Petition — LICAVOLI v. UNITED STATES (Nos. 83-1657, 83-1573, 83-1801)

83-165% [rr eee]

APR 9g 984

No.

ALEXANDER L. STEVAS.

SR ye

In the Supreme Court of the United States

October Term, 1983

JAMES T. LICAVOLI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

JAMES R. WILLIS

(Counsel of Record)

Suite 610, Bond Court Building

13090 East Ninth Street

Cleveland, Ohio 44114

(216) 523-1100

Attorney for Petitioner

Rex E. Lee

Solicitor General

United States Justice Department

Washington, D.C. 20044

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

I.

Il.

QUESTIONS PRESENTED

Whether due process and basic fairness were griev-

ously offended when the government was unneces-

sarily permitted to affirmatively and dramatically

prove: (A) that in issuing the warrant authorizing

the monitoring of conversations a Federal Judge, the

Attorney General and the FBI were fully convinced

a named individual would be personally participat-

ing in conversations in his home involving serious

and violent crimes. And (B) that the Attorney

General had been fully convinced by the FBI and

others that certain prosecution witnesses, as well as,

their families, not only deserved but were actually

entitled to be protected so as to prevent this indi-

vidual from visiting physical harm upon them.

Does a trial court err, or abuse its discretion, when

it fails to grant the accused a severance in a situation

where it was clearly evident compelling prejudice

would be visited on him that would outweigh all

interest in judicial economy and other relevant con-

siderations.

Whether the defendant Licavoli’s right of confronta-

tion and hearsay rule were violated by the admis-

sion of considerable evidence showing the contents

of various conversations had by a non-testifying

declarant (a co-defendant at the trial) with the wit-

nesses Aratari, Guiles and Lanci, during which

Licavoli was repeatedly credited with ordering the

murder of Danny Greene.

Whether in a multiple defendant RICO conspiracy

prosecution it is proper to charge the jury that a

defendant could be found to have committed the

Iq

charged predicated acts of (a) conspiracy to murder

a particular individual and (b) the murder of this

same individual; as well as, the RICO conspiracy

itself on an aider and abettor theory.

Whether a charge that exposes an accused to being

convicted by less than the unanimous concurrence

of all the jurors violates the sixth amendment right

to a unanimous verdict.

Whether the evidence in a RICO conspiracy prose-

cution that at best only shows a particular defendant

committed only one of the alleged predicate acts, or

offenses, is legally sufficient to support a verdict

finding such guilty as charged.

A. Whether “conspiracy to murder” can properly

be regarded as a predicate act in a RICO con-

spiracy prosecution.

B. Whether the two predicate acts requirement of

1962 (d) can be satisfied by proof of the State

offenses of conspiracy to murder and murder of

a particular person, where under State law upon

conviction of the murder charge the conspiracy

offense merges therewith.

C. Whether the requirement, under 18 U.S.C.

§1961 (1) (A), that a State offense must be

“chargeable” and “punishable” can be satisfied

by proof of offenses that cannot be separately

punished.

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) Anthomy Liberatore

(2) John Calandra

(3) Pasquale Cisternino

(4) Ronald Carabbia

Iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... te AER aD I

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OPINIONS OF THE COURTS BEI OW ........................ 1

JURISDICTIONAL STATEMENT. ....0..0..2...20.-ccecccceceeseeee- 1

STATUTORY PROVISIONS WHICH THE CASE IN-

SMIIIED. cccoosouhonp-esecedtabadenidbaccrnicsacepurncboosenehuocsecsundliceiaceasos 1

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REASONS FOR GRANTING THE WRIT ...................... 6

ARGUMENT I:

Fundamental due process and basic fairness were

grievously offended when the government was un-

necessarily permitted to affirmatively and dramati-

cally prove: (A) that in issuing the warrant au-

thorizing the monitoring of conversations that

would take place inside Licavoli’s home, a Federal

Judge, the Attorney General and the FBI were fuily

convinced Licavoli would personally be participat-

ing in conversations involving serious and violent

crimes. And (B) that the Attorney General had

been fully convinced by the FBI and others that

certain of its witnesses, as well as their families, not

only deserved but were actually entitled to be pro-

tected so as to prevent Licavoli from visiting phys-

A III st dnichetidecracecntecennddenaienniinenubiainitesiiede 9

ARGUMENT II:

Where it was most evident compelling prejudice

would be visited, as it was here, on an accused that

would outweigh all interest in judicial economy and

other relevant considerations, a trial court errs, or

abuses its discretion, when it fails to grant the ac-

cused victimized thereby a severance ........................ 10-11

ARGUMENT III:

The admission of considerable evidence showing the

contents of various conversations had by a non-

testifying declarant (a co-defendant at the trial)

with the witnesses Aratari, Guiles and Lanci, dur-

ing which Licavoli was credited with ordering the

murder of Danny Greene, violated Licavoli’s right

of confrontation and the Hearsay Rule .................... 13-14

A. Where evidence originating with a non-testify-

ing declarant is offered against an accused, the

prosecution must demonstrate such evidence

has an independent “indicia of reliability” ....... 16

B. The admission of extrajudicial statements im-

puted by prosecution witnesses to a non-testify-

ing declarant, which statements were “crucial”

to the prosecution and “devastating” to the

defense, constitutes a violation of the right of

I hinteicteeicenisncincsenan 18

ARGUMENT IV:

In a multiple defendant RICO conspiracy prosecu-

tion it is improper to charge the jury that a defen-

dant could be found to have committed the charged

predicated acts of (a) conspiracy to murder a par-

ticular individual and (b) the murder of this same

individual, as well as, the RICO conspiracy itself

on an aider and abettor theory —.....0... 2.2... cceeeeeeeee 19

ARGUMENT V:

A charge that exposes an accused to being convicted

by less than the unanimous concurrence of all the

jurors violates the Sixth Amendment rights of the

accused as implemented by Rule 31 (A) Federal

Rules of Criminal Procedure 0..0.0..0.........0...ccccesesseeeeees 21

ARGUMENT VI:

Where the evidence in a RICO conspiracy prosecu-

tion at best shows an accused committed only one

of the alleged predicate acts, or offenses, such

evidence would be legally insufficient to support a

EERE ICSE VERE MONT Re eae CECE

A. “Conspiracy to murder” cannot properly be

regarded as a predicate act in a RICO con-

Ce SII fecscccitesccehiciscesnsescttnoeemnennitenineincess

B. Where the State law mandates upon conviction

a merger of the conspiracy to murder charge

with the substantive murder offense, the gov-

ernment does not, by proving both the con-

spiracy to murder and the murder itself, es-

tablish two’ predicate acts sufficient to satisfy

the requirements of 18 U.S.C. §1962 (dq) ............

C. The requirement under 18 U.S.C. 1961 (1) (A)

that a State offense must be “chargeable and

punishable by imprisonment for more than

one year” to qualify as a predicate act means

chargeable and punishable at the time of the

indictment, and it means separately punishable

from any other related or interrelated offense

SN soca th cececllibecirigstiieipnheceiciin

APPENDIX:

Printed under separate cover

22

23

26

28

VII

TABLE OF AUTHORITIES

Cases

California v. Green, 399 U.S. 149 (1970) 00.0. 14,17

Dutton v. Evans, 400 U.S. 74 (1970) .0....cccce cece 8, 17,18

Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945)... 29

Huntington v. Attrill, 146 U.S. 657, 669-673 (1892) ........ 29

Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975)

in ca neahibaiadtadhdplialaaiadiae ects eben inalatbmatiasinads 19

Lutwak v. United States, 344 U.S. 604 (1953) ...000000...... 14

Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) 7

Nye and Nisson v. United States, 336 U.S. 613 (1949) 19

Park v. Huff, 493 F.2d 923, 931-932 rev’d, 506 F.2d 849

gS | Psa nent anewonee = an

Pinkerton v. United States, 328 U.S. 640 (1946) ........ 8

Shepard v. United States, 290 U.S. 96, 104 (1933) ........ 7

United States v. Bagaric, 706 F.2d 42 (2d Cir. 1983) .... 25

United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982) 6

United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983) 6

United States v. Davis, 576 F.2d 1065, 1068-1071 (3d

i Oe ce 29

United States v. Ford, 324 F.2d 950, at 952-953 (7th

ORO ALO NTO Gd TT 19-20

United States v. Frumento, 563 F.2d 1083, 1097 (3d Cir.

TEE IL RE Ee 29

United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969) 14

United States v. Gipson, 553 F.2d 453 (5th Cir. 1977) .... 22

United States v. Greer, 467 F.2d 1064, at 1070-1071 (7th

Re EN inca otuhaeadataicad Seamioaenale 20

vim

United States v. Hernandez, 591 F.2d 1019 (5th Cir.

BPUIED cantinviininvsntiteesnneiiaipeiaanae aan 23, 28

United States v. Koch, 113 F.2d 982, at 983 (2d Cir

SUT sitssdinisniniteinsnitpnbsbanindincngantiosantianmedenbiadamimaaranmn 19

United States v. Krogstad, 576 F.2d 22, 29 (3d Cir

TID ED sciecsinisiceninsisinsistininctmatictsninitstcacelaiatiiteiaiauenluasiale at iiiliciasel 21

United States v. Lawson, 523 F.2d 804, 806 (5th Cir

1973) ..... a Tih nicscusnianithpieiailgapinetecasamiemanladiadsnnian 16

United States v. Lemm, 680 F.2d 1193 (8th Cir. 1983) 6

United States v. Licavoli, et al., 725 F.2d 1040 (6ih Cir.

TITIIED s:ssncisisicinsisoecsbnhdceieesusiebicieaiaibiaiiacsieisanialiaaniiaga 1, 6, 7, 25, 28

United States v. Mason, 213 U.S. 115 (1909) .. 0.000002... 29, 30

United States v. Peoni, 100 F.2d 401, at 402 (2d Cir.

BI. cqrsisssssntninnnbinscinnstiesniaisiibtanisabaaaiaimainiptaaaahidéaeaaamaa 19

United States v. Phillips, 664 F.2d 971 (5th Cir. 1981)

scdiinasitinicntiiabiiaiiadadiimaitek aaa 23, 27, 28

United States v. Riccobene, 709 F.2d 214 (3d Cir. 1983) 6

United States v. Tropiano, 418 F.2d 1069, at 1083 (3d

CE, SD cccencnssiiessiicsesninestespahiarinnitanianiauaeaatniiaeatianaiabiagtaae 19

United States v. Turkette, 452 U.S. 576 (1981) ............ 6

United States v. Weisman, 624 F.2d 1118, at 1124-1125

(2d Cir. 1980) siihiplinlahaeCeuss aia ipainigiaieaie al 25

United States v. Welch, 656 F.2d 1039 (5th Cir. 1981)

Periodicals and Publications

Tarlow, Vol. VIII, The ate 57 at 58 (March 84)

Statutes and Rules

Federal Rules of Criminal Procedure:

Ns seseseunenssocsceccs 1

I LTT 1, 22

EE CTE 1, 21

Federal Rules of Evidence:

Neen scccscsesnee ee 1, 9, 10

ca cececncersecneseneseccseccscccesessesee 1,14

Ohio Revised Code:

Teen eT esuccssccnsnsonee 23

LES 23

i sacencsnsnsensoncenecs 1, 26

SEE nae

Ne soscccensensorenresiore 1, 26, 27

Teen. s,s esasesencscensveccsnes 1, 20

ns nconmencoecsoonsocccce 1, 20

18 U.S.C. § 371 a 24

nn cscescsscnsrcnecs 1, 23, 24, 28

18 U.S.C. § 1961 (1) (B) (C) ........... 24

i. sssccsescconnecssooccozcns 2

ae) ea ea 21, 23

a cssccssscenscsene 2

EET 1, 24, 26

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

The Petitioner, James T. Licavoli, respectfully prays

that a Writ of Certiorari issue to review the Judgment of

the United States Court of Appeals for the Sixth Circuit,

which judgment became final on January 9, 1984.

OPINION BELOW*

The Opinion of the Court of Appeals (Appendix “B”,

infra, pp. A2-A25) is reported as United States v. Lica-

voli, et al., 725 F.2d 1040 (6th Cir. 1984).

JURISDICTION

The judgment of the Court of Appeals was entered on

January 9, 1984. Upon application by petitioner the time

for seasonably filing this Petition was extended until April

8, 1984 (See Appendix “A”, at Al). The jurisdiction of

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

STATUTORY PROVISIONS WHICH

THE CASE INVOLVES

The relevant statutory provisions involved are: Fed-

eral Rules of Criminal Procedure, Rules 14, 30 and 31(a);

Federal Rules of Evidence, Rules 404 (a) and 801 (d) (2)

(E); Ohio Revised Code §§2923.01 (A) (1) (2), 2923.01 (F)

and 2923.01 (G); 18 U.S.C. §2 (a), 18 U.S.C. §2 (b), 18

U.S.C. §1961 (1) (A) and 18 U.S.C. §1962 (d). (See Ap-

pendix “E”, pp. A73.)

STATEMENT OF THE CASE

I

In the trial of this case the government sought to prove

that James Licavoli, the petitioner, violated 18 U.S.C. §1962

*Whenever reference is made to a page in the transcript of

the proceedings in the trial court, it wil! be designated (Tr. .....).

References to the Joint Appendix filed in the Court of Appeals

are (J. A. ). Reference to the Appendices to this Petition

are noted as Appendix A, B, C, and D, with a page reference

2

(d) by conspiring to violate 18 U.S.C. §1962 (c). As

against Licavoli, the charge was amplified by the very

specific contention that he was conspiratorially involved

in conducting the affairs of an enterprise, as that term is

defined in 18 U.S.C. §1961 (4), through a pattern of rack-

eteering activity—that is, through the commission of two

(2) state offenses: conspiracy to murder and the murder

of one Danny Greene.

Prior to the trial the Court ruled that Licavoli’s ac-

quittals on the bribery charges barred the government

from using any of the bribery evidence against him for

any purpose. However, as is made most clear below, the

Court adamantly refused to separate Licavoli’s trial from

those defendants (i.e., Liberatore and Ciarcia) against

whom the bribery evidence was admissible as proof of

“predicate acts” and as proof of the charged “enterprise”.

It also happened that the considerable bribery evidence

was admitted as proof these bribery charges were com-

mitted in furtherance of the affairs of that enterprise

as charged in the indictment.

Most critical to this cause then is the trial court’s

written response to Licavoli’s post-trial contention that:

The court erred in denying this defendant’s various

objections to the use of his name in connection with

the stolen FBI documents that related solely to the

various acts of bribery charged in this cause against

certain co-defendants. This evidence (which disclosed

in glaring and indelible terms the rather gross fact

that Licavoli had been, and was being, very actively

investigated by the FBI, doubtless as a suspected

criminal) in addition to impermissibly putting his

character in issue, created other powerful negative

inferences that equld in no way be addressed by this

defendant consistent with his right of confrontation

and his entitlement to due process.

3

Here, the trial Judge reasoned, in clear and unambiguous

prose, that:

In developing the proof of bribery with reference to

confidential FBI documents stolen from the FBI files

by Geraldine Rabinowitz and given to defendant

Kenneth Ciarcia, the government called Geraldine

Rabinowitz, a file clerk in the Cleveland office of

the FBI. Shortly after her testimony began, the court

gave this limiting instruction to the jury:

s s s . .

The jury, therefore, will not consider testimony

or evidence received from Geraldine Rabinowitz

as applying to defendants Licavoli, Calandra, Cis-

ternino, or Carabbia. You may proceed Mr.

Poretz.

Tr. at p. 201. It was anticipated that some of her

testimony would refer to Mr. Licavoli. This instruc-

tion, therefore, informed the jury that none of the

testimony or evidence so received from Geraldine

Rabinowitz was to be considered as applying to de-

fendant Licavoli.

Thereupon she mentioned the names “James Licavoli,

Anthony Liberatore, and himself, Kenneth Ciarcia.”

Mr. Ciarcia also told her that Mr. Licavoli went by

the name of “Jack White.”

After checking certain files at the Cleveland FBI

office, she told Mr. Ciarcia there was... “an active

investigation on Mr. Licavoli.”

Upon persistent inquiry of Mr. Ciarcia, she testified,

she eventually obtained copies of several reports on

James Licavoli and turned these over to Mr. Ciarcia.

Subsequently, Mr. Ciarcia said he wanted additional

information on Mr. Licavoli so that there could be a

comparison of numbers on the report. She said that

4

she obtained another report on Mr. Licavoli and gave

it to Mr. Ciarcia.

The references to Mr. Licavoli were an integral part

of Geraldine Rabinowitz’s testimony. Any effort to

separate or delete these Licavoli references would have

impaired if not destroyed the content of her testimony.

Moreover, it would have been impractical, if not im-

possible, for her to attempt, pursuant to instructions,

to substitute the term “another person” in place of

the name James Licavoli. (J. A. 170-172).

This factual background, coupled with the indisputable

finding by the trial court that the use of Licavoli’s name

was such an integral part of the central bribery witness’

evidence its elimination would have “impaired if not

destroyed its content” (Ibid.), makes the position taken

by the Court of Appeals on this point a “cop-out”. Here

reference is made to the absolutely horrible conclusion,

by the Sixth Circuit, that:

[The] testimony regarding the other defendants in

connection with the circumstances of the bribery was

tangential, and overshadowed by the major role in

the events played by Liberatore and Ciarcia. The

slight potential prejudice to defendants Licavoli, Ca-

landra and Cisternino in this case by these tangential

references is outweighed by the judicial and societal

interests in trying all of the defendants together. We

hold that the trial judge did not abuse his discretion

in denying defendants’ motion for severance. (Li-

cavoli, at 1052; Appendix “B”, at pp. A21-A22.)

During the trial Ferritto absolutely refused to testify

and was declared “unavailable” as a witness. This

prompted the Court, despite most vigorous and persistent

objections, to allow the government, under favor of Rule

804 (a) (1), to read a segment of the testimony given

5

by Ferritto during Licavoli’s state murder trial. The

wrongs involved in reading Ferritto’s testimony against

Licavoli were compounded by the fact that testimony given

by Ferritto at other trials in which Licavoli was not a

defendant, was also read to the jury.

The utilization of this procedure was the subject of

other and further Motions for Severance. In so doing,

hearsay and confrontation arguments were punctuated by

the contention that the jury perforce would be confounded

by this evidence and that no instruction could possibly

insure its correct compartmentalization. Also, the point

was made that the defense cross-examination of Ferritto

at the state court trial was not tailored to meet the

“enterprise” aspect for which the government was able

to utilize this evidence (Tr., pp. 1500-1517, 1591-1614).

Other relevant facts show the Court allowed the

government to repeatcdly establish that the monitoring

devices placed in Licavoli’s home were pursuant to court

order and that all of the protected witnesses and their

families, in the opinion of the Attorney General, absolutely

needed to be protected from Licavoli (Tr., pp. 5429-5431).

And, the Court allowed the government to compellingly

demonstrate and, otherwise wilfully insinuate, the nu-

merous documents for which the FBI clerk was bribed

were but a small segment of the investigative files com-

piled over the years on the “criminal” activities of Li-

cavoli. Still other proof showed the list of informers

was specifically sought by the “bribers” so they could

interpret these various “Licavoli” documents. Since this

fact was developed over Licavoli’s protest it emphasizes

the extent to which he was devastated by evidence that

was clearly inadmissible against him.

The fact that none of the bribery evidence would

have been admitted against Licavoli had he been tried

alone aggravates the prejudice he was literally required

to endure. This fact becomes even more manifest in

view of the fact that Liberatore was actually credited

with having told Aratari more than once after Greene’s

death that if they killed the rest of the Irish crew they

would have the town and Licavoli would not know about

it. Obviously, this statement hardly shows Licavoli had

a stake in their ventures.

REASONS FOR GRANTING THE WRIT

The Court most assuredly should review the rulings

made below, first of all because in some respects they

strike at the very heart of an individuai’s right to be con-

victed, if at all, in a fair trial. And, because some of the

critical rulings and interpretations rendered below are in

serious conflict with settled precedents developed in this

court for application in RICO prosecutions.

For starters in this case, despite the precise pronounce-

ments in United States v. Turkette, 452 U.S. 576 (1981),

that a RICO enterprise rec,uires proof of “an entity sep-

arate and apart from the patterns of activity in which it

engages” (Id., 583) that functions “as a continuir.g unit”

(Ibid.), the Court below is convinced that “the enterprise

element, in the light of Turkette has become a fiction. . . .”

And, that “the two predicate offenses are the ‘Enterprise’ ”.

As that court saw it, “[a]ll that is now required is the

commission of two predicate offenses .... No further

indicia of ‘Enterprises’ is now necessary.” Licavoli, 725

F.2d, at 1053; Appendix “B”, at A25.

This ruling obviously conflicts with Turkette. Since

no other circuit has articulated this notion, it puts the

Sixth Circuit in open conflict with United States v. Ricco-

bene, 709 F.2d 214 (3rd Cir. 1983) and United States v.

Cauble, 706 F.2d 1322 (5th Cir. 1983). Also see United

States v. Lemm, 680 F.2d 1193 (8th Cir. 1983) and United

States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982).

7

Also, as various other arguments made below show,

the Petitioner was actually prevented from having a fair

trial because it was much easier to subordinate due process

for him to “competing societal goals of efficient and speedy

trials” (Licavoli, 725 F 2d at 1051, Appendix “B”, at A21).

The argument is made below (Number I) that there

is nO way any jury could properly accept all the evidence

in this case that was so limited and qualified by countless

instructions for any light it might shed on the narrow

purposes for which it was admitted and reject its grossly

prejudicial impact in all other areas. For our part, the

metaphysical acumen capable of making discriminations

so subtle and sophisticated, a feat beyond the compass

of ordinary minds, simply cannot be imputed to the jury

that convicted Licavoli. See Shepard v. United States,

290 U.S. 96, 104 (1933).

This is particularly so here because the constantly

reverberating clang of the impermissable uses to which

this evidence may have been put is more than sufficient

to drown out the far weaker sounds made by the effect

of the Court’s special instructions. Stated still another

way, if there are limits on the powers of jurors—or even

Judges and the rest of us—to keep interconnected thoughts

separated, then those limits surely were exceeded here.

Since any authorized use of this evidence, particularly the

bribery evidence, shaded so closely and uncontrollably into

forbidden areas it is a safe assumption that the Court

simply asked too much of these jurors when he asked them

to perform, what was said to be, “a mental gymnastic

which is beyond, not only [a jury’s] powers, but anybody’s

else.” Nash v. United States, 54 F.2d 1006, 1007 (2d Cir.

1932).

Since some of the evidence, particularly the bribery

evidence, was not properly admissible against Licavoli for

any purpose, the argument is made (No. II) that the Court

abused its discretion in failing to sever Licavoli for trial

from those Defendants against whom the bribery evidence

was most essential. The prejudice to Licavoli resulted,

first of all from the spillover, or slop over, effect caused

by this bribery evidence. And, it resulted, not only in

portraying him as a sinister person, but in enhancing the

risk (since his name was indeed centralized throughout

the bribed for documents) that the government’s enter-

prise theory actually gained still another unentitled benefit

in its wake.

In the next argument (No. III), the points hopefully

made show there was insufficient independent proof of

conspiracy as between Licavoli and Liberatore to justify

the admission of certain testimony under Rule 801 (d) (2)

(E). It is further argued that Licavoli’s confrontation

rights were not satisfied. Dutton v. Evans, 400 U.S. 74

(1970).

The attempt is then made (No. IV) to show there are

critical and discernible distinctions that must be made as

between a conspirator and an aider and abettor. The

upshot of our analysis is that while Pinkerton v. United

States, 328 U.S. 640 (1946), makes all conspirators liable

for crimes committed in furtherance of such conspiracy,

an agreement to violate the law remains the gist, or grava-

man, of the offense and is an indispensable element. Since

one can be an aider and abettor and not a conspirator, the

verdict cannot survive the neaningful possibility that the

jury reasoned Licavoli was only an aider and abettor and

need not be a conspirator.

Other arguments (Nos. V and VI) raise the point

that under the instructions given the jury could return a

guilty verdict against Licavoli that lacked the unanimous

concurrence of all the jurors as to any specific theory.

And, that the evidence is insufficient for a number of rea-

sons to support a finding that Licavoli was guilty of the

charged offense.

9

I. Fundamental Due Process and Basic Fairness

Were Grievously Offended When the Government

Was Unnecessarily Permitted to Affirmatively

and Dramatically Prove: (A) That in Issuing the

Warrant Authorizing the Monitoring of Conversa-

tions That Would Take Place Inside Licavoli’s

Home, a Federal Judge, the Attorney General and

the FBI Were Fully Convinced Licavoli Would Per-

sonally Be Participating in Conversations Involv-

ing Serious and Violent Crimes. And (B) That

the Attorney General Had Been Fully Convinced

by the FBI and Others That Certain of Its Wit-

nesses, As Well As Their Families, Not Only De-

served but Were Actually Entitled to Be Protected

So As to Prevent Licavoli From Visiting Physical

Harm Upon Them.

(A)

Here, we start with the idea that Licavoli most as-

suredly did not put his character in issue as is required

by Rule 404 (a), Federal Rules of Evidence, as condition

precedent to an affirmative attack being made on it. Yet,

it can hardly be denied the impact of the evidence being

centralized had the unavoidable effect of portraying Lica-

voli to the jury as an out and out public menace for whom

guilt was such a foregone conclusion in the eyes of our

government that the trial itself was a mere formality.

Thus it is most significant the various monitoring

agents were able to emphasize with the court’s blessings,

they were acting under Court order and that one of the

limitations in the order restricted them to only monitoring

these conversations that related to “criminal activity.”

(Tr., pp. 6018, 6033-6034).

In arguing against the admission of any of this evi-

dence, the following cogent points were made by the de-

fense: the court order was not under challenge before the

10

jury, hence, no need existed to show what was done had

the prior approval of the court. And, just as surely there

was absolutely no need to tell the jury these agents were

to only listen to conversations related to “criminal activi-

ties”. This indication carried with it the unavoidable and

irrepressible message that these trained agents regarded

anything actually heard as relating to “criminal activities”

(Id., 6023). Also, the contention made then, and now, is

that the government’s resort to this egregious procedure

was both deliberate and unnecessary (Id., 6024). Finally,

in the midst of all this, not only was Rule 404 specifically

called to the court’s attention (Id., 6028), the court was in-

formed again that counsel should not be held responsible

for the questions asked by other counsel that emphasized

the wrong this debacle visited upon Licavoli (Id., 6029-

6030).

(B)

More than once the Court charged the jury that the

U.S. Attorney General had in fact made the critical deter-

mination that the mere willingness of certain witnesses to

testify against Licavoli “would place his life or person or

the life or person of a member of his family or household in

jeopardy” (See Tr., 5429-5431). The pernicious inference

that quite predictably emerged from these instructions

translates into a sort of judicial vouching for the integrity

of the dministration’s decision to grant the annuities,

and other meaningful considerations (including in some

instances absolution) that were given these admitted crim-

inals.

All this makes it most clear Licavoli was victimized

by this unfortunate tactic as wall.

II. Where It Was Most Evident Compelling Preju-

dice Would Be Visited, As It Was Here, on an

Accused That Would Outweigh All Interest in

Judicial Economy and Other Relevant Consid-

11

erations, a Trial Court Errs, or Abuses Its Dis-

cretion, When It Fails to Grant the Accused Vic-

timized Thereby a Severance.

Here we refer to the prejudicial spillover that per-

force resulted from evidence relating to various crimes

and acts not charged against this defendant and from

other evidence only admissible against other defendants.

Also, there was unavoidable confusion of the evidence

admissible against Licavoli with that admitted only as

against other defendants.

It is also contended that the joint trial of Licavoli on

the RICO conspiracy charge based on only the predicate

acts involving (1) conspiracy to murder and (2) the mur-

der of Danny Greene, along with co-defendants Libera-

tore and Ciarcia, against whom certain additional predi-

cate acts (i.e., the bribery charges) were also litigated, was

grievously predjudicial to Licavoli. Not the least of the

reasons why this is so is because necessarily there was

such a confusion of charges, evidence and defendants as

to make the proper compartmentalization thereof far too

risky a proposition.

Here, it is most relevant that even before this trial

commenced, the joint trial of these defendants (most of

whom had been acquitted on the Bribery charges that

would be centralized in the trial) clearly foreshadowed

that there would be confusion of the evidence and result-

ing prejudice particularly to Licavoli—one of those who

had been acquitted. This fact the trial court fully recog-

nized.

The above described circumstances were aggravated

not only by virtue of Ferritto’s refusal to testify and the

debacle that developed as a consequence, but also by the

fact that Licavoli’s name was at the fulcrum of the various

requests made of the “bribed” FBI clerk for the docu-

ments that were in fact stolen by her.

12

At least this much is certain, it cannot be denied that

had Licavoli been tried without the bribery defendants,

the government would not have been the beneficiary of

the numerous unentitled, devastating inferences that re-

sulted from the “enterprise” theory submitted to the jury

over Licavoli’s objections. This theory, in our judgment,

unavoidably made Licavoli privy to these acts of Bribery

despite his having been prevoiusly acquitted of those of-

fenses. This idea becomes even more persuasive in the

light of the court’s charge which indicated one of the ele-

ments the government was required to prove was that “two

or more of the persons named as defendants or co-con-

spirators .. . conspired together to violate 18 U.S.C. §1962

(c) by being associated with an enterprise engaged in ac-

tivities ... the purpose of which was to control the crime

activities in various cities in the Northern District of

Ohio by means of bribery and other activities.” (Tr., 24)

(Emphasis supplied).

Given the aforementioned charge, especially when read

in the light of other instructions given by the Court, the

conclusion is inescapable that the jury may very well have

predicated its findings as to the existence of the “enter-

prise” to some significant degree on the overwhelming

proof of bribery involving documents showing Licavoli was

being vigorously, and unrelentingly, investigated by the

FBI. To the extent that this happened, the conclusion

that Licavoli was victimized by the charge itself, the brib-

ery evidence and its relationship to the “enterprise” is in-

escapable.

Also, in light of its dubious probative value (we con-

tend it lacked any), the Court’s admission of evidence show-

ing Licavoli was the person whose investigative reports

were sought, stolen and “sold” to certain of the alleged co-

conspirators likewise visited irreparable harm to Lica-

voli’s quest for due process and a fair trial. These flaws

also had the pernicious effect of putting Licavoli’s char-

13

acter in evidence in a way that could not even possibly

be addressed by the defense.

Our critical assailment also includes the Court’s re-

fusal to eliminate from the evidence testimony showing

that what those defendants charged with the predicate acts

of Bribery (i.e., Liberatore and Ciarcia) had sought from

the FBI clerk were recent criminal investigative reports

concerning James Licavoli. This circumstance related to,

and formed the basis for the unavoidable inference that

the considerable quantity of materials that were in fact

stolen were document accounts of criminal activities in-

volving Licavoli. If not that, we certainly know, that all

the documents were offered as investigative reports that

could be related to Licavoli. This point applies directly to

the informer lists, which were, according to the evidence,

purposefully sought as an aid to interpreting the various

sets of Licavoli documents in which informants were re-

ferred to by code numbers.

Predictably the government will surely make the facile

argument that any danger of possible misuse by the jury,

or any unentitled advantage the government could have

otherwise gained at Licavoli’s expense, were totally elim-

inated by the Judge’s various charges. For our part, how-

ever, the Bribery evidence could only have overwhelmed

the judgment of the jury. If not that, it surely made it

extremely unlikely they considered Licavoli’s guilt or in-

nocence dispassionately and in isolation from such evi-

dence and its pervading impacts—as they should have.

Even this is not all, and this is the real point here,

the conclusion is inescapable that the jurors relied on

the Bribery evidence in declaring Liberatore and Licavoli

were co-conspirators.

III. The Admission of Considerable Evidence Showing

the Contents of Various Conversations Had by

a Non-Testifying Declarant (a Co-Defendant at

14

the Trial) With the Witnesses Aratari, Guiles and

Lanci, During Which Licavoli Was Credited With

Ordering the Murder of Danny Greene, Violated

Licavoli’s Right of Confrontation and the Hear-

say Rule.

We concede that under the co-conspiracy exception

to the hearsay rule testimony as to extrajudicial statements

may be admitted if it is established, by evidence other

than such hearsay, that the accused (here, Licavoli) was

involved in a conspiracy with the declarant (in this case

Liberatore) and that the statements were made in fur-

therance of such conspiracy. United States v. Geaney,

417 F.2d 1116 (2d Cir. 1969). Also see Federal Rules of

Evidence, Rule 801 (d) (2) (E). This rule, which cer-

tainly is not of recent vintage (Lutwak v. United States,

344 U.S. 604 [1953]), does not exist as though oblivious to

values implicit in the “accused’s right to be confronted

by the witnesses against him.”

The fact that these values must be reckoned with in

a meaningful way was made most clear in California v.

Green, 399 U.S. 149 (1970). Here this court noted that

“more than once [it had] found a violation of confronta-

tion values even though the statements in issue were

admitted under an arguably recognized hearsay excep-

tion” (Id., 155).

At this juncture, we are here concerned with the

various statements supposedly made by Liberatore to

Aratari and Guiles, concerning Licavoli, some of which

were commented on in their presence by Lanci and further

embellished. Illustrative of the testimony being referred

to and its tenor are the following selected segments of

Aratari’s testimony dealing with some of his asserted

conversations with Liberatore:

(1) “He [Licavoli] has two guys on him now, and

they need a backup team. Mr. Licavoli wants

(2)

(3)

(4)

(5)

(6)

(7)

(8)

15

it done now, wants Greene’s job. . . [done] now

and they are taking too much time” (Tr., 3118).

“Mr. Liberatore says if you get Danny Greene

you'll have anything in this town you want. My

son, you and I will take over this town and Jack

White (Licavoli) won’t even know about it”

(Ibid.).

“Well, at that time, Mr. Lanci, Tony Liberatore—

I don’t know how to explain this—but through the

orders of Jack White, this is what he told me—”

(Tr., 3157).

“I was already looking for the Irish crew when

they sent me up for—Mr. Liberatore ... they took

me off the other case and put me on the Greene

case, because .. . he [Liberatore] Mr. Licavoli

wants this done right away. It can’t wait.” (Tr.,

3167).

“Mr. Liberatore told me Danny Greene is a pretty

strong person in this town. He’s got control of

the West Side. He’s got the gambling. He’s got

the barbut, the vending machines. He’s got the

music, the prostitution, dope. And he’s even into

unions. Jack White [Licavoli] is very upset. Jack

White is afraid of him, and Jack White wants him

out of the way” (Tr., 3199).

“Liberatore told me the reason they want—

Licavoli, Liberatore—want Danny Greene’s son

out of the way, because if he goes there is going

to be a vendetta” (Tr., 3202).

“... Mr. White wants him out of the way now”

(Tr., 3216).

“.. [I told Vie that Licavoli is] the number one

man, and .. . Liberatore told myself and Vic

he was second in command” (Tr., 3217).

16

(9) “Mr. Liberatore says well we want you off all

them people and Mr. White wants you to get

on Danny Greene with the other two” (Tr., 3263).

(10) “The same kind of conversation ... [Took place

at a third meeting at the Donut Shop]. Mr.

White’s getting anxious, you know, can you guys

get ... [Greene]” (Tr., 3275).

(11) “... Mr. Liberatore says White is pleased, we’re

all pleased. Now we got to the other guys,

meaning Keith Ritson, O’Donnell, McTaggert and

Danny Greene’s son” (Tr., 3382).

(12) “Well, that discussion was about everybody on

the hill [i.e. Little Italy] was well pleased, es-

pecially Mr. White” (Tr., 3385).

All of the above quotes come directly from Aratari’s

direct examination, and there were others. It should be

further understood that some of these supposed conversa-

tions took place in the presence of either Lanci or Guiles—

or both of them. Thus their testimony as to these various

conversations added further weight to the adverse effect

of this evidence.

In our judgment, there was simply no evidence from

which the Court (Tr., 3108-3109) or the jury could ever

conclude that these various statements, supposedly made

by Liberatore to Aratari, were made “with the knowledge

and on behalf of” Licavoli. See United States v. Lawson,

523 F.2d 804, 806 (5th Cir. 1973).

A. Where Evidence Originating With a Non-

Testifying Declarant Is Offered Against an

Accused, the Prosecution Must Demonstrate

Such Evidence Has an Independent ‘‘Indicia

of Reliability’’.

Again, the thrust of Licavoli’s position is that the

jury’s consideration of the testimony concerning the con-

17

versations and remarks being centralized in this argument

violated both his right of confrontation and the hearsay

rule. As background for these contentions it should be

noted, as was stated in the plurality opinion in Dutton v.

Evans, 400 U.S. 74 (1970), that “the mission of the con-

frontation clause is to advance a practical concern for

the accuracy of the truth-determining process in criminal

trials by assuring that the trier of the fact [has] a satis-

factory basis for evaluating the truth of the prior state-

ment” (Id., 89).

In our view, the statements attributed by these var-

ious witnesses to Liberatore contained the implied asser-

tion that Licavoli was somehow privy to Liberator’s ac-

tivities. The truth of this implication depends not only

on whether Liberatore made the statements attributed to

him, but on whether the statements (if made) were re-

liable. This question turns on the answers as to (1)

whether there was “a satisfactory basis for evaluation”

their truth (California v. Green, 399 U.S., at 161); (2)

whether cross-examination could have possibly exposed

the statements, if made, to be unreliable (Dutton v. Evans,

400 U.S., at 89); and (3) whether the statements them-

selves contained a sufficient “indicia of reliability” (Ibid.).

It may very well be, as the testimony of Lanci and

Guiles tends to show, that some of these statements may

very well have been made by Liberatore. But this fact

hardly furnishes a satisfactory basis for crediting the

underlying truth of the statements themselves. This is

so for a number of reasons including the idea that if the

conversations did take place, Liberatore, for his own rea-

sons (including a possible desire to camouflage some ulte-

rior motives or to merely add “prestige” to the undertaking

in the eyes of Aratari) may have deliberately made it ap-

pear that he acted with Licavoli’s blessings. See Park v.

Huff, 493 F.2d 923, 931-932, reversed on other grounds, 506

F.2d 849 (5th Cir. 1974).

18

B. The Admission of Extrajudicial Statements

Imputed by Prosecution Witnesses to a Non-

Testifying Declarant, Which Statements Were

‘Crucial’ to the Prosecution and ‘‘Devastat-

ing’’ to the Defense, Constitutes a Violation

of the Right of Confrontation.

As to this point, it is beyond dispute that the same

consideration which generates the hearsay rule supports

and animates the right of confrontation. Yet, it seems to be

all too clear that any apparent similarity of values as be-

tween the rule and the right, does not result in the ex-

clusion of all hearsay that may be violative of the con-

frontation clause, any more than it makes admissible all

testimony that qualifies as an acceptable exception to the

hearsay rule.

At least this much is clear, Liberatore, the asserted

declarant, could not be subjected to cross-examination,

which would have at least exposed his demeanor, and pos-

sible lack of credibility to the scrutiny of the jury. Hence,

the “mission” of the confrontation clause (usually insured

by cross-examination) could not be vindicated here.

Granted, it is also true that a failure to serve this confron-

tation value may not be fatal where the hearsay testimony

is neither “crucial” to the prosecution, nor “devastating”

to the defense. Dutton v. Evans, 400 U.S., at 85, 87 (1970).

Here, however, it could not be more obvious, the evidence

being assailed was both “crucial” and “devastating”. Not

only this, unlike the statements made in Dutton, the state-

ments made here were not spontaneous, but were in the

form of an express assertion that in no way carried with it

a caution against it being given undue weight (Id., 87-89).

For these reasons the admission of the statements re-

ferred to above must be viewed as violations of the con-

frontation clause.

19

IV. In a Multiple Defendant RICO Conspiracy Prose-

cution It Is Improper to Charge the Jury That

a Defendant Could Be Found to Have Committed

the Charged Predicated Acts of (a) Conspiracy

to Murder a Particular Individual and (b) the

Murder of This Same Individual, As Well As, the

RICO Conspiracy Itself on an Aider and Abettor

Theory.

It is axiomatic that to fasten guilt on one accused

of being a conspirator it is necessary to prove such person

actually participated in the charged conspiracy. Also,

the law is that a conspiracy to commit a substantive

offense and aiding and abetting its commission are sep-

arate offenses. If it were otherwise, one simply could not

be convicted of both. See United States v. Tropiano, 418

F.2d 1069, at 1083 (3d Cir. 1969), citing Nye and Nisson

v. United States, 336 U.S. 613 (1949).

Therefore, the distinctions between the concept of

“aiding and abetting” and that of “conspiracy” are, under

the facts here most crucial. Doubtless, it was because the

distinctions between the concept of “aiding and abetting”

and that of conspiracy can be so very crucial that this court

rather specifically admonished that the crime of “con-

spiracy” is not to be confused with the crime of “aiding

and abetting”. Iannelli v. United States, 420 U.S. 770, 777

n.10 (1975).

So postured, any argument contending that the various

aiding and abetting instructions given to the jury were

not hopelessly confusing would not only be specious, such

an argument would be totally at odds with simple logic.

This is especially so if the rule‘. . . that one does not

become a party to a conspiracy by aiding and abetting

it...” Id., at 709. See United States v. Peoni, 100 F.2d

401, at 402 (2d Cir. 1938); United States v. Koch, 113 F.2d

982, at 983 (2d Cir. 1940); United States v. Ford, 324 F.2d

20

950, at 952-953 (7th Cir. 1963) and United States v. Greer,

467 F.2d 1064, at 1070-1071 (7th Cir. 1972). These cases

support the idea that more is required to become a con-

spirator than merely being a participant in the object sub-

stantive offense.

Given this circumstance, it is of no mean importance

to note the court submitted to the jury alternative theories

under which Licavoli could be held accountable for the

substantive offense involving the death of Danny Greene.

Simply put, the jury was told the requisite determination

could be made on the basis of proof there was a con-

spiracy to kill Danny Greene and proof of Licavoli’s

membership in such conspiracy. And, they were also told

that this determination could be predicated on an aider

and abettor theory.

It is this distinction that makes our contentions on

this issue so critical. For it could very well be thai

the jury believed that Licavoli only “aided and abetted”

Ferritto’s efforts to kill Danny Greene and that Licavoli

was not privy to the conspiracy to kill Danny Greene. Or,

the jury could have determined that Licavoli had only

aided and abetted the conspiracy in the killing under

circumstances that did not make him a conspirator. If

either of these options actually reflects what was the

jury’s thinking then it just has to be that the verdict here

cannot survive meaningful scrutiny because only one predi-

cate act was shown. And, of course, if the jury convicted

Licavoli of the RICO conspiracy itself on the basis of a

belief that he somehow merely aided and abetted the

murder conspiracy, then the verdict would be as incom-

prehensible as was the charge that allowed the conviction

of Licavoli to happen in the first place.

The analysis made above must be validated if the

Court agrees “the cases are clear that one may cause

another to commit, 18 U.S.C. §2(b), or aid and abet its

commission, 18 U.S.C. §2 (a), without being a conspirator

21

with the principal offender.” United States v. Krogstad,

576 F.2d 22, 29 (3d Cir. 1978).

Given the above tenets and the Court’s convoluted

aiding and abetting instructions, the question that im-

mediately arises (in the first instance) turns on whether

the two predicate acts requirement of §1961 (5) can be

satisfied by “proof” that Licavoli (1) aided and abetted

the murder of Danny Greene. Assuming a negative an-

swer to this question, is it nonetheless true that one can be

convicted on a RICO conspiracy charge on the basis of

proof he aided and abetted such a conspiracy?

V. A Charge That Exposes an Accused to Being

Convicted by Less Than the Unanimous Concur-

rence of All the Jurors Violates the Sixth Amend-

ment Rights of the Accused As Implemented by

Rule 31 (A), Federal Rules of Criminal Pro-

cedure.

Under the instructions given by the Court, the jurors

could have returned a less than unanimous verdict. This

fo'Jows inasmuch as some of the jurors, but not all of them,

might have only believed that Licavoli was guilty because

he had indeed conspired to kill Danny Greene and the kill-

ing itself occurred in furtherance of such conspiracy.

Others, rejecting Ferritto’s testimony about the conspiracy,

may have believed Licavoli aided and abetted the actual

killing by the furnishing of alleged information about the

Doctor’s appointment. Indeed, this particular option was

further complicated by the specific license given the jury

to find Licavoli “committed the predicate act of con-

spiracy to murder” if it were determined that he either

“planned or aided one or more defendants or co-conspira-

tors in planning the commission of the Greene murder”

(Emphasis supplied).

First of all, it cannot be overlooked that the point be-

ing specifically argued here was compellingly, in our judg-

22

ment at least, called to the Court’s attention in full com-

pliance with Federal Rules of Criminal Procedure, Rule

30.

Our point, at the trial and now, is that the court’s un-

fortunate charge in which the jury was given these al-

ternative theories of guilt exposed Licavoli to the very

real danger of being convicted by less than the unanimous

concurrence of all the jurors as to any specific theory

of conviction.

The lack of unanimity issue here being urged was

specifically dealt with rather recently by the Fifth Cir-

cuit in United States v. Gipson, 553 F.2d 453 (5th Cir.

1977). In Gipson, the Court aptly concluded that the right

of an accused to a unanimous verdict was violated where,

“'. . under the [court’s] instruction, the jury was per-

mitted to convict ... even though there may have been

significant disagreement among jurors as to what he did.”

Id., at 458-459. In making this point, the Court termed su-

perficial the argument, which also may be made in the

instant case, that “since every juror was still required to

find all elements of the charged offense present in order

to convict the defendant, there was necessarily unanimous

jury agreement as to... guilt”. Id., at 457.

VI. Where the Evidence in a RICO Conspiracy Pros-

ecution at Best Shows an Accused Committed

Only One of the Alleged Predicate Acts, or Of-

fenses, Such Evidence Would Be Legally Insuf-

ficient to Support a Finding of Guilt.

The central contention made in this segment of our

Petition is that the pattern requirement of two separate

predicate acts could not be, and was not, established as

against Licavoli for various specific reasons that emerge

from the analysis made below. Our starting point is the

indictment as against Licavoli, which ultimately charged

23

as predicate acts (1) a conspiracy to kill Danny Greene

and (2) the murder of Danny Greene. These charges were

based on asserted violations of the Ohio Revised Code,

§2923.01 and 2903.01.

A. “Conspiracy to Murder’’ Cannot Properly Be

Regarded As a Predicate Act in a RICO Con-

spiracy Prosecution.

The position argued below is that the conspiracy to

murder offense relied on as a predicate act for the RICO

conspiracy charge set forth in this indictment is not cov-

ered by 18 U.S.C. §1961 (1) because, under this section

only substantive offenses can be shown as predicate acts.

Also, the “two separate acts” requirement of §1961 (5), is

not shown by proof of acts that are merely “legally dis-

tinct” as distinguished from being “factually distinct.”

This being so, the conspiracy to murder Greene and the

murder of Greene must be regarded as having merged; so

much so, that even if proved, could only be regarded as

one predicate act. See United States v. Phillips, 664 F.2d

971 (5th Cir. 1981) and United States v. Hernandez, 591

F.2d 1019 (5th Cir. 1979).

The RICO Act originated in the Senate as S. 1623, 91st

Cong., lst Sess. (1969) (the “Criminal Activities Profits

Act”) and S. 1861, 91st Cong., Ist Sess. (1969) (the

“Corrupt Organizations Act of 1969”). S. 1623 provided

that persons who derived income from “criminal activity”

and applied that income to the acquisition of a business

enterprise shall be guilty of a crime. The original bill

defined “criminal activity” as follows:

The term “criminal activity means [as in the present

statute] the various categories of offenses and specific

statutes were listed .. . and (c) any conspiracy to

commit any of the foregoing offenses. (Emphasis

supplied. )

24

Id., at §2 (1). S. 1861 created criminal sanctions based on

“racketeering activity” and “pattern of racketeering ac-

tivity”, with the former defined as follows:

(1) The term “racketeering activity” means [as

in the present statute the various categories of offen-

ses and specific statutes were listed] ... and (C) any

conspiracy to commit any of the foregoing offenses.

(Emphasis supplied.)

In the final version of the statute, t.e., $1961 (1), subdivi-

sion (c) relating to conspiracy was deleted. As we see it,

this fact plainly demonstrates Congress’ intention not to

make conspiracy a separate act of racketeering.

Also, it should be noted as persuasive that while the

general conspiracy statute, 18 U.S.C. §371, is not listed, or

otherwise described in $1961 (1), as an act of racketeering,

conspiracy to violate any of the three subdivisions of 1962

(d) is so listed. Now the government will surely argue

that conspiracy to murder is an “act or threat involving

murder”, conduct proscribed by 1961 (1) (A). This argu-

ment, however, should prove unavailing because the early

drafts of the legislation, §1623 and 1861, included con-

spiracies as a separate offense and also used the word

“involving”. Stated another way, the absence of the word

“involving” from §1961 (1) (B) and (C), which comprise

the bulk of the listed offenses, cannot be regarded as sig-

nificant absent some evidence Congress actually intended

conspiracy to commit only those crimes listed in (A) and

(D) should be regarded as predicate offenses and did not

intend conspiracy to commit a welter of other offenses

listed under (B) and (C), should be predicate offenses.

The closest case to the present issue—whether con-

spiracy to murder can be regarded as a predicate act in a

RICO prosecution—is United States v. Welch, 656 F.2d

1039 (5th Cir. 1981). In Welch, the Court had before it the

precise question here—that is, whether “conspiracy to

25

murder” can properly be regarded as a predicate act in a

RICO prosecution. What is significant is that the Court

in Welch, after resolving the appeal on a different basis,

made the point that “it is not yet settled whether a charge

of conspiracy to murder is a proper predicate for a RICO

charge” Id., at 1063 n.32.

In any event, whether conspiracy to murder (a charge

based on the Ohio statute referred to above) could, under

the facts of this case, be a predicate act was a most critical

issue submitted to the courts below. Despite this fact, the

Sixth Circuit’s conclusory reasoning is exposed upon anal-

ysis to not only be defective but to have missed the point.

Here the Court, in holding a conspiracy to murder could be

a RICO predicate offense (Licavoli, at 1045, Appendix “B”,

at A7) failed to recognize the variance between its

rationale and that expressed by the second circuit in United

States v. Weisman, 624 F.2d 1118 (2d Cir. 1980), a case

upon which it placed primary reliance. Also see United

States v. Bagaric, 706 F.2d 42 (2d Cir. 1983). In Bagaric,

the Second Circuit credited Weisman with having artic-

ulated the idea that to be a predicate act to support a sub-

stantive RICO charge the “proof must be of consummated

acts of Racketeering and not conspiracies or attempts, un-

less conspiracies or attempts to commit the substantive

crimes are included within §1961 (1) ‘D).” Bargaric, at

62 n.17.

Also, it should be noted, the District Court correctly

reasoned that the legislative history of the RICO statute

provided the proper test for determining whether a State

offense could be regarded as a predicate act. Simply put,

according to that history “State offenses are included by

generic designation,” 1970 U.S. Code Cong. and Ad. News,

4032. This being so, it becomes understandable why the

Sixth Circuit deliberately failed to mention the “generic

designation’’ required by the legislative history in its

anal ysis.

26

What makes the idea that the Sixth Circuit’s omis-

sion of any reference to the test required by RICO’s legis-

lative history must have been deliberate so compelling is

because under the “generic designation” test it is at once

apparent that ‘“‘a conspiracy offense is not the same as a

murder offense. And, one who conspires to murder has

not committed the murder itself.” Tarlow, Vol. VIII, The

Champion 57, at 58 (March 84).

Indeed, in specifically commenting on this flawed

aspect of the Sixth Circuit’s opinion, a leading authority

in the area of RICO prosecutions made the following point:

Oddly, Judge Kennedy acknowledged this principle in

the context of her holding that murder and conspiracy

to murder are separate offenses under Ohio law and

may both be RICO predicate offenses. United States

v. Licavoli [citation omitted]. This holding could not

have been reconciled with the earlier holding on con-

spiracies as state law predicate offenses had the gen-

eric designation test been applied as required by the

RICO legislative history. (Ibid.)

Hopefully then, this court will view the resolution of

this issue in the courts below as one that ought to be

fully investigated by this court.

B. Where the State Law Mandates Upon Convic-

tion a Merger of the Conspiracy to Murder

Charge With the Substantive Murder Offense,

the Government Does Not, by Proving Both the

Conspiracy to Murder and the Murder Itself,

Establish Two Predicate Acts Sufficient to

Satisfy the Requirements of 18 U.S.C. §1962

(d).

A fair reading of Ohio’s conspiracy statute, particu-

larly Ohio Revised Code, §2923.01 (G), shows that any

conspiracy offense, including conspiracy to murder, Ohio

Revised Code §2923.01 (A) (1) and (2), must be re-

27

garded as an inchoate offense that merges into the par-

ticular substantive, or principal, offense involved when

one is convicted of such offense. Also, Ohio Revised Code,

$2923.01 (F), declares that one “who conspires to commit

more than one offense is guilty of only one conspiracy when

such offenses are the object of the same agreement or

continuous conspiratorial relationship.”

As applied here, this statute mandated the conclusion

actually reached by the trial Judge that any conspiracy,

here, to kill Greene and Nardi simply could not be frag-

mented into two (2) predicate acts by the governrnent in

its quest for a RICO conspiracy conviction. The trial court

in dealing with this particular aspect of our contentions

actually agreed (Appendix C, at A38).

While the Court was certainly correct in the above

holding, there were other serious flaws in the Court’s

overall rationale. These include several that were recog-

nized in Barry Tarlow’s analysis of the decision below in

Vol. VI. No. 7, The Champion (August, 1982) pp. 3 and

10. Here it was reasoned that “the refusal to apply

§2923.01 (G) is arguably inconsistent with the Court’s.. .

holding that Ohio Law governs the merging of the two

murder conspiracies into a single murder conspiracy.” Id.,

at 10. This was said to be so because, as Tarlow saw it,

the state statute concerning multiple conspiracies, §2923.01

(F), “was part of the same statute relating to the merger

of substantive and conspiracy offenses”. Ibid.

Our argument that the trial court’s merger argument

misses the mark is strengthened by the analysis given the

merger concept in United States v. Phillips, 664 F.2d 971,

1038-1039 (5th Cir. 1981). In Phillips, the court discussed

the post-verdict acquittal granted one of the defendants,

Echezarreta, and found that there was a merger of the

only offenses involved as against Echezarreta. In arriving

at this conclusion, the Phillips court, which was dealing

28

with the charges of possession with intent to distribute

and the actua distribution of marijuana, reasoned that

inasmuch as “possession with intent to distribute and actual

distribution merged into one, there was no separate crime

performed in furtherance of the conspiracy’s objective

that would constitute the necessary second act of racketeer-

ing” Id., at 1039. The Couri’s authority for this position

was said to be that Circuit’s decision in United States v.

Hernandez, 591 F.2d 1015 (5th Cir. 1979) (en banc). There

the Court had held, in language that truly applies to the

present case, that “[w]hen the intent to distribute was

executed by a successful sale, the possession with intent

to do so merged into the completed offense.”’ 591 F.2d,

at 1022.

C. The Requirement Under 18 U.S.C. 1961 (1) (A)

That a State Offense Must Be ‘‘Chargeable

and Punishable by Imprisonment for More

That One Year’’ to Qualify As a Predicate Act

Means Chargeable and Punishable at the Time

of the Indictment, and It Means Separately

Punishable From Any Other Related or Inter-

related Offense.

Although the Courts may have properly rejected our

argument that Licavoli’s acquittal was a bar to any further

effort by the government to relitigate the issue as to his

asserted involvment in the murder of Danny Greene,

their dual sovereignty analysis simply does not conclusively

resolve the issues as to the extent “predicate acts” in a

RICO prosecution can be based on state offenses for which

there has been acquittal. See, e.g., Licavoli, 725 F.2d, at

1047; Appendix B, at Al7.

Here it should be noted §1961 (1) (A) requires that

state offenses, if they are to serve as predicate acts, must

be “chargeable under state law and punishable by im-

prisonment for more than one year.” Indeed it has been

29

specifically noted, although in dissent, that after an ac-

quittal in state court, the offense involved is neither

“chargeable” nor “punishable” by more than one year

imprisonment. United States v. Frumento, 563 F.2d 1083,

1097 (3d Cir. 1977) (cert. denied, 434 U.S. 1072 [1978]).

Also see United States v. Davis, 576 F.2d 1065, 1068-1071

(3d Cir. 1978) (concurring opinion). Significant too is

the fact that the majority in Frumento reasoned the role

of state offenses in a RICO prosecution was merely “de-

finitional” and served only to identify the proscribed

unlawful conduct. Id., at 1087 n.8A. The Courts below

have fully adopted this thesis (See Appendix B, at A11.)

In reaching this (farfetched in our judgment) conclusion

the majority in Frumento specifically rejected the position

here being taken, although its logic seems irresistible.

This argument relies, as we do, on United States v.

Mason, 213 U.S. 115 (1909), for the proposition that an

acquittal in state court must be deemed controlling where

the subsequent federal prosecution is based on a state

statutory offense. This rule is predicated on the idea that

a State court’s interpretation of state law is always bind-

ing on Federal Courts. Indeed, the law on this point is

so clear it caused this Court to recognize it lacks the

power to correct a state court’s construction of state law.

Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945). Also see

Huntington v. Attrill, 146 U.S. 657, 669-673 (1892) for the

proposition that “crimes and offenses against the laws of

any state can only be defined, prosecuted and pardoned

by the sovereign authority of that state”.

This brings us to the critical holding in United States

v. Mason, supra. There the Court, in clear and unam-

biguous language, proclaimed that:

As a general rule, the Federal courts accept the judg-

ment of the state court as to the meaning and scope

of a state enactment, whether civil or criminal. Much

30

more should the Federal court, it becomes material

to inquire whether that particular crime against the

State was committed by the defendants on trial in

Federal court for an offense against the United States.

213 U.S., at 125.

It follows from Mason that the Courts below were

obligated to defer to the State Court verdicts in favor of

Licavoli.

CONCLUSION

Judge Merritt, in his concurring opinion below, per-

haps said it best when he noted that:

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 acquittea 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).

While it may indeed seem only strange to Judge

Merritt, for our part strange is really not a strong enough

word. For if Licavoli could be properly convicted on

the basis of the facts here then truly the Government

can require any one of us to either run a gauntlet or

subject themselves to trial by ordeal.

With all the considerations involved in this case in

mind surely this court can see its way to reviewing this

conviction.

Respectfully submitted,

James R. WILLIS

Suite 610, Bond Court Building

1300 East Ninth Street

Cleveland, Ohio 44114

(216) 523-1100

Attorney for Petitioner

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