*

 The Honorable Stefan R. Underhill of the United States District Court for the District of Connecticut, sitting |

by designation. |

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09-0574-cr

USA v. Leto

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to summary orders

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document

filed with this court, a party must cite either the Federal Appendix or an electronic database

(with the notation “summary order”). A party citing a summary order must serve a copy of it

on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the tenth day of November, two thousand and ten.

PRESENT:

JOSÉ A. CABRANES,

DENNY CHIN,

Circuit Judges,

STEFAN R. UNDERHILL,

District Judge.*

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UNITED STATES OF AMERICA, 

Appellee,

 -v.- No. 09-0574-cr

 

FRANK LETO, a.k.a. Chickie,

Defendant-Appellant,

LOUIS FENZA,

Defendant.
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FOR DEFENDANT-APPELLANT: MONICA R. JACOBSON, New York, NY.

FOR APPELLEE: RICHARD M. TUCKER, Assistant United States Attorney

(Loretta E. Lynch, United States Attorney, and David C.

James, on the brief) United States Attorney’s Office for the

Eastern District of New York, New York, NY. 

Appeal from a January 23, 2009 judgment of the United States District Court for the Eastern

District of New York (Arthur D. Spatt, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the District Court be AFFIRMED.

On February 14, 2008, the government filed an indictment charging Frank Leto and his

co-defendant, Louis Fenza, with one count of racketeering in violation of 18 U.S.C. §§ 1962(c), 1963;

one count of participating in a racketeering conspiracy in violation of 18 U.S.C. §§ 1962(d), 1963; one

count of participating in an extortion conspiracy in violation of 18 U.S.C. § 1951; and two counts of

attempted extortion in violation of 18 U.S.C. § 1951(a). Following protracted pre-trial proceedings as

well as a trial by jury, Leto and his co-defendant were found guilty of all charges. On January 23, 2009,

Leto was sentenced principally to a term of three years’ probation, the first year of which would be spent

under house arrest. This appeal followed. We assume the parties’ familiarity with the remaining factual

and procedural history of the case. 

On appeal, Leto argues that we should vacate his conviction for three reasons. First, he claims

the evidence against him was insufficient to sustain a verdict because it was based primarily upon the

testimony of a single witness, did not prove an unlawful threat, and did not show a link between the

extortionate acts and a criminal enterprise. Second, he argues that the trial judge should have instructed

the jury that “if there are two logical inferences that can be drawn in connection to a set of facts, one in

favor of innocence and one in favor of guilt, you must draw the inference in favor of innocence.” 

Third, he claims the trial judge improperly admitted into evidence certain highly prejudicial recordings of

conversations (i.e., the “Ballfield Tapes”) between Leto and Frank Campione, an alleged member of the

Colombo crime family. 

The defendant made essentially the same claims before the District Court in his motion for a

new trial under Federal Rule of Criminal Procedure 33. In its August 8, 2008 Memorandum of Decision

and Order ruling on the defendant’s motion, the District Court described in detail the evidence

introduced at trial—including evidence of the existence of an enterprise, evidence of an unlawful threat,

and evidence of a pattern of racketeering activity—that it deemed sufficient to sustain the guilty verdict

against Leto. The District Court also held that Leto’s requested “inference” charge was improper under

United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989), and United States v. Inserra, 34 F.3d 83, 91 (2d

Cir. 1994). Finally, the District Court held that the “Ballfield Tapes” were not improperly admitted as

evidence because, among other things, the defendant failed to show that he had moved to exclude or

had objected to the admission of the tapes before or during the trial. 
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For substantially the same reasons as those stated by the District Court, we find the defendant’s

arguments unavailing. 

CONCLUSION

We have considered each of the defendant’s claims in turn and find them to be without merit. 

The judgment of the District Court shall be AFFIRMED.

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Court