Appeals from judgments of the District Court for the Southern District of New York, Milton Pollack, Judge, convicting defendants, members of a Croatian nationalist terrorist organization, after a jury trial, on six counts of a seven count indictment, and imposing sentences ranging from 20 to 35 years. Affirmed except that the convictions on count 1 (RICO) are reversed and the count is dismissed, and that the sentences on counts 5 and 6 are vacated and the cause is remanded to permit resentencing.
Feinberg, Chief Judge, and Friendly and Oakes, Circuit Judges.
These appeals from judgments of conviction in the District Court for the Southern District of New York, after a trial before Judge Pollack and a jury, concern the terrorist activities of four Croatian nationalists from mid-November to mid-December, 1980. During this one-month period, a Joint Terrorism Task Force, made up of Special Agents of the Federal Bureau of Investigation (FBI), detectives of the New York City Police Department Arson and Explosives Section, as well as other FBI personnel, including a number of agents and translators able to understand Serbo-Croatian, conducted a large scale investigation, including the operation of four interception devices, the execution of eight search warrants, and around-the-clock physical surveillance of the four appellants and their coconspirators. This investigation culminated in the apprehension of these four appellants without the loss of life or limb or the destruction of property which the evidence demonstrated they intended. After thorough consideration of appellants' many contentions, we affirm all the convictions except those on Count One under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1962(d). As to these we hold that appellants' acts and plans, however misguided, are not within RICO.
The evidence at trial showed the following:*fn1 Defendants, Cale, Ivic, Sovulj, and Ivkosic, were active partisans of Croatian independence, committed to the separation of Croatia from Yugoslavia.*fn2 Defendant Cale owned a house at 31 North Eckar St., Irvington, New York. He lived on the bottom floor of the house and rented the top floor to defendant Ivkosic. Defendant Ivic, who had preceded Ivkosic as Cale's tenant, resided at 381 Broadway, Dobbs Ferry, New York. Ivkosic was the owner of a white Chevrolet van, registered to him at the North Eckar St. address.
In the early morning hours of November 18, 1980, surveillance agents of the FBI observed Ivkosic drop off his white van at Ivic's residence. Ivic then drove the van to Astoria, in the borough of Queens, where he picked up defendant Sovulj. Together Ivic and Sovulj drove to the intersection of 43rd St. and Broadway in the same borough, arriving there at 8:20 a.m. They parked on 43rd St., just north of Broadway, and replaced the left rear glass window of the van with a cardboard screen, leaving a two-inch opening at the top. Except for a five-minute interval during which the van circled the block, Ivic and Sovulj remained inside the parked but idling van until 8:54 a.m., peering through the aperture southwards down 43rd Street. The significance of the location was that one Joseph Badurina lived with his wife and children at 32-18 43rd St., just south of Broadway. Badurina was a prominent Croatian journalist and politician, the Secretary General of the Croatian National Congress, an umbrella organization for various Croatian groups, and editor of the Congress' publication, The Messenger. Badurina was a strong advocate of Croatian independence but a steadfast and vocal opponent of violence. He had previously published in The Messenger an open letter to the Croatian community from then U.S. Attorney Robert Fiske, Jr., along with an editorial endorsing it. These views had not endeared him to those in the Croatian independence movement who favored less gentle methods: Indeed, on at least one occasion his life had been threatened in a leaflet distributed by a member of OTPOR, a Croatian separatist organization of which defendants were members.
Badurina routinely walked his young daughter to school in the morning along 43rd Street, directly passing the spot where Ivic and Sovulj sat in the idling van on the morning of November 18. His regular practice was to leave his home between 8:25 and 8:30 a.m., drop off his daughter, and return alone by 9:15 a.m. Alerted by the FBI, Badurina took a different route on November 18 and thereafter did not venture outside his home for the next four weeks.
On the mornings of November 24 and 25 and December 10, Ivic and Sovulj or, on the latter date, Ivic alone, repeated essentially the same maneuver. After the November 24 visit FBI agents followed Ivic back to Dobbs Ferry. When he exited the van, he was seen carrying a slender object, two and one half to three feet long, wrapped in some sort of white covering. Ivic cradled the object in his arm as one would a rifle.
A subsequent search of Ivkosic's van, pursuant to warrant, yielded the cardboard screen cut to fit the rear view window. The cardboard box from which the screen had been cut was found in Cale's basement, as was a loaded Dutch 30.06 semi-automatic rifle mounted with a high-powered Mayflower scope. The rifle was inside a camouflage bag, which was in turn secreted beneath white painter's drop-cloths.
This and other evidence of a conspiracy to kill or otherwise injure Badurina, including statements by Sovulj to FBI agents denying ever being with Ivic in a white van anywhere in Queens, furnished the basis for Count 7 of the indictment, charging a conspiracy to violate Badurina's civil rights in violation of 18 U.S.C. § 241, and also furnished a possible predicate act for the RICO count (Count 1), charging a conspiracy under 18 U.S.C. § 1962(d) to violate 18 U.S.C. § 1962(c).
On November 28, 1980, Ivic and Cale talked about possible bombings. After discussing bomb construction techniques and the availability of dynamite, they identified prospective bombsites, describing one as "at the end of this avenue" and another as a "studio". It was agreed that Ivkosic would "show the way". Next day, immediately after Cale ordered him to obtain dynamite and "smash it however you want", Ivic drove Ivkosic's car to Bridgeport, Connecticut. There he made two stops, the first at the J & I Machine Shop and the second on Colony Street, near the residence of one Ante Caron, a J & I employee. On his return to his residence in Dobbs Ferry, Ivic removed a telephone company shopping bag from the car and carried it inside. Some forty-five minutes later he carried the same bag outside, placed it in Ivkosic's car, and drove to New York City where he joined Ivkosic in a Croatian demonstration outside the Yugoslav Consulate on Madison Avenue. With Ivkosic driving, the two men proceeded to the south end of Fifth Avenue. After circling Washington Square twice and then Union Square once in very heavy traffic, Ivkosic stopped the car in a cross-walk at the intersection of 16th St. and Union Square West. Ivic left the car briefly to inspect the premises at 19 Union Square West where the George Tomov Yugoslav Folk Dance Ensemble maintained a studio. Tomov had rented the studio for that evening to groups giving a party to celebrate Yugoslavia's Independence Day. The party had been widely advertised in the Yugoslav community and was expected to draw prominent Yugoslav officials, including the Yugoslav Ambassador to the UN and members of the Yugoslav Consulate. A search of Ivic's residence on December 12, 1980, pursuant to warrant, turned up the telephone company shopping bag which had been in the car when Ivic and Ivkosic stopped outside the dance studio on the afternoon of November 29. Inside the bag were assorted bomb paraphernalia and a lady's purse*fn3 containing a fully operational time-bomb, consisting of 3 cartridges of 80% gelatin dynamite connected to an electric blasting cap and a clock. The time-bomb was set to explode five hours after circuitry contact was made. Thus, had the bomb been placed at the dance studio during the afternoon of November 29, it would have exploded in the middle of that evening's Independence Day festivities. Ivic did not in fact place the bomb because, as he explained later to Cale, "There was no place to park. And at the last moment you have to put that thing together, you understand?". A search of the Caron residence on Colony Street in Bridgeport on December 18, 1980, again pursuant to warrant, yielded eleven cartridges of 80% gelatin dynamite and electric blasting caps identical to the three cartridges and blasting cap in the time-bomb found in the telephone company bag in Ivic's apartment. This and other evidence furnished the basis for Count 2, charging a conspiracy to transport and utilize explosives in violation of 18 U.S.C. §§ 371 and 844, for Count 3, a substantive count for unlawful interstate transportation and receipt of explosives in violation of 18 U.S.C. §§ 844(d) and 2, and for Counts 4 and 5, charging attempts by means of explosives to damage and destroy, respectively, the vicinity of Washington Square Park*fn4 and a building on Union Square West, in violation of 18 U.S.C. §§ 844(i) and 2, as well as providing two possible predicates for the RICO conspiracy count.
The next bombing site selected was the Rudenjak Overseas Travel Service, a travel agency which specialized in booking trips to Yugoslavia. On the morning of December 4, Ivic surveilled the agency's office, located at 550 East 187th St. in the Bronx. Next afternoon he reported to Cale that the only effective way to destroy the agency was to leave the bomb in a garbage can outside the front display window. Cale concurred and authorized the operation, telling Ivic "I would do it . . . . There is no risk here." However, a few hours later that same day, Cale, Ivic, and Ivkosic discovered loose wires in Cale's basement. Fearing that they had been subject to electronic surveillance, they abandoned the plan. This and other evidence furnished the basis for Count 6, charging an attempt to damage and destroy, by means of explosives, a travel agency located in the Bronx, in violation of 18 U.S.C. §§ 844(i) and 2, and also provided another possible predicate for the RICO conspiracy count.
We need only add that the searches on December 12, 1980, of Cale's residence, Ivkosic's van, and Ivic's apartment yielded, in addition to the loaded Dutch 30.06 military rifle, the cardboard box and screen cut therefrom, and the telephone company bag which we have already mentioned, a supply of 30.06 and.38 calibre ammunition, a loaded revolver, and two copies of a pamphlet entitled "Headquarters of the Croatian Revolutionary Forces". The search of the Caron residence in Bridgeport on December 18, 1980, produced a haul which the Government characterizes as "an arsenal of weapons and ammunition"--including, in addition to the previously mentioned dynamite and blasting caps, a second Dutch military rifle virtually identical to that found in Cale's basement, a silencer, and several hundred rounds of ammunition. Also found were a copy of the same "Headquarters of the Croatian Revolutionary Forces" pamphlet and a manual detailing procedures for constructing terrorist weapons, including timebombs.
The Indictment, the Verdict and the Sentences
The indictment, the verdicts and the sentences so far as concerns the four appellants are set out in the following table:
Count Charge Defendant Verdict Sentence
1 Conspiracy to violate 18 Cale Guilty 15
U.S.C. § 1962(c): 18 Ivic Guilty 15
U.S.C. § 1962(d) Ivkosic Guilty 15
2 Explosives conspiracy: Cale Guilty 5
18 U.S.C. §§ 371 and Ivic Guilty 5
3 Transport ation and Cale Guilty 5
Breceipt of explosives: 18 Ivic Guilty 5
U.S.C. §§ 844(d) & 2 Ivkosic ...