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UNITED STATES v. BLOOME

February 7, 1992

UNITED STATES OF AMERICA, against MICHAEL BLOOME, a/k/a "Smurf," JOSEPH DeFIGUEROA, a/k/a "Mayo," PHILIP DeANGELO, SALVATORE FUSCO, a/k/a "Sally," THOMAS ROBERTO, RICHARD SANTIAGO, FRANK SMITH, a/k/a "Frankie," ANGEL SOTO, PETER SPOTO, ANTHONY VEGA, ANTHONY ZAPPOLA, GEORGE ZAPPOLA, a/k/a "Little George," and VINCENT ZAPPOLA, a/k/a "Vinnie," Defendants.


The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Defendants Michael Bloome, Salvatore Fusco, and Vincent Zappola were convicted at trial on the first thirteen counts of a fourteen-count superseding indictment. After the jury verdict, each of these three defendants waived his right to trial by jury on the fourteenth count (for forfeiture under 18 U.S.C. § 1963(a) (3) of the proceeds of the racketeering activity of which the defendants were convicted in counts one and two). This court then found that the government had established beyond a reasonable doubt that the defendants were jointly and severally liable for $ 1,740,000.00 to be forfeited to the United States under count fourteen. United States v. Bloome, 777 F.Supp. 208 (E.D.N.Y. 1991). These three defendants have now moved under Federal Rule of Criminal Procedure 29(c) that the court set aside the jury verdict on every count of the superseding indictment; the government opposes the defendants' motion. For the reasons set forth below, that motion is denied in its entirety.

 DISCUSSION

 Federal Rule of Criminal Procedure 29(c) provides that a court, on the motion of a defendant after a guilty verdict, may "set aside the verdict and enter judgment of acquittal." The standards for review of a jury verdict (or for entering judgment of acquittal at the end of the government's case) are straightforward:

 When a defendant moves for a judgment of acquittal, the Court "must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If [it] concludes that upon the evidence there must be such a doubt in a reasonable mind, [it] must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If [it] concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [it] must let the jury decide the matter."

 United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (quoting United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972) (quoting Curley v. United States, 81 App. D.C. 389, 160 F.2d 229, 232-33 (D.C.Cir.), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947))). The defendants here attack the verdicts on the first thirteen counts of the superseding indictment (and, derivatively, the decision of this court as to the fourteenth count). Each argument is considered in turn.

 1. Counts One, Two, and Fourteen: The RICO Counts

 Counts one and two of the superseding indictment charged the defendants with violation of the Racketeer-Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961 et seq., and with conspiracy to violate RICO. Count Fourteen is a count under 18 U.S.C. § 1963(a) (3) for the forfeiture of the proceeds of the racketeering activity of counts one and two. The defendants argue that the verdicts on these counts must be set aside because the government "failed to prove that the Racketeering Acts were related to each other and to the same enterprise." Memorandum of Defendants at 9. The defendants reason that one predicate-act burglary "was committed by a group of people (enterprise) that was unknown to and totally different from the group that committed" a second predicate-act burglary. Id. In other words, the defendants argue, because the actual participants of the charged predicate acts may have differed from act to act, the government has failed to prove either the existence of an "enterprise" or any "relatedness" among the discrete instances of racketeering activity.

 The defendants are entirely incorrect to suggest that, under RICO, different groups of persons committing different predicate acts necessarily constitute different enterprises. One enterprise may, as did the enterprise in this case, have different members at different moments in its existence. United States v. Coonan, 938 F.2d 1553, 1560 (2d Cir. 1991) (affirming RICO conviction when, inter alia, membership of enterprise changed over time).

 As a matter of establishing the "pattern" requirement of RICO, the government must demonstrate that the charged predicate racketeering acts are "related." H.J. Inc., v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989). As the Second Circuit has made clear, such "relatedness" -- or "an interrelationship between [predicate] acts" -- "may be established in a number of ways." United States v. Indelicato, 865 F.2d 1370, 1382 (2d Cir.), cert. denied, 493 U.S. 811, 107 L. Ed. 2d 24, 110 S. Ct. 56 (1989). Among these avenues of proof are:

 proof of . . . temporal proximity, or common goals, or similarity of methods, or repetitions. [Furthermore,] the degree to which these factors establish a pattern may depend on the degree of proximity, or any similarities in goals or methodology, or the number of repetitions.

 Id. In this case, "relatedness" is readily demonstrated by the "temporal proximity, . . . common goals, [and] similarity of methods" of the predicate acts: Within a period of three years, the defendants committed numerous sophisticated burglaries of commercial establishments. In all these burglaries, the members of this RICO enterprise employed similar modi operandi. As the indictment charged -- and as the government demonstrated at trial:

 Typically, members of the [enterprise] would sever the telephone lines leading to the burglarized premises. Members would then make a hole in the roof of the establishment using a pick axe and once inside smash any alarm boxes. Other members of the [enterprise] would remain outside the premises, conducting surveillance for police while maintaining radio communications with those members . . . inside the burglarized premises. Finally, members of the [enterprise] would seek out any safes in the burglarized premises and open them using a unique drilling method . . . .

 In short, the nature of the predicate acts -- as well as the way in which they were committed and the time period within which they were committed -- established the "relatedness" requirement of the "pattern" element of the RICO statute under Indelicato. Thus, the defendants' challenge to their guilty verdicts on the first and second counts of the superseding indictment necessarily fails; by extension, their challenge to count fourteen is also without merit.

 2. Counts Three and Six: 18 U.S.C. § 659

 Count three of the superseding indictment charged that the defendant Fusco violated 18 U.S.C. § 659 by possessing goods (with a value over $ 100.00) that he knew to be stolen and that had been a part of an interstate shipment. This count refers to Fusco's possession of certain jewelry stolen from the Jewelers of Bond Street in Nassau County, New York. Count six of the indictment charged that the defendants Bloome and Zappola violated 18 U.S.C. § 659 by stealing goods (with a value over $ 100.00) that were a part of an interstate shipment. This count refers to their theft of Bulova watches during a burglary of the Bulova Watch Company facility in Queens, New York. As to both these counts, the defendants contend that the jury verdicts should be set aside because the government failed to prove that the goods in question were a "part of an interstate shipment."

 As a threshold matter, certain general observations about Section 659 are in order. First, there is a division of authorities on the question whether the "interstate shipment" component of Section 659 is an element of the crime itself or is simply a jurisdictional prerequisite for trial in a federal court. Compare United States v. Bizanowicz, 745 F.2d 120, 122 (1st Cir. 1984) ("interstate shipment" component an "essential element of the crime") with United States v. Hankish, 502 F.2d 71, 76 (4th Cir. 1974) ("interstate shipment" component "simply a jurisdictional peg . . . not . . . an element of the criminal offense"). Regardless of the answer to this question, the defendants are correct in their argument that, if the government failed to demonstrate that the goods in counts three and six were "part of an interstate shipment", their convictions in this federal court must be set aside.

 The leading case on Section 659 in this circuit, United States v. Astolas, 487 F.2d 275 (2d Cir. 1973), cert. denied, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305 (1974), instructs that "Section 659 is designed by the Congress to promote the flow of goods in interstate commerce" and that "the carrying out of this purpose is not to be hampered by technical legal conceptions." Id. at 279. See also United States v. Bryser, 954 F.2d 79, No. 91-1220, slip op. at 1037 (2d Cir. Jan 14., 1992) ("This court has long interpreted § 659 as evincing Congress' intention to protect the integrity of interstate commerce and to prevent interference with the flow of that commerce."). Among the "technical legal conceptions" which are to be avoided in construing the scope of Section 659 is any notion that the goods in question must be actually moving in interstate commerce at the time they are stolen. Astolas, 487 F.2d at 279; see also Bizanowicz, 745 F.2d at 122 ("It is not necessary for the goods . . . to be actually moving in ...


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