The opinion of the court was delivered by: SWEET
After a five-week multi-defendant jury trial, defendant Anthony Rabito ("Rabito") was found guilty on two counts of a four-count indictment. Defendant Antonio Tomasulo ("Tomasulo") was found guilty on one count. Rabito had been charged in three of the counts with participation in a racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count One) (hereinafter referred to as "RICO"), possession with intent to distribute methaqualone in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (A) (Count Three), and conspiracy with intent to distribute methaqualone in violation of 21 U.S.C. § 846 (Count Four). Tomasulo had been charged in only the RICO count. Rabito was named in five predicates in the RICO count, one involving his methaqualone activities, the other four involving murder conspiracies. Tomasulo was named in two predicates, one involving a conspiracy to distribute methaqualone, the other involving a conspiracy to conduct a gambling business in violation of 18 U.S.C. § 1955.
Rabito was found guilty on Counts Three and Four, and not guilty on the RICO count. Tomasulo was found guilty on the one count he was charged with. Both Rabito and Tomasulo now move pursuant to Fed.R.Crim.P. 29(c) and 33 for judgment of acquittal, or in the alternative for a new trial, respectively. For the reasons stated below, the motions will be denied.
A motion for judgment of acquittal is addressed to the sufficiency of the Government's evidence. The classic formulation of the test, adopted in this circuit, requires the court to:
determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilty beyond a reasonable doubt.
United States v. Lieberman, 637 F.2d 95, 104-05 (2d Cir. 1980), (quoting Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229, 232-33 (D.C.Cir.), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947)). The evidence is viewed in the light most favorable to the Government. United States v. Stirling, 571 F.2d 708 (2d Cir.), cert. denied, 439 U.S. 824, 58 L. Ed. 2d 116, 99 S. Ct. 93 (1978).
Applying this standard to Rabito, his Rule 29 motion must be denied. He was found guilty of substantive and conspiracy charges involving possession of methaqualone with intent to distribute. The Government's evidence consisted of numerous wiretap recordings of Rabito in which he used jargon which expert testimony by a qualified Government witness showed referred to dealings in methaqualone. Also, surveillance testimony by FBI agents implicated Rabito in a scheme to deal in methaqualone.
Rabito challenges the sufficiency of this evidence primarily on the ground that it failed to establish that the pills Rabito was dealing in contained a controlled substance, the "look alike" theory. Specifically, Rabito claims that because the Government did not introduce any physical evidence to show that the pills contained methaqualone, a reasonable juror could not find Rabito guilty beyond a reasonable doubt. From the evidence taken as a whole, however, United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972), the jury was entitled to infer that Rabito was dealing in a controlled substance even though the evidence was circumstantial. United States v. Barnes, 604 F.2d 121, 156 (2d Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980).
Rabito also claims that it is "paradoxical" that he was found guilty of both Counts Three and Four, while his co-defendant Nicholas Santora was only convicted on Count Four. There is no inconsistency in these results. The evidence against Rabito and Santora was different. It was not unreasonable for the jury to conclude from the evidence that Santora was not guilty of the substantive offense, but that his activities were those of a co-conspirator.
Preliminarily, it is necessary to dispose of Tomasulo's argument that only substantive offenses can act as predicates to a RICO conviction. This argument is irrelevant in this case becaue Tomasulo was found guilty of violating 18 U.S.C. § 1962(d), which makes it "unlawful for any person to conspire to violate any of the" substantive provisions of the statute. Indeed, our Court of Appeals has held that a conspiracy can properly be charged as a predicate act of racketeering under section 1962(c), one of the substantive sections of the statute. United States v. Weisman, 624 F.2d 1118, 1123-24 (2d Cir.), cert. denied, 449 U.S. 871, 66 L. Ed. 2d 91, 101 S. Ct. 209 (1980).
Tomasulo challenges the sufficiency of the Government's evidence on two grounds: first, that the Government failed to prove the existence of a single "enterprise," and second, that the evidence was insufficient to establish Tomasulo's participation in the racketeering conspiracy. Applying the standard outlined above, the Government's evidence in this case was sufficient to ...