Petition — Fiumara v. United States
Supreme Court brief1981
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In The APR 27 1981
Supreme Court of the Unit ates. sia 5
o—
October Term, 1980
TINO FIUMARA, THOMAS BUZZANCA, and MICHAEL
COPPOLA,
Petitioners,
VS.
UNITED STATES OF AMERICA,
, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
IRVING ANOLIK
Attorney for Petitioners
225 Broadway
New York, New York 10007
(212) 732-3050
3156 LUTZ APPELLATE PRINTERS. INC.
NY (212) 840-9494 © (516) 222-1606 © (914) 683-9363
NJ (201) 257-6850 @ PA (215) 563-5587 @ DC (202) 783-7288 © MA (617) 227-1133
QUESTIONS PRESENTED
1. Whether Title 1X of the Organized Crime Control Act of
1970 (18 U.S.C. §§1961-1963) authorizes the prosecution of
individuals for engaging together in a series of alleged criminal
acts unrelated in any way to any legitimate business
organization, as a so-called “RICO” (Racketeer Influenced and
Corrupt Organizations Act) violation? (See United States y.
Turkette, 632 F. 2d 896, cert. granted, 49 U.S.L.W. 3525.)
2. Whether the Government’s use of “RICO” in the case at
bar exceeded its statutory scope and purpose?
3. Whether petitioners were denied a fair trial by the failure
of the court, at nisi prius, to have granted a severance?
4. Whether the conjoining of so many defendants into a
single “RICO” and single conspiracy to violate “RICO” charge,
necessarily created an unfair and prejudicial spillover which
precluded a fair trial to the petitioners?
5. Whether this Court should, once and for all, resolve the
issue left unsettled in United States v. White, 401 U.S. 745, as to
whether court orders are required for electronic surveillance
where only one party to such surveillance has knowledge thereof
and consents thereto?
6. Whether there was proper minimization of the electronic
surveillance?
7. Whether the indictment should have been dismissed
because “RICO” and “RICO conspiracy” do not apply to
“criminal venture” types of enterprises, and the joining of these
counts violated Rule 8(b) of the Federal Rules of Criminal
Procedure?
8. Whether there were multiple, rather than a single
conspiracy, proved in the trial of the indictment, thus rendering
the convictions defective?
ii
PARTIES
The parties in the United States Court of Appeals for the
Second Circuit were the petitioners herein, the respondent, and
the following defendants-appellants: Michael Clemente, Vincent
Colucci, Carol Gardner, and Gerald Swanton.
iii
TABLE OF CONTENTS
Questions Presented ...... peas H0Ga Pees vbdeeheene cues
PUNE 6 cdc ateeaeeccbotscedessccsenssscnab deers nveens
Table of Contents ..... SSaaEboveeneesesees peseonocess P
SER CF CHMIGRE ccscvcvcive pUedscseessvrsccesvedcsies
Opinion Below .......... bie endewe es ecenbatoecctavess
PN 56 oe SEsbb 5 cdo beds Reb edsdecesvatarsoncnes ve
Constitutional and Statutory Provisions Involved .........
Statement of the Case ...........see0e- paseneaeoneecsee
Reasons For Granting the Writ:
1. The activities alleged herein were not in relation toa
legitimate business but, rather, centered around
supposed illegal activities of the co-conspirators, and
thus, there is no allegation that a “legitimate business
enterprise” was the subject matter of the “RICO”
conspiracy or substantive “RICO” violation. .....
Il. A dichotomy of holdings among the circuits
warrants a granting of certiorari since there is no
uniform interpretation of the “RICO” statutes
SRUONE TS COUN 6 occ kcdccrccrdbceesnenscue
iv
Contents
Page
III. Substantial electronic surveillance was conducted in
the case at bar. The witness Montella, after he began
cooperating with the Government, allegedly
consented to the use of electronic listening devices in
conversations which he had with certain of the
defendants. While allegedly justified under United
States v. White, 401 U.S. 745, that case was prior to
Katz v. United States, 389 U.S. 347, and White was a
mere plurality opinion of the Supreme Court. Thus,
both the Fourth Amendment and the petitioners’
“reasonable expectation of privacy” rendered the
electronic surveillance unconstitutional and
inadmissible without court orders. .......++046. . i
IV. The electronic surveillance was not properly
minimized because the indiscriminate listening for
two minutes “on” and one minute “off” was, in
effect, a roving general or exploratory search which
violated the Fourth, Fifth, and Sixth Amendment
rights of the subjects of the electronic “bugging”. . 17
A. The entrapment charge was warranted. ...... 20
V. The failure to have granted a severance gravely
prejudiced the petitioners herein since evidence of
totally unrelated and unconnected crimes were
introduced against petitioners, relating only to co-
defendants, to say nothing of other irrelevant
evidence which was adduced against other
defendants, having no bearing on petitioners herein.
This spillover prejudice could not possibly be cured
by instructions, which, in fact, were virtually never
BOG Fee cet eects ovascesennns TTT TTT ET TTI Tee 23
y
Contents
Page
VI. The charge of the Court was fatally defective,
especially in its defining of “wrongful”. ......... 24
Ce. Le. ei cicicdecdsedeede teens ceeserbsensnenaes 27
TABLE OF CITATIONS
Cases Cited:
Berger Vv. New YorR, S08 U.S. 41 scccccccocccescescoses 14
Desist v. United States, 395 U.S. 244 (1969) ............. 15
Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357 .... 16
Hoffa v. United States, 385 U.S. 293 (1966) ............. 14
Holmes v. Burr, 486 F. 2d 55 (9 Cir. 1973), cert. denied, 414
Sas BUOD ncn ancusscdacnesaeveweentaeel 12, 13, 14, 15, 16
lannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L.
ee. Be OOO CI TSe bo cp vciccsvakesaseeeptedsunekinas v)
Katz v. United States, 389 U.S. 347 ........ 11, 12, 14, 15, 18
bee v. Preven, SS U.S. FPO CGE: ccicccccccvuscacaess 14
Lewis v. United States, 385 U.S. 206 (1966) ............. 14
naemtoines: uv: Waelbes, 36) U.S Ge vnc decuccodecvasvees 12
vi
Contents
Page
Lopez v. United States, 373 U.S. 427 ....ccccscccccess 11, 14
i ee Ce Cree ebeecde dr eee ccecesdades 12
Marshall v. Barlow's Inc., 436 U.S. 307, 98 S. Ct. 1816 .. 19
McGarry v. United States, 1184, October Term 1967, No.
MR OS Perr eT er eet rrrereey reer 17, 18
Michigan v. Tyler, 436 U.S. 499 (1942) ..........eceeees 19
Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408 ........ 19
Olmstead v. United States, 277 U.S. 438 ...........4-. 14, 15
On Lee v. United States, 343 U.S. 753 ............. 11, 14, 15
Osborn v. United States, 385 U.S. 323 .........ceeeeeeee 14
PE Vs PUROUNEL, SO FON BO BOP vecccrsccvccoccescese 17
oo ke ee ee | Beeeerr ry Pree Terre reer 17
Rathbun v. United States, 355 U.S. 107 (1957) .......... 14
Schwartz v. Texas, 344 U.S. 199 (1952) .........ceeeeeee 14
Silverman v. United States, 365 U.S. 505 (1961) ......... 14
Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L.
as och eeu neke eheUGhe dak dboawbleesbacetess 20
vil
Contents
ee We ee, A GE MED ok b kecéenésaees nbences 19
United States v. Altese, 542 F. 2d 104 (2nd Cir. 1976), cert.
Game, Ge ies GT CES ETP eacccccecksscccecsss 8, 9, 10
United States v. Anderson, 626 F. 2d 1358 (8th Cir. 1980). .6, 9
United States v. Black, Cr. Nos. 551-63, 650-63 D.C. (1967). 17
United States v. Decidue, 603 F. 2d 535 (5 Cir. 1979), cert.
Gem, SES iB S66 CISGED i nccdecescdivccccesccees y
United States v. Gigante, 738 F. 2d 502 (2 Cir. 1976) .... 17
United States v. Giorano, 416 U.S. 505, 94S. Ct. 1820 .. 16
United States v. Henry, 417 F. 2d 267 (2nd Cir. 1969), cert.
GC, ae Us Se CERPD Soccdctccuseesvecvcats 21, 22
United States v. Jones, 360 F. 2d 92 (2nd Cir. 1966) ..... 21
United States v. Pugliese, 346 F. 2d 861 (2nd Cir. 1965)... 21
United States v. Riley, 363 F. 2d 955 (2nd Cir. 1966) .. 21, 22
United States v. Scotto and Anastasio, 79 Cr. 32 ........ 22
United States v. Sherman, 200 F. 2d 880 (2nd Cir. 1952).. 20
United States v. Sutton, 605 F. 2d 260 (6 Cir. 1979) .... 8, 10
viii
Contents
Page
United States v. Sutton, Nos. 78-5134-39, 78-5141-43 (6 Cir.
Dak. Sy POO civccGvavaccscscdeneeeci ses keovectene 8
United States v. Turkette, 632 F. 2d 896, cert. granted, 49
USL.) FERS. cnctgcccivevaiucstnanscnswe 6, 7, 8, 9, 10
United States v. White, 401 U.S. 745 ...11, 12, 14, 15, 18, 19
Statutes Cited:
1 US OUND 4..756510h eee 2, 5, 6
1 UEC SM is hg ai ee 2
US: ONS ioc ceikdcs Sa teen 2
URES I... os Shas cakaeee eee 234
OE IS oh ee oe ee ee
8 USC: GRID ..eiics cee re 17
6 UEC CNR ai is eee ee 17
9 BEC OUD os) ca cnknsccksadesae ee 2
US6. CIE ici veneers ctcrv et ee 2
OUST ios hee ee 22
BRB OE vices hae ee 14
ix
Contents
Page
United States Constitution Cited:
Fourth Amendment .....ccccccccces 11, 13, 15, 16, 17, 18, 19
ES EE 2
ee. cee w ees sceebcceceoese 17
Other Authorities Cited:
i Tr cross scecccceesevecrcccccece 7
Amsterdam, Perspectives on the Fourth Amendment, 58
Cte Sl cs scccesessccsdesceseese 20
APPENDIX
Appendix A — Opinion of the United States Court of Appeals
SE CM cSosccepesccccscccsscoscccece la
Appendix B — Order of the United States Court of Appeals
ETE cscs ccc cccccesececcccccocs 35a
Appendix C — Relevant Constitutional and Statutory Pro-
CSCC LC cEEbGsebeseecededsccccccsccececs 37a
No.
In The
Supreme Court of the Wuited States
+
October Term, 1980
TINO FIUMARA, THOMAS BUZZANCA, and MICHAEL
COPPOLA,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
OPINION BELOW
A copy of the opinion of the United States Court of
Appeals for the Second Circuit, decided February 26, 1981, is
annexed hereto as an appendix.
JURISDICTION
a) The judgment of conviction was rendered the 20th day of
June 1980, convicting each of the petitioners of the crime of
conspiracy to violate the so-called “RICO” statute [18 U.S.C.
§§1962(c) and (d)].
2
In addition, petitioners Buzzanca and Fiumara were also
convicted of violating the “RICO” statute itself [18 U.S.C.
§1962(c)], as well as all of the other counts of the indictment of
which they were accused. These other counts comprised alleged
monthly payments made by Montella on behalf of certain
corporations to obtain or retain waterfront business. Each of
these counts, however, while dealing with only one payment,
charges that the payment was received illegally, both because it
was the result of an allegedly extortionate demand and because
it was an illegal labor payment. Thus, each payment is charged
as two separate violations, namely extortion count and labor
payment count.
Additionally, petitioner Fiumara was convicted of tax
counts, namely filing false returns and omission to report certain
payments allegedly made to him in his income tax return
(Counts 157 and 158).
b) The order and judgment of affirmance of the United
States Court of Appeals is dated the 26th day of February 198).
An opinion accompanying that order is annexed hereto as an
appendix.
c) Jurisdiction to review the judgment in question by
certiorari is conferred under 28 U.S.C. §§1254 and 1257.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The constitutional provision involved is the Due Process
Clause, Fifth Amendment, United States Constitution.
The statutes involved are 18 U.S.C. §§1961(4); 1962(a);
1962(b); 1962(c); 1962(d).
STATEMENT OF THE CASE
Petitioners Thomas Buzzanca, Tino Fiumara and Michael
Coppola were tried jointly with Michael Clemente, Vincent
Colucci, Carol Gardner and Gerald Swanton before Honorable
3
Leonard Sand, and a jury, in the United States District Court
for the Southern District of New York, following which trial
each of the petitioners were convicted of conspiracy to violate
the so-called “RICO” statute [18 U.S.C. §1962(c)], and
petitioners Buzzanca and Fiumara were convicted of a
substantive “RICO” violation [18 U.S.C. §1962(d)], as well as all
of the other counts in the indictment with which they were
charged.
The petitioner Thomas Buzzanca was sentenced to
imprisonment for a period of 10 years and a fine of $5,000 on
Count I, the “RICO” count; 10 years on Count 2, the conspiracy
count, concurrently with Count |; 10 years on each of Counts 14
through 48 inclusive, to run concurrently with each other and to
run concurrently with Count 1; 3 months on each of Counts
49 through 84 inclusive, to run consecutively with each other,
but to run concurrently with Count |; and, in addition, was
ordered to forfeit to the United States his position as President
of an International Longshoremen’s Association Union.
Michael Copolla, who was only convicted of the conspiracy
count, was sentenced to a term of 13 years imprisonment to run
concurrently with a sentence which he was presently serving
from the United States District Court, District of New Jersey,
but the sentence herein was retroactive to the date that he began
the New Jersey sentence.
Petitioner Tino Fiumara was sentenced to 20 years im-
prisonment on Count 1, to run concurrently with the
sentence which Fiumara was presently serving from a conviction
in the United States District Court for the District of New
Jersey; sentenced to 5 years and a fine of $10,000 on Count 2, to
run consecutively to Count | of the indictment; 20 years
imprisonment on each of Counts 14 through 48 inclusive, to run
concurrently with each other and concurrently with Count 1; 6
months on each of Counts 49 through 83 inclusive, to run
consecutively with each other, but concurrently with Count 1;
2'4 years on each of Counts 210 and 211, to run consecutively
with each other and consecutively to the sentence the petitioner
4
is presently serving, but concurrently with Count 2. All sentences
were deemed to have commenced with the service of the New
Jersey sentences.
The indictment herein contains 157 counts, involving seven
defendants who went to trial. They are numbered | through
160, numbers 7, 12 and 86 having been omitted. Each count, of
course, charged a separate offense and crime and the jury was
required to consider each separately, according to the charge of
the Trial Judge.
Count | of the indictment charged six of the defendants,
Swanton being omitted, with violating the so-called “RICO”
statute, by allegedly operating an enterprise designed to control
waterfront business in the Port of New York and elsewhere
through a “pattern” of racketeering activity.
Count 2 charged the same six defendants with a conspiracy
to violate that “RICO” statute.
Counts 3 through 142 each named one or more of these
same six defendants, who were named in Counts | and 2, with
various crimes. The seventh defendant, Gerald Swanton, was
named as an aider and abettor in some of these counts,
specifically Counts 87 through 142.
A good deal of the facts adduced at trial were highly
prejudicial to the petitioners herein and yet they should not have
been admitted against the petitioners because they had nothing
to do with them.
Since Buzzanca got no money, ‘ie position of the
petitioner Buzzanca is that there was no violation of the
Landrum-Griffin Act.
Ironically, despite the fact that the Government maintained
that Buzzanca and Clemente were very close and friendly, in the
October 19, 1978 conversation which Buzzanca had with
Montella, the latter tells Buzzanca to call Mike Clemente when
George gets into town. But the conversation reveals that
5
Buzzanca doesn’t even know where to telephone Mike Clemente
and has to get the telephone number from Montella. Buzzanca
doesn’t even know that it’s the Shelton Health Club, and
Montella has to tell Buzzanca to ask for Mike C.
With respect to Fiumara, only Montella is the alleged
victim. Fiumara is accused of having aided and abetted Thomas
Buzzanca between January 1976 and December 1978 in the
receipt of money. But Montella never was in fear! Thus, how
could there be any extortion?
REASONS FOR GRANTING THE WRIT!
I.
THE ACTIVITIES ALLEGED HEREIN WERE NOT IN
RELATION TO A LEGITIMATE BUSINESS BUT,
RATHER, CENTERED AROUND SUPPOSED ILLEGAL
ACTIVITIES OF THE CO-CONSPIRATORS, AND THUS,
THERE IS NO ALLEGATION THAT A “LEGITIMATE
BUSINESS ENTERPRISE” WAS THE SUBJECT MATTER
OF THE “RICO” CONSPIRACY OR SUBSTANTIVE
“RICO” VIOLATION.
In essence the indictment charges that the various
defendants, including the petitioners herein (with the exception
of Swanton), were associated with an “enterprise” as defined in
18 U.S.C. §1961(4). That section defines “enterprise” as
including 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. §1962(c) makes it unlawful “for any person
employed by or associated with an enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
1. We ask this Court to review all the briefs submitted to the court below
because we believe they are very relevant and space precludes incorporating
them all in this petiton.
6
conduct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt.”
18 U.S.C. §1961(4) defines “enterprise”.
Petitioners maintain that the “RICO” Act was intended to
protect “legitimate business enterprises from being preyed upon
and taken over by racketeers.” Petitioners maintain further that
“RICO” does not apply to individuals whose only enterprise
activity is allegedly completely criminal.
Viewed in its entirety, “RICO” is a combination of criminal
sanctions and civil remedies designed to protect legitimate
commercial enterprises from the onslaught of racketeers and
provides a means of repairing the effects of such incursions. [See
United States v. Turkette, 632 F. 2d 896, 898, 899 (Ist Cir.
1980), cert. granted, 49 U.S.L.W. 3525.]
See also, United States v. Anderson, 626 F. 2d 1358 (8th
Cir. 1980).
As the Turkette court observed (632 F. 2d at 899, 900):
“Our interpretation of ‘enterprise’ to mean only a
legitimate enterprise is reinforced by the
legislative history of RICO. More than a decade
ago, Congress decided that organized crime
posed such a grave threat to society that only
new, more stringent legislation could ameliorate
the situation... .
The purpose of RICO was the ‘elimination of the
infiltration of organized crime and racketeering
into legitimate organizations operating in
interstate commerce.’ ”
The opinion in United States v. Turkette further aptly
observed that Congress had no difficulty in drafting legislation
specifically outlawing certain activities and that there was no
7
reason to believe that in drafting the “RICO” statute it said one
thing but meant something more. Thus, the opinion continues:
“A comparison of RICO’s legislative history with
that of 18 U.S.C. §1955, outlawing illegal
gambling businesses, shows that Congress knew
how to draft legislation which would make the
operation of an illegitimate enterprise a federal
offense.”
We maintain that the congressional intent demonstrates
that while Congress wanted to eliminate organized crime,
“RICO” is only one arm of a broad-based attack. It is intended
solely to accomplish the distinct purpose of “dislodging the
forces of organized crime from legitimate fields of endeavor.” (S.
Rep. No. 91-617, p. 79).
The Turkette court aptly observes:
“This analysis comports with that of RICO’s
sponsor, Senator McClellan. ‘Title 1X is aimed at
removing organized crime from our legitimate
organizations.’ McClellan, The Organized Crime
Control Act, 46 Notre Dame Law, 55, 141 (1970).
This background casts grave doubts on the
government's simplistic and literal interpretation
of 18 U.S.C. §1961(1) and 1962(c). Under the
government's interpretation, the concept of
‘enterprise’ is entirely eliminated from this section
of the statute. If we follow the government’s
rationale; one or more individuals can be
prosecuted under 1962(c) for engaging in a
‘pattern of racketeering activity’ which affects
interstate commerce. ‘Pattern of racketeering
activity’ is defined as
at least two acts of racketeering activity,
one of which occurred after the effective
date of this chapter and the last of which
occurred within ten years (excluding any
period of imprisonment) after the
commission of a prior act of racketeering
activity[. ]
i8 U.S.C. §1961(5). Racketeering activity covers
a multitude of state and federal crimes. 18 U.S.C.
§1961(1). This means, if we accept the
government’s logic, that one individual who
commits two of the crimes defined in 1961(1)
within a ten-year period can be prosecuted for
violating RICO as well as for the substantive
crimes themselves. Although it is an extreme
example, there could be a RICO prosecution
against a prostitute for two acts of solicitation
within the ten year period, if she travels interstate
in plying her trade. The individual by
commission of the predicate substantive crimes,
becomes a ‘enterprise’.” (632 F. 2d at 903).
A DICHOTOMY OF HOLDINGS AMONG THE
CIRCUITS WARRANTS A GRANTING OF CERTIORARI
SINCE THERE IS NO UNIFORM INTERPRETATION OF
THE “RICO” STATUTES AMONG THE CIRCUITS.
A fundamental basis for the granting of certiorari has
traditionally been recognized to be in a situation presented by
the case at bar where the circuit courts are in disagreement.
The petitioners herein are convicted for conducting an
enterprise whose means are criminal rather than legitimate.
Under the circumstances, it is obvious that several circuits have
disagreed among themselves as to what the law is with respect to
the interpretation of “RICO” statutes when they involved
“illegitimate enterprises”. See United States v. Altese, 542 F. 2d
104 (2d Cir. 1976), cert. denied, 429 U.S. 1037 (1977); United
States v. Sutton, 605 F. 2d 260 (6 Cir. 1979), reversed in banc in
United States v. Sutton, Nos. 78-5134-39, 78-5141-43 (6 Cir.
December 3, 1980).
9
The First and Eighth Circuits, however, have adopted a
contrary view [see United States v. Turkette, supra, and United
States v. Anderson, supra. See also, United States v. Decidue,
603 F. 2d 535 (5 Cir. 1979), cert. denied, 445 U.S. 946 (1980)].
We also, of course, are well aware of the fact that this Court
has granted certiorari in United States v. Turkette, supra.
While this Court, at the time this brief is being written, has
not yet addressed itself to these issues directly, we submit that
our construction of the statute is not aberrational. Interpreting
the gambling provisions of the Organized Crime Control Act of
1970, the Supreme Court noted that Title 1X (“RICO”) “seeks to
prevent the infiltration of legitimate business operations
affecting interstate commerce by individuals who have obtained
investment capital from a pattern of racketeering activity.”
lannelli v. United States, 420 U.S. 770, 787 n. 19,95 S. Ct. 1284,
43 L. Ed. 2d 616 (1975).
The Second Circuit, in United States v. Altese, supra, based
its holding on two counts: First, the statute uses the word “any”
in referring to “enterprise” (542 F. 2d at 106). Second, Congress
manifested an intent to have the “RICO” statute construed
liberally, and a restrictive reading of enterprise would leave an
unintended “loophole for illegitimate business to escape [the
statute’s] coverage” (542 F. 2d at 106-107). Both of these
arguments are met head on, and refuted, by the opinions in
Turkette and Anderson, supra.
Turkette and Anderson demonstrate that Altese’s emphasis
on Congress’ use of the word “any” mistakes the beginning of
statutory analysis for its conclusion. Of course, the “RICO”
statute, says Altese, “must be read to cover ‘any enterprise
But what does that mean?
The flaw in the Altese approach lies in its deceptively literal
treatment of the statutory definition of the term “enterprise”.
What parades under the guise of rigorous fidelity to the text,
turns out, upon examination, to read the “enterprise” element
10
entirely out of the statute. (See United States v. Sutton, 605 F.
2d at 265; United States v. Anderson, supra, and United States
v. Turkette, supra.)
We are, of course, aware that Sutton was overturned in
banc, but that merely highlights the dichotomy of interpretation
which the circuits entertain in connection with the “RICO”
statutes altogether.
Similarly, Turkette and Anderson destroy the claim that
only a broad interpretation of enterprise will vindicate Congress’
intent that “RICO” be liberally construed. Thus, Turkette and
Anderson demonstrate that Altese assumes a legislative intent
directly contrary to the statute’s legislative history, and expands
upon that assumed intent in direct violation of principles of due
process, the rule of lenity, and the rule that Congress will not be
lightly deemed to have significantly altered the federal-state
balance. In sum, Turkette and Anderson demonstrate that there
is nO more merit to the reasoning of A/tese than there is to its
wishful and sublimely unrealistic characterization that the
language of “RICO” concerning enterprise is “clear, precise and
unambiguous”.
We submit that this conflict, as we have already said,
should be resolved by the grant of certiorari and the
proclamation of a definitive decision on the law.
SUBSTANTIAL ELECTRONIC SURVEILLANCE WAS
CONDUCTED IN THE CASE AT BAR. THE WITNESS
MONTELLA, AFTER HE BEGAN COOPERATING WITH
THE GOVERNMENT, ALLEGEDLY CONSENTED TO THE
USE OF ELECTRONIC LISTENING DEVICES IN
CONVERSATIONS WHICH HE HAD WITH CERTAIN OF
THE DEFENDANTS. WHILE ALLEGEDLY JUSTIFIED
UNDER UNITED STATES v. WHITE, 401 U.S. 745, THAT
CASE WAS PRIOR TO KATZ v. UNITED STATES, 389
U.S. 347, AND WHITE WAS A MERE PLURALITY
OPINION OF THE SUPREME COURT. THUS, BOTH THE
FOURTH AMENDMENT AND THE PETITIONERS’
“REASONABLE EXPECTATION OF PRIVACY”
RENDERED THE ELECTRONIC SURVEILLANCE
UNCONSTITUTIONAL AND INADMISSIBLE WITHOUT
COURT ORDERS.
The Government elected to use electronic surveillance in
this case, probably in an attempt to corroborate the statements
of their single most important witness, Montella.
The use of electronic surveillance where only one party
consents to the eavesdropping has been employed very widely
since this Court’s decision in United States v. White,
401 U.S. 745. It, of course, had also been used previous thereto,
but many law enforcement agencies apparently look upon White
as authorization or carte blanche to use this method of
electronic surveillance.
It is respectfully contended that White was a plurality
opinion of this Court and was decided prior to Katz v. United
States, 389 U.S. 347, 364.
Just a mere plurality of this Court voted to save
the “misplaced confidence” doctrine of On Lee v. United States,
343 U.S. 747 and Lopez v. United States, 373 U.S. 427.
This “misplaced confidence” exception to the normal
warrant requirement is inconsistent with the “reasonable
expectation of privacy” standard of Katz v. United States, 389
12
U.S. 347, and we maintain should therefore be abolished. [See
Holmes v. Burr, 486 F. 2d 55 (9 Cir. 1973), cert. denied, 414
U.S. 1116.]
It will be recalled that Justice Black’s cryptic concurrence in
United States v. White, supra, mentioned the fact that it did not
apply since this was pre-Katz eavesdropping.
Justice Black cast the swing vote in United States v. White,
and his concurrence in the judgment of the Court was for the
reason set forth in his dissent in Katz v. United States, 389 U.S.
347, 364. However, he also noted “his adherence” to “his views
expressed in Linkletter v. Walker, 381 U.S. 618.” In Linkletter,
Mr. Justice Black maintained that Mapp v. Ohio, 367 U.S.
643, should have been applied retroactively.
It must be borne in mind that in his concurrence in United
States v. White, Justice Black reasserted the position which he
had taken in Katz, namely that electronic surveillance was not
within the ambit of the Fourth Amendment.
In Katz v. United States, however, this Court
made it very clear that seizure of the spoken word was within the
purview of the Fourth Amendment and, consequently, Black’s
concurring and controlling fifth vote is inapplicable in view of
Katz v. United States.
It is argued that: (1) electronic recording produces more
reliable evidence than human recollection; (2) that law
enforcement authorities need unhampered electronic surveillance
to protect us from crime; and (3) that the exclusion of evidence
obtained in this way hurts society. These arguments do not hold
up.
Evidence obtained by machine is not necessarily more
reliable than human recollection. A machine has considerable
ability to distort. It focuses on a single element in a total
environment and can yield deceptive results. A recorder captures
voices without facial expressions, gestures, and other subtle
details. Nor is a picture any more accurate. But the reliability
13
argument really is irrelevant. Evidence obtained by illegal search
or seizure is excluded not because of unreliability, but because of
the values its exclusion protects.
As for the second argument, the Government’s legitimate
interest in detecting and preventing crime must be balanced
against the individual’s freedom from unjustified intrusions.
That balance was struck by the draftsmen of the Fourth
Amendment when they required advance authorization of
searches and seizures by a magistrate upon a showing of
probable cause.
Rarely articulated but frequently evinced hostility to the
Exclusionary Rule underlies the third argument:
“The case presents some of the most vexing and
pressing problems of our day: What are the
constitutional limitations on governmental
electronic intrusions into privacy? Do the Fourth
and Fourteenth Amendments circumscribe
warrantless electronic intrusions as effectively as
they limit corporeal invasions of privacy? Are the
protections of the Fourth and Fourteenth
Amendments diluted if the person subjected to
the warrantless electronic intrusion is suspected
of a crime?” (Dissent of Hufstedler, J. in Holmes
v. Burr, supra.)
The dissenting opinion in Holmes v. Burr, supra, went on to
explain the impact of warrantless surveillance:
“The corrosive impact of warrantless participant
monitoring on our sense of security and freedom
of expression is every bit as insidious as
electronic surveillance conducted without the
consent of any of the parties involved. In terms
of the individual’s reluctance to speak freely, no
qualitative difference exists between the danger
posed by third party interception and the risk
that his auditor has sanctioned a secret recording
of their conversation... .”
14
The holding of Olmstead was finally overruled in Karz v.
United States. There the Court explained:
“The Fourth Amendment protects people, not
places.”
Tucked into Olmstead was a passing reference to the theory
that persons subjected to warrantless electronic interception
volunteer their statements to the Government by their very act
of talking to each other. This theory later emerged as the
constructive consent and assumption of the risk fictions relied
on in On Lee v. United States, supra, 343 U.S. at 753-54 and
Lopez v. United States, supra, 373 U.S. at 439. In Lopez, the
majority added the variation that a person talking face-to-face
with a known government agent assumes the risk that the agent
will be able to repeat the conversation either by total personal
recall or by a corroborative recording which in its nature is more
reliable than human recollection. The theme was replayed in a
slightly different key by the plurality in United States v. White.
Using familiar jurisprudential tools, Holmes can be
successfully distinguished from every Supreme Court decision
directly bearing on the case other than Katz. Thus, On Lee and
Lopez not only are factually dissimilar but, more importantly,
were based on trespassory concepts discredited by Si/verman v.
United States, 365 U.S. 505 (1961); Osborn v. United States, 385
U.S. 323; and Berger v. New York, 388 U.S. 41 and destroyed by
Katz. Rathbun v. United States, 355 U.S. 107 (1957), dealt with
governmental eavesdropping by extension telephone without
electronic recording, and the decision was confined to an
interpretation of Section 605 of the 1934 Federal
Communications Act (47 U.S.C. Section 605). Schwartz v.
Texas, 344 U.S. 199 (1952), involved facts similar to Rathbun,
but the decision was based on the pre-Mapp authority refusing
to apply the exclusionary rule to state courts, Schwartz was
overturned by Lee v. Florida, 392 U.S, 378 (1968), a post-Mapp
case, holding inadmissible under Section 605 telephone
conversations overheard on a party line and recorded, Lewis vy.
United States, 385 U.S. 206 (1966) and Hoffa v. United States,
385 U.S, 293 (1966), like Holmes, concerned the use of
15
confidants who were secretly governmental informers, but in
neither case was electronic surveillance employed. The facts in
White were closer to those in On Lee than to Olmstead or
Holmes. But of much greater significance, White necessarily
applied pre-Katz law because the electronic surveillance of
White occurred before Katz was decided, and Katz had been
earlier held nonretroactive in Desist v. United States, 395 U.S.
244 (1969). United States v. White, is nevertheless important
because it reveals continuing reliance by some of the justices on
the assumption of the risk doctrine. [See United States v. White,
at 754 (White, J.).]
Although the holding in White was based upon the
nonretroactivity of Katz, several of the justices did express views
on the effect of Katz on participant electronic surveillance. Mr.
Justice White, writing for the Chief Justice and Justices Stewart
and Blackman, suggested that On Lee remained sound law.
Justices Brennan, Douglas, Harlan and Marshall each wrote
separate opinions arguing that the result in On Lee could not
survive Katz, Mr. Justice Black, concurring in the judgment of
the Court, did not address this issue, merely reasserting the
position taken in his Karz dissent that electronic surveillance was
not within the ambit of the Fourth Amendment.
Proponents of the assumption of the risk doctrine,
apparently recognizing the significant intrusion upon an
individual's privacy caused by participant monitoring, do not
say that everyone must anticipate and risk warrantless
surveillance; rather, they limit its application to those who
contemplate illegal activity. But never do these proponents
explain how, absent the Fourth Amendment requirement of
antecedent justification before a neutral magistrate, the sinful
can be separated from the saintly without probing everyone or
leaving the selection to the unbridled discretion of government
agents.
Adoption of ‘the assumption of the risk theory ultimately
rests on the cynical conclusion that a warrantless search is
justified by what it reveals.
16
In the conclusion of her dissenting opinion, Judge
Hufstedler, in Holmes v. Burr, supra, sets forth cogent argument
indicating how destroying a right protected by the Fourth
Amendment because of distaste for the remedy, ultimately
destroys the Fourth Amendment itself. In 14 Cr. L. 2063, the
dissent explained:
“Dissatisfaction with the exclusionary rule as the
predominate remedy for conduct violating the
Fourth Amendment is understandable and
defensible. Attacks on the constitutional right of
privacy as the means of expressing dissatisfaction
with the remedy are intellectually indefensible
and dangerous. A_ constitutional right
continuously diluted becomes no right.
Destroying a right protected by the Fourth
Amendment because of distaste for the remedy
makes little more sense than destroying a patient
for failure to respond to chosen medication. If
the remedy is wrong, it is time to reexamine the
remedy, not to diminish the right.”
In Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357,
this Court held that the use of illegal electronic
interceptions are proper defenses under certain circumstances.
See also, United States v. Giordano, 416 U.S. 505, 94 S. Ct.
1820.
17
IV.
THE ELECTRONIC SURVEILLANCE WAS NOT
PROPERLY MINIMIZED BECAUSE THE
INDISCRIMINATE LISTENING FOR TWO MINUTES
“ON” AND ONE MINUTE “OFF” WAS, IN EFFECT, A
ROVING GENERAL OR EXPLORATORY SEARCH
WHICH VIOLATED THE FOURTH, FIFTH, AND SIXTH
AMENDMENT RIGHTS OF THE SUBJECTS OF THE
ELECTRONIC “BUGGING’,
In United States v. Gigante, 738 F. 2d 502 (2 Cir. 1976), a
failure to comply strictly with requirements of 18 U.S.C, §§2510-
2520 was deemed fatal and required suppression of the evidence.
(See also, People v. Sher, 38 N.Y. 2d 600, and People v.
Nicoletti, 35 N.Y. 2d 249.)
Section 2518(5) of 18 U.S.C. clearly requires strict
minimization.
The representation by Mr. Alexander concerning the Black
tax case turned out to be very much in error when five days
later, the Government by order of Judge Jonas, turned over the
“airtels” (intra-bureau messages) prepared by Agent
Pennypacker (Transcript p. 596, December 18, 1967).
It is clear that secondary memoranda under Alack
surveillance which were turned over, thereafter revealed that the
F.B.1, had a deep interest in the tax case to the point that the
Kansas City Federal Bureau of Investigation Office was directed
to identify all witnesses appearing before the Black grand jury
which returned the tax indictment. There, as here, there was no
doubt interchange with labor management and other agencies of
the Federal Government.
it should also be remembered that the I.R.S. was involved
in this investigation and, in fact, tax counts are included, as
against Fiumara and others. See the petition for certiorari in
McGarry v. United States, 1184, October Term 1967, No. 37,
October Term 1968. There it is revealed that Mr. Owen Burke
Yung conducted one of the many wiretaps in Miami, Florida, on
a gambling suspect. The tape recordings were sent to Yung in
Washington. After listening to them, he would telephone
information to the relevant field men conducting investigations.
Yung made no records. He erased the tapes after he passed on
all information. He did not tell the field man where he got the
information. Wiretap admissions by the Department of Justice
were to some extent based on Mr. Yung’s questionable
memoranda of “thousands of voices” heard three and four years
ago. (See petition for a writ of certiorari, McGarry v. United
States, supra, 4-10; typed transcript of testimony of Owen Burke
Yung, pp. 109-153, before Sub-Committee on Administration
Practice and Procedure of the Senate Committee on the
Judiciary, April 4, 1967.)
It is for this, and other reasons, that we submit that the
indiscriminate eavesdropping in Buzzanca’s office and other
indiscriminate eavesdropping was so prejudicial and should be
condemned by this Court because there was no effort to
minimize in any real sense.
United States v. White, supra, was a plurality opinion, as
we have indicated. Cases like White, however, cannot be read as
“consent search cases”. First, this Court’s opinion
discussed Katz, not the third party consent cases. Second, it
would be anomalous to conclude that a search is made legal by
the consent of the Government agency or agent conducting the
search.
Thus, if the invasion of privacy by electronic surveillance
carried on the person of Montella is deemed a consent search, it
is obvious that it falls far short of the requirements of the
Fourth Amendment because no warrant was obtained.
Justice Harlan, in his dissenting opinion in White, 401 U.S.
at 787-89, aptly observed:
“Authority is hardly required to support the
proposition that words would be measured a
19
good deal more carefully and communication
inhibited if one suspected his conversations were
being transmitted and transcribed. Were third
party bugging a prevalent practice, it might well
smother that spontaneity — reflected and
frivolous, impetuous, sacreligious and defiant
discourse — that liberates daily life. Much
offhand exchange is easily forgotten and one may
count on the obscurity of his remarks, protected
by the very fact of a limited audience, and the
likelihood that the listener will either overlook or
forget what is said, as well as the listener’s
inability to reformulate a conversation without
having to contend with a documented record. All
these values are sacrificed by a rule of law that
permits official monitoring of private discourse
limited only by the need to locate a willing
assistant.” [Cf Mincey v. Arizona, 437 U.S. 385,
98 S. Ct. 2408 and Michigan v. Tyler, 436 U.S.
499, 98 S. Ct. (1942).]
See also, Marshall v. Barlow's Inc., 436 U.S. 307, 98 S. Ct.
1816.
If Barlow's, supra, stands for the proposition that
expectations of informational privacy must be considered vis-a-
vis the government the planted spy becomes a ready subject of
Fourth Amendment interest. Once informational privacy is
recognized as an appropriate Fourth Amendment interest, and
once this interest is defined vis-a-vis government, the voluntary
disclosure rationale breaks down. By talking to a confidante, the
defendant in White no more consented to governmental
information gathering than did the defendant in Barlow's who
permitted employees to observe his premises. (Stoner v.
California, 376 U.S. 483, 489-90).
Indeed, if all else fails, the spy hypothetical should make the
point. From the view of informational privacy interests against
government, one would have a heavy burden explaining why the
Fourth Amendment addresses the inspector’s attempt to enter at
20
the front door to gather evidence and yet stands oblivious to the
Government’s undercover entry in the rear for the same pyrpose.
(See Amsterdam, Perspectives on the Fourth Amendment, 58
Minn. L. Rev. 349, 365, where the author asserted:
“I can conceive of no rational system of concerns
and values that restricts the government's power
to rifle my drawers or tap my telephone but not
its powers to infiltrate my home or my life with a
legion of spys.”
In fact, Amsterdam suggested that the Government's use of
spys may be more intrusive than its use of third party electronic
surveillance. Jd. at 407-409.
In connection with the foregoing, the Court should have
given in haec verba the entrapment charge on Count 84 that
Buzzanca requested.
A. The entrapment charge was warranted.
Ever since 1932, when this Court decided Sorrells
v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413, the
“defense” of entrapment has been recognized in the federal
courts. The Second Circuit, by means of the opinion of Judge
Learned Hand, provided the delineation of issues in United
States v. Sherman, 200 F. 2d 880 (2nd Cir. 1952):
“Two questions of fact arise: (1) did the agent
induce the accused to commit the offence (sic.)
charged in the indictment; (2) if so, was the
accused ready and willing without persuasion and
was he awaiting any propitious opportunity to
commit the offence (sic.). On the first question
the accused has the burden; on the second the
prosecution has it.” (200 F. 2d at 882).
Judge Hand’s definition of “inducement,” thereafter
repeatedly adopted in the Second Circuit as well as many other
circuits, includes “soliciting, proposing, initiating, broaching or
21
suggesting the commission of the offence (sic.) charge” (id. at
453). Thus the accused’s burden as to this issue has been
described as “relatively slight” [United States v. Henry, 417 F.
2d 267 (2nd Cir. 1969), cert. denied, 397 U.S. 953 (1970)], This
issue does not, however, include the degree of pressure exerted
[United States v. Pugliese, 346 F. 2d 661, 663 (2nd Cir. 1965);
United States v. Jones, 360 F. 2d 92, 96 (2nd Cir. 1966); United
States v. Riley, 363 F. 2d 955, 95% (2nd Cir. 1966)],
In the case at bar, Mr. Montella suggested that Mr.
Buzzanca accept $1,000 as a Christmas gift on December 12th,
1978 by broaching the subject with him as follows:
“I got a little somethin’ for ya for Christmas. . .”
[Government Exhibit 414(A) at 2].
Mr. Buzzanca apparently ignored this statement (for some
32 pages) until Mr. Montella brought it up again, saying:
“Go back to work, Tommy. This is a letter of
with a thousand dollars, from me to you for
Christmas.” [Government Exhibit 414(A) at 34],
It was Mr. Montella, discussing the “gift,” who explained
the involuntary nature with the statement:
“I'm forcing this on you.” [Government Exhibit
414(A) at 37].
While the Government attempts to bolster its “propensity”
argument with a claim of a prior payment in 1977, another
factual issue is raised by Mr. Montella’s statement on December
12, 197% that:
“You never took a _ ~»nickel from me.”
(Government Exhibit 414(A) at 35],
These four quotations alone are sufficient, we respectfully
assert, to meet Mr. Buzzanca’s “slight” burden of proof with
regard to Judge Hand's first issue of fact. Accordingly, the
burden should shift to the Government as to the second issue.
22
The Government thus argues, as it must, that all other
violations of Title 29 U.S.C. §186(b) included in the indictment
and the subject of evidence introduced at the trial show
“propensity.” The short answer is that the violation set forth in
Count 84 is out of character for Mr. Buzzanca — even according
to the Government's theory of the case. Mr. Buzzanca is accused
of receiving money as an agent for another; in Count 84, he is
accused of receiving money for himself. The Government
attempts to blunt this distinction by its argument that the Courts
recognize no difference. However, in spite of the obvious legal
difference [see charges of the Hon. Charles E. Stewart, Jr. in
United States v. Scotto and Anastasio, 79 Cr. 32 (CES) given
on November IIth, 1979, Tr. 7460-7461] it is the factual
difference which is relevant here; not the legal difference. The
possibility that no matter what Mr. Buzzanca’s other crimes, if
any there be, and general disposition, he might not have taken
$1,000 from Mr. Montella on December 12th, 1978 unless
confronted with inducements cannot be ignored. Other crimes
do not forever outlaw even the criminal and open him to
prosecutorial practices aimed at securing his _ repeated
conviction, from which the ordinary citizen is protected.
The law is clear: “Where an issue of fact is presented
regarding the existence of an inducement, ‘the production of any
evidence negating propensity, whether in cross-examination or
otherwise, requires submission to the jury, however
unreasonable the judge would consider a verdict in favor of the
defendant to be.” ” [United States v. Henry, 417 F. 2d 267, 270
(2nd Cir. 1969), quoting United States v. Riley, 363 F. 2d 955,
959 (2nd Cir. 1966) (per Friendly, C.J.).] Here various issues of
fact require submission to the jury:
(1) Did Mr. Montella induce Mr. Buzzanca to accept
a $1,000 Christmas present on December 12th,
1978?
(2) If so, does the evidence tending to show that Mr.
Buzzanca theretofore acted as a conduit for other
payments made by Mr. Montella to Mr. Fiumara
demonstrate — inspite of the tape of the
December 12th, 1978 conversation — that Mr.
23
Buzzanca was ready and willing without
persuasion to take money for himself and that he
was awaiting any propitious opportunity to do
so?
It was plain error to refuse Mr. Buzzanca’s requested charge
on the defense theory of entrapment to Count 84.
Vv.
THE FAILURE TO HAVE GRANTED A SEVERANCE
GRAVELY PREJUDICED THE PETITIONERS HEREIN
SINCE EVIDENCE OF TOTALLY UNRELATED AND
UNCONNECTED CRIMES WERE INTRODUCED
AGAINST PETITIONERS, RELATING ONLY TO CO-
DEFENDANTS, TO SAY NOTHING OF OTHER
IRRELEVANT EVIDENCE WHICH WAS ADDUCED
AGAINST OTHER DEFENDANTS, HAVING NO
BEARING ON PETITIONERS HEREIN. THIS SPILLOVER
PREJUDICE COULD NOT POSSIBLY BE CURED BY
INSTRUCTIONS, WHICH, IN FACT, WERE VIRTUALLY
NEVER GIVEN.
Substantial evidence was introduced linking co-defendant
Michael Clemente with organized crime and with a million
dollar illegal transaction involving Netumar Steamship Line,
through Gerald Swanton, which had nothing whatsoever to do
with the petitioners herein.
The court also permitted testimony concerning income tax
counts against Clemente, which had nothing to do with the case
herein.
It also allowed evidence that co-defendant Gardner had
received illegal loans from employers of International
Longshoremen’s Association members.
It also permitted evidence concerning Gardner’s failure to
file income tax returns for four years and Gardner’s failure to
disclose a number of liabilities to banks from whom he applied
for loans.
24
On top of this, the district judge permitted evidence of
arson, as well as other criminal events, which supposedly took
place at a bowling alley with which Gardner was affiliated.
None of these items had anything whatsoever to do with the
petitioners herein.
We submit that with respect to petitioner Coppola, the
error was even more pronounced because he was only convicted
of the conspiracy count, and nothing else. This point is dealt
with in considerable detail in the briefs in the court below.
The sheer length of the case, comprising over 20,000 pages,
was ipso facto prejudicial to each petitioner and should have
been avoided by the granting of severances.
Vi.
THE CHARGE OF THE COURT WAS FATALLY
DEFECTIVE, ESPECIALLY IN ITS DEFINING OF
“WRONGFUL”.
Coppola and Fiumara were not officers of any I.L.A.
Union. Additionally, it must be borne in mind that there was no
issue in this case of physical fear or fear of violence.
The trial court began its instructions on extortion (12570-
12582)? by stating in broad terms the two independent elements
that the jury must find in determining whether the alleged
offenses were “wrongful”:
“the defendant ...had no lawful right to the
property obtained and that the property was
obtained because of the victim's fear of economic
loss.” (Emphasis added.) (12576).
Thereafter, the judge confused one element with another,
making them interdependent, ultimately permitting the jury to
2. Numerals in parentheses refer to pages of the offical court reporter's
minutes of trial, unless otherwise indicated.
25
convict Coppola and Fiumara solely on their finding that
Montella was motivated by a broadly defined fear of economic
injury.
To begin with, under the trial judge’s instruction, there was
no issue in this case of physical fear or fear of violence: “The
term ‘fear’”, he instructed, “does not in this case refer to
physicial fear or fear of violence.” (12571). Rather, the element
of fear will have been proved in this case, he explained, if the
evidence shows that the payor of the money “had a state of
anxiety, concern or apprehension of this type of anticipated
economic loss to or adverse effect on business.” (Emphasis
added.) (12572). Nor, the judge instructed, must the fear “be the
consequence of a direct threat ...”; it is “sufficient that the
surrounding circumstances render the victim’s fear reasonable.” .
Ibid.
Having thus defined “fear”, the court instructed the jury
that if “you find beyond a reasonable doubt that the
defendant ... deliberately and intentionally utilized another
person’s fear of economic loss to obtain property from ‘hat
person ...then this first element of the extortion count is
satisfied.” (Emphasis added.) (12574).
Pausing at this juncture, it is clear that the court’s definition
— thus far — would include the vast majority of business and
professional dealings conducted in this country; many lawyers,
stockbrokers and insurance agents who obtain fees “deliberately
and intentionally utilize [the client’s] fear of economic loss to
obtain property from that person.” Indeed, in the context of the
facts of this case, it is clear that the “fear of economic loss” was
defined to include the fear of failing to obtain economic gain:
the Government's allegation here was that the payor sought to
obtain business that he did not have; and his alleged fear was
that he would not obtain such new business — or retain it once
he obtained it — unless he paid and continued to pay. If “fear of
economic loss” is thus defined to include “failure to obtain
economic gain”, there is hardly a business or profession in any
free market society that would not come within the court’s
expansive definition.
26
But the trial court’s instruction became even more over-
inclusive at this point. After instructing the jury — fleetingly at
best —- that it must find that the defendant had no lawful right
to the property obtained, and also that the property was
obtained because of the victim’s fear of economic loss (12576),
the court then proceeded to change its definition and instruct the
jury that extortion is established if the defendant had no
legitimate right to the property or if the “payment was induced
by wrongful threat cr fear of economic loss.” Notwithstanding
Coppola and Fuimara’s status as private citizens who are not
officers of any union, the judge gave the following instruction in
the context of defining “wrongful”:
“[T]Jhis statute does not prohibit any person
from using his position of power or influence to
obtain legitimate economic ends. The obtaining
of money by one who is functioning as a
salesman or a _ broker for the successful
solicitation or referral of business, or for use of
his influence, good will, or advice, does not in
and of itself constitute extortion unless you find
that the payment of such monies was induced by
wrongful threat or fear of economic loss.”
(Emphasis added.) (12577).
The plain meaning of this instruction is that all such business
activities do constitute extortion if the payment of monies was
induced by “wrongful threat or fear of economic loss.” This
means that virtually all such businesses are, under the trial court’s
instruction, extortionate, since few people pay out money unless
they fear loss, or hope for economic gain, by the payment of
money for the services sought.
At this point in its lengthy instructions, the trial judge
proceeded to invent a legal right that is utterly preposterous in a
free market economy: he instructed the jury that “any company
or individual has the right to obtain business from another
company without making payments to a third party.” (Emphasis
added.) (12577). This instruction constituted nothing less than a
peremptory direction to the jury that a// middle-persons,
facilitators, influence peddlers, agents, and brokers —- who, by
27
definition, are third parties receiving payments for helping
others to obtain business — have no legal or legitimate rights to
such payments and are engaged in “wrongful” conduct. It will
come as a great surprise to the American business community to
earn about this newly discovered “right to obtain
business ... without making payments to a third party.” Of
course, no such right exists, as millions of businesspersons who
give or receive such third party payments fully understand; in
fact under certain circumstances it is improper to deal directly
with a principal with whom one seeks to do business, and a
requirement that the business must be obtained through a third
party.’
We again urge that the court erred in submitting the Taft-
Hartley counts because the case was presented to the jury on a
theory of criminal liability not contained in the indictment, and
the evidence was insufficient to establish guilt beyond a
reasonable doubt, of aiding and abetting the violation of the
Taft-Hartley Act.
Finally, the court and prosecution improperly interfered
with the defense summation and injected extraneous matter into
the trial of these counts.
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted,
IRVING ANOLIK
Attorney for Petitioners
3. In the court of appeals, because the record of trial was over 20,000
pages, counsel necessarily had to divide the work among them, and, we
therefore ask this Court again to review the court of appeals briefs of all
appellants because we believe they are significant herein.
APPENDICES
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
--
Nos. 549, 550, 551, 552 and $53—September Term, 1980
(Argued November 5, 1980 Decided February 26, 1981)
Docket Nos. 80-1261, 80-1263, 80-1271, 80-1273, 80-1275
+
UNITED STATES OF AMERICA,
Appellee,
—_—Veo—
MICHAEL CLEMENTE, TINO FIUMARA, THOMAS BUZZANCA,
VINCENT CoLucci, CAROL GARDNER, MICHAEL
CoPOLLA and GERALD SWANTON,
Defendants-Appellants.
Before:
FEINBERG, Chief Judge,
FRIENDLY and MESKILL, Circuit Judges.
+
Appeals from judgments of conviction after a jury trial
entered in the United States District Court for the
2a
Appendix A
Southern District of New York, Leonard B. Sand, Judye,
convicting the defendants of violating the Racketeer In-
fluenced and Corrupt Organizations Act (RICO), 18
U.S.C. § 1962(c) and (d); the Hobbs Act, 18 U.S.C.
§ 1951; the Taft-Hartley Act, 18 U.S.C. § 186(b); the
Internal Revenue Code, 26 U.S.C. §§ 7201 and 7206(1)
(1976); and of committing perjury before a grand jury in
violation of 18 U.S.C. § 1623 (1976).
Affirmed.
aoe
ALAN M. DersHowitz, Cambridge, Massa-
chusetts (Nathan Dershowitz, Jeanne
Baker, David Fine, Cambridge, Massa-
chusetts, Of Counsel, Richard Strafter,
Holly Skolnick, John Batter, Joann
Crispi, Cambridge, Massachusetts, On
the Brief), for Appellant Clemente.
CarL M. BORNSTEIN, New York, New York
(Barry A. Bohrer, New York, New York,
Of Counsel), for Appellant Colucci.
HERBERT O. REID, Sr., Howard University
School of Law, Washington, D.C. (Wil-
liam A. Borders, Jr., Washington, D.C.,
Of Counsel), for Appellant Gardner.
IRVING ANOLIK, New York, New York, for
Appellants Buzzanca, Fiumara and Co-
polla.
Maurice M. McDermott, New York, New
York (Paul R. Grand, Norman L. Os-
trow, Grand & Ostrow, New York, New
3a
Appendix A
York, Of Counsel), for Appellant Swan-
ton,
MICHAEL S. DEvVORKIN, Assistant United
Staies Attorney, New York, New York
(John S. Martin, Jr., United States Attor-
ney for the Southern District of New
York, Daniel H. Bookin, Ruth N.,
Glushien, Mary Jo White, Assistant
United States Attorneys, New York, New
York, Of Counsel), for the United States
of America.
ao
MESKILL, Circuit Judge:
This case concerns racketeering activity that has
plagued waterfront businesses in New York and New
Jersey. Judgments of conviction were entered in the
United States District Court for the Southern District of
New York after a twelve-week jury trial before Judge
Sand. The indictment contained 213 counts, charging the
defendants with engaging in extortion in violation of the
Hobbs Act, 18 U.S.C. § 1951 (1976); receiving bribes in
violation of the Taft-Hartley Act, 29 U.S.C. § 186(b)
(1976); conducting and conspiring to conduct an en-
terprise’s affairs through a pattern of racketeering ir.
violation of the Racketeer Influenced and Corrupt Or-
ganizations Act (RICO), 18 U.S.C. §§ 1962(c) and (d’
(1976); evading taxes and filing false tax returns in viola-
tion of 26 U.S.C. §§ 7201 and 7206(1) (1976); and making
false declarations before a grand jury in violation of 18
U.S.C. § 1623 (1976). A schedule listing the defendants’
various convictions and the sentences imposed appears in
the appendix.
4a
Appendix A
BACKGROUND
The evidence offered by the government at trial de-
picted Michael Clemente as the ringleader of a highly
organized enterprise that had infiltrated all aspects of
waterfront business, including labor, shipping, and ship-
servicing. Clemente’s specific area of control was identi-
fied as the New York waterfront. The evidence described
the other defendants as follows: Fiumara acted as the
New Jersey waterfront “boss” but was subordinate to
Clemente; Ceyolla was a personal assistant to Fiumara;
Gardner aud Colucci were presidents of two New Jersey
International Longshoremen’s Association (ILA) locals
and answered directly to Fiumara in connection with their
illicit activities; Buzzanca was president of two New York
ILA locals and conducted his activities under the supervi-
sion of Fiumara; and Swanton, a vice-president of a
shipping company in New York, worked closely with
Clemente.
The linchpin of the enterprise was its control of the
ILA in New York and New Jersey; with this power it was
able to extort monies from shipping companies and in-
fluence their decisions regarding the allocation of ship-
servicing contracts. The latter influence empowered the
enterprise to extort monies from the companies that
provided services such as the lashing and carpentry work
required in connection with loading and unloading cargo.
Only those shipping companies and ship-servicing compa-
nies that paid the amounts demanded by the enterprise, or
“did the right thing” in the argot of the waterfront, had
their ships’ cargo loaded and unloaded without interrup-
tion or obtained and retained contracts to provide their
services. The evidence adduced at trial largely concerned
dealings between each of the defendants and the govern-
Sa
Appendix A
ment’s principal witness, William Montella, who was
employed by several ship-servicing companies during the
indictment years.
The Court-Authorized Surveillance
Between August 1977 and March 1978 the government
monitored oral conversations through listening devices
installed in Montella’s offices, which had been authorized
by court order pursuant to 18 U.S.C. §§ 2510-2520
(1976).' The intercepted conversations combined with
physical surveillance of Montella provided the govern-
ment with substantial proof of Montella’s pattern of
ronthly deliveries of cash to the defendants Clemente
and Buzzanca.’ Montella was approached by the govern-
ment in May 1978 and agreed to cooperate in June of that
year.’ From June through December 1978 Montella met
with several of the defendants and successfully recorded
sixteen of their meetings.‘
Additionally, several consensual recordings made in the
course of an independent New Jersey state investigation
were admitted into evidence. In one conversation
Fiumara promised a New Jersey undercover officer cer-
tain waterfront business and, in another, Copolla
! Six extension orders were issued to continue the surveillance. See 18
U.S.C. § 2518(5) (1976).
: Court-authorized listening devices were also planted in Buzzanca’s
offices between March 1978 and June 1979. Conversations concerning
arrangements of meetings between the various detendants and discus-
sions about the extortion of waterfront companies were intercepted.
: Montella agreed to plead guilty to two five-year felonies of con-
spiracy and one five-vear telony for tax evasion.
4 During these meetings Montella used government tunds to pay
Clemente $7,000, Fiumara $4,000, Buzzanca $13,000, and Gardner
$1,000.
6a
Appendix A
described Fiumara’s waterfront control and Copolla’s
own role as Fiumara’s assistant.
The Netumar Account
From 1970 to 1972 New Jersey Export Co. (N. J.
Export) served as the carpentry contractor for Netumar
Steamship Line (Netumar), which operated from Pier 36
in Manhattan. At that time, Montella was the general
foreman for N. J. Export. Montella testified that begin-
ning in 1970 or 1971 defendant Swanton, then a vice-pres-
ident of Netumar, threatened that unless Montella agreed
to “do the right thing” Swanton would “throw them out”
and find another company that would make the payoffs
demanded. Swanton informed Montella that he was asso-
ciated with Clemente, who was the behind-the-scenes boss
who ran the East River Piers in Manhattan, and that
some of the kickback money would be given to Clemente.
When Montella asked Swanton how he was expected to
raise the cash to make the payoffs, Swanton instructed
him to inflate his materials bills. Montella agreed to make
the payoffs and admitted that he later kept some of the
money generated in this manner for himself.
When Montella left N. J. Export to join a Brooklyn-
based company, C. C. Lumber Co., he asked Swanton
whether his new employer could obtain the Netumar
account. Swanton denied the request, asserting as his
reason Clemente’s dislike for Anthony Scotto, the
Brooklyn ILA local president.
In June 1973 Montella left C. C. Lumber and joined
Quin Lumber, another Brooklyn-based carpentry and
lashing company. Quin Lumber’s employees, like those of
C. C. Lumber Co., belonged to the ILA Brooklyn local
run by Anthony Scotto. In early 1974 Swanton called
Montella and advised him that Clemente had resolved his
7a
Appendix A
differences with Scotto and that, therefore, Montella’s
Brooklyn employer could now obtain the Netumar ac-
count. Thereafter, they arranged a meeting where Swan-
ton told him: “Listen. . . zo to the Shelton Health Club.
Ask for Mike C. Give him 500. Give him 500 a month
.. » » Give him 500 and make him happy.” Montella
testified that shortly thereafter he met Clemente at the
Shelton Health Club, where the following exchange took
place:
MONTELLA: Mike, I’m Sonny [Montella]. Gerry
{Swanton] told me to come down.
I'm with Quin Lumber and I’m going
to be doing the carpentry work down
there.
CLEMENTE: I hope you do the right thing. I hope
you are not cheap.
MONTELLA: I’m going to give you 500 a month.
CLEMENTE: Okay. If you have any problems down
there. . . let me know. Go out and
make money.
Montella testified that some time in April or May 1974 he
returned to the Shelton Health Club and handed Cle-
mente $500 in cash in a white envelope. Thereafter,
Montella delivered $500 in the same manner once a
month through December 1976. Montella testified that he
continued to make the payments because he feared that if
he stopped he would lose the Netumar account.
In 1976 Montella placed a bid with Netumar for the
contract to perform the lashing work in addition to the
carpentry services his company already was providing.
When Montella’s bid was rejected, he approached Cle-
mente for assistance. Clemente gave Montella instruc-
8a
Appendix A
tions; Montella followed them and was subsequently
awarded the lashing contract with Netumar. Later, Cle-
mente asked for another $500 per month and Montella
acquiesced. Thereafter, from January 1977 through De-
cember 1978 Montella paid Clemente $1,000 in cash at
their monthly meetings at the Shelton Health Club.
During the same period in which Clemente was receiv-
ing payoffs from Montella, he had also arranged to
receive $200,000 per year from Netumar itself. When
Netumar began its operations at Pier 36 in Manhattan, it
believed that it was being grossly overcharged by its
stevedore, United Terminals, Inc. (United). Charles Matt-
man, Netumar’s president, approached officials of
United and attempted to negotiate a reduction of the
$800,000 annual equipment rental fee it was paying or to
buy the equipment outright. United offered to sell the
equipment for $1 million, a price considered excessive by
Mattman. Mattman then approached Clemente for assist-
ance. Clemente offered to intervene provided that Matt-
man agreed to pay him 25 cents for each dollar Clemente
saved Netumar. Following Clemente’s intervention United
sold the equipment for $300,000. Thereafter Netumar
paid Clemente $200,000 in quarterly cash installments
each year. Netumar made these payments from 1973
through 1978 in restaurants in Brooklyn and Manhattan.
The Concordia Line Account
In June 1975 another shipping company, the Concordia
Line, decided to move its operation from Hoboken, New
Jersey, to Newark. Castelo and Sons Ship Servicing Co.,
which had been providing the lashing work for Concordia
in Hoboken about this time, was approached by defen-
dant Carol Gardner, the president of the black ILA local
in Newark. Gardner advised Manuel Castelo and Joseph
9a
Appendix A
Castelo, Jr. that they would have to pay him certain
amounts of money to retain the Concordia account once
it moved to Newark. The Castelos, who were friends of
Montella, informed him about Gardner's demands.
Montella subsequently contacted Gardner and inquired
about the Concordia Line account. Gardner told Mon-
tella to meet him and his “partner,” defendant Vincent
Colucci, in Miami to discuss the matter. Colucci was then
president of the white ILA local in Newark. Montella met
with Gardner in Miami but did not reach a final agree-
ment. They continued their discussions in New York,
where Montella ultimately agreed to pay Gardner and
Colucci $10,000 cash up front and $2,000 cash each
month for the Concordia Line account. Montella also
’ agreed to pay secretly to Gardner an additional $10,000
cash and promised not to disclose this clandestine pay-
ment to anyone, including Colucci. In August 1975 Mon-
tella met with Gardner and handed him $20,000 in cash.
In September 1975 Montella was advised by a Concordia
Line official what rates to bid and shortly thereafter was
awarded the contract.
Although it had been agreed that Gardner and Colucci
would share Montella’s $2,000 monthly payoffs, Mon-
tella soon began to receive separate demands for the
money from each of them. Each month Montella paid
Gardner but, nevertheless, received an additional demand
from Colucci. Montella arranged a meeting among the
three of them to attempt to straighten out the problem,
but the meeting achieved less than satisfactory results.
Afraid that he would continue to be “double-banked,”
as he later termed it, by Gardner and Colucci, Montella
arranged a meeting with Clemente to seck his assistance.
Montella met with Clemente at the Shelton Health Club
in December 1975 and explained the situation to him.
10a
Appendix A
Clemente informed Montella that had he approached him
initially he could have avoided paving any money to
Colucci and Gardner. Clemente admonished Montella,
however, that “[..jow you made a commitment you got to
live up to it.” Although Clemente insisted that Montella
live up to his “commitment,” he advised him to see the
defendant Buzzanca and “tell him you are with me and
tell him the story.”
Subsequently, Montella adventitiously met Clemente
and Buzzanca at a restaurant in Brooklyn. Clemente
introduced Montella to Buzzanca and requested that he
recount his story to Buzzanca. Buzzanca apologized to
Clemente for the trouble that Montella had experienced
and promised to clear up the problem. Buzzanca told
Montella to make the monthly payments directly to him
in the future. When Gardner and Colucci next called him,
Montella informed them that he had been instructed not
to make his monthly payoffs to them any longer and that
they would be receiving instructions as well. Montella did
not again hear from Gardner or Colucci in connection
with this matter.
Montella complied with Buzzanca’s directions and paid
him $2,000 cash at Buzzanca’s office. The first payment
was made in the presence of defendant Fiumara, whom
Buzzanca had asked to listen to another rendition of
Montella’s Concordia story. Montella continued to deliver
the $2,000 cash payments to Buzzanca at his office or in
the men’s room of a New York restaurant.’ Montella
testified that the payments he made to Buzzanca were
handed over to Buzzanca’s boss, defendant Fiumara. The
5 On several occasions Fiumara’s assistant, Copolla, came by Mon-
tella’s offices and picxed up the payoff money. On one occasion
Laurence Ricci, another assistant to Fiumara, picked up a payment at
Montella's offices.
Appendix A
payments continued through December 1978 when
Fiumara himself picked up a $2,000 payment.
The Chilean Line Account
In 1975, during the same period in which Gardner and
Colucci succeeded in coercing Montella to pay $2,000 per
month for the Concordia Line account, they advised
Montella that unless he paid them an additional $2,000
per month he would lose his account with the Chilean
Line. Montella protested that he had obtained the Chil-
ean account many years before in Brooklyn, and that it
would be unfair to demand cash from him to retain it.
Gardner replied, “Wrong, that’s my account,” and ad-
vised Montella that to retain the account he had to pay
the amount they were demanding. Montella testified that
the following dialogue ensued:
MONTELLA: I got to get out? Just like that I got
to get out?
GARDNER: That’s it.
COLUCCI: That’s it.
MONTELLA: First I buy the Concordia Line and
now all of a sudden I am getting
thrown out of the Chilean Line.
GARDNER &
COLUCCI: That’s what the boss said, the boss
wants you out.
MONTELLA: The boss, who is the boss? I thought
you were the boss.
GARDNER: You don’t know who the boss is?
MONTELLA: No.
GARDNER: T is the boss.
12a
Appendix A
Montella testified that “T” was the defendant, Tino
Fiumara. Monteila subsequently advised the vice-presi-
dent of the Chilean Line that he would no longer “do his
vessels in the Port of New Jersey. . . because it was just
a little too expensive . . . to do his business.”
Clemente and Fiumara—The Bosses of the Enterprise
The government introduced tape recordings of conver-
sations in which several of the defendants professed their
loyalty to defendant Fiumara and recognized his author-
ity over them. Buzzanca, for example, stated on one
occasion:
Tino’s good point is that everybody fears and re-
spects him. That’s a good thing. .. .
* od ™ * *
I love Tino and I would do anything in the
world ....
* * * * *
I love him. I love him. And I got to. Ya know like,
and I live with him everyday. I absolutely think, if
this guy tempers himself, he’ll be, ten years from
now, he’ll be awesome. . . . He’ll have the best of
two worlds. Good sense, good judgment. Plus,
which we all live under fears. Ya need to have that
balance. . . . [W]Je’ll make money. We'll steal it, if
we have to.
* * * + *
Somehow I get in fact, I notice in Tino and more
than Mike. I come from the greatest guy in the
world.
13a
Appendix A
On another occasion, the following statement was made
by defendant Gardner concerning defendant Fiumara:
I don’t make no move until I, you know, check
with, I do the right... . ! don’t have the last
decision.
I say I’m very loyal to this guy.
Additionally, the government offered evidence of numer-
ous instances in which Fiumara coordinated activities and
meetings among Copolla, Buzzanca, Colucci, and
Gardner.
Fiumara’s authority on the waterfront, however, was
not supreme. The government introduced a great deal of
‘evidence demonstrating that Fiumara was subordinate to
Clemente. For example, Clemente’s handling of Mon-
tella’s problems with Gardner and Colucci, who answered
directly to Fiumara, demonstrated Clemente’s power to
control Fiumara’s subordinates, and thus Fiumara. Addi-
tionally, in 1978 Clemente was able to arrange increased
business for Montella on the New Jersey waterfront,
Fiumara’s territory, illustrating Clemente’s commanding
position in the enterprise. After Fiumara acceded to
Clemente’s request that Montella be given more business,
Clemente boasted that “Tino give me some satisfaction.”
Finally, Clemente took steps to protect the enterprise
from investigations, evincing his patriarchal role. F
example, the government introduced evidence that Cle
mente obtained a secret New York Waterfront Commis-
sion document containing information about federal elec-
tronic surveillance of Montella, Buzzanca, Gardner, Co-
lucci, and others.
14a
Appendix A
The Defendants’ Case
Of the defendants, only Gardner anu Swanton testi-
fied. Gardner denied all of the allegations that had been
asserted against him and stated that he was the victim of a
racially motivated conspiracy by the government against
blacks. Swanton also contested the charges brought
against him and testified that, contrary to his own pre-
vious grand jury testimony, he had not possessed the
power to choose the carpentry and lashing contractors for
Netumar. He testified that he did not believe that Cle-
mente had any influence on Pier 36 in Manhattan.
I.
The Hobbs Act Counts
Defendant Clemente asserts that his convictions for
extortion, in violation of the Hobbs Act, 18 U.S.C.
§ 1951 (1976), require reversal because the district court’s
charge was incorrect and because, in any event, insuffi-
cient evidence was introduced to sustain them. We con-
clude that both of these arguments are meritless.
Section 1951 provides in pertinent part:
Whoever in any way or degree obstructs, delays,
or affects commerce. . . by robbery or extortion or
attempts to conspires soto do. . . shall be fined not
more than $10,000 or imprisoned not more than
twenty years, or both.
“Extortion” is defined in the Hobbs Act as
the obtaining of property from another, with his
consent, induced by wrongful use of actual or threat-
ened force, violence, or fear, or under color of
official right.
15a
Appendix A
18 U.S.C. § 1951(b)(2). Clemente’s principal contention
with respect to the court’s charge on the extortion counts
is that the trial court improperly charged the jury on the
element of wrongfulness.
Extortion, as defined in the Hobbs Act, consists of the
use of wrongful means to achieve a wrongful objective.
United States v. Enmons, 410 U.S. 396 (1973). The
Supreme Court’s decision in Enmons teaches that the
applicability of the Hobbs Act to cases such as the one
before us depends on whether the statutorily identified
means (“actual or threatened force, violence, or fear”)
have been put to “wrongful use”, i.e., have been em-
ployed to obtain property to which “the alleged extor-
tionist has no lawful claim.” United States v. Enmons,
supra, 410 U.S. at 400.*
The trial court charged the jury on the elements of
extortion as follows:
First, what is an “extortion”?
The term “extortion” means the obtaining of
property from another, with his consent, induced by
wrongful use of actual or threatened force or fear.
Now, we have said that the word “extortion”
means the obtaining of property from another, with
his consent induced by the wrongful use of actual or
threatened force or fear. In this case, the governmen’
6 In Enmons, the Court held that the Hobbs Act has no application to
cases involving “the use of violence to achieve legitimate union
objectives.” 410 U.S. at 400. Specifically, the Court declared that
where the objective is higher wages in return for “genuine” services,
the Hobbs Act is inapplicable, notwithstanding that violence has been
used to exact such higher wages. The Court emphasized, however, that
cases involving the use of the statutorily proscribed means to obtain
“imposed, unwanted, superfluous and fictitious services” do come
within the purview of the Hobbs Act.
16a
Appendix A
contends that property was obtained through threats
and fear of economic loss.
* - * o *
In the context of the siatute with which we are
concerned, . . . fear means that the alleged victim of
the charged extortion feared possible financial injury
caused by interference with the right to solicit and
obtain business or with the right to retain work.
* * * * *
Let me explain to you how the word “wrongful”
applies to your consideration of these counts.
“Wrongful” means that in order for vou to find
that any of the acts of extortion alleged in these
counts were, in fact, committed, you must find
beyond a reasonable doubt that the defendant or
defendants you are considering had no lawful right
to the property obtained, and that the property was
obtained because of the victim’s fear of economic
loss.
a a * * *
If you find that threats were made or that fear was
reasonably aroused, and if you find that the purpose
of the defendant you are considering was to obtain
money for himself or others to which they were not
entitled, then I instruct you that the element of
wrongfulness has been established.
Clemente insists that, in view of the court’s charge, the
jury could have convicted him solely upon finding that he
used fear of economic loss to obtain money from Mon-
tella. He contends that the use of fear of economic loss is
not inherently wrongful, but rather represents a device
17a
Appendix A
routinely used in legitimate business transactions, and
claims that merely using fear of economic loss to obtain
money does not render the receipt of such moncy wrong-
ful. Thus, he asserts that the requirement set forth by the
Supreme Court in Enmons, that both the “means” and
the “objective” be wrongful to constitute extortion within
the meaning of the Hobbs Act, see 410 U.S. at 400, was
not adequately conveyed to the jury by the district court’s
charge.
We are satisfied that the charge correctly instructed the
jury on the wrongfulness element of the crime of extor-
tion. The thrust of the district court’s charge when read
as a whole, see Cupp v. Naughton, 414 U.S. 141, 146-47
' (1973), was that the use of fear of economic loss to obtain
property to which one is not entitled is wrongful. It is
obvious that the use of fear of financial injury is not
inherently wrongful. And precisely because of this fact,
the “objective” of the party employing fear of economic
loss will have a bearing on the lawfulness of its use. In
this regard, Judge Sand instructed the jury that the
wrongfulness element of the crime would be satisfied
upon finding that fear of economic loss was employed by
the defendants to obtain money to which they were not
lawfuily entitled.
Defendant Clemente interprets Enmons as limiting the
scope of the Hobbs Act to embrace only those cases in
which the means and the objective of the alleged extor-
tionist, when viewed apart from each other are each
wrongful. While this interpretation of the Hobbs Act may
be applicable to cases concerning union demands for
higher wages, at least one Circuit has questioned whether
the Supreme Court’s decision in Enmons requires that the
statute be so strictly construed in other contexts. See
United States v. Cerilli, 603 F.2d 415, 420 (3d Cir. 1979),
Appendix A
cert. denied, 444 U.S. 1043 (1980). In Cerilli, a case
involving lessors of road maintenance machinery who
were forced to make political contributiors to obtain
contracts with a municipality, the Third Circuit deter-
mined that the “manner” in which the property is ob-
tained has a bearing on whether the obiective, “obtaining
the property from another,” is legitimate. In other words,
the Third Circuit declined to evaluate the “objective” of
the defendants in a vacuum, independent of the conduct
involved.
The converse situation exists in this case. Fear of
economic loss is not an inherently wrongful means; how-
ever, when employed to achieve a wrongful purpose, its
“use” is wrongful.
Nor do we agree with Clemente that the court’s charge
on extortion was improper because it would embrace a
broad spectrum of legitimate business transactions. Judge
Sand specifically instructed the jury that the Hobbs Act
does not prohibit any person from using his position
of power or influence to obtain legitimate economic
ends. The obtaining of money by one who is func-
tioning as a salesman or a broker for the successful
solicitation or referral of business, or for use of his
influence, good will, or advice, does not in and of
itself constitute extortion unless you find that the
payment of such monies was induced by wrongful
threat or fear of economic loss.
This instruction insured that the jury would distinguish
the influence peddler who is lawfully entitled to receive
compensation for his legitimate services from persons
such as Clemente who exact tribute from their victims in
exchange for agreements either to exercise or refrain from
exercising the corrupt influence they have acquired.
19a
Appendix A
We conclude, therefore, that the charge was legally
sufficient. See generally United States v. Brecht, 540 F.2d
45, 52 (2d Cir. 1976), cert. denied, 429 U.S. 1123 (1977);
United States v. Tolub, 309 F.2d 286 (2d Cir. 1962).
Clemente also attacks the sufficiency of the evidence
admitted against him in connection with the Hobbs Act
violations. The verdict of a jury must be sustained “if
there is substantial evidence, taking the view most favor-
able to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); accord, Hamling v. United
States, 418 U.S. 87, 124 (1974). We are satisfied that the
government introduced ample proof to demonstrate con-
vincingly that Clemente had no lawful claim to the
monies he obtained from Montella. The government
established that Clemente’s influence with Netumar de-
pended upon his power to call for work stoppages unrela-
ted to any bona fide labor dispute and his willingness to
exercise that power for his own personal benefit. More-
over, the circumstances surrounding the actual payoffs,
such as the clandestine meetings in secluded areas ar-
ranged by Clemente to conduct those transactions, clearly
reflect their illicit nature.
Montella testified that Clemente made numerous state-
ments during those meetings concerning his power over
the waterfront industry. Clemente explained how the
enterprise functioned and told Montella which ILA offi-
cials were under his control. Clemente boasted, for exam-
ple, that he had had great influence in the appointment of
Fred Feld as General Organizer of the ILA and that he
was grooming Scotto to be Feld’s successor. Montella
testified that Clemente’s statements to him convinced him
that Clemente was the power behind the Manhattan piers
and that, therefore, he could easily take the Netumar
account away from him if he chose to do so. Moreover,
20a
Appendix A
other proof of Clemente’s guilty state of mind was
introduced at trial. For example, when Clemente learned
of a pending waterfront investigation, he admonished
Montella never to use his name on the telephone and not
to arouse suspicion. On another occasion, Clemente ad-
vised Montella that he knew that certain ILA officials
would be indicted for extortion and tax evasion; Cle-
mente went so far as to arrange a meeting with Montella
and Anthony Scotto to discuss the threat the waterfront
investigation was posing to their conspiracy. Finally, in
June 1978 Clemente advised Montella that if anyone,
including Scotto, betrayed him, “His life won’t be worth
two cents. In twenty-four hours he'll be gone.”
Here, the defendants used fear of economic loss to
obtain money to which they had no lawful claim. Not-
withstanding defendant Clemente’s argument to the con-
trary, it is clear that a wrongful purpose, obtaining money
to which they had no lawful claim, was the aim of the
defendants. Thus, the utilization of fear of economic loss
to achieve that goal was wrongful. This being the case,
the wrongful means and wrongful use elements of the
crime of extortion were met.
Swanton’s Aiding and Abetting Convictions
Defendant Swanton was convicted on 56 counts of
aiding and abetting Clemente’s extortion of payoff
money from Montella between April 1974 and December
1978. Swanton contends that the district court’s charge
concerning these counts was improper. Additionally,
Swanton attacks the sufficiency of the evidence. We
conclude that neither of these challenges has any merit.
To aid and abet the commission of a crime, a defendant
must “in some sort associate himself with the venture,
. . » participate in it as something that he wishes to bring
2\la
Appendix A
about, [and] seek by his action to make it succeed.”
United States v. Peoni, 100 ¥.24 401, 402 (2d Cir. 1938);
see generally Nye & Nissen v. United States, 336 U.S. 613,
619 (1949); United States v. Stanchich, $50 F.2d 1294,
1300 (2d Cir. 1977); United States v. /fariani, $39 F.2d
915, 919 (2d Cir. 1976); United States y. Garguilo, 310
F.2d 249, 252-53 (2d Cir. 1962).
Paraphrasing Judge Learned Hand’s language in
Peoni, the district court charged the jury:
First, as you no doubt recall from my previous
remarks, in order to find that a defendant was an
aider and abettor, you must find beyond a reasonable
doubt that he had an interest in the crime charged,
that is, that he in some way knowingly associated
himself with the criminal act alleged, that he partici-
pated in it as something he wished to bring about,
that he sought by his action to make it succeed.
In your deliberations as to whether Mr. Swanton
aided and abetted in these counts, you must consider
whether the evidence demonstrates beyond a reason-
able doubt that he participated in it as something
that he wished to bring about, that he sought by his
action to make it succeed with respect to each pay-
ment alleged in each count—the $500 a month pay-
ment from April 1974 through December 1976, and
the $1,000 a month payments from January 1°77
through December 1978.
If you find, however, that the scheme we are
discussing in fact existed but that Mr. Swanton at
some point affirmatively disassociated himself from
it, then you may not consider against him the acts
22a
Appendix A
and the declarations of other participants in the
scheme after that date. (Emphasis added).
Swanton claims, citing United States v. Garguilo, 310
F.2d 249 (2d Cir. 1962), that the district court's charge
was too general; he argues that the jury should have been
instructed that Swanton’s introduction of Moniella to
Clemente in April 1974 alone could not be the basis of
liability under the Peoni standard and the facts of the
present case. The Garguilo case, however, is readily dis-
tinguishable from the one at bar. In Garguilo, a case
involving counterfeiting, the evidence against the defen-
dant Macchia consisted solely of testimony about his
“presence” at a few sessions in whi. the defendant
Garguilo practiced his art or attempted to prepare a
counterfeit plate. Because the trial court in the course of
its charge never told the jurors “in plain words that mere
presence and guilty knowledge on the part of Macchia
would not suffice unless they were also convinced beyond
a reasonable doubt that Macchia was doing something to
forward the crime,” United States v. Garguilo, supra, 310
F.2d at 254, this Court reversed and remanded the case
for a new trial. Here, however, the jury was “plainly”
charged that a conviction of Swanton for aiding and
abetting Clemente required that they find that Swanton
“sought by his action to make [the scheme] succeed with
respect to each payment alleged in each count.” Plainer
language concerning Swanton’s purposiveness could
hardly have been delivered.
Swanton also argues that insufficient evidence to sup-
port his conviction for aiding and abetting Clemente was
introduced at trial. He contends that merely introducing
Montella to Clemente in April 1974, in connection with
the Netumar accoun', could hardly serve as a sufficient
23a
Appendix A
factual predicate for imposing criminal liability for the
payoffs to Clemente during the following four and one-
half years. Moreover, Swanton claims that the fact that he
did not receive any benetit from the transactions he
facilitated between Clemente and Montella illustrates wat
he had no interest in seeing that the venture succeed. but
whether a Hobbs Act defendant personally receives any
benefit from his alleged extortion is largely irrelevant for
the purpose of determining guilt under that Act. See
United States v. Green, 350 U.S. 415, 420 (1956); United
States v. Cerilli, 603 F.2d 415 (3d Cir. 1979), cert. denied,
444 U.S. 1043 (1980); United States v. Trotta, 525 F.2d
1096, 1098 n.2 (2d Cir. 1975), cert. denied, 425 U.S. 971
(1976); United States v. Provenzano, 334 F.2d 678, 686
(3d Cir.), cert. denied, 379 U.S. 947 (1964). Rather, the
controlling issue here is whether sufficient evidence was
introduced at trial for the jury to conclude that Swanton
purposively sought to make the kickback scheme succeed.
This might have been a close question had the govern-
ment not introduced evidence of Swanton’s history of
similar extortionate acts involving the same parties.
Around 1970 or 1971, when Montella was employed by
N. J. Export and was servicing the Netumar Line, Swan-
ton had demanded that Montella kickback monies to him
to retain the account. Thus in 1974, when Swanton
contacted Montella, who at the time was employed by
Quin Lumber, and instructed him to pay Clemente $500
per month to regain the Netumar account, the jury wr
entitled to infer that Swanton intended to create a scheme
similar to the one in which he had actively participated a
few years before.
24a
Appendix A
Il.
Clemente’s Taft-Hartley Convictions
Clemente was convicted on 35 counts of aiding and
abetting the receipt of money Fy Buzzanca, a labor
official. Clemente claims that there was a variance be-
tween the crimes chargeJ in his indictment and those for
which he was convicted. Specifically, Clemente contends
that while the indictment charged him with aiding and
abetting the receipt of illegal labor payments, in violation
of 29 U.S.C. § 186(b) (1976), the proof at trial demon-
strated, if anything, that he aided and abetted the making
of those illegal payments, in violation of 29 U.S.C.
§ 186(a) (1976). We conclude that in light of the great
quantity of proof introduced by the government concern-
ing the key role that payoffs to union leaders played in
the overall scheme of the criminal enterprise, the limited
direct proof of Clemente’s purposiveness in assisting
Buzzanca’s illegal receipt of the monies was sufficient to
support Clemente’s conviction on these counts.
It is clear from the record that Clemente facilitated the
arrangement between Montella and Buzzanca. Montella
informed Clemente in 1975 about the trouble he was
experiencing in connection with his payoffs to Gardner
and Colucci concerning the Concordia Line account.
Clemente advised Montella that he would have to live up
to the commitment he made, but that he should “go see
this kid Tommy Buzzanca, tell him you are with me and
tell him the story.” Shortly thereafter, Clemente intro-
duced Montella to Buzzanca at an unplanned rendezvous
in Ponte’s restaurant in lower Manhattan. At Ponte’s,
Buzzanca assured Clemente that “I’ll take care of it from
here,” and told Montella in Clemente’s presence to “see
me in my office every month. Don’t see them [Gardner
25a
Appendix A
and Colucci] anymore.” Thus, the record shows that
Clemente assisted both parties to the transaction.
At trial Judge Sand charged the jury that “the govern-
ment contends that the defendants Clemente, Fiumara
and Copolla aided and abetted the defendant Buzzanca, a
labor official, to request, demand o. receive payments
from Mr. Montella.” While the proof adduced at trial
might have made a stronger case against Clemente for
aiding and abetting Montella’s making the payoffs as
opposed to Buzzanca’s receiving ihem, we are satisfied
that the evidence is sufficient to sustain Clemente’s con-
viction for the latter. The government correctly observes
that there is no authority for the “proposition that a
defendant who aids and abets both parties to an illegal
transaction cannot be convicted for aiding and abetting
both.” All of the authorities cited by Clemente are simply
inapposite.
Il.
The RICO Counts
Defendants Clemente, Fiumara, Buzzanca, Colucci,
and Gardner, were convicted of violating the Rack-
eteer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1962(c) (1976), and conspiring to
violate that statute, 18 U.S.C. § 1962(d) (1976). De-
fendant Coppola was convicted of conspiring to v'
late RICO. All of the defendants claim that the
terprise charged in the indictment, a “group of indi-
viduals associated in fact” having no legitimate pur-
pose, is Outside the scope of the term “enterprise” as
it is employed in RICO. See 18 U.S.C. § 1961(4)
(1976). Additionally, the defendants claim that the
RICO conspiracy count against each of them is un-
constitutionally vague. We reject both of these conten-
26a
Appendix A
tions. In United States v. Altese, §42 F.2d 104, 106
(2d Cir. 1976), cert. denied, 429 U.S. 1039 (1977), we
held that the term “enterprise” embraces both legiti-
mate and illegitimate enterprises. This Court recently
adhered to the position taken in Altese in United
States v. Errico, slip op. 423, 430 (2d Cir. Dec. 1,
1980), and United States v. Mannino, slip op. 333,
348 (2d Cir. Nov. 18, 1980). Since our decisions in
Errico and Mannino, in which we noted the split of
authority on this issue, the Sixth Circuit reached a re-
sult in line with Altese in an in banc decision in
United States v. Sutton, Nos. 78-5134-39, 78-5141-43
(6th Cir. Dec. 3, 1980), rev’g United States v. Sutton,
605 F.2d 260 (6th Cir. 1979). Only the First and
Eighth Circuits have adopted a contrary view. See
United States v. Turkette, 632 F.2d 896 (Ist Cir.
1980), cert. granted, 49 U.S.L.W. 3525 (U.S. Jan. 27,
1981); United States v. Anderson, 626 F.2d 1358 (8th
Cir. 1980). Although we decline this opportunity to
review our position taken in Altese, we note in pass-
ing that the purpose of the “enterprise” here was the
establishment of a pattern of racketeering activity in a
legitimate business, the waterfront industry.’
Defendants claim that since the enterprise charged in
the indictment, an association in fact, was itself a con-
Spiracy, a charge that the defendants conspired to create
the enterprise is unintelligible. We agree with the Fifth
7 In a case strikingly similar to the one at bar that also involved
waterfront corruption, the Third Circuit cogently stated:
The purpose of RICO—prevention of infiltration of legitimate
business by racketeers—would in any event be vindicated by the
convictions here, since the wholly illegitimate Provenzano associa-
tion subverted legitimate unions and businesses. . . . We decline in
this case to construe the RICO statute so as to allow the appellants
a defense that they made sure mor to engage in any legal activity.
United States v. Provenzano, 620 F.2d 985, 993 (3d Cir. 1980) (empha-
sis in original).
27a
Appendix A
Circuit which squarely confronted and rejected this con-
tention in United States v. Diecidue, 603 F.2d 535 (Sth
Cir. 1979), cert. denied, 445 U.S. 946 (1980):
We conclude that Count One of the indictment
properly charged a conspiracy to conduct the affairs
of a § 1961(4) enterprise through racketeering activi-
ties, the nature of which was precisely stated, and
adequately informed defendants that the enterprise
whose affairs they conspired to conduct was one
which they, by their association, had formed. See
United States v. Hawes, 529 F.2d 472, 479 (Sth Cir.
1976). That the formation of the enterprise and the
conception of the conspiracy may have occurred
simultaneously in no way detracts from the Act’s
applicability.
603 F.2d at 545-46.
Finally, the defendants claim that the district court’s
charge to the jury concerning the RICO conspiracy
counts was improper. The defendants, however, failed to
object to this portion of the court’s charge and thus
waived any objection they may have had in this regard.
Fed. R. Crim. P. 30. See, e.g., Henderson v. Kibbe, 431
U.S. 145, 154 (1977); United States v. Vila, 599 F.2d 21,
25 (2d Cir.), cert. denied, 444 U.S. 837 (1979) (alternate
holding); 8A J. Moore Federal Practice 4 30.04 (2d ed.
1980).
IV.
Defendant Gardner’s Cross-Examination
Defendant Gardner claims that he was unfairly cross-
examined and that his previous Taft-Hartley conviction
was improperly admitted at trial.
28a
Appendix A
Gardner testified on direct examination that he had
never received any payoff mone, from Montella; that
hundreds of thousands of dollars of loans accounted for
his possession of large sums of money in the indictment
years; that he received no loans as a result of his ILA
position; and that his prosecution was iacially motivated.
On cross-examination the government sought to establish
that Gardner deliberately burned his personal and busi-
ness financial records shortly after receiving a subpoena
for their production, and that some of his loans were
received as a result of his ILA position. Gardner was
questioned about having filed false loan applications, and
three of these applications were admitted into evidence.
Additionally, after questioning Gardner about checks he
had purportedly received from waterfront employers for
charitable affairs, the government established that the
“charities” were frauds and that Gardner had kept the
monies for himself. Finally, after Gardner denied that he
had received any loans by reason of his union position,
the government was permitted to prove that Gardner was
convicted for receiving such a loan from a waterfront
businessman in 1979.
The defendant contends that Judge Sand failed to
consider the prejudicial effect of the impeachment evi-
dence used against him pursuant to Rule 403 of the
Federal Rules of Evidence.* We are satisfied, however,
that Judge Sand did not abuse the broad discretion
afforded to him under Rule 403. See generally United
8 Fed. R. Evid. 403 provides:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumula-
tive evidence.
29a
Appendix A
States v. Benedetto, 571 F.2d 1246, 1251 (2d Cir. 1978);
United States v. King, 560 F.2d '22, 128 (2d Cir.), cert.
denied, 434 U.S. 925 (1977). The government’s impeach-
ment of Gardner fell into three general categories: (1)
inquiries into conduct of the defendant that bore on his
character for truthfulness, (2) extrinsic evidence of spe-
cific acts, and (3) evidence of a prior conviction. The first
two categories fall within Rule 608(b)’ of the Federal
Rules of Evidence, the third within Rule 609(a).'°
We conclude that the court did not abuse its discretion
in allowing the government to inquire into the destruction
of Gardner’s personal and business records. See United
States v. Graham, 102 F.2d 436, 442 (2d Cir.)., cert.
denied, 307 U.S. 643 (1939). The evidence was indisput-
9 Fed. R. Evid. 608(b) provides:
(b) Specific instances of conduct. Specific instances of the con-
duct of a witness, for the purpose of attacking or supporting his
credibility, other than conviction of crime as provided in rule 609,
may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or untruthful-
ness, be inquired into on cross-examination of the witness (1)
concerning his character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being cross-ex-
amined has testified.
The giving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of his privilege against
self-incrimination when examined with respect to matters which
relate only to credibility.
10 Fed. R. Evid. 609(a) provides:
(a) General rule. For the purpose of attacking the credibility uo. a
witness, evidence that he has been convicted of a crime shall be
admitted if elicited from him or established by public record during
cross-examination but only if the crime (1) was punishable by death
or irgprisonment in excess of one year under the law under which he
was convicted, and the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the
defendant, or (2) involved dishonesty or false statement, regardless
of the punishment.
3a
Appendix A
ably relevant to and probative of Gardner’s untruthful-
ness. Likewise, the government’s inquiry into Gardner’s
loan transactions was entirely proper. Gardner had in-
jected the subject into the case in his direct testimony, and
the government was entitled to pursu: the subject on
cross-examination. United States v. Hockridge, 573 F.2d
752, 761 (2d Cir.), cert. denied, 439.U.S. 821 (1978);
United States v. Benedetto, supra, 571 F.2d at 1250-51.
Similarly, the government’s inquiries on cross-examina-
tion into Gardner’s acceptance of checks from Montella
and others for the purported charitable affairs were
permissible to refute Gardner’s direct testimony that he
had never taken money for illicit reasons from Montella.
We are thus satisfied that the government’s inquiries on
cross-examination were permissible under Rule 608(b).
The admission of the fraudulent loan applications,
however, is another matter. Rule 608(b) explicitly provides
that “[s]pecific instances of the conduct of a witness, for
the purpose of attacking his credibility. . . may not be
proved by extrinsic evidence.” Even assuming, however,
that the loan applications were improperly admitted to
prove facts collateral to the charges in the indictment, in
view of the substantial evidence introduced against
Gardner,'' we are convinced that any error in their admis-
sion was harmless.
Gardner’s complaint that his prior conviction should
not have deen admitted under Rule 609(a) simply does not
withstand analysis. The evidence of his conviction was
not admitted until Gardner denied the facts underlying
" Three different employees testified that they personally paid
Gardner $200,000 in illegal cash payolts. anu the testimons of three
other eyewitnesses corroborated these payotts. And tinalls, a tape
recording in which Gardner admitted receiving the illegal vash pay-
ments was introduced.
3la
Appendix A
the conviction. Moreover, Gardner actually requested that
it be admitted. The record reveals that Judge Sand bent
over backwards to guard defendant Gardner from being
unduly prejudiced. Following Gardner’s first denial of
the facts underlying his previous conviction, Judge Sand
gave him another “chance” to testify truthfully before
permitting the government to impeach him with evidence
of the conviction.
We have carefully considered all of the defendants’
other contentions and find them to be without merit.
Accordingly, the judgments of conviction are affirmed.
Defendant (Total
Prison Term; Total
Fine; Total Counts)
MICHAEL CLEMENTE
(20 years;
$50,000; 103 cts.)
TINO FIUMARA
(25 years;
$10,000; 74 cts.)
Counts
'
2
49-83
87-142
200, 202,
204, 206
208
201, 203,
205, 207,
209
APPENDIX
Charge
RICO
RICO Consp.
Labor payments
Extortion
Tax Evasion
Filing False
Tax Returns
RICO
RICO Consp.
Extortion
Labor pay-
ments
Term of
Imprisonment
20 years
20 years
6 mo. each
other; conc. to
Cts. 1 & 2)
20 years each
4 years cach
(consec. to each
other; conc. to
all others)
3 years cach
(consec. to each
other; conc. to
all others)
20 years
5 years
20 years each
6 mo. cach
(consec. to each
other; conc. to
Ct. 1)
Fine
$25,000
$ 5,000
each
$10,000
¥ xipuaddy
eze
THOMAS BUZZANCA
(10 years;
$5,000; 73 cts.)
VINCENT COLUCCI
(5% years;
$5,000; 12 cts.)
210, 211
1
2
14-48
49-83, 84
212
Filing False
Tax Returns
RICO
RICO Consp.
Extortion
Labor pay-
ments
RICO
RICO Consp.
Extortion
Labor Pay-
ments
Filing False
Tax Returns
2% years each $ 5,000
(consec. to cach
other; conc.
with Ct. 2)
10 years $ 5,000
10 years
10 years cach
3 mo. each
(consec. to cach
other; conc. to
others)
WY xipuaddy
5% years $ 5,000
5% years
5¥2 years each
1 year each
(consec. to each
other; conc. to all
others)
3 years
eee
Defendant (Total
Prison Term; Total
Fine; Total Counts)
CAROL GARDNER
(10 years;
($5,000; 13 cts.)
MICHAEL COPOLLA
(13 years; 1 ct.)
GERALD SWANTON
(5 years; $5,000;
60 cts.)
Counts
l
2
3-6, 13
8-11, 85
213
Charge
RICO
RICO Consp.
Extortion
Labor pay-
ments
Filing False
Tax Returns
RICO Consp.
Extortion
Extortion
False State-
ments
Term of
Imprisonment Fine
$ 5,000
10 years
10 years
10 years each
1 year
(consec. to
each other; conc.
to all others)
3 years
13 years
5 years $ 5,000
5 years each
5 years each
(conc. to each
other)
PY Xipuaddy
35a
APPENDIX B — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the twenty-sixth day of February one
thousand nine hundred and eighty-one.
Present:
HON. WILFRED FEINBERG, Chief Judge
HON. HENRY J. FRIENDLY
HON. THOMAS J. MESKILL,
Circuit Judges,
UNITED STATES OF AMERICA,
- Plaintiff-Appellee,
v.
MICHAEL CLEMENTE, THOMAS BUZZANCA, TINO
FUIMARA, MICHAEL COPOLLA, CAROL GARDNER,
GERALD SWANTON, VINCENT COLUCCI, MANUEL
CASTELO, JR., JOSEPH CASTELO, CASTELO & SONS
SHIP SERVICING INC., GEORGE ZAPPOLA, ROBERT
MELLI,
Defendants,
36a
Appendix B
MICHAEL CLEMENTS, THOMAS BUZZANCA, TINO
FUIMARA, MICHAEL COPOLLA, CAROL GARDNER,
GERALD SWANTON, VINCENT COLUCCI,
Defendants-Appellants.
No. 80-1261
Appeal from the United States District Court for the
Southern District of New York
This cause came on to be heard on the transcript of record
from the United States District Court for the Southern District
of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the judgments of said
District Court be and they hereby are affirmed in accordance
with the opinion © this court.
A. DANIEL FUSARA,
Clerk
by Edward J. Guardaro,
Deputy Clerk
37a
APPENDIX C — RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
Due Process Clause of the Fifth Amendment:
“No person shall be . . . deprived of life, liberty,
or property, without due process of law.”
18 U.S.C. §1961(4):
“‘enterprise’ includes any individual, partnership,
corporation, association, or other legal entity,
and any union or group of individuals associated
in fact although not a legal entity[.J”
18 U.S.C. §1962(c):
“...any person employed by or associated with
any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a
pattern of racketeering activity or collection of
unlawful debt.”
18 U.S.C. §1962(a):
“(a) It shall be unlawful for any person who has
received any income derived, directly or
indirectly, from a pattern of racketeering activity
or through collection of an unlawful debt in
which such person has participated as a principal
within the meaning of section 2, title 18, United
States Code, to use or invest, directly or
indirectly, any part of such income, or the
proceeds of such income, in acquisition of any
interest in, or the establishment or operation of,
any enterprise which is engaged in, or the
activities of which affect, interstate or foreign
commerce. A purchase of securities on the open
38a
Appendix C
market for purposes of investment, and without
the intention of controlling or participating in the
control of the issuer, or of assisting another to do
so, shall not be unlawful under this subsection if
the securities of the issuer held by the purchaser,
the members of his immediate family, and his or
their accomplices in any pattern or racketeering
activity of the collection of an unlawful debt after
such purchase do not amount in the aggregate to
one percent of the outstanding securities or any
one class, and do not confer, either in law or in
fact, the power to elect one or more directors of
the issuer.”
18 U.S.C. §1962(b):
“(b) It shall be unalwiul for any person through a
pattern of racketeering activity or through
collection of an unlawful debt to acquire or
maintain, directly or indirectly, any interest in or
control of any enterprise which is engaged in, or
the activities of which affect, interstate or foreign
commerce.”
18 U.S.C. §1962(d):
“The final substantive RICO crime makes it
‘unlawful for any person to conspire to violate
any of the provisions of subsections (a), (b) or (c)
of this section.’ ”
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.