeill, in turn, encouraged James Murray to offer excavation work to Olivieri on two non-

union buildings Murray was beginning to construct in Riverdale, New York. Murray is expected



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to testify that he was desirous of developing a closer relationship with Olivieri because he knew

of Olivieris influentual position within the Carpenters Union, as a benefit funds trustee and head

of the Wall and Ceiling Association. Accordingly, in 2003, Murray helped to ensure that

Olivieris company, DNO, was given the opportunity to bid on the work. DNO was in fact

awarded the excavation contracts on the two buildings, which yielded Olivieri well over $1

million in payments to DNO. Later, Murray further cultivated his relationship with Olivieri by,

among other things, loaning Olivieri $730,000.

This chain of events, which bears on Olivieris participation in the conspiracy

charged in Count Three, stemmed in part from Olivieris cultivation of his relationship with

Michael Forde which included Olivieris payment for thousands of dollars of Fordes meals

and expenses while Forde was the head of the union. This evidence shows in real-life, if

nuanced, terms, how individuals within the union and construction industry cultivated corrupt

and trusting relationships to line each of their respective pockets. Proof of Olivieris payments of

union officers meals and expenses prior to 2004 is thus relevant and admissible to add context

and dimension to the Governments proof of Count Three, and of Olivieris co-conspirator

relationships with Forde, James Murray and Finbar ONeill. See United States v. Gonzalez, 110

F.3d 936 (2d Cir. 1997) (To be relevant, evidence need only tend to prove the governments

case, and evidence that adds context and dimension to the governments proof of the charged

crime can have that tendency.); United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994) (When

the indictment contains a conspiracy charge, uncharged acts may be admissible as direct evidence

of the conspiracy itself.).



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Moreover, there is no risk of undue prejudice from the admission of this evidence.

The evidence of Olivieris pre-August 2004 payments is certainly no more inflammatory than the

evidence of his post-August 2004 payments. Nor is it any more inflammatory than other

evidence that will be presented at trial. Rather, it is part and parcel with evidence of the culture

of corruption that pervaded the Carpenters Union, and Olivieris role in it. In any case, any risk

of undue prejudice could easily be addressed by an appropriate limiting instruction, if Olivieri

should request one.

CONCLUSION

For the foregoing reasons, the Government respectfully requests that the Court

rule in limine: (1) to admit evidence of Louis Moscatiello, Sr.s membership in the Genovese

Family and convictions of crimes committed through the Genovese Family, against the

Carpenters Union and other unions; (2) to admit evidence of Olivieris association with the

Genovese Family; and (3) to admit evidence of Olivieris pre-August 2004 payment of

meal/expenses for union officials including co-defendants Michael Forde.

Dated: New York, New York

August 13, 2010

Respectfully submitted,

PREET BHARARA

United States Attorney for the

Southern District of New York,

Attorney for the United States of America

By: ___/s/__________________________

Lisa Zornberg

Mark Lanpher

Assistant United States Attorneys

(212) 637-2720/2399


2010-08-13 Olivieri Govt's Mot in Limine

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