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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984

## Text

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
ns II oi apanatlsabncsbenseataaavanbenuesnios III
I I Rr III ciniceieectnirsdecsinrcteeecccnsanicenianinsncnstice vII
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
on gc divs 9 ot | ERR E 1
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1532%3A1. Public record. Not legal advice.