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UNITED STATES v. DELANO

January 22, 1993

UNITED STATES OF AMERICA,
v.
ROBERT DELANO, Defendant.


ARCARA


The opinion of the court was delivered by: RICHARD J. ARCARA

INTRODUCTION

 Defendant Robert Delano was charged in a ten-count indictment with: RICO; Conspiracy to Commit RICO; Theft of Government Funds; two counts of Extortion under the Hobbs Act; Mail Fraud; Conspiracy to Commit Mail Fraud; and three counts of violating the Clean Water Act. The trial commenced on July 27, 1992, and on October 22, 1992, the jury returned guilty verdicts on Counts I through V--Count I, RICO; Count II, RICO Conspiracy; Count III, Theft of Government Funds; and Counts IV and V, the two Hobbs Act counts. Defendant was found not guilty on Counts VI through X.

 With respect to Counts I and II, the jury found that defendant committed racketeering acts A(iv); B(i), B(ii), B(iv); C; L; and O.

 Racketeering act A(iv) charged Hobbs Act extortion, under color of official right, regarding work done by Clyde Mays Tree Experts on land owned by Thomas Greco and Dominic Chirico.

 Racketeering acts B(i), B(ii) and B(iv) involved work done on land owned by Ralph Degenhart. B(i) charged New York State larceny by extortion in obtaining the labor of City of Buffalo Parks Department ("Parks Department") employees; B(ii) charged New York State larceny by extortion in obtaining the value of services of Clyde Mays Tree Experts; and B(iv) charged Hobbs Act Extortion, under color of official right, in obtaining the value of services of Clyde Mays Tree Experts.

 Racketeering act C charged New York State larceny by extortion in obtaining the labor of Parks Department employees with regard to work done on land owned by Josephine LoMeo.

 Racketeering act L charged New York State larceny by extortion in obtaining the labor of Parks Department employees with regard to work done on land owned by the Buffalo Tennis and Racquetball Center.

 Racketeering act O charged New York State larceny by extortion in obtaining the labor of Parks Department employees with regard to work done on land owned by St. Timothy's Church.

 On December 3, 1992, defendant made a motion, pursuant to Fed. R. Crim. P. 29, for judgment of acquittal or, in the alternative, for a new trial pursuant to Rule 33.

 DISCUSSION

 Rule 29: Judgment of Acquittal

 Defendant has moved pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure for judgment of acquittal. Rule 29 states that the court should enter a judgment of acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses."

 The standard to be applied in considering such a motion was stated in United States v. Taylor:

 
The true rule, therefore, is that a trial judge, in passing upon a motion for [judgment] of acquittal, 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 he [or she] concludes that upon the evidence there must be such a doubt in a reasonable mind, he [or she] 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 he [or she] concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he [or she] must [let the verdict stand].

 464 F.2d 240, 243 (2d Cir. 1972) (quoting Curley v. United States, 81 U.S. 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)); see also United States v. Mariani, 725 F.2d 862 (2d Cir. 1984); United States v. Artuso, 618 F.2d 192 (2d Cir.), cert. denied, 449 U.S. 861, 66 L. Ed. 2d 77, 101 S. Ct. 164 (1980).

 In evaluating the evidence produced in the government's case in chief, the Second Circuit has also stated that while:

 
[a] reasonable mind must be able to conclude guilt on each and every element of the charged offense, "all reasonable inferences are to be resolved in favor of the prosecution and the trial court is required to view the evidence in the light most favorable to the Government with respect to each element of the offense."

 Mariani, 725 F.2d at 865 (quoting United States v. Rodriguez, 702 F.2d 38, 41 (2d Cir. 1983)).

 Furthermore, the evidence is to be viewed 'not in isolation but in conjunction."' Id. (quoting United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir. 1969), cert. denied, 397 U.S. 1028 (1970)). These rules are designed to prevent the usurpation of the jury's function. It is well established that "the court should not substitute its own determination of the credibility of witnesses, the weight of the evidence and the reasonable inferences to be drawn for that of the jury." Id. (citing Rodriquez, 702 F.2d at 41 (citations omitted)).

 Defendant asserts that the evidence presented at trial was insufficient to sustain the jury verdicts on Counts I through V.

 I. Counts I, II, IV and V

 In order to be found guilty of violating the RICO statute, the government must prove beyond a reasonable doubt: (1) that an enterprise existed; (2) that the enterprise affected interstate commerce; (3) that the defendant was associated with or employed by the enterprise; (4) that the defendant engaged in a pattern of racketeering activity; and (5) that the defendant conducted or participated in the conduct of the enterprise through that pattern of racketeering activity. 18 U.S.C. § 1962(c).

 Defendant asserts that judgment of acquittal should be entered on Counts I and II because the jury could not reasonably have found that the first and fourth elements, that is, existence of an enterprise and pattern of racketeering activity, had been proven. As to Count II, defendant also asserts that the jury could not reasonably have found that the element of conspiracy had been proven.

 Resolving all reasonable inferences in favor of the prosecution, and viewing the evidence in the light most favorable to the government with respect to each element of the offense, the Court finds that the jury could reasonably have found defendant guilty of RICO and RICO Conspiracy beyond a reasonable doubt.

 A. Existence of an Enterprise

 Although defendant asserts that the government did not establish that the City of Buffalo Parks Department constituted a RICO enterprise, he offers no legal authority that would suggest that it was not.

 In order to establish the existence of an enterprise, the government need only prove that the Parks Department is a legal entity such as a corporation or association, which existed and continued to exist in essentially the same form during substantially the entire period charged in the indictment.

 The government satisfied its burden of proof on this element. Under the statute, 18 U.S.C. § 1961(4), the term "enterprise" is defined expansively to "include" any individual, partnership, corporation, association, or other legal entity. Noting that Congress has mandated a liberal construction of the RICO statute in order to effectuate its remedial purposes, and pointing to the expansive statutory definition of the term, courts have held that the list of enumerated entities in § 1961(4) is not exhaustive but merely illustrative. United States v. Aimone, 715 F.2d 822, 828 (3d Cir. 1983), cert. denied, 468 U.S. 1217 (1984); United States v. Angelilli, 660 F.2d 23, 31 (2d Cir. 1981), cert. denied, 455 U.S. 910, 945 (1982). Public and governmental entities as well as private entities can constitute RICO enterprises. United States v. Lee Stoller Enters., Inc., 652 F.2d 1313, 1318 (7th Cir.), cert. denied, 454 U.S. 1082 (1981).

 The government established that the Parks Department was a legal entity. Laurence Rubin and Thomas Keenan testified at trial that the Parks Department was part of the City of Buffalo, and thus, clearly a legal entity for purposes of § 1961(4). See United States v. Griffin, 660 F.2d 996, 999 (4th Cir. 1981), cert. denied, 454 U.S. 1156 (1982) ("If contested at all, [the existence of the RICO enterprise] would involve proof simply of the 'legal' existence of the corporation, partnership or other legal form of organization charged.").

 B. Pattern of Racketeering Activity

 The fourth element of a RICO charge is that the defendant engaged in a pattern of racketeering activity. A defendant engages in a pattern of racketeering activity if he or she commits at least two racketeering acts within ten years of each other, which are sufficiently related to constitute a pattern. The jury found that defendant committed racketeering acts A(iv), B(i), B(ii), B(iv), C, L and O.

 With respect to this element of Counts I and II, defendant essentially asserts two arguments: (1) that the government did not present sufficient evidence to establish that defendant committed any of the racketeering acts that the jury found he had committed; and (2) in the event there was sufficient evidence for the jury to find that the racketeering acts were committed, the government did not satisfy its burden of proving that these racketeering acts constituted a pattern of racketeering activity for purposes of this element.

 1. Sufficiency of Proof on Racketeering Acts:

 The racketeering acts charged in Counts I and II of the indictment involved either extortion under federal law--the Hobbs Act, or larceny by extortion under New York law.

 a. Hobbs Act Convictions:

 As to the Hobbs Act charges--racketeering acts (A)(iv) and B(iv)--defendant argues that the jury could not reasonably have found that he intended to induce fear, or that he obstructed interstate commerce by extortion. These arguments also serve as the basis for defendant's motion for judgment of acquittal on Counts IV and V, which involve the same charges as racketeering acts A and B.

 Resolving all reasonable inferences in favor of the prosecution, and viewing the evidence in the light most favorable to the government with respect to each element of the offense, the Court finds that the jury could reasonably have found defendant ...


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