Petition — Calandra v. United States
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Office - Supreme Court, U.S,
FILED
MAR 23 1984
ALEXANDER L. STEVAS.
Se
In the Supreme Court of the United States
October Term, 1983
JOHN P. CALANDRA,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
Burt Futton, Counsel of Record
Sixth Floor, Bulkley Building
Cleveland, Ohio 44115
(216) 241-5310
JoHN P. CALANDRA, JR.
800 Standard Building
Cleveland, Ohio 44114
(216) 861-3000
Attorneys for Petitioner
THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647
é.
IT.
Il.
QUESTIONS PRESENTED
Is there a denial of due process, when, after a state
court trial, orchestrated by the federal government,
the jury finds that petitioner did not commit murder,
aid or abet in that murder nor conspire to commit
that murver, Petitioner next is tried in Federal Court
and charged with the same two state predicate [not
federal] acts of murder and conspiracy to murder in
order to meet the pattern of racketeering activity
required under RICO.
When the Ohio substantive law provides that murder
and conspiracy to murder the same individual merge
into one crime for purposes of conviction and sen-
tencing, is there a denial of due process when Pe-
titioner is charged under RICO with violating the
Ohio statute covering murder and conspiracy to mur-
der in order to meet the RICO requirement of two
separate predicate acts necessary to establish a pattern
of racketeering activity.
Since 18 U.S.C. §1962(d) requires proof that defen-
dant conspire or agree to commit two separate
predicate acts in order to establish a pattern of rac-
keteering activity, is there a denial of due process
when RICO is given a broad interpretation which
permits the two separate predicate acts to be (1)
the conspiracy to murder an individual, and (2) the
conspiracy to conspire to murder that same individual.
PARTIES BELOW
The caption of this case not containing the names of
all parties whose convictions are sought to be reviewed,
the following co-defendants’ names are disclosed:
(1) James T. Licavoli
(2) Anthony Liberatore
(3) Pasquale Cisternino
(4) Ronald Carabbia
(5) Kenneth Ciarcia
III
TABLE OF CONTENTS
Cette POND fausiseicdinnccntaseanancunenan
he ETERS REO ROL OAa see teee Bt CO Ay
TERI III dissciccicanicasiecccrninncicajnibememdaieddatametamadaan
I TE ssa cisscsneecntsasssnccarionsseiannndamaiclaniloussansaananenss
ey I avkanscbadiiceicsacssevicsiniicvinenitetvenimes
Constitutional and Statutory Provisions. ......................
es Or ne ae
Reasons for Granting Writ of Certiorari ........................
I,
II.
The United States Supreme Court has yet to
address the due process issues under RICO,
namely: To obtain a conviction, can RICO
incorporate as two separate predicate acts the
state crimes of murder and conspiracy to mur-
der when defendant previously was acquitted
in state court of these crimes and more partic-
ularly when these two state crimes under state
substantive law merge into one crime for pur-
poses of state conviction and sentencing ........
A. The predicate crimes of murder and con-
spiracy to murder merge into one predi-
cate crime by reason of Ohio substantive
law as well as the language and history of
a Te I a vecececsereretteeicettnencn
Since 18 U.S.C. §1962(d) requires that defen-
dant conspire or agree to commit two separate
acts in order to establish a pattern of racke-
teering activity, can these two state acts be
established by: (a) conspiracy to murder an
individual, and (b) conspiracy or agreement
to conspire to murder that same individual ....
10
15
IV
Appendix:
Opinion of the Court of Appeals for the Sixth
Circult (Tamuary 9, 1006) .........ccccccscccccsssescscsscsscses: Al
Ruling of the United States District Court on Post
Verdict Motion for Acquittal (July 30, 1982) ...... A27
Ruling of the United States District Court on Mo-
tion for Judgment for Acquittal (June 3, 1982) .. A38
Ruling of the United States District Court on Mo-
tion to Include State Court Acquittal in Federal
es erm RUE nEee A58
Certified Judgment of Acquittal of the Court
of Common Pleas (October 25, 1978) ...... A59
Ruling of the United States District Court on Mo-
tion to Dismiss on Ground of Prior State Court
Acquittal (October 10, 1979) ou... eee A60
Order of the United States Court of Appeals for
the Sixth Circuit Denying Petition for Rehear-
RE CN BG IID pitesicpensetecenscencteSiescicenesesate A80
Order of the United States Court of Appeals Stay-
ing Mandate (February 29, 1984)... .. A81
United States Constitution, Amendment V ................ A82
Sy TIS TIEN cncqunaeentsspisisnsancsncosseucusendsnbusasictiasctdadapaanian A82
Be es Fe I kalieneticcsnh pice ensechdcccemmiraciabidgeeiceniementecidl A85
Ohio Revised Code § 2903.01.20... san bln Pis 7c A87
Ohio Revised Code § 2903.02 2... .eececeseceseseseseees A87
Ohio Revised Code § 2923.01 ooo... cccecccsessssscseeees A87
Ohio Revised Code § 2923.03 ..0o..........eccccccceceeseeeeeees A90
TABLE OF AUTHORITIES
Cases
Abbate v. United States, 359 U.S. 187 (1959) ................ 8,9
Ashe v. Sevenson, 397 U.S. 436 (1970) ..............:..ccesceeees 6
Browder v. United States, 312 U.S. 335 (1940) ............ 14
Russello v. United States, 104 S. Ct. 296 (1983) ............ 8
Smith v. United States, 423 U.S. 1303 (1975) ............ z)
State v. Doty, 94 Ohio St. 258 (1916) 0.0... eee 12
State v. Lucas, 85 N.E.2d 154 (1949) «20.00.00... eeeeeseeee 11
United States v. Barton, 647 F.2d 224 (1981) ................ 16
United States v. Bledsoe, 674 F.2d 647 (1982) ............ 18
United States v. C.I1.T. Corp., 344 U.S. 218 (1952) ....13-14
United States v, Elliott, 571 F.2d 880 (1978) ................ 17
United States v. Frumento, 563 F.2d 1083 (1977) ........ 9
United States v. Johnson, 516 F.2d 209 (1975) ............ 9
United States v. Phillips, 664 F.2d 971 (1981) ...... 12, 13,14
United States v. Ruggiero, et al., [Nos. 1158, 1362, 1168
Ge ee | ee 16,17
United States v. Starnes, 644 F.2d 673 (1981) ................ 16
United States v. Winter, 663 F.2d 1120 (1981) ............ 10, 15
Yates v. United States, 354 U.S. 298 (1957) .................... 14
Constitution and Statutes
5th Amendment, United States Constitution .................... 2
8 As: eee 2, 3, 4,5, 15, 18
a, cee 2, 3, 4, 15, 16, 17
Ohio Rev. Code:
§2903.01 (Aggravated Murder) .....0..0..0..00.00cccccecceee 2, 4, 10
a cccccsuinsasstissacnaibassbsosdacoss 2
$2923.01 (Conspiracy, Attempt, Complicity) ...... 2, 4, 11,
12,14
§2923.03 (Complicity) ....................cc0ccc...sc0e0s 2,5, 10, 11, 12
Texts
9 A.L.R.2d 228 Res Judicata - Criminal Cases §6 ............ 6
Sr IE MOY MI, Boos... cca veavenccesesconcecsscsdscnacaccccesce 7
No.
In the Supreme Court of the United States
October Term, 1983
JOHN P. CALANDRA,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
The petitioner, John P. Calandra, respectfully requests
that a Writ of Certiorari issue to review the judgment
and opinion of the Court of Appeals for the Sixth Circuit
entered on January 9, 1984.
OPINIONS BELOW
The opinion of the Court of Appeals for the Sixth
Circuit is in the Appendix. The opinions of the District
Court relating to the issues presented for review are in
the Appendix.
JURISDICTIONAL STATEMENT
The Court of Appeals for the Sixth Circuit affirmed
Petitioner's RICO conviction for a violation of 18 U.S.C
£1962(d) on January 9, 1984 and then denied Petitioner’s
timely-filed Petition for Rehearing on February 17, 1984.
Jurisdiction is sought pursuant to 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS
The relevant constitutional and statutory provisions
are set forth in the Appendix.
5th Amendment, United States Constitution
18 U.S.C. 1961 (RICO)
18 U.S.C. 1962 (RICO)
Ohio Revised Code, Section 2903.01 (Aggravated Mur-
der)
Ohio Revised Code, Section 2903.02 (Murder)
Ohio Revised Code, Section 2923.01 (Conspiracy, At-
tempt, Complicity)
Ohio Revised Code, Section 2923.03 (Complicity)
STATEMENT OF THE CASE
On October 6, 1977, Daniel Greene was killed by an
explosive device as he was entering his car in a parking
lot. In connection with that death, Petitioner Calandra
together with others was indicted on December 5, 1977
by a state grand jury for (1) aggravated arson (Ohio Re-
vised Code §2902.02); (2) aggravated murder, with speci-
fications (Ohio Revised Code §2903.01); (3) engaging in
organized crime (Ohio Revised Code §2923.04); and (4)
conspiracy to commit aggravated murder (Ohio Revised
Code §2923.01). The conspiracy charges were dismissed
early on at the request of the state prosecutor.
Thereafter, on March 7, 1978, additional defendants
were indicted by a state grand jury for crimes connected
with the death of Daniel Greene. The charges against
3
the additional defendants were the same as those listed
in the previous paragraph, save that their indictment never
contained a charge of conspiracy. Calandra was to have
been tried with those first indicted, but his trial was sev-
ered from the others for reasons of his poor health.
In a state trial, orchestrated by the FBI, Petitioner
Calandra was tried jointly with two of the additional de-
fendants in June of 1978. The state trial judge ordered
a judgment of acquittal against all three defendants on
the charge of organized crime. The jury returned a ver-
dict of guilty against two defendants on the charges of
aggravated murder and aggravated arson, but Calandra
was found not guilty as to all charges.
On January 6, 1978, Calandra was indicted by a fed-
eral grand jury with five others (all of whom later would
be tried in three separate state trials inVolving the murder
of Greene). The indictment charged violations of 18
U.S.C. §§1962(d) and 1962(c), both sections being part
of the Racketeer Influenced and Corrupt Organizations
Act (RICO), 18 U.S.C. §1961, et seq. That indictment was
voluntarily dismissed by the United States on September 7,
1978, shortly before the scheduled trial date.
A new indictment was returned against all defendants
on May 3, 1979. Count I of the indictment recharged the
defendants with a §1962(d) RICO conspiracy charge. The
other three counts contained new charges, Count II al-
leging conspiracy under 18 U.S.C. §371 to violate 18 U.S.C.
§201(b) (3) (the federal bribery statute), and Counts III
and IV charging substantive violations of the same federal
bribery statute. As underlying predicate crimes or acts
in support of the RICO charge of Count I, the indictment
charged that defendants (1) conspired to murder John
Nardi; (2) conspired to murder Daniel Greene; (3) mur-
4
dered and aided and abetted in the murder of Daniel
Greene; and (4) bribed an FBI employee on two separate
occasions
On October 18, 1979, the court dismissed Count I (the
RICO charge), holding that it failed to state an offense
under 18 U.S.C. $1962. On December 21, 1979, Count I
was reinstated, but was severed for purposes of trial from
Counts II-IV. Trial proceeded in May, 1980, as to Counts
II-IV (the bribery charges), and at the termination of the
Government’s evidence, the district court directed a ver-
dict in favor of two defendants on all counts and for
defendant Calandra on Count III. The jury then acquitted
Calandra on all remaining counts involving bribery.
Following his acquittal in the 1980 federal court trial,
Calandra urged that the Federal Government was estopped
from proceeding on Count I of the indictment; further
that he would be subject to double jeopardy. The ruling
was against Calandra and the trial court reinstituted Count
I, the RICO charge.
Although the RICO indictment (18 U.S.C. §1962(d))
originally specified five acts of racketeering as defined
in 18 U.S.C. §1961(1)(A), each of which was alleged to
constitute a part of the pattern required under 18 U.S.C.
1961(5), by the time of jury submission only two of the
predicate acts remained:
(1) conspiring to murder Greene in violation of Ohio
Revised Code §2923.01; and
(2) aiding and abetting the murder of Greene in
violation of Ohio Revised Code §2903.01.
The District Court charged the jury that petitioner’s
culpability should be measured as that of an aider and
abettor, in view of the fact that there was neither alle-
5
gation nor proof of direct participation in the murder,
thereby invoking the complicity law of Ohio, O.R.C.
§2923.03.
The trial terminated in a finding of guilty against
all six defendants, petitioner Calandra included.
Petitioner’s conviction thus presents the legal anom-
aly of a man found innocent of every substantive crime
for which he was indicted in either state or federal court,
yet found guilty of conspiring to control racketeering
through the commission of those same state substantive
crimes (murder and conspiracy to murder) which under
Ohio substantive law merge into one crime.
REASONS FOR GRANTING WRIT OF CERTIORARI
I. The United States Supreme Court has yet to ad-
dress the due process issues under RICO, namely:
To obtain a conviction, can RICO incorporate as
two separate predicate acts the state crimes of
murder and conspiracy to murder when defen-
dant previously was acquitted in state court of
these crimes and more particularly when these
two state crimes under state substantive law
merge into one crime for purposes of state convic-
tion and sentencing.
Murder, unlike other crimes, is not a federal crime.
It cannot be prosecuted in federal court. It becomes a
part of RICO only by its incorporation as a state law
violation under 18 U.S.C. §1961, et seq.
Unlike bank robbery and other crimes in which each
sovereign separately may prosecute, a murder charge as
presented here cannot be brought by federal authorities
in federal court.
6
Aside from the basic unfairness that one acquitted
of a state crime should not be required to run the gaunt-
let a second time in a federal court trial, there is legal
support to prohibit a second trial by reason of collateral
estoppel.
In 9 A.L.R.2d 228 Res Judicata - Criminal Cases §6,
it states:
With exceptions to be noted hereinafter, is [sic] is
well settled that the criminal nature of a proceeding
does not, ipso facto, preclude a judgment rendered
therein from operating as collateral estoppel in another
criminal prosecution. In other words, the rule of
collateral estoppel is applicable in criminal as well
as civil cases.
The leading United States Supreme Court case of
Ashe v. Sevenson, 397 U.S. 436 (1970), is still the law.
It has never been overruled. In its decision the Supreme
Court stated:
The federal decisions have made clear that the rule
of collateral estoppel in criminal cases is not to be
applied with the hypertechnical and archaic approach
of a 19th century pleading book, but with realism
and rationality. Where a previous judgment of ac-
quittal was based upon a general verdict, as is usually
the case, this approach requires a court to “examine
the record of a prior proceeding, taking into ac-
count the pleadings, evidence, charge, and other rel-
evant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from
consideration.” ...
7
The ultimate question to be determined, then, in the
light of Benton v. Maryland, supra, is whether this
established rule of law is embodied in the Fifth
Amendment guarantee against double jeopardy. We
do not hesitate to hold that it is. For whatever else
that constitutional guarantee may embrace, North
Carolina v. Pearce, 395 U.S. 711, 717, it surely pro-
tects a man who has been acquitted from having to
“run the gantlet” a second time. Green v. United
States, 355 U.S. 184, 190. Id. at 444-446.
RICO requires an agreed-to pattern of criminal activ-
ity as well as proof that the defendant agreed and partic-
ipated in two separate predicate crimes. Surely Congress
did not intend that one of those predicate crimes could
be the state crime of murder for which that defendant
was acquitted in the state tribunal.
In 47 Missourrt LAw Review 1, Allen D. Vestal sets
forth the basic problems and unfairness of repeated crim-
inal prosecutions:
The trend in the law today is clearly moving toward
protecting defendants from unwarranted duplicative
prosecutions. The principle may never become as
clear as claim preclusion on the civil side, but, none-
theless, the general principle is gaining support on
the criminal side. 47 Missourr Law Review 1 at 46.
In the instant case the Government was estopped
from retrying Calandra on the predicate crime of bribery
for the reason that he was acquitted of this crime in
federal court. The reasoning which prohibited the intro-
duction of bribery evidence against Calandra in support
of a conviction of an underlying predicate crime of RICO
should apply to the state charge of murder as well.
The anomaly of the RICO conviction is set forth in
the concurring opinion below of Judge Merritt:
8
It may seem strange for a federal court to uphold
convictions under a federal statute based on two
underlying predicate state offenses for which a de-
fendant has either been acquitted at state trials (the
murder of Danny Greene) or for which he could not
be separately convicted or punished under state law
(conspiracy to murder Danny Greene). But RICO
is now unique. The normal rules of construction do
not apply to RICO... Russello v. United States, 104
S.Ct. 296 (1983). In Russello, a unanimous Supreme
Court has pointed to RICO as the only federal criminal
statute which should receive this kind of broad and
expansive interpretation: .. . (Emphasis ours.)
The Russello case does not deal with the issues in-
volved here. The issue in Russello was clearly set forth
by Justice Blackmun:
At issue here is the interpretations of the chapter’s
forfeiture provision, §1963(a)(1), and, specifically,
the meanin; of the words “any interest (the defen-
dant) has acquired . . . in violation of Section 1962.”
The issues in the case at bar far surpass the limited
question in Russello. To more aptly state it, it is not
only “strange” in the words of Justice Merritt—it is
wrong! How can the normal rules or canons of construc-
tion of criminal statute be abandoned so as to permit
the RICO statute to have such far-reaching effect? How
can such a far-reaching and expansive construction be
permitted to stand when it undermines the very founda-
~ tion of criminal law and its attendant constitutional guar-
antees?
The doctrine of dual sovereignty has not deterred
courts from preventing unconscionable application of its
rule.
In Abbate v. United States, 359 U.S. 187 (1959), a
divided court reviewed the history of dual prosecutions
9
and concluded that federal courts should not be pre-
vented from trying an individual for acts against federal
law simply because he has been tried for state crimes
involving those same acts. However, the Abbate ratio-
nale, the unhampered enforcement of federal law, pre-
sents considerations that are not present in a RICO pros-
ecution built upon the exact state crime of which a
petitioner previously has been found innocent.
As so aptly put by Justice Aldisert in United States
v. Frumento, 563 F.2d 1083 (1977) at page 1097:
An alternative ground for reversal is to demonstrate
that the Abbate rule is given vigor only when the
subsequent federal trial is based on a federal statute
protecting a federal interest distinct from the state
interest, see Abbate, supra, 359 U.S. at 194-95 (ma-
jority), 201, 79 S.Ct. 666 (Brennan, J.); that it does
not apply when the primary interest to be vindicated
and protected is an interest uf the state, whether
viewed variously from the perspectives of individual
interests, public interests, or social interests. (Em-
phasis ours.)
Petitioner respectfully represents that the questions
presented for review provide a substantial basis for in-
voking this Court’s discretion to certify the record. This
is an important area of federal law; i.e., the incorporation
of state law in the federal system and its effect on the
balance of federal/state relationships.
Some federal courts have questioned the continued
vitality of Abbate v. United States in the light of more
recent Supreme Court cases. (See United States v. Joh--
son, 516 F.2d 209, 212 (8th Cir. 1975), United States v.
Frumento, 563 F.2d 1083, 1099 to 1096 (3rd Cir. 1977),
Smith v. United States, 423 U.S. 1303 (1975) (Justice
Douglas sitting alone).)
10
Because of the questions surrounding the Abbate rule,
as a blanket rule, plus the increasing use of RICO and
its peculiar technique of assimilating state statutes, this
issue should be reviewed by this Court.
A. The predicate crimes of murder and conspir-
acy to murder merge into one predicate crime
by reason of Ohio substantive law as well as
the language and history of the RICO statute.
The elements of a RICO conspiracy are (1) that the
defendant conspire to be associated with an enterprise
in interstate commerce; (2) that he agree as part of that
conspiracy to commit a pattern of two separate predicate
acts or crimes; and (3) that the pattern of predicate
acts serves to conduct or further the enterprise. As was
held in United States v. Winter, 663 F.2d 1120 (1981),
“a RICO conspiracy count must charge as a minimum
that each defendant agreed to commit two or more speci-
fied predicate crimes in addition to charging an agree-
ment to participate in the conduct of an ‘enterprise’s’
affairs through a ‘pattern of racketeering activity.’” Id.
at 1136 (emphasis ours).
The opinion of the Court of Appeals holds that Calan-
dra committed two (2) predicate acts, conspiracy to mur-
der and murder. Yet the very facts set forth in the
Court of Appeals’ opinion reveal that Calandra was tried
under RICO pursuant to Ohio Revised Code §2923.03,
the complicity statute; he was not charged under Ohio
Revised Code §2903.01, the murder statute, which would
be applicable if he were to be charged as a principal in
the murder of Greene.
Because Petitioner was not charged as a principal
his liability on the murder charge must be tested by the
complicity statute, Ohio Revised Code §2923.03.
11
This being so, the District Court and the Court
of Appeals were required to look at the specific language
of §§2923.01 and 2923.03. This both courts failed to do.
Instead, they effectively emasculated not only the pro-
visions of paragraph (G), but also of paragraphs (J)
and (K) of §2923.01.
The complicity statute, Ohio Revised Code §2923.03
defines culpable conduct as follows:
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in
violation of §2923.01;
The conspiracy statute, §2923.01 provides in part:
(G) When a person is convicted of committing or
attempting to commit a specific offense or of
complicity in the commission of or attempt to
commit such offense, he shall not be convicted
of conspiracy involving the same offense .. .
(K) This Section does not define a separate con-
spiracy offense or penalty where conspiracy is
defined as an offense by one or more sections
of the Revised Code other than this Section.
(Emphasis ours.)
These sections clearly state that conspiracy to murder,
and complicity in murder, and murder based on aiding
or abetting are not separate acts under the cited statutes.
What the Court of Appeals did was to graft to these
statutes its own interpretation of what these statutes
mean without support of underlying law. The case of
State v. Lucas, 85 N.E.2d 154 (Ohio Ct.C.P. 1949), a
lower court decision cited by the Court of Appeals, simply
does not address the underlying Ohio statutes in question
here.
12
Contrary to the conclusion of the Court of Appeals,
this merger is part of the traditional criminal law of
Ohio. The substantive murder charge for conspiracy to
murder always has been a form of aiding and abetting.
State v. Doty, 94 Ohio St. 258 (1916). See Committee
comments following §2923.03, Ohio Revised Code, which
state:
In essence, this section codifies existing case law with
respect to “aiding and abetting.” Under the section
an accomplice is one who solicits, procures, or con-
spires with another to commit an offense, aids or
abets its commission .. .
Congress chose to define the underlying predicate
acts in terms of the Ohio conspiracy statute (R.C. 2923.01)
and the Ohio complicity statute (R.C. 2923.03). The
Government apparently agrees with this proposition
stating in its brief below that “racketeering activity”
under RICO for purposes of this case includes R.C. 2923.01,
Ohio’s conspiracy statute, and that “state predicate of-
fenses under RICO are defined by reference to state law.”
The Court of Appeals’ decision to deny the effect
of the built-in merger defense directly conflicts with
the holding in United States v. Phillips, 664 F.2d 971
(5th Cir. 1981).
Phillips holds that when different chargeable acts
of racketeering activity merge, they are not separate acts.
They become only one predicate act. They therefore
cannot be used to form a pattern of at least two separate
acts or offenses. Phillips involved a RICO conspiracy
and drug-related crimes committed in furtherance of it.
As to one defendant the claimed predicate acts were:
(1) possession of drugs with intent to distribute; and
(2) actual distribution of the same drugs, both violations
of 21 U.S.C. §841(a).
13
The court determined that two violations merged
into one completed offense under 21 U.S.C. §841(a), and
that a merged offense constituted but one predicate act.
The court held that since the two claimed predicate acts
“were merged into one, there was no separate crime
performed in furtherance of the conspiracy’s objective
that would constitute the necessary second act of rack-
eteering,” 664 F.2d at 1039. Because of the merger of
the claimed predicate acts the Court stated at page 1039:
In summary, unless there occurred two predicate
acts which Echezarreta agreed to do in furtherance
of the conspiracy to import marijuana, there was no
pattern of racketeering necessary for conviction for
participation in a RICO conspiracy. There were no
two separate acts. (Emphasis ours.)
Phillips is well reasoned. The question in any case
of claimed merger is whether different acts defined as
offenses by some jurisdiction are too closely related to
be deemed separate. That question ultimately is related
to both the jurisdiction’s own definitions of those offenses
and its decision to make the acts punishable. If a juris-
diction “merges” the acts by legislation forming a part
of the definition of the offense, it has decided that certain
conduct is not punishable when certain other conduct
also occurs. Thus, the “merger” is substantive and not
merely procedural; it is created to achieve a substantive
result.
In this case the merger results from a legislative
decision that conduct which is alleged to violate the
conspiracy statute and the complicity statute shall con-
stitute one single offense. Federal courts uniformly treat
questions of defining separate crimes for prosecution as
questions of statutory interpretation to be determined by
reference to the applicable statute. See United States
14
v. C..T. Corp., 344 U.S. 218 (1952). That is why the
Phillips court was correct. The separateness for RICO
of potential predicate acts should follow the merger doc-
trine of the same jurisdiction (Ohio) which defined the
acts as offenses, especially where the very statute pro-
vides for merger.
Thus, predicate acts defined by state law should
merge, for RICO purposes, if they merge under the same
state law that defines them as offenses, Any other result
would be inconsistent with Phillips. It also would violate
the maxim that where the meaning of a statute is clear,
it is the duty of the courts to enforce it accordingly to
its plain terms. See Yates v. United States, 354 U.S. 298,
305 (1957); Browder v. United States, 312 U.S. 335, 338
(1940).
RICO’s legislative history continues the accuracy of
these judicial opinions. The committee reports are clear
on the point:
“Racketeering activity” is defined in terms of specific
State and Federal criminal statutes. (H.R. Report
No. 1549, 91st Cong., 2d Sess., p. 35).
“Racketeering activity” is defined in terms of specific
State and Federal criminal statutes now character-
istically violated by members of organized crime.
(S.Rep. No. 617, 91st Cong., Ist Sess., p. 84.)
There is no prohibition against RICO borrowing from
state statutory law, but if reference is to be made at all,
it must be to an entire statute, not merely to those sub-
sections which promote the prosecution’s interest.
If reference is to be made to O.R.C. §2923.01(A) for
purposes of defining predicate crimes, reference must
15
also be made to subsections (G) and (K). Selective
reference cannot be made for the purpose of transforming
one state crime into two or more. The court’s failure
to apply Ohio statutes completely and to apply the Ohio
doctrine of merger of offenses was a denial of due process
of law to Petitioner. Accordingly, this issue warrants
review by this Court.
II. Since 18 U.S.C. §1962(d) requires that defendant
conspire or agree to commit two separate acts in
order to establish a pattern of racketeering ac-
tivity, can these two state acts be established by:
(a) conspiracy to murder an individual, and (b)
conspiracy or agreement to conspire to murder
that same individual.
Section 1962(d) makes it unlawful to conspire to
violate any of §1962(a), (b), or (c). The indictment
charges Calandra with violating §1962(d) by conspiring
to violate (not actually violating) §1962(c).
Section 1962(c) makes it a crime for one associated
with an interstate enterprise to conduct its affairs through
a pattern of racketeering activity, the “pattern” con-
sisting of at least two “predicate acts” from those enu-
merated in §1961(1). Thus, §1962(c) has as one element
the actual committing of a two-act pattern,
But the “pattern” element of §1962(d) is conspiring,
or agreeing, to commit a pattern of two acts, not as stated
in the decision of the Court of Appeals.
In U. S. v. Winter, 663 F.2d 1120 (1981), the Court
stated at p. 1136:
We, therefore, hold that a RICO conspiracy count
must charge as a minimum that each defendant agreed
to commit two or more specified predicate crimes in
16
addition to charging an agreement to participate in
the conduct of an “enterprise’s” affairs through a
“pattern of racketeering activity.” (Emphasis ours.)
In U. S. v. Starnes, 644 F.2d 673 (1981), the Court
stated at p. 678:
. . . Under RICO, the conspiratorial objective is a
matter different than the acts contemplated by the
conspirators. . . . (Emphasis ours.)
In U. S. v. Barton, 647 F.2d 224 (1981), the Court
said at p. 237:
. The RICO conspiracy count required instead
proof of agreements to commit murder or arson, and,
in order to establish a “pattern” of racketeering,
required proof of an agreement to perform at least
two of the predicate acts... . (Emphasis ours.)
In a recently-decided case, the Court of Appeals for
the Second Circuit, United States v. Ruggiero, et al. [Nos.
1158, 1362, 1168 and 1363, January 18, 1984], not yet offi-
cially published, stated in reversing the RICO conspiracy
conviction of one defendant:
Prevailing case law requires that for the government
to convict on a RICO conspiracy it must prove that
defendant himself at least agreed to commit two or
more predicate crimes. United States v. Bagaric,
706 F.2d 42, 62 (2nd Cir., 1983); United States v.
Brooklier, 685 F.2d 1208, 1223 (9th Cir., 1982), cert.
denied, 103 S.Ct. 1194 (1983); United States v. Winter,
663 F.2d 1120, 1136 (1st Cir., 1981), cert. denied, 103
S.Ct. 1250 (1983); United States v. Sutherland, 656
F.2d 1181, 1186-87 (5th Cir., 1981), cert. denied, 445
U.S. 949 (1982); United States v. Barton, 647 F.2d
224, 237 (2d Cir.), cert. denied, 454 U.S. 854 (1981);
17
United States v. Elliott, 571 F.2d 880, 903 (5th Cir.),
cert. denied, 439 U.S. 953 (1978). (Emphasis ours.)
In reviewing one of the convictions in Ruggiero, the
Second Circuit held that when the evidence supported
only an agreement to commit one predicate crime, there
was an absence of the two required predicate acts.
The opinion of the Sixth Circuit in this case holds
that to be convicted, defendants must actually have com-
mitted a pattern. While stating at pp. 1-2 of its opinion
that the conviction was for conspiring to participate in
the affairs of an enterprise through a pattern, the Court
goes on to say that this was a violation of both §1962(c)
and (d).
This opinion is unique in that it strips away the very
language of the charge against Calandra which required
that he be found guilty of conspiring to violate (not
actually violating) §1962(c). This opinion means that
a RICO conspiracy prosecution must prove the actual
commission of a pattern. It leaves unclear whether, in
addition, an agreement to commit two acts is necessary
for a 1962(d) conviction.
The Court of Appeals concluded that since the jury
presumably found Calandra conspired to murder and aided
in the same murder, that Calandra had committed two
predicate acts. (Incidentally, the District Court did not
permit special interrogatories to test such finding.)
Petitioner submits that to commit a RICO conspiracy
he would have to agree to undertake two predicate acts.
See, U. S. v. Elliott, 571 F.2d 880 (5th Cir. 1978) at 906-7.
It would not be sufficient to convict Petitioner on a
finding that he agreed to do only one act and actually
committed that very same act.
18
While the commission of an act may indeed prove
an agreement to commit that act, this is not the same
as holding that Petitioner agreed to commit two acts or
agreed to commit a RICO pattern.
Although the commission of the predicate act of mur-
der may be used to infer the agreement to commit murder
necessary to establish one predicate act of a RICO pat-
tern, it cannot be said that the commission of the second
predicate act—conspiring to murder the same individual
—will support an inference of agreement to commit the
second predicate act. In both instances the commission
of the two predicate acts is used to support only one
agreement to murder Greene.
If agreement is the essence of conspiracy, then it is
a pattern that defendant must agree to commit. If he
agrees only to commit one predicate act, then he has not
committed the requisite pattern.
If the conviction stands in this posture, the pattern
requirement of §1961(5) will be effectively nullified in
any RICO conspiracy case. In effect, the court will be
sanctioning conviction in conspiracy cases where a RICO
defendant only agreed to perform one predicate act.
In essence, this Court has determined that the act
of conspiring to commit murder and conspiring to conspire
to commit murder are two separate predicate crimes
making possible a conviction under RICO. Surely, this
Catch-22 was not the intent of Congress. It is not sanc-
tioned by the merger of federal authority. It is not
and should not be the law.
In this regard, this Court should consider the words
of Chief Judge Lay in United States v. Bledsoe, 674 F.2d
647 (8th Cir. 1982), at 659:
19
If, in fact, the government did not prove the defen-
dants violated RICO, then it is fundamental to fair
process of law, regardless of how much we condemn
their wrongful conduct, that they cannot be convicted
under the Act.
We are satisfied that RICO was not designed to serve
as a recidivist statute, imposing heavier sentences
for crimes which are already punishable under other
statutes. The Act was not intended to be a catchall
reaching all concerted action of two or more crim-
inals involving two or more of the designated crimes.
CONCLUSION
The expansive construction applied to the RICO stat-
ute by the Court of Appeals for the Sixth Circuit extends
the tentacles of RICO in such fashion as to effectively
deny due process of law to those charged under that Act.
The decision changes the substantive law of Ohio and
incorporates the Ohio law into RICO in a manner not
permitted by the Ohio courts. As a result of this, Peti-
tioner was denied his constitutional right to a fair and
just trial, and the State of Ohio denied its right to legis-
late and interpret its own statutes.
In effect, the decision makes RICO a recidivist stat-
ute. This not only conflicts with decisions of other appel-
late circuits but subjects the individual rights of Petitioner
to the whims and unrestrained power of the federal
government.
The unsettled issues referred to in this brief pose
questions of constitutional importance which warrant re-
view by the Supreme Court of the United States.
20
For the foregoing reasons, Petitioner requests that
a Writ of Certiorari be granted by this Court.
Respectfully submitted,
Burt FuttTon, Counsel of Record
Sixth Floor, Bulkley Building
Cleveland, Ohio 44115
(216) 241-5310
Joun P. CALANDRA, JR.
800 Standard Buildi:,’
Cleveland, Ohio 44114
(216) 861-3000
Attorneys for Petitioner
Al
APPENDIX
OPINION OF THE COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(Decided and Filed January 9, 1984)
Nos. 82-3498, 3509, 3519, 3511, 3512, 3513, and 3606
UNITED STATES COURT OF APPEALS
For THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
JAMES T. LICAVOLI (82-3498),
ANTHONY LIBERATORE (82-3509, 82-3606),
JOHN P. CALANDRA (82-3510),
PASQUALE CISTERNINO (82-3511),
RONALD CARABBIA (82-3512),
KENNETH CIARCIA (82-3513),
Defendants-Appellants.
AppeaAL from the United States District Court for the
Northern District of Ohio, Eastern Division.
Before: Merritt and KENNEDY, Circuit Judges, and
Pratt, District Judge.*
KENNEDY, Circuit Judge, delivered the opinion of the
Court, in which Pratt, District Judge concurred. Merritt,
Circuit Judge, (pp. 23-24) filed a separate concurring
opinion.
*Honorable Philip Pratt, United States District Court for the
Eastern District of Michigan, sitting by designation.
A2
KENNEDY, Circuit Judge. The six defendant-appellants
were convicted of conspiring to participate in the affairs
of an enterprise [2] through a pattern of racketeering ac-
tivities in violation of the Racketeer Influenced and Cor-
rupt Organizations (RICO) statute, 18 U.S.C. § 1962(c)
and (d)' following a jury trial, and now appeal those con-
victions. Defendant Liberatore also appeals a denial of
his motion for a new trial on a bribery conviction. All
seven appeals have been consolidated. We affirm the
judgments of conviction of all defendants.
In order to sustain a prosecution under RICO the
government must establish that defendants engaged in a
“pattern of racketeering activity,” defined as at least two
acts of racketeering activity. 18 U.S.C. § 1961(5). “Rack-
eteering activity” is defined in 18 U.S.C. § 1961(1). The
facts elicited by the prosecution at trial to prove the de-
fendants’ pattern of racketeering activity are lengthy and
complex. Briefly, the government asserts (and we agree)
that the evidence, viewed in the light most favorable to
it, established the following.
I. Facts
Defendant Licavoli is a leader of organized crime in
Cleveland. Liberatore is his second-in-command, and
Calandra also holds a position of confidence and respon-
sibility within the organization. Carabbia and Cisternino
1. Those sections provide as follows:
(c) It shall be unlawful for any person to be employed
by or associated with any enterprise engaged in, or the ac-
tivities 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.
(d) It shall be unlawful for any person to violate
any of the provisions of subsections (a), (b), or (c) of this
section.
A3
act for the organization, carrying out the orders of the top
men. Ciarcia manages a car dealership and supplies ve-
hicles for the organization’s criminal activities and also acts
on behalf of the organization in other ways.
{3} In the spring of 1976 Licavoli decided that he
needed to have one Danny Greene killed. Greene was
the leader of a rival criminal organization which had
developed a monopoly on criminal activity in West Cleve-
land. Licavoli had others in his organization contact Ray-
mond Ferritto regarding his wish to have Greene killed.?
Ferritto testified that he met at various times with each
of the defendants (except Liberatore), sometimes sep-
arately, sometimes in groups, to plan Greene’s murder.
Ferritto stalked Greene for some months without success,
sometimes assisted by Cisternino. After Ferritto had been
on the job for some time he asked Licavoli for money to
cover his expenses, and he was eventually given $5,000
by Carabbia. Licavoli also told Ferritto that he would
get a percentage of money derived from gambling in the
Warren and Youngstown areas when the murder was ac-
complished.
Ferritto and Cisternino attempted to bomb Greene’s
apartment building in order to kill him, but never carried
through because of the regular presence of older people
in the area. On another occasion they drove to a party
attended by Greene intending to kill him. They located
Greene’s car but found that it was guarded by members
of Greene’s crimina] organization seated in an adjacent
car.
Meanwhile Liberatore arranged with two other men,
Aratari® and Guiles, to kill others in Greene’s criminal
2. Ferritto later testified against all six defendants in their
state trials for Greene’s murder.
3. Aratari testified at the trial in this case.
A4
organization, and ultimately to help kill Greene as well.
Aratari and Guiles were at times assisted in their efforts
by defendants Carabbia, Calandra, Cisternino and Ciarcia.
Ciarcia and another man provided Aratari and Guiles with
a car and weapons.
Licavoli had Greene’s phone tapped in an effort to
obtain reliable information regarding Greene’s daily ac-
tivities. Carabbia [4] and Cisternino gave Ferritto the
resulting tapes. One tape revealed that Greene was to go
to a dentist’s appointment at 2:30 p.m. on Thursday, Octo-
ber 6, 1977. Defendants Licavoli, Cisternino and Carab-
bia played this tape for Ferritto on Monday, October 3.
On Thursday, the day of Greene’s dentist appoint-
ment, Cisternino and Ferritto built a bomb in an apart-
ment maintained by Cisternino. Ferritto drove to the
vicinity of the dentist’s office with the bomb in his car,
a Plymouth. Carrabbia drove a second car to the office,
a Nova. This car had a special box mounted on the side
in which the bomb was to be placed. Cisternino remained
behind at the apartment to listen to a police scanner for
calls. A few minutes after Ferritto and Carabbia arrived
at the dentist’s, Aratari and Guiles arrived in another car,
supplied by Ciarcia as the car to be used in “the Danny
Greene case.” Guiles was armed with a high powered
rifle. The plan was for Guiles to shoot Greene if he had
the opportunity. The bomb was to be used as a backup
method.
Greene arrived for his appointment, parked his car
and entered the office. Guiles apparently had no op-
portunity to shoot. A few minutes later a parking space
opened next to Greene’s car. Ferritto placed the bomb
in the box on the side of the Nova, parked the Nova next
to Greene’s car, and activated the bomb. Then he got
into the driver’s seat of the Plymouth, which was parked
A5
down the block. When Greene emerged from the office
Ferritto began to drive away, with Carabbia in the back
seat. Carabbia then detonated the bomb with a remote
control device and Danny Greene was killed.
All si» defendants in the present case were tried for
Danny Greene’s murder in state court. Cisternino, Carab-
bia and Ciarcia were convicted of Greene’s murder.
The RICO prosecution now on appeal also relied on a
separate set of events to establish a predicate criminal act.
[5] Ms. Geraldine Rabinowitz‘ worked as a file clerk in the
Cleveland office of the FBI, while her then-fiance Jeffrey
Rabinowitz worked at the car dealership that Ciarcia
managed. In the spring of 1977 Ciarcia asked Ms. Rabino-
witz to obtain confidential information from the FBI re-
garding investigations of himself, Liberatore, and Licavoli.
Ms. Rabinowitz complied, after some hesitatioa, and con-
tinued to steal confidential information for Ciarcia from
time to time throughout the summer of 1977. Ciarcia
assured Ms. Rabinowitz that she would in return be ‘‘cov-
ered” for a down payment on a new home that she and
her fiance planned to buy. On October 12, 1977 the
Rabinowitzes met with Liberatore and Ciarcia, and the
Rabinowitzes asked for $15,000 for a down payment on
the home. Although Liberatore was at first unwilling to
comply with this request, the next day he delivered a
paper bag to Ms. Rabinowitz containing $15,000 in cash.
Counsel for Liberatore characterized this payment as a
“loan”, but no interest was set. no repayment schedule
made, and no collateral specified. The stolen FBI docu-
ments were later found at Ciarcia. car dealership. All
six defendants were charged with two counts of bribery
4. Ms. Rabinowitz testified at the federal bribery trial and
the trial in this case
A6
and one count of conspiracy to commit bribery and were
tried in federal court. Ciarcia pleaded guilty to all three
counts, and Liberatore was convicted of the conspiracy
count and one substantive count.
All six defendants were tried together in federa! court
for the RICO violation. The jury found all six guilty of
having violated RICO. Defendants now raise a large num-
ber of issues on appeal.
II. Conspiracy to Murder May Be a Predicate Act for
a RICO Conviction
The District Court instructed the jury that there were
three possible acts which the jury could find to serve as
[6] predicate acts of racketeering for the RICO charge.
These were: 1) conspiracy to murder Danny Greene;
2) the murder of Danny Greene; and 3) bribery. The
court instructed that the bribery act applied only to de-
fendants Liberatore and Ciarcia. The jury therefore had
to find that the other four defendants both conspired to
murder, and murdered Danny Greene in order to convict
them of the RICO violation. These four defendants (Li-
cavoli, Calandra, Carabbia, Cisternino) now argue that con-
spiracy to commit murder cannot serve as a predicate act
for a RICO conviction, and that their RICO convictions
therefore cannot stand.
Under 18 U.S.C. § 1961(1)(A) racketeering activity
includes “any act or threat involving murder... .” Con-
spiracy to murder on its face fits within this definition
of racketeering activity. Conspiracy is “an act... in-
volving murder.” However the original versions of the
bill that ultimately became RICO specifically included
conspiracy as a predicate act under section 1961, while the
final bill did not. Defendants argue that Congress’ failure
specifically to enumerate conspiracy in the final version
AT
of the bill demonstrates a legislative intent not to allow
conspiracy as a predicate act.
The Second Circuit rejected this argument with respect
to conspiracies to commit acts listed ir the definition of
racketeering activity under section 1961(1)(D) in United
States v. Weisman, 624 F.2d 1118 (2d Cir.), cert. denied,
449 U.S. 871 (1980). See also United States v. Brooklier,
685 F.2d 1208, 1216 (9th Cir. 1982) (conspiracy to extort
may be a predicate act), cert. denied, ........ PR. nice , 103
S. Ct. 1194 (1983); United States v. Phillips, 664 F.2d 971,
1015 (5th Cir. 1981) (conspiracy to import marijuana may
be a predicate act), cert. denied, 455 U.S. 912 (1982).
Under 18 U.S.C. § 1961(1)(D), racketeering activity
includes:
[A]ny offense involving fraud connected with a case
under title 11, fraud in the sale of securities, or the
[7] felonious manufacture, importation, receiving, con-
cealment, buying, selling, or otherwise dealing in nar-
cotic or other dangerous drugs, punishable under any
law of the United States.
The Second Circuit in Weisman based its holding on
the expansive language in (D), “any offense involving”
the enumerated substantive crimes, “punishable under any
law of the United States.’’> The court noted:
This conclusion is bolstered by the fact that sub-
sections (B) and (C) [of § 1961(1)], which list most
of the other predicate acts chargeable under RICO,
conspicuously lack the broad “any offense involving”
language of subsection (D) and, in fact, require that
5. This language also appeared in the original drafts of the
bill that became RICO.
A8
the act be indictable under specifically enumerated
sections of the criminal code.®
624 F.2d at 1124.
Subsection (A) of 18 U.S.C. § 1961(1) contains lan-
guage similarly expansive to that in subsection (D). Under
(A), racketeering activity includes “any act or threat in-
volving the substantive crime, “chargeable under state law
and punishable by imprisonment for more than one year.”
The “provisions of . . . [RICO] should be liberally con-
strued to effectuate its remedial purposes.’’ Organized
Crime Control Act of [8] 1970, Pub. L. No. 91-452, § 904(a),
84 Stat. 947. We see no indication that Congress intended
conspiracy to commit murder not to be a predicate act
under section 1961(1)(A) along with conspiracy to ex-
tort, to commit securities fraud or to import drugs under
section 1961(1)(D). The Fifth Circuit took the position
that conspiracy to commit murder may be a predicate act
in United States v. Welch, 656 F.2d 1039, 1063 n.32 (5th
Cir. 1981), cert. denied, 456 U.S. 915 (1982), saying,
There is merit to the argument that subsection A [of
18 U.S.C. § 1961(1)] is as broad and inclusive as the
language of subsection D. If conspiracy to commit a
section D offense can serve as a predicate act for a
RICO charge, then conspiracy to commit a subsection
6. Cf. Brooklier, supra, which holds that
{cJonspiracies or attempts can serve as the underlying
racketeering activities because 18 U.S.C. § 1961(1)(B) de-
fines “racketeering activity’’ as including those offenses in-
dictable under 18 U.S.C. § 1951. Section 1951, in turn, makes
punishable attempts or conspiracies to obstruct, delay, or
affect commerce by robbery, extortion or physical violence.
685 F.2d at 1216.
7. Courts have construed the provisions of RICO liberally
in applying its criminal remedies. See Blakey, The RICO Civil
Fraud Action in Context: Reflections on Bennett v. Berg, 58
Notre Dame L. Rev. 237, 245 n. 25 (1982), and cases cited therein.
Ag
A offense should also be able to serve as a predicate
act. The language of subsection A itself—which in-
cludes “any act or threat involving murder”—appears
to contemplate a conspiracy to commit murder. A
conspiracy to commit murder is an act involving mur-
der. (emphasis in original)
We adopt the Fifth Circuit’s reasoning in Welch and hold
that conspiracy to commit murder may be a predicate act
under 18 U.S.C. § 1961(1) (A) for a RICO charge.
III. Murder and Conspiracy to Murder Are Separate
Offenses Under Ohio Law and May Both Be
Predicate Acts Under RICO
For a defendant to be convicted under RICO he must
have committed more than one act of racketeering activity.
In order for a state crime, such as murder or conspiracy to
murder to serve as a predicate act, it must be “chargeable
under state law and punishable by imprisonment for more
than one year” under 18 U.S.C. § 1961(1)(A). Federal
law holds that conspiracy to commit a substantive offense
and the substantive offense itself are two separate crimes.
See, e.g., Iannelli v. United States, 420 U.S. 770, 777 (1975).
Under Ohio law, conspiracy to murder and murder are also
two separate crimes. [9] However, a person convicted of
the substantive crime “shall not be convicted of conspiracy
involving the same offense.” Ohio Rev. Code § 2923.01(G).
Thus under Ohio law a person cannot be convicted of or
sentenced for both conspiracy to commit murder and the
murder crime itself. Defendants argue that the two acts
consequently are not both “chargeable under state law and
punishable for more than one year.”
We disagree, for two reasons. First Ohio law, in both
the Ohio Revised Code and the earlier case law, provides
that conspiracy to commit a substantive act and the sub-
Al0
stantive act are separate offenses, both separately charge-
able under state law. In State v. Lucas, 85 N.E. 2d 154,
156 (Ohio Ct. C.P. 1949), the court stated:
The conspiracy to commit a crime is an entirely dif-
ferent offense from the crime that is the object of the
conspiracy. It is not a substantive offense, but essen-
tially a crime of intent. It does not merge in the
completed offense. The unlawful combination and
confederacy constitute the essential element of crim-
inal conspiracy rather than the overt acts done in pur-
suance thereof and neither the success nor failure of
criminal conspiracies is determinative of the guilt or
innocence of the conspirators.
Lucas predates the current Ohio statutory provision, Ohio
Rev. Code § 2923.01. The statute in Lucas made it a crime
{10} to conspire to defraud. Under this statute, unlike the
current one, a defendant could be convicted and sentenced
separately for the substantive crime and conspiracy to
commit the substantive crime. Lucus is significant here,
however, for its articulation of the common law of Ohio
that the conspiracy and the substantive crime are “entirely
different.”
8. The statute provides, in part:
(A) No person, with purpose to commit or to promote
or facilitate the commission of aggravated murder or murder,
kidnapping, compelling prostitution or promoting prostitu-
tion, aggravated arson or arson, aggravated robbery or rob-
bery, aggravated burglary or burglary, or a felony offense
of unauthorized use of a vehicle, corrupting another with
drugs, theft of drugs, or illegal processing of drug documents
shall do either of the following:
(1) With another person or persons, plan or aid in
planning the commission of any such offense;
(2) Agree with another person or persons that
one or more of them will engage in conduct which fa-
cilitates the commission of any such offense.
All
The Ohio Revised Code has not modified this common
law precept. Murder is a crime, chargeable under Ohio
law, Ohio Rev. Code § 2903.02, and punishable by imprison-
ment for more than one year, § 2929.02. Conspiracy is also
a crime in Ohio, Ohio Rev. Code § 2923.01(A), and is
punishable by imprisonment for more than one year,
§ 2929.11. RICO nowhere indicates that two criminal acts
otherwise qualifying as predicate acts may not both con-
stitute predicate acts because under state law a defendant
could not be convicted of or sentenced for both crimes.
Secondly, contrary to defendants’ contention, it is irrel-
evant whether these particular defendants could have been
charged under Ohio law and imprisoned for more than one
year for both conspiracy to murder and murder. This argu-
ment has been raised and rejected several times in the
context of state statutes of limitations, when the state
statute has run on a state crime which is offered as a pred-
icate act for a RICO violation. Courts have held that xe-
gardless of the running of the state statute the defendant
is still “chargeable” with the state offense within the mean-
ing of 18 U.S.C. § 1961(1) (A). United States v. Malatesta,
583 F.2d 748, 758 (5th Cir. 1978), cert. denied, 440 U.S.
692 (1979); United States v. Davis, 576 F.2d 1065, 1066-67
(3d Cir.), cert. denied, 439 U.S. 836 (1978); United States
v. Forsythe, 560 F.2d 1127, 1134 (3d Cir. 1977). The
reference to state law in the statute is simply to define
the wrongful conduct, and is not meant to incorporate state
procedural law. United States v. Brown, 555 F.2d 407, 418
n.22 (5th Cir. 1977), cert. denied, 435 U.S. 904 (1978). The
Third Circuit noted in United States [11] v. Frumento, 563
F.2d 1083, 1087 n.8A (3d Cir. 1977), cert, denied, 434 U.S.
1072 (1978):
Section 1961 requires, in our view, only that the con-
duct on which the federal charge is based be typical
of the serious crime dealt with by the state statute,
Al2
not that the particular defendant be “chargeable under
State law” at the time of the federal indictment. (em-
phasis in original)
We agree and hold that conspiracy to murder and murder
may both constitute predicate acts in this case, regardless
of the fact that a defendant cannot under Ohio law be
separately punished for having committed both crimes.
Ohio law does define the two acts as separate crimes,
each punishable by imprisonment for more than one year,
and this is all that is required under 18 U.S.C. § 1961
(1) (A).
IV. Acquittal in State Court of Criminal Acts Does
Not Bar Their Use As Predicate Acts for a RICO
Conviction
Defendants Licavoli and Calandra were acquitted in
state court proceedings of murdering Greene and conspir-
ing to murder Greene. Consequently, they argue, they
were not “chargeable” with the murder or conspiracy to
commit murder, as required under 18 U.S.C. § 1961(1) (A),
and murder and conspiracy to commit murder could not
therefore serve as predicate acts for their RICO convictions.
We disagree. Frumento is directly on point. Defen-
dants in that case were acquitted in state court on charges
of bribery, extortion and conspiracy to accept bribes. They
were then convicted in federal court of violating 18 U.S.C.
$1962(c) and (d), with the above crimes as predicate
acts. On appeal defendants argued that the conviction
was barred by the double jeopardy clause of the fifth
amendment. The Third Circuit disagreed. The court said,
{12} [RICO] forbids “racketeering,” not state of-
fenses per se. The state offenses referred to in the
federal act are definitional only; racketeering, the fed-
Al3
eral crime, is defined as a matter of legislative drafts-
manship by a reference to state law crimes. This
is not to say ... that the federal statute punishes
the same conduct as that reached by state law. The
gravamen of section 1962 is a violation of federal law
and “reference to state law is necessary only to identify
the type of unlawful activity in which the defendant
intended to engage.” United States v Cerone, 452
F.2d 274, 286 (7th Cir. 1971). (Footnote omitted. )
563 F.2d at 1087. See also United States v. Phillips, 664
F.2d 971, 1015 (5th Cir. 1981), cert. denied, 455 U.S. 912
(1982); United States v. Anderson, 626 F.2d 1358, 1367
(8th Cir. 1980), cert. denied, 450 U.S. 912 (1981).
V. The Prior Testimony of Raymond Ferritto Was
Properly Admitted at Trial
Ferritto had testified at the state murder trials’ of
the six defendants. He refused to testify at the federal
RICO trial, however, claiming that the government had
breached its plea agreement with him, and consequently
he had to serve more time than he had been promised.
Also, he asked for immunity from prosecution for perjury
as a condition of his testifying. The government granted
him use immunity, that is immunity from the use of his
testimony in the RICO case to prove that his prior testi-
mony was perjurious, but granted him no immunity for
any perjury he might commit in the RICO trial itself.
Ferritto still refused to testify and the court held him
in contempt.
9. There were three separate trials in state court: 1) the
trial of Licavoli, Cisternino, and Carabbia; 2) tle trial of Calandra,
Ciarcia and Lanci (not a defendant in this action); and 3)
Liberatore’s trial. The charges in all three trials were conspiracy
to murder Danny Greene, and Greene’s murder.
Al4
[13] The court then granted the government’s mo-
tion to read Ferritto’s testimony from the three state trials
into the record, finding that Ferritto was “unavailable”
within the meaning of Fed. Rule Evid. 804(a). The court
instructed the jury that Ferritto’s testimony in the state
trial of Licavoli, Cisternino and Carabbia was admissible
only against those three defendants; Ferritto’s testimony
from the trial of Calandra and Ciarcia was admissible
only as to those two, and Ferritto’s testimony in Libera-
tore’s trial was admissible only against Liberatore. Fer-
ritto’s testimony in the first two trials was substantially
the same. Upon the request of Liberatore’s attorney the
prosecution did not read Ferritto’s full testimony from
Liberatore’s trial, but only the few lines that related specif-
ically to Liberatore.
Defendants make several arguments regarding Fer-
ritto’s testimony. First they claim that the government
was responsible for Ferritto’s failure to testify. He was
therefore not “unavailable” under Fed. Rule Evid. 804(a),
and his testimony was inadmissible. Rule 804(a) states,
in part “[a] declarant is not unavailable as a witness if
his . . . absence is due to the procurement or wrongdoing
of the proponent of his statement for the purpose of pre-
venting the witness from attending or testifying” (em-
phasis added). The law is clear that Ferritto’s prior testi-
mony, if otherwise admissible, was not made inadmissible
by the government’s actions unless the government actually
sought to prevent the witness from testifying. Steele v.
Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982), cert. denied,
sie US. ........, 103 S.Ct. 1501 (1983); United States v.
Seijo, 595 F.2d 116, 119-20 (2d Cir. 1979). This was hardly
the case. Ferritto was the government’s star witness. The
government even offered him immunity from possible per-
jury prosecution to induce him to testify. There is no
Al5
suggestion in the record that the government breached
its plea agreement in order to prevent Ferritto from testify-
ing at the RICO trial.
{14] Defendants further argue that Ferritto’s testi-
mony should not have been admitted because 1) defendants
did not have an adequate motive and opportunity to cross-
examine Ferritto in the state proceedings, and 2) admission
of the prior testimony violated the confrontation clause
of the sixth amendment.
Federal Rule of Evidence 804(b) (1) allows admission
of prior testimony if the issues in both cases are sufficiently
similar so as to give the pariy against whom the testimony
is offered “an opportunity and similar motive to develop
the testimony.” Here the issues in the cases were nearly
identical, since in the state cases the defendants were
charged with murder and conspiracy to commit murder,
and in the RICO prosecution these two acts constituted
the predicate acts for the RICO conviction. Defendants
argue that because of the additional “enterprise” element
that must be shown in a RICO prosecution their motive
to cross-examine was not the same here as in the state
prosecutions. However, defendants have failed to point
to any matter that they would have raised in cross-exam-
ination with respect to the enterprise element that they
did not raise in the prior proceedings.
Each defendant certainly had adequate motive to cross-
examine Ferritto with respect to testimony given in his own
trial. The jury was carefully instructed to consider against
each defendant only the testimony that Ferritto had given
at the defendant’s own trial. We agree with defendants
that it may be humanly impossible for a juror completely
to compartmentalize multiple versions of an event and
apply each version only against a certain defendant. How-
Al6
ever, this is not to say that evidence implicating more
than one defendant in a joint prosecution may never be
admitted with an instruction that it applies only to a
single defendant. In this case the testimony in the state
trials was substantially the same, so it is hard to see
how any of the defendants was prejudiced by admission
of more than one version of the events. To the extent
that there are discrepancies in Ferritto’s testimony the
jury was made [15] aware of these by virtue of having
heard the different versions. The jury heard both Fer-
ritto’s direct testimony and cross-examinations. We can-
not say that Ferritto’s testimony was improperly admitted.
The above analysis applies as well with respect to
defendants’ confrontation clause argument. The Supreme
Court long ago held that admitting testimony of an un-
available witness does not violate the confrontation clause.
Mattox v. United States, 156 U.S. 237, 242-44 (1895). The
confrontation clause requires that a hearsay declarant be
unavailable, and that his statements bear some “indicia of
reliability.” Ohio v. Roberts, 448 U.S. 56, 65 (1980); Man-
cussi v. Stubbs, 408 U.S. 204, 213 (1974); California v.
Green, 399 U.S. 149, 161 (1970); Pointer v. Texas, 380 U.S.
400, 407 (1965). We have concluded that Ferritto was
unavailable. Ferritto has been cross-examined at length
by one or more of the defendants on all of the testimony
that was read to the jury and those cross-examinations
were also read to the jury. All of the defendants have
cross-examined Ferritto about the same set of facts. The
defendants’ motives for cross-examination at the state trials
and the RICO trial were substantially identical. We find
that the indicia of reliability necessary to satisfy the con-
frontation clause are present here and hold that Ferritto’s
testimony in the state prosecutions was properly ad-
mitted.
Al7
Defendants also claim that they were prejudiced by the
fact that the District Court had Ferritto’s testimony re-
read to the jury, upon the jury’s request, during jury de-
liberations. It is within the judge’s discretion to re-read
testimony for a deliberating jury. Indeed, the cases in this
area generally challenge the judge’s decision not to have
the testimony re-read to the jury. See, e.g., United States
v. Toney, 440 F.2d 590, 591-92 (6th Cir. 1971); United States
v. Almonte, 594 F.2d 261, 265 (1st Cir. 1979). The tran-
scripts of Ferritto’s testimony are lengthy and comprised
a large portion of the state’s case, and it is understand-
able that the jury felt a need to hear [16] them a second
time during deliberation. Defendants have failed to show
that the District Court abused its discretion in allowing
the transcripts to be read a second time.
VI. There Was Sufficient Evidence for the Jury to
Convict the Defendants
Defendant Carabbia argues that there was insufficient
evidence to show that defendants agreed to participate in
the affairs of the enterprise. We find this claim to be
wholly without merit, as the summary of facts recited
above—taken from testimony introduced at trial—demon-
strates.
Defendant Liberatore argues that there was insuffici-
ent evidence to establish that he and Ciarcia bribed Ms.
Rabinowitz to provide them with confidential FBI infor-
mation and documents. This Court dealt fully with this
question and resolved it against Liberatore in United States
v. Lanci and Liberatove, 669 F.2d 391, 393 (6th Cir.), cert.
denied, 457 U.S. 1134 (1982), and we will not consider
it further here.
Al8
VII. Principles of Double Jeopardy Did Not Bar the
Government From Using Bribery As a Predi-
cate Offense for the RICO Convictions
Defendants Liberatore and Ciarcia were convicted in
federal court of bribing Ms. Rabinowitz. This bribery
offense was also used as a predicate act for the RICO
convictions of these two defendants. Liberatore and
Ciarcia now claim that use of the bribery offense in the
RICO prosecution violated the double jeopardy clause of
the fifth amendment.
The Supreme Court articulated the analysis to be ap-
plied to statutory schemes in or'er to evaluate them for
double jeopardy purposes in Whalen v. United States, 445
U.S. 684 (1980). First, courts should apply the “Block-
burger test” articulated in Blockburger v. United States,
284 U.S. 299 (1932), in order to determine whether the
same act constitutes a violation of two distinct statutory
provisions. To see whether [17] there are two offenses or
only one the court must determine whether each provision
requires proof of a fact which the other does not. When
the offenses are the same under the Blockburger test,
Whalen holds that “cumulative sentences are not per-
mitted, unless elsewhere specifically authorized by Con-
gress.” 445 U.S. at 692.
Even if the predicate act of bribery and the RICO
charge fail the Blockburger test, which we do not de-
cide,’° Congress did specifically authorize cumulative sen-
tences under RICO. United States v. Hartley, 678 F.2d
961 (11th Cir. 1982); United States v. Anderson, 626 F.2d
10. Cf. United States v. Anderson, 626 F.2d 1358, 1367 (8th
Cir. 1980), cert. denied, 450 U.S. 912 (1981), in which the court
concluded that the enterprise element of the RICO offense con-
stitutes an element of the crime not required for the predicate
criminal acts.
Alg
1358, 1367 (8th Cir. 1980), cert. denied, 450 U.S. 912 (1981);
United States v. Aleman, 609 F.2d 298, 306 (7th Cir. 1979),
cert. denied, 445 U.S. 946 (1980); United States v. Rone,
598 F.2d 564, 571 (9th Cir. 1979), cert. denied, 445 U.S. 946
(1980). As the Rone court noted:
There is nothing in the RICO statutory scheme which
would suggest that Congress intended to preclude
separate convictions or consecutive sentences for a
RICO offense and the underlying or predicate crimes
which make up the racketeering pattern. The racke-
teering statutes were designed primarily as an ad-
ditional tool for the prevention of racketeering ac-
tivity, which consists in part of the commission of a
number of other crimes. The Government is not re-
quired to make an election between seeking a con-
viction under RICO, or prosecuting the predicate of-
fenses only. Such a requirement would nullify the
intent and effect of the RICO prohibitions.
598 F.2d at 571.
[18] This Court has ruled on a closely related question
in United States v. Morelli, 643 F.2d 402 (6th Cir.), cert.
denied, 453 U.S. 912 (1981). Morelli was convicted of
two counts of wire fraud, and these acts were used as
predicate offenses for a RICO conviction. Morelli com-
plained that he was subject to cruel and unusual punish-
ment in violation of the eighth amendment because he
was sentenced to fifteen years for the RICO violation, in
addition to ten years for the wire fraud crimes."! We held
that Congress “may constitutionally make the commission
of crimes within a specified period of time and within the
course of a particular type of enterprise an independent
11. Appellants Liberatore and Ciarcia are serving concur-
rent, not consecutive sentences for their bribery and RICO con-
victions.
A20
criminal offense... .” 643 F.2d at 413. We now hold
that there was no violation of double jeopardy in trying
defendants Liberatore and Ciarcia for both the federal
bribery charge and the RICO charge.
VIII. The District Court Did Not Err in Its Eviden-
tiary Rulings
We have reviewed defendants’ challenges to various
evidentiary rulings made by the District Court in ad-
mitting:
1) references to court-ordered electronic surveillance
of Licavoli in which the agent referred to Licavoli’s activi-
ties as “criminal”;
2) references to prosecution witnesses as being in the
Witness Protection Program as suggesting that defendants
had threatened the witnesses;
3) references to plea bargaining agreements as sug-
gesting that the government vouched for the truthfulness
of the witness’ testimony;
4) the admission of co-conspirator statements under
Fed. Rule Evid. 804(d)(2)(E) as violating the confronta-
tion clause of the sixth amendment.
We find all of these challenges to be without merit.
[19] IX. The District Court Did Not Err in Denying
Defendants’ Motion for Severance
Defendants Licavoli, Calandra and Cisternino argue
that the District Court erred in failing to grant their mo-
tions for severance at trial under Rule 14, Fed. R. Crim.
Pro. They argue that they were prejudiced by evidence
offered against other defendants at trial, and that the
court’s instructions to the jury could not have obviated
A2l
that prejudice. Defendants complain primarily of evidence
of bribery introduced against Liberatore and Ciarcia.
Rule 14 provides that severance may be granted if
substantial prejudice would result to an individual defen-
dant tried jointly with another.’* The question of whether
to grant a motion for severance is committed to the trial
court's discretion, and rulings under Rule 14 are review-
able only on abuse of discretion. United States v. Goldfarb,
643 F.2d 422, 434 (6th Cir.), cert. denied, 454 U.S. 827
(1981); United States v. Bright, 630 F.2d 804, 813 (5th Cir.
1980); United States v. Mardian, 546 F.2d 973, 977 (D.C.
Cir. 1976) (en banc); United States v. Marionneauzx, 514
F.2d 1244, 1248 (5th Cir. 1975), cert. denied, 434 U.S. 903
(1977).
The general rule in conspiracy cases is that persons
indicted together should be tried together. United States
v. Robinson, 707 F.2d 872, 879 (6th Cir. 1983); United States
v. Dye, 508 F.2d 1226, 1236 (6th Cir.), cert. denied, 420 U.S.
974 (1975); United States v. Echeles, 352 F.2d 892, 896
(7th Cir. 1965). This is particularly the case when, as
here, offenses charged may be established against all the
defendants with the same evidence. United States v.
Hamilton, 689 F.2d 1262, 1275 [20] (6th Cir.), cert. denied,
pans US. ........, 103 S.Ct. 753 (1982); Dye, 508 F.2d at 1236;
United States v. McPartin, 595 F.2d 1321, 1333 (7th Cir.
1979). The potential prejudice to the defendant must be
balanced against competing societal goals of efficient and
speedy trials. United States v. Davis, 707 F.2d 880 (6th
12. Rule 14 provides in relevant part:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial to-
gether, the court may order an election or separate trials
of counts, grant a severance of defendants or provide what-
ever other relief justice requires. * * *°
A22
Cir. 1983); United States v. Kopituk, 690 F.2d 1289, 1317-18
(11th Cir. 1982); Dye, 508 F.2d at 1236; United States v.
Rogers, 475 F.2d 821, 828 (7th Cir. 1973). However, a
single joint trial is impermissible if it violates a defendant’s
right to a fundamentally fair trial. Echeles, 352 F.2d at
896; Barton v. United States, 263 F.2d 894, 898 (5th Cir.
1959).
Courts have put a heavy burden on defendants seek-
ing severance, requiring a strong showing of prejudice.
Opper v. United States, 348 U.S. 84, 94 (1954); Hamilton,
689 F.2d at 1275; Bright, 630 F.2d at 813; United States v.
Marable, 574 F.2d 224, 231 (5th Cir. 1978). An especially
compelling showing is required in RICO prosecutions. As
the court noted in United States v. Provenzano, 688 F.2d
194, 199 (3d Cir.), cert. denied, ........ if Sams , 103 S.Ct.
492 (1982), “in a case of this nature it is preferable to
have all of the parties tried together so that the full extent
of the conspiracy may be developed.”
Upon a careful review of the record we cannot say that
defendants have shown the compelling prejudice required
for a granting of severance. At the heart of defendants’
severance claim is the fact that some of them were not
named in all three of the predicate racketeering acts for
which evidence was introduced. We recently held in Davis
that this circumstance alone does not necessitate severance.
707 F.2d at 883. The jury was carefully instructed that the
evidence of bribery was admissible only against Libera-
tore and Ciarcia, and there is nothing in the record to in-
dicate that the jurors were confused or misled. Testimony
regarding the other defendants in connection with the cir-
cumstances of the bribery was tangential, and over-
shadowed by the major role in the events played by
Liberatore and Ciarcia. The slight potential [21] prejudice
to defendants Licavoli, Calandra and Cisternino in this
A23
case by these tangential references is outweighed by the
judicial and societal interests in trying all of the defen-
dants together. We hold that the trial judge did not abuse
his discretion in denying defendants’ motion for severance.
X. The District Court Did Not Err in Declining to
Excuse a Juror During the Trial
Mr. McCourt, a juror in defendants’ RICO trial, dis-
covered late in the presentation of the government’s case
that he was acquainted with one of the government’s wit-
nesses, a Ms. Weiss who managed the apartment house
involved in the aborted bombing attempt. Mr. McCourt
knew Ms. Weiss because his aunt and uncle lived in the
same building as Danny Greene, but had not known Ms.
Weiss’ last name until he saw her at trial.
Defendant Licavoli maintains that the juror “wilfully
concealed material facts bearing on his suitability.” How-
ever, Mr. McCourt had stated during jury selection that
he had had some contacts with Danny Greene. He could
not have concealed his acquaintance with the witness
because he did not know that she would be a witness
until he saw her at trial. At that time he promptly in-
formed the court that he knew Ms. Weiss. The trial
judge then questioned Mr. McCourt regarding his ability
to make an impartial judgment, and Mr. McCourt said
that he felt he could. It is hard to see how Mr. McCourt’s
nodding acquaintance with a minor witness for the prose-
cution could have seriously prejudiced defendants. Ms.
Weiss testified that Danny Greene lived with a woman
in the apartment building that she managed, and that she
had found a box and a bottle on the property. These facts
were not in dispute, and counsel for defendant Licavoli
chose not to cross-examine Ms. Weiss. Mr. McCourt had
A24
personal knowledge that older people frequently congre-
gated in the lobby of the building, but this fact was also
not in dispute. Accordingly [22] we hold that the District
Court did not err in its failure to excuse Mr. McCourt.
XI. The District Court Did Not Err in Denying
Liberatore’s Motion for a New Trial
Defendant Liberatore appeals a denial of a motion for
a new trial on his federal bribery conviction. Liberatore
argues that there were significant inconsistencies in the
testimony of witnesses who testified against him. The
District Court found these inconsistencies to be insubstan-
tial, and, having reviewed the record, we agree.
Defendants have raised a number of other claims,
which we do not discuss here. We have considered these
and find them without merit. We affirm defendants’ RICO
convictions and affirm the District Court’s denial of Liber-
atore’s motion for a new trial.
[23] Merritt, Circuit Judge concurring. I concur in
the clear and well reasoned opinion prepared by Judge
Kennedy.
It may seem strange for a federal court to uphold
convictions under a federal statute based on two under-
lying predicate utate offenses for which a defendant has
either been acquitted at state trials (the murder of Danny
Greene) or for which he could not be separately convicted
or punished under state law (conspiracy to murder Danny
Greene). But RICO is now unique. The normal rules of
construction do not apply to RICO. Although I had earlier
believed that normal canons of construction applicable to
other criminal statutes should be applied to RICO, see
United States v, Sutton, 605 F.2d 200 (1979), reversed en
A25
banc, 642 F.2d 1001, 1042 (6th Cir. 1980) (Merritt, J., dis-
senting), the Supreme Court has now made it clear that
RICO is to be given the broadest and most expansive pos-
sible interpretation in order to carry out Congressional
intent aimed at eliminating organized crime. See United
States v. Turkette, 452 U.S. 576 ( 1981) (RICO not limited
to infiltration of a legitimate “enterprise” ); Russello v.
United States, 104 S.Ct. 296 (1983). In Russello, a unani-
mous Supreme Court has pointed to RICO as the only
federal criminal statute which should receive this kind of
broad and expansive interpretation:
The legislative history clearly demonstrates that
the RICO statute was intended to provide new weapons
of unprecedented scope for an assault upon organized
crime and its economic roots.... Further, Congress
directed, by § 904(a) of Pub. L. 91-452, 84 Stat. 947:
“The provisions of this title shall be liberally con-
Strued to effectuate its remedial purposes.” So far
as we have been made aware, this is the only sub-
Stantive federal criminal statute that contains such a
directive. .
104 S.Ct. at 302. (emphasis added). Thus, RICO, liberally
construed as required by the Supreme Court, can reason-
ably be interpreted, and therefore should be interpreted,
[24] so that a defendant can be convicted even though he
has already been acquitted or convicted of the two under-
lying offenses in state court and even though he could not
be convicted or punished for both offenses together under
State law.
In view of the Supreme Court's decisions in Turkette
and Russello, I therefore agree with our Court's expansive
construction of RICO in sections II, III, IV and VII.
A26
On the question of the admissibility of Ferritto’s prior
testimony in the three state trials, the existence of the
“enterprise” element in RICO is not a bar to admissibility,
as defendants argue, because the “enterprise” element, in
light of the Supreme Court’s holding in Turkette, has be-
come a fiction. It has become synonymous with another
element of the offense, namely, the “pattern of racketeer-
ing activity,” i.e., the two underlying state offenses. The
“enterprise” element now adds nothing to the so-called
“pattern” element. The two predicate offenses are the
“enterprise.” All that is now required for a RICO offense
is the commission of two predicate offenses which the state
defines as separately chargeable and separately punish-
able. No further indicia of “enterprise” is now necessary.
RULING OF THE UNITED STATES DISTRICT
COURT ON POST VERDICT MOTION FOR AC-
QUITTAL
(Filed July 30, 1982)
CR79-103
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Vv.
JAMES T. LICAVOLI, et al.,
Defendants.
MEMORANDUM AND ORDER
Tuomas, Senior Judge
Defendant John P. Calandra moves after verdict for
acquittal (Fed.R.Crim.P. §29(c)) and/or for a new trial
(Fed.R.Crim.P. 33). Defendant John P. Calandra and the
five other defendants (James T. Licavoli, Anthony Libera-
tore, Pasquale Cisternino, Ronald Carabbia, and Kenneth
Ciarcia) have each been found guilty “as charged in the
indictment”.
The nature of the RICO conspiracy offense of which
each was found guilty was thus defined in the court’s
final instructions:
During [the stated period) and in violation of 18
U.S.C. §1962(d), the defendants and the persons named
A28
as unindicted co-conspirators, are charged with com-
bining, conspiring and agreeing together to violate 18
U.S.C. §1962(c), i.e., that as associates in an enterprise
to control the criminal activities in various cities in
the Northern District of Ohio, by means of murder,
bribery and other activities, they engaged in activities
of an enterprise which affected interstate commerce.
[2-3] In this case, a conviction of the charged con-
Spiracy therefore requires proof of agreement to
commit each of two separate predicate acts, where a
predicate act is defined as one of the acts defined by
18 U.S.C. §1961(1).'
Counsel's assumption that the section 1962(d) offense
of conspiring to violate section 1962(c) can be broken
down into two or more agreements, a premise that is
essential to his quoted conclusion, is faulty. Conspiracy
law contemplates only one agreement. As held in United
States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1978):
[1] The essential elements of criminal conspiracy
are an agreement to commit a crime followed by an
overt act in furtherance of the agreement, e.g., United
States v. Barrera, supra; United States v. Isaacs, 516
F.2d 409 (5 Cir.), cert. denied, 423 U.S. 936, 96 S.Ct.
295, 46 L.Ed.2d 269 (1975). There must be proof
beyond reasonable doubt that a conspiracy existed,
that the accused knew of it, and that the accused, with
that knowledge, voluntarily became a part of it.
Barrera, supra. [Emphasis added. ]
1. By arguing that section 1962(d) “requires proof of
agreement to commit each of two separate predicate acts,” de-
fendant Calandra appears to be adopting this court’s rulings of
March 5 and June 3, 1982 that conspiracy is an act within the
offenses set forth in section 1961(1).
A29
United States v. Feola, 420 U.S. 671, 694 (1975), defines
the unity of the agreement in socio-legal language:
The law of conspiracy identifies the agreement to
engage in a criminal venture as an event of sufficient
threat to social order to permit the imposition of
criminal sanctions for the agreement alone, plus an
overt act in pursuit of it, regardless of whether the
crime agreed upon actually is committed. United
States v. Bayer, 331 U.S. 532, 542 (1947). Criminal
intent has crystallized and the likelihood of actual,
fulfilled commission warrants preventive action. [Em-
phasis added. ]
[4] In this court’s memorandum and order of June 3,
1982, at p.9, this court held that “‘c.nspiracy to murder’
is classified as ‘racketeering activity’ under RICO.” But
the definition of “racketeering activity” in section 1961(1)
neither expressly nor by implication requires that the
“racketeering activity” which underlies a section 1962(d)
conspiracy to violate section 1962(c) should be limited
to predicate acts that are agreements to do the predicate
act. Therefore, either an agreement (conspiracy) to do
a predicate act identified in section 1961(1) (A)? or the
commission of such a predicate act is within the contem-
plation of a section 1962(d) conspiracy to violate section
1962(c). Neither conspiracy law nor pertinent RICO stat-
utory provisions requires the conclusion that only a con-
spiracy crime which comes within a section 1961(1) iden-
tified crime may serve as a predicate act in a section
1962(d) conspiracy to violate section 1962(c).
2. This section includes “[a]ny act or threat involving
murder, kidnapping and gambling, arson, robbery, bribery, ex-
tortion, or dealing in narcotic or other dangerous drugs, which
is chargeable under State law and punishable by imprisonment
by more than one year.”
A30
Counsel for defendant Calandra says that “the ele-
ments of the charged RICO conspiracy, 18 U.S.C. §1962
(d) ... to agree (or conspire) to be employed by or asso-
ciated with some enterprise . . . and to agree (or conspire)
to further that enterprise by doing two of the predicate
acts defined by 18 U.S.C. §1961(1)” have been “articulated
in various forms by several courts.” [5] A single sen-
tence is quoted from U.S. v. Elliott, 571 F.2d 880, 903 (5th
Cir. 1978):
To be convicted as a member of an enterprise con-
spiracy, an individual, by his words or actions, must
have objectively manifested an agreement to partic-
ipate, directly or indirectly, in the affairs of an enter-
prise through the commission of two or more predicate
crimes,
As this court reads this Elliott language, the court is
speaking of the agreement essential to establish a RICO
enterprise conspiracy. Neither in this short quote nor
in the pertinent language that follows it did the court say
or suggest that in addition to such requisite agreement
it is essential to show that a particular defendant “agreed
to commit two predicate acts,” as distinguished from the
actual “commission of two such acts:”
To achieve this result, Congress acted against the
backdrop of hornbook conspiracy law. Under the
general federal conspiracy statute,
the precise nature and extent of the conspiracy
must be determined by reference to the agreement
which embraces and defines its objects. Whether
the object of a single agreement is to commit one
or many crimes, it is in either case that agree-
ment which constitutes the conspiracy which the
statute punishes. Braverman v. United States,
317 U.S. 49, 53, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942).
A31
In the context of organized crime, this principle in-
hibited mass prosecutions because a single agreement
or “common objective” cannot be inferred from the
commission of highly diverse crimes by apparently
unrelated individuals. RICO helps to eliminate this
problem by creating a substantive offense which ties
together these diverse parties and crimes. Thus, the
object of a RICO conspiracy is to violate a substantive
RICO provision—here, to conduct or participate in
the affairs of an enterprise through a pattern of rack-
eteering activity—and not merely to commit each of
the predicate crimes necessary to demonstrate a pat-
tern of racketeering activity.
[6] Id. The court then held:
The gravamen of the conspiracy charge in this case
is not that each defendant agreed to commit arson,
to steal goods from interstate commerce, to obstruct
justice, and to sell narcotics; rather, it is that each
agreed to participate, directly and indirectly, in the
affairs of the enterprise by committing two or more
predicate crimes. Under the statute, it is irrelevant
that each defendant participated in the enterprise’s
affairs through different, even unrelated crimes, so
long as we may reasonably infer that each crime was
intended to further the enterprise’s affairs. To find
a single conspiracy, we still must look for agreement
on an overall objective. What Congress did was to
define that objective through the substantive provi-
sions of the Act. [Emphasis added. ]
Id. at 902-03. I conclude that this holding is incompatible
with the argument that a RICO conspiracy requires proof
of a separate agreement to commit each predicate act.
Abjuring an assessment that the RICO Act “pun-
ish[es] mere association with conspirators or knowledge
A32
of illegal activity,” and insisting that “(the Act’s] pro-
scriptions are directed against conduct, not status,” the
Elliott court declared:
To be convicted as a member of an enterprise con-
Spiracy, an individual, by his words or actions, must
have objectively manifested an agreement to partic-
ipate, directly or indirectly, in the affairs of an enter-
prise through the commission of two or more pred-
icate crimes. One whose agreement with the mem-
bers of an enterprise did not include this vital element
cannot be convicted under the Act. Where, as here,
the evidence establishes that each defendant, over
a period of years, committed several acts of rack-
eteering activity in furtherance of the enterprise’s
affairs, the inference of an agreement to do so is
unmistakable.®
{7] Id. at 903. This language speaks only of one agree-
ment that makes up the essential RICO conspiracy. There-
fore, this court cannot construe United States v. Martino,
648 F.2d 367, 383 (5th Cir. 1981), to mean that Elliott
requires proof of multiple agreements. Referring to the
foregoing Elliott quote, the Martino court declared:
A RICO conspiracy charge requires the additional
element of agreement; the defendant must have “ob-
jectively manifested an agreement to participate, di-
3. In its jury instructions this court required as proof of
the existence of the charged RICO conspiracy more than Elliott’s
indication that by proof of “several acts of racketeering activity
in furtherance of the enterprise's affairs’’ the “inference of an
agreement” was “unmistakable."’ The first of the five elements
of the RICO conspiracy required the government to prove that
the conspiracy was “willfully formed,” the defendant “knowingly
agreed to become a member of the charged RICO conspiracy,”
a defendant or co-conspirator knowingly committed at least one
overt act, “and that such overt act was knowingly done in further-
ance of the conspiracy."
A33
rectly or indirectly, in the affairs of an enterprise
through the commission of two or more predicate
crimes.” Elliott, 571 F.2d at 903 (emphasis in orig-
inal). The Elliott court also stated that the agree-
ment involved in a RICO conspiracy must include
the vital element of agreeing to commit the predicate
acts. [Emphasis added.] Upon proof of the commis-
sion of racketeering activity, “the inference of an
agreement to do so is unmistakable.” Id.
Id. at 383.*
Later language of Elliott reiterated the court’s posi-
tion:
Foster also had to know that the enterprise was
bigger than his role in it, and that others unknown
to him were participating in its affairs. He may
have been unaware that others who had agreed to
participate in the enterprise’s affairs did [8] so by
selling drugs and murdering a key witness. That,
however, is irrelevant to his own liability, for he is
charged with agreeing to participate in the enterprise
through his own crimes, not with agreeing to commit
each of the crimes through which the overall affairs
of the enterprise were conducted.
Id. at 904.5 The last sentence clearly says that in a RICO
4. The Martino quote, when collapsed in United States v.
Marcello, 537 F.Supp. 1364, 1379 (1982), as cited by counse] for
defendant Calandra, loses its contextual meaning.
5. U.S. v. Phillips, 664 F.2d 971, 1038 (5th Cir. 1981), re-
iterated the Elliott “standard for approving the existence of a
conspiracy in violation of 18 U.S.C.A. §1962(d).” Phillips next
stated:
As the quotation indicates, and as this Court stated in
United States v. Sutherland, 656 F.2d 1181, 1187 n4 (5th
Cir. 1981), no actua! acts of racketeering need occur; there
(Continued on following page)
A34
conspiracy a defendant is not charged with agreeing to
commit any of the predicate crimes.
Moreover, no language in Elliott or Martino states
or suggests, as defendant Calandra argues, that in a sec-
tion 1962(d) RICO conspiracy to violate section 1962(c)
only a crime of conspiracy may constitute a [9] predicate
act. Indeed, the predicate acts in Elliott included the
non-conspiratorial crimes of “arson, activity assisting a
car theft ring, . . . murdering a key witness, and dealing
in narcotics;” and in Martino the predicate acts were
acts of arson.
For the foregoing reasons, this court must respectfully
reject defendant Calandra’s “first argument.” Hence, the
court cannot accept his a fortiori conclusion that it was
“eybstantial and plain error” when “the jury was not
instructed that an agreement to commit two acts had to
be found.”
Footnote continued—
need only exist a conspiracy to perform the necessary acts
plus some overt action by one of the conspirators in further-
ance of the conspiracy.
In n.4 of Sutherland, the court observed:
Strictly speaking, the government need not have proven
that two such acts were in fact committed. This case was
not brought under the substantive RICO provisions, but is
instead based on the defendants’ conspiracy to violate such
provisions.
Id. at 1187-88. While conceivably this court might have thus
framed its instructions, it did not do so. Rather, this court
required the government to prove as element 3 of its final jury
instructions
that the particular defendant under consideration engaged
in a pattern of racketeering activity, as hereinafter defined,
by knowingly and willfully committing, or knowingly and
willfully aiding and abetting, at least two acts of racketeer-
ing activity.
A35
II.
In the “second argument,” entitled “Enterprise and
Defendant’s Association,” the final portion of counsels’
brief recognizes that they are reiterating arguments pre-
viously made and overruled by this court. The court
reaffirms the rulings previously made. However, ground
4 of defendant Calandra’s motion presents an argument
not previously ruled upon prior to verdict. It states:
The jury was allowed to receive the former testimony
of government witness Raymond W. Ferritto on re-
peated occasions despite his absence and the lack
of opportunity to cross-examine that witness on the
essential issue of RICO enterprise.
At no point in their brief do counsel for defendant
Calandra elaborate upon this ground. This court has dealt
with a similar ground of error in ruling on defendant
Licavoli’s post-verdict motion for acquittal (incorporated
by reference by defendant Calandra as the tenth and final
ground of his motions). While there is no need [10]
to repeat any portion of this court’s Licavoli ruling as
to the claimed “lack of opportunity to cross-examine
[Ferritto] on the essential issue of RICO enterprise,” the
cross-examination of Ferritto by counsel for defendant
Calandra at his state murder trial is instructive.
As to the meetings in 1976 attended by Raymond W.
Ferritto and Anthony “The Dope” Delsanter, and those
in 1976 attended by Ferritto, Delsanter, James T. Licavoli,
Pasquale Cisternino and Ronald Carabbia, counsel for
Calandra asked only questions to establish that John
Calandra was not present at any of those meetings. It
is unlikely that he would have interrogated substantially
differently if he had also faced the enterprise issue at
that time.
A36
With reference to the April 1977 meeting, Raymond
Ferritto said it occurred in Warren, Ohio at either the
The Living Room or Cherry’s. Raymond Ferritto iden-
tified those at the meeting as himself, Delsanter, Cister-
nino, Carabbia and Calandra. Asked what happened at
the meeting, Ferritto testified:
I asked about what was happening and if the deal
that we had made was still good, and was told by
both Calandra and Delsanter that it was.
Further he was asked if he had any conversation with
John Calandra, and he answered:
Yes. He said there were people calling from dif-
ferent parts of the country about what was—what
happened to Leo Moceri and that something had to
be done.
Counsel for Calandra dealt with the subject matter of
this meeting cautiously and briefly. He did not [11] ask
directly about Calandra’s participation in that meeting.
Instead, he put the question, “But it was Delsanter who
told you the deal was still on as you have indicated,
right?” Ferritto answered, “Yes, sir. We were all at
the table. Yes, sir.” Although this meeting and its con-
tent bear on the enterprise issue, limited cross-examination
by counsel for defendant Calandra, seeking to minimize
Calandra’s part in the meeting, suggests that a similar
approach would have been taken had the RICO enterprise
issue been one of the issues in the state murder trial.
It is concluded that the motive to develop testimony
by cross-examination at the state murder trial, i.e., the
motive of minimizing defendant Calandra’s involvement
with Ferritto and the acts he was to commit, was similar
to the motive to develop the present issue of enterprise.
A37
It is not likely that counsel for defendant Calandra would
have conducted a more searching cross-examination with
reference to the April 1977 meeting or to any other of
the numerous meetings that Raymond Ferritto stated that
he had with John Calandra. Hence, it is concluded that
defendant Calandra’s right of confrontation was not vio-
lated by the admission of the prior record testimony of
Raymond Ferritto.
Defendant Calandra’s post-verdict motion for acquit-
tal and his motion for a new trial are respectfully over-
ruled.
IT IS SO ORDERED.
/s/ Witttam K. THOMAS
U.S. District Senior Judge
A38
RULING OF THE UNITED STATES DISTRICT
COURT ON MOTION FOR JUDGMENT FOR AC-
QUITTAL
(Filed June 3, 1982)
CR79-103
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Vv.
JAMES T. LICAVOLI, et al.,
Defendants.
MEMORANDUM AND ORDER
THoMas, Senior Judge
Pursuant to Fed.R.Crim.P. 29(a), defendant Licavoli
moves for a judgment of acquittal. After study of the
motion and supporting brief filed on May 19, this court
determines that legal, not evidentiary issues, are pre-
sented. Hence, the court need not await the closing of
the government’s presentation of evidence to consider and
rule upon the serious legal issues raised by defendant
Licavoli.
I,
Defendant Licavoli contends that the alleged conspir-
acies to kill Daniel Greene and John Nardi cannot be
considered as predicate acts under 18 U.S.C. §1961. De-
A39
fendant argues that “the legislative history of section
1961 . . . demonstrates beyond doubt that Congress de-
cided not to include the crime of conspiracy as a separate
act of racketeering.” Defendant does not cite any [2]
legislator’s statement. Rather he refers to the absence
in the law’s final language of conspiracy provisions con-
tained in two Senate bills, S.1623 and S.1861. Title IX
of the Organized Crime Control Act of 1970 (Chapter
96 - “Racketeer Influenced Corrupt Organizations” of 18
U.S.C. §901(a)) was substituted for these bills.
S.1623 (authored by Senator Hruska, R. Neb.) was
introduced on March 20, 1969 as a possible amendment
to Title 18 of the United States Code. The amendment
sought to control the infiltration of legitimate business
by criminals through the investment of money gained
through criminal activities. Named the “Criminal Activ-
ities Profits Act,” the bill defined “criminal activity” as:
(A) any act involving murder, kidnapping, ex-
tortion, bankruptcy fraud, or the manufacture, impor-
tation, receiving, concealment, buying, or otherwise
dealing in narcotic drugs or marihuana which is pun-
ishable under any statute of the United States;
(B) any act which is punishable under [any
of a number of enumerated provisions of] title 18,
United States Code; and
(C) any conspiracy to commit any of the fore-
going offenses.
On April 18, 1969, S.1861 was introduced by Senator
McClellan (D. Arkansas). S.1861, broader in scope than
S.1623, also sought to contro] the investment of illegally
obtained funds. Cited as the “Corrupt Organizations Act
of 1969,” S.1861 stated that its purpose was
A40
To amend title 18, United States Code, to prohibit
the infiltration or management of legitimate organiza-
tions by racketeering activity or the proceeds of rack-
eteering activity, where interstate or foreign com-
merce is affected, and for other purposes.
[3] Section 1961 of S.1861 defined “racketeering ac-
tivity:”
(1) The term “racketeering activity” means (A)
any act involving the danger of violence to life, limb,
or property, indictable under State or Federal law
and punishable by imprisonment for more than one
year; (B) any act which is indictable under any of
the following [cited] provisions of title 18, United
States Code; and (C) any conspiracy to commit any
of the foregoing offenses.
As enacted into law and signed by the President on
October 15, 1970, section 1961(1) of the “Racketeer Influ-
enced and Corrupt Organizations” Act defines ‘‘racketeer-
ing activity” as:
(A) any act or threat involving murder, kid-
napping, gambling, arson, robbery, bribery, extortion,
or dealing in narcotic or other dangerous drugs, which
is chargeable under State law and punishable by im-
prisonment for more than one year;
(B) any act which is indictable under any of
the following provisions of title 18, United States
Code: (enumerated provisions follow);
(C) any act which is indictable under title 29,
U.S.C., section 186... or section 50l(c) .. .; or
(D) any offense involving fraud connected with
a case under title 11, fraud in the sale of securities,
or (various drug offenses).
A4l
Thus, as enacted, section 1961(1) omitted subdivision
(c), the conspiracy catch-all provision contained in both
$.1623 and S.1861. Defendant Licavoli argues that this
is a “delet{ion]” that “plainly demonstrates Congress’s
intention not to make conspiracy a separate act of rack-
eteering.”
The legislative history does not reflect or refer to
the dropping of the conspiracy provisions of S.1623 and
S.1861. However, the Senate legislative history chron-
icles the replacement of the S.1861 wording of [4] section
1961(1)(A) (including the conspiracy provision) with
language proposed to the Senate Judiciary Subcommittee
on Criminal Laws and Procedures by the Department of
Justice.
In a letter of August 11, 1969, Richard G. Kleindienst,
Deputy Attorney General of the United States, responded
to the subcommittee’s request for the Department of Jus-
tice’s views on S.1861. In his letter, Mr. Kleindienst
stated:
Section 1961 is a definition section containing
the definition of such terms as racketeering activity,
interstate commerce, State, person, enterprise, pattern
of racketeering activity, unlawful debt, racketeering
order, racketeering investigation, racketeering viola-
tion, racketeering investigator, and documentary ma-
terial.
It is felt that the definition of the term “rack-
eteering activity” contained in Section 1961(1)(A),
any act involving the danger of violence to life, limb,
or property indictable under state or Federal law
and punishable by imprisonment for more than one
year is too broad and would result in a large number
of unintended applications as well as tending towards
A42
complete federalization of criminal justice. It is sug-
gested therefore that Section 1961(1)(A) be rede-
fined as follows:
(1) The term “racketeering activity” means (A)
any act or threat involving murder, kidnapping,
gambling, arson, robbery, bribery, extortion, usury
or dealing in narcotic drugs, marihuana or other
dangerous drugs which is indictable under State law
and punishable by imprisonment for more than one
year.’
In his criticism of S.1861, Mr. Kleindienst did not mention
the conspiracy provision. Nor did he discuss [5] any
federal criminal statute which might be a predicate for
“racketeering activity.’ Instead, he dwelt on the De-
partment’s concerns about the wording of section 1961(A)
as it related to state crimes as predicates for “racketeering
activity.” The Department of Justice expressed the feel-
ing that the language “any [indictable] act involving the
danger of violence to life, limb, or property” was “too
broad and would result in a large number of unintended
applications.” The Department saw this as tending “‘to-
wards [a; complete federalization of criminal justice.”
The Senate Judiciary Committee on January 21, 1970
brought S.30 to the Senate floor. Portions of S.1861 had
been incorporated into S.30 to comprise Title IX of this
omnibus bill which became the Org inized Crime Control
Act of 1970. With reference to Title IX, Senator Mc-
Clellan, the principal author and proponent of the bill,
told the Senate on that day:
1. Hearings Before the Subcommittee on Criminal Laws
and Procedures of the Committee of the Judiciary, United States
Senate on Measures Relating to Organized Crime, 91st Cong., Ist
Sess. Vol. 4, p.405 (1969).
A43
The subcommittee and the full committee have now
agreed with the Department of Justice on their sug-
gested revisions and, along with other improving
amendments have approved Title IX.
See 116 Cong. Rec. 36,295 (10/12/70). Senator McClellan
was obviously referring to the revisions suggested by
Deputy Attorney General Kleindienst in his letter of
August 11, 1969. A comparison of the Department of
Justice’s suggested revisions with section 1961(1) of S.30
shows that the Senate Judiciary Committee adopted the
Department’s substitute language with only three changes,
The crime of “usury” was deleted from the [6] list of
state crimes; the words “drugs, marihuana” were deleted
to make the phrase read “narcotic or other dangerous
drugs;” and “chargeable under state law” was substituted
for “indictable under state law.”
Without any further change in the wording of Title
IX section 1961(1), S.30 was passed by the Senate on
January 23, 1970. Similarly, no change in this language
occurred in the House, although amendments to other
titles of S.30 were made by the House. The House passed
S.30 on October 7, 1970. On October 12, 1970 the Senate
determined to accept the House amendments and passed
S.30 on the same day. The President signed the bill
into law on October 15, 1970.
In this court’s memorandum and order of March 5,
1982 it determined that
Section 1961(1)(A) relating to crimes chargeable
under state law speaks of ‘‘any act or threat involving
murder, kidnapping, gambling... .” (Emphasis added.)
The subsection does not say “any act or threat of
murder....” The term “involving” suggests a broader
scope and an intent to include other acts in addition
A44
to the substantive crime. This broad reading of an
“act” includes the crime of conspiracy... .
The Department of Justice suggested the broad words
“any act... involving” as part of the substitute language
for section 1961(1)(A) while it made no reference to
the dropping of the conspiracy provision (subsection (c) ).
There also is no reference to the dropping of the con-
spiracy provision in the Senate Report? in which the
Department’s suggested section 1961(1)(A) language [7]
is approved and adopted. No inference, therefore, that
the Senate intended to exclude conspiracy acts, criminal
under state law, from section 1961(1)(A) may reasonably
be made. To the contrary, it is reasonable io infer that
the Department and the Senate Judiciary Committee con-
cluded that incorporation of the words “any act... in-
volving” intended a scope broader than the substantive
crime, thus including “conspiracy to murder, kidnap, etc.”
Immediately after suggesting a substitute section 1961
(1)(A), Deputy Attorney General Kleindienst explained:
It is felt that by thus narrowing the definition
of the class of applicable state crimes in terms of
their generic meaning, the definition of “racketeering
activity” contained in Section 1961(1)(A) will be
both broad enough to include most state statutes
customarily invoked against organized crime, yet nar-
row enough to be constitutional. United States v.
Nardello, 393 U.S. 286 (1969).
The key to interpreting the proposed language, later
adopted into S.30 and enacted into law, is Mr. Kleindienst’s
suggestion that the new language would narrow the defini-
tion of the “class of applicable state crimes in terms of
their generic meaning.” Thus defined, the “definition of
2. See S.Rep. No. 91-617, 91st Cong. Ist Sess, p.121 (1969).
A45
‘racketeering activity’ contained in section 1961(1)(A)”
is “broad enough to include most state statutes custom-
arily invoked against organized crime.” When each of
the enumerated state crimes is given its “generic meaning,”
the particular crime, e.g., “murder,” relates to or is “de-
scriptive of [its] entire group or class; general...” Amer-
ican Heritage Dictionary (1969), p.549. Given its generic
meaning, the “group or class” of the Ohio [8] crime of
murder embraces “conspiracy to murder” as well as the
substantive crime of murder.
The Senate’s adoption of suggested substitute section
1961(1) (A) and inclusion of the “state offenses by generic
designation” is exhibited in the Senate Report’s close
tracking of the Kleindienst letter in the section-by-section
analysis of the Organized Crime Control Act:
Section 1961 contains definitions.
Subsection (1) defines “racketeering activity” to
include those crimes most often associated with orga-
nized crime especially those associated with the in-
filtration of legitimate organizations. Those crimes
are murder, kidnapping, gambling, arson, bribery, ex-
tortion, narcotic violations, counterfeiting, usury, mail,
bankruptcy, wire and securities fraud, and obstruction
of justice. The state offenses are included by generic
designation, Cf. United States v. Nardello, 393 U.S.
286, 292 (1969). The Federal offenses are included
by specific reference. The term “racketeering activ-
ity” is a key statutory term. Under proposed section
1962, below, the racketeering activity is one of three
prerequisites to commission of an offense. If there
is no racketeering activity, there can be no violation
of the provisions of this title.
S.Rep. No. 91-617, 91st Cong. 1st Sess. at p.158 (1969).
A46
Moreover, it is evident that a conspiracy statute is
one which a state may invoke “against organized crime,”
a stated purpose of substituted section 1961(1)(A). As
stated by the Senate:
It is the purpose of this act to seek the eradication
of organized crime in the United States by strength-
ening the legal tools in the evidence gathering pro-
cess, by establishing new penal prohibitions, and by
providing sanctions and new remedies to deal with
the unlawful activities of those engaged in organized
crime. See Organized Crime Control Act, P.L. 91-452,
“Statement of Findings and Purpose.”
The statute further provides that:
[9] The provisions of this title shall be liberally con-
strued to effectuate its remedial purposes. See P.L.
91-452, Sec. 904(a), at 1970-1, US. Code Cong. &
Admin. News, 2nd Sess., at p.1104.
Hence it is concluded that conspiracy to commit one
of the section 1961(A)(1) proscribed acts “is chargeable
under State law and punishable by imprisonment for
more than one year.”* “Conspiracy to murder” is [10]
classified as “racketeering activity” under RICO.
3. Defendant Licavoli cites United States v. Weisman, 624
F.2d 1118 (2nd Cir. 1980), as additional support for his argu-
ment. In Weisman, the Second Circuit held that “conspiracy
[could] properly be charged as a predicate act of racketeering
under RICO, at least when it involves any of the substantive
offenses listed in section 1961(1)(D).” Id. at 1123. In reaching
its decision, the Second Circuit referred to the deletion of the
early drafts’ conspiracy language from the final version of section
1961. The court stated:
Thus, the alterations of section 1961(1) are most logically
interpreted as an attempt to restrict the conspiracies charge-
able as predicate offenses to those involving offenses listed
in subsection (D).
Id. at 1124. Defendant Licavoli argues that under Weisman, sec-
tion 1961(1) (A) cannot include conspiracy offenses.
(Continued on following page)
II.
Relying on the Ohio conspiracy statute, section
2923.01(F), defendant Licavoli argues, “This statute man-
dates the conclusion that any conspiracy here to kill
Greene and Nardi simply cannot be fragmented into two
(2) predicate ac‘s by the government in its quest for a
RICO conspiracy conviction.” Before examining section
2923.01(F), defendant Licavoli’s argument needs to be
placed in the cuntext of the RICO conspiracy charge
which is on trial.
Defendants are charged with a violation of 18 U.S.C.
§1962(d), which reads as follows:
It shall be unlawful for any person to conspire to
violate any of the provisions of subsection (a), (b),
or (c) of this section.
Footnote continued—
In reaching its determination, the Second Circuit compared
the language of subsection D to that used in subsections B and
C of section 1961(1). Sections B, C and D all deal with federal
crimes. Thus, the Second Circuit was impressed by the use of
“any offense involving” in subsection D as opposed to the use
of “any act which is indictable under [specific sections of the
United States Code]” in subsections B and C. The court con-
cluded that subsections B and C “require that the [charged]
act be indictable under specifically enumerated sections of the
{federal] criminal code.” Id. at 1124.
However, the Second Circuit’s ratio decidendi does not
extend to subsection A. Weisman did not involve any alleged
conspiracy acts under section 1961(1)(A). Indeed, the court
did not expressly examine the legislative history chronicled in
Part I, supra; nor did it specifically analyze or address the
scope and breadth of subsection A. Subsection D deals with
“acts or threats involving” designated state crimes chargeable
and punishable under State law. Weisman was decided solely
in a federal context. Thus, as recognized in United States v.
Welch, 656 F.2d 1039, 1063, n.32 (5th Cir. 1981), Weisman did
not settle the issue of “whether a charge of conspiracy to murder
is a proper predicate act for a RICO charge.”
A48
Section (c), the applicable substantive provision, pro-
vides:
It shall be unlawful for any person employed or
associated with any enterprise engaged in or the
activities of which affect, interstate or foreign com-
merce, to conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs through
a pattern of racketeering activity or collection of un-
lawful debt.
A “ ‘pattern of racketeering activity’ requires at least two
acts of racketeering activity... .” 18 U.S.C. §1961(5).
“Racketeering activity” is defined to include
any act or threat involving murder, kidnapping, gam-
bling, arson, robbery, bribery, extortion, or dealing
in narcotic or other dangerous drugs, which is charge-
able under State law and punishable by imprisonment
for more than one year.
18 U.S.C. §1961(1) (A).
{11] The indictment charges that defendant Licavoli
(and likewise defendants Calandra, Cisternino and Carab-
bia) committed three predicate acts chargeable under
state law: conspiracy to murder Nardi, conspiracy to
murder Greene, and the murder of Greene. Defendant
Licavoli questions whether a conspiracy to murder Nardi
and a conspiracy to murder Greene are separately “charge-
able under State law” and “punishab’e by imprisonment
for more than one year.” Defendant Licavoli argues that
under division (F) there exists here only one conspiracy,
not separate conspiracies to murder Greene and to murder
Nardi.
O.R.C. §2923.01(F) reads:
A person who conspires to commit more than one
offense is guilty of only one conspiracy, when such
A49
offenses are the object of the same agreement or
continuous conspiratorial relationship.
Division (F) is explained in the Committee Comments
to the law as enacted as part of the revision of Ohio’s
criminal code, effective January 1, 1974:*
This section states that even though a conspiracy
may include plans to commit more than one offense,
it is still one conspiracy when these offenses are
part of the same plan, agreement, or continuous con-
spiratorial relationship.
No reported Ohio case has considered or applied the con-
cept set forth in division (F).
In Braverman v. United States, 317 U.S. 49 (1943),
the issue was
[12] [w]hether a conviction upon the several counts
of an indictment, . . . where the jury’s verdict is
supported by evidence of but a single conspiracy, will
sustain a sentence of more than two years’ imprison-
ment, the maximum penalty for a single violation
of the conspiracy statute... .
The defendant had been charged with conspiracy to vio-
late several different provisions of the Internal Revenue
laws. The Court held that when a single agreement is
the prohibited conspiracy, only a single penalty may be
imposed. The following reasoning is important:
For when a single agreement to commit one or
more substantive crimes is evidenced by an overt
act, as the statute requires, the precise nature and
4. The only change in the 1976 amendment was to include
certain crimes involving narcotics. The language of division (F)
was not amended.
AS0
extent of the conspiracy must be determined by ref-
erence to the agreement which embraces and defines
its objects. Whether the object of a single agreement
is to commit one or many crimes, it is in either case
that aggreement which constitutes the conspiracy
which the statute punishes.
Since the single continuing agreement, which is the
conspiracy here, thus embraces its criminal objects,
it differs from successive acts which violate a single
penal statute and from a single act which violates
two statutes.
Id. at 53-54.
Similarly, in United States v. Adcock, 487 F.2d 637
(6th Cir. 1973), the court held that where a defendant
is charged with conspiring to violate two separate stat-
utory provisions but the case involves “a single conspiracy
having as its ultimate purpose the violation of more than
one substantive offense,” id. at 639, it is error to sentence
the defendant on both counts. The test is whether “de-
spite the fact that defendants may have had more than
one illegal objective ... only [13] a single agreement
existed among the defendants and the other conspirators
to commit these unlawful acts.” Id. at 639.
While this court must look to the state criminal law
to ascertain the nature of the crime of conspiracy under-
lying the predicate acts charged under state laws, it is
manifest that a limitation on the law of conspiracy is
recognized by the federal courts and that this limitation
coincides with the express language of section 2923.01(F).
Thus, it is essential to look at the facts presented in this
case to see whether there is evidence of only one agree-
A51
ment to kill Nardi and Greene or of separate agreements
to kill each man.*
The testimony of Raymonc J. Ferritto in the three
state proceedings as read into evidence in this case tends
to show that three meetings were held in the late spring
and summer of 1976. The first meeting was with Jimmy
Fratianno at the Town and Country Motel in Warren,
Ohio in May of 1976. Fratianno told him that “they
were having some problems in Cleveland and that he
thought [Ferritto] should talk to Tony DelSanter, and
that maybe [Ferritto] could make some money with him.”
Ferritto described further his conversation with Fratianno:
[14] He said they were having problems there, and
that somebody was trying to hussle in, and that Tony
might have some work for me and I might make
some money with him.
When asked what “work” meant, Ferritto responded, “I
took it to mean that he wanted somebody taken care
of .. . Somebody killed.”
“A couple of weeks later” Fratianno called Ferritto
again to arrange a meeting in Warren with DelSanter.
Ferritto described the subsequent meeting at Cherry’s
restaurant:
We exchanged greetings, and we sat down, and Frat-
ianno said, you guys have something to talk about
.. and he left.
5. The testimony of Raymond J. Ferritto will be considered
as it goes to the issue currently before the court. The court is
not suggesting that the testimony is applicable only to this
issue; indeed, it may be relevant to the federal RICO conspiracy
charge.
A52
{[DelSanter] asked me if Fratianno had told me about
the problems that they were having, and I told him
just that he said that someone was trying to muscle
in on the gambling in Cleveland. But he didn’t say
who.
And so DelSanter went on and told me that the
two fellows were Nardi—John Nardi and Greene,
from Cleveland, and they were muscling in on the
gambling operations in Cleveland. And that he
wanted them—something had to be done with them,
that they had to be taken care of. And if I was
interested.
Q: Did you say anything?
A: I said that I was interested, but I wanted
to know what was in it for me. And he said that
he would have to ask Jack, Jack White, he said,
because he’s the boss.
Q: Do you know who Jack White is?
A: Yes.
Q: Does he go by any other name?
A: Licavoli.
[15] “Two or three weeks later,” Ferritto received
a telephone call from Ronald Carabbia telling him to
attend a dinner meeting at Cherry’s the next night.
Ferritto testified that he “met Cisternino, Carabbia, Tony
DelSanter [and] Jack White” at the restaurant. He re-
lated the following about the conversation:
Tony DelSanter told Jack that I was interested
in the work, and that I wanted to know what mone-
tary returns I would get.
A53
Q: Did Jack say anything to you?
A: He said that I would be taken care of.
Q: In regards to the work that you were con-
sidering doing, did they discuss that matter any fur-
ther with Mr. White and the other people at the
table?
A: Yeah, I accepted the terms, and I said that
when they got the—when they were ready, to call
me. When they got the legwork done to call me.
The clear import of the Ferritto testimony is that
he was hired to “take care of” the people “muscling in”
on the Cleveland gambling operations. That “work”
would involve the killing of Greene and Nardi.
This court finds that the facts offered through the
Ferritto testimony support defendant Licavoli’s argument
that there exists here a single agreement, a single con-
spiracy to murder. As part and purpose of that agree-
ment, several acts of murder would be committed. How-
ever, “it is . .. [the] agreement which constitutes the
conspiracy which the statute punishes,” Braverman, 317
U.S. at 53; and this court holds that on the facts of this
case only a single agreement can be shown to have
existed.
{16} Under such circumstances, O.R.C. §2923.01(F)
permits defendant Licavoli, and indeed all of the defen-
dants, to be charged with only a single conspiracy. The
agreement cannot be bifurcated to permit separate con-
spiracy charges for each of the alleged targets. Since
under the evidence as read most favorably for the pros-
ecution the defendants could not be charged under state
A54
law with separate conspiracies to murder Nardi and to
murder Greene, those individual conspiracies may not
be used as separate predicate acts to support an 18 U.S.C.
§1962(d) conspiracy charge.
As a question of law, this court concludes that the
alleged predicate acts of conspiracy to murder Nardi and
conspiracy to murder Greene must be treated as one con-
spiracy to murder. The jury will be appropriately in-
structed on the following subject. As an element of
the RICO conspiracy, the jury must determine that as
to defendants Licavoli, Calandra, Cisternino and Carabbia
each committed the following two predicate acts: (1)
conspired to murder Daniel Greene and/or John Nardi;
and (2) murdered, or aided and abetted in the murder
of, Daniel Greene.
As to defendants Liberatore and Ciarcia, the jury
will be instructed that it must determine that each com-
mitted two of the following predicate acts: (1) conspired
to murder Daniel Greene; (2) murdered, or aided and
abetted in the murder of, Daniel Greene; (3) in or about
October 1977, gave things of value, including approxi-
mately $14,900, more or less, to [17] Geraldine Rabinowitz,
also known as Geraldine Linhardt, an employee of the
Federal Bureau of Investigation of the U.S. Department
of Justice, in violation of 18 U.S.C. §201(b) (3).
Il.
Defendant Licavoli further argues that the govern-
ment cannot fragment
a unified conspiracy (—that is, to kill Greene and
Nardi), which charge, by force of §2923.01(G) upon
conviction would merge into the substantive murder
offense involving Greene, into more than one pred-
A55
icate act so as to accommodate the RICO charge made
in this indictment.
O.R.C. §2923.01(G) reads:
When a person is convicted of committing or at-
tempting to commit a specific offense or of complicity
in the commission of or attempt to commit such
offense, he shall not be convicted of conspiracy in-
volving the same offense.
In essence defendant Licavoli is arguing that because
division (G) requires that the conspiracy and substantive
charges merge upon conviction of the substantive offense,
conspiracy to murder and murder cannot be set forth
as separate predicate acts.
Defendant Licavoli’s argument would be applicable
if he was being prosecuted in a state court of Ohio for
conspiracy to murder after conviction for the substantive
offense of murder. But it is pertinent to repeat what
was said in another context in this court’s memorandum
and order of March 5, 1982:
This criminal prosecution is for the violation of a
federal criminal statute. The defendants have not
been charged with commission of the state crimes;
they cannot be convicted of the state crimes. The
state crimes referred to are definitional only. United
States v. Frumento, 563 F.2d 1083 (3rd Cir. 1977),
cert. denied sub nom. Millhouse v. United States,
434 U.S. 1072 (1978).
{18] Previously in United States v. Forsythe, 560 F.2d
1127 (3rd Cir. 1977), the Third Circuit had explained
the incorporation of state criminal offenses for “defini-
tional purposes,” stating:
A56
RICO is a federal law proscribing various rack-
eteering acts which have an effect on interstate or
foreign commerce. Certain of those racketeering,
or predicate acts violate state law and RICO in-
corporates the elements of those state offenses for
definitional purposes. State law offenses are not the
gravamen of RICO offenses. RICO was not designed
to punish state law violations; it was designed to
punish the impact on commerce caused by conduct
which meets the statute’s definition of racketeering
activity. To interpret state law offenses to have
more than a definitional purpose would be contrary
to the legislative intent of Congress and existing
state law.
Id. at 1135 (emphasis added).
Similarly in United States v. Malatesta, 583 F.2d 748,
758 (5th Cir. 1978), cert. denied sub nom. Bertolotti v.
United States, 440 U.S. 962 (1979), the court repeated
prior Fifth Circuit determinations that “the reference
to state law in the federal] statute is for the purpose of
defining the conduct prohibited... .”
The present question is whether the predicate acts
set forth in the indictment, the conspiracy to murder
and the murder, are “chargeable,” i.e., defined, under
state law. Clearly in two separate counts of an indict-
ment a person can be charged in Ohio with conspiracy
to commit an offense and the substantive offense. There
is nothing in state law that requires a prosecutor to elect
between the substantive offense and the conspiracy.
Rather section 2923.01(G) requires a merger of the charges
only upon conviction. Because [19] defendants here will
not be convicted of the state law crimes, the bar of divi-
sion (G) is not applicable. Division (G) operates either
A57
to bar double sentences, as stated by this court in its
March 5, 1982 memorandum and order, or to bar succes-
sive prosecutions for conspiracy and the substantive of-
fense. It has no effect on the charging of a defendant
with certain crimes. Nor does section 2923.01(G) con-
stitute any of the elements of the offense of “conspiracy
to murder” under Ohio law which the United States must
prove to establish a predicate act.
The laws of Ohio define the crimes of conspiracy to
commit murder and murder. Thus these crimes are
separately “chargeable under State law.” Therefore, it
is concluded that conspiracy to murder and murder may
be set forth as separate predicate acts in a RICO sub-
stantive charge (section 1962(c)) and thus in a RICO
conspiracy charge (section 1962(d)).
Defendant Licavoli’s motion for acquittal is denied
as to all grounds asserted in his supporting brief.
Iv IS SO ORDERED.
/s/ Wittram K. THomMas
U.S, District Senior Judge
A58
RULING OF THE UNITED STATES DISTRICT
COURT ON MOTION TO INCLUDE STATE
COURT ACQUITTAL IN FEDERAL RECORD
(Filed March 11, 1980)
CR79-103
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Vv
JAMES T. LICAVOLI, et al.
Defendants.
ORDER
THomMas J.
The October 18, 1979 motion of defendant John Ca-
landra to supplement the record by including a certified
copy of the judgment of acquittal of aggravated murder
and aggravated arson entered by the Common Pleas Court
of Cuyahoga County is hereby granted nunc pro tunc as of
October 18, 1979.
IT IS SO ORDERED.
/s/ WrtLt1AM K. THOMAS
U.S. District Judge
A59
CERTIFIED JUDGMENT OF ACQUITTAL OF
THE COURT OF COMMON PLEAS
(Dated October 25, 1978)
No. CR-38130
IN THE COURT OF COMMON PLEAS
INDICTMENT
Aggravated Arson w/ct Aggr. Murder w/specs. w/ct
Engage in Organized Crime
STATE OF OHIO,
Plaintiff,
vs.
JOHN CALANDRA,
Defendant.
JOURNAL ENTRY
This day again comes the Prosecuting Attorney on
behalf of the State and defendant, John Calandra was
brought into Court, represented by counsel.
Now comes the Jury, conducted into Court by the
Bailiff and returned the following verdicts in writing,
to-wit: ‘We, the Jury being duly impaneled and sworn,
do find the defendant, John Calandra, Not Guilty of Ag-
gravated Arson, as charged in the first count of the in-
dictment.”’ and “We, the Jury do find the defendant, John
Calandra, Not Guilty of Aggravated Murder with Specifica-
tions, (1+2), as charged in the second count of the in-
dictment.”
(Third count dismissed )
Thereupon, the Court informed the defendant of the
verdict of the Jury.
Defendant, John Calandra discharged in this case.
/s/ N. A. Fuerst
Judge
A60
RULING OF UNITED STATES DISTRICT COURT
ON MOTION TO DISMISS ON GROUND OF
PRIOR STATE COURT ACQUITTAL
(Filed October 10, 1979)
CR79-103
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
V.
JAMES T. LICAVOLI, et al.,
Defendants.
MEMORANDUM AND ORDER
THomMas J.
On October 6, 1977, Daniel Greene was killed when a
car parked next to his in a parking lot exploded as he
was entering his car. In connection with that death, several
individuals, including defendants in this action Licavoli,
Cisternino, Carabbia, and Calandra, were indicted on De-
cember 5, 1977 by a state grand jury for aggravated arson;'
1. Ohio Rev. Code §2909.02:
(A) No person, by means of fire or explosion, shal)
knowingly:
(1) Create a substantial risk of serious physical harm
to any person;
(2) Cause ohysical harm to any occupied structure;
(Continued on following page)
A61
[2] aggravated murder, with specifications;* engaging in
organized crime;* conspiracy to commit aggravated murder,
Footnote continued—
(3) Create, through the offer or acceptance of an
agreement for hire or other consideration, a substantial risk
of serious physical harm to any person or of physical harm
to any occupied structure.
(B) Whoever violates this seciion is guilty of ag-
gravated arson, a felony of the first degree.
2. Ohio Rev. Code §2903.01:
(A) No person shall purposely, ard with prior calcu-
lation and design, cause the death of another.
(B) No person shall purposely cause the death of
another while committing or attempting to commit, or while
fleeing immediately after committing or attempting to com-
mit kidnapping, rape, aggravated arson or arson, aggravated
robbery or robbery, aggravated burglary or burglary, or
escape.
(C) Whoever violates this section is guilty of aggra-
vated murder, and shall be punished as provided in section
2929.02 of the Revised Code.
Specifications are defined in Ohio Rev. Code §2929 04(A),
and were prerequisites to the imposition of the death penalty.
Ohio’s death penalty scheme, however, was effectively scrapped
by the Supreme Court in Lockett v. Ohio, 438 U.S. 586 (1978),
and Bell v. Ohio, 438 U.S. 637 (1978).
3. Ohio Rev. Code §2923.04:
(A) No person, with purpose to establish or maintain
a criminal syndicate or to facilitate any of its activities,
shall do any of the following:
(1) Organize or participate in organizing a criminal
syndicate or any of its activities;
(2) Provide material aid to a criminal syndicate or any
of its activities, whether such aid is in the form of money
or other property, or credit;
(3) Manage, supervise, or direct any of the activities
of a criminal syndicate, at any level of responsibility;
(4) Furnish legal, accounting, or other managerial ser-
vices to a criminal syndicate;
(5) Commit, or conspire or attempt to commit, or act
as an accomplice in the commission of, any offense of a
type in which a criminal syndicate engages on a continuing
(Continued on following page)
A62
{3] and to commit aggravated arson.‘ These same in-
Footnote continued—
(6) Commit, or conspire or attempt to commit, or act
as an accomplice in the commission of, any offense of vio-
lence;
(7) Commit, or conspire or attempt to commit, or
act as an accomplice in the commission of bribery in viola-
tion of section 2921.03 of the Revised Code.
(B) Whoever violates this section is guilty of engag-
ing in organized crime, a felony of the first degree.
(C) As used in this section, “criminal syndicate” means
five or more persons collaborating to promote or engage
in any of the following on a continuing basis:
(1) Extortion or coercion in violation of section 2905.11
or 2905.12 of the Revised Code;
(2) Compelling or promoting prostitution, or procur-
ing in violation of section 2907.21, 2907.22, or 2907.23 of
the Revised Code;
(3) Any theft offense as defined in section 2913.01 of
the Revised Code;
(4) Any gambling offense as defined in section 2915.01
of the Revised Code;
(5) Illegal trafficking in drugs of abuse, in intoxi-
cating or spirituous liquor, or in deadly weapons or danger-
ous ordnance as defined in section 2923.11 of the Revised
(6) Lending at usurious interest, and enforcing re-
payment by illegal means;
(7) Any offense, for the purpose of gain.
(D) A criminal syndicate retains its character as
such even though one or more of its members does not know
the identity of one or more other members, and even though
its membership changes from time to time.
4. Ohio Rev. Code §2923.01, which provides in part:
(A) No person, with purpose to commit or to promote
or facilitate the commission of aggravated murder or murder,
kidnapping, compelling prostitution or promoting prostitu-
tion, aggravated arson or arson, aggravated robbery or rob-
bery, aggravated burglary or burglary, or a felony offense
of unauthorized use of a vehicle, corrupting another with
drugs, trafficking in drugs, theft of drugs, or illegal pro-
cessing of drug documents shal! do either of the following:
(1) With another person or persons, plan or aid in
planning the commission of any such offense;
(Continued on following page)
A63
dividuals, except Raymond Ferritto, were indicted by a
federal grand jury [4] on January 6, 1978 for conspiring
to violate 18 U.S.C. §1962(c) in violation of 18 U.S.C.
§1962(d).°
On March 7, 1978, another group of individuals, in-
cluding defendants in this action Lanci, Ciarcia, and Li-
beratore, were indicted by a state grand jury for ag-
gravated [5] murder, with specifications, aggravated arson,
and engaging in organized crime, also in connection with
the death of Daniel Greene. In March 1978, a complaint
charging defendant Lanci with a violation of 18 U.S.C.
§1962(d) was issued by a federal magistrate. Although a
preliminary hearing was held on March 7, 1978 and de-
fendant Lanci was bound over to the grand jury, he was
not indicted until the present indictment was handed down
in May 1979.
Defendants Licavoli, Cisternino, and Carabbia were
tried on the state charges in February through May 1978.
The state court had earlier dismissed both conspiracy
charges against defendants Licavoli, Cisternino, Carabbia,
and Calandra upon a motion by the state. Defendant
Footnote continued—
(2) Agree with another person or persons that one or
more of them will engage in conduct which facilitates the
commission of any such offense.
5. These statutes are part of a group of statutes that are
collectively entitled “Racketeer Influenced and Corrupt Organi-
zations,” commonly referred to by their acronym, RICO. ey
provide: /
(c) It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or the ac-
tivities of which affect, interstate or foreign commerce, to
conduct or Participate, directly or indirectly, in the conduct
of such en s affairs a pattern of racketeering
activity or co of unlawful
(d) It shall be unlawful for any person to to
violate any of the provisions of subsections (a), (b), or
(c) of this section.
A64
Licavoli was acquitted of all other charges; defendants
Cisternino and Carabbia were acquitted of engaging in
organized crime and of the second specification under the
aggravated murder count ‘that the murder was committed
for hire), but were convicted of aggravated arson, aggra-
vated murder, and of the first specification (that the mur-
der was committed in the course of committing aggravated
arson).
Defendants Calandra, Ciarcia, and Lanci were tried
in state court in June, July and August 1978." The trial
judge [6] ordered a judgment of acquittal on the organized
crime charge. Defendant Calandra was acquitted of the
other charges. Defendants Ciarcia and Lanci were con-
victed of aggravated murder, but acquitted of the specifi-
cations and of aggravated arson.
The federal indictment was voluntarily dismissed by
the United States on September 7, 1978. The dismissal
occurred during the pretrial stage of the case but just
shortly before the scheduled trial date.
On May 3, 1979, the present indictment was handed
down charging defendants with a conspiracy to violate 18
U.S.C. §1962(c), in violation of 18 U.S.C. §1962(d); a con-
spiracy to violate 18 U.S.C. §201(b) (3), in violation of 18
U.S.C. §371;’ [7] and two violations of 18 U.S.C. §201(b)
6. Defendant Calandra was ordered severed from the trial
of defendants Licavoli, Carabbia and Cisternino on February 21,
1978 apparently because of illness. Defendant Liberatore has
not yet been tried on the state charges.
7. Section 371 provides:
purpose, and
the object of the conspiracy, shall
than $10,000 or imprisoned not more than five ycars, or
(Continued on following page)
A65
(3). All the charges directly or indirectly grow out of
the same facts that formed the basis for the state charges.
Defendants Licavoli, Calandra, Lanci, Cisternino,
Carabbia, and Ciarcia have filed motions to dismiss the in-
dictment on several grounds. Because of a defendant's
right to immediately appeal an adverse ruling on a double
jeopardy claim, see Abney v. United States, 431 U.S. 651
(1977), the court proposed to rule first on defendants’
claim of double jeopardy (also called res judicata or col-
lateral estoppel). Other related arguments in support
of the motions to dismiss the indictment have been made,
however, and these too will now be considered by the
court. They are: (1) the government's Petite policy has
been violated; (2) the indictment is the result of a bad
faith investigation and prosecution; and (3) 18 U.S.C.
$1962 is an assimilative statute that precludes conviction
after prior acquittal on charges under the assimilated state
law. The court will deal with each contention in turn.
Footnote continued—
If, however, the offense, the commission of which is
the object cf the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the maximum
punishment provided for such misdemeanor.
Section 201(b) (3) provides:
Whoever, directly or indirectly, corruptly gives, offers or
promises anything of value to any public official or person
who has been selected to be a public official, or offers or
promises any public official or any person who has been
selected to a public official to give anything of value
to any other person or entity, with intent -
A66
[8] 1.
Double Jeopardy
Defendants claim that this prosecution is barred by the
double jeopardy clause of the fifth amendment to the
United States Constitution because they have previously
been tried in state court on similar charges arising out of
the same set of facts that form the basis for the federal
prosecution, and there was extensive participation in the
state prosecution by federal authorities. Although the
arguments differ somewhat from defendant to defendant,
the court will treat the issue generally, dealing with
specific arguments only when they raise separate issues,
Several defendants’ contentions notwithstanding, this
court finds it clear that the fifth amendment does not
preclude prosecution in a federal court after a defendant
has stood trial in state court for the same acts:*
[9] In Bartkus v. Illinois, 359 U.S. 121, and Abbate
v. United States, 359 U.S. 187, this Court reaffirmed
8. The charges against defendants under state law are not
identical to those under federal law. For «xample, the defendants
were never charged in state court with bribery of a federal
employee, although apparently the state introduced the alleged
incidents of bribery as part of its proof of the other charges.
For this additional reason, the argument that the bribery and
conspiracy to bribe counts are barred by the double jeopardy
clause lacks foundation.
Likewise, the elements that must be proved under the RICO
count differ from the elements under Ohio's “organized crime”
statute. For example, the definitions of “criminal syndicate”
and “enterprise” engaged in a “pattern of racketeering activity”
contain some common but some different elements, and under
RICO a nexus with interstate commerce must be shown. Al-
though both statutes may arguably be aimed at “organized crime”
in the popular sense of the term, as a legal matter they are not
coextensive nor does one subsume the other. Thus, even aside
from the dual sovereignty doctrine, defendants have no‘. pre-
viously been charged with the same offense. See United States
v. Johnson, 516 F.2d 209 (8th Cir.), cert. denied, 423 U.S. 859
(1975)
A67
the well-established principle that a federal prosecu-
tion does not bar a subsequent state prosecution of the
same person for the same acts, and a state prosecution
does not bar a federal one. The basis for this doctrine
is that prosecutions under the laws of separate sov-
ereigns do not, in the language of the Fifth Amend-
ment, “subject [the defendant] for the same offence
to be twice put in jeopardy”:
“An offence, in its legal signification, means the trans-
gression of a law. ... Every citizen of the United
States is also a citizen of a State or territory. He
may be said to owe allegiance to two sovereigns, and
may be liable to punishment for an infraction of the
laws of either. The same act may be an offense or
transgression of the laws of both.... That either or
both may (if they see fit) punish such an offender,
cannot be doubted. Yet it cannot be truly averred that
the offender has been twice punished for the same
offence; but only that by one act he has committed two
offences, for each of which he is justly punishable.”
Moore v. Illinois, 14 How. 13, 19-20.
Bartkus and Abbate rest on the basic structure of
our federal system, in which States and the National
Government are separate political communities. State
and Federal Governments “(derive] power from dif-
ferent sources,” each from the organic law that estab-
lished it. United States v. Lanza, 260 U.S. 377, 382.
Each has the power, inherent in any sovereign, in-
dependently to determine what shall be an offense
against its authority and to punish such offenses, and
in doing so each “is exercising its own sovereignty,
not that of the other.” Ibid. And while the States,
as well as the Federal Government, are su ject to
A68
the overriding requirements of the Federal Constitu-
tion, and the Supremacy Clause gives Congress with-
in its sphere the power to enact laws superseding
conflicting laws of the States, this degree of federal
control over the exercise of state governmental power
does not detract from the fact that it is a State’s own
sovereignty which is the origin of its power.
[10] United States v. Wheeler, 435 U.S. 313, 316-17, 320
(1978) (footnotes omitted). Thus, Bartkus and Abbate,
have not, as some defendants suggest, become suspect.
Accord, Hutul v. United States, 582 F.2d 1155 (7th Cir.
1978), cert. denied, 99 S.Ct. 1222 (1979); United States v.
Johnson, 516 F.2d 209 (8th Cir.), cert. denied, 423 U.S. 859
(1975); Martin v. Rose, 481 F.2d 658 (6th Cir.), cert. de-
nied, 414 U.S. 876 (1973).
Defendants nonetheless claim that when federal au-
thorities participate in and “control” the state litigation,
the state litigation is a federal litigation for the purposes
of the fifth amendment; and the federal government is
precluded from prosecuting the state defendants for the
same acts. Claiming that this argument states an ex-
ception to the rule quoted above, the defendants rely on
language in Bartkus and Abbate.
Bartkus involved a state prosecution for bank robbery
after the defendant had been acquitted of federal bank
robbery charges. In rejecting defendant’s claim that his
fifth amendment rights had been violated, the Court
stated:
The state and federal prosecutions were separately
conducted. It is true that the agent of the Federal
Bureau of Investigation who had conducted the in-
vestigation on behalf of the Federal Government
turned over to the Illinois prosecuting officials all the
evidence he had gathered against the petitioner. Con-
A69
cededly, some of that evidence had been gathered after
acquittal in [11] the federal court. The only other
connection between the two trials is to be found in a
suggestion that the federal sentencing of the accomp-
lices who testified against petitioner in both trials was
purposely continued by the federal court until after
they testified in the state trial. The record establishes
that the prosecution was undertaken by state prose-
cuting officials within their discretionary responsibil-
ity and on the basis of evidence that conduct contrary
to the penal code of Illinois had occurred within their
jurisdiction. It establishes also that federal officials
acted in cooperation with state authorities, as is the
conventional practice between the two sets of prosecu-
tors throughout the country. It does not support the
claim that the State of Illinois in bringing its prose-
cution was merely a tool of the federal authorities, who
thereby avoided the prohibition of the Fifth Amend-
ment against a retrial of a federal prosecution after
an acquittal. It does not sustain a conclusion that the
state prosecution was a sham and a cover for a federal
prosecution, and thereby in essential fact another fed-
eral prosecution.
359 U.S. at 122-24 (footnote omitted).”
plains the in the text and the Court's con-
clusion that,
[sJince the new was by Illinois, and not by
prosecution
Federal Government, the claim of unconstitutionali
che Federal Governeeemt. voces Cimen of te Beurteaate
Amendment.
A70
In Abbate the defendants pleaded guilty to state
charges of conspiring to destroy certain communication fa-
cilities and were subsequently convicted of federal charges
arising out of the same acts. The Court held that the
defendants’ [12] fifth amendment rights had not been vio-
lated, but stated in a footnote:
The circumstances of this case do not require us to con-
sider the suggestion in the Government’s brief that “no
State prosecution can preclude the federal government
from enforcing federal law.” For example, there is
nothing in this record to indicate any federal participa-
tion in the Illinois prosecution.
359 U.S. at 190 n. 4.
Assuming the language of Bartkus and Abbate does
state an exception to the general principle that a prior state
prosecution does not bar a subsequent federal prosecution
against the same defendants for the same acts,'® the court
cannot agree that the state case should be considered a
federal prosecution for the purpose of applying the dual
sovereignty rule."
[13] First, the bringing of the state prosecution cannot
be said to be of the federal government’s doing. The state
10. It is worth noting that the language of Bartkus and
Abbate relied on by defendants is never mentioned in Wheeler,
despite the fact that the Court discussed at some length the
proposition that “(t]he ‘dual sovereignty’ concept does not apply
.. im every instance where successive cases are brought by
nominally different prosecuting entities.” 435 U.S. at 318. The
issue was present in Wheeler to the same degree as it was in
Abbate, yet it was never
11. Defendant Lanci filed a motion requesting this court
to review the entire transcript of the state proceedings prior to
ruling on his motion to dismiss the indictment on the ground of
double jeopardy. This court finds it wo do so. For
Tt , 5, on the double jeopardy . it will be
that the f ] authorities’ participation in the state
case was as the defendants described it.
A7l
charges brought against the defendants were serious, in-
cluding aggravated murder and aggravated arson. Cer-
tainly, when the state believes acts of this nature have
taken place, it has a keen interest in the enforcement of
its criminal statutes to punish such conduct. Any sug-
gestion that the State of Ohio “in bringing its prosecution
was merely a tool of the federal authorities” must be re-
jected: “[T]he prosecution was undertaken by state
prosecuting officials within their discretionary responsi-
bility and on the basis of evidence that conduct contrary
to the penal code of [Ohio] had occurred within their
jurisdiction.” Bartkus v. Illinois, 359 U.S. at 123. There
is no evidence or logic to support the notion that, but
for the federal government’s interest in the matter, the
state prosecution would not have been brought.
The existence of federal-state cooperation does not
change this conclusion or establish that the conducting,
rather than the bringing, of the state prosecution was such
that the federal government should be bound by the result.
Bartkus itself makes clear that the fact that state au-
thorities are supplied evidence by federal authorities, even
when some of that evidence is gathered by the federal
[14] authorities after an acquittal of federal charges, does
not make the state prosecution federal. Nor does the fact
of cooperation between federal and state prosecuting of-
ficials alter the result. Other courts have concluded that
cooperation between federal and state investigating or
prosecuting officials does not affect the application of the
dual sovereignty rule. United States v. Johnson, 516 F.2d
209 (8th Cir.), cert. denied, 423 U.S. 859 (1975); United
States v. Richardson, 580 F.2d 946 (9th Cir. 1978), cert.
denied, 99 S.Ct. 835 (1979).
The record of this case to date reveals that federal
agencies, particularly the FBI, apparently had an on-going
A72
investigation of several individuals connected with the case
including Daniel Greene and some of the defendants. It
is not surprising then that the federal government would
be in possession of evidence relevant to the state charges
and that federal agents would be called to testify at the
state trial. The fact that the state made use of this
evidence does not establish that its prosecution was simply
a sham or a cover for a federal prosecution.
The defendants, notably Cisternino and Carabbia, point
to numerous instances of alleged misconduct on the part
of federal agents, particularly in their invocation of a
privilege when testifying at trial. They strenuously argue
that they [15] were hampered in their cross-examination
and the presentation of their defenses because several
federal agents refused to answer questions on the ground
that to do so was beyond their authorization. If defen-
dants’ rights were prejudiced by the state court’s rulings
on the question of privilege, that is a matter for the state
appellate courts to rectify; it does not make the federal
government a party to the state prosecution. Not in-
frequently courts must rule on questions of privilege and
the scope of a criminal defendant’s rights under the con-
frontation clause. The fact that the state court correctly
or incorrectly upholds the claim of privilege does not make
the person asserting it privy to the litgation.
Accepting as true for the purpose of ruling on this
motion that the federal government’s involvement in the
state litigation was as the defendants characterize it, the
court finds that these circumstances “do [ ] not sustain a
conclusion that the state prosecution was a sham and a
cover for a federal prosecution and thereby in essential
fact another federal prosecution.” Bartkus v. Illinois, 359
U.S. at 124.
AT73
Defendants also contend that the federal government
is collaterally estopped from litigating issues that were
determined in the state litigation, citing Ashe v. Swenson,
397 U.S. 436 (1970). That case, however, makes clear that
the principle of collateral estoppel “means simply that
when [16] an issue of ultimate fact has once been deter-
mined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future
lawsuit.” Id. at 443. (Emphasis added.) Because, as the
court has held above, the United States was not a party
or privy to the state litigation, the principles of collateral
estoppel do not preclude it from litigating issues litigated
in the state case. Martin v. Rose, 481 F.2d 658 (6th Cir.),
cert. denied, 414 U.S. 876 (1973).
There is also some suggestion by several defendants
that the fact that the federal government voluntarily dis-
missed the first federal indictment somehow affects the
double jeopardy issue. Of course, the prior indictment was
dismissed before a jury was sworn or evidence in the case-
in-chief taken, and therefore the defendants were never
in jeopardy of those charges. E.g., United States v. Martin
Linen Supply Co., 430 U.S. 564 (1977).
For the reasons stated, the double jeopardy clause of
the fifth amendment does not bar the bringing of this ac-
tion. Defendants’ motion to dismiss the indictment on that
ground is therefore denied.
I.
Defendant Licavoli argues that this prosecution is
brought in violation of the government’s policy against
successive federal and state prosecutions for the same
acts, commonly [17] known as the Petite policy. This
policy, adopted in response to Petite v. United States, 361
A74
U.S. 529 (1960), provides that the authorization of the At-
torney General’s office for a federal prosecution after a
state court trial for the same acts should be obtained
and only when there are “compelling federal interests”
involved.
Assuming the Petite policy has been violated by the
bringing of this action,’* there is nevertheless no basis
for quashing the indictment. The Sixth Circuit has held
that the Petite policy is an internal regulatory device
with which the defendant has no right to demand and
enforce compliance. United States v. Frederick, 583 F.2d
273 (6th Cir. 1978). This holding is in accord with the
holdings of numerous other courts. E.g., United States
v. Musgrove, 581 F.2d 406 (4th Cir. 1978); United States
vw. Fritz, 580 F.2d 3
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