Carmine the Snake

by Frank DiMatteo

  ACT II

  CHAPTER SIX

  Winds of War

  They say that all true businessmen are sociopaths, that you can’t maximize profits with a conscience—and there was no better example of that than Joe Profaci, a guy who milked the poor and invested those pennies into his own opulence.

  GIUSEPPE “JOE” PROFACI was born in 1897 in Villabate, Sicily, and came over on the boat. His crime family, which would evolve into the Colombos, was the youngest of the five, formed as a legitimate business by Profaci, Carmela Mia, largest distributor of olive oil and tomato sauce in the U.S. He was already a very rich man when he branched out into organized crime, gathering up wealth and power as a bootlegger, bringing in whiskey by the boatload through Jamaica Bay on the southern shore of Long Island, and driving truckloads of the stuff in through Canada. His operations diversified into gambling, extortion, hijacking, prostitution, and extorting entire unions, a form of shakedown that he might have invented. He’d been boss since 1928 when he was appointed at a national commission meeting in Cleveland. By 1931, Profaci had a seat at that commission. He lived on a sprawling compound in the Bensonhurst section of Brooklyn.

  For decades, authorities thought Profaci was legit—but there were clues as to his secret identity. His name and address were found in the little black book of a mobster named Giroloma Adamo when he was arrested in L.A. Profaci himself was busted in 1938 when a commission meeting was raided in a Cleveland hotel room. Cops had no idea who they had, just that they also found thirteen guns. Still, up until the Kefauver hearings, when Profaci’s secrets were bared, he was mostly known as a good guy, a man who was involved in church activities and multiple charities. By the time he was arrested by New York State troopers at the Apalachin Conference in 1957, his secret might’ve been out but he never went to jail.

  In time-honored mob tradition, Profaci became boss of one of the Five Families by bumping off the previous boss, Salvatore D’Aquila. Weak men were befuddled by obstacles. Strong men removed them. And Salvatore D’Aquila was in Joe Profaci’s way in 1928. Profaci was now boss of the smallest of the Five Families.

  Joey and Larry were also made in the aftermath of the Anastasia hit, but Joe Jelly was not. Mr. Profaci apparently didn’t feel Joe Jelly had done enough to warrant a button.

  * * *

  Now a made man, Carmine entered a chilly world, even tougher than the one he’d known on street corners. Carmine took over his own crew, and for the first couple of years, operations ran smoothly. Every once in a while, a little muscle was called for but there were no logjams in the money flow. Scores went off without a hitch, not always like clockwork, but usually without injury or incarceration. Many of the scores were hijacks, considered good jobs for young hoods because they were relatively easy to pull off. It took balls to do it, of course, but it wasn’t complicated, not a lot of thinking involved.

  None of which took Murphy’s Law into account.

  On July 28, 1959, Carmine’s crew hijacked a truck with $50,000 worth of piece goods in it from the Akers Motor Lines Terminal in Brooklyn, built right along the Gowanus Canal in between Nevins and Union Streets.

  At the time it seemed like just another score, but in April 1960, an indictment was filed by a U.S. Court in Kings County charging Carmine and his crew—close friend and man-mountain bodyguard Hugh “Apples” McIntosh, plus Salvatore Albanese, Ralph Spero, Joseph “Joey Mags” Magnasco, all from the neighborhood, and George Lanfante who was originally from South Ozone Park, Queens—with hijacking and conspiracy to hijack.

  Thus, began one of the longest and most complicated cases in the history of American justice. So allow us to step out of chronology for a moment. Five times Carmine and his co-defendants would go to trial over this crime. Joey Mags was only around for two of those trials. After the second trial, after a conviction but before sentencing, Magnasco was shot dead. Much more about that, later.

  At all five of Carmine Persico’s hijacking trials, the prosecution’s case hinged on the testimony of two men, Gasper Vaccaro, a co-conspirator who’d taken a deal and turned against the others, and Edward Kennedy, an employee of Akers Motor Lines and the driver of the hijacked truck. He could testify that the truck had been hijacked all right, but not to the identity of any of the hijackers as he’d been forced to wear taped-over sunglasses.

  Vaccaro testified that on July 27 or 28, 1959, he was in a Brooklyn bar with Carmine Persico and the other defendants and that they planned to hold up a truck carrying piece goods and take it to a garage they knew. It was a plan that turned out to be only almost perfect: Vaccaro spotted the truck at Akers Terminal as it loaded. Albanese fetched a previously stolen Buick. Vaccaro, with Spero and Albanese, followed the truck and when the opportunity arose, kidnapped the driver, and drove the truck themselves to the garage. Albanese and Vaccaro drove the kidnapped truckdriver around in the Buick until they were notified that the robbery was complete. McIntosh rented a truck, and loaded the dry goods onto it. Carmine, author of the plan, was at the garage to help make the transfer onto the new truck. Vaccaro and Albanese called Joey Mags, and said it was cool to release the truckdriver. Everything went off without a hitch. The stolen goods were sold to a fence, and, minus the almost two grand in tribute, the seven conspirators split the money. Then Vaccaro got popped and turned on his co-conspirators because he had priors and was threatened with a life sentence unless he blabbed.

  It was Vaccaro’s testimony that troubled the defense lawyers. If the jury believed Vaccaro, checkmate. So, they went all out to make Vaccaro seem bad and untruthful.

  The first trial lasted twelve days during the spring of 1961, and resulted in a hung jury.

  The second trial lasted nine days that summer, and ended with a conviction. Persico and McIntosh received sentences of fourteen and nine years respectively on each count, the sentences to run concurrently. Albanese and Spero received suspended sentences and were placed on probation. Mags was convicted on both counts, but never had the opportunity to be sentenced.

  No one actually went to prison, however. There was a successful appeal. The second-trial conviction was reversed because of “errors at trial,” those being both judicial and prosecutorial misconduct.

  The third trial was held in May 1963 and ended in a mistrial after the eighth day because, one, there was a hung jury, and two, Carmine Persico was hospitalized with gunshot wounds.

  Carmine got into minor trouble in December 1963, between the third and fourth hijacking trials. A cop tried to pull him over for a traffic violation. Carmine hit the accelerator and allegedly ditched a gun. He was caught and booked at the Bergen Street Precinct station.

  The fourth trial was the longest, lasting from January to April 1964, approximately sixteen weeks. Carmine and four remaining co-defendants were convicted and sentenced by U.S. District Judge George Rosling in Brooklyn to fourteen years and nine months in prison. During the trial, the prosecution called Persico, “one of the most dangerous criminals in the east.”

  Those verdicts were also overturned in appellate court because of errors in the trial judge’s jury charge, as well as yet more of the dreaded prosecutorial misconduct. Albanese’s defense witness, a guy named Eppilitto, died between the fourth and fifth trials.

  Eppilitto’s testimony was part of yet another attempt by Albanese’s defense to make Gasper Vaccaro look like a bad guy. The other part came when Mrs. Albanese took the stand and testified that Vaccaro had tried to rape her. Vaccaro was even impeached by defense witnesses for getting things wrong. He testified that when the truck was hijacked it was parked on the Nevins side of the terminal, so the defense put on a witness who said, no, the truck was on the Union Street side.

  The fifth trial took place in Courtroom 8C in Brooklyn Federal Court during April and May 1968, with U.S. District Judge John F. Dooling Jr. presiding. Carmine was defended by Maurice Edelbaum, a Fordham Law grad considered to be a bit of a miracle worker. He had in 1962 worked tirelessly, and pro bono, for the freedom of
one Isidore Zimmerman, a New York City doorman who spent a quarter century behind bars for a crime he didn’t commit. In 1967, Edelbaum successfully got a medical student off for the murder of his mother-in-law with an insanity plea, the story being that his client dropped LSD before the murder and wasn’t responsible for his actions.

  But there were indications that luck was not running Edelbaum’s way as he prepared to defend Carmine. He tripped on a rubber mat in the courthouse’s entrance hall while leaving for lunch and fell heavily, breaking his arm. He was rushed to the Long Island College Hospital emergency room. The trial was delayed a week, and he spent the rest of the trial in a sling.

  Special prosecutor Victor Woerheide tried the case for the Department of Justice in Brooklyn federal court. Woerheide would go on to gain fame as the prosecutor of Dr. Jeffrey MacDonald, who was supposed to have murdered his family, a case that spawned two bestselling true-crime books, Fatal Vision and Fatal Justice.

  The fifth trial looked to spectators familiar with the first four, to be a ho-hum affair. Then came the morning when there was extra security in the courtroom. The doors were double-guarded by armed deputy marshals. There were ten marshals in all displaying sidearms. In addition, FBI agents and city detectives were sprinkled into the gallery. Spectators were searched before entering the courtroom, a commonplace practice now but an indication of particular security concerns in 1968.

  Edelbaum complained about the show of force: “Your honor, it looks like an armed camp in here.”

  Judge Dooling all but ignored the comment and said, “Will the prosecution call its first witness?”

  “Prosecution calls Joseph Valachi.”

  That got everyone’s attention. Valachi was already famous as the mob’s first nationally famous rat. He’d been delivered to the courthouse by helicopter. His notoriety stemmed from his nationally televised gravel-voiced testimony before the Senate Investigation Committee in 1963. He introduced America to the term La Cosa Nostra, our thing, which he may have been using generically, but it stuck. Valachi told the world he’d been a made man since 1930 when he was twenty-seven and he’d been inducted in the back room of a New York City restaurant. A gun and knife were on the table. Blood was drawn from his finger as he told his inductors, “If I talk, I die.” His sponsor was Vito Genovese. For thirty-two years he kept his lip buttoned. He spent eighteen of those years in prison—for burglary, robbery, assault, gambling, and dope.

  Carmine shot Valachi a nasty glance as the surprise witness took the oath, but Valachi made no eye contact. As history would have it, this was the only time Valachi ever testified for any prosecution.

  Carmine’s defense immediately objected. Valachi couldn’t testify because it was a well-known fact that he was nuts. Judge Dooling agreed to a brief competence hearing with the jury out of the room.

  “Who is President of the United States?” Judge Dooling asked Valachi.

  “Still LBJ, right?”

  “What is today’s date?”

  “It’s about April 20,” Valachi replied. “I’m guessing, I’ve lost track. I haven’t been paying too much attention to that.” He’d been in solitary confinement in Milan, Michigan, for the past twenty-five months.

  He was asked about a suicide attempt he’d made when he was first thrown into solitary. Was it because of disappointment that he hadn’t been rewarded following his Senate testimony?

  “It was a little of this and a little of that. There was a thirty-year draft in my cell. I was cold and upset.”

  Judge Dooling proclaimed Valachi competent and ordered that the jury be brought back in.

  Valachi’s testimony revolved around statements he had heard by and about the defendants in April 1959 and June 1961. Valachi said Albanese told him that “Chink” (Vaccaro) and “Junior” (Persico) went out with him on hijackings, including the Akers Motor Lines Terminal job. Valachi said Junior was a street guy. Always on the streets. He fought on the streets at a very early age, and he was always at his best outside. If there was business on the streets, Carmine was there. A tremendous earner, a guy with range: labor, extortion, loansharking, gambling, hijacking, hitman. Of course, hitman, yes. Once, Valachi testified, Carmine “wanted some advice. He knew I’d been around. I knew who he was, he knew who I was, through friends. He wanted to know—first he told me that he’d been paying taxes on all the hijackings that he’d been pulling especially the one he was on trial for, Akers truck. He paid Joe Profaci $1,800. He wanted to know if he was in his rights having trouble with Joe Profaci.”

  “And what did you say to him?”

  “I told him it was not taxes at all. It was an out and out shakedown and he was one-hundred percent right in having trouble with Joe Profaci.”

  “Did Mr. Persico say anything to Mr. Albanese or to Mr. McIntosh in your presence?”

  “He told them in the future to pay attention to Joe. Listen to him. You want any advice, ask him. That’s all.”

  “When he said Joe, to whom was he referring?”

  “Me.”

  Mrs. Albanese did not testify at the fifth trial regarding Vaccaro’s attempted rape because Valachi had already testified that Albanese admitted the rape story involving his wife had been fabricated.

  As Valachi testified, he was serving a life sentence for the murder of a cellmate he believed had been assigned to kill him. The underworld had a 100K price tag on Valachi’s head, but Valachi got the assassin before he could get him. The victim could run but not hide as the men shared a prison cell.

  The court was trying to keep the jury in the dark regarding “possible organized crime connections.” Best guess is that the jurors figured that part out on their own. That task became more difficult after Valachi testified. The press was out to sell newspapers and didn’t care what the jurors knew and didn’t know. Newspapers said the defendants were mob, that the case had been tried four times previously, and that the people at this trial were represented by a special prosecutor.

  Judge Dooling refused to call a mistrial because of the publicity, after individually interviewing each juror regarding what he’d seen and heard, and if it affected his ability to make a fair determination of innocence or guilt. The defense, of course, argued that the very calling of Valachi as a witness told the jury that this was a mob trial.

  The jury convicted across the board on May 9, 1968. It seemed to legal experts as if the fifth trial did the trick, but not so fast. The appeals of the conviction would take Carmine Persico’s name all the way to the Supreme Court of the United States.

  The sixties as we’ll see might’ve been Carmine’s best decade, but it was spent with the constant threat of imprisonment hanging over his head, and it seemed like no more than a week or two went by between court appearances. The appeals following the fifth trial were considered by the Supreme Court during its October 1970 term. The convictions of Persico, Albanese, and Spero were under scrutiny. Longtime friend and bodyguard Hugh McIntosh was also appealing but under separate petition.

  The case had set records for longevity, longest in New York Eastern District history. Surely there had to be a point where the gnaw-on-your-ankle-till-you-fall methods used by federal investigators and prosecutors came to a halt, a time for the U.S. Government to say uncle.

  So among the questions the SCOTUS agreed to look at were the many trials (all five of them) the defendants were forced to endure. True, it was up to the prosecutor’s discretion whether or not to re-try a case if it ended in a mistrial, but after four attempts and no clear-cut decision, a fifth trial could be construed as piling on. Shouldn’t there be a point when it becomes a legal necessity for a prosecutor to concede defeat? Shouldn’t something approaching double jeopardy apply? The appeal referred to the way the defendants were treated, now more than a decade past the crime, as “overall unconstitutional aggressiveness.”

  SCOTUS not only had to determine if the overall oppressiveness of the five trials was constitutional but also if the fifth trial in particular met with the
minimum standards of fairness, in that the springing of surprise witnesses such as Joseph Valachi with a lot of La Cosa Nostra talk had to have influenced the jury. The Valachi surprise was a prosecutorial ambush. The petitioner wondered if this didn’t infer judicial misconduct as well, as it would have been impossible for the ambush to have been pulled behind the judge’s back, and it certainly shouldn’t have been pulled behind the defense’s back. Didn’t the eight years between the indictment and the conviction in itself demonstrate that the defendants had been denied their right to a speedy trial?

  The answers to these questions were no. And Carmine eventually did a long stretch for hijacking.

  And now back to our chronology . . .

  * * *

  There can be argument as to what gunshot or garrote started the Profaci-Gallo war, but the seeds were planted in 1959 when troublemakers Joey and Larry Gallo convinced Frankie Shots that all of this tribute money going to Profaci was madness. Frankie Shots said, yeah, he’d had it with Profaci, and he wasn’t paying the tithe anymore. The Gallos said they would go to Profaci and get Frankie a better deal. That never happened.

  Frankie’s numbers game, the same game that Carmine worked on when he joined Frankie Shots’ crew, earned $7,000 a day, almost all in one-dollar bills. The numbers’ popularity was the reason the government took it over, called it Lotto, and turned it into a “voluntary tax.” The numbers were making millions of dollars for Profaci, even as Profaci was alienating the Gallo crew with increasing tribute demands.

  When Profaci learned that Frankie Shots had stopped paying tribute, he was a dead man. Profaci could be every bit as deadly as he was avaricious. Mutinous behavior needed nipping in the bud. A message needed to be sent: Tribute was to be paid promptly and in full—or else. Just to be cruel, and to test loyalty, Profaci wanted a member of Frankie’s own crew do the dirty work.