Demauro v. Demauro

• Court: Court of Appeals for the First Circuit
• Decided: February 17, 2000
• Docket: 99-1589
• Status: Published

Opinion

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                 United States Court of Appeals

                     For the First Circuit


No. 99-1589



                      ANNETTE B. DEMAURO,

                                

                           Appellant,

                                

                               v.

                                

   JOSEPH DEMAURO, EDWARD MARTIN, DEMAURO CO., INC., NICHOLAS

    DEMAURO, TRI-AREA DEVELOPMENT CO., INC, and JOAN MARTIN,

                                

                     Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Reginald C. Lindsay, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


S. James Boumil, for appellant.



     Kathleen M. Morrissey, Zevnik, Horton, Guibord, McGovern,

Palmer & Fognani, LLP with whom Bernard A. Dwork, Kevin P. Scanlon,

Barron & Stadfelfd, P.C., Richard L. Fox, and Carragher & Fox, were

on brief for appellees.


February 16, 2000


BOWNES, Senior Circuit Judge.  This case is related to a

lengthy and bitterly fought divorce proceeding in New Hampshire

between plaintiff Annette B. DeMauro and the principal defendant,

Joseph DeMauro.  It would appear that the divorce proceedings were

precipitated when Annette discovered that Joseph was having an

affair with the household maid.  As far as we know, there has been

no final decree in the divorce proceeding.

          Plaintiff filed a six count amended complaint against her

husband and the five other named defendants.  Count One alleged

violations of 18 U.S.C.  1961-1968 (1982), the Racketeer

Influenced and Corrupt Organizations Act (RICO).  Count Two alleged

conspiracy by the defendants under RICO.  

          The balance of the complaint alleged pendent state-law

claims.  Count Three alleged intentional infliction of emotional

distress. Count Four alleged breach of fiduciary duty.  Count Five

alleged illegal telephonic recordings.  Count Six alleged

fraudulent conveyances.

          After a lengthy hearing, the district court dismissed the

two RICO counts for failure to state a cause of action.  It stated,

inter alia:

                    What I cannot find is a pattern of

          racketeering activity as defined by the RICO

          statute.  Specifically, what I cannot find

          what the plaintiff claims to be a violation of

          the wire fraud and mail fraud statutes. 

          [W]here this complaint is deficient is that it

          does not allege false or fraudulent pretenses,

          representations or promises, and to the extent

          that it does so allege, those allegations are

          not made with the specificity required by Rule

          9(b).



          The court declined to exercise supplemental jurisdiction

with respect to Counts Three, Four, and Six.  The court, sua

sponte, dismissed the federal claim purported to be asserted in

Count Five (entitled "Illegal Telephone Recordings") and declined

to exercise jurisdiction over any state claim purported to be

stated in that count.  For the following reasons, we affirm, but on

somewhat different grounds, as we can do. See Acushnet Co. v.

Mohasco Co., 191 F.3d 69, 76 (1st Cir. 1999); see also Cablevision

of Boston, Inc. v. Public Improvement Comm'n of the City of Boston,

184 F.3d 88, 97 (1st Cir. 1999).

I. Standard of Review

          We review the district court's decision to dismiss Counts

One and Two of the complaint de novo. See Doyle v. Hasbro, Inc.,

103 F.3d 186, 190 (1st Cir. 1996). We accept as true "all well-

pleaded factual averments and indulg[e] all reasonable inferences

in the plaintiff's favor." Id.  The district court's order of

dismissal may be affirmed only if the "facts alleged, taken as

true, do not justify recovery." Id. 

II. The Elements of a RICO Claim

          RICO makes it unlawful "for any person employed by or

associated with any enterprise engaged in, or the activities of

which effect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprises' affairs through a pattern of racketeering . . . ." 18

U.S.C.  1962(c).  Section 1964(c) provides that a private party

injured in his business or property as a result of a RICO violation

may pursue a civil claim for treble damages.  Although RICO is

silent about what limitations period governs the filing of civil

RICO claims, the Supreme Court has held that civil RICO actions are

subject to a four-year limitations period. See Klehr v. A.O. Smith

Corp., 521 U.S. 179, 183 (1997)(holding that civil RICO claims are

subject to a four-year limitation period contained in  4B of the

Clayton Act   the statute of limitations that governs private civil

antitrust actions seeking treble damages). 

          For a civil RICO claim to survive a motion to dismiss,

the  complaint must allege: "(1) conduct (2) of an enterprise (3)

through a pattern (4) of racketeering activity." Sedima, S.P.R.L.

v. Imrex Co.,Inc., 473 U.S. 479, 496 (1985); see also Doyle, 103

F.3d at 190.  "In addition, the plaintiff only has standing if, and

can only recover to the extent that, he has been injured in his

business or property by the conduct constituting the violation."

Sedima, 473 U.S. at 496.

          The first requirement that the plaintiff must establish

in order to survive a motion to dismiss is the existence of an

enterprise. See Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st Cir.

1997).  An "enterprise includes any individual, partnership,

corporation, association, or other legal entity, and any union or

group of individuals associated in fact although not a legal

entity."  18 U.S.C.  1961(4).

          Once the plaintiff establishes the existence of an

enterprise, she must allege a pattern of racketeering activity. 

See McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d

786, 788 (1st Cir. 1990) ("Establishing a RICO violation under

either section 1962(a) or section 1962(c), requires proof of a

'pattern of racketeering activity' . . . .").  A pattern of

racketeering activity involves at least two predicate acts, the

second of which must occur within 10 years of the first.  See 18

U.S.C.  1961(5); see also Roeder v. Alpha Industries, Inc., 814

F.2d 22, 30 (1st Cir. 1987).  This court has stated that "[i]t is

not enough for a plaintiff to file a RICO action, chant the

statutory mantra, and leave the identification of predicate acts to

the time of trial."  Feinstein v. Resolution Trust Corp., 942 F.2d

34, 42 (1st Cir. 1991).   Predicate acts are acts indictable under

certain specified laws, including the mail and wire fraud statutes.

See McEvoy, 904 F.2d at 788.  

          It is well-settled in this circuit that when a plaintiff

relies on predicate acts containing fraud, they are subject to Rule

9(b)'s heightened pleading requirement.  See New England Data

Services, Inc. v. Becher, 829 F.2d 286, 288 (1st Cir. 1987)(stating

that Rule 9(b) has been strictly applied where fraud lies at the

core of the claim).  Federal Rule of Civil Procedure 9(b) states

that fraud must be pled with particularity.  Thus, in order to

survive a motion to dismiss, the plaintiff must state the time,

place, and content of the alleged misrepresentation perpetuating

that fraud.  See Ahmed, 118 F.3d at 889.

          It is also well-established that a single criminal event

does not constitute a pattern of racketeering activity. See Apparel

Art Int'l, Inc., v. Jacobson, 967 F.2d 720, 722 (1st Cir. 1992);

see also H.J. Inc. v. Northweatern Bell Telephone Co., 492 U.S.

229, 239 (1989)(finding "sporadic activity" does not form a

pattern); Roeder, 814 F.2d at 31 (holding that a single bribe paid

in three installments, each constituting a mail fraud violation,

did not make out a "pattern"). 

          Adequately alleging two predicate acts, although

necessary, is not sufficient to establish a "pattern of

racketeering activity."  "The use of the word 'requires'   as

opposed to 'means'   in  1651(5) indicates that alleging two acts

of mail fraud (or two or more other statutorily defined predicate

acts) is necessary but not sufficient to establish a pattern of

racketeering activity."  Fleet Credit Corp. v. Sion, 893 F.2d 441,

444 (1st Cir. 1990); see also H.J. Inc., 492 U.S. at 237; Roeder,

814 F.2d at 30 ("It is not enough that defendants may have engaged

in racketeering 'acts'; these acts must constitute a 'pattern of

racketeering activity' as construed under RICO for there to be

liability.").  

          Following the Supreme Court's lead in H.J., Inc., 492

U.S. at 238, we have held that a plaintiff seeking to establish a

"pattern of racketeering activity" must establish that the

"predicate acts are related and that they amount to or pose the

threat of continued criminal activity (the 'continuity'

requirement)."  Ahmed, 118 F.3d at 889; see also Fleet, 893 F.2d at

444 (holding that a pattern of racketeering activity is formed if

(a) the predicate acts were related, and (b) the predicate acts

amount to, or pose a threat of, continued criminal activity); 

Roeder, 814 F.2d at 30 ("The constituent elements must be

sufficiently related to one another and threaten to be more than an

isolated occurrence.").

          To fulfill the relatedness requirement, the predicate

acts must have the "same or similar purposes, participants,

victims, or methods, or otherwise be interrelated by distinguishing

characteristics and not be isolated events."  Ahmed, 118 F.3d at

889; see also Fleet, 893 F.2d at 445.  In establishing the

continuity prong, the plaintiff must show "either that the related

predicates 'amounted to' continued criminal activity or that there

was, even though the predicate acts did not span a significant

time, a 'threat' or realistic prospect of continued activity in

time yet to come."  Ahmed, 118 F.3d at 889 (quoting Feinstein, 942

F.2d at 45).

          The Supreme Court in H.J. Inc., 492 U.S. at 241, held

that predicate acts amount to continued activity when they evince

a "closed period of repeated conduct" or "past conduct that by its

nature projects into the future with a threat of repetition." The

Court has defined this as:

                              a series of related predicates

               extending over a substantial period

               of time.  Predicate acts extending

               over a few weeks or months and

               threatening no future criminal

               conduct do not satisfy this

               requirement: Congress was concerned

               in RICO with long-term criminal

               conduct.



Id. at 242.

          We have previously stated that a threat of continued

criminal activity for purposes of RICO is not established "merely

by demonstrating that the [defendants'] acts of common law fraud

were a regular way of conducting their ongoing businesses.  Rather,

the [plaintiff] must demonstrate that the predicate acts . . . 

were a regular way of conducting the ongoing businesses." Fleet,

893 F.2d at 448.

          With these tenets in mind, we turn to the plaintiff's 

complaint. 

III. Analyisis

          Paragraphs 12 through 17 of Count One of the complaint

allege in effect:

          Paragraph 12: At the time of their marriage Annette and

Joseph had few assets.  Joseph was "in effect bankrupt."  In 1975

they left Japan and moved to the Middle East where Joseph sought

opportunities to engage in heavy construction; "an opportunity was

found."  

          Paragraph 13: Before taking Annette to the "extreme

hardship" of the Middle East, Joseph promised Annette that they

would "share and share alike" in any success they achieved.

          Paragraph 14: Joseph established a bank account for

Annette and himself, first in the Middle East, and then in

Switzerland.  Joseph deposited the profits from the business into

"their" account to pay their expenses and "apparently to induce her

to believe that he was maintaining accounts in both names as

promised."  Joseph induced Annette to believe, "by his repeated

promises, [that] they would share equally and hold" money earned in

the Middle East for their "mutual benefit and control."

          Paragraph 15: Annette enhanced the success of the

business by actually working in the office with Joseph, by

arranging and providing entertainment and social activities for

employees and customers, by providing counseling  and psychological

assistance to employees of the company and their families, and by

sharing the physical risk of the location.

          Paragraph 16: Joseph, either directly or indirectly,

established bank accounts in foreign jurisdictions in the name of

Nicholas DeMauro.  Into those accounts, Joseph deposited or caused

to be deposited profits from the business and joint assets, thus

concealing the assets from Annette.  This scheme continues to this

day.

          Paragraph 17: Over the years the business earned millions

of dollars by Joseph's own accounting; substantial money was earned

on these profits. Annette did not object to the receipt and

management of these funds by Joseph because he represented that he

was taking care of their monetary affairs and was investing for

both of them.


None of the allegations in paragraphs 12 through 17 show

an enterprise engaged in a pattern of racketeering activity. 

Concealment of assets by a husband from a wife is reprehensible and

may be a crime under certain circumstances but that does not render

it a pattern of racketeering activity perpetuated through an

enterprise.  Moreover, paragraph 17 states that "Annette did not

object to the management of these funds by Joseph."


Paragraphs 18 through 21 allege in effect:   

          Paragraph 18: Starting in 1976, Joseph started a pattern

of racketeering activity "known as the RICO conduct" which

continues to this day.  This pattern of activity was designed to

conceal from Annette the assets accumulated from the business and

to convince Annette and others that the assets were being held

jointly while actually Joseph defrauded her and misled her and

others as to their nature, location, extent and existence.

          Paragraph 19: Joseph conspired with the other defendants

in a continuous enterprise continuing to this day.  The corporate

defendants were used as shams to further the RICO enterprise.  All

the named personal defendants were agents and co-conspirators of

Joseph.

          Paragraph 20: Joseph, acting in concert with the other

defendants from time to time, by means of "false pretenses,

representations and 'devices' established bank and investment

accounts in Switzerland, Middle East, France, Liechtenstein,

several states of the United States."  Most of these accounts were

established under the names of "straws, sham trusts and phony

foundations."  This was all done to conceal the assets from Annette

and other creditors.  Thus, assets of Annette, including assets

from her first marriage, were taken from her and concealed.

          Paragraph 21: In doing the things alleged in Paragraph

20, Joseph made "extensive use of the wires and mails of the United

States."


Paragraphs 18 through 21 fail to plead fraud with

particularity.  Paragraph 18 uses the words "pattern of

racketeering activity," "RICO conduct," and "defrauded," but does

not specify as to when the activity took place and what was done. 

Paragraphs 19, 20, and 21, similarly use broad conclusory language. 

The last sentence of paragraph 20 does not state either the value

of Annette's assets or of what they consisted.  We do not doubt

that Joseph made "extensive use of the wires and mails of the

United States" but that is only one factor to consider in

determining the validity of the complaint.  As we have stated

previously, to plead fraud with particularity pursuant to Rule

9(b), a plaintiff must state the time, place, and content of the

alleged misrepresentation perpetuating the fraud.  Annette fails to

do this.


Paragraphs 22 through 28 allege in effect:

          Paragraph 22: Joseph caused property known as 2595 Ocean

Blvd., Rye Beach, NH to be placed in the name of the "Klaidonis

Foundation" despite the fact that a Purchase and Sale Agreement for

the property had been executed in the names of Annette and Joseph. 

Annette had not been informed of the change in ownership of the

property.

          Paragraph 23: In operating the Klaidonis Foundation,

Joseph used the wires and mails of the United States to transfer

"in excess of $2 million in interstate commerce in furtherance of

this scheme."  The existence of the Klaidonis Foundation was

concealed from Annette and only discovered recently.  The existence

of this sham foundation was only discovered after the divorce

action commenced.

          Paragraph 24: Exhibit A is a true and accurate copy of

the deposition of the Honorable John Maher (now a judge) concerning

the purchase of the 2595 Ocean Blvd. property.  It summarizes the

deposition testimony of Judge Maher in four subparagraphs.

          Paragraph 25: Joseph induced Judge Maher to place the

property in the name of the Klaidonis Foundation.  This inducement

was obtained by fraud on the part of Joseph.

          Paragraph 26: Since January 13, 1988, Joseph has used the

wires and mails of the United States to "contact, instruct and

compensate his foreign agents who hold and maintain the Klaidonis

Foundation for his benefit."  This is part of a plan and scheme

through an illegal enterprise which continues to this day. 

          Paragraph 27: Joseph has taken the position and has

instructed his attorneys and agents to take the false position that

he has no interest in or knowledge of the Klaidonis Foundation. 

Joseph has an outstanding warrant against him.  Joseph makes

constant threats to Annette to the effect that he will abandon any

interest in the Rye Beach property and let his creditors take it

and "auction Annette's interest in the property."  This is to

increase Joseph's pressure on Annette and pressure her to settle

all outstanding cases against him, including this one, on his own

terms.

          Paragraph 28: On November 16, 1988, Joseph signed a

building permit application listing himself as owner of the

property.  This shows that the Klaidonis Foundation is a mere

straw.


We think that paragraphs 22 through 28, construed most

favorably to Annette, set forth sufficient facts to allege one 

RICO predicate act.  Although it is a close call, we think the

allegations of fraud meet the specificity requirement of Fed. R.

Civ. P. 9(b).  As we construe these allegations, they state that at

the time of purchasing the property described therein, Joseph led

Annette to believe that the title to the real estate would be in

both their names.  We construe this to allege that there was a

deliberate misrepresentation by Joseph on which Annette relied and

that Joseph defrauded her by placing the property in the name of

the Klaidonis Foundation, which was owned and controlled by Joseph.


Paragraphs 29 through 32 bring another foundation into

the picture.  They allege in effect:

          Paragraph 29: Joseph established the Redonia Foundation

as a sham entity.  Joseph used the mails and wires of the United

States to deposit, in five named banks and other banks, "hundreds

of thousands of dollars" which he used to make, improve and conceal

the ownership of investments here in the U.S.

          Paragraph 30: Twenty-five specific examples of wire

transfers of money to a Luxembourg Bank, Credit Swisse Bank, and

Union Bank-Switzerland are stated.  The money was hidden in the

"Redonia Foundation."  This is part of Joseph's scheme and artifice

to defraud Annette "and as an integral part of defendant's RICO

activity."

          Paragraph 31: There were numerous other wire transfers

"siphoning off" Annette's assets "from the foreign bank accounts to

which [Joseph] had removed them to Defendant DeMauro Co., and each

of the other defendants."

          Paragraph 32: Nicholas DeMauro knew that the Redonia

Foundation was a sham used by Joseph to conceal assets in offshore

entities and then wire them into the United States.


None of these paragraphs state that a fraud was committed

against Annette with the specificity required by Fed. R. Civ. P.

9(b).  Although Annette has alleged the use of the U.S. mails

and/or wires, by documenting some times and places of these

transfers, she fails to allege the content of any

misrepresentation.


The balance of the complaint fails to state a second

predicate act, which is required for a RICO violation.  Some of the

remaining paragraphs repeat prior allegations and others are window

dressing.

          Paragraphs 33 through 66 allege in effect:

          Paragraph 33: Joseph, Nicholas DeMauro, Edward Martin,

DeMauro Co., Inc. and Tri-Area Development Co., Inc., have

conspired to place in excess of a million dollars into defendant

corporations.  There are nine separate sub-paragraphs detailing how

this conspiracy was carried out. 

          Paragraph 34: Joseph used the wires and mails to deposit

money in the Lowell Five Cents Savings Bank to acquire and maintain

properties which he concealed from Annette.

          Paragraph 35: Identification of some of the concealed

properties and the names of those holding the properties are

stated.  The properties have no mortgages and their estimated value

is "hundreds of thousands of dollars."

          Paragraph 36: Most, if not all, of the money used to

acquire the properties described in Paragraph 35 is a joint asset.

          Paragraph 37: Joseph and Nicholas DeMauro acquired

property in Tyngsborough, MA with Annette's money.  This property

is in the names of DeMauro Co., Inc. and Tri-Area Development Co.,

Inc.

          Paragraph 38: There were no mortgages on the Tyngsborough

properties, and DeMauro Co., Inc. and Tri-Area Development Co.,

Inc., the named owners, had no viable source of credit, but

construction costing hundreds of thousands of dollars is being

done.  Joseph has "wire transferred" money to both corporations "in

furtherance of the scheme."  There are seven sub-paragraphs

detailing a purported money laundering scheme involving $60,000.

          Paragraph 39: Joseph makes multiple phone calls to

Annette telling her that he has hidden her assets and she will get

nothing.  The amount of Annette's money so concealed is "well in

excess of ten million dollars."

          Paragraph 40: Joseph has been using DeMauro Co., Inc. and

Tri-Area Development Co., Inc. to provide a means of support for

his two sons, Nicholas and Michael.  The sons are assisting him in

conducting his racketeering activity and fraud.

          Paragraph 41: The payments to Joseph's sons deprived

Annette of money and property due her.

          Paragraph 42: DeMauro Co., Inc. has provided assets to

Joseph's brother-in-law Edward Martin and his sister Joan Martin by

listing on its financial statements a false account payable to

Edward Martin in the amount of $135,000.

          Paragraph 43: More details are laid out about the

$135,000 referred to in paragraph 42.

          Paragraph 44: Assets of more than $500,000 have been

fraudulently transferred to Edward and Joan Martin.

          Paragraph 45: Joseph and some other defendants have

participated in money laundering.

          Paragraph 46: Joseph has used other persons "innocent and

otherwise" to attend real estate auctions and bid on property for

him and he concealed such purchases from Annette.

          Paragraph 47: Property in the name of Tri-Area

Development Co., Inc. as described by deed in Exhibit L is an

example of Joseph acquiring property from marital assets and

concealing it in the name of another.

          Paragraph 48: Joseph and the other defendants conspired

to hide Annette's assets, thus depriving her of millions of

dollars.

          Paragraph 49: Joseph falsely represented to the Town of

Rye, NH that the Klaidonis Foundation is the owner of 2595 Ocean

Blvd. in Rye, NH.  Joseph invested hundreds of thousands of

dollars, obtained from abroad, in renovating the property.

          Paragraph 50: Joseph has used the wire and mails to

conceal assets and siphon off assets belonging to Annette.

          Paragraph 51: Joseph, working with Nicholas DeMauro,

submitted false and misleading loan applications to FDIC insured

lending institutions.

          Paragraph 52: Specific threats, intimidations, harassment

and extortion of Annette by Joseph are described.

          Paragraph 53: The allegations in paragraph 52 violate the

laws of New Hampshire and the United States.

          Paragraph 54: Joseph has secretly tape-recorded

conversations with Annette and played portions of the tapes to

third parties.

          Paragraph 55: Joseph has used a law firm in West Palm

Beach, Florida to pay bills and conceal from Annette the origin of

his funds.  

          Paragraph 55(a): Annette and Joseph, through a trust

established by Joseph, own property in Manalapan, Florida.  Five

sub-paragraphs detail how Joseph has extorted Annette and misused

the property causing her damages in excess of $50,000.

          Paragraph 56: Joseph misused credit cards in Annette's

name to purchase goods.

          Paragraph 57: Joseph has falsely registered at hotels

with other women posing as Annette.

          Paragraph 58: Joseph purchased a yacht with another

person and then deliberately damaged it so that he could claim it

did not meet contract specifications.  A judgment has been entered

against Joseph, threatening Annette in the amount of many hundreds

of thousands of dollars.

          Paragraph 59: Joseph has, within the last two years,

furthered a conspiracy to defraud and extort Annette.  There are

four sub-paragraphs of specifications.  We have read the sub-

paragraphs carefully and they neither singly nor in the aggregate

allege facts sufficient to prove a present conspiracy to defraud

and extort Annette.

          Paragraph 60: The defendants have repeatedly used wires,

mails, and other means of interstate commerce to violate RICO.

          Paragraph 61: As the result of Joseph's illegal

activities, Annette has been unable to locate and control her

assets.

          Paragraph 62: Nicholas DeMauro has admitted in a public

document that the stock of DeMauro Co., Inc. is owned by Joseph. 

Three sub-paragraphs from a pre-trial memorandum filed in

Massachusetts Probate Court follow.

          Paragraph 63: Nicholas DeMauro is causing valuable

property to be deeded to him by DeMauro Co., Inc. in fraud of

Annette's rights.

          Paragraph 64: Joseph, during his deposition, invoked the

5th Amendment privilege "to virtually every question."

          There is no paragraph numbered 65.

          Paragraph 66: Joseph has stolen private papers of Annette

and refuses to return them.

          Paragraph 66(a) states that the complaint does not

allege: that Joseph is guilty of income tax evasion, has received

any illegally paid wages, or that any wages he has earned from his

own employment are from any criminal enterprise.  The final sub-

paragraph (d) states that the purpose of this statement is because

Joseph has invoked the fifth amendment in his depositions without

any basis for doing so.


Although the allegations described in paragraphs 33

through 66 recite serious crimes and reprehensible conduct, none of

them, singly or consolidated, set forth a second predicate act

sufficient to meet the legal requirements for a RICO violation.

IV. Conclusion

          Paragraphs 12 through 17 do not show an enterprise

engaged in a pattern of racketeering activity.  Paragraphs 18

through 21 fail to plead fraud with particularity.  Paragraphs 22

through 28 set forth sufficient facts to allege one predicate act. 

Paragraphs 29 through 32 do not state that a fraud was committed

against Annette with the specificity required by Rule 9(b). 

Paragraphs 33 through 66 fail to set forth a second predicate act. 

Therefore, we affirm the district court's ruling to dismiss Counts

One and Two of the complaint.

          We point out that our affirmance of the dismissal does

not leave Annette without other remedies.  As noted in our prior

opinion, she has obtained attachments in state court totaling 33

million dollars in property owned partly or solely by Joseph. See 

DeMauro, 115 F.3d at 97.

          We find no merit in plaintiff's objections to the

district court's dismissal of the other counts in the complaint. 

See 28 U.S.C.  1367(c) (1990).

Judgment affirmed.