Petition for Writ of Certiorari — Inserra v. United States

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Supreme Court, U.S.

9 9-187 FILED

JUL 28 1992

LOFFICE OF THE CLERK

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

ANTHONY INSERRA

Petitioner,

-vs-

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DAVID LENEFSKY

Counsel of Record

18 E. 48th Street

New York, New York 10017

212/371-8787

QUESTIONS PRESENTED FOR REVIEW

I. Was the ex post facto clause of the

Constitution violated when the computation

of the Sentencing Guidelines in a RICO

conspiracy case was determined solely by a

1976 overt act and not by activity which

straddled the effective date of the

Guidelines?

II. Was 18 U.S.C. § 1961 (5) misapplied

when the Court found a pattern of

racketeering activity based upon a 1976 and

a 1979 act and where the petitioner did not

commit any enterprise related criminal acts

between 1979 and 1989 when the enterprise

terminated?

III. Is a single debt collection without

more sufficient to support a RICO

conviction or, as in the case of pattern,

are there additional conditions which a

Court must identify before the conviction

can be upheld?

TABLE OF CONTENTS

Questions Presented for Review i

Table of Contents li

Table of Authorities iii

Opinions Delivered in the Case

by Other Courts 1

Statement of Jurisdiction 1

Constitutional Provisions Involved 2

Statutory Provisions Involved 2

Statement of the Case 4

Reasons for Granting Writ 16

Conclusion 44

Appendix:

U. S. Court of Appeals (Second Circuit)

Opinion and Order Affirming Decision

of District Court la

U.S. Court of Appeals (Second Circuit)

Order Granting in Part

Motion for Reconsideration, amending

Original Opinion, and denying Motion

and Suggestion for Hearing In Banc 47a

U.S. Court of Appeals Opinion Amending

Opinion 49a

—— hl

lii

TABLE OF AUTHORITIES

Cases:

Calder v. Bull, 3 Dall. 386 (1798) 18

Gryger v. Burke, 334 U.S. 728 (1948) ADs

Be ws Tne. ww. Northwestern Telephone i. »

492 U.S. 229 (1989) a6, 2,

|) va &

34, 33,

Harisades v, Shaughnessy, 342 U.S. 580

(1952) 18

Hyde v. United States, 225 U.S. 347

(1912) 31

Lindsey v. Washington, 301 U.S. 397 (1937)

20,21,22

McDonald vy. Massachusetts, 180 U.S. 311

(1901) 24

Miller vy. Florida, 482 U.S. 423 (1987) 18,

49, 21, 22

sedima S.P.R.L. v. Imrex Co., 473 U.S. 479

(1985) 32

United States v. United States Gypsum Co.,

438 U.S. 422 (1979) 31

Weaver vy. Graham, 450 U.S. 24 (1981) 18,

Bacchus Industries, Inc. ae Arvin

Industries, Inc., 939 F.2d 891 (10th Cir.

1991) 37

Brubaker v. City of Richmond, 943 F.2d 1363

(4th Cir. 1991) 37

Calcasieu Marine Nat. Bank v. Grant, 943

’.2G 1453 {Sth Cir. 1991) 37

Hughes v. Conso-Pennsylvania Coal Co., 945

F.2d 594 (3d Cir. 1991) 37

J. D. Marshall Intern. v. Redstart, ine. .

940 F.2d 359 (7th Cir. 1991) 37

Miranda v. Ponce Federal Bank, 948 F.2d 41

(lst Cir. 1991) 37

Pyramid Securites, Ltd. v. IB Resolution,

Inc., 924 F.2d 34 Fags Cit. 1991) 37

Thompson v. Paasche, 950 F.2d 306 (6th Cir.

1991) 37

United States v. Adeniyi, 912 F.2d 615 (2a

Cir. 1990) 29

United States v. Angiulo, 897 F.2d 1169

(lst Cir.), cert. denied, 111 S.Ct. 130

(1990) 34

United States v. Bakker, 925 F.2d 728 (4th

Cir. 1991) 27

United States v. Bodre, 948 F.2d 28 (lst

Cir. 1991) 30

Vv.

United States v. Bolinger, 940 F.2d 478

(9th Cir. 1991) 22

United States v. Borelli, 336 F.2d 376 (2d

Cir. 1964), cert. denied, 379 U.S. 960

(1965) 28

United States v. Canino, 949 F.2d 928 (7th

Cir. 1991) 27

United States v. Carey, 943 F.2qa 44 (11th

Cir. 1991) 24

United States v. Chambers, 944 F.2d 1253

(6th Cir. 1991) 27

United States v. Fufrasio, 935 F.2d 553 (3a

Cir. 1991) 34

United States v. Giovanelli, 945 F.2a@ 479

(2a Cir. 1991) 39

United States v. Green, 952 F.24 414 (D.C.

Cir. 1991) 29

United States v. Harotunian, 920 F.2d 1040

(ist ¢ir. 1990) 29

United States v. Inafuku, 938 F.2d 972 (9th

Cir. 1991) as,5 a0

United States v. Indelicato, 865 F.2d 1370

(2d Cir.) (en banc), cert. denied, 107

L.Ed.2d 24 (1989) 34

United States v, Juodakis, 834 F.2da 1099

(lst Cir. 1987) 30

United States vy. Kotvas, 941 F.2d 1141

(lith Cir. 1991) 37

United States v. Lam Kwong Wah, 924 F.2d

298 (D.C. Cir. 1991) 29

United States v. Landlaw, 733 F.Supp. 1256

(N.D. Ind. 1990) 22

United States v. McAllister, 927 F.2d 136

(3a Cir.}), Gere, Gentes. 133 €.Ce. 14%

(1991) 29

United States v. Mettler, 938 F.2d 764

(llth Cir. 1991) 24

United States v. Minicone, 960 F.2d 1099

(2d Cir. 1992) 1

United States v. Molina, 952 F.2d 514 (D.C.

Cir. 1992) 2°

United States v. Morrow, 924 F.2d 779 (4th

Cir. 1991) 30

United States v. Nerlinger, 862 F.2d 967

(2d Cir. 1988) 30

United States v. Pepe, 747 F.2d 632 (11th

Cir. 1984) 39

United States _v. Pippin, 903 F.2d 1478

(llth Cir. 1990) 27

United States v. Saucedo, 950 F.2d 1508

(10th Cir. 1991) 30

United States v. Sheffer, 896 F.2d 842 (4th

Cir.), cert. denied, 490 U.S. 1112

(1989) 28

United States v. Steele, 685 F. 2d 793 (3d

Cir.), cert. denied, 459 U.S. 908

(1982) 30

vil

United States v. story, 891 F.2d 988 (24

Cir. 1988) 26

United States v. Swanger, 919 F.2d 94 (8th

Cir. 1990) 30

United States v. Tharp, 892 F.2d 691 (8th

Cir. 1989) 26

United States v. Vastelica, 751 F.Supp. 803

(f.D. Ark. 1990) 22

United States v. Vastola, 899 F.2d 211 (3d

Cir. 1990) 39

United States v. Watford, 894 F.2d 665 (4th

Cir. 1990) 26

United States v. White, 869 F.2d 822 (5th

Cir.), cert. denied 490 U.s. 1112

(1989) 26, 28

United States v. Williams, 897 F.2d 1034

(10th Cir. 1990) 27

United States v. Worthy, 915 F.2d 1514

(Lim Cir. 1990) 30

Constitutional Provisions:

Article 1, § 9, cl. 3 2, 18

Article 1, § 10, cl. 1 2, 18

Statutes:

18 U.S.C. § 371 4

18 U.S.C. § 1961 (5) 2

Vvilil

18 U.S.C. § 1961 (6) 2

18 U.S.C. § 1962 (c) te = at

18 U.S.C. § 1962 (a) 4

28 U.S.C. § 1254 (1) 2

Other:

Sentencing Guidelines Commission,

"Questions Most Frequently Asked About the

Sentencing Guidelines, March 1990,

Questions 41 and 51 27

OPINIONS DELIVERED IN THE CASE

BY OTHER COURTS

On January 23, 1992, the United States

Court of Appeals for the Second Circuit

affirmed Petitioner's January 2, 1991

conviction for RICO conspiracy in violation

of 18 U.S.C. § 1962(d) and consequent

sentence of twenty years custody. This

opinion is reported. United States v.

Minicone, 960 F.2d 1099 (2d Cir. 1992)

(la). On April 30, 1992, The United States

Court of Appeals for the Second Circuit, in

an unpublished opinion, granted in part

Petitioner's Motion for Reconsideration.

(a) The original opinion was amended.

However, this decision affirmed both

Petitioner's conviction and sentence. (47a,

49a)

STATEMENT OF JURISDICTION

Petitioner, Anthony Inserra, moves

this Honorable Court now for a writ of

certiorari and review of the Judgment of

the United States Court of Appeals for the

Second Circuit entered in the above-titled

cause on April 30, 1992. (47a) The

jurisdiction of this Court is invoked under

28 U.S.C. § 1254 (1).

CONSTITUTIONAL PROVISIONS INVOLVED

Article 1, § 9, cl. 3 of the United

States Constitution provides in relevant

part:

"No Bill of Attainder or ex post facto

law shall be passed."

STATUTORY PROVISIONS INVOLVED

Title 18, United States Code, § 1961

(5) provides:

"(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 (excluding any

period of imprisonment) after the

commission of a prior act of

racketeering activity.

Title 18, United States Code, § 1961

(6) provides:

"(6) ‘unlawful debt' means a debt

(A) incurred or contracted in

gambling activity which was in

Violation of the law of the

United States, a State or

political subdivision thereof, or

which is unenforceable 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 ae rate

usurious under State or Federal

law, where the usurious rate is

at least twice the enforceable

rate,

Title 168, United States Code, § 1962

(Cc) It shall be unlawful for any

person employed by or associated

with any enterprise engaged in,

or the activities of which

affect, interstate or foreign

commerce, to >ontrol or

participate, directly or

indirectly, in the conduct of

such enterprise's affairs through

a pattern of racketeering

activity or collection of

unlawful debt.

Title 18, United States Code, § 1962

(ad) provides:

(d) It shall be unlawful for any

person to conspire to violate any

of the provisions of subsection

(a), (b), or (ec) of this section.

STATEMENT OF THE CASE

On September 6, 1989, a Special Grand

Jury returned a three count indictment that

charged Petitioner with substantive RICO in

violation of 18 U.S.C. § 1962 (c), RICO

conspiracy in violation of 18 U.S.C. § 1962

(d), and copspiracy to transport stolen

goods in interstate commerce in violation

of 18 U.S.C. § 371; four other individuals

were also charged.

The indictment alleged that’ the

enterprise consisted of an association of

individuals who had belonged to a criminal

enterprise which operated in the Utica, New

York area between the 1973 and 1989.

The indictment alleged that Petitioner

was a member of that enterprise and that he

participated in five specific acts in

furtherance of the enterprise:

a In 1973, Petitioner and a co-

defendant, acting upon orders of the

enterprise leader, allegedly hired two men

to beat up and rob two local bookmakers.

ai In 1974 or 1975, Petitioner and a

co-defendant allegedly approached a local

criminal who had borrowed money from the

enterprise at excessive interest rates.

Petitioner allegedly told the individual

that "Ange wants that money".

. In 1976, Petitioner and a number

of other individuals allegedly participated

in a murder. The victim was a hoodlum who

had just been released from federal prison

and who had threatened the lives of

Petitioner and other alleged members of the

enterprise. The government claimed that

while Petitioner did not personally

participate in the actual shooting, he was

involved in planning the murder. The

government also asserted that Petitioner

assisted in obtaining one of the many

weapons used and that he monitored a police

scanner on the night of the crime.

4. In 1978-1979, Petitioner worked

for his brother who was allegedly managing

an enterprise related sports book.

$. In 1985, an individual who later

became a government witness stole retail

merchandise in Pennsylvania and transported

it across state lines to New York where it

was sold by enterprise members. Petitioner

allegedly accompanied the individual while

the goods were being sold and transported.

The jury trial began on May 17, 1990.

The government's evidence on each of the

alleged racketeering acts consisted of the

following:

i. The informant testified that in

1973, Petitioner and a co-defendant had

hired him and another individual to beat

and rob two local bookmakers. The

informant performed the robbery and gave a

portion of the proceeds to Petitioner and

the co-defendant. The informant further

testified that he had heard various

explanations for the crime, including a

claim that the victims had been robbed and

beaten to discourage them from talking to

the FBI. (Orig. Trial Transcript, 79-92;

App. 5a-6a)

2. Another witness testified that he

was a burglar who had frequently borrowed

money from an enterprise member to finance

the expenses of his burglary operation. In

1974 or 1975, Petitioner and a co-defendant

approached the witness and told him that

the lender wanted his money. The witness

stated that he would pay the money to the

lender, and Petitioner and the co-defendant

left scratching their heads. The witness

repaid the money the next day. (Orig. Trial

Transcript, 175-180)

3. Testimony by various individuals

described the background of the 1976 murder

and Petitioner's alleged participation in

that crime. Petitioner had been

investigated by State authorities, but he

was not charged. A co-defendant in the

instant case and one of the actual trigger

men had pleaded guilty in New york State

court and had _ served approximately two

years for the crime. (Orig. Trial

Transcript, 101-393; App. 6a-8a)

4. The informer testified that he

had worked for a sports book located in

Utica during 1978 and 1979 and that

Petitioner had also worked there. Evidence

was also introduced establishing that

Petitioner had been convicted for gambling

in a New York court as a result of his

participation in the Sports book. (Original

Trial Transcript, 108-112)

-- The informer testified that in

1985 he had traveled to Pennsylvania and

stolen retail merchandise which he

transported back to New York, intending to

resell the merchandise to an enterprise

member in New York. The informer further

testified that Petitioner had accompanied

him while the merchandise was’. stolen.

Inserra was acquitted of this count.

By the early 1980's, co-defendant Jack

Minicone had become a powerful figure in

the enterprise. Petitioner and Minicone

had a falling out, and a violent argument

ensued. Minicone shot gunned Petitioner's

house. The enterprise leader allegedly

sought to patch things up, but neither

Petitioner nor Minicone ever resolved their

differences. (Original Trial Transcript

132-141). Other than the alleged 1985

incident, Petitioner's relationship with

the enterprise was virtually non-existent.

Indeed, although 748 enterprise related

conversations were recorded during an

investigation which began in 1985,

Petitioner only appeared on tape once. In

that conversation, Petitioner complained

about his legal problems and told another

individual that he had heard that the

governnent was investigating the enterprise

leader and his_ son. (Original Trial

Transcript, 382-383) The tapes included a

few references to Petitioner. In one

reference, two individuals discussed a

request for ammunition that was. not

honored. In another reference, the comment

was made that Petitioner was trustworthy.

(31a-32a)

Petitioner successfully moved to have

the substantive RICO count dismissed on

statute of limitations grounds. On June

26, 1990, the jury acquitted Petitioner of

the conspiracy to transport stolen goods

and of the RICO predicate act relating to

stolen goods. The jury convicted

Petitioner of RICO conspiracy.

Because the enterprise had continued

Operations until 1989, sentencing was

pursuant to the United States Sentencing

Guidelines. The probation officer's

computation based the guidelines on a

Single overt act in furtherance of the

conspiracy, the 1976 murder. Asa result,

Petitioner's guidelines exceeded the

statutory maximum and converted the penalty

for RICO conspiracy into a twenty year

mandatory sentence. Petitioner vigorously

objected, Claiming, among other things,

that it was a violation of the ex post

facto clause of the Constitution to

sentence him based upon a 1976 overt act.

Petitioner also objected because the murder

was not used to figure the guidelines of a

co-defendant who was an actual triggerman,

because that individual had received a

short state sentence for the crime.

Petitioner's objections were

overruled, and he was sentenced to twenty

years incarceration. Petitioner is

presently serving his sentence.

Petitioner appealed his conviction and

sentence to the United States Court of

Appeals for the Second Circuit. Among

other things, Petitioner argued that the

evidence was insufficient on the 1973,

1974, and 1979 predicate acts. Petitioner

also argued that because there were only

two racketeering acts, the government did

not establish the requisite pattern of

racketeering activity. Alternatively,

Petitioner argued that the alleged acts of

debt collection was insufficient on the

facts of this case to Satisfy the statutory

requirements. Petitioner also argued

withdrawal, claiming that his argument with

Minicone and his completely minimal

relationship with the enterprise after

1979, meant that he was' no longer

associated with the conspiracy. Petitioner

also claimed that his twenty year sentence

was a violation of the ex post facto clause

of the Constitution because it was based

upon a 1976 overt act, rather than upon

some type of continuing activity which

Straddled the effective date of the

Sentencing Guidelines.

On January 23, 1992, the United States

Court of Appeals for the Second Circuit

affirmed Petitioner's conviction and

sentence in every respect. (la) The Court

held that the two predicate racketeering

acts were sufficient and that there was

also sufficient evidence to support the

jury's decision that Petitioner had not

withdrawn from the conspiracy. The Court

also upheld the sentence, although it did

not specifically discuss Petitioner's

contention that the guidelines were

unconstitutionally applied to him. (45a)

Petitioner filed a timely Motion for

Reconsideration and a Suggestion for

Rehearing in banc. The reconsideration

motion argued that the use of a 1976 overt

act to sentence him violated the

Constitutional prohibition against ex post

facto laws, that there was no evidence

linking one of the two racketeering

predicates to the enterprise, that even if

there was such evidence, there was no

evidence establishing continuity, and that

if the Court agreed and found Only one

predicate act of racketeering, the alleged

debt collections were insufficient as a

matter of law to Support his’ RICO

conspiracy conviction.

On April 30, 1992, the Court granted

the Motion for Reconsideration in part and

amended the original Opinion. (47a, 49a)

The amendment addressed the ex post facto

question and held that it was permissible

to use a pre-guideline overt act to

establish the guideline penalty. The Court

analogized the guideline application to the

use of recidivist statutes to increase a

penalty, approved by this Court in Gryger

Vv. _ Burke, 334 U.S. 748, 732 (1948). The

Court concluded that there was fair notice

of the penalty and that the conversion of

an indeterminate sentence into a mandatory

sentence was no different than enacting a

recidivist statute Which penalized an

individual more severely for a current

offense because of a crime committed

sometime in the past. The Court did not

address the other aspects of the

reconsideration petition and did not grant

Petitioner's request for a rehearing in

banc. (49a to 53a)

REASONS FOR GRANTING WRIT

Petitioner submits that the instant

case raises two important questions of

federal law. The ex post facto question is

unique on its facts and has not been

settled by this Court. The pattern of

racketeering activity/debt collection

question affords the Court an opportunity

to provide the lower courts’ further

guidance about the meaning, scope, and

application of this Court's decision in H.

J. Inc. v. Northwestern Telephone Co., 492

U.S. 229 (1989).

A. THE EX POST FACTO QUESTION

Petitioner was an active member of the

RICO conspiracy between 1973 and 1979. In

1976, Petitioner participated in a murder.

Because of a dispute between himself and a

powerful member of the conspiracy, he was

basically inactive between 1979 and the end

of the conspiracy in 1989.

The penalty in 1979 for RICO

conspiracy was an indeterminate sentence of

20 years. In 1991, when Petitioner was

sentenced, the statutory maximum penalty

for conspiracy remained at 20 years, but

the actual sentence was determined by the

United States Sentencing Guidelines. The

| Second Circuit's application of those

guidelines resulted in a mandatory 20 year

sentence. Had Petitioner been sentenced

| for the continuing acts of the conspiracy

rather than for the this ancient overt act,

his guideline range would have’ been

considerably less. Co-conspirators

Similarly situated received between 30 and

78 months, as opposed to the 240 months

impose@ upon Petitioner.

The generai ex post facto principles

are well established. The ex post facto

clause prohibits the retrospective

application of criminal laws that

materially disadvantage the defendant.

United States Constitution, Art. 1, § 9,

Gi.3t ASG. Jy § 306. Gas. ax

The purpose of the ex post facto

clauses was to prevent legislatures from

enacting vindictive or arbitrary laws.

Calder v. Bull, 3 Dall. 386, 389 (1798).

They were also designed to give a defendant

fair notice of the penalties which applied

to his conduct. Calder, 3 Dall. at 388;

Weaver v. Graham, 450 U.S. 24, 30 (1981).

This Court has fashioned a three prong

test for determining whether legislation

violates the ex post facto clause:

1. The legislation must be penal or

criminal in nature. Harisades Vv.

Shaughnessy, 342 U.S. 580 (1952).

y The legislation must be

retrospective. Miller v. Florida, 482 U.S.

423 (1987).

: The legislation must

"disadvantage the offender affected py it."

Miller, quoting Weaver v. Graham, 450 U.S.

24, 30 (1981).

This Court's most recent consideration

of a sentencing guideline and the interplay

between that guideline and the ex post

facto clause was Miller vy. Florida, 482

U.S. 423 (1987). In Miller, Florida's

sentencing guidelines were revised after

the crime was committed. The new

guidelines dictated a harsher sentence than

would have been imposed at the time that

the offense was committed. Miller argued

that it was a violation of the ex post

facto clause to use the newer guidelines to

sentence him.

This Court agreed. The Court noted

that a law is retrospective when it changes

the legal consequences of acts completed

before its effective date, citing Weaver v.

Graham, 450 U.S. at p. 29. Moreover,

Miller was not warned. All he Knew was

that the law could be changed in the

future. He did now know that Florida would

eventually attempt to subject him to a

harsher penalty. Notice of a possible

future change, a fact which applies to all

criminal laws, is not enough to pass

Constitutional muster. 423 U.S. at p. 431-

432. See, also, Lindsey v. Washington, 301

U.S. 397 (1937) (the statutory penalty at

the time of the offense was an

indeterminate sentence between six months

and fifteen years; at sentencing, it was a

mandatory fifteen years which was’ the

sentence imposed. The sentence was struck

down as ex post facto).

Finally, the new guidelines were more

onerous because Miller's’ penalty was

increased. 428 U.S. at pp. 433-434.

For all of these reasons, the harsher

sentence was set aside and the case was

remanded for re-sentencing in accordance

with the Court's opinion.

Petitioner submits that the Second

Circuit opinion is directly contrary to the

Miller and Lindsey decisions, and that this

fact, combined with the terrible injustice

done Petitioner, justifies the writ sought.

In the instant case, the application

of the sentencing guidelines to petitioner

was retrospective because it clearly

changed the consequences of acts completed

before the Guideline's effective date. Had

Petitioner been indicted and convicted at

anytime prior to November of 1987, he would

have been subject to an indeterminate

sentence of zero to twenty years. The

consequence of his indictment after

November of 1987 was that his penalty had

become a mandatory 20 years. Accordingly,

as in Miller, the change was retrospective.

Petitioner also had no warning that

the penalty would be changed. As in

Miller, he knew that legislative changes

were always possible, but he had absolutely

no notice that the law would change in 1987

and that his exposure would change

drastically. There is another factor.

Petitioner was essentially inactive in the

conspiracy after 1979. Had he had notice,

he could have taken additional steps to

withdraw from the conspiracy and to

eliminate the increased exposure which the

guideline enactment brought. Accordingly,

the lack of notice caused petitioner

identifiable harm.

Finally, it is clear that a twenty

year mandatory sentence is more onerous

than an indeterminate zero to twenty year

sentence. Cf., Lindsey v. Washington, 301

U.S. 397 (1937). See, also, United States

v. Bolinger, 940 F.2d 478 (9th Cir. 1991);

United States v. Landlaw, 733 F.Supp. 1256

(N.D. Ind. 1990) ; United States _v.

Vastelica, 751 F.Supp. 803 (E.D. Ark. 1990)

(all of which hold that a change in the

guidelines which increase the sentencing

guideline offense level is a more onerous

sentence for purposes of an ex post facto

analysis).

For all of these reasons, the Second

Circuit has misapplied Miller, and

certiorari is justified.

The Second Circuit also misapplied

Gryger v. Burke, 334 U.S. 728 (1948) and

that fact is an additional reason to grant

review of petitioner's case.

In Gryger, the defendant was sentenced

under a State Habitual offender law. One

of the factors in the sentencing

calculation were convictions which pre-

dated the current offense. The defendant

Challenged the sentencing scheme under ex

post facto principles. This Court found no

violation because the effect of the state's

law was only to increase the penalty for

the current crime, not penalize the

defendant for his past criminal acts. See,

also, McDonald v. Massachusetts, 180 U.S.

311 (1901) (increasing penalty for current

offense does not violate the ex post facto

clauses when the punishment is for the new

crime only).

The Circuits have generally applied

Gryger when considering challenges to the

criminal history component of the guideline

calculation. Those cases have held that it

is not ex post facto to increase the

criminal history score\and thus the penalty

for the instant offense because of the

defendant's prior history. see, e.g,.,

United States v. Mettler, 938 F.2d 764 (7th

Cir. 1991) and United States v. Carey, 943

F.2d 44 (11th Cir. 1991).

The Second Circuit's application,

however, was a substantial departure from

other Circuits and this Court's own

analysis. The Second Circuit, in its

amended opinion, explicitly acknowledged

that Petitioner's sentence was determined

solely by pre-guideline conduct. However,

the Court justified that result by noting

that recidivist statutes do not violate the

ex post facto clause. The Court held that,

like the recidivist statutes, petitioner

had fair notice and that no violation

occurred because of that notice.

The flaw in the Second Circuit's

reasoning is that the recidivist cases deal

with imposing a harsher penalty for the

current offense because of a defendant's

past criminal acts. Petitioner's case

deals with a harsher penalty for the

current crime because the penalty for an

overt act charged as part of the instant

crime was increased. The two situations

are totally disparate, and the Second

Circuit's reasoning is plainly incorrect.

A third reason to grant the writ is

the continuing difficulties which the

Circuits are having in applying ex post

facto rules to the Guidelines. This

Courtcould provide much needed guidance by

accepting this case for review. Examples

of these problems include the following:

hs Do the guidelines generally apply

to a continuing conee Laney which straddles

the effective date of the Sentencing

Guidelines. The Circuit Courts have

generally said "yes", but this issue has

not been considered by this Honorable

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alin ihal-t. | seo Ty = r A on 8th

Sr2t?ras- A otLAaATeS pt is aU Ovd (Sot

—_——_—_—_ — — _

te ® ORG nited Statec l1lliams 897

ay & a aves L a2 —~-TC WU w/ . Oo. © oO eS RF Aik ,

F.2d 1034 (10th Cir. 1990); United States

V. Pippin, 903 F.2d 1478 (llth Cir. 1990);

Sentencing Guidelines Commission,

"Questions Most Frequently Asked About the

Sentencing Guidelines", March 1990,

Questions 41, 51.

as Do the Guidelines apply if the

defendant commits no overt acts in

furtherance of the conspiracy after the

Guideline's effective date? The Circuits

have generally answered "yes", This issue

clearly applies to petitioner because he

committed no criminal acts relating to the

conspiracy after November 1, 1987. See,

e.g., United States v. Chambers, 944 F.2d

1253 (6th Cir. 1991); United States v.

Canino, 949 F.2d 928 (7th Cir. 1991);

United States v. Inafuku, 938 F.2d 972 (9th

Cir. 1991). The Fourth Circuit reached a

contrary conclusion in United States v.

Bakker, 925 F.2d 728 (4th Cir. 1991).

: 2 If the penalty for a conspiracy

increases during the lifetime of the

conspiracy, is it ex post facto to apply

the higher penalty? Most Circuits have

answered "yes", although no Court had

previously addressed the question raised in

this case as to whether the same rule

applies when the penalty for the conspiracy

remains the same, but the penalty for an

overt act in furtherance of the conspiracy

changes and that change drives the sentence

for the overall conspiracy. see, eé.g.,

United States v. Borelli, 336 F.2d 376 (2d

Cir. 1964), cert. denied, 379 U.S. 960

(1965); United States v. Sheffer, 896 F.2d

842 (4th Cir.), cert. denied, 111 S.ct. 432

(1990; United States v. White, 869 F.2d 822

(Sth Cir.), cert. denied, 490 U.S. 1112

(1989); United States v. Inafuku, 938 F.2d

972 (9th Cir. 1991).

4. -Is it a violation of the ex post

facto clause if an amendment to the

guidelines makes the punishment at the time

of sentencing greater than the punishment

at the time the offense was committed. The

Circuits have generally answered "yes". [It

is difficult to discern why this analysis

did not apply to Petitioner's case and why

the Second Circuit's decision is not in

conflict with the approach taken by that

Circuit and other Circuits in this

particular situation. See, e.g., United

States v. Molina, 952 F.2d 514 (D.C. Cir.

1992); United States v. Green, 952 F.2d 414

(D.C. Cir. 1991); United States v. Lam

Kwong Wah, 924 F.2d 298 (D.C. Cir. 1991);

United States v. Harotunian, 920 F.2d 1040

(lst Cir. 1990); United States v. Adeniyi,

912 F.2d 615 (2d Cir. 1990); United States

v._McAllister, 927 F.2d 136 (3d Cir.),

cert. denied, 112 S.Ct. 111 (1991); United

states v. Morrow, 924 F.2d 779 (4th Cir.

1991); United States v. Swanger, 919 F.2d

94 (8th Cir. 1990); United States v.

Saucedo, 950 F.2d 1508 (10th Cir. 1991);

United States v. Worthy, 915 F.2d 1514

(i288. CiF. 1990).

5. When does a defendant withdraw

making it ex post facto to apply increased

conspiratorial penalties to him? While

most Circuits are in agreement about the

general principles, the application of

those principles to particular cases has

divided the Circuits. This issue is also

plainly present in Petitioner's case. See,

e.g., United States v. Bodre, 948 F.2d 28

(1st Cir. 1991); United States v. Juodakis,

834 F.2d 1099 (1st Cir. 1987); United

states v. Nerlinger, 862 F.2d 967 (2d Cir.

1988); United States v. Steele, 685 F.2a

793 (3d Cir.), cert. denied, 459 U.S. 908

(1982).

This Court has not really definitively

addressed the issue in quite some time, and

it would be appropriate to grant certiorari

to clarify the issue for the Circuit

Courts. See, e.g., United States v. United

states Gypsum Co., 438 U.S. 422 (1979);

Hyde v. United States, 225 U.S. 347 (1912).

All of these reasons justify

consideration of the ex post facto claim.

B. THE PATTERN QUESTION

In H. ~ - Inc. Vv. Northwestern

Telephone Co,, 492 U.S. 229 (1989), this

Court redefined the meaning of "a pattern

of racketeering activity" as that term is

used in 18 U.S.C. § 1961 (5). Among other

things, this court held that proof of two

acts of racketeering alone were

insufficient to support either a criminal

or civil RICO clain. In addition to at

least two acts, there must also be a

"factor of continuity plus’ relationship

which combines to produce a pattern." 492

U.S. at _239. Continuity can be shown

either by a closed or open ended analysis.

Id. In a closed end analysis, there is no

risk of future illegal conduct, and a Court

must be able to identify "a series of

related predicates extending over a

substantial period of time." Id. In an

open ended analysis, the Court looks not

cnliy at the facts before it, but at whether

there is a threat of continued wrongful,

future activity. 429 U.S. at 241.

Relatedness requires a consideration of

whether there really was a pattern or

whether there was a series of separate,

isolated, or disconnected events. The

latter finding indicates the type of

sporadic activity which prevents a

determination that the requisite pattern is

present. 492 U.S. at 240. see, also,

Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479,

496 (1985). This Court also noted that

these principles were fact specific and

that "the development of these concepts

must await future cases." 492 U.S. at 242-

243.

Petitioner's RICO conviction was based

upon two racketeering acts. One was a 1976

murder; the second was his involvement ina

1979 sports’ book. Petitioner claimed

throughout that the initial pattern

evaluation must be based upon his personal

conduct rather than the conduct of others

nT a ee

and that these two widely separated and

Sporadic acts did not constitute a

sufficient pattern under the H. J. case.

Petitioner also claimed that the ten year

crime free period following the 1979 sports

book established that the acts’ were

isolated. Moreover, since the conspiracy

had ended, there was no issue of future

continuity so that the analysis should have

been conducted on a closed end basis.

This case raises a number of important

issues, and those issues are an independent

justification for the writ sought:

Le H. J. was a civil RICO case and,

therefore, the case did not address

problems peculiar to a criminal

prosecution.

Several Circuits have interpreted H.

J.'S pattern requirement far differently

when the case involves a criminal

enterprise. In those cases, the Courts

have held that unrelated acts may satisfy

the relatedness requirement as long as

those otherwise unrelated acts are related

to the RICO enterprise. United States v.

Angiulo, 897 F.2d 1169 (lst Cir.), cert

denied, 111 S.ct. 130 (1990); United States

v. Indelicato, 865 F.2d 1370 (2d Cir.) (en

banc), cert. denied, 107 L.Ed. aa. ze

(1989); United States vy. Eufrasio, 935 F.2d

3933 (34 Cir. 1991).

This approach is an important

exception to the H. J. rule. Moreover, the

exception has an extremely harsh impact on

a relatively minor player such as

Petitioner because the exception virtually

washes away the pattern requirement. The

Second Circuit has, in fact, substituted a

rule which states that two acts, without

more, are always equivalent to a pattern

when the enterprise is an association of

criminals. This is an important

modification to the H.J. rule which has far

reaching implications. It is thus a

modification which definitely deserves this

Court's close attention.

2. The criminal enterprise cases do

not deal with the continuity question ina

case such as this one where the enterprise

has ended and where the defendant's total

involvement in the enterprise consisted of

two very ancient racketeering acts. The

Second Circuit's erred because it

interpreted H.J.'s continuity prong in an

open ended fashion rather than a closed end

fashion. This mistake resulted in a

substantial miscarriage of justice, which

only this Court can correct.

It is Petitioner's position that since

the enterprise was out of business, there

was no risk of future activity.

Accordingly, when petitioner's conduct is

viewed against the total conduct of the

enterprise, his personal involvement was

minor, sporadic, and disconnected.

Accordingly, under H.J., the Second Circuit

Should have concluded that his personal

activity did not constitute a RICO pattern.

as In H. J., this Court made it

Clear that the principles it established

were fact specific and that the parameters

of the rules had to be developed by

subsequent cases. 492 U.S. at 231.

The Courts have struggled with the

pattern rules, and a reading of the cases

makes it obvious that there is no uniform

Or clear set of principles that have

evolved. see, e.g., Miranda v. Ponce

Federal Bank, 948 F.2d 41 (lst Cir. 1991);

Hughes vy. Conso-Pennsylvania Coal Co., 945

F.2d 594 (3d Cir. 1991); Brubaker v. City

Of Richmond, 943 F.2d 1363 (4th Cir. 1991);

Calcasieu Marine Nat. Bank v. Grant, 943

F.2d 1453 (5th Cir. 1991); Thompson v.

lala

Paasche, 950 F.2d 306 (pth Cir. 1991); JZ.

D. Marshall Intern. v. Redstart, Inc., 935

F.2d 815 (7th Cir. 1991); Lange v. Hocker,

940 F.2d 359 (8th Cir. 1991); Bacchus

Industries, Inc. v. Arvin Industries, 939

F.2d 891 (10th Cir. 1991); United States v.

Kotvas, 941 F.2d 1141 (11th Cir. 1991);

Pyramid Securities, Ltd. v. IB Resolution,

inc., 924 F.2d 34 (lst Cir. 1991).

These cases are only examples of the

difficulties which the Circuits are having.

They point out the benefit of further

guidance from this Court.

C. THE DEBT COLLECTION ISSUE

18 U.S.C. § 1961 (6) provides that a

RICO conviction may be based upon the

collection of an unlawful debt. In

addition to the two racketeering acts,

Petitioner had been charged and convicted

for two other acts. In the lower courts,

Petitioner argued that these acts did not

constitute debt collections and that even

if they did, one or two debt collections

without more should not suffice to support

a conviction. Among other’ things,

Petitioner argued that it was inconceivable

that the pattern requirement would have so

many qualifications, but that the debt

collection requirement would have none.

This issue was not reached by the

Second Circuit because the Court decided

the racketeering pattern question against

Petitioner. However, should this Court

find for Petitioner on the pattern

argument, the debt collection issue is

relevant, if only to give guidance upon

remand.

The debt collection issue is not well

developed. Petitioner has only located

three cases which address the issue. In

United States v. Pepe, 747 F.2d 632, 645

(llth Cir. 1984), the Court noted in

passing that one debt collection episode

would support a RICO conviction. There was

no analysis of the question. In United

States v. Vastola, 899 F.2d 211, 228 n.21

(3d Cir. 1990), the Court cited Pepe and

Stated, again without analysis, that a

Single debt collection was. sufficient.

Finally, in United States v. Giovanelli,

945 F.2d 479, 490-491 (2d Cir. 1991), the

Second Circuit in a case involving three

debt collections cited Pepe and Vastola and

held that a single debt collection, even

without more, would be sufficient.

While debt collection cases. are

obviously less frequent than racketeering

cases, the principle invoked is- an

important one, and deserves this Court's

consideration.

RICO is a harsh statute which imposes

draconian criminal and civil penalties. It

is intuitively bizarre that Congress could

have intended such a complicated definition

ofa racketeering pattern and, at the same

time, permitted the imposition of RIco

penalties upon a criminal Or civil

defendant who was involved in but a single

debt transaction.

Petitioner's case also illustrates the

point. Petitioner vigorously disputed the

alleged debt collections. Specifically, as

to the 1973 debt collection, he argued that

there insufficient evidence to establish

that this event was a collection of debt as

Opposed to some other distinct type of

criminal conduct.

Petitioner and a co-defendant hired

two men to beat and rob two Utica

bookmakers. The informant’ and only

government witness testified that he had

heard several explanations for the beating.

One explanation was that the enterprise

leaders had been hired by third parties to

administer the beating because the victims

owed money to these third party

individuals. Another explanation was that

the victims were beaten and robbed to

persuade them not to talk with the FBI.

The informant further testified that he

didn't know which explanation was correct.

Accordingly, the evidence was completely

unclear as to whether the beating related

to a debt collection or to some other

indepenent purpose. Accordingly, even if

the RICO analysis focussed upon debt

collections rather than pattern, this 1973

event should arguably not have been

considered when determining whether the

RICO prerequisites had been met.

As to the 1974 or 1975 transaction,

trial evidence made clear that Petitioner

did not make the loan and that he did not

collect any money. His sole participation

in the debt transaction was to pass along a

message that the enterprise leader wanted

his money. When the debtor told Petitioner

that he would Pay the enterprise leader

directly, Petitioner left scratchint his

head. It is Simply inconceivable that this

is the type of activity which Congress

envisioned when it passed the RICO statute.

It is equally inconceivable that this type

of activity could be the sole basis for a

mandatory twenty year sentence following a

RICO conviction.

Clarification is required, and the

need for this Clarification justifies

issuance of the writ.

CONCLUSION

WHEREFORE, Petitioner respectfully

Prays that this Court grant certiorari and

issue a definitive pronouncement on the use

Of a pre-guideline overt act to establish a

guideline sentence and a clarification on

the statutory pre-requisites to a RICO

offense. Such a decision would resolve

conflicting decisions between the Federal

Courts as well as to clarify two issues of

Significant jurisprudential significance.

Petitioner respectfully prays that this

Court grant plenary review, reverse the

decision of the United States Court of

Appeals for the Second Circuit and hold

that the use of two non-continuous

racketeering acts or one debt collection is

insufficient to support a conviction for

RICO conspiracy. Alternatively, Petitioner

prays that the Court vacate his sentence

and direct that he be re-sentenced using

factors other than the 1976 murder to

establish his guideline range.

July 28, 1992 Respectfully submitted,

DAVID LENEFSKY

Counsel of Record

18 E. 48th Street

New York, NY 10017

212/371-8787

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

January 23, 1992

Docket Nos. 91-1014, -1015, -1018, -1020,

-1062, -1319, -1334

UNITED STATES OF AMERICA,

Appellee

Vv.

JACK J. MINICONE, JR., also Known as

Jake, JACK ZOGBY, also known as Turk,

ANTHONY J. INSERRA, BENEDETTO CARCONE,

also known as Benny, RUSSELL E. CARCONE,

Appellants

Before:

TIMBERS, MINER, and ALTIMARI, Circuit

Judges

On appeals from judgments of

conviction entered after a jury trial in

the Northern District of New York, Howard

G. Munson, District Judge

Affirmed in part; vacated and remanded

in part.

TIMBERS, CIRCUIT JUDGE

Appellants Jack J. Minicone, Jr., Jack

Zogby, Russell E. Carcone, and Benedetto

Carcone appeal _ from judgments entered

December 28, 1990 and January 2, 1991 after

a jury trial in the Northern District of

New York, Howard G. Munson, District Judge,

convicting them of conducting the affairs

of an enterprise through a pattern of

racketeering activity in violation of 18

U.S.C § 1962 (c) (1988), and of conspiring

to conduct and participate in the affairs

of an enterprise in violation of 18 U.S.C.

§ 1962 (d) (1988). Appellant Anthony J.

Inserra appeals from a judgment entered

January 2, 1991, convicting him of

conspiring to conduct and participate in

the affairs of an enterprise in violation

of 18 U.S.C. § 1962 (da). Zogby also

appeals from the judgment entered January

2, 1991, convicting him of conspiring to

receive and transport stolen property in

violation of 18 U.S.C. § 372.

Appellants' chief contentions’- on

appeal are that there was insufficient

evidence to support their convictions; that

the district court erred in instructing the

jury; that the district erred in not

declaring a mistrial; and that the district

court erred in sentencing then. The

government cross-appeals, contending that

the district court erred in applying the

Sentencing Guidelines.

We affirm the convictions and

sentences of all appellants, except that we

vacate Minicone's sentence and remand his

case to the district court for the limited

purpose of resentencing him in accordance

with the Sentencing Guidelines.

i -

We shall summarize only those facts

and prior proceedings believed necessary to

an understanding of the issues raised on

appeal.

Following a jury trial, Minicone,

Zogby, Benedetto Carcone and Russell

Carcone were convicted of conducting the

affairs of an enterprise through a pattern

of racketeering activity (RICO), in

violation of § 1962 (c). They and Inserra

were also convicted of conspiring to

conduct and participate in the affairs of

an enterprise through a pattern of

racketeering activity (RICO conspiracy), in

violation of § 1962 (4d). Zogby was

convicted of conspiring to receive and

transport stolen property, in violation of

S ara

Appellants' convictions stemmed from

their alleged involvement ina wide-ranging

criminal enterprise that profited from

extortion, loansharking, illegal gambling,

and trafficking in stolen property during

the period from approximately 1973 to 1989.

The alleged enterprise was centered in

Utica, New York. It was run by unindicted

co-conspirators Anthony Falange and Angelo

Conte; both Falange and Conte died before

the indictment in this case was returned.

Cooperating witnesses Dennis Pritchard and

Michael Andrello also participated in the

enterprise.

The following is a brief account of

the appellants' principal activities as

disclosed by the evidence at trial.

(A)

In 1973, Minicone and Inserra asked

Pritchard to "do a score" on two local

bookmakers, Philip and Frank DeFazio, after

Falange and conte had been approached by

two individuals who were owed money by the

DeFazios. Pritchard and another man

proceeded to rough up the DeFazios and

stole-$8,000 in cash from them, $800-$900

of which they gave to Minicone and Inserra.

Minicone and Inserra did not "do the

score" themselves because they feared they

would be recognize by the DeFazios.

(B)

In 1976, Minicone, Zogby , and Inserra

decided to kill Al Marrone shortly after

his release from prison because they feared

that Marrone wanted to kill Falange, and

possibly them as well. They feared also

that Marrone wanted to take over their

territory. Minicone, Zogby, and Inserra

began planning Marrone's murder six months

beforehand. They initially contemplated

paying $10,000 to an inmate at the

penitentiary where Marrone was

incarcerated. - They rejected that idea,

however, and proceeded to interview several

other potential "hitmen". Ultimately, they

hired Edward Noel, who had spent time in

prison with Zogby, to help them kill

Marrone. Inserra, Minicone, Zogby, and

Pritchard met with Noel in the early fall

1976 in a restaurant in Utica to plan the

murder. In late September, Inserra and the

others showed Noel one of the weapons to be

used on Marrone, a semi-automatic rifle

with field scope. Two to three weeks

before Marrone's murder, Minicone asked to

borrow Pritchard's .38 caliber pistol

because he believed his own handgun might

not be powerful enough to protect him in

the event Marrone decided to strike riret.

On the night of October 2, 1976, while

Minicone and Inserra kept their distance

and monitored a police scanner, Noel,

Zogby, and another man shot Marrone dead on

the sidewalk in front of his girlfriend's

home.

Minicone and Inserra were indicted for

Marrone's murder. The indictments were

dismissed because Noel was a fugitive at

the time, and the state did not have the

non-accomplice corroboration required by

New York law. The state accepted a plea

from Zogby to a lesser charge of soliciting

murder, since Pritchard was not available

to testify at that time. Zogby later

confessed to his participation in the

murder when talking with District Attorney

Investigator Robert Graziano in Utica.

Zogby claimed, however, that he had not

fired the shots that killed Marrone.

(C)

On October 23, 1983, Thomas Bretti was

injured when a bomb on the steps of his

home exploded as he approached. The bomb

had been made by government witness

Andrello. It was planted by Minicone who

had been assigned a contract on Bretti's

life by Anthony Falange. Bretti had

stopped paying some Utica bookmakers and

had gotten into heated arguments with

Falange and Louis Brindisi, Falange's

attorney.

(D)

Appellants engaged regularly in the

extortion of local bookmakers. Inserra

once stated to Pritchard that "(tjhe way we

collect money is we scare people, we put

fear in them, we rough them up. -We have to

use violence, but as long as they are

scared, they will pay." The ubiquitous

Carl Mazza helped insure that the

bookmakers did not fall too far behind in

their payments. Local bookmakers were

forced to make regular stops at Benny's

Swap Shop at 512 Albany Street, Utica, a

headquarters of appellants, in order to

make their monthly "protection payment",

George "Butch" Sandouk, a longtime

Utica bookmaker, regularly stopped by

Benny's Swap Shop to. make protection

payments to the enterprise. On numerous

occasions he was observed delivering the

10a

payments to Benede4tto Carcone, Russell

Carcone, and Minicone. On January 12,

1988, prior to Sandouk's arrival at the

Swap Shop, Benedetto Carcone informed

Minicone that Sandouk was "like clockwork."

When Sandouk arrived, Minicone and

Benedetto Carcone discussed requiring

Sandouk to pay extra during the basketball

season:

"Carcone: Hey, how are you Butch?

Minicone: ...{D]Jid he tell you

about the baskets?

Sandouk: What baskets?

Minicone: You have to pay for the

baskets, the baskets.

Sandouk: Yeah.

Minicone: Alright

» 2 -@

Sandouk: Yeah...alright...this

is towards

Minicone: Yours is twenty-five

because your [sic] small right?

Sandouk: Yeah, I Know.

lia

Carcone: And you don't have to

ride around saying anything to

anybody that your [sic] paying

this thing.

Minicone: No, he knows better, he

had his first time...he knows

better.

Carcone: Yeah.

Sandouk: OKay.

as & &

Carcone: If anybody asks you,

you're doing the same as you

were...did before.

Sandouk: Nobody knows nothing, I

don't say nothing."

George "Hoppy" Tamer operated a

bookmaking operation out of Utica for many

years. He also ran a card game that

allowed him to take a cut out of the pot.

Around 1983, Tamer was approached by

Anthony Falange, who told him to make

payments of $50-per-week so he "wouldn't

have any problems". In approximately 1986

or 1987, at the request of Falange, Tamer

began making the payments to Benedetto

12a

Carcone. Tamer usually sent his brother-

in-law, Hiklel Yaghy, to make the payments.

Yaghy would deliver the payments to Carcone

at the Swap Shop at 512 Albany Street.

Tamer also made occasional payments to

Minicone. On one occasion, Tamer paid

Minicone when he was seated at a bar with

Inserra and Pritchard. After Tamer walked

away, Minicone said, "This is a joke. Its

like taking candy from a baby with these

people. Keep them scared, they keep

paying. They even find us." Inserra

agreed.

(E)

Pritchard and Inserra participated in

a bookmaking operation during 1978-1979.

Inserra later was convicted and fined on

charges relating to that operation.

Pritchard assisted Inserra in collecting

and paying off bets. Minicone also took

and collected bets.

13a

(F)

Benedetto and Russell Carcone, along

with two other individuals, conducted a

football parlay sheet operation out of 512

Albany Street between November 1987 and

April 1988. They were not successful in

the endeavor. Benedetto Carcone once

commented to Falange that "I'm the only f--

-ing bookmaker in town that's losing money

in these f---ing things."

(G)

Zogby engaged in the fencing of stolen

property, much of which was supplied by

government witness Pritchard. Pritchard

also sold stolen goods to Falange and

Benedetto Carcone, who resold the goods

from their respective Swap Shops.

Pritchard and others would obtain

merchandise on shoplifting or "boosting"

trips throughout the Northeast. Zogby

became anxious when he learned that

14a

Pritchard had begun cooperating with the

government; he commented "They got me with

interstate transportation...."

(H)

Appellants -were also_ active in

loansharking. In a conversation recorded

in October 1986, Inserra commented to

Pritchard that "Benny's in charge of the

loansharking", and [y]Jou pay 10% a week or

month, or whatever the hell it is,

interest." Pritchard and Andrello both

borrowed money at usurious rates to finance

their burglary and financing ventures.

Once, when Andrello fell behind in his

paymente, Minicone and Inserra paid him a

visit to tell him that "Ange [Conte] wants

that money...." Andrello told them he

would pay Conte in person. He did so the

next day.

In December 1987, Minicone brought

15a

Salvatore Spina to 512 Albany Street to

discuss borrowing $2,500 for six months.

Benedetto Carcone told him that’ the

interest rate would be 2 points a week --

10 points a month." Later that day,

Carcone told Falange about the individual

who wanted to borrow money, saying that

Minicone had okayed it. When Spina later

was arrested and could no longer make the

payments, Minicone indicated to Carcone

that he himself would have to make good on

the loans since he had vouched to Falange

for Spina.

(I)

When appellants learned of the

government's investigation involving them

and of the cooperation of Pritchard and

Andrello, they discussed the matter amongst

themselves with grave concern. Minicone

commented to Benedetto Carcone, "You know

how many people are going to jail? he was

16a

wired two f---ing years." They planned to

kill Pritchard, but they were frustrated

because security around Pritchard was too

tight and they could not get close enough

to kill him.

(J)

Following a jury trial, appellants

were convicted of the offenses set forth in

the first paragraph of this opinion.

Minicone was sentenced to a total of

391 months imprisonment and 3 years of

Supervised release. Inserra was sentenced

to a total of 240 months imprisonment and 3

years of supervised release. Zogby was

sentenced to ae total of 78 months

imprisonment and 3 years of supervised

release. Benedetto Carcone was sentenced

to a total of 30 months imprisonment and 2

years of supervised release. Russell

Carcone was sentenced to a total of 18

months imprisonment and 2 years of

17a

supervised release. Each of the appellants

appeal. The government cross appeals the

sentences of Minicone, Zogby, Russell

Carcone, and Benedetto Carcone.

For the reasons set forth below, we

affirm the convictions and sentences of all

appellants, except we vacate Minicone's

sentence and remand his case for the

limited purpose of resentencing him in

accordance with the Sentencing Guidelines.

IX.

(A)

inserra, Zogby, Benedetto Carcone and

Russell Carcone contend that the evidence

against them was insufficient as a matter

of law to support their convictions. When

reviewing such claims, we view the evidence

in the light mest favorable to the

government, United States v. Stanley, 928

F.2d 575, 576 (2 Cir.), cert. denied, 112

S.Ct 1141 (1991), drawing all reasonable

18a

inferences and resolving all issues of

credibility in favor of the verdict.

United States v. Macklin, 927 F.2d 1272,

1277 (2 Cir.), cert. denied, 112 S.ct. 146

(1991).

Zogby and Russell Carcone contend that

the evidence was insufficient to support

their substantive RICO convictions. Zogby

concedes that there was sufficient evidence

to support the jury's finding that he

committed the predicate acts which charged

the Marrone murder and receiving and

transporting stolen property, but he

contends that these crimes were unrelated

to any enterprise and did not constitute a

pattern of racketeering.

Similarly, Russell Carcone contends

that the two predicate acts for which he

was charged -- the extortion of George

Sandouk and the conduct of the football

parley operation -- did not amount to

19a

participation in the affairs of an

enterprise through a pattern of

racketeering. Benedetto Carcone makes the

same argument with respect to the predicate

acts for which he was charged --

bookmaking, multiple acts of extortion of

bookmakers -- and two acts of illegal debt

collection.

Proof of a RICO violation pursuant to

§ 1962 (c) requires a showing that an

"enterprise" engaged in a "pattern" of

racketeering activity. An enterprise is "a

group of persons associated together for a

common purpose of engaging in a course of

conduct", and it "is proved by evidence of

an ongoing organization, formal or

informal, and by evidence that the various

associates function as a continuing unit."

United States -v. Turkette, 452 U.S. 576,

583 (1981).

"(Tjhe pattern requirement should be

20a

interpreted to prevent the application of

RICO to perpetrators of '‘isolated' or

‘sporadic' criminal acts". United States

v. Indelicato, 865 F.2d 1370, 1383 (2 Cir.

1989) (en banc). Two predicate acts will

suffice to prove a pattern of racketeering,

provided the prosecution also shows that

"the racketeering predicates are related,

and that they amount to or pose a threat of

continued criminal activity." H.J. Inc. v.

Northwestern Bell Tel. Co., 492 U.S. 229,

239 (1989) (emphasis in original).

The requirement of "relatedness"

embodies two different concepts. The

racketeering acts must be related to each

other ("horizontal" relatedness), and they

must be related to the enterprise

("vertical" relatedness). United States v.

Long, 917 F.2d 691, 697 (2 Cir. 1990).

Evidence of relatedness and continuity or

the threat of continuity may arise from

21a

facts external to the two predicate acts,

United States v. Kaplan, 886 F.2d 536, 542

(2 Cir. 1989), cert. denied, 493 U.S. 1076

(1990); Indelicato, supra, 865 F.2d at

1383, including the nature of the RICO

enterprise itself. Kaplan, supra, 886 F.2d

at 542; Indelicato, supra, 865 F.2d at

1383. Two racketeering acts "are not

directly related to each other’ may

nevertheless be related indirectly because

each is related to the RICO enterprise."

Indelicato, supra, 865 F.2d at 1383.

Moreover, "[(w]jhere the enterprise is an

entity whose business is’ racketeering

activity, an act performed in furtherance

of that business automatically carries with

it the threat of continued racketeering

activity." Id. at 1383-84; Unite States v.

Coiro, 922 F.2d 1008, 1017 (2 Cir.), cert.

denied, 111 S.Ct. 2826 (1992); Kaplan,

Supra, 886 F.2d at 542; see also, H. J.

22a

Inc., supra, 492 U.S. at 242-243 ("(Tjhe

threat of continuity is sufficient

established where the predicates can be

attributed to a defendant operating as part

of a long-term association that exists for

criminal purposes.")

The requisite nexus between the RICO

enterprise and the predicate racketeering

acts may be established by evidence that

the defendant was "'enable to commit the

predicate offenses solely by virtue of his

position in the enterprise or involvement

in or control over the affairs of the

enterprise,'" or that "'the predicate

offenses are related to the activities of

that enterprise.'" United States v.

Robilotto, 828 F.2d 940, 947-48 (2 Cir.

1987) (emphasis in Original), cert. denied,

484 U.S. 1011 (1988) (quoting United States

Vv. Scotto, 641 F.2d 47, 54 (2 Cir. 1980),

cert. denied, 452 U.S. 961 (1981)).

alias

23a

Zogby contends that his involvement in

the Marrone murder and his stolen property

transactions were merely isolated dealings

and that he was acting on his own personal

behalf, not as a member of the enterprise.

Although Marrone had threatened the lives

of Inserra, Zogby, and Minicone, the

threats stemmed from Marrone's plan to take

over what he believed was his -- control of

the operation in the Oneida County area.

Moreover, Marrone's murder was perpetrated

through the joint efforts of Zogby,

Minicone, and Inserra. The record supports

the jury's finding that the murder of

Marrone was accomplished as part of the

appellants' long-term association with the

enterprise and was performed for the

purpose of enriching the enterprise's

members and consolidating its power.

Indelicato, supra, 865 F.2d at 1383.

Likewise, there was sufficient

24a

evidence to support the jury's finding that

zogby's conduct of the stolen goods

operation was related to the conduct of the

enterprise. Pritchard, a long-time

associate of the enterprise, did the bulk

of the shoplifting for Zogby. Pritchard

also sold stolen property directly to

Falange and Benedetto Carcone.

Furthermore, Falange, Inserra, and Minicone

loaned money to Pritchard to help finance

his "boosting" trips. There was sufficient

evidence to support the jury's finding that

Zogby's participation in the stolen goods

Operation, together with his participation

in the murder of Marrone, constituted a

pattern of racketeering activity in

furtherance of the enterprise's affairs.

The evidence of Benedetto Carcone's

participation in multiple acts of extortion

Of local bookmakers and collection of

unlawful debts provided ample basis for the

25a

jury's finding that he had participated

"directly or indirectly, in the conduct of

[the] enterprise's affairs through a

pattern of racketeering activity or

collection of unlawful debt." § 1962 (c).

Indeed, the extortion and debt collection

activity engaged in by Benedetto Carcone,

and by the enterprise in general, is at the

heart of the conduct targeted by the RICO

statute. H.J. Inc., supra, 492 U.S. at 245;

Russello v. United States, 464 U.S. 16, 26

(1983); Turkette, supra, 452 U.S. at 591.

Such acts of extortion and illegal debt

collection inherently exude a "pattern" and

a threat of continuing criminal activity.

The evidence indicates that Russell

Carcone's participation in the affairs of

the enterprise may have been less extensive

than that of the other appellants.

Nevertheless, the two racketeering acts

with which he is charged -- participating

26a

in a gambling operation and in the

extortion of Sandouk -- support the jury's

conclusion that he engaged in a pattern of

racketeering in furtherance of the

enterprise's affairs. Although Russell

Carcone's acceptance of extortion payments

from Sandouk, in violation of 18 U.S.C. §

1955, clearly was in furtherance of the

enterprise's affairs, he contends that his

RICO conviction should be reversed because

the bookmaking operation was unrelated to

the affairs of the enterprise. We hold

that there was sufficient evidence for a

jury to ” reasonably infer otherwise.

Moreover, the evidence showed that Falange,

the enterprise's boss, was aware of the

bookmaking operation. In light of the

enterprise's pervasive involvement in local

bookmaking activities, the jury's finding

that the bookmaking operation was

sufficiently related to the affairs of ti.e

27a

enterprise will not be disturbed.

Although the relationship between

Sandouk's extortion and the bookmaking

operation, standing by themselves, appears

tenuous, evidence external to the acts

themselves establishes the requisite

"pattern". Here, the enterprise itself

provides the requisite — between

Russell Carcone's participation in

bookmaking and extortion. Kaplan, supra,

886 F.2d at 542; Indelicato, supra, 865

F.2d at 1383; United States v. Masters, 924

F.2d 1362, 1366 (7 Cir.), cert. denied, 111

S.Ct. 2019 (1991). Appellants constituted

an informal organization for the common

purpose of engaging in an ongping course of

criminal conduct, Turkette’ supra, 452 U.S.

at 583, including extortion, loansharking,

illegal gambling, and trafficking in stolen

property. Russell Carcone's participation

in the bookmaking operation and the

28a

extortion of Sandouk, on the specific facts

of this case, demonstrate a pattern of

racketeering activity.

Inserra contends that his involvement

in the Marrone murder and in the gambling

operation were isolated acts unrelated to

the activities of the enterprise and

therefore were insufficient to support the

conspiracy charge against him. To prove a

RICO conspiracy under § 1962 (da), the

government must show that the defendant

agreed to participate in two predicate

racketeering acts and he knew that the

general nature of the conspiracy extended

beyond his individual role. United States

v. Rastelli, 870 F.2d 822, 828 (2 Cir.

1989), cert. denied, 493 U.S. 982 (1989).

As stated above, the Marrone murder

suffices as a predicate act sufficiently

related to the enterprise's activities. We

are invited to hold, however, that the

29a

Sports book operation was not sufficiently

related to the enterprise. . We decline the

invitation. The operation was run out of

Inserra's house. Pritchard testifies that

he participated in the sports book

operation and that Minicone took bets over

the telephone and helped collect money from

the gamblers. Pritchard also testified

that the gambling operation was run by

Inserra's brother, Mook, and that Anthony

Inserra worked for Mook.

As the government points out, it is

inconceivable that Pritchard, Minicone, and

Inserra could have been participating in

the gambling operation without -the’

enterprise also being involved. Indeed, as

with Russell Carcone, Inserra's conviction

is supported by evidence regarding the

enterprise's pervasive involvement in local

gambling. ~The jury reasonably could have

found that the gambling operation and the

——

30a

murder of Marrone "form(ed]) a pattern

defined by the purposes of the enterprise."

Masters, supra, 924 F.2d at 1366. The

question of whether acts form a pattern

"rarely is a problem with a criminal

enterprise, as distinct from a lawful

enterprise that commits occasional criminal

acts." Id.

(B)

Inserra contends that he withdrew from

the conspiracy more than five years before

the indictment was handed down in August

1989 and that the RICO conspiracy charge

therefor was time-barred pursuant to 18

U.S.C. § 3282 (1988). To escape liability,

Inserra would have to prove some act that

affirmatively established that he disavowed

his criminal association with the

conspiracy, United States v. Borelli, 336

F.2d 376, 388 (2 Cir. 1964), cert. denied,

379 U.S. 960 (1965), and that he

31la

communicated his withdrawal to his co-

conspirators. Nerlinger, supra, 862 F.2d at

974. Here, Inserra bases his claim of

withdrawal on his serious falling out with

Minicone -- to the point that Minicone

shotgunned Inserra's home -- in the early

1980's and that at that time Minicone had

assumed a strong position within the

enterprise. The dispute between Minicone

and Inserra arose over the collection of x

money from gamblers. Inserra had collected

the money but kept Minicone's share because

Minicone owed him money. Minicone was so

incensed that he shot out the windows of

Inserra's kitchen. At a sit-down with

enterprise boss Falange, they were ordered

to settle their differences. Although

Inserra and minicone apparently remained on

less-than-friendly terms, there is evidence

that Inserra maintained his connection with

the conspiracy. In January 1988, Inserra

32a

asked Benedetto Carcone for 9 mn. bullet,

although the ammunition was not supplied to

him. In April 1988, Inserra stopped by the

Swap Shop and told Carcone to get word to

Falange that "there's something f---ing

coming down."

We hold that there was sufficient

evidence to support the jury's finding that

Inserra had not withdrawn from the

conspiracy.

(C)

Inserra and Zogby also contend that

the district court failed to properly

instruct the jury on the RICO counts.

Specifically, they contend that the court

failed to inform the jury that the

predicate acts must be related to each

other and to the enterprise. With respect

to the requirement that the predicate acts

be related to the enterprise and to each

other, the court Clearly instructed the

33a

jury that:

"The government must still

convince you, beyond a reasonable

doubt, that these predicate

racketeering acts were united or

related to each other in such a

way that you can honestly say

that you have been convinced

beyond a reasonable doubt that

there is a pattern of

racketeering which links at least

two of these acts as to each

Defendant to the pattern which

the government alleges...[I]}t is

the quality and nature of those

acts and how they are related to

each other and to the alleged

enterprise which, upon sober and

reasonable reflection, you may

Say do or do not make out a

consistent and unifying pattern

Of conduct through which the

enterprise conducted its

affairs."

Moreover, the court instructed the jury

that:

"The acts of racketeering must

also be part of a continuing

course of conduct. The

continuity required refers either

to a closed period of related

conduct or to past conduct that

by its nature projects into the

future with the threat of

repetition."

We hold that the district court

34a

properly instructed the jury regarding the

requirement that the predicate acts be

related to each other and to the

enterprise. -

(D)

Minicone, Inserra, Russell Carcone,

and Zogby contend that a mistrial should

have been declared because of the "grossly

prejudicial incidents" they say were

attributable to the prosecution.

"(Rjeversing a criminal conviction for

prosecutorial misconduct is a drastic

remedy that courts generally are reluctant

to implement." United States vy. Valentine,

820 F.2d 565, 570 (2 Cir. 1987). There can

be no reversal unless appellants can

demonstrate "substantial prejudice" which

deprived them of their right to a fair

trial. Id. .

Zogby claims that the jury was tainted

during jury selection by the comment of one

35a

Prospective juror to the effect that

another prospective juror, after being

excused, had indicated to another

prospective juror that the case was about

"the mob", The latter and those within

earshot Subsequently were excused. Another

Prospective juror commented that the

indictment read like a novel, and a third

Prospective juror, who Subsequently was

excused, made a joking reference about

Organized crime. Although one of the

Prospective jurors who heard these comments

waS not excused, the carefully instructed

the jurors that the case did not involve

the mafia and warned them not to discuss

the case.

Inserra and Minicone also complain of

three occasions during the trial when

witnesses alluded to criminal conduct not

charged in the indictment. The court

struck such testimony and instructed the

36a

jury to disregard it. Furthermore, after

hearing argument on the issue, the court

determined that the incidents were

attributable to the government's witnesses,

not to the prosecutor.

Appellants also claim that they were

prejudiced by- a witness who was in such

poor condition (due to a car accident

unrelated to the case) that he had to be

brought on a stretcher into the courtroom

to testify. The judge had not yet entered

the courtroom. The jury reentered the.

courtroom before the judge. The witness

subsequently was removed from the court and

his testimony was taken by deposition. The

court instructed the jury that the

witness's injuries were the result of a car

accident and were unrelated to this case.

We hold that the appellants have

failed to demonstrate substantial prejudice

which denied them their right to a fair

tiene

37a

trial.

(E)

Minicone contends that a taped

conversation between Pritchard and Inserra

was not admissible against him as a

statement of a4 conspirator made in

furtherance of the conspiracy, e.g.,

Rastelli, supra, 870 F.2d at 837, because

Pritchard, at the time of the conversation,

WaS an agent of the government. United

States v. Birnbaum, 337 F.2qa 490, 494-95 (2

Cir. 1964). He contends that, since the

tape was not redacted to exclude reference

to him, he should have been granted a

separate trial. Bruton v. United States,

391 U.S. 123 ( 1968).

Minicone's contention is without

merit, since it is immaterial that

Pritchard was working for the government at

the time that the conversation was

recorded. "So long as the declarant and

38a

the party against whom the statement was

offered in court were members of a

conspiracy at the time the statement was

made, any witness who heard the statement

may recount it at trial, whether the

statement was made to a conspiracy member

or not..." 4 Weinstein & Berger,

Weinstein's Evidence, 4 801 (d) (2) (E) (01),

Pp. 801-305 (1991); United States v. Long,

supra, 917 F.2d at 701; United States vy,

Beech-Nut Nutrition Corp., 871 F.2d 1181,

1199 (2 Cir.), cert. denied, 493 U.S. 933

(1989). The district court's finding that

the statement was intended to promote the

goals of the conspiracy is reviewed

according to the Clearly erroneous

standard. Long, supra, 917 F.2d at 701;

Beech-Nut, Supra, 871 F.2d at 1198-99,

Certainly, this finding was not Clearly

erroneous.

Moreover, to overturn a conviction

39a

based upon the denial of a severance

motion, a defendant must show that he was

So severely prejudiced that, in effect, he

was denied a fair trial -- not only that

his chances would have been improved at a

separate trial. United States v. Scarpa,

913 F.2d 993, 1015 (2 Cir. 1990). We hola

that Minicone's contention that the

district court committed reversible error

in refusing to grant his motion for a

" severance is without merit.

aid.

(A)

Inserra and Minicone contend that the

district court erred in sentencing them

under the Sentencing Guidelines. We hold

that Minicone's claims, including among

others, that he was a minor or minimal

participant in the crimes charged, are

without merit. Inserra's claims that the

Guidelines should not have been applied to

40a

him because he withdrew from the conspiracy

prior to November 1, 1987, when the

Guidelines took effect. Since we have

already held that MInserra failed to

establish that he affirmatively withdrew

from the conspiracy, his claim that the

Guidelines should not have been applied to

him is also without merit.

(B)

Inserra contends that the court

improperly used the first degree murder

guidelines to establish his base offense

level. Although New York law would have

categorized the murder of Marrone only as

second degree murder, the task of the

district judge was to find the offense

level corresponding to the most analogous

federal offense. Section 2E1l.1. According

to the New York Penal Law § 125.25, a

person is guilty of murder in the second

degree when, with intent to Cause the death

4la

of another, he causes the death of such

person or third person. 18 U.S.C. § llil

(1988) defines first degree murder as

"willful, deliberate, malicious, and

premeditated killing".

We hold that the district did not err

in concluding that the most analogous

federal offense was first degree murder

under § 1111.

(C)

The government asks us to hold that

the district court erred, as a matter of

law, in using Zogby's solicitation of

murder conviction only in calculating his

criminal history and not in calculating his

base level offense. The court applied

Guideline §2E1.1, Note 4, which provides

that: _*

"‘Cjertain conduct may be charged

in the count of conviction as

part of a ‘pattern of

racketeering activity' even

though the defendant has

42a

previously been sentenced for

that conduct. Where such

previously imposed sentence

resulted from a conviction prior

to the last overt act of the

instant offense, treat as ap

prior sentence under §

4Al.2({a)(1) and not part of the

instant offense...If this

treatment produces an anomalous

result in a particular case, a

guideline departure may be

warranted.

The government contends that since Note 4

applies only when a defendant previously

has been sentenced for certain "conduct",

and Zogby previously was sentenced only for

soliciting a murder, Note 4 should not have

barred the conduct charged and proved in

this case -- the actuai murder. and

activities leading up to that murder -- in

calculating his base offense level.

This presents what appears to be an

issue of first impression in our Court.

Although the government's contention

strikes us as having some merit, we hold

that the district court reasonably

43a

construed Note 4 to mean that the conduct

underlying the previously imposed sentence

should not be used in calculating the base

level for the instant offense.

(D)

The government also contends that the

district court erred in sentencing Minicone

Sy departing downward to a total of 32

years and 7 months rather than imposing the

statutory maximum of 40 years. The court

waS motivated by a desire to avoid the

unfairness which would result from the

"grave disparity" between his sentence and

that of the co-defendants. The court felt

that "to blindly impose two 20-year

consecutive sentences for this Defendant

would, in the Court's opinion, directly

contradict one of the main goals in

guideline sentencing, that is, to eliminate

sentencing disparity." Disparity between

the sentence of individual co-defendants,

44a

however, is not a proper basis for the

downward departure made by the district

court here. United States v. Restrepo, 936

F.2d 661, 671 (2 Cir. 1991) (quoting United

States v. Joyner, 924 F.2d 454, 460-61 (2

Cir. 1991)) ("To reduce the sentence by a

departure because the judge believes that

the applicable range punishes the defendant

too severely compared to a co-defendant

creates a new and entirely unwarranted

disparity between the defendant's sentence

and that of all similarly situated

defendants throughout the country.").

We hold that the district court abused

its discretion in granting Minicone a

downward departure to avoid a disparity

between his sentence and the sentence and

that of his co-defendants. We therefore

vacate Minicone's sentence and remand his

case for the limited purpose of

resentencing him in accordance with the

45a

Sentencing Guidelines.

IV.

To summarize:

We hold that the evidence was

sufficient to support appellants'

convictions under the RICO statute, 18

U.S.C. § 1962 (c) and (qd). We also hold

that the district court properly instructed

the jury on the necessary elements of the

crimes charged. We further hold that the

district did not err in refusing to declare

a mistrial. With the exception of

Minicone's sentence, we hold that the

district court did not err in sentencing

appellants and all convictions are

affirmed. With respect to Minicone, we

vacate his sentence and remand his case to

the district court for the limited purpose

of resentencing him in accordance with the

Sentencing Guidelines. We find no merit in

the remainder of the appellants' claims on

46a

appeal.

Affirmed in part; vacated and remanded in

part.

47a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States

of the United States Court of Appeals for

the Second Circuit, held at the United

States Courthouse in the City of New York,

on the thirtieth day of April, one thousand

nine hundred and ninety-two.

UNITED STATES OF AMERICA,

-V.- > @€ ks s

NUMBER:

91-1014,°-

1015, -1018,

-1020, -1062,

-1319, -1334

MINICONE, ET.AL.

A petition for rehearing filed herein

by counsel for appellant ANTHONY INSERRA

and the panel that heard the appeal having

granted said petition for rehearing to the

extent of amending opinion. In all other

respects the petition for rehearing is

denied in an opinion filed on April 13,

1992.

It is further noted that the

suggestion for rehearing in banc has been

transmitted to the judges of the court in

regular active service and that no such

judge has requested that a vote be taken

48a

thereon.

ELAINE B. GOLDSMITH

Clerk

49a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

April 13, 1992

DOCKET NOS. 91-1014, -1015, -1018, -1020,

UNITED STATES OF AMERICA

Appellee

Vv.

JACK J. MINICONE, also Known as Jake,

JACK ZOGBY, also Known as Turk,

ANTHONY J. INSERRA, BENEDETTO CARCONE,

also known as Benny, RUSSELL E. CARCONE

Appellants

Before:

TIMBERS, MINER, and ALTIMARI,

Circuit Judges

Per Curiam:

The petition for rehearing of

appellant Inserra is granted to the extent

of amending our opinion and by adding the

following immediately after Part III (B) on

—

50a

page 1305 of the slip opinion:

"Inserra also contends that’ the

application of the Guidelines to him

violates of the Ex Post Facto Clause of the

Constitution, U.S. Const. art. 1, § 9.

Prior to November 1, 1987, a person

convicted of a RICO conspiracy faced an

indeterminate sentence of not more than 20

years. 18 U.S.C. § 1963 (superseded).

Under the Guidelines, the sentence instead

is based on the highest offense level

applicable to the underlying racketeering

activity, if that offense level exceeds 19.

Guideline § 2El.1. The highest offense

level here was 43, based upon the 1976

murder, and calls for the 20 year sentence

the district court imposed.

We have found that in general no Ex

Post Facto violation occurs by application

of the Guidelines to ‘straddle crimes",

that is, crimes beginning before the date

5la

of the Guidelines, but continued

thereafter. United States v. McCall, 915

F.2d 811, 816 (2 Cir. 1990); United States

v. Story, 891 F.2d 988, 991-992 (2 Cir.

1989). In this case, Inserra was sentenced

for a RICO conspiracy active between 1973

and 1989. While Inserra himself committed

no predicate acts after the date of the

Guidelines, he did not withdraw from the

conspiracy, and therefore remains fully

liable for the acts of co-conspirators.

United States v. Bafia, 949 F.2d 1465, 1477

(7tn Cir. 1991).

We recognize, as unique to Inserra's

case, that no act of any conspirator

committed during the guidelines period,

even if charged to Inserra, could result in

"> 20 year sentence imposed, and that the

length of Inserra's sentence is determined

solely on the basis of pre-Guidelines

conduct. We note, however, that recidivist

——————

52a

statutes, which operate similarly in this

respect, do not violate the Ex Post Facto

Clause even if enacted after the commission

of the past crimes forming the basis of the

recidivist penalties. Gryger v. Burke, 334

U.S. 728, 7342 (1948) (citations omitted)

('The [recidivist sentence] is not to be

viewed as either a new jeopardy or

additional penalty for the earlier crimes.

It is a stiffened penalty for the latest

crime, which is considered to be an

aggravated offense because a repetitive

one.')

The RICO conspirators in this case

continued to act after the effective date

of the law here being challenged, with full

notice of the consequences. As in the case

of the recidivist statute, fair warning of

the penalty existed notwithstanding that

the penalty itself is mechanically a

function of a crime committed prior to the

53a

passage of the sentencing law. Since

Inserra did not withdraw from the

conspiracy, he therefore may be charged

with notice that his co-conspirators had

when they acted. The fair notice and

reliance purposes of the Ex Post Facto

Clause, Miller v. Florida, 482 U.S. 4232,

429-430 (1987), are not violated by the

application of the Guideline to Inserra."

In all other respects, the petition

for rehearing is denied.

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.