Petition for Writ of Certiorari — Eisen v. United States
Supreme Court brief1993
Ask Donna
What actually matters in this document.
Text
92-919 |Trro
No. ROY 2 t 992
IN THE
Supreme Court of the United States
OcToOBER TERM. 1992
MORRIS J. EISEN,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
JOHN W. MITCHELL
Counsel of Record
LaRossa, MITCHELL & Ross
Attorneys for Petitioner
41 Madison Avenue
New York, New York 10010
(212) 696-9700
Questions Presented
A. Whether the Second Circuit Court
Of Appeals and various other Circuit
Courts of Appeals have misapplied the
decision of this Court in United States v.
Nardello, 393 U.S. 286 (1969), and in so
doing have misconstrued the provision of
RICO requiring state predicates to be
"chargeable under state law." (28 UV.8.C.
§ 1961[1][A}).
a. Whether the RICO statute is
unconstitutionally vague both on its face
and as applied.
ii
List of Parties
Apart from the petitioner, Morris J.
Eisen, the other parties to the appeal
before the United States Court of Appeals
for the Second Circuit, whose judgment is
sought to be reviewed, were Joseph P.
Napoli, Harold M. Fishman, Dennis Rella,
Marty Gabe, Geraldine G. Morganti and Alan
Weinstein.
Table of Contents
Questions Presented
List of Parties
Table of Authorities
Opinions Below
Statement of Jurisdiction
Constitutional Provision
Statement of the Case
Statement of Facts
REASONS FOR GRANTING THE WRIT
I.
THE SECOND CIRCUIT COURT OF
APPEALS -- AND VARIOUS
OTHER CIRCUIT COURTS OF
APPEALS -- HAVE APPLIED THE
RICO STATUTE IN A MANNER
WHICH CONFLICTS WITH THE
DECISION OF THIS COURT IN
UNITED STATES v. NARDELLO.
MORE-OVER, A SPLIT IN THE
CIRCUITS EXISTS AS TO
WHETHER OR NOT UNITED
STATES v. NARDELLO PERMITS
THE “NONINCORPORA-TION" OF
THE ELEMENTS OF STATE
OFFENSES WHICH SERVE AS
PREDICATES FOR FEDERAL
PROSECUTIONS UNDER THE
TRAVEL ACT AND/OR RICO
iii
14
14
iv
II. IF 18 U.S.C. § 1961(1) (A)
DOES NOT REQUIRE THE
GOVERNMENT TO PLEAD AND
PROVE ALL OF THE ELEMENTS
OF STATE OFFENSES RELIED
UPON AS RICO PREDICATES --
BUT RATHER REQUIRES ONLY
THAT THE CONDUCT ALLEGED
"BE TYPICAL OF THE SERIOUS
CRIME DEALT WITH BY STATE
STATUTES" -- THEN IT IS
UNCONSTITUTIONALLY VAGUE.
THE VAGUENESS OF THIS
SECTION, COUPLED WITH THE
DEMONSTRATED VAGUENESS OF
THE “PATTERN” REQUIREMENT,
RENDERS THE RICO STATUTE AS
A WHOLE UNCONSTITUTIONALLY
VAGUE, BOTH ON ITS FACE AND
AS APPLIED ae oa a oe 1 oe 46
a. The Constitutional Problems
Presented By Section
SOGTIRIAAS «6 x. 4 47
b. The Constitutionality of
Pattern “yw ot eeu TS ere 57
CONCINGION .« « se ss sts eons es » €
Appendix
Opinion of the United States
Court of Appeals for the
a aS |S nn ee
Order of the United States Court
of Appeals for the Second Circuit
Denying Petition for Rehearing
with Suggestion for Rehearing
En Banc oe oe oe Se ee ee a a ae ee ee a
Order of the United States Court
of Appeals for the Second Circuit
Staying the Issuance of the Mandate
Pending Determination of Petition
for a Writ of Certiorari and Granting
Bail a a ae a a ee a ee a a ee ee
vi
Table of Authorities
Cases Page
Ardestani v. I.N.S.,
U.S. ‘
aaa @.CE. Sis eb) >t eee 49
Blue Chip Stamps v. Manor Druq Stores,
421 U.S. 723 (1975) ...... 49
Firestone v. Galbreath,
747 F.Supp. 1556
(S.D. Ohio 1990) ........,. «62
Hartz v. Friedman,
919 F.2d 469
(fem Cars 2900) 2.9. kk CR
H.J. Inc. v. Northwestern Bell Telephone
—O.,
———a
492 U.S. 229 (1989) .... . 58-63
Hoffman Estates Vv. Flipside Hoffman
Estates,
455 U.S. 489 (1982) ...... 59
Kolender v. Lawson,
461 U.S. 352 (1983) “i a ae ee ae 53
Rubin v. United States,
449 U.S. 424 (1981) a oe ee eee ee 49
Sedima, S.P.R.L. v. Imrex Co. ,
473 U.S. 479 (1985) ... 57,60,62
U.S. Textiles, Inc. v. Anheuser-Busch
Companies,
911 F.2d 1261 (7th Cir. 1990) - 61
“¥ vii
Table of Authorities cont.
Cases Page
United States v. Arruda,
720 F.26 G67i (ist Cir. 1983) .. 37
United States v. Bagaric,
706 F.2d 42 (2d Cir.),
cert. denied,
464 U.S. 840 (19872) ° bo, al paaseee
25-26 ,50,52
United States v. Bertman,
686 F.2d 772
foe Bie. WORN 2 kk kK Se CS
United States v. Brown,
505 F.2d 261
(6th Cie. 2074) 2. «. « s « « » 37,595
United States v. Cevone,
452 F.2d 274
Cpe Cie... B07) «ios bw wee OS
United States v. Conway,
507 F.2d 1047
(Sth Cis. 1978) 2-4 ss + SoS
United States v. Coonan,
938 F.2d 1553 (2d Cir. 1991),
cert. denied, 117 L.Ed.2d 628
+i. rear ee
United States v. D'Amato,
436 F.2d 52
(hh Gi. 3970 oe oe ee
viii
Table of Authorities cont.
Cases Page
United States v. Dansker,
737 ¥.20 40 (34 Cir. 1976),
cert. denied, 429 U.S. 1038
2) es re: ey oe
United States v. Davis,
576 F.2d 1065 (3d Cir.)
cert. denied, 439 U.S. 836
Ei a ee, «|
United States v. DeLuna,
763 F.2d 897 (8th Cir.),
cert. denied, 474 U.S. 980
CO er ae a |
United States v. Eisen,
974 F.2d 246 (2d Cir. 1992) aesse
United States v. Forsythe,
560 F.2d 1127
(3@ Cir. 1977) . ... 24=29,32,34,
39,41,44,54
United States v. Friedman,
854 F.2d 535 (2d Cir. 1988),
cert. denied, 490 U.S. 1004
[ame ws es 6 se ee 6s 58523, 24,55
United States v. Frumento,
563 F.2d 1083
(3d Cir.1977) ect « » £0,423, 24,50
United States v. Garner,
837 F.2d 1404
[Fem Gees SOeee we we tw ee C8
ix
Table of Authorities cont.
Cases Page
United States v. Goldfarb,
643 F.2d 422 (6th Cir.),
cert. denied 454 U.S. 827
[ens cs Sek se be xe eee
United States v. Hathaway,
534 F.2d 386 (lst Cir.),
cert. denied, 429 U.S. 819
} IR Se ee ene
United States v. Hiatt,
527 F.2d 1048
‘ha a Pee os) a ee >
United States v. James,
478 U.S. 597 (1986) ...... 49
United States v. Jones,
909 F.2d 533 (D.C. Cir. 1990) 36,37
United States v. Kahn,
472 F.2d 272 (2d Cir.),
cert. denied, 464 U.S. 825
a) 7 Ee ee oe |
United States v. Licavoli,
725 F.2d 1040
(6th Cir. 1964) .... . 42,52,54
United States v. Malatesta,
583 F.2d 748
te | nc ee
Table of Authorities cont.
Cases
United States v. Nardello,
393 U.S. 286
Page
(apeer «© & «© & 13,16,18,20-21,23,
29-32,34,36-42,45
United States v. Paone,
782 F.2d 386 (aq Cir. 1986),
cert. denied, 479 U.S. 882
[aUwee 6 es ee ee 12-13, 24=-25,55
United States v. Prince,
515 F.2d 564 (Stu Cir.),
cert. denied, 423 U.S. 1032
(1975) . yer ee
35
United States Vv. Private Sanitation
Industry Association,
793 F.Supp. 1114
(E.D.N.Y. 1992)
United States v. Pungitore,
910 F.2d 1084
(3d Cir. 1990)
United States v. Revel,
493 F.2d 1 (5th Cir. 1974)
cert. denied, 421 U.S. 909
(1975)
United States v. Rizzo,
418 F.2d 71 (7th Cir. 1969),
cert. denied, 397 U.S. 967
(1970)
United States v. Ruggiero,
726 F.2d 913 (2d Cir.),
cert. denied, 469 U.S. 83]
(1984) hee }
6]
54
a>
50
xi
Table of Authorities cont.
Cases Page
United States v. Russotti,
717 F.2d 27 (2d Cir.),
cert. denied, 465 U.S. 1022
i eS
United States v. Salinas,
564 F.2d 688 (5th Cir. 1977),
cert. denied, 435 U.S. 951
a . orf
United States v. Thomas,
887 F.2d 1341
a rf
United States v. Wai Ho Tsang,
632 F.Supp. 1336
ee Bee ee eae |
United States v. Walsh,
700 F.2d 846 (2d Cir.),
cert. denied, 464 U.S. 825
fo ARES. [ae Pe
United States v. Watchmaker,
761 F.2d 1459, 1469
[50k Cie, 2900t of ko Sc: | SS
Constitutional Provisions
Wee. CONBG., AMONG. Vises © oe nevevueae sed
Nek. CONST. AaFrt. il, § 6 “or oe 11
xii
Table of Authorities cont.
Statutes Page
ON ea ae:
SS ee
ee a ee
oe a Be ne?
Ore BOO.68(2) 2. 6. ww ss we ewe cee 1
Ee a
eS a rT
Oe SemeG. § 2959(a)(2) . . . sw sw ce 8
ae eC. § 1952fb) . 2s i se tw ew
18 U.S.C. § 1961(1)(A) . 12,14-17,20,22,
28,40,46, 48-50
26 U.S.C. § 1961(5) . .......2.. 57
ae W.8.C. § 2962fc) . ..... 2.2.2 3
Be Memes © 20GE(A) . 1 2... ww ce
U.
SS
Federal Rules
Fed.R.App.Pro. 9(b) ........4..58
Pememememuneo. 42 ...5 8 ww ww a ee 8
xiii
Table of Authorities cont.
Statutes Page
Leqislative History
Organized Crime Control Act,
H.R. No. 91-1549, reprinted
am ae70 U.8.C.C.A.8. 4007, 4032 .. 27,28
Miscellaneous
Modern Federal Jury Instructions,
Sand, Siffert, Longhlin and Reiss,
Volume 2, pp. 60-29 through 60-33 . 30-32
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992
MORRIS J. EISEN,
Petitioner,
- against -
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
Morris J. Eisen respectfully requests
that a Writ of Certiorari issue to review
the judgment of the United States Court of
Appeals for the Second Circuit entered on
August 17, 1992, as well as the Order of
the Court of Appeals for the Second
Circuit denying his Petition for a
Rehearing with the Suggestion For
Rehearing En Banc, entered on October 20,
1992.
Opinions Below
The opinion of the United States
Court of Appeals for the Second Circuit,
United States v. Eisen, 974 F.2d 246 (2d
Cir. 1992), Dkt. No. 91-1549(L) (August
17, 1992), is annexed in the Appendix
hereto at la-45a. The order of the Second
Circuit Court of Appeals denying a
Petition For A Rehearing Containing A
Suggestion For Rehearing En Banc appears
in the Appendix at 46a.
Statement of Jurisdiction
The judgment of the United States
Court of Appeals for the Second Circuit,
affirming Petitioner's conviction, was
entered on August 17, 1992. On October
20, 1992, the Court of Appeals denied a
Petition for Rehearing Containing A
Suggestion for Rehearing En Banc. The
jurisdiction of the Court is invoked
pursuant to 28 U.S.C. § 1254(1).
Constitutional Provision
The Fifth Amendment to the United
States Constituticn provides:
"NO person’ shall be —
deprived of life, liberty, or
property, without due process of
Bw 2s se o®
Statement of the Case
Morris J. Eisen and seven others were
indicted and charged, in the United States
District Court for the Eastern District of
New York, with a substantive RICO count,
18 U.S.C. § 1962(c) (Count I) and RICO
conspiracy in violation of 18 U.S.C.
§ 1962(d) (Count ITI). The Petitioner
Eisen was charged with the commission of
six predicate acts alleging either mail
fraud or state law bribery or both. One
of the six predicates was dismissed prior
to the submission of the case to the petit
jury. Petitioner Eisen was ultimately
found guilty of committing three of the
Six racketeering acts which he was
Originally charged with and as a result,
was convicted under Count I and II of the
indictment.
In September 1991 the Petitioner was
sentenced, under the Sentencing
Guidelines, to concurrent terms of 57
months imprisonment and two years
Supervised release on each count; a fine
of $100,000 and a special assessment of
$100 were imposed. He was ordered to
forfeit $500,000 and to make restitution
in the amount of $17,100.
On September 19, 1991, Petitioner
filed a Notice of Appeal to the United
States Court of Appeals for the Second
Circuit. On August 17, 1992, the Court of
Appeals affirmed his conviction. On
October 20, 1992, the Court of Appeals
denied his Petition for Rehearing with a
Suggestion for Rehearing En Banc.
——
On October 27, 1992, Petitioner Eisen
moved before the United States Court of
Appeals for the Second Circuit, pursuant
to Rules 41 ana 9(b) of the Federal Rules
Of Appellate Procedure, for an order
Staying the issuance of the mandate
pending determination of defendant's
Petition for a Writ of Certiorari and for
bail. By order dated October 30, 1992 the
Court of Appeals for the Second Circuit
granted Petitioner's application,
admitting him to bail and staying the
issuance of the mandate pending
determination of its Petition for a Writ
of Certiorari. The order of October 30,
1992 appears in the Appendix at p. 47a.
Statement of Facts
The Petitioner Morris J. Eisen
established Morris J. Eisen, P.C., a New
York City law firm which specialized in
the representation of plaintiffs in tort
litigation. Morris J. Eisen, P.C., was a
large firm which, over its 35-year
history, handled literally thousands of
cases. The firm was lead counsel in many
major product liability cases including
landmark cases such as the Great Adventure
and MGM fire litigations, and the Achille
Lauro suits. The firm employed numerous
attorneys and had a large support staff.
The Petitioner Eisen did not personally
handle all aspects of the firm's
Operations; a great deal of the
responsibility was handled by others. His
principal function at the firm was
negotiating settlements with adversaries
and appearing in court for settlement
conferences,
Much of the Eisen firm Operated with
relative autonomy. Indeed, at the trial
below, District Court Judge Charles Sifton
offered his conclusion that "this is not a
group of attorneys who all met together
and decided on common ways of doing
business or practice..." He further
observed, "as this jury is learning about
this law firm, it has, it seems to me,
come to appreciate, as I have, that it was
not a monolithic whole." Such activities
as Signing up cases, pretrial
investigative work, trial preparation,
litigation Strategy, preparation of
witnesses and actual trials were handled
by a variety of lawyers, investigators and
support personnel. Various trial lawyers
were associated with the firm, some as
employees but many others as what might
best be described as independent
contractors. Trial lawyers often brought
in their own cases, selected their own
investigators and frequently had a greater
financial stake in the outcome of the case
than did the Eisen firm.
Although other witnesses testified
about misconduct charged as predicate acts
against other co-defendants, only a small
portion of the evidence purported to link
the defendant Eisen personally to any
improprieties. The government’ case
against him hung on the uncorroborated
testimony of three individuals -- William
Stanton, Steven DiJoseph and Frank Layne
-- all self-confessed "accomplices" who
had demonstrated a willingness to lie
|
under oath and a history of having done
SO. Despite immunity grants, each of them
also had considerable incentive to lie in
order to implicate Eisen at his trial and
to curry favor with the government. h §
was their word, and their word alone,
which was the basis for establishing
Eisen's alleged involvement.
After a five month trial, the jury
found Petitioner guilty of misconduct in
connection with only three cases handled
by the firn.
During the trial below counsel for
the Petitioner had urged the District
Court, with respect to the RICO predicate
acts which depended upon alleged
violations of the New York State Penal
Law, that the government be required to
corroborate the testimony of accomplice
10
witnesses utilized to prove these
allegations.’
The District Court was asked to
charge the petit jury that they had to
find that the testimony of accomplice
witnesses had been corroborated with
regard to the state predicates relied
upon. The lower court refused to give
that instruction or to otherwise require
the government to corroborate the
testimony of any accomplice witnesses with
regard to the state predicates. It was
argued before the District Court and
subsequently on appeal that, under New
York law, a crime is not "chargeable"
‘The defendant was charged in the
federal RICO indictment with violating,
inter alia, Sections 215.00(a) and 20.00
of the New York Penal Law, which prohibit
bribery under New York state law.
unless the testimony of any accomplice
witnesses has been corroborated. ?
‘Under the provisions of New York law
one can only be prosecuted for a crime
which carries a potential sentence in
excess of a year imprisonment by grand
jury indictment. N.Y¥.Const. art. 1, § 6;
N.Y. CPL § 200.10. Under New York law, an
indictment Charging an individual with a
felony must be based upon legally
sufficient evidence, CPL 190.65(1),
further, "(n]o conviction of an offense by
verdict is valid unless based upon trial
evidence which is legally sufficient."
N.Y. CPL § 70.20. Section 70.10 of the
New York Criminal Procedure Law defines
what shall constitute legally sufficient
evidence to justify a grand jury with
charging an individual with a felony under
New York law. Section 60.22 of the CPL
provides that: "A defendant may not be
convicted of any offense upon the
testimony of an accomplice unsupported by
corroborative evidence tending to connect
the defendant with the commission of such
offense." Unless the proof before the
grand jury meets the requirements, inter
alia, of Section 70.10 of the Criminal
Procedure Law, a person cannot be indicted
Or charged. Section 70.10 of the CPI,
provides that’ the legally sufficient
evidence to justify a charge comprises:
"(C]ompetent evidence which, if accepted
as true, would establish every element of
an offense charged and the defendant's
commission thereof; except that such
evidence is not legally sufficient when
corroboration required by law is absent"
(emphasis added) .
12
Under New York State Law one cannot
be charged and/or convicted of an offense
carrying a penalty of imprisonment in
excess of a period of one year unless any
testimony given by an accomplice is
"legaliy corroborated."
The District Court and the Court of
Appeals for the Second Circuit rejected
the defendant's contention that 18 U.S.C.
§ 1961(1)(A) required that the conduct at
issue literally be "chargeable" under
3 In the Petition for
state law.
Rehearing, with Suggestion for Rehearing
En Banc, submitted on behalf of the
defendant Eisen, the Court was
3Although this issue was specifically
raised before the United States Court of
Appeals for the Second Circuit, the Court
did not address the argument in its
written opinion. Since this issue had
been raised in two cases previously, the
Court of Appeals undoubtedly considered
that the matter had been settled within
the law of the Circuit. See Paone, 782
F.2d at 393; Friedman, 854 F.2d at 565-66.
ee |
13
Specifically asked to consider its prior
decisions in United States Vv. Paone, 782
F.2d 386, 393 (2d Cir. 1986), cert.
denied, 479 U.S. 882 (1987), and United
States v. Friedman, 854 F.2a 535, 565-66
(2a Cir. 1988), cert. denied, 490 U.S.
1004 (1989), against the background of
what appeared to be an inexplicable
divergence in the law of the Second
Circuit on the construction and
application of the holding by this Court
in United States v. Nardello, 393 U.S. 286
(1969). The Petition for Rehearing was
denied without opinion.
14
REASONS FOR GRANTING THE WRIT
I.
THE SECOND CIRCUIT COURT OF
APPEALS -- AND VARIOUS OTHER
CIRCUIT COURTS OF APPEALS --
HAVE APPLIED THE RICO STATUTE IN
A MANNER WHICH CONFLICTS WITH
THE DECISION OF THIS COURT IN
UNITED STATES Vv. NARDELLO.
MOREOVER, A SPLIT IN THE
CIRCUITS EXISTS AS TO WHETHER OR
NOT UNITED STATES v. NARDELLO
PERMITS THE "NON-INCORPORATION"
OF THE ELEMENTS OF STATE OF-
FENSES WHICH SERVE AS PREDICATES
FOR FEDERAL PROSECUTIONS UNDER
THE TRAVEL ACT AND/OR RICO.
The Second Circuit, and several other’
Courts of Appeals, have ruled that the
statutory phrase contained in 18 U.S.C.
§ 1961(1) (A), that state offenses must be
"Chargeable under state law," does not
require the "incorporation" of the
elements of state offenses within federal
RICO prosecutions, nor does it require
consideration of any relevant’~ state
defenses. The Second Circuit described
its view of the requirements of this
15
section of the RICO statute in United
States vy. Bagaric, 706 F.2q 42, 63 (2d
Cir.), cert. denied, 464 U.S. 840 (1983).
As the Court held; "Section 1961 requires,
in our view, Only that the conduct on
which the federal Charge is based
|p
typical of the serious crime dealt with
the state Statute, not that the Particular
defendant be ‘chargeable under state
law'." (quoting United States vy. Frumento,
563 F.2d 1083, 1087 n.8A (3d Cir. 1977)
(emphasis added).
The instant Petition raises the
question of what proof the government must
establish in a criminal RICO prosecution
which depends, in whole or in part, upon
State offenses as predicates for the
“pattern of racketeering activity." More
Specifically, when state predicates are
utilized to Satisfy the element of a
pattern of racketeering activity, i
——————————————
16
presents the issue of whether’ the
government is required, by virtue of the
statutory language of RICO (to wit,
§ 1961[1][A]), to prove all of the
underlying elements of such state
offense(s) and/or meet any applicable
state defenses.
This Petition will further
demonstrate that as the result of an
anomaly in the law of the Second Circuit,
as well as other Circuit Courts of
Appeals, as to the application of the
holding by this Court in United States v.
Nardello, 393 U.S. 286, 289-95 (1969),
Section 1961 of RICO is’ continually
misapplied. Certiorari should be granted
so this Court can provide the necessary
guidance to the lower federal courts as to
how the provision of the RICO statute set
forth at 18 U.S.C. § 1961(1)(A) is to be
construed and applied.
17
To frame the issue in its proper
context, Section 1961(1) (A) requires that
in order for a state crime to qualify as a
"racketeering act," it must be:
[A]ny 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 (emphasis added).
As the result of Bagaric and similar
holdings by other Circuit Courts of
Appeals, it has now been established that
it is entirely unnecessary for a federal
prosecutor, in a RICO case depending upon
state predicates, to establish all or any
of the elements of the particular state
offense(s) alleged or to meet any
recognized state defenses to such charges.
In support of these holdings, the Second
Circuit and others have taken the position
that this Court's decision in United
18
States v. Nardello, 393 U.S. 286 (1969),
compels the conclusion that state offenses
are not "incorporated" into the RICO
statute as a result of the statutory
language which appears at 18 U.S.C.
§ 1961(1)(A). As it will be demonstrated
below, not only does this Court's holding
in Nardello fail to support such
conclusions, but the law of the very
Circuits in which such holdings have been
pronounced contradict their own findings.
With the exception of two Circuit
Courts of Appeals (the Fifth and the
Seventh), every Circuit to reach the issue
of whether Nardello can be read to permit
so-called "non-incorporation" of the
elements of underlying state offenses in
Travel Act cases, has ruled that it can
not. Nevertheless, these same Courts, in
their construction of Section 1961 of
RICO, have inexplicably adopted a
ee ry
19
diametrically opposite position as to what
the holding of Nardello stands for.
Irreconcilably, when discussing’ RICO,
these same Courts’ contend that the
decision in Nardello can be read to permit
"non-incorporation." And as a result,
only proof of "generic" conduct, not proof
of the elements of the underlying state
offense, is therefore necessary to satisfy
Section 1961.
This distinction in the
interpretation of Nardello reached by
Bagaric and other courts cannot
conceivably flow from any of the
differences which may exist between the
Statutory language of the Travel Act and
that of RICO. The relevant language of
the Travel Act, construed by this Court in
Nardello, appears in 18 v.8.€:
§ 1952(a) (2); to wit, "Whoever travels in
interstate Roh pat commerce . “8 to
ES ———————
20
further any unlawful activity" (emphasis
added). The statute defines "unlawful
activity" as, inter alia, “offenses in
violation of the laws of the State in
which they are committed." Conversely, 18
U.S.C. § 1961(1)(A) expressly requires
that under RICO the conduct must _ be
"Chargeable" under state law."
In light of the far more explicit
language of Section 1961, axiomatically,
no logical justification can be advanced
to support the concept that Nardello
should require something less for RICO.
Moreover, it is particularly interesting
to note that no Court that has ever even
made the contention that the difference in
the application of the holding in Nardello
is based upon any consequential difference
between the language of the Travel Act and
RICO. Nor has any other rationale ever
been proffered, by any circuit, as to why
ee
21
there would be any justification to
interpret Nardello differently when
assessing RICO rather than the Travel Act.
As will be demonstrated herein, the
explanation for the difference in the
treatment of state predicates in Travel
Act cases versus RICO cases evolves from
an underlying faulty premise, repeated
inexplicably in an entire line of cases,
concerning the interpretation and effect
of Nardello.
The Second Circuit first construed
the statutory language of 18 U.S.C.
§ 1961(1) (A) in its decision in United
States v. Bagaric, 706 F.2d 42, 62-63 (2d
Cir. 1983). In Bagaric the Court was
faced with a claim that a RICO conviction
Should be reversed because the trial court
had failed to charge the petit jury on the
specific elements of the state offenses
which were utilized as the various RICO
22
predicates. Id. at 62. The Bagaric
Court, however, rejected that argument and
held that. the reference to offenses
"Chargeable under state law" in the RICO
statute referred only to generic
cateqories of conduct and did not intend
the incorporation by reference of the
elements of any state criminal statute in
a RICO prosecution. Id.
The reasoning in Bagaric, which has
been carried forward in all of the cases
which have followed in the Second
Circuit,’ is predicated upon two premises.
First, the Court asserted that the
legislative history of RICO compelled the
conclusion that Congress, in passing
§ 1961(1)(A), only intended to refer to
"generic" categories of criminal conduct.
The second premise of Bagaric was the
conclusion that this Court's decision in
“see infra note 7.
ee |
cline iia
23
Nardello did not stand for the proposition
that the elements of the underlying state
offense had to be proven in a Travel Act
prosecution. In fact, the Bagaric Court
asserted that Nardello required the
conclusion that Section 1961 was intended
to refer only to conduct "typical of the
serious crime dealt with by the state
statute, not that the particular defendant
be ‘chargeable under state law.'"
Bagaric, 706 F.2d at 63 (quoting United
States v. Frumento, 563 F.2d 1083, 1087
n.8A [3d Cir. 1977]). It is respectfully
asserted that the conclusions reached in
Bagaric cannot be Supported by either, or
both, of the premises upon which the
decision is based. Moreover, its
"interpretation" of the purported holding
Of Nardello was inapposite to the prior
Opinions of the Second Circuit construing
Nardello.
————————
24
The reasons recited by the Second
Circuit in Bagaric were quite obviously
based upon several prior decisions of
other courts.? An analysis of stare
decisis points ultimately to the decision
by the Third Circuit in United States v.
Forsythe, 560 F.2d 1127, 1136 (3d Cir.
1977), as being the primogenitor of this
line of reasoning. The Second Circuit's
holding in Bagaric,® and all of its
7
subsequent decisions on this issue’ have
"See United States v. Salinas, 564
F.2d 688, 690-91 (5th Cir. 1977), cert.
denied, 435 U.S. 951 (1978); United States
Vv. Frumento, 563 F.2d 1083, 1087 n.8A (3d
Cir. 1977).
‘Although Bagaric does not cite
Forsythe, it does cite Salinas, which
relies upon Forsythe. Bagaric, 706 F.2d
at 63.
‘United States v. Coonan, 938 F.2d
1553, 1564 (2d Cir. 1991), cert. denied,
117 L.Ed.2d 628 (1992); United States v.
Friedman, 854 F.2d 535, 565-66 (2d Cir.
1988), cert. denied, 490 U.S. 1004 (1989);
United States v. Paone, 782 F.2d 386, 393-
94 (2d Cir.), cert. denied, 479 U.S. 882
(continued...)
a
25
followed lockstep with the opinion of the
Third Circuit in Forsythe. In Forsythe
the Court held that:
[tjhe legislative history of 18
U.S.C. § 1961(1) (A) specifically
States that 'State offenses are
"(...continued)
(1986); United States v. Bagaric, 706 F.2d
42, 62-63 (2d Cir.), cert. Genied, 464
U.S. 840 (1983). The only additional
reason that the Second Circuit has ever
offered in support of its generic conduct
interpretation, is that to require proof
of each element of some specific state
offense would create disparity in the
application of RICO. As the Court
observed in Paone, 782 F.2d at 393, "To
adopt appellant's reading of 'chargeable'
would result in precisely the same
Criminal act, proscribed by the laws of
two states, being the basis of a RICO
violation in one state but not in the
OGnee « «4 + *
While the Court in Paone was quite
right, the disparity is inherent in RICO.
Axiomatically, given the nature of the
state offenses which qualify as predicates
-- and probably the best example is
gambling -- there will necessarily be
enormous disparity between the states in
what gambling conduct each different state
finds sufficiently serious to warrant a
sentence in excess of one year's
imprisonment. Disparity with respect to
the application of RICO, when utilizing
State predicates, is inevitable.
26
included by generic
designation.' This statement
manifests the legislative intent
to incorporate the Supreme
Court's holding in United States
v. Nardello .. . into the RICO
statute. Nardello stands _ for
the proposition that alleging a
state violation which falls
within the generic category of a
predicate offense is adequate to
charge a violation of the Travel
Act. The test for determining
whether the charged acts fit
into the generic category of the
predicate offense is whether the
indictment charges a type of
activity generally known or
characterized in the proscribed
category, namely, any act or
threat involving bribery.
Forsythe, 560 F.2d at 1137 (footnotes
omitted) (emphasis added). A examination
of the reasoning underlying the dual
premises underpinning the decision in
Forsythe (and adopted almost in haec verba
in Bagaric) reveal the reasoning to be
fatally flawed.
Forsythe's first premise, that "the
legislative history" of RICO compels the
conclusion that only generic conduct must
27
be shown, is unsupportable. The
"legislative history" relied upon by the
Third Circuit in Forsythe is nothing more
than a single snippet that appears in
House Report 91-1549. This Report was
written as a summary of the various
provisions of the newly enacted RICO Act.
In passing, the House Report states:
Section 1961 contains
definitions. Subsection (1)
defines "racketeering activity"
to include murder, kidnapping
ee State offenses are
included by generic designation.
Federal offenses are included by
specific reference.’
®organized Crime Control Act, H.R. No.
91-1549, reprinted in 1970 U.S.C.C.A.N.
4007, 4032.
"Id. at 4032 (emphasis added). The
sentence in the House Report relied upon
by the Forsythe Court is, perforce,
nothing more than a convenient way of
Summarizing the methodology behind the
construction of Section 1961(1) (A).
Obviously, it was impossible for the
Congress to expressly incorporate each
specific state criminal statute into RICO.
While specific statutory reference to
federal offenses could be undertaken with
(continued...)
28
9(...continued)
relative ease, to list every’ single
conceivable state offense would have been
unworkable. This does not mean, however,
as the Forsythe Court erroneously
concludes, that Congress did not intend
the words "chargeable under state law" to
have anything other than their ordinary
usage and meaning.
It is of particular interest to note
that in the same House Report --
complimenting this snippet of "legislative
history" pointed out in Forsythe -- there
is a corresponding statement that can well
be said to describe more specifically the
Congressional intent with respect the role
state offense would play in RICO. At page
4010 the Report explains: "'Racketeering
activity' is defined in terms of specific
State and Federal criminal statutes. 1970
U.S.C.C.A.N. 4007, 4010 (emphasis added).
While these two statements of "legislative
history" can be reconciled, they can be
reconciled only in one direction. That is
to say, if Congress intended the provision
“chargeable under state law" to refer to
"specific state criminal statutes" then
the later statement in the Report that
these statutes have been incorporated by
making reference to their "generic
designation" is not inconsistent. Indeed,
how else could they be "designated," other
than to set forth each specific state
statute. However, the equation will not
solve in reverse. If one begins with the
premise that it was only "generic
categories of activity" which Congress
intended to refer to in § 1961(1) (A), then
(continued...)
a
29
The Forsythe Court concluded that the
presence of this Single sentence
"manifest[{ed] the legislative intent to
incorporate the Supreme Court's holding in
United States v. Nardello - »« »- into the
RICO statute." Forsythe, 560 F.2d at 1137
(citation omitted). Whether or not that
is so is ultimately of little moment. The
problem is not whether the legislature had
Nardello in mind when the House Report was
written, but the fact that Forsythe
misconstrued and _ then misapplied the
holding of Nardello.
Nardello does not stand for the
proposition, as the Forsythe Court
erroneously stated, that the elements of
any state predicates relied upon were not
incorporated in the Travel Act. What
Nardello actually stands for is that the
°(...continued)
the prior reference to "specific state
Criminal statutes" makes no sense.
30
title of the particular state statute does
not control but rather the nature of the
conduct forbidden by the applicable state
statute. The language of this Court's
holding in Nardello which gives rise to
this issue of construction was’- the
statement by Chief Justice Warren that:
[T]he inquiry is not the manner
in which the States classify
their criminal prohibitions but
whether the particular State
involved prohibits the
extortionate activity charged.
United States v. Nardello, 393 U.S. 286,
295 (1969).
The proper interpretation and effect
of this statement in the Nardello decision
was explained by District Court Judge
Leonard Sand in his treatise on federal
10
jury instructions. Discussing the
requirements of proof under the Travel Act
Modern Federal Jury Instructions,
Sand, Siffert, Longhlin and Reiss, Volume
2, pp. 60-29 through 60-33.
Eero |
xp |
in light of the holding of Nardello, Judge
Sand explains:
Nardello does not justify the
conclusion, drawn by the non-
incorporation circuits, that the
state crime is not incorporated
as an element of the Travel Act
offense. Nardello holds that
the label a state puts on an
offense is not the dispositive
factor in determining whether
the offense will support a
Travel Act prosecution. What is
important is that some state law
proscribe the underlying
activity listed in section
1952(b). Thus, far from being
unimportant, the substance of
the state law is central to a
Travel Act prosecution premised
on a violation of state law.
The label used by the state may
not matter, but the substance of
the statute certainly does.
* * *
[Tjhe jury must be instructed on
the elements of the state law
violation ... and decide
whether the law has been
violated. . . . [T]he defendant
must be permitted to raise valid
Substantive defenses to the
state violation."
"Id. at 60-30, 60-32-33. Instruction
60-10 of Judge Sand's Model Charge on the
(continued...)
32
Why the panel in Forsythe reached its
"non-incorporation" construction of
Nardello is all the more inexplicable
given the state of the law in the Third
Circuit at the time. The interpretation
of "Nardello," which had theretofore
consistently been applied by the Third
Circuit, should have been well-known to
the panel in Forsythe. Indeed, in 1970,
some seven years before Forsythe was
decided, the Third Circuit in United
N(.. continued)
Travel Act provides: "The defendant has
been charged with traveling in interstate
commerce (or using an interstate facility)
to facilitate [describe the unlawful
activity charged in the indictment]. The
government must prove to you beyond a
reasonable doubt that the activities the
defendant intended to facilitate were, in
fact, unlawful under [name the state law
where the indictment charges were being
violated, e.g., Florida's gambling law].
In order to prove this, the government
must prove, beyond a reasonable doubt,
each of the following elements of the
offense of [name applicable state offense,
e.g., gambling] under [name of state,
e.g., Florida] law: [List elements of
state law offense]." Id. at 60-29.
—————————————
33
States v. D'Amato, 436 F.2d 52, 54 (3d
Cir. 1970), citing Nardello, specifically
held that in a federal Travel Act
prosecution in which state predicates were
utilized, every element of the _ state
offense had to be established and any
viable state defenses had to be met. In
fact, the issue on appeal in D'Amato was
an assertion by the appellant that he was
denied "due process of law by depriving
him of certain defenses cognizable only in
state courts." D'Amato, 436 F.2d at 54.
As the Court noted, "If appellant had a
defense or an element of a defense which
is grounded on Pennsylvania law, he
properly could have raised it and have had
it considered by the district court even
though it required an interpretation of
Pennsylvania law." D'Amato, 436 F.2d at
55; accord United States v. Dansker, 537
34
F.2d 40, 47 (3d Cir. 1976), cert. denied,
429 U.S. 1038 (1977).
Nevertheless, for reasons never
explained, the panel in Forsythe, rather
than turning to the stare decisis of their
own Circuit, turned instead to the
decision by the Fifth Circuit in United
States v. Revel, 493 F.2d 1, 2-3 (5th Cir.
1974), cert. denied, 421 U.S. 909 (1975).
Revel is the Travel Act case from which
Forsythe extrapolates its conclusion that
the Supreme Court holding in Nardello
stands for the proposition that if the
acts alleged fall within some "generic
category" of conduct, typically punishable
under state law, then it is sufficient,
notwithstanding that none of the elements
of any specific state statute have been
proven or even charged.
Of course, the problem with the Third
Circuit's reliance on the Fifth Circuit's
decision in Revel was that the Fifth
Circuit and the Seven Circuit are the only
two who have rejected the incorporation
view of the Travel Act."
Why the Third Circuit in Forsythe
relied upon the Fifth Circuit's reasoning
in Revel rather than its own clearly
established precedent will undoubtedly
remain unanswered. Nevertheless, it may
very well be that it is precisely at this
point in the development of the
interpretation and construction of the
RICO statutory phrase, “chargeable under
state law," that the critical flaw in the
underpinning of the entire line of
reasoning occurred.
see United States v. Prince, 515
F.2d 564, 566 (5th Cir.), cert. denied,
423 U.S. 1032 (1975); United States v.
Conway, 507 F.2d 1047, 1051 (Sth Cir.
1975); United States v. Rizzo, 418 F.2d
71, 74 (7th Cir. 1969), cert. denied, 397
U.S. 967 (1970).
EL ——
36
A "non-incorporation" view of
Nardello is a decidedly minority view.
The District of Columbia Circuit recently
had the occasion to conduct an overview of
the law of the various Circuits concerning
this precise issue; to wit, whether
Nardello could be read to permit a federal
prosecution under the Travel Act -- based
on state predicates -- without proof of
all elements of the underlying state
offense(s). The Court in United States v.
Jones, 909 F.2d 533, 536-37 (D.C. Cir.
1990), pointed out that virtually all of
the Circuits which have considered the
impact of Nardello on "incorporation" vis-
a-vis "non-incorporation," have concluded
that Nardello cannot be read to permit
non-incorporation. As the Jones Court
held, “we adopt the position, now held by
most of the circuits, that the prosecution
must show that the activity was unlawful
37
under a specific state law." Jones, 909
3rhe Court in United States v. Jones
reviewed the positions of all of the
Circuits on this issue: "(wjhere the
Government would prove a violation of the
Travel Act .. . we adopt the position,
now held by most of the circuits, that the
prosecution must show that the activity
was unlawful under a specific state law.
See United States v. DeLuna, 763 F.2d 897,
907 (8th Cir.), cert. denied, 474 U.S. 980
(1985); United States v. Bertman, 686 F.2d
772, 774 (9th Cir. 1982); United States v.
Goldfarb, 643 F.2d 422, 430 (6th Cir.),
cert. denied 454 U.S. 827 (1981); United
States v. Dansker, 537 F.2d 40, 47 (3d
Cir. 1976), cert. denied, 429 U.S. 1038
(1977); United States v. Brown, 505 F.2d
261, 262 (4th Cir. 1974); United States v.
Kahn, 472 F.2d 272, 277 (2d Cir.), cert.
denied, 464 U.S. 825 (1973). See also
United States v. Arruda, 715 F.2d 671, 681
(lst Cir. 1983); United States v. Walsh,
700 F.2d 846, 854-55 (2d Cir.), GOrki.
denied, 464 U.S. 825 (1983); United States
v. Hathaway, 534 F.2d 386, 398 (1st Care) «
cert. denied, 429 U.S. 819 (1976). we
believe that this approach is compelled by
the plain language of § 1952(b), which
defines ‘unlawful aactivity' as any
business enterprise involving [inter alia]
prostitution offenses in violation of the
laws of the State in which they are
committed or of the United States."
"This approach is fully consistent
with United States v. Nardello, 393 U.S.
2862, 89 S.Ct. 534, 21 L.Ed. 2d 487
(1969)." Jones, 909 F.2d at 536-37
(emphasis added).
38
F.2d at 537. The Court noted:
[Tjhe Fifth Circuit has taken
the position that the elements
of the state law prohibiting the
activity are not incorporated
into and made elements of the
Travel Act offense ‘
[t]aking Nardello to mean that
it is sufficient if the acts
charged in the indictment fall
within the 'generic' meaning of
the predicate offense, the
[Fifth Circuit] concluded that
‘in § 1952 cases state law
merely serves a definitional
purpose. '
* * *
We believe that the Fifth
Circuit's reading of Nardello
confuses the Supreme Court's
holding -- that the label under
which a listed offense is
proscribed in state law is
irrelevant -- with the distinct
proposition that no violation of
any state statute is required in
order to make out a violation of
the Travel Act. At most,
Nardello establishes that, in
addition to violating state law,
the predicate offenses must fall
within the generic meaning of
the offenses enumerated in
§ 1952(b).
* * *
The Government here ‘agrees that
state laws are incorporated by
39
reference into the federal
Travel Act,' noting only ‘that
the circuits disagree on the
question of whether these laws
are completely incorporated. '
Id. at 537-38. What is perhaps the most
extraordinary revelation which the
analysis of this issue has produted is
that those Circuits which have expressly
held that Nardello is to be read as
requiring "incorporation" of the elements
of the state offense in Travel Act cases
are found to say that Nardello stands for
precisely the opposite proposition when
dealing with RICO cases. 7S ie. .
course, this disparity -- flowing
apparently from a blind allegiance to
Forsythe and its progeny --~ which
Petitioner asks this Court to review by
granting Certiorari. -
The examples of this incongruous
application of the holding in Nardello
abound. In the Second Circuit, in United
40
States v. Wai Ho Tsang, 632 F.Supp. 1336,
1338 (S.D.N.Y. 1986), a RICO defendant
sought to have the District Court consider
whether a particular state defense to his
state predicate conduct under RICO was
applicable. The Court ruled that the
defendant's "motion for dismissal must be
denied since it is premised on state law
defenses .. . not contemplated by the
definition of an act of racketeering in
§ 1961(1)(A)." Wai Ho Tsang, 632 F.Supp.
at 1338.
Nevertheless, in United States v.
Kahn, 472 F.2d 272, 277 (2d Cir. 1973), a
Travel Act case decided well before United
States v. Wai Ho Tsang, the Second Circuit
ruled, on the basis of its reading of
United States v. Nardello, that not only
was the incorporation of all the elements
of a state offense required, but,
moreover, Nardello required the federal
41
prosecution to meet any appropriate state
defenses to the alleged state statutory
violation. As the Court held:
Just as the initial inquiry ina
Travel Act case is whether the
underlying activity violates a
state law, see United States v.
Nardello, 393 U.S. 286, 89 S.Ct.
534, 21 L.Ed.2d 487 (1969), the
assertion of a particular state
law defense in such a case
requires a determination of
whether the relevant state
recognizes the defense.
Kahn, 472 F.2d at 277. Thus, it is clear
that there is an irreconcilable and
unjustifiable disparity between the Second
Circuit's interpretation of what Nardello
stands for when it is considering Travel
Act cases compared to when it is
considering RICO cases.
Of course, the Second Circuit is not
alone in its schizophrenic interpretation
of the holding in United States _ v.
Nardello. As previously noted, the Third
Circuit which spawned Forsythe is, itself,
ee
42
explicitly an “incorporation" Circuit."
Yet the Third Circuit uniformally
misapplies Nardello in the RICO context.
A similar disparity in interpretation and
application exists in several Circuits.”
%aAs the Court noted in United States
v. Dansker, 537 F.2d 40, 47 (3d Cir.
1976), cert. denied, 429 U.S. 1038 (1977);
"Tajt the outset we note that the Travel
Act incorporates into federal law New
Jersey's substantive law of bribery for
this particular case, even though it
contains a more expansive definition of
the crime than that found at common law."
In the Sixth Circuit compare United
States v. Goldfarb, 643 F.2d 422, 426 (6th
Cir.) ("It is abundantly clear that as a
predicate to a Travel Act conviction,
absent a distinct violation of the law of
the United States, the defendants must
have engaged in some form of unlawful
activity prohibited by the law of the
State of Nevada"), cert. denied, 454 U.S.
827 (1981), with United States v.
Licavoli, 725 F.2d 1040, 1047 (6th Cir.
1984), ("(t]he reference to state law in
the [RICO] statute is simply to define the
wrongful conduct. Reference to state law
is necessary only to identify the type of
unlawful activity in which the defendant
intended to engage.") (quoting United
States v. Cevone, 452 F.2d 274, 286 [7th
Cir. 1971}).
(continued...)
Se
43
As discussed in Point II, infra,
settled principles of statutory
construction mandate that the clear
language of a statute must be afforded its
ordinary use and meaning." Section 1961
9(...continued)
A similar disparity is revealed in
the law of the Ninth Circuit. Compare
United States v. Bertman, 686 F.2d 772,
774 (9th Cir. 1982) ("[{T]he government
thus must prove as part of the Travel Act
charge that the defendant has or could
have violated the underlying state law,
and the defendant may assert any relevant
substantive state law defense."); accord
United States v. Hiatt, 527 F.2d 1048,
1051 (9th Cir. 1975); with United States
v. Thomas, 887 F.2d 1341, 1348 (9th Cir.
1989) ("The state law reference in the
federal [RICO] statute simply defines
wrongful conduct, and is not designed to
incorporate state procedural law").
%’opviously, Congress intended RICO to
incorporate by reference "specific state
criminal statutes," not some vague,
"generic" conduct. Otherwise, why would
Congress utilize the statutory phrase,
"Chargeable under State law"? Why refer
to state law at all if some "generic" or
common law or malum prohibitum conduct is
all that is required to be proven?
Moreover, if such a construction were
correct it would create a statutory scheme
with inherent uncertainty. Courts and
(continued...)
44
requires that any state predicate must be
"chargeable under state law" to qualify as
a "racketeering act" under RICO. The
perversion of this clear language, by
Forsythe and it progeny, is unjustified
upon any legal or factual ground. The
premises upon which the interpretation of
this section of RICO have been made are
demonstrably wrong. This Court should
grant the instant Petition for a Writ of
Certiorari to correct what is self-
evidently a seriously flawed construction
of Section 1961 by the various Circuit
Courts of Appeals.
Certiorari is also justified in the
present case so that this Court may
16’. continued)
jurors would be left to determine whether
conduct, although not satisfying all of
the elements of some specific’ state
statute, may nonetheless serve as a
predicate simply because it could be said
to be "generically" similar. See infra
Point II.
45
resolve the split in the Circuits
concerning the underlying issue of the
appropriate interpretation of Nardello as
to Travel Act prosecutions. As previously
demonstrated, the Fifth and Seventh
Circuits do not require the incorporation
of the elements of a state offense in
Travel Act prosecutions, nor do_ such
Circuits require the prosecutor to meet
relevant state defenses to such conduct.
Conversely, the District of Columbia,
First, Second, Third, Fourth, Sixth,
Eighth and Ninth Circuits require
incorporation of all of the elements of
any state offenses relied upon as well as
the requirement that all relevant state
defenses ae eet Thus, Certiorari in the
present case will serve several salutary
purposes.
CC Ee
46
®
IF 18 U.S.C. § 1961(1)(A) DOES
NOT REQUIRE THE GOVERNMENT TO
PLEAD AND PROVE ALL OF THE
ELEMENTS OF STATE OFFENSES
RELIED UPON AS RICO PREDICATES
-- BUT RATHER REQUIRES ONLY THAT
THE CONDUCT ALLEGED "BE TYPICAL
OF THE SERIOUS CRIME DEALT WITH
BY STATE STATUTES" -- THEN IT IS
UNCONSTITUTIONALLY VAGUE. THE
VAGUENESS OF THIS _ SECTION,
COUPLED WITH THE DEMONSTRATED
VAGUENESS OF THE "PATTERN"
REQUIREMENT, RENDERS THE RICO
STATUTE, AS A WHOLE, UNCONSTITU-
TIONALLY VAGUE, BOTH ON ITS FACE
AND AS APPLIED
The first prong of the constitutional
vagueness challenge raised in this Point
deals with the impact that interpretation
which has been given. to Section 1961 by
the lower federal courts has had upon the
constitutionality of RICO. As to this
prong, Petitioner advances two arguments.
First, if the words used by Congress in
§ 1961(1)(A), that the conduct must be
"chargeable under state law," do not carry
their ordinary meaning and usage, then the
47
statute is rendered unconstitutionally
vague. Second, if the broad-reaching
interpretation which has heretofore been
applied to this section by the various
Circuit Courts of Appeals is indeed the
proper construction of Section 1961, then
the statute fails to provide adequate
notice and is thereby unconstitutionally
vague.
The second prong of Petitioner's
constitutional vagueness challenge
concerns the RICO element of "pattern."
This Court, on several prior occasions,
has wrestled with the issue of whether or
not the phrase "pattern of racketeering
activity," is sufficiently definitive to
permit uniform construction and
application. To date, this Court has not
found the term "pattern" to be
unconstitutionally vague. Whether in
light of the mounting empirical proof that
ee
48
this term cannot be uniformally applied
the Court can continue its support of the
statute is one of the issues presented in
this petition.
Finally, the Court is asked to
consider the cumulative effect of the
difficulties which attend the
interpretation and construction of Section
1961(1) (A) in conjunction with the
problems which attend application of the
term "pattern." It is respectfully
asserted that the combined uncertainty
generated by these two central provisions
of RICO render the statute
unconstitutionally vague.
a. The Constitutional Problems Presented
By Section 1961(1) (A).
As the decisions of this Court teach
us, "(t]he starting point in statutory
interpretation is 'the language [of the
|
49
statute] itself.'"'’ It is further the
teaching of this Court that there is a
‘strong presumption' that the plain
language of the statute expresses
congressional intent [which] is rebutted
only in ‘rare and exceptional
circumstances.'"'® The "plain language"
utilized by Congress in 18 U.S.C.
§ 1961(1)(A) is that conduct, to qualify
as a RICO predicate, must be "chargeable
under state law."
Even though there is no legislative
history to justify construction of the
term "chargeable" to mean anything other
than its ordinary meaning, the lower
"ArGegtens + 2 U8. Oe. >.
112 S.Ct. 515, 519 (1991); (quoting United
States _v. James, 478 U.S. 597, 604,
(1986)); see also Blue Chip Stamps v.
Manor Drug Stores, 421 U.S. 723, 756,
(1975).
’ardestani, 112 S.Ct. at 520 (quoting
Rubin v. United States, 449 U.S. 424, 430
[1981]).
a i i ei
50
courts have taken unwarranted liberties
with this statutory phrase. '9 Indeed,
what they have done "is not statutory
interpretation; it is statutory
construction in the pristine fabricating
on a separate and perhaps’ more
fundamental level, it seems entirely
inconsistent to dissect the sentence found
in § 1961(1)(A) by giving half of the
sentence its plain meaning and attributing
to the other half the erroneous
construction established in Forsythe,
Bagaric and their progeny. In this
regard, it is well settled that the phrase
"punishable by imprisonment for more than
one year" means exactly what it says. It
is equally well settled that in making
this determination one must refer
exclusively to the state law implicated in
the RICO predicate. See, e.g., United
States v. Ruggiero, 726 F.2d 913, 920 (2d
Cir.), cert. denied, 469 U.S. 831 (1984).
Yet, on the other hand, the courts have
taken the corresponding portion of this
sentence -- "chargeable under state law"
-- and without any justification have
held, the express language of the statute
notwithstanding, that the statute does not
require that a "particular defendant be
chargeable under the state law." Bagaric,
706 F.2d 42, 63 (1983). State law is said
to control half of the sentence (the
length of imprisonment) but not the other
half ("chargeable"). Axiomatically, such
statutory construction is logically
inconsistent.
|
sense. "°° No greater example of the
unjustified judicial reconstruction of
this phrase can be found than that which
appears in United States v. Frumento, 563
F.2d 1083, 1087 n.8A (3d Cir. 1977).
In Frumento, the Court, without
reference to any authority, makes’ the
extraordinary pronouncement that:
Section 1961 requires, in our
view, only that the conduct on
which the federal charge is
based be typical of the serious
crime dealt with by the state
statute, not that the particular
defendant be ‘chargeable under
state law' at the time of the
federal indictment.
Id. at 1087 n.8A (emphasis added). How
the Court in Frumento can say that the
express language utilized by Congress,
"Chargeable under state law," does not
literally mean what it explicitly says,
united States v. Davis, 576 F.2d
1065, 1069 (3d Cir.) (Aldisert, J.,
concurring), cert. denied, 439 U.S. 836
(1978).
; — ” “
52
without reference to any legislative
history, any prior judicial authority or
recognized principal of statutory
construction, is truly extraordinary.
Nevertheless, this language first utilized
in Frumento has been carried forward by
many Circuit Courts to reach the issue.®'
In raising a challenge to the
constitutionality of a statute which does
not impinge directly on constitutionally
protected conduct, the standard which must
be met is that the statute must be
"impermissibly vague in all of its
applications." See Hoffman Estates v.
Flipside Hoffman Estates, 455 U.S. 489,
495 (1982). Outside the context of the
“Isee Bagaric, 706 F.2d 42, 63 (2d
Cir. 1983); United States v. Salinas, 564
F.2d 688, 692 (5th Cir. 19877); United
States v. Licavoli, 725 F.2d 1040, 1047
(6th Cir. 1984); United States v. Garner,
837 F.2d 1404, 1418 (7OR Cir. 1987);
United States v. Watchmaker, 761 F.2d
1459, 1469 (llth Cir. 1985).
eee
53
First Amendment, challenges to the
constitutional vagueness of a statute
therefore present a formidable obstacle.
In fact, this Court once described the
necessary showing in the following manner:
If any fool would know that a
particular category of conduct
would be within the reach of the
statute, if there is an
unmistakable core that a
reasonable person would know is
forbidden by the law, ' the
enactment is not
unconstitutional on its face and
should not be vulnerable to a
facial attack.
Kolender v. Lawson, 461 U.S. 352, 370-71
(1983) (White, J., dissenting).
Bearing these heavy burdens in mind,
it is respectfully asserted that no "fool
would know" that which the federal courts
have asserted that the phrase "chargeable
under state law" means. For example, it
has been held that even though the statute
of limitations has run on the state crime
which is being utilized as a predicate for
——
54
RICO it is nonetheless still somehow
"Chargeable" under state law.** It has
been held that a defendant who has been
previously acquitted of a state offense is
nonetheless still "chargeable under state
law."3 It has even been held that the
see United States v. Forsythe, 560
F.2d 1127, 1134-35 (3d Cir. 1977); United
States v. Davis, 576 F.2d 1065, 1066-67
(3a Cir. 1978).
as the Court noted in United States
v. Coonan, 938 F.2d, 1564 (2d Cir. 1991):
"Kelly asserts that a crime for which he
has already been acquitted in state court
is no longer 'chargeable under state law'
because further state prosecution would be
barred by the double jeopardy clause.
. We have little difficulty
concluding that a state prosecutor's
ability to obtain an indictment ... is
wholly irrelevant to whether the
underlying conduct satisfies the
‘chargeable under state law' definition.
Rather section 1961(1) (A) merely describes
the type of generic conclusion which will
serve as a RICO predicate." Accord United
States v. Pungitore, 910_F.2d 1084, 1105
(3d Cir. 1990); United States v. Russotti,
7av.6 O6FL 3G 0 27, CUO Se Ce. CCA), 6h
denied, 465 U.S. 1022 (1983); United
States v. Licavoli, 725 F.2d 1040, 1046-47
(6th Cir. 1984); United States v.
Malatesta, 583 F.2d 748, 758 (5th Cir.
1978).
———
55
failure to establish state statutory
requirements which are pre-requisite under
state law to charge an individual with a
crime does not prevent a defendant from
being "chargeable under state law" for
purposes of RICO.“ In fact, it has been
held that all that is necessary to meet
the requirements of Section 1961 is that
the conduct alleged be "typical of the
serious crime dealt with by the state
statute;" whatever that means.
If one analyzes the constitutionality
of Section 1961 by following the precept
that, absent some compelling reason to the
contrary, the language utilized by the
legislature must be afforded its ordinary
meaning, then how can it be said that "any
“See United States v. Friedman, 854
F.2d 535, 565-66 (2d Cir. 1988); United
States v. Paone, 782 F.2d 386, 393 (2d
Cir. 1986); United States v. Brown, 555
F.2d 407, 418 n.2 (5th Cir. 1977), cert.
denied, 435 U.S. 404 (1978).
56
fool" would realize that the applications
described above would be permitted? Is it
reasonable to assume that an individual
who has already been acquitted would
realize that he is still nonetheless
"Chargeable under state law" for RICO
purposes? Would “any fool" conclude that
even though the state statute of
limitations has run with respect to the
conduct alleged he is somehow still
"chargeable" with that conduct under state
law? Would someone of ordinary
intelligence presume that even though the
RICO statute specifically says that the
conduct must be "chargeable under state
law," that it doesn't have to be
"chargeable" at all but rather it only has
to be “typical of the serious crime dealt
with" by state statutes?
The interpretation which has been
placed upon Section 1961 produces the
aceEeSENCnE STEERER eee
57
following inevitable conclusions. Either
the phrase "chargeable under state law"
means exactly what it says and the conduct
must indeed be "chargeable," or the
statute is unconstitutionally vague.
Conversely, either the lower courts have
unjustifiably judicially reconstructed the
language of Section 1961 to produce an
absurd result or the uncertainty of the
language fails to provide adequate notice.
b. The Constitutionality of Pattern.
The second prong of Petitioner's
attack on the constitutionality of RICO
concerns this Court's prior efforts to
bring harmony to the lower courts
interpretation and application of the
"pattern" provision of RICO (18 U.S.C.
§ 1961[5]).
Turning briefly to the pattern issue,
in Sedima, S.P.R.L. v. Imrex Co., 473 U.S.
479 (1985) the Court dealt with the
58
dynamic of "pattern," principally from the
perspective of the number of acts or
amount of activity which the concept
seemed to embrace. From Sedima evolved
the now well-settled, but apparently not
easily applied maxim that "while two acts
are necessary, they may not be
sufficient." Id. at 496 n.14.
Following Sedima, the Court in H.J
Inc. v. Northwestern Bell Telephone Co.,
492 U.S. 229 (1989), sought to deal with |
the related question presented by
"pattern," of what proof was necessary,
regardless of the number of acts
established, in terms of the
interrelationship and temporal parameters
of such activity. From H.J. evolved the
principle that for a series of acts to
constitute a "pattern" they had _ to
demonstrate "continuity plus
relationship." Once again, while
———ee
59
theoretically sound, it was a concept
which would prove very difficult to apply.
The concurring opinion by Justice
Scalia® in H.J. revealed the discontent
of at least four members of this Court
with RICO. Notwithstanding the admirable
attempt by the majority to fashion guide
posts for the construction and application
of the term "pattern," Justice Scalia
suggested in his concurring opinion that
it was simply impossible to do. Even the
majority found it difficult to conceal its
discomfort with the continuing problems
that attended the application of the tern.
The Court remarked that Congress had
ignored the Court's clear invitation to
provide the legislative augmentation
necessary to cure the inherent problems
with whom the Chief Justice, Justice
O'Connor and Justice Kennedy joined.
60
with the statute. As the majority
observed:
But we suggested that RICO's
expansive uses appear to be
primarily the result of the
breadth of the predicate
| offenses, in particular’ the
| inclusion of wire, mail, and
| securities fraud, and the
failure of Congress and the
courts to develop a meaningful
concept of ‘'pattern' -- both
factors that apply to criminal
as well as civil applications of
the Act. . . . Congress has done
| nothing in the interim further
| to illuminate RICO's key
requirement of pattern of
racketeering; and as the
plethora of different views
expressed by the Court of
Appeals since Sedima
demonstrates .. . developing a
meaningful concept of ‘pattern'
within the existing statutory
framework has proved to be no
easy task.
H.J., 492 U.S. at 236.
It is respectfully asserted that
notwithstanding the efforts by the Court
in Sedima and H.J., the uncertainty and
confusion which pervades the lower courts
efforts to apply "pattern" continues
ee
61
unchecked. In United States v. Private
Sanitation Industry Association, 793
F.Supp. 1114, 1156-60 (E.D.N.Y. 1992),
Judge Glasser took the occasion to review
the results of H.J. since its
pronouncement. As the Court noted:
If there were any lingering
doubt whether the provisions of
the RICO pattern element are
understandable by persons of
ordinary intelligence, one need
only review the case law that
has followed H.J. Inc. It
somewhat understates the matter
to observe, as has one court of
appeals, that ‘a concrete
definition for precisely what
activities will constitute a
‘pattern' for purposes of the
RICO statute has eluded the
federal courts.'
Private Sanitation, 793 F.Supp. at 1160
(footnote omitted) (quoting U.S. Textiles,
Inc. v. Anheuser-Busch Companies, 911 F.2d
1261, 1266 [7th Cir. 1990]). Similarly,
as the Seventh Circuit observed in Hartz
v. Friedman, 919 F.2d 469, 472 (7th Cir.
1990), "[s]jince the Supreme Court decided
A
62
H.J., Inc., the Seventh Circuit has not
found patterns to exist in any civil RICO
cases which have presented the issue."
Judicial efforts notwithstanding, one
is now justified in observing that it has
been empirically established in the myriad
of decisions that have followed Sedima and
H.J., Inc., that the term "pattern" is
Simply not a term which is sufficiently
definite to produce the necessary
uniformity of application and
interpretation which is required by a
criminal statute. This Court has twice
warned the Congress of the problems which
attend the present language utilized in
the RICO statute. It may well be that the
Legislature's inaction can be attributed
to the fact that the Justice Department is
*6see also Firestone v. Galbreath, 747
F.Supp. 1556, 1581 (S.D. Ohio 1990)
("(This]} Court finds that the "pattern"
requirement is unconstitutionally vague as
applied").
—————E
63
rather pleased with the availability of a
statute which seems to have such
extraordinary reach. Counsel is certainly
unaware of any effort by the Executive
Branch to use its not insubstantial
influence with Congress to cure the
dilemma created by the indefiniteness of
RICO.
So long as the language of RICO
remains unchanged, the once described
formidable task of trying to "develop a
meaningful concept of 'pattern' within the
existing statutory framework," may well be
an impossible task. This Court has now
twice attempted to fashion a meaning for
the term "pattern" and in each instance
the results have been discouraging, if not
flat out unsuccessful.
If RICO teetered on the brink of
unconstitutional vagueness at the time the
Court decided H.J., it has surely been
64
pushed over the edge by the decisions
which have followed. When one adds the
additional problems which the language of
Section 1961 brings to the calculus, the
results seems inevitable. rt is
respectfully asserted that it is time for
this Court to announce that which has been
conclusively established in decision after
decision -- RICO is’ unconstitutionally
vague.
65
CONCLUSION
For the foregoing reasons it is
respectfully asserted that a petition for
a writ of certiorari should be granted.
Dated: New York, New York
November 25, 1992
Respectfully submitted,
JOHN W. MITCHELL
LaROSSA, MITCHELL & ROSS
Attorneys for Petitioner
Morris J. Eisen
41 Madison Avenue
New York, New York 10010
(212) 696-9700
Of Counsel
Jacqueline N. Haberfeld
Susan G. LaRossa’”
“Pending admission to the New York
Bar.
APPENDIX
la
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
7
Nos. 1311, 1312, 1313, 1315, 1324, 1325, 1327, 1491
August Term 1991
Argued: April 29, 1992 Decided: August 17, 1992
Docket Nos. 91-1549(L), -1551, -1552, -1553,
-1554, -1555, -1633, 92-1032
7
UNITED STATES OF AMERICA,
Appellee,
—V—
MORRIS J. EISEN, JOSEPH P. NAPOLI, HAROLD M. FISH-
MAN, DENNIS RELLA, MARTY GABE, GERALDINE G.
MORGANTI, and ALAN WEINSTEIN,
Defendants-Appellants,
LEONARD KAGEL,
Defendant.
—<e-
Before:
MESKILL, Chief Judge,
TIMBERS and NEWMAN, Circuit Judges.
>
Appeal from judgments of the United States District.
Court for the Eastern District of New York (Charles P.
2a
Sifton, Judge), convicting defendants of RICO violations,
in violation of 18 U.S.C. § 1962(c), (d) (1988), arising
out of a law firm’s fraudulent conduct of personal injury
cases.
Affirmed.
7
ALAN M. DERSHOWITZ, New York, N.Y.
(Nathan Z. Dershowitz, Dershowitz &
Eiger, New York, N.Y.), for defendant-
appellant Eisen.
JOSEPH P. NAPOLI, pro se, New York, N.Y.
STEVEN R. KARTAGENER, New York, N.Y.
(Roger L. Stavis, Kartagener & Stavis,
New York, N.Y., on the brief), for defen-
dant-appellant Fishman.
RICHARD MISCHEL, New York, N.Y., for
defendants-appellants Rella and Mor-
ganti.
MARTIN J. SIEGEL, New York, N.Y., for
defendant-appellant Gabe.
RONALD E. DEPETRIS, New York, N.Y. (Seth
F. Kaufman, Carro, Spanbock, Kaster &
Cuiffo, New York, N.Y., on the brief), for:
defendant-appellant Weinstein.
FAITH E. GAY, Asst. U.S. Atty., Brooklyn,
N.Y. (Andrew J. Maloney, U.S. Atty.,
Susan Corkery, David C. James, Peter A.
Norling, Asst. U.S. Attys., Brooklyn,
N.Y., on the brief), for appellee.
>
3a
JON O. NEWMAN, Circuit Judge:
This is an appeal of RICO convictions arising from a
law firm’s fraudulent conduct of civil litigation as plain-
tiff’s counsel in personal injury cases. The appeal is
brought by Morris J. Eisen, Joseph P. Napoli, Harold M.
Fishman, Dennis Rella, Marty Gabe, Geraldine G. Mor-
ganti, and Alan Weinstein from judgments of the United
States District Court for the Eastern District of New York
(Charles P. Sifton, Judge), following a four-month jury
trial. We affirm.
Background
Morris J. Eisen, P.C. (“the Eisen firm”) was a large
Manhattan law firm that specialized in bringing personal
injury suits on behalf of plaintiffs. The defendants, seven
of the Eisen firm’s attorneys, investigators, and office per-
sonnel, were tried jointly on two.counts of conducting and
conspiring to conduct the affairs of the Eisen firm through
a pattern of racketeering activity, in violation of 18 U.S.C.
§§ 1962(c), (d) (1988). The indictment alleged, as the
underlying acts of racketeering, that each of the defen-
dants committed, among other crimes, numerous acts of
mail fraud, in violation of 18 U.S.C. § 1341, and bribery
of witnesses, in violation of New York Penal Law
§ 215.00 (McKinney 1988).
Eisen was the founder, sole shareholder, and principal
attorney of the Eisen firm. Napoli was associated with the
Eisen firm in an “of counsel” capacity, and he was the
main trial attorney for the firm. Fishman, a trial attorney,
was also “of counsel” to the firm. The Eisen firm regu-
larly used investigators to assist attorneys in the trial
preparation of personal injury cases, and defendants
4a
Weinstein, Gabe, and Rella were private investigators
affiliated with the firm. Morganti was the office admin-
istrator of the Eisen firm with responsibility for managing
the daily affairs of the firm, including assigning attorneys
and investigators to particular cases, monitoring the firm’s
daily calendar, and managing the financial and personnel
operations of the firm.
The evidence at trial established that the defendants
conducted the affairs of the Eisen law firm through a pat-
tern of mail fraud and witness bribery by pursuing coun-
terfeit claims and using false witnesses in personal injury
trials, and that the Eisen firm earned millions in contin-
gency fees from personal injury suits involving fraud or
bribery. The methods by which the frauds were accom-
plished included pressuring accident witnesses to testify
falsely, paying individuals to testify falsely that they had
witnessed accidents, paying unfavorable witnesses not to
testify, and creating false photographs, documents, and
physical evidence of accidents for use before and during
trial. The Government’s proof included the testimony of
numerous Eisen firm attorneys and employees as well as
Eisen firm clients, defense attorneys, and witnesses
involved in the fraudulent personal injury suits. Tran-
scripts, correspondence, and trial exhibits from the fraud-
ulent personal injury suits were also introduced.
The racketeering acts considered by the jury related to
the defendants’ conduct with regard to 18 fraudulent per-
sonal injury lawsuits in which the plaintiff was repre-
sented by the Eisen firm. The defendants were found
guilty of racketeering acts involving the following per-
sonal injury cases:
Eisen: Mulnick, Schwartz, Stanton;
Napoli: Ferri, Mulnick, Robbins, Rehberger,
5a
Fishman: Aboud, Schwartz, Tuning, Nieves;
fl Rella: Miceli, Rehberger, Schwartz;
Gabe: Robbins, Stanton, Nieves;
Morganti: Miceli, Schwartz, Stanton, Pietrafesa;
Weinstein: Aboud, Schwartz, Tuning, Nieves,
Metrano.
The jury convicted all seven defendants of RICO sub-
Stantive and conspiracy offenses after three weeks of
deliberations.!
Discussion
I. Legal Sufficiency of Charges
A. Mail Fraud
Weinstein argues that a scheme to deprive an adversary
of money by means of a civil lawsuit conducted fraudu-
lently does not constitute mail fraud because there is no
deprivation of property as defined by the Supreme Court
in McNally v. United States, 483 U.S. 350 (1987). In that
case, the Supreme Court held that the mail fraud statute
does not reach schemes to defraud citizens of their right
to honest and impartial government but is instead “limited
in scope to the protection of property rights.” /d. at 360.
Looking to the legislative history of the statute, which
“indicates that its original impetus . . . was to protect the
people from schemes to deprive them of their money and
property,” the Court concluded that
1 ~Rella’s RICO conviction was vacated because the racketeering acts
underlying that conviction were not committed within the limitations
period.
ee ——i‘“‘istsS
6a
the words “to defraud” commonly refer to “wronging
One in his property rights by dishonest methods or
schemes,” and “usually signify the deprivation of
something of value by trick, deceit, chicane or over-
reaching.”
Id. at 356, 358 (footnote and citation omitted). In revers-
ing the convictions of defendants charged with scheming
to deprive the state of its right to honest government by
having a state agency share proceeds with business enti-
ties in which the defendants held interests, the Supreme
Court emphasized that there was no allegation that the
State or its citizens had been deprived of any money or
property. /d. at 360-61.
Weinstein contends that the right of the civil defendants
and their liability insurers to have a judgment in a civil
proceeding obtained free of fraud and perjury is an intan-
gible right not cognizable under the mail fraud statute.
The Government responds that the mail fraud predicates
at issue here allege a scheme to defraud that comports
squarely with the McNally definition of mail fraud
because the Eisen indictment explicitly alleges a scheme
to deprive the victims of money.
Weinstein relies on United States v. Eckhardt, 843 F.2d
989 (7th Cir.), cert. denied, 488 U.S. 839 (1988). In Eck-
hardt, the defendant had operated a phony tax shelter
scheme and had committed perjury and submitted false
documents in a civil proceeding brought by his investors
against the IRS to challenge disallowance of their deduc-
tions. The indictment charged him with a scheme
To defraud the United States by impeding and
impairing, obstructing and defeating the lawful func-
tions of the Internal Revenue Service in the ascer-
tainment, computations, assessment and collection of
the revenue, to wit, income taxes of taxpayer-
investors... .
843 F.2d at 996. The Seventh Circuit concluded that this
allegation failed to allege mail fraud in light of McNally.
It found that the indictment charged the defendant with
interfering with the IRS’s proper ascertainment and
collection of income taxes. It does not specifically
allege that he deprived the government of revenue.
. . . [I]t is not sufficient to allege conduct which
could have resulted in the government’s failure to
collect revenue owed to it. . . . The connection
between the charged conduct and the loss of revenue
here is too tenuous and speculative to constitute an
actual deprivation of money or property.
Id. at 996-97.
Weinstein’s reliance on Eckhardt is unavailing. The
Eisen indictment contained precisely what was found to
be lacking in the Eckhardt indictment: the allegation of a
scheme to defraud the litigant of money or property. We
have upheld charges similar to those made in Eckhardt
where an indictment has alleged a scheme to defraud the
Government of money. See United States v. Porcelli, 865
F.2d 1352 (2d Cir.), cert. denied, 493 U.S. 810 (1989)
(upholding conviction for mail fraud against McNally
challenge where defendant was charged with defrauding
State government of its right to sue for sales tax he failed
to collect); United States v. Rubin, 844 F.2d 979, 985-86
(2d Cir. 1988) (upholding conviction for mail fraud where
defendant defrauded New York State of public revenues).
Weinstein next contends that even if the civil defen- .
dants were deprived of property, the only party
“deceived” by the alleged fraud were civil juries that
8a
awarded the money judgment. Because the juries were not
claimed to have been injured, Weinstein argues that the
“convergence theory” of mail fraud, which, he contends,
requires that the party defrauded and the party injured be
identical, see United States v. Evans, 844 F.2d 36, 39 (2d
Cir. 1988), is not satisfied. Even if the “convergence the-
ory” is applicable, which we do not decide,? its require-
ments are met here. Weinstein’s argument that “the civil
defendant is contesting, not relying on, the truth of the
allegedly false testimony,” Brief for Appellant Weinstein
at 36, and is therefore not deceived by a corrupt adversary
takes an unrealistically narrow view of the charges in this
case and ignores settled authority that perjury and fake
evidence defraud the adverse party.
First, a number of the mail fraud predicates in the
indictment alleged fraud that was perpetrated directly on
the civil defendants and their liability insurers before the
lawsuit reached trial. In several cases, misrepresentations
in pleadings and pretrial submissions were made in the
hope of fraudulently inducing a settlement before trial.
And in cases that went to trial, fraudulent representations
concerning the claims were directed at the civil defen-
dants and their insurers in an effort to induce settlement
before verdict. In fact, several of the lawsuits listed in the
indictment were settled. Even in cases decided by a jury,
defendants’ misconduct was intended to defraud their
adversaries. Litigants depend on the integrity of the con-
2 Some District Courts in this Circuit have concluded that this Court's
dicta in Evans stands only for the proposition that a civil RICO plaintiff
must have been injured to have standing under section 1964. See, e.g.,
Shaw v. Rolex Watch U.S A., 726 F. Supp. 969, 972-73 (S.D.N.Y. 1989);
Galerie Furstenberg v. Coffaro, 697 F. Supp. 1282, 1288 (S.D.N-Y.
1988). Other district courts outside this Circuit have rejected the con-
vergence theory altogether. See Texas Air Corp. v. Air Line Pilots Ass'n
Int., No. Civ. 88-0804, 1989 U.S. Dist. LEXIS 11149 (S.D. Fla. July 14,
1989); Lewis v. Lhu, 696 F. Supp. 723, 727 (D.D.C. 1988).
Ya
duct of participants in civil proceedings though disputing
the validity of their opponents’ claims to impose or resist
civil liability. It is one thing to challenge the perception,
memory, or bias of an opponent’s witnesses, it is quite
another for a party’s lawyer and a witness to concoct tes-
timony that they know has been wholly fabricated.
Moreover, Weinstein’s claim that perjured testimony
suborned by the defendants was directed at the civil juries
rather than at the other litigants ignores relevant case law.
In United States v. Rodolitz, 786 F.2d 77 (2d Cir.), cert.
denied, 479 U.S. 826 (1986), the defendant had brought a
fraudulent civil action against his insurance company and
recovered a money judgment from the company at trial. In
affirming the defendant’s conviction for mail fraud, this
Court explicitly recognized that false evidence ata civil
trial works a fraud not only on the jury but on the oppos-
ing party as well. /d. 786 F.2d at 80-81. See also Averbach
v. Rival Manufacturing Co., 809 F.2d 1016 (3d Cir.), cert.
denied, 482 U.S. 915 (1987). :
Weinstzin also argues that the causation between the
fraud and the resulting deprivation of property is too
“attenuated.” However, the Government need establish
only an intent to harm; it is not required to prove that the
victim was actually injured as a result of the scheme, see
United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987),
much less that any injury that did occur resulted solely
from the fraud, see Rodolitz, supra. In Rodolitz, we found
a sufficient causal link between the defendant’s failure to
disclose evidence in his trial to recover losses from his
insurance company and the resulting judgment against the
company, regardless of what the trial jury may actually
have relied upon in reaching its verdict.
10a
Finally, Weinstein contends that permitting the mail
fraud offenses charged in the Eisen indictment to serve as
RICO predicate acts conflicts with the deliberate decision
made by Congress in omitting perjury as one of the enu-
merated RICO predicate offenses within the definition of
“racketeering activity.” See 18 U.S.C. § 1961(1). Contrary
to the Government’s abrupt dismissal of this argument as
“baseless,” Brief for Appellee at 36, we recognize that
there is some tension between the congressional decision
to include federal mail fraud as a predicate offense and to
exclude perjury, whether in violation of federal or state
law. That tension is illustrated by this prosecution in
which the fraudulent scheme consists primarily of arrang-
ing for state court witnesses to commit perjury.
Though the tension exists, we do not believe it places
the indictment in this case beyond the purview of RICO.
Congress did not wish to permit instances of federal or
State court perjury as such to constitute a pattern of RICO
racketeering acts. Apparently, there was an understand-
able reluctance to use federal criminal law as a back-stop
for all state court litigation. Nevertheless, where, as here,
a fraudulent scheme falls within the scope of the federal
mail fraud statute and the other elements of RICO are
established, use of the mail fraud offense as a RICO pred-
icate act cannot be suspended simply because perjury is
part of the means for perpetrating the fraud. We do not
doubt that where a series of related state court perjuries
occurs, it will often be possible to allege and prove both
a scheme to defraud within the meaning of the mail fraud
Statute as well as the elements of a RICO violation. But in
such cases, it will not be the fact of the perjuries alone
that suffices to bring the matter within the scope of RICO.
In any event, we cannot carve out from the coverage of
lla
RICO an exception for mail fraud offenses that involve
State Court perjuries.
B. State Law Bribery
1. “Witness” as required by $215.00 of New York
Penal Law. Weinstein, Rella, Morganti, and Fishman all
attack various witness bribery racketeering acts by
arguing that the individual allegedly bribed was not a
“witness or a person about to be called as a witness”
within the meaning of Section 215.00 of the New York
Penal Law. The statute provides in pertinent part:
A person is guilty of bribing a witness when he con-
fers, or offers or agrees to confer, any benefit upon a
witness or a person about to be called as a witness in
any action or proceeding upon an agreement or
understanding that (a) the testimony of such witness
will thereby be influenced, or (b) such witness will
absent himself from, or otherwise avoid or seek to
avoid appearing or testifying at, such action or pro-
ceeding.
N.Y. Penal Law § 215.00 (McKinney 1988)
The New York Court of Appeals has held that a per-
son’s status as a witness under section 215.00 “depends
upon the evidence he ean supply the court, not the imme-
diacy of the need for the evidence,” nor whether a sub-
poena has been issued in order to secure it. People v. Bell,
538 N.Y.S.2d 754, 760, 73 N.Y.2d 153, 164 (1989). The
Court stated that if “the evidence is sufficient to support
a finding that defendant reasonably should have believed
that the person would be a witness and that he intention-
ally attempted to influence the witness’s testimony. . .
the crime is complete.” /d.
l2a
Weinstein challenges the witness bribery racketeering
act in one of the fraudulent tort cases, Metrano, on the
ground that there was insufficient evidence that Alberto
Troche was a “witness or a person about to be called as a
witness” within the meaning of section 215.00. The
Metrano case arose from injuries sustained by Metrano
when he was shot in the leg by a Manhattan parking lot
attendant, Alberto Troche, during a row over a parking lot
fee. Metrano subsequently retained the Eisen firm, which
brought a civil suit against Troche and Troche’s employer,
Simone Grossman. The action against Grossman was
based on allegations that Grossman should have known
that Troche was dangerous and carried a gun. The Eisen
firm retained Weinstein as the investigator on the case,
which settled on the eve of trial for $300,000.
At the Eisen trial, Troche testified that Weinstein had
come to his home and offered him $5,000 to testify that
his employer was aware that he had dangerous propensi-
ties and that he carried a gun. Troche had secretly taped
this meeting, and the tape was introduced into evidence at
the Eisen trial.
Troche, having inflicted the injury that formed the basis
of the tort action, was clearly someone Weinstein rea-
sonably should have believed would be a witness in the
case. On the tape, Weinstein made repeated references to
what Troche must do “when he comes to court” or when
he “takes the stand,” showing that he clearly anticipated
that Troche would be a key witness in the case.
In an effort to avoid Troche’s obvious status as a wit-
ness, Weinstein argues that he did not commit bribery
against Troche, but that Troche committed extortion
against him. The extortionate conduct, he contends,
defeats a section 215.00 violation because it negates the
l3a
essential element of mens rea in the crime of bribery.
Although the tape recording provides some support for
Weinstein’s contention that Troche might have offered his
testimony to the highest bidder, other aspects of the tape
recording and Troche’s testimony at the Eisen trial pro-
vide sufficient evidence that Weinstein had the requisite
intent to bribe Troche and that Weinstein’s conduct fits
easily within the proscription of section 215.00. Both the
tape recording and the trial testimony reveal that Wein-
stein initiated the contact with Troche, that Weinstein was
the first to broach the subject of money during their taped
meeting, and that Weinstein described the testimony he
sought to buy from Troche. Clearly a reasonable jury
could find that Troche was a “person about to be called as
a witness” in the Metrano trial and that Weinstein had the
requisite intent to bribe Troche.
Rella argues that Eddie Goldstein, who testified in the
Rehberger case was not a “witness” within the meaning of
section 215.00, and Morganti makes the same claim with
respect to Arnold Lustig, who testified in the Schwartz
and Aboud cases, because neither Goldstein nor Lustig
had observed the accidents about which they testified but
were paid to offer completely fraudulent testimony. The
claim that Goldstein and Lustig do not meet the statutory
definition of “witness” because their testimony was
entirely fraudulent and thus they had no “evidence” to
supply the court is frivolous. In the dictionary sense, a
witness is “one who, being present, personally sees or
perceives a thing,” or one “whose declaration under oath
(or affirmation) is received as evidence for any purpose.”
See Black’s Law Dictionary 1438 (5th ed. 1979). Section
215.00 contains no indication that it is limited to this core
definition of this term to the exclusion of a more func-
tional definition. The section, which explicitly reaches
l¢a
attempts to influence the testimony of a “witness” as well
as those “about to be called as a witness,” applies to ben-
efits conferred in order to induce someone to hold himself
Out as a witness and offer wholly fraudulent testimony to
the court. The statute is not limited to payments for tes-
timony that is false only in part. Both Goldstein and
Lustig were paid money to give false testimony, both were
prepared to testify falsely, and both were called to testify
falsely at personal injury trials. It is of no consequence
that the “evidence” offered and the status of the men as
“witnesses” was entirely an outgrowth of the defendants’
criminal designs.
2. Falsity of influenced testimony. Section 215.00
provides in pertinent part that a person is guilty of brib-
ing a witness “when he confers or offers or agrees to con-
fer, any benefit upon a witness or a person about to be
called as a witness . . . upon an agreement or under-
standing that (a) the testimony of such witness will
thereby be influenced, . . . .” On its face, the statute
requires just two elements of proof: the offer of a benefit
to a witness and the agreement or understanding that the
witness’s testimony will be influenced by such benefit.
See People v. Shaffer, 130 A.D.2d 431, 432, 515 N.Y.S.2d
470, 471 (1st Dep’t 1987) (“All that is required for a
bribery to be complete is the offer or agreement to confer
a benefit upon the defendant’s agreement or understand-
ing that the witness’ testimony will thereby be influ-
enced.”’). “Understanding,” as used in the statute, has long
been construed as tantamount to the defendant's intent,
see People v. Kathan, 136 A.D. 303, 120 N.Y.S. 1096
(1910), and it is not necessary for conviction that the jury
find that the bribe’s intended recipient shared that intent.
See People v. Kramer, 132 Misc. 2d 753, 505 N.Y.S.2d
—
l5a
769 (2d Dep’t), modified on other grounds, 132 A.D.2d
708, 518 N.Y.S.2d 189 (2d Dep’t 1986). The statute con-
tains no requirement that the benefit actually be conferred
or that the testimony actually be influenced. See Shaffer,
130 A.D.2d at 432, 515 N.Y.S.2d at 471.
Weinstein argued in the District Court that section
215.00 requires two additional elements of proof: (a) that
the defendant subjectively believe that testimony, “influ-
enced” as he desires, would be untruthful and (b) that tes-
timony so “influenced” would in fact be untruthful.
Although the District Judge originally incorporated both
requirements in the proposed charge, he reconsidered his
view following the Government’s timely objection. Wein-
stein now complains about the substance and the timing of
that ruling.
The charge that Judge Sifton ultimately gave incorpo-
rated one of the elements proposed by Weinstein. He
instructed the jurors that with respect to the intent element
on the charge of witness bribery, they must find that the
defendant paid money to a witness in order to get the wit-
ness to modify the substance of his testimony in a way
that the defendant believed would be false. He did not
instruct the jury that it would be a defense to the crime if
by sheer happenstance the testimony so influenced turned
Out to be true.
The essence of bribery is the intent to influence
improperly the conduct of another by bestowing a bene-
fit, see 39 N.Y. Penal Law § 215.00, at 553 (Practice
Commentaries) (McKinney 1988); as there is no require-
ment that the intended result be accomplished, see Shaf-
fer, 130 A.D.2d at 432, 515 N.Y.S.2d at 471, the District
Judge properly refused to charge the jury that the fortuity
l6a
that the testimony, as “influenced,” turned out to be truth-
ful would be a defense to the charge.’
Weinstein also complains that the District Court’s
charge on the elements of bribery violated Rule 30 of the
Federal Rules of Criminal Procedure, requiring a trial
court to issue rulings on requests to charge prior to sum-
mations in order to afford the parties an opportunity to
frame their closing remarks in light of the court’s subse-
quent legal instructions. See United States v. Lyles, 593
F.2d 182, 186 (2d Cir.), cert. denicd, 440 U.S. 972 (1979);
United States v. Tourine, 428 F.2d 865, 868-69 (2d Cir.
1970), cert. denied, 400 U.S. 1020 (1971). If the Rule is
violated, reversal is required where the defendant can
show that he was “substantially misled in formulating his
arguments” or otherwise prejudiced. United States v.
Smith, 629 F.2d 650, 653 (10th Cir.), cert. denied, 449
U.S. 994 (1980). See Lyles, 593 F.2d at 186; United States
v. Conlin, 551 F.2d 534, 539 (2d Cir.), cert. denied, 434
U.S. 831 (1977).
Weinstein was not prejudiced by Judge Sifton’s deci-
sion, made after the charging conference, to revise the
proposed charge as to the elements of witness bribery.
When the issue was raised in the charging conference, the
Government objected to the proposed charge. Following
an exchange between the Court and the Government on
the question of whether the Government had to prove the
actual falsity of the testimony sought by the defendant,
Judge Sifton said, “Ail mght. I'll consider that exception.”
3 The Government argues that the bribery statute properly applies
whenever money is paid to influence testimony, even if money is paid to
secure what the defendant believes is truthful testimony. Because the
Judge's charge required the jury to find that the defendant believed that
he was seeking to influence testimony in a false direction, we need not
decide if section 215.00 extends to payments to influence a witness to
testify truthfully.
l7a
Weinstein was on notice that his requested charge was the
subject of further consideration and could not have been
“substantially misled” by the Court in formulating his
summation argument, which contended that the Govern-
ment had to prove the actual falsity of the testimony
sought. Cf. Wright v. United States, 339 F.2d 578, 579-80
(9th Cir. 1964) (reversal required where court did not
respond to defense request for pre-summation rulings on
requests to charge, advised counsel to “go ahead and
argue the case any way you want to argue it,” and in its
charge rejected the theory of defense offered in summa-
tion). Moreover, following the summation, the Court
advised Weinstein’s counsel that the charge was not in
accord with his argument and offered counsel an oppor-
tunity to address the jury again. Having ignored this offer,
counsel has no valid claim of prejudice.
II. Sufficiency of Evidence
A. The Mulnick Case—Racketeering Act Three
The jury found Eisen guilty of witness bribery and
found Eisen and Napoli guilty of mail fraud in connection
with the Mulnick case. Both Eisen and Napoli contend
that the evidence presented at trial was insufficient to
prove beyond a reasonable doubt that they committed
mail fraud in connection with the Mulnick case. Both
defendants also contend that invalidation of the Mulnick
predicate would undermine their RICO substantive and
conspiracy convictions. Relying on the standard recently
employed by this Court in United States v. Paccione, 949
F.2d 1183, 1198 (2d Cir. 1991), cert. denied, 112 S. Ct.
3029 (1992), defendants argue that in a RICO case, where
one or more predicates is held invalid on appeal, the
RICO conviction cannot stand unless the error in sub-
18a
mitting the invalid predicate to the jury is demonstrated to
be harmless beyond a reasonable doubt.* Upon careful
review of the record, we conclude that the defendants’
sufficiency arguments are unavailing.
The Mulnick case arose out of injuries suffered by Beth
Mulnick in 1979 when she was struck by a car as she was
crossing a Manhattan street with her friend Patti Kibel.
The Eisen firm sued the car’s driver on Mulnick’s behalf.
Napoli was the attorney assigned to the case, which set-
tled for $1 million after the trial testimony of Patti Kibel.
At the Mulnick trial, Kibel had testified that Mulnick was
crossing the street with the light and within the crosswalk,
dropped her glove, and returned several paces to retrieve
it, and that the car then ran into her while she was in the
crosswalk with the light still in her favor.
At the Eisen trial, Kibel testified that her testimony at
the Mulnick trial had been false and that various Eisen
firm lawyers, including Eisen and Napoli, caused, or
acquiesced in, her false testimony that Mulnick had been
crossing with the light. Eisen and Napoli contend that
Kibel’s testimony at the Eisen trial was too equivocal to
support a jury finding that Eisen or Napoli either prepared
or caused Kibel to testify falsely at the Mulnick trial.
With respect to Napoli, Kibel testified at the Eisen trial
that, prior to her testimony at the Mulnick trial, she told
the man who “prepared” her that her anticipated testimony
about the accident was false. Although Kibel could not
recall the identity or appearance of the lawyer who con-
4 In Paccione, the Court found that there was no doubt that the jury
would have convicted defendant Paccione of a RICO violation even in
the absence of the invalid predicate because eight valid predicates
remained and because the pattern of verdicts returned against co-defen-
dants on the RICO count demonstrated that the invalid predicate was not
an ingredient in the jury's RICO verdicts.
19a
ducted this trial, it was established through the testimony
of other witnesses and documentary evidence that Napoli
was the Eisen firm trial attorney who questioned wit-
nesses at the Mulnick trial. Contrary to Napoli’s sugges-
tion, the Government was not required to prove that he
specifically formulated the lie to which Kibel was to tes-
tify. Instead, as the indictment charged, the Government
needed to establish that Napoli had either prepared or
caused Kibel to testify falsely. To prove this, it was
plainly sufficient to establish that Kibel told Napoli the
truth about the Mulnick accident but that Napoli did noth-
ing to dissuade her from testifying to the false version
conjured by the Eisen firm and that he caused her to tes-
tify falsely by putting her on the stand and eliciting the
perjurious testimony from her.
With respect to Eisen, Kibel’s testimony is even more
indefinite. Eisen claims that Kibel’s wavering testimony
at the Eisen trial is insufficient proof that he was the per-
son who instructed Kibel to provide false testimony in
connection with the Mulnick case. Kibel’s recollection
was vague as to the details of her conversations with
Eisen, but on direct examination she stated that she told
Eisen the truth about Beth Mulnick’s accident and that he
instructed her to give a false account of how the accident
occurred. However, when questioned on cross-examina-
tion as to any particular element of the fabricated story
offered by her at the Mulnick trial, Kibel could not recall
whether Eisen or someone else in the Eisen firm had sug-
gested the alteration. The Government argues that Kibel’s
assertion on direct that Eisen instructed her how to testify
is not invalidated by her inability to remember on cross-
examination what Eisen had said to her on specific topics
and who precisely had caused her to testify as she did to
particular aspects of her testimony. The Government
20a
argues that the weakness of Kibel’s testimony was a mat-
ter for cross-examination, and that any apparent tension
in her testimony was a matter of credibility to be resolved
by the jury.
We need not decide whether Kibel’s equivocal testi-
mony constituted sufficient evidence to support the jury’s
finding with respect to the mail fraud allegation against
Eisen specified in the Mulnick predicate act, racketeering
act 3. That act (one of three charged against Eisen)
alleged that Eisen engaged in criminal activity in con-
nection with the Mulnick case in two distinct ways: (1)
that he committed mail fraud for the purpose of executing
a scheme to prepare and cause Patti Kibel to testify
falsely at trial, and (2) that he caused another person to
bribe a New York City Police Officer who was about to be
called as a witness in connection with the case. The jury
indicated on the verdict form that it found Eisen had com-
mitted racketeering act 3 both by committing witness
bribery and mail fraud. Eisen does not allege any infir-
mity with the jury’s finding on the witness bribery aspect
of the Mulnick predicate.
A finding either of mail fraud or of witness bribery
would have been sufficient to support the Mulnick rack-
eteering act. Thus the invalidation of one of two sufficient
bases specifically found by the jury to support this pred-
icate would not undermine the jury’s finding that Eisen
committed a racketeering act with respect to the Mulnick
5 Officer William Mulligan testified at the Eisen trial that he wrote the
original police report of the Mulnick accident, which indicated that Kibel
had stated at the time of the accident that Mulnick was crossing the street
against the light. He further testified that he had been offered a bribe sev-
era] days before the Mulnick wial by Eisen firm investigator Frank Laine
to testify that he could not recall Kibel's statement. Laine, who testified
under a grant of immunity at the Eisen trial, admitted that he had indeed
attempted to bribe the officer and had done so at Eisen's request.
2la
case. Cf. Griffin v. United States, 112 S. Ct. 466, 469-74
(1991) (even a general verdict in a criminal case is to be
upheld on appeal against a claim of insufficient evidence
to support one of alternative bases for conviction when-
ever the evidence suffices for at least one basis). In light
of the fact that Eisen’s challenge does not compromise the
validity of the Mulnick predicate, and the ample evidence
that the Mulnick case was fraudulent and that Eisen par-
ticipated in the fraud, we have no doubt that the jury
would have convicted Eisen on the RICO substantive and
conspiracy charges even if it had found that the Mulnick
racketeering act rested only on bribery. Cf. Paccione, 949
F.2d at 1198 (jury would have convicted defendant of a
RICO violation even in the absence of an invalid predi-
cate).
B. The Pietrafesa Case—Racketeering Act Twenty-
Six
Morganti claims that there was insufficient evidence
that she committed mail fraud in connection with the
Pietrafesa case. That case arose from injuries sustained
by Carmella Pietrafesa when she slipped on a sidewalk
Outside a supermarket in Greenwich Village. The Eisen
firm sued the supermarket on behalf of Pietrafesa. The
Eisen firm relied on the testimony of Morganti’s 70-year-
old mother, Helen Gaimari, who lived four blocks from
the supermarket, to establish that the supermarket had
prior notice of the sidewalk defect. At trial, Gaimari tes-
tified that she gave Pietrafesa her name at the time of the
accident, had fallen because of the same defect months
before, and had previously complained to the supermar-
ket about the defect. It was not disclosed to defense coun-
sel in the Pietrafesa case that Gaimari was the mother of
Morganti, the Eisen firm’s office manager. The jury
22a
returned a verdict for Pietrafesa of approximately
$35,000.
Morganti argues that the Government adduced no affir-
mative evidence that Morganti caused her mother to tes-
tify, or that her mother, Helen Gaimari, testified falsely.
In evaluating this claim we must credit every inference
that can be drawn in the Government’s favor, whether
from direct or circumstantial evidence. See, e.g., United
States v. Parker, 903 F.2d 91, 96-97 (2d Cir.), cert.
denied, 111 S. Ct. 196 (1990). Moreover, the jury is free
to draw negative inferences from an untruthful witness’s
testimony as long as there is affirmative testimony to sup-
plement or corroborate those negative inferences. See
United States v. Marchand, 564 F.2d 983, 985-86, 1000-
01 (2d Cir. 1977), cert. denied, 434 U.S. 1015 (1978).
The Government points to the testimony of five wit-
nesses to support the inference that Morganti caused her
mother to testify and that the testimony was false. The
plaintiff, Carmella Pietrafesa, testified in a deposition pre-
ceding her personal injury trial that she had not gotten the
names of the people who helped her up at the time of her
accident. In contrast, she testified at her own trial and at
the Eisen trial that an elderly woman who turned out to be
Gaimari picked her up and gave her a piece of paper con-
taining Gaimari’s name and number. Pietrafesa also tes-
tified at the Eisen trial that during the course of trial
preparation she had had a few discussions with Morganti
concerning her case.
Frank DeSalvo, an Eisen firm attorney, testified about
his handling of the Pietrafesa case. He stated that he sent
out a letter to defense counsel on November 11, 1982,
Stating that there were no witnesses to Pietrafesa’s acci-
dent. DeSalvo testified that he represented Pietrafesa at
23a
the December 20, 1982, deposition in which she stated
that she did not get the name of the person who helped her
up. He further testified that he sent a second letter to
defense counsel in the Pietrafesa case three days after the
deposition that listed Helen Gaimari, Morganti’s mother,
as a notice witness to Pietrafesa’s accident. However,
even though DeSalvo had dated Morganti’s daughter and
had met Gaimari, he claimed to know the older woman
only as “Grandma Helen.”
Evan Torgan, another attorney formerly associated with
the Eisen firm, testified that Morganti and Eisen assigned
him the cases that he tried at the Eisen office, that he had
tried the Pietrafesa case in November 1984, and that it
was his practice to report trial verdicts to Morganti. He
further testified that he was dating Morganti’s daughter
around the end of 1984 or the beginning of 1985 but also
claimed that he did not learn that Gaimari was Morganti’s
mother until after the Pietrafesa trial ended.
Gaimari testified at the Eisen trial that sometime after
the accident, she was called by a lawyer who asked her to
testify at the Pietrafesa trial; the lawyer indicated that he
knew Gaimari was Morganti’s mother.
Robert Steindorf, a defense attorney at the Pietrafesa
trial, testified that Gaimari was a crucial witness against
his client because she was the only notice witness at that
trial who was not related to Pietrafesa.
Giving credence to every inference that could be drawn
in the Government’s favor from the direct and circum-
stantial evidence elicited from these witness, we find that
a reasonable juror could find that Gaimari gave false tes-
timony concerning her presence at the Pietrafesa accident.
We are, however, unable to conclude that a reasonable
juror could find, beyond a reasonable doubt, that Mor-
24a
ganti caused Gaimari to give false testimony in the
Pietrafesa case. The Government invites us to rely on
Morganti’s familial relation to Gaimari as well as Mor-
ganti’s role in the Eisen firm. While these factors may
indicate that Morganti had abundant opportunity to cause
Gaimari to give false testimony, they provide an insuffi-
cient basis for a reasonable juror to conclude beyond a
reasonable doubt that Morganti played a role in having
her mother testify falsely at the Pietrafesa trial. Although,
having persuaded the tury that Gaimari was untruthful, the
prosecutor might have invited the jury to disbelieve
Gaimari’s denials of her a..ughter’s invo!vement, without
affirmative evidence in coyrcber:s‘on, such a negative
inference is, by itself, insufficien., to support the convic-
tion. Marchand, 564 F.2d at 986. “A jury’s verdict will be
sustained if there is substantial evidence, taking the view
most favorable to the government, to support it.” United
States v. Mulheren, 938 F.2d 364, 368 (2d Cir. 1991) (cita-
tions omitted) (emphasis in original). In this case Mor-
ganti has met the very heavy burden of demonstrating that
the evidence at trial was insufficient to prove her guilt
beyond a reasonable doubt.
We must now determine whether the invalidation of this
racketeering act undermines Morganti’s substantive and
conspiracy RICO convictions. We conclude that the error
in submitting the invalid predicate to the jury was harm-
less beyond a reasonable doubt. See Paccione, 949 F.2d at
1198. Three valid racketeering acts remain, those relating
to the Miceli, Schwartz, and Stanton cases. In each of
these cases there was direct and unequivocal testimony
that Morganti was an active participant in the cabal to fal-
sify testimony. Furthermore, the pattern of verdicts
returned against co-defendants confirms our conclusion
that the jury would have returned the RICO convictions in
25a
the absence of the invalid predicate. Eisen, Gabe, and
Rella were convicted of the RICO counts on the basis of
a jury finding that they had each committed three racke-
teering acts. Morganti shares a pair of valid predicates in
common with those of Eisen and Rella: Morganti and
Eisen were both found guilty of the Schwartz and Stanton
predicates; Morganti and Rella were both found guilty of
the Miceli and Schwartz predicates. The acts alleged
against Morganti in the Miceli, Schwartz, and Stanton
predicates occurred, respectively, in 1983, in 1984, and
between 1984 and 1988, and thus the substantive RICO
conviction remains timely. The jury has already found that
these predicates relate to each other as well as to the
enterprise, and because we have no hesitancy in finding
that, even without the Pietrafesa predicate, these three
racketeering predicates posed a threat of continuity, we
affirm Morganti’s substantive and conspiracy RICO con-
victions. See United States v. Minicone, 960 F.2d 1099,
1106 (2d Cir.) (to establish pattern of racketeering, pros-
ecution must show racketeering predicates are horizon-
tally and vertically related, and that they amount to or
pose threat of continued criminal activity), cert. denied,
112 S. Ct. 1511 (1992).
III. Leak of Grand Jury Testimony
Eisen argues, on behalf of all defendants, that he is
entitled to a hearing on his claim that he was prejudiced
by a leak of grand jury testimony. Shortly before the trial
began, The Village Voice published an article about the
case. The author of the article purported to summarize the
contents of the testimony of four grand jury witnesses and
indicated that the source of the information was not the
witnesses themselves. In fact, the story indicated that one
of the witnesses whose testimony was outlined had
26a
refused to speak to the Voice about his grand jury appear-
ance. After the publication of the article, Eisen moved for
a hearing to determine whether grand jury secrecy had
been violated. Eisen claimed that a leak could prejudice
his trial because trial witnesses exposed to the article
could tailor their testimony to dovetail with the sworn tes-
timony of others. The District Court denied the request for
a hearing but referred the case to the Department of Jus-
tice (“DOJ”), requesting an expedited investigation.
After trial, almost seven months since the matter was
referred to DOJ and in spite of some prodding by Judge
Sifton, little if any progress had been made on the inves-
tigation, and Eisen renewed his request for a court hear-
ing. The Government was quick to ascertain the status of
the DOJ investigation and informed the Court that DOJ
investigators had formed a preliminary plan for investi-
gation and would soon begin to conduct interviews con-
cerning the matter. The District Court again rejected
Eisen’s request, stating that it had no obligation to super-
vise or instigate an investigation in the absence of a prima
facie showing of prejudice to the defendant as a conse-
quence of the alleged leak. The Judge noted that Eisen
had had opportunity and incentive to develop evidence of
“cross-pollination” among witnesses due to the alleged
leak but had failed to do so. The Court also noted its
reluctance to hold a hearing while there was an ongoing
federal investigation.
At oral argument of this appeal, the Government main-
tained that the DOJ investigation had concluded, that the
investigation had shed no light on whether or how the
integrity and secrecy of the grand jury proceeding had
been compromised, and that the results of the investiga-
tion had been forwarded to Eisen’s counsel. The Gov-
27a
ernment also represented to this Court that the results
would be forwarded to the District Court.
A breach of grand jury secrecy can jeopardize the
defendant’s right to a fair trial before a petit jury. See
United States v. Friedman, 854 F.2d 535, 583 (2d Cir.
1988), cert. denied, 490 U.S. 1004 (1989). However, a
defendant seeking reversal or a hearing regarding alleged
grand jury abuse must show prejudice or bias. See id. at
583-84 (in the absence of showing of prejudice, district
court’s refusal, without holding a hearing, to grant post-
trial relief for alleged grand jury leaks not error); see also
United States v. Helmsley, 866 F.2d 19, 22 (2d Cir. 1988)
(noting approval of district court procedure of referring to
Department of Justice charges of prosecutorial miscon-
duct in leak of grand jury testimony), cert. denied, 490
U.S. 1004 (1989).
Eisen contends that he has made a prima facie showing
of prejudice. He asserts that the tria! record indicated that
cross-pollination as a result of the grand jury leaks seem-
ingly had occurred in at least one instance: one witness’s
testimony in the grand jury about backdating a report, dis-
closed in the Voice article, was echoed in another wit-
ness’s trial testimony about the report, although that
witness had never mentioned any backdating at his grand
jury appearances. While this confluence of testimony may
be suspect, we agree with the District Court that the
defendants had the opportunity and incentive to develop
such possibilities of prejudice into evidence of prejudice
during the cross-examination of witnesses.
Eisen argues that it would have been “foolhardy” to
seek to establish evidence of cross-pollination during
cross-examination, that a defendant should not be
required to pursue an agenda distinct from his trial
28a
agenda, and that he should not be faulted for forgoing the
opportunity where he was led to believe that the DOJ was
making prompt inquiries. We disagree. If, on cross-exam-
ination a defendant had been able to expose that prose-
cution witnesses had changed their testimony in response
to the testimony of other witnesses, that fact would have
been devastating to the Government and entirely consis-
tent with the defendant’s “trial agenda.” Moreover, a
defendant’s interest in showing that the Government’s
case has profited from a breach of grand jury secrecy, is
distinct from the DOJ’s inquiry into whether a leak has
occurred and who was responsible. Referring the matter
to the DOJ did not absolve Eisen of the obligation to dis-
cover and come forward with some evidence of prejudice,
if any existed, in order to obtain a hearing or further relief
on the ground that grand jury secrecy had been violated.
The District Court did not err in denying a hearing.
IV. Testimony from Hostile Government Witnesses
Eisen argues that he was deprived of a fair trial because
the Government was permitted to call numerous witnesses
associated with the defendants and to elicit from them
trial testimony that the Government anticipated would be,
and argued to the jury that it was, perjurious. In its open-
ing, the prosecution told the jury that it would call some
witnesses “who have refused to give up the lie or the
fraud of the particular case that they were involved in.”
The Government made this argument with regard to a por-
tion of the testimony of 11 of its 75 witnesses. The Dis-
trict Judge allowed the practice, reasoning that it was not
unduly prejudicial because the witnesses’ testimony, in
fact, tended to exculpate the defendants, and because the
prosecutor confined himself to arguing that each witness
persisted in his lie from personal motives rather than at
29a
the behest of the defendants. Eisen argues that this evi-
dence should have been excluded because it was irrele-
vant, and even if it was relevant, Eisen argues, it should
have been excluded because the danger of unfair prejudice
substantially outweighed its probative value.
Eisen contends that the testimony from these witnesses
exculpating the defendants was not probative of the Gov-
ernment’s theory of the case and therefore should not have
been presented to the jury. The Government notes, how-
ever, that impeachment of hostile government witnesses
is admissible as negative inference evidence, see Marc-
hand, 564 F.2d at 985-86, and that the testimony of these
hostile witnesses provided other affirmative proof that
was important to the Government’s case.
In arguing that this practice should not have been per-
mitted, Eisen relies on two sets of cases that are Clearly
distinguishable. First, Eisen points to a series of cases that
hold that while a jury may be permitted to draw negative
inferences from disbelieved testimomy, a case cannot go
to a jury solely on that basis.* Second, Eisen relies on a
series of cases that hold that a party may not call a wit-
ness whose testimony it knows to be adverse for the sole
6 See Martin v. Citibank, NA., 762 F.2d 212, 217-18 (2d Cir. 1985);
United States v. Jenkins, 510 F.2d 495, 499 (2d Cir. 1975); Davis v.
National Mortgage Corp., 349 F.2d 175, 178 (2d Cir. 1965); Dyer v.
MacDougall, 201 F.2d 265, 269 (2d Cir. 1952); Pariso v. Towse, 45 F.2d
962, 964 (2d Cir. 1930).
In Dyer v. MacDougall, Judge Learned Hand observed that “the denial
of one, who has a motive to deny, may be uttered with such hesitation,
discomfort, arrogance or defiance, as to give assurance that he is fab-
ricating, and that, if he is, there is no alternative but to assume the truth
of what he denies.” 201 F.2d at 269. However, the Court went on to hold
that “although it is therefore true that in strict theory a party having the
affirmative might succeed in convincing a jury of the truth of his alle-
gations in spite of the fact that all the witnesses denied them, we think
it plain that a verdict would nevertheless have to be directed against
him.” /d.
30a
purpose of impeaching him and thereby presenting evi-
dence to the jury that would not otherwise be admissible.’
The first line of cases is inapposite because in this case
there was independent evidence to support the Govern-
ment’s case. The second line of cases is inapplicable
because the Government did not call these witnesses as a
mere subterfuge to get before the jury evidence not oth-
erwise admissible.
Federal Rule of Evidence 607 provides: “The credi-
bility of a witness may be attacked by any party, includ-
ing the party calling the witness.” Rule 607, having no
special restrictions, allows the Government to impeach its
own witnesses. United States v. DeLillo, 620 F.2d 939,
946-47 (2d Cir.), cert. denied, 449 U.S. 835 (1980).
Where the Government has called a witness whose cor-
roborating testimony is instrumental to constructing the
Government’s case, the Government has the right to ques-
tion the witness, and to attempt to impeach him, about
those aspects of his testimony that conflict with the Gov-
ernment’s account of the same events. /d. Here, the tes-
timony of the hostile witnesses provided affirmative proof
that was necessary to construct the Government’s case,
and thus the Government was entitled to question these
witnesses and to invite the jury to disbelieve that portion
of their accounts that contradicted the prosecution’s the-
ory of the case.
Eisen claims that, if the Government is allowed to pro-
ceed in this fashion, it could “routinely pre-empt the
defendant, offer his ‘defense,’ and effectively preclude
him from presenting his case as he and his lawyers deter-
mined to be in his best interests.” Brief for Appellant
Eisen at 31 n.34. Eisen complains that in eliciting testi-
7 See United States v. Moriang, 531 F.2d 183, 189-90 (4th Cir. 1975);
United States v. Johnson, 802 F.2d 1459, 1466 (D.C. Cir. 1986).
3la
mony exculpatory of the defendants, the Government, in
essence, foisted witnesses and testimony onto the defen-
dants’ case thereby curtailing their ability to shape their
own defense. Certainly, a defendant should be allowed to
present his best defense consistent with the bounds of the
law and the limits of the practicable. But the defendants
cannot blame the Government’s actions in this case for
frustrating their ability to put on such a defense. The Gov-
ernment called as witnesses those who had participated in
various ways in the personal injury suits underlying the
allegations in the indictment and who clearly had relevant
evidence to offer the Court. The Government need not
confine itself to fragments of their testimony just because
the witnesses persist in repeating untruthful portions.
A finding that the evidence was relevant and that the
practice at issue is not proscribed does not, however, end
the inquiry. Under Federal Rule of Evidence 403, the trial
judge must determine if relevant evidence should be
excluded because its “probative value is substantially out-
weighed by the danger of unfair prejudice.” United States
v. Robinson, 560 F.2d 507, 513-14 (2d Cir. 1977) (in
banc), cert. denied, 435 U.S. 905 (1978). We give the trial
judge wide discretion in assessing the balance, and his
ruling will not be overturned unless he acted “arbitrarily
or irrationally.” /d. at 515. Eisen does not argue that the
Government introduced highly prejudicial or inflamma-
tory evidence in order to impeach these witnesses; instead
he argues that, in the context of a case revolving around
the subornation of perjury, the very argument that the wilt-
nesses were lying was highly prejudicial. Eisen contends
that because the defendants are accused of suborning
these witnesses’ perjury (or conspiring with them to sub-
orn perjurious testimony) in the underlying personal
injury trials, the jury will naturally assume that the Gov-
32a
ernment accuses the defendants of complicity in these
criminal trial lies as well. The Court, however, had fore-
closed this line of argument and the prosecutor was care-
ful to attribute the alleged lies to the personal motivations
of these witnesses. The District Court acted reasonably in
concluding that the negative inference evidence need not
be excluded as unfairly prejudicial simply because of the
risk that the jury might, nonetheless, embrace a theory of
Causation eschewed by the prosecution.
V. Statute of Limitations
Gabe and Rella both contend that their convictions are
barred by the five-year statute of limitations period of 18
U.S.C. § 3282 (1988). Gabe argues that all of the racke-
teering acts with which he is charged fall outside the five-
year limitations period. In making this argument, Gabe
incorrectly assumes that the mail fraud claims date from
the time the fraud was conceived or from the time of the
underlying civil trial. However, the statute of limitations
in a mail fraud case runs from the date of the charged
mailing, notwithstanding that the defendant’s actions con-
cerning the scheme to defraud occurred before the statu-
tory period. See United States v. Read, 658 F.2d 1225,
1240 (7th Cir. 1981); United States v. Ashdown, 509 F.2d
793, 797-98 (Sth Cir.), cert. denied, 423 U.S. 829 (1975).
See also United States v. Weinberg, 656 F. Supp. 1020,
1026 (E.D.N.Y. 1987). Because at least one of the proven
mailings in the racketeering acts of which Gabe was
found guilty occurred within five years of the filing of the
original indictment, Gabe’s timeliness claim fails.
Rella argues that because the substantive RICO count
against him was dismissed as untimely, the RICO con-
spiracy count must fail as well. All three of the racke-
teering acts that the jury found Rella to have committed
33a
fall outside of the five-year limitations period, and thus
the substantive RICO count was properly dismissed.
However, the statute of limitations for a RICO conspiracy
does not begin to run until the objectives of the conspir-
acy have been either achieved or abandoned. United
States v. Persico, 832 F.2d 705, 713 (2d Cir. 1987), cert.
denied, 486 U.S. 1022 (1988). The jury found that the
RICO conspiracy comprehended conduct that occurred as
late as 1988, and because there was no evidence that the
criminal objectives of the conspiracy were abandoned,
this count against Rella was not time-barred.
VI. Ineffective Representation
Napoli appeals from Judge Sifton’s denial of his section
2255 petition for a new trial. In that petition, Napoli
claimed that his Sixth Amendment rights to effective
assistance of counsel had been violated as a result of an
alleged conflict of interest of his trial counsel, Gerald L.
Shargel. The alleged conflict of interest was said to arise
from Shargel’s disqualification in an unrelated case, see
United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991),
which occurred during the trial of this case. We affirm the
District Court’s denial of the petition.
Napoli argues that Shargel’s disqualification in the
Gotti case resulted in both a per se and an actual depri-
vation of Napoli’s Sixth Amendment right to effective
assistance of counsel in this case. In order to sustain a
Claim that a per se violation occurred, a defendant must
establish that his lawyer suffered from an actual conflict
of interest with regard to presenting a vigorous defense of
the defendant. See United States v. Aiello, 900 F.2d 528,
530-31 (2d Cir. 1990). Upon a showing of such a conflict,
a defendant need not demonstrate prejudice because a
conflict inhibiting a lawyer’s performance is such an
34a
affront to the right to effective assistance of counsel that
we have found that such a circumstance demonstrates a
denial of that right. Jd. We have found a per se Sixth
Amendment violation where trial counsel was implicated
in the very crime for which his client was on trial. See
United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984). We
also applied a per se rule where a defendant was repre-
sented by a person not authorized to practice law. See
Solina v. United States, 709 F.2d 160 (2d Cir. 1983). In
both cases, we found that counsel had reason to fear that
vigorous advocacy on behalf of his client might provoke
inquiries on the part of the court or prosecutor that might
expose the lawyer to criminal liability or other sanction.
See Cancilla, 725 F.2d at 870; Solina, 709 F.2d at 164.
However, this Court’s decision in Aiello, makes clear that
Napoli’s allegations fail to support a per se claim. In
Aiello, we rejected the argument that an attorney under
investigation for obstruction of justice and tax evasion at
the time of the defendant’s trial on narcotics charges had
suffered from an actual conflict of interest constituting a
per se violation of the defendant’s Sixth Amendment
right. The four factors on which this Court relied in
rejecting Aiello’s conflict of interest claim are also pre-
sent here. First, unlike the facts in Cancilla, the attorney's
purported activity (i.e., his alleged involvement with the
Gotti organization) was totally unrelated to the mail fraud
and witness bribery crimes for which Napoli was being
tried. See Aiello, 900 F.2d at 531. Second, there is no alle-
gation that Shargel’s representation of Napoli in the Eisen
case was the “impetus” for the investigation into Shargel’s
involvement with the Gotti defendants. See Aiello, 900
F.2d at 531-32. Third, Napoli has offered no basis upon
which to believe that Shargel’s defense of Napoli was
intended to please or impress the Gotti prosecutors, who
35a
did not participate in the Eisen case. See Aiello, 900 F.2d
at 532. Finally, unlike the attorney in Solina, there is no
question that Shargel was authorized to practice law at all
times during this case. See Aiello, 900 F.2d at 532.
There is no suggestion that Shargel’s vigorous repre-
sentation of Napoli would have subjected him to sanction
or risked exposure of any wrongdoing on his part. And
any claim that Shargel’s attention may have been
“diverted” by the disqualification proceeding in the Gotti
Case is insufficient to establish an actual conflict of inter-
est. A theoretical or merely speculative conflict of inter-
est will not invoke the per se rule. See Aiello, 900 F.2d at
532.
Because Napoli has failed to show an actual conflict of
interest, he must overcome the presumption that his coun-
sel’s conduct was reasonable by satisfying the two-
pronged standard of Strickland v. Washington, 466 U.S.
668 (1984). See United States v. Cruz, 785 F.2d 399, 405
(2d Cir. 1986). Napoli must show that (1) “counsel’s rep-
resentation fell below an objective standard of reason-
ableness” under “prevailing professional norms” and (2)
“a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 688, 694.
Out of a trial record of almost 10,000 pages, Napoli
culls five instances of alleged deficiencies in Shargel’s
performance. On review of the record, we are convinced
that Shargel’s overall performance was vigorous, sus-
tained, and effective. Furthermore, we find that none of
the five instances complained of falls “outside the wide
range of professionally competent assistance.” Jd. at 690.
Napoli first points to Shargel’s stipulation that a dis-
puted mailing in the Robbins case had been mailed.
36a
Shargel decided to stipulate to the fact of mailing once
informed that James LaRossa, co-defendant Eisen’s attor-
ney, had entered into a stipulation with the Government to
that effect. Napoli now claims that the author of the letter
would have testified that the letter had been hand-deliv-
ered and that it was incompetent for Shargel to stipulate
to the contrary. Napoli ignores evidence that the relevant
document had in fact been mailed—a subsequent letter
written by its author so stating. Moreover, even if Shargel
did not personally verify this fact, it was reasonable for
him to rely on the representation of co-defendant’s coun-
sel that the author admitted the mailing. Furthermore, had
the author been called to take the stand to testify to hand
delivery, his testimony would have been impeached by his
previous letter maintaining that it had been mailed. See
Aiello, 900 F.2d at 532-33 (failure to call exculpatory wit-
ness not ineffective representation because testimony
could have been impeached).
The next four instances of claimed ineffective assis-
tance relate to decisions that “fall squarely within the
ambit of trial strategy, and, if reasonably made,” cannot
support an ineffective assistance claim. See United States
v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied,
484 U.S. 957 (1987). As his second example, Napoli
Claims that Shargel should have advised him to testify on
his own behalf, and that Shargel should have done a more
thorough job of impeaching two prosecution witnesses.
“The decision whether to call any witnesses on behalf of
the defendant, and if so which witnesses to call, is a tac-
tical decision of the sort engaged in by defense attorneys
in almost every trial.” /d. It was a reasonable tactical
decision to rely exclusively on attacking the Govern-
ment’s witnesses and presenting independent testimony
rather than to subject Napoli to all of the risk attendant on
37a
cross-examination. “Decisions whether to engage in
cross-examination, and if so to what extent and in what
manner, are similarly strategic in nature.” /d. Shargel had
subjected both of these witnesses to vigorous cross-exam-
ination. As Judge Sifton found, Shargel could have rea-
sonably concluded that further cross-examination on
relatively unimportant matters would have confused or
fatigued the jury.
As the third instance, Napoli points to Shargel’s deci-
sion not to lay blame for the charged crimes on the other
defendants. Clearly this was a reasonable strategic deci-
sion. An effort to blame the other defendants might have
provoked retaliation in the same vein, and the Govern-
ment would have been the sole beneficiary of such a
development.
Fourth, Napoli claims that, in support of Napoli’s
motion for sequestration of the jury, Shargel should have
introduced newspaper clippings referring to the Govern-
ment’s accusations against Shargel in the Gotti case.
While this might have been the preferable course, we can-
not say that Shargel’s omission was below an objective
level of competence since none of the other defense attor-
neys included such clippings in their similar motions but
instead relied on paraphrasing. Furthermore, Shargel did
submit a number of the press accounts in support of
Napoli’s claim of error in failure to sequester made in his
motion for a new trial. The issue, including the nature and
content of the articles, was thus properly preserved for
appeal, and no prejudice occurred from the initial failure
to include the materials.
Finally, Napoli claims that Shargel’s failure to attack
the Government in his summation is evidence of a change
in his attitude toward the Government following the dis-
38a
qualification motion. Shargel’s summation lasted an entire
day and occupies almost two hundred pages of transcript.
Shargel assailed the Government’s evidence in each of the
racketeering acts charged against Napoli and reviewed the
exculpatory testimony. Furthermore, he clearly was not
seeking to curry favor with the prosecution when he
claimed that the Government “paid their witnesses with a
price that we could never afford,” had intentionally over-
looked its own witnesses’ inconsistent statements, and
had been overly “righteous and sanctimonious” in dis-
crediting exculpatory testimony. The comprehensive and
vehement nature of Shargel’s summation refutes Napoli’s
claim. See Nersesian, 824 F.2d at 1321.
In none of the five instances complained of did
Shargel’s performance fall below an objective standard of
reasonableness, and Napoli does not even attempt to
demonstrate a reasonable probability that the result of the
proceeding would have been different absent the allegedly
unprofessional conduct.
VII. Prosecutorial Misconduct and Prejudicial Publicity
Regarding the Gotti Case
On Friday, February 22, 1991, after the jury in the
Eisen trial had begun deliberations, argument was heard
on an application by the prosecution in the Gotti case to
disqualify several of the defense lawyers in that case
including Shargel, who was then representing Napoli in
the Eisen trial. Napoli contends that the prosecutors in the
Gotti case acted improperly by repeating in open court
allegations made against Shargel in the Government’s
sealed papers, and that these allegations improperly
affected the jury’s deliberations in the Eisen case. Napoli
also argues that the Court improperly denied his motion to
sequester the jury.
39a
“If a prosecutor abuses her discretion by intentionally
attempting to distort the fact-finding process, then a due
process violation exists.” United States v. Angiulo, 897
F.2d 1169, 1191 (1st Cir.), cert. denied, 111 S. Ct. 130
(1990). But Napoli does not claim that the Government
prosecutors in the Gotti case intentionally provoked press
coverage with the aim of prejudicing the jury in the Eisen
case, nor does he offer any evidence that the Gotti pros-
ecutors even anticipated such a result. Moreover, the Dis-
trict Court took suitable precautions to ensure that the
jury was not exposed to the press accounts of the allega-
tions.
When the problem was brought to Judge Sifton’s atten-
tion on the Friday of the hearing in the Gotti case, the
Judge determined that he would speak with each juror
individually in chambers about avoiding all news media
over the weekend. Defense counsel objected to individual
interviews, arguing that it would magnify the problem,
and instead requested sequestration. The Judge denied
sequestration, but conducted a general inquiry of the jury,
asking the jury to avoid all news media over the weekend
and providing a means by which concerned jurors could
call the Court to ascertain the progress of then pending
events in the Persian Gulf without resort to the media.
The jurors gave their general agreement that they could
comply.
The steps taken to protect the integrity of the jury delib-
erations were adequate under the circumstances. In United
States v. Casamento, 887 F.2d 1141, 1154-55 (2d Cir.
1989), cert. denied, 493 U.S. 1081 (1990), this Court
found that the “great deal” of media attention surrounding
an organized crime trial did not render it unfair in light of
Judge Leval’s instruction to the jury to avoid press
accounts about the case. We held that “[iJn the absence of
40a
evidence to the contrary, we will presume the jury fol-
lowed these admonitions and avoided exposure to news
reports about the trial.” /d. Although Judge Leval con-
ducted an individual interview with the jurors, the defen-
dants here specifically requested that no such individual
voir dire be conducted for fear of magnifying the prob-
lem. See also United States v. Gaggi, 811 F.2d 47, 53 (2d
Cir.), cert. denied, 482 U.S. 929 (1987).
Moreover, as in Gaggi, we may find confirmation of the
jury’s ability to render an impartial verdict in “the care
which it took in its deliberations.” 811 F.2d at 53. As the
District Court noted in rejecting these claims post-trial,
jury deliberations lasted from February 14 through March
4, 1991, with several notes sent out each day requesting to
review exhibits or to have extensive testimony read back.
And in its determination, the jury carefully distinguished
among defendants and among predicate acts, finding 16 of
22 racketeering acts proven.
In the absence of any suggestion that the prosecutors in
the Gotti case were acting in bad faith, in light of the fact
that the allegations did not concern the trial in this case,
the defendants on trial, or any of the events at issue in the
case, and giving due weight to the district court’s cau-
tionary measures, we find no due process violation and
reject Napoli’s request for a new trial.
Furthermore, Napoli’s claim that the District Court
erred in denying his motion to sequester the jury in
response to the Gotti proceedings is without merit. “The
decision to sequester the jury to avoid exposure to pub-
licity is committed to the discretion of the court, and fail-
ure to sequester the jury can rarely be grounds for
reversal.” United States v. Salerno, 868 F.2d 524, 540 (2d
Cir.), cert. denied, 491 U.S. 907 (1989). Judge Sifton did
4la
not abuse his discretion and his precautions seem entirely
adequate to the remote threat of prejudice from the
expected publicity concerning Napoli’s attorney and his
representation of another client in a completely unrelated
matter.
VIII. Sentencing
Fishman, Napoli, Gabe, and Rella contend that the Dis-
trict Court erred in applying the Sentencing Guidelines in
sentencing them on the RICO conspiracy count. Each of
these defendants asserts that, for various reasons, his lia-
bility for participation in the conspiracy cannot extend
past November 1, 1987, the effective date of the Guide-
lines. We conclude that the District Court correctly
applied the Sentencing Guidelines to each of these defen-
dants.
This Court has determined that persons convicted of
offenses that began before and continued after November
1, 1987, (so called “straddle crimes”) would, upon sen-
tencing, be subject to the Sentencing Guidelines. See
United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989).
The RICO conspiracy charged in this case ran from Jan-
uary 1981 to June 1990, and thus straddled the effective
date of the guidelines. Moreover, the jury found three
defendants—Eisen, Gabe, and Morganti—guilty of a
predicate act of mail fraud in connection with the Stanton
case, which included a mailing on March 29, 1988. Thus,
the conspiracy of which the defendants were convicted
continued after the effective date of the guidelines.
Gabe complains that the jury was not asked to deter-
mine whether the conspiracy straddled the effective date
of the Guidelines. However, for purposes of applying the
Guidelines, “the period during which an offense occurs 1s
42a
considered a ‘sentencing factor’ to be determined by a
judge—instead of an element of the offense to be deter-
mined by a jury.” United States v. Bloom, 945 F.2d 14, 17
(2d Cir. 1991). The District Court did not err in finding by
a preponderance of the evidence that the conspiracy
extended beyond November 1, 1987. Gabe also argues
that he should not have been sentenced under the Guide-
lines because he played a “minimal role” in the conspir-
acy. The extent of Gabe’s role, while relevant in
determining the appropriate length of his sentence within
the Guidelines, see U.S.S.G. § 3B1.2 (Guideline adjust-
ments for mitigating role in the offense), has no bearing
on the threshold question of whether the Guidelines
should apply to his conspiracy conviction.
Napoli argues that application of the Guidelines to his
conviction violates ex post facto principles because he
“did nothing after November 1, 1987 and did not plan
anything which ultimately transpired after that date.”
Brief for Appellant Napoli at 140. The Court may find a
continuation of conspiratorial liability even though the
particular defendant has ceased to engage in overt conduct
relating to the conspiracy prior to November 1, 1987, if it
was foreseeable that the conspiracy would continue past
that date. See, e.g., United States v. Devine, 934 F.2d
1325, 1332 (Sth Cir.), cert. denied, 112 S. Ct. 349 (1991).
This holding derives from the basic principle that con-
spirators are generally held liable for the known or rea-
sonably foreseeable acts of all other co-conspirators
committed in furtherance of the conspiracy. See Pinker-
ton v. United States, 328 U.S. 640, 647 (1946). Contrary
to Napoli’s contention, the acts of co-conspirators occur-
ring after November 1, 1987, may be attributable to a
defendant for purposes of the application of the Sen-
tencing Guidelines in the absence of evidence that the
43a
defendant somehow “caused” those acts. See United
States v. Rosa, 891 F.2d 1063, 1068-69 (3d Cir. 1989)
(applying Guidelines to co-conspirator who did nothing to
further the conspiracy after 1986 in the absence of any
proof that he affirmatively renounced the conspiracy prior
to November 1, 1987). Defendants committing no acts in
furtherance of a conspiracy after the effective date of the
Guidelines are not subject to ex post facto punishment
because they could have “taken steps to prevent the final
element of the crime from occurring,” United States v.
Alkins, 925 F.2d 541, 549 (2d Cir. 1991), before the
statute became effective; they could have withdrawn from
the conspiracy. See Rosa, 891 F.2d at 1069. Napoli does
not claim that he ever withdrew from the conspiracy.
Rella and Fishman contend that they affirmatively with-
drew from the conspiracy before the effective date of the
Guidelines. In order to demonstrate withdrawal from a
conspiracy, the defendant has the burden of proving
“some act that affirmatively established that he disavowed
his criminal association with the conspiracy . . . and
that he communicated his withdrawal to the co-conspir-
ators.” United States v. Minicone, 960 F.2d at 1108 (2d
Cir. 1992) (citations omitted). “[MJere cessation of con-
spiratorial activity is not enough” to satisfy this standard.
United States v. Nerlinger, 862 F.2d 967, 974 (2d Cir.
1988).
Rella contends that he withdrew from the conspiracy
when he left the firm as its “in-house” investigator in
1984. However, Rella continued to work for the firm on
an ad hoc basis thereafter. The parties’ stipulation that
there was no showing that any of the work performed by
Rella after 1984 was tainted by illegality does not alter
the significance of Rella’s continued association with the
Eisen firm. The District Court correctly found that the
ES
44a
stipulation established, at most, Rella’s “mere cessation”
of illegal conduct, which was insufficient to prove his
withdrawal from the conspiracy. /d. at 974.
Fishman contends that he affirmatively withdrew from
the conspiracy before the effective date of the Guidelines
by resigning his position at the Eisen firm in order to
practice with another, independent law firm. Fishman
relies on this Court’s decision in Nerlinger, in which the
defendant participated in a conspiracy to defraud the cus-
tomers of a brokerage firm. The defendant’s role in the
conspiracy was to open and maintain a bogus account
with the firm for the purpose of diverting profits fraudu-
lently obtained by his co-conspirators. Jd. We ruled that
the defendant had withdrawn from the conspiracy before
the conspiracy’s termination by resigning from the bro-
kerage firm and closing the account, reasoning that by
doing so the defendant had foreclosed the possibility of
further participation in the conspiracy and relinquished
any claim to subsequent profits. Jd. at 974-75. However,
in this case the District Court found that there was evi-
dence that, after leaving the law firm, Fishman “continued
to be entitled to a percentage of the recovery on all cases
he tried including those giving rise to his pre-1985 rack-
eteering acts.”
Fishman argues that he received an annualized salary
from the Eisen firm and was not entitled to a percentage
of the recovery of the cases he tried. Stephen Dijoseph, a
cooperating co-defendant, testified that Fishman had told
him that he was getting “a piece of the action on the cases
he tried.” Fishman faults the District Court for denying
his request for a hearing on this disputed sentencing fac-
tor. However, the District Court has broad discretion to
determine the procedure by which it will resolve disputed
issues at sentencing, so long as it affords the defendant
45a
some opportunity to rebut the Government's allegations.
See United States v. Prescott, 920 F.2d 139, 143-44 (2d
Cir. 1990). The District Court did not abuse its discretion
in denying the hearing and was not clearly erroneous in
concluding that Fishman failed to satisfy his burden of
proving withdrawal from the conspiracy.®
Conclusion
We have considered appellants’ other arguments and
find them to be without merit. The judgments of convic-
tion appealed from are all affirmed.
8 The District Court also relied on another episode in determining that
Fishman had not withdrawn from the conspiracy. The District Court
found that in February 1988, Fishman, together with defendant Wein-
stein, sought to convince DiJoseph to lie to investigators in order to con-
ceal his role in the Schwartz fraud. Fishman argues that such an effort
constituted a later agreement between himself and Weinstein to conceal
an earlier conspiracy and not a continuation in, or rejoining of, the orig-
inal conspiracy. Post-conspiracy acts of concealment do not, without
more, extend the life of the conspiracy after its main objective has been
attained. See Grunewald v. United States, 353 U.S. 391, 399-402 (1957);
Krulewitch v. United States, 336 U.S. 440, 442-44 (1949). Fishman,
however, does not dispute that the original conspiracy was ongoing in
February 1988, when he made the statements in question. Because the
District Court found that Fishman did not effectively withdraw from the
conspiracy when he resigned from the Eisen firm, Fishman was still a
member of the conspiracy at the time of these efforts, and, clearly, acts
or statements designed to conceal an ongoing conspiracy are in fur-
therance.of that conspiracy. See United States v. Beech-Nut Nutrition
Corp., 871 F.2d 1181, 1199 (2d Cir.), cert. denied, 493 U.S. 933 (1989).
46a
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated term 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 20th day of October one thousand nine
hundred and ninety-two.
UNITED STATES OF AMERICA,
Appellee, DOCKET
V NUMBER:
LEONARD KAGEL, 91-1549(L)
Defendant, 91-1551,
MORRIS J. EISEN; JOSEPH P. NAPOLI; 91-1553,
HAROLD M. FISHMAN; DENNIS RELLA; 91-1554,
MARTY GABE: GERALDINE G. 91-1655,
MORGANTI; ALAN WEINSTEIN 91-1633,
Defendants-Appellants 92-1032,
A petition for rehearing containing a suggestion that the ac-
tion be reheard in banc having been filed here in by counsels
for Defendant-Appellants Morris J. Eisen, Joseph P. Napoli,
Marty Gabe, Dennis Rella, and Geraldine G. Morganti.
Upon consideration by the panel that decided the appeal, it is
Ordered that said petitions for rehearing are DENIED.
It is further noted that the suggestions for rehearing in banc
have been transmitted to the judges of the court in regular ac-
tive service and to any other judge that heard the appeal and
that no such judge has requested that a vote be taken thereon.
ELAINE B. GOLDSMITH,
Clerk
47a
United States Court of Appeals
FOR THE SECOND CIRCUIT
Second Circuit Rule 27(a) governing
use of this form is reprinted on reverse of
Page 2 Note requirement that supporting
affidavits be attached
United States of America
Appellee,
— against —
Morris J. Eisen, et al.
Defendant-Appellant.
91-1549(L)
Docket Number
NOTICE OF MOTION
state type of motion
for Permission to submit supplemental
letter in support of Petition for Rehearing.
MOTION BY: (Name, address and (el. no. of law firm and of at-
torney in charge of case)
John W. Mitchell, Esq.
LaRossa, Mitchell & Ross
41 Madison Avenue
New York, New York 10010
(212) 696-9700
Has consent of opposing counsel:
A. been sought? x) Yes OJ No
B. been obtained? &) Yes L) No
Has service been effected? &X) Yes CL) No
Is oral argument desired? CL) Yes 0 No
(Substantive motions only)
48a
Requested return date:
(See Second Circuit Rule 27(b))
Has argument date of appeal been set: N/A
A. by scheduling order? CL) Yes L] No
B. by firm date of argument notice? L) Yes CL] No
C. If Yes, enter date:
Judge or agency whose order is being appealed.
OPPOSING COUNSEL: (Name, address and tel. no. of law firm
and of attorney in charge of case)
A.U.S.A. Faith E. Gay
United States Attorneys Office
Eastern District of New York
225 Cadman Plaza East
Brooklyn, N.Y. 11201
(718) 330-7896
EMERGENCY MOTIONS, MOTIONS FOR STAYS & INJUNC-
TIONS PENDING APPEAL
Has request for relief been made below? (©) Yes & No
(See ER.A.P Rule 8)
Would expedited appeal eliminate need
for this motion? (} Yes & No
If No, explain why not:
N/A
Will the parties agree to maintain the
status quo until the motion is heard? kl Yes 0) No
Brief statement of the relief requested: For an Order, pursuant
to Rules 41 and 9(b) of the Fed.R.App.Pro., staying the issuance
of the mandate pending determination of defendant’s Petition
for a Writ of Certiorari and for bail.
49a
Complete Page 2 of This Form
By: (Signature of Attorney)
Signed name must be printed beneath
JOHN W. MITCHELL, ESQ.
Appearing for: (Name of Party)
Morris J. Eisen Appellant or Petitioner:
© Plaintiff & Defendant
Appellee or Respondent:
© Plaintiff (OO Defendant
October 27, 1992
Date
ORDER
Kindly leave this space blank
IT IS HEREBY ORDERED that the motion be and it hereby is
granted denied
10/30/92
Date Circuit Judge
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.