that he would protect him, told Gervais that he would have to pay the Ferriola Street Crew. After Infelise's intercession, Gervais began paying street tax to the crew.
George Miller also testified at trial that after he and his father began operating an independent bookmaking and parlay card operation in Lake County, Infelise, Marino, and DeLaurentis decided to take over the Millers' operation. At one meeting, Infelise told Miller that if he did not join the crew, his parlay card printing press would be destroyed. Later, Miller agreed to give the crew 50% of his business. Miller also testified that after he began working for the crew, he learned that the daily profit and loss figures for the crew's bookmaking business were regularly reported to Infelise.
Such testimony demonstrates Infelise's consistent involvement and leadership role in key aspects of the crew's activities for many years before he became the crew boss in 1989. When Infelise said that Gervais had to pay street tax to his crew, Spilotro, the boss of another crew, conceded. When Infelise demanded that Miller join his crew, Miller complied and gave up half of his independent bookmaking profits to the crew. When Pielet wanted to switch to Carlisi's crew, he was only permitted to do so after Infelise gave his permission. Contrary to Infelise's denials, the evidence clearly demonstrates that Infelise provided leadership to the Ferriola Street Crew prior to Ferriola's death and, as he concedes,
he ran the crew after Ferriola's death in 1989. Therefore, this court agrees with the probation officer and the government that Infelise should receive a 4 point enhancement pursuant Section 3B1.1. Infelise's objection to this assessment is overruled.
Infelise also objects to the assessment of 2 points pursuant to Section 3C1.1 for obstruction of justice.
Infelise argues that he did not pay "hush money" to grand jury witnesses to keep them from testifying about the crew's activities. While Infelise concedes that certain persons were jailed for refusing to testify despite having been given immunity, he argues that there is no evidence showing that Infelise told them not to testify or that they would be paid if they did not testify. Infelise characterizes the payments made to persons in jail or their families as "friends . . . helping friends who were incarcerated because they decided to be loyal to their friends."
This court is not persuaded by Infelise's altruistic explanation of the payments because the evidence presented at trial adequately demonstrates that incarcerated persons were paid to protect the crew during the course of the grand jury investigation.
For example, in a recorded conversation between Infelise and Nicholas on September 2, 1986, the night before Nicholas was to report to jail for civil contempt, Infelise told Nicholas: "Well I'll tell you what I want, want to know. Ah, I want to leave something there every month, but I want to know who to give it to." After Nicholas told Infelise to leave the money with "Phil," Nicholas told Infelise: "You know I love you and . . . you don't have to worry about nothing." Infelise replied: "And ah, I ain't worried about that . . ." Government Exhibit 243 at 1-2.
Such evidence adequately demonstrates by a preponderance of the evidence that the money paid to individuals, such as Nicholas, incarcerated for civil contempt was indeed hush money as the government suggests.
Infelise argues that this evidence does not prove that Nicholas would have testified but for the money Infelise gave him. But, such evidence need not prove beyond a reasonable doubt that the money Infelise gave Nicholas was hush money. For sentencing purposes, the evidence must make it more probable than not that the money Infelise gave Nicholas was hush money. See Masters, 978 F.2d 281; Duarte, 950 F.2d 1255. Given Infelise's leadership role, Nicholas' involvement with the crew, and the fact that Nicholas was given immunity to testify against the crew, this court is persuaded that Infelise's promise to give Nicholas money and Nicholas' statement that Infelise had "nothing to worry about" makes it more likely than not that Infelise gave Nicholas money because he refused to testify against the crew.
Infelise also argues that the enhancement assigned to him for obstruction of justice is inappropriate because the evidence of bribery and corruption of officials was on a local, rather than a federal, level. Although local gambling offenses were included in the RICO charge against him, Infelise contends that his actions with respect to state and local officials do not demonstrate an obstruction of this particular investigation as required under Section 3C1.1. This court is not persuaded by Infelise's attempt to distinguish local crimes from federal obstructions. Infelise was well aware of the federal investigation of his illegal enterprise which encompassed state and federal crimes of extortion, loansharking, bookmaking, and murder. Given that the local crimes were identified as part of the RICO charge, Infelise's distinction fails to demonstrate that an enhancement is not appropriate based on Section 3C1.1.
Finally, Infelise objects to the obstruction enhancement because he claims that he did not conceive of the lie that undercover agent Larry Kaiser was to give when Kaiser's telephone number was recovered from DiDomenico during a search. Infelise claims that he was concerned that the government would try to create an interstate gambling offense because he and DeLaurentis had a relationship with Kaiser. Infelise contends that he was not trying to obstruct justice; he just did not want to be framed for an offense he did not commit.
However, this court ruled in its August 27, 1992 opinion regarding defendants' motion for a new trial that the Lake Geneva loan/bribe involving Kaiser was committed in furtherance of the conspiracy charged in the indictment in this case. Therefore, contrary to his contention that he was merely trying to avoid being framed for an offense he did not commit, Infelise's direction to have Kaiser lie to federal agents if questioned about his relationship with crew members demonstrates an attempt to obstruct the investigation of this case. See Government Exhibits 441-442. Since Infelise did not know that Kaiser was an undercover agent, Infelise thought he was helping a potential witness formulate a false explanation regarding his association with crew members. Such actions clearly warrant the obstruction of justice enhancement assigned to Infelise.
C. Objections Only Applicable to Bellavia
The probation officer assigned Bellavia a 3 point enhancement pursuant to Section 3B1.1 because Bellavia acted as a supervisor or manager of the Ferriola Street Crew. Bellavia claims that, contrary to his probation officer's finding, he was only a minor participant in the gambling enterprise, he did not supervise Freddie Braun, and only profited from the gambling operation on one occasion. While he concedes that he obtained cellular telephones for the gambling operation and collected money from Roy Salerno for the crew, Bellavia contends that such evidence does not support a finding that he was a crew supervisor.
Contrary to Bellavia's denials, this court Finds that the evidence clearly demonstrates that Bellavia was a crew supervisor. Indeed, Bellavia admitted to becoming one of Infelise's top supervisors in a recorded conversation with Jahoda on October 30, 1989. The following discussion took place:
Jahoda: Because I know when I compliment you and Louis on the promotions, as well as Solly . . .