United States v. Antico, 10-5026-cr (2d Cir. August 14, 2012) (Pooler, Livingston, Lohier, CJJ)
Mario Gulinello won $1.6 million at a horse race. Defendant Antico was convicted of conspiring with members of the Genovese crime family to rob him of that money, one of the predicates of a racketeering conviction. On appeal, Antico argued that the evidence was legally insufficient. A divided circuit affirmed.
As is usual in sufficiency cases, this decision is very fact specific, but the facts here are kind of unusual. About four years after Gulinello won the money, two members of the Genovese family took him for a drive. They pulled up next to Antico’s car, and said “Hey, Tico, say hello to my friend Mario.” The entire encounter lasted only a few seconds. Gulinello had been told that Antico was a “good guy,” who had recently been released from jail. This was Gulinello's only contact with the putative robbers.
Nevertheless, the circuit majority found sufficient evidence of a robbery conspiracy in wiretap evidence obtained around this same time that revealed Antico’s “increasing financial difficulties,” “familiarity with Gulinello’s wealth” and “eagerness to rob Gulinello with the help of accomplices.” For example in a July 2008 call Antico and one of the Genovese guys discussed a “house robbery.” Two days later they seemingly made reference to the plan as that “thing over there,” and the day after that they discussed recruiting one “Paulie” to “help us with something” involving Gulinello, whom they knew had won a lot of money at the track. To the majority, several subsequent calls among Antico and his associates seemed to firm up the plan.
The specific racketeering predicate alleged a conspiracy to violate N.Y. Penal Law § 160.10(1), which makes it a crime to “forcibly steal property” “aided by another person actually present.” Under new York law, the threat of force “may be implicit.” According particular deference to the jury’s verdict in “reviewing a conviction for conspiracy,” the recorded telephone conversations were sufficient circumstantial evidence that there was a plan to rob Gulinello with accomplices and with “at least an implicit threat of force.”
Judge Pooler, in dissent, disagreed. To her, the evidence established only that Antico and his guys conspired to commit “a crime” against Gulinello, but not that the contemplated crime was necessarily robbery as defined in New York law. To her, what was missing was specific evidence that the plan included using or threatening the immediate use of physical force. Even though the plotters sometimes used the word “rob” in their discussions, they never discussed the use of force, and the word “rob” standing alone could include “any ... of the sorts of other ways that a person can be divested of his or her money without the use or threat of force.”