Petition — RONALD J. WILLIAMS v. UNITED STATES (Nos. 80-6307, 80-1517, 6309)

Supreme Court brief1980

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RECEIVED

MAR Y Iyd!

OFFICE OF THE CLERK

1 SUPREME COURT, U.S.

4 xo. 80-6307

5 IN THE

5 ji SUPREME COURT FOR THE UNITED STATES

7 | TERM 1980

8 RONALD JOHN WILLIAMS

9 Petitioner

10 vs.

11 \ UNITED STATES OF AMERICA

12 Respondent.

17 PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

18 NINTH CIRCUIT

25 Anthony Savage

Attorney for Petitioner

sa 615 Lyon Building

27 607 Third Avenue

Seattle, Washington 98104

: Telephone: (206) 682-1882

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QUESTIONS PRESENTED FOR REVIEW

Can a group of individuals associated in fact commit to

unlawful acts for profit constitute an “enterprise” within the

meaning of the Racketeer Influenced and Corrupt Organizations

Act (18 U.S.C. § 1961 et seg.)?

PARTIES TO THE PROCEEDING BELOW

The following persons were also tried and convicted

in the same proceeding and their appeals were jointly adjudicated

in the decision of the United States Court of Apveals for the

Ninth Circuit, of which this review is sought:

1. Richard F. Caliguri

2. John J. Carbone

3. Joseph M. Carbone

4. George V. Janovich

5. Frank J. Mazzuca

6. Lamont A. Zemek

PETITION FOR WRIT OF CERTIORARI - i

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SEATTLE, WASHINGTON 98104

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INDEX

QUESTIONS PRESENTED FOR REVIEW .

PARTIES TO THE PROCEEDING BELOW .

LIST OF AUTHORITIES CITED

OPINION BELOW......

JURIGDICTION . . « « «© ec ce «

de STATUTORY PROVISIONS INVOLVED

II. STATEMENT OF THE CASE... .

II!. REASONS FOR GRANTING THE WRIT

. . . . . . . 1

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THERE IS A CONFLICT IN THE CIRCUIT COURTS OF

APPEAL OVER WHETHER THE TERM "ENTERPRISE"

INCLUDES ILLEGITIMATE AS WELL AS LEGITIMATE

ASSOCIATIONS.

IV. CONCLUSION . . « « « ce « «

INDEX FOR WRIT OF CERTIORARI - ii

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LIST OF AUTHORITIES CITED

TABLE OF CASES

PAGE

Ianelli v. United States, 420 U.S. 770, 787 n. 19 (1975) 6

United States v. Aleman, 609 F.2d 298 (7th Cir. 1979) 5

United States v. Altese, 542 F.2d 104 (2nd Cir. 1976) 5

cert. den. 429 U.S.1039 (1977)

United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980)

cy.

cert. den. U.S. (2/23/81)

United States v. Elliott, 571 F.2@ 880 (Sth Cir. 1978) 5

cert. den. 439 U.S. 953 (1978)

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

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

Petition for rehearing en banc granted

(Nov. 7, 1979)

United States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978) 5

cert. den. 441 U.S. 993 (1979)

United States v. Turkette, 632 F.2d 896 (lst Cir. 1980) 6

STATUTES CITED

Title 18 U.S.C. § 1341

Title 18 U.S.C. § 1342

Title 18 U.S.C. § 1502

Title 18 U.S.C. § 1503

Title 18 U.S.C. § 1510

Title 18 U.S.C. § 1511

Title 18 U.S.C. § 1951

Title 18 U.S.C. § 1952

Title 18 U.S.C. § 1955

Title 18 U.S.C. § 1961(4)

Title 18 U.S.C. § 1961(5)

Title 18 U.S.C. § 1962

Title 18 U.S.C. § 1962(c)

Title 18 U.S.C. § 1962(d)

LIST OF AUTHORITIES - iii

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3, 5

2, 4

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STATUTES (Continued)

Title 18 U.S.C. § 1963(a)

Title 28 U.S.C. § 1254(1)

LIST OF AUTHORITIES - iv

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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 6, 1980.

OPINION BELOW

The opinion below of the Court of Appeals, not yet

reported, is attached as Appendix "B" to this petition. No

opinion was rendered by the District Court for the Western

District of Washington. The Judgment and Commitment of the

District Court attached as Appendix "C" to this petition, was

filed July 17, 1979.

JURISDICTION

The opinion of the United States Court of Appeals for

the Ninth Circuit was filed and entered on October 6, 1980.

Co-defendants Richard F. Caliguri and Frank J. Mazzuca petitioned

for rehearing. Caliguri's petition for rehearing was denied on

November 20, 1980, and Mazzuca's on January 7, 1981. A copy of

the order denying Mazucca's petition for rehearing is attached

to the opinion of the Court of Appeals as set forth in Appendix

"B" to this petition.

Jurisdiction of this Court is invoked under Title 28,

U.S.C. § 1254(1).

PETITION FOR WRIT OF CERTIORARI - l

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STATUTORY PROVISIONS INVOLVED

This petition involves the provisions of 18 U.S.C.

§ 1961(4) and 18 U.S.C. § 1962(c) and (d). The full text of

these statutes is attached as Appendix "A".

STATEMENT OF THE CASE

A. Procdural Background

On December 8, 1978, the petitioner, Ronald John Williams,

together with fourteen others, was indicted by the Grand Jury

for the Western District of Washington. On February 27, 1979,

a superseding indictment [R. 317)1 was returned. The superseding

indictment was fifty-four pages long and contained seventeen

counts. It charged offenses under 18 U.S.C. § 1962 (commonly

known as the RICO statute) and a series of underlying predicate

federal and state offenses dealing with arsons, extortions,

illegal gambling, obstruction of justice and mail frauds connected

with the operation of taverns in Pierce County, Washington.

Ronald John Williams was charged, together with various

of the other defendants in various counts, in thirteen of the

seventeen counts. In Count I (R. 317, pages 1-29) he was charged

with conspiracy to participate in the affairs of a racketeering

enterprise (18 U.S.C. § 1962(d)). In Count II (R. 317, pages

29-38) he was charged with the substantive offense of violating

the RICO statute (18 U.S.C. § 1962(c)). Counts III through VI

1 In this petition, "R" refers to the Record on Appeal;

"RC" refers to the Record on Appeal using N.D. California pagina-

tion; "T" refers to the transcript of the trial; "Ex" refers to

Exhibits as marked by the parties.

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(R. 317, pages 38-42) charged him with extortionate interference

with interstate commerce (18 U.S.C. §§1951 and 2). Counts VII

and VIII charged him with obstructing a criminal investigation

(18 U.S.C. §§ 1510 and 2). Countx Ix and X charged him with

violating the gambling laws of the state of Washington (18 U.S.C.

§§ 1955 and 2). Count XI charged him with conspiracy to obstruct

law enforcement (18 U.S.C. § 1511). Counts XIII and XIV charged

him with mail fraud (18 U.S.C. §§ 1341 and 2).

Petitioner was found guilty of all these offenses and

was sentenced (R. 486) to twenty years imprisonment on Counts

I and II and five years imprisonment on the remaining counts.

Imprisonment terms as to Counts II and III were to run consecu-

tively with all other terms running concurrently. In addition

he was fined $152,000.00, assessed court costs, in solido, with

three other defendants of $66,485.05 and his interest in his

tavern business, known as Mr. Lucky's was forfeited to the

government pursuant to 18 U!S-C. § 1963(a).

B. FACTUAL BACKGROUND

The evidence developed at trial relative to this

petitioner and the issue posed herein is set forth below.

During the year 1978 and for some time prior thereto

petitioner had owned and operated two businesses in Pierce County,

Washington. The first was the Carbone Bail Bond Co. (purchased

from co-defendant John J. Carbone); the second was a combination

tavern and card room called, in 1978, “Mr. Lucky's". The tavern

had been previously called in years past "The Exit" and "The

Back Door Disco".

Ownership interests in other taverns, discos and restau-

rants in Pierce County during the years 1971 (and prior) through

1978 were also held by co-defendants Frank J. Mazzuca, John J.

PETITION FOR WRIT OF CERTIORARI - 3 LAW OFrices

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Carbone and Joseph M. Carbone.

In 1975 co-defendant George V. Janovich was elected

sheriff of Pierce County, Washington. With Janovich as their

ally, the government at trial satisfied a jury that petitioner

and the other defendants sought to control the tavern business

(especially that portion of it that featured topless dancers)

in Pierce County by illegal means including attempted murder,

arson, extortion and bribery. Illegal gambling was promoted.

Violence was used against the persons and property of others

who were suspected of being informers. In addition taverns

owned by the defendants were burned by them in order to fraudu-

lently collect on insurance policies.

In its superseding indictment (R. 317) the government

charged petitioner in Counts I and II with conspiracy to partici-

pate in and actual participation-in the affairs of an enterprise,

the activities of which affected interstate commerce, through

a pattern of racketeering activity in violation of Title 18

U.S.C. §§ 1962(c) and (d). The nature of the enterprise and

its racketeering activities were charged as follows:

"2. The enterprise, as defined in Title 18,

United States Code, Section 1961(4), was a group

of individuals associated in fact, although not

a legal entity, for the purpose of controlling

and attempting to control the tavern business in

and around Pierce County, Washington, by making

and retaining profits via acts and threats involving

murder, arson, bribery, extortion and illegal

gambling, mail fraud, and by retaliating with

violence against the person and property of per-

sons who they suspected of providing information

to criminal investigators.

3. It was a part of the conspiracy that

said defendants and others would conduct the

affairs of the said enterprise through a pattern

of racketeering activity as defined in Title 18,

United States Code, Section 1961(5), through

multiple acts and threats involving murder, arson,

and bribery in violation of the laws of the State

of Washington, and through multiple acts and

threats indictable under Title 18, United States

Code, Section 1951 (relating to extortionate

PETITION FOR WRIT OF CERTIORARI - 4

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interference with commerce); Title 18, United

States Code, Section 1503 (relating to obstruction

of justice) Title 18, United States Code, Section

1510 (relating to the obstruction of a criminal

investigation), Title 18, United States Code,

Section 1955 (relating to the prohibition of

illegal gambling businesses), Title 18, United

States Code, Section 1511 (relating to the obstruc-

tion of state and local law enforcement), and

Title 18, United States Code, Section 1341

(relating to mail fraud)." (R. 317, pages 2-3)

At the close of the government's case in chief all

counsel joined (T. 6516; 6522-3) in argument to dismiss Counts

I and II on the grounds that the association of petitioner and

the other defendants was not an "enterprise" within the meaning

of the RICO statute. (R. 317) The motion was denied. (T. 6717)

Bak «

REASONS FOR GRANTING THE WRIT

THERE IS A CONFLICT IN THE CIRCUIT COURTS OF APPEAL

OVER WHETHER THE TERM "ENTERPRISE" INCLUDFS ILLEGI-

TIMATE AS WELL AS LEGITIMATE ASSOCIATIONS.

The instant case was decided by the Ninth Circuit on

the basis that an "enterprise" under RICO could be a wholly

illegitimate one. In so deciding it based its opinion on its

previous decision in United States v. Rone, 598 F.2d 564 (9th

Cir. 1979). Other circuits have also held that RICO so applies.

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

United States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978}, cert.

den. 441 U.S. 933 (1979); United States v. Elliott, 571 F.2d

880 (Sth Cir. 1978), cert. den. 439 U.S. 953 (1978); United States

v. Altese, 542 F.2d 104 (2nd Cir. 1976), cert. den. 429 U.S. 1039

(1977).

Other circuits, however, have taken the opposite position

PETITION FOR WRIT OF CERTIORARI - 5

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and have held that the term "enterprise" refers only to legitimate

enterprises. See Unites States v. Turkette, 632 F.2d 896 (lst

Cir. 1980); United States v. Anderson, 626 F.2d 1358 (8th Cir.

1980), cert. den. U.S. (2/23/81); United States v.

Sutton, 605 F.2d 260 (6th Cir. 1979), petition for rehearing en

banc granted (Nov. 7, 1979).

On January 26, 1981, this Court (under cause number

80-808) granted certiorari in United States v. Turkette, 632

F2d 896 (lst Cir. 1980) on precisely the same issue as is posed

in this petition.

This Court has previously stated that RICO "seeks to

prevent the infiltration of legitimate business operations

affecting interstate commerce by individuals who have obtained

investment capital from a pattern of racketeering activity."

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

The position taken at all times in this matter by the

petitioner was that the association between himself and the

other defendants was one totally without legitimacy. The conflict

between the circuits and the Court's granting of certiorari

in United States v. Turkette, supra, make it doubly appropriate

that the petition be granted.

In its decision the Ninth Circuit stated that the enter-

prise here possessed some qualities of legitimacy (see pages

7-9 of opinion, Appendix B). It is respectfully submitted that

this is erroneous.

First of all, the indictment charges an illegitimate

enterprise.

Secondly, the jury was instructed that “the alleged

group of co-conspirators termed the enterprise ... means persons

who form an association by virtue of their concerted criminal

activities..." (CR. Cal. 187, Insturction No. 23, paragraph 2).

PETITION FOR WRIT OF CERTIORARI - 6

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While the petitioner did operate a tavern and, obviously,

while a tavern can be a legitimate business, the government

amply proved it was not in this case. The petitioner was

convicted in Counts XIII and XIV of mail fraud in connection

with the arson of his own tavern, then known as "The Exit.”

Finally, the government successfully had the tavern

(now known as Mr. Lucky's) forfeited to it under 18 U.S.C. §

1963(a) (2).

Neither the ownership nor the operation of the tavern

were legitimate. Even if so it is the association of the

defendants as charged which constitutes the illegal aspect of

the case and not whether the simple operation of a business can

be or was legitimate.

IV.

CONCLUSION

For the reasons above stated a Writ of Certiorari

should issue to review the judgment of the Court of Appeals

for the Ninth Circuit.

Respectfully submitted,

ANTHONY SAVA

Counsel for Petitioner

615 Lyon Building

Seattle, Washington 98104

Telephone: (205) 682-1882

PETITION FOR WRIT OF CERTIORARI - 7

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OFFICE OF THE CLER

APPENDIX B SUPREME COURT, US

Decision below of the United States Court of Appeals

for the Ninth Circuit, United States of America v. John Joseph

Carbone, et al.

APPENDIX B l & ONLY

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SSeEIsreRERRS

FILED

IN THE UNITED STATES COURT OF APPEALSQCT 6 1952

FOR THE NINTH CIRCUIT RICHARD H. DEANE

CLERK, US COURT OF FFFLALS

UNITED STATES OF AMERICA, )

) No. 79-1549

Plaintiff-Appellee, ) No. 79-1567

) No. 79-1550

vs. ) No. 79-1551

) No. 79-1552

JOHN JOSEPH CARBONE, RONALD JOHN ) No. 79-1537

WILLIAMS, FRANK JULIUS MAZZUCA, ) No. 79-1536

GEORGE V. JANOVICH, JOSEPH M. )

CARBONE, RICHARD FRANCIS ) DC# CR-78-97T (Seattle)

CALIGURI and LAMONT ARNOLD ) DC# CR-79-68M (S. F.)

ZEMEK, )

)

Defendants-—Appellants. ) OPINION

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.

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 "enterprise", the

tavern business of Pierce County, Washington, through a

pattern of racketeering. 18 U.S.C. § 1962(d).

The alleged racketeering activities included acts

*Of the District of Southern California

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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).

FACTS

* The mass arrests of defendants in November 1978

marked the culmination of a federal undercover operation

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, Mazzuca, John Carbone, and Joe Carbone had

ownership or management interests were destroyed by fire.

V/ All were insured. There was evidence that, prior to

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the fires, the establishments had been experiencing poor

business, 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 « tablishments of competitors in the tavern,

disco ord topless dancing business. 2/ Because local law

enforcement officers were unsuccessful in apprehending the

perpetrators, the federal Bureau of Alcohol, Tobacco, and

Firearms (ATF) began a joint investigation of the tavern

fires with the sheriff'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." Thereafter, the FBI and ATF

conducted an undercover operation,

After his arrest in April 1978, defendant Michael

Valentine agreed to cooperate with the ATF. Thereafter, the

government recorded conversations between Williams and

Valentine in which Williams admitted responsibility for

arranging the attempted assassination of a state liquor

control board supervisor responsible 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 of

motive. Three taverns in which Williams and the Carbones had

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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

dissatisfaction 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. Gambling included blackjack and pot limit poker

games illegal under state law.2/

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 sheriff's

office. Mazzuca 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 aasaulted 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

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with the FBI and record conversations with Carbone.

In the fall of 1978 the FBI was also able to

infiltrate 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 contact,

giving the number for Vista Auto Sales. John Carbone, Joe

Carbone and Williams were observed listening for varying

periods to this phone conversation. Caliguri met several

times with the bomber to discuss details. ;

On November 28, 1978, at the time the final

telephone contact was expected at Vista Autos, agents

arrested John and Joe Carbone and Williams on the premises.

The remaining defendants were apprehended 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 ether, formed an important part of the

government's case. 4/

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After a three month trial, 3/ the jury acquitted

defendant 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. 5/

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).

Finally, RICO requires a "pattern" of racketeering

activity: at least two acts of racketeering committed 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

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associated with an enterprise from conducting its affairs

through racketeering activity.2/ Count I charged each

appellant with a conspiracy to violate this subsection under

18 U.S.C. § 1962(d). The indictment alleged 107 overt acts

in furtherance of this conspiracy.

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 alléged

operations were wholly illegitimate, and therefore outside

the purview of RICO which evinces Congressional concern with

criminal infiltration of legitimate 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, 2/ this is the

prevailing statutory interpretation.22/

co feo Nt 8 Rn fe BS WNW

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 economic 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 recognized." 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.

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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 prejudicial 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

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PRESSELRERERRER<SSES BRE KE Ree

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 vy. 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 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 incriminating

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 vy, 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 (uth Cir.), cert. denied,

439 U.S. 865 (1978). Relevant facteurs include the nature of

the

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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 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

successfully 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.

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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 relationship among participants

organized in a hierarchical pattern.

The allegedly 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 provide a rim sufficient to

connect the various spokes of a single conspiratorial wheel,

cseoeoenxreaages. 6&6 WN

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 conspiracies 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 1363.1)/

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.22/

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-

Villalvazo, 620 F.2d 744 (9th Cir., 1980). Admission of a

co-conspirator's statement is predicated upon independent

2 proof of defendant's participation, however. See Ped.R. Evid.

3 801 (d) (2) (BE).

4 Two objections are raised here. Pirst, Janovich

5 argues that a pretrial determination of admissibility is

6 required. Second, John Carbone asserts there was

7 insufficient prima facie proof of his involvement,

independent of the co-conspirators’ statements.

9 The district court provisionally admitted the

10 co-conspirators’ statements subject to establishing the

11 requisite independent proof. Thereafter, it expressly found

12 that a prima facie case of involvement had been established

13 as to the appellants. Janovich argues that a pretrial

14 determination of admissibility is required.

‘ 15 This court has held repeatedly that the order of

16 proof is within the sound discretion of the trial court.

17 United States v. Sandoval-Villalvazo, Supra. The procedure

18 of conditionally admitting co-conspirator's statements

19 subject to later motions to strike is well within the court's

20 discretion. United States v. Batimana, 623 F.2d 1366, 1369

21 (9th Cir. 1980). Finding no abuse of discretion, we uphold

22 the court's provisional admission of the statements. L:/

23 The test for admission of co-conspirators'

24 statements is whether there is “sufficient, substantial

25 evidence” apart from them to establish a prima facie case of

, 26 conspiracy and defendant's slight connection therewith.

P 77 United States v. Weiner, 578 F.2d 757, 768-69 (9th Cir.),

28 cert. denied, 439 U.S. 981 (1978). Although John Carbone

29 does not challenge the existence of a conspiracy, he does

30 assert there was insufficient independent evidence linking

. 31 him to the conspiracy.

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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, 14/ He offered no explanation

by evidence or argument for these admissions.

Carbone's reliance upon United States v. Diecidue,

603 F.2d 535 (Sth 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 vse

“built of supposition on a foundation 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.

b. “Sufficiency of Evidence

John Carbone, Joe Carbone, Zemek, Caliguri, and

Janovich challenge directly the sufficiency of the evidence

under Count 1,15/ 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 defendants were guilty beyond

@ reasonable doubt. United States v. Price, 623 F.2d 587,

591 (9th Cir. 1980),

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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 activities. Carbone also told of

"unloading" money on politicians 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 conversations, Zemek and

Williams indicated they perceived 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. mi

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,

Vista Autos, an acknowledged Carbone operation,

served as the communication center for the planned bombing of

Night Moves. John was observéd 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 conspiracy 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 associatic», Both were

insured together for two establishments, Flitter In and Back

Door Disco. Williams referred to Joe as his "partner" in

topless clubs.

Prior to taking retaliatory actions against a

competitor, Williams stated he asked Joe to verify that the

"target" did not operate under the protection of an alleged

Mafia figure in an adjoining county. John Carbone frequently

referred to “Joe and Ron [Williams]" when speaking to

Weinstein about his business affairs. We reject Joe

Carbone's “mere association" argument,

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The government Produced evidence of Joe's

involvement in "torching” a tavern owned by his father which

was experiencing bad business, 16/ His topless dancing

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 knowledge of many details

belies this Purported defense.

On tape Zemek admitted involvement in a firebombing

of the Night Moves tavern and his responsibility 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, ae

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-9-, United States y. 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).

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zemek's assertion that he was unaware of the scope of the

enterprise and did not agree to conduct its affairs ignores

his active participaticn 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,

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 vaeden

experiencing bad business. Shortly after that directive, the

tavern unk Geakeulies 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.2/

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 introduction and meeting

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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 Willians

and an assistant attorney general directing the state's

organized crime unit. On tape, Williams revealed that

Janovich had warned him of federal "heat" in the spring of

1978.

The indictment assigned Janovich both protection and

harassment roles. There was some evidence of his involvement

in an “emphasis patrol” of an enterprise competitor,

culminating in visits by fifteen law enforcement 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 awareness 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 protection. Janovich also accepted

$1,300 from the undercover agent Posing as the buyer of Mr.

Lucky's.

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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 explanation 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 witnesses). 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).

There was sufficient evidence to support the

conviction of each appellant under count 1.28/ We now

examine the other challenged counts.29/

HOBBS ACT

Count 6 charged Zemek, Caliguri, John and Joe

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

attempting to obstruct interstate commerce by extortion to

obtain the goodwill and customer revenues of a competing

tavern, the "Night Moves", owned by Ron Chase. The elements

of a Hobbs Act violation are extortion and a nexus with

interstate commerce. Stirone v. United States, 361 U.S. 212

(1960).

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 cf

official right." 18 U.S.C. § 1951(b)(2). The alleged

forceful acts include damaging the tavern with a Molotov

cocktail in November 1977; destruying Night Moves by fire in

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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 property. All five ;

appellants argue the evidence was insufficient. 22/

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. Nathaway, 534

F. 2386, 395 (lst 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).

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The trial court instructed the jury using the

following 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 exception

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 Cir. 1980)

(inducing payments to avoid county business tax).

Appellants expressly communicated their purpose when

aman, later identified as Caliguri, broke into the Chases’

home, bound the occupants, and threatened to kill them if

they did not give the Chases a message to "leave town." He

warned that it was futile to reopen Night Moves because it

would "come down again". The Chases had rebuilt the tavern

after it was destroyed by a fire arranged by Williams in

February 1978.

3. Consent

Appellants’ argument that the convictions must be

reversed because Chase was not induced to give up property

"with his consent" ignores the fact that count 6 charged

attempted extortion. The jury was so instructed.

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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. 180U.S.C. § 2. The jury was instructed on the

complicity theory. Conviction as an aider and abettor

requires proof the defendant willingly associated himself

with the venture and participated therein as something he

wished to bring about. See United States v. Groomer, 596

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

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bomber, agents found notes with the home phone numbers of

John and Joe Carbone and Williams.

Ron Chase testified that Joe Carbone's Flitter In

and Night Moves were two of only four topless dancing taverns

in the county. The two remaining operations were also owned

by Carbone. 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 conversation he

revealed his awareness of the Chases rebuilding efforts after

the February 1978 arson and of the efforts to drive Chase out

of business.

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

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November 1978 Williams solicited help from an undercover

agent in finding a bomber to destroy Night Moves.

This evidence more than satisfied the government's

burden to prove active participation and willful association

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

investigation 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 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 preven’

the communication of information

relating to a violation of any criminal

statute of the United States by any

person to a criminal investigator; or

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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 disjunctively, 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 corroborating acts.

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 (Sth Cir. 1975) (defendant knew or

"reasonably believed" person had information).

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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 instructed 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

convictions must be reversed because the statute does not

proscribe retaliatory acts. Threats and intimidation may

serve two purposes: (1) deterring future communications; or

(2) retaliating for past communications. united States v.

Koehler, 544 F.2d 1326, 1329 (Sth Cir. 1977). While threats

intended to thwart future communications clearly will support

a conviction under § 1510, United States v. Koebler, supra,

the Fifth Circuit has held that retaliatory threats will not

support conviction. United States v. San Martin, 515 F.2d at

320.

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,

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The evidence supports an inference that one purpose

was to interfere with future communication of information.

Thus, even were we to apply the Fifth Circuit's distinction

between retaliation and deterrence, the convictions may be

sustained. 21/

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 1510 does not require “an

investigation be taking place" concurrently with the

proscribed 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 communications

to federal investigators.22/.

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 conversations, 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 violation of 18

U.S.C. § 1955. Count 9 involved pot limit poker and count 10

involved blackjack. Count 11 charged them and Janovich with

a concurrent conspiracy to obstruct state law enforcement to

facilitate this gambling business. 18 U.S.C. § 151ll.

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 substantially

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 .23/

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/

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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 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.22/ 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 game:

a dollar per pot charge plus a percent of each pot. House

dealers would "rake off" the pot. The operation 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. 26/ The court properly instructed

the jury and did not err in refusing to give appellants’

Proposed instruction.

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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 bet in two hours. An undercover agent may observe and

testify to the action. Cf. United States v. Graham, supra.

The record provides sufficient foundation for the estimate.

In addition, Williams bragged that $2,000 profit was possible

on a good night. Finally, one of the operators testifed to

action of "a couple thousand" per night.

2. Black Jack and Pot Limit Poker

Neither Mazzuca nor Williams challenge the

sufficiency 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 gambling 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 gambling

business which Williams and Mazzuca operated in the rear of

Stan & Ollie's.2/

Surveillance agents observed Williams consulting

with John Carbone before making major decisions. Williams

excused himself midway through a preliminary discussion

regarding the sale of Mr. Lucky's. He drove to John

"acbone's Vista Autos and briefly conferred. Upon his return

2 Me. Lucky's, Williams invited the undercover agents to an

illegal blackjack game to be held that evening.

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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 insufficient 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 conspiracy to obstruct

state law enforcement with intent to facilitate an illegal

gambling business. 29/ 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 introductions to political

figures who could guarantee no prosecutions or arrests for

illegal gambling. Discussions of the protection aspect of

the gambling business ensued. When a gambling operator

complained about the necessity of “contributing" $100 to

Janovich, Mazzuca said he had given $300. Ina meeting with

the undercover agent, Janovich expressed satisfaction that

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

Mazzuca's argument that he was not a knowing participant 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.

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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 complicity. 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 detriment of

enterprise operations were apparent in taped conversations.

The evidence showed he was a member of the conspiracy to

obstruct state gambling laws, as opposed to merely knowing

and associating with the co-conspirators. See United States

v. Crockett, 514 F.2d 64, 75 (Sth 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.

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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 available. He bragged

of his experience in arranging protection, 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

sheriff's ranking subordinates. He told Weinstein the

sheriff had removed a detective from active duty because he

was "nosing around" too much. He frequently 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 necessitating use of

the mails. 29/ 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).

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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 nail 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).

There was evidence that Jéhn 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 business was bad at

the Black Knight and asked Caliguri to “take care of it."

36 :

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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 proceeds, totalling

$33,000, were used to pay John's note for the purchase,

There was sufficient proof of John Carbone's

financial interest in the tavern and the insurance proceeds.

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 opportunity 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 insurance 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.

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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 his 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 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.22/

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 testimony

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. "

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Williams" argument against forfeiture of his

interest in Mr. Lucky's tavern pursu?nt to 18 U.S.C. §

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

conviction is affirmed.

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

mandate will issue at once. Release on bail as to any

defendant is revoked now.

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FOOTNOTES

The Players (1972); The Exit (1976); Black Knight

(1977).

The 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.

Under Washington law wagers are restricted to a

$5.00 maximum. Wash. Rev. Code § 9.46.020(20) (£); 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. See §§ 9.46.020(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).

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.

§ 25ll1(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. Id. Thus,

even Or, state statutes may require the consent of

both parties, admissibility in federal court is

determined by federal law. United States v. Testa, 548

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

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(cont'd):

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 incorporated into

federal racketeering and gambling statutes, violation of

state law is not the sole element of the charged federal

offenses. 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 (lst

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 constitution and federal law.

The indictment was returned on December 8, 1978 in

the Western District of Washington. On January 26, 1979,

and February 9, 1979, the trial court granted motions for

change of venue and the case was ultimately transferred

to the Northern District of California, the Honorable

Morell E. Sharp of the Western District of Washington,

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

1979, and concluded with verdicts on June 19, 1979.

John Carbone and Williams received multiple

concurrent sentences 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 concurrently. 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 sentences. 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 sentences 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.

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.

7/ 18 U.S.C. § 1961(1) provides:

"Racketeering activity” means (A) any sct or

3 threat involving murder, kidnaping, gambling,

arson, robbery, bribery, extortion, or dealing

4 in narcotic or other dangerous drugs, which is

chargeable under State law and punishable by

5 imprisonment for more than one year; (B) any

act which is indictable under any of the

6 following provisions of title 18, United States

Code: Section 201 (relating to bribery),

7 section 224 (relating to sports bribery),

sections 471, 472 and 473 (relating to

8 counterfeiting), section 659 (relating to theft

from interstate shipment) if the act indictable

9 under. section 659 is felonious, section 664

(relating to embezzlement from pension and

10 welfare funds), sections 891-894 (relating to

extortionate credit transactions), section 1084

11 (relating to the transmission of gambling

information), section 1341 (relating to mail

12 fraud), section 1343 (relating to wire fraud),

section 1503 (relating to obstruction of

13 justice), section 1510 (relating to obstruction

of criminal investigations), section 151l

14 (relating to the obstruction of State or local

} law enforcement), section 1951 (relating to

15 interference with commerce, robbery, or

extortion), section 1952 (relating to

16 racketeering), section 1953 {relating to

interstate transportation of wagering

17 paraphernalia), section 1954 grees to

unlawful welfare fund payments), section 1955

18 (relating to the prohibition of illegal

gambling businesses), sections 2314 and 2315

19 (relating to interstate transportation of

stolen property), sections 2341-2346 (relating

20 to trafficking in contraband cigarettes),

sections 2421-24 (relating to white slave

21 traffic), (C) any act which is indictable under

title 29, United States Code, section 186

22 (dealing with restrictions on payments and

loans to labor organizations) or section 501 (c)

23 (relating to embezzlement from union funds), or

(D) any offense involving fraud connected with

24 a case under title 11, fraud in the sale of

securities, or the felonious manufacture,

25 importation, receiving, concealment, buying,

selling, or otherwise dealing in narcotic or

26 other dangerous drugs, punishable under any law

of the United States;

: 27

° 29

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SeERREREBR

18 U.S.C. § 1962(c) provides:

employed by or associated with any enterprise

engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the

conduct of such enterprise's affairs through a

pattern of racketeering activity or collection

of unlawful debt. .

See, e.g., United States v. Aleman, 609 F.2d 298, 311

(7th Cir. 9), 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.

Sentede 100 S.Ct. 2152 (1980) (Swygert, J., dissenting);

United States v. Altese, 542 F.2d 104, 107-110 (2d Cir.

1976), cert. denied, 429 U.S. 1039 (1977) (Van

Graafeiland, J., dissenting). Bradley, Racketeers,

Congress & the Courts: An Analysis of RICO, 65 Iowa

L. Rev. 837, 892-93 (1980); Note, 65 Va. L. Rev. 109

(1979); Note, 27 De Paul L. Rev. 89, 105, 112 (1977).

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, 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).

Pe ee ed

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12/

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

conspiracies caused no harm or prejudice to the

defendants and, as such, is not reversible

error.

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

Cir.), cert. denied, 439 U.S. 953 (1978), the Fifth

Circuit construed the enterprise concept in RICO as

circumventing limitations imposed by conventional

conspiracy doctrine. 571 F.2d at 900. The court

described RICO as supplanting the common objective

rationale of conspiracy law with the enterprise concept

whereby criminal association itself could constitute an

enterprise.

It has been noted that the language and legislative

history of RICO do not expressly indicate an intent to

rework basic conspiracy law as related to organized

crime. See Note, 65 U. Va. L. Rev. 109 (1979). See also

United States v. Anderson, _F.2d _—s— (8th Cir., Nos.

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

conspiratorial objective herein is not as ill-defined as

in Elliott. A single overall agreement can be identified

under conventional conspiracy doctrine,

oo @ ss @ @ €&. &@”

13/

Janovich 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 mandatory pretrial

determination. We note that even under the Fifth

Circuit's asserted preference, the practicality of a

pretrial determination is questionable here.

Carbone told Weinstein that he could describe, in

“very authentic" 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.

Although 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.9., 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 racketeering. “Pattern” is expressly defined as two

Or more predicate offenses. 18 U.S.C. § 1961(1) lists

several acts of racketeering including violation of 18

U.S.C. § 1511. 18 U.S.C. § 1961(1)(B). C£&. United

States v. Weisman, F.2d Ss (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

unconstitutional, citing Griswold v. Connecticut, 381

U.S. 479 (1965). Absent development of potig bey Bg

some relation to the facts of this case, we decline to

hypothesize constitutional defects,

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16/

17/

See pp. 35-38, infra.

Caliguri 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,

Mazzuca 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 consideration in this process is whether the

other acts are closely connected 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.

Only Williams and John Carbone were sentenced to

terms to be served consecutively with the count 1

sentence. See note 6 supra. As to the Carbones,

Williams and Mazzuca, the practical effect of reversal on

any of the remaining counts would be a reduction in fines.

The court imposed concurrent sentences and assessed

no fines against Janovich, Zemek, and Caliguri.

Nevertheless, the nature of the charges and the

complexity of the case compel us to examine the

challenges as to the remaining counts rather than invoke

the concurrent sentence doctrine.

vii

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20/

Caliguri also asserts no interstate commerce nexus

was established. The effect on interstate commerce need

only be de minimis. 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. dénied, 405 U.S. 1070 (1972).

The San Martin court stated:

A literal reading of the provision of the

statute under consideration 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 deterrence 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 addresses

actual injury "on account of" the giving of information,

The instant case involved infliction of bodily injury,

not merely the making\of a threat.

Although the statute requires that the intended

recipient of the communications be an "investigator" as

defined under the act, (18 U.S.C. § 1510(b)), proof of

that element is not challenged.

Count 9 of the indictment alleged operation of the

pot limit poker games from May 23, 1978 to gp | 1, 1978.

As to this count, the jury was instructed on the 30 day

option,

viii

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fweeeea See e ees ste szgtee st ss

24/ Such an argument would be unavailing in light of

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

anc).

25/ 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.q., United

States v. Mattucci, 502 F.2d 883, 886-87 eth Cit. TOTES.

T5)eye States v. Nettles, 570 F.2d 547, 550 (Sth Cir.

26/ Mazzuca and Janovich also object to the court's

allegedly prejudicial limitation of cross-examination of

agent Early. Early observed the action and testified as

to the betting. A review of the record indicates that

the stricken questions, propounded by Mazzuca's counsel,

addressed the issue of net profit, not side betting. It

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

the area of inquiry. Indeed, co-defense counsel

requested a mid-trial instruction clarifying that net

profit is not to be equated with gross revenue.

27/ One 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.

28/ 18 U.S.C. § 1511 provides in part:

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

to conspire to obstruct the enforcement of the

criminal laws of a State or political subdivision

thereof, with the intent to facilitate an illegal

gambling business if --

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

effect the object of such a conspiracy;

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

Or employee, elected, appointed, or otherwise,

of such State or political subdivision; and

(3) one or more of such persons conducts,

finances, manages, supervises, directs or owns

all or part of an illegal gambling business.

Williams was also charged under count 11 but does not

challenge the sufficiency of the evidence.

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29/

30/

‘18 U.S.C. § 1341 provides:

Whoever, having devised or intending to devise

any scheme or artifice to defraud, or for

obtaining money or property by means of false

or fraudulent pretenses, representations, or

Promises, or to sell, dispose of, loan,

exchange, alter, give away, distribute, supply,

or furnish or procure for unlawful use any

counterfeit or spurious coin, obligation,

security, or other article, or anything

represented to be or intimated or held out to

be such counterfeit or spurious article, for

the purpose of executing such scheme or

artifice or attempting so to do, places in any

post office or authorized depository for mail

matter, any matter or thing whatever to be sent

Or delivered by the Postal Service, or takes or

receives therefrom, any such matter Or thing,

Or knowingly causes to be delivered by mail

according to the direction thereon, or at the

Place at which it is directed to be delivered

by the person to whom it is addressed, any such

matter or thing, shall be fined not more than

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

or both.

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, ieee, Oe ee

(9th Cir., No. 78-2794, April 29, 1980). Such

instructions 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.1l1 (9th

Cir. 1974), cert. denied, 419 U.S. 1120 (1975).

FILED

IN THE UNITED STATES COURT OF APPEALS

JAN 7 1981

RICHARD H. DEANE

CLERK, U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, NO. 79-1550

FRANK JULIUS MAZZUCA,

Defendant-Appellant. ORDER

ee ee ee ee ee ee ee ee ee ee

Before: WRIGHT and SNEED, Circuit Judges.

Judges Wright and Sneed have voted to reject

the petition mand suggestion for a rehearing en bane,

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 rehearing en

banc is rejected.

FPL LOM 3.60 SOM 3287

RECEIVED

80-63 07 MAR 9 1Ys1

APPENDIX C OFFICE OF THE CLERK

SUPREME COURT, U.S.

Judgment and Commitment of the District Court.

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32 | APPENDIX C - 1 & ONLY

LAW OFFices

KEMPTON, SAVAGE & GOSSARD

615 LYON BUILDING

SEATTLE, WASHINGTON 98104

662-1682

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA,

Plaintiff, NO. CR78-97T(S)

Vv.

RONALD JOHN WILLIAMS, JUDGMENT AND COMMITMENT

(Superseding Indictment

Defendant. returned on 02/27/79)

ee eee ee ee ee ee ee

On this 13th day of July, 1979, came the attorney for the

Government and the defendant appeared in person and with his

counsel, Anthony Savage.

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 18, United States Code, Section 1962(d)

(COUNT I), Section 1962{c) (COUNT II), Section 1951 and Section 2

(COUNTS III, IV, V, and VI), Section 1510 and Section 2 (COUNTS

VII and VIII), Section 1955 and Section 2 (COUNTS IX and xX),

Section 1511 (COUNT XI), and Section 1341 and Section 2 (COUNTS

XIII and XIV), as charged in the Superseding Indictment returned

on February 27, 1979, and the Court having asked the setendans

whether he has: anything to say why judgment should not be pro-

nounced, and no sufficient cause to the contrary being shown or

appearing to the Court,

I? £S ADJUDGED that the defendant is guilty as charged and

convicted.

PAGE l beg JUDGMENT AND COMM [TMENT/ UNITED STATS AT TOMNEY

WILLIAMS 10'* FLOOR - UNITES -TaTCS COURTHOUSE |

SEATTLE, Wa niInGcrot

(206.442.7970

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IT IS ADJUDGED that on COUNT I, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of TWENTY (20) YEA™S and fined the

sum of $25,000.00. }

IT IS ADJUDGED that on COUNT II, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of TWENTY (20) YEARS and fined the

sum of $25,000.00. Said sentence on Count II as to imprisonment

only to run concurrently with sentence on COUNT I.

IT IS ADJUDGED that on COUNT III, the doPendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS and fined the sum

of $10,000.00. Said sentence on COUNT III as to imprisonment only

to run consecutively to sentence on COUNTS I and II.

IT IS ADJUDGED that on COUNT IV, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS and fined the sum

of $10,000.00. Said sentence on COUNT IV as to imprisonment only

to run concurrently with sentence on COUNT III.

IT IS ADJUDGED that on COUNT V, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS and fined the sum

of $10,000.00. Said sentence on COUNT V as to imprisonment only

to run concurrently with sentence on COUNT III.

IT IS ADJUDGED that on COUNT VI, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS and fined the sum

of $10,000.00. Said sentence on COUNT VI as to imprisonment only

to run concurrently with sentence on COUNT III.

PAGE 2 - JUDGMENT AND COMMITNENT/

WILLI 5

LIANS UNITEO STATES ATTORNEY

10™ FLOOR - UNITED STATES COURTHOUSE,

SEATTLE, WASHINGTON 98104

970

CONIA A AON ED

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IT IS ADJUDGED that on COUNT VII, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a pericd of FIVE (5) YEARS .nd fined the sum

of $5,000.00. Said sentence on COUNT VII as to imprisonment only

to run concurrently with sentence on COUNT III.

IT IS ADJUDGED that on COUNT VIII, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS and fined the sum

“of $5,000.00. Said sentence on COUNT VIII as to imprisonment only

to run concurrently with sentence on COUNT III.

IT IS ADJUDGED that on COUNT IX, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE .(5) YEARS and fined the sum

of $20,000.00. Said sentence on COUNT IX as to imprisonment only

to run concurrently with sentence on COUNT III.

IT IS ADJUDGED that on COUNT X, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS and fined the sum

of $20,000.00. Said sentence on COUNT X as to imprisonment only

to run concurrently with sentence on COUNT III.

IT IS ADJUDGED that on COUNT XI, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative ee a period of FIVE (5) YEARS and fined the sum

of $20,000.00. Said sentence on COUNT X as to imprisonment only

_to run concurrently with sentence on COUNT III.

IT IS ADJUDGED that on COUNT XIII, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS and fined the sum

of $1,000.00. Said sentence on COUNT XIII as to imprisonment only

to run concurrently with sentence on COUNT III.

PAGE 3 - JUDGMENT AND COMMITMENT/

WILLIAMS UNITED STATES ATTORNEY

1OT™ FLOOR - UNITEO STATES COURTHOUSE *

tINGTON 98104

' 2-7970

oMmWN OA hb WD Be

IT IS ADJUDGED that on COUNT XIV, the defendant is hereby

committed to the custody of the Attorney General or his authorized

representative for a period of FIVE (5) YEARS und fined the sum

of $1,000.00. Said sentence on COUNT XIV as to imprisonment only

to run concurrently with sentence on COUNT III.

IT IS FURTHER ORDERED that costs of prosecution are assessed

against the defendant. The United States is ordered to file a bill

of costs within ten (10) days of this judgment. The defendant will

file any objections 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 8, 1978, is hereby dismissed on

the motion of the United States Attorney.

IT IS FURTHER ORDERED that the Clerk deliver a certified

copy of this Sided and commitment 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. ,

; -. Aid: 4 *. Fi

UNITED STATES DISTRICT JUDGE

Presented ‘by: es

A Loy i Fmd

JOHN C. MERKEL

United States Attorney

i ote” pi)

PAGE 4 - JUDGMENT AND COMMITMENT/

WILLIAMS UNITED STATES ATTORNEY

10 '™ FLOOR - UNITED STATES COURTHOUSE .

SEATTLE. WASHINGTON 98104

129N&. 442.7970

;

: °

;

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xo. $0-6307

IN THE

SUPREME COURT FOR THE UNITED STATES

TERM 1980

RONALD JOKN WILLIAMS

Petitioner

vs.

UNITED STATES OF AMERICA

Respondent.

APPENDICES

Pursuant to Rule 21.1, the following appendices are

submitted separately:

1. Appendix A (18 U.S.C. §§ 1961 and 1962)

2. Appendix B (decision of the Court of Appeals below)

3. Appendix C (Judgment and Commitment of the District

Court below)

APPENDICES... 1

Law orrices

KEMPTON, SAVAGE & GOSSARD

e:'8 LYON Bunomne

SEATTLE. WASHINGTON 961060

682-1802

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APPENDIX A

(18 U.S.C. §§ 1961 and 1962)

$1961 Definintions

As used in this chapter -

(1) “racketeering activity: means (A) any act or threat

involving murder, kidnapping, 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 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

interestate shipment) if the act indictable under section

659 is felonious, section 664 (relating to embezzlement

from pension and welfare funds), section 391-94 (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 151ll

(relating to obstruction of State or local law enforce-

ment), section 1951 (relating to interference with

commerce, robbery or extortion), section 1952 (relating

to racketeering), section 1953 (relating to interstate

transportation of wagering paraphenalia), section 1954

(relating to unlawful wlfare fund payments), section

1955 (relating to the prohibition of illegal gambling

business), sections 2314 and 2315 (relating to inter-

state transportation of stolen property), sections 2341l-

2346 (relating to trafficking in contraband cigarettes),

sections 2321-24 (relating to white slave traffic),

States Code, section 186 (dealing with restrictions on

payments and loans to labor organizations) or section

501 (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,

concealment, buying, selling, or the felonious manu-

facture, 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 Commonwealth of Puerto Rico,

any territory or possession of the United States, any

political subdivision, or any department, agency, or

instrumentality thereof;

(3) “person” includes any individual or entity capable

of holding a legal or beneficial interest in the property;

APPENDIX A - 1 LAW oFFrices

KEMPTON. SAVAGE & GOSSARD

616 LYON BUILDING

SEATTLE, WASHINGTON 96104

682-1802

o On oD FT FSF WO DH &

onvr fo nN fF WBHeeYH CFC BO DONA &@B WD. CO

(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;

(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 impirsonment) 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 sub-

division thereof, or which is unenforceable under State

or Federal law in whole or in part as to prinicipal 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

investigator so designated by the Attorney General and

charged with the duty of enforcing or carrying into

effect this chapter; i

(8) “racketeering investigation" means any inquiry

conducted by any racketeering investigator for the

puspose of ascertaining whether any person has been

involved in any violation of this chapter [18 USCS

§§ 1961 et seq.] 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 either the investigative provisions of

this chapter or the investigative power of such depart-

ment 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 patter of

racketeering activity or through collection of an unlawful

debt in which such person has participated as a prinicipal

within the mearing 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

LAW OoOFrrices

APPENDIX A - 2 KEMPTON, SAVAGE & GOSSARD

618 LYON BYUILOING

SEATTLE, WAGHINGTON 96104

662-1862

oon DO HO hh WwW DH =

my A yo DH DD BD BP DP | | —|§ | S| = SS —

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which is engaged in, or the activities of which affect, inter-

state 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

thig sebsection if the securities of the issuer held by the

purchaser, the members of his immediate family, and his or

their 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 per cent 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.

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

of racketeering activity or through coliection 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.

associated with any enterprise engaged in, or the activities

of whch affect, interstate or foreign commerce, to conduct

or participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity

or collection of unlawful debt.

(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.

APPENDIX A - 3

LAW OFFices

KEMPTON, SAVAGE & GOSSARD

615 LYON BUILDING

SEATTLE. WASHINGTON 96104

662-1682

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ss -. Co FF Oo uw’ TS OC &, G2 Be C§ Ce Wess &® 6 - Ss

RECEIVED

MAR 9 1481

OFFICE OF THE CLERK

SUPREME COURT, U.S.

80-6307

IN THE

SUPREME COURT OF THE UNITED STATES

TERM 1980

RONALD JOHN WILLIAMS

Petitioner

vs.

\ UNITED STATES OF AMERICA

Respondent.

MOTION FOR LEAVE TO

PROCEED

IN FORMA PAUPERIS

Petitioner, Ronald John Williams, pursuant to Rule 53 and

18 U.S.C. § 3006A(d) (6), asks leave to file the attached Petition

for a Writ of Certiorari to the United States Court of Appeals

from the Ninth Circuit without pre-payment of costs, and to

proceed in forma pauperis.

This motion is supported by the affidavit of the petitioner

submitted herewith and attached hereto.

WHEREFORE petitioner by his undersigned counsel respectfully

prays that this Court grant leave to proceed in the Supreme Court

of the United States in forma pauperis.

DATED this he day of March, 1981.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS - 1

LAW OFFices

KEMPTON, SAVAGE & GOSSARD

615 LYON BUILDING

SEATTLE, WASHINGTON 96104

662-1662

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ee a ee ee eS Or a eae: ae. a ee ee ee ee ee ee ea ee

Pee Oo 8 ON AH e WOAH CVU BHsanrktwonrs =, o

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS - 2

Respectfully submitted,

ANTHONY gy ogy é

Attorney for P tioner

LAW OFFices

KEMPTON. SAVAGE & GOSSARD

615 LYON BUILOING

SEATTLE, WASHINGTON 96104

662-1662

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ee OS eS a > a ee a ee ee ee cee ee ee

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RECEIVED

MAR 9 1981

“—ee..

SUPREME COURT, US.

yn. 80-6307

IN THE

SUPREME COURT FOR THE UNITED STATES

TERM 1980

RONALD JOHN WILLIAMS

Petitioner

vs.

UNITED STATES OF AMERICA

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

STATE OF WASHINGTON )

COUNTY OF KING )

I, Ronald John Williams, being first duly sworn,

depose and say that I am the petitioner in the above-entitled

case; that in support of my motion to proceed to the Supreme Court

of the United States in forma pauperis without being required to

prepay fees, costs or give security therefor, I state that because

of my poverty I am unable to pay the costs of said proceeding

or to give security therefor; that I believe I am entitled to

redress; and that the issues which I desire to present are set

forth in my Petition for Writ of Certiorari submitted herewith.

I further swear that the responses to which I have

made to the questions and instructions below relating to my

ability to pay the cost of prosecuting the appeal are true.

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS - 1

LAW OFFicEs

KEMPTON, SAVAGE & GOSSARD

618 LYON BUILDING

SEATTLE, WASHINGTON 98104

662-1662

o On Dd oO > WY DH &

= oe ie - oO) Ce 82 8 BA ps 6s os ae te. be ee lee le et ae

a -— = @& ws S&S &€ SG Hee Ge oO NH Bo eH & Owe eS

1. Are you presently employed?

a. No.

b. I was last employed in November of 1978. TI do not

remember nor do I have records at my command in which to accurately

recite the amount of salary and wages per month which I received

at that time.

2. Have you received in the past twelve months any

income from a business, profession or other form of self-employ-

ment, or in the form of rent payments, interest, dividends, or

other source?

No.

3. Do you own any cash or checking or savings account?

No.

4. Do you own any real estate, stocks, bonds notes,

automobiles, or other valuable property (excluding ordinary

household furnishings and clothing) ?

a. I have an interest in some real estate which is of

no value to me for reasons set forth below.

5. List the persons who are dependant upon you for

Support and state your relationship to those persons.

None.

By way of explanation to the answers set forth above, I

state as follows: I was arrested in November of 1978 by law

enforcement officers of the United States government and subse-

quently charged with the matters which give rise to my Petition

for Writ of Certiorari. I have remained in custody ever since

because I was unable to post the $1,000,000.00 bail required of

LAW oOFrFrices

AFFIDAVIT IN SUPPORT OF MOTION KEMPTCN, SAVAGE & GOSSARD

61S LYON BUILDING

TO PROCEED IN FORMA PAUPERIS - 2 SEATTLE, WASHINGTON 98104

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i: 2: 28° 22 We Re - ee. Oe ee Ge ee Wee ee oe tee ee ed oe

oS Oo OW & 42 NS & S.C 82: sO RR S @ NW we Ss

me by the United States District Court and subsequently affirmed

by the United States Court of Appeals for the Ninth Circuit.

At the time of my arrest my principal sources of income

were two businesses, to wit: Mr. Lucky's Tavern, located in

Pierce County, Washington, and the Carbone Bail Bond Company,

located in Pierce County, Washington. After my arrest the Carbone

Bail Bond Company ceased doing business inasmuch as no courts

would honor our bonds. As a result of my conviction in the

United States District Court the government has seized and is

seeking to have forfeited to it my other business, Mr. Lucky's

Tavern.

Subsequent to my conviction in the United States District

Court my wife and I dissolved our marriage and she received most

of all of the other properties that the two of us had accumulated

during the period of our marriage.

Subsequent to my conviction in United States District

Court numerous parties have commenced civil lawsuits against me

for damages allegedly suffered at my hands in the course of the

criminal activities for which I stand convicted. One of those

lawsuits is Anderson v. Williams, et al., United States District

Court, Western District of Washington, Civil Cause No. C-79-283T.

In the lawsuit there has been entered a restraining order pre-

venting myself and my former wife from attempting to sell, mort-

gage, hypothecate or in any way endanger the value of any of the

properties that either one of us now possess.

In short, I have no funds. The interest that I have in

my remaining real estate is either subject to forfeiture by the

United States government or subject to a restraining order

entered in a subsequent federal lawsuit.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

AFFIDAVIT IN SUPPORT OF MOTION ‘LAW orrices

TO PROCEED IN FORMA PAUPERIS - 3 KEMPTON, SAVAGE & GOSSARD

615 LYON BUILDING

SEATTLE, WASHINGTON 96104

662-1882

SS. - Ba a: OS 22.28. ae

a eS eS eS ee — — — ee <- e —)

perjury.

SUBSCRIBED AND SWORN to before me this yt day of

March, 1981.

, 1n and @or the State

of Washingtod, residing at Edmonds.

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS - 4

LAW OFFICES

KEMPTON, SAVAGE & GOSSARD

615 LYON BUILDING

SEATTLE, WASHINGTON 98104

602-1662

03 00S

0g 20s

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.