King of the Godfathers Page 23

  “Not my guys,” said Massino, referring to Spirito and DeFilippo.

  But Massino was ignoring the obvious. Turncoats had already occurred in his ranks—Coppa, Vitale, Lino, and Tartaglione had already become cooperating witnesses. They had put Massino in a bind for five homicides. There was also something else for him to worry about.

  FEDS MULL WHACKING MOBSTER, said the Daily News headline for a 388-word story on page nine in its August 21, 2003, edition. The item said that for the Sciascia murder, Massino, DeFilippo, and Spirito could face the death penalty. “If U.S. Attorney General John Ashcroft authorizes Brooklyn prosecutors to seek capital punishment, it would mark the first time an alleged boss of a New York crime family faced possible execution by the government,” the story by reporter John Marzulli stated.

  On Eighty-fourth Street in Howard Beach, Joanne Massino was sleeping late. Since her divorce, she hadn’t worked much, but in the summer months she had a full-time job of sorts figuring out things to do with her son and daughter. The children would write to their grandfather at the Brooklyn federal jail but really didn’t know the full import of what had been happening. Their mother kept the worst of the news from them.

  Up the stairs of Joanne’s two-story modern home, built on land she had been given by her mother, came her ten-year-old daughter. The child was going to treat her mom to breakfast in bed and the morning newspaper, which was rolled up and held fast with a rubber band. Joanne thanked her daughter and still in bed opened up the paper. The item on page nine gave her a start. She was puzzled by what she read. New indictment? Death penalty? Joanne hadn’t heard of the new charges. But the words “death penalty” caused her further incomprehension.

  “With five made members of the Bonanno crime family now cooperating with the feds—including underboss Sal Vitale—the hits keep on coming for Massino,” Marzulli noted.

  Seeing her uncle’s name and reading it in the same story about the prospect of her father being executed, all thanks to Sal Vitale, sparked another rage in Joanne. Then she cried hysterically.

  CHAPTER 19

  “Let’s Bring In the Jury”

  The charges against the Bonanno crime family kept coming.

  On January 20, 2004, just a year after Massino had been charged, a Brooklyn federal grand jury returned another set of indictments as a result of evidence provided by turncoats Salvatore Vitale, James Tartaglione, Frank Lino, and Frank Coppa. This time, the government was aiming at cleaning house in a big way.

  Among those charged in this indictment were Anthony Urso and Joseph Cammarano, the two men who had been taped by Tartaglione musing about executing the families of turncoats. Urso was identified as the acting Bonanno boss now that Massino was incarcerated, while Cammarano was his underboss since Vitale was out of the picture.

  Cutting its way through the Bonanno hierarchy, the grand jury also indicted over two dozen other members and associates. The catch was impressive. Charged with various acts of racketeering were such illustrious names as Vito Rizzuto, the Canadian soldier suspected of being one of the assassins who jumped out of the closet during the murder of the three captains in 1981. Other key captains charged were Louis Attanasio, a suspect in the 1984 slaying of Cesare Bonventre and restaurant owner Louis Restivo on charges he played a role in the killings of Gabriel Infanti and crime family associate Anthony Tomasulo.

  All together, eight captains or acting captains, thirteen soldiers, and four associates of the crime family were charged. The consequences for the Bonanno family were ominous.

  “Since March 2002, the government has prosecuted more than 70 members and associates of the Bonanno family,” crowed the government news release. “Today, virtually the entire family leadership of the Bonanno family has been incapacitated, with only a few family captains remaining unindicted.”

  From one of the most insulated crime families that Joseph Massino boasted had never had a major turncoat, the Bonanno family had seen six of its made members, including the underboss, agree to cooperate with the prosecution. Massino had once decreed that the family name should be changed from Bonanno to Massino because the old patriarch, Joseph Bonanno, had disgraced his legacy by writing a book that exposed some La Cosa Nostra secrets. Bonanno died in 2002. But had he seen the way “This Thing of Ours” had become tattered, he might have sued Massino for sullying his old family name.

  The indictment cut like a scythe through the Bonanno family and there was a rush of people to take guilty pleas and hope for a break on sentencing. Vitale, Lino, and the other turncoats had made their deals with the government. So did Daniel Mongello, one of the other soldiers nabbed in the January 2003 roundup. So many gangsters worked out guilty pleas that by May 2004 there was only one person left standing who was going to go to trial: Joseph Massino.

  The trial of Joseph Massino was preceded by nearly a month of jury selection. Normally, it takes about a day or two to select a jury to hear a run-of-the-mill criminal case in Brooklyn federal district court. But in big cases, particularly where there are allegations of organized crime, the whole process takes much longer. Massino’s trial was no exception. To weed out bias or people who couldn’t fairly decide the fate of the defendant, potential jurors had to answer detailed questionnaires about everything from their reading habits to whether they or family members had ever been victims of a crime. After the questionnaires were perused by prosecutors and defense attorneys, the people in the jury pool were called into court and individually questioned about some of the answers they had given. Depending on what was said by the potential jurors, they were either dismissed from further consideration or told to stand by.

  Mafia cases in the Brooklyn federal court also invariably use anonymous juries. The practice of using such panels had come into vogue during the big mob trials of the 1970s and 1980s, when courts feared that Cosa Nostra defendants might try to bribe, influence, or intimidate juries. There was good reason to believe that could happen since John Gotti’s minions were found to have done it twice, once during his 1986 trial in Brooklyn and another time in 1990, when he was on trial in Manhattan on state charges. Both times he was acquitted.

  So, in Massino’s case the approximately 200 potential jurors who trooped into the Cadman Plaza courthouse in early May 2004 had already been given numerical designations to use on their jury questionnaires. Their identities were known by only a small group of court personnel, even though there was no indication that Massino was thinking about trying to meddle with the jurors.

  The questioning revealed some who had obvious bias against Massino, like the man who said he thought the Howard Beach gangster looked like Tony Soprano, the lead character played by actor James Gandolfini in The Sopranos show on HBO. Another man said he didn’t think loan-sharking was a crime since borrowers in the Hispanic community, where usury was common, knew that high interest rates went with such loans.

  On May 19, 2004, after three weeks of questioning, the prosecutors and defense attorneys officially agreed on a panel of twelve regular jurors—four men and eight women—and eight alternates to sit in judgment of Massino. The trial was scheduled to open on May 24, 2004.

  Criminal cases have their special rhythm. After an arrest and not guilty plea, the defense has to work out a strategy to beat the case or else fold up and plea bargain, hoping for a break. In Massino’s case, a plea was out of the question. As the man who was heir to a Mafia tradition of leadership laid down by patriarch Joseph Bonanno, Massino had always sung the praise of the crime family that never had a made member turn informant. Besides, he denied to his family, lawyers, and anyone else who listened that he had anything to do with the murders the government was trying to pin on him.

  Before jury selection even began, David Breitbart’s strategy was to first chip away at the indictment. He believed history and the law were on his side. Massino had already been charged before with complicity in the May 5, 1981, murders of the three captains—Dominick Trinchera, Philip Giaccone, and Alphonse Indelicato. In 1987,
a federal jury in Manhattan had found him not guilty of conspiring to kill the three men. To a layman, it sounded like Massino had been cleared of the murders. Well, not exactly.

  In the 1987 trial, the charge involving the murder of the three captains was a murder conspiracy charge that was believed to be one of a number of racketeering acts committed by Massino. He was not charged with actually committing the murders but with agreeing and plotting to carry out the crime. Under U.S. Supreme Court rulings dating back to 1932, the government was not prevented from bringing new murder charges against Massino because a substantive crime and a conspiracy to commit the crime weren’t the same offense. In other words, there would be no double jeopardy under the Fifth Amendment of the U.S. Constitution. It was Breitbart’s job to find a way around that rule of law.

  Breitbart was assisted in trial preparation by Flora Edwards, a former official at the City University of New York who gravitated into criminal law. Edwards liked legal research and writing and took pride in the nickname “Princess of Paper” because of the facility she had with the written word. Together, Edwards and Breitbart fashioned an argument that held that Massino’s 1987 acquittal prevented the government from now retrying certain issues decided by the jury in the earlier trial.

  A key to the defense argument was that in acquitting Massino in 1987, the jury decided that he didn’t intend to kill Trinchera, Giaccone, and Indelicato, something the federal government was now attempting to try him for again in 2004. The prosecution’s response was that the 1987 jury could have acquitted Massino of the murder conspiracy on the grounds that the government failed to prove that he joined the plot, than that the prosecution failed to prove he had the intent to kill the three men.

  It all sounded like a great deal of legal hair splitting. But if the earlier verdict was based on a lack of evidence of a conspiratorial agreement instead of on an intent to kill the three captains, then the government was within its right to bring the latest charges to trial. To decide that issue, Judge Nicholas Garaufis had to read the mind of the earlier jurors and Judge Robert Sweet based on the old trial record. After reading the transcripts, Judge Robert W. Sweet’s jury instructions, and the 1987 verdict sheet, Garaufis agreed with the prosecutors, and in a ruling dated March 24, 2004, he told the lawyers why.

  “The question for the court to decide, therefore, after examining the ‘pleadings, evidence, charge and other relevant matter,’ is whether Massino has carried his burden of proving that the 1987 jury ‘necessarily’ decided that Massino did not intend to cause the deaths of Indelicato, Giaccone, and Trinchera,” Garaufis stated. “After conducting such an examination, I conclude that the 1987 jury did not necessarily make such a finding.”

  Garaufis went on to say that “I conclude that a rational jury in 1987 could have based its acquittal on the government’s failing to prove beyond a reasonable doubt that Massino entered into an agreement to murder Indelicato, Giaccone, and Trinchera.”

  Massino’s attempt to whittle down three homicide charges in the indictment had failed. He also faced another problem. Though seven homicides were charged in the indictment, Greg Andres wanted to bring out during the trial other killings and murder conspiracies from the early 1970s through 1999 that the government believed Massino played a role in, as well as acts of loan-sharking, extortion, theft, hijacking, arson, and illegal gambling. Andres even believed that the accusation of Massino shoplifiting a bottle of aspirin while on the lam in Pennsylvania was a prior bad act that the current jury should be aware of. The reason for bringing out such evidence, Andres argued, was to give background to the racketeering conspiracy for which Massino was standing trial.

  There were seven uncharged murders and murder plots Andres believed he could bring out during Massino’s trial. The murders the government wanted to incorporate in the trial, despite the fact that they weren’t charged in the trial indictment, included the killing of Vito Borelli, Joseph Pastore, Carmine Galante, Gerlando Sciascia, Robert Capasio, and Joseph Platia. The latter two homicides occurred around July 1984 and were ordered by Massino while he was out on bail after returning from his time as a fugitive, Andres told the court. Andres also said that Massino had a hand in the plot to kill Bruno Indelicato, the son of one of the murdered three captains, Alphonse Indelicato.

  Breitbart and Edwards said that the admission of such evidence of uncharged crimes was highly prejudicial to Massino and in the case of the shoplifted aspirin was irrelevant. Garaufis largely disagreed. On May 21, 2004, the Friday before Massino’s trial was scheduled to start, Garaufis said he would allow Andres and the prosecution team to use evidence of a number of the killings, including the slaying of Galante, to show not only the level of trust he had in his turncoat brother-in-law Salvatore Vitale but also to show the dimensions of the Bonanno racketeering enterprise. But Garaufis ruled that evidence of the killing of Vito Borelli, murdered because he insulted Paul Castellano with the “Frank Perdue” quip, had no place in the trial. That murder, Garaufis said, just didn’t seem connected to the Bonanno enterprise which Massino was accused of running. The aspirin shoplifting incident also had nothing to do with the racketeering case and was also out, said Garaufis.

  Josephine Massino and her daughter, Adeline, happened to be in court while Garaufis was reading his decision on the evidence about the uncharged crimes. The meaning was plain to them, although the legal reasoning that allowed the government to use so much bad evidence certainly wasn’t. Massino shot a glance over to his wife that said it all. It had been a bad day.

  New York’s major tabloid newspapers make it a habit of running major stories, dubbed “curtain raisers” on the weekend before big trials. On Sunday, May 23, 2004, all the city’s dailies ran big stories about the Massino trial that was opening the next day. The articles varied in length with Newsday doing the longest. Short sidebars were also done about the defense attorneys and prosecution team. The stories had the same general tone: Joseph Massino, the last big Mafia boss, was on trial for being a murderous leader, and some of his closest friends were going to testify against him. Life in prison was the only thing in his future.

  That Sunday morning at her Howard Beach home, Josephine Massino opened up a copy of New York Newsday. The front page jolted her. There in the center of the page was a color picture of her husband, somber-faced, his hair neatly combed, and wearing the black pullover he was arrested in on January 9, 2003. It was his arrest photo and arrayed around it on the page were pictures of four other Mafia bosses of the past: Carlo Gambino, Paul Castellano, John Gotti, and Joseph Bonanno. THE LAST DON: MASSINO TRIAL SAID TO BEGIN THE END OF AN ERA FOR ORGANIZED CRIME BOSSES, the headline said.

  None of the other tabloids had placed the Massino story on the front page with such prominence. But each paper had something. Suddenly, seeing the story like that, underscored for Josephine Massino that the trial was starting and that it was indeed show time. She spoke with her daughters and decided to do something she never expected to do. Josephine Massino wanted to talk to the news media. So did Adeline and Joanne. The crush of stories had overwhelmed them. Seeing it all splayed in the papers made them finally want to speak out to show the world that Joseph Massino was not a monster.

  The Massino women had been very guarded with the press during jury selection, but would occasionally engage in small talk with me during courtroom breaks. That Sunday, digging out my business card, Joanne Massino called me and said her mother urgently wanted to talk. Detouring from a trip to Shea Stadium where the New York Mets were playing the Atlanta Braves, I wound up in Howard Beach, hoping that none of the women would change their minds.

  For over two hours Josephine Massino and her daughters talked about Joseph Massino and what the betrayal of Salvatore Vitale had meant to them personally. They were circumspect to be sure and didn’t want to talk about any of the allegations at the center of the trial that was opening the next day. They also didn’t want to answer some questions about the merits of the case or things like whether Josephi
ne knew where her husband had been in the years he was on the lam. Though emotionally vulnerable and unsure of what to say, Josephine Massino and her daughters tried to paint a picture of Joseph Massino that portrayed him as an average Archie Bunker kind of guy with a big heart. They said he was a man who doted on his four grandchildren.

  “Forget me and my sister—his grandchildren [mean] everything to him, everything to him, and that is the truth, and anybody will tell you that,” said Joanne.

  Adeline pulled out a cache of letters Massino had written on average about twice a week to his grandchildren while in jail. Not a literate writer, Massino tried to hold out hope for the grandchildren that he would see them again, ending one note to a granddaughter who shared his liking for food with the closing comment “until we eat again.”

  The women recounted some of Massino’s acts of kindness, such as his donation of juice, coffee, and baked goods for one of his granddaughter’s grade school graduations or the way he paid the funeral expenses for the burial of a brother-in-law whose family was cash strapped. The Massino women were true believers in his goodness, something that seemed to blind them to the ugliness of the charges and the mounting evidence against him.

  As expected, the women excoriated Vitale, portraying him as a vain, unloving, and selfish man. His actions in turning on Massino were the ultimate in betrayal, actions they believed were motivated by a deep-seated jealousy Vitale had for the close relationship his sister’s family had.

  “He was a dirt bag,” Joanne said.

  The morning after the interview was May 24, 2004, and the media hordes had descended on the Brooklyn federal court and set up camp in Cadman Plaza. The park space had a large grass playing field that was fringed by tall trees. The massive gray stone Brooklyn War Memorial, which is big enough to contain rooms, loomed over the plaza. Television news crews and still photographers parked their vehicles along the park’s walkway. The park was the best location to photograph attorneys, defendants, and their families because they invariably had to walk straight across the playing field to get to the court house.