Petition — Scotto v. United States

&§ QO ~ ] 7 4 A wanes ea a U.S,

f

No. ' APR 1? 1981

RLEXANDER t STEVAS, |

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ANTHONY ANASTASIO, Petitioner,

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

MICHAEL E. TIGAR

Counsel of Record

JOHN MAGE

JOHN J. PRIVITERA

1302 18th Street, N.W.

Washington, D.C. 20036

(202) 785-8900

Counsel for Petitioner

Anthony Anastasio

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. Whether two defendants jointly charged as to

some offenses may, under Federal Rule of Criminal Pro-

cedure 8(b), permissibly be tried together when there are

numerous unrelated charges, requiring different proof,

that on other occasions one of the defendants committed

similar offenses.

2. Whether a violation of 29 U.S.C. §186(b)(1),

based upon the prohibitions of 29 U.S.C. §186(a)(1),

a malum prohibitum misdemeanor, is a predicate of-

fense for conspiracy to racketeer, 18 U.S.C. §1962(d), or

whether Congress intended only to make the 29 U.S.C.

$186 bribery-type offenses a predicate under 18 U.S.C.

§1961.*

* Note pursuant to Rule 2] (b): In the court below, Anthony M.

Scotto was a co-appellant with petitioner Anthony Anastasio.

iil

TABLE OF CONTENTS

PAGE

Opinion BGOW . oo 6. scsecctucssesseue eee 2

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statutes Involved .......00s0ssuh pean eRe ee eee 2

SOMEONE nooo ok ns se vive se 6 ee ace pe eee 2

Reasons For Granting The Writ ...............00e0 eee 4

COMCHABION 20 ccc scsnencucauene easel a 12

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Appendix Bw... .c cc cccnceresvusesee eae ae ete aeeennn 19a

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PRECEDING PAGE WAS BLANK

TABLE OF AUTHORITIES

CASES: PAGE

Chubet v. United States, 414 F.2d 1018 (8th Cir. 1969).. 6

Cupo v. United States, 359 F.2d 990 (D.C. Cir. 1966),

CUNT. GAME, SGo Ut TOTS CSG) 6 oc vc acecicceccn 5

Fay Y.. FOO. 27k Ws FPO CED ove svete wccsivencacse 10

Henry v. Mississippi, 379 U.S. 443 (1965).............. 10

Ingram v. United States, 272 F.2d 567 (4th Cir. 1959) .. 6

Johnson v. Zerbst, 304 U.S. 458 (1938) ...........05.8. 10

McElroy v. United States, 164 U.S. 76 (1896) .......... a

8

Schaffer v. United States, 362 U.S. 511 (1960) ......... 7

United States v. Bova, 493 F.2d 33 (Sth Cir. 1974)...... 6

United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969). 6

United States v. Gentile, 495 F.2d 626 (Sth Cir. 1974)... 7

United States vy. Gougis, 374 F.2d 758 (7th Cir. 1967)... 6

United States v. Graci, 504 F.2d 411 (3rd Cir. 1974) .... 6, 8

United States v. United States Gypsum Co., 438 U.S.

ME OE ek a os che ke pian sea os a8 eke sae ws 11

United States v. Kaplan, 588 F.2d 71 (4th Cir. 1978).... 5

United States v. King, 355 F.2d 700 (1st Cir. 1966) ..... 7

United States v. Marionneaux, 514 F.2d 1244 (Sth Cir.

SUS CAKES RFRA ERE dae See eae aes

United States v. Nettles, 570 F.2d 547 (Sth Cir. 1978) ... 6, 8

United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973),

cert. denied, 416 U.S. 988 (1974) ............00 00

United States v. Ryan, 350 U.S. 299 (1956) ............ 1]

United States v. Satterfield, 548 F.2d 1341 (9th Cir.

1977), cert. denied, 439 U.S. 840 (1978) ........... 6,

8

United States v. Seidel, 620 F.2d 1006 (4th Cir. 1980)... 6, 8

United States v. Spector, 326 F.2d 345 (7th Cir. 1963) .. 6

United States v. Sutton, 605 F.2d 260 (6th Cir. 1979) ... 5

Table of Authorities Continued

CASES: PAGE

United States v. Turkette, 632 F.2d 896, cert. granted,

49 U.S.L.W. 3531 (U.S. January 26, 1981) (No.

ES Serer eae rr =

United States v. Whitehead, 539 F.2d 1023 (4th Cir.

EPPO rer reer TT Teer Eee TT Te eer ee Teer ee 6

Ward v. United States, 289 F.2d 877 (D.C. Cir. 1961)... 6

STATUTES AND RULES:

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ee Eis a ooh chs SS RRR SR A aRK OS ARO OS 10, 11

ee a wh cS ed ek a ak ae wales 10, 11

RR OR aS i rn 1, 2

Federal Rule of Criminal Procedure 8................. 4

Federal Rule of Criminal Procedure 8(a) .............. 5

Federal Rule of Criminal Procedure 8(b)..... 5, 7, et passim

Federal Rule of Criminal Procedure 13................ 8

Federal Rule of Criminal Procedure 14................ Y

Revised Statutes § 1024........... 0. cc ccc ee ee ee eee 8

Vi

Table of Authorities Continued

MISCELLANEOUS: PAGE

115 Cong. Rec. 575-607, 819-56, 952-72, 35191-217,

35287-364, 36280-93, 36294-96 (Jan. 21-23, Oct. 6-7,

SE ass oA oka a dee Weed Gee eee ek ee 11

Re I, I Se oie cc ent cencncns0seeurhstannanne 1]

H.R. Rep. No. 91-1549, 91st Cong., Ist Sess. (1970).... 11

8 Moore’s Federal Practice § 8.06[2]..............005. 9

S. Rep. No. 187, 86th Cong., Ist Sess., (1959) ......... 10

S. Rep. No. 91-617, 91st Cong., Ist Sess. (1969)........ 11

I C. Wright, Federal Practice and Procedure § 144

SOEs cas 0-0 xan Seda ow ke eee a eae eee 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

ANTHONY ANASTASIO, Petitioner,

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner Anthony Anastasio prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit dated

September 2, 1980, which affirmed judgment of convic-

tion of the United States District Court for the Southern

District of New York on charges of violating 29 U.S.C.

§186(b)(1), 18 U.S.C. §1962(d), 26 U.S.C. §§7201 and

7206(1).

OPINION BELOW

The opinion of the court of appeals, not yet of-

ficially reported, is reprinted as Appendix A. The

opinion on the petition for rehearing and suggestion of

the appropriateness of a rehearing en banc, not yet of-

ficially reported, is reprinted as Appendix B.

JURISDICTION

The decision of the court of appeals was rendered

September 2, 1980. A timely petiton for rehearing and

suggestion of the appropriateness of a rehearing en banc

was denied on March 6, 1981. By its order of March 27,

1981, the court of appeals stayed issuance of its mandate

for thirty days pending application to this Court for a

writ of certiorari. This Court has jurisdiction under 28

U.S.C. §1254(1).

STATUTES INVOLVED

The relevant provisions of the racketeering statute

(RICO), 18 U.S.C. §1961, et seg., and of the Taft-

Hartley Act, 29 U.S.C. §186, are set forth in App. C.

infra, 21a.

STATEMENT

Petitioner Anthony Anastasio was charged in twenty

counts of a sixty-count indictment. He was convicted of

eleven Taft-Hartley Act misdemeanors, 29 U.S.C.

§186(b)(1), for receipt of money from an employer of

persons represented by the International Longshoreman’s

Association, of which he was an officer; a RICO con-

spiracy, 18 U.S.C. §1962(d); and two income tax viola-

tions, 26 U.S.C. §§7201 and 7206(1). He was sentenced

to two years incarceration, a fine of $5,000 and an addi-

tional five year probation on completion of the sentence

of incarceration.

The indictment on which Petitioner was tried con-

tained thirty-eight counts charging co-defendant Scotto,

alone, with similar offenses. The conspiracy count did

not embrace the offenses charged against Scotto alone.

The indictment can be represented schematically:

ANASTASIO AND SCOTTO

BoTH CHARGED IN COUNT

50 (Rico CONSPIRACY)

Scotto ALONE

CHARGED IN

CounT 1

(SUBSTANTIVE RICO)

[

Counts Thirty-Eight Counts Thirty-Five Counts Two

Through Forty-Nine Through Thirty- Through Fifteen

(Taft-Hartley misde- Seven (Taft-Hartley . (Taft-Hartley misde-

meanors; Seregos misdemeanors; meanors; Montella

testimony) — ONLY tapes) — Scotto testimony) — ONLY

ANASTASIO AND ANASTASIO SCOTTO

Counts Sixteen

Through Thirty-

Four (Taft-Hartley

misdemeanors;

O’Hearn testimony)

— ONLY Scotto

|

Anastasio Anastasio Scotto alone Scotto Alone

Alone Charged Alone Charged In Charged In

In Counts Charged in Counts Fifty- Counts Fifty-

Fifty-Seven Counts Fifty- Five And One To Fifty-

And Fifty-Eight Nine And Six- Fifty-Six (Tax) Four (Tax)

(Tax) ty (Tax)

4

There is no ‘‘umbrella’’ that covers all the counts;

thirty-eight counts charge crimes not within the scope of

the conspiracy alleged against Anastasio. Forty tapes

were played by the government, derived from wiretaps

and bugs. Anastasio was heard on five tapes, the rest

bore no relation to any charge against him. There were

three primary government witnesses, Montella (984 pages

of transcript), O’Hearn (971 pages) and Seregos (580

pages). The trial court acknowledged that there was ‘‘no

allegation’’ that Anastasio ‘‘participated’’ in the transac-

tions about which Montella and O’Hearn testified. Tr.

4298-99. Their testimony related to charges solely against

Scotto, charges not within the scope of the conspiracy

count. The Seregos payments to Anastasio were describ-

ed by the government as arising from a “‘totally different

set of facts’’ and constituting a ‘“‘whole separate set of

crimes’’. The government stated prior to trial that the

‘first thirty-three counts’’ of the indictment were ‘‘not

asserted against the defendant Anastasio’’ and ‘‘are no

part of the conspiracy charged in the indictment’’. Hear-

ing of August 23, 1979, Tr. 19 and 24.

REASONS FOR GRANTING THE WRIT

1. At issue is a novel definition of the proper

*‘unit’’ of prosecution requiring Petitioner to stand trial

with a codefendant separately charged with numerous

unrelated similar offenses. This interpretation of Federal

Rule of Criminal Procedure 8' is at substantial variance

' Federal Rule of Criminal Procedure 8 Provides:

(a) Joinder of Offenses. Two or more offenses may be

charged in the same indictment or information in a separate

count for each offense if the offenses charged, whether felonies

or misdemeanors or both, are of the same or similar character

or are based on the same act or transaction or two or more

acts or transactions connected together or constituting parts of

a common scheme or plan.

with that of all other courts of appeals. It conflicts,

outright, with a prior opinion of this Court, McElroy v.

United States, 164 U.S. 76 (1896); and with the

substance of a more recent opinion, Schaffer v. United

States, 362 U.S. 511 (1960).

The rules of severance and joinder determine the

“‘unit’’ of prosecution. Rule 8(a) permits, in a single

defendant trial, the joining of counts charging ‘‘similar’’

offenses. Rule 8(b) permits the joining of defendants,

but only if all counts charge offenses constituted by the

same act or transaction or the same series of acts or

transactions. Rule 8(b) prohibits joinder based solely

upon “‘similar character’’ of alleged offenses; it requires

a factual nexus connecting all the charges. All other

courts of appeals have held to this view:

When similar but unrelated offenses are jointly

charged to a single defendant, some prejudice

almost necessarily results, and the same is true when

several defendants are jointly charged with a single

offense or related offenses. Rule 8(a) permits the

first sort of prejudice and Rule 8(b) the second. But

the Rules do not permit cumulation of prejudice by

charging several defendants with similar but

unrelated offenses.

Cupo v. United States, 359 F.2d 990, 993 (D.C. Cir.

1966), cert. denied, 385 U.S. 1013 (1967).?

(b) Joinder of Defendants. Two or more defendants may be

charged in the same indictment or information if they are alleg-

ed to have participated in the same act or transaction or in the

same series of acts or transactions constituting an offense or

offenses. Such defendants may be charged in one or more

counts together or separately and all of the défendants need

not be charged in each count.

* Accord, United States v. Turkette, 632 F.2d 896 (1st Cir. 1980),

cert. granted, 49 U.S.L.W. 3531 (U.S. January 26, 1981) (No.

80-808); United States v. Sutton, 605 F.2d 260 (6th Cir. 1979);

United States v. Kaplan, 588 F.2d 71 (4th Cir. 1978), vacated

The court below, implicitly conflating Rule 8(a) and

8(b), held that it was sufficient that Petitioner had

directly participated in, or conspired as to, some (‘‘a

substantial number’’) of the series of (Similar) acts charg-

ed against his co-defendant. The court below found ir-

relevant that Petitioner had not in any way participated

in, or conspired as to, a far greater number of the

similar acts with which his co-defendant was charged.

Put another way, appellant would have no objection

under Rule 8(b) if the counts involving Scotto alone

(1-34 and Scotto’s income tax counts) had been

severed (under Rule 14 or otherwise), thereby

resulting in two trials for Scotto. But these counts

were part of the series of acts committed by Scotto

constituting offenses in a substantial number of

which Anastasio directly participated and as to a

substantial number of which he conspired. App.

20a.

The greater number of counts alleging offenses unrelated

to Anastasio took up most of the trial; the proof of

these charges solely against Scotto was wholly distinct

from the rest of the case. It is on this precise situation

in part on other grounds sub nom, United States v. Seidel, 620 F.2d

1006 (4th Cir. 1980); United States v. Nettles, 570 F.2d 547 (Sth

Cir. 1978); "/nited States v. Satterfield, 548 F.2d 1341 (9th Cir.

1977); United States v. Whitehead, 539 F.2d 1023 (4th Cir. 1976);

United States v. Marionneaux, 514 F.2d 1244 (Sth Cir. 1975);

United States v. Graci, 504 F.2d 411 (3rd Cir. 1974); United States

v. Bova, 493 F.2d 33 (Sth Cir. 1974); United States v. Reynolds, 489

F.2d 4 (6th Cir. 1973), cert. denied, 416 U.S. 988 (1974); United

States v. Eagleston, 417 F.2d 11 (10th Cir. 1969); Chubet v. United

States, 414 F.2d 1018 (8th Cir. 1969); United States v. Gougis, 374

F.2d 758 (7th Cir. 1967); United States v. Spector, 326 F.2d 345

(7th Cir. 1963); Ward v. United States, 289 F.2d 877 (D.C. Cir.

1961); Ingram v. United States, 272 F.2d 567 (4th Cir. 1959).

>

that all other courts have found Rule 8(b) to require

severance: ‘‘Where there are no presumptive benefits

from joint proof of facts relevant to ail the acts or

transactions, there is no ‘series’. Rule 8(b) comes to an

end and joinder is impermissible.’’ (emphasis added)

United States v. King, 355 F.2d 700, 704 (ist Cir. 1966);

‘‘While criminal acts of several defendants may be

similar in nature, these acts cannot be properly joined in

a multiple defendant trial if different facts and cir-

cumstances must be established to support the alleged

violations.’’ United States v. Gentile, 495 F.2d 626, 630

(Sth Cir. 1974).

The question presented is similar to an issue pending

before this Court in United States v. Turkette, cert.

granted, 49 U.S.L.W. 3531 (U.S. January 26, 1981) (No.

80-808). In Turkette a RICO conspiracy count encom-

passed the eight other counts of a nine-count indictment.

Here the RICO conspiracy count did not cover the

thirty-eight unrelated counts. The similarity arose when

the Turkette court, finding the RICO count ‘‘invalid,’’

reversed as to the remaining counts for improper joinder

under Rule 8(b). United States v. Turkette, 632 F.2d

896, 906-910 (Ist Cir. 1980). The ground for reversal was

that different facts needed to be shown for the joined

offenses. Jd. (63? F.2d at 909). In this case, the factual

proof of the thirty-eight offenses charged against Scotto

alone was wholly different from that proof on the

charges relating to Anastasio.

This Court last construed Rule 8(b) in Schaffer v.

United States, 362 U.S. 511 (1960). There an indictment

charged seven defendants with three counts of

transporting stolen property in interstate commerce and

one count of conspiracy to commit those offenses. The

conspiracy count was dismissed at the close of the

government’s case and the substantive counts were sub-

mitted to the jury. This Court held that Rule 8(b) did

not have to be retroactively applied under those facts,

warning that the trial court needed to be sensitive to the

danger of prejudice where ‘‘the charge which originally

justified joinder turns out to lack the support of suffi-

cient evidence’ (emphasis added), id. (362 U.S. at 516).

Here the conspiracy count did not purport to cover the

thirty-eight unrelated counts in which the co-defendant

Scotto alone was charged.

McElroy v. United States, 164 U.S. 76 (1896), cited

by both majority and dissent in Schaffer, is dispositive

here.’ In McElroy, four indictments were consolidated,

six people were named in three of the indictments and

only three of the six in the fourth. As in this case, no

count linked all the defendants and all the offenses. This

> McElroy interpreted Revised Statutes §1024, from which Rule 8

and Rule 13 were recodified. ‘‘The Notes of the Advisory Commit-

tee on Rules with respect to Rules 8 and 13 indicated that they are

substantially restatements of existing law. Thus the construction of

§1024 of the Revised Statutes announced in McElroy v. United

States, supra, still applies.’’ United States v. Graci, 504 F.2d 411,

413 (3rd Cir. 1974). Also see Graci for its thorough discussion of

whether the ‘‘harmless error’’ doctrine can be applied to Rule 8(b)

misjoinder, reviewing the disagreement among the Circuits at the

time. Id. (504 F.2d at 413-414). Since that date, the Fifth Circuit

has reaffirmed its adherence to the view that Rule 8(t) misjoinder is

‘tinherently prejudicial’. United States v. Nettles, 570 F.2d 547,

551 (Sth Cir. 1978). The Fourth Circuit has adopted the ‘‘harmless

error’ standard in United States v. Seidel, 620 F.2d 1006 (4th Cir.

1980), finding that the same evidence could have been introduced in

the severed trial. Here the evidence against Scotto on the thirty-

eight unrelated counts, constituting the bulk of the government’s

case, could not on any theory have been introduced in the severed

trial. See United States v. Satterfield, 548 F.2d 1341, 1346 (9th Cir.

1977.)

9

Court found the joinder to be error: ‘‘[SJuch joinder

cannot be sustained where the parties are not the same

and where the offences are nowise part of the same

transaction and must depend upon evidence of a dif-

ferent state of facts as to each or some of them.’’ Jd.

(164 U.S. at 81).

The aberrant interpretation of Rule 8(b) by the

court below merits review by this Court. The

latitudinarian construction of Rule 8(b) by the court

below subjects the misjoined defendant to an intolerable

risk of prejudice. Such an interpretation has been

criticized by all other courts and commentators.‘ Rule

8(b) had served as a restraint balancing the judicial

economy arising from common proof with the prejudice

inherent in joinder of defendants. When separate proof

of unrelated offenses is required, as here, all that re-

mains is the prejudice. And this should be prohibited, by

the uniform application of the heretofore unquestioned

requirement of Federal Rule of Criminal Procedure

8(b).°

*E.g., | C. Wright, Federal Practice and Procedure §144 (1969)

& (Supp. 1980); 8 Moore’s Federal Practice { 8.06[2].

* The government has contended that Anastasio failed to move

for a severence on Rule 8 grounds prior to trial. In its opinion, the

court below at first accepted this contention, App. 16a, but went on

to state:

Appellant Scotto offered a motion under Rule 8, as well as a

motion under R'ile 14, before the trial began. He moved pur-

suant to both ruies to sever himself from Anastasio or, in the

alternative, to sever a number of new substantive Taft-Hartley

counts in a superseding indictment charging Anastasio with

Seregos payments. Anastasio did not join in this motion, we

assume for practical reasons since if the motion were granted

in the alternative he would be required to stand trial twice.

On September 10, 1979, the day before the trial started, the

Goverment filed a superseding indictment, dropping a mail

fraud charge as well as four Taft-Hartley counts against Scotto

alone. At that time Scotto renewed his earlier severance mo-

tions. In the alternative, Scotto moved to dismiss the RICO

10

2. Of importance to the administration of justice is

the review of the court below’s conclusion that convic-

tion for conspiracy to violate 18 U.S.C. §1962(c), RICO,

could take as its predicate violations of those sections of

29 U.S.C. §186 constituting malum prohibitum, non-

mens rea, offenses. Section 186 prohibits payments rang-

ing from those characterizable simp'v as ‘‘payments’’ to

‘‘bribes,’? from ‘‘corrupt’’ payments to those properly

describable as ‘‘unfair labor practices’’. S. Rep. No. 187,

86th Cong., Ist Sess., p. 10 (1959). Section 186 includes

one ‘‘bribery’’ offense, §186(a) (4), requiring intent to be

conspiracy count on the ground that there were now not one

but multiple conspiracies charged. Anastasio’s counsel

‘fjoinfed] in the application for a _ severance of [his]

client... .’’ App. 17a (emphasis added).

Petitioned for rehearing with the court’s attention directed to:

(1) the memorandum decision of the trial court of January 30, 1980

stating ‘‘Defendant Anastasio, in the course of the trial (See Esp.

Rec. at 4297) moved for a severence of his trial under Rule

8(b).. . .’’ (Mem. op. of 1/30/80 at p. 6); (2) the statement of the

trial court ‘‘that there was a Rule 8 motion by the defendants pre-

trial.’’ Tr. 4309-4311; and (3) the argument of counsel for

Anastasio after joining pre-trial in co-counsel’s Rule 8 motion on

September 10, 1979, identifying the precise grounds for the mis-

joinder as argued herein (Hearing of September 10, 1979, Tr.

26-27), the panel abandoned its self-contradictory assertion of the

first opinion that Anastasio had both not moved under Rule 8 and

that he had joined in his co-defendant’s Rule 8 motion. In the

‘‘Order on Petition for Rehearing by Appellant Anthony Anastasio,

the court begins ‘‘[t]reating appellant’s motion under Rule 8(b) as

properly and timely made... .’’ App. 19a.

By any standard of ‘‘waiver’’ ever considered by this Court,

Petitioner cannot have failed to preserve his motion when he joined

co-counsel’s motion prior to trial, explained the grounds requiring

the severance, and repeated the motion in the course of the trial.

See, Henry vy. Mississippi, 379 U.S. 443 (1965); Fay v. Noia, 372

U.S. 391 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938).

1]

influenced. Here §186(a) (1), containing no intent re-

quirement®, was held a RICO predicate.

While the legislative history does not reflect the

precise reason for including §186 as a RICO predicate,

the legislative purpose is clear; coercive and serious in-

tentional offenses were targeted. See, e.g., S. Rep. No.

91-617, p. 158; 116 Cong. Rec. 591. Thus 18 U.S.C.

§1961(1) makes 18 U.S.C. §201 (bribery) a predicate of-

fense, but 18 U.S.C. §209 (excess compensation), the

malum prohibitum analogue to 29 U.S.C. §186(a)(1), is

not included.

Making every §186 offense a predicate for RICO

violates both the legislative intent and a settled rule of

construction of federal criminal statutes. Since §186(a)(4)

requ res ‘‘intent,’’ and RICO is a serious crime, the

presumption adverted to in United States v. United

States Gypsum Co., 438 U.S. 422, 437 (1978) comes into

play:

Congress will be presumed to have legislated against

the background of our traditional legal concepts

which render intent a critical factor, and absence of

contrary direction [will] be taken as satisfaction with

jewel accepted definitions, not as a departure from

them.

When one surveys the intent of RICO’s sponsors, and

assays the evils they sought to eradicate, the ‘‘intent’”’ in

question is most logically that required by §186(a)(4) —

the intent to be influenced. An intent to dispense with

mens rea in a major felony statute is nowhere reflected

in the legislative history.’

* United States v. Ryan, 350 U.S. 299, 305 (1956).

”S. Rep. No. 91-617, 91st Cong., Ist Sess. (1969); H.R. Rep.

No. 91-1549, 91st Cong., Ist Sess. (1970); 115 Cong. Rec. 575-607,

819-56, 952-72, 35191-217, 35287-364, 36280-93, 36294-96 (Jan.

21-23, Oct. 6-7, 12, 1970).

12

CONCLUSION

For all the above reasons, it is respectfully prayed

that the writ of certiorari be granted.

Respectfully submitted,

MICHAEL E. TIGAR

JOHN MAGE

JOHN J. PRIVITERA

1302 18th Street, N.W.

Washington, D.C. 20036

(202) 785-8900

Counsel for Petitioner

Anthony Anastasio

APPENDIX A

Opinion Below

la

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Nos. 1131-32 — September Term, 1979

(Argued May 20, 1980

Decided September 2, 1980)

Docket Nos. 80-1041, -1044

UNITED STATES OF AMERICA, Appellee,

v.

ANTHONY M. Scotto and

ANTHONY ANASTASIO, Appellants.

(Filed September 2, 1980)

Before OAKES and MESKILL, Circuit Judges, and BoNSAL,

District Judge. *

Appeal from judgments after a jury trial entered in the

United States District Court for the Southern District of New

York, Charles E. Stewart, Judge, convicting appellant Scotto

of violation of the Racketeer Influenced and Corrupt

Organizations (RICO) statute, 18 U.S.C. §1962(c), and con-

victing appellants Scotto and Anastasio of conspiracy to

violate the RICO statute, 18 U.S.C. §1962(d), Taft-Hartley

violations, 29 U.S.C. §186(b), and income tax violations, 26

U.S.C. §§7201, 7206(1). Over allegations of errors in the

district court’s charges to the jury and rulings on appellants’

misjoinder claims, the judgments are affirmed.

EDWARD BENNETT WILLIAMS

Washington, D.C. (Williams

& Connolly, Harold

Ungar, Richard M.

Cooper, of counsel),

for Appellant Scotto.

* Senior District Judge of the Southern District of New York, sit-

ting by designation.

2a

MICHAEL E. TIGAR

Washington, D.C. (John

Mage, Lynne Bernabei,

Washington, D.C., Gustave

H. Newman, New York,

New York, of counsel),

for Appellant Anastasio.

ALAN LEVINE

Assistant United States

Attorney (William M.

Tendy, United States

Attorney for the Southern

District of New York,

Scott W. Muller, Howard

W. Goldstein, Assistant

United States Attorneys,

of counsel), for Appellee.

OAKES, Circuit Judge:

Anthony M. Scotto and Anthony Anastasio, not con-

testing the sufficiency of the evidence, appeal from judgments

of convictions on forty-three counts entered after an eight-

week jury trial in the United States District Court for the

Southern District of New York, Charles E. Stewart, Judge.

The counts included one against Scotto, then president of

Local 1814 of the International Longshoremen’s Association

(ILA), for participating in the affairs of the ILA through a

pattern of racketeering activity from 1974 through part of

January 1979 in violation of 18 U.S.C. §1962(c) (Count 1); a

count charging both Scotto and Anastasio, then executive vice

president of Local 1814, with conspiring to participate in the

affairs of the ILA through a pattern of racketeering activity,

in violation of 18 U.S.C. §1962(d) (Count 50); twenty-four

counts against Scotto (Counts 2-9, 16-30, 34), eight counts

against Anastasio (38-45) and three counts against both

(Counts 35-37) for demanding and receiving unlawful ‘‘labor’’

3a

payments totalling in excess of $250,000, in violation of the

Taft-Hartley Act, 29 U.S.C. §186(b); and four counts against

Scotto (Counts 53-56) and two counts against Anastasio

(Counts 59, 60) for failure to report and pay federal income

taxes on the unlawful amounts obtained from the foregoing

activities, in violation of 26 U.S.C. §§7201 and 7206(1). The

jury was unable to reach a verdict on seventeen other counts

alleging additional Taft-Hartley and tax violations (Counts

10-15, 31-33, 46-49, 51-52, 57-58). The sentences are set out in

the margin.' We affirm the judgments.

' Scotto was sentenced to five years’ imprisonment and a $25,000

fine on Count 1; consecutive one-year terms of imprisonment on

Counts 2-6, for a total of five years, to run concurrently with the

sentence imposed on Count 1; $5,000 fines on Counts 2-6, totaling

$25,000; five years’ probation on each of Counts 7-9, to run con-

currently and to commence upon expiration of the period of in-

carceration; $5,000 fines on Counts 16-20, totaling $25,000; a

suspended sentence and five years’ probation on Counts 21-30 and

34-37; a suspended sentence, five years’ probation to run concur-

rently with the sentence imposed on Count 1, and a $25,000 fine on

Count 50; five years’ imprisonment on each of Counts 53 and aoe

to run concurrently with the sentence on Count 1; and three years’

imprisonment on each of Counts 54 and 56, to run concurrently

and concurrently with the sentence imposed on Count 1. Thus, the

effective sentence imposed on Scotto was five years’ imprisonment,

with five years’ probation following completion of his prison term,

and $75,000 in fines.

Anastasio was sentenced to concurrent one-year terms of im-

prisonment and concurrent fines of $5,000 on Counts 38-42; con-

current one-year terms of imprisonment, consecutive to the one-

year term imposed on Count 38, and concurrent $5,000 fines on

Counts 35-37 and 43-45, the fines imposed concurrently with the

$5,000 concurrent fines on Counts 38-42; a concurrent two-year

term of imprisonment and concurrent $5,000 fine on Count 50; and

a suspended sentence and five years’ probation on Counts 59-60.

This amounted to an effective sentence of two years in prison, five

years’ probation, and a $5,000 fine.

4a

FACTS

From 1975 through 1979, appellant Scotto was president

of ILA Local 1814 in Brooklyn and vice president for

legislative affairs for the ILA nationally. From 1975 through

April of 1978, Anastasio was secretary-treasurer of an

associated ILA local in Brooklyn and he_ subsequently

became executive vice president of Scotto’s Local 1814. He

was also an ILA national organizer. The Government’s

evidence was that they individually and jointly received illegal

labor payoffs during the period from 1975 through 1979 from

six separate waterfront businesses employing ILA members.

The evidence showed the receipt of more than forty separate

cash payments, some as high as $15,000, as kickbacks or com-

missions on business and as ‘‘extra’’ Christmas bonuses.

Walter D. O’Hearn, chief executive of John W. McGrath

Corp. of Brooklyn, a stevedore company, paid Scotto $15,000

quarterly and $5,000 at Christmas, for a total of $65,000 an-

nually, to obtain his assistance in reducing fraudulent and ex-

aggerated workmen’s compensation claims filed by members

of Scotto’s local. William Montella, general manager of Quin

Marine Services, Inc., of Brooklyn, paid Scotto $5,000

quarverly and $5,000 extra each Christmas for a three-year

period to secure his assistance in getting new business and

keeping existing customers from competitor shipping and

stevedoring companies with which Scotto dealt as a labor

leader. Nicholas Seregos of Jackson Engineering Co., Inc., an

ILA-affiliated marine engineering company doing general ship

repair, paid Anastasio a 10% ‘‘commission’’ on business ob-

tained for his company with Scotto’s and Anastasio’s

assistance from Prudential Lines, Inc., and United States

Lines. Additionally, other cash payments of thousands of

dollars were received by Scotto alone or by Scotto and

Anastasio from individuals representing waterfront employers

of ILA labor, including C. C. Lumber Co. of Brooklyn,

American Navigation Co. of Baltimore, Marine Repair Ser-

vices, Inc., of Staten Island, and Joseph Vinal Ship

Maintenance Co. of Manhattan. The proof also established

Sa

that Scotto and Anastasio failed to declare the payoffs on

their federal income tax returns, amounting in Scotto’s case to

$69,700 in 1975, $90,000 in 1976, and $83,500 in 1977, and in

Anastasio’s case to $6,500 in 1976 and $16,500 in 1977.

Scotto, who took the stand in his cwn defense, denied

receiving any payments from Montella or O’Hearn before

January of 1977. As to the payments made thereafter, Scotto

admitted accepting them, but claimed he was acting only as a

conduit for campaign contributions, $50,000 to the 1977 New

York City mayoral campaign of Mario Cuomo, and $25,000

to the 1978 New York State gubernatorial campaign of Gover-

nor Hugh Carey. Louis Valentino, a state official, testified

that he received the $50,000 in cash for the Cuomo campaign

from Anastasio at Scotto’s direction, and Joseph Colozza, an

ILA official from Scotto’s local in charge of Governor

Carey’s Queens campaign, testified to receiving $25,000 in

cash from Scotto. However, no records of these transactions

and no reports to the New York State Board of Elections

were ever made. Cross-examination of Scotto revealed that, in

a tape-recorded conversation with Montella in October 1978,

Scotto said that if any inquiries were ever made, he would

claim the illegal monies received were for political and

charitable contributions. Scotto denied the 10% commission

arrangement with Nicholas Seregos, as well as receipt of any

cash payoffs by Scotto and Anastasio from Joseph Vinal Ship

Maintenance Co. or Marine Repair Services, Inc. He ex-

plained that the cash payment from Joseph Lacqua, an officer

of C.C. Lumber Co. and American Navigation Co., was in-

tended for and ultimately given to Scotto’s wife. The jury

disbelieved the ‘‘conduit’’ defense and other exculpatory

testimony.

Anastasio did not testify on his own behalf, He did call

one character witness and Anthony Valvo, a shop steward

who testified to contacting Anastasio on behalf of Seregos in

1974 concerning the unionizing of Jackson Engineering Co.

6a

Discussion

I. The RICO and RICO conspiracy convictions — instruc-

tion on the element of ‘‘conduct of [the] enterprise's af-

fairs”’

Among the principal arguments on appeal are those

focusing on the ‘RICO’? and ‘*RICO conspiracy’’ convic-

tions. RICO, an acronym for that part of the Organized

Crime Control Act of 1970 dealing with Racketeer Influenced

and Corrupt Organizations, 18 U.S.C. §§1961-68; see general-

ly H.R. Rep. No. 91-1549, 91st Cong., 2d Sess., reprinted in

[1970] U.S. Code Cong. & Ad. News 4007, 4010, 4032-33,

specifically includes within its definition of ‘‘racketeering ac-

tivity’? a wide variety of serious criminal acts under federal

and state law, among them ‘‘any act which is indictable under

title 29, United States Code, section 186 (dealing with restric-

tions on payments and loans to labor organizations).’’ /d.

§1961(1)(C). It furthermore defines ‘‘pattern of racketeering

activity’ as ‘‘requir[ing] at least two acts of racketeering ac-

tivity.’’ Jd. §1961(5). The term ‘‘enterprise’’ includes ‘‘any

union.”’ Jd. §1961(4). Under 18 U.S.C. §1962(c),’ it is

718 U.S.C. §1962 provides in part:

(a) It shall be unlawful for any person who has received any

income derived, directly or indirectly, from a pattern of

racketeering activity ... to use or invest, directly or indirectly,

any part of such income, or the proceeds of such income, in ac-

quisition of any interest in, or the establishment or operation

of, any enterprise which is engaged in or the activities of which

affect, interstate or foreign commerce... .

(b) It shall be unlawful for any person through a pattern of

racketeering activity ... to acquire or maintain, directly or in-

directly, 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 enter-

prise’s affairs through a pattern of racketeering activity, ...

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

any of the provisions of subsections (a), (b), or (c) of this sec-

tion,

7a

unlawful ‘‘for any person employed by or associated with any

enterprise engaged in, or the activities of which affect, in-

terstate or foreign commerce, to conduct or participate,

directly or indirectly, in the conduct of such enterprise’s af-

fairs through a pattern of racketeering activity... .’’ /d.

There also is a prohibition against ‘‘conspir[ing] to violate any

of the provisions’’ of subsection (c) of §1962. Jd. (d).

The RICO statute has been upheld as not unconstitu-

tionally vague. E.g., United States v. Huber, 603 F.2d 387,

393 (2d Cir. 1979), cert. denied, 100 S. Ct. 1312 (1980);

United States v. Swiderski, 593 F.2d 1246, 1249 (D.C. Cir.

1978), cert. denied, 441 U.S. 933 (1979); United States v.

Campanale, 518 F.2d 352, 364 (9th Cir. 1975) (per curiam),

cert. denied, 423 U.S. 1050 (1976); United States v. Field, 432

F. Supp. 55, 58 (S.D.N.Y. 1977), aff’d, 578 F.2d 1371 (2d

Cir.), cert. dismissed, 439 U.S. 801 (1978). It has been applied

in a variety of circumstances, e.g., United States v. Boylan,

620 F.2d 359, 360-62 (2d Cir. 1980) (RICO count and illegal

labor payments counts not multiplicitous and not violative of

double jeopardy; RICO count does not include separate

scienter element over and above that required for predicate

crimes), petition for cert. filed, 48 U.S.L.W. 3787 (U.S. May

20, 1980); United States v. Weisman, No. 79-1315, slip op. at

2229 (2d Cir. Apr. 4, 1980), petition for cert. filed, 49

U.S.L.W. 3018 (U.S. July 10, 1980) (affairs of theater con-

ducted through a pattern of racketeering activity including

predicate acts of securities and bankruptcy fraud); United

States v. Huber, supra, 603 F.2d at 387 (pattern of racketeer-

ing activity involving fraudulent execution of medical services

and supplies contracts by a group of corporations).

Appellant Scotto’s basic argument is that the jury was in-

adequately instructed on the issue whether he conducted the

union’s affairs through a pattern of racketeering activity,

namely through the Taft-Hartley violations. He suggests that

the district court’s charge was inadequate because of a failure

to require a sufficient nexus between the predicate misconduct

and the conduct of the enterprise, and a failure to explore

8a

more fully the statutory language pertaining to the ‘‘conduct

of such enterprise’s affairs.’’ Scotto notes that in cases in

which an established legitimate entity as opposed to a criminal

enterprise is involved, the conduct of the affairs element

assumes great significance. Appellant places principal reliance

on United States v. Nerone, 563 F.2d 836, 851-52 (7th Cir.

1977), cert. denied, 435 U.S. 951 (1978), holding that the

Government’s case failed because of inadequate proof of a

connection between the racketeering activities, illegal gam-

bling, and the corporation operating the trailer park where the

gambling occurred. See also United States v. Huber, supra,

603 F.2d at 395 (summarizing Nerone). He also cites, among

other cases, United States v. Dennis, 458 F. Supp. 197 (E.D.

Mo. 1978), in which the court found an indictment faulty

under RICO because of its failure to assert any nexus between

the alleged activities and the conduct of the enterprise. The

court noted: ‘‘The mere fact that defendant is employed by

the enterprise [General Motors Assembly Division] and col-

lects unlawful debts on the premises of the enterprise ...

does not establish that the defendant participated in the con-

duct of the enterprise’s affairs through the collection of the

debts.’’ Jd. at 199.

The Government first argues that Scotto failed properly

to preserve this claim regarding the court’s jury charge. It is

true that the district court during an all-day charging con-

ference read verbatim the portion of its charge about which

Scotto now complains and that defense counsel at that time

declined to object to the charge. However, Scotto did both

submit his own request to charge on the subject’ and make a

* The statute requires not only that you find two substantive

crimes to establish a pattern of racketeering activity, you must

also find that the defendant Scotto conducted the affairs of the

1.L.A. through the alleged pattern of racketeering. In order to

find that the defendant Scotto conducted the I.L.A.’s affairs

through a pattern of racketeering, you must find that both of

the alleged labor violations concerned or related to the opera-

tion or management of the enterprise. You must find that the

pattern of racketeering [a]ffected the affairs of the I.L.A., in its

essential functions. In order to find that the affairs of the

9a

blanket objection to the court’s failure to incorporate Scotto’s

suggested charges in the court’s instructions. Assuming

without deciding that Scotto has preserved his appeal, we

reach the merits of this faulty instruction issue.

The district court instructed the jury that the Government

must prove beyond a reasonable doubt:

[T]hat through the two or more of these connected

racketeering offenses the defendant Scotto conducted or

participated directly or indirectly in the conduct of the af-

fairs of that enterprise.

And the court went on to explain:

{[YJou must find beyond a reasonable doubt that the

defendant committed the two or more of the offenses

alleged in Counts 2 through 37 while and as part of con-

ducting or participating either directly or indirectly in the

conduct of the affairs of the enterprise.

In this regard it is not necessary for the Government to

prove that the affairs of the enterprise were advanced by

the defendant’s activities, although you may find this to

be true, or that the particular enterprise was corrupt or

that the enterprise authorized the defendant to commit

the particular acts of racketeering activity alleged.

It is only necessary to find that the acts were commit-

ted by the defendant or caused to be committed by him

in the conduct of, or his participation in, the affairs of

the enterprise. (Emphasis added.)

I.L.A. were conducted through a pattern of racketeering you

must find beyond a reasonable doubt that there was a connec-

tion between the so-called acts of racketeering and the affairs

of the I.L.A. If this essential connection has not been proved

then you must acquit the defendant Scotto of the charge in

Count I, even if you find that all of the alleged payments were

unlawfully made. (Emphasis added.) Appendix to Brief of Ap-

pellant Scotto at 46.

10a

Appellant wanted the court to state that the jury was re-

quired to find that the predicate acts ‘‘concerned or related to

the operation or management of the enterprise’? and

‘‘lalffected the affairs of the I.L.A. in its essential func-

tions.’’ But appellant cites no case demanding that a jury

charge include his proposed or similar language. United States

v. Huber, supra, and United States v. Nerone, supra, two of

the cases upon which appellant relies, involved challenges to

allegations in the indictment or to the sufficiency of the

evidence; they did not discuss the language to be used in

charging the jury about the conduct of the enterprise. In any

event, their holdings concerning the degree of interrelationship

required do not go as far as appellant would like. We agree

with Judge Pierce, in United States v. Stofsky, 409 F. Supp.

609 (S.D.N.Y. 1973), aff’d, 527 F.2d 237 (2d Cir. 1975), cert.

denied, 429 U.S. 819 (1976), that the statute ‘‘does not define

[the] connection by distinguishing between predicate acts

which play a major or a minor role, or any role at all, in

what might be seen as the usual operations of the enterprise;

nor does it require that such acts be in furtherance of the

enterprise....’’ Jd. at 613. The statute, then, declines to

define in quantitative terms the degree of interrelationship

between the pattern of racketeering and the conduct of the

enterprise’s affairs.

We think that one conducts the activities of an enterprise

through a pattern of racketeering when (1) one is enabled to

commit the predicate offenses solely by virtue of his position

in the enterprise or involvement in or control over the affairs

of the enterprise, or (2) the predicate offenses are related to

the activities of that enterprise. Simply committing predicate

acts which are unrelated to the enterprise or one’s position

within it would be insufficient. Cf. United States v. Rubin,

559 F.2d 975, 990 (Sth Cir. 1977), vacated on other grounds,

439 U.S. 810 (1978), rev’d in part on other grounds, 591 F.2d

278 (Sth Cir. 1979) (RICO requires ‘‘some relationship be-

tween the proscribed acts and the maintenance of union posi-

lla

tion’). But, as Judge Lasker noted in United States v. Field,

supra:

Section 1962(c) nowhere requires proof regarding the ad-

vancement of the union’s affairs by the defendant’s ac-

tivities, or proof that the union itself is corrupt, or proof

that the union authorized the defendant to do whatever

acts form the basis for the charge. It requires only that

the government establish that the defendant’s acts were

committed in the conduct of the union’s affairs.

432 F. Supp. at 58. Furthermore, we do not think it necessary

for a person to solidify or otherwise enhance his position in

the enterprise through commission of the predicate violations.

The court below “properly told the jury that it was

necessary to find that the defendant committed two or more

of the offenses alleged in Counts 2 through 37 ‘‘while and as

part of conducting or participating either directly or indirectly

in the conduct of the affairs of the enterprise.’’ The charge

did not have to require that the ILA was itself corrupted or

even that the union’s policies and administration were

changed by the racketeering pattern. Judge Stewart in this

case emphasized more clearly the need for a connection than a

charge upheld in United States v. Rubin, supra, 559 F.2d at

989-90. There, the Fifth Circuit declined to find reversible er-

ror in the district court’s failure to add to the charge the

defendant’s proffered words ‘‘by means of,’’ in addition to

the word ‘‘through,’’ and approved an instruction, tracking

the language of §1962(c), that the Government had to prove

that the defendant participated in the affairs of the union

‘“‘tthrough’’ the two or more offenses. We thus find no error

in this part of the charge.

Il, RICO — mens rea

Appellant Scotto argues that the RICO conviction is in-

valid and both appellants allege that the RICO conspiracy

convictions are invalid because the district court failed to in-

struct the jury adequately on mens rea. The statute on its face

is silent on the issue of mens rea. Scotto attributes the lack of

12a

mens rea language in the RICO statute to a congressional

oversight. Appellants argue that this silence is ordinarily

overlooked because most of the predicate offenses listed in

§1961, such as murder, kidnapping, arson and robbery,

themselves require high degrees of mens rea. Unlike these

other listed predicate offenses, a Taft-Hartley violation of 29

U.S.C. §186* is a non-mens rea misdemeanor. Consequently,

their argument runs, a RICO indictment predicated solely on

violations of §186 could produce a twenty-year sentence

without any proof of mens rea, an unfair result, unless RICO

itself supplies some additional mens rea requirement.

As we recently stated in United States v. Boylan, 620

F.2d at 361-62, ‘‘[t]he RICO count does not include a scienter

element over and above that required by the predicate crimes,

in this case the violations of 29 U.S.C. §186(b)(1).’’ The

charge delivered by the district court in Boylan, which im-

posed an intent element on the defendant as a taker of a

“29 U.S.C. §186 provides in part:

(a) It shall be unlawful for any employer or association of

employers or any person who acts as a labor relations expert,

adviser, Or consultant to an employer or who acts in the in-

terest of an employer to pay, lend, or deliver, or agree to pay,

lend, or deliver, any money or other thing of value —

(1) to any representative of any of his employees who

are employed in an industry affecting commerce; or

(2) to any labor organization, or any officer or employee

thereof, which represents, seeks to represent, or would ad-

mit to membership, any of the employees of such employer

who are employed in an industry affecting commerce; or

(4) to any officer or employee of a labor organization

engaged in an industry affecting commerce with intent to

influence him in respect to any of his actions, decisions, or

duties as a representative of employees or as such officer

or employee of such labor organization.

(b) (1) It shall be unlawful for any person to request, de-

mand, receive, or accept, Or agree to receive or accept, any

payment, loan, or delivery of any money or other thing of

value prohibited by subsection (a) of this section.

13a

§186(a) payment, was upheld and characterized as ‘‘more

favorable to defendant than required by United States v. Ric-

ciardi, 357 F.2d 91, 99 (2d Cir. 1966).’’ Boylan, 620 F.2d at

362. In the instant case, Judge Stewart required the jury,

before it rendered RICO convictions, to find that the defen-

dant under consideration ‘‘acted wilfully and knowingly,’’

that he ‘‘knew what he was doing and that he did it

deliberately and voluntarily,’’ that he acted ‘‘knowingly and

deliberately with a criminal motive or purpose,’’ and that he

“twas aware of the general unlawful nature of his act.’’

Scotto further argues that the instruction was improper

because it did not require the jury to find a willful violation

of RICO. Relying on United States v. Winston, 558 F.2d 105,

107-09 (2d Cir. 1977), he defines the term ‘‘willfully’’ as in-

tentionally violating a ‘‘known legal duty.’’ Wéinston,

however, involved a violation of Subsection Tenth, §2 of the

Railway Labor Act, 45 U.S.C. §152, which specifically re-

quires a ‘‘willful failure ... to comply with the terms”’ of

other subsections of the law. The law at issue here does not

demand willful violations of the RICO statute, nor does it re-

quire willful violations of the predicate offenses, which would

make the Winston case analagous. Therefore, although the

Government concedes that willfully committing some unlawful

predicate act is necessary, no specific intent to engage in an

unlawful pattern of racketeering prohibited by RICO is re-

quired. Here, as in Boylan, we think the court’s charge was

favorable to the defendant because it permitted conviction

under RICO only if the jury found a ‘‘criminal motive or pur-

pose.’’ Even the cases cited by Scotto do not require as much.

The argument made by both appellants attacking the

district court’s view of the intent necessary for a RICO con-

spiracy conviction also lacks werit. In the part of the jury

charge dealing with the conspiracy count, Judge Stewart

repeated some of the language from his charge on the

substantive RICO offense. He also stated at one point that

appellants must be found to have ‘‘participated in the con-

spiracy with a specific and criminal intent, that is, a purpose

l4a

to violate the law.’’ If anything, the district court erred in

favor of the appellants by delivering this portion of the charge

in which it implied that a specific intent to violate the RICO

conspiracy provision was required. We have no reason to

believe, however, from the words of the statute or from

general criminal law doctrine, that the quantum of mens rea

required for a RICO conspiracy conviction should be different

from or greater than that required for a substantive RICO of-

fense. 18 U.S.C. §1962(d). See United States v. Feola, 420

U.S. 671, 686-88 (1975); United States v. Mauro, 501 F.2d 45,

51 (2d Cir.), cert. denied, 419 U.S. 969 (1974).

III. Section 186 counts as lesser included offenses in RICO

Appellant Scotto argues that multiple sentences, even if

concurrent, cannot be imposed for violations of RICO and

§186 because §186 Taft-Hartley Act violations are lesser in-

cluded offenses, citing United States v. Umans, 368 F.2d 725,

730 (2d Cir. 1966), cert. dismissed, 389 U.S. 80 (1967). The

argument is that §186 violations are lesser included offenses

because all of their elements, plus other elements, must be

proved to show a RICO violation predicated as here on viola-

tions of §186. See Sansone v. United States, 380 U.S. 343,

349-50 (1965) (defining lesser included offenses); United States

v. Markis, 352 F.2d 860, 865-67 (2d Cir. 1965), vacated on

other grounds, 387 U.S. 425 (1967).

This issue was, however, resolved contrary to appellant

Scotto’s position in United States v. Boylan, supra, 620 F.2d

at 360-61. In Boylan this court held that RICO and §186

violations are ‘‘separate crimes, separately punishable,”’

because they ‘‘do not proscribe the same act of transaction,

and they implement different congressional purposes.’’ Jd. at

361. See also United States v. Rone, 598 F.2d 564, 571 (9th

Cir. 1979), cert. denied, 100 S. Ct. 1345 (1980).

IV. Violation of 29 U.S.C. §186(b)(1) is a RICO predicate

offense

Appellants contend that the only illegal payments that

can serve as predicate offenses to a RICO violation are those

lSa

prohibited by 29 U.S.C. §186(a)(4) — a bribery provision.‘

Here, the Taft-Hartley predicate offenses charged involved the

receipt of payments from an employer by a representative of

his employees in violation of §186(b). Because the definition

of ‘‘racketeering activity’? in 18 U.S.C. §1961(1)(C) makes a

violation of any part of §186 a sufficient predicate offense on

which to base a RICO conviction, we reject appellants’ claim.

The legislative history presented by appellant Anastasio fails

to convince us that the RICO statute should be given any

reading other than the one indicated by its words themselves.

V. The court’s charge on the elements of §186

Appellant Scotto contends that the district court im-

properly instructed the jury regarding the definition of the

“thing of value’ required to be received for a §186(b) viola-

tion. This claim relates to his ‘‘conduit’’ defense that the

O’Hearn and Montella payments were for political campaign

contributions. The court’s charge defined ‘‘thing of value’’ as

‘any material thing with a monetary value’’ and noted that

with respect to the conduit defense, the Government could not

prevail if, in addition to certain other facts, the jury found

that Scotto ‘‘did not benefit in any way by the payment or

delivery of the money to him.’’ This portion of the instruc-

tions was not expressly objected to at trial. Indeed, Scotto ex-

pressly agreed in the charging conference that he was required

not to ‘benefit’? from any payments. Nor was any objection

made during the charging conference, a transcript of which

we have reviewed, to the suggestion made by United States

Attorney Fiske and later incorporated in the charge that the

jury might find a benefit to Scotto simply from his delivery of

campaign contributions. While we have some doubt about

whether mere goodwill from delivering such contributions is

properly within the meaning of ‘‘thing of value’’ under

§186(b)(1), we do not find that part of the charge to con-

stitute ‘‘plain error,’’ under Fed. R. Crim. P. 52(b), in the

context of long and complicated instructions. See United

* Id.

l6a

States v. Calfon, 607 F.2d 29, 31 (2d Cir. 1979), cert. denied,

100 S. Ct. 1044 (1980).

Nor was the district court required, as Scotto contends,

to charge the jury that Scotto had to ‘‘know’’ that the benefit

he was receiving was a ‘‘thing of value’’ before he could be

convicted of a §186(b) violation. This issue was not raised

below and no such instruction was requested. Moreover,

nothing in the language of §186 requires knowledge that what

one is receiving is a ‘‘thing of value.’’ But see United States v.

Holt, 333 F.2d 455, 456-57 (2d Cir. 1964), cert. denied, 380

U.S. 942 (1965) (instruction upheld requiring knowledge that

§186(b) payment was a thing of value and that it was being

given by an employing company to a union leader). All that is

required is an awareness of the benefit itself.

VI. Taxation of ‘‘things of value’’

In a rather farfetched argument, appellant Scotto main-

tains that his tax convictions under Counts 55-56 should be

reversed because the jury might have mistakenly thought that

an intangible benefit received from conveying political con-

tributions would constitute taxable income. He bases this con-

tention on the fact that the district court repeated the term

‘things of value,’’ used earlier in discussing the Taft-Hartley

counts, to explain to the jury what constituted taxable in-

come. In the context of the entire charge, however, we believe

there was little or no chance that the jury would apply to the

tax counts the district court’s previous explanation of what

would be a sufficient ‘‘benefit’’ necessary to find guilt under

§186(b). Furthermore, the district court was not required as

Scotto contends to tell the jury that the defense to Counts 53

and 54 was different from that to Counts 55 and 56.

VII. Misjoinder of defendants

Appellant Anastasio argues that he was misjoined with

Scotto in violation of Fed. R. Crim. P. 8(b) and 14. We are

convinced that he failed to make before trial the 8(b) motion

which he now advances, as is required in order to preserve it

17a

on appeal. United States vy. Papadakis, 510 F.2d 287, 300 (2d

Cir.), cert. denied, 421 U.S. 950 (1975). A proper 8(b) motion

must be granted if the indictment violates the rule. Anastasio

did make a timely motion under Rule 14, which provides for

the discretionary severance of either counts or defendants,

asking the district court to order a separate trial for each

defendant. Asserting that the 8(b) issue is dispositive,

however, he does not now argue on appeal that the trial judge

abused his discretion in denying the Rule 14 motion. Nor do

we think that there was such an abuse, since it was alleged

(and proven) that the codefendants participated as partners in

respect to certain of the payments.

Appellant Scotto offered a motion under Rule 8, as well

as a motion under Rule 14, before the trial began. He moved

pursuant to both rules to sever himself from Anastasio or, in

the alternative, to sever a number of new substantive Taft-

Hartley counts in a superseding indictment charging Anastasio

with the Seregos payments. Anastasio did not join in this mo-

tion, we assume for practical reasons since if the motion were

granted in the alternative he would be required to stand trial

twice.

On September 10, 1979, the day before the trial started,

the Government filed a superseding indictment, dropping a

mail fraud charge as well as four Taft-Hartley counts against

Scotto alone. At that time Scotto renewed his earlier

severance motions. In the alternative, Scotto moved to dismiss

the RICO conspiracy count on the ground that there were

now not one but multiple conspiracies charged. Anastasio’s

counsel ‘‘join{ed] in the application for a severance of [his]

client. ..’’ Neither defendant moved to sever the substan-

tive racketeering count and the Taft-Hartley counts against

Scotto alone from the other counts charging Scotto and

Anastasio together. Thus by the time the trial commenced

Anastasio had not moved the court to sever the charges

against Scotto alone from the charges against both Scotto and

himself. But even if Anastasio did properly raise the 8(b) issue

that he now argues, there were sufficient allegations and

18a

proof that Anastasio and Scotto participated in the same

series of transactions, which included the racketeering counts

and the racketeering conspiracy counts. The former is thus in

no better a position than the appellant Cannatella in United

States v. Weisman, supra, slip op. at 2252-54, who was not

named in any RICO count or the securities fraud counts

charged in the indictment against the other defendants but

whose 8(b) motion was denied since, as the rule specifically

provides, ‘‘all of the defendants need not be charged in each

count.”’

Appellant Scotto also raises a misjoinder argument. Con-

cededly, he filed a timely motion pursuant to Rules 8 and 14,

which argued that the substantive Taft-Hartley counts against

Anastasio (Counts 38-49) were misjoined. Those counts

against Anastasio alone relate to different payments made by

Seregos of Jackson Engineering Co., Inc., in the years 1977,

1978, and 1979. Jackson Engineering is also a subject of the

Overt acts listed in the conspiracy count. Accordingly we do

not think that this joinder was erroneous. Even if it were er-

roneous, it would constitute harmless error in Scotto’s case.

United States v. Werner, 620 F.2d 922 (2d Cir. 1980).

We have carefully considered any and all other conten-

tions of the appellants and find them to be without merit.

Accordingly the judgments are affirmed.

APPENDIX B

Order on Petition for Rehearing

19a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

a

Nos. 1131-32—September Term, 1979

(Argued May 20, 1980 Decided September 2, 1980)

(On Rehearing Decided March 6, 1981)

Docket Nos. 80-1041, 80-1044

7

UNITED STATES OF AMERICA,

Appellee,

—

ANTHONY M. ScotTro and

ANTHONY ANASTASIO,

Appellants.

— i>

ORDER ON PETITION FOR REHEARING BY

APPELLANT ANTHONY ANASTASIO

Treating appellant’s motion under Rule 8(b) as

properly and timely made, it was properly denied.

This is true because, as required by Rule 8(b), the

appellants were ‘‘alleged to have participated in the

same act or transaction or in the same series of acts

or transactions constituting an offense or offenses.’

“TAJll of the defendants need not be charged in each

count.”’ Fed. R. Crim. P. 8(b). As Judge Stewart

pointed out in his memorandum decision, No. 79 Cr.

32 at 7 (S.D.N.Y. Jan. 1, 1980), appellant Anastasio

20a

was named alone in twenty counts out of sixty and

jointly with ap vellant Scotto in three substantive

counts. Also, Count 50, which charges them with

conspiracy, incorporated the allegations in Counts

35-49 (all of which name appellant Anastasio) as

“describing some of the means by which the defen-

dants committed the offenses charged.’

Put another way, appellant would have no objec-

tion under Rule &(b) if the counts involving Scotto

alone (1-34 and Scotto’s income tax counts) had been

severed (under Rule 14 or otherwise), thereby result-

ing in two trials for Scotto. But these counts were

part of the series of acts committed by Scotto consti-

tuting offenses in a substantial number of which

Anastasio directly participated and as to a substan-

tial number of which he conspired.

Accordingly, the petition for rehearing is denied.

JAMES L. OAKES,

THOMAS J. MESKILL,

Circuit Judges

DUDLEY B. BONSAL,

District Judge

APPENDIX C

Statutes Involved

2la

Racketeer Influenced And Corrupt Organizations,

18 U.S.C. 1961, et seq.

§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) any act which is in-

dictable 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 pension

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

credit transactions), section 1084 (relating to the transmission

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 ex-

tortion), section 1952 (relating to racketeering), section 1953

(relating to interstate transportation of wagering parapher-

nalia), section 1954 (relating to unlawful welfare fund

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

gambling businesses), sections 2314 and 2315 (relating to in-

terstate 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 S5O0l(c) (relating to embezzlement

from union funds); or (D) any offense involving fraud con-

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

securities, or the felonious manufacture, importation, receiv-

22a

ing, concealment, buying, selling, or otherwise dealing in nar-

cotic 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 Commonwealth of Puerto Rico, any

territory or possession of the United States, any political sub-

division, or any department, agency, or instrumentality

thereof;

(3) ‘‘person’’ includes any individual or entity capable of

holding a legal or beneficial interest in property;

(4) ‘enterprise’ includes any individual, partnership, cor-

poration, association, or other legal entity, and any union or

group of individuals associated in fact although not a legal

entity;

(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’? means a debt (A) incurred or con-

tracted in gambling activity which was in violation of the law

of the United States, a State or political subdivision thereof,

or which is unenforceable under State or Federal law in whole

or in part as to principal or interest because of the laws

relating to usury, and (B) which was incurred in connection

with the business of gambling in violation of the law of the

United States, a State or political subdivision thereof, or the

business of lending money or a thing of value at a rate

usurious under State or Federal law, where the usurious rate

is at least twice the enforceable rate;

(7) ‘‘racketeering investigator’’ means any attorney or in-

vestigator so designated by the Attorney General and charged

with the duty of enforcing or carrying into effect this chapter;

(8) ‘racketeering investigation’? means any inquiry con-

ducted by any racketeering investigator for the purpose of

ascertaining whether any person has been involved in any

23a

violation of this chapter or of any final order, judgment, or

decree of any court of the United States, duly entered in any

case or proceeding arising under this chapter;

(9) ‘‘documentary material’? includes any book, paper,

document, record, recording, or other material; and

(10) ‘‘Attorney General’’ includes the Attorney General

of the United States, the Deputy Attorney General of the

United States, any Assistant Attorney General of the United

States, or any employee of the Department of Justice or any

employee of any department or agency of the United States so

designated by the Attorney General to carry out the powers

conferred on the Attorney General by this chapter. Any

department or agency so designated may use in investigations

authorized by this chapter either the investigative provisions

of this chapter or the investigative power of such department

or agency otherwise conferred by law.

§1962. Prohibited activities

(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 unlawful debt

in which such person has participated as a principal within the

meaning of section 2, title 18, United States Code, to use or

invest, directly or indirectly, any part of such income, or the

proceeds of such income, in acquisition of any interest in, or

the establishment 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 intention

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 ac-

complices in any pattern or racketeering activity or the collec-

tion 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 confer, either in law or in fact, the

power to elect one or more directors of the issuer.

24a

(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 ac-

tivities 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 enter-

prise’s affairs through a pattern of racketeering activity or

collection of unlawful debt.

(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.

§1963. Criminal penalties

(a) Whoever violates any provision of section 1962 of this

chapter shall be fined not more than $25,000 or imprisoned

not more than twenty years; or both, and shall forfeit to the

United States (1) any interest he has acquired or maintained in

violation of section 1962, and (2) any interest in, security of,

claim against, or property or contractual right of any kind af-

fording a source of influence over, any enterprise which he

has established, operated, controlled, conducted, or par-

ticipated in the conduct of, in violation of section 1962.

(b) In any action brought by the United States under this

section, the district courts of the United States shall have

jurisdiction to enter such restraining orders or prohibitions, or

to take such other actions, including, but not limited to, the

acceptance of satisfactory performance bonds, in connection

with any property or other interest subject to forfeiture under

this section, as it shall deem proper.

(c) Upon conviction of a person under this section, the

court shall authorize the Attorney General to seize all proper-

ty or other interest declared forfeited under this section upon

such terms and conditions as the court shall deem proper. If a

property right or other interest is mot exercisable or

64

—_

25a

transferable for value by the United States, it shall expire, and

shall not revert to the convicted person. All provisions of law

relating to the disposition of property, or the proceeds from

the sale thereof, or the remission or mitigation of forfeitures

for violation of the customs laws, and the compromise of

claims and the award of compensation to informers in respect

of such forfeitures shall apply to forfeitures incurred, or alleg-

ed to have been incurred, under the provisions of this section,

insofar as applicable and not inconsistent with the provisions

hereof. Such duties as are imposed upon the collector of

customs or any other person with respect to the disposition of

property under the customs laws shall be performed under

this chapter by the Attorney General. The United States shall

dispose of all such property as soon as commercially feasible,

making due provision for the rights of innocent persons.

§1964. Civil remedies

(a) The district courts of the United States shall have

jurisdiction to prevent and restrain violations of section 1962

of this chapter by issuing appropriate orders, including, but

not limited to: ordering any person to divest himself of any

interest, direct or indirect, in any enterprise; imposing

reasonable restrictions on the future activities or investments

of any person, including, but not limited to, prohibiting any

person from engaging in the same type of endeavor as the

enterprise engaged in, the activities of which affect interstate

or foreign commerce; or ordering dissolution or reorganiza-

tion of any enterprise, making due provision for the rights of

innocent persons.

(b) The Attorney General may institute proceedings under

this section. In any action brought by the United States under

this section, the court shall proceed as soon as practicable to

the hearing and determination thereof. Pending final deter-

mination thereof, the court may at any time enter such

restraining orders or prohibitions, or take such other actions,

including the acceptance of satisfactory performance bonds,

as it shall deem proper.

26a

(c) Any person injured in his business or property by

reason of a violation of section 1962 of this chapter may sue

therefor in any appropriate United States district court and

shall recover threefold the damages he sustains and the cost of

the suit, including a reasonable attorney’s fee.

(d) A final judgment or decree rendered in favor of the

United States in any criminal proceeding brought by the

United States under this chapter shall estop the defendant

from denying the essential allegations of the criminal offense

in any subsequent civil proceeding brought by the United

States.

* * *

Taft-Hartley Act, 29 U.S.C. 186

(a) It shall be unlawful for any employer or association

of employers or any person who acts as a labor relations ex-

pert, adviser, or consultant to an employer or who acts in the

interest of an employer to pay, lend, or deliver, or agree to

pay, lend, or deliver, any money or other thing of value—

(1) to any representative of any of his employees who

are employed in an industry affecting commerce; or

(2) to any labor organization, or any officer or

employee thereof, which represents, seeks to represent, or

would admit to membership, any of the employees of

such employer who are employed in an industry affecting

commerce; or

(3) to any employee or group or committee of

employees of such employer employed in an industry af-

fecting commerce in excess of their normal compensation

for the purpose of causing such employee or group or

committee directly or indirectly to influence any other

employees in the exercise of the right to organize and

bargain collectively through representatives of their own

choosing; or

(4) to any officer or employee of a labor organization

engaged in an industry affecting commerce with intent to

27a

influence him in respect to any of his actions, decisions,

or duties as a representative of employees or as such of-

ficer or employee of such labor organization.

(b)(1) It shall be unlawful for any person to request, de-

mand, receive, or accept, or agree to receive or accept, any

payment, loan, or delivery of any money or other thing of

value prohibited by subsection (a) of this section.

* * *

(d) Any person who willfully violates any of the provi-

sions of this section shall, upon conviction thereof, be guilty

of a misdemeanor and be subject to a fine of not more than

$10,000 or to imprisonment for not more than one year, or

both.