“All of these men are having a big secret meeting and there they are talking to each other, walking up and down the street, walking back and forth. That’s the secret society. They came and went as they saw fit. Does any of that make sense to you? Macedonio asked.
There were a few pictures of what the government said was a Bonanno crime family meeting but even when that was shown, Asaro was not there, the lawyer noted. While the FBI watches Mafia funerals and weddings to glean intelligence, the findings were hardly surprising to the lawyer. Asaro did show up at his uncle Michael Zaffarano’s funeral but then again that was his uncle. When Cathy Burke showed up at her father’s funeral, well what would you expect, that was her father, said the defense attorney.
“The government claims these wakes were important Bonanno family and broader Mafia events. That’s absurd. Surveillance photo after surveillance photo, trying to make it appear as if something nefarious was going on at a public wake,” Macedonio said as if to mock the government surveillance.
Far from being a loyal mob member, Asaro was a free agent, a rogue who did what he pleased. When he wanted to, Asaro lived outside the roles of the Mafia, and if he associated with people the government said were in organized crime, so what, said Macedonio. It is not a crime to associate with someone the FBI doesn’t like.
The lynchpin to the prosecution’s case had been Valenti, and Macedonio had to neutralize his testimony. She attempted to do that by showing Valenti (and the other cooperators) were mercenary liars who, even if they had taken dozens of lives, can get a chance at a life outside a jail cell if they tell the government what it wants.
“In fact, the government has become the pension plan for organized-crime figures. When you’re down and out, yes, the FBI will always take you and support you,” argued Macedonio. “Here’s Gaspare Valenti’s motto in life: The more you tell them things, you make up stories, you know, they’ll give you more money. That’s pretty telling, isn’t it?”
There were instances where Valenti admitted on the witness stand lying to the FBI to puff up his connections to the mob, and Macedonio reminded the jury about this. By doing so, she was planting the seed in the minds of jurors that even when he had an obligation to be truthful, Valenti could not be relied upon fully.
The defense attorney also underscored that many of the people Valenti had testified about—Jimmy Burke, Paul Vario, Thomas DeSimone, the elder Jerome Asaro, Michael Zaffarano—were all dead and not around to contradict him.
“So, is it any kind of stretch to think that Gaspare Valenti couldn’t sit on that stand a couple of days and lie to you? No, not at all. He did it for years,” Macedonio argued to the jurors, reminding them of the way he had defaulted on his debts, stolen money, and tried to escape his troubles and family by fleeing to Las Vegas.
Attacks on witness credibility are standard tactics for defense attorneys. But there was specific evidence, particularly about Lufthansa and the Katz murder, that Macedonio had to refute in her summation. Jurors might not like a witness or question motives but in the end, if the testimony was credible, well, the jury still might convict.
In the case of the Katz murder and burial, Macedonio stressed again that there was no one else alive who could verify Valenti’s story. The only evidence that Asaro said he and Burke killed Katz came from the mouth of Valenti. But there was also evidence, from Katz’s missing person’s report, that on the day he disappeared that he went to see fellow criminal Joe Allegro, someone, Macedonio said, there was no evidence Asaro knew.
Picking apart Valenti’s claim that he agreed to meet Asaro and Burke on a Sunday at one of his empty model townhouses, Macedonio said that didn’t make sense because such a day is a busy day for showing homes to prospective buyers. The defense also pointed out contradictions in what Valenti said on the witness stand and to the FBI about driving with Asaro to get a truck after the burial of Katz’s body, the moments when the defendant supposedly blurted out the name of the dead man. While Valenti testified that Asaro blurted out Katz’s name and that he had killed him with Burke, notes of FBI agent Mininni indicated that Asaro was not in the vehicle.
“This is a major change because it’s that ride that Gaspare . . . that Gaspare Valenti claims that Mr. Asaro told him that he had murdered someone. But that is not what he told the agents,” said Macedonio.
The defense attorney also disputed the government’s notion that the last conversation Asaro and Valenti had on June 17 indicated that the defendant suddenly knew his cousin was an informant. Instead, contended Macedonio, Asaro is actually telling Valenti that he was in big trouble and not to call him anymore.
Turning to Lufthansa, Macedonio noted how defense witness Kerry Whalen, who admittedly had antipathy toward the FBI, flatly contradicted Valenti about the incident in which Whalen was abducted outside the cargo terminal as the heist occurred. Valenti had testified that he and Frank Burke were in the van and abducted and struck Whalen with a handgun. But Whalen testified that he was certain he identified Sepe and DeSimone as the two men in the van. Whalen had no incentive to lie in the case, argued Macedonio.
She also attempted to make Valenti’s claim that Asaro was waiting in a crash car one mile from the airport sound implausible. Since the night of the heist was in the era before cell phones and there was no evidence anyone had walkie-talkies, it seemed crazy that Asaro would have been somehow waiting incommunicado in an area filled with highways to act as a diversion for pursuing cops, said Macedonio.
“Does that make any sense?” the attorney asked.
Macedonio also challenged Valenti’s story that some of the cash was hidden in door jambs inside his house. That, she said, didn’t make any sense either. Each time he would have needed cash Valenti would have to do construction, something that would be noticed.
* * *
“Now, how does that make any sense?” Macedonio again asked.
But Valenti’s selling point for the prosecution was that he knew a lot about Lufthansa. How would he know so much if he wasn’t involved just like he said he was? Macedonio’s answer was that he did know people like Angelo Sepe and Thomas DeSimone, two big players in the heist. It is possible Valenti was involved, she admitted. But the inconsistencies in his story about Asaro made him an unreliable indicator of his cousin’s guilt or innocence, she argued.
Asaro did make some comments on tapes, which appear to be circumstantial evidence that he was involved, at least that is what the government argued. But the comments were proof of nothing, said Macedonio. The government also argued that by his silence at times on the recordings that Asaro was admitting complicity in whatever crime was being discussed. It was an argument Macedonio said the prosecution was making out of desperation.
“When the defendant says nothing, that’s proof, that’s proof he participated. Okay, so now silence is proof beyond a reasonable doubt,” she added sarcastically.
The indictment contained numerous charges about loansharking and extortion, but none of the alleged victims, save for John Zaffarano, were called as witnesses, a glaring omission Macedonio pointed out. And when Zaffarano took the stand he didn’t help the government’s case.
“And what did he tell you? He told you he wasn’t a victim of loansharking or extortion,” said Macedonio.
“The bigger picture here, quite frankly, is that the government took anything that they could that had to do with money and through Gaspare Valenti, made it sound like Mr. Asaro was extorting everybody, but that’s simply not the case,” Macedonio argued.
In closing, Macedonio didn’t back away from Asaro’s prior car-theft-ring conviction, his ill-tempered remarks, and weird lifestyle. He marched to his own drummer and wasn’t a loyal mob operative, she said. Sometimes the government gets it wrong. Take away Gaspare Valenti and Asaro wouldn’t be found guilty of anything, the attorney said.
Macedonio’s summation was only about two hours long, a welcomed change from the nearly full-day presentation made by Cooley. As is the practice, th
e government got a chance to offer a rebuttal and Argentieri spoke this time, arguing that indeed other witnesses did corroborate Valenti’s version of the Lufthansa heist. She pointed out Vitale’s recollection about taking Massino to pick up heist jewelry from Asaro and the testimony of Ruggiano, whose father admitted fencing some of the jewels through his Manhattan store.
Asaro may think he was a guy who marched to his own drum, but he was still part of the band—the Bonanno crime family, the prosecutor insisted.
It was after lunch that Ross charged the jury on the federal law that would control the deliberations. To the layman, sitting through a jury charge can be as tedious as watching paint dry. But a good charge is like a Rosetta Stone for jurors, guiding them through the deliberations by giving them the law that the facts have to fit when they weigh a defendant’s fate. It only took Ross about ninety minutes to read the instructions, and then she had the jurors retire to begin their deliberations. They only had about an hour left for business on November 9, not enough time to decide anything important, before they went home.
CHAPTER TWENTY-TWO
“FREE!”
IT WAS ABOUT 2:55 P.M. ON NOVEMBER 12, 2015, that word began to spread like wildfire in the Brooklyn federal courthouse that a verdict had been reached in the case of Vincent Asaro. Reporters scurried to the eighth-floor courtroom of Judge Ross, followed quickly by the prosecution and defense teams. Not counting the one hour or so the jury had deliberated on November 9, the panel had been at work for about fifteen hours deliberating the case. That was not a very long time. In criminal cases, a quick verdict can mean either that evidence of guilt was overwhelming and easily decided or that the case didn’t convince anyone about the defendant’s guilt. It is hard to tell with a jury.
There was an indication that the jury was having trouble when the panel asked in a note if they could have copies of the summations. That is not allowed under the law but the fact that the jurors needed to hear all the closing arguments again suggested they were confused about how to sort out the evidence. But after that, things seem to settle down. Still, such a quick verdict in such a complicated case was puzzling.
After the courtroom filled up and Ross was on the bench, Asaro, wearing a charcoal gray sweater and dark slacks, was brought out from the holding cell. His face didn’t betray any emotion, but he seemed resigned to hear his fate. He was rubbing his hands together as if he might have freshened up in the back cell with a hand sanitizer. Just before 2:58 P.M., the jury trooped into the courtroom. There were twelve of them, and it was impossible to detect in their faces and body language any hint about how they had decided. Macedonio glanced over at the prosecution table and she saw stress on Argentieri’s face.
“Let me before I go any further just assure myself, is your verdict unanimous?” Ross asked.
“Yes,” replied the jury foreman.
Ross was given the six-page verdict and read through it rather quickly, very quickly.
From the way Ross seemed to go fast through the six pages, which contained fourteen racketeering acts for the first count of the indictment including Lufthansa and the Katz murder, Macedonio believed that the defense didn’t just win a few counts, it had won them all. Sometimes courtroom deputies ask the jurors to announce their verdict. But in this case, Ross herself asked the jury foreman the questions everyone wanted the answers to. She handed the pages back to the foreman. The courtroom was deadly quiet as Ross spoke.
“As to count one of the indictment, racketeering conspiracy under federal law, how do you find the defendant, guilty or not guilty?” Ross asked.
“Not guilty,” the jury foreman answered.
There was a gasp from some in the audience. Did we hear that right? The acoustics in the courtroom weren’t the greatest, but it sounded liked “not guilty.” With an acquittal on the racketeering count, the jury didn’t have to say if the separate racketeering acts—including Lufthansa, the Katz murder, the Zaffarano property extortion—had been proven or not proven. They were now all irrelevant. The big heist, the subject of so much media hype and attention, had been tossed out by the jury.
Ross then asked the jury about counts two and three, which involved an extortion conspiracy over the collection of a debt and the actual collection of that debt. The jury foreman had the same answer, erasing any doubt about what everyone had heard a moment earlier, “Not Guilty.”
There was stunned silence in the courtroom. Asaro had a blank look on his face and started to look around. First left, then right. He was confused. Since the indictment contained so many racketeering acts, Asaro expected a much longer verdict reading. He didn’t hear what had happened and didn’t know he had won a rare victory. Finally, Asaro turned to his left and asked his paralegal Sam Tureff what the hell was going on. With a smile on his face, Tureff leaned closer to Asaro and told him. Asaro turned to Macedonio for confirmation, and she told him the same thing.
“That’s it, not guilty, you are going home,” she told him.
It was as if Asaro had a surge of electricity jolt through his body. His eyes suddenly shot wide open, and he slapped his hands with glee on the table in front of him. Jumping up out of his seat, saying “I can’t fucking believe it!” Asaro embraced Macedonio and planted a kiss on her lips and then made as if he was going to walk right out of the courtroom until the federal marshals restrained him and had him sit down.
Ross said she didn’t think it necessary to poll the jury panel and took the verdict sheet back, thanking the jurors for what she said had not been an easy trial. She then dismissed them, with the remark, “Have a nice rest of the week.”
After Ross thanked and dismissed the panel, she had one more piece of business, to dismiss the alternate jurors who had been kept apart from the regular panel during the deliberations. She told Asaro and everyone else to sit down.
“Thank you very much!” Asaro exclaimed.
Over at the crestfallen prosecution table, Argentieri’s stomach felt like it had dropped to the floor. She and her co-counsels, as well as FBI agents Ypelaar and Mininni, gathered up their files and walked out the courtroom door. They said nothing. Some of their colleagues seated in the public gallery and who were likely expecting a quick conviction in the year’s biggest criminal trial looked like someone had just shot their pet dog.
With reporters tweeting the verdict back to their newsrooms, word of the acquittal shot around the world almost instantly. News camera crews had already been staking out the courthouse at Cadman Plaza East, but as word spread of Asaro’s astonishing victory, more cameras rushed to the courthouse. It would take about a half hour for Asaro to be finally discharged by the marshals so he could walk out the door, a man who for the first time in seventeen months could sleep in his own bed. With Macedonio smiling to his right and Ferrone beaming to his left, Asaro looked at the gaggle of reporters and smiled.
“Free!” said an exuberant Asaro, holding his arms wide as if to signal a touchdown.
Stepping to a microphone stand set up by reporters, Asaro had each of his arms around his attorneys as he gave a short, celebratory statement.
“I want to thank my two lawyers. Without them I wouldn’t be here now. I’d like to thank the U.S. Marshals Service for treating me great,” said Asaro, referring to the people who specially arranged to drive him to court each morning.
“I can’t say the same for the FBI,” he added.
Anxious to get her client on his way, Macedonio told the reporters that Asaro wanted to go home and spend Thanksgiving with his family.
“I’ve got two years here, and I am dying to get home,” added Asaro.
As he walked across Cadman Plaza Park, followed by a troop of reporters and cameras, Asaro admitted that “I was shocked, really shocked” at the verdict, an indication that he had been resigned to defeat.
“After two years it feels great, two years in here for nothing. I should have never got arrested,” Asaro told the reporters who walked with him across the plaza.
; A white sedan was waiting for Asaro and his lawyers at Cadman Plaza West. As Sam Tureff opened the trunk to place in some legal briefcases, Asaro couldn’t resist a bit of strange, mob humor for the benefit of the press. It seemed his way of mocking the government for attempting to portray him as a homicidal monster.
“Hey Sam, make sure they don’t see the body in the trunk!” quipped Asaro.
* * *
After the verdict, Asaro was driven to a daughter’s home in Franklin Square, Long Island, where a meal of spaghetti and clams awaited him. It never tasted better. Meanwhile, Argentieri, Cooley, Gerdes and the rest of the prosecution team repaired to the local O’Keefe’s Restaurant on Court Street in Brooklyn Heights to lick their wounds, commiserate, and try to figure out what had happened in a case that could have been a crowning moment in their careers if they had won.
The government lawyers weren’t the only ones scratching their heads over the acquittal. Since the jury was anonymous and elected not to talk with reporters after the verdict, the true reasons for the decision would likely remain unknown forever. But there were plenty of theories, some more plausible than others and many revolving around the way the case was constructed by the government.
On the street, according to one source familiar with the world of organized crime, some in the Bonanno crime family speculated that somehow Asaro must have compromised the jury. There had been a case in the past with the late John Gotti where jurors were tampered with. But with Asaro that theory is about as far-fetched as they come. Even if he wanted to, Asaro didn’t have the money or the help to pay off anybody and the federal government had learned, after the Gotti experience, to be extra careful and use anonymous juries in mob cases.
The Big Heist Page 24
