Petition — Mazzuca v. United States
Supreme Court brief1981
Ask Donna
What actually matters in this document.
Text
es
Office -Supreme age U.S.
Pit
0- :
. ahha MAR 6 1981
NO ‘ALEXANDER L. STEVAS,
aoe __CLERK
I'l THM
SUPREIL COURT OF THE UNITED STATES
OCTOBER TERM 1939
FRANK JULIUS MAZZUCA
Petitioner
vs.
INITED STATES OF AMERICA
Respondent
PETITION FOR URIT OF CERTIORARI TO THI
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
Robert S. Bryan
Of Lanning & Bryan
231 Lyon Building
“ Seattle, WA, 93104
Telephone:
(206) 623-4315
QUESTIONS PRESENTED FOR REVIFW
1. Does the "enterprise" element of the
RICO statutes (18 USC § 1961-1963) encompass
illegitimate organizations which engage in a
pattern of racketeering activity or does that
element instead describe legitimate organizations
which are the victims of those who engage in a
pattern of racketeering, activity?
PARTIES TO THE PROCEEDING BELOW
The appeals of the following persons were
adjudicated in the decision of the United
States Court of Appeals for the Ninth Circuit
of which review is sought herein:
1. John Joseph Carbone
2 Joseph M, Carbone
3. Ronald John Williams
4 Frank Julius lMazzuca
George V. Janovich
6. Richard Francis Caliguri
“S
Lamont Arnold Zemek.
INDEX
PAGE
QUESTIONS PRESENTED FOR REVIEW ------- i
PARTIES TO THE PROCEEDING BELOW ------ i
INDEX -----------------------.-.-.----.- ii
List OF AUTHOBTTIVG CITED -~----00---~- iii iv
PETITION FOR WRIT OF CERTIORARI ------ 1
I. OPINION BLLOU -----.......2---..-- 1
El. JURISDICTION -------~-.-<--ceeue- 1
Rit. STaTurrs THVOLVED -~----~----+-<- 2
IV, STATEMENT OF THE CASE ----------- 2
V, REASONS FOR GRANTING THE WRIT ---- 16
VI. CONCLUSION -------.---........... 24,
APPENDICES
Court of Appeals Opinion herein -- A
Judgment and Commitment ---------- B
Order Denying Rehearing ---------- C
18 USC § 1961 -------------------- D
138 USC 8 1962 -------------------- r
Jury Note ------------------------ F
Court's Response to Jury Note ---- G
General Verdict ------------------ H
site
LIST OF AUTHORITIES CITED
TABLE OF CASES
Chapman v. California, 386 U.S. 138,
ce S7 §.Ct.524, 378 (1967) --------
U.S.
v. Aleman,
U.
1979) (Swygert,
cert.den.,
(1939) --
T1345
S. v. Altese,
an Graafiland, J.,
dissenting), cert.den., 429 U.S.
1039 (1977)
609 F.2d 298 (7th Cir.
J., dissenting),
445 U.S. 946, 100 S.Ct.
542 F.2d 194 (2nd Cir.
U.S..v. Anderson, 626 F.2d 1355 (8th
Cir. 1939), cert.den,, “No.89-766
(2/23/81) --------------------------
U.S. v. Carbone, et al, No. 79-1559
(9th Cir. 19/6/59) ------------------
U.S. v. Carman, 577 F.2d 556, 563
We 2 ee ne
U.S, We Baeecoee, 371i Fic G39 Cth Cir.
197s); cert.den., 439 U.S. 953, 99
hn ere een
U.S. v. Moeller, 402 F.Supp.49,
2d6-6L (D.Conn.1975) ----------------
U.S. v. Provenzano, 629 F.2d 985
(3rd Cir. 1930) ---------------------
—o. V, Rone,
L979),
598 F.2d 564 (9th Cir.
cert.den., 445 U.S. 946,
199 Se i 1345 71980) Se we ee eee ee
2. v. Sutton,
ingse
695 F.2d 260 (6th Cir.
J., dissenting)
‘an bihon withdraw for rehearing
en banc,
1989)
-iii-
LIST OF AUTHORITIES CITED (cont'd)
PAGE
U.S. v. Turkette, _ oa 16, 20,
Nos. 79-1545 and 1546 (lst Cir. 4 Te > 2
1980), cert.granted, No.80-808(1981) 24
U.S. v. Whitehead, 6183 F.2d nag
opinion rendered in footnote
at 525 (4th Cir.1980) ------------- 19
STATUTES CITED
18 USC § 1511\ ------------------------ 3
18 USC 8 1955 and 2 ---e---eee--------
18 USC §$ 1961 ------------------------ 2
18 USC 8 1961(1) --------------------- 6, 17
13 USC 8 1961(4) --------------------- 23, 26
18 USC $ 196105) --------------------- 6
18 USC § 1962 ------------------------ 2
13 USC 8 1962(c) --------------------- a Bsa
138 USC 8 1962(d) -------------------- 2,6,19
21
18 USC § 1254(1)---------------------- 1
-iv-
PETITION FOR WRIT OF CERTIORARI
The petitioner respectfully prays that a
writ of certiorari issue to review the Opinion
and Judgment of the United States Court of
Appeals for the Ninth Circuit, filed on
October Ff, 1959,
I, OPINION BELOW
The opinion of the Court of Appeals, not
yet reported, is contained in Appendix A. No
opinion was rendered by the District Court for
the Western District of Washington. The Judg-
ment and Commitment of the District Court,
contained in Appendix B, was filed July 17, 1979.
II. JURISDICTION
The opinion of the United States Court of
Appeals for the Ninth Circuit was filed and
entered on October 6, 1989. Petitioner time-
ly petitioned for rehearing and that petition
was denied on Januarv 7, 1931. The order of
denial is submitted as Appendix C.
Jurisdiction of this Court is invoked
under Title 28, U.S.C. 8 12754(1)
III. STATUTES INVOLVED
The question presented involves inter-
pretation of 18 USC 88 1961 and 1962 in ge-
neral, and 18 USC 88 1961(4) and 1962(c)
and (d) in particular. The text of these
statutes is submitted as Appendices D and E.
IV. STATEMENT OF THE CASE
Petitioner Mazzuca was one of fifteen
defendants charged in a seventeen count super-
ceding indictment. lIlis trial, along with
seven of his codefendants, lasted three months
and took place in San Francisco by virtue of
a change of venue granted due to extensive
publicity.
Mazzuca was charged, along with combi-
nations of others, in four of the seventeen
counts as follows:
Count I - violation of 13 USC 8 1962(d),
the RICO conspiracy statute;
Count IX - violation of 18 USC 8 1955
and 2, conducting an illegal
pot linit poker business;
'
ro
i
Count X - violation of 18 USC § 1955
and 2 conducting an illegal
blackjack business; and
Count “I - violation of 18 USC 8 1511,
conspiracy to obstruct en-
forcement of state law with
intent to facilitate illegal
gambling businesses (the poker
and blackjack business alleged
in counts IX and X).
(CR 317)*
*"CR is a reference to the Clerk's Record,
Western District of Washington. ''CR,Cal."
is a reference to the Clerk's Record, “Northern
District of California. "RT" is a reference
to the Reporter's Transcript, and "Ex" is a
reference to exhibits.
All defendants were charged in count I. De-
fendants other than Mazzuca, in varying com-
binations, were charged in the balance of the
indictment with one substantive RICO offense
and various other substantive offenses which
comprise crimes upon which RICO culpability
is predicated.
Petitioner was found guilty of all four
counts upon which he was tried, resulting in
a sentence totalling fifteen vears imprison-
ment, $39,990 in fines and substantial costs.
(Appendix B)
The count I RICO conspiracy charge domi-
nated the proceedings. It alleged, either
directly or through incorporation by reference,
all of the other sixteen counts plus a great
deal more. Twenty-nine acts of racketeering
were alleged. Of those, this petitioner was
alleged to have been involved in the following
four:
1. Arson of the Plavers Tavern on 12/18/72;
2, Conducting an illegal pot limit poker
business between about 5/23/78 and
= a
7/1/73, as charged in count IY;
3. Conducting an illegal blackjack busi-
ness on 38/16/78, as charged in count
x; and
4. Conspiring to obstruct enforcement of
state law vith intent to facilitate
the pot linit poker and blackjack busi-
nesses listed in 2? and 3 above, as
charged in count 7%
One hundred-seven overt acts were alleged;
of those, petitioner was alleged to have parti-
cipated in the following six:
l. Players Tavern Arson of 12/13/72;
2. Assault on Red Roof Tavern manager
(Bruce Michael) of 11/73;
53. Solicitation to snoke bomb Luigi “%
Boris’ Italian Restaurant on 4/27/78;
8. Directing, an undercover agent to a
pot limit poker game on 6/14/75;
71. Receiving a tally of preceding night's
pot linit game on 6/17/78; and
73. Of€ering to sell Mr. Luckv's Tavern
together with pot limit poker panes
on 6/20/78.
Count I was the mold in which the joint
trial of multiple defendants for multiple re-
lated and unrelated crimes was cast. The
catalyst appears in the first two paragraphs
of count I wherein it is alleged that: (1)
the defendants conspired to participate in
the affairs of an enterprise through a pattern
of racketeering activity; and (2) the enter-
prise was
... a group of individuals associated in
fact, although not 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... (through criminal
acts involving violence and gambling which
comprise specified racketeering activity).
(CR 317, p.2)
138 USC 88 1962(c), (d) and 1961(1) and (5)
require one who is employed by or associated
with an enterprise engaged in interstate
commerce to conspire to conduct or participate
in the affairs of that enterprise through the
commission of at least two specifically listed
state or federal crimes, and those specifi-
cally listed crimes are collectivelv labeled
racketeering activity.
racketeering to
which the indictment Limited petitioner's role,
the jury convicted him of the three with which
he was charged in subsequent counts: conductin
a pot limit poker business (count IX), con-
ack business (count
to obstruct state law en-
sak, Bet fy mee ae
rorcement to facilitate conduct of the first
arson of the Plavers Tavern was a state crin
and thus not charged in a separate count, it
: ’ - 1 ? ? ? sot 1 > +
1S not Known trnether ne Was deemed sullty of
the general verdict, juror confusion and
the nature of the pertinent instructions, it
whether the jury deemed petitioner to have
committed any of these acts of racketeering
in furtherance of the allesed conspiratorial
enterprise's purpose.
The jury expressed confusion regarding
the nature and purpose of the “enterprise con-
spiracy" alleged and was given conflicting
instructions thereon. In its initial in-
structions, the District Court advised the
jury that "the alleged group of co-conspira-
tors termed the enterprise... means persons
who form an association by virtue of their
concerted criminal activities...; and that
the purpose of the enterprise was "to control
ard attempt to control the tavern business in
and around Pierce County, Washington, by making
and retaining profits via... (enumerated
criminal acts)."" (CR,Cal.1387, Instruction
Nos. 23, paragraph 2, and 26, paragraph 1).
The language used bv the court was copied from
the indictment, a copy of which was given to
the jury along with the instructions, (RT
9956, 9132, 9149) Thereafter, during deli-
berations, the jury wrote the court indicating,
inter alia, that it was experiencing contro-
versy over the "essential nature" of the con-
spiratorial enterprise's unlawful plan. In
the second paragraph of the jury inquiry the
foreman wrote:
* * * Could you define "essential nature"
in this case for us, or must we decide
this for ourselves - e.g., if the "essen-
tial nature" specifically means control of
the tavern business in Pierce County, then
certain conclusions might or might not be
drawn. (Emphasis by the foreman)
That part of the court's response pertinent
here was:
* * * It is up to the jury to determine
the essential nature of the plan, bearing
in mind the charges in the Indictment,
the evidence, and the instructions of the
Court.*
*CR,Cal.187 - there is no docket number assigned
the communications to or from the jury or the
related docket entries, so they are herein
cited by date and time as: Juror Note, 6/15/79
4 3:00 PM, The note itself was mis-dated by
the jury as "17 Feb. 1979,."" The court's res-
ponsive note is dated 6/16/79 9 10:15 AM,
Both items are attached at Appendices F and
G respectively. The general verdict is
attached at Appendix H.
Thus as a matter of law the court ini-
tially instructed, as the government had
alleged, that the three principal elements
of the 18 USC 8 1962(d) offense denominated
"enterprise", "conspiracy" and "pattern of
racketeering activity" were identical - that
the essential nature of the conspiracy was
that it was an enterprise which was a group
of people who were associated by virtue of
any crimes they had committed for the purpose
of controlling the tavern business by making
and retaining profits. It further followed
in the court's instructions that all criminal
activity alleged was enterprise activity as
a matter of law if the jury should find the
mere fact of its commission. After the jury
expressed difficulty in applying this formula,
the court literally reversed its field and told
the jury that it was up to it to determine
what the essential nature and purpose of the
enterprise was as a question of fact.
The Circuit Court's opinion did not deal
with the problems raised by petitioner over
™ Fm
the jury inquiry and response, Brief of
Appellant Mazzuca, pp.57, A-42-43; and Reply
Brief of Appellant Mazzuca pp.14-15, 18-21.
From the jury note it plainly appears that
the juror controversy arose over the variance
problem inherent in the formula that all racke-
teering activity alleged defines the scope of
the enterprise and thus the conspiracy. To
provide a contextual perspective, some back-
ground peripheral to the primarily procedural
history required by the question presented
seems necessary at this point. One of the
biggest and most time consuming aspects of
the trial involved a legal and factual con-
test over whether the vicious extortion of
a man named Weinstein by co-defendant John
Carbone had anything at all to do with the
alleged enterprise conspiracy to control the
tavern business. The record reflects that
the only direct evidence of the purpose of
this extortion was to exact money and suffer-
ing because of alongstanding unrelated per-
sonal grudge borne by John Carbone and his
pm, te
wholly inaccurate suspicion that the victim
had given personal income tax information to
authorities, The government's position,
adopted by the Circuit Court on pp. l3a-l5a,
Appendix A, was that it was fair to infer
that an IRS investigation of Carbone could
lead to the uncovering of hidden tavern inter-
ests, The defense maintained that the record
was devoid of any basis upon which to support
such a link and that the government had direct-
ly and patently proved the crime to be unre-
lated to the tavern control enterprise, The
significance of the Weinstein matters to jury
deliberations is apparent because they occur
in seven of the seventeen counts alleged, com-
prise six of the acts of racketeering and
command twenty-nine of the overt acts alleged
in count 1, Another equally obvious variance
dispute which directly involved petitioner,
but which the Circuit Court did not address,
arose over an assault on one Bruce Michael,
manager of the Red Roof Tavern, who testified
to the wholly unrelated nature of the crime.
at %.
In significant contrast, many of the other
crimes proved which went to the jury were
clearly related to controlling and profiting
from taverns. It was in this context that
the jury groped to apply the court's instruct-
ions defining the nature and purpose of the
enterprise alleged. The opinion, however,
gives the jurv inquiry and instruction sub-
ject new significance because the Ninth Circuit
made the factual finding at page 10a that the
record would justify petitioner's conviction
for RICO conspiracy whether or not the 198 USC
§ 1961(4) elenent of "enterprise" was mis-
alleged, nis-defined and mis-tried.
Before the Winth Circuit Court of Appeals
this petitioner raised the question here pre-
sented in a format which emphasised the Wein-
stein matters out of hope that its presentation
in a context which differed from that used
by his co-appellants night aid in dramatizing
unjustifiable prejudicial irrelevance and
variance. The issue was discussed in the
Brief of Appellant Mazzuca at pp.39-57 and
-13-
in the Reply Brief of Appellant Mazzuca at
pp.12-21 in a context which attempted to
illustrate that the admission of evidence
such as that against this appellant was and
is so foreign to all non-RICO conspiracy law
that it is unmanagable as well as patent error
to define "enterprise" as any group associated
for what boils down to the general purpose of
committing crime regardless of any more spe-
cific and limiting allegations of its nature
and purpose and regardless of the obvious
language of the statute. The District Court
had not based its evidentiarv rulings on the
factual conclusion that the Ninth Circuit did
by inferring a speculative link between a
non-existant IRS informer and enterprise fear
of discovery. The District Court ruling was
predicated on the Fifth Circuit idea that the
statutory element of enterprise could not be
applied unless it was defined as a novel super
conspiracy which displaces law otherwise
applicable to conspiracies. See trial court
7 oe
comment at RT 6639 and U.S. v. Elliott, 571
F.2d 880 (5th Cir.1978), cert. den., 439 U.S.
953, 99 S.Ct. 349 (1978).
In the Ninth Circuit Court of Appeals the
government's successful response to the "enter-
prise" definition problem was that the Circuit
Court in U.S. v. Rone, 598 F.2d 564 (9th Cir.
1979), cert. den., 445 U.S. 946, 1090 S.Ct.
1345 (1980), had, after the trial herein,
committed itself to the Elliott, supra, po-
sition that the term "enterprise'’ encompassed
any illegal combination the purpose of which
was to profit from crime in general, therebv
eliminating any questions of variance, rele-
vance or integrity of the indictment and jury
instructions. The government, as noted, was
likewise successful with its alternative res-
ponse that the facts showed the alleged enter-
prise conspiracy not to be wholly illegitimate
and; therefore, that adoption of the construct-
ion for which the defense contended would
make no difference. That factual issue was
tt.
neither alleged nor tried to the jury. The
definition urged by the defense was not merely
a matter of whether wholly illegitimate enter-
prises are excluded from RICO culpability,
but whether an "enterprise" was intended by
Congress to be that distinct element of a
RICO offense which describes the requisite
victim as opposed to the racketeers who prey
upon that victin,
Petitioner submits that this Statement of
the Case is fairly summarized bv reciting the
procedural fact that he was tried and con-
victed on an indictment which failed to allege
a crime,
V. REASONS TOR GRANTING THE WRIT
THE CIRCUIT COURTS OF APPEALS ARE IW
CONFLICT OVER WHETHER THE 18 USC 8 1961(4)
TERM "ENTERPRISE" DESCRIBES ILLEGITIMATE
AS WELL AS LEGITIMATE BUSINESSES.
Petitioner believes that this Court con-
sented to resolve the conflict presented when
it granted certiorari to the First Circuit
Court of Appeals in U.S. v. Turkette, No.89-398,
on January 26, 1981. ‘while petitioner's counsel
has not seen the petition therein granted, his
aite
reading of the First Circuit opinion, F.2d
(Nos. 79-1545 and 1546 decided 9/23/80), leads
to this belief because that court held an in-
dictment like that upon which Mr. Mazzuca was
tried to be invalid based upon the conclusion
that:
We think that the courts’ natural anti-
pathy to organized crime has clouded their
perception of RICO, its purpose, and legis-
lative history. What seems to be over-
looked is that persons who participate in
an illegitimate enterprise will not es-
cape punisiument for their criminal acti-
vities if they are properly indicted and
tried for these acts. [Each act of racket-
eering delineated in section 1961(1), as
well as conspiracy to commit such crimes,
are already criminal acts under federal
or state statutes, or both. We need not
distort a statute in order to property
prosecute criminals, RICO was not en-
acted as an offensive weapong against cri-
minals but as a shield to thwart their
depredations against legitimate business
enterprises.
(Page 19 of the slip opinion)
That opinion contains a more effective
statement of why certiorari should be granted
in Petitioner Mazzuca's case than he might
hope to offer here. The only ingredient missing
from the First Circuit's history of this sub-
stantial conflict is the opinion in U.S. v.
Anderson, 626 F.2d 1353 (8th Cir.1930), cert.
-l7-
den., No. 39-766 (2/23/81), which brings the
Eighth Circuit in line with the First and
Sixth Circuits. U.S. v. Sutton, 605 F.2d 269
(6th Cir.1979) (Engle, J. dissenting) (opinion
withdrawn for rehearing en banc, 1989).
Only the Tenth Circuit has yet to discuss
the issue presented.
As in Petitioner Mazzuca's case, U.S. v.
Carbone, et al, No. 79-1550 (9th Cir. 10/6/80),
a panel decision following the panel dectsion
in U.S. v. Rone, 598 F.2d 564 (9th Cir.1979)
(Ely, J. dissenting), cert. den., 445 U.S. 946,
100 S.Ct. 1345 (19389), the Second and Seventh
Circuits have, by single panel decisions
accompanied by vigorous dissents, adopted the
position that the RICO term "enterprise" des-
cribes wholly illegitimate criminal operations
as well as, and sometimes rather than, the
business entities they victimize; U.S. v. Altese,
542 F.2d 104 (2nd Cir.1976) (Van Graafiland,
J. dissenting), cert. den., 429 U.S. 1939
(1977), implicitly overruling U.S. v. Moeller,
402 F.Supp.49, 58-61 (D. Conn. 1975); U.S. v.
Aleman, 609 F.2d 298 (7th Cir.1979) (Swygert,
cite
J. dissenting), cert. den., 445 U.S. 946, 190
S.Ct. 1345 (1980). The Third, Fourth and
Fifth Circuits, again bv panel decisions only,
have unanimously adopted this position. U.S.
v. Provenzano, 620 F.2d 985 (3rd Cir.1980) ;
U.S. v. Whitehead, 618 F.2d 525, opinion
rendered in footnote 1 at 525 (4th Cir.1989);
U.S. v. Elliott, 571 F.2d 880 (5th Cir.1978),
cert. den., 439 U.S. 953, 99 S.Ct. 349 (1978).
In the opinion below in Mr, Mazzuca's case,
the Ninth Circuit said, at footnote 10 of the
slip opinion, that the District of Columbia
Circuit had also adopted the view that both
legitimate and wholly illegitimate businesses
fall within the concept of "enterprise". How-
ever, that case dealt with the perversion of
a legitimate restaurant business by narcotics
dealers who used it as an illegal drug store
as well, and the defendant in that case was
employed by or associated with the otherwise
legitimate restaurant enterprise. While that
court did offer brief favorable comment on the
view that "enterprise" could include any group,
-19-
legal or illegal, which might be alleged, the
case did not present the issue. Though the
opinion does not recite the pertinent nature
of the indictment, it appears that the "enter-
prise" alleged was the restaurant. If so, that
case is not at odds with those who hold the
view that "enterprise" was intended to des-
cribe the criminals’ victim which Congress
sought to protect rather than the criminals
themselves,
Petitioner respectfullv suggests that the
issue he presents is particularly ripe for
review at this time as demonstrated by the
conflict apparent among, and in several cases
within, the Circuits. If the grant of cer-
tiorari in U.S. v. Turkette, “No. 80-808 is
for the purpose of resolving this conflict,
petitioner further suggests that he presents
a record which offers some additional acadenic
implications of benefit to a thorough reso-
lution of the dispute. It offers more than
merely a defense as well as a prosecution
petition.
=).
The case objectively demonstrates jury
confusion arising from an awlward application
of the complex statute, The jurors received
instructions which, upon analysis, described
the essential nature of the "enterprise" by
the same criteria used not only to define the
"pattern of racketeering activity" but the
conspiracy itself. See U.S. v. Anderson, 626
F.2d 1358, first full paragraph of second
column at 1360 (8th Cir.1980), cert. den.,
No. 89-766 (2/23/81). This not only left the
jury with no identifiable basis to distinguish
between the substantive offense prohibited by
18 USC § 1962(c) and the conspiratorial offense
prohibited by 8 1962(d), Ibid., but left it
with no identifiable basis upon which to de-
termine or justify a factual conclusion that
more than one separate conspiracy, or more
than one enterprise for that matter, were
proved. See Turkette, supra, at p.27 of the
slip opinion. Only these reasons appear
available to explain the jurv's motivation for
the request that the court redefine the
essential nature and purpose of the enterprise.
The Court provided no further help but to tell
the jurors that it would be left to them, de-
monstrating, petitioner suggest, the unworka-
bility of the government's position,
This case also provides a rather dramatic
circumstance by which to examine appropriate
appellate disposition in the event that the
Turkette position is adopted by this Court.
In an apparent attempt to foreclose re-exanin-
ation of petitioner's case, the tlinth Circuit,
at pp.1%a-12a of Appendix A, found that even
if Mr. Mazzuca's position was adopted ample
evidence existed to negate his premise that
the enterprise in question was whollv ille-
gitimate. The panel thus implied that his
conviction should be affirmed in either event.
Petitioner suggests that such a view begs the
question because the factual recitation by
which the court justifies its view describes
at least one if not several "enterprises"
which bear no resemblance to the conspiracy
enterprise alleged in the indictment upon which
petitioner was tried. Petitioner had neither
the notice nor the opportunity to litigate
the many factual issues raised and decided
by the appellate court which include, for
example: single as opposed to multiple victin-
ized "enterprises"; single or multiple con-
spiracies in a significantly different context;
which, if any, of the gambling, tavern, restau-
rant, bail bond, and auto sales businesses
with which various and changing combinations
of defendants were associated at various times
were or were not ostensibly legal, as opposed
to wholly illegal; and, inter alia, whether
either Mr. Weinstein and his mortgage company
or the Red Roof Tavern manager suffered pro-
perly joined and relevant crimes. To deny
petitioner his notice and trial on these
issues is to deny him his right to a jurv
and his right to Due Process.
Criminal sanctions cannot rest on what
an appellate court thinks the jury would
have done had the issue put to it been
framed differently.
U.S. v. Carman, 577 F.2d 556, 565 (9th Cir.
1973). Such error cannot be held harmless
vtt'te
beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 24, 87 S.Ct. 824,
828 (1967).
If this Court should adopt the Turkette
construction of the RICO statutes which pe-
titioner urges, it is suggested that it will
thereby render count I of the indictment in-
valid and subject to dismissal. Otherwise
petitioner will stand convicted of a non-
existant crime.
VI. CONCLUSION
A writ of certiorari should issue to re-
view the Judgment and Opinion of the United
States Court of Appeals for the Ninth Circuit.
DATED thisf2" day of March, 1981.
Respectfully submitted,
LANHING & BRYAN
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 remodeled 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 detzils.
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. § 2511(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)
Ta
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 (3d 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.
5The 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.
8John Carbone and Williams 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.
718 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)
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. 18 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
or 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, 892-95 \. 80):
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
purpose, 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 was 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 dependent
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.
16a
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. !?
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
'2In 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. !4
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.'4
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.
'4Carbone 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).
15Although 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 'J.S. 479 (1965). Absent
development of authority and some relatio:: 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 United 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.
’ “ce
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
17Caliguri 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 scme 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.'° We now
examine the other challenged counts. !9
HOBBS AC.’
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 «nd 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
Opinicn 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
v. 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
Opinior of United Siaies Court of Appeals
Cir. 1980) (inducing payments to avoid county business
tax).
Appellants expressiy 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
Appeliants’ 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 Juhn
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 a 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 of 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 evidence
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) 4 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(%) ), 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
2sCount 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.
24Such an argument would be unavailing in light of United
States v. Sacco, 491 F.2d 995 (9th Cir. 1974) (en banc).
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
(3d Cir. 1972).
Apparently 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.2° 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, 886-87
(6th Cir. 1974). Cf. United States v. Nettles, 570 F.2d 547, 550 (5th
Cir. 1978).
*6Mazzuca 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 Williams 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.
2418 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
su 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.
lb
APPENDIX B
JUDGMENT AND COMMITMENT
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
NO. CR78-97T(S)
UNITED STATES OF AMERICA,
Plaintiff,
vs.
FRANK JULIUS MA2ZUCA,
Defendant.
On this 13th day of July, 1979, came the
attorney for the Government and the defendant
appeared in person and with his counsel, Bill
Lanning.
IT IS ADJUDGED that the defendant upon
his plea of NOT GUILTY, and a jury verdict
of GUILTY, has been convicted of the offenses
of violation of Title 183, United States Code,
Section 1962(d) (COUNT I), Section 1955 and
Section 2 (COUNTS IX and X), and Section 151l
(COUNT XI), as charged in the Superseding In-
dictment returned on February 27, 1979, and
2b
APPENDIX B
JUDGMENT AND COMMITMENT il
the Court having asked the defendant whether
he has anything to say why judgment should
not be pronounced, and no sufficient cause to
the contrary being shown or appearing to the
Court,
IT IS ADJUDGED that the defendant is
guilty as charged and convicted.
IT IS ADJUDGED as to COUNT I that the
defendant is hereby committed to the custody
of the Attornev General or his authorized
representative for imprisonment for a period
of FIFTEEN (15) YEARS and fined the sum of
$25,000.00.
IT IS ADJUDGED as to COUNT IX that the
defendant is hereby committed to the custody
of the Attorney General or his authorized
representative for imprisonment for a period
of FIVE (5) YEARS and fined the sum of $2,900.90.
Said sentence on COUNT IX as to imprisonment
only to run concurrently with sentence on
COUNT I,
3b
APPENDIX B
JUDGMENT AND COMMITMENT
IT IS ADJUDGED as to COUNT X that the
defendant is hereby committed to the custody
of the Attorney General or his authorized
representative for imprisonment for a period
of FIVE (5) YEARS and fined the sum of $2,000.00.
Said sentence on COUNT X as to imprisonment
only to run concurrently with sentence on
COUNT I.
IT IS ADJUDGED as to COUNT XI that the
defendant is hereby committed to the custody
of the Attorney General or his authorized
representative for imprisonment for a period
of FIVE (5) YEARS and fined the sum of $1,000.09.
Said sentence on COUNT XI as to imprisonment
only to run concurrently with sentence on
COUNT I.
IT IS FURTHER ORDERED that costs of pro-
secution are assessed against the defendant.
The United States is ordered to file a bill
of costs within ten (10) days of this judg-
ment. The defendant will file any objections
4b
APPENDIX B
JUDGMENT AND COMMITMENT
to the bill of costs within ten (10) days
following the filing of the bill of costs
by the United States. Upon approval of any
cost bill by the Court the judgment will be
amended to reflect the costs ordered.
IT IS FURTHER ORDERED that the Indictment
in Cause No. CR78-97T, returned on December 3,
1978, is hereby dismissed upon the motion of
the United States Attorney.
IT IS ORDERED that the defendant will
remain free on bond of $190,009.99 pending
appeal.
IT IS ORDERED that the Clerk deliver a
certified copy of this judgment and cormmit-
ment to the United States Marshal or other
qualified officer and that the copy serve as
the commitment of the defendant.
DATED this 17th day of July, 1979.
MORELL E. SHARP
Poe Ee)
ISTRICT
=a
JUDGE
Presented by:
JOHN C,. MERKEL
United states Attorney
le
APPENDIX C
ORDER DENYING REHEARING
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No, 79-1550
UNITED STATES OF AMERICA,
Plaintiff/Appellee,
vs.
FRANK JULIUS MA2Z2UCA,
Defendant/Appellant,
Before: WRIGHT and SNEED, Circuit Judges.
Judges Wright and Sneed have voted to
reject the petition and suggestion for a
rehearing en banc,
The full court has been advised of the
suggestion for an en banc hearing, and no
judge of the court has requested a vote on
it. Fed. R. App. P. 35(b).
The petition and suggestion for a re-
hearing en banc is rejected,
ld
18 USC 8 1961 DEFINITIONS
As used in this chapter -
(1) "Racketeering activity" means (a)
any act or threat involving murder, kidnaping,
gambling, arson, robbery, bribery, extortion,
or dealing in narcotic or other dangerous
drugs, which is chargeable under State law
and punishable by imprisonment for more than
one year; (b) anv 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 ship-
ment) if the act indictable under section 659
is felonious, section 664 (relating to em-
bezzlement from pension and welfare funds),
sections 891-894 (relating to extortionate
credit transactions), section 1984 (relating
to the transmission of gambling information),
section 1341 (relating to mail fraud), section
1343 (relating to wire fraud), section 1503
2d
APPENDIX
18 USC § 1961 DEFINITIONS
(relating to obstruction of justice), section
1510 (relating to obstruction of criminal in-
vestigations), section 1511 (relating to the
obstruction of State or local law enforcement),
section 1951 (relating to interference with
commerce, robbery, or extortion), section 1952
(relating to racketeering), section 1953
(relating to interstate transportation of
wagering paraphernalia), section 1954 (re-
lating to unlawful welfare fund payments),
section 1955 (relating to the prohibition of
illegal gambling businesses), sections 2314
and 2315 (relating to interstate transport-
ation of stolen property), sections 2341-2346
(relating to trafficking in contraband cigar-
ettes), sections 2421-24 (relating to white
slave traffic), (c) anv act which is indict-
able under title 29, United States Code,
section 186 (29 USCS 8 1864) (dealing with re-
strictions on payments and loans to labor
organizations) or section 59l(c) (29 USCS
3d
APPENDIX D
18 USC § 1961 DEFINITIONS
8 50l(c)) (relating to embezzlement from union
funds) or (d) any offense involving bankruptcy
fraud, fraud in the sale of securities, or the
felonious manufacture, importation, receiving,
concealment, buying, selling, or otherwise
dealing in narcotic or other dangerous drugs,
punishable under any law of the United States;
(2) "State" means any State of the United
States, the District of Columbia, the Common-
wealth of Puerto Rico, any territory or possess-
ion of the United States. Anv political sub-
division, or any department, agency or in-
strumentality thereof;
" includes any individual or
(3) "person
entity capable of holding a legal or beneficial
interest in property;
(4) “enterprise" includes any individual,
partnership, corporation, association, or
other legal entity, and any union or group of
individuals associated in fact although not
a legal entity;
4d
APPENDIX D
18 USC 6 1961 DEFINITIONS
(5) “pattern of racketeering activity"
requires at least two acts of racketeering
activity, one of which occurred after the
effective date of this chapter and the last
of which occurred within ten years (excluding
any period of imprisonment) after the commission
of a prior act of racketeering activity;
(6) “unlawful debt" .. .;
(7) “racketeering investigator" ...;
(8) “racketeering investigation" .. .;
(9) “documentary material" .. .;
(10) “Attorney General" ....
le
APPENDIX E
18 USC 6 1962. PROHIBITED ACTIVITINS
(a) It shall be unlawful for any person
who has received any income derived, directly
or indirectly, from a pattern of racketeering
activity or through collection of an unlaw-
ful debt in which such person has participated
as a principal within the meaning of section ?,
title 18 United States Code, to use or invest,
directly or indirectly, any part of such in-
come, or the proceeds of such income, in
acquisition of any interest in, or the esta-
blishment or operation of, any enterprise
which is engaged in or the activities of which
affect, interstate or foreign commerce. A
purchase of securities on the open market for
purposes of investment, and without the in-
tention of controlling or participating in
the control of the issuer, or of assisting
another to do so, shall not be unlawful under
this subsection if the securities of the
issuer held by the purchaser, the members of
his immediate family, and his or their
2e
APPENDIX E
18 USC 8 1962. PROHIBITED ACTIVITIES
accomplices in any pattern of racketeering
activity or the collection of an unlawful
debt after such purchase do not amount in the
aggregate to one percent of the outstanding
securities of any one class, and do not con-
fer, either in law or in fact, the power to
elect one or more directors of the issuer.
(b) It shall be unlawful for any person
through a pattern of racketeering activity or
through collection of an unlawful debt to
acquire or maintain, directly or indirectly,
any interest in or control of any enterprise
which is engaged in, or the activities of
which affect, interstate or foreign commerce,
(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 enterp ise's affairs through
a pattern of racketeering activity or collection
of unlawful debt.
3e
APPENDIX E
18 USC 8 1962. PROHIBITED ACTIVITIES
(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.
lf
APPENDIX F
JURY NOTE
15 Feb. 1979
Your Honor
(1) The jury is having difficulty with
the second paragraph of Instruction No. 26,
One group interprets the first sentence
"Concerning the second element ..... enterprise,"
as meaning that each accused agreed to parti-
cipate in two specific acts (i.e., a pattern
of racketeering). The second group interprets
the same sentence as meaning that the accused
agreed to participate in the affairs of an
enterprise, and that the enterprise itself
need only be involved in two racketeering acts
regardless of whether the accused agreed to
participate in those acts or not,
(2) A second controversy concerns a con-
flict between the 3rd paragraph (beginning 1.18)
on the second page of Instruction No.25, and
the paragraph already referred to above in
Instruction No.26 (beginning on line 16). The
former uses the phrase "essential nature";
2f
APPENDIX F
JURY NOTE
the latter says nothing of that, Could you
define “essential nature" in this case for
us, or must we decide this for ourselves -
e.g., if the "essential nature" specifically
means control of the tavern business in Pierce
County, then certain conclusions might or
might not be drawn.
Manfred Lindner
Foreman
lg
APPENDIX G
COURT'S RESPONSE TO JURY NOT?
In answer to specific questions, such as
the two submitted by you, you must understand
that the Court's answers thereto have to be
read in the context of all of the instructions
as a whole, The jury should bear in mind that
undue emphasis may not be placed on any in-
struction.
In answer to your first question, each
of the accused must agree to participate,
directly or indirectly, in two or more spe-
cified acts of racketeering in furtherance
of the aims of the enterprise.
In answer to the alleged conflict between
the third paragraph on the second page of
Instruction No.25 and the second paragraph
of Instruction No.26, all of the definitions
and requirements in Instruction 'o.25, in-
cluding the requirement of "knowledge of the
essential nature of the plan," are applicable
to Instruction No.26.
2g
APPENDIX G
COURT'S RESPONSE TO JURY NOTE
To convict a defendant as a conspirator,
the Government is required to show only that
the defendant acted with full knowledge of
the general scope and purpose of the con-
spiracy. It is not necessarv for the de-
fendant to have had knowledge of the entire
plan of the conspiracy. It is up to the jury
to determine the essential nature of the plan,
bearing in mind the charges in the Indictment,
the evidence, and the instructions of the
Court.
Judge Sharp
June 16, 1979
10:15
lh
APPENDIX H
GENERAL VERDICT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
AT SAN FRANCISCO
NO. CR79-9068 MS
UNITED STATES OF AMERICA,
Plaintiff,
vs,
JOHN JOSEPH CARBONE, et al,
Defendants.
WE, THE JURY, find the defendant FRANK JULIUS
MAZZUCA
guilty as charged in Count I of the Indictment;
guilty as charged in Count IX of the Indictment;
guilty as charged in Count X of the Indictment;
guilty as charged in Count XI of the Indictment.
19 June 1979 MANFRED LINDNER
Foreperson
eS
NO
‘ IN THE
SUPREME COURT OF TI UNITED STATES
OCTOBER TERM 1980
FRANK JULIUS MAZZUCA
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent
CERTIFICATE OF SERVICE
ROBERT S. BRYAN, counsel for petitioner
and a member of the bar of this Court, certi-
fies that pursuant to Rule 28.3, .4 and .5(b)
he served the within Petition for Writ of
Certiorari to the Ninth Circuit Court of
Appeals on counsel for respondent by enclosing
three copies thereof in an envelope, postage
prepaid, first-class, addressed to:
The Honorable Wade H. McSree, Jr.
Solicitor General of the United States
Department of Justice
Washington, D.S. 20539
and depositing same in the United States
mails at Seattle, Washington, on March fet
1981, and further certifies that all parties
required to be served have been s ryed
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.