18-2482(L)

United States v. Pastore

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER 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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 8th day of June, two thousand twenty-two.

PRESENT: JOHN M. WALKER,

RICHARD J. SULLIVAN,

Circuit Judges,

ALISON J. NATHAN,

District Judge.*

––––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

Appellee, 

 

v. Nos. 18-2482(L), 

18-2610(Con)

STEVEN PASTORE, SALVATORE DELLIGATTI, 

Defendants-Appellants.†

––––––––––––––––––––––––––––––––––––

* Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, 

sitting by designation at the time this case was heard. 

† The Clerk of Court is respectfully directed to amend the official case caption as set forth above. 
2

FOR DEFENDANTS-APPELLANTS: VIVIAN SHEVITZ, (Larry J. Silverman, 

on the brief), Attorneys at Law, South 

Salem, NY, for Appellant Steven 

Pastore. 

LUCAS ANDERSON, Rothman, 

Schneider, Soloway & Stern, LLP, 

New York, NY, for Appellant Salvatore 

Delligatti.

FOR APPELLEE: JORDAN L. ESTES, Assistant United 

States Attorney (Samson Enzer, Jason 

M. Swergold, Karl Metzner, Assistant 

United States Attorneys, on the brief), 

for Geoffrey S. Berman, United States 

Attorney for the Southern District of 

New York, New York, NY.

Appeal from judgments of conviction and sentences in the United States 

District Court for the Southern District of New York (Katherine B. Forrest, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Defendants-Appellants Steven Pastore and Salvatore Delligatti appeal from 

judgments entered by the United States District Court for the Southern District of 

New York in connection with their participation in a criminal enterprise known as

the Genovese Crime Family (the “Family”).1 Delligatti was sentenced to 300 

1 Decision of this case was delayed by the panel’s need to await its turn in a queue of cases pending 

in this Circuit resolving questions arising from the Supreme Court’s ruling in United States v. 
3

months’ imprisonment after a jury found him guilty of conspiracy to commit 

racketeering, in violation of 18 U.S.C. § 1962(d) (Count One); conspiracy to commit 

murder in aid of racketeering and attempted murder in aid of racketeering, in 

violation of 18 U.S.C. § 1959(a)(5) (Counts Two and Three); conspiracy to commit 

murder-for-hire, in violation of 18 U.S.C. § 1958 (Count Four); illegal gambling, in 

violation of 18 U.S.C. § 1955 (Count Five); and using a firearm during and in 

relation to a crime of violence, and possessing a firearm in furtherance of a crime 

of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Seven). Pastore, who

pleaded guilty to Count One only, was sentenced to 24 months’ imprisonment and 

was ordered to forfeit $125,000. 

Delligatti raises an assortment of challenges on appeal, including that (1) the

evidence at trial was not sufficient to sustain his convictions on Counts One, Two, 

Three, and Five; (2) Counts One and Four of his indictment lacked adequate 

information and were constructively amended at trial; (3) the district court

erroneously admitted certain testimony at trial; and (4) his sentence of 300 months’

imprisonment is substantively unreasonable.2 Pastore challenges his forfeiture 

Davis, 139 S. Ct. 2319 (2019), interpreting “crime of violence.” See United States v. Laurent, 33 F.4th

63, 73 n.3 (2d Cir. 2022).

2 Delligatti also challenges his conviction on Count Seven for use of a firearm during and in 

relation to a “crime of violence,” arguing that the underlying predicates were not crimes of 
4

order on various grounds, arguing that a jury should have determined the amount 

and that the district court improperly calculated the total and relied on insufficient 

evidence. We assume the parties’ familiarity with the underlying facts, procedural 

history, and issues on appeal. 

I. Sufficiency of the Evidence

Delligatti challenges the sufficiency of the evidence underlying his 

racketeering convictions (Counts One through Three) and gambling conviction

(Count Five). We review each challenge de novo, “and must affirm if the evidence, 

when viewed in its totality and in the light most favorable to the government, 

would permit any rational jury to find the essential elements of the crime beyond 

a reasonable doubt.” United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004). 

Delligatti first contends the government failed to identify the “core” 

personnel of the Family and thus did not sufficiently prove an “enterprise” as 

required to convict him of his racketeering charges. At trial, a government agent

and a cooperating witness who was a member of another crime family testified 

about the structure of the Family, the illegal activities of Family members, and the 

Family’s role in the broader network of organized crime families known as La 

violence in light of Davis, 139 S. Ct. 2319. We address that challenge in a separate opinion that 

accompanies this summary order. 
5

Cosa Nostra. While these witnesses did not identify every individual in the 

Family, they described the structure of the enterprise and specified persons 

functioning as a “continuing unit” during the relevant period. United States v. 

Turkette, 452 U.S. 576, 583 (1981) (explaining that an enterprise is “proved by 

evidence of an ongoing organization, formal or informal, . . . [with] various 

associates function[ing] as a continuing unit”); see United States v. Payne, 591 F.3d 

46, 60 (2d Cir. 2010) (recognizing that an enterprise “may continue to exist even 

though it undergoes changes in membership” (citation omitted)). Further, the 

government offered extensive evidence of Delligatti’s association with the Family

and his engagement in criminal activities with a Genovese soldier named Robert

DeBello and two Genovese associates, Ryan Ellis and Robert Sowulski. This

evidence was more than sufficient to establish the existence of an enterprise.

Next, Delligatti argues that the government did not sufficiently establish a

“pattern” of racketeering activity to prove an offense under the Racketeering 

Influenced and Corrupt Organizations Act (“RICO”). He also contends that, 

because the jury was not asked to return a special verdict sheet as to Count One, it 

is impossible to know which charged acts constitute the requisite “pattern” of 

activity. A “pattern of racketeering activity” under RICO requires at least two 
6

racketeering acts within a ten-year span, excluding periods of imprisonment; acts 

linked to the same racketeering enterprise are ordinarily sufficient to establish 

such a pattern. See United States v. Daidone, 471 F.3d 371, 374–76 (2d Cir. 2006); 

United States v. Indelicato, 865 F.2d 1370, 1383–84 (2d Cir. 1989) (stating that an act 

in furtherance of a racketeering business “automatically carries with it the threat 

of continued racketeering activity”).

Count One of the indictment charged that members and associates of the 

Family – a criminal enterprise – engaged in various crimes “including conspiracy 

to commit murder; attempted murder; extortion; and the operation of illegal 

gambling businesses.” Delligatti App’x at 39. At trial, the district court instructed 

the jury that it did not need to “decide whether [Delligatti] agreed to the 

commission of any particular racketeering act” to convict him of Count One, but 

it had to “be unanimous as to which type or types of predicate racketeering activity 

[he] agreed would be committed.” Id. at 438. The court later instructed the jury 

on the elements of each predicate offense. 

Based on the trial record, we are persuaded that there was ample evidence

to prove Delligatti’s involvement in multiple predicate acts linked to the Family. 

As discussed below, the jury heard that (1) Delligatti directed a murder plot; (2) 
7

DeBello approved and financially benefitted from that plot; (3) Delligatti and

DeBello intimidated a nightclub owner and employee to obtain payments from the 

club; and (4) Delligatti participated in an illegal gambling scheme run by another

Genovese associate. The evidence shows that the predicate acts charged in Count 

One were “related” to the Family and together “amount[ed] to . . . continued 

criminal activity” sufficient to establish a “pattern” of racketeering activity. 

Daidone, 471 F.3d at 375. 

Delligatti also argues that his convictions for conspiracy to commit murder

in aid of racketeering and attempted murder in aid of racketeering, in violation of 

18 U.S.C. § 1959(a)(5) (Counts Two and Three), must be dismissed because the 

government did not present sufficient evidence that Delligatti planned a murder 

for the purpose of gaining entrance to or maintaining a position within the Family. 

But while section 1959 permits the government “to prosecute defendants for 

violent crimes intended . . . to permit a defendant to maintain or increase [his] 

position in a RICO enterprise,” United States v. Pimentel, 346 F.3d 285, 295 (2d Cir. 

2003) (internal quotation marks omitted), the government need not prove that 

“was the defendant’s sole or principal motive,” United States v. Concepcion, 983 F.2d 

369, 381 (2d Cir. 1992).
8

Delligatti emphasizes that he was solicited and paid to kill Joseph Bonelli

not by a member of the Family, but by Luigi Romano, the owner of a local gas 

station whom Bonelli had “terrorized.” Delligatti App’x at 346. Trial testimony 

established, however, that Family members frequented Romano’s gas station, that 

the Family was engaged in bookmaking, and that Bonelli was suspected of 

cooperating with the police against bookmakers. The jury also heard testimony 

that DeBello, a Genovese soldier, approved Bonelli’s murder and received a cut of 

the amount Romano paid for the hit. From this evidence, a rational jury could 

readily infer that Delligatti plotted Bonelli’s murder, at least in part, to benefit the 

Family and to advance his status within the Family. See United States v. Whitten, 

610 F.3d 168, 179–80 (2d Cir. 2010) (finding intent under section 1959 where

testimony established that committing violence authorized by crew leaders could

enhance status); Concepcion, 983 F.2d at 381. 

Finally, Delligatti argues there was insufficient evidence to support his 

conviction for participating in the operation of an illegal gambling business. To 

prove that Delligatti participated in the operation of an illegal gambling business 

as charged in the indictment, the government had to show, among other things, 

that the business (1) involved five or more people and (2) received more than five 
9

bets totaling over $5,000 in one day. See 18 U.S.C. § 1955; N.Y. Penal Law

§ 225.10(1).

The evidence at trial clearly established that Delligatti was a “runner” in a 

sports-betting operation led by Genovese associate Ryan Ellis; that Delligatti had 

a “sheet” with Ellis – meaning that Delligatti set up clients to bet and received 

some of the proceeds if his clients lost; that DeBello also received a cut of the

proceeds from the operation; and that the business employed numerous other 

runners, including Luigi Caminiti, Michael Vigorito, and Scott Jacobson. The 

government also introduced one of Jacobson’s gambling sheets, which itself 

showed that fifteen clients had placed bets and lost a total of $5,982 in a single day. 

Considered as a whole, this evidence sufficiently supported Delligatti’s conviction 

on Count Five. 

II. Adequacy of Indictment & Jury Instructions

Delligatti argues for the first time on appeal that his convictions on Count 

One (racketeering conspiracy) and Count Four (murder-for-hire conspiracy)

should be reversed because his indictment failed to specify certain necessary 

details and statutory citations. Because Delligatti did not raise this claim “prior to 

trial, as unambiguously required by the law of th[is] Circuit,” and he has shown 
10

no cause for failing to timely do so, the claim “must be rejected.” United States v. 

Spero, 331 F.3d 57, 61–62 (2d Cir. 2003); see also Fed. R. Crim. P. 12(b)(3)(B)

(requiring that objections alleging “a defect in the indictment” for “lack of 

specificity” or “failure to state an offense” be raised by pretrial motion if “the basis 

for the motion is then reasonably available and the motion can be determined 

without a trial on the merits”). 

Delligatti also maintains that the district court’s jury instructions on Counts 

One and Four constructively amended his indictment. Because he failed to object 

to these instructions at trial, we review for plain error. See United States v. Hertular, 

562 F.3d 433, 444 (2d Cir. 2009). To prevail on this challenge, Delligatti “must 

demonstrate that . . . the presentation of evidence and jury instructions . . . so 

modif[ied] essential elements of the offense charged that there is a substantial 

likelihood that [he] may have been convicted of an offense other than that charged 

in the indictment.” United States v. D’Amelio, 683 F.3d 412, 416 (2d Cir. 2012) 

(internal quotation marks omitted). Upon review of the indictment and the district 

court’s detailed jury instructions, we find no basis for concluding that Count One 

or Four were constructively amended. 
11

III. Evidentiary Rulings

Next, Delligatti challenges the district court’s admission of certain testimony 

at trial. We review the court’s evidentiary rulings for abuse of discretion and 

reverse only if the court based its decision “on an erroneous view of the law or on 

a clearly erroneous assessment of the evidence, or if its decision cannot be located 

within the range of permissible decisions.” United States v. Barret, 848 F.3d 524, 

531 (2d Cir. 2017). 

Delligatti first contests the admission of expert testimony from Special 

Agent John Carillo, who testified about the structure and conduct of La Cosa 

Nostra and the Genovese Crime Family, as well as the code of silence known as 

“Omerta.” Agent Carillo’s testimony gave context to the crimes charged; his 

specialized knowledge was also highly probative as to whether the Family was an 

“enterprise” and whether Delligatti’s acts were related to that enterprise. See Fed. 

R. Evid. 702(a); United States v. Locascio, 6 F.3d 924, 936 (2d Cir. 1993) (allowing 

testimony “on the nature and function of organized crime families, imparting the 

structure of such families and disclosing the ‘rules’ of . . . La Cosa Nostra”). It was

not an abuse of discretion to admit this testimony. 
12

Delligatti next challenges the district court’s decision to allow testimony 

from Philip Gurian, who testified that he ran a sports-betting operation with 

Delligatti and another Genovese associate – Christopher Castellano – who was 

later suspected of cooperating with law enforcement and subsequently killed. 

Although there was no evidence that Delligatti was involved in Castellano’s 

murder, the court concluded that Gurian’s testimony about Castellano was 

“directly relevant to the existence and nature of the charged [racketeering] 

conspiracy” and “would help the jury understand why Delligatti would have been 

willing to murder Bonelli – who, like Castellano, was suspected of cooperating 

with law enforcement.” Delligatti App’x at 91. The court also found that such 

evidence was “similar to, and no more prejudicial than the crimes with which 

Delligatti has been charged.” Id.

Evidence that Castellano had been considering cooperating and was later 

murdered was relevant to establishing Delligatti’s motive for killing Bonelli

(another suspected cooperator), especially when coupled with testimony about the 

Family’s rule prohibiting cooperation on penalty of death. See Fed. R. Evid. 403. 

Moreover, Gurian’s brief testimony about Castellano’s murder was not “more 

sensational or disturbing” than evidence of the charged crimes, which included
13

Delligatti’s extensive efforts to have Bonelli killed. United States v. Roldan-Zapata, 

916 F.2d 795, 804 (2d Cir. 1990). On balance, we find that the district court did not 

abuse its discretion in admitting this testimony. 

Delligatti separately argues that Gurian’s testimony included improper 

hearsay statements that Castellano made to Gurian when they were both 

incarcerated. We agree with the district court that these statements were 

admissible as statements against Castellano’s penal interest under Rule 804(b)(3)

of the Federal Rules of Evidence. Rule 804(b)(3) permits the admission of a hearsay 

statement at trial “if the declarant is unavailable as a witness,” and the statement 

is one that (1) “a reasonable person in the declarant’s position would have made 

only if the person believed it to be true because, when made, it was so contrary to 

the declarant’s proprietary or pecuniary interest or had so great a tendency . . . to 

expose the declarant to civil or criminal liability; and” (2) “is supported by 

corroborating circumstances that clearly indicate its trustworthiness, if it is offered 

in a criminal case as one that tends to expose the declarant to criminal liability.” 

Gurian testified that Castellano said he was an “enforcer” for two Genovese 

soldiers, Federici and Romanello, which Gurian understood to mean that 

Castellano “would intimidate people, beat people up, [and] hurt people to collect 
14

money to end up accomplishing whatever result” the mobsters demanded. 

Delligatti App’x at 280. These statements clearly would have subjected Castellano 

to criminal liability. See United States v. Gupta, 747 F.3d 111, 129 (2d Cir. 2014); 

United States v. Persico, 645 F.3d 85, 102 (2d Cir. 2011). Corroborating evidence also 

bolsters the trustworthiness of Castellano’s statements: Castellano made these

statements to Gurian, his friend and fellow inmate, rather than to law enforcement

agents “whose favor he might be expected to curry.” United States v. Katsougrakis, 

715 F.2d 769, 775 (2d Cir. 1983); see Gupta, 747 F.3d at 127. Further, after both men 

were out of prison, Castellano introduced Gurian to Federici at a dinner and 

connected Gurian with Delligatti, a fellow Genovese associate who also knew 

Romanello. And since Castellano’s death in 2010 made him unavailable at trial, 

the district court did not err in admitting Castellano’s prior statements under Rule 

804(b)(3). 

Finally, Delligatti challenges the district court’s decision to permit Robert 

Sowulski to testify about Delligatti’s suggestion that they plant a bomb in a club 

targeted by the Family for extortion. Delligatti argues these statements made him 

look like a “volatile and violent person” but were not probative of an existing

extortion conspiracy, and thus should have been excluded under Federal Rules of 
15

Evidence 402 and 403. Delligatti Br. at 56. But Delligatti’s willingness to plant a 

bomb at a nightclub after prior failed efforts to intimidate and take over the club 

was highly probative of his participation in a racketeering conspiracy involving

extortion. Though no bomb was ultimately planted, Delligatti’s proposal was 

relevant to establish his state of mind and intent while participating in the 

racketeering conspiracy. The court properly exercised its discretion in admitting 

that testimony. 

IV. Reasonableness of Sentence

Lastly, Delligatti challenges the substantive reasonableness of his belowGuidelines sentence because of “[t]he stark disparities” between his 300-month

sentence and the sentences of his co-defendants. Delligatti Br. at 58. We review a 

sentence for substantive reasonableness under “a deferential abuse-of-discretion 

standard,” “tak[ing] into account the totality of the circumstances” and “giving 

due deference to the sentencing judge’s exercise of discretion.” United States v. 

Cavera, 550 F.3d 180, 189–90 (2d Cir. 2008) (en banc) (internal quotation marks 

omitted). In this case, Delligatti’s sentence fell below the minimum advisory 

Sentencing Guidelines sentence of 324 months. Moreover, while district courts are 

not required to consider disparities among co-defendants – particularly if they are 
16

not similarly situated, see United States v. Johnson, 567 F.3d 40, 54 (2d Cir. 2009) –

here the court properly considered the section 3553(a) factors and applied a 

downward variance to prevent too great a disparity between Delligatti and his codefendants. Because this was well “within the range of permissible decisions,” we 

affirm. See Cavera, 550 F.3d at 191.

V. Forfeiture 

Pastore challenges his $125,000 forfeiture order, arguing that (1) a jury 

should have determined the forfeiture amount, and (2) the district court erred in 

calculating the amount based on gross receipts of funds that were not directly 

traced to any bettor in the gambling scheme. He also argues that the court 

determined the forfeiture amount based on insufficient and unreliable evidence.3 

“We review a district [court’s] legal conclusions regarding forfeiture de 

novo and [its] factual determinations for clear error.” United States v. Daugerdas, 

837 F.3d 212, 231 (2d Cir. 2016). “For a criminal forfeiture order to pass muster, 

3 In his briefs, Pastore challenged the procedural and substantive reasonableness of his sentence. 

He has since withdrawn as moot his “argument concerning [his] incarceratory sentence.” Case 

No. 18-2482, Doc. No. 153. To the extent that he maintains a procedural challenge to the district 

court’s imposition of forfeiture, Pastore fails to explain how the error he alleges – a factual finding 

in violation of Federal Rule 32 of Criminal Procedure – affected the forfeiture calculation. 

Moreover, the record makes clear that this challenge lacks merit. See Pastore App’x at 67 (stating 

that court won’t rely on disputed fact at sentencing).
17

the government must establish, by a preponderance of the evidence, the ‘requisite 

nexus between the property and the offense.’” Id. (quoting Fed. R. Crim. P. 32). 

Pastore’s argument that a jury should have determined his forfeiture 

amount is foreclosed by Supreme Court and Second Circuit precedent. In 

Libretti v. United States, the Supreme Court held that there is no right to a jury trial 

on a forfeiture determination, see 516 U.S. 29, 49–52 (1995), and this Circuit has 

since recognized that “Libretti . . . remain[s] controlling precedent,” United States v. 

Stevenson, 834 F.3d 80, 85–86 (2d Cir. 2016).

Pastore also argues that the district court should have calculated his 

forfeiture based on net, rather than gross, proceeds. He cites to United States v. 

Masters, in which the Seventh Circuit “assume[d]” (with little analysis) “that the 

proceeds to which [18 U.S.C. § 1963] refers are net, not gross, revenues,” and

dismissed this Circuit’s precedent, United States v. Lizza Industries, Inc., 775 F.2d 

492, 498 (2d Cir. 1985), as not “square[d]” with the statutory language. 924 F.2d 

1362, 1369–70 (7th Cir. 1991). But Masters is an outlier; no other circuit to have 

addressed this issue has agreed with the Seventh Circuit. See, e.g., United States v.

Cadden, 965 F.3d 1, 38 (1st Cir. 2020); United States v. Christensen, 828 F.3d 763, 822–
18

24 (9th Cir. 2015); United States v. Simmons, 154 F.3d 765, 770–71 (8th Cir. 1998); 

United States v. DeFries, 129 F.3d 1293, 1314 (D.C. Cir. 1997). 

In any event, we remain bound by this Court’s decision in Lizza Industries.

In that case, after the defendants were convicted under RICO for colluding on bids 

for publicly funded construction contracts, 775 F.2d at 494, the district court 

calculated forfeiture “by deducting from the money received on the illegal 

contracts only the direct costs incurred in performing those contracts,” id. at 498. 

We affirmed the district court’s calculation based on “gross rather than net 

profits.” Id. (describing the court’s calculation – which deducted only direct costs 

of performance from gross profits derived under illegal contracts – as “consistent 

with the purposes of the RICO statute”). In doing so, we explained that “[o]ften[,] 

proof of overhead expenses and the like is subject to bookkeeping conjecture and 

is therefore speculative.” Id. Accordingly, we emphasized that “RICO does not 

require the prosecution to prove or the trial court to resolve complex 

computations, so as to ensure that a convicted racketeer is not deprived of a single 

farthing more than his criminal acts produced.” Id. 

More recently, in United States v. Peters, we likewise held that the term

“proceeds” in another criminal forfeiture statute, 18 U.S.C. § 982(a)(2), refers to 
19

gross receipts rather than net profits, emphasizing that “it should not be necessary

for the prosecutor to prove what the defendant’s overhead expenses were.” 732 

F.3d 93, 101 (2d Cir. 2013) (quotation mark and alteration omitted) (noting that a 

properly “broad reading of ‘proceeds’ in the context of criminal forfeiture” under 

RICO should “punish[] ‘all convicted criminals who receive income from illegal

activity, and not merely those whose criminal activity turns a profit’” (quoting 

Simmons, 154 F.3d at 771)).

Here, Pastore offered no evidence of direct costs that could be deducted 

from the proceeds he received, and even if he had offered such evidence, it is 

unlikely that this Court’s holding in Lizza Industries – which contemplated 

deduction of lawful costs for the performance of illegally obtained construction 

contracts – would permit deduction of unlawful costs incurred in an illegal 

gambling scheme. See Pastore App’x at 54 (district court stating it had received no 

evidence of “any . . . amounts deducted from” proceeds “received by Mr. 

Pastore”); Peters, 732 F.3d at 101; cf. United States v. Ofchinick, 883 F.2d 1172, 1181–

82 (3d Cir. 1989) (noting that Lizza Industries “did not address whether a district 

court must deduct direct costs,” and that “[i]f direct costs need be taken into 

account, it is the defendant who has the burden of going forward on this issue,”
20

because “[t]he government should not have to prove the absence of direct costs in 

a case in which the defendant has not pointed to costs that might be deductible”). 

We conclude that where the district court had no evidence of any direct costs paid 

out from Pastore’s unlawful proceeds, it committed no error and appropriately 

followed this Court’s reasoning in Lizza Industries and Peters by calculating 

forfeiture based on the proceeds that Pastore received. 

Pastore also argues that the district court erred by including funds not 

traced to specific bettors in the bookmaking business. Citing to Honeycutt v. United 

States, 137 S. Ct. 1626 (2017), he argues that that the district court was required to 

trace proceeds from a losing bettor to Pastore himself. We disagree. 

In Honeycutt, the Supreme Court held that courts ordering forfeiture under 

21 U.S.C. § 853(a)(1) cannot hold a defendant “jointly and severally liable for 

property that his co-conspirator derived from the crime but that the defendant 

himself did not acquire.” 137 S. Ct. at 1630. This Circuit has not yet determined 

“whether Honeycutt’s ruling . . . applies equally in all respects to forfeiture orders 

under other statutes,” United States v. Fiumano, 721 F. App’x 45, 51 n.3 (2d Cir. 

2018); see United States v. Gil-Guerrero, 759 F. App’x 12, 18 n.8 (2d Cir. 2018), but 

even if we were to assume that the holding of Honeycutt applies equally to 
21

forfeiture under the criminal RICO statute, it would not affect the calculation in 

this case. “While we have not yet fully defined the parameters of Honeycutt,” we 

have clarified that the “bar against joint and several forfeiture for co-conspirators 

applies only to co-conspirators who never possessed the tainted proceeds of their 

crimes.” United States v. Tanner, 942 F.3d 60, 67–68 (2d Cir. 2019) (emphasis added). 

So, if a defendant at one point possessed proceeds from criminal activity, he “can 

still be held liable to forfeit the value of those tainted proceeds, even if those 

proceeds are no longer in his possession because they have been dissipated or 

otherwise disposed of by any act or omission of the defendant.” Id. at 68 (internal 

quotation marks omitted). 

In this case, the government demonstrated that Pastore received payments 

from runners and thus possessed proceeds from the illegal gambling operation. 

While the payments may not have always come directly from bettors’ hands, we 

recognize that money is fungible and the payments undoubtedly constituted 

proceeds from the gambling scheme. The district court’s calculation of forfeiture 

based solely on these illegal proceeds paid to Pastore did not conflict with the 

Supreme Court’s holding in Honeycutt, and we thus find no error.
22

Finally, although he conceded below that he received proceeds from the 

illegal gambling operation, Pastore asserts on appeal that there was insufficient 

evidence to support forfeiture in the amount of $125,000. In calculating forfeiture, 

a court “may [rely] on evidence already in the record . . . and on any additional 

evidence or information submitted by the parties and accepted by the court as 

relevant and reliable.” Fed. R. Crim. P. 32.2(b)(1)(B); see United States v. Capoccia, 

503 F.3d 103, 109–10 (2d Cir. 2007). 

Here, the court considered evidence, including wiretapped calls and 

surveillance reports, that the government introduced at a forfeiture hearing to 

prove Pastore’s receipt of at least $125,000 from the gambling operation. Pastore 

stipulated to the authenticity of this evidence and did not call any witnesses to 

impeach the reliability of the evidence. The court’s finding – “well beyond a 

preponderance” – that Pastore received $125,000 in proceeds traceable to the 

gambling operation was not clearly erroneous. Pastore App’x at 94; see United 

States v. Gaskin, 364 F.3d 438, 461 (2d Cir. 2004) (“[T]he government need prove 

facts supporting forfeiture only by a preponderance of the evidence.”). 

* * *
23

We have considered Defendants’ remaining arguments and conclude that 

they lack merit. For the foregoing reasons and those in the concurrently filed 

opinion, the district court’s judgment is AFFIRMED. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court