# Opinion

> Court of Appeals for the Third Circuit · September 10, 1990 · 910 F.2d 1084

URL: https://www.frixlaw.com/law-library/cases/546225

## Case

- **Full name:** United States v. Anthony Pungitore, Jr., in No. 89-1371. United States of America v. Joseph Grande. In No. 89-1372. United States of America v. Francis Iannarella, Jr., in No. 89-1393. United States of America v. Phillip Narducci. In No. 89-1395. United States of America v. Salvatore Scafidi. In No. 89-1396. United States of America v. Nicholas Virgilio. In No. 89-1397. United States of America v. Charles Iannece. In No. 89-1400. United States of America v. Salvatore Wayne Grande. In No. 89-1401. United States of America v. Joseph Pungitore. In No. 89-1402. United States of America v. Frank Narducci, Jr., in No. 89-1403. United States of America v. Ralph Staino, Jr., in No. 89-1404. United States of America v. Salvatore J. Merlino. In No. 89-1409. United States of America v. Nicodemo Scarfo. In No. 89-1446. United States of America v. Joseph Ciancaglini. In No. 89-1448
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 10, 1990
- **Citations:** 910 F.2d 1084
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/546225

## How later opinions describe it (automated extraction)

- affirming admission of expert testimony regarding structure of organized crime families

## Opinion text

910 F.2d 1084
59 USLW 2167 , 31 Fed. R. Evid. Serv. 115
UNITED STATES of America
v.
Anthony PUNGITORE, Jr., Appellant in No. 89-1371.
UNITED STATES of America
v.
Joseph GRANDE. Appellant in No. 89-1372.
UNITED STATES of America
v.
Francis IANNARELLA, Jr., Appellant in No. 89-1393.
UNITED STATES of America
v.
Phillip NARDUCCI. Appellant in No. 89-1395.
UNITED STATES of America
v.
Salvatore SCAFIDI. Appellant in No. 89-1396.
UNITED STATES of America
v.
Nicholas VIRGILIO. Appellant in No. 89-1397.
UNITED STATES of America
v.
Charles IANNECE. Appellant in No. 89-1400.
UNITED STATES of America
v.
Salvatore Wayne GRANDE. Appellant in No. 89-1401.
UNITED STATES of America
v.
Joseph PUNGITORE. Appellant in No. 89-1402.
UNITED STATES of America
v.
Frank NARDUCCI, Jr., Appellant in No. 89-1403.
UNITED STATES of America
v.
Ralph STAINO, Jr., Appellant in No. 89-1404.
UNITED STATES of America
v.
Salvatore J. MERLINO. Appellant in No. 89-1409.
UNITED STATES of America
v.
Nicodemo SCARFO. Appellant in No. 89-1446.
UNITED STATES of America
v.
Joseph CIANCAGLINI. Appellant in No. 89-1448.
Nos. 89-1371 to 89-1372, 89-1393, 89-1395 to 89-1397,
89-1400 to 89-1403, 89-1409, 89-1446 and 89-1448.
United States Court of Appeals,
Third Circuit.
Argued and Submitted under Third Circuit Rule 12(6) April 25, 1990.
Decided Aug. 1, 1990.
Rehearing and Rehearing In Banc Denied Sept. 10, 1990.
Michael J. Kelly, Asst. Defender, Defender Ass'n of Philadelphia, Federal Court Div., Philadelphia, Pa., for Anthony Pungitore, Jr.
Willis W. Berry, Jr., Philadelphia, Pa., for Joseph Grande.
Robert E. Madden, Philadelphia, Pa., for Francis Iannarella, Jr.
Stanford Shmukler (argued), Philadelphia, Pa., for Frank Narducci, Jr. and Phillip Narducci.
Christopher G. Furlong, Springfield, Pa., for Salvatore Scafidi.
Stephen P. Patrizio (argued), Dranoff & Patrizio, Philadelphia, Pa., for Nicholas Virgilio.
Louis T. Savino, Jr., Philadelphia, Pa., for Charles Iannece.
Hope C. Lefeber, Philadelphia, Pa., for Salvatore Wayne Grande.
Peter Goldberger (argued), Philadelphia, Pa., for Joseph Pungitore.
M.W. Pinsky, Westmont, N.J., for Ralph Staino, Jr.
Edwin J. Jacobs, Jr., Jacobs & Bruso, PA, Atlantic City, N.J., for Salvatore J. Merlino.
Robert F. Simone, Philadelphia, Pa., Milton E. Grusmark (argued), Miami, Fla., for Nicodemo Scarfo.
Robert E. Welsh, Jr. (argued), Philadelphia, Pa., for Joseph Ciancaglini.
Michael M. Baylson, U.S. Atty., Frank J. Marine (argued), Lead Appellate Atty., U.S. Dept. of Justice, Washington, D.C., Joel M. Friedman, David E. Fritchey, Arnold H. Gordon, Louis R. Pichini, Albert J. Wicks, Asst. U.S. Attys., U.S. Dept. of Justice, Philadelphia Strike Force, Philadelphia, Pa., for the U.S.
Before BECKER, GREENBERG and GARTH, Circuit Judges.
1
OPINION OF THE COURT
GREENBERG, Circuit Judge.
TABLE OF CONTENTS
I. INTRODUCTION 1097
II. THE FACTS 1097
A. MURDERS AND ATTEMPTED MURDERS 1099
B. ILLEGAL GAMBLING OPERATIONS 1101
C. THE SHAKEDOWN OPERATION 1102
III. DISCUSSION 1102
A. CONSTITUTIONALITY OF THE RICO STATUTE 1102
B. SUCCESSIVE PROSECUTIONS 1105
1. Dual Sovereignty: Successive Prosecutions for the Falcone 1105
and Testa Murders
2. Successive Federal Prosecutions of the Rouse Extortion 1107
3. Successive RICO Prosecutions of Joseph Ciancaglini 1112
C. SENTENCING ISSUES 1115
1. Consecutive Sentences for RICO Conspiracy and Substantive 1115
Offenses
2. Consecutive Sentencing of the Narduccis following state 1117
life sentences for the D'Alfonso murder
D. PROSECUTORIAL MISCONDUCT 1120
1. Improper Prosecutorial Vouching 1120
2. Other Prosecutorial Misconduct 1127
E. SUFFICIENCY OF THE EVIDENCE 1128
1. Virgilio 1129
2. Ciancaglini 1133
F. CHALLENGES TO THE INDICTMENT 1134
1. Alternative Theories on Murder Predicates and Inclusion of 1134
Conspiracies as Predicate Acts in RICO Conspiracy Charge
2. Duplicitous Pleading 1135
3. Claim of Fatal Variance 1136
G. IMPLICATION OF SCARFO'S ATTORNEY IN ROUSE EXTORTION 1137
1. Anthony Pungitore's Claim of Joint Representation 1139
2. Prejudicial Effect on Scarfo's Co Defendants 1141
H. CHALLENGES TO THE JURY INSTRUCTIONS 1144
1. Instructions Regarding Reasonable Doubt 1144
2. Instructions Regarding RICO and Co Conspirator Liability 1145
I. EVIDENCE QUESTIONS 1148
1. Expert Testimony, Special Agent James Kossler 1148
2. Reference to D'Alfonso Murder 1149
3. Evidence of Iannece's Flight 1150
IV. CONCLUSION 1152
----------
I. INTRODUCTION
2
These consolidated appeals are the latest saga in the government's dismantling of the Philadelphia branch of La Cosa Nostra. Following a ten week trial which concluded on November 19, 1988, in the Eastern District of Pennsylvania, appellants, all members of the Nicodemo Scarfo crime family, were found guilty of conspiring to participate and participating in the affairs of an enterprise through a pattern of racketeering activity and, in some cases, through the collection of unlawful debts, in violation of RICO, 18 U.S.C. Secs. 1962 (d) and (c). 1
3
In addition, Joseph Pungitore was convicted of participating in a conspiracy to distribute methamphetamine and Nicodemo Scarfo, Salvatore Merlino, and Joseph Ciancaglini were convicted of possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. Sec. 841 (a)(1). 2 Scarfo, Merlino and Joseph Pungitore, also were convicted of engaging in illegal sports bookmaking, in violation of 18 U.S.C. Sec. 1955 . Finally, Francis Iannarella, Jr. and Salvatore Scafidi were convicted of conducting an illegal lottery business, in violation of 18 U.S.C. Sec. 1955 (b). Appellants filed post trial motions which were denied by the district court. United States v. Scarfo, 711 F.Supp. 1315 (E.D.Pa.1989). These appeals followed.
II. THE FACTS
4
We are bound, after a jury has delivered a guilty verdict, to interpret the evidence in a light most favorable to the government. With that in mind, we offer the following background facts.
5
The enterprise involved in this case was part of a nationwide criminal organization commonly known as the Mafia or "La Cosa Nostra." 3 La Cosa Nostra (LCN) is headquartered in New York and headed by a commission of eleven "bosses," who in turn direct the illegal activities of regional organized crime "families." The national scope of the Mafia is demonstrated by the fact that of its eleven bosses five are from New York City and six are from other cities throughout the country. The Mafia seems to operate a government parallel to that in Washington, although as will be seen changes in its power structure are far more abrupt. Tr. 10/26/88 at 178. The 60 member Scarfo crime family involved here covers Mafia operations in Eastern Pennsylvania and much of New Jersey. Id.
6
A crime family is a highly structured criminal enterprise with a well defined chain-of-command. At the apex of the family's hierarchy is the "boss," who carries sole authority to approve murders and induct new members into the family. Tr. 10/26/88 at 178. A "consigliere" and "underboss" comprise the next tier in the family's organizational hierarchy. Id. at 178. The consigliere functions as an advisor to the boss and assists in the settlement of disputes among members, while the underboss oversees the family's illegal endeavors when the boss is unavailable and conveys orders to members. Under the consigliere and underboss are the "capos" or "captains," who control "crews" or "regimes" of "soldiers," otherwise known as "made men." The soldiers, in turn, sponsor various "associates," who are best described as criminal colleagues of the family who, for various reasons, have not been formally initiated into its ranks.
7
The criteria for becoming a member of the Scarfo family are somewhat daunting. To qualify, an aspiring associate must be a male of Italian descent who has participated in a murder pursuant to the boss's order. Tr. 10/10/88 at 80, 90. A primary incentive for joining the family is that the soldier then commands considerable respect from non-Mafia criminals, as his illegal endeavors are backed by "the strength of the Mafia," that is, its well-founded reputation for achieving its objectives through violent means. Tr. at 10/26/88 at 201. Indeed, its members recognize it as "a second government." Id. The soldier also becomes privy to the family's "political" and "union" connections. Id. at 200-01. As Thomas DelGiorno put it, becoming a ranking member of the family means the "difference of being in the major leagues and minor leagues as far as gangsters are concerned." Tr. 10/10/88 at 79. Of course, the Mafia does not look lightly upon the obligations of its members, for loyalty to it comes before "everything, your wife, your kids, your mother, everything." Tr. 10/28/88 at 201. The position of Frank and Phillip Narducci as appellants in this case demonstrates this as their father was murdered on Scarfo's orders.
8
It is difficult to chart the history of the Philadelphia Mafia, given its frequent personnel changes caused by the violent deaths of several of its members. It is clear, however, that Angelo Bruno served as boss from approximately 1960 until his murder in 1980, when he was succeeded by Phillip Testa. 4 Appellant Nicodemo Scarfo functioned as consigliere under Testa and became boss after Testa was murdered by being blown up in his house in early 1981. Scarfo initially appointed Frank Monte as his consigliere and appellant Salvatore Merlino as his underboss. However, in February, 1986, Scarfo demoted Merlino to capo and replaced him with Philip Leonetti, who previously had been a capo. 5
9
In 1981, the capo ranks included appellant Joseph Ciancaglini, Frank Narducci, Sr., and Leonetti, as well as Santo Idone, Joseph Scafidi and Freddie Iezzi. Around January, 1982, Lawrence Merlino, Salvatore Merlino's brother, was promoted to capo, and appellants Francis Iannarella and Joseph Pungitore, along with co-conspirators Eugene Milano, Thomas DelGiorno and Pasquale Spirito, became soldiers. 6 Existing members of the soldier ranks included appellants Salvatore Wayne Grande and Frank Narducci, Jr. Appellant Nicholas Virgilio became a soldier a few months later. In the fall of 1984, appellants Charles Iannece and Joseph Grande, 7 along with government witness Nicholas Caramandi, became made members and appellant Iannarella and DelGiorno were promoted to acting capos. Appellant Phillip Narducci and Nicholas Milano became made members in February, 1986, and Iannarella and DelGiorno became full capos. Finally, in June 1986, appellants Salvatore Scafidi, Ralph Staino, Jr. and Anthony Pungitore, Jr. became made members.
10
Over the course of the conspiracy, which was alleged in the indictment to run from April, 1976 through October, 1987, Jt.App. at 128, the Scarfo family's criminal activities included nine murders, four attempted murders, drug trafficking, the conduct of illegal gambling businesses, the extortionate collection of "street taxes" from non-LCN drug dealers and operators of illegal gambling businesses, the collection of unlawful gambling debts, and the collection of various usurious loans. We shall not describe in detail the factual circumstances of all of these crimes because, with few exceptions, appellants understandably have not challenged the sufficiency of the evidence to support their convictions. However, it is appropriate for us to overview them briefly so as to convey a sense of the extraordinary breadth of the evidence the jury had before it of appellants' criminal activity in Pennsylvania and southern New Jersey.
A. MURDERS AND ATTEMPTED MURDERS
11
The jury's answers to special interrogatories on the RICO charges indicated that each of the appellants had participated in a murder, attempted murder, or conspiracy to murder. Jt.App. at 1230-62. While the motives for the murders and attempted murders varied, each appears to have been carefully planned and carried out pursuant to Scarfo's instructions.
12
Vincent Falcone, a cement contractor who socialized with various members of the enterprise, including Scarfo, Philip Leonetti, and Lawrence Merlino, tr. 10/25/88 at 48-49, was murdered on December 16, 1979, because he made disparaging comments concerning Scarfo and Philip Leonetti. 8 Joseph Salerno, Jr. testified that in late 1979, Scarfo asked him in a restaurant in Philadelphia if he had any guns and he answered that he owned a .32 caliber revolver and a rifle. 9 Tr. 10/25/88 at 43-44. A few weeks later, at Scarfo's request, Salerno brought the guns to the office of Scarf, Inc. on Georgia Avenue in Atlantic City where Scarfo, Leonetti, and Lawrence Merlino took possession of them. Id. at 47-48.
13
Salerno further testified that on the night of the murder, he was home in Brigantine, New Jersey, when he received a call to go over to the office of Scarf, Inc. which he did. When he arrived there he indicated that he wanted to go home to be with his children and to decorate the Christmas tree but instead was induced to drive with Falcone, Leonetti, and Merlino to an apartment in Margate, New Jersey, where Scarfo was waiting. Id. at 55-57. Scarfo, who was watching television, told Falcone to fix some drinks. Id. at 57. Within minutes after Falcone reappeared with the drinks, Leonetti, using Salerno's gun, shot Falcone once in the head. According to Salerno, Scarfo then stated " 'I think, I'll give him another one.' " Leonetti responded, " 'No ... I'll give it to him' " and fired an additional shot into Falcone's chest. Id. at 58. Pursuant to Scarfo's instructions, Leonetti and Merlino then left the premises to dispose of the gun and pick up Falcone's car, id. at 58, and Salerno tied up Falcone's body and wrapped it in a blanket. As Salerno performed his assigned task, Scarfo stated " 'I love this ... I love it.' " Id. at 62. When Merlino returned with Falcone's car, Salerno helped him put Falcone's body into the trunk. Id. at 65, 69. The co-conspirators then abandoned the car in another location in Margate, cleaned the apartment and disposed of their clothing in a sewer. They then had dinner at Scarfo's apartment. Tr. 10/25/88 at 69-70, 71-72, 74, 76. Falcone's murder was charged against Scarfo and co-defendant Leonetti as racketeering act 3.
14
In December 1979, Salerno began to cooperate with state and federal authorities investigating the Falcone murder and other crimes committed by members of the enterprise. Tr. 10/25/88 at 83. With good reason he was concerned about his safety and that of his family and thus sought and obtained protection from the Atlantic County Prosecutor. In the summer of 1982, he testified against Scarfo in a proceeding before the New Jersey Division of Gaming Enforcement and in a proceeding concerning a union described as "Local 54 Bartender's Union." Tr. 10/25/88 at 92. After this testimony Scarfo, Salvatore Merlino, and Phillip Narducci attempted to murder Salerno's father, Joseph Salerno, Sr. Tr. 10/11/88 at 20-23; 10/25/88 at 92. At that time, Salerno, Jr. was inaccessible because he and his family had entered the federal witness protection program. Tr. 10/25/88 at 88. Phillip Narducci told DelGiorno that he appeared at Joseph Salerno, Sr.'s office in Wildwood Crest, New Jersey, and shot him when he opened the door. Id. at 22. On these facts, Scarfo, Merlino and Narducci were found guilty of racketeering acts 7(a) and (b), which charged them with conspiracy to murder and attempted murder.
15
Judge Edwin Helfant's murder also is indicative of the way in which this enterprise operated. On February 15, 1978, Virgilio, wearing a ski mask to avoid identification, shot and killed Judge Helfant, a former municipal court judge in Atlantic County, New Jersey, in the Flamingo Bar and Restaurant in Atlantic City. Scarfo later told DelGiorno and others, described by DelGiorno as "Philip, Chuckie, Larry, Faffy, [and] the Blade," that he had instructed Virgilio to kill Judge Helfant because Helfant had accepted $12,000 to fix a case involving Virgilio but had not done so. Tr. 10/10/88 at 132-33. Scarfo drove the get-away car at the time of the murder and later arranged a false alibi for Virgilio. Id. at 133-35. Scarfo and Virgilio were found guilty of the Helfant murder as charged in racketeering act 1 of the RICO counts.
16
The evidence also shows that the appellants killed in response to a member's showing of disloyalty to the organization, 10 to a drug dealer's refusal to pay the street tax to the enterprise, 11 and to eliminate a faction of the enterprise's membership which threatened Scarfo's leadership. 12
B. ILLEGAL GAMBLING OPERATIONS
17
Appellants conducted four illegal gambling operations, three numbers businesses and a sports betting business. Thomas DelGiorno ran the most profitable numbers business. He testified that his business operated continuously from 1976 until 1986, when he began to cooperate with law enforcement officials, tr. 10/11/88 at 83-85. DelGiorno employed between ten and thirty individuals as salaried numbers writers. Id. at 86, 88. The writers turned their work into one of up to five "numbers offices" which were located, for the most part, in private homes. Id. at 86-87. Over the business's ten-year history, average revenues ranged from $10,000 to $100,000 per week. Id. at 89-90. This business was able to compete with the state lotteries because the players could get credit, would be paid right away if they hit, and would not have to pay taxes on their winnings. Id. at 89.
18
Appellant Iannarella began work for DelGiorno as a numbers office employee receiving bets in the late 1970's, and served as manager of the business from the early 1980's until mid-1985, when he was replaced by Scafidi. Id. at 91-94. As managers, Iannarella and Scafidi were responsible for supervising all of the offices and employees, collecting gambling debts and bets from the numbers writers, and paying the employees. Id.
19
In 1982, appellant Salvatore Merlino and DelGiorno became partners in another numbers business in the Philadelphia area. The Merlino-DelGiorno business was managed by Scafidi and received approximately $3000 to $5000 in bets each week, until it closed operations in February, 1986. Id. at 96-98.
20
A third numbers business was operated by appellant Joseph Pungitore in partnership with Michael Madgin from December, 1985 until early 1987. Pungitore financed the business and supervised collections from the numbers writers. Pungitore's business regularly employed more than five workers and brought in approximately $14,000 in bets each week.
21
The illegal sports betting business was conducted by appellants Scarfo, Salvatore Merlino and Joseph Pungitore and co-defendant Leonetti in Philadelphia from 1983 until late 1986. In 1983, Pungitore, DelGiorno and Salvatore Testa each invested $25,000 as partners in the business. After Salvatore Testa was murdered on September 14, 1984, Scarfo and Salvatore Merlino assumed his one-third interest in the business and split one third of the business's profits. When Philip Leonetti replaced Merlino as underboss in February, 1986, he took over Merlino's ownership interest. Joseph Pungitore managed the business's daily operations and, after DelGiorno became a cooperating government witness, controlled the business's $300,000 bank roll. Tr. 10/12/88 at 24.
22
The sports betting operation appears to have been a highly successful endeavor, which provided year-round profits from football, baseball and basketball bets. Tr. 10/12/88 at 16-20. It involved 30 to 40 bookies turning their work into five offices, received more than $2000 in bets on every day of its operation, and on a typical Sunday received $175,000 to $200,000 in bets. Id. Tr. 10/21/88 at 25-35.
C. THE SHAKEDOWN OPERATION
23
In early 1982, Scarfo approved a scheme to extort money from drug dealers and bookmakers. Tr. 10/12/88 at 36-37, 47-48. Ciancaglini told DelGiorno that he and Pat Spirito, with Scarfo's permission, had formed a crew, made up of Charles Iannece, Nicholas Caramandi, and Ralph Staino, to extort or "shake down" bookmakers, and suggested that DelGiorno form a similar crew. Tr. 10/12/88 at 47-48. Ciancaglini was in charge of the crew and Spirito, a made member, was responsible for directly supervising its activities. The crew received half of the proceeds from the shakedowns, and the remainder was equally divided among Scarfo, Ciancaglini, Salvatore Merlino, Philip Leonetti, Lawrence Merlino and Frank Monte. Id. at 49. After Frank Monte was killed in 1982, Salvatore Testa received his share of the shakedown proceeds, until he too was killed on September 14, 1984. Id. at 66. Victims of the shakedowns were told that they would be killed if they failed to pay the "street tax." Id. at 37.
24
Eventually, additional crews were formed and the co-conspirators extended their shakedown operations to include drug dealers. Although bookmakers paid regular sums every week, receipts from drug dealers, called "extras," were more sporadic, because "[d]rug dealers don't work every week." Id. at 70-71. In an average month, the shakedown proceeds ranged from $24,000 to $40,000. It is not clear from the record whether this sum included the "extras" from drug dealers. Id. at 71-72, 77.
25
The co-conspirators were careful not to shake down individuals associated with LCN. To that end, Scarfo, Leonetti, Salvatore Merlino, and DelGiorno provided the crews with names of individuals to target. 13 From the beginning of the scheme until about February, 1986, Caramandi delivered a weekly tally sheet recording the shakedown collections and the leadership's fifty percent share to various designated co-conspirators to give to Scarfo. Tr. 10/12/88 at 69-70; 10/21/88 at 21-26; 10/28/88 at 13-15. Thereafter, the tally sheets were delivered by assorted co-conspirators, including DelGiorno, Iannarella, Scafidi, and Joseph Grande, to either Scarfo or Leonetti. Tr. 10/12/88 at 69-70. In general, the shakedown operation appears to have been a highly structured and profitable endeavor. As the district court observed, "Literally hundreds of shakedown victims paid a street tax that provided a steady and lucrative stream of revenue for the mob." United States v. Scarfo, 711 F.Supp. at 1339 .
III. DISCUSSION
A. CONSTITUTIONALITY OF THE RICO STATUTE
26
Scarfo and Staino contend that the RICO statute is unconstitutionally vague because the pattern of racketeering requirement is not defined with sufficient clarity to place defendants on notice as to what conduct falls within its parameters. 14 Appellants rely heavily on Justice Scalia's concurrence in H.J., Inc. v. Northwestern Bell Telephone Co., --- U.S. ----, 109 S.Ct. 2893 , 106 L.Ed.2d 195 (1989), which hinted that the RICO statute might be vulnerable to a vagueness attack because the pattern of racketeering requirement is not susceptible of precise definition. Id. 109 S.Ct. at 2909 . Regardless of whether in other circumstances the uncertain reach of the RICO statute might raise problems of constitutional dimension, we find that the statute is perfectly clear as applied to appellants' conduct and therefore reject their vagueness challenge. 15
27
In H.J., Inc., a class of telephone customers sued Northwestern Bell under RICO's civil liability provisions, 18 U.S.C. Secs. 1964 (a) and (c), alleging that the defendant company had engaged in a scheme to bribe members of a state public utility commission to obtain favorable rate rulings. The Court of Appeals for the Eighth Circuit affirmed the district court's dismissal of the complaint under Fed.R.Civ.P. 12(b)(6) on the ground that the plaintiffs' allegation of a single unlawful scheme did not satisfy RICO's pattern requirement, which it held requires proof of multiple schemes. 829 F.2d 648 , 650 (8th Cir.1987), aff'g, 648 F.Supp. 419 (D.Minn.1986). The Supreme Court reversed, holding that a RICO pattern may be predicated upon a single criminal scheme as long as sufficient indicia of continuity are present. 109 S.Ct. at 2902 .
28
The Court explained that RICO's legislative history indicates that a pattern of racketeering must be based upon related predicates which "amount to or pose a threat of continued criminal activity." H.J., Inc., 109 S.Ct. at 2900 (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 , 105 S.Ct. 3275 , 87 L.Ed.2d 346 (1985)). However, while the Court conceded the difficulties inherent in formulating a precise standard for the continuity requirement, it rejected the defendant's contention that the requirement can be satisfied only through proof of multiple criminal schemes. Id. 109 S.Ct. at 2901 . According to the Court, evidence of multiple schemes is highly probative of the continuous nature of the defendant's criminal conduct but is not a necessary element of a RICO pattern. Under H.J., Inc., a pattern also may be established through proof that predicate acts forming a single criminal scheme were "a regular way of conducting defendant's ongoing legitimate business," such that absent intervention, they were likely to extend into the future, or through proof that a series of related predicates in fact extended over a "substantial period of time." Id. at 2902 . As the Court suggested, in view of the variety of ways that continuity may be established, defining a RICO pattern necessarily is a highly fact specific task.
29
Justice Scalia, in his concurrence, felt that the Court's "murky discussion" failed to provide sufficient guidance as to the outer boundaries of a RICO pattern. Id. at 2908 (Scalia, J., concurring). In particular, as pertinent to this appeal, he wrote:
30
No constitutional challenge to this law has been raised in the present case, and so that issue is not before us. That the highest Court in the land has been unable to derive from this statute anything more than today's meager guidance bodes ill for the day when that challenge is presented.
31
Id. at 2909 .
32
Predictably, appellants seize upon this language in arguing that the RICO pattern requirement is so vague as to offend due process.
33
A statute is unconstitutionally vague when it "either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926). See also Rode v. Dellarciprete, 845 F.2d 1195, 1199 (3d Cir.1988); Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir.1980). However, outside the First Amendment context, a party has standing to raise a vagueness challenge only insofar as the statute is vague as applied to his or her specific conduct. New York v. Ferber, 458 U.S. 747, 767-69 , 102 S.Ct. 3348, 3360-61 , 73 L.Ed.2d 1113 (1982); Rode, 845 F.2d at 1200 . 16 As stated in Ferber, this standing requirement "reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, ... and prudential limitations on constitutional adjudication." 458 U.S. at 767 , 102 S.Ct. at 3360 .
34
In light of Ferber, our inquiry must focus on whether persons of ordinary intelligence would know that the repeated commission of murder, extortion, illegal gambling, and usury offenses in furtherance of an organized crime enterprise constitute a pattern of racketeering under RICO. If so, then we need not further consider whether the pattern requirement is unconstitutionally vague as applied to the hypothetical conduct of third parties not before us, as appellants lack standing to assert the rights of those third parties.
35
As applied to the appellants' criminal activities, the "relationship plus continuity" test for a pattern is readily satisfied. The criminal conduct involved here was not isolated but extended over a substantial time, and the predicate acts cannot fairly be characterized as unrelated as they were committed pursuant to the orders of key members of the enterprise in furtherance of its affairs. Indeed, the independent existence of the enterprise connotes continuity and relatedness because the evidence showed overwhelmingly that the criminal agenda of the enterprise extended beyond the commission of any individual predicate acts: one joined LCN not to commit any one set of crimes but in fact to commit any crime that the boss wanted done. See United States v. Indelicato, 865 F.2d 1370, 1384 (2d Cir.) (en banc), cert. denied, --- U.S. ----, 110 S.Ct. 56 , 107 L.Ed.2d 24 (1989) ("[I]f the racketeering acts were performed at the behest of an organized crime group, that fact would tend to belie any notion that the racketeering acts were sporadic or isolated."). In sum, appellants' argument that they lacked notice that their conduct constituted a "pattern" under RICO is utterly devoid of merit, as they have engaged in a classic pattern of racketeering under RICO.
36
The result reached here is consistent with United States v. Angiulo, 897 F.2d 1169 (1st Cir.1990), which held that, however vague the statute may be as applied to legitimate businesses, its application to the criminal activities of organized crime families is so clear as to be beyond peradventure. Id. at 1180 ("A person of ordinary intelligence could not help but realize that illegal activities of an organized crime family fall within the ambit of RICO's pattern of racketeering activity."). See also Freeman, Jr. and McSlarrow, RICO and the Due Process "Void for Vagueness" Test, 45 Bus.Law. 1003, 1009 (1990) (suggesting that the vagueness problem identified in H.J. Inc. may be more pronounced in civil RICO cases than in criminal prosecutions because private plaintiffs are not politically accountable for their exercise of prosecutorial discretion). We think it is clear that the potential due process problems noted by Justice Scalia in H.J., Inc. are not present in organized crime cases. Unlike in H.J., Inc., which involved allegations of corruption within the ranks of a legitimate business, the application of RICO to the activities of the Scarfo crime family could not have come as a surprise to the members of the family. In fact, we have doubts that a successful vagueness challenge to RICO ever could be raised by defendants in an organized crime case. Certainly appellants' attempt to do so has been singularly unpersuasive.
B. SUCCESSIVE PROSECUTIONS
37
1. Dual Sovereignty: Successive Prosecutions for the Falcone and Testa Murders
38
Prior to the trial in this case, Scarfo was tried and acquitted in a New Jersey state court for the murder of Vincent Falcone. Likewise, Scarfo, Scafidi, Salvatore Merlino, Joseph Punigitore, Francis Iannarella Jr., Salvatore Wayne Grande, Charles Iannece and Joseph Grande were jointly tried and acquitted in Pennsylvania in the Court of Common Pleas for the murder of Salvatore Testa. The Falcone murder was charged as racketeering act 3 and the Testa murder was charged as racketeering act 12 in the RICO indictment. Appellant Iannarella brought an unsuccessful pretrial motion, joined in by several other appellants, to have both racketeering acts struck from the indictment on double jeopardy grounds. Jt.App. at 528. On appeal, Scafidi and Scarfo revisit this issue, arguing that, in view of their acquittals in state court, double jeopardy principles precluded the government from charging the Falcone and Testa murders as predicate offenses. Brief for Scafidi at 9-14; Brief for Scarfo at 17-22 .
39
This argument is contrary to a long line of Supreme Court cases which have held that a federal prosecution arising out of the same facts which had been the basis of a state prosecution is not barred by the double jeopardy clause. United States v. Wheeler, 435 U.S. 313, 320 , 98 S.Ct. 1079, 1084 , 55 L.Ed.2d 303 (1978); Abbate v. United States, 359 U.S. 187 , 79 S.Ct. 666 , 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377 , 43 S.Ct. 141 , 67 L.Ed. 314 (1922). See also Bartkus v. Illinois, 359 U.S. 121 , 79 S.Ct. 676 , 3 L.Ed.2d 684 (1959) (due process clause does not prohibit a state from prosecuting a defendant for the same act for which he was acquitted in federal court). The "dual sovereignty" doctrine rests on the premise that, where both sovereigns legitimately claim a strong interest in penalizing the same behavior, they have concurrent jurisdiction to vindicate those interests and neither need yield to the other. 17
40
The dual sovereignty doctrine has been interpreted by this court and others to mean that an acquittal in state court does not preclude the government from charging the offense subject to the acquittal as a predicate act in a subsequent RICO prosecution. United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir.), cert. denied, 467 U.S. 1252 , 104 S.Ct. 3535 , 82 L.Ed.2d 840 (1984); United States v. Russotti, 717 F.2d 27 (2d Cir.1983), cert. denied, 465 U.S. 1022 , 104 S.Ct. 1273 , 79 L.Ed.2d 678 (1984); United States v. Frumento, 563 F.2d 1083 (3d Cir.1977), cert. denied, 434 U.S. 1072 , 98 S.Ct. 1256 , 55 L.Ed.2d 775 (1978). In Frumento, which involved successive prosecutions for bribery and racketeering, we observed that the federal interest in prosecuting a RICO offense is significantly different than the state interest in prosecuting the predicate offenses:
41
[T]he appellants' conduct, even though it may have involved the same operative facts considered in the state court, also contains an additional element of significance to the federal courts though not the state court--the effect of their state operation on interstate or foreign commerce through a pattern of racketeering activity.
42
Frumento, 563 F.2d at 1088 .
43
In view of the lack of congruity between the federal and state interests in the defendants' activities, we held that the double jeopardy clause was no bar to the RICO prosecution, as the case fell squarely within the dual sovereignty doctrine. Id. 18
44
Frumento, of course, is controlling precedent in this Circuit and, absent in banc review, we are constrained to follow it. 19 See Internal Operating Procedures, Chapter 9.1 (1990). Appellants, however, insist that this case warrants an exception to the Frumento rule because here, the degree of federal and state cooperation in the two prosecutions was so extensive as to cast doubt on the premise that they in fact were brought by separate sovereigns acting independently. Relying on Russotti, 717 F.2d at 31 , and United States v. Aleman, 609 F.2d 298, 309 (7th Cir.1979), cert. denied, 445 U.S. 946 , 100 S.Ct. 1345 , 63 L.Ed.2d 780 (1980), they argue that the dual sovereignty doctrine is not unqualified but is subject to an exception where the federal authorities are so intimately involved in the state prosecution that it would be fundamentally unfair to allow them to bring a separate prosecution.
45
Even if we were to follow Russotti and Aleman in this regard, we would have no basis for applying the exception in this case. 20 Apparently, there was a considerable amount of federal-state cooperation in the scheduling of the D'Alfonso murder and federal racketeering trials, but appellants have not pointed to anything in the record to substantiate their claim that federal authorities had any involvement in the Falcone and Testa murder trials. Accordingly, we conclude that appellants' previous acquittals for the Falcone and Testa murders do not provide us with reason to disturb their RICO convictions on double jeopardy grounds.
46
2. Successive Federal Prosecutions of the Rouse Extortion
47
Scarfo has been the defendant in numerous federal prosecutions. Before the indictment issued in this case, we affirmed his conviction under 18 U.S.C. Secs. 2 and 1951 for conspiring to extort and extorting $1 million from a real estate developer, Rouse & Associates, in exchange for the cooperation of Councilman Leland Beloff in securing the passage of a zoning ordinance needed for Rouse's completion of a redevelopment project on the Philadelphia waterfront. United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910 , 109 S.Ct. 263 , 102 L.Ed.2d 251 (1988). However, in a separate trial, he was acquitted of charges that he conducted a continuous criminal enterprise (CCE), in violation of 21 U.S.C. Sec. 848 . United States v. Scarfo, E.D.Pa., No. 87-258.
48
He asserts that this RICO prosecution infringed his rights under the double jeopardy clause because the Rouse extortion offense forming the basis for his earlier conviction was charged as a predicate offense in the instant indictment. 21 He also suggests that his due process rights were violated by the successive prosecutions of the Rouse extortion and the CCE and RICO offenses in federal court, and the Testa and Falcone murders in state court because the government had knowledge of all of the offenses at the time of the first indictment and could have charged all of them at that time. According to Scarfo, the government purposefully brought successive prosecutions in order to embarrass and harass him and exhaust his economic resources to defend himself. Scarfo's Reply Brief at 10.
49
This argument with respect to double jeopardy on the facts cannot possibly be accepted. The Rouse extortion was only one of the 32 predicate acts which the jury found that Scarfo had committed. Thus, even if we deleted the Rouse act, we would affirm the convictions. See United States v. Riccobene, 709 F.2d 214, 228 (3d Cir.), cert. denied, 464 U.S. 849 , 104 S.Ct. 157 , 78 L.Ed.2d 145 (1983). In any event, Scarfo's arguments on this point are controlled by binding precedent in this Circuit.
50
In United States v. Grayson, 795 F.2d 278 (3d Cir.1986), cert. denied, 479 U.S. 1054 , 107 S.Ct. 927 , 93 L.Ed.2d 978 (1987), we held that prosecution for a RICO offense after an earlier conviction in federal court for a predicate offense is permissible under the double jeopardy clause. We began our analysis in Grayson with the observation that RICO's language and legislative history clearly evince Congress's intent to allow separate prosecutions and cumulative punishment of predicate offenses and RICO offenses. Id. at 283. 22 In view of that observation, we went on to consider whether such separate prosecutions are constitutional under the double jeopardy clause. We decided that a RICO offense "is not, in a literal sense, the 'same' offense as one of the predicate offenses," as a RICO violation requires proof of a "pattern of racketeering" and is intended to deter continuous criminal conduct. Id. In contrast, the predicate offenses are intended to deter discrete criminal acts, in Grayson, individual narcotics violations. Accordingly, we held that the double jeopardy clause does not bar a subsequent RICO prosecution which is based, in part, on predicate offenses for which the defendant already has been prosecuted. Accord United States v. Schell, 775 F.2d 559, 568 (4th Cir.1985), cert. denied, 475 U.S. 1098 , 106 S.Ct. 1498 , 89 L.Ed.2d 898 (1986); 23 United States v. Licavoli, 725 F.2d at 1049-50 . In view of Grayson, the inclusion of the Rouse extortion as a predicate offense in the RICO charges was consistent with the double jeopardy clause, notwithstanding Scarfo's previous conviction for that extortion. 24
51
Scarfo has urged us to reconsider the double jeopardy implications of successive prosecutions for predicate offenses and RICO offenses in light of the Supreme Court's recent decision in Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), which, in his view, implicitly overruled Grayson. 25 We believe that Scarfo reads Grady too broadly, as the reasoning in that decision logically extends only to offenses arising from a single discrete event. We do not think that the Supreme Court meant to imply that the double jeopardy clause forecloses successive prosecutions in cases of compound-complex felonies such as RICO, which involve several criminal acts occurring at different times in different places.
52
In Grady, the government sought to prosecute the defendant on homicide and assault charges stemming from a fatal automobile collision, after he had pleaded guilty to two misdemeanor traffic offenses arising from the same incident, driving while intoxicated and failing to keep to the right of the median. At the time the guilty pleas were received, the court was not informed that the collision had resulted in a fatality. 110 S.Ct. at 2088. A few weeks later, the court imposed minimum sentences for the offenses pursuant to the recommendation of an assistant district attorney who was unaware that another member of the District Attorney's Office was gathering evidence for the homicide prosecution. Id. at 2089. After the defendant was indicted on the homicide and assault charges, the prosecution filed a bill of particulars which identified three reckless or negligent acts upon which it would rely in proving its case: 1) operating a motor vehicle while intoxicated; 2) failing to keep to the right of the median; and 3) driving at a speed too fast for the weather and road conditions. Id.
53
The Supreme Court held that the double jeopardy clause barred the homicide and assault prosecution to the extent that the state, to establish essential elements of the offenses charged in the prosecution, would endeavor to prove conduct for which the defendant already had been prosecuted. Id. at 2093. 26 The Court acknowledged that under the test of Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932), the misdemeanor traffic offenses were not the "same offense" as homicide or assault, as each required proof of facts which the others did not. 110 S.Ct. at 2092-93. However, it decided that, in cases of multiple prosecutions, the double jeopardy clause requires more than a technical comparison of the statutory elements of the successively charged offenses. Id. Thus, under Grady, even if the offense charged in the second prosecution survives the Blockburger test, the prosecution will be barred if the state intends to prove beyond a reasonable doubt the same conduct forming the basis of the earlier conviction.
54
We realize that the language employed by the Supreme Court in its formulation of the "same conduct" test could be interpreted as extending double jeopardy protection to all situations where the government intends again to prove conduct constituting an offense subject to an earlier conviction. But we would not be justified in reading Grady so expansively. The Court in Grady relied substantially on Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980) 27 and Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), 28 the holdings of which implicitly were confined to situations involving discrete criminal events. Indeed, in Brown, the Court indicated that its holding, that a prior conviction for a lesser included offense bars a subsequent prosecution for the greater offense, was required by the insular natures of the offenses charged in the two prosecutions, joyriding and auto theft: "The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Id. at 169 , 97 S.Ct. at 2227 (emphasis added).
55
The double jeopardy analysis in Brown and Grady, its most recent progeny, cannot easily be transposed to the RICO context because by definition, a "pattern of racketeering" under RICO is made up of "a series of temporal or spatial units." Instead, we consider the double jeopardy problem posed by the successive prosecutions here to be more closely analogous to that in Garrett v. United States, 471 U.S. 773 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985), which rejected a double jeopardy claim based on the government's use of a drug offense for which a conviction had been obtained as a predicate offense in a later prosecution for engaging in a continuous criminal enterprise (CCE), in violation of 21 U.S.C. Sec. 848 . The Court in Garrett assumed without deciding that under the Blockburger test, a predicate narcotics offense is a lesser included offense of a CCE offense, id. at 790, 105 S.Ct. at 2417, but nevertheless rejected the defendant's attempt to invoke the rule in Brown v. Ohio as bar to the CCE prosecution. The Court stated:
56
We think there is a good deal of difference between the classic relation of the 'lesser included offense' to the greater offense presented in Brown, on the one hand, and the relationship between the [predicate] marihuana offense and the CCE charge involved in this case, on the other. The defendant in Brown had stolen an automobile and driven it for several days. He had engaged in a single course of conduct-driving a stolen car. The very same conduct would support a misdemeanor prosecution for joyriding or a felony prosecution for auto theft, depending only on the defendant's state of mind while he engaged in the conduct in question. Every moment of his conduct was as relevant to the joyriding charge as it was to the auto theft charge.
57
Id. at 787, 105 S.Ct. at 2416 (emphasis added).
58
After reviewing the defendant's drug trafficking activities, which spanned 5 1/2 years and several states, the Court concluded that the "significant differences" between the facts before it and those in Brown
59
caution[ed] against ready transposition of the 'lesser included offense' principles of double jeopardy from the classically simple situation presented in Brown to the multilayered conduct, both as to time and place, involved in this case.
60
Id. at 789, 105 S.Ct. at 2416.
61
The Court also considered that the defendant's CCE offense continued past the time he was indicted for the predicate offense, and was unwilling to "force the Government's hand" by compelling it either to withhold prosecution for the predicate offense until it was prepared to seek an indictment for the CCE offense, or to limit the scope of the CCE prosecution by bringing it at the time of the indictment for the predicate offense. Id. at 790, 105 S.Ct. at 2417.
62
We conclude that Grady, which finds its roots in "single transaction" cases such as Brown, is no more applicable in the instant circumstances than Brown was in
63
Garrett. 29 It is true that to the extent of the Rouse extortion, the government proved the "same conduct" needed to sustain the guilty verdict in the Rouse extortion trial. However, as was the case with the CCE offense in Garrett, Scarfo's RICO offense was far more extensive than the Rouse extortion. Moreover, Scarfo's racketeering activities continued after his indictment on January 5, 1987, for the Rouse extortion. The evidence showed that the RICO conspiracy extended to October, 1987 and that at least one of the predicate offenses supporting Scarfo's RICO convictions, his participation in the illegal sports bookmaking business, continued through April, 1987. As the Supreme Court observed in Garrett, "[o]ne who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting." 471 U.S. at 790 , 105 S.Ct. at 2417.
64
Thus, we reject Scarfo's double jeopardy argument on the basis of Grayson, in which we decided that successive prosecutions of RICO and its underlying predicates are constitutionally permissible, and Garrett, which distinguished single course of conduct crimes, like those in Brown and Grady, from compound-complex crimes, like those at issue here. However significant Grady v. Corbin may prove to be in cases of simple felonies, we are confident that it has nothing whatsoever to do with the compound-complex crimes at issue here.
65
Scarfo's argument that his successive prosecutions violated due process also lacks merit. 30 We acknowledge that successive prosecutions may work hardship on the defendant. Also, from the standpoint of judicial economy, it is preferable for the government to consolidate all charges in a single indictment. However, we are not prepared to say that it was a violation of Scarfo's due process rights for the government to charge the offenses in the manner it did. We could not possibly hold that the inclusion of the Falcone and Testa murders as predicate racketeering acts was overreaching on the part of the government, as the earlier murder prosecutions occurred in state court, beyond the control of the United States Attorneys involved in this case. As for the successive federal prosecutions, Scarfo's argument, which might best be characterized as an allegation of prosecutorial vindictiveness, presupposes that the government had available to it all of the evidence adduced in this case at the time of the Rouse and CCE trials and that it would have been practical to try the offenses together. Although at least two of the government witnesses in this case, DelGiorno and Caramandi also testified at the Rouse trial, Scarfo, 850 F.2d at 1017 , we have no way of knowing whether other evidence used to convict Scarfo and his co-conspirators was known to the government at the time of the earlier trials. Furthermore, as the government pointed out at oral argument, the CCE trial itself was a large trial which involved 27 defendants. Tr. of Oral Argument at 149. Had the government attempted to prosecute the RICO and CCE offenses together, the cases may have been completely unmanageable.
66
As other courts have pointed out, "[p]rosecutors have traditionally enjoyed discretion in deciding which of multiple charges against a defendant are to be prosecuted or whether they are all to be prosecuted at the same time." United States v. Cardall, 885 F.2d 656, 666 (10th Cir.1989). See also United States v. Becker, 892 F.2d 265, 269 (3d Cir.1989) (successive prosecutions of two separate drug conspiracies did not constitute harassment); United States v. Partyka, 561 F.2d 118, 124 (8th Cir.1977), cert. denied, 434 U.S. 1037 , 98 S.Ct. 773 , 54 L.Ed.2d 785 (1978). This is not to say that multiple prosecutions may never result in a denial of due process. See Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974) (vindictive prosecution brought in retaliation to defendant's invocation of procedural rights violates due process). However, to raise successfully a due process claim, the defendant must affirmatively establish vindictiveness, as the fact of multiple prosecutions, standing alone, does not prove an abuse of prosecutorial discretion. Considering that Scarfo has pointed to no evidence of prosecutorial abuse but relies solely on the fact of multiple prosecutions and that, barring double jeopardy problems, a single trial is not a " 'constitutional imperative,' " Cardall, 885 F.2d at 666 (citation omitted), we reject Scarfo's final challenge to his successive prosecutions.
67
3. Successive RICO Prosecutions of Joseph Ciancaglini
68
Ciancaglini filed a pretrial motion to dismiss the RICO charges against him on double jeopardy grounds, citing his earlier conviction for a RICO conspiracy involving the same enterprise. United States v. Riccobene, 709 F.2d 214 (3d Cir.), cert. denied, 464 U.S. 849 , 104 S.Ct. 157 , 78 L.Ed.2d 145 (1983). We rejected his double jeopardy claim in an earlier appeal, reasoning that the successive RICO charges did not involve the same offense for double jeopardy purposes because they alleged different patterns of racketeering activity occurring over different time periods. United States v. Ciancaglini, 858 F.2d 923, 930 (3d Cir.1988).
69
Ciancaglini now urges us to reconsider our decision in light of the record developed at trial. Specifically, he contends that the government relied on identical evidence in both trials and that it expressly conceded the existence of a single RICO conspiracy, thus shifting its ground from pretrial, where it alleged that it intended to prove the same enterprise but successive conspiracies. Brief for Ciancaglini at 14 . In support of these contentions, he points to two intercepted conversations, one dated April 20, 1976, and the other, November 4, 1977, which were introduced at both trials and which the government claimed were necessary to prove the existence of the enterprise. 31 Brief for Ciancaglini at 15-16 . In the course of his response to Ciancaglini's objection on relevancy grounds to the admission of the tapes, the prosecutor stated:
70
This tape was played ... in the prosecution of-in 1982 of Harry Riccobene, Mr. Ciancaglini and a number of other defendants.... [I]t's a very essential piece of evidence. Its coming from the mouths of these very defendants the fact that there is in fact a La Cosa Nostra, that Mr. Scarfo is a participant in this conversation, this is an ongoing conspiracy.
71
The conspiracy in this case by the indictment begins in April of 1976, a year before this tape-a year and a half before this tape was even made. The very nature of La Cosa Nostra is this is an ongoing criminal enterprise. 32
72
According to Ciancaglini, these remarks constitute an admission on the part of the government of a single RICO conspiracy. Therefore, he argues, we are not constrained by our earlier decision because it rested on an assumption that the government intended to prove successive conspiratorial agreements. He further argues that even if we conclude that the developments at trial did not undercut our reasoning in his prior appeal, Grady v. Corbin, supra, requires a different analysis.
73
In Ciancaglini, we held that double jeopardy is offended by successive RICO prosecutions only where, under a totality of the circumstances test, there is no material difference between the "enterprise" and the "pattern of racketeering activity" charged in the two indictments. Id. at 929. We specifically rejected a double jeopardy analysis for RICO conspiracies which focused solely on whether the indictments alleged the same conspiratorial agreement. 858 F.2d at 928 . We reasoned that because a RICO conspiracy is nothing more than an agreement to violate a substantive provision of RICO, the double jeopardy analyses for successive prosecutions under 18 U.S.C. Secs. 1962 (c) and (d) must be identical where, as here, both charges allege the same enterprise and underlying "pattern of racketeering activity." 858 F.2d at 929 . Indeed, it is meaningless to speak of a conspiratorial agreement under RICO without reference to the "enterprise" and "pattern of racketeering activity."
74
We fully appreciated the fact that this case involved the same enterprise as that charged in Riccobene. 858 F.2d at 929 . However, we were not troubled by that circumstance because Congress could not possibly have intended that
75
a defendant should be prosecuted only once for an ongoing RICO enterprise when, after being convicted of carrying out the enterprise's activities through one pattern, he allegedly continues to carry them out through a separate pattern.
76
Id. at 928-29 .
77
After carefully reviewing the indictments, we concluded that the alleged pattern of racketeering in this case differed substantially from that charged in Riccobene. 858 F.2d at 930 . Accordingly, we rejected Ciancaglini's double jeopardy claim. Id.
78
Under our reasoning in Ciancaglini, the government's reliance on the same evidence adduced in Riccobene to establish the existence of the enterprise hardly means that this prosecution subjected Ciancaglini to double jeopardy. Furthermore, we simply do not agree that the government conceded the existence of a single conspiratorial agreement. 33 Thus, the developments at trial do not require us to re-examine our prior decision, as the patterns of racketeering proven in the two RICO prosecutions were distinct. Of course, as Ciancaglini asserts, if our prior decision is inconsistent with Grady v. Corbin, we could not rely on it here. But we do not think that Grady undermines Ciancaglini.
79
As discussed above in conjunction with Scarfo's double jeopardy claim, Grady held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct which constitutes an offense for which the defendant already has been prosecuted." 110 S.Ct. at 2087 (emphasis added). By its own terms, Grady does not bar successive RICO prosecutions of the same defendant where the only common element of the two prosecutions is the enterprise because the enterprise, in itself, is not "conduct ... constitut[ing] an offense for which the defendant already has been prosecuted." First, as the RICO statute requires proof of both an enterprise and a pattern of racketeering activity, United States v. Turkette, 452 U.S. 576, 583 , 101 S.Ct. 2524, 2528 , 69 L.Ed.2d 246 (1981), the government's proof of the enterprise in the first RICO prosecution could not be considered proof of the conduct giving rise to the offense of which Ciancaglini previously was convicted. We do not think that under Grady, there necessarily is a double jeopardy problem whenever there is an overlap between the facts satisfying the elements of the successively charged offenses. Grady holds only that the double jeopardy clause bars a subsequent prosecution where, to prove an essential element of the offense charged in that prosecution, the government will relitigate conduct amounting to an offense subject to a previous conviction of the defendant.
80
Second and even more significantly, Ciancaglini is fully consistent with Grady because an "enterprise" within RICO does not include any conduct element. Although in this case, the enterprise was defined as "a group of individuals associated in fact," Jt.App. at 127A, evidence of the appellants' association was offered not to prove any illegal "conduct" but to prove the existence of the enterprise which, itself, is "an entity." 18 U.S.C. Sec. 1961 (4). See also Turkette, 452 U.S. at 583 , 101 S.Ct. at 2528 . 34 We believe that any other construction of the RICO statute would confuse the association giving rise to the enterprise with a conspiracy. It is true that where the enterprise is defined as an association for criminal purposes, proof of the enterprise implicitly may prove an unlawful agreement. However, as the Supreme Court's language in Turkette suggests, see supra at 1114 n. 34, a RICO enterprise is not a conspiracy. Thus, while Grady may bar successive RICO prosecutions where the patterns of racketeering activity charged against the defendant substantially overlap, 35 we do not think that our prior decision conflicts with Grady, as the government's proof of the same enterprise was not proof of the same "conduct." 36
81
Moreover, even if we were to interpret Grady as implicitly overruling Ciancaglini, we would have no cause to disturb Ciancaglini's conviction because his double jeopardy challenge falls squarely within the exception recognized in Grady for offenses which had not occurred at the time of the earlier indictment. 110 S.Ct. at 2090 n. 7. 37 In this regard, we reiterate our observation in Ciancaglini that all of the racketeering acts charged against Ciancaglini in this RICO prosecution occurred after the indictment was filed in the Riccobene case, and many occurred after the Riccobene trial began in April of 1982. 858 F.2d at 930 . Ciancaglini has argued that the district court's jury instructions in this case amounted to a "quasi-Pinkerton charge" which encouraged the jury to look beyond the alleged predicate acts and find guilt based on conduct occurring at the time of the earlier indictment. For reasons explained more fully later in this opinion, we reject this contention. See infra at 1147 & n. 91. To us, the fact that completely different patterns of racketeering were proven in the two cases is dispositive of the double jeopardy question raised here. Thus, we reject Ciancaglini's claim.
C. SENTENCING ISSUES 38
82
1. Consecutive Sentences for RICO Conspiracy and Substantive Offenses
83
Scarfo, Salvatore Wayne Grande, Frank Narducci, Jr. and Phillip Narducci argue that the double jeopardy clause prohibits consecutive sentencing for RICO conspiracy and substantive offenses, under 18 U.S.C. Secs. 1962 (c)-(d). They point out that the same evidence was used to convict them of both RICO offenses and that Count 2 of the indictment, which charged the section 1962(c) offense, incorporated by reference all of the predicate acts charged in Count 1, the section 1962(d) conspiracy offense. Accordingly, they maintain that the consecutive sentences result in multiple punishments for the same offense, in violation of the double jeopardy clause.
84
The permissibility of consecutive sentencing for RICO conspiracy and substantive offenses is controlled by United States v. Marrone, 746 F.2d 957 (3d Cir.1984), which held that a RICO conspiracy does not merge with the substantive offense for purposes of sentencing. We reasoned there that sections 1962(c) and (d) define distinct offenses under the test of Blockburger v. United States, 284 U.S. at 304 , 52 S.Ct. at 182 , as each requires proof of a fact which the other does not. Given that the offenses are distinct and no legislative intent against consecutive sentencing is discernible from RICO's text or legislative history, we inferred that Congress intended to authorize consecutive sentencing. Marrone, 746 F.2d at 959 . Significantly, Marrone expressly rejected a double jeopardy analysis which examined whether the same evidence was used to prove the two offenses. Id. at 959 . Under Marrone, the focus of a double jeopardy analysis of cumulative sentencing is on the legislative intent. Therefore, the fact that in this case, both RICO offenses were predicated upon the same pattern of racketeering is irrelevant.
85
Appellants urge us to reconsider Marrone, as, in their view, it is inconsistent with Jeffers v. United States, 432 U.S. 137, 156-57 , 97 S.Ct. 2207, 2219-20 , 53 L.Ed.2d 168 (1977), and subsequent Supreme Court decisions. Absent in banc review, we are constrained by Marrone, as that case squarely decided that sections 1962(c) and (d) define separate offenses for sentencing purposes. However, even if we could relax our rules, we would adhere to Marrone as we believe it was correctly decided.
86
Jeffers held that principles of double jeopardy bar cumulative punishment for engaging in a continuous criminal enterprise in violation of 21 U.S.C. Sec. 848 and for a conspiracy under 21 U.S.C. Sec. 846 predicated upon the same facts. In examining the double jeopardy implications of cumulative fines imposed upon the defendant, the Supreme Court drew largely upon its prior determination that a conspiracy within section 846 is a lesser included offense of a section 848 offense. Id. at 149-50, 97 S.Ct. at 2215-16. In view of that finding, the Court found it necessary to scrutinize closely the legislative intent to ascertain whether Congress nevertheless intended cumulative punishment under the two statutes. Id. at 155, 97 S.Ct. at 2218. As Congress did not specifically authorize cumulative punishment, the Court held that it was impermissible. Id. at 156-57, 97 S.Ct. at 2219.
87
The result in Jeffers differed from our decision in Marrone because the Supreme Court in construing a different statute, discerned a different legislative intent. Jeffers does not support appellants' contention that the constitutionality of consecutive sentences depends upon the proof adduced at trial. In subsequent cases, the Court has not suggested otherwise. Instead, it has emphasized that the permissibility of cumulative punishment is a question of legislative intent, which may differ depending on whether the two statutes proscribe the same offense. Thus, in Whalen v. United States, 445 U.S. 684, 693 , 100 S.Ct. 1432, 1438 , 63 L.Ed.2d 715 (1980), the Court stressed that "where the offenses are the same ... cumulative sentences are not permitted, unless elsewhere specially authorized by Congress." Accord Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673, 679 , 74 L.Ed.2d 535 (1983) (the Double Jeopardy Clause does not preclude the imposition of consecutive sentences under two statutes proscribing the same offense in cases where the legislative intent to permit such sentencing is "crystal clear.") In contrast, cumulative punishment is presumptively valid if the statutes define distinct offenses. Garrett v. United States, 471 U.S. at 793 , 105 S.Ct. at 2419 . As stated in Garrett, "[t]he presumption when Congress creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific issue does not establish an ambiguity or rebut this presumption." Id.
88
As recognized in Marrone, sections 1962(c) and (d) of the RICO statute define separate offenses under the Blockburger test. Unlike the CCE statute examined in Jeffers, section 1962(c) does not expressly require concerted activity and therefore a conspiratorial agreement is not an essential element of the offense. Section 1962(c) provides that:
89
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly in the conduct of such enterprise's affairs through a pattern of racketeering activity or the collection of unlawful debt.
90
18 U.S.C. Sec. 1962 (c).
91
In civil cases involving section 1962(c), we have held that the enterprise and perpetrator of a substantive RICO offense may not be the same "person," because the legislative intent to "prevent the takeover of legitimate businesses by criminals and corrupt organizations" would not be served if innocent corporations were punished along with the "infiltrating criminals." B.F. Hirsch v. Enright Refining Co., Inc. 751 F.2d 628, 633-34 (3d Cir.1984). See also Rose v. Bartle, 871 F.2d 331, 358-59 (3d Cir.1989). 39 However, nothing in the statute or our prior decisions suggests that a single individual "employed by or associated with an enterprise" could not commit a substantive RICO offense by conducting the enterprise's affairs through a "pattern of racketeering." To the contrary, we have no difficulty perceiving how a single person with the ability to marshall an enterprise's resources to further corrupt endeavors might run afoul of section 1962(c). Therefore, we remain convinced that a substantive RICO offense, unlike a RICO conspiracy, does not require proof of an unlawful agreement. Section 1962(c) obviously requires proof of facts which section 1962(d) does not, as to prove a substantive RICO offense, the government must show that the underlying predicate acts were committed.
92
We realize that a technical comparison of the statutory elements of the offenses under the Blockburger test is not necessarily dispositive of whether cumulative punishment will violate the double jeopardy clause, as the Blockburger test is only a rule of statutory construction which has proven to be a useful guide in discerning the legislative intent. Albernaz v. United States, 450 U.S. 333, 340 , 101 S.Ct. 1137, 1143 , 67 L.Ed.2d 275 (1981). In other words, a determination under the Blockburger test that cumulative punishment is permissible cannot override a clear expression of contrary legislative intent. Id. However, where, as here, the statutory provisions define separate offenses, under Garrett, we must presume that Congress intended cumulative punishments for them unless it expressly has indicated a contrary intent. 40 Congress has not done so. Accordingly, in keeping with virtually every other court of appeals which has considered this issue, 41 we adhere to our position in Marrone that consecutive sentences for RICO substantive and conspiracy offenses are permissible under the Double Jeopardy Clause because they are statutorily authorized. 42
93
2. Consecutive Sentencing of the Narduccis following state life sentences for the D'Alfonso murder
94
The Narduccis maintain that the district court erred in making their federal sentences on the RICO charges run consecutively to sentences of life imprisonment imposed on them by the Court of Common Pleas for Philadelphia County following their convictions for the murder of Frank "Flowers" D'Alfonso. Brief for Narduccis at 36-42. The state indictment for the D'Alfonso murder apparently was returned before the indictment in this case. Jt.App. at 820, 823. The state murder trial was scheduled to begin in June, 1988, but, for reasons not apparent from the record, was repeatedly continued. Pursuant to an agreement between the federal and state prosecutors, the federal case proceeded to trial first.
95
On September 8, 1988, before the trial commenced, the government orally moved to have the D'Alfonso murder stricken from the indictment so that the state prosecution could proceed at the conclusion of the federal case. 43 Jt.App. at 823. The motion was granted and the D'Alfonso murder was withdrawn as a predicate act. 44 After the jury's verdict in this case but before sentencing, the appellants were found guilty of first degree murder in the state prosecution and were given life sentences. Consequently, at the sentencing conference in this case, the district court granted the government's motion to amend its presentence report to reflect the state convictions and sentences. As mentioned above, the appellants' federal sentences run consecutively to their life sentences for the D'Alfonso murder.
96
Appellants' primary contention is that the district court erred in imposing consecutive sentences because the state sentences were not "final" at the time of the federal sentencing inasmuch as the time for filing their post-sentence motions had not yet expired. They also suggest that the district court had no authority to order consecutive sentences. Finally, they assert that the imposition of a consecutive federal sentence following a state conviction for a withdrawn predicate act in a RICO prosecution is inconsistent with the Justice Department's Petite policy regarding duplicitous federal-state prosecutions. 45 We reject each of these contentions.
97
There is no question that the district court had the discretion to order the federal sentences to run consecutively to the unexpired state sentences. Appellants, relying on United States v. Terrovona, 785 F.2d 767, 770 (9th Cir.), cert. denied, 476 U.S. 1186 , 106 S.Ct. 2926 , 91 L.Ed.2d 553 (1986), suggest that under 18 U.S.C. Sec. 4082 (a), a district court has no authority to designate whether a federal sentence will run concurrently or consecutively to an existing state sentence but can only make a recommendation to the Bureau of Prisons. Although Terrovona did so hold for an offense committed prior to November 1, 1987, 46 insofar as it related to consecutive sentencing, it was contrary to the position taken by a majority of federal appellate courts.
98
Section 4082(a) provides with respect to offenses committed prior to November 1, 1987, that:
99
A person convicted of an offense against the United States shall be committed, for such term of imprisonment as the court may direct, to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.
100
This provision has been construed to mean that the Attorney General has sole authority to designate the place of confinement in cases where the federal and state sentences are to run concurrently. Salley v. United States, 786 F.2d 546, 548 (2d Cir.1986); United States v. Thornton, 710 F.2d 513, 515-16 (9th Cir.1983); United States v. Janiec, 505 F.2d 983, 987 (3d Cir.1974), cert. denied, 420 U.S. 948 , 95 S.Ct. 1332 , 43 L.Ed.2d 427 (1975). However, it is well settled that a federal court has the power to direct that a federal sentence will run consecutively to an unexpired state sentence. Salley, 786 F.2d at 547 ; United States v. Campisi, 622 F.2d 697, 699 (3d Cir.1980); United States v. Lee, 500 F.2d 586 (8th Cir.), cert. denied, 419 U.S. 1003 , 95 S.Ct. 322 , 42 L.Ed.2d 279 (1974); Anderson v. United States, 405 F.2d 492 (10th Cir.), cert. denied, 394 U.S. 965 , 89 S.Ct. 1318 , 22 L.Ed.2d 567 (1969). As under 18 U.S.C. Sec. 3568 , for offenses committed prior to November 1, 1987, a federal sentence does not begin to run until the defendant is delivered to the place where the sentence is to be served, 47 a district court's imposition of a consecutive federal sentence in no way encroaches upon the authority of the Attorney General under section 4082(a) to "designate the place of confinement." He simply will not be called upon to do so until the state sentence is completed and the defendant is delivered to federal custody.
101
Appellants nevertheless argue that consecutive federal sentences are precluded where the state sentences are not final at the time of the federal sentencing. They point to Rule 359 of the Pennsylvania Rules of Criminal Procedure, which provides that in cases where the death penalty or a mandatory sentence is authorized by law, the court may immediately impose the sentence but that the sentence becomes final for purposes of appeal only after all post-sentence motions are decided. 48 They assert that because they filed post-sentence motions which at the time of the federal sentencing had not yet been resolved by the state trial court, under Rule 359, the state sentences were not yet final. 49 Brief for Narduccis at 39.
102
Although we recognize that the imposition of consecutive federal sentences may raise problems when the state sentences have not yet been imposed, United States v. Eastman, 758 F.2d 1315 (9th Cir.1985), we do not believe that the existence of pending post-sentence motions in state court means that the state sentences are not final for purposes of federal sentencing. Subdivision (F) of Rule 359 states that the sentence becomes final "for the purpose of appeal" after the resolution of post-sentence motions. It seems obvious that subdivision (F) was meant to prevent appeals within the state system during the pendency of such motions because their resolution could have a substantive impact on the appeal. As the imposition of a consecutive federal sentence in no way affects the state appellate process, we cannot see why Rule 359 should preclude consecutive federal sentencing. We are not persuaded by appellants' argument to the contrary. 50
103
Appellants' remaining contention requires little discussion. They argue that the consecutive sentencing was inconsistent with the Justice Department's Petite policy against duplicitous federal-state prosecutions. 51 The Petite policy is an internal rule promulgated by the Justice Department that requires federal prosecutors considering a potentially duplicitous prosecution to obtain prior authorization from a Justice official, who decides whether there are "compelling reasons" for pursuing the matter. Rinaldi v. United States, 434 U.S. 22, 28-29 , 98 S.Ct. 81, 85 , 54 L.Ed.2d 207 (1977); United States v. Manbeck, 744 F.2d 360 , 371 n. 7 (4th Cir.1984), cert. denied, 469 U.S. 1217 , 105 S.Ct. 1197 , 84 L.Ed.2d 342 (1985). According to appellants, the Petite policy reflects the Justice Department's strong disapproval of successive federal-state prosecutions for the same offense and is broad enough to bar consecutive sentences in cases where the government has withdrawn a predicate act in a RICO prosecution for the sole purpose of cumulating punishments against the accused.
104
We disagree. First, in view of the substantial state interest in prosecuting appellants for D'Alfonso's murder, and in the absence of any showing by appellants of the prosecutorial motive alleged, we are not persuaded that the prosecutors sought dismissal of the murder as a predicate act solely to cumulate punishments. Second, we have doubts that the Petite policy is even implicated in this case, as the federal prosecution preceded the state prosecution and it is not clear that the policy has any bearing on sentencing issues. Finally, even if the Petite policy applies, it does not confer any substantive rights on appellants. Manbeck, 744 F.2d at 372 n. 11; United States v. Hadley, 671 F.2d 1112, 1116 (8th Cir.1982); United States v. Chavez, 566 F.2d 81 (9th Cir.1977). Thus, it affords no basis for a reduction of appellants' sentences.
D. PROSECUTORIAL MISCONDUCT
105
Appellants contend that the prosecutors in their rebuttal summation and during the course of the trial, engaged in various types of misconduct warranting a new trial. Specifically, they maintain that the prosecutors vouched for the credibility of their witnesses, attested to their own integrity, made inflammatory references to the appellants, commented on government witnesses' fears that the appellants would retaliate against them for testifying, and mischaracterized the government's burden of proof. While there is no doubt that some of the prosecutors' remarks were very strong, none could qualify as misconduct, and therefore none could justify the granting of a new trial.
1. Improper Prosecutorial Vouching
106
Based on our review of the trial transcript, it is clear that the success of the government's case hinged on whether the jury believed the testimony of Thomas DelGiorno and Nicholas Caramandi. The thrust of the defense was to attack DelGiorno's and Caramandi's credibility by drawing attention to their extensive criminal histories, to favorable terms of their plea agreements with federal and state authorities, and to prior inconsistent statements they had made at previous trials. All of these were routine impeachment tactics for dealing with turned witnesses. However, defense counsel went further and suggested that federal and state law enforcement officers had fabricated DelGiorno's and Caramandi's testimony.
107
Apart from accusatory remarks in certain opening statements, 52 throughout most of the trial the defense attorneys' allegations of government misconduct were confined to questions posed during the course of rigorous cross-examination of DelGiorno and Caramandi. 53 However, after the government rested, the appellants called DelGiorno's son, Thomas DelGiorno, Jr., who expressly stated that FBI agents and state law enforcement officers had suggested answers to his father while debriefing him:
108
Q: During the period of time you were with your father when he was taken for briefing sessions or to be interviewed by the FBI and/or the State Police, what, if anything, did he say about the manner in which they interviewed him? And let me be specific about that. What did he say occurred when they asked him to recount or to tell them what they knew about a certain incident? What did he say they'd do?
109
A: He told me they would ask him of a certain incident and my father would tell them about the certain incident and the, for instance, they would come back at him and ask him, well, could it have happened this way and my father would say, yeah, it could have happened that way and then by the time they're done of could it happen this way or could it happen that way, my father was actually telling the story that they wanted him to tell.
110
Q: Did he tell you this himself?
111
A: Yes, he did several times.
112
Q: And did he make a comment about that, how that interested him or words of that effect?
113
A: Yeah, he was very interested in the beginning because he really felt that, he couldn't believe that they would do something like this cause, you know, they're federal government or they're Jersey Police or they're government, couldn't believe they actually do something like this. But once he did it several times, I guess he got used to it and he just went on from there.
114
Tr. 11/9/88 at 73-74 (emphasis supplied).
115
In response to this testimony, the government, as part of its rebuttal case, called several law enforcement officers who had been present during DelGiorno's questioning. The officers refuted Thomas DelGiorno, Jr.'s allegations:
116
Q: Were you present when the FBI agents interviewed Thomas DelGiorno?
117
A: Yes, sir, I was.
118
Q: Did you ever hear any of those FBI agents suggest to DelGiorno that he change the answers that he was giving?
119
A: No, sir, I did not.
120
Q: Did you ever hear any of those agents suggest to him that they didn't like his version of the facts and suggested an alternate version of the facts which he could have got, which came from them, the agents, as opposed to from his mouth?
121
A: No, sir, I did not.
122
Q: Ever hear anybody suggest to DelGiorno that he add more defendant [sic] into a particular crime?
123
A: At no time did I ever hear that, no sir.
124
Q: Or say that the defendant who hadn't committed a crime should commit, should be testified to by DelGiorno or said to have committed a crime by DelGiorno?
125
A: No, sir, I did not.
126
Tr. 11/9/88 at 164.
127
In view of these excerpts, it is apparent that at the close of the evidence, the amount of weight the jury would assign to Thomas DelGiorno, Sr.'s testimony depended to a large extent on who the jury found more credible, Thomas DelGiorno, Jr., or the assorted law enforcement officers who flatly denied his allegations of misconduct.
128
Predictably, the integrity of the government in maintaining this prosecution became a central theme in the appellants' closing arguments. We need not recount all of the instances where defense counsel attacked the integrity of the government but will limit our discussion to a few of the more extreme examples cited by the government. Joseph Grande's attorney claimed that DelGiorno's and other witnesses' testimony was completely fabricated by the government: "[Y]ou know that [DelGiorno and Caramandi] they're liars, killers, thieves, burglars, flim-flam artists, cheaters, crooks, perjurers.... [T]heir testimony has been colored, it's been nursed, rehearsed, practiced, planned, engineered if you will so that when they testify that they'll appear believable." Tr. 11/15/88 at 26. Philip Leonetti's attorney predicted that DelGiorno and Caramandi would receive lenient sentences because sentencing "is to be at the whim and caprice of the prosecutors, who are going to make representations to the sentencing judge." Tr. 11/12/88 at 117. And finally, Scarfo's attorney opined that the prosecutors did not seriously believe that the appellants would be convicted of all charges, 54 and repeatedly suggested that the government had a vendetta against the Mafia which led it to seek the appellants' convictions at any cost. Tr. 11/16/88 at 142-44. In this regard, he analogized the prosecution of the Scarfo family to the government's attempt to bury unions in the 1930's, the internment of the Japanese during World War II, the blacklisting of communists during the McCarthy era, the circumstances leading to the Kent State riots, the persecution of Vietnam protestors, and ultimately, in his piece de resistance, to the Spanish Inquisition. Id. 55
129
Bearing in mind the trial context in which it was made, we turn now to appellants' assault on the prosecutor's rebuttal argument. According to appellants, the prosecutor's vouching took the following forms: 1) references to the "moral integrity" of law enforcement officers and prosecutors working on the case, together with assertions that because the testifying law enforcement personnel had sworn oaths of office, they would be jeopardizing their careers if, as some defense attorneys claimed, they had scripted Caramandi's and DelGiorno's testimony; 2) suggestions that the prosecutors possessed some means of assessing the truthfulness of Caramandi's and DelGiorno's testimony, independent of the evidence presented at trial; and 3) the prosecutors' personal assurances that the witnesses were telling the truth. Brief for J. Pungitore at 13-14.
130
Appellants point to the following examples of the prosecutor's allegedly improper remarks. In response to defense counsels' claims that FBI agents had scripted DelGiorno's testimony, the prosecutor, in his rebuttal argument, stated:
131
Why bring all those FBI agents and state troopers? I'll tell you why. Because the FBI agents and state troopers in this case are not criminals. There's no evidence to indicate that they're the criminals. There's no evidence that those good men suborned perjury or made up anything and that's why the Government brought them in[,] so that you could judge their credibility from the witness stand.
132
Tr. 11/16/88 at 175-76 (emphasis supplied).
133
The prosecutor also urged the jury to consider that the testifying law enforcement personnel had taken oaths of office when assessing the credibility of Thomas DelGiorno, Jr.'s testimony. 56
134
Finally, appellants rely on the following passage in support of their claim that the prosecutor attested to the integrity of the prosecutorial team and personally vouched for the credibility of DelGiorno and Caramandi:
135
Well, those prosecutors that [defense counsel] was referring to include for the most part us, me, Joe Peters, L[ou]is Pichini, Albert Wicks and Dave Fritchey, who you saw for most of the trial. We're the prosecutors. It's not somebody off in Washington. It's not somebody some place else that you'll never see. We're the ones and make no mistake about it. What he's telling you, what a lot of these defense attorneys are telling you is that we fed this information to those Defendants, and you know what? You've heard us throughout the course of this trial. I'm not a genius but I'm not that dumb that I casually mentioned things to them without knowing exactly what I'm doing. I'm not that stupid. I didn't casually allow Caramandi to know what DelGiorno was saying and allow DelGiorno to know what Caramandi was saying and neither did any of these other prosecutors[,] because they're all at least as smart if not smarter than I am, and you know what? Those FBI agents, those state troopers, those policemen, they're not real stupid either.
136
The only way that Caramandi and DelGiorno's testimony could be consistent in this case is one of two ways. They're either telling the truth or all the prosecutors and law enforcement people or a large percentage of them got together and said to Caramandi, listen, here's what Thomas DelGiorno was telling, the story, here's how he says it and we want you to say it the same way[,] and then we went to DelGiorno and said here's how Caramandi is telling the story. We want you to say it the same way. Now there's been no evidence whatsoever that anything like that happened in this case. In fact, all those law enforcement people who paraded up on the stand in response to some testimony that was inaccurate by the defense that just wasn't so, all those people said it never ever happened and you've got to ask yourselves if all those law enforcement people and we as prosecutors violated our oaths, jeopardized our jobs, our careers, our right to practice law, they're [sic] right to continue as FBI agents, or there's another alternative. The stories of Caramandi and DelGiorno coincide because they are telling the truth, because the evidence indicates ... it.... [T]he only way that they got their stories together is if law enforcement told them each what to say[,] and there is nothing to indicate that that happened, and it didn't happen.
137
Tr. 11/16/88 at 241-43 (emphasis supplied).
138
The district court in its opinion on appellants' post-trial motions decided that "to the extent that the prosecution bolstered the credibility of its witnesses, it did so as an appropriate response to defense attacks on the integrity of the prosecution." 711 F.Supp. at 1327 . Although appellants concede the government's prerogative to respond to attacks on the credibility of its witnesses, Brief for J. Pungitore at 9, they maintain that the rebuttal argument went beyond the permissible boundaries of "fair reply" and that the prosecutor engaged in impermissible vouching for the credibility of its witnesses based on evidence outside the record. Thus, they argue, under United States v. DiLoreto, 888 F.2d 996 (3d Cir.1989), decided after the district court released its opinion, the remarks gave rise to per se reversible error.
139
In DiLoreto, various defense counsel argued in closing that key government witnesses were not credible because they were testifying pursuant to favorable plea agreements. 888 F.2d at 998 . In response to these contentions, the prosecutor in his rebuttal summation attempted to rehabilitate the witnesses by stating in reference to the plea agreements, "If they lie, the bargain is off. That's it, no bargain. We don't take liars. We don't put liars on the stand. We don't do that." Id. at 999 . The defendants promptly moved for a mistrial which was denied by the district court. Id. at 998 .
140
This court interpreted the prosecutor's comments as an assertion "that the government as a matter of policy in the prosecution of its cases, does not use liars as witnesses." Id. at 999 . As there was no evidence in the record to support the existence of any such policy, the court concluded that the government had improperly vouched for the credibility of its witnesses based on evidence outside the record. The court held that in such circumstances, improper prosecutorial comments give rise to per se reversible error. Id. at 999 .
141
In certain respects, this case is factually distinguishable from DiLoreto, since here, not all of the prosecutorial comments bearing on credibility were lacking in evidentiary support. For example, we do not consider the following statement of the prosecutor to be "extra-record" vouching within DiLoreto: "the only way [DelGiorno and Caramandi] got their stories together is if law enforcement told them each what to say[,] and there is nothing to indicate that that happened, and it didn't happen." In contrast to DiLoreto, this statement does not suggest that the prosecutor had access to undisclosed facts which would support a favorable credibility determination with respect to government witnesses. Rather, the prosecutor merely asked the jury to consider that there were only two logical explanations for consistencies between DelGiorno's and Caramandi's testimony: either law enforcement officials had fabricated their responses or the witnesses were telling the truth. Given that numerous law enforcement officials vehemently denied Thomas DelGiorno Jr.'s account of the debriefing process, we cannot fairly say that the prosecutor reached beyond the record in arguing that the scenario urged by defense counsel in their closing arguments "didn't happen." Instead, faced with contradictory testimony regarding the preparation of its witnesses, the prosecutor urged the jury to accept the testimony most favorable to the government. This, in itself, was proper argument. 57
142
However, we do agree with appellants that in other portions of the rebuttal summation, the prosecutor attempted to bolster the credibility of testifying law enforcement personnel and the prosecutorial team by invoking facts which had no foundation in the record. In particular, we observe that there was no evidence backing the prosecutor's comments that the U.S. Attorneys and law enforcement officers could not have behaved as unscrupulously as defense counsel alleged they did without violating their oaths of office and jeopardizing their careers. Even setting aside DiLoreto's strong condemnation of extra-record vouching, we would disapprove of these portions of the prosecutorial argument, as it is inappropriate for a prosecutor to invoke his or her oath of office as a means of defending the credibility of government witnesses. United States v. Torres, 809 F.2d 429, 445, 446 (7th Cir.1987) (Flaum, J., concurring) (prosecutor's claim that his oath of office prevented him from offering perjured testimony "placed him in the inappropriate role of a witness"); United States v. Saenz, 747 F.2d 930, 942 (5th Cir.1984), cert. denied, 473 U.S. 906 , 105 S.Ct. 3531 , 87 L.Ed.2d 655 (1985) (prosecutor's insinuation that he only prosecuted the guilty was improper, albeit fair reply to defense attacks on the prosecutor's integrity in maintaining prosecution). See also United States v. Oxman, 740 F.2d 1298, 1303 (3d Cir.1984), vacated and remanded on other grounds sub. nom. United States v. Pflaumer, 473 U.S. 922 , 105 S.Ct. 3550 , 87 L.Ed.2d 673 (1985) (disapproving of a prosecutor's suggestion that he might be "personally disadvantaged" if it were determined that a government witness had disregarded the truthful testimony proviso of his plea agreement). While it is unprofessional for any attorney to use his oath of office as a means of enhancing a witness's credibility, it is especially unbefitting for a prosecutor to do so because, as recognized in United States v. Young, "the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government rather than its own view of the evidence." 470 U.S. 1, 18-19 , 105 S.Ct. 1038, 1048 , 84 L.Ed.2d 1 (1985). See also Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935) (a prosecutor "may strike hard blows but he is not at liberty to strike foul ones.").
143
If, as appellants allege, DiLoreto controls, then we would have to reverse their convictions without examining whether the prosecutor's comments caused them any unfair prejudice. However, despite the factual similarities noted above, we do not view DiLoreto as controlling because in this case, unlike in DiLoreto, we may review only for plain error, as appellants failed to preserve their objections to the prosecutor's rebuttal summation. 58 To apply the per se rule established in DiLoreto in the absence of a contemporaneous objection would be completely inconsistent with Young, wherein the Supreme Court opined that a court may never apply a per se reversal rule to a trial defect subject to a plain error standard of review. 470 U.S. at 16 n. 14, 105 S.Ct. at 1047 n. 14 ("A per se approach to plain error review is flawed").
144
Thus, we may reverse only if we find an error in the prosecutor's comments so serious as to "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." In this regard, we are mindful of the Supreme Court's admonishment that
145
a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by doing so can it be determined whether the prosecutor's conduct affected the fairness of the trial.
146
Young, 470 U.S. at 11 , 105 S.Ct. at 1044 .
147
Thus, our objective is not to penalize the prosecutor for an inopportune remark, but to ensure that the appellants received a fair trial.
148
Reviewing the record as a whole, we conclude that a reversal is not warranted because the prosecutor's invocation of the oaths of office taken by the government officials involved in this case fell squarely within the invited response doctrine. United States v. Robinson, 485 U.S. 25 , 33 & n. 5, 108 S.Ct. 864 , 869 & n. 5, 99 L.Ed.2d 23 (1988); Darden v. Wainwright, 477 U.S. 168, 182 , 106 S.Ct. 2464, 2472 , 91 L.Ed.2d 144 (1986); Young, 470 U.S. at 12-13 , 105 S.Ct. at 1045 ; Lawn v. United States, 355 U.S. 339 , 359 n. 15, 78 S.Ct. 311 , 323 n. 15, 2 L.Ed.2d 321 (1958); United States v. DiPasquale, 740 F.2d 1282, 1296 (3d Cir.1984), cert. denied, 469 U.S. 1228 , 105 S.Ct. 1226 , 84 L.Ed.2d 364 (1985). The doctrine teaches that where a prosecutorial argument has been made in reasonable response to improper attacks by defense counsel, the unfair prejudice flowing from the two arguments may balance each other out, thus obviating the need for a new trial. Young, 470 U.S. at 12-13 , 105 S.Ct. at 1045 . We have interpreted the doctrine to mean that a prosecutor may neutralize improper defense arguments but may not rely on them as a "springboard" for the launching of affirmative attacks upon the defendants. DiPasquale, 740 F.2d at 1296 (explaining United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832 , 95 S.Ct. 56 , 42 L.Ed.2d 58 (1974)). In other words, the doctrine's reach is limited to defensive, as opposed to offensive, conduct of the prosecutor. 59
149
We acknowledge that in this case, Thomas DelGiorno Jr.'s testimony provided some evidentiary support for the appellants' challenges to the government's integrity in maintaining this prosecution. However, in analogizing the prosecution to historical persecutions, such as union busting in the 1930's, the internment of the Japanese during World War II, the blacklisting of communists, the harassment of political protestors, and the Spanish Inquisition, the appellants themselves exceeded the boundaries of proper advocacy. 60
150
Furthermore, even if such comments could be excused as rhetorical flourishes, they, along with other assertions made by the appellants, amounted to a personal attack on virtually every government official involved in this case, including members of the prosecutorial team. The rebuttal summation did no more than refute what was an obvious inference from the appellants' closing arguments, namely that the prosecutors and law enforcement officers had engaged in fabrications and misconduct so extreme as to place their careers in jeopardy. In these circumstances, the prosecutor's invocation of the oaths of office cannot be considered anything other than a defensive response to the extremely serious allegations of misconduct made by the appellants.
151
We do not mean to suggest that defendants may not attempt to impugn a witness's credibility through evidence that his testimony was fabricated by unscrupulous government officials. However, when defendants choose to do so, they must confine their arguments to the scope of the evidence they have presented. Thomas DelGiorno Jr.'s testimony in no way justified the vicious assault on the government's integrity made in this case. Of course, closer supervision by the district court or a timely objection by the government might have eliminated the need for the prosecutorial response. Young, 470 U.S. at 13-14 , 105 S.Ct. at 1045 . However, given that the appellants themselves invited the comments challenged on appeal, we find no plain error requiring reversal of their convictions.
2. Other Prosecutorial Misconduct
152
Appellants' remaining allegations of prosecutorial misconduct require less discussion. In closing argument, the prosecutor referred to appellant Iannarella as a "cold-blooded murderer," tr. 11/11/88 at 115, and to various other appellants as "mob killers." Tr. 11/16/88 at 272. He also stated that appellants Joseph and Anthony Pungitore, Salvatore and Joseph Grande, and Phillip and Frank Narducci had "followed in their fathers' footsteps" in joining "the mob." Tr. 11/11/88 at 79. We find no prosecutorial misconduct in these comments, as we agree with the district court that they were fair comment on the evidence adduced at trial. 711 F.Supp. at 1327-28 . 61
153
Likewise, we find no substance to Scafidi's complaint that the prosecutor improperly commented upon witnesses' fears of retaliation from the appellants. The first such comment was made in response to certain remarks made by Virgilio's attorney concerning Kathleen Residence, Virgilio's former girlfriend, whose testimony implicated Virgilio in Judge Helfant's murder. The attorney argued, in part, that Residence was not a credible witness because she had testified in disguise. Tr. 11/16/88 at 75. In his rebuttal summation, the prosecutor asked the jury to consider that Residence had appeared in disguise because she "was scared to death." Id. at 182. The second was made in response to Scarfo's attorney's assertion that there were no eyewitnesses to any of the murders except for Joseph Salerno, Jr. Id. at 126. The prosecutor countered that several eyewitnesses testified but that, in some cases, they did not positively identify the perpetrators because they were "too scared." Id. at 274-75.
154
Inasmuch as no objection was made to the above comments, they are reviewable only for plain error. We find no error with respect to the comments concerning Residence's disguise, as her fear of the appellants could be readily inferred from her attire at trial. The prosecutor may have said more than was necessary to answer defense counsel's claim that there were no eyewitnesses to the murders. However, in view of evidence that appellants attempted to murder Joseph Salerno, Sr. because his son had testified against Scarfo in a previous proceeding, it cannot be said that the prosecutor introduced the idea to the jury that some witnesses might fear retaliation from the defendants. Thus, the comment, if error, was harmless.
155
Finally, several appellants claim reversible error stemming from the prosecutor's alleged attempt to quantify reasonable doubt. During his opening statement, the prosecutor analogized the unfolding of the evidence to a jigsaw puzzle. Tr. 9/28/88 at 46-48. In closing summation, Salvatore Merlino's attorney adopted the prosecutor's jigsaw puzzle analogy, arguing that many of the pieces were missing and that other pieces were not genuine. Tr. 11/14/88 at 10. In rebuttal, the prosecutor conceded that some "pieces" were missing but argued that the "puzzle" as a whole was sufficiently completed to preclude any reasonable doubt as to the subject matter of the picture. Tr. 11/16/88 at 305-06. The prosecutor added that the government's case was analogous to a 500 piece jigsaw puzzle with 8 pieces missing. Id.
156
Although we agree that the prosecutor's argument improperly suggested a quantitative measure of reasonable doubt, we do not find that the appellants were thereby prejudiced, as the argument was fair reply to defense counsel's own revival of the jigsaw puzzle analogy. Moreover, the district court promptly gave a curative instruction as requested by defense counsel. Id. at 308-09. Inasmuch as appellants did not object to the curative instruction or request additional instructions, they apparently were satisfied with the district court's response and cannot now complain that comments gave rise to reversible error.
157
In sum, appellants have pointed to no instances of prosecutorial misconduct which would justify our granting them a new trial.
E. SUFFICIENCY OF THE EVIDENCE
158
Appellants Nicholas Virgilio and Joseph Ciancaglini maintain that there was insufficient evidence to support their convictions under various counts. 62 We find that there was substantial evidence with respect to each charge challenged by appellants and will affirm.
159
The standard governing our review of these claims is firmly established. Our inquiry is whether, viewing the evidence in a light most favorable to the government, there was substantial evidence upon which a reasonable jury could have based its verdict. Burks v. United States, 437 U.S. 1, 16 , 98 S.Ct. 2141, 2150 , 57 L.Ed.2d 1 (1978); United States v. Leon, 739 F.2d 885, 890 (3d Cir.1984). The evidence need not unequivocally point to the defendant's guilt as long as it permits the jury to find the defendant guilty beyond a reasonable doubt. United States v. Sandini, 888 F.2d 300, 311 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1831 , 108 L.Ed.2d 959 (1990). We will consider the appellants' contentions in turn.
1. Virgilio
160
The indictment charged Nicholas Virgilio, a/k/a/ "Nick the Blade," in both RICO counts, the substantive RICO offense under 18 U.S.C. Sec. 1962 (c), Count 2, and the RICO conspiracy under 18 U.S.C. Sec. 1962 (d), Count 1. The jury's answers to special interrogatories indicated that it had based its verdict of guilt as to both RICO counts on Virgilio's participation in the murder of Judge Helfant, racketeering act 1, and on the extortions of John Hartung, racketeering act 24, and Jerome Slobotkin, racketeering act 25. Virgilio does not deny that there was sufficient evidence to prove his involvement in Helfant's murder. 63 Brief for Virgilio at 7. Nor does he contest that the two extortions were committed by members of the enterprise. However, he asserts that there was no evidence linking him to the extortions and, as a RICO pattern of racketeering must consist of at least two related predicates, he urges us to reverse his RICO convictions under both counts. 64
161
Virgilio's defense is not one calculated to elicit much sympathy, as it amounts to an assertion that he may be a murderer but is not an extortionist. But the real infirmity of his argument is that it relies exclusively on the absence of direct evidence linking him to the particular shakedowns of Hartung and Slobotkin and completely discounts the significance of circumstantial evidence which would support a reasonable inference of guilt. The testimony of several witnesses unequivocally demonstrated that the extortions of John Hartung and Jerome Slobotkin occurred over prolonged periods of time as part of the LCN's massive shakedown operation of minor criminals unconnected to the enterprise. Tr. 10/28/89 at 26, 45-46; 11/4/88 at 161-64, 207-10.
162
The primary evidence connecting Virgilio to the shakedowns was DelGiorno's testimony that Virgilio received a share of the shakedown proceeds:
163
Q: After Salvatore Merlino and Larry Merlino were taken down in early 1986, did the division of the shake or elbow change?
A: Yes
164
Q: How did it change?A: It was split between Scarfo, Leonetti, Faffy, me, Ciancaglini still got his end. He gave Joe Grande 400 a month. He gave the blade [Virgilio] 200 a month, gave Nicky Whip 200 a month, and he gave Salvatore Scafidi 200 a month.
165
Q: When you say "He," who are you talking about giving those people that money per month?
166
A: Scarfo.
167
Q: What part of the shake money did that division that you just talked about come out of?
168
A: That came out of the stuff that they got every week.
169
Q: And what about the people who were still doing the shakedowns, what percentage of the money did they get?
170
A: Half.
171
Q: Do you know the what was the reason that the people who you mentioned, Nicholas Virgilio, Salvatore Scafidi, Joe Grande, got the money from the shakes per month?
172
A: Well, they were in Philip's regime and they did things for Scarfo, errands, I guess, or jobs, whatever you want to call them.
173
Tr. 10/12/88 at 67-68 (emphasis supplied).
174
From this, the jury reasonably could infer that Virgilio regularly accepted a portion of the shakedown money, including that extorted from Hartung and Slobotkin, in return for various services rendered for Scarfo. Virgilio argues, however, that it would be speculative to infer that he had knowledge of the source of his income or that the "jobs" or "errands" mentioned by DelGiorno related to the shakedowns. We disagree.
175
Under these circumstances, Virgilio's receipt of the shakedown proceeds was sufficient to establish his agreement to the shakedown operation, and we will affirm his RICO conspiracy conviction on that basis. This court repeatedly has held that 18 U.S.C. Sec. 1962 (d) does not require the defendant's agreement to commit personally two acts of racketeering. United States v. Traitz, 871 F.2d 368, 395-96 (3d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 78 , 107 L.Ed.2d 44 (1989); United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S. 971 , 106 S.Ct. 336 , 88 L.Ed.2d 321 (1985). The government need only prove that the defendant agreed to conduct the affairs of the enterprise through a pattern of racketeering activity to be accomplished through the acts of co-conspirators. Adams, 759 F.2d at 1116 .
176
As the district court observed, in view of the immense scale of the shakedown operation, the scheme could not have escaped Virgilio's notice. 711 F.Supp. at 1337 . Virgilio protests that there was no direct evidence that he knew of the shakedowns, much less the particular shakedowns of John Hartung and Jerome Slobotkin. 65 He urges us to analogize this case to United States v. Kragness, 830 F.2d 842, 860 (8th Cir.1987), where the Court of Appeals for the Eighth Circuit, which follows the Adams rule, reversed a RICO conspiracy conviction because the defendant, although guilty of one predicate offense, had no knowledge of the other two offenses with which he was charged. However, the circumstances of Kragness were quite different than those here. The Kragness defendant was the Houston distributor of cocaine and quaaludes imported by a widescale drug enterprise with operations spanning several states. Id. at 851 . Given the nature of the enterprise, the defendant's claim that he had no knowledge of two marijuana import schemes was credible.
177
In this case, the shakedowns were committed in the Philadelphia area by co-conspirators with whom Virgilio was closely associated and Virgilio directly profited from them. These facts provide strong circumstantial evidence that Virgilio agreed to the shakedown operation. The possibility that Virgilio may not have known of the particular extortions of Hartung and Slobotkin does not require a reversal of his conviction, as that could easily be attributed to the fact that hundreds of individuals paid street taxes to the enterprise over a period of years. 711 F.Supp. at 1337 . It would be curious indeed if Virgilio's apparent indifference as to the identities of the enterprise's extortion victims required a reversal of his RICO conspiracy conviction.
178
The validity of Virgilio's substantive RICO conviction requires more discussion. The district court acknowledged that DelGiorno's testimony may not have been sufficient to prove Virgilio's personal participation in the shakedowns, but considered that under a Pennsylvania statute consolidating theft offenses, 18 Pa.Cons.Stat.Ann. Sec. 3902 (Purdon 1983), Virgilio was guilty of receipt of stolen property even if the evidence did not establish extortion. 711 F.Supp. at 1337-38 . Accordingly, the court concluded that, under Pennsylvania law, "Virgilio [was] as guilty of an act involving extortion in receipt of the extorted monies as the individuals who personally committed the extortionate acts." Id. at 1338 .
179
Although we do not accept the district court's reasoning, we reach the same result. We depart from the district court insofar as it held that proof of Virgilio's knowing receipt of the extorted monies was sufficient to establish his personal commission of an act "involving extortion" for purposes of the RICO statute. 66 Section 1961(1) includes within the definition of "racketeering activity" "any act or threat involving ... extortion ... which is chargeable under State law and punishable by imprisonment for more than one year." The government correctly points out that its proof of extortion need not satisfy all of the peculiarities of the state law, as the state offenses enumerated in section 1961(1) are merely definitional. Rose v. Bartle, 871 F.2d at 361-62 ; United States v. Forsythe, 560 F.2d 1127, 1134-35 (3d Cir.1977). But it still must establish extortion, generically defined.
180
The gravamen of an extortion offense under the Pennsylvania statute cited in the indictment is an express or implied threat that some harm will befall the victim should he fail to comply with the extortionist's demands. 67 Commonwealth v. Wojdak, 502 Pa. 359, 370-71 , 466 A.2d 991, 997 (1983). Those elements are lacking in a theft through receipt of stolen property which, under Pennsylvania law, is established through proof that the defendant "intentionally receiv[ed], retain[ed], or dispos[ed] of movable property of another knowing that it has been stolen, or believing that it has probably been stolen...." 18 Pa.Cons.Stat.Ann. Sec. 3925. In view of the different natures of the two offenses, we conclude that the RICO statute does not authorize the substitution of theft through receipt of stolen property for an act "involving extortion."
181
Nevertheless, we find adequate support for the government's theory that Virgilio aided and abetted the shakedown operation and will sustain his conviction under 18 U.S.C. Sec. 1962 (c) on that basis. 68 Brief for the United States at 92. Virgilio argues that his conviction may not be sustained under an aiding and abetting theory because the indictment did not mention that offense. We disagree. Federal courts have long recognized that a defendant indicted as a principal may be convicted upon proof that he aided and abetted the charged offense. Nye & Nissen v. United States, 336 U.S. 613, 618-20 , 69 S.Ct. 766, 769-70 , 93 L.Ed. 919 (1949); United States v. Bryan, 483 F.2d 88, 94-97 (3d Cir.1973) (en banc). Moreover, the district court expressly instructed the jury as to the elements of an aiding and abetting offense. Tr. 11/17/88 at 34-36, 62, 91-92. There is no question that the jury was entitled to consider aiding and abetting as a possible basis of guilt.
182
To prove aiding and abetting, the evidence must show that the defendant "in some way associated himself with the criminal venture as something he wished to bring about and that he sought by his actions to make it succeed." United States v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1103 (3d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 368 , 107 L.Ed.2d 354 (1989). As discussed above, Virgilio directly profited from the shakedown operation with full knowledge of how his income was generated. In the circumstances of this case Virgilio's knowing receipt of the extorted monies is sufficient to show that he "associated himself with the criminal venture as something he wished to bring about."
183
The requisite conduct element is supplied by DelGiorno's testimony that Virgilio was paid for his performance of "errands" for Scarfo as part of Philip Leonetti's crew and by evidence that on September 12, 1985, he attended a meeting with Leonetti, Scarfo, and DelGiorno at which they discussed the implications of the FBI's recent confiscation of shakedown proceeds from Salvatore Scafidi's house. Tr. 10/11/88 at 107, 123. Even if it would be speculative to infer that Virgilio's "errands" for Scarfo required his personal participation in the acts of extortion performed by the shakedown crews, 69 the jury was entitled to infer that the errands related in some fashion to the shakedowns, especially considering his close association with Leonetti, who supervised a shakedown crew. This evidence, considered in tandem with his attendance of a meeting convened to address the threat to the shakedowns posed by the FBI, supplies substantial support for an inference that Virgilio acted in furtherance of the shakedown operation. Cf. United States v. Rastelli, 870 F.2d at 838 (evidence that defendant knowingly received extortion proceeds, coupled with his admission "that if he ever did 'a favor for [the crime family in control of the extortion] [he] would get something' " was sufficient to prove his guilt of an extortion conspiracy).
184
Reading the evidence in a light most favorable to the government, we will sustain Virgilio's convictions under both RICO counts. With respect to the substantive RICO count, we emphasize that our decision does not rest solely upon Virgilio's knowing receipt of the extortion proceeds or upon his close association with the principals in the shakedown extortions. The evidence supports a reasonable inference that Virgilio personally furthered the shakedown operation by performing acts entitling him to remuneration from the shakedown proceeds and by discussing with his co-conspirators the FBI's intrusion into the operation. Accordingly, the jury reasonably found that Virgilio committed the requisite extortionate predicates by aiding and abetting the acts of his co-conspirators.
2. Ciancaglini
185
Joseph Ciancaglini was convicted under 21 U.S.C. Sec. 841 (a)(1) and 18 U.S.C. Sec. 2 of distributing or aiding and abetting the distribution of methamphetamine, a controlled substance. 70 He argues that the evidence was insufficient to prove a completed delivery of methamphetamine or that he aided any such distribution. He also asserts that in reviewing the sufficiency of the evidence, we should not consider DelGiorno's testimony concerning the nature of the substance because it consisted entirely of inadmissible hearsay. Brief for Ciancaglini at 36 . Based on our review of the record, we find no substance to these contentions.
186
Ciancaglini's guilt as to the distribution offense was established through the testimony of Thomas DelGiorno. Tr. 10/12/88 at 29-32. DelGiorno stated that in May of 1983, Ciancaglini, then a captain in the enterprise, authorized him to arrange a methamphetamine deal between two drug dealers, John Santilli and Vinnie Perry. Ciancaglini and DelGiorno, with underboss Salvatore Merlino's approval, agreed that certain members of the enterprise would receive $3000 for every pound of methamphetamine Santilli sold to Perry. Although DelGiorno never actually saw the drugs, 71 he stated that he received $150,000 from a series of transactions involving fifty pounds of methamphetamine. Pursuant to the co-conspirators' agreement, DelGiorno turned half of the profits over to Ciancaglini, who provided Scarfo and Merlino with their shares:
187
Q: What did you actually do with the $150,000?
188
A: I gave him $75,000.
189
Q: Who did you give the $75,000 to?
190
A: Ciancaglini.
191
Q: And what was your understanding of what he was supposed to do with the $75?
192
A: Half of it he had to give to Chuckie [Salvatore Merlino] and Scarfo.
193
Q: Do you know if he did do that?
194
A: Yes.
195
Q: How do you know that?
196
A: He told me and Chuckie told me he got the money.
197
Tr. 10/12/88 at 32-33.
198
Section 841(a)(1) makes it a crime knowingly or intentionally "to manufacture, distribute, or dispense ... a controlled substance." 21 U.S.C. Sec. 841 (a)(1). 72 Courts have broadly construed the term, "distribute," as encompassing any acts "perpetrated in furtherance of a transfer or sale, such as arranging or supervising the delivery, or negotiating for or receiving the purchase price." United States v. Brunty, 701 F.2d 1375, 1381 (11th Cir.), cert. denied, 464 U.S. 848 , 104 S.Ct. 155 , 78 L.Ed.2d 143 (1983). See also United States v. Baresh, 790 F.2d 392, 399 (5th Cir.1986) (aiding and abetting charge under section 841 did not require proof that defendant had actual or constructive possession of marijuana or that he was physically present when the drugs were distributed); United States v. Winston, 687 F.2d 832, 834-35 (6th Cir.1982). Thus, assuming that Santilli and Perry engaged in a methamphetamine deal, DelGiorno's testimony that Ciancaglini authorized him to arrange the deal would be sufficient to prove that he participated in a distribution of that substance.
199
Although DelGiorno had no personal knowledge about what actually transpired between Santilli and Perry, a reasonable jury could infer from DelGiorno's receipt of the $150,000 that the methamphetamine deal was consummated. Furthermore, contrary to Ciancaglini's assertions, the government's proof that the substance sold was methamphetamine did not rest solely on the hearsay declarations of Santilli and Perry, as the manner in which the deal was arranged and the large sums of money involved provide strong circumstantial evidence that the transaction concerned an illicit substance. United States v. Murray, 753 F.2d 612, 615 (7th Cir.1985) ("A high price for the substance purchased and the covert nature of the transaction ... may provide support that the substance was a drug"); United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir.1984), cert. denied, 469 U.S. 1189 , 105 S.Ct. 957 , 83 L.Ed.2d 964 (1985). As the parties contemplated a methamphetamine deal, the jury certainly was justified in concluding that the substance in fact was methamphetamine.
200
In short, we have no difficulty concluding that the evidence was sufficient to support Ciancaglini's convictio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/546225. Public record. Not legal advice.