# Petition — Calandra v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1340%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1252 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1340%3A1. Public record. Not legal advice.