Defendants appeal from judgments entered after jury verdicts convicting them of multiple charges including conspiracy to violate RICO, extortion, bid-rigging, receiving illegal employer payoffs, receiving unlawful payments to influence the operation of an employee benefit fund, mail fraud, perjury, obstruction of justice, and arson. Affirmed.
Defendants Philip Rastelli, Nicholas Marangello, Joseph Massino, Carmine Rastelli, James Vincent Bracco, Charles Martelli, Charles Agar, Anthony Cantatore, Warren Weissman, and Dominic Mariani appeal from judgments entered against them in the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, convicting them of various offenses arising from their participation in a wide variety of criminal activities designed to obtain money from the New York moving and storage industry.
Because we find no merit in any of the numerous contentions defendants raise on appeal, we affirm the conviction of each defendant on each count upon which he was convicted.
Seventeen defendants were originally charged in a sixty-four count indictment with leading, managing, and participating in a racketeering enterprise which had as its object the control and use of a union--the International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen's and Appliance Home Delivery Union (Local 814)--to obtain money from New York moving and storage companies through various schemes and acts of extortion, rigging bids for government contracts, requiring unlawful employer payoffs, and receiving and making illegal payments to union representatives. In exchange for the payoffs, the companies received, according to the indictment, labor peace, lucrative government contracts, relaxed enforcement of union rules and contracts, and other benefits.
The indictment charged that from approximately January 1, 1964, to June 11, 1985, all the appealing defendants operated through an enterprise consisting of individuals from the following four groups "associated in fact" within the meaning of 18 U.S.C. § 1961 (4): (1) members and associates of the Bonanno organized crime family which is connected to the nationwide criminal organization known as "La Cosa Nostra"; (2) officers, representatives, members and employees of Local 814; (3) trustees, administrators, representatives, and employees of Local 814's Welfare Fund, Pension Fund, and Annuity Fund; and (4) owners, officers, representatives, and employees of various moving and storage companies and other businesses.
Following a six-month jury trial, all appealing defendants except Agar were convicted of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d) (1982). Various defendants were also convicted of other substantive crimes including receiving illegal payments from employers in violation of the Taft-Hartley Act, 29 U.S.C. § 186(b)(1) and (d); conspiring to commit extortion, 18 U.S.C. § 1951; making illegal payments to union representatives, 29 U.S.C. § 186(a)(2) and (d); receiving or making payments to influence the operation of an employee benefit plan, 18 U.S.C. § 1954; making false declarations to a grand jury and obstructing justice, 18 U.S.C. § 1623(a) and 18 U.S.C. § 1503; conspiring to violate the Taft-Hartley Act, 29 U.S.C. § 186(a)(2) and (b)(1) and 18 U.S.C. § 1954; and conspiring to commit and committing mail fraud, 18 U.S.C. §§ 371 and 1341. The jury found the appealing defendants guilty on some charges and not guilty on others.
The eight appellate briefs raise thirty-one separate issues for consideration. Having carefully reviewed each contention, we find no merit in any of them; indeed, most of the contentions are not even worthy of discussion. Because of their importance or their novelty in this circuit, however, the following eight issues warrant brief discussion: (1) whether there was sufficient evidence to support certain convictions; (2) whether Bracco and Martelli's convictions for mail fraud were improperly based on the intangible rights theory rejected by the Supreme Court in McNally v. United States, 483 U.S. 350, 97 L. Ed. 2d 292, 107 S. Ct. 2875 (1987); (3) whether a RICO conspiracy conviction can be based on commission of racketeering acts under an aider and abettor theory; (4) whether the government's loss of allegedly exculpatory tape recordings and bid documents requires reversal of Weissman's convictions; (5) whether a district court may, sua sponte, send the jury back to consider its verdict without first polling them to determine if there is a lack of unanimity when the foreman indicates that there is uncertainty regarding the jury's verdict; (6) whether the government made impermissible use of immunized grand jury testimony; (7) whether a coconspirator's statement explaining the disbursement of extorted money was "in furtherance" of the conspiracy; and (8) whether claims against defendant Marangello are barred by the statute of limitations.
1. Sufficiency of the Evidence
Seven defendants claim on appeal that the evidence was insufficient to support the jury's guilty verdicts on specific counts. Although we discuss only the strongest of these claims, we find all to be nonmeritorious.
A defendant challenging the sufficiency of the evidence on appeal bears a heavy burden. United States v. Arocena, 778 F.2d 943, 950 (2d Cir. 1985), cert. denied, 475 U.S. 1053, 89 L. Ed. 2d 588, 106 S. Ct. 1281 (1986); United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S. Ct. 2945, 73 L. Ed. 2d 1341 (1982). We determine on review only if, viewed in the light most favorable to the government) there is substantial evidence to support the jury's findings. See Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942). Furthermore, all issues of credibility must be considered to lie solely within the jury's province, and all reasonable inferences must be drawn in the government's favor. United States v. Friedman, 854 F.2d 535, 553 (2d Cir. 1988); United States v. Singh, 628 F.2d 758, 765-66 (2d Cir.), cert. denied, 449 U.S. 1034, 101 S. Ct. 609, 66 L. Ed. 2d 496 (1980).
a. Knowing Association with the Enterprise
Defendants Massino, Weissman, and Cantatore contend that there was insufficient evidence to establish their knowing association with the RICO enterprise, grounding their insufficiency claims primarily on the reasoning of a district court decision, United States v. Castellano, 610 F. Supp. 1359 (S.D.N.Y. 1985), which they claim requires the government to prove that each member of a RICO conspiracy is aware of each specific component of the enterprise. Massino, a "capo" or captain in the Bonanno family, argues that there is no evidence that he knew that members of Local 814's pension and welfare fund comprised a component of the enterprise. Weissman, an employee, officer, and representative of a moving company called Deluxe Vans Inc., argues a lack of evidence that he knew that the Bonanno family, by its specific name, was connected to the enterprise. Cantatore, who was at various times an auditor for Local 814's benefit funds and a delegate and organizer for Local 814, also argues that the evidence did not establish his knowledge of the organized crime component.
We note first that defendants' arguments are based on a misconception of the Castellano holding. The district court in that case held only as follows:
Any defendant prosecuted under section 1962(c) must be shown to have been aware of at least the general existence of the enterprise named in the indictment. * * * The government [must] show, at a minimum, that the defendant was aware of the existence of a group of persons, organized into a structure of some sort, and engaged in ongoing activities, which the government can prove falls within the definition of enterprise contained in section 1961(4).
Castellano, 610 F. Supp. at 1401. The court in Castellano went on to find that knowledge of the enterprise could be inferred from evidence of close association with other conspirators with the required knowledge and from participation with members of the enterprise in meetings and activities that furthered the enterprise's affairs. In short, Castellano did not require the government to prove that a defendant knew by name the specific organized crime family involved or the specific components of the enterprise; it required only proof of a defendant's awareness of the general nature of the enterprise.
Second, even if Castellano could be construed to require that each member of a RICO conspiracy have specific knowledge of every member and component of the enterprise, that district court ruling would not bind this court. Viewing the argument afresh, we believe such a proposition would be unrealistic in organized crime cases. Focusing on a RICO conspiracy, the government need not prove that a conspirator-defendant agreed with every other conspirator, or knew all the other conspirators, or had full knowledge of all the details of the conspiracy. All that we require is that the defendant agree to commit the substantive racketeering offense through agreeing to participate in two predicate acts, see United States v. Persico, 832 F.2d 705, 713 (2d Cir. 1987), cert. denied, U.S. , 108 S. Ct. 1595, 99 L. Ed. 2d 910 (1988), and that he know the general nature of the conspiracy and that the conspiracy extends beyond his individual role. See, e.g., United States v. Friedman, 854 F.2d at 562 ("there is no requirement that each member of a [RICO] conspiracy conspire directly with every other member"); United States v. De Peri, 778 F.2d 963, 975 (3d Cir. 1985) (conspirator need not know identity of all coconspirators nor all details of the conspiracy to be found to have agreed to participate in it), cert. denied, 475 U.S. 1110, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); United States v. Tillett, 763 F.2d 628, 632 (4th Cir. 1985) (government need only prove that "defendant participated in the conspiracy with knowledge of the essential nature of the plan[ ]"); United States v. Pepe, 747 F.2d 632, 659-60 (11th Cir. 1984) (government need not establish that each conspirator agreed with all other conspirators, knew his fellow conspirators, or knew all details of the conspiracy in order to prove a RICO conspiracy); United States v. Elliott, 571 F.2d 880, 903-04 (5th Cir.) (government must prove only that RICO conspirator had knowledge of the essential nature of the plan), cert. denied, 439 U.S. 953, 58 L. Ed. 2d 344, 99 S. Ct. 349 (1978).
We will require no more with regard to a RICO conspirator's knowledge of the enterprise than we have with regard to his knowledge of the overall conspiracy: it is sufficient that the defendant know the general nature of the enterprise and know that the enterprise extends beyond his individual role. See, e.g., United States v. Schell, 775 F.2d 559, 568-69 (4th Cir. 1985), cert. denied, 475 U.S. 1098, 89 L. Ed. 2d 898, 106 S. Ct. 1498 (1986). See also United States v. Heinemann, 801 F.2d 86, 92 n. 2 (2d Cir. 1986), cert. denied, 479 U.S. 1094, 94 L. Ed. 2d 163, 107 S. Ct. 1308 (1987).
In this case, the general nature of the enterprise involved a group of individuals including employers, union officials, and others who associated together to funnel illegal payments from employers to union representatives through various criminal activities. The record contains overwhelming evidence from which the jury could have found that Massino, Weissman, and Cantatore were aware of this general nature and knew that the enterprise extended beyond the individual role of each. We therefore find the evidence sufficient to establish that each knowingly associated with the RICO enterprise.
b. Taft-Hartley Christmas Payoffs
Defendants Agar and Cantatore argue that there was insufficient evidence to convict them of receiving, agreeing to receive, or aiding and abetting the receipt of unlawful employer payoffs or "Christmas gifts" in 1979, 1980, and early 1982, in violation of the Taft-Hartley Act, 29 U.S.C. § 186(b). Section 186(b) makes it unlawful for any person to "request, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or thing of value" prohibited by § 186(a). 29 U.S.C. § 186(b). Section 186(a) prohibits employers from paying, delivering, or agreeing to pay or deliver any money or other thing of value to labor union officials who represent the employer's employees or who seek to do so.
Agar and Cantatore advance identical claims that the government, in order to expand the number of counts in the indictment, chose to list the Christmas payoffs from different employers in separate counts in the indictment, but then failed to establish that Agar and Cantatore received or agreed to receive the illegal payments from each of the companies listed in the separate counts. This claim is based in part on the fact that the chief government witness, Anthony Giliberti, admitted that beginning in 1979, he kept for himself portions of the employer payments he collected. We hold that the evidence was sufficient to support conviction on each count.
Agar and Cantatore were present when the employer payments were distributed in 1979, 1980, and early 1982 and each received a share in accord with the usual procedure. Under that procedure, Giliberti and others collected the payoffs from the employers and gave the money to Charles Martelli, telling Bracco and Martelli which employers had given the money. The money was then put in envelopes which were marked with the initials of the contributing company, and the envelopes were added to the "slush fund" to be distributed during the Christmas season. At meetings in 1979, 1980, and early 1982 held to distribute the money, the money was taken from the envelopes, counted, and divided into stacks. It was then put into other envelopes and distributed to certain organized crime figures as well as to the union officials present, including Agar and Cantatore.
True, the evidence on some counts was meager. In fact the trial judge found, in his ruling on forfeitures, that Giliberti in 1979 began pocketing "unspecified portions" of the monies he collected and that "it appears that on some occasions [he] kept all of the money * * * and on other occasions he 'split' the money, putting some in the slush fund and some in his pocket." (emphasis added). Nevertheless, viewing the evidence in the light most favorable to the government, we are satisfied that a reasonable jury could have concluded beyond a reasonable doubt that Giliberti put portions of each payment into the Christmas fund, that Agar and Cantatore actually received shares of each of the employer payments listed in each count of the indictment, and that they knew the identities of the employers.
Moreover, the evidence that Agar and Cantatore attended the Christmas distribution meetings, received shares of the money, personally collected some employer payments, and knew that others were collecting similar employer payments was sufficient for the jury to conclude beyond a reasonable doubt that Agar and Cantatore had agreed to receive or accept payments from each employer who contributed; thus it did not matter that some of the payments turned over to their coconspirators may never have reached Agar and Cantatore's hands.
c. Bid-Rigging Conspiracy
Defendant Agar also argues that there was insufficient evidence to support his conviction on count 27, which charged a conspiracy to rig bids for government contracts in order to decrease competition for the contracts, because there was no evidence that when he collected payoffs from Warren Wagner, Agar was aware of the "bid-rigging purpose" of the payments. We find the evidence more than sufficient to establish Agar's knowledge of the bid-rigging purpose.
Existence of and knowing participation in a conspiracy may be established entirely from circumstantial evidence. United States v. Rubin, 844 F.2d 979, 983-84 (2d Cir. 1988); United States v. Martino, 759 F.2d 998, 1002-04 (2d Cir. 1985); United States v. Sanzo, 673 F.2d 64, 69 (2d Cir.), cert. denied, 459 U.S. 858, 74 L. Ed. 2d 111, 103 S. Ct. 128(1982). Here, the evidence showed that each month from February to June 1980, Agar, at codefendant Bracco's request, collected $2000 from Wagner as Wagner's payment to continue participation in the bid-rigging scheme.
In addition, Agar helped Bracco, Wagner, and other conspirators eliminate a competitor of Wagner, called Henley Holmes, which had submitted a lower bid than that of Wagner, by helping Wagner conceal his use of less costly, nonunion labor once Henley Holmes had been eliminated. From the responsibility Agar was given in collecting Wagner's large payments and from Agar's critical role in concealing Wagner's use of nonunion labor after Wagner had ...