# Petition for Writ of Certiorari — Yannotti v. United States (No. 08-1062) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0207%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text 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 il 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. 1X 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 1 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 2 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.... 3 Title 18 United States Code, Section 1962, pro- vides in pertinent part: (c) It shall be unlawful for any person 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[.] 4 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. 4 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 6 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 8 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. 9 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 10 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 11 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 12 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 13 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 14 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. 15 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 16 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 I 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. 17 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) 18 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) 19 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) 20 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). 21 “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. 22 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 23 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. Il 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 24 (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 25 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. 26 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] 27 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.” 28 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 29 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. 30 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. IV 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 31 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 32 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) 33 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. V 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). 34 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), 35 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. ¢ 36 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 V. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0207%3A1. Public record. Not legal advice.