Providence Journal v. , 293 F.3d 1 ( 2004 )

United States Court of Appeals
For the First Circuit
Nos. 02-2158 Vol. II of II
02-2159
02-2165
02-2166
02-2188
UNITED STATES OF AMERICA,
Appellee,
v.
VINCENT A. CIANCI, JR., FRANK E. CORRENTE, and
RICHARD E. AUTIELLO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Chief U.S. District Judge]
Before
Howard, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
John A. MacFadyen for appellant Vincent A. Cianci, Jr.
Anthony M. Traini for appellant Frank E. Corrente.
Richard C. Bicki with whom Cerilli & Bicki and Edward
Gerstein were on brief for appellant Richard E. Autiello.
Donald C. Lockhart, Assistant United States Attorney with
whom Margaret E. Curran, United States Attorney, Richard W. Rose
and Terrence P. Donnelly, Assistant United States Attorneys were
on brief, for appellee.
August 10, 2004
III. The Remaining Convictions
A. Federal Bribery Conspiracy (Autiello)
Autiello argues that there was insufficient evidence to
support his conviction for federal bribery conspiracy in connection
with the Maggiacomo Job scheme. Autiello contends that, because
there was no direct evidence about either the identity of his co-
conspirator or the fate of the $5,000 Mary Maggiacomo paid him, the
evidence gave nearly equal circumstantial support to an inference
that he pocketed the money as a payment for his efforts with the
police department (with which he had influence) on behalf of Joseph
Maggiacomo as it did to an inference that he passed the bribe along
to some public official, or at least conspired to do so. See
United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995) ("If the
evidence viewed in the light most favorable to the prosecution
gives equal or nearly equal circumstantial support to a theory of
guilty and a theory of innocence of the crime charged, this court
must reverse the conviction.") (citation and internal quotation
marks omitted). The argument is unconvincing.
There was evidence that, during a face-to-face meeting in
which his favorable intercessions were sought, Autiello told Mary
Maggiacomo and her husband that Providence police officer positions
were prized and that Joseph Maggiacomo's chances were not good
because the Maggiacomos were not Providence taxpayers and had not
made any "contributions." In nearly the same breath, Autiello told
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them that, if they wanted Joseph to be accepted into the police
academy, they would have to come up with $5,000 in cash. The
juxtaposition of these two comments, combined with the evidence
that Autiello himself held no authority to make police academy
admission decisions, permitted a reasonable inference that the
$5,000 was to be a political "contribution" that would serve as
Joseph's ticket of admission when passed along to someone with
authority over academy admission decisions.
B. Hobbs Act Attempted Extortion and
Extortion Conspiracy (Corrente)
Corrente makes three arguments in favor of reversing or
vacating his convictions for Hobbs Act attempted extortion and
Hobbs Act extortion conspiracy in connection with the Freitas Lease
and Freitas Invoices schemes: (1) there was insufficient evidence
that these schemes had the constitutionally required impact on
interstate commerce; (2) there was insufficient evidence that he
affirmatively acted in such a way as to be fairly accused of having
attempted or conspired to engage in extortion; and (3) the district
court's jury instructions erroneously described what was required
to establish an attempt or conspiracy to engage in extortion.
There is some question whether each of these arguments was made
below as to each of the three convictions, but we bypass issues of
forfeiture because none of the arguments is persuasive on its
merits.
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Corrente's first argument is largely based on an
assertion that his convictions are unconstitutional because his
offense conduct had to, but did not, have more than a de minimis
effect on interstate commerce in order to jibe with the Supreme
Court's decisions in United States v. Lopez, 514 U.S. 549 (1995),
and United States v. Morrison, 529 U.S. 598 (2000). After briefs
were filed in this case, another panel of the court rejected this
argument, United States v. Capozzi, 347 F.3d 327, 334-336 (1st Cir.
2003), so we must reject it too, see, e.g., United States v. Downs-
Moses, 329 F.3d 253, 263 (1st Cir. 2003).
Corrente alternatively argues that no reasonable factfinder
could have found that his offense conduct had such a de minimis
effect. He is wrong.
With respect to Corrente's attempted extortion in
connection with the Freitas Lease scheme, the jury could have found
that, but for Freitas' agreement to pay Corrente for favorable
intervention on his behalf with the school department, there was a
realistic probability that the City contractor (an entity engaged
in interstate commerce and whose lease agreement would be a
transaction affecting interstate commerce12) would have leased space
in Cranston, Rhode Island. This evidence alone satisfies
12
The contractor, the Marriott Corporation, supplied lunches
and custodial services to all Providence schools. There was
evidence that the company was incorporated in New York and had
offices in Washington, D.C., and Newark, Delaware.
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constitutional concerns, even if the space for which Corrente
advocated actually proved to be a better fit for the contractor.
See Capozzi, 347 F.3d at 335 (extortionate conduct need only create
a realistic probability of an effect on interstate commerce)
(citations omitted); id. at 337 (conviction for attempted extortion
requires only a showing that the identified effect would have
occurred had the defendant succeeded in the extortion); United
States v. Tormos-Vega, 959 F.2d 1103, 1113 (1st Cir. 1992)
(extortionate conduct meets constitutional requirements even where
it "has a beneficial effect on interstate commerce") (citation and
internal quotation marks omitted); id. (where the victim's
acquiescence in an extortion results in a transaction with effects
on interstate commerce, constitutional concerns are satisfied).
With respect to the Freitas Invoices scheme, the jury
could have found that a city contractor that was indisputably
engaged in interstate commerce was deprived of $1,100 in order to
facilitate payments to which it was entitled. This was enough.
See Capozzi, 347 F.3d at 337 ("One common method for the government
to establish the required 'de minimis effect' on interstate
commerce is to show that the defendant's activity "minimally
depletes the assets of an entity doing business in interstate
commerce.") (quoting United States v. Nguyen, 246 F.3d 52, 54 (1st
Cir. 2001)).
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Corrente's other two arguments are very difficult to
follow. In the main, they appear to be interrelated attacks on the
correctness of Evans v. United States, 504 U.S. 260 (1992). Evans
interpreted the provision of the Hobbs Act under which Corrente was
convicted -- one which prohibits extortion by means of "the
obtaining of property from another, with his consent, . . . [2]
under color of official right," 18 U.S.C. § 1951(b)(2) -- not to
require that the government prove that the defendant initiated the
extortionate transaction or otherwise induced the payments.
Rather, "the Government need only show that a public official has
obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts." Id. at 268.
Corrente appears to believe that the Evans Court erred in
concluding that the defendant need not induce the payment or
otherwise initiate the event. See Corrente Br. at 49. To the
extent that he is so arguing, Corrente acknowledges that we are
powerless to grant him relief and that he must go to the Supreme
Court. Id.There are hints of other arguments in Corrente's brief,
but none is sufficiently developed to warrant consideration on the
merits. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). In any event, our review of the record convinces us that
there is no basis for reversing or vacating Corrente's attempted
extortion and extortion conspiracy convictions.
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Any sufficiency challenge is doomed because there was
sufficient evidence to support the convictions even under the more
demanding interpretation of the Hobbs Act for which Corrente
advocates. With respect to the Freitas Lease scheme, the jury
could have found that Corrente "induced" payments from Freitas
when, at one point prior to receiving any money related to this
scheme, he suggested to Freitas that City Hall could either hurt or
help his chances of securing the lease (depending, presumably, on
whether Freitas anted up). With respect to the Freitas Invoices
scheme, the jury could have found that Pannone, Corrente's co-
conspirator, induced payments on Corrente's behalf by encouraging
Freitas to "throw something" at Corrente – i.e., to "pay to get
paid."
So too with the jury instructions. As clarified in a
supplemental charge just prior to the return of the verdicts, the
instructions on the attempted extortion and extortion conspiracy
charges were, if anything, overly generous to Corrente. And
because the evidence was sufficient to support the convictions even
under the arguably too lenient instructions, any error was
harmless. See Fed. R. Crim. P. 52(a); United States v. Royal, 100
F.3d 1019, 1027 (1st Cir. 1996).
IV. Admission of the Pannone Tapes
Defendants contend that the district court violated
various Rules of Evidence and their confrontation and due process
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rights in admitting into evidence certain tape-recorded
conversations among Freitas (who was acting as a government agent),
Pannone, the Chairman of the Board of Tax Assessment Review and an
alleged co-conspirator, and various other individuals, some
identified and others not. They also argue that the court erred in
precluding them from interposing objections to the admission of
these tape recordings for their failure to abide by a procedural
order requiring that Rule 403 and 404(b) objections be identified
with specificity in advance of trial.
A. Petrozziello determination
Defendants argue that the district court erred when it
concluded that Pannone's statements fell outside of the hearsay
rule under Fed. R. Evid. 801(d)(2)(E).13 We review this
determination for clear error. United States v. Geronimo, 330 F.3d
67, 74 (1st Cir. 2003); Marino, 277 F.3d at 25. In determining
whether the Government has met Rule 801(d)(2)(E) prerequisites, the
district court must determine that it is "more likely than not that
the declarant and the defendant were members of a conspiracy when
the hearsay statement was made, and that the statement was in
furtherance of the conspiracy." United States v. Petrozziello, 548
13
“A statement is not hearsay if . . . [t]he statement is
offered against the party[-opponent] and is . . . a statement by a
coconspirator of a party during the course and in furtherance of
the conspiracy.” Fed. R. Evid. 801(d)(2)(E).
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F.2d 20, 23 (1st Cir. 1977). We refer to this determination as a
“Petrozziello ruling.” Geronimo, 330 F.3d at 75.
Defendants contend that there was "scanty" evidence of a
conspiracy among defendants and Pannone. They argue that Pannone's
taped statements were unreliable and there was insufficient
extrinsic evidence of the conspiracies because some of the
conversations on the tape were "rambling and unfocused" and not all
of the defendants were ultimately convicted as part of the three
racketeering acts--the Ronci Estate, Freitas Lease, and Freitas
Invoices schemes--of which Pannone had first-hand knowledge.
We disagree. As we have detailed supra, the government
presented sufficient evidence of a RICO conspiracy--conspiracy,
enterprise, and pattern of racketeering activity–-to satisfy the
evidentiary standard set forth in Petrozziello. In particular, on
tape, Corrente intimated to Freitas with respect to the Freitas
Lease scheme, "Don't get involved with Joe unless something
happens." Corrente also admits on tape to receiving cash from
Pannone in connection with the Pay-to-Get-Paid scheme. Pannone
chaired the Board of Tax Assessment Review, a municipal office
which we have already detailed to be crucial to the conspiracy.
Both Freitas and Ead testified at trial to Pannone’s involvement in
the Ronci Estate, Freitas Lease, and Pay-to-Get Paid schemes. With
regard to the Ronci Estate scheme, the evidence showed a sub-
conspiracy among Cianci, Corrente, and Pannone to extort money from
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the Ronci estate in exchange for a reduction of back taxes owed to
the City and the assessment of property owned by the estate. At
the times the taped statements were made, the evidence also shows
a conspiracy between at least Corrente and Pannone to extort money
from Tony Freitas and JKL Engineering in exchange for assistance in
leasing property owned by Freitas to the City or to the Marriott
Corporation. Third, the evidence was sufficient to establish a
conspiracy between at least Corrente and Pannone to extort money
from Freitas and JKL in exchange for facilitating payments due from
the City to JKL.
Pannone’s taped statements were not made “after the
fact,” but were uttered as part of and in furtherance of the
conspiracy. In these statements, Pannone described the roles that
he, Cianci, Corrente, and Ead played in the conspiracy and in
particular, what he and Freitas should do to carry out the Freitas
Lease and Pay-to-Get-Paid schemes. Such statements are well within
the core of Rule 801(d)(2)(E). See United States v. Martinez-
Medina, 279 F.3d 105, 117 (1st Cir.), cert. denied, 537 U.S. 921(2002); United States v. Eke, 117 F.3d 19, 21 (1st Cir. 1997). The
district court did not commit clear error in admitting the Pannone
tapes and we decline to reverse defendants’ convictions on
Petrozziello grounds.
B. Confrontation Clause and Due Process claims
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Defendants contend that Pannone’s taped statements are
inherently unreliable and hence should not have been admitted in
evidence. As a constitutional matter, they claim that the
statements’ unreliability implicates Sixth Amendment witness
confrontation concerns. This Court reviews Confrontation Clause
challenges de novo. United States v. Ventura-Melendez, 275 F.3d 9,
15 (1st Cir. 2001). The Confrontation Clause does not require "a
showing of unavailability as a condition to admission of the out-
of-court statements of a nontestifying co-conspirator, when those
statements otherwise satisfy the requirements of Federal Rule of
Evidence 801(d)(2)(E)." United States v. Inadi, 475 U.S. 387, 391
(1986). It also "does not require a court to embark on an
independent inquiry into the reliability of statements that satisfy
the requirements of Rule 801(d)(2)(E)." Bourjaily v. United
States, 483 U.S. 171, 183-84 (1987).
Defendants argue that notwithstanding Inadi and
Bourjaily, Pannone's statements should not have been admitted
because he was unavailable and unreliable. They assert that the
present case is anomalous and that "corruption stings" such as this
one should not fall within Inadi and Bourjaily. We find no case
law excepting the case from the Inadi and Bourjaily rules.
Defendants further suggest that Pannone was outside of his "natural
habitat" because Freitas was eliciting incriminating statements
from him as part of his cooperation with the FBI. Pannone,
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however, was unaware that he was being stung. We see no reason how
his behavior would have been different had Freitas been making the
same conversation without the FBI’s direction.
To further address defendants’ contention that Pannone’s
statements are inherently unreliable, we agree with the district
court that Pannone “did have or was in a position to have firsthand
knowledge of some of the things that he testified about.” He was
an insider to the conspiracy. Again, he was directly involved and
even played a supervisory role in the Ronci Estate, Freitas Lease,
and Freitas Invoices schemes. Trial testimony by Ead, Rocha,
Freitas, and others corroborated Pannone’s taped statements setting
out how Corrente was often the middleman in the racket, that Cianci
used Corrente as a buffer, and that money given to Corrente found
its way into the campaign and eventually benefitted Cianci or the
administration in some way. Taped conversations between Freitas
and Corrente confirmed the same.
The government questions Cianci and Corrente's motive for
failing to call Pannone as a witness for cross-examination as Fed.
R. Evid. 806 permits. Cianci and Corrente repeatedly contend that
Pannone was unavailable to them because he would assert his Fifth
Amendment rights against self-incrimination if called to testify.
They claim that Pannone’s behavior was "orchestrated" by the
Government in their plea arrangements with him.
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This alleged "attempt to thwart cross-examination" forms
the basis of defendants’ Fifth Amendment due process claim. The
procedural travel of the case, however, reveals little to support
this accusation. The indictment in this case originally named
Pannone as a defendant on Counts 1, 2, 8, 9, 16-19, and 21-24. On
February 14, 2002, he signed a plea agreement in which he agreed to
plead guilty to Counts 1, 2, 8, 16, 19, and 22. The government
agreed to dismiss the remaining counts at sentencing. Hence,
dismissal of the remaining charges against Pannone was contingent
upon sentencing.
On April 16, 2002, during a hearing to resolve
defendants’ motion to exclude the Pannone tapes, Corrente
complained that Pannone’s plea agreement had “left open” the
remaining counts, suggesting that Pannone’s fear of the
government’s handling of the remaining counts would cause him to
assert his Fifth Amendment rights if he were called by the defense
to testify. The court, though ultimately rejecting defendants’
legal arguments, assured them that it would try to accelerate
Pannone’s sentencing, which at that time had been scheduled for
July.
Thereafter, the district court moved up Pannone’s
sentencing in order to accommodate defendants in this case.
Pannone was sentenced on May 24, 2002, while the government was
still presenting its case-in-chief and almost two weeks before the
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defense presented their own case. Immediately after sentencing,
the government moved to dismiss the remaining counts against
Pannone; the court granted the motion. During a bench conference
four days after Pannone’s sentencing, Corrente’s counsel briefly
remarked that he had been informed by Pannone’s counsel that
Pannone would persist in his Fifth Amendment claim “because of a
variety of reasons which I won’t go into right now.” Nothing more
was made of these “reasons.”
After this point, defendants did not attempt to call
Pannone as a witness. We find no evidence that Pannone would have
invoked his Fifth Amendment right against self-incrimination if
called to testify, and whether the court would have permitted him
to do so. There simply is no evidence of an "orchestration" by the
government to keep Pannone away from defendants. Thus, there were
no constitutional infringements here.14
C. Rules 403 and 404(b)
Finally, with respect to the Pannone tapes, defendants
argue that the district court erred by failing to consider their
objections to admission of the tapes under Fed. R. Evid. 40315 and
14
To the extent that defendants’ due process claim incorporates
their argument that Pannone’s statements are unreliable, our
affirmance of the district court’s Petrozziello ruling sufficiently
responds to that claim.
15
“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
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404(b).16 They claim that they made timely objections pre-trial.
They further recount that the court decided not to address the
objections prior to trial, but then mistakenly at trial ruled that
defendants waived their right to object to admission of the tapes.
We first recount the procedural history giving rise to
this issue. On April 24, 2001, the government provided defendants
with copies of the two hundred tapes relating to their
investigation of defendants, along with an index showing the dates
of the recordings and the conversation participants. Three days
later, the court issued an Arraignment and Pre-trial Discovery
Order, whereby the government was ordered to provide the defendants
with transcripts of the tapes. The court also ordered that all
pre-trial motions be filed by December 31, 2001.
The government eliminated all but twenty-two tapes as
possible trial exhibits. By October 31, 2001 –- two months before
the deadline for pre-trial motions and six months before the
presentation of cumulative evidence.” Fed. R. Evid. 403.
16
“Other Crimes, Wrongs, or Acts–Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court
excuses pre-trial notice on good cause shown, of the general nature
of any such evidence it intends to introduce at trial.” Fed. R.
Evid. 404(b).
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commencement of trial –- the government had provided transcripts of
these twenty-two tapes to defendants.
On March 28, 2002, the district court issued a Pre-trial
Scheduling Order, which read:
On or before April 12, 2002, counsel for any
party disputing the audibility of
admissibility of any such recording or the
accuracy of any such transcript of any such
transcript shall file an objection identifying
the recording to which objection is being
made. Memoranda in support of objections to
the accuracy or completeness of transcripts
shall be accompanied by copies of the
transcripts objected to on which proposed
deletions and corrections are noted.
In offering recorded conversations, counsel
shall make every effort to edit out footage
that contains no audible discussion or
contains irrelevant material so that the jury
will not be required to listen for protracted
periods of time to portions of recordings that
provide little or no assistance in determining
the pertinent facts. In order to achieve that
objective, counsel shall meet and confer, in
advance, in an effort to resolve any disputes
with respect to editing.
. . . Failure to comply with the provisions of
this paragraph may be considered as a waiver,
by the proponent, of the right to offer the
recorded conversation(s) at issue; or,
alternatively, as a waiver of the right to
object to omission of the recorded
conversation(s) and/or dispute the accuracy or
completeness of the transcript, as the case
may be.
On April 8, 2002, defendants filed a motion objecting to
the admission of the Pannone tapes. They based their motion
primarily on Petrozziello and constitutional grounds, and mentioned
Rules 403 and 404 in a general observation that “any given
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statement may also be inadmissible” under those rules. They did
not identify which statements were inadmissible, but instead
suggested that the court itself should “go through” the tapes
“line-by-line, making individual assessments as to each declarative
statement.” Defendants stated that they would provide the court
with a schedule identifying offending statements and detailing the
bases for their exclusion. They never provided this schedule.
At the April 16 hearing on the motion, defendants again
focused on Petrozziello and the constitutional theories.
Corrente’s counsel acknowledged that the government had edited the
tapes to deal with Rule 403 concerns. Nothing more was said with
regard to either 403 or 404. The court denied the motion to
suppress the Pannone statements and refused to undertake the line-
by-line analysis, explaining that it “would take easily, . . .
weeks . . . and it would delay the trial by that period of time.”
The court expressed its plan to “minimize the risk of a mistrial in
the event that statements are presented that later are found not
satisfy the requirements” by requiring the government to present
“additional evidence above and beyond the statements themselves to
support a finding that they qualify as admissible co-conspirator
statements.”
On April 24, the second day of trial, the government in-
chambers mentioned that defendants had failed to propose cuts to
the Pannone tapes. In response to Corrente’s counsel’s suggestion
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that the defense would later in the trial move to excise other
taped statements pursuant to Rules 403 and 404, the court stated
that such motions “should have been done long ago.”
Throughout trial, the court repeated that proposals for
cuts to the tapes had been due by April 12, 2002, pursuant to its
Pre-trial Scheduling Order. Upon challenges at trial by defendants
to the admissibility of individual tapes, the court stated that
they could not make these objections because they had failed to
tender such an objection pre-trial.
Defendants argue that they complied with the pre-trial
scheduling order because they timely filed "an objection
identifying the recording to which objection is being made" as
required by the Pre-trial Scheduling Order. However, they fail to
mention that the order also mandates that "[m]emoranda in support
of objections . . . shall be accompanied by copies of the
transcripts objected to on which proposed deletions and corrections
are noted." Defendants failed to provide the district court with
these specific objections. The supplemental schedule promised by
defendants never materialized; the schedule, moreover, was not an
“extra” offer, but explicitly required by the order as part of any
objection to the tapes. The district court declined to perform a
line-by-line assessment of the transcripts because it had
specifically provided in the order that the parties do it. After
repeated general objections non-compliant with the procedural
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order, the court decided that the defendants waived their right to
object pursuant to the order. It did not abuse its discretion in
refusing to entertain piecemeal objections to evidence in the
Pannone tapes.
Regardless, admission of the taped statements--which
defendants still have failed to itemize--did not prejudice
defendants. As we have explained supra, the government has
produced sufficient evidence of the tapes’ reliability and
probative value. Moreover, the court followed through on its
assurance that it would “minimize the risk” of improper admission
by requiring the government to produce evidence corroborative of
statements made in the tapes.
We stress that the court wisely recognized that stop-and-
go evidentiary evaluations of these tapes during trial would unduly
delay the case and perhaps even cause the very prejudice and
confusion that defendants contemplated in their general objection.
Accordingly, the court fashioned a system well before trial through
which it expected both parties to whittle down the tapes to their
relevant portions. See United States v. Nelson-Rodriguez, 319 F.3d
12, 34 (1st Cir. 2003) (“The trial court has wide discretion in
determining admissibility under Rule 403 since the trial judge ‘is
more directly familiar than a court of appeals with the need for
the evidence and its likely effect.”) (citations omitted). An
important part of this system was for defendants to produce
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transcripts of the tapes denoting which portions they wished to
redact out of Rule 403, Rule 404, constitutional, or Petrozziello
concerns. Even in their appeal, defendants persist in the
ambiguity of their objection to the tapes. Other circuits have not
tolerated this type of objection. See, e.g., United States v.
Holland, 880 F.2d 1091, 1094-95 (9th Cir. 1989) (where some parts
of audiotape were admissible but “much of the tape was irrelevant,”
the defendant’s “blanket objection to the admission of the tape
does not preserve an objection to failure to redact the tape”). We
find no abuse in the district court’s exercise of its broad
discretion over Rule 403 and 404 considerations.
V. Cianci’s Taped Statement
A. Hearsay
In 1995, a government agent posing as an air conditioning
businessman taped his conversation with Cianci when he requested a
city contract. Cianci assured the agent that he would refer him to
Alan Sepe, who Cianci believed knew more about air conditioning
matters than he did. Cianci then told the agent, "[Sepe] is honest
as the day is long. He deals in governments and ____. No one will
ask you for a thing. If anybody does, you pick up the phone and
call me. I'll cut his ____ off and have him arrested, okay?" The
agent had said or done nothing to prompt discussion of corruption.
Then, Cianci, in introducing the agent to an unidentified man,
remarked, "He's probably an FBI agent."
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The district court refused to admit this tape on
relevancy grounds, holding that the conversation in it “does not
relate to any predicate act or to any specific matter with respect
to which the Government has presented any evidence.” In response
to Cianci’s argument that the statements were admissible under the
“state of mind” exception to the hearsay rule, see Fed. R. Evid.
803(3), the court concluded, “This statement or the import of the
statement is to show what Mr. Cianci did or didn’t do on other
occasions with respect to unrelated matters, so therefore it does
not fall under the exception to the hearsay rule created by Rule
803(3) for state of mind existing at the time of the event in
question.” Cianci argues that the district court's refusal to
admit this taped statement in evidence was an abuse of discretion
and violated his right to due process. Colasanto v. Life Ins. Co.
of North America, 100 F.3d 203, 213 (1st Cir. 1996).
The district court deemed Cianci’s taped statement
irrelevant because it did "not relate to any predicate act or to
any specific matter with respect to which the Government has
presented any evidence." Cianci argues that the court failed to
recognize the statement’s relevance to the RICO charges in general.
He asserts that the statement tends to make the existence of the
enterprise less likely than without the statement, Fed. R. Evid.
401, and that the court “conflat[ed] the provisions of Rule 803(3)
. . . with the relevancy requirements of Rule 401.”
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Cianci recapitulates that if the statement in the tape is
hearsay, it falls within the state of mind exception to the hearsay
rule. Fed. R. Evid. 803(3). “To be admissible under this
exception, a declaration, among other things, must 'mirror a state
of mind, which, in light of all the circumstances, including
proximity in time, is reasonably likely to have been the same
condition existing at the material time.’” Colasanto, 100 F.3d at
212 (quoting 2 John W. Strong, McCormick on Evidence § 274 (4th ed.
1992)). Cianci contends that the statement evinces a
contemporaneous intent not to endorse bribery in his
administration, rather than a statement denying past instances of
corrupt acts. In addition to adopting the district court’s
conclusion that the statement evinced a “state of mind” as to
events or behavior on other occasions, the government argues that
Cianci's statements were self-serving, and hence outside the ambit
of Rule 803(3), because he knew that he was talking to a federal
agent.
As an initial matter, the taped statement is hearsay.
Cianci offered it to prove the truth of the assertion that Cianci
did not tolerate corruption. Another thing is certain: the
statement was not admissible in order to show what Cianci might
have done or not done on other occasions not proximate to the time
the statement was uttered. The only purpose for which the
statement could have been admitted would have been to establish
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Cianci's state of mind at the time the statement was made. Because
"disputes over whether particular statements come within the state-
of-mind exception are fact-sensitive, the trial court is in the
best position to resolve them." Colasanto, 100 F.3d at 212. That
the statement was made at one point during the time of charged
conspiracy cannot be sufficient to mandate its admission,
especially where the latter part of the statement--“He's probably
an FBI agent"--places doubt on what Cianci claims is the probative
value and relevance of the statement as a whole. Whether Cianci’s
statement is “forward-looking” or refers to past acts and events is
unclear from the statement itself. Ths issue is further
complicated by the fact that Cianci’s mention of pay-offs was
“gratuitous” and not provoked by anything the agent said or did.
Hence, it was within the district court’s discretion to conclude
that the statement, at least in part, applied to past acts of the
Cianci administration and were to a large extent “self-serving”
attempts to cover tracks already made. Such observations are
well-established grounds for non-admission. See, e.g., United
States v. Bishop, 264 F.3d 535, 549 (5th Cir. 2001), cert. denied,
535 U.S. 1016 (2002); United States v. Miller, 874 F.2d 1255, 1265-
66 (9th Cir. 1989); United States v. Jackson, 780 F.2d 1305, 1313-
15 (7th Cir. 1986). Thus, as the district court determined that
Cianci sought to admit the statement "to show that he did not and
does not take bribes or engage in corrupt activity," we are loath
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to disturb the court’s exercise of discretion to deny admission of
the statement.
B. Due Process claim
Cianci claims that by denying admission of his taped
statement, the district court violated his Fifth Amendment due
process right to “a meaningful opportunity to present a complete
defense.” Crane v. Kentucky, 476 U.S. 683, 687 (1986). We review
this claim for plain error because it was not raised at trial.
Under plain error review, the defendant must show (1) that an error
occurred (2) which was "obvious" in the sense that governing law
was clearly settled to the contrary, (3) affected the defendant's
substantial rights, and (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings. United
States v. Gomez, 255 F.3d 31, 37 (1st Cir. 2001).
Application of evidentiary rules "do not abridge an
accused's right to present a defense so long as they are not
'arbitrary' or 'disproportionate to the purposes they are designed
to serve.' . . . [W]e have found the exclusion of evidence to be
unconstitutionally arbitrary or disproportionate only where it has
infringed upon a weighty interest of the accused." United States
v. Scheffer, 523 U.S. 303, 308 (1998) (citing Rock v. Arkansas, 483
U.S. 44, 56 (1987)). We have described the Supreme Court's rule as
overturning convictions only in "egregious cases." Fortini v.
Murphy, 257 F.3d 39, 47 (1st Cir. 2001). Cianci outlines his
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"weighty interest" as his effort to disprove the government's
theory of criminal intent. Even if we were to give some
exculpatory value to the statement, given the amount of evidence of
Cianci’s criminal knowledge and intent presented at trial, its
absence from the evidence does not rise to an “egregious” violation
of Cianci’s interest in defeating this part of the government’s
case. Arguably, the statement itself indicates that Cianci knew he
was talking to an FBI agent. Regardless, the court acted well
within its discretion in determining that Cianci’s taped statement
did not pass muster under Rule 401 and that its value, if any, fell
outside of Rule 803(3)’s exception to the hearsay rule.
Accordingly, we conclude that the court’s refusal to admit his
taped statement did not constitute error, let alone plain error,
and thus, Cianci’s due process claim fails.
VI. Conclusion
Accordingly, defendants’ convictions are affirmed.
VII. Sentencing and Forfeiture Appeals
In light of the Supreme Court’s recent decision in
Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004), we do not
decide the sentencing appeals raised by all defendants as well as
challenges by defendants and the government to the district court’s
forfeiture order. By separate order, we have requested additional
briefing and oral argument on these issues.
Separate opinion, concurring in part and dissenting in
part, follows.
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HOWARD, Circuit Judge, concurring in part and dissenting
in part. The majority has skillfully analyzed a number of very
difficult issues, and I concur in parts II and III of its opinion,
which affirm Corrente's and Autiello's non-RICO-related
convictions. As to the RICO-related convictions, I am not
persuaded that the majority correctly disregards the jury's
interrogatory answers in conducting its sufficiency review, see
ante part I-E, or that it has convincingly fended off defendants'
argument that a municipal entity, which is incapable of being found
to have acted with an unlawful purpose, cannot coherently be
regarded as a member of an associated-in-fact RICO enterprise that
is defined by the shared unlawful purposes of its associates, see
ante part I-B. But even if I assume that the jury's interrogatory
answers are irrelevant and that municipal entities can be named as
associates of the type of RICO enterprise that was alleged in this
case, I still must dissent from the majority's conclusion that
there is sufficient record evidence to sustain defendants' RICO-
related convictions. In my view, the RICO-related judgments
(including the forfeiture judgment) should be reversed and this
matter should be remanded for resentencing.
The majority has done an excellent job of summarizing the
relevant legal principles, the nature of the associated-in-fact
RICO enterprise alleged in this case, and the pattern of
racketeering activity underlying the RICO and RICO conspiracy
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allegations. See ante at 4-10 & 11-13. I adopt this discussion by
reference and turn to the particulars of the argument I find
persuasive.
Defendants contest their RICO-related convictions, in
part, on the ground that the evidence introduced at trial in
support of the nine alleged schemes was inadequate to establish
that the schemes were conducted through the amalgam of persons and
entities alleged in the indictment to have constituted the RICO
enterprise. Defendants premise this argument on an underlying
assertion that there was no proof to ground an inference of a
shared purpose among defendants and all of the municipal entities
named as associates of the enterprise -- a required finding (at
least usually, see ante at 13) if an unlawful criminal association
is to be regarded as a RICO enterprise. Defendants say that their
position is bolstered by two “findings” made by the district court
and not contradicted by the government (or at least not clearly
so): (1) "there is no evidence that the [City] departments and/or
agencies, themselves, shared [the enterprise's] purposes," United
States v. Cianci, 210 F. Supp. 2d 71, 73 (D. R.I. 2002), and (2)
"none of [defendants'] acts . . . resulted in any significant
disruption of a Governmental function." Thus, the argument goes,
even if we were to assess the adequacy of the evidence supporting
the RICO convictions by looking at the whole record and construing
it in favor of the government (despite the nine judgments of
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acquittal entered by the district court and the special
interrogatory answers collectively indicating that much of the
government's RICO case was not "proven"), we would find only a few,
relatively inconsequential interactions between the defendants and
these municipal entities during the nearly eight years the
enterprise was alleged to have existed.
The government's response tracks the grounds on which the
district court rejected the defendants' motions for judgments of
acquittal: (1) we should follow the Ninth Circuit and hold that
"RICO does not require intentional or 'purposeful' behavior by
corporations charged as members of an association-in-fact," United
States v. Feldman, 853 F.2d 648, 657 (9th Cir. 1988); and (2) the
jury's enterprise finding was sufficiently supported by evidence
that Cianci and Corrente (Autiello, who was not a municipal
employee, is not mentioned) "using the Office of the Mayor and the
Office of Director of Administration as base camps, . . .
controlled" the municipal entities named as enterprise associates.
The government's first suggestion, that we reject defendants'
argument on the basis of the Feldman principle, faces
insurmountable obstacles. This court has identified the "common
purpose" requirement discussed in United States v. Turkette, 452
U.S. 576, 580-83 (1981), as one of the principal tools a factfinder
should use to distinguish a RICO enterprise from an ad hoc criminal
confederation. See ante at 13; see also Ryan v. Clemente, 901 F.2d
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177, 180 (1st Cir. 1990) (emphasizing that the common purpose
requirement is necessary to "limit the potentially boundless scope
of the word 'enterprise'" and thereby "distinguish culpable, from
non-culpable, associations").17 Indeed, we have applied the
requirement (albeit without acknowledging Feldman) in a case
involving an unlawful purpose RICO association-in-fact involving
corporate legal entities. See United States v. London, 66 F.3d
1227, 1243-45 (1st Cir. 1995). Moreover, and decisively, the
district court instructed the jury without objection from
the government: "[I]t is not necessary in proving the existence of
an enterprise to show that each member of the enterprise
participated in or even knew of all of its activities, but it is
necessary to show that all members of the alleged enterprise shared
a common purpose." The government has not attempted to reconcile
Feldman with Turkette, Ryan, London, or our other cases applying
Turkette. See ante at 13. Thus, as the majority concedes, we
cannot disregard the common-purpose instruction in analyzing
defendants' sufficiency challenges. See ante at 18-19 (citing
United States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir. 1999)). The
17
Ryan, which was authored by then-Judge Breyer, involved a
civil RICO claim, but precedent generated in civil RICO cases
applies to criminal RICO cases. See United States v. Shifman, 124
F.3d 31, 35 n.1 (1st Cir. 1997).
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question whether Feldman correctly states the law must be left to
another day.18
This leaves the government's undeveloped assertion -- an
assertion that the majority finds convincing -- that the jury's
enterprise finding is sustainable because there was evidence that
Cianci and Corrente exercised "control" over the municipal entities
named as members of the enterprise. Because the common-purpose
instruction binds for purposes of our analysis, I shall assume that
the government intends by this assertion to argue that such
"control" is sufficient to impute to the entities the unlawful
purposes of those alleged to control them -- i.e., Cianci and
Corrente. Compare London, 66 F.3d at 1243-45 (involving closely
held corporations operated by the defendant and alleged to be
members of his unlawful associated-in-fact RICO enterprise); United
States v. Masters, 924 F.2d 1362, 1366-67 (7th Cir. 1991)
(involving a law firm and two police departments associated in fact
with those who controlled or manipulated them). I also shall
assume that it would be fair to sustain the defendants' convictions
on evidence of such control, notwithstanding the absence of jury
instructions explaining that a municipal entity's "purposes" may be
18
Even under the Feldman approach, the court still would face
the question whether entities not controlled by those accused of
operating the alleged association-in-fact enterprise are properly
considered part of such an enterprise. For the reasons that
follow, I do not think that they are. Thus, my conclusion that the
Feldman rule does not apply under the facts of this case is not
outcome determinative.
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so ascertained. Even so, I do not see how the convictions can
stand.
In my view, there is no proof that Cianci and Corrente so
controlled the activities of all the municipal entities alleged to
be associates of the charged enterprise that the two’s shared
criminal purposes are reasonably imputed to each such entity.
There is no evidence that, for example, Cianci and Corrente
themselves could provide those willing to pay bribes with jobs in
City departments over which they lacked hiring authority; or that
they could contractually bind City departments under separate
leadership; or that they could sell City property; or that they
could grant or deny construction variances. Nor did the government
show that the persons, committees, and boards within the municipal
departments, offices, and agencies whose assistance the schemes
required abdicated their decision-making responsibilities to Cianci
or Corrente.19 In short, neither Cianci nor Corrente was shown to
have so dominated the affairs of the departments, offices, and
agencies claimed to be associated with the unlawful purpose
enterprise that each of these municipal entities might fairly be
found to have been an alter ego of Cianci or Corrente with respect
19
This statement is subject to the following two
qualifications. First, the jury could have found that Corrente
himself had the ability to dictate which towers were placed on the
police department's tow list. Second, the jury could have found
that the Board of Tax Assessment Review was effectively controlled
by Cianci and Corrente through the corrupt machinations of RICO co-
conspirators Joseph Pannone (BTAR's Chairman) and David Ead (BTAR's
Vice-Chairman).
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to the transactions in question.20 Rather, the evidence showed only
that Cianci and Corrente periodically used the power inherent in
20
By this statement, I do not mean to imply that those
municipal actors to whom Cianci and Corrente directed their
successful requests and demands (compare infra note 5) always acted
within standard operating procedures or even lawfully. To the
contrary, as the majority explains it:
[T]he evidence depicted a behavioral spectrum
ranging from innocent cooperation to willful complicity
in unlawful conduct. For example, with respect to the
Freitas Invoices scheme, the evidence was merely that an
employee within the City's Finance Department (Lorraine
Lisi), acting at Corrente's request, paid valid invoices
more promptly than usual. Similarly, with respect to the
Ise Job scheme, the evidence was merely that the Deputy
Director of the Department of Planning and Development
(Thomas Deller) created a temporary position for Ise
within the department at Cianci's request. At the more
culpable end of the spectrum, however, there was evidence
that, in connection with the Jere Lease scheme, the head
of the Department of Public Property (Alan Sepe) and the
Director of Business Relations for the School Department
(Mark Dunham) were influenced by Corrente to tailor the
specifications in a School Department lease bid to fit
the dimensions of Jere Realty's building, and then to
support the Jere Realty lease before the Board of
Contract and Supply (which was the entity formally
empowered to accept or reject bids of City contracts).
Similarly, in connection with the Freitas Lease scheme,
there was evidence that Corrente again contacted Dunham
prior to finalization of the lease and influenced him to
drop consideration of an alternative lease.
Ante at 20 n.3. But importantly, even in connection with these
latter two schemes, Sepe and Dunham were not shown to have known of
and willingly joined the alleged RICO enterprise conspiracy. Nor
was there a basis for finding that a majority of the Board of
Contract and Supply, the entity which ultimately voted to accept
the Jere Realty lease, did so for purposes of furthering the
alleged RICO enterprise conspiracy, or even with knowledge that it
was ratifying a contract that had been formed in disregard of
standard operating procedures.
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their positions to influence (or attempt to influence)21 the
decisions of other municipal actors -- actors who, with the
exceptions noted in the preceding footnote, were not shown to be
privy to, let alone supportive of, the alleged enterprise's
purposes.
The question arises why this evidence of influence is not
sufficient to make the persons and entities influenced part of the
alleged enterprise. The answer, I believe, lies in the fact that
we are here deciding what is required for membership in an
associated-in-fact RICO enterprise defined only by the common
21
The majority acknowledges that Cianci and Corrente "did not
always get their way . . . ." Ante at 24. As the majority notes,
there was uncontradicted evidence that, in connection with the
Freitas Lots scheme, Cianci was displeased that elements within the
Providence Redevelopment Agency, the entity empowered to sell the
lots, did not sufficiently accede to his wishes. See id. n.7.
There also was uncontradicted evidence that, in connection with the
University Club scheme, Cianci was angered when members of the
Providence Building Board of Review ignored his wishes and granted
the club some of the variances that it sought. See id. Finally,
there was uncontradicted evidence that, in connection with the
Maggiacomo Job scheme, the Chief of Police declined to admit
Maggiacomo to the police academy because he had a criminal history
and had been untruthful during a screening interview. See id.
The majority suggests that this evidence "does not defeat the
integrity of the charged enterprise" because the jury could have
concluded that "these glitches in the schemes only meant that
certain substantive crimes went uncompleted . . . ." Id. With
respect, I think that the evidence is more telling on the point in
question -- whether there was sufficient evidence that Cianci and
Corrente so controlled the Providence Redevelopment Agency, the
Providence Building Board of Review, and the Department of Public
Safety that their unlawful purposes should be imputed to these
entities -- than the majority acknowledges. There was, after all
(and as the majority concedes, see ante at 17), no other evidence
from which the jury might have found that defendants controlled
these agencies (or at least relevantly so).
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unlawful purposes of its members. This is a highly ramified
decision with implications, criminal and civil, that extend far
beyond this case. Were we to permit a person or entity to be named
part of an unlawful purpose enterprise on mere evidence that the
person or entity acceded to a mobster's request (but without
knowledge of the purposes underlying the request), we would be
heading down the slippery slope against which then-Judge Breyer
warned in Ryan: that of failing to differentiate between
associations that fall within the sweep of RICO and associations
involving only the exploitation of others by criminals. See 901
F.2d at 180-81 (emphasizing the need to limit "the potentially
boundless scope of the word 'enterprise' so as to distinguish
culpable from non-culpable associations," and recognizing "the
serious consequences for any man or woman, state official or
private person, who is publicly accused of racketeering"); see
also Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226-28 (7th Cir.
1997).22 As Ryan suggests, membership in an unlawful purpose RICO
22
To illustrate, suppose there was evidence that a young law
school graduate made a $5,000 "campaign contribution" to Cianci and
asked for a recommendation to the hiring partner of a Providence
law firm that does a substantial amount of city business. Suppose
further that there was evidence that Cianci called the firm's
hiring partner and asked that the firm give serious consideration
to hiring the young lawyer. If the firm did so, would it become a
member of the common purpose enterprise alleged in this case? If
the answer is "no" (as I think it clearly should be), on what
principled basis can we find that the Department of Planning and
Development -- the agency that created a temporary position for
Christopher Ise at the request of Cianci -- was proved to be part
of the enterprise?
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enterprise implies potential culpability under the RICO statute.
See 901 F.2d at 181; see also 18 U.S.C. § 1962(d) (allowing for the
imposition of RICO liability under conspiracy principles). Thus,
as a matter of logic (not to mention due process), one who lacks
the mental state necessary for the imposition of RICO liability
because he is unaware of the enterprise or its purposes also lacks
the mental state necessary to be part of a RICO enterprise that is
defined solely by the shared, culpable mental state of its members.
This is ultimately what, in my view, dooms the government's
enterprise allegations in this case.
There was in this case significant evidence of public
corruption. Perhaps the government could have proved that Cianci
and Corrente ran the Office of the Mayor or the Office of the
Director of Administration as a RICO enterprise. Or perhaps the
defendants (or, more likely, a subset thereof) might have been
shown to be members of one or more smaller, associated-in-fact RICO
enterprises. But the government successfully persuaded the grand
jury to cast a wider net and to allege that the persons named as
enterprise associates, along with the campaign contribution fund,
the City of Providence, and many of its departments, offices and
agencies, functioned as a de facto organized crime syndicate.
Framing the case in this way permitted the government to allege
that defendants were responsible under RICO's conspiracy provision
for all of the illegal and unethical conduct put on display in this
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trial -- even that in which they were not shown to have personally
participated.23 But this broad case theory obligated the government
to prove that each municipal entity alleged to have engaged in
conduct that constituted part of the "pattern of racketeering
activity" identified in the indictment was itself a member of the
enterprise. As another court has put it:
[I]t must be stressed that the government,
through its ability to craft indictments, is
the master of the scope of the charged RICO
conspiracy . . . . [RICO's conspiracy
provision] is capable of providing for the
linkage in one proceeding of a number of
otherwise distinct crimes and/or conspiracies
through the concept of enterprise conspiracy.
The government, through the vehicle of the
indictment, provides the linking
conspiratorial objective of a specific RICO
violation. The "specific" violation can be
broad or narrow. It is the prosecution which
sets the parameters to which a RICO conspiracy
trial must be confined; having set the stage,
the government must be satisfied with the
limits of its own creation.
United States v. Weissman, 899 F.2d 1111, 1115 (11th Cir. 1990)
(quoting United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.
1986)) (internal quotation marks omitted; emphasis in original).
23
For example, Autiello was responsible under RICO for the
unlawful conduct underlying the Freitas Lease and Freitas Invoice
schemes -- schemes on which the jury returned substantive
convictions but in which he was not involved -- on the theory that
he was a member of a conspiracy to conduct the enterprise that
carried out these schemes.
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RICO is a powerful weapon that can cause mischief if
abused by an overzealous prosecutor.24 While I do not doubt that
RICO will sometimes apply in cases of political corruption, I fear
the consequences of making the statute too easy to invoke -- or too
easy to apply broadly -- in the political context, where persons
who have made a contribution to a politician routinely receive
favorable treatment from offices or agencies over which the
politician has influence. I therefore agree with Justice Breyer
that we must place comprehensible limits on RICO's reach and that
an important way of cabining the statute is to require true
culpability before one may be named part of an associated-in-fact
RICO enterprise defined by the common unlawful purposes of its
constituents. See Ryan, 901 F.2d at 180-81. Such a limitation
helps to ensure that cases involving claims of political corruption
will not also inevitably give rise to a RICO charge, and that cases
involving multiple acts of common law fraud will not also
inevitably give rise to civil liability under the statute.
In this case, the government proved only that many of the
municipal entities named in the indictment were used as tools by
defendants. For reasons I have explained, this is not enough to
prove that these entities were part of a RICO enterprise defined
24
I am speaking generally here and in no way intend to impugn
those who brought this case. Indeed, there is no reason to doubt
that the government’s enterprise allegations were made in a good
faith attempt to comply with circuit precedent in this tricky area
of the law.
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only by the shared unlawful goals of its members. Thus, the
government failed to prove the existence of the enterprise alleged
in connection with the RICO counts, and the RICO convictions cannot
stand. See United States v. Morales, 185 F.3d 74, 80-82 (2d Cir.
1999) (reversing on sufficiency grounds where the proof failed as
to the specific enterprise charged in the indictment); Weissman,
899 F.2d at 1113-15 (vacating a conviction obtained after the trial
court constructively amended the indictment in a supplemental jury
instruction by permitting the jury to find a different enterprise
than that charged in the indictment).
I respectfully dissent from part I of the majority
opinion and would not reach the issues addressed in parts IV-VI
(which are rendered immaterial by my conclusion that the
defendants’ RICO-related convictions must be reversed).
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