Petition for Writ of Certiorari — Yannotti v. United States (No. 08-1062)

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Supreme C

ah Ourt, U.S.

(AW No.7 081062 FEB 1 8 2099

OFFICE OF THE CLERK

In The

Supreme Court of the United States

MICHAEL YANNOTT]I,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

DIARMUID WHITE

Counsel of Record

BRENDAN WHITE

WHITE & WHITE

148 East 78th Street

New York, NY 10075

(212) 861-9850

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO (#00) 225 6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a conviction for RICO conspiracy, 18

U.S.C. § 1962(d), which Salinas v. United States, 522

U.S. 52 (1997), held does not require that the defen-

dant himself commit or agree to commit two or more

predicate acts, nevertheless requires that the defen-

dant agree that the particular predicate acts charged

in the indictment be committed, or whether, as the

court of appeals held here, it suffices that Petitioner

agreed to the overall goals of the racketeering enter-

prise by joining it, even if he did not agree to or even

know about the commission of the predicate acts

charged in the indictment against other defendants?

2. Whether the court of appeals’ holding that

evidence of Petitioner’s induction into a criminal

organization was sufficient to sustain his conviction

for RICO conspiracy clashes with Congressional

intent and other circuit courts’ holdings subsequent to

Salinas v. United States that RICO conspiracy re-

quires agreeing to the commission of predicate acts

charged in the indictment and that membership in a

criminal organization is not the same as membership

in a particular conspiracy?

3. Since a new privacy interest is created when

possession of a cell phone is transferred in a non-

transitory manner to a new user, whether law en-

forcement officers monitoring a cell phone pursuant

to an eavesdropping warrant exceeded the warrant’s

scope and violated the Fourth Amendment when they

continued to intercept calls over that phone without

QUESTIONS PRESENTED - Continued

obtaining a new warrant after they learned that the

user had transferred the phone to a third person?

4. Whether a racketeering act charging Peti-

tioner with fact-bare, generic loansharking conspiracy

offenses not requiring an overt act, spanning ten

years and occurring in two federal districts and

“elsewhere” contained insufficient factual allegations,

thereby violating Fed. R. Crim. P. 7(c) and the Fifth

and Sixth Amendment rights the rule is designed to

protect?

5. Whether a six-fold increase in a U.S. Sen-

tencing Guidelines sentence, based on unconvicted

conduct presented to the jury but not found proved by

it, violates the Sixth Amendment right to jury trial

and the injunction in 18 U.S.C. § 3553(a)(2)(A) to

“promote respect for law”?

6. Where the evidence offered against a defen-

dant concerning unconvicted conduct is solely testi-

mony of cooperating witnesses, which testimony is

not credited by the jury, whether, consistent with the

Sixth Amendment right to jury trial, the sentencing

judge may credit this same testimony to sentence the

defendant to the maximum sentence within the

Guidelines?

7. Whether a six-fold increase in sentence is

reasonable if based solely on the sentencing judge’s

own determination of the credibility of witness testi-

mony which a jury did not find convincing?

QUESTIONS PRESENTED - Continued

8. Whether a circuit split should be resolved to

determine whether a racketeering act not found

proved by the jury may be treated by the sentencing

judge as “relevant conduct” under the preponderance

of evidence standard in U.S. Sentencing Guidelines

§ 1B1.3(a), or must be treated as an element of the

offense under the beyond a reasonable doubt stan-

dard in Guidelines § 1B1.2(d), as the Eleventh Circuit

has held?

PARTIES TO THE PROCEEDING BELOW

The parties to the proceeding in the court. whose

judgment is sought to be reviewed were as in the

caption.

TABLE OF CONTENTS

Page

RIEU FP TIOOE onc vinnie sv sccesssvacessenedeavstensys i

Parties to The Proceeding Below.....................006 iv

Bt OE PRINS EID nse sicciicccssecensceseccdanseserestessncens Vii

aula cavscne nd pce tdianadagunesmemcakeuar neh: 1

i a ovals iss sist nen sunasnaris wnenedanaek coon 1

Constitutional And Statutory Provisions, Rule

And Sentencing Guidelines Involved............... 2

SHCMEOMIONE OF THO COGS oo icsisivccccccsccsccecsccssscscscocsssise 5

Reasons for Granting The Petition...................... 16

SEES OREN COLOR OER LD PRN Oe ee 36

Appendix

Opinion of the United States Court of Appeals

ee ST IS CG ais isisicieckcesceseiccddicencnnceses App. 1

Opinion of the United States District Court for

the Southern District of New York on Post-

Trial Motion for Reconsideration .................. App. 38

Opinion of the United States District Court for

the Southern District of New York on Post-

RO Id cackins ou getceihsciouniiegcesesnadnamioneisoen App. 60

Opinion of the United States District Court for

the Southern District of New York on Pre-

SN NI oso sik. ic, socgnssaavansugucemmaueverseneneneind App. 86

TABLE OF CONTENTS — Continued

Page

Transcript of District Court Ruling on Pretrial

Motion (Excerpt), July 27, 2005 .................. App. 101

Order of the United States Court of Appeals for

the Second Circuit Denying Rehearing....... App. 102

vii

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000)............ 32

Berger v. New York, 388 U.S. 41 (1967) ................ 26

Blakely v. Washington, 542 U.S. 296 (2004)........ 30, 32

Horton v. California, 496 U.S. 128 (1990)................. 25

Katz v. United States, 389 U.S. 347 (1967)................ 25

Maryland v. Garrison, 480 U.S. 79 (1987)..............0 26

Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d

see: AER ERY - Parenneny ene ean ene ey Btn ere Pome tay rene 17

Oregon v. Ic#, EZ9 B.C. T11 (ZOOS) ......cesscevsenreseroseeees 31

Rita v. United States, 551 U.S. 338 (2007).......... $1, 32

Russell v. United States, 369 U.S. 749 (1962) ........... 28

Salinas v. United States, 522 U.S. 52 (1997).....passim

United States v. Aderholt, 87 F.3d 740 (5th Cir.

ERE ee Aten OR mPa ON ASE MONO AE EA PRE ODE 34

United States v. Avila, 465 F.3d 796 (7th Cir

nh Fa a a ce aaa hacen 22

United States v. Booker, 543 U.S. 220 (2005)............ 31

United States v. Carrozza, 4 F.3d 70 (1st Cir.

Te aie ark ds siuniaes 36

United States v. Corrado, 227 F.3d 528 (6th Cir

ERR EER ea ORR MTR OA OR ee Eee 35

United States v. Donovan, 429 U.S. 413 (1977)....23, 24

United States v. Driver, 535 F.3d 424 (6th Cir.

NR ree hae ote ee 19, 20, 21

TABLE OF AUTHORITIES — Continued

Page

United States v. Farese, 248 F.3d 1056 (11th

a eas 33, 34

United States v. Fiander, 547 F.3d 1036 (9th

ee le ehssd oceamnasanades 21

United States v. Gotti, 459 F.3d 296 (2d Cir.

SIRE arr eee re eS RES OMI ae ed ee Ee eee arr 33

United States v. King, 227 F.3d 732 (6th Cir.

TE Eee CL Ars te akan SE: Oe OO MEAS IE oe 27

United States v. Mercado, 474 F.3d 654 (9th

Ek, SEE TORRE NP RNPOT WAP TAEIS It Seay OEP TNA OT $1

United States v. Pungitore, 910 F.2d 1084 (3d

i RRP er RN re re Te See eren i lG. i, 17

United States v. Resendiz-Ponce, 549 U.S. 102

's SESRSSaet cep ee al anne mtn ae SIS LIED Me aa en SIT 28, 29

United States v. Starrett, 55 F.3d 1525 (11th

A ii a Ie is 20

United States v. The Bonanno Organized Crime

Family, 683 F.Supp. 1411 (E.D.N.Y. 1988)............. 17

United States v. To, 144 F.2d 737 (11th Cir.

RIE RIS Sart te Neo ee ROR Re ee PS 17

United States v. Tocco, 200 F.3d 401 (6th Cir.

ee ees saad 21

United States v. Watts, 519 U.S. 148 (1997).............. 31

United States v. White, 551 F.3d 381 (6th Cir.

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Conrad. ari ee ere ick etthickcsccccesecs 4,11, 24, 25

U.S. Commt. ape crsaceeek sca itdiiessnses 4,13, 27, 28, 30

U.S. Cooma. Sum, a carn cecinsssccccceceses passim

STATUTES, RULES AND GUIDELINES

ES UG. Bee care as iesesisiccccseccocscceses 29

iS BOR ROM Ce eee 29

18 U5 .C. & De lies iocecessnccesss 3,5, 16

18 U.S.C. © Teich owas 1, 3, 5, 16, 35

PEBOR- EGR Oe ee, aE

Fed. R. Corian: Fe Pei iiricidecosscsiees 4, 12, 28, 30

U.8.5.G. § RR Bese a iesases 4,16, 33, 34, 35

U.S.S.Gs. © EA a a ee ittsdne re xees. 4, 16, 33, 34

U.S.3.GC. § Bae ci ee tes se ass..s......8, 15, 35

PETITION FOR A WRIT OF CERTIORARI

Petitioner prays for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINIONS BELOW

The United States Court of Appeals for the

Second Circuit, in an opinion reported at 541 F.3d 112

and reproduced in the appendix at App. 1, affirmed

the judgment of the United States District Court for

the Southern District of New York, convicting Peti-

tioner of RICO conspiracy in violation of 18 U.S.C.

§ 1962(d) and sentencing him principally to 240

months’ imprisonment. The pertinent district court’s

opinions are reported at 457 F.Supp.2d 385, 415

F.Supp.2d 280 and 399 F.Supp.2d 268, and are repro-

duced in the appendix at App. 38, 60 and 86, respec-

tively.

JURISDICTION

The judgment of the court of appeals was entered

on September 4, 2008, and Petitioner’s timely petition

for rehearing was denied on November 20, 2008.

(App. 102) This petition for a writ of certiorari is

being timely filed within ninety days of denial of the

petition for rehearing in compliance with Rule 13.3 of

this Court’s rules. The Court’s jurisdiction is invoked

under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS, RULE AND

SENTENCING GUIDELINES INVOLVED

United States Constitution, Amendment IV,

provides:

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by

Oath or affirmation, and particularly de-

scribing the place to be searched, and the

persons or things to be seized.

United States Constitution, Amendment V,

provides in pertinent part:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury....

United States Constitution, Amendment VI,

provides in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury ... and to be in-

formed of the nature and cause of the accu-

sation....

Title 18 United States Code, Section 1962, pro-

vides in pertinent part:

employed by or associated with any enter-

prise engaged in, or the activities of which

affect, interstate or foreign commerce, to

conduct or participate, directly or indirectly,

in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or

collection of unlawful debt.

(d) It shall be unlawful for any person

to conspire to violate any of the provisions of

subsection (a), (b), or (c) of this section.

Title 18 United States Code, Section 3553(a),

provides in pertinent part:

Factors to be considered in imposing a

sentence. ~ .... The court, in determining

the particular sentence to be imposed, shall

consider —

(1) the nature and circumstances of the

offense and the history and characteristics of

the defendant;

(2) the need for the sentence imposed —

(A) to reflect the seriousness of the

offense, to promote respect for the law, and to

provide just punishment for the offense[.]

Rule 7(c)(1) of the Federal Rules of Criminal

Procedure provides in pertinent part:

The indictment or information must be a

plain, concise, and definite written statement

of the essential facts constituting the offense

charged.

Section 1B1.2(d) of the United States Sentencing

Guidelines provides:

A conviction on a count charging a con-

spiracy to commit more than one offense

shall be treated as if the defendant had been

convicted on a separate count of conspiracy

for each offense that the defendant conspired

to commit.

Section 1B1.3(a) of the United States Sentencing

Guidelines provides in pertinent part:

Unless otherwise specified, (i) the base

offense level where the guideline specifies

more than one base offense level, (ii) specific

offense characteristics and (ili) cross refer-

ences in Chapter Two, and (iv) adjustments

in Chapter Three, shall be determined on the

basis of the following:

(1)(A) all acts and omissions commit-

ted, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the

defendant ... that occurred during the com-

mission of the offense of conviction, in prepa-

ration for that offense, or in the course of

attempting to avoid detection or responsibil-

ity for that offense.

Section 2F1.1 of the United States Sentencing

Guidelines provides:

Unlawful Conduct Relating to Racketeer In-

fluenced and Corrupt Organizations

(a) Base Offense level (Apply the greater):

(1) 19; or

(2) the offense level applicable to the

underlying racketeering activity.

STATEMENT OF THE CASE

1. Petitioner, along with two codefendants, were

charged in a superseding indictment with RICO and

RICO conspiracy, 18 U.S.C. § 1962(c) and (d), related

to the affairs of the Gambino organized crime family.

Count One, alleging the RICO substantive of-

fense, set forth seven racketeering acts, only four of

which charged Petitioner. Three of those four racket-

eering acts indisputably occurred outside the five-

year statute of limitations period for a RICO offense;

only the fourth, charging loansharking conspiracies,

was alleged to have extended into the limitations

period. The three remaining racketeering acts, charg-

ing only the codefendants, alleged securities fraud

conspiracy, construction industry extortion conspir-

acy, and separate loansharking conspiracies. Each of

those racketeering acts was alleged to have occurred

within the statute of limitations period. No evidence

was offered at trial connecting Petitioner to those

racketeering acts or indicating his awareness of

them.

Count Two of the indictment, charging RICO

conspiracy, alleged that the three defendants con-

spired to conduct and participate in the affairs of the

Gambino Family “through a pattern of racketeering

activity, ... which pattern is set forth more fully in

paragraphs 14 through 20 above, as Racketeering

Acts One through Seven,” adding that “[e]ach defen-

dant agreed that a conspirator would commit at least

two acts of racketeering activity in the conduct of the

affairs of the enterprise.” (COA App. 43-44)

The jury found Petitioner guilty of RICO conspir-

acy — without specifying any two racketeering acts he

ostensibly agreed be committed — but was unable to

reach a verdict on the RICO substantive offense, the

verdict sheet indicating that the jury found proven

only one of the racketeering acts in which Petitioner

was named, alleging loansharking conspiracies. The

jury found unproven two of the racketeering acts in

which he was named, one consisting of a murder

conspiracy and murders and the other consisting of

an attempted murder. As to the fourth racketeering

act, alleging conspiring to kidnap and kidnapping one

Curtis Sliwa and attempting to murder him, the jury

found the attempted murder unproven, but was

unable to agree on the kidnapping and conspiracy

allegations, resulting in a mistriai on the RICO

substantive count.

The jury found one codefendant not guilty of the

securities fraud conspiracy and was unable to agree

on the other charges against him. The other codefen-

dant was found guilty of conspiracy to commit securi-

ties fraud, securities fraud and RICO conspiracy, but

the jury was unable to agree on the RICO substantive

count and the charges of conspiracy to commit extor-

tion in the construction industry.

2. The district court thereafter granted Peti-

tioner’s motion for a judgment of acquittal on the

RICO substantive count, concluding that there was

insufficient evidence that the loansharking conspira-

cies alleged against Petitioner — the only racketeering

act the jury found proved as to him — continued into

the five-year statute of limitations period. (App. 75-

77) The court, however, denied Petitioner’s motion for

a judgment of acquittal on the RICO conspiracy

count, rejecting Petitioner’s argument that the stat-

ute of limitations was not satisfied as to that count as

well, because he neither committed a charged predi-

cate act within the limitations period nor agreed that

the racketeering acts charged only against his code-

fendants during that period be committed. (App. 82-

85) The court reasoned that “[blecause the charged

enterprise’s affairs included construction industry

extortion, conspiracy to commit securities fraud, and

securities fraud, the statute of limitations was

deemed satisfied as to Yannotti even though the

Government offered no proof that Yannotti himself

agreed to commit those racketeering acts.” (App. 84)

The court subsequently denied Petitioner’s motion for

reconsideration. (App. 38ff.)

3. On Petitioner’s appeal, the court of appeals

reasoned similarly.. The court rejected Petitioner’s

claim that there was insufficient evidence that he

was a member of a RICO conspiracy that included

within the pattern of racketeering activity securities

fraud and construction industry extortion conspira-

cies, racketeering acts of which the court of appeals

recognized there was no proof Petitioner had knowl-

edge. The court, citing Salinas v. United States, 522

U.S. 52, held that Petitioner was nevertheless ac-

countable for those racketeering acts — the only acts

that satisfied the statute of limitations — because a

conspirator need not be fully informed about his

' The Government also offered no proof that Petitioner

agreed that those racketeering acts be committed by anyone or

even knew about them.

* The court of appeals misapprehended or mischaracterized

Petitioner’s claim in a number of respects. The court referred to

“Yannotti'’s core argument” that his RICO conspiracy conviction

cannot stand “absent proof of his personal involvement in” a

timely charged predicate act. (App. 17; emphasis added.)

Petitioner had made no such argument, one which would have

been flatly foreclosed by the holding of Salinas v. United States,

522 U.S. 52 (1997).

The court also stated that “Yannotti argues that he should

not be held liable for the acts of his co-conspirators.” (App. 16;

emphasis added.) Yannotti did not, nor could he, make such an

argument. Rather he argued that he should not be held liable for

the acts of his co-defendants.

co-conspirators’ specific criminal acts, provided that

he agreed to participate in the broader criminal

conspiracy and the acts evincing participation were

not outside the scope of the illegal agreement. (App.

17) The court asserted that “Salinas held that to be

found guilty of RICO conspiracy, a defendant need

only know of, and agree to, the general criminal -

objective of a jointly undertaken scheme.” (App. 17-

18, citing Salinas, 522 U.S. at 63.)

The sole factual predicate upon which the court

rested its conclusion that Petitioner’s conduct satis-

fied the standard it enunciated was that “the evi-

dence showed that Yannotti was formally inducted as

a ‘soldier’ into the Gambino Crime Family at a cere-

mony in which inductees pledged themselves to use

any means necessary to further the objectives of the

Family.” (App. 19; emphasis in original.) This pur-

ported evidence, Petitioner submits, is nowhere in the

record. In any event, on the basis of this “evidence,”

the court of appeals held that a reasonable jury could

conclude that “when Yannotti agreed to participate in

the affairs of the Gambino Family ... [he] agreed

that he, and others would engage in a jointly under-

taken pattern of racketeering activities reaching all of

the predicates established by the government.” (App.

19)

4. At Petitioner’s trial, to prove the loanshark-

ing conspiracy allegations against him, the prosecu-

tion introduced two _ intercepted conversations

between Petitioner, who was in Florida at the time,

and asserted loansharking customers over a cell

phone then in Petitioner’s possession. The conversa-

tions were intercepted by FBI agents who had ob-

tained an order authorizing the interception of calls

over a cell phone being used by Nicholas Corozzo, a

New Yorker, while visiting Florida in April 1996. The

application for the order stated that Corozzo had

asked a confidential source (“CS”) “whether the CS

could obtain a cellular for him which he, COROZZO,

would only utilize in Florida” and informed the CS

that, to avoid detection, the clone telephones “that he

possesses are frequently changed.” (COA App. 98)

A progress report to the issuing judge after

eavesdropping had begun reported that “[ojn April 13,

1996, at approximately 6pm, just prior to his return

trip to New York, COROZZO provided the target

cellular phone to MICHAEL YANNOTTI, an associate’

of the Gambino Organized Crime Family. At the same

time, COROZZO indicated that he would be returning

to the Southern District of Florida within a couple of

weeks.” (COA App. 109) Logs kept by monitoring

agents and annexed to the report indicated that the

cell phone was never actually used by Corozzo after

the interception began, but was in the possession of

and used by his girlfriend, Eileen Casotto, solely and

continuously, on April 12 and 13, 1996, before it was

later possessed and used by Petitioner. (COA App.

113-21)

Petitioner moved to suppress the conversations

because the agents continued to intercept calls over

that cell phone even after they knew that Corozzo no

longer possessed it and had left it in Florida when he

returned to New York. Petitioner maintained that

this continued interception constituted an unreason-

able search under the Fourth Amendment because it

expanded the scope of the order and converted it to

one akin to a general warrant.

The district court acknowledged that the issuing

judge’s “probable cause determination was premised

on Corozzo’s possession of the phone” (App. 97), but

denied the motion. The court reasoned that cell

phones “are mobile and can be easily handed from

one person to another,” and therefore “liJf the Gov-

ernment were not allowed to intercept outgoing calls

made on the target cell phone by parties other than

Corozzo without first obtaining a new wiretap au-

thorization, it would be effectively impossible to

wiretap this or any other cell phone.” (App. 97) The

court concluded, in effect, that it was for the agents to

determine whether, even though Corozzo no longer

possessed the cell phone, there was “probable cause to

believe that the cell phone remained an instrumental-

ity of the alleged conspiracy.” (App. 98)

The court of appeals misapprehended Petitioner’s

claim as seeking suppression “because the govern-

ment’s original wiretap application did not specifi-

cally name him as a target,” (App. 22; emphasis

added) a claim Petitioner made neither in the district

court nor in the court of appeals. In any event, the

court concluded that “the government had no reason

to believe that Yannotti would indefinitely maintain

possession of the cell phone” and therefore “acted

reasonably in suspecting that Corozzo would return

to Florida and re-claim his phone.” (App. 24)

5. A racketeering act charged Petitioner alone

with fact-bare, generic loansharking offenses — fi-

nancing extortionate extensions of credit, conspiracy

to make extensions of credit, and conspiracy to collect

extensions of credit through extortionate means —

each spanning ten years, from 1993 through 2002,

and ofcurring in two federal districts and “else-

where.” (COA App. 41) For example, with respect to

conspiracy to make extortionate extensions of credit,

it alleged:

b. From in or about 1993, up through

and including in or about 2002, in the South-

ern District of New York, the Eastern Dis-

trict of New York, and elsewhere, MICHAEL

YANNOTTI, a/k/a “Mikey Y,” the defendant,

and others known and unknown, unlawfully,

willfully, and knowingly combined, con-

spired, confederated, and agreed together

and with each other to make extortionate ex-

tensions of credit, as that term is defined in

Title 18, United States Code, Section 891, in

violation of Title 18, United States Code,

Section 892. (COA App. 41-42)

The allegations were similarly spare for the other

variations of loansharking alleged. (COA App. 41-42)

Petitioner’s pretrial motion contending that this

racketeering act should be dismissed because it

contained insufficient factual allegations, in viola-

tion of Rule 7(c) of the Federal Rules of Criminal

Procedure and the Fifth and Sixth Amendments, was

denied. (App. 101) The court of appeals upheld that

ruling, holding that “the indictment provided Yan-

notti with sufficient notice of the allegations regard-

ing loansharking,” which notice was supplemented by

discovery provided by the Government. (App. 31) The

court did not address Petitioner’s claim that, aside

from the question of notice, the indictment clause of

the Fifth Amendment requires enough factual par-

ticularity to ensure that a defendant will not be

prosecuted and convicted for a crime based on evi-

dence not presented to or considered by the grand

jury.

6. The jury’s guilty verdict on the RICO con-

spiracy count did not specify the racketeering acts on

which it was based. The verdict sheet with respect to

the RICO substantive offense, on the other hand, did

indicate the jury’s findings on the racketeering acts.

(COA App. 276) As to the two murders and two at-

tempted murders alleged against Petitioner as rack-

eteering acts, the jury unanimously found all of them

not proved. Only the racketeering act alleging loan-

sharking conspiracy was found proved. On the rack-

eteering act of conspiring to kidnap and kidnapping

Sliwa, which, as to Petitioner, hinged totally on the

testimony of two cooperating witnesses, Joseph

D’Angelo and Michael DiLeonardo, the jury split

seven for proved and five for not proved, necessarily

reflecting doubts about the witnesses’ credibility.”

Nevertheless, in sentencing Petitioner for RICO

conspiracy the district court, based solely on its own

determination of credibility, found by a preponder-

ance of evidence that Petitioner did commit the Sliwa

racketeering act, ruling as follows:

I turn to the kidnapping and attempted

murder of Curtis Sliwa. I begin by noting

that these charges were presented to only

one jury and that jury was unable to reach a

verdict. We do know that the jury was

deeply split on the issue with seven jurors

out of twelve believing that there was proof

beyond a reasonable doubt that Yannotti had

engaged in these actions. I had no trouble

finding, based on the evidence presented at

this trial and at two subsequent trials,’ that

* Sliwa also testified about the incident, but did not identify

Petitioner as a participant.

*.This statement is inaccurate. Actually, the jury unani-

mously found that the attempted murder charge was not proved.

The jury was unable to reach a verdict only on the kidnapping

charges. (COA App. at 276)

* “Two subsequent trials” refers to the retrials of codefen-

dant John A. Gotti, following two mistrials. Gotti was charged

with conspiring to kidnap Sliwa, but not with kidnapping and

attempted murder. Petitioner did not participate in the two

subsequent trials. Gotti was not convicted at either of those

trials.

the government has proved by a fair prepon-

derance of the credible evidence that Yan-

notti is responsible for these crimes.

First, I found the testimony of Joseph

D’Angelo to be credible and note that no jury

has ever entered a judgment of acquittal of

any defendant based solely on D’Angelo’s tes-

timony.

While I’m less confident that all of the

testimony given by Michael DiLeonardo [sic],

I do find that to the extent it collaborates

[sic] Yannotti’s role in the Sliwa shooting, it

was completely credible. Thus, by a fair pre-

ponderance of the evidence, Yannotti’s role in

the Sliwa attack will be considered as rele-

vant conduct. (COA App. 300-01)

The court accordingly rejected the recommenda-

tion in the presentence report that Petitioner be

sentenced to 41 months — based on the fact that

loansharking conspiracy was the only RICO predicate

that the jury found proved, resulting in an offense

level of 20 under U.S. Sentencing Guidelines

(“U.S.S.G.”) § 2E1.1 — and imposed instead a sentence

six times greater, the statutory maximum of 240

months, since the kidnapping racketeering act raised

the offense level to 36. (COA App. 301-02)

The court of appeals held that the district court

appropriately considered the Sliwa kidnapping in

sentencing Petitioner, since acquitted conduct may be

considered at sentencing. (App. 36) The court also

rejected Petitioner’s argument that a racketeering act

not found proven by the jury must be treated by the

sentencing judge as an element of the offense under

the beyond a reasonable doubt standard in U.S.S.G.

§ 1B1.2(d), not as “relevant conduct” under the pre-

ponderance of evidence standard in U.S.S.G.

§ 1B1.3(a). (App. 34-36) On that issue, the court sided

with the holdings of the First and Sixth Circuits and

rejected the contrary holding of the Eleventh Circuit.

(App. 34-36)

REASONS FOR GRANTING THE PETITION

The Court of Appeals’ Holding That Evidence

of Petitioner’s Induction into An Organized

Crime Family Was Sufficient to Sustain His

Conviction for RICO Conspiracy Is An Unwar-

ranted Expansion of Salinas v. United States,

Clashes with Congressional Intent, And Is at

Odds with Other Circuit Courts’ Holdings

Subsequent to Salinas.

1. The holding of Salinas v. United States, 522

U.S. 52, was that a RICO conspiracy violation under

18 U.S.C. § 1962(d) does not require that the defen-

dant himself commit or agree to commit the two

predicate acts necessary for a substantive RICO

offense under § 1962(c); “it suffices that he adopt the

goal of furthering or facilitating the criminal en-

deavor” which, if completed, would satisfy all the

elements of the substantive RICO offense. Jd. at 367.

Accordingly, even if defendant Salinas himself did not

accept or agree to accept the predicate bribes alleged

in the indictment against him and his superior, he

was properly convicted of RICO conspiracy because

the evidence showed that his superior “committed at

least two acts of racketeering activity when he ac-

cepted numerous bribes and that Salinas knew about

and agreed to facilitate the scheme.” Id. at 367 (em-

phasis added).

Other courts of appeals, as discussed below, have

read Salinas as still requiring evidence that a defen-

dant agreed to the commission of at least two predi-

cate acts charged in the indictment, not as

establishing that a defendant’s membership in a

criminal organization is sufficient to prove that he

conspired with other members to violate the RICO

statute. This accords with RICO’s legislative history,

indicating that Congress rejected the notion that

membership in the Mafia is a RICO offense.°

* See Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 n.17 (2d

Cir. 1983) (citing legislative history of RICO statute stating that

“mere membership” in an organized crime organization “should

not be punished”); see also United States v. To, 144 F.2d 737, 746

(11th Cir, 1998) (“[a] defendant must be convicted on the basis of

his own proven conduct, association is not enough[;] RICO does

not punish ‘mere association with conspirators or knowledge of

illegal activity; its proscriptions are directed against conduct,

not status’”) (citation omitted); United States v. Pungitore, 910

F.2d 1084, 1147 n.91 (3d Cir. 1990) (noting “district court’s

vigilance in instructing the jury that mere membership in the

Mafia did not constitute a crime”); United States v. The Bonanno

Organized Crime Family, 683 F.Supp. 1411, 1429 (E.D.NLY.

(Continued on following page)

2. The court of appeals here, even while recog-

nizing that there was no proof that Petitioner knew

about the predicate acts alleged in the indictment

against his codefendants, held, on the authority of

Salinas, that Petitioner was nevertheless accountable

for those racketeering acts — the only acts that satis-

fied the statute of limitations — because a conspirator

need not be fully informed about his co-conspirators’

specific criminal acts, provided that he agreed to

participate in the broader criminal conspiracy and

the acts evincing participation were not outside the

scope of the illegal agreement. (App. 17-18, 20) Since,

the court held, there was evidence that Petitioner had

been inducted into the Gambino organized crime

family, a reasonable jury could conclude that “when

Yannotti agreed to participate in the affairs of the

Gambino Family ... [he] agreed that he, and others

would engage in a jointly undertaken pattern of

racketeering activities reaching all of the predicates

established by the government.” (App. 19; emphasis

added.)

1988) (“Congress specifically declined to make mere membership

in an organized crime organization a RICO offense”).

" As noted above in the Statement of the Case, the court of

appeals stated that “the evidence showed that Yannotti was

formally inducted as a ‘soldier’ into the Gambino Crime Family

at a ceremony in which inductees pledged themselves to use any

means necessary to further the objectives of the Family.” (App.

19) This broad statement — critical to the court’s line of reason-

ing — is absolutely unsupported by the record. There was some

evidence that Petitioner was inducted into the Gambino Family,

albeit not “formally,” but no evidence whatsoever that he, or any

(Continued on following page)

The court of appeals’ holding effectively makes

mere membership in the Mafia — and presumably any

criminal gang — punishable under the RICO conspir-

acy statute, since Petitioner’s conviction was sus-

tained solely on evidence that he was inducted into

the Gambino Family. It follows that any person who

becomes a member of an organized crime Family can

be convicted of RICO conspiracy whenever, for the

entire course of his hfe or membership, any other

member or associate of that Family commits or

agrees to commit a pattern of two racketeering acts.

This catapults the contained result in Salinas

into the far-reaching notion that induction into an

organized crime Family constitutes an open-ended

agreement to the commission of any racketeering acts

by all other members — known or unknown, agreed to

or not — and thus suffices as proof of RICO conspiracy.

This is an unwarranted expansion of Salinas, clashes

with Congressional intent, and is at odds with other

circuit courts’ holdings subsequent to Salinas.

3. Shortly after the court of appeals’ decision in

this case, the Sixth Circuit reversed for insufficient

evidence the RICO conspiracy conviction of a

“patched member” of the Outlaw Motorcycle Club

(““OMC”).° United States v. Driver, 535 F.3d 424 (6th

other inductee, “pledged themselves to use any means necessary

to further the objectives of the Family.”

* A “patched” or “patchwearing” member is a “full-fledged”

member as opposed to a probationary or “probate” member. To

become an Outlaw, a probate member must be sponsored by a

(Continued on following page)

Cir. 2008). After quoting from Salinas, the Sixth

Circuit stated:

Accordingly, even if there is not sufficient

evidence to prove that Driver committed two

predicate acts himself, Driver’s RICO con-

spiracy conviction can be sustained if there is

evidence sufficient to prove that Driver

agreed that someone would commit two

predicate acts.

Id. at 432 (emphasis in original). The Sixth Circuit

nevertheless reversed, even though there was proof

beyond a reasonable doubt that “members of the

OMC agreed to violate the drug laws.” Jd. at 430. The

court determined that one alleged racketeering act

against defendant Driver — a drug distribution con-

spiracy — was proved, but not a second — a substan-

tive violation of the Travel Act by Driver and the head

of an OMC chapter designed to promote distribution

of drugs. Even though Driver was a full-fledged OMC

member and accompanied the OMC chapter head to

another state for a “bosses meeting,” where drug

distribution was regularly discussed, and even

though Driver had extensive contact with one Keeler,

the head of another OMC chapter, the Sixth Circuit

concluded that there was insufficient evidence that

Driver “agreed to the commission of any other predi-

cate act charged in the indictment.” Id. at 432

(emphasis added). The court added that Driver’s

patched member. See United States v. Starrett, 55 F.3d 1525,

1533 (11th Cir. 1995).

“extensive contact with Keeler ... does not establish

that Driver assented to any of the predicate acts

allegedly attributable to Keeler.” Jd. at 433. The court

observed that “Driver’s mere association with the

OMC is not sufficient to prove that he conspired with

other OMC members to violate the RICO statute.” Jd.

Unlike the court of appeals here, the Driver court

found nothing in Salinas to support the expansive

view that Driver’s membership in the OMC proved

his agreement to OMC’s general criminal objective,

thereby making him accountable for the acts of all

OMC members within the scope of that objective.

Indeed, in United States v. Tocco, 200 F.3d 401 (6th

Cir. 2000), the Sixth Circuit applied Salinas and

upheld the RICO conspiracy conviction of even the

“boss” of the “Detroit Cosa Nostra Family” only after

finding in the record “sufficient evidence for a ra-

tional jury to find that Tocco agreed to ‘facilitate .

some of the acts leading to the substantive offenses’

charged.” Id. at 426, citing Salinas, 522 U.S. at 65

(elision the Sixth Circuit’s) (emphasis added).

The court of appeals here, on the other hand,

believed that “Salinas held that to be found guilty of

RICO conspiracy, a defendant need only know of, and

agree to, the general criminal objective of a jointly

undertaken scheme.” (App. 17-18, citing Salinas, 522

U.S. at 63.) This “generalizing” of Salinas’ holding is

not supported by its text, at page 63 or elsewhere.

Also subsequent to the court of appeals’ decision

in this case, the Ninth Circuit in United States v.

Fiander, 547 F.3d 1036 (9th Cir. 2008), reinstated a

RICO conspiracy charge based on predicate acts of

contraband cigarettes trafficking, which charge had

been dismissed by the district court due to insuffi-

cient allegations in the indictment. The Ninth Circuit

noted that the indictment alleged that Fiander was a

member of the Mahoney Enterprise, which trafficked

in contraband cigarettes, that he had agreed to

commit the substantive offense of contraband ciga-

rettes trafficking, and that he knew about the objec-

tive of the enterprise and knowingly agreed to

facilitate it. Jd. at 1041-42. The court, applying

Salinas, held that “[t]he indictment accordingly

sufficiently alleges that Fiander agreed to facilitate

the commission of the crime of contraband cigarette

trafficking.” Id. at 1042. Again, something more than

membership in the enterprise and a generalized

knowledge of its goals was required.

Although not a RICO case, United States v. Avila,

465 F.3d 796 (7th Cir. 2006), a Latin Kings drug

conspiracy prosecution, is instructive. There the

Seventh Circuit observed that “(t]he government has

confused gang membership with membership in a

conspiracy, forgetting that ‘to join a conspiracy ... is

to join an agreement, rather than a group.’” 7d. at

798 (elision in original) (citations omitted). The court

explained: “[Ojne might join a gang to feel like a big

shot or to obtain immunity from being beaten up by

gang members, without participating in the gang’s

criminal activities.” Jd. So, too, to hold a member of a

Mafia Family accountable for all racketeering acts

committed by all other members of that Family, as

the court of appeals’ holding effectively does, extends

the principles of conspiratorial liability beyond that

intended by Congress in enacting RICO.

Certiorari should therefore be granted to delimit

the scope of the RICO conspiracy statute and the

holding in Salinas and to reconcile the disparate

positions of different circuits.

Since A Cell Phone Is Portable And Transfer-

able, A New, Non-Transitory Possessor of The

Phone Reflects A New Privacy Interest under

The Fourth Amendment, Requiring A New

Court Order Before Electronic Surveillance

May Continue, Unless, for Example, The Ap-

plicant Has in The First Instance Provided

The Issuing Court with Cause to Believe That

The Phone May Be Transferred to Other Indi-

viduals for Use in The Targeted Crimes And

The Order Provides for Continued Intercep-

tion in That Event.

4. Fourth Amendment jurisprudence needs

development to determine what reasonable expecta-

tion of privacy exists in the now almost universal cell

phone, which, unlike the land-line phones that most

eavesdropping cases over the past 40 years have

concerned, is portable and transferable and can

readily be given, loaned or sold to another. Thus,

when in United States v. Donovan, 429 U.S. 413

(1977), the Court indicated that “in the wiretap

context” the requirements of the Fourth Amendment

are satisfied “by identification of the telephone line to

be tapped and the particular conversations to be

seized,” id. at 427 n.15, this statement was made with

traditional land-line telephones in mind, telephones

which are anchored to fixed premises. An order

identifying “the telephone line to be tapped” may

have been sufficient in 1977, but that precept seems

archaic in light of present-day technology, where cell

phones are rooted in no particular place and with no

particular person.

It is reasonable that a new, non-transient posses-

sor of a cell phone reflects a new privacy interest,

requiring a new court order before electronic surveil-

lance may continue, at least where the application in

support of the order has not provided the issuing

court with cause to believe that the phone may be

transferred to other individuals for use in the tar-

geted crimes and the order does not provide for

continued interception in the event of such a transfer.

5. Here, the monitoring agents, at the time they

intercepted Petitioner’s conversations, knew that

Corozzo’s girlfriend, not Corozzo, had been using the

cell phone for at least two days and that Corozzo

could not use it, if ever, for at least “a couple of

weeks” if and when he returned from New York to

Florida. For the agents, nevertheless, to continue to

intercept conversations over that phone when it had

passed into the hands of a third person, Petitioner,

was an unreasonable search, because Petitioner had a

reasonable expectation of privacy in making calls

over the phone he now possessed.” See Katz v. United

States, 389 U.S. 347, 351, 353 (1967) (“the Fourth

Amendment protects people, not places” and “[tjhe

Government’s activities in electronically listening to

and recording the petitioner’s words violated the

privacy upon which he justifiably relied while using

the telephone booth”).

Moreover, the eavesdropping order here cannot

be reasonably interpreted as authorizing continued

interceptions over the phone if possession passed on

to persons other than Corozzo, and thus the agents

exceeded the scope of the order. Horton v. California,

496 U.S. 128, 140 (1990) (“if the scope of the search

exceeds that permitted by the terms of a validly

issued warrant or the character of the relevant excep-

tion from the warrant requirement, the subsequent

seizure is unconstitutional without more”).

Finally, if the order were interpreted as permit-

ting the agents to seize conversations over the cell

phone regardless of whether the phone changed

hands once, twice or even more, this would “leavef ]

too much to the discretion of the officer executing the

* This is not a case in which a person merely used another’s

cell phone to make a call, with constructive possession remain-

ing with the cell phone owner, but a much narrower case in

which Corozzo relinquished possession of the cell phone and

effectively abandoned it. Thus, there is no genuine basis for

concern that the casual use of another’s cell phone to make a call

would trigger the need for a new wiretap authorization.

order,” Berger v. New York, 388 U.S. 41, 49 (1967),

officers like those here who went right ahead and

intercepted calls even though they knew that Corozzo

no longer had the phone, had not used it since the

intercepting began, and was not even in Florida

anymore.

6. The district court's view that “despite

Corozzo’s departure” the agents “had reason to be-

lieve” that the cell phone would “continue to be used”

to discuss the target offenses and that “although

Corozzo no longer possessed the phone, there was

probable cause to believe that it remained an instru-

mentality of the alleged conspiracy” (App. 17-18) —

which reasoning the court of appeals endorsed (App.

25) — is invalid, because it is for a neutral and de-

tached magistrate, not the agents, to make such

determinations.

Here, at the very least, once the agents knew

that Corozzo was leaving Florida and had transferred

the phone to Petitioner — a phone that apparently

only Corozzo’s girlfriend had used during the period

of interception — they were obliged to cease inter-

cepting communications, return to the issuing judge

and, upon an appropriate showing of probable cause,

obtain a new order authorizing the interception of

Petitioner’s communications over that phone. Cf.

Maryland v. Garrison, 480 U.S. 79, 80-81 (1987)

(where search warrant authorized search of “prem-

ises known as 2036 Park Avenue third floor apart-

ment,” officers properly recognized that “they were

required to discontinue the search of {the defendant’s]

apartment as soon as they discovered that there were

two separate units on the third floor”); United States

v. King, 227 F.3d 732, 752 (6th Cir. 2000) (“officer

should have sought a search warrant for the base-

ment area when he came upon it during the course of

the search of Defendant’s unit .3 decision to proceed

without a warrant was flagrant and unreasonable

under these facts”).

Certiorari should be granted to decide whether,

in cases where possession of a cell phone has been

transferred in a non-transitory manner, an applica-

tion must be made to a judge for a new warrant,

assuming probable cause, to intercept conversations

over the cell phone now possessed by a different

individual.

Itt

An Indictment’s Allegations of Fact-Bare,

Generic Offenses - Here Spanning Ten Years,

Occurring in Two Federal Districts And

“Elsewhere” —- Do Not Comply with The In-

dictment Clause of The Fifth Amendment,

Even If It Could Be Said That, in Light of

Discovery, The Defendant Received Notice of

The Charges Sufficient to Comply with The

Sixth Amendment.

7. If an indictment does not allege essential

facts, “a defendant could then be convicted on the

basis of facts not found by, and perhaps not even

presented to, the grand jury which indicted him.”

Russell v. United States, 369 U.S. 749, 770 (1962).

Thus, Fed. R. Crim. P. 7(c), embodying both the

indictment clause of the Fifth Amendment and the

notice clause of the Sixth Amendment, requires that

“(t]he indictment or information must be a _ plain,

concise, and definite written statement of the essen-

tial facts constituting the offense charged.” (Emphasis

added.)

Yet, in assessing the sufficiency of an indict-

ment’s allegations, district courts and courts of ap-

peals, as here, frequently focus on “notice” and look to

discovery, a bill of particulars, or other extra-

indictment information in deciding whether notice

was adequate and, hence, the allegations sufficient.

Since such extra-indictment information is a

product of the prosecutor’s office not the grand jury, it

affords prosecutors the opportunity to supply ele-

ments of its case with facts different from those

considered by the grand jury. In complex federal

prosecutions, where much evidence is uncovered after

indictment as a result of codefendants entering into

cooperation agreements and where’ cooperating

witnesses rarely testify before the grand jury, it is

important to ensure that charges in the indictment

returned by the grand jury are not transformed by

the time of trial into different crimes with different

co-conspirators.

8. In United States v. Resendiz-Ponce, 549 U.S.

102 (2007), the use of the word “attempt,” coupled

with the specification of the time and place of the

defendant’s illegal entry, satisfied the constitutional

requirements for an indictment. It may very well be

that indictments that do little more than to track the

language of the statute charged and state the time

and place of the alleged crime in approximate terms

will adequately supply the essential facts of the crime

charged, especially if it is an offense committed on a

particular occasion. But where the charged offense is

as long and broad as that charged here, and espe-

cially where no overt act is required, such informa-

tion is inadequate. See Resendiz-Ponce, 549 U.S. at

109 (“while an indictment parroting the language of a

federal criminal statute is often sufficient, there are

crimes that must be charged with greater specific-

ity”).

Where a conspiracy is charged under the general

conspiracy statute, 18 U.S.C. § 371, the statute’s

requirement that an overt act be pled and proven

provides, at least, some factual point of reference for

defendants. Where, however, there is no overt act

requirement, as with a conspiracy to make an extor-

tionate extension of credit, see 18 U.S.C. § 892, there

is a greater need for essential facts to be stated in the

charge.

Here, the pertinent racketeering act alleged no

concrete fact, and the broad temporal and geographic

scope of the charges — ten-year conspiracies with

unnamed co-conspirators in two federal districts and

beyond — provided a fertile field for post-indictment

back-filling, if a prosecutor so chose.

Certiorari should be granted to decide whether

the right set forth in the indictment clause of the

Fifth Amendment, as reflected in Fed. R. Crim. P.

7(c), is being adequately protected.

A Six-Fold Increase in A U.S. Sentencing

Guidelines Sentence, Based on Judge-Found

Facts regarding Unconvicted Conduct Which

The Jury Found Not Proved Because The Jury

Did Not Credit The Witnesses, Is Unreason-

able And Violates The Sixth Amendment Right

to Jury Trial And The Injunction in 18 U.S.C.

§ 3553(a)(2)(A) To “Promote Respect for Law.”

9. No lay citizen, told that a judge could in-

crease a defendant’s sentence six-fold on the basis of

her or his own determination of the credibility of

witness testimony which a jury did not find convinc-

ing, would consider this anything less than an affront

to his or her conception of American justice. Thus,

such a sentence does not “promote respect for law,” 18

U.S.C. § 3553(a)(2)A), a sentencing requirement

prescribed by Congress. United States v. White, 551

F.3d 381, 2008 U.S. App. LEXIS 26095, *46-47 (6th

Cir. Dec. 24, 2008) (en banc) (dissent).

More fundamentally, such a sentence violates the

Sixth Amendment right to trial by jury. See Blakely v.

Washington, 542 U.S. 296, 308 (2004) (the right to a

jury trial “is no mere procedural formality, but a fun-

damental reservation of power in our constitutional

structure ... meant to ensure [the people’s] control in

the judiciary”). It is an open question in this Court

whether a sentence increased on the basis of conduct

found not proved by the jury violates the right to trial

by jury. Cf. Oregon v. Ice, 129 S.Ct. 711 (2009) (Sixth

Amendment does not inhibit States from assigning to

judges, rather than juries, finding of facts necessary

to imposition of consecutive sentences, since decision

as to consecutive sentences was not entrusted to

juries at common law).

In United States v. Watts, 519 U.S. 148 (1997),

the Court held only that the Double Jeopardy Clause

does not bar a sentencing judge from considering

acquitted conduct. See United States v. Booker, 543

U.S. 220, 240 n.4 (2005) (“Watts, in particular, pre-

sented a very narrow question regarding the interac-

tion of the Guidelines with the Double Jeopardy

Clause”). But the Court has never held that the Sixth

Amendment right to jury trial does not bar considera-

tion of conduct presented to the jury and found not

proved by it. See United States v. White, 551 F.3d 381,

2008 U.S. App. LEXIS 26095 at *30-33; United States

v. Mercado, 474 F.3d 654, 658 (9th Cir. 2007) (dis-

sent).

10. The judge’s finding here that the Petitioner

was involved in unconvicted conduct, the Sliwa

kidnapping, was a “legally essential predicate,” Rita

v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2477

(2007) (Scalia, J., concurring in part and in the

judgment), for increasing Petitioner’s Guidelines

offense level from 20 to 36 — calling for a 240-month

sentence. The sentence would have been “unreason-

able,” and thus unlawful, but for the judge-found

facts. See id. Consequently, those facts, as a “legally

essential predicate” for increasing the sentence,

should be found by a jury under the Sixth Amend-

ment and under Apprendi v. New Jersey, 530 U.S. 466

(2000), and Blakely v. Washington, 542 U.S. 296. But

the Court has yet to resolve this question.

A sentence based solely on a judge’s second-

guessing jurors’ assessment of credibility is offensive

to American ideals. The 240-month sentence imposed

on Petitioner based on unconvicted conduct found by

the judge after the jury did not so find — rather than

the 41-month sentence that the jury’s findings did

support — makes a mockery of the concept of trial by

jury. Petitioner was sentenced almost as if there had

been no trial at all; as if he had entered into a negoti-

ated plea calling for a 20-year sentence rather than

putting the Government to its proof before a jury; or

as if the jury had believed the witnesses and found

the conduct at issue proven.”

'° If the district court had suppressed a confession or there

were other objective grounds, unknown to the jurors, for con-

cluding that Petitioner had been involved in the Sliwa kidnap-

ping, or if there had been some new evidence presented in

connection with the sentencing hearing, consideration of that

conduct in sentencing Petitioner might be less offensive. But

here, the judge’s finding was based solely on her personal view

of the witnesses’ credibility. This is particularly galling in that

the judge’s credibility finding, notwithstanding the jury’s

(Continued on following page)

Certiorari should be granted so the Court can

finally reach the issue of whether the Sixth Amend-

ment prohibits an increased sentence based on con-

duct which a jury has found not proven.

A Circuit Split Should Be Resolved to Deter-

mine Whether A Racketeering Act Not Found

Proven by The Jury May Be Treated by The

Sentencing Judge As “Relevant Conduct”

under The Preponderance of Evidence Stan-

dard in U.S. Sentencing Guidelines § 1B1.3(a),

Or Must Be Treated As An Element of The

Offense under The Beyond A Reasonable

Doubt Standard in Guidelines § 1B1.2(d).

11. The jury’s guilty verdict on RICO conspiracy

did not specify the racketeering acts on which it was

based. In United States v. Farese, 248 F.3d 1056 (11th

Cir. 2001), where the defendants pled guilty to RICO

conspiracy, but their pleas did not establish “whether

money laundering or mail fraud was the object of the

racketeering conspiracy” alleged in the indictment,

the Eleventh Circuit vacated the sentences because

the district court had found money laundering to be

an object of the conspiracy by a preponderance of the

evidence rather than beyond a reasonable doubt as

required by U.S.S.G. § 1B1.2(d). Id. at 1060-61.

assessment, is reviewable only for “clear error.” See United

States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006).

Here, the courts below rejected Petitioner’s

argument, in reliance on Farese, that a racketeering

act not found proven by the jury must be treated by

the sentencing judge as an element of the offense

under the beyond a reasonable doubt standard in

U.S.S.G. § 1B1.2(d), not as “relevant conduct” under

the preponderance of evidence standard in U.S.S.G.

§ 1B1.3(a). (App. 34-36)

11. For purposes of determining the applicable

Guideline for a conspiracy with multiple objects,

U.S.S.G. § 1B1.2(d) provides that a “conviction on a

count charging a conspiracy to commit more than one

offense shall be treated as if the defendant had been

convicted on a separate count of conspiracy for each

offense that the defendant conspired to commit.” In

other words, the applicable Guideline is not deter-

mined by treating different objects of the conspiracy

as “relevant conduct” under U.S.S.G. § 1B1.3(a),

which Guideline by its own terms applies “[u]nless

otherwise specified,” but by the direction “otherwise

specified” in U.S.S.G. § 1B1.2(d), 1.e., “as if the defen-

dant had been convicted on a separate count of con-

spiracy for each offense that the defendant conspired

to commit.” See United States v. Aderholt, 87 F.3d

740, 744 (5th Cir. 1996) (unlike in U.S.S.G. § 1B1.3,

where “offense” is defined to include offense of convic-

tion and all relevant conduct, in U.S.S.G. § 1B1.2(d)

“offense” does not include relevant conduct).

Here, the court of appeals, in holding that the

district court properly applied the preponderance of

evidence standard, notwithstanding U.S.S.G. § 1B1.2(d),

reasoned that RICO conspiracy is not a multiple-

object conspiracy, but has single-object: to violate 18

U.S.C. § 1962(c). (App. 34) The court expressly re-

jected the Eleventh Circuit’s contrary holding in

Farese, and followed the holdings of the First and

Sixth Circuits, in United States v. Carrozza, 4 F.3d 70

(1st Cir. 1993), and United States v. Corrado, 227 F.3d

528 (6th Cir. 2000), respectively. (App. 34-36)

The court of appeals, however, overlooked the

fact that, while RICO conspiracy does in fact have a

single objective, the Guidelines themselves treat

RICO as if it were a multiple object conspiracy. The

Guideline for RICO conspiracy, U.S.S.G. § 2E1.1,

provides that the base offense level is 19 or “the

offense level applicable to the underlying racketeering

activity.” (Emphasis added.) Application Note 1 to the

§ 2E1.1 states in pertinent part that “[w]here there is

more than one underlying offense, treat each underly-

ing offense as if contained in a separate count of

conviction.” Accordingly, since the Guidelines treat

RICO conspiracy as if it were a multiple object con-

spiracy, U.S.S.G. § 1B1.2(d) — which governs a “con-

viction on a count charging a conspiracy to commit

more than one offense” — is fairly made applicable to

RICO conspiracy.

Certiorari should therefore be granted to resolve

this conflict among the circuits.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: New York, New York

February 16, 2009

Respectfully submitted,

DIARMUID WHITE

Counsel of Record

BRENDAN WHITE

WHITE & WHITE

148 East 78th Street

New York, NY 10075

(212) 861-9850

Attorneys for Petitioner

App. 1

UNITED STATES OF AMERICA, Appellee, - v. -

MICHAEL YANNOTTI, Defendant-Appellant.

Docket No. 06-5571-cr

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

541 F.3d 112; 2008 U.S. App. LEXIS 18820;

77 Fed. R. Evid. Serv. (Callaghan) 500

December 20, 2007, Argued

September 4, 2008, Decided

PRIOR HISTORY:

Appeal from a judgment of conviction in the

United States District Court for the Southern District

of New York (Scheindlin, J.) for racketeering conspir-

acy. See 18 U.S.C. § 1962(d).

United States v. Yannotti, 399 F. Supp. 2d 268, 2005

U.S. Dist. LEXIS 10015 (S.D.N.Y., 2005)

United States v. Yannotti, 415 F. Supp. 2d 280, 2005

U.S. Dist. LEXIS 37825 (S.D.N.Y., 2005)

DISPOSITION: Affirmed.

COUNSEL: DIARMUID WHITE, White & White

(Brendan White, on the brief), New York, N.Y., for

Defendant-Appellant.

ELIE HONIG, Assistant United States Attorney

(Katherine Polk Failla, on the brief), for Michael J.

Garcia, United States Attorney for the Southern

District of New York, New York, N.Y., for Appellee.

App. 2

JUDGES: Before: KATZMANN, B.D. PARKER, and

RAGGI, Circuit Judges.

OPINION BY: BARRINGTON D. PARKER

OPINION

BARRINGTON D. PARKER, Circuit Judge:

Michael Yannotti appeals from a judgment of

conviction in the United States District Court for the

Southern District of New York (Scheindlin, J.). The

jury convicted him of conspiring to engage in racket-

eering in violation of the Racketeer Influenced and

Corrupt Organizations (“RICO”) Act. See 18 U.S.C.

§ 1962(d). The district court sentenced Yannotti

principally to 240 months’ incarceration. Yannotti’s

appeal raises several issues. We consider whether one

of the counts of conviction was time-barred, whether

the district court properly admitted certain inter-

cepted communications, and whether the evidence

was sufficient to support his conviction for racketeer-

ing conspiracy. We also review the reasonableness of

his sentence. We affirm.

BACKGROUND

On July 21, 2004, the government indicted Yan-

notti and his co-defendants, John Gotti Jr. and Louis

Mariani, alleging that they were members of the

App. 3

Gambino Crime Family,’ a racketeering enterprise

that engaged in, inter alia, extortion, extortionate

extensions of credit, securities fraud, as well as

violent conduct including murder. Specifically, Yan-

notti was charged with a substantive count of racket-

eering in Count One and with participating in a

RICO conspiracy that existed from the mid 1990s

through 2004 in Count Two. See 18 U.S.C. § 1962(c),

(d). Count One specifically charged Yannotti with

participation in four separate predicate acts: Racket-

eering Act One charged Yannotti with conspiring to

kidnap, kidnaping and attempting to murder Curtis

Sliwa; Act Two charged Yannotti with conspiring to

murder and murdering Robert Arena, and murdering

Thomas Marenga; Act Three charged Yannotti with

attempting to murder Robert Tarantola and Act

Seven charged Yannotti with loansharking, specifi-

cally conspiring to make and collect extortionate

extensions of credit throughout the 1990s. The afore-

mentioned predicate acts were incorporated by refer-

ence in Count Two, along with several other predicate

acts, including securities fraud and extortion in the

' The indictment alleges that the Gambino Family operated

through groups of individuals known as “crews.” Each “crew”

was headed by a “capo” or “captain,” and consisted of “made”

members who were also known as “soldiers.”

* The jury failed to reach a verdict as to Gotti on three of

the four counts naming him and acquitted him on one count.

Following two subsequent mistrials, the government dismissed

the remaining charges against him. Mariani was convicted on

several counts. He was sentenced principally to 78 months’

imprisonment.

App. 4

construction industry, allegedly committed by Yan-

notti’s co-defendants in furtherance of the enterprise’s

affairs. Yannotti was also charged with murdering

Arena and Marenga in aid of racketeering in Counts

Nine and Ten.

The government’s proof at trial included testi-

mony from several members and associates of the

Gambino Crime Family, as well as from law enforce-

ment officers. These witnesses described Yannotti’s

criminal activities as an associate of Family member

Nicholas Corozzo, whose crew was based in the

Canarsie section of Brooklyn. In addition to Yannotti’s

loansharking activity, the government offered proof,

primarily thorough Gambino Family associate An-

drew DiDonato, that Yannotti was involved in the

1987 shooting of Robert Tarantola, an associate of the

Colombo Crime Family, a rival criminal enterprise.

Gambino Family captain Michael DiLeonardo and

soldier Joseph D’Angelo testified about Yannotti’s

involvement in a 1992 conspiracy to abduct and

murder Curtis Sliwa, a radio host and founder of the

Guardian Angels, in retaliation for his public criti-

cism of John Gotti, Sr., then head of the Gambino

Family. Finally, DiDonato and DiLeonardo testified

that in 1996, Yannotti shot Robert Arena and Thomas

Marenga as a result of a conflict between Yannotti’s

crew and members of the Lucchese Crime Family, a

rival criminal enterprise. In addition to testimonial

evidence, the government offered surveillance photo-

graphs, a beeper recovered at the scene of the Arena

and Marenga murders, records indicating that the

App. 5

beeper belonging to Yannotti, recorded conversations

between Yannotti and his loansharking customers,

and additional loansharking records.

During trial, two evidentiary issues arose that

figure in this appeal. The first concerned the admis-

sibility of certain evidence secured as a result of a

1996 court authorized wiretap of a cellular phone

used by Corozzo and his associates in Florida. The

affidavit in support of the application averred that

the phone was being used by Corozzo and “others yet

unknown” in furtherance of a racketeering conspiracy

that engaged in loansharking and money laundering,

largely in New York. While the affidavit sought

authorization to intercept conversations of Corozzo

and several other named individuals, it did not iden-

tify Yannotti among the anticipated interceptees. It

did, however, state that probable cause existed to

suspect that “unknown others” used the phone while

engaging in illegal activity.

On April 22, 1996, the day that the application

was approved, Corozzo left the cell phone that was

the subject of the application in Florida and returned

to New York. The next day, the FBI intercepted its

first phone call from Yannotti made on the target

phone. The government’s initial ten-day progress

report to the judge supervising the wiretap described

two phone calls made by Yannotti involving the

collection of loansharking debts. The report ex-

plained that “Michael Yannotti will be identified as a

named interceptee [on the wiretap application] if an

extension affidavit is filed in this case.” Finally, the

App. 6

government informed the judge that it believed that

the phone would continue to be used by Yannotti,

Corozzo, and unnamed others to discuss the offenses

described in the initial authorizing order. The gov-

ernment never intercepted any phone calls from

Corozzo or sought an extension of the wiretap, thus,

Yannotti was never formally named in the authoriza-

tion. See United States v. Yannotti, 399 F. Supp. 2d

268, 270 (S.D.N.Y. 2005).

Before the start of the trial, Yannotti moved to

suppress the two calls on the ground that the agents

had exceeded their authority in continuing to inter-

cept calls well after learning that Corozzo no longer

possessed the phone. He argued that the agents were

required to seek new authorization to intercept his

conversations and that the continued interception

converted the initial authorization into a general

warrant proscribed by the Fourth Amendment. The

district court disagreed, pointing to the fact that the

initial order permitted the interception not only of

Corozzo and others specifically named in the authori-

zation, but also “others yet unknown”, and conse-

quently was not limited to the interception of calls

placed by Corozzo himself. Yannotti, 399 F. Supp. 2d

at 273. The court concluded that due to the easy

mobility of cellular phones, the government was not

required to seek a new authorization each time that a

new person used the phone. Additionally, the gov-

ernment reasonably believed that the phone would

continue to be used as an instrument of the charged

conspiracy while in Yannotti’s possession. /d. For

App. 7

these reasons, the court concluded that the scope of

the warrant and the reasonableness of the govern-

ment’s conduct posed no constitutional problems.

The second evidentiary issue relevant to this

appeal concerned the admissibility of certain lay

opinion testimony and poses the question whether

Andrew DiDonato, a government witness, was prop-

erly allowed to interpret the two intercepted conver-

sations involving Yannotti. DiDonato first testified

about his participation, and assistance to Yannotti, in

the loansharking conspiracy. He then explained that

individuals who received extortionate loans usually

made weekly payments on the interest rather than on

the principal and that the interest was usually

termed “points” by those involved in loansharking. In

response to the government’s question about the

meaning of a loansharking victim’s statement to

Yannotti that “’m going to leave you a two,” DiDo-

nato testified that it meant “200 dollars” in interest.

DiDonato also testified that the intercepted conversa-

tions consisted of Yannotti seeking to collect a debt

from an individual who was “backed up on his pay-

ments.” Over objection, the court admitted this

” The conversation that DiDonato was asked to interpret is

as follows:

YANNOTTI: Your [sic] way behind here.

ANDY: You got a calendar there?

YANNOTTI: Not on me, but, uh, look, Monday’s

gonna be six.

(Continued on following page)

App. 8

ANDY: Okay.

YANNOTTI: Altogether. What does that look

like to you?

ANDY: I'll call him by tomorrow and I'll get to-

gether with him, and uh ... [ll see him ... I'll see

him with six.

YANNOTTI: Alright, then you’re good ‘till for

three weeks. So three Monday’s from now... .

ANDY: And then that'll leave us with what?

Four?

YANNOTTI: Two....

YANNOTTI: This ... this Monday coming up

will be six.

ANDY: Okay.

YANNOTTI: Alright, so then you’re fresh ‘till,

you know....

At trial, the government asked DiDonato to describe what he

had heard occur during the taped conversation:

GOVERNMENT: And when they're talking

about getting calendars out, what is your understand-

ing of what Michael Yannotti is telling this person

named Drew or Andy?

DIDONATO: That he’s backed up on his pay-

ments

GOVERNMENT: What do you base that on?

DIDONATO: I base that on coming this week

will be six, then based on the other information here

that said, well, after this, after you pay the six you'll

be starting off fresh, and looks like it’s three weeks. So

to me it looks like a $200 a week interval.

[DEFENSE COUNSEL): That is for the jury to

determine.

(Continued on following page)

App. 9

testimony after determining that DiDonato acquired

his understanding of the conversation through per-

sonal experience with loansharking. See Fed. R. Evid.

701.

At the conclusion of the government’s case,

Yannotti moved for a judgment of acquittal on Counts

One and Two pursuant to Federal Rule of Criminal

Procedure 29(a), arguing that the government had

presented insufficient evidence of his guilt. Further,

he asserted that there was insufficient proof that he

had committed any predicate acts within the five-

year statute of limitations period. Yannotti claimed

that most of the predicate acts alleged violent conduct

taking place in 1987, 1992, and 1996, all of which fell

well outside of the statute of limitations. See 18

U.S.C. § 3282(a) (“[NJo person shall be prosecuted,

tried, or punished for any offense, not capital, unless

the indictment is found ... within five years next

after such offense shall have been committed.”). With

respect to the loansharking conspiracy, which was

alleged to have continued from 1993 to 2002, Yannotti

GOVERNMENT: Are you familiar with that

term that Yannotti used, so all right, then you’re

fresh, if you give him six now you're fresh until, you

know. Do you know what that term fresh means used

in this context?

DIDONATO: Not that particular term per se,

but to me it means he'll be even and won’t own any

back money and he'll be fresh to start again and start

a new week off.

App. 10

argued that the evidence was insufficient to show

either (1) that he participated in the conspiracy or (2)

that the conspiracy continued into the limitations

period. The district court denied his motion.

The jury convicted Yannotti of engaging in the

RICO conspiracy described in Count Two but could

not reach a verdict on the substantive RICO count

described in Count One. On its verdict sheet, the jury

indicated that the government had proved that Yan-

notti conspired to engage in loansharking, but had

not proven the other racketeering predicate acts — the

conspiracy to murder Arena, the murders of Arena

and Marenga, or the attempted murder of Tarantola.

With respect to the racketeering act charging Yan-

notti with conspiring to kidnap, kidnaping, and

attempting to murder Curtis Sliwa, the jury found

that the attempted murder was not proven, but could

not agree on whether the government proved the

alleged conspiracy to kidnap or Yannotti’s involve-

ment in the kidnaping. The jury also acquitted Yan-

notti of the two counts alleging violent conduct in aid

of racketeering.

Following trial, the district court granted Yan-

notti’s renewed motion under Rule 29(c) for a judg-

ment of acquittal as to Count One. The court

concluded that because there was insufficient evi-

dence that Yannotti had participated in loansharking

after 1999, the loansharking conspiracy — the only

predicate act for which Yannotti had been found

App. 11

guilty — actually fell outside of the five-year statute

of limitations.‘ United States v. Yannotti, 415

F. Supp. 2d 280, 289 (S.D.N.-Y. 2005). The district

court specifically found that the government had not

proven that Yannotti was involved in any loanshark-

ing activity after 1996 given that “[tJhere were no

recorded conversations concerning loansharking

after 1996, nor were any loansharking records found

on Yannotti at any time after 1996. Furthermore,

Yannotti’s coconspirators ... who, under the Gov-

ernment’s own theory, provided Yannotti with loan-

sharking money, were arrested in December 1996,

and were incarcerated for many years thereafter.” Jd.

at 288-89.

The government contended that the statute of

limitations as to the substantive RICO conduct had

not expired because it was entitled to a presumption

that Yannotti’s involvement in the charged conspiracy

continued until he demonstrated his withdrawal

from, or abandonment of, that conspiracy, citing

United States v. Spero, 331 F.3d 57, 61 (2d Cir. 2003).

The district court disagreed, finding that this pre-

sumption could not continue indefinitely and that the

government failed to demonstrate that any of the

conspirators engaged in loansharking on any date

“ As the district court noted, it was undisputed by the

parties that the other predicate acts alleged against Yannotti —

the conduct involving Arena, Marenga, Sliwa and Tarantola —

fell outside of the statute of limitations. United States v. Yan-

notti, 415 F. Supp. 2d 280, 284 (S.D.N.Y. 2005).

App. 12

close to the limitations period. Yannotti, 415

F. Supp. 2d at 290. The court concluded that “[gliven

the facts presented here — the length of the presump-

tion, the proof that the co-conspirators in all likeli-

hood could not have continued with their illegal

activities, and the absence of proof regarding Yan-

notti’s loansharking activities within the limitations

period ... — the presumption alone is insufficient to

sustain a conviction.” Jd. at 291. For these reasons,

the district court dismissed Count One.’

However, the court denied Yannotti’s Rule 29(c)

motion as to Count Two charging him with participat-

ing in the RICO conspiracy. Yannotti argued that

because the predicate acts alleged against him fell

outside of the statute of limitations, the government

could not claim that he timely participated in the

conspiracy. The district court nevertheless deter-

mined that the evidence established that “the activi-

ties of the Gambino Organized Crime Family

continued into the limitations period[,] ... that

Yannotti was a member of the conspiracy” and that

there was no evidence that Yannotti withdrew from

the conspiracy. Jd. at 292 (citing United States v.

Persico, 832 F.2d 705, 713 (2d Cir. 1987) (“In order to

convict a defendant of RICO conspiracy, only an

agreement to commit two or more predicate acts,

rather than the acts themselves, need be proven.”

° Because the government does not appeal the dismissal of

Count One, we do not review the district court’s analysis of the

legal insufficiency of the trial evidence as to this count.

App. 13

(emphasis added))). The court found that the govern-

ment had offered sufficient proof that certain activi-

ties furthering the goals of the RICO conspiracy,

specifically the charged predicate acts of securities

fraud and construction industry extortion by other

members of the enterprise, continued through 2002

and that Yannotti was responsible for the conduct of

his co-conspirators. Jd. Thus, it held that Yannotti

was not entitled to a judgment of acquittal despite

not being charged himself with the actual commission

of timely racketeering acts.

The district court sentenced Yannotti in Novem-

ber 2006 and concluded that conduct which the jury

had not found proven by the government should,

nevertheless, be considered in calculating his appli-

cable Guidelines range. The court acknowledged that

the jury was unable to reach a verdict on the charges

surrounding the Sliwa assault and that it “was deeply

split on the issue with seven jurors out of twelve

believing that there was proof beyond a reasonable

doubt.” However, the court determined that because

one of the prosecution’s witnesses on this point was

credible and corroborated by another, only slightly

less credible, witness, Yannotti’s participation in the

attack on Sliwa was supported by a preponderance of

the evidence. Thus, Yannotti’s involvement in the

Sliwa activity could be considered relevant conduct

for sentencing purposes. Based on this finding, the

court calculated Yannotti’s offense level at 36 and his

App. 14

Criminal History Category at Level II, resulting in a

Guidelines range of 210 to 262 months.” It then

sentenced him to the statutory maximum of 240

months’ imprisonment, noting that Yannotti had been

a long-time associate of the Gambino Family and had

engaged in extensive illegal and violent conduct in

furtherance of that enterprise. This appeal followed.

DISCUSSION

Yannotti appeals his conviction and sentence on

various grounds. He maintains principally that the

evidence was not legally sufficient to establish his

conviction for RICO conspiracy, the district court

erred in admitting the contents of two intercepted

phone calls and allowing a witness to interpret those

phone calls, one of the racketeering acts alleged in

the indictment was improperly vague, and the district

court erred in rendering his sentence. We review de

novo a challenge to the sufficiency of the evidence and

“affirm if the evidence, when viewed in its totality

and in the light most favorable to the government,

would permit any rational jury to find the essential

° The district court calculated Yannotti’s base offense level

as 32 for the kidnaping of Sliwa pursuant to U.S.S.G. § 2A4.1(a).

It then enhanced the offense determination by four levels

pursuant to U.S. S.G. § 2A4.1(b)(2) because the victim sustained

life threatening bodily injury. After determining that the kidnap-

ing resulted in the higher offense level in comparison with the

other criminal conduct, the district court concluded that the

level 36 calculation should stand.

App. 15

elements of the crime beyond a reasonable doubt.”

United States v. Geibel, 369 F.3d 682, 689 (2d Cir.

2004). A defendant challenging his conviction on the

basis of the insufficiency of the evidence “bears a

heavy burden.” United States v. Henry, 325 F.3d 93,

103 (2d Cir. 2003). Evidentiary rulings are reviewed

for abuse of discretion. United States v. Taubman, 297

F.3d 161, 164 (2d Cir. 2002). A district court’s factual

findings are reviewed for clear error. United States v.

Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005). The

denial of a motion to dismiss the indictment is re-

viewed de novo. United States v. Yousef, 327 F.3d 56,

137 (2d Cir. 2003). Finally, we review a district court’s

sentence for its procedural and substantive reason-

ableness. See Gall v. United States, 128 S. Ct. 586,

594-97, 169 L. Ed. 2d 445 (2007); see also United

States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.

2006).

Yannotti first contends that the evidence support-

ing his conviction for participating in a RICO con-

spiracy was legally insufficient. He asserts that he

was not a member of the charged RICO conspiracy

which, he maintains, was defined by the pattern of

racketeering alleged in the indictment. Because there

was no evidence that Yannotti engaged in the two

timely acts of racketeering found proved by the jury —

App. 16

securities or construction industry fraud’ — and

because the sole racketeering act committed by him —

loansharking — fell outside the statute of limitations,

Yannotti maintains that the district court erred in

sustaining his RICO conspiracy conviction. He com-

plains that, as support for its denial of his Rule 29(c)

motion as to Count Two, the district court improperly

treated his alleged membership in the criminal

enterprise — the Gambino Family — as equivalent to

membership in the charged conspiracy. Because the

RICO conspiracy was limited to specific predicate acts

and involved conduct committed by Gambino Family

members to further their self-interests rather than

the affairs “of any cohesive Gambino family enter-

prise,” Yannotti argues that he should not be held

liable for the acts of his co-conspirators.

The government renews its argument that it is

entitled to the presumption, first articulated in

United States v. Spero, that once the existence of the

RICO conspiracy and Yannotti’s membership in that

conspiracy were established, Yannotti’s involvement

continued until he proved that he either withdrew

from the conspiracy or it terminated. See Spero, 331

F.3d at 61. Additionally, the government maintains

that even if we do not apply the Spero presumption,

the evidence established that Yannotti participated in

numerous racketeering activities attributable to the

* It is uncontested that this conduct occurred within the

limitations period.

App. 17

enterprise and any lack of Yannotti’s involvement in

the timely predicate acts alleged against his co-

conspirators is not dispositive of his connection to the

conspiracy.

In assessing Yannotti’s sufficiency challenge, we

are guided by precedent that undermines Yannotti’s

core argument that his conviction for RICO conspir-

acy cannot stand absent proof of his personal in-

volvement in a timely charged predicate act. We

discuss this precedent at the outset.

In United States v. Persico, we emphasized that

“the agreement proscribed by section 1962(d) is [a]

conspiracy to participate in a charged enterprise’s

affairs, not [a] conspiracy to commit predicate acts.”

832 F.2d at 713. To establish a RICO conspiracy, the

government must prove that a defendant agreed to

participate in the affairs of the enterprise through a

pattern of racketeering activity. However, in Salinas

v. United States, 522 U.S. 52, 118 S.Ct. 469, 139

L. Ed. 2d 352 (1997), the Supreme Court made clear

that to establish this pattern, the government need

not prove that the defendant himself agreed that he

would commit two or more predicate acts. See id. at

64 (noting that, although the RICO statute “broad-

ened conspiracy coverage by omitting the require-

ment of an overt act; it did not, at the same time,

work the radical change of requiring the Government

to prove [that] each conspirator agreed that he would

be the one to commit two predicate acts”). Indeed,

Salinas held that to be found guilty of RICO conspir-

acy, a defendant need only know of, and agree to, the

App. 18

general criminal objective of a jointly undertaken

scheme. See id. at 63; see also United States v. Cic-

cone, 312 F.3d 535, 542 (2d Cir. 2002) (stating that “a

conspirator charged with racketeering conspiracy

need not commit or even agree to commit the predi-

cate acts ... to be found guilty of the racketeering

conspiracy, for it suffices that he adopt[] the goal of

furthering or facilitating the criminal endeavor”

(internal citations and quotations marks omitted)).

It is well-settled that a conspirator need not be

fully informed about his co-conspirators’ specific

criminal acts provided that he agreed to participate

in the broader criminal conspiracy and the acts

evincing participation were not outside of the scope of

the illegal agreement. “A conspiracy may exist even if

a conspirator does not agree to commit or facilitate

each and every part of the substantive offense. The

partners in the criminal plan must agree to pursue

the same criminal objective and may divide up the

work, yet each is responsible for the acts of each

other.” Salinas, 522 U.S. at 63-64 (internal citation

omitted); see also United States v. Zichettello, 208

F.3d 72, 100 (2d Cir. 2000) (holding that “no rule”

requires “the government to prove that a [RICO]

conspirator knew of all criminal acts by insiders in

furtherance of the conspiracy” as lung as it shows

that defendant possessed knowledge of “the general

contours of the conspiracy”); United States v. Rastelli,

870 F.2d 822, 828 (2d Cir. 1989) (stating that a defen-

dant may agree to join a RICO conspiracy without

knowing the identities of “all the other conspirators”

App. 19

and without “full knowledge of all the details of the

conspiracy’).

With this precedent in mind, we reject Yannotti’s

argument that the evidence was insufficient to prove

his participation in the charged RICO conspiracy. The

government’s proof convincingly established that the

Gambino Crime Family was an enterprise whose

members routinely conducted its affairs through a

nearly limitless range of racketeering activities,

including kidnaping, extortion, loansharking, and

fraud. Yannotti does not dispute his membership in

the Gambino Family. Rather, he asserts that the

government’s proof of his mid-1990s involvement in

loansharking on behalf of the Gambino Family was

insufficient to prove his agreement to the broader

pattern of racketeering. The evidence, viewed in the

light most favorable to the government, supports a

different conclusion.

Specifically, the evidence showed that Yannotti

was formally inducted as a “soldier” into the Gambino

Crime Family at a ceremony in which inductees

pledged themselves to use any means necessary to

further the objectives of the Family. A reasonable jury

could certainly conclude that when Yannotti agreed to

participate in the affairs of the Gambino Family, he

was by no means limiting that participation to his

own loansharking. Instead, it could have found that

Yannotti had agreed that he, and others, would

engage in a jointly undertaken pattern of racketeer-

ing activities reaching all of the predicates estab-

lished by the government. Thus, the fact that the

App. 20

government did not prove Yannotti’s specific knowl-

edge of or participation in each predicate act con-

ducted by other members of the Gambino Family does

not undermine the sufficiency of the evidence estab-

lishing his conviction as to the charged RICO con-

spiracy. See Salinas, 522 U.S. at 63-64; see also

Ciccone, 312 F.3d at 542; Zichettello, 208 F.3d at 99-

100.

To the extent Yannotti maintains that, even if the

government proved his involvement in the charged

conspiracy, the statute of limitations required proof of

his specific agreement to commit predicate acts

within five years of indictment, he conflates our

precedent with respect to substantive RICO and

RICO conspiracy. Although a “substantive RICO

charge is barred by limitations as to any defendant

unless that defendant committed a predicate act

within the five-year limitations period,” a RICO

conspiracy “is complete, thus commencing the run-

ning of the five-year statute of limitations, only when

the purposes of the conspiracy have either been

accomplished or abandoned.” United States v. Salerno,

868 F.2d 524, 534 (2d Cir. 1989) (emphasis in origi-

nal). Accordingly, even if a defendant engaged in

predicate conduct that occurred outside of the statute

of limitations, that defendant remains liable for RICO

conspiracy unless the evidence shows that the con-

spiracy concluded or he withdrew from that conspir-

acy more than five years before the indictment. See

id.; Persico, 832 F.2d at 713. This is because once the

government meets its burden of proof to establish a

App. 21

RICO conspiracy, “it is entitled to a presumption that

the conspiracy continued until [the] defendant dem-

onstrate[s] otherwise.” United States v. Spero, 331

F.3d at 61.

Yannotti relies on our dicta in a footnote in

United States v. Bruno, 383 F.3d 65 (2d Cir. 2004) to

suggest that Spero does not control because his

association with the Gambino Family, standing alone,

is insufficient to toll the statute of limitations. In

Bruno, we did not reach the issue of “what implica-

tions a defendant’s continued membership in an

ongoing organized crime family may have on the

statute of limitations for a RICO conspiracy charge.”

Id. at 81 n.10. Bruno involved a count charging the

defendant with a substantive RICO violation in which

four of the five racketeering acts were committed

outside of the limitations period and the defendants’

conviction under the only timely act was unsupported

by the evidence. Jd. at 81. Here, however, the securi-

ties fraud and construction extortion conspiracies

established the charged RICO conspiracy’s continua-

tion well into the limitations period, and Yannotti

does not challenge the evidence proving those predi-

cates. Further, for the reasons just discussed, the

evidence permitted a reasonable jury to conclude that

these timely predicate acts by co-conspirators fell

within the broad pattern of racketeering activity

through which Yannotti agreed that he and others

would conduct the affairs of the enterprise. Under

these circumstances, and in the absence of any evi-

dence of Yannotti’s timely withdrawal, we conclude

App. 22

that the statute of limitations does not preclude

Yannotti’s conviction for RICO conspiracy.

II.

Yannotti also complains that the district court

improperly admitted his phone conversations because

the government’s original wiretap application did not

specifically name him as a target. As previously

noted, although the government was authorized to

intercept communications on a cell phone belonging

to Corozzo, that authorization did not specifically

identify Yannotti. The government intercepted two

calls in which Yannotti discussed his loansharking

activities. Yannotti maintains that this evidence,

which he argued was inadmissible, served as the

government’s sole proof connecting him to the predi-

cate act alleging loansharking.

Title III of the Omnibus Crime Control and Safe

Streets Act of 1968 provides for court-ordered inter-

ceptions of communications. 18 U.S.C. § 2518. The

statute allows a court to authorize a wiretap “if it

determines, on the basis of the facts submitted by the

applicant, that there is probable cause to believe (1)

that an individual was committing, had committed, or

is about to commit a crime; (2) that communications

concerning that crime will be obtained through the

wiretap; and (3) that the premises to be wiretapped

were being used for criminal purposes or are about to

be used or owned by the target of the wiretap.”

United States v. Diaz, 176 F.3d 52, 110 (2d Cir. 1999).

App. 23

Intercepted communications are inadmissible if they

were “unlawfully intercepted,” intercepted pursuant

to an authorization or approval that is “insufficient

on its face,” or intercepted not in conformity “with

the order of authorization or approval.” 18 U.S.C.

§ 2518(10)(a). “In reviewing a ruling on a motion to

suppress wiretap evidence, we accord deference to the

district court.” Because our role as an appeals court

in reviewing the issuance of a wiretap order “is not to

make a de novo determination of sufficiency as if it

were a district judge, but to decide if the facts set

forth in the application were minimally adequate to

support the determination that was made.” United

States v. Miller, 116 F.3d 641, 663 (2d Cir. 1997)

(internal quotation marks and brackets omitted)

(alterations and omissions in original).

Given this deference, we find no error in the

admission of the conversations. The affidavit in

support of the application did not solely request the

interception of communications made to and by

Corozzo. Instead, it named Corozzo, six alleged asso-

ciates and members of the Gambino family, and

“others as yet unknown.” In authorizing the intercep-

tions, the court determined that probable cause

existed to believe that not only Corozzo, but also

other unnamed targets, would use the cellular phone

to engage in illegal activities. The government is not

required to specify in the application each individual

whose conversations may be intercepted. Where, as

here, the government is investigating numerous

members of an extensive criminal conspiracy, the

App. 24

government may not be able to identify in advance

each person who will use the phone for criminal

purposes. In United States v. Figueroa, we held that

“fa]t the outset of a wiretap, surveillance under an

order that authorizes interception of calls of ‘others as

yet unknown’ is not strictly limited to only those who

are specifically named in the authorizing order either

as probable violators or as possible interceptees.”;

Instead, “[t]he agents are required only to make

reasonable efforts to minimize their interceptions in

light of all the relevant circumstances.” 757 F.2d 466,

473 (2d Cir. 1985). Here, the order limited intercep-

tion to conversations which addressed conspiratorial

activities and terminated “upon the attainment of

authorized objectives” or at the end of the thirty days;

thus, it did not, as Yannotti avers, give the govern-

ment unfettered discretion to intercept phone calls

unrelated to the alleged conspiracy. Moreover, the

order also required the government to submit regular

reports to the supervising judge “showing what

progress has been made toward achievement of the

authorized objectives and the need for continued

interception.” These restrictions were adequate

safeguards that foreclosed the possibility that the

order could be transformed into a general warrant.

Additionally, the government had no reason to

believe that Yannotti would indefinitely maintain

possession of the cell phone. Consequently, it acted

reasonably in suspecting that Corozzo would return

to Florida and re-claim his phone. Regardless, as the

government stated in its progress report, it suspected

App. 25

that Yannotti’s intercepted conversation indicated

that he had used the phone in furtherance of the

criminal activity identified in the initial application.

Thus, as the district court reasonably found, “al-

though Corozzo no longer possessed the phone, there

was probable cause to believe that it remained an

instrumentality of the alleged conspiracy.” Yannotti,

399 F. Supp. 2d at 273. Under these circumstances,

we agree with the district court’s conclusion that the

government did not exceed the wiretap authorization

in its continued interception of Yannotti’s calls.

III.

Yannotti next asserts that Andrew DiDonato, a

government witness, provided inadmissible opinion

testimony which did not conform to the definition of

lay testimony under Federal Rule of Evidence 701

because it was based on DiDonato’s_ specialized

knowledge as a member of the Gambino Crime Fam-

ily. DiDonato was allowed to testify about comments

made by Yannotti during the two intercepted phone

conversations. Yannotti complains that the govern-

ment did not seek to admit this testimony as expert

opinion testimony under Rule 702 and that he was

not afforded the protections provided by Federal

Rule of Criminal Procedure 16(a)(1)(G). The govern-

ment, on the other hand, claims that DiDonato was

not an expert as contemplated by Rule 702 because

he acquired his particular knowledge about loan-

sharking through experience as a member of the

App. 26

conspiracy, rather than through specialized study or

training.

Under Rule 701, a lay witness’ testimony “in the

form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based

on the perception of the witness, (b) helpful to a clear

understanding of the witness’ testimony or the de-

termination of a fact in iss*-e, and (c) not based on

scientific, technical, or other specialized knowledge

within the scope of Rule 702.” Fed. R. Evid. 701. A

rational perception is one involving “first-hand

knowledge or observation.” United States v. Rea, 958

F.2d 1206, 1215 (2d Cir. 1992). The advisory note to

the 2000 Amendments to Rule 701 provides that

“most courts have permitted the owner or officer of a

business to testify to the value or projected profits of

the business, without the necessity of qualifying the

witness as an... expert. ... Such opinion testimony

is admitted not because of experience, training or

specialized knowledge within the realm of an expert,

but because of the particularized knowledge that the

witness has by virtue of his or her position in the

business.” Fed. R. Evid. 701, advisory committee’s

note. In contrast under Rule 702, a witness purport-

ing to offer expert opinion testimony must be first

qualified to offer this testimony on the basis of his

knowledge, skill, or education. Fed. R. Evid. 702.

Although Yannotti challenges the admissibility of

DiDonato’s testimony under Rule 701 only on the

ground that it derived from specialized knowledge in

contravention of the third requirement under Rule

App. 27

701, we conclude that DiDonato’s testimony easily

met both the first and second requirements under

Rule 701, which are that the testimony be “rationally

based on the perception of the witness” and “helpful

to a clear understanding of the witness’ testimony or

the determination of a fact in issue.” Jd.

First, DiDonato’s testimony was rationally based

on his own perception because it derived from his

direct participation in the loansharking activities of

the charged enterprise, not on participation in the

loansharking activities of some unrelated criminal

scheme. Second, there is little question that DiDo-

nato’s testimony was helpful to the jury. As we have

explained in another context, individuals engaging in

illicit activities rarely describe their transactions in

an open or transparent manner and the government

may call witnesses to provide insight into coded

language through lay opinion testimony. See United

States v. Garcia, 291 F.3d 127, 139 (2d Cir. 2002). The

conversation between Yannotti and the individual

° This distinction applies equally to evaluating the admissi-

bility of agent testimony. An undercover agent whose infiltration

of a criminal scheme has afforded him particular perceptions of

its methods of operation may offer helpful lay opinion testimony

under Rule 701 even as to co-conspirators’ actions that he did

not witness directly. By contrast, an investigative agent who

offers an opinion about the conduct or statements of conspirators

based on his general knowledge of similar conduct learned

through other investigations, review of intelligence reports, or

other special training, does not meet the requirements of Rule

701 and must qualify as an expert pursuant to Rule 702. See

United States v. Garcia, 413 F.3d 201, 216 (2d Cir. 2005).

App. 28

identified by the government as “Andy” was cryptic

and required interpretation. As discussed earlier,

DiDonato explained that the individual collecting the

debts informed the loansharking victim about the

amount of the weekly interest by referring to a single

number or “points.” DiDonato stated that in the

phone call with “Andy,” Yannotti was seeking exorbi-

tant amounts of interest at regular intervals ranging

from two hundred to six hundred dollars. Given its

discretion in such matters, the district court did not

err in allowing DiDonato to provide interpretative

testimony because the “language on the tape [was]

... punctuated with ambiguous references to events

that are clear only to the conversants.” United States

v. Alello, 864 F.2d 257, 265 (2d Cir. 1988) (internal

quotation marks and alterations omitted). Accord-

ingly, we find that DiDonato’s testimony met the

requirements of Rule 701 and was properly admitted

as lay opinion testimony.

Mindful of making explicit the requirements for

lay witness testimony in comparison to expert testi-

mony, we now conclude that where a witness derives

his opinion solely from insider perceptions of a con-

spiracy of which he was a member, he may share his

perspective as to aspects of the scheme about which

he has gained knowledge as a lay witness subject to

Rule 701, not as an expert subject to Rule 702. See

United States v. Rigas, 490 F.3d 208, 225 (2d Cir.

2007) (concluding the district court did not abuse its

discretion in allowing a lay witness to testify about an

organization’s fraudulent financial conduct where

App. 29

that witness made first-hand observations and was

well aware of the organization’s financial misstate-

ments). No different conclusion is mandated by Rule

701’s requirement that a lay opinion must be the

product of “reasoning processes familiar to the aver-

age person in everyday life,” and not “scientific,

technical, or other specialized knowledge.” United

States v. Garcia, 413 F.3d 201, 216-17 (2d Cir. 2005).

While we do not profess that loansharking is an

activity about which the average person has knowl-

edge, we find that the opinion DiDonato reached from

his own loansharking experience derived from a

reasoning process familiar to average persons. In

short, his opinion did not depend on the sort of spe-

cialized training that scientific witnesses or statisti-

cians rely upon when interpreting the results of their

own experiments or investigations.

IV.

Yannotti renews his pre-trial claim that subparts

(b) and (c) of Racketeering Act Seven of the indict-

ment’ — charging him with financing extortionate

° The relevant portions of the indictment charged the

following:

(b) Conspiracy to Make Extortionate Extensions

of Credit: From in or about 1993, up through and in-

cluding in or about 2002, in the Southern District of

New York, the Eastern District of New York, and

elsewhere, Michael Yannotti... and others known and

unknown, unlawfully, willfully, and knowingly com-

bined, conspired, confederated, and agreed together

(Continued on following page)

App. 30

extensions of credit and conspiring to make and

collect extortionate extensions of credit — violated

Federal Rule of Criminal Procedure 7(c) because they

did not contain sufficient factual allegations. He

maintains that those portions of the racketeering act

failed to allege sufficient facts and included overly

broad temporal and geographic spans by describing

conspiratorial conduct occurring in both the Southern

and Eastern Districts of New York, and elsewhere

with unnamed co-conspirators. The district court

denied his motion to dismiss the racketeering act,

citing language from United States v. Walsh, 194 F.3d

37, 44 (2d Cir. 1999) and concluded that the indict-

ment adequately “trackled] the language of the

statute ... and state[d] the time and place (in ap-

proximate terms) of the alleged crime.”””

“An indictment is sufficient when it charges a

crime with sufficient precision to inform the defen-

dant of the charges he must meet and with enough

and with each other to make extortionate extensions

of credit; ... (c) From in or about 1993, up through

and including in or about 2002, in the Southern Dis-

trict of New York, the Eastern District of New York,

and elsewhere, Michael Yannotti ... and others

known and unknown, unlawfully, willfully, and know-

ingly combined, conspired, confederated, and agreed

together and with each other to participate in the use

of extortionate means to collect and attempt to collect

extensions of credit.

‘° Yannotti’s pre-trial motion related to the inadequacy of

the allegations provided in Racketeering Act Ten. The govern-

ment subsequently renumbered this Act as Seven.

App. 31

detail that he may plead double jeopardy in a future

prosecution based on the same set of events.” United

States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.

1992). Moreover, “an indictment need do little more

than to track the language of the statute charged and

state the time and place (in approximate terms) of the

alleged crime.” United States v. Alfonso, 143 F.3d 772,

776 (2d Cir. 1998). Federal Rule of Criminal Proce-

dure 7(c) requires only that an indictment be “a plain,

concise, and definite written statement of the essen-

tial facts constituting the offense charged.”

The contested portions of the racketeering act

provided Yannotti with sufficient notice of the allega-

tions regarding loansharking so that he could defend

against those allegations in the instant prosecution

and in any future prosecutions. Additionally, the

government provided Yannotti with discovery, includ-

ing the tapes, records, and names of participants

associated with the loansharking conspiracy. Yannotti

was well aware of the government’s theory of the

loansharking conspiracy as well as the identities of

any victims and co-conspirators, even if that informa-

tion was not pled in the indictment. Moreover, despite

Yannotti’s contentions, Racketeering Act Seven makes

clear the nature of the criminal conduct, the time

span, and the location where this conduct occurred.

Since Rule 7(c) requires no more, we find that the

allegations in the indictment are sufficient.

App. 32

Finally, Yannotti challenges the sentence imposed

by the district court as unreasonable because it was

based on the court’s unsubstantiated finding that he

committed the kidnaping and attempted murder of

Curtis Sliwa alleged in Racketeering Act One. The

jury found that the government had not proven

Yannotti’s involvement in Sliwa’s attempted murder,

but could not agree on whether the government had

proven his participation in the conspiracy to kidnap

or the kidnaping of Sliwa. The jury also found un-

proven all of the other charged racketeering acts with

the exception of Racketeering Act Seven — the loan-

sharking conspiracy.

In calculating the sentence under the now advi-

sory Sentencing Guidelines, the Probation Officer

determined in the Presentence Investigation Report

that Yannotti’s base offense level for his racketeering

conspiracy conviction was 19 pursuant to U.S.S.G.

§ 2E1.1(a)(1), leaving to the discretion of the district

court any application of relevant conduct adduced at

trial. The Probation Officer further calculated his

Guidelines range as 37-46 months’ imprisonment and

recommended a sentence of 41 months. During the

sentencing proceeding, in response to the court’s

question about the impact of relevant conduct on

Yannotti’s sentence, defense counsel requested that

conduct found unproven by the jury not be reviewed

by the court. The government retorted that all con-

duct presented at trial could be considered, given the

credibility of its witnesses as well as the multitude of

App. 33

evidence established concerning Yannotti’s participa-

tion in the Sliwa kidnaping. The district court ulti-

mately found that this activity, while not proved to

the satisfaction of a unanimous jury, had nonetheless

been established by a preponderance of the evidence

and could be factored into Yannotti’s sentence as

relevant conduct pursuant to U.S.S.G. § 1B1.3.

Yannotti contends that procedural error occurred

in the sentencing court’s approach. He argues that

the jury’s finding of his participation in the RICO

conspiracy did not authorize the court, when deter-

mining his Sentencing Guidelines range, to place any

weight on his involvement in the Sliwa assault.

Moreover, he challenges the court’s employment of a

preponderance of the evidence, as opposed to a rea-

sonable doubt, standard in finding him responsible

for the Sliwa assault. In support, he points to

U.S.S.G. § 1B1.2(d) which provides that a “conviction

on a count charging a conspiracy to commit more

than one offense shall be treated as if the defendant

had been convicted on a separate count of conspiracy

for each offense that the defendant conspired to

commit.” Yannotti argues that, in light of this provi-

sion, his Guidelines range for participation in a RICO

conspiracy should be calculated based only on predi-

cate conduct that a fact-finder found him to have

engaged in beyond a reasonable doubt. We disagree

with Yannotti on this issue of first impression in our

circuit.

Yannotti’s argument depends on a construction of

U.S.S.G. § 1B1.2(d) that would require each predicate

App. 34

act alleged as part of a RICO conspiracy to be treated

as a separate object of the criminal agreement to be

factored into a Sentencing Guidelines calculation only

if that act was proved beyond a reasonable doubt.

However, he improperly assumes that multiple rack-

eteering predicates can transform a RICO conspiracy

into the multi-object conspiracy referenced in

U.S.S.G. § 1B1.2(d).

As Yannotti acknowledges, the RICO conspiracy

with which he was charged had only one object — to

conduct or participate in the affairs of the charged

enterprise, the Gambino Crime Family, through a

pattern of racketeering. See 18 U.S.C. § 1962(c), (d).

While the intended pattern of this conspiracy may

have involved a variety of criminal conduct, including

construction fraud, loansharking, kidnaping, and

attempted murder, the underlying objective of the

conspiracy remained the singular one proscribed by

§ 1962(c). Indeed, to secure Yannotti’s conviction for

RICO conspiracy, the government was not required to

prove the actual commission of a single predicate act

by Yannotti or any other conspirator. See Salinas, 522

U.S. at 64 (noting that “[t]he RICO conspiracy stat-

ute, § 1962(d), broadened conspiracy coverage by

omitting the requirement of an overt act”). The un-

derlying predicate acts are relevant merely to estab-

lish the existence of the charged agreement among

members of the conspiracy to conduct the affairs of

the enterprise through a pattern of racketeering

App. 35

conduct" and do not constitute separate criminal

objectives. See United States v. Corrado, 227 F.3d 528,

542 (6th Cir. 2000). Because overt acts are not dis-

tinct offenses that must be proven to sustain a RICO

conspiracy conviction, and the RICO conspiracy

charged in this case is appropriately viewed as single-

object conspiracy, we now join the First and Sixth

Circuits in concluding that U.S.S.G. § 1B1.2(d) is

" Although the same predicate acts may be charged with

respect to both substantive and RICO conspiracy counts, the

jury inquiry may be different. In deciding whether a defendant

is guilty of substantive RICO, the jury identifies predicate acts

committed by that defendant to determine if he has himself

conducted the affairs of the enterprise through a pattern of

racketeering. However, in deciding whether a defendant is guilty

of RICO conspiracy, the jury identifies whether the charged

predicate acts were, or were intended to be, committed as part of

that conspiracy. Thus, the jury must consider these acts to

determine whether the co-conspirators, not solely the defendant,

agreed to conduct the affairs of the enterprise through a pattern

of racketeering. As stated previously, to prove a defendant’s

membership in the agreement, the government need not prove

that the defendant committed or agreed to commit any of the

charged predicate acts as long us the government proves that he

participated in some manner in the overall objective of the

conspiracy. See Salinas, 522 U.S. at 64; see also L. Sand, et al.

Modern Federal Jury Instructions, (Criminal) Inst. 52-32 (2000)

(providing that jury be instructed as to predicate acts charged in

RICO conspiracy: “Again, the government must prove that two

of these acts were, or were intended to be, committed as part of

the conspiracy, although it need not prove that defendant

committed or agreed to commit any of these acts as long as the

government proves that defendant participated in some manner

in the overall objective of the conspiracy.”).

App. 36

inapplicable.” See Corrado, 227 F.3d at 541; United

States v. Carrozza, 4 F.3d 70, 79 (1st Cir. 1993). Thus,

a sentencing court may consider predicate acts as

relevant conduct under U.S.S.G. §1 because their

commission need not be proven beyond a reasonable

doubt.

Given our finding that the predicate acts alleged

against Yannotti do not require proof beyond a rea-

sonable doubt to sustain his RICO conspiracy convic-

tion, the kidnaping conduct was properly viewed by

the district court as relevant conduct. We have consis-

tently emphasized that a district court may consider

all information adduced during trial, including ac-

quitted conduct, when sentencing a defendant. See

United States v. Vaughn, 430 F.3d 518, 526-27 (2d Cir.

2005). While a fact-finder is required to find guilt

beyond a reasonable doubt, the sentencing court may

find facts relevant to sentencing by the lower prepon-

derance of the evidence standard. Jd. Therefore, there

was no clear error in the court concluding that based

on a preponderance of the evidence, Yannotti’s in-

volvement in the assault on Sliwa could be taken into

account in sentencing.

The district court was in the unique position to

consider the credibility of the witnesses and to

conclude, as it did, that two of the government’s

“In so holding, we reject the approach taken by the

Eleventh Circuit in United States v. Farese, 248 F.3d 1056, 1060-

61 (11th Cir. 2001).

App. 37

witnesses had been particularly credible in their

testimony about Yannotti’s participation in the Sliwa

kidnaping. The court appropriately considered the

Guidelines and the factors specified under 18 U.S.C.

§ 3553(a) and sentenced Yannotti within the Guide-

lines range. We conclude that Yannotti’s sentence was

both procedurally and substantively reasonable.

CONCLUSION

The judgment of the district court is affirmed.

App. 38

UNITED STATES OF AMERICA, - against -

MICHAEL YANNOTTI, Defendant.

04 CR 690 (SAS)

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

457 F. Supp. 2d 385;

2006 U.S. Dist. LEXIS 51046

July 24, 2006, Decided

July 24, 2006, Filed

COUNSEL: For Defendant: Diarmuid White, Esq.,

White & White, New York, New Yok

For the Government: Victor L. Hou, Miriam Rocah,

Assistant United States Attorneys, New York, New

York.

JUDGES: Shira A. Scheindlin, U.S.D.J.

OPINION By: Shira A. Scheindlin

OPINION

OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.:

App. 39

I. INTRODUCTION

By letters dated March 20, 2006 and May 8,

2006,’ defendant Michael Yannotti moves for recon-

sideration of this Court’s December 30, 2005 Opinion

and Order (“Opinion”) denying his motion for a judg-

ment of acquittal on Count Two of Indictment S1 04

CR 690 (SAS) (the “Indictment”). Alternatively, in the

event Yannotti’s motion for reconsideration is denied,

he moves for bail pending appeal. For the following

reasons, Yannotti’s motion for reconsideration is

denied as is his motion for bail pending appeal.

A. The Verdict

On September 20, 2005, the jury unanimously

found proven one of four predicate acts with which

Yannotti was charged — conspiracy to make extortion-

ate extensions of credit and collect extensions of

credit through extortionate means in violation of the

Racketeering Influenced and Corrupt Organizations

Act (“RICO”). This was the fourth racketeering act

(Racketeering Act #7) in support of the RICO Sub-

stantive charge (Count One). The jury was unable to

reach a verdict on Count One, however, having found

the second and third predicate acts’ not proven and

' These letters are from Diarmuid White, Yannotti’s trial

attorney.

* The second predicate act charged Yannotti with conspiracy

to murder and the murder of Robert Arena as well as the

murder of Thomas Maranga. The third predicate act charged

Yannotti with the attempted murder of Robert Tarantola.

App. 40

having deadlocked on the first predicate act.* Yannotti

was convicted of Count Two, RICO Conspiracy.’

B. The Rule 29 Motion

Yannotti then moved for a judgment of acquittal

on both RICO counts pursuant to Federal Rule of

Criminal Procedure 29 (“Rule 29”). In an Opinion and

Order dated December 30, 2005 (the “Opinion”),

Yannotti’s motion was granted as to Count One’ but

denied as to Count Two.” Yannotti’s argument in

* The first predicate act charged Yannotti with conspiracy to

kidnap, kidnaping, and the attempted murder of Curtis Sliwa, a

radio talk show host who publicly criticized John Gotti, Sr., the

father of co-defendant John A. Gotti, Jr. (“Gotti”).

* Count Two charged that defendants conspired to conduct

and participate, directly and indirectly, in the conduct of the

affairs of the enterprise, the Gambino Organized Crime Family,

through a pattern of racketeering activity set forth in para-

graphs fourteen through twenty-four of the Indictment as

Racketeering Acts One through Eleven. See Indictment 4 26.

° See United States v. Yannotti, 415 F. Supp. 2d 280, 291

(S.D.N.Y. 2005) (“There is simply no evidence in this record that

any of the alleged co-conspirators engaged in loansharking

during the limitations period. I therefore conclude that no

reasonable jury could have found that Yannotti participated in

that conspiracy after July 21, 1999. Count One of the Indictment

is therefore dismissed pursuant to Rule 29.”).

* See id. at 292 (“Viewed in the light most favorable to the

Government, the Government proved beyond any reasonable

doubt that the activities of the enterprise [the Gambino Organ-

ized Crime Family], through the pattern of racketeering activity

charged in the Indictment, continued well into the limitations

period.”).

App. 41

support of a judgment of acquittal on the RICO

Conspiracy count can be summarized as follows:

Yannotti argues that while the charged

enterprise is the Gambino Organized Crime

Family, the charged conspiracy is the agree-

ment to participate in the conduct of the af-

fairs of that enterprise through a pattern of

racketeering activity, and that the enterprise

and the conspiracy cannot be the same. Yan-

notti further argues that it is not enough for

the Government to establish that the defen-

dant continued to act as a member of the al-

leged organized crime family in order to

satisfy the statute of limitations; the Gov-

ernment must establish that the defendant

agreed to participate in the enterprise’s af-

fairs through the particular pattern of rack-

eteering activity charged in the [I]ndictment.

Finally, Yannotti concludes that if the evi-

dence shows that he neither committed a

charged predicate act within the five-year

limitations period nor that he agreed to par-

ticipate in the enterprise’s affairs through

the particular pattern of racketeering activ-

ity charged in the Indictment during that pe-

riod, then the statute of limitations is not

satisfied as to the RICO conspiracy count as

well as the RICO substantive count.’

” Yannotti, 415 F. Supp. 2d at 291-92 (quotations, citations

and footnotes omitted).

App. 42

Despite the Government’s failure to prove that

the loansharking conspiracies charged as predicate

acts in the RICO Substantive charge continued into

the limitations period,’ “there was substantial evi-

dence that the conspiracy to commit extortion in the

construction industry and the conspiracy to commit

securities fraud extended well into the limitations

period.”” Having failed to withdraw from the over-

arching conspiracy to participate in the affairs of the

Gambino Crime Family, Yannotti was held responsi-

ble for these activities even though he was not

charged with these predicate acts.”

C. The Motion for Reconsideration

Yannotti now moves for reconsideration of his

Rule 29 motion with regard to Count Two of the

Indictment. In support of reconsideration, Yannotti

alleges that this Court overlooked two Second Circuit

cases, United States v. Labat'' and United States v.

Bruno,” which, he argues, invalidate this Court’s

decision upholding the RICO Conspiracy conviction.

Despite the prohibition on repetition, Yannotti restates

* See id. at 292 (“There was more than sufficient evidence at

trial to support the finding that the activities of the Gambino

Organized Crime Family continued into the limitations period

and that Yannotti was a member of that conspiracy.”).

* Id.

" 905 F.2d 18 (2d Cir. 1990).

* 383 F.3d 65 (2d Cir. 2004).

App. 43

the following argument, first presented in his Rule 29

motion:

[T]here was no evidence here that Yan-

notti was part of any RICO conspiracy whose

objective was to conduct the affairs of an en-

terprise through a pattern of racketeering

activity that included the securities fraud

conspiracy and construction industry extor-

tion conspiracy alleged to have been commit-

ted by codefendants, even if he had once been

part of a narrower RICO conspiracy, e.g., one

relating to loansharking. Consequently, those

racketeering acts could not have satisfied the

statute of limitations as to Yannotti.

In sum, ... if the evidence shows, as it does, that

Yannotti neither committed a charged predicate act

within the five-year limitations period nor was part of

an agreement during that period to participate in the

enterprise’s affairs through the particular pattern of

racketeering activity charged in this indictment, then

the statute of limitations was not satisfied as to the

RICO conspiracy count as well as the RICO substan-

tive count.”

Il. LEGAL STANDARD

“The standard to be applied in deciding reconsid-

eration motions in criminal cases has not been clearly

'S 5/8/06 Letter from Diarmuid White to the Court at 8

(emphasis in original).

App. 44

established. Neither the Federal Rules of Criminal

Procedure nor the Local Criminal Rules expressly

provide for reconsideration motions.” However,

motions for reconsideration in criminal cases have

traditionally been allowed within the Second Cir-

cuit.” In deciding such motions, district courts have

applied the standard found in Rule 6.3 of the Local

Civil Rules of the United States District Courts for

the Southern and Eastern Districts of New York

- (“Local Rule 6.3”).”° Accordingly, Local Rule 6.3 will be

applied in deciding the instant motion."

‘* United States v. Mottley, 2003 U.S. Dist. LEXIS 15643,

No. 03 CR 303, 2003 WL 22083420, at *1 (S.D.N.Y. Sept. 9,

2003).

"’ See United States v. Clark, 984 F.2d 31, 33 (2d Cir. 1993)

(“In Healy [876 U.S. 75, 84 S. Ct. 553, 11 L. Ed. 2d 527 (1964)]

and Dieter [429 U.S. 6, 97 S. Ct. 18, 50 L. Ed. 2d 8 (1976)] the

Supreme Court permitted the Government to seek reconsidera-

tion of a district court ruling dismissing an indictment in a

criminal case despite the absence of any provision explicitly

authorizing such reconsideration.”). In so doing, the Supreme

Court relied upon “‘traditional and virtually unquestioned

practice.’” Dieter, 429 U.S. at 8 n.3 (quoting Healy, 376 U.S. at

79).

1672, No. S12 01 CR 74, 2004 WL 235211 (S.D.N.Y. Feb. 6,

2004); United States v. Greenfield, 2001 U.S. Dist. LEXTS 16628,

No. 01 CR 401, 2001 WL 1230538, at *1 (S.D.N.Y. Oct. 16, 2001)

(applying Local Rule 6.3 standard in the interests of justice).

'? Local Rule 6.3, Motions for Reconsideration or Re-

argument, provides, in pertinent part, as follows:

A notice of motion for reconsideration or re-

argument of a court order determining a motion shall

be served within ten (10) days after the entry of the

(Continued on following page)

App. 45

The purpose of Local Rule 6.3 is to “‘ensure the

finality of decisions and to prevent the practice of a

losing party examining a decision and then plugging

the gaps of a lost motion with additional matters.’”“

Accordingly, a motion for reconsideration under Local

Rule 6.3 will generally be denied unless “‘the moving

party can point to controlling decisions or data that

the court overlooked — matters, in other words, that

might reasonably be expected to alter the conclusion

reached by the court.’” '’ Local Rule 6.3 is “‘narrowly

construed and strictly applied so as to avoid repeti-

tive arguments on issues that have been considered

fully by the Court.’”” The decision whether to grant

court’s determination of the original motion, or, in the

case of a court order resulting in a judgment, within

ten (10) days after the entry of the judgment. There

shall be served with the notice of motion a memoran-

dum setting forth concisely the matters or controlling

decisions which counsel believes the court has over-

looked.

U.S. Dist. Ct. Rules S. & E.D.N.Y., Civil Rule 6.3.

LEXIS 6817, No. 95 Civ. 6469, 2005 WL 926904, at *1 (S.D.N-Y.

Apr. 21, 2005) (quoting Carolco Pictures, Inc. v. Sirota, 700

F. Supp. 169, 170 (S.D.N.Y. 1988)).

* In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003)

(quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.

1995)).

*” Hammer v. First UNUM Life Ins. Co., 2005 U.S. Dist.

LEXIS 3414, No. 01 Civ. 9307, 2005 WL 525445, at *2 (S.D.N-Y.

Mar. 7, 2005) (quoting DelleFave v. Access Temporaries, Inc., No.

99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001)).

See also Koehler v. Bank of Bermuda Ltd., 2005 U.S. Dist.

LEXIS 8694, No. M18-302, 2005 WL 1119371, at *1 (S.D.NLY.

(Continued on following page)

App. 46

or deny a motion for reconsideration is within the

district court’s sound discretion.”

Ill. DISCUSSION

A. Timeliness

“Local Rule 6.3 may have been promulgated with

the intention that its application be limited to civil

cases.”” Nonetheless, “even if Local Rule 6.3 is not

applicable to criminal cases ... the standard for

reconsideration underlying Rule 6.3 should apply to

criminal cases.”” Under Local Rule 6.3, a motion for

reconsideration “shall be served within ten (10) days

after the entry of the court’s determination of the

original motion.” The purpose of this ten-day window

period is to ensure some measure of finality, an

interest that underlies Local Rule 6.3.”

May 10, 2005) (stating that “a motion for reconsideration cannot

assert new arguments or claims which were not before the court

on the original motion”); Pannonia Farms, Inc. v. USA Cable,

2004 U.S. Dist. LEXIS 15737, No. 03 Civ. 7841, 2004 WL

1794504, at *3 (S.D.N.Y. Aug. 10, 2004) (reconsideration “is not

occasion for a party to craft new and previously untested legal

theories”).

*" See Colodney v. Continuum Health Partners, Inc., 2004

U.S. Dist. LEXIS 16425, No. 03 Civ. 7276, 2004 WL 1857568, at

*1 (S.D.N-Y. Aug. 18, 2004).

2 Delvi, 2004 U.S. Dist. LEXIS 1672, 2004 WL 235211, at

"2, oe,

” Id.

* See Carolco Pictures, 700 F. Supp. at 170.

App. 47

Although Yannotti’s Rule 29 motion was decided

on December 30, 2005, his motion for reconsideration

is dated March 20, 2006, almost three months later.

Yannotti did not cite any newly-decided cases in

support of his motion nor did he offer a credible

reason for his late filing. In fact, Yannotti provided no

excuse for the delay but simply stated, conclusively,

that “[t]his motion for reconsideration is not untimely,

as no time limit for such motions is prescribed by

rule.”” While this may be true technically, if Local

Rule 6.3 is indeed applicable to criminal cases, by

default or otherwise, the entire Rule is applicable,

including its time limit for filing. Yannotti’s motion

for reconsideration is therefore untimely and can be

dismissed on this basis alone. I will, however, address

the merits of Yannotti’s motion, if only to clarify my

earlier Opinion.

B. Cases in Support of Reconsideration

1. Labat

Yannotti takes issue with this Court’s citation to

Pinkerton v. United States“ for the proposition that

“(a] defendant is liable for the acts of his co-

conspirators if the acts were taken in furtherance of

the conspiracy and were a reasonably foreseeable

* 3/20/06 Letter from Diarmuid White to the Court, at 2

n.1l.

“ 328 U.S. 640, 646-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).

App. 48

consequence of the conspiratorial agreement.””

Yannotti correctly points out that the Pinkerton

theory of liability is not available where the jury has

not been instructed on that theory.” However, Yan-

notti ignores the preceding language in Labat which

states:

Under [the Pinkerton |] theory, a cocon-

spirator who does not directly commit a sub-

stantive offense may nonetheless be held

liable for that offense if it was committed by

another coconspirator in furtherance of the

conspiracy and was a reasonably foreseeable

consequence of the conspiratorial agree-

ment.”

The issue in Labat was the application of principles of

conspiracy law to uphold a guilty verdict against a

defendant for a substantive offense (cocaine posses-

sion) when the jury was never instructed as to such

an expanded theory of liability. With respect to the

RICO Conspiracy charged in Count Two, no Pinkerton

jury charge was required to hold Yannotti responsible

for the acts of his coconspirators in furtherance of

that conspiracy. That is a basic principle of conspiracy

*" Yannotti, 415 F. Supp. 2d at 292, n.70.

* See Labat, 905 F.2d at 23 (“[T]he Pinkerton theory is not

available on this appeal, for the jury was not instructed that it

could find Labat guilty of possession on this basis.”).

” Id. (brackets and emphasis added).

App. 49

law.” As the record reflects, the jury was charged

extensively about the law of conspiracy permitting it

to consider, as part of the charged conspiracy, acts

committed by co-conspirators, regardless of whether

Yannotti committed or agreed to commit such acts.”

The Opinion’s reference to Pinkerton, which was

admittedly erroneous, had no affect on the analysis or

outcome of that Opinion. Accordingly, Labat is not a

controlling decision for purposes of reconsideration.

2. Bruno

Yannotti also takes issue with this Court’s appli-

cation of United States v. Persico” to the statute of

limitations analysis. In Persico, the Second Circuit

stated:

Because the RICO conspiracy statute

does not require proof of an overt act, we be-

lieve that the crime of RICO conspiracy is not

complete until the purposes of the conspiracy

°° See Salinas v. United States, 522 U.S. 52, 64, 118 S. Ct.

469, 139 L. Ed. 2d 352 (1997) (stating the common-law principle

“that, so long as they share a common purpose, conspirators are

liable for the acts of their co-conspirators”). See also United

States v. Saavedra, 223 F.3d 85, 96 (2d Cir. 2000) (Cabrances, J.,

dissenting) (stating the uncontroversial principle that ‘“‘a

defendant is liable for the acts of a co-conspirator in furtherance

of the conspiracy’ ”) (quoting United States v. Naranjo, 14 F.3d

145, 147 (2d Cir. 1994)).

* See, ey., Trial Transcript (“Tr.”) at 5059, 5074-78, 5082-

83, 5106.

® 832 F.2d 705 (2d Cir. 1987).

App. 50

either have been accomplished or aban-

doned.”

The court further explained that “the agreement

proscribed by section 1962(d) is conspiracy to partici-

pate in a charged enterprise’s affairs, not conspiracy

to commit predicate acts.”“ Because the charged

enterprise’s affairs included construction industry

extortion, conspiracy to commit securities fraud, and

securities fraud,” the statute of limitations was

deemed satisfied as to Yannotti even though the

Government offered no proof that Yannotti himself

agreed to commit those racketeering acts.

Yannotti argues that this reasoning is suspect

given the following statement by the Second Circuit

in Bruno: “Here, because we reverse the RICO con-

spiracy convictions on other grounds, we do [not]

reach the issue, as we did not in Spero, of what

* Td. at 713.

* 2

*® For example, Louis Mariani, a co-defendant, was con-

victed of conspiracy to commit securities fraud during the period

1995 through 2002. See Presentence Report of Louis Mariani

q 23. Mariani was also convicted of two counts of substantive

securities fraud during the same time pcriod. See id. {9 24-25.

As for construction industry extortion, Michael DiLeonardo, a

cooperating witness, pled guilty in May 2003 to, inter alia,

extortion of various construction companies from 1980 through

November 2002, the time he began cooperating with the Gov-

ernment. See 8/24/05 Tr. at 2985-86. DiLeonardo testified that

from 1992 through June 2002, he remitted millions of dollars in

proceeds from construction industry extortion to Gotti. See id. at

2919, 2944.

App. 51

implications a defendant’s continued membership in

an ongoing organized crime family may have on the

statute of limitations for a conspiracy charge.””

According to Yannotti, “{hlad Persico meant that mere

continued membership in an ongoing organized crime

family satisfies the statute of limitations for a RICO

conspiracy charge, Bruno would have stated as much,

rather than passing on the question.””

What Yannotti fails to recognize is the context in

which the Bruno statement was made. In Bruno, the

defendants were charged with “violating the RICO

statute by conspiring to commit the predicate racket-

eering acts enumerated in Count II,” otherwise

referred to as “racketeering conspiracy.”” Count II

charged several defendants with “conducting the

affairs of the Genovese Family enterprise through a

pattern of racketeering activities, consisting of five

predicate acts.””” However, four out of the five enu-

merated racketeering activities were committed

outside the limitations period.“ Only the obstruction-

of-justice conspiracy (“Racketeering Act Four”) oc-

curred within the limitations period.*' But the convic-

tion for that conspiracy was reversed because the

* Bruno, 383 F.3d at 81, n.10.

* 3/20/06 Letter at 10.

* Bruno, 383 F.3d at 76.

° Td.

* See id. at 81, n.10.

" See id.

App. 52

evidence was legally insufficient to prove either the

second or third elements of a conspiracy to obstruct

justice.“ Thus, the Second Circuit was faced with a

conviction for RICO conspiracy where none of the

alleged predicate acts were proved to be committed by

anyone within the limitations period. It was within

this context that the Second Circuit declined to rule

on whether mere membership in an organized crime

family can support a RICO conspiracy conviction.

The limited relevance of the Bruno statement to

the unique fact pattern presented in that case is

further supported by the court’s reference to United

States v. Spero.* In Spero, “the Government alleged

that Spero, while conducting the affairs of the Bo-

nanno Organized Crime Family, conspired in viola-

tion of 18 U.S.C. §1962(d) to engage in five

specifically enumerated racketeering acts prohibited

by 18 U.S.C. § 1962(c).”“ However, it was uncontested

that Racketeering Acts #2-5 were all completed

before the five-year limitations period ended on May

25, 1994, while Racketeering Act #1, a loansharking

conspiracy, extended into May 1999." The defendant

argued that the Government failed to prove that any

of his loansharking activities took place after May 25,

“ See id. at 87-88.

“ 331 F.3d 57 (2d Cir. 2003).

“ Id. at 59.

“ See id. (“This allegation, if proven, would bring the

charged conduct within the limitations period.”).

App. 53

1994, thereby rendering the RICO conspiracy count

time-barred.”

The district court rejected defendant’s argument

on the basis of United States v. Salerno,*’ which in

turn relied on Persico. “The [district] [clourt under-

stood these cases to stand for the proposition that

once the Government established that Spero contin-

ued to act as a member of the Bonanno Organized

Crime Family after May 25, 1994, the RICO conspir-

acy with which he was charged was deemed to have

operated after that date as well-regardless of when

Racketeering Act # 1 took place.” The Second Circuit

found it unnecessary to pass on the district court’s

interpretation of Persico and Salerno, holding that

the defendant failed to rebut the presumption that

the loansharking conspiracy continued past May 25,

1994.“

The statements made in Bruno and Spero do not

undermine this Court’s interpretation of Persico.

Rather, these statements merely evince the Second

* See id.

” 868 F.2d 524, 534 (2d Cir. 1989) (holding that a RICO

conspiracy is complete only when the purposes of the conspiracy

have either been accomplished or abandoned).

“ Spero, 331 F.3d at 59-60. Here, Yannotti never claimed to

have withdrawn from the Gambino Crime Family. Rather,

Yannotti argued that the loansharking conspiracies with which

he was charged ended outside the statute of limitations. See,

e.g., Tr. at 4816-18, 5017-18.

“ See id. at 60.

App. 54

Circuit’s reluctance to hold that a RICO conspiracy

conviction may be supported by a defendant’s mere

membership in an organized crime family, without

the presence of any timely racketeering acts by any

co-conspirator. Bruno, therefore, is not a controlling

decision overlooked by this Court. In sum, the key is

whether any predicate acts were committed by any

co-conspirator within the RICO limitations period,

not the correlation of particular predicate acts to

particular defendants.” Here, predicate acts within

the limitations period were committed by Yannotti’s

co-conspirators.” Having failed to withdraw from the

charged conspiracy, Yannotti is responsible for these

acts even though he did not agree to commit those

particular acts.” Yannotti’s motion for reconsideration

is therefore denied.

C. Bail

The Bail Reform Act sets forth the procedures by

which judicial officers determine whether a convicted

°° See United States v. Ciccone, 312 F.3d 535, 542 (2d Cir.

2002) (“Gotti need not be named in a predicate act charged in

the indictment to be guilty of a racketeering conspiracy that

includes that predicate act.”).

*' See supra note 34.

’ “(A] conspirator charged with racketeering conspiracy

need not commit or even agree to commit the predicate acts that

are elements of a substantive count to be found guilty of the

racketeering conspiracy, for ‘it suffices that he adopt[ed] the goal

of furthering or facilitating the criminal endeavor.’” Ciccone, 312

F.3d at 542 (quoting Salinas, 522 U.S. at 65).

App. 55

defendant is eligible for release pending appeal.” The

Second Circuit explained that:

[w]hile the language of _ section

3143(b)(2) compels detention, an exception

permits release of mandatory detainees who

meet the requirements for release under sec-

tion 3143(b)(1), and “if it is clearly shown

that there are exceptional reasons why such

person’s detention would not be appropriate.”

18 U.S.C. § 3145(c). Thus, section 3143(b)(1)

supplies the threshold requirements that a

person convicted of a violent crime must

meet. To satisfy those requirements, the trial

judge must find that the person poses no risk

of flight and no danger to the community

during release and that the appeal “raises a

substantial question of law or fact likely to

result in” reversal, a new trial, or a reduced

sentence, and is not interposed for purposes

of delay. 18 U.S.C. § 3143(b)(1). Only then

does the trial court consider the presence of

exceptional circumstances making detention

inappropriate. See United States v. Carr, 947

F.2d 1239, 1240 (5th Cir. 1991) (per curiam)

(exceptional reasons provision to be applied

on original application despite inclusion of

provision “in a section generally covering ap-

peals”).”

*° See 18 U.S.C. §§ 3143(b), 3145(c).

“ United States v. DiSomma, 951 F.2d 494, 496 (2d Cir.

1991).

App. 56

On March 3, 2005, this Court affirmed the magis-

trate judge’s decision denying Yannotti’s initial bail

application.” At that time, Yannotti faced a potential

sentence of life in prison without parole, which I]

found provided a strong incentive to flee. But Yan-

notti no longer faces a life sentence, having been

acquitted of all but one charge. Thus, his risk of flight

is substantially reduced. I also noted that Yannotti

was charged with crimes of violence, including two

attempted murders and a double homicide, and that

he therefore posed a danger to the community.”

Because Yannotti has been acquitted of those charges,

the evidence of danger to the community is not as

strong as it was. Accordingly, there may be some

combination of conditions that could reasonably

assure the safety of the community. However, Yan-

notti must also satisfy the third requirement — “that

the appeal is not for the purpose of delay and raises a

substantial question of law or fact likely to result in —

(i) reversal, (ii) an order for a new trial, (iii) a sen-

tence that does not include a term of imprisonment,

or (iv) a reduced sentence to a term of imprisonment

less than the total of the time already served plus the

°° See United States v. Yannotti, 2005 U.S. Dist. LEXIS

3159, No. 04 CR 690, 2004 WL 488644, at *1 (S.D.N.Y. Mar. 8,

2005) (“I now conclude that the government has demonstrated

that no conditions of release will reasonably assure Yannotti’s

appearance and the safety of the community.”) (footnotes

omitted).

°° See id.

* See id.

App. 57

expected duration of the appeal process.”” Although

Yannotti may have a substantial appellate issue

regarding the statute of limitations issue, I need not

decide the likelihood of reversal or a new trial be-

cause there are no remarkable or uncommon factors

associated with Yannotti’s detention that would

constitute exceptional circumstances favoring release

pursuant to 18 U.S.C. § 3145(c).”

“Exceptional circumstances exist where there is

‘a unique combination of circumstances giving rise to

situations that are out of the ordinary.’”” “The test

under § 3145(c) is necessarily a flexible one, and

district courts have wide latitude to determine

whether a particular set of circumstances qualifies as

‘exceptional.’”™ For example, an “unusual factual or

legal question” may constitute exceptional circum-

stances as may a “merely substantial question”

combined with “one or more remarkable and uncom-

mon factors."” However, circumstances that are

* 18 U.S.C. § 3143(bx1)(B).

*° See generally DiSomma, 951 F.2d at 498 (finding excep-

tional reasons for release where the “element of the crime called

into question on appeal [violence in a conspiracy to commit

robbery conviction] is the element of the bail statute that bars

release” and there is a direct and substantial challenge to that

element on appeal).

°° United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004)

(quoting DiSomma, 951 F.2d at 497).

~ f2

* DiSomma, 951 F.2d at 497 (“We do think that an unusual

legal or factual question can be sufficient, as it is here, to meet

(Continued on following page)

App. 58

“purely personal” do not rise to the level of excep-

tional circumstances that would warrant release.”

Yannotti argues that exceptional circumstances

support his release as “the RICO conspiracy/statute

of limitations issue raised by Yannotti satisfies the

standards set forth in DiSomma, because the Second

Circuit has expressly reserved on that question,

leaving it an open one.”™ I disagree. DiSomma

teaches that a substantial question may suffice only if

it accompanied by one or more remarkable and un-

common factors.” While Yannotti’s argument may be

relevant with respect to the third requirement of

section 3143, it does not present the type of excep-

tional circumstance contemplated in section 3145.

the test. On the other hand, a merely substantial question may

be sufficient, in the presence of one or more remarkable and

uncommon factors, to support a finding of exceptional reasons

for the inappropriateness of detention.”) (emphasis added).

* United States v. Lippold, 175 F. Supp. 2d 537, 540

(S.D.N.Y. 2001). See also United States v. Bryant, 873 F. Supp.

660, 663 (N.D. Ga. 1994) (desire to spend time with 2-year-old

son before incarceration insufficient); United States v. Mahabir,

858 F. Supp. 504, 508 (D. Md. 1994); United States v. Douglas,

824 F. Supp. 98, 99-100 (N.D. Tex. 1993) (possible retaliation in

jail by co-defendants insufficient); United States v. Bloomer, 791

F. Supp. 100, 102 (D. Vt. 1992) (family obligation and medical

condition insufficient); United States v. Taliaferro, 779 F. Supp.

836, 838 (E.D. Va. 1992) (difficult pregnancy of teenage daughter

insufficient).

“ 5/8/06 Letter at 11.

*° See DiSomma, 951 F.2d at 497.

App. 59

Accordingly, Yannotti’s motion for bail pending appeal

is denied.

IV. CONCLUSION

For the foregoing reasons, Yannotti’s motion for

reconsideration is denied as his request for bail

pending appeal. The Clerk of the Court is directed to

close this motion (Document # 186).

SO ORDERED:

Shira A. Scheindlin

U.S.D.J.

Dated: New York, New York

July 24, 2006

App. 60

UNITED STATES OF AMERICA, - against —

MICHAEL YANNOTTI, Defendant.

04 CR 690 (SAS)

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

415 F. Supp. 2d 280;

2005 U.S. Dist. LEXIS 37825

December 30, 2005, Decided

December 30, 2005, Filed

COUNSEL: For Defendant: Diarmuid White, Esq.,

White & White, New York, New York

For the Government: Michael G. McGovern, Joon H.

Kim, Victor L. Hou, Assistant United States Attor-

neys, New York, New York.

JUDGES: Shira A. Scheindlin, U.S.D.J.

OPINION By: Shira A. Scheindlin

OPINION

OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.:

App. 61

I. INTRODUCTION

On July 21, 2004, Michael Yannotti was charged

with committing the following four crimes: (1) the

substantive offense of engaging in the affairs of the

‘Gambino Organized Crime Family in violation of the

Racketeering Influenced and Corrupt Organizations

Act (“RICO”); (2) conspiring to participate in the

affairs of the same enterprise; (3) murder of Robert

Arena in aid of racketeering; and (4) murder of Tho-

mas Maranga in aid of racketeering.’

The substantive RICO charge against Yannotti

included four predicate acts. Racketeering Act One

charged Yannotti with conspiring to kidnap, the

kidnapping, and the attempted murder of Curtis

Sliwa.” Racketeering Act Two charged Yannotti with

conspiring to murder Arena, the murder of Arena,

and the murder of Maranga.’ Racketeering Act Three

charged Yannotti with the attempted murder of

Robert Tarantola.* Finally, Racketeering Act Seven

charged Yannotti with conspiring to make extortion-

ate extensions of credit and conspiring to collect

' See Indictment 04 CR 690 (S.D.N.Y. July 21, 2004)

(“Indictment”) (charging a violation of 18 U.S.C. § 1962(c),

1962(d) and two violations of 18 U.S.C. § 1959(a)).

* See Indictment P14(a), (b) & (c).

” See id. P15(a), (b) & (c).

* See id. P16.

App. 62

extensions of credit through extortionate means.” A

trial on these charges was held in August and Sep-

tember of 2005.

On September 20, 2005, after seven days of

deliberations, the jury returned a note stating that it

had reached a verdict and enclosing the completed

Verdict Sheet. After reviewing the Verdict Sheet, I

informed the parties that the jury had not checked

guilty or not guilty on Count One as to any defendant

because it had not unanimously found that the Gov-

ernment proved two predicate acts against any de-

fendant.” I then sought the views of the parties as to

whether this constituted an acquittal or a hung jury.

After much colloquy, Yannotti agreed to accept a

mistrial on the deadlocked count, reserving his right

to move for a judgment of acquittal in a post-trial

motion.’

Although the jury was specifically instructed not

to do so, it provided the vote split on each of the

predicate acts. The following chart depicts the jury’s

verdict.

(Four through Six) relate to codefendants and are not relevant

here.

° See Tria) Transcript (“Tr.”) at 5289.

" See id. at 5315.

App. 63

COUNT ONE: RICO Substantive

Not

Proved Proved

Racketeering Act # 1

Conspiracy to Kidnap Curtis Sliwa 7 5

Kidnaping of Curtis Sliwa 7 5

Attempted Murder of Curtis Sliwa X

Racketeering Act # 2

Conspiracy to Murder Robert Arena ee

Murder of Robert Arena +3 |

Murder of Thomas Maranga X

Racketeering Act # 3

Attempted Murder of Robert Tarantola X

Racketeering Act # 7

Conspiracy to Make Extortionate >. 4

Extensions of Credit

App. 64

Conspiracy to Collect Extensions of X

Credit through Extortionate Means

COUNT TWO: RICO Conspiracy

Guilty X Not Guilty ___

COUNT SEVEN: Murder of Robert Arena in

Aid of Racketeering

Guilty __ Not Guilty X

COUNT EIGHT: Murder of Thomas Maranga in

Aid of Racketeering

Guilty __ Not Guilty X

The RICO statute prescribes a five-year statute

of limitations.” Because this Indictment was filed on

July 21, 2004, at least one of the predicate racketeer-

ing acts charged against Yannotti in the substantive

RICO count must have occurred or continued past

July 21, 1999. It is undisputed that three of the four

predicate acts alleged against Yannotti occurred

outside the limitations period.” However, the parties

are in disagreement as to whether the fourth charged

racketeering act — the two loansharking conspiracies

— falls inside or outside of the limitations period.

* See 18 U.S.C. § 3282: United States v. Spero, 331 F.3d 57,

59 (2d Cir. 2003).

* The charged racketeering acts involving Sliwa occurred in

1992. The charged Arena murder conspiracy and murders of

Arena and Maranga occurred in 1996. The charged attempted

murder of Tarantola occurred in 1987.

App. 65

Under Second Circuit law, the statute of limita-

tions analysis for a RICO conspiracy is different than

that for a substantive RICO violation. For a RICO

conspiracy offense, the statute of limitations starts

running “when the purposes of the conspiracy have

either been accomplished or abandoned.”” In United

States v. Persico, the Second Circuit explained that

“the agreement proscribed by section 1962(d) is

conspiracy to participate in a charged enterprise’s

affairs, not conspiracy to commit predicate acts.”’' By

contrast, a substantive RICO charge “is barred by

limitations as to any defendant unless that defendant

committed a predicate act within the five-year limita-

tions period.””

Yannotti argues that the Government failed to

prove that he had any involvement with the charged

loansharking conspiracies after July 1999 and there-

fore, none of the charged predicate acts fall within the

limitations period. Accordingly, he moves for a judg-

ment of acquittal on both RICO counts pursuant to

'° United States v. Salerno, 868 F.2d 524, 534 (2d Cir. 1989)

(citing United States v. Persico, 832 F.2d 705, 713 (2d Cir. 1987)).

" Persico, 832 F.2d at 713.

* Salerno, 868 F.2d at 534 (emphasis in original) (citing

Persico, 832 F.2d at 705). Yannotti also joined in the motion

brought by co-defendant John A. Gotti seeking a judgment of

acquittal based on the jury’s inability to reach a unanimous

verdict with regard to predicate acts, which has been denied. See

United States v. Gotti, 413 F. Supp. 2d 287, 2005 U.S. Dist.

LEXIS 32018, No. 04 CR 690, 2005 WL 3358643, at *1 (S.D.N-Y.

Dec. 8, 2005).

App. 66

Federal Rule of Criminal Procedure 29 (“Rule 29”).”

For the following reasons. Yannotti’s motion is

granted in part and denied in part.

Il. LEGAL STANDARD

To prevail on a motion for a judgment of acquittal

under Rule 29, a defendant must show that “the

evidence is insufficient to sustain a conviction.” “[A]

defendant making an insufficiency claim bears a very

heavy burden.” “The ultimate question is not

whether [the court] believe[s] the evidence adduced at

trial established defendant’s guilt beyond a reason-

able doubt, but whether any rational trier of fact

could so find.” “In other words, the court may enter

a judgment of acquittal only if the evidence that the

defendant committed the crime is nonexistent or so

meager that no reasonable jury could find guilt

beyond a reasonable doubt.”"”

Yannotti withdrew his motion pursuant to Federal Rule of

Criminal Procedure 33 for a new trial on the RICO conspiracy

count. See 12/1/05 Letter from Diarmiud White, Yannotti’s

attorney.

‘“ Fed. R. Crim. P. 29(a).

Accord United States v. Best, 219 F.3d 192, 200 (2d Cir. 2000).

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61

L. Ed. 2d 560 (1979)) (emphasis omitted).

"" United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.

1999) (quotation marks and citation omitted). Accord United

States v. MacPherson, 424 F.3d 183, 187 (2d Cir. 2005).

App. 67

A court must grant a motion under Rule 29 “if

there is no evidence upon which a reasonable mind

might fairly conclude guilt beyond a _ reasonable

doubt.” “But at the end of the day, ‘if the evidence

viewed in the light most favorable to the prosecution

gives equal or nearly equal circumstantial support to

a theory of guilt and a theory of innocence, then a

reasonable jury must necessarily entertain a reason-

able doubt.’”””

In considering the sufficiency of the evidence, the

court must “view all of the evidence in the light most

favorable to the government.”” A court must analyze

the pieces of evidence not separately, in isolation, but

together, in conjunction with one another.” Accord-

ingly, a court must apply the sufficiency test “to the

totality of the government’s case and not to each

element, as each fact may gain color from the oth-

ers.””

To avoid usurping the role of the jury, courts

must “‘resolve all issues of credibility in favor of the

‘8 United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984).

'° United States v. Cassese, 428 F.3d 92, 99 (2d Cir. 2005)

(quoting United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002))

(ruling on a Rule 29 motion).

” United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir.

2002); United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002).

** See United States v. Autuori, 212 F.3d 105, 114 (2d Cir.

2000).

“ Guadagna, 183 F.3d at 130. Accord Reyes, 302 F.3d at 53

(“We consider the evidence as a whole.”).

App. 68

jury’s verdict.’”” “The credibility of witnesses is the

province of the jury, and [a court] simply cannot

replace the jury’s credibility determinations with [its]

own.” “The task of choosing among competing,

permissible inferences is for the [jury], not for the

reviewing court.”” Furthermore, “the jury’s verdict

may be based on entirely circumstantial evidence.””

Because the jury is entitled to choose which infer-

ences to draw, the Government, in presenting a case

based on circumstantial evidence, “need not ‘exclude

every reasonable hypothesis other than that of

guilt.’”’’ But “a conviction based on speculation and

* Desena, 287 F.3d at 177 (quoting United States v. Desena,

260 F.3d 150, 154 (2d Cir. 2001)).

* United States v. James, 239 F.3d 120, 124 (2d Cir. 2000).

Accord Autuori, 212 F.3d at 114 (a court “may not substitute [its]

own determinations of credibility or relative weight of the

evidence for that of the jury”). Moreover, a court must “credit[ ]

every inference that the jury might have drawn in favor of the

Government.” United States v. Morrison, 153 F.3d 34, 49 (2d Cir.

1998).

** United States v. McDermott, 245 F.3d 133, 137 (2d Cir.

2001).

*° United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.

1995).

*” Guadagna, 183 F.3d at 130 (quoting Holland v. United

States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L. Ed. 150, 195-2

C.B. 215 (1954)); Reyes, 302 F.3d at 56 (by “discounting evidence

of guilty knowledge entirely because there were possible ...

innocent explanations for [defendant’s] conduct,” the district

court “failed to view the evidence in the light most favorable to

the Government”); Autuori, 212 F.3d at 114 (“The Government

need not negate every theory of innocence.”).

App. 69

surmise alone cannot stand.”” Moreover, a “jury is

entitled to a vast range of reasonable inferences, but

may not base a verdict on mere speculation.””

Ill. DISCUSSION

A. Substantive RICO

1. Evidence at Trial

a. Evidence of Yanotti’s Loanshark-

ing Activities Before July 21,

1999

The Government’s bill of particulars identifies

Yannotti’s coconspirators in the loansharking con-

spiracies as Nicholas Corozzo, Lenny DiMaria, Andrew

DiDonato, and Salvatore Braccia.” The Government

offered no evidence at trial concerning Yannotti’s in-

volvement with Braccia. Furthermore, DiDonato was

arrested and began cooperating with the Government

on May 8, 1997." Accordingly, only the evidence of

Yannotti’s participation in loansharking conspiracies

* United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir.

1994).

United States v. Wilson, 333 U.S. App. D.C. 103, 160 F.3d

732, 737 (D.C. Cir. 1998) (quotation marks and citation omitted)).

*° See 5/23/05 Letter from AUSA Michael McGovern to

Jeffrey Lichtman, counsel to John A. Gotti, at 10.

* Because of that cooperation, DiDonato effectively with-

drew from any loansharking conspiracy. Thus, none of his

loansharking activities could have occurred within the limita-

tions period.

App. 70

with Corozzo and DiMaria is relevant to Yannotti’s

statute of limitations defense.” To establish Yannotti’s

participation in the loansharking cons

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