En banc rehearing on appeal from judgment of conviction entered in the United States District Court for the Southern District of New York, Richard Owen, Judge, convicting defendant of participating and conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, 18 U.S.C. §§ 1962(c) and (d). Held: proof that defendant participated in commission of three nearly simultaneous murders at behest of organized crime group sufficed to establish RICO "pattern."
Oakes, Chief Judge,*fn* Feinberg,*fn* Meskill, Newman, Kearse, Cardamone, Pierce, Winter, Pratt, Miner, Altimari, and Mahoney, Circuit Judges. Oakes, Circuit Judge (concurring). Mahoney, Circuit Judge (concurring).
Defendant Anthony Indelicato has appealed from a judgment entered in the United States District Court for the Southern District of New York, after a jury trial before Richard Owen, Judge, convicting him of participating and conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986). He was sentenced to two consecutive 20-year terms of incarceration and a $50,000 fine. His appeal and the appeals of his codefendants were heard by a panel of this Court and remain pending before that panel. We granted this rehearing en banc in order to consider the limited question of whether Indelicato's participation in three murders as part of a single criminal transaction could constitute a "pattern of racketeering activity" within the meaning of RICO, 18 U.S.C. § 1961(5). For the reasons below, we answer that question in the affirmative, and we remand the matter to the panel for further proceedings consistent with this holding.
Indelicato was charged in two counts of a 25-count superseding indictment charging him and seven codefendants with various crimes arising out of operations of an organization known as the "Commission" of La Cosa Nostra, which was alleged to be the ruling body of the La Cosa Nostra organized crime families throughout the United States. The Commission was alleged to be a RICO enterprise, and Indelicato was charged with one count of participating in, and one count of conspiring to participate in, the affairs of the Commission through a pattern of racketeering activity, in violation of 18 U.S.C. §§ 1962(c) and (d), respectively.
To the extent pertinent to the question considered in this en banc rehearing, the evidence at trial, taken in the light most favorable to the government, revealed the following. The Commission had existed for decades as the governing body of the five La Cosa Nostra families in New York City and affiliated families in other cities. Each organized crime family included a "boss" or leader, assisted by an underboss and a counselor; beneath this level were "capos" or captains, who supervised a number of people who had been made "members" or "soldiers" of the family. To be made a member of such a family, one was required to vow obedience to the rules and orders of the Commission and to be personally approved by it for admission. The functions of the Commission included overseeing interfamily ventures and intrafamily leadership disputes. The prior approval of the Commission was required before any family boss could be killed.
The Commission consisted principally of the bosses of the five organized crime families in the New York City area. During most of the 1970's, however, it did not include a representative of one such family, the Bonanno organized crime family ("Bonanno family"), because of leadership disputes within that family. During this period, the Commission itself directly controlled the operations of the Bonanno family.
In 1979, the boss of the Bonanno family was Carmine Galante. Indelicato was a member of the family; his father was a capo; and an uncle, J.B. Indelicato, was a member. As part of an overall plan to end the factional disputes within the Bonanno family and to realign its leadership, the Commission planned and implemented the murder of Galante and two of his close associates.
In planning the murder of Galante, the Commission worked through Aniello Dellacroce, underboss of the Gambino organized crime family, Stefano Canone, the counselor of the Bonanno family, and several soldiers in the Bonanno family including Indelicato, Dominic Trinchera, and Cesare Bonventre. Thus, in May or June 1979, Trinchera introduced Indelicato to one Louis Giongetti, a lifelong felon. Indelicato asked Giongetti whether he had ever "hit," i.e., killed, anyone. Giongetti assured Indelicato that he was experienced and trustworthy. In early July, Indelicato and Trinchera met in a bar with Giongetti; Trinchera sent Giongetti to a "safe house" to retrieve a cache of shotguns and other weapons.
On July 12, 1979, Indelicato and two other men, all wearing ski masks, entered a restaurant in Brooklyn, New York, where Galante, his cousin Guiseppe Turano, and Galante's friend and associate Leonard Coppola were having lunch. Using guns of the type earlier amassed at the bar, Indelicato and his two companions shot and killed Galante, Turano, and Coppola. The victims were shot numerous times at close range with several weapons. The evidence also showed that two other men, including Bonventre, who had accompanied Coppola to lunch and were uninjured in the shootings, had joined in shooting Coppola, Turano, and Galante.
Indelicato and his two companions fled in a car stolen a month earlier. After abandoning that car, Indelicato immediately went with his father, his uncle J.B., and Phillip Giaccone, another Bonanno family capo, to a social club in Manhattan to report his success to Dellacroce and Canone. A surveillance videotape showed Indelicato being congratulated by Canone.
Thereafter, Indelicato remained involved with the Commission. He, Trinchera, and Bonventre were promoted to the rank of capo. Indelicato maintained that rank until at least 1981.
The three murders were the only RICO predicate acts alleged against Indelicato. He was not named in any of the remaining 23 counts of the indictment. The proof at trial relating to the three murders included, in addition to the above, ballistics and medical forensic evidence, eyewitness evidence, and Indelicato's palm print on an inside door handle of the getaway car. Indelicato was convicted on both of the counts against him. His appeal and the appeals of his codefendants were heard before a panel of this Court in September 1987, and those appeals remain pending.
Indelicato's principal argument on appeal is that proof of his commission of, or agreement to commit, three murders as part of a single criminal transaction is insufficient to establish a "pattern of racketeering activity" within the meaning of RICO. In April 1988, we agreed to rehear this issue en banc, in tandem with an en banc rehearing of Beauford v. Helmsley, 843 F.2d 103 (1988). For the reasons below, we conclude that the facts proven by the government are sufficient to establish a RICO pattern.
RICO § 1962(c) makes it unlawful, in pertinent part,
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, in the conduct of such enterprise's affairs through a pattern of racketeering activity.
18 U.S.C. § 1962(c). Section 1962(d) makes it unlawful to conspire to violate §§ 1962(a), (b), or (c). The terms "enterprise," "racketeering activity," and "pattern of racketeering activity" are defined in 18 U.S.C. § 1961, in pertinent part, as follows:
(1) "racketeering activity" means (A) any act or threat involving [ inter alia ] murder, kidnaping, gambling, arson, robbery, bribery, extortion, . . . which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: . . . section 224 (relating to sports bribery), . . . section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), . . . section 1952 (relating to racketeering), . . . sections 2314 and 2315 (relating to interstate transportation of stolen property), . . . (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), (D) any offense involving . . . the felonious manufacture, importation, . . . or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States. . . .
(4) "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity;
(5) "pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity; . . . .
18 U.S.C. §§ 1961(1), (4), and (5).
Our assessment of Indelicato's contention that his commission of three murders as part of a single criminal episode or transaction cannot be considered a RICO "pattern" requires a review of the development of Second Circuit doctrine as to the RICO concept of pattern both before and after the Supreme Court's decision in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985) (" Sedima ").
A. Early Second Circuit Interpretations of "Pattern"
Following the enactment of RICO, few cases in this Court required us to focus closely on the meaning and content of the statutory definition of "pattern of racketeering activity." In those that did, we generally gave "pattern" a generous reading.
In United States v. Parness, 503 F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S. 1105, 42 L. Ed. 2d 801, 95 S. Ct. 775 (1975), we considered a conviction under 18 U.S.C. § 1962(b), which makes it unlawful to, inter alia, acquire an interest in or control of an enterprise through a pattern of racketeering activity. A defendant convicted of gaining control of a hotel in violation of this section contended that there was insufficient proof of the requisite number of acts of racketeering activity to constitute a pattern. We affirmed the conviction, noting that on February 4, 1971, this defendant had caused the interstate transport of stolen funds, in violation of 18 U.S.C. § 2314 (1970); that on February 4, he had caused the victim of his scheme to travel in interstate commerce to pick up two checks representing the stolen funds, also in violation of § 2314; and that on February 9, the defendant had caused the interstate transport of an additional check representing stolen funds, in violation of the same section. We concluded that a RICO pattern had been adequately proven: "Parness was charged with and convicted of three separate violations of § 2314. . . . Convictions on any two of these counts were sufficient under § 1961(5) to establish the 'pattern of racketeering activity' necessary for a conviction under § 1962(b)." 503 F.2d at 438.
Shortly thereafter, the district court in United States v. Moeller, 402 F. Supp. 49 (D. Conn. 1975), interpreting the statement that "any two" of the Parness acts sufficed to establish a RICO pattern as a ruling that even the very closely related acts that occurred on the same day constituted a pattern, expressed its skepticism: "While the statutory definition makes clear that a pattern can consist of only two acts, I would have thought the common sense interpretation of the word 'pattern' implies acts occurring in different criminal episodes, episodes that are at least somewhat separated in time and place yet still sufficiently related by purpose to demonstrate a continuity of activity." Id. at 57 (emphasis in original). On the authority of Parness, however, the court concluded that the kidnaping of three employees who worked in a building, followed by arson on the building on the same day, could constitute a RICO pattern in a prosecution under § 1962(c). Id. at 58.
In the meantime, the district court in United States v. Stofsky, 409 F. Supp. 609 (S.D.N.Y. 1973), aff'd on other grounds, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819, 97 S. Ct. 65, 66, 50 L. Ed. 2d 80 (1976), confronted with an attack on the constitutionality of RICO as impermissibly vague, sought to give precise content to the pattern element. The court noted that 18 U.S.C. § 3575(e) (1982), repealed by Sentencing Reform Act of 1984, Pub. L. No. 473, tit. II, §§ 212(a)(1) and (2), 235(a)(1), 98 Stat. 1987, 2031, entitled "Increased Sentence for Dangerous Special Offenders" and enacted, like RICO, as part of the Organized Crime Control Act of 1970, specified that a "pattern of criminal conduct" exists when "criminal acts . . . have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events"; it concluded that the interpretation of "pattern of racketeering activity" in RICO should be similar. Accordingly, it stated that to constitute a RICO pattern, "the racketeering acts must have been connected with each other by some common scheme, plan or motive so as to constitute a pattern and not simply a series of disconnected acts." 409 F. Supp. at 614. This Court, in affirming the eventual judgments of conviction, was not called upon to address the district court's interpretation of the "pattern" requirement.
In United States v. Weisman, 624 F.2d 1118, 1123 (2d Cir.), cert. denied, 449 U.S. 871, 66 L. Ed. 2d 91, 101 S. Ct. 209 (1980), we substantially undercut Stofsky's interpretation of the pattern requirement, for we rejected the defendants' contention that the jury should have been charged that it could not find a RICO pattern on the basis of two predicate acts "unless the predicate acts were also found to be 'related' to each other through a 'common scheme, plan or motive.'" Id. at 1121. Weisman was convicted of a number of offenses, including nine counts of securities fraud committed in 1973, nine counts of bankruptcy fraud in connection with the financial problems of a theatre opened in 1975, and one count of participating in the affairs of an enterprise through a pattern of racketeering, in violation of § 1962(c). He contended that no RICO pattern had been proven because, inter alia, the securities frauds (which the trial court had charged the jury could constitute only a single predicate act because they arose "out of the same episode," id. at 1124 n.5) and the bankruptcy frauds were not related to each other. We rejected this contention both on the facts and in principle.
Without commenting on the trial court's "same episode" theory, we concluded that even counting the nine securities frauds as one act, the securities fraud and bankruptcy frauds were all related to the theatre and could "constitute ten separate predicate acts of racketeering, any two of which would be sufficient to sustain the conviction on the RICO count." Id. at 1124. Noting that if a direct relationship between the acts were required, it had been amply proven by reason of similarity of victims, goals, and methods, id. at 1123 n.4, we stated that "the statutory language does not expressly require that the predicate acts of racketeering be specifically 'related' to each other." Id. at 1122. We agreed with Weisman that RICO was not intended to apply to sporadic and unrelated criminal acts, but we concluded that where each act was related to the conduct of the affairs of a RICO enterprise, the jury was entitled to find a RICO pattern. Id. ("the enterprise itself supplies a significant unifying link between the various predicate acts specified in section 1961(1) that may constitute a [RICO] 'pattern'").
Following our Weisman decision, we ruled that predicate acts related to an enterprise were sufficient to support a conviction under § 1962(c) even though they were not in furtherance of the enterprise, where the defendant used his position in the enterprise to commit those acts. See United States v. LeRoy, 687 F.2d 610, 616-17 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823, 74 L. Ed. 2d 1019 (1983); United States v. Scotto, 641 F.2d 47, 53-55 (2d Cir. 1980), cert. denied, 452 U.S. 961, 69 L. Ed. 2d 971, 101 S. Ct. 3109 (1981). In LeRoy, we held that a pattern was established by proof that the defendant had committed "more than two" violations of 29 U.S.C. § 501(c) (1976) or 29 U.S.C. § 186 (1976). 687 F.2d at 617. In Scotto, we held that the jury was properly instructed that in order to find a RICO pattern it needed to find that the defendant had committed "two or more" of the alleged violations of § 186. 641 F.2d at 54-55.
In United States v. Mazzei, 700 F.2d 85 (2d Cir.), cert. denied, 461 U.S. 945, 77 L. Ed. 2d 1304, 103 S. Ct. 2124 (1983), we upheld a conviction under § 1962(c) in which the enterprise was a group of persons associated in fact who traveled in interstate commerce in order to bribe contestants in various college basketball games, and the RICO pattern was defendants' attempts to influence the outcome of those basketball games, in violation of 18 U.S.C. § 224 (1976), and their interstate travel in aid of that goal, in violation of 18 U.S.C. § 1952 (1976). Mazzei contended that no RICO violation had been shown because the alleged enterprise was indistinguishable from the alleged pattern of racketeering activity. We rejected this contention, ruling that the pattern and the enterprise need not be totally "distinct and independent, as long as the proof offered is sufficient to satisfy both elements." 700 F.2d at 89. See also Moss v. Morgan Stanley, Inc., 719 F.2d 5, 22 (2d Cir. 1983) (rejecting district court's view that plaintiff in private RICO action brought under 18 U.S.C. § 1964(c) was required to allege facts showing that the enterprise had an "'independent economic significance from the pattern of racketeering activity'" (quoting 553 F. Supp. 1347, 1363 (S.D.N.Y. 1983))), cert. denied, 465 U.S. 1025, 104 S. Ct. 1280, 79 L. Ed. 2d 684 (1984).
Thus, prior to the Supreme Court's 1985 decision in Sedima and our interpretation of Sedima in United States v. Ianniello, 808 F.2d 184 (2d Cir. 1986), cert. denied, 483 U.S. 1006, 107 S. Ct. 3229, 97 L. Ed. 2d 736 (1987), this circuit had liberally construed the RICO pattern element as not requiring, in connection with § 1962(c), that the predicate acts be "specifically" related to each other, so long as they were related to the conduct of the affairs of the enterprise, and as not requiring, in connection with § ...