Opposition — MICHAEL CLEMENTE v. UNITED STATES (Nos. 80-1972, 80-1800, 80-2098)

Offics-Suprem? wor

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| JUL10 1981

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Nos. 80-1972 and 80-2098

Iu the Supreme Court of the United States

OcTOBER TERM, 1980

MICHAEL CLEMENTE, PETITIONER

Vv.

UNITED STATES OF AMERICA

VINCENT COLUCCI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

LAWRENCE G. WALLACE

Acting Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

JoeEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the group of individuals associated in this

case to commit unlawful acts for profit constituted an

“enterprise” within the meaning of the Racketeer Influ-

enced and Corrupt Organizations Act (RICO), 18 U.S.C.

1961 et seq. (both petitioners).

2. Whether the application of the RICO statute to

groups of individuals associated for illegal purposes, rend-

ers the statute unconstitutionally vague (petitioner

Clemente).

3. Whether the district court instructed the jury incor-

rectly onthe RICO conspiracy count (petitioner Clemente).

4. Whether an invalidation of the RICO counts would

require reversal of petitioner Clemente’s non-RICO

convictions.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Cupp v. Naughten, 414 U.S. 141 ..... yin gek

Dunn v. United States, 442 U.S. 100 .........

Henderson vy. Kibbe, 431 U.S. 145 ...........

Huddleston v. United States, 445 U.S. _

PPCUNRREMRGGS ROSSER ceccecccccdecccsoeces

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

cert. denied, 445 U.S. 946 ......cceeeecvves

United States v. Campanale, 518 F. 2d 353,

cert. denied, 423 U.S. 1050 ........eeeeees

United States v. Diecidue, 603 F. 2d 535,

IES O08, DOO coccceccceccccece

United States v. Hawes, 529 F. 2d 472 .......

United States v. Huber, 603 F. 2d 387,

EE yr

United States v. Parness, 503 F. 2d 430,

cort. Genied, 419 U.S. 1108 ...cccccccccccees

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

cert. denied, 441 U.S. 933 ... cc cccceeeeeees

United States v. Turkette, No. 80-808

EEE

IV

Page

Statutes and rules:

Hobbs Act, 18 U.S.C. 1951 cc ccc eee cree renee 2

Labor-Management Relations Act,

Section 302(b), 29 U.S.C. 186(b) .......eeeeee 2

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. (& Supp. III) 1961 et seq. :

IBU.S.C. 196) wcccccvccvcccccvccccccccecs 5

18 U.S.C. (& Supp. IIT) 1961(1) «6.6... eee 6

18 U.S.C. 196104)... cccccccccccccccccvcece 6

18'U.S.C. 19626) .ncccccccccccccccccceces 2

18 U.S.C, 1962(d) ..cccscccccccccscccccces 2

BG U.S.C. TIDE wccccccccccccvccccscccsccccecs 2

26 U.S.C. 7206(1) ...ccceveccccccvecesveceenes 2

Fed. R. Crim. P. :

BRUD BD cc nccccdcccccccccccccconccccceces 8

Inu the Supreme Court of the Hnited States

OcTOBER TERM, 1980

No. 80-1972

MICHAEL CLEMENTE, PETITIONER

Vv.

UNITED STATES OF AMERICA

No, 80-2098

VINCENT COLUCCI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-31a)! is

not yet reported.

JURISDICTION

The judgment of the court of appeals was entered on

February 26, 1981. A petition for rehearing was denied on

April 14, 1981. The petition for a writ of certiorari in No.

Pet, App.” refers to the appendix to the petition in No, 80-2098,

l

2

80-1972 was filed on May 22, 1981, and the petition in No.

80-2098 was filed on June 11, 1981. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the Southern District of New York, petitioner Clemente

was convicted on one count of participating in an enterprise

through a pattern of racketeering activity, in violation of

the RICO statute, 18 U.S.C. 1962(c) (Count 1); one count of

conspiring to commit that offense, in violation of 18 U.S.C.

1962(d) (Count 2); 35 counts of bribery, in violation of

Section 302(b) of the Labor-Management Relations Act

(“Taft-Hartley Act”), 29 U.S.C. 186(b) (Counts 49-83); 56

counts of extortion, in violation of the Hobbs Act, 18

U.S.C. 1951 (Counts 87-142); five counts of tax evasion, in

violation of 26 U.S.C. 7201 (Counts 200, 202, 204, 206, 208);

and five counts of filing false tax returns, in violation of 26

U.S.C. 7206(1) (Counts 201, 203, 205, 207, 209). Petitioner

Colucci was convicted on both RICO counts, 13 counts of

extortion (Counts 3-6, 13), four counts of bribery (Counts

8-11), and one count of filing a false tax return (Count 212).

Petitioner Clemente was sentenced to concurrent 20-year

terms of imprisonment on Counts | and 2; six months’

imprisonment on each of Counts 49 through 83, to be

served consecutively to each other but concurrently with the

sentences on Counts | and 2; 20 years’ imprisonment on

each of Counts 87 through 142, to be served concurrently

with each other and with the sentences on all other counts;

four years’ imprisonment on each of Counts 200, 202, 204,

206 and 208, to be served consecutively to each other but

concurrently with the sentences on all other counts; three

years’ imprisonment on each of Counts 201, 203, 205, 207

and 209, to be served consecutively to each other but con-

currently with the sentences on all other counts; and a total

fine of $50,000.

3

Petitioner Colucci was sentenced to concurrent five and

one-half year terms of imprisonment on Counts I, 2, 3-6,

and 13; one year’s imprisonment on each of Counts 8

through 11, to be served consecutively to each other but

concurrently with the sentences on all other counts; three

years’ imprisonment on Count 212, to be served concur-

rently with the sentences on all other counts; and a total fine

of $5,000. The court of appeals affirmed (Pet. App. la-3 la).

The evidence at trial is related in detail in the opinion of

the court of appeals (Pet. App. 3a-12a). Briefly, it estab-

lished the existence of an association of persons organized

for the purpose of controlling all aspects of the New York

and New Jersey waterfront business. Petitioner Clemente

was the ringleader of the enterprise and petitioner Colucci

was president of a New Jersey local of the International

Longshoremen’s Association (ILA), Other members of the

enterprise, who were co-defendants, at petitioners’ trial,

included Tino Fiumara, the New Jersey waterfront “boss”;

Carol Gardner, the president of another New Jersey local of

the ILA; Thomas Buzzanca, the president of two New York

ILA locals; and Gerald Swanton, a vice-president of a

shipping company in New York (id. at 3a).?

The foundation of the enterprise was its control of the

ILA in New York and New Jersey. By threatening work

stoppages, the enterprise was able to extort money from

shipping companies and to influence their decisions regard-

ing the allocation of ship-servicing contracts. Using its con-

trol over such contracts, the enterprise was likewise able to

extort money from the ship-servicing companies. Only

those shipping and ship-servicing companies that paid the

2The joint petition for a writ of certiorari of co-defendants Fiumara,

Buzzanca, and Michael Copolla, Fiumara’s assistant, is currently pend-

ing inthis Court, Fiumara v,. United States, No, 80-1800 (filed Apr. 27,

1981).

4

amounts demanded and otherwise cooperated with the

enterprise had their ships’ cargos loaded and unloaded

without interruption or obtained and retained contracts to

provide services (Pet. App. 3a-4a).

The proof against petitioners and their co-defendants

largely concerned their individual dealings with William

Montella, the principal government witness, who was

employed by several ship-servicing companies during the

period covered by the indictment (Pet. App. 4a-12a). Mon-

tella testified that from 1970 to 1972 he had made payoffs to

Swanton in order to retain certain ship-servicing contracts

with Netumar Steamship Line for Montella’s employer and

that Swanton had told him that he was associated with

petitioner Clemente, who would share in the payoffs (id. at

5a). From 1974 to 1976, according to Montella’s testimony,

Montella delivered $500 per month in cash to Clemente to

retain contracts for a new Montella employer (id. at 6a-7a).

In 1976, when Montella’s bid on behalf of his employer for

additional contract work had been rejected, he appealed to

Clemente, who advised him how to obtain the work and

who demanded an additional $500 per month in payments.

From January 1977 through December 1978, Montella tes-

tified, he made $1000 monthly payments to Clemente (id. at

7a). During the same period that Clemente received pay-

ments from Montella, he was collecting approximately $1

million from Netumar itself in return for his arranging to

achieve reductions in some gross overcharges by a stevedor-

ing company with which Netumar did business (id. at 7a).

As to petitioner Colucci, Montella testified that in 1975

he had agreed to pay a lump sum of $10,000 and monthly

payments of $2,000 to co-defendant Carol Gardner and to

petitioner Colucci in order to allow a company owned by

some friends of Montella’s to retain contracts with the

Concordia Line for work on the New Jersey waterfront

(Pet. App. 8a). When Montella thereafter began receiving

separate demands from Gardner and Colucci, Montella

5

complained to petitioner Clemente, who advised him that

he should have approached Clemente initially to avoid

having to deal with Gardner and Colucci (Pet. App. 9a).

Montella testified further that Clemente told him he should

live up to his “commitment,” but at Clemente’s suggestion

he consulted another of the co-defendants, Thomas Buz-

zanca, who arranged for Montella to make the Concordia

Line payments directly to him and who told Montella to

advise Colucci and Gardner to await further instructions

from Buzzanca (ibid.). After transmitting this message,

Montella was no longer approached by Gardner and

Colucci for Concordia Line payments. During this same

period, however, Montella had abandoned efforts to retain

a Chilean Line account because of pressure from Colucci and

Gardner for payments, which they demanded in the name of

their “boss,” who, according to Montella, was Tino Fium-

ara, another of petitioners’ co-defendants (id. at 10a-1 la).

ARGUMENT

1. Petitioners contend (Clemente Pet. 4-6; Colucci Pet.

6-9) that the conduct for which they were indicted and

convicted does not fall within the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq.

They argue that the RICO counts in this case were based on

an “enterprise” consisting of an association organized for

exclusively illegal ends, and that the RICO statute is appli-

cable only to legitimate enterprises that are subsequently

infiltrated by criminal elements. After the filing of the

instant petitions, however, this Court expressly held in

United States v. Turkette, No. 80-808 (June 17, 1981), that

the RICO statute applies to wholly illegitimate as well as to

legitimate enterprises. Accordingly, petitioners’ claim must

fail.

2. Petitioner Clemente contends (Pet. 6-8) that the

RICO statute, as employed in this case, is unconstitution-

ally vague. Specifically, he argues (Pet. 6) that applying the

6

RICO statute to an “association in fact formed for the very

purpose” of committing illegal acts “renders the enterprise

element indistinguishable from a single conspiracy to com-

mit the predicate crimes” and that this “in turn makes it

impossible to fathom the meaning of a conspiracy under 18

U.S.C, 1962(d) * * *.”

Petitioner’s argument misapprehends the meaning of the

“enterprise” element of a RICO offense. Under 18 U.S.C.

1961(4), an “enterprise” is an “entity,” including, as in this

case, a “group of individuals associated in fact.” See United

States v. Turkette, supra, slip op. 6. As such, it is not the

same thing as a conspiracy, which is an agreement to com-

mit particular unlawful acts. As the Fifth Circuit observed

in United States v. Diecidue, 603 F. 2d 535, 546 (Sth Cir.

1979), cert. denied, 445 U.S. 946 (1980), the mere fact

“[t]hat the formation of the enterprise and the conception of

the conspiracy [to commit unlawful acts in furtherance of

the enterprise] may have occurred simultaneously in no way

detracts from the Act’s applicability.” Indeed, every court

of appeals to have addressed the vagueness claim has

rejected it. See United States v. Aleman, 609 F. 2d 298, 305

(7th Cir. 1979), cert. denied, 445 U.S. 946 (1980); United

States v. Swiderski, 593 F. 2d 1246, 1249 (D.C. Cir. 1978),

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

529 F. 2d 472, 479 (Sth Cir. 1976); United States v. Cam-

panale, 518 F. 2d 352, 363-364 (9th Cir. 1975), cert. denied,

423 U.S. 1050 (1976); United States v. Parness, 503 F. 2d

430, 440-442 (2d Cir. 1974), cert. denied, 419 U.S. 1105

(1975). See also United States v. Huber, 603 F. 2d 387, 393

(2d Cir. 1979), cert. denied, 445 U.S. 927 (1980).

Furthermore, since petitioner Clemente’s act of conspir-

ing to commit the predicate acts of racketeering was itself

clearly illegal (see 18 U.S.C. (& Supp. III) 1961(1)), he

unquestionably had “fair warning * * * as to what conduct

is criminal * * *” (Huddleston v. United States, 415 U.S.

7

814, 831 (1974)) and was not “forced to speculate * * *

whether his conduct [was] prohibited.” Dunn v. United

States, 442 U.S. 100, 112 (1979).

3. Ininstructing the jury onthe RICO conspiracy count,

the district court stated (Tr. 12614-12615) that “{iJn order to

find the defendant * * * guilty of the conspiracy charged in

the indictment, you must find beyond a reasonable doubt

that at least two connected violations of one or both of the

two statutes that I have just described to you in connection

with Counts 3 through 142 [the Hobbs Act and “Taft-

Hartley Act” counts], were objectives of the conspiracy.”

Petitioner Clemente contends (Pet. 8-10) that the instruc-

tion was incorrect because, under 18 U.S.C. 1962(d), a

defendant must be found to have “entered into an agree-

ment with the personal objective (i.e., specific intent) of

participating in the enterprise’s affairs through the commis-

sion of two or more predicate crimes constituting a pattern

of racketeering activity” (Pet. 10; emphasis petitioner’s).

Petitioner, however, failed to object to this portion of the

court’s charge (see Pet. App. 25a) and thereby waived his

right to challenge it now. Fed. R. Crim. P. 30; see, e.g.,

Henderson v. Kibbe, 431 U.S. 145, 154(1977). Moreover, a

reversal of petitioner Clemente’s conviction on the conspi-

racy count—for which he received a sentence of 20 years—

could not affect the length of his imprisonment or have

other significant collateral consequences, because he

received concurrent 20-year sentences on the RICO counts

and on each of the 56 extortion (Hobbs Act) counts (Pet.

App. 30a).

At all events, his claim is not persuasive. While it is true

that a defendant must have agreed personally to commit or

to aid and abet the commission of at least two predicate acts

of racketeering in order to be convicted of a RICO conspir-

acy, the above-quoted instruction can fairly be read to

state that requirement. This is especially true when the

8

instruction is viewed in the context of the court’s complete

charge to the jury. See Cupp v. Naughten, 414 U.S. 141,

146-147 (1973). Thus, at the outset of the court’s RICO

conspiracy instruction (Tr. 12607), the jury was informed

that “Count 2 of the indictment charges that six of the

defendants [including petitioner] * * * and others known

and unknown, conspired to violate federal law by partici-

pating in the conduct of the affairs of the enterprise des-

cribed in Count I through a pattern of racketeering activ-

ity” (emphasis added). See also Tr. 12608 and 12614. In its

instructions on Count 1, the court made it clear that a

“pattern of racketeering activity” consists of “at least two of

the acts of racketeering activity alleged in the indictment”

(Tr. 12597). Read together, these instructions correctly and

clearly advised the jury that, in order to convict petitioner, it

must find that he agreed to participate in the enterprise

through the commission of at least two racketeering acts.’

4. Petitioner Clemente contends (Pet. 11-14) that if the

RICO counts were invalid, his non-RICO convictions also

must be reversed because of misjoinder under Fed. R. Crim.

P. 8 and because of evidentiary spillover from the RICO

counts. Since the Court’s decision in Turkette removes the

predicate for this contention, it plainly affords no basis for

further review.

3In any event, petitioner could not have been prejudiced by the

instruction even if it was defective. It is implicit in petitioner's joint

conviction with one or more of his co-defendants on 91 Hobbs Act and

“Taft-Hartley” counts that the jury believed that he had conspired

“personally” to commit two or more racketeering acts.

9

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

LAWRENCE G, WALLACE

Acting Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

Joe, M. GERSHOWITZ

Attorney

JuLy 1981

DOJ-1981-07