Josephine Massino and her two daughters parked in a nearby indoor lot. As they crossed into the park, the photographers began to buzz about their arrival and started photographing them in a flurry of activity. One image captured Josephine Massino peering over her sunglasses as she realized the anonymity she had enjoyed over the years as a Mafia wife was now gone. Her daughters, who had paused in the park while Joanne bent down to tie her shoe, walked by the phalanx of photographers moments later. They walked together, looking a little bewildered and defiant.
Inside, Judge Nicholas Garaufis came into the courtroom at 10:15 A.M. and called the case to order. Massino sat at the defense table with Breitbart—Flora Edwards was delayed because of a traffic problem. At the prosecution table were Assistant U.S. Attorneys Greg Andres and his two cocounsel, Mitra Hormozi and Robert Henoch. Also seated at the prosecution table were the two FBI agents whose number crunching and investigation had started the chain of events that led to this particular day: Jeffrey Sallet and Kimberly McCaffrey. Seated with them was Samantha Ward, a paralegal who worked on the case and helped prepare it for trial.
After some housekeeping matters were discussed, Garaufis took one last look around the courtroom.
“We’re ready, everyone?” Garaufis asked.
“Yes,” answered Andres.
“Let’s bring in the jury,” Garaufis ordered.
CHAPTER 20
“They Didn’t Die of Old Age”
Robert Henoch was known to some as “Colonel” for a very good reason. He was one.
A slender, bespectacled man, Henoch was a lieutenant colonel in the U.S. Army Reserves while he worked as a prosecuting attorney. Low keyed in court, Henoch honed his skills after graduating from George Washington University School of Law in 1993 in the office of Manhattan District Attorney Robert Morgenthau.
The Manhattan District Attorney’s Office is one of the biggest and most visible prosecutorial offices in the country and a lot of the young lawyers who work there wind up doing well. A good attorney can make a career in public service there and many have gone on to major government jobs, including Henoch’s top boss, Brooklyn U.S. Attorney Roslynn R. Mauskopf.
Still, as rewarding as a local job in the district attorney’s office can be, an attorney who likes criminal law and prosecuting cases can use it as a springboard to the next level up, the job of a federal prosecutor. Henoch, who sharpened his skills doing homicide investigations and trials in Morgenthau’s office, took the plunge by joining the Brooklyn U.S. Attorney’s Office in 2002.
Among the prosecution team Henoch was the newcomer. Greg Andres had joined the office in 1999, while Mitra Hormozi had signed on in 2001. Even though he was the baby of the team, Henoch knew his way around a courtroom and with his military background—he served in Qatar during the Second Gulf War—he wasn’t intimidated by the need to address a jury. It fell to Henoch to deliver the opening statement against Joseph Massino. Even David Breitbart was impressed by what he saw.
Speaking as though he was addressing a general staff at the War College, Henoch didn’t have to use notes. Standing straight and looking directly at the jurors, he told them just how bad he thought the defendant was.
“This trial is about the vicious, violent, cunning and murderous rise to power of Joseph Massino,” Henoch said in the first seconds of his opening remarks.
Pow. That kind of opening remark summed it all up and if he wanted to just set the scene with one sentence, Henoch could have sat down at that point. But openings are used to tell juries what the evidence will show that supports the government’s view of the defendant and in the case of Massino there was a lot to tell.
Some lawyers rely on notes, but as Henoch stood in front of the jury box, his eyes scanning the members of the panel, he spoke with not a piece of paper in sight. He had effectively memorized what he had to say. Pointing to Massino, Henoch said that he was the boss of the Bonanno crime family, an organization that made money through crime: loan-sharking, gambling, arson, extortion, racketeering, and murder. Massino started off as a lowly associate in the mid-1970s and steadily worked his way up the chain to soldier, captain, and finally the boss of what Henoch said was “a criminal organization that acts outside the laws of the United States and the laws of New York State.”
Massino had been boss for over twenty-five years and didn’t suffer fools gladly. It was at that point in the early moments of his opening statement that Henoch spoke about the men whose deaths the government believed Joseph Massino had engineered: Philip Giaccone, Alphonse Indelicato, Dominick Trinchera, Dominick Napolitano, Cesare Bonventre, Anthony Mirra, and Gabriel Infanti.
“Indelicato, Infanti, Trinchera, all these men, they didn’t die of old age, they didn’t die of cancer, they died because they were a threat to the defendant in his struggle for power and control over this family,” said Henoch.
Henoch ticked off a host of racketeering acts that Massino had been charged with and for five minutes went over again the various murders, extortions, arsons, gambling rackets, and other crimes the government intended to prove.
How was the government going to prove the case against Massino? Henoch told the jurors that “cooperating witnesses,” men who had committed crimes and were arrested, would be trooping into the courtroom to say what it was Joseph Massino had done. There would be other evidence that would corroborate what the witnesses would say, he added.
It is obligatory in Mafia trials that the government attempts to sketch out for the jury the organization structure of an organized crime family. This is done because indictments, such as the one against Massino, allude to a crime family that has a structure that harkens back to the old days of Salvatore Maranzano and his fascination for organization based on the Roman legion.
Cosa Nostra, said Henoch, is an Italian phrase for “Our Thing” or as some say “This thing of Ours.” But it is also known as the Mafia, which in New York is comprised of the Lucchese, Colombo, Gambino, Genovese, and Bonanno families, Henoch explained.
Massino may have gotten his hands dirty as a lowly member of the family in the early days, but as he moved up, he became more careful to protect himself. By the 1990s, Henoch said, a cautious Massino didn’t want people referring to him by name because of the prevalence of wiretaps and bugs.
“He puts out the word, that if you are going to refer to me, touch your ear,” said Henoch.
Massino also expected respect, the prosecutor said. Pulling out a chart of the Bonanno crime family hierarchy, Henoch explained that the lowly soldiers and associates had to show respect by giving Massino a cut of the profits in exchange for the protection his rule afforded them.
“So if you are down here, committing crimes,” Henoch said, pointing to a soldier’s position on the chart, “you have to pay up the chain. Money sort of defies gravity in the Bonanno family. It flows upward. It doesn’t flow downward.”
For several minutes, Henoch explained for the jurors the ways of mob life. He alluded to how the Mafia family had a chain of command much like the army that had to be followed. Associates talked to soldiers, who then talked to captains. When disputes arose, Henoch said, there was a “sitdown,” a conference or negotiation.
“It is sort of a mechanism used to control the victims of greedy and violent men,” said the prosecutor. “That is essentially what a sitdown is.”
For most of the morning, Henoch explained the ways of the mob for the jury and then went into his summary of the Bonanno crime family history and the bloodshed that was a part of it. Rastelli was portrayed as a key individual in Henoch’s remarks because the late Bonanno boss was the one who elevated Massino to the position of captain after Carmine Galante was killed in the first power struggle of the era. In 1981, factional fighting led to the deaths of Trinchera, Giaccone, and Indelicato, said Henoch, and it was Massino who did Rastelli’s bidding and orchestrated the murders.
The embarrassing revelation in 1981 of the Joseph Pistone undercover FBI penetration of the Bonanno fa
mily caused trouble for three members of the clan: Dominick Napolitano, Anthony Mirra, and Benjamin “Lefty Guns” Ruggiero. While Ruggiero got lucky and was arrested in August 1981, Mirra and Napolitano weren’t and wound up dead.
An important element of Massino’s hold over the crime family, according to Henoch, was the fact that Massino inducted his captains and soldiers into the family and sometimes even their sons.
“That is going to minimize the chances, by the defendant’s estimation, of those people cooperating against him,” said Henoch.
With lunchtime looming, Henoch then revealed how the FBI agents began their financial investigation of the Bonanno family and discovered how Barry Weinberg was getting checks from Salvatore Vitale and Massino. It was in this description of the genesis of the investigation that Henoch spoke to the jurors for the first time the names of the key mob turncoats who would be taking the witness stand. With Weinberg unmasked and found to owe millions in back taxes, he cooperated against Frank Coppa and Richard Cantarella, two captains who had been appointed as part of a committee to run the crime family in the 1990s, said Henoch.
Charged with extortion, both Coppa and Cantarella gave “tons and tons” of information to investigators about organized crime. They turned on everybody and talked about Salvatore Vitale, James Tartaglione, and others. From there, other things happened, explained Henoch, leading in 2002 to “something truly extraordinary.” Though he didn’t say his name, James Tartaglione, a captain in the crime family, decided to wear a wire.
“This wire, you’ll hear some of these recordings, is truly extraordinary,” said Henoch. “They show that this enterprise exists, they show that the defendant is associated with it, they show that there’s a pattern of racketeering activity that’s been going on during the course of this indictment. They are really a window onto the soul and inner workings of the Bonanno family.”
Stomachs were grumbling and jurors, along with the press, spectators, and Massino, who was looking forward to lunch brought in by his wife, were shifting in their seats waiting for Henoch to end his opening remarks. He wrapped it up fairly quickly, asking the jurors to use their common sense, reason, and logic to make a decision. Henoch said he was confident that the jury would find Massino guilty on every single count in the indictment.
It had been a good opening statement, delivered by Henoch in a crisp style that echoed his military experience.
But Breitbart had a problem.
The defense attorney objected to Garaufis that Henoch didn’t indicate to the jury “one iota” how he intended to prove the charges. Instead, the government attorney spouted a first-person story of what he believed to be the history of Joseph Massino and the Bonanno crime family, said Breitbart. The result was a faulty opening because Henoch didn’t indicate what any witness would say, something that was the sin qua non of an opening statement. “For those reasons I move to dismiss,” said Breitbart.
The defense attorney’s move was an unexpected gambit and seemed to take Greg Andres, the lead prosecutor, momentarily by surprise. But he then rebutted Breitbart by saying that indeed Henoch had said that there would be the testimony of Massino’s accomplices, documentary evidence, and other things. The government was under no obligation to spell out what each specific witness was going to say, said Andres.
Garaufis had an easy way out of the situation. He simply reserved his decision and asked Breitbart to come back at some point with case law and court decisions that dealt with the subject. With that, the court adjourned for lunch and the jury left the courtroom. Massino was passed a bag by the marshals that contained his lunch since he was allowed to eat in the courtroom and work with his attorneys. To keep prying eyes away from Massino as he ate, the marshals taped white paper over the windows in the courtroom door.
After lunch, the defense had its turn at an opening statement and that fell to Breitbart. The defense attorney was not a tall man, but he had a nonchalance that gave him an easy manner when addressing a jury. He recognized right from the start that Henoch’s opening, with all the talk of murder, arson, and other crimes, had made Massino look like evil personified. But since Massino had pled not guilty to the charges, he had put in issue every fact that was going to come from the mouths of the witnesses.
Breitbart readily acknowledged that while Massino may be the boss of the Bonanno family—the attorney stayed away from the term crime family—that in itself wasn’t enough to convict him of anything.
“They must prove the underlying acts contained in the indictment, to satisfy their obligation and their burden with regard to proof,” said Breitbart about the government’s need to prove the case.
Since Breitbart had been one of the defense attorneys in the 1982 federal trial involving the conspiracy to murder the three captains, he had the ability to refer back to that case, and he played it to the hilt by pointing out that the Massino trial was the third time the homicides were being tried. The first time in 1982 involved “Sonny Black…Jimmy ‘Legs’ Episcopia and Nicky Santora and Anthony Rabito and Anthony Ruggiero.” But Breitbart then said something that was puzzling. Not only was he wrong about Episcopia being convicted of the murders (he pled out to a different racketeering act) but he also implied that somehow the FBI learned that the case was “all nonsense.”
Turning to the 1987 federal trial of Massino, Breitbart told the jurors that he was prosecuted for the conspiracy to commit the murder of the three captains and that a jury found that the charge was not proven.
“And now they come up with a new theory in 2004,” said Breitbart to explain why the three murders were still an issue. “He’s charged not with the conspiracy to murder, but with the murder, that he was an active player or an aider and abettor, that he was involved in the shooting of those three men.”
Breitbart’s point was that Nicholas Santora, who had been convicted in the 1982 case, was said by new witnesses not to have been involved in the murders.
“The FBI makes mistakes,” said Breitbart. “Often they do it intentionally.”
The attorney also took a stab at telling the jurors that information about some of the homicides charged against Massino was all screwed up. Breitbart said Dominick “Sonny Black” Napolitano had size seven shoes but that the body found in Staten Island had size eleven feet, according to postmortem X-rays. Witnesses would testify that Napolitano was shot a total of four times, but the body found had only one bullet that appeared to be a .45 caliber, which was not the caliber mentioned by witnesses. It was these inconsistencies and contradictions that Breitbart hoped would plant reasonable doubt in the minds of jurors.
The FBI believed Cesare Bonventre was killed because of Massino. But Breitbart stated that the dead man was not only a drug dealer but he also had a sideline of kidnapping people for ransom. The old Bonanno boss, Philip Rastelli, had been angered by Bonventre’s kidnapping spree and that was why Rastelli ordered the Canadian captain killed, said Breitbart.
So it went with each homicide. Breitbart trotted out information that ran counter to the theory that Massino had the motive to order the murders.
Well aware that the government’s main ammunition against Massino was the words of the witnesses, Breitbart suggested strongly to the jury that each of them had a motive to lie. What was worse, he said, was that they had been manipulated into turning on Massino.
“How do they recruit a witness? Do they bribe them? Do they torture them? You better believe it,” the attorney said.
Those remarks brought an instant objection from Andres, but Garaufis let Breitbart soldier on, even to the point where the defense attorney made the grandiose promise that “I am going to prove to you that the same methods being used in Iraq” were being used in the federal jails where the witnesses were kept before they began cooperating against Massino. Sleep deprivation, solitary confinement, constant surveillance, and promises of leniency on sentencing were all the techniques the government used to get the witnesses to cooperate and testify.
Breitbart
’s remarks about Iraq refered to the Abu Ghraib scandal involving mistreatment of Iraqi prisoners by U.S. military forces, something that had recently been in the news. The reference to Abu Ghraib drew gasps from some spectators and smirks from some in the news media. The Gulf War reference seemed overblown. Breitbart was going to have to really make good on that claim.
The point Breitbart wanted to drive home was that the witnesses had committed numerous murders but that they could get special letters that might help them get light sentences.
“Is that seduction? Is that bribery? Is that torture? I most respectfully suggest it is,” he said.
The mobsters who turned on Joseph Massino, Breitbart noted, were each “a master at the lie” as shown by the fact that they had lured various victims to their deaths by lying.
“Do you think they say to Tony Mirra, ‘Tony, come with me, we are going to shoot you in the head twice,’” said Breitbart. “No, they have to be so convincing, they have keep a straight face, they have to contort themselves in a way that will convince the individual [victim] that they are going for a joyride, they are going for an important meeting, they are going for a meal, they are going for a drink.”
The bottom line for the mob witnesses, said Breitbart, was that all they had to do was say, “Joe [Massino] told me to do it,” and they could go home once the judge gave them a light sentence no matter how many murders they did.
Breitbart concluded his opening remarks by saying the seven homicide charges against his client were a sham created to make what was a gambling case into something bigger. He told the jurors they would discover that for themselves and vote to acquit Massino.
King of the Godfathers Page 24
