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United States v. Biasucci

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


March 17, 1986

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH BIASUCCI, JESSE DAVID HYMAN, A/K/A "DOC," STANLEY GRAMOVOT, ALAN ALBENGA, MELVIN COOPER, ANTHONY CHARLES CAPO, JR., OSCAR LOUIS ALBENGA, A/K/A "AL" AND CHAIM GERLITZ, DEFENDANTS-APPELLANTS

Appeal from judgments of the United States District Court for the Southern District of New York entered after a jury trial before Judge Leonard B. Sand, in which appellants were convicted of various RICO Act violations, 18 U.S.C. §§ 1961-1968, and of extortionate credit transactions, 18 U.S.C. §§ 891-896. Claims of unlawful video surveillance, improper mens rea instructions, double jeopardy and prosecutorial misconduct are rejected and the convictions are affirmed.

Author: Miner

Before: TIMBERS, PIERCE and MINER, Circuit Judges.

MINER, Circuit Judge :

Eight defendants appeal from judgments of conviction entered following a jury trial in the United States District Court for the Southern District of New York (Sand, J.) stemming from their involvement in a loansharking operation. Their principal contentions on this appeal are that certain videotapes recorded by a camera surreptitiously installed in a private business office should have been suppressed, that misconduct on the part of the prosecutor deprived them of a fair trial, that the trial court erroneously charged the jury on the state of mind the government must prove to establish the "collection of an unlawful debt," and that imposition of consecutive sentences for convictions under two statutes violated the double jeopardy clause of the Fifth Amendment. Finding that none of these or any of appellants' other arguments warrant reversal, we affirm the convictions in all respects.

I. BACKGROUND

Appellants Joseph Biasucci, Jesse David Hyman, Melvin Cooper, Oscar Louis Albenga, Alan Albenga, Stanley Gramovot, Anthony Capo, Chaim Gerlitz, and seven others were indicted for a variety of Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (1982) ("RICO"), and extortion, 18 U.S.C. §§ 891-896 (1982), offenses.*fn1

The charges against appellants stemmed from ten loans totaling approximately two-million dollars made by Resource Capital Group ("Resource Capital") in 1981 and 1982. Hyman and Cooper, who directed Resource Capital, were the central figures in these transactions. They conducted the scheme by drawing in customers with credit problems through promises of legitimate financing. They then would tell their customers that those funds were unavailable, but that the customers could get "emergency funds" at interest rates of one and one-half to five percent per week. As part of the effort to conceal the true nature of these transactions, the customers were obliged to sign documents falsifying the actual interest rates. Customers also were required to provide mortgages on their property, or shares in their businesses, as security for the loans. Interest payments were due weekly, and when the borrowers had difficulty meeting the payments, they were threatened with loss of their property, loss of control of their businesses, or physical injury.

The other appellants were involved with the loansharking operation in various ways. Biasucci and Gerlitz made funds available to Hyman and Cooper to operate the loansharking business and shared in the illicit profits collected from the business's customers. Gramovot brought one of the enterprise's victims to Resource Capital and later shared in the effort to take control of her business. Oscar Albenga was the chief collector of money from victims and Alan Albenga worked under this direction. Capo physically assaulted one of the enterprise's victims and, together with several other defendants, attempted to force that victim to sign over his interest in his business to the defendants.

At trial, the government established the existence of this racketeering enterprise and its loansharking activities principally through the testimony of victims of the loansharks, over 100 tape-recorded conversations from the Resource Capital offices and other locations, several videotapes recorded by a camera that had been surreptitiously installed in the Resource Capital offices, and various records and documents seized from the Resource Capital offices. After a thirteen-week trial and five days of deliberation, the jury returned guilty verdicts against the eight appealing defendants on various counts of the indictment and acquitted seven other defendants on all counts.*fn2

This appeal presents essentially four issues. First, appellants argue that the visual electronic surveillance of the Resource Capital offices, conducted pursuant to a court order, was improper because no statutory authority provided for such surveillance, and that even if authority did exist, the government failed to demonstrate a valid basis for such surveillance. Second, they contend that the RICO statute, 18 U.S.C. §§ 1962(b) and (c), required that the government establish that each defendant had specific knowledge of the actual rate of interest charged on a usurious loan and that Judge Sand's failure to so instruct the jury was error. Third, appellants argue that they were deprived of a fair trial by certain acts of prosecutorial misconduct. Finally, Hyman and Cooper claim that the same conduct formed the basis for their convictions under both section 1962(b) and section 1962(c) and that consecutive sentences on these convictions, therefore, violated the double jeopardy clause of the Fifth Amendment. Finding these arguments, as well as all others presented by appellants, to be without merit, we affirm the convictions.

II. DISCUSSION

A. Visual Electronic Surveillance

On November 30, 1982, District Judge Thomas C. Platt issued an order pursuant to Fed. R. Crim. P. 41 and 57(b) authorizing Federal Bureau of Investigation ("FBI") agents to enter the Resource Capital offices and install a hidden video camera, which would record the movements of all persons who entered the premises over a thirty-day period.*fn3 Prior to trial, the defendants unsuccessfully moved to suppress the fruits of this surveillance, and the government thereafter offered into evidence ten of the videotapes. Appellants Hyman, Cooper, and Gerlitz argue that this surveillance was improper because no statutory authority provided for video surveillance in domestic criminal investigations, and even if authority did exist, the government failed to demonstrate a valid basis for such surveillance.

Appellants correctly note that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1982), which authorizes federal judges to issue warrants (orders) for domestic wiretapping and electronic eavesdropping, does not authorize federal courts to permit visual electronic surveillance of private premises. United States v. Torres, 751 F.2d 875, 880 (7th Cir. 1984), cert. denied, 470 U.S. 1087, 105 S. Ct. 1853, 85 L. Ed. 2d 150 (1985); United States v. Ianniello, 621 F. Supp. 1455, 1467 (S.D.N.Y. 1985); In re Order Authorizing Interception of Oral Communications and Videotape Surveillance, 513 F. Supp. 421, 422-23 (D. Mass. 1980); People v. Teicher, 52 N.Y.2d 638, 652-53, 439 N.Y.S.2d 846, 853, 422 N.E.2d 506, 513 (1981); Sponick v. City of Detroit Police Department, 49 Mich. App. 162, 198, 211 N.W.2d 674, 690 (Mich. Ct. App. 1973). The statute sanctions only the "interception of wire or oral communications." 18 U.S.C. §§ 2516(1), 2518(1) (1982); cf. United States v. New York Telephone Co., 434 U.S. 159, 166, 54 L. Ed. 2d 376, 98 S. Ct. 364 (1977) (pen registers are not governed by Title III because they are not concerned with "the aural acquisition of the contents of any wire or oral communication " (emphasis in original)).

Nor does the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811 (1982) ("FISA"), which is broad enough to embrace visual electronic surveillance, id. § 1801(f), authorize such surveillance in domestic criminal investigations. The FISA allows the government to use electronic surveillance only for the purpose of obtaining "foreign intelligence information." Id. § 1804(a)(7)(B); see United States v. Duggan, 743 F.2d 59, 77-78 (2d Cir. 1984) (FISA warrant properly limited to foreign intelligence purposes); S. Rep. No. 604, 95th Cong., 2d Sess. 5, 7-10 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 3904, 3906, 3908-11.

On the other hand, nothing in Title III or the FISA indicates that Congress intended to prohibit video surveillance in domestic criminal investigations.*fn4 Thus, all that can be said is that Congress has not yet enacted any legislation explicitly authorizing domestic electronic video surveillance. Prior to the 1968 enactment of Title III, there similarly was no specific statutory authorization for wiretapping or electronic eavesdropping. Nevertheless, the Supreme Court had approved the court-ordered use of a concealed electronic device to record conversations, holding that the government had satisfied Fourth Amendment requirements. Osborn v. United States, 385 U.S. 323, 328-31, 17 L. Ed. 2d 394, 87 S. Ct. 429 (1966); cf. Katz v. United States, 389 U.S. 347, 354-59, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (wiretapping of telephone booth held unconstitutional because FBI agents did not obtain prior judicial approval); Berger v. New York, 388 U.S. 41, 58-59, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967) (New York wiretapping statute held unconstitutional because it did not adequately incorporate constitutional standards); Silverman v. United States, 365 U.S. 505, 513, 5 L. Ed. 2d 734, 81 S. Ct. 679 (1961) (Douglas, J., concurring) (noting that because agents had failed to secure a search warrant as "required by the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure," the electronic surveillance was illegal).

In more recent times, the Supreme Court has held that Fed. R. Crim. P. 41*fn5 authorizes the issuance of a warrant permitting the use of a pen register. New York Telephone, 434 U.S. at 168-70 (citing Katz and Osborn). The Court further has noted that Fed. R. Crim. P. 57(b)*fn6 reinforces its "conclusion that Rule 41 is sufficient broad to include seizures of intangible items . . . ." 434 U.S. at 170.*fn7

Relying primarily on New York Telephone, the Seventh Circuit has held that a district court, pursuant to Rule 41, may issue an order authorizing television surveillance of the interior of an apartment allegedly being used by a terrorist organization as a "safe house" to assemble bombs. Torres, 751 F.2d at 883; accord Ianniello, 621 F. Supp. at 1467. Finding the reasoning in Torres to be compelling, we join the Seventh Circuit and hold that district courts, federal magistrates, and state judges may authorize television surveillance of private premises in appropriate circumstances. The only questions remaining then are: (1) In what circumstances and by what standards should visual electronic surveillance be permitted?; and (2) Does this case present such circumstances? The answers to these questions involve the traditional balancing of the interests of personal privacy and the interests of law enforcement, which is the function of fourth amendment jurisprudence.

In Berger and Katz, both of which antedated the passage of Title III, the Supreme Court set forth the minimum constitutional standards governing the use of aural electronic surveillance. First, a warrant authorizing such surveillance may issue only upon probable cause, supported by oath or affirmation, that a particular person is committing, has committed, or is about to commit a crime. Second, the Constitution requires particularization in the warrant, i.e., the warrant must describe the place to be searched; the person or thing to be seized; the crime that has been, is being, or is about to be committed; and the information sought. Third, concern with indiscriminate nature of electronic surveillance led the Berger Court to require that a warrant authorizing electronic surveillance be sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation. Finally, before a court may issue a warrant authorizing electronic surveillance, it must certify that there is no less intrusive means for obtaining the needed evidence. Given the obvious similarities between aural and video electronic surveillance, we believe that the same constitutional standards governing the former should be applied in determining whether or not to authorize the latter.

In addition, when Congress passed Title III, it obviously considered the competing policies of protecting personal privacy and ensuring effective law enforcement, and there is abundant evidence that it specifically intended to adopt the constitutional guidelines announced in Berger and Katz. S. Rep. No. 1097, 90th Cong. & Ad. News 2112, 2153-63. Thus, we deem it wise, if not necessary, to look to the more precise standards Congress adopted in Title III for audio surveillance in promulgating guidelines for court-ordered authorization of video surveillance. See Order Authorizing Interception, 513 F. Supp. at 422-23.

In similar fashion, the Torres court borrowed four provisions of Title III implementing the Fourth Amendment's requirements of particularly and minimization as a "measure of the government's constitutional obligation of particular description in using television surveillance to investigate crime." 751 F.2d at 885. These four provisions are: (1) the judge issuing the warrant must find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous," 18 U.S.C. § 2518(3)(c); (2) the warrant must contain "a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates," id. § 2518(4)(c); (3) the warrant must not allow the period of interception to be "longer than is necessary to achieve the objective of the authorization, [] or in any event longer than thirty days" (through extensions are possible), id. § 2518(5); and (4) the warrant must require that the interception "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under [Title III]," id.

We likewise believe that these standards, borrowed from Title III, together with the more general constitutional requirements, form a sufficient outline of the showing the government must make before a warrant should issue authorizing video surveillance. Applications for video surveillance should not be strictly judged by all of the other procedures and requisites of Title III, however, because, like the Seventh Circuit, we borrow the statutory standards quoted above as a measure of the government's constitutional obligation.

A review of the government's application for the November 30, 1982 warrant demonstrates that all of the constitutional requirements set out above were met. The application contained the following: (1) written authorization from the Department of Justice; (2) a particular description of the location, people, and offenses to be surveilled; (3) a statement regarding the necessity for such surveillance; (4) minimization procedures so that only authorized activity would be surveilled; and (5) provision for periodic reports on the progress of the surveillance. In addition, the affidavits submitted by an Assistant United States Attorney and an FBI Special Agent sufficiently detailed the basis for probable cause to believe that criminal activities were being conducted in the Resource Capital offices and explaining why other means of investigation were inadequate. Finally, the warrant was issued for only thirty days (although later extended for an additional thirty days) and contained all the requisite findings and protections.

Appellants, citing our decision in United States v. Lilla, 699 F.2d 99 (2d Cir. 1983), contend that the government failed in this case to demonstrate that video surveillance was necessary.*fn8 In Lilla, we held that the government had failed to establish that other investigative procedures were either unlikely to succeed or too dangerous to use. The Title III affidavit in Lilla did not reveal what, if any, investigative techniques were attempted prior to the wiretap request. Instead, it merely asserted that "no other investigative method exists to determine the identity" of individuals who might have been involved in the narcotics transaction. Accordingly, we concluded that the government had failed to meet the requirements of Title III.

Here, in contrast, the affidavit of FBI Special Agent Nye, which was submitted in support of the request for video surveillance, specified that: (1) some confidential sources who had reported on the activities of the subjects of the investigation had refused to testify; (2) the undercover agent had not been permitted to be present during the passing of money and checks between one of victims and Hyman; (3) the agent had not been allowed to be present at all meetings at Resource Capital; (4) interviews with victims at the time were not feasible because of the risk that such interviews would alert the individuals associated with Resource Capital to the investigation; (5) search warrants and further investigative grand juries would be considered in the future but were not expected to produce significant evidence at the time; and (6) prior victims would be unlikely to testify for fear of reprisals by individuals associated with Resource Capital, and interviews with those prior victims would alert individuals associated with Resource Capital to the investigation.

We previously have stated that a reviewing court must consider affidavits submitted in support of wiretap applications in a "'common sense and realistic fashion'" and with "the deference properly accorded to the issuing judge." United States v. Ruggiero, 726 F.2d 913, 924 (2d Cir.) (quoting United States v. Ivic, 700 F.2d 51, 57 (2d Cir. 1983), and citing United States v. Perry, 643 F.2d 38, 50 (2d Cir.), cert. denied, 454 U.S. 835, 70 L. Ed. 2d 115, 102 S. Ct. 138 (1981)), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984). The undeniable reality here is that threats, fear, and violence were the mainstays of Resource Capital's daily operating procedures. Like much of organized crime, it operated behind an enforced wall of secrecy. Recognizing the nature of such organizations, Congress and the courts both have accepted that extraordinary investigative techniques are needed to successfully wage the battle against organized crime. See, e.g., S. Rep. No. 1097, 90th Cong. 2d Sess. , reprinted in, 1968 U.S. Code Cong. & Ad. News 2112, 2157 ("major purpose of title III is to combat organized crime"). Here, Agent Nye's affidavit enumerated adequate facts to support his conclusion that video surveillance was necessary. On this record, we conclude that Judge Platt's warrant authorizing video surveillance of the Resource Capital offices met all the constitutional standards set out above.

B. Mens Rea Element of RICO

In his instructions to the jury, Judge Sand explained that the defendants could be found guilty of participating in, or aiding or abetting, the collection of an unlawful debt only if the jury found that they had acted "knowingly, wilfully and unlawfully." Judge Sand further explained that the government could meet this burden either by proving specific knowledge of the interest rates on the usurious loans, or by showing the defendants' awareness "of the generally unlawful nature of the particular loan in question and also that it was the practice of the lenders to make such loans."

Biasucci, Gerlitz, and Capo, who were convicted for aiding and abetting the collection of an unlawful debt, contend that these instructions were erroneous. In particular, they claim that the government was required to establish that they had knowledge of the specific rates of interest being charged on the usurious loans. We do not agree that RICO requires proof of such specific knowledge, and we therefore find no error in Judge Sand's instructions.

We previously have observed that RICO imposes no additional mens rea requirement beyond that found in the predicate crimes. United States v. Scotto, 641 F.2d 47, 55 (2d Cir. 1980), cert. denied, 452 U.S. 961, 101 S. Ct. 3109, 69 L. Ed. 2d 971 (1981); United States v. Boylan, 620 F.2d 359, 361-62 (2d Cir.), cert. denied, 449 U.S. 833, 101 S. Ct. 103, 66 L. Ed. 2d 38 (1980). Consequently, we look to the scienter elements found in the statutory definitions of the predicate crimes to determine the degree of knowledge that must be proved to establish a RICO violation.

Section 1961(6) defines an "unlawful debt" as "a debt (A) . . . which is unenforceable under State or Federal law in whole or in part as to principal or interest because of the laws relating to usury, and (B) which was incurred in connection with the business of . . . lending money or a thing of value at a rate usurious under State or Federal law, where the usurious rate is at least twice the enforceable rate." No federal usury law applies in this case; instead, since the usurious loans charged in the indictment took place in New York, we look to New York usury law . . . when, not being authorized or permitted by law to do so, he knowingly charges, takes or receives any money or other property as interest on the loan . . . at a rate exceeding twenty-five per centum per annum or the equivalent rate for a longer or shorter period." N.Y. Penal Law § 190.40 (McKinney Supp. 1986). Section 190.40 does not require a specific intent to violate the usury laws. Hammond v. Marrano, 88 A.D.2d 758, 759, 451 N.Y.S.2d 484, 485 (4th Dep't 1982).

Likewise, the policies underlying RICO and the New York usury laws impel us not to require knowledge of the specific interest rates charged on usurious loans. RICO was enacted to "seek the eradication of organized crime in the United States by strengthening the legal tools . . . to deal with the unlawful activities of those engaged in crime." Statement of Findings, Organized Crime Control Act of 1970, 84 Stat. 923. The elimination of loansharking was one of Congress' principal aims in enacting the statute. S. Rep. No. 617, 90th Cong., 2d Sess. 78-80; H. R. Rep. No. 1574, 90th Cong., 2d Sess. 5. Given those goals, Congress could not have intended to hobble the government's ability to combat loansharking by requiring it to prove knowledge of the specific interest rates charged. As we previously have recognized, Congress expressly commanded that the RICO statute "be liberally construed to effectuate its remedial purposes." Ruggiero, 726 F.2d at 919 (quoting Pub. L. No. 91-452, § 904(a), 84 Stat. 947 (codified at 18 U.S.C. § 1961, note)). Similarly, the New York State Legislature, in adopting section 190.40, sought "to tighten the laws against 'loansharking' and to provide law enforcement with an effective weapon against 'organized or systematic loansharking.'" People v. Ayers, 109 Misc. 2d 870, 872, 440 N.Y.S.2d 1019, 1021 (Nassau County Ct. 1981) (quoting Governor's Memorandum, McKinney's 1965 Session Laws of New York, p. 2101).

In sum, nothing in the language of section 1961(6), which defines the elements of unlawful debt collection, the applicable New York usury laws, or the policies underlying RICO suggests the government must prove that a defendant had knowledge of the specific rates being charged on usurious loans. By its terms, all that RICO requires is proof that a debt existed, that it was unenforceable under New York's usury laws, that it was incurred in connection with the business of lending money at more than twice the legal rate, that the defendant aided collection of the debt in some manner, and that the defendant acted knowingly, willfully and unlawfully.

As a general rule, aiders and abettors are punishable as principals. 18 U.S.C. § 2(a)(1982). We recently held that specific knowledge of fact need not be proven to convict an aider or abettor, absent such direction in the statute itself. United States v. Falu, 776 F.2d 46, 49 (2d Cir. 1985); see, e.g., United States v. Yermian, 468 U.S. 63, 104 S. Ct. 2936, 2943, 82 L. Ed. 2d 53 (1984) (knowledge of federal agency jurisdiction not required by 18 U.S.C. § 1001); United States v. Feola, 420 U.S. 671, 684, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975) (knowledge that victim is a federal officer not required by 18 U.S.C. § 111); United States v. Ardito, 782 F.2d 358, slip op. at 1358 (2d Cir. 1986) (knowledge that obstructed proceeding is federal in nature not required by 18 U.S.C. § 1503); United States v. Roglieri, 700 F.2d 883, 885 (2d Cir. 1983) (knowledge that item has been stolen from mail not required by 18 U.S.C. § 1708). Appellants have not pointed to any evidence in RICO or its legislative history indicating that specific knowledge of the interest rates charged is required. Accordingly, we see no reason to require proof of such knowledge.

C. Prosecutorial Misconduct

Appellants contend that certain prosecutorial misconduct deprived them of a fair trial. In particular, they argue that the use of the metaphor "iceberg" to describe the criminal enterprise intimated that the evidence adduced at trial was only the "tip" of the "iceberg" of other unproven criminal activity. Appellants also argue that the cumulative effect of various other remarks made by the prosecutor during the course of the trial was unduly prejudicial. Both contentions are without merit.

The use of the term "iceberg" was not improper. The government is not barred from using rhetorical devices during the trial. United States v. Bagaric, 706 F.2d 42, 60 (2d Cir.), cert. denied, 464 U.S. 840, 104 S. Ct. 134, 78 L. Ed. 2d 128 (1983). Here, the "iceberg" metaphor was used for the limited purpose of describing the structure of the loansharking operation: the "tip" of the "iceberg" being the business front, and the submerged segment, concealed from view, representing the rest of the enterprise. The use of the metaphor was not, as appellants contend, a reference to evidence of other crimes not adduced at trial. This use of the "iceberg" metaphor was entirely proper. Cf. Hutchins v. Wainwright, 715 F.2d 512, 515-16 (11th Cir. 1983) (government may not use iceberg metaphor to argue to the jury that the crimes proved at trial are only one part of defendant's illegal activities), cert. denied, 465 U.S. 1071, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (1984); Stimack v. Texas, 548 F.2d 588, 588-89 (5th Cir. 1977) (per curiam) (same); United States v. Grossman, 400 F.2d 951, 955-56 (4th Cir.) (same), cert. denied, 393 U.S. 982, 89 S. Ct. 453, 21 L. Ed. 2d 443 (1968).

The other remarks of the prosecutor objected to by appellants stand on different footing, because they clearly were inappropriate. First, in his rebuttal statement, the prosecutor improperly suggested to the jury that the government could have prolonged the trial for three months. Second, the prosecutor repeatedly engaged in needless and unwarranted ad hominem attacks against defense counsel.*fn9

The fundamental question in such circumstances is whether the prosecutor's misconduct caused substantial prejudice to the defendants, thereby depriving them of their rights to a fair trial. United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1284, 102 S. Ct. 2269 (1982); United States v. Praetorius, 622 F.2d 1054, 1060 (2d Cir. 1979), cert. denied, 449 U.S. 860, 101 S. Ct. 162, 66 L. Ed. 2d 76 (1980). At the same time, criminal convictions are not to be lightly overturned on the basis of a prosecutor's inappropriate comments standing alone in an otherwise fair proceeding. United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1 (1985) (context in which remarks were made must be examined to determine the probable effect on the jury's ability to judge the evidence fairly); United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985). Accordingly, we have adopted a contextual approach that considers the following factors: "The severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." Modica, 663 F.2d at 1181.

Applying these factors, we find that the prosecutor's comment about being able to prolong the trial for three months, although improper, does not mandate the extraordinary remedy of reversal. Significantly, Judge Sand had it stricken from the record and gave an immediate curative instruction.*fn10 In any event, as set out more fully

Finally, absent the prosecutor's improper remarks, the eight appellants certainly would have been convicted. There was ample evidence of their wrongdoing, including the testimony of several victims of the loansharks and the tape recording of conversations at the Resource Capital offices. Seven of the fifteen defendants were admitted of all charges and the eight appellants were convicted of only some of the charges against them. See supra notes 1-2. This demonstrates the meticulous care the jury exercised in weighing the evidence and reaching its verdict and therefore reinforces our conclusion that the prosecutor's remarks did not no undermine the jury's ability to view the evidence fairly and free from passion and prejudice.*fn12

In sum, although the prosecutor's statements clearly were improper in several instances, they did not result in substantial prejudice to the appellants so as to deprive them of a fair trial.

D. Double Jeopardy

Hyman and Cooper each were convicted on Count One of the Indictment for violation of 18 U.S.C. § 1962(c) and on Counts Two through Five for violation of 18 U.S.C. § 1962(b). Each was sentenced to twenty years' imprisonment on Count One and to a total of ten years' imprisonment on Counts Two through Five, consecutive to the sentence imposed on Count One. Hyman and Cooper argue that, because these convictions arise from the same acts or transactions, the cumulative punishment imposed by the district court violates the double jeopardy clause. We disagree.

It has long been settled that "a single transaction may give rise to liability for distinct offenses under separate statutes without violating the Double Jeopardy Clause." United States v. Barton, 647 F.2d 224, 235 (2d Cir.), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 152, 102 S. Ct. 307 (1981). As the Supreme Court has directed: The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932):

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not . . . ."

Brown v. Ohio, 432 U.S. 161, 166, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977); United States v. Langella, 776 F.2d 1078, 1081-82 (2d Cir. 1985).

In applying the Blockburger test, we are required to focus on the statutory elements of each offense. Langella, 776 F.2d at 1082 (citing Albernaz v. United States, 450 U.S. 333, 338, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981)). If each statute requires proof of a fact that the other does not, the Blockburger test is satisfied, even if the same proof is used at trial to establish both crimes. Id.

In the instant case, sections 1962(c) and 1962(b) are sufficiently distinguishable to permit the imposition of cumulative punishment. Section 1962(c) requires the government to prove that a defendant "conduct[ed] or participate[d], directly or indirectly, in the conduct of [an] enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Significantly, section 1962(c) does not require proof that a defendant acquired or maintained any interest in a victim's business. By contrast, section 1962(b) requires the government to demonstrate that a defendant "through a pattern of racketeering activity or through collection of an unlawful debt . . . . acquire[d] or maintain[ed], directly or indirectly, any interest in or control of any enterprise." The distinction is clear-section 1962(b) proscribes the acquisition or maintenance of a victim's enterprise, while 1962(c) prohibits the conduct of the criminal enterprise.*fn13

The statutory offenses involved here each require proof of an element that the other does not, and, therefore support the imposition of consecutive sentences for these violations. Cf. Bagaric, 706 F.2d at 63-64 n. 18 ("the plain language and different elements of § 1962(c) and § 1962(d) . . . ., combined with the absence of evidence of a contrary legislative intention, support the imposition of consecutive sentences for violations of both subsections").

III. CONCLUSION

We have considered all of appellants' arguments and find that none of them requires reversal. Accordingly, the judgments of conviction are affirmed.


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