UNITED STATES OF AMERICA v. JOHN RAGANO (2024)

MEMORANDUM & ORDER

On October 11, 2024, a jury returned a verdict acquitting John Ragano of three counts of the four-count indictment in this case: extortionate collection of credit conspiracy; harassment of a witness; and witness tampering. ECF No. 81 (Jury Verdict). The jury convicted him on the remaining count of extortionate collection of credit. Id. Defendant has moved for an acquittal pursuant to Rule 29, arguing there was insufficient evidence at trial to support the jury's verdict convicting him of extortionate collection of credit. ECF No. 84-1 at 1 (Defendant's Motion).¹ In the alternative, Defendant moves for a new trial pursuant to Rule 33 on the basis that the Court erred in excluding a text message exchange from admission at trial. Id. The government opposes both motions. ECF No. 85 (Government Opposition). For the reasons set forth below, the motions are denied.

LEGAL STANDARD

A. Motion for Acquittal Pursuant to Rule 29

Under Rule 29, “a district court will grant a motion to enter a judgment of acquittal on grounds of insufficient evidence if it concludes that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (citing Fed. R. Crim. P. 29(a), (c)).² “A defendant challenging the sufficiency of the evidence bears a heavy burden.” United States v. Landesman, 17 F.4th 298, 319 (2d Cir. 2021). Courts must “view the evidence presented in the light most favorable to the government” and draw all permissible inferences “in the government's favor.” Id. Courts must also “defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence.” United States v. Ceballos, 340 F.3d 115, 124 (2d Cir. 2003).

Furthermore, the evidence must be “assess[ed] ․ as a whole” rather than “evaluate[d] ․ [in] piecemeal or in isolation.” United States v. Connolly, 24 F.4th 821, 832 (2d Cir. 2022). And the government “need not negate every theory of innocence.” Landesman, 17 F.4th at 319. “A jury verdict must be upheld if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Gahagen, 44 F.4th 99, 108 (2d Cir. 2022) (emphasis in original). However, the Court may not permit the jury to convict a defendant based on “[s]pecious inferences ․ because it would not satisfy the Constitution to have a jury determine that the defendant is probably guilty.” Landesman, 17 F.4th at 320 (emphasis in original).

B. Motion for a New Trial Pursuant to Rule 33

Rule 33 permits the Court to grant a new trial “[u]pon the defendant's motion,” “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). While a district court may grant a new trial if the evidence does not support the verdict, the Second Circuit has “emphasized that such action must be done sparingly and in the most extraordinary circumstances.” United States v. Archer, 977 F.3d 181, 187 (2d Cir. 2020). When considering a motion for a new trial, the Court must “keep[ ] in mind that the ultimate test ․ is whether letting a guilty verdict stand would be a manifest injustice.” United States v. Alston, 899 F.3d 135, 146 (2d Cir. 2018). Accordingly, when a defendant's motion for a new trial is based on the Court's evidentiary rulings, the relevant inquiry is not whether those evidentiary rulings were wrong but whether their effect amounted to a “manifest injustice.” United States v. Aiyer, 470 F. Supp. 3d 383, 410 (S.D.N.Y. July 6, 2020) (stating that arguments about evidentiary rulings “are improper on a Rule 33 motion absent manifest injustice”), aff'd, 33 F.4th 97 (2d Cir. 2022).

DISCUSSION

I. The Evidence was Sufficient to Convict Defendant of Extortionate Collection of Credit

To find Defendant guilty of extortionate collection of credit in violation of 18 U.S.C. § 894, the jury was required to find beyond a reasonable doubt that: (1) Defendant collected or attempted to collect an extension of credit; (2) Defendant used extortionate means to collect or attempt to collect the extension of credit; and (3) Defendant knowingly participated in the use of extortionate means. Tr. at 924:14–20 (Jury Charge). The Court defined extortionate means to the jury as “means which involve the use ․ [of] an express or implicit threat of violence, ․ or other criminal means to cause harm to the person, reputation, or property of any person.” Id. at 925:8–12.

Defendant argues that because he was acquitted on the conspiracy, witness tampering, and witness intimidation charges “the government's evidence at trial was largely rejected by the jury.” ECF No. 84-1 at 2. I disagree. “It is well established that a criminal defendant convicted by a jury on one count cannot attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count.” United States v. Martinez, 110 F.4th 160, 172 (2d Cir. 2024). “That is because a court knows only what the jury's verdicts were, not what the jury found, and it is not within the province of the court to attempt to determine the reason or reasons for verdicts that are inconsistent.” Id. at 172–73. Consequently, in evaluating a Rule 29 motion, “evidence supporting each count must be considered in isolation, notwithstanding how bizarre the verdict ․ may appear in its entirety. In other words, the proverbial ‘rational juror’ is entitled to reach a patently irrational verdict when his decision on each individual count, standing alone, is arguably rational.” United States v. Pinero, No. 12-cr-695, 2014 WL 12681905, at *4 (E.D.N.Y. April 20, 2014) (finding evidence supported jury's conviction on the count of conspiracy even though the jury acquitted defendant on the substantive count); see also United States v. Mulder, 273 F.3d 91, 114 (2d Cir. 2001) (“[T]he jury's decision to acquit ․ on the substantive ․ count does not indicate that it found he did not conspire to extort ․ because the elements of the two crimes are different.”).

Here, there is nothing to indicate that the jury's verdict was irrational. Based on the evidence the government introduced at trial—which included witness testimony, audio recordings, text messages, telephone toll records, statements by Defendant, and documents related to Defendant's criminal history—I find the jury could reasonably have convicted Defendant for the substantive extortion charge. First, the jury heard about the terms of the loan from witnesses who were directly involved, including the victim, Vincent Martino, and an individual who assisted Defendant with collecting payments on the loan, Andrew Koslosky. Both individuals testified that Defendant loaned Mr. Martino $150,000 in February 2021. Tr. at 360:15–19, 364:3–365:15 (Koslosky), 487:18–21 (Martino). The loan had a 14-month term and required Mr. Martino to make weekly interest payments of $1,800 to Mr. Koslosky, who in turn kept track of the payments and provided the money to Defendant. Id. at 361:19–24, 364:6–10, 366:1–386:21; see also GX312; GX314; GX316. These payments did not reduce the principal of the loan, and at the end of the 14-month term, Mr. Martino would have had to repay the entire $150,000 loan to Defendant. Tr. at 365:5–15. The jury also heard a May 2021 conversation recorded by Mr. Koslosky with Defendant in which they discussed the terms of the loan. GX151; Tr. at 387:24–388:17.

Second, the government presented evidence from which a rational juror could conclude that Defendant knowingly used extortionate means to collect the loan. The jury heard testimony that at the time of the loan, Defendant was a member of the Bonanno crime family. Tr. at 350:15–21, 486:6–18. Mr. Koslosky testified that Defendant was “known by everybody as somebody who is an intimidator” and that he was not “somebody you should be fooling around with.” Id. at 352:6–18. Mr. Martino testified that the individuals who collected payments on the loan told him to “make sure that [his payments] were on time every week” or “there could be consequences” in the form of violence. Id. at 491:15–492:14. Mr. Koslosky testified that Defendant told him that if Mr. Martino did not make his payments on time “there was going to be trouble,” and Defendant would “slap the shit out of him.” Id. at 371:17–372:12. It was Mr. Koslosky's understanding that this message should be relayed to Mr. Martino, so Mr. Koslosky, in turn, warned Mr. Martino not to fall behind on payments because Defendant “is not somebody you want to mess with” and is “an intimidating fella and he can back up what he says.” Id. at 372:11–373:11.

Mr. Martino testified that when he and Defendant were arrested in September 2021, Defendant told him that he was not afraid to go to prison and that he had used violence against those who had challenged him in the past. Id. at 503:11–16. Additionally, in relation to their arrest, Mr. Martino and Defendant attended four status conferences. GX504. Mr. Martino told the jury that Defendant approached him at the conferences to discuss the loan, and Defendant indicated that an individual named Simone Barca would be collecting the payments from then on. Tr. at 509:5–10, 512:12–22. Mr. Martino further testified that Defendant was getting “more and more frustrated and aggravated” and “more aggressive” at each successive encounter after Mr. Martino did not return Mr. Barca's calls and did not make any payments. Id. at 512:2–514:4.

The jury saw call records from December 2022 and January 2023 showing instances when Mr. Barca attempted to reach out to Mr. Martino. GX201; Tr. at 518:1–522:6. Mr. Martino testified that although Mr. Barca contacted him repeatedly in December 2022 and January 2023, Mr. Martino attempted to avoid him. Tr. at 518:1–522:6. The jury also heard a voicemail that Defendant left Mr. Martino on January 2, 2023, in which Defendant wished Mr. Martino a happy new year and indicated that he had not heard from Mr. Martino. GX100; Tr. at 526:1–18.

The jury further heard excerpts of various meetings between Mr. Martino and Mr. Barca from March and June 2023, which were recorded by Mr. Martino. Tr. at 532:15–534:6. During the course of one of those conversations, Mr. Barca told Mr. Martino that Defendant “was hoping [Mr. Martino] came up with everything” and “at the end of the day, [Defendant] just wants this to go away.” GX109. Mr. Barca added “nobody's looking for anybody to get hurt, nobody's looking to hurt your pocket or hurt his pocket,” which Mr. Martino testified he understood to be a threat that he would be harmed if he did not pay back the loan. Id.; Tr. at 547:16–20. During the course of another conversation, Mr. Barca told Mr. Martino that Defendant was “a little upset” that the loan was still outstanding. GX 112; Tr. at 565:5–19.

On June 30, 2023, Mr. Martino asked Mr. Barca for a meeting with Defendant, and eventually, Mr. Barca arranged a meeting with Defendant at Defendant's work address. Tr. at 588:9–590:2, 596:7–8; GX129. On July 5, 2023, Mr. Martino went to Defendant's workplace to discuss the loan. Tr. at 595:16–19. Mr. Martino recorded the meeting, and the jury heard that conversation. GX130; Tr. at 595:20–21, 605:17–19. During the conversation, Mr. Martino told Defendant that he was going to stop repaying the loan because he believed Defendant was cooperating with the government. GX130; Tr. at 605:25–606:6. Defendant denied the accusation and in turn accused Mr. Martino of cooperating with the government. GX130. Defendant also demanded that Mr. Martino take off his clothing to ensure he was not wearing a recording device. GX130; Tr. at 604:23–25. Mr. Martino complied. Tr. at 604:23–25. At that point, two men from Defendant's workplace walked up behind Defendant holding metal objects. Tr. at 605:8–11. Defendant then said, “You owe me my fucking money, let's see how you're gonna do when I get out,” which Mr. Martino testified he understood meant Mr. Martino would face “consequences” when Defendant was released from prison. GX130; Tr. at 608:5–8. As Mr. Martino ran out, Defendant said, “I'll see you when I get out tough guy.” GX 130.

As set forth above, there was ample evidence—including evidence beyond the July 5, 2023, encounter—supporting the jury's finding that Defendant attempted to collect an extension of credit by extortionate means and knowingly participated in the use of extortionate means. Even though the jury acquitted Defendant on the conspiracy count, that does not mean it, in Defendant's words, “necessarily determined that [Mr.] Martino's testimony regarding implicit threats from [D]efendant and [Mr.] Barca was not credible.” ECF No. 84-1 at 2. Rather, a rational juror could have viewed the interactions between Mr. Barca and Defendant and determined that, even if Mr. Barca was acting on Defendant's behalf to collect the loan, that did not amount to a conspiracy between the two men. That conclusion, however, in no way renders the jury's verdict regarding the substantive extortionate collection of credit count inconsistent. Similarly, with respect to the July 5, 2023, encounter, Defendant admits that he threatened Mr. Martino—albeit after Mr. Martino accused him of cooperating with the government. ECF No. 84-1 at 4. Nevertheless, Mr. Martino's state of mind is irrelevant to the inquiry; rather, the inquiry related to the use of extortionate means is “directed at the conduct of the defendant, not the victim's individual state of mind.” United States v. Romanello, No. 22-cr-194, 2024 WL 1858226, at *3 (E.D.N.Y. Apr. 29, 2024) (quoting United States v. Natale, 526 F.2d 1160, 1168 (2d Cir. 1975)). In other words, it is irrelevant what precisely prompted Defendant to threaten Mr. Martino—what matters is that he actually threatened Mr. Martino in connection with the repayment of the loan. Accordingly, in viewing the evidence as it pertains to the substantive extortionate collection of credit count, I cannot find that “no rational trier of fact” could have found Defendant guilty on the substantive count. Jackson, 335 F.3d at 180. Defendant's motion for acquittal is therefore denied.

II. The Court's Evidentiary Ruling Does Not Merit a New Trial

Defendant contends that I erred by excluding Defendant's Exhibit C, which is a text message exchange between Mr. Martino and special agents of the Federal Bureau of Investigation. ECF No. 84-1 at 8. My decision excluding Exhibit C was as follows:

So consistent with my earlier ruling regarding the July 5th meeting, I'm going to grant the Government's motion to preclude the text messages or references to them. First, they're hearsay, not subject to any exception because I do not[ ] agree that 803(3) applies here. But even if it did, the exhibit is not relevant to any core issue in the case [and would] otherwise be excludable under Rule 403 because it would tend to confuse and mislead the jury. Since it does not go to the credibility of [Mr. Martino], at most, it goes to the investigative techniques employed by the Government, and I have already ruled that that [is] irrelevant.

Tr. at 5:7–20. Defendant argues that the texts should have been admitted to impeach Mr. Martino. ECF No. 84-1 at 8.

“[A] Rule 33 motion is generally an improper vehicle by which a defendant may challenge evidentiary rulings, absent ‘manifest injustice.’ ” Aiyer, 470 F. Supp. 3d at 414 n.32. “Even when a trial court errs in its evidentiary rulings, a new trial is not warranted if the court is satisfied that competent, satisfactory and sufficient evidence in the record supports the jury's finding that the defendant is guilty beyond a reasonable doubt.” United States v. Parnas, No. 19-cr-725, 2022 WL 669869, at *6 (S.D.N.Y. Mar. 7, 2022), aff'd sub nom. United States v. Kukushkin, 61 F.4th 327 (2d Cir. 2023).

As an initial matter, and as I found above, see supra § I, there is “competent, satisfactory, and sufficient evidence” in the record supporting the jury's finding that Defendant is guilty of extortionate collection of credit. Accordingly, even if I erred in excluding Defendant's Exhibit C from trial, a new trial would not be warranted in this case. Nevertheless, for the reasons set forth below, I find that the text messages are not in any way inconsistent with Mr. Martino's testimony about his belief that Defendant cooperated against him. Consequently, their exclusion does not amount to “manifest injustice.”

Defendant argues that “[g]iven the verdict in this case which must have depended on the July 5 encounter,³ it is now apparent that the text messages are directly relevant to [Mr.] Martino's credibility, since he falsely testified that he went to confront the [D]efendant on that date because he believed that the [D]efendant was cooperating against him.” ECF No. 84-1 at 8–9. Defendant avers that that “false testimony” “is directly contradicted by the text messages and the testimony of the case agent who testified that the [D]efendant was not cooperating.” Id. at 9. Defendant further adds that the prejudice to him caused by the preclusion of these text messages was “further exacerbate[d]” by the government's rebuttal summation. Id. at 9.

Defendant misinterprets both the text messages and the trial testimony. First, the texts which Defendant seeks to admit do not speak to whether Mr. Martino was using a pretextual basis to confront Defendant on July 5, 2023. The texts are dated about a month before that encounter—on June 7, 2023, and show Mr. Martino suggesting that he could evoke a reaction from Mr. Barca. See ECF No. 84-2 (“I can also potentially get him [Mr. Barca] to a point in conversation to potentially throw some type of threat out there. He might even bring up John [Ragano] getting frustrated that I haven't come through in a month or so.”); see also id. (“I can potentially even get him [Mr. Barca] to get John [Ragano] on a FaceTime and maybe have a conversation with him with frustration expressed to him.”).

Defendant contends in his Reply that Defendant's Exhibit C encompassed more than the June 7, 2023, text messages. See ECF No. 88 at 2 (Reply). But that is factually inaccurate. In Defendant's opposition to the government's motion to preclude Exhibit C, Defendant defined Exhibit C as “a series of June 7, 2023 text messages between John Doe and FBI agents.” ECF No. 74 at 1. Nevertheless, even if Defendant sought to admit the additional text messages, those messages still do not show that Mr. Martino confronted Defendant with a false accusation to get him “heated.” ECF No. 88 at 3. While these additional messages may show that Mr. Martino went into the July 5, 2023, encounter with the intent to evoke a reaction from Defendant, nothing about them shows that Mr. Martino did not actually believe Defendant was cooperating with the government. See e.g., id. at 2 (“Let me get this fucking guy heated.”); id. at 3 (“I hope Tom has some muscle because when this 350 pound gorilla [referring to Defendant] jumps on me I'm gonna need someone to pull them off. Lol.”). As to the texts’ relevance, any argument that these text messages show that Mr. Martino did not actually fear Defendant is irrelevant because, as discussed earlier, see supra § I, the inquiry related to the use of extortionate means is “directed at the conduct of the defendant, not the victim's individual state of mind.” Romanello, 2024 WL 1858226, at *3. And, to the extent there is a question of whether Defendant intended to invoke fear in Mr. Martino that day, the jury was able to assess their interaction by hearing the July 5, 2023, recording, which was played for the jury multiple times. I therefore find that even if Defendant's Exhibit C included the additional text messages discussed in his Reply, Defendant's arguments for admitting them would not rise to the level of finding that their exclusion resulted in “manifest injustice.” Aiyer, 470 F. Supp. 3d at 383.

Defendant's second faulty argument is that Mr. Martino gave “false testimony.” ECF No. 84-1 at 9. On direct examination, Mr. Martino testified that when he confronted Defendant at his workplace on July 5, 2023, he believed that Defendant was cooperating with the government. Tr. at 606:3–6. Mr. Martino's testimony was consistent on cross-examination, where he stated that he had heard “on the street” that Defendant was cooperating, and that he “still believe[s] that to today.” Tr. at 661:22–664:14. Contrary to Defendant's contention, Mr. Martino's testimony was not contradicted by Special Agent Butler's testimony. Special Agent Butler testified that Mr. Martino had indicated to him “multiple times” that he believed from “street sources” that Defendant had been cooperating with the government. Tr. at 808:20–809:5 (Butler). Special Agent Butler also testified that he (Special Agent Butler) knew Defendant was not, in fact, cooperating with the government. Id. at 809:6–7, 16–17. However, Special Agent Butler testified that it is the FBI's policy to not discuss cooperating witnesses with civilians. Id. at 812:18-19. Special Agent Butler further testified that if he was asked whether someone is a cooperator, he would not respond to the question and, if a civilian started referring to an individual as a cooperating witness, he would not attempt to correct any misimpression. Id. at 812:21–813:2. There is nothing contradictory about Special Agent Butler's testimony vis-à-vis Mr. Marino's. There is additionally nothing in the text message exchange that contradicts either Mr. Martino's or Special Agent Butler's testimony. While they do indicate that Mr. Martino was attempting to get a reaction out of Mr. Barca and/or Defendant, they do not speak to Mr. Martino's belief that Defendant was cooperating. The text messages thus are of no impeachment value. I therefore find that precluding them from admission did not amount to “manifest injustice.” Aiyer, 470 F. Supp. 3d at 383.

Defendant finally argues that “[t]o further exacerbate the impact of the Court's order of preclusion, the government improperly sought to exploit [Mr.] Martino's testimony ․ in its highly misleading rebuttal summation[.]” ECF No. 84-1 at 9. “A defendant asserting that a prosecutor's remarks warrant a new trial faces a heavy burden, because the misconduct alleged must be so severe and significant as to result in the denial of his right to a fair trial.” United States v. Willis, 14 F.4th 170, 186 (2d Cir. 2021). In addition, “the Government has broad latitude in the inferences it may reasonably suggest to the jury during summation.” United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005). Even if a defendant can meet the heavy burden of demonstrating that a prosecutor's remarks were improper, an “improper summation will only warrant a new trial when the challenged statements are shown to have caused substantial prejudice to the defendant; rarely will an improper summation meet the requisite level of prejudice.” United States v. Daugerdas, 837 F.3d 212, 227 (2d Cir. 2016). Defendant has failed to meet this “heavy burden,” because, as discussed above, the government's remarks about Mr. Martino's belief that Defendant was cooperating with law enforcement are consistent with the testimony the jury heard at trial. Likewise, because the text messages were not inconsistent with the testimony heard at trial or the government's argument in summation, I find nothing improper about the rebuttal summation. Accordingly, Defendant's motion for a new trial pursuant to Rule 33 is denied.

CONCLUSION

For the reasons set forth above, Defendant's motion for an acquittal pursuant to Rule 29 and motion for a new trial pursuant to Rule 33 are denied. See ECF No. 84.

SO ORDERED.

FOOTNOTES

1.   The Court cites to pages assigned by the Electronic Case Files System (“ECF”) except in the case of the trial transcript (“Tr.”). For the trial transcript, the Court cites to the original transcript pages and line numbers.

2.   Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.

3.   As discussed above, see supra § I, I disagree with this interpretation of the jury's verdict. See Martinez, 110 F.4th at 172 (“[A] court knows only what the jury's verdicts were, not what the jury found and it is not within the province of the court to attempt to determine the reason or reasons for verdicts that are inconsistent.”).

HECTOR GONZALEZ United States District Judge