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U.S. v. PACCIONE
August 13, 1990
UNITED STATES OF AMERICA,
ANGELO PACCIONE, ANTHONY VULPIS, JOHN MCDONALD, A & A LAND DEVELOPMENT, AUGUST RECYCLING, INC., NATIONAL CARTING, INC., STAGE CARTING, INC., NEW YORK ENVIRONMENTAL CONTRACTORS, INC., ROSEDALE CARTING, INC., AND VULPIS BROTHERS, LTD., DEFENDANTS.
The opinion of the court was delivered by: Motley, District Judge.
On May 8, 1990, the Government rested its case. Defendants
then moved for a judgment of acquittal on all counts pursuant
to Fed.R.Crim.P. 29(a). After hearing the arguments of counsel
on May 8, 1990, the court orally denied defendants' motions for
a judgment of acquittal on all counts with Opinion to follow.
This Opinion sets forth the court's reasons for its ruling. It
also sets forth the court's finding — pursuant to United
States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied,
397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970) — with
respect to the use of co-conspirator statements as evidence
against each defendant.
In order to withstand a defendant's motion for a judgment of
acquittal on a particular count charged in an indictment, the
Government must have introduced evidence in its direct case
"upon which a reasonable mind might fairly conclude guilt
beyond a reasonable doubt" on each and every element of the
charged offense. United States v. Mariani, 725 F.2d 862, 865
(2d Cir. 1984).
The Government must also show, by a preponderance of the
evidence, that the defendant knowingly and wilfully became a
member of and participated in the conspiracy charged in the
indictment in order to permit co-conspirator statements to be
used as proof against a particular defendant pursuant to
Fed.R.Evid. 801(d)(2)(E). United States v. Geaney,
417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct.
1276, 25 L.Ed.2d 539 (1970). "[A] court, in making a
preliminary factual determination under Rule 801(d)(2)(E), may
examine the hearsay statements sought to be admitted."
Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775,
2782, 97 L.Ed.2d 144 (1987). The court is permitted "to
evaluate these statements for their evidentiary
worth as revealed by the particular circumstances of the case."
Id. at 180, 107 S.Ct. at 2781.
On the basis of the evidence outlined in this Opinion, the
court finds that the Government introduced sufficient evidence
in its direct case upon which a reasonable jury could find each
defendant's guilt beyond a reasonable doubt as to each count
charged in the indictment.*fn1 These same facts are also
sufficient to show that the defendants unlawfully, knowingly
and wilfully participated in the RICO conspiracy charged in
Count Two of the indictment.
When the indictment charges an offense as both a racketeering
act and a substantive count, the court will discuss each of
these concurrently. The court now sets out the Government's
evidence introduced at trial supporting each charge alleged in
Count One of the indictment charges each defendant with
unlawfully, wilfully, and knowingly conducting and
participating in the affairs of a racketeering enterprise
through a pattern of racketeering activity including mail and
wire fraud in violation of 18 U.S.C. § 1962(c). In order to
prove that a defendant is guilty of RICO as charged in Count
One, the Government must establish, beyond a reasonable doubt,
each of the following essential elements of the crime: (1) that
an enterprise as alleged in the indictment exists; (2) that the
enterprise affected interstate or foreign commerce; (3) that
the defendant was associated with or employed by the
enterprise; (4) that the defendant unlawfully, wilfully, and
knowingly engaged in a pattern of racketeering activity by
committing, or aiding and abetting the commission of, at least
two acts of racketeering; and (5) that the defendant conducted
or participated in the conduct of the enterprise's affairs
through that pattern of racketeering activity.
a. Existence of the Enterprise/Effect on Interstate Commerce
The court acknowledges that the first two elements of a RICO
offense that the Government must establish beyond a reasonable
doubt apply generally to each defendant: the existence of the
enterprise as defined by the RICO statute,
18 U.S.C. § 1961(4), and the effect of that enterprise on interstate or
According to the RICO statute, any "group of individuals [who
are] associated in fact although not a legal entity" may
constitute an "enterprise." 18 U.S.C. § 1961(4). This
includes an enterprise which consists of individuals,
corporations, and partnerships as alleged in the indictment.
United States v. Paccione, 738 F. Supp. 691 (S.D.N.Y. 1990),
citing United States v. Huber, 603 F.2d 387, 393-94 (2d Cir.
1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d
759 (1980) (group of corporations constituted "association in
fact" enterprise). In addition, a single entity can be both a
RICO "person" and one of the members of the RICO "enterprise."
Cullen v. Margiotta, 811 F.2d 698, 729-30 (2d Cir.), cert.
denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987).
The fact that the entities named in the indictment as "persons"
are alleged to be constituent members of the same enterprise
does not invalidate the RICO counts. United States v. Paccione,
738 F. Supp. 691 (S.D.N.Y. 1990).
Proof as to the existence of the enterprise charged in the
indictment would include facts showing the defendants to be
part of an ongoing organization, formal or informal, and that
the enterprise functions as a continuing operation with a core
of personnel who function as a continuing unit. United States
v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246
(1981); see also, U.S. v. Indelicato, 865 F.2d 1370 (2d Cir.
1989) (en banc), cert. denied, ___ U.S. ___, 110 S.Ct. 56, 107
L.Ed.2d 24 (1989).
The indictment charges that the defendants were part of a
racketeering enterprise whose purposes included the enrichment
of the individual defendants and their affiliated partnership
and corporations through the operation of an illegal landfill
and the disposal of waste materials in violation of federal,
state, and local law. In pursuit of its goal, the indictment
charges that the enterprise engaged in various illegal
activities including avoiding federal, state, and city
regulations relating to the operation of a landfill and the
disposal of waste materials, and defrauding New York State and
City of licenses, licensing fees, and dumping fees. In
addition, the indictment charges that the enterprise defrauded
generators of medical waste by charging them the rates required
for the lawful transfer, storage, and disposal of such waste
which was higher than the rates actually incurred by
transferring, storing, and disposing of the waste unlawfully.
In doing so, the indictment alleges, the enterprise exposed
these waste generators to potential civil and criminal
The existence of the alleged enterprise is supported by
testimony of government officials who had dealings with
defendants Paccione and Vulpis, acting on behalf of the
partnership and corporate defendants, as well as the testimony
of a government investigator who observed the operations of the
Allison Lewis-Smith, an official at the New York City
Department of Sanitation ("DOS") whose responsibilities
included issuing letters of acknowledgement for clean fill
grading operations, testified that defendants Paccione and
Vulpis filed an application for a clean fill grading permit in
April 1988 on behalf of defendant A & A Land Development, a
partnership which was equally owned by Paccione and Vulpis.
Lewis-Smith issued a letter of acknowledgement to A & A Land
Development for a clean fill grading operation on a parcel of
land owned by Kenneth I. Wilpon as Agent, Inc. However,
according to the testimony of numerous Government witnesses,
Paccione and Vulpis instead used this permit for the disposal
of waste on the property owned by CSX Transportation, Inc.
In addition, there was evidence that Paccione and Vulpis,
also on behalf of A & A Land Development, caused permits to be
issued by the Department of Transportation ("DOT"). Lynn Fealy,
permit supervisor at the DOT, testified that Vulpis submitted
several applications for street opening permits which showed
the purpose of the permit as placing fill. These street opening
permits were approved and issued to Vulpis, Paccione, and A &
A Land Development. Again, according to numerous Government
witnesses, the defendants used these street opening permits in
the operation of the landfill.
Evidence that the defendants August Recycling, Inc.
("August"), National Carting, Inc. ("National"), Stage Carting,
Inc. ("Stage"), Rosedale Carting, Inc. ("Rosedale"), and Vulpis
Brothers, Ltd. ("Vulpis Brothers") were also members of the
enterprise can be found in testimony that these companies
disposed of waste materials at the A & A landfill site. It is
undisputed that August, National, and Stage are owned by Angelo
Paccione and that Anthony Vulpis is a co-owner of Rosedale and
Vulpis Brothers. Peter Lizzio, an investigator of environmental
crimes for the New York City Department of Investigations,
testified that during his surveillance of the Arlington Yard
site from May 1988 to September 1988, he regularly observed
numerous trucks belonging to these defendant corporations
dumping at the landfill. The videotapes and photographs taken
by Lizzio's team support his testimony.
The existence of the enterprise is further supported by
evidence of the working relationship between the defendant
companies of Paccione and Vulpis. For example, while Coney
Island Hospital entered into an agreement with National, one of
Paccione's companies, to have their medical waste removed, the
delivery receipts introduced into evidence indicate that
Rosedale, one of Vulpis' companies, was the actual shipper of
As to the effect of the enterprise's activities on interstate
commerce, the Government has introduced evidence that there
were numerous phone calls and letters from defendants Paccione,
Vulpis and Weiss on behalf of A & A Land Development to
representatives of CSX Realty Corporation, a company which
conducts business nationwide, while these representatives were
in the CSX Realty offices in Richmond, Virginia. As a result of
these correspondences, the CSX representatives took a number of
flights from their base office in Virginia to Newark Airport in
New Jersey, where they were then brought to the Staten Island
landfill site to discuss matters affecting CSX business.
According to the evidence in support of racketeering acts 3d
and 4a-i, discussed below, the enterprise schemed to defraud
CSX Transportation, a company headquartered in Florida, of the
value of its New York property.
Moreover, in a tape recorded meeting with Allison Lewis-Smith
of the DOS, Paccione said that the defendants were transporting
the medical waste they picked up from generators to a facility
in South Carolina. However, the testimony of numerous
Government witnesses indicates that most of the waste was never
transported to this facility. Instead, according to those
witnesses, the defendants transported the waste to other
locations, including the Staten Island landfill.
The remaining elements of a RICO offense — association with
or employment by the enterprise; knowing, wilful and unlawful
commission of a pattern of racketeering activity; and
participation in the conduct of the enterprise's affairs
through that pattern of racketeering activity — requires
specific application as to each defendant.
b. Association with the Enterprise
The evidence set forth in this Opinion concerning the
existence of the enterprise and the defendants' participation
in it is also sufficient to support the inference that each of
the defendants was aware of the existence of the criminal
enterprise, was associated with and employed by the enterprise,
and knowingly and intentionally participated in the
enterprise's illegal activities.
c. Pattern of Racketeering Activity
The fourth element of a RICO offense which the Government
must prove beyond a reasonable doubt is that a defendant
unlawfully, wilfully, and knowingly engaged in a pattern of
racketeering activity with the intention of furthering the
goals of the enterprise. This is achieved by committing or
aiding and abetting the commission of at least two acts of
racketeering by common participants, victims, methods,
purposes, or results and demonstrating a threat of continued
racketeering activity, if not continuity in fact. H.J. Inc. v.
Northwestern Bell Telephone Co., 492 U.S. ___, 109 S.Ct. 2893,
106 L.Ed.2d 195 (1989); see also, United States v. Indelicato,
865 F.2d 1370, 1382 (2d Cir. 1989) (en banc), cert. denied, ___
U.S. ___, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989).
The racketeering acts charged in the indictment all involve
violations of either mail fraud or wire fraud on the part of
the defendants. The statute that establishes the mail fraud
offenses charged in Counts 3-12 and Racketeering Acts 1(a-e),
2, 3(a-e), 4(a-c), 5-11, 12(a-c), and 13-17 of the ...