Petition for Writ of Certiorari — Eisen v. United States
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Bupreme Court, US,
IN THE
Siuprene Court of the United States
October Term, 1992
GERALDINE G. MORGANTI AND DENNIS RELLA,
Petitioners,
against
UNITED STATES OF AMERICA.
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
RICHARD E. MISCHEL, P.C.
Attorney for Petitioners
Geraldine G. Morganti and Dennis Rella
225 Broadway, Suite 2199
New York, New York 10007
(212) 227-7040
RICHARD E. MISCHEL
Of Counsel
SE SEES SN Se ae ee ee
TABLE OF CONTENTS
PAGE
Questions Presented. ...... i
LSOG OF POPEAGRs « 6 « « « oo a BS
Table of Authorities ..... .ilii
Opimign BOLGOW. « «© «© ow sw we we CU
Jurisdictional Statement .... 5
Constitutional Provision
Beene 4.4 as 4 eee Ss ee 5
Statement of the Case. .... . 6
Reasons For Granting The Writ. . 13
CORGIUESOE. « «2 3 a 6 s+ 6 6 ee Be
APPENDIX
Opinion of the United States
Court of Appeals For The
Seconm@ Circuit .. «s+ s « 38
Order dated October 20, 1992,
Denying Petition for Rehearing
with Suggestion For Rehearing
In BA€NnC . « «© © © © @ @ ew @ te ew] | C64
|
QUESTIONS PRESENTED
l. Whether the Second Circuit Court
of Appeals and 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
miscontrued the provision of RICO requiring
state predicates to "be chargeable under
state law" (18 U.S.C. § 1961[1][A]).
2. Whether the RICO statute is
unconstitutionally vague both on its face
and as applied.
3. Whether the exclusion of perjury
from the definition of Rackteering Activity
set forth in 18 U.S.C. § 1961(1)(A) permits
the use of a violation of the federal mail
fraud statute as a predicate act for what
was a state court perjury.
LIST OF PARTIES
In addition to Petitioners Geraldine
G. Morganti and Dennis Rella, 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 Morris J. Eisen, Joseph P.
Napoli, Harold M. Fishman, Marty Gabe, and
Alan Weinstein, appellants and the
Respondent, United States of America.
ii
TABLE OF AUTHORITIES
FEDERAL CASES
United States v. Eisen,
974 F.2d 246 (2d Cir. 1992)
United States v. Nardello,
393 U.S. 286 (1969).
STATE CASES
People v. Berger, 52 N.Y.2d 214,
437 N.¥.6.24@ 272, 418 N.E.2cd
1291 [1981] — +e. +s +e © 4
People v. Hudson, 51 N.Y.2d 233,
433 N.Y.S.2d 1004, 414 N.E.2da
SUS £iSG0) «6 «© eS © ew
People v. Leon, 121A.D.2da 1,
509 N.Y.S.2d 1 [lst Dept.
1986], app. denied 69 N.Y.2d
830, 513 N.¥.3.2G@ 1037, 506
N.E.2a 548, N.Y.Crim.Pro.L.
§ 60.22 +. & 6 6 » cece
Matter of DiJoseph, 174 A.D.2d
78, 578 N.Y.S.2d 832 [1992]
People v. Sweet, 78 N.Y.2d 263,
573 N.Y¥.S.2d 438, 577 N.E.2da
1030 ([1991}) . .« « « «© «© « »«
People v. Velasquez, 151 A.D.2d
159, 547 N.Y.S.2da 6 [lst Dept.
1989], aff'd, 76 N.Y.2d 905,
561 N.Y.S.2d 911, 563 N.E.2d
Deer eeeee 5 5 se eee 8
iii
15,
16
15
18
18
16
TABLE OF AUTHORITIES (Cont'd)
PAGE
FEDERAL STATUTES
18 U.S.C. §1341 . «2 2© «© @ @ 6
18 U.S.C. §1961 .. «2 « « « i0, i3
18, 20
A@ Vetoes BAPGR ¢. © 6s 8 4 * 3
28 U.S.C. §1254 "etx ue Oe ves gt >
STATE STATUTES
N.Y. Penal Law §§ 200.00 and
Si45300 «© «+ © © & © *&© 6 © eu * 6, 26
N.Y. Penal Law §200.00. ... . 14
N.Y. Penal Law §215.00.
N.Y. Penal Law §20.00 ..... 14
N.¥.Crim.Pro.L. §60.22 .. <« « io, se
N.¥.€rim. Pro... $190.65 . . « » a7, a9
N.Y. Crim. Pro... $70.30 « « « « 17
MISCELLANEOUS AUTHORITIES
Practice Commentaries,
Mck. Consol. Laws of N.Y.,
11A, Crim.Pro.L., §60.22
[weet i992} ++ «© © © & © *® 15
iv
No.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1992
GERALDINE G. MORGANTI AND DENNIS
RELLA,
Petitioners,
- against -
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
Petitioners Geraldine G. Morganti and
Dennis Rella respectfully pray that a Writ
of Certiorari be issued to review the Order
of the United States Court of Appeals for
the Second Circuit, entered on August 17,
1992, which affirmed the judgment of the
United States District Court, Eastern
District of New York (Sifton, J.), entered
on September 4, 1991
OPINION BELOW
The opinion of the Court of Appeals is
reported at 974 F.2d 246 and appears in the
Appendix as la-45a. The Court of Appeals
in its August 17th Order affirmed the
judgment of the United States District
Court, Eastern District of New York,
convicting Petitioner Morganti of violating
the anti-racketeering statute of (18 U.S.C.
§1962[c]) and conspiring to violate that
statute (18 U.S.C. §1962[d]), and
Petitioner Dennis Rella of conspiring to
violate the anti-racketeering statute (18
U.S.C. § 1962[d]}), upon a jury verdict, and
sentencing them, in accordance with the
Federal Sentencing Guidelines, to terms of
imprisonment of thirty-seven months
(Petitioner Morganti) and twenty-four
months (Petitioner Rella).
The Order of the Court of Appeals,
dated October 20, 1992, denying the
petition for rehearing and noting that no
- 3-
judges of the court requested a vote on the
suggestion for rehearing in banc, appears
in the Appendix as 46a.
JURISDICTION
The jurisdiction of this Court is
invoked under 28 U.S.C. §1254. The Order
of the Court of Appeals sought to be
reviewed was filed on August 17, 1992. The
Petition for rehearing, with a suggestion
for rehearing in banc, was denied by Order
of the Court of Appeals, dated October 20,
1992. This Petition for a Writ of
Certiorari is filed within the time
prescribed by U. S. Sup. Ct. Rule 13, 28
U.S.C.A.
CONSTITUTIONAL PROVISION INVOLVED
Fifth Amendment:
"No person shall *** be deprived
of life, liberty, or property,
without due process of law."
STATEMENT OF THE CASE
Petitioners Geraldine M. Morganti and
Dennis Rella, and five others were accused
by a Grand Jury, sitting in the Eastern
District of New York, of violating the
federal anti-racketeering statute (18
U.8.C. §1962 (c]), and conspiring to
violate the anti-racketeering statute (18
U.S.C. 1962 [d]), alleging in twenty-six
acts of racketeering the commission of mail
fraud (18 U.S.C. §1341) and bribery (N.Y.
Penal Law §§ 200.00 and 215.00) in
connection with the representation of
plaintiffs in personal injury actions by
persons employed by or affiliated with the
Morris .e Eisen, Py... law firm.
Specifically, Petitioners were named in six
racketeering acts, each.’
Also named as _ co-defendants/co-
conspirators in the indictment were
attorneys Morris J. Eisen, Joseph P.
Napoli and Harold Fishman;
investigators Alan Weinstein and Martin
(continued...)
Petitioners and their five co-
defendants/co-conspirators pleaded not
guilty to the charges and, on November 4,
1990, proceeded to trial before’ Hon.
Charles P. Sifton, U.S.D.J., and a jury.
The trial continued until March 4, 1991,
when the jury after deliberating for three
weeks found, inter alia, that Petitioner
Morganti had committed four of six
racketeering acts alleged in the
indictment, that Petitioner Rella had
committed three racketeering acts, and
therefore were guilty of racketeering and
conspiracy. The court set aside the jury's
verdict finding Petitioner Rella guilty of
RICO on the ground that none of the
'(...continued)
Gabe. Petitioner Morganti was named in
the indictment as office administrator
of the Eisen firm; Petitioner Rella was
an investigator performing
investigatives services for the Eisen
firm.
Petitions for a Writ of Certiorari
have also been filed by Morris J. Eisen
and Joseph P. Napoli.
- 7 «
|
predicate acts he was found to have
committed fell within the statute of
limitations.
The government's case against
Petitioners, and their five co-defendants,
rested primarily on the testimony of
numerous witnesses who had _ negotiated
generous cooperation agreements with the
United States Attorney's Office, as well as
with local (county) prosecutors, in return
for their immunized testimony.
Particularly important to the government's
case was the testimony of Steven DiJoseph,
the managing attorney at the Eisen firm
from February 1983, until October 18, 1984
(T864-72, 1075-80, 5389). As a key
government witness, DiJoseph testified
about many of the racketeering acts set
forth in the indictment, admitting that he
was the architect of many of the frauds
charged, that he committed crimes’ too
numerous to catalogue, and that he violated
- 8 =
his oath as attorney on a daily basis.’
Indeed, during his testimony, DiJoseph
volunteered that he "[hjad no ethics" while
he was managing attorney at the Eisen firm
(T1282), and that he hated two of the Eisen
defendants he was testifying against,
namely: Petitioner Morganti and co-
defendant Napoli (T1528).
. In its opinion, per curiam,
accepting Steven DiJoseph’s resignation
from the New York Bar, the Appellate
Division of the Supreme Court of New
York, First Department, said that, “”In
November, 1990, while under no
indictment, [DiJoseph] voluntarily
testified in Federal Court under a
grant of immunity at the racketeering
and conspiracy trial of Morris Eisen,
Esq., and other member of his firm.
During the course of that trial
{DiJoseph]} admitted to misconduct
involving fabrication of evidence,
forgery and perjury in a_ significant
number of judicial proceedings.
[DiJoseph] acknowledges that if charges
were predicated upon the _ foregoing
misconduct under investigation, he
could not successfully defend himself
on the merits against such charges”
(Matter of DiJoseph, 174 A.D.2d 78, 79,
578 N.Y.S.2d 832 [1992]).
- 9 =
In essence the theory of the
prosecution against Petitioner was that, as
co-defendant Morris Eisen's trusted office
manager, she assisted others in suborning
perjury of witnesses, including family
members, bribing witnesses, and committing
mail fraud in connection with six personal
injury actions in which the Eisen firm was
representing the plaintiffs. With regard
to Petitioner Rella, the government
theorized that he committed the same
generic crimes in providing investigative
services to the Eisen firm to facilitate
the successful prosecution of personal
injury actions.
On Appeal to the Second Circuit Court
of Appeals, Petitioners contended, inte
alia, that the phrase in 18 U.S.C. §
1961(1)(A), “chargeable under state law"
required the incorporation of the elements
of state offenses within federal RICO
prosecutions and any relevant state
- 10 -
}
defenses. Specifically, because state law
required corroboration of accomplice
testimony and because without it a state
prosecution would be legally insufficient,
corroboration of state law offenses, relied
upon as predicates in a RICO prosecution,
should be required as part of the
government's case.
By Order dated August 17, 1992, the
Second Circuit affirmed the Petitioner's
convictions, notwithstanding the court's
agreement with Petitioner Morganti that at
least as to one of the racketeering acts
she was found by the jury to have
committed, the evidence was legally
insufficient.
Thereafter, petitions were submitted
for rehearing with a_ suggestion for
rehearing in banc. On October 20, 1992
(46a), the petitions were denied, it being
noted that no judge of the court requested
See
a vote on the suggestion for rehearing in
banc.
REASONS FOR GRANTING THE WRIT
I.
THE SECOND CIRCUIT COURT OF
APPEALS -- AND VARIOUS OTHER
CIRCUIT COURTS OF APPEALS -- HAVE
APPLIED THE RICO S8TATUTE IN A
MANNER WHICH CONFLICTS WITH THE
DECISION OF THIS COURT IN UNITED
STATES V. NARDELLO PERMITS THE
’NON-INCORPORATION’ OF THE
ELEMENTS OF STATE OFFENSES WHICH
SERVE AS PREDICATES FOR FEDERAL
PROSECUTIONS UNDER THE TRAVEL ACT
AND/OR RICO.
In his Petition for a Writ of
Certiorari, Point One, 14-45, Petitioner
Morris J. Eisen raised concerning the issue
of whether, pursuant to 18 U.S.C.
§1961(1)(A), the phrase "chargeable under
state law," requires the "incorporation" of
the elements of state offenses relied upon
in federal RICO prosecutions to establish a
pattern of racketeering activity and any
relevant defenses to those offenses
permitted under state law. Petitioners
Geraldine G. Morganti and Dennis Rella
adopt and join in the arguments made by
- 13 -
Petitioner Eisen in Point One of his
Petition, adding the following comments.
At the trial, defense counsel argued
that with respect to the RICO racketeering
acts charging violations of New York State
law viz: N.Y. Penal Law §§ 200.00, 215.00,
and 20.00, that the government be required
to corroborate the testimony of accomplice
witnesses who were used to prove these
crimes, since this would have been required
if the case were prosecuted on the state
level. The court was also asked to charge
the jury that to be found guilty the
accomplice testimony pertaining to state
crime predicates had to be corroborated by
independent evidence. The court declined
to give the requested charge.
The argument was made before the trial
court and before the United States Court of
Appeals that under New York law a crime is
not "chargeable" unless the testimony of an
accomplice witness is corroborated. This
- 14 =-
issue was again raised in connection with
the Petition for rehearing with a
suggestion for rehearing in banc.
The New York accomplice corroboration
rule is not a mere formalism (see People v.
Leon, 121 A.D.2d 1, 5-6, 509 N.Y.S.2d 1
[lst Dept. 1986], app. denied 69 N.Y.2d
830, 513 N.Y.S.2d 1037, 506 N.E.2d 548
[1987]). N.Y. Crim. Pro. L. § 60.22 in
relevant part provides that,
"1. 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."
Rather than limiting the class of persons
who qualify as accomplices under New York
law, the legislature broadened the common
law definition by the inclusion of
subdivisions two and three to section 60.22
(People v. Berger, 52 N.Y.2d 214, 219, 437
N.Y.S.2d 272, 418 N.E.2d 1291 [1981]; see
also Preiser, Practice Commentaries, Mck.
- 15 =
Consol. Laws of N.Y., 11A, Crim. Pro. L., §
60.22 p 588 (West 1992]). In Berger, the
New York Court of Appeals explained that,
"(tjraditionally the law has viewed
accomplice testimony with a suspicious
eye [citations omitted]. While such
evidence is competent, *** it may
often lack the inherent
trustworthiness of the testimony of a
disinterested witness [citation
omitted]. This is so because one who
concedes his or her own guilt and
testifies against another might often
be doing so to curry favor with the
authorities. Courts have thus
exercised the utmost caution in
dealing with accomplice testimony,
especially when the testimony is
exchanged for immunity or other
favorable prosecutorial consideration
[citations omitted]. And, many years
ago the legislature saw fit to provide
that the uncorroborated testimony of
an accomplice would not suffice for a
conviction" (52 N.Y.2d at pp. 218-19;
see also People v. Hudson, 51 N.Y.2d
233, 238-39, 433 N.Y.S.2d 1004, 414
N.E.2d 385 [1980]).
The law in New York is also clear that
corroboration of accomplice testimony is a
component of the People's burden of proof
where that kind of testimony is relied upon
by the prosecution to obtain an indictment
- 146 -
Se
as well as to establish the defendant's
guilt of the crimes charged or any lesser
included offenses. Section 70.10 of the
Criminal Procedure Law defines "legally
sufficient evidence" as,
"competent 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).
Under New York law, an indictment, to be
valid, must be based upon legally
sufficient evidence (N.Y.Crim.Pro.L.
§190.65, subd 1.), and "no conviction of an
offense by verdict is valid unless based
upon trial evidence which is legally
sufficient" (N.Y.Crim.Pro.L. §70.20).
Finally, Petitioners Morganti and
Rella were charged in the Ninth and Sixth
Racketeering Acts, respectively, with
bribing a witness in violation of section
215.00 of the New York Penal Law. To
establish their guilt of those crimes, the
-17-<-
ee
government relied on the testimony of two
witnesses both of whom were accomplices as
a matter of New York law (see
N.Y.Crim.Pro.L. §60.22, subd 2; People v.
Sweet, 78 N.Y.2da 263, 573 N.Y.S.2d 438, 577
N.E.2d 1030 [1991}). Under state law, the
evidence was legally insufficient to
Support a jury finding that Petitioners
Morganti and. Rella were guilty of the
conduct ascribed to them in Racketeering
Acts Nine and Six because there was no
corroborative evidence truly independent of
the accomplices' testimony "fairly and
reasonably" tending to connect Petitioners
to the commission of the crimes charged
(see People v. Velasquez, 151 A.D.2d 159,
164, 547 N.Y.S.2d 6 [lst Dept. 1989], aff'd
76 N.¥.2d 905, 561 N.Y.S.2da 911, 563 N.E.2d
282 [1990}).
Certiorari should be granted to review
the significant question of whether,
pursuant to 18 U.S.C. § 1961(1)(A), the
- 18 =-
language "Chargeable under state law"
requires the incorporation of the elements
of state offenses, relied upon in federal
RICO prosecutions to establish the required
pattern of racketeering activity, and
relevant defenses to those offenses
recognized under state law.
- 19 -
It.
IF 18 U.8.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 I8
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.
In his Petition, Point Two, pp46-64,
Petitioner Eisen argues that the vagueness
of 18 U.S.C. §1961(1)(A) coupled with the
vagueness of the pattern requirement,
renders the RICO statute unconstitutional.
Petitioners Morganti and Rella adopt and
join in those arguments in support of their
Petition for a Writ of Certiorari.
- 20 -
IIt.
WHETHER THE EXCLUSION OF PERJURY FROM
THE DEFINITION OF RACKETEERING
ACTIVITY SET FORTH IN 18 U.8.C. §
1961(1) (A) REQUIRES THE VACATUR OF
THOSE RACKETEERING ACTS ALLEGING
VIOLATIONS OF THE FEDERAL MAIL FRAUD
STATUTE (18 U.S.C. § 1341) WHICH WERE
BASED UPON SUBORNING PERJURY IN STATE
COURT PERSONAL INJURY ACTIONS.: a
In Point IV of his Petition, pp35-38,
Petitioner Joseph P. Napoli raised the
issue of whether the exclusion of perjury
from the definition of Racketeering
i pthedin 180.5... 8 14 eI (4) CA) .
Activity, required the vacatur of the guilty
verdicts on the mail fraud predicates which
were MGsansjaiiy based upon allegations
that Petitioners and their co-defendants
suborned perjury in a state court personal
injury action. Petitioners adopt and join
in the arguments made by Petitioner Napoli
in Point IV of his Petition.
- 21-
—
CONCLUSION
FOR THE REASONS ' STATED, THE
PETITION FOR A WRIT OF CERTIORARI
SHOULD BE GRANTED.
Dated: New York, New York
December 4, 1992
Respectfully submitted,
RICHARD E. MISCHEL, P.C.
Attorney for Petitioners
Morganti and Rella
225 Broadway, Suite 2199
New York, New York 10007
(212) 227-7040
- 22-
APPENDIX
la
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
+
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
*>
UNITED STATES OF AMERICA,
Appellee,
—_vVv.—
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.
he
Before:
MESKILL, Chief Judge,
TIMBERS and NEWMAN, Circuit Judges.
oe
Appeal from judgments of the United States District
Court for the Eastern District of New York (Charles P.
6421
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.
>
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.
6422
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
6423
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;
6424
Fishman: Aboud, Schwartz, Tuning, Nieves;
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 acis
underlying that conviction were not committed within the limitations
period.
6425
6a
the words “te 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
6426
___——— i
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
6427
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 Diswict Courts in this Circuit have concluded that this Court's
dicta in Evans stands only for the proposition that a civil RICO piaintiff
must have been injured to have standing under section 1964. See, eg.
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)
6428
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 tnal. In
affirming the defendant’s conviction for mail fraud, this
Court explicitly recognized that false evidence at a 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).
Weinstein 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.
6429
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
6430
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 can 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.
6431
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
6432
Derr eae aie ete ene ee
I3a
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 (Sth 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
6433
lta
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 ads 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. lt 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 (lst 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
6434
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 musi 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
6435
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. denied, 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, “All right. Ill 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.
6436
17a
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 Eiser 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-
6437
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.
6438
DRI aie iis edn hi oo cnmion
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 —isen 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, Kibei 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
6439
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 beth 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-
eral days before the Muinick trial 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 tial, admitted that he had indeed
attempted to bribe the officer and had done so at Eisen's request.
6440
re ee
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
6441
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-
Ol (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
6442
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 Pierrafesa 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-
6443
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 jury that Gaimari was untruthful, the
prosecutor might have invited the jury to disbelieve
Gaimari’s denials of her daughter’s involvement, without
affirmative evidence in corroboration, such a negative
inference is, by itself, insufficient 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
6444
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 substax:ive 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 artiele 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
6445
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
{Teak 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-
6446
—-
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. 1904 (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 trial 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
6447
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 i-terest in showing that the Government's
case has protited 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
6448
29a
the behest of the defendants. Eisen argues that this evi-
dence shouid 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 testimony, 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
ii plain that a verdict would nevertheless have to be directed agetn-'
him.” /d.
6449
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. Morlang, $31 F.2d 183, 189-90 (4th Cir. 1975);
United States v. Johnson, 802 F.2d 1459, 1466 (D.C. Cir. 1986).
6450
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 wit-
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-
6451
+ 3228
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-
spirac ’ count must fail as well. All three of the racke-
teering acts that the jury found Rella to have committed
6452
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
6453
34a
affront to the right to effective assistance of counsel that
we have found that such a circumstance demonstrates a
denial of that right. /d. 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
6454
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.” /d. at 690.
Napoli first points to Shargel’s stipulation that a dis-
puted mailing in the Robbins case had been mailed.
6455
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
6456
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-
6457
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 Gorti 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.
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“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 Gorti case intentionally provoked press
coverage with the aim of prejudicing the jury in the Eisen
case, nor does he offer any evidence that the Gouti 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 “[i]n the absence of
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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, $3 (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 cou.i, 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
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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.
Vill. 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 is
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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
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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
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’ se
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. /d. 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. /d. 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
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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 dened, 493 U.S. 933 (1989).
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ORDER DENYING PETITION FOR REHEARING
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,
Vv.
LEONARD KAGEL,
Defendant, DOCKET NUMBER: 91-1549(1),
91-1551,
Morris J. EISEN; JOSEPH P. NAPOLI; HAROLD 91-1553,
M. FISHMAN; DENNIS RELLA; MARTY GABE; 91-1554,
GERALDINE G. MORGANTI; ALAN WEINSTEIN 91-1555,
Defendants-Appellants. 91-1633,
92-1032,
A petition for rehearing containing a suggestion that the action
be reheard in banc having been filed herein 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 active service
and to any other judge that heard the appeal and that no such judge
has requested that a vote be taken thereon.
s/Elaine B. Goldsmith,
ELAINE B. GOLDSMITH,
Clerk
s/by Carolyn Clark Campbell
Chief Deputy Clerk
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.