November 8, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 91-1769
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK ORETO, SR.,
Defendant, Appellant.
No. 91-1770
FRANK ORETO, JR.,
No. 91-1771
DENNIS PETROSINO,
CORRECTED ERRATA SHEET CORRECTED ERRATA SHEET
The opinion of this Court issued on October 4, 1994, is amended as follows:
Page 2 of the Cover Sheet, line 5: Change the name "Dinisco" to "DiNisco".
Page 3, lines 9-10: Delete the words "Hobbs Act".
Page 3, line 11: After the number "894" add the words "(the extortionate credit transactions or "ECT" statute)".
Page 8, line 12: Add the word "an" before the word "additional".
Page 11, line 22: Substitute "2" for "12".
Page 17, lines 17-18: Replace the words "Hobbs Act" with the words "ECT statute".
Page 23, line 7: Substitute " 892," for " 1892,".
Page 23, line 25: Replace the words "Hobbs Act" with the words "ECT statute".
Page 24, line 8: Add the word "by" after the word "employed".
Page 29, line 16: Delete the quotation marks after the word "plus".
Page 30, line 17: Delete the word "moreover,".
Page 30, line 18: Change the words "`Bible' and Daniel" to "`Bible'; and Daniel".
On the following pages and lines, substitute "ECT" for "Hobbs Act": Page 4, lines 7 and 10; page 6, line 16; page 15, lines 15, 18 and 22; page 17, lines 1, 5 and 11; page 18, line 21; page 22, line 8; page 27, line 23; page 28, lines 2, 4, 8-9 and 12.
October 26, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
UNITED STATES OF AMERICA, Appellee,
v. FRANK ORETO, SR.,
No. 91-1770 UNITED STATES OF AMERICA,
Appellee, v.
FRANK ORETO, JR., Defendant, Appellant.
v. DENNIS PETROSINO,
ERRATA SHEET ERRATA SHEET
The opinion of this Court issued on October 4, 1994, is amended as follows:
Page 2 of the Cover Sheet, line 5: Change the name "Dinisco" to "DiNisco".
Page 3, line 11: After the number "894" add the words "(the extortionate credit transactions or "ETC" statute)".
Page 8, line 12: Add the word "an" before the word "additional".
Page 17, lines 17-18: Replace the words "Hobbs Act" with the words "ETC statute".
Page 23, line 25: Replace the words "Hobbs Act" with the words "ETC statute".
Page 24, line 8: Add the word "by" after the word "employed".
Page 29, line 16: Delete the quotation marks after the word "plus".
Page 30, line 18: Change the words "`Bible' and Daniel" to "`Bible'; and Daniel".
On the following pages and lines, substitute "ETC" for "Hobbs Act": Page 4, lines 7 and 10; page 6, line 16; page 15, lines 15, 18 and 22; page 17, lines 1, 5 and 11; page 18, line 21; page 22, line 8; page 27, line 23; page 28, lines 2, 4, 8-9 and 12.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 91-1769 UNITED STATES OF AMERICA,
FRANK ORETO, SR., Defendant, Appellant.
v. FRANK ORETO, JR.,
No. 91-1771 UNITED STATES OF AMERICA,
DENNIS PETROSINO, Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS [Hon. David S. Nelson, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Charles W. Rankin, by Appointment of the Court, with whom Rankin
& Sultan, Cornelius H. Kane, Jr, and Charles P. McGinty, Federal
Defender Office, were on consolidated brief for appellants. Sean Connelly, Department of Justice, with whom Donald K. Stern,
United States Attorney, Ernest S. DiNisco and Todd E. Newhouse,
Assistant United States Attorneys, were on brief for the United States.
October 4, 1994
BOUDIN, Circuit Judge. Frank Oreto, Sr., Frank Oreto,
Jr., and Dennis Petrosino ("the appellants") challenge their
convictions on a number of charges arising out of an alleged
loansharking ring operating in Revere, Massachusetts. We
affirm.
I. BACKGROUND
The appellants were charged in June 1987 in an
indictment with offenses under the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962, as well
as offenses involving the making of extortionate loans or
collection by extortionate means. 18 U.S.C. 892, 894 (the
extortionate credit transactions or "ECT" statute). The
original indictment was 137 pages long, contained 82 counts,
and named several other defendants besides the three who are
parties to this appeal. The structure of the charges is of
some importance.
Count 1 alleged a RICO conspiracy involving all of the
indicted defendants. The alleged predicate acts were 74
specific instances of extortionate lending or collection
transactions in violation of 18 U.S.C. 892, 894, and 62
specific instances of usurious lending as defined in 18
U.S.C. 1961(6). Count 2 charged each of the indicted
defendants with a substantive RICO violation and realleged
the same conduct as predicate acts. Counts 3 through 76 then
alleged each of 74 extortionate lending or collection
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transactions as individual conspiracies to violate 18 U.S.C.
892, 894, or--in ten instances--as individual extortionate
collections by Oreto, Sr. in violation of the latter statute.
(Counts 76-82 involved mail fraud charges against indicted
defendants other than the three appellants.)
Oreto, Sr., was named in most of the 74 transactions
that formed the basis for the RICO conspiracy, the
substantive RICO offense, and the 74 separate ECT statute
counts. Oreto, Jr., and Petrosino were also named in the
RICO conspiracy and RICO substantive counts and in a limited
number of the 74 transactions and the corresponding ECT
statute conspiracy counts. All three of the appellants
appeared in various of the 62 usurious loan transactions that
were also alleged predicate acts in counts I and II but were
not charged as separate conspiracies or substantive crimes in
any other count.
One of the defendants named in the indictment was
severed and tried separately. See United States v. Weiner, 3
F.2d 17 (1st Cir. 1993). Several other defendants
disappeared from the case for reasons not stated in the
briefs; at least one pleaded guilty and testified against
those who stood trial. The three appellants in this case
were tried together in a 143-day trial. At trial the
government offered seized records of loans and borrowers,
court-authorized wiretap recordings, and testimony by
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cooperating co-conspirators and individuals who had borrowed
money from Oreto, Sr. We state the facts in the light most
favorable to verdicts being appealed. Weiner, 3 F.2d at 19.
So viewed, the evidence permitted a reasonable jury to
find the following. Oreto, Sr. headed an enterprise which
made loans to over three hundred borrowers at weekly interest
rates of from three to seven percent. Those weekly rates
translate into annual interest of from 156 to 364 percent;
the maximum legal rate in Massachusetts, by contrast, is 20
percent annually. Mass. Gen. Laws. ch. 271, 49. Oreto,
Jr. and Petrosino served as collectors for the loansharking
operation. Over two dozen borrowers testified, various of
them asserting that Oreto, Sr. and his accomplices used
threats and intimidation to ensure payment of the loans.
The loansharking business was conducted from various
locations in or near Revere including both Oreto, Sr.'s home
and a function hall in which Oreto, Sr. was a silent partner.
The documentary evidence included the organization's "Bible,"
its master list of borrowers, debts, salaries and expenses.
"Frank, Jr.," and "Dennis" were listed among those who
received weekly salaries. Much of the trial was given over
to testimony by borrowers whose loans were corroborated by
entries in the Bible.
These witnesses testified that Oreto, Sr. employed tall,
physically imposing men--Petrosino, for example, is described
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in the record as between 6'1" and 6'2" tall and over 250
pounds in weight--to call upon delinquent borrowers and
threaten them--implicitly or explicitly--with physical harm
if the loans were not repaid. At least two witnesses
testified that they were physically assaulted by Oreto, Sr.'s
collectors, and many more borrowers testified that they
believed that harm would come to them if they failed to make
their payments.
The jury convicted each of the appellants on one count
of conspiring to violate RICO, 18 U.S.C. 1962(d), as well
as one substantive RICO count. 18 U.S.C. 1962(c). In
addition, Oreto, Sr. was convicted on 35 counts of conspiring
to collect loans by extortionate means, 18 U.S.C. 894; ten
counts of making extortionate loans, 18 U.S.C. 892; and
three counts of conspiring to make extortionate loans. Id.
The jury also convicted Oreto, Jr. on four counts, and
Petrosino on seven counts, of conspiring to collect loans by
extortionate means. At a later date, Oreto, Sr. was
sentenced to 20 years imprisonment on the RICO counts, to run
concurrently with 15 year sentences on the individual ECT
statute counts but consecutively to a life sentence he was
then serving in Massachusetts state prison for second degree
murder. Oreto, Jr. and Petrosino were sentenced to 6 years
and 10 years imprisonment, respectively, on each count of
-10- -10-
conviction, with all sentences to run concurrently. These
appeals followed.
II. THE MISCONDUCT CLAIMS
Appellants' first argument on appeal is that they were
prejudiced by prosecutorial misconduct involving in-court
identifications of them by a series of former borrowers. The
first indication of such misconduct occurred on March 29,
1990--three months into the trial--when an assistant United
States attorney asked John Doherty, a Revere fireman alleged
to have borrowed money from Oreto, Sr., to make an in-court
identification. Doherty had testified that a man named
"Dennis" had visited him on one occasion at work but, when
asked to identify Dennis, Doherty erroneously pointed to
Oreto, Jr.
On cross-examination, Doherty testified that he had been
told prior to entering the courtroom that the government
wished him to identify Petrosino, and that the seating
arrangement of the appellants at their counsel tables had
been described to him by an FBI agent who had been assisting
the prosecutors at trial. Doherty's confusion appears to
have arisen from the fact that there was more than one
defense table. Oreto, Jr. was sitting in the same position at
his table as Petrosino--the second seat from the right--but
at a different table. The defense moved for a mistrial and
requested a hearing on the issue.
-11- -11-
At a hearing beginning on April 2, 1990, the FBI agent
acknowledged that he had told Doherty the seating arrangement
of appellants prior to Doherty's entry into the courtroom.
This was done ostensibly for the purpose of reducing the
witnesses' nervousness by familiarizing them with the
courtroom layout. The agent also admitted conveying the
seating arrangement to two other witnesses. One was Joseph
Gazza, who had testified prior to Doherty and identified
Oreto, Sr., and the other was Michael DiCarlo, whom the
government chose not to call.
Two other witnesses testified at the hearing that they
had known where the defendants would be sitting: Ronald
Filipowich, who identified Oreto, Sr., and Frank Anderson,
who identified both Oreto, Sr. and Petrosino. Anderson,
however, said that he had such knowledge only because his
experience as a police officer, and Filipowich said that he
knew only that the defendants would be sitting in the "back"
of the courtroom. Later on, in May 1990, an additional
witness, Dennis Willcox, admitted that the FBI agent had told
him the courtroom seating arrangements two or three months
earlier. Willcox, however, was never asked to identify
anyone.
Following the hearing, the district court denied
defendants' motions for a mistrial and instructed the jury as
follows:
-12- -12-
Four witnesses--Mr. John Doherty, Mr. Joseph Gazza, Mr. Frank Anderson, Mr. Ronald Filipowich--gave testimony in the case before you. Each was asked to identify Mr. Frank Oreto, Sr., and each gave a reply. Prior to that session the Government team told Mr. Doherty, Mr. Gazza, Mr. Anderson, and Mr. Filipowich the seating arrangements of the defendants. Now, you must be instructed as to the following:
First, identification is an essential element that the Government must prove beyond a reasonable doubt.
2. You are to consider that evidence that seeks to prove that, and you must carefully weigh the testi- mony in determining what weight you shall give that testimony as you review it in your deliberations.
Suggestions as to identification may [a]ffect an in Court identification by making it the result of the suggestion rather than that which the witnesses actually saw or observed. Your responsibility is to determine from all the evidence whether or not the identifications made by the witnesses were based on their own actual knowledge and memory, and not on information provided them about the seating positions of the defendants provided by the Government.
Therefore, you may consider the fact that the Gov- ernment told the witnesses Doherty, Gazza, Anderson, and Filipowich about the seating arrangements of the defendants, and of Mr. Oreto, Sr. in particular, as you go about deciding how much weight and relevance you will give to those in Court identifications.
The district court's final charge to the jury included a
similar instruction. The court rejected the defense's
objections to this instruction, as well as alternative
instructions proffered by defense counsel.
Appellants now contend that the government's conduct
required a mistrial. Ordinarily, we will reverse a district
-13- -13-
court's denial of a motion for a mistrial only for an abuse
of discretion. E.g., United States v. Castiello, 915 F.2d 1,
3 (1st Cir. 1990), cert. denied, 498 U.S. 1068 (1991). The
government assumes, solely for purposes of this appeal, that
the revelation of defendants' seating arrangements to
identification witnesses was improper. It argues, however,
that there was no prejudice to any of the appellants.
We think this assertion is clearly correct with respect
to Oreto, Jr., who was not identified by any of the witnesses
who were told of the seating arrangement. It is equally
evident that Petrosino was not harmed by the allegedly
"staged" identifications: Doherty's misidentification of
Oreto, Jr. as Petrosino can have only undermined the
government's case against Petrosino. The only other disputed
identification of Petrosino--by Anderson--occurred in
connection with a count upon which Petrosino was not
convicted.
The identifications of Oreto, Sr. present a slightly
more difficult problem. Four of the five arguably tainted
witnesses pointed out Oreto, Sr. for the jury, and Oreto, Sr.
was convicted on three of the four counts to which those
witnesses testified. This court must therefore determine
whether the identification procedure was impermissibly
suggestive, and, if so, whether the identifications were
nonetheless reliable under all of the circumstances. E.g.,
-14- -14-
United States v. Gray, 958 F.2d 9, 13-14 (1st Cir. 1992). On
the latter issue, we conclude that the identifications of
Oreto, Sr. made were sufficiently reliable and the curative
instructions were such that a mistrial was not required.
This is not a case in which a marginal identification--
e.g., by a witness who only glimpses the perpetrator of a
crime--has been bolstered by improperly suggestive
identification procedures. See Neil v. Biggers, 409 U.S.
188, 199-200 (1972). Here, the witnesses identifying Oreto,
Sr. had dealt with him on numerous occasions and without any
attempt by Oreto, Sr. to mask his identity. These dealings
were corroborated by documents seized by the government.
Indeed, Oreto, Sr. did not claim that someone else had made
the loans in question, but rather that those transactions had
never involved threats or violence. Finally, defense counsel
were given ample opportunity to explore the defects in the
identification procedure on cross-examination and argue those
defects to the jury in summation.
Appellants also assert that the trial court improperly
foreclosed inquiry into "continuing misconduct in the
identification process" by the government. Specifically,
they argue that the court should have ordered Doherty, Gazza,
Anderson, and Filipowich to return to the stand after the
hearing in order to determine whether any part of their
testimony remained untainted. Appellants do not explain what
-15- -15-
they would have asked these witnesses during such further
testimony, over and above the thorough cross-examination
conducted during the witnesses' initial testimony.
One assistant United States attorney testified at the
April 2 hearing. Appellants complain that a second
prosecutor, who was co-counsel at the trial, should have been
ordered to testify. This testimony appears to have been
sought only to clarify certain details as to what information
was given to which witnesses. The government has asked us,
as it asked the trial court, to resolve all of these ambigu-
ities in the defense's favor and assume that each such
witness was told exactly where each defendant would be
sitting. The additional testimony sought by appellants could
not have given them more.
Appellants next say that the similar wording in
testimony given by several witnesses regarding the fear
element of the extortion counts may have indicated additional
government "coaching" of witnesses, and that the trial court
frustrated efforts to inquire into such misconduct. Several
of the witnesses testified that they feared that "harm would
come to them" if they did not repay their loans. Appellants
say that this syntax as unnatural, suggesting that its source
lay with the prosecution rather than the natural recollection
of the witnesses involved.
-16- -16-
A number of other witnesses testified using entirely
different formulations, and the fear element was amply
supported by additional evidence. Debtor Lloyd Plotkin, for
example, stated in an intercepted conversation with John
Costa, a manager in the loanshark organization, that he was
"afraid" of being "hit" and "slapped" by Oreto, Sr. Similar-
ly, other debtors testified at trial that violent means had
actually been employed against them. The defense had an
adequate opportunity on cross-examination to explore any
misconduct that might discredit the witnesses, and no further
fishing expedition was required.
The appellants also complain that they were not allowed
to call the assistant United States attorneys trying the case
as trial witnesses to testify about misconduct in the
identification process. A defendant must establish a
"compelling need" before being allowed to call a prosecutor
as a trial witness, a step that will usually require the
prosecutor to step aside. United States v. Angiulo, 897 F.2d
1169, 1194 (1st Cir.), cert. denied, 498 U.S. 845 (1990).
Here, the court dealt with the suggestive identifications
through the hearing and instructions. We think that this was
sufficient.1
1When the prosecutor testified at the April 2 hearing, he disclosed that Doherty had described the individual named "Dennis" who visited him at work--allegedly, Petrosino--as large, dark-haired and "Irish looking." Petrosino argues that the government violated Brady v. Maryland, 373 U.S. 83
-17- -17-
Appellants further contend that, in his closing
arguments to the jury, one of the prosecutors effectively
testified himself by saying, as to the tainted identifi-
cations, "Nobody attempted to cover it up, ladies and
gentlemen. Nobody lied." This was mild vouching, but we see
the statement as essentially harmless, especially in light of
the defense's repeated attempts to magnify the alleged
government misconduct and make it the focus of the case.
Reversal is not automatically required where improper remarks
by prosecutor are isolated and made in response to specific
attacks by defense counsel. United States v. Machor, 879
F.2d 945, 956 (1st Cir. 1989), cert. denied, 493 U.S. 1081
(1990).
At the close of the evidence, the defense proffered two
proposed instructions to be given by the trial court
regarding government misconduct in the identification
process. The first of these stated in part as follows:
It is improper for the government to tell a witness where a defendant is sitting in the courtroom. I have found that such conduct occurred here on four specific occasion, affecting the testimony of Mr. Doherty, Mr. Gazza, Mr. Anderson and Mr. Filipowich. I now instruct you that attempts by "the Government team" . . . to conceal or make up evidence, or to influence witnesses to testify favorably to the government, may be considered by
(1963), by failing to disclose Doherty's prior description to the defense (so it could point out that Petrosino did not look Irish). We agree with the district court that in the context of this case the supposed characterization was too vague to qualify as exculpatory under Brady.
-18- -18-
you as reflecting an attempt to unfairly convict a defendant.
. . . .
You must consider the number and extent of efforts to change or influence witnesses' testimony. To do this, you must evaluate the testimony of each wit- ness in this case, deciding whether any tampering may have affected each and every identification as well as any other evidence you have heard or re- viewed during the trial. Evidence of such tampering alone may create a reasonable doubt of the defendant's guilt.
A second proposed instruction concluded by stating that "[i]f
such government misconduct together with any other facts
adduced in support of this defense creates in your mind a
reasonable doubt of guilt of these charges, then you must
find the defendants not guilty of these charges."
Both of the proposed instructions invited the jury to
acquit the defendants primarily or solely on the basis of
misconduct by the government. Here, as in an earlier case
"[the] facts making up the theory, if believed, [would] not
defeat the factual theory of the prosecution." United States
v. Silvestri, 790 F.2d 186, 192 (1st Cir.), cert. denied, 479
U.S. 857 (1986). Putting the government on trial is a
favorite strategy of defense counsel, but it is not an
exculpatory theory which the defense is entitled to have the
judge formally present to the jury. See United States v.
Porter, 764 F.2d 1, 14 (1st Cir. 1985).
III. THE MERITS AND RELATED ISSUES
-19- -19-
Our discussion of the merits begins with the ECT statute
counts which, although listed later in the indictment, were
incorporated in the RICO counts as potential predicate acts.
Most of the ECT statute counts charged individual
conspiracies either to make extortionate extensions of credit
or to collect such extensions by extortionate means.
Appellants now claim that they were improperly charged and
convicted of multiple ECT statute conspiracies, whereas in
reality there were no distinct agreements separate from a
single overall loansharking conspiracy.
We have said that "[w]hether a given body of evidence is
indicative of a single conspiracy, multiple conspiracies, or
no conspiracy at all is ordinarily a matter of fact." United
States v. David, 940 F.2d 722, 732 (1st Cir.), cert. denied,
112 S. Ct. 605 (1991). It is true that if no reasonable jury
could on the evidence presented find the multiple
conspiracies charged, then a judgment of acquittal would be
warranted. It is a "heavy burden" to show that the evidence
precludes the findings made by the jury. United States v.
Innamorati, 996 F.2d 456, 469 (1st Cir.), cert. denied, 114
S. Ct. 409 (1993). Appellants here do not even try to carry
that burden.
Much of the trial was consumed by government evidence
directed to individual transactions. The appellants' brief
does no more with the evidence than point to connections
-20- -20-
between the credit transactions, including similarity of
methods, overlap of personnel, a general time frame, and
common locations. These factors might have justified the
jury in finding only one large conspiracy. They hardly show
that the jury could not find the requisites of smaller
individual conspiracies: a specific agreement, and the
required intent, as to each loan transaction.
The appellants' brief quotes from statements by
government counsel to the jury, arguing that the evidence
shows the connections necessary to prove the overarching RICO
conspiracy charged in count 1. But the requirements for a
RICO conspiracy are different than the requirements for a ECT
statute conspiracy, whether the latter relates to a single
transaction or one that embraces a number of transactions.
Here there is no inconsistency in the government arguing
that--in addition to the RICO conspiracy--individual ECT
statute conspiracies have also been proved.
The second branch of appellants' multiplicity argument
is an attack on the jury instructions. Appellants say that
even if the evidence permitted a finding of separate
conspiracies, the defense was entitled to instructions that
set forth the defense theory that there was (at most) only
one ECT statute conspiracy. Further, they say, the court was
obliged to give the jury guidance, as reflected in proposed
defense instructions, on how to distinguish between one large
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conspiracy and several smaller ones. The two instructions in
question--numbers 12A and 23--are lengthy and overlapping;
the former is concerned with RICO and the latter with the ECT
statute. The district court gave neither.
In substance, each of the requested instructions asks
the jury to determine "whether two or more charged
conspiracies are really the same offense"; both set forth the
multiple factor test that this and other courts have used in
considering double jeopardy claims in the conspiracy context;
and both refer to the possibility that the jury could find
"that the multiple conspiracies charged in the indictment
were not separate and distinct." One of the instructions
cited United States v. Gomes-Pabon, 911 F.2d 847, 860 (1st
Cir.), cert. denied, 498 U.S. 1074 (1991), which discussed
the multi-factor test.
It is common practice, especially in drug cases, for the
government (because of various procedural advantages that
inhere) to charge a single large conspiracy. In turn, the
defendants often claim that, at worst, only smaller (often
uncharged) conspiracies existed. Where requested, trial
courts may then give a so-called multiple conspiracies
charge, inviting the jury to consider the possibility that
the large conspiracy has not been proved but instead that
only smaller conspiracies may have been shown. 1 L. Sand, J.
Siffert, W. Loughlin & S. Reiss, Modern Federal Jury
-22- -22-
Instructions 19-01, at 19-24 to 19-34.3 (1993). See
generally Kotteakos v. United States, 328 U.S. 750, 773-74
(1946).
By contrast, we are concerned here with the defense
proposing an instruction that contemplates a larger single
conspiracy. The government thinks that it is enough, in this
case, that the jury was properly instructed on the elements
of each type of conspiracy charged (namely, the RICO
conspiracy and the various ECT statute conspiracies), and
that the jury was also told to acquit if it found that a
conspiracy as charged had not been proved. It quotes from
the district court's instructions:
If you find that any defendant participated in a conspiracy but it was different from those charged in the indictment, that determination would provide no basis for finding that defendant guilty of the offense charged.
If you find that the conspiracy charged did not exist, then you must return a verdict of not guilty even though you find that some other conspiracy did, in fact, exist.
The government concludes that "[i]f an individualized
conspiracy is established, it is not a legitimate defense
that the defendant engaged in a broader conspiracy involving
multiple victims."
This position has some appeal, but it does not entirely
meet the reality that a jury's choice may be influenced by
the alternatives presented. Thus, "[a]n accused is entitled
to an instruction on his theory of defense so long as the
-23- -23-
theory is a valid one and there is evidence in the record to
support it." United States v. Rodriguez, 858 F.2d 809 (1st
Cir. 1988). Similarly, a defendant has a right to a lesser
included offense charge, where the evidence would permit a
jury to find that only a lesser included offense occurred.
E.g., Keeble v. United States, 412 U.S. 205 (1973). If such
instructions were warranted but nevertheless omitted, it
would not be an answer to say that the jury convicted and
that the evidence was sufficient to support the conviction.
The question what a district court should tell a jury,
where multiple conspiracies are charged but the defense urges
a single large conspiracy, is a difficult one and is probably
not susceptible to an abstract answer unrelated to context.
One reason is that quite different situations may be
presented: for example, the colorable "single large
conspiracy" might in one case be an entirely different entity
with different actors and objectives and, in another, be
nothing more than a different characterization of the very
same acts charged as multiple conspiracies. In the former
case, the charge in the two indented paragraphs quoted above
would probably protect the defendants pretty effectively even
without a specific reference to a "single" conspiracy.
Our situation is more akin to the latter case. At best,
the defendants have engaged in a series of transactions that
could be viewed as a set of separate conspiracies, or one
-24- -24-
overall conspiracy embracing numerous wrongful transactions,
or (putting double jeopardy issues to one side) both an
overarching conspiracy and a nest of underlying smaller
conspiracies. Partly this is a problem of proof and
inference; partly the problem arises from trying to squeeze
into the conceptual cubbyhole of "an agreement" activities
that in practice often have the more shapeless character of
an evolving joint criminal enterprise. See United States v.
Sepulveda, 15 F.3d 1161, 1191 (1st Cir. 1993), cert. denied,
114 S. Ct. 2714 (1994); United States v. Moran, 984 F.2d
1299, 1300 (1st Cir. 1993).
In all events, in such a case as ours we do not think
that a defendant--even if arguably entitled to a "single
conspiracy" instruction--is entitled to what the defense
sought here, namely, a direction to the jury to acquit if it
finds that the "two or more charged conspiracies are really
the same offense." If the various charged conspiracies are
really parts of the same conspiracy, then at worst the
defendant has been charged twice or more with the same
offense and can be convicted (or at least punished) only for
one conspiracy. Cf. Ball v. United States, 470 U.S. 856,
864-65 (1985). An outright acquittal on all counts would be
miscarriage of justice.
Both of the instructions sought here are fundamentally
flawed because they sought a direction to the jury to acquit
-25- -25-
if it found a single conspiracy. The law is well settled,
and for rather obvious reasons, that the district judge is
not required to edit a proposed instruction to delete the bad
and preserve the good. United States v. Flaherty, 668 F.2d
566 (1st Cir. 1981); United States v. Leaching, 427 F.2d 1107
(1st Cir. 1970). Rather, to preserve an ordinary claim of
error based on the refusal to give an instruction, counsel
must proffer a substantially correct statement of the law.
The acquittal direction alone makes the defense instructions
improper in the context of this case.
The request for a "single conspiracy" instruction is
likely to be rare. Usually, as already noted, the government
presses this theory and the defense resists; it was sought by
the defense here because the defense thought (mistakenly, as
we explain below) that a single conspiracy would insulate the
defendants against a RICO conviction. Accordingly, we think
that we can properly put off to another day the very
difficult problem of deciding whether and when such a single
conspiracy instruction should be given, a problem fraught
with practical difficulties in explaining matters to the jury
as well as the theoretical ones to which we have adverted.
One other general claim of error relating to the ECT
statute counts remains to be considered. In order to prove
that an extension of credit was extortionate under 18 U.S.C.
892, the government was obligated to prove that the debtor
-26- -26-
(as well as the defendant) believed that the debt might be
collected, or that nonpayment might be punished, by
extortionate means, that is, by violence or other harmful
criminal means. 18 U.S.C. 891(b). This element was
contested at trial. Over defense objection, the trial court
allowed one of the alleged loanshark borrowers, Joe Gazza, to
testify that he knew Oreto, Sr. "got out of jail for murder."
This testimony was elicited by the government on
redirect, after Gazza admitted on cross-examination that he
had never been directly threatened. The redirect was
admitted by the trial court solely for the purpose of showing
a basis for Gazza's fears that Oreto, Sr. might resort to
violence to ensure repayment. Appellants now challenge the
trial court's admission of the testimony, noting its highly
prejudicial nature and the lack of any connection between the
prior murder and Oreto, Sr.'s alleged loansharking
activities.
Appellants' argument is largely foreclosed by our
decision in United States v. DeVincent, 546 F.2d 452 (1st
Cir. 1976). In that case, which also involved allegations
that the defendant made extortionate extensions of credit in
violation of 18 U.S.C. 892, the trial court admitted
testimony regarding the defendant's twenty-year-old
conviction for armed robbery and his ten-year-old murder
indictment. Upholding this decision, Judge Coffin explained:
-27- -27-
Neither of the events could be admitted to show that DeVincent was a bad man. If known to the debtor, however, they can be admitted to show an element of the crime--the understanding of the debtor that default would be punished with violence. The debtor's awareness of the lender's earlier conviction, or even indictment, for a violent crime surely affects his view of the lender's likely collection practices.
546 F.2d at 456-57.
DeVincent clearly holds that a prior conviction for a
violent crime--even one wholly unrelated to the defendant's
lending activities--may, if known to a debtor, influence the
latter's reasonable expectations as to how the lender may
collect the loan. It is true that the ECT statute itself
permits reputation evidence--usually a reputation for
violence--in more restricted situations. See 18 U.S.C.
892(c), 894(c). But these provisions do not explicitly bar
evidence of specific prior bad acts, as permitted under Fed.
R. Evid. 404(b), when offered to show the basis for a
victim's fear, and cases besides DeVincent have followed that
course. The weighing of prejudice against probative value is
otherwise largely for the trial court, see Fed. R. Evid. 403,
and no abuse of discretion has been shown here.
We next consider several general attacks on the RICO
convictions. The RICO statute makes it a crime for "any
person employed by or associated with any enterprise engaged
in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly,
-28- -28-
in the conduct of such enterprise's affairs through a pattern
of racketeering activity or collection of unlawful debt." 18
U.S.C. 1962(c). The district court gave the following
instruction on the meaning of "conduct or participate . . .
in the conduct of" an enterprise under the statute:
The term "conduct" and the term "participate in the conduct of" an enterprise include the performance of acts, functions or duties which are necessary to or helpful in the operation of the enterprise. A person may be found to conduct or to participate in the conduct of an enterprise even though he is a mere employee having no part in the management or control of the enterprise and no share in the prof- its.
In Reves v. Ernst & Young, 113 S. Ct. 1163 (1993), the
Supreme Court held that an outside accounting firm employed
by an enterprise was not subject to civil RICO liability
unless it "participate[d] in the operation or management of
the enterprise itself." Id. at 1173. Relying on Reves,
Oreto, Jr. and Petrosino argue that "mere employees" by
definition do not participate in the "operation or manage-
ment" of the enterprise. It is true that in Reves the Court
expressly declined to decide "how far 1962(c) extends down
the ladder of operations." 113 S. Ct. at 1173 n.9. Further,
the Court observed that "some part in directing the
enterprise's affairs is required." Id. at 1170.
Reves is a case about the liability of outsiders who may
assist the enterprise's affairs. Special care is required in
translating Reves' concern with "horizontal" connections--
-29- -29-
focusing on the liability of an outside adviser--into the
"vertical" question of how far RICO liability may extend
within the enterprise but down the organizational ladder. In
our view, the reason the accountants were not liable in Reves
is that, while they were undeniably involved in the
enterprise's decisions, they neither made those decisions nor
carried them out; in other words, the accountants were
outside the chain of command through which the enterprise's
affairs were conducted.
The government did not show that Oreto, Jr. or Petrosino
participated in the enterprise's decisionmaking; but they and
other collectors were plainly integral to carrying out the
collection process. Reves defines "participate" as "to take
part in," 113 S. Ct. at 1170, and nothing in the Court's
opinion precludes our holding that one may "take part in" the
conduct of an enterprise by knowingly implementing decisions,
as well as by making them. Indeed, the Court said that "[a]n
enterprise is `operated' not just by upper management but
also by lower-rung participants in the enterprise who are
under the direction of upper management." 113 S. Ct. at 1173
(emphasis added).
Congress declared in RICO that the statutory purpose was
"to seek the eradication of organized crime in the United
States" and Congress listed "loan sharking" as a means by
which "organized crime derives much of its power." See Pub.
-30- -30-
L. 91-452, 1 (Statement of Findings and Purpose following
18 U.S. C. 1961). RICO also provides expressly that
"collection of unlawful debt" is a predicate for RICO
liability. This conduct is precisely what the government
charged, and the jury found, was engaged in by the present
appellants. We think Congress intended to reach all who
participate in the conduct of that enterprise, whether they
are generals or foot soldiers.2
Appellants have also challenged a second aspect of the
RICO instructions. A defendant may violate RICO by
participating in either a "pattern of racketeering activity"
or "collection of unlawful debt." 18 U.S.C. 1962(c). The
racketeering prong of the statute requires, at a minimum, "at
least two acts of racketeering activity . . . ." 18 U.S.C.
1961(5). In this case, the predicate acts specified in the
indictment against Oreto, Jr. and Petrosino were conspiracies
to collect individual loans by extortionate means in
violation of 18 U.S.C. 894. See 18 U.S.C. 1961(1)(B)
(specifying violations of 18 U.S.C. 891-94 as valid
predicate acts under RICO).
2Appellants also claim prejudice from the district court's failure to complete its explanation of the "association with or employment by the enterprise" element of 1962(c) after an interruption. Appellants have not explained how they were harmed by the omission and the language apparently omitted would have been primarily helpful to the government.
-31- -31-
Appellants objected to the trial court's instruction
that the jury could find a pattern of racketeering activity
if the appellants committed or aided and abetted the
commission of at least two of the specified racketeering
acts. Our court has observed that "[a]iding and abetting is
an alternative charge in every count, whether explicit or
implicit," United States v. Sanchez, 917 F.2d 607, 611 (1st
Cir. 1990) (internal quotations omitted), cert. denied, 499
U.S. 977 (1991), and it appears that most if not all courts
to consider the issue have held that a defendant may be
convicted of aiding and abetting a conspiracy. See, e.g.,
United States v. Gonzalez, 933 F.2d 417, 444-45 (7th Cir.
1991); United States v. Portac, Inc., 869 F.2d 1288, 1293
(9th Cir. 1989), cert. denied, 498 U.S. 845 (1990).
Oreto, Jr. and Petrosino also argue that because there
was only a single ECT statute conspiracy involving these
appellants, the government failed to prove the two predicate
acts necessary for a pattern of racketeering. 18 U.S.C.
1961(5). Contrary to appellants' hopes we do not see why the
possibility of a single ECT statute conspiracy (and it is
only that) should infect the RICO convictions. Quite apart
from other possible answers, we think it is enough that the
specific ECT statute conspiracies charged as predicate acts
of racketeering were each also conspiracies to make
extortionate loans or collect loans by extortionate means.
-32- -32-
This court has already held in Weiner that one such ECT
statute conspiracy is enough for a RICO violation because the
pattern requirement does not apply to the collection of
unlawful debt. Even if the jury had convicted only on a
single ECT statute conspiracy, the one charged in this case
happens to suffice under the alternative prong of RICO. 18
U.S.C. 1962(c). We need not consider whether a single
conspiracy shown to have embraced multiple acts of wrongdoing
might also satisfy the racketeering prong where unlawful debt
was not involved so that at least two racketeering acts were
required.
Confronting Weiner appellants argue that our
construction of section 1962(c) in Weiner renders the statute
unconstitutional. They say that requiring two predicate acts
for one theory of liability but only one for a different
theory violates the equal protection clause, apparently
because one defendant may be found guilty more readily than
another under the same statute. The statutory distinction
employs no suspect classification nor burdens a fundamental
right, so we must uphold the statute if the disparity is
"rationally related to the State's objective." Harrah
Independent School District v. Martin, 440 U.S. 194, 199
(1979) (per curiam).
Congress could rationally have decided that collections
of unlawful debt were central to the evils at which RICO was
-33- -33-
directed. Accordingly, it could rationally have chosen to
make guilt more easily provable in unlawful debt cases than
in cases involving other forms of racketeering activity.
Whether this rationale was the actual motivation for the
statutory distinction is irrelevant to our inquiry, see
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466
(1981), although Congress' statement of purposes (quoted
above) gives some reason to believe that Congress did so
reason.
A due process argument advanced by appellants is equally
without merit. In essence, they appear to argue that the
"continuity plus relationship" test for a "pattern" under
section 1962(c) is so inherently vague as to be
unconstitutional. We rejected a similar argument in United
States v. Angiulo, 897 F.2d 1169, 1179-80 (1st Cir. 1990),
holding that any vagueness challenge to section 1962(c) must
show "that the meaning and scope of RICO's `pattern' element
was unclear and vague" as applied to the defendants' conduct
in the particular case. The appellants in the present case
have not even attempted such a demonstration.
Oreto, Jr. and Petrosino each challenge the sufficiency
of the evidence to support their convictions on various
counts of the indictment. Oreto, Jr. contends that there was
insufficient evidence to support the jury's guilty verdicts
both on the four counts of conspiracy to collect extensions
-34- -34-
of credit by extortionate means, 18 U.S.C. 894, and on the
RICO counts. He argues that the first two conspiracy counts-
-counts 10 and 14 of the indictment--cannot be sustained
because neither of the alleged victims testified and the
government failed to identify the voices on wiretap tapes
used to secure the convictions.
As to the wiretaps, both FBI Special Agent Gianturco and
Massachusetts State Trooper Thomas Foley testified to their
familiarity with the voices in question and identified the
speakers on the tapes for the jury. Further, the illegal
loans to Mario Singarella (count 10) and Gary Plotkin (count
14) were corroborated, by documentary evidence in the
loanshark organization's 'Bible'; Daniel Forte, a cooperating
co-conspirator, testified at trial as to Oreto, Jr.'s
involvement in efforts to collect each loan. The evidence
was more than sufficient.
Oreto, Jr. challenges his conviction on count 67 of the
indictment, involving extortionate collection of a loan to
Joseph Brangiforte, on the ground that Brangiforte failed to
identify Oreto, Jr. as the person Brangiforte repaid. There
was ample other evidence, however, that Oreto, Jr. was
involved with the Brangiforte loan: Brangiforte testified
that he made a payment to Oreto, Jr. near the Wonderland MBTA
station; the government produced wiretap recordings of
Brangiforte and Oreto, Jr. discussing the loan; and Trooper
-35- -35-
Foley testified that he saw Brangiforte give Oreto, Jr. an
envelope. Again, the evidence was sufficient. Brangiforte's
inability to pick out Oreto, Jr. in the courtroom was fodder
for jury argument, but is not in itself fatal to the
conviction. See United States v. Doherty, 867 F.2d 47, 67
(1st Cir.), cert. denied, 492 U.S. 918 (1989).
Oreto, Jr.'s challenge to count 16 presents a closer
question. That count involved extortionate collection of a
loan to Eleanor Kelley, and Oreto, Jr. claims his conviction
was improper because "[t]here was simply no evidence that
Eleanor Kelley . . . was in fear." The debtor's subjective
fear is not itself an element of the offense under 18 U.S.C.
894, although actual fear may be pertinent evidence. "[I]t
is the nature of the actions of the person seeking to collect
the indebtedness, not the mental state produced in the
debtor, that is the focus of the inquiry for the jury."
United States v. Polizzi, 801 F.2d 1543, 1548 (9th Cir.
1986). See generally 1 Sand, supra, 32.02, at 32-16.1.
Here, the government offered evidence that Oreto, Jr.
and two other strangers visited Kelley at her place of
business in order to ask Kelley to contact Oreto, Sr. about
the loan. The government also showed that the loan itself
was grossly usurious. After a reading of the testimony as to
the visit, we think that a reasonable jury could determine
that the nature of the loan, its interest rate, and the
-36- -36-
appellants' collection methods were not of the sort commonly
employed by legitimate lenders, and that the appellants'
tactics carried an implicit threat of violence.
Oreto, Jr. also argues that the government failed to
demonstrate that he "participated in the management or
control of the alleged enterprise" because the proof showed
only that he "was a mere collector for a short period of
time." There is no requirement that participation extend
over a long period. Here, the evidence showed that Oreto,
Jr. was directly involved in at least four transactions in
connection with his father's loansharking enterprise. The
evidence is sufficient to sustain both the substantive RICO
and RICO conspiracy convictions.
Petrosino also challenges his RICO convictions on
evidentiary grounds, contending that the government proved
only that he was "a collector paid $50 weekly for a bare five
months" and that this is insufficient to show that he
"participated in the operation or management of the
enterprise itself." The statute requires neither that a
defendant share in the enterprise's profits nor participate
for an extended period of time, so long as the predicate act
requirement is met. Petrosino participated in the collection
of seven separate loans by extortionate means. Those actions
are sufficient.
-37- -37-
Lastly, appellants objected at trial to the following
instruction given by the trial court to define the concept of
"reasonable doubt":
A reasonable doubt is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence in the case. A reasonable doubt does not mean beyond all doubt. Rather it means a doubt based upon reason.
Appellants' challenge rests upon the Supreme Court's decision
in Cage v. Louisiana, 498 U.S. 39 (1990), which held to
equate reasonable doubt with an "actual substantial doubt"
was constitutionally inadequate. Arguing that "real doubt"
in the present instruction is equivalent to "substantial
doubt," appellants now argue that their convictions must be
reversed due to the faulty instruction. See Sullivan v.
Louisiana, 113 S. Ct. 2078 (1993) (erroneous instruction on
reasonable doubt cannot be harmless error).
The objection to the phrase "substantial doubt" is that
it is ambiguous. If taken to mean "large" or something like
it, the instruction may mislead the jury into thinking that a
small but reasonable doubt is no bar to conviction. But the
phrase would be "unexceptionable" if taken to mean that the
doubt must be "something more than a speculative one."
Victor v. Nebraska, 114 S. Ct. 1239, 1250 (1994). The term
used here, "real," is not subject to the same ambiguity; its
natural antonym is "unreal" or" imaginary," which are proper
descriptions of what would not be a reasonable doubt. Id. at
-38- -38-
1250. Boilerplate might be preferable, but there was no
error.
Affirmed.
-39- -39-