Petition — Calandra v. United States
Supreme Court brief1984
Ask Donna
What actually matters in this document.
Text
Bikes Saprome Coats US]
FILED
MAY 2 1984
No. ALEXANDER L. STEVAS
| CLERK |
83-1801 |
|
Supreme Court of the United States
October Term, 1983
ANTHONY LIBERA” RE,
Petitioner,
vs.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
Evmer A. Grutiant, Counsel of Record
Mark R. DeVan
410 Leader Building
Cleveland, Ohio 44114
(216) 241-0520
Counsel for Petitioner
LS ———_———_————— rd
ee nn .:.:°:0@«wW
THE GATES LEGAL PUBLISHING GQ CLEVELAND, OHIO—TEL. (216) 621-5647
QUESTIONS PRESENTED
1. WHETHER RACKETEERING ACTIVITY AS
DEFINED IN 18 UNITED STATES CODE §1961 (1) AND
(5) CAN BE ESTABLISHED WHEN THE GOVERN-
MENT RELIES UPON TWO OR MORE VIOLATIONS OF
STATE STATUTORY LAW AND SAID STATE STATU-
TORY SCHEME PROHIBITS PROSECUTION AND
PUNISHMENT FOR BOTH CRIMES CHARGED.
2. WHETHER THE TRIAL COURT AND THE
COURT OF APPEALS MISAPPLIED THE FIFTH
AMENDMENT PROHIBITION AGAINST DOUBLE JEOP-
ARDY TO A RICO PROSECUTION WHERE CONVIC-
TIONS OF PREDICATE ACTS WERE PREVIOUSLY
OBTAINED AT A SEPARATE TRIAL ON SEPARATE
COUNTS CHARGING THE SAME PREDICATE ACTS
AS SUBSTANTIVE CRIMES.
3. WHETHER USE OF EVIDENCE BY STATE AU-
THORITIES IN A STATE PROSECUTION, GATHERED
AND PRESENTED PRIMARILY BY FEDERAL LAW
ENFORCEMENT AUTHORITIES, ESTABLISHED JEOP-
ARDY AND BARRED FURTHER FEDERAL PROSECU-
TION FOR THE SAME ALLEGFD CRIMINAL ACTIV-
ITIES.
LIST OF ALL PARTIES TO THE PROCEEDINGS
Other Petitioners:
James T. Licavoli
United States Supreme Court
Case No. 83-
John P. Calandra
United States Supreme Court
Case No. 83-1573
Pasquale Cisternino
United States Supreme Court
Case No. 83-
Ronald Carabbia
United States Supreme Court
Case No. 83-
TABLE OF CONTENTS
Questions Presented
List of All Parties to the Proceedings
Table of Authorities ...
Statutory Provisions Involved .....2..............-.c-ccoc-seeeseseeees 2
Judicial History of the Case ...... 3
TEI eR ee 4
Reasons for Granting Petitioner a Writ of Certiorari 8
Argument gy
I. The trial court erred in allowing the Jury to
consider two violations of state law to es-
tablish a RICO violation when the state statu-
tory scheme specifically prohibits prosecution
and punishment for both crimes charged ........ 9
II. The trial court erred in denying the Peti-
tioner’s Motion to Dismiss the indictment on
grounds of double jeopardy where the predi-
cate acts had been previously tried as separate
counts and the prior state prosecutions were,
in reality, the result of an investigation by
federal law enforcement authorities ............. oo
Conclusion , 21
Appendix:
Opinion of the Court of Appeals for the Sixth Cir-
cuit (January 9, 1984) Al
Indictment in the United States District Court
(May 3, 1979) A27
Iv
Memorandum and Order of the United States Dis-
trict Court (March 5, 1982) ....................cecscscceseceees A38
Order of the United States Court of Appeals for the
Sixth Circuit Denying Petition for Rehearing
eee ee ee A64
18 United States Code 201(b) (3) cce.cccccccsccsssssesessssseeee A65
18 United States Code 371 ...ccc.cccccccccsseecssssseeeeeeeeem A65
18 United States Code 1961 2... ccccccccccccescssssssseseeeee A66
18 United States Code 1962 (d) o...c.ccccccccssccssssseen A69
TABLE OF AUTHORITIES
Cases
Abbate v. United States, 359 U.S. 187 (1959) 0... 16
Bartkus v. Illinois, 359 U.S. 121 (1959) —.... 16,17
Blockburger v. United States, 284 U.S. 299 (1932) ........ 15
Brown v. Ohio, 432 U.S. 161 (1977) ....... , 14
Doty v. State, 94 Ohio St. 258 (1916) 9
Ex Parte Lange, 18 Wall. 163, 21 L. Ed. 872 (1873) ... 14
Jeffers v. United States, 432 U.S. 137 (1977) ............... 14
Pinkerton v. United States, 328 U.S. 640 (1946) 000000... «=69
State v. Liberatore, 4 Ohio St. 3d 13 (1983) ................. 7
United States v. Bell, 163 U.S. 662 (1896) —.... 14
United States v. Benz, 282 U.S. 304 (1931) -.................. 14
United States v. Brooklier, 632 F.2d 620 (9th Cir.
1981) .. 14
United States v. Dinitz, 424 U.S. 600 (1976) —...... 14
United States v. Ford, 603 F.2d 1043 (2nd Cir. 1979) ... 14
United States v. Forsythe, 560 F.2d 1127 (3rd _- Cir.
1977) 12
Vv
United States v. Frumento, 563 F.2d 1083 (3rd Cir.
SEED cesrennevininerviaccsvenartsdngitdnutititins 12
United States v. Kamins, 479 F. Supp. 1374 4 (D.C.WD.
NG UD | cicessegedictincsisicblinatinsidiascesstienidianeiegadiantinihes 14
United States v. Marable, 578 F.2d 151 (5th Cir.
TIETIIED 2s Liccctinsctntnntadinishiistnpiinnnaastaiiciaiiedetinaianaiaianitiaanitibe 15
United States v. Martino, 648 F.2d 367 (5th Cir. 1981) 12
United States v. Meinster, 475 F. Supp. 1093 (S.D.
BO IU -stcinsistaerepinnaenichaiitieirininheigiaacinnaiiaindaagimmnneaiaaiiiiiat 15
United States v. Palmero, 410 F.2d 468 (7th Cir.
IIIT 2 scsi inane intlgeadeieanaeeeimaeiiiablaieiialidl 14-15
United States v. Phillips, 664 F.2d 971 (5th Cir. 1971)... 11
United States v. Ruigomez, 576 F.2d 1149 (5th Cir.
ITED -<cachistnntshiessdinrsimeensatttageindinnnceinireinuntitimadenunianeie 15
United States v. Scott, 437 U.S. 82 (1978) -...................... 14
United States v. Sutton, 642 F.2d 1001 (1980) 3
United States v. Tercero, 580 F.2d 312 (8th Cir.
| ee 15
United States v. Wilson, 420 U.S. 332 (1975) ................ 14
U.S. Const., Amend. V ................. odliaiabicell 2, 7, 8, 13, 14, 17, 20
18 U.S.C. 201(b) (3) ............... 2,3
18 USC. 371 ...... sitennagrenaliiitlensishiuniipnialaadl 2,3
ge a fT) 2, 8, 10, 11, 12
18 U.S.C. 1962 ... ad oe 3,8
18 U.S.C. 1962(d) , rlipanememelai 2, 8,15
Ohio Rev. Code Ch. 2008 ...................................- 10
Ohio Rev. Code §2903.01 ................... 10
Ohio Rev. Code Ch. 2923 10
Ohio Rev. Code §2923.01 9,12
Ohio Rev. Code §2923.01(G) 9,12
No.
Supreme Court of the United States
October Term, 1983
ANTHONY LIBERATORE,
Petitioner,
vs.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
The Petitioner, Anthony Liberat ve, respectfully asks
that a Writ of Certiorari issue to review the Judgment
and Opinion of the United States Court of Appeals for the
Sixth Circuit, entered on January 9, 1984.
OPINION BELOW
The original Opinion of he Sixth Circuit Court of Ap-
peals in United States v. James T. Licavoli, et al., Case
Numbers 82-3498, 82-3509, 82-3510, 82-3511, 82-3512, 82-
3513 and 82-3606, is appended hereto at p. Al. The Opin-
ion below relating to Petitioner was in Case Numbers 82-
3509 and 82-3606 and was filed on January 9, 1984. Said
judgment became final on March 5 1984, the date when
Petitioner’s application for rehearing was denied (Ap-
pendix A64).
JURISDICTION
The Opinion of the Sixth Circuit Court of Appeals
affirming Petitioner’s conviction was filed on January 9,
| 1984. A motion for rehearing was denied on March 5, 1984.
| The jurisdiction of this Court is being invoked pursuant to
Title 28 United States Code, Section 1254(1), which pro-
vides for review by Writ of Certiorari of all cases decided
by the Court of Appeals.
CONSTITUTIONAL PROVISION INVOLVED
This case involves the Fifth Amendment to the United
States Constitution which provides as follows:
“'., nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb. . .”
STATUTORY PROVISIONS INVOLVED
18 United States Code 1961(1) and (5).
18 United States Code 1962(d).
18 United States Code 371.
18 United States Code 201(b) (3).
See Appendix A65.
JUDICIAL HISTORY OF THE CASE
This is a Petition for Certiorari to review the judg-
ment of conviction of ihe Petitioner, Anthony Liberatore,
in the United States District Court for the Northern District
of Ohio, Eastern Division. The Petitioner and others were
charged in a four count indictment alleging violations of
18 U.S.C. Section 1962, Racketeer Influenced Corrupt Or-
ganizations Act (RICO), 18 U.S.C. 371, Conspiracy and
18 U.S.C, 201(b) (3), Bribery (Appendix A65). Counts
II, III and IV, Conspiracy and Bribery, were tried first,
Count I, RICO, having been severed by the trial court pend-
ing decision by the Sixth Circuit Court of Appeals in
United States v. Sutton, 642 F.2d 1001 (1980). The Peti-
tioner was acquitted of Bribery, charged in Count III and
convicted of Conspiracy and Bribery charged in Counts
II and IV.
Count I was tried in a jury trial beginning April
1, 1982. The Petitioner was found guilty on July 8, 1982.
On July 30, 1982, the Petitioner was sentenced to serve
a term of incarceration of fourteen years concurrent with
the sentences imposed on Counts II and IV.
The Petitioner subsequently appealed to the Sixth Cir-
cuit Court of Appeals. The Court of Appeals affirmed
his conviction on Count I, RICO (Appendix Al). From
that judgment affirming his conviction, the Petitioner now
seeks review of his conviction on certiorari to this Court.
STATEMENT OF THE CASE
On October 6, 1977, Daniel Greene was killed by a
bomb in the parking lot of Brainard Place in Lyndhurst,
Ohio. An intensive investigation by local and federal au-
thorities ensued which resulted in indictments in December
of 1977 charging, among other offenses, aggravated murder
in the Court of Common Pleas of Cuyahoga County, Ohio
against James Licavoli aka Jack White, Angelo Lonardo,
Thomas Sinito, Ronald Carabbia, Pasquale Cisternino aka
Butchie, and James Fratianno. These indictments were
based upon information given to authorities by one Ray-
mond Ferritto.
Ferritto testified in Common Pleas Court that in ap-
proximately May of 1976 he was summoned to Warren,
Ohio by James Fratianno to discuss problems Anthony
Delsanter was having with John Nardi and Danny Greene
in Cleveland, Ohio.t According to Ferritto’s state trial
testimony, Delsanter met with him on a second trip to
Warren, Ohio and initiated the plan to murder Greene
to eliminate his interference in gambling in the Cleveland
area. Several other meetings were held both in Warren
and Cleveland in tracking Greene in an attempt to kill
him. During these meetings various people allegedly
joined Ferritto in the planning of and stalking of Greene,
including Jack White, Butchie Cisternino and Ronald Ca-
rabbia. The plan to kill Greene, according to Ferritto,
continued until he was eventually killed at Brainard Place
on October 6, 1977.
=
ait
5
During the time of the first state trial, Louis Aratari
and Gary Percio were arrested in Middleburg Heights,
a suburb of Cleveland, Ohio. Their automobile contained
weapons and Aratari, already on parole, became a govern-
ment witness. Aratari claimed that he had been hired
by Thomas Lanci, a clothing salesman, upon orders of
the Petitioner, Anthony Liberatore, to assist in the killing
of Greene. Aratari claimed to have been originally hired
to kill the “Jrish crew” consisting of Greene’s partners,
Keith Ritson, Kevin McTaggart and Brian O’Donnell. Sub-
sequently, Aratari brought in Ronald Guiles aka Renaldo
Giuliani, a fellow inmate in Ohio prisons, to help him
stalk the “Irish crew.” Aratari then claims to have been
also put on trail of Greene and to murder him or to
assist in his murder. Kenneth Ciarcia, Lanci’s uncle, pro-
vided automobiles to Aratari and Guiles to use. Aratari
and Guiles claimed to have gone to the scene of the
Greene murder as a back-up team, prepared to shoot Greene
with a rifle, if possible. At that point, Ferritto, in the
company of Carabbia—not Cisternino—ordered Aratari
and Guiles to leave when they failed to see Greene when
he arrived in the Brainard Place parking lot.
Although Ferritto first claimed that Cisternino had
been with him when Greene was killed, after the arrest
of Aratari and Guiles, Ferritto changed his testimony
to remove Cisternino from the automobile and placed Ca-
rabbia there as the party who detonated the bomb which
killed Greene. Ferritto now claimed Cisternino had helped
construct the bomb used to kill Greene.
As to the Petitioner, Ferritto’s recited testimony re-
vealed that codefendant Calandra hed told Ferritto that
two individuals, who purportedly worked for the Peti-
tioner, could be used in “. . . this Greene thing.” Fer-
ritto later met Aratari, who eventually introduced Guiles
to him. Aratari claimed to have worked for the Petitioner.
A stipulation was then entered into the record estab-
lishing that if the balance of the testimony of Ferritto
from this third trial was read to the jury, the Petitioner’s
name would not appear.
However, the cross-examination of Ferritto read to
the jury revealed several exculpatory facts: at no time
had Ferritto ever met or spoken with the Petitioner; of
all the many people at the Delsanter funeral, the Petitioner
was not present; the Petitioner was not present at the
October 4, 1977 meeting in which one last attempt to
kill Greene was discussed; that neither Aratari nor Guiles
did anything in the killing of Greene; that contrary to
the testimony of Aratari and Guiles, they never got into
Ferritto’s car at Brainard Place, they were never told
that the bomb car had been placed at Brainard Place
the previous night, that no test or “dry run” was per-
formed the day before the murder, on October 5, 1977;
that Ferritto, in two statements, one to the FBI and one
to the federal grand jury, never mentioned Aratari or
Guiles as being on the scene at Brainard Place; that Fer-
ritto never mentioned Aratari and Guiles because they
had never done anything toward the killing of Greene; and,
contrary to the purported enlistment of Aratari and Guiles
at a wedding on September 24, 1977 to kill Greene, Fer-
ritto testified that he first met them prior to September
10, 1977."
During the first state trial, everyone was acquitted ex-
cept Coenen and Carabbia. Calandra, due to health problems,
was granted a separate trial
Based upon the claims of Aratari and Guiles, an indictment
and Sere Valeed ee Se St ee ara pote tan
(Continued on following page)
7
The Petitioner, Anthony Liberatore, offered several
witnesses in his behalf. The Petitioner called Brian O’Don-
nell himself who testified that Danny Greene introduced
Liberatore to him as a good friend and that he, O’Don-
nell, was not involved in criminal activity with Danny
Greene as Aratari had claimed. Further, O’Donnell testi-
fied that he was quite visible and available on a routine
basis at all times Aratari and Guiles claimed they sought
him out on the west side of Cleveland to kill him, but
could not find him. O’Donnell also contradicted Aratari
as to a meeting between Greene and the Petitioner as
to time, the parties present, and subject of the meeting
(to help Ritson’s father find a job).
The son of Danny Greene, Danny Kelly, also tes-
tified that Liberatore and his father were friends and that
his father and Liberatore often met.
Victor Lungaro was called on behalf of codefendant
Ciarcia. Lungaro owned the Arthur Murray Dance Studio
where Aratari and Guiles claimed they obtained a rifle
to help kill Greene if they should find him. Lungaro tes-
tified, as did Lanci,* that he never provided a weapon to
Aratari nor Guiles and only sighted a rifle for Lanci, which
he returned to him.
Footnote continued—
The Petitioner was tried on the state indictment for ag-
vated murder and aggravated arson. The trial began on
ah
Supreme Court on March 9, 1983 ruled that
clause of the Fifth Amendment to the United States Consti
barred retrial of the 2 eS
murder in the Court of Common Pleas. See State v. \
4 Ohio St. 3d 13 (1983).
3. Lanci became a government
of egw ay hye of his State murder conviction but prior
to the federal RI
REASONS FOR GRANTING PETITIONER
A WRIT OF CERTIORARI
1. THIS CASE PROVIDES THE COURT WITH
AN OPPORTUNITY TO DEFINE THE LIMITATIONS
PLACED UPON FEDERAL PROSECUTIONS BY STATE
LEGISLATURES WHERE FEDERAL AUTHORITIES
USE STATE CRIMES AS PREDICATE ACTS IN SUP-
PORT OF A PROSECUTION FOR VIOLATION OF 18
U.S.C. 1962.
2. THIS CASE PROVIDES THE COURT WITH ITS
FIRST OPPORTUNITY TO INTERPRET CONGRES-
SIONAL INTENT AND LIMITATIONS IN THE USE
OF STATE CRIMES AS PREDICATE ACTS IN SUP-
PORT OF A PROSECUTION FOR VIOLATION OF 18
U.S.C. 1962, THE RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS ACT.
3. THE DECISION OF THE COURT OF APPEALS
OF THE SIXTH CIRCUIT CONFLICTS WITH THE DE-
CISIONS OF THE COURTS OF APPEALS OF THE
THIRD AND FIFTH CIRCUITS.
4. THIS CASE PROVIDES A UNIQUE LEGAL
QUESTION INVOLVING THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT WHERE PRED-
ICATE CRIMES UNDER 18 U.S.C. 1961(1) AND (5) AND
1962(d) WERE PREVIOUSLY TRIED AS SEPARATE
COUNTS OF THE SAME INDICTMENT.
5. THIS CASE PROVIDES THE COURT WITH AN
OPPORTUNITY TO ESTABLISH AND DEFINE WHAT
CONSTITUTES A BAD FAITH FEDERAL PROSECU-
TION FOR FIFTH AMENDMENT DOUBLE JEOPARDY
PURPOSES WHERE A PRIOR STATE PROSECUTION
WAS BASED ENTIRELY ON THE EFFORTS AND SUP-
PORT OF FEDERAL AUTHORITIES.
ARGUMENT
I. THE TRIAL COURT ERRED IN ALLOWING THE
JURY TO CONSIDER TWO VIOLATIONS OF
STATE LAW TO ESTABLISH A RICO VIOLA-
TION WHEN THE STATE STATUTORY SCHEME
SPECIFICALLY PROHIBITS PROSECUTION
AND PUNISHMENT FOR BOTH CRIMES
CHARGED.
Under Ohio law the state is forbidden from obtaining
a conviction for both conspiracy to commit murder and
murder. Ohio Revised Code §2923.01 provides in per-
tinent part:
(G) When a person is convicted of committing
or attempting to commit a specific offense or of com-
plicity in the commission of or attempt to commit such
offense, he shall not be convicted of conspiracy in-
volving the same offense. (emphasis added).
The Ohio legislature has thus adopted the Wharton
rule which recognizes the merger of conspiracy into the
completed crime and has rejected the Pinkerton rule, Pink-
erton v. United States, 328 U.S. 640 (1946).*
Congress did not specifically contemplate the Ohio
statutory scheme when it enacted the RICO statutes in
1970. The provisions in the proposed original bills pro-
viding that a predicate act could be “. . . any conspiracy
to commit any of the foregoing offenses” was deleted from
the final version. See Senate Bill 1623, March 20, 1969,
and Senate Bill 1869 of April 19, 1969, Corrupt Organi-
4. Prior to 1974 Ohio did not have a crime of conspiracy.
However, conspiracy was recognized as a vehicle to inculpate
certain offenders as an evidentiary matter. See Doty v. State,
94 Ohio St. 258 (1916).
10
zations Act of 1969. Deputy Attorney General Richard
Kleindienst, on August 11, 1969, suggested a revision of the
Senate bills so as to narrow the definition of ‘“racketeer-
ing activity.” Specifically, Mr. Kleindienst felt the act as
proposed, “. . . would result in a large number of unin-
tended applications as well as tending towards a complete
federalization of criminal justice.” By these words Mr.
Kleindienst recognized the need to allow individual states
continued authority to define and proscribe offenses and
the need to further avoid “. . . unintended applications .. .”
of the proposed RICO law. The Congress adopted, in sub-
stance, the views of the Department of Justice. Hence, a
clear mandate was established to limit the predicate acts
to those which the various states had intended as crimes.
There is no inference the Senate intended to include con-
spiracy acts in the final version, and by its omission, the
intent of Congress is clear—to not include state conspiracy
crimes within §1961(1) (A).
The generic meaning of “murder” is controlling.
“Murder”, Ohio Revised Code §2922.01 et seq., relates to
or describes its entire group or class, and “murder”
does not always contemplate a conspiracy to com-
plete its unlawful act. Taking the trial court’s analy-
sis of generic meaning of “murder,” the Petitioner sub-
mits that murder is descriptive of its entire group or class.
That group or class of crimes is more broadly designated
as “homicides.” The Ohio statutory scheme clearly divides
the classifications of crimes under Title 29 into thirteen sep-
arate sections, each with its own defined and prohibited
unlawful activities. Homicides are grouped into Ohio Re-
vised Code Ch. 2903; conspiracy, attempt and complicity are
grouped into Ohio Revised Code Ch. 2923. The Ohio Revised
Code specified those crimes which it is unlawful to con-
spire to commit. Hence, under Ohio law, conspiracy is
codified as a separate and distinct crime which merges
11
into the completed crime upon conviction for its commis-
sion. Murder in Ohio is not conspiracy. Conspiracy in
Ohio is not murder. The merger of conspiracy into the
completed crime upon conviction not only prohibits
multiple sentences, but also prohibits multiple convic-
tions in accord with the principle of Wharton’s rule of
merger. Otherwise, the Ohio General Assembly would
have allowed for multiple convictions and permitted mul-
tiple sentences. Unlike other states in which conspiracy
is a common law offense, Ohio has, by its statutory scheme,
defined the limits of prosecution for conspiracy. Congress
does not have the authority to expand the boundaries of
statutory crimes in Ohio, said power lying entirely within
the authority of the Ohio General Assembly.
Additionally, it should be noted that Congress specifi-
cally employed the singular form of the words “act” and
“threat” when defining those crimes which, under state
law, are predicate acts. The Petitioner submits that since
a singular “act” or “threat” involving the enumerated
crimes was specified in 18 United States Code §1961,
Congress intended to make each separate violation of an
enumerated state crime itself one crime and proof of the
same to be supported by evidence of each “act” or “threat.”
Nowhere do the words appéar in that statute which would
give life to an interpretation that each “act” or “threat”
underlying a specific crime was itself to be a crime. Just
as a single conspiracy cannot be separated by the govern-
ment into separate prosecutions for each act under the
conspiracy, the government should not be allowed to sep-
arate acts which lead up to a specified predicate act so
as to establis two or more predicate acts under §1961.
See United States v. Phillips, 664 F.2d 971 (5th Cir. 1971).
Finally, Congress is not unlimited in its assimilative
use of state criminal statutes to defined federal crimes.
12
United States v. Frumento, 563 F.2d 1083 (3rd Cir. 1976),
held:
The state offenses referred to in the federal act are
definitional only; racketeering, the federal crime, is
defined as a matter of legislative draftsmanship by
reference to state law crimes. At 1087 (emphasis
added).
In accord are United States v. Forsythe, 560 F.2d
1127, 1135 (3rd Cir. 1977): “. . . RICO incorporates the
elements of those state offenses for definitional purposes;”
United States v. Martino, 648 F.2d 367, 381 (5th Cir. 1981):
“The predicate acts are in turn proscribed by existing
enumerated state or federal laws.”
The expansive use of state criminal statutes must
therefore give the government not only a broader range
of offenses to prosecute, but also define the limits of their
use. It should be noted that §1961(1)(A) clearly includes
“racketeering activity” under state law or “. . . any threat
or act involving . . . [the enumerated crimes] which is
chargeable under State law and punishable by imprison-
ment for more than one year.” (Emphasis aclded). Hence,
punishment is a requisite to predicate act status under
§1961(1) (A).
As noted previously, Ohio Revised Code §2923.01(G)
prohibits not only conviction for conspiracy to murder when
a murder conviction is obtained, but it follows that a sen-
tence can not be imposed in such a situation. Without a
conviction there can be no sentence and without sentence,
the predicate act of conspiracy in conjunction with the
substantive predicate act of murder, fails to qualify as a
predicate crime under §1961(1) (A).
13
II. THE TRIAL COURT ERRED IN DENYING THE
PETITIONER’S MOTION TO DISMISS THE IN-
DICTMENT ON GROUNDS OF DOUBLE JEOP-
ARDY WHERE THE PREDICATE ACTS HAD
BEEN PREVIOUSLY TRIED AS SEPARATE
COUNTS AND THE PRIOR STATE PROSECU-
TIONS WERE, IN REALITY, THE RESULT OF
AN INVESTIGATION BY FEDERAL LAW EN-
FORCEMENT AUTHORITIES.
Prior to trial the Petitioner moved the district court
to dismiss the predicate acts of bribery specified in Count I,
RICO, on grounds of double jeopardy and collateral estop-
pel. In support of the requested dismissal, the Petitioner
noted in his motion that: (1) he was previously tried in
1980 on Counts II through IV alleging conspiracy and
bribery; (2) The bribery charges, Counts III and IV, were
alleged in the RICO charge, Count I, as predicate acts in
paragraphs 8(d) and (e); (3) The Petitioner neither re-
quested nor caused the separate trial of the RICO charge,
Count I; and (4) The Petitioner was acquitted of Count
III, bribery, and found guilty and sentenced on Counts II
and IV, conspiracy to bribe and bribery.
The district court granted the Petitioner’s motion to
dismiss the predicate act of bribery charged in paragraph
8(d) of Count I. The district court dismissed this pred-
icate act under the doctrine of collateral estoppel. How-
ever, the district court overruled the Petitioner’s motion
to dismiss as to the predicate act charged in paragraph
8(e) of Count I and also overruled the Petitioner’s motion
to dismiss on the grounds that the previous state proceed-
ings were, in reality, a federal prosecution and a federal
trial was barred by the Double Jeopardy clause of the
Fifth Amendment (Appendix A38).
14
A
The Fifth Amendment to the United States Constitu-
tion provides that no person shall “. . . be subject for the
same offense to be twice put in jeopardy of life or limb...”
This fundamental constitutional principle prohibits putting
a criminal defendant on trial more than once for the same
crime. United States v. Bell, 163 U.S. 662 (1896), and
applies whether a defendant is previously convicted or ac-
quitted of the crime charged. Brown v. Ohio, 432 U.S. 161
(1977); United States v. Scott, 437 U.S. 82 (1978); United
States v. Dinitz, 424 U.S. 600 (1976); United States v. Wil-
son, 420 U.S. 332 (1975); United States v. Brooklier, 632
F.2d 620 (9th Cir. 1981); and United States v. Ford, 603
F.2d 1043 (2nd Cir. 1979).
The Fifth Amendment prohibition against double
jeopardy protects an accused not only from a second pros-
ecution on the same charge, but also from multiple pros-
ecutions from the same conduct. United States v. Benz,
282 U.S. 304 (1931), and Ex Parte Lange, 18 Wall. 163, 21
L. Ed. 872 (1873). Acquittal or conviction of a lesser-
included offense is a bar to prosecution for a greater offense
arising from the same criminal conduct. Brown v. Ohio,
supra.
The Double Jeopa:dy clause of the Fifth Amendment
applies to conspiracy prosecutions. See Jeffers v. United
States, 432 U.S. 137 (1977). A conspiracy case provides
a unique jeopardy issue. Where the government offers
evidence it establishes the scope of a conspiracy and, due
the Double Jeopardy clause, defines what it may not again
attempt to prove. United States v. Kamins, 479 F. Supp.
1374 (D.C.W.D. Penn. 1979) citing Short v. United States,
91 F.2d 614 (4th Cir. 1937). For purposes of conspirtcy
prosecutions, the extent of the conspiratorial agreement is
the underlying evidence to be reviewed. United States v.
15
Palmero, 410 F.2d 468 (7th Cir. 1969). The Double Jeo-
pardy clause bars repeated prosecutions for what is in
law and fact one conspiracy. United States v. Tercero, 580
F.2d 312 (8th Cir. 1978).
In the indictment before the district court, the Pe-
titioner was tried on the charges of conspiracy to commit
bribery and bribery, Counts II, III and IV. Verdicts
were rendered as to all said counts. The parties were
the same in the previous bribery trial as in the RICO
prosecution, namely, the United States of America and
Anthony Liberatore, the Petitioner. The government then
sought to relitigate crimes for which the Petitioner had
already been put in jeopardy under the guise of a greater
conspiracy—a RICO conspiracy. One of the essential ele-
ments the government sought to prove, two or more of-
fenses in furtherance of the enterprise, was by proof of
bribery which was previously charged in Counts III and
IV and tried in the 1980 trial.
A prosecution under 18 United States Code §1962(d),
RICO conspiracy, provides a unique double jeopardy con-
text. United States v. Meinster, 475 F. Supp. 1093 (S.D.
Fla. 1979), held that a prior §846 conviction (conspiracy
to distribute narcotics) would prohibit a later §1962(d)
RICO conspiracy conviction for the same activity. In
accord are United States v. Marable, 578 F.2d 151 (5th
Cir. 1978), and United States v. Ruigomez, 576 F.2d 1149
(5th Cir. 1978), both of which held that application of
a strict, same evidence test of Blockburger v. United States,
284 U.S. 299 (1932), would “. . . permit the government
arbitrarily to split unitary . . . conspiracies and to initiate
as many prosecutions.” Id, at p. 1151. Cf. United States
v. Meinster, supra.
The ultimate consideration here is whether the Pe-
titioner was prosecuted twice for the same conspiracy
16
It is clear that the bribery offenses charged in Counts
III and IV were the supporting substantive acts of a
prosecution and conviction of conspiracy as charged in
Count II. The conspiracy alleged in Count II charged
all the defendants, with conspiracy, as did the RICO offense
of Count I. The conspiracy Count lI was alleged to have
occurred between December, 1976 and March 9, 1978,
whereas Count I, RICO conspiracy, is alleged to have
occurred between May, 1976 and March 3, 1978. The RICO
conspiracy prosecution offered as proof evidence charged
as the overt acts performed in furtherance of Count II,
Conspiracy; and the government repeatedly argued that
the bribery was in furtherance of the enterprise to help
the defendants carry on the enterprise without, or at least
aware of, FBI surveillance of them.
To argue that the RICO prosecution is anything but a
greater conspiracy prosecution as previously tried is to ig-
nore the essential salient facts offered by the government.
Hence, the charge of conspiracy to commit bribery in
Count II bars prosecution on the greater conspiracy to
violate the RICO statutes. Additionally, retrial of Count
IV, bribery, a predicate act in support of a RICO prosecu-
tion violates the doctrines of collateral estoppel and double
jeopardy.
B
The RICO prosecution was, in reality, a reprosecution
of the Petitioner’s state trial for the murder of Daniel
Greene.
Bartkus v. Illinois, 359 U.S. 121 (1959), and Abbate v.
United States, 359 U.S. 187 (1959), both established that
where different sovereigns prosecuted the same activities,
the double jeopardy clause was not a bar to successive
prosecutions. However, a clear and undeniable exception
17
was established in Bartkus v. Illinois, supra. Where the
role played by federal authorities in a state prosecution
is such as to make that prosecution a mere sham and cover
for a second federal prosecution, the Fifth Amendment bar
against double jeopardy may be violated. See Bartkus v.
Illinois, id. at pp. 123-124.
Evidence presented in both the federal and state
prosecutions showed that a federal investigation into the
activities of the “Cleveland Family” was already ongoing
at the time of the death of Daniel Greene. The Cleveland
Organized Crime Strike Force and the FBI, both of the
Justice Department, had been conducting an investigation
of the activities of the defendants and others for several
years. During the period of time of this investigation,
' the FBI cultivated as a federal informant James T. Fra-
tianno. Fratianno, although residing on the west coast,
purportedly had close ties with several defendants and
unindicted coconspirators in Ohio. Fratianno was a paid
federal informant during several relevant time periods
that investigations were being conducted into the deaths
of Nardi and Greene and the bribery of FBI clerk Rabino-
witz, Fratianno was a material witness on behalf of the
prosecution during both the trial of the bribery case and
Petitioner’s state murder trial.
The extensive federal investigation involved here in-
cluded the use of federally protected informants and wit-
nesses; the obtaining and use of federally authorized tele-
phonic intercept orders on telephones used by defendant
Licavoli and James Fratianno; federally authorized elec-
tronic eavesdropping orders used to overhear conversations
within the residence of defendant Licavoli; extensive phys-
ical surveillance of all the defendants and their activities;
the obtaining and execution of federally authorized search
warrants to search the separate residences of defendants
18
Licavoli and Petitioner, an apartment used by defendant
Cisternino, an apartment located in Willoughby Hills, Ohio,
the residence of one Carmen Marconi in Euclid, Ohio, and
his vehicle, a Ford van, and the residence of Raymond
Ferritto in Erie, Pennsylvania.
The formal prosecutions themselves began with com-
plaints filed in the United States District Court for the
Northern District of Ohio, Eastern Division. These com-
plaints were filed along with the affidavit of Special Agent
E. Michael Kehoe of the FBI which detailed the extensive
surveillance of several defendants and hearsay evidence
of confidential informants as told to Special Agent Kehoe.
The foregoing search warrants, excepting that for Peti-
tioner’s residence, were issued concurrently with the arrest
warrants for defendants Licavoli, Calandra, Cisternino, Ca-
rabbia, and others not indicted herein. The Petitioner
and Lanci and Ciarcia were also later charged by federal
complaint and Petitioner’s home was searched by authority
of a federal search warrant issued with a warrant for his ar-
rest. Indictments were obtained from both the Cuyahoga
County Grand Jury and the federal grand jury for the
Northern District of Ohio, Eastern Division, upon the vo-
luminous testimony and evidence given by federal agents
and federal informants.
During pendency of the various trials in state and
federal courts, the Department of Justice conducted scien-
tific tests through the FBI and the Bureau of Alcohol,
Tobacco and Firearms relating to fingerprints, handwriting
analysis and comparisons, and detection of electronic tele-
phone intercepts allegedly conducted by some defendants.
The Bureau of Alcohol, Tobacco and Firearms in conjunc-
tion with the FBI conducted extensive ballistic and ex-
plosive tests and assisted in reconstructing bombs used
to kill Nardi and Greene. All of this scientific evidence
19
was used during state and federal trials and presented
to the jury in each state prosecution and the federal RICO
prosecution. Fingerprint analysis was offered by the gov-
ernment during both trials before the district court on
all counts in the indictment.
Federal law enforcement authorities utilized informa-
tion from the following paid government informants: Dan-
iel Greene, Raymond Ferritto, James Fratianno, Geraldine
Rabinowitz, Jeffrey Rabinowitz, Louis Aratari, and Victor
Guiles aka Renaldo Giuliani. Ferritto, Fratianno, Geral-
dine Rabinowitz, Aratari and Guiles all testified on behalf
of the prosecution against the Petitioner in his murder
trial in the Cuyahoga County Common Pleas Court. Frat-
ianno, Geraldine Rabinowitz and Jeffrey Rabinowitz testi-
fied for the, government during trial of Counts II, II
and IV in the United States District Court. The testimony
of both Rabinowitzes, Aratari, Guiles and readings of Fer-
ritto’s state trial testimony was offered by the government
during the RICO trial, Count I. These government wit-
nesses were all relocated through the Federal Relocated
Witness Program, received and will continue to receive
monies for their support and the maintenance of their
families, have been given new, secret identities and em-
ployment through the program, consideration and leniency
in prosecutions for a variety of crimes, and when a period
of incarceration was ordered, time was served iu federal
institutions.
Although Counts II, III and IV pertaining to conspir-
acy to commit bribery and bribery are wholly federal
violations, evidence of these crimes was offered by the
State of Ohio in each prosecution and against each defen-
dant in the Cuyahoga County Common Pleas Court when
on trial for the murder of Daniel Greene. Although this
offense is entirely within the jurisdiction of a federal prose-
20
cution, evidence of this crime was used by the prosecution
in the Court of Common Pleas against the Petitioner, An-
thony Liberatore.
Throughout each trial of the defendants in the Court
of Common Pleas, a federal agent sat with the prosecution
team at counsel table. In all said trials, federal agents
testified extensively for the prosecution. During Peti-
tioner’s trial in the Court of Common Pleas, Special Agent
Robert Fredericks of the FBI was present at and assisted
the county prosecutors at the counsel table. The State
of Ohio called numerous federal agents as witnesses, includ-
ing Special Agent Anthony Riggio, Special Agent Douglas
Domin, Special Agent Robert Fredericks, Special Agent
Merwin Smith, Jr., Special Agent George Grotz, Special
Agent Lydia Pugh, Special Agent Thomas Kimmel and
Special Agent Robert Neckel.
As seen by the foregoing, the efforts of federal law
enforcement personnel have been the source from which
all prosecutions in this case and related state prosecutions
have been conducted. The extensive searches, arrests, tests
and experiments; the use of protected informants and wit-
nesses; the source of testimony by federal officers and
assistance at trial has been the singular catalyst to prosecu-
tions for the deaths of Daniel Greene and John Nardi
and bribery of FBI clerk Rabinowitz, whether conducted
in the Cuyahoga County Court of Common Pleas or in
the United States District Court.
Upon the foregoing, the Petitioner submits that the
prior state prosecution was in reality the alter ego of a
federal prosecution and the latter is prohibited by the
Fifth Amendment prohibition against double jeopardy.
21
CONCLUSION
The Petitioner, having demonstrated important and
timely reasons for review, now prays for a Writ of Cer-
tiorari to the United States Court of Appeals for the Sixth
Circuit.
Respectfully submitted,
ELMER A. GIULIANI, Counsel of Record
Mark R. DEVAN
410 Leader Building
Cleveland, Ohio 44114
(216) 241-0520
Counsel for Petitioner, Anthony
Liberatore
Al
APPENDIX
OPINION OF THE UNITED STATECS COURT OF
APPEALS FOR THE SIXTH CIRCUIT
(Decided and Filed January 9, 1984)
Nos. 82-3498, 3509, 3510, 3511, 3512, 3513,
and 3606
UNITED STATES COURT OF APPEALS
For THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
JAMES T. LICAVOLI (82-3498),
ANTHONY LIBERATORE (82-3509, 82-3606),
JOHN P. CALANDRA (82-3510),
PACQUALE CISTERNINO (82-3511)
RONALD CARABBIA (82-3512),
KENNETH CIARCIA (82-3513),
Defendants-Appellants.
AppgaL from the United States District Court for the
Northern District of Ohio, Eastern Division.
Before: Merritt and Kennepy, Circuit Judges, and
Pratt, District Judge.*
Kennepy, Circuit Judge, delivered the opinion of the
Court, in which Pratt, District Judge concurred. Menrarrt,
*Honorable Philip Pratt, United States District Court for the
Eastern District of Michigan, sitting by design:tion.
eS
A2
Circuit Judge, (pp. 23-24) filed a separate concurring opin-
ion.
KENNEDY, Circuit Judge. The six defendant-appellants
were convicted of conspiring to participate in the affairs
of an enterprise [2] through a pattern of racketeering
activities in violation of the Racketeer Influenced and Cor-
rupt Organizations (RICO) statute, 18 U.S.C. § 1962(c)
and (d)’ following a jury trial, and now appeal those
convictions. Defendant Liberatore also appeals a denial
of his motion for a new trial on a bribery conviction.
All seven appeals have been consolidated. We affirm the
judgments of conviction of all defendants.
In order to sustain a prosecution under RICO the
government must establish that defendants engaged in a
“pattern of racketeering activity,” defined as at least two
acts of racketeering activity. 18 U.S.C. § 1961(5). “Rack-
eteering activity” is defined in 18 U.S.C. § 1961(1). The
facts elicited by the prosecution at trial to prove the
defendants’ pattern of racketeering activity are lengthy
and complex. Briefly, the government asserts (and we
agree) that the evidence, viewed in the light most favor-
able to it, established the following.
I. Facts
Defendant Licavoli is a leader of organized crime in
Cleveland. Liberatore is his second-in-command, and Ca-
1. Those sections provide as follows:
(c) It shall be unlawful for any person to be employed
by or associated with any enterprise engaged in, or the ac-
tivities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt.
- (d) 0 ee oe See one See ee
any of the provisions of subsections (a), (b), or (c) of this
section.
A3
landra also holds a position of confidence and responsi-
bility within the organization. Carabbia and Cisternino
act for the organization, carrying out the orders of the
top men. Ciarcia manages a car dealership and sup-
plies vehicles for the organization’s criminal activities and
also acts on behalf ofthe organization in other ways.
{3} In the spring of 1976 Licavoli decided that he
needed to have one Danny Greene killed. Greene was
the leader of a rival criminal organization which had de-
veloped a monopoly on criminal activity in West Cleveland.
Licavoli had others in his organization contact Raymond
Ferritto regarding his wish to have Greene killed? Fer-
ritto testified that he met at various times with each of
the defendants (except Liberatore), sometimes separately,
sometimes in groups, to plan Greene’s murder. Ferritto
stalked Greene for some months without success, somie-
times assisted by Cisternino. After Ferritto had been
on the job for some time he asked Licavoli for money
to cover his expenses, and he was eventually given $5,000
by Carabbia. Licavoli also told Ferritto that he would
get a percentage of money derived from gambling in the
Warren and Youngstown areas when the murder was ac-
complished.
Ferritto and Cisternino attempted to bomb Greene’s
apartment building in order to kill him, but never carried
through because of the regular presence of older people
in the area. On another occasion they drove to a party
attended by Greene intending to kill him. They located
Greene’s car but found that it was guarded by members
of Greene’s criminal organization seated in an adjacent
car.
2. Ferritto later testified against all six defendants in their
state trials for Greene’s murder.
A4
Meanwhile Liberatore arranged with two other men,
Aratari® and Guiles, to kill others in Greene’s criminal
organization, and ultimately to help kill Greene as well.
Aratari and Guiles were at times assisted in their efforts
by defendants Carabbia, Calandra, Cisternino and Ciarcia.
Ciarcia and another man provided Aratari and Guiles with
a car and weapons.
Licavoli had Greene’s phone tapped in an effort to
obtain reliable information regarding Greene’s daily activ-
ities. Carabbia [4] and Cisternino gave Ferritto the re-
sulting tapes. One tape revealed that Greene was to go
to a dentist’s appointment at 2:30 p.m. on Thursday, Oc-
tober 6, 1977. Defendants Licavoli, Cisternino and Carab-
bia played this tape for Ferritto on Monday, October 3.
On Thursday, the day of Greene’s dentist appoint-
ment, Cisternino and Ferritto built a bomb in an apart-
ment maintained by Cisternino. Ferritto drove to the vi-
cinity of the dentist’s office with the bomb in his car, a
Plymouth. Carabbia drove a second car to the office,
a Nova. This car had a special box mounted on the side
in which the bomb was to be placed. Cisternino re-
mained behind at the apartment to listen to a police scan-
ner for calls. A few minutes after Ferritto and Carabbia
arrived at the dentist’s, Aratari and Guiles arrived in
another car, supplied by Ciarcia as the car to be used
in “the Danny Greene case.” Guiles was armed with a
high powered rifle. The plan was for Guiles to shoot
Greene if he had the opportunity. The bomb was to be
used as a backup method.
Greene arrived for his appointment, parked his car and
entered the office. Guiles apparently had no opportunity
to shoot. A few minutes later a parking space opened next
3. Aratari testified at the trial in this case.
A5
to Greene’s car. Ferritto placed the bomb in the box on
the side of the Nova, parked the Nova next to Greene’s
car, and activated the bomb. Then he got into the driver’s
seat of the Plymouth, which was parked down the block.
When Greene emerged from the office Ferritto began to
drive away, with Carabbia in the back seat. Carabbia then
detonated the bomb with a remote control device and
Danny Greene was killed.
All six defendants in the present case were tried for
Danny Greene’s murder in state court. Cisternino, Carab-
bia and Ciarcia were convicted of Greene’s murder.
The RICO prosecution now on appeal also relied on a
separate set of events to establish a predicate criminal act.
[5] Ms. Geraldine Rabinowitz‘ worked as a file clerk in the
Cleveland office of the FBI, while her then-fiance Jeffrey
Rabinowitz worked at the car dealership that Ciarcia man-
aged. In the spring of 1977 Ciarcia asked Ms. Rabinowitz
to obtain confidential information from the FBI regarding
investigations of himself, Liberatore, and Licavoli. Ms.
Rabinowitz complied, after some hesitation, and continued
to steal confidential information for Ciarcia from time to
time throughout the summer of 1977. Ciarcia assured Ms.
Rabinowitz that she would in return be “covered” for a
down payment on a new home that she and her fiance
planned to buy. On October 12, 1977 the Rabinowitzes
met with Liberatore and Ciarcia, and the Rabinowitzes
asked for $15,000 for a down payment on the home. Al-
though Liberatore was at first unwilling to comply with
this request, the next day he delivered a paper bag to
Ms. Rabinowitz containing $15,000 in cash. Counsel for
Liberatore characterized this payment as a “loan”, but
no interest was set, no repayment schedule made, and
4. Ms. Rabinowitz testified at the federal bribery trial and
the trial in this case.
A6
no collateral specified. The stolen FBI documents were
later found at Ciarcia’s car dealership. All six defendants
were charged with two counts of bribery and one count
of conspiracy to commit bribery and were tried in federal
court. Ciarcia pleaded guilty to all three counts, and Lib-
eratore was convicted of the conspiracy count and one sub-
stantive count.
All six defendants were tried together in federal court
for the RICO violation. The jury found all six guilty of
having violated RICO. Defendants now raise a large num-
ber of issues on appeal.
II. Conspiracy to Murder May Be a Predicate Act
for a RICO Conviction
The District Court instructed the jury that there were
three possible acts which the jury could find to serve as
[6] predicate acts of racketeering for the RICO charge.
These were: 1) conspiracy to murder Danny Greene;
2) the murder of Danny Greene; and 3) bribery. The
court instructed that the bribery act applied only to de-
fendants Liberatore and Ciarcia. The jury therefore had
to find that the other four defendants both conspired to
murder, and murdered Danny Greene in order to convict
them of the RICO violation. These four defendants (Lica-
voli, Calandra, Carabbia, Cisternino) now argue that con-
spiracy to commit murder cannot serve as a predicate act
for a RICO conviction, and that their RICO convictions
therefore cannot stand.
Under 18 U.S.C. § 1961(1)(A) racketeering activity
includes “any act or threat involving murder... .” Con-
spiracy to murder on its face fits within this definition of
racketeering activity. Conspiracy is “an act .. . involving
murder.” However the original versions of the bill that
ultimately became RICO specifically included conspiracy
A7
as a predicate act under section 1961, while the final bill
did not. Defendants argue that Congress’ failure specifi-
cally to enumerate conspiracy in the final version of the
bill demonstrates a legislative intent not to allow con-
spiracy as a predicate act.
The Second Circuit rejected this argument with re-
spect to conspiracies to commit acts listed jn the definition
of racketeering activity under section 1961(1) (D) in United
States v. Weisman, 624 F.2d 1118 (2d Cir.), cert. denied,
449 U.S. 871 (1980). See also United States v. Brooklier,
685 F. 2d 1208, 1216 (9th Cir. 1982) (conspiracy to extort
may be a predicate act), cert. denied, ........ MOUS Stinks , 103
S. Ct. 1194 (1983); United States v. Phillips, 664 F.2d 971,
1015 (5th Cir. 1981) (conspiracy to import marijuana may
be a predicate act), cert. denied, 455 U.S. 912 (1982).
Under 18 U.S.C. § 1961(1)(D), racketeering activity
includes:
[A]ny offense involving fraud connected with a case
under title 11, fraud in the sale of securities, or the
[7] felonious manufacture, importation, receiving, con-
cealment, buying selling, or otherwise dealing in nar-
cotic or other dangerous drugs, punishable under any
law of the United States.
The Second Circuit in Weisman based its holding on
the expansive language in (D), “any offense involving” the
enumerated substantive crimes, “punishable under any
law of the United States.”* The court noted:
This conclusion is bolstered by the fact that subsec-
tions (B) and (C) [of § 1961(1)], which list most of
the other predicate acts chargeable under RICO, con-
spicuously lack the broad “any offense involving” lan-
5. This language also appeared in the original drafts of the
bill that became RICO.
A8
guage of subsection (D) and, in fact, require that the
act be indictable under specifically enumerated sec-
tions of the criminal code.*
624 F.2d at 1124.
Subsection (A) of 18 U.S.C. § 1961(1) contains lan-
guage similarly expansive to that in subsection (D). Un-
der (A), racketeering activity includes “any act or threat
involving” the substantive crime “chargeable under state
law and punishable by imprisonment for more than one
year.” The “provisions of ... [RICO] should be liberally
construed to effectuate its remedial purposes.’” Organized
Crime Control Act of [8] 1970, Pub. L. No. 91-452, § 904(a),
84 Stat. 947. We see no indication that Congress intended
conspiracy to commit murder not to be a predicate act
under section 1961(1)(A).along with conspiracy to ex-
tort, to commit securities-fraud or to import drugs under
section 1961(1)(D). The Fifth Circuit took to the posi-
tion that conspiracy to commit murder may be a predicate
act in United States v. Welch, 656 F.2d 1039, 1063 n.32
(5th Cir. 1981), cert. denied, 456 U.S. 915 (1982), saying:
There is merit to the argument that subsection A
fof 18 U.S.C. § 1961(1)] is as broad and inclusive
as the language of subsection D. If conspiracy to
commit a section D offense can serve as a predicate
6. Cf. Brooklier, supra, which holds that
{c]onspiracies or attempts can serve as the underlying racke-
teering activities because 18 U.S.C. § 1961(1)(B) defines
“racketeering activity” as including those offenses indictable
under 18 U.S.C. § 1951. Section 1951, in turn, makes punish-
able a or conspiracies to obstruct, delay, or affect
commerce schon, extortion or physical violence.
685 F.2d at 1216.
Action Context: Reflections on Bennett v. Berg, 58 Notre
Dame L. Rev. 237, 245 n. 25 (1989), and cases cited’ therein.
A9
act for a RICO charge, then conspiracy to commit
a subsection A offense should also be able to serve
as a predicate act. The language of subsection A
itself—which includes “any act or threat involving
murder”—appears to contemplate a conspiracy to com-
mit murder. A conspiracy to commit murder is an
act involving murder. (emphasis in original)
We adopt the Fifth Circuit’s reasoning in Welch and hold
that conspiracy to commit murder may be a predicate
act under 18 U.S.C. § 1961(1) (A) for a RICO charge.
III. Murder and Conspiracy to Murder Are Separate
Offenses Under Ohio Law and May Both Be Predi-
cate Acts Under RICO
For a defendant to be convicted under RICO he must
have committed more than one act of racketeering activity.
In order for a state crime, such as murder or conspiracy
to murder to serve as a predicate act, it must be “charge-
able under state law and punishable by imprisonment for
more than one year” under 18 U.S.C. § 1961(1)(A). Fed-
eral law holds that conspiracy to commit a substantive
offense and the substantive offense itself are two separate
crimes. See, e.g., lannelli v. United States, 420 U.S. 770,
777 (1975). Under Ohio law, conspiracy to murder and
murder are also two separate crimes. [9] However, a
person convicted of the substantive crime “shall not be
convicted of conspiracy involving the same offense.” Ohio
Rev. Code § 2923.01(G). Thus under Ohio law a person
cannot be convicted of or sentenced for both conspiracy
to commit murder and the murder crime itself. Defendants
argue that the two acts consequently ere not both “charge-
able under state law and punishable for more than one
year.”
Al0
We disagree, for two reasons. First Ohio law, in both
the Ohio Revised Code and the earlier case law, provides
that conspiracy to commit a substantive act and the sub-
stantive act are separate offenses, both separately charge-
able under state law. In State v. Lucas, 85 N.E. 2d 154,
156 (Ohio Ct. C.P. 1949), the court stated:
The conspiracy to commit a crime is an entirely dif-
ferent offense from the crime that is the object of
the conspiracy. It is not a substantive offense, but
essentially a crime of intent. It does not merge in
the completed offense. The unlawful combination and
confederacy constitute the essential element of crim-
inal conspiracy rather than the overt acts done in
pursuance thereof, and neither the success nor failure
of criminal conspiracies is determinative of the guilt
or innocence of the conspirators.
Lucas predates the current Ohio statutory provision, Ohio
Rev. Code § 2923.01. The statute in Lucas made it
a crime [10] to conspire to defraud. Under this statute,
unlike the current one, a defendant could be convicted
and sentenced separately for the substantive crime and
conspiracy to commit the substantive crime. Lucas is sig-
nificant here, however, for its articulation of the common
8. The statute provides, in part:
(A) No person, with purpose to commit or to promote or
facilitate the commission of aggravated murder or murder,
kidnapping, compelling prostitution or promoting prostitution,
aggravated arson or arson, aggravated robbery or robbery,
aggravated burglary or burglary, or a felony offense of un-
authorized use of a vehicle, corrupting another with drugs,
theft of drugs, or illegal processing of drug documents shall
do either of the following:
(1) With another person or persons, plan or aid in
planning the commission of any such offense;
(2) Agree with another person or persons that one
or more of them will engage in conduct which facilitates
the commission of any such offense.
All
law of Ohio that the conspiracy and the substantive crime
are “entirely different.”
The Ohio Revised Code has not modified this common
law precept. Murder is a crime, chargeable under Ohio
law, Ohio Rev. Code § 2903.02, and punishable by im-
prisonment for more than one year, § 2929.02. Conspir-
acy is also a crime in Ohio, Ohio Rev. Code § 2923.01
(A), and is punishable by imprisonment for more than
one year, § 2929.11. RICO nowhere indicates that two
criminal acts otherwise qualifying as predicate acts may
not both constitute predicate acts because under state law
a defendant could not be convicted of or sentenced for
both crimes.
Secondly, contrary to defendants’ contention, it is ir-
relevant whzther these particular defendants could have
been charged under Ohio law and imprisoned for more
than one year for both conspiracy to murder and murder.
This argument has been raised and rejected several times
in the context of state statutes of limitations, when the
state statyte has run on a state crime which is offered
as a predicate act for a RICO violation. Courts have
held that regardless of the running of the state statute
the defendant is still “chargeable” with the state offense
within the meaning of 18 U.S.C. § 1961 (1)(A). United
States v. Mawiesta, 583 F.2d 748, 758 (5th Cir. 1978),
cert. denied, 440 U.S. 962 (1979); United States v. Davis,
576 F.2d 1065, 1066-67 (3d Cir.), cert. denied, 439 U‘S.
836 (1978); United States v. Forsythe, 560 F.2d 1127, 1134
(3d Cir. 1977). The reference to state law in the statute
is siinply to define the wrongful conduct, and is not meant
to incorporate state procedural law. United States v.
Brown, 555 F.2d 407, 418 n.22 (5th Cir. 1977), cert. denied,
435 U.S. 904 (1978). The Third Circuit noted in United
States [11] v. Frumento, 563 F.2d 1083, 1087 n.8A (3d
Cir. 1977), cert. denied, 434 U.S. 1072 (1978):
Al2
Section 1961 requires, in our view, only that the
conduct on which the federal charge is based be typ-
ical of the serious crime dealt with by the state stat-
ute, not that the particular defendant be “chargeable
under State law” at the time of the federal indictment.
(emphasis in original)
We agree and hold that conspiracy to murder and murder
may both constitute predicate acts in this case, regardless
of the fact that a defendant cannot under Ohio law be
separately punished for having committed both crimes.
Ohio law does define the two acts as separate crimes,
each punishable by imprisonment for more than one year,
and this is all that is required under 18 U.S.C. 1961
(1) (A).
IV. Acquittal in State Court of Criminal Acts Does Not
Bar Their Use as Predicate Acts for a RICO Con-
viction
Defendants Licavoli and Calandra were acquitted in
state court proceedings of murdering Greene and conspir-
ing to murder Greene. Consequently, they argue, they
were not “chargeable” with the murder or conspiracy to
commit murder, as required under 18 U.S.C. § 1961(1) (A),
and murder and conspiracy to commit murder could not
therefore serve as predicate acts for their RICO convictions.
We disagree. Frumento is directly on point. Defen-
dants in that case were acquitted in state court on charges
of bribery, extortion and conspiracy to accept bribes. They
were then convicted in federal court of violating 18 U.S.C.
§ 1962(c) and (d), with the above crimes as predicate
acts. On appeal defendants argued that the conviction
was barred by the double jeopardy clause of the fifth
amendment. The Third Circuit disagreed. The court said,
Al3
[12] [RICO] forbids “racketeering,” not state offenses
per se. The state offenses referred to in the federal
act are definitional only; racketeering, the federal
crime, is defined as a matter of legislative draftsman-
ship by a reference to state law crimes. This is not
to say ... that the federal statute punishes the same
conduct as that reached by state law. The gravamen
of section 1962 is a violation of federal law and “ref-
erence to state law is necessary only to identify the
type of unlawful activity in which the defendant in-
tended to engage.” United States v. Cerone, 452 F.2d
274, 286 (7th Cir. 1971). (Footnote omitted.)
563 F.2d at 1087. See also United States v. Phillips, 664
F.2d 971, 1015 (5th Cir. 1981), cert. denied, 455 U.S. 912
(1982); United States v. Anderson, 626 F.2d 1358, 1367
(8th Cir. 1980), cert. denied, 450 U.S. 912 (1981).
V. The Prior Testimony of Raymond Ferritto Was
Properly Admitted at Trial
Ferritto had testified at the state murder trials® of the
six defendants. He refused to testify at the federal RICO
trial, however, claiming that the government had breached
its plea agreement with him, and consequently he had to
serve more time than he had been promised. Also, he asked
for immunity from prosecution for perjury as a condition of
his testifying. The government granted him use immunity,
that is immunity from the use of his testimony in the RICO
case to prove that his prior testimony was perjurious, but
granted him no immunity for any perjury he might commit
9. There were three separate trials in state court: 1) the
trial of Licavoli, Cisternino, and Carabbia; 2) the trial of Calandra,
Ciarcia and Lanci (not a defendant in this action); and 3) Li-
beratore’s trial The charges in all three trials were conspiracy
to murder Danny Greene, and Greene’s murder.
Al4
in the RICO trial itself. Ferritto still refused to testify and
the court held him in contempt.
[13] The court then granted the government’s motion
to read Ferritto’s testimony from the three state trials into
the record, finding that Ferr!‘to was “unavailable” within
the meaning of Fed. Rule Evid. 804(a). The court in-
structed the jury that Ferritto’s testimony in the state
trial of Licavoli, Cisternino and Carabbia was admissible
only against those three defendants; Ferritto’s testimony
from the trial of Calandra and Ciarcia was admissible only
as to those two, and Ferritto’s testimony in Liberatore’s
trial was admissible only against Liberatore. Ferritto’s
testimony in the first two trials was substantially the same.
Upon the request of Liberatore’s attorney the prosecution
did not read Ferritto’s full testimony from Liberatore’s
trial, but only the few lines that related specifically to
Liberatore.
Defendants make several arguments regarding Fer-
ritto’s testimony. First they claim that the government
was responsible for Ferritto’s failure to testify. He was
therefore not “unavailable” under Fed. Rule Evid. 804(a),
and his testimony was inadmissible. Rule 804(a) states,
in part, “[a] declarant is not unavailable as a witness if
his . . . absence is due to the procurement or wrongdoing
of the proponent of his statement for the purpose of pre-
venting the witness from attending or testifying” (em-
phasis added). The law is clear that Ferritto’s testimony,
if otherwise admissible, was not made inadmissible by
the government’s actions unless the government actually
sought to prevent the witness from testifying. Steele v.
Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982), cert. denied,
prwer US. ........, 103 S.Ct. 1501 (1983); United States v.
Seijo, 595 F.2d 116, 119-20 (2d Cir. 1979). This was
hardly the case. Ferritto was the government’s star wit-
Al5
ness. The government even offered him immunity from
possible perjury prosecution to induce him to testify.
There is no suggestion in the record that the government
breached its plea agreement in order to prevent Ferritto
from testifying at the RICO trial.
[14] Defendants further argue that Ferritto’s testimony
should not have been admitted because 1) defendants did
not have an adequate motive and opportunity to cross-
examine Ferritto in the state proceedings, and 2) admission
of the prior testimony violated the confrontation clause of
the sixth amendment.
Federal Rule of Evidence 804(b) (1) allows admission
of prior testimony if the issues in both cases are sufficiently
similar so as to give the party against whom the testimony
is offered “an opportunity and similar motive to develop
the testimony.” Here the issues in the cases were nearly
identical, since in the state cases the defendants were
charged with murder and conspiracy to commit murder,
and in the RICO prosecution these two acts constituted
the predicate acts for the RICO conviction. Defendants
argue that because of the additional “enterprise” element
that must be shown in a RICO prosecution their motive to
cross-examine was not the same here as in the state prose-
cutions. However, defendants have failed to point to any
matter that they would have raised in cross-examination
with respect to the enterprise element that they did not
raise in the prior proceedings.
Each defendant certainly had adequate motive to cross-
examine Ferritto with respect to testimony given in his
own trial The jury was carefully instructed to consider
against each defendant only the testimony that Ferrito
had given at the defendant’s own trial. We agree with
defendants that it may be humanly impossible for a juror
completely to compartmentalize multiple versions of an
Al6
event and apply each version only against a certain de-
fendant. However, this is not to say that evidence im-
plicating more than one defendant in a joint prosecution
may never be admitted with an instruction that it applies
only to a single defendant. In this case the testimony
in the state trials was substantially the same, so it is hard
to see how any of the defendants was prejudiced by ad-
mission of more than one version of the events. To the
extent that there are discrepancies in Ferritto’s testimony
the jury was made [15] aware of these by virtue of having
heard the different versions. The jury heard both Fer-
ritto’s direct testimony and cross-examinations. We cannot
say that Ferritto’s testimony was improperly admitted.
The above analysis applies as well with respect to de-
fendants’ confrontation clause argument. The Supreme
Court long ago held that admitting testimony of an un-
available witness does not violate the confrontation clause.
Mattox v. United States, 156 U.S. 237, 242-44 (1895). The
confrontation clause requires that a hearsay declarant be
unavailable, and that his statement bear some “indicia of
reliability.” Ohio v. Roberts, 448 U.S. 56, 65 (1980); Man-
cussi v. Stubbs, 408 U.S. 204, 213 (1974); California v.
Green, 399 U.S. 149, 161 (1970); Pointer v. Texas, 380 U.S.
400, 407 (1965). We have concluded that Ferritto was
unavailable. Ferritto has been cross-examined at length
by one or more of the defendants on all of the testimony
that was read to the jury and those cross-examinations
were also read to the jury. All of the defendants have
cross-examined Ferritto about the same set of facts. The
defendants’ motives for cross-examination at the state trials
and the RICO trial were substantially identical. We find
that the indicia of reliability necessary to satisfy the con-
frontation clause are present here and hold that Ferritto’s
testimony in the state prosecutions was properly admitted.
Al7
Defendants also claim that they were prejudiced by the
fact that the District Court had Ferritto’s testimony re-read
to the jury, upon the jury’s request, during jury delibera-
tions. It is within the judge’s discretion to re-read testi-
mony for a deliberating jury. Indeed, the cases in this
area generally challenge the judge’s decision not to have
the testimony re-read to the jury. See, e.g., United States
v. Toney, 440 F.2d 590, 591-92 (6th Cir. 1971); United
States v. Almonte, 594 F.2d 261, 265 (ist Cir. 1979). The
transcripts of Ferritto’s testimony are lengthy and com-
prised a large portion of the state’s case, and it is under-
standable that the jury felt a need to hear [16] them a
second time during deliberation. Defendants have failed
to show that the District Court abused its discretion in
allowing the transcripts to be read a second time.
VI. There Was Sufficient Evidence for the Jury to
Convict the Defendants
Defendant Carabbia argues that there was insufficient
evidence to show that defendants agreed to participate in
the affairs of the enterprise. We find this claim to be
wholly without merit, as the summary of facts recited
above—taken from testimony introduced at trial—demon-
strates.
Defendant Liberatore argues that there was insuf-
ficient evidence to establish that he and Ciarcia bribed
Ms. Rabinowitz to provide them with confidential FBI in-
formation and documents. This Court dealt fully with this
question and resolved it against Liberatore in United States
v. Lanci and Liberatore, 669 F.2d 391, 393 (6th Cir.), cert.
denied, 457 U.S. 1134 (1982), and we will not consider it
further here.
Al8
VII. Principles of Double Jeopardy Did Not Bar the
Government From Using Bribery as a Predicate
Offense for the RICO Convictions
Defendants Liberatore and Ciarcia were convicted in
federal court of bribing Ms. Rabinowitz. This bribery of-
fense was also used as a predicate act for the RICO con-
victions of these two defendants. Liberatore and Ciarcia
now claim that use of the bribery offense in the RICO
prosecution violated the double jeopardy clause of the fifth
amendment.
The Supreme Court articulated the analysis to be ap-
plied to statutory schemes in order to evaluate them
for double jeopardy purposes in Whalen v. United States,
445 U.S. 684 (1980). First, courts should apply the “Block-
burger test” articulated in Blockburger v. United States,
284 U.S. 299 (1932), in order to determine whether the
same act constitutes a violation of two distinct statutory
provisions. To see whether [17] there are two offenses or
only one the court must determine whether each provision
requires proof of a fact which the other does not. When
the offenses are the same under the Blockburger test,
Whalen holds that “cumulative sentences are not per-
mitted, unless elsewhere specifically authorized by Con-
gress.” 445 US. at 692.
Even if the predicate act of bribery and the RICO charge
fail the Blockburger test, which we do not decide,’ Con-
gress did specifically authorize cumulative sentences under
RICO. United States v. Hartley, 678 F.2d 961 (11th Cir.
1982); United States v. Anderson, 626 F.2d 1358, 1367 (8th
10. Cf. United States v. Anderson, 626 F.2d 1358, 1367 (8th
Cir. ~~ cert. denied, 450 U.S. 912 (1981), in which the court
that the enterprise element of the RICO offense con-
stitutes an element of the crime not required for the predicate
criminal acts.
Alg
Cir. 1980), cert. denied, 450 U.S. 912 (1981); United States
v. Aleman, 609 F.2d 298, 306 (7th Cir. 1979), cert. denied,
445 U.S. 946 (1980); United States v. Rone, 598 F.2d 564,
571 (9th Cir. 1979), cert. denied, 445 U.S. 946 (1980). As
the Rone court noted:
There is nothing in the RICO statutory scheme which
would suggest that Congress intended to preclude sep-
arate convictions or consecutive sentences for a RICO
offense and the underlying or predicate crimes which
make up the racketeering pattern. The racketeering
statutes were designed primarily as an additional tool
fo» the prevention of racketeering activity, which con-
‘s in part of the commission of a number of other
c.umes. The Government is not required to make an
election between seeking a conviction under RICO, or
prosecuting the predicate offenses only. Such a re-
quirement would nullify the intent and effect of the
RICO prohibitions.
598 F.2d at 571.
(18] This Court has ruled on a closely related question
in United States v. Morelli, 643 F.2d 402 (6th Cir.), cert.
denied, 453 U.S. 912 (1981). Morelli was convicted of two
counts of wire fraud, and these acts were used as predicate
offenses for a RICO conviction. Morelli complained that
he was subject to cruel and unusual punishment in vio-
lation of the eighth amendment because he was sen-
tenced to fifteen years for the RICO violation, in addition
to ten years for the wire fraud crimes."' We held that
Congress “may constitutionally make the commission of
crimes within a specified period of time and within the
course of a particular type of enterprise an independent
A20
criminal offense... .” 643 F.2d at 413. We now hold that
there was no violation of double jeopardy in trying defen-
dants Liberatore and Ciarcia for both the federal brib-
ery charge and the RICO charge.
VIII. The District Court Did Not Err in Its Evidentiary
Rulings
We have reviewed defendants’ challenges to various
evidentiary rulings made by the District Court in ad-
mitting:
(1) references to court-ordered electronic surveillance
of Licavoli in which the agent referred to Licavoli’s ac-
tivities as “criminal”;
(2) references to prosecution witnesses as being in the
Witness Protection Program as suggesting that defendants
had threatened the witnesses;
(3) references to plea bargaining agreements as sug-
gesting that the government vouched for the truthfulness
of the witness’ testimony;
(4) the admission of the co-conspirator statements
under Fed. Rule Evid. 804(d)(2)(E) as violating the con-
frontation clause of the sixth amendment.
We find all of these challenges to be without merit.
[19] IX. The District Court Did Not Err in Denying
Defendants’ Motion for Severance
Defendants Licavoli, Calandra and Cisternino argue
that the District Court erred in failing to grant their mo-
tions for severance at trial under Rule 14, Fed. R. Crim. Pro.
They argue that they were prejudiced by evidence of-
fered against other defendants at trial, and that the court’s
instructions to the jury could not have obviated that prej-
A2l1
udice. Defendants complain primarily of evidence of brib-
ery introduced against Liberatore and Ciarcia.
Rule 14 provides that severance may be granted if
substantial prejudice would result to an individual de-
fendant tried jointly with another."* The question of
whether to grant a motion for severance is committed to
the trial court’s discretion, and rulings under Rule 14
are reviewable only on abuse of discretion. United States
v. Goldfarb, 643 F.2d 422, 434 (6th Cir.), cert. denied, 454
U.S. 827 (1981); United States v. Bright, 630 F.2d 804, 813
(5th Cir. 1980); United States v. Mardian, 546 F.2d 973, 977
(D.C. Cir. 1976) (en banc); United States v. Marionneauz,
514 F.2d 1244, 1248 (5th Cir. 1975), cert. denied, 434 U.S.
903 (1977).
The general rule in conspiracy cases is that persons
indicted together should be tried together. United States
v. Robinson, 707 F.2d 872, 879 (6th Cir. 1983); United States
v. Dye, 508 F.2d 1226, 1236 (6th Cir.), cert. denied, 420
U.S. 974 (1975); United States v. Echeles, 352 F.2d 892,
896 (7th Cir. 1965). This is particularly the case when,
as here, offenses charged may be established against all
the defendants with the same evidence. United States v.
Hamilton, 689 F.2d 1262, 1275 [20] (6th Cir.), cert. denied,
lola US. ......... 103 S.Ct. 753 (1982); Dye, 508 F.2d at 1236;
United States v. McPartin, 595 F.2d 1321, 1333 (7th Cir.
1979). The potential prejudice to the defendant must be
balanced against competing societal goals of efficient and
speedy trials. United States v. Davis, 707 F.2d 880 (6th
12. Rule 14 provides in relevant part:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial to-
gether, the court may order an election or separate trials
of counts, grant a severance of defendants or provide whatever
other relief justice requires. * * *
A22
Cir. 1983); United States v. Kopituk, 690 F.2d 1289, 1317-
18 (11th Cir. 1982); Dye, 508 F.2d at 1236; United States v.
Rogers, 475 F.2d 821, 828 (7th Cir. 1973). However, a
single joint trial is impermissible if it violates a defen-
dant’s right to a fundamentally fair trial. Echeles, 352
F.2d at 896; Barton v. United States, 263 F.2d 894, 898
(5th Cir. 1959).
Courts have put a heavy burden on defendants seek-
ing severance, requiring a strong showing of prejudice.
Opper v. United States, 348 U.S. 84, 94 (1954); Hamilton,
689 F.2d at 1275; Bright, 630 F.2d at 813; United States
v. Marable, 574 F.2d 224, 231 (5th Cir. 1978). An especially
compelling showing is required in RICO prosecutions. As
the court noted in United States v. Provenzano, 688 F.2d
194, 199 (3d Cir.), cert. denied, ........ is Sonne , 103 S.Ct.
492 (1982), “in a case of this nature it is preferable to
have all of the parties tried together so that the full
extent of the conspiracy may be developed.”
Upon a careful review of the record we cannot say
that defendants have shown the compelling prejudice re-
quired for a granting of severance. At the heart of de-
fendants’ severance claim is the fact that some of them
were not named in all three of the predicate racketeering
acts for which evidence was introduced. We recently held
in Davis that this circumstance alone does not necessitate
severance. 707 F.2d at 883. The jury was carefully in-
structed that the evidence of bribery was admissible only
against Liberatore and Ciarcia, and there is nothing in
the record to indicate that the jurors were confused or
misled. Testimony regarding the other defendants in con-
nection with the circumstances of the bribery was tan-
gential, and overshadowed by the major role in the events
played by Liberatore and Ciarcia. The slight potential
[21] prejudice to defendants Licavoli, Calandra and Cis-
A23
ternino in this case by these tangential references is out-
weighed 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.
X. The District Court Did Not Err in Declining to
Excuse a Juror During the Trial
Mr. McCourt, a juror in defendants’ RICO trial, dis-
covered late in the presentation of the government’s case
that he was acquainted with one of the government’s
witnesses, a Ms. Weiss who managed the apartment house
involved in the aborted bombing attempt. Mr. McCourt
knew Ms. Weiss because his aunt and uncle lived in the
same building as Danny Greene, but had not known Ms.
Weiss’ last name until he saw her at trial.
Defendant Licavoli maintains that the juror “wilfully
concealed material facts bearing on his suitability.” How-
ever, Mr. McCourt had stated during jury selection that
he had had some contacts with Danny Greene. He could
not have concealed his acquaintance with the witness be-
cause he did not know that she would be a witness until
he saw her at trial. At that time he promptly informed
the court that he knew Ms. Weiss. The trial judge then
questioned Mr. McCourt regarding his ability to make
an impartial judgment, and Mr. McCourt said that he
felt he could. It is hard to see how Mr. McCourt’s nodding
acquaintance with a minor witness for the prosecution
could have seriously prejudiced defendants. Ms. Weiss
testified that Danny Greene lived with a woman in the
apartment building that she managed, and that she had
found a box and a bottle on the property. These facts
were not in dispute, and counsel for defendant: Licavoli
chose not to cross-examine Ms. Weiss. Mr. McCourt had
A24
personal knowledge that older people frequently congre-
gated in the lobby of the building, but this fact was also
not in dispute. Accordingly [22] we hold that the District
Court did not err in its failure to excuse Mr. McCourt.
XI. The District Court Did Not Err in Denying Lib-
eratore’s Motion for a New Trial
Defendant Liberatore appeals a denial of a motion
for a new trial on his federal bribery conviction. Libera-
tore argues that there were significant inconsistencies in
the testimony of witnesses who testified against him. The
District Court found these inconsistencies to be insubstan-
tial, and, having reviewed the record, we agree.
Defendants have raised a number of other claims,
which we do not discuss here. We have considered these
and find them without merit. We affirm defendants’ RICO
convictions and affirm the District Court’s denial of Lib-
eratore’s motion for a new trial.
[23] Merritt, Circuit Judge, concurring. I concur
in the clear and well reasoned opinion prepared by Judge
Kennedy.
It may seem strange for a federal court to uphold
convictions under a federal statute based on two underly-
ing predicate state offenses for which a defendant has
either been acquitted at state trials (the murder of Danny
Greene) or for which he could not be separately convicted
or punished under state law (conspiracy to murder Danny
Greene). But RICO is now unique. The normal rules
of construction do not apply to RICO. Although I had
earlier believed that normal canons of construction appli-
cable to other criminal statutes should be applied to RICO,
see United States v. Sutton, 605 F.2d 200 (1979), reversed
en banc, 642 F.2d 1001, 1042 (6th Cir. 1980) (Merritt,
A25
J., dissenting), the Supreme Court has now made it clear
that RICO is to be given the broadest and most expansive
possible interpretation in order to carry out Congressional
intent aimed at eliminating organized crime. See United
States v. Turkette, 452 U.S. 576 (1981) (RICO not limited
to infiltration of a legitimate “enterprise”); Russello v.
United States, 104 S.Ct. 296 (1983). In Russello, a unani-
mous Supreme Court has pointed to RICO as the only
federal criminal statute which should receive this kind
of broad and expansive interpretation:
The legislative history clearly demonstrates that
the RICO statute was intended to provide new weapons
of unprecedented scope for an assault upon organized
crime and its economic roots.... Further, Congress
directed, by § 904(a) of Pub. L. 91-452, 84 Stat. 947:
“The provisions of this title shall be liberally construed
to effectuate its remedial purposes.” So far as we
have been made aware, this is the only substantive
federal criminal statute that contains such a direc-
tive....
104 S.Ct. at 302. (emphasis added). Thus, RICO, liberally
construed as required by the Supreme Court, can reason-
ably be interpreted, and therefore should be interpreted,
[24] so that a defendant can be convicted even though
he has already been acquitted or convicted of the two
underlying offenses in state court and even though he
could not be convicted or punished for both offenses to-
gether under state law.
In view of the Supreme Court's decisions in Turkette
and Russello, I therefore agree with our Court's expansive
construction of RICO in sections II, ITI, IV and VII.
On the question of the admissibility of Ferrito’s prior
testimony in the three state trials, the existence of the
A26
“enterprise” element in RICO is not a bar to admissibility,
as defendants argue, because the “enterprise” element,
in light of the Supreme Court’s holding in Turkette, has
become a fiction. It has become synonymous with another
element of the offense, namely, the “pattern of racketeer-
ing activity,” i.e., the two underlying state offenses. The
“enterprise” element now adds nothing to the so-called
“pattern” element. The two predicate offenses are the
“enterprise.” All that is now required for a RICO offense
is the commission of two predicate offenses which the
state defines as separately chargeable and separately pun-
ishable. No further indicia of “enterprise” is now neces-
sary.
A27
INDICTMENT IN THE UNITED STATES
DISTRICT COURT
(Filed May 3, 1979)
No. CR79-103
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
V.
JAMES T. LICAVOLI,
a/k/a “Jack White”;
ANTHONY LIBERATORE;
JOHN P. CALANDRA;
PASQUALE CISTERNINO,
a/k/a “Butchie”;
RONALD CARABBIA;
THOMAS LANCI;
KENNETH CIARCIA;
Defendants.
Violations: T. 18, U.S.C. §§ 1962(d), 1963,
371 & 201(b) (3)
INDICTMENT
The Grand Jury charges that:
COUNT I
1. From in or about May, 1976, and continuing there-
after up to and including on or about March 3, 1978,
in the Northern District of Ohio, Eastern Division, and
A28
elsewhere, JAMES T. LICAVOLI, also known as “Jack
White”, ANTHONY LIBERATORE, JOHN P. CA-
LANDRA, PASQUALE CISTERNINO, also known as
“Butchie”’, RONALD CARABBIA, THOMAS LANCI, and
KENNETH CIARCIA, defendants herein and Anthony Del-
santer, also known as “Tony the Dope”, Aladena T. Fra-
tianno, also known as “Jimmy Fratianno”, Raymond Wil-
liam Ferritto, Ronald A. Guiles, also known as “Vic”, and
Louis J. Aratari, also known as “Tony”, named herein
as co-conspirators but not as defendants, unlawfully, will-
fully, and knowingly, did combine, conspire, confederate,
and agree together, with each other, and with other per-
sons unknown to the Grand Jury to commit an offense
against the United States; that is, to violate Title 18, United
States Code, § 1962(c).
(2] 2. It was a part of said conspiracy that JAMES
T. LICAVOLI, also known as “Jack White”, ANTHONY
LIBERATORE, JOHN P. CALANDRA, PASQUALE CIS-
TERNINO, also known as “Butchie”, RONALD CARAB-
BIA, THOMAS LANCI, and KENNETH CIARCIA, the
defendants herein, and Anthony Delsanter, also known
as “Tony the Dope”, Aladena T. Fratianno, also known
as “Jimmy Fratianno”, Raymond William Ferritto, Ronald
A. Guiles, also known as “Vic”, and Louis J. Aratari,
also known as “Tony”, named herein as coconspirators,
but not as defendants, being associated with an enterprise
engaged in and the activities of which affected interstate
commerce, that is, a group of individuals asseciated in fact
to control the criminal activities in various cities in the
Northern District of Ohio, by means of murder, bribery,
and activities, would unlawfully, willfully, and knowingly
conduct and participate, directly and indirectly, in the con-
duct of such enterprise’s affairs through a pattern of rack-
eteering activity, including murder, conspiracy to murder,
and bribery as defined in Title 18, United States Code,
A29
Sections 1961(1)(A), 1961(1)(B), and 1961(5), and as
hereinafter further described.
3. It was further a part of said conspiracy that the
defendants JAMES T. LICAVOLI, also known as “Jack
White”; ANTHONY LIBERATORE; and JOHN P. CAL-
ANDRA; and Anthony Delsanter, also known as “Tony the
Dope’, named herein as a coconspirator, but not as a de-
fendant, would engage in the commission, carrying on and
supervising of criminal activity in various cities in the
Northern District of Ohio and receive monies as a result of
such activity.
4. It was further a part of said conspiracy that the
defendants JAMES T. LICAVOLI, also known as “Jack
White”; ANTHONY LIBERATORE; JOHN P. CALAN-
DRA; PASQUALE CISTERNINO, also known as “Bur-
chie”; RONALD CARABBIA; THOMAS LANCT; and KEN-
NETH CIARCIA; and Anthony Delsanter, also known as
“Tony the Dope”; Aladena T. Fratianno, also known as
“Jimmy Fratianno”’, Raymond William Ferritto, Ronald
A. Guiles, also known as “Vic” and Louis Aratari, also
known as “Tony”, named herein as coconspirators, but not
as defendants, would commit, carry on, [3] and supervise,
criminal activity in various cities in the Northern District
of Ohio by use of acts and threats involving murder.
5. It was further a part of the conspiracy that the
defendants, the unindicted coconspirators, and other per-
sons would intercept wire communications, to wit, tele-
phone conversations, of one Daniel J. Greene for the pur-
pose of learning the planned whereabouts of Greene, and
did use said tape recordings in order to locate Greene.
6. It was further a part of the conspiracy that the
defendants JAMES T. LICAVOLI, also known as “Jack
White”; ANTHONY LIBERATORE; JOHN P. CALAN-
DRA; THOMAS LANCTI; and KENNETH CIARCIA, would
A30
corruptly give and loan and promise to give and loan
things of value, including approximately $15,900, more or
less, to Geraldine M. Rabinowitz, also known as Geraldine
Linhart, an employee of the Federal Bureau of Investiga-
tion of the United States Department of Justice in return
for confidential information contained in the official files
and records of the Federal Bureau of Investigation.
7. It was further a part of said conspiracy that Ray-
mond William Ferritto, named herein as a coconspirator
but not as a defendant, would travel from the State of
Pennsylvania to the Northern District of Ohio.
8. In furtherance of said conspiracy and to effectuate
the objects thereof, the defendants and others committed
the following acts and pattern of racketeering:
a. That from in or about June, 1976, up to and
including on or about May 17, 1977, in the Northern
District of Ohio, and elsewhere the defendants, JAMES
T. LICAVOLI, also known as “Jack White”; JOHN
P. CALANDRA; PASQUALE CISTERNINO, also
known as “Butchie”; and RONALD CARABBIA; and
Anthony Delsanter, also known as “Tony the Dope”,
Aladena T. Fratianno, also known as “Jimmy Frati-
anno”, and Raymond William Ferritto, named herein
as co-murder [4] one John Nardi in violation of
Ohio Revised Code, § 2923.01, a felony punishable
by imprisonment of more than one year.
b. From in or about June, 1976, up to and in-
cluding on or about October 6, 1977, in the Northern
District of Ohio, and elsewhere, defendants JAMES
T. LICAVOLI, also known as “Jack White”; AN-
THONY LIBERATORE; JOHN P. CALANDRA; PAS-
QUALE CISTERNINO, also known as “Butchie”;
RONALD CARABBIA; THOMAS LANCI; and KEN-
NETH CIARCIA, and Anthony Delsanter, also known
A31
as “Tony the Dope”, Aladena T. Fratianno, also known
as “Jimmy Fratianno”, Raymond William Ferritto,
Ronald A. Guiles, also known as “Vic”, and Louis
J. Aratari, also known as “Tony”, named herein as
coconspirators but not as defendants, conspired to mur-
der one Daniel J. Greene, in violation of Ohio Revised
Code, § 2923.01, a felony punishable by imprisonment
of more than one year.
c. On or about October 6, 1977, in the Northern
District of Ohio, the defendants JAMES T. LICAVOLI,
also known as “Jack White’; ANTHONY LIBERA-
TORE; JOHN P. CALANDRA; PASQUALE CISTER-
NINO, also known as “Butchie”’; RONALD CARAB-
BIA; THOMAS LANCI; and KENNETH CIARCIA;
and Raymond William Ferritto, Aladena T. Fratianno,
also known as “Jimmy Fratianno”, Ronald A. Guiles,
also known as “Vic”, and Louis J. Aratari, also known
as “Tony”, named herein as coconspirators but not
as defendants, did murder and aid and abet in the
murder of Daniel J. Greene by means of an explosive
device in violation of Ohio Revised Code, § 2903.01.
[5] d. In or about June or July, 1977, the exact
date being to the Grand Jury unknown, in the Northern
District of Ohio, the defendants JAMES T. LICAVOLI,
also known as “Jack White’; ANTHONY LIBERA-
TORE; JOHN P. CALANDRA; PASQUALE CISTER-
NINO, also known as “Butchie”; RONALD CARABBIA;
THOMAS LANCI; and KENNETH CIARCIA ocor-
ruptly did, directly and indirectly, give things of
value, including approximately $1,000, more or less,
to Geraldine Rabinowitz, also known as Geraldine
Linhart, an employee of the Federal Bureau of In-
vestigation of the United States Department of Justice,
in return for confidential information contained in
A32
the official files and records of the Federal Bureau
of Investigation, in violation of Title 18, United States
Code Section 201(b) (3).
e. In or about October, 1977, the exact date being
to the Grand Jury unknown, in the Northern District
of Ohio, the defendants JAMES T. LICAVOLI, also
known at “Jack White”; ANTHONY LIBERATORE;
JOHN P. CALANDRA; PASQUALE CISTERNINO,
also known as “Butchie”’; RONALD CARABBIA;
THOMAS LANCI; and KENNETH CIARCIA ocor-
ruptly did, directly and indirectly, give things of value,
including approximately $14,900, more or less, to
Geraldine Rabinowitz, also known as Geraldine Lin-
hart, an employee of the Federal Bureau of Investiga-
tion of the United States Department of Justice, in
return for confidential information contained in the
official files and records of the Federal Bureau of In-
vestigation, in violation of Title 18, United States Code,
Section 201(b) (3).
[6] 9. The respective interests of defendants JAMES
T. LICAVOLI, also known as “Jack White”; ANTHONY
LIBERATORE; JOHN P. CALANDRA; PASQUALE
CISTERNINO, also known as “Butchie”; RONALD CAR-
ABBIA; THOMAS LANCI; and KENNETH CIARCIA in
the assets of the previously described group associated in
fact, constitute the present form of an enterprise the de-
fendants conspired to conduct and participate in, directly
and indirectly, in violation of Title 18, United States Code,
§ 1962(d), and are to their full extents subject to forfeiture
to the United States of America under the provisions of
Title 18, United States Code, § 1963(a).
All in violation of Title 18, United States Code,
$§ 1962(d) and 1963.
A33
{7] The Grand Jury further charges that:
COUNT II
1. From in or about December, 1976, and continuously
thereafter, up to and including the 9th day of March, 1978,
in the Northern District of Ohio, Eastern Division, and
elsewhere, JAMES T. LICAVOLI, also known as “Jack
White”; ANTHONY LIBERATORE; JOHN P. CALAN-
DRA; PASQUALE CISTERNINO, also known as “Butchie”;
RONALD CARABBIA; THOMAS LANCI; and KENNETH
CIARCIA, defendants herein, and Anthony Delsanter, also
known as “Tony the Dope” and Raymond William Fer-
ritto, named herein as coconspirators but not defendants,
willfully and knowingly did combine, conspire, confederate,
and agree together, with each other, and with diverse other
persons to the Grand Jury unknown to commit an offense
against the United States; that is, to corruptly, directly
and indirectly, give things of value to Jeffrey Rabinowitz,
also known as Jeffrey Rabin, and to Geraldine Rabinowitz,
also known as Geraldine Linhart, an employee of the Fed-
eral Bureau of Investigation of the United States Depart-
ment of Justice, with the intent to induce Geraldine Ra-
binowitz, also known as Geraldine Linhart to do an act
in violation of her lawful duty in respect to the disclosure
of confidential information contained in the official files
and records of the Federal Bureau of Investigation, in
violation of Title 18, United States Code, Section 201(b) (3);
and to defraud the United States by depriving the Federal
Bureau of Investigation of the United States Department
of Justice of and concerning its right to have its employees
free to transact the official business of the United States
unhindered, unhampered, unobstructed, and unimpaired
by the exertion upon them of dishonest, corrupt, unlawful,
improper, and undue pressure and influence.
A34
[8] 2. It was a part of the conspiracy that the defen-
dants would ask Geraldine Rabinowitz also known as
Geraldine Linhart, to use her position with the Federal
Bureau of Investigation in order to obtain confidential in-
formation concerning defendants JAMES T. LICAVOLI,
also known as “Jack White’; ANTHONY LIBERATORE;
THOMAS LANCI; KENNETH CIARCIA and other per-
sons; that the defendants did receive such confidential in-
formation from Geraldine Rabinowitz, also known as
Geraldine Linhart; and that the defendants agreed to give
and did give things of value to Geraldine Rabinowitz, also
known as Geraldine Linhart in return for said confidential
information.
3. It was further a part of the conspiracy that the
defendants would exchange the information obtained from
Geraldine Rabinowitz, also known as Geraldine Linhart
among themselves and with other persons.
OVERT ACTS
In furtherance of the conspiracy and to effect the
objects thereof, the defendants and coconspirators per-
formed the following overt acts in the Northern District
of Ohio, Eastern Division:
1. In or about December, 1976, KENNETH CIARCIA
met with Geraldine Rabinowitz, also known as Geraldine
Linhart, and Jeffrey Rabinowitz, also known as Jeffrey
Rabin.
2. In or about the Spring of 1977, Geraldine Rabino-
witz, also known as Geraldine Linhart and Jeffrey Rab-
inowitz, also known as Jeffrey Rabin met with KENNETH
CIARCIA and turned over to CIARCIA an official report
of the Federal Bureau of Investigation concerning JAMES
T. LICAVOLI, also known as “Jack White”.
A35
[9] 3. In or about June, 1977, ANTHONY LIBERA-
TORE and KENNETH CIARCIA met with Geraldine Rab-
inowitz, also known as Geraldine Linhart and gave and
loaned her $1,000.
4. In or about July or August, 1977, JAMES T. LICA-
VOLI, also known as “Jack White”, and Anthony Del-
santer, also known as “Tony the Dope”, met with Raymond
William Ferritto in Warren, Ohio.
5. Between on or about the 2nd day of August, 1977,
and on or about the 6th day of August, 1977, JAMES T.
LICAVOLI, also known as “Jack White”, had in his pos-
session a copy of portions of a report of the Federal Bureau
of Investigation previously supplied to KENNETH CIAR-
CIA by Geraldine Rabinowitz, also known as Geraldine
Linhart.
6. In or about August or September, 1977, JOHN
CALANDRA and PASQUALE CISTERNINO, also known
as “Butchie” met with Raymond William Ferritto.
7. On or about the 24th day of September, 1977,
ANTHONY LIBERATORE met with Geraldine Rabino-
witz, also known as Geraldine Linhart.
8. On or about the 13th day of October, 1977, AN-
THONY LIBERATORE, THOMAS LANCI, and KEN-
NETH CIARCIA met with Geraldine Rabinowitz, also
known as Geraldine Linhart and Jeffrey Rabinowitz, also
known as Jeffrey Rabin and gave and loaned them ap-
proximately $15,000, more or less.
9. Between in or about August, 1977, and the 5th
day of December, 1977, JOHN P. CALANDRA had in his
possession a portion of a report of the Federal Bureau of
Investigation previously supplied to KENNETH CIARCIA
by Geraldine Rabinowitz, also known as Geraldine Lin-
hart.
“.
A36
{10} 10. In or about February, 1978, ANTHONY
LIBERATORE met with Geraldine Rabinowitz, also known
as Geraldine Linhart.
All in violation of Title 18, United States Code, Sec-
tion 371.
[11] The Grand Jury further charges that:
COUNT III
In or about June or July, 1977, the exact date being
to the Grand Jury unknown, in the Northern District of
Ohio, Eastern Division, JAMES T. LICAVOLI, also known
as “Jack White’; ANTHONY LIBERATORE; JOHN P.
CALANDRA; PASQUALE CISTERNINO, also known as
“Butchie”; RONALD CARABBIA; THOMAS LANCTI; and
KENNETH CIARCIA, the defendants herein, corruptly
did, directly and indirectly, give, offer and promise, things
of value, to Jeffrey Rabinowitz, also known as Jeffrey
Rabin, named herein as a co-accomplice but not as a de-
fendant, and to Geraldine Rabinowitz, also known as Ger-
aldine Linhart, an employee of the Federal Bureau of In-
vestigation of the United States Department of Justice,
with the intent to induce Geraldine Rabinowitz, also known
as Geraldine Linhart to do an act in violation of her law-
ful duty in respect to the disclosure of confidential in-
formation contained in the official files and records of the
Federal Bureau of Investigation.
All in violation of Title 18, United States Code, Sec-
tion 201(b) (3).
A37
[12] The Grand Jury further charges that:
COUNT IV
In or about October, 1977, the exact date being to
the Grand Jury unknown, in the Northern District of
Ohio, Eastern Division, JAMES T. LICAVOLI, also known
as “Jack White’; ANTHONY LIBERATORE; JOHN P.
CALANDRA; PASQUALE CISTERNINO, also known as
“Butchie”; RONALD CARABBIA; THOMAS LANCTI; and
KENNETH CIARCIA, the defendants herein, corruptly
did, directly and indirectly, give, offer and promise, things
of value, to Jeffrey Rabinowitz, also known as Jeffrey
Rabin, named herein as a co-accomplice but not as a de-
fendant, and to Geraldine Rabinowitz, also known as
Geraldine Linhart, an employee of the Federal Bureau of
Investigation of the United States Department of Justice,
with the intent to induce Geraldine Rabinowitz, also
known as Geraldine Linhart, to do an act in violation of
her lawful duty in respect to the disclosure of confidential
information contained in the official files and records of
the Federal Bureau of Investigation.
All in violation of Title 18, United States Code, Sec-
tion 201(b) (3).
/s/ JAMES R. WILLIAMS
United States Attorney
Northern District of Ohio
/s/ Sreven R. OLan
Special Attorney
Criminal Division
MEMORANDUM AND ORDER OF THE UNITED
STATES DISTRICT COURT
(Filed March 5, 1982)
CR79-103
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
V.
JAMES T. LICAVOLI, et al.,
Defendants.
MEMORANDUM AND ORDER
Tuomas, Senior Judge
In Count I, the remaining count of the indictment,
defendants have been charged with conspiracy under 18
US.C. §1962(d) to violate 18 U.S.C. §1962(c) both of
which sections are part of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. §1961, et
seq."
1. Section 1962:
(c) It shall be w.awful for any person employed by
or associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct
or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity
or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to
violate any of the provisions of subsections (a), (b), or (c)
of this section.
A39
Defendants Licavoli and Calandra, separately, and de-
fendants Cisternino and Carabbia jointly move for dis-
missal of Count I. It is claimed that their [2] prosecution
is barred by collateral estoppel under the Double Jeopardy
Clause by virtue of their acquittal on Counts II, II, and
IV of the indictment during the June - July 1980 trial.
Convicted of Counts II and IV (Counts I and III at trial),
but acquitted of Count III (Count II at the trial), de-
fendant Liberatore also moves for dismissal on Count I
based on the Double Jeopardy Clause and collateral es-
toppel by virtue of the jury’s verdicts.
As the background of these motions it is apt to repeat
the history of criminal prosecutions, state and federal,
which involve these defendants as that history is set forth
in this court’s memorandum of October 10, 1979. In that
ruling this court overruled double jeopardy and collateral
estoppel motions pressed by defendants.
I.
A.
On October 6, 1977, Daniel Greene was killed when
a car parked next to his in a parking lot exploded
as he was entering his car. In connection with that
death, several individuals, including defendants in this
action Licavoli, Cisternino, Carabbia, and Calandra,
were indicted on December 5, 1977 by a state grand
jury for aggravated arson [O.R.C. §2909.02]; aggra-
vated murder, with specifications [O.R.C. §2903.01];
engaging in organized crime [O.R.C. §2923.04]; and
conspiracy to commit aggravated murder and aggra-
vated arson [3] [O.R.C. 2923.01]. These same indi-
viduals, except Raymond Ferritto, were indicted by
a federal grand jury on January 6, 1978 for conspiracy
A40
to violate 18 U.S.C. §1962(c) in violation of 18 U.S.C.
§1962(d).
On March 7, 1978, another group of individuals,
including defendants in this action Lanci, Ciarcia, and
Liberatore, were indicted by a state grand jury for
aggravated murder, with specifications, aggravated
arson, and engaging in organized crime, also in con-
nection with the death of Daniel Greene. In March
1978, a complaint charging defendant Lanci with a
violation of 18 U.S.C. §1962(d) was issued by a federal
magistrate. Although a preliminary hearing was held
on March 7, 1978 and defendant Lanci was bound over
to the grand jury, he was not indicted until the present
indictment was handed down in May 1979.
Defendants Licavoli, Cisternino, and Carabbia were
tried on the state charges in February through May
1978. The state court had earlier dismissed both con-
spiracy charges against defendants Licavoli, Cisternino,
Carabbia, and Calandra upon a motion by the state.
Defendant Licavoli was acquitted of all other charges;
defendants Cisternino and Carabbia were acquitted of
engaging in organized crime and of the second specifi-
cation under the aggravated murder count (that the
murder was committed for hire), but were convicted
of aggravated arson, aggravated murder, and of the
first specification [4] (that the murder was committed
in the course of committing aggravated arson).
Defendants Calandra, Ciarcia, and Lanci were
tried in state court in June, July and August 1978. The
trial judge ordered a judgment of acquittal on the
organized crime charge. Defendant Calandra was ac-
quitted of the other charges. Defendants Ciarcia and
Lanci were convicted of aggravated murder, but ac-
quitted of the specifications and of aggravated arson.
A4l
The federal indictment was voluntarily dismissed
by the United States on September 7, 1978. The dis-
missal occurred during the pretrial stage of the case
but just shortly before the scheduled trial date. [Foot-
notes omitted. ]
Count I of a four-count indictment returned on May
3, 1979 recharged the defendants with a section 1962(d)
(RICO) conspiracy charge as delineated above. Not in-
cluded in the original federal indictment, count II charged
the defendants with a conspiracy under 18 U.S.C. §371 to
violate 18 U.S.C. §201(b) (3) (the federal bribery statute),
and counts III and IV charged substantive violations of the
same federal bribery statute.
As predicate acts in support of the RICO charge’
the government alleged that the defendants (except [5]
defendant Liberatore) conspired to murder one John
Nardi; conspired to murder one Daniel Greene; murdered
and aided and abetted in the murder of Daniel Greene;
“corruptly did, directly and indirectly, give things of value,
approximately $1,000, more or less to Geraldine Rabin-
owitz;” and “corruptly did, directly and indirectly, give
things of value, including approximately $14,900, more or
less, to Geraldine Rabinowitz... .”
On October 18, 1979 this court dismissed Count I, hold-
ing that under United States v. Sutton, 605 F.2d 260 (6th
Cir. 1979), it failed to state an offense under 18 U.S.C.
81962. On December 21, 1979 the count was reinstated
pending a rehearing of Sutton en banc and final resolution
2. The phrase “pattern of racketeering activity” found in
section 1962(c) and incorporated into section 1962(d) is defined
as “requir[ing] at least two acts of racketeering activity, one of
which after the effective date of this chapter and the
bet te eee ee Se ee ee ee
of imprisonment) after the commission of a prior act of racketeer-
ing activity.” 18 U.S.C. §1961(5).
A42
of the issue by the Supreme Court; the trial of the count,
however, was severed from the trial of Counts II-IV.
The selection of the jury in the trial of Counts II-IV
commenced on May 19, 1980. Opening statements began
June 9. On June 23, at the end of the presentation of the
government’s evidence, the court directed a verdict for
defendants Cisternino and Carabbia on all counts and for
defendant Calandra on Count III (Count II at trial) and
otherwise denied the directed verdict motions of the de-
fendants. The jury returned its verdict on July 3, 1980.
Defendants Licavoli and Calandra were acquitted on all
counts. Defendants Liberatore and Lanci were acquitted
on Count III (Count II at the trial) but convicted on Counts
II andIV (Counts I and III at the trial).’
[6] Subsequent to the federal prosecution, defendant
Liberatore was tried in state court for aggravated murder
and aggravated arson in the murder of Daniel Greene.
On November 6, 1980 the jury acquitted Liberatore on
the aggravated arson charge; there was a hung jury on
the aggravated murder charge, and a mistrial was declared.
Defendant Liberatore appealed to the Eighth District
Court of Appeals, Cuyahoga County, Ohio, the trial court’s
February 8, 1980 denial of defendant’s motion to enter
a judgment of acquittal and to dismiss the second and
remaining charge of aggravated murder within the indict-
ment and, alternatively, to bar a retrial of the aggravated
murder charge as violative of defendant’s right against
double jeopardy. By a two to one vote the court of appeals
on January 14, 1982 reversed the trial court.‘
3. Defendant Ciarcia hed pled guilty to all counts.
4. The court (Judges Stillman and Day) concluded:
[We hold that under the facts and indictment in this case,
the double jeopardy provisions of the United States and Ohio
(Continued on following page)
A43
[7] I.
Double Jeopardy and Collateral Estoppel—
Prior State Prosecutions
Defendants raise objections to the current prosecution
on the grounds of double jeopardy and collateral estoppel.°
The basis for their position is the requirement of 18 U.S.C.
§1962(c), and, hence, by incorporation, section 1962(d),
of a showing of “a pattern of racketeering activity.”
Footnote continued—
Constitutions preclude a subsequent prosecution for aggravated
murder where the defendant-appellant has been acquitted
of aggravated arson, an element specifically made necessary
through the language of the aggravated murder and indict-
ment. A second prosecution on the aggravated murder charge
would necessitate a complete and identical relitigation of
factual issues already resolved in the first trial.
In dissent, Judge Parrino concluded:
[T]he jury, in acquitting appellant of aggravated arson, could
rationally have based its verdict on the fact that the state did
not prove that appellant had actual knowledge that ag-
gravated arson (i.e., bombing) was to be committed.? His
acquittal of aggravated arson merely resolved the issue that
appellant was not an accomplice to aggravated arson. A jury
has not yet decided the issue of whether the appellant was
an accomplice to a scheme to murder Daniel Greene and
whether that ultimate objective was accomplished by the
principals by means of aggravated mn. Thus, collateral
estoppel does not preclude a secon@ trial on the issue of
whether appellant was an accomplice to aggravated murder
where the principals Carabbia and Ferrito committed the
underlying aggravated arson to accomplish the killing and
thereby achieved the goal of all the co-conspirators.
2. Aggravated arson is defined in R.C. 2909.02, which
provides in part:
“(A) No person, by means of fire or explosion, shall
knowingly:
“(1) Create a substantial risk of serious physical harm
to any person... .”
The complicity statute, R.C. 2923.03, requires the
to act with the kind of culpability required for the commis-
sion of the underlying offense (in this case “knowingly”).
5. The individual motions are styled as motions to dismiss
the indictment or motions to exclude evidence.
A44
“Racketeering activity” is defined, in part, as “any act
or threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion or dealing [8] in narcotic or
other dangerous drugs, which is chargeable under State
law and punishable by imprisonment for more than one
year....” 18 U.S.C. §1961(1)(A). “Pattern of racketeer-
ing activity” is defined, in part, as requiring “at least
two acts of racketeering activity....” 18 U.S.C. §1961(5).
See n.2, supra. Defendants urge that since among the
“predicate acts” asserted by the government there are
state offenses for which they have already been tried, the
retrial of those acts to prove a RICO offense is barred
by double jeopardy and collateral estoppel.
Prior to the 1980 federal trial, the affected defendants
moved to bar the federal prosecution on double jeopardy
grounds by reason of the state prosecution. This court
denied all motions based on that argument in United States
v. Licavoli, No. CR79-103 (N.D. Ohio, memorandum and
order filed October 10, 1979), relying upon Bartkus v.
Illinois, 359 U.S. 121 (1959), and Abbate v. United States,
359 U.S. 187 (1959), and the dual sovereignty rule estab-
lished therein.
The defendants argue here, as they did in the earlier
motions, that federal authorities participated in and con-
trolled the state prosecution to such an extent that the
state prosecution became a federal one, hence barring an-
other federal prosecution for the same acts.
Accepting as true for purposes of deciding the motion
that “the federal government’s involvement in the state
litigation was as the defendants characterize [9] it,” this
court in its October 10, 1980 memorandum found that
these circumstances “do not sustain a conclusion that the
state prosecution was a sham and a cover fur a federal
prosecution and thereby in essential fact another federal
A45
prosecution.” The court concluded that, given the serious-
ness of the charges and the state’s interest in enforcing
its criminal statutes, “the bringing of the state prosecution
{could not] be said to be of the federal government’s
doing.” Slip op. at 13.
Furthermore, this court concluded that “[t]he exis-
tence of federal-state cooperation does not change this con-
clusion or establish that the conducting, rather than the
bringing, of the state prosecution was such that the fed-
eral government should be bound by its result.” Id. Such
a conclusion was mandated by Bartkus and reached by the
courts in United States v. Johnson, 516 F.2d 209 (8th Cir.),
cert, denied, 423 U.S. 859 (1975), and United States v. Rich-
ardson, 580 F.2d 946 (9th Cir. 1978), cert. denied, 439 U.S.
1068 (1979). This court concluded:
The record of this case to date reveals that fed-
eral agencies, particularly the FBI, apparently had
an on-going investigation of several individuals con-
nected with the case including Daniel Greene and some
of the defendants. It is not surprising then that the
federal government would be in possession of evidence
relevant to the state charges and that federal agents
would be called to testify at the state trial. The fact
that the state made use of this evidence does not estab-
lish that its prosecution was simply a sham or a cover
for a federal prosecution.
Slip op. at 14.
{19} Relying upon Ashe v. Swenson, 397 US. 436
(1970), defendants argued that federal prosecutors were
collaterally estopped from relitigating issues determined in
the state litigation. This court pointed out that Ashe held
that the doctrine of collateral estoppel “means simply that
when an issue of ultimate fact has once been determined
A46
by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.”
Slip op. at 15-16, quoting 397 U.S. at 443. Since the court
had determined in its double jeopardy ruling that the fed-
eral government was “not a party or privy to the state
litigation, the principles of collateral estoppel [did] not
preclude it from litigating issues litigated in the state
case.” Slip op. at 16.
Defendants took an interlocutory appeal from the
court’s adverse ruling under Abney v. United States, 431
U.S. 651 (1977); however, the court proceeded to trial
after ruling that the appeal was frivolous. In an un-
published order of July 11, 1980 (627 F.2d 1093 (6th Cir.
1980)), the court of appeals found no double jeopardy,
applying the “dual sovereignty” doctrine. Slip op. at p.5.
On appeal from the trial conviction, the court of appeals
concluded that “the district court had jurisdiction to pro-
ceed, having determined that the interlocutory appeal
lacked any ‘colorable foundation’.” United States v. Lanci,
Nos. 80-5239 and 80-5246 (6th Cir. filed January 12, 1982),
slip op. at 5.
Defendants, including defendant Liberatore whose
state prosecution occurred subsequent to this court’s [11]
October 10, 1979 order, have failed to bring to this court’s
attention any new law or new facts which would alter
its prior holding. The doctrine of dual sovereignty con-
tinues to apply, and this court holds that the prosecution
of defendants under the RICO statute is not barred by
their previous state prosecutions.
ITI.
Double Jeopardy—Prior Federal Prosecution
In United States v. Turkette, 49 U.S.L.W. 4743 (June
17, 1981), the Court concluded that “neither the language
A47
nor structure of RICO limits its application to legitimate
‘enterprises’” and that “[a]pplying it also to criminal or-
ganizations does not render any portion of the statute
superfluous nor does it create any structural incongruities
within the framework of the Act.” In the present case, as
in Turkette, a section 1962(d) conspiracy to violate section
1962(c) is charged; and the defendants are charged in the
indictment with “being associated with an enterprise en-
gaged in and the activities of which affected interstate
commerce, that is, a group of individuals associated in
fact... .” It is instructive, therefore, to look at the elements
(apart from proof of the conspiracy) which Turkette holds
must be proved in a RICO conspiracy case.
Referring to section 1962(c), the violation of which
is charged as the object of the conspiracy, the Court de-
clared in order to secure a conviction under RICO, the
government must prove both the existence of an “enter-
prise” and the connected “pattern of racketeering activity.”
It held that the element of an [12] “enterprise,” “for pres-
ent purposes a group of persons associated together for a
common purpose of engaging in a course of conduct,” is
proved “by evidence of an ongoing organization, formal or
informal, and the evidence that the various associates func-
tion as a continuing unit.” The Court further held that
“(t)he ‘enterprise’ is not the ‘pattern of racketeering ac-
tivity;’ it is an entity separate and apart from the pattern
of activity in which it engages.” A pattern of racketeer-
ing is “proved by evidence of the requisite number of acts
of racketeering committed by the participants in the en-
terprise.”
Defendants argue that their prior federal prosecution
under Counts II-IV bars prosecution on the RICO count.
Again, the basis for their position is the statutory require-
ment of section 1962(c) and, hence, section 1962(d), of
A48
a showing of “a pattern of racketeering activity.” See
part Il, supra, at p.7. 18 U.S.C. §1961(1)(B) defines
“racketeering activity” as “any act which is indictable
under any of the following provisions of Title 18, United
States Code: Sections 201 (relating to bribery)....” De-
fendants argue that the prior federal prosecution of the
bribery counts bars on double jeopardy grounds the cur-
rent retrial of those acts to support the RICO count.
The Fifth Amendment protects a criminal defendant
from being held twice in jeopardy for committing the
same offense. In Blockburger v. United States, 284 U.S.
299 (1932), the Court set forth a test for determining
{13} whether there is in reality one, or more than one,
offense in issue:
The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statu-
tory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not.
Id. at 304. There is nothing in the Blockburger test, or the
double jeopardy clause, which bars the trial of a defen-
dant for two offenses which arise out of one criminal
overt act or conspiracy even if substantially the same facts
are used to prove each offense. United States v. DePalma,
461 F.Supp. 778, 781 (S.D.N.Y. 1978). The inquiry to be
undertaken is one of statutory intent, i.e., an inquiry into
whether Congress intended to establish two separate of-
fenses. The Blockburger test “is a rule of statutory con-
struction, not a constitutional talisman.” Whalen v. United
States, 445 U.S. 684, 708 (1980) (Rehnquist, J., dissenting).
See also Iannelli v. United States, 420 U.S. 770, 784, n.17
(1975) (“The test articulated in Blockburger v. United
States, 284 U.S. 299 (1932), serves a... . function of iden-
A49
tifying congressional intent to impose separate sanctions for
multiple offenses arising in the course of a single act or
transaction.”)
The purpose of the Organized Crime Control Act of
1970 was stated thus:
It is the purpose of this Act to seek the eradication
of organized crime in the United States by strengthen-
ing the legal tools in the evidence-gathering process,
by establishing new penal prohibitions, and by pro-
viding enhanced sanctions and new remedies to deal
with the unlawful activities of those engaged in or-
ganized crime.
{14] [1970] U.S. Code Cong. & Admin. News 1073, 1073
(emphasis added). The clear import of the above language
is that RICO was enacted as a separate offense to serve
as an additional tool for law enforcement bodies to use in
combatting organized crime. United States v. Boylan, 620
F.2d 359, 360 (2d Cir.), cert. denied, 449 U.S. 833 (1980).
The language in no way suggests that the Act was de-
signed to replace or supercede criminal acts already
proscribed.
Congress listed as part of its statement of findings:
(5) organized crime continues to grow . . . because
the sanction and remedies available to the Government
are unnecessarily limited in scope and impact.
Id. RICO was enacted to broaden the scope and impact
of the sanctions and remedies available to the government
in its attempt to curtail organized crime.
For a court to conclude that the government must
choose between prosecuting a defendant on a RICO charge
or on a predicate act would undermine the stated purposes
and scope of the Act. Under such conditions, “[a] con-
A50
viction under RICO would, in fact, grant immunity for
the offenses charged in the ‘pattern of racketeering’,”
United States v. Rone, 598 F.2d 564, 572 (9th Cir. 1979),
cert. denied sub nom. Little v. United States, 445 U.S. 946
(1980), or a conviction on a predicate crime would bar a
later RICO conviction. That the latter was not intended
is apparent from the statute itself. The complete defini-
tion of “pattern of racketeering activity” reads:
[15] “[PJattern of racketeering activity” requires at
least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and
the last of which occurred within ten years (excluding
any period of imprisonment) after the commission of
a prior act of racketeering activity.
18 U.S.C. §1961(5) (emphasis added). “It is implicit in
that provision that even though a defendant has already
served time for the first predicate offense that first offense
may still be used as an element in establishing a RICO
‘pattern’.” United States v. Aleman, 609 F.2d 298, 306
(7th Cir. 1979), cert. denied, 445 U.S. 946 (1980). Accord,
United States v. DePalma, 461 F.Supp. 778, 786-87 (S.D.
N.Y. 1978).
It is apparent to this court that in enacting 18 U.S.C.
§1961, et seqg., Congress intended to establish criminal of-
fenses separate and apart from the predicate crimes un-
derlying the “pattern of racketeering activity.” Because
the offense charged under 18 U.S.C. §1962(d) is thus sep-
arate from the offense litigated in the prior trial, 18 U.S.C.
§201, et seq., defendants’ motions to dismiss based upon
claims of double jeopardy are overruled.
Limiting the motions of the defendants to the issue
of traditional double jeopardy—apart from the collateral
estoppel issue considered in part V, infra—the previous
A51
federal bribery prosecution and particularly the convic-
tions of defendant Liberatore, Lanci, and Ciarcia do not
warrant application of the double jeopardy clause.
{16} IV.
Collateral Estoppel—Prior Federal Prosecution
Defendants argue that the doctrine of collateral estop-
pel bars the government from relitigating the factual bases
of any of the federal counts on which they were acquitted.
They rely upon Ashe v. Swenson, 397 U.S. 436 (1970),
United States v. Mespoulede, 597 F.2d 329 (6th Cir. 1979),
and Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972),
to support their positions.
In Ashe petitioner had been charged, along with three
other men, in the robbery of six poker players. He was
tried for the robbery of one of the players, Knight, and ac-
quitted by the jury as “not guilty due to insufficient evi-
dence.” Six weeks later petitioner was tried for the rob-
bery of another participant, Roberts, the trial court having
overruled his motion to dismiss. Petitioner was found
guilty. The conviction was affirmed through the state ap-
peals process. The district court and court of appeals af-
firmed the conviction in petitioner’s habeas corpus proceed-
ing.
The Supreme Court reversed, holding that the doctrine
of collateral estoppel is embodied in the Fifth Amendment’s
guarantee against double jeopardy: “For whatever else
that constitutional guarantee may embrace, it surely pro-
tects a man who has been acquitted from having to ‘run
the gauntlet’ a second time.” 397 U.S. at 445-46 (citations
omitted). There was no question that petitioner could
have been charged with six offenses and, if found guilty,
given six punishments. The question [17] was whether,
A52
“after a jury determined by its verdict that petitioner was
not one of the robbers, the State could constitutionally
hale him before a new jury to litigate the issue again.”
Id. at 446.
The Court set forth the line of inquiry to be under-
taken by the trial court:
Where a previous judgment of acquittal was based
upon a general verdict, as is usually the case, this
approach requires a court to “examine the record of
a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and con-
clude whether a rational jury could have grounded
its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.” The
inquiry “must be set in a practical frame and viewed
with an eye to all the circumstances of the proceed-
ings.”
Id. at 444 (citations omitted).
United States v. Mespoulede, supra, is instructive as
an application of Ashe. The court reasoned that “[a]t
the outset . . . the defendant must carry the burden of
proving that the fact-finder acquitted him because it re-
solved in his favor the very issue that he seeks to fore-
close from consideration in the second trial.” 597 F.2d
at 333. The court looked to the pleadings, evidence, and
charge in the prior trial, determining that if after such
examination the conclusion is reached that the defendant
is being forced to “defend against charges or factual allega-
tions that he overcame in the earlier trial,” the doctrine
of collateral estoppel is applicable. Id. at 335.
This court begins its analysis then by determining
what issues the jury resolved in defendants’ favor [18]
the prior federal prosecution. Count II (Count I at
A53
had been severed) charged defendants with conspiring to
violate 18 U.S.C. §201(b)(3) by “giv[ing] things of value
to Jeffrey Rabinowitz ... and to Geraldine Rabino-
witz,...” The government alleged ten overt acts taken
‘ in furtherance of the conspiracy; among those acts was
the giving and loaning of $1,000 to Geraldine Rabinowitz
and the giving and loaning of approximately $15,000 to
Geraldine and Jeffrey Rabinowitz.
Count III of the indictment (Count II at trial) charged
defendants with violating 18 U.S.C. §201(b)(3), “[iJn
or about June or July 1977,” by “giv[ing], offer[ing]
and promis[ing] things of value, to Jeffrey Rabinowitz
. and to Geraldine Rabinowitz . . . with the intent
to induce Geraldine Rabinowitz . . . to do an act in viola-
tion of her lawful duty in respect to the disclosure of
confidential information contained in the official files and
records of the Federal Bureau of Investigation.” Count
IV (Count III at trial) charged in the same language
a violation of section 201 (b) (3) “in or about October, 1977.”
Pertinent at this point is the court’s charge on Counts
III and IV since the government does not include Count
II as a predicate act in the current RICO claim.* The
court set forth the three elements that the United States
was required to prove:
[19] The first element the United States must prove
is that “in or about June or July 1977,” the particular
defendants under consideration separately or jointly,
gave, offered, or promised anything of value to Geral-
dine Rabinowitz, or to her and Jeffrey Rabinowitz,
or to him on her behalf.
6. Of the current defendants, only Licavoli and Liberatore
remained on counts III and IV at the time of the charge; de-
fendant Calandra remained on count IV. See p.5, supra.
A54
The second element that the United States must prove
is that in giving, offering, or promising a thing of
value to Geraldine Rabinowitz, or to her and Jeffrey
Rabinowitz, or to him on her behalf, the particular
defendant under consideration acted willfully, know-
ingly, and corruptly.
The third element that the United States must prove
is that in giving, offering, or promising a thing of
value to Geraldine Rabinowitz, or to her and Jeffrey
Rabinowitz, or to him on her behalf, the particular
defendant under consideration acted with the specific
intent to induce Geraldine Rabinowitz, an employee
of the Federal Bureau of Investigation, to do an act
in violation of her lawful duty with respect to the
disclosure of confidential information contained in the
official records and files of the Federal Bureau of
Investigation.’
A verdict of not guilty was required under circum-
stances set forth:
Should you find that with respect to the particular
defendant under consideration that the United States
has failed to prove by evidence beyond a reasonable
doubt any one or more of the three elements of the
offense of bribery as charged in Count II as I have
defined and explained these elements to you, and
should you find that the United States has failed to
prove the particular defendant under consideration
guilty by the alternative method of proof I have just
explained, you will then return a verdict of not guilty
as to that particular defendant.
7. In the charge the court set forth
an
method of proof which would be applicable to any
sith) a). on count II, the conspiracy to
violate section
A55
The elements of Count IV (Count III at the trial)
were set forth in identical language except that the [20]
government was required to prove that the events took
place “in or about October 1977.” A verdict of not guilty
was required under circumstances identical to those set
forth in relation to Count III as quoted above.
In the wpcoming trial, the government must prove the
commission of at least two predicate acts by each defen-
dant in order to prove that defendant’s participation in a
“pattern of racketeering activity.”* As stated earlier, Count
I sets forth five predicate acts to support the alleged “pat-
tern of racketeering,” two of which are the bribery acts
alleged in Counts III and IV of the indictment, the counts
litigated in the prior federal prosecution. The government
will have to prove, as to the predicate bribery crimes, the
same three elements it was required to prove as to those
charges in the prior trial.
Yet the jury in its acquittals and the court in granting
the directed verdict motions resolved those factual ele-
ments in favor of the defendants (except for the jury’s
finding defendants Liberatore and Lanci guilty on Counts
II and IV (Counts I and III at the trial). Defendants
Licavoli, Liberatore (as to Count III), Calandra, Cister-
nino, Carabbia, and Lanci (as to Count III) are “once
again faced with criminal sanctions that, realistically, may
be imposed in large part because the second jury is per-
suaded that [they committed the [21] alleged acts of brib-
ery].” Mespoulede, 597 F.2d at 335. The government may
not impose upon defendants a second time the burden of
defending against the identical charges, once acquitted.
Under Ashe v. Swenson the government is collaterally
estopped from introducing evidence as to those acts on
8. For discussion of this requirement, see pages 21-23, infra.
A56
which defendants were acquitted in their prior federal
prosecution.
The government attempts to avoid a collateral estoppel
bar by arguing that because RICO “provide[s] a new
criminal objective for a conspiracy by defining a new sub-
stantive crime, ... it is irrelevant that each defendant did
not agree/conspire to commit each of the predicate acts.”
The government relies upon United States v. Elliott, 571
F.2d 880 (5th Cir.), cert. denied sub nom. Delph v. United
States, 439 U.S. 953 (1978), and United States v. Suther-
land, 656 F.2d 1181 (5th Cir. 1981).
Indeed those cases do hold that “a pattern of agree-
ments that absent RICO would constitute multiple con-
spiracies may be joined under a single RICO conspiracy
count if the defendants have agreed to commit a substan-
tive RICO offense.” Sutherland, 656 F.2d at 1194. This
does not mean that the government can prove the two
predicate acts as to one defendant by showing that these
acts were committed by other members of the alleged
conspiracy. The statute is clear that a person charged
under section 1962(c), and hence section 1962(d), must
have conducted or participated in the conduct of the
defined enterprise’s affairs “through a pattern of [22] rack-
eteering activity,” i.e., through the commission of two or
more predicate acts. Elliott states:
To be convicted as a member of an enterprise con-
spiracy, an individual, by his words or actions, must
have objectiveiy manifested an agreement to par-
ticipate, directly or indirectly, in the affairs af an en-
terprise through the commission of two or more predi-
cate crimes. One whose agreement with the members
of an enterprise did not include this vital element
cannot be convicted under the Act.
571 F.2d at 903.
A57
The government is not barred by this court’s holding
from proving the alleged bribery acts as predicate crimes
committed by persons not previously acquitted on Counts
III and/or IV (Counts II and III at trial) in the prior
prosecution. The government may not attempt to es-
tablish the alleged bribery acts as predicate crimes against
those defendants previously acquitted of thos: bribery acts;
instead, it must establish against those defendants two
other predicate acts.
The government argues that “the constant reliance
by the Defendants upon the ‘facts’ that they, personally,
did not conspire with those convicted to bribe the FBI
clerk” is inadequate to invoke collateral estoppel and close
the awesome door of finality upon these issues relevant
to the “enterprise.” Quoting from Elliott, 571 F.2d 902-04,
the government urges that because “some of [the Elliott]
defendants did not commit nor even know of the com-
mission of some of the predicate offenses . . . did not remove
those portions of the indictment [23] from consideration
against them under a RICO conspiracy enterprise charge.”
In United States v. Sutton, 642 F.2d 1001, 1017 (6th
Cir. 1980), the Sixth Circuit, sitting en banc, rejected the
panel’s belief that it was necessary to show that all de-
fendants engaged in each of the predicate acts shown to
have occurred. In support, the court quoted with ap-
proval language from Elliott, 571 F.2d at 902-03:
The gravamen of the conspiracy charge in this case is
not that each defendant agreed to commit arson, to
steal goods from interstate commerce, to obstruct
justice, and to sell narcotics; rather, it is that each
agreed to participate, directly and indirectly, in the
affairs of the enterprise by committing two or more
predicate crimes. Under the statute, it is irrelevant
that each defendant participated in the enterprise’s
A58
affairs through different, even unrelated crimes, so
long as we may reasonably infer that each crime was
intended to further the enterprise’s affairs.
All Elliott stands for, material here, is that it need not
be shown that all participants committed the same acts
of racketeering. But it must be shown that each defendant
committed at least two predicate acts of racketeering ac-
tivity, while not the same two acts as another defendant.
However, the government is permitted to prove predi-
cate acts of racketeering activity in addition to those
charged in the indictment. In a conspiracy case, overt
acts, in addition to those charged in the indictment, may
be proved. See Brulay v. U.S., 383 F.2d 345, 350-51 (9th
Cir.), cert. denied, 389 U.S. 986 (1967). By analogy it is
concluded in a RICO conspiracy [24] case that the govern-
ment is permitted to prove predicate acts of racketeering
activity in addition to those charged. But this does not
relieve the obligation of the government through the in-
dictment to assert at least two predicate acts as to each
defendant.
V.
Defendant Calandra raises a number of additional
arguments attacking the sufficiency of thé indictment and
asserting that the indictment is unconstitutionally vague.
A.
Defendant asserts first that the conspiracy to murder
Nardi and the conspiracy to murder Greene must be struck
as predicate acts because “a conspiracy is an agreement,
a mental state, standing alone it is not a sufficient act
in law to impose liability on anyone.” He supports his
argument by relying upon O.R.C. §2923.01(B), which re-
quires that an overt act in furtherance of a conspiracy
A59
be alleged and proved. Defendant appears to define the
word conspiracy as an agreement alone and argues that
only when an overt act is added to it does a crime occur.
It is true that the State conspiracy law requires proof
of an overt act. The crime of conspiracy under O.R.C.
§2923.01(A) (2) and (B) consists of an agreement plus a
“substantial overt act” done by the defendant “or a person
with whom he conspired” in furtherance of the conspiracy.
It is the combination of the agreement and overt act which
brings about the “act” which is [25] defined as conspiracy
and proscribed by law. Under Ohio law the crime of con-
spiracy is not an agreement alone but is an agreement
coupled with an overt act. Hence, this court does not
agree with defendant’s assertion that a conspiracy is “a
mental state.”
This court does not find within the definition of
“racketeering activity” in section 1961(1) any suggestion
that Congress intended to exclude conspiracies. Section
1961(1) (A) relating to crimes chargeable under state law
speaks of “any act or threat involving murder, kidnaping,
gambling. .. .” (Emphasis added.) The subsection does
not say “any act or threat of murder....” The term “in-
volving” suggests a broader scope and an intent to include
other acts in addition to the substantive crime. This broad
reading of an “act” includes the crime of conspiracy, which
under Ohio law, as seen, requires an overt act to complete
the crime.
Section 1961(B) sets forth specific federal statutes,
violations of which will constitute an act of racketeering
activity. Among those statutes is 18 U.S.C. §1511, which
makes it “unlawful for two or more persons to conspire
to obstruct the enforcement of the criminal laws of a State
or political subdivision thereof, with the intent to facilitate
an illegal gambling business... .” 18 U.S.C. §1511(a).
A60
The inclusion of this conspiracy statute indicates that there
was no philosophical aversion to the use of a conspiracy
as a predicate act and indeed an intent to include it.
[26] Section 1961(D), which, like section 1961(A),
is written in generic terms, has been found to include
conspiracies. In United States v. Weisman, 624 F.2d 1118
(2d Cir.), cert. denied, 449 U.S. 871 (1980), the court
held that “conspiracy can properly be charged as a predi-
cate act of racketeering under RICO, at least when it
involves any of the substantive offenses listed in section
1961(1)(D).” Id. at 1123.°
Consistent with the congressional intent of giving law
enforcement authorities the necessary tools with which
to fight organized crime, this court determines that a con-
spiracy may be charged as a predicate act under section
1961(A).
B.
Defendant Calandra argues that the conspiracy to mur-
der Greene and the murder of Greene cannot be consid-
ered as separate predicate acts because under O.R.C.
§2923.01(b) those acts merge upon conviction of the sub-
substantive crime. It is clear that the purpose of subsec-
tion (G) is to prevent a court from imposing double sen-
tences for conspiracy and the substantive act, and thus
the provision has no application to the current situation.
Of course, the court reserves for trial the questions of
whether the government has proved both a conspiracy
and the substantive act. Also reserved [27] is the ques-
tion of whether if those are the only two predicate acts
proved, those acts can constitute a “pattern of racketeer-
ing activity” within the intent of the statute.
9. The court agrees with the determination in Weisman that
the omission of the general conspiracy statute, 18 U.S.C. §371,
Se awe Seen) Canis latins to tank “este” to the tpesitic
provisions delinea
> ve
A61
C.
Defendant Calandra next argues that “the indictment
does not comply with the substantive requirements of the
Ohio statute (2923.01) that it seeks to incorporate” in
that the government failed to allege specific overt acts
taken in furtherance of the conspiracies to murder Nardi
and Greene. The argument is not well taken as it pertains
to the Greene conspiracy. The government has alleged
overt acts related thereto in sections 2-7.
However, even if no overt acts had been alleged as
to Greene and even though none have been alleged as
to Nardi, the court does not find the indictment defective.
There is nothing in section 1962(c) or (d) which requires
the indictment to charge all of the elements of a state
predicate crime. This criminal prosecution is for the viola-
tion of a federal criminal statute. The defendants have
not been charged with commission of the state crimes;
they cannot be convicted of the state crimes. The state
crimes referred to are definitional only. United States
v. Frumento, 563 F.2d 1083 (3rd Cir. 1977), cert. denied
sub nom. Millhouse v. United States, 434 U.S. 1072 (1978).
As such, the government will be required to prove those
acts according to the elements required by state law. [28]
Hence, the government will have to prove at trial that
overt acts were taken in furtherance of the alleged con-
spiracy agreements. This does not mean, however, that
the government is required to set forth in the federal
indictment pertaining to the federal charge the elements
of the state law predicate acts.’
10. It is relevant here to note that courts t great flexi-
bility in the proof of overt acts. “Evidence overt acts which
(Continued on following page)
D.
Because Ohio had no general conspiracy law in 1970
when RICO was enacted, defendant argues, the language
“chargeable under state law” could not include section
2923.01. The court disagrees. Section 1961(A) does not
say “presently chargeable under state law.” The critical
question is whether the acts alleged were proscribed
by state law at the time they were committed. There
can be no disagreement that the conspiracy statute was
in existence at the time the conspiracies listed as predicate
acts allegedly occurred.
E.
Defendant’s argument that the indictment is unconsti-
tutionally vague is thus summed up: “In short, how can
the government expect this citizen to defend against [29]
the charge that he conspired to associate with a RICO
conspiracy through the commission of two conspiracies?”
Defendant’s concern “is compounded by the protected na-
ture of the activity which is apparently the subject of
the offense - i.e. associational rights.”
To the extent defendant is asserting that the RICO
statute is unconstitutional because it punishes associational
status, defendant’s argument must fail. RICO’s “proscrip-
tions are directed against conduct, not status.” United
States v. Elliott, supra. Furthermore, “[rjequiring one
A63
to those who might otherwise be convicted through guilt
by association.” United States v. Winter, 663 F.2d 1120,
1136 (1st Cir. 1981).
To the extent that defendant is arguing a conspiracy
cannot be an act under section 1961, the court has held
contrary in part V.A., supra. The government must prove
that defendants conspired to conduct or participate in the
affairs of an enterprise, which they willingly joined,
through the commission of at least two acts of racketeer-
ing activity. As to a particular defendant and as to the
RICO conspiracy charged, the government must prove that
said defendant committed at least two predicate acts. As
to the conspiracies charged as predicate acts, the govern-
ment must prove that said defendant agreed to murder
Nardi and/or GC:eene and that some member of the con-
spiracy carried out one or more overt acts in furtherance
of that agreement. [30] Viewed in such a way, the court
concludes that the statute is not unconstitutionally vague.
For the above stated reasons, defendants’ motions to
dismiss or to exclude evidence are granted on the ground
of collateral estoppel and overruled on all other grounds.
IT IS SO ORDERED.
/s/ Wrut1am K. Tuomas
U.S. District Senior Judge
A64
ORDER OF THE UNITED STATES COURT OF AP-
PEALS FOR THE SIXTH CIRCUIT DENYING
PETITION FOR REHEARING
(Filed March 5, 1984)
82-3509/3606 /3498
UNITED STATES COURT OF APPEALS
For THe Srxtu Circuit
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
ANTHONY LIBERATORE, JAMES T. LICAVOLI,
Defendant-Appellant.
ORDER
Before: Merritr and Kennepy, Circuit Judges; and
Pratt, District Judge.*
The Court not having favored rehearing en banc in
this case, the petition for rehearing is referred to our
panel for disposition.
Upon consideration, IT IS ORDERED that the petition
for rehearing be and hereby is DENIED.
/s/ Joun P. Henman
Clerk
*Honorable Philip Pratt, United States District Court for
the Eastern District of Michigan, sitting by designation.
A65
STATUTORY PROVISION INVOLVED
18 U.S.C. Section 201(b) (3)
Bribery of public officials and witnesses
(b) Whoever, directly or indirectly, corruptly gives,
offers or promises anything of value to any public official
or person who has been selected to be a public official,
or offers or promises any public official or any person
who has been selected to be a public official to give any-
thing of value to any other person or entity, with intent—
(3) to induce such puulic official or such person who
has been selected to be a public official to do or omit to do
any act in violation of his lawful duty—.
Shall be fined not more than $20,000 or three times
the monetary equivalent of the thing of value, which-
ever is greater, or imprisoned for not more than fif-
teen years, or both, and may be disqualified from hold-
ing any office of honor, trust, or profit under the
United States.
18 U.S.C. Section 371
Conspiracy to Commit Offense or to Defraud United States
If two or more persons conspire either to commit any
offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any
purpose, and one or more of such persons do any act to
effect the object of the conspiracy, each shall be fined not
more than $10,000 or imprisoned not more than five years,
or both.
If, however, the offense, the commission of which is
the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the maxi-
mum punishment provided for such misdemeanor.
A66
18 U.S.C. § 1961
CRIMES AND CRIMINAL PROCEDURE
§ 1961. Definitions
As used in this chapter—
(1) “Racketeering activity” means (A) any act or
threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, or dealing in narcotic or
other dangerous drugs, which is chargeable under State
law and punishable by imprisonment for more than
one year; (B) any act which is indictable under any
or the following provisions of title 18, United States
Code: Section 201 (relating to bribery), section 224
(relating to sports bribery), sections 471, 472, and 473
(relating to counterfeiting), section 659 (relating to
theft from interstate shipment) if the act indictable
under section 659 is felonious, section 664 (relating to
embezzlement from pension and welfare funds), sec-
tions 891-894 (relating to extortionate credit transac-
tions), section 1084 (relating to the transmission of
gambling information), section 1341 (relating to mail
fraud), section 1343 (relating to wire fraud), section
1503 (relating to obstruction of justice), section 1510
(relating to obstruction of criminal investigations),
section 1511 (relating to the obstruction of State or
local law enforcement), section 1951 (relating to in-
terference with commerce, robbery, or extortion), sec-
tion 1952 (relating to racketeering), section 1953 (re-
lating to interstate transportation of wagering para-
phernalia), section 1954 (relating to unlawful wel-
fare fund payments), section 1955 (relating to the
prohibition of illegal gambling businesses), sections
2314 and 2315 (relating to interstate transportation of
stolen property), sections 2341-2346 (relating to traf-
ficking in contraband cigarettes), sections 2421-24 (re-
467
lating to white slave traffic), (C) any act which is
indictable under title 29, United States Code, section
186 (dealing with restrictions on payments and loans
to labor organizations) or section 501(c) (relating to
embezzlement from union funds), or (D) any offense
involving fraud connected with a case under title 11,
fraud in the sale of securities, or the felonious manu-
facture, importation, receiving, concealment, buying,
selling, or otherwise dealing in narcotic or other dan-
gerous drugs, punishable under any law of the United
States;
(2) “State” means any State of the United States,
the District of Columbia, the Commonwealth of Puerto
Rico, any territory or possession of the United States,
any political subdivision, or any department, agency,
or instrumentality thereof;
(3) “person” includes any individual or entity
capable of holding a legal or beneficial interest in
property;
(4) “enterprise” includes any individual, part-
nership, corporation, association, or other legal entity,
and any union or group of individuals associated in
fact although not a legal entity;
(5) “pattern of racketeering activity” requires
at least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and
the last of which occurred within ten years (exclud-
ing any period of imprisonment) after the commission
of a prior act of racketeering activity;
(6) “unlawful debt” means a debt (A) incurred
or contracted in gambling activity which was in vio-
lation of the law of the United States, a State or polit-
ical subdivision thereof, or which is unenforceable
A68
under State or Federal law in whole or in part as to
principal or interest because of the laws relating to
usury, and (B) which was incurred in connection with
the business of gambling in violation of the law of
the United States, a State or political subdivision
thereof, or the business of lending money or a thing of
value at a rate usurious under State or Federal law,
where the usurious rate is at least twice the enforce-
able rate;
(7) “racketeering investigator” means any at-
winey or investigator so designated by the Attgrney
General and charged with the duty of enforcing or
carrying into effect this chapter [18 USCS §§ 1961
et seq.];
(8) “racketeering investigation” means any in-
quiry conducted by any racketeering investigator for
the purpose of ascertaining whether any person has
been involved in any violation of this chapter [18
USCS §§ 1961 et seq.] or of any final order, judgment,
or decree of any court of the United States, duly en-
tered in any case or proceeding arising under this
chapter [18 USCS §§ 1961 et seq.];
_ (9) “documentary material” includes any book,
paper, document, record, recording, or other material;
and
(10) “Attorney General” includes the Attorney
General of the United States, the Deputy Attorney
General of the United States, any Assistant Attorney
General of the United States, or any employee of the
Department of Justice or any employee of any depart-
ment or agency of the United States so designated by
the Attorney General to carry out the powers con-
ferred on the Attorney General by this chapter [18
USCS §§ 1961 et seq.]. Any department or agency so
A69
designated may use in investigations authorized by
this chapter [18 USCS §§ 1961 et seq.] either the in-
vestigative provisions of this chapter [18 USCS §§ 1961
et seq.] or the investigative power of such department
or agency otherwise conferred by law.
18 U.S.C. § 1962
RACKETEER ORGANIZATIONS
§ 1962. Prohibited activities
(a) It shall be unlawful for any person who has re-
ceived any income derived, directly or indirectly, from a
pattern of racketeering activity or through collection of
an unlawful debt in which such person has participated as
a principal within the meaning of section 2, title 18, United
States Code [18 USCS § 2], to use or invest, directly or
indirectly, any part of such income, or the proceeds of
such income, in acquisition of any interest in, or the estab-
lishment or operation of, any enterprise which is engages
in, or the activities of which affect, interstate or foreign
commerce. A purchase of securities on the open market
for purposes of investment, and without the intention of
controlling or participating in the control of the issuer, or
of assisting another to do so, shall not be unlawful under
this subsection if the securities of the issuer held by the
purchaser, the members of his immediate family, and his
or their accomplices in any pattern or racketeering activity
or the collection of an unlawful debt after such purchase
do not amount in the aggregate to one percent of the out-
standing securities of any one class, and do not confer,
either in law or in fact, the power to elect one or more
directors of the issuer.
(b) It shall be unlawful for any person through a
pattern of racketeering activity or through collection of an
A70
unlawful debt to acquire or maintain, directly or indirectly,
any interest in or control of any enterprise which is en-
gaged in, or the activities of which affect, interstate or
foreign commerce.
(c) It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or the ac-
tivities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the con-
duct of such enterprise’s affairs through a pattern of rack-
eteering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire
to violate any of the provisions of subsections (a), (b), or
(c) of this section.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.