Petition — Mazzuca v. United States

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xo. 80-6309

IN THE

SUPREME COURT FOR THE UNITED STATES

TERM 1980

GEORGE V. JANOVICH

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

MOTION FOR LEAVE TO

PROCEED

IN FORMA PAUPERIS

Petitioner, GEORGE V. JANOVICH, 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 for the Ninth Circuit without pre-payment of costs, and

to proceed in forma pauperis. Petitioner was represented by

Monte E. Hester, as retained counsel in the District Court and

was later appointed to represent the Petitioner under the

Criminal Justice Act, on appeal to the United States Court of

Appeals for the Ninth Circuit. The petitioner proceeded before

the Ninth Circuit Court of Appeals in forma pauperis.

WHEREFORE, Petitioner, by his undersigned counsel,

30 | MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS -1

MONTE E. HESTER

Amomay ot Low

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

respectfully prays that this Court grant leave to proceed in the

Supreme Court of the United States in forma pauperis.

DATED this st day of March, 1981.

RESPECTFULLY SUBMITTED:

MONTE E. HESTER

Attorney for Petitioner

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS -2

MONTE E. HESTER

Aan a Lae

TACOMA, WASHINGTON

206) 272-2157

Maren 5 1991

RECEIVED

MAR 9 19%)

OFFICE OF THE CLERK

SUPREME COURT, U.S.

NO. 80 -630 9

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

GEORGE V. JANOVICH,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONTE E. HESTER

ATTORNEY FOR PETITIONER

1008 South Yakima Avenue

Post Office Box 5366

Tacoma, Washington 98405

(206) 272-2157

MARILYN G. PAJA,

on the brief

= w Nh -

QUESTIONS PRESENTED

1. Whether violation of the restrictive requirements

of the state privacy statute (REVISED CODE OF WASHINGTON CHAP-

TERS 9.73 and 10.79) prohibits admission of tape recording ad-

mitted into evidence in a federal court proceeding where the de-

fendants are charged with state crimes ("RICO", 18 U.S.C. §1962

2. Whether the offenses charged were properly in-

dicted §1962(c) and (da) (RICO) when the prosecution failed to

show that the defendants were associated in a legitimate busi-

“ness enterprise?

3. Whether the defendant was denied a fair trial when

the indictment failed to identify co-conspirators whose state-

ments were introduced at trial and when an earlier request for

a bill of particulars was denied?

4. Whether the defendant was denied a fair trial by

the failure of the trial judge to instruct the jury on the issue

and possibility of finding of multiple conspiracies?

LIST OF PARTIES

In addition to the parties named in the caption to

this Petition, the following parties were also tried and con-

victed in the same proceeding: John Carbone, Joseph Carbone,

Ronald Williams, Frank Mazzuca, Richard Francis Caliguri and

Arnold Zemek.

TABLE OF CONTENTS

Guestions Presented . 2. sw we tt tee we whe hehe i

List of Parties J . — 7 > . . .* >. >. >. . . . + . - . * . 7 i

eta wh Reese (6) 4 ¢§ tte 8 8 kOe ee ee, OL ii

oka MONTE E. HESTER

Aaorney at Law

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

= w nN -~

Geseie BOM 6 a eee eae 0 we 0 6 2

ee SS ee ae eee ie ae ee ee ee ee 2

Statutory Provisions Involved in the Case. + +++ + + + 2

Statement of the Case ..++++-++* + ee © © © © © © @ 2

Reasons for Granting the Writ:

| l. Admissibility of Tape Recordings under

State Privacy Statute ..++ + + + «+ » 4

Cie Bee cee. «7s 6 eee ee 8.6 Oo 68-8 7

3. Mid-trial Identification of Unindicted

Co-conspirators . +++ ++ + +# © © « » 9

4. Multiple Conspiracies and Severance .. - - 11

CIE Cra. ge Gee eee OO 6 RO Oe 698 gre 12

a a he ee. 8 ee ee eS A-1

TABLE OF AUTHORITIES

Cases: Pages:

Alderman v. United States, 394 U.S. 165,

89 S.Ct. 961, 22 L.Ed.2d 176, reh. den.

394 U.S. 939 (1969) pam ag hg Tella 1 arte re Te 5

Fare v. Michael C, 439 U.S. 1310, 99 S.Ct.

we Oe meecae oF CES78) 6 ew we ee eee ee 6

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct.

399, 85 L.Ed. 581 (1941) . . . . 7 7 . 7 . - 6

Ker v. California, 374 U.S. 23, 83 S.Ct.

1623, 10 L.Ed.2d 726 (1963) «. ~~ «© «© © © © © « 5

Oregon v. Hass, 20 0.8. 714, 98 B.Ct. 1235,

4 L.Ed. 570 (1975) . . . . . . . .* . . . . 5

People v. Conklin, 12 Cal. 3d 259, 114 Cal.

Rptr. 241, 522 P.2d 1049 aver 6 6 6 3 hw * 6

Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92,

ae nas Bee. Seen +s & ee es 8 eek 8 8 6

State v. Buckley, 145 Wash. 87, 258 Pac.

1030 1927) - . . . . . - . - o - . 7 . 7 . . 4

State v. Fields, 85 Wn.2d 126, 530 P.2d

284 ( 19 75) . . . 7 . . - . . . . . . . . . 2 4

@ ii -

MONTE E. HESTER

Aare at law

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

Cases:

State v.

P.2d 989 (1962) .-++-+-+e-s

State v.

P.2d 1012 (1980). . «+ «+ «+ « «

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

(7th Cir. 1979) . 7 . . . . 7 -

United States v. Altese,

Michaels, 60 Wn.2d 638, 374

Williams, 94 Wn.2d 531, 617

542 F.2d 104

(2d Cir. 1976), cert. den. 429 U.S.

1039 (1977) . . . o . . . . . .

United States v. Anderson, 626 F.2d 1358

(9th a OP 1980) . . . . . . . .

United States v. Anderson, 532 F.2d 1218

(Sth Cir. 1976) . - «© «= ee « »

United States v. Anton, 547 F.2d 493

9th Cir. 1976) . . . . . . . .

United States v. Elliott, 571 F.2d 880

(5th Cir. 1978), reh. den.

United States v. Euganks, 791 F.2d 513

(9th iS 1979) . . . . . . . .

(1978)

United States v. Hall, 543 F.2d 1229

(9th Cir. 1976) . . . . - . > .

United States v. Kotteakos, 328 U.S. 750,

66 S.Ct. 1239, 90 L.Ed. 1557 (1957)

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

(9th Cir. 1979), cert. den. 100 S.Ct.

1345 (1980) . . . . . . . . .

United States v. Smaldone,

(10th Gare 1973) . . . . . . .

United States v. Sutton, 605 F.2d 260

484 F.2d 31l

6th Cir. 1979), reh. en banc granted

(1980)

United States v. Swiderski, 593. F.2d 1246

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

came Cake. G9GS) «© ew ew we ew ow

Williams v. United States, 289 F.2d 598

"wee Gan. S9GA) 2 2 « 0 eo, e

Statutes:

18 3.&.C.

18 U.S.C.

§§1961 - 68 (1970) (RICO)

| ee

§ 1962 (c) : . + » . i

MONTE E. HESTER

Pages:

Pavone a Law

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

206) 272-2157

oo-~

oe ee rr

Statutes: Pages:

. 18 0.8. Co §2511 (2) (c) . . + ~ . . . o . . . 7 7 4

R.C.W. Chapter 9.73

R.C.W. 9.73.050 . . . . . . . . * . * * . 4

R.C.W. Chapter 10.79

R.C.W. 10.79.040 . . . . . . . . . . . . 4

R.C.W. 10.79.045 . 7 . . o . . . . . 7 4

Other Authorities:

Federal Rules of Criminal Procedure,

i . ss ee os 6, e Fe 8B ee 8 8 8 le 10

- iv -

MONTE E. HESTER

Asmar at (aw

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

_ = w Nn -

NO.

5 IN THE

6 SUPREME COURT FOR THE UNITED STATES

Z OCTOBER TERM, 1980

GEORGE V. JANOVICH,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, George V. Janovich, respectfully prays

that a writ of certiorari issue to review the judgment of the

23 .

United States Court of Appeals for the Ninth Circuit affirming

the judgments of conviction entered against the petitioner by

- the United States District Court for the Western District of

Washington.

MONTE E. HESTER

Aarne at Low

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

eo @ ~~

OPINION BELOW

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

appears in the Appendix hereto at pages A-1 through A-49 . No

opinion was rendered by the District Court for the Western Dis-

trict of Washington.

JURISDICTION

The date of judgment of the United States Court of

Appeals for the Ninth Circuit was October 6, 1980, which was

also the date of entry. On January 7, 1981, the United States

Court of Appeals for the Ninth Circuit denied co-defendant Frank

Mazzuca's properly filed petition and suggestion for re-hearing

en banc. This Court's jurisdiction is invoked under Title 28,

United States Code, Section 1254(1).

STATUTORY PROVISIONS INVOLVED IN THE CASE

These are set forth in the Appendix at pages A-51, 52

and 56.

STATEMENT OF THE CASE

The petitioner, George V. Janovich, was charged, to-

gether with fourteen others (eight defendants pleaded guilty),

in an indictment with offenses under 18 U.S.C. §1962 (commonly

known as "“RICO") and a series of seventeen underlying federal

and state offenses having to do wich the asserted goal of con-

trolling the tavern business in Pierce County, Washington. Mr.

Janovich was charged and found guilty of the RICO conspiracy

and with obstructing the enforcement of the criminal laws of the

state of Washington. Mr. Janovich was found guilty of the two

offenses and was sentenced to twelve years total imprisonment.

-2-

MONTE E. HESTER

Asnorney at ome

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 96405

(206) 272-2157

The petitioner was the elected Sheriff of Pierce

County from 1975 until his conviction in 1979. It was alleged

by the government at trial that in his position as Sheriff, the

petitioner was able to provide aid to the overall and pre-

existing conspiracy to control the local tavern business. Two

other men named in the indictment (John and Joseph Carbone)

owned several taverns in the area. The petitioner's aid

allegedly took the form of protection from raids by law enforce-

ment agencies and assistance in harassing local competitive

tavern businesses.

Other defendants named in the indictment were tried

jointly with the petitioner in a trial which lasted three-

months. These other defendants were charged with specific

crimes of violence including arson, extortion and assault, as

well as the overall RICO conspiracy count. Mr. Janovich himself

was never in any way linked to any acts of violence. In respect

to the petitioner's acts which obstructed the regular law en-

forcement in the area, the evidence presented was slight and it

was argued on appeal that the evidence was insufficient.

The otherwise innocuous testimony indicating that the

petitioner lived near Joseph Carbone and was friendly with him

became horrible when linked to evidence of Carbone's acts of

violence and the acts of others alleged to be his agents.

MONTE E. HESTER

Asvommey at | ame

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

I w Ls)

—s @ @

o @®

REASONS FOR GRANTING THE WRIT

1. Admissibility of Tape Recordings Under the State Privacy

Statute

On appeal, the petitioner contended that tape record-

ings made in violation of the laws of the State of Washington

should have been excluded from evidence.

The Washington statutes, REVISED CODE OF WASHINGTON,

(R.C.W.) Chapters 9.73 and 10.79, specifically prohibit the re-

cording of any conversation unless all parties to the conversa-

tion consent or unless there is a court order entered upon an

appropriate showing. (The full text of both statutes are set

forth in Appendix hereto.) A person violating the Act may be

subject to civil penalties. R.C.W. Chapter 10.79, entitled

"Searches and Seizures," makes a warrantless search or seizure

unlawful and provides that a person participating in the unlaw-

ful act is guilty of a misdemeanor. R.C.W. 10.79.0945. If evi-

dence is gathered or adduced as a "fruit" of either of these

unlawful state trees, it must be excluded from evidence as 4

matter of state law. R.C.W. 9.73.050; R.C.W. 10.79.040; State

v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962); State Vv- Buckley,

145 Wash. 87, 258 Pac. 1030 (1927); see generally State V-

Fields, 85 Wn.2d 126, 530 P.2d 284 (1975).

The correlative federal statute is 18 U.S.C. §2511(2)

(c), enacted in 1968. That statute allows a conversation to

be recorded with the consent of only one party to the conversa~

tion:

It shall not be unlawful under

this chapter for a person acting

under color of the law to inter-

cept a wire or oral communication,

where such person is a party to

the communication or one of the

parties has given prior consent to

such interception. 18 U.S.C.

§2511(2) (c).

MONTE E. HESTER

Amore, at Law

j00e SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON

(206) 272-2157

- 4-

ee ie Rl ee

— OCC

Ct i, i ee ee tl -

eh lh

recording to be made.

In the case at bar, several tape recordings of conver-

sations which took place within the State of Washington were

admitted into evidence and were prejudicial to the petitioner's

cause. The petitioner himself did not consent to recording of

the conversations. In each case, 4 federal agent, as 4 party

to the conversation, made and later identified the recording.

No court order was applied for which would have permitted a

It is petitioner's position that even though the fed-

eral statute may govern when a federal ottisad Se being charged

in federal court, it cannot be applied in derogation of a more

restrictive state law when a state crime is at issue -~ regard-

less of the federal nature of the court. Although charged under

the federal RICO statute, the petitioner was held for an under-

lying state offense: violation of the state gambling laws.

Clearly, within the concept of Federalism, state

courts and legislatures may provide individuals within their

jurisdiction greater individual rights and protections from

police abuses than the minimum protections required by provi-

sions of the United States Constitution. Oregon V- Hass, 429

Alderman v. United States, 394 u.S. 165, 175,

Ker v. California, 374 U.S. 23, 34, 83 S.Ct.

U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2da 570 575-76 (1975)5

967-68, 22 L.Ed.2d 176, 188, reh. den. 394 U.S. 939 (1969);

L.Ed.2d 726, 738 (1963). In Oregon V- Hass, supra, the Supreme

89 S.Ct. 961,

1623, 1630, 10

Court held that although a state court should

of the Constitution,

e « « & State is free, as a matter of

not be an arbiter

its own law to impose greater restr

tions on police activity than those

federal constitutional standards.

» §«<

this Court holds to be necessary upon

ic-

MONTE E. HESTER

Aeron ae

1008 SOUTH YAKIMA AVENUE

PO. BOX 5366

TACOMA, WASHINGTON 98405

206) 272-2157

_ o ow = w yn

(citations omitted) (emphasis in origi-

nal).

Accord Pare V.- Michael C., 439 U-.S.- 1310, 99 S.Ct. 3, 58

L.Ed.2da 19 (1978)- |

The Washington State prohibitions on recorded conver-

sations, wire tapping, searches and seizures are not in conflict

with federal law. The state provisions merely add to the feder

constitutional minimum standards. The doctrine of preemption

(grounded in the Supremacy Clause), should not apply here to

forbid application of a state exclusionary rule to 4 state

crime. It is only if a state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objective

of Congress” or if a federal scheme is so pervasive as to pre~

clude any local interference that the state law must fall befo

the Supremacy Clause. Hines v. Davidowitz, 312 U.S. 52, 67-68,

61 S.Ct. 399, 403-4, 85 L.Ed. 581, 586-87 (1941). In Reid v.

Colorado, 187 U.S. 137, 148, 23 S.Ct. 92, 47 L.Ed. 108, 114

(1902), the Court stated:

It should never be held that Congress

intends to supercede, Or by its legis-

lation suspend, the exercise of the

olice powers of the state, even when

it may do so, unless its purpose to ef-

fect that result is clearly manifested.

A masterly and complete analysis of the preemption question

raised by the federal wire tapping statute, 18 U.S.C. §2518,

can be found in the dissenting opinion of United States v. Hall,

543 F.2d 1229, 1239-46 (9th Cir. 1976). See also People v-

Conklin, 12 Cal. 3d 259, 114 Cal. Rptr. 241, 522 P.2a 1049 (197

and cases cited therein, appeal dism. for want of subst. fed.

question 419 U.S. 1064 (1974). The doctrine of preemption shoul

not preclude application of the Washington statutes to the case

at bar.

-6-

aa on, toe

Subsequent to filing the appeal to the Ninth Circuit

in this case, the Washington State Supreme Court again discussed

the State Privacy Act (R.C.W. 9.73 and 10.79) as it relates to

contrary federal law. In State v. Williams, 94 Wn.2d 531, 617

pP.2a 1012 (1980), the highest court in Washington, expressly

held that interceptions and recordings made by federal agents

are inadmissible in state court proceedings. The state Supreme

Court further held that the state statute includes application

to federal agents.

This issue, raising a potential conflict between state

and federal law, is clearly before the Court in the instant

case. Certiorari should be granted.

2. The Rico Issue

On appeal to the Ninth Circuit Court of Appeals, the

petitioner joined in argument presented by co-defendants on the

issue of the applicability of Title Ix of the Organized Crime

Control Act of 1970, 18 U.S.C. §§1961-68 (1970) (known by the

acronym "RICO", Racketeer Influenced and Corrupt Organizations)

to the facts of this case. The petitioner contended that prose~

cution under RICO is appropriate only where racketeers are

preying upon legitimate business enterprises; that RICO does

not apply to individuals whose conduct is alleged to be wholly

illegal. The petitioner's position has been adopted in at least

three circuits. United States v. Turkette, 632 F.2d 896 (lst

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

1980); United States v. Sut.ton, 605 F.2d 260 (6th Cir. 1979),

reh. en banc granted (1980) (The en banc opinion for Sutton has

not yet been released.)

In the case at bar, the Ninth Circuit Court of Appeals

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

MONTE E. HESTER

Anema, at Law

1008 SOUTH YAKIMA AVENUE

PO. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

= w eo -

cert. den. 100 S.Ct. 1345 (1980

formed for illicit purposes wil.

ment" of the RICO statute.

tion, but in contradiction to the First,

cuits, are recent cases from other circuits.

Aleman, 609 F.2d 298 (7th Cir.

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

United States V- Elliott, 571 F

den. (1978); United States V.- A

Supporting the Ninth Circuit posi-

), and held that "an association

1 satisfy the enterprise require-

Sixth and Eight Cir-

United States Vv.

1979); United States V- Swiderski,

cert. den. 99 S.Ct. 2055 (1979);

.2a 880 (5th Cir. 1978), xreh.

ltese, 542 F.2d 194 (2d Cir.

1976), cert. den. 429 U.S. 1039

circuits are

The issue is

18 U.S.C. Section 196

(c)

employed by or associ

prise engaged in, or

which affect, interst

merce,

or indirectly, in the

terprises's affairs t

racketeering activity

lawful debt. (emphas

An “enterprise”,

s+ « ez individual,

poration, association

entity, and any union

viduals associated in

a legal entity.

Relying

as well as common principles of

struction, the courts in Sutton,

split on this issue of statutory construction.

ripe for a decision on this petition for certiorari}

It shall be unlawful for any person

to conduct or participate,

hrough a pattern of

defined in 18 UiBeGs

heavily on the legislative historv of RICO

(1977). But, in general, the

2(c) provides:

ated with any enter

the activities oO

ate or foreign com

directly

conduct of such en-

or collection of un-

is added.)

Section 1961(4), includes:

partnership, cor-

, or other legal

or group of indi-

fact although not

criminal law and statutory con-

Anderson, and Turkette, supra,

have held that the “enterprise”

association that is proved only

the predicate acts constituting

activity'."

supra at 270 and Turkette at 89

Anderson, supra at 1363, 1372;

does not include "an illegal

by facts which also establish

the 'pattern of racketerring

accord Sutton,

9. The RICO statute was designed

MONTE E. HESTER

Aaorney at lame

1006 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

——————

by Congress to prohibit interference with legitimate business

enterprises by racketeers within the legitimate business itself.

Turkette at 901. To interpret the enterprise requirement other-

wise is to ignore the fact that mere racketeers and criminals

can be prosecuted by different means, generally within the state

systems. In referring to contrary holdings by other circuit

courts, the First Circuit noted:

We think the courts' natural antipathy

to organized crime has clouded their

perception of RICO, its purpose, and

legislative history. What seems to be

overlooked is that persons who parti-

cipate in illegitimate enterprise will

not escape punishment for their crimi-

nal activities if they are properly

indicted and tried for these acts.

Each act of racketeering . . . as well

as conspiracy to commit such crimes,

are already criminal acts under federal

or state statutes, or both. We need

not distort a statute in order to pro-

perly prosecute criminals. RICO was

4.0t enacted as an offensive weapon

against criminals, but as a shield to

thwart their depredations against legi-

timate business erterprises. Turkette,

supra at 905-6.

This case brings to your attention the growing con-

troversy among the circuits over interpretation of the RICO

statute. The problem must be resolved, both in its application

to the case at bar and to resolve the dissention among the cir-

cuits.

3. Mid-Trial Identification of Unindicted Co-consnirators

On appeal, the petitioner alleged that the prosecu-

tion's failure to disclose the names of all co-conspirators

whose testimony or hearsay statements would be elicted at trial,

was clear and prejudicial error.

Well into the trial and without any prior disclosure,

the Government was permitted to add former-Pierce County Under

ett Bn MONTE E. HESTER

Anomey at Law

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

Sheriff Carl Skagg and former Deputy Sheriff David Larson as

unindicted co-conspirators. In this way, out-of-court state-

ments made by the two men were admitted into evidence by hearsay

declarations of others (under the co-conspirator exception to

the hearsay rule). Neither Skagg nor Larson themselves testified.

The amended indictment did not refer to Skagg or Lar-

son. Pre-trial the court had denied a defense motion for a bill

of particulars, holding that the indictment was already "“suffi-

ciently detailed". However, at several points pre-trial, the

Government did take the opportunity to produce names of other

persons whose names were "unknown" at the time of the indictment

by the grand jury. Neither Skagg nor Larson were ever mentioned}

On appeal, the petitioner contended that he was en-~

titled to know the names of all alleged co-conspirators as soon

as they became reasonably available. United States V. Smaldone,

484 F.2d 311, 320 (10th Cir. 1973); FED. RULES CRIM. PROC. 7.

The indictment must be so complete as to allow the defendant

to prepare his defense. United States V- Anderson, 532 F.2d

1218, 1222 (9th Cir. 1976). The Defendant cannot be mislead

or unfairly surprised at trial by virtue of the contents of the

indictment. United States v- Anton, 547 F.2d 493, 496 (9th Cir.

1976). In Williams v. United States, 289 F.2d 598 (9th Cir.

1961), the appellate court held that a trial court refusal to

grant a bill of particulars is error when the defendant is actu-

ally surprised at the time of trial. Reversal is required if

the defendant's substantial rights are prejudiced by denial of

the bill. af

In the case at bar, the petitioner was denied his

due process right to prepaxe a defense in his own behalf. The

petitioner was surprised by the testimony of the two Sheriff's

MONTE E. HESTER

Astomey at Law

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

- 10 -

Department employees. Being handed Jenck's materials on the

afternoon before introduction of the decisive evidence was simply

not sufficient opportunity to prepare cross-examination and re-

buttal.

The appellate court should have remanded the cause.

4. Multiple Conspiracies and Severance

On appeal, the petitioner contended that, if anything,

the evidence presented against him was sufficient only to raise

a conspiracy separate and distinct from that with which he was

charged. At the very least, the trial court should have

instructed the jury on the issue of whether one or multiple con-

spiracies were raised by the evidence. United States V.- Eubanks,

591 F.2d 513 (9th Cir. 1979). Prior to trial, the petitioner

had made a motion for severance which was denied.

The evidence adduced at trial showed that the peti-

tioner spoke solely with an FBI Agent, known to the petitioner

as "Mr. Johnson", regarding a new and very different operation.

"Mr. Johnson" wanted to open up a cocktail lounge serving food;

he wanted a new place, not then existing in Pierce County; he

wanted girls to be involved; and he wanted to engage in high

stakes gambling. All of these acts were to occur in the future.

Each of "Mr. Johnson's" stated desires was in contradiction to

the businesses owned by the co-defendants Carbone and charged

under the Indictment. The existing taverns had licenses for

beer and wine only and were not required to sell food.

To avoid or minimize the inherent prejudice involved

in a mass trial, United States v. Kotteakos, 328 u.S. 750, 66

S.Ct. 1239, 90 L.Ed. 1557 (1957); United States V- Sutton, 605

F.2d 260 (6th Cir. 1979), reh. en banc granted (1980), the trial

court should have instructed the jury on the issue of multiple

ee MONTE E. HESTER

Antome ot lw

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

conspiracies since a factual variance from the indictment was

fairly raised. United States v. Elliott, 571 F.2d 880, 905 (Sth

Cir. 1978).

CONCLUSION

FOR THESE REASONS A WRIT OF CERTIORARI SHOULD ISSUE

TO REVIEW THE JUDGMENT OF THE COURT OF APPEALS FOR THE NINTH

CIRCUIT.

RESPECTFULLY SUBMITTED:

CA0 7

MONTE E. HESTER

Counsel for the Petitioner

1008 South Yakima Avenue

Post Office Box 5366

Tacoma, Washington 98405

(206) 272-2157

—<— >.

JV Ne A a4 a=

MARILYN G. PAJA, ~

On the Brief j

U/ UV

= 12 -

MONTE E. HESTER

Attorney at Law

' 1008 SOUTH YAKIMA AVENUE

P.O. BOX 5166

TACOMA, WASHINGTON 98405

(206) 272-2157

80-6309

APPENDIX

Opinion of the United States Court of

Appeals for the Ninth Circuit, filed

October 6, 1980

Order denying Mazzuca's petition and

suggestion for rehearing en banc

Statutes

28 U.S.C. §1254(1)

18 U.S.C. §1961(4)

18 U.S.C. §1962(c) and (d)

R.C.W. 9.73

R.C.W. 10.79

Rules

Federal Rules of Criminal Procedure,

Rule 7

MONTE E. HESTER

Aatorney at Law

1008 SOUTH YAKIMA AVENUE

P.O. BOX 5366

TACOMA, WASHINGTON 98405

(206) 272-2157

_ Defendants-Appellants.

FE hy ee

IN THE UNITED S7A7ES COURT OF APPEALSNZT ( 12°’

“POR THE NINTH CIRCUIT nicnioniinn

GQifh US Get ct girls

’

UNITED STATES OF AMERICA,

Plaintiff-Appellee, . No. 79-1567

; ve No. 79-1550

vs. NO. 79-155]

No. 79-1552

WILLIAMS, by JULIUS MAZ2ZUCA, No. 79-1536

GEORGE V. JANO VICH, JOSEPH M.

CARBONE, RICHARE

CALIGURI and

ZEMEK,

DC# CR-78-97T (Seattle)

)

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

)

) DC# CR-79-68™ (Ss, F.)

)

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

eee ee

"Of the District be Southern California

and threats of murder, arson ana bribery (in violation of

State law) and gambling, mail fraud, extortion and

“obstruct ing 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" (Caligpri); 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 ac his "chief lieutenant.*

Because appellants challenge the sufficiency of the

evidence as to several counts, the evidence adduced at tria]

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, €0, 80

(1942); United States v. Basey, 613 F.2d 198, 20} (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

arash 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.

| / All were insured. There wo evidence that, prior to

—_

)

] I;

2 the fires, the establishments had been experiencing poor

3 business, Thereafter, mortgages and debts were Paid, the

4 , Premises were renodeled Or new establishments were opened

5 ‘nearby.

6 Ja Between 1976 and 197E seven Suspected arsonse als5

7 | édieieed at the establishments of competitors in the tavern,

8 disco ord topless dancing business, 2/ Because local law

i) enforcement officers were Unsuccessful in apprehending the

10 | Perpetrators, the federal Bureau of Alcohol, Tobacco, and

11 Firearms (ATF) began a joint investigation of the tavern

12 ‘fires with the sheriff's office in the fall of 1977,

13 | By April 1978, evidence indicated Sheriff Janovich

4 was providing information to a Principal target (Williams).

15 The ATF feigned abandonment of the investigation and

16 dissolved the “partnership.* Thereafter, the FBI and ATF

17 conducted an undercover operation,

Ib ’ After his arrest in April 1978, defendant Michael

Wy | Valentine agreed to cooperate with the ATF. Thereafter, the

20 government recorded conversation- between Williams and

2) Valentine in which Williams adrittea responsibility for

| at ranging. the attempted assassination of a State li.uor

23 control board Supervisor responsible for Policing Pierce

24 County taverns for alcohol and topless dancing violations.

25 In November 1977, the Supervisor had been shot four times and

26 seriously wounded,

27 At trial Valentine testified that he hired

28 defendants Bentley and Johnson to execute the murder contract

29 solicited by williams. the Jovernment introduced evidence of

30 motive. Three taverns in which Williams ana the Carbones had

A23

management of ownership interests received notices of topless

dancing violations, entailing temporary closures in the

months preceding the murder attempt. Williams, John Carbone,

| ong Joe Carbone frequently expresced vitriolic

| dissatisfaction with the inspector's stringent enforcerent

activities.

Valentine was also instrumental in introducing

undercover agents as Chicago “mobsters*" whereby they were

able to penetrate gambling activities at Me. Lucky's and Stan

& Ollies, taverns and cardrooms owned and managed by Williams

_and Mazzuca. Gambling incluse? tiackjack ana pot lirit poker

| eanes illegal under state law.-’

Posing as a potential buyer of mr. Lucky's tavern

and the related gambling activities, an agent was informed

that a price could be negotiated to include the law

enforcement Protection arrangement with the sheriff's

office. Mazzuca and Williams Participated actively in these

negotiations, Williams arranged an initial meeting between

In 1976 the Internal Revenue Service (IFS) had

initiated a criminal investigation of John Carbone and his

en "buyer" and Sheriff Janovich.

4 activities. Carbone accused Jerore Weinstein, a former

business associate, of informing to the IRS. Shortly

| thereafter, Weinstein's home suffered a series of

firebombings and arsons. He ws assaulted and seriously

injured,

Concurrent with this untercover 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

A-4

with the FBI and record conversations with Carbone.

In the fall of 1978 the For was also able to

infiltrate a nascent Plot to bom a competitor's tavern. In

| the process of concluding the "sale" of mr. Lucky's tavern to

lan 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 hore 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 Avto Sales. John Carbone, Joe

| cuieneie and Williams were observed listening for varying

Poe cone to this phone conversa: inn. Caliguri met severa)

| times with the bomber to discuss cetails.

On November 28, 1978, at the time the final

telephone contact was expected at Vista Autos, agents

| Arrested John and Joe Carbone ana Williams on the premises.

Nags remaining defendants were “prrenended the same day.

Six of the fifteen defendants Pleaded guilty and

testified at trial. Taped conversations between and among

Valentine, Weinstein and undercove: agents, on the one hand,

and John Carbone, Williams, Mazruca, Zoemek, Caliguri and

Best) on the other, formed a» important part of the

| government's case, 4/

—_

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 811 counts in

which they were named. The trial court imposed generally

concurrent sentences and Cumulative fines, ®/

RACKETEER RACY: 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(S). The alleged

pattern herein consisted of 29 predicate offenses involving,

inter alia, multiple acts of arson, extortion and gambling.

Section 1962, the sut toantive portion of RICO,

employs the foregoing definitions to Create three offenses.

See 186 U.S.C. § 1962(a)-(c). Pertinent to this appeal is

Subsection 1962(c¢) which Prohkit ots any person empicyed by or

associated with an enterprise from conducting its affairs

through racketeering activity.°’ Count I charged each

appellant with a conspiracy to violate this subsection under

18 U.S.C. § 1962(d). The indict-on+ alleged 107 overt acts

in furtherance of this conspir2cy.

Appellants raise three Ejections related to count

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

activities; (2) failing to charoe multiple conspiracies; and

(3) insufficiency of the evidence.

1. RICO Enterprise

Appellants assert that their activities d:¢ not fall

_ within the scope of the term "enterprise,* @ statctory

element of the RICO offense. They argue that the.r alleged

Operations were wholly illegitimate, and therefore outside

the purview of RICO which evi-ces Congressional concern with

Criminal infiltration of leit ir>te businerses,

This argument is ursveiling in light of Ninth

Circuit precedent to the Contrrry. Furthermore, ample

| evidence:exists to Negate appe lsrts* premise that eh.

enterprise in question was wholly _llegitimate.

This circuit has rejecte! the argument that wholly

illegitimate enterprises are o.t+©. te the scope of RICCO and

has held that an association f --«3 for illicit purposes will

Satisfy the enterprise cequire:.-: United States v. Rone,

998 F.2d 564, S68 (9th Cir. i973), cert. denied, 1.0 $.Cct.

1345 (1980). Although criticizes, 2/ this is the

Prevailing statutory interpre’ y*ion, LO/

| A few courts, notably the Sixth and Eighth Circuits,

| have refused to adopt the expansive definition. United

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

| ge %g

, rehearing en banc, April 2, 198¢; 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 (Dp. 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, ©.9., United States v.

Aleman, 609 F.2d 298 (7th Cir. 1979), cert. denied, 100 S.ct.

i 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 (34 Cir. 1980). But see, United States vy.

Auderson, supra.

Even if the broader definition of "enterprise"

| adopted in Rone did not bind this pane., the charged

t enterpcice satisfies the narrows: definition of a group

, “Organized and acting for some o tensidly lawful purpose,

| States Vv. Sutton, 605 F.2d at 264. The concern of the Sutton

| majority and of commentators is that the enterprise concept

pee who perform unrelated criminal acts. See Note,

either formally declared or informally recognized." United

not be extended to include a loocely confederated group of

Elliott v, Urited States: Conspiracy Law and the Judicial

Pursuit of Organized Crime Through RICO, 65 U. Va. L. Rev.

109. 119, ». 68 (1978). This i+ not such a case.

f -- F

Certain appellants owned or operated more than six

taverns in Plegce 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 gamSling. 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. Sec 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 @ single conspiracy.

The recurrent issue of multiple conspiracies

involves questions of severance, variance, and misjoinder

which restate the basic conte :*ion that the evidence proved

- — - PEE ee

| several Separate conspiracies. United States vy. Jabara,

618 F.2d 1319,,1327 (9th Cir.), cert. denied, 100 S.ct. 2973

| (1980). The general test is whether there was "one overall

agreement * to perform various functions to achieve the

objectives of the conspiracy. See United States v. Kearney,

560 F.2d 1358, 1362 (9th Cir.), cert. Genied, 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 cubazreoements.

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 forme: business associate, John

‘Carbone was in the best position to know what incriminating

| evidence «Weinstein Possessed a» 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 "factore* analysis

to distinguish single from multip 1}: conspiracies. See, e.9.,

United States v, Cambindo-Valencia, 609 F.2d 603, 623-25 (2d

lcir. 1979), cert. denied, 100 s.ct. 2163 (1980); United

States v. Becker, 569 F.2d 95), 960 (L9h Cir.), cert. denied,

la39 U.S. 865 (1978). Relevant fac. cs include the nature of

the

fi- 10

en ®

scheme; the identity of the Participants; the Quality,

feegeney and dyration of each concpirator's transactions;

ha the commonality of time ana 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 illejal activities

(€.g., unauthorized topless dancing and 9am™>ling) from law

| enforcement scrutiny. It engendered a pervasive concern

| regarding investigation by tho 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 Williar- related to an undercover

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

| "feds."

, Weinstein had provided or would provide the IRS with

ntoccenen efforts could not Succeed without a "stoolie.*

Throughout this period, John Carbone insisted that

‘4

information. He indicated to Weinstein his belief that law

The harassment activities Bgainst Weinstein confirm that he

acted upon thig belief.

Continuation of enterprise activities was dependent

| upon concealment. The Cperations were Particularly

‘vulnerable to federal investigation. The So-called

"Weinstein matter® was not rorety a reparate, pe: nal

, vendetta by John Carbone.

oeeesases-

-1

eo) ee

The use of violence to stifle law enforcement

efforts was a common denominator. When the state liquor

inspector became persistent, a rirder 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, Levaoe, and Wilcox were also

common Participants in arson activities. The evidence

revealed a continuing relationship among Participants

organized in a hierarchica) 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 tine span of the conspiracy and

during the time when other Crimes were Occurring (for

example, ithe Plot to blow up the competing Night Moves

I tavern). The Weinstein harass: n. activities promote the

Overall goal of the conspiracy by discouraging cooperation

with law enforcement officials ana Providing an object lesson

to minions within the enterprise.

The activities were consistent with one overa))

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 p: vide a rim sufficient to

| connect the various spokes of "gle conspirator: ce)

Eaving reviewed the record with care, we conclude

that there was no variance between the allegations of the

indictment and the evidence precented, Thus, the refusal of

the trial court to instruct on multiple Conspiracies caused

no prejudice ard is not revers:sle 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 Vv. Kearney, 560 F.2d at 1363,4)/

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 conventiona) conspiracy doctrine and defeats

appellants’ multiple Conspiracy objections. Because a single

conspiracy can be identified using traditiona] conspiracy

analysis, we need not determine if RICO Permits a joint trial

Of otherwise non=jJoinable conspiracies, L2/

be RICO Conspiracy

a. Admission of Co-Conrs irators' 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 Ouring the course ang in furtherance of a

conspiracy are admissible 88 vicarious admissions against

another co-conspirator. See Usitec States vy, Sandoval-

Villalvazo, 620 F.2d 744 (9th Cir., 1990), Admicsion of a

co-conspirator's statement is Preiicated upon independ

an Ee te oe dk, raed .

Proof of defendant's Participstion, however. See Fed. R. Evid,

801(d) (2) (BE). de ,

Two objections are raised here. First, Janovich

argues that a pretrial determination Of admissibility is

required, Second, John Carbone asserts there was

insufficient prima facie Proof of his involvement,

independent of the co-conspirators’ statements.

The district court Provisionally admitted the

|| CO-conspirators’ statements subject to establishing the

requisite independent proof. Thereafter, it expressly found

that a prima facie case of involvement had been established

as to the appellants. Janovich argues that a pretria}

determination of admissibility is required.

This court has held repeatedly that the order of

Proof is within the sound discretion of the tria} court,

United States v. Sandoval-Villaivazo, Supra. The procedure

of conditionally admitting co-conspirator's Statements

Subject to later motions to Strike is well within the court's

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

(9th Cir, 1980). Pinding no ahs-e o: Giscretion, we uphold

; the court's provisional admis-i-- of the statements, /

The test for admission of cO-conspirators'

Statements is whether there is “sufficient, substantial

evidence" apart from them to establish @ prima facie case of

conspiracy and defendant's Blight connection therewith.

United States Ve Weiner, 578 F.23 757, 768-69 (9th Cir.),

cert. denied, 439 U.s. 98) (1978). Although John Carbone

does not challenge the existence of 2 conspiracy, he does

assert there was insufficient :-: pencent evidence linking

him to the conspiracy.

Se on = "eR

Carbone's own taped conversations with Weinstein

Provide the primary evidence linking him to Specific

“a

activities of the conspiracy. ‘Therein, Carbone adritte

experience in Providing "protection" and using muscle; his

"control" of Williams; hic familiarity with gathling

Operations; and his transacticn- with Persons he described as

"Mafia". His recorded conversations indicated he had observed

the assault upon Weinstein,]4 He offered no explanation

by evidence or argument for there adniszions.

Carbone's reliance up-r Jnited States v. Diecidue,

| 603 F.2d 535 (Sth Cir. SereP, Cert. Cenied, 100 S.ct. 1345

(1980) is misplaced. The Fifth Circuit found that absent the

Statements of Co-conspirators, the case 4a3ainst Diecidue was

"built of supposition on @ 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 rejyeitite connection to permit

admission of co-conspirators' ctatenente,

b, Sufficiency of pr.

John Carbone, Joe ca:: . » femek, Caliguri, and

| Janovich challenge directly ° iff Lency of thi vicenes

under Count 1,15/ Once the fa + re CStablished, viewed

in the light most favorable te :'.-, ernment, 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 fi ndonte were Quilty heyond

a reasonable doubt, United Sti: v. Price, 623 F.2d 567,

591 (9th Cir. 1980),

] I! In measuring a co: piretor's complicity, the court

must decide if there was sufficient evidence to conclude:

3 rm the charged conspiracy existed; (2) defendant had at

4 ‘least a "slight" connection therewith; and (3) defendant knew

‘ “he was connected with the characd conspiracy. United States

4 ve 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

- rebates from the tavern and ba: } bonding businesses and his

a Pic business interest during the relevant Period was Vista

le : Auto Sales. There is a Significant body of Ccredibdle,

i | eietaint onvias evidence that hi retained both financial and

af ! persona} control of severa) enterprise Operations. Ags

beg !' discussed above, the most Gam zing evidence against him was

it I nis Own taped statements to Weinstein intimating his

Vs | involvement in illegal activities. Carbone also told of

- "unloading® money On politicians with the tacit understanding

” that help would be forthcoming when needed.

o | Carbone claimed that Jan vVich would do anything he

is I wished, ‘He bragged that Williams "performed" for hir and had

oe | made him a millionaire. In taped conversations, Zemek and

oan Williams indicated they perceived Carbone as their Superior,

_- | There was evidence Williams frequently visited Vista Autos,

is "often Prior to making business « 1StO0S. John Carbone met

at ! privately with Williams and yJa- ic? Veral times at the

si | oftice of his attorney, .

- In April 1977, 3 4) , taurant ine titior

sin ar an enterprise operation . rroyed by fir |

rc l Caxbone*e utorney testifie) + .-s ) f |

: jattenpe: J to retain him t harg -

lowaek: he was told that J and Willia °

ithe fee,

lé

Vista Autos, an acknowlej3ged Carbone Operation,

served as the communication center for the planned bombing of

Night Moves. John was observed listening to the crucial

}

phone conversation with the borier: for a short time. A few

|/hours later he was observed leaving Joe Carbone's Flitter In

accompanied by Williams who carried the identifying signa)

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

len Weinstein counts. There was abundant evidence of his

fee. with the conspiracy revealing his role as a

| ¢inancier and overseer of the enterprise.

| Joseph Carbone asserts that he and Williams were

|"mere associates® and he was not involved in the plots ang

| schemes attributable to Williams. The relationship between

) Williams and Joe was more than a + re association. Both were

| insured together for two establishronts, Flitter In and Back

| Door Disco. Williams referre3 + Toe as his "partner® in

| topless clubs,

Prior to taking retaliatory actions against a

“competitor, Williams stated he askod Joe to verify that the

| weigaaais 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 @ssoclation® argument,

| A

The government produc: evidence of Joe's

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

was experiencing bad busines:. -°/ Kis topless dancing

operation, the PFlitter In, wa: jin 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 conelude beyond a

reasonable doubt that Joseph Carbone was a knowing member of

the conspiracy,

Zemek characterizes the evidence against him as

merely indicative of @ssociational ties with the primary

actors. He dismisses his taped admissions as “drunk talk"

and false bravado. Ris 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.

_temek solicited Valentine to Set fire to a tavern

/which Williams and he had been unable to acquire. There was

jes evidence to permit an inference that he was then

— for the enterprise.

| The Fourth Circuit ha Said that the "conduct or

Participate’ language in § 1942). reguires proof cf

sneaiedll in the operation o- miragement of the RICO

enterprise. See, 2:9-- United States Vs Mandel, S91 F.2d

1347, 1375 (4th Cir.), rev'd o: ‘her grounds, 602 F.24 £53

/ (1979) (en banc) cert. denie! S.Ct. 1647 (195

~~)

Zemek's assertion that he wa- uncware of the scope of the

enterprise and did not agree to conduct its affairs ignores

his active Participation and his solicitation efforts. That

he knew the structure of the Organization is clear from his

| Statenent 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 @ancing business. He was also

identified as the Person who tailed Chase,

There was evidence that Caliguri executed Joe

Carbone's order to "do something about® an enterprise tavern

| experiencing bad business. Shortly after that directive, the

| : ons : ; P

| tavern was destroyed by fire. Caliguri was also active in

the Plot to blow up Night Move. when he was arrested,

| agents found a shaving kit in Caliguri's car containing his

some and the home phone Mumbers of John and Joe Carbone and

Williams. The evidence establisted Caliguri was a knowing

and willful conspirator, 2/

Sheriff Janovich Btrenucucly asserts that he was but

an acquaintance of the principal: 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 Q@rtanged an ist:odoction ana meeting

| '

| P

| / -19

~—

Eyres .

@ .

between < in 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 genera) directing the State's

Organized crime unit. on tape, Williams revealed that

Janovich had warned him of federa. "heat* in the spring of

1978.

The indictment assigned Janovich both Protection and

harassment roles. There was <>- evidence of his involvement

_in an "emphasis Patrol” of an enterprise competitor,

| culminating in visits by fifteen Jaw enforcement personne)

within a thirty-minute period. The government presented

| circumstantial evidence of Janovich's efforts to stifle arson

investigations. On tape Williams suggested that i¢ business

were poor, a tavern could be "torched" and the sheriff would

limit investigation.

The most damaging evidence against Janovich was

taped coaversations regarding the protection aspect of the

conspiracy. Therein he acknowlecyed his awareness of a

sesbt ine ae That a op; was exacted for such

warning system and his intent not to interfere in illegal

[cooperation is Clear. One gar hiing perator at an enterprise

tavern testified that Janovic: Pocketed a $100 payrent which

the “donor® intended for Protection. Janovich also accepted

$1,300 from the undercover agent posing as the buyer of mr.

Lucky's.

Janovich testifies ¢: he accepted th- piymen

“

as campaign contributions yet they were not reported on

campaign disclosure forms. Injeed, no record was mace cof

their receipt. The jury could reject Ris explanation a-

implausible, See United States v. Young, 573 F.24 1137, 1139

(9tl. Cir. 1978) (it is the exclusive function of the jury to

weigh the ~ edibility of witnesses). Janovich's actions were

those Of a "knowing Participant." See United States v.

Whitehead, 618 F.2¢ $23 (4th cir. 1989) (county attorney

agreed to give advance Mmotice of raids to Prostitution cing

in return for cash Payments an? free services).

There was sufficient evide--e to Suppert the

conviction of each appellant ler count },4

examine the other Chailenged

HOBBS ACT

Count 6 charged Zemek, Caliguri, John an’! 7» 2

Carbone and Williams with violating 18 u.s.c. $:395] by,

attempting to obstruct interstate commerce Dy extortion ea

obtain the goodwill and Custonrer revenues of a competing

tavern, the "Night Moves*, owne) by Ron Chase. The elerents

Of @ Hobbs Act violation are extortion and a nexus with

interstate commerce. Stirone v. United States, 361 u.s. 212

(1960).

Extortion is "the o f property

another, with his consent, i: by wrongful f tual

Or threatened force, Violence, or fear, or sande: for of

Official right." 6 U.S.C. § (451i (2), oe:

forceful acts include damagir cavern w

cocktail jin November 1977; d& \i3°

February 1978; tailing the ow: ©) of the tavern; breaking

into their home and threatening the occupants in Augast 1978;

; end Plotting to blow up the tavern in November 1978.

Zemek, Caliguri and W. ‘liars argue no violation was

established because: (1) no "property" was obtained or

sought; (2) no wrongful inducerent was employed; and (3) the

Chases did not consensually yield any property. All five

appellants argue the evidence was insufficient. 2°/

l. Intangible Property

The concept of property uncer the Hobbs Act has not

| been limited to physical or tanjitie "things." The right to

“make business decisions and to so! icit business free from

| wrongful coercion is a protecte’d property right. See, ©.g9.,

United States v. Santoni, 585 F.23 667 (4th Cir. 1978), cert.

| Genied, 440 U.S. 910 (1979) (right to make business decisions

‘

, free from outside pressure wie cif ii; imposed); United States

|) Ve Madaline, 471 F.2d 340 (Sth Cit.), cert. denied, 411 U.S.

| 951 (1973) (right to business 43 coints and unrealized

' profits); United States v. Tro: », 418 F.2d 1069 (2d Cir.

) 1969), cert. denied, 397 U.S. 10.) (137 fright to solicit

|business free from territorial restrictions wrongfully

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

F.2d 366, 395 (lst Cir.) cert. decried, 429 U.S. 819 (1976)

| oageresan Of nacrow perception of “"property"); Batt

‘United States, 383 F.2¢ 303 (3th Cir. 1967), cert. denied,

390 0.8. 907 (1968) (right to icice space in bowling alley

‘free from threats).

o o

The trial cOurt instroct’! the jury using the

following language from Unite: 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 physicel harm falls within the

scope of protected property right: 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 f«2r of economic lose asc well

-as physical violence. See Instruction No. 36. Cf. United

States v. Gates, 616 F.2d 1103, 1106 (9th Cir. 1969)

| (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, anJ threatened to kill them if

they did not give the Chases a re-ssare to “leive town." He

_ warned that it was futile to re. Night Moves because it

| }

~would "cdéme down again". The s had rebuilt the °

_ after it was destroyed by a fire arrarged by Williams

|| February 1978.

3. Consent

| ,

Appellants’ argument thit the convictions must be

reversed because Chase was not in!sced to give up preperty

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

attempted extortion. The jury wa° ° instructed.

To prove the substantive act of attempted extortion

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

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

Genied, 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 sut-tantive counts, the indictment

charged liability as an aider and abettor and as a

principal. 180U.S8.C.-§ 2. The jury was instructed on the

, complicity theory. Conviction as an aider and abettor

requires proof the defendant willingly associated himself

ae the venture and participated therein as something he

beeen: 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 primiry connection to the Night Moves

plot involves the November 1975 scheme to blow up the

‘| tavern, Vista Autos was the site of a crucial phone

| conversation with the bomber. The to: er discussed his

demands, and requested the “conti-t* carry a paper bag for

identification. John was present ani listened briefly. A

few hours later he was observed leaving Joe Carbone's FPlitter

In with Williams. Williams was carrying the requested paper

bag. When Caliguri was arrests? st 3 rendezvous with the

A- 24

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

hia Chases' home and threatened its occupants. He was

arrested while serving as a go-between in the November 1978

bombing plot,

' 3 ;

On tape Zemek admitted involvement in the Molotov

excited incident at Night Movers. In a taped conversation he

revealed his awareness of the (laces rebuilding efforts after

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

of business.

Williams asked Valentine *o arrange for the arson of

“Night Moves because it drew bo i: from Mr. Lucky's,

|Co-defendant Bentley admitted «o'ting the fire. Before

soliciting the arson, Williams i: jicated he had acked "Joe"

to make suce Chase did not ope:sto under the protection of a

well-known nightlife figure ir. ths adjoining county. In

ici a

> : Baol a8 , re ®@ %

|; 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 INVESTI3".TOP

John Carbone and Williams were charged under 18

'U.8.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 crimina)

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

“thereatter,

Appellants assert these acts do not fal] within the

Statutory proscription of 18 U.S.C. § 1510 because (1)

Pebiaeiect iy was mot in fact an informant; (2) retaliatory acts

/ are not proscribed; or (3) the statute does not cover threats

por injuries inflicted after an investigation hac terminated.

18 U.S.C. § 1510(a) Provides:

Whoever willfully endeavors by means of

bribery, misreprocentation,

intimidation, or force or threats

thereof to obstruct, delay, or pre.

the communication cf information

relating to a violation of any crir

statute of the Un.ted States by an;

person to a crim nsl investigator; o:

A- 26

Whoever injures any person in his

pecson or property on account of the

giving by such person or by any other

person of any sucht information to any

Criminal investigator --

Shall be fined not more than $5,000 or

imprisoned not rore thain five years, or

both.

The statute has been construed as requiring proof of specific

intent. United States v. Carles, 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 (1.e., the governn-"t must prove willfs?

andkaee to obstruct communication and injury "on account of"

igiving information).

The identity of the ectu1l IRS informant in 1976 is

p Identity of Informant

‘penises Carbone knew Weinste - had information of interest

; tO the IRS and believed he hai informed in the past. The

ree introduced ample evidence of the requicite mens

rea supported by several corso! rating 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, his held actual knowledge is not

required and a "reasonabiy founie’"* belief will suffice. See

United States v. Kozak, 438 F.?) 1062 (3d Cir.), cert.

denies, 402 U.S. 996 (1971). © Iso, United States v. San

Martin, 515 F.2d 317 (Sth Ci: TEN (defenisant knew o:

| "reasonably believed" perso ° rformation

A-

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 wae 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’ aroument that their

convictions must be reversed beriuse 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

fe conviction under § 1510, United States v. Foehler, supra,

the Fifth Circuit has held that retaliatory threats will not

support conviction. United St+* Vv. San Martin, 515 F.2¢ at

320.

The present record provides a basis to infer that

appellants’ purpose in attackinj Woinstein was to deter

future communications. Weinstein still posed a threat to

|Carbone. He had financial inf rration of potential interest

to the IRS. The IRS maintained a continuing interest in John

Carbone. Carbone believed informstion was or was about to be

given,

| Hi

The evidence Supports an inference that one purpose

was to interfere with future containication of information,

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

between retaliation and deterrence, the convictions may be

sustained, 21/

Joe 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. Lippran, 4:2 F.2d 314,

| 317 (6th Cir. 1974), cert. deniet, 419 U.S. 1107 (1975). The

Statutory focus is upon an endeavor to prevent communications

to federal investigators.2-’,

4. Sufficiency of the Eviden

Neither Williams nor John Carbone directly challenge

Soa sufficiency of the evidence. There was ample evidence as

‘

to Williams’ complicity. He hired Valentine to cet 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 'i1s multiple conspiracies

analysis rejected above, John Cartone does not challenge the

sufficiency of the evidence as to the counts involving

Weinstein.

zemek was charged und: unt 7 which alleged damage

to Weinstein's property. In ' nversations, Zerek

| admitted responsi: ‘iy for ar:a: 1 fire

| garage Goor in March 1977. k: ) t attacks wv

— EEO POPS a

because Weinstein was an informant “on some tax deal." There

was enough evidence that Zemck was aware of the relationship

between the arson and Weinstein's perceived position as a

i *stoolie" to support his conviction as an aider and abettor.

| ILLEGAL GAMBLING BUSINESS

John Carbone, Williazts and Mazzuca were charged with

operating an “illegal gambling bisiness” 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. § 1511.

Appellants object to the trial court's instruction defining

| "gross revenue" and Mazzuca, Carbone and Janovich challenge

| the sufficiency of the evidence as to specified counts.

1. Gross Revenue

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

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

‘involve five or more persons; ani (3) operate substantially

continuously for more than 30 day- Or have gross revenue of

'$2,000 in any single day. Mazzucs and Janovich question the

government's proof of the $2,009 qross revense option of the

| The district court's instruction defined grocs

third requirement. 23/

revenue as “the total amount «©! money wagered in a single day

not restricted to net profit.” ‘*opellants do not contend

74/

gross revenue should be equated with net profit. és

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, ¢c.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 mo court hav expressly detersined if

| "gross revenue” excludes side bets, 23/ In United States v.

i 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 "cake off" the pot. The operation also

| provided Gealecs for blackjack ind used shills to increase

| the ante in blackjack and por: mes. Their winrings were

' returned to the house.

No evidence was intr a5 to side-betting among

or between the players, 26/ 7 court properly instructed

ithe jury and did mot err in ret:7.99 9 give appe. sant ,

'proposed instruction.

! Surveillance agents of °° :ved Williams consilting

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

Mazzuca also chalien3s:: frock of $2,000 gross

revenue as to count 10 (blackjacs). 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. Grahin, Supra.

---———

The record provides sufficient foundation for the estimate,

In addition, Williams bragge. 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 frequentiy bragged of his protitable

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 6 Ollie's,2/

with John Carbone before making ritor decisions. Williams

excused himself midway through a preliminary discussion

cbone's Vista Autos and briefi,; conferred. vy

» Me. Lucky's, Williams invite?

Tees blackjack game to be bel’ tnet even

; pe cit ald ©

5) .

In light of this evicence 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 orerations,

3. Conspiracy to Facilitate Iilegal 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, 22/ We find sufficient evidence of the

existence of a conspiracy and s;:rellants' connection and

knowing participation therein.

The government introjuced tape recordings in which

_Mazzuca told the agent posing as a buyer of Mr. Lucky's that

{

bee and Williams would provide introductions to political

| figures who could guarantee no prosecutions or arrests for

| illegal gambling. Discussion- of the protection aspec: of

the gambling business ensued. When a gambling operator

‘complained about the necessity of “contributing” $100 to

| seneviehs Mazzuca said he had siven $300. In a meeting wit?

‘the undercover agent, Janovich expressed satisfaction that

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

,Mazzuca's argument that he wav n>t a knowing participant is

‘rejected,

! Janovich asserts that the evidence established only

a "mere association® with co-defeniants and that his

,acceptance of money from the untercover agent established a

separate conspiracy.

ee A

‘ 10

oye —s Ot

; it .

® aA

: ,

There was ample evidens<« that Janovich agreed to

provide protection for the gambling operations as well as to

harass would-be competitors. Sce 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 Janovic’ and the agent posing as a

| buyer of Mr. Lucky's. Williams solicited $300 from the agent

ito be passed to Janovich. After the meeting, Williams

cepectes 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

j|his intent not to enforce gambling laws to the detriment of

| encedie tee Operations were apparent in taped conversations.

The evidence showed he was a merLer of the conspiracy to

obstruct state gambling laws, #5 opposed to merely knowing

pene associating with the co-cons;irators. See United States

‘vy. Crockett, 514 F.2d 64, 75 (Sth Cir. 1975). Hic dealings

with the agent did not form a separate conspiracy, but were

acts in furtherance of a continuing conspiracy by inducing

hs “buyer® to become a new participant.

The government conten!> that John Cirbone's role in

the gambling protection conspiracy is confirmed by his

relationship with Williams, hic experience in providing

protection, and his frequent so ititations for morey for the

sheriff's office to promote his “srojram.*

Carbone told Weinstein -“at his busines: required

that he give large amounts of money to politicians with the

tacit understanding that help would be available. He bragged

,O£ his experience in arranging frotection, insulrtirg himcelf

‘by dealing two or three people awiy.

Carbone regularly held rectings at his atrorney's

} offices attended by Williams,’ J2:ovich and two of the

| sheriff's ranking subordinates. He told Weinstein the

| sherite had removed a detective from active duty because he

aa "nosing around” too much. He frequently pressured his

-| attorney for contributions to miintain his “program” with the

| sheriff's office.

The evidence was sufficient to show CarLone’s

| connection to the conspiracy.

“MAIL FRAUD

| Counts 15 through 17 involve the October 1977 arson

fat an enterprise tavern, the flick Knight, and an alleged

scheme to defraud insurance co-: iries nec.ssitating ure of

the mails. 22/ John and Joe Crrhone and Caliguri were

elas under these counts. All challerge the sufficiency

of the evidence,

The essential elements of mail fraud are a schere to

Gefraud and knowing use of the riils to execute that scheme.

, Pereira v. Unite@ States, 347 U.S. 1, 8 (1954); Unite! Srate:

v. Beecroft, 608 P.2d 753 (9th Cir. 1379).

fi .3°

im)

, business on fire to obtain insurance proceeds would not

No one asserts that pian co deliberately set a

constitute a scheme to defraud. Nor is it argued that

| mailing of the proceeds was ins officiently related to the

| scheme to defraud.

Appellants do challenge the sufficiency of the

{

evidence to establish their participation in or knowledge of

the mail fraud scheme. <Appellants' intent can be inferred

from their statements and conduct, United States v. Beecroft,

608 P.2d at 757, and from their knowledge that the scheme

operated in a deceitful manner. United States v. Piepcrass,

(425 F.2d 194, 199 (9th Cir. 1970

( There was evidence that John Carbone, not his son

| Richard, was the actual owner of the Black Knight. Williams

| borrowed money for the initial purchase in 1974. Thereafter

I Sohn Carbone obtained a loan using the proceeds to pay

Williams. Although Richard co-signed the note, John was the

scle signatory on renewals.

The Black Knight was located in the Pierce County

\ town of Puyallup and was its only topless dancing

establishment. It shared topie-s 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 $€5,00° purportedly at Williars'

, request, although the authenticity of the signattre is

‘questioned. The government introduced evidence that business

he the Bleck Knight was slack. Joe Carbone was planning to

open a new topless tavern in P:ysllup in the fall of 1977.

| One of Joe Carbone's Circers testified t! a? aa

| overheard @ conversation between o and Caliguri teo weeks

| before the fire im which Joe states thet business bad at

the Biack Knight and asked Co ic':. to “take care of it.*

fire

—

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 elirn.nited 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. Williacts made several calls to the

‘insurance company "for John." 7..¢ proceeds, totalling

1 $33,000, were used to pay John's note for the purchase.

There was sufficient proof of John Carbone's

j financial interest in the tavern and the insurance proceeds.

B hi 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

| deaienwete

Contrary to his assertions, Caliguri was net a

"neutral relation® of the principsl actors. As prior manager

lof enterprise taverns, he was iei:°¢ of incurance coverage for

fire loss. John Carbone told W irctein the Black FEnight fire

was done by a professional. There was evidence Caliguri was

one of two men involved in the Feoruary 1978 arson of

‘competitor Night Moves. While acting as an assistant for the

‘Night Moves bomber, he stated th:' he had prier experience in

—- businesses.

This evidence and tecrtitony that he was ordered to

do something about the Black Knight less than two weeks

beech its destruction, Support his conviction as an aider

;and abettor. The prosecution theorized Caliguri was aware of

fa high probability of fraud. ke 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, jointiy ani singly, raise additional

i 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 p: ‘rved their objections by

i renewing the motions at th: e 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

' 4

; 30/

, in cefustng to sever the trials.--

}

Janovich asserts that the trial judge engaged in

improper prosecutorial conduct when he questioned a witness.

He cites but one incident occupying five pages of a

transcript exceeding 8,000 pases.

The court may examine a witness to clarify testimony

if it avoids the appearance of pyrciiality. United States v.

Allsup, $66 F.2@ 68, 72 (9th Cir. 1977). The challenged

Weeee was well] within the bo >> of proper questioning.

| Janovich's objections to the > ury proceedinac are

;similarly without merit.

A ;

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

Williams’ argument astinet forfeiture of his

{

| 1963(a), is merely derivativ.. it fails because hic RICO

' conviction is affirmed.

Caliguri objects to ditcretionary evidentiary

| rulings and asserts that prejudicial outbursts from

| prosecution witnesses necessitatec a mistrial. This was a

| protracted trial involving numereus charges, defendants and

lawyers. Nonetheless, the record is remarkably. free cf even

harmless error, let alone prejudicial error. The judge gave

, appropriate limiting instruct.on->. Any error was harmless.

The @istrict court judqgrent is affirmed. The

' mandate will issue at once. Pr'rase on bail as to any

setbadons is revoked now,

—

FOOTNOTES

- ee

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 Eirebombed in November 1977 and destroyed by

fire in February 1978.

Under Washington law waoers are restricted to a

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

Admin. Code 230-406-120. Pot Timit poker games run for

the profit of the house are felonious under state law.

Wash. Rew. Code § 9.46.220. See §§ 9.46.020(20) (c)-(4);

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

{s 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 ot as obtained contrary to state law.

Wash. Rev. Code, Ch. 9.73.030 (prohibiting recordings

absent consent of all parties or court order). The

conversation® were recorded pursuant to 18 U.S.C.

§ 2511(c) which permits recording if one party gives

prior consent or acts under “color of law.*

To be admissible, the recordings need only satisfy

federal law and constitutional requirements, United

States v. Tye 506 F.2d 996 (9th Cir. 1974), cert.

denied, 75. 929 (1975). I. one party consents,

there is no federal constitutional violation. Id. Thus,

even pes 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 647, 8655 (9th Cir. 1977).

(cont'd):

Janovich's attempt to distinguish his

Case from en is not persiitive. He argues state law

applies beCaéuse he was "cherjed" with “underlying state

Crimes." Although state offenses are incorporated into

federal racketeering and o2" ling statutes, violation of

state law is not the sole element of the charged federal

offenses. The statutes sorve independent federal]

purposes and are not merely an attempt to enforce state

law. See Ynited States v. Forsytne, 560 F.2d 1127, 1135

(34 Cir. 1977); In re Bisancci, 542 F.2d 98, 101 (ist

Cir. 1976); United States v. Sacco, 491 F.2d 995, 1003

(9th Circ. 1974) (en banc).

The indictment charge? Janovich with federal

offenses. The recordings satisfied the requirements of

the constitution and fede:a! law.

The indictment was reticred on December 8, 1972 in

the western District of Wo" n3zton. On January 26, 1979,

and February 9, 1979, the tr:3) court granted motions for

change of venue and the cav* war ultimately transferred

to the Northern District of Cr ifornia, the Hororable

Morell E. Sharp of the We rn District Of Washington,

sitting by designation. Tr al by jury began on March 19,

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

John Carbone and Williar: received multiple

concurrent sentences and cumulative fines for al)

counts. Carbone was charg” 1 and convicted on 14 counts.

Williams was charged and convicted on 13 counts. Both

were sentenced to two 22-,e.1r terms for counts ] and 2

(alleging violations of 13 U.S.C. § 1962{(c) and (d)) to

be served concurrently. Poth were sentenced to five

yearg on each of the remaining counts to be served

concurrently with each other tot consecutively to the

count 1 sentence. Thus, [| th etfectively received 25

year sentences. The total arount of the fines imposed

against John Carbone was $1/3,000; the tota) for Williams

was $172,000.

Mazzuca ceceived a l%-yrur sentence for count 1.

He wis charged and convicte’ on three other counte for

which he received three £. year sentences to be served

concurrently with each or! count 1. The court

imposed fines totalling

Joseph Carbone wac ‘enced to 18 yeare on count

The sentences on the four ° ing counts for which he

was convicted are to be : ‘currently with coint

1. The aggregate finc f ate was $36,090.

couct imp ) 3}

Caliguri or Zemek and o:

concurrently. Thus, 17 EOmcK wet

effective terms of 12 y: FL FeCces\ .

1-year sentence for the | te for wale “

convicted.

18 U.S.C. § 1951(1' ©

Videss

"Racketeering activity” means (A) any act or

threat involving msrder, kidnaping, gambling,

arson, robbery, tribery, extortion, or dealing

in narcotic or other dangerous drugs, which is

chargeable under State law and punishable by

imprisonment for more than one year; (8) any

act which is indictable under any of the

following provisions of title 18, United States

Code: Section 201 (relating to bribery),

section 224 (relating to sports bribery),

sections 471, 472 and 473 (relating to

counterfeiting), section 659 (relating to theft’

from interstate shipment) if the act indictable

under section 659 is felonious, section 664

reer. t to embezzlement from pension and

welfare funds), sections 891-894 (relating to

extortionate credit transactions), section 1084

(relating to the transmission of gambling

information), section 1341 (relating to mail

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

section 1503 (reliting to obstruction of

justice), section 1510 (relating to obstruction

of criminal investigations), section 151]

(relating to the obstruction of State or local

law enforcement), section 1951 (relating to

interference with commerce, robbery, or

extortion), section 1952 (relating to

racketeering), section 195% (relating to

interstate transportation of wagering

paraphernalia), section 1954 (relating to

unlawful welfare fund payments), section 1955

(relating to the prohibition of illegal

gambling businesses), sections 2314 and 2315

(relating to interstate transportation of

stolen property), sections 2341-2346 (relating

to trafficking in contraband cigarettes),

sections 2421-24 (‘relating to white slave

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

title 29, United States Code, section 186

(dealing with restrictions on payments and

loans to labor organizations) or section $01 (c)

(relating to embezzlement from union funds), or

(D) any offense involving fraud connected with

@ case under title 11, fraud in the sale of

securities, or the felonious manufacture,

importation, receiving, concealment, buying,

selling, or otherwise dealing in narcotic or

other dangerous drugs, punishable under any law

of the United States;

—_

18 U.8.C. § 1962(c) provides:

employed by or s-cociated with any byte +> jin

engaged in, or the activities of which affect,

interstate or fo:°© an commerce, to conduct or

participate, direct ’y or indirectly, in the

conduct of such enterprite's affairs through a

pattern of rach-*er: ing activity or collection

of unlawful dete.

See, @e.9., United State: v. Aleman, 609 F.2d 296, 31]

(7th Cir. 9), Cert. denies, TOS S.Ct. 1345 (1980)

(Swygert, J., dissenting) ; United States v. Rone, 598

F.24 564, 573-74 (9th Cir. 1979), cert. denied, 100 S.Ct.

1345 (19860) (Ely, J., dissenting); United States v.

Grzywacz, 603 F.2d 682, 690-91 (7th Cir. 1975), cert.

denied, 100 $.Ct. 2152 (1980) (Swygert, J., dissenting);

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

1976), cert. denied, 429 U.c. 1639 (1977) (Van

Graafeiland, J., dissentin3). 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).

eee

See, e.9., United states v. Whitehead, 618 F.26

523 (4th Cir. 1980); United states v. Aleman, 609 F.2d

298 (7th Cir. 1979), cert. denied, 100 S. ct. 1345

(1980). United j States v. Swiderski, 593 F.2d 1246 (0.C.

Cir. 1978), cert. , denied, 44. U.S. 933 (1999) ; United

States v. Elliott, 571 F.2d 820 (Sth Cir.), cert. denied,

439 U.S. 953 (1978); Unite States v Ee 642 F.2d

104 (2d Cir. 1976), cert. ed, 429 U.S. 1039 (1977).

United States v. Botscks, 591 F.2d

513 (Sth Cir. 1979) docs not dictate a contrary result,

Therein the court reversed a conviction based on juror

bias. In @ictum, the court considered the issue of

multiple conspiracies because it was Jikely to arise on

remand, The court expressly relied on United States vy.

Pesry, 550 F.2d 524 (9th Cir.), cert. denied, 437 U5.

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

Gefendants and, as such, ig not reversible

error.

In Elitott v. United Str2tes, 571 F.2d €80 (Sth

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

Circuit construed the enterprise concept in RICO as

circumventing limitations imported by conventional

conspiracy doctrine. 57) 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

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

United States v. Anderson, F.2d __s (8th Cir., Kos.

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

conspiratorial objective herein is not as ill-defined as

in E®liott. A single over.) agreement can be identified

under conventional conspir yy doctrine.

Janovich urges thi: t to follow the Fifth Circuit

citing United States v. J°""", 576 F.2d 1121 (Sth Cir.

1978), modified en banc, ©» F.2d 575, cert. denied, 442

U.S. 917 (1979). In its en bene opinion, the Fifth

Circuit expressed a "preference" for pretrial)

Getermination of admissibility, if "reasonably

practicable.” 590 F.2d at 527. In light of consistent

Ninth Circuit precedent aliowine conditional ad-ission,

we reject Janovich's arcuc’.' for a mandatory pretrial

determination. We note thit even under the Fifth

Circuit's asserted prefere:ce, the practicality of a

pretrial determination is qiestionabdle here.

Carbone told Weinstein that he could deccribe, in

"very authentic” detail, Weinstein's assault. He stated

that Weinstein was "hollerin” and he “heard hir." He

related details about the assault and that the assailant

was "supposed to get paid ' the limb” but his weapon

broke.

Although Mazzuca attac«s the admission of certain

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 concpire® which is void for

vagueness,

RICO itself has consictently withstood constitutional

challenges as void for vo;.eness. See, @.9., United

States v. Campanale, 518 F.2d 352, 364 (9th Cir. 1975),

cert. denied, 423 U.S. 10° 976). The essence of a

RICO conspiracy is not an icreement to commit predicate

Crimes but an agreement to con'tsct or participate in the

conduct of the affairs of » enterprise through a pattern

Of racketeering. “°Pattern"” expressly defined as two

Or more predicate offenses. ‘8 U.S.C. § 1961(1) lists

seversl acts of racketeerina including violation of 18

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

States v. Weisman, — -F.24 ss (2d Cir., Nos. 79-1315,

79-1318, April 4, 1980) “picacy can be properly

charged as predicate act urier 18 U.S.C. § 19€2(c) wren

it involves any of the circtontive offenses licted in §

1961 (1) (D)).

Count 1 did not charge appellants with a conspiracy

to conspire. Cf. United Stites v. Feliziani, 472 F.

Supp. 1037, 1003 (E.D.Pa. »+i+)) aff'd, 622 F.2d $80

(1980) (evidence sufficient to support convictions under

both 18 U.S.C. § 1962(d) and § 151)1).

Mazzuca further objects to application of RICO as

unconstitutional, citing Griswold v. Connecticut, 28!

U.S. 479 (1968). Absent co. Voptent of autlo-icy ar

some relation to the facts of this case, we ceclin:

hypothesize constitutional Iefects.

17/

See pp. 35-38, infis.

Caliguri claims that the government proved that he

conspired to commit only one predicate crime. The

@vidence 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

ertaining to overt acts in the count 1] conspiracy.

dba acts need not be cririnal 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 sore element of the crime

charged, such ag knowledo>, intent, motive, desian or

scheme, it may be admissibic.

Once the trial court determines evidence cof

extrinsic acts is relevant, it must weigh the probative

value of the evidence again-: its prejudicial effect and

that determination is not d.sturbed absent an abuse of

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

Circ. 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 abuce its discretion in admitting

the challenged evidence.

Only Williams and John Carbone were sentenced tc

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 ascessed

no fines against Janovich, Zerek, and Caliguri.

Nevertheless, the nature of the charges and the

complexity oO£f the case compel us to examine the

challenges as to the remaining counts rather than invoke

the concurrent sentence doctrine.

tho

Caliguri also a°: CSE LEAS Or reorGe nexus

Wad e¢Stablished., The ce! - teretate cortorce neéd

only be @e minimis. An 4:'.31} effect ie net required for

an attempted Hobos Act viciotion; the effect need only be

a 43 Tt ip a or “potential.” * United States v.

P ili a F.2d 495 (ot s eet a Cort, ae" >»

439 U.S. 831 (1978) Ser a'fo, United States

v. Sisk: ier, 459 F. Su vt (C.D. Caiif. 1976).

There was evidence tre Chices purchased suprlies and

hired employees from out-of-state. Threatened deplet

of resources from a business engaged in interstate

commerce proz7ces an adeguate jurisdictional base.

United Stat hillips, supra. The jury was so

nstruct It is not necessary that the

subject of the extortion constitute commerce, only that

commerce be affected in some way. Carbo v. United

ates, 314 F.2d 718, 732 (9th Cir. 1963), cert. denie

U.S. 953 (1964). See also United States v. Stas

517 ,. 24 53 (7th Cir.), ¢ cert. denied, , 423 U.S. 637

(1975); United States v. A jello, 451 F.2d 1167 (24 Cir.

1971), cert. denied, G5 us. 107 (1972),

The San Martin court

A literal rea : Yisior §

Statute under c-: ation indicates thet 2

is aimed at detersi: interference with future

communication of formation, It does not

prohibit the misi:3 of a threat, ae opposed to

fay seen tet atele ~f 7 es a wu M 7 re, eae

the inftictior. iy injury, a

for having c ‘ nformat ‘ 5)

Criminal inves t least w cn 's

threat cannot eted asc ha 5 beer

intended tO int ’ wit future coTmunication

cooperation.

S15 F.2d a€ 320 (emphasi-

The Fifth Circuit's d.ctinction between retaliation

and deterrence {s arguably limited to 18 U.S.C. § 1510(a)

# 1 which speaks of willfully endeavoring to obstruct,

delay or prevent communicstion. 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 2 threat.

Although the statute re: es that the intended

recipient of the commsunicatic: an ®investigator® as

defined under the act, (1% U.S.C. § 1510(b)}, proof af

that element is not cha

. ‘

; bed 4 ivi ‘

rt i t — ‘

As t t ~ & she t A *

Opti

a ‘

/ \

Such an argument wo. ls fe

United States v.

banc).

_ Cases tried unde: tre

§ 1955, rather than the $.

refer to occurrences of :;

States v. Mattucci, 502 F.

CE. United States v. Nett)

T5768).

pecco, 491 F.id

unavailing in light of

22.995 (9th Cir. 1974) (en

Capea €.9., United

6-87 Toth Circ. 19787.

eer h

Mazzuca and Janovich also object to the court's

allegedly prejudicial limit.’

agent Early. Early observed

to the betting. A review of

on of cross-exazination of

the action and testified as

the record indicates that

the stricken questions, propounded by Mazzuca's counsel,

addressed the issue of net profit, not side betting.

is clear that the trial covrt and co-counsel ¢9 ceotstrucd

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.

One of the gambling operators testified that Mazzuca

told him of a “higher up”

the operation who could be

called upon to resolve disputes between Mazzuca and

Williams.

18 U.S.C. § 1511 p les in part

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

to conspire to obstruct the enforcement cof the

Criminal laws of a State or political subdivision

ithereof, with the intent to facilitate an illeaal

gambling business it --

(1) One or more ¢ ich persons does any ict to

(2) one or more of

Or employee,

of such State or p

(3) one or more of

finances, manages,

@ll or part of an

Williams was also char

challenge the sufficiency of

elected,

sha

such persons is an official

appointed, or otherwise,

litical subdivision; and

-h persons conducts,

pervises, directs or owns

illegal gambling business.

1) dees no

under count but

the evidence.

meni

1@ U.S.C. § 134) pee

Whoever, having «2 or intending to devise

any scheme or artifice to defraud, cr for

odtaining morey o: perty by means of false

or fraudulent pret: ot, representations, or

promises, cf to °7!!', dispose of, loan,

exchange, alter, c ve away, distribute, supply.

or furnish or procure for unlawful uce any

counterfeit or cps, out coin, obligation,

security, Of othe: article, or anything

represented to be or intimated or held out to

be such counterfeit or spurious article, for

the purpose of ex-c_ting such scheme or

artifice or attr- "2 69 to do, places in any

post office or au: 2°02 depository for mais

matter, any matter ~r tiny whatever to de sent

Or delivered by th* Po °r3l Service, or tates oe

receives theret:o- "uch matter or thing

Or knowingly ca: re delivered by mail

accordina tot 2 thereon, or-se Cie

—" aan -_* whi . : + > : e “ne

i -

Spillover and inabil:! artmente@lize are tBe

Primary odjections of Zenek, Jaacv.ch, Joe Carbone and

instructions to compartment: e the evicgence as tc cach

Gefendant. United States v. f-c2lante, F.2d,

(9th Cir., NO. 78-2794, April 23, 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 Rake the court's admonit ions and instructions.

as es v. Campanaie, 518 F.2d 352 (3th Cir.

5),

Caliguri. We assume the jur) follows limiting

iS rt. nied, 423 U.S. Toso (1976). Of the ecight

persons jointly tried, one Li vage) 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 con:idered significant only

Unitod States v. Polizzi, 5 > F.27 BSF, 902, m2} «(arb

Cir. iS°4), cart. donted, 413 7.9. BoC Cats,

ee ee mene

——= Ee

| FRANK JULIUS MAZZUCA,

IN THE UNITED STATES COURT OF APPEALS 'JAN 7 1981

FOR THE JINTH CIRCUIT

UNITED S™ATES OF AMERICA,

Plaintiff-Appellee, NO. 79-1550

Vv.

Defendant-Avpellant. ORDER

inane eae

Before: WRIGHT and SNEED, Cir:uit Judges.

Judges Wright and Sneed have voted to reject

the petition ond suggestion for a rehearing en hare

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 siggestion for a rehearing en

banc is rejected.

A-SO

vr) on 8-20 Gem 8:07

aan ch eure es

a el) ee

28 U.S.C.

§1254(1):

Court of Appeals; certiorari; appeal; certified

questions

18 UebiGe

18 U.8.Cs

18 U.8«GCe

Cases in the courts of appeals may be re-

viewed by the Supreme Court by the following

methods:

(1) By writ of certioriari granted

upon a petition of any party to a civil or

criminal case, before or after rendition

of judgment or decree.

§1961(4):

(4) “enterprise” includes any indi-

vidual, partnership, corporation, associ-

ation, or other legal entity, and any union

or group of individuals associated in fact

although not legal entity;

§1962(c) and (d):

employed by or associated with any enter-

prise engaged in, or the activities of which

affect, inter-state or foreign commerce, to

conduct or participate, directly or indi-

rectly 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) and (c)

of this section.

§2511(2) (c):

It shall not be unlawful under this chapter

for a person acting under color of law to

intercept a wire or oral communication, where

such person is a party to the communication

or one of the parties to the communication

has given prior consent to such interception.

(emphasis added).

Sections

973010

9.73020

97OM

9.73.040

9.73 050

9.73.000

9.73070

9.73080

[Tithe 9 ROW (1979 E4.p—» Seq

Chapter 9.73

PRIVACY, VIOLATING RIGHT OF

Divulging telegram.

Opening sealed letter.

Intercepting or recording ean communication —

Consent req

Intercepting. —— o

nication———Court

tion ——Grounds tor in ies vance—— —

Renewal.

Intercepting, recording, or divulging private commu-

nication —— Adminsidility in evidence.

Violaung right of pulency-—-Chvld estan for-—— Li-

ability for damages.

Intercepting, recording, or — private commu

nication —— Persons and activities excepted

Intercepting, recording, or divulging private commu-

arcation—— Penalty.

private commu-

A-S&

—

primes and Punishments

9.739.090

030-9.73.080-—_Standardea—— Aut

judge or magistrate——Admissidility of material.

Recordings available to = counsel.

intercepting,

nications ——Not wtel for bu: aon

Conditions.

Reports-— Required, when, contents.

Recording private communicetions—— Authoriza-

‘tion for, contents.

communications —— A uthorizstioa

of of application for-— . CONLERLS, sErv-

ice ——Availability of recording, applications, and

orders.

Police and fire personnel exempted from RCW 9.7}-

horizations by

9.73.100

9.793.110

9.73.120

9.73.130

9.73.140

9.73.010 Divulging telegram. Every person who shall

wrongfully obtain or attempt to obtain, any knowledge

of a telegraphic message, by connivance with the clerk,

operator, messenger or other ermployee of a telegraph

company, and every clerk, operator, messenger of other

employee of such company who shall wilfully divulge to

any but the person for whom it was intended, any ‘cle-

graphic message or dispatch intrusted to him for trans-

mission or delivery, or the nature or contents thereof, or

shall wilfully refuse, neglect or delay duly to transmit or

deliver the same, shall be guilty of a misdemeanor.

"1909 c 249 § 410; Code 1881 § 2342; RRS § 2662]

Intercepting, delaying telegram: RCW 9A. 48.070, 9A.48.080.

9.73.020 Opening sealed letter. Every person who

shall wilfully open or read, of cause to be opened or

read, any sealed message, letter or telegram intended for

another person, or publish the whole or any portion of

such a message, letter or telegram, knowing it to have

been opened or read without authority, shall be guilty of

a misdemeanor. [1909 ¢ 249 § 411; RRS § 2663.)

9.73.030 Intercepting of — private comment-

cation——Consent Exceptions. (1) Except

as otherwise provided in this chapter, it shall be untaw-

ful for any individual, partnership, corporation, associa-

tion, or the state of Washington, its agencies, and

political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone,

telegraph, radio, or other device between two or more

individuals between points within or without the state by

any device electronic or otherwise designed to record

and/or transmit said communication regardless how

such device is powered of actuated, without first obtain-

ing the consent of all the participants in the

communication;

(b) Private conversation, by any device electronic or

otherwise designed to record of transmit such conversa-

tion regardless how the device is powered of actuated

without first obtaining the consent of all the persons en-

gaged in the conversation.

(2) Notwithstanding the provisions of subsection (1)

of this section, wire communications or conversations (a)

of an emergency nature, such as the reporting of a fire,

crime, or other disaster, of (b) which convey threats of

extortion, blackmatl, bodily harm, or other unlawful re-

quests or demands, or (¢) which occur anonymously or

repeatedly of at an extremely inconvenient hour,

whether or not conversation ensues, may be recorded

with the consent of one party to the conversation.

Privacy, Violating Right of

_ (3) Where consent by all parties is needed pursuant to

' this chapter, consent shall be considered obtained when-

ever one party has announced to all other partics en-

gaged in the communication or conversation, in any

reasOnably effective manner, that such communication

or conversation is about to be recorded or transmitted:

Provided, That if the conversation is to be recorded that

said announcement shall also be recorded.

(4) An employee of any regularly published newspa-

per, magazine, wire service, radio station, or television

station acting in the course of bona fide news gathering

duties on a full time or contractual or part time basis,

shall be deemed to have consent to record and divulge

communications or conversations otherwise prohibited

by this chapter if the consent is expressly given or if the

recording or transmitting device is readily apparent or

obvious to the speakers. Withdrawal of the consent after

the communication has been made shall not prohibit any

such employee of a newspaper, magazine, wire service,

or radio or television station from divulging the commu-

nication or conversation. [1977 ex.s. ¢ 363 § 1; 1967

exs.c¢93§ 1.)

Severability ——1967 ex.s. ¢ 9% “If any provision of this act, or its

application to any person or circumstance is held invalid, the remain-

der of the act, or the application of the provision to other persons or

circumstances is not affected.” [1967 ex.s. ¢ 93 § 7.) This applies to

RCW 9.73.030-9 73.080

9.73.040 Intercepting, recording, or divulging private

communication———Court order permitting intercep-

tion———Grounds for issuance—— Duration—— Renewal.

(1) An ex parte order for the interception of any com-

munication or conversation listed in RCW 9.73.030 may

be issued by any superior court judge in the state upon

verified application of either the state attorney general

or any county prosecuting attorney setting forth fully

facts and circumstances upon which the application is

based and stating that:

(a) There are reasonable grounds to believe that na-

tional security is endangered, that a human life is in

danger, that arson is about to be committed, or that a

riot is about to be committed, and

(b) There are reasonable grounds to believe that evi-

dence will be obtained essential to the protection of na-

tional security, the preservation of human life, or the

prevention of arson or a riot, and

taining such information.

(2) Where statements are solely upon the information

and belief of the applicant, the grounds for the belief

must be given,

(3) The applicant must state whether any prior appli-

cation has been made to obtain such communications on

the same instrunient or for the same person and if such

prior application exists the applicant shall disclose the

current status thereof,

(4) The application and any order issued under RCW

9 73.030 through 9 73.080 shall identify as fully as pos-

sible the particular equipment, lincs or location from

which the information is to be obtained and the purpose

thereof

9.73.070

(5) The court may examine upon oath or affirmation

the appheant and any witness the applicant desires to

praduce or the court requires to be produced.

(G6) Orders issued under this section shall be effective

for fifteen days, after which period the court which is-

sued the order may upon application of the officer who

secured the original order renew or continue the order

for an additional period not to exceed fifteen days.

(7) No order issued under this section shall authorize

Of purport to authorize any activity which would violate

any laws of the United States. [1967 ex.s. c 93 § 2.)

9.73.050 Intercepting, recording, or divulging private

communication Admissibility in evidence. Any infor-

mation obtained in violation of RCW 9.73.030 or pursu-

ant to any order issued under the provisions of RCW

9.73.040 shall be inadmissible in any civil or criminal

case in all courts of general of limited jurisdiction in this

State, except with the permission of the person whose

rights have Peen violated in an action brought for dam-

ages under the provisions of RCW 9.73.030 through

9.73.080, or ino criminal action in which the defendant

is charged with a crime, the commission of which would

jeopardize national security, [1967 ex.s. ¢ 93 § 3.)

9.73.060 Violating right of privacy———Civil action

for Liability for damages. Any person who, directly

or by means of a detective agency or any other agent,

violates the provisions of this chapter shall be subject to

legal action for damages, to be brought by any other

person cliiming that a violation of this statute has in-

jured his business, his person, or his reputation. A person

so injured shall be entitled to actual damages, including

mental pain and suffering endured by hin on account of

violation of the provisions of this chapter, or liquidated

damages coniputed at the rate of one hundred dollars a

day for cach day of violation, not to exceed one thousand

dollars, and a reasonable attorney's fee and other costs

9.735.070 Intercepting, recording, or divulging private

communication Persons and activities excepted. The

Provisions of (is chapter shall not apply to any activity

IN Connection with services provided by a common car-

rier pursuant to ats tariffs on file with the Washington

wlilitics and tiansportation commission or the Federal

Conmmunication Commission and any activity of any of-

ficer, agent or employce of a common carrier who per-

forms any act otherwise prohibited by this law in the

construction, maintenance, repair and operations of the

common carrices communications services, facilities, or

equipment of tivident to the use of such services, facili-

ties oF equipment, Common carrier as used in this sec-

tion Means wos person engaged as a Common carrier or

public service Company for hire in intrastate, interstate

yoni ation by wire of radio of in intra.

state, inte tatcour foreign fidio transmission of energy

[19O7F evs CVE S|

ofr fore ips

[Tithe 9 ROW (1979 Fa pp $1)

9.73.080

. ™ 9.73.080 Intercepting, recording, or divulging private

commugication———Penalty. Any person who shall vio-

late RCW 9.73.030 shall be guilty of a gross misde-

meanor. [1967 ex.s. c 93 § 6.)

9.73.090 Police and fire personnel exempted from

RCW 9.73.030-9.73.080-———Standards———A uthoriza-

tions by judge or magistrate——A of mate-

rial. (1) The provisions of RCW 9.73.030 through

9.73.080 shall not apply to police and fire personnel in

the following instances: .

(a) Recording incoming telephone calls to police and

fire stations;

(b) Video and/or sound recordings may be made of

arrested persons by police officers responsible for mak-

ing arrests or holding persons in custody before their

first appearance in court. Such video and/or sound re-

cordings shall conform strictly to the following:

(i) The arrested person shall be informed that such

recording is being made and the statement so informing

him shall be included in the recording;

(ii) The recording shall commence with an indication

of the time of the beginning thercof and terminate with

an-indication of the time thereof;

(iii) At the commencement of the recording the ar-

rested person shall be fully informed of his constitutional

rights, and such statements informing him shall be in-

cluded in the recoriing;

(iv) The recordings shall only be used for valid police

of court activities.

(2) It shall not be unlawful for a law enforcement of-

ficer acting in the performance of the officer's official

duties to intercept, record, or disclose an ora! communi-

cation or conversation where the officer is a party to the

communication of conversation or one of the parties to

the communication of conversation has given prior con-

sent to the interception, recording, of disclosure: Pro-

vided, That prior to the interception, transmission, or

recording the officer shall obtain written or telephonic

authorization from a judge or magistrate, who shall ap-

prove the interception, recording, or disclosure of com-

munications or conversations with a nonconsenting party

for a reasonable ind specified period of time, if there is

probable cause to believe that the nonconsenting party

has committed, is engaged in, or is about to commit a

feluny: Provided however, That if such authorization is

given by telephone the authorizatioa‘and officer's state-

ment justifying such authorization must be electronically

recorded by the judge or magistrate on a recording de-

vice in the custody of the judge or magistrate at the time

transmitted and the recording shall be retained in the

court records and reduced to writing as soon as possible

thereafter.

Any recording of interception of a communication or

conversation incident to a lawfully recorded of inter:

cepted communication of conversation pursuant to this

subsection shall be lawful and may be divulged

All recordings of communications of conversations

made pursuant to this subsection shall be retained for ays

long as any crime may be charged based on the events or

communications of conversations recorded

tithe 9 ROW (1979 Bd. p—p $2) a oy Of

Title 9 RCW: Crimes and Punishments

(3) Communications or conversations authorized to be

intercepted, recorded, or disclosed by this section shall

not be inadmissible under RCW 9.73.050.

(4) Authorizations issued under this section shall be

effective for not more than seven days, after which pe-

riod the issuing authority may upon application of the

officer who secured the original authorization renew or

continue the authorization for an additional period not

to exceed seven days. [1977 ex.s. c 363 § 3; 1970 ex.s. c¢

48 § 1.)

Severabitity-—1970 ex.s. ¢ 48: ‘If a court of competent jurisdic-

tion shall adjudge to be invalid of unconstitutional any clause, sen-

tence, paragraph, section or part of this act, such judgment or decree

shall not affect, impair, invalidate or nullify the remainder of this act,

but the effect thereof shall be confined to the clr «€, sentence, para-

graph, section of part of this chapter so adjudged to be invalid or ua-

constitutional.’ [1970 ex.s. ¢ 48 § 3.) This applies to RCW 9.73.090

and 9.73 100

9.73.100 Recordings available to defense counsel.

Video and/or sound recordings obtained by police per-

sonnel under the authority of RCW 9.73.090 and 9.73-

100 shall be made available for hearing and/or viewing

by defense counsel at the request of defense counsel

whenever a criminal charge has been filed against the

subject of the video and/or sound recordings. [1970 ex.s,

c 48 § 2]

9.73.110 Intercepting, recording, or disclosing private

communications-———-Not unlawful for building

owner——4 onditions. It shall not be unlawful for the

owner of person entiticd to use and possession of a

building, as defined in RCW 9A.04.110(5), or the agent

of such person, to intercept, record, of disclose commu-

nications of conversations which occur within such

building if the persons engaged in such communication

of conversation arc engaged in a criminal act at the time

of such communication of conversation by virtue of un-

lawful entry or remaining unlawfully in such building.

[1977 exs c MOIG 4]

9.73.120 Reports——Required, when, contents. (1)

Within thirty days after the expiration of an authoriza-

tion or an extension or renewal thereof issued pursuant

to RCW 9.73.090(2) as now or hereafter amended, the

issuing or denying judge shall make a report to the ad-

Ministrator for the courts stating that:

(a) An authorization, extension or renewal was ap-

plied for,

(b) The kind of suthorization applied for,

modified, or was denied;

(d) The peri! of recording authorized by the author-

ization and the number and duration of any extensions

or renewals of the wuthorization;

(¢) The offense specified in the authorization of ex-

tension of renewal of authonzation:

(f) The identity of the person authorizing the applica.

tion and of the investipative or law enforcement officer

and agency for whom it was made; and

(g) The character of the facilities from which or the

place where the communications were to be recorded

—

‘ Subversive Activities

_ (2) In addition to reports required to be made by ap-

plicunis pursuant to federal law, all judges of the supe-

~ rior court authorized to issue authority pursuant to this

echapicy shall make annual reports on the operation of

this chapter to the administrator for the courts. The re-

ports by the judges shall contain (a) the number of ap-

plications made, (b) the number of authorizations

issued; (c) the respective periods of such authorizations;

(d) the number and duration of any renewals thereof;

tions were sought; (f) the names of the applicants; and

(g) such other and further particulars as the administra-

tor for the courts may require.

The chief justice of the supreme court shall annually

report to the governor and the legislature on such as-

pects of the operation of this chapter as he deems ap-

propriate including any recommendations he may care to

make as to legislative changes or improvements to cffec-

tuate the purposes of this chapter and to assure and

protect individual rights. [1977 ex.s. c 363 § 5.)

9.753.130 Recording private communications——Au-

thorization———A pplication for, contents. Each applica-

tion for an authorization to record communications or

Conversations pursuant to RCW 9.73.090 as now or

hereafier amended shall be made in writing upon oath or

affirmation and shall state:

(1) The authority of the applicant to make such

application;

(2) The identity and qualifications of the investigative

or law enforcement officers or agency for whom the au-

thority to record a communication or conversation is

sought and the identity of whoever authorized the

application,

(3) A particular statement of the facts relied upon by

the applicant to justify his belief that an authorization

should be issued, including:

(a) The identity of the particular person, if known,

committing the offense and whose communications or

conversations are to be reco. ded;

(b) The details as to the particular offense that has

been, is being, or is about to be commitied;

sation to be recorded and a showing that there is prob-

able cause to believe such communication will be

communicated on the wire communication facility in-

volved or at the particular place where the oral commu-

nication ts to be recorded;

(d) The character and tocation of the particular wire

communication facilities involved or the particular place

where the oral communication is to be recorded;

recording is required to be maintained, if the character

of the investigation is such that the authorization for re-

cording should not automatically terminate when the

described type of communication of conversation has

been first obtained, a particular statement of facts es-

tablishing probable cause to believe (nat additional com:

munications of the same type will occur thereafter;

Chapter 9.81

(f) A particulir statement of facts showing that other

MorMmal investigative procedures with respect to the of-

fense have been tried and have failed or reasonably ap-

pear to be unlikely to succeed if tried or to be too

dangerous to employ,

(4) Where the application is for the renewal or exten-

sion of an authorization, a particular statement of facts

Showing the results thus far obtained from the recording,

of a reasonable explanation of the failure to obtain such

results,

(5) A complete statement of the facts concerning all

previous applications, known to the individual authoriz-

ing and to the individual making the application, made

to any court for authorization to record a wire or oral

communication involving any of the same facilities or

places specified in the application or involving any per-

son whose communication is to be intercepted, and the

action taken by the court on each application; and

(6) Such additional testtmony or documentary evi-

dence in support of the application as the judge may re-

quire. [1977 ex.s. ¢ 363 § 6.)

9.73.140 Recording private communications——Au-

ihorization of or application for——lInveatory, contents,

service-———Availability of recording, applications, and

orders. Within a reasonable time but not later than

thirty days after the termination of the period of the au-

thorization of of extensions or renewals thercof, or the

date of the denial of an authorization applied for under

RCW 9.73090 as now or hereafter amended, the issuing

authority shall cause to be served on the person named

in the authorization or application for an authorization,

and such other parties to the recorded communications

as the judge may in his discretion determine to be in the

interest of justice, an iaventory which shall include

(1) Notice of the entry of the authorization or the ap-

plication for an authorization which has been denied un-

der RCW 9 73.090 as now of hereafter amended;

(2) The date of the entry of the authorization of the

denial of an authorization apphed for under RCW 9.73-

.090 as now of hereafter amended;

(3) The period of authorized of disapproved record-

ing; and

(4) The fact that during the period wire or oral com-

munications were of were not recorded

The issuing authority, upon the filing of a motion,

may in its direction make available to such person or

his attorney for inspection such portions of the recorded

communications, appheations and orders as the court

determines to be in the interest of justice. On an ex

parte showing of good cause to the court the serving of

the inventory required by this section may be postponed

of dispensed with {1977 ex.s. ¢ 363 § 7.)

a ye

cain a thdtanete!

rer ene eee

eT TO

Chapter 10.79

SEARCHES AND SEIZURES

Sections

10.79.010 Issuance of warrant for stolen property, etc.

10.79.015 Other grounds for issuance of search warrant.

10.79.020 To whom directed -——Contents.

10.79.030 Execution of warrant——Dispositioa of property

+10.79.040 Search without warrant unlawful.

10.79.045 Search without warrant uniawful——Penalty.

10.79.0580 Restoration of stolen property te enaah=—— Davies of

officers.

Rules of court: Search and seigure—CrR 2.3, ICrR 2.10.

Alcoholic beverage control——Search and seizure: Chapter 66.32

RCW.

Controlled substances, search and seizure: RCW 69.50. $09

Seizures and disposition of gambling devices: RCW 9.46 2.0.

10.79.010 Issuance of warrant for stolen property,

etc. When complaint shall have been made on oath, to

any magistrate authorized to issue warrants in criminal

cases, that personal property has been stolen or embez-

zled, or obtained by false tokens or pretenses, and that

the complainant believes that it is concealed in any par-

ticular house or place, the magistrate, if he be satisfied

that there is reasonable cause for such belief, shall issue

a warrant for such property. [Code 1881 § 967; 1873 p

216 § 153; 1854 p 100 § 1; RRS § 2237. FORMER

PART OF SECTION: 1949 ¢ 86 § 1; Code 1881 § 968;

1873 p 216 § 154; 1854 p 100 § 2; Rem. Supp. 1949 §

2238, now codified as RCW 10.79.015.]

Rules of court: This section superseded by CrR 2.3. See comment

after CrR 23 4

10.79.015 Other grounds for issuance of search war-

rant. Any such magistrate, when satisfied that there is

reasonable cause, may also, upon like complaint made

on oath, issue search warrant in the following cases, to

wit:

(1) To search for and seize any counterfeit or spurious

coin, or forged instruments, of tools, machines or mate-

rials, prepared or provided for making either of them.

(2) To search for and seize any gaming apparatus

used or kept, and to be used in any unlawful gaming

house, or in any building, apartment or place, resorted to

for the purpose of unlawful gaming.

A-SU

‘And Seizures

10.79.0950

(3) To search for and seize any evidence material to

the investigation or prosecution of any homicide or any

felony

(4) To search for and scize any instrument, apparatus

or device used to obtain telephone of telegraph service in

violation of RCW 9.45,240. [1972 ex.s. ¢ 75 § 2; 1969 ¢

83 § 1; 1949 c 86 § 1; Code 1881 § 986; 1873 p 216 §

154; 1854 p 101 § 2; Rem. Supp. 1949 § 2238. Formerly

RCW 10 79.010, part.]

10.79.020 To whom directed——Contents, All such

warrants shall be directed to the sheriff of the county, or

his deputy, or to any constable of the county, command-

ing such officer to search the house or place where the

stolen property or other things for which he is required

to search are believed to be concealed, which place and

property, or things to be searched for shall be designated

and described in the warrant, and to bring such stolen

property or other things, when found, and the person in

whose possession the same shall be found, before the

magistrate who shall issue the warrant, or before some

Other magistrate or court having cognizance of the case.

[Code 188! § 969, 1873 p 216 § 155; 1854 p 101 § 3;

RRS § 2239.}

10.79.0350 Execution of warrant——Disposition of

property. When any officer in the execution of a search

warrant shall find any stolen or embezzled property, or

shall scize any other things for which a search is allowed

by RCW 10.79.010 through 10.79.030, all the property

and things so scized, shall be safely kept by the direction

of the court or magistrate, so long as shall be necessary

for the purpose of being produced in evidence on any

trial, and as soon as may be afterwards, all such stolen

and embezzled property shall be restored to the owner

thereof, and all other things seized by virtue of such

warrant shall be returned to the owner thereof if such

may be legally done or shall be destroyed under direc-

tion of the court or magistrate. (1949 ¢ 86 § 2; Code

1881 § 970, 1873 p 217 § 156; 1854 p 101 § 4; Rem.

Supp. 1949 § 2240]

Roles of court This section superseded by CrR 23 See comment

after CrR 2)

10.79.0040 Scarch without warrant unlawful. It shall

be unlawful for any policeman or other peace officer to

enter and search any private dwelling house or place of

residence without the authority of a search warrant is-

sued upon a complaint as by law provided. (1921 ¢ 71 §

1; RRS § 2240 1. FORMER PART OF SECTION;

10.79.0458 |

10.79.0458 Search without warrant ualawful—

Penalty. Any policeman of other peace officer violating

the provisions of RCW 10.79.040 shall be guilty of a

gross misdemeanor, (1921 ¢ 71 § 2; RRS § 2240-2.

Formerly ROW 10.79 040, part.]

10.79.0580 Restoration of stolen property to

owner-———Dutics of officers. All property obtained by

larceny, robbery or burglary, shall be restored to the

[Tithe 10 RCW (1979 tA» 45)

e == ¥

_ 10.79.0580 Tithe 10 RCW: ¢

@ owner; and no sale, whether in good faith on the pod

the purchaser or not, shall divest the owner of his

fo such* property; and it shall be the duty of the

who shall ones SS Pe charged as principal or ac-

cessory in any robbery or la , to secure the property

alleged to have been stolen, s he shall be answerable

for the same, and shall annex a schedule thereof to his

return of the warrant. [Code 1881 § 851; 1873 p 192 §

$7; 1854 p 84 § 51; RRS § 2129.)

RULES OF CRIMINAL PROCEDURE, Rule 7 provides in pertinent

part:

Rule 7. The Indictment and the Information

(a) kk

(b) **

(1) The indictment or the information shall be a

plain, concise and definite written statement of the

essential facts constituting the offense charged. It

shall be signed by the attorney for the government.

It need not contain a formal commencement, a formal

conclusion or any other matter not necessary to

such statement. Allegations made in one count may

be incorporated by reference in another count. It

may be alleged in a single count that the means by

which the defendant committed the offense are un-

known or that he committed it by one or more speci-

fied means. The indictment or information shall

state for each count the official or customary

citation of the statute, rule, regulation or other

provision of law which the defendant is alleged

therein to have violated.

(2) **

(3) Harmless Error. Error in the citation or

its omission shall not be ground for dismissal of

the indictment or information or for reversal of a

convictionif the error or omission did not mislead

the defendant to his prejudice.

(d) Surplusage. The court on motion of the defendant

may strike surplusage from theindictment or infor-

mation.

(e) Amendment of Information. The court may permit

an information to be amended at any time before

verdict or finding if no additional or different

offense is charged and if substantial rights of the

defendant are not prejudiced.

(f) Bill of Particulars. The court may direct the

filing of a bill of particulars. A motion for a bill

of particulars may be made before arraignment or

within tend days after arraignment or at such later

time as the court may permit. A bill of particulars

may be amended at any time subject to such conditions

as justice requires.

A-S7T

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.