The Second Circuit reversed Eastern District Judge Jack Weinstein are reinstated the conspiracy convictions against New York’s “Mafia Cops,” Louis J. Eppolito and Stephen Caracappa. In a 70 page opinion by Judge Amalya L. Kearse, the Circuit held that the conspiracy to serve the mob, by providing information as well as extortion and murders while Eppolito and Caracappa before their retirement from the NYPD continued on when they engaged in money laundering and drugs in Las Vegas in 2004 and 2005.
This is an example of how an exceptionally ugly case, involving exceptionally despicable defendants, pushes courts to stretch the confines of conspiracy until it’s lost all meaning, and merely serves as a vehicle to get defendants that need getting.
From the New York Times, Judge Weinstein made clear when he tossed the convictions for racketeering conspiracy as being outside the 5 year statute of limitations, that these were very bad men. But he also did what judges are paid to do: Apply the law.
Then, saying the five-year statute of limitations for racketeering had run out, the judge overturned the convictions despite what he called “overwhelming evidence” that the two men were “heinous criminals” who were guilty of the “most despicable crimes of violence and treachery.”
Following their retirement from the police force, Eppolito and Caracappa did not suddenly become saints, and years later, they engaged in other crimes.
Although murders and other serious crimes that the men were accused of occurred in Brooklyn in the 1980s and 1990s, prosecutors used more recent and less serious charges — money laundering and narcotics distribution in Las Vegas in 2004 and 2005 — to bring the earlier acts under the umbrella of an ongoing criminal enterprise.
The Vegas crimes, no doubt every bit as real as real and wrong as any other crimes, were used to bootstrap the earlier, and concluded, conspiracy in order to craft a conspiracy that fell within the 5 year statute. But there was never any question that this was a blatant, transparent effort to manufacture a way to hold these two accountable for a conspiracy that had long since ended.
Judge Weinstein, in throwing out the men’s convictions, had found that the recent crimes were “singular, sporadic acts of criminality,” and could not be considered part of the earlier conspiracy, which included kidnapping, bribery and obstruction of justice. Because the older crimes dated back more than five years, the men, thus, could not be prosecuted for them.
“The government’s case against these defendants stretches federal racketeering and conspiracy law to the breaking point,” Judge Weinstein wrote.
Judge Weinstein had also decided that the earlier conspiracy ended when the two detectives retired and left the New York area and other co-conspirators were arrested.
But the Circuit disagreed. While there are few people who will feel much by way of sympathy for Eppolito or Caracappa, the decision is another in that long line of outcome oriented holdings that shows why bad facts make bad law.
Conspiracy, already a concept with so few limitations as to be a catch-all that can ensnare anyone against whom no evidence exists of the actual commission of any crime, has now been stretched yet further on a particularly suspect basis: Money.
Judge Kearse, in the decision, cited the payments to the detectives as one factor that supported the prosecution’s view that the conspiracy spanned the entire period of the indictment, from 1979 to 2005.She said that the jury had been told the principal purpose of the enterprise, as the indictment charged, was to generate money for the detectives, through legal and illegal activities.
Judge Kearse also noted that prosecutors had told the jury that the two men had “received money for each crime in New York, and they broke the law for money in Las Vegas.”
Thus, she ruled, the jury could have inferred that the conduct was “sufficiently similar in purpose” to show that “the enterprise that began in New York continued to exist in Las Vegas.”
Let’s follow that reasoning more closely. These scum committed crimes, ranging from kidnapping to murder, in the 1980s and 1990s for money from the mob. These scum committed crimes in 2004 and 2005 for money. This conduct was similar because the purpose was to obtain money. Therefore, it was an ongoing conspiracy.
Now Judge Kearse isn’t new to the game. She knows that crimes are often committed for the purpose of obtaining money. This is not a unique purpose. So concluding that these crimes were committed for financial gain is, well, ridiculous. It indicates nothing. It provides no connection whatsoever between a conspiracy that happened when they were on the NYPD payroll as well as the mobs, and their decision years later to return to committing crimes wholly unrelated to what they had done earlier.
As I walked around the Eastern District courthouse yesterday, I couldn’t find a single person who thought the Circuit’s decision made any sense at all. I also couldn’t find a single person who was surprised that Judge Weinstein was reversed and the conviction reinstated.
I also couldn’t find a single person who believed that there was any stopping the government from manipulating the concept of conspiracy to get someone when they had nothing else. Conspiracy is just a big, black hole into which all those defendants for whom no actual crime applies, fall.
That Eppolito and Caracappa fell into the hole will not, per se, cause anyone to lose sleep. That the hole is there should keep all of us up at night. This is a terrible decision, and worse still that no one is surprised.
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Y’know, this reminds me of your rant about the justice courts and how people don’t need to be a lawyer to get elected to them, and how those courts often rule according to “gut feel” rather than the law. It appears that sometimes the difference between those courts and the “real” courts is that the “real” courts stuff a buncha pseudo-legalese babble into their decisions. Rule of law? It would be a good idea :-(.
I dunno. It’s sort of like sausagemaking. If you watch a real, pro sausagemaker turning a pig into tasty little tubes of porky goodness, you might find it disgusting, and you might even see some fingers occasionally going into the mix . . . but that doesn’t mean it’s going to go better if somebody else does it with a chainsaw in his back yard.
At the very worst, in this case, the judges involved did a lot of thinking and researching before they rationalized themselves into doing what they wanted to do anyway.
Not that I’m all that fond of Jack Weinstein, mind you; he’s been known to do the same thing on gun cases, which is why when the antigun lawyers go venue shopping, they pull the cart right up to his courtroom when they can.
Although, to be fair — and as unfond of him as I am on those issues — I’d stand up if he walked into a room (and I’m not just talking about his courtroom); he was one of the folks on the side of the angels in Brown v. Board of Education.
People are complicated.
From what I understand, the burden is on the dirty duo to prove that they withdrew from the conspiracy. Now considering they claimed they were innocent and there is no record where they can show that they withdrew, and considering they continued their money grubbing, law breaking, evil ways, the conspiracy never ended. Consider this: they even lived across the street from each other….So even if you agree with Judge Weinstein, and you are entitled to your opinion, the beauty of this law and justice system is that in this case two very evil and very deserving men will now rot in prison for life. And the only way they could have avoided this fate is if they would have proven in court that they did indeed end the partnership they started in the 80’s whose goal and purpose was and still is to get money for crimes. On a side note: Had the appeals court agreed with Weinstein, these guys would have been rearrested and tried by the State for murder which has no statute and they would have certainly, with all the evidence, been convicted. Be thankful the state does not have to spend another dime on these scumbags on another drawn out trial.
Your understanding of withdrawal from a conspiracy is wrongly applied in this case, but more importantly, your elevating how despicablt these two were (and no disagrees with you) to cloud the proper application of law. Therein lies the flaw, and the danger. Not for their sake (as they don’t personally deserve it), but for everyone else’s.
Scott,
I’ll let your comments on the factual merits of the case go – this isn’t the place for me to comment on that – but to corroborate your overall view of the decision I recommend that you, or any other interested party, count the number of times that the court used “emphasis added” in the decision. They took every expansive decision regarding any of the RICO elements or of conspiracy and underlined the most expansive language in the cited decision.
As to Stephen Caracappa, all of the intervening conduct between the New York acts and the Las Vegas acts was legal, except for the four words used at a 2005 business meeting that allegedly expressed accord with a snitch’s FBI preapproved proposal that legal investors could be brought into a legal business deal if provided with ecstasy. The “associate of Caracappa” that was to provide the drugs was the young man who repaired his home computer, not some criminal associate.
You’re right to be sleepless over this one. Since the decision relied on the use of language in the indictment that was so expansive as to be meaningless, and on language in those so impressively numerous cited case that was equally expansive, we now face the unwelcome prospect that every indictment will be similarly drafted and that the charged conspiracy will be held to continue unto the grave, if not beyond, unless the one time conspirator announces his crimes from the rooftops and proclaims his renouncitation of the requesite intent (as he or she is led away and prosecuted on evidence based on statements against interest).
Dan,
I heard from Andrea as well, and I’ll say again what I told her. Unfortunately, the time to argue an entirely different set of facts isn’t here and now, but at trial. As you know, that didn’t happen. Rather than distract attention from the Circuit’s decision, and unless and until the defendants are in a position to mount a factual defense, those of us on the outside must live with the government’s set of facts. We have no alternative.
As to the decision, I believe that you and I are on the same page, in agreement that the extension of the conspiracy to Las Vegas was utterly baseless, even on the government best factual argument, so I’m unclear by your tone why it seems as if there’s some disagreement here. It almost seems as if you’re trying to challenge those in agreement with you to “think again.”
I appreciate your additional commentary and specificity on the decision, and hear that you and Joe Bondy did a great job on the appeal. This decision must have been a very hard blow.
Maybe I’ve become befuddled with age, but I thought it was clear that I was 1) not attempting to engage on the facts (except to emphasize that the court did misconstrue, or misrepresent, the facts relevant to the decision), and 2) was in complete agreement with your overall take on the case — that it was a frightening expansion of an already overly expansive area of 2d Cir. jurisprudence.
Thanks for the compliment.
Dan