Petition — Carbone v. United States

~~

Supreme Court, U.S,

FILED

80-900 estar:

No.:__ MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1980

JOHN CARBONE AND JOSEPH CARBONE,

Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD L. SHARGEL

Counsel for Petitioners

1370 Avenue of the Americas

New York, New York 10019

(212) 541-7105

GRAHAM HUGHES

Of Counsel

i

Questions Presented

1. Whether offenses under 18 U.S.C. § 1962(c) and

(d) (RICO) were committed when the theory of the pro-

secution and the charge to the jury characterized the

defendants as persons associated in fact to commit

crimes and failed to require proof of an independent

enterprise with which the defendants were associated?

2. Whether the defendants were denied a fair trial

when the indictment disclosed more than one enterprise

and more than one conspiracy, thus rendering Counts

I and II duplicitous, producing prejudicial variance,

and rendering improper and prejudicial the district

court’s denial of the defendants’ motions for severance

and requested jury instructions?

List of Parties

In addition to the parties named in the caption to

this Petition the following parties were also tried and

convicted in the same proceeding: Ronald Williams,

Frank Mazucca, George Janovich, Richard Caliguri

and Arnold Zemek.

ii

Table of Contents

NE

I

ES SEES

ce cece

Appendix A - Opinion of United States Court

bis ss paccecccccocccccccccce.

Appendix B - Constitutional and Statutory

Provisions Involved in the Case............

——

—"

mOnN nN fF WOW WH WW DPD ue.

_

>

—

pe)

Table of Authorities

Cases:

Ianelli v. United States, 420 U.S. 770 (1975)..... 9

United States v. Aleman, 609 F.2d 298

CP Ee, Be i'n so ee oe AN eons ss 8

United States v. Altese, 542 F.2d 104 (2d Cir.

1976), cert. denied, 429 U.S. 1089 (1977)..... 9

United States v. Anderson, Nos. 79-1809, 79-1827

(ths Cie. Ames 7, LE oie ccs ccnceacdeuces 9

United States v. Elliott, 571 F.2d 880 (5th Cir.),

cert. denied, 439 U.S. 953 (1978) ............ )

United States v. Eubanks, 591 F.2d 513

SS TOs as ice be ec ke rere Keke 12

United States v. Mannino, No. 80-1206

+ oe ee | errr 11

United States v. Rone, 598 F.2d 564

Cs Ce Tai eases Hee 8, 10

United States v. Sutton, 605 F.2d 260 (6th Cir.

1979), petition for rehearing en banc granted,

Caan; TB bs co wka cas eos Cee wiirnas 9,10

United States v. Swiderski, 593 F.2d 1246 (D.C.

Cir. 1978), cert. denied, 99 S.Ct. 2055........ 8

United States v. Turkette, No. 79-1545 (1st Cir.

ee, Ba. We sone s cde becker ae )

Statutes:

OD TEs Bs hit does ocsiseecwercsaseeees 2,9

OF EEE Oe Ds 55005504 sauces )

RE TRIRA.. B Re baci Seics eee kee weae es )

Bee ae ER Oe sb avieck soaked eacistasues i, 2, 8, 9, 10

86 Ti. © Be okies sas ss00okaen ena ceee i

TB TE .. © SIR ood ov hen 0450 ee 2

Other Authorities:

Federal Rules of Criminal Procedure Rule 14 ... 13

IN THE

Supreme Court of the United States

October Term, 1980

JOHN CARBONE AND JOSEPH CARBONE,

Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioners John Carbone and Joseph Carbone

respectfully pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals

for the Ninth Circuit affirming the judgments of con-

viction entered against the petitioners by the United

States District Court for the Western District of Wash-

ington.

2

Opinion Below

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto at pp. 1a-45a. No opinion

was rendered by the District Court for the Western

District of Washington.

Jurisdiction

The date of the judgment of the United States

Court of Appeals for the Ninth Circuit was October 6,

1980, which was also the date of entry. This Court’s

jurisdiction is invoked under Title 28, United States

Code, Section 1254 (1).

‘Statutory Provisions Involved in the Case

These are set forth in the Appendix at p. 46a.

Statement of the Case

The petitioner John Carbone is the father of the

petitioner Joseph (Joe) Carbone. Together with fourteen

other defendants (eight of whom pleaded guilty) they

were charged in a lengthy indictment with offenses

under 18 U.S.C. § 1962 (commonly known as RICO),

and a series of underlying federal and state offenses

having to do with arsons, extortions and assaults

allegedly connected with the operation of taverns in

Pierce County, Washington.

John Carbone

John Carbone was charged in all but two of the

sixteen counts in the indictment. Count I alleged a RICO

conspiracy while Count II charged a RICO substantive

offense under 18 U.S.C. § 1962(c). The remaining

counts specified offenses alleged to be the predicate

RICO crimes. Counts III, IV and V alleged extortion

and violence on one Weinstein said to be committed

because John Carbone suspected Weinstein of having

3

reported him to the I.R.S. Count VI alleged extortion

by threats and violence on the owner of a tavern called

the “Night Moves”; Counts VII and VIII charged ob-

struction of justice through the intimidation of Wein-

stein; Counts IX and X alleged the conduct of illegal

gambling; Count XI charged the obstruction of state

law enforcement through a corrupt arrangement with

a local sheriff while Counts XV, XVI and XVII alleged

mail fraud arising out of insurance claims made with

respect to the arson of a tavern called “The Black

Knight” which John Carbone had purchased for

another son, Richard.

John Carbone was found guilty of all these offenses

and was sentenced to 20 years imprisonment on Count I,

with five years imprisonment to run consecutively

on Count III and concurrent terms of imprisonment

on the other counts.

Joseph Carbone

Joseph, John Carbone’s son, was charged in Count I

with the RICO conspiracy, though he was not named

in the RICO substantive offense under Count II. In

addition he was charged in Count VI with the attempted

extortion of the owner of the “Night Moves” tavern

and in Counts XV, XVI and XVII, the three mail fraud

counts with respect to the arson of the “Black Knight.”

Since the last three counts arose out of a single incident

of arson Joseph Carbone was in fact charged with

respect to only two underlying incidents relating to

the RICO conspiracy.

He was sentenced to 18 years imprisonment on

Count I, 18 years (concurrently) on Count VI and

lesser concurrent terms on the other counts.

4

The Factual Background

The indictment identified the RICO “enterprise” as

“a group of individuals associated in fact, although

not a legal entity, for the purpose of controlling and

attempting to control the tavern business in and around

Pierce County, Washington, by making and retaining

profits via acts and threats involving murder, arson,

bribery, extortion and illegal gambling, mail fraud

and by retaliating with violence against the person

and property of persons who they suspected of pro-

viding information to criminal investigators.”

John Carbone had at one time been active in the

tavern business in Pierce County but by the time of the

period covered by the indictment he had retired from

the scene and transferred most of his interests to a

co-defendant, Ron Williams. The prosecution claimed

that John Carbone retained a real interest in taverns

and that Williams was his covert subordinate. Joseph

Carbone owned and operated at different times two

cocktail lounges or taverns in the area.

The evidence showed that Ron Williams and var-

ious people employed by him were deeply engaged in

a number of arson plots against taverns owned by

competitors, notably against the “Night Moves” owned

by Chase. Chase’s tavern was burned down and his

children were threatened by a co-defendant, Caliguri,

employed at times by Williams. The involvement of

Williams was indisputably evidenced by numerous

recorded conversations he held with undercover federal

agents posing as visiting gangsters in which he made

plain admissions of his participation in a variety of

crimes.

As far as the Carbones were concerned the focus

of the trial was the hotly contested issue of whether

they were in any way connected with Williams in his

tavern-related career of crime. Here a distinction must

be made between the evidence relating to John Carbone

and that relating to Joseph Carbone.

5

The evidence as to John Carbone’s participation

in offenses plainly linked with taverns was slight and

it was argued on the appeal that the evidence was insuf-

ficient as to these offenses. But the evidence relating

to John Carbone’s participation in the offenses of

extortion with respect to Weinstein was certainly

sufficient in law and established that in this venture

he was cooperating with Williams. Since Williams

was plainly guilty of many tavern-related crimes a

prime question on appeal was whether the extortion

offenses relating to Weinstein were properly joined

with the tavern crimes. If the joinder was improper,

the prejudice to John Carbone was clearly profound.

The prejudice flowing from this joinder was even

more apparent as to Joseph Carbone for, with respect

to him, there was absolutely no evidence at all of any

connection with the Weinstein episode and precious

little of any connection with the tavern-related offenses.

In a trial lasting four months in which there were some

12,000 pages of testimony and many thousands of pages

of transcripts of recorded conversations, testimony

relating to Joseph Carbone appeared very infrequently.

For one passage of the trial covering a whole month

his name never featured in the evidence.

The three mail-fraud counts on which he was con-

victed were connected with the arson of the “Black

Knight” tavern and in this matter the only evidence

presented against Joseph was an ambiguous remark

he made to Caliguri, then working in a restaurant owned

by Joseph, that business at the “Black Knight” was

bad and that Caliguri should take care of it. This was

overheard in fragments by a dancer at the club who

could not be sure that the “take care of it” part of the

conversation related to the “Black Knight.” As to the

attempted extortion of Chase in connection with his

ownership of the “Night Moves” tavern the only evidence

against Joseph Carbone was his listening to two minutes

at the end of a cryptic and ambiguous telephone conver-

sation where Williams was making final arrangements

6

with a federal undercover agent (whom he assumed

to be a criminal) for the bombing of the “Night Moves.”

Thus the evidence of any criminal participation

by Joseph Carbone was very slight and an argument

of insufficiency was advanced to the Court of Appeals.

By contrast, there was considerable testimony

that Joseph Carbone ran his businesses legitimately

(did not permit illegal gambling or prostitution and

had only minor liquor law violations), and that he

sold taverns to legitimate buyers in a perfectly lawful

fashion. There was no evidence of his involvement

with corrupt protection from the sheriff's office and

there was not one single word of tape recording of any

conversations by him. The few specks of evidence

relating to Joseph scattered across the face of the moun-

tainous record were unlikely to have led to his conviction

absent the massive prejudice that flowed from /his

association or blood relationship with defendants

against whom there was considerable evidence of some

form of wrongdoing or another.

Chief in this regard was the Weinstein episode.

Weinstein was an old man who had been subjected to

persecution for years culminating in a vicious beating

that left him with permanent disabilities. A consider-

able portion of the trial was devoted to the playing of

tapes and the offering of testimony that recounted

the part played by Williams and John Carbone in this

series of crimes against Weinstein. Yet the government

never offered any specific evidence of any link between

the Weinstein offenses and the tavern-related crimes

other than that the Weinstein attacks were motivated

by a belief on the part of John Carbone that Weinstein

had reported him to the tax authorities.

The trial court and the Court of Appeals concluded

that such a showing was sufficient both to make the

joinder of the Weinstein counts proper and also to

characterize the Weinstein counts as a part of the

activities of the RICO enterprise in question. But the

7

result of this joinder and the consequent form of the

trial was devastating both for John Carbone and for

Joseph Carbone. As for John the weak evidence of his

participation in tavern crimes was given credence and

plausibility by the evidence of his participation in

the Weinstein offenses. As for Joseph the virtual absence

of evidence of his connection with any specific offenses

was tarred over by the web of his connections and

associations (all innocuous in themselves) with others

who had committed serious crimes.

Williams did bad things in relation to taverns;

Joseph’s father John used to be active in the tavern

business; Williams did bad things to Weinstein and

there was evidence that Joseph’s father was connected

with those offenses. Joe, being in the tavern business,

knew Williams and for a time had employed Williams’s

principal thug, Caliguri. This was the grid of asso-

ciations that had a devastating potential to lead to

the jury’s guilty verdicts. Joseph Carbone’s greatest

misfortune was to be a co-defendant with people like

Williams and Caliguri and to be carried along in the

torrent of evidence as to their misdeeds, though none

of it clearly implicated him.

The band that the prosecution used to tie together

all the defendants and all the offenses, both tavern-

related and those having to do with Weinstein was of

course the concept of the RICO enterprise, which thus

became the foundation stone of the trial and of the

guilty verdicts against John and Joseph Carbone.

Reasons for Granting the Writ

The RICO Issue

The indictment, the theory of the prosecution,

the trial judge’s charge to the jury and the opinion of

the Court of Appeals all rest on a construction of the

RICO statute which has led to a split among the cir-

cuits and which, it is submitted, calls for the granting

8

of the writ not only to resolve that growing controversy

but to correct the improper ruling in the present case.

The indictment characterized the enterprise under

18 U.S.C. § 1962(c) as “a group of individuals associated

in fact” in order to control taverns through committing

a series of criminal offenses. Thus the enterprise was

not defined as a business activity consisting of the

operation of a particular tavern or a number of desig-

nated taverns but rather as a group of persons having

criminal purposes. If there should be any doubt that

this is the proper reading of the indictment it is dis-

sipated by the charge to the jury where the trial court

said:

Count I sets forth a description of the alleged

group of co-conspirators termed “the enterprise”

..which basically means a group of persons

who form an association by virtue of their con-

certed criminal activities rather than a legal

entity.

And in another portion of the charge the court

defined the enterprise as persons “associating by virtue

of their concerted criminal activities.”

Thus the theory on which the case was tried and

sent to the jury represented a construction of the statute

that finds no need to identify any enterprise other

than that consisting of an association for the purpose

of committing two predicate felonies and that has a

tendency to affect interstate commerce. Under this

theory when such an association succeeds in the com-

mission of two such offenses both a RICO conspiracy

and a RICO substantive offense have been committed.

This theory has been embraced by several circuits,

though often with divided panels. See United States v.

Aleman, 609 F.2d 298 (7th Cir. 1979); United States v.

Rone, 598 F.2d 564 (9th Cir. 1979); United States v.

Swiderski, 593 F.2d 1246 (D.C. Cir. 1978), cert. denied,

99 S.Ct. 2055; United States v. Elliott, 571 F.2d 880

9

(5th Cir.), cert. denied, 439 U.S. 953 (1978); United States

v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied,

429 U.S. 1039 (1977).*

The opposite view (that the enterprise must have

some preexisting quality of independent legitimacy

on to which the racketeering pattern engrafts itself

parasitically), has been espoused by three courts. See

United States v. Turkette, No. 79-1545 (1st Cir. Sept. 23,

1980); United States v. Anderson, Nos. ‘'3-1809, 79-1827

(8th Cir. Aug. 7, 1980); United States v. Sutton, 605

F.2d 260 (6th Cir. 1979), petition for rehearing en banc

granted, (Nov. 7, 1979).

The only characterization of the RICO statute by

this Court states that it “seeks to prevent the infiltration

of legitimate business operations affecting interstate

commerce by individuals who have obtained investment

capital from a pattern of racketeering activity.” Janelli

v. United States, 420 U.S. 770, 787 n. 19 (1975). This

view certainly seems consonant with the theme that

runs strongly through the first two subsections of

Section 1962. Subsection (a) is plainly drafted with a

design to criminalize the investment of racketeering

profits in existing enterprises. Similarly subsection

(b) is aimed at acquiring an interest in an existing

enterprise through a pattern of racketeering activity

or the collection of unlawful debts. Thus the first two

subsections contemplate that an enterprise pre-exists,

independent of an ' apart from the racketeering activity,

and thus would seem to be aimed exclusively at the

infiltration of legitimate business. Otherwise a gang

of criminals who put their loot into a hole in the ground

might be committing a RICO offense under § 1962(a)

or (b) and nobody has yet suggested so extraordinary a

holding.

It is only in § 1962(c) that it is even logica!ly possible

to contemplate that the purposive racketeering activity

is itself the enterprise, but under the principles of

*In Altese, Aleman and Rone dissenting opinions were delivered.

10

noscitur a sociis and in pari materia it seems clear

that there is at the least a reasonable argument that

this subsection should be read in the spirit of the first

two. If this is not conclusive it certainly creates an

ambiguity that should lead one into the legislative

history where not one word of support can be found

for the broad view. A review and summary are to be

found in Sutton supra where the court concluded that

the construction limiting § 1962(c) to participation

in the affairs of a legitimate enterprise was “unmis-

takably endorsed by the legislative history.” 650 F.2d

at 267.

The contrary position leads, as pointed out in

Sutton, to analytically bizarre and socially undesirable

results. It has the effect of reading “the ‘enterprise’

element out of the statute,” id. at 265, and making the

racketeering itself constitute the enterprise, thus elim-

inating the statutory requirement that the defendant

participate in the enterprise through a pattern of

racketeering activity. This statutory separation of the

elements of enterprise and racketeering, charted by

the vital word “through,” is ignored by a construction

which, devoid of linguistic, legislative or policy-oriented

justifications, converts a mass of run-of-the-mill crimes

and conspiracies into RICO offenses. It is a construction

which debases and vulgarizes the statute by converting

it into a simple offense of committing two racketeering

crimes and ignoring the complexities inherent in the

concept of a certain nexus with an enterprise. This

overly ambitious and yet overly simplistic theory

further achieves, without any legislative warrant, the

metamorphosis of large areas of state criminal law into

federal offenses. As the court said in Suttor, “common

sense ... leads us to reject [this] reading.” Id. at 266.

In the present case the Court of Appeals relied

on its earlier holding in Rone supra but went on to

observe that, even if the broader definition of enterprise

were improper, the charged enterprise in the present

case satisfied the narrower concept as set forth in

Sutton. (App. 1la-12a) In so holding the Court of Appeals

11

ignored the charge to the jury quoted supra which

went on to instruct them that they might convict simply

by finding “two or more specified acts of racketeering

in furtherance of the aims of the enterprise.” In these

passages the trial court in charging on the vital issue

of the nature of the enterprise did not restrict it to

tavern-related crimes but invited the jury to convict

on the basis of a finding that the defendants committed

any two of the charged predicate crimes. But these

offenses included ones relating to the intimidation

of Weinstein where no satisfactory link had been

established by the evidence of any tavern-related

activity. This laxity made it possible for the jury to

convict the defendants on the basis of finding an

enterprise of general criminality that may have encom-

passed the Weinstein incidents, irrelevant as they were

to any tavern-related schemes.

At the close of the government’s case the defendants

in moving for judgments of acquittal argued that the

evidence had not disclosed an enterprise in the proper

understanding of that term. But the trial court denied

the motion. Leiter, counsel for John Carbone requested

a charge that the acts of racketeering must be joined

by acommon plan but the trial court denied the request.

Thus the jury was in effect relieved of the obligation

to find every element required by the statute. Instead

of being charged that they must first find an enterprise

and then look for the defendants’ association with

it and participation in its affairs through a pattern

of racketeering, the jury was permitted to collapse

the one element into the other and simply look for an

agreement to commit denominated offenses. This made

it easy for the jury to confuse the Weinstein matter

with tavern-related offenses.

This case constitutes one more addition to the

growing heap of controversial RICO decisions. As the

Court of Appeals for the Second Circuit recently observed

in United States v. Mannino, No. 80-1206 (2d Cir. Nov. 18,

1980) “the issue will ultimately have to be decided by

the Supreme Court.” This case presents that invitation

in a particularly pressing manner.

12

Multiple Conspiracies and Severance

On appeal the petitioners contended that under

any standard of unity (whether that of one conspiracy

or one RICO enterprise) the record did not demonstrate

any significant connection between tavern-related

crimes and offenses committed against Weinstein.

At the very leasi, the petitioners argued, the question

whether the conspiracies (if any) were one or multiple

was sufficiently raised by the evidence and the motions

so that the court should have given appropriate instruc-

tions to the jury to consider the matter. United States

v. Eubanks, 591 F.2d "13 (9th Cir. 1979).

As to John Carbone there was evidence sufficient

in law to sustain a conviction on the counts relating

to Weinstein. But to make it appropriate to join these

counts with the others in the indictment it would be

necessary to show, (a) that there was a tavern-related

conspiracy, (b) that John Carbone was a member of

it, and (c) that his membership of the tavern-related

conspiracy shared some common purpose with or

somehow constituted the same enterprise as was

manifested in the offenses against Weinstein. The

petitioners did not question the first of these three

propositions but took issue with the other two.

The evidence tended to show that John Carbone

may have had a grudge against Weinstein because he

thought he had given some information about him

to the income-tax authorities. The Court of Appeals

apparently reasoned (App. 13a-16a) that this, together

with evidence that a conspiracy to commit tavern

crimes existed, was in itself sufficient to link the two

beyond even the possibility of a contrary finding by

the jury, so that the trial court’s refusal to give a jury

instruction on the multiple conspiracy issue was not

prejudicial error. (App. 15a) But this reasoning is

defective.

It was impermissible to view the Weinstein offenses

and the tavern offenses as related without a showing

13

from independent evidence that John Carbone was

himself involved in tavern crimes and then a further

showing of a link between the two sets of offenses.

But the trial court’s refusal of the requested instruction

(and the Court of Appeals’ sanctioning of this pro-

cedure) allowed the jury to suppose that evidence in

the one area could shore up evidence in the other area.

In this way one set of evidence that was sufficient

to establish X and another set of evidence that fell

short of Y may, when lumped together, have been found

sufficient to reach XY - a creature which has no right

to be acknowledged until X and Y have been distinctly

established and connected.

If John Carbone was prejudiced in this way, the

prejudice to Joseph Carbone is even more apparent

for there was no evidence whatsoever connecting him

with the Weinstein offenses. The devastating attach-

ment of this satellite Weinstein trial to the distinct

trial on the tavern matters is the most likely explanation

for the verdicts of guilty returned as to Joseph Carbone.

The errors implicit in this intermingling of two

unconnected matters were brought to the attention

of the trial court and the Court of Appeals under two

theories. First, as indicated supra defendants argued

that the evidence revealed multiple conspiracies. This

was raised by a pre-trial motion, was raised again in

arguments on motions for judgments of acquittal at

the end of the government’s case and was finally pre-

sented once more in a request to the trial court for a

charge to the jury on the issue which the court denied.

Second, the same issue in essence was raised by

requests for severance under Federal Rules of Criminal

Procedure 14. John Carbone made such a motion for

severance pre-trial. Joseph Carbone’s trial counsel

was retained late, in substitution for other counsel,

but did file a motion joining in all motions made on

behalf of John Carbone. Counsel for Joseph Carbone

again moved for severance at the start of the evidence

14

relating to Weinstein and renewed this motion again

at the close of the government’s case. There was an

understanding throughout the trial that motions made

on behalf of any defendant would apply to all insofar

as they were pertinent.

Through the denial of severance and the treating

of multiple conspiracies as one, the RICO counts

(Counts I and II) were rendered duplicitous and infected

with the vices of duplicity that offend the concept of a

fair trial and due process law. The spill-over of prejudice

from the improper joinder renders it unsafe to allow

the conviction on any count to stand.

Conclusion

FOR THESE REASONS A WRIT OF CERTIORARI

SHOULD ISSUE TO REVIEW THE JUDGMENT OF

THE COURT OF APPEALS FOR THE NINTH

CIRCUIT.

Respectfully submitted,

GERALD L. SHARGEL

Counsel for Petitioners

1370 Avenue of the Americas

New York, New York 10019

(212) 541-7105

GRAHAM HUGHES

Of Counsel

APPENDICES

la

Appendix A

Opinion of United States Court of Appeals

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-1549

No. 79-1567

No. 79-1550

No. 79-1551

No. 79-1552

No. 79-1537

No. 79-1536

DC# CR-78-97T (Seattle)

DC# CR-79-68M (S. F.)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHN JOSEPH CARBONE, RONALD JOHN

WILLIAMS, FRANK JULIUS MAZZUCA, GEORGE V.

JANOVICH, JOSEPH M. CARBONE, RICHARD

FRANCIS CALIGURI and LAMONT ARNOLD

ZEMEK,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Washington

Morell E. Sharp, District Judge, Presiding

[Argued and Submitted August 11, 1980]

Before: WRIGHT and SNEED, Circuit Judges,

and ENRIGHT, District Judge.*

WRIGHT, Circuit Judge.

*Of the District of Southern California

2a

Appendix A

Opinion of United States Court of Appeals

Appellants attack the sufficiency of the evidence

to support their convictions for a racketeering conspiracy

and numerous substantive offenses connected therewith.

They also assign error to designated instructions and

evidentiary rulings. We affirm.

Count 1 of the seventeen count indictment charged

fifteen confederates with conspiring over a seven-year

period (1971 to 1978) to conduct the affairs of an “enter-

prise,” the tavern business of Pierce County, Wash-

ington, through a pattern of racketeering. 18 U.S.C.

§ 1962(d).

The alleged racketeering activities included acts

and threats of murder, arson and bribery (in violation

of state law) and gambling, mail fraud, extortion and

obstructing communication to criminal investigators

(in violation of federal law). The remaining counts

charged several defendants with these substantive

federal crimes.

The seven appellants include the owners and

operators of several taverns in Pierce County (John

Carbone and his son, Joseph; Williams; and Mazzuca);

an alleged “strong-arm” (Caliguri); a “middleman”

(Zemek); and the “protector” (former Pierce County

Sheriff Janovich). The indictment characterized John

Carbone as the “leader” of the organization with Ron

Williams as his “chief lieutenant.”

Because appellants challenge the sufficiency of

the evidence as to several counts, the evidence adduced

at trial as to each count will be discussed separately.

We view the evidence, as we must, in the light most

favorable to the government. Glasser v. United States,

315 U.S. 60, 80 (1942); United States v. Basey, 613 F.2d

198, 201 (9th Cir. 1979), cert. denied, 100 S.Ct. 1854

(1980).

3a

Appendix A

Opinion of United States Court of Appeals

FACTS

The mass arrests of defendants in November 1978

marked the culmination of a federal undercover oper-

ation begun in the fall of 1977. The investigation was

prompted by a rash of arsons at Pierce County taverns

and topless dancing establishments. Between 1972

and 1977 three taverns in which Williams, Mazucca,

John Carbone, and Joe Carbone had ownership or

management interests were destroyed by fire.’ All were

insured. There was evidence that, prior to the fires,

the establishments had been experiencing poor busi-

ness. Thereafter, mortgages and debts were paid, the

premises were remodele’ or new establishments were

opened nearby.

Between 1976 and 1978 seven suspected arsons

also occurred at the establishments of competitors

in the tavern, disco ord topless dancing business.?

Because local law enforcement officers were unsuc-

cessful in apprehending the prepetrators, the federal

Bureau of Alcohol, Tobacco, and Firearms (ATF) began

a joint investigation of the tavern fires with the sher-

iff’s office in the fall of 1977.

By April 1978, evidence indicated Sheriff Janovich

was providing information to a principal target

(Williams). The ATF feigned abandonment of the

investigation and dissolved the “partnership.” There-

after, the FBI and ATF conducted an undercover

operation.

After his arrest in April 1978, defendant Michael

Valentine agreed to cooperate with the ATF. There-

after, the government recorded conversations between

'The Players (1972); The Exit (1976); Black Knight (1977).

2The Family Amusement Center was damaged by fire in March

1977. The Top of the Ocean disco and restaurant was destroyed by fire

in April 1977. The Black Forty tavern suffered three arsons in 1977.

The Night Moves tavern was firebombed in November 1977 and

destroyed by fire in February 1978.

4a

Appendix A

Opinion of United States Court of Appeals

Williams and Valentine in which Williams admitted

responsibility for arranging the attempted assassin-

ation of a state liquor control board supervisor respon-

sible for policing Pierce County taverns for alcohol

and topless dancing violations. In November 1977,

the supervisor had been shot four times and seriously

wounded.

At trial Valentine testified that he hired defendants

Bentley and Johnson to execute the murder contract

solicited by Williams. The government introduced

evidence for the motive. Three taverns in which Williams

and the Carbones had management or ownership

interests received notices of topless dancing violations,

entailing temporary closures in the months preceding

the murder attempt. Williams, John Carbone, and

Joe Carbone frequently expressed vitriolic dissatis-

faction with the inspector’s stringent enforcement

activities.

Valentine was also instrumental in introducing

undercover agents as Chicago “mobsters” whereby

they were able to penetrate gambling activities at

Mr. Lucky’s and Stan & Ollies, taverns and cardrooms

owned and managed by Williams and Mazzuca. Gamb-

ling included blackjack and pot limit poker games

illegal under state law."

Posing as a potential buyer of Mr. Lucky’s tavern

and the related gambling activities, an agent was

informed that a price could be negotiated to include

the law enforcement protection arrangement with the

‘Under Washington law wagers are restricted to a $5.00 maxi-

mum. Wash. Rev. Code § 9.46.020(20)(f); Wash. Admin. Code 230-40-

120. Pot limit poker games run for the profit of the house are felonious

under state law. Wash. Rev. Code §§ 9.46.220(20)(c)-(d);

-.020(17).

Under Washington law blackjack games are illegal unless played

in connection with charitable events and with a special license.

Wash. Rev. Code § 9.46.030(7).

5a

Appendix A

Opinion of United States Court of Appeals

sheriff's office. Mazucca and Williams participated

actively in these negotiations. Williams arranged an

initial meeting between the “buyer” and Sheriff

Janovich.

In 1976 the Internal Revenue Service (IRS) had

initiated a criminal investigation of John Carbone

and his activities. Carbone accused Jerome Weinstein,

a former business associate, of informing to the IRS.

Shortly thereafter, Weinstein’s home suffered a series

of firebombings and arsons. He was assaulted and

seriously injured.

Concurrent with this undercover operation, agents

consensually recorded conversations in an attempted

extortion scheme involving John Carbone and Williams. ~

John Carbone met with Weinstein soliciting $10,000

to be paid to Williams for protection against harassment.

Weinstein agreed to cooperate with the FBI and record

conversations with Carbone.

In the fall of 1978 the FBI was also able to infil-

trate a nascent plot to bomb a competitor’s tavern.

In the process of concluding the “sale” of Mr. Lucky’s

tavern to an undercover agent, Williams sought the

“buyer’s” help in locating a bomber to blow up the

Night Moves tavern, a topless dancing establishment

owned by Ron Chase.

The government introduced evidence that Night

Moves provided the primary competition for Joseph

Carbone’s Flitter In. Night Moves had previously

been the object of two arsons. In addition, in August

1978 Chase’s home had been entered by an armed

man subsequently identified as Caliguri who threatened

the occupants with bodily injury unless Chase ceased

operations.

The FBI arranged for an undercover agent to pose

as the bomber. Williams set up the initial telephone

6a

Appendix A

Opinion of United States Court of Appeals

contact, giving the number for Vista Auto Sales. John

Carbone, Joe Carbone and Williams were observed

listening for varying periods to this phone conver-

sation. Caliguri met several times with the bomber

to discuss details.

On November 28, 1978, at the time the final tele-

phone contact was expected at Vista Autos, agents

arrested John and Joe Carbone and Williams on the

premises. The remaining defendants were appre-

hended the same day.

‘Six of the fifteen defendants pleaded guilty and

testified at trial. Taped conversations between and

among Valentine, Weinstein and undercover agents,

on the one hand, and John Carbone, Williams, Mazzuca,

Zemek, Caliguri and Janovich, on the other, formed an

important part of the government’s case.‘

‘The district court expressly found the tapes and transcripts

to be accurate and authentic and this finding is not challenged on

appeal, See United States v. King, 587 F.2d 956, 961 (9th Cir. 1978),

Janovich does assert that tapes of conversations between an

undercover agent, and himself and Williams, should be excluded

as obtained contrary to state law. Wash. Rev. Code, Ch. 9.73.030

(prohibiting recordings absent consent of all parties or court order).

The conversations were recorded pursuant to 18 U.S.C. § 2F11(c)

which permits recording if one party gives prior consent or acts

under “color of law.”

To be admissible, the recordings need only satisfy federal law

and constitutional requirements. United States v. Keen, 508 F.2d

986 (9th Cir. 1974), cert. denied, 421 U.S. 929 (1975). If one party

consents, there is no federal constitutional violation. Jd. Thus, even

though state statutes may require the consent of both parties, admis-

sibility in federal court is determined by federal law. United States

v. Testa, 548 F.2d 847, 855 (9th Cir. 1977).

Janovich’s attempt to distinguish his case from Keen is not

persuasive. He argues state law applies because he was “charged”

with “underlying state crimes.” Although state offenses are incorpo-

rated into federal racketeering and gambling statutes, violation of

state law is not the sole element of the charged federal offenses.

(footnote continued on following page)

7a

Appendix A

Opinion of United States Court of Appeals

After a three month trial,® the jury acquitted de-

fendant Levage of all charges and returned guilty

verdicts against the seven remaining defendants as

to all counts in which they were named. The trial court

imposed generally concurrent sentences and cumulative

fines.®

The statutes serve independent federal purposes and are not merely

an attempt to enforce state law. See United States v. Forsythe,

560 F.2d 1127, 1135 (8d Cir. 1977); In re Bianchi, 542 F.2d 98, 101

(1st Cir. 1976); United States v. Sacco, 491 F.2d 995, 1003 (9th Cir.

1974) (en banc).

The indictment charged Janovich with federal offenses. The

recordings satisfied the requirements of the constitutional and

federal law.

‘The indictment was returned on December 8, 1978 in the Western

District of Washington. On January 26, 1979, and February 9, 1979,

the trial court granted motions for change of venue and the case

was ultimately transferred to the Northern District of California,

the Honorable Morell E. Sharp of the Western District of Washington,

sitting by designation. Trial by jury began on March 19, 1979, and

concluded with verdicts on June 19, 1979.

‘John Carbone and Williaris received multiple concurrent sen-

tences and cumulative fines for all counts. Carbone was charged

and convicted on 14 counts. Williams was charged and convicted on

13 counts. Both were sentenced to two 22-year terms for counts 1 and 2

(alleging violations of 18 U.S.C. § 1962(c) and (d)) to be served con-

currently. Both were sentenced to five years on each of the remaining

counts to be served concurrently with each other but consecutively

to the count 1 sentence. Thus, both effectively received 25 year sen-

tences. The total amount of the fines imposed against John Carbone

was $163,000; the total for Williams was $172,000.

Mazzuca received a 15-year sentence for count 1. He was charged

and convicted on three other counts for which he received three

five-year sentences to be served concurrently with each other and

count 1. The court imposed fines totalling $25,000.

Joseph Carbone was sentenced to 18 years on count 1. The sen-

tences on the four remaining counts for which he was convicted are

to be served concurrently with count 1. The aggregate fine for all

counts was $38,000.

(footnote continued on following page)

*%

8a

Appendix A

Opinion of United States Court of Appeals

RACKETEERING CONSPIRACY: COUNT I

Title IX of the Organized Crime Control Act of

1970 added Chapter 96 entitled, “Racketeer Influenced

and Corrupt Organizations” (RICO) to Title 18 of the

United States Code. RICO prohibits investment in,

control, or operation of an “enterprise” through a

pattern of racketeering activity. See 18 U.S.C. §§ 1961-

1968. RICO defines “enterprise” somewhat ambiguously

to include “any individual, partnership, corporation,

association, or other legal entity, and any union or

group of individuals associated in fact although not

a legal entity.” 18 U.S.C. § 1961(4). The definition

of “racketeering activity” incorporates eight state

crimes and twenty-four specified federal crimes. 18

U.S.C. § 1961(1).’

The court imposed no fines against Janovich, Caliguri or Zemek

and ordered their sentences be served concurrently. Thus, Janovich

and Zemek were sentenced to effective terms of 12 years; Caliguri

received a maximum 18-year sentence for the five counts for which

he was convicted.

18 U.S.C. § 1961(1) provides:

“Racketeering activity” means (A) any act or threat involving

murder, kidnaping, gambling, arson, robbery, bribery, ex-

tortion, or dealing in narcotic or other dangerous drugs,

which is chargeable under State law and punishable by

imprisonment for more than one year, (B) any act which is

indictable under any of the following provisions of title 18,

United States Code: Section 201 (relating to bribery), section

224 (relating to sports bribery), sections 471, 472 and 473

(relating to counterfeiting), section 659 (relating to theft from

interstate shipment) if the act indictable under section 659

is felonious, section 664 (relating to embezzlement from pen-

sion and welfare funds), sections 891-894 (relating to extortion-

ate credit transactions), section 1084 (relating to the trans-

mission of gambling information), section 1341 (relating to

mail fraud), section 1343 (relating to wire fraud), section 1503

(relating to obstruction of justice), section 1510 (relating to

obstruction of criminal investigations), section 1511 (relating

to the obstruction of State or local law enforcement), section

1951 (relating to interference with commerce, robbery, or

(footnote continued on following page)

er ee te

9a

Appendix A

Opinion of United States Court of Appeals

Finally, RICO requires a “pattern” of racket-

eering activity: at least two acts of racketeering com-

mitted within a period of ten years. % U.S.C. § 1961(5).

The alleged pattern herein consisted of 29 predicate

offenses involving, inter alia, multiple acts of arson,

extortion and gambling.

Section 1962, the substantive portion of RICO,

employs the foregoing definitions to create three

offenses. See 18 U.S.C. § 1962(a)-(c). Pertinent to this

appeal is subsection 1962(c) which prohibits any

person employed by or associated with an enterprise

from conducting its affairs through racketeering

activity. Count I charged each appellant with a con-

spiracy to violate this subsection under 18 U.S.C.

§ 1962(d). The indictment alleged 107 overt acts in

furtherance of this conspiracy.

extortion), section 1952 (relating to racketeering), section

1953 (relating to interstate transportation of wagering para-

phernalia), section 1954 (relating to unlawful welfare

fund payments), section 1955 (relating to the prohibition of

illegal gambling businesses), sections 2314 and 2315 (relating

to interstate transportation of stolen property), sections 2341-

2346 (relating to trafficking in contraband cigarettes), sections

2421-24 (relating to white slave traffic), (C) any act which is

indictable under title 29, United States Code, section 186

(dealing with restrictions on payments and loans to labor

organizations) or section 50l(c) (relating to embezzlement

from union funds), or (D) any offense involving fraud connected

with a case under title 11, fraud in the sale of securities or

the felonious manufacture, importation, receiving, con-

cealment, buying, selling, or otherwise dealing in narcotic

or other dangerous drugs, punishable under any law of the

United States;

818 U.S.C. § 1962(c) provides:

(c) 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 collection

of unlawful debt.

10a

Appendix A

Opinion of United States Court of Appeals

Appellants raise three objections related to count

one: (1) permitting application of RICO to defendants’

activities; (2) failing to charge multiple conspiracies;

and (3) insufficiency of the evidence.

1. RICO ENTERPRISE

Appellants assert that their activities did not

fall within the scope of the term “enterprise,” a statutory

element of the RICO offense. They argue that their

alleged operations were wholly illegitimate, and there-

fore outside the purview of RICO which evinces Con-

gressional concern with criminal infiltration of legiti-

mate businesses.

This argument is unavailing in light of Ninth

Circuit precedent to the contrary. Furthermore, ample

evidence exists to negate appellants’ premise that

the enterprise in question was wholly illegitimate.

This circuit has rejected the argument that wholly

illegitimate enterprises are outside the scope of RICO

and has held that an association formed for illicit

purposes will satisfy the enterprise requirement. United

States v. Rone, 598 F.2d 564, 568 (9th Cir. 1979), cert.

denied, 100 S.Ct. 1345 (1980). Although criticized,®

"See, e.g., United States v. Aleman, 609 F.2d 298, 311 (7th Cir.

1979), cert. denied, 100 S.Ct. 1345 (1980) (Swygert, J., dissenting);

United States v. Rone, 598 F.2d 564, 573-74 (9th Cir. 1979), cert.

denied, 100 S.Ct. 1345 (1980) (Ely, J., dissenting); United States

v. Grzywacz, 603 F.2d 682, 690-91 (7th Cir. 1979), cert. denied, 100

S.Ct. 2152 (1980) (Swygert, J., dissenting); United States v. Altese,

542 F.2d 104, 107-110 (2d Cir. 1976), cert. denied, 429 U.S. 1039 (1977)

(Van Graafeiland, J., dissenting). Bradley, Racketeers, Congress &

the Courts: An Analysis of RICO, 65 Iowa L. Rev. 837, 892-93 (1980);

Note, 65 Va. L. Rev. 109 (1979); Note, 27 De Paul L. Rev. 89, 105,

112 (1977).

lla

Appendix A

Opinion of United States Court of Appeals

this is the prevailing statutory interpretation. '°

A few courts, notably the Sixth and Eighth Circuits,

have refused to adopt the expansive definition. United

States v. Sutton, 605 F.2d 260 (6th Cir. 1979), submitted

for rehearing en banc, April 2, 1980; United States v.

Anderson, F.2d —_ (8th Cir., Nos. 79-1809,

79-1827, August 7, 1980) (RICO requires discrete econ-

omic association separate from pattern of racketeering).

Cf. United States v. Mandel, 415 F.Supp. 997, 1020

(D. Md. 1976) (pretrial order, not alleged as error on

appeal).

Although Rone was decided prior to Sutton, other

circuit courts addressing the issue thereafter have

not followed the Sixth Circuit. See, e.g., United States

V. Aleman, 609 F.2d 298 (7th Cir. 1979), cert. denied,

100 S.Ct. 1345 (1980); United States v. Whitehead,

618 F.2d 523 (4th Cir. 1980). See also, United States

v. Provenzano, 620 F.2d 985, 992-93 (3d Cir. 1980). But

see, United States v. Anderson, supra.

Even if the broader definition of “enterprise”

adopted in Rone did not bind this panel, the charged

enterprise satisfies the narrower definition of a group

“organized and acting for some ostensibly lawful

purpore, either formally declared or informally recog-

nized.” United States v. Sutton, 605 F.2d at 264. The

concern of the Sutton majority and of commentators

is that the enterprise concept not be extended to include

a loosely confederated group of criminals who perform

unrelated criminal acts. See Note, Elliott v. United

States: Conspiracy Law and the Judicial Pursuit of

Organized Crime Through RICO, 65 U. Va. L. Rev. 109,

119, n. 68 (1978). This is not such a case.

See, e.g., United States v. Whitehead, 618 F.2d 523 (4th Cir.

1980); United States v. Aleman, 609 F.2d 298 (7th Cir. 1979), cert.

denied, 100 S.Ct. 1345 (1980). United States v. Swiderski, 593 F.2d

1246 (D.C, Cir. 1978), cert. denied, 441 U.S. 933 (1979); United States

v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953 (1978);

United States v. Altese, 542 F.2d 104 (2d Cir. 1976). cert. denied,

429 U.S. 1039 (1977).

12a

Appendix A

Opinion of United States Court of Appeals

Certain appellants owned or operated more than

six taverns in Pierce County during the relevant period.

Organized and acting for ostensibly lawful purposes,

they undertook to discourage competition and law

enforcement investigation through arson, extortion,

and physical violence. Further, they used a legitimate

business as an alleged “front” for illegal gambling.

This is precisely the type of operation Congress intended

to encompass within the enterprise concept. See United

States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978),

cert. denied, 441 U.S. 933 (1979) (restaurant used as

a front for narcotics operations).

2. MULTIPLE CONSPIRACIES

Appellants assert that while count 1 alleged but

a single conspiracy, the evidence adduced at trial

established two separate conspiracies resulting in

a variance affecting their substantial rights. See

Kotteakos v. United States, 328 U.S. 750 (1946); Berger

v. United States, 295 U.S. 78, 82 (1935).

John Carbone contends: (1) the incidents involving

Jerome Weinstein (overt acts 4-5, 10-11, 15, 28, 51-55,

59-61, 65-67, 75, 79, 82, 87-93, 99) constitute a conspiracy

independent of the tavern-related crimes; (2) the evidence

adduced at trial as to Carbone’s participation related

only to the “Weinstein matter’; and (3) it was preju-

dicial error to try him for a single conspiracy.

The recurrent issue of multiple conspiracies involves

questions of severance, variance, and misjoinder

which restate the basic contention that the evidence

proved several separate conspiracies. United States

v. Jabara, 618 F.2d 1319, 1327 (9th Cir.), cert. denied,

100 S.Ct. 2973 (1980). The general test is whether

there was “one overall agreement” to perform various

functions to achieve the objectives of the conspiracy.

See United States v. Kearney, 560 F.2d 1358, 1362

(9th Cir.), cert. denied, 434 U.S. 971 (1977). Performance

of separate crimes or separate acts in furtherance of

13a

Appendix A

Opinion of United States Court of Appeals

a conspiracy is not inconsistent with a “single overall

agreement.” United States v. Friedman, 593 F.2d 109

(9th Cir. 1979). The general test also comprehends

the existence of subgroups or subagreements.

Appellants assert there wae no connection between

the harassment and extortion of Weinstein and the

“larger” conspiracy to control the tavern business in

Pierce County. It was the government’s theory that

Weinstein was an enterprise target because he was

believed to have been an IRS informant.

As Weinstein’s former business associate, John

Carbone was in the best position to know what incrim-

inating evidence Weinstein possessed as to Carbone

operations. IRS scrutiny could expose the extent of

Carbone’s financial interests in various enterprise

operations and jeopardize enterprise profits. As the

alleged “head” of the enterprise, John Carbone might

indeed fear a federal tax investigation.

Several circuits have applied a “factors” analysis

to distinguish single from multiple conspiracies. See,

e.g., United States v. Cambindo-Valencia, 609 F.2d

603, 623-25 (2d Cir. 1979), cert. denied, 100 S.Ct. 2163

(1980); United States v. Becker, 569 F.2d 951, 960

(5th Cir.), cert. denied, 439 U.S. 865 (1978). Relevant

factors include the nature of the scheme; the identity

of the participants; the quality, frequency and duration

of each conspirator’s transactions; and the commonality

of time and goals. A single conspiracy can be identified

here either by isolating various elements under the

“factors” analysis or by aggregating evidence under

the “single agreement”’ test.

The nature of the instant scheme was to operate

and control enterprise taverns and related activities

with minimal interference from law enforcement

agencies. This entailed numerous actions to protect

l4a

Appendix A

Opinion of United States Court of Appeals

illegal activities (e.g., unauthorized topless dancing and

gambling) from law enforcement scrutiny. It engendered

a pervasive concern regarding investigation by the

state liquor board, the ATF, and the IRS.

The potential threat posed by local law enforcement

officials was minimal because the sheriff had been suc-

cessfully bribed. As Williams related to an undercover

agent, the only investigators to fear were the IRS or the

“feds.”

Throughout this period, John Carbone insisted

that Weinstein had provided or would provide the IRS

with information. He indicated to Weinstein his belief

that law enforcement efforts could not succeed without

a “stoolie.” The harassment activities against Weinstein

confirm that he acted upon this belief.

Continuation of enterprise activities was dey endent

upon concealment. The operations were particularly

vulnerable to federal investigation. The so-called

“Weinstein matter” was not merely a separate, personal

vendetta by John Carbone.

The use of violence to stifle law enforcement efforts

was a common denominator. When the state liquor

inspector became persistent, a murder attempt was

orchestrated. Similarly, a brutal assault was arranged

because Weinstein was a perceived threat.

Threats, arson, and extortion were employed

against Weinstein, as well as enterprise competitor,

Ron Chase. It is undeniable that the Weinstein matter

and the tavern conspiracy had overlapping participants.

Williams solicited Valentine’s services for arson and

assault contract procurement in both. Zemek, Levage,

and Wilcox were also common participants in arson

activities. The evidence revealed a continuing rela-

tionship among participants organized in a hierarchical

pattern.

15a

Appendix A

Opinion of United States Court of Appeals

The alleged separate conspiracies were also united

in time and place. Count 1 charged a conspiracy from

1971 to November 1978. The attacks upon Weinstein

occurred from 1976 to November 1978, within the

time span of the conspiracy and during the time when

other crimes were occurring (for example, the plot

to blow up the competing Night Moves tavern). The

Weinstein harassment activities promoted the overall

goal of the conspiracy by discouraging cooperation

with law enforcement officials and providing an object

lesson to minions within the enterprise.

The activities were consistent with one overall

agreement to control and manipulate taverns and

related illegal activities in Pierce County. The unity

of time and place, the common identity of participants,

the similarity of method and purpose combine to pro-

vide a rim sufficient to connect the various spokes

of a single conspiratorial wheel.

Having reviewed the record with care, we conclude

that there was no variance between the allegations

of the indictment and the evidence presented. Thus, the

refusal of the trial court to instruct on multiple con-

spiracies caused no prejudice and is not reversible

error. United States v. Perry, 550 F.2d 524, 533 (9th

Cir.), cert. denied, 434 U.S. 827 (1977). The court’s

instructions were sufficient. See United States v.

Kearney, 560 F.2d at 1363."!

\\United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979) does

not dictate a contrary result. Therein the court reversed a conviction

based on juror bias. In dictum, the court considered the issue of

multiple conspiracies because it was likely to arise on remand.

The court expressly relied on United States v. Perry, 550 F.2d 524

(9th Cir.), cert. denied, 434 U.S. 827 (1977), in which the court stated

at 533:

When the possibility of a variance appears between the

indictment and the trial proof, the trial court should instruct

the jury on multiple conspiracies . . . . However, because of

our finding, supra, that there is no such variance in the instant

case, the failure of the trial court to instruct on multiple con-

spiracies caused no harm or prejudice to the defendants and,

as such, is not reversible error.

l6a

Appendix A

Opinion of United States Court of Appeals

As an alternative or supplemental argument in

support of its single conspiracy theory, the government

asserts that even if a single conspiracy cannot be

identified under traditional analysis, the enterprise

concept in RICO supplants conventional conspiracy

doctrine and defeats appellants’ multiple conspiracy

objections. Because a single conspiracy can be identified

using traditional conspiracy analysis, we need not

determine if RICO permits a joint trial of otherwise

non-joinable conspiracies. !2

3. RICO CONSPIRACY

a. ADMISSION OF CO-CONSPIRATORS’

STATEMENTS

Before examining the sufficiency of the evidence,

we meet appellants’ objections to the receipt in evidence

of co-conspirators’ statements. Statements by one

co-conspirator during the course and in furtherance

of a conspiracy are admissible as vicarious admissions

against another co-conspirator. See United States v.

Sandoval-Villaluazo, 620 F.2d 744 (9th Cir., 1980).

Admission of a co-conspirator’s statement is predicated

'*In Elliott v. United States, 571 F.2d 880 (5th Cir.), cert. denied,

439 U.S. 953 (1978), the Fifth Circuit construed the enterprise concept

in RICO as circumventing limitations imposed by conventional

conspiracy doctrine. 571 F.2d at 900. The court described RICO as

supplanting the common objective rationale of conspiracy law with

the enterprise concept whereby criminal association itself could

constitute an enterprise.

It has been noted that the language and legislative history of

RICO do not expressly indicate an intent to rework basic conspiracy

law as related to organized crime. See Note, 65 U. Va. L. Rev. 109

(1979). See also United States v. Anderson, F.2d . (8th

Cir., Nos. 79-1809, 79-1827, August 7, 1980). In any event, the con-

spiratorial objective herein is not as ill-defined as in Elliott. A single

overall agreement can be identified under conventional conspiracy

doctrine.

17a

Appendix A

Opinion of United States Court of Appeals

upon independent proof of defendant’s participation,

however. See Fed.R.Evid. 801(d)(2)(E).

Two objections are raised here. First, Janovich

argues that a pretrial determination of admissibility

is required. Second, John Carbone asserts there was

insufficient prima facie proof of his involvement,

independent of the co-conspirators’ statements.

The district court provisionally admitted the

co-conspirators’ statements subject to establishing

the requisite independent proof. Thereafter, it expressly

found that a prima facie case of involvement had been

established as to the appellants. Janovich argues

that a pretrial determination of admissibility is required.

This court has held repeatedly that the order of

proof is within the sound discretion of the trial court.

United States v. Sandoval-Villalvazo, supra. The

procedure of conditionally admitting co-conspirator’s

statements subject to later motions to strike is well

within the court’s discretion. United States v. Batimana,

623 F.2d 1366, 1369 (9th Cir. 1980). Finding no abuse

of discretion, we uphold the court’s provisional admis-

sion of the statements.!*

The test for admission of co-conspirators’ state-

ments is whether there is “sufficient, substantial

evidence” apart from them to establish a prima facie

case of conspiracy and defendant’s slight connection

therewith. United States v. Weiner, 578 F.2d 757,

768-69 (9th Cir.), cert. denied, 439 U.S. 981 (1978).

\3Janovich urges this court to follow the Fifth Circuit citing

United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified en

banc, 590 F.2d 575, cert. denied, 442 U.S. 917 (1979). In its en banc

opinion, the Fifth Circuit expressed a “preference” for pretrial

determination of admissibility, if “reasonably practicable.” 590

F.2d at 587. In light of consistent Ninth Circuit precedent allowing

conditional admission, we reject Janovich’s argument for a man-

datory pretrial determination. We note that even under the Fifth

Circuit’s asserted preference, the practicality of a pretrial determina-

tion is questionable here.

18a

Appendix A

Opinion of United States Court of Appeals

Although John Carbone does not challenge the exist-

ence of a conspiracy, he does assert there was insuf-

ficient independent evidence linking him to the con-

spiracy.

Carbone’s own taped conversations with Weinstein

provide the primary evidence linking him to specific

activities of the conspiracy. Therein, Carbone admitted

his experience in providing “protection” and using

muscle; his “control” of Williams; his familiarity with

gambling operations; and his transactions with persons

he described as “Mafia.” His recorded conversations

indicated he had observed the assault upon Weinstein."

He offered no explanation by evidence of argument for

these admissions.

Carbone’s reliance upon United States v. Diecidue,

603 F.2d 535 (5th Cir. 1979), cert. denied, 100 S.Ct.

1345 (1980) is misplaced. The Fifth Circuit found that

absent the statements of co-conspirators, the case

against Diecidue was “built of supposition on a foun-

dation of inference.” 603 F.2d at 555. Carbone’s taped

statements provide a direct link to his involvement

in controlling taverns and his personal role in the

related extortion of Weinstein. The government

established the requisite connection to permit admission

of co-conspirators’ statements.

'*Carbone told Weinstein that he could describe, in “very authen-

tic” detail, Weinstein’s assault. He stated that Weinstein was

“hollerin” and he “heard him.” He related details about the assault

and that the assailant was “supposed to get paid by the limb” but

his weapon broke.

19a

Appendix A

Opinion of United States Court of Appeals

b. SUFFICIENCY OF EVIDENCE

John Carbone, Joe Carbone, Zemek, Caliguri, and

Janovich challenge directly the sufficiency of the

evidence under Count 1.5 Once the facts are established,

viewed in the light most favorable to the government,

the test for sufficiency is whether jurors could reasonably

decide to act in their own serious affairs on factual

assumptions as probable as the conclusion the defend-

ants were guilty beyond a reasonable doubt. United

States v. Price, 623 F.2d 587, 591 (9th Cir. 1980).

'5Although Mazzuca attacks the admission of certain evidence,

see note 18, infra, he does not directly challenge the sufficiency of

the evidence as to count 1. He does assert that a conspiracy to obstruct

state gambling laws, 18 U.S.C. § 1551, is not properly chargeable

as a predicate crime of a RICO conspiracy under 18 U.S.C. § 1962(d).

He argues inclusion thereof creates a “conspiracy to conspire”

which is void for vagueness.

RICO itself has consistently withstood constitutional challenges

as void for vagueness. See, e.g., United States v. Campanale,

518 F.2d 352, 364 (9th Cir. 1975), cert. denied, 423 U.S. 1050 (1976).

The essence of a RICO conspiracy is not an agreement to commit

predicate crimes but an agreement to conduct or participate in the

conduct of the affairs of an enterprise through a pattern of rack-

eteering. “Pattern” is expressly defined as two or more predicate

offenses. 18 U.S.C. § 1961(1) lists several acts of racketeering includ-

ing violation of 18 U.S.C. § 1511. 18 U.S.C. § 1961(1)(B). Cf. United

States v. Weisman, F.2d _.__. (2d Cir., Nos. 79-1315, 79-1318,

April 4, 1980) (conspiracy can be properly charged as predicate act

under 18 U.S.C. § 1962(c) when it involves any of the substantive

offenses listed in § 1961(1)(D)).

Count 1 did not charge appellants with a conspiracy to conspire.

Cf. United States v. Feliziani, 472 F.Supp. 1037, 1042 (E.D.Pa. 1979),

aff'd, 622 F.2d 580 (1980) (evidence sufficient to support convictions

under both 18 U.S.C. § 1962(d) and § 1511).

Mazzuca further objects to application of RICO as unconstitu-

tional, citing Griswold v. Connecticut, 381 U.S. 479 (1965). Absent

development of authority and some relation to the facts of this case,

we decline to hypothesize constitutional defects.

20a

Appendix A

Opinion of United States Court of Appeals

In measuring a conspirator’s complicity, the court

must decide if there was sufficient evidence to conclude:

(1) the charged conspiracy existed; (2) defendant had at

least a “slight” connection therewith; and (3) defendant

knew he was connected with the charged conspiracy,

United States v. Smith, 609 F.2d 1294, 1297 (9th Cir.

1979). Appellants focus upon the final element. The

evidence against each will be reviewed individually.

John Carbone’s primary argument is that he had

retired from the tavern and bail bonding businesses

and his only business interest during the relevant

period was Vista Auto Sales. There is a significant

body of credible, circumstantial evidence that he retained

both financial and personal control of several enterprise

operations. As discussed above, the most damaging

evidence against him was his own taped statements to

Weinstein intimating his involvement in illegal activi-

ties. Carbone also told of “unloading” money on poli-

ticians with the tacit understanding that help would

be forthcoming when needed.

Carbone claimed that Janovich would do anything

he wished. He bragged that Williams “performed”’

for him and had made him a millionaire. In taped con-

versations, Zemek and Williams indicated they per-

ceived Carbone as their superior. There was evidence

Williams frequently visited Vista Autos, often prior

to making business decisions. John Carbone met

privately with Williams and Janovich several times

at the office of his attorney.

In April 1977, a disco-restaurant in competition

with an enterprise operation was destroyed by fire.

Carbone’s attorney testified that when co-defendant

Levage attempted to retain him to defend arson charges

in state court, he was told that John Carbone and

Williams would pay the fee.

2la

Appendix A

Opinion of Un..ed States Court of Appeals

Vista Autos, an acknowledged Carbone operation,

served as the communication center for the planned

bombing of Night Moves. John was observed listening

to the crucial phone conversation with the bomber for

a short time. A few hours later he was observed leaving

Joe Carbone’s Flitter In accompanied by Williams

who carried the identifying signal requested by the

bomber.

Carbone does not challenge the evidence as to

the Weinstein extortion, relying upon his multiple

conspiracies argument rejected above. The record does

not support his assertion that there was no evidence

against him except as to the Weinstein counts. There

was abundant evidence of his connection with the con-

spiracy revealing his role as a financier and overseer

of the enterprise.

Joseph Carbone asserts that he and Williams were

‘mere associates” and he was not involved in the plots

and schemes attributable to Williams. The relationship

between Williams and Joe was more than a mere asso-

ciation. Both were insured together for two establish-

ments, Flitter In and Back Door Disco. Williams referred

to Joe as his “partner” in topless clubs.

Prior to taking retaliatory actions against a com-

petitor, Williams stated he asked Joe to verify that

the “target” did not operate under the protection of an

alleged Mafia figure in an adjoining county. John

Carbone frequently referred to “Joe and Ron [Williams]”

when speaking to Weinstein about his business affairs.

We reject Joe Carbone’s “mere association” argument.

The government produced evidence of Joe’s involve-

ment in “torching” a tavern owned by his father which

was experiencing bad business.'® His topless dancing

'6See pp. 35-38, infra.

22a

Appendix A

Opinion of United States Court of Appeals

operation, the Flitter In, was in direct competition

with Night Moves. There was ample evidence of his

involvement in the bomb plot against Night Moves.

We find sufficient evidence from which the jury could

conclude beyond a reasonable doubt that Joseph

Carbone was a knowing member of the conspiracy.

Zemek characterizes the evidence against him

as merely indicative of associational ties with the

primary actors. He dismisses his taped admissions

as “drunk talk” and false bravado. His intimate knowl-

edge of many details belies this purported defense.

On tape Zemek admitted involvement in a fire

bombing of the Night Moves tavern and his responsi-

bility for one fire at Weinstein’s residence. He told of

taking money to co-defendant Levage, imprisoned on a

state conviction for burning a competing disco.

Zemek solicited Valentine to set fire to a tavern

which Williams and he had been unable to acquire.

There was sufficient evidence to permit an inference

that he was then working for the enterprise.

The Fourth Circuit has said that the “conduct

or participate” language in § 1962(c) requires proof

of involvement in the operation or management of the

RICO enterprise. See, e.g., United States v. Mandel,

591 F.2d 1347, 1375 (4th Cir.), rev’d on other grounds,

602 F.2d 653 (1979) (en banc) cert. denied, 100 S.Ct.

1647 (1980). Zemek’s assertion that he was unaware

of the scope of the enterprise and did not agree to con-

duct its affairs ignores his active participation and

his solicitation efforts. That he knew the structure

of the organization is clear from his statement that

Williams was owned or controlled by “Dagos”, an

admitted reference to the Carbones, particularly John.

There was ample evidence of Zemek’s participation

and involvement in the operation of the enterprise.

23a

Appendix A

Opinion of United States Court of Appeals

Caliguri asserts the evidence did not establish

that he was a knowing member of the conspiracy. He

was identified as the masked intruder who broke into the

home of competitor Ron Chase and threatened the

occupants if the Chases continued their topless dancing

business. He was also identified as the person who

tailed Chase.

There was evidence that Caliguri executed Joe

Carbone’s order to “do something about” an enterprise

tavern experiencing bad business. Shortly after that

directive, the tavern was destroyed by fire. Caliguri

was also active in the plot to blow up Night Moves.

When he was arrested, agents found a shaving kit in

Caliguri’s car containing his gun and the home phone

numbers of John and Joe Carbone and Williams. The

evidence established Caliguri was a knowing and willful

conspirator.!”

Sheriff Janovich strenuously asserts that he was

but an acquaintance of the principals herein. The

evidence showed a long-term relationship between

John Carbone and Janovich. John Carbone’s attorney

testified to several meetings between Janovich, Carbone

and Williams at his office. Janovich arranged an intro-

duction and meeting between John Carbone (ostensibly

retired) and the jail superintendent of an adjoining

county to discuss expanding the Carbone bail bond

business. Carbone bragged of his control over Janovich.

In 1976 Janovich arranged a meeting between

Williams and an assistant attorney general directing

the state’s organized crime unit. On tape, Williams

'7Caliguri claims that the government proved that he conspired

to commit only one predicate crime. The evidence showed that in

fact he agreed to commit a substantial number of predicate crimes on

behalf of the enterprise. Appellant conspired to commit a series

of predicate crimes against Night Moves (arson, extortion, bombing).

He was also aided in three separate instances of mail fraud. See

pp. 35-38, infra.

24a

Appendix A

Opinion of United States Court of Appeals

revealed that Janovich had warned him of federal

“heat” in the spring of 1978.

The indictment assigned Janovich both protection

and harassment roles. There was some evidence of

his involvement in an “emphasis patrol” of an enterprise

competitor, culminating in visits by fifteen law enforce-

ment personnel within a thirty-minute period. The

government presented circumstantial evidence of

Janovich’s efforts to stifle arson investigations. On

tape Williams suggested that if business were poor,

a tavern could be “torched” and the sheriff would

limit investigation.

The most damaging evidence against Janovich

was taped conversations regarding the protection aspect

of the conspiracy. Therein he acknowledged his aware-

ness of a warning system and his intent not to interfere

in illegal gambling operations. That a price was exacted

for such cooperation is clear. One gambling operator

at an enterprise tavern testified that Janovich pocketed

a $100 payment which the “donor” intended for pro-

tection. Janovich also accepted $1,300 from the under-

cover agent posing as the buyer of Mr. Lucky’s.

Janovich testified that he accepted these payments

as campaign contributions yet they were not reported

on campaign disclosure forms. Indeed, no record was

made of their receipt. The jury could reject his explan-

ation as implausible. See United States v. Young,

573 F.2d 1137, 1139 (9th Cir. 1978) (it is the exclusive

function of the jury to weigh the credibility of wit-

nesses). Janovich’s actions were those of a “knowing

participant.” See United States v. Whitehead, 618

F.2d 523 (4th Cir. 1980) (county attorney agreed to

give advance notice of raids to prostitution ring in

return for cash payments and free services).

25a

Appendix A

Opinion of United States Court of Appeals

There was sufficient evidence to support the con-

viction of each appellant under count 1.!8 We now

examine the other challenged counts. !9

HOBBS ACT

Count 6 charged Zemek, Caliguri, John and Joe

Carbone and Williams with violating 18 U.S.C. § 1951

by attempting to obstruct interstate commerce by

extortion to obtain the goodwill and customer revenues

of a competing tavern, the “Night Moves”, owned by

Ron Chase. The elements of a Hobbs Act violation

are extortion and a nexus with interstate commerce.

Stirone v. United States, 361 U.S. 212 (1960).

18Mazzuca challenges admission of certain evidence pertaining

to overt acts in the count 1 conspiracy. Overt acts need not be criminal

but must be in furtherance of the conspiracy. United States v. Young,

573 F.2d 1137 (9th Cir. 1978). If evidence of other misconduct tends

to prove some element of the crime charged, such as knowledge,

intent, motive, design or scheme, it may be admissible.

Once the trial court determines evidence of extrinsic acts is

relevant, it must weigh the probative value of the evidence against

its prejudicial effect and that determination is not disturbed absent

an abuse of discretion. United States v. Riggin, 539 F.2d 682 (9th

Cir. 1976), cert. denied, 429 U.S. 1045 (1977). An important con-

sideration in this process is whether the other acts are closely con-

nected in time and nature to the offense charged. We find such a

connection. The district court did not abuse its discretion in admitting

the challenged evidence.

'9Only Williams and John Carbone were sentenced to terms

to be served consecutively with the count 1 sentence. See note 6

supra. As to the Carbones, Williams and Mazzuca, the practical

effect of reversal on any of the remaining counts would be a reduction

in fines.

The court imposed concurrent sentences and assessed no fines

against Janovich, Zemek, and Caliguri. Nevertheless, the nature

of the charges and the complexity of the case compel us to examine

the challenges as to the remaining counts rather than invoke the

concurrent sentence doctrine.

26a

Appendix A

Opinion of United States Court of Appeals

Extortion is “the obtaining of property from

another, with his consent, induced by wrongful use

of actual or threatened force, violence, or fear, or under

color of official right.” 18 U.S.C. § 1951(b)(2). The alleged

forceful acts include damaging the tavern with a Molo-

tov cocktail in November 1977; destroying Night Moves

by fire in February 1978; tailing the owners of the tavern;

breaking into their home and threatening the occupants

in August 1978; and plotting to blow up the tavern

in November 1978.

Zemek, Caliguri and Williams argue no violation

was established because: (1) no “property” was obtained

or sought; (2) no wrongful inducement was employed;

and (3) the Chases did not consensually yield any prop-

erty. All five appellants argue the evidence was insuf.-

ficient.2°

*Caliguri also asserts no interstate commerce nexus was

established. The effect on interstate commerce need only be de mini-

mis. An actual effect is not required for an attempted Hobbs Act

violation; the effect need only be “probable” or “potential.” See

United States v. Phillips, 577 F.2d 495 (9th Cir.), cert. denied, 439

U.S. 831 (1978). See also, United States v. Brooklier, 459 F.Supp.

476 (C.D. Calif. 1978).

There was evidence the Chases purchased supplies and hired

employees from out-of-state. Threatened depletion of resources

from a business engaged in interstate commerce provides an adequate

jurisdictional base. United States v. Phillips, supra. The jury was

so instructed (No. 18). It is not necessary that the subject of the

extortion constitute commerce, only that commerce be affected in

some way. Carbo v. United States, 314 F.2d 718, 732 (9th Cir. 1963),

cert. denied, 377 U.S. 953 (1964). See also United States v. Staszcuk,

517 F.2d 53 (7th Cir.), cert. denied, 423 U.S. 837 (1975); United States

v. Augello, 451 F.2d 1167 (2d Cir. 1971), cert. denied, 405 U.S. 1070

(1972).

27a

Appendix A

Opinion of United States Court of Appeals

1. INTANGIBLE PROPERTY

The concept of property under the Hobbs Act has

not been limited to physical or tangible “things.” The

right to make business decisions and to solicit business

free from wrongful coercion is a protected property

right. See, e.g., United States v. Santoni, 585 F.2d 667

(4th Cir. 1978), cert. denied, 440 U.S. 910 (1979) (right

to make business decisions free from outside pressure

wrongfully imposed); United States v. Nadaline, 471

F.2d 340 (5th Cir.), cert. denied, 411 U.S. 951 (1973)

(right to business accounts and unrealized profits);

United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969),

cert. denied, 397 U.S. 1021 (1970) (right to solicit business

free from territorial restrictions wrongfully imposed

by competitors). Cf. United States v. Hathaway, 534

F.2d 386, 395 (1st Cir.) cert. denied, 429 U.S. 819 (1976)

(rejection of narrow perception of “property”); Battaglia

uv. United States, 383 F.2d 303 (9th Cir. 1967), cert. denied,

390 U.S. 907 (1968) (right to lease space in bowling

alley free from threats).

The trial court instructed the jury using the fol-

lowing language from United States v. Tropiano, supra,

418 F.2d at 1075: property includes “any valuable right

considered as a source or element of wealth”. No excep-

tion was noted. Chase’s right to solicit business free

from threatened destruction and physical harm falls

within the scope of protected property rights under

the Hobbs Act.

2. COERCION

It is difficult to view the acts directed against

the Night Moves and its proprietor as non-coercive.

Threatened force may encompass fear of economic

loss as well as physical violence. See Instruction No. 36.

Cf. United States v. Gates, 616 F.2d 1103, 1106 (9th

28a

Appendix A

Opinion of United States Court of Appeals

Cir. 1980) (inducing payments to avoid county business

tax).

Appellants expressly communicated their purpose

when a man, later identified as Caliguri, broke into

the Chases’ home, bound the occupants, and threatened

to kill them if they did not give the Chases a message

to “leave town.” He warned that it was futile to reopen

Night Moves because it would “come down again”.

The Chases had rebuilt the tavern after it was destroyed

by a fire arranged by Williams in February 1978.

3, CONSENT

Appellants’ argument that the convictions must

be reversed because Chase was not induced to give up

property “with his consent” ignores the fact that count 6

charged attempted extortion. The jury was so instructed.

To prove the substantive act of attempted extortion

there must be proof of an attempt to instill fear. Carbo v.

United States, 314 F.2d 718, 741 (9th Cir. 1963), cert.

denied, 377 U.S. 953 (1964). Evidence of the previously

described acts of intimidation and violence suffices.

Appellants’ objective was to induce Chase to give up

a lucrative business. The fact that their threats were

unsuccessful does not preclude conviction.

4. CRIMINAL LIABILITY

On this and other substantive counts, the indictment

charged liability as an aider and abettor and as a

principal. 18 U.S.C. § 2. The jury was instructed on the

complicity theory. Conviction as an aider and abettor

requires proof the defendant willingly associated him-

self with the venture and participated therein as some-

thing he wished to bring about. See United States v.

Groomer, 596 F.2d 356 (9th Cir. 1979). A review of the

29a

Appendix A

Opinion of United States Court of Appeals

record reveals substantial evidence that appellants

associated with and participated in the efforts against

Chase.

John Carbone’s primary connection to the Night

Moves plot involves the November 1978 scheme to

blow up the tavern. Vista Autos was the site of a crucial

phone conversation with the bomber. The bomber

discussed his demands, and requested the “contact”

carry a paper bag for identification. John was present

and listened briefly. A few hours later he was observed

leaving Joe Carbone’s Flitter In with Williams. Williams

was carrying the requested paper bag. When Caliguri

was arrested at a rendezvous with the bomber, agents

found notes with the home phone numbers of John

and Joe Carbone and Williams.

Ron Chase testified that Joe Carbone’s Flitter In

and Night Moves were two of only four topless dancing

taverns in the county. Carbone and Chase directly

competed for dancers and customers. Joe Carbone

and his sometime employee, Caliguri, visited the Night

Moves after it opened. Caliguri was in Joe’s employ

when he tailed the Chases and broke into their home.

Joe entered Vista Auto’s office during the crucial phone

conversation and listened to the final minutes. His

home phone number was also found on Caliguri.

Caliguri was seen tailing the Chases in a Vista

Autos car, even though he was not at that time employed

by the dealership. He was identified at trial as having

entered the Chases’ home and threatened its occupants.

He was arrested while serving as a go-between in the

November 1978 bombing plot.

On tape Zemek admitted involvement in the Molotov

cocktail incident at Night Moves. In a taped conver-

sation he revealed his awareness of the Chases rebuild-

ing efforts after the February 1978 arson and of the

efforts to drive Chase out of business.

30a

Appendix A

Opinion of United States Court of Appeals

Williams asked Valentine to arrange for the arson

of Night Moves because it drew business from Mr.

Lucky’s. Co-defendant Bentley admitted setting the

fire. Before soliciting the arson, Williams indicated

he had asked “Joe” to make sure Chase did not operate

under the protection of a well-known nightlife figure

in the adjoining county. In November 1978 Williams

solicited help from an undercover agent in finding a

bomber to destroy Night Moves.

This evidence more than satisfied the government’s

burden to prove active participation and willful asso-

ciation as to Zemek, Caliguri and the Carbones. The

government established compelling evidence of

Williams’ participation as a principal in soliciting

arson and arranging a bombing.

OBSTRUCTING COMMUNICATION TO A

CRIMINAL INVESTIGATOR

John Carbone and Williams were charged under

18 U.S.C. § 1510 with willfully endeavoring to obstruct

communication of information relating to criminal

violations, by attacking the property (count 7) and

person (count 8) of Jerome Weinstein, the person they

believed had given information to the IRS. Zemek

was also charged under count 7.

Although the IRS had conducted a criminal investi-

gation of John Carbone, Weinstein had not, in fact,

been its informant. In January 1977 John Carbone

was notified that the IRS investigation had concluded.

Certain alleged acts of violence directed at Weinstein

occurred thereafter.

Appellants assert these acts do not fall within the

statutory proscription of 18 U.S.C. § 1510 because

(1) Weinstein was not in fact an informant; (2) retaliatory

3la

Appendix A

Opinion of United States Court of Appeals

acts are not proscribed; or (3) the statute does not

cover threats or injuries inflicted after an investigation

has terminated.

18 U.S.C. § 1510(a) provides:

Whoever willfully endeavors by means of bribery,

misrepresentation, intimidation, or force or

threats thereof to obstruct, delay, or prevent

the communication of information relating to

a violation of any criminal statute of the United

States by any person to a criminal investigator;

or

Whoever injures any person in his person or

property on account of the giving by such person

or by any other person of any such information

to any criminal investigator --

Shall be fined not more than $5,000 or imprisoned

not more than five years, or both.

The statute has been construed as requiring proof of

specific intent. United States v. Carleo, 576 F.2d 846

(10th Cir.), cert. denied, 439 U.S. 850 (1978). While the

first two paragraphs of § 1510(a) are phrased disjunc-

tively, the indictment and jury instructions in this

case were phrased conjunctively (i.e., the government

must prove willful endeavor to obstruct communication

and injury “on account of” giving information).

1. IDENTITY OF INFORMANT

The identity cf the actual IRS informant in 1976

is unknown. Carbone knew Weinstein had information

of interest to the IRS and believed he had informed in

the past. The government introduced ample eviderce

of the requisite mens rea supported by several corrobor-

ating acts.

32a

Appendix A

Opinion of United States Court of Appeals

Legislative history is silent regarding the necessity

of proving a defendant had actual knowledge that

an alleged informant had transmitted or would transmit

information. The Third Circuit, relying on case law

construing similar statutes, has held actual knowledge

is not required and a “reasonably founded’ belief

will suffice. See United States v. Kozak, 438 F.2d 1062

(3d Cir.), cert. denied, 402 U.S. 996 (1971). See also,

United States v. San Martin, 515 F.2d 317 (5th Cir.

1975) (defendant knew or “reasonably believed” person

had information).

The jury instruction in this case asked whether

defendants knew or believed Weinstein was about

to give information and had given information in the

past. No exception was taken. The jury was also in-

structed that a mere threat of force unrelated to the

communication of information would not violate

the act. The jury was adequately instructed. Appellants

did not need to succeed in their efforts to prevent or

delay communication of information. The statute

speaks of “endeavors.”

2. RETALIATORY ACTS

We reject appellants’ argument that their con-

victions must be reversed because the statute does

not proscribe retaliatory acts. Threats and intim-

idation may serve two purposes: (1) deterring future

communications; or (2) retaliating for past communi-

cations. United States v. Koehler, 544 F.2d 1326, 1329

(5th Cir. 1977). While threats intended to thwart future

communications clearly will support a conviction

under § 1510, United States v. Koehler, supra, the

Fifth Circuit has held that retaliatory threats will

not support conviction. United States v. San Martin,

515 F.2d at 320.

33a

Appendix A

Opinion of United States Court of Appeals

The present record provides a basis to infer that

appellants’ purpose in attacking Weinstein was to

deter future communications. Weinstein still posed a

threat to Carbone. He had financial information of

potential interest to the IRS. The IRS maintained a

continuing interest in John Carbone. Carbone believed

information was or was about to be given.

The evidence supports an inference that one purpose

was to interfere with future communication of infor-

mation. Thus, even were we to apply the Fifth Circuit’s

distinction between retaliation and deterrence, the

convictions may be sustained.?!

3. TERMINATION OF INVESTIGATION

It is not fatal that the IRS investigation terminated

in January 1977, prior to the alleged acts and threats

of violence. Section 1519 does not require “an investi-

gation be taking place” concurrently with the proscribed

21The San Martin court stated:

A literal reading of the provision of the statute under consider-

ation indicates that it is aimed at deterring interference with

future communication of information. It does not prohibit

the making of a threat, as opposed to the infliction of bodily

injury, in retaliation for having communicated information

to a criminal investigator, at least where such a threat cannot

be interpreted as having been intended to interfere with future

communication of additional information or with continued

cooperation.

515 F.2d at 320 (emphasis added).

The Fifth Circuit’s distinction between retaliation and deter-

rence is arguably limited to 18 U.S.C. § 1510(a) q 1 which speaks

of willfully endeavoring to obstruct, delay or prevent communication.

Paragraph 2 addressed actual injury “on account of” the giving of

information. The instant case involved infliction of bodily injury,

not merely the making of a threat.

34a

Appendix A

Opinion of United States Court of Appeals

acts. See United States v. Lippman, 492 F.2d 314, 317

(6th Cir. 1974), cert. denied, 419 U.S. 1107 (1975). The

statutory focus is upon an endeavor to prevent com-

munications to federal investigators.??

4. SUFFICIENCY OF THE EVIDENCE

Neither Williams nor John Carbone directly

challenge the sufficiency of the evidence. There was

ample evidence as to Williams’ complicity. He hired

Valentine to set fire to Weinstein’s house in May 1978,

offered Valentine an assault contract on Weinstein

in 1978, and accepted money for protection. Relying

entirely on his multiple conspiracies analysis rejected

above, John Carbone does not challenge the sufficiency

of the evidence as to the counts involving Weinstein.

Zemek was charged under count 7 which alleged

damage to Weinstein’s property. In taped conver-

sations, Zemek admitted responsibility for arranging

a fire of Weinstein’s garage door in March 1977. He

said the attacks were made because Weinstein was an

informant “on some tax deal.” There was enough

evidence that Zemek was aware of the relationship

between the arson and Weinstein’s perceived position

as a “stoolie” to support his conviction as an aider

and abettor.

ILLEGAL GAMBLING BUSINESS

John Carbone, Williams and Mazzuca were charged

with operating an “illegal gambling business” in vio-

lation of 18 U.S.C. § 1955. Count 9 involved pot limit

poker and count 10 involved blackjack. Count 11 charged

“Although the statute requires that the intended recipient

of the communications be an “investigator” as defined under the

act, (18 U.S.C. § 1510(b) ), proof of that element is not challenged.

35a

Appendix A

Opinion of United States Court of Appeals

them and Janovich with a concurrent conspiracy to

obstruct state law enforcement to facilitate this gamb-

ling business. 18 U.S.C. § 1511. Appellants object to

the trial court’s instruction defining “gross revenue”

and Mazzuca, Carbone and Janovich challenge the

sufficiency of the evidence as to specified counts.

1. GROSS REVENUE

Both 18 U.S.C. § 1955 and § 1511 require that an

illegal gambling business: (1) violate state law; (2)

involve five or more persons; and (3) operate substan-

tially continuously for more than 30 days or have

gross revenue of $2,000 in any single day. Mazzuca and

Janovich question the government’s proof of the

$2,000 gross revenue option of the third requirement.”*

The district court’s instruction defined gross

revenue as “the total amount of money wagered in a

single day not restricted to net profit.” Appellants

do not contend gross revenue should be equated with

net profit.24 Rather, they object to the court’s refusal

to give a proposed instruction containing this caveat:

gross revenue does not include “side bets among players

or wagers placed in a common pot.” We find no error

in the trial court’s instruction in light of the evidence.

Courts discussing and rejecting the proposition

that gross revenue is restricted to net profit broadly

define gross revenue as “the total amount wagered”

and do not differentiate between wagers placed against

the house and wagers among players. See, e.g., United

24Count 9 of the indictment alleged operation of the pot limit

poker games from May 23, 1978 to July 1, 1978. As to this count,

the jury was instructed on the 30 day option.

Such an argument would be unavailing in light of United

States v. Sacco, 491 F.2d 995 (9th Cir. 1974) (en banc).

4

36a

Appendix A

Opinion of United States Court of Appeals

States v. Rotchford, 575 F.2d 166, 174 (8th Cir. 1978);

United States v. Sacco, 491 F.2d 995, 1001 (9th Cir.

1974); United States v. Ceraso, 467 F.2d 653, 656-57

(38d Cir. 1972).

Appareritly no court has expressly determined

if “gross revenue” excludes side bets.25 In United States

v. Graham, 534 F.2d 1357 (9th Cir. 1976), this court

suggested that side bets may be excluded from the

gross revenue computation. There, as here, however,

the record indicated that money was indeed wagered

against the house.

The government offered testimony that the house

had an interest in all amounts bet at the pot limit poker

games: a dollar per pot charge plus a percent of each

pot. House dealers would “rake off’ the pot. The oper-

ation also provided dealers for blackjack and used

shills to increase the ante in blackjack and poker

games. Their winnings were returned to the house.

No evidence was introduced as to side-betting

among or between the players.” The court properly

instructed the jury and did not err in refusing to give

appellants’ proposed instruction.

“Cases tried under the 30 day option of 18 U.S.C. § 1955, rather

than the $2,000 gross revenue option, do refer to occurrences of side

betting. See, e.g., United States v. Mattucci, 502 F.2d 883, 836-87

(6th Cir. 1974). Cf. United States v. Nettles, 570 F.2d 547, 550 (5th

Cir. 1978).

**Mazzuca and Janovich also object to the court’s allegedly

prejudicial limitation of cross-examination of agent Early. Early

observed the action and testified as to the betting. A review of the

record indicates that the stricken questions, propounded by

Mazzuca’s counsel, addressed the issue of net profit, not side betting.

It is clear that the trial court and co-counsel so construed the area

of inquiry. Indeed, co-defense counsel! requested a mid-trial instruc-

tion clarifying that net profit is not to be equated with gross revenue.

37a

Appendix A

Opinion of United States Court of Appeals

Mazzuca also challenges proof of $2,000 gross

revenue as to count 10 (blackjack). Agent Transeth, an

accountant, observed the action and conservatively

estimated $4,000 in two hours. An undercover agent

may observe and testify to the action. Cf. United States

v. Graham, supra. The record provides sufficient foun-

dation for the estimate. In addition, Williams bragged

that $2,000 profit was possible on a good night. Finally,

one of the operators testified to action of “a couple

thousand” per night.

2. BLACK JACK AND POT LIMIT POKER

Neither Mazzuca nor Wiiliams challenge the suf-

ficiency of the evidence to convict under counts 9 and

10. Both had ownership interests in Mr. Lucky’s. Both

approached an operator to set up “after hours” pot

limit poker games and blackjack games; and both

promoted the sale of Mr. Lucky’s with the illegal gamb-

ling operations.

John Carbone frequently bragged of his profitable

relationship with Williams. It is permissible to infer

that he referred to on-going ventures in which Williams

“performed” for him. John Carbone related to Weinstein

that he had a proprietary interest in the illegal gamb-

ling business which Williams and Mazzuca operated

in the rear of Stan & Ollie’s.?’

Surveillance agents observed Williams consulting

with John Carbone before making major decisions.

Williams excused himself midway through a prelim-

inary discussion regarding the sale of Mr. Lucky’s.

He drove to John Carbone’s Vista Autos and briefly

conferred. Upon his return to Mr. Lucky’s, Williams

invited the undercover agents to an illegal blackjack

game to be held that evening.

27One of the gambling operators testified that Mazzuca told him

of a “higher up” in the operation who could be called upon to resolve

disputes between Mazzuca and Williams.

38a

Appendix A

Opinion of United States Court of Appeals

In light of this evidence and other circumstantial

evidence of Carbone’s active role, albeit behind-the-

scenes, we cannot say that the evidence was insuf-

ficient to establish his complicity in the gambling

operations.

3. CONSPIRACY TO FACILITATE

ILLEGAL GAMBLING

Mazzuca, Janovich, and John Carbone challenge

the sufficiency of the evidence under count 11 charging

violation of 18 U.S.C. § 1511 which proscribes a con-

spiracy to obstruct state law enforcement with intent

to facilitate an illegal gambling business.28 We find

sufficient evidence of the existence of a conspiracy

and appellants’ connection and knowing participation

therein.

The government introduced tape recordings in

which Mazzuca told the agent posing as a buyer of

Mr. Lucky’s that he and Williams would provide intro-

ductions to political figures who could guarantee no

prosecutions or arrests for illegal gambling. Discussions

of the protection aspect of the gambling business ensued.

**18 U.S.C. § 1511 provides in part:

(a) It shall be unlawful for two or more persons to conspire

to obstruct the enforcement of the criminal laws of a State

or political subdivision thereof, with the intent to facilitate

an illegal gambling business if -

(1) one or more of such persons does any act to effect the

object of such a conspiracy;

(2) one or more of such persons is an official or employee,

elected, appointed, or otherwise, of such State or political

subdivision; and

(3) one or more of such persons conducts, finances, manages,

supervises, directs or owns all or part of an illegal gambling

business.

Williams was also charged under count 11 but does not challenge

the sufficiency of the evidence.

39a

Appendix A

Opinion of United States Court of Appeals

When a gambling operator complained about the

necessity of “contributing” $100 to Janovich, Mazzuca

said he had given $300. In a meeting with the under-

cover agent, Janovich expressed satisfaction that

Mazzuca would remain at Mr. Lucky’s after the sale.

Mazzuca’s argument that he was not a knowing par-

ticipant is rejected.

Janovich asserts that the evidence established

only a “mere association” with co-defendants and

that his acceptance of money from the undercover

agent established a separate conspiracy.

There was ample evidence that Janovich agreed

to provide protection for the gambling operations as

well as to harass would-be competitors. See United

States v. Panzanella, 416 F.Supp. 68 (W.D. Pa. 1976).

His role in facilitating the gambling operation was

established by testimony and his taped statements.

One operator testified that Williams assured

him of protection from arrest because the sheriff was

“in his hip pocket.” If a raid was planned, they would

receive two-hour advance notice. Taped statements

by co-conspirator Williams refer to the sheriff's com-

plicity. Williams arranged the initial meeting between

Janovich and the agent posing as a buyer of Mr. Lucky’s.

Williams solicited $300 from the agent to be passed

to Janovich. After the meeting, Williams reported

that the sheriff would do business but wanted money

“right away” without any “heat.” At the second meeting,

Janovich acknowledged receipt of the first payment.

He accepted $1,000 cash from the agent at this meeting.

Janovich’s familiarity with the warning system

and his intent not to enforce gambling laws to the detri-

ment of enterprise operations were apparent in taped

conversations. The evidence showed he was a member

of the conspiracy to obstruct state gambling laws, as

40a

Appendix A

Opinion of United States Court of Appeals

opposed to merely knowing and associating with the

co-conspirators. See United States v. Crockett, 514

F.2d 64, 75 (5th Cir. 1975). His dealings with the agent

did not form a separate conspiracy, but were acts in

furtherance of a continuing conspiracy by inducing

the “buyer” to become a new participant.

The government contends that John Carbone’s

role in the gambling protection conspiracy is confirmed

by his relationship with Williams, his experience in

providing protection, and his frequent solicitations for

money for the sheriff's office to promote his “program.”

Carbone told Weinstein that his business required

that he give large amounts of money to politicians

with the tacit understanding that help would be avail-

able. He bragged of his experience in arranging pro-

tection, insulating himself by dealing two or three

people away.

Carbone regularly held meetings at his attorney’s

offices attended by Williams, Janovich and two of the

sheriffs ranking subordinates. He told Weinstein

the sheriff had removed a detective from active duty

because he was “nosing around” too much. He fre-

quently pressured his attorney for contributions to

maintain his “program” with the sheriff's office.

The evidence was sufficient to show Carbone’s

connection to the conspiracy.

MAIL FRAUD

Counts 15 through 17 involve the October 1977

arson at an enterprise tavern, the Black Knight, and

an alleged scheme to defraud insurance companies

—

4la

Appendix A

Opinion of United States Court of Appeals

necessitating use of the mails.2® John and Joe Carbone

and Caliguri were convicted under these counts. All

challenge the sufficiency of the evidence.

The essential elements of mail fraud are a scheme

to defraud and knowing use of the mails to execute

that scheme. Pereira v. United States, 347 U.S. 1, 8

(1954); United States v. Beecroft, 608 F.2d 753 (9th Cir.

1979).

No one asserts that a plan to deliberately set a

business on fire to obtain insurance proceeds would

not constitute a scheme to defraud. Nor is it argued

that mailing of the proceeds was insufficiently related

to the scheme to defraud.

Appellants do challenge the sufficiency of the

evidence to establish their participation in or knowledge

of the mail fraud scheme. Appellants’ intent can be

inferred from their statements and conduct, United

States v. Beecroft, 608 F.2d at 757, and from their

knowledge that the scheme operated in a deceitful

manner. United States v. Piepgrass, 425 F.2d 194,

199 (9th Cir. 1970).

2918 U.S.C. § 1341 provides:

Whoever, having devised or intending to devise any scheme

or artifice to defraud, or for obtaining money or property

by means of false or fraudulent pretenses, representations,

or promises, or to sell, dispose of, loan, exchange, alter, give

away, distribute, supply, or furnish or procure for unlawful use

any counterfeit or spurious coin, obligation, security, or

other article, or anything represented to be or intimated or

held out to be such counterfeit or spurious article, for the

purpose of executing such scheme or artifice or attempting

so to do, places in any post office or authorized depository

for mail matter, any matter or thing whatever to be sent or

delivered by the Postal Service, or takes or receives therefrom,

any such matter or thing, or knowingly causes to be delivered

by mail according to the direction thereon, or at the place

at which it is directed to be delivered by the person to whom

it is addressed, any such matter or thing, shall be fined not

more than $1,000 or imprisoned not more than five years, or

both.

42a

Appendix A

Opinion of United States Court of Appeals

There was evidence that John Carbone, not his

son Richard, was the actual owner of the Black Knight.

Williams borrowed money for the initial purchase

in 1974. Thereafter John Carbone obtained a loan using

the proceeds to pay Williams. Although Richard co-

signed the note, John was the sole signatory on renewals.

The Black Knight was located in the Pierce County

town of Puyallup and was its only topless dancing

establishment. It shared topless dancers with Joe

Carbone’s topless clubs. Indeed, Joe often gave advice

to the manager.

In June 1977, insurance on the tavern’s contents

was increased from $35,000 to $65,000 purportedly

at Williams’ request, although the authenticity of

the signature is questioned. The government introduced

evidence that business at the Black Knight was slack.

Joe Carbone was planning to open a new topless tavern

in Puyallup in the fall of 1977.

One of Joe Carbone’s dancers testified that she

overheard a conversation between Joe and Caliguri

two weeks before the fire in which Joe stated that busi-

ness was bad at the Black Knight and asked Caliguri

to “take care of it.” Three days before the fire, the

tavern received a notice of violation for lewdness which

could have required a temporary closure.

The tavern was destroyed by fire on October 30, 1977.

Fire investigators eliminated all possible accidental

causes. One week later Joe Carbone opened his new

topless tavern in Puyallup.

Richard Carbone, the nominal owner of the Black

Knight, took little interest in the fire or its aftermath.

By contrast, John Carbone asked the insurance adjuster

for fast action on the claim. Williams made several

calls to the insurance company “for John.” The pro-

ceeds, totalling $33,000, were used to pay John’s note

for the purchase.

43a

Appendix A

Opinion of United States Court of Appeals

There was sufficient proof of John Carbone’s

financial interest in the tavern and the insurance pro-

ceeds. There was evidence to support the government’s

theory that Joe ordered the arson, motivated by the

tavern’s poor business and his plans to open a new

topless tavern nearby. Evidence of motive and oppor-

tunity was abundant. The method chosen corresponded

to prior “torchings” of enterprise businesses.

Contrary to his assertions, Caliguri was not a

“neutral relation” of the principal actors. As prior

manager of enterprise taverns, he was aware of insur-

ance coverage for fire loss. John Carbone told Weinstein

the Black Knight fire was done by a professional.

There was evidence Caliguri was one of two men involved

in the February 1978 arson of competitor Night Moves.

While acting as an assistant for the Night Moves

bomber, he stated that he had prior experience in

destroying businesses.

This evidence and testimony that he was ordered

to do something about the Black Knight less than two

weeks before its destruction, support his conviction

as an aider and abettor. The prosecution theorized

Caliguri was aware of a high probability of fraud.

He could not deliberately close his eyes to avoid learning

the truth. See United States v. McDonald, 576 F.2d 1350,

1358 (9th Cir.), cert. denied, 439 U.S. 830 (1978). The

evidence supports this conviction.

CONCLUSION

Appellants, jointly and singly, raise additional

objections. We have carefully received the record and

find no merit to their contentions.

Appellants strenuously object to the district court’s

denial of their severance motions. Fed.R.Cr. Pro 14.

Assuming they properly preserved their objections

44a

Appendix A

Opinion of United States Court of Appeals

by renewing the motions at the close of all the evidence,

see United States v. Kaplan, 554 F.2d 958, 965 (9th

Cir.), cert. denied, 434 U.S. 956 (1977), we find no abuse

of discretion in refusing to sever the trials.°°

Janovich asserts that the trial judge engaged in

improper prosecutorial conduct when he questioned

a witness. He cites but one incident occupying five

pages of a transcript exceeding 8,000 pages.

The court may examine a witness to clarify testi-

mony if it avoids the appearance of partiality. United

States v. Allsup, 566 F.2d 68, 72 (9th Cir. 1977). The

challenged colloquy was well within the bounds of

proper questioning. Janovich’s objections to the grand

jury proceedings are similarly without merit.

Williams’ argument against forfeiture of his

interest in Mr. Lucky’s tavern pursuant to 18 U.S.C.

§ 1963(a), is merely derivative. It fails because his

RICO conviction is affirmed.

“Spillover and inability to compartmentalize are the primary

objections of Zemek, Janovich, Joe Carbone and Caliguri. We

assume the jury follows limiting instructions to compartmentalize

the evidence as to each defendant. United States v. Escalante,

F.2d (9th Cir., No. 78-2794, April 29, 1980). Such instruc-

tions were given during trial and before deliberations. There is no

indication the jury was unable to appraise the evidence against each

defendant in accord with the court’s admonitions and instructions.

See United States v. Campanale, 518 F.2d 352 (9th Cir. 1975), cert.

denied, 423 U.S. 1050 (1976). Of the eight persons jointly tried, one

(Levage) was acquitted.

Although the quantum of evidence as to certain defendants

may have been greater than that as to others, such a disparity

has been considered significant only when conspiracy charges

were dismissed during trial. See United States v. Polizzi, 500 F.2d

856, 902, n. 11 (9th Cir. 1974), cert. denied, 419 U.S. 1120 (1975).

45a

Appendix A

Opinion of United States Court of Appeals

Caliguri objects to discretionary evidentiary

rulings and asserts that prejudicial outbursts from

prosecution witnesses necessitated a mistrial. This

was a protracted trial involving numerous charges,

- defendants and lawyers. Nonetheless, the record is

remarkably free of even harmless error, let alone

prejudicial error. The judge gave appropriate limiting

instructions. Any error was harmless.

The district court judgment is affirmed. The man-

date will issue at once. Release on bail as to any defend-

ant is revoked now.

46a

Appendix B

Constitutional and Statutory Provisions

Involved in the Case

CONSTITUTION OF THE UNITED STATES

AMENDMENT FIVE

(in pertinent part)

No person shall be .. . deprived of life, liberty or property,

without due process of law.

STATUTORY PROVISIONS

18 U.S.C. § 1962 (c) and (d)

(c) 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 cr indirectly, in the

conduct of such enterprise’s affairs through a pattern

of racketeering activity ...

(d) It shall be unlawful for any person to conspire

to violate any of the provisions of subsections (a), (b),

or (c) of this section.

Federal Rules of Criminal Procedure, Rule 14

(in pertinent part)

If it appears that a defendant or the government

is prejudiced by a joinder of offenses or of defendants

in an indictment or information or by such joinder for

trial together, the court may order an election or separate

trials of counts, grant a severance of defendants or

provide whatever other relief justice requires.

28 U.S.C. § 1254(1)

Court of appeals; certiorari; appeal; certified questions

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon a petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree;