United States v. Spero

59 F. App'x 365

• Court: Court of Appeals for the Second Circuit
• Decided: February 28, 2003
• Docket: No. 02-1256
• Status: Published

Opinion

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 28th day of February, two thousand and three.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

Defendant Anthony Spero appeals from a judgment of conviction entered on April 19, 2002.

After a jury trial, Spero was found guilty of one count of conspiracy to commit racketeering, in violation of the Racketeering Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d). Spero filed a post-trial motion for a judgment of acquittal under Rule 29(c) asserting, inter alia, (1) that the lone RICO count under which he was convicted was barred by the five-year statute of limitations and (2) that the indictment under which he was charged was insufficiently specific. The District Court held oral argument on his claims on December 14, 2001, and it rejected Spero’s arguments in an order dated April 15, 2002. The Court stated as follows:

The motion is denied. The statute of limitations argument on which the oral argument focused is foreclosed by Second Circuit precedent. See e.g. U.S. v. Salerno, 868 F.2d 524, 534 (2d Cir.1989). The remaining grounds are without merit.

Spero was subsequently sentenced primarily to life imprisonment.

On appeal, Spero renews the two claims described above.

I. Statute of Limitations Claim Spero contends that the lone RICO count under which he was convicted was barred by the five-year statute of limitations governing RICO prosecutions. See 18 U.S.C. § 3282 (“[N]o person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found ... within five years next after such offense shall have been committed.”). The original indictment in this case was returned on May 25, 1999. Thus, in order for this prosecution to fall within the five-year limitations period, the RICO conspiracy charged must be deemed to have continued at least through May 25,1994.

In the sixth superseding indictment under which Spero was ultimately charged, the Government alleged that Spero, while conducting the affairs of the Bonanno Organized Crime Family, conspired in violation of 18 U.S.C. § 1962(d) to engage in five specifically enumerated racketeering acts prohibited by 18 U.S.C. § 1962(c). It is uncontested that Racketeering Acts #2-5 charged in the indictment (which acts consist of three murders and conspiracy to participate in an illegal gambling enterprise) were all completed by the end of 1993. With respect to Racketeering Act # 1, the Government charges that Spero engaged in a conspiracy to make and collect extortionate extensions of credit between January 1983 and May 1999.¹ This allegation, if proven, would bring the charged conduct within the limitations period. However, Spero asserts that the Government has failed to prove that any of his loansharking activities, which were primarily associated with an illegal gambling enterprise that folded in December 1993, took place on or after May 25,1994.

The District Court held that Spero’s arguments were precluded by our precedent in United States v. Salerno, 868 F.2d 524 (2d Cir.1989), which in turn relied on United States v. Persico, 832 F.2d 705 (2d Cir.1987), which it read as standing for the proposition that once the Government established that Spero continued to act as a member of the Bonanno Organized Crime Family after May 25, 1994, the RICO conspiracy with which he was charged was deemed to have operated after that date as well-regardless of when Racketeering Act # 1 took place. Spero, however, asserts that the District Court misapprehended the above precedents, and he argues that the District Court’s view of the law is untenable because it would mean that “once you joined an organized crime family, the conspiracy would continue in perpetuity until you left the family, and that’s not what a RICO conspiracy is.” Tr. at 286-87.

Assuming without deciding that Spero’s statute of limitations claim was properly raised in the District Court,² it is unnecessary to determine whether the District Court correctly interpreted Pérsico and Salerno because, as we explain below, we hold that Spero has failed to rebut the presumption that the loansharking conspiracy charged in Racketeering Act # 1 continued past May 25,1994. Accordingly, Spero’s prosecution was timely because Racketeering Act # 1 is presumed to have continued past May 25,1994.

Where a conspiracy statute does not require proof of an overt act, see 18 U.S.C. § 1962(d), and “[wjhere a conspiracy contemplates a continuity of purpose and a continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has been terminated.” United States v. Maloney, 71 F.3d 645, 660 (7th Cir.1995) (quoting United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir.1993) (quoting United States v. Mayes, 512 F.2d 637, 642 (6th Cir.1975))) (emphasis added); see United States v. Gonzalez, 921 F.2d 1530, 1548 (11th Cir. 1991); cf., e.g., United States v. Flaharty, 295 F.3d 182 (2d Cir.2002) (holding, where an overt act is required, that a conspiracy is presumed to continue until the last overt act); United States v. Diaz, 176 F.3d 52, 98 (2d Cir.1999) (same). The generalized loansharking activity alleged in Racketeering Act # 1 is precisely the type of activity that contemplates a “continuity of purpose and a continued performance of acts.” Indeed, we have previously noted that “acts of extortion and illegal debt collection inherently exude a ‘pattern’ and a threat of continuing criminal activity.” United States v. Minicone, 960 F.2d 1099, 1107 (2d Cir.1992). Once the Government established that the loansharking conspiracy existed, it was entitled to a presumption that the conspiracy continued until defendant demonstrated otherwise; that is, Spero was required to prove that the loansharking conspiracy alleged in Racketeering Act # 1 was affirmatively terminated before May 25, 1994 in order to assert his statute of limitations claim.

The only way in which Spero could have demonstrated that the conspiracy was terminated prior to May 25, 1994 was through a showing either (1) that the objectives of the conspiracy were accomplished or (2) that he had abandoned the conspiracy. See Pérsico, 832 F.2d at 713 (holding that a RICO conspiracy continues until the objectives of the conspiracy are either “accomplished or abandoned”); see also United States v. Rastelli, 870 F.2d 822, 838 (2d Cir.1989) (same). With respect to the first of these possible showings, because the alleged objective of the conspiracy was an open-ended attempt to extort money through loansharking, Spero needed to present evidence from which the jury could have found that the goals of the conspiracy were accomplished in some final manner. Although Spero attempts to frame the loansharking acts alleged in Racketeering Act # 1 as limited exclusively to actions taken in connection with an illegal gambling enterprise that folded in 1993, the indictment is not so limited. See note 1, ante. The fact that the gambling enterprise folded in 1993 is insufficient to establish that Spero’s loansharking activities were complete as of that date, given the generalized allegations in the indictment. Second, Spero produced no evidence that he affirmatively renounced the goal of extorting money through loansharking. To the contrary, the evidence presented at trial would tend to support the opposite conclusion, i.e., that he never renounced the goals of the loansharking conspiracy.

In the absence of proof that the goals of the loansharking conspiracy alleged in Racketeering Act # 1 were achieved in a final manner or that Spero withdrew from the conspiracy, the conspiracy must be presumed to have continued past May 25, 1994, thereby bringing the indictment within the statute of limitations.

II. Constitutionally Deficient Indictment Claim

Spero also asserts that he should be acquitted because the indictment in which he was charged was constitutionally deficient. More specifically, he claims that the Government’s charge with respect to Racketeering Act # 1, which alleged only a “generic” conspiracy to “make extortionate extensions or collections of credit,” was insufficiently specific to apprise him of the charges against him. Because this claim was not raised prior to trial, as unambiguously required by our opinion in United States v. Crowley, 236 F.3d 104 (2000), the claim must be rejected.

In Crowley, we explained that, in accordance with Fed.R.Crim.P. 12(b)(2), any challenge to an indictment must be brought prior to trial because:

Th[e] mandate [of Rule 12(b)(2) ] is no mere pleading technicality. [I]t serves a number of important purposes, including deterrence of gamesmanship-Rule 12(b)(2) prevents a defendant from deciding whether to object to an indictment’s purported lack of specificity based solely on whether he is convicted or acquitted-and insuring that indictments are not routinely challenged (and dismissed) after the jury has been seated and sworn, a result that would waste jurors’ time and force courts frequently to confront complex Double Jeopardy questions. Id. at 108. The concerns identified in Crowley are precisely the reasons that we decline to examine Spero’s challenge to the specificity of the indictment in the instant case.

If Spero had been truly concerned that the lack of specificity in the indictment would prejudice his defense, he could have raised an objection prior to trial, at which point the District Court could have dismissed the indictment if it was deficient, leaving the door open to more complete criminal charges at a later time. However, Spero cannot, in the absence of cause and prejudice, challenge his indictment after his trial began and ended because, if his claim were found to be meritorious, the court considering the challenge could not simply dismiss the indictment to allow for more complete charges to be brought. Instead, a court in such a position would have to acquit, and Spero could not be retried based on double jeopardy concerns. This result would be a grave injustice. Such a strategy of “sandbagging” in the District Court cannot be countenanced. Cf. Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir.2002); United States v. Male Juvenile, 121 F.3d 34, 39 (2d Cir.1997).

We noted in Crowley that a failure to raise a challenge to an indictment prior to trial may be excused upon a showing of cause for failure to raise the claim and prejudice. Crowley, 236 F.3d at 110. However, Spero has offered no reason why he did not raise his insufficiency-of-the-indictment claim prior to trial and, accordingly, he has not shown cause for his failure to challenge his indictment prior to trial. Spero’s claim must therefore be rejected.³

$ ^ ^ ^ ^

We have considered all of the defendant’s arguments. For the reasons set forth above, the judgment of the District Court is hereby AFFIRMED.

1 . Racketeering Act # 1 is described in the indictment as follows:

16. The defendant ANTHONY SPERO agreed to the commission of the following acts, either one of which alone constitutes racketeering act one:

A. Conspiracy to Make Extortionate Extensions of Credit

17. In or about and between January 1983 and May 1999, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant ANTHONY SPERO, together with others, knowingly and intentionally conspired to make extortionate extensions of credit, in violation of Title 18, United States Code, Section 892.

B. Conspiracy to Collect Extensions of

Credit by Extortionate Means

18. In or about and between January 1983 and May 1999, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant ANTHONY SPERO, together with others, knowingly and intentionally conspired to participate in the use of extortionate means to collect and attempt to collect extensions of credit, in violation of Title 18, United States Code, Section 894(a)(1). United States v. Spero, No. 99 Cr. 520 (Superseding Indictment S-6) (ERK) (E.D.N.Y.).

2 . A statute of limitations claim presents "an affirmative defense” that is "not cognizable on appeal unless properly raised below.” United States v. Walsh, 700 F.2d 846 (2d Cir. 1983). With respect to the question of when a claim is “properly raised below,” we held in United States v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980), that "[w]here the defense!] of time-bar [is] squarely interposed, [it] must be submitted to a properly instructed jury for adjudication.” Id. at 1022. Similarly, in Walsh, we noted with disapproval that "[no] objection [was] taken to the trial court’s failure to give such an instruction to the jury.” Walsh, 700 F.2d at 855. Because the defendant in this case raised his statute of limitations defense in this case only after the trial was complete, and therefore did not allow the court even to consider a jury instruction on the limitations question, there is a strong argument that Spero's statute of limitations claim should be considered waived or forfeited. See United States v. Kelly, 147 F.3d 172, 177 (2d Cir.1998) (holding that waiver applies to a defendant’s failure to raise a statute of limitations defense in the District Court); Walsh, 700 F.2d at 855 (same); Grammatikos, 633 F.2d at 1022-23 (stating that a statute of limitations defense is "waived” where no request for a jury instruction on the issue is made, but also undertaking a "plain-error” forfeiture analysis). However, we do not reach this question.

3 . In his reply brief, Spero also asserts that the Government engaged in a "constructive amendment” of the indictment of this case, which is a per se violation of the Fifth Amendment, requiring reversal of the conviction. Because this claim was not raised in the District Court or in defendant’s main appellate brief, and because no plain error is apparent, we will not consider that claim. See, e.g., O’Hara v. Weeks Marine, Inc., 294 F.3d 55, 67 n. 5 (2d Cir.2002).